In re Z.M.

2022 Ohio 194

• Court: Ohio Court of Appeals
• Decided: January 27, 2022
• Docket: 110699
• Status: Published

Opinion

[Cite as In re Z.M., 2022-Ohio-194.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

IN RE Z.M. : : No. 110699 A Minor Child :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: January 27, 2022

Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case No. DL-15-106353

Appearances:

David S. Bartos, for appellant.

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Mason P. McCarthy, Assistant Prosecuting Attorney, for appellee.

EILEEN T. GALLAGHER, J.:

This cause came to be heard on the accelerated calendar pursuant to

App.R. 11.1 and Loc.App.R. 11.1. Juvenile-appellant, Z.M., appeals from the trial

court’s judgment continuing his classification as a juvenile-offender registrant and

a tier II juvenile sex offender. Z.M. raises the following assignments of error for

review: 1. The trial court’s decision to require appellant to register as a tier II sexual-offender registrant is against the manifest weight of the evidence.

2. The trial court abused its discretion for failing to amend a juvenile offender registrant’s tier status based upon evidence presented.

After careful review of the record and relevant case law, we affirm the

trial court’s judgment.

I. Procedural and Factual History

On August 31, 2015, then 16-year-old Z.M. was charged as a juvenile

with two counts of rape, two counts of kidnapping, and two counts of gross sexual

imposition. The charges stemmed from allegations that Z.M. sexually assaulted the

minor victim, H.O., on separate occasions between February 2013 and April 2015.

On February 18, 2016, Z.M. entered an admission and was adjudicated

delinquent on two amended counts of gross sexual imposition and one count of

kidnapping. Z.M. agreed to submit to a Mokita Assessment, which is an assessment

that identifies risk factors for sexual reoffending. The Mokita Assessment was

completed prior to his dispositional hearing.

At the dispositional hearing, Z.M. was notified of his obligation to

register as a tier II sex offender. The court imposed a suspended commitment to the

Ohio Department of Youth Services, ordered restitution, and placed Z.M. on a two-

year period of probation. Conditions of Z.M.’s probation included sex-offender

counseling.

The court held review hearings in May 2016 and August 2017. The

Mokita Assessment was updated in June 2017. On April 6, 2018, Z.M.’s probation officer filed a “motion for review/amendment of court order” that requested

termination of probation and a redetermination of Z.M.’s sex-offender registration

status. By journal entry, dated May 11, 2018, the juvenile court terminated Z.M.’s

probation, but determined that he would remain a tier II juvenile sex offender. The

trial court did not, however, hold a completion-of-disposition hearing as required

by R.C. 2152.84.

On August 3, 2020, Z.M. filed a motion for declassification, or in the

alternative, a motion for reclassification pursuant to R.C. 2152.85(B)(1). Relying on

the updated June 2017 Mokita Assessment, Z.M. argued that it was appropriate to

terminate his classification as a juvenile-offender registrant based on his low risk for

reoffending and the “great strides [he] has taken in being a productive member of

society.” The state opposed the motion, arguing it was inappropriate to alter Z.M.’s

classification “due to the seriousness of the underlying facts, the covert and

purposeful nature of the offenses, and the opposition of the victim and the victim’s

family to any reclassification or declassification.”

On August 27, 2020, the trial court denied Z.M.’s motion without

hearing. The court stated, in relevant part:

Whereupon, the court reviewed the prior classification and all other relevant factors and information, including the nature of the sexually oriented offense or child-victim offense committed by the child whether the child has shown any genuine remorse or compunction for the offense; the public interest and safety; the factors set forth in Divisions (B) and (C) of section 2929.12 of the Revised Code as they apply regarding the delinquent child, the offense and the victim; the factors set forth in Division (K) of section 2950.11 of the Revised Code; the results of any treatment provided to the child and of any follow-up professional assessment of the child, and the state’s opposition to declassification or reclassification.

Upon due consideration, said motion is hereby denied. It is ordered that the prior classification of the youth as a juvenile-offender registrant and tier II sex offender/child-victim offender remain in effect.

On April 29, 2021, this court vacated the trial court’s judgment, finding

the court had no authority to enter the order. In re Z.M., 8th Dist. Cuyahoga No.

109994, 2021-Ohio-1492. In pertinent part, this court concluded that it was

premature for the juvenile court to continue Z.M.’s classification pursuant to R.C.

2152.85 without holding a completion-of-disposition hearing under R.C. 2152.84.

The cause was remanded with instructions to the juvenile court to “(1) dismiss Z.M.’s

motion for declassification as premature, and (2) hold the mandatory completion-

of-disposition hearing pursuant to R.C. 2152.84 at the earliest feasible date.” Id. at

¶ 22.

On remand, the trial court held the mandatory completion-of-

disposition hearing on June 23, 2021. At the hearing, the parents of H.O. urged the

court to reject Z.M.’s request to terminate or modify his classification status. They

expressed their belief that the timing of Z.M.’s motion was appalling given the nature

and severity of the offenses, H.O.’s age, and the ongoing emotional and

psychological harm H.O. has suffered as a result of Z.M.’s conduct. The parents

explained that they considered Z.M. to be a member of their family and that his

manipulation and breach of trust has negatively impacted their family as a whole.

The parents maintained that in order to protect their children, as well as others in the community, it was imperative that Z.M.’s classification and registration

requirements not be altered.

Z.M. testified on his own behalf. He took responsibility for his

“horrible actions” and expressed remorse to the victim and her family. Z.M.

confirmed that he participated in mandatory therapy and stated that he has “learned

how to be a better person * * * and how [his] actions affect [others].” Z.M. testified

that since the time of his disposition, he has earned an associate’s degree at a local

community college and is currently working as an assistant manager at a restaurant.

Z.M. lives with his parents, has obtained stability, and has done “everything in [his]

power to make sure [he] is nowhere near [H.O.] and her family.” On cross-

examination, Z.M. reiterated that he “would never hurt anybody in [a sexual]

capacity or in the same way ever again.” However, he conceded that he did not need

behavioral therapy to know that “an eight-year-old [could not] consent to sexual

activities.”

Roberta Palmer testified that she completed an assessment of Z.M. in

the course and scope of her employment with the Mokita Center. Palmer explained

that the assessment was completed in order to identify any risk factors that are

associated with sexual reoffending. In the course of completing her assessment in

this case, Palmer reviewed pertinent case records and conducted several interviews

with Z.M. and his parents. Palmer testified that there were several factors associated

with Z.M. that were indicative of reoffending, including the age of the victim, the

number of times the victim was sexually offended, and Z.M.’s gender. However, Palmer expressed that, in her professional opinion, Z.M. “is considered to be at low

risk” for reoffending and “was not in need of any further sex offender specific

services.” She explained that her opinion was based on the presence of several

“protective factors,” including the following:

1. Z.M. has been raised in a home environment that encourages positive values.

2. Z.M. has positive future goals.

3. Z.M. is involved in prosocial activities.

4. Z.M. graduated from high school.

5. Z.M. associates with positive peers.

6. Z.M. has a positive relationship with his parents.

7. Z.M. completed sex offender specific counseling.

Palmer acknowledged that a number of years have passed since she

completed the latest assessment of Z.M. in 2017. However, relying on the

assumption that Z.M. had not reoffended since the assessment was completed,

Palmer explained that the likelihood of Z.M. reoffending diminished further with

each passing year. Palmer further testified that studies and data indicate that

juvenile offenders, such as Z.M., are significantly less likely to reoffend “once they

have gotten treatment.”

Z.M.’s father, J.M., testified on Z.M.’s behalf. He described the

support and love Z.M. receives at home and expressed his belief that Z.M. would not

reoffend. Thus, J.M. opined that it was appropriate to reduce or eliminate Z.M.’s

registration requirements under the circumstances presented in this case. At the conclusion of the hearing, the trial court issued a judgment

entry denying Z.M.’s request to terminate his prior classification, stating, in relevant

part:

The court took the following into consideration:

A. The effectiveness of the disposition.

B. The effectiveness of treatment provided to the youth.

C. The risks the youth might re-offend.

D. Whether the prior classification should be continued or terminated.

E. Whether registration tier should be continued or modified.

F. Testimony from the hearing.

Having considered the factors enumerated above, testimony heard, arguments of counsel, and requirements under O.R.C. 2152.84, 2152.85, and 2151.23(A)(15), the court finds that after conducting the completion of disposition hearing, the previous order requiring [Z.M.] to register as a tier II juvenile sex offender shall remain in place until further order of the court.

Z.M. now appeals from the trial court’s judgment.

II. Law and Analysis

In his first assignment of error, Z.M. argues the trial court’s judgment

is against the manifest weight of the evidence. In his second assignment of error,

Z.M. argues the trial court abused its discretion by failing to amend his juvenile-

offender registration status despite the evidence demonstrating that he does not

present a risk to himself or others. We address these assignments of error together.

In accordance with this court’s instructions in In re Z.M., 8th Dist.

Cuyahoga No. 109994, 2021-Ohio-1492, the juvenile court held a completion-of- disposition hearing pursuant to R.C. 2152.84. The purpose of this hearing is for the

trial court to:

review the effectiveness of the disposition and of any treatment provided for the child, to determine the risks that the child might re- offend, to determine whether the prior classification of the child as a juvenile offender registrant should be continued or terminated as provided under division (A)(2) of this section, and to determine whether its prior determination made at the hearing held pursuant to section 2152.831 of the Revised Code as to whether the child is a tier I sex offender/child-victim offender, a tier II sex offender/child-victim offender, or a tier III sex offender/child-victim offender should be continued or modified as provided under division (A)(2) of this section.

R.C. 2152.84(A)(1).

Upon completion of the hearing, the juvenile court, “in [its]

discretion,” shall do one of the following:

(a) Enter an order that continues the classification of the delinquent child as a juvenile offender registrant made in the prior order issued under section 2152.82 or division (A) or (B) of section 2152.83 of the Revised Code and the prior determination included in the order that the child is a tier I sex offender/child-victim offender, a tier II sex offender/child-victim offender, or a tier III sex offender/child-victim offender, whichever is applicable;

(b) If the prior order was issued under division (B) of section 2152.83 of the Revised Code, enter an order that contains a determination that the delinquent child no longer is a juvenile offender registrant and no longer has a duty to comply with sections 2950.04, 2950.041, 2950.05, and 2950.06 of the Revised Code. An order issued under division (A)(2)(b) of this section also terminates all prior determinations that the child is a tier I sex offender/child-victim offender, a tier II sex offender/child-victim offender, or a tier III sex offender/child-victim offender, whichever is applicable. * * *.

(c) If the prior order was issued under section 2152.82 or division (A) or (B) of section 2152.83 of the Revised Code, enter an order that continues the classification of the delinquent child as a juvenile offender registrant made in the prior order issued under section 2152.82 or division (A) or (B) of section 2152.83 of the Revised Code, and that modifies the prior determination made at the hearing held pursuant to section 2152.831 of the Revised Code that the child is a tier I sex offender/child-victim offender, a tier II sex offender/child-victim offender, or a tier III sex offender/child-victim offender, whichever is applicable. An order issued under division (A)(2)(c) of this section shall not include a determination that increases to a higher tier the tier classification of the delinquent child. An order issued under division (A)(2)(c) of this section shall specify the new determination made by the court at a hearing held pursuant to division (A)(1) of this section as to whether the child is a tier I sex offender/child-victim offender, a tier II sex offender/child-victim offender, or a tier III sex offender/child- victim offender, whichever is applicable.

R.C. 2152.84(A)(2).

In deciding whether the juvenile’s sex-offender classification should

be continued or otherwise modified, the juvenile court must review the effectiveness

of the disposition and any treatment to determine the risk that the child might

reoffend. R.C. 2152.84(A)(1). In addition, the court must consider “all relevant

factors,” including the factors listed in R.C. 2152.83(D). R.C. 2152.84(A)(2). The

R.C. 2152.83(D) factors include the nature of the sexually oriented offense; whether

the child has shown any genuine remorse or compunction for the offense; the public

interest and safety; the factors set forth in R.C. 2950.11(K); the factors set forth in

R.C. 2929.12(B) and (C) as they apply to the delinquent child, the offense, and the

victim; and the results of any treatment provided to the child and of any follow-up

professional assessment of the child.

In turn, the R.C. 2950.11(K) factors include the age of the delinquent

child; the child’s prior record; the age of the victim; the number of victims; whether

alcohol or drugs were used in the commission of the offense; any prior dispositional order or treatment; any mental illness or disability of the child; the nature of the

offense, including whether the sexual conduct was part of a demonstrated pattern of

abuse; whether the offender displayed cruelty; and any other “behavioral

characteristics” that contributed to the delinquent child’s conduct.

Finally, the R.C. 2929.12(B) and (C) factors relevant to Z.M. include

whether the physical or mental injury suffered by the victim was exacerbated by the

age of the victim; whether the victim suffered serious physical or psychological

harm; whether the offender’s relationship with the victim facilitated the offense;

whether the victim induced or facilitated the offense; whether in committing the

offense, the offender expected to cause physical harm; and whether there are

substantial grounds to mitigate the offender’s conduct that do not constitute a

defense.

Relevant to this appeal, it is well settled that the juvenile court

maintains discretion throughout the course of the registration period to consider

whether to continue, modify, or terminate the juvenile offender registration. In re

D.S., 146 Ohio St.3d 182, 2016-Ohio-1027, 54 N.E.3d 1184, ¶ 35 (“Thus, juvenile-

offender-registrant status is subject to statutorily prescribed review [under R.C.

2152.84(A)(1)] and can be modified or terminated at the discretion of the juvenile

court.”) See also In re D.R., 1st Dist. Hamilton No. C-190594, 2021-Ohio-1797, ¶ 17,

citing R.C. 2152.84. Moreover, in determining whether a continuance, modification,

or termination is appropriate, “the trial court has discretion to consider all relevant

information and to appropriately categorize the juvenile.” In re Antwon C., 182 Ohio App.3d 237, 2009-Ohio-2567, 912 N.E.2d 182, ¶ 17 (1st Dist.). Accordingly,

this court will not reverse the juvenile court’s decision absent an abuse of discretion.

See In re D.J., 12th Dist. Warren No. CA2020-05-209, 2021-Ohio-278, ¶ 12.

Abuse of discretion implies that the trial court’s ruling is

“unreasonable, arbitrary, or unconscionable” and requires “more than an error of

law or judgment” to warrant a reversal. Blakemore v. Blakemore, 5 Ohio St.3d 217,

219, 450 N.E.2d 1140 (1983). When applying this standard, “an appellate court is

not free to substitute its judgment for that of the trial judge.” Berk v. Matthews, 53

Ohio St.3d 161, 169, 559 N.E.2d 1301 (1990).

On appeal, Z.M. argues the juvenile court’s judgment “is not

supported by any competent, credible evidence and is therefore an abuse of

discretion.” Z.M. contends that it was appropriate to terminate his sex-offender

classification based on the expert opinions set forth in the Mokita Assessment and

his demonstration of behavior that is indicative “of an upstanding, courteous,

helpful, family-oriented individual.” Upon due consideration, this court is not

persuaded by Z.M.’s one-sided characterization of the relevant factors contemplated

under R.C. 2152.84(A)(2).

In this case, Z.M. has undoubtedly taken responsibility for his past

conduct and has expressed remorse to the victim and her family. He has actively

participated in sex-offense counseling, has earned an associate’s degree, and has

maintained steady employment. In addition, Z.M. has a loving family that has

provided him with a structured and supportive home. Based on these favorable factors, Palmer opined, in her expert opinion, that Z.M. is a low risk for reoffending

and is not in need of further sex-offender specific counseling.

However, the record reflects that the trial court also had a

comprehensive understanding of pertinent factors that weighed in favor of

continuing Z.M.’s classification, including (1) the seriousness of the offenses, (2) the

age of the victim, (3) Z.M.’s position of trust over the victim, (4) the breadth of Z.M.’s

pattern of abuse, and (5) the ongoing emotional and physiological harm suffered by

the victim and her family.

After careful consideration, it is evident that the trial court carefully

considered the relevant factors set forth in R.C. 2152.83(D), 2950.11(K) and

2929.12(B)-(C). Although this court recognizes the actions Z.M. has taken to

address the issues contributing to his past conduct, we cannot say the trial court’s

decision to continue Z.M.’s classifications as a juvenile-offender registrant and a tier

II sex offender was an abuse of discretion. The weight afforded to the relevant

factors contemplated under R.C. 2152.84(A)(2) was left to the sound discretion of

the juvenile court. See In re D.J., 12th Dist. Warren No. CA2020-05-209, 2021-

Ohio-278, at ¶ 18, citing In re T.M., 12th Dist. Fayette No. CA2015-07-017, 2016-

Ohio-162, ¶ 27 (juvenile court in the best position to assess and weigh evidence

relevant to R.C. 2152.83[D] factors). And, because the record contains competent

and credible evidence relating to factors that are unfavorable to Z.M.’s argument on

appeal, this court may not substitute its judgment for that of the lower court. In

reaching this conclusion, we note that Z.M. is not consigned to perpetual registration as a tier II sex offender; his classification remains subject to review pursuant to R.C.

2152.85.

Z.M.’s first and second assignments of error are overruled.

Judgment affirmed.

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

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

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 T. GALLAGHER, JUDGE

SEAN C. GALLAGHER, A.J., CONCURS; MARY J. BOYLE, J., CONCURS (WITH SEPARATE OPINION ATTACHED)

MARY J. BOYLE, J., CONCURRING:

I concur with the majority opinion. I respectfully write separately to

emphasize Z.M.’s efforts and progress. The record is clear that Z.M. immediately

apologized for his actions and since his adjudication in 2016, Z.M. completed his sex

offender therapy, completed early sexual offender counseling, completed the terms

of his probation without any violations, obtained an associate’s degree, and has been

employed with the same employer for the past five years. Z.M. is currently an

assistant manager and is being considered for a promotion to general manager. At the June 2021 hearing, Z.M.’s testimony demonstrates that he

accepted responsibility for his actions and expressed remorse to the victim and her

family. In addition, Palmer testified Z.M.’s Mokita Assessment indicated that he

was at low risk for reoffending. She further testified that, in her professional

opinion, Z.M. is low risk for reoffending and “was not in need of any further sex

offender specific services.”

Because the abuse-of-discretion standard of review is a higher

threshold than a mere error in judgment and requires Z.M. to demonstrate such

abuse to satisfy the appellate burden, I cannot conclude that the juvenile court

overstepped the extremely high threshold of an abuse-of-discretion standard.

Therefore, I defer to the juvenile court’s determination and concur with the majority

opinion.