Howard v. Catholic Social Serv. of Cuyahoga Cty., Inc. - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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Howard, Appellant, v. Catholic Social Services of Cuyahoga
County, Inc., et al., Appellees.
[Cite as Howard v. Catholic Social Serv. of Cuyahoga Cty., Inc.
(1994), Ohio St.3d .]
Custody -- Juvenile law -- Writ of habeas corpus does not lie
in child custody matter, when -- Courts -- Jurisdiction --
Appellate procedure -- Appeal divests trial court of
jurisdiction to consider Civ.R. 60(B) motion for relief
from judgment.
(Nos. 94-11 and 94-153 -- Submitted May 10, 1994 --
Decided August 31, 1994.)
Appeal from the Court of Appeals for Cuyahoga County, No.
66594.
In 1986, petitioner-appellant, Timothy Howard, entered
into a common-law marriage with respondent-appellee, Julie
Howard. When the parties separated between 1990 and 1992,
appellant visited their two children, who had primarily resided
with Julie. On March 14, 1992, Julie gave birth to Mary Beth,
the child at issue during these proceedings. Julie had
concealed her pregnancy and Mary Beth's birth from appellant,
advising him that she went to the hospital to have a cyst
removed. At the time of Mary Beth's birth, Julie had stated
that she did not know the child's biological father's identity
and denied that appellant was the child's biological father.
On March 17, 1992, Julie agreed to give temporary custody
of Mary Beth to respondent-appellee, Catholic Social Services
of Cuyahoga County, Inc. ("CSS"), a private child-placing
agency. On June 1, 1992, Julie executed a permanent surrender
of the child to CSS because she was "unable to care for the
child" and believed that "adoption is in her best interests."
In a complaint filed on November 24, 1992 in case No. 9214817,
CSS alleged that the child was dependent and prayed for
permanent custody. Following a hearing at which all of the
parties were present, the court granted emergency temporary
custody of Mary Beth to CSS on December 14, 1992. In a report
of a DNA parentage test dated February 1, 1993, appellant was
determined to be the biological father of the child. Following
an adjudicatory hearing, but prior to an adjudication of Mary

Beth's status as a dependent child, the Cuyahoga County Common
Pleas Court, Juvenile Division, granted appellant's motion to
dismiss case No. 9214817 on September 21, 1993 pursuant to R.C.
2151.35(B)(1). The juvenile court specified that the dismissal
was without prejudice.
Prior to the actual dismissal of case No. 9214817, Mary
Beth, through court-appointed counsel, filed a complaint on
September 1, 1993 in case No. 9311338 alleging that she was a
dependent child and requesting that permanent custody be
awarded to CSS. The complaint further alleged that appellant
was an alcoholic who had been accused of being violent by his
wife, Julie. The juvenile court granted Mary Beth's motion for
emergency temporary custody of her to CSS on the same day that
the complaint was filed. The juvenile court subsequently
vacated the emergency temporary custody order but granted a
second motion for emergency temporary custody on September 14,
1993.
In November 1993, adjudicatory hearings were held on the
complaint in case No. 9311338. On November 30, 1993, i.e.,
ninety days after the complaint for permanent custody was
filed, appellant's counsel instructed appellant to leave the
courtroom following his direct examination during a
continuation of the adjudicatory hearings. That day,
appellant's counsel filed a motion to dismiss the case pursuant
to R.C. 2151.28(B)(3) and 2151.35(B)(1). The motion requested
that the dismissal be with prejudice, since there had been two
adjudicatory hearings without either an adjudication or a
disposition in over a year since the first permanent custody
action was initiated.
According to a transcript made of the November 30, 1993
hearing by appellant's counsel and incorporated in appellant's
motion for relief from judgment in the court of appeals, the
juvenile court allowed CSS to file a third complaint, case No.
9315631, and another motion for emergency temporary custody of
the child. The complaint, verified by CSS employee and
licensed social worker Shirley Lee, stated that appellant (1)
had not provided any care or support to the child, (2) was
unable to care for the child because of his alcoholism,
substance abuse, inability to provide necessary economic
resources, and violent disposition, (3) had two prior children
as a result of his common-law marriage to Julie but was not
seeking custody of either of those children, (4) had an
unstable home environment, and (5) was an unfit or unsuitable
parent. CSS's motion for emergency temporary custody of Mary
Beth claimed that neither appellant nor Julie was presently
able to care for the child.
The juvenile court, in the presence of appellant's
counsel, stated that it had heard testimony by appellant that
he could not take care of the child at that time and that it
was unaware of appellant's whereabouts since he had left the
courthouse. The court stated that it would dismiss the
complaint in case No. 9311338 without prejudice, and grant the
motion for emergency temporary custody in case No. 9315631,
allowing the new case to proceed. Appellant's counsel did not
object to the court's analysis of appellant's testimony or
request a hearing on the emergency temporary custody motion
during the November 30, 1993 proceeding. Instead, he left the

courtroom.
On December 9, 1993, appellant filed a petition for a writ
of habeas corpus in the Cuyahoga County Court of Appeals,
naming CSS and Julie Howard as respondents. Appellant claimed
that he was entitled to immediate possession and legal custody
of Mary Beth. On December 15, 1993, the court of appeals
dismissed the petition sua sponte on the basis that appellant
possessed an adequate remedy by appeal to challenge the
juvenile court's award of preadjudicatory emergency temporary
custody of Mary Beth to CSS. That judgment was appealed to
this court as case No. 94-11. On January 6, 1993, the court of
appeals overruled appellant's Civ.R. 60(B)(5) motion for relief
from judgment because it believed it lacked jurisdiction to
rule on the merits of the motion while an appeal was pending in
this court from the judgment sought to be vacated. The latter
judgment was appealed to this court in case No. 94-153. This
court granted appellant's motion to consolidate the appeals.
The cause is now before this court upon the consolidated
appeals as of right.

Michael D. Slodov, for appellant.
Albert E. Fowerbaugh, for appellee Catholic Social
Services of Cuyahoga County, Inc.

Per Curiam. In his first proposition of law, appellant
asserts that the court of appeals erred in denying his petition
for a writ of habeas corpus. CSS contends that appellant was
not entitled to habeas corpus relief because the juvenile court
possessed jurisdiction to issue the preadjudicatory emergency
temporary custody orders. CSS relies upon R.C. 2725.05, which
provides: "If it appears that a person alleged to be
restrained of his liberty is in the custody of an officer under
process issued by a court or magistrate, or by virtue of the
judgment or order of a court of record, and that the court or
magistrate had jurisdiction to issue the process, render the
judgment, or make the order, the writ of habeas corpus shall
not be allowed." Pursuant to R.C. 2725.05, this court has
generally limited issuance of the writ in order to preclude
nonjurisdictional challenges. Flora v. Rogers (1993), 67 Ohio
St.3d 441, 619 N.E.2d 690; State ex rel. Dotson v. Rogers
(1993), 66 Ohio St.3d 25, 607 N.E.2d 453. In addition to such
criminal cases, we have applied R.C. 2725.05 in habeas corpus
cases that arose in the civil context as well. See, e.g., In
re Frinzl (1949), 152 Ohio St. 164, 39 O.O. 456, 87 N.E.2d 583,
paragraph three of the syllabus, applying the similarly worded
statutory predecessor to R.C. 2725.05 to a child custody case;
see, also, Children's Home of Marion Cty. v. Fetter (1914), 90
Ohio St. 110, 106 N.E. 761; In re Gatti (Oct. 16, 1990), Seneca
App. No. 13-90-16, unreported 1990 WL 157235, Morton v. Ewers
(Oct. 15, 1982), Monroe App. No. 567, unreported 1982 Wl 6200.
"A writ of habeas corpus will lie in child custody matters if
the custody order in dispute was entered by a court without
jurisdiction, thus being void ab initio." Beard v. Williams
Cty. Dept. of Social Serv. (1984), 12 Ohio St.3d 40, 41, 12 OBR
35, 36, 465 N.E.2d 397, 399; cf. Reynolds v. Ross Cty.
Children's Serv. Agency (1983), 5 Ohio St.3d 27, 5 OBR 87, 448
N.E.2d 816.

In the case at bar, the juvenile court possessed basic
statutory jurisdiction pursuant to R.C. 2151.23(A)(1) to
consider the merits of the three filed complaints because they
all alleged that Mary Beth was a dependent child. Furthermore,
the juvenile court's dismissals of the first two complaints
were pursuant to R.C. 2151.28(B)(3) ("in no case shall the
dispositional hearing be held later than ninety days after the
date on which the complaint was filed") and R.C. 2151.35(B)(1)
("dispositional hearing shall not be held more than ninety days
after the date on which the complaint in the case was filed").
R.C. 2151.35(B)(1) further provides that "[i]f the
dispositional hearing is not held within the period of time
required by this division, the court, on its own motion or the
motion of any party or the guardian ad litem of the child,
shall dismiss the complaint without prejudice." The juvenile
court fully complied with R.C. 2151.35(B)(1) by dismissing the
first two dependency complaints when dispositional hearings
were not held within the specified ninety-day period. However,
since R.C. 2151.35(B)(1) expressly states that such dismissals
are without prejudice, it was not deprived of jurisdiction to
consider subsequently filed complaints. Based upon the
foregoing, it is apparent that the juvenile court possessed
jurisdiction to consider the third dependency complaint.
Nevertheless, as we recently held in State ex rel. Pirman
v. Money (1994), 69 Ohio St.3d 591, N.E.2d , this
conclusion does not end our inquiry into the propriety of
habeas corpus, since R.C. 2725.05 should not be construed as
controlling the exercise of original jurisdiction in habeas
corpus constitutionally granted to courts of appeals and this
court. Stahl v. Shoemaker (1977), 50 Ohio St.2d 351, 354, 4
O.O.3d 485, 487, 364 N.E.2d 286, 288. Therefore, in certain
extraordinary circumstances where there is an unlawful
restraint of a person's liberty, habeas corpus will lie
notwithstanding the fact that only nonjurisdictional issues are
involved, so long as there is no adequate legal remedy, e.g.,
appeal or postconviction relief. State ex rel. Pirman, supra;
see, also, In re Fisher (1974), 39 Ohio St.2d 71, 68 O.O.2d 43,
313 N.E.2d 851 (habeas corpus will lie to determine whether a
person was not afforded counsel and thereby denied due process
in noncriminal civil commitment proceedings); and In re Brown
(1973), 35 Ohio St.2d 9, 64 O.O.2d 5, 298 N.E.2d 579 (full
hearing required on habeas corpus claim which alleged unlawful
deprivation of custody because of denial of counsel in a
neglect proceeding). Cf. McGinty v. Jewish Children's Bur.
(1989), 46 Ohio St.3d 159, 161, 545 N.E.2d 1272, 1274
("parental consent to an adoption order is the jurisdictional
prerequisite which, if absent, allows the order to be attacked
as void in a habeas corpus proceeding").
In the instant case, it is evident that the due process
violations alleged by appellant, i.e., the juvenile court's
repeated failure to comply with the procedural and substantive
requirements set forth in R.C. 2151.33 and 2151.419 regarding
emergency temporary custody orders, were not of sufficient
merit to require the extraordinary remedy of habeas corpus.
Moreover, R.C. 2151.419 applies only to a child who has been
removed from his home. Here, the complaint alleges not that
CSS removed the child from any home but that it had the child

voluntarily placed with it by Julie Howard, who misrepresented
to CSS that appellant was not the child's biological father.
Appellant's own transcript of the November 30, 1993 proceedings
indicates that the juvenile court, in granting the last motion
of CSS for emergency temporary custody, stated that appellant
had testified that he was then unable to care for Mary Beth and
that Julie Howard had permanently surrendered the child.
Although appellant now claims that the juvenile court erred in
relying on the evidence admitted in case No. 9311338 to resolve
the emergency temporary custody motion in case No. 9315631, his
counsel did not timely object during the hearing before the
juvenile court.
Further, the verified complaint in case No. 9315631
alleged that appellant was an unfit parent because of, inter
alia, alcoholism and substance abuse. As CSS notes, the
juvenile court merely acted in the best interests of the child
when it granted its emergency temporary custody order where the
verified complaint indicated that neither parent was then able
to care for her. Under these circumstances, any alleged
failure by the juvenile court to fully comply with the statutes
did not violate appellant's constitutional right to due process.
Finally, as the court of appeals held, habeas corpus is an
extraordinary remedy and as with every extraordinary remedy is
not available as a means of relief where there is an adequate
remedy in the ordinary course of law. In re Davis (1985), 18
Ohio St.3d 226, 227, 18 OBR 285, 286, 480 N.E.2d 775, 776.
Therefore, habeas corpus may not be used as a substitute for
appeal. McNeal v. Miami Cty. Children's Serv. Bd. (1992), 64
Ohio St.3d 208, 210, 594 N.E.2d 587, 588. Habeas corpus relief
is the exception to the general rule in child custody actions.
Id.; cf. Marich v. Knox Cty. Dept. of Human Serv. (1989), 45
Ohio St.3d 163, 543 N.E.2d 776 (appeal not speedy enough where
undue influence invalidated a permanent surrender agreement
with a natural parent).
While appellant implicitly claims a jurisdictional defect
by the juvenile court's continued grant of emergency temporary
custody to CSS, a party challenging the court's jurisdiction
generally has an adequate remedy at law via appeal from the
court's holding that it has jurisdiction absent a patent and
unambiguous lack of jurisdiction. State ex rel. Sanquily v.
Lucas Cty. Court of Common Pleas (1991), 60 Ohio St.3d 78, 80,
573 N.E.2d 606, 608. As noted previously, appellant's
jurisdictional claim is meritless. Moreover, as to his
constitutional due process claim, although appellant is correct
that he possesses no immediate appeal from any preadjudicatory
emergency temporary custody order, see Kurtz & Giannelli, Ohio
Juvenile Law (2 Ed.1989) 112, Section T 7.07; cf. In re Murray
(1990), 52 Ohio St.3d 155, 156, 556 N.E.2d 1169, 1170-1171, the
absence of such remedy does not per se mean that an appeal
following a determination of the permanent custody complaint is
not an adequate remedy. Cf., e.g., Wenzel v. Enright (1993),
68 Ohio St.3d 63, 66, 623 N.E.2d 69, 72 (appeal following
conviction and sentence an adequate remedy to address error in
pretrial overruling of dismissal motion based on double
jeopardy), and State ex rel. Keenan v. Calabrese (1994), 69
Ohio St.3d 176, 631 N.E.2d 119 (appeal following conviction and
sentence an adequate remedy to address pretrial grant of motion

to disqualify counsel).
There may be certain extreme circumstances in which habeas
corpus would lie where either one or a series of improperly
entered emergency temporary custody orders is used solely to
deprive natural parents of their paramount constitutional right
to the care, custody, and management of their children, see,
e.g., Santosky v. Kramer (1982), 455 U.S. 745, 753, 102 S.Ct.
1388, 1394, 71 L.Ed.2d 599, 606, and In re Murray (1990), 52
Ohio St.3d 155, 157, 556 N.E.2d 1169, 1171, without any
findings as to parental suitability and the best interests of
the children, but such extreme circumstances are not present in
the case at bar.1 The court of appeals thus properly denied
appellant's petition for a writ of habeas corpus, and
appellant's first proposition of law is overruled.
Appellant's second proposition of law asserts that the
court of appeals erred in denying his Civ.R. 60(B)(5) motion
for relief from judgment. The court of appeals overruled
appellant's motion based on its rationale that appellant's
pending appeal in this court from the court of appeals'
judgment denying his petition for a writ of habeas corpus
divested it of jurisdiction. When a case has been appealed,
the trial court retains all jurisdiction not inconsistent with
the reviewing court's jurisdiction to reverse, modify, or
affirm the judgment. Yee v. Erie Cty. Sheriff's Dept. (1990),
51 Ohio St.3d 43, 44, 553 N.E.2d 1354, 1355; In re Kurtzhalz
(1943), 141 Ohio St. 432, 25 O.O. 574, 48 N.E.2d 657, paragraph
two of the syllabus. The issue presented by the court of
appeals' decision is whether a trial court retains jurisdiction
to consider a Civ.R. 60(B) motion for relief from judgment when
an appeal from the same judgment is pending.
Although some Ohio appellate courts have adopted the view
that trial courts can consider the merits of Civ.R. 60(B)
motions without interfering with reviewing courts' appellate
jursidction, see, e.g., Bank One, Columbus, N.A. v. O'Brien
(Dec. 31, 1991), Franklin App. Nos. 91AP-165 and 91AP-440,
unreported, at 23; Day v MacDonald (1990), 67 Ohio App.3d 240,
586 N.E.2d 1135; see, also, Whiteside, Ohio Appellate Practice
(1993) 20-21, T 1.09(C), supporting the foregoing view, we have
expressly held that an appeal divests trial courts of
jurisdiction to consider Civ.R. 60(B) motions for relief from
judgment. State ex rel. East Mfg. Corp. v. Ohio Civ. Rights
Comm. (1992), 63 Ohio St.3d 179, 181, 586 N.E.2d 105, 107,
citing Klinginsmith v. Felix (1989), 62 Ohio App.3d 147, 574
N.E.2d 1142, with approval. Jurisdiction may be conferred on
the trial court only through an order by the reviewing court
remanding the matter for consideration of the Civ.R. 60(B)
motion. Id. at 151, 574 N.E.2d at 1144; Majnaric v. Majnaric
(1975), 46 Ohio App.2d 157, 75 O.O.2d 250, 347 N.E.2d 552.
Therefore, the court of appeals correctly held that it lacked
jurisdiction to consider the merits of appellant's Civ.R. 60(B)
motion.
Accordingly, for the foregoing reasons, the judgments of
the court of appeals are affirmed.

Judgments affirmed.
Moyer, C.J., A.W. Sweeney, Douglas, Wright, Resnick and
F.E. Sweeney, JJ., concur.

Pfeifer, J., concurs in judgment.

FOOTNOTE
1 In Linger v. Weiss (1979), 57 Ohio St.2d 97, 11 O.O.3d 281,
386 N.E.2d 1354, this court held that a three-year delay
following an adjudicatory hearing did not require habeas corpus
relief. However, Linger was decided prior to the amendment of
the statutory time requirements in R.C. 2151.28(B)(3) and
2151.35(B)(1) and is of dubious continued vitality in abuse,
neglect, and dependency proceedings. 2 Carr & Young,
Anderson's Ohio Family Law (2 Ed.1989) 321, Section 20.13;
Kurtz & Giannelli, supra, at 111, Section T 7.07.
Pfeifer, J., concurring in judgment. While I agree
with the result reached by the majority, the opinion goes too
far by unnecessarily discussing other scenarios where habeas
corpus relief is not warranted. This extraneous analysis may
affect future cases that are unimagined by the court today.