Opinion
C.A. No. 99CA007318.
Dated: August 24, 2000.
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE NO. 99JC83921
BRENT L. ENGLISH, Attorney at Law, Courthouse Square, Suite 795, 310 Lakeside Avenue, West, Cleveland, Ohio 44113-1021, for Appellant, Kimberly Dove.
GREGORY A. WHITE, Prosecuting Attorney, and SHERRY NEWMAN SPENCER, Assistant Prosecuting Attorney, 226 Middle Avenue, 4th Floor, Elyria, Ohio 44035, for Appellee, Lorain County Children Services.
AMY WIRTZ, Attorney at Law, 104 Middle Avenue, #1, Elyria, Ohio 44035, for Appellee, Guardian ad litem.
ROBERT CABRERA, Attorney at Law, Kimberly Plaza Building, 106 Middle Avenue, Elyria, Ohio 44035, for Appellee, Daniel Olah.
DECISION AND JOURNAL ENTRY
Appellant Kimberly Dove has appealed from an order of the Lorain County Common Pleas Court, Juvenile Division, that granted temporary custody of her daughter to Lorain County Children Services. This Court reverses and remands with instructions to dismiss the complaint without prejudice.
I.
On September 21, 1998, the Lorain County Children Services (LCCS) filed a complaint in the Lorain County Common Pleas Court, Juvenile Division, seeking temporary custody of Kimberly Dove's daughter, Sarah. After a procedural parley between the parties, the juvenile court issued an order granting LCCS emergency temporary custody of Sarah and commenced a dispositional hearing on March 2, 1999. On March 22, 1999, the juvenile court entered its dispositional order, granting temporary custody of Sarah to LCCS. Dove timely appealed, asserting five assignments of error.
II.
R.C. 2151.35(B)(1) provides, in pertinent part:
* * * 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.
See, also, Juv.R. 34(A). This Court would further note that the statute's mandate to dismiss is not discretionary. In re Brown (1994), 96 Ohio App.3d 306, 310; In re Quickley (June 15, 1995), Tuscarawas App. Nos. 94AP080054, 94AP080058, unreported, 1995 Ohio App. LEXIS 3700, at *5. The language employed by the General Assembly indicates that the matter shall be dismissed if the dispositional hearing is held outside the juvenile court's ninety-day window. Moreover, juvenile matters demand prompt administration. This Court concludes, therefore, that the statute requires a juvenile court to dismiss without prejudice, on its own motion, when it cannot hold a timely dispositional hearing, i.e., within ninety days of the filing of a complaint. In re Brown, at 310; In re White (Jan. 28, 1999), Cuyahoga App. No. 74358, unreported, 1999 Ohio App. LEXIS 168, at *10; In re Quickley, supra, at * 5.
This Court would note that the dissent's argument regarding waiver and its reliance on In re Jones (Dec. 4, 1996), Lorain App. No. 96CA006393, unreported, are misplaced. This Court's holding in that case related to the application of the Ohio Rules of Civil Procedure to juvenile actions, specifically a Civ.R. 41(A)(1) dismissal with prejudice. This Court's citation to In re Kutzli (1991), 71 Ohio App.3d 843 was therefore dicta. Likewise, the dissent's reference to the Ohio Supreme Court decision in In re Davis (1999), 84 Ohio St.3d 520 is misguided. In re Davis pertained to the seven day limit within which a juvenile court must enter its disposition of a case involving a child adjudicated as abused, neglected or dependent under R.C. 2151.35(B)(3). In any event, this Court concludes that the language of R.C. 2151.35(B)(1) does not permit waiver and any decision from this Court heretofore holding to the contrary is hereby overruled.
In the case at bar, the dispositional hearing was clearly held more than ninety days after the complaint was filed. The complaint was filed on September 21, 1998, and the dispositional hearing was held on March 2, 4, 8 and 10, 1999. Because R.C. 2151.35(B)(1) requires the juvenile court to dismiss the complaint if a hearing cannot be held within ninety days, the judgment of the juvenile court on the complaint must be reversed, and the complaint filed September 21, 1998 must be dismissed without prejudice. See, e.g., In re White, supra, at *12.
III.
The juvenile court was without the authority to place Sarah in the temporary custody of Lorain County Children Services. The judgment of the juvenile court is reversed, and the cause remanded. Upon remand, the juvenile court shall dismiss without prejudice the complaint filed September 21, 1998.
The Court finds that there were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Lorain, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(E).
Costs taxed to Appellees.
Exceptions.
___________________________ BETH WHITMORE
BATCHELDER, P.J., CONCURS
I dissent as I feel that the trial court did have the authority to place Sarah in the temporary custody of Lorain County Children Services as Dove implictly waived the ninety day requirement under R.C. 2151.35(B)(1). See In re Jones (Dec. 4, 1996), Lorain App. No. 96CA006393, unreported; In re Kutzli (1991), 71 Ohio App.3d 843, 845-46.
To say that the trial court lacked authority to proceed would defeat the very purposes the time limits were designed to protect, i.e. prompt resolution of child custody issues and the adequate protection of children. As Justice Cook eloquently stated in In re Davis (1999), 84 Ohio St.3d 520, 523:
If there were jurisdictional consequences, a missed deadline would require either that the child be returned to a potentially risky home situation, or that a new complaint be filed and the process begun anew, delaying the final resolution of the issue even further. Such consequences would not serve the interests of children, who are too often relegated to temporary custody for too long.
Accordingly, because I would hold that the trial court had the authority to place Sarah in Lorain County Children Services' temporary custody, I respectfully dissent.