State ex rel. Roush v. Montgomery (Slip Opinion)
State ex rel. Roush v. Montgomery (Slip Opinion)
Opinion
*351
{¶ 1}
This is an appeal from a judgment of the Tenth District Court of Appeals dismissing the complaint of appellant, Robert B. Roush, for a writ of prohibition or mandamus. Roush, an inmate at the Ross Correctional Institution, seeks a writ requiring dismissal of an adoption proceeding concerning his biological child. That case was brought in the probate division of the Franklin County Court of Common Pleas, and the appellee in this action, Judge Robert G. Montgomery, is the judge of that court. In his brief to this court, Roush notes that Judge Montgomery has already granted the adoption. Under settled law, the issuance of a judgment in the adoption case does not moot the prohibition claim.
State ex rel. Brady v. Pianka
,
{¶ 2} Roush's main contention is that because an adoption cannot be granted under R.C. 3107.06 without the biological father's consent, he deprived the probate court of jurisdiction by withholding his consent to the adoption. Additionally, Roush contends that his incarceration and the biological mother's cease-and-desist-contact order against him negated the probate court's jurisdiction to grant *352 the adoption based on a finding under R.C. 3107.07(A) that he had failed to maintain more than de minimis contact with the child over a period of one year or more.
{¶ 3}
The court of appeals dismissed the prohibition claim, holding that the probate court had jurisdiction to render a determination under R.C. 3107.07(A) as to "whether [Roush] ha[d] failed without justifiable cause to provide more than de minimis contact with the minor for a period of at least one year."
*1121 Roush has appealed, and for the following reasons, we affirm the court of appeals' judgment.
{¶ 4}
We review a dismissal for failure to state a claim de novo.
State ex rel. McKinney v. Schmenk
,
{¶ 5}
The purpose of a writ of prohibition is to restrain inferior courts from exceeding their jurisdiction.
State ex rel. Tubbs Jones v. Suster
,
{¶ 6}
Roush has sufficiently alleged that Judge Montgomery exercised judicial power by presiding over the adoption proceedings. Next, Roush must show that the exercise of that power was unauthorized by law. As a general matter, probate courts have exclusive jurisdiction over adoption proceedings.
In re Adoption of M.G.B.-E.
,
*353 {¶ 7} For support of his argument that Judge Montgomery was unauthorized to rule on the adoption, Roush points to R.C. 3107.06, which states that an adoption petition "may be granted only if" written consent has been executed by certain people, including "[t]he father of the minor." But that statute sets forth a substantive criterion for the probate court to apply; it is not a jurisdictional limitation on the probate court's authority.
{¶ 8} The consent requirement is subject to exceptions set forth in R.C. 3107.07. Notable here is R.C. 3107.07(A), which abrogates the requirement that a parent consent when the parent has "failed without justifiable cause to provide more than de minimis contact with the minor or to provide for the maintenance and support of the minor as required by law or judicial decree for a period of at least one year." Roush contends that this provision was invoked against him in the adoption proceeding and that because of his imprisonment and a no-contact order against him, that exception does not apply to him.
{¶ 9} Like R.C. 3107.06, R.C. 3107.07(A) does nothing more than prescribe a substantive criterion to be applied in adoption cases. Because the probate court clearly possessed jurisdiction to determine whether Roush's consent was required and because Roush could appeal any adverse *1122 judgment, 1 the court of appeals correctly concluded that the prohibition claim should be dismissed.
{¶ 10}
We now turn to the mandamus claim. In essence, that claim consists of little more than applying a different label to the claim Roush already made for a writ of prohibition. The complaint states that "the writs [of prohibition and mandamus] should issue to compel dismissal of the underlying Probate case as set forth herein"; in other words, the mandamus claim seeks an order requiring Judge Montgomery to dismiss the adoption case on the grounds that his court lacks jurisdiction. For the reasons already stated, Roush has no legal right to such a dismissal, nor does Judge Montgomery have any legal duty to grant it. Moreover, mandamus will not lie to control a judge's discretion to determine the legal and factual issues properly raised in the case before him.
State ex rel. Fontanella v. Kontos
,
{¶ 11} In his brief, Roush questions the adequacy of appeal as a remedy, given that the court of appeals could affirm the trial court's judgment. Roush argues that "adequate remedy" "means more than merely making a remedy available"; it "requires that actual relief occur. Otherwise a writ may lie."
*354
{¶ 12}
But the likelihood of success of an appeal is not the measure of a remedy's adequacy. To be adequate, an alternative remedy such as appeal "must be complete, beneficial, and speedy."
State ex rel. Am. Legion Post 25 v. Ohio Civ. Rights Comm.
,
{¶ 13} For the foregoing reasons, we affirm the judgment of the court of appeals.
Judgment affirmed.
O'Connor, C.J., and Kennedy, French, Fischer, DeWine, Donnelly, and Stewart, JJ., concur.
Roush's brief to this court mentions an affidavit that he filed in the probate court that Judge Montgomery allegedly erred in rejecting. To the extent that that claim has any merit, it too can be asserted on appeal.
Reference
- Full Case Name
- The STATE EX REL. ROUSH, Appellant, v. MONTGOMERY, Judge, Appellee.
- Cited By
- 18 cases
- Status
- Published
- Syllabus
- Mandamus and prohibition—Court of appeals' judgment dismissing complaint affirmed.