[Cite as In re C.W., 2010-Ohio-5633.]


                             IN THE COURT OF APPEALS OF OHIO
                                FOURTH APPELLATE DISTRICT
                                      ADAMS COUNTY

IN THE MATTER OF:                                 :      Case No. 10CA892
                                                  :
C.W.                                              :      DECISION AND
                                                  :      JUDGMENT ENTRY
ADJUDICATED DELINQUENT CHILD.                     :
                                           Released 11/5/10
______________________________________________________________________
                            APPEARANCES:

Timothy Young, OHIO STATE PUBLIC DEFENDER, and Amanda J. Powell, OHIO
STATE ASSISTANT PUBLIC DEFENDER, Columbus, Ohio, for appellant.

Aaron E. Haslam, ADAMS COUNTY PROSECUTOR, and Barbara Moore-Eiterman,
ADAMS COUNTY ASSISTANT PROSECUTOR, West Union, Ohio, for appellee.
______________________________________________________________________
Harsha, J.

        {¶1}    After C.W. entered an admission to two counts of rape, the Adams County

Common Pleas Court, Juvenile Division adjudicated him a delinquent child and

committed him to the custody of the Ohio Department of Youth Services (“DYS”). Upon

his release from DYS custody, the court classified C.W. as a Tier III juvenile sex

offender. C.W. now appeals that decision.

        {¶2}    C.W. contends that the trial court erred under Juv.R. 4(B) by not

appointing him a guardian ad litem to protect his interests at the classification hearing

because he had no parent, guardian, or legal custodian to do so. We agree. C.W.

qualified as a “child” within the meaning of the rule and the hearing constituted a

“juvenile court proceeding.” Even if C.W. had a parent, guardian, or legal custodian (at

the time of the hearing), that person was never notified of the hearing and thus did not

appear to protect C.W.’s interests. Therefore, the court should have appointed a

guardian ad litem. Accordingly, we reverse the judgment classifying C.W. as a Tier III
Adams App. No. 10CA892                                                                     2


juvenile sex offender and remand this matter to the juvenile court.

       {¶3}   This decision renders moot C.W.’s additional claims that 1.) R.C.

2151.281(A) also required appointment of a guardian ad litem; 2.) the juvenile court

made various errors in its classification judgment entry; 3.) the juvenile court did not

address certain mandatory factors or consider certain evidence when it classified him;

4.) counsel rendered ineffective assistance at the classification hearing; 5.) his

classification under Senate Bill 10 violated his right to equal protection under the law as

guaranteed by the United States and Ohio Constitutions; 6.) the retroactive application

of Senate Bill 10 to him violated the Ex Post Facto Clause of the United States

Constitution and the Retroactivity Clause of the Ohio Constitution.

                                          I. Facts

       {¶4}   In 2005, the Adams County Sheriff’s Office filed complaints against C.W.,

then age 14, in case numbers 20052003 and 20052004, which have been consolidated

for purposes of this appeal. The complaints alleged that C.W. committed two counts of

rape and two counts of gross sexual imposition. C.W. entered an admission to both

counts of rape, each a first-degree felony if committed by an adult, and the court

dismissed the gross sexual imposition charges along with charges in other cases

unrelated to this appeal. The court adjudicated C.W. a delinquent child. After the

dispositional hearing, the court committed C.W. to the custody of DYS for a minimum

period of two years and a maximum period not to exceed his 21st birthday. The court

ordered that a hearing would be held for purposes of classifying C.W. as a juvenile sex

offender registrant upon his release from DYS.

       {¶5}   In April 2008, the court held the classification hearing and signed an
Adams App. No. 10CA892                                                                                      3


“Explanation of Duties to Register as a Juvenile Offender Registrant” form in which the

court classified C.W. as a Tier III registrant, not subject to community notification.

However, in June 2008 the court vacated this classification because C.W.’s hearing

occurred before his release from DYS. Subsequently, C.W. was released from DYS

custody, but he later returned after a parole violation. Prior to the parole violation, the

classification hearing had been delayed after the trial court granted C.W.’s various

requests for continuances, motion for a competency evaluation, and request for a stay

of the classification hearing.

           {¶6}    Ultimately, the court held a classification hearing in March 2010 when

C.W. was again released from DYS custody. C.W. was 19 at the time of the hearing.1

After the hearing, the court classified C.W. as a Tier III juvenile sex offender registrant,

not subject to community notification. This appeal followed.

                                          II. Assignments of Error

           {¶7}    C.W. assigns the following errors for our review:

                                       ASSIGNMENT OF ERROR I

           The Trial Court Committed Plain Error When it Failed to Appoint a
           Guardian ad Litem for [C.W.] in Violation of Ohio Revised Code Section
           2151.281(A)(1) and Juvenile Rule 4(B)(1). (March 3, 2010, T.pp. 2-59);
           (A-55).

                                       ASSIGNMENT OF ERROR II

           The Adams County Juvenile Court abused its discretion when it entered
           an order that does not reflect the findings and the mandatory requirements
           for a juvenile sex offender classification hearing. (A-55); (March 3, 2010,
           T.pp. 2-59); R.C. 2152.83(B).

                                      ASSIGNMENT OF ERROR III

           The Adams County Juvenile Court abused its discretion when it classified
1
    The trial court’s classification entry mistakenly states that C.W. was 18 at the time of the hearing.
Adams App. No. 10CA892                                                                    4


       [C.W.] as a Tier III juvenile sex offender registrant, without considering
       information concerning the factors in R.C. 2152.83(B) and (D) to support
       its finding that finding. (A-55); (March 3, 2010, T.pp. 2-59).

                              ASSIGNMENT OF ERROR IV

       [C.W.] was denied the effective assistance of counsel when trial counsel
       failed to present any evidence to show that [C.W.] had successfully
       completed juvenile sex offender treatment, and failed to apprise the court
       of its duty under R.C. 2152.83(B)(2) to consider the effectiveness of
       [C.W.’s] disposition and treatment provided before it determined that
       [C.W.] was to be classified as a juvenile sex offender registrant. This
       failure led the court to classify [C.W.], who was a discretionary registrant,
       as a tier III juvenile offender registrant. (March 3, 2010, T.pp. 2-38); (A-
       55).

                               ASSIGNMENT OF ERROR V

       The trial court erred when it applied Senate Bill 10 to [C.W.], as the law
       violates his right to equal protection under the law. Fourteenth
       Amendment to the United States Constitution; Article I, Section 2 of the
       Ohio Constitution. (A-55); (March 3, 2010, T.pp. 2-59).

                              ASSIGNMENT OF ERROR IV

       The retroactive application of Senate Bill 10 to [C.W.] violates the Ex Post
       Facto clause of the United States Constitution and the retroactivity clause
       of Section 28, Article II of the Ohio Constitution. (A-55); (March 3, 2010,
       T.pp. 2-59).

                     III. Failure to Appoint Guardian Ad Litem

       {¶8}   In his first assignment of error, C.W. contends that the trial court violated

Juv.R. 4(B) and R.C. 2151.281(A) when it failed to appoint him a guardian ad litem for

purposes of the classification hearing. The state contends that C.W. was not entitled to

a guardian ad litem because he was 19 at the time of the classification hearing and

therefore not a “child” within the meaning of these provisions.

       {¶9}   Juv.R. 4(B) states in relevant part: “The court shall appoint a guardian ad

litem to protect the interests of a child or incompetent adult in a juvenile court
Adams App. No. 10CA892                                                                    5


proceeding when: (1) The child has no parents, guardian, or legal custodian; (2) The

interests of the child and the interests of the parent may conflict[.]” Because this rule is

mandatory, the failure of a court to appoint a guardian ad litem when required under it

constitutes reversible error. In re Slider, 160 Ohio App.3d 159, 2005-Ohio-1457, 826

N.E.2d 356, at ¶9. Whether Juv.R. 4(B) imposes a mandatory duty upon the court to

appoint a guardian ad litem and whether the court failed to discharge that duty

constitute questions of law we review de novo. See In re A.G.B., 173 Ohio App.3d 263,

2007-Ohio-4753, 878 N.E.2d 49, at ¶11, citing Cleveland Elec. Illuminating Co. v. Pub.

Utilities Comm. of Ohio, 76 Ohio St.3d 521, 1996-Ohio-298, 668 N.E.2d 889.

       {¶10} Undoubtedly the classification hearing constituted a “juvenile court

proceeding” within the meaning of Juv.R. 4(B). Moreover, C.W. does not argue that he

qualifies as an “incompetent adult,” so we initially must determine whether he qualifies

as a “child” within the meaning of the rule. As used in the Juvenile Rules, the term

“child” has “the same meaning as in sections 2151.011 and 2152.02 of the Revised

Code.” Juv.R. 2(D).

       {¶11} R.C. 2151.011(B)(5) defines a child as “a person who is under eighteen

years of age, except that the juvenile court has jurisdiction over any person who is

adjudicated an unruly child prior to attaining eighteen years of age until the person

attains twenty-one years of age, and, for purposes of that jurisdiction related to that

adjudication, a person who is so adjudicated an unruly child shall be deemed a ‘child’

until the person attains twenty-one years of age.” C.W. admits that he was 19 years old

at the time the classification hearing occurred. However, C.W. was adjudicated a

delinquent child, not an unruly child, so the unruly child provision in the definition does
Adams App. No. 10CA892                                                                              6


not apply. See R.C. 2151.011(B)(12) and R.C. 2152.02(F) (defining a delinquent child);

R.C. 2151.022 (defining an unruly child). Therefore, C.W. does not meet the definition

of a “child” under R.C. 2151.011(B)(5).

          {¶12} Next, we must evaluate R.C. 2152.02 to determine whether C.W. meets

the definition of a “child” under that statute. Relevant here are former R.C.

2152.02(C)(1) and (6)2:

          As used in [Chapter 2152 of the Revised Code]:

          (C)(1) “Child” means a person who is under eighteen years of age, except
          as otherwise provided in divisions (C)(2) to (6) of this section.

                                                    ***

          (6) The juvenile court has jurisdiction over a person who is adjudicated a
          delinquent child or juvenile traffic offender prior to attaining eighteen years
          of age until the person attains twenty-one years of age, and, for purposes
          of that jurisdiction related to that adjudication, except as otherwise
          provided in this division, a person who is so adjudicated a delinquent child
          or juvenile traffic offender shall be deemed a “child” until the person
          attains twenty-one years of age. * * *

          {¶13} C.W. was over 18 at the time of the classification hearing. However, he

was adjudicated a delinquent child prior to turning 18 and had not yet turned 21.

Therefore, under R.C. 2152.02(C)(6), C.W. would qualify as a “child” for purposes of

determining the juvenile court’s jurisdiction. Moreover, the Supreme Court of Ohio has

rejected the argument that a person who meets the requirements of this provision

qualifies as a “child” solely for the purpose of evaluating the court’s jurisdiction. In re

Andrew, 119 Ohio St.3d 466, 2008-Ohio-4791, 895 N.E.2d 166, at ¶6. The Court has

found that “the second clause of (C)(6) means that when a juvenile court is exercising

jurisdiction over a person adjudicated a delinquent child pursuant to the matter for which


2
    R.C. 2152.02(C) was amended, effective June 17, 2010, to add provision (C)(7) to the statute.
Adams App. No. 10CA892                                                                      7

the person was adjudicated delinquent, the person adjudicated delinquent shall be

treated as a child until he reaches the age of 21.” Id. (Emphasis added.) In Andrew,

the appellant was adjudicated a delinquent child but had a parole-violation hearing after

he turned 18. Id. at ¶1. The Supreme Court concluded that under R.C. 2152.02(C)(6),

he qualified as a “child” and therefore could not waive his right to counsel at the parole-

violation hearing because he had not been counseled by a parent, custodian, or

guardian or consulted with an attorney. Id. at ¶¶7-8. Similarly, we conclude that the

second clause of R.C. 2152.02(6) means that C.W. should be treated as a child for

purposes of the guardianship provision in Juv.R. 4(B). See Juv.R. 2(D).

       {¶14} Next, we must consider whether under Juv.R. 4(B) one of the conditions

that required appointment of a guardian ad litem existed. C.W.’s mother, K.B., was

identified in the delinquency complaints but his father was not. K.B. was served with a

complaint and summons in both cases. Prior to the first hearing, K.B. sent the court a

handwritten note stating that she was “waiving [her] right to be at [C.W.’s] hearing.” At

the hearing, the court indicated that it had learned that K.B. was in jail and planned to

appoint C.W. a guardian ad litem. K.B. did appear at the remainder of the hearings up

to and including the dispositional hearing. However, the court still appointed C.W. a

guardian ad litem. K.B. told the court that she did not know where C.W.’s father was.

       {¶15} K.B. and the guardian ad litem appeared at the first classification hearing

in April 2008. Because C.W. was under 18 at that time, the court expressed concern

that upon his release, a parent, custodian or guardian could be held legally responsible

if C.W. failed to comply with his registration requirements. Therefore, the court

purported to “emancipate” C.W. at that time but never filed an entry to that effect. After
Adams App. No. 10CA892                                                                  8


this hearing, neither K.B. nor the guardian ad litem appeared for any other hearings

related to C.W.’s case. At an October 14, 2008 hearing, the court inquired about the

whereabouts of C.W.’s mother. The court noted that while K.B. was incarcerated, the

court was able to secure her appearance by issuing warrants to convey, but the court

indicated it no longer knew her whereabouts. C.W. told the court that she was “living

with some friends and stuff right now” and that he did not know her address. In

November 2009, C.W.’s guardian ad litem filed a motion to withdraw because C.W.

“ha[d] been sentenced and [the guardian’s] services [were] completed.” The court

granted the motion. Although C.W. was represented by counsel at the March 2010

classification hearing, C.W. no longer had a guardian ad litem. The fact that C.W. was

represented by counsel at the hearing does not absolve the court of its duty to appoint a

guardian if required under the rule. In re Wilson, Washington App. No. 04CA26, 2004-

Ohio-7276, at ¶19.

       {¶16} The record provides no indication that C.W.’s mother, who did not appear

at the March 2010 hearing, was ever notified of the hearing. There is no evidence that

either the court or C.W. learned of K.B.’s whereabouts after the October 14, 2008

hearing. Thus, the court can hardly be faulted for not providing notice to her. But,

without her appearance, C.W. had no parent to protect his interests at the hearing. See

Juv.R. 4(B)(1). It is also possible based upon C.W.’s earlier comments that he did not

know his mother’s address, that she may have abandoned his interests, and was no

longer willing to act on his behalf. If so, this represents a conflict between C.W. and his

mother under Juv.R. 4(B)(2) and requires the appointment of a guardian ad litem. At a

minimum, the court should have inquired about the absence of C.W.’s mother and the
Adams App. No. 10CA892                                                                     9


nature of their current relationship.

       {¶17} Because C.W.’s interests at the classification hearing were not protected

by a parent or a guardian ad litem as required by Juv.R. 4(B)(1) or (2), we sustain

C.W.’s first assignment of error in part. We need not address C.W.’s additional claim

that R.C. 2151.281(A) also required appointment of a guardian ad litem. Accordingly,

we reverse the juvenile court’s judgment classifying C.W. as a Tier III juvenile sex

offender and remand this matter to the juvenile court for further proceedings consistent

with this opinion.

       {¶18} This decision renders moot C.W.’s remaining assignments of error in

which he contends that: 1.) the juvenile court made various errors in its classification

judgment entry; 2.) the juvenile court did not address certain mandatory factors or

consider certain evidence when it classified him; 3.) counsel rendered ineffective

assistance at the classification hearing; 4.) his classification under Senate Bill 10

violated his right to equal protection under the law as guaranteed by the United States

and Ohio Constitutions; 5.) the retroactive application of Senate Bill 10 to him violated

the Ex Post Facto Clause of the United States Constitution and the Retroactivity Clause

of the Ohio Constitution. Thus, we need not address those arguments. See App.R.

12(A)(1)(c).

                                                            JUDGMENT REVERSED AND
                                                                  CAUSE REMANDED.
Adams App. No. 10CA892                                                                 10


                                  JUDGMENT ENTRY

    It is ordered that the JUDGMENT IS REVERSED and that the CAUSE IS
REMANDED. Appellee shall pay the costs.

      The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing the Adams
County Common Pleas Court, Juvenile Division, to carry this judgment into execution.

       Any stay previously granted by this Court is hereby terminated as of the date of
this entry.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure. Exceptions.

Abele, J. & Kline, J.: Concur in Judgment and Opinion.



                                         For the Court


                                         BY: ________________________
                                             William H. Harsha, Judge




                                NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.
