[Cite as State ex rel. Otten v. Henderson, 129 Ohio St.3d 453, 2011-Ohio-4082.]




              THE STATE EX REL. OTTEN, APPELLANT, v. HENDERSON,
                            MAGISTRATE, ET AL., APPELLEES.
                        [Cite as State ex rel. Otten v. Henderson,
                         129 Ohio St.3d 453, 2011-Ohio-4082.]
Prohibition—Writ sought to prevent probate court, judge, and magistrate from
        proceeding       on     adoption      petition—Probate         court     patently     and
        unambiguously lacked jurisdiction to act—Court of appeals’ dismissal of
        complaint for writ reversed.
(No. 2010-2223—Submitted August 8, 2011—Decided August 18, 2011.)
  APPEAL from the Court of Appeals for Clermont County, No. CA2010-09-070.
                                   __________________
        Per Curiam.
        {¶ 1} This is an appeal from a judgment denying a biological father’s
complaint for a writ of prohibition to prevent the Clermont County Probate Court
and its judge1 and magistrate from proceeding on a stepfather’s adoption petition
when, at the time the petition was filed, a previously filed, separate adoption
proceeding involving the same child initiated in the Hamilton County Probate
Court by the stepfather remained pending. Because under these circumstances,
the Clermont County Probate Court patently and unambiguously lacked
jurisdiction to proceed in the adoption case, we reverse the judgment of the court
of appeals and grant the writ.
                                              Facts




1. Judge Alan R. Corbin is now the acting judge in the Clermont County Probate Court case, so
he is substituted as an appellee for Judge Stephanie Wyler. See State ex rel. Everhart v. McIntosh,
115 Ohio St.3d 195, 2007-Ohio-4798, 874 N.E.2d 516, ¶ 6, citing Civ.R. 25(D).
                            SUPREME COURT OF OHIO




       {¶ 2} This case arises from three overlapping cases — a juvenile court
parentage case involving the biological parents and the child and two separate
probate court adoption cases involving the biological father, the stepfather, and
the child. In July 2005, while married to Jeremy Tuttle, Susan Tuttle, n.k.a. Susan
Crooks (“Susan”), gave birth to P.A.C. Genetic testing conducted in August 2005
established that appellant, Gary Otten, is the child’s biological father. Susan
divorced Tuttle after P.A.C.’s birth, and in April 2007, she married Kevin
Michael Crooks.
                      Clermont County Juvenile Court Case
       {¶ 3} In January 2007, Otten filed a complaint in the Clermont County
Court of Common Pleas, Juvenile Division, for the allocation of parental rights
and responsibilities regarding P.A.C.    Tuttle filed an action against Otten to
establish a parent-and-child relationship in the same court. In April 2007, Crooks
filed a petition to adopt P.A.C. in the Hamilton County Court of Common Pleas,
Probate Division. In August 2007, the juvenile court concluded that it was not in
the best interest of P.A.C. to grant parenting time to Otten because any orders
issued by the court could be superseded by an adoption decree entered by the
Hamilton County Probate Court in the action pending there.          The Clermont
County Juvenile Court declared Otten P.A.C.’s father but stayed any further
action pending the outcome of the adoption proceeding.
       {¶ 4} However, in March 2008, a magistrate for the juvenile court
designated Susan as the residential parent and legal custodian of P.A.C. and
granted Otten guideline parenting time with P.A.C. After Susan’s objections were
overruled, she appealed from the judgment.
       {¶ 5} In June 2009, the court of appeals affirmed the juvenile court’s
judgment awarding Otten guideline parenting time with his daughter, P.A.C.
Otten v. Tuttle, Clermont App. No. CA2008-05-053, 2009-Ohio-3158. In so




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                                January Term, 2011




holding, the court of appeals further ordered that the parenting-time award be
immediately implemented:
       {¶ 6} “Because of excessive delay in this case that has prevented [Otten]
from visiting [P.A.C.] for over two years, we instruct that the juvenile court’s
order awarding [Otten] standard parenting time be put into effect on an immediate
basis with the issuance of this opinion.” Id. at ¶ 17.
       {¶ 7} Instead of implementing the ordered parenting time, Susan moved
to modify the parenting time. In August 2009, the juvenile court amended its
previous order and instituted a graduated schedule to transition to guideline
parenting time. Otten subsequently filed a motion to find Susan in contempt of
the graduated order, which the juvenile court denied in February 2010.
       {¶ 8} Otten appealed the juvenile court orders, and the court of appeals,
in November 2010, reversed the judgment instituting a graduated schedule of
parenting time and again remanded the matter to the juvenile court “with the
unambiguous instruction to grant [Otten] standard parenting time in accordance
with its May 16, 2008 decision immediately.” (Emphasis sic.) Otten v. Tuttle,
Clermont App. No. CA2009-09-055, 2010-Ohio-5424, ¶ 30. The court of appeals
affirmed the judgment denying Otten’s motion to find Susan in contempt. Id. at ¶
35.
                       Hamilton County Probate Court Case
       {¶ 9} In April 2007, shortly after Susan married Crooks, and while the
action to establish a parent-and-child relationship was pending in the Clermont
County Juvenile Court, Crooks filed a petition to adopt P.A.C. in the Hamilton
County Probate Court. In the petition, Crooks stated that the consent of Tuttle,
whom he listed as the “presumed legal father” of P.A.C., was not required,
because Tuttle was not the biological father of the child. The petition did not
name Otten as the biological father of the child or specify why his consent was
not required.   Otten intervened and moved to stay or dismiss the adoption



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proceeding; the probate court then stayed the proceeding pending a determination
in the juvenile court proceeding.
       {¶ 10} Once the juvenile court determined that Otten was P.A.C.’s
biological father and granted him parenting time in May 2008, the probate court
dismissed Crooks’s adoption petition because Otten’s consent was necessary for
the adoption. Crooks appealed the dismissal. In February 2009, Crooks filed an
amended petition to adopt P.A.C. in the Hamilton County Probate Court. In his
amended petition, Crooks listed Otten as the child’s putative father and father and
stated that Otten’s consent was unnecessary for the adoption because Otten “has
failed without justifiable cause to communicate with the minor for a period of at
least one year immediately preceding the filing of the adoption or the placement
of the minor in the home of the petitioner” and “has failed without justifiable
cause 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 immediately preceding the filing
of the adoption petition or the placement of the minor in the home of the
petitioner.”
       {¶ 11} On Crooks’s appeal from the probate court’s judgment dismissing
his original adoption petition, the court of appeals, in September 2009, reversed
the dismissal because Otten had failed to timely register as P.A.C.’s father on the
putative-father registry and thus his consent to the adoption was not required. In
re Adoption of P.A.C., 184 Ohio App.3d 88, 2009-Ohio-4492, 919 N.E.2d 791, ¶
30.
       {¶ 12} On July 22, 2010, we reversed the judgment of the court of appeals
and held that the Hamilton County Probate Court had acted properly in initially
staying the adoption proceeding pending the Clermont County Juvenile Court’s
determination of parentage and in ultimately dismissing Crooks’s original
adoption petition because Otten had been adjudicated the biological father of
P.A.C. by the juvenile court and had not consented to the adoption.            In re



                                         4
                                January Term, 2011




Adoption of P.A.C., 126 Ohio St.3d 236, 2010-Ohio-3351, 933 N.E.2d 236.
Crooks moved for reconsideration of our decision, and in October 2010, we
denied the motion. 126 Ohio St.3d 1592, 2010-Ohio-4880, 934 N.E.2d 939.
       {¶ 13} On September 20, 2010, Crooks withdrew his amended adoption
petition. The probate court set a hearing for December 30, 2010, to determine
whether Crooks wanted to proceed on his original adoption petition. In February
2011, the probate court denied Otten’s objections to the magistrate’s decision and
specified that the adoption proceeding was closed.
                       Clermont County Probate Court Case
       {¶ 14} On July 28, 2010, six days after we issued our decision in P.A.C.,
126 Ohio St.3d 236, 2010-Ohio-3351, 933 N.E.2d 236, but before a mandate was
issued in that case, Crooks filed a petition in the Clermont County Court of
Common Pleas, Probate Division, to adopt P.A.C. In this petition, Crooks stated
that the consent of Otten to the adoption was not required, because he “has failed
without justifiable cause to provide more than de minimis contact with the minor
for a period of at least one year immediately preceding the filing of the adoption
or the placement of the minor in the home of” Crooks, he “has failed without
justifiable cause 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 immediately
preceding the filing of the adoption petition or the placement of the minor in the
home of the petitioner,” and “the adoption is in the child’s best interest.”
       {¶ 15} The probate court scheduled the matter for a hearing, and Otten
filed an objection to the court’s jurisdiction because the adoption proceeding
initiated in the Hamilton County Probate Court was pending.
                                  Prohibition Case
       {¶ 16} On September 20, 2010, Otten filed an action for writs of
prohibition and mandamus challenging the jurisdiction of the Clermont County
Probate Court over Crooks’s adoption petition. In an amended complaint, Otten



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sought a writ of prohibition to prevent appellees, the Clermont County Probate
Court and its judge and magistrate, from proceeding on the adoption petition and
to immediately dismiss the petition.         After appellees submitted an answer
admitting all matters of public record and denying any remaining claims, the court
of appeals denied the writ.
       {¶ 17} Otten appealed the court of appeals’ judgment, but we granted his
motion to remand the cause to the court of appeals to rule on his motion for relief
from judgment. State ex rel. Otten v. Henderson, 127 Ohio St.3d 1544, 2011-
Ohio-647, 941 N.E.2d 801. On March 30, 2011, the court of appeals denied the
motion. We then reinstated a briefing schedule. 128 Ohio St.3d 1440, 2011-
Ohio-1642, 944 N.E.2d 691.
       {¶ 18} This cause is now before the court on Otten’s appeal as of right.
                                  Legal Analysis
                                     Motions
       {¶ 19} We deny Otten’s request for oral argument because the facts are
not overly complex and the parties’ and amicus curiae’s briefs are sufficient for
the court to resolve this appeal on the merits. See generally State ex rel. Davis v.
Pub. Emps. Retirement Bd., 111 Ohio St.3d 118, 2006-Ohio-5339, 855 N.E.2d
444, ¶ 16.
       {¶ 20} We also grant Judge Corbin’s motion to expedite our resolution of
this case because this appeal relates to issues concerning the potential termination
of Otten’s parental rights in the underlying adoption proceeding, a circumstance
that would normally necessitate expedited briefing and consideration under
S.Ct.Prac.R. 6.2(A)(1), 6.3(A)(1), and 6.4(A)(1).
                                    Prohibition
       {¶ 21} To be entitled to the requested writ of prohibition, Otten had to
establish that (1) the Clermont County Probate Court and its judge and magistrate
were about to exercise judicial power, (2) the exercise of that power was



                                         6
                               January Term, 2011




unauthorized by law, and (3) denying the writ would result in injury for which no
adequate remedy exists in the ordinary course of law. State ex rel. Cleveland v.
Sutula, 127 Ohio St.3d 131, 2010-Ohio-5039, 937 N.E.2d 88, ¶ 13. The probate
court and its judge and magistrate have exercised and would continue to exercise
judicial power in the underlying adoption proceeding.         Probate courts have
exclusive original jurisdiction over adoption proceedings. See In re Adoption of
Ridenour (1991), 61 Ohio St.3d 319, 324, 574 N.E.2d 1055; State ex rel. Portage
Cty. Welfare Dept. v. Summers (1974), 38 Ohio St.2d 144, 151, 67 O.O.2d 151,
311 N.E.2d 6 (“original and exclusive jurisdiction over adoption proceedings is
vested specifically in the Probate Court pursuant to R.C. Chapter 3107”).
       {¶ 22} For the remaining requirements, “[i]f a lower court patently and
unambiguously lacks jurisdiction to proceed in a cause, prohibition * * * will
issue to prevent any future unauthorized exercise of jurisdiction and to correct the
results of prior jurisdictionally unauthorized actions.” State ex rel. Mayer v.
Henson, 97 Ohio St.3d 276, 2002-Ohio-6323, 779 N.E.2d 223, ¶ 12; Rosen v.
Celebrezze, 117 Ohio St.3d 241, 2008-Ohio-853, 883 N.E.2d 420, ¶ 18. “Where
jurisdiction is patently and unambiguously lacking, relators need not establish the
lack of an adequate remedy at law because the availability of alternate remedies
like appeal would be immaterial.” State ex rel. Sapp v. Franklin Cty. Court of
Appeals, 118 Ohio St.3d 368, 2008-Ohio-2637, 889 N.E.2d 500, ¶ 15; State ex
rel. Furnas v. Monnin, 120 Ohio St.3d 279, 2008-Ohio-5569, 898 N.E.2d 573, ¶
11.
       {¶ 23} Therefore, the dispositive issue is whether the Clermont County
Probate Court patently and unambiguously lacked jurisdiction over Crooks’s
petition to adopt P.A.C. when the adoption proceeding filed in Hamilton County
was pending at the time he filed his Clermont County adoption case.
       {¶ 24} Under the jurisdictional-priority rule, “ ‘[a]s between [state] courts
of concurrent jurisdiction, the tribunal whose power is first invoked by the



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institution of proper proceedings acquires jurisdiction, to the exclusion of all other
tribunals, to adjudicate upon the whole issue and to settle the rights of the
parties.’” State ex rel. Racing Guild of Ohio v. Morgan (1985), 17 Ohio St.3d 54,
56, 17 OBR 45, 476 N.E.2d 1060, quoting State ex rel. Phillips v. Polcar (1977),
50 Ohio St.2d 279, 4 O.O.3d 445, 364 N.E.2d 33, syllabus. “In general, the
jurisdictional priority rule applies when the causes of action are the same in both
cases, and if the first case does not involve the same cause of action or the same
parties as the second case, the first case will not prevent the second.” State ex rel.
Shimko v. McMonagle (2001), 92 Ohio St.3d 426, 429, 751 N.E.2d 472; State ex
rel. Brady v. Pianka, 106 Ohio St.3d 147, 2005-Ohio-4105, 832 N.E.2d 1202, ¶
13.
       {¶ 25} The court of appeals determined that the adoption case instituted
by the child’s stepfather in the Hamilton County Probate Court did not patently
and unambiguously divest the Clermont County Probate Court of jurisdiction over
the subsequently filed adoption proceeding filed by the child’s stepfather, because
they focused on different issues concerning whether consent was required:
       {¶ 26} “While both adoption petitions involve the same petitioner and the
same minor child, the Hamilton County petition focuses on whether the consent
of Jeremy Tuttle is required, while the Clermont County petition focuses on
whether the consent of Gary Otten is required. In this respect, the petitions are
not identical and raise completely different issues with respect to consent to
adoption.”
       {¶ 27} The court of appeals erred in so holding for the following reasons.
       {¶ 28} First, the adoption proceeding filed in the Hamilton County
Probate Court involved the same parties — Crooks, Otten, and P.A.C. — and the
same cause of action — Crooks’s requested adoption of P.A.C. — as Crooks’s
subsequently filed adoption case in the Clermont County Probate Court. These
are not cases that involve different parties or different causes of action so as to



                                          8
                                January Term, 2011




generally preclude the application of the jurisdictional-priority rule. See State ex
rel. Judson v. Spahr (1987), 33 Ohio St.3d 111, 113-114, 515 N.E.2d 911; State
ex rel. Maxwell v. Schneider (1921), 103 Ohio St. 492, 134 N.E. 443. The rule
requires only that the causes of action generally be the same.             As noted
previously, the causes of action here — adoption — are the same.
        {¶ 29} Second, the jurisdictional-priority rule applies even when the
causes of action are not the same if the suits present part of the same “whole
issue.” State ex rel. Sellers v. Gerken (1995), 72 Ohio St.3d 115, 117, 647 N.E.2d
807, citing Phillips, 50 Ohio St.2d 279, 4 O.O.3d 445, 364 N.E.2d 33, and John
Weenink & Sons Co. v. Cuyahoga Cty. Court of Common Pleas (1948), 150 Ohio
St. 349, 38 O.O. 189, 82 N.E.2d 730 (“we have at times recognized the
applicability of the priority rule where the causes of action and relief requested
are not exactly the same”). Here, the stepfather’s adoption petitions include not
only the same parties and same causes of action; they also present the same
issue—whether Crooks can adopt P.A.C. without Otten’s consent.
        {¶ 30} Third, the court of appeals erred in finding that the adoption cases
did not raise the same issue. At the time Crooks filed his Clermont County
Probate Court adoption case, the proceedings initiated in the Hamilton County
Probate Court were still pending, and the petition filed in Hamilton County
similarly alleged that Otten’s consent to the adoption was not required because of
his failure to communicate with and support the child in the year preceding the
filing of the petition.
        {¶ 31} In applying the jurisdictional-priority rule in the context of
proceedings involving the termination of parental rights, we are guided by the
precept that “[t]he right of a parent to the custody of his or her child is one of the
oldest fundamental liberty interests recognized by American courts.”            In re
Thompkins, 115 Ohio St.3d 409, 2007-Ohio-5238, 875 N.E.2d 582, ¶ 10. “[T]he
right of a natural parent to the care and custody of his children is one of the most



                                          9
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precious and fundamental in law.” In re Adoption of Masa (1986), 23 Ohio St.3d
163, 165, 23 OBR 330, 492 N.E.2d 140. Therefore, parents must be accorded
every legally available protection before their parental rights are terminated.
Thompkins at ¶ 11.
        {¶ 32} Consistent with the foregoing precedent, we have recognized “the
bedrock proposition that once a court of competent jurisdiction has begun the task
of deciding the long-term fate of a child, all other courts are to refrain from
exercising jurisdiction over that matter.” In re Adoption of Asente (2000), 90
Ohio St.3d 91, 92, 734 N.E.2d 1224. Until the first court with jurisdiction over
the matter has relinquished jurisdiction, the second court lacks jurisdiction. The
party seeking adoption must wait to file a subsequent petition. See id. at 104.
        {¶ 33} Because at the time that Crooks filed his successive adoption
petition in the Clermont County Probate Court, the action initiated in Hamilton
County Probate Court was still pending — and remained so until just recently —
the Clermont County Probate Court lacked jurisdiction to proceed on the adoption
petition filed there. Otten had no duty to file objections to Crooks’s adoption
petition in Clermont County because the Clermont County Probate Court lacked
jurisdiction over the petition.
        {¶ 34} As amicus curiae argues, Otten’s “argument is not one of mere
technicality. Allowing overlapping adoption petitions wrongly forces a
respondent/parent to keep objecting to adoption petitions that appear identical to a
pending adoption petition to which he has already timely objected. A petitioner
can then keep filing overlapping adoption petitions until the parent neglects to
object timely, makes some other misstep, or simply becomes exhausted or
confused, as happened here.       Avoiding that endless litigation and procedural
abuse is a main reason for the ‘one child and one court’ rule.”
        {¶ 35} In fact, that is what happened here. While the Hamilton County
adoption case was still pending and matters in the Clermont County Juvenile



                                         10
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Court case were also being resolved, Crooks filed an adoption proceeding in the
Clermont County Probate Court, and Otten, who was appearing pro se in some of
these cases, apparently did not object to the newly filed petition until a month
after it was due, when he raised his claim that the Clermont County Probate Court
lacked jurisdiction. Terminating a natural parent’s fundamental right to care and
custody of his or her child should not be subject to such acts of gamesmanship
intended to trap the unwary.
        {¶ 36} Based on the foregoing, the Clermont County Probate Court and its
judge and magistrate patently and unambiguously lacked jurisdiction over the
adoption petition filed in that court, and the Clermont County Probate Court
should have upheld Otten’s jurisdictional challenge to the proceeding and
dismissed it. Otten established the requirements for the requested extraordinary
relief in prohibition.
                                    Conclusion
        {¶ 37} Because the court of appeals erred in denying the writ, we reverse
the judgment of the court of appeals and grant the writ of prohibition to prevent
the Clermont County Probate Court from proceeding on Crooks’s adoption
petition and to compel the probate court to dismiss it. The probate court also
patently and unambiguously lacked jurisdiction to proceed in the adoption case
because of visitation issues in the juvenile court case that were still being resolved
when the adoption case was filed. “ ‘When an issue concerning parenting of a
minor is pending in the juvenile court, a probate court must refrain from
proceeding with the adoption of that child.’ ” In re Adoption of G.V., 126 Ohio
St.3d 249, 2010-Ohio-3349, 933 N.E.2d 245, ¶ 8, certiorari denied, Vaughn v.
Wyrembek (2011), __ U.S. __, 131 S.Ct. 1610, 179 L.Ed.2d 501, quoting In re
Adoption of Pushcar, 110 Ohio St.3d 332, 2006-Ohio-4572, 853 N.E.2d 647,
syllabus.
                                                                  Judgment reversed



                                         11
                            SUPREME COURT OF OHIO




                                                                 and writ granted.
       O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O’DONNELL,
LANZINGER, and MCGEE BROWN, JJ., concur.
       CUPP, J., concurs in judgment only.
                             __________________
       Maxwell D. Kinman, for appellant.
       Donald W. White, Clermont County Prosecuting Attorney, and David H.
Hoffmann, Assistant Prosecuting Attorney, for appellees.
       Erik L. Smith, urging reversal for amicus curiae, Erik L. Smith.
                           ______________________




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