In re Hunt

348 N.E.2d 727, 46 Ohio St. 2d 378, 75 Ohio Op. 2d 450, 1976 Ohio LEXIS 649

• Court: Ohio Supreme Court
• Decided: June 16, 1976
• Docket: No. 75-1128
• Status: Published

Opinions

Stern, J.

Appellant contends that the dependency complaint filed by the appellee was insufficient to give the Juvenile Court jurisdiction; that the ex parte emergency custody order is consequently unlawful; and that the appellant is entitled to a writ of habeas corpus to dissolve the unlawful custody.

The language of the complaint is as follows:

“The undersigned, Lillian Hunt, says that she has knowledge of certain children, to-wit: Christopher Steven and David Michael Hunt age 7 and 5 years, respectively * * * who appear to be dependent in that their condition or environment is such as to warrant the state, in the interests of the children, in assuming their guardianship, * * Much of this language is a direct quotation of E. C. 2151.04(C), one of the statutory definitions of a dependent child.

Prior to 1969, E. C. 2151.27 provided that a complaint was “sufficiently definite by using the word * * * dependent * * *, ” and lower courts upheld complaints based upon bare allegations of dependency. In re Anteau (1941), 67 Ohio App. 117, 36 N. E. 2d 47; In re Hayes (1938), 28 Ohio Law Abs. 154; In re Decker (1930), 28 N. P. (N. S.) 433. Effecfive November 19, 1969, R. 0. 2151.27 was amended to require that “in addition to the allegation that the child is ** * dependent * * * the complaint must allege the particular facts upon which the allegation of * * * dependency * * * is based.” The same requirement is repeated in Juv. R. 10(B) (1), which provides that the complaint shall:

“State in ordinary and concise language the essential facts which bring the proceeding within the jurisdiction of the court * *

It is apparent that this complaint, which recites only an allegation of dependency, is insufficient, for it fails to set out any particular facts. The Juvenile Court could make no findings, on the basis of this complaint, that the children were dependent, that the court had jurisdiction, or that the children’s Interest and welfare would require an order of temporary custody under R. C. 2151.33 or Juv. R. 13.

We agree with the appellant that this complaint is defective. We do not agree, however, that a writ of habeas corpus is the proper remedy to challenge the complaint or the emergency custody order based upon it.

Juv. R. 22 provides:

“(A) Pleadings in juvenile proceedings shall be the complaint and the answer, if' any, filed by a party. A party may move to dismiss the complaint or for other appropriate relief.

“(C) No answer shall be necessary. A party may file an answer to the complaint, which, if filed, shall contain specific and concise admissions or denials of each material allegation of the complaint.

“(D) Any defense, objection or request which is capable of determination without hearing on the allegations of the complaint may be raised before the adjudicatory hearing by motion. The following must be heard before the adjudicatory hearing, though not necessarily on a separate date:

“ (1) Defenses or objections based on defects in the institution of the proceedings;

“(2) Defenses or objections based on defects in the complaint (other than failure to show jurisdiction in the court or to charge an offense) which objections shall be noticed by the court at any time during the pendency of the proceeding; * * *”

Under this procedural framework, appellant had the opportunity to file an answer, to file motions to dismiss based upon the insufficiency of the complaint and the failure to show jurisdiction, to file a motion to terminate the temporary order, or to request other relief. No reason appears why the ordinary procedures of answer and motion are not adequate in providing remedies for the claim appellant raises here.

In general, habeas corpus is not available where another adequate remedy exists. “Habeas corpus is an extraordinary remedy and as with every extraordinary remedy is not available as a means of relief where there is an adequate remedy in the ordinary course of the law. In re Burson, 152 Ohio St. 375. Habeas corpus may not be used as a substitute for appeal nor may it be resorted to where an adequate statutory remedy for review of the questions presented exists.” In re Piazza (1966), 7 Ohio St. 2d 102, 103, 218 N. E. 2d 459; In re Clendenning (1945), 145 Ohio St. 82, 60 N. E. 2d 676. Cf. Sunal v. Large (1947), 332 U. S. 174, 177-84.

This case presents no circumstances which would warrant use of the extraordinary remedy of habeas corpus in place of the usual procedures under the Juvenile Rules, or, if necessary, the procedures for appeal. Accordingly, the judgment of the Court of Appeals denying the writ is affirmed.

Judgment affirmed.

O’Neill, C. J., Herbert, Corrigan, W. Brown and P. Brown, JJ., concur.