State ex rel. V.K.B. v. Smith

[Cite as State ex rel. V.K.B. v. Smith, 138 Ohio St.3d 84, 2013-Ohio-5477.]
THE STATE EX REL. V.K.B., APPELLANT, v. SMITH, JUDGE, ET AL., APPELLEES.
[Cite as State ex rel. V.K.B. v. Smith, 138 Ohio St.3d 84, 2013-Ohio-5477.]
Prohibition—Domestic relations—Child custody—R.C. 3127.18—Emergency
temporary custody—Custody of child who is resident of Arizona
improperly awarded to Ohio nonparent—Writ granted.
(No. 2013-0636—Submitted August 20, 2013—Decided December 17, 2013.)
APPEAL from the Court of Appeals for Sandusky County, No. S-13-001,
2013-Ohio-799.
____________________
Per Curiam.
{¶ 1} We reverse the judgment of the court of appeals in this appeal from
an original action in prohibition. Relator-appellant, V.K.B., filed this action to
prevent the respondents-appellees, Sandusky County Juvenile Court, Sandusky
County Juvenile Court Judge Bradley J. Smith, and juvenile court magistrate Sara
Jo Sherick, from exercising jurisdiction with respect to the custody of her minor
daughter, J.B.
{¶ 2} V.K.B. had obtained sole custody of the child in a judgment issued
by the juvenile court in 2009. Since then, she had moved to Arizona with her
daughter and had lived there for two years, making it their permanent home. On a
visit to Ohio in 2012, she was called back to Arizona, and she left the child
temporarily with her mother. While V.K.B. was away, the child’s paternal
grandfather filed an ex parte motion in the Sandusky Juvenile Court for
emergency temporary custody of the child, which was granted. V.K.B. filed a
complaint for a writ of prohibition, alleging that the Ohio court lacks jurisdiction
now that she and the child are residents of Arizona.
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{¶ 3} The court of appeals, on a motion to dismiss by respondents for
failure to state a claim upon which relief can be granted, dismissed the case,
finding that the juvenile court had jurisdiction under the Uniform Child Custody
Jurisdiction and Enforcement Act, R.C. Chapter 3127, and that V.K.B. had an
adequate remedy by way of appeal if the court errs in its rulings. V.K.B. appealed
to this court.
{¶ 4} We reverse the judgment of the court of appeals because (1) if
V.K.B. can prove the allegations in her complaint, the juvenile court has failed to
follow the statute that creates its jurisdiction over the child and (2) in this context,
appeal is not an adequate remedy at law because it is neither “complete,” nor
“beneficial,” nor “speedy.” See State ex rel. Kingsley v. State Emp. Relations Bd.,
130 Ohio St.3d 333, 2011-Ohio-5519, 958 N.E.2d 169, ¶ 13 (to be considered
adequate, the remedy must be complete, beneficial, and speedy).
Facts
{¶ 5} V.K.B. is the natural mother of J.B., born on August 15, 2008. She
was named the custodial parent by the Sandusky County Juvenile Court on
December 18, 2009. V.K.B. relocated to Arizona in August 2010 and filed a
notice of relocation with the Ohio court. V.K.B. returned temporarily to Ohio in
August 2012. She was at that time actively seeking employment in Arizona.
When V.K.B. discovered that a permanent job was available in Arizona, she
returned there for an interview on November 9, 2012. She left J.B. in the care of
her mother.
{¶ 6} While she was in Arizona, the paternal grandfather filed an ex
parte motion for custody of J.B., which was granted. After the ex parte order was
granted, V.K.B. filed a “notice of filing of foreign judgment” in Arizona, giving
that court notice of the 2009 Ohio custody order. V.K.B. claims that the
respondents had no jurisdiction to grant the ex parte custody order, as J.B.’s home
state is now Arizona, and the courts of Arizona have jurisdiction.
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{¶ 7} The court of appeals directed respondents to respond to V.K.B.’s
original action for a writ of prohibition, which they did. That court ultimately
found that V.K.B. has not shown that respondents were exercising judicial power
unauthorized by law and dismissed the complaint for failure to state a claim.
V.K.B. has appealed.
Analysis
Oral argument
{¶ 8} V.K.B. has moved for oral argument. We have discretion to grant
oral argument in direct appeals under S.Ct.Prac.R. 17.02. In exercising that
discretion, we consider “whether the case involves a matter of great public
importance, complex issues of law or fact, a substantial constitutional issue, or a
conflict among courts of appeals.” State ex rel. Davis v. Pub. Emps. Retirement
Bd., 111 Ohio St.3d 118, 2006-Ohio-5339, 855 N.E.2d 444, ¶ 15, citing State ex
rel. United Auto., Aerospace & Agricultural Implement Workers of Am. v. Ohio
Bur. of Workers’ Comp., 108 Ohio St.3d 432, 2006-Ohio-1327, 844 N.E.2d 335,
¶ 25–26. Here, V.K.B. does not present issues complex enough to require oral
argument and does not even assert any reason for oral argument. We therefore
deny the motion.
Prohibition
{¶ 9} To be entitled to the requested writ of prohibition, V.K.B. must
establish that (1) respondents are about to or have exercised judicial power, (2)
the exercise of that power is unauthorized by law, and (3) denying the writ would
result in injury for which no other adequate remedy exists in the ordinary course
of law, State ex rel. Bell v. Pfeiffer, 131 Ohio St.3d 114, 2012-Ohio-54, 961
N.E.2d 181, ¶ 18 and 23; State ex rel. Miller v. Warren Cty. Bd. of Elections, 130
Ohio St.3d 24, 2011-Ohio-4623, 955 N.E.2d 379, ¶ 12. When the lack of
jurisdiction is “patent and unambiguous,” the lack of an adequate remedy is
considered established, as the unavailability of alternate remedies is immaterial in
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such a case. Chesapeake Exploration, L.L.C. v. Oil & Gas Comm., 135 Ohio
St.3d 204, 2013-Ohio-224, 985 N.E.2d 480, ¶ 11.
{¶ 10} When considering a motion to dismiss for failure to state a claim
upon which relief can be granted, the court must presume all factual allegations
contained in the complaint to be true and must make all reasonable inferences in
favor of the nonmoving party. Perez v. Cleveland, 66 Ohio St.3d 397, 399, 613
N.E.2d 199 (1993); Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192, 532
N.E.2d 753 (1989); Phung v. Waste Mgt., Inc., 23 Ohio St.3d 100, 102, 491
N.E.2d 1114 (1986). “[A]s long as there is a set of facts, consistent with the
plaintiff’s complaint, which would allow the plaintiff to recover, the court may
not grant a defendant’s motion to dismiss.” York v. Ohio State Hwy. Patrol, 60
Ohio St.3d 143, 145, 573 N.E.2d 1063 (1991).
{¶ 11} The question here is whether the court of appeals properly
dismissed V.K.B.’s complaint for a writ of prohibition, or whether there is a set of
facts consistent with the complaint that would entitle her to the requested relief.
The juvenile court lacks jurisdiction
{¶ 12} The complaint clearly alleges that the respondents have exercised
and will continue to exercise judicial power. The question is whether that exercise
is authorized by law and whether denying the writ would result in an injury for
which no other adequate remedy exists.
{¶ 13} V.K.B. asserts that the respondents lack jurisdiction to proceed
because jurisdiction over J.B. passed to Arizona when J.B. became a resident of
that state. The juvenile court purportedly exercised temporary emergency
jurisdiction under R.C. 3127.18. That statute provides, first, that jurisdiction
comes exclusively from the statute:
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(A) A court of this state has temporary emergency
jurisdiction if a child is present in this state and either of the
following applies:
(1) The child has been abandoned.
(2) It is necessary in an emergency to protect the child
because the child, or a sibling or parent of the child, is subjected to
or threatened with mistreatment or abuse.
(Emphasis added.) Thus, the juvenile court has emergency and temporary
jurisdiction over a child in Ohio only if it satisfies the requirements of the statute.
One of the requirements of the statute is that if a child-custody proceeding has
been started in another state, the court must immediately communicate with the
court of the other state to resolve the emergency, protect the safety of the parties
and the child, and set a period for the duration of the temporary order. R.C.
3127.18(D) mandates that when
[a] court of this state * * * has been asked to make a child custody
determination under this section, upon being informed that a child
custody proceeding has been commenced in or a child custody
determination has been made by a court of a state having
jurisdiction under sections 3127.15 to 3127.17 of the Revised Code
or a similar statute of another state, [the Ohio court] shall
immediately communicate with the other court.
(Emphasis added.) The situation before us today is precisely the situation the
Uniform Act contemplates.
{¶ 14} R.C. 3127.18(D) further provides:
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A court of this state that is exercising jurisdiction pursuant to
sections 3127.15 to 3127.17 of the Revised Code, upon being
informed that a child custody proceeding has been commenced in
or a child custody determination has been made by a court of
another state under a statute similar to this section, shall
immediately communicate with the court of that state to resolve the
emergency, protect the safety of the parties and the child, and
determine a period for the duration of the temporary order.
Moreover, when there has been a prior child-custody determination entitled to be
enforced in Ohio, any emergency order under the statute is temporary and must
specify the amount of time the court deems adequate to obtain an order from the
other state:
If there is a previous child custody determination that is entitled to
be enforced under this chapter, or a child custody proceeding has
been commenced in a court of a state having jurisdiction under
sections 3127.15 to 3127.17 of the Revised Code or a similar
statute of another state, any order issued by a court of this state
under this section must specify in the order a period that the court
considers adequate to allow the person seeking an order to obtain
an order from the state having jurisdiction under sections 3127.15
to 3127.17 of the Revised Code or a similar statute of another state.
The order issued in this state remains in effect until an order is
obtained from the other state within the period specified or until
the period expires.
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R.C. 3127.18(C). The complaint alleges that V.K.B. has commenced a child-
custody-enforcement action in Arizona by filing the Ohio judgment there. The
juvenile court in Ohio, although it is aware of the Arizona filing, has apparently
not communicated with the Arizona court to resolve the emergency, nor has it
determined a period for the duration of the temporary order; the order states only
that the grandfather is granted immediate custody “until a full and fair hearing
may be held.” That was a year ago.
{¶ 15} V.K.B. filed a notice of relocation notifying the Ohio court of her
move to Arizona in June 2010. The original Ohio judgment of custody was filed
in Arizona in December 2012. The Ohio juvenile court does not mention the
notice of relocation filed with that court in June 2010, nor is there any evidence
that it made contact with the Arizona court. There is also no evidence that the
court has since determined a period for the duration of the temporary order to
allow the Arizona court to rule.
{¶ 16} Moreover, the court has granted “temporary” custody to a
grandparent, who, unlike a parent, does not have fundamental rights in the care
and custody of a child. “Within the framework of the statutes, the overriding
principle in custody cases between a parent and nonparent is that natural parents
have a fundamental liberty interest in the care, custody, and management of their
children.” In re Hockstok, 98 Ohio St.3d 238, 2002-Ohio-7208, 781 N.E.2d 971,
¶ 16, citing Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d
599 (1982), and In re Murray, 52 Ohio St.3d 155, 157, 556 N.E.2d 1169 (1990).
That “temporary” custody has now lasted over one year.
{¶ 17} Thus, if V.K.B. can prove the allegations in her complaint, the
juvenile court has not satisfied the requirements of the statute and therefore does
not have jurisdiction over the parties, the child, or the case.
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{¶ 18} Moreover, the lack of jurisdiction here need not be “patent and
unambiguous.” V.K.B.’s argument that appeal in this case does not amount to an
“adequate remedy” for purposes of prohibition has merit.
{¶ 19} Ohio law has consistently applied the principle that appeal is an
adequate remedy in cases involving child custody. Ross v. Saros, 99 Ohio St.3d
412, 2003-Ohio-4128, 792 N.E.2d 1126; State ex rel. Mosier v. Fornof, 126 Ohio
St.3d 47, 2010-Ohio-2516, 930 N.E.2d 305. However, that precedent does not
directly apply here.
{¶ 20} In Ross, the mother filed for a writ of habeas corpus after her
appeal was unsuccessful. In Mosier, the dispute was between the parents, both of
whom have a fundamental constitutional interest in the care, custody, and
management of their children.
{¶ 21} In the context of this case, appeal is not adequate. Here, the contest
is between a parent and a nonparent. As explained above, natural parents have a
fundamental constitutional interest in the care, custody, and management of their
children that grandparents do not. Harrold v. Collier, 107 Ohio St.3d 44, 2005-
Ohio-5334, 836 N.E.2d 1165, ¶ 40.
{¶ 22} In addition, in this case, the juvenile court has awarded “temporary
custody” but has neither communicated with the Arizona court nor specified the
duration of the temporary order to allow the Arizona court to rule. Thus, there is
no guarantee that the court will not simply sit on this “temporary” order
indefinitely.
{¶ 23} An “adequate remedy” in child-custody cases is unlike that in other
types of cases, because for a child and her parent, time is the most precious of
commodities. If a child is removed from her parent for a year, as has already
occurred in this case, that year can never be replaced. If a writ is not issued and
the case returned to the juvenile court in these circumstances, it may languish for
one or two more years before the court issues an appealable order. The appeal
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can take an additional year or two by the time briefs are prepared and oral
arguments delivered and the judges arrive at a conclusion.
{¶ 24} Thus, even if the juvenile court eventually issues a final order, and
V.K.B. appeals the case only to the court of appeals, it may take five years or
more between the time custody was “temporarily” moved from the child’s mother
to a nonparent and the time the case is resolved. If the case is appealed here, it
may take an additional year or more. Instead of a toddler, J.B. will be seven,
eight, or even nine years old. The formative years she spent away from her
mother can never be recaptured. This problem is particularly acute here, as J.B.
has been diagnosed as autistic.
{¶ 25} Moreover, this principle of urgency in resolving child-custody
cases is already acknowledged by Ohio law. For example, this court’s own rules
require accelerated schedules for briefs, pleadings, and other matters in cases
involving the termination of parental rights and adoption. S.Ct.Prac.R.
7.03(A)(2), 12.09, 15.03(A)(2), 16.02(A)(1), 16.03(A)(1), 16.04(A)(1),
16.05(B)(1)(a), 16.05(C)(1)(a), 16.05(D)(1)(a), 16.05(E)(1)(a), 17.04, and 18.01.
{¶ 26} Under R.C. 2505.02(A)(2), child-custody cases are “special
proceedings,” In re Adams, 115 Ohio St.3d 86, 2007-Ohio-4840, 873 N.E.2d 886,
at ¶ 43, that affect a “substantial right,” In re C.B., 129 Ohio St.3d 231, 2011-
Ohio-2899, 951 N.E.2d 398, ¶ 11 (“a parent does have a substantial right in the
custody of his or her child”); In re Murray, 52 Ohio St.3d 155, 556 N.E.2d 1169;
In re H.F., 120 Ohio St.3d 499, 2008-Ohio-6810, 900 N.E.2d 607.
{¶ 27} This is not to say that appeal is not an adequate remedy in all child-
custody cases. But when, as alleged here, (1) custody has been removed from a
parent who previously had been awarded permanent custody, (2) custody is
awarded to a nonparent in an ex parte proceeding, (3) the juvenile court is not
complying with the requirements of the Uniform Act or other applicable law, and
(4) the juvenile court has issued a “temporary” order with no indication of when a
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hearing or other action might be taken to resolve the case, appeal is not an
“adequate remedy at law” for purposes of an extraordinary writ.
Conclusion
{¶ 28} While visiting Ohio, an Arizona child has been summarily taken
from her mother and given to a nonparent through an ex parte proceeding. The
juvenile court did not follow the law that gives it jurisdiction over the child. And
the court of appeals has told the mother that she has an adequate remedy at law
since at some distant point in the future any error will be vindicated on appeal.
We disagree.
{¶ 29} The writ of prohibition is granted. The Sandusky County Juvenile
Court is hereby directed to vacate all orders entered in this matter subsequent to
August 2010, and the child is to be returned to the custody of the mother
forthwith.
Judgment reversed
and cause remanded.
O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, and O’NEILL, JJ.,
concur.
KENNEDY and FRENCH, JJ., dissent and would affirm the judgment of the
court of appeals.
____________________
Gerald R. Walton & Associates, Gerald R. Walton, and John J. Schneider,
for appellant.
Thomas L. Stierwalt, Sandusky County Prosecuting Attorney, and
Norman P. Solze, Assistant Prosecuting Attorney, for appellees.
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