State of Ohio, ex rel, Nichole D. Nalls v. Joseph F. Russo, Judge

• Decision Date: 14 February 2002
• Docket Number: 02-LW-0459,80410
• Citation: State of Ohio, ex rel, Nichole D. Nalls v. Joseph F. Russo, Judge, 2002 Ohio 583, 02-LW-0459, 80410 (Ohio App. Feb 14, 2002)
• Parties: STATE OF OHIO, ex rel, NICHOLE D. NALLS, Relator v. JOSEPH F. RUSSO, JUDGE, et al., Respondents
• Court: Ohio Court of Appeals

2002-Ohio-583

STATE OF OHIO, ex rel, NICHOLE D. NALLS Relator v. JOSEPH F. RUSSO, JUDGE, et al., Respondents

No. 80410

02-LW-0459 (8th)

Court of Appeals of Ohio, Eighth District Cuyahoga

February 14, 2002

For Relator: LESTER S. POTASH, ESQ., 55 Public Square, Cleveland Ohio 44113-1901

For Respondents: WILLIAM D. MASON, Cuyahoga County Prosecutor CHARLES E. HANNAN, JR., Ass't, 1200 Ontario Street, Cleveland, Ohio 44113

OPINION

COLLEEN CONWAY COONEY, J.:

Nichole D. Nalls, the relator, has filed an amended complaint for writs of prohibition, mandamus, and procedendo. Nalls seeks an order from this court to prevent Judge Joseph F. Russo and Magistrate Mark R. Majer, the respondents, from exercising jurisdiction in the underlying case of In re Nalls, Cuyahoga County Juvenile Court Case No. 01902563. Nalls also prays that this court issue a writ of mandamus to require Judge Peter M. Sikora, Ex- Officio Clerk, respondent, to strike the judgment entry of October 22, 2001, as entered in In re Nalls, supra. In the alternative, Nalls seeks a writ of procedendo to require Magistrate Majer to prepare, sign, and file a Magistrate's Decision in Case No. 01902563 with Respondent Judge Sikora, Ex-Officio Clerk, who shall serve copies on all parties or their attorneys. The respondents have filed a joint motion for summary judgment which we grant for the following reasons.

On January 31, 2001, the Cuyahoga County Department of Children and Family Services (CCDCFS) removed Nalls' son, Darin Nalls, from her custody and placed him with a relative pending action by the Cuyahoga County Juvenile Court. On February 2, 2001, CCDCFS filed a complaint in the Cuyahoga County Juvenile Court alleging that Darin Nalls was an abused and dependent child pursuant to R.C. 2151.031(D) and R.C. 2151.04(B) and (C). On May 29, 2001, the complaint for abuse and dependency was dismissed. On May 31, 2001, a second complaint, which alleged that Darin Nalls was an abused and dependent child, was filed in the Cuyahoga County Juvenile Court and assigned to the docket of Judge Russo. On August 20, 2001, and October 3, 2001, Magistrate Majer conducted hearings with regard to the abuse and dependency complaint. On October 22, 2001, a joint journal entry, as executed by Judge Russo and Magistrate Majer, was filed and journalized and specifically found that Darin Nalls was a dependent child as defined by R.C. 2151.04(C) and subject to a dispositional hearing. On October 25, 2001, Nalls filed her complaint for writs of prohibition, mandamus, and procedendo.

Nalls' complaint for prohibition, as well as her request for mandamus and procedendo, is premised upon alleged procedural defects that occurred with regard to the hearings conducted by Magistrate Majer and the finding of dependency rendered by Judge Russo. Specifically, Nalls argues that Magistrate Majer and Judge Russo lacked the necessary jurisdiction to conduct any hearings, issue any findings of dependency, or proceed to a final determination due to the following procedural defects: (1) no specific order of reference authorizing Magistrate Majer to conduct hearings with regard to the complaint for neglect and dependency was filed in Case No. 1902563; and (2) Judge Russo was not permitted to make a finding of dependency because Magistrate Majer did not issue an independent decision, as required by Juv.R. 40(E), following the neglect and dependency hearings.

Prohibition is an extraordinary writ which is not routinely or easily granted. For this court to issue a writ of prohibition, the relator must demonstrate that: (1) the respondent is about to exercise judicial power; (2) the exercise of such judicial power is unauthorized by law; and (3) the denial of the writ will cause injury for which no other adequate remedy exists in the ordinary course of the law. State ex rel. Barclays Bank PLC v. Hamilton Cty. Court of Common Pleas (1996), 74 Ohio St.3d 536, 66 N.E.2d 458; State ex rel. Largent v. Fisher (1989), 43 Ohio St.3d 160, 540 N.E.2d 239. In addition, an adequate remedy at law will preclude relief in prohibition. State ex rel. Lesher v. Kainrad (1981), 65 Ohio St.2d 68, 417 N.E.2d 1382; State ex rel. Sibarco Corp. V. City of Berea (1966), 7 Ohio St.2d 85, 218 N.E.2d 428. Furthermore, prohibition does not lie unless the relator clearly demonstrates that the court has no jurisdiction of the cause which it is attempting to adjudicate or the court is about to exceed its jurisdiction. State ex rel. Ellis v. McCabe (1941), 138 Ohio St 417, 35 N.E.2d 571. Finally, prohibition must be used with great caution and should not be issued in a doubtful case. State ex rel. Merion v. Tuscarawas Cty. Court of Common Pleas (1940), 137 Ohio St. 273, 28 N.E.2d 641; Reiss v. Columbus Municipal Court (App. 1956), 76 Ohio Law Abs. 141, 145 N.E.2d 447.

In the case sub judice, Nalls argues that: (1) Judge Russo and Magistrate Majer have exercised jurisdiction and are about to exercise judicial power by making a final determination as to the disposition of Darin Nalls following a finding that he is a dependent child; (2) Judge Russo and Magistrate Majer are without jurisdiction to issue a final disposition following a determination that Darin Nalls is a dependent child; and (3) there exists no adequate remedy in the ordinary course of the law. Nalls has established the initial prong of the three-part test since she has established that Judge Russo and Magistrate Majer have exercised jurisdiction and are about to make a final disposition as a result of finding that Darin Nalls is a dependent child. Nalls, however, has failed to establish the second and third prongs of the three- part test.

Judge Russo and Magistrate Majer possess the necessary jurisdiction to hear a complaint which alleges that Darin Nalls is an abused or dependent child. The jurisdiction necessary to hear a complaint for an abused or dependent child is contained in Article IV, Section 4 of the Ohio Constitution and R.C. 2151.07. In addition, the procedures employed by Judge Russo and Magistrate Majer, which ultimately resulted in the determination that Darin Nalls was a dependent child, did not divest them of the necessary jurisdiction to render such a decision and to proceed to a final disposition.

Nalls argues that the lack of a specific order of reference to Magistrate Majer prevented the magistrate from conducting any hearings with regard to the complaint for an abused and dependent child and further prevented Judge Russo from reviewing and adopting the decision of Magistrate Majer. Contrary to Nalls' argument, an individualized and specific order of reference is not required in order for a magistrate to hear any matters that are referred by a judge that has been assigned to preside over a specific complaint filed in the juvenile court. This court, in In re Morales, et al. (April 12, 2001), Cuyahoga App. No. 78271, unreported, examined the issue of a lack of jurisdiction on the part of the Cuyahoga County Juvenile Court to proceed to a final determination vis-a-vis the failure of the record to contain an order of reference to a magistrate, and held that:

In her fourth assignment of error, Ms. Pearson contends that the trial Court lacked jurisdiction to hear the motion for permanent custody because the record of the case does not contain an order of reference to the magistrate who heard the temporary custody complaint. CCDCFS maintains that an order of reference was journalized with the Cuyahoga County Juvenile Court Clerk of Courts. The issue here is whether the trial court had jurisdiction to hear the motion for permanent custody.

Juv.R. 40 and Civ.R. 53 provide that a juvenile judge may appoint a magistrate to act in a proceeding and hear and recommend disposition on official cases. Juv.R. 40 and Civ.R. 53 require an order of reference in order for a magistrate to have such authority.

Juv.R. 40 and Civ.R. 53 do not specify the form of the reference order nor do they require the court to journalize an individual order of reference for each issue submitted.

White v. White (1977), 50 Ohio App.2d, 263, 267. There is no specific requirement, limitation, or restriction on the manner or method of the court entering an order of reference. Id. An order of reference may be made in one of at least three ways:

1. An individual journalized order of reference in a particular case or several cases;

2. A blanket journalized order of reference in a particular type or types of cases;

3. A local rule or rules providing for automatic reference in certain types of cases.

Id.

Here, the record shows that a blanket journalized order of reference, as referred to in 2 above, was issued by the juvenile court for Magistrate Peter Murray and journalized with the Cuyahoga Juvenile Court Clerk of Courts on July 25, 1999. Thus, the underlying order of temporary custody issued by Magistrate Murray is valid and the trial court had jurisdiction to hear the motion for permanent custody. Accordingly, Ms. Pearson's fourth assignment of error is overruled. Id., at 14.

Attached to the joint motion for summary judgment is a copy of a journal entry, journalized on June 25, 1999, which clearly demonstrates that a blanket order of reference was issued by the Cuyahoga County Juvenile Court for Magistrate Majer. This blanket journal order of reference vested Magistrate Majer with the necessary jurisdiction to conduct a hearing with regard to the complaint for an abused or dependent child and issue a decision and recommendation. White v. White, supra; In re: Morales, supra; Juv.R. 40; Loc.R. 9 of the Court of Common Pleas of Cuyahoga County, Juvenile Division.

We further find that Judge Russo possessed the necessary jurisdiction to adopt the decision as issued by Magistrate Majer and make a...