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rejecting a habeas petition challenging the court's subject-matter jurisdiction to issue an adoption where there was an alleged defect in consent; concluding that "once a final determination has been made that the parents validly consented to the adoption, that determination removes the basis for a habeas corpus attack on the ground that the court ordering the adoption lacked subject matter jurisdiction"
Summary of this case from Adoption B.B. v. R.K.B.Opinion
No. 88-1857
Submitted August 15, 1989 —
Decided October 25, 1989.
Adoption — Parental consent to an adoption order is the jurisdictional prerequisite which, if absent, allows the order to be attacked as void in a habeas corpus proceeding — Consent must be knowingly and voluntarily surrendered.
APPEAL from the Court of Appeals for Cuyahoga County, No. 56237.
Appellant, Sharon McGinty, age twenty-four, is the natural mother of Brian McGinty, who is now four years old. On August 12, 1987, when Brian was two years of age, Sharon signed Form ODHS 1666, Permanent Surrender of Child, giving permanent custody of her son to appellee, the Jewish Children's Bureau ("bureau"), a private agency that provides a variety of services to adolescents, including arranging adoptions. Sharon also signed a waiver of legal counsel, and an affidavit acknowledging that the surrender was her voluntary act.
For approximately a year prior to relinquishing custody of Brian in this manner, Sharon had consulted with Sandra Redmond, the bureau's adoption supervisor, regarding Brian's care. In response to Sharon's request for help, Redmond arranged for Sharon, who was not married, and Brian to stay with a foster family in September 1986. Sharon found the arrangement unsatisfactory after only a few days and returned to her parents' home. In June 1987, Redmond arranged for Sharon and Brian to move from Sharon's parents' home to an apartment so that Sharon could try being a single parent on her own; however, Sharon lived in the apartment for only a few months. Redmond also attempted to secure jobs for Sharon, but Sharon was unable to remain employed for long at that time.
In February 1987, Redmond and Sharon began looking for a couple to care for Brian. According to Redmond, she and Sharon planned for the couple to adopt Brian. According to Sharon, the couple was to provide foster care until she made a firm decision about surrendering Brian's custody.
Redmond and Sharon considered a number of couples, but some did not agree to the conditions of the plan with which Sharon felt comfortable. These conditions included a "phasing-in" period of several months, that Sharon meet with the couple during this period, that Brian keep his name, and that Brian be permitted to visit Sharon if he wanted to after he became of age. Redmond ultimately found such a couple, however, in June 1987. After the initial "phasing-in" period, Brian went to live with the couple on or about September 7, 1987.
Within days after she gave up Brian, Sharon spoke with a friend about what she had done. Sharon told her friend that she had only agreed to foster care for Brian and that she still had six months to reclaim him before the adoption became final. After looking at the permanent surrender form that Sharon had signed, however, the friend explained to Sharon that Sharon had misunderstood the arrangement, and that she now had "no rights" to Brian.
Thereafter, Sharon attempted to revoke her surrender, and thus her consent to Brian's adoption, in the Court of Common Pleas of Summit County. Sharon claimed that she had agreed to temporary foster care for Brian, not to a permanent surrender of custody. In an August 1988 report, a referee of the common pleas court's probate division found that Sharon had become dissatisfied with caring for Brian in her parents' home, and that Sharon had initially approached the bureau to arrange Brian's adoption. The referee also found that Sharon had continued to speak about formulating a plan for Brian's adoption all during the time that she and Redmond had explored other alternatives for Brian's care. The referee further found that the adoption plan was kept a secret from Sharon's parents at Sharon's request. The referee determined that Sharon had not been under any disability when she signed the adoption papers on August 12, 1987, that the papers' significance had been fully explained to her before she signed them, that Sharon had read the papers, and that Sharon had understood the papers to be "more serious" than any other documents she had signed. The referee also noted that Sharon had signed false affidavits on two prior occasions. The referee therefore recommended that the revocation of consent be denied.
The common pleas court adopted the referee's report and recommendation on November 17, 1988. The common pleas court's decision was affirmed on appeal in In re Placement of McGinty (Apr. 26, 1989), Summit App. No. 13926, unreported. This court recently declined review in that case. See 44 Ohio St.3d 714, 542 N.E.2d 1110.
On August 12, 1988, Sharon filed a petition in habeas corpus against the bureau and Brian's adoptive parents, "John and Mary Doe," in the Court of Appeals for Cuyahoga County. A hearing on her petition was held just six days later, on August 18. By a journal entry filed August 22, 1988, the court of appeals denied Sharon's petition. It found insufficient grounds for setting aside the permanent surrender of Brian's custody. Sharon appeals, and the cause is now before this court as of right.
John L. Wolfe, Edward M. Graham and Nancy Grim, for appellant.
Chattman, Garfield, Friedlander Paul and Douglas J. Paul, for appellee.
The primary question before the Summit County Court of Appeals in case No. 13926, the appeal involving Sharon's request to revoke her consent, was whether Sharon had executed a knowing and voluntary surrender. That question is also at the heart of the instant case, as parental consent to an adoption order is the jurisdictional prerequisite which, if absent, allows the order to be attacked as void in a habeas corpus proceeding. See In re Ramsey (1956), 164 Ohio St. 567, 571, 58 O.O. 431, 434, 132 N.E.2d 469, 473; Manning v. Miami Cty. Children's Services Bd. (1985), 18 Ohio St.3d 211, 212-213, 18 OBR 273, 275, 480 N.E.2d 770, 772; Morrow v. Family Community Serv. of Catholic Charities, Inc. (1986), 28 Ohio St.3d 247, 252, 28 OBR 327, 331, 504 N.E.2d 2, 5-6.
As a result, Sharon raises three arguments here that were also urged to obtain our review of case No. 13926. The first argument common to both cases is that she was denied equal protection because former R.C. 5103.15 (see 140 Ohio Laws, Part I, 1791, 1836) allowed private state-certified adoption agencies to secure parental consent to a permanent surrender of child custody without court approval, whereas R.C. 5153.16(B) requires juvenile court approval when the permanent custody of a child is being transferred to a county children services board or department of human services. (R.C. 5103.15[B][1], as amended effective January 1, 1989, now requires court approval for both public and private permanent surrenders of custody, except when a child less than six months old is being surrendered to a private agency.) The second argument is that she was denied due process because her surrender of Brian's custody was not knowing and voluntary and was not accomplished with court supervision, and because she was discouraged from seeking legal counsel beforehand. The third argument is that the permanent surrender is invalid because the bureau did not fully comply with administrative regulations requiring it (1) to make sure she thoroughly understood her legal rights, (2) to explore other reasonable and less drastic alternatives to adoption, and (3) to make sure that both parents agreed to the surrender.
In a fourth argument not made in connection with case No. 13926, Sharon asserts that the Court of Appeals for Cuyahoga County denied her fundamental justice by holding a hearing on her habeas corpus petition so soon after it was filed. To this end, she complains that she did not have adequate time to prepare because she was only notified of the hearing date in writing that morning and because the record of the Summit County Probate Court hearing had not yet been transcribed. She also contends that the haste of the court's proceedings and the brevity of its opinion reflect an inattention to the gravity of her position, especially since her constitutional arguments were never addressed.
In paragraph two of the syllabus of In re Hunt (1976), 46 Ohio St.2d 378, 75 O.O. 2d 450, 348 N.E.2d 727, we held that:
"A writ of habeas corpus will ordinarily be denied where there is an adequate remedy in the ordinary course of law." Accord Beard v. Williams Cty. Dept. of Social Services (1984), 12 Ohio St.3d 40, 42, 12 OBR 35, 36, 465 N.E.2d 397, 399.
As a practical matter, the relief requested in this case is identical to the relief Sharon sought in her action to revoke her consent to the permanent surrender of Brian's custody. It is therefore clear that a complete remedy was available to her in that case. Moreover, Sharon's position, with the exception of her argument regarding the nature of the proceedings below, has already received appellate review, the result of which was a final determination that she validly consented to the permanent surrender of her child. In Morrow v. Family Community Serv. of Catholic Charities, Inc., supra, at 252, 28 OBR at 331, 504 N.E.2d at 5-6, we found that once a final determination has been made that the parents validly consented to the adoption, that determination removes the basis for a habeas corpus attack on the ground that the court ordering the adoption lacked subject matter jurisdiction. Thus, it is also clear that the basis for Sharon's habeas corpus action no longer exists.
Sharon's action to revoke her consent and the review afforded her in that case thus gives us two related reasons for affirming the decision to deny her a writ of habeas corpus. The first is that she had a remedy in the ordinary course of law; the second is that by unsuccessfully pursuing that remedy, the foundation for her habeas corpus action was destroyed. Furthermore, we find that Sharon had a complete opportunity to present the three major arguments advanced in this case in the Summit County appeal. Therefore, Sharon has not been denied fundamental justice even if she was not given the same opportunity to present these arguments again before the lower court in this case.
Accordingly, the judgment of the court of appeals is affirmed.
Judgment affirmed.
MOYER, C.J., SWEENEY, HOLMES, DOUGLAS, WRIGHT, H. BROWN and RESNICK, JJ., concur.