In re J.S. , 2022 Ohio 1679 ( 2022 )

[Cite as In re J.S., 2022-Ohio-1679.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
IN RE J.S. :
No. 111097
Minor Child :
[Appeal by K.S., Mother] :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: May 19, 2022
Civil Appeal from the Cuyahoga County Court of Common Pleas
Juvenile Division
Case No. AD-21905665
Appearances:
Scott J. Friedman, for appellant.
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney and Joseph C. Young, Assistant Prosecuting
Attorney, for appellee.
KATHLEEN ANN KEOUGH, P.J.:
Appellant, K.S. (“Mother”), appeals from the decision of the juvenile
court granting permanent custody of her minor child, J.S. (“J.S.” or the “child”), to
the Cuyahoga County Department of Children and Family Services (“CCDCFS” or
the “agency”). Mother contends that the court should have dismissed the case
without prejudice because it failed to hold the dispositional hearing within 90 days
after CCDCFS filed its complaint seeking permanent custody. We affirm the trial
court’s judgment denying Mother’s motion to dismiss.
I. Background
On July 2, 2021, CCDCFS filed a complaint alleging that J.S. was an
abused, neglected, and dependent child and requesting a disposition of permanent
custody to the agency. CCDCFS also filed a motion seeking predispositional
emergency temporary custody of the child.
On August 23, 2021, the court held a hearing at which Mother
appeared without counsel, after which the court continued the matter for further
hearing on the temporary emergency custody issue to September 20, 2021, because
service had not been perfected and counsel had not yet been appointed for Mother.
During this hearing, counsel for CCDCFS advised the court that the 90-day statutory
period for holding the dispositional hearing ended on September 30, 2021.
On September 14, 2021, the court, through its magistrate, issued an
entry continuing the hearing set for September 20, 2021, to October 4, 2021,
“because the Court is unavailable on September 20, 2021. The Court finds good
cause to go beyond the speedy trial time.”
Thereafter, on October 4, 2021, the magistrate held a hearing on
CCDCFS’s motion for temporary custody of the child, after which the child was
committed to the emergency temporary custody of CCDCFS. Although Mother was
not present, her counsel appeared and participated in the hearing, including cross-
examining former and current CCDCFS social workers assigned to the case.1 At the
close of the hearing, the magistrate and counsel for the parties set dates for the
adjudicatory hearing to be held on November 8, 2021, and the dispositional hearing
on November 12, 2021. Mother’s counsel raised no objection that the dispositional
hearing was set for a date beyond the 90-day statutory time period for such hearings.
On October 12, 2021, after obtaining new counsel, Mother filed a
motion to vacate the emergency temporary custody order and dismiss the complaint
without prejudice. In her motion, Mother argued that under R.C. 2151.28(B)(3), “in
no case shall the dispositional hearing be held later than 90 days after the date on
which the complaint was filed.” Mother argued that because the complaint was filed
on July 2, 2021, and the hearing on CCDCFS’s motion for emergency temporary
custody was held on October 4, 2021, the hearing was held four days past the
mandatory 90-day time period of R.C. 2151.28(B)(3) and the case should therefore
be dismissed without prejudice.
The trial court denied Mother’s motion. It found that the magistrate’s
September 14, 2021 order stating there was “good cause to go beyond the speedy
trial time” put Mother on notice that the case would continue past the 90-day
statutory time period and therefore, if she had an objection, she should have filed a
motion to dismiss prior to the October 4, 2021 hearing. The court further found that
Mother participated in the October 4 hearing — which occurred 94 days after the
1 Although Mother contends she was unrepresented at this hearing, the transcript
of the hearing reflects that assistant public defender Taylor Slivka appeared on Mother’s
behalf.
complaint was filed — without raising any objection, therefore acquiescing to the
court’s authority to proceed and implicitly waiving any objection to the case
continuing past the 90-day time period.
On November 8, 2021, the trial court held an adjudicatory hearing
after which J.S. was adjudicated to be neglected and dependent. On November 12,
2021, the trial court held a dispositional hearing and after making the appropriate
findings, awarded permanent custody of J.S. to CCDCFS. This appeal followed.
II. Law and Analysis
In her single assignment of error, Mother contends that the trial court
erred in denying her motion to vacate the magistrate’s temporary custody order and
dismiss the case without prejudice due to the trial court’s failure to hold the
dispositional hearing within the 90-day statutory time limits set forth in R.C.
2151.28(B) and 2151.35(B)(1).
This is a question of law that we review de novo. In re V.M., 8 th Dist.
Cuyahoga No. 109725, 2020-Ohio-6746, ¶ 7 (where the facts are undisputed and the
appellate court is faced with a purely legal question of whether the trial court
correctly applied the law to the facts, the question is a matter of law that is reviewed
de novo).
“Ohio’s juvenile courts are creatures of legislative enactment and
derive their power and jurisdiction from R.C. Chapters 2151 and 2152.” In re
H.M.M., 1st Dist. Hamilton No. C-210590, 2022-Ohio-473, ¶ 17, citing R.C. 2151.07;
In re Z.R., 144 Ohio St.3d 380, 2015-Ohio-3306, 44 N.E.3d 239, ¶ 14. Thus, juvenile
courts may only exercise the authority conferred by the General Assembly. In re
K.M., 159 Ohio St.3d 544, 2020-Ohio-995, 152 N.E.3d 245, ¶ 17.
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 complaint alleging that a child is abused, neglected, or dependent
must set forth the factual basis for the allegation and state whether the agency is
seeking temporary or permanent custody. R.C. 2151.27(C). Following an
adjudicatory hearing, if the juvenile court finds clear and convincing evidence that
the child is abused, neglected, or dependent, the court must hold a separate
dispositional hearing before issuing a disposition order. R.C. 2151.35(A)(1) and
2151.353.
The Ohio Revised Code sets out time limits for the adjudicatory and
dispositional hearings. With respect to the adjudicatory hearing, R.C. 2151.28(A)(2)
provides:
If the complaint alleged that the child is an abused, neglected, or
dependent child, the adjudicatory hearing shall be held no later than
thirty days after the complaint is filed, except that, for good cause
shown, the court may continue the adjudicatory hearing for either of
the following periods of time:
(a) For ten days beyond the thirty-day deadline to allow any party to
obtain counsel;
(b) For a reasonable period of time beyond the thirty-day deadline to
obtain service on all parties or any necessary evaluation, except that
the adjudicatory hearing shall not be held later than sixty days after
the date on which the complaint was filed.
The timeframes for the adjudicatory hearing are not jurisdictional,
however. As set forth in R.C. 2151.28(K),
The failure of the court to hold an adjudicatory hearing within any time
period set forth in division (A)(2) of this section 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.
With respect to time limits for the dispositional hearing, R.C.
2151.28(B)(3) provides that “in no case shall the dispositional hearing be held later
than ninety days after the date on which the complaint was filed.” Under R.C.
2151.35(B), the trial court may extend the 90-day time period for a dispositional
hearing, however, upon a finding of good cause:
The court may hold the dispositional hearing for an adjudicated
abused, neglected, or dependent child immediately after the
adjudicatory hearing if all parties were served prior to the adjudicatory
hearing with all documents required for the dispositional hearing. The
dispositional hearing shall not be held more than thirty days after the
adjudicatory hearing is held. The dispositional hearing shall not be
held more than ninety days after the date on which the complaint in the
case was filed except that, for good cause shown, the court, on its own
motion or on the motion of any party or the child’s guardian ad litem,
may continue the dispositional hearing for a reasonable period of time
beyond the ninety-day deadline. This extension beyond the ninety-day
deadline shall not exceed forty-five days * * *. 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.
Mother argues that the trial court erred in denying her motion
because “there is no question that the dispositional hearing occurred beyond the 90-
day time limit” and “therefore, the complaint should have been dismissed.” Her
argument is without merit.
As set forth above, there are no jurisdictional time limits for the
adjudicatory hearing; the only requirement is that it precede the dispositional
hearing, which must be held no later than 135 days after the filing of the complaint
if the court has found “good cause” to continue the dispositional hearing beyond the
90-day time period. The complaint in this case was filed on July 2, 2021. The trial
court thereafter issued an entry stating that it had found “good cause to go beyond
the speedy trial time” in the case. On October 4, 2021, the trial court held a hearing
on CCDCFS’s motion for predispositional temporary custody, after which J.S. was
placed in agency custody. The adjudicatory hearing was held on November 8, 2021,
129 days after the filing of the complaint, and the dispositional hearing was held on
November 12, 2021, 133 days after the complaint was filed, within the statutory time
limit for cases in which the trial court has found good cause for continuing the
dispositional hearing.
Mother contends that the trial court erred in denying her motion,
however, because it found that she implicitly waived the 90-day time limit, even
though the Ohio Supreme Court found in In re K.M., 159 Ohio St.3d 544, 2020-
Ohio-995, 152 N.E.3d 145, at ¶ 26, that “there can be no implicit waiver of the 90-
day limit” in R.C. 2151.35(B)(1). This argument is without merit.
In In re K.M., the Ohio Supreme Court analyzed a former version of
R.C. 2151.35 that did not contain the “good cause” language that was later added to
the statute. In analyzing the former version, the Ohio Supreme Court found that
because the statute explicitly required dismissal after the 90-day time period and
did not contain any language that allowed the court to act beyond the 90-day limit,
there could be no implicit waiver of the 90-day time limit. Id. at ¶ 24-25. After In
re K.M. was decided, the General Assembly amended the statute effective April 12,
2021, to add language that allows the court to act beyond the 90-day time limit; i.e.,
“for good cause shown, the court, on its own motion or on the motion of any party
or the child’s guardian ad litem, may continue the dispositional hearing for a
reasonable period of time beyond the ninety-day deadline. This extension beyond
the ninety-day deadline shall not exceed forty-five days * * *.” The amended version
of the statute applies to this case and, therefore, Mother’s reliance on In re K.M. is
misplaced.
Furthermore, even if the trial court erred in denying Mother’s motion
based on her implicit waiver, we find no prejudicial error. The magistrate found
good cause to continue the dispositional hearing beyond the 90-day requirement, as
allowed by R.C. 2151.35(B), and ultimately, the hearing was held within the time
period required by statute.
Mother contends, however, that the magistrate’s September 14, 2021
order continuing the emergency temporary custody hearing and finding “good cause
to go beyond the speedy trial time” did not continue the dispositional hearing
because that hearing had not yet been scheduled when the magistrate entered the
order. She argues that instead, the magistrate’s order continued only the hearing
for emergency temporary custody and therefore, because there was no “good cause”
to justify the juvenile court’s delay in holding the dispositional hearing, the trial
court should have granted her motion to dismiss. We are not persuaded.
First, we find no requirement in either R.C. 2151.28 or 2151.35 that a
trial court may not continue the dispositional hearing for good cause only after the
adjudicatory hearing has been held and the dispositional hearing is set, as Mother
seems to argue. Furthermore, it is apparent from the record that the magistrate’s
order finding “good cause to go beyond the speedy trial time” related to continuing
the dispositional hearing, not the hearing on emergency temporary custody. At the
hearing on August 23, 2021, the magistrate was informed that service had still not
been completed and counsel was yet to be appointed for Mother. Counsel for
CCDCFS also advised the magistrate at this hearing that the 90-day time period for
the dispositional hearing ended a little over a month later, on September 30, 2021.
Accordingly, the magistrate was made aware that to resolve the case under these
circumstances, the trial court would need to schedule the dispositional hearing
beyond the 90-day deadline. It is evident, therefore, that although the magistrate’s
September 14, 2021 entry continued the emergency temporary custody hearing to
October 4, 2021 due to the court’s unavailability, its finding that there was “good
cause to go beyond the speedy trial time” related to continuing the dispositional
hearing, not only the temporary custody hearing.
Because the magistrate properly found good cause under the
circumstances of the case to continue the dispositional hearing beyond the 90-day
deadline, as permitted by R.C. 2151.35(B)(1), the trial court did not err in denying
Mother’s motion to vacate the magistrate’s decision and dismiss the case. The
assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court, juvenile division, to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, PRESIDING JUDGE
EILEEN A. GALLAGHER, J., and
MARY J. BOYLE, J., CONCUR