In re B.D.
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.
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
{¶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
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.
A.
{¶5}
{¶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, the common law, or a rule of procedure entitles a person to enforce or protect.”
{¶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
{¶8} Without any extant caselaw, we find persuasive decisions involving
{¶9} With regard to the finality of an order arising under
{¶10} Just as with intervention in lieu of conviction, a survey of the language of
{¶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
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
{¶13}
{¶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 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
{¶15} Similarly, we disagree with B.D.‘s classification of the proceedings as analogous to a preliminary injunction. As the analysis above confirms,
{¶16} Moreover, under
{¶17} In light of the foregoing, we find that the juvenile court‘s denial of B.D.‘s motion to divert pursuant to
Appeal dismissed.
MYERS, P.J., and WINKLER, J., concur.
Please note: The court has recorded its own entry this date.