2020 Ohio 4968
Ohio Ct. App.2020Background
- Relator A.B. (father) is the biological father of three children who were adjudicated dependent; mother retained legal custody and father’s visitation was suspended.
- After a five-day dispositional hearing the juvenile court kept custody with mother and denied father visitation; father claimed parental alienation by mother.
- Father appealed, arguing the juvenile court should have modified the case plan to include an assessment/treatment for parental alienation; the Ninth District reversed and remanded for "further proceedings consistent with this opinion."
- On remand Judge David Stucki (visiting judge) scheduled status conferences and appointed a neutral evaluator to clinically assess and/or treat the children for parental alienation, but ordered that the evaluator is "not ordered to find, or not find Parental Alienation."
- Father objected to the evaluator’s qualifications and to the language allowing the evaluator to avoid a finding; he filed a petition for a writ of mandamus asking this Court to compel Judge Stucki to appoint a qualified parental-alienation expert.
- The appellate court granted the judge’s motion to dismiss the mandamus petition, holding the prior mandate directed only that the juvenile court consider the merits of father’s motion to amend the case plan (not that it must appoint a specific expert), and mandamus cannot control judicial discretion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether relator has a clear right to mandamus to force compliance with the appellate mandate | A.B.: The Ninth Dist. mandate required a parental-alienation assessment and treatment; Judge Stucki failed to follow the mandate by appointing an unqualified evaluator and by permitting the evaluator to avoid making a parental-alienation finding | Stucki: The mandate required the juvenile court to consider the motion and whether a case-plan amendment was warranted; judge scheduled proceedings and appointed an evaluator; petition is premature | Court: Mandate required only consideration of the motion and possible case-plan amendment; relator showed no clear right to mandamus; dismissal granted |
| Whether the appellate mandate expressly ordered a parental-alienation evaluation | A.B.: The opinion’s language ("Father argues... this Court agrees") should be read as a narrow mandate commanding an evaluation for parental alienation | Stucki: The full opinion and journal entry constitute the mandate; the opinion only directed the juvenile court to consider the motion and whether amendment was warranted | Court: The mandate did not expressly require a parental-alienation evaluation; it ordered consideration of the motion and whether amendment was warranted |
| Whether mandamus may command the trial judge’s choice of evaluator or control discretionary appointment | A.B.: Remedy is necessary because judge appointed an unqualified evaluator and undermined the assessment by allowing no finding requirement | Stucki: Selection of an evaluator is a discretionary act; mandamus cannot control judicial discretion | Court: Mandamus will not control judicial discretion or compel a permissive act; even an abuse of discretion is not remedied by mandamus in this context |
| Whether the petition is premature or lacks an adequate remedy at law | A.B.: Immediate relief needed to protect children and enforce appellate mandate | Stucki: Hearing activity occurred and judge is addressing scheduling; petition anticipates noncompliance and is premature | Court: On the pleadings, relator could prove no set of facts entitling him to mandamus; dismissal appropriate |
Key Cases Cited
- State ex rel. Taylor v. Glasser, 50 Ohio St.2d 165 (Ohio 1977) (mandamus is an extraordinary remedy to compel performance of a duty)
- State ex rel. Love v. O’Donnell, 150 Ohio St.3d 378 (Ohio 2017) (elements required to obtain a writ of mandamus)
- State ex rel. Russell v. Klatt, 159 Ohio St.3d 357 (Ohio 2020) (discussion of mandamus standards)
- Berthelot v. Dezso, 86 Ohio St.3d 257 (Ohio 1999) (mandamus appropriate to require lower courts to follow appellate mandates)
- State ex rel. Hodges v. Taft, 64 Ohio St.3d 1 (Ohio 1992) (mandamus cannot compel the exercise of a permissive act)
- State ex rel. Cowan v. Gallagher, 153 Ohio St.3d 13 (Ohio 2018) (use of writ to enforce appellate mandate reserved for extreme, direct disobedience)
- State ex rel. Potain v. Mathews, 59 Ohio St.2d 29 (Ohio 1979) (limitations on common pleas reviewing an appellate mandate)
- Tech. Construction Specialties, Inc. v. DeWeese, 155 Ohio St.3d 484 (Ohio 2018) (mandamus does not control judicial discretion)