The State Ex Rel. Otten v. Henderson
| Decision Date | 18 August 2011 |
| Docket Number | No. 2010–2223.,2010–2223. |
| Citation | 2011 -Ohio- 4082,953 N.E.2d 809,129 Ohio St.3d 453 |
| Parties | The STATE ex rel. OTTEN, Appellant,v.HENDERSON, Magistrate, et al., Appellees. |
| Court | Ohio Supreme Court |
OPINION TEXT STARTS HERE
Maxwell D. Kinman, for appellant.Donald W. White, Clermont County Prosecuting Attorney, and David H. Hoffmann, Assistant Prosecuting Attorney, for appellees.Erik L. Smith, urging reversal for amicus curiae, Erik L. Smith.PER CURIAM.
[Ohio St.3d 453] {¶ 1} This is an appeal from a judgment denying a biological father's complaint for a writ of prohibition to prevent the Clermont County Probate Court and its judge1 and magistrate from proceeding on a stepfather's adoption petition when, at the time the petition was filed, a previously filed, separate adoption proceeding involving the same child initiated in the Hamilton County Probate Court by the stepfather remained pending. Because under these circumstances, the Clermont County Probate Court patently and unambiguously lacked jurisdiction to proceed in the adoption case, we reverse the judgment of the court of appeals and grant the writ.
{¶ 2} This case arises from three overlapping cases—a juvenile court parentage case involving the biological parents and the child and two separate probate court adoption cases involving the biological father, the stepfather, and the child. In July 2005, while married to Jeremy Tuttle, Susan Tuttle, n.k.a. Susan Crooks (“Susan”), gave birth to P.A.C. Genetic testing conducted in August 2005 established that appellant, Gary Otten, is the child's biological father. Susan divorced Tuttle after P.A.C.'s birth, and in April 2007, she married Kevin Michael Crooks.
[Ohio St.3d 454] Clermont County Juvenile Court Case
{¶ 3} In January 2007, Otten filed a complaint in the Clermont County Court of Common Pleas, Juvenile Division, for the allocation of parental rights and responsibilities regarding P.A.C. Tuttle filed an action against Otten to establish a parent-and-child relationship in the same court. In April 2007, Crooks filed a petition to adopt P.A.C. in the Hamilton County Court of Common Pleas, Probate Division. In August 2007, the juvenile court concluded that it was not in the best interest of P.A.C. to grant parenting time to Otten because any orders issued by the court could be superseded by an adoption decree entered by the Hamilton County Probate Court in the action pending there. The Clermont County Juvenile Court declared Otten P.A.C.'s father but stayed any further action pending the outcome of the adoption proceeding.
{¶ 4} However, in March 2008, a magistrate for the juvenile court designated Susan as the residential parent and legal custodian of P.A.C. and granted Otten guideline parenting time with P.A.C. After Susan's objections were overruled, she appealed from the judgment.
{¶ 5} In June 2009, the court of appeals affirmed the juvenile court's judgment awarding Otten guideline parenting time with his daughter, P.A.C. Otten v. Tuttle, Clermont App. No. CA2008–05–053, 2009-Ohio-3158, 2009 WL 1845249. In so holding, the court of appeals further ordered that the parenting-time award be immediately implemented:
{¶ 6} “Because of excessive delay in this case that has prevented [Otten] from visiting [P.A.C.] for over two years, we instruct that the juvenile court's order awarding [Otten] standard parenting time be put into effect on an immediate basis with the issuance of this opinion.” Id. at ¶ 17.
{¶ 7} Instead of implementing the ordered parenting time, Susan moved to modify the parenting time. In August 2009, the juvenile court amended its previous order and instituted a graduated schedule to transition to guideline parenting time. Otten subsequently filed a motion to find Susan in contempt of the graduated order, which the juvenile court denied in February 2010.
{¶ 8} Otten appealed the juvenile court orders, and the court of appeals, in November 2010, reversed the judgment instituting a graduated schedule of parenting time and again remanded the matter to the juvenile court “with the unambiguous instruction to grant [Otten] standard parenting time in accordance with its May 16, 2008 decision immediately.” (Emphasis sic.) Otten v. Tuttle, Clermont App. No. CA2009–09–055, 2010-Ohio-5424, 2010 WL 4512830, ¶ 30. The court of appeals affirmed the judgment denying Otten's motion to find Susan in contempt. Id. at ¶ 35.
[Ohio St.3d 455] Hamilton County Probate Court Case
{¶ 9} In April 2007, shortly after Susan married Crooks, and while the action to establish a parent-and-child relationship was pending in the Clermont County Juvenile Court, Crooks filed a petition to adopt P.A.C. in the Hamilton County Probate Court. In the petition, Crooks stated that the consent of Tuttle, whom he listed as the “presumed legal father” of P.A.C., was not required, because Tuttle was not the biological father of the child. The petition did not name Otten as the biological father of the child or specify why his consent was not required. Otten intervened and moved to stay or dismiss the adoption proceeding; the probate court then stayed the proceeding pending a determination in the juvenile court proceeding.
{¶ 10} Once the juvenile court determined that Otten was P.A.C.'s biological father and granted him parenting time in May 2008, the probate court dismissed Crooks's adoption petition because Otten's consent was necessary for the adoption. Crooks appealed the dismissal. In February 2009, Crooks filed an amended petition to adopt P.A.C. in the Hamilton County Probate Court. In his amended petition, Crooks listed Otten as the child's putative father and father and stated that Otten's consent was unnecessary for the adoption because Otten “has failed without justifiable cause to communicate with the minor for a period of at least one year immediately preceding the filing of the adoption or the placement of the minor in the home of the petitioner” and “has failed without justifiable cause to provide for the maintenance and support of the minor as required by law or judicial decree for a period of at least one year immediately preceding the filing of the adoption petition or the placement of the minor in the home of the petitioner.”
{¶ 11} On Crooks's appeal from the probate court's judgment dismissing his original adoption petition, the court of appeals, in September 2009, reversed the dismissal because Otten had failed to timely register as P.A.C.'s father on the putative-father registry and thus his consent to the adoption was not required. In re Adoption of P.A.C., 184 Ohio App.3d 88, 2009-Ohio-4492, 919 N.E.2d 791, ¶ 30.
{¶ 12} On July 22, 2010, we reversed the judgment of the court of appeals and held that the Hamilton County Probate Court had acted properly in initially staying the adoption proceeding pending the Clermont County Juvenile Court's determination of parentage and in ultimately dismissing Crooks's original adoption petition because Otten had been adjudicated the biological father of P.A.C. by the juvenile court and had not consented to the adoption. In re Adoption of P.A.C., 126 Ohio St.3d 236, 2010-Ohio-3351, 933 N.E.2d 236. Crooks moved for reconsideration of our decision, and in October 2010, we denied the motion. 126 Ohio St.3d 1592, 2010-Ohio-4880, 934 N.E.2d 939.
[Ohio St.3d 456] {¶ 13} On September 20, 2010, Crooks withdrew his amended adoption petition. The probate court set a hearing for December 30, 2010, to determine whether Crooks wanted to proceed on his original adoption petition. In February 2011, the probate court denied Otten's objections to the magistrate's decision and specified that the adoption proceeding was closed.
{¶ 14} On July 28, 2010, six days after we issued our decision in P.A.C., 126 Ohio St.3d 236, 2010-Ohio-3351, 933 N.E.2d 236, but before a mandate was issued in that case, Crooks filed a petition in the Clermont County Court of Common Pleas, Probate Division, to adopt P.A.C. In this petition, Crooks stated that the consent of Otten to the adoption was not required, because he “has failed without justifiable cause to provide more than de minimis contact with the minor for a period of at least one year immediately preceding the filing of the adoption or the placement of the minor in the home of” Crooks, he “has failed without justifiable cause to provide for the maintenance and support of the minor as required by law or judicial decree for a period of at least one year immediately preceding the filing of the adoption petition or the placement of the minor in the home of the petitioner,” and “the adoption is in the child's best interest.”
{¶ 15} The probate court scheduled the matter for a hearing, and Otten filed an objection to the court's jurisdiction because the adoption proceeding initiated in the Hamilton County Probate Court was pending.
{¶ 16} On September 20, 2010, Otten filed an action for writs of prohibition and mandamus challenging the jurisdiction of the Clermont County Probate Court over Crooks's adoption petition. In an amended complaint, Otten sought a writ of prohibition to prevent appellees, the Clermont County Probate Court and its judge and magistrate, from proceeding on the adoption petition and to immediately dismiss the petition. After appellees submitted an answer admitting all matters of public record and denying any remaining claims, the court of appeals denied the writ.
{¶ 17} Otten appealed the court of appeals' judgment, but we granted his motion to remand the cause to the court of appeals to rule on his motion for relief from judgment. State ex rel. Otten v. Henderson, 127 Ohio St.3d 1544, 2011-Ohio-647, 941 N.E.2d 801. On March 30, 2011, the court of appeals denied the motion. We then reinstated a briefing schedule. 128 Ohio St.3d 1440, 2011-Ohio-1642, 944 N.E.2d 691.
{¶ 18} This cause is now before the court on Otten's appeal as of right.
[Ohio St.3d 457] Legal Analysis
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