In re E.H.

[Cite as In re E.H., 2016-Ohio-1186.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

In re: :
No. 15AP-680
E.H., : (C.P.C. No. 14JU-5784)

(Appellant). : (REGULAR CALENDAR)

:

DECISION

Rendered on March 22, 2016

On brief: Yeura R. Venters, Public Defender, and David L.
Strait, for appellant.

On brief: Ron O'Brien, Prosecuting Attorney, and
Katherine J. Press, Assistant Prosecuting Attorney, for
appellee State of Ohio.

APPEAL from the Franklin County Court of Common Pleas,
Division of Domestic Relations, Juvenile Branch

HORTON, J.
{¶ 1} E.H., a minor, appeals from the judgment of the Franklin County Court of
Common Pleas, Division of Domestic Relations, Juvenile Branch ("juvenile court"), that
adjudicated her as an unruly child on the basis of habitual truancy. However, because the
juvenile court's adjudication had no accompanying disposition, the judgment was not a
final appealable order over which we have jurisdiction. Accordingly, we dismiss the
appeal.
I. FACTS AND PROCEDURAL BACKGROUND
{¶ 2} On April 30, 2014, a complaint was filed in the juvenile court, alleging that
E.H. was a delinquent child because she had committed "chronic school truancy" in
No. 15AP-680 2

violation of R.C. 2152.02(D).1 The complaint also alleged that E.H.'s mother had violated
R.C. 3321.38 by failing to send E.H. to school. (Complaint.) A chronic truant is defined as
"any child of compulsory school age who is absent without legitimate excuse for absence
from the public school the child is supposed to attend for seven or more consecutive
school days, ten or more school days in one school month, or fifteen or more school days
in a school year." R.C. 2152.02(D). Under the delinquency statute, "[a]ny child who is a
chronic truant" is a delinquent child. R.C. 2152.02(F)(5).
{¶ 3} At a hearing held before a magistrate on September 16, 2014, E.H.'s
attorney indicated that she wished to request a competency examination for E.H. (Tr. 2-
3.) The state opposed such an examination and moved the court to amend the complaint
to charge E.H. with being a "habitual truant" under R.C. 2151.011(B)(19) instead of a
"chronic truant" under R.C. 2152.02(D). (Tr. 4.) A habitual truant is a child with
unexcused absences for "five or more consecutive school days, seven or more school days
in one school month, or twelve or more school days in a school year." R.C.
2151.011(B)(19). A child that is found to be a habitual truant is not subject to a
delinquency adjudication, but instead falls under the "unruly child" statute. R.C.
2151.022(B) (providing four definitions of an "unruly child," including "[a]ny child who is
an habitual truant from school and who previously has not been adjudicated an unruly
child for being an habitual truant").
{¶ 4} The state sought to amend the charge to habitual truancy, which it
described as a "lesser included offense," because the juvenile competency statute, R.C.
2152.52(A)(1), expressly precludes the ordering of a competency hearing for an unruly
child. (Tr. 4.) The statute reads: "In any proceeding under [R.C. 2152] other than a
proceeding alleging that a child is an unruly child or a juvenile traffic offender, any party
or the court may move for a determination regarding the child's competency to participate
in the proceeding."
{¶ 5} Counsel for E.H. stated that, unless the court agreed to order a competency
exam, she objected to the state's request to amend. She asserted that her client's due
process rights and Sixth Amendment right to consult with counsel risked being infringed

1 The complaint alleged that E.H. was a 13-year-old minor at the time of filing. At the hearing held on

September 16, 2015, E.H.'s attorney asserted that she was 12, and had been 11 at the time she was charged.
(Tr. 3.)
No. 15AP-680 3

without a competency determination. E.H.'s attorney further pointed out that her client
was only 12, had been 11 at the time of the alleged truancy, and stated that "my
assessment of her ability to consult with me appropriately in an attorney/client
relationship is nil." (Tr. 3-4.)
{¶ 6} On October 12, 2014, E.H.'s attorney filed a motion seeking dismissal of the
State's complaint on the basis of E.H.'s incompetency, or, in the alternative, the
appointment of a guardian ad litem and the ordering of a competency evaluation. The
magistrate denied the motion, and E.H. filed objections. (Magistrate's Decision and
Entry.)
{¶ 7} The juvenile judge conducted a hearing on February 19, 2015, before issuing
a decision that overruled E.H.'s objections on March 6, 2015. Quoting the language of the
juvenile competency statute that precludes a competency examination in an unruly child
proceeding, the decision stated that the juvenile court had "no binding obligation to grant
a request for a competency evaluation based upon the unruly complaint." (Decision and
Judgment Entry, 5.) Regarding E.H.'s constitutional challenge to the statute, the decision
concluded that no infringement of the right to counsel had occurred because "counsel was
provided, and effectively represented the juvenile." (Decision and Judgment Entry, 5.)
{¶ 8} In a judgment entry dated June 16, 2015, the court adjudicated E.H. to be
an unruly minor, based on a finding of habitual truancy. The entry also stated that the
matter was to be held "open for further review," and set a follow-up hearing for
October 15, 2015. The count against E.H.'s mother, for failure to send a child to school,
was dismissed at the request of the state.
II. ASSIGNMENT OF ERROR
{¶ 9} E.H. appeals, asserting the following assignment of error:
The Juvenile Court committed reversible error by denying a
motion for a competency evaluation.

{¶ 10} Conceding that "there is no statutory basis in Ohio for a juvenile to plead
that he or she is incompetent to stand for adjudication as an unruly minor," E.H.
challenges the constitutionality of the denial of her request for a competency evaluation.
(Appellant's Brief, 3.) She argues that, because due process requires a defendant to be
legally competent to stand trial, and because juvenile proceedings must comport with
No. 15AP-680 4

principles of due process, the standards of competency should extend to juveniles.
(Appellant's Brief, 3-5.) According to E.H., the fact that her proceeding fell under the
unruly child statute and not the delinquency statute "does not change the analysis,"
because a court has the authority to issue orders that may "significantly restrict" the
liberty interests of a child that it adjudicates as unruly. (Appellant's Brief, 5-6.)
{¶ 11} In response, the state argues that the issue of competency is irrelevant in an
unruly child proceeding arising from habitual truancy because the alleged harm is a non-
criminal status offense remedied by rehabilitation instead of punishment. (Appellee's
Brief, 2-3.) The state points to the purposes of the delinquency statute, R.C. 2152.01,
which include "hold[ing] the offender accountable for the offender's actions," and argues
that the purposes of the unruly child statute, R.C. 2151.01, do not include punishment.
(Appellee's Brief, 4-6.) The state believes that the constitutional right that E.H. argues for
does not apply to juveniles adjudicated to be unruly, who are not similarly situated to
juveniles in delinquency proceedings or criminal defendants. (Appellee's Brief, 8-11.)
III. ANALYSIS
{¶ 12} Although the parties have not raised the issue, we must consider whether
this appeal has appropriately invoked our jurisdiction. "Courts of appeals shall have such
jurisdiction as may be provided by law to review and affirm, modify, or reverse judgments
or final orders of the courts of record inferior to the court of appeals within the district" in
which they reside. Ohio Constitution, Article IV, Section 3(B)(2). This jurisdiction
includes a "finding, order, or judgment of a juvenile court that a child is delinquent,
neglected, abused, or dependent, for prejudicial error committed by such lower court."
R.C. 2501.02. Construing this provision, the Supreme Court of Ohio has stated that "[t]he
use of the word 'including' in R.C. 2501.02 can only be said to enumerate some, but not
all, of the classes of juvenile court judgments subject to appeal." In re Hartman, 2 Ohio
St.3d 154, 156 (1983) (holding that R.C. 2501.02 provides a right of appeal to juvenile
traffic offenders, even without specific mention of them in the statute). Thus, although
R.C. 2501.02 does not specifically include them, we have jurisdiction over appeals from
unruly child proceedings. See, e.g., In re Clark, 10th Dist. No. 86AP-842 (Feb. 26, 1987)
(affirming juvenile court's unruly child determination based on habitual truancy).
No. 15AP-680 5

{¶ 13} Nevertheless, to properly lie within our jurisdiction, any such appeal must
be based on a final appealable order. Ohio Constitution, Article IV, Section 3(B)(2); R.C.
2505.03(A); see also Gen. Acc. Ins. Co. v. Ins. Co. of N. Am., 44 Ohio St.3d 17, 20 (1989)
("It is well-established that an order must be final before it can be reviewed by an
appellate court. If an order is not final, then an appellate court has no jurisdiction."). If
"the parties fail to raise the issue of whether a judgment constitutes a final, appealable
order, the appellate court must raise the jurisdictional issue sua sponte." Fertec, LLC v.
BBC&M Eng., Inc., 10th Dist. No. 08AP-998, 2009-Ohio-5246, ¶ 5, citing Whitaker-
Merrell Co. v. Geupel Const. Co., 29 Ohio St.2d 184, 186 (1972). Thus, although the
parties have not raised the issue of whether the juvenile court's adjudication of E.H. was a
final appealable order, we must do so to be assured of our jurisdiction.
{¶ 14} The statutory definition of final appealable order states that:

An order is a final order that may be reviewed, affirmed,
modified, or reversed, with or without retrial, when it is one of
the following:

(1) An order that affects a substantial right in an action that in
effect determines the action and prevents a judgment;

(2) An order that affects a substantial right made in a special
proceeding or upon a summary application in an action after
judgment;

(3) An order that vacates or sets aside a judgment or grants a
new trial;

(4) An order that grants or denies a provisional remedy and
to which both of the following apply:

(a) The order in effect determines the action with respect to
the provisional remedy and prevents a judgment in the action
in favor of the appealing party with respect to the provisional
remedy.

(b) The appealing party would not be afforded a meaningful
or effective remedy by an appeal following final judgment as
to all proceedings, issues, claims, and parties in the action.

R.C. 2505.02(B).
No. 15AP-680 6

{¶ 15} A "provisional remedy" is defined as a "proceeding ancillary to an action" by

the statute. R.C. 2505.02(A)(3). In both the criminal and juvenile contexts, a court's

competency determination is a "provisional remedy" under R.C. 2505.02(B)(4). State v.

Upshaw, 110 Ohio St.3d 189, 2006-Ohio-4253, ¶ 16; In re J.W., 11th Dist. No. 2009-G-

2939, 2010-Ohio-707, ¶ 15. The juvenile court's denial of E.H.'s request for a competency

hearing denied her the remedy she sought, of being found incompetent to participate in

the proceedings, which would have required the dismissal of the complaint against her.

Thus, the denial fulfilled the first part of the definition of a final appealable order arising

from a provisional remedy, as it "determine[d] the action with respect to the provisional

remedy and prevents a judgment in the action in favor of the appealing party with respect

to the provisional remedy." R.C. 2505.02(A)(4)(a).

{¶ 16} However, the court's determination must also prevent the appealing party

from obtaining "a meaningful or effective remedy by an appeal following final judgment

as to all proceedings, issues, claims, and parties in the action" to qualify as a final

appealable order. R.C. 2505.02(A)(4)(b). In the criminal context, this prong is only

fulfilled when an incompetency determination is accompanied by an order committing

the defendant to an institution or forcing treatment by medication for the purpose of

restoring competency. Upshaw at ¶ 18-19; State v. Muncie, 91 Ohio St.3d 440, 452, 2001-

Ohio-93 (holding that "when a trial court orders an incompetent defendant to be forcibly

medicated with psychotropic drugs in an effort to restore the defendant to competency,

that order is final and appealable"). When there is a competency determination, however,

"the potential loss of a meaningful or effective remedy associated with an incompetency

finding" is not a danger, and R.C. 2505.02(A)(4)(b) is not satisfied. In re J.W. at ¶ 14. As a

consequence, the competency determination "is not a final appealable order" under R.C.
No. 15AP-680 7

2505.02. Id. at ¶ 15 (dismissing juvenile's appeal of a competency determination for lack

of jurisdiction due to the absence of a final appealable order).

{¶ 17} In this case, there is no indication that the juvenile court's denial of E.H.'s

request for a competency evaluation would prevent her from obtaining a meaningful or

effective remedy on an appeal after disposition. The effect of the denial was, in essence, a

determination that E.H. was competent. As in In re J.W., however, there is no

accompanying order from the juvenile court that threatens confinement or infringement

of a liberty interest. E.H. has cited to R.C. 2151.354, the statute that lists the dispositional

orders available to the juvenile court after an unruly child adjudication, and argues that

"adjudicated unruly minors may become subject to court orders that significantly restrict

their liberty" under its provisions. (Emphasis added.) (Appellant's Brief, 6.) However, at

this time, E.H. faces no such restriction based on any order from the juvenile court, as no

such order has been issued. Without a dispositional order, any potential restriction to her

liberty interests under R.C. 2151.234 is purely a matter of speculation, not an imminent

injury that this court may remedy.

{¶ 18} Furthermore, because this is a juvenile case, the absence of a dispositional

order also demonstrates that E.H.'s appeal lacks a final appealable order. "Generally, the

question of whether an order is final and appealable turns on the effect which the order

has on the pending action rather than the name attached to it, or its general nature." In re

Murray, 52 Ohio St.3d 155, 157 (1990), citing Harvey v. Civil Serv. Comm., 27 Ohio

App.3d 304, 305 (1st Dist.1985). An unruly child adjudication does not have the effect of

concluding a juvenile proceeding, as disposition must follow. R.C. 2151.35. The statute

directs the juvenile court in the following manner:
No. 15AP-680 8

If the court at the adjudicatory hearing finds beyond a
reasonable doubt that the child is a delinquent or unruly child
or a juvenile traffic offender, the court shall proceed
immediately, or at a postponed hearing, to hear the evidence
as to the proper disposition to be made under section
2151.354 or Chapter 2152 of the Revised Code. If the court at
the adjudicatory hearing finds beyond a reasonable doubt that
the child is an unruly child for being an habitual truant, or
that the child is an unruly child for being an habitual truant
and that the parent, guardian, or other person having care of
the child has failed to cause the child’s attendance at school in
violation of section 3321.38 of the Revised Code, the court
shall proceed to hold a hearing to hear the evidence as to the
proper disposition to be made in regard to the child under
division (C)(1) of section 2151.354 of the Revised Code and the
proper action to take in regard to the parent, guardian, or
other person having care of the child under division (C)(2) of
section 2151.354 of the Revised Code.

(Emphasis added.) R.C. 2151.35(A)(1).

{¶ 19} Thus, whether a child is adjudicated delinquent, unruly, or unruly by reason
of habitual truancy, the juvenile court must follow up with a "proper disposition."
{¶ 20} The Rules of Juvenile Procedure also demonstrate that an adjudication is
only a preliminary determination, as it must be followed by "any one of the following"
four actions: the juvenile court must "proceed forthwith to disposition," "continue the
matter for disposition for not more than six months," "[p]ostpone any entry of
adjudication for not more than six months," or, if it "is in the best interest of the child and
the community," dismiss the complaint. Juv.R. 29(F)(2). Furthermore, the Juvenile Rules
reserve entry of judgment until after the conclusion of the dispositional hearing. Juv.R.
34(C).
{¶ 21} Thus, R.C. 2151.35 and Juv.R. 29(F)(2) apply the same two-step process of
adjudication and disposition to both delinquency and unruly child proceedings. In the
context of delinquency, the Supreme Court of Ohio has held that "[i]t is rudimentary that
a finding of delinquency by a juvenile court, unaccompanied by any disposition thereof,
is not a final appealable order." (Emphasis added.) In re Sekulich, 65 Ohio St.2d 13, 14
(1981), citing In re Whittington, 17 Ohio App.2d 164 (5th Dist.1969), and In re Bolden, 37
No. 15AP-680 9

Ohio App.2d 7 (3d Dist.1973). The same principle applies to unruly child adjudication.
Without an accompanying disposition, it is not a final appealable order.
{¶ 22} In this case, an adjudicatory hearing was held on June 9, 2015, and the
court adjudicated E.H. as unruly at its conclusion. (Tr. 11-12.) However, the judge did not
proceed to disposition, and instead stated the following:
As to a disposition, I'm encouraged to hear that in fact her
school attendance is much improved and that her
performance is much improved but I am going to hold this
matter open for a review hearing in October to verify that in
fact she has continued to make the progress that you both
have spoken of.

(Tr. 33.)

{¶ 23} The judgment entry filed on June 15, 2015, also reflected the judge's
intention to delay the dispositional hearing. It stated that E.H. "IS ADJUDICATED AN
UNRULY MINOR BY PROOF BEYOND A REASONABLE DOUBT, HAVING
COMMITTED THE OFFENSE OF COUNT #1, HABITUAL SCHOOL TRUANCY."
(Emphasis sic.) The entry also stated: "THE COURT HOLDS THIS MATTER OPEN FOR
FURTHER REVIEW." (Emphasis sic.)
{¶ 24} A juvenile adjudication without an accompanying disposition where the
matter remains "open" is not a final appealable order. In re C.C., 10th Dist. No. 07AP-
993, 2008-Ohio-2803, ¶ 12. In In re C.C., a juvenile appealed a final judgment that had
adjudicated him delinquent based on two counts of theft and one count of attempted
theft. Id. at ¶ 4. However, the juvenile court had only rendered a disposition on one of the
theft offenses, and stated that the other two offenses were to remain "open until parole is
complete." Id. Regarding the two offenses without dispositions, the juvenile court
"contemplated further action, thereby leaving issues unresolved." Id. at ¶ 10. Without
accompanying dispositions, the juvenile court had "failed to inform appellant of any
consequences, obligations, or duties resulting from" the adjudication. Id. at ¶ 11.
Accordingly, appellate jurisdiction only encompassed the theft offense with a disposition,
and the review was confined to that offense.
{¶ 25} Similarly, E.H. appeals only from an entry adjudicating her unruly and
holding the matter "open for further review," with no disposition by the juvenile court.
No. 15AP-680 10

Because it lacked a disposition, the entry was not a final appealable order, and we,
therefore, lack jurisdiction under R.C. 2505.03(A) to hear E.H.'s appeal. Accordingly, this
appeal is dismissed.
Appeal dismissed.

DORRIAN, P.J. and TYACK, J., concur.
_________________