dissenting. I do not perceive that R. C. 2151.23(A)(2) describes a “child custody proceeding.” It merely designates the court which, in appropriate cases, has original and exclusive jurisdiction to determine the custody of a child in this state. Nor do I conclude that this statute in any manner deals with the problem of when a court may take away the predominant custodial rights of the natural parents of children and award those rights to other persons or to statutorily designated.public agencies, thus permanently terminating all parental rights, including physical control over the person and personality of the child. . '
Certainly, a court making so drastic'an order terminating parental rights must have some authority, historical or statutory, for so doing.
It would be shocking'to bring about so great a parental loss on a mere finding that the best interests of the child' can be better served. .
In re Torok (1954), 161 Ohio St. 585, is not such authority, for that case-merely decided that. the. Juvenile Court had jurisdiction to order the return of a child to her nátural mother as against persons with whom she had placed the child and to whom she had paid several thousand dollars'for the child’s support. That case was similar to Paddock v. Ripley (1948), 149 Ohio St. 539.
Both of those cases were, actions, by the parent to recover a child alleged to have been wrongfully withheld, in neither action was this court concerned “with the factual questions [of] whether the child *' * * [was] neglect*101ed'-or dependent .or the * * * [parent] a fit p'erson to have custody. 13 Each case turned upon the pure legal question of whether the Juvenile Court’s jurisdiction to order the child’s return to her rightful custodian depended upon a threshold finding of dependency, delinquency, parental unfitness, etc. Torok, supra, correctly said “no.” Paddock, I believe, incorrectly said “yes.”
Throughout its history E. C. Chapter 2151, although amended many times, has persistently defined custody so as to clearly distinguish “permanent custody” from “legal custody” (E. C. 2151.011 [B] [1] through [13]), so that defined “residual parental rights, privileges and responsibilities” persist only under the latter. These parental rights, coupled with a continuing Juvenile Court jurisdiction, present a duty of further inquiry upon motion due to a change of circumstances similar to that which pertains in domestic relations cases such as Boyer v. Boyer (1976), 46 Ohio St. 2d 83. The type of custody granted in Boyer is subject to that court’s continuing jurisdiction and is not “permanent custody” as defined by E. C. 2151.011 (B) (12). Residual parental rights, privileges and responsibilities clearly persist, and the Juvenile Court has continuing jurisdiction.
Under the guidelines of B. C. 3109.04 the right of courts in domestic relations cases to grant custody to those other than parents when circumstances reflecting upon the best interest of the child are demonstrated is legislatively approved. Our holding in Boyer, supra, in my opinion, need not have turned upon the statute’s constitutional precedence over the rule, nor upon the statute itself, since rights of parents, including residual rights and obligations identical with those described in E. C. 2151.011(B) (11), were not terminated in Boyer. The court’s inherent power to grant custody to those other than parents in appropriate circumstances was recognized as early as Gish-wiler v. Dodez (1855), 4 Ohio St. 615, 617.
*102I see no reason, so long as it is clearly recognized that the Juvenile Court is here dealing with the same sort of “legal custody” as is defined in R. C. 2151.011 (B) (10), to deny to the Juvenile Court a similar power on a continuing basis to control the child’s environment for his best interest nor do I conclude that this power is derived from R. C. 3109.04 or bound by its criteria.
I consider that the Juvenile Court has this jurisdiction absent a finding of unsuitability of the parents and that its power would not be made greater or different in this type of proceeding with a finding of unsuitability.14
On the other hand, “permanent custody,” that legal status created by a court15 which divests parents of “all rights, duties and obligations” including the right to consent to adoption, can only be granted without parental consent to organizations described in R. C. 2151.011 and then only after such proceedings and notice as are discussed in In re Fassinger (1975), 42 Ohio St. 2d 505.
I would' reverse the Court of Appeals and affirm the judgment of the Juvenile Court.
In re Torok, 161 Ohio St. 585, 588.
As a makeweight proposition it would be observed that a parent’s action in habeas corpus for custody of a child has been defeated on the grounds of the child’s best interest in many instances although the petitioner’s right of custody had been declared in the divorce proceedings.
See R. C. 2151.011(B) (12), supra.