In re Davis

84 Ohio St. 3d 520
CourtOhio Supreme Court
DecidedMarch 3, 1999
DocketNos. 98-50 and 98-98
StatusPublished
Cited by91 cases

This text of 84 Ohio St. 3d 520 (In re Davis) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Davis, 84 Ohio St. 3d 520 (Ohio 1999).

Opinions

Cook, J.

The issue certified to this court is “whether the seven-day limit within which a juvenile court must enter its disposition of a child adjudicated as abused, neglected or dependent under R.C. 2151.35 also applies to motions filed by an agency under R.C. 2151.414 prior to the September 1996 amendment to that statute.” We find that the seven-day limit does apply but that it is directory, not mandatory, and that either party may seek to enforce the statutory time requirement through a writ of procedendo.

I

The seven-day limit in question appears in the Revised Code section delimiting the procedure for dispositional hearings for children adjudicated abused, neglected or dependent. R.C. 2151.35(A) provides that after, a child has been so adjudicated, a juvenile court must conduct a dispositional hearing pursuant to R.C. 2151.35(B). R.C. 2151.35(B)(3) requires that after the dispositional hearing is concluded, “the court shall enter an appropriate judgment within seven days.” Revised Code sections regarding permanent custody decisions also cross-reference this time limit. R.C. 2151.413 states that when an agency such as DHS has had temporary custody for at least six months of an abused, neglected or dependent child, that agency may request permanent custody pursuant to R.C. 2151.414. Pre-amendment R.C. 2151.414(A) specified no time limit but provided [522]*522that where an R.C. 2151.413 motion for permanent custody is filed, “[t]he court shall conduct a hearing in accordance with section 2151.35.” Because R.C. 2151.35(B)(3) requires a decision within seven days following the conclusion of a dispositional hearing, judges ruling on R.C. 2151.413 permanent custody motions must meet that time limit where the motion was filed prior to the September 18, 1996 amendment to R.C. 2151.414. Thus, Judge McMaster should have issued his ruling within seven days after the date the matter was submitted to him; he took seventeen months.

II

Appellants argue that the seven-day constraint is mandatory and that the juvenile court’s failure to adhere to it deprived the court of authority (we read “authority” as indistinguishable from “jurisdiction”) to determine permanent custody. We, however, view the provision as directory rather than mandatory, leaving the juvenile court’s jurisdiction unaffected by the untimeliness of its decision.

It is true that where a statute contains the word “shall,” the provision will generally be construed as mandatory. Dorrian v. Scioto Conservancy Dist. (1971), 27 Ohio St.2d 102, 56 O.O.2d 58, 271 N.E.2d 834, paragraph one of the syllabus. “A mandatory statute may be defined as one where noncompliance * * * will render the proceedings to which it relates illegal and void.” See State ex rel. Jones v. Farrar (1946), 146 Ohio St. 467, 471-472, 32 O.O. 542, 544, 66 N.E.2d 531, 534.

But, even with “shall” as the operative verb, a statutory time provision may be directory. “As a general rule, a statute. which provides a time for the performance of an official duty will be construed as directory so far as time for performance is concerned, especially where the statute fixes the time simply for convenience or orderly procedure.” Id. at 472, 32 O.O. at 544, 66 N.E.2d at 534. This is so “unless the nature of the act to be performed or the phraseology of the statute or of other statutes relating to the same subject-matter is such that the designation of time must be considered a limitation upon the power of the officer.” State ex rel. Smith v. Barnett (1924), 109 Ohio St. 246, 255, 142 N.E. 611, 613.

The statute reviewed here fits the general Farrar rule for construing that statute as directory; it is a time restriction on the performance of an official duty. And, the language and purpose of the provision do not trigger the Barnett exception to this general rule because R.C. 2151.35 does not include any expression of intent to restrict the jurisdiction of the court for untimeliness.

Finding the provision directory makes sense from a practical standpoint as well. If we decided that the time constraint is mandatory and that juvenile [523]*523courts therefore lack jurisdiction to decide these cases from the eighth day following submission of the issue, we would defeat the very purposes the time limit was designed to protect. 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.

In light of the rule stated in Farrar and the consequences that would result otherwise, then, we conclude that the seven-day time limit set forth in R.C. 2151.35(B)(3) is directory, not mandatory, and failure to comply with it will not deprive a court of jurisdiction to decide the issue.

Ill

Although we hold that the seven-day time limit is directory rather than mandatory, such a finding does not render the provision meaningless. Where a juvenile court delays its ruling beyond the seven days • allowed by R.C. 2151.35(B)(3), the time constraint in the statute serves as justification for seeking a writ of procedendo.

A petition for a writ of procedendo “is appropriate when a court has either refused to render a judgment or has unnecessarily delayed proceeding to judgment.” State ex rel. Miley v. Parrott (1996), 77 Ohio St.3d 64, 65, 671 N.E.2d 24, 26. “ ‘[A]n inferior court’s refusal or failure to timely dispose of a pending action is the ill a writ of procedendo is designed to remedy.’ ” State ex rel. Dehler v. Sutula (1995), 74 Ohio St.3d 33, 35, 656 N.E.2d 332, 333, quoting State ex rel. Levin v. Sheffield Lake (1994), 70 Ohio St.3d 104, 110, 637 N.E.2d 319, 324. The seven-day limit set forth in R.C. 2151.35(B)(3) defines what is and is not a “timely” disposal of a permanent custody action, lending justification to any petition filed after the expiration of that period.

This court previously reached this same conclusion under similar circumstances in Linger v. Weiss (1979), 57 Ohio St.2d 97, 11 O.O.3d 281, 386 N.E.2d 1354. In that case, the juvenile court had violated two separate time requirements set forth in the Juvenile Rules. We concluded there that “[t]he proper remedy in such a case is a complaint for a writ of procedendo.” Id. at 100, 11 O.O.3d at 283, 386 N.E.2d at 1356, fn. 5. And at least one Ohio appellate district has already reached a like conclusion in a ease analogous to the current one. In In re Fleming (1991), 76 Ohio App.3d 30, 600 N.E.2d 1112, the Sixth Appellate District found that “the proper remedy in cases such as this, where a trial court fails to meet the seven-day requirement imposed by R.C.

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Cite This Page — Counsel Stack

Bluebook (online)
84 Ohio St. 3d 520, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-davis-ohio-1999.