[Cite as State ex rel. Small World Early Learning Ctr. v. Ohio Dept. of Job & Family Servs., 2019-Ohio-4329.]


                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

State ex rel.                                          :
Small World Early Learning Center,
                                                       :
                 Relator,
                                                       :
v.                                                                               No. 18AP-532
                                                       :
Ohio Department of                                                         (REGULAR CALENDAR)
Job and Family Services,                               :

                 Respondent.                           :




                                            D E C I S I O N

                                    Rendered on October 22, 2019


                 On brief: Johnna M. Shia, for relator.

                 On brief: Dave Yost, Attorney General, and Rebecca L.
                 Thomas, for respondent.

                                    IN MANDAMUS
                     ON OBJECTIONS TO THE MAGISTRATE'S DECISION
DORRIAN, J.
        {¶ 1} Relator, Small World Early Learning Center, filed this original action
requesting a writ of mandamus ordering respondent, Ohio Department of Job and Family
Services ("ODJFS"), to vacate its decisions suspending and terminating relator's daycare
provider agreement with ODJFS and denying relator's appeal of the termination decision,
and to promulgate rules providing for appeal to court of a decision terminating a daycare
provider agreement. ODJFS has filed a motion to dismiss relator's complaint for failure to
state a claim upon which relief can be granted.
        {¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of Appeals,
this matter was referred to a magistrate who issued a decision, including findings of fact
No. 18AP-532                                                                                   2


and conclusions of law, which is appended hereto. The magistrate recommends this court
grant the motion to dismiss.
       {¶ 3} Relator has filed objections to the magistrate's decision asserting the
magistrate's findings of fact are incomplete and the magistrate failed to address all the
claims in relator's complaint.
       {¶ 4} Before considering relator's objections, we begin by addressing relator's
motion to amend its complaint. On March 18, 2019, relator filed a motion for leave to file
an amended mandamus complaint. Under Loc.R. 13(A) of this court, the Ohio Rules of
Civil Procedure apply to original actions filed in this court. Civ.R. 15(A) provides that a party
may amend a pleading once as a matter of course within 28 days of serving it. After that
time, a party may amend a pleading only by written consent of the opposing party or by
leave of court. The rule provides that "[t]he court shall freely give leave when justice so
requires." Civ.R. 15(A).
       {¶ 5} Despite the liberal amendment policy encouraged by Civ.R. 15(A), motions to
amend pleadings may be refused if there is a showing of bad faith, undue delay, or undue
prejudice to the opposing party. Lundeen v. Graff, 10th Dist. No. 15AP-32, 2015-Ohio-
4462, ¶ 25. In this case, relator sought to amend its complaint more than eight months
after the original complaint was filed and nearly three months after the magistrate's
decision was issued. The motion to amend was also filed after relator filed its objections to
the magistrate's decision and respondent filed its response to those objections. Relator did
not attach a copy of the proposed amended complaint to the motion, but the motion
indicated that relator sought to clarify its existing claims and allege two or three new
counts. Under these circumstances, we deny the motion to amend based on undue delay.
Having denied the motion to amend, we will consider relator's objections to the
magistrate's decision.
       {¶ 6} Relator first objects to the magistrate's findings of fact, arguing they are
incomplete. Relator asserts that certain facts contained in ODJFS's decision denying
relator's appeal of the termination decision and in relator's memorandum in response to
ODJFS's motion to dismiss were not considered by the magistrate and included in her
findings of fact. A motion to dismiss under Civ.R. 12(B)(6) for failure to state a claim upon
which relief can be granted is procedural and tests the sufficiency of the complaint.
No. 18AP-532                                                                               3


Washington Mut. Bank v. Beatley, 10th Dist. No. 06AP-1189, 2008-Ohio-1679, ¶ 12. "[A]
trial court may consider only the statements and facts contained in the pleadings and may
not consider or rely on evidence outside the complaint when resolving a Civ.R. 12(B)(6)
motion to dismiss." Id. at ¶ 13. The alleged facts cited by relator in its objections to the
magistrate's decision were not contained in the complaint; therefore, they are beyond the
scope that may be considered by the court in resolving ODJFS's motion to dismiss.
Accordingly, we overrule relator's first objection to the magistrate's decision.
       {¶ 7} Relator also objects to the magistrate's conclusions of law, asserting the
magistrate failed to address all the claims contained in the complaint. "In order for a court
to dismiss a complaint for failure to state a claim upon which relief can be granted, it must
appear beyond doubt from the complaint that the plaintiff can prove no set of facts entitling
him to recovery." O'Brien v. Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242
(1975), syllabus. The court must presume all factual allegations in the complaint are true
and make all reasonable inferences in favor of the non-moving party. Mitchell v. Lawson
Milk Co., 40 Ohio St.3d 190, 192 (1988).
       {¶ 8} The first count in relator's complaint sought a writ of mandamus ordering
ODJFS to promulgate rules permitting a judicial appeal by a provider of publicly funded
child care for termination of a provider agreement. The magistrate recommended this
court grant ODJFS's motion to dismiss because the court could not order ODJFS to
promulgate rules providing an appeal remedy that was not provided for by statute;
therefore, the magistrate concluded, relator failed to state a claim on which relief could be
granted. We agree with the magistrate's assessment that mandamus will not lie to compel
ODJFS to enact rules providing for judicial appeal in these circumstances. See State ex rel.
Ohio Auto & Truck Wrecking Assn., Inc. v. Mainwaring, 175 Ohio St. 497 (1964),
paragraph one of the syllabus ("The authority conferred upon the Registrar of Motor
Vehicles, by Section 4501.02, Revised Code, to adopt and promulgate such forms, rules and
regulations as are necessary to carry out the Ohio Certificate of Title Act is discretionary,
and consequently mandamus will not lie to compel him to issue any particular rule or
regulation."). Thus, to the extent the magistrate's decision recommends granting the
motion to dismiss relator's first count, seeking a writ of mandamus compelling ODJFS to
promulgate rules, we adopt the magistrate's decision as our own.
No. 18AP-532                                                                                 4


       {¶ 9} Relator's complaint was not limited to seeking a writ of mandamus
compelling ODJFS to promulgate rules; however, it also set forth a second count alleging
that ODJFS abused its discretion by terminating the provider agreement. Although
portions of the complaint are unclear, construing it in the light most favorable to relator as
the non-moving party, the complaint appears to seek a writ of mandamus ordering ODJFS
to reverse its decision terminating the provider agreement based on an abuse of discretion.
"When an administrative agency makes a discretionary decision that is not subject to direct
appeal, a writ of mandamus is the sole vehicle to challenge the decision." State ex rel. V&A
Risk Servs. v. Bur. of Workers' Comp., 10th Dist. No. 11AP-742, 2012-Ohio-3583, ¶ 18,
citing Ohio Academy of Nursing Homes v. Ohio Dept. of Job & Family Servs., 114 Ohio
St.3d 14, 2007-Ohio-2620, ¶ 23. The magistrate's decision failed to address whether the
second count of relator's complaint should be dismissed for failure to state a claim upon
which relief could be granted. Based on our review of the complaint, construing all facts
contained therein as true and drawing all reasonable inferences in favor of relator, we
cannot find beyond doubt that relator can prove no set of facts entitling it to recovery.
Therefore, we overrule in part and sustain in part relator's second objection to the
magistrate's decision.
       {¶ 10} Upon review of the magistrate's decision, an independent review of the
record, and due consideration of relator's objections, we find the magistrate has properly
determined the pertinent facts and applied the appropriate law. We therefore overrule
relator's first objection to the magistrate's decision. We overrule in part and sustain in part
relator's second objection to the magistrate's decision. We adopt the magistrate's decision
as our own, including the findings of fact and conclusions of law contained therein, to the
extent it recommends the motion to dismiss be granted with respect to the first count of
relator's complaint. We return this matter to the magistrate for further proceedings on the
second count of relator's complaint.
                                        Objections sustained in part and overruled in part;
                                                        motion to dismiss granted in part;
                                   action remanded to magistrate for further proceedings.


                         BROWN and LUPER SCHUSTER, JJ., concur.
No. 18AP-532                                                                          5




                                      APPENDIX

                         IN THE COURT OF APPEALS OF OHIO

                            TENTH APPELLATE DISTRICT

The State ex rel.,                           :
Small World Early Learning Center,
                                             :
             Relator,
                                             :
v.                                                               No. 18AP-532
                                             :
Ohio Department of                                          (REGULAR CALENDAR)
Job and Family Services,                     :

             Respondent.                     :



                           MAGISTRATE'S DECISION

                            Rendered on December 21, 2018



             Johnna M. Shia, for relator.

             Michael DeWine, Attorney General, and Rebecca L. Thomas,
             for respondent.


                                  IN MANDAMUS
                        ON RESPONDENT'S MOTION TO DISMISS

      {¶ 11} Relator, Small World Early Learning Center, has filed this original action
requesting this court ordering respondent, Ohio Department of Job and Family Services
("ODJFS"), to issue a writ of mandamus to "promulgate rules pursuant to R.C. 5104.38 and
R.C. 5101.46, to permit an appeal process for providers of publicly funded child care
specifically concerning the termination of the provider agreement."
No. 18AP-532                                                                               6




Findings of Fact:
       {¶ 12} 1. Relator is a licensed child care provider that had a provider agreement with
ODJFS to provide publicly funded daycare.
       {¶ 13} 2. After receiving allegations that relator was improperly in possession of
Ohio Electric Child Care ("ECC") swipe cards and that relator's staff was using those cards
to check children into the center when they were not actually in attendance, ODJFS began
an investigation.
       {¶ 14} 3. At the conclusion of its investigation, ODJFS substantiated the allegations
and determined that relator had been overpaid $442,963.67.
       {¶ 15} 4. On April 15, 2016, ODJFS provided relator with a copy of its investigative
report which recommended suspension and termination of the provider agreement and
indicated the overpayment would be collected.
       {¶ 16} 5.    On April 20, 2016, relator filed an appeal of the suspension and
termination, and sought reconsideration by ODJFS of the overpayment calculation.
       {¶ 17} 6. On November 16, 2016, ODJFS notified relator that its appeal of the
suspension and termination, as well as its reconsideration of the overpayment calculation,
were both denied. The notice further informed relator: "This appeal decision is final and
not subject to further review by the department."
       {¶ 18} 7. On November 22, 2016, relator filed a notice of appeal in the Montgomery
Court of Common Pleas pursuant to R.C. 119.12 and 5101.35.
       {¶ 19} 8. On December 19, 2016, ODJFS moved to dismiss the appeal for lack of
jurisdiction pursuant to Civ.R. 12(B)(1) arguing the decision on appeal were not
adjudications by an agency for purposes of R.C. Chapter 119 and that R.C. 5101.35 did not
provide statutory authority for an appeal of the decisions.
       {¶ 20} 9. On January 26, 2017, the trial court granted ODJFS' motion to dismiss
specifically finding that relator failed to provide any authority to support a determination
that it had the right to appeal and, as such, the trial court lacked jurisdiction.
       {¶ 21} 10. Relator appealed that decision to the Second District Court of Appeals in
Small World Early Childhood Ctr. v. Ohio Dept. of Job and Family Servs., 2nd Dist. No.
27448, 2017-Ohio-8336, which rendered a very well thought out recitation of the applicable
No. 18AP-532                                                                                7


law, and upheld the determination of the common pleas court to dismiss the appeal.
Specifically, the court concluded:
               [N]o provision in R.C. Chapter 5104 or administrative rule
               related to the publicly funded child care authorizes an appeal
               to the court of common pleas from an ODJFS decision
               suspending or terminating a contract entered pursuant to R.C.
               5104.32 or a decision regarding an identified overpayment.

Id. at ¶ 22.

       {¶ 22} 11. On July 3, 2018, relator filed the instant mandamus action asking this
court to order ODJFS to promulgate rules which would specifically provide a right to appeal
to common pleas court where relator and other parties similarly situated would be able to
present evidence and receive an independent review on appeal.
       {¶ 23} 12. On July 16, 2018, respondent filed a motion to dismiss on grounds this
court cannot order ODJFS to promulgate such rules.
       {¶ 24} 13. On August 14, 2018, relator filed a memorandum in response to the
motion to dismiss acknowledging there are no provisions in R.C. Chapter 5104 or the Ohio
Administrative Rule which authorize judicial review from this determination but asserts
ODJFS is clearly mandated to do so.
       {¶ 25} 14. On August 27, 2018, respondent filed a reply.
       {¶ 26} 15. The matter is currently before the magistrate on respondents' motions to
dismiss.
Conclusions of Law:
       {¶ 27} For the reasons that follow, it is this magistrate's decision that this court
should grant respondents' motions, and dismiss this mandamus action.
       {¶ 28} The Supreme Court of Ohio has set forth three requirements which must be
met in establishing a right to a writ of mandamus: (1) that relator has a clear legal right to
the relief prayed for; (2) that respondent is under a clear legal duty to perform the act
requested; and (3) that relator has no plain and adequate remedy in the ordinary course of
the law. State ex rel. Berger v. McMonagle, 6 Ohio St.3d 28 (1983).
       {¶ 29} Relator asks this court to order ODJFS to promulgate specific rules which
would allow for appeals to common pleas court where new evidence can be admitted and
the determination of ODJFS to terminate a provider agreement can be independently
No. 18AP-532                                                                       8


reviewed. A review of the Second District Court of Appeals decision cited previously,
provides a thorough and well-reasoned analysis of both R.C. Chapter 5104 and
R.C. 5101.35. Specifically, that decision provides:
              We begin with a review of the relevant portions of R.C.
              Chapter 5104, the chapter under which Small World
              contracted with ODJFS to receive public funds for child
              daycare. (Pursuant to R.C. 5101.30, ODJFS was designated as
              the state agency responsible for administration and
              coordination of federal and state funding for publicly funded
              child care in Ohio.)

              Certain provisions governing publicly funded child care
              required the creation of a process for applying for publicly
              funded child care, as well as procedures for determining
              whether the applicant is eligible to receive publicly funded
              child care. See R.C. 5104.33 and R.C. 5104.34. R.C.
              5104.34(A)(1) expressly provides that "[a]n applicant
              aggrieved by a decision or delay in making an eligibility
              determination may appeal the decision or delay to the
              department of job and family services in accordance with
              section 5101.35 of the Revised Code. The due process rights of
              applicants shall be protected."

              R.C. 5104.31 specifies what entities may provide publicly
              funded child care, and R.C. 5104.32(A) requires that "all
              purchases of publicly funded child care shall be made under a
              contract entered into by a licensed child day-care center * * *
              and the department of job and family services."
              R.C. 5104.32(B) sets forth specific terms that are required to
              be included in each contract for publicly funded child care.
              R.C. 5104.32(A) further provides, in part:

              To the extent permitted by federal law and notwithstanding
              any other provision of the Revised Code that regulates state
              contracts or contracts involving the expenditure of state or
              federal funds, all contracts for publicly funded child care shall
              be entered into in accordance with the provisions of this
              chapter and are exempt from any other provision of the
              Revised Code that regulates state contracts or contracts
              involving the expenditure of state or federal funds.

              Small World was a licensed child daycare provider that
              contracted with ODJFS to provide publicly funded child care,
              pursuant to R.C. 5104.32.
No. 18AP-532                                                                   9


           Finally, R.C. 5104.37 provides that ODJFS may withhold any
           money due and may recover any money erroneously paid to
           an eligible provider of publicly funded child care if evidence
           exists that the provider did not fully comply with the statutory
           requirements or any rules promulgated under the statute.
           This statutory section reads, in part:


           (D) Subject to the notice and appeal provisions of divisions
           (G) and (H) of this section, the department may suspend a
           contract entered into under section 5104.32 of the Revised
           Code with an eligible provider if the department has initiated
           an investigation of the provider for either of the following
           reasons:

           (1) The department has evidence that the eligible provider
           received an improper child care payment as a result of the
           provider's intentional act.

           (2) The department receives notice and a copy of an
           indictment, information, or complaint charging the eligible
           provider or the owner or operator of the provider with
           committing [certain offenses].

           (E)(1) Except as provided in division (E)(2) of this section, the
           suspension of a contract under division (D) of this section
           shall continue until the department completes its
           investigation * * *.

           (2) If the department initiates the termination of a contract
           that has been suspended pursuant to division (D) of this
           section, the suspension shall continue until the termination
           process is completed.

           (F) An eligible provider shall not provide publicly funded child
           care while the provider's contract is under suspension
           pursuant to division (D) of this section. * * *

           (G) Before suspending an eligible provider's contract
           pursuant to division (D) of this section, the department shall
           notify the eligible provider. * * *

           (H) An eligible provider may file an appeal with the
           department regarding any proposal by the department to
           suspend the provider's contract pursuant to division (D) of
           this section. The appeal must be received by the department
           not later than fifteen days after the date the provider receives
No. 18AP-532                                                                 10


           the notification described in division (G) of this section. The
           department shall review the evidence and issue a decision
           not later than thirty days after receiving the appeal. The
           department shall not suspend a contract pursuant to division
           (D) of this section until the time for filing the appeal has
           passed or, if the provider files a timely appeal, the
           department has issued a decision on the appeal.

           (Emphasis added.) R.C. 5104.37(D)-(H). Nothing in
           R.C. 5104.37 provides for an appeal to the court of common
           pleas of a suspension or termination of an eligible provider's
           contract or of an order for repayment of any money
           erroneously paid to an eligible provider.

           R.C. 5104.38 states that the director of ODJFS shall adopt
           rules, in accordance with R.C. Chapter 119, governing
           financial and administrative requirements for publicly funded
           child care. The statute enumerates 13 areas which were to be
           addressed by rule, none of which related to appeal procedures
           for eligible providers whose contracts were suspended or
           terminated or who were found to have wrongfully received
           payments. R.C. 5104.38(N) allowed for "[a]ny other rules
           necessary to carry out sections 5104.30 to 5104.43 of the
           Revised Code."

           The rules for publicly funded child care are located in Ohio
           Adm.Code Ch. 5101:2-16. Ohio Adm.Code 5101:2-16-44 states
           that "[t]he provider agreement as entered into with ODJFS
           may be suspended and/or terminated if ODJFS determines
           misuse of publicly funded child care or Ohio ECC," and that
           "[t]he provider agreement as entered into with ODJFS, [sic]
           may be terminated in accordance with the terms contained in
           the agreement." Id. at (N), (O). However, this administrative
           rule does not provide any appeal rights.

           Ohio Adm.Code 5101:2-16-71 relates to improper payments to
           providers or misuse of publicly funded child care. The rule
           addresses what is a "provider improper child care payment,"
           what is misuse of publicly funded child care or Ohio ECC by a
           provider, what are the repayment procedures for an improper
           payment or an overpayment due to misuse of Ohio ECC, how
           a provider can request a review of the identified overpayment,
           and what is provider fraud. With respect to the review
           provision, Ohio Adm.Code 5101:2-16-71(D) states:

           (D) Can a child care provider request a review of an identified
           overpayment?
No. 18AP-532                                                                11



           (1) A child care provider may request in writing to ODJFS that
           a reconsideration review be conducted for any identified
           overpayment that is subject to recoupment.

           (2) The written request must be received by ODJFS no later
           than fifteen days after the date the provider receives the
           overpayment notice.

           Finally, Ohio Adm.Code 5101:2-16-72 addresses "program
           integrity reviews" of the publicly funded child care program,
           which include reviews, audits, investigations, and other
           activities to ensure that the program is limited to eligible
           participants and that "payments to providers are for actual
           services provided and conform to program rules." The rule
           states, in part:

           (F) What happens if ODJFS determines misuse of publicly
           funded child care or Ohio electronic child care (Ohio ECC)
           * * *?

           ODJFS may do any of the following:

           (1) Suspend the provider agreement entered into with ODJFS
           pursuant to rule 5101:2-16-44 of the Administrative Code and
           in accordance with section 5104.37 of the Revised Code.

           (2) Terminate the provider agreement entered into with
           ODJFS pursuant to rule 5101:2-16-44 of the Administrative
           Code.

           Ohio Adm.Code 5101:2-16-72 does not address rights to
           appeal the ODJFS action.

           In summary, no provision in R.C. Chapter 5104 or
           administrative rule related to the publicly funded child care
           authorizes an appeal to the court of common pleas from an
           ODJFS decision suspending or terminating a contract entered
           pursuant to R.C. 5104.32 or a decision regarding an identified
           overpayment.

           B. R.C. 119.12

           Small World sought judicial review of ODJFS's decision under
           R.C. 119.12. HN12 R.C. Chapter 119, the Ohio Administrative
           Procedure Act, focuses on two distinct sets of procedures: (1)
           the procedures governing administrative rulemaking (R.C.
No. 18AP-532                                                                   12


           119.02 to 119.04), and (2) the procedures governing
           administrative decisions by agencies (R.C. 119.06 to 119.13).
           Crawford-Cole v. Lucas Cty. Dept. of Job & Family Servs.,
           121 Ohio St. 3d 560, 2009-Ohio-1355, 906 N.E.2d 409, ¶ 28.
           "[T]he second part of the chapter, R.C. 119.06 to 119.13, * * *
           concerns agency adjudications and the procedures for notice,
           hearing, and appeal of those decisions." Id. at ¶ 29.

           R.C. 119.12 specifies who may pursue an administrative
           appeal in the common pleas court. Specifically,
           R.C. 119.12(A)(1) states:

           Except as provided in division (A)(2) or (3) of this section, any
           party adversely affected by any order of an agency issued
           pursuant to an adjudication denying an applicant admission
           to an examination, or denying the issuance or renewal of a
           license or registration of a licensee, or revoking or
           suspending a license, or allowing the payment of a forfeiture
           under section 4301.252 of the Revised Code may appeal from
           the order of the agency to the court of common pleas of the
           county in which the place of business of the licensee is located
           or the county in which the licensee is a resident.
           (Emphasis added.) Alternatively, R.C. 119.12(B) provides,
           "Any party adversely affected by any order of an agency issued
           pursuant to any other adjudication may appeal to the court of
           common pleas of Franklin county * * *." (Emphasis added.)

           R.C. 119.01 provides definitions for relevant terms. The term
           "agency" is defined as:

           "Agency" means, except as limited by this division, [1] any
           official, board, or commission having authority to promulgate
           rules or make adjudications in the civil service commission,
           the division of liquor control, the department of taxation, the
           industrial commission, the bureau of workers' compensation,
           [2] the functions of any administrative or executive officer,
           department, division, bureau, board, or commission of the
           government of the state specifically made subject to sections
           119.01 to 119.13 of the Revised Code, and [3] the licensing
           functions of any administrative or executive officer,
           department, division, bureau, board, or commission of the
           government of the state having the authority or responsibility
           of issuing, suspending, revoking, or canceling licenses.

           R.C. 119.01(A)(1). With respect to the ODJFS, R.C.
           119.01(A)(2) further provides:
No. 18AP-532                                                                   13


           (2) "Agency" also means any official or work unit having
           authority to promulgate rules or make adjudications in the
           department of job and family services, but only with respect
           to both of the following:

           (a) The adoption, amendment, or rescission of rules that
           section 5101.09 of the Revised Code requires be adopted in
           accordance with this chapter;

           (b) The issuance, suspension, revocation, or cancellation of
           licenses.
           R.C. 119.01(A) also exempts certain named agencies from its
           coverage.

           "Adjudication" means "the determination by the highest or
           ultimate authority of an agency of the rights, duties,
           privileges, benefits, or legal relationships of a specified
           person, but does not include the issuance of a license in
           response to an application with respect to which no question
           is raised, nor other acts of a ministerial nature."
           R.C. 119.01(D). "License" is defined as "any license, permit,
           certificate, commission, or charter issued by any agency."
           R.C. 119.01(B).

            Small World argues that it was aggrieved by a decision of
           ODJFS and that it has a right to appeal that decision pursuant
           to R.C. 119.12. Small World complains that ODJFS should
           have promulgated rules providing for a state hearing and
           judicial review. Small World's arguments are unavailing.

           R.C. 119.12 does not provide for judicial review of all decisions
           of all state agencies. See, e.g., Baltimore Ravens, Inc. v. Self-
           Insuring Emp. Evaluation Bd., 94 Ohio St. 3d 449, 452, 2002
           Ohio 1362, 764 N.E.2d 418 (2002); Plumbers & Steamfitters
           Joint Apprenticeship Commt. v. Ohio Civil Rights Comm., 66
           Ohio St.2d 192, 194, 421 N.E.2d 128 (1981). ODJFS
           constitutes an "agency" for purposes of R.C. 119.01(A) only if
           "it is described by one or more of the three branches of the
           definition of 'agency' and not otherwise excluded." Id. Again,
           those branches consist of (1) the agencies enumerated in the
           statute, (2) "functions * * * specifically made subject to R.C.
           119.01 to R.C. 119.13," and (3) agencies with the authority to
           issue, suspend, revoke or cancel licenses.

           Here, ODJFS is not one of the agencies specifically identified
           in R.C. 119.01(A)(1), and this matter does not concern
           licenses. R.C. 5104.38 grants rulemaking power to ODJFS
No. 18AP-532                                                                  14


           regarding financial and administrative requirements for
           publicly funded child care and required the rules to be
           adopted in accordance with R.C. Chapter 119. However, R.C.
           Chapter 5104 did not make decisions relating to contracts
           with publicly funded child care providers subject to R.C.
           119.12 (the right to appeal adjudications). Accordingly,
           ODJFS does not fall within the definition of an agency, as set
           forth in R.C. 119.12(A)(1).

           R.C. 119.01(A)(2) specifically addresses ODJFS. The decisions
           that Small World attempted to appeal to the trial court did not
           concern "the adoption, amendment, or rescission of rules"
           and "the issuance, suspension, revocation, or cancellation of
           licenses." Consequently, ODJFS also is not an agency within
           the meaning of R.C. 119.01(A)(2).

           Because the two decisions on appeal are not decisions of an
           "agency," as defined by R.C. 119.01(A), Small World had no
           right to appeal the two decisions to the court of common pleas
           pursuant to R.C. 119.12.

           Small World further asserts that it can appeal the two ODJFS
           decisions, pursuant to R.C. 119.12, because R.C. 5101.46
           (governing of the administration of Title XX social service
           funding through grants to ODJFS) grants ODJFS rule-making
           authority, in accordance with R.C. Chapter 119, regarding
           publicly funded child care. R.C. 5101.46 states, in part: "Rules
           governing eligibility for services, program participation, and
           other matters pertaining to applicants and participants shall
           be adopted in accordance with Chapter 119. of the Revised
           Code." (We note that R.C. 5104.38 also gave rulemaking
           authority to the director of ODJFS regarding publicly funded
           child care.)

           The Supreme Court of Ohio has noted that many statutes
           incorporate R.C. Chapter 119 for limited purposes that did not
           include judicial review. E.g., Baltimore Ravens at 456-457
           (discussing R.C. 4123.352(C), R.C. 4112.05, and other statutes
           as examples where R.C. Chapter 119 was incorporated for
           rulemaking, but did not provide a right of judicial review). We
           find nothing in R.C. Chapter 5101 and R.C. Chapter 5104 to
           indicate that a provider of publicly funded child care was
           granted a right of judicial review, pursuant to R.C. 119.12.

           To the extent that Small World argues that ODJFS's decision
           to terminate the provider's contract is invalid, because ODJFS
No. 18AP-532                                                                   15


           failed to promulgate additional rules involving Title XX
           funding, that issue is not properly before us.

           C. R.C. 5101.35

           Small World further claims that it was entitled to appeal to the
           court of common pleas pursuant to R.C. 5101.35, the general
           appeal provision for ODJFS. Under R.C. 5101.35(B), "an
           appellant who appeals under federal or state law a decision or
           order of an agency administering a family services program
           shall, at the appellant's request, be granted a state hearing by
           the department of job and family services." R.C. 5101.35(C)
           further provides:

           Except as provided by division (G) of this section, an appellant
           who disagrees with a state hearing decision may make an
           administrative appeal to the director of job and family services
           in accordance with rules adopted under this section. This
           administrative appeal does not require a hearing, but the
           director or the director's designee shall review the state
           hearing decision and previous administrative action and may
           affirm, modify, remand, or reverse the state hearing decision.
           An administrative appeal decision is the final decision of the
           department and, except as provided in section 5160.31 of the
           Revised Code, is binding upon the department and agency,
           unless it is reversed or modified on appeal to the court of
           common pleas.

           R.C. 5101.35(E) expressly provides for judicial review. It
           states, in part: "An appellant who disagrees with an
           administrative appeal decision of the director of job and
           family services or the director's designee issued under
           division (C) of this section may appeal from the decision to the
           court of common pleas pursuant to section 119.12 of the
           Revised Code."

           Small World asserts that it is an "appellant" of a decision of an
           "agency" administering a "family services program." There is
           no question that the provision of publicly funded child care is
           a "family services program." R.C. 5101.35(A)(3)(a) includes
           "[p]rograms that provide assistance under Chapter 5104. or
           5115. of the Revised Code" in the definition of a "family
           services program." In addition, ODJFS is an "agency" under
           R.C. 5101.35. R.C. 5101.35(A)(1)(a) defines an "agency" as any
           of several entities, including ODJFS, that administer a family
           services program.
No. 18AP-532                                                                          16


              The parties dispute whether Small World constitutes an
              "appellant." The term "appellant" is defined as "an applicant,
              participant, former participant, recipient, or former recipient
              of a family services program who is entitled by federal or state
              law to a hearing regarding a decision or order of the agency
              that administers the program." R.C. 5101.35(A)(2).

              Small World asserts that it is an "appellant" under R.C.
              5101.35(A)(2), because it was a "participant" in the publicly
              funded child care program. ODJFS responds that a child care
              provider receiving public funds pursuant to a contract with
              ODJFS is not a "participant" in the program. ODJFS further
              argues that R.C. 5101.35(E) provides for an appeal from an
              "administrative appeal decision" issued in an appeal from a
              "state hearing decision," and that since Small World was not
              entitled to such a hearing, R.C. 5101.35(E) is inapplicable.

              We need not address whether Small World was a "participant"
              of a family services program, because we find the more critical
              aspect of the definition of "appellant" to be whether Small
              World was "entitled by federal or state law to a hearing
              regarding a decision or order of the agency that administers
              the program." As discussed above, nothing in the provisions
              governing publicly funded child care or R.C. Chapter 119
              entitled Small World to a hearing. Consequently, in the
              absence of an entitlement to a hearing, Small World cannot
              satisfy the definition of an "appellant" under R.C. 5101.35, nor
              did Small World received the kind of decision that is subject
              to appeal under this statute.

              Small World's assignment of error is overruled.

(Emphasis sic.) Id. at ¶ 14-41.
       {¶ 30} As explained by the Second District Court of Appeals, the statutes involved
do not provide for an appeal to the common pleas court. As such, this court cannot order
ODJFS to promulgate rules that will provide a remedy which does not exist in the statute.
Because relator's complaint fails to state a claim on which relief can be granted, the
magistrate finds that this court should grant the motions of respondents, and dismiss
relator's appeal.


                                             /S/ MAGISTRATE
                                             STEPHANIE BISCA
No. 18AP-532                                                                    17




                           NOTICE TO THE PARTIES

           Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign as
           error on appeal the court's adoption of any factual finding or
           legal conclusion, whether or not specifically designated as a
           finding of fact or conclusion of law under Civ.R. 53(D)(3)(a)(ii),
           unless the party timely and specifically objects to that factual
           finding or legal conclusion as required by Civ.R. 53(D)(3)(b).
