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.
Nos. 2018-1331, 2018-1375, 2018-1376, 2018-1377, 2018-1379, 2018-1380, and 2018-1381
SUPREME COURT OF OHIO
Decided March 19, 2020
2020-Ohio-995
FRENCH, J.
Submitted December 11, 2019
[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—
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.
{¶ 1} These discretionary appeals ask whether
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.
{¶ 3}
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
{¶ 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
{¶ 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 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
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. 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
{¶ 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
{¶ 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 90-day dispositional deadline in
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.
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.
{¶ 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 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
{¶ 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
{¶ 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.”
{¶ 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’ 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
{¶ 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
{¶ 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
CONCLUSION
{¶ 31} We hold that
{¶ 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.
O‘CONNOR, C.J., and KENNEDY, FISCHER, DEWINE, DONNELLY, and STEWART, JJ., concur.
Darin Avery, for appellants.
Edith A. Gilliland, for appellee.