In re K.D. , 2021 Ohio 1538 ( 2021 )

[Cite as In re K.D., 2021-Ohio-1538.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
CLERMONT COUNTY
IN RE: :
K.D. : CASE NO. CA2020-11-063
: OPINION
5/3/2021
:
:
:
APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
JUVENILE DIVISION
Case No. 2020 JA 56176
Mark J. Tekulve, Clermont County Prosecutor, Nick Horton, 76 South Riverside Drive, 2nd
Floor, Batavia, Ohio 45103, for appellant
W. Stephen Haynes, Clermont County Public Defender, Robert F. Benintendi, 302 East
Main Street, Batavia, Ohio 45103, for appellee, child
Andrew Helmes, 101 N. Riverside Drive, Batavia, Ohio 45103, for appellee, mother
KL Hurd Law, LLC, Kenyatta Hurd, 11427 Reed Hartman Highway, Cincinnati, Ohio 45241,
guardian ad litem
S. POWELL, J.
{¶ 1} Appellant, Clermont County Department of Job and Family Services
("CCDJFS"), appeals the decision of the Clermont County Court of Common Pleas, Juvenile
Clermont CA2020-11-063
Division, issuing a dispositional decision placing appellee, K.D., into CCDJFS' temporary
custody without first giving CCDJFS notice of the juvenile court's intended dispositional
order as required by R.C. 2151.3510. For the reasons outlined below, we reverse the
juvenile court's decision and remand this matter to the juvenile court for further proceedings.
{¶ 2} On September 28, 2020, the juvenile court issued an adjudicatory decision
adjudicating K.D. an unruly child as that term is defined by R.C. 2151.022(A). Immediately
thereafter, the juvenile court issued a dispositional decision that placed K.D. on a four-year
community control term and released K.D. into the temporary custody of CCDJFS. The
juvenile court, however, released K.D. into CCDJFS' temporary custody without first giving
CCDJFS notice of the juvenile court's intended dispositional order as required by R.C.
2151.3510.
{¶ 3} CCDJFS now appeals the juvenile court's decision placing K.D. into its
temporary custody without first giving CCDJFS notice as required by R.C. 2151.3510,
raising the following single assignment of error for review.
{¶ 4} THE JUVENILE COURT ERRED BY GRANTING THE AGENCY
TEMPORARY CUSTODY OF K.D. WITHOUT FIRST GIVING THE AGENCY NOTICE.
{¶ 5} CCDJFS argues the juvenile court erred by granting it temporary custody of
K.D. without first giving it notice of the juvenile court's intended dispositional order as
required by R.C. 2151.3510. We agree.
{¶ 6} Pursuant to R.C. 2151.3510, before a juvenile court issues a dispositional
decision under either R.C. 2151.354(A)(1) or 2152.19 that commits an unruly or delinquent
child to the custody of a public children services agency, such as the case here, "[the
juvenile court] shall give the agency notice in the manner prescribed by the Juvenile Rules
of the intended dispositional order." (Emphasis added.). As noted by the Ohio Supreme
Court, the word "shall" means "must." Wilson v. Lawrence, 150 Ohio St.3d 368, 2017-Ohio-
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Clermont CA2020-11-063
1410, ¶ 13, citing Application of Braden, 105 Ohio App. 285, 286 (1st Dist.1957); and
Dorrian v. Scioto Conservancy Dist., 27 Ohio St.2d 102, 107 (1971), citing Cleveland Ry.
Co. v. Brescia, 100 Ohio St. 267 (1919) ("[t]he word 'shall' is usually interpreted to make the
provision in which it is contained mandatory, * * * especially if frequently repeated"). "And
'[t]he word "must" is mandatory. It creates an obligation. It means obliged, required, and
imposes a physical or moral necessity.'" Id., quoting Willis v. Seeley, Scioto C.P., 1946
Ohio Misc. LEXIS 240 (June 8, 1946). Therefore, given the above, the "use of the term
'shall' in a statute connotes a mandatory obligation unless other language evidences a clear
and unequivocal intent to the contrary." Id., citing State ex rel. Cincinnati Enquirer v. Lyons,
140 Ohio St.3d 7, 2014-Ohio-2354, ¶ 28.
{¶ 7} Based on the plain language found in R.C. 2151.3510, we can find no
evidence to indicate the use of the word "shall" within that statute was intended to mean
anything other than "must," thereby placing a mandatory obligation on the juvenile court to
act in accordance with that statute. To that end, based on the facts of this case, before the
juvenile court could award temporary custody of K.D. to CCDJFS, the juvenile court was
required by R.C. 2151.3510 to notify CCDJFS of its intended dispositional order. See In re
A.B., 191 Ohio App.3d 80, 2010-Ohio-5413, ¶ 12 (8th Dist.) ("[p]ursuant to R.C. 2151.3510,
before a juvenile court makes a disposition rendering temporary or permanent custody to a
public children's services agency, it must first notify the agency of the hearing"). The
juvenile court did not provide such notice to CCDJFS, a fact that K.D. readily admits as part
of his brief filed with this court,1 as well as in an "expedited" motion K.D. filed with the
1. In his brief, K.D. states that "the record of this case does seem to suggest that the juvenile court did not
provide [CCDJFS] with the notice of the intended dispositional order prior to issuing the order."
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Clermont CA2020-11-063
juvenile court on October 1, 2020.2 This was error. See, e.g., In re Roberson, 5th Dist.
Stark No. 2003CA00393, 2004-Ohio-4996, ¶ 17-20 (juvenile court erred by granting
temporary custody of a delinquent child to a children services agency where the juvenile
court "clearly did not comply with R.C. 2151.3510 since it failed to give [the agency] notice
prior to issuing an order of disposition"). Therefore, finding merit to CCDJFS' argument
raised herein, CCDJFS' single assignment of error is sustained, the juvenile court's decision
is reversed, and this matter is remanded to the juvenile court for further proceedings.
{¶ 8} Judgment reversed and remanded.
M. POWELL, P.J., and HENDRICKSON, J., concur.
2. Although arguing the exact opposite now on appeal, we note that in an "expedited" motion to remand
custody to his mother that K.D. filed with the juvenile court on October 1, 2020, K.D. argued that "notice is
required to be provided to the Children Services Agency" before he could be placed in CCDJFS' temporary
custody, but that "[n]o notice was provided" to CCDJFS.
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