[Cite as In re A.R.R., 2014-Ohio-3367.]

                                   IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                          LAKE COUNTY, OHIO


IN THE MATTER OF:                                  :      OPINION
A.R.R., DELINQUENT CHILD
                                                   :

                                                   :      CASE NO. 2013-L-054




Appeal from the Lake County Court of Common Pleas, Juvenile Division, Case No.
2012 DL 00914.

Judgment: Reversed and remanded.


Charles E. Coulson, Lake County Prosecutor, and Teri R. Daniel, Assistant Prosecutor,
Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH
44077 (For Appellee).

Timothy Young, Ohio Public Defender, and Charlyn Bohland, Assistant Public
Defender, 250 East Broad Street, Suite 1400, Columbus, OH 43215-9308 (For
Appellant).



THOMAS R. WRIGHT, J.

        {¶1}     This appeal is from the Lake County Court of Common Pleas, Juvenile

 Division. Appellant A.R.R. was found delinquent of four counts of rape in violation of

 R.C. 2907.02(A)(1)(b), all first degree felonies if committed by an adult. On appeal,

 A.R.R. claims the trial court failed to record the competency hearing of the eight year-

 old victim, and therefore the judgment must be reversed and remanded. The state

 agrees. For the following reasons, we reverse and remand.

        {¶2}     On May 30, 2012, a Lake County Juvenile Court complaint alleged A.R.R.

 to be a delinquent child for committing four counts of rape and one count of gross
sexual imposition. The state later amended the complaint to add an additional count of

rape. Seeking the testimony of the victim, who was under the age of 10, the state

moved to determine her competency in accordance with R.C. 2317.01. The interview

was conducted in chambers with counsel present. The parties agree that this interview

was not recorded.

      {¶3}   The trial court found A.R.R. delinquent of four counts of rape. A.R.R. was

ordered to serve 90 days in a detention center for each offense, to be served

consecutively, and a suspended commitment of one year in the Ohio Department of

Youth Services for each offense, to be served consecutively.

      {¶4}   As his first assignment of error, A.R.R. claims:

      {¶5}   “The juvenile court committed reversible error when it failed to properly

record its proceedings, in violation of Juv.R. 37(A); the Fourteenth Amendment to the

United States Constitution; and, Article I, Section 10 and 16, Ohio Constitution.”

      {¶6}   Juv.R. 37(A) states that “[t]he juvenile court shall make a record of

adjudicatory and dispositional proceedings in abuse, neglect, dependent, unruly, and

delinquent cases; permanent custody cases; and proceedings before magistrates.”

However, when a recording is not made, an appellant must attempt to remedy the

Juv.R. 37(A) failure by submitting an App.R. 9(C) statement. Failure to do so will result

in the issue being waived. State v. Keenan, 81 Ohio St.3d 133, 139 (1998). “[W]hen a

juvenile court fails to comply with the recording requirements of Juv.R. 37(A) and an

appellant attempts but is unable to submit an App.R. 9(C) statement to correct or

supplement the record, the matter must be [reversed and] remanded to the juvenile

court for a rehearing.” In re B.E., 102 Ohio St.3d 388, 2004-Ohio-3361, ¶16.

      {¶7}   Juv.R. 37(A) requires the recording of delinquency cases in their entirety

which, in this case, includes competency hearings. In McGuire v. George, 4th Dist.
                                            2
Gallia No. 90 CA 23, 1991 Ohio App. LEXIS 3234, at *15 (July 3, 1991), the court was

faced with the identical issue of whether the failure to record a competency hearing

violated Juv.R. 37(A).    Although the court ultimately decided appellant waived the

matter by not submitting an App.R. 9(C) statement, this suggests that absent waiver,

the court would have reversed the case. Similarly, the Twelfth District found a trial

court violated Juv.R. 37(A) by failing to record an in-camera interview with a child in a

dependency case. In re J.M., 12th Dist. Clermont No. CA2006-11-096, 2007-Ohio-

4219, ¶40. Although the Twelfth District ultimately concluded the trial court cured the

error by holding a subsequently recorded hearing, the decision implies that absent the

second hearing, reversible error was present. Id. ¶40-41.

      {¶8}   In our case, the trial court conducted an unrecorded in-chambers interview

with the victim in the presence of counsel. Therefore, the trial court failed to comply

with Juv.R. 37(A). A.R.R. attempted to remedy the situation by submitting affidavits

from those present to reconstruct the hearing. However, no one could recall what

happened at the hearing with sufficient particularity to provide an adequate record for

meaningful appellate review.

      {¶9}   The first assignment of error has merit. In light of the resolution of the first

assignment of error, the remaining assignments of error are moot. App.R. 12. The trial

court’s judgment is reversed and remanded for further proceedings consistent with this

opinion.



DIANE V. GRENDELL, J.,

CYNTHIA WESTCOTT RICE, J.,

concur.



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