In re Hunt
Lead Opinion
Aрpellant contends that the dependency complaint filed by the appellee was insufficient to give the Juvenile Court jurisdiction; that the ex parte emergency custody order is consequently unlawful; and that the appellant is entitled to a writ of habeas corpus to dissolve the unlawful custody.
The language of the complaint is as follows:
“The undersigned, Lillian Hunt, says that shе has knowledge of certain children, to-wit: Christopher Steven and David Michael Hunt age 7 and 5 years, respectively * * * who appear to be depеndent in that their condition or environment is such as to warrant the state, in the interests of the children, in assuming their guardianship, * * Much of this language is a direct quotation of E. C. 2151.04(C), one of the statutory definitions of a dependent child.
Prior to 1969, E. C. 2151.27 provided that a complaint was “sufficiently definite by using the word * * * dependent * * *, ” and lower cоurts upheld complaints based upon bare allegations of dependency. In re Anteau (1941),
“State in ordinary and concise language the essential facts which bring the proceeding within the jurisdiction of the court * *
It is apparent that this complaint, which recites only an allegation of dependency, is insufficient, for it fails to set out any particular facts. The Juvenile Court сould make no findings, on the basis of this complaint, that the children were dependent, that the court had jurisdiction, or that the children’s Interest and welfare would rеquire an order of temporary custody under R. C. 2151.33 or
We agree with the appellant that this complaint is defective. We do not agree, however, thаt a writ of habeas corpus is the proper remedy to challenge the complaint or the emergency custody order based upon it.
“(A) Pleadings in juvenile proceedings shall be the complaint and the answer, if' any, filed by a party. A party may move to dismiss the complaint or for other appropriate relief.
“(C) No answer shall be necessary. A party may file an answer to the complaint, which, if filed, shall contain specific and concise admissions or denials of each material allegation of the complaint.
“(D) Any defense, objection or request which is capable of determinatiоn without hearing on the allegations of the complaint may be raised before the adjudicatory hearing by motion. The following must be heard before the аdjudicatory hearing, though not necessarily on a separate date:
“ (1) Defenses or objections based on defects in the institution of the procеedings;
Under this procedural framework, appellant hаd the opportunity to file an answer, to file motions to dismiss based upon the insufficiency of the complaint and the failure to show jurisdiction, to file a motion to terminate the temporary order, or to request other relief. No reason appears why the ordinary procedures of answer and motion are not adequate in providing remedies for the claim appellant raises here.
In general, habeas corpus is not available where another adequate remedy exists. “Habeas corpus is an extraordinary remedy and as with every extraordinary remedy is not available as a means оf relief where there is an adequate remedy in the ordinary course of the law. In re Burson,
This case presents no circumstances whiсh would warrant use of the extraordinary remedy of habeas corpus in place of the usual procedures under the Juvenile Rules, or, if necessary, the procedures for appeal. Accordingly, the judgment of the Court of Appeals denying the writ is affirmed.
Judgment affirmed.
Concurrence in Part
concurring in part and dissenting in part.
R. C. 2151.27 provides that “ * * * the сomplaint must allege the particular facts upon which the allegation of * * * dependency * * * is based.”
A majority of this court concedes that the complaint filed in the cause at bar, which purported to confer jurisdiction upon the Juvenile Court of Ashtabula County, is deficient in light of R. C. 2151.27 and
• I fully agree that the extraordinary writ of habeas corpus is nоt to be used as a substitute for appeal. In re Piazza (1966),
Paragraph three of the syllabus in In re Frinzl (1949),
“Although under Section 12165, General Code, a writ of habeas corpus will not be allowed if it appears that thе person alleged to be restrained of his liberty is confined by virtue of a judgment or order of a court of record and that the court or magistrate had jurisdiction to make the order, a, writ may issue where the court was without jurisdiction to make the order and it is void ab initio.” (Emphasis added.)
In this instance, the writ of habeas corpus is being еmployed to test the immediate right to possession of the children. See May v. Anderson (1953),
Appellant is a resident of the state of Michigаn. She came, with her two children, to Ohio, to visit her mother. While in this state she became ill, and required hospitalization. Five days later, and while appellant wаs still hospitalized, her mother instituted the aforementioned dependency action. As previously stated, it is undisputed that the dependency complaint filed by appellant’s mother is totally devoid of factual support, for no facts are alleged therein. Such facts are required, however, by R. C. 2151.27 and
The writ of habeas corpus is available to contest аn order of a court void ab initio due to the absence of jurisdiction. In re Frinzl, supra. The writ is also available to determine the right of a parent to the immediate possession of her children. May v. Anderson, supra. Appellant, in this cause, seeks a determination of hеr right to the immediate possession of her children as a result of a court order, void a.b initio, depriving her of custody. The writ of habeas corpus should be allowed.
For the foregoing reasons, I concur in paragraph one of the syllabus, but dissent from the judgment rendered herein.