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.
                                                                                     C.A. No. 29765
                                                                                        Page 2 of 10

          {¶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
                                                                                       C.A. No. 29765
                                                                                          Page 3 of 10

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
                                                                                          C.A. No. 29765
                                                                                             Page 4 of 10

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
                                                                                     C.A. No. 29765
                                                                                        Page 5 of 10

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.
                                                                                   C.A. No. 29765
                                                                                      Page 6 of 10

       {¶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
                                                                                   C.A. No. 29765
                                                                                      Page 7 of 10

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.
                                                                                     C.A. No. 29765
                                                                                        Page 8 of 10

       {¶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
                                                                                       C.A. No. 29765
                                                                                          Page 9 of 10

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.
                                                                                   C.A. No. 29765
                                                                                     Page 10 of 10

       {¶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.
Share Review:
Yes it is. Based on the user review published on Beware.org, it is strongly advised to avoid State ex rel. A.B. v. Stucki in any dealing and transaction.
Not really. In spite of the review published here, there has been no response from State ex rel. A.B. v. Stucki. Lack of accountability is a major factor in determining trust.
Because unlike Beware.org, other websites get paid to remove negative reviews and replace them with fake positive ones.
State ex rel. A.B. v. Stucki is rated 1 out of 5 based on the reviews submitted by our users and is marked as POOR.
Never trust websites which offer a shady ‘advocacy package’ to businesses. Search for relevant reviews on Ripoff Report and Pissed Consumer to see more unbiased reviews.


>