State ex rel. C v. v. Adoption Link, Inc. (Slip Opinion)State ex rel. C v. v. Adoption Link, Inc. (Slip Opinion)
NOTICE
This slip opinion is subject to formal revision before it is published in an advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.
SLIP OPINION NO. 2019-OHIO-2118
Prohibition and habeas corpus—
IN PROHIBITION and HABEAS CORPUS.
{¶ 1} Relator, C.V., is the biological mother of N.V., born August 10, 2018. In this original action, she seeks writs of prohibition and habeas corpus to (1) vacate a Greene County Juvenile Court judge‘s approval of her agreement to permanently surrender N.V. to the custody of Adoption Link, Inc., (2) halt adoption proceedings in the Greene County Probate Court, and (3) compel the return of N.V. to her care and custody. For the reasons explained below, we grant C.V.‘s request for a writ of prohibition against the Greene County Juvenile Court judge, we deny her request for a writ of prohibition against the Greene County Probate Court judge, and we deny her request for a writ of habeas corpus. In addition, we deny the motion for oral argument and deny as moot the motion for leave to file a surreply brief.
I. Background
{¶ 2} The essential facts of this case are not in dispute. On the afternoon of August 10, 2018, C.V. gave birth to a baby girl in the bathroom of her residence. C.V. has a history of substance abuse and addiction, including heroin use, and before going into labor, she did not know she was pregnant. Fire-department personnel transported C.V. and the baby to Good Samaritan Hospital in Cincinnati.
{¶ 3} At 11:00 a.m. the next morning, C.V. met with a Good Samaritan Hospital social worker, who showed her adoption-agency pamphlets. C.V. selected Adoption Link. Within an hour, Naomi Ewald, the director of Adoption Link, sent profiles of four prospective adoptive families, and C.V. selected K.B.
{¶ 4} That afternoon, C.V. met with Adoption Link‘s adoption assessor, Melissa Manzi. During that meeting, which took place in C.V.‘s hospital room, C.V. executed a temporary-custody agreement, transferring temporary custody to Adoption Link for a period of 61 days. In addition, she signed a form titled “Ohio Law and Adoption Materials,” acknowledging that she had been provided with written materials on adoption and was fully aware of the ramifications of surrendering custody of her child, and she answered questions so that Manzi could fill out the “Social and Medical History” form required by
{¶ 5} C.V. was discharged from the hospital the following day, and later that evening, she began her treatment regimen for heroin addiction. Two days later, on August 14, she had her first assessment meeting for admission to an inpatient addiction-treatment facility.
{¶ 6} Also on August 14, C.V. executed a permanent-surrender-of-child agreement, assigning permanent custody of N.V. to Adoption Link.
{¶ 7} The next day, August 15, Adoption Link filed the permanent surrender agreement,
{¶ 8} Prior to filing the present action, C.V. made two attempts to revoke the surrender agreement based on an alleged change of circumstances: she filed a “Motion to Withdraw Consent of Adoption” in the Hamilton County Probate Court and a “Motion to Withdraw Consent of the Permanent Surrender & Appeal to Petition of Adoption” in the Greene County Juvenile Court. Both motions were denied.
{¶ 9} On December 31, 2018, C.V. commenced the present suit for writs of prohibition and habeas corpus. In addition to the Greene County Juvenile Court judge and Adoption Link, she named as respondents the Greene County Probate Court judge, whom she believes is presiding over adoption proceedings involving N.V., and the prospective adoptive mother, K.B. All four respondents filed motions to dismiss, which we denied, 154 Ohio St.3d 1516, 2019-Ohio-695, 118 N.E.3d 254. On February 12, 2019, we issued an order staying all adoption proceedings. 154 Ohio St.3d 1505, 2019-Ohio-489, 116 N.E.3d 1285.
{¶ 10} On March 5, 2019, C.V. filed an unopposed motion for oral argument. And at the close of briefing on the merits, K.B. filed a motion for leave to file a surreply brief to respond to arguments raised in C.V.‘s reply brief.
II. Analysis
A. Motion for oral argument
{¶ 11} We have discretion to grant oral argument in an original action, S.Ct.Prac.R. 17.02, and in exercising that discretion, we consider whether the case involves a matter of great public importance, complex issues of law or fact, a substantial constitutional issue, or a conflict among courts of appeals, State ex rel. Sands v. Court of Common Pleas Judge, 155 Ohio St.3d 238, 2018-Ohio-4245, 120 N.E.3d 799, ¶ 6. In this case, we conclude that none of those factors is present and that the parties’ briefs are sufficient to resolve the issues raised. We therefore deny the motion.
B. C.V.‘s request for a writ of prohibition against the Greene County Juvenile Court judge
{¶ 12} Three elements are necessary for a writ of prohibition to issue: the exercise of judicial power, the lack of authority for the exercise of that power, and the lack of an adequate remedy in the ordinary course of law. State ex rel. Elder v. Camplese, 144 Ohio St.3d 89, 2015-Ohio-3628, 40 N.E.3d 1138, ¶ 13. However, if the absence of jurisdiction is patent and unambiguous, a relator need not establish the third prong, the lack of an adequate remedy at law. State ex rel. Sapp v. Franklin Cty. Court of Appeals, 118 Ohio St.3d 368, 2008-Ohio-2637, 889 N.E.2d 500, ¶ 15.
{¶ 13} C.V.‘s complaint seeks a writ of prohibition against the Greene
{¶ 14} Ohio‘s juvenile courts have limited jurisdiction: they can exercise only the authority conferred on them by the General Assembly. In re Z.R., 144 Ohio St.3d 380, 2015-Ohio-3306, 44 N.E.3d 239, ¶ 14. In certain situations, an adoption agency is required to seek and a juvenile court is authorized to provide approval of a permanent-surrender agreement.
{¶ 15} The precise language of the statute conferring jurisdiction upon a juvenile court regarding surrender agreements is as follows: “The juvenile court has exclusive original jurisdiction * * * [t]o hear and determine * * * requests for court approval of permanent custody agreements that are filed pursuant to section 5103.15 of the Revised Code.”
{¶ 16} It is plain from the record that Adoption Link did not believe that it was operating under
{¶ 17}
[a] juvenile court may approve an agreement entered into under division (B)(1) of section 5103.15 of the Revised Code between a * * * private child placing agency and the parents of a child who is less than six months of age and will be, if adopted, an adopted person * * * without the parents both appearing before the court.
Based on this language, it is correct to say that some permanent surrenders involving children six months of age and younger fall under the terms of
{¶ 18} But a child‘s young age alone does not make a surrender agreement subject to
{¶ 19} The evidence is overwhelming that C.V. and Adoption Link executed the surrender agreement for the sole purpose of adoption. Adoption Link is, after all, an adoption agency, not a general social-services organization. Naomi Ewald, the director of Adoption Link, attested that C.V. “signed the Permanent Surrender of Child for the placement and adoption of [N.V.] with Adoption Link, Inc.” (Emphasis added.) And when contacted about C.V., Ewald immediately dispatched Melisa Manzi, who describes her position with Adoption Link as “an adoption assessor,” to C.V.‘s hospital room. (Emphasis added.) And the surrender agreement itself notes that C.V. “has chosen an adoptive parent to raise this child.”
{¶ 20} In short, any attempt to recharacterize the juvenile-court judge‘s judgment entry as involving a proceeding under
{¶ 21} Moreover, by treating this as a (B)(1) surrender even though he cited
{¶ 22} The facts presented by C.V. are egregious. Some of the most troubling are that C.V. was not aware that she was pregnant until she gave birth, so she certainly had no opportunity to consider in advance what to do with the baby. But Adoption Link rushed the surrender process. Within 24 hours of N.V.‘s birth, as
{¶ 23} Other circumstances of the surrender suggest the possibility of fraud, duress, or undue influence. For example, during the assessment meeting, Manzi offered to pay C.V., a heroin addict, $1,000 for her expenses when an adoption match was made, plus an additional $2,000 upon execution of the surrender agreement. And Adoption Link provided a lawyer to counsel C.V. about signing the agreement without disclosing that the attorney, Darlene Rogers, was an undisclosed agent working for Adoption Link.
{¶ 24} Fortunately, as a consequence of our judgment today, C.V. will have an opportunity to present her arguments for revoking the surrender agreement before the probate court can determine whether to terminate her parental rights, an opportunity she was not afforded prior to the juvenile-court judge‘s decision
{¶ 25} We grant the writ of prohibition against the Greene County Juvenile Court judge and vacate his judgment entry approving the surrender agreement.
C. C.V.‘s petition for a writ of habeas corpus
{¶ 26} To obtain 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 a superior legal right to custody of the child. State ex rel. Bruggeman v. Auglaize Cty. Court of Common Pleas, 87 Ohio St.3d 257, 719 N.E.2d 543 (1999). Habeas corpus relief “is the exception rather than the general rule in child custody actions.” Evans v. Klaeger, 87 Ohio St.3d 260, 261, 719 N.E.2d 546 (1999).
{¶ 27} A writ of habeas corpus will not issue if the petitioner has an adequate remedy in the ordinary course of law. Rammage v. Saros, 97 Ohio St.3d 430, 2002-Ohio-6669, 780 N.E.2d 278, ¶ 9. C.V. has an adequate remedy in the ordinary course of law by which to contest the validity of the Adoption Link surrender agreement: she can intervene in the probate-court adoption proceedings. See Barnebey v. Zschach, 71 Ohio St.3d 588, 646 N.E.2d 162 (1995) (ability to file a motion in adoption proceedings in probate court was available adequate remedy, and thus, relief in habeas corpus was unavailable). If she does intervene, the probate court should determine whether the required consents have been obtained.
{¶ 28} Because we conclude that C.V. has an adequate remedy available to her in the ordinary course of law, we deny her request for a writ of habeas corpus. It is therefore unnecessary to consider the substantive legal arguments she presents in favor of the issuance of a writ of habeas corpus in proposition of law Nos. 1 through 8. And because K.B.‘s motion for leave to file a surreply brief seeks to supplement
D. C.V.‘s request for a writ of prohibition against the Greene County Probate Court judge
{¶ 29} C.V. seeks a writ of prohibition against the Greene County Probate Court judge to prevent him from exercising power over N.V.‘s adoption proceedings. In Ohio, probate courts are vested with “original and exclusive jurisdiction over adoption proceedings.” In re Adoption of Pushcar, 110 Ohio St.3d 332, 2006-Ohio-4572, 853 N.E.2d 647, ¶ 9. As a general rule, a probate court may grant a petition for the adoption of a minor only when written consent to the adoption has been executed by the mother of the minor, the father of the minor (in certain circumstances), and “[a]ny person or agency having permanent custody of the minor or authorized by court order to consent.”
{¶ 30} Before entering a final decree of adoption, the probate court has an affirmative duty to determine whether the required consents have been obtained.
{¶ 31} It follows from this discussion that we will not issue a writ of prohibition against the Greene County Probate Court judge. The determination whether the requisite consents have been obtained falls squarely within the statutory jurisdiction of the probate court. We therefore reject proposition of law Nos. 9 and 10, which challenge the jurisdiction of the probate court to determine the validity of the surrender agreement.
{¶ 32} We also reject proposition of law No. 11, which attempts to invoke the jurisdictional-priority rule. The jurisdictional-priority rule provides that, ” ‘[a]s between [state] courts of concurrent jurisdiction, the tribunal whose power is first invoked by the institution of proper proceedings acquires jurisdiction, to the exclusion of all other tribunals, to adjudicate upon the whole issue and settle the rights of the parties.’ ” (Brackets sic.) State ex rel. Dunlap v. Sarko, 135 Ohio St.3d 171, 2013-Ohio-67, 985 N.E.2d 450, ¶ 9, quoting State ex rel. Phillips v. Polcar, 50 Ohio St.2d 279, 364 N.E.2d 33 (1977), syllabus. The date on which the adoption petition was filed in Greene County Probate Court is not in the record, and therefore, we cannot determine whether C.V.‘s filing in the Hamilton County Probate Court was first in time.
{¶ 33} We deny the request for a writ of prohibition against the Greene County Probate Court judge.
III. Conclusion
{¶ 34} For the reasons stated above, we grant the request for a writ of prohibition against the Greene County Juvenile Court judge, deny the request for a writ of habeas corpus, and deny the request for a writ of prohibition against the Greene County Probate Court judge. We also deny K.B.‘s
Writ of prohibition against the Greene County Juvenile Court judge granted, writ of prohibition against the Greene County Probate Court judge denied, and writ of habeas corpus denied.
O‘CONNOR, C.J., and FRENCH and DONNELLY, JJ., concur.
STEWART, J., concurs in part and concurs in judgment only in part, with an opinion.
DEWINE, J., concurs in part and dissents in part, with an opinion joined by KENNEDY and FISCHER, JJ.
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STEWART, J., concurring in part and concurring in judgment only in part.
{¶ 35} I agree with the per curiam opinion that we should deny C.V.‘s requests for a writ of prohibition against the Greene County Probate Court judge and for a writ of habeas corpus. I also agree that a writ of prohibition against the Greene County Juvenile Court judge should issue. Nevertheless, I concur only in the judgment with regard to the writ against the juvenile-court judge because I would issue the writ for reasons different than those expressed in the per curiam opinion.
{¶ 36} C.V. seeks a writ of prohibition against the juvenile-court judge to both prohibit future action by the juvenile court and to relieve her from its holding that she knowingly and voluntarily entered into the surrender agreement with Adoption Link, Inc. C.V.‘s remedy in the form of intervention in the adoption proceedings is adequate only if the probate court is allowed to review the voluntariness of the surrender agreement in the first instance, without giving any consideration or preclusive effect to the juvenile court‘s determination. Although the opinion concurring in part and dissenting in part notes that the juvenile court‘s determination should not be given preclusive effect, the opinion fails to explain how this court has the authority to limit the juvenile court‘s determination in this way without issuing a writ of prohibition or reviewing the matter through a discretionary appeal and reversing it.
{¶ 37} To be entitled to a writ of prohibition, C.V. must establish: (1) the exercise of judicial power, (2) the lack of authority for the exercise of that power, and (3) the lack of an adequate remedy in the ordinary course of law. See State ex rel. Elder v. Camplese, 144 Ohio St.3d 89, 2015-Ohio-3628, 40 N.E.3d 1138, ¶ 13. The general understanding in Ohio is that a writ of prohibition may issue to prohibit future judicial action but not to remediate prior unauthorized actions by a court. State ex rel. Stefanick v. Marietta Mun. Court, 21 Ohio St.2d 102, 104, 255 N.E.2d 634 (1970) (holding that prohibition cannot be used “to review the regularity of an act already performed“). Nevertheless, this court has recognized an exception to the general principle that prohibition is prospective rather than remedial, stating that when an ” ‘inferior court patently and unambiguously lacks jurisdiction over the cause, a writ of prohibition will be issued to prevent the unauthorized exercise of jurisdiction and to correct the results of previously jurisdictionally unauthorized actions.’ ” (Emphasis added.) State ex rel. Gains v. Maloney, 102 Ohio St.3d 254, 2004-Ohio-2658, 809 N.E.2d 24, ¶ 10, quoting State ex rel. Wilkinson v. Reed, 99 Ohio St.3d 106, 2003-Ohio-2506, 789 N.E.2d 203, ¶ 14.
{¶ 38} The per curiam opinion correctly notes that Adoption Link submitted the surrender agreement signed by C.V. to the juvenile-court judge for journalization in accord with
{¶ 39} The juvenile-court judge issued a judgment entry stating that he had been “properly notified by Adoption Link, Inc., that the Permanent Surrender of Child Form 1666 was executed by” C.V. and that he had been “duly notified of the executed agreement and the placement of the child for adoption as required by Ohio Revised Code Section 5103.15(B)(2).” This suffices to show that C.V. signed an
{¶ 40} As the juvenile court stated in its judgment entry, C.V. executed Ohio Department of Job and Family Services Form 1666 (“Form 1666“), which is titled “Permanent Surrender of Child.” That form allows for the private child placing agency (“PCPA“) to assume, and retain, permanent custody of a child. See Ohio Adm.Code 5101:2-42-04(B)(3). “When a PCPA executes a [Form 1666] involving a child under six months of age where the agreement is executed solely for obtaining the adoption of the child and the parents(s) [sic] consent to the permanent surrender, approval by the juvenile court is not required.” Ohio Adm.Code 5101:2-42-09(F). The Form 1666 signed by C.V. explicitly states when the juvenile court‘s approval is required: “Under Ohio law, Ohio Revised Code Section 5103.15(B), approval of the juvenile court is required if this agreement is entered into by a public children service agency or is executed by a private child placing agency for a child six months of age or older.”
{¶ 41} Because this was an
{¶ 42} However, contrary to the view of the opinion concurring in part and dissenting in part, even if Adoption Link had requested
Except as provided in division (C) of this section, a parent of a minor who will be, if adopted, an adopted person as defined in section 3107.45 of the Revised Code shall do all of the following as a condition of a juvenile court approving the parent‘s agreement with a public children services agency or private child placing agency under division (B)(1) of section 5103.15 of the Revised Code: (1) Appear personally before the court.
(Emphasis added.) Accordingly, the juvenile court was without authority to approve the agreement under
{¶ 43} Where I disagree with the per curiam opinion is in its assertion that the juvenile court acted without subject-matter jurisdiction.
{¶ 44} For instance,
A juvenile court shall conduct a review hearing of an agreement entered into under division (B)(2) of section 5103.15 of the Revised Code once every six months after the court is notified of the agreement if the agreement is still in effect and the court has not been notified that the child who is the subject of the agreement has been placed for adoption. The private child placing agency that entered into the agreement shall file a case plan, prepared pursuant to section 2151.412 of the Revised Code, with the court at the review hearing.
{¶ 45} A juvenile court could not have continuing jurisdiction to conduct a hearing to review an
{¶ 46} Despite his having subject-matter jurisdiction, the judge‘s authority to approve the surrender agreement in this case was limited by
{¶ 47} Although C.V. cannot show that the juvenile court patently and unambiguously lacked subject-matter jurisdiction to act in this case, she has nevertheless met her burden of proving that she is entitled to a writ of prohibition.
{¶ 48} First, the juvenile-court judge‘s purported approval of the surrender agreement under
{¶ 49} “[I]n order for there to be an adequate remedy at law, a remedy must be complete, beneficial, and speedy.” Marich v. Knox Cty. Dept. of Human Servs./Children Servs. Unit, 45 Ohio St.3d 163, 165, 543 N.E.2d 776 (1989), citing State ex rel. Liberty Mills v. Locker, 22 Ohio St.3d 102, 488 N.E.2d 883 (1986). In Marich, this court held that a biological mother could proceed with her claim in habeas corpus because the appeal process would not provide her an adequate remedy at law due to the time delay it would involve. Specifically, we noted:
In this case, an appeal would not be adequate because it would not be speedy. Before the natural mother could appeal, she would have to move to vacate the juvenile court‘s entry consenting to her permanent surrender agreement. Since the natural mother has already informally requested this vacation and it has been denied, a more formal motion would be futile and time-consuming. After the denial of the motion, the natural mother would have to appeal to the court of appeals and the losing party would doubtlessly appeal to this court. On the other hand, the court of appeals and this court expedite habeas corpus matters.
Id. at 165.
{¶ 50} As was true in Marich, C.V.‘s remedy by way of an appeal from the juvenile court‘s order is inadequate. Like the mother in Marich, C.V. has already asked for and been denied relief from judgment by the juvenile court. If C.V. were required to appeal from that judgment, not only would there be a time delay as she prepared for argument and awaited a decision but that decision could result in a remand to the juvenile court for a determination whether it should proceed under
{¶ 51} Therefore, I vote to grant C.V.‘s request for a writ of prohibition against the juvenile-court judge both to prevent the judge from taking any further action in this matter and to remediate the erroneous
{¶ 52} In State ex rel. Adams v. Gusweiler, the first case in which this court departed from its earlier longstanding precedent that “prohibition may be invoked only to prevent a future act and not to undo an act already performed,” we noted that “strict adherence to that rule exalts form over substance.” 30 Ohio St.2d 326, 329, 285 N.E.2d 22 (1972). We also noted in that case that “a court which has jurisdiction to issue the writ of prohibition as well as the writs of procedendo and mandamus has plenary power, not only to prevent excesses of lower tribunals, but to correct the results thereof and to restore the parties to the same position they occupied before the excesses occurred.” (Emphasis added.) Id. at 330.
{¶ 53} In a case such as this, a case in which every justice of the court agrees that the juvenile court‘s findings and decision should not be considered or given preclusive effect in the adoption proceedings either because they were made in error or because they were rendered without subject-matter jurisdiction and in which the custody of an infant needing a permanent home hangs in the balance, it would be unconscionable not to issue the writ. I therefore agree that the writ of prohibition that C.V. seeks should be granted.
{¶ 54} The fact that the juvenile-court judge erroneously made findings under
{¶ 55} Since the probate court is in the best position to act as the finder of fact when determining the issue of the validity of the surrender agreement and since this court has instructed the probate court to do just that with the grant of a writ of prohibition against the juvenile court, I see no reason why the per curiam opinion addresses facts that may be relevant in the probate-court case but are not relevant to the issues before us.
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DEWINE, J., concurring in part and dissenting in part.
{¶ 56} I join the per curiam opinion except with regard to its grant of a writ of prohibition against the Greene County Juvenile Court judge. I would deny the writ of prohibition because the Greene County Juvenile Court did not patently and unambiguously lack jurisdiction to approve the surrender agreement.
{¶ 57}
{¶ 58} Contrary to the per curiam opinion‘s reading, subsection
{¶ 59} C.V.‘s 12th and 13th propositions of law go to whether the Greene County Juvenile Court judge properly exercised his jurisdiction. C.V. has an adequate remedy at law by intervening in the probate-court case to raise these arguments; thus, the arguments raised under these propositions provide no basis for issuing a writ of prohibition.
{¶ 60} I agree that C.V.‘s remedy is to intervene in the Greene County Probate Court proceedings. If she does so properly and in a timely manner, the probate court will first need to determine whether the required consents to surrender the child were obtained. In those proceedings, no preclusive effect should be given to the Greene County Juvenile Court‘s August 17, 2018 judgment entry. C.V. was not a party to the proceeding before the court, she was not notified of it, and she did not appear. Accordingly, she has not had a full and fair opportunity to litigate the validity of the surrender agreement. See Hicks v. De La Cruz, 52 Ohio St.2d 71, 74, 369 N.E.2d 776 (1977).
KENNEDY and FISCHER, JJ., concur in the foregoing opinion.
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Kuhn Limited and Ryan D. Kuhn, for relator.
Voorhees & Levy, L.L.C., and Michael R. Voorhees, for respondent Adoption Link, Inc.
Stephen K. Haller, Greene County Prosecuting Attorney, and Elizabeth A. Ellis, Assistant Prosecuting Attorney, for respondents the Greene County Juvenile Court and Probate Court judges.
Zeiger, Tigges & Little, L.L.P., and Daniel P. Mead, for respondent K.B.
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