State v. Morrow Cnty. Court of Common Pleas

2022-Ohio-2549

STATE OF OHIO, EX REL, MORROW COUNTY JOB AND FAMILY SERVICES, CHILDREN SERVICES DIVISION, AND SUNDIE BROWN EXECUTIVE DIRECTOR, MORROW COUNTY JOB AND FAMILY SERVICES Relators v. MORROW COUNTY COURT OF COMMON PLEAS, JUVENILE DIVISION, AND HON. ROBERT C. HICKSON, JR. Respondents

No. 2022CA0007

Court of Appeals of Ohio, Fifth District, Morrow

July 25, 2022

Writ of Prohibition

For Relators

DREAMA K. REESE

Morrow County Job and Family Services

GEORGE D. JONSON

COOPER D. BOWEN

Montgomery Jonson, LLP

Judges: Hon. W. Scott Gwin, P.J. Hon. William B. Hoffman, J. Hon. Craig R. Baldwin, J.

OPINION

Hoffman, J.

{¶1} On May 13, 2022, Relators Morrow County Job and Family Services, Children Services Division, and Sundie Brown, Executive Director Morrow County Job and Family Services (collectively, "MCJFS") filed an Original Action for Writ of Prohibition. Respondents, Morrow County Court of Common Pleas, Juvenile Division, and The Honorable Robert C. Hickson, Jr. (collectively, "Judge Hickson") moved to dismiss the petition on June 2, 2022 based on mootness. Judge Hickson's motion is granted under Civ.R. 12(B)(6) because the writ does not present a facially viable claim for relief.

Background

{¶2} This original action stems from a complaint MCJFS filed on March 2, 2022, alleging abuse, neglect and/or dependency in the matters of two minor children. Judge Hickson conducted a shelter care hearing on March 4, 2022, and granted temporary custody of the minor children to MCJFS pending an adjudicatory hearing on the complaint. Judge Hickson thereafter conducted an uncontested adjudicatory hearing on April 8, 2022. The children were adjudicated dependent under R.C. 2151.04(C) and maintained in the temporary custody of MCJFS pending a disposition hearing.

{¶3} On April 27, 2022, MCJFS received a copy of the Journal Entry on Adjudicatory Hearing and Notice of Hearing signed by Judge Hickson on April 22, 2022.

{¶4} The entry states, in pertinent part:

This matter shall come before the Court upon Disposition Hearing on May 27, 2022, at 2:30 p.m. with MCJFS specifically ORDERED to timely subpoena all clinicians who have seen, or are seeing either mother or father at any time, more specifically Dr Prince[ss] Black, and that MCJFS is further ordered to obtain a written report (including all assessments and treatment reports) from any clinician and to file with the Court all reports no less than seven (7) days before the next court Hearing.

{¶5} (Emphasis sic.)

{¶6} Thereafter, MCJFS filed this writ of prohibition. MCJFS asserts Judge Hickson's Journal Entry is an exercise of judicial power that is unauthorized by law. MCJFS maintains the Morrow County Juvenile Court is a statutory court with limited jurisdiction that may only exercise those powers specifically conferred upon it by legislative action. MCJFS further contends under R.C. 2157.07 the juvenile court only has the powers and jurisdiction granted to it under Chapters 2151 and 2152 of the Revised Code. Specifically, MCJFS asserted Judge Hickson has no jurisdiction over "all clinicians" or Dr. Princess Black who Judge Hickson ordered to be subpoenaed by MCJFS for the disposition hearing.

{¶7} MCJFS points out Judge Hickson is not a party to the juvenile court proceedings and does not have a case-in-chief to present, does not bear the burden of proof and does not represent any clients in the underlying abuse, neglect and/or dependency case. Thus, MCJFS concludes Judge Hickson is not permitted to issue subpoenas by proxy or independently investigate matters pending before the juvenile court.

{¶8} MCJFS further alleges the Journal Entry states: "Intake Caseworker for MCJFS, Noelle Parish, was placed under oath and testified * * * Dr. Prince[ss] Black has been engaged to complete mother's assessment and will not be discussing possible criminal charges with the parents." MCJFS asserts Noell Parish provided no such sworn testimony at the adjudicatory hearing. Further, Dr. Princess Black is unknown to MCJFS and has not been hired to complete mother's assessment or to provide any case plan services to the family.^[1]

{¶9} Instead, the appointed guardian ad litem, Michelle Delery Stratman, provided Dr. Princess Black's name via email to all counsel and/or parties at the adjudicatory hearing. Ms. Stratman indicated Dr. Princess Black, a psychologist, performs psychological evaluations and/or assessments in an adjacent county and may be available to provide services to the parents.

{¶10} MCJFS asks this Court to issue a writ prohibiting Judge Hickson from issuing subpoenas, by proxy, for witnesses who are not subject to the jurisdiction of the juvenile court; not a party to the proceedings; and not presented by MCJFS as part of the state's case-in-chief. MCJFS also asks the Court to issue an order directing Judge Hickson to vacate the unlawful orders issued in these matters on April 22, 2022, and prohibit him from exercising judicial power to issue orders unauthorized by law.

{¶11} On June 2, 2022, Judge Hickson filed a Motion to Dismiss based on mootness. He asserts he vacated portions of the April 22, 2022 Journal Entry, in a Journal Entry filed on May 24, 2022, rendering the pending writ of prohibition moot. In their response to the dismissal motion, MCJFS acknowledges this fact but opposes dismissal of its writ on mootness identifying nine other cases where Judge Hickson has allegedly issued similar orders.

A. Applicability of mootness doctrine

{¶12} Although we find the current writ to be moot because Judge Hickson vacated a portion of his April 22, 2022 Journal Entry that serves as the basis for this writ, we will nonetheless address the merits. A recognized exception to the mootness doctrine exists for cases "capable of repetition, yet evading review[.] State ex rel. Cincinnati Enquirer v. Bronson, 191 Ohio App.3d 160, 2010-Ohio-5315, 945 N.E.2d 551, ¶ 8 (12th Dist.). It is within the Court's authority to raise this exception sua sponte. Park Lane Apartments v. Parks, 6th Dist. Lucas No. L-20-1208, 2021-Ohio-3510, ¶ 2. The exception applies under the following conditions: "(1) the challenged action is too short in duration to be fully litigated prior to its cessation or expiration and (2) there is 'a reasonable expectation that the same complaining party will be subjected to the same action again.'" State ex rel. Calvary v. Upper Arlington, 89 Ohio St.3d 229, 231, 729 N.E.2d 1182 (2000).

{¶13} The first element is satisfied here because Judge Hickson can amend his orders removing the challenged language before the abuse, neglect and/or dependency case is fully litigated. An amendment to the Journal Entry that removes challenged language precludes this Court's ability to address the issue on appeal. The second element is satisfied because the issue is clearly capable of repetition as pointed out by MCJFS in the nine other cases they reference where Judge Hickson allegedly ordered the issuance of similar subpoenas.

{¶14} Therefore, because the exception to the mootness doctrine applies, we will proceed to rule on the merits of the petition for writ of prohibition because the issues are "capable of repetition, yet evading review."

II. Elements for writ of prohibition and Civ.R. 12(B)(6) standard of review

A Writ of prohibition elements

{¶15} The purpose of a writ of prohibition is to stop an inferior court or judicial officer from acting beyond the scope of their jurisdiction. (Citation omitted.) State ex rel. Jones v. Suster, 84 Ohio St.3d 70, 73, 701 N.E.2d 1002 (1998). A writ will only be issued when it can be established that: (1) a lower court or officer is about to exercise judicial or quasi-judicial power; (2) the exercise of that power is clearly not authorized by law; and (3) a denial of the writ would cause an injury for which no adequate legal remedy exists. (Citation omitted.) See State ex rel. Hunter v. Summit Cty. Human Resource Comm., 81 Ohio St.3d 450, 451, 692 N.E.2d 185 (1998). The Supreme Court has consistently stated a writ of prohibition is an extraordinary remedy which should be not granted routinely or easily. Jones at 73.

{¶16} Thus, prohibition will not lie unless it clearly appears the court has no jurisdiction of the cause which it is attempting to adjudicate or the court is about to exceed its jurisdiction. State ex rel. Ellis v. McCabe, 138 Ohio St. 417, 35 N.E.2d 571 (1941), paragraph three of the syllabus. Absent an unambiguous lack of jurisdiction, a court having general jurisdiction of the subject matter of an action has authority to determine its own jurisdiction. A party challenging the court's jurisdiction has an adequate remedy at law by way of an appeal from the court's holding it has jurisdiction. (Citations omitted.) State ex rel. Rootstown Loc. School Dist. Bd. of Edn. v. Portage Cty. Court of Common Pleas, 78 Ohio St.3d 489, 491, 678 N.E.2d 1365 (1997); State ex rel. Bradford v. Trumbull Cty. Court, 64 Ohio St.3d 502, 504, 1992-Ohio-132, 597 N.E.2d 116.

{¶17} Further, "[t]he writ will not issue to prevent an erroneous judgment, or to serve the purpose of appeal, or to correct mistakes of the lower court in deciding questions within its jurisdiction." (Citations omitted.) State ex rel. Sparto v. Juvenile Court of Darke Cty., 153 Ohio St. 64, 65, 90 N.E.2d 598 (1950).

B. Civ.R. 12(B)(6) standard

{¶18} In the present matter, we find dismissal appropriate under Civ.R. 12(B)(6). "When considering a motion to dismiss for failure to state a claim upon which relief can be granted, the court must presume all factual allegations contained in the complaint to be true and must make all reasonable inferences in favor of the nonmoving party." Perez v. Cleveland, 66 Ohio St.3d 397, 399, 613 N.E.2d 199 (19...