In re B.G.

[Cite as In re B.G., 2011-Ohio-5898.]
COURT OF APPEALS
ASHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
IN RE: B.G., : Hon. W. Scott Gwin, P.J.
A MINOR CHILD. : Hon. Julie A. Edwards, J.
: Hon. Patricia A. Delaney, J.
:
:
: Case No. 2011-COA-012
:
:
: OPINION
CHARACTER OF PROCEEDING: Civil appeal from the Ashland County Court
of Common Pleas, Juvenile Division, Case
No. 20102163
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: November 10, 2011
APPEARANCES:
For Appellee For Appellant
RAMONA F. ROGERS AMANDA J. POWELL
Ashland County Prosecutor Assistant State Public Defender
110 Cottage Street 250 E. Broad St., Ste 1400
Ashland, OH 44805 Columbus, OH 43215
[Cite as In re B.G., 2011-Ohio-5898.]
Gwin, P.J.
{¶ 1} Appellant B.G., a minor child, appeals a judgment of the Court of Common
Pleas, Juvenile Division, of Ashland County, Ohio, which found he is a delinquent child
by reason of having committed two acts of rape, which would be felonies if committed
by an adult. The court classified B.G. as a juvenile offender registrant with a duty to
comply with RC. 2905.04, 2905.041, 2950.05, and 2950.06. The court also classified
appellant a Tier III sex offender subject to community notification. Appellant assigns
four errors to the trial court:
{¶ 2} “I. THE JUVENILE COURT VIOLATED B.G.’S RIGHTS TO DUE PROCESS
AND EQUAL PROTECTION WHEN IT CLASSIFIED HIM AS A JUVENILE SEX
OFFENDER REGISTRANT WITHOUT PROVIDING HIM THE OPPORTUNITY FOR
ALLOCUTION, IN VIOLATION OF THE FIFTH AND FOURTEENTH AMENDMENTS
TO THE UNITED STATES CONSTITUTION, ARTICLE I, SECTIONS 2 AND 16 OF
THE OHIO CONSTITUTIION, CRIM. R. 32, JUV. R. 29, AND JUV. R. 34.
{¶ 3} “II. THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT FAILED TO
APPOINT A GUARDIAN AD LITEM FOR B.G. IN VIOLATION OF OHIO REVISED
CODE SECTION 2151.281 (A) AND JUVENILE RULE 4 (B).
{¶ 4} “III. THE TRIAL COURT ERRED WHEN IT CLASSIFIED B.G. AS A
JUVENILE OFFENDER REGISTRANT BECAUSE IT DID NOT MAKE THAT
DETERMINATION UPON HIS RELEASE FROM A SECURE FACILITY, IN VIOLATION
OF R.C. 2152.83 (B)(1).
{¶ 5} “IV. THE TRIAL COURT ERRED WHEN IT ORDERED B.G. TO BE
SUBJECT TO COMMUNITY NOTIFICATION.”
Ashland County, Case No. 2011-COA-012 3
{¶ 6} The record indicates B.G. was fourteen years old at the time of the offenses.
The original complaint alleged he was a delinquent child for three counts of rape, but on
October 5, 2010, the court accepted his admission of true to two of the charges, and
dismissed the third. The victims in the case were B.G.’s eight year old sister and two
cousins, aged six and two.
{¶ 7} As early as the shelter care hearing, the court addressed appellant’s
grandparents and ordered them to have no contact between appellant or with any of the
victims. The court indicated they were to have no children residing in their home and if
the court found out there were children in the home, the Department of Job and Family
Services would immediately take action.
{¶ 8} At the detention hearing on July 2, 2010, the State advised the court
appellant had been in the custody of his grandparents, who had been aware of the
abuse, but did very little to prevent it. The State argued the grandparents facilitated the
abuse by telling the victim not to tell anyone what had happened. The court directed
B.G. to have no contact either directly or indirectly with any of the alleged victims in the
case. The court also directed he was not to have any contact with the grandparents.
{¶ 9} Subsequently, at the disposition hearing, the State elaborated on appellant’s
family background. The State alleged B.G.’s father, uncle, and possibly another family
member had been charged with sex offenses. The prosecutor indicated appellant’s
father had been accused of sexual offenses committed against B.G.’s two older sisters,
and it would not be a surprise to learn appellant had also been victimized.
{¶ 10} Officer Kim Mager of the Ashland County Police Department testified the
grandparents had caught appellant in the act repeatedly, and failed to contact Children’s
Ashland County, Case No. 2011-COA-012 4
Protective Services, the police, or any other party. The officer indicated the
grandparents had scolded appellant and threatened that he would end up in jail like his
father. However, they permitted appellant to continue to be around the victims.
II.
{¶ 11} In appellant’s second assignment of error, he argues the trial court should
have appointed a guardian ad litem for him. We agree.
{¶ 12} Our standard of reviewing the court’s decision whether to appoint a
guardian ad litem is the abuse of discretion standard. In Re: Sappington (1997), 123
Ohio App. 3d 448, 454, 704 N.E.2d 339. The Supreme Court has repeatedly defined
the term “abuse of discretion” as implying the court’s attitude is unreasonable, arbitrary,
or unconscionable. See, e.g., Blakemore v. Blakemore (1983), 5 Ohio St. 3d 217, 219,
450 N.E.2d 1140.
{¶ 13} R.C. 2151.281 and Juv. R. 4 both deal with the appointment of a guardian
ad litem. R.C. 2151.281 (A) provides the court shall appoint a guardian ad litem to
protect the interest of a child in any proceeding concerning an alleged or adjudicated
delinquent child when the court finds that there is a conflict between the child and the
child’s parent, guardian or legal custodian.
{¶ 14} Juv. R. 4 (B) provides: “the court shall appoint a guardian ad litem to
protect the interest of the child or incompetent adult in the juvenile court proceeding
when: *** (2) the interest of the child and the interest of the parent may conflict***”
{¶ 15} Juv. R. 4 therefore requires the appointment of a guardian ad litem where
there is a possibility of conflict, while the statute requires appointment only if the court
finds there is an actual conflict of interest. Sappington, supra, at 453. The relevant
Ashland County, Case No. 2011-COA-012 5
question on appeal is whether the record reveals an actual or potential conflict of
interest which required the appointment of a guardian ad litem. Id.
{¶ 16} In Sappington, supra, the seventeen year old child was accused of
domestic violence against his mother, and his father accompanied him to the hearing.
When the child expressed an interest in speaking with an attorney, the father, in open
court, persuaded him it was unnecessary. The court of appeals found although the
magistrate had not made a finding there was a potential or actual conflict of interest, it
was implicit in the facts and circumstances of the case. In the case at bar, the court did
not find a potential or actual conflict, but found it necessary to enter a no-contact order
with appellant’s legal custodians. The evidence before the court was that the
grandparents had not taken action to prevent the abuse and had not attempted to get
assistance to deal with the situation.
{¶ 17} The State cites us to In Re: Becera, Eighth App. No. 79715, 2002-Ohio-
678, where the parent was a victim in a domestic violence case. The court there found
the pertinent question was whether the parent was acting in a parental role sufficient to
protect the juvenile’s rights. The court found it was significant that the child was
represented by counsel. The court noted a guardian ad litem would not necessarily
have made the recommendations the child wanted, if the guardian found those
recommendations were not in the child’s best interest. The court concluded no guardian
ad litem was required to protect the child’s interests.
{¶ 18} R.C. 2151.281 (H), and Juv. R. 4 (C) permit an attorney to serve both as
counsel and as guardian ad litem for a child in a juvenile court proceeding, provided the
Ashland County, Case No. 2011-COA-012 6
court makes an explicit dual appointment and no conflicts arise in the dual
representation. Here, the court did not order dual representation.
{¶ 19} The Supreme Court has recognized the roles of guardian ad litem and of
attorney are not always compatible, because they serve different functions. The role of
a guardian ad litem is to investigate the juvenile’s situation and to ask the court to do
what the guardian determines to be in the child’s best interest. The role of the attorney
is to zealously represent the client within the bounds of law. In re: Baby Girl Baxter
(1985), 17 Ohio St. 3d 229, 479 N.E.2d 257.
{¶ 20} Here, the court felt the custodial grandparents were so unsuitable that it
entered a no-contact order, which in effect prevented them from taking any steps to
protect the rights of appellant and of all three victims. The court clearly found they had
nothing positive to offer any of the children. The record does not show any other adult
coming forward to fill the role of parent or guardian ad litem. This fourteen year old boy
pled true to very serious charges with only his counsel to advise him.
{¶ 21} We find the trial court erred in not appointing a guardian ad litem for
appellant. The second assignment of error is sustained.
III. & IV.
{¶ 22} In his third assignment of error, appellant argues the court erred in
classifying him as a juvenile offender registrant because it could only do so upon his
release from a secure facility. In his fourth assignment, he argues the court erred in
finding him to be subject to community notification.
{¶ 23} R.C. 2152.83 controls the classification of a child as a juvenile offender
registrant. Section (A) applies to children sixteen or seventeen years of age at the time
Ashland County, Case No. 2011-COA-012 7
of the offense. It provides “the court that adjudicates a child as a delinquent child shall
issue as part of the dispositional order or, if the court commits the child *** to the
custody of a secure facility, shall issue at the time of the child’s release from a secure
facility in order that classifies the child a juvenile offender registrant.***” (emphasis
added.)
{¶ 24} This language has been construed to mean if the court commits the child
to the Ohio Department of Youth Services, it must wait until the child is released to
make the classification. See, e.g., In Re: J.B., Morrow App. No. 2011-CA-0002, 2011-
Ohio-4530; In the Matter of: P.B., Scioto App. No. 07-CA-3140, 2007-Ohio-3937.
{¶ 25} However, the statute treats a fourteen or fifteen year old child
differently. Under those circumstances, the statute provides:
{¶ 26} ”(B)(1) The court that adjudicates a child a delinquent child, on the judge's
own motion, may conduct at the time of disposition of the child or, if the court commits
the child for the delinquent act to the custody of a secure facility, may conduct at the
time of the child's release from the secure facility a hearing for the purposes described
in division (B)(2) of this section if all of the following apply:
{¶ 27} “(a) The act for which the child is adjudicated a delinquent child is a
sexually oriented offense or a child-victim oriented offense that the child committed on
or after January 1, 2002.
{¶ 28} “(b) The child was fourteen or fifteen years of age at the time of
committing the offense.
{¶ 29} “(c) The court was not required to classify the child a juvenile offender
registrant under section 2152.82 of the Revised Code or as both a juvenile offender
Ashland County, Case No. 2011-COA-012 8
registrant and a public registry-qualified juvenile offender registrant under section
2152.86 of the Revised Code.” (emphasis added).
{¶ 30} R.C. 2152.82 deals with juvenile offenders with prior sexual offenses and
R.C. 2152.86 refers to children found to be serious youthful offenders. Neither section
applies to appellant.
{¶ 31} R.C. 2152.83 (B) has been construed as permitting the court to
choose when to classify the child, that is, either at the time of disposition or the time of
the child’s release. In the Matter of P.B., supra.
{¶ 32} We find this is not what the Legislature intended. The statute
should be construed as permitting the court to classify the child at disposition unless the
child is sent to a secure facility, in which case it may classify the child upon release. The
use of the word “may” indicates the court has discretion to decide whether, not when, to
classify the child. The court may determine no hearing is necessary, or may hold a
hearing but decline to classify the child, based upon the individual circumstances of the
case.
{¶ 33} This interpretation of the statute is supported by the subsequent
section. Subsection (B)(2) provides:
{¶ 34} “(2) A judge shall conduct a hearing under division (B)(1) of this
section to review the effectiveness of the disposition made of the child and of any
treatment provided for the child placed in a secure setting and to determine whether the
child should be classified a juvenile offender registrant. The judge may conduct the
hearing on the judge's own initiative or based upon a recommendation of an officer or
employee of the department of youth services, a probation officer, an employee of the
Ashland County, Case No. 2011-COA-012 9
court, or a prosecutor or law enforcement officer. If the judge conducts the hearing,
upon completion of the hearing, the judge, in the judge's discretion and after
consideration of the factors listed in division (E) of this section, shall do either of the
following:
{¶ 35} “(a) Decline to issue an order that classifies the child a juvenile
offender registrant and specifies that the child has a duty to comply with sections
2950.04, 2950.041, 2950.05, and 2950.06 of the Revised Code;
{¶ 36} “(b) Issue an order that classifies the child a juvenile offender registrant
and specifies that the child has a duty to comply with sections 2950.04, 2950.041,
2950.05, and 2950.06 of the Revised Code and that states the determination that the
judge makes at the hearing held pursuant to section 2152.831 of the Revised Code as
to whether the child is a tier I sex offender/child-victim offender, a tier II sex
offender/child-victim offender, or a tier III sex offender/child-victim offender.”
{¶ 37} This language supports the interpretation that the Legislature intended for
the court to classify the child only after determining whether the disposition and
treatment provided for the child in a secure setting was effective. The statute does not
require the court to classify the child as any type of juvenile offender registrant. Thus,
we find the use of the word “may” does not indicate the court has discretion regarding
when to classify the child. Instead, the word “may” indicates the court has discretion to
determine whether the child should be classified.
{¶ 38} The timing of the classification is the same for either sixteen and
seventeen years old pursuant to R.C. 2152.83 (A) and for fourteen and fifteen years old
under (B): at disposition, unless the child is referred to a secure facility, in which case
Ashland County, Case No. 2011-COA-012 10
the court must wait until the child has completed his or her stay in the secure facility to
determine whether treatment received there was effective.
{¶ 39} To hold otherwise would mean that children sixteen or seventeen years of
age will not be classified until they have completed whatever programs DYS considers
appropriate while they are in the secure facility, but a younger child could be determined
to be a juvenile offender prior to receiving the benefit of whatever programs are
available and appropriate in the secure setting.
{¶ 40} Our reading of the statute is also more in accord with the purpose and
goals of the juvenile justice system. In the case of In the matter of W.Z., Sandusky App.
No. S-09-036, 2011-Ohio-3238, the Court of Appeals for the Sixth District succinctly
summarized:
{¶ 41} “*** [J]uvenile proceedings are ‘civil’ rather than criminal and, in theory, the
priority of the juvenile system has been rehabilitation, rather than punishment. Society
generally refuses to penalize youth offenders as harshly or to hold them to the same
level of culpability as adults, who are older and, presumably, wiser and more mature. ***
In addition, an essential tenet of the juvenile system has been to maintain the privacy of
the youthful offender. Although juveniles may be denied certain procedural rights
afforded to adult criminal defendants, such as public indictment or trial by jury, they are
protected from the publicity and stigma of criminal prosecution.” Id. at paragraphs 23-
24, citations deleted. We find a court should give a child all possible benefit of
rehabilitation and treatment before deciding to order him or her to comply with the
registration and community notification similar to that required of adult offenders.
Ashland County, Case No. 2011-COA-012 11
{¶ 42} We find the trial court’s classification of appellant as a juvenile offender
registrant subject to community notification was premature, and it should make the
determination, if at all, after appellant is released from DYS custody.
{¶ 43} The third and fourth assignments of error are sustained.
I.
{¶ 44} In his first assignment of error, appellant urges the court failed to provide
him with the opportunity for allocution at the classification hearing. The statute does not
address this issue.
{¶ 45} Because we find the court should have delayed the classification hearing
until after appellant’s release from DYS custody, we find the issue is premature.
{¶ 46} For the foregoing reasons, the judgment of the Court of Common Pleas,
Juvenile Division, of Ashland County, Ohio, is reversed, and the cause is remanded to
the court for further proceedings in accord with law and consistent with this opinion.
Edwards, and Delaney, JJ., concur.
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. JULIE A. EDWARDS
_________________________________
HON. PATRICIA A. DELANEY
[Cite as In re B.G., 2011-Ohio-5898.]
IN THE COURT OF APPEALS FOR ASHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN RE: B.G. :
:
:
:
:
: JUDGMENT ENTRY
:
:
:
: CASE NO. 2011-COA-012
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of
the Court of Common Pleas, Juvenile Division, of Ashland County, Ohio, is reversed,
and the cause is remanded to the court for further proceedings in accord with law and
consistent with this opinion. Costs to appellee.
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. JULIE A. EDWARDS
_________________________________
HON. PATRICIA A. DELANEY