IN RE: T.W.
APPEAL NO. C-150327
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
May 25, 2016
2016-Ohio-3131
TRIAL NO. 13-7225z
Appeal From: Hamilton County Juvenile Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: May 25, 2016
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Rachel Lipman Curran, Assistant Prosecuting Attorney, for appellant State of Ohio,
Timothy Young, Ohio Public Defender, and Charlyn Bohland, Assistant State Public Defender, for appellee T.W.
Please note: this case has been removed from the accelerated calendar.
O P I N I O N.
STAUTBERG, Judge.
{¶1} In this case, the state appeals the trial court‘s judgment ordering confinement credit on T.W.‘s commitment to the Department of Youth Services (“DYS“) for time T.W. spent at Hillcrest School (“Hillcrest“), a children‘s residential center. We affirm the judgment of the trial court.
{¶2} T.W. admitted to engaging in conduct that, had he been an adult, would have constituted the crime of aggravated assault with a firearm specification. After accepting T.W.‘s plea, the trial court imposed a DYS commitment, suspended it, and ordered T.W. to attend Hillcrest as a condition of probation. After T.W. repeatedly violated the rules at Hillcrest, the trial court revoked T.W.‘s probation and
{¶3} The state now appeals. In a single assignment of error it contends that T.W. was not entitled to have his DYS commitment reduced by the days that he spent in Hillcrest because T.W. was not “confined” as contemplated by
{¶4} The facts in this case are not in dispute. We are therefore faced with the purely legal question of whether the trial court correctly applied the facts to the law in determining that time spent at Hillcrest constitutes “confinement.” Questions of law are reviewed de novo. State v. Lamke, 1st Dist. Hamilton No. C-110725, 2013-Ohio-925, ¶ 8, citing State v. Consilio, 114 Ohio St.3d 295, 2007-Ohio-4163, 871 N.E.2d 1167, ¶ 8, and Dikong v. Ohio Supports, Inc., 2013-Ohio-33, 985 N.E.2d 949, ¶ 16 (1st Dist.).
Confinement Credit
{¶5} When a juvenile court commits a juvenile to DYS, it is required to “state in the order of commitment the total number of days that the child has been confined in connection with the delinquent child complaint upon which the order of commitment is based.”
{¶6} We have previously considered the question of how to determine whether a juvenile has been “confined” as contemplated by
Hillcrest
{¶7} Hillcrest is a children‘s residential center. The 80-acre campus includes a school, a cafeteria, a weight room, a gymnasium, an administrative building, and residential cottages. Children at Hillcrest are monitored by staff 24 hours a day, every day. There are 111 cameras at the facility. The Hillcrest juveniles have a highly regimented day which includes attending school, physical education courses, treatment groups, and vocational classes. Staff members escort the children to and from each activity. The youth may not use the bathroom or get a drink of water without permission. If the children are taking part in an organized activity such as playing football, staff is positioned so that the youth are always in a staff member‘s line of sight. If the children are in the gymnasium, staff members are positioned at each door. The juveniles are subject to bed checks every 15 minutes throughout the night.
{¶8} The youth do not have unfettered access to their residential cottages. Staff members must use a key card to open the cottage doors. For safety reasons, the cottage doors open from the inside after a
{¶9} It is possible for juveniles to walk off of Hillcrest property because the campus is not fenced. However, there are consequences for children who leave Hillcrest without permission. Staff will intervene to keep a child on campus, and will use physical restraint if necessary to keep the child from leaving. If a child does leave campus without permission, staff contacts local police to assist in bringing the child back. Further, a probation violation or a violation of court order charge is filed, and a warrant issues, subjecting the child to arrest.
{¶10} Children sometimes leave the Hillcrest campus for various activities and outings. Every off-campus activity is staff-supervised. The juveniles are not allowed to be anywhere without supervision during these trips.
{¶11} The juveniles at Hillcrest can earn weekend passes home. While at home, the child is monitored by his or her parent or legal custodian. Should a juvenile fail to return to Hillcrest after a home visit, that juvenile will be charged with a violation of a court order, and a warrant will issue for the child‘s arrest.
Time Spent at Hillcrest is “Confinement”
{¶12} The state essentially contends that because Hillcrest is not an enclosed, locked facility, and because the children are allowed weekend passes home, the children at Hillcrest are not “confined” as contemplated by
{¶13} First, there are measures in place to ensure the safety of the surrounding community. The presence or absence of a fence is not dispositive of this factor. The youths are not free to leave the grounds without permission. While the youths may have the ability to walk or run away, staff members will attempt to physically stop any juvenile trying to leave. If a youth does leave the grounds without permission, the police are contacted, a charge is filed, and a warrant is issued for the child‘s arrest. There are similar consequences for a child who does not return to Hillcrest after a weekend pass home.
{¶14} Second, the children at Hillcrest are subject to the control of the staff regarding their personal liberties. They may not move freely about the Hillcrest campus, and are escorted to and from every activity. They do not have access to their cottages without staff assistance. If a juvenile attempts to leave his or her cottage without permission, an alarm sounds. The youths may not have other juveniles in their rooms. The juveniles cannot use the restroom or get a drink of water without permission. The children are monitored 24 hours a day, every day. There are 111 cameras on the campus. Further, weekend passes home must be earned. Time at home is not at the discretion of the child.
{¶15} Accordingly, we hold that juveniles at Hillcrest are “confined” for purposes of calculating confinement credit under
{¶17} The state‘s sole assignment of error is overruled.
Conclusion
{¶18} The trial court‘s judgment ordering 207 days of confinement credit is affirmed.
Judgment affirmed.
CUNNINGHAM, P.J., concurs.
MOCK, J., dissents.
MOCK, J., dissenting.
{¶19} I do not believe that this court has articulated an appropriate standard for determining when a juvenile is “confined” as that term is used in
{¶20} As the majority noted, the section of the Revised Code that controls the award of credit for juveniles has been changed. See In re D.P., 1st Dist. Hamilton No. C-140158, 2014-Ohio-5414, ¶ 11.
(Emphasis added.)
{¶21} The way the statute reads, the award of credit by the trial court is determined by a two-part test. First, the trial court must determine whether the child was “confined.” If the child was confined, the next step is to determine whether that confinement occurred while under electronic monitoring, house arrest, or while confined in a halfway house. The language makes clear that such conditions would otherwise be considered confinement, because there would be no other reason to specifically list them as exceptions. If the child was confined and was not confined in any of those excepted institutions, he or she received credit for his or her confinement.
{¶22} Following our decision in In re D.P., the majority begins with the premise that “confinement” has the same meaning in
{¶23} The problem with this test is that adults and juveniles are not similarly situated. The main thrust of the majority‘s analysis is that T.W. was not “free to come and go as he wished” and was “subject to the control of the staff regarding personal liberties.” But NO child is free to come and go as they wish. Any institution acting in loco parentis would be required to
{¶24} On the other hand, adults are generally free to come and go as they choose. If a trial court orders an adult to obtain his or her G.E.D., receive substance-abuse counseling, vocational training, or any of the many possible conditions of community control, no staff member of those programs will physically prevent that adult from getting up and walking out of the building. The police will not be immediately contacted. So, when those conditions do exist for an individual in the adult system, they are a noteworthy restriction of that individual‘s liberty. But with children, such restrictions are the norm based only on the fact that they are children.
{¶25} The ideal solution would be to have the General Assembly revisit the legislation and, at the conclusion of its fact-finding process, expand on the statute in order to list specifically which institutions would qualify as confinement under the statute. That is the body best suited to weigh the public-policy factors and adapt legislation to meet those considerations. See Arbino v. Johnson & Johnson, 116 Ohio St.3d 468, 2007-Ohio-6948, 880 N.E.2d 420, ¶ 127 (the General Assembly establishes the laws and public policies of the state).
{¶26} Alternately, I believe that any version of the definition of “confinement” must encompass actual and effective physical restraint within a secure facility. See In re D.P., 3d Dist. Auglaize Nos. 2-15-13 and 2-15-14, 2016-Ohio-747, ¶ 20 (citing various dictionary definitions of “confinement” to mean “the act of imprisoning or restraining someone,” “to hold within bounds,” “to restrain from exceeding boundaries,” “to keep in narrow quarters“). Without such additional criteria, our definition of “confinement” would encompass almost every activity a juvenile might be ordered to undergo as part of his community control.
{¶27} But even applying the standard articulated by the majority, I would not find that T.W.‘s stay in Hillcrest constituted confinement. First, I would not find that the facility implemented “measures sufficient to ensure the safety of the surrounding community.” The complex itself looks more like a college campus than a juvenile corrections facility. The facility is not fenced in and the only gate on the property is on the main driveway. But that gate is open throughout the day and is not attached to any kind of wall. So, even if the gate were closed, a child would simply have to walk around it in order to leave. There is nothing preventing a child from leaving campus other than the attempts of staff to do so. There is also nothing to prevent outside persons from coming onto the property.
{¶28} And when children do leave the facility—and, with 45 escapes, the record indicates that it happens regularly—information is simply sent to the Springfield Township police department. But the detective for Springfield Township who testified said that they do not actually pursue the children. The AWOL Hillcrest residents are rolled into his other runaway cases. The only work the detective does with those cases is contacting Hillcrest regularly to see if they have been brought
{¶29} For similar reasons, I would also conclude that Hillcrest does not have safeguards such that the juvenile is not “free to come and go as he wished” and is “subject to the control of the staff regarding personal liberties.” While there was testimony that the children‘s day is structured and supervised, there is no real consequence for noncompliance. Joseph Kurtz, Director of Student Services at Hillcrest, testified as follows:
Q. So, in other words, the child does have control over what they choose to do or not to do? They just have consequences that are in line with what they choose to do or not to do?
A. The child has choices. And so from the staff standpoint, we would deal with the choices that the child has made. We‘ll document the progress or lack of progress they are making.
Q. They‘re not forced to go to this - - there‘s nobody that pulls them up off their feet, drags them to go to school?
A. Correct.
Q. Nobody that forces them to go to behavioral training or modification or anything on those things?
A. Correct.
{¶30} Kurtz also testified that Hillcrest had no real way to securely contain juveniles who were persistently noncompliant. While noting that a few of the offices had been used on an ad hoc basis to secure individuals, the facility does not have any rooms or buildings designed for that purpose. In my view, choices with no real consequences are not such a restraint on the personal liberties of the juveniles in the program to constitute confinement.
{¶31} In a recent case, the Third Appellate District found that time spent in the West Central Juvenile Rehabilitation Center was confinement for the purposes of
{¶32} On the other hand, Hillcrest is a “children‘s residential center” that is, according to Kurtz, “any facility that is over 11 children that is non secure and 24 hours of supervision.” Any restraints on T.W.‘s liberty were so incidental to his age that they were more akin to the restrictions on a child at boarding school. They do not compare to the restraints that have been found to be sufficient by our sister districts.
{¶33} And I believe that this is the problem with the courts attempting to define
{¶34} This court‘s experience with the question makes the point. In In re D.P., this court remanded the case to the trial court because we did not have enough “evidence as to the nature of Hillcrest and the nature of the staff‘s control regarding D.P.‘s personal liberties” and the “severity of the restrictions placed upon D.P.‘s freedom.” In re D.P. at ¶ 20. The transcript from the resulting proceeding below reads more like it came from a hearing before the Judiciary Committee of the Ohio House of Representatives. The court is not the place to craft the corrections policy of the state of Ohio, and I would strongly encourage members of the General Assembly to take up the task of fleshing out this legislation to clarify which facilities fall within the definition of confinement.
{¶35} If we are compelled to continue to utilize this definition of confinement, which I do not believe is appropriate, I do not think that Hillcrest satisfies the test. Therefore, I respectfully dissent.
Please note:
The court has recorded its own entry on this date.