Rothaker v. McCafferty

Annotate this Case

Download PDF

[Cite as Rothaker v. McCafferty, 2002-Ohio-4927.] COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 81427 IN RE: CYNTHIA ROTHACKER, ET AL. Petitioners vs. JAMES McCAFFERTY, DIRECTOR, C.C.D.C.F.S. Respondent : : : : : : : : : : : JOURNAL ENTRY and OPINION CHARACTER OF PROCEEDING: WRIT OF HABEAS CORPUS JUDGMENT: WRIT DENIED. DATE OF JOURNALIZATION: September 19, 2002 APPEARANCES: For Petitioners: MARK D. McGRAW 1370 Ontario Street Cleveland, Ohio 44113 For Respondent: (James McCafferty, Director) REGINA HARDEN Assistant County Prosecutor 3955 Euclid Avenue Cleveland, Ohio 44115 For Respondent: (Cuyahoga County Department of Children and Family Services) JOSEPH C. YOUNG Assistant County Prosecutor 3343 Community College Avenue Corridor F Cleveland, Ohio 44115 COLLEEN CONWAY COONEY, J.: {¶1} On June 17, 2002, the petitioners, David Rothacker and his daughters, Cynthia Rothacker and Mindy Rothacker,1 commenced this habeas corpus action against the respondent, James McCafferty, the Director of the Cuyahoga County Department of Children s and Family Services ( the County ). In April 2002, the Cuyahoga County Common Pleas Court, Juvenile Division, awarded temporary custody of Cynthia and Mindy Rothacker to the County, which had alleged that Cynthia was neglected in the underlying case, In the Matter of Cynthia Rothacker, Cuyahoga County Common Pleas Court, Juvenile Division, Case No. 02901551.2 for summary judgment. On July 29, 2002, the petitioners belatedly filed a brief in opposition.3 court grants the On June 27, 2002, the County moved motion for For the following reasons, this summary judgment and denies the application for a writ of habeas corpus. {¶2} The gravamen of the habeas corpus complaint is that the Juvenile Court unlawfully deprived Mr. Rothacker of the legal custody of his daughters because it made the following errors: (1) 1 Mr. Rothacker, in approximately 1989, had been awarded legal custody of his daughters. 2 In In the Matter of Mindy Rothacker, Cuyahoga County Common Pleas Court, Juvenile Division, Case No. 02901528, the court had awarded the County temporary custody of Mindy. Although Mr. Rothacker seeks the return of both of his daughters, he provides documents and records relating only to Cynthia. 3 Loc.App.R. 45(B)(3) allows twenty days for a response to a dispositive motion in original actions before this court. it did not consider the paternal grandmother as a custodian; (2) the court erroneously found that the County made reasonable efforts to prevent the removals; (3) it erroneously found that Mr. Rothacker failed or refused to comply with Agency Services. {¶3} The Supreme Court of Ohio in Howard v. Catholic Social Services of Cuyahoga County, Inc., 70 Ohio St.3d 141, 1994-Ohio219, 637 N.E.2d 890, reviewed the principles of habeas corpus in child custody cases. The court first noted that R.C. 2725.05 provides: If it appears that a person alleged to be restrained of his liberty is in the custody of an officer under process issued by a court or magistrate, or by virtue of the judgment or order of a court of record, and that the court or magistrate had jurisdiction to issue the process, render the judgment, or make the order, the writ of habeas corpus shall not be allowed. Thus, generally nonjurisdictional challenges preclude the issuance of a writ of habeas corpus. Moreover, habeas corpus is an extraordinary remedy and is not available when there is an adequate remedy in the ordinary course of the law. substitute for appeal. Habeas corpus may not be used as a Luchene v. Wagner (1984), 12 Ohio St.3d 37, 39, 465 N.E.2d 395, and In re Piazza (1966), 7 Ohio St.2d 102, 218 N.E.2d 459. Nevertheless, there may be extreme circumstances in child custody cases which would warrant intervention through habeas corpus. For example, in Marich v. Knox County Department of Human Services/Children Services Unit (1989), 45 Ohio St.2d 163, 543 N.E.2d 776, the court upheld habeas relief when the state had used undue influence to secure a newborn infant for adoption from a fifteen-year-old mother. The Howard court also cited In re Fisher (1974), 39 Ohio St.2d 71, 313 N.E.2d 851 and In re Brown (1973), 35 Ohio St.2d 9, 298 N.E.2d 579, cases involving deprivation of counsel, as examples in which egregious circumstances permitted habeas relief. {¶4} In the instant case the juvenile court, pursuant to R.C. 2151.03(A), 2151.23 and 2151.28, had jurisdiction to determine whether the daughters were neglected and to make an award of temporary custody to the County. Thus, because the trial court possessed the basic statutory jurisdiction over the matter, habeas corpus should not lie. State ex rel. Milgrim v. Leonard Munks (Nov. 24, 1999), Cuyahoga App. No. 77226, and Wade v. Director, Cuyahoga County Department of Children and Family Services (Oct. 15, 1999), Cuyahoga App. No. 76752. {¶5} In response Mr. Rothacker argues that because the juvenile court is a creature of statute, the statutory guidelines, procedures and requirements, e.g., the duty to consider relative placement, are jurisdictional in nature. Thus, the juvenile court s failure to follow the provisions in R.C. Chapter 2151 deprive it of jurisdiction, and habeas corpus should lie. this is not persuasive. for the proposition. However, First, Mr. Rothacker cites no authority The proposition is also absurd, because it would mean that even a minor deviation from the statutory scheme would deprive the juvenile court of jurisdiction over the important cases entrusted to it. that errors, Finally, the courts have repeatedly ruled including multiple dismissals, alleged perjury, alleged due process violations, and the failure to follow the statutes precisely, are not jurisdictional defects. Howard, Wade, and State ex rel. Driscoll v. Hunter (Mar. 5, 1998), Cuyahoga App. No. 72905. {¶6} Moreover, habeas corpus will not lie because there are adequate remedies at law. In Howard, the petitioner also sought immediate court custody. relief from a order which granted temporary In denying habeas relief, the supreme court stated that although the petitioner possessed no immediate appeal from a preadjudicatory emergency temporary custody order, appeal following a determination of the entire case could be an adequate remedy and precluded the issuance of a writ of habeas corpus. Furthermore, in Pettry v. McGinty (1979), 60 Ohio St.2d 92, 397 N.E.2d 1190, the supreme court held that Juv.R. 7(G) provides an adequate remedy at law precluding habeas relief for an order of temporary custody.4 The County also notes that Juv.R. 40(C) provides for an appeal from the decision of the magistrate to the court. 4 Juv.R. 7(G) provides in pertinent part as follows: After a child is placed in shelter care or detention care, any party and the guardian ad litem of the child may file a motion with the court requesting that the child be released from detention or shelter care. Upon the filing of the motion, the court shall hold a hearing within seventy-two hours. {¶7} In response, Mr. Rothacker argues that the adequate remedy principle should not apply because appeal after the final decision would not be a complete, speedy, or beneficial remedy and because a motion under Juv.R. 7(G) would be a vain act. does not require the doing of a vain act. The law He also pleads that the errors committed by the juvenile court are so egregious that habeas relief should lie to correct them immediately. {¶8} These arguments are not persuasive. His reliance on Marich for the proposition that an appeal would not be a complete, beneficial, and speedy remedy is misplaced. Marich is distinguishable and inapplicable because it concerned the adoption of an infant and a finding of undue influence. Additionally, the Supreme Court of Ohio has also held that the sole fact that pursuing an appeal would encompass more delay and inconvenience than seeking a writ is insufficient to prevent the appeal from constituting a plain and adequate preclude the extraordinary remedy. remedy at law which would Cf. State ex rel. Keenan v. Calabrese (1994), 69 Ohio St.3d 176, 631 N.E.2d 119. {¶9} Moreover, this court has carefully reviewed the materials submitted and considered the errors alleged. These alleged errors, although framed as constitutional violations, actually attack the findings of the court. appropriate guardian? the children? Would the paternal grandmother make an Did the County try to prevent the removal of Were there other circumstances which demanded the removal of the children? the father? Did the County try to provide services to Did the father refuse such services? are properly addressed on appeal. Such matters Thus, Mr. Rothacker is really seeking to use habeas corpus as a substitute for appeal. Finally, these alleged errors, if any, are not so egregious that habeas relief is warranted. {¶10} Accordingly, this court grants the respondent s motion for summary judgment and denies the application for a writ of habeas corpus. Petitioners to pay costs. The clerk is directed to serve upon the parties notice of this judgment and its date of entry upon the journal. Civ.R. 58(B). ________________________ JUDGE COLLEEN CONWAY COONEY MICHAEL J. CORRIGAN, P.J. and DIANE KARPINSKI, J. CONCUR

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.