Opinion
No. 74-804
Decided June 25, 1975.
Minors — Disposition of neglected or dependent child — R.C. 2151.353 — Complaint requesting custody — Service of summons on parent — Adjudication child neglected or dependent — Necessary prerequisites.
Under R.C. 2151.353, the filing of a complaint containing a prayer requesting permanent custody of minor children, sufficiently apprising the parents of the grounds upon which the order is to be based, and the service of summons upon the parents, explaining that the granting of such an order permanently divests them of their parental rights, are prerequisite to a valid adjudication that a child is neglected or dependent for the purpose of obtaining an order for permanent custody divesting parental rights.
APPEAL from the Court of Appeals for Cuyahoga County.
On December 13, 1971, a caseworker for the Cuyahoga County Welfare Department filed a complaint alleging that Celeste and Christine Fassinger were "dependent children." The complaint alleged that "said children are without proper case or support through no fault of the parents," and that "said children have presented problems in development that require special attention, which the parents, because of their personal problems, have been unable to provide * * *." At a hearing on January 3, 1972, the Fassinger children were found to be dependent by the Juvenile Court, and the Cuyahoga County Welfare Department was granted their temporary care and custody.
The options open to the agency in making arrangements for care of the children were limited by the nature of the commitment. During the course of its custody, the agency found it necessary to return the children to their parents. Predictably, the parents again failed in their responsibility. On August 20, 1973, the agency moved for an order granting it permanent custody for the purpose of adoption.
The motion for permanent custody was couched in the following terms:
"Now comes * * * [the] Cuyahoga County Welfare Department, and moves the court for an order terminating the temporary care and custody of the Social Services, Cuyahoga County Welfare Department of Celeste and Christine Fassinger, and committing said minor [ sic] to the permanent care and custody of the Social Services, Cuyahoga Welfare Department for the reason that it would appear to be in the best interests of said minors that they be placed for adoption." (Emphasis added.)
At the hearing on this motion on September 14, 1973, counsel for the Fassinger parents objected to the institution of the proceeding, and moved to dismiss the motion for permanent custody on the ground that its allegations were insufficient to justify the order sought.
The trial court overruled the motion to dismiss, and on November 14, 1973, granted the motion for permanent custody.
Upon appeal, the Court of Appeals reversed, holding that the authority of the Juvenile Court to grant permanent custody to the agency under R.C. 2151.353 required a finding at the time of the hearing that the parents were unfit, or that the children were neglected or dependent; that such finding must, under R.C. 2151.35, be by clear and convincing evidence; and that conditions of the family at the time of the November 14th hearing were markedly improved over those at the original hearing on dependency.
The cause is now before this court pursuant to the allowance of appellant's motion to certify the record.
mr. Joseph Lajack, for appellant, Cuyahoga County Welfare Department.
Mrs. Harriet B. Holtzman and Mr. Sarge R. Holtzman, for appellees, Donald and Jean Fassinger.
R.C. 2151.353 provides that:
"No order for permanent custody shall be made at the hearing wherein the child is adjudicated neglected or dependent except and unless the complaint alleging the neglect or dependency contains a prayer requesting such permanent custody and the summons served on the parents contains a full explanation that the granting of such an order permanently divests them of their parental rights."
Because the Cuyahoga County Welfare Department failed to comply with the explicit requirements of this statute, the agency's laudatory effort to provide the Fassinger children with adequate parental care must come to naught.
The agency's original complaint, filed on December 13, 1971, did not purport to seek permanent custody. Had it done so, it would have been defective, in that the summons served upon the parents failed to contain the explanation required by R.C. 2151.353, that the granting of the order sought would permanently divest them of their parental rights.
The agency's subsequent motion, filed on August 20, 1973, was also deficient. Though not denominated a complaint, it specifically requested an order changing permanent custody. The summons served upon the parents contained the explanation required by law. But the motion itself failed to allege neglect or dependence, or to assert any other ground for a change in custody with sufficient definiteness that the parents could be apprised of the charge they would be required to meet.
The mandate of R.C. 2151.353 is clear. To modify its requirements in a well-intentioned effort to assist the Fassinger children, or to construe the agency's complaint and motion together, so as to bring them into compliance with the statute, would be improper. The parents of Celeste and Christine Fassinger sought, and concurred in, the initial vesting of temporary custody in the agency. To deny them permanent custody, without proper notice, summons, and hearing, would be manifestly unfair.
We hold that under R.C. 2151.353, the filing of a complaint containing a prayer requesting permanent custody, sufficiently apprising the parents of the grounds upon which the order is to be based, and the service of summons upon the parents, explaining that the granting of such an order permanently divests them of their parental rights, are prerequisite to a valid adjudication that a child is neglected or dependent for the purpose of obtaining an order for permanent custody divesting parental rights.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
O'NEILL, C.J., HERBERT, CORRIGAN, STERN, CELEBREZZE and W. BROWN, JJ., concur.