In Matter of Veselich

154 N.E. 55, 22 Ohio App. 528, 5 Ohio Law. Abs. 277, 1926 Ohio App. LEXIS 397

• Court: Ohio Court of Appeals
• Decided: October 4, 1926
• Docket: 6766
• Status: Published

Opinion

SULLIVAN, J.

This cause comes into court on error from the Cleveland Juvenile Court, and it is sought to reverse the judgment of that court in refusing to grant a petition to vacate a judgment entered therein in June, 1921, holding that Harold Veselieh was then and there a dependent child.

There are two grounds upon which the petition to vacate the judgment is based, to wit, fraud and lack of service upon the parent or parents of the minor.

The facts are that the mother of the child lived in adultery with the reputed father an., later returned to her husband. The reput father thereafter applied to an orphans home, saying he was the reputed father and that the mother had absconded.

Thereafter the court gave custody of the child to worthy people and it is conceded that its custody is conducive to the child’s welfare. The Court of Appeals helci¿

1. The complaint was filed in the original hearing under 1647-1648 GC. The former section provides that any person having knowledge of a minor under eighteen who appears to he a neglected child, may file a sworn complaint with the juvenile court.

2. The latter section provides that a citation shall issue requiring the minor to appear, or any one having custody, or the judge may issue a warrant for the arrest of such person as is charged with neglect of the child, etc. Further provision is made where the citation cannot be served for it to be published once in a newspaper.

3. As one of the grounds for vacation is fraud and as the motion was not filed until five years thereafter same is barred by Sec. 11631 GC. which provides such action shall be brought within two years.

4. As to the service, both parents had abandoned the child and the fact that the record does not disclose that an affidavit was filed is not material because of the principle as to jurisdiction of juvenile courts.

5. “The fundamental principle of the Juvenile Acts is the conservation of the child. In the exercise of the power of parens patriae, the legislature has established the Juvenile Court and delegated to it certain of "its powers. There is no authority to support the contention that notice to the parent is a condition prerequisite to jurisdiction of the Juvenile Court over the child.” Bleier v. Crouse Supt. 13 App. at pg. 74.

6. “Service of citation upon the parent of the child in a proceeding under Sec. 1647-48 GC. is not a condition precedent to jurisdiction over the child.” See supra.

7. The salutory principle of the Juvenile Court is to protect the minor and under the facts in this case there are no errors in law prejudicial to the petitioner.

Judgment affirmed.

(Levine, PJ., and Vickery, J., concur.)