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State ex rel. Garrett v. Costine

Supreme Court of Ohio

April 26, 2018

The State ex rel. Garrett
v.
Costine, Judge.

          Submitted November 21, 2017

         In Prohibition.

          Erik L. Smith, for relator.

          Daniel P. Fry, Belmont County Prosecuting Attorney, and David K. Liberati, Assistant Prosecuting Attorney, for respondent.

          Per Curiam

         {¶ 1} This original action involves an interstate adoption dispute between the grandmother and aunt of a minor child. Relator, Tamalie Garrett, seeks a writ of prohibition against respondent, Belmont County Probate Judge J. Mark Costine, to require him to vacate an order granting the adoption petition filed by Tamalie's daughter, Elizabeth Garrett. Because Judge Costine patently and unambiguously lacked jurisdiction over the adoption petition, we grant the writ and order Judge Costine to vacate the adoption decree entered in Belmont County Probate Court case No. 16 AD 23.

         Background

         {¶ 2} Tamalie's granddaughter, G.G., was born on June 29, 2011, in West Virginia to Amanda Garrett.

         The West Virginia litigation

         {¶ 3} In December 2011, the Family Court of Hancock County, West Virginia, entered an agreed order of guardianship. The order designated Elizabeth Garrett, Amanda's sister, as G.G.'s legal guardian, see W.Va.Code Ann. 44-10-1 et seq., and awarded Tamalie visitation with G.G. on a weekly basis and annually on Christmas Day and the day after Christmas.

         {¶ 4} In the summer of 2012, Elizabeth and G.G. moved to Ohio. There is no indication that Tamalie ever sought to register the visitation order in Ohio. Four years later, on July 26, 2016, Tamalie filed a petition in the West Virginia family court to modify the 2011 visitation order. The next month she filed a petition to hold Elizabeth in contempt for violating the 2011 visitation order. Elizabeth and Tamalie entered mediation and, on October 21, 2016, they advised the West Virginia court that they had reached an agreement with regard to the parenting and visitation issues involved in the case.

         {¶ 5} In April 2017, based on the developments detailed below, the West Virginia court dismissed Tamalie's petition for contempt without prejudice.

         The Ohio litigation

         {¶ 6} Unbeknownst to Tamalie, on October 19, 2016, while the petitions to modify visitation and for contempt were pending in West Virginia, Elizabeth filed a petition to adopt G.G. in Belmont County Probate Court. The parties stipulate that at some point before the filing of the adoption petition, Amanda, the biological mother, "executed a permanent surrender agreement regarding" G.G. and that the Belmont County ...


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