State ex rel. Roush v. Montgomery (Slip Opinion), 2019 Ohio 932

Background

Robert B. Roush, an incarcerated biological father, sought writs of prohibition and mandamus to dismiss an adoption proceeding in Franklin County Probate Court in which the probate judge (Judge Montgomery) granted the adoption.
Roush alleged the probate court lacked jurisdiction because R.C. 3107.06 requires a biological father’s consent to an adoption and he withheld consent; he also argued R.C. 3107.07(A) (the consent exception) could not apply because his incarceration and a no-contact order prevented him from maintaining contact.
The Tenth District Court of Appeals dismissed Roush’s complaint, holding the probate court had jurisdiction to determine whether Roush’s consent was required under R.C. 3107.07(A) and that he had an adequate remedy by appeal; it also dismissed the mandamus claim as an impermissible attempt to control judicial discretion.
Roush appealed to the Ohio Supreme Court, which reviews dismissals for failure to state a claim de novo and presumes the truth of the complaint’s factual allegations.
The Supreme Court affirmed the court of appeals: the consent requirement and the R.C. 3107.07(A) exception are substantive criteria for the probate court to decide (not jurisdictional limits), appeal is an adequate remedy, and mandamus cannot be used to control a judge’s discretionary decisions in an active case.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether probate court lacked jurisdiction to hear adoption because father withheld consent	Roush: Adoption cannot be granted without father’s consent, so probate court was unauthorized	Judge/State: Consent requirement is substantive, not jurisdictional; court may decide whether consent excused	Held: Probate court had jurisdiction to decide consent issue; prohibition denied
Whether R.C. 3107.07(A) exception (failure to contact) could be applied given incarceration and no-contact order	Roush: Incarceration and cease-and-desist order made the exception inapplicable; thus court lacked authority to override consent	Judge/State: Whether exception applies is a factual/substantive issue for probate court to determine	Held: R.C. 3107.07(A) is a substantive criterion to be decided by the probate court; not jurisdictional
Whether prohibition is appropriate or appeal is an adequate remedy	Roush: Appeal may not be adequate because it may not provide actual relief; writ should issue to prevent injury	Judge/State: Appeal is complete, beneficial, and speedy; postjudgment appeal is adequate absent special circumstances	Held: Appeal is an adequate remedy; prohibition denied
Whether mandamus can compel dismissal of the probate adoption proceeding	Roush: Mandamus should compel dismissal for lack of jurisdiction	Judge/State: Mandamus cannot control a judge’s discretion or substitute for appeal	Held: Mandamus not available to control judicial discretion or force dismissal; mandamus denied

Key Cases Cited

State ex rel. Brady v. Pianka, 106 Ohio St.3d 147 (prohibition may prevent future unauthorized jurisdiction and correct prior unauthorized acts)
State ex rel. Consumers’ Counsel v. Pub. Util. Comm., 102 Ohio St.3d 301 (prohibition principles)
State ex rel. McKinney v. Schmenk, 152 Ohio St.3d 70 (standard for reviewing dismissals for failure to state a claim)
State ex rel. Tubbs Jones v. Suster, 84 Ohio St.3d 70 (purpose of prohibition)
State ex rel. Elder v. Camplese, 144 Ohio St.3d 89 (elements plaintiff must prove for prohibition)
State ex rel. Waters v. Spaeth, 131 Ohio St.3d 55 (elements for mandamus)
In re Adoption of M.G.B.-E., 154 Ohio St.3d 17 (probate courts have exclusive jurisdiction over adoptions)
State ex rel. Fontanella v. Kontos, 117 Ohio St.3d 514 (mandamus will not control judicial discretion)
State ex rel. Kerns v. Simmers, 153 Ohio St.3d 103 (postjudgment appeal can provide the requested relief)
State ex rel. Toledo Metro Fed. Credit Union v. Ohio Civ. Rights Comm., 78 Ohio St.3d 529 (postjudgment appeal normally is an adequate remedy)