[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
