In re J.D.

2025 Ohio 746

• Court: Ohio Court of Appeals
• Decided: March 6, 2025
• Docket: 114007
• Status: Published

Opinion

[Cite as In re J.D., 2025-Ohio-746.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

IN RE J.D. :

A Minor Child : No. 114007

[Appeal by J.D.] :

JOURNAL ENTRY AND OPINION

JUDGMENT: REVERSED AND REMANDED RELEASED AND JOURNALIZED: March 6, 2025

Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case No. DL-22-104622

Appearances:

Elizabeth Miller, Ohio Public Defender, and Lauren Hammersmith, Assistant State Public Defender, for appellant.

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Nicholas Fink, Assistant Prosecuting Attorney, for appellee.

EILEEN A. GALLAGHER, A.J.:

J.D. appeals the order of the Cuyahoga County Court of Common Pleas,

Juvenile Division, adjudicating him delinquent and committing him to the Ohio

Department of Youth Services (“ODYS”). For the reasons that follow, we reverse the

juvenile court’s judgment and remand for further proceedings. I. Facts and Procedural History

On May 6, 2022, a complaint was filed against J.D., who was 14 years

old and in the temporary custody of the Cuyahoga County Division of Children and

Family Services (“CCDCFS”), alleging that he committed what would have been

several robbery and firearm offenses if committed by an adult. The juvenile court

held a hearing the same day, at which the prosecutor stated that J.D. and a 12-year-

old juvenile were alleged to have stolen a car while pointing a gun at the victim. The

victim and a friend allegedly got into another vehicle and chased the juveniles

“through the City.” This chase resulted in a motor vehicle crash and J.D. and the

other juvenile were apprehended.

On September 13, 2022, J.D. was adjudicated delinquent after

admitting to one count of aggravated robbery with a three-year firearm and a

forfeiture specification. The juvenile court referred the matter to the “ODYS

Committee for recommendation regarding disposition” and ordered that J.D.

“remain[] in secure detention . . . .”

The “ODYS Committee Referral” form (“Referral Form”) concerning

J.D., dated October 6, 2022, details J.D.’s “Probation History” and states, in part, as

follows:

[J.D.] was first involved with this court on October 19, 2018, on case number DL-18-112105, this case was dismissed on October 24, 2018, due to [J.D.] not being found competent. In case number DL-18- 112477, Domestic Violence, this case was also dismissed on October 24, 2018, due to [J.D.] not being competent. In case number DL-19- 100997, Domestic Violence, this case was dismissed on February 27, 2019 [because J.D.] was not found competent.[1]

The Referral Form further notes that J.D. was found delinquent in two

cases, subsequent to his incompetency findings, after he “struggled with,” but

ultimately completed, the juvenile court’s Competency Remediation Program in

November 2020. Additionally, J.D. was found to be in violation of his probation

several times in 2021, was placed on home detention with an electronic monitor and

was “accepted into placement” at a facility but “never went to placement.”

The Referral Form listed J.D.’s “special concerns” as: “Mental Health

Concerns (ADHD, Other Specified Trauma and Stressor Related Disorder, Cannabis

Use Disorder, Moderate, and Intellectual Disorder, Moderate); On Medication.”

The Referral Form stated that the following “Intervention” had been “tried” but were

“terminated”: Probation; PEP IHBT; Applewood and Cuyahoga County Board of

Developmental Disabilities. Finally, the Referral Form listed the “Objectives of

Referral” as follows: “Manage mental health symptoms; Decrease aggressive

behavior; Address high risk behaviors; Improve academic functioning and

attendance; Improve social skills; Improve family interactions; Address positive

associations/interactions with peers; Chemical Dependency Issues; Medication

compliance.”

1 J.D. was born in August 2007 and was first found incompetent in juvenile court

on October 24, 2018, when he was 11 years old. As a result of the Referral Form, the juvenile court ordered J.D. to

undergo a competency-to-stand-trial evaluation, which was conducted on

October 26, 2022, by the juvenile court’s Diagnostic Clinic’s Dr. Frank Ezzo. Dr.

Ezzo issued a report on October 31, 2022 (“First Competency Report”). In the First

Competency Report, Dr. Ezzo stated that “[o]f immediate concern to the court

pursuant to ORC 2152.51(A)(1) is [J.D.’s] ability to understand the nature and

objectives of the proceeding against him and to assist in his own defense.” The First

Competency Report listed J.D.’s mental health diagnoses as attention-

deficit/hyperactivity disorder (“ADHD”), oppositional defiant disorder (“ODD”)

and disruptive mood dysregulation disorder (“DMDD”). Dr. Ezzo noted that these

diagnoses “manifested by a persistent pattern of inattention and/or

hyperactivity/impulsivity that interferes with functioning . . . and a persistent

irritable or angry mood most of the day, nearly every day.”

The First Competency Report listed J.D.’s IQ as being in the 57-59

range, noted that he “began special educational services” shortly after his fifth

birthday “under the category of Emotional Disturbance” and reported that, although

J.D. was in the 9th grade, he was reading at “an early first grade level.”

The First Competency Report concluded with the following forensic

opinion:

[J.D.] initially did not have an understanding and appreciation of the nature and objectives of court proceedings. However, after an explanation was provided, [J.D] retained the knowledge and demonstrated an understanding and appreciation of . . . court proceedings . . . and how to assist in his defense. Therefore, [J.D.] needs reasonable accommodations during court proceedings that would involve:

1. Succinct and age appropriate communication with regards to any concepts or procedures that are not initially understood.

2. If the court proceeding is more than one-hour, [J.D.] will need a break at which time his defense attorney should provide [J.D.] with a summary of what had transpired to that point.

A referral to the Diagnostic Clinic’s Competency Remediation Program is recommended if reasonable accommodations do not result in an understanding and appreciation of the core statutory requirements to competency to stand trial.

On December 7, 2022, the court issued a journal entry finding that,

“as a result of [the First Competency Report], the probation department is

recommending that [J.D.] be released from the detention center and referred to the

remediation program through the Juvenile Court Diagnostic Clinic.” At this time,

the court did not hold a hearing nor did it determine J.D.’s competency, which is

required under R.C. 2152.58(A). R.C. 2152.58(A) states that “[n]ot less than [15] nor

more than [30] business days after receiving an evaluation . . ., the court shall hold

a hearing to determine the child’s competency to participate in the proceeding.”

On March 3, 2023, approximately five months after the court received

the First Competency Report, the court held a competency hearing.2 Dr. Ezzo

testified at this hearing that he interviewed J.D. for two hours. Dr. Ezzo explained

2 J.D.’s competency hearing was held in relation to this case as well as Case No.

DL-22-110282, which is not part of this appeal. It is unclear from the record what Case No. DL-22-110282 concerns, although at the hearing, the prosecutor stated that J.D. “picked up another case, the vandalism case, which happened in the DH where he was acting out in the DH.” that he did “not opine on the ultimate issue of competency” in his report. Rather,

he gave his “opinion on what is often referred to as the prongs of competency. And

the decision of whether or not a youth is competent or not competent is a judicial

decision.” Dr. Ezzo further explained that there are four dispositions “available”:

“That a youth is not competent and never will be competent, no matter what you

do”; “That the youth is competent”; “That the youth is not competent, but may be

competent with reasonable accommodation” and “[T]hat the youth is not

competent, but may be competent with a Competent Remediation Program.”

Dr. Ezzo testified about his recommendation concerning J.D. in the

First Competency Report:

I clearly state that [J.D.] initially did not have an understanding and appreciation of the nature and objectives of court proceedings.

What I found during my competency interview with [J.D.] was after concepts were explained to him, he retained them in that period of time and had an understanding and appreciation of those matters.

The statute doesn’t state, though, that the child is competent, but needs reasonable accommodations. That’s not the way the Statute is worded.

It’s worded that the child is not competent and . . . may be competent with reasonable accommodations.

And that is essentially what my recommendation is reasonable accommodation.

I make a two-tier recommendation. The least restrictive recommendation is reasonable accommodations.

If those don’t work in vivo or here in the courtroom, then a referral to the Competency Remediation Program. At this competency hearing, the prosecutor argued that J.D. “was

found competent in previous cases, and he’s older now and he’s still competent.”

J.D.’s attorney argued that “competency is fluid. And I would stipulate to Dr. Ezzo’s

report, and ask that reasonable accommodations be afforded in the form of

participation in . . . the Remediation Program.” J.D.’s guardian ad litem argued that

“the Remediation Program would be in [J.D.’s] best interest. That would best ensure

that he is able to truly understand and assist his attorney in his defense.”

The court found at the hearing that “at this time there is not

competency, but that [J.D.] has the opportunity to become competent by

participating in the court Remediation Services.” The court also noted that J.D. had

participated in this Remediation Program previously. The court ordered J.D. into

the Remediation Program and released him from home detention with an electronic

monitor after hearing that J.D. wanted to get a summer job.

On March 8, 2023, the court issued a journal entry memorializing the

March 3, 2023 hearing and finding that J.D. “is not competent but could likely attain

competency by participating in services specifically designed to help [him] develop

competency.”

The court held a hearing on April 18, 2023, concerning “an updated

report as far as the Competency Remediation, that [J.D.] is halfway through the

programming for that.” According to the court, J.D.’s “compliance has been a little

up and down with that.” The prosecutor, J.D.’s probation officer and J.D.’s guardian

ad litem stated on the record that J.D. was having “issues” including threatening his school. The court remanded J.D. to the Detention Center and ordered that he

continue to participate in the Competency Remediation Program.

On May 2, 2023, the juvenile court’s Diagnostic Clinic issued a

Competency Remediation Termination Summary (“Remediation Summary

Report”) regarding J.D. The Remediation Summary Report stated that J.D. started

the remediation program on March 15, 2023, and completed the program on May 1,

2023. The Remediation Summary Report explained that the program consists of

“Lessons” that are taught concerning the following subjects: Attorney Roles; Court

Process and People; Punishment and Charges; Pleas and Plea Agreements; Telling

Your Story to Your Attorney; Testifying and Courtroom Behavior. The youth

participants are then quizzed on the information presented. The Remediation

Summary Report further explained that the program is “not the same as a

competency to stand trial evaluation.” Rather, it allowed J.D. to “become familiar

. . . with information pertaining to the court process and working with his attorney.”

The Remediation Summary Report concluded that J.D.’s “focus and

motivation varied throughout the program,” with J.D. improving over time and

particularly, when he was remanded to the Detention Center, the “change in service

venue allowed for more frequent meetings and [his] overall work performance was

more thorough and consistent in this setting.” The Remediation Summary Report

further recommended the following “Adaptations to Enhance Understanding” for

J.D.: 1. For any future court hearings, it would be important to confirm that [J.D.] has taken his prescribed medications prior to participating.

2. [J.D.] may benefit from the use of visual and verbal cues from his attorney and appropriate courtroom personnel as reminders about proper court behavior.

3. [J.D.] would likely need to be provided with opportunities for breaks during lengthy court proceedings.

On May 5, 2023, the court issued a journal entry stating, in part, “The

Court and both parties are in receipt of the Competency Remediation Termination

Summary dated May 2, 2023, and completed by the diagnostic clinic. [J.D.’s]

counsel and Guardian ad litem requested that an additional independent evaluation

be conducted.” The court ordered J.D. to undergo a second competency evaluation

and stated that this evaluation shall be completed “not more than [45] calendar days

after the date of this order.”

More than 45 days passed and the court issued a journal entry on July

10, 2023, stating that “the independent evaluation has yet to be completed on the

child.” This journal entry also “relieved [J.D.’s counsel] of any and all further duties

and responsibilities . . . in this case” and appointed J.D. new counsel.

On August 2, 2023, Dr. Bob Stinson submitted his competency

evaluation report of J.D. (the “Second Competency Report”), which concluded that

J.D. was incompetent to stand trial.3 Specifically, Dr. Stinson concluded that J.D. is

3 This report indicated that “the evaluation identified case number DL-22-110282

as the case for which [J.D.] was to be assessed. However, records provided indicate he has two other cases, as well: case number DL-22-104622 and case number DL-23- 105009. This appeal concerns case No. DL-22-104622. The report explained that DL- 22-110282 concerned allegations that on July 2, 2022, J.D. “knowingly caused property capable of factually and rationally understanding the nature and objective of the

proceedings against him. However, . . . due to problems caused by mental illness

and developmental disabilities (i.e., ADHD, DMDD, ODD, mild intellectual

disability / borderline intellectual functioning), he is currently incapable of assisting

in his defense.” The Second Competency Report recommended that “a residential

setting is the least restrictive setting in which to provide [J.D.] with competency

attainment services at this time due to his significant emotional and behavioral

problems . . . .”

The Second Competency Report noted that on June 28, 2023, Dr. Bob

Stinson interviewed J.D. for approximately one hour at the Detention Center. Dr.

Stinson’s associate interviewed two of J.D.’s case workers from CCDCFS and J.D.’s

guardian ad litem. Attempts were made to interview J.D.’s first attorney, his second

attorney and his mother. These attempts were unsuccessful. The Second

Competency Report also noted that J.D. terminated the competency evaluation

early because he no longer wanted to participate.

The court did not hold a subsequent hearing to determine J.D.’s

competency as required by R.C. 2152.58(A).

damage [at the] Detention Center [by] throwing objects, overturning tables, and throwing shoes which broke ceiling tiles after he ‘popped’ the locks on the door.” The report also explained that DL-23-105009 concerned allegations that on April 11, 2023, J.D. “showed videos of himself in a stolen vehicle with a pistol in his lap which had an extended magazine and was making threats that he would ‘shoot up the school.’” On November 1, 2023, the court, sua sponte,4 issued a journal entry

ordering a third competency evaluation of J.D. The court further ordered that the

competency assessment report be filed no later than 45 days after the date of the

court order. Dr. Lynn Williams authored this report (the “Third Competency

Report”) on December 27, 2023 and found that J.D. was competent to stand trial.

In the Third Competency Report, Dr. Williams noted that “[t]here have been

significant behavioral problems in the [Detention Center] and at school” concerning

J.D. The Third Competency Report further noted that in September 2023, J.D. was

charged in another delinquency case, this time with an allegation of assault.

The Third Competency Report stated that J.D. “approached the . . .

evaluation in an oppositional manner, initially asking to refuse the interview.”

Furthermore, J.D. “proceeded to answer ‘I don’t know’ to most questions asked.”

Dr. Williams stated that “[b]ecause J.D. had inconsistent engagement in the

evaluation process, [she] will rely on what was able to be ascertained during the

interview as well as collateral sources of information . . . .” Dr. Williams stated in

the report that she “ended the interview when it became clear that the youth was not

adequately engaging in the assessment process.”

In the Third Competency Report, Dr. Williams concluded that,

despite J.D.’s “limited cognitive capacity,” oppositional tendencies and mental

4 At the January 24, 2024 competency hearing, the court stated that “on August

31st . . . there was a request to have a second Post-Remediation Evaluation done by the Diagnostic Clinic, as well, and that was by the State of Ohio.” The prosecutor agreed with the court’s statement. However, nothing in the record documents the State’s request, and it appears that the court issued its November 21, 2023 journal entry sua sponte. health diagnosis, “he has the capacity to engage meaningfully if he chooses to do so.”

The report ultimately concluded that J.D. “has an ability to understand and

appreciate the nature and objective of the proceedings against him and is able to

assist in his own defense.”

On January 24, 2024, the court held a second competency hearing and

found J.D. competent. At this hearing, it was established that, because no

competency finding had been made or journalized by the court in its December 7,

2022 referral to the Remediation Program, the Diagnostic Clinic “never actually

saw” J.D. until May 2023, and “[t]hey were unable . . . to do remediation . . .” in a

timely manner. According to J.D.’s attorney, J.D. “is a young man that has,

unfortunately, fallen through the cracks.”

On February 27, 2024, the court issued a journal entry memorializing

the January 24, 2024 hearing. This journal entry stated in part as follows:

The recommendation by [Dr. Stinson] was for residential treatment to stabilize [J.D.’s] behavior and mental health but that he does not require that restrictive of a setting for the purposes of competency attainment services and those could be completed in the community following residential treatment.

Pursuant to R.C. 2152.59, this recommendation is outside the Court’s authority in this matter. The Court is unable to refer a child whose competency is at issue and has not been adjudicated of any offense to a residential treatment facility for anything other than competency attainment services.

On March 12, 2024, the court held an adjudication hearing on three

new cases concerning J.D. at which J.D. admitted to additional offenses. The court

did not proceed to disposition on the three new cases. However, the court stated on the record that “a Residential Treatment Facility or . . . a Community Corrections

Facility would be in [J.D.’s] best interest at this time.” The court referred “this

matter to our Placement Department to look for the best placement to fit for you.”

The court asked J.D. if he had any questions, and J.D. replied, “No. I’m just going

to keep doing good.” The court told J.D., “It’s going to be like a therapeutic

environment that you’re going to go to.”

On April 22, 2024, the court held a dispositional hearing on this case

and J.D.’s three new cases. The court also attempted to hold an adjudication hearing

on yet another case concerning J.D., but the court found that J.D. was not “in the

mood to do that,” after he answered, “No. I don’t understand none of that” when

asked if he understood his rights. J.D. requested that the court just send him to

ODYS.

Carly Keller with Placement Planning spoke at J.D.’s dispositional

hearing and stated that she “sent out referrals to both Residential Treatment

Facilities and Community Correctional Facilities.” Keller further testified that there

were not “any acceptances.” Keller stated that, as an example, J.D. was “declined”

at one particular facility “either due to his — unfortunately, his low IQ and cognitive

ability to understand their treatment programming.” Keller also stated that some

facilities “are already at capacity.” Keller set forth one other example of a facility at

which J.D. had an interview, “however, . . . the person reported that he was not

cooperative during that interview.” A CCDCFS representative spoke at J.D.’s dispositional hearing and

stated that, “[u]nfortunately, he has not been accepted to any placements that the

Agency has reached out to.” It was established at this hearing that J.D. had been at

the Detention Center for 370 days because it “happened to be the only place that he

could be [placed] at.”

The court sentenced J.D. to time served for the new cases and, on this

aggravated robbery case, committed J.D. to ODYS for a minimum of three years and

a maximum “not to exceed [J.D.’s] attainment of the age of [21] years.” The court

issued a corrected journal entry on May 1, 2024 committing J.D. to ODYS for a

minimum of two years and a maximum “not to exceed [J.D.’s] attainment of the age

of [21] years.”

J.D. appeals and raises the following assignments of error for our

review:

I. J.D. was deprived of his constitutional right to effective assistance of counsel when counsel failed to object to a plea that was not knowingly, intelligently, and voluntarily given and when counsel failed to object when the juvenile court did not comply with the mandatory timing requirements in the competency statutes.

II. The juvenile court erred when it failed to adhere to the statutory timing requirements for conducting competency evaluations and hearings in violation of R.C. 2152.57, R.C. 2152.58, and R.C. 2152.59.

III. The juvenile court abused its discretion when it allowed J.D. to proceed to disposition when he was incompetent. IV. The juvenile court erred as a matter of law when it found that it did not have the authority to order J.D. to undergo residential competency treatment.

II. Competency Hearing Testimony

The following testimony was presented at the January 24, 2024

second competency hearing.

a. Bridget Bartos

Bridget Bartos (“Bartos”) testified that she is an administrative

assistant at the Juvenile Court Diagnostic Clinic and, in her role as administrative

assistant, she conducts the Competency Remediation Program. The primary goal of

this program “is for the youth involved to gain a better understanding of the court

process, to be able to work with their attorney, and to be able to understand the

nature and seriousness of their charge.” There are eight “modules” to the program

and participation takes a minimum of eight weeks depending on scheduling.

Typically, each session is one hour long and occurs once per week.

According to Bartos, J.D. has completed the program twice and she

was the “primary teacher” the second time he participated in the program. Bartos

testified that J.D. was cooperative and had a good attitude “most of the time.” J.D.

successfully completed the program in nine sessions, including “pre-tests,” the

“lesson” and “post-tests.” Asked if it would surprise her that J.D.’s “reported IQ [is]

in the 50 range,” Bartos answered, “No.” b. Dr. Lynn Williams

Dr. Williams testified that she is employed as a forensic psychologist

in the Cuyahoga County Juvenile Court Diagnostic Clinic and part of her job is to

complete competency assessments. Dr. Williams testified that on December 15,

2023, she completed a competency evaluation regarding J.D. and on December 27,

2023, she authored the Third Competency Report. According to Dr. Williams, this

evaluation was a “post-remediation” assessment, because J.D. had completed the

remediation program for the second time at the time that she evaluated him. Dr.

Williams testified that the remediation program is “a structured educational

program that reviews the core [concepts] related to competency sufficient to meet

the Ohio Statute for the standards.”

As part of the evaluation, Dr. Williams spoke with Bartos. It was Dr.

Williams’ understanding that, during the remediation program, there were “a few

instances where [J.D.] had some behavioral difficulties but overcame them and was

able to remain on task.”

Dr. Williams testified that competency evaluations typically last

“about an hour.” In J.D.’s case, however, the interview lasted 20 minutes because

“it was clear he wasn’t meaningfully engaged.” Dr. Williams terminated her

interview with J.D. because “he just kept saying I don’t know.”

Dr. Williams learned from someone at the Detention Center that J.D.

“cut off his electronic monitoring bracelet and was gone for the weekend, and then

after a court hearing, he had no violations from February 16th to March 3rd.” According to Dr. Williams, J.D. “had some behavioral problems” while he was at the

Detention Center. Dr. Williams specified that J.D.’s “poor behavior” included “a lack

of motivation, refusal to work on assignments, outbursts, engaging in inappropriate

conversations, and using inappropriate language.” Dr. Williams testified that she

learned from another person at the Detention Center that J.D. was compliant with

his mental health medications.

According to Dr. Williams, J.D. received “special education” at school

dating back to 2016, when “he qualified in the category of emotional disturbance

. . . related to his [ADHD] diagnosis and [DMDD] diagnosis.” Dr. Willams further

testified that J.D. has also been diagnosed with ODD and Primary Insomnia and he

reads at a first-grade level. According to Dr. Williams, someone with these same

diagnoses, including someone with an IQ in the “56, 58 . . . range,” can be found

competent. To put J.D.’s IQ into context, Dr. Williams explained that “generally 70

to 56 would [be] mild” intellectual disability and “55 or under is considered

moderate. . . .”

As to her interview with J.D., Dr. Williams testified that he was

“minimally cooperative,” he wanted to refuse the evaluation and his participation

was “very poor.” Dr. Williams testified that J.D.’s evaluation was “partially done,”

rather than “fully done” because of J.D.’s minimal participation. Dr. Williams

testified that she relied on “collaterals” to form her opinion of J.D. because “there

wasn’t much interviews.” Dr. Williams testified that, in her opinion, J.D.’s “diagnoses and

mental health conditions” do not prevent him from assisting in his own defense, nor

do they prevent him from understanding the nature and objectives of his legal

proceeding. According to Dr. Williams, J.D. “is able to focus, if he chooses to.”

On cross-examination, Dr. Williams testified that although she

reviewed the Second Competency Report, she did not talk to Dr. Stinson and she did

not include any of the findings from his report in her report. Dr. Williams further

agreed that “someone with [J.D.’s first-grade] reading level would require someone

[else] actually reading to him . . .” and that J.D. would not be able to “read the

documents that are before him” as part of this case.

Dr. Williams testified about a previous competency evaluation of J.D.

that was conducted when J.D. was 12 years old. This report concluded that J.D. was

“not competent and . . . not remediable.”

c. Dr. Amy Justice

Dr. Amy Justice (“Dr. Justice”) testified that she runs the Remediation

Program and Bartos is the facilitator. Asked about the outcome of J.D.’s

participation in this program, Dr. Justice replied, “You know, I didn’t review the

paperwork for this particular youth.” Dr. Justice was handed J.D.’s Remediation

Termination report and, after reviewing it, she agreed that J.D. successfully

completed the program.

According to Dr. Justice, a “good majority of the children who we have

in the program do have lower IQs,” intellectual disabilities and mental health concerns. Dr. Justice testified that Bartos structured the program to accommodate

someone who has a general education and someone who has a learning disability.

Although the material is still the same, Bartos “makes it where it’s interactive. She

has games. She has puzzles. She has slides. She has things to look at. She has things

that are just oral or verbal. So it really does touch at children who are visual learners,

those who are kinesthetic learners, and those who are verbal learners.”

d. Dr. Bob Stinson

Dr. Bob Stinson (“Dr. Stinson”) testified that he evaluated J.D. for

competency to stand trial on June 28, 2023, and issued the Second Competency

Report on August 2, 2023. Dr. Stinson interviewed J.D. and read the First

Competency Report, the Competency Remediation Termination Summary and

records from the “Positive Education Program” from March 2020 through February

2023. Dr. Stinson also “followed up” with J.D.’s case manager and this person’s

supervisor at CCDCFS as well as J.D.’s guardian ad litem. Dr. Stinson testified as

follows about his interview with J.D.:

So as I outlined in my report, he was difficult to interview. He — you know, I would describe him as irritable. You know, we said in the report that we never really felt like we established a full rapport with him. He refused to answer certain questions.

More things I think were frustrating for him, so if it — there were things about Children’s Services, for example, or why he was living with his aunt instead of his mom, why he was expelled from school. Things that frustrated him, he would just refuse to answer.

So — which may have been kind of a mal-adaptive attempt to cope, which is kind of what we call avoidance coping. If I just avoid it, then that’s how I’m going to deal with it. But in any event, there were certain things that he just wouldn’t talk to us about.

There were things that he was quick to say I don’t know about, even though I suspected maybe he did know. But he was frustrated, easily frustrated, had poor frustration tolerance.

We did get some information from him. We put that in our report.

Ultimately, though, he walked out of the interview before we wanted it to be over. We had — We really questioned him about most of the things we wanted to question him about, but as is typical with the evaluations I do, we’ll perhaps do some teaching along the way or some coaching along the way, and then at the end of the evaluation, say, look, we want to go back over some things that we talked about earlier, to kind of assess whether he comprehended that information, retained the information, can share it back.

And that’s when he said, I’m not — I’m not answering questions a second time, I’m done, and walked out.

Dr. Stinson testified that J.D. “has a long history of mental health

problems,” including the following:

He’s been in special education for emotional disturbance since kindergarten, since he was five years old, diagnosed with ADHD since he was at least ten years old, been on medications, psychotropic medications, since he was ten years old.

Had a suicide attempt when he was eleven years old. Had been psychiatrically hospitalized at MetroHealth for aggression and behavior problems. As I said, he was on an IEP since kindergarten. He went in the PEP Program at age nine.

And then he’s had several diagnoses. He’s been diagnosed with [ADHD]. He’s been diagnosed with [DMDD]. He’s been diagnosed with an Other Trauma Disorder. And he’s obviously had a number of behavior problems.

In addition to those kind of primary mental health problems, he also has limited cognitive abilities, so he’s been diagnosed at times with Borderline Intellectual Functioning . . . .” Asked about J.D.’s IQ, Dr. Stinson testified as follows:

[J.D.] had his IQ tested three different times and has had remarkably consistent scores, full scale IQ of 59, 57, and 58. Those are — Those are very low scores, below, you know, the .01 percentile, meaning below — if you lined up a thousand people, he’d be at the lowest end.

So he’s got very, very low scores.

There’s some indication that those scores might be an under estimate of his true abilities, because during testing, he had poor frustration tolerance, he was quick to give up sometimes.

But it’s also worth noting, those scores are consistent with his adaptive functioning, they’re consistent with his academic achievement scores, and so that lends some credibility to those scores.

Maybe they under estimate his true abilities, but they appear to reflect his actual functioning, his actual performance.

Dr. Stinson testified that “there was no evidence [J.D.] was feigning

. . . . I got the impression that [J.D.], quite contrary to feigning deficits, tries to mask

his deficits. He gets frustrated quickly if he doesn’t understand what’s going on, and

then he just tries to detach, not talk, avoid, rather than show or highlight his

deficits.”

Dr. Stinson testified that J.D. “has a fairly significant trauma history,”

starting with his father being murdered when J.D. was two months old. J.D. “lost a

sibling” when J.D. “was about four or five years old.” J.D.’s maternal grandfather

was incarcerated and, when the grandfather got out of prison, he began spending

time with J.D. CCDCFS has been involved with J.D.’s family since before J.D. was

born. Dr. Stinson testified that the CCDCFS “case worker said really every year there was pretty much something being reported. Typically, neglect, because of the living

arrangements he was in, physical abuse, or witnessing severe domestic violence.”

According to Dr. Stinson, J.D. “denied engaging in behaviors that

would be consistent with the development of a conduct disorder. . . . But the records

clearly indicate, and others would suggest, that he is engaged in significant

behavioral problems.” Dr. Stinson listed these “problems” as follows: “refusing to

go to school, defiance, noncompliance at home, having frequent outbursts, taking

off when he wasn’t allowed to, getting in fights, being violent, being combative,

hanging out with negative peers, being verbally and physically aggressive. Perhaps

getting involved in gangs when he was associated with negative peers.”

Dr. Stinson testified that J.D.’s diagnosis of DMDD is consistent with

J.D.’s “long history of irritability and anger outbursts that are disproportionate to

any provocation.” Dr. Stinson explained that DMDD is more than “someone who’s

just . . . an angry kid . . . .” Rather, DMDD categorizes “a person who for years has

not been able to get his anger under control and has, you know, repeated outbursts

weekly over little things, and his outbursts are completely out of proportion to those

things.”

According to Dr. Stinson, J.D.’s history at school was “much like” his

history at home. J.D. was “having disruptive behaviors, he’s acting out, he can’t

control his impulses, can’t control his emotions, has difficulty comprehending, is

having difficulty getting along with others.” Dr. Stinson further testified that,

because of J.D.’s low I.Q. and “low adaptive functioning,” J.D. is “essentially unable to read and write.” Dr. Stinson noted that, although J.D. is being treated with

medications for ADHD, he is “not getting medications” and he is “not getting any

kind of counseling or therapy” for his DMDD or “his Trauma Disorder.” Dr. Stinson

explained further:

So those conditions are untreated and it’s — I mean, the ADHD is problematic. It contributes to impulsivity. But really it’s the [DMDD] and the Trauma Disorder that I think are causing his major impairments in terms of functional impairment for competency.

Being able to tolerate stress, being able to tolerate frustration, being able to engage appropriately with others, being able to hear things you don’t want to hear.

Until those are treated, I don’t anticipate that there’s going to be much change in his functioning.

Dr. Stinson testified that DMDD has “a pretty high bar to get

diagnosed with. You have to have repeated disproportionate anger outbursts, on

average three or more times a week for a year or longer.” Dr. Stinson testified that,

although he sees no “fault with” recommending that J.D. complete the Remediation

Program, “that’s not addressing the problems that I think are interfering with his

competency.” Dr. Stinson continued:

But the real issue is this emotional dysregulation. It’s the second prong of competency. It’s the ability to assist, the ability to stay present in the courtroom, track proceedings, not get upset if you’re paying attention, not checking out because you don’t want to get upset, being able to consult with your attorney, talk about your charges, talk about the evidence against you. That’s the issue.

Dr. Stinson stressed that a youth “can successfully complete [a

competency remediation program] and not be competent to stand trial.” Conversely, a youth “can unsuccessfully go through [a competency remediation

program] and be competent to stand trial.” In other words, Dr. Stinson explained

that there is more to competency than a remediation program.

Dr. Stinson testified about the Third Competency Report, which found

that J.D. was competent, as follows:

I don’t think [Dr. Williams’] findings were drastically different than what I and Dr. Ezzo saw. I think she just reached a different opinion than what I and Dr. Ezzo did.

You know, I think she was only able to spend 20 minutes with [J.D.]. And a point I would make, and I made this to my [colleague] when we left after [J.D.] walked out on us is, we’re trained psychologists trying to use all of our skills to manage his emotions and keep him in the room while we’re having a conversation about these things.

And I couldn’t do it, I couldn’t do it with the help of [my colleague], Dr. Williams couldn’t do it. . . .

So I’ve got to believe if she couldn’t get him to stay in the room, that it’s going to be hard for a lawyer to get him to manage those same emotions.

Dr. Stinson took exception to one thing that Dr. Williams said in the

Third Competency Report — “something to the effect of, you know, he can do things

if he chooses to.” According to Dr. Stinson, “If it was that easy to educate someone

with an IQ of 58, then we would have just told his teachers a long time ago, Hey, just

simply explain things to him and he’ll get it. That’s not really how it works.

Particularly in an emotionally charged environment like a courtroom where he’s

getting frustrated and things like that.” Dr. Stinson concluded, “If that was the case,

[J.D.] wouldn’t be reading at a first grade level right now.” Dr. Stinson opined that “the only reason [Dr. Williams] can get to the

second prong [of the competency test] and say that [J.D.] can assist in his defense is

because she says, well, if he chooses to.” According to Dr. Stinson, “what’s getting

in the way of [J.D.] choosing to” is “since age five, emotional reactivity, it’s poor

frustration tolerance, it’s, you know, anger outbursts that are disproportionate to

any provocation.” Dr. Stinson testified that Dr. Williams’ opinion “oversimplifies

and is dismissive of, you know, ten, fifteen years of, even at his young age, of

documentation that he’s got mental health problems that interfere with him actually

doing that.”

Dr. Stinson concluded that J.D. “likely at least has the basic

understanding of the nature and the objective of the proceedings.” However, Dr.

Stinson was “much more concerned about [J.D.’s] ability to assist in his defense.”

Dr. Stinson opined that J.D. “requires residential placement . . . until he gets [his

mental-health issues] managed. . . . I would recommend a residential treatment plan

. . . to address his emotional disorder. I think once that’s addressed, the competency

stuff will fall in place.”

Dr. Stinson concluded that, without this treatment, J.D. fails the

second prong of the competency test. Dr. Stinson agreed that competency is “fluid,”

meaning that at a certain point in time, “an individual like [J.D.] may be competent,

may be functioning, able to assist in his defense, and other times, not . . . .”

Asked about J.D. being manipulative throughout the Remediation

Program, Dr. Stinson replied as follows: “I don’t doubt that he can be manipulative. I just don’t think that at age five and eight and nine and ten and eleven, when we

saw all these problems starting, that he was thinking ahead that I’m going to lay the

bed-work for feigning problems in court ten years from now.”

Dr. Stinson testified that J.D.’s “combination of disorders . . . all need

to be addressed.” Dr. Stinson recommended a residential treatment program as the

“best course” for J.D. Ultimately, Dr. Stinson concluded that J.D. was incapable of

assisting in his own defense due to “behavioral” issues and not “being able to control

his emotions.” Dr. Stinson further testified that it was “fair to say” that J.D. “has

fallen through the cracks with getting his trauma and behavioral disabilities or

disorders treated.”

The court asked Dr. Stinson if his “residential facility

recommendation” was made “to address competency attainment . . . or to address

the underlying . . . diagnoses.” Dr. Stinson replied, “I think to address the underlying

problem” and explained that, for example, if this case was dismissed, J.D. would still

need the treatment. Dr. Stinson further testified that “once that’s treated, then I

think competency will be much clearer.”

III. Law and Analysis

a. Overview of Competency Evaluations in Juvenile Court

“As the United States Supreme Court has long held, due process

protections must be afforded to children.” State v. D.T., 2024-Ohio-4482, ¶ 64 (8th

Dist.). See also In re Gault, 387 U.S. 1, 30-31 (1967); State v. Aalim, 2017-Ohio-

2956, ¶ 23. “Fundamental to our adversarial system of justice is the due process right of a criminal defendant who is legally incompetent not to be subjected to trial.”

State v. Were, 94 Ohio St. 3d 173, 174 (2002). Ohio courts have consistently held

that “the right not to be tried or convicted while incompetent is as fundamental in

juvenile proceedings as it is in criminal trials of adults.” In re Bailey, 2002-Ohio-

6792, ¶ 10 (2d Dist.).

The Ohio Supreme Court has held that a “defendant is rebuttably

presumed to be competent to stand trial.” State v. Lawson, 2021-Ohio-3566, ¶ 48.

A “competency determination is necessary only when a court has reason to doubt

the defendant’s competence.” Godinez v. Moran, 509 U.S. 389, 401, fn. 13 (1993).

Juvenile competency determinations are governed by R.C. 2152.51

through R.C. 2152.59. Competency concerns “a child’s ability to understand the

nature and objectives of a proceeding against the child and to assist in the child’s

defense.” R.C. 2152.51(A)(1). “A child is incompetent if, due to mental illness, . . .

developmental disability, or . . . lack of mental capacity, the child is presently

incapable of understanding the nature and objective of proceedings against the child

or of assisting in the child’s defense.” Id.

Pursuant to R.C. 2152.52(A)(1), “[i]n any proceeding under this

chapter . . . any party or the court may move for a determination regarding the child’s

competency to participate in the proceeding.” Within 15 “business days” after a

competency motion is made, “the court shall do one of the following:”

Make a determination of incompetency under division (B) of section 2152.52 of the Revised Code; Determine, without holding a hearing, whether there is a reasonable basis to conduct a competency evaluation;

Hold a hearing to determine whether there is a reasonable basis to conduct a competency evaluation.

R.C. 2152.53(A). “If the court holds a hearing, it shall make its determination within

ten business days after the conclusion of the hearing.” R.C. 2152.53(B).

If the court orders a competency evaluation, the evaluator “shall

submit to the court a written competency assessment report,” which “shall include

the evaluator’s opinion as to whether the child, due to mental illness, . . .

developmental disability, or . . . lack of mental capacity, is currently incapable of

understanding the nature and objective of the proceedings against the child or of

assisting in the child’s defense.” R.C. 2152.56(A). Additional requirements for a

competency evaluation report are found in R.C. 2152.56(C) and (D):

(C) . . . If the evaluator concludes that the child’s competency is impaired but that the child may be enabled to understand the nature and objectives of the proceeding against the child and to assist in the child’s defense with reasonable accommodations, the report shall include recommendations for those reasonable accommodations that the court might make. If the evaluator concludes that the child’s competency is so impaired that the child would not be able to understand the nature and objectives of the proceeding against the child or to assist in the child’s defense, the report shall include an opinion as to the likelihood that the child could attain competency within the periods set forth in division (D)(2) of section 2152.59 of the Revised Code.

(D) If the evaluator concludes that the child could likely attain competency within the periods set forth in division (D) (2) of section 2152.59 of the Revised Code, the competency assessment report shall include both of the following: (1) A recommendation as to the least restrictive setting for child competency attainment services that is consistent with the child’s ability to attain competency and the safety of both the child and the community;

(2) A list of the providers of child competency attainment services known to the evaluator that are located most closely to the child’s current residence.

Pursuant to R.C. 2152.57(A), competency evaluation reports shall be

submitted to the court “not more than [45] days after the order appointing the

evaluator is issued.” The court is required to hold a competency hearing not more

than 30 “business days after receiving an evaluation . . . .” Additionally, “the court

shall make a written determination as to the child’s competency or incompetency

based on a preponderance of the evidence within [15] business days after completion

of the hearing.” R.C. 2152.58(D)(1).

Pursuant to R.C. 2152.59(C), if the court determines, after a

competency hearing, that the child “is not competent but could likely attain

competency by participating in services specifically designed to help the child

develop competency, the court may order the child to participate in services

specifically designed to help the child develop competency . . . .” R.C. 2152.59(D)

governs “competency attainment services” and states, in part, that the services “shall

be provided in the least restrictive setting that is consistent with the child’s ability to

attain competency and the safety of both the child and the community.” R.C.

2152.59(D)(1). As to the “maximum periods of participation” in these services, R.C.

2152.59(D)(2)(b) provides, in part, that if the child “is ordered to receive competency attainment services that are provided in a residential setting that is

operated solely or in part for the purpose of providing competency attainment

service, the child shall not participate in those services for a period exceeding . . . six

months if the child is charged with an act that would be a” first-degree felony “if

committed by an adult . . . .”

b. Ineffective Assistance of Counsel

In J.D.’s first assignment of error, he argues that his counsel was

ineffective in two respects: first, when counsel failed to object to J.D.’s admission to

aggravated robbery, which was taken while J.D. was incompetent and second, when

counsel failed to object to the court not complying with various timing requirements

in the juvenile competency statutes. The overall gist of J.D.’s first argument under

this assignment of error is that his counsel was ineffective for failing to raise the

issue of competency prior to J.D.’s admission and failing to file a motion to withdraw

J.D.’s admission. Specifically, J.D. argues in his appellate brief regarding his first

argument under this assignment of error as follows:

The issue of J.D.’s competency was not raised until after he was adjudicated delinquent. And, it was not raised by his attorneys; rather, it was raised by a committee of court employees who met with J.D. to determine what his disposition should be. Once the issue was raised, J.D. was found incompetent. Instead of protecting his statutory and constitutional rights, his attorneys did nothing. Thus, his attorneys were ineffective and J.D.’s adjudication must be reversed.

To succeed on a claim of ineffective assistance of counsel, a juvenile

must establish that his or her attorney’s performance was deficient and that the

juvenile was prejudiced by the deficient performance. Strickland v. Washington, 466 U.S. 668 (1984). However, “a court need not determine whether counsel’s

performance was deficient before examining the prejudice suffered by the [juvenile]

as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to

grade counsel’s performance.” Id. at 697. See also State v. Bradley, 42 Ohio St.3d

136 (1989). “The Sixth Amendment to the United States Constitution guarantees an

accused juvenile the same rights to effective assistance of counsel as an adult

criminal defendant.” In re M.B., 2018-Ohio-4334, ¶ 54 (8th Dist.).

i. Failing to Raise the Issue of Competency Prior to J.D.’s Admission and Failing to File a Motion to Withdraw J.D.’s Admission

In this case, J.D. entered an admission to aggravated robbery with a

firearm specification and a forfeiture specification, on September 13, 2022. During

the plea hearing, the following colloquy took place:

THE COURT: Okay. And so you’re making a knowing decision? You understand what you’re doing, correct?

J.D.: Yes, your Honor.

THE COURT: Intelligent decision; is that correct? Are you making an intelligent decision?

J.D.: No, your Honor.

THE COURT: A smart — intelligent — A smart decision?

THE COURT: You’re not making a smart decision? Let me — Are you making an intelligent decision?

J.D.: What did you say?

THE COURT: Are you making an intelligent decision? J.D.: Yes, your Honor.

THE COURT: Okay. And it’s voluntary. No one is making you make this decision; is that correct?

J.D.: No, your — Yes, your Honor.

The juvenile court accepted J.D.’s admission to aggravated robbery

and ordered the ODYS Committee to review J.D.’s case and make a recommendation

regarding disposition. The Referral Form regarding this case which is dated October

6, 2022 — three weeks after J.D. entered his admission — details J.D.’s “Probation

History,” including the dismissal of three cases in 2018 and 2019 because J.D. was

found not competent to stand trial. The Referral Form recommends that J.D. be

placed in a residential treatment facility. “[J.D.] would benefit from a residential

placement. [J.D.] needs to address peer relationships, mental health concerns,

education and family interaction. [J.D.] was placed on Probation and although he

was terminated from placement the court was under the impression that [J.D.] was

being placed by CCDCFS in a residential facility.”

The Referral Form resulted in the court ordering that J.D. undergo a

competency evaluation which was conducted by Dr. Ezzo on October 26, 2022. Dr.

Ezzo issued the First Competency Report on October 31, 2022, and recommended

that J.D. needed “reasonable accommodations during court proceedings,” or, if the

“accommodations do not result in an understanding and appreciation of the core

statutory requirements [for] competency to stand trial,” then J.D. needed a “referral

to the Diagnostic Clinic’s Competency Remediation Program . . . .” On December 7, 2022, the juvenile court referred J.D. to the

Remediation Program. However, this referral did not result in J.D. participating in

the Remediation Program. The court held a competency hearing on March 3, 2023,

and found that J.D. was not competent to stand trial but that he had “the

opportunity to become competent by participating in the court Remediation

Services.”

J.D. completed the Remediation Program on May 1, 2023. On May 5,

2023, the court issued a journal entry ordering J.D. to undergo a second competency

evaluation at the request of J.D.’s counsel and J.D.’s guardian ad litem. On July 10,

2023, the court issued a journal entry finding that the competency evaluation “has

yet to be completed.” In this journal entry, the court also relieved J.D.’s counsel of

any further representation of J.D. and appointed new counsel.

On August 2, 2023, Dr. Stinson found J.D. incompetent to stand trial.

On November 3, 2023, the court ordered J.D. to undergo a third competency

evaluation. On December 27, 2023, Dr. Williams found J.D. competent to stand

trial. The court held another competency hearing on January 24, 2024, and on

February 27, 2024, issued a journal entry finding J.D. “competent to participate in

this proceeding.” The court concluded that Dr. Stinson’s recommendation “was for

residential treatment to stabilize [J.D.’s] behavior and mental health” but found

that, “[p]ursuant to R.C. 2152.59, this recommendation is outside the Court’s

authority . . . .” The court proceeded to disposition on April 22, 2024, and committed

J.D. to ODYS. At the time that J.D. admitted to aggravated robbery, which was on

September 13, 2022, his counsel had reason to believe that J.D.’s competency was

at issue. A cursory look at J.D.’s history with the juvenile justice system shows that

he had been found incompetent in three previous cases. On October 6, 2022,

approximately three weeks after J.D.’s admission in this case, the juvenile court’s

Diagnostic Clinic raised the issue of J.D.’s competency. J.D. was found incompetent

on March 3, 2023, and he was found competent on January 24, 2024.

At no time during the pendency of this case did either of J.D.’s counsel

move to have J.D.’s admission vacated because of the realistic possibility that J.D.

was incompetent when he entered it. We hold that both of J.D.’s counsel were

deficient in this failure. See State v. Berry, 72 Ohio St.3d 354, 359 (1995) (“The right

to a hearing on the issue of competency rises to the level of a constitutional

guarantee where the record contains ‘sufficient indicia of incompetence,’ such that

an inquiry into the defendant’s competency is necessary to ensure the defendant’s

right to a fair trial.”). Here, there was more than sufficient indicia of incompetency

to require an inquiry into J.D.’s competence.

The only “competency attainment service” J.D. received during the

pendency of this case was the court’s Remediation Program. Evidence in the record

consistently shows that this program educates youth about court processes and

procedures. The remediation program does not include “treatment” for any of J.D.’s

mental-health disorders or intellectual disabilities, as would be typical for

competency restoration of adults in the criminal justice system. See, e.g., R.C. 2945.38(B)(1)(a)(i) (“If . . . the court finds that the defendant is incompetent to stand

trial and that there is a substantial probability that the defendant will become

competent to stand trial within one year if the defendant is provided with a course

of treatment, the court shall order the defendant to undergo treatment.”).

In the juvenile system different words are used regarding competency

than in the adult criminal justice system. Pursuant to R.C. 2152.29(C), if a juvenile

court “determines that a child is not competent but could likely attain competency

by participating in services specifically designed to help the child develop

competency, the court may order the child to participate in services specifically

designed to help the child develop competency at county expense.”

J.D.’s counsel’s failure to move to withdraw J.D.’s admission based on

competency issues prejudiced J.D. because, had J.D.’s admission been vacated,

evidence in the record indicates that J.D. would have been found incompetent at the

time he entered his admission. Furthermore, his competency would have been

addressed in a more timely manner and he would have been given the opportunity

to participate in services designed to attain competency prior to entering an

admission or proceeding to trial.

We hold that both of J.D.’s trial counsel were ineffective for failing to

raise the issue of J.D.’s competency prior to his admission to aggravated robbery and

for failing to move to withdraw J.D.’s admission.5

5 We note that J.D.’s appellate counsel is not the same as either of J.D.’s trial

counsel. ii. Failure to Object to the Court not Complying with Various Timing Requirements in the Juvenile Competency Statutes

The second part of J.D.’s first assignment of error concerns counsel’s

failure to object to the court’s failure to follow the timing requirements of the

juvenile competency statutes. “The failure to object to error, alone, is not enough to

sustain a claim of ineffective assistance of counsel. To prevail on such a claim, a

defendant must first show that there was a substantial violation of any defense

counsel’s duties to his client and, second, that he was materially prejudiced by

counsel’s ineffectiveness.” State v. Holloway, 38 Ohio St.3d 239, 244 (1989).

J.D.’s second assignment of error alleges that the court erred by failing

to follow the statutory timing requirements outside of the realm of ineffective

assistance of counsel. For the same reasons we find plain error in relation to J.D.’s

second assignment of error in the next section of this opinion, we find that counsel

was ineffective in failing to object to these errors.

Accordingly, J.D.’s first assignment of error is sustained.

c. Statutory Timing Requirements for Conducting Competency Evaluations of Juveniles

In J.D.’s second assignment of error, he argues that the “juvenile court

erred when it failed to adhere to the statutory timing requirements for conducting

competency evaluations and hearings . . . .” J.D. further argues that the “juvenile

court violated [his] right to due process when it made its competency determination

outside of the hearing requirements set forth in R.C. 2152.27 – R.C. 2152.59.” We address the timeliness issue as it relates to the following instances raised by J.D. in

his appellate brief.

The First Competency Report was filed with the court on October 31,

2022. Pursuant to R.C. 2152.57(A), the court was required to hold a competency

hearing not more than 30 “business days after receiving” this evaluation. The court

held a competency hearing 123 days later on March 3, 2023, in violation of R.C.

2152.57(A).

The court ordered the second competency evaluation on May 5, 2023.

Pursuant to R.C. 2152.57(A), the Second Competency Report should have been filed

with the court within 45 days of this order. Instead, the Second Competency Report

was filed with the court 89 days later, on August 2, 2023. Furthermore, pursuant to

R.C. 2152.57(A), the court was required to hold a competency hearing within 30

business days of August 2, 2023. The court held a competency hearing almost six

months later on January 24, 2024, in violation of R.C. 2152.57(A), and, prior to

holding this hearing, the court ordered a third competency evaluation of J.D.

The court ordered the third competency evaluation on November 1,

2023. Pursuant to R.C. 2152.57(A), the Third Competency Report should have been

filed with the court within 45 days of this order. The Third Competency Report was

filed with the court 56 days later, on December 27, 2023, in violation of R.C.

It is undisputed that neither of J.D.’s counsel objected to any of these

examples of untimeliness. Therefore, we review this argument for plain error. “Under the plain-error standard, we will not reverse unless there was an error that

was so plain that it created an ‘obvious defect in the . . . proceedings,’ and the error”

affected the outcome of the proceedings. In re R.H., 2013-Ohio-1030, ¶ 8 (8th Dist.)

quoting State v. Barnes, 94 Ohio St.3d 21, 27 (2002).

A careful reading of the State’s appellate brief shows that it does not

argue against the court’s failure to adhere to various statutory timeframes. In other

words, the State appears to concede that the juvenile court erred. The State,

therefore, only argues that J.D. did not show that he was prejudiced by this failure.

In In re S.D., 2014-Ohio-2528 (8th Dist.), this court reviewed a similar

issue to the one presented here under the following assignment of error: “S.D. was

denied his right to due process of law when the juvenile court determined him

competent to stand trial outside the parameters of R.C. 2152.57(A), 2152.58(A) and

(D), the Fifth and Fourteenth Amendments to the United States Constitution, and

Article I, Section 16 of the Ohio Constitution.” Id. at ¶ 11.

The S.D. Court established that, “[u]nder R.C. 2152.59, once a minor

is found incompetent but able to be restored to competency within a reasonable

time, a plan for restoration services is to be initiated and the child monitored

according to the further provisions within that statute.” Id. at ¶ 27. In S.D., the court

detailed that S.D.’s competency evaluation was submitted 50 “calendar days after

the evaluation was ordered in violation of R.C. 2152.57(A),” which requires the

report to be submitted 45 calendar days after it was ordered. Additionally, the trial

court in S.D. held the competency hearing “on the same day [the evaluation] was submitted to the court in violation of R.C. 2152.28(A),” which requires the court to

hold the hearing “[n]ot less than [15] nor more than [30] business days after

receiving an evaluation . . . .” Furthermore, the trial court in S.D. determined his

competence 20 “business days after the hearing was conducted in violation of R.C.

2152.58(D),” which requires the trial court to “make a written determination as to

the child’s competency or incompetency . . . within [15] days after completion of the

hearing.”

The S.D. Court further explained that, in S.D.’s case, “the trial court

ordered that [S.D.] receive medications and supervision at the detention facility

where he was being housed awaiting adjudication.” Id. The S.D. Court found that

S.D. was restored to competency, and that, although “the evaluations indicated

[S.D.] had significant mental health issues, . . . he was alert, aware of what was going

on around him, and able to assist counsel and participate in the proceedings.” Id. at

¶ 30. The court concluded that “there is no indication that the failure of the trial

court to strictly abide by the temporal requirements set forth in the statute caused

any prejudice to” S.D. Id. The court further concluded that there were no “instances

of conduct that would indicate that [S.D.’s] mental state had changed.” Id. at ¶ 31.

Upon review, we find this case to be different than In re S.D. The

record in this case is replete with examples of how J.D. “fell through the cracks” in

the system. While the juvenile court in S.D. missed the timing requirements by

mere days, the juvenile court in J.D.’s case missed multiple timing requirements by

months and in some instances did not adhere to the statutory requirements at all. The most striking example of prejudice to J.D. was the court’s failure

to adhere to R.C. 2152.58(A), which requires the court to hold a competency hearing

“[n]ot less than [15] nor more than [30] business days after receiving an evaluation

. . .” in relation to the Second Competency Report authored by Dr. Stinson. The

court sua sponte ordered a third competency evaluation of J.D. and held a hearing

on the Second Competency Report and the Third Competency report together on

January 24, 2024, almost six months after receiving the Second Competency

Report. Had the court conducted the hearing according to the statute, the Second

Competency Report, along with the First Competency Report, would have been the

only reports admitted into evidence because they were the only reports that existed

at that time. Both reports indicated that J.D. was incompetent to stand trial at that

time.

We acknowledge that additional competency evaluations are

contemplated by R.C. 2152.57(E), which states as follows: “Before a [competency]

hearing is held . . ., any party may object to the contents of a competency assessment

report and by motion request an additional evaluation,” which shall be completed

within 45 days. There is simply no evidence in the record that any actions were taken

to trigger R.C. 2152.57(E), and there is no evidence in the record that this statute

was followed.

Upon review, we find that J.D. was prejudiced by the court’s failure

to adhere to the timing requirements in the juvenile competency statutes. Accordingly, the court plainly erred, and J.D.’s second assignment of error is

sustained.

d. Failure to Order Residential Competency Treatment

In J.D.’s fourth assignment of error, he argues that the “juvenile

court erred as a matter of law when it found that it did not have the authority to

order J.D. to undergo residential competency treatment.”

In the Second Competency Report, Dr. Stinson concluded by stating,

in part, as follows: “[I]t is important to note that [J.D.] does not need residential

services solely for the purposes of competency attainment and once his behavior and

mental health is stabilized he could attain competency on an outpatient basis.” In

the court’s February 27, 2024 journal entry finding J.D. competent, the court

concluded that Dr. Stinson’s recommendation “was for residential treatment to

stabilize [J.D.’s] behavior and mental health but that he does not require that

restrictive of a setting for the purposes of competency attainment services and those

could be completed in the community following residential treatment.” The court

further concluded that it had no “authority” to follow this recommendation: “The

Court is unable to refer a child whose competency is at issue and has not been

adjudicated of any offense to a residential treatment facility for anything other than

competency attainment services.”

First, we note that J.D. was adjudicated delinquent of aggravated

robbery in this case and we are unsure why the court relied on its apparent inability “to refer a child whose competency is at issue and has not been adjudicated of any

offense . . . .” This scenario does not apply to J.D.

Second, we are guided by R.C. 2152.59, which governs, in part,

“competency attainment services.” Without analyzing the minutiae of this statute,

we note that R.C. 2152.59(D)(2)(b) states, in part, as follows: “If a child is ordered

to receive competency attainment services that are provided in a residential setting

that is operated solely or in part for the purpose of providing competency attainment

services . . . .” In other words, this statute envisions as part of the juvenile justice

system residential facilities that are “operated solely or in part for the purpose of

providing competency attainment services. . . .”

Dr. Stinson testified at the January 24, 2024 competency hearing

about his ultimate recommendation for J.D., which was also submitted to the court

via the Second Competency Report. Dr. Stinson opined that J.D. “requires

residential placement . . . until he gets [his mental-health issues] managed . . . . I

would recommend a residential treatment plan . . . to address his emotional

disorder. I think once that’s addressed, the competency stuff will fall into place.”

Our review of this recommendation — both what Dr. Stinson concluded in the

Second Competency Report and to what he testified at the competency hearing —

shows that Dr. Stinson thought the best course of action was to get J.D. the help he

needed in a residential facility designed, at least in part, to allow J.D. to attain

competency. In J.D.’s case, it appears that he needs more than the court’s

remediation program to attain competency. In Dr. Stinson’s opinion, J.D.’s underlying mental-health issues need to be treated if J.D. is to attain competency to

stand trial as contemplated under R.C. 2152.51 through 2152.59.

Accordingly, the court erred by finding that it had no “authority” to

follow Dr. Stinson’s recommendation, and J.D.’s fourth assignment of error is

J.D.’s third assignment of error is rendered moot pursuant to App.R.

12(A)(1)(c).

Judgment reversed. Case remanded to the juvenile court to allow

J.D. to file a motion to withdraw his admission.

It is ordered that appellant recover from appellee the costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to the Cuyahoga County Common

Pleas Court, Juvenile Division, to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

______________________________________ EILEEN A. GALLAGHER, ADMINISTRATIVE JUDGE

EILEEN T. GALLAGHER, J., and KATHLEEN ANN KEOUGH, J., CONCUR