In re K.M. (Slip Opinion) , 2020 Ohio 995 ( 2020 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as In
re K.M., Slip Opinion No. 2020-Ohio-995.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2020-OHIO-995
IN RE K.M. ET AL.
IN RE D.T.
IN RE M.T.
IN RE R.T.
IN RE J.T.
IN RE S.K.
IN RE T.K.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as In re K.M., Slip Opinion No. 2020-Ohio-995.]
Juvenile procedure—R.C. 2151.35(B)(1) mandates the dismissal of a case without
prejudice if a juvenile court fails to conduct a dispositional hearing within
90 days of the filing of a complaint alleging that a child is abused,
neglected, or dependent.
(Nos. 2018-1331, 2018-1375, 2018-1376, 2018-1377, 2018-1379, 2018-1380, and
2018-1381—Submitted December 11, 2019—Decided March 19, 2020.)
SUPREME COURT OF OHIO
APPEALS from the Court of Appeals for Richland County, Nos. 18CA07 and
18CA08, 2018-Ohio-3144; 18-CA-33, 2018-Ohio-3252; 18-CA-32, 2018-Ohio-
3251; 18-CA-34, 2018-Ohio-3330; 18-CA-35, 2018-Ohio-3331; 18-CA-36, 2018-
Ohio-3332; and 18-CA-37, 2018-Ohio-3333.
__________________
FRENCH, J.
{¶ 1} These discretionary appeals ask whether R.C. 2151.35(B)(1)
mandates the dismissal of a case if a juvenile court fails to conduct a dispositional
hearing within 90 days of the filing of a complaint alleging that a child is abused,
neglected or dependent. We answer that question in the affirmative, reverse the
judgments of the Fifth District Court of Appeals, and remand these cases to the
juvenile court to enter orders of dismissal without prejudice.
STATUTORY BACKGROUND
{¶ 2} The General Assembly has conferred authority on the juvenile courts
to hear complaints alleging that a child is abused, neglected or dependent. R.C.
2151.23(A)(1). A juvenile court must conduct an adjudicatory hearing no later than
30 days after a complaint is filed unless the time is extended “for good cause
shown” up to a maximum of 60 days. R.C. 2151.28(A)(2); Juv.R. 29(A). If the
juvenile court finds clear and convincing evidence that the child is abused,
neglected or dependent, R.C. 2151.35(A) requires it to then hold a dispositional
hearing to determine the child’s placement in protective supervision or temporary
custody, to decide any motions for legal custody or permanent custody or to
exercise any of the other options in R.C. 2151.353(A). The court may hold the
dispositional hearing immediately after the adjudicatory hearing or it may conduct
a separate hearing no more than 30 days after the adjudicatory hearing; this time
limit may be extended “to enable a party to obtain or consult counsel.” R.C.
2151.35(B)(1).
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{¶ 3} R.C. 2151.35(B)(1) also states that “[t]he dispositional hearing shall
not be held more than ninety days after the date on which the complaint in the case
was filed.” If the dispositional hearing is not held within 90 days of the filing of
the complaint, “the court, on its own motion or the motion of any party or the
guardian ad litem of the child, shall dismiss the complaint without prejudice.” R.C.
2151.35(B)(1).
FACTS AND PROCEDURAL BACKGROUND
The first appeal: In re K.M. et al.
{¶ 4} The first appeal before us involves two minor children, both identified
by the initials K.M. Appellant, R.H., is the mother of both children. On April 19,
2017, appellee, Richland County Children Services Board (“children services”),
filed two separate complaints alleging that both children were abused, dependent,
and/or neglected.
{¶ 5} On June 30, 2017, a juvenile-court magistrate conducted an
adjudicatory hearing addressing the allegations of the complaints. At the
conclusion of the hearing, the magistrate found clear and convincing evidence that
both children were dependent, as defined in R.C. 2151.04(C).
{¶ 6} After making the findings of dependency, the magistrate asked the
parties if they wished to hold the dispositional hearing on a later date. R.H.’s
attorney answered in the negative and noted on the record that R.H. was ready to
proceed at that time with the dispositional hearing in order to avoid delay.
Nevertheless, the magistrate continued the matter in order to gather more
information. On July 14, 2017, the court journalized entries setting the
dispositional hearing for August 4, 2017—the 107th day after the filing of the
complaints.
{¶ 7} At the start of the August 4 dispositional hearing, R.H.’s attorney
made an oral motion to dismiss based on the court’s failure to conduct a
dispositional hearing within 90 days after the filing of the complaints. The
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magistrate denied the motion. At the conclusion of the hearing, the magistrate
granted temporary custody of both children to their paternal grandmother. The
juvenile court overruled R.H.’s timely objections and adopted the magistrate’s
adjudication and dispositional decisions.
{¶ 8} The Fifth District Court of Appeals affirmed the judgments of the
juvenile court. The court of appeals concluded that R.H.’s motion to dismiss on
the day of the dispositional hearing failed to comply with Juv.R. 22(E), which
requires all prehearing motions, with certain exceptions not applicable here, to be
filed by the later of (1) seven days prior to the hearing or (2) ten days after the
appearance of counsel. The court of appeals also noted that the magistrate had
delayed proceedings in order to gather more information and to give R.H. an
opportunity to cooperate with children services before deciding the disposition of
the children.
The second appeal: In re D.T. et al.
{¶ 9} The second appeal before us involves appellant, B.S., and cases
involving her six minor children: D.T., M.T., R.T., J.T., S.K., and T.K.
{¶ 10} In January 2017, D.T.’s school notified children services that D.T.
came to school with black eyes, bruising on his face, and red striations on his neck.
D.T. was transported to a hospital by ambulance and the other five children were
later brought to the hospital as well. That same day, the police arrested B.S.’s then-
boyfriend for the suspected physical abuse of D.T. Pending further investigation,
B.S. agreed to the temporary placement of some of the children with relatives and
the others with a friend.
{¶ 11} On May 5, 2017, children services filed six separate complaints
alleging the children to be abused and/or dependent. About one week later, B.S.
gathered all six children and took them to Kentucky. On May 18, the juvenile court
issued ex parte orders placing the children in children services’ temporary custody.
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January Term, 2020
On May 20, caseworkers with children services drove from Ohio to Kentucky. B.S.
voluntarily surrendered the children, and they were returned to Ohio.
{¶ 12} The juvenile-court magistrate began the adjudicatory hearing
covering all six cases on July 21, 2017, and held additional sessions of the
adjudicatory hearing on August 31 and October 12, 2017. On August 29 and
October 5, B.S. filed motions to dismiss arguing that R.C. 2151.35(B)(1) required
dismissal because the court had failed to hold its dispositional hearing within 90
days of the filing of the complaints, i.e., by August 3, 2017. The magistrate denied
the motions.
{¶ 13} At the conclusion of the adjudicatory hearing on October 12, the
magistrate found all six children dependent and D.T. and M.T. abused. Rather than
going forward to have the dispositions determined that same day, B.S.’s attorney
requested that the dispositional hearing be set for another day to give B.S. an
opportunity to present witnesses.
{¶ 14} Before the cases proceeded to the dispositional-hearing stage, B.S.
timely filed objections to the magistrate’s adjudication decisions and the denials of
her motions to dismiss. The court overruled these objections on March 16, 2018.
After beginning the dispositional hearing in November 2017 and holding additional
sessions of that hearing in January and March 2018, the magistrate granted
temporary custody of D.T., M.T., R.T., and J.T. to children services and granted
temporary custody of S.K. and T.K. to their paternal grandmother under the
protective supervision of children services. The court entered its final dispositions
adopting the magistrate’s decisions on April 9, 2018—339 days after the filing of
the complaints.
{¶ 15} B.S. appealed the juvenile court’s March 16, 2018 findings of abuse
and dependency and the denials of her motions to dismiss. The Fifth District
affirmed the judgments of the juvenile court in all six cases. In those opinions, the
Fifth District expressly declined to follow its own precedent and concluded that the
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90-day dispositional deadline in R.C. 2151.35(B)(1) is directory and is not a
mandatory or jurisdictional rule requiring dismissal. The court also determined that
the circumstances of the cases did not warrant dismissal, specifically concluding
that no delay caused prejudice to B.S. and noting that B.S. had asked the magistrate
to schedule the dispositional hearing for a future date rather than proceeding to
decide the dispositions at the conclusion of the adjudicatory hearing.
Issue presented
{¶ 16} Both mothers, represented by the same counsel, sought this court’s
discretionary review. We accepted R.H.’s appeal in In re K.M. See 154 Ohio St. 3d
1442, 2018-Ohio-4962, 113 N.E.3d 551. We accepted B.S.’s appeal in In re D.T.
on one of her propositions of law, we also accepted her appeals in the other five
cases involving her children on one proposition of law, and we consolidated those
six cases into one appeal. See 154 Ohio St. 3d 1443, 2018-Ohio-4962, 113 N.E.3d
551-552. Both appeals present the same proposition of law:
Ohio law mandates that a juvenile court dismiss a neglect,
abuse, or dependency case on the motion of any party if the court
does not complete disposition within ninety days of the date of filing
of the complaint.
ANALYSIS
{¶ 17} Ohio’s juvenile courts are statutory entities, and they are able to
exercise only those powers that the General Assembly confers on them. R.C.
Chapter 2151; In re Z.R., 144 Ohio St. 3d 380, 2015-Ohio-3306, 44 N.E.3d 239,
¶ 14. The General Assembly has conferred authority on the juvenile courts to hear
complaints alleging that a child is abused, neglected or dependent. R.C.
2151.23(A)(1). After a juvenile court adjudicates a child as abused, neglected or
dependent, the court must conduct a dispositional hearing in accordance with R.C.
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January Term, 2020
2151.35(B). These appeals focus on the following sentences in R.C.
2151.35(B)(1):
The dispositional hearing shall not be held more than ninety days
after the date on which the complaint in the case was filed.
If the dispositional hearing is not held within the period of
time required by this division, the court, on its own motion or the
motion of any party or the guardian ad litem of the child, shall
dismiss the complaint without prejudice.
Juv.R. 34(A) contains essentially the same language.
{¶ 18} R.H. and B.S. argue that R.C. 2151.35(B)(1) imposes a mandatory
deadline and requires a juvenile court to dismiss a neglect, abuse or dependency
case if it does not hold the dispositional hearing within 90 days of the filing of the
complaint. Children services urges us to adopt the Fifth District’s interpretation
that the 90-day deadline is directory, not mandatory. We agree with R.H. and B.S.
and conclude that the plain language of R.C. 2151.35(B)(1) mandates dismissal of
a complaint without prejudice when the juvenile court fails to meet the 90-day
dispositional deadline.
{¶ 19} We generally construe a statute containing the word “shall” as
mandatory. Dorrian v. Scioto Conservancy Dist., 27 Ohio St. 2d 102, 271 N.E.2d
834 (1971), paragraph one of the syllabus. But that axiom does not resolve the
dispute here. In certain circumstances, even if the statute contains the word “shall,”
we have construed a statutory time limit as directory. In re Davis, 84 Ohio St. 3d
520, 522, 705 N.E.2d 1219 (1999). “ ‘[A] statute which provides a time for the
performance of an official duty will be construed as directory so far as time for
performance is concerned, especially where the statute fixes the time simply for
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convenience or orderly procedure.’ ” Id., quoting State ex rel. Jones v. Farrar, 146
Ohio St. 467, 472, 66 N.E.2d 531 (1946).
{¶ 20} We consider a statutory deadline to be mandatory, however, when
“ ‘the nature of the act to be performed or the phraseology of the statute * * * is
such that the designation of time must be considered a limitation upon the power
of the officer.’ ” Davis at 522, quoting State ex rel. Smith v. Barnell, 109 Ohio St.
246, 255, 142 N.E. 611 (1924).
{¶ 21} We fleshed out the difference between a mandatory and directory
statutory deadline in Davis. In that case, we interpreted R.C. 2151.35(B)(3), which
states that after the conclusion of a juvenile court’s dispositional hearing, “the court
shall enter an appropriate judgment within seven days.” We held that a juvenile
court’s failure to comply with the seven-day deadline in R.C. 2151.35(B)(3) does
not deprive the court of its authority to determine permanent custody.
Notwithstanding the statute’s use of the word “shall,” we concluded that R.C.
2151.35(B)(3) “does not include any expression of intent to restrict the jurisdiction
of the court for untimeliness.” Davis at 522.
{¶ 22} The lack of any statutory language terminating a juvenile court’s
authority also formed the basis of our holding in In re Z.R., 144 Ohio St. 3d 380,
2015-Ohio-3306, 44 N.E.3d 239. We examined the statute governing venue for
dependency complaints and concluded that the absence of any statutory language
requiring dismissal of a complaint if it is filed in the wrong county “indicates that
venue is not a jurisdictional requirement.” Id. at ¶ 23.
{¶ 23} With these principles in mind, we return to R.C. 2151.35(B)(1).
Unlike the statutes we examined in Davis and In re Z.R., R.C. 2151.35(B)(1) does
contain an express limitation on a juvenile court’s authority for failure to comply
with a statutory deadline. If the juvenile court fails to conduct a dispositional
hearing within 90 days of the filing of the complaint, it “shall dismiss the complaint
without prejudice,” either upon a motion filed by one of the parties or the guardian
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ad litem or upon the court’s “own motion.” By requiring dismissal after the
expiration of 90 days, the General Assembly leaves no doubt that it intended to
impose a mandatory deadline.
{¶ 24} If the General Assembly had intended for a juvenile court to proceed
with dispositional determinations beyond the 90-day time limit in R.C.
2151.35(B)(1), it could have added language to that effect. In fact, in other
instances, the legislature has expressly provided that a juvenile court can act beyond
a designated time limit. For example, R.C. 2151.28 requires the court to conduct
an adjudicatory hearing no later than 30 days after the filing of a complaint alleging
neglect, abuse or dependency, “except that, for good cause shown” (emphasis
added), R.C. 2151.28(A)(2), the court may continue the adjudicatory hearing for
ten days to allow a party to obtain counsel, R.C. 2151.28(A)(2)(a), or for up to a
total of 60 days after the complaint is filed to complete service or to obtain any
necessary evaluation, R.C. 2151.28(A)(2)(b). But the General Assembly has also
specified that the court’s failure to hold an adjudicatory hearing within those time
periods “does not affect the ability of the court to issue any order under this chapter
and does not provide any basis for attacking the jurisdiction of the court or the
validity of any order of the court.” R.C. 2151.28(K).
{¶ 25} Similarly, a juvenile court’s failure to conduct a permanent-custody
hearing within 120 days of an agency’s motion “does not affect the authority of the
court to issue any order under this chapter and does not provide any basis for
attacking the jurisdiction of the court or the validity of any order of the court.” R.C.
2151.414(A)(2). In the absence of any such language here that allows the court to
act beyond the 90-day time limit, we must apply the express mandate in R.C.
2151.35(B)(1) requiring dismissal of the complaints.
{¶ 26} To avoid this result, the Fifth District concluded that both mothers
implicitly waived their right to a 90-day disposition. In In re K.M., the court of
appeals suggested that R.H.’s failure to cooperate with children services’
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investigation required a delay in the proceedings for the juvenile court to obtain
more information. In In re D.T. and the other five related cases, after the magistrate
denied B.S.’s motions to dismiss, B.S. requested that the magistrate set the
dispositional hearing for a future date, and the court of appeals construed that
request as a waiver. The statutory language is explicit, however, in requiring
dismissal after the expiration of the 90-day period. In the face of such language,
there can be no implicit waiver of the 90-day limit.
{¶ 27} Next, we address the Fifth District’s conclusion in In re K.M. that
the untimeliness of R.H.’s motion to dismiss, asserted on the day of the
dispositional hearing, warranted denial of the motion. The court invoked Juv.R.
22(E), which requires all prehearing motions to be filed by the later of (1) seven
days prior to the hearing or (2) ten days after the appearance of counsel. But the
Rules of Juvenile Procedure cannot be construed in a way that extends or limits the
statutory authority of the juvenile court. Linger v. Weiss, 57 Ohio St. 2d 97, 100,
386 N.E.2d 1354 (1979); Juv.R. 44. The procedural requirements in Juv.R. 22(E)
cannot supersede the statutory mandate in R.C. 2151.35(B)(1) requiring dismissal
of the complaint.
{¶ 28} Finally, the court of appeals in its opinions and children services in
its briefs point to the adverse consequences that would result from construing the
90-day deadline in R.C. 2151.35(B)(1) as mandatory. The Fifth District opined that
the dismissal of cases before their final disposition would require either that
children be returned to a potentially risky home situation or that a new complaint
be filed to begin the process all over again.
{¶ 29} We acknowledge these valid concerns. But the dismissal rule here
reflects the General Assembly’s weighing of a countervailing interest—the
fundamental right of a parent to raise one’s own children. It is not uncommon that
children and parents are left in legal limbo for months and even years while waiting
for juvenile courts to process their cases. Davis at 528 (Moyer, C.J., dissenting).
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In In re K.M., the magistrate did not hold a dispositional hearing until 107 days
after the filing of the complaints even though R.H.’s attorney expressly stated at
the end of the adjudicatory hearing that R.H. was ready to proceed directly to the
dispositional hearing to avoid delay. In In re D.T. and the cases involving his
siblings, the juvenile-court magistrate did not begin to conduct the dispositional
hearing until 187 days after the filing of the complaints, and the court did not enter
the final dispositions until 339 days after the filing of the complaints.
{¶ 30} To alleviate such delays, the General Assembly crafted a solution
that balances the rights of parents with the interests of protecting children—it
provided for dismissal of a complaint without prejudice, which allows an agency to
refile a new complaint that very same day and marshal its evidence if it still has
concerns about a child’s welfare. We acknowledge the burden that a mandatory
90-day deadline in R.C. 2151.35(B)(1) may impose on the already-strained dockets
of the juvenile courts. But regardless of the policy concerns raised by dismissal of
the complaint, our duty is to apply the statute as written.
CONCLUSION
{¶ 31} We hold that R.C. 2151.35(B)(1) imposes a mandatory deadline
requiring a juvenile court to dismiss a case without prejudice if the court fails to
conduct a dispositional hearing within 90 days of the filing of a complaint alleging
that a child is abused, neglected or dependent. And our holding applies with equal
force to Juv.R. 34(A), which contains language essentially identical to that in R.C.
2151.35(B)(1).
{¶ 32} We therefore reverse the judgments of the Fifth District Court of
Appeals and remand these cases to the juvenile court to enter orders of dismissal
without prejudice.
Judgments reversed
and causes remanded.
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O’CONNOR, C.J., and KENNEDY, FISCHER, DEWINE, DONNELLY, and
STEWART, JJ., concur.
_________________
Darin Avery, for appellants.
Edith A. Gilliland, for appellee.
_________________
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