Lee v. Weir (Slip Opinion) ( 2016 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as Lee
v. Weir, Slip Opinion No. 2016-Ohio-8104.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2016-OHIO-8104
LEE, APPELLANT, v. WEIR, DIR., APPELLEE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Lee v. Weir, Slip Opinion No. 2016-Ohio-8104.]
Habeas corpus—Appellant had alternative remedies at law to challenge juvenile
court’s grant of permanent custody of minor child to county agency—Court
of appeals’ judgment denying petition affirmed.
(No. 2015-1536—Submitted August 16, 2016—Decided December 14, 2016.)
APPEAL from the Court of Appeals for Hamilton County, No. C-150417.
________________
Per Curiam.
{¶ 1} Appellant, Ricardo G. Lee, appeals from the judgment of the First
District Court of Appeals denying his petition for a writ of habeas corpus. Because
Lee had alternative remedies at law to challenge the juvenile court’s grant of
permanent custody of minor child, R.L., we affirm the court of appeals’ judgment.
SUPREME COURT OF OHIO
Facts
{¶ 2} On July 6, 2015, Lee filed his second petition for a writ of habeas
corpus in the First District Court of Appeals, alleging that appellee, Hamilton
County Job and Family Services (“Family Services”) Director Moira Weir, is
unlawfully restraining his biological minor son, R.L. (d.o.b. 3/14/2012), pursuant
to a juvenile court order.
{¶ 3} The petition asserts that on December 26, 2012, Family Services filed
a complaint in the Hamilton County Juvenile Court alleging that R.L. was
dependent and seeking emergency removal and temporary custody. The court,
through a magistrate judge, held a hearing on the emergency request on December
28, 2012.
{¶ 4} After the hearing, the magistrate issued an order stating that Lee is the
“alleged father of [R.L.]” and that the mother’s husband, Alisher
Shermukhamedov, is the “legal father by law of [R.L.].” As to Lee, the magistrate’s
order states that “Ricardo has a turbulent relationship with [R.L.’s mother]. Mother
was the victim. Ricardo Lee has been violent and abusive toward mother. He has
been charged multiple times with aggravated menacing and domestic violence. He
had a stay away order and was convicted of Menacing. He is currently on
probation.” The magistrate concluded that the evidence presented at the hearing
demonstrated that R.L. was in “imminent risk of harm,” that the child was currently
missing, and that the child’s mother was a “flight risk.” Based on its determination
that “[t]he child’s continued residence in or return to the home would be contrary
to the child’s best interest and welfare,” the magistrate judge granted temporary
custody of R.L. to Family Services.
{¶ 5} More than two years later, in April 2014, the juvenile court granted
permanent custody of R.L. to Family Services.
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January Term, 2016
{¶ 6} Weir filed both a motion to dismiss Lee’s petition and an answer,
arguing that Lee’s petition was successive and barred by res judicata and that Lee
had—and had used—alternative remedies at law to challenge the custody order.
{¶ 7} One week later, the court of appeals issued a one-page judgment entry
granting Weir’s motion to dismiss and noting that Lee’s petition “demonstrated no
grounds for relief.”
{¶ 8} Lee timely appealed to this court and on August 29, 2016, filed a
motion to expedite.
Analysis
{¶ 9} In a child-custody action, a writ of habeas corpus will be granted only
if the petitioner establishes that “(1) the child is being unlawfully detained, and (2)
the petitioner has the superior legal right to custody of the child.” Holloway v.
Clermont Cty. Dept. of Human Servs., 80 Ohio St. 3d 128, 130, 684 N.E.2d 1217
(1997). In this context, “[h]abeas corpus relief is the exception rather than the
general rule.” Id. Further, a petitioner is not entitled to a writ of habeas corpus in
a child-custody action “ ‘when there is an adequate remedy in the ordinary course
of law.’ ” In re G.T.B., 128 Ohio St. 3d 502, 2011-Ohio-1789, 947 N.E.2d 166,
¶ 8, quoting In re Complaint for Writ of Habeas Corpus for Goeller, 103 Ohio St. 3d
427, 2004-Ohio-5579, 816 N.E.2d 594, ¶ 6.
{¶ 10} Lee had the right to challenge the magistrate’s order granting
temporary custody by filing a motion to set aside the magistrate’s order. Juv.R.
40(D)(2)(b). Moreover, Lee had the right to challenge to the magistrate’s decision
“in any subsequent hearing in the case, and appeal any adverse judgment by the
juvenile court.” Rammage v. Saros, 97 Ohio St. 3d 430, 2002-Ohio-6669, 780
N.E.2d 278, ¶ 10. Indeed, Lee, represented by counsel, appealed the juvenile
court’s order granting permanent custody to Family Services. The availability of
alternative remedies in the ordinary course of the law, even if those remedies were
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SUPREME COURT OF OHIO
not sought or were unsuccessful, precludes a writ of habeas corpus. State ex rel.
O’Neal v. Bunting, 140 Ohio St. 3d 339, 2014-Ohio-4037, 18 N.E.3d 430, ¶ 14-15.
{¶ 11} Lee had—and has used—alternative remedies at law to challenge the
juvenile’s court’s judgment granting permanent custody of R.L. to Family Services.
Therefore, we affirm the judgment of the First District Court of Appeals. We also
deny Lee’s August 29, 2016 motion to expedite as moot.
Judgment affirmed
and motion denied.
O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, KENNEDY,
FRENCH, and O’NEILL, JJ., concur.
_________________
Ricardo G. Lee, pro se.
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Christian J.
Schaefer, Assistant Prosecuting Attorney, for appellee.
_________________
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