[Cite as In re J.W.,

.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF LORAIN )

IN RE: J. W. C.A. No. 10CA009939

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS JUVENILE DIVISION COUNTY OF LORAIN, OHIO CASE No. 09 JD 28295

DECISION AND JOURNAL ENTRY

Dated: August 1, 2011

DICKINSON, Judge.

INTRODUCTION

{¶1} Fourteen-year-old J.W. allegedly made nine-year-old T.W. touch his penis and

put it in his mouth and, also, allegedly, touched T.W.’s penis. Following a hearing before a

magistrate, the juvenile court adjudicated J.W. a delinquent child for committing rape and gross

sexual imposition. J.W. has appealed, assigning as error that the juvenile court incorrectly

refused to let him examine T.W.’s mental health records, that his adjudication is against the

manifest weight of the evidence, and that the court failed to properly review the magistrate’s

decision. We affirm because J.W. did not have the right to participate in the magistrate’s in

camera review of T.W.’s mental health records, his adjudication is not against the manifest

weight of the evidence, and the juvenile court correctly reviewed the magistrate’s findings of fact

and conclusions of law. 2

FACTS

{¶2} T.W. is the youngest of three brothers. All three live with their mother, but go to

their grandparents’ house after school. J.W. lives down the street from the grandparents’ house

and often played with the boys. Although J.W. is closer in age to T.W.’s brothers, he most often

played with T.W. Two of their favorite activities were to play video games in J.W.’s bedroom

and bounce on a trampoline in the grandparents’ backyard.

{¶3} According to T.W., one day in the spring of 2008, he had just beaten J.W. at a

video game when J.W. began talking to him in a strange voice. J.W. told him to put his hand

down the front of J.W.’s pants and touch J.W.’s penis. T.W. complied. J.W. then put his hand

down T.W.’s pants and touched him. Next, J.W. pulled his pants down and told T.W. to put his

penis in his mouth. T.W. did so for about a minute, and then suggested that the two of them go

jump on the trampoline. While on the trampoline, J.W. unzipped his pants and told T.W. to

touch his penis again. T.W. complied, but he stopped when T.W.’s grandfather called him to

come into the house for dinner.

{¶4} T.W. did not tell his mother about the incidents until almost a year later. At the

time, T.W. was in therapy for obsessive compulsive disorder. T.W.’s mother told the therapist

about the incidents, but the therapist recommended that they wait a couple months to tell the

police until T.W. was on medication for anxiety. According to the detective who investigated

T.W.’s allegations, J.W. admitted there were incidents between T.W. and him in his bedroom

and on the trampoline, but said it was T.W. who had tried to touch him. At the adjudication

hearing, J.W. also testified that it was T.W. who tried to initiate sexual contact with him, but that

he had pushed his hand away each time because it was not appropriate. 3

{¶5} A magistrate found T.W.’s testimony credible and J.W.’s testimony not credible

and recommended that J.W. be adjudicated delinquent. J.W. objected to the magistrate’s

decision, but the juvenile court overruled his objections. It found J.W. to be a delinquent child

and placed him on community control. J.W. has assigned three errors on appeal.

MENTAL HEALTH RECORDS

{¶6} J.W.’s first assignment of error is that the juvenile court violated his right to due

process when it denied his motion to review T.W.’s mental health records. Before the

adjudicatory hearing, J.W. moved for the release of T.W.’s mental health records, arguing that,

in light of T.W.’s delay in reporting J.W.’s alleged conduct to the police, the records might

contain information that would help his defense. In particular, he argued that the records might

help him challenge J.W.’s veracity and determine whether the therapist used improper or

suggestive methods while counseling T.W. The magistrate subpoenaed the records from T.W.’s

therapist and reviewed them in camera. Determining that nothing in the records would be

material to J.W.’s defense, the magistrate denied his motion.

{¶7} To determine whether the records should be released, the magistrate applied State

v. McGovern, 6th Dist. No. E-08-066,

. In McGovern, the Sixth District noted

that the United States Supreme Court has held that a defendant’s right to a fair trial “entitle[s] the

defendant to an in camera review by the trial court of . . . confidential records in order to

determine whether the records contain evidence material to the accused’s defense.”

at ¶28

(citing Pennsylvania v. Ritchie,

(1987)). Following several other districts, it

held that “[t]he proper procedure in determining the availability of confidential records is for the

trial court to conduct an in camera inspection to determine: (1) whether the records are

necessary and relevant to the pending action; (2) whether good cause has been shown by the 4

person seeking disclosure; and (3) whether their admission outweighs the confidentiality

considerations.”

{¶8} J.W. has not argued that it was incorrect for the magistrate to have relied on

McGovern, recognizing that he had himself relied on the case in his motion. He also specifically

suggested in his motion that “[t]he [c]ourt could order [T.W.’s mental health] documents be

produced [i]n [c]amera[.]” J.W.’s argument, instead, is that the magistrate should have allowed

his lawyer to participate in the in camera inspection, similar to the procedure for out-of-court

witness statements under Former Rule 16(B)(1)(g) of the Ohio Rules of Criminal Procedure.

According to J.W., unless a juvenile’s lawyer is allowed to participate in the inspection, he can

not tell the magistrate why certain documents are “necessary and relevant” or why there is “good

cause” for their disclosure. State v. McGovern, 6th Dist. No. E-08-066,

, at ¶28.

He has argued that the magistrate’s failure to allow his lawyer to participate in the review

violated his due process rights, particularly his right to counsel.

{¶9} Initially, we note that, in his motion, J.W. suggested that the magistrate could

review T.W.’s medical records in camera and did not ask to participate in the inspection. An “in

camera inspection” means “[a] trial judge’s private consideration of evidence” and does not

contemplate participation by the parties. Black’s Law Dictionary 775 (8th Ed. 2004).

Accordingly, any error by the juvenile court appears to have been invited by J.W. State ex rel.

Bitter v. Missig,

(1995) (“Under the invited-error doctrine, a party will

not be permitted to take advantage of an error which he himself invited or induced the trial court

to make.”). Nevertheless, we will address the merits of J.W.’s argument.

{¶10} In In re C.S.,

,

, the Ohio Supreme Court held

that a juvenile’s right to due process “is not a technical conception with a fixed concept unrelated 5

to time, place, and circumstances,” but “expresses the requirement of ‘fundamental fairness[.]’”

at 80 (quoting Lassiter v. Dep’t of Social Servs. of Durham County, N. C.,

(1981)). The Ohio Supreme Court noted that “[a]pplying the Due Process Clause is therefore an

uncertain enterprise which must discover what ‘fundamental fairness’ consists of in a particular

situation by first considering any relevant precedents and then by assessing the several interests

that are at stake.”

(quoting Lassiter,

). “A court’s task is to ascertain what

process is due in a given case . . . while being true to the core concept of due process in a

juvenile case—to ensure orderliness and fairness.” Id. at ¶81.

{¶11} In Pennsylvania v. Ritchie,

(1987), the State’s protective service

agency investigated allegations that Mr. Ritchie had committed various sexual offenses against

his minor daughter. Mr. Ritchie subpoenaed the agency’s investigation records, but the agency

refused to produce them, arguing they were confidential. The trial court refused to order the

agency to produce the records, but the Pennsylvania Supreme Court reversed, holding that the

denial violated Mr. Ritchie’s right to confrontation and compulsory process. The United States

Supreme Court granted certiorari.

{¶12} A majority of the justices were unable to agree on whether the agency’s failure to

disclose the records implicated Mr. Ritchie’s right to confrontation. A majority did agree,

however, that the decision affected his right to compulsory process. Noting that it had

traditionally analyzed a defendant’s right to compulsory process under the Due Process Clause

and that its precedent on the fundamental fairness of trials provided a clear framework for

review, it adopted a due process analysis for purposes of the case. Pennsylvania v. Ritchie,

(1987). 6

{¶13} The Supreme Court noted that the government has an obligation to turn over

materials that are favorable to a defendant and material to guilt or punishment. Pennsylvania v.

Ritchie,

(1987). But it also acknowledged the State’s interest in the

confidentially of its investigative records. While the Supreme Court agreed that the State had a

strong interest in protecting the sensitive information contained in the records, it noted that the

State’s confidentially law contained exceptions, leading it to conclude that the Pennsylvania

legislature had “contemplated some use of [the agency’s] records in judicial proceedings.”

. It did not, however, require the agency to give Mr. Ritchie unsupervised access to files

because that “could have a seriously adverse effect on Pennsylvania’s efforts to uncover and treat

abuse.”

. Weighing Mr. Ritchie’s right to due process against the State’s confidentiality

interests, it concluded that Mr. Ritchie’s “interest . . . in ensuring a fair trial can be protected

fully by requiring that the [agency] files be submitted only to the trial court for in camera

review.”

“Although this rule denies [Mr.] Ritchie the benefits of an ‘advocate’s eye,’ we

note that the trial court’s discretion is not unbounded. If a defendant is aware of specific

information contained in the file . . . , he is free to request it directly from the court, and argue in

favor of its materiality.”

{¶14} This case involves an accused’s right to due process, similar to Ritchie. Unlike

that case, it involves mental health records of a licensed therapist instead of investigative records

of a child protective services agency. There is little substantive difference, however, because

T.W.’s mental health records are confidential under state law, just like the records at issue in

Ritchie. See R.C. 2317.02(B)(1) & (G)(1); R.C. 4732.19. The purpose of Ohio’s confidentiality

laws is to encourage mental and physical health by allowing patients to speak candidly with their

health care providers without fear that the matters will later become public. See Ward v. Summa 7

Health Sys.,

,

. As in Ritchie, the confidentiality of

the documents is subject to certain statutory exceptions. Accordingly, we are faced with

circumstances very similar to Ritchie.

{¶15} The United States Supreme Court determined that the way to balance a

defendant’s right to due process with the State’s interest in confidentiality is to allow the trial

court to review the records in camera to determine whether they contain any favorable, material

evidence. Pennsylvania v. Ritchie,

(1987). The Supreme Court specifically

rejected the notion that the defendant could participate in the review.

Mr. Ritchie has not

persuaded us that his right to the disclosure of T.W.’s mental health records is stronger than was

Mr. Ritchie’s right to protective service agency records or that the State of Ohio’s interest in

patient confidentiality is any less important than Pennsylvania’s interest in investigating child

abuse. He has also failed to convince us that an in camera review of T.W.’s mental health

records fails to protect his rights. We note that he has not cited any precedent in which a court

has allowed a defendant to participate in an in camera review, outside of the context of Rule 16

of the Ohio Rules of Criminal Procedure, under which it is expressly allowed. Crim. R. 16(F).

{¶16} The magistrate and juvenile court reviewed T.W.’s records and determined that

they did not contain anything that was material and favorable to J.W.’s defense. We also have

reviewed the records and conclude that their decision was correct. J.W.’s first assignment of

error is overruled.

MANIFEST WEIGHT

{¶17} J.W.’s second assignment of error is that the juvenile court’s delinquency

adjudication is against the manifest weight of the evidence. Because juvenile adjudications are

characterized as civil in nature, the Ohio Supreme Court has applied the civil manifest weight of 8

the evidence standard. In re Sekulich,

(1981) (“Judgments supported by

some competent, credible evidence going to all the essential elements of the case will not be

reversed by a reviewing court as being against the manifest weight of the evidence.”).

Recognizing the similarities between a delinquency adjudication and a criminal conviction,

however, this Court has applied the criminal manifest weight of the evidence standard. In re

M.H., 9th Dist. No. 09CA0028,

, at ¶11-12; In re R.D.U., 9th Dist. No. 24225,

. Under that standard, we “must review the entire record, weigh the

evidence and all reasonable inferences, consider the credibility of witnesses and determine

whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created

such a manifest miscarriage of justice that the conviction must be reversed and a new trial

ordered.” State v. Otten,

(1986).

{¶18} J.W. has argued that T.W.’s testimony was unbelievable for several reasons. He

has noted that other children testified that T.W. had lied to them about having had sex with one

of his teachers. T.W. also incorrectly interpreted an innocent act by a child with whom he was

wrestling as “dry hump[ing].” And T.W. made up a story about having to jump out a window at

a friend’s house to escape from J.W. and a couple of Rottweilers. J.W. has also argued that

T.W.’s grandfather, who testified that J.W. appeared to zip up his pants after the incident on the

trampoline, always disliked him. He has further argued that T.W.’s mother repeatedly told T.W.

that, if he ever said that someone had improperly touched him, she would believe him

completely.

{¶19} Regarding the wrestling incident, the only testimony about it was by T.W.’s

mother, who said that it allegedly happened while the children were playing in the dark and that

she doubted that the other child, who was not J.W., had any type of sexual intent. Regarding 9

T.W.’s story about his teacher, even if he told such a story to other children, it was reasonable for

the magistrate and juvenile court to determine that it had no affect on his credibility regarding

what J.W. allegedly did to him. T.W. did not discuss his sexual conduct with J.W. with other

children, and J.W. admitted that there was an incident involving an attempt at sexual touching

between the two of them.

{¶20} Regarding T.W.’s escape story, T.W. testified that several months after the

incidents in J.W.’s bedroom and on the trampoline, he was at his grandparent’s house again

when he decided to visit his friend J.E., whose family was moving that day. He said that, when

he got to J.E.’s house, J.W. was there. J.W. gave him a kiss, then picked him up and carried him

into the house. T.W. did not want to be around J.W. so he tried to leave the house, but J.W. was

near the front door and there were a couple of Rottweilers outside the back door and they scared

him. He testified that he explained the situation to J.E., who told him that he could leave through

one of the windows. J.E. testified that, although she saw T.W. outside on the day her family

moved, he did not enter her house or leave it through a window. She also testified that it would

have been impossible for him to have seen any dogs at her house that day because her father had

already taken them so that they would not be in the way while her family packed. She further

testified that there were childproof locks on the windows of the house.

{¶21} J.E. testified that she had dated J.W., so the magistrate could have considered

her biased. We have reviewed the record and conclude that the magistrate did not lose her way

when she determined that T.W. was credible and that J.W. was not. J.W.’s second assignment of

error is overruled. 10

JUVENILE RULE 40(D)

{¶22} J.W.’s third assignment of error is that the juvenile court incorrectly failed to

undertake an independent review of the matters he objected to before determining whether the

magistrate had properly determined the facts and appropriately applied the law. Under Rule

40(D)(4)(d) of the Ohio Rule of Juvenile Procedure, “[i]f one or more objections to a

magistrate’s decision are timely filed, the court shall rule on those objections. In ruling on

objections, the court shall undertake an independent review as to the objected matters to

ascertain that the magistrate has properly determined the factual issues and appropriately applied

the law.”

{¶23} Under Juvenile Rule 40(D)(4)(d), “[i]t is the primary duty of the court, and not the

referee, to act as a judicial officer.” Normandy Place Assocs. v. Beyer,

(1982) (referring to identical requirement under Rule 53(D)(4)(d) of the Ohio Rules of Civil

Procedure). “In order for the trial court to maintain its independence, it is of utmost importance

that it carefully examine any report before it for errors. Accordingly, we reject any concept

which would suggest that a trial court may in any way abdicate its function as judge over its own

acts. . . . [T]he trial court has the responsibility to critically review and verify to its own

satisfaction the correctness of such a report.”

The Supreme Court has cautioned trial courts

“against the practice of adopting referee’s reports as a matter of course, especially where a

referee has presided over an entire trial.” Hartt v. Munobe,

(1993).

{¶24} Although a juvenile court has a duty to independently review the evidence, it may

give deference to the magistrate’s credibility findings. “[If] a magistrate comments on credibility

and the trial court does not take additional evidence . . . ‘the judgment of the magistrate on issues

of credibility is, absent other evidence, the last word on the issue for all practical purposes.’” 11

Mandelbaum v. Mandelbaum, 2d Dist. No. 21817,

(quoting Quick v.

Kwiatkowski, 2d Dist. No. 18620,

at *4 (Aug. 3, 2001); see also MacConnell v.

Nellis, 2d Dist. No. 19924,

, at ¶16 n.1 (indicating that a trial court does not

improperly defer to the magistrate where it gives “some deference to the magistrate’s credibility

determinations,” but also independently considers the evidence before it). As explained in

Desantis v. Soller,

(1990), “[t]he trial court, when considering a

referee’s report, may have little, if any, greater advantage in determining the credibility of the

witnesses than this court would upon review of the trial court’s decision. The trial court, like a

reviewing court, is limited to reviewing witnesses’ testimony in the form of a written transcript,

and lacks the advantage of physically viewing the witnesses in order to aid in determining

truthfulness.”

{¶25} J.W. has argued that the juvenile court did not comply with Juvenile Rule 40(D)

because it cited Seasons Coal Co. Inc. v. City of Cleveland,

(1984), for the

idea that “[d]eference should be given to the trier of fact in the determination of the weight and

importance of the evidence.” According to J.W., the court gave the magistrate’s decision more

deference than allowed under Juvenile Rule 40(D).

{¶26} On its face, the sentence citing Seasons Coal appears to give the magistrate too

much deference. A trial court is not allowed to defer to the magistrate in determining the weight

and importance of evidence. See Juv. R. 40(D)(4)(d) (providing that the court must “undertake

an independent review . . . to ascertain that the magistrate has properly determined the factual

issues”). We must consider the sentence, however, in the context of the entire paragraph in

which it appears. The juvenile court wrote: “‘The demeanor of the witnesses, the timing of the

responses and facial expressions are matters bearing on credibility and observable by the trier of 12

fact but not a reviewing court.’ State v. Ely (1978),

. ‘Deference should be

given to the trier of fact in the determination of the weight and importance of the evidence.’

Seasons Coal Co., Inc. v. City of Cleveland. Thus, the court will not disturb the Magistrate’s

findings as to the witnesses’ credibility or lack thereof.”

{¶27} Although the juvenile court’s sentence citing Seasons Coal appears to give the

magistrate’s decision too much deference regarding the weight of the evidence, the rest of the

paragraph shows that the only deference the court actually gave the magistrate was in his

determination of the witnesses’ credibility, which was proper. Quick v. Kwiatkowski, 2d Dist.

No. 18620,

at *4 (Aug. 3, 2001). Because the outcome of this case depended

on whether T.W. was credible, the juvenile court’s adoption of the magistrate’s credibility

finding led, necessarily, to its determination that J.W. was a delinquent child. We conclude that

J.W. has failed to show that the court gave improper deference to the magistrate’s findings of

fact and conclusions of law. J.W.’s third assignment of error is overruled.

CONCLUSION

{¶28} J.W. did not have a due process right to have his lawyer participate in the in

camera review of T.W.’s mental health records. The juvenile court properly reviewed the

magistrate’s decisions and its delinquency adjudication is not against the manifest weight of the

evidence. The judgment of the Lorain County Common Pleas Court, Juvenile Division, is

affirmed.

Judgment affirmed.

There were reasonable grounds for this appeal. 13

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellant.

CLAIR E. DICKINSON FOR THE COURT

WHITMORE, J. CONCURS

BELFANCE, P.J. CONCURS IN JUDGMENT ONLY, SAYING:

{¶29} With respect to the majority’s resolution of the first assignment of error, I

concur in its judgment. J.W. requested an in camera inspection of the records without

requesting that his counsel be involved in that inspection. Thus, I agree that any error by

the court in failing to involve J.W.’s counsel was invited by J.W., and therefore, J.W.’s

argument is properly overruled. Accordingly, I find the remainder of the analysis

involving the first assignment of error to be unnecessary. 14

APPEARANCES:

HOLLACE B. WEIZEL, Attorney at Law, for Appellant.

DENNIS P. WILL, Prosecuting Attorney, and ERIN K. MEYER, Assistant Prosecuting Attorney, for Appellee.