The State ex rel. Roush v. Montgomery, 032019 OHSC, 2018-0905

Docket Nº:2018-0905
Opinion Judge:PER CURIAM.
Party Name:The State ex rel. Roush, Appellant, v. Montgomery, Judge, Appellee.
Attorney:Robert B. Roush, pro se.
Judge Panel:O'Connor, C.J., and Kennedy, French, Fischer, DeWine, Donnelly, and Stewart, JJ., concur.
Case Date:March 20, 2019
Court:Supreme Court of Ohio


The State ex rel. Roush, Appellant,


Montgomery, Judge, Appellee.

No. 2018-0905

Supreme Court of Ohio

March 20, 2019

Submitted January 29, 2019

Appeal from the Court of Appeals for Franklin County, No. 17AP-791, 2018-Ohio-2098

Robert B. Roush, pro se.


{¶ 1} This is an appeal from a judgment of the Tenth District Court of Appeals dismissing the complaint of appellant, Robert B. Roush, for a writ of prohibition or mandamus. Roush, an inmate at the Ross Correctional Institution, seeks a writ requiring dismissal of an adoption proceeding concerning his biological child. That case was brought in the probate division of the Franklin County Court of Common Pleas, and the appellee in this action, Judge Robert G. Montgomery, is the judge of that court. In his brief to this court, Roush notes that Judge Montgomery has already granted the adoption. Under settled law, the issuance of a judgment in the adoption case does not moot the prohibition claim. State ex rel. Brady v. Pianka, 106 Ohio St.3d 147, 2005-Ohio-4105, 832 N.E.2d 1202, ¶ 8 (prohibition will lie both to prevent the future unauthorized exercise of jurisdiction and to correct a previous jurisdictionally unauthorized action); State ex rel. Consumers' Counsel v. Pub. Util. Comm., 102 Ohio St.3d 301, 2004-Ohio-2894, 809 N.E.2d 1146, ¶ 11.

{¶ 2} Roush's main contention is that because an adoption cannot be granted under R.C. 3107.06 without the biological father's consent, he deprived the probate court of jurisdiction by withholding his consent to the adoption. Additionally, Roush contends that his incarceration and the biological mother's cease-and-desist-contact order against him negated the probate court's jurisdiction to grant the adoption based on a finding under R.C. 3107.07(A) that he had failed to maintain more than de minimis contact with the child over a period of one year or more.

{¶ 3} The court of appeals dismissed the prohibition claim, holding that the probate court had jurisdiction to render a determination under R.C. 3107.07(A) as to "whether [Roush] has failed without justifiable cause to provide more than de minimis contact with the minor for a period of at least...

To continue reading