Opinion
No. 91-686
Submitted April 14, 1992 —
Decided July 22, 1992.
APPEAL from the Court of Appeals for Miami County, No. 90-CA-29.
On May 15, 1989, appellant, Theresa McNeal, voluntarily surrendered temporary custody of her two minor children to appellee, Miami County Children's Services Board ("board"). The children were returned to McNeal on June 15, 1989; however, on June 20, 1989, the board filed a complaint in the Court of Common Pleas of Miami County, Juvenile Division ("trial court"), alleging that the children were dependent. An adjudicatory hearing was held on July 18, 1989. McNeal and the children's father, Mark Lehman, agreed to a disposition under which McNeal retained custody, but the board exercised "protective supervision" over the children. The entry set a further dispositional hearing for June 6, 1990, and stated that the protective supervision would terminate on June 20, 1990 unless a motion for modification, extension, or termination was filed by May 6, 1990.
On December 8, 1989, a caseworker for the board filed an abuse complaint with an affidavit for emergency temporary custody. The board obtained emergency temporary custody until January 2, 1990, when the trial court ordered the children returned to McNeal, again under the board's protective supervision. The trial court's entry to this effect was journalized on January 5, 1990.
On January 30, 1990, the board filed a motion for dispositional review and again requested that it be awarded temporary custody of the children. On January 31, the board dismissed the abuse complaint filed on December 8.
On February 14, 1990, the trial court held the dispositional review hearing on the request for temporary custody, and, on March 15, 1990, filed its entry granting temporary custody to the board, removing the children from McNeal's home, and placing them in foster care. This entry also set a further dispositional hearing for June 6, 1990 and stated that the temporary custody order would terminate on June 20, 1990, unless a motion for modification, extension, or termination was filed by May 6, 1990, the same as in the original entry.
On May 7, 1990, the board filed a motion for modification of the temporary custody order to permanent custody. On May 23, an attorneys' conference was held before the referee who had also conducted the dispositional hearing that resulted in the March 15 temporary custody entry. The referee stated that the dispositional dates set forth in the March 15 entry (June 6, and 20) should be changed to reflect the changed status of the case to one of temporary custody with the board. On June 7, 1990, the trial court, without a hearing and with only the informal notice afforded by the attorneys' conference, filed an entry amending its March 15 entry, resetting the dispositional review hearing for January 22, 1991 (instead of June 6, 1990) and stating that the order for temporary custody would terminate on January 30, 1991 (instead of June 20, 1990) unless a motion for modification, extension or termination was filed by December 23, 1990 (instead of May 6, 1990). This had the substantive effect of extending the period of temporary custody by about seven months before automatic termination of the temporary custody order.
McNeal then filed this action in habeas corpus in the Court of Appeals for Miami County on July 25, 1990. McNeal and the board filed motions for summary judgment. On December 6, 1990, the court of appeals denied both motions for summary judgment. The case was then assigned to a referee, who issued her report and recommendation on January 7, 1991, recommending that the writ be denied because McNeal had an adequate remedy at law through appeal and because R.C. 2151.353(F) permitted the court to reset the automatic termination date without a hearing.
R.C. 2151.353(F) provides:
"Any temporary custody order issued pursuant to division (A) of this section shall terminate one year after the earlier of the date on which the complaint in the case was filed or the child was first placed into shelter care, except that, upon the filing of a motion [for a dispositional order] pursuant to section 2151.415 of the Revised Code, the temporary custody order shall continue and not terminate until the court issues a dispositional order under that section."
On February 12, 1991, the court of appeals adopted the referee's report and recommendation and denied the writ. Thereafter, McNeal appealed to this court.
The cause is before the court upon an appeal as a matter of right.
J. Richard Gaier Co., L.P.A., and Tod A. Cyester, for appellant.
Jeffrey M. Welbaum, Prosecuting Attorney, and Janet R. Becht, for appellee.
Carol E. Greenwald, pro se, guardian ad litem.
We affirm the judgment of the court of appeals on the basis that McNeal had an adequate remedy at law through appeal.
In In re Davis (1985), 18 Ohio St.3d 226, 18 OBR 285, 480 N.E.2d 775, we affirmed earlier cases holding that habeas corpus may not be used as a substitute for appeal. The trial court's March 15, 1990 order granting temporary custody to the board was a final, appealable order, In re Murray (1990), 52 Ohio St.3d 155, 556 N.E.2d 1169, and McNeal did appeal. App.R. 3(E) authorizes a court of appeals to allow the amendment of a timely filed notice of appeal "within its discretion and upon such terms as are just * * *." The June 7, 1990 entry substantively amended the March 15, 1990 order so that a review hearing on the temporary custody order of March 15, 1990 was put off for seven months. Therefore, McNeal could and should have been allowed to amend her notice of appeal, if amendment were necessary, to include that issue. Instead, she elected to file a new habeas corpus action.
We have allowed habeas corpus actions to proceed in child custody actions where appeal was not speedy enough. See Marich v. Knox Cty. Dept. of Human Serv. (1989), 45 Ohio St.3d 163, 543 N.E.2d 776. However, habeas corpus relief is the exception. Marich involved the permanent surrender of an infant, which made speedy resolution of utmost importance. In this case, McNeal bypassed an appeal she had already filed and initiated yet another case to seek relief. Under these circumstances, we find no reason to depart from the general rule that appeal is an adequate remedy at law.
Since McNeal had an adequate remedy at law through appeal, we affirm the decision of the court of appeals solely on that basis.
The board's motion to dismiss the petition on various grounds is overruled.
Judgment affirmed.
MOYER, C.J., SWEENEY, HOLMES, DOUGLAS, WRIGHT, H. BROWN and RESNICK, JJ., concur.