[Cite as In re T.W., 2012-Ohio-2843.]




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




IN RE: T.W.,                                                CASE NO. 16-11-12

   A MINOR CHILD-APPELLANT.                                 OPINION




                Appeal from Wyandot County Common Pleas Court
                                Juvenile Division
                            Trial Court No. D2111042

                                        Judgment Affirmed

                             Date of Decision: June 25, 2012




APPEARANCES:

        Amanda J. Powell for Appellant

        Jonathan K. Miller and Douglas D. Rowland for Appellee
Case No. 16-11-12


SHAW, P.J.

      {¶1} Defendant-appellant T.W. appeals the October 17, 2011 judgment of

the Wyandot County Common Pleas Court, Juvenile Division, sentencing T.W. to

non-reporting probation upon being adjudicated an Unruly Child in violation of

R.C. 2151.022(A).

      {¶2} The facts relevant to this appeal are as follows. T.W. was a fourth-

grade student at a middle school in Upper Sandusky. Between September 1, 2010

and early May 2011, the school was having difficulty with T.W. as T.W. would

routinely leave class without permission, would refuse to do work assigned to him

while in class, and would make comments to school staff that could be considered

threats. As a result, in early May of 2011, T.W. was placed in a classroom for

students who had been labeled “emotionally disturbed.”       Despite the change,

T.W.’s behavior did not improve.

      {¶3} On May 25, 2011, Jim Wheeler, the Principal for the middle school,

filed a complaint against T.W. alleging that T.W. was an Unruly Child in violation

of R.C. 2151.022(A). The complaint claimed that “[o]n or about September 1,

2010 through May 23, 2011, * * * T.W. did not submit to the reasonable control of

his parents, teachers, guardian, or custodian, by reason of being wayward or

habitually disobedient.” (Doc. 1).




                                       -2-
Case No. 16-11-12


         {¶4} On August 25, 2011, an adjudicatory hearing was held to determine

whether T.W. was an “unruly child.” At the hearing, the State called Principal

Wheeler as its first witness. Principal Wheeler testified that T.W. would routinely

leave class without permission.                Principal Wheeler also testified that on one

occasion T.W. threatened to run away and on another occasion T.W. had made

comments that could be construed as threats.1 Principal Wheeler testified that at

least once “he spent his entire day dealing with T.W.’s behavior and the

disruptions they caused.” (Doc. 28). Further, Principal Wheeler testified that

T.W. “would not accept any disciplinary measure unlike any other student even

those with the same behavioral issues as [T.W.].” (Doc. 28).

         {¶5} After Principal Wheeler was cross-examined, the State called Suzanne

Getz, a Teacher’s Aide for the “emotionally disturbed” class. Getz testified to her

interaction with T.W. and the difficulties she encountered. Next, the State called

Patrolman Joseph Ruse. Ruse testified to the “four to five” times he was called to

the middle school for incidents related to T.W. (Aug. 25, 2011 Tr. at 50). The

State then rested its case.

         {¶6} Although T.W.’s counsel did cross-examine all of the State’s

witnesses, T.W. did not testify, T.W. did not call any witnesses, and T.W. did not

enter any exhibits into evidence. However, at the close of testimony, T.W.’s

1
 In one such comment T.W. “looked at [the Principal], held his thumb and forefinger like this and said
words to the effect of * * * ‘you’re getting on – you’re trying my patience. * * * [Y]ou are here, you better
hope it doesn’t get to here’ and then he closed the thumb and forefinger.” (Aug. 25, 2011 Tr. at 10).

                                                    -3-
Case No. 16-11-12


attorney orally moved to dismiss the complaint against T.W., claiming that no

“teacher” testified to T.W. being unruly and that, therefore, the charge could not

be proven. The court took the argument under advisement.

        {¶7} On September 1, 2011, the court filed its Judgment Entry finding that

Principal Wheeler satisfied the definition of “teacher” in R.C. 3319.09 as Principal

is explicitly listed within the statutory definition of teacher.2                 The court then

specifically found Principal Wheeler’s testimony credible and held that “Mr.

Wheeler’s testimony established that [T.W.] does not submit to the reasonable

control of his teacher, Mr. Wheeler, by reason of being wayward and habitually

disobedient. The Court therefore adjudges [T.W.] to be an unruly child and finds

him guilty of violating Revised Code Section 2151.022(A) beyond a reasonable

doubt.” (Doc. 28). The judgment entry of the court ordered T.W. to undergo a

psychological evaluation to determine what disposition would be in T.W.’s best

interest.

        {¶8} On October 17, 2011, a dispositional hearing was held. At the hearing

T.W.’s attorney stated that T.W. had been diagnosed with ADHD and was being

medicated for that disorder.3 T.W.’s attorney stated that T.W. had been attending

a new school, had been behaving, and had received an interim grade report with all


2
  The court did hold, however, that the testimony from Getz and Patrolman Ruse would not be considered
as neither fit the statutory definition.
3
  According to T.W’s attorney’s statements, reports also indicated T.W. had “Oppositional Disorder” as
well as ADHD. (Oct. 17, 2011 Tr. at 2).

                                                 -4-
Case No. 16-11-12


A’s and one B. (Oct. 17, 2011 Tr. at 3). T.W.’s attorney then asked that in light

of those facts that the case be closed, or, in the alternative, that if the case was to

remain open for probation, that the only condition be that T.W. maintain his

medication and his appointments.

       {¶9} Ultimately the court placed T.W. on nonreporting probation, ordered

T.W. to continue at his new school and ordered T.W. to continue seeing his

doctor, Dr. Spare. This disposition was memorialized in a judgment entry on the

same day as the dispositional hearing, October 17, 2011.

       {¶10} It is from this judgment that T.W. appeals, asserting the following

assignment of error for our review.

                           ASSIGNMENT OF ERROR

       THE WYANDOT COUNTY JUVENILE COURT ERRED
       WHEN IT DENIED [T.W.]’S REQUESTS TO DISMISS THE
       CASE      IN  VIOLATION  OF   THE  FOURTEENTH
       AMENDMENT TO THE UNITED STATES CONSTITUTION,
       ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION,
       R.C. 2151.01, AND JUVENILE RULES 1(B), 9(A), AND
       29(F)(2)(d).

       {¶11} In his assignment of error, T.W. argues that the trial court erred by

not dismissing the complaint against him.         Specifically, T.W. contends that

pursuant to the Juvenile Rules of Procedure, the complaint against T.W. should

have been dismissed because dismissal was in T.W.’s and the community’s best

interests.


                                         -5-
Case No. 16-11-12


       {¶12} “Juvenile Rule 29(F)(2) vests the trial court with discretion to

adjudicate and dispose of a case.” In Re Arnett, 3d. Dist. No. 5-04-20, 2004-Ohio-

5766, ¶ 9, citing In re Bynum, 8th Dist. No. 75672, (Feb. 17, 2000) unreported.

Whether a proceeding should be dismissed or reach the merits is within the sound

discretion of the trial judge. Id., citing In re N.K., 8th Dist. No. 82332, 2003-Ohio

7059, ¶ 23. The standard of review in this context is an abuse of discretion. See,

E.g., In re Smith, 80 Ohio App.3d 502, 504 (1st. Dist.1992) (reviewing an appeal

from the State after a trial judge dismissed a juvenile complaint as being in the

best interest of the child). “The term ‘abuse of discretion’ connotes more than an

error of law or judgment; it implies that the court’s attitude is unreasonable,

arbitrary or unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219

(1983).

       {¶13} In this case T.W. was found guilty of being an Unruly Child in

violation of R.C. 2151.022(A), which defines an unruly child as “[a]ny child who

does not submit to the reasonable control of the child’s parents, teachers, guardian,

or custodian, by reason of being wayward or habitually disobedient.” The trial

court found T.W. guilty of being an unruly child based upon the “credible”

testimony of Principal Wheeler. (Doc. 28).

       {¶14} Both at the close of T.W.’s adjudication hearing and before the trial

court’s final disposition at the dispositional hearing, T.W.’s attorney made a


                                         -6-
Case No. 16-11-12


request to dismiss the complaint against T.W.4 Notwithstanding those requests,

the trial court proceeded to sentence T.W. to nonreporting probation.

           {¶15} On appeal, T.W. argues that the trial court should have dismissed the

complaint against him. In support of his argument, T.W. claims that he was doing

better in his new school and that he had not shown any behavioral problems since

being diagnosed with, and medicated for, ADHD.                                 T.W. also cites several

provisions of the Juvenile Rules of procedure, which, as he claims, mandate a

dismissal. The relevant excerpts of the Juvenile Rules cited by T.W. are provided

below.

           Juv.R. 1

           ***
           (B) Construction

           These rules shall be liberally interpreted and construed so as to
           effectuate the following purposes:

           (1) to effect the just determination of every juvenile court
           proceeding by ensuring the parties a fair hearing and the
           recognition and enforcement of their constitutional and other
           legal rights;

           (2) to secure simplicity and uniformity in procedure, fairness in
           administration, and the elimination of unjustifiable expense and
           delay;

           (3) to provide for the care, protection, and mental and physical
           development of children subject to the jurisdiction of the
           juvenile court, and to protect the welfare of the community; and


4
    At the dispositional hearing, T.W.’s attorney requested that the case be ‘closed.’ (Oct. 17, 2011 Tr. at 3).

                                                       -7-
Case No. 16-11-12


      (4) to protect the public interest by treating children as persons
      in need of supervision, care and rehabilitation.

      ***

      Juv.R. 9

      (A) Court action to be avoided

      In all appropriate cases formal court action should be avoided
      and other community resources utilized to ameliorate situations
      brought to the attention of the court.

      ***

      Juv.R. 29

      (F) Procedure upon determination of the issues

      Upon the determination of the issues, the court shall do one of
      the following:

      (1) If the allegations of the complaint, indictment, or
      information were not proven, dismiss the complaint;

      (2) If the allegations of the complaint, indictment, or
      information are admitted or proven, do any one of the following,
      unless precluded by statute:

      (a) Enter an adjudication and proceed forthwith to disposition;

      (b) Enter an adjudication and continue the matter for
      disposition for not more than six months and may make
      appropriate temporary orders;

      (c) Postpone entry of adjudication for not more than six
      months;

      (d) Dismiss the complaint if dismissal is in the best interest of
      the child and the community.

                                     -8-
Case No. 16-11-12



Juv.R. 1(B); 9(A); 29(F).

       {¶16} According to T.W., pursuant to the rules above, the trial court was

required to dismiss the complaint. However, Juv.R. 29(F)(2) makes clear that it is

completely within the court’s discretion to choose any one of the enumerated ways

to dispose of the case. As is clearly stated in Juv.R. 29(F)(2)(b), it is well within

the trial court’s discretion to “enter an adjudication” and proceed to disposition.

The court in this case chose to proceed and to adjudicate rather than to dismiss the

complaint against T.W.

       {¶17} Although the court did not specifically hold that it was in T.W. and

the community’s best interest to enter a disposition and place T.W. on

nonreporting probation, it is implicit within the trial court’s findings as the court

chose not to dismiss the case. Moreover, the trial court’s decision not to dismiss is

supported by the testimony at the adjudicatory hearing. The trial court had heard

the “credible” testimony of Principal Wheeler who described incidents that formed

the basis of finding T.W. unruly.

       {¶18} Furthermore, while T.W. argues that between the adjudication

hearing and the dispositional hearing T.W.’s behavior had improved, T.W. had not

been at his new school for very long. T.W.’s argument that the case should be

dismissed is ultimately unsupported as T.W. cannot point to anything in the record

illustrating how it is in his, or the community’s, best interest that the case be

                                         -9-
Case No. 16-11-12


dismissed.5 On the contrary, the record seems to establish that the current course

of action had been effective for T.W. as he had apparently been doing better in

school.

         {¶19} At best, T.W. argues that an alternative disposition could have been

appropriate in this case.            As it is well within the discretion of the court to

determine whether a complaint should be dismissed, there is evidence to support

the decision made by the trial court, and the trial court is in a better position to

determine what is in the best interests of T.W., we do not find an abuse of

discretion in this case.

         {¶20} For the foregoing reasons, T.W.’s assignment of error is overruled

and the judgment of the Wyandot County Common Pleas Court, Juvenile

Division, is affirmed.

                                                                                   Judgment Affirmed

PRESTON and ROGERS, J.J., concur.

/jlr




5
  In fact there is no documentation supporting T.W.’s attorney’s oral claims at the dispositional hearing that
T.W. had had no behavioral problems or that his grades were as he stated. However, we note that even if
this information had been in the record, it would not have changed the outcome of this case as the record is
still devoid of proof that dismissal was in his or society’s best interest.

                                                    -10-
