Holloway v. Clermont Cty. Dept. of Human Serv. - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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[Cite as Holloway v. Clermont Cty. Dept. of Human Serv., 92 Ohio
St.3d 553, 2001-Ohio-1282]

HOLLOWAY, APPELLANT, v. CLERMONT COUNTY DEPARTMENT OF HUMAN
SERVICES ET AL., APPELLEES.
[Cite as Holloway v. Clermont Cty. Dept. of Human Serv. (2001), 92 Ohio St.3d
553.]
Juvenile law -- Custody -- Habeas corpus sought to regain custody of relator's
children -- Dismissal of petition by court of appeals affirmed.
(No. 01-420 -- Submitted July 17, 2001 -- Decided August 15, 2001.)
APPEAL from the Court of Appeals for Clermont County, No. CA2000-11-085.
__________________

Per Curiam. Appellant, Sammye Holloway, is the biological mother of
two minor children, T.J. and John. On June 16, 1993, the Clermont County Court
of Common Pleas, Juvenile Division, granted permanent custody of the children
to appellee Clermont County Department of Human Services ("CCDHS"). In
February 1995, Holloway filed a motion in the juvenile court to set aside the June
1993 award of permanent custody. In August 1995, the juvenile court overruled
Holloway's motion.

On appeal, however, the court of appeals reversed the juvenile court's
judgment because service by publication of CCDHS's motion for permanent
custody on Holloway was defective, i.e., it did not contain her last known address.
The court of appeals further ordered that on remand, the juvenile court set aside
its permanent custody order and "obtain proper service of process upon
[Holloway] before conducting a hearing on the merits."

In 1996, Holloway filed a petition in the court of appeals for a writ of
habeas corpus to regain the custody of her children. In January 1997, the court of
appeals denied the writ, finding that Holloway had an adequate legal remedy
under the court's previous remand order. On appeal, we affirmed the denial of the

SUPREME COURT OF OHIO
writ. Holloway v. Clermont Cty. Dept. of Human Serv. (1997), 80 Ohio St.3d
128, 684 N.E.2d 1217.

In 1999, Holloway filed a second petition for a writ of habeas corpus in
this court, which we dismissed. Holloway v. Clermont Cty. Dept. of Human Serv.
(1999), 86 Ohio St.3d 1487, 716 N.E.2d 720.

In November 2000, Holloway filed a third petition for a writ of habeas
corpus, this time in the Court of Appeals for Clermont County. Holloway named
CCDHS and Patrick and Judy Trader, the custodians of the children, as
respondents. The entirety of her petition contained the following allegations:

"1. The petitioner is the natural mother of T.J. Holloway and John
Holloway, minors.

"2. The petitioner is entitled to the custody of said T.J. Holloway and
John Holloway.

"3. The above-named respondents have confined T.J. Holloway and John
Holloway at said address and are unlawfully restraining their liberty and are
unlawfully depriving petitioner of the custody to which she is entitled.

"4. The underlying order has been determined to be void [see attached];
and the Court has no jurisdiction to issue the order depriving the petitioner of
custody."

Holloway attached to the petition copies of the August 1995 juvenile court
judgment overruling Holloway's motion to set aside the permanent custody order,
the 1996 opinion of the court of appeals reversing the 1995 juvenile court
judgment and remanding the cause to that court, the January 1997 court of appeals
judgment denying Holloway's first petition for a writ of habeas corpus, and our
October 1997 judgment entry affirming the judgment of the court of appeals.
Holloway also filed a motion for a stay of a November 3, 2000 probate court
proceeding regarding the custody of the children.
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January Term, 2001

Appellees filed a motion to dismiss the petition, claiming that res judicata
barred Holloway's successive filing of habeas corpus petitions.

In January 2001, the court of appeals granted appellees' motion and
dismissed the petition. Although the appellate court determined that the
underlying permanent custody award was void because Holloway was not
properly served, it declined to speculate what effect this had on a 1994 adoption
concerning the children and ruled that Holloway had an adequate legal remedy by
filing a Civ.R. 60(B) motion with the probate court to vacate the adoption.

In her appeal of right, Holloway asserts that the court of appeals erred in
dismissing her habeas corpus petition. For the following reasons, we affirm the
judgment of the court of appeals.

In order to avoid dismissal, Holloway was required to state with
particularity the extraordinary circumstances entitling her to a writ of habeas
corpus. Chari v. Vore (2001), 91 Ohio St.3d 323, 328, 744 N.E.2d 763, 769.
"Unsupported conclusions contained in a habeas corpus petition are not
considered admitted and are insufficient to withstand dismissal." Id., citing State
ex rel. Carrion v. Ohio Adult Parole Auth. (1998), 80 Ohio St.3d 637, 638, 687
N.E.2d 759, 760.

Holloway's petition contains unsupported conclusions, i.e., she is entitled
to custody and the trial court lacks jurisdiction to deprive her of custody, rather
than specific facts supporting her claim for extraordinary relief.
Moreover,
res judicata bars Holloway from filing successive habeas
corpus petitions. See State ex rel. Childs v. Lazaroff (2001), 90 Ohio St.3d 519,
520-521, 739 N.E.2d 802, 803, and cases cited therein. Although she claims that
res judicata does not bar her third petition because it involves facts and
circumstances that arose following her previous habeas corpus cases, she did not
allege these additional facts and circumstances with the requisite particularity in
her habeas corpus petition. In fact, the allegations and attachments to her petition
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SUPREME COURT OF OHIO
merely restated the claims of her previous habeas corpus actions. She did not
incorporate the facts and allegations contained in her other filings, e.g., her
motion to stay, in her petition, nor did she seek to amend her petition to include
these facts.

Based on the foregoing, we affirm the judgment of the court of appeals
dismissing Holloway's habeas corpus petition. In so holding, we note that the
underlying dispute has engendered a lengthy history of litigation in both state and
federal courts. See, e.g., Holloway v. Brush (C.A.6, 2000), 220 F.3d 767, 782-
784 (Clay, J., dissenting). We agree with the Court of Appeals for Clermont
County that the "best interest[s] of all involved, especially the children, will be
served if this matter is ended as quickly as possible" and join that court in urging
the parties to "use their best efforts to put an end to this matter with all reasonable
speed."
Judgment affirmed.

MOYER, C.J., RESNICK, F.E. SWEENEY, PFEIFER, COOK and LUNDBERG
STRATTON, JJ., concur.

DOUGLAS, J., dissents.
__________________

Donna S. Rose, for appellant.

Donald W. White, Clermont County Prosecuting Attorney, and Elizabeth
Mason, Assistant Prosecuting Attorney, for appellee Clermont County
Department of Human Services.
__________________
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