IN THE SUPREME COURT OF OHIO

ORIGINAL STATE OF OHIO, ex rel CHANTIL CASKEY, IN THE SUPREME COURT OF OHIO Relator, CASE NO. 2012-1253 vs. On Appeal from the Greene County Court of Appeals, Second Appellate THE HONORABLE G. ALLEN GANO,. District JUDGE OF THE COURT OF COMMON PLEAS OF GREENE COUNTY, OHIO. Court of Appeals Case No. 2012 CA 36 Sitting by Assignment, Respondent. MERIT BRIEF OF APPELLEE-RESPONDENT ELIZABETH A. ELLIS (0074332) Civil Division Chief Office of the Greene County Prosecuting Attorney 55 Greene Street, First Floor Xenia, OH 45385 TX: (937) 562-5669 FX: (937) 562-5258 Attorney for Respondent, Judge G. Allen Gano ROBERT K. HENDRIX (0037351) Peterson & Peterson, LLC 87 S. Progress Drive Xenia, OH 45385 TX: (937) 372-3584 FX: (937) 372-7218 hantil Caskey SEP 19 ;'012 cd CLERK OF COURT SUPREME COUR'a OF OHIO ^UD SEP 1 U 2012 CLERK OF COURT SUPREME COURT OF OHIO

TABLE OF CONTENTS TABLE OF AUTHORITIES... 3 STATEMENT OF THE CASE AND FACTS... 4 ARGUMENT... 8 PROPOSITION OF LAW NO. i: RESPONDENT IS NOT REQUIRED TO ALLOW RELATOR TO INTERVENE ABSENT A STATUTORY RIGHT TO INTERVENE... io PROPOSITION OF LAW NO. 2: COLLATERAL ESTOPPEL CANNOT BE APPLIED TO BAR AN ACTION IN A COURT WITH EXCLUSIVE ORIGINAL JURISDICTION OVER THE SUBJECT MATTER... 14 PROPOSITION OF LAW NO. 3: THE REMEDY FOR A VIOLATION OF R.C. 3107.011 IS THE APPOINTMENT OF NEW COUNSEL. AN INITIAL VIOLATION OF THE STATUTE DOES NOT DIVEST THE PROBATE COURT OF ITS JURISDICTION OVER THE APPLICATION... 17 CONCLUSION... i8 2

TABLE OF AUTHORITIES PAGE CASES InReAdoption ofridenour(i99i), 6i Ohio St. 3d 319...6,8,i5 State ex rel. Caskey v. Gano, Greene App. No. 1t-CA-5i, 2oii-Ohio-6i44...6 In Re: J.T.F., Greene App. No. 12-CA-o3, 2012-Ohio-2105...6 State ex rel. Caskey v. Gano, Greene App. No. 12-CA-36 (June 14, 2012)...7 State ex rel. Carroll v. Corrigan, 91 Ohio St. 3d 331, 2001-Ohio-54 7 State ex rel. Cleveland v. Sutula, 127 Ohio St.3d 131, 20io-Ohio-5039 8 State ex rel. Portage Cty.Welfare Dept. v. Summers (1974), 38 Ohio St.2d 144 8>9,14 State ex rel. Mayer v. Henson, 97 Ohio St.3d 276, 2002-Ohio-6323 8 Rosen v. Celebrezze, 117 Ohio St.3d 241, 2oo8-Ohio-853... 8 State ex rel. Sapp v. Franklin Cty.Crt of App, 118 Ohio St.3d 368, 20o8-Ohio- 2637...8 State ex rel. Furnas v. Monnin, 12o Ohio St.3d 279, 2oo8-Ohio-5569 8 Peebles v. Clement (198o), 63 Ohio St.2d 314...u State, ex rel. Heller, v. Miller (198o), 61 Ohio St.2d 6...ii Board of Regents v. Roth (1972), 408 U.S. 564, 92 S.Ct. 2701...li-i2 Morrissey v. Brewer (1972), 4o8 U.S. 471, 92 S.Ct. 2593...11 Montez v. San Antonio Indep. School Dist: (C.A.5, i987), 817 F.2d 1124...i2 Dorian v. Bd. of Edn. (i98o), 62 Ohio St.2d 182...i2 Perry v. Sindermann (1972), 408 U.S. 593,92 S.Ct. 2694...12 Meyer v. Nebraska (1923), 262 U.S. 390, 399, 43 S.Ct. 625...12,i3 Santosky v. Kramer (1982), 455 U.S. 745,102 S.Ct. 1388...i2,i3 Troxel v. Granville (2000), 530 U.S. 57, 66,120 S.Ct. 2054...i2 In re Perales (1977), 52 Ohio St.2d 89...i3 In re Hockstok, 98 Ohio St.3d 238, 2002-Ohio-72o8...i3 In re Stevens (July 16, i993), Montgomery App. No. 13523 13 Grava v. Parkman Twp., 73 Ohio St.3d 379, 381, 1995-Ohio-331...i4 Krahn v. Kinney (1989),43 Ohio St.3d 103...i4 In Re Young /Noble v. Noble (1979), 58 Ohio St. 2d 90...i5 Volk v. Volk, Crawford App. No. 3-82-28 (May 27, 1983) i6 In re Griffiths (1975), 47 Ohio App. 2d 238...i6 In readoption of G.V., 126 Ohio St.3d 249, 2o1o-Ohio-3349 16 In Re Adoption of Baby Doe, 9th Dist. No. 19279 (April 14, 1999) 17 State ex rel. Powell v. Markus, 115 Ohio St.3d 219, 2007-Ohio-4793 17 State ex rel. Shimko v. McMonagle (2001), 92 Ohio St.3d 426, 428-429 17 STATUTES Ohio Revised Code Section 2151.011...5 Ohio Revised Code Section 3107.o6... 5,10,13 Ohio Revised Code Section 3107.07... 9,10,13 Ohio Revised Code Section 3107.11...5,i,a3 Ohio Revised Code Section 3107.011...i7 RULES OF PROCEDURE Ohio Civ. R. 24...9, 10, 13 3

STATEMENT OF THE CASE AND FACTS The child at issue in this case was born to Courtney Litteral while she was incarcerated at the Ohio Reformatory for Women. The child was initially placed with her mother in the institution's ABC program; however, Courtney lost her eligibility for that program. Because she last resided in Greene County, Ohio, the Greene County Children Services Board (GCCSB) took action in the Greene County Court of Common Pleas, Juvenile Division, to have the child adjudicated dependent and placed in a foster home. The child was initially placed in Union County, but was later transferred to the Relator/Appellant's home, upon Courtney's release from prison back to Greene County. Relator is a certified foster parent for the Greene County Children Services Board. As a result of the litigation in Juvenile Court, the child was adjudicated dependent, temporary custody was granted to GCCSB. While the dependency case was still pending in Juvenile Court, Courtney Litteral, through Attorney Jim Swaim, filed an Application for Placement of the child with Robert and Amy Foster in the Greene County Probate Court. Robert and Amy Foster have adopted an older sibling of the child. Shortly thereafter, Courtney Litteral filed a motion in Juvenile Court seeking to terminate GCCSB's temporary custody or to grant legai custody to Robert and Amy Foster. Reiator also filed a motion for legal custody of the child. The Greene County Juvenile Court held a hearing and made a determination that it was in the best interest of the child to be placed with Relator, and granted legal custody of the child to Relator. Courtney Litteral, 4

however, retained her residual parental rights, privileges, and responsibilities, which has been defined as, "including, but not necessarily limited to, the privilege of reasonable visitation, consent to adoption, the privilege to determine the child's religious affiliation, and the responsibility for support." R.C. 2151.oii(A) (46). Accordingly, Courtney Litteral proceeded with the application for placement in the Probate Court. The Probate Court scheduled the matter for a hearing on May 24th, 2011, and notice was provided to Relator. Relator filed a Motion to Dismiss the Application for Placement, asserting collateral estoppels barred a subsequent adjudication of the best interest of the child; the petitioner failed to set forth the name and address of the putative father; and that two members of the same law firm could not represent the petitioner and the prospective adoptive parents. Greene County Probate Court Judge Hagler denied the motion and then recused himself and Respondent was appointed by the Ohio Supreme Court to preside over the case. Robert and Amy Foster then filed a Petition for Adoption, with Attorney Jim Swaim signing off as counsel for Robert and Amy Foster. Subsequently, Attorney Adrienne Brooks filed a notice of substitution of counsel on behalf of Robert and Amy Foster. Relator then sought to be added as a necessary party to the adoption proceeding as a legal guardian. Courtney Litteral, through counsel, objected. Relator filed a previous Mandamus action to require Respondent to add Relator as a necessary party, and a previous Prohibition action to prohibit Respondent from taking action on the Application for Placement and Petition to Adopt. 5

Respondent issued a decision on the Motion to Be Added as a Party filed by Relator. Respondent held that pursuant to In Re Ridenour et. al. (1991), 61 Ohio St. 3d 319, Relator does not have the right to intervene in an adoption proceeding as a legal custodian's consent is not required for adoption under R.C. 3107.o6 and R.C. 3107.ii(A)(2). Respondent further held that a best interest of the child determination in Juvenile Court in a dependency case does not bar a Probate Court from making a similar determination in an adoption proceeding, as the Probate Court holds exclusive, original jurisdiction over Adoptions. In State ex rel. Caskey v. Gano (Caskey I), Greene App. No. il-ca-51, 2011-Ohio-6144, the Second District Court of Appeals denied the writ of prohibition on the basis that respondent did not act outside the probate court's jurisdiction and that Caskey had an adequate remedy at law via appeal. Id. at ii. The Appellate Court denied the writ of mandamus on the basis Caskey had an adequate remedy at law by way of appeal. Id. at i3. Relator then appealed Respondent's decisions to the Second District Court of Appeals, which held that Respondent did not abuse his discretion in denying the Relator's Civ. R. 24 motion to intervene, and dismissed all other assignments of error as moot. In Re: J.T.F., Greene App. No. 12-CA-o3, 2012-Ohio-2105, 37,43 The same day the Appellate Court decided In Re: J.T.F., supra, the Relator filed the instant petition for a writ of prohibition and/or mandamus. Respondent filed a timely answer. The Second District Court of Appeals held that Caskey was not entitled to a writ of prohibition because she could not demonstrate that she had a clear legal right to the relief sought, because she was not a party to the 6

adoption proceeding and continuing jurisdiction of the juvenile court over a child does not present a jurisdictional bar to adoption proceedings in probate court. State ex rel. Caskey v. Gano (Caskey II), Greene App. No. 12-CA-36 (June 14, 2012), 8. The Court also held that Caskey was not entitled to a writ of mandamus, as mandamus will not issue to control judicial discretion, even if that discretion is abused. Id. at 9, qtg. State ex rel. Carroll u. Corrigan, 91 Ohio St. 3d 331, 20oi-Ohio-54 7

ARGUMENT PROHIBITION V.IVIANDAMUS To be entitled to the requested writ of prohibition, Relator must establish that (i) Respondent is about to exercise judicial power, (2) the exercise of that power was 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, 20io-Ohio-5039, 13. Respondent has 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), 6i Ohio St.3d 319, 324; State ex rel. Portage Cty. Welfare Dept. v. Summers (1974), 38 Ohio St.2d 144, 151 ("original and exclusive jurisdiction over adoption proceedings is vested specifically in the Probate Court pursuant to R.C. Chapter 3107"). 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, 12; Rosen v. Celebrezze, 117 Ohio St.3d 241, 2oo8-Ohio-853, 883 N.E.2d 420, i8. "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, 1i8 Ohio St.3d 368, 20o8-Ohio-2637, 889 N.E.2d 500, 15; State ex rel. Furnas v. Monnin, 120 Ohio St.3d 279, 2oo8-Ohio-5569, ii. 8

Therefore, the dispositive issue in the Prohibition action is whether the Respondent patently and unambiguously lacks jurisdiction over the Application for Placement and Robert and Amy Foster's petition to adopt the child when the same attorney represented both parties at the time the applications were filed, although the parties now have separate counsel. Respondent submits that any statutory violation has been remedied and Respondent has the exclusive, original jurisdiction of the subject matter. Accordingly, Relator has failed to establish that she is entitled to a writ of prohibition. To be entitled to a writ of mandamus, Relator must establish a clear legal right to intervene in the proceedings, a corresponding clear legal duty on the part of Respondent to allow the intervention, and the lack of an adequate remedy in the ordinary course of law. State ex rel. Duncan v. Portage County Board of Elections, 117 Ohio St. 3d 116, 2007-Ohio-5346, 8. Respondent submits that for the reasons set forth in the argument section below, the Relator's right to be an intervening party is not required under R.C. 3107.07(H) when Respondent has held that Relator has unreasonably withheld consent. Further, pursuant to Civ. R. 24, Respondent does not have a clear legal duty to permit Relator to intervene absent a statutory right. Finally, Relator has appealed the decision of Respondent, so Relator has an adequate remedy at law. Thus, the Relator has failed to establish that she is entitled to a writ of mandamus. 9

PROPOSTION OF LAW NO. 1: RESPONDENT IS NOT REQUIRED TO ALLOW RELATOR TO INTERVENE ABSENT A STATUTORY RIGHT TO INTERVENE Civ. R. 24(A) governs intervention of right and requires a statute to confer either an unconditional or conditional right to intervene. Civ. R. 24(B) governs permissive intervention and provides that a party may intervene upon a showing that (i) a statute of this state confers a conditional right to intervene; or (2) when an applicant's claim or defense and the main action have a question of law or fact in common. R.C. 3107.o6, 3107.07, & 3107.11 govern which parties are required/permitted to consent to an adoption. R.C. 3107.o6 requires the written consent of the mother of the child and the father of the child when certain conditions are present. Consent of a legal custodian is not required under R. C. 3107.o6. R.C. 3107.07(H) provides that the consent of the legal custodian, who is not a parent, is not required if that custodian has failed to respond to a request for consent for a period of thirty days or if the court finds that the legal custodian is withholding consent unreasonably.l The Respondent has found that Relator is not a required party and as such, she lacks standing to intervene. If Respondent has made this determination in error, Relator has exercised her remedy at law through the appellate process. Further, Relator argues that by not finding that she was entitled to intervene, the Respondent deprived Relator of her statutory rights as legal custodian without affording her process of law to protect those rights in contravention to ` Counsel for the Respondent could not fmd any request for consent from Courtney Litteral or Robert or Amy Foster in the record. The statute is not clear on the mechanism through which the consent must be obtained. However, Respondent properly found that Relator has witbheld consent on the basis of collateral estoppels, and this is not reasonable. 10

her constitutional right to due process. The issue of whether a person can be deprived of their legal status as legal custodian of a child without hearing through adoption proceedings is one of first impression. "In providing that no state shall 'deprive any person of life, liberty, or property, without due process of law,' the Fourteenth Amendment to the United States Constitution requires that substantial procedural safeguards be provided in our legal system before one may be deprived of a property right." Peebles u. Clement (198o), 63 Ohio St.2d 314, 317. Similarly, Section i6, Article I of the Ohio Constitution provides substantially the same safeguards as does the Fourteenth Amendment by specifying that injured persons shall have "remedy by due course of law." Peebles, op. cit.; State, ex rel. Heller, v. Miller (198o), 61 Ohio St.2d 6. The requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment's protection of liberty and property. Board of Regents v. Roth (1972), 4o8 U.S. 564, 569, 92 S.Ct. 2701, 2705. Therefore, the applicability of the constitutional guarantee of procedural due process depends in the first instance on the presence of a legitimate "property" or "liberty" interest within the meaning of the Fourteenth Amendment. Roth, supra, at 571, 92 S.Ct. at 27o6; Morrissey v. Brewer (1972), 4o8 U.S. 471,481,92 S.Ct. 2593, 2600, 33 L.Ed.2d 484. The Supreme Court of the United States in Roth, supra, 408 U.S. at 577, 92 S.Ct. at 2709, held that the following is required to have the requisite property interest in a specific benefit: To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement 11

to it. It is a purpose of the ancient institution of property to protect those claims upon which people rely in their daily lives, reliance that must not be arbitrarily undermined. It is a purpose of the constitutional right to a hearing to provide an opportunity for a person to vindicate those claims. Therefore, in order to allege a due process deprivation of a property interest under the Fourteenth Amendment, the claimant must demonstrate that he had a "legitimate claim of entitlement" to that interest. Roth, supra; Montez v. San Antonio Indep. School Dist. (C.A.5, 1987), 817 F.2d 1124, 1125. Such "legitimate claim of entitlement" may be shown by existing rules or understandings that stem from an independent source such as state law. Roth, supra, 4o8 U.S. at 577, 92 S.Ct. at 2709; Dorian v. Bd. of Edn. (198o), 62 Ohio St.2d 182, 185. Furthermore, such protected property interest may be created by implied contract. Perry v. Sindermann (1972), 4o8 U.S. 593, 92 S.Ct. 2694; Dorian, supra; Montez, supra. The United States Supreme Court has defined "liberty" in the due process clause to protect basic aspects of family autonomy. See Meyer v. Nebraska (1923), 262 U.S. 390, 399, 43 S.Ct. 625. The Court has subsequently recognized that parents have a fundamental right to custody of their children. See Santosky v. Kramer (1982), 455 U.S. 745, 758-759, 102 S.Ct. 1388. And the Court has expressly held that "the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children." Troxel v. Granville (2000), 530 U.S. 57, 66,120 S.Ct. 2054,147 L.Ed.2d 49. This Court, too, has noted that "[t]he right of a parent to raise his or her child has been defined as a 'natural' right subject to the protections of due process." In re Perales (1977), 52 Ohio St.2d 89, 97 n. 9, 12

citing Meyer v. Nebraska (1923), 262 U.S. 390> 43 S.Ct. 625. "Since parents have constitutional custodial rights," the Ohio Supreme Court has said, "any action by the state that affects this parental rights, such as granting custody of a child to a nonparent, must be conducted pursuant to procedures that are fundamentally fair." In re Hockstok, 98 Ohio St.3d 238, 2002-Ohio-72o8, at 16, citing Santosky v. Kramer (1986), 455 U.S. 745, 754, 102 S.Ct. 1388. Further, the Second District has held that "[t]he procedures for determining parental unfitness, unsuitability, the best interests of the child, or matters of public safety, through R.C. 2151, must assure the parties of a fair hearing, and protect their constitutional and other legal rights." In re Stevens (July 16, 1993), Montgomery App. No. 13523 However, the aforementioned cases and cases relied upon by Relator have only found a right to due process where parental rights of natural or biological parents are at issue. Moreover, Respondent could find no cases that have held that a person that has been designated a legal custodian through an abuse, neglect, or dependency proceedings has a liberty or property interest in status as a legal custodian. In absence of any case law on the issue to the contrary, Respondent reasonably relied upon the requirements and procedures set forth by the General Assembly in determining whether Relator has standing to interevene in an adoption proceeding under Civ. R. 24, R.C. 3107.o6, R.C. 3107.07, and R.C. 3107.11. In so doing, Respondent exercised his discretion in a matter over which he had exclusive, original jurisdiction. 13

PROPOSITION OF LAW NO. 2: COLLATERAL ESTOPPEL CANNOT BE APPLIED TO BAR AN ACTION IN A COURT WITH EXCLUSIVE ORIGINAL JURISDICTION OVER THE SUBJECT MATTER. Res judicata involves both claim preclusion, which historically has been called estoppel by judgment, and issue preclusion, which traditionally has been referred to as collateral estoppel. Grava v. Parkman Twp., 73 Ohio St.3d 379, 381, 1995-Ohio-33i, 653 N.E.2d 226. Under the claim preclusion branch of res judicata, "[a] valid, final judgment rendered upon the merits bars all subsequent actions based upon any claim arising out of the transaction or occurrence that was the subject matter of the previous action." Id. at the syllabus. Issue preclusion, or collateral estoppel, precludes relitigation of an issue that has been "actually and necessarily litigated and determined in a prior action." Krahn v. Kinney (1989), 43 Ohio St.3d 103,107,538 N.E.2d 1058. In the case at bar, Relator is alleging that because the issue of the best interest of the child has been previously litigated in the dependency proceedings in Juvenile Court, the Probate Court should be estopped from making the best interest determination in the adoption proceeding. This issue appears to be one of first impression as well in the State of Ohio, as the undersigned could not find any cases on point. It is well-settled that original and exclusive jurisdiction over adoption proceedings is vested specifically in the probate court pursuant to RC Ch 3107. State ex rel. Portage County Welfare Dept. v. Summers (Ohio 1974) 38 Ohio St.2d 144. To hold that a probate court would be estopped from making a best 14

interest determination in an adoption case because the child had likewise been adjudicated dependent in the juvenile court would be a usurpation of the exclusive jurisdiction granted to the probate court. Moreover, the Ohio Supreme Court has held that, 'Athe probate court is empowered by the legislature to reach adoption decisions on the basis of the best interests of the child at the time the petition is filed. If the probate court is bound by a prior order from another court, then the probate court may be forced to sacrifice the best interests of the child in order to protect the rights accorded to third parties. Such a result would be inconsistent with the adoption statute and the policies underlying it." In Re Adoption of Ridenour(199i), 6i Ohio St. 3d 319, 324. This Court has also held that even when a juvenile court has made a neglect determination, a different court may still make a best interest of the child determination in a habeas corpus action which sought the return of custody of the child. In Re Young /Noble v. Noble (1979), 58 Ohio St. 2d 9o. In Young, the Clark County Juvenile Court found in the neglect case that the child had not been willfully abandoned by his mother. Subsequently, the mother filed a petition for a writ of habeas corpus in the Second District Court of Appeals seeking that custody of her child be returned to her. The mother argued that the appellate could not deny the habeas writ since the Juvenile Court found that she did not willfally abandon her child in the neglect action on the basis of res judicata. This Court found that res judicata did not apply since the standard of proof in the neglect case (clear and convincing evidence) and the habeas petition (preponderance) are different. Thus, there is precedent for two separate courts making best interest determinations for the same child. 15

Likewise, the Third District Court of Appeals has held that res judicata does not apply as a bar to custody and visitation determinations where there is a showing of changed conditions. Volk v. Volk, Crawford App. No. 3-82-28 (May 27, 1983), 1983 WL 7274, qtg. In re Griffiths (1975), 47 Ohio App. 2d 238. Respondent submits that even if this Court were to find a res judicata bar, due to the obvious differences between legal custody and adoption, conditions have sufficiently changed to warrant a subsequent determination. There was no permanent placement option before the juvenile court when it made its determination. Accordingly, that decision should not be binding on a probate court which has a permanent placement option of adoption before it. Lastly, this Court has recently held that, `[w]hen 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, 2oio-Ohio-3349>1f 8. In the instant case, once the legal custody determination was granted by the juvenile court, the probate court was free to proceed with the adoption proceedings. As such, Respondent may properly make its own determination as to whether adoption is in the best interest of the child. 16

PROPOSITION OF LAW NO. 3: THE REMEDY FOR A VIOLATION OF R.C. 3107.011 IS THE APPOINTMENT OF NEW COUNSEL. AN INITIAL VIOLATION OF THE STATUTE DOES NOT DIVEST THE PROBATE COURT OF ITS JURISDICTION OVER THE APPLICATION. While Respondent admits that the same attorney initially represented both the natural parent and the potential adoptive parents in violation of R.C. 3107.011, it is not clear that a violation of this statute divests the probate court of jurisdiction to hear the proceeding. As noted by the Ninth District Court of Appeals, R.C. 3107.011 fails to specify what sanctions a court may impose upon finding a violation of the statute. In Re Adoption of Baby Doe, Summit County App. No. 19279 (April 14, 1999), 1999 WL 241379. In Baby Doe, the Ninth District reversed the decision of the Summit County Probate Court, which held that upon a finding of a violation of R.C. 3107.011, the remedy was to exclude the prospective adoptive parent from ever adopting where the court found that the maternal grandmother of the child "arranged" this adoption. Id. supra. The Court further held that it was beyond the probate court's discretion to fashion a remedy for a violation of R.C. 3107.011. Further, the parties are now being represented by counsel from different firms. Moreover, "absent a patent and unambiguous lack of jurisdiction, `a court having general subject-matter jurisdiction can determine its own jurisdiction, and a party challenging that jurisdiction has an adequate remedy by appeal.' " State ex rel. Powell v. Markus, 115 Ohio St.3d 219, 2007-Ohio-4793, 8, quoting State ex rel. Shimko v. McMonagle (2001), 92 Ohio St.3d 426, 428-429. 17

Accordingly, this issue also appears to be one of first impression, and as such, falls within the discretion of the Respondent. CONCLUSION Respondent's actions in the case sub judice an exercise of judicial discretion that is authorized by law, and Respondent did not abuse his discretion nor completely disregard applicable law in rendering the decisions as alleged. As such, Relator has failed to establish that she is entitled to either a writ of prohibition or a writ of mandamus. Respectfully submitted, STEPHEN K. HALLER Prosecuting Attorney Greene County, Ohio By: Elizab6th A. Ellis (0074332) Civil Division Chief Attorney for Judge Gano 55 Greene Street - First Floor Xenia, OH. 45385 (937) 562-5669 (937) 562-5258 - Fax 18

CERTIFICATE OF SERVICE The undersigned hereby certifies that a copy of the foregoing Answer of Respondents has been sent by regular U.S. Mail to the following parties this 18th day of September, 2012: Robert K. Hendrix, Attorney for Relator, 87 S. Progress Drive, Xenia, OH 45385. By: Elizabet A. Ellis (0074332) Civil Division Chief Attorney for Judge Gano 55 Greene Street - First Floor Xenia, OH. 45385 (937) 562-5669 (937) 562-5258 - Fax 19