¶1concurring in part and dissenting in part.
¶2*382The majority opinion properly concludes that R. C. 2151.27 and Juv. R. 10(B)(1) require that particular facts be recited in a complaint filed in Juvenile Court in a dependency action, and that the absence of such particularity renders the complaint insufficient to confer jurisdiction upon the Juvenile Court.
¶3R. C. 2151.27 provides that “ … the complaint must allege the particular facts upon which the allegation of … dependency … is based.”
¶4Juv. R. 10(B)(1) requires the pleader to “ [s]tate in ordinary and concise language the essential facts which bring the proceeding within the jurisdiction of the court … # j y
¶5A majority of this court concedes that the complaint filed in the cause at bar, which purported to confer jurisdiction upon the Juvenile Court of Ashtabula County, is deficient in light of R. C. 2151.27 and Juv. R. 10(B) (i). However, a majority of this court denies the relief requested because appellant allegedly selected an inappropriate procedural remedy.
¶6• I fully agree that the extraordinary writ of habeas corpus is not to be used as a substitute for appeal. In re Piazza (1966), 7 Ohio St. 2d 102, 103. However, where, as in this case, the writ is being used to contest the jurisdiction of the Juvenile Court to make even a temporary order of custody in the absence of “essential” or “particular” facts being alleged in the complaint, then, in my judgment, habeas corpus affords an appropriate remedy.
¶7Paragraph three of the syllabus in In re Frinzl (1949), 152 Ohio St. 164, states:
¶8“Although under Section 12165, General Code, a writ of habeas corpus will not be allowed if it appears that the person alleged to be restrained of his liberty is confined by virtue of a judgment or order of a court of record and that the court or magistrate had jurisdiction to make the order, a, writ may issue where the court was without jurisdiction to make the order and it is void ab initio.” (Emphasis added.)
¶9*383See, also, Williams v. Williams (1975), 44 Ohio St. 2d 28.
¶10In this instance, the writ of habeas corpus is being employed to test the immediate right to possession of the children. See May v. Anderson (1953), 345 U. S. 528. While it is not my intention to widen the sphere encompassing the use of extraordinary remedies, and while the course plotted by the majority is not totally without merit, to me, it seems more equitable to approve the procedure utilized by appellant under the facts of this case. Allowance of the writ in this case would not extend the circumstances in which the remedy of habeas corpus may be utilized for, as stated in In re Frind, supra, at page 174, due to the Juvenile Court’s lack of jurisdiction, the present attack upon its order is “not collateral but direct.”
¶11Appellant is a resident of the state of Michigan. She came, with her two children, to Ohio, to visit her mother. While in this state she became ill, and required hospitalization. Five days later, and while appellant was still hospitalized, her mother instituted the aforementioned dependency action. As previously stated, it is undisputed that the dependency complaint filed by appellant’s mother is totally devoid of factual support, for no facts are alleged therein. Such facts are required, however, by R. C. 2151.27 and Juv. R. 10(B)(1). Nevertheless, pursuant to the majority opinion, appellant continues to be deprived of her children.
¶12The writ of habeas corpus is available to contest an order of a court void ab initio due to the absence of jurisdiction. In re Frinzl, supra.The writ is also available to determine the right of a parent to the immediate possession of her children. May v. Anderson, supra.Appellant, in this cause, seeks a determination of her right to the immediate possession of her children as a result of a court order, void a.b initio, depriving her of custody. The writ of habeas corpus should be allowed.
¶13For the foregoing reasons, I concur in paragraph one of the syllabus, but dissent from the judgment rendered herein.