Opposition to Ohio Safe Haven Law Amendment (S.B. 304)

Erik L. Smith

 

 

RE: S.B. 304 (127th Gen. Assembly) — Opposed

 

My name is Erik L. Smith. I am an independent paralegal in Columbus, Ohio, and work regularly in juvenile cases and contested adoptions. I received my paralegal certificate from Capital University in 2001. My publications include: "Putative Father Registry Deadlines and the Servicemembers Civil Relief Act,"160 Air Force Law Review 175 (2007). "Basics of the Ohio Putative Father Registry,"219 Ohio Lawyer 6 (March/April 2005). and "The Government Hiding Children from Fathers: Ohio's Safe Haven Law and the Separation of Powers Doctrine."3http://www.eriksmith.org (2005).

 

Increasing the maximum age of a child who may be legally deserted to 30 days is ill advised because it will cause void judgments, subject to future attack.

 

S.B. 304 comes right after In re Baby Boy Doe,4145 Ohio Misc.2d 1, 2007-Ohio-7244. (Cuyahoga County, Nov. 2007) (Attached) which found Ohio's Deserted Child Act (DCA) unconstitutional for violating the separation of powers doctrine. The DCA wrongly interfered with the Ohio Supreme Court's rule-making authority under Art IV5Section 5(B). of the Ohio Constitution by undermining juvenile rule 15, governing notice and service of summons. The court applied In re Doe (a.k.a. S.H.),6(1990), 57 Ohio Misc.2d 20, 565 N.E.2d 891. in finding that the DCA statutes were procedural, thus governed by the juvenile rules. S.H. involved a constitutional challenge to a statute prohibiting notice to a minor's parents when a minor sought an abortion. Because the statute conflicted with Juv.R. 15, the prohibition lacked force and effect. The Supreme Court later amended the juvenile rules to except the abortion notice statute from them.7See, Juv.R. 1(C)(6). 

 

But the Supreme Court likely will not amend the juvenile rules to exempt deserted children. The Supreme Court excepted the abortion statute from the juvenile rules due to the competing fundamental rights involved (mother's privacy v. parents' right) and to allow for a judicial bypass as required when minors seek abortions.8See Ohio v. Akron Center (1990), 497 U.S. 502; Bellotti v. Baird (1979), 443 U.S. 622. But the DCA does not enforce a fundamental right. Unlike aborting a non-viable fetus, the right to surrender one's born child to the state does not come from the Constitution.9See, Doe v. Sundquist, 106 F.3d 702, 706 (6th Cir. 1997); Does 1-7 v. State, 993 P.2d 822, 836 (Or. Ct. App. 1999).

 

In Baby Boy Doe (2007), the parents did not appear and were unidentified. After the deserted child complaint was vacated, the state brought an unchallenged dependency complaint.10Personal conversation with Baby Boy Doe's first Attorney, Steven Wolkin. But the termination of parental rights will still be void because the same lack of notice, due diligence, and conflict with the juvenile rules exists. Thus, all permanent custody orders in anonymous deserted child cases will be subject to vacation as void judgments. See, Van DeRyt v. Van DeRyt11(1966), 6 Ohio St.2d 31, 36. (A court has an inherent power to vacate a void judgment because void judgments are nullities from the outset.) In re Walters,122006-Ohio-631 (5th Dist.), ¶32, affirmed on other grounds in In re Walters, 112 Ohio St.3d 315, 2007-Ohio-7. (A void judgment may be vacated at any time.) In re Frinzl13(1949), 152 Ohio St. 164, 177. (The juvenile court's jurisdiction does not attach until notice has been given to the parties, without which, the court's judgment is void.) Williams v. Williams14(1975), 44 Ohio St.2d 28, 31. (A lack of service of summons and opportunity to be heard renders a custody order invalid.)