Hunt, In re

• Decision Date: 16 June 1976
• Docket Number: No. 75-1128,75-1128
• Citation: 348 N.E.2d 727,46 Ohio St.2d 378
• Parties: , 75 O.O.2d 450 In re HUNT et al.
• Court: Ohio Supreme Court

Page 378

46 Ohio St.2d 378

348 N.E.2d 727, 75 O.O.2d 450

In re HUNT et al.

No. 75-1128.

Supreme Court of Ohio.

June 16, 1976.

Syllabus by the Court

1. A complaint under Juv.R. 10 and R.C. 2151.27 alleging that a child is dependent must state the essential facts which bring the proceedings within the jurisdiction of the court. (Juv.R. 10 and R.C. 2151.27.)

2. A writ of habeas corpus will ordinarily be denied where there is an adequate remedy in the ordinary course of law.

This is an appeal from the denial of a writ of habeas corpus in an action originating in the Court of Appeals.

The appellant, Patricia Ellen Parrish, is the natural mother and sole parent of Christopher Steven Hunt, age seven, and David Michael Hunt, age five, children born out of wedlock. She is married, and lives with her husband and the two children in Brimley, Michigan. On July 18, 1975, she came to Ohio with her two children and visited her mother, Lillian Hunt, appellee herein, of Conneaut, Ohio. On July 25, 1975, appellant was admitted to Woodside Receiving Hospital, Youngs-town, as an emergency patient suffering from a nervous disorder. At oral argument before this court, counsel for appellant stated that her condition was diagnosed as post-partum depression following the suffering of a miscarriage.

On July 30, 1975, appellant's mother executed and filed a dependency complaint in the Juvenile Court of Ashtabula County, and was granted emergency temporary custody of the two children. On August 23, 1975, the appellant was discharged from the hospital and returned to her home in Michigan after being refused custody of the children.

On September 9, 1975, a hearing was held with regard to the dependency complaint. On September 26, the appellant filed a complaint for a writ of habeas corpus in the Court of Appeals, claiming that she had been unlawfully deprived of the custody of her children and that the children were restrained of their liberty. The Court of Appeals denied the writ in a decision rendered orally with one judge dissenting.

An appeal from that decision is before this court as a matter of right.

L. E. Downey, Ashtabula, for appellant.

Walter E. Thayer, Conneaut, for appellee.

STERN, Justice.

Appellant 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, Illian Hunt, says that she has knowledge of certain children, to-wit: Christopher Steven and David Michael Hunt age 7 and 5 years, respectively * * * who appear to be dependent 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 R.C. 2151.04(C), one of the statutory definitions of a dependent child.

Prior to 1969, R.C. 2151.27 provided that a complaint was 'sufficiently definite by using the word * * * dependent * * *,' and lower courts upheld complaints based upon bare allegations of dependency. In re Anteau (1941), 67 Ohio App. 117, 36 N.E.2d 47; In re Hayes (1938), 28 Ohio Law Abs. 154; In re Decker (1930), 28 N.P. (N.S.) 433. Effective November 19, 1969, R.C. 2151.27 was amended to require that 'in addition to the allegation that the child is * * * dependent * * * the complaint must allege the particular facts upon which the allegation of * * * dependency * * * is based.' The same requirement is repeated in Juv.R. 10(B)(1), which provides that the complaint shall:

'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 could 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 require an order of temporary custody under R.C. 2151.33 or Juv.R. 13.

We agree with the appellant that this complaint is defective. 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 matrial allegation of the complaint.

'(D) Any defense, objection or request which is capable of determination without hearing on the allegations of the complaint may be raised before the adjudiciatory hearing by motion. The following must be heard before the adjudicatory hearing, though not necessarily on a separate date:

'(1) Defenses or objections based on defects in the institution of the proceedings '(2) Defenses or objections based on defects in the complaint (other than failure to show jurisdiction in the court or to charge an offense) which objections shall be noticed by the court at any time during the pendency of the proceeding; * * *'

Under this procedural 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 ans as with every extraordinary remedy is not available as a means of relief where there is an adequate remedy in the ordinary course of the law. In re Burson, 152 Ohio St. 375, 89 N.E.2d 651. Habeas corpus may not be used as a substitute for appeal nor may it be resorted to where an adequate statutory remedy for review of the questions presented exists.' In re Piazza (1966), 7 Ohio St.2d 102, 103, 218 N.E.2d 459; In re Clendenning (1945), 145 Ohio St. 82, 60 N.E.2d 676. Cf. Sunal v. Large (1947), 332 U.S. 174, 177-84, 67 S.Ct. 1588, 91 L.Ed. 1982.

This case 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.

C. WILLIAM O'NEILL, C. J., and HERBERT, J. J. P. CORRIGAN, WILLIAM B. BROWN and PAUL W. BROWN, JJ., concur.

CELEBREZZE, Justice (concurring in part and dissenting in part.)

The majority opinion properly concludes that R.C. 2151.27 and Juv.R. 10(B)(1) require that particular facts be recited in a complaint filed in Juvenile Court in a dependency action, and that the absence of such...