State ex rel. A.B. v. Stucki

[Cite as State ex rel. A.B. v. Stucki, 2020-Ohio-4968.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO EX REL. A.B.
Relator C.A. No. 29765
v.
SUMMIT COUNTY JUVENILE JUDGE ORIGINAL ACTION IN
DAVID E. STUCKI MANDAMUS
Respondent
Dated: October 21, 2020
PER CURIAM.
{¶1} Relator, A.B., has petitioned this Court for a writ of mandamus directed to
Respondent, Judge David Stucki, sitting by assignment in the Summit County Juvenile Court.
Judge Stucki moved to dismiss and A.B. responded in opposition. For the following reasons,
this Court grants the motion to dismiss.
{¶2} According to A.B.’s complaint, he is the natural father of three children, born
during his marriage to Mother. After their divorce, Mother had custody and Father had visitation.
Several years later, complaints were filed regarding the children with Summit County Children
Services. The Summit County Juvenile Court held a hearing and adjudicated the children
dependent. Later, the Juvenile Court ordered the children to remain in Mother’s custody and
suspended Father’s visitation. Throughout the case, there were questions about whether the
children wanted to visit with Father. For his part, Father argued that Mother engaged in parental
alienation.
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{¶3} The Juvenile Court held a five-day hearing on custody and visitation. At the
conclusion of the hearing, the Juvenile Court retained the children in the legal custody of Mother
and did not grant Father visitation.
{¶4} Father appealed to this Court. He argued that the Juvenile Court erred by failing
to modify the case plan to include an assessment to address parental alienation by Mother. The
Juvenile Court heard his expert witness’s testimony on parental alienation, but discounted it
because, in part, the expert did not interview the children or observe them with either Mother or
Father.
{¶5} This Court concluded that the Juvenile Court should have considered Father’s
motion to modify the case plan: “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.” In re M.B., 9th Dist. Summit No. 29180, 2019-Ohio-3166, ¶ 26.
This Court reversed the Juvenile Court’s judgment and remanded for further proceedings. Id. at
¶ 28.
{¶6} According to the complaint, on remand, Judge Stucki was assigned as a visiting
judge. Judge Stucki held several status conferences and ordered the appointment of a “neutral
evaluator for alienation/custody.” He ordered the expert to clinically assess and/or treat the
children for parental alienation. His order further stated that the expert “is not ordered to find,
or not find Parental Alienation.”
{¶7} Father objected to this order. He argued that the appointed expert was not
qualified in the field of parental alienation and that Judge Stucki specifically allowed the expert
to avoid a determination of whether parental alienation existed. Father further argued that this
Court’s decision implied that the expert appointed must be an expert in parental alienation. From
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the complaint, and the attached documents, it appears that further hearings were cancelled as the
Juvenile Court dealt with the coronavirus pandemic.
{¶8} Father filed a Petition for Writ of Mandamus to ask this Court to order Judge
Stucki to follow this Court’s mandate by immediately appointing a qualified expert in parental
alienation to assess and/or treat the children for parental alienation.
Requirements for a Writ of Mandamus and Motion to Dismiss
{¶9} Mandamus is an extraordinary remedy, to be issued with great caution and
discretion and only when the way is clear. State ex rel. Taylor v. Glasser, 50 Ohio St. 2d 165,
166 (1977). The purpose of mandamus is to compel the performance of an act which the law
specially enjoins as a duty resulting from an office, trust, or station. Id.
{¶10} The Ohio Supreme Court has set forth the requirements for a writ of mandamus:
A writ of mandamus is “a writ, issued in the name of the state to an inferior
tribunal, a corporation, board, or person, commanding the performance of an act
which the law specifically enjoins as a duty.” R.C. 2731.01. To be entitled to
mandamus relief, [relator] must establish by clear and convincing evidence (1) a
clear legal right to the requested relief, (2) a clear legal duty on the part of the
respondents to provide it, and (3) the lack of an adequate remedy in the ordinary
course of the law. State ex rel. Love v. O’Donnell, 150 Ohio St. 3d 378, 2017-
Ohio-5659, 81 N.E.3d 1250, ¶ 3.
State ex rel. Russell v. Klatt, 159 Ohio St. 3d 357, 2020-Ohio-875, ¶ 7.
{¶11} There are limitations and boundaries for a writ of mandamus. The writ is
“appropriate to require lower courts to comply with and not proceed contrary to the mandate of
a superior court.” Berthelot v. Dezso, 86 Ohio St. 3d 257, 259, 1999-Ohio-100. But a writ of
mandamus cannot compel the exercise of a permissive act. State ex rel. Xenia v. Greene Cty. Bd.
of Commrs., Slip Opinion No. 2020-Ohio-3423, citing State ex rel. Hodges v. Taft, 64 Ohio St. 3d
1, 4 (1992). It is also well settled that mandamus does not lie to control judicial discretion. State
ex rel. Martin v. Russo, Slip Opinion No. 2020-Ohio-829. This rule applies even if the judge has
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abused the judge’s discretion. Id. See, also, State ex rel. Tech. Construction Specialties, Inc. v.
DeWeese, 155 Ohio St. 3d 484, 2018-Ohio-5082.
{¶12} Dismissal of a petition for writ of mandamus is appropriate only if it appears
beyond doubt from the complaint that the relator can prove no set of facts warranting relief, after
all factual allegations of the complaint are presumed true and all reasonable inferences are made
in the relator’s favor. See, e.g., State ex rel. Martin v. Russo, Slip Opinion No. 2020-Ohio-829,
¶ 7.
Judge Stucki’s Motion to Dismiss and Father’s Response
{¶13} Judge Stucki moved to dismiss. He argued, among other things, that the petition
was premature because it anticipates that this Court’s mandate will not be followed. Father
responded and reiterated many of the same points he alleged in his petition.
Analysis
{¶14} As noted above, dismissal is appropriate only if it appears beyond doubt from the
complaint, presuming all factual allegations are true and all reasonable inferences are made in
Father’s favor, that Father can prove no set of facts warranting relief. Mandamus is the
appropriate remedy when a lower court fails to follow the mandate of a superior court. Berthelot,
86 Ohio St. 3d at 259. That is the essence of Father’s complaint: this Court entered a mandate
that required the trial court to do a specific act and the trial court has failed to follow that mandate.
Determining the Mandate
{¶15} We begin by determining the scope of this Court’s mandate. The Supreme Court
has recognized that the Ohio “Constitution does not grant to a court of common pleas jurisdiction
to review a prior mandate of a court of appeals.” State ex rel. Potain v. Mathews, 59 Ohio St. 2d
29, 32 (1979). “But the use of a writ of mandamus to enforce an appellate court’s mandate is
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reserved for extreme cases of direct disobedience.” State ex rel. Cowan v. Gallagher, 153 Ohio
St.3d 13, 2018-Ohio-1463, ¶ 12.
{¶16} Father focuses on paragraph ten of this Court’s decision in the direct appeal:
Father argues that the juvenile court erred by failing to modify the case plan to
include an assessment to determine whether the children rejected Father based on
parental alienation by Mother and, if so, to include a requirement for treatment to
address that specific issue. This Court agrees.
In re M.B. at ¶ 10. He also points to the conclusion of this Court’s decision, which remanded for
“further proceedings consistent with this opinion.” In re M.B. at ¶ 28.
{¶17} To properly consider Father’s argument, it is important to understand what
constitutes the “mandate.” According to App.R. 27, a “certified copy of the judgment shall
constitute the mandate.” The judgment serves as the mandate, and this Court issues a combined
“Decision and Journal Entry.” Thus, it is the entire opinion – the Decision and Journal Entry –
of the Court that sets forth its mandate.
{¶18} Father has pointed to two passages, separated by almost 20 paragraphs of
discussion and analysis, to identify the mandate. In its opinion, this Court recognized that Father
raised the concern about parental alienation early in the case. In re M.B. at ¶ 14. In reviewing
the procedural history of the underlying case, this Court again recognized that “Father repeatedly
raised his concerns * * *.” Id. at ¶ 17. This Court also recognized the difficulty Father’s expert
had in evaluating his claim because “she did not have access to the children’s records, Mother,
the ability to observe the children with either parent, or the children themselves, as she would
have had the issue been included as a case plan objective.” Id. at ¶17. Father attempted to have
the Juvenile Court address parental alienation at its last hearing, and the Juvenile Court heard
from Father’s expert witness, but the Juvenile Court “ultimately discounted it based, in part, on
the expert’s failure to interview the children or observe them with either parent.” Id. at ¶ 25.
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{¶19} After recounting this lengthy history, this Court addressed the merits of Father’s
argument:
Based on Father’s ongoing concern that Mother had manipulated the
children to reject Father, the children’s complete aversion to reestablishing a
relationship with Father despite their engagement in counseling and no contact
with Father for eleven months, and the unwillingness of CSB and the guardian ad
litem to take seriously Father’s allegations because the children were safe and
secure with Mother, the juvenile court should have at a minimum considered the
merits of 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, e.g., to
“respect and support the integrity of the child[ren]’s family unit.” See Ohio
Adm.Code 5101:2-40-02(A)(1). Father proposed an amendment to the case plan
as permitted by R.C. 2151.412(F)(2). He requested a hearing on the matter. The
juvenile court continued the hearing but then refused to consider any preliminary
matters that would extend the court’s jurisdiction and maintain the children under
the agency’s protective supervision to allow for further reunification efforts. As
in In re A.P., supra, 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.
(Emphasis added) In re M.B. at ¶ 26.
{¶20} This Court reversed and remanded for further proceedings consistent with this
opinion. Father contends that “further proceedings consistent with this opinion” serves as the
mandate and that it is tied directly to the language in paragraph ten:
Father argues that the juvenile court erred by failing to modify the case plan to
include an assessment to determine whether the children rejected Father based on
parental alienation by Mother, and, if so, to include a requirement for treatment
to address that specific issue. This Court agrees.
{¶21} Father asserts that this Court issued a narrow mandate: the matter is remanded
for further proceedings because the Juvenile Court erred by failing to modify the case plan to
include a parental alienation assessment. That combination of two separate sentences in a lengthy
opinion ignores the remainder of the decision. First, paragraph ten, which appears directly after
Father’s Assignment of Error, provides a summary of Father’s assigned error. While paragraph
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ten concludes that “[t]his Court agrees[,]” those three words cannot be read in isolation as the
mandate.
{¶22} This Court agreed there was error. In paragraph 26, this Court summarized
Father’s repeated efforts to ask the Juvenile Court to consider parental alienation. This Court
concluded that “the juvenile court should have at a minimum considered the merits of 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. at ¶ 26. At the end of paragraph 26, this
Court identified the proper procedure: the Juvenile Court should have fully considered whether
a case plan amendment was warranted.
{¶23} Thus, the mandate ordered that the matter was remanded for the Juvenile Court to
consider the merits of Father’s motion and whether a case plan amendment was warranted. That
was precisely the error Father assigned and that this Court sustained:
ASSIGNMENT OF ERROR II
THE COURT’S REFUSAL TO MODIFY THE CASE PLAN TO CLINICALLY
ASSESS THE CHILDREN AND/OR TREAT THE CHILDREN FOR
PARENTAL ALIENATION WAS AN ABUSE OF DISCRETION AND
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
Following the Mandate
{¶24} We conclude this Court’s mandate directed the Juvenile Court to consider the
merits of Father’s motion and whether a case plan amendment was warranted. We next must
determine whether Judge Stucki disobeyed this Court’s mandate on remand. A writ of mandamus
is the appropriate remedy to challenge a trial court’s failure to follow the mandate, but it is
reserved for extreme cases of direct disobedience. Cowan, 153 Ohio St. 3d 13, 2018-Ohio-1463,
¶ 12.
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{¶25} Judge Stucki, according to the complaint, scheduled a hearing in September, the
month after this Court’s decision was filed. Judge Stucki scheduled additional status conferences
over the next few months, ordered a division of payment of the costs for a parental alienation
evaluation, and appointed a doctor to conduct an evaluation.
{¶26} Father objected on two main points to Judge Stucki’s order to appoint a doctor.
First, Father argued that the doctor Judge Stucki selected to conduct the evaluation was not
qualified. Second, Father challenged Judge Stucki’s order because Judge Stucki wrote that the
doctor “is not ordered to find, or not find Parental Alienation.”
{¶27} As to Father’s first point, he argued that his expert witness, the one who testified
during the earlier hearing, was more qualified. Father also provided a list of other experts he
would be satisfied with. Judge Stucki cancelled the next scheduled hearing to allow the other
parties an opportunity to respond. Father noted in his complaint that Judge Stucki still has not
addressed the order appointing a doctor to which Father objected.
{¶28} Father further contended in his complaint that “[T]his Court has already
determined grounds exist to warrant a qualified parental alienation expert to evaluate the children
and determine whether they have been the victims of parental alienation * * *.” To this, he has
added two additional complaints: Judge Stucki has ignored this Court’s mandate “which
expressly requested a parental alienation evaluation” and Judge Stucki’s order to the doctor “to
find or not find parental alienation” directly contradicts this Court’s directive.
{¶29} To evaluate Father’s contentions, we return again to the language of this Court’s
decision. Nowhere in the opinion did this Court order that grounds exist to warrant a parental
alienation evaluation. Instead, this Court recognized that the Juvenile Court should have held a
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hearing to consider the merits of Father’s motion to modify the case plan. In re M.B. at ¶ 26.
This Court’s decision – its mandate – did not expressly require a parental alienation evaluation.
{¶30} Father’s second additional complaint concerns his disagreement with Judge
Stucki’s order to the doctor that “he was not ordered to find, or not find, parental alienation.”
Father’s challenge to this language is based on his view of the mandate, which we have already
determined is too narrow. In the context of the entire order, however, Judge Stucki ordered the
doctor to clinically assess and/or treat the children for parental alienation and report his findings
to the Court. That is consistent with this Court’s mandate.
{¶31} Finally, we recognize that mandamus does not lie to control judicial discretion.
State ex rel. Martin v. Russo, Slip Opinion No. 2020-Ohio-829. Judge Stucki exercised his
discretion in appointing a doctor to conduct an evaluation. Even if he abused his discretion in
selecting the doctor he did, mandamus does not provide a remedy. Id. See, also, State ex rel.
Tech. Construction Specialties, Inc. v. DeWeese, 155 Ohio St. 3d 484, 2018-Ohio-5082.
Conclusion
{¶32} Father sought a writ of mandamus to order Judge Stucki to comply with this
Court’s mandate. Judge Stucki moved to dismiss pursuant to Civ.R. 12(B)(6). After reviewing
the complaint and incorporated attachments, Judge Stucki’s motion to dismiss, and Father’s
response, this Court concludes that it appears beyond doubt from the complaint that Father can
prove no set of facts warranting relief, after all factual allegations of the complaint are presumed
true and all reasonable inferences are made in Father’s favor.
{¶33} Because A.B. is not entitled to a writ of mandamus, the motion to dismiss is
granted, and this case is dismissed.
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{¶34} Costs are taxed to A.B. 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.
LYNNE S. CALLAHAN
FOR THE COURT
HENSAL, J.
SCHAFER, J.
CONCUR.
APPEARANCES:
DANIEL A. LEISTER, Attorney at Law, for Relator.
SHERRI BEVAN WALSH, Prosecuting Attorney, and COLLEEN SIMS, Assistant Prosecuting
Attorney, for Respondent.