State ex rel. Benge v. Hunter

[Cite as State ex rel. Benge v. Hunter, 2013-Ohio-4502.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO EX REL. KLARYSA : NO. C-130565
BENGE,
:
Relator,
: O P I N I O N.
vs.
:
TRACIE M. HUNTER, JUDGE,
Hamilton County Court of Common :
Pleas, Juvenile Divison,
Respondent. :
Original Action in Procedendo
Writ of Procedendo is Issued
Date of Judgment Entry: October 11, 2013
Klarysa Benge, Relator,
Firooz T. Namei and James F. Bogen, for Respondent.
OHIO FIRST DISTRICT COURT OF APPEALS
Per Curiam.
{¶1} Relator, Klarysa Benge, attorney guardian ad litem for Z.L., a minor
child, brings this original action in the best interests of the child. She claims
entitlement to a writ of procedendo to compel respondent Judge Tracie M. Hunter to
expeditiously rule on the objection and motion for leave to file out of time filed by the
child’s grandmother to the magistrate’s decision granting permanent custody of the
child to Hamilton County Department of Job and Family Services (“HCJFS”) in
Hamilton County Court of Common Pleas, Juvenile Division, Case No. F10-0131Z.
{¶2} On February 11, 2011, HCJFS moved to modify the temporary order of
custody to an order of permanent custody. On April 2, 2012, the magistrate granted
permanent custody to HCJFS, and issued an amended decision of clarification on
April 11, 2012. Preliminary objections and a motion for leave to file out of time were
filed by the grandmother on May 17, 2012. Thereafter, on September 7, 2012, the
magistrate issued detailed findings of fact regarding the grant of permanent custody.
On October 30, 2012, the grandmother’s objection was dismissed for failure of
petitioner or her counsel to appear. A motion for reconsideration was filed on
November 5, 2012, which was granted on February 5, 2013. Judge Hunter heard oral
arguments on the objection on May 2, 2013 and May 13, 2013. Klarysa Benge states
that Judge Hunter has not yet ruled on the objection or the motion for leave as
required by Juv.R. 40(D)(4)(d).
{¶3} In support of her petition for a writ of procedendo, Klarysa Benge
asserts that she has a clear legal right to a decision on the objection, that Judge
Hunter has a clear legal duty to proceed, and that she has no plain and adequate
remedy in the ordinary course of law. As of this date, Judge Hunter has not
responded to Klarysa Benge’s complaint, nor has she advanced an explanation for
her failure to rule upon the grandmother’s objection and motion for leave.
{¶4} Procedendo is an extraordinary writ, issued by a court of superior
jurisdiction, directing a lower court to proceed to judgment in a case. State ex rel.
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OHIO FIRST DISTRICT COURT OF APPEALS
Sherrills v. Common Pleas, 72 Ohio St.3d 461, 462, 650 N.E.2d 899 (1995). A writ of
procedendo is proper when a trial court has refused to render, or has unnecessarily
delayed rendering, a judgment. State ex rel. Culgan v. Collier, 135 Ohio St.3d 436,
2013-Ohio-1762, 988 N.E.2d 564, ¶ 10. In this case, Klarysa Benge claims that a writ
of procedendo is proper because Judge Hunter has unnecessarily delayed a decision
in this matter.
{¶5} In determining whether Judge Hunter has unnecessarily delayed a
decision in this matter, we are guided by Sup.R. 40(A)(2) and 40(A)(3). Those rules
provide, respectively, that cases submitted to a trial court for decision shall be
decided within 90 days of the case’s submission, and that motions shall be ruled
upon within 120 days of the date of filing. A court that fails to meet these time limits
risks unduly delaying the case and risks an order compelling a decision. See Culgan
at ¶ 11. But numerous factors, such as the complexity of the case, the involvement of
a magistrate, and the need for further discovery, may justify a court, acting within its
proper discretion, to delay issuing a decision or ruling on a motion beyond the time
provided by the rules. Id. at ¶ 12.
{¶6} Klarysa Benge argues that Judge Hunter has unduly delayed ruling on
the objection, and that the child has been severely prejudiced and emotionally
harmed by the lack of permanency. The child has resided with foster parents since
eight months of age. The foster parents seek to adopt the child, but they cannot
proceed while the objection is pending. Klarysa Benge also contends that she has
not contributed to the delay. As previously noted, Judge Hunter has not responded
to Klarysa Benge’s complaint, nor has she advanced an explanation for her failure to
rule upon the objection and motion for leave.
{¶7} After our review, we conclude that Judge Hunter has unduly delayed
rendering a decision on the objection in this matter. We further conclude that Judge
Hunter has a clear legal duty to issue a decision on the objection and that the child,
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OHIO FIRST DISTRICT COURT OF APPEALS
through the guardian ad litem, has a clear legal right to that decision. In addition,
Klarysa Benge has no plain and adequate remedy in the ordinary course of law.
{¶8} We therefore grant a writ of procedendo to compel Judge Hunter to
rule on the objection and motion for leave to file out of time filed by the child’s
grandmother and to enter that decision upon the record on or before November 7,
2013.
Writ issued.
HENDON, P.J., DINKELACKER and DEWINE, JJ.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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