In re D.W. , 2019 Ohio 5259 ( 2019 )

[Cite as In re D.W., 2019-Ohio-5259.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
In the Matter of: :
[D.W., A Delinquent Minor, : No. 19AP-221
(C.P.C. No. 15JU-14385)
:
Appellant]. (ACCELERATED CALENDAR)
:
D E C I S I O N
Rendered on December 19, 2019
On brief: Victoria E. Ullmann, for appellant.
On brief: Ron O'Brien, Prosecuting Attorney, and Barbara
A. Farnbacher, for appellee.
APPEAL from the Franklin County Court of Common Pleas,
Division of Domestic Relations, Juvenile Branch
BEATTY BLUNT, J.
{¶ 1} D.W., an adjudicated delinquent minor, appeals the order of the Franklin
County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch,
approving and adopting a magistrate's decision committing him to a 90-day placement at
the Central Ohio Youth Center ("COYC") after finding he had committed a violation of the
terms of his probation.
{¶ 2} On November 26, 2015, D.W. entered an admission and was adjudicated
delinquent for the offense of burglary. He was placed on probation on February 17, 2016.
He was first found to have violated his probation by continuing to test positive for
marijuana on November 8, 2016. He was then found to have violated both his probation
by being suspended from school and absconding on March 2, 2017, and placed on electronic
monitoring. D.W. was suspended from school and absconded a second time on May 3,
2017, and was again found to have violated his probation on May 25, 2017. As a result, he
was removed from his mother's home on June 8, 2017, and placed at Maryhaven. On
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August 1, 2017, he absconded from Maryhaven, and on August 31, 2017, determined to have
violated his probation a fourth time.
{¶ 3} D.W.'s probation was extended, and he was placed in the temporary court
custody of Franklin County Children Services ("FCCS") and admitted to the Abraxas Ohio
residential treatment program. He absconded from Abraxas that same day, but was
recovered and he returned to participate in the program. On April 10, 2018, FCCS and the
National Youth Advocate Program filed a motion to terminate temporary court custody and
return D.W. to the custody of his mother with a court-ordered protective supervision order,
"as the youth is set to successfully discharge" from Abraxas, and would then link with
Abraxas aftercare services. The magistrate granted the motion on May 10, 2018, and D.W.
was returned to his mother's home.
{¶ 4} But on September 14, 2018, he violated probation by absconding yet another
time: "[D.W.] is truant from home and has been for over [a] week. His whereabouts are
currently unknown. He also has not attended school in a week." (Sept. 14, 2018 Mot. For
Violation of Probation.) And as a result of his decision to go absent without leave
("AWOL"), D.W. did not complete the ordered Abraxas aftercare. After nearly three
months D.W. turned himself in and admitted the probation violation. Prior to entering an
admission, the magistrate cautioned D.W. that he could be held, fined, or committed to the
Department of Youth Services ("DYS") as a sanction. The resources team suggested that he
be referred to COYC to complete a 90-day intensive program, and the magistrate continued
the case so that the referral could be explored. D.W. was subsequently accepted into the
COYC program, and following a hearing on December 18, 2018, a different magistrate
ordered that D.W.'s probation should be extended an additional 12 months, and indicated
that he would be transferred to COYC by January 8, 2019. D.W.'s attorney filed objections
to that dispositional decision, arguing in part that it was inappropriate and against the
weight of the evidence to impose commitment to COYC. D.W. was transported to COYC on
January 8, 2019, and on that same date the magistrate filed a decision supplementing its
earlier decision. D.W's attorney objected to that decision as well, arguing the magistrate
had inappropriately browbeaten and berated counsel at the December 18 violation hearing,
that the transfer was improper, and also that COYC was not an appropriate disposition
because it was for chronic offenders.
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{¶ 5} On March 14, 2019, the trial court overruled both sets of objections,
concluding that the record does not support that "[the] Magistrate acted inappropriately
[towards counsel]" and that while transfer of D.W. to COYC may have been premature and
should have been stayed while his objections were pending, his "ultimate transfer to COYC
was appropriate [and] supported by the record." (Decision at 10.) The court adopted the
magistrate's decisions filed December 21, 2018 and January 8, 2019 "with the
aforementioned findings and changes herein." This timely appeal followed.
{¶ 6} D.W. now asserts three assignments of error: first, that the trial court abused
its discretion in acting punitively toward this youth by confining him in COYC when he
posed no threat to the community; second, that the trial court erred in failing to consider
additional material regarding the magistrate's improper attacks on counsel; and third, that
the trial court erred in finding that the magistrate could send this youth to COYC without a
dispositional order. In response, the state argues that the magistrate and judge considered
all material presented and that the decision to commit D.W. to COYC was within the court's
discretion.
{¶ 7} R.C. 2152.19(A) provides that "[i]f a child is adjudicated a delinquent child,
the court may * * * [p]lace the child in a detention facility or district detention facility
operated under section 2152.41 of the Revised Code, for up to ninety days," or may "[p]lace
the child on community control under any sanctions, services, and conditions that the court
prescribes." R.C. 2152.19(A)(3) and (4). R.C. 2152.19(A)(8) further provides that the court
may "[m]ake any further disposition that the court finds proper, except that the child shall
not be placed in a * * * place in which an adult convicted of a crime, under arrest, or charged
with a crime is held." Juvenile dispositions must be "reasonably calculated to achieve the
overriding purposes [of R.C. Chapter 2152]," which are "to provide for the care, protection,
and mental and physical development of children subject to this chapter, protect the public
interest and safety, hold the offender accountable for the offender's actions, restore the
victim, and rehabilitate the offender." R.C. 2152.01(A) and (B). While a juvenile court must
consider those purposes, it has "broad discretion to craft an appropriate disposition for a
child adjudicated delinquent * * * [and the] court's disposition will be upheld unless there
has been an abuse of discretion." In re D.S., 111 Ohio St. 3d 361, 2006-Ohio-5851, ¶ 6.
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{¶ 8} For convenience of analysis, we will address D.W.'s assignments of error out
of order. In his second assignment of error, D.W. asserts his counsel was mistreated by the
magistrate at the December 18, 2018 dispositional hearing, and that the trial court failed to
consider evidence of this mistreatment at the objections hearing. But the record before this
court does not demonstrate any mistreatment of counsel at the dispositional hearing, and
D.W.'s counsel did not supplement the record at either the objections hearing or in this
court with a transcript or any other specific evidence of mistreatment. As the trial court
recognized in overruling D.W.'s objection to the magistrate's conduct, "[c]ounsel alludes to
[the magistrate's] actions after the hearing but provides no evidence in relation to any post-
disposition conversations." (Decision at 8.) At oral argument in this court, counsel stated
that the magistrate had "yelled" at her, but admitted that there was nothing in the transcript
of the hearing to establish that. Given the lack of any record evidence of misconduct by the
magistrate, we must presume the regularity of the proceedings of the trial court. See, e.g.,
Ostrander v. Parker-Fallis Insulation Co., 29 Ohio St. 2d 72, 74 (1972), cited in In re Fraley,
10th Dist. No. 85AP-681 (Apr. 3, 1986), (applying presumption of regularity to delinquency
proceedings). Accordingly, D.W.'s second assignment of error is overruled.
{¶ 9} D.W.'s two remaining assignments of error are related; the first assignment
of error essentially argues that the magistrate's decision to send D.W. to COYC was against
the weight of the evidence, and the third assignment of error argues that the magistrate's
order which committed D.W. to COYC was invalid because objections had not yet been
ruled upon. Addressing these same questions, the trial court concluded that while the
commitment to COYC was premature and should have been stayed pending a ruling on the
objections, it ultimately found that the order transferring D.W. to COYC was appropriate
and supported by the record. We believe the trial court's analysis of these issues was
correct.
{¶ 10} D.W.'s extensive history of probation violations, his unsuccessful completion
of Abraxas aftercare, the negative reports of his probation officer, and D.W.'s overall
resistance to program participation clearly support continued court intervention, and
provide a firm basis for both the decision to accept D.W.'s admission to the probation
violation and the subsequent disposition for that violation. And the fact that D.W. stayed
AWOL for over 2 months after absconding and failed to complete his aftercare demonstrate
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that the trial court's observations that D.W. "is continuing with the same behaviors" and
that he "has not learned anything" from all the treatment he has received are accurate.
(Decision at 11-12.)
{¶ 11} Given the seriousness of D.W.'s original offense, commitment to DYS custody
has always been an available disposition. R.C. 2152.16(A)(1)(e) (authorizing commitment
to DYS "for an indefinite term consisting of a minimum period of six months and a
maximum period not to exceed the child's attainment of twenty-one years of age" for an act
that would be a felony of the fifth degree if committed by an adult). Because D.W. has
chronically violated the terms of his probation and because he had shown little evidence of
accountability and rehabilitation, the trial court was within its broad discretion to impose
the lesser disposition of a 90-day commitment to a juvenile detention facility. See R.C.
2152.19(A)(3) and In re D.B., 12th Dist. No. CA2005-12-524, 2006-Ohio-3240, ¶ 11
(upholding 30-day commitment to detention center as within court's discretion).
{¶ 12} It was similarly within the trial court's discretion to conclude that the
commitment during the pendency of objections, while erroneous, was harmless to D.W.
The trial court held that the magistrate's order filed December 18, 2018, which directed the
transfer of D.W. to COYC, was not an interim order that authorized immediate relief under
Juv.R. 40(D)(4)(e)(ii), because it did not specifically state that immediate relief was
required. But that order, along with the transcript of the December 18, 2018, hearing,
clearly stated that he was to be transferred to COYC on January 8, 2019. It is true that
under Juv.R. 40(D)(4)(e)(i), the filing of objections should have operated as an automatic
stay of that transfer, and the trial court correctly held that the transfer should have been
stayed. But the trial court was correct in concluding that while the transfer to COYC should
not have occurred prior to its ruling on the objections, "[t]here is no remedy for the
premature transfer except to credit the youth for the time already participated in the 90-
day program. * * * * In light of the procedural mistake and preemptive transfer, his services
will now conclude sooner based on time already participated." (Decision at 12.) And in
fact, those services have concluded—as his brief acknowledges, D.W. "is now out of COYC
and is at home with his mother." (Appellant's Brief at 8.) Accordingly, because the trial
court properly held that the commitment was supported by the evidence and statutorily
authorized, and because that commitment was not an abuse of discretion, the fact that
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commitment occurred earlier than it should have is both an error that cannot be remedied
and one that did not injure D.W. in any way. See, e.g., In re C.S., 10th Dist. No. 11AP-667,
2012-Ohio-2988, ¶¶ 21-22 (applying harmless-error analysis). D.W.'s first and third
assignments of error are therefore overruled.
{¶ 13} For all these reasons, D.W.'s three assignments of error are overruled, and
the judgment of the Franklin County Court of Common Pleas, Division of Domestic
Relations, Juvenile Branch, is affirmed.
Judgment affirmed.
SADLER and DORRIAN, JJ., concur.