[Cite as Summit Cty. Children Servs. v. Stucki,

.]

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

SUMMIT COUNTY CHILDREN SERVICES

Relator C.A. No. 29911

v.

SUMMIT COUNTY JUVENILE JUDGE ORIGINAL ACTION IN PROCEDENDO DAVID E. STUCKI AND PROHIBITION

Respondent

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,

(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,

,

, ¶ 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,

,

, quoting Jefferson v. Bunting,

,

. 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.”

. 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,

, 2020-

Ohio-1071, ¶ 9, quoting State ex rel. Crabtree v. Franklin Cty. Bd. of Health,

(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,

,

.

{¶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.

.

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.,

. 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.”

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,

(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,

,

. 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,

(1995), quoting State ex rel. Hansen v. Reed,

(1992), quoting State ex

rel. Davey v. Owen,

(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,

(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,

,

, 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.

. Further, SCCS has not

demonstrated that a writ of procedendo will lie for the type of relief it seeks herein. State ex rel.

.

{¶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,

, discussing In re M.B., 2019-Ohio-

3166, 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,

. 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,

. 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,

(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,

,

. 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,

,

.

{¶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,

,

, 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,

,

, ¶ 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.

.

{¶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,

,

, 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,

,

, quoting State ex rel. Wellington v. Kobly,

,

, ¶ 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.