State ex rel. C v. v. Adoption Link, Inc. (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. C.V. v. Adoption Link, Inc., Slip Opinion No. 2019-Ohio-2118.]
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. 2019-OHIO-2118
THE STATE EX REL. C.V. v. ADOPTION LINK, INC., ET AL.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. C.V. v. Adoption Link, Inc.,
Slip Opinion No. 2019-Ohio-2118.]
Prohibition and habeas corpus—R.C. 5103.15(B)—Permanent-surrender
agreement—Writ of prohibition against juvenile-court judge granted—Writ
of prohibition against probate-court judge denied—Writ of habeas corpus
denied.
(No. 2018-1857—Submitted March 26, 2019—Decided May 30, 2019.)
IN PROHIBITION and HABEAS CORPUS.
________________
Per Curiam.
{¶ 1} Relator, C.V., is the biological mother of N.V., born August 10, 2018.
In this original action, she seeks writs of prohibition and habeas corpus to (1) vacate
a Greene County Juvenile Court judge’s approval of her agreement to permanently
surrender N.V. to the custody of Adoption Link, Inc., (2) halt adoption proceedings
in the Greene County Probate Court, and (3) compel the return of N.V. to her care
and custody. For the reasons explained below, we grant C.V.’s request for a writ
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of prohibition against the Greene County Juvenile Court judge, we deny her request
for a writ of prohibition against the Greene County Probate Court judge, and we
deny her request for a writ of habeas corpus. In addition, we deny the motion for
oral argument and deny as moot the motion for leave to file a surreply brief.
I. Background
{¶ 2} The essential facts of this case are not in dispute. On the afternoon of
August 10, 2018, C.V. gave birth to a baby girl in the bathroom of her residence.
C.V. has a history of substance abuse and addiction, including heroin use, and
before going into labor, she did not know she was pregnant. Fire-department
personnel transported C.V. and the baby to Good Samaritan Hospital in Cincinnati.
{¶ 3} At 11:00 a.m. the next morning, C.V. met with a Good Samaritan
Hospital social worker, who showed her adoption-agency pamphlets. C.V. selected
Adoption Link. Within an hour, Naomi Ewald, the director of Adoption Link, sent
profiles of four prospective adoptive families, and C.V. selected K.B.
{¶ 4} That afternoon, C.V. met with Adoption Link’s adoption assessor,
Melissa Manzi. During that meeting, which took place in C.V.’s hospital room,
C.V. executed a temporary-custody agreement, transferring temporary custody to
Adoption Link for a period of 61 days. In addition, she signed a form titled “Ohio
Law and Adoption Materials,” acknowledging that she had been provided with
written materials on adoption and was fully aware of the ramifications of
surrendering custody of her child, and she answered questions so that Manzi could
fill out the “Social and Medical History” form required by R.C. 3107.09(A) and
(B).
{¶ 5} C.V. was discharged from the hospital the following day, and later
that evening, she began her treatment regimen for heroin addiction. Two days later,
on August 14, she had her first assessment meeting for admission to an inpatient
addiction-treatment facility.
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{¶ 6} Also on August 14, C.V. executed a permanent-surrender-of-child
agreement, assigning permanent custody of N.V. to Adoption Link.
{¶ 7} The next day, August 15, Adoption Link filed the permanent-
surrender agreement, along with the “Ohio Law and Adoption Materials” and
“Social and Medical History” forms, with the clerk of the Greene County Juvenile
Court. On August 16, the Greene County Juvenile Court judge signed the bottom
of the surrender agreement, below preprinted text that stated, “I hereby approve the
transfer of permanent custody,” and “I find that continuation in the home is contrary
to the best interest of the child and that the placement is in the best interest of the
child.” The juvenile-court judge also signed a judgment entry, which, along with
the court-approved surrender agreement, was filed the next day, August 17, finding
that the surrender agreement was in N.V.’s best interest, finding that C.V. had
entered into the agreement knowingly and voluntarily, granting Adoption Link
permanent custody, and terminating C.V.’s parental rights.
{¶ 8} Prior to filing the present action, C.V. made two attempts to revoke
the surrender agreement based on an alleged change of circumstances: she filed a
“Motion to Withdraw Consent of Adoption” in the Hamilton County Probate Court
and a “Motion to Withdraw Consent of the Permanent Surrender & Appeal to
Petition of Adoption” in the Greene County Juvenile Court. Both motions were
denied.
{¶ 9} On December 31, 2018, C.V. commenced the present suit for writs of
prohibition and habeas corpus. In addition to the Greene County Juvenile Court
judge and Adoption Link, she named as respondents the Greene County Probate
Court judge, whom she believes is presiding over adoption proceedings involving
N.V., and the prospective adoptive mother, K.B. All four respondents filed motions
to dismiss, which we denied, 154 Ohio St. 3d 1516, 2019-Ohio-695, 118 N.E.3d
254. On February 12, 2019, we issued an order staying all adoption proceedings.
154 Ohio St. 3d 1505, 2019-Ohio-489, 116 N.E.3d 1285.
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{¶ 10} On March 5, 2019, C.V. filed an unopposed motion for oral
argument. And at the close of briefing on the merits, K.B. filed a motion for leave
to file a surreply brief to respond to arguments raised in C.V.’s reply brief.
II. Analysis
A. Motion for oral argument
{¶ 11} We have discretion to grant oral argument in an original action,
S.Ct.Prac.R. 17.02, and 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.
Sands v. Court of Common Pleas Judge, 155 Ohio St. 3d 238, 2018-Ohio-4245, 120
N.E.3d 799, ¶ 6. In this case, we conclude that none of those factors is present and
that the parties’ briefs are sufficient to resolve the issues raised. We therefore deny
the motion.
B. C.V.’s request for a writ of prohibition against
the Greene County Juvenile Court judge
{¶ 12} Three elements are necessary for a writ of prohibition to issue: the
exercise of judicial power, the lack of authority for the exercise of that power, and
the lack of an adequate remedy in the ordinary course of law. State ex rel. Elder v.
Camplese, 144 Ohio St. 3d 89, 2015-Ohio-3628, 40 N.E.3d 1138, ¶ 13. However,
if the absence of jurisdiction is patent and unambiguous, a relator need not establish
the third prong, the lack of an adequate remedy at law. State ex rel. Sapp v. Franklin
Cty. Court of Appeals, 118 Ohio St. 3d 368, 2008-Ohio-2637, 889 N.E.2d 500, ¶ 15.
{¶ 13} C.V.’s complaint seeks a writ of prohibition against the Greene
County Juvenile Court judge on the ground that he had no legal authority to approve
the surrender agreement or terminate her parental rights. There is no dispute that
the juvenile-court judge’s approval of the surrender agreement was an exercise of
judicial authority. The question we must resolve is whether he patently and
unambiguously lacked jurisdiction to issue that approval.
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January Term, 2019
{¶ 14} Ohio’s juvenile courts have limited jurisdiction: they can exercise
only the authority conferred on them by the General Assembly. In re Z.R., 144
Ohio St. 3d 380, 2015-Ohio-3306, 44 N.E.3d 239, ¶ 14. In certain situations, an
adoption agency is required to seek and a juvenile court is authorized to provide
approval of a permanent-surrender agreement. R.C. 5103.15(B)(1) (“(B)(1)
surrenders”). But for a limited class of surrender agreements—agreements with
private child-placing agencies for the placement of children under six months of
age for the sole purpose of adoption—the agency is not required to seek and the
juvenile court has no authority to grant approval of the agreement. R.C.
5103.15(B)(2) (“(B)(2) surrenders”). With respect to (B)(2) surrenders, the agency
is required only to “notify” the court of the agreement within two business days and
the juvenile court is authorized only to journalize the notification. Id.; see also
Juv.R. 38(B)(2) (“An agreement for the surrender of permanent custody of a child
to a private service agency is not required to be approved by the court if the
agreement is executed solely for the purpose of obtaining an adoption of a child
who is less than six months of age on the date of the execution of the agreement”).
The role of the juvenile court in a (B)(2) surrender is purely ministerial. See, e.g.,
In re E.B., 9th Dist. Summit No. 23850, 2008-Ohio-784, ¶ 15 (holding that juvenile
court had no jurisdiction to hear a challenge to a previously filed (B)(2) surrender
agreement because the court under R.C. 5103.15(B)(2) had “merely journalize[d]”
the agreement and had lacked authority to “approve” it).
{¶ 15} The precise language of the statute conferring jurisdiction upon a
juvenile court regarding surrender agreements is as follows: “The juvenile court
has exclusive original jurisdiction * * * [t]o hear and determine * * * requests for
court approval of permanent custody agreements that are filed pursuant to section
5103.15 of the Revised Code.” R.C. 2151.23(A)(9). A (B)(2) surrender does not
involve a “request[] for court approval.” It is therefore outside the scope of a
juvenile court’s statutory authority to approve.
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{¶ 16} It is plain from the record that Adoption Link did not believe that it
was operating under R.C. 5103.15(B)(1). Although Adoption Link filed the
agreement with the Greene County Juvenile Court clerk’s office, there is no
evidence in the record to suggest that it filed a motion or other pleading requesting
court approval of the surrender agreement. In addition, there is no evidence
indicating that it filed a case plan with the juvenile court, as it would have been
required to do for a (B)(1) surrender but not for a (B)(2) surrender. Furthermore,
the juvenile-court judge’s judgment entry that purported to approve the surrender
agreement expressly stated that the court had been “notified” of the agreement “as
required by Ohio Revised Code Section 5103.15(B)(2),” thus indicating that this
was not a (B)(1) surrender even though he made findings and supposedly approved
the agreement.
{¶ 17} R.C. 5103.151(C) does not provide a jurisdictional basis for the
juvenile-court judge to approve the Adoption Link surrender agreement. That
statute provides that if certain conditions are met, then
[a] juvenile court may approve an agreement entered into under
division (B)(1) of section 5103.15 of the Revised Code between a
* * * private child placing agency and the parents of a child who is
less than six months of age and will be, if adopted, an adopted person
* * * without the parents both appearing before the court.
Based on this language, it is correct to say that some permanent surrenders
involving children six months of age and younger fall under the terms of R.C.
5103.15(B)(1).
{¶ 18} But a child’s young age alone does not make a surrender agreement
subject to R.C. 5103.15(B)(2); rather, a surrender agreement is subject to R.C.
5103.15(B)(2), and not R.C. 5103.15(B)(1), when “the child is less than six months
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January Term, 2019
of age and the parents are entering the agreement with a private child-placing
agency for the sole purpose of adoption.” (Emphasis added.) Notably, this phrase
does not appear in R.C. 5103.151(C)’s description of a (B)(1) surrender agreement.
The difference between a (B)(1) surrender and a (B)(2) surrender is not in how the
agency characterizes the surrender or elects to proceed in the juvenile court—the
fundamental difference is in whether the surrender is for the sole purpose of
adoption. A surrender agreement, by definition, cannot be subject to both R.C.
5103.15(B)(1) and (B)(2).
{¶ 19} The evidence is overwhelming that C.V. and Adoption Link
executed the surrender agreement for the sole purpose of adoption. Adoption Link
is, after all, an adoption agency, not a general social-services organization. Naomi
Ewald, the director of Adoption Link, attested that C.V. “signed the Permanent
Surrender of Child for the placement and adoption of [N.V.] with Adoption Link,
Inc.” (Emphasis added.) And when contacted about C.V., Ewald immediately
dispatched Melisa Manzi, who describes her position with Adoption Link as “an
adoption assessor,” to C.V.’s hospital room. (Emphasis added.) And the surrender
agreement itself notes that C.V. “has chosen an adoptive parent to raise this child.”
{¶ 20} In short, any attempt to recharacterize the juvenile-court judge’s
judgment entry as involving a proceeding under R.C. 5103.15(B)(1) in order to
justify his general jurisdiction over the matter fails to acknowledge the plain
language of R.C. 5103.15(B) and the undisputed evidence. “A juvenile court may
exercise jurisdiction only if expressly granted the authority to do so by statute.”
(Emphasis added.) Rowell v. Smith, 133 Ohio St. 3d 288, 2012-Ohio-4313, 978
N.E.2d 146, ¶ 13. The juvenile-court judge’s purported approval of the (B)(2)
surrender agreement between C.V. and Adoption Link was a legal nullity and must
be voided. State ex rel. Fogle v. Steiner, 74 Ohio St. 3d 158, 164, 656 N.E.2d 1288
(1995) (holding that judgment entry issued by court lacking jurisdiction was a
nullity and vacating the entry).
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{¶ 21} Moreover, by treating this as a (B)(1) surrender even though he cited
R.C. 5103.15(B)(2), the juvenile-court judge made factual findings concerning
N.V.’s best interest and C.V.’s state of mind, and he terminated C.V.’s parental
rights—all without conducting a hearing or allowing C.V. any opportunity to
present her case.
{¶ 22} The facts presented by C.V. are egregious. Some of the most
troubling are that C.V. was not aware that she was pregnant until she gave birth, so
she certainly had no opportunity to consider in advance what to do with the baby.
But Adoption Link rushed the surrender process. Within 24 hours of N.V.’s birth,
as C.V. was beginning to experience heroin withdrawal, Adoption Link employees
were already in her hospital room, collecting signatures on various legal documents
and conducting the mandatory adoption assessment. R.C. 5103.152 requires a
waiting period of at least 72 hours after the assessment before a parent can sign a
permanent-surrender agreement. At Adoption Link’s instigation, C.V. signed the
surrender agreement, at most, 76 hours after the assessment.1 When she signed,
C.V. was still suffering from heroin withdrawal as well as from drastic blood loss
and anemia, the product of an undiagnosed postpartum hemorrhage that would
require surgery three days later.
{¶ 23} Other circumstances of the surrender suggest the possibility of fraud,
duress, or undue influence. For example, during the assessment meeting, Manzi
offered to pay C.V., a heroin addict, $1,000 for her expenses when an adoption
match was made, plus an additional $2,000 upon execution of the surrender
agreement. And Adoption Link provided a lawyer to counsel C.V. about signing
the agreement without disclosing that the attorney, Darlene Rogers, was an
undisclosed agent working for Adoption Link.
1
Ewald’s notes indicate that she assigned Manzi, the assessor, to meet with C.V. “on Saturday,
August 11 at 3 p.m.” The permanent-surrender agreement was executed on August 14 at 7:14 p.m.
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January Term, 2019
{¶ 24} Fortunately, as a consequence of our judgment today, C.V. will have
an opportunity to present her arguments for revoking the surrender agreement
before the probate court can determine whether to terminate her parental rights, an
opportunity she was not afforded prior to the juvenile-court judge’s decision
{¶ 25} We grant the writ of prohibition against the Greene County Juvenile
Court judge and vacate his judgment entry approving the surrender agreement.
C. C.V.’s petition for a writ of habeas corpus
{¶ 26} To obtain 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 a superior legal right to custody of the child. State ex rel. Bruggeman
v. Auglaize Cty. Court of Common Pleas, 87 Ohio St. 3d 257, 719 N.E.2d 543
(1999). Habeas corpus relief “is the exception rather than the general rule in child
custody actions.” Evans v. Klaeger, 87 Ohio St. 3d 260, 261, 719 N.E.2d 546
(1999).
{¶ 27} A writ of habeas corpus will not issue if the petitioner has an
adequate remedy in the ordinary course of law. Rammage v. Saros, 97 Ohio St. 3d
430, 2002-Ohio-6669, 780 N.E.2d 278, ¶ 9. C.V. has an adequate remedy in the
ordinary course of law by which to contest the validity of the Adoption Link
surrender agreement: she can intervene in the probate-court adoption proceedings.
See Barnebey v. Zschach, 71 Ohio St. 3d 588, 646 N.E.2d 162 (1995) (ability to file
a motion in adoption proceedings in probate court was available adequate remedy,
and thus, relief in habeas corpus was unavailable). If she does intervene, the
probate court should determine whether the required consents have been obtained.
{¶ 28} Because we conclude that C.V. has an adequate remedy available to
her in the ordinary course of law, we deny her request for a writ of habeas corpus.
It is therefore unnecessary to consider the substantive legal arguments she presents
in favor of the issuance of a writ of habeas corpus in proposition of law Nos. 1
through 8. And because K.B.’s motion for leave to file a surreply brief seeks to
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supplement the legal arguments in opposition to proposition of law No. 5, that
motion is denied as moot.
D. C.V.’s request for a writ of prohibition against
the Greene County Probate Court judge
{¶ 29} C.V. seeks a writ of prohibition against the Greene County Probate
Court judge to prevent him from exercising power over N.V.’s adoption
proceedings. In Ohio, probate courts are vested with “original and exclusive
jurisdiction over adoption proceedings.” In re Adoption of Pushcar, 110 Ohio St. 3d
332, 2006-Ohio-4572, 853 N.E.2d 647, ¶ 9. As a general rule, a probate court may
grant a petition for the adoption of a minor only when written consent to the
adoption has been executed by the mother of the minor, the father of the minor (in
certain circumstances), and “[a]ny person or agency having permanent custody of
the minor or authorized by court order to consent.” R.C. 3107.06. However,
parental consent to the adoption is not required, and the consent of the agency
having permanent custody of the child is sufficient for the adoption to proceed, if
the parent “has entered into a voluntary permanent custody surrender agreement”
under R.C. 5103.15(B) and the requirements of R.C. 3107.071 have been met. R.C.
3107.07(C).
{¶ 30} Before entering a final decree of adoption, the probate court has an
affirmative duty to determine whether the required consents have been obtained.
R.C. 3107.14(C). To satisfy that duty in this case, the probate court must grant
C.V. leave to intervene if she seeks leave and then determine whether the surrender
agreement is valid. If the probate court determines that the surrender agreement is
valid, then the adoption may proceed without her consent. But if the probate court
determines that the agreement is not valid, then the adoption may not proceed
without C.V.’s consent.
{¶ 31} It follows from this discussion that we will not issue a writ of
prohibition against the Greene County Probate Court judge. The determination
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January Term, 2019
whether the requisite consents have been obtained falls squarely within the statutory
jurisdiction of the probate court. We therefore reject proposition of law Nos. 9 and
10, which challenge the jurisdiction of the probate court to determine the validity
of the surrender agreement.
{¶ 32} We also reject proposition of law No. 11, which attempts to invoke
the jurisdictional-priority rule. The jurisdictional-priority rule provides that, “ ‘[a]s
between [state] courts of concurrent jurisdiction, the tribunal whose power is first
invoked by the institution of proper proceedings acquires jurisdiction, to the
exclusion of all other tribunals, to adjudicate upon the whole issue and settle the
rights of the parties.’ ” (Brackets sic.) State ex rel. Dunlap v. Sarko, 135 Ohio
St.3d 171, 2013-Ohio-67, 985 N.E.2d 450, ¶ 9, quoting State ex rel. Phillips v.
Polcar, 50 Ohio St. 2d 279, 364 N.E.2d 33 (1977), syllabus. The date on which the
adoption petition was filed in Greene County Probate Court is not in the record, and
therefore, we cannot determine whether C.V.’s filing in the Hamilton County
Probate Court was first in time.
{¶ 33} We deny the request for a writ of prohibition against the Greene
County Probate Court judge.
III. Conclusion
{¶ 34} For the reasons stated above, we grant the request for a writ of
prohibition against the Greene County Juvenile Court judge, deny the request for a
writ of habeas corpus, and deny the request for a writ of prohibition against the
Greene County Probate Court judge. We also deny K.B.’s motion for leave to file
a surreply brief and C.V.’s motion for oral argument.
Writ of prohibition against the Greene County Juvenile Court judge granted,
writ of prohibition against the Greene County Probate Court judge denied,
and writ of habeas corpus denied.
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O’CONNOR, C.J., and FRENCH and DONNELLY, JJ., concur.
STEWART, J., concurs in part and concurs in judgment only in part, with an
opinion.
DEWINE, J., concurs in part and dissents in part, with an opinion joined by
KENNEDY and FISCHER, JJ.
__________________
STEWART, J., concurring in part and concurring in judgment only in
part.
{¶ 35} I agree with the per curiam opinion that we should deny C.V.’s
requests for a writ of prohibition against the Greene County Probate Court judge
and for a writ of habeas corpus. I also agree that a writ of prohibition against the
Greene County Juvenile Court judge should issue. Nevertheless, I concur only in
the judgment with regard to the writ against the juvenile-court judge because I
would issue the writ for reasons different than those expressed in the per curiam
opinion.
{¶ 36} C.V. seeks a writ of prohibition against the juvenile-court judge to
both prohibit future action by the juvenile court and to relieve her from its holding
that she knowingly and voluntarily entered into the surrender agreement with
Adoption Link, Inc. C.V.’s remedy in the form of intervention in the adoption
proceedings is adequate only if the probate court is allowed to review the
voluntariness of the surrender agreement in the first instance, without giving any
consideration or preclusive effect to the juvenile court’s determination. Although
the opinion concurring in part and dissenting in part notes that the juvenile court’s
determination should not be given preclusive effect, the opinion fails to explain
how this court has the authority to limit the juvenile court’s determination in this
way without issuing a writ of prohibition or reviewing the matter through a
discretionary appeal and reversing it.
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January Term, 2019
{¶ 37} To be entitled to a writ of prohibition, C.V. must establish: (1) the
exercise of judicial power, (2) the lack of authority for the exercise of that power,
and (3) the lack of an adequate remedy in the ordinary course of law. See State ex
rel. Elder v. Camplese, 144 Ohio St. 3d 89, 2015-Ohio-3628, 40 N.E.3d 1138, ¶ 13.
The general understanding in Ohio is that a writ of prohibition may issue to prohibit
future judicial action but not to remediate prior unauthorized actions by a court.
State ex rel. Stefanick v. Marietta Mun. Court, 21 Ohio St. 2d 102, 104, 255 N.E.2d
634 (1970) (holding that prohibition cannot be used “to review the regularity of an
act already performed”). Nevertheless, this court has recognized an exception to
the general principle that prohibition is prospective rather than remedial, stating
that when an “ ‘inferior court patently and unambiguously lacks jurisdiction over
the cause, a writ of prohibition will be issued to prevent the unauthorized exercise
of jurisdiction and to correct the results of previous jurisdictionally unauthorized
actions.’ ” (Emphasis added.) State ex rel. Gains v. Maloney, 102 Ohio St. 3d 254,
2004-Ohio-2658, 809 N.E.2d 24, ¶ 10, quoting State ex rel. Wilkinson v. Reed, 99
Ohio St. 3d 106, 2003-Ohio-2506, 789 N.E.2d 203, ¶ 14.
{¶ 38} The per curiam opinion correctly notes that Adoption Link submitted
the surrender agreement signed by C.V. to the juvenile-court judge for
journalization in accord with R.C. 5103.15(B)(2) and did not request approval
under R.C. 5103.15(B)(1). R.C. 5103.15(B)(2) states: “The parents of a child less
than six months of age may enter into an agreement with a private child placing
agency surrendering the child into the permanent custody of the agency without
juvenile court approval if the agreement is executed solely for the purpose of
obtaining the adoption of the child.” Unlike a surrender agreement under R.C.
5103.15(B)(1), an R.C. 5103.15(B)(2) surrender agreement does not require court
approval—the juvenile court’s role under R.C. 5103.15(B)(2) is to “journalize the
notices it receives.”
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{¶ 39} The juvenile-court judge issued a judgment entry stating that he had
been “properly notified by Adoption Link, Inc., that the Permanent Surrender of
Child Form 1666 was executed by” C.V. and that he had been “duly notified of the
executed agreement and the placement of the child for adoption as required by Ohio
Revised Code Section 5103.15(B)(2).” This suffices to show that C.V. signed an
R.C. 5103.15(B)(2) surrender agreement.
{¶ 40} As the juvenile court stated in its judgment entry, C.V. executed
Ohio Department of Job and Family Services Form 1666 (“Form 1666”), which is
titled “Permanent Surrender of Child.” That form allows for the private child-
placing agency (“PCPA”) to assume, and retain, permanent custody of a child. See
Ohio Adm.Code 5101:2-42-04(B)(3). “When a PCPA executes a [Form 1666]
involving a child under six months of age where the agreement is executed solely
for obtaining the adoption of the child and the parents(s) [sic] consent to the
permanent surrender, approval by the juvenile court is not required.” Ohio
Adm.Code 5101:2-42-09(F). The Form 1666 signed by C.V. explicitly states when
the juvenile court’s approval is required: “Under Ohio law, Ohio Revised Code
Section 5103.15(B), approval of the juvenile court is required if this agreement is
entered into by a public children service agency or is executed by a private child
placing agency for a child six months of age or older.”
{¶ 41} Because this was an R.C. 5103.15(B)(2) surrender agreement, the
juvenile court had no statutory authority to approve the agreement, it should not
have made findings regarding whether the agreement was in the best interest of the
child under R.C. 5103.15(B)(1), and it had no basis for making his finding that “the
birthmother was notified of her respective rights and entered into the Permanent
Surrender Agreement knowingly and voluntarily.” Those findings would have
been required only if the surrender agreement had been submitted under R.C.
5103.15(B)(1).
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January Term, 2019
{¶ 42} However, contrary to the view of the opinion concurring in part and
dissenting in part, even if Adoption Link had requested R.C. 5103.15(B)(1)
approval (again the facts in this case clearly show that Adoption Link was
proceeding under R.C. 5103.15(B)(2) and simply asking the court to journalize the
agreement), the surrender agreement in this case could not have been approved
under R.C. 5103.15(B)(1), because C.V. did not personally appear before the
juvenile court before the judge issued the findings and entered the approval.
Although R.C. 5103.151(C) explicitly states that a juvenile-court judge may
approve an R.C. 5103.15(B)(1) surrender agreement without the parents having
personally appeared before the court, for a judge to have authority to do this, both
parents must have signed the permanent-surrender agreement. See R.C.
5103.151(C). It is undisputed that C.V. was the only parent who signed the
surrender agreement in this case. Furthermore, R.C. 5103.151(C) is an exception
to the general rule contained in R.C. 5103.151(B), which states:
Except as provided in division (C) of this section, a parent of
a minor who will be, if adopted, an adopted person as defined in
section 3107.45 of the Revised Code shall do all of the following as
a condition of a juvenile court approving the parent’s agreement
with a public children services agency or private child placing
agency under division (B)(1) of section 5103.15 of the Revised
Code:
(1) Appear personally before the court.
(Emphasis added.) Accordingly, the juvenile court was without authority to
approve the agreement under R.C. 5103.15(B)(1) without C.V.’s having appeared
before it. The per curiam opinion agrees that this was a legal error.
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{¶ 43} Where I disagree with the per curiam opinion is in its assertion that
the juvenile court acted without subject-matter jurisdiction. R.C. 2151.23(A)(9)
vests juvenile courts with exclusive original jurisdiction “[t]o hear and determine
requests for the extension of temporary custody agreements, and requests for court
approval of permanent custody agreements, that are filed pursuant to section
5103.15 of the Revised Code.” Although the per curiam opinion interprets this
provision to mean that the filing of an R.C. 5103.15(B)(2) surrender agreement do
not invoke a juvenile court’s subject-matter jurisdiction—because the filing does
not involve a “request” for approval under R.C. 5103.15 but is, rather, a request for
the purely ministerial act of journalizing the agreement—this interpretation is
logically inconsistent with other provisions of R.C. Chapter 5103.
{¶ 44} For instance, R.C. 5103.153(A)(2) requires a juvenile court to
review an R.C. 5103.15(B)(2) agreement every six months in the absence of
notification that the child has been placed for adoption:
A juvenile court shall conduct a review hearing of an
agreement entered into under division (B)(2) of section 5103.15 of
the Revised Code once every six months after the court is notified
of the agreement if the agreement is still in effect and the court has
not been notified that the child who is the subject of the agreement
has been placed for adoption. The private child placing agency that
entered into the agreement shall file a case plan, prepared pursuant
to section 2151.412 of the Revised Code, with the court at the review
hearing.
{¶ 45} A juvenile court could not have continuing jurisdiction to conduct a
hearing to review an R.C. 5103.15(B)(2) agreement if the filing of the agreement
did not invoke the court’s original jurisdiction. A review hearing is clearly not
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ministerial. Therefore, I believe that the better understanding of a juvenile court’s
jurisdiction under R.C. 2151.23(A)(9) is that the juvenile court has jurisdiction over
both R.C. 5103.15(B)(1) and (B)(2) surrender agreements. Accordingly, in my
view, the juvenile court had subject-matter jurisdiction pursuant to R.C.
2151.23(A)(9) because this case involved the filing of an R.C. 5103.15 surrender
agreement.
{¶ 46} Despite his having subject-matter jurisdiction, the judge’s authority
to approve the surrender agreement in this case was limited by R.C. 5103.151(B)
and (C). There is no question that the juvenile-court judge acted outside his
authority under the statute by approving the surrender agreement under R.C.
5103.15(B)(1) without C.V.’s having appeared before the court. Nevertheless,
errors like these render that part of the journal entry voidable, not void ab initio for
want of subject-matter jurisdiction. State v. Smith, 10th Dist. Franklin No. 06AP-
1059, 2007-Ohio-2873, ¶ 10 (“When a trial court lacks subject matter jurisdiction,
its judgment is void; lack of jurisdiction over the particular case merely renders the
judgment voidable”); see In re Complaint of Pilkington N. Am., Inc., 145 Ohio St. 3d
125, 2015-Ohio-4797, 47 N.E.3d 786, ¶ 22.
{¶ 47} Although C.V. cannot show that the juvenile court patently and
unambiguously lacked subject-matter jurisdiction to act in this case, she has
nevertheless met her burden of proving that she is entitled to a writ of prohibition.
{¶ 48} First, the juvenile-court judge’s purported approval of the surrender
agreement under R.C. 5103.15(B)(1) was an exercise of judicial power, and second,
pursuant to R.C. 5103.151(C), that purported approval was not authorized by law.
Third, C.V. has no adequate remedy at law by way of appeal from the juvenile
court’s decision.
{¶ 49} “[I]n order for there to be an adequate remedy at law, a remedy must
be complete, beneficial, and speedy.” Marich v. Knox Cty. Dept. of Human
Servs./Children Servs. Unit, 45 Ohio St. 3d 163, 165, 543 N.E.2d 776 (1989), citing
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State ex rel. Liberty Mills v. Locker, 22 Ohio St. 3d 102, 488 N.E.2d 883 (1986). In
Marich, this court held that a biological mother could proceed with her claim in
habeas corpus because the appeal process would not provide her an adequate
remedy at law due to the time delay it would involve. Specifically, we noted:
In this case, an appeal would not be adequate because it
would not be speedy. Before the natural mother could appeal, she
would have to move to vacate the juvenile court’s entry consenting
to her permanent surrender agreement. Since the natural mother has
already informally requested this vacation and it has been denied, a
more formal motion would be futile and time-consuming. After the
denial of the motion, the natural mother would have to appeal to the
court of appeals and the losing party would doubtlessly appeal to
this court. On the other hand, the court of appeals and this court
expedite habeas corpus matters.
Id. at 165.
{¶ 50} As was true in Marich, C.V.’s remedy by way of an appeal from the
juvenile court’s order is inadequate. Like the mother in Marich, C.V. has already
asked for and been denied relief from judgment by the juvenile court. If C.V. were
required to appeal from that judgment, not only would there be a time delay as she
prepared for argument and awaited a decision but that decision could result in a
remand to the juvenile court for a determination whether it should proceed under
R.C. 5103.15(B)(1) or (B)(2). Delay associated with the appeal and potential
remand would also interfere in the adoption proceedings in probate court, causing
further delay. Meanwhile, N.V., the infant child, would be growing older each day
without any final determination with regard to permanent custody. Simply put,
under the facts of this case, an appeal is not an adequate remedy.
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{¶ 51} Therefore, I vote to grant C.V.’s request for a writ of prohibition
against the juvenile-court judge both to prevent the judge from taking any further
action in this matter and to remediate the erroneous judgment entry that purported
to make findings and declarations that the juvenile court had no authority to make
under the facts of this case. Although I realize that in taking this position I depart
from the general rule that a writ of prohibition will not issue to remediate prior
unauthorized actions unless there is a patent and unambiguous lack of subject-
matter jurisdiction, I believe that this case warrants such a departure and I believe
that the principles behind this court’s case law support it.
{¶ 52} In State ex rel. Adams v. Gusweiler, the first case in which this court
departed from its earlier longstanding precedent that “prohibition may be invoked
only to prevent a future act and not to undo an act already performed,” we noted
that “strict adherence to that rule exalts form over substance.” 30 Ohio St. 2d 326,
329, 285 N.E.2d 22 (1972). We also noted in that case that “a court which has
jurisdiction to issue the writ of prohibition as well as the writs of procedendo and
mandamus has plenary power, not only to prevent excesses of lower tribunals, but
to correct the results thereof and to restore the parties to the same position they
occupied before the excesses occurred.” (Emphasis added.) Id. at 330.
{¶ 53} In a case such as this, a case in which every justice of the court agrees
that the juvenile court’s findings and decision should not be considered or given
preclusive effect in the adoption proceedings either because they were made in error
or because they were rendered without subject-matter jurisdiction and in which the
custody of an infant needing a permanent home hangs in the balance, it would be
unconscionable not to issue the writ. I therefore agree that the writ of prohibition
that C.V. seeks should be granted.
{¶ 54} The fact that the juvenile-court judge erroneously made findings
under R.C. 5103.15(B)(1), however, did not affect the juvenile court’s jurisdiction
to journalize the notice provided in Form 1666 pursuant to R.C. 5103.15(B)(2). By
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granting the writ to remove from the journal entry all language relating to R.C.
5103.15(B)(1), we would leave intact a journal entry that satisfies R.C.
5103.15(B)(2) and C.V. would have the opportunity to contest the validity of the
surrender agreement by intervention in the probate-court proceedings.
{¶ 55} Since the probate court is in the best position to act as the finder of
fact when determining the issue of the validity of the surrender agreement and since
this court has instructed the probate court to do just that with the grant of a writ of
prohibition against the juvenile court, I see no reason why the per curiam opinion
addresses facts that may be relevant in the probate-court case but are not relevant
to the issues before us.
__________________
DEWINE, J., concurring in part and dissenting in part.
{¶ 56} I join the per curiam opinion except with regard to its grant of a writ
of prohibition against the Greene County Juvenile Court judge. I would deny the
writ of prohibition because the Greene County Juvenile Court did not patently and
unambiguously lack jurisdiction to approve the surrender agreement.
{¶ 57} R.C. 5103.15(B) sets forth the procedures by which a private child-
placing agency may obtain permanent custody of a child. With a narrow exception
set forth in subsection (B)(2), those procedures require the juvenile court to approve
the agreement. Subsection (B)(1) states that the “court may approve the permanent
surrender agreement if it determines that the agreement is in the best interest of the
child and, in the case of an agreement between a parent and an agency, the
requirements of section 5103.151 of the Revised Code are met.” Hence, under
subsection (B)(1), a juvenile court plainly has jurisdiction to approve permanent-
surrender agreements. And nothing in that subsection limits the jurisdiction of the
court over such agreements based on the age of the child or the purpose of the
agreement.
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{¶ 58} Contrary to the per curiam opinion’s reading, subsection (B)(2)
merely creates a narrow exception to the juvenile-court-approval requirement. It
states that the parents of a child may enter into a permanent-custody agreement
without juvenile-court approval if the child is under six months of age and the
agreement is for the sole purpose of adoption. But nothing in that provision takes
away the jurisdiction that (B)(1) provides. Thus, the Greene County Juvenile Court
judge plainly had subject-matter jurisdiction over the permanent-custody
agreement; whether he exercised that jurisdiction appropriately in approving the
agreement is a different issue. The mere fact that under R.C. 5103.15(B)(2) the
judge may not have been required to approve the agreement does not mean that he
lacked subject-matter jurisdiction to do so. Accordingly, I would reject C.V.’s 14th
proposition of law.
{¶ 59} C.V.’s 12th and 13th propositions of law go to whether the Greene
County Juvenile Court judge properly exercised his jurisdiction. C.V. has an
adequate remedy at law by intervening in the probate-court case to raise these
arguments; thus, the arguments raised under these propositions provide no basis for
issuing a writ of prohibition.
{¶ 60} I agree that C.V.’s remedy is to intervene in the Greene County
Probate Court proceedings. If she does so properly and in a timely manner, the
probate court will first need to determine whether the required consents to surrender
the child were obtained. In those proceedings, no preclusive effect should be given
to the Greene County Juvenile Court’s August 17, 2018 judgment entry. C.V. was
not a party to the proceeding before the court, she was not notified of it, and she did
not appear. Accordingly, she has not had a full and fair opportunity to litigate the
validity of the surrender agreement. See Hicks v. De La Cruz, 52 Ohio St. 2d 71,
74, 369 N.E.2d 776 (1977).
KENNEDY and FISCHER, JJ., concur in the foregoing opinion.
_________________________
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Kuhn Limited and Ryan D. Kuhn, for relator.
Voorhees & Levy, L.L.C., and Michael R. Voorhees, for respondent
Adoption Link, Inc.
Stephen K. Haller, Greene County Prosecuting Attorney, and Elizabeth A.
Ellis, Assistant Prosecuting Attorney, for respondents the Greene County Juvenile
Court and Probate Court judges.
Zeiger, Tigges & Little, L.L.P., and Daniel P. Mead, for respondent K.B.
_________________________
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