In re T.T. , 2021 Ohio 759 ( 2021 )

[Cite as In re T.T., 2021-Ohio-759.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
In re T.T. Court of Appeals No. L-19-1280
Trial Court No. JC16259440
DECISION AND JUDGMENT
Decided: March 12, 2021
*****
Timothy Young, Ohio Public Defender, and Abigail Christopher,
Lauren Hammersmith, Assistant State Public Defenders, for appellant.
Julia R. Bates, Lucas County Prosecuting Attorney, and
Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee.
*****
MAYLE, J.
{¶ 1} Appellant, T.T., a minor child, appeals the October 31, 2019 judgment of the
Lucas County Court of Common Pleas, Juvenile Division, invoking the adult portion of
her serious youth offender sentence. For the following reasons, we affirm the trial court
judgment.
I. Background
{¶ 2} On December 7, 2016, T.T. shot her 15-year-old brother in the chest with a
shotgun, killing him. T.T. was 14 years old. A delinquency complaint was filed in the
Lucas County Court of Common Pleas, Juvenile Division, alleging murder, a violation of
R.C. 2903.02(B), an unclassified felony. The complaint specified that a firearm was used
in the commission of the offense.
{¶ 3} The state moved for a discretionary transfer of the case to the Lucas County
Court of Common Pleas, General Division, under R.C. 2152.10(B) and 2152.12(B).
Following a hearing, the court denied the state’s motion. On July 12, 2017, by way of
information, the state added a second count to the complaint for murder under R.C.
2903.02(B) and (D), with a firearms specification under R.C. 2941.145, and a mandatory
serious youth offender (“SYO”) specification under R.C. 2152.11(C)(1).
{¶ 4} On August 16, 2017, T.T. entered an admission to the delinquency
complaint and a plea of guilty to Count 2. The juvenile court found T.T. guilty and
adjudicated her a delinquent child. On August 31, 2017, the court conducted a SYO
disposition sentence hearing under R.C. 2152.11(B)(1) and 2152.13. On Count 2, the
adult conviction, the court sentenced T.T. to an indefinite term of 15 years to life in
prison and five years of post-release control. As to the delinquency adjudication, under
R.C. 2152.16, the juvenile court committed T.T. to the custody of the Department of
Youth Services (“DYS”) for secure confinement until T.T. reaches the age of 21. Under
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R.C. 2152.13(D)(1)(c), the court stayed the adult portion of the SYO dispositional
sentence pending successful completion of the traditional juvenile disposition.
{¶ 5} On March 13, 2019, approximately two months before T.T. turned 17, the
state moved to invoke the adult portion of the SYO disposition under R.C. 2152.14(A)(1)
and (2). It alleged that while in DYS custody, T.T. had committed several acts of
misconduct, including acts that are in violation of the rules of the institution and that may
constitute a felony or first-degree misdemeanor of violence if committed by an adult,
including felony assault, aggravated menacing, and misdemeanor assault. The state
maintained that T.T.’s conduct creates a substantial risk to the safety and security of the
institution and to those who work or reside there.
{¶ 6} T.T. moved to dismiss the state’s motion, arguing that she had not been
admitted to a DYS facility for purposes of R.C. 2152.14(E)(1)(b), so her adult sentence
could not be invoked. The court denied T.T.’s motion.
{¶ 7} The court conducted a hearing on September 27, 2019. The parties elicited
testimony from numerous witnesses, including G.W., a former youth specialist at
Montgomery County Center for Adolescent Services (“CAS”), who T.T. assaulted in
September of 2018; Stephanie Wood, a former youth specialist at CAS; Albertina
Mitchell, a clinical intake coordinator at CAS; William Schaffer, the program director for
CAS; Jessica Jefferson, the female program administrator for DYS; Raenita Weir, T.T.’s
mental health and substance abuse therapist; B.C., T.T.’s mother; and Drs. Charlene
Cassel and Mark Babula, psychologists who evaluated T.T. and offered opinions as to
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whether T.T. could be successfully rehabilitated in the time she had remaining in DYS.
Their testimony is summarized below.
A. G.W.
{¶ 8} G.W. is employed as a mental health technician at Dayton Children’s
Hospital. She was previously employed by CAS as a youth specialist. Youth specialists
oversee the daily functioning of the residents. T.T. came to CAS around August of 2017,
but G.W. did not begin working there until April of 2018.
{¶ 9} G.W.’s relationship with T.T. was “hit or miss.” Throughout G.W.’s time at
CAS, there were days when T.T. was fine, but there were other days where she swore at
G.W. and exhibited aggression over little things. G.W. said that when T.T. behaved
poorly, it lowered the morale of the unit and agitated things.
{¶ 10} In September of 2018, three residents assaulted G.W. One of them hit her
with a broomstick, one hit her in the head and pulled her hair, and T.T. hit her with a
crutch until it broke. G.W. suffered a contusion to her left forearm and a concussion.
She missed a few shifts of work because of the incident. Following the incident, she
suffered headaches and migraines from the light of the computer screen, she could not be
around the kids, and she was mainly confined to housekeeping duties. G.W. has a
bachelor’s degree in psychology and is working on her master’s degree in social work.
{¶ 11} After the assault, G.W. sought treatment by two social workers at Wright
Patt Medical. She eventually returned to her regular duties. Her relationship with T.T.
remained hit or miss.
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{¶ 12} G.W. conceded on cross-examination that she suffered from PTSD before
the incident with T.T. and was already treating with one of the two social workers at
Wright Patt. She also testified that while she has witnessed other violent behavior
between residents and has seen T.T. engage in physical fights with her peers, the
September 2018 incident was the only time she was assaulted at the unit.
{¶ 13} Further describing her assault, G.W. recalled that on the day she was
assaulted, T.T. was sitting down. G.W. called a code and the residents were supposed to
go to their doors and remain at their door until it was shut and locked secure. She does
not believe that T.T. went to her door like she was supposed to, but she agreed that if the
video of the incident shows otherwise, then she would be wrong.
B. Stephanie Wood
{¶ 14} Stephanie Wood was a youth specialist at CAS for a year and one-half, but
is now a court services officer. While at CAS, she had nearly daily contact with T.T.
She described T.T. as a “bright and talented young lady,” but feels that T.T. uses her
talents to manipulate her peers. She can be “oppositional” and her behavior is
“unpredictable.” She inserts herself into situations and conflicts even when they have
nothing to do with her. “She has no respect for authority whatsoever” and tries to
intimidate staff. She will change her behavior to get something she wants, but if you
have nothing to offer her, she will not speak to you or be kind. T.T. links up with girls,
forms romantic relationships, then girls who were not previously acting out suddenly
begin to act out.
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{¶ 15} Wood has witnessed T.T. engage in physical aggression and altercations
toward her peers. She has threatened Wood. Wood was on the unit when G.W. was
assaulted. T.T. and two other girls attacked G.W. One used a broom, another pulled her
hair and hit her, and T.T. beat her over the head with a crutch until it broke. Wood
grabbed the crutch, but T.T. ran to grab the other crutch. T.T.’s girlfriend eventually
persuaded her to retreat into her room. Wood does not know exactly why T.T. had
crutches—she was complaining about her ankle or foot bothering her.
{¶ 16} T.T. confronted Wood during a customary pat down in August of 2019.
While patting T.T. down, she noticed that T.T. was wearing brown underwear that were
not part of her uniform. Wood asked T.T. about it and T.T. flung her arm back and hit
her with her arm. She then began swearing at her and became physically aggressive and
hostile. During a more recent incident, T.T. began taking off her clothes at an
inappropriate time. Wood was instructed by her supervisor to record T.T.’s behavior and
T.T. said “I’ll turn that off myself bitch”—other staff stopped T.T. from getting to Wood.
{¶ 17} Wood feels that T.T.’s behavior affects programming at CAS. There can
be stretches of weeks that T.T. behaves, follows directions, and needs little redirection.
But there are times that she is very disruptive. T.T.’s romantic relationships with the girls
have also been harmful. Romantic relationships are not allowed at CAS.
{¶ 18} Wood said that she has not seen changes in T.T. since she first started
dealing with her at CAS. “Her behaviors remain erratic.” She has not seen progress
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toward rehabilitation. Wood would not describe T.T.’s behavior as typical of other
residents’ behavior.
{¶ 19} Wood described the procedure that is supposed to be followed when a code
is called. Residents that are not involved are supposed to step into their rooms. Many
times they have to be restrained and put into their rooms. During the assault on G.W.,
T.T. initially went to the door like she was supposed to, but she did not enter her room.
Wood does not know if the door was locked.
{¶ 20} During a routine pat down, residents are supposed to line up against the
wall and take off their shoes. The workers wear gloves. They feel around the resident’s
sweatshirt and around her bra and shake it to make sure that nothing is being hidden in it.
They use their thumbs and feel around the waistband of the resident’s pants, not really
touching the person—just her pants. They feel her ankles and check her shoes. She
could see T.T.’s underwear before even doing the patdown, and saw they were not CAS
property. T.T. said she smuggled them from the jail. Wood simply asked her about them
and T.T. became hostile.
{¶ 21} CAS has a system whereby residents can earn things with points they
accumulate. When a resident commits an infraction, they lose points. If they are placed
on a behavior contract, they are restricted from certain activities. T.T. has had bouts of
good behavior when she wants to, but she seems to not want to. Wood finds this
unfortunate because she believes T.T. is very intelligent and talented.
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{¶ 22} Any time the kids go out of the facility and come back, they need to be
strip searched. They go into a restroom and take off their clothes while a staff member
stands outside with the door cracked. They have to squat and cough and she has to check
their clothing. Wood had to strip search T.T. when she returned from court in Toledo.
{¶ 23} Wood answered several questions by the court. She testified that CAS has
15 beds for DYS girls and 10 beds for county girls. T.T. is in one of the 15 DYS beds.
CAS also has two units for boys.
C. Albertina Mitchell
{¶ 24} Albertina Mitchell, a social worker, is a clinical intake coordinator at CAS.
She has been working with youths for 37 years. She started working at CAS just before it
began accepting DYS girls in December of 2013. Mitchell was on medical leave when
T.T. was first admitted to CAS; she returned from leave about four months after T.T.’s
admission.
{¶ 25} Mitchell reviewed T.T.’s diagnostics when she returned from medical
leave. One of her duties is to evaluate what services the residents are getting and how
they are functioning on the unit. She also performs crisis intervention and assesses
suicidal behavior and threats to others. Mitchell does not engage in direct therapy with
T.T. She provides support and assistance to primary therapists, family therapists, and
treatment specialists. She helps facilitate programming.
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{¶ 26} T.T. is cooperative with Mitchell. She has had perhaps two negative
experiences with T.T. T.T. behaves differently with other staff. She is more
argumentative and oppositional, particularly with youth specialist supervisors.
{¶ 27} Raenita Weir is T.T.’s primary therapist and is contracted to CAS through
South Community Behavioral Health. T.T. speaks with Weir about once a week. Weir
and T.T. started off well—T.T. was actively engaged in treatment and they were working
well together. Their relationship hit some difficulties. Weir has asked for Mitchell’s
suggestions for addressing a patient who is oppositional and aggressive. T.T. was
becoming verbally and physically aggressive towards Weir, positioning herself in a
threatening, intimidating manner. Mitchell reassured Weir that she had to confront T.T.’s
behavior and explain the importance of therapy and the necessity of change.
{¶ 28} In addition to individual therapy, T.T. has been involved in a number of
groups at CAS including Motivation to Change and Girls Moving On. These programs
focus on moral decision-making, anger management, healthy choices, and prosocial
behavior. T.T.’s primary clinician and group leaders set goals for T.T. If she is not
meeting her goals, that could be addressed at clinical team meetings.
{¶ 29} Mitchell has had limited need to intervene with T.T. because T.T. is pretty
appropriate in speaking with Mitchell. There was one incident earlier in the year when
she made a comment on a grievance that suggested she might harm herself. She has not
been involved with T.T.’s rule infractions.
9.
{¶ 30} T.T. is having a difficult time at CAS. While Mitchell has seen motivation
from an academic perspective, T.T. is easily agitated and does not respond well to
correction. She becomes argumentative and defiant. She has heard of physical
aggression by T.T. against others. She is selective about who she will cooperate with.
She has difficulties following routines and expectations at CAS. T.T.’s behavior affects
staff—the staff is stressed and anxious about approaching her or making requests of her.
She can get volatile and explosive and this affects the other kids too.
{¶ 31} On cross-examination, Mitchell conceded that T.T. is not the only volatile
resident, but she maintained that this behavior is not as frequent or intense with the
others. She has not seen improvement from T.T. She may be less disruptive or
aggressive, but she is not progressing. Mitchell has seen girls make progress at CAS, but
T.T. is not. While T.T. is not as oppositional towards Mitchell, Mitchell is not the one
giving her day-to-day directions—she is more oppositional with staff who have to give
routine directions. Mitchell acknowledged that being at CAS is stressful. She stated that
she does not know if T.T. is smart, but T.T. is passing her classes.
D. William Shaffer
{¶ 32} William Schaffer is the program director for CAS. He has been employed
by Montgomery County Juvenile Court since 1997. He has been at CAS since 2011, and
has been its program director since 2015.
{¶ 33} Since the time he started in 1997, the juvenile system has become more
rehabilitation-focused and has expanded the scope of services to treat specific behaviors,
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including sex-offender specific behavior or trauma behavior. The scope of treatment and
academics has also expanded.
{¶ 34} Shaffer discussed the programming at CAS. Residents start with
Motivation to Change, a four-week program through the University of Cincinnati that
helps identify a need for a change in behavior, linking thoughts and behaviors together
and working to identify and address the real issue at hand. Equip is a ten-week phase that
focuses on anger management, moral reasoning, and social skills. Cognitive behavioral
therapy (“CBT”) works to link thoughts and behavior. Strengthening Family provides
family sessions and focuses on engaging the family in the child’s treatment. Reentry is a
four-week phase that focuses on graduated home visits and skills to apply when residents
face triggers in their communities. CAS also offers educational and some vocational
opportunities.
{¶ 35} Youth specialists work on the front line at CAS. Staff attempts to provide
verbal redirection and offer alternatives to negative behavior before punishing a child for
infractions. Staff has been trained in restraining youth who engage in behaviors that pose
an immediate risk to safety and security, but it is a last resort.
{¶ 36} Shaffer communicates with T.T. approximately every other day, but he
works with her in a limited capacity, only as needed. She comes by to say hello and
goodbye, and speaks with him about her concerns, complaints, and questions. He has a
positive relationship with her. She takes redirection from him when provided and
generally is not argumentative with him. He has received feedback from staff, however,
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that they struggle with her. She is disrespectful and argumentative. He has witnessed her
become argumentative or agitated with staff. T.T. is more receptive to redirection
received from him than from other staff.
{¶ 37} Rae Weir is T.T.’s therapist. She is a contract therapist assigned to CAS 40
hours a week. She has a standing weekly appointment with T.T. She also conducts
“resets” with T.T. to discuss behaviors or concerns and provides an opportunity to help
T.T. improve her behavior.
{¶ 38} Weir came to Shaffer and said that she was having issues with T.T. She
expressed frustration at T.T.’s hostility and oppositional behavior. At the beginning of
the year, T.T. was blaming Weir for incidents and behaviors and for her lack of progress
in therapy. Shaffer spoke to Weir and another staff member spoke to T.T. T.T. was told
that to make progress she needed to overcome and work through her issues. He observed
that when things are not beneficial to T.T., her custom is to ask for something else to
change—she never sees anything through to the end.
{¶ 39} T.T. left CAS for two months and went to Pomegranate. Pomegranate is a
facility that DYS contracts with to provide alternative programming that focuses more on
mental health or drug and alcohol needs. Pomegranate is a locked facility but it is
considered a stepdown because it is more relaxed. The living environment is more
residential than correctional and the girls are allowed to have personal effects and items
that they’re not allowed to have at CAS. T.T. was there for two months, then returned to
CAS. Shaffer does not know the reason for her return to CAS.
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{¶ 40} Shaffer went over a summary of T.T.’s rule infractions during her time at
CAS, which were marked as an exhibit. They covered the period of September 8, 2017,
to September 10, 2019. They are broken into two categories: (1) higher level, aggressive
infractions, and (2) lower level, oppositional and self-control. T.T. has had 53 higher
level infractions—23 for physical interactions directed toward her peers or staff.
{¶ 41} In terms of the number of infractions T.T. has received as compared to
others, she falls on the higher end, even taking into account that she is in a DYS unit.
The infractions are spread over a good period of time, which Shaffer said demonstrates
consistent negative behavior. Other girls with more infractions tend to have more
significant mental health diagnoses and engage in more self-harm or lethal types of
behavior than T.T.
{¶ 42} What stands out to Shaffer about T.T.’s behavior is that she is making
purposeful choices. He has seen her follow his directives, yet she doesn’t follow other
staff directives—this tells him this is a choice she is making and it is not impulsive.
“She’s choosing the right person at the right time that she feels she would have the best
outcome with.”
{¶ 43} T.T. is difficult, argumentative, and disrespectful to the staff. Her
disrespect wears on them. They consistently deal with the same issues with her day in
and day out. Sometimes it is a minor issue, but it is so repetitive that it wears them out.
A few staff, Shaffer included, have an amicable relationship with T.T. But newer staff
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are apprehensive to work with her, and many staff are more on guard with her than usual
and hesitant to work with her.
{¶ 44} T.T.’s behavior affects the running of CAS. She easily manipulates other
residents, drives the tone and the mood of the unit, and impacts behaviors. She is viewed
as “the one that is kind of pulling the strings behind the scenes.” She inserts herself into
situations that don’t involve her. She presents a safety risk to the facility because she is a
“wild card.”
{¶ 45} Shaffer has talked to T.T. about the fact that she is a SYO. He has
provided her with encouragement in the program. Others reinforce with her that she has
SYO status, so she knows that the adult sentence is hanging over her head. This
knowledge has not had an impact in reducing her negative behaviors.
{¶ 46} Shaffer has seen successful youth at the facility. But based on his
experience and training, he does not expect to see long-term improvement with T.T. She
has shown that she can do what is expected of her, but Shaffer does not believe she does
it for the true purpose of making change. He believes that she tries to get people
comfortable “while she’s sizing up her next opportunity.” He does not believe she is
internalizing what she needs to do to be successful in the community.
{¶ 47} On cross-examination, Shaffer clarified that T.T. is a few months short of
two years into her time at CAS. She is supposed to be there until she is 21, which means
she has approximately three years left. He agreed that it is possible to have periods of
improvement and periods of no improvement. He also agreed that it is not a good idea to
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give up on a child. He conceded that if T.T. decided she wanted to be successful at CAS,
she could be, but she has consistently behaved in a manner that is contrary to any
expressed commitment to the program.
{¶ 48} Shaffer agreed that the largest percentage of T.T.’s infractions at CAS are
lower-level infractions. Sixty-eight percent were lower level, such as failure to maintain
hygiene, failure to place her shoes outside her room, profanity, and improper uniform.
But Shaffer insisted that he would not be in court if all they were discussing were these
types of low-level infractions. There are 23 physical aggression infractions.
{¶ 49} Shaffer recalls seeing T.T.’s mother once. He does not know anything
about her personal circumstances. He is aware that she relies on others for transportation.
{¶ 50} On redirect, Shaffer confirmed that up until January of 2019, T.T. had 87
infractions. As of the time of the hearing (September 2019), she had 161 infractions:
108 were lower-level infractions, and 53 were higher level. In the last eight months, 30
percent of her infractions have been higher level.
E. Jessica Jefferson
{¶ 51} Jessica Jefferson is the female program administrator for DYS. She has
worked for DYS for 21 years. Her role is to oversee all the females that come into the
department and to decide whether they should stay at DYS or whether they should be
transferred to a stepdown facility. Jefferson meets with the girls every week, decides on
their treatment, and makes sure they get an education. Essentially, she acts as their
guardian.
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{¶ 52} CAS gives Jefferson information about T.T.’s progress. She talks to T.T. at
least once a week. She talks with her about her behavior, her progress, and things she
needs to work on. About once a month, she reminds T.T. of her SYO status and cautions
her to watch everything she does because her SYO could be revoked. She asks T.T. what
she can do to help.
{¶ 53} T.T. is very intelligent and has much potential. She can do “anything she
wants to do if she puts her mind to it, but she has to decide to do it.” Jefferson reported
that when T.T. first entered DYS, she did “amazing.” As time went on, the number of
incident reports increased and her behavior regressed. Jefferson would talk to her and
she seemed to listen. Sometimes her behavior would improve, but sometimes she would
regress.
{¶ 54} Jefferson allowed T.T. to transfer to a stepdown facility called
Pomegranate. While it is considered a stepdown, Pomegranate is stricter. The rules must
be followed, and girls who cannot deal with that cannot stay. T.T. was at Pomegranate
from February 24, 2018, to April of 2018. Usually, Jefferson gives a girl six months to
“get it together”; T.T. got sent back to CAS after two months. Jefferson told her that if
she gets herself together, she can go back to Pomegranate again. T.T. has not gotten her
behavior up to Pomegranate standards.
{¶ 55} Jefferson documented the times she has spoken with T.T. about her SYO
status. She does this with all the girls under SYO. She has had successful girls at DYS.
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She feels that T.T. is internalizing the building blocks she is given, but it is up to her to
make the changes. She knows what she has to do, but it is up to her to do it.
{¶ 56} On cross-examination, Jefferson clarified that when girls are no longer
fighting or violent, she gives them a chance at Pomegranate or Applewood, both of which
are stepdowns. It is a good thing to be sent to Pomegranate; a resident should want to do
it. T.T. was permitted to go to Pomegranate because of the improvement she had shown
at CAS. She came back because she was not following the rules. She has had other girls
who have had to be sent back, but were then able to return to Pomegranate. It is up to
T.T. to do what she would need to do to return to Pomegranate. If she does those things,
Jefferson would recommend it if the department allows it.
{¶ 57} Jefferson has had contact with T.T.’s mother a couple of times. She knows
that T.T. speaks to her on the phone, but she does not know how often. After speaking
with her mother, sometimes T.T.’s behavior is good, and sometimes it is bad, depending
on how the conversation went.
{¶ 58} Jefferson was shown some of her notes. One of them was from December
26, 2018. She noted that T.T.’s behavior had improved “by not victimizing others, but
she needs to have a more positive attitude and follow staff direction without giving any
negative feedback.” There was a note from February 27, 2019, indicating that T.T. had
been doing well and desired more art therapy and the opportunity to participate in more
educational opportunities. A note from March 18, 2019, acknowledged that T.T.
participated in a video call with her mother and behaved appropriately and prosocially. It
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indicated that T.T.’s goal was to return to Pomegranate and that she appeared motivated
to advance and change her behavior. T.T. was counseled that a recent incident involving
her girlfriend created a barrier to her success. T.T. expressed that she was excited to
graduate and wants to attend college. The notes indicate that facility expectations and
parole contact were discussed with T.T.
{¶ 59} Jefferson agreed that if T.T.’s actions were consistent with her words, this
would suggest positive forthcoming behavior from T.T. She believes T.T. has potential
and is capable of rehabilitation, but “that’s up to [T.T.].”
{¶ 60} On redirect, Jefferson was asked to review a February 27, 2019 note that
indicated that T.T. was not making good progress in resolving conflicts with staff and
thinking before she reacts. Her “behavior continues to regress.” She reviewed a note
from September 4, 2019, stating that T.T. needs to deal with conflict using her coping
skills and describing her progress as inconsistent. “[T.T.] understands that she is an SYO
and cannot allow her feelings to cause her to victimize others.”
F. Raenita Weir
{¶ 61} Raenita Weir is T.T.’s mental health and substance abuse therapist. She is
employed by South Community Behavioral Health and is contracted to work at CAS.
{¶ 62} Weir worked with T.T. on trauma-focused CBT. CBT helps to identify
triggers and stressors and evaluate thinking errors to develop alternative thoughts and
actions. Weir also utilizes dialectical behavioral treatment, which is similar to CBT. It
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focuses on the person and how they handle situations, emotional regulation, mindfulness,
etc.
{¶ 63} T.T. responded well to CBT for a while, but starting around September of
2018, T.T. chose to discontinue CBT. She was getting ready to present her trauma
narrative when she decided to leave. She can resume CBT if she wants to, but she has
not done so. Weir does not know why T.T. has not chosen to resume CBT, but by not
working past her trauma, T.T. has not allowed herself to heal. Weir said that T.T. will
always have trauma reminders—flashbacks, nightmares, avoidance, and other distress—
if she does not work past it. She believes that T.T. needs this treatment, but T.T. has to
be open to it.
{¶ 64} T.T. is sentenced to be in the juvenile system until she is 21, unless the
court decides to invoke her SYO status, in which case it will be longer. Whether T.T. is
capable of doing what needs to get done within three years is “completely, utterly up to
[T.T.].” T.T. “is in charge of her change and her decision to change or not to change.”
Weir believes everyone is capable of improvement.
G. B.C.
{¶ 65} B.C. testified that because she does not drive on the expressway, she has
visited T.T. at CAS only a few times. She has gone for scheduled visits with T.T.’s
parole officer and when a friend has taken her. She usually talks to T.T. on the phone a
couple times a week. T.T. is able to earn one free phone call a week, and they may talk
more often if B.C. has money to put on the phone. T.T. has an older sister, older brother,
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and younger brother. B.C. misses T.T. and she knows T.T. misses her family. T.T.
especially misses B.C.’s middle son.
{¶ 66} T.T. tells B.C. that life at CAS is sometimes good and sometimes bad. T.T.
did not do well in school when she was at home, but she is doing well now and is looking
forward to graduating.
{¶ 67} T.T. told B.C. that she was asked to lead a group last December. T.T. was
excited about that, and B.C. believes that being asked to lead a group demonstrates
improvement. B.C. believes that T.T. can get the help she needs from the state within
three years. She feels that it is never too late to improve, and T.T. expresses that she has
hopes and dreams. T.T. is still trying, even with the chaos of her surroundings.
H. Dr. Charlene Cassel
{¶ 68} Dr. Cassel examined T.T. in 2017—when T.T. was 14—in preparation for
her bindover hearing. At that time she recommended that T.T. remain in the juvenile
system. She evaluated T.T. again in connection with the state’s motion to invoke the
adult portion of T.T.’s sentence. She prepared a report of her evaluation.
{¶ 69} T.T. has made some improvements during her time at CAS, particularly in
the area of academics. Before T.T. was arrested, she had been skipping school a lot.
Since her detention, she has worked hard at school and has developed interests in writing
and music.
{¶ 70} T.T. views herself as doing much better in DYS than the records indicate.
Dr. Cassel reviewed records of incidents from CAS that involved T.T. T.T. downplayed
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her responsibility for the incidents, offered explanations, and blamed others for her
discipline problems. T.T. has had difficulties with corrections officers and with her
therapist.
{¶ 71} Dr. Cassel expressed skepticism concerning how much progress T.T.
would make in the future. She noted that T.T. has demonstrated a pattern of not obeying
rules, pushing the limits, and doing as little as possible to change her criminalistic
thinking despite engaging in services through DYS that were designed to correct these
thoughts and behaviors.
{¶ 72} T.T. reported to Dr. Cassel that she felt depressed and anxious. Dr. Cassel
did not observe anxiety in T.T., but she did observe depression. She is aware that Dr.
Babula diagnosed T.T. with adjustment disorder; she disagrees with that diagnosis. Dr.
Cassel previously tested T.T. for intellectual disabilities and found that T.T. had mild
mental retardation, but Dr. Cassel is not convinced of the accuracy of those results
because T.T. exhibits a high degree of street smarts. She believes the tests
underestimated T.T.’s intellectual functioning.
{¶ 73} Dr. Cassel diagnosed T.T. with attention deficit disorder and oppositional
defiant disorder. She questioned whether to add a diagnosis of conduct disorder. Dr.
Cassel found certain traits of antisocial personality disorder prevalent in T.T. Those traits
include impulsivity, the inability to learn from past experience, low tolerance for
frustration, and the inability to accept responsibility for one’s actions. But a person under
age 18 cannot be diagnosed with antisocial personality disorder.
21.
{¶ 74} As part of her evaluation of T.T., Dr. Cassel inquired about the assault of
G.W. T.T. described that she returned to her cell when the fight broke out, but could not
enter the cell because it was locked. She then decided to “even up the situation” by
getting involved and in doing so, struck a corrections officer who was fighting with
another inmate. This assault was one factor that Dr. Cassel took into account in arriving
at her opinion in the case.
{¶ 75} Dr. Cassel performed MMPI testing of T.T. Since the last time she
administered the test to T.T., she has shown some improvement in terms of expressing
her feelings, but she is still immature, impulsive, and fails to take responsibility or learn
from past actions. The results of that test suggest that she is egocentric, insensitive, self-
indulgent, and distractible. Some of this will change as she ages, but some will not. She
observed that T.T. displays narcissism and has an inflated sense of self. This is a
hindrance to her ability to change.
{¶ 76} When Dr. Cassel evaluated T.T. in 2017, she opined that there was enough
time for T.T. to be rehabilitated in the juvenile setting and that the level of security in a
juvenile facility would provide reasonable assurance of public safety. Dr. Cassel now
questions whether that remains true. While T.T. has made significant educational gains,
she “continues to test the limits, threatens people, gets in altercations, [and] continues to
interfere with the whole process rather than learn from it.” T.T. lashes out at anybody
that restrains her and behaves as though rules and regulations do not apply to her. Dr.
Cassel believes that it is “unlikely that [T.T.] is going to make significant changes to
22.
continue to be treated within the juvenile justice system.” She expressed that T.T.’s prior
behavior is the best indicator of how she is going to behave in the future, and she
concluded that it is more likely than not that T.T. will not be rehabilitated within the
juvenile system.
{¶ 77} On cross-examination, Dr. Cassel conceded that it is possible that T.T. may
change. She clarified that narcissism is a personality disorder and a personality
characteristic she observed in T.T., but was not her diagnosis. She reiterated that she was
unable to assign the diagnosis of antisocial personality disorder because T.T. is not yet
18. She agreed that teenagers are immature and impulsive.
{¶ 78} Dr. Cassel watched the video of T.T. assaulting G.W. with her crutch and
saw other information documenting incidents of threats. Dr. Cassel acknowledged that
T.T. is on certain medications and her behavior may be impacted if she does not take her
prescribed medications.
{¶ 79} As to T.T.’s family background, T.T. was raised by a single mother who
worked a lot and her grandmother often babysat. Her father, an alcoholic, was in and out
of her life and was not a positive role model. T.T. had a close but challenging
relationship with her older brother that involved conflict and violence. Dr. Cassel agreed
that T.T.’s chaotic home life impacted her behavior, but she believed that with structure,
T.T.’s behavior might improve. It did not. T.T. continues to question rules and push
limits like she did before entering the institution. The video of the assault at CAS
demonstrates T.T.’s impulsivity. She has a pattern of fighting violence with violence.
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{¶ 80} Dr. Cassel spoke only briefly with T.T. about her sexuality because she did
not believe that it was an important aspect of whether she would be rehabilitated. T.T. is
a lesbian and seems comfortable with that fact.
{¶ 81} Dr. Cassel acknowledged that T.T. is not even half way through her
juvenile detention—she still has three-and-one-half years left. While she has concluded
that T.T. is unlikely to make significant changes in that time, she conceded that it is
possible.
I. Dr. Mark Babula
{¶ 82} Dr. Babula evaluated T.T. concerning whether there is sufficient time for
T.T. to be rehabilitated in the juvenile system. He concluded that “the time remaining is
sufficient if there are certain factors that are met.”
{¶ 83} Dr. Babula spoke with T.T. about her family, educational, and medical
history. There is closeness, but also conflict, within her family history. T.T. was raised
by a working, single mother who struggled financially. At times, the utilities would be
turned off and they would have to sleep in the car. She had limited supervision, was on
the street a lot, and was often with her grandmother when she was available.
{¶ 84} T.T. and her mother have a caring and close relationship. She wanted to be
around her mother growing up. She felt that she received less attention at around age
nine when her mother became involved in a romantic relationship. She became less
supervised. She would often leave and not tell her mother. T.T.’s father abused alcohol
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and her relationship with him was inconsistent. He sometimes lived with a girlfriend
who would kick him out—along with the children. She was close to her brother.
{¶ 85} Corporal punishment was used in T.T.’s family. She witnessed her uncle
being shot, in addition to other violence. This exposure to violence can lead to fear and
can cause physical reactions that are manifested when a person feels threatened—a fight
or flight reaction. This reaction increases adrenalin and the person becomes focused on
survival. The failure to take care of T.T.’s basic needs was a perceived or actual threat to
her survival that would trigger a response in her and lead her to feel that she needed to
take care of her needs on her own, causing her to view the world as hostile.
{¶ 86} T.T. described a tendency to associate with males and reported that this
subjected her to bullying and accusations of sexual promiscuity. She perceived the
bullying as threatening and it triggered a fight or flight reaction in her—more likely a
fight response. It is possible that the assault of the CAS employee triggered a fight or
flight response. T.T. reported to Dr. Babula that she was triggered physically and
emotionally and she reacted.
{¶ 87} Dr. Babula performed a number of tests, inventories, and assessments of
T.T. T.T. did not have major clinical issues like psychosis, and there did not appear to be
a major depressive disorder. But she seemed to have anxiety and some depression. He
diagnosed her with adjustment disorder.
{¶ 88} The results of the assessments and questionnaires suggest that T.T.
attempts to problem solve while under stress and her history of traumatic experiences
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leads her to maladaptive behaviors to manage anxiety. She tries to correct it, but may not
make the best decisions. She does not trust people easily, has problems with authority,
and is highly suspicious of others. T.T. thinks highly of herself, but at the same time, she
may have some feelings of inadequacy and may have internalized a sense that she is bad
or that others view her as bad. The tests showed a vulnerability to low self-esteem.
{¶ 89} The tests also indicate that T.T. may have sleep problems, but may be high
energy. Borderline personality traits were elevated, as were antisocial behavior and
physical aggression. T.T. can act impulsively and exercise poor judgment. She seems to
see the complexity in the world and does not view things as only black or white. She
may view others—parents and other authorities—as unsupportive. She is likely to see the
world as hostile and has difficulty trusting others.
{¶ 90} T.T. wants to be independent and has a strong sense of fairness, but the
tests show an elevation in self-centeredness and insistence on getting her way; if things
don’t go her way, she becomes agitated. When she feels disrespected, she may respond
with violence and may gravitate to weapons as a way to feel safe. She can demonstrate
disregard for others. She may have physical manifestations of stress, such as stomach
issues.
{¶ 91} Dr. Babula believes that T.T. is aware that she needs help. He feels that
she needs structure, guidance, direction, and a desire to succeed in order to make the right
decisions. In terms of treatment, T.T. may need to learn appropriate assertiveness and to
recognize the source of her thoughts and feelings. T.T’s risk of reoffending is average.
26.
{¶ 92} In intelligence testing, T.T.’s crystallized intelligence was average.
Processing and problem-solving were slightly below average. But she is not low
intelligence; she does not have major intellectual deficits. T.T. skipped school frequently
before being confined with DYS, so her schooling in DYS may have strengthened her
intelligence. This probably would not have affected her decision making.
{¶ 93} T.T. takes Adderall for ADHD, trazodone and melatonin for sleep, and has
an IUD. Dr. Babula does not know if there is a problem with her taking her medications,
but if she does not take them, it could lead to her being more impulsive and more
anxious. ADHD medications may manage T.T.’s impulsivity. People can be taught to
control impulsivity—how to calm down, pause, and make a choice. Also, as a teen,
T.T.’s frontal cortex is still developing. Age, good treatment, and reduced threats may
improve a person’s ability to remain calm and decrease impulsivity. Violence also tends
to decrease with age.
{¶ 94} Dr. Babula believes that T.T. can be helped in the juvenile system and three
years is not too short a time to fix these things. T.T. would need support and structure to
work on her impulsivity and reactivity. She needs an environment with role models and
people who are similarly working toward success. She should not be around people who
consistently test her limits because that’s when she tends to react impulsively. She also
needs support in terms of education, job training, and skills. T.T. expressed that she
understands that she needs to accept help in the system instead of fighting it.
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{¶ 95} Dr. Babula agrees that past behavior is the best predictor of future
behavior, but he believes other factors must also be considered. He believes that
resources and structure available must also be considered. Also, past behaviors could
have been influenced by external factors such as drug use. The evaluations suggest that
T.T. tends to work by external motivation. She needs to know that she can either get
something or lose something based on her behavior.
{¶ 96} On cross-examination, Dr. Babula acknowledged that T.T. has been in a
secure facility since December of 2016, but said that he would not necessarily expect
T.T. to have ceased her fight or flight reaction during that time because that response is
still being triggered by other people. He agreed that some people that are exposed to
violence in their youth may become violent.
{¶ 97} T.T. reported to Dr. Babula that she had been bullied in the facility. Dr.
Babula did not believe that T.T. had, in fact, been the bully. After reviewing various
incident reports showing that T.T. had assaulted others, threatened staff members, and
exhibited demeaning and disrespectful behavior toward staff, he conceded that T.T.
displayed bullying or aggressive behavior in those instances, but said he would want to
know more about each incident. He agreed that to the extent T.T. told him that the crutch
incident was her only incident of physical aggression, this was untrue. He also agreed
that her behavior was disruptive to DYS programming.
28.
{¶ 98} While Dr. Babula was aware that T.T. was meeting with a therapist weekly,
he was not specifically aware of all the programming that had been made available to
T.T. T.T. self-reported that before the crutch incident, she had not spoken to her mother
or therapist in weeks. He had no reason to dispute information provided by the state
indicating that she had actually spoken to her mother for five hours that day. He agreed
that when self-reporting, T.T. had sometimes “sugarcoated” things.
{¶ 99} Dr. Babula conceded that the incident reports the state showed him
demonstrate more violent acts than what T.T. reported to him and he agreed that “T.T.
has not shown consistent change at DYS” and has not behaved consistently. He believes
that the external influences at CAS are affecting the choices she is making, but he agreed
that there is never going to be a way for everything to be perfect for T.T., whether she is
at the institution or at home.
{¶ 100} Dr. Babula believes that T.T. has shown periods of change along with
periods of regressing. He believes that it is likely she will have more periods of positive
behavior. Exposure to positive social supports, minimizing aggravating factors, structure,
guidance, mental health treatment, and job training will assist in improving her sense of
identity and her behavior. Dr. Babula agrees with Dr. Cassel that T.T. demonstrates
some characteristics of antisocial personality disorder, but he would have to look at the
exact criteria to determine whether she meets the full diagnosis.
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J. The Trial Court Judgment
{¶ 101} Following the hearing, the trial court granted the state’s motion,
terminated the juvenile portion of T.T.’s sentence, invoked the adult portion of her
sentence, and transferred T.T. to the Ohio Department of Rehabilitation and Correction.
T.T. appealed. She assigns the following errors for our review.
Assignment of Error I:
The juvenile court erred when it found that T.T. met the statutory
requirements for invocation by being “admitted to a department of youth
services facility” when she was placed at the Center for Adolescent
Services, a community corrections facility. R.C. 2152.14(E).
Assignment of Error II:
The lower court erred when it determined that T.T. engaged in
conduct that created a substantial risk to the safety or security of the
institution, community, or victim and that T.T. could not be rehabilitated by
her 21st birthday in the absence of clear and convincing evidence. Fifth and
Fourteenth Amendments to the U.S. Constitution; Article 1, Section 16,
Ohio Constitution; and R.C. 2152.14(E).
Assignment of Error III:
T.T. was denied effective assistance of counsel, in violation of the
Fifth, Sixth, and Fourteenth Amendments to the U.S. Constitution; and
Article I, Sections 10, and 16, Ohio Constitution.
30.
II. Law and Analysis
{¶ 102} Under R.C. 2152.14(E)(1), “[t]he juvenile court may invoke the adult
portion of a person’s serious youthful offender dispositional sentence if the juvenile court
finds all of the following on the record by clear and convincing evidence”:
(a) The person is serving the juvenile portion of a serious youthful
offender dispositional sentence.
(b) The person is at least fourteen years of age and has been
admitted to a department of youth services facility, or criminal charges are
pending against the person.
(c) The person engaged in the conduct or acts charged under
division (A), (B), or (C) of this section, and the person’s conduct
demonstrates that the person is unlikely to be rehabilitated during the
remaining period of juvenile jurisdiction.
{¶ 103} In her first assignment of error, T.T. argues that the state failed to show
that she was “admitted to a department of youth services facility,” as required under R.C.
2152.14(E)(1)(b). In her second assignment of error, T.T. argues that the state failed to
prove that she engaged in conduct described in R.C. 2152.14(E)(1)(c), and that she is
unlikely to be rehabilitated by her 21st birthday. And in her third assignment of error,
T.T. argues that trial counsel was ineffective for failing to describe DYS’s duties to
rehabilitate T.T. and for failing to inquire into whether DYS exhausted all of its options
before requesting invocation.
31.
A. “Admitted to a Department of Youth Services Facility”
{¶ 104} In her first assignment of error, T.T. argues that the trial court erred when
it found that T.T. had been admitted to a “department of youth services facility.” T.T.
maintains that she was placed at CAS in Montgomery County, which she insists is a
“community corrections facility” that is a less secure, community placement—not a DYS
facility. She maintains that while DYS may have a relationship with CAS whereby CAS
“is authorized to place females committed to DYS,” it is not a DYS facility, therefore,
she was not statutorily eligible to have her SYO invoked.
{¶ 105} The state responds that for purposes of R.C. 2152.14(E), CAS is a DYS
facility. It explains that DYS contracts with CAS to provide a facility for female youths
committed to DYS, DYS placements at CAS are under DYS supervision, placement at
CAS is not “in lieu of” commitment to DYS, CAS is a “secure facility” under contract
with DYS, and CAS is not a “community corrections facility” for female youths in DYS
custody.
{¶ 106} Under R.C. 2152.02(B), “[a]dmitted to a department of youth services
facility” is a defined term that means “admission to a facility operated, or contracted for,
by the department * * *.” (Emphasis added.) “Facility” is not defined, but R.C.
5139.36(E)(2) provides that “[a] child in the custody of the department of youth services
may be placed in a community corrections facility in accordance with either division
(E)(2)(a) or (b) of this section.” A “community corrections facility” is “a county or
multicounty rehabilitation center for felony delinquents who have been committed to the
32.
department of youth services and diverted from care and custody in an institution and
placed in the rehabilitation center pursuant to division (E) of section 5139.36 of the
Revised Code.” R.C. 5139.01(14).
{¶ 107} CAS is a community correction facility. But R.C. 5139.36(E)(2)(b)
authorizes DYS “with the consent of the juvenile court with jurisdiction over the
Montgomery county [CAS],” to “establish a single unit within the community corrections
facility for female felony delinquents committed to the department’s custody.” DYS
“may place a female felony delinquent committed to [its] custody into the unit in the
community corrections facility.” R.C. 5139.36(E)(2)(b). Although placed in the
community corrections facility, the child “remain[s] in the legal custody of the
department of youth services * * *.” R.C. 5139.36(E)(2).
{¶ 108} Here, the state presented evidence that DYS has been placing female
delinquent youths at CAS since 2013. CAS maintains a 15-bed unit specifically
established for female felony delinquents placed there by DYS. T.T. occupies one of
those 15 beds. Her treatment is overseen by the female program administrator for DYS
and DYS controls her placement. We, therefore, find no error in the trial court’s
conclusion that T.T. had been admitted to a “department of youth services facility.”
{¶ 109} We find T.T.’s first assignment of error not well-taken.
B. Substantial Risk and Rehabilitation
{¶ 110} In her second assignment of error, T.T. argues that the state did not prove
by clear and convincing evidence that T.T.’s behavior created a substantial risk to CAS,
33.
the victim, or her community. She maintains that the evidence showed that she had some
“difficult days” at CAS, but she insists that none of the government’s witnesses believed
that her behavior was negative all the time or that they were fearful of her. Rather, she
had periods of good behavior, most of her infractions were low-level, DYS was open to
allowing T.T. to transfer to a step down facility, and her behavior will improve with time
and proper treatment.
{¶ 111} T.T. also contends that the state did not prove by clear and convincing
evidence that she is unlikely to be rehabilitated by her 21st birthday. She points out that
youth in other jurisdictions—particularly male youths—receive multiple chances at
different facilities to improve their behavior before invoking their adult sentence, DYS
and CAS did not provide the appropriate treatment to rehabilitate her by her 21st
birthday, and multiple witnesses testified that with appropriate treatment from DYS, T.T.
could be rehabilitated by her 21st birthday.
{¶ 112} The state responds that the record contains clear and convincing evidence
supporting the conclusion that T.T. created a substantial risk to CAS and the community.
Specifically, it contends that (1) T.T. assaulted G.W. with a wooden crutch, which, at a
minimum, is a first-degree misdemeanor; (2) T.T. struck Wood during a routine patdown;
(3) T.T. used her fist to strike another youth at CAS and engaged in other fights with her
peers; (4) T.T. threatened other CAS staff; (5) Wood, Shaffer, and Mitchell testified that
T.T.’s behavior had a negative effect on staff and other youths at CAS, undermined the
security of the institution, and affected programming; (6) T.T.’s periods of good behavior
34.
were calculated not to achieve change, but rather to get what she wanted; (7) thirty
percent of T.T.’s infractions were for aggressive behaviors; and (8) even when she was
not directly involved in misconduct, T.T. was often perceived as “pulling the strings”
when others committed infractions.
{¶ 113} The state also insists that the record contains clear and convincing
evidence supporting the conclusion that T.T. will not be rehabilitated in the juvenile
system. Specifically, it contends that T.T. (1) minimized or refused to accept
responsibility for her actions; (2) failed to follow institutional rules and participate in
programming; and (3) showed little improvement despite two years in the juvenile
system.
{¶ 114} The state emphasizes that Dr. Cassel evaluated T.T. both before and after
her stay at CAS, and despite her initial recommendation that T.T. could be rehabilitated
in the juvenile justice system, she changed her opinion based on T.T.’s behavior at CAS,
the results of psychological testing, and T.T.’s problematic tendency not to accept
responsibility for her actions. To the extent that Dr. Babula offers a contrary opinion, the
state contends that that opinion is premised on a lack of knowledge of the resources made
available to T.T. and inaccurate self-reporting by T.T. It maintains that T.T. was given
ample program opportunities, therapeutic treatment, access to appropriate medication,
and opportunities for structured therapy, but T.T. failed to respond to any of these
approaches.
35.
{¶ 115} In order to invoke the adult portion of a person’s SYO dispositional
sentence, the juvenile court was required to find by clear and convincing evidence that
T.T. committed an act that is a violation of the rules of the institution and that could be
charged as any felony or as a first degree misdemeanor offense of violence if committed
by an adult, or engaged in conduct that creates a substantial risk to the safety or security
of the institution, the community, or the victim, and that her conduct demonstrates that
she is unlikely to be rehabilitated during the remaining period of juvenile jurisdiction.
R.C. 2152.14(E).
{¶ 116} “Clear and convincing evidence is that measure or degree of proof which
will produce in the mind of the trier of facts a firm belief or conviction as to the
allegations sought to be established. It is intermediate, being more than a mere
preponderance, but not to the extent of such certainty as is required beyond a reasonable
doubt as in criminal cases. It does not mean clear and unequivocal.” (Emphasis in
original.) Cross v. Ledford, 161 Ohio St. 469, 477, 120 N.E.2d 118 (1954). “Where the
degree of proof required to sustain an issue must be clear and convincing, a reviewing
court will examine the record to determine whether the trier of facts had sufficient
evidence before it to satisfy the requisite degree of proof.” Id.{¶ 117} We review a trial court’s decision to impose the adult portion of a SYO
sentence under an abuse-of-discretion standard. In re M.M., 3d Dist. Allen No. 1-17-56,
2018-Ohio-1110, ¶ 11. An abuse of discretion connotes that the trial court’s attitude is
unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217,
36.
219, 450 N.E.2d 1140 (1983). An unreasonable decision is one that lacks sound
reasoning to support the decision. Hageman v. Bryan City Schools, 10th Dist. Franklin
No. 17AP-742, 2019-Ohio-223, ¶ 13. “An arbitrary decision is one that lacks adequate
determining principle and is not governed by any fixed rules or standard.” Id. quoting
Porter, Wright, Morris & Arthur, LLP v. Frutta del Mondo, Ltd., 10th Dist. Franklin No.
08AP-69, 2008-Ohio-3567, ¶ 11. And an unconscionable decision is one “that affronts
the sense of justice, decency, or reasonableness.” Id.{¶ 118} Here, the state presented evidence that T.T. committed an act that is a
violation of the rules of the institution and that could be charged as a felony or as a first
degree misdemeanor offense of violence if committed by an adult. Specifically, it
presented evidence that T.T. assaulted G.W. with a wooden crutch, striking her with it
until it broke. Indeed, this conduct was captured on video. While we are unaware of the
outcome, T.T. was, in fact, charged with assault in connection with the incident. In re
T.T., 2d Dist. Montgomery No. 28326, 2019-Ohio-3002, ¶ 2. Additionally, the state
presented evidence that just a month before the hearing on the state’s motion to invoke
her adult sentence, T.T. struck Wood during a routine patdown.
{¶ 119} The state also presented evidence that T.T. engaged in conduct that
creates a substantial risk to the safety or security of the institution. Shaffer testified that
T.T. committed 161 infractions of CAS rules, 53 of which were considered higher-level
rule violations. Shaffer testified unequivocally that T.T.’s conduct—which includes
other acts of physical aggression and threats against peers and staff members—presents a
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safety risk to the institution. T.T. engaged in this behavior despite repeated admonitions
from CAS and DYS staff that she risked having her adult sentence invoked.
{¶ 120} We conclude that there is sufficient evidence to support the trial court’s
conclusion that there is clear and convincing evidence that T.T. committed an act that is a
violation of the rules of the institution and that could be charged as any felony or as a first
degree misdemeanor offense of violence if committed by an adult, and engaged in
conduct that creates a substantial risk to the safety or security of the institution.
{¶ 121} As for whether T.T.’s conduct demonstrates that she is unlikely to be
rehabilitated during the remaining period of juvenile jurisdiction, the evidence presented
at the hearing demonstrates that T.T. has made progress academically. But it also
demonstrates that T.T. has refused to engage in CBT, she has committed repeated rule
infractions, her behavior has regressed, and she has not exhibited a desire to change.
{¶ 122} While T.T. was described as “smart” and “talented,” witnesses testified
that she has used those attributes to manipulate her peers rather than to make necessary
changes. Periods of good behavior seem to be motivated by a desire to “size up her next
opportunity” rather than for the purpose of making change. Many of the professionals
who have worked with T.T. expressed that she is able to change, as evidenced by her
ability to sometimes follow the rules, but she has repeatedly chosen not to change.
{¶ 123} Mitchell, who has worked with youth for 37 years, said that T.T. is not
progressing. Jefferson described that T.T. did well initially, but her behavior has
regressed. Shaffer, who has more than 20 years’ experience in the juvenile justice system
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and has seen successful youth at the facility, said that he does not expect to see long-term
improvement from T.T. And both Shaffer and Mitchell expressed that T.T.’s behavior
toward her primary therapist has been oppositional and aggressive and other witnesses
described that she remains defiant and argumentative with staff.
{¶ 124} In addition to the professionals from DYS and CAS who work with T.T.,
Dr. Cassel concluded that it is unlikely that T.T. will be successfully rehabilitated in the
juvenile system. T.T.’s past behavior—which Dr. Cassel feels is most predictive of what
to expect of her future behavior—suggests that significant change in T.T.’s behavior is
unlikely because despite almost two years at CAS, she continues to test the limits,
threaten people, get involved in confrontations, interfere with the process instead of learn
from it, and refuse to accept responsibility for her own actions.
{¶ 125} To the extent that Dr. Babula testified that it is possible for T.T. to be
rehabilitated in the time left before she turns 21, Dr. Babula acknowledged that he was
not aware of the therapies and treatments already made available to T.T., his opinions
were premised, in part, on inaccurate information self-reported to him by T.T., and he
conditioned his opinions on the ability to shelter T.T. from “aggravating factors” in her
environment that cannot feasibly be eliminated.
{¶ 126} We conclude that there is sufficient evidence to support the trial court’s
conclusion that there is clear and convincing evidence that T.T. is unlikely to be
rehabilitated during the remaining period of juvenile jurisdiction. The trial court did not
39.
abuse its discretion in granting the state’s motion to invoke the adult portion of T.T.’s
sentence.
{¶ 127} We find T.T.’s second assignment of error not well-taken.
C. Ineffective Assistance of Counsel
{¶ 128} In her third assignment of error, T.T. argues that she received ineffective
assistance of trial counsel. Specifically, she maintains that trial counsel failed to (1)
describe the statutory duties that DYS owed under R.C. 5139.04(B) to rehabilitate her,
and (2) inquire into whether DYS had exhausted all of its options before it requested
invocation. T.T. contends that these deficiencies prejudiced her because it deprived the
juvenile court of “vital context regarding the invocation of SYOs and crucial evidence
regarding T.T.’s likelihood of rehabilitation in the juvenile system.”
{¶ 129} The state responds that R.C. 5139.04(B) requires DYS to “[r]eceive
custody of all children committed to it under Chapter 2152. of the Revised Code, cause a
study to be made of those children, and issue any orders, as it considers best suited to the
needs of any of those children and the interest of the public, for the treatment of each of
those children[.]” It argues that R.C. 5139.04(B) does not “absolve the juvenile from a
concomitant responsibility to assist in rehabilitation efforts, to participate in
programming, to cooperate with staff, and to refrain from committing acts of violence or
issuing threats of violence.” It insists that reminding the court of the statutory duties set
forth in R.C. 5139.04(B) would have had no effect on the outcome of the case.
40.
{¶ 130} With respect to T.T.’s claim that her counsel failed to inquire into whether
DYS had exhausted all options, the state argues that the witnesses testified that T.T. did
not perform well at CAS and was unsuccessful at Pomegranate. It maintains that the
programming was explained in detail, as were T.T.’s therapist’s efforts and T.T.’s
response to those efforts. Additionally, numerous staff members testified that they saw
no improvement from T.T., and the program director was convinced that any perception
of improvement would be misleading because it would have been engineered by T.T. to
give the appearance of rehabilitation despite the absence of truly-internalized change.
The state insists that asking about other available options would not have changed the
outcome of the proceeding.
{¶ 131} In reply, T.T. contends that the state’s argument does not consider the
trauma T.T. suffered and the fact that DYS did not treat her for this trauma, instead
focusing on correcting her behavior without treating the underlying causes of it. She
believes that if trial counsel would have pointed out that DYS was responsible for
providing treatment best suited to rehabilitate T.T. and done further investigation into
whether all treatment options had been exhausted, the court could have considered other
placement and treatment options for T.T. instead of invoking her adult sentence.
{¶ 132} In order to prevail on a claim of ineffective assistance of counsel, an
appellant must show that counsel’s conduct so undermined the proper functioning of the
adversarial process that the trial court cannot be relied on as having produced a just
result. State v. Shuttlesworth, 104 Ohio App.3d 281, 287, 661 N.E.2d 817 (7th
41.
Dist.1995). To establish ineffective assistance of counsel, an appellant must show “(1)
deficient performance of counsel, i.e., performance falling below an objective standard of
reasonable representation, and (2) prejudice, i.e., a reasonable probability that, but for
counsel’s errors, the proceeding’s result would have been different.” State v. Hale, 119
Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶ 204, citing Strickland v.
Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” State v. Sanders, 94 Ohio St.3d 150, 151, 761 N.E.2d 18 (2002).
{¶ 133} First, this court observes that the juvenile judge here is an experienced
jurist who is no doubt aware of DYS’s responsibilities to T.T. We also observe that it
was clear from Shaffer and Weir’s testimony that—in addition to a wide variety of
programming—treating T.T.’s trauma was a central focus of their rehabilitative efforts;
T.T. refused to participate in that therapy. Weir explained that T.T. needs therapy for her
trauma, but she emphasized that T.T. had to be open to it—and she was not. In fact,
instead of opening herself to this therapy, T.T. exhibited oppositional and aggressive
behavior toward her therapist.
{¶ 134} The resounding theme from the professionals who worked with T.T. is
that she chose to reject the assistance made available to treat her trauma and effect
change in her behavior. We find that the outcome of the proceedings would not have
been altered had trial counsel pointed out to the juvenile judge DYS’s responsibilities to
rehabilitate T.T. or inquired about what more DYS could have done to rehabilitate T.T.
42.
{¶ 135} We find T.T.’s third assignment of error not well-taken.
III. Conclusion
{¶ 136} We conclude that T.T. was “admitted to a department of youth services
facility.” R.C. 5139.36(E)(2)(b) authorized CAS to “establish a single unit” within the
facility for “female felony delinquents committed to the department’s custody” and it
authorized DYS to “place a female felony delinquent committed to [its] custody” into
that unit. “[A]dmitted to a department of youth services facility,” includes admission to a
facility “contracted for” by DYS. We find T.T.’s first assignment of error not well-taken.
{¶ 137} We conclude that there is sufficient evidence to support the trial court’s
conclusions that (1) there is clear and convincing evidence that T.T. committed an act
that is a violation of the rules of the institution and that could be charged as any felony or
as a first degree misdemeanor offense of violence if committed by an adult, or engaged in
conduct that creates a substantial risk to the safety or security of the institution; and (2)
there is clear and convincing evidence that T.T. is unlikely to be rehabilitated during the
remaining period of juvenile jurisdiction. We find T.T.’s second assignment of error not
well-taken.
{¶ 138} We conclude that trial counsel was not ineffective for failing to point out
to the juvenile judge DYS’s responsibilities under R.C. 5139.04(B) to rehabilitate T.T. or
inquire about what more DYS could have done to rehabilitate T.T. We find T.T.’s third
assignment of error not well-taken.
43.
{¶ 139} We affirm the October 31, 2019 judgment of the Lucas County Court of
Common Pleas, Juvenile Division. T.T. is ordered to pay the costs of this appeal under
App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Christine E. Mayle, J.
_______________________________
Gene A. Zmuda, P.J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
44.