In re H.M.M.

[Cite as In re H.M.M., 2022-Ohio-473.]

IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO

IN RE: H.M.M. AND J.A.M. : APPEAL NO. C-210590
TRIAL NO. F-13-1921
:

:
O P I N I O N.

Appeal From: Hamilton County Juvenile Court

Judgment Appealed From Is: Reversed and Remanded

Date of Judgment Entry on Appeal: February 18, 2022

Tibbs Law Office, LLC, and Sarah E. Michel, for Appellant Mother,

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Silvia Arieira,
Assistant Prosecuting Attorney, for Appellee Hamilton County Department of Job
and Family Services,

Raymond T. Faller, Hamilton County Public Defender, and Emily Hughes, Assistant
Public Defender, for the Guardian Ad Litem for H.M.M. and J.A.M.
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BOCK, Judge.

{¶1} S.M.M. (“Mother”) appeals the juvenile court’s judgment granting

permanent custody of her children, H.M.M. and J.A.M., to the Hamilton County

Department of Job and Family Services (“HCJFS”). She argues that because the

dispositional hearing occurred more than 90 days after the complaint was filed in

violation of former R.C. 2151.35(B)(1), the court was required to dismiss the action.

We agree, and we reverse the trial court’s judgment and remand the case to the

juvenile court to enter an order of dismissal without prejudice.

I. Facts and Procedure

{¶2} In 2019, Mother, H.M.M., and J.A.M. lived with J.A.M.’s father, G.A.

In April 2019, Mother informed medical workers that G.A. had sexually abused both

her and H.M.M., and that she feared for her life.

{¶3} On April 11, 2019, HCJFS moved for interim custody of H.M.M. and

J.A.M. In its complaint, HCJFS alleged that the two children were neglected, abused,

and/or dependent. HCJFS alleged that G.A. sexually assaulted both Mother and

H.M.M. According to HCJFS’s complaint, H.M.M. told investigators that she had

survived five years of sexual assaults from G.A. H.M.M. told HCJFS that Mother

knew of the assaults as early as 2018. But Mother told HCJFS that she discovered

G.A.’s sexual assault of H.M.M. just days before.

{¶4} Mother agreed to place H.M.M. and J.A.M. in HCJFS’s temporary

custody. Following a day-one hearing, the magistrate awarded temporary custody of

H.M.M. and J.A.M. to HCJFS.

{¶5} In May 2019, HCJFS filed its first amended complaint for temporary

custody. The first amended complaint contained additional facts. It identified

H.M.M.’s father, noted that Mother was charged with felonious child endangerment
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and obstruction of justice, and reported that G.A. had been charged with six counts

of rape and six counts of gross sexual imposition.

{¶6} In June 2019, HCJFS filed a second amended complaint for temporary

custody, which recited the facts alleged in the first amended complaint.

{¶7} On August 23, 2019, HCJFS filed a third amended complaint for

permanent custody. The third amended complaint alleged that Mother had entered a

guilty plea for the child-endangerment charge.

{¶8} On November 20, 2019, HCJFS filed a fourth amended complaint for

permanent custody. The fourth amended complaint recited the facts and allegations

from the third amended complaint.

{¶9} Following a hearing on December 11, 2019, the magistrate entered an

order finding that “[a]ll parties waive any objection to the completion of the

adjudication and/or disposition within 90 days of the filing of the complaint.”

{¶10} In September 2020, the magistrate conducted an adjudication hearing.

Mother was not present as she was detained in the Butler County Jail pursuant to an

immigration detainer. Based on the parties’ stipulations, the magistrate found clear

and convincing evidence that H.M.M. was an abused and dependent child, as defined

in R.C. 2151.031 and 2151.04. In addition, the magistrate found clear and convincing

evidence that J.A.M. was a dependent child.

{¶11} On April 5, 2021, the magistrate held a dispositional hearing and

granted permanent custody of H.M.M. and J.A.M. to HCJFS. Mother filed written

objections to the magistrate’s decision with the juvenile court and argued that the

dispositional hearing was not held within 90 days of the filing of the third amended

complaint as required by former R.C. 2151.35(B)(1).

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{¶12} The juvenile court overruled Mother’s objections. The court reasoned

that there was “substantively no difference between HCJFS expressly requesting the

original complaint to be dismissed, and then filing a new complaint and HCJFS

simply filing an amended complaint and allowing the original complaint to expire as

a matter of law.” The court found that HCJFS proceeded on the fourth amended

complaint and that Mother expressly waived the 90-day requirement in December

2020. The juvenile court adopted the magistrate’s decision and placed H.M.M. and

J.A.M. in the permanent custody of HCJFS.

{¶13} Mother appeals.

II. Law and Analysis

{¶14} In her sole assignment of error, Mother challenges the juvenile court’s

authority to hold the dispositional hearing after the expiration of former R.C.

2151.35(B)(1)’s 90-day deadline.

{¶15} Mother proposes that we should review the juvenile court’s alleged

noncompliance with R.C. 2151.35(B)(1) as an issue of the juvenile court’s subject-

matter jurisdiction. Subject-matter jurisdiction is “the constitutional or statutory

power of a court to adjudicate a particular class or type of case.” Corder v. Ohio

Edison Co., 162 Ohio St.3d 639, 2020-Ohio-5220, 166 N.E.3d 1180, ¶ 14. Juvenile

courts have exclusive, original jurisdiction over matters of child abuse, neglect, and

dependency. R.C. 2151.23(A)(1). The complaint’s allegations bring the matter within

the juvenile court’s subject-matter jurisdiction.

{¶16} Former R.C. 2151.35(B)(1) affects a juvenile court’s authority over a

particular case. See In re L.S., 4th Dist. Ross No. 20CA3719, 2020-Ohio-5516, ¶ 19

(reasoning that noncompliance with former R.C. 2151.35(B)(1)’s 90-day deadline

“would render [a juvenile court’s] resulting decisions voidable, not void.”). The
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jurisdiction over the particular case “encompasses the [juvenile] court’s authority to

determine a specific case within that class of cases that is within its subject matter

jurisdiction.” Pratts v. Hurley, 102 Ohio St.3d 81, 2004-Ohio-1980, 806 N.E.2d 992,

¶ 12. This challenge raises a question of law that we review de novo. In re J.L.M.,

2018-Ohio-2175, 114 N.E.3d 658, ¶ 9 (3d Dist.).

A. R.C. 5151.35(B)(1)

{¶17} Ohio’s juvenile courts are creatures of legislative enactment and derive

their power and jurisdiction from R.C. Chapters 2151 and 2152. See R.C. 2151.07; In

re Z.R., 144 Ohio St.3d 380, 2015-Ohio-3306, 44 N.E.3d 239 ¶ 14. Therefore,

juvenile courts can 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, citing In re Z.R.,

144 Ohio St.3d 380, 2015-Ohio-3306, 44 N.E.3d 239, ¶ 14. A complaint alleging

abuse, neglect, or dependency of a child must allege the particular factual basis for

the allegation and state whether the agency is seeking temporary or permanent

custody. R.C. 2151.27(C); Juv.R. 10. Following an adjudicatory hearing where 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.

{¶18} The Ohio Revised Code imposes a time limit for the life of an abuse,

neglect, or dependency case. When a complaint alleges abuse, neglect, or

dependency, a dispositional hearing “shall not be held more than ninety days after

the date on which the complaint in the case was filed.” Former R.C. 2151.35(B)(1). If

the dispositional hearing is not held within that 90-day window, “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.” Id.
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{¶19} The Ohio Supreme Court has considered the effect of noncompliance

with former R.C. 2151.35(B)(1) and held that a juvenile court must dismiss a case

without prejudice after the expiration of the 90-day deadline. In re K.M. at ¶ 31. The

90-day window is a mandatory deadline and operates as an “express limitation on a

juvenile court’s authority.” Id. at ¶ 23. This rule reflects an attempt by the General

Assembly to balance the rights of the parents with the interest of protecting children.

Id. at ¶ 30. Former R.C. 2151.35(B)(1) balanced those interests by permitting the

“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.” Id.

{¶20} In light of the explicit statutory language that requires dismissal after

the expiration of the 90-day period, “there can be no implicit waiver of the 90-day

limit.” Id. at ¶ 26. Further, the court held that the juvenile rules’ procedural

requirements “cannot supersede the statutory mandate in [former] R.C.

2151.35(B)(1) requiring dismissal of the complaint.” Id. at ¶ 27 (rejecting the Fifth

District’s conclusion that an untimely motion to dismiss warranted denial of the

motion in In re K.M., 5th Dist. Richland Nos. 18CA07 and 18CA08, 2018-Ohio-3144,

¶ 22).

{¶21} Following the Ohio Supreme Court’s opinion in In re K.M., we have

explained that “a juvenile court that force[s] the parties to continue litigating past the

90 day dispositional deadline exceed[s] its statutory authority.” In re D.G., 2021-

Ohio-429, 168 N.E.3d 43, ¶ 26 (1st Dist.), quoting In re K.M. at ¶ 3, quoting former

R.C. 2151.35(B)(1); see In re Z.S., 5th Dist. Perry Nos. 20-CA-00002, 20-CA-00003

and 20-CA-00004, 2021-Ohio-118, ¶ 22 (“after the expiration of the ninety day

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deadline on October 23, 2018, the trial court had no authority to issue further orders

except to journalize the dismissal of the case.”).

B. Amended Complaints

{¶22} Mother challenges the validity of HCJFS’s fourth amended complaint.1

The parties agree that the fourth amended complaint contains no new facts or

allegations. Mother argues that the fourth amended complaint “cannot be considered

an amended complaint as a matter of law.” Therefore, Mother contends that the third

amended complaint, filed on August 23, 2019, triggered former R.C. 2151.35(B)(1)’s

90-day deadline.

{¶23} The trial court rejected Mother’s argument and explained that “HCJFS

filed new complaints rather than moving to dismiss the preceding complaint” and

that “[t]here is substantively no difference between HCJFS expressly requesting the

original complaint be dismissed, and then filing a new complaint and HCJFS simply

filing an amended complaint.”

{¶24} A juvenile court has broad discretion to allow amendments to a

complaint under Juv.R. 22 and we generally review those decisions for an abuse of

discretion. In re Morales, 8th Dist. Cuyahoga No. 78271, 2001 Ohio App. LEXIS

1716, *16 (Apr. 12, 2001), citing State v. Aller, 82 Ohio App.3d 9, 12, 610 N.E.2d 1170

(6th Dist.1992). But Mother’s challenge raises a question of statutory construction,

which is an issue of law that we review de novo. See Vontz v. Miller, 2016-Ohio-8477,

111 N.E.3d 452, ¶ 26 (1st Dist.).

{¶25} Under the juvenile rules, a complaint “may be amended at any time

prior to the adjudicatory hearing.” Juv.R. 22(A) and (B). That language places no

1Although the second amended complaint is identical to the first amended complaint,
Mother’s appellate brief does not challenge its validity.
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limitation on amendments. In re Henderson, 11th Dist. Lake No. 96-L-068, 1997

Ohio App. LEXIS 5333, *28 (Nov. 28, 1997). While the rule’s language does not

constrain a party’s ability to amend a complaint prior to an adjudicatory hearing, the

complaint must be amended before it has any practical effect on the case.

{¶26} Both the relevant chapters of the Revised Code and the Rules of

Juvenile Procedure leave “amended complaint” undefined. Therefore, we must look

to the plain and ordinary meaning of the word. Rhodes v. City of New Philadelphia,

129 Ohio St.3d 304, 2011-Ohio-3279, 951 N.E.2d 782, ¶ 17, citing Sharp v. Union

Carbide Corp., 38 Ohio St.3d 69, 70, 525 N.E.2d 1386 (1988). An “amended

complaint” is “[a] complaint that modifies and replaces the original complaint by

adding relevant matters.” Black’s Law Dictionary 303 (8th Ed.2004). Likewise,

“amend” means “to make right” or “change the wording of; specif., to formally alter

by striking out, inserting, or substituting words.” Black’s Law Dictionary 89 (8th

Ed.2004). In common-usage dictionaries, “amend” means to improve, to remove

faults, or to alter. Webster’s II New College Dictionary 36 (2001).

{¶27} Applying those definitions, the ordinary meaning of “amended

complaint” requires a modification or change from the preceding complaint. In this

case, the fourth amended complaint filed by HCJFS did not modify, change, or alter

the third amended complaint. Rather, it contained an identical recitation of the third

amended complaint. In light of the plain and ordinary meaning of the rule’s

language, the November 2019 complaint was not an amended complaint.

{¶28} HCJFS and the guardian ad litem argue that this court’s precedent in

In re T.M. precludes finding the fourth amended complaint invalid. In re T.M., 1st

Dist. Hamilton Nos. C-200009 and C-200012, 2020-Ohio-6950. This argument is

unpersuasive. In In re T.M., we held that a dispositional hearing that began within
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the 90-day deadline, but was continued for two months, complied with former R.C.

2151.35(B)(1). Id. at ¶ 5. HCJFS and the guardian ad litem correctly note that in In re

T.M., the agency filed seven amended complaints. See id. at ¶ 1. But the validity of

those amended complaints was not before this court in In re T.M. Rather, we only

considered the effect of a continuance on former R.C. 2151.35(B)(1). Id. at ¶ 9.

Moreover, HCJFS premises its analogy on facts that do not appear in this court’s

opinion in In re T.M. Therefore, any reliance on In re T.M. is misplaced.

{¶29} Our interpretation is consistent with the policy that the juvenile rules

should be construed to ensure “the parties a fair hearing and the recognition and

enforcement of their constitutional and other legal rights.” Juv.R. 1(B)(1). And it is

consistent with the principle that the juvenile rules are construed to “secure

simplicity and uniformity in procedure, fairness in administration, and the

elimination of unjustifiable expense and delay.” Juv.R. 1(B)(3). Moreover, the

juvenile rules “cannot be construed in a way that extends or limits the statutory

authority of the juvenile court.” In re K.M., 159 Ohio St.3d 544, 2020-Ohio-995, 152

N.E.3d 245, at ¶ 27. Allowing a party to file endless amended complaints, without

any change in fact or allegations, would circumvent former R.C. 2151.35(B)(1)’s 90-

day deadline. We reject any interpretation of the juvenile rules that encourages

gamesmanship.

{¶30} The trial court erred when it determined that the complaint filed on

November 20, 2019, was an amended complaint. Because there were no changes or

alterations to the complaint’s allegations or facts, the November 20, 2019 complaint

did not extend or reset former R.C. 2151.35(B)(1)’s 90-day deadline.

{¶31} As a mandatory deadline, former R.C. 2151.35 was a limitation on the

authority of a juvenile court. As such, former R.C. 2151.35(B)(1) required that the
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juvenile court hold the dispositional hearing within 90 days of “the date on which the

complaint in the case was filed.” We agree with Mother—the third amended

complaint, filed on August 23, 2019, triggered R.C. 2151.35(B)(1)’s 90-day deadline.

The dispositional hearing was not held within 90 days of that complaint. Following

the expiration of the 90 days, the juvenile court was required to dismiss the case

without prejudice.

C. Waiver

{¶32} Mother argues that the juvenile court had no jurisdiction to obtain a

waiver following the expiration of the 90-day deadline. HCJFS disagrees and

contends that Mother explicitly waived the 90-day dispositional deadline. On

December 11, 2019, the magistrate found that “all parties waive any objection to the

completion of the adjudication and/or disposition within 90 days of the filing of the

complaint.”

{¶33} Waiver is the “intentional relinquishment or abandonment of a known

right.” In re R.K., 152 Ohio St.3d 316, 2018-Ohio-23, 95 N.E.2d 394, ¶ 5, quoting

State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 20. The Ohio

Supreme Court held that, because of the mandatory deadline found in former R.C.

2151.35(B)(1), “there can be no implicit waiver of the 90-day limit.” In re K.M., 159

Ohio St.3d 544, 2020-Ohio-995, 152 N.E.3d 245, at ¶ 26. In In re D.G., we

recognized that R.C. 2151.35(B)(1) allows for an express waiver of that 90-day

deadline. In re D.G., 2021-Ohio-429, 168 N.E.3d 43, at ¶ 27. An explicit waiver of the

90-day deadline involves an “affirmative action by all parties—independent of the

trial court, on the record, and before the 90 days expire.” Id.

{¶34} There can be no explicit waiver of the 90-day deadline after the 90

days expire. After that deadline, a juvenile court has no authority to issue further
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orders except to journalize the dismissal of the case without prejudice. See In re Z.S.,

5th Dist. Perry Nos. 20-CA-00002, 20-CA-00003 and 20-CA-00004, 2021-Ohio-

118, at ¶ 23 (“the fact that appellants filed a motion to withdraw their admission to

the adjudicatory phase of the proceeding does not serve to extend the ninety day time

limit as the language of the statute and the rule as well as the Supreme Court’s

holding in In re K.M. provide no flexibility.”).

{¶35} Here, the 90-day deadline expired before the December 12 hearing.

Therefore, the court had no authority to obtain a waiver at that hearing. As we have

explained, “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.’ ” In re D.G. at ¶ 26, quoting In re K.M. at ¶ 26, quoting former R.C.

2151.35(B)(1); see In re L.S., 4th Dist. Ross No. 20CA3719, 2020-Ohio-5516, ¶ 19

(“any error the juvenile court made in proceeding on the dependency complaint after

the deadline passed in this case would render its resulting decisions voidable.”).

{¶36} HCJFS argues that Mother failed to object to any continuances

following her alleged waiver and cites this court’s decision in In re M.U., 1st Dist.

Hamilton Nos. C-130809 and C-130827, 2014-Ohio-1640, for the proposition that

“in order for a parent to argue that a previous time waiver is not valid, the parent

would have to demonstrate that their counsel failing to seek dismissal of a complaint

on the ninetieth day was ineffective assistance of counsel.” We disagree. In In re

M.U., we relied on the rationale from In re Davis, 84 Ohio St.3d 520, 523, 705

N.E.2d 1219 (1999), to analyze former R.C. 2151.35(B)(1)’s 90-day deadline. In re

M.U. at ¶ 10. But In re M.U. predates the Ohio Supreme Court’s decision in In re

K.M., which found that “[u]nlike the statutes we examined in Davis and In re Z.R.,
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[former] R.C. 2151.35(B)(1) does contain an express limitation on a juvenile court’s

authority for failure to comply with a statutory deadline.” In re K.M. at ¶ 23 and 27.

In light of In re K.M., we decline to apply In re M.U. to the facts of this case.

{¶37} Therefore, we sustain Mother’s single assignment of error. The

November 20, 2019 complaint was not an “amended complaint” and its filing did not

restart former R.C. 2151.35(B)(1)’s 90-day deadline. Rather, the 90-day deadline

began on August 23, 2019, when HCJFS filed the third amended complaint. Because

the 90-day deadline had passed, the juvenile court lacked authority to hold the

December 12, 2019 hearing or to find that Mother expressly waived that deadline.

Finally, the juvenile court lacked authority to hold its April 5, 2021 dispositional

hearing, well after the mandatory 90-day dispositional deadline lapsed. Following

the 90-day deadline’s expiration, the only thing left for the court to do was dismiss

the case without prejudice. See In re K.M. at ¶ 31.

III. Conclusion

{¶38} We sustain Mother’s assignment of error, reverse the judgment of the

juvenile court, and remand the case to the juvenile court to enter an order of

dismissal without prejudice.

Judgment reversed and case remanded.

ZAYAS, P.J., and CROUSE, J., concur.

Please note:

The court has recorded its entry on the date of the release of this opinion.

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