[Cite as In re D.G, 2021-Ohio-429.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
IN RE: D.G. : APPEAL NOS. C-200359
C-200371
: TRIAL NO. F18-117X
:
O P I N I O N.
:
Appeal From: Hamilton County Juvenile Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: February 17, 2021
Joseph T. Deters, Hamilton County Prosecuting Attorney, Jennifer Weigel, and
Gretta Herberth, Assistant Prosecuting Attorneys, for Appellee Hamilton County
Department of Job and Family Services,
Raymond T. Faller, Hamilton County Public Defender, and Roxanna Mehdi,
Assistant Public Defender, for Guardian ad Litem for D.G.,
Treleven and Klingensmith Law LLC, Celia Klug Weingartner, for Guardian ad
Litem for Appellant Mother,
Christopher Kapsal, for Appellant Mother.
OHIO FIRST DISTRICT COURT OF APPEALS
BERGERON, Judge.
{¶1} In this parental termination case, we must evaluate the weight and
sufficiency of the evidence underlying the trial court’s grant of permanent custody to
the Hamilton County Department of Job and Family Services (“HCJFS”), as well as
the applicability of R.C. 2151.35(B)(1) when all parties expressly waive the 90 day
dispositional deadline. Because we find the trial court’s decision supported by both
the weight and sufficiency of the evidence, and we conclude that parents may
explicitly waive the dispositional deadline, we affirm the judgment of the trial court.
I.
{¶2} This case arose out of an incident in January 2018, when Mother
placed a 911 call that escalated into her involuntary hospitalization for psychiatric
care. On the same day as Mother’s hospitalization, HCJFS secured an ex parte
emergency placement order for D.G. (Mother’s only child), acting with haste because
D.G.’s school had already alerted it to potential concerns with Mother. Mother
remained in psychiatric care for approximately two weeks, receiving a diagnosis of
“unspecified psychosis.”
{¶3} A few months later, D.G. was adjudicated dependent. Between
adjudication and disposition, the magistrate convened a series of six hearings,
entertaining testimony from ten witnesses. Mother’s reunification plan, forged at the
beginning of these hearings, called for individual therapy for Mother, medication
management, family therapy, visitation, and maintenance of stable housing and
income.
{¶4} Mother’s mental health, however, overshadowed everything else at the
hearings. In addition to her diagnosis at the hospital of “unspecified psychosis,”
Mother was evaluated through the Family Access to Integrated Recovery (“FAIR”)
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OHIO FIRST DISTRICT COURT OF APPEALS
program, which diagnosed her as suffering from “delusional disorder.” Multiple
witnesses corroborated this diagnosis, chronicling delusional episodes by Mother
over the course of several years. The principal of D.G.’s school, for example, testified
that Mother regularly sent mass emails to school staff, other parents, and
grandparents admonishing that she “was being harassed or followed by or
videotaped” by unknown stalkers. The sheer number of emails, along with their
content, caused the principal to meet with Mother one-on-one to evaluate whether
she posed a risk of self-harm. A friend of Mother’s, with whom Mother and D.G.
were living prior to Mother’s hospitalization, echoed that Mother believed “people
were following her, people were trying to hurt her.” Similarly, the HCJFS caseworker
testified that more than a year after D.G.’s removal, Mother still believed “they are
following her, they are tape recording her,” but would not elucidate “who ‘they’ are.”
{¶5} Although Mother completed a substantial amount of therapy during
disposition, she resisted the contention that she had any mental health problems,
concluding that therapy was superfluous but for the court’s insistence that she
complete it. Mother portrayed D.G.’s removal as a result of “false allegations”
against her and suspected that her diagnosis had been fabricated for insurance
purposes. She declined to take medication for mental health management at any
point during the relevant time period.
{¶6} In 2019, the magistrate approved D.G.’s move from foster care in
Cincinnati to live with his maternal grandparents in South Carolina—with whom
Mother has a very strained relationship. Nevertheless, Mother continued to visit
D.G. in South Carolina for six hours every other weekend. By January 2020, HCJFS
filed a motion to modify temporary custody to permanent custody, which the
magistrate granted. Mother and Mother’s Guardian ad Litem (“GAL”) timely
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OHIO FIRST DISTRICT COURT OF APPEALS
objected to the trial court, which nonetheless adopted the magistrate’s decision.
Mother and her GAL now appeal, asserting two total assignments of error.
II.
{¶7} In her first assignment of error, Mother challenges the juvenile court’s
award of permanent custody on sufficiency and manifest-weight grounds. Mother’s
GAL joins in the manifest-weight challenge, but not the sufficiency challenge. For
ease of reading, we will address Mother’s sufficiency challenge first.
{¶8} When reviewing a grant of permanent custody, we conduct an
independent review to consider whether sufficient evidence supported the clear-and-
convincing standard. In re J.W., 1st Dist. Hamilton No. C-190189, 2019-Ohio-2730 ¶
13 (“Reviewing a juvenile court’s grant of a motion for permanent custody requires
us to independently find that the decision is supported by clear and convincing
evidence.”), citing In re W.W., 1st Dist. Hamilton Nos. C-110363 and C-110402, 2011-
Ohio-4912, ¶ 46. We will accept the trial court’s factual determinations if they are
underpinned by “some competent and credible evidence.” In re W.W. at ¶ 46.
Nonetheless, “whether the evidence is sufficient to sustain the judgment is a question
of law,” which we review de novo. In re A.B., 1st Dist. Hamilton Nos. C-150307 and
C-150310, 2015-Ohio-3247, ¶ 15, citing Eastley v. Volkman, 132 Ohio St.3d 328,
2012-Ohio-2179, 972 N.E.2d 517, ¶ 11.
{¶9} Following an adjudication of dependency, R.C. 2151.413(A) permits a
court to award permanent custody to an agency upon satisfaction of a two-prong test.
In re S.G., 1st Dist. Hamilton No. C-200261, 2020-Ohio-5244, ¶ 31; In re F.B., 1st
Dist. Hamilton No. C-200320, 2020-Ohio-5610, ¶ 16. The court may grant
permanent custody if it finds, by clear and convincing evidence: (1) that one of the
conditions in R.C. 2151.414 (B)(1)(a) through (e) is satisfied; and (2) that a grant of
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OHIO FIRST DISTRICT COURT OF APPEALS
permanent custody is in the child’s best interest, pursuant to the factors listed in
subsection (D)(1). See R.C. 2151.414(B)(1) and (D)(1); In re F.B. at ¶ 18. “In
conducting the best-interest analysis ‘no single factor is given greater weight or
heightened significance.’ ” Id. at ¶ 19, quoting In re P., 1st Dist. Hamilton Nos. C-
190309 and C-190310, 2019-Ohio-3637, ¶ 35.
{¶10} The parties agree that R.C. 2151.414(B)(1)(d)—the child has been in the
temporary custody of an agency for 12 or more months of a consecutive 22 month
period—applies to D.G.. The first prong of our two-prong test is therefore satisfied,
and Mother’s sufficiency challenge turns entirely on the adequacy of the trial court’s
best interest analysis.
{¶11} Appellate review of the best interest determination in this case is
greatly enhanced by the trial court’s careful delineation of its reasoning for each of
the R.C. 2151.414(D)(1)(a) through (e) factors. See In re A.M., Slip Opinion No.
2020-Ohio-5102, ¶ 32 (clear discussion of the statutory factors “facilitate[s] appellate
review” and “increase[s] public confidence in the judicial process”). For example,
Mother contends on appeal that the trial court failed to accord proper weight to her
close bond with D.G., including the fact that she maintained consistent visitation
throughout disposition. But in its discussion of the R.C. 2151.414(D)(1)(a) best
interest factor, the trial court acknowledged that Mother and D.G. are “clearly
bonded” and praised Mother’s visitation record. By the same token, it found that
D.G. was also “bonded with his grandparents,” who “have the ability to continue
meeting [D.G.’s] physical, emotional, educational, and therapeutic needs” in a
manner that Mother cannot. We are confident based on this analysis that the trial
court properly considered R.C. 2151.414(D)(1)(a).
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶12} Mother’s insistence that D.G.’s wishes were “unclear” at the close of
disposition runs headlong into the trial court’s summary of the relevant R.C.
2151.414(D)(1)(b) testimony. Just days before the final disposition hearing, D.G.
expressed to his In re Williams attorney that he was “not ready” to go back to
Mother, because he did not “believe that Mother w[ould] change her behaviors.”
Mother’s refusal to believe this statement cannot overcome the testimony in the
record, and we find that the trial court’s order properly factored D.G.’s preferences
into its R.C. 2151.414(D)(1)(b) analysis.
{¶13} Mother’s objections to the trial court’s R.C. 2151.414(D)(1)(c)
analysis—concerning the custodial history of the child—are also unavailing. We
acknowledge Mother’s point that she cared for D.G. without incident for more than
eight years of his life, but this history cannot erase the fact that D.G. had been in
temporary custody of HCJFS for 21 consecutive months by the filing of the
permanent custody motion. This fact helped support the trial court’s finding that
R.C. 2151.414(D)(1)(c) weighed in favor of permanent custody.
{¶14} Finally, the heart of the trial court’s best interest determination—and
of Mother’s sufficiency challenge—was its conclusion that R.C. 2151.414(D)(1)(d) (the
child’s need for a legally secure placement) weighed in favor of a grant of permanent
custody. The trial court found that, at the time of its order, D.G. “had been in the
custody of HCJFS for over two years * * * [and] Mother ha[d] not successfully
remedied the conditions that caused [D.G.] to be removed from her home.” Mother,
for her part, contends that multiple professionals disputed her diagnosis—essentially
suggesting that she had nothing left to remedy.
{¶15} Unfortunately for Mother, the record simply does not substantiate her
claims. Only one brief letter from the Central Clinic attests to a doctor’s belief that
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OHIO FIRST DISTRICT COURT OF APPEALS
Mother “does not meet the criteria” for delusional disorder—but the letter did not
address whether other conditions, such as “unspecified psychosis,” might be at play.
Besides this, Mother relies on a handful of statements from doctors who had not
completed a full diagnostic assessment, and thus could not offer (or refute) any
diagnosis whatsoever.
{¶16} In contrast, competent and credible evidence supported the trial
court’s factual finding that Mother continued to suffer from paranoid delusions
throughout disposition. We need not look much further than Mother’s own
testimony to see examples of this. Mother repeatedly testified that unknown
individuals were making film “parodies” of her and D.G. and posting them to social
media. She blamed her hospitalization on an incident where her sister “vandalized”
her car in South Carolina, despite the fact that this incident occurred more than a
year before her 911 calls. Alternatively, she attributed her January 911 call to the fact
that D.G. and a friend were “teasing” her, and she needed police intervention to
make them stop. Mother’s mass emails to D.G.’s school—a sampling of which can be
found in state’s exhibits 1-4—attest to her enduring belief that she is being followed,
framed, hacked, and “played with” for the entertainment of others. Even if one
might quibble with Mother’s technical diagnosis, her symptoms of paranoia and
delusional thinking are wholly consistent across testimony, medical records, and
other exhibits. These symptoms clearly impair her ability to care for D.G., and
substantiate D.G.’s legitimate concerns about her behavior.
{¶17} All parties agree that R.C. 2151.414(D)(1)(e) does not apply to Mother,
leaving nothing more in the trial court’s best interest determination for Mother to
contest. In light of our agreement with the trial court’s analysis of factors (D)(1)(a)
through (D)(1)(d), we find that the trial court’s best interest determination was
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OHIO FIRST DISTRICT COURT OF APPEALS
supported by sufficient evidence, and we overrule the sufficiency prong of Mother’s
assignment of error.
{¶18} Next, Mother and Mother’s GAL challenge the juvenile court’s decision
as against the manifest weight of the evidence. “In reviewing a challenge to the
weight of the evidence, we review the record to determine whether the trial court lost
its way and created such a manifest miscarriage of justice in resolving conflicts in the
evidence that its judgment must be reversed.” In re P/W Children, 1st Dist.
Hamilton No. C-200103, 2020-Ohio-3513, ¶ 27; In re Z.W., 1st Dist. Hamilton No. C-
200061, 2020-Ohio-3100, ¶ 7.
{¶19} As the trial court recognized, Mother “substantially engaged in many
of the case plan services” and is “clearly bonded” with D.G. Mother’s deep love for
D.G. and sincere desire to reunite her family is evident in every facet of this record.
However, Mother continually refused to acknowledge that she suffers from any kind
of mental instability, and treated her mental health problems only to the extent that
these proceedings forced her to attend therapy. Given the extensive evidence of
Mother’s delusional behavior and the demonstrated impact of that behavior on
Mother’s ability to provide a stable and secure environment for D.G., we cannot say
that the trial court’s decision to award permanent custody constituted a “manifest
miscarriage of justice.” We therefore overrule Mother’s sole assignment of error—
and Mother’s GAL’s second assignment of error—in full.
III.
{¶20} In an additional assignment of error, Mother’s GAL contends that the
trial court’s failure to complete disposition of this case within 90 days mandated a
dismissal without prejudice under the Ohio Supreme Court’s decision in In re K.M.,
159 Ohio St.3d 544, 2020-Ohio-995, 152 N.E.3d 245, ¶ 23. Neither Mother nor her
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OHIO FIRST DISTRICT COURT OF APPEALS
GAL raised this issue in their objections to the magistrate’s decision. “Therefore, we
can reverse only upon a finding of plain error.” In re H. Children, 1st Dist. Hamilton
No. C-190630, 2020-Ohio-774, ¶ 22.
{¶21} R.C. 2151.35(B)(1) provides that a dispositional hearing “shall not be
held more than ninety days after the date on which the complaint in the case was
filed.” Absent such a timely hearing, “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.” R.C. 2151.35(B)(1). In In re K.M., the Ohio Supreme Court explained
that the statutory scheme does not allow for implicit waivers of the 90 day deadline:
If the juvenile court fails to conduct a dispositional hearing within 90
days of the filing of the complaint, it “shall dismiss the complaint
without prejudice,” either upon a motion filed by one of the parties or
the guardian ad litem or upon the court’s “own motion.” By requiring
dismissal after the expiration of 90 days, the General Assembly leaves
no doubt that it intended to impose a mandatory deadline.
In re K.M. at ¶ 23. Mother’s GAL seizes upon this language to challenge the
trial court’s proceeding with disposition beyond the 90 day timeline. HCJFS
and D.G.’s GAL, however, present two counterarguments: first, they dispute
that In re K.M. should be applied retroactively; and, second, they maintain
that when all parties make an explicit waiver of the 90 day deadline, In re
K.M. does not apply. We will address each argument in turn.
{¶22} “[T]he general rule is that an Ohio court decision applies
retrospectively unless a party has contract rights or vested rights under the prior
decision.” DiCenzo v. A-Best Prods. Co., Inc., 120 Ohio St.3d 149, 2008-Ohio-5327,
897 N.E.2d 132, ¶ 25. An Ohio court has discretion to apply its decision
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OHIO FIRST DISTRICT COURT OF APPEALS
prospectively-only after it explicitly weighs three considerations: “(1) whether the
decision establishes a new principle of law that was not foreshadowed in prior
decisions; (2) whether retroactive application of the decision promotes or retards the
purpose behind the rule defined in the decision; and (3) whether retroactive
application of the decision causes an inequitable result.” Id. Prospective-only
application “is justified only under exceptional circumstances.” Id. at ¶ 28.
{¶23} The Ohio Supreme Court failed to include any discussion of
prospective-only application in In re K.M., so we should presume that the decision
applies retroactively. Moreover, the idea that a statute can use the word “shall” to
impose a mandatory deadline on proceedings does not strike us as a “new principle
of law.” The only “inequitable result” that In re K.M. can yield is the result explicitly
endorsed by the decision: requiring dismissal without prejudice when a court (even
benignly) exceeds the 90 day deadline. Therefore, we have no trouble concluding
that In re K.M. applies retroactively—and could be applied in this case.
{¶24} Next, we turn to a novel issue in the First District: whether In re K.M.
allows the parties to explicitly waive the 90 day deadline in R.C. 2151.35(B)(1). But
we first set the stage a bit with some additional context. This case was originally set
for adjudication and disposition on February 26, 2018—just 32 days after HCJFS
filed its complaint. Mother’s counsel requested a continuance extending the
adjudicatory phase, and the court granted a continuance until April 6, 2018. The
docket entry for the April 6, 2018 hearing reads: “All parties waive any objection to
the completion of the adjudication and/or disposition within 90 days of the filing of
the complaint.” No party contests the accuracy of this entry, which provides us an
instance of express waiver. The court adjudicated D.G. dependent on April 30, 2018,
and dispositional hearings began on June 13, 2018—well outside the 90 day window.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶25} One Ohio appellate district has already addressed the issue of express
waiver of the 90 day R.C. 2151.35(B)(1) deadline. In the Fourth District’s Matter of
K.M., all parties expressly waived the 90 day requirement because of conflicting
attorneys’ schedules. Matter of K.M., 4th Dist. Highland Nos. 20CA4 and 20CA6,
2020-Ohio-4476, ¶ 62. After acknowledging the Ohio Supreme Court’s prohibition
on implicit waiver, the Fourth District nonetheless found that R.C. 2151.35(B)(1)
allows for express waivers. Id. at ¶ 63. It explained that, although the 90 day
deadline in R.C. 2151.35(B)(1) is mandatory, the statute does not automatically
“deprive a court of jurisdiction to hold a dispositional hearing outside the time limits,
or state that cases shall be automatically dismissed without prejudice * * * .” Id. at ¶
65. Moreover, a holding that disallowed express waiver “would be an affront to
judicial economy and not comply with the legislature’s desire for a timely
disposition.” Id. at ¶ 63.
{¶26} We find Matter of K.M. to be persuasive—especially when coupled
with further examination of the Supreme Court’s reasoning in In re K.M. The In re
K.M. Court reached its conclusion that R.C. 2151.35(B)(1) disallows implicit waiver
by reasoning that the statute “contain[s] an express limitation on a juvenile court’s
authority for failure to comply with a statutory deadline.” (Emphasis added.) In re
K.M., 159 Ohio St.3d 544, 2020-Ohio-995, 152 N.E.3d 245, at ¶ 23. This express
limitation on the authority of the juvenile court, in turn, weighed in favor of a
mandatory (rather than directory) deadline. Id. Because R.C. 2151.35(B)(1) placed
the onus on the trial court to “conduct a dispositional hearing within 90 days of the
filing of the complaint * * * [or] ‘dismiss the complaint,’ ” the In re K.M. court
concluded that the inaction of the parties (i.e. implicit waiver) could not excuse the
trial court’s noncompliance with the statute. Id. at ¶ 23, 26, quoting R.C.
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OHIO FIRST DISTRICT COURT OF APPEALS
2151.35(B)(1). As a consequence, a juvenile court that forced the parties to continue
litigating past the 90 day dispositional deadline exceeded its statutory authority,
obligating it to dismiss the case “on its own motion or the motion of any party or the
guardian ad litem of the child.” Id. at ¶ 3, quoting R.C. 2151.35(B)(1).
{¶27} But while this reasoning supports a conclusion against implicit waiver,
it fails to illuminate the context of explicit waiver. Unlike implicit waiver, an explicit
waiver involves affirmative action by all parties—independent of the trial court, on
the record, and before the 90 days expire—to waive the R.C. 2151.35(B)(1) timeline
for disposition. As such, there is no “failure” by the trial court to comply with the
statute, nor any unwarranted exercise of “authority” by the trial court upon the
parties. See In re K.M. at ¶ 23. Instead, the parties choose to forgo their statutory
rights to an R.C. 2151.35(B)(1) dismissal, and the trial court simply honors that
choice.1 There is little danger—as with implicit waiver—of misinterpreting parents’
intentions or infringing upon their rights.
{¶28} In fact, we are convinced that the danger in this case runs the opposite
direction, and that serious due process problems could arise from denying parents
the ability to expressly waive the 90 day deadline. Time and again, we have equated
parental termination cases to “the family-law equivalent of the death penalty in a
criminal case,” and emphasized that it is “ ‘critical that the rights of a parent who
faces the permanent termination of parental rights are appropriately protected.” In
re S.G., 1st Dist. Hamilton No. C-200261, 2020-Ohio-5244, at ¶ 20, quoting In re
R.K., 152 Ohio St.3d 316, 2018-Ohio-23, 95 N.E.3d 394, ¶ 1. We have also
acknowledged that “[d]ismissal of a parental-termination case without prejudice is
1We note that the trial court can also choose not to honor the parties’ explicit waiver of the R.C.
2151.35(B)(1) time limit, and instead dismiss the action upon its own motion.
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OHIO FIRST DISTRICT COURT OF APPEALS
not always the best outcome for the parties involved—even for the parents.” In re
M.U., 1st Dist. Hamilton Nos. C-130809 and C-130827, 2014-Ohio-1640, ¶ 10. A
dismissal without prejudice does not necessarily mean that a parent regains custody:
instead, HCJFS retains its ability to simply refile the complaint. Refiling sends all
parties back to the starting line, further delaying any potential reunification.
{¶29} A parent who explicitly waives the 90 day R.C. 2151.35(B)(1) deadline
opts to avoid this restart and extend the timeline for disposition—and there are many
valid reasons to do so. A key witness may be difficult to locate; critical records could
take time to review; a parent might be temporarily hospitalized or otherwise unable
to testify.2 Denying a continuance in any of these circumstances could deprive a
parent of the opportunity to present their best case, and could itself rise to the level
of a due process violation. See In re M/W, 1st Dist. Hamilton No. C-180623, 2019-
Ohio-948, ¶ 41-43 (trial court’s denial of a continuance, which prevented a mother
from testifying, violated the mother’s due process rights—even where the
continuance exceeded a statutory deadline). Forcing a parent to choose between
presenting a subpar case on the 90 day R.C. 2151.35(B)(1) timeline or accepting a
months-long delay for refiling (with all other statutory deadlines still ticking) creates
a Hobson’s choice incompatible with our longstanding recognition of parents’
fundamental liberty interest in the care, custody, and control of their children. See
In re K.M., 159 Ohio St.3d 544, 2020-Ohio-995, 152 N.E.3d 245, at ¶ 29.
{¶30} Parallels to a criminal defendant’s speedy trial right underscore the
importance of—and statutory support for—allowing explicit waiver in this context.
2 In fact, the timeline of Mother’s hospitalization raises this precise issue. Mother was
hospitalized beginning on January 24, 2018; the combined adjudication and disposition hearing
was originally set for February 26, little more than a month later. Mother was released from
psychiatric care just a couple of weeks before this hearing date, and we have no way of knowing
whether she had sufficient time to recover and coordinate with counsel to prepare her defense—
but certainly the request for a continuance suggests that more time was necessary.
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OHIO FIRST DISTRICT COURT OF APPEALS
See, e.g., In re Kimble, 7th Dist. Harrison No. 99517CA, 2002-Ohio-2409, ¶ 24-26
(analogizing to speedy trial rights in support of its holding that “R.C. 2151.35(B)(1) is
not self-executing.”). An Ohio defendant’s “fundamental right” to a speedy trial is
outlined in R.C. 2945.71, which imposes “a mandatory duty to try an accused within
the time frame provided by the statute.” (Emphasis added.) State v. Ramey, 132
Ohio St.3d 309, 2012-Ohio-2904, 971 N.E.2d 937, ¶ 14. “Strict compliance with the
statute is required,” id., and a violation mandates dismissal “[u]pon motion made at
or prior to the commencement of trial.” R.C. 2945.73(B). Yet there is no question
that “a defendant can waive the right to a speedy trial * * * ‘as he might waive any
other right accorded him by statute * * *.’ ” State v. Adams, 43 Ohio St.3d 67, 69,
538 N.E.2d 1025 (1989), quoting State v. Kidd, 60 Ohio App.2d 374, 376, 397 N.E.2d
768 (1st Dist.1978). The decision to waive is often tactical: for example, it might
allow the defendant more time to gather exculpatory evidence, or to otherwise
prepare for trial. We would never invoke R.C. 2945.71 as grounds to force a criminal
defendant to a premature trial in spite of his knowing and valid attempts to waive his
right.
{¶31} So too here. The 90 day deadline in R.C. 2151.35(B)(1) functions as an
important safeguard to prevent undue delay of disposition—but it is not a double-
edged sword, to be turned against parents who need more time to present a
successful defense of their parental rights. In re K.M. established that the R.C.
2151.35(B)(1) deadline is “mandatory.” But as our discussion of R.C. 2934.71 reveals,
the mere fact that a statutory deadline is “mandatory” does not transform it to
wholly unwaivable. There is a world of difference between implicit waiver (which
operates systemically against parents) and explicit waiver (which can clearly work in
their favor). The very fact that the R.C. 2151.35(B)(1) timeline is enforced by
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OHIO FIRST DISTRICT COURT OF APPEALS
motion—again like speedy trial—implies that the parties may opt not to make a
motion. And when all parties communicate their express waiver of the deadline to
the court before the 90 days have run, we see no reason to force the parties to a
premature disposition or dismissal of the case.3
{¶32} In this case, Mother expressly waived the 90 day R.C. 2151.35(B)(1)
deadline, and thereby gained the advantage of an extended adjudicatory phase to
prepare and present evidence against the eventual adjudication of dependency. The
fact that Mother did not obtain her desired outcome does not mean that we should
rob future parties of the same advantage. We accordingly hold that when all parties
explicitly agree to waive the 90 day deadline in R.C. 2151.35(B)(1), the Ohio Supreme
Court’s ruling in In re K.M. does not mandate a dismissal without prejudice.
Accordingly, we overrule Mother’s GAL’s first assignment of error, and affirm the
judgment of the trial court.
Judgment affirmed.
ZAYAS, P.J., and MYERS, J., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion.
3 We acknowledge, of course, the imperfection of the comparison to speedy trial. Waiver of a
defendant’s speedy trial rights occurs in context of a specific statutory framework for tolling of the
R.C. 2945.71 timeline, and no parallel tolling provision exists for R.C. 2151.35(B). See R.C.
2945.72. Nonetheless, we are convinced that the decisive point is not the procedure for waiver
(which is itself distinct from tolling), but rather the nature of a “mandatory” statutory right and
the practical impact of denying waiver to the holder of that right. So far as the speedy trial right is
both mandatory and waivable, we find that the R.C. 2151.35(B) right to 90 day disposition can
also be both mandatory and waivable.
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In re D.G
Combined Opinion