HOLLOWAY, APPELLANT, v. CLERMONT COUNTY DEPARTMENT OF HUMAN SERVICES ET AL., APPELLEES.
No. 97-191
Supreme Court of Ohio
October 22, 1997
80 Ohio St.3d 128 | 1997-Ohio-131
Submitted August 26, 1997. APPEAL from the Court of Appeals for Clermont County, No. CA96-06-052.
{¶ 1} Appellant, Sammye Holloway (“Holloway“), is the biological mother of the minor children, T.J. and John. According to her husband, Albert, in 1988, when they lived in Tulsa, Oklahoma, he left to look for work early one morning and when he returned late that night, Holloway had abandoned him and the children. Albert subsequently traveled across the country with the children and eventually settled in Clermont County, Ohio.
{¶ 2} In November 1990, appellee, Clermont County Department of Human Services (“CCDHS“), filed a complaint in the Clermont County Court of Common Pleas, Juvenile Division, alleging that the children were dependent and requesting temporary custody. The juvenile court determined that the children were living in an unhealthy and unsanitary environment and placed them in the temporary custody of CCDHS. In January 1991, the juvenile court ordered that the original complaint filed by CCDHS be amended to include a request for permanent custody of the children. After CCDHS‘s attempt to serve Holloway with a copy of the amended complaint by certified mail failed, it attempted service on her by publication. In February 1992, the juvenile court adjudicated the children dependent and continued the agency‘s temporary custody of the children.
{¶ 4} In February 1995, Holloway filed a motion in the juvenile court to review the permanent custody case and reverse its previous judgment granting permanent custody of her children to the agency. Holloway claimed that she had not abandoned the children and that she had been searching for them ever since her husband had stolen them from her in Tulsa. The juvenile court overruled Holloway‘s motion. In May 1996, however, the Court of Appeals for Clermont County reversed the juvenile court‘s ruling because service by publication on Holloway was defective in that it did not contain her last known address. The court of appeals ordered that “[u]pon remand, the trial court is directed to set aside its previous order granting permanent custody of the children to CCDHS and to obtain proper service of process upon appellant [i.e., Holloway] before conducting a hearing on the merits.”
{¶ 5} Eleven days following the court of appeals’ judgment, Holloway filed a motion in juvenile court requesting immediate reunification with her minor children. In June 1996, at a pretrial conference on the motion, the juvenile court did not grant Holloway‘s request for immediate reunification, and CCDHS stated its intention to serve Holloway with a new complaint seeking permanent custody
“This is a difficult case to which there can never be a resolution satisfactory to all involved. Nevertheless, the focus should remain on the best interest of the children. The children‘s best interest would not be favorably served by granting the subject petition for habeas corpus and directing that the children be immediately returned to the petitioner. Whether the children are being held illegally is unclear. Petitioner has an adequate remedy at law pursuant to the remand * * *.”
{¶ 6} The cause is now before this court upon an appeal as of right.
Anita M. Bechmann, for appellant.
Donald W. White, Clermont County Prosecuting Attorney, and David H. Hoffmann, Assistant Prosecuting Attorney, for appellee Clermont County Department of Human Services.
Per Curiam.
{¶ 7} Holloway asserts in her propositions of law that the court of appeals erred in denying her writ of habeas corpus. A writ of habeas corpus will lie in certain extraordinary circumstances where there is an unlawful restraint of a person‘s liberty and there is no adequate remedy in the ordinary course of law. Howard v. Catholic Social Serv. of Cuyahoga Cty., Inc. (1994), 70 Ohio St.3d 141, 144, 637 N.E.2d 890, 893. Habeas corpus relief is the exception rather than the general rule in child custody actions. Barnebey v. Zschach (1995), 71 Ohio St.3d 588, 588-589, 646 N.E.2d 162, 163. In order to prevail on a petition for a writ of habeas corpus in a child custody case, the petitioner must establish that (1) the child is being unlawfully detained, and (2) the petitioner has the superior legal right to
{¶ 8} Holloway claims that the juvenile court lacked jurisdiction to continue the November 1990 order granting CCDHS temporary custody of the children because more than one year had passed since that order. See
{¶ 9} Nevertheless, as Holloway concedes, she is not entitled to immediate custody of the children because of the sunset provision contained in
{¶ 10} Holloway instead asserts that she is entitled to immediate custody because “respondents have not attempted to obtain service and file a new complaint against petitioner, and the conditions that supported the issuance of the original order are no longer in existence.” Id., 76 Ohio St.3d at 638, 669 N.E.2d at 1144 (“[W]hen the sunset date has passed without a filing pursuant to
{¶ 11} Holloway‘s assertion is meritless. First, there was evidence in the record which indicated that an immediate return of custody of the children to Holloway would not be in the children‘s best interest. See Pegan, 76 Ohio St.3d at 102, 666 N.E.2d at 1096, quoting 1 Antieau, The Practice of Extraordinary Remedies (1987) 113, Section 1.50 (” ‘Whenever child custody is litigated in a habeas corpus action, the best interest of the child is the prime consideration.’ “). At the permanent custody hearing before the juvenile court, Holloway‘s husband testified that she had abandoned him and the children. An April 19, 1994 administrative review summary indicated that the children had adjusted well with the foster care family, which subsequently sought to adopt them.
{¶ 12} In addition, as the court of appeals correctly determined, Holloway was not entitled to the requested extraordinary relief in habeas corpus because she possessed an adequate legal remedy in the ordinary course of law through being served with a copy of the amended complaint for permanent custody in the proceedings in the juvenile court on remand from the court of appeals’ earlier reversal of the permanent custody order. At the June 1996 pretrial conference on Holloway‘s motion to begin reunification, CCDHS noted that it intended to serve her with a complaint seeking permanent custody. As CCDHS stated in its brief in the court of appeals, the only reason why it has not yet served Holloway with a copy of the complaint is that before the initial court of appeals judgment reversing the order of permanent custody became final, Holloway filed the reunification motion, and on the date that the juvenile court overruled the motion, she filed her habeas corpus petition and the juvenile court proceedings were stayed. There is nothing to indicate that CCDHS will not promptly serve such complaint following the completion of this action or that Holloway‘s participation in the juvenile court
{¶ 13} Finally, Holloway was not entitled to habeas corpus relief because the petition she filed in the court of appeals did not comply with the pleading requirements of
{¶ 14} Based on the foregoing, the court of appeals properly denied the writ. Accordingly, the judgment of the court of appeals is affirmed.
Judgment affirmed.
MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and LUNDBERG STRATTON, JJ., concur.