State ex rel. Roush v. Montgomery
2018 Ohio 2098
Ohio Ct. App.2018Background
- Relator Robert B. Roush, an inmate, petitioned this court for writs of prohibition and/or mandamus to require Judge Robert G. Montgomery (Franklin County Probate Court) to dismiss an adoption petition that seeks to dispense with Roush's consent under R.C. 3107.07(A).
- The adoption petitioner alleges Roush failed without justifiable cause to provide more than de minimis contact with the child for at least one year before the petition or placement, a statutory ground to waive consent.
- Roush claims lack of contact resulted from a Cease and Desist/Contact Order and his incarceration, and contends the probate court would be violating statute if it finds otherwise.
- Judge Montgomery moved to dismiss Roush’s original action; a magistrate recommended granting the motion and dismissing the petition for writs.
- The court reviewed Civ.R. 53 materials, found the probate court has exclusive jurisdiction over adoption matters and authority to decide under R.C. 3107.07(A), and concluded Roush has an adequate remedy by appeal and cannot use mandamus to control judicial discretion.
- The court overruled Roush’s objections, adopted the magistrate’s decision, granted the motion to dismiss, and dismissed the action.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether prohibition may bar the probate court from making an R.C. 3107.07(A) finding | Roush: Probate court will exceed authority by applying statute contrary to his circumstances; extraordinary relief warranted | Judge Montgomery: Probate court has subject-matter jurisdiction to adjudicate waiver of consent; prohibition improper | Denied — prohibition cannot lie because probate court has jurisdiction and appeal is adequate |
| Whether mandamus can compel dismissal or prevent an adverse R.C. 3107.07(A) finding | Roush: Writ should issue to prevent statutory violation and loss of parental rights without immediate relief | Judge Montgomery: Mandamus cannot be used to control judicial discretion; relator may litigate and appeal in the probate case | Denied — mandamus unavailable to control judicial discretion; complaint fails to state claim |
| Adequacy of appellate relief | Roush: Appeal is inadequate because it is too slow and would come after his parental rights are lost | Judge Montgomery: Delay/inconvenience does not make appeal inadequate; relator is a party and can appeal any adverse ruling | Held — appeal is an adequate remedy at law; delay alone is not a basis for extraordinary writs |
| Sufficiency of complaint to state a claim for extraordinary relief | Roush: Allegations show improper statutory application and deprivation of rights | Judge Montgomery: Complaint shows probate court has authority and relator seeks to control court’s future ruling; no jurisdictional defect alleged | Held — complaint fails under Civ.R. 12(B)(6); relief cannot be granted |
Key Cases Cited
- State ex rel. Jones v. Suster, 84 Ohio St.3d 70 (1998) (describing writ of prohibition’s purpose to restrain inferior courts exceeding jurisdiction)
- State ex rel. Keenan v. Calabrese, 69 Ohio St.3d 176 (1994) (elements required for prohibition)
- State ex rel. Berger v. McMonagle, 6 Ohio St.3d 28 (1983) (mandamus elements)
- In re Adoption of Pushcar, 110 Ohio St.3d 332 (2006) (probate court has original and exclusive jurisdiction over adoption proceedings)
- State ex rel. Casey Outdoor Advertising, Inc. v. Ohio Dept. of Transp., 61 Ohio St.3d 429 (1991) (delay or inconvenience does not render an appeal inadequate)
- State ex rel. Eaton Corp. v. Lancaster, 40 Ohio St.3d 404 (1988) (writ of prohibition tests only subject-matter jurisdiction)