[Cite as State ex rel. Roush v. Montgomery, 2018-Ohio-2098.]
                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT


State ex rel. Robert B. Roush,                        :

                Relator,                              :

v.                                                    :             No. 17AP-791

Robert G. Montgomery, Judge,                          :          (REGULAR CALENDAR)
Franklin County Probate Court,
                                                      :
                Respondent.
                                                      :



                                         D E C I S I O N

                                      Rendered on May 31, 2018


                On brief: Robert B. Roush, pro se.

                On brief: Ron O'Brien, Prosecuting Attorney, and Arthur J.
                Marziale, Jr., for respondent.


                         IN PROHIBITION AND/OR MANDAMUS
                    ON OBJECTIONS TO THE MAGISTRATE'S DECISION

BROWN, P.J.

        {¶1}    Relator, Robert B. Roush, an inmate of the Ross Correctional Institution
("RCI"), requests a writ of prohibition and/or mandamus ordering respondent, the
Honorable Robert G. Montgomery, Judge of the Franklin County Probate Court to
dismiss an adoption proceeding in which the adoption petitioner claims relator's consent
to the adoption is not required under R.C. 3107.07(A). Judge Montgomery has filed a
motion to dismiss.
        {¶2}    This matter was referred to a court-appointed magistrate pursuant to Civ.R.
53 and Loc.R. 13(M) of the Tenth District Court of Appeals. The magistrate has issued the
appended decision, including findings of fact and conclusions of law, and has
No. 17AP-791                                                                                2


recommended this court grant the motion to dismiss filed by Judge Montgomery. Relator
has filed objections to the magistrate's decision.
       {¶3}    In order to obtain a writ of mandamus, relator would be required to
demonstrate that: (1) he has a clear legal right to the relief prayed for, (2) Judge
Montgomery is under a clear legal duty to perform the act requested, and (3) relator has
no plain and adequate remedy in the ordinary course of law. State ex rel. Thompson v.
Ohio Adult Parole Auth., 10th Dist. No. 10AP-24, 2011-Ohio-429, ¶ 23, citing State ex rel.
Berger v. McMonagle, 6 Ohio St.3d 28, 29 (1983).
       {¶4}    A writ of prohibition is an extraordinary judicial writ issuing out of a court
of superior jurisdiction and directed to an inferior tribunal commanding it to cease
abusing or usurping judicial functions. State ex rel. Jones v. Suster, 84 Ohio St.3d 70, 73
(1998). In other words, the purpose of the writ of prohibition is to restrain inferior courts
and tribunals from exceeding their jurisdiction. Id. For the writ of prohibition to issue, the
relator must prove that: (1) the lower court is about to exercise judicial authority, (2) the
exercise of authority is not authorized by law, and (3) the relator has no other adequate
remedy in the ordinary course of law if a writ of prohibition is denied. State ex rel. Keenan
v. Calabrese, 69 Ohio St.3d 176, 178 (1994).
       {¶5}    With regard to Judge Montgomery's motion to dismiss relator's request for
a writ of prohibition, the magistrate found that: (1) the probate court has jurisdiction to
render a determination under R.C. 3107.07(A) as to whether relator has failed without
justifiable cause to provide more than de minimis contact with the minor for a period of at
least one year, and (2) should the probate court render a determination pursuant to R.C.
3107.07(A) that is unfavorable to relator, he has an adequate remedy at law by way of
appeal. With regard to Judge Montgomery's motion to dismiss relator's request for a writ
of mandamus, the magistrate found that mandamus cannot be used to control judicial
discretion, and relator seeks to control Judge Montgomery's judicial discretion in
determining whether relator's consent to the adoption is required under R.C. 3107.07(A).
       {¶6}    In his objections, relator argues the following: (1) a writ will lie to compel
compliance with a statute or other legal provision, and Judge Montgomery has exceeded
his authority by ruling counter to statute, and (2) an appeal of Judge Montgomery's
decision is not a plain and adequate remedy because following the normal appellate
No. 17AP-791                                                                               3


procedure would mean the adoption would have already been ordered, relator would have
lost all parental rights, and relator would be forced to await lengthy appeals.
       {¶7}    After reviewing relator's objections, we find the magistrate properly granted
Judge Montgomery's motion to dismiss. Relator admitted in his memorandum contra
Judge Montgomery's motion to dismiss that he was already a party to the adoption
proceedings before Judge Montgomery. Thus, he can adequately represent his rights in
those proceedings and appeal any adverse decision. That an appeal would not afford
instant relief, as a writ would, does not render the right of appeal an inadequate remedy.
State ex rel. Casey Outdoor Advertising, Inc. v. Ohio Dept. of Transp., 61 Ohio St.3d 429,
432 (1991), citing State ex rel. Willis v. Sheboy, 6 Ohio St.3d 167 (1983), paragraph one of
the syllabus (the inconvenience of a delay does not render an appeal an inadequate
remedy for purposes of seeking an extraordinary writ). See also State ex rel. D.H. v.
Gorman, 2d Dist. No. 27067, 2016-Ohio-5269, citing State ex rel. McGinty v. Eighth Dist.
Court of Appeals, 142 Ohio St.3d 100, 2015-Ohio-937, ¶ 16 (the delay inherent in an
appeal does not render that appeal an inadequate remedy). Furthermore, although relator
argues Judge Montgomery has violated a statute, the adoption case remains pending
before the probate court, and any argument he has with regard to that court's power
under a particular statute may be asserted before that court. Insomuch as relator may be
anticipating an allegedly erroneous and adverse judgment, a writ will not be awarded to
prevent an anticipated erroneous judgment when a court has full and complete
jurisdiction of the subject-matter of the action pending. State ex rel. Caley v. Tax Comm.
of Ohio, 129 Ohio St. 83, 88 (1934), citing State ex rel. Carmody v. Justice, 114 Ohio St. 94
(1926). A probate court clearly has authority to determine an adoption and render a
determination pursuant to R.C. 3107.07(A). See In re Adoption of Pushcar, 110 Ohio
St.3d 332, 2006-Ohio-4572, ¶ 9 (holding that it is well-established that the original and
exclusive jurisdiction over adoption proceedings is vested in the probate court).
Therefore, for the foregoing reasons, we find relator's objections without merit.
       {¶8}    Accordingly, after an examination of the magistrate's decision, an
independent review of the record pursuant to Civ.R. 53, and due consideration of relator's
objections, we overrule his objections and adopt the magistrate's findings of fact and
No. 17AP-791                                                                        4


conclusions of law. Judge Montgomery's motion to dismiss is granted and the action is
dismissed.
                                               Objections overruled; action dismissed.

                   LUPER SCHUSTER and BRUNNER, JJ., concur.

                             ___________________
No. 17AP-791                                                                          5


                                          APPENDIX

                           IN THE COURT OF APPEALS OF OHIO

                              TENTH APPELLATE DISTRICT

The State ex rel. Robert B. Roush,             :

               Relator,                        :

v.                                             :                     No. 17AP-791

Robert G. Montgomery, Judge,                   :                (REGULAR CALENDAR)
Franklin County Probate Court,
                                               :
               Respondent.
                                               :


                            MAGISTRATE'S DECISION

                               Rendered on January 19, 2018


               Robert B. Roush, pro se.

               Ron O'Brien, Prosecuting            Attorney,   and   Arthur   J.
               Marziale Jr., for respondent.


                           IN PROHIBITION AND/OR MANDAMUS
                          ON RESPONDENT'S MOTION TO DISMISS

      {¶9}     In this original action, relator, Robert B. Roush, an inmate of the Ross
Correctional Institution ("RCI") requests a writ of prohibition and/or mandamus ordering
respondent, the Honorable Robert G. Montgomery, the Judge of the Franklin County
Probate Court ("respondent" or "Judge Montgomery") to dismiss an adoption proceeding
in which the adoption petitioner claims that relator's consent to the adoption is not
required under R.C. 3107.07(A).
Findings of Fact:
      {¶10} 1. On November 13, 2017, relator, an RCI inmate, filed this original action
requesting this court issue writs of prohibition and/or mandamus ordering Judge
No. 17AP-791                                                                                6


Montgomery to dismiss an adoption proceeding pending in his court in which relator is
allegedly the "biological father" of a child who is the subject of the adoption petition.
       {¶11} 2. In his complaint, at paragraph ten, relator alleges:
               THE ONLY ARGUMENT BY THE PARTY SEEKING TO
               ADOPT THE CHILD OF RELATOR IS: They allege that
               Relator Roush's failure to maintain contact was of his own
               making, and that the fact that his ex (the other natural
               parent) placed a Cease and Decease Contact Order (CDO)
               with the Corrections Officials was not an acceptable reason
               for the no contact. But there is no available evidence that
               could substantiate that allegation, because we cannot
               demand that Relator do what the Government Authorities
               will not allow him to do. Roush [has] sent repeated letters to
               his child, but to no avail due to the CDO. Moreover, there is
               the issue that Relator is incarcerated, and therefore, to be
               held as his own fault that the incarceration prevents the
               contact.

       {¶12} 3. On November 28, 2017, Judge Montgomery filed a motion to dismiss
this original action.
       {¶13} 4. On December 7, 2017, relator filed a memorandum in opposition to
respondent's motion to dismiss. In his memorandum in opposition, relator asserts:
               Respondent alleges, incorrectly, that Roush has an adequate
               remedy if he were to "seek to intervene" in the pending
               adoption action below. Presumably under Civ.R. 24.
               However, Roush is the biological father of the child who is
               the subject to that action, and secondly, Roush has [already]
               been a direct participant in that adoption case since it was
               commenced. Thus Roush is [already] a party. Roush has
               participated in that Court's He[a]rings, via teleconference,
               and another such Hearing is currently set for Dec. 05, 2017,
               (with Roush to be present via telephone).

       {¶14} 5. Respondent has not filed a reply pursuant to Loc.R. 13(E).

Conclusions of Law:
       {¶15} It is the magistrate's decision that this court grant respondent's motion to
dismiss.
No. 17AP-791                                                                               7


                                   The Probate Court
       {¶16} Original and exclusive jurisdiction over adoption proceedings is vested
specifically in the probate court pursuant to R.C. Chapter 3107. State ex rel. Portage Cty.
Welfare Dept. v. Summers, 38 Ohio St.2d 144 (1974), paragraph two of the syllabus.
       {¶17} R.C. 3107.06 provides that the probate court may grant a petition to adopt a
minor "only if written consent to the adoption has been executed by all" of the persons
identified in the statute. The father of the minor is among those listed in the statute that
must give written consent. Also listed is the mother of the minor, the putative father, and
the minor, if more than 12 years of age.
       {¶18} R.C. 3107.07 provides when a consent to adoption is not required.
R.C. 3107.07(A) provides:
               A parent of a minor, when it is alleged in the adoption
               petition and the court, after proper service of notice and
               hearing, finds by clear and convincing evidence that 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 immediately
               preceding either the filing of the adoption petition or the
               placement of the minor in the home of the petitioner.

                                   Motion to Dismiss
       {¶19} A Civ.R. 12(B)(6) motion to dismiss tests the sufficiency of the complaint.
State ex rel. Boggs v. Springfield Local School Dist. Bd. of Edn., 72 Ohio St.3d 94 (1995)
citing State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545 (1992).
       {¶20} In reviewing the complaint, this court must take all the material allegations
as admitted and construe all reasonable inferences in favor of relator. Id.
       {¶21} In order for a court to dismiss a complaint for failure to state a claim on
which relief can be granted, it must appear beyond doubt from the complaint that the
plaintiff/relator can prove no set of facts entitling him or her to recover. O'Brien v. Univ.
Community Tenants Union, 42 Ohio St.2d 242 (1975).
                                       Prohibition
       {¶22} A writ of prohibition is an extraordinary judicial writ issuing out of a court
of superior jurisdiction and directed to an inferior tribunal commanding it to cease
No. 17AP-791                                                                               8


abusing or usurping judicial functions. State ex rel. Jones v. Suster, 84 Ohio St.3d 70, 73
(1998). In other words, the purpose of a writ of prohibition is to restrain inferior courts
and tribunals from exceeding their jurisdiction. Id.
       {¶23} A writ of prohibition "tests and determines 'solely and only' the subject
matter jurisdiction" of the lower court. State ex rel. Eaton Corp. v. Lancaster, 40 Ohio
St.3d 404, 409 (1988); Suster at 73.
       {¶24} As a general rule, in order for a writ of prohibition to issue, the relator must
prove that: (1) the lower court is about to exercise judicial authority; (2) the exercise of
authority is not authorized by law; and (3) the relator has no other adequate remedy in
the ordinary course of law if a writ of prohibition is denied. State ex rel. Keenan v.
Calabrese, 69 Ohio St.3d 176, 178 (1994).
       {¶25} If an inferior court is without jurisdiction whatsoever to act, the availability
or adequacy of a remedy of appeal to prevent the resulting injustice is immaterial to the
exercise of supervisory jurisdiction by a superior court to prevent usurpation of
jurisdiction by the inferior court. State ex rel. Adams v. Gusweiler, 30 Ohio St.2d 326,
329 (1972).
       {¶26} It is clear from the complaint that relator seeks to prevent or prohibit the
probate court from entering a determination under R.C. 3107.07(A) that 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 either the filing of the adoption
petition or the placement of the minor in the home of the petitioner."
       {¶27} There can be no doubt that the probate court has subject matter jurisdiction
to render an R.C. 3107.07(A) determination. Therefore, prohibition cannot lie. Eaton
Corp. at 409.
       {¶28} Moreover, it is also clear that, should the probate court render an
R.C. 3107.07(A) determination that is unfavorable to relator, he has an adequate remedy
at law by way of an appeal of that determination.
       {¶29} Accordingly, relator has failed to state a claim on which relief can be granted
in prohibition.
No. 17AP-791                                                                                9


                                        Mandamus
       {¶30} It is well-settled that in order for a writ of mandamus to issue the relator
must demonstrate (1) that he has a clear legal right to the relief prayed for; (2) that the
respondent is under a clear legal duty to perform the acts; and (3) that relator has no plain
and adequate remedy in the ordinary course of law. State ex rel. Berger v. McMonagle, 6
Ohio St.3d 28, 29 (1983).
       {¶31} Neither mandamus nor procedendo can be used to control judicial
discretion, even if that discretion is abused. State ex rel. Culgan v. Collier, 132 Ohio St.3d
394, 2012-Ohio-2916, citing State ex rel. Fontanella v. Kontos, 117 Ohio St.3d 514, 2008-
Ohio-1431.
       {¶32} Here, as clearly indicated by his complaint, relator seeks to prevent
respondent from entering an R.C. 3107.07(A) determination that is unfavorable to him.
That is, by this original action, relator endeavors to prohibit respondent from entering a
finding that relator's consent to the adoption is not required under R.C. 3107.07(A).
Thus, it is clear beyond doubt that, through this original action, relator seeks to control
respondent's judicial discretion. It follows that the complaint fails to state a claim on
which relief in mandamus may be granted.
       {¶33} Accordingly, for all the above reasons, it is the magistrate's decision that this
court grant respondent's motion to dismiss.


                                               /S/ MAGISTRATE
                                               KENNETH W. MACKE




                               NOTICE TO THE PARTIES

               Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign as
               error on appeal the court's adoption of any factual finding or
               legal conclusion, whether or not specifically designated as a
               finding of fact or conclusion of law under Civ.R.
               53(D)(3)(a)(ii), unless the party timely and specifically objects
               to that factual finding or legal conclusion as required by Civ.R.
               53(D)(3)(b).
