State ex rel. Allen Cnty. Children Servs. Bd. v. Mercer Cnty. Court of Common Pleas

• Decision Date: 20 October 2016
• Docket Number: No. 2016–0723.,2016–0723.
• Citation: 2016 Ohio 7382,81 N.E.3d 380,150 Ohio St.3d 230
• Parties: The STATE ex rel. ALLEN COUNTY CHILDREN SERVICES BOARD v. MERCER COUNTY COURT OF COMMON PLEAS, PROBATE DIVISION, et al.
• Court: Ohio Supreme Court

150 Ohio St.3d 230

81 N.E.3d 380

2016 Ohio 7382

The STATE ex rel. ALLEN COUNTY CHILDREN SERVICES BOARD

v.MERCER COUNTY COURT OF COMMON PLEAS, PROBATE DIVISION, et al.

No. 2016–0723.

Supreme Court of Ohio.

Submitted Aug. 31, 2016.

Decided Oct. 20, 2016.

Juergen A. Waldick, Allen County Prosecuting Attorney, and Terri L. Kohlrieser, Assistant Prosecuting Attorney, for relator, Allen County Children Services Board.

Matthew K. Fox, Mercer County Prosecuting Attorney, and Amy B. Ikerd and Andrew J. Hinders, Assistant Prosecuting Attorneys, for respondents, Court of Common Pleas of Mercer County, Probate Division, Judge Mary Pat Zitter, and Judge James Rapp.

David W. Haverfield, urging denial of the motion for reconsideration for amicus curiae, Public Children Services of Ohio.

O'DONNELL, J.

{¶ 1} The issue in this case is whether a probate court may exercise its exclusive jurisdiction over adoption proceedings while a juvenile court is concurrently exercising continuing jurisdiction over a child custody proceeding.

{¶ 2} The Allen County Children Services Board ("Board") commenced this action seeking a writ of prohibition barring the Probate Division of the Mercer County Common Pleas Court ("Probate Court") and Judges Mary Pat Zitter and James Rapp from exercising jurisdiction over M.S., a minor child.¹ At that time, the child was in the temporary custody of the Board by order of the Juvenile Division of the Allen County Common Pleas Court ("Juvenile Court"). The Probate Court and the Juvenile Court both assert jurisdiction over the child's residential placement.

{¶ 3} On June 1, 2016, this court granted a peremptory writ of prohibition precluding the Probate Court from "exercising jurisdiction in the case captioned In the Matter of the Placement and Adoption of M.A.S.A., Mercer County Common Pleas Court, Probate Division, case No. 2016 5005, consistent with the opinion to follow." 146 Ohio St.3d 1404, 2016-Ohio-3255, 50 N.E.3d 571. Before this court issued an opinion, the Probate Court and Judges Zitter and Rapp moved for reconsideration.

{¶ 4} We grant the motion for reconsideration, hold that the Probate Court acted within its jurisdiction and in accordance with its statutory authority in placing M.S. for adoption with Brian and Kelly Anderson with the consent of her mother, and rescind the peremptory writ of prohibition issued on June 1, 2016. Accordingly, for the reasons stated in this opinion, we deny the requested writ.²

Facts and Procedural History

{¶ 5} M.S. was born on July 24, 2014, and she tested positive for cocaine at or about the time of her birth. On August 7, 2014, the Board removed the child from her mother pursuant to an ex parte emergency custody order and placed her in the foster care of Brian and Kelly Anderson.

{¶ 6} At a hearing on August 8, 2014, the Juvenile Court found probable cause to believe that M.S. was subject to immediate harm from abuse or neglect and placed her in the shelter care of the Board. After the Board filed a dependency complaint on M.S.'s behalf, the Juvenile Court declared her to be dependent and abused and subsequently ordered the child placed in the temporary custody of the Board.

{¶ 7} On November 13, 2015, the Andersons moved to intervene in the Juvenile Court case and sought legal custody of M.S. That same day, M.S.'s mother filed a document agreeing to the Andersons' intervention and objecting to any plan that would place M.S. in the care or custody of the mother's sister, who resides in Indiana and has custody of M.S.'s half-brother by order of a West Virginia court. The Board on January 4, 2016, moved to modify the temporary-custody order and place M.S. in the legal custody of M.S.'s aunt and to terminate "all Court-ordered services" by the Board. In response, M.S.'s mother asked the court to designate the Andersons as legal custodians.

{¶ 8} On or about March 16, 2016, the Board removed M.S. from the Andersons' home and placed her with her aunt.

{¶ 9} On March 28, 2016, M.S.'s mother filed an application in the Probate Court, asking the court to place M.S. "for the purpose of adoption" with the Andersons. The Andersons petitioned the Probate Court to adopt M.S. on March 31, 2016, submitting an application for placement for the purpose of adoption signed by M.S.'s mother, who appeared before the Probate Court and executed her consent to the adoption. The Probate Court approved the application for placement that same day and ordered the Board to release M.S. to the custody of the Andersons' attorney.

{¶ 10} In response to this order, the Board filed an emergency ex parte motion in the Juvenile Court seeking an order preventing removal of the child from her current placement. On April 1, 2016, the Juvenile Court granted the motion, asserting exclusive, original, and continuing jurisdiction over the child. It also denied the Andersons' motion to intervene in the Juvenile Court case, stating that "[f]oster parents have no right under the rules of juvenile procedure to participate as parties in the adjudication of the rights of natural parents." The Juvenile Court expressed concern that the Andersons, who as foster parents serve as agents of the Board, were instead "acting as independent free agents and well outside their role as caregivers" by contemplating adoption of the child despite the Board's goal of placing her in the legal custody of her aunt.

{¶ 11} Based on the Juvenile Court's order, the Board did not release the child and instead moved to stay proceedings in the Probate Court. The Andersons then sought to have the Board held in contempt of court for its failure to surrender custody of M.S. as ordered.

{¶ 12} Meanwhile, on April 26, 2016, the Juvenile Court denied the Andersons' renewed motion to intervene. In its order, the court quoted In re Adoption of Asente, 90 Ohio St.3d 91, 92, 734 N.E.2d 1224 (2000), for "the bedrock proposition that once a court of competent jurisdiction has begun the task of deciding the long-term fate of a child, all other courts are to refrain from exercising jurisdiction over that matter." It then observed that the Juvenile Court exercised jurisdiction over the child first, that it was exercising its continuing jurisdiction under R.C. 2151.415(E) and there were "two separate motions relating to the custody of the Child" pending, and that the Probate Court's approval of a placement for adoption did not confer party status on the Andersons in the Juvenile Court.

{¶ 13} On April 27, 2016, the Probate Court ruled that it had jurisdiction to proceed with the adoption, denied the Board's motion for stay, scheduled a hearing on the motion for contempt, and set the adoption petition for final hearing.

{¶ 14} The Board filed this complaint for a writ of prohibition against the Probate Court and Judges Zitter and Rapp on May 10, 2016. This court granted a peremptory writ of prohibition on June 1, 2016, with an opinion to follow announcement of the decision. 146 Ohio St.3d 1404, 2016-Ohio-3255, 50 N.E.3d 571.

{¶ 15} It is not clear what actions, if any, the Juvenile Court has taken since release of our decision in this case. Pursuant to R.C. 2151.415(D)(4), the Juvenile Court's temporary-custody order would have expired, at the latest, on August 8, 2016, which is two years from the date of the shelter-care order.

{¶ 16} The Probate Court and Judges Zitter and Rapp now seek reconsideration of our June 1, 2016 entry, asserting that prohibiting the Probate Court from exercising jurisdiction has deprived M.S.'s mother of her constitutional rights, that Ohio law provides for the Juvenile Court and the Probate Court to have concurrent jurisdiction in these circumstances, and that the adoption statutes were intended to ensure the child a permanent home in an expeditious manner. They contend that until the Board has terminated parental rights, it has no right to select the adoptive family for the child, because the adoption statutes expressly provide that parents retain the right to consent to an adoption notwithstanding the grant of temporary custody to the Board. They contend that granting the writ in this case has therefore prevented M.S.'s mother from exercising her residual rights.

{¶ 17} The Board responds that this court's writ did not affect the mother's right to consent to an adoption but rather reflected that the Juvenile Court had authority to divest her of the right to decide where M.S. will live once it found that M.S. was an abused, neglected, or dependent child. The Board asserts that the mother has not been deprived of due process, because the Revised Code precludes the Probate Court from adjudicating an adoption petition only while M.S. is subject to the Juvenile Court's temporary-custody order. The Board notes that it is not necessary for M.S. to be adopted in order to provide her a permanent and stable home, because a grant of legal custody to her biological aunt may be in the child's best interest. And it asserts that this court should not permit "a biological parent who has failed to adequately care for his/her children and who does not like the decisions of the public children services agency and the juvenile court to collude with others to adopt the very same children who the parents have abused, neglected, or caused to be dependent."

{¶ 18} Accordingly, we are called upon to reconcile the conflicting claims of jurisdiction asserted by the Juvenile Court and the Probate Court.

Law and Analysis

{¶ 19} To be entitled to a writ of prohibition, the Board must establish the exercise of judicial power, that the exercise of that power is unauthorized by law, and that denying the writ would result in injury for which no adequate remedy exists 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. Even if an adequate remedy exists, a writ may be appropriate when the lack of jurisdiction is patent and unambiguous. State ex rel. V.K.B. v. Smith, 138 Ohio St.3d 84, 2013-Ohio-5477, 3 N.E.3d...