[Cite as In re C.N., 2018-Ohio-2442.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               HARDIN COUNTY



IN RE:                                                       CASE NO. 6-17-16

       C.N.
                                                             OPINION
A DELINQUENT CHILD.


IN RE:                                                       CASE NO. 6-17-23

       C.N.
                                                             OPINION
A DELINQUENT CHILD.



                 Appeal from Hardin County Common Pleas Court
                                 Juvenile Division
                           Trial Court No. JD20162158

                                        Judgments Affirmed

                              Date of Decision: June 25, 2018



APPEARANCES:

        Timothy B. Hackett for Appellant

        Jason M. Miller for Appellee
Case Nos. 6-17-16 and 6-17-23


WILLAMOWSKI, P.J.

        {¶1} Defendant-Appellant C.N. appeals the judgments of the Juvenile

Division of the Hardin County Court of Common Pleas. For the reasons set forth

below, the judgments of the juvenile court are affirmed.

                           Facts and Procedural History

        {¶2} C.N. resided with his custodial grandmother (“Young”). Doc. 1. On

December 4, 2016, C.N. stole Young’s credit cards, cell phone, and car. C.N. then

drove Young’s vehicle without a license and picked up a friend. February 22

Hearing Tr. 15. C.N. and his friend then stole another vehicle and crashed the two

stolen vehicles into each other. Id. at 15-16. These acts led to a complaint with nine

counts being filed against C.N. Doc. 1. On January 13, 2017, an attorney was

appointed to represent C.N. Doc. 8.

        {¶3} On February 22, 2017, C.N. entered an admission to two counts of

grand theft of a motor vehicle in violation of R.C. 2913.02(A)(1); two counts of

criminal damaging in violation of R.C. 2909.06(A)(1); one count of theft of credit

cards in violation of R.C. 2913.71(A); and one count of tampering with evidence in

violation of R.C. 2921.12(A)(1). Three other counts were dismissed as part of a

plea agreement. Doc. 20. At this hearing, Young was given a chance to speak and

said:

        I’m not trying to make excuses for [C.N.]. He’s had a pretty
        crappy life from the time he was born. What he did with my car,
        I never thought he could possibly do. * * * This is serious. * * * I

                                         -2-
Case Nos. 6-17-16 and 6-17-23


       don’t think CN needs to go to DYS. * * * I just think that CN
       needs help mentally, emotionally, to deal with what he’s had to
       deal with his whole life.

       ***

       And I hope he understands the seriousness of what he has done,
       not only to me, but to his brother, to all of us * * *. And I think
       he should be put in a facility where he gets counseling for
       everything that he’s done.

February 22 Hearing Tr. 22-24. In her victim impact statement, Young said that

C.N. “needs help to learn what he did is not acceptable” and that she was “hurt” by

his conduct. Doc. 25.

       {¶4} On February 22, 2017, the juvenile court placed C.N. on probation and

ordered a two-year commitment to the Department of Youth Services (“DYS”).

Doc. 24. This DYS commitment was suspended provided that he successfully

completed a rehabilitation program at the North Central Ohio Rehabilitation Center

(“NCORC”). Doc. 24. On May 26, 2017, the State filed a motion to invoke the

suspended DYS commitment. July 10 Hearing Tr. 3. Doc. 28. This motion

contained a record documenting C.N.’s involvement in fifty-eight different

incidents in between the time he was placed in NCORC on February 24, 2017, and

May 10, 2017. July 10 Hearing Tr. at 8. Doc. 28.

       {¶5} At a hearing on July 24, 2017, C.N. consented to the motion to invoke.

July 14 Hearing 4, 6. Subsequently, Young was given the opportunity to speak to

the juvenile court and said:


                                        -3-
Case Nos. 6-17-16 and 6-17-23


       I just—I don’t know what to say. * * * I can’t go to DYS. It’s
       not—I don’t know. It’s hard to see your first grandchild there. I
       just hope and pray that he does what he’s supposed to and not
       listen to other people and come home and do what he’s supposed
       to do.

July 14 Hearing Tr. 9. Young and C.N.’s appointed counsel were present for all of

the hearings during this entire process.

       {¶6} Appellant filed his notice of appeal and raises the following three

assignments of error:

                            First Assignment of Error

       The juvenile court plainly erred when it failed to appoint a
       guardian ad litem to protect minor child C.N.’s best interests in
       violation of R.C. 2151.281(A)(2) and Juv.R. 4(B)(2).

                           Second Assignment of Error

       The juvenile court violated C.N.’s right to due process of law
       when it failed to appoint a guardian ad litem, in violation of R.C.
       2151.281(A)(2) and Juv.R. 4(B)(2).         Fifth and Fourteenth
       Amendments to the U.S. Constitution; Article I, Section 16 of the
       Ohio Constitution.

                            Third Assignment of Error

       C.N. was denied the effective assistance of counsel, in violation of
       the Sixth and Fourteenth Amendments to the U.S. Constitution;
       and, Article I, Section 10 of the Ohio Constitution.

Doc. 42.

                             First Assignment of Error

       {¶7} C.N. argues that the juvenile court was required to appoint a GAL

because his custodial grandparent was the victim of his offenses. He argues that

                                           -4-
Case Nos. 6-17-16 and 6-17-23


this was a conflict of interest and that his best interest could not have been

represented without a GAL.

                                   Legal Standard

       {¶8} Under R.C. 2151.281(A)(2),

       (A) The court shall appoint a guardian ad litem, subject to rules
       adopted by the supreme court, to protect the interest of a child in
       any proceeding concerning an alleged or adjudicated delinquent
       child or unruly child when either of the following applies:

       ***

       (2) The court finds that there is a conflict of interest between the
       child and the child’s parent, guardian, or legal custodian.

R.C. 2151.281(A)(2). Similarly, Juv.R. 4(B)(2) states

       The court shall appoint a guardian ad litem to protect the
       interests of a child or incompetent adult in a juvenile court
       proceeding when:

       (2) The interests of the child and the interests of the parent may
       conflict * * *.

Juv.R. 4(B)(2). These provisions of Ohio law require a juvenile court to appoint a

GAL if a conflict of interest exists between the juvenile and his or her legal

custodian. See State v. Morgan, 2017-Ohio-7565, --- N.E.3d ---, ¶ 55.

       {¶9} If the juvenile does not object to the failure of the juvenile court to

appoint a GAL in accordance with R.C. 2151.281(A)(1), the error, on appeal, “is

subject to the criminal plain-error standard of review * * *.” Id. “The standard for

plain error is whether, but for the error, the outcome of the proceeding clearly would


                                         -5-
Case Nos. 6-17-16 and 6-17-23


have been otherwise.” State v. Taflinger, 3d Dist. Logan No. 8-17-20, 2018-Ohio-

456, ¶ 17, quoting State v. Hornbeck, 155 Ohio App.3d 571, 2003–Ohio–6897, 802

N.E.2d 184, ¶ 16 (2d Dist.). The defendant bears the burden of establishing that his

substantial rights were prejudiced. State v. Davis, 3d Dist. Seneca No. 13-16-30,

2017-Ohio 2916, ¶ 23. “[S]peculation cannot prove prejudice.” Morgan, supra, at

¶ 53. Notice of plain error is taken “only to ‘prevent a manifest miscarriage of

justice.’” Davis at ¶ 23, quoting citing State v. Long, 53 Ohio St.2d 91, 372 N.E.2d

804 (1978), at paragraph three of the syllabus.

                                   Legal Analysis

       {¶10} We begin this analysis by noting that no objection was raised below

over the juvenile court’s failure to appoint C.N. a GAL. For this reason, all but plain

error is waived on appeal. Morgan at ¶ 55. In this case, the juvenile court did

appoint counsel for C.N. Juvenile courts, at times, task attorneys with the dual

responsibility of serving as appointed counsel and as GAL. See In re Williams, 101

Ohio St.3d 398, 2004-Ohio-1500, 805 N.E.2d 1110, ¶ 18. Though the juvenile court

did not ask C.N.’s counsel to serve as a GAL in this case, C.N. has not shown how

having a GAL alongside his appointed counsel or having his attorney serve as a

GAL would have caused him to diverge from the course of action recommended by

his attorney.

       {¶11} Further, C.N.’s appointed counsel and Young were present for all

hearings. Young’s statements to the court were not adverse to C.N.’s best interests

                                         -6-
Case Nos. 6-17-16 and 6-17-23


and did not appear to have a prejudicial impact on the outcome of this proceeding.

Even if the juvenile court should have appointed a GAL in this case, C.N. has not

demonstrated how the outcome of his case would have been different had a GAL

been involved. The arguments presented on appeal to establish prejudice are

speculative. For this reason, C.N.’s first assignment of error is overruled.

                            Second Assignment of Error

       {¶12} C.N. argues that the failure of the juvenile court to appoint him a GAL

was a due process violation that deprived him of a fair proceeding.

                                   Legal Standard

       {¶13} “Due-process rights are applicable to juveniles through the Due

Process Clause of the Fourteenth Amendment to the United States Constitution and

Article I, Section 16 of the Ohio Constitution.” State v. Aalim, 150 Ohio St.3d 489,

2017-Ohio-2956, 83 N.E.3d 883, ¶ 23.           “A procedural-due-process challenge

concerns the adequacy of the procedures employed in a government action that

deprives a person of life, liberty, or property.” Ferguson v. State, 151 Ohio St.3d

265, 2017-Ohio-7844, 87 N.E.3d 1250, ¶ 42. Procedural due process requires

“fundamental fairness” in juvenile proceedings. Id. at ¶ 23, 26; Sohi v. Ohio State

Dental Bd., 130 Ohio App.3d 414, 422, 720 N.E.2d 187 (1st Dist. 1998). The Ohio

Supreme Court has “not explicitly articulated what ‘fundamental fairness’ means in

a juvenile proceeding,” but has stated that “[a] court’s task is to ascertain what

process is due in a given case, * * * while being true to the core concept of due

                                         -7-
Case Nos. 6-17-16 and 6-17-23


process in a juvenile case—to ensure orderliness and fairness.” Aalim at ¶ 23,

quoting McKeiver v. Pennsylvania, 403 U.S. 528, 541, 91 S.Ct. 1976, 29 L.Ed.2d

647 (1971) (plurality opinion).

                                   Legal Analysis

       {¶14} In the first assignment of error, we found that, even if the juvenile

court’s failure to appoint a GAL was an error, this error did not prejudice C.N. and

did not affect the outcome of this judicial process. Similarly, in this assignment of

error, we find that even if the juvenile court’s failure to appoint a GAL was an error,

this error did not prejudice C.N. in this particular case and did not affect the

fundamental fairness of these proceedings. Since C.N. has not shown how the

absence of a GAL in this particular proceeding deprived him of the fundamental

fairness that procedural due process requires, his second assignment of error is

overruled. See Aalim at ¶ 27.

                             Third Assignment of Error

       {¶15} C.N. argues that he was denied the effective assistance of counsel as

his attorney failed to object over the juvenile court’s failure to appoint him a GAL.

                                   Legal Standard

       {¶16} In order to prove an ineffective assistance of counsel claim, the

appellant must carry the burden of establishing (1) that his or her counsel’s

performance was deficient and (2) that this deficient performance prejudiced the

defendant. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80

                                         -8-
Case Nos. 6-17-16 and 6-17-23


L.Ed.2d 674, 693 (1984). If the petitioner cannot prove one of these elements, “it

[is] unnecessary for a court to consider the other prong of the test.” State v. Walker,

2016-Ohio-3499, 66 N.E.3d 349, ¶ 20 (3d Dist.).

       {¶17} “To show prejudice, the defendant must show a reasonable probability

that, but for counsel’s errors, the result of the proceeding would have been

different.” Conway at ¶ 95. “The failure to make objections alone is not enough to

sustain a claim of ineffective assistance of counsel.” State v. Conway, 108 Ohio

St.3d 214, 2006-Ohio-791, 842 N.E.2d 996, ¶ 168. Appellate courts are to examine

the record to determine whether the defendant had a fair proceeding under the

circumstances and whether substantial justice was done. State v. Hester, 45 Ohio

St.2d 71, 341 N.E.2d 304 (1976), paragraph four of the syllabus.

                                   Legal Analysis

       {¶18} In his first assignment of error, C.N. was unable to carry the burden of

establishing that the outcome of this process would have been different had the

juvenile court appointed him a GAL. If the juvenile court’s alleged error did not

prejudice C.N., then the failure of C.N.’s counsel to raise an objection over the

juvenile court’s alleged error did not prejudice C.N. Thus, C.N. was not denied the

effective assistance of counsel.     His third assignment of error is, therefore,

overruled.




                                         -9-
Case Nos. 6-17-16 and 6-17-23


                                   Conclusion

       {¶19} Having found no error prejudicial to the appellant in the particulars

assigned and argued, the judgments of Juvenile Division of the Hardin County Court

of Common Pleas are affirmed.

                                                             Judgments Affirmed

ZIMMERMAN and SHAW, J.J., concur.

/hls




                                       -10-
