[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 Services (“SCCS” or “the agency”), has filed a 

Complaint for Writ of Prohibition and for Procedendo, as well as a Motion for Stay. SCCS seeks 

a writ of prohibition to prevent Respondent, Judge David E. Stucki, from (1) requiring the agency 

to contract with a court-appointed evaluator, and (2) holding the agency’s Executive Director in 

contempt for not complying with his order. SCCS seeks a writ of procedendo to compel Judge 

Stucki to hold an evidentiary hearing. Additionally, SCCS seeks a stay of Judge Stucki’s order 

and any contempt proceedings pending a ruling upon its complaint. 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 Motion 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 the 
C.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 and denies all other outstanding motions. 

Reviewing the Motion to Dismiss and the Materials Attached Thereto 

{¶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 are 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 only be dismissed when, having 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 outside 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 court generally must “convert the 

motion to dismiss into a motion for summary judgment and provide the opposing party with 

notice and an opportunity to respond.” Jefferson at ¶ 12. However, “‘[m]aterial incorporated in 

a complaint may be considered part of the complaint for purposes 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 court may take notice of the docket 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 entries that he and his 

predecessor issued in the underlying juvenile court case in this matter, (2) a motion filed by the 
C.A. No. 29911 

Page 3 of 12 

 

father in the underlying juvenile court case, (3) a prior appellate 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 the father in the juvenile court case. SCCS referred to this Court’s 

prior appellate decision and prior mandamus decision in its complaint. Additionally, the juvenile 

court orders that SCCS attached to its complaint refer to those decisions. Because this Court’s 

prior decisions are incorporated into the agency’s complaint, we 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 motion and to the extent SCCS attached 

additional materials to its response, this Court need not determine whether those materials are 

reviewable in the context of a motion to dismiss, as they are not dispositive to our review. 

Background 

{¶5} According to the complaint and this Court’s prior decisions, SCCS initiated an 

abuse and dependency action that led to three children being adjudicated dependent, placed in 

their mother’s legal custody, and placed under the agency’s protective supervision. The 

children’s father later sought a reallocation of custody and moved to modify the case plan to 

address his concerns about parental alienation by the mother. Meanwhile, SCCS filed a motion 

to terminate its protective supervision. The juvenile court scheduled the matter for final hearing 

and did not rule upon the father’s motion to modify the case plan before the hearing. Instead, the 

father presented evidence of parental alienation at the final hearing. When the hearing concluded, 

the juvenile court denied the father’s motion to modify the case plan, as well as his other pending 

motions, and granted the agency’s motion to terminate protective 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 the 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 merits of [the father’s] motion to 

modify the case plan at a time when any issue could still be addressed 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 the juvenile court to fully consider whether a case plan 

amendment was warranted in a separate hearing in advance of the final dispositional hearing.” 

Id. This Court sustained the father’s argument, reversed the judgment 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 amended “to require an assessment to determine if the children have 

rejected their father due to parental alienation * * *.” The juvenile 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 apportionment of the evaluator’s fees. When the father, the mother, 

and SCCS responded, there was a “mutual exclusion” of the evaluators that each of the parties 

had proposed. The juvenile court found that the exclusion “limit[ed] [it] to find[ing] an 

appropriate expert, far outside the greater Summit County, Ohio area, not listed by any of the 

parties.” The juvenile court appointed an evaluator with offices in California and Hawaii and 

ordered the parties to “contact [the evaluator] and [make] necessary arrangements for payment 

of his fees and expenses within 14 days of the date of [the court’s] order.” The juvenile court 

indicated that the evaluator should clinically assess and/or treat the children for parental 
C.A. No. 29911 

Page 5 of 12 

 

alienation through “whatever type of assessment his expertise would 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 development and to provide for their best interests.” The juvenile court 

indicated that the father and the mother would each be responsible for paying 10% of the 

evaluator’s fees and costs and SCCS would be responsible for the remaining 80%. In doing so, 

the juvenile court rejected several arguments that SCCS raised regarding the court’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 basis for a future finding of contempt. 

{¶8} According to the complaint, SCCS contacted the evaluator’s practice 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 event, that the costs and fees of his 

services would be approximately $60,000. SCCS filed another motion to terminate protective 

supervision, a motion to modify the juvenile court’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 juvenile court to designate a different expert. 

{¶9} The complaint alleges that the juvenile court scheduled the matter 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 compliance with its prior order to contact 

the evaluator and make financial arrangements for the payment of his costs and fees. SCCS 

responded by moving for a hearing on all pending motions and requesting a stay of the order for 

written documentation. Following the agency’s filing, the juvenile court issued a journal entry 
C.A. No. 29911 

Page 6 of 12 

 

in which it determined that none of the parties had complied with its previous orders concerning 

the evaluator. The juvenile court indicated that its orders regarding the evaluator “[were] not 

changing and no party [had] a legitimate basis to delay their compliance.” The juvenile court 

noted that the matter had been litigated twice before this Court of Appeals without success and 

that its orders complied with our mandates. Based on the agency’s failure to comply with its 

previous orders, the juvenile court directed the Executive Director of SCCS to appear and show 

cause as to why she should not be found in contempt. The juvenile 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 Procedendo, as well 

as a Motion to Stay. SCCS asks this Court to prohibit the trial court from ordering it to contract 

with the evaluator the juvenile court selected and from holding its Executive Director in 

contempt. Further, SCCS asks this 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 appropriate when a court has either refused to render a 

judgment or has unnecessarily delayed proceeding to judgment.” State ex rel. Weiss v. Hoover, 

84 Ohio St.3d 530, 532 (1999). To obtain a writ of procedendo, SCCS must establish that it has 

a clear legal right to require Judge Stucki to proceed, that the 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 merely 
C.A. No. 29911 

Page 7 of 12 

 

an order from a court of superior jurisdiction to one of inferior jurisdiction to proceed to 

judgment. It does not in any case attempt to control the inferior 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 Servian 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 modify the allocation of responsibility 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 hearing 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 the agency’s position that “the directive from the Court of Appeals 

was for the Juvenile Court to conduct a hearing on [the] father’s request to modify the Case Plan 

* * *.” SCCS asks this Court to issue a writ of procedendo, ordering 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 require an evaluation would be in the best interest of the children. 

{¶13} As previously noted, dismissal is appropriate only if it appears beyond doubt from 

the complaint, viewing all factual allegations as true and making all reasonable inferences in 

favor of SCCS, that the agency can prove no set of facts warranting 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 Judge 
C.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 its legal right to a 

hearing and a legal duty on the part of Judge Stucki. It was never the order of this Court, however, 

that Judge Stucki conduct an evidentiary hearing. Our mandate in the prior appeal was “that the 

matter [be] remanded for the Juvenile Court to consider the merits of [the father’s] motion [to 

modify the case plan] and whether a case plan amendment was warranted.” 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 effectuate that mandate was a matter 

of judicial discretion, and we later determined that Judge Stucki complied with our mandate when 

he “ordered the [evaluator] to clinically assess and/or treat the 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 evidentiary 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 Judge Stucki has refused to render 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 dismiss 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 that: (1) the respondent 

is about to exercise judicial power, (2) the exercise of that power 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 and 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 adequate remedy at law, however, 

“prohibition will not issue.” Id. at ¶ 19. A relator bears the burden of proving its entitlement 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 Stucki selected an evaluator to conduct a clinical 

assessment and/or treat three children in a dependency action for parental alienation. In doing 

so, he ordered the parties to arrange for the payment of the evaluator’s fees and expenses and he 

deemed SCCS financially responsible for 80% of those fees and expenses. When the agency 

failed to set forth evidence that it had complied with Judge Stucki’s order, he ordered its 

Executive Director to appear and show cause as to why she should not be held in contempt. 

{¶18} Viewing all factual allegations as true and making all reasonable inferences in 

favor of SCCS, this Court cannot conclude that the agency has alleged 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 have subject matter jurisdiction to 

hear dependency and neglect cases 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 abuse and dependency complaint, 

it invoked the subject matter jurisdiction of the juvenile court. Accordingly, SCCS is entitled to 

a writ of prohibition only if it demonstrates that Judge Stucki is about to exercise 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 remedy exists. See State ex rel. Jones at 448. 

{¶19} Once again viewing all factual allegations as true and making all reasonable 

inferences in favor of SCCS, this Court cannot conclude that the 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 it will lack an adequate remedy 

at law if its Executive Director is held in contempt because, to purge the contempt, the agency 

will be compelled to contract with the evaluator and expend public funds. It also argues that “[i]t 

will be difficult to make the parties whole again if criminal penalties have been levied against 

[its] executive director.” This Court shares many of the concerns raised by SCCS. The Supreme 

Court has recognized, however, that “‘[a]ppealing a contempt order 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, Judge Stucki has yet to hold the 

Executive Director in contempt. He has only ordered the Executive 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 cause 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 alleged the lack of an adequate remedy 

at law. See Goudlock at ¶ 7. Thus, the agency is not entitled to a writ of prohibition. 
C.A. No. 29911 

Page 11 of 12 

 

{¶20} To summarize, dismissal of the agency’s claim for prohibition is 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 our order should not be read as an 

endorsement of Judge Stucki’s orders or an indication that he has acted within the bounds of the 

authority afforded him by statute in requiring the agency to contract with and expend public funds 

on the evaluator he appointed. Again, this Court shares many of the concerns raised by SCCS. 

It is only our conclusion that SCCS cannot prevail upon its claim because it has not satisfied the 

third element of the test for prohibition. On that basis, Judge 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 dismissed. 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 this 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. MUNYER, Attorneys at Law, for Relator. 

KIMBERLY VANOVER RILEY and LISA M. ZARING, Attorneys at Law, for Respondent.