[Cite as In re S. Children, 2022-Ohio-2941.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
IN RE: S CHILDREN : APPEAL NOS. C-210672
C-210680
: C-220005
C-220006
: TRIAL NO. F16-2167-Z
:
: O P I N I O N.
Appeals From: Hamilton County Juvenile Court
Judgment Appealed From Is: Reversed and Cause Remanded
Date of Judgment Entry on Appeal: August 24, 2022
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Ernest W. Lee, Jr.,
Assistant Prosecuting Attorney, for Appellant/Cross-Appellee Hamilton County
Department of Job and Family Services,
Raymond T. Faller, Hamilton County Public Defender, and Klarysa Benge, Assistant
Public Defender, for Appellant/Cross-Appellee Guardian Ad Litem,
Kacy Eaves, for Appellants/Cross-Appellees C.S.1, M.S., and N.S.,
Tibbs Law Office and Sarah Michel, for Appellees/Cross-Appellants Mother and
Father,
Kimberly Thomas, for Appellees A.S., K.S., and C.S.2.,
The Durst Law Firm, Anthony D. Maiorano and Alexander J. Durst, for Appellees
Melissa and Lance Sayward.
OHIO FIRST DISTRICT COURT OF APPEALS
Per Curiam.
{¶1} This case originated with the death of A.S., and the subsequent
complaint filed by the Hamilton County Department of Job and Family Services
(“HCJFS”) alleging that A.S. and his surviving siblings are abused, neglected, and
dependent, and requesting an order of permanent custody to HCJFS. The juvenile
court refused to adjudicate A.S. abused, but adjudicated the remaining children
dependent, and issued a dispositional order granting legal custody of the surviving
minor S. children to relatives. Because we determine that the juvenile court was
required to dismiss HCJFS’s second amended complaint without prejudice under
former R.C. 2151.35(B)(1), we reverse the judgment of the juvenile court and instruct
the juvenile court to dismiss HCJFS’s complaint without prejudice.
Procedural History
{¶2} On October 6, 2016, HCJFS filed its initial complaint alleging that the
S. Children were abused, neglected, and dependent. The complaint alleged that A.S.,
then age 8, had been brought to the emergency department at Cincinnati Children’s
Medical Center where he later died, and that A.S.’s injuries on arrival were
inconsistent with parents’ version of events. HCJFS sought temporary custody of
A.S.’s siblings, including A.S.1, K.S., C.S.1, M.S., N.S. and C.S.2.
{¶3} On October 20, 2016, HCJFS filed a first amended complaint, which
omitted A.S.1, because she had reached the age of majority. On December 19, 2016,
parents filed a motion to dismiss the complaint for failure to set the dispositional
hearing within 90 days as required by former R.C. 2151.35(B)(1). One day prior to the
expiration of the 90-day deadline, on January 17, 2017, HCJFS filed a second amended
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complaint, which contained essentially the same set of facts and sought the same relief
as the first amended complaint.
{¶4} The juvenile court overruled parents’ motion to dismiss, holding that
HCJFS’s second amended complaint was a legal nullity, because it was essentially
identical to the first amended complaint, however the juvenile court determined that
it retained discretion to continue the case beyond the 90-day deadline in former R.C.
2151.35(B)(1).
{¶5} On February 22, 2017, HCJFS filed a third amended complaint.
Although the third amended complaint contained largely the same set of facts as the
first and second amended complaints, the third amended complaint added a request
for permanent custody, in lieu of temporary custody, and added an allegation that
A.S.’s death had been ruled a homicide by the Hamilton County Coroner’s Office.
HCJFS then filed a fourth amended complaint on March 13, 2017.
{¶6} The matter proceeded to trial on the adjudication phase in 2017. The
bulk of the evidence presented dealt with the circumstances surrounding A.S.’s death.
At the close of HCJFS’s case-in-chief, the juvenile court dismissed the abuse,
dependency, and neglect allegations as to C.S.1 and N.S. C.S.1, N.S., the guardian ad
litem (“GAL”), and HCJFS appealed the partial dismissal to this court. This court
affirmed the juvenile court’s decision to dismiss the neglect and abuse allegations with
respect to C.S.1 and N.S, but this court reversed the dismissal of the dependency
allegations and remanded for further proceedings. See In re S Children, 1st Dist.
Hamilton Nos. C-170624 and C-170653, 2018-Ohio-2961; In re S Children, 2018-
Ohio-5010, 126 N.E.3d 239, ¶ 37 (1st Dist.).
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{¶7} In April 2019, the juvenile court entered an order dismissing A.S. from
the complaint because he was deceased. HCJFS, the GAL, and the S. Children
appealed. This court reversed the juvenile court’s dismissal of A.S. from the case,
holding that a deceased child can be adjudicated as abused, and remanded for further
proceedings. In re S. Children, 1st Dist. Hamilton Nos. C-190287, C-190299, C-
190313, C-190320, C-190332 and C-190333, 2020-Ohio-3354.
{¶8} Following this court’s second remand, the juvenile court issued its
adjudication decision on November 25, 2020. The juvenile court concluded that A.S.
and his siblings were not abused or neglected, and it dismissed those allegations in
HCJFS’s complaint. The juvenile court determined that the children were dependent
under R.C. 2151.04(C).
{¶9} The matter proceeded to the dispositional phase in August 2021. Most
of the testimony presented at the dispositional phase dealt with the status of C.S.1,
M.S., N.S., and C.S.2, who had been in the custody of mother’s sister and her husband,
Melissa and Lance Sayward, in New York since May 2018.
{¶10} On December 20, 2021, the juvenile court issued an order denying
permanent custody of the S. Children to HCJFS, and granting legal custody of C.S.1,
M.S., N.S., and C.S.2 to the Saywards. The juvenile court declared K.S. emancipated,
because she had reached the age of majority.
{¶11} HCJFS, the GAL, C.S.1, M.S., and N.S. filed appeals. Parents filed a
cross-appeal.
The 90-Day Timeframe Expired Under Former R.C. 2151.35(B)(1)
{¶12} We address parents’ cross-appeal first, because it is dispositive of the
appeals and cross-appeal. Parents argue in their first assignment of error that the
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juvenile court lacked jurisdiction to hold the adjudication or disposition hearings,
because the hearings were held after the 90-day deadline under former R.C.
2151.35(B)(1).
{¶13} Former R.C. 2151.35(B)(1) provided that in abuse, neglect, or
dependency cases, “[t]he dispositional hearing shall not be held more than ninety days
after the date on which the complaint in the case was filed.” Under former R.C.
2151.35(B)(1), “[i]f 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.”
{¶14} The Ohio Supreme Court has declared that former R.C. 2151.35(B)(1)
imposes a mandatory deadline on the juvenile court’s jurisdiction and a party cannot
implicitly waive the 90-day limit. In re K.M., 159 Ohio St.3d 544, 2020-Ohio-995, 152
N.E.3d 245, ¶ 26, 31. Following In re K.M., this court recognized that the 90-day
mandatory deadline in former R.C. 2151.35(B)(1) can be expressly waived by
“affirmative action by all parties—independent of the trial court, on the record, and
before the 90 days expire.” In re D.G., 2021-Ohio-429, 168 N.E.3d 43, ¶ 27 (1st Dist.).
This court has also held that, although the juvenile rules freely allow amended
complaints prior to the adjudicatory hearing, the complaint must be amended before
the 90-day limit expires, and the complaint must modify the preceding complaint. See
In re H.M.M., 1st Dist. Hamilton No. C-210590, 2022-Ohio-473, ¶ 24-29.
{¶15} HCJFS filed its original abuse, neglect, and dependency complaint on
October 6, 2016. On October 20, 2016, HCJFS filed a first amended complaint, which
dismissed A.S.1 because she was over 18. HCJFS filed a motion for a continuance on
November 17, 2016, which the magistrate granted over the objection of the parents.
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On December 1, 2016, mother filed a motion to set aside the magistrate’s order
granting the continuance. Father then filed a motion to dismiss the complaint on
December 19, 2016.
{¶16} Based on the date of the first amended complaint, the dispositional
hearing should have occurred by January 18, 2017. One day prior to the 90-day limit,
on January 17, 2017, HCJFS filed a second amended complaint, which contained
essentially an identical set of allegations as the first amended complaint. Because
HCJFS’s second amended complaint was the same as its first amended complaint, it
had no effect on the 90-day deadline. An amended complaint must modify the
previous complaint to restart the 90-day deadline in former R.C. 2151.35(B)(1). In re
H.M.M. at ¶ 30. Therefore, the 90-day deadline in former R.C. 2151.35(B)(1) expired
on January 18, 2017—years before the dispositional hearing in this case took place.
{¶17} HCJFS and the GAL argue that the parents waived the statutory
deadline in April 2017 after HCJFS filed its second amended complaint. This court
has held that a waiver of the statutory deadline must occur prior to its expiration, and
that a juvenile court has no authority to proceed in a case after the statutory deadline,
except to order a dismissal without prejudice. In re H.M.M., 1st Dist. Hamilton No.
C-210590, 2022-Ohio-473, at ¶ 34. The record belies any waiver of the 90-day
deadline prior to its expiration, as parents filed objections to HCJFS’s motion for a
continuance, filed a motion to set aside the magistrate’s order, and filed a motion to
dismiss the complaint. The juvenile court refused to dismiss the case, and the parents
have been forced to wait until a final, appealable order exists to appeal the issue.
{¶18} The attorney for appellees A.S., C.S.2, and K.S. argues that the juvenile
court maintained jurisdiction through the Saywards’ custody petition, and the custody
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petition filed by paternal grandparents. The record shows that the Saywards’ custody
petition was filed in February 2017, and the paternal grandparents’ custody petitions
were filed in May and July 2017, so both families’ petitions were filed after the 90-day
deadline had expired in January 2017.
{¶19} HCJFS, the GAL, and the attorneys for C.S.1, M.S., and N.S. argue that
parents should be barred from raising the 90-day deadline because of the law-of-the-
case doctrine. Law of the case “provides that the decision of a reviewing court in a case
remains the law of that case on the legal questions involved for all subsequent
proceedings in the case at both the trial and reviewing levels.” Nolan v. Nolan, 11 Ohio
St.3d 1, 3, 462 N.E.2d 410 (1984). Cross-appellees assert that parents filed an
extraordinary writ in this court after the juvenile court refused to dismiss the case for
failure to follow the 90-day deadline, and that this court subsequently denied the
requested relief. This court’s decision denying parents’ writ was entered in a separate
proceeding and is not a part of this record nor a mandate to the juvenile court.
Therefore, law of the case has no application.
{¶20} HCJFS also argues that In re K.M., 159 Ohio St.3d 544, 2020-Ohio-995,
152 N.E.3d 245, should not be applied retroactively. HCJFS acknowledges that this
court has already determined that In re K.M. applies “retroactively.” See In re D.G.,
2021-Ohio-429, 168 N.E.3d 43, at ¶ 23. HCJFS argues that applying In re K.M.
retroactively here would lead to an unjust result because of the length of time this case
has been pending, and the impact it would have on the children. The length of time
this case has been pending is extraordinary, but HCJFS filed two interlocutory
appeals, and it would seem equally unjust to punish parents, who timely raised the
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issue in 2017 and have been barred from raising it until now in their first opportunity
on direct appeal.
{¶21} HCJFS also argues that its third amended complaint should be treated
as if a new complaint had been filed for purposes of former R.C. 2151.35(B)(1), because
HCJFS sought different relief from its earlier complaints, permanent instead of
temporary custody, and it added an allegation that A.S.’s death had been ruled a
homicide. The problem with HCJFS’s argument lies in the fact that the juvenile court
had already lost jurisdiction by the time HCJFS filed its third amended complaint.
Once 90 days had passed from the filing of HCJFS’s first amended complaint, the
juvenile court “ ‘had no authority to issue further orders except to journalize the
dismissal of the case.’ ” In re H.M.M., 1st Dist. Hamilton No. C-210590, 2022-Ohio-
473, at ¶ 21, quoting In re Z.S., 5th Dist. Perry Nos. 20-CA-00002, 20-CA-00003 and
20-CA-00004, 2021-Ohio-118, ¶ 22. Under former R.C. 2151.35(B)(1), the juvenile
court had no authority to act on HCJFS’s third amended complaint or fourth amended
complaint.
{¶22} Because we determine that the juvenile court lacked jurisdiction to hold
a dispositional hearing under former R.C. 2151.35(B)(1), we sustain parents’ first
assignment of error. The remainder of parents’ cross-appeal, as well as the appeals by
HCJFS, the GAL, and C.S.1, M.S., and N.S. relate to the merits of the juvenile court’s
adjudication and disposition decision and are moot. See App.R. 12(A)(1)(c).
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Conclusion
{¶23} We reverse the judgment of the juvenile court and remand with
instructions to the juvenile court to dismiss HCJFS’s complaint without prejudice.
Judgment reversed and cause remanded.
ZAYAS, P.J., BERGERON and WINKLER, JJ.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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In re S. Children
Combined Opinion