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 аny particular facts. The Juvenile Court could make no findings, on the basis of this complaint, that the children were dependent, that the court had jurisdiction, or thаt the children’s Interest and welfare would require an order of temporary custody under R. C. 2151.33 or Juv. R. 13.
We agree with the appellant that this complaint is defeсtive. We do not agree, however, that a writ of habeas corpus is the proper remedy to challenge the complaint or the emergency custody order based upon it.
Juv. R. 22 provides:
“(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 requеst which is capable of determination without hearing on the allegations of the complaint may be raised before the adjudicatory hearing by motiоn. The following must be heard before the adjudicatory hearing, though not necessarily on a separate date:
“ (1) Defenses or objections based оn defects in the institution of the proceedings;
Under this proсedural framework, appellant had 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 rеmedy is not available as a means of relief where there is an adequate remedy in the ordinary course of the law. In re Burson,
This cаse presents no circumstances which 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 complaint must allege the particular facts upon which the allegation of * * * dependency * * * is based.”
Juv. R. 10(B)(1) requirеs the pleader to “ [s]tate in ordinary and concise language the essential facts which bring the proceeding within the jurisdiction of the court * * # j y
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 Juv. R. 10(B) (i). However, a majority of this court dеnies the relief requested because appellant allegedly selected an inappropriate procedural remedy.
• I fully agree thаt the extraordinary writ of habeas corpus is not 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 cоrpus will not be allowed if it appears that the 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 initiо.” (Emphasis added.)
In this instance, the writ of habeas corpus is being employed to test the immediate right to possession of the children. See May v. Anderson (1953),
Aрpellant is a resident of the state of Michigan. She came, with her two children, to Ohio, to visit her mother. While in this state she became ill, and required hospitalizаtion. Five days later, and while appellant was 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 faсts are required, however, by R. C. 2151.27 and Juv. R. 10(B)(1). Nevertheless, pursuant to the majority opinion, appellant continues to be deprived of her children.
The writ of habеas corpus is available to contest an 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. Appеllant, in this cause, seeks a determination of her 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.