
    In the Matter of Veselich, a Minor.
    
      Judgments — Vacating for fraud — Section 11636 et seq., General Code — Petition to be filed within two years — Evidence must be clear and convincing — Valid defense first to be shown by petitioner — Juvenile court — Parents of dependent child nonresidents of state — Publication of citation sufficient, without affidavit therefor, when — Sections 1617 and 1618, General Code — Conservation of child’s interests paramount duty of juvenile court.
    
    1. Allegations of fraud in petition to vacate judgment are groundless under Section 11640, General Code, where petition was filed five years after rendition of judgment.
    2. Where complaint was filed in juvenile court alleging dependency of child, and where mother and reputed father were beyond state, and custody was in orphan asylum, publication of citation under Sections 1647 and 1648, General Code, held sufficient, even though affidavit that citation could not be served on them was not filed.
    3. Where inaccessibility of husband is clearly inferable, presumption of parenthood is overcome.
    4. In petition to vacate judgment for fraud, evidence must be clear and convincing.
    5. In petition to vacate judgment under Sections 11636 and 11637, General Code, petitioner must show valid defense.
    6. In complaint under Sections 1647 and 1648, General Code, alleging dependency of a child, paramount duty of juvenile court is conservation of child’s interests, and other considerations are subordinated thereto.
    (Decided October 4, 1926.)
    Error: Court of Appeals for Cuyahoga county.
    
      Messrs. Bulkley, Hauxhurst, Jamison & Sharp, for Cleveland Protestant Orphan Asylum.
    
      Mr. Alfred Safran, for Alice Veselich.
   Sullivan, J.

This cause comes into this court on error from the juvenile court of the city of Cleveland, 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 at that time that Harold Veselich, a child about one and a half years of age, was then and there a dependent child, and giving custody thereof, upon his abandonment by his reputed father and mother, to the Cleveland Protestant Orphan Asylum.

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

On the hearing to vacate it is disclosed by the record that in 1918 the mother, Alice Multhaupt Veselich, was living in Detroit, and was the wife of one Louis Multhaupt; that, while residing in that city, the mother and one John Veselich became acquainted at a public dance hall; that then and thereupon followed the desertion of the wife from the husband and a cohabitation and state of adultery in Detroit with Veselich, and out of such relationship the infant, whose control and custody are in dispute, was born. Veselich left Detroit, and was later followed by the mother, and the couple continued to live in Cleveland for a period of about a year after their arrival in that city. While the couple lived in Cleveland, they were objects of charity, and received aid from the Associated Charities of Cleveland. Thereupon the mother placed the child with some neighbors, and left Veselich, and returned to her husband in Michigan. The reputed father, Veselich, when this situation arose, applied to the Cleveland Protestant Orphan Asylum, stating he was the father of the child, but was not married to the mother; that the mother had absconded with money belonging to him; and that he was unable to take care of the child, and hence applied to the Orphan Asylum.

A complaint was thereupon filed in the juvenile court alleging the dependency of the child, and, after a hearing, the court gave the custody of the child to worthy people, who since that time, until the present, a period of more than five years, have been caring for the child. It is conceded that the circumstances surrounding the child and the people who have him in custody are conducive to the welfare and in the best interests of the minor.

The complaint was filed in the original hearing under Sections 1647 and 1648, General Code. The former section provides that any person having knowledge of a minor under the age of eighteen years who appears to be either a delinquent, neglected, or dependent child, may file with such juvenile court a complaint, sworn to, which may be upon information and belief, and for that purpose such complaint shall be sufficiently definite by using the word “delinquent,” or “dependent,” as the facts may be.

Section 1648 provides that upon the filing of the complaint a citation shall issue requiring such minor to appear, and the parents or guardian, or other person, if any, having custody or control of the child, or with whom it may be, to appear with the minor at a time and place to be stated in the citation; or the judge may in the first instance issue a warrant for the arrest of such minor or for any person named in the complaint and charged therein with having abused or abandoned, or charged therein with neglect of, or being responsible for having encouraged, aided, or abetted the delinquency or dependency of such child.

The section then provides that whenever it shall appear from affidavit that a parent or guardian or other person having the custody of such child resides or has gone out of the state, or that his or her place of residence is unknown, so that such citation cannot be served on him or her, the clerk shall cause citation to be published once in a newspaper of general circulation throughout the county, published in the county, if there be one so published.

As before stated, one of the grounds relied upon for the vacation of the original judgment is fraud, and it appears by the record that the petition to vacate was filed some five years after the rendition of the judgment, and yet Section 11640, General Code, amongst its provisions with respect to fraud as a ground for the vacation of a judgment, uses the following language:

“Proceedings to vacate or modify a judgment or order for the causes mentioned, in divisions four, five and seven, of section eleven thousand six hundred and thirty-one, must be commenced within two years after the judgment was rendered, or order made. ’ ’

It is the unanimous opinion of the court that this provision applies to the record, so that the allegations of fraud in the petition to vacate are groundless in law, and therefore the court below as to that ground committed no error in refusing to vacate the judgment.

There remains the other ground named in the petition to vacate, to-wit, the declaration that under Section 1648, supra, the actual parents in Detroit received no actual notice by publication, although it appears by the record that service by publication was made on the ground that their residence was unknown. Considering this situation in the case, it must be noted that the statute says that “whenever it shall appear from affidavit that a parent or guardian or other person having the custody of such child resides or has gone out of the state or that his or her place of residence is unknown so that such citation cannot be served on him or her, the clerk shall cause such citation to be published once in a newspaper of general circulation throughout the county, and published in the county, if there be one so published.” The record discloses that not only the mother but the reputed father had abandoned the child, so that its custody at the time of service by publication essentially was in the Cleveland Protestant Orphan Asylum. If this view is not correct, and the statute is obligatory that the parents shall be served, then service by publication was actually made in accordance with the provisions of Section 1648, and we do not think that the mere fact that the record does not disclose that there was an affidavit filed is material because of the principle applicable to the jurisdiction of juvenile courts, as laid down in Bleier v. Crouse, Supt., decided in 1920 by the Hamilton county court of appeals, and reported in 13 Ohio App., 69. We quote from 13 Ohio App., at page 74, as follows:

“The fundamental principle of the juvenile acts is 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.”

The syllabus reads: “Service of citation upon the parent of a child in a proceeding under Sections 1647 and 1648, General Code, is not a condition precedent to jurisdiction over the child.”

Therefore it is our opinion that the court committed no error in .refusing to vacate its former judgment because of alleged deficiency in legal notice upon the parents. The mother had abandoned the child, and the facts in the case released the husband from the obligations of parenthood. From the circumstances in the case, as they appear from the record, the inaccessibility of the husband is clearly inferable, so that the presumption of parenthood, we think, from the record and its inference, is overcome.

It is well-settled authority that in a petition to vacate the evidence must be clear and convincing when the ground therefor is fraud, and whatever the ground is the petitioner must show a valid defense, and the record in the case as to this duty is. silent, notwithstanding Sections 11636 and 11637, General Code, which provide generally that “the court must' try and decide upon the grounds to vacate or modify a judgment or order before trying or deciding upon the validity of the defense or cause of action” and that a “judgment shall not be vacated on motion or petition until it is adjudged that there is a valid defense to the action in which the judgment was rendered.”

The paramount duty of the juvenile court was the conservation of the child’s interests, and every other consideration is subordinated to this salutary principle. Under the record the judgment of the court below is based upon this proposition, and it is our holding that there are no errors of law prejudicial to the rights of the petitioner. Therefore, and for the reasons herein expressed, the judgment of the lower court is hereby affirmed.

Judgment affirmed.

Levine, P. J., and Vickery, J., concur.  