[Cite as Summit Cty. Children Servs. v. Stucki , 2021-Ohio-4584.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

SUMMIT COUNTY CHILDREN SERVICES

Relator

v. SUMMIT COUNTY JUVENILE JUDGE DAVID E. STUCKI Respondent C.A. No. 29911

ORIGINAL ACTION IN PROCEDENDO AND PROHIBITION

Dated: December 29, 2021

PER CURIAM. {¶1} Relator, Summit County Children Se rvices (“SCCS” or “the agency ”), has filed a Complaint for Writ of Prohibiti on and for Procedendo, as well a s a Motion for Stay. SCCS seeks a writ of prohibition to prevent Respondent, Judge David E. Stu cki, from (1) requiring the agency to contract with a court-appointed evaluator, and (2) holding t he agency’s Executive Director in contempt for not complying with his order. SCCS seeks a writ o f procedendo to compel Judge Stucki to hold an evidentiary hearing. Additionally, SCCS seek s a stay of Judge Stucki’s order and any contempt proceedings pe nding a ruling upon its complain t. Judge Stucki has moved to dismiss the complaint, SCCS has responded in opposition to the motion to dismiss, and Judge Stucki has filed a reply. This Court also has received a Motio n for Emergency Ruling on Contempt Issue and Remand to the Trial Court. That motion has been filed by one of the parties in the underlying juvenile court case that led to this original action. SCCS has responded to theC.A. No. 29911 Page 2 of 12 Motion for Emergency Ruling by filing a Motion to Strike. For the following reasons, this Court grants the motion to dismiss a nd denies all other outstanding m otions. Reviewing the Motion t o Dismiss and the Materials Attached Ther eto {¶2} When this Court reviews a motion to dismiss under Civ.R. 12(B)( 6), we must presume that all of the factual allegations in the complaint ar e true and make all reasonable inferences in favor of the nonmoving party. State ex rel. Seikbert v. Wilkinson , 69 Ohio St.3d 489, 490 (1994). A complaint can onl y be dismissed when, havin g viewed the complaint in this way, it appears beyond doubt that the relator can prove no set of facts that would entitle him to the relief requested. Goudlock v. Voorhies , 119 Ohio St.3d 389, 2008-Ohio-4787, ¶ 7. {¶3} “Typically, ‘courts cannot rely on evidence or allegations outs ide the complaint to decide a Civ.R. 12(B)(6) motion to dismiss.’” State ex rel. Evans v. Mohr , 155 Ohio St.3d 579, 2018-Ohio-5089, ¶ 6, quoting Jefferson v. Bunting , 140 Ohio St.3d 62, 2014-Ohio-3074, ¶ 11. If a motion to dismiss depends on extrinsic evidence, a co urt generally must “convert the motion to dismiss into a motion for summary judgment and provid e the opposing party with notice and an opportunity to respond.” Jefferson at ¶ 12. However, “‘[m]at erial incorporated in a complaint may be considered part of the complaint for purpose s of determining a Civ.R. 12(B)(6) motion to dismiss.”” State ex rel. Peoples v. Schneider , 159 Ohio St.3d 360, 2020- Ohio-1071, ¶ 9, quoting State ex rel. Crabtree v. Franklin Cty. Bd. of Health , 77 Ohio St.3d 247, 249 (1997), fn. 1. Moreover, “a c ourt may take notice of the d ocket and record in a closely related case to determine whether the current complaint states a claim for relief.” State ex rel. Neguse v. McIntosh , 161 Ohio St.3d 125, 2020-Ohio-3533, ¶ 18. {¶4} Judge Stucki attached to his motion to dismiss (1) journal entr ies that he and his predecessor issued in the underlying juvenile court case in thi s matter, (2) a motion filed by theC.A. No. 29911 Page 3 of 12 father in the underlying juvenile court case, (3) a prior appel late decision that this Court issued in the underlying juvenile court case, and (4) a prior decision that this Court issued in response to a writ of mandamus filed by th e father in the juvenile court case. SCCS referred to this Court’s prior appellate decision and prio r mandamus decision in its com plaint. Additionally, the juvenile

court orders that SCCS attached t o its complaint refer to those decisions. Because this Court’s prior decisions are incorporated into the agency’s complaint, w e will consider them in ruling on Judge Stucki’s motion to dismiss and the agency’s complaint. See State ex rel. Peoples at ¶ 9. To the extent Judge Stucki attached other materials to his moti on and to the extent SCCS attached additional materials to its response, this Court need not deter mine whether those materials are

reviewable in the context of a m otion to dismiss, as they are n ot dispositive to our review. Background {¶5} According to the complaint and this Court’s prior decisions, SC CS initiated an abuse and dependency action that led to three children being ad judicated dependent, placed in their mother’s legal custody, a nd placed under the agency’s pro tective supervision. The children’s father later sought a reallocation of custody and mo ved to modify the case plan to address his concerns about paren tal alienation by the mother. Meanwhile, SCCS filed a motion to terminate its protective supe rvision. The juvenile court sc heduled the matter for final hearing and did not rule upon the father’s motion to modify the case pl an before the hearing. Instead, the father presented evidence of par ental alienation at the final h earing. When the hearing concluded, the juvenile court denied the f ather’s motion to modify the cas e plan, as well as his other pending motions, and granted the agency’s motion to terminate protectiv e supervision. The father then appealed from that judgment.C.A. No. 29911 Page 4 of 12 {¶6} On appeal, the father argued that the juvenile court had erred by proceeding to final judgment without first addressing his motion to modify th e case plan to include an assessment to address parental alienation by the mother. This Court agreed and determined that “the juvenile court should have at a minimum considered the mer its of [the father’s] motion to modify the case plan at a time when any issue could still be ad dressed to effect the primary goals of supportive services * * *.” In re M.B. , 2019-Ohio-3166, at ¶ 26. We noted that “the proper procedure would have been for t he juvenile court to fully consi der whether a case plan amendment was warranted in a separate hearing in advance of the final dispositional hearing.”

Id. This Court sustained the fathe r’s argument, reversed the judg ment of the juvenile court, and

remanded the matter for further proceedings. Id. at ¶ 28. {¶7} According to the complaint and attachments thereto, on remand, the juvenile court ordered that the case plan be am ended “to require an assessment to determine if the children have rejected their father due to par ental alienation * * *.” The j uvenile court further ordered the parties to submit for its consideration the names of evaluators who might assess the children, updated financial statements regarding their ability to pay for the evaluator, and any arguments they might have as to the apporti onment of the evaluator’s fees . When the father, the mother, and SCCS responded, there was a “m utual exclusion” of the evalu ators that each of the parties had proposed. The juvenile court found that the exclusion “lim it[ed] [it] to find[ing] an appropriate expert, far outside t he greater Summit County, Ohio area, not listed by any of the parties.” The juven ile court appointed an evaluator with offic es in California and Hawaii and ordered the parties to “contact [the evaluator] and [make] nece ssary arrangements for payment of his fees and expenses within 14 days of the date of [the cou rt’s] order.” The juvenile court

indicated that the evaluator s hould clinically assess and/or tr eat the children for parentalC.A. No. 29911 Page 5 of 12 alienation through “whatever type of assessment his expertise w ould dictate” so as to provide the parties and the court “insight on how to best provide Case Plan and other services to these

children to assist in their devel opment and to provide for thei r best interests.” The juvenile court

indicated that the father and th e mother would each be responsi ble for paying 10% of the

evaluator’s fees and costs and SCCS would be responsible for th e remaining 80%. In doing so, the juvenile court rejected sever al arguments that SCCS raised regarding the cour t’s authority to order the agency to pay a portion of the evaluator’s fees. The juvenile court indicated that a failure to timely comply with its orders might constitute a bas is for a future finding of contempt. {¶8} According to the complaint, SCCS contacted the evaluator’s prac tice to gather

information about his fees and licensing. SCCS determined that the evaluator might not be able to obtain a temporary license to practice in Ohio and, in any e vent, that the costs and fees of his services would be approximately $60,000. SCCS filed another mo tion to terminate protective supervision, a motion to modify t he juvenile cour t’s selection of the evaluator, and a motion to modify the allocation of responsibility for his costs and fees. Additionally, the father filed a motion in which he asked the juve nile court to de signate a diff erent expert. {¶9} The complaint alleges that the juvenile court scheduled the mat ter for a hearing on the pending motions, but the hearing never occurred. It was rescheduled several times due to

COVID-19 and then continued because the father filed a writ of mandamus in this Court. After this Court denied the writ, the juvenile court scheduled the matter for a status hearing. It also ordered the parties to file written documentation of their comp liance with its prior order to contact the evaluator and make financial arrangements for the payment o f his costs and fees. SCCS responded by moving for a heari ng on all pending motions and re questing a stay of the order for written documentation. Following the agency’s filing, the juve nile court issued a journal entryC.A. No. 29911 Page 6 of 12 in which it determin ed that none of the par ties had complied wi th its previous orders concerning the evaluator. The juvenile court indicated that its orders re garding the evaluator “[were] not changing and no party [had] a legitimate basis to delay their c ompliance.” The juvenile court noted that the matter had been litigated twice before this Cour t of Appeals without success and that its orders complied with our mandates. Based on the agenc y’s failure to comply with its previous orders, the juvenile court directed the Executive Dire ctor of SCCS to appear and show cause as to why she should not be found in contempt. The juven ile court scheduled the contempt hearing for the same day as the status hearing. {¶10} SCCS has filed a Complaint for Writ of Prohibition and for Proc edendo, as well as a Motion to Stay. SCCS asks th is Court to prohibit the tria l court from ordering it to contract with the evaluator the juvenile court selected and from holding its Executive Director in contempt. Further, SCCS asks th is Court to compel the juvenile court to conduct a hearing to receive evidence on the agency’s motions and to decide whether an amendment to the case plan

would be in the children’s best interest. SCCS also asks this Court to stay the orders of the juvenile court until this Court resolves the agency’s complaint . We begin by addressing the agency’s request for a writ of procedendo.

Writ of Procedendo {¶11} “A writ of procedendo is appropria te when a court has either re fused to render a judgment or has unnecessarily d elayed proceeding to judgment.” State ex rel. Weiss v. Hoover , 84 Ohio St.3d 530, 532 (1999). To obtai n a writ of procedendo, SCCS must establish that it has a clear legal right to require Judge Stucki to proceed, that th e judge has a clear legal duty to proceed, and that there is no adequate remedy available in the ordinary course of law. State ex

rel. Ward v. Reed , 141 Ohio St.3d 50, 2014-Ohio-4512, ¶ 9. A writ of procedendo “‘‘is merelyC.A. No. 29911 Page 7 of 12 an order from a court of superior jurisdiction to one of inferi or jurisdiction to proceed to judgment. It does not in any case attempt to control the infer ior court as to what judgment should

be.’’” State ex rel. Sherrills v. Cuyahoga Cty. Court of Common Pleas , 72 Ohio St.3d 461, 462 (1995), quoting State ex rel. Hansen v. Reed , 63 Ohio St.3d 597, 600 (1992), quoting State ex rel. Davey v. Owen , 133 Ohio St. 96, 106 (1937). Nor does it “lie to control or interfere with ordinary court procedures or process.” State ex rel. St. Sava Se rvian Orthodox Church of Cleveland v. Riley , 36 Ohio St.2d 171, 174 (1973). {¶12} SCCS filed its motions to terminate protective supervision, to modify the selection of the evaluator, and to modi fy the allocation of responsibilit y for his costs and fees in February 2020. According to SCCS, those motions remain pending with the juvenile court, and Judge

Stucki has failed to hold a hear ing on them. SCCS argues that this Court, in the prior appeal and the prior mandamus action, never directed the juvenile court to summarily order an evaluation for parental alienation. It is t he agency’s position that “the directive from the Court of Appeals

was for the Juvenile Court to c onduct a hearing on [the] father ’s request to modify the Case Plan * * *.” SCCS asks this Court to issue a writ of procedendo, or dering the juvenile court to hold a hearing (1) to receive evidence on the pending motions, and (2) to determine whether an amendment to the case plan to re quire an evaluation would be in the best interest of the children. {¶13} As previously noted, dismissal is appropriate only if it appear s beyond doubt from the complaint, viewing all factual allegations as true and maki ng all reasonable inferences in favor of SCCS, that the agency can prove no set of facts warran ting relief. See Goudlock , 119 Ohio St.3d 389, 2008-Ohio-4787, at ¶ 7. Insofar as the agency seeks a writ of procedendo, this Court must conclude that dismissal of the agency’s complaint is warranted. SCCS has not demonstrated a clear legal right to an evidentiary hearing or a clear legal duty on the part of JudgeC.A. No. 29911 Page 8 of 12 Stucki to conduct such a hearing. See State ex rel. Ward at ¶ 9. Further, SCCS has not demonstrated that a writ of procedendo will lie for the type of relief it seeks herein. State ex rel.

Weiss at 532. {¶14} SCCS relies on the prior mandates of this Court to establish it s legal right to a hearing and a legal duty on the part of Judge Stucki. It was n ever the order of this Court, however, that Judge Stucki conduct an evi dentiary heari ng. Our mandate in the prior appeal was “that the matter [be] remanded for the Juvenile Court to consider the mer its of [the father’s] motion [to modify the case plan] and whether a case plan amendment was war ranted.” State ex rel. A.B. v.

Stucki , 9th Dist. Summit No. 29765, 2020-Ohio-4968, ¶ 23, discussing In re M.B. , 2019-Ohio3166, at ¶ 23. The method that the juvenile court chose to eff ectuate that mandate was a matter of judicial discretion, and we l ater determined that Judge Stuc ki complied with our mandate when he “ordered the [evaluator] to clinically assess and/or treat t he children for parental alienation and report his findings to the Court.” State ex rel. A.B. at ¶ 30. Thus, SCCS has not established that this Court directed the juvenile court to conduct an evide ntiary hearing such that a legal duty or right was created. {¶15} SCCS also has not established that it is entitled to a writ of procedendo because procedendo will not “lie to control or interfere with ordinary court procedures or process.” State

ex rel. St. Sava Servian Orthodox Church of Cleveland , 36 Ohio St.2d at 174. There is no

indication in this matter that J udge Stucki has refused to rend er a judgment or has unnecessarily delayed proceeding to judgment. See State ex rel. Weiss , 84 Ohio St.3d at 532. Accordingly, SCCS can prove no set of facts that would entitle it to a writ of procedendo. For the reasons outlined herein, this Court grants Judge Stucki’s motion to dis miss the agency’s complaint for a writ of procedendo.C.A. No. 29911 Page 9 of 12 Writ of Prohibition {¶16} For a writ of prohibition to issue, a relator must establish th at: (1) the respondent is about to exercise judicial pow er, (2) the exercise of that p ower is unauthorized by law, and (3) the denial of the writ will result in injury for which no other adequate remedy exists. State ex rel. Jones v. Garfield Hts. Mun. Court , 77 Ohio St .3d 447, 448 (1997). The third element need

not be established if the absence of jurisdiction “is patent an d unambiguous.” State ex rel. Drouhard v. Morrow Cty. Bd. of Commissioners , 161 Ohio St.3d 357, 2020-Ohio-4160, ¶ 18. If subject matter jurisdiction is present and a relator has an ade quate remedy at law, however, “prohibition will not issue.” Id. at ¶ 19. A relator bears the burden of proving its entitlemen t to a writ of prohibition by clear and convincing evidence. State ex rel. Federle v. Warren Cty. Bd. of Elections , 156 Ohio St.3d 322, 2019-Ohio-849, ¶ 10. {¶17} As previously noted, Judge Stuck i selected an evaluator to cond uct a clinical

assessment and/or treat three ch ildren in a dependency action f or parental alienation. In doing so, he ordered the partie s to arrange for the payment of the ev aluator’s fees and expenses and he deemed SCCS financially responsib le for 80% of those fees and e xpenses. When the agency

failed to set forth evidence th at it had complied with Judge St ucki’s order, he ordered its Executive Director to appear a nd show cause as to why she shoul d not be held in contempt. {¶18} Viewing all factual allegations as true and making all reasonab le inferences in favor of SCCS, this Court cannot conclude that the agency has a lleged facts showing a patent and unambiguous lack of subject matter jurisdiction on the part of Judge Stucki. See Goudlock , 119 Ohio St.3d 389, 2008-Ohio-4787, at ¶ 7. Juvenile courts ha ve subject matter jurisdiction to hear dependency and neglect cas es and to determine the custody of any child who is not a ward

of another state court. State ex rel. Brooks v. O’Malley , 117 Ohio St.3d 385, 2008-Ohio-1118, ¶C.A. No. 29911 Page 10 of 12 8, citing R.C. 2151.23(A)(1) and (A)(2). When SCCS filed its a buse and dependency complaint, it invoked the subject matter ju risdiction of the juvenile cour t. Accordingly, SCCS is entitled to a writ of prohibition only if it de monstrates that Judge Stucki is about to exercis e judicial power in a manner unauthorized by law and that the denial of its writ will result in an injury for which no other adequate r emedy exists. See State ex rel. Jones at 448. {¶19} Once again viewing all factual allegations as true and making a ll reasonable inferences in favor of SCCS, th is Court cannot conclude that th e agency has alleged facts showing that a denial of its writ will result in an injury for which no other remedy exists. See Goudlock , 119 Ohio St.3d 389, 2008-Ohio-4787, at ¶ 7. SCCS argues that i t will lack an adequate remedy at law if its Executive Director is held in contempt because, t o purge the contempt, the agency will be compelled to contract with the evaluator and expend pub lic funds. It also argues that “[i]t will be difficult to make the parties whole again if criminal p enalties have been levied against [its] executive director.” This Court shares many of the conce rns raised by SCCS. The Supreme Court has recognized, however, tha t “‘[a]ppealing a contempt or der is an adequate remedy at law which will result in denial of [a writ of prohibition].’” State ex rel. Mason v. Burnside , 117 Ohio St.3d 1, 2007-Ohio-6754, ¶ 15, quoting State ex rel. Wellington v. Kobly , 112 Ohio St.3d 195, 2006-Ohio-6571, ¶ 29. Moreover, according to the complaint, Ju dge Stucki has yet to hold the Executive Director in contempt. He has only ordered the Execut ive Director to appear and show cause as to why the agency has not adhered to his directives. The agency, therefore, will have an opportunity to present evidence and argument at the show cau se hearing. Because the show cause hearing and an appeal from any contempt order that issues constitute potential avenues for relief, we cannot conclude that the agency has sufficiently all eged the lack of an adequate remedy

at law. See Goudlock at ¶ 7. Thus, the agency is not entitled to a w rit of prohibi tion.C.A. No. 29911 Page 11 of 12 {¶20} To summarize, dismissal of the agency’s claim for prohibition i s warranted because the agency has not sufficiently alleged the lack of an adequate remedy at law should a writ of prohibition fail to issue. This Court cautions that ou r order should not be read as an endorsement of Judge S tucki’s orders or a n indication that he h as acted within the bounds of the authority afforded him by statute in requiring the agency to co ntract with and expend public funds on the evaluator he appointed. Again, this Court shares many o f the concerns raised by SCCS. It is only our conclusion that S CCS cannot prevail upon its cla im because it has not satisfied the third element of the test for prohibition. On that basis, Judg e Stucki’s motion to dismiss is granted.

Conclusion {¶21} Because SCCS can prove no set of facts that would entitle it to the relief requested, the Complaint for Writ of Prohibition and for Procedendo is dis missed. Further, all outstanding

motions are denied. Costs of this action are taxed to Relator. The clerk of courts is hereby directed to serve upon all parties not in default notice of thi s judgment and its date of entry upon the journal. See Civ.R. 58(B).

DONNA J. CARR FOR THE COURT

HENSAL, J. CALLAHAN, J. CONCUR.C.A. No. 29911 Page 12 of 12

APPEARANCES:

DONALD J. MALARCIK and NOAH C. M UNYER, Attorneys at Law, for Re lator. KIMBERLY VANOVER RILEY and LISA M. ZARING, Attorneys at Law, fo r Respondent.