[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 subjectmatter 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 

1

 Although 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-Ohio118, 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.