Opinion
No. 228357
Decided May 27, 1967.
Juvenile Court — Jurisdiction — Judgment void ab initio — Motion to vacate — Petition to declare child neglected — Exclusive jurisdiction of Juvenile Court — Not affected by continuing jurisdiction of Common Pleas Court in divorce action.
1. A judgment which is void ab initio for lack of jurisdiction may upon motion be vacated after term by the court which rendered it.
2. The jurisdiction of the Juvenile Court over a neglected child is sole and exclusive.
3. The Juvenile Court has the authority to hear and determine the case of a neglected child although she is at the time within the continuing jurisdiction of the Common Pleas Court by virtue of a divorce decree.
Mr. William L. Blake, for the father of the child.
This matter comes before the court on a petition to vacate this court's order of June 30, 1966, adjudging Gail L. . . . . ., hereinafter referred to as Gail, a neglected child, and making certain orders as to her custody and support. While the pleading is styled "Petition to Vacate Entry after Term" we do not perceive it to be based on any of the several grounds set forth in Section 2325.01, Revised Code, nor does counsel specifically mention any such grounds in his "petition." He does assert in his affidavit that the judgment of the court is "null and void and possesses no legality."
Counsel contends that the court's judgment of June 30, 1966, is void ab initio for lack of jurisdiction and we will therefore consider his "petition" as a motion to vacate the judgment for the aforesaid reason. As is held in Donovan v. Decker, 98 Ohio App. 183, a judgment void ab initio because of lack of jurisdiction may upon motion be vacated after term by the court which rendered it. (See also Lincoln Tavern v. Snader, 165 Ohio St. 61. ) Counsel's contention is that this court had no jurisdiction to entertain the neglect petition since the child was, at the time of adjudication as a neglected child, under the jurisdiction of the Cuyahoga County Common Pleas Court in Cause No. 650,190 by virtue of a decree of divorce.
With exception of matters of record, such as the Common Pleas Court divorce case, a proper respect for the principles of res adjudicata would seem to preclude consideration of the factual testimony adduced at the hearing, especially since no record was taken and we thus must depend solely upon the memory of counsel and the court as to the evidence presented about one year ago.
However, for whatever value it will be to the Court of Appeals there follows our recollection of the facts on which the court based its judgment:
This matter originated with the filing of a petition on February 7, 1966, by Veronica H. Murray of the Lakewood Police Department, alleging that Gail was a neglected child in this: "that said child is without proper care because of the faults and habits of her mother and that said mother neglects or refuses to provide proper care necessary for her health, morals and well being."
The court on this same day (February 7, 1966) entered a temporary order, pursuant to Section 2151.33, Revised Code, committing Gail to the temporary custody of the probation officer for placement with Mr. and Mrs. Alex D . . . . . . pending service of citation and hearing. This order was made on the ex parte representation of the Lakewood Police Department that Gail's welfare and safety required that she be protected from sexual advances by her stepfather.
Gail at the time of the hearing was thirteen years of age. Her parents are divorced and her mother, who was granted her custody, is now married to James I . . . . . . . Gail's case came to the attention of the Lakewood Police through the initiative of Gail's eighteen year old half-sister, Cheryl, who had learned from Gail that Gail's stepfather, James I . . . . . ., had sexually assaulted her. Gail related to the court that her stepfather had on numerous occasions since she was seven years old performed oral sodomy on her and also had attempted sexual intercourse but had been unable to penetrate. Cheryl, Gail's half-sister, informed the court that when she was about the age of Gail she had been victimized by James I . . . . . . in the same way and that she had informed her mother of this but the mother did nothing but extract a promise from Mr. I . . . . . . that he would desist. Mr. I . . . . . ., who was arrested and indicted for felonious assault on Gail, was promptly released on bail and returned to live with his wife who is Gail and Cheryl's mother as well as the mother of his three sons.
Upon being informed of the sexual assaults on Gail, her father placed her with his aged mother. When the Lakewood Police learned that Gail was being permitted to visit in the home of her mother and Mr. I . . . . . ., they sought and obtained the temporary custody order of February 7, 1966, pending hearing, so as to protect Gail from Mr. I . . . . . . .
At the hearing on the neglect petition on June 30, 1966, the father conceded that for personal reasons he could not take Gail into his own home and that the only placement he had available was with his mother. The court's investigation showed that while the father's mother was an estimable lady she was too enfeebled by age to give Gail the care she required or to provide her with the requisite protection from her stepfather. The court concluded that visits to the mother's home were dangerous to Gail since experience with Cheryl had shown that the mother was all too typical of the mothers whose husbands sexually assault their daughters. Repeated experience in this type of case has demonstrated to this court that the mother, in many instances, is much more concerned about keeping her husband and protecting him from the law than she is about the safety and protection of her daughter.
It is manifest from the above facts that Gail is a neglected child as alleged in the petition. Certainly she was without proper care through faults and habits of the mother who, although she knew full well through Cheryl's experience that her husband was a depraved sexual pervert, did nothing to protect Gail from him. It is equally patent that Gail's mother neglected to provide the proper care for her health, morals and well being. If the father had been able to take Gail into his own home or could have provided a satisfactory placement for her the court would have recognized his right to custody and would not have made Gail a ward of this court.
We now examine the question as to whether or not Gail being under the jurisdiction of the Common Pleas Court by virtue of the divorce decree barred the Juvenile Court from the exercise of jurisdiction as to Gail being a neglected child as defined by Section 2151.03, Revised Code.
The evidence disclosed that just prior to the Juvenile Court hearing on June 30, 1966, the Common Pleas Court had denied the motion of the Lakewood Police Department to certify the case to this court. Such motions are filed routinely in any case where Common Pleas Court has jurisdiction by virtue of a divorce decree of children coming to the attention of this Juvenile Court. This is not done as a jurisdictional necessity but rather as a practical convenience to eliminate any seeming conflicts of jurisdiction. The evidence further shows that the father had been granted custody of Gail just prior to our hearing on June 30, 1966.
We are fully aware of the rule that as between two courts of concurrent jurisdiction the court which first acquires jurisdiction retains it to the exclusion of the other. Hoffman v. Hoffman, 150 Ohio St. 427; Addams v. State, ex rel. Hubbell, 104 Ohio St. 475. Here, however, we do not have courts of concurrent jurisdiction. The Juvenile Court has sole and exclusive jurisdiction of a neglected child. Section 2151.23, Revised Code, insofar as applicable provides as follows:
"(A) The juvenile court has exclusive original jurisdiction under the Revised Code:
"(1) Concerning any child who is delinquent, neglected, dependent, crippled or otherwise physically handicapped." (Our emphasis.)
Directly in point on a clear cut analogy is In re Biddle, 168 Ohio St. 209, wherein the Supreme Court held that the Probate Court under Section 3107.02, Revised Code, had exclusive jurisdiction in adoption and that the Probate Court could hear and determine an adoption proceeding notwithstanding the fact that the custody of such child is at the time within the continuing jurisdiction of a divorce court.
The Supreme Court of Ohio has not as yet had the occasion to specifically rule on the jurisdictional question here involved. However, there are three reported decisions holding that the Juvenile Court has the jurisdiction to hear and determine such a case as the one at bar even though the child is under the jurisdiction of the Common Pleas Court by virtue of a divorce decree. The first of these, In re Jones (1946), 46 Ohio Law Abs. 132 (Juvenile Court), is a well reasoned opinion by the highly respected Judge H. L. Lamneck, for many years a judge of the Juvenile Court and later a judge of the Ohio Supreme Court. Said Judge Lamneck:
"Under Section 1639-16, General Code, as amended effective January 1, 1946 [now Section 2151.23, Revised Code], the juvenile court has exclusive original jurisdiction over delinquent, neglected, dependent, crippled, or otherwise physically handicapped children. This section was enacted to give the juvenile court jurisdiction over such a child even though the child is a ward of a divorce court. To hold otherwise would make a farce of positive legislation. No one would contend that a probate court could not commit a minor child of divorced parents to an insane institution if it became insane, or to an epileptic institution if it became epileptic, to a feeble minded institution if it was found to be feeble minded, simply because it was a ward of a divorce court. There is no reason why the same reasoning should not prevail when a complaint of dependency, neglect, or delinquency is filed and proven in which a child of divorced parents is involved, especially when the statute gives exclusive original jurisdiction to the juvenile court in such cases."
While in the Jones case a proper petition under the Juvenile Court Act had not been filed, thereby making the ruling obiter dictum, the question with which we are concerned was unquestionably urged and given much consideration.
The second of these cases, McFadden v. Kendall (1946), 81 Ohio App. 107, is identical to our case. Here a dependency petition had been filed and determined in the Juvenile Court when the child was a ward of the Common Pleas Court by virtue of a divorce decree. Said Judge Middleton:
"The jurisdiction over minors, acquired by the Common Pleas Court in a divorce action, is a continuing jurisdiction and, as between the parties to a divorce action, no other court has authority to make any order affecting the custody of such minors. But where a child is properly charged with being a delinquent, neglected, or dependent child, and is proven to be such, the state has a paramount right, in the interests of the child, to say who shall have the care, custody and control of the child, and the Juvenile Court, by the enactment of Section 1639-16, General Code (now Section 2151.23, Revised Code), has been made the special and exclusive tribunal for determining such issue."
The third case also squarely in point with the instant case is James v. Child Welfare Board, 9 Ohio App.2d 299, decided February 17, 1967, and reported in the Ohio Bar on March 13, 1967. Here by a unanimous decision in an opinion written by Judge Hunsicker, the court held:
"Where a complaint is properly filed under Section 2151.27, Revised Code, and a subsequent hearing is had pursuant to Section 2151.28, Revised Code ( sic) [should it be Section 2151.35, Revised Code], a Juvenile Court may deal with that child as is provided in that latter section, even to the point of providing an order for permanent custody, notwithstanding the fact that the child is a ward of another court in this state, as a result of a custody order arising out of a divorce action."
We hold therefore that in accordance with the above cited cases and under the statutory authority derived from Sections 2151.03, 2151.27 and 2151.35, Revised Code, the Juvenile Court has the authority to hear and determine the case of a "neglected child" notwithstanding the fact that the child is at the time within the continuing jurisdiction of the Common Pleas Court by virtue of a divorce decree.
The motion to vacate this court's judgment of June 30, 1966, and subsequent orders is therefore denied.
Judgment affirmed by the Eighth District Court of Appeals October 19, 1967; C. A. No. 28622.