author: SCHAFER, Presiding Judge.

text:
    STATE of Ohio, Appellee v. Matthew MCCULLOUGH, Appellant
    No. 28917
    Court of Appeals of Ohio, Ninth District, Summit County.
    Dated: November 7, 2018
    J. REID YODER, Attorney at Law, for Appellant.
    SHERRI BEVAN WALSH, Prosecuting Attorney, and JACQUENETTE S. CORGAN, Assistant Prosecuting Attorney, for Appellee.
    DECISION AND JOURNAL ENTRY
   SCHAFER, Presiding Judge.

{¶ 1} Appellant, Matthew McCullough, appeals the judgment entry of the Summit County Court of Common Pleas denying his motion to dismiss the indictment. This Court affirms.

I.

{¶ 2} On March 27, 2017, McCullough was indicted for causing serious harm to a companion animal, on or about February 14, 2017, in violation of R.C. 959.131(C). McCullough entered an initial plea of not guilty to the charge. As the case proceeded, McCullough filed a motion to dismiss the indictment pursuant to Crim.R. 12(C), contending that he was improperly charged with a felony of the fifth degree while, pursuant to R.C. 959.99, the penalty for a first time violation of R.C. 959.131(C) was a misdemeanor of the second degree. McCullough argued that an act recently passed by the Ohio Senate repealed R.C. 959.99 in its entirety and replaced it with a new version effective March 21, 2017. He argued that the "new version" of R.C. 959.99 reduced the penalty for violating R.C. 959.131(C) from a felony of the fifth degree to a misdemeanor of the second degree on a first offense and a misdemeanor of the first degree on each subsequent offense. Further, because this alleged change took effect six days prior to his indictment, McCullough argued that he should have been charged with a misdemeanor of the second degree, not a felony of the fifth degree. Based on his conclusion that the indictment improperly charged a felony, McCullough reasoned that the indictment was facially invalid and should be dismissed.

{¶ 3} On October 24, 2017, the trial court accepted McCullough's plea of no contest and found him guilty on the sole count of the indictment for prohibitions concerning companion animals in violation of R.C. 959.131(C), as a felony of the fifth degree. In the journal entry dated October 30, 2017, the trial court denied McCullough's motion to dismiss. The court then sentenced McCullough on December 5, 2017, to nine months of incarceration, which it suspended upon the condition that McCullough complete two years of community control with certain conditions imposed.

{¶ 4} McCullough filed this timely appeal and presents one assignment of error of our review.

II.

Assignment of Error

The trial court erred by denying [McCullough]'s motion to dismiss the indictment.

{¶ 5} On appeal, McCullough reiterates the argument presented to the trial court in support of his motion to dismiss the indictment, contending the trial court erred in denying the motion because the indictment was invalid on its face. A pretrial motion to dismiss tests the sufficiency of the indictment. State v. Johnson , 9th Dist. Summit No. 27558, 2015-Ohio-3449, 2015 WL 5042633, ¶ 13. This Court reviews a trial court's denial of a motion to dismiss an indictment de novo. State v. Vanderpoll , 9th Dist. Summit No. 22803, 2006-Ohio-526, 2006 WL 288117, ¶ 7.

{¶ 6} The current version of R.C. 959.131(C) states that "[n]o person shall knowingly cause serious physical harm to a companion animal." R.C. 959.99(E)(2) currently provides that "[w]hoever violates [ R.C. 959.131(C) ] is guilty of a felony of the fifth degree."

{¶ 7} McCullough asserts that 2015 S.B. No. 331 ("S.B. 331"), which became effective March 21, 2017, contained language modifying the penalty for a violation of R.C. 959.131(C) to a misdemeanor of the second degree on the first offense. McCullough contends that this most recent version of the statute is irreconcilable with the previous version of the statute enacted by 2015 H.B. 60 ("H.B. 60") because it provides for a different penalty. It is McCullough's position that H.B. 60 either repeals or amends R.C. 959.99, and that the reduced penalty must be imposed according to the statute as amended, pursuant to R.C. 1.58(B). Based upon his contention that H.B. 60 and S.B. 331 present irreconcilable versions of the statutes, McCullough argues that S.B. 331 must prevail, pursuant to R.C. 1.52(A), as the statute enacted latest in date.

{¶ 8} McCullough's argument focuses only on R.C. 1.52(A), which states that "[i]f statutes enacted at the same or different sessions of the legislature are irreconcilable, the statute latest in date of enactment prevails." However, the issue before us is not the enactment of competing or irreconcilable statutes, but rather amendments to the same statute, R.C. 959.99, by two separate legislative acts. R.C. 1.52(B) states:

If amendments to the same statute are enacted at the same or different sessions of the legislature, one amendment without reference to another, the amendments are to be harmonized, if possible, so that effect may be given to each. If the amendments are substantively irreconcilable, the latest in date of enactment prevails. The fact that a later amendment restates language deleted by an earlier amendment, or fails to include language inserted by an earlier amendment, does not of itself make the amendments irreconcilable . Amendments are irreconcilable only when changes made by each cannot reasonably be put into simultaneous operation. (Emphasis added.)

Thus, R.C. 1.52(B) applies in this instance and requires review of the legislation to determine whether amendments to R.C. 959.99 by H.B. 60 and S.B. 331 are irreconcilable, or if they may be harmonized and put into simultaneous operation.

{¶ 9} This Court's review of the relevant legislative history is as follows. H.B. 60, enacted June 13, 2016 and effective September 13, 2016, replaced the prior versions of R.C. 959.131 and R.C. 959.99. H.B. 60 amended R.C. 959.131 in several respects, which included bringing R.C. 959.131(C) to the current version, prohibiting a person from knowingly causing serious physical harm to a companion animal. H.B. 60 also amended R.C. 959.99, including amending R.C. 959.99(E)(2) to state that the penalty for violating R.C. 959.131(C) is a felony of the fifth degree.

{¶ 10} Subsequently, S.B. 331 was enacted December 19, 2016, and became effective March 21, 2017. The text of R.C. 959.99(A) - (H) appearing in S.B. 331 was based on the prior version of R.C. 959.99, and it did not reflect the recent changes to R.C. 959.99 as amended by H.B. 60. S.B. 331 made only one change to R.C. 959.99 : the addition of a subsection (I) providing that "[w]hoever violates division (B) or (C) of section 959.15 of the Revised Code is guilty of a felony and shall be fined not more than ten thousand dollars." S.B. 331 did not add or delete any other part of R.C. 959.99.

{¶ 11} Upon the passage of a legislative act, the Ohio Legislative Service Commission ("LSC") must "direct how new matter shall be indicated and old matter omitted." R.C. 101.53. When a legislative action amends an existing statute, the new matter to be inserted is indicated by inserting, underlined, the new matter into the appropriate section, and old matter to be omitted is indicated by retaining the matter as it appears in the section but placing a strike through the language to be omitted. Ohio Adm. Code 103-5-01. Our review of the text clearly reflects that, although the base text of R.C. 959.99 used in S.B. 331 was not updated to reflect the current version of the statute after it was amended by H.B. 60, S.B. 331 did not add, delete, or purport to amend any other portion of R.C. 959.99 aside from the addition of R.C. 959.99(I).

{¶ 12} The amendment made to R.C. 959.99 by S.B. 331 does not interfere with or contradict the amendments made to that same statute by H.B. 60. It is immaterial that S.B. 331 did not reflect the amendments from H.B. 60, because "[t]he fact that a later amendment restates language deleted by an earlier amendment, or fails to include language inserted by an earlier amendment, does not of itself make the amendments irreconcilable." R.C. 1.52(B). Here, S.B. 331 left untouched the subsections of R.C. 959.99 that were amended by H.B. 60. The respective amendments by S.B. 331 and H.B. 60 are not irreconcilable, and we conclude that they can be harmonized to give effect to each amendment with simultaneous operation.

{¶ 13} Furthermore, the record reflects that the State included, as an exhibit to its response to McCullough's motion to dismiss, a memorandum from the LSC addressing this issue: the harmonization of R.C. 959.99 as amended by H.B. 60 and S.B. 331. In the memorandum the LSC explained, as discussed above, that S.B. 331 included "the text that made up the base of R.C. 959.99" as it appeared before the enactment of H.B. 60, and further explained that the changes under H.B. 60 and S.B. 331 "were reconcilable and were therefore harmonized." The Director of the LSC, as codifier of the laws of the state of Ohio, maintains the official version of R.C. 959.99. See R.C. 103.131. The official version of R.C. 959.99 harmonizes H.B. 60 and S.B. 331, and reflects the changes made by both acts, and states at R.C. 959.99(E)(2)

that the penalty for violating R.C. 959.131(C) is a felony of the fifth degree.

{¶ 14} We conclude that S.B. 331 did not repeal or amend R.C. 959.99 to lessen the degree of the offense for violating R.C. 959.131(C). Therefore, we further conclude that McCullough's argument fails because, at all times relevant to McCullough's charge and subsequent conviction for violating R.C. 959.131(C), R.C. 959.99 provided that the penalty for such violation is a felony of the fifth degree. For that reason, McCullough's indictment was not incorrect or invalid, and the trial court did not err in overruling McCullough's motion to dismiss the indictment.

{¶ 15} McCullough's sole assignment of error is overruled.

III.

{¶ 16} McCullough's assignment of error is overruled. The judgment of the Summit County Court of Common Pleas is affirmed.

Judgment affirmed.

TEODOSIO, J.

CALLAHAN, J.

CONCUR.


source: Caselaw Access Project

author: SADLER, J. 9 Connor, J., concurring in part and dissenting in part.

license: Public Domain

text:
    In the MATTER OF: L.C.C.,
    (A.N.O., Appellant).
    No. 18AP-167
    Court of Appeals of Ohio, Tenth District, Franklin County.
    Rendered on November 15, 2018
    On brief: Anzelmo Law, and James A. Anzelmo, Columbus, for appellant. Argued: James A. Anzelmo.
    On brief: DeSanto & McNicols, and Debra J. DeSanto, for appellee. Argued: Debra J. DeSanto.
    On brief: Douglas J. Althauser, for amici curiae Family and Youth Law Center at Capital University Law School and National Coalition for A Civil Right to Counsel.
    DECISION
   SADLER, J.

{¶ 1} Respondent-appellant, A.N.O., appeals from a judgment of the Franklin County Court of Common Pleas, Probate Division, granting the petition filed by petitioner-appellee, T.C., seeking the adoption of L.C.C., appellant's biological son. For the reasons that follow, we affirm.

I. FACTS AND PROCEDURAL HISTORY

{¶ 2} On December 12, 2012, appellant gave birth to L.C.C. The identity of the biological father is unknown. On January 3, 2013, Franklin County Children Services ("FCCS") was informed that appellant had tested positive for oxycodone on seven occasions during her pregnancy and twice for marijuana and that she continued to use illegal drugs while breastfeeding.

{¶ 3} On February 25, 2013, FCCS filed a neglect and dependency complaint, pursuant to R.C. 2151.03(A)(2) and 2151.04(C), in the Franklin County Juvenile Court. Due to appellant's indigence, counsel was appointed to represent appellant in the juvenile court proceedings. In April 2013, FCCS removed L.C.C. from appellant's care and placed him with appellant's mother. Three weeks later, on May 3, 2013, FCCS removed L.C.C. from appellant's mother and placed him with appellee and appellee's husband. Appellee is appellant's maternal aunt. The stated reason FCCS removed L.C.C. from appellant's mother was a "failure to thrive." (Feb. 9, 2017 Tr. at 8.)

{¶ 4} On May 9, 2013, the Franklin County Juvenile Court determined that L.C.C. was a "dependent minor pursuant to section 2151 of the Ohio Revised Code" and awarded temporary custody of L.C.C. to FCCS. (Oct. 5, 2017 Juvenile Court Decision and Entry.) L.C.C. was approximately four and one-half months old when appellee obtained custody. L.C.C. has remained in appellee's care since that time.

{¶ 5} In late 2013 or early 2014, appellant traveled to Florida to enter a drug treatment program. She returned briefly in February 2014 for a hearing in the juvenile court case. On October 7, 2014, the juvenile court issued an order, pursuant to R.C. 2151.42(B), awarding legal custody of L.C.C. to appellee and appellee's husband. Appellant did not object to the court's ruling, and she went back to Florida. Appellant has admitted that she did not complete the Florida drug treatment program and continued to use illegal drugs.

{¶ 6} In December 2015, a Franklin County Grand Jury indicted appellant for heroin possession, a felony of the third degree. On July 27, 2016, appellee filed her petition for adoption, pursuant to R.C. 3107.05, in the Franklin County Probate Court. Appellant received notice of the petition while at the Franklin County jail. On October 14, 2016, appellee filed an amended petition. Appellant filed her pro se objection to the amended petition on November 10, 2016. On receipt of appellant's objection, the probate court sent appellant a letter advising her to speak with an attorney regarding her parental rights.

{¶ 7} On February 9, 2017, a magistrate conducted a hearing, pursuant to R.C. 3107.07(A), to determine whether appellant's consent to the adoption was required. Appellant attended the hearing via telephone from the Franklin County Sheriff's Office, without the benefit of legal counsel. On February 21, 2017, the magistrate issued a decision wherein the magistrate found, by clear and convincing evidence, that appellant failed without justifiable cause to provide more than de minimis maintenance and support to L.C.C. for a period of one year immediately preceding the filing of the adoption petition. Accordingly, the magistrate recommended the court conclude that appellant's consent to the adoption was not required and proceed to a determination whether granting the adoption petition would be in the best interest of L.C.C.

Appellant did not file an objection to the magistrate's decision.

{¶ 8} On May 18, 2017, the magistrate held an evidentiary hearing to determine whether, pursuant to R.C. 3107.161, granting the adoption petition would be in the best interest of L.C.C. Appellant appeared at the hearing pro se. As a result of the hearing, the magistrate issued a decision on May 25, 2017 recommending the court deny the petition for adoption. The magistrate found appellant proved, by clear and convincing evidence, adoption by appellee was not in L.C.C.'s best interest.

{¶ 9} Appellee filed objections to the magistrate's decision accompanied by a transcript of the proceedings before the magistrate. Appellant filed a response and her own supplemental objections on August 15, 2017. On October 11, 2017, the court held a hearing on the objections. At the start of the proceeding, the trial court addressed appellant regarding her legal representation, whereon the following exchange took place:

THE COURT: And I understand that you represented yourself in the underlying hearing with the magistrate?
[APPELLANT]: Yes, sir.
THE COURT: Have you made any attempts to try and find legal counsel - (INAUDIBLE)?
[APPELLANT]: Yes.
THE COURT: This is a big - this is a big decision. It's something that's a big - I'm sure probably one of the biggest decisions, if not the most, for your situation.
[APPELLANT]: I know.
THE COURT: Have you tried to seek legal counsel?
[APPELLANT]: I have. I've been to the legal association. I've called the bar association, OSU, Capital, and tried to get a court-appointed attorney, all of which I was denied.
THE COURT: Basically because if it's not a criminal proceeding, you'd be -
[APPELLANT]: Yeah.
THE COURT: If you're indigent, you could get the services of the public defender, but since it's a civil proceeding, they - and no one at Capital Law - did you say Capital Law?
[APPELLANT]: Capital. They don't have a course right now that is working in probate so they can't do anything to help me. Same with OSU and the legal association and the bar association.

(Oct. 11, 2017 Tr. at 3-4.)

{¶ 10} As a result of the hearing, the court continued the matter for 60 days to allow appellant additional time to obtain legal counsel and to prepare. Following an unsuccessful mediation, the court held an evidentiary hearing on February 6, 2018 to determine whether adoption was in the best interest of L.C.C. At the hearing, the court heard additional testimony from the parties and from the Guardian ad Litem ("GAL"), Stacey L. Beck, who testified by way of deposition.

{¶ 11} Prior to hearing testimony, the court made the following comments regarding appellant's pro se status:

I will say one thing. It's - I hate to see a situation where we have litigants without attorneys. It complicates things a little bit. So what I'm going to do is - is I'm going to - I'm going to afford - this is a best-interest hearing, and so as long as it's relevant, I'm going to afford her a pretty wide latitude. If it's something that she's - that's permissible for her to ask, you, as a good lawyer, are probably going to object if it's not phrased the right way. The fact that she doesn't have an attorney, I'll probably afford her a pretty wide latitude in being able to ask questions. I don't think that it's going to affect our proceedings and so just to move it along.

(Feb. 6, 2018 Tr. at 13-14.)

{¶ 12} On March 6, 2018, the trial court issued a decision sustaining appellee's objections to the magistrate's decision and granting the petition for adoption. In making its findings, the trial court considered the evidence admitted at the hearing before the magistrate and the additional evidence submitted at the February 6, 2018 evidentiary hearing. In reaching its conclusions, the trial court independently analyzed the relevant factors set forth in R.C. 3107.161(B) in making the best-interest determination. The trial court concluded that appellee "has proven by clear and convincing evidence that the child's adoption to [appellee] would be in the child's best interests." (Mar. 6, 2018 Decision at 22.)

{¶ 13} Appellant timely appealed to this court from the trial court's decision.

II. ASSIGNMENTS OF ERROR

{¶ 14} Appellant assigns the following as trial court error:

[1.] [Appellant's] constitutional equal protection rights required that the trial court provide her with the assistance of counsel during the adoption proceedings in which her parental rights were terminated.
[2.] [Appellant's] constitutional due process rights required that the trial court provide her with the assistance of counsel during the adoption proceedings in which her parental rights were terminated.
[3.] The trial court committed structural error by denying [appellant] her constitutional right to counsel.
[4.] The trial court committed plain error by finding that [appellant's] consent was not required in the proceedings for L.C.C.'s adoption.
[5.] The trial court abused its discretion by concluding that it was in L.C.C.'s best interest for [appellee] to adopt him.

III. STANDARD OF REVIEW

{¶ 15} Appellate courts "generally review a trial court's adoption, denial or modification of a magistrate's decision for an abuse of discretion." Brunetto v. Curtis , 10th Dist. No. 10AP-799, 2011-Ohio-1610, 2011 WL 1225580, ¶ 10. However, where the appeal from the trial court's action on a magistrate's decision presents only a question of law, the standard of review is de novo. Id.

IV. LEGAL ANALYSIS

A. First Assignment of Error

{¶ 16} In her first assignment of error, appellant argues the trial court violated her rights to equal protection of the law guaranteed by the Fourteenth Amendment to the U.S. Constitution and Article I, Section 2 of the Ohio Constitution in failing to appoint legal counsel to represent appellant in the adoption proceedings. Appellee maintains that an indigent biological parent facing the loss of parental rights in a contested private adoption in the probate court is in the same position as an indigent biological parent facing the loss of parental rights in an abuse, neglect, and dependency case initiated by the state in juvenile court under R.C. 2151.353. Appellant argues because R.C. 2151.353(C) requires appointment of legal counsel to indigent parents "pursuant to Chapter 120. of the Revised Code" in proceedings arising out of abuse, neglect, and dependency cases initiated by the state, the Equal Protection Clause requires appointment of legal counsel, at the state's expense, to indigent parents in private adoption proceedings. Appellant claims that in cases involving the fundamental right to parent a child brought pursuant to R.C. Chapter 3107, disparate treatment of similarly situated indigent parents violates the Equal Protection Clauses of the U.S. and Ohio Constitutions.

{¶ 17} Ordinarily, this court would review a properly preserved assignment of error challenging a statutory law on equal protection grounds under the de novo standard of review. In re D.C. , 2017-Ohio-114, 75 N.E.3d 1040, ¶ 14 (10th Dist.). Before undertaking an equal protection analysis of Ohio's adoption laws in this case, however, we must examine the record to determine whether appellant preserved the constitutional claim she now raises on appeal. For the foregoing reasons, we find that appellant waived the equal protection argument she now raises in her first assignment of error by failing to raise it in the trial court.

{¶ 18} This court has repeatedly stated that " '[a] constitutional issue not raised at trial "need not be heard for the first time on appeal." ' " State v. Harris , 10th Dist. No. 15AP-683, 2016-Ohio-3424, 2016 WL 3249517, ¶ 74, quoting State v. Douglas , 10th Dist. No. 09AP-111, 2009-Ohio-6659, 2009 WL 4861413, ¶ 61, quoting State v. Awan , 22 Ohio St.3d 120, 489 N.E.2d 277 (1986), syllabus. "[T]he question of the constitutionality of a statute must generally be raised at the first opportunity and, in a criminal prosecution, this means in the trial court." Awan at 122, 489 N.E.2d 277. "Even '[c]onstitutional rights may be lost as finally as any others by a failure to assert them at the proper time.' " State v. Collins , 10th Dist. No. 17AP-703, 2018-Ohio-2606, 2018 WL 3202831, ¶ 7, quoting State v. Childs , 14 Ohio St.2d 56, 62, 236 N.E.2d 545 (1968). "The longstanding waiver rule is 'strict.' " Collins at ¶ 7, quoting State v. Long , 53 Ohio St.2d 91, 96, 372 N.E.2d 804 (1978).

{¶ 19} In the case of In re J.R.F. , 4th Dist. No. 16CA701, 2017-Ohio-8125, 2017 WL 4485865, appellant, the biological father of J.R.F, objected to a petition for adoption filed by appellee in the Vinton County Common Pleas Court, Probate Division. Appellant moved the probate court to appoint counsel to represent him at the state's expense arguing that he "need[s] an attorney to help me present defenses and to protect my Constitutional right to have an ongoing parent/child relationship with my daughter * * *." Id. at ¶ 3. The probate court denied the motion and appellant appealed.

{¶ 20} On appeal, appellant argued the Equal Protection Clauses of the Ohio and U.S. Constitutions require the appointment of legal counsel to indigent parents in private adoption proceedings. A threshold issue for the Court of Appeals was the appropriate standard of review. In concluding the plain error standard applied, a majority of the court reasoned that "because appellant did not specifically request the trial court to consider the equal-protection implications of his request for appointed counsel, we must review appellant's equal-protection argument for plain error." Id. at ¶ 15.

{¶ 21} We note that the dissenting judge in In re J.R.F. argued the plain error standard should not apply because the equal protection argument specifically raised by appellant on appeal was implicit in the generalized constitutional claim formally made by appellant in his motion for appointment of counsel. Id. at ¶ 44-45, citing In re Adoption of P.L.H. , 151 Ohio St.3d 554, 2017-Ohio-5824, 91 N.E.3d 698, ¶ 22. The dissent concluded the equal protection argument was preserved by appellant's motion. In re J.R.F. at ¶ 44-45.

{¶ 22} In our view, this record presents a more compelling case for waiver than In re J.R.F. Our review of the transcripts of all proceedings before the magistrate and the trial court convinces us that appellant waived the equal protection argument raised in her first assignment of error. Though appellant informed the trial court of her indigence and her prior unsuccessful efforts to retain legal counsel to represent her in this matter, the record does not show that appellant ever requested the trial court to appoint counsel, by motion or otherwise. Appellant never argued that appointment of counsel was required by the Equal Protection Clause of the Ohio Constitution or the U.S. Constitution. Nor did appellant ever contend that the appointment of counsel was necessary to protect her constitutional rights in general. Even under the more forgiving approach to waiver adopted by the dissent in In re J.R.F. , the record in this case clearly establishes that appellant failed to preserve her equal protection argument in the trial court and waived the argument for purposes of appeal. Nevertheless, where waiver is clear, appellate courts reserve the right to consider constitutional challenges to the application of statutes in specific cases of plain error or where the rights and interests involved may warrant it. In re M.D. , 38 Ohio St.3d 149, 527 N.E.2d 286 (1988). See also Risner v. Ohio Dept. of Natural Resources, 144 Ohio St.3d 278, 2015-Ohio-3731, 42 N.E.3d 718, ¶ 27 (a reviewing court has discretion to consider forfeited constitutional challenges). Accordingly, this court will review appellant's first assignment of error under the plain error standard.

{¶ 23} To invoke the plain error doctrine, the party claiming error must establish: (1) that an error, i.e., a deviation from a legal rule, occurred; (2) that the error was an "obvious" defect in the trial proceedings; and (3) that this obvious error affected substantial rights, i.e., the error must have affected the outcome of the trial. State v. Morgan , 153 Ohio St.3d 196, 2017-Ohio-7565, 103 N.E.3d 784, ¶ 40. In appeals of civil cases, the plain error doctrine is not favored and may be applied only in the extremely rare case involving exceptional circumstances where error seriously affects the basic fairness, integrity, or public reputation of the judicial process itself. Goldfuss v. Davidson , 79 Ohio St.3d 116, 679 N.E.2d 1099 (1997), syllabus. "An appellate court 'must proceed with the utmost caution' in applying the doctrine of plain error in a civil case." Risner at ¶ 27, quoting Goldfuss at 121, 679 N.E.2d 1099. "Plain error should be strictly limited 'to the extremely rare case involving exceptional circumstances when the error, left unobjected to at the trial court, rises to the level of challenging the legitimacy of the underlying judicial process itself.' " (Emphasis sic.) Risner at ¶ 27, quoting Goldfuss at 122, 679 N.E.2d 1099. The burden of demonstrating plain error rests with the appellant. Risner at ¶ 27. "For an error to be 'plain' or 'obvious,' the error must be 'plain under current law' 'at the time of appellate consideration.' " In re J.R.F. at ¶ 8, quoting Johnson v. United States , 520 U.S. 461, 467, 468, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) ; State v. Barnes , 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002) ; State v. G.C. , 10th Dist. No. 15AP-536, 2016-Ohio-717, 2016 WL 764409, ¶ 14. For the following reasons, we find the alleged equal protection violation in this case is neither plain nor obvious.

{¶ 24} The Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution states that no state shall "deny to any person within its jurisdiction the equal protection of the laws." The Equal Protection Clause in Article I, Section 2 of the Ohio Constitution provides "[a]ll political power is inherent in the people. Government is instituted for their equal protection and benefit." "These two equal-protection provisions are functionally equivalent and require the same analysis." State v. Aalim , 150 Ohio St.3d 489, 2017-Ohio-2956, 83 N.E.3d 883, ¶ 29, citing Eppley v. Tri-Valley Local School Dist. Bd. of Edn. , 122 Ohio St.3d 56, 2009-Ohio-1970, 908 N.E.2d 401, ¶ 11. "Simply stated, the Equal Protection Clauses require that individuals be treated in a manner similar to others in like circumstances." McCrone v. Bank One Corp. , 107 Ohio St.3d 272, 2005-Ohio-6505, 839 N.E.2d 1, ¶ 6.

{¶ 25} In considering whether statutory law violates equal protection, courts apply different levels of scrutiny to different types of classifications. State v. Thompson , 95 Ohio St.3d 264, 2002-Ohio-2124, 767 N.E.2d 251, ¶ 13. If a statutory scheme draws a class distinction that involves either a suspect class or a fundamental right, then strict scrutiny applies. Id. In this regard, the Supreme Court of Ohio has stated that "[t]he right to parent one's children is a fundamental right." In re C.F. , 113 Ohio St.3d 73, 2007-Ohio-1104, 862 N.E.2d 816, ¶ 28 ; Harrold v. Collier , 107 Ohio St.3d 44, 2005-Ohio-5334, 836 N.E.2d 1165, ¶ 39. Because R.C. 3107.15(A) provides that a final decree of adoption issued by an Ohio court has the effect of terminating all parental rights of biological parents and creating parental rights in adoptive parents, we find the statute draws a class distinction that involves a fundamental right.

{¶ 26} Inasmuch as the statutory scheme at issue in this case creates a distinction that involves a fundamental right, it will be upheld under the Equal Protection Clause if it furthers a compelling state interest and is narrowly drawn to serve only that interest. In re J.R.F. at ¶ 18, citing Thompson at ¶ 13. This standard of review places a heavy burden on the government to establish there is a compelling state interest for the statutory distinction and that the statutory scheme has been narrowly drawn to serve only that interest. In re J.R.F. at ¶ 18, quoting In re Judicial Campaign Complaint Against O'Toole , 141 Ohio St.3d 355, 2014-Ohio-4046, 24 N.E.3d 1114, ¶ 20 ; In re J.M.P. at ¶ 18, quoting In re O'Toole at ¶ 20.

{¶ 27} In both In re J.R.F and In re J.M.P. , the Fourth District Court of Appeals disposed of the equal protection argument by way of the plain error standard as follows:

[W]e are unable to conclude that the trial court plainly erred by failing to determine that denying appellant appointed counsel in this adoption proceeding deprives appellant of the equal protection of the law. While we assume, arguendo, that the strict scrutiny standard applies, we do not find it plain or obvious that denying an indigent parent appointed counsel in an adoption proceeding deprives the parent of the equal protection of the law. Appellant has not cited any decisions from this court, the Ohio Supreme Court, or the United States Supreme Court holding that the different treatment among indigent parents in private adoption proceedings and in state-initiated parental rights termination proceedings violates equal protection principles. Any error that the trial court might have made, therefore, is not a plain or obvious error under current law.

In re J.R.F. at ¶ 19 ; In re J.M.P. at ¶ 19.

{¶ 28} The status of Ohio and federal law has not changed since the Fourth District issued In re J.R.F. and In re J.M.P. Neither appellant herein, nor amici curiae, have cited any decisions from the Supreme Court of Ohio, the United States Supreme Court, the Tenth District Court of Appeals, or any other court of appeals in this state holding that Ohio's adoption laws violate equal protection because they treat similarly situated parents in private adoption proceedings differently than parents in state-initiated child custody proceedings with respect to the right to court-appointed counsel.

{¶ 29} Though appellant and amici curiae have cited several cases from other states that have held equal protection requires the appointment of counsel to indigent parents in private adoption cases, appellant acknowledges those cases are not controlling in this jurisdiction. We disagree with the assertion in the amici brief that "there is a national judicial consensus that it is a violation of equal protection," as the amici brief cites authority from only six different state courts. (Emphasis omitted.) (Amici Brief at 9.) Moreover, our review of the cited decisions reveals only two of those decisions arose under circumstances where the equal protection argument was clearly waived in the trial court. See In re Adoption of L.T.M. , 214 Ill.2d 60, 75, 291 Ill.Dec. 645, 824 N.E.2d 221 (2005) ; In the Matter of the Adoption of A.W.S. , 2014 MT 322, 377 Mont. 234, 339 P.3d 414 (2014). In each of the other cited cases, appellant specifically requested the appointment of counsel in the trial court and/or briefed and argued the equal protection argument in the trial court. See , e.g. , Adoption of Meaghan , 461 Mass. 1006, 961 N.E.2d 110 (2012) (Committee for Public Counsel Services permitted to intervene to seek ruling whether father and child were entitled to appointed counsel in cases initiated by private parties involving termination of parental rights); In re S.A.J.B. , 679 N.W.2d 645, 650-51 (Iowa 2004) (Iowa legal aid attorney entered a limited appearance on behalf of indigent mother for the purpose of arguing that equal protection and due process required the district court to appoint legal counsel for mother, at the state's expense, in a private adoption proceeding);

In re Adoption of K.A.S. , 499 N.W.2d 558 (N.D.1993) (petitioner submitted a brief opposing indigent father's request for court-appointed counsel arguing the state had a compelling interest in conserving the fiscal resources that would be expended if indigent parents are afforded court-appointed counsel in stepparent adoption proceedings); Zockert v. Fanning , 310 Ore. 514, 516, 800 P.2d 773 (1990) ("At the show cause hearing [analogous to Ohio's consent hearing] the trial court declined to honor repeated requests by father for an appointed lawyer and for a continuance to obtain counsel.").

{¶ 30} "A regularly enacted statute of Ohio is presumed to be constitutional and is therefore entitled to the benefit of every presumption in favor of its constitutionality." State ex rel. O'Brien v. Heimlich , 10th Dist. No. 08AP-521, 2009-Ohio-1550, 2009 WL 840654, ¶ 24, quoting State ex rel. Dickman v. Defenbacher , 164 Ohio St. 142, 147, 128 N.E.2d 59 (1955). Because we have found that any alleged violation of appellant's right to equal protection was not plain and obvious under the current state of Ohio or federal law, appellant cannot satisfy the plain error standard. Accordingly, we hold the trial court did not plainly err in the manner suggested by appellant's first assignment of error. Appellant's first assignment of error is overruled.

B. Second Assignment of Error

{¶ 31} In her second assignment of error, appellant argues the trial court violated her rights to procedural due process under the Ohio and U.S. Constitutions by hearing and determining the petition for adoption without appointing legal counsel to represent her. As set forth in connection with appellant's first assignment of error, appellant failed to raise the due process argument in the trial court and has waived all but plain error for purposes of appeal.

{¶ 32} The Due Process Clause contained in the Fourteenth Amendment to the U.S. Constitution states no state shall "deprive any person of life, liberty, or property, without due process of law." The Due Course of Law Clause in Article I, Section 16 of the Ohio Constitution provides "[a]ll courts shall be open, and every person, for an injury done him in his land, goods, person, or reputation, shall have remedy by due course of law, and shall have justice administered without denial or delay." "The two clauses provide equivalent due process protections." In re J.R.F. at ¶ 22 ; In re J.M.P. at ¶ 22, citing Aalim at ¶ 15 ; State v. Hand , 149 Ohio St.3d 94, 2016-Ohio-5504, 73 N.E.3d 448, ¶ 11 ; Direct Plumbing Supply Co. v. Dayton , 138 Ohio St. 540, 544-45, 38 N.E.2d 70 (1941). The United States Supreme Court has stated that courts generally recognize "an indigent's right to appointed counsel * * * only where the litigant may lose his physical liberty if he loses the litigation." Lassiter v. Dept. of Social Servs. , 452 U.S. 18, 25, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981).

{¶ 33} In Angus v. Angus , 10th Dist. No. 14AP-22, 2014-Ohio-4225, 2014 WL 4748485, this court previously considered and rejected a procedural due process argument similar to the one raised by appellant's second assignment of error. In Angus , appellant, Larry Angus, Jr., appealed from two orders of the Franklin County Court of Common Pleas, Division of Domestic Relations. The first order granted appellee's complaint seeking a divorce from appellant and the second order disestablished appellant as the father of one of appellee's children, Alexis, who was born in 2007, three years prior to the marriage. Appellant was not represented by legal counsel at any of the proceedings that resulted in the two orders.

{¶ 34} In his pro se appeal to this court, appellant, in Angus , argued that "termination of his parental rights and vesting of those rights in [the biological father] constituted a loss of his fundamental right to parentage that entitled him to heightened due process and effective representation by legal counsel throughout the course of proceedings." Id. at ¶ 16. The evidence produced at trial established that appellant, believing that he was the biological father of Alexis, filed an R.C. 3111.25 affidavit indicating he was the father. The evidence also showed that appellee, mother, had previously declared appellant as the father on the birth certificate and that "[appellant] carried the legal status of father for Alexis from her birth through the recent disestablishment of paternity." Id. at ¶ 17.

{¶ 35} On appeal, the majority decision recognized that, pursuant to R.C. 3111.25, appellant's acknowledgement of paternity had become final 60 days after it was entered into the birth registry. Id. at ¶ 17. The majority also recognized that "parents have a constitutionally protected liberty interest in the care, custody, and management of their children." Id. at ¶ 18, citing Troxel v. Granville , 530 U.S. 57, 66, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) ; Santosky v. Kramer , 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) ; In re Murray , 52 Ohio St.3d 155, 157, 556 N.E.2d 1169 (1990). Finally, the majority decision acknowledged that Ohio's statutes governing juvenile and domestic court proceedings do provide indigent parents a right to appointed counsel for proceedings that will result in a termination of parental rights but only when the state is the initiating and primary actor in a proceeding. Angus at ¶ 19. This court, nevertheless, rejected appellant's due process claim "[b]ecause the state was not the initiating party in the deprivation of parental rights, and we find no statutory or constitutional right to counsel in the proceedings as presented in this case." Id. at ¶ 21.

{¶ 36} In Angus, the majority relied on In re Adoption of M.C. , 4th Dist. No. 11CA5, 2011-Ohio-6527, 2011 WL 6372834, wherein the Fourth District Court of Appeals held the child's biological father had not shown that the Due Process Clause requires a probate court to appoint counsel to represent him in a private adoption proceeding initiated by the child's stepfather. In so holding, the Fourth District noted "[n]either the Supreme Court of Ohio nor this Court has addressed the issue of whether an indigent parent contesting an adoption petition filed by a private party has a procedural due process based right to appointed counsel." Id. at ¶ 8.

{¶ 37} Appellant relies on Lassiter , in support of her due process argument. In Lassiter , a county social services department filed a petition to terminate a mother's parental rights. Id. at 20-21, 101 S.Ct. 2153. The mother claimed she was indigent and entitled to appointed counsel under the Fourteenth Amendment Due Process Clause. Id. at 24, 101 S.Ct. 2153. The state court granted respondent department's motion to terminate petitioner mother's parental rights. The Court of Appeals of North Carolina decided that appointment of counsel for indigent parents was not constitutionally required in proceedings to terminate parental rights. On writ of certiorari, the mother appealed to the United States Supreme Court.

{¶ 38} The United States Supreme Court held that due process did not require the state to appoint counsel to represent the mother in the proceeding to terminate her parental rights. Id. at 27, 101 S.Ct. 2153. In so holding, the court instructed that trial courts must evaluate the three factors identified in Mathews v. Eldridge , 424 U.S. 319, 332, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), to determine whether appointment of counsel may be required under the facts and circumstances of a particular case. Lassiter at 27, 101 S.Ct. 2153. Those include the private interests at stake, the government's interest, and the risk that the procedures used will lead to erroneous decisions. Id. The court went on to state that once the trial court evaluates the Eldridge factors, it then must balance those factors "against the presumption that there is a right to appointed counsel only where the indigent, if he is unsuccessful, may lose his personal freedom." Lassiter at 27, 101 S.Ct. 2153.

{¶ 39} Here, appellant did not seek court-appointed counsel in the trial court and she did not raise the due process argument she now raises in her second assignment of error. Consequently, the record does not contain any argument or evidence regarding the Eldridge factors. The majority decision from this court in Angus recognized no due process right to appointed counsel in cases where parental rights are at risk in an action initiated by a private party. Other courts in Ohio that have addressed the question whether appointment of counsel to indigent parents is required in private adoption proceedings have also concluded that no such right exists. See , e.g. , In re J.R.F. at ¶ 42 ; In re J.M.P. at ¶ 42 ; In re Adoption of I.M.M. , 5th Dist. No. 16 COA 018, 2016-Ohio-5891, 2016 WL 5092511, ¶ 17 ; In re Adoption of Drake , 12th Dist. No. CA2002-08-067, 2003-Ohio-510, 2003 WL 231298. See also In re Adoption of J.L.M.-L. , 5th Dist. No. CT2016-0030, 2017-Ohio-61, 2017 WL 90636, ¶ 13, appeal not allowed , 148 Ohio St.3d 1446, 2017-Ohio-1427, 72 N.E.3d 658 ("[W]e decline to recognize on appeal an ineffective assistance claim by a biological parent opposing a private adoption petition.").

{¶ 40} The Fourth District Court of Appeals in both In re J.R.F. and In re J.M.P. concluded that applying the Eldridge factors in those cases did not obviously lead to a conclusion that due process requires appellant to have appointed counsel in this adoption proceeding. In re J.R.F. at ¶ 39 ; In re J.M.P. at ¶ 39. Here, neither appellant's merit brief nor her reply brief provide much in the way of analysis with regard to the Eldridge factors other than the assertion that appellant's private interest in retaining the parent-child relationship is paramount.

{¶ 41} Our review of the record reveals that this particular adoption case did not involve complex legal issues or significant factual disputes. The only testimony admitted was that of the parties and the GAL, who did not offer an opinion regarding the merit of the petition for adoption. No expert medical or psychiatric testimony was admitted. Thus, it is not clear that this adoption proceeding carried a high risk of error due to the fact that appellant was unrepresented. The transcript of the best-interest hearing before the magistrate reveals that appellant relied on her own testimony in support of her contention that the adoption was not currently in L.C.C.'s best interest and that she could provide L.C.C. with a safe and secure home environment at some point in the future. Appellant was able to convince the magistrate of the merits of her best-interest argument. On this record, we cannot say the Eldridge factors obviously overcome the presumption that there is a right to appointed counsel only where the indigent, if unsuccessful, may lose personal freedom. Lassiter at 27, 101 S.Ct. 2153.

{¶ 42} " '[D]ue process' has never been, and perhaps can never be, precisely defined." Id. at 24, 101 S.Ct. 2153. Instead, due process is "a flexible concept that varies depending on the importance attached to the interest at stake and the particular circumstances under which the deprivation may occur." Aalim at ¶ 22, citing Walters v. Natl. Assn. of Radiation Survivors , 473 U.S. 305, 320, 105 S.Ct. 3180, 87 L.Ed.2d 220 (1985). "The fundamental requirement[s] of due process [are notice and] the opportunity to be heard 'at a meaningful time and in a meaningful manner.' " Eldridge at 333, 96 S.Ct. 893, quoting Armstrong v. Manzo , 380 U.S. 545, 552, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965). The record in this case shows both the magistrate and the trial court gave appellant every opportunity to obtain counsel to represent her in this matter, including granting continuances. The record also shows both the magistrate and the trial court made every effort, short of providing legal advice, to afford guidance to appellant in the course of these proceedings. The Supreme Court of Ohio has previously stated that the procedures currently in place under Ohio law adequately protect a biological parent's constitutionally protected rights. In re Adoption of Zschach , 75 Ohio St.3d 648, 653, 665 N.E.2d 1070 (1996), citing R.C. 3107.06(F)(1) through (3) and 3107.07(B). In this case, we cannot say, based on the current state of Ohio and federal law, the trial court plainly and obviously deprived appellant of a constitutional due process right to appointed counsel in this private adoption proceeding. Accordingly, we overrule appellant's second assignment of error.

C. Third Assignment of Error

{¶ 43} In appellant's third assignment of error, appellant argues the trial court committed structural error by violating appellant's constitutional right to counsel. We disagree.

{¶ 44} "Structural errors" are a category of fundamental constitutional errors that "are so intrinsically harmful as to require automatic reversal * * * without regard to their effect on the outcome." Neder v. United States , 527 U.S. 1, 7, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999). A structural error is a " 'defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself,' " and thus it is "so serious as to defy harmless-error analysis." Johnson at 468, 117 S.Ct. 1544, quoting Arizona v. Fulminante , 499 U.S. 279, 310, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991). Structural errors are found "only in a very limited class of cases." Johnson at 468, 117 S.Ct. 1544. Examples of structural error include the following: biased trial judge, Tumey v. Ohio , 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927) ; racial discrimination in the selection of a grand jury, Vasquez v. Hillery , 474 U.S. 254, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986) ; the denial of self-representation at trial, McKaskle v. Wiggins , 465 U.S. 168, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984) ; the denial of a public trial, Waller v. Georgia , 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984) ; and a jury instruction that defined reasonable doubt as grave uncertainty, Sullivan v. Louisiana , 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993), citing Cage v. Louisiana , 498 U.S. 39, 40-41, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990).

{¶ 45} In State v. Payne , 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306, the Supreme Court of Ohio explained that "[a]lthough all structural errors are by nature constitutional errors, not all constitutional errors are structural." Id. at ¶ 18, citing Chapman v. California , 386 U.S. 18, 22-23, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). As set forth in our discussion of appellant's first and second assignments of error, the trial court did not plainly and obviously violate appellant's constitutional right to counsel in these proceedings. Appellant has not cited any authority holding that the alleged failure to appoint counsel to a parent in a private adoption case is within the "very limited class of cases" in which a structural error occurred. Johnson at 468, 117 S.Ct. 1544. Though the United States Supreme Court in Gideon v. Wainwright , 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), recognized that structural error occurs when an indigent defendant is completely denied legal counsel in a criminal case, no court has recognized structural error arising out of the alleged denial of counsel in a civil action. We decline to do so in this case.

{¶ 46} Appellant's third assignment of error is overruled.

D. Fourth Assignment of Error

{¶ 47} In appellant's fourth assignment of error, appellant argues that the trial court committed plain error by finding appellant's consent was not required in the proceedings for L.C.C.'s adoption. We disagree.

{¶ 48} Pursuant to R.C. 3107.06(A), a petition to adopt a minor may be granted only if written consent to the adoption has been executed by the mother of the minor unless consent is not required under R.C. 3107.07. Under R.C. 3107.07, "[c]onsent to adoption" is not required of any of the following:

(A) A parent of a minor, when it is alleged in the adoption petition and the court, after proper service of notice and hearing, finds by clear and convincing evidence that the parent has failed without justifiable cause to provide more than de minimis contact with the minor or to provide for the maintenance and support of the minor as required by law or judicial decree for a period of at least one year immediately preceding either the filing of the adoption petition or the placement of the minor in the home of the petitioner.

{¶ 49} The Supreme Court of Ohio has held, "[p]ursuant to R.C. 3107.07(A), the petitioner for adoption has the burden of proving, by clear and convincing evidence, both (1) that the natural parent has failed to support the child for the requisite one-year period, and (2) that this failure was without justifiable cause." In re Adoption of Bovett , 33 Ohio St.3d 102, 515 N.E.2d 919 (1987), paragraph one of the syllabus, following In re Adoption of Masa , 23 Ohio St.3d 163, 492 N.E.2d 140 (1986), paragraph one of the syllabus.

{¶ 50} The magistrate found appellee produced clear and convincing evidence that appellant failed without justifiable cause to provide more than de minimis maintenance and support of the minor, L.C.C., for a period of one year immediately preceding the filing of the adoption. Appellant did not file objections to the magistrate's decision regarding consent. Civ.R. 53(D)(3)(b)(iv) states "[e]xcept for a claim of plain error, a party shall not assign as error on appeal the court's adoption of any factual finding or legal conclusion * * * unless the party has objected to that finding or conclusion as required by Civ.R. 53(D)(3)(b)." Accordingly, we are limited to plain error review in this appeal. PHH Mtge. Corp. v. Santiago , 10th Dist. No. 11AP-562, 2012-Ohio-942, 2012 WL 760781, ¶ 8, citing In re G.S. , 10th Dist. No. 10AP-734, 2011-Ohio-2487, 2011 WL 2112436, ¶ 6 ; Nyamusevya v. Nkurunziza , 10th Dist. No. 11AP-137, 2011-Ohio-5287, 2011 WL 4865130, ¶ 9.

{¶ 51} We note appellant's fourth assignment of error does not challenge the magistrate's findings regarding appellant's lack of financial support. Appellant concedes she did not provide more than de minimis support and maintenance to L.C.C. in the year immediately prior to the date appellee filed her petition for adoption. Rather, appellant argues her failure to provide support was excused by her admitted and well-documented struggles with drug addiction. Under Ohio law, however, drug addiction is not considered a "justifiable cause" for a parent's failure to provide maintenance and support to a minor child. See , e.g. , In re Adoption of K.N.W. , 4th Dist. No. 15CA36, 2016-Ohio-5863, 2016 WL 4986548, ¶ 36 (father's loss of employment and continued unemployment resulted from his voluntary decision to use illegal drugs and did not provide a justifiable cause for his failure to pay maintenance and support); In re Adoption of Lassiter , 101 Ohio App.3d 367, 378, 655 N.E.2d 781 (2d Dist.1995), discretionary appeal not allowed , 73 Ohio St.3d 1410, 651 N.E.2d 1308 (1995) (drug addiction alone is not a justifiable cause for failure to provide support).

{¶ 52} Appellant relies on a recent case from the Supreme Court of Indiana to support her argument that drug addiction excuses nonsupport. In In re E.B.F. , 93 N.E.3d 759 (Ind.2018), the court held the granting of the stepmother's petition to adopt the child was improper under Ind.Code 31-19-9-1 and 31-19-9-8(a)(2)(A) because the mother's consent was necessary. Id. at 767. The court reasoned the mother's struggles with addiction, her willingness to give up custody, and her good-faith recovery efforts justified her failure to communicate with her child during that one-year period. The court noted that both the father and stepmother's unwillingness to abide by the agreed-upon modification order permitting mother parenting time frustrated the mother's limited ability to communicate.

{¶ 53} Though the facts in In re E.B.F. are superficially similar to those presented herein, the legal issue in that case was whether the evidence supported a finding that the mother had abandoned the child by failing to significantly communicate with the child, without justifiable cause, in the six months immediately preceding the filing of the petition. The Supreme Court of Indiana held that the mother's drug addiction and good-faith recovery efforts combined with the petitioner's refusal to allow court-ordered visitation excused the mother's lack of contact during the relevant time period.

{¶ 54} Here, the trial court held that appellant's consent was not required because she had failed to provide maintenance and support to L.C.C. without justifiable cause. The decision in this case was not based on appellant's lack of contact with L.C.C. Accordingly, even if we considered In re E.B.F. as persuasive authority in this jurisdiction, the case is distinguishable.

{¶ 55} Based on the foregoing, we hold the trial court committed no error in adopting the magistrate's determination regarding the necessity of appellant's consent, let alone plain error. Appellant's fourth assignment of error is overruled.

E. Fifth Assignment of Error

{¶ 56} In appellant's fifth assignment of error, appellant alleges the trial court abused its discretion by concluding it was in L.C.C.'s best interest for appellee to adopt him. We disagree.

{¶ 57} The evidence admitted at the best-interest hearing before the magistrate included the testimony of appellee and appellant. Appellant admitted that she has a drug problem and that she is addicted to heroin, but she claims that she has been sober since her incarceration, a period of 14 and one-half months. Appellant acknowledged that she agreed the grant of temporary custody of L.C.C. to appellee in May 2013 was in L.C.C.'s best interest. She also claimed she was sober at that time but that she subsequently relapsed.

{¶ 58} Appellant testified that she last saw L.C.C. in December 2015 and that she was arrested on March 29, 2016 on charges of heroin possession, a third-degree felony. Appellant pleaded guilty to the charge and received a three-year sentence. Pursuant to her plea agreement, appellant became eligible for a transfer to a community based correctional facility ("CBCF").

{¶ 59} At the time of the magistrate's hearing, appellant had been housed at a CBCF for 74 days where she received several forms of drug treatment and life counseling. Appellant testified that a CBCF typically lasts up to 180 days but that she could be eligible to enter the Amethyst program after completing as few as 100 days of a CBCF. Appellant stated that the Amethyst program is a two-to-five-year program where she can live independently on the Amethyst campus while receiving counseling. Appellant maintained that L.C.C. could live with her while she was in the program and that she could eventually move off campus. Appellant admitted that she will be required to serve the remaining 30 months of her prison term if she does not successfully complete the CBCF program and that she must also serve a term of community control. Appellant admitted that appellee "loves [L.C.C.] 100 percent" and that appellee "does provide a good home, a caring home." (May 18, 2017 Tr. at 28-29.)

{¶ 60} At the best-interest hearing before the magistrate, appellee testified she was 56 years old and in good health. She owns her own home in Hilliard, Ohio, and she owns a company involved with web site design and increasing the internet presence of her clients. According to appellee, following the death of her husband in 2015, she began receiving government assisted healthcare for L.C.C. Appellee testified that L.C.C. has friends at day care and in the neighborhood. She testified that L.C.C. initially referred to her as "TT," then "TT mom," and now he just calls her "mom." (May 18, 2017 Tr. at 10.)

{¶ 61} Appellee testified she has a 20-year-old daughter, K., who stays with appellant when she is home from college. L.C.C. refers to K. as his sister. Appellee's other three adult children live on their own and do not have much contact with L.C.C. Appellee stated that she maintained an open door policy with regard to appellant's visitation with L.C.C. after she received temporary custody in May 2013. According to appellee, appellant visited with L.C.C. a total of 16 times between the time appellee obtained temporary custody of L.C.C. and his first birthday. Appellee testified that the visits took place at her home and that they were short, no more than two hours. According to appellee, she made arrangements for appellant to enter the Amethyst drug treatment program in 2013 and that she changed her work schedule so she could drive appellant to her required appointments. Appellee stated that appellant failed to follow through with the program requirements. Appellee testified that appellant decided, over her objection, to seek drug treatment in Florida rather than Columbus.

{¶ 62} According to appellee, appellant returned to Columbus in February 2014 and that she visited with L.C.C. on six occasions before returning to Florida. Appellee stated that she heard nothing from appellant from July to October 2014. Though appellant was back in Columbus in 2015, appellee testified that appellant saw L.C.C. just once in April. Appellee did not hear from appellant again until December 2015. According to appellee, appellant did not see L.C.C. at all in 2016, and she estimated that appellant visited L.C.C. only 20 or 25 times in four years.

{¶ 63} At the hearing before the trial court on appellee's objections, the trial court elected to hear additional evidence from the parties. Appellee provided essentially the same testimony she had given at the prior hearing. Appellee also told the trial court the reason she filed for adoption:

Because at this point he's - this is his life. This is what he's doing. His mom was in jail. She's struggling with drug - with drug addiction. He doesn't know any of that. He has - this is his life. This is his family. This is all he knows, and there was nothing - no reason to think that it would change. We love him. He looks to us as his family. He has his friends. He has his activities. He - this is just all he knows.

(Feb. 6, 2018 Tr. at 29-30.)

{¶ 64} When asked what L.C.C. would say if he was shown a photograph of his mother, appellee responded "[h]e would ask me who it was." (Feb. 6, 2018 Tr. at 30.)

{¶ 65} In addition to her own testimony, appellee presented the deposition of the GAL, Beck, who submitted several reports in this case. Beck first became GAL for L.C.C. in 2013, in connection with the neglect and dependency proceedings initiated by FCCS. Beck, however, did not meet L.C.C. or either of the parties prior to her re-appointment in 2017 after appellee filed the petition to adopt. According to Beck, she visited appellee's home on September 14, 2017, and in her September 14, 2017 report, she recommended that appellee maintain legal custody of L.C.C. Beck stated that if the court were to order a change of custody, she recommended a gradual reunification with appellant in the presence of a third party.

{¶ 66} Following an October 17, 2017 interview with appellant, Beck recommended that legal custody remain with appellee and that appellant have no parenting time prior to the next scheduled hearing in the adoption case on December 22, 2017. According to Beck, L.C.C. was nearly five years of age, and he had no conception of who appellant was and no bond with appellant. Beck testified in her deposition that L.C.C. recognized appellee as the maternal figure in his life.

{¶ 67} According to Beck, appellant was in no position to be awarded custody of L.C.C. in October 2014, when the juvenile court awarded permanent custody to appellee, and that appellant's own choices since that time have prevented her from having contact with L.C.C. Beck acknowledged on cross-examination that she did not investigate appellant's drug rehabilitation efforts, but she stated that appellant could have provided her with that information at the interview.

{¶ 68} Appellant did not testify at the February 6, 2018 hearing but she did give a closing statement, under oath, as follows:

I've never denied having a drug problem. I have fought my demons for a long time.
I'm not trying to uproot my child from the only thing he knows. That's why, in juvenile court, I went for supervised visits because I don't want to take him from the home he knows. I want to reestablish, reconnect, and regrow with him over a period of time so that eventually I can bring him home, but that's going to be a long road and I understand that. The last thing I want to do is anything to hurt him. That's why he was placed with her to begin with because I couldn't.
Everything is based upon the assumption if I fail. I'm doing everything I can to continue and ensure - to ensure that I don't fail, that I don't fall. I'm still in aftercare. I could have been discharged. I asked not to be because I don't think that's a good idea, especially with everything going on with the courts.

(Feb. 6, 2018 Tr. at 47-48.)

{¶ 69} When a court makes a determination in a contested adoption concerning the best interest of a child, R.C. 3107.161(B) dictates that the court shall consider all relevant factors including, but not limited to, the following:

(1) The least detrimental available alternative for safeguarding the child's growth and development;
(2) The age and health of the child at the time the best interest determination is made and, if applicable, at the time the child was removed from the home;
(3) The wishes of the child in any case in which the child's age and maturity makes this feasible;
(4) The duration of the separation of the child from a parent;
(5) Whether the child will be able to enter into a more stable and permanent family relationship, taking into account the conditions of the child's current placement, the likelihood of future placements, and the results of prior placements;
(6) The likelihood of safe reunification with a parent within a reasonable period of time;
(7) The importance of providing permanency, stability, and continuity of relationships for the child;
(8) The child's interaction and interrelationship with the child's parents, siblings, and any other person who may significantly affect the child's best interest;
(9) The child's adjustment to the child's current home, school, and community;
(10) The mental and physical health of all persons involved in the situation.

{¶ 70} Under R.C. 3107.161(C), "[a] person who contests an adoption has the burden of providing the court material evidence needed to determine what is in the best interest of the child and must establish that the child's current placement is not the least detrimental available alternative." The trial court analyzed the evidence presented both at the hearing before the magistrate and the additional evidence presented to the trial court on February 6, 2018, in light of the factors set forth in R.C. 3107.161(B). The trial court found that "[e]very factor for consideration contained in R.C. 3107.161(B) weighs in favor of the adoption being in the child's best interests." (Mar. 6, 2018 Decision at 22.) Our evaluation of the statutory factors in light of the evidence before the trial court convinces us that the trial court did not abuse its discretion when it refused to adopt the magistrate's conclusions of law and instead concluded that the adoption by appellee was in L.C.C.'s best interest.

{¶ 71} Appellant acknowledged that appellee has provided L.C.C. with a "very nurturing, caring home" and that she is not currently in a position to do so. (May 18, 2017 Tr. at 24.) Though appellant testified in detail about her current rehabilitation efforts while serving time in the CBCF and possible scenarios where she could resume care of L.C.C. at some future date and time, the evidence shows that L.C.C. has been in the custody and care of appellee virtually his entire life. The evidence establishes that appellee is the sole maternal figure in his life and that L.C.C. has no bond with appellant. We agree with the trial court that due to the time that has elapsed since L.C.C.'s initial placement with appellee and appellant's ongoing issues with drug addiction and incarceration, there is no longer a likelihood of successful reunification with appellant within a reasonable period of time. The evidence in the record leaves little doubt that adoption by appellee is the least detrimental available alternative for safeguarding L.C.C.'s growth and development.

{¶ 72} Moreover, our review of the magistrate's decision reveals that the magistrate placed a great deal of emphasis on appellee's progress with her court-ordered counseling and treatment programs and endeavored to reach an outcome that would maintain the status quo and permit appellant to retain her parental rights. The trial court, however, placed the emphasis on the best interest of L.C.C., as is required by statutory law.

{¶ 73} This court will reverse a probate court's best-interest determination only if we find an abuse of discretion, which means that the court's decision is unreasonable, arbitrary, or unconscionable. In re B.M.S. , 192 Ohio App.3d 394, 2011-Ohio-714, 949 N.E.2d 111, ¶ 14 (10th Dist.), citing In re Adoption of Ridenour , 61 Ohio St.3d 319, 320, 574 N.E.2d 1055 (1991). Based on our review of the evidence in the record, we find the trial court did not abuse its discretion when it independently reviewed the evidence presented to the magistrate and the evidence produced at the February 6, 2018 hearing and reached the conclusion that adoption was in L.C.C.'s best interest.

{¶ 74} For the foregoing reasons, appellant's fifth assignment of error is overruled.

V. CONCLUSION

{¶ 75} Having overruled appellant's five assignments of error, we affirm the judgment of the Franklin County Court of Common Pleas, Probate Division.

Judgment affirmed.

TYACK and KLATT, JJ., concur.

9 Connor, J., concurring in part and dissenting in part.

10 Appellee's husband died on April 12, 2015.

11 Citing L.C.C.'s age at the time of the hearing, neither the magistrate nor the trial court elected to take evidence regarding L.C.C.'s wishes, as set forth in R.C. 3107.161(B)(3).

--------

      R.C. 120.01 provides in relevant part: "There is hereby created the Ohio public defender commission to provide, supervise, and coordinate legal representation at state expense for indigent and other persons."

      In re J.M.P. , 4th Dist. No. 16CA702, 2017-Ohio-8126, 2017 WL 4508502, discretionary appeal not allowed , 151 Ohio St.3d 1515, 2018-Ohio-365, is the companion case arising under the same facts but involving the child's stepfather.

      Though appellant stated at the October 11, 2017 hearing that she "tried to get a court-appointed attorney," the record does not show that appellant put any such request directly to the trial court, either orally or in writing. (Oct. 11, 2017 Tr. at 4.)

      Conversely, the October 7, 2014 juvenile court judgment granting permanent custody of L.C.C. to appellant, pursuant to R.C. 2151.42(A), did not have the effect of terminating all appellant's residual parental rights, privileges, and responsibilities. In re J.R.P. , 2018-Ohio-3938, --- N.E.3d ----, ¶ 58 (7th Dist.) ; In re Sean T. , 164 Ohio App.3d 218, 2005-Ohio-5739, 841 N.E.2d 838, ¶ 23-24 (6th Dist.).

      R.C. 2721.12 provides for notice to the Ohio Attorney General of proceedings involving constitutional challenges to state laws but only when the action originates as a declaratory judgment action. In re J.R.F. at fn. 4 ; In re J.M.P. at fn. 4.

      The Family and Youth Law Center at Capital University Law School and the National Coalition for A Civil Right to Counsel filed an amici brief in this case.

      For purposes of this appeal only, we assume, without deciding, that a private adoption proceeding in probate court constitutes state action.

      Appellant cites this court's per curiam decision in In re W.W.E. , 2016-Ohio-4552, 67 N.E.3d 159 (10th Dist.), for the proposition that the Ohio Constitution provides a broader due process right to court-appointed counsel than does federal law. However, because In re W.W.E. involved the waiver of a parent's right to counsel in a state-initiated child custody proceeding, the case does not support appellant's argument in this case.


text:
    The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Dontriel BARNES, Defendant-Appellant.
    NO. 5-14-0378
    Appellate Court of Illinois, Fifth District.
    Opinion Filed: November 19, 2018
    James E. Chadd, State Appellate Defender, Patricia Mysza, Deputy Defender, Alexander G. Muntges, Assistant Appellate Defender, Office of the State Appellate Defender, First Judicial District, 203 N. La Salle Street, 24th Floor, Chicago, IL 60601, Attorneys for Appellant
    Hon. Michael Carr, State's Attorney, Jackson County Courthouse, 1001 Walnut Street, Murphysboro, IL 62966; Patrick Delfino, Director, Patrick D. Daly, Deputy Director, Kelly M. Stacey, Staff Attorney, Office of the State's Attorneys Appellate Prosecutor, 730 East Illinois Highway 15, Suite 2, P.O. Box 2249, Mt. Vernon, IL 62864, Attorneys for Appellee
   JUSTICE GOLDENHERSH delivered the judgment of the court, with opinion.

¶ 1 Following a jury trial, defendant, Dontriel Barnes, was convicted of armed robbery in the circuit court of Jackson County. 720 ILCS 5/18-2(a)(2) (West 2012). Defendant, who was 17 years old at the time of the offense, was sentenced to 22 years in the Illinois Department of Corrections, which included a mandatory 15-year enhancement for defendant's use of a firearm, to be followed by 3 years mandatory supervised release. On appeal, defendant argues that section 5-4.5-105 of the Unified Code of Corrections (Code), which took effect during the pendency of this appeal and grants the trial court discretion to not impose the firearm enhancement, applies retroactively. 730 ILCS 5/5-4.5-105 (West 2016). Defendant asks this court to vacate his 22-year sentence and remand the cause for a resentencing hearing to afford the trial court the opportunity to exercise its discretion as to whether the firearm enhancement should be imposed. Alternatively, defendant argues that if this court concludes section 5-4.5-105 is prospective only, the imposition of the mandatory 15-year firearm enhancement is unconstitutional as applied to defendant. For the following reasons, we vacate defendant's sentence and remand this cause for a resentencing hearing to afford the trial court the opportunity to exercise its discretion as to whether the firearm enhancement should be imposed.

¶ 2 BACKGROUND

¶ 3 Defendant was convicted of armed robbery on May 1, 2014, after he robbed a gas station in Murphysboro on December 9, 2013. 720 ILCS 5/18-2(a)(2) (West 2012). The evidence adduced at trial revealed that defendant wore a mask and displayed an unloaded revolver to the gas station clerk during the commission of the crime. In addition, three photographs that were taken on November 30, 2013, were recovered on defendant's cell phone, which depicted defendant wearing sunglasses and holding a revolver. Another picture on defendant's phone, which was taken 25 minutes prior to the commission of the armed robbery, displayed the silhouette of a person possibly holding a firearm.

¶ 4 At sentencing, defendant faced a prison term of 21 to 45 years. Id. § 18-2(b) (at the time of defendant's sentencing, armed robbery was a Class X felony punishable by 6 to 30 years' imprisonment with a mandatory 15-year firearm enhancement). In its discretion, the trial court imposed a 7-year sentence, which when added to the mandatory 15-year enhancement equated to a 22-year sentence. Thereafter, defendant filed a motion to reduce sentence, which the trial court denied.

¶ 5 This appeal followed.

¶ 6 ANALYSIS

¶ 7 I. Amendment to Section 5-4.5-105 of the Code

¶ 8 Defendant first argues that because section 5-4.5-105 of the Code applies retroactively, defendant's 22-year sentence, which included a mandatory 15-year firearm enhancement, must be vacated and remanded for a resentencing hearing to afford the trial court discretion as to whether the firearm enhancement should be imposed. See Pub. Acts 99-69, 99-258 (eff. Jan. 1, 2016) (adding 730 ILCS 5/5-4.5-105).

¶ 9 While this matter was pending on appeal, the juvenile sentencing provisions of the Code were amended. Effective January 1, 2016, the Illinois legislature enacted section 5-4.5-105 of the Code (730 ILCS 5/5-4.5-105 (West 2016) ), which provides a new sentencing scheme for criminal defendants under 18 years of age at the time of the commission of an offense. People v. Reyes , 2016 IL 119271, ¶ 11, 407 Ill.Dec. 452, 63 N.E.3d 884. The new statute requires the sentencing judge to consider several factors in mitigation in determining the appropriate sentence for a defendant under 18 years of age, including (1) the defendant's impetuosity, level of maturity, and ability to consider risks and consequences; (2) whether the defendant was subjected to outside pressures; (3) the defendant's home environment and any history of parental neglect, physical abuse, or other childhood trauma; (4) the defendant's potential for rehabilitation; (5) the circumstances of the offense; (6) the defendant's role in the offense; (7) whether the defendant participated in his or her defense; (8) the defendant's prior juvenile or criminal history; and (9) other relevant information. 730 ILCS 5/5-4.5-105(a)(1)-(9) (West 2016). In addition, the new statute provides that the imposition of firearm enhancements is a matter within the discretion of the trial court. Id. § 5-4.5-105(b).

¶ 10 At issue here is whether subsection (b) under section 5-4.5-105 of the Code applies retroactively to defendant's case. Effective January 1, 2016, subsection (b) provides, in relevant part:

"(b) Except as provided in subsection (c), the court may sentence the defendant to any disposition authorized for the class of the offense of which he or she was found guilty as described in Article 4.5 of this Code, and may, in its discretion, decline to impose any otherwise applicable sentencing enhancement based upon firearm possession * * *." Id.

¶ 11 Our supreme court directly addressed whether this provision applies retroactively in People v. Hunter , 2017 IL 121306, 422 Ill.Dec. 791, 104 N.E.3d 358. In Hunter , the State charged the defendant with aggravated vehicular hijacking, aggravated kidnapping, and armed robbery, all while armed with a firearm. Id. ¶ 4. Following a bench trial, the defendant was convicted on all three counts and sentenced to concurrent terms of 21 years' imprisonment, which included a 15-year enhancement for use of a firearm. Similar to the instant case, the new sentencing provisions under section 5-4.5-105 of the Code became effective during the pendency of the defendant's appeal. Id. ¶ 46. On appeal, the defendant argued his case should be remanded for a new sentencing hearing because the new sentencing provisions applied retroactively. Id. ¶ 9. The appellate court concluded that the new sentencing guidelines did not apply retroactively, and our supreme court granted the defendant's petition for leave to appeal. Id.

¶ 12 Relevant to this appeal, our supreme court noted that subsection (b) under section 5-4.5-105 of the Code was silent regarding its temporal reach. Id. ¶ 52. Therefore, the court referred to section 4 of the Statute on Statutes ( 5 ILCS 70/4 (West 2016) ) to determine whether the new sentencing guidelines applied retroactively to the defendant. Hunter , 2017 IL 121306, ¶ 52, 422 Ill.Dec. 791, 104 N.E.3d 358. The court held the new guidelines did not apply retroactively to the defendant, who was sentenced before the statute took effect. Id. In reaching this determination, our supreme court observed that "[t]he second sentence of section 4 of the Statute on Statutes expressly provides:

'If any penalty, forfeiture or punishment be mitigated by any provisions of a new law, such provision may, by the consent of the party affected, be applied to any judgment pronounced after the new law takes effect.' " Id. ¶ 53 (quoting 5 ILCS 70/4 (West 2016) ).

¶ 13 Our supreme court observed it had previously held that under section 4 a defendant is not eligible to be sentenced under a statutory amendment that became effective while his or her case is pending because he or she had already been sentenced prior to the statute's effective date. Id. ¶ 54. Our supreme court concluded that because the defendant was sentenced well before the new juvenile sentencing provisions became effective on January 1, 2016, he was not eligible to be sentenced under subsection (b). Id. ¶¶ 55 -56. However, the court noted that where a defendant's sentence is vacated on appeal and the cause is remanded for resentencing, under section 4 of the Statute on Statutes, the defendant may elect to be sentenced under the law in effect at the time of the new sentencing hearing. Id. ¶ 54.

¶ 14 Here, defendant finds himself in the same predicament as the defendant in Hunter , as the new juvenile sentencing provisions became effective during the pendency of defendant's appeal but after defendant was sentenced. Dispositive of defendant's argument is the fact that defendant was sentenced on July 2, 2014, well before the new juvenile sentencing provisions took effect on January 1, 2016. Pursuant to our supreme court's holding in Hunter , section 5-4.5-105(b) applies prospectively only. Accordingly, we reject defendant's argument.

¶ 15 II. Constitutionality of Firearm Enhancement as Applied to Defendant

¶ 16 Defendant next contends that the trial court's imposition of the 15-year firearm enhancement is unconstitutional as applied to him. Specifically, defendant argues that the enhancement violates (1) the eighth amendment of the United States Constitution ( U.S. Const., amend. VIII ) and (2) article I, section 11, of the Illinois Constitution ( Ill. Const. 1970, art. I, § 11 ), also referred to as the proportionate penalties clause. Defendant contends that because the proportionate penalties clause provides greater protection against unjust sentences than the eighth amendment, defendant will use the standards of the proportionate penalties clause for purposes of this challenge.

¶ 17 The eighth amendment of the United States Constitution prohibits cruel and unusual punishments. U.S. Const., amend. VIII. Cruel and unusual punishments include those punishments that are " 'disproportionate to the crime.' " People v. McKee , 2017 IL App (3d) 140881, ¶ 25, 414 Ill.Dec. 307, 80 N.E.3d 40 (quoting Graham v. Florida , 560 U.S. 48, 59, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010) ). The concept of proportionality is central to the eighth amendment, and that concept is viewed less through a historical prism than according to the evolving standards of decency that mark the progress of a maturing society. Miller v. Alabama , 567 U.S. 460, 469, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012).

¶ 18 Our supreme court has observed that the proportionate penalties clause of the Illinois Constitution is coextensive with the eighth amendment of the United States Constitution. People v. Patterson , 2014 IL 115102, ¶ 106, 388 Ill.Dec. 834, 25 N.E.3d 526. The proportionate penalties clause provides that "[a]ll penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship." Ill. Const. 1970, art. I, § 11. An "as applied" constitutional challenge requires the defendant to show that the statute at issue violates the Illinois Constitution as applied to him. People v. Aikens , 2016 IL App (1st) 133578, ¶ 33, 407 Ill.Dec. 299, 63 N.E.3d 223. A proportionality violation may be found where the penalty imposed for the offense is "cruel, degrading, or so wholly disproportionate to the offense as to shock the moral sense of the community." People v. Miller , 202 Ill. 2d 328, 338, 269 Ill.Dec. 503, 781 N.E.2d 300 (2002) ( Leon Miller ). A punishment that constitutes "cruel, degrading, or so wholly disproportionate to the offense as to shock the moral sense of the community" is not clearly defined because "as our society evolves, so too do our concepts of elemental decency and fairness which shape the 'moral sense' of the community." Id. at 338-39, 269 Ill.Dec. 503, 781 N.E.2d 300. To determine whether a punishment shocks the moral sense of the community, we must consider objective evidence as well as the community's changing standard of moral decency.

Aikens , 2016 IL App (1st) 133578, ¶ 33, 407 Ill.Dec. 299, 63 N.E.3d 223. Put differently, we must consider "the gravity of the defendant's offense in connection with the severity of the statutorily mandated sentence within our community's evolving standard of decency." Leon Miller , 202 Ill. 2d at 340, 269 Ill.Dec. 503, 781 N.E.2d 300.

¶ 19 Every statute carries a strong presumption of constitutionality. People v. Sharpe , 216 Ill. 2d 481, 487, 298 Ill.Dec. 169, 839 N.E.2d 492 (2005). To overcome this presumption, the challenging party must clearly establish that the statute violates the constitution. Id. The constitutionality of a statute is a matter of law subject to de novo review. Id. at 486-87, 298 Ill.Dec. 169, 839 N.E.2d 492.

¶ 20 Initially, we note that Illinois courts have repeatedly upheld the constitutionality of the mandatory firearm enhancement statute when reviewing adult defendants' sentences. Id. at 481, 519-21, 298 Ill.Dec. 169, 839 N.E.2d 492 ; People v. Harris , 2016 IL App (1st) 141744, ¶ 45, 410 Ill.Dec. 591, 70 N.E.3d 718. As our supreme court has observed:

"[I]t would not shock the conscience of the community to learn that the legislature has determined that an additional penalty ought to be imposed when murder is committed with a weapon that not only enhances the perpetrator's ability to kill the intended victim, but also increases the risk that grievous harm or death will be inflicted upon bystanders." Sharpe , 216 Ill. 2d at 525, 298 Ill.Dec. 169, 839 N.E.2d 492.

In this case, however, we are not reviewing the constitutionality of a mandatory firearm enhancement as applied to an adult. Rather, we are reviewing the constitutionality of a mandatory firearm enhancement as applied to a juvenile. We note this as a stark difference in how we undertake our analysis of defendant's argument.

¶ 21 Turning back to the merits, the United States Supreme Court has determined that the eighth amendment prohibits certain harsh sentences for juvenile offenders. In Roper v. Simmons , 543 U.S. 551, 574-75, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), the Court held that the death penalty for juvenile offenders was unconstitutional. Thereafter, in Graham , 560 U.S. at 82, 130 S.Ct. 2011, the Court held that sentencing juvenile offenders of nonhomicide offenses to life imprisonment without the possibility of parole was unconstitutional. In Miller , 567 U.S. at 489, 132 S.Ct. 2455, the Court concluded that the eighth amendment prohibits the mandatory sentencing of a juvenile to life in prison without the possibility of parole, even if the juvenile was convicted of murder.

¶ 22 In each of these cases, the Supreme Court relied at least partially on the rationale that juveniles have less moral culpability and greater rehabilitative potential than adults. In Miller , for example, the Supreme Court observed that juveniles are constitutionally different from adults for purposes of sentencing and, because juveniles have diminished culpability and greater prospects for reform, they are less deserving of the most severe punishments. Id. at 471, 132 S.Ct. 2455. The Miller Court observed three significant gaps that exist between juveniles and adults:

"First, children have a lack of maturity and an underdeveloped sense of responsibility, leading to recklessness, impulsivity, and heedless risk-taking. [Citation.] Second, children are more vulnerable ... to negative influences and outside pressures, including from their family and peers; they have limited contro[l] over their own environment and lack the ability to extricate themselves from horrific, crime-producing settings. [Citation.] And third, a child's character is not as well formed as an adult's; his traits are less fixed and his actions less likely to be evidence of irretrievabl[e] deprav[ity]." (Internal quotation marks omitted.) Id.

The Miller Court concluded that before a sentencing court may impose a life sentence on a juvenile offender, it is required to "take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison." Id. at 480, 132 S.Ct. 2455.

¶ 23 Illinois courts have also recognized that juveniles have less moral culpability and greater rehabilitative potential than adults. In Leon Miller , the 15-year old defendant was convicted under a theory of accountability of two murders after he agreed to serve as a lookout for one minute to two individuals who opened fire and killed two people. Leon Miller , 202 Ill. 2d at 330-31, 269 Ill.Dec. 503, 781 N.E.2d 300. The defendant was convicted despite the fact that he never handled the guns used in the commission of the crime and ran away when the shots were fired. Id. The defendant was sentenced to life without parole, which our supreme court found to violate the proportionate penalties clause because the sentence "grossly distort[ed] the factual realities of the case and [did] not accurately represent [the] defendant's personal culpability such that it shocks the moral sense of the community." Id. at 341, 269 Ill.Dec. 503, 781 N.E.2d 300. In reaching this conclusion, our supreme court noted that, when combined, the automatic transfer statute, the accountability statute, and the multiple-murder sentencing statute precluded the trial court from considering the actual facts of the crime, including the age of the defendant at the time of the offense and the defendant's culpability. Id. As our supreme court noted, "this case presents the least culpable offender imaginable, a 15-year-old who had 'about a minute from the time this plan began until the act was completed by other persons.' " Id. Our supreme court explained that its decision was consistent with the longstanding distinction made in the State of Illinois between adult and juvenile offenders, a distinction emphasized by the reality that our state was the first to create a court system exclusively dedicated to juveniles. Id. Our supreme court further explained that as a society, our state has recognized that young defendants have greater rehabilitative potential. Id. at 342, 269 Ill.Dec. 503, 781 N.E.2d 300.

¶ 24 More recently, our colleagues in the First District rendered a decision that is analogous to the case before us on appeal. In Aikens , 2016 IL App (1st) 133578, 407 Ill.Dec. 299, 63 N.E.3d 223, the juvenile defendant was convicted of several counts of attempted first degree murder of a peace officer, attempted first degree murder, aggravated discharge of a firearm, and aggravated unlawful use of a weapon after the defendant fired multiple shots at an unmarked police car. Id. ¶¶ 1-5. The defendant was sentenced to 20 years in prison for the attempted murder convictions, plus an additional mandatory 20-year enhancement for personally discharging a firearm, for a total of 40 years' imprisonment. Id. ¶ 1. On appeal, the defendant argued, inter alia , that the 20-year mandatory firearm enhancement violated the eighth amendment and the proportionate penalties clause. Id. ¶ 32. The First District reversed and remanded for resentencing after finding the defendant's sentence violated the proportionate penalties clause as applied to him in that it "shocks our evolving standard of moral decency." Id. ¶ 37. In reaching this decision, the court noted that the juvenile defendant was young, the defendant had no prior criminal history, and the defendant had great rehabilitative potential. In addition, the court noted that while the crime was serious, no one was injured. The court further explained:

"We believe that this decision is consistent with the evolving standards for juvenile offenders in this State as evidenced by recent changes that have been made in the way that juveniles are tried and sentenced. See Pub. Act 99-69, § 10 (eff. Jan. 1, 2016) (adding 730 ILCS 5/5-4.5-105 (West 2014) ) * * *. Now, when a person commits an offense and is under 18 years of age at the time of the offense, there are additional factors the trial court must consider in sentencing that offender, including age, impetuosity, and level of maturity, and the trial court 'may, in its discretion, decline to impose any otherwise applicable sentencing enhancement based upon firearm possession.' Pub. Act 99-69, § 10 (eff. Jan. 1, 2016) (adding 730 ILCS 5/5-4.5-105(b) (West 2014) ). * * * While these provisions do not apply retroactively, they are indicative of a changing moral compass in our society when it comes to trying and sentencing juveniles as adults. [Citation.] We therefore reverse defendant's sentence and remand for resentencing in line with the new sentencing scheme, without imposition of the mandatory enhancement. [Citation.]" Id. ¶ 38.

¶ 25 Similar to Aikens , we find that the sentencing scheme employed by the trial court, as applied to defendant, violates the proportionate penalties clause of the Illinois Constitution, as it shocks our community's evolving standard of moral decency. See People v. Hernandez , 382 Ill. App. 3d 726, 727, 321 Ill.Dec. 267, 888 N.E.2d 1200 (2008) ("To determine whether a penalty shocks the moral sense of the community, we must consider objective evidence as well as the community's changing standard of moral decency."). The record in this case shows that defendant was 17 years old when he committed the offense of armed robbery. Defendant had no prior criminal history. The parties do not dispute that defendant did not cause physical harm to anyone during the commission of the offense, or that the gun defendant displayed was unloaded. We find it important to note that in reaching our decision, we are not downplaying the seriousness of defendant's offense. We recognize the serious psychological harm that can be inflicted as a result of defendant's decision to display a gun, loaded or not. However, at sentencing, defendant expressed remorse for his actions and empathized with the gas station clerk and the trauma she experienced as a result of the incident. The court acknowledged defendant's apology and thanked defendant for taking responsibility for his actions, in particular for apologizing to the gas station clerk. The court further noted defendant's rehabilitative potential, as defendant has supportive people in his life and has attempted to better himself and help others. Defendant's rehabilitative potential is also supported by the fact that defendant requested to be placed in drug and alcohol treatment at sentencing.

¶ 26 Since the trial court in this case imposed the mandatory 15-year firearm enhancement, the law has evolved to afford the trial court discretion as to whether the enhancement should be imposed. It is clear from the string of cases cited above that the moral compass is changing with regard to juveniles in the justice system. See Leon Miller , 202 Ill. 2d at 339, 269 Ill.Dec. 503, 781 N.E.2d 300 ("[A]s our society evolves, so too do our concepts of elemental decency and fairness which shape the 'moral sense' of the community."). The trial court considered multiple factors in arriving at its sentence. Presumably, the court was aware of defendant's lesser moral culpability and greater rehabilitative potential when compared to an adult offender, as it discretionarily sentenced defendant to 7 years for the armed robbery, only one year above the low end of the sentencing range of 6 to 30 years for that crime. 720 ILCS 5/18-2(b) (West 2012). The court's imposition of the mandatory 15-year firearm enhancement, in effect, required the court to impose a sentence that failed to account for defendant's criminal history and rehabilitative potential. We conclude this enhancement violates our community's evolving standard of moral decency.

¶ 27 As the Aikens court concluded, we find our decision is consistent with the evolving standards for juvenile offenders in this state as evidenced by the recent changes that have been made in the manner in which juveniles are tried and sentenced. See Pub. Act 99-69, § 10 (eff. Jan. 1, 2016) (adding 730 ILCS 5/5-4.5-105); Aikens , 2016 IL App (1st) 133578, ¶ 38, 407 Ill.Dec. 299, 63 N.E.3d 223. Now, when a person commits a criminal offense and is under 18 years of age at the time of the offense, the trial court must consider certain factors in sentencing the offender, including the person's age, maturity, impetuosity, background, and rehabilitative potential. 730 ILCS 5/5-4.5-105(a) (West 2016); Aikens , 2016 IL App (1st) 133578, ¶ 38, 407 Ill.Dec. 299, 63 N.E.3d 223. Moreover, the trial court "may, in its discretion, decline to impose any otherwise applicable sentencing enhancement based upon firearm possession." 730 ILCS 5/5-4.5-105(b) (West 2016); Aikens , 2016 IL App (1st) 133578, ¶ 38, 407 Ill.Dec. 299, 63 N.E.3d 223. Although these provisions do not apply retroactively, "they are indicative of a changing moral compass in our society when it comes to trying and sentencing juveniles as adults." Aikens , 2016 IL App (1st) 133578, ¶ 38, 407 Ill.Dec. 299, 63 N.E.3d 223.

¶ 28 CONCLUSION

¶ 29 For the foregoing reasons, we find the trial court's imposition of the mandatory 15-year firearm enhancement, as applied to defendant, violates the proportionate penalties clause of the Illinois Constitution, as it shocks our evolving standard of moral decency. Accordingly, we vacate the trial court's sentence and remand this cause for a resentencing hearing in line with the new sentencing scheme (730 ILCS 5/5-4.5-105 (West 2016) ), without imposition of the mandatory enhancement.

¶ 30 Vacated and remanded with directions.

Justices Chapman and Cates concurred in the judgment and opinion.