State, Ex Rel. Booth, v. Robinson

• Decision Date: 06 March 1929
• Docket Number: 21266,21315
• Parties: The State, Ex Rel. Booth, v. Robinson, Probate Judge.
• Court: Ohio Supreme Court

165 N.E. 574

120 Ohio St. 91

The State, Ex Rel. Booth, v. Robinson, Probate Judge.

Nos. 21266 , 21315

Supreme Court of Ohio

March 6, 1929

Adoption - Consent of one divorced parent, approved by court sufficient - Consent of other parent not required - Section 8025, General Code - Constitutional law.

1.

Where in a proceeding for the adoption of a child of divorced parents the consent of the parent to whom the sole custody of such child had been awarded is duly given and the court which granted such decree approves the same as provided by Section 8025, General Code, the consent of the other parent is not required.

2.

Such provisions of the statute are not in contravention of either the state or federal constitution.

IN PROHIBITION.

The first-named action is an original action in this court wherein the relatrix seeks a writ of prohibition. Issue was made by demurrer to the petition. The essential averments appearing in the petition may be concisely stated as follows: In December, 1926, in the court of common pleas of Portage county, William Clapp, Jr., was awarded a divorce from the relatrix, which court then awarded the custody, care, education and control of their child, Maxine Clapp, to said William Clapp, Jr. Subsequently the relatrix married Eugene Booth. Thereafter Mary R. Carlin, who is a sister of William Clapp, Jr., and her husband, J. C. Carlin, made joint application to the probate court of Portage county for the adoption of said Maxine Clapp. Written consent to said adoption was duly filed by said William Clapp, Jr., and upon application to the court of common pleas of Portage county, which court had theretofore granted said decree of divorce and awarded the custody of said child, that court made and entered an order stating that the consent of said court "be and is hereby given for such adoption." The relatrix was not made a party to the proceeding for adoption, nor to the proceeding wherein the consent thereto of the common pleas court was obtained, nor was she notified thereof.

The relatrix asserts that the probate court is "without jurisdiction to proceed with said adoption proceeding without giving her a chance to be heard, that the failure to make her a party or to make a party the next best friend is entirely unlawful, and that, if it should be found she may ultimately have error proceedings testing the right of said probate court to so proceed, said error proceedings will be entirely inadequate, because in the meantime, if said adoption goes forward, said child will be removed beyond the jurisdiction of the courts of Ohio, and the court will not only be acting without jurisdiction, but that a remedy to correct such error will for the reason aforesaid be wholly inadequate. The relatrix prayed for a writ of prohibition restraining said probate court from going further with said adoption proceedings and from granting any further orders or rendering judgment therein.

The action numbered 21315 in this court is a proceeding in error from the Court of Appeals of Portage county. Lavaughn Booth, who is the same person as Lavonne Booth, attempted to prosecute error in the Court of Appeals from the action of the court of common pleas of Portage county, wherein that court consented to the proposed adoption of Maxine Clapp by J. C. Carlin and Mary R. Carlin. The Court of Appeals found no error in the order and judgment of the court of common pleas. Thereafter, upon motion, the case was ordered certified to this court.

Mr. Jonathan Taylor, for relatrix and plaintiff in error.

Mr. C. H. Curtis, for defendants in error.

MATTHIAS J.

The controversy presented to the court in each of these cases arises from the proceeding pending in the probate court of Portage county involving the adoption of the child Maxine Clapp.

The action in prohibition is predicated upon the charge that the probate court is "entirely without jurisdiction to proceed with said adoption proceedings." There is and can be no valid claim that the probate court of Portage county has not jurisdiction of the subject-matter involved in this action. The jurisdiction undertaken to be exercised, the adoption of the child, is specifically conferred by Sec- tion 8024 et seq., General Code. The substance of the complaint of the relatrix is that said court is about to enter a decree consummating such adoption, without the consent of the relatrix, who is the mother of said child, and without making her a party to said proceeding, or affording her an opportunity to be heard.

The office of a writ of prohibition has been...