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[Cite as In re Bailey, 98 Ohio St.3d 309, 2003-Ohio-859.]


IN RE BAILEY; BAILEY ET AL., APPELLANTS; HEMPEN, APPELLEE.
[Cite as In re Bailey, 98 Ohio St.3d 309, 2003-Ohio-859.]
Habeas corpus sought to compel the return of a minor child to custody of
parents -- Court of appeals' dismissal of petition affirmed.
(No. 2002-1691 -- Submitted January 21, 2003 -- Decided March 12, 2003.)
APPEAL from the Court of Appeals for Hamilton County, No. C-020401.
__________________

Per Curiam.
{1} Appellants, Gordon and Linda Bailey, are the biological parents of
Danielle N. Bailey, a minor child born on June 19, 1992. In November 1995,
appellants voluntarily placed Danielle with appellee, Alice Hempen, a
nonrelative. In 1996, Gordon Bailey, Linda Bailey, and Hempen filed petitions in
the Hamilton County Court of Common Pleas, Juvenile Division, for custody of
Danielle. Gordon Bailey withdrew his petition and agreed that custody of
Danielle should be awarded to Hempen. The juvenile court found that Gordon
and Linda Bailey were "unable, unfit, and unsuitable to parent at this time and in
the foreseeable future due to their physical and emotional conditions." The
juvenile court granted custody of Danielle to Hempen and ordered limited
visitation for the Baileys.
{2} In 1997, the juvenile court granted Hempen's emergency motion to
suspend visitation between the Baileys and Danielle. The court found that
inappropriate sexual activity had occurred between the Baileys and Danielle
during visits. On appeal, the court of appeals affirmed the judgment of the
juvenile court. Hempen v. Bailey (May 2, 2001), Hamilton App. No. C-990528,
2001 WL 477069.

SUPREME COURT OF OHIO
{3} After independently supervised visitation was subsequently
instituted, the Baileys gave alcohol to Danielle on two separate occasions, both
when she was just eight years old. The juvenile court then granted another
emergency motion by Hempen to suspend visitation. On appeal, the court of
appeals affirmed that portion of the juvenile court's judgment granting Hempen's
emergency motion. In re Bailey, Hamilton App. Nos. C-010015 and C-010186,
2002-Ohio-3801, 2002 WL 1724030.
{4} In 2001, the juvenile court again suspended visitation between the
Baileys and Danielle, this time because of her psychologist's opinion that
Danielle experienced emotional conflict due to visitation.
{5} On June 17, 2002, the Baileys filed a petition in the Court of
Appeals for Hamilton County for a writ of habeas corpus to compel Hempen to
return Danielle to their custody. The Baileys alleged that Danielle has been held
against her will by Hempen since November 1996, that they have a fundamental
right to custody of Danielle, that they have never been accused or convicted of
any charge of abuse or neglect, that the juvenile court's suspension of visitation
was a termination of their rights, that they are being denied due process of law,
and that they have no other plain, adequate, or speedy remedy available. Hempen
and Danielle's guardian ad litem filed a motion to dismiss the petition.
{6} On August 23, 2002, the court of appeals granted the motion and
dismissed the petition.
{7} This cause is now before the court upon the Baileys' appeal as of
right.
{8} The Baileys assert that the court of appeals erred in dismissing
their habeas corpus petition. For the following reasons, we affirm the judgment
of the court of appeals.
{9} In order to withstand dismissal, the Baileys were required to allege
with particularity the extraordinary circumstances entitling them to the requested
2

January Term, 2003
extraordinary relief in habeas corpus. Holloway v. Clermont Cty. Dept. of Human
Serv. (2001), 92 Ohio St.3d 553, 555, 751 N.E.2d 1055. " `Unsupported
conclusions contained in a habeas corpus petition are not considered admitted and
are insufficient to withstand dismissal.' " Id., quoting Chari v. Vore (2001), 91
Ohio St.3d 323, 328, 744 N.E.2d 763.
{10} The Baileys' petition contained unsupported conclusions, e.g., that
they had been denied due process and that they had no adequate alternative
remedy at law available, rather than specific facts supporting their claim for the
writ.
{11} Moreover, "[i]n order to prevail on a petition for a writ of habeas
corpus in a child custody case, the petitioner must establish that (1) the child is
being unlawfully detained, and (2) the petitioner has the superior legal right to
custody of the child." State ex rel. Bruggeman v. Auglaize Cty. Court of Common
Pleas (1999), 87 Ohio St.3d 257, 719 N.E.2d 543.
{12} The Baileys' own petition and its various attachments do not
support any allegation of unlawful detention. In fact, the attachments contradict
the Baileys' allegations. Despite the Baileys' claims, Gordon initially agreed to
Hempen's custody of Danielle in November 1996. Also, the award of custody
was based on evidence of the Baileys' unfitness and unsuitability as parents.
Subsequent suspensions of visitation were based on the Baileys' inappropriate
sexual activity with Danielle and providing alcohol to her. Consequently, their
own petition demonstrates that an award of custody would not be in the best
interests of the child. Holloway v. Clermont Cty. Dept. of Human Serv. (1997), 80
Ohio St.3d 128, 131, 684 N.E.2d 1217, quoting Antieau, The Practice of
Extraordinary Remedies (1987) 113, Section 1.50 (" `Whenever child custody is
litigated in a habeas corpus action, the best interest of the child is the prime
consideration' "). Contrary to the Baileys' assertions on appeal, the court of
appeals did not need to make an express best-interest determination in granting
3

SUPREME COURT OF OHIO
the dismissal motion. See, e.g., Civ.R. 52 ("Findings of fact and conclusions of
law required by this rule * * * are unnecessary upon all other motions including
those pursuant to Rule 12 * * *").
{13} Furthermore, dismissal was appropriate because the Baileys did
not comply with the pleading requirements of R.C. 2725.04. Id., 80 Ohio St.3d at
132, 684 N.E.2d 1217. Although the Baileys challenge the propriety of the
juvenile court's 2001 suspension of visitation, they did not attach a copy of this
order to their petition. Moreover, they did not attach a copy of the juvenile
court's adoption of the magistrate's 1996 order awarding custody of Danielle to
Hempen.
{14} Finally, the Baileys' attack on the constitutionality of certain
legislation is better suited to an action in a common pleas court than in an
extraordinary writ action filed here. See State ex rel. Gaydosh v. Twinsburg
(2001), 93 Ohio St.3d 576, 579, 757 N.E.2d 357. The preeminent cases that the
Baileys rely upon to assert unconstitutionality of the statutory scheme, see In the
Interest of S.J.K. (1986), 149 Ill.App.3d 663, 103 Ill.Dec. 75, 500 N.E.2d 1146,
and In re Sanjivini K. v. Usha K. (1979), 47 N.Y.2d 374, 418 N.Y.S.2d 339, 391
N.E.2d 1316, were resolved in the ordinary course of law on appeal rather than by
extraordinary writ. See State ex rel. Nalls v. Russo, 96 Ohio St.3d 410, 2002-
Ohio-4907, 775 N.E.2d 522, 24, quoting State ex rel. Banc One Corp. v. Walker
(1999), 86 Ohio St.3d 169, 172, 712 N.E.2d 742 (" `Significantly, most of the
authorities relied on by appellants were resolved by appeal rather than by
extraordinary writ' ").
{15} Therefore, the court of appeals properly dismissed their petition.
We affirm the judgment of the court of appeals.
Judgment affirmed.

MOYER, C.J., RESNICK, F.E. SWEENEY, PFEIFER, COOK, LUNDBERG
STRATTON and O'CONNOR, JJ., concur.
4

January Term, 2003
__________________

Damon Law Office and Geoffrey P. Damon, for appellants.
__________________
5

 

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