      [Cite as In re T.W., 2016-Ohio-3131.]
              IN THE COURT OF APPEALS
          FIRST APPELLATE DISTRICT OF OHIO
               HAMILTON COUNTY, OHIO



IN RE: T.W.                                   :   APPEAL NO. C-150327
                                                  TRIAL NO. 13-7225z

                                              :       O P I N I O N.




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.
                             OHIO FIRST DISTRICT COURT OF APPEALS



S TAUTBERG , 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

imposed the suspended DYS commitment. It ordered the 207 days that T.W. had

spent in Hillcrest to be credited to T.W.’s DYS commitment.

        {¶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 R.C. 2152.18(B).

        {¶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



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confined in connection with the delinquent child complaint upon which the order of

commitment is based.” R.C. 2152.18(B). DYS, in turn, “shall reduce the minimum

period of institutionalization that was ordered by * * * the total number of days that

the child has been so confined as stated by the court in the order of commitment * * *

.” Id.

         {¶6}   We have previously considered the question of how to determine

whether a juvenile has been “confined” as contemplated by R.C. 2152.18(B). In In re

D.P., 1st Dist. Hamilton No. C-140158, 2014-Ohio-5414, we did not have a sufficient

record to determine whether the youth was “confined” at Hillcrest, but we

established guidelines to consider in making such a determination. We ruled that a

juvenile court “must review the nature of the facility, to see if it is a secure facility

with measures sufficient to ensure the safety of the surrounding community.” Id. at ¶

18, citing State v. Napier, 93 Ohio St.3d 646, 648, 758 N.E.2d 1127 (2001). The

juvenile court “must also review the nature of the restrictions on the juvenile at the

facility to determine if the juvenile was ‘free to come and go as he wished’ or if he was

‘subject to the control of the staff regarding personal liberties’ * * * .” Id., quoting

Napier.

                                          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



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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 ten-second delay, but an alarm sounds if a

youth exits from his or her cottage without permission. When the children are inside

the cottages, they are supervised and they must ask permission to go to the bathroom

or to go into their rooms. The youth are not allowed to be in each other’s rooms.

       {¶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.



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                      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 R.C. 2152.18(B).

Based on the standard this court set forth in In re D.P., 1st Dist. Hamilton No. C-

140158, 2014-Ohio-5414, we hold that the trial court correctly concluded that time

spent at Hillcrest qualifies as “confinement” for purposes of determining

confinement credit under R.C. 2152.18(B).

       {¶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.



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       {¶15} Accordingly, we hold that juveniles at Hillcrest are “confined” for

purposes of calculating confinement credit under R.C. 2151.18(B). The trial court

therefore did not err by ordering T.W.’s DYS commitment to be reduced by the 207

days that T.W. was in Hillcrest.

       {¶16} The state next contends that the trial court erred because juveniles are

not entitled to credit for time spent at a residential center while on probation. The

state failed to raise this argument in the trial court and it is therefore forfeited absent

a claim of plain error. See State v. Comen, 50 Ohio St.3d 206, 211, 533 N.E.2d 640

(1990). No such claim was made.

       {¶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 R.C. 2152.18(B).

Alternately, the record does not support the conclusion that T.W. was confined while

attending the program at Hillcrest under the majority’s test. For these reasons, I

respectfully dissent.

       {¶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-5415, ¶ 11. R.C. 2152.18(B), as it applies in this case, states



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that the court shall 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. The court shall not include days that the

child has been under electronic monitoring or house arrest or days that the

child has been confined in a halfway house.

(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 R.C. 2152.18(B) as it does in

the adult system as articulated in cases like State v. Napier, 93 Ohio St.3d 646, 758

N.E.2d 1127 (2001). See the majority opinion at ¶ 6, citing In re D.P. at ¶ 18. In In re

D.P., this court constructed a definition of confinement that includes time in a

facility “with measures sufficient to ensure the safety of the surrounding

community,” and with safeguards such that the juvenile was not “free to come and go

as he wished” and was “subject to the control of the staff regarding personal

liberties.” In re D.P. at ¶ 18, citing Napier at 648.




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       {¶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 prevent a child in its care from

wandering off the premises. Even a child who simply attends school every day is not

free to walk away from the school grounds. If the child was to attempt to leave,

teachers or staff would prevent him from doing so. If he did leave the grounds,

schools are empowered to either contact local authorities or to hire attendance

officers who would take the child into custody and “conduct such youth to the school

he has been attending or should rightfully attend.” See R.C. 3321.17.

       {¶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




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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



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with those cases is contacting Hillcrest regularly to see if they have been brought

back so he can remove them from his tracking. In fact, he testified that he had never

once actually gone out to look for a child as a result of an AWOL report from

Hillcrest. It is hard to imagine how this would qualify as “measures sufficient to

ensure the safety of the surrounding community.”

       {¶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.




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       {¶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

R.C. 2152.18(B). In re D.P., 3d Dist. Auglaize Nos. 2-15-13 and 2-15-14, 2016-Ohio-

747. The court noted that when the juvenile was allowed to leave on the weekends,

he was placed on electronic monitoring and that, failure to return would constitute

escape. Id. at ¶ 25. Additionally, the West Central Juvenile Rehabilitation Center

was a “community corrections facility,” which means that the juveniles were under

“secure care and supervision twenty-four hours a day.” See Ohio Adm.Code 5139-36-

01(K). See also In re K.A., 6th Dist. Lucas No. L-12-1334, 2013-Ohio-3847, ¶ 2

(giving credit for “confinement” while the juvenile was held in a “community

corrections facility”).   Similarly, the Eighth Appellate District determined that a

juvenile was entitled to credit for confinement when he was detained in a “locked

intensive treatment unit” from which he was not free to come and go. In re J.K.S.,

8th Dist. Cuyahoga Nos. 101967 and 101968, 2015-Ohio-1312, ¶ 12.

       {¶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




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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 which facilities will qualify for detention credit. Throughout Ohio, there are a

limited variety of facilities that juvenile courts can utilize to house juveniles as the

result of delinquency proceedings.       The General Assembly is the branch better

capable of investigating these types of facilities and determining which qualify for

sentencing credit.       But with 12 appellate districts making               independent

determinations, we may come to inconsistent results which will only further confuse

matters.

        {¶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.



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