[Cite as In re B.D., 2020-Ohio-4128.]




                     IN THE COURT OF APPEALS
                 FIRST APPELLATE DISTRICT OF OHIO
                      HAMILTON COUNTY, OHIO


IN RE: B.D.                                      APPEAL NO. C-200177
                                        :        TRIAL NO. 19-2195Z


                                        :           O P I N I O N.




Appeal From: Hamilton County Juvenile Court

Judgment Appealed From Is: Appeal Dismissed

Date of Judgment Entry on Appeal: August 19, 2020



Joseph T. Deters, Hamilton County Prosecuting Attorney, and Alex S. Havlin,
Assistant Prosecuting Attorney, for Appellee State of Ohio,

Raymond T. Faller, Hamilton County Public Defender, and Julie Kahrs Nessler,
Assistant Public Defender, for Appellant B.D.
                      OHIO FIRST DISTRICT COURT OF APPEALS


BERGERON, Judge.

       {¶1}     After entertaining a hearing on a “Motion to Divert Pursuant to Safe

Harbor,” the juvenile court denied any relief, which prompted this appeal by

appellant B.D. The state, however, responded by moving to dismiss the appeal,

challenging our jurisdiction based on a lack of a final appealable order. In this issue

of first impression in Ohio, we conclude that the order before us does not constitute a

final appealable order, and we therefore must dismiss the appeal for lack of

jurisdiction.

                                               I.

       {¶2}     Appellant B.D. seeks to appeal from the juvenile court’s denial of his

motion to divert under R.C. 2152.021(F)’s safe harbor provision.          The General

Assembly promulgated R.C. 2152.021(F) in 2012 as part of a broader legislative

enactment to address serious issues related to human trafficking.            See 2012

Am.Sub.H.B. No. 262, Final Bill Analysis.      Other facets of the legislation required

publishing of statistical data related to human trafficking, additional training for

peace officers in investigating and handling human trafficking cases, creating a fund

for victims of human trafficking, and increased criminal penalties for trafficking in

persons. Id.    Therefore, R.C. 2152.021(F) furthered the purposes of the legislation

by providing a diversionary program for allegedly delinquent children who might be

victims of human trafficking. Under division (F), where the child was charged with

certain acts akin to solicitation or prostitution if committed by an adult, or the court

has reason to believe that the child is a victim of human trafficking and the charged

act relates to that victimization, the court may schedule a hearing to consider

whether to hold a complaint in abeyance “pending the child’s successful completion

of actions that constitute a method to divert the child from the juvenile court



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system[.]” R.C. 2152.021(F)(1). If the complaint is held in abeyance and the juvenile

completes the mandated diversion actions to the court’s satisfaction, then “the court

shall dismiss the complaint[.]” R.C. 2152.021(F)(5).

       {¶3}   In May 2019, B.D. was named in a complaint filed in the Hamilton

County Juvenile Court alleging him to be a delinquent child. A few months later,

B.D. filed his “Motion to Divert Pursuant to Safe Harbor” wherein he alleged,

pursuant to R.C. 2152.021(F), that he was the victim of human trafficking and the

acts with which he was charged were related to his victimization, and requested a

hearing on the matter.     The juvenile court held an initial hearing wherein it

concluded that it lacked jurisdiction to rule on the motion. Through a subsequent

agreement between the parties, however, the juvenile court moved forward with a

hearing to address the merits of the motion, after which it denied B.D.’s motion to

divert, declining to find B.D. a victim of human trafficking and denying diversion

under R.C. 2152.021(F). B.D. subsequently appealed that denial of the motion by the

juvenile court.

                                           II.

       {¶4}   The state challenges our jurisdiction to address B.D.’s appeal, asserting

that the denial of the motion to divert lacks the hallmarks of a final order for our

review. The Ohio Constitution, of course, limits appellate jurisdiction to review of

“final orders” of lower courts as provided by law. Ohio Constitution, Article IV,

Section 3(B)(2).    For our present purposes, we generally turn to two principal

statutes by which appellate courts enjoy jurisdiction to review judgments or final

orders, R.C. 2501.02 and 2505.02. In re D.H., 152 Ohio St.3d 310, 2018-Ohio-17, 95

N.E.3d 389, ¶ 5. Initially, B.D. concedes that the denial of the motion to divert does

not satisfy R.C. 2501.02 based on the absence of any adjudication in this instance.



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See R.C. 2501.02 (“[T]he court shall have jurisdiction upon an appeal * * * to review

* * * the finding, order, or judgment of a juvenile court that a child is delinquent[.]”).

Instead, B.D. sets his sights on R.C. 2505.02(B)(2) and (4), maintaining that the

denial of the motion to divert satisfies the “final order” requirement under either of

these provisions. We consider each in turn.

                                                A.

        {¶5}   R.C. 2505.02(B) delineates when various types of orders may satisfy

the requisite jurisdictional finality. In particular, R.C. 2505.02(B)(2) pertains to an

order that “affects a substantial right made in a special proceeding or upon a

summary application in an action after judgment[.]”          The Ohio Supreme Court

explains that an order satisfying R.C. 2505.02(B)(2) must (1) be made at a special

proceeding, (2) affect a substantial right, and (3) effectively foreclose the party’s

ability to protect the substantial right without immediate appellate review.

Thomasson v. Thomasson, 153 Ohio St.3d 398, 2018-Ohio-2417, 106 N.E.3d 1239,

¶ 11.   Initially, R.C. 2505.02(A)(2) defines a special proceeding as an action or

proceeding specially created by statute and not in existence at law or equity prior to

1853. Because R.C. 2152.021(F)’s safe harbor provision, providing for both a hearing

and the juvenile court’s ability to hold the complaint in abeyance, was created by

statute in 2012 and is a proceeding in juvenile court, this checks the first box under

R.C. 2505.02(B)(2). See In re J.C., 4th Dist. Ross No. 15CA3510, 2016-Ohio-5362,

¶ 14, citing State ex rel. Fowler v. Smith, 68 Ohio St.3d 357, 360, 626 N.E.2d 950

(1994) (“Juvenile court proceedings are special proceedings.”).

        {¶6}   B.D.’s argument stumbles, however, under the second prong, which

requires that the order affect a “substantial right.” The statute defines a substantial

right as “a right that the United States Constitution, the Ohio Constitution, a statute,



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the common law, or a rule of procedure entitles a person to enforce or protect.” R.C.

2505.02(A)(1).    Adding some gloss to that language, the Ohio Supreme Court

explains that a “substantial right is, in effect, a legal right that is enforced and

protected by law.” State v. Coffman, 91 Ohio St.3d 125, 127, 742 N.E.2d 644 (2001).

       {¶7}    B.D. insists that the potential shelter afforded to certain juveniles

under the safe harbor provision implicates such a substantial right. While we have

found no caselaw directly on point regarding this issue, courts generally consider

various factors in determining whether a statute protects a legal right so as to satisfy

R.C. 2505.02(B)(2)’s “substantial right” requirement. Typically, where the statute is

permissive, “conferr[ing] substantial discretion [to a court] while simultaneously

making no provision for appellate review,” courts decline to find a legal right at stake

for purposes of R.C. 2505.02(A)(1) and (B)(2). Id. at 128 (no legal right to shock

probation under statute and therefore no final appealable order existed). In other

words, the more permissive and discretionary the statute at hand, the steeper the hill

to climb to establish a “substantial right.”

       {¶8}    Without any extant caselaw, we find persuasive decisions involving

R.C. 2951.041’s “Intervention in lieu of conviction.”      Similar to the safe harbor

provision, R.C. 2951.041 allows for intervention in certain cases where drugs or

alcohol constituted a factor leading to the commission of the criminal offense, which

entitles a trial court to grant intervention to certain qualifying offenders. R.C.

2951.041 (A) and (C). If the court determines that the offender qualifies, then he or

she receives an intervention plan, and upon successful completion, the trial court

must dismiss the proceedings against the offender. R.C. 2951.041 (D) and (E).

       {¶9}    With regard to the finality of an order arising under R.C. 2951.041

though, courts uniformly reject the notion that intervention in lieu of conviction



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satisfies a final order under R.C. 2505.02(B)(2), largely hinging their determinations

on the permissive nature of the statute. R.C. 2951.041 “does not create a legal right

to intervention in lieu of conviction. Rather, the statute is permissive in nature and

provides that the trial court may, in its discretion, grant the defendant an

opportunity to participate[.]” (Emphasis sic.) State v. Dempsey, 8th Dist. Cuyahoga

No. 82154, 2003-Ohio-2579, ¶ 9; State v. Roome, 2017-Ohio-4230, 92 N.E.3d 59, ¶ 7

(12th Dist.) (noting that “even when an offender is eligible * * * the statute does not

create a legal right[.]”). Appellate courts repeatedly recognize that the statute’s

permissive nature and substantial discretion bestowed on the trial court indicate the

lack of a substantial right at issue for purposes of R.C. 2505.02(B)(2). See State v.

Bellman, 9th Dist. Lorain No. 15CA010525, 2015-Ohio-2303, ¶ 10 (noting that

intervention in lieu of conviction is not a right provided to defendants and therefore

not a final appealable order); State v. Radebaugh, 3d Dist. Marion No. 9-14-13,

2015-Ohio-1186, ¶ 5 (reiterating permissive nature of R.C. 2951.041).

       {¶10} Just as with intervention in lieu of conviction, a survey of the language

of R.C. 2152.021(F) confirms the permissive nature and the juvenile court’s wide

discretion on the matter. The statute provides that a juvenile court, any time after

the filing of the complaint and before adjudication, “may” convene a hearing to

determine whether to hold the complaint in abeyance if certain factors apply. R.C.

2152.021(F)(1). Similarly, if the juvenile court decides to proceed with a hearing, the

decision to hold the complaint in abeyance remains discretionary: “If after a hearing

the court decides to hold the complaint in abeyance * * *.” R.C. 2152.021(F)(4). B.D.

attempts to distinguish the intervention in lieu of conviction statute by asserting that

the safe harbor provision’s language requiring that the juvenile court “shall promptly

appoint a guardian ad litem” is illustrative of a substantial right.               R.C.



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2152.021(F)(3). This mandate, however, only arises if the juvenile court decides to

hold a hearing in the first place. R.C. 2152.021(F)(3). Thus, while certain obligations

arise if a hearing is held, the overall scheme of part (F) is permissive, and the

decision to hold the complaint in abeyance falls within the discretion of the juvenile

court.

         {¶11} Just as with intervention in lieu of conviction, we find that the

permissive and discretionary nature of division (F) reveals the absence of any

“substantial right” at play for purposes of R.C. 2505.02(B)(2) and appellate review.

See Bellman at ¶ 9; Coffman, 91 Ohio St.3d at 127, 742 N.E.2d 644 (noting that no

legal right for purposes of R.C. 2505.02(B)(2) created where terms of the statute at

issue were permissive in nature, leaving the decision to grant or deny the motion

within the plenary power of the court). And this conclusion is underscored by the

statute’s conspicuous lack of any provision for appellate review. Coffman at 128 (no

final appealable order where statute granted the trial court substantial discretion

“while simultaneously making no provision for appellate review.”). The General

Assembly set the juvenile courts adrift with very few guideposts, but if it wanted to

facilitate interlocutory review, it could have added such a provision to the statute.

                                               B.

         {¶12} Alternatively, B.D. posits that the denial of his motion to divert under

the safe harbor provision constitutes a final appealable order under R.C.

2505.02(B)(4).     To satisfy R.C. 2505.02(B)(4), an order must (1) constitute a

provisional remedy, (2) determine the action with respect to the provisional remedy

and prevent a judgment, and (3) prevent the appealing party from meaningful or

effective review if delayed until after a final judgment. In re D.H., 152 Ohio St.3d

310, 2018-Ohio-17, 95 N.E.3d 389, at ¶ 11; R.C. 2505.02(B)(4)(a-b). In determining



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whether the juvenile court’s denial of the motion to divert satisfies R.C.

2505.02(B)(4), we find that it falters at a threshold level because a proceeding under

R.C. 2152.021(F) does not constitute a provisional remedy.

       {¶13} R.C. 2505.02(A)(3) defines a provisional remedy as “a proceeding

ancillary to an action,” including among other things “a proceeding for a preliminary

injunction, attachment, discovery of privileged matter, suppression of evidence” and

certain other prima-facie showings as required by statute.       A touchstone of an

ancillary proceeding for R.C. 2505.02(A)(3) purposes is a proceeding that is

attendant upon or aids another proceeding. State v. Muncie, 91 Ohio St.3d 440, 449,

746 N.E.2d 1092 (2001) (determining that petition for forced medication constituted

a provisional remedy). Ancillary proceedings are “separate procedures tied to a main

action, acting in furtherance of the main action but with their own lives. Though

owing their existence to the underlying action they are definable offshoots from the

main action.” Community First Bank & Trust v. Dafoe, 108 Ohio St.3d 472, 2006-

Ohio-1503, 844 N.E.2d 825, ¶ 26 (holding that a court’s order staying an action is not

a final order under R.C. 2505.02).

       {¶14} B.D. maintains that the motion to divert pursuant to the safe harbor

provision is akin to a preliminary injunction or the bindover process to adult court,

and therefore satisfies the provisional remedy requirement.      The Ohio Supreme

Court recently confirmed that both mandatory and discretionary bindover

proceedings constitute provisional remedies ancillary to subsequent adult court

proceedings.   In re D.H. at ¶ 13 (finding that discretionary-bindover hearing is

ancillary to the adult-court proceedings which would determine the juvenile’s guilt

and impose a sentence); In re A.J.S., 120 Ohio St.3d 185, 2008-Ohio-5307, 897

N.E.2d 629, ¶ 23 (determining that a mandatory bindover hearing in the juvenile



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court is ancillary to grand jury proceedings and to adult criminal prosecution and

therefore a provisional remedy). But here, a hearing on a motion to divert pursuant

to R.C. 2152.021(F) is not part of the bindover process. See R.C. 2152.021(F)(1) (“At

any time after the filing of a complaint alleging that a child is a delinquent and before

adjudication, the court may hold a hearing to determine whether to hold the

complaint in abeyance[.]”). Nothing within division (F) implicates a proceeding that

is ancillary to being prosecuted as an adult; in fact, successful completion of the

diversionary plan results in dismissal of the juvenile court proceedings.             R.C.

2152.021(F)(5) (“If * * * the child complies with the conditions of abeyance and

completes the diversion actions to the court’s satisfaction, the court shall dismiss the

complaint[.]”).

       {¶15} Similarly, we disagree with B.D.’s classification of the proceedings as

analogous to a preliminary injunction.          As the analysis above confirms, R.C.

2152.021(F) better resembles a proceeding akin to intervention in lieu of conviction,

which is not considered an ancillary proceeding constituting a provisional remedy

under R.C. 2505.02(B)(4). See Bellman, 9th Dist. Lorain No. 15CA010525, 2015-

Ohio-2303, at ¶ 11, quoting Dafoe at ¶ 30 (“[I]ntervention in lieu of conviction is not

‘a separate matter from the trial on the merits’ or ‘a proceeding with its own life.’ ”).

       {¶16} Moreover, under R.C. 2152.021(F)(4) the juvenile court may hold a

complaint in abeyance for only a limited period (initially 90 days, with a maximum of

270 days) while the juvenile engages in the diversion program. But if the juvenile

fails to complete the diversion activities, then “the court shall proceed upon the

complaint,” and conversely, if the juvenile completes the diversion actions to the

court’s satisfaction, it results in dismissal of the complaint. R.C. 2152.021(F)(5).

Therefore, in this regard, the statute evokes parallels to both a stay and a motion to



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dismiss, which generally do not constitute provisional remedies. See Dafoe, 108 Ohio

St.3d 472, 2006-Ohio-1503, 844 N.E.2d 825, at ¶ 28 (distinguishing a preliminary

injunction from a stay where “a stay ceases activity on a case, a preliminary

injunction proceeding is parallel, expedited, and separate from the main action.”);

State v. Tate, 179 Ohio App.3d 71, 2008-Ohio-5686, 900 N.E.2d 1018, ¶ 21-22 (7th

Dist.) (noting that motion to dismiss “does not aid or accompany the criminal action

* * * it is a claim for relief that seeks to terminate the action” when the basis for the

dismissal is not automatic). For these reasons, we disagree with B.D.’s contentions

that R.C. 2152.021(F) constitutes a provisional remedy.         Ultimately, it is not a

“separate procedure[] tied to a main action” or a “definable offshoot[]” thereof. See

Dafoe at ¶ 26. We therefore conclude that no final order exists pursuant to R.C.

2505.02(B)(4).

       {¶17} In light of the foregoing, we find that the juvenile court’s denial of

B.D.’s motion to divert pursuant to R.C. 2152.021’s safe harbor provision fails to

satisfy the requisites of a final appealable order. We therefore lack jurisdiction and

accordingly dismiss the appeal.

                                                                     Appeal dismissed.


MYERS, P.J., and WINKLER, J., concur.

Please note:
       The court has recorded its own entry this date.




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