[Cite as In re A.M., 2017-Ohio-7624.]



                          IN THE COURT OF APPEALS
                 FIRST APPELLATE DISTRICT OF OHIO
                           HAMILTON COUNTY, OHIO



IN RE: A.M.                             :       APPEAL NOS. C-160532
                                                              C-160533
                                        :       TRIAL NOS. 15-1879Z
                                                           15-3035Z
                                        :


                                        :            O P I N I O N.




Appeals From: Hamilton County Juvenile Court

Judgments Appealed From Are: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: September 15, 2017


Office of the Ohio Public Defender and Charland Boland, Assistant State Public
Defender, for Defendant-Appellant,

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Alex Havlin, Assistant
Prosecuting Attorney, for Plaintiff-Appellee.
                    OHIO FIRST DISTRICT COURT OF APPEALS


DETERS, Judge.


       {¶1}   Appellant A.M. appeals the judgments of the Hamilton County

Juvenile Court denying his motions to include as confinement credit under R.C.

2152.18(B) time served at the Abraxas Ohio Residential Treatment Center

(“Abraxas”). We cannot determine if A.M. was confined at Abraxas for purposes of

R.C. 2152.18(B), because the trial court denied A.M.’s motions without taking any

evidence or making any findings regarding the nature of the Abraxas facility or

A.M.’s time at Abraxas, pursuant to the guidelines articulated in In re D.P., 1st Dist.

Hamilton No. C-140518, 2014-Ohio-5414. We, therefore, reverse the judgments of

the juvenile court and remand the matters for the development of the record and for

findings consistent with In re D.P.

                         Factual and Procedural Background

       {¶2}   On May 7, 2015, in the case numbered 15-1879Z, the juvenile court

adjudicated A.M. delinquent for committing acts, which had they been committed by

an adult, would have constituted the offense of statutory rape, a first-degree felony.

On May 21, 2015, in the case numbered 15-3035Z, the juvenile court adjudicated

A.M. delinquent for committing acts, which had they been committed by an adult,

would have constituted theft, a fifth-degree felony.

       {¶3}   On July 18, 2015, at the dispositional hearing, the juvenile court

suspended A.M.’s commitments to the Department of Youth Services (“DYS”), placed

him on indefinite probation under each case number, and ordered him to obey all

laws and orders of the court. In the case numbered 15-1879Z, the court ordered A.M.

to complete the residential treatment program at Paint Creek Youth Center (“Paint

Creek”). On November 2, 2015, after A.M. was terminated from Paint Creek, he was

                                           2
                     OHIO FIRST DISTRICT COURT OF APPEALS



transferred to the residential treatment program at Abraxas. He remained there

until March 11, 2016.

       {¶4}    On April 15, 2016, the juvenile court, after finding that A.M. had

violated the terms of his probation while at Paint Creek and Abraxas, terminated

A.M.’s probation in both cases, imposed the suspended commitments to DYS, and

ordered them to be served consecutively. The juvenile court granted A.M. credit for

the 231 days he had spent at the Hamilton County Youth Center and Paint Creek.

       {¶5}    On April 20, 2016, A.M. filed in each case a motion requesting credit

for three additional days he had spent at Paint Creek and the Hamilton County Youth

Center and for 131 days he had spent at Abraxas. The juvenile court granted A.M. the

additional three days of credit, but denied credit for the 131 days spent at Abraxas.

       {¶6}    At oral argument on the motion, A.M.’s counsel asserted that “Abraxas

is just as restrictive, if not more restrictive than Hillcrest,” the facility at issue in In re

T.W., 2016-Ohio-3131, 66 N.E.3d 93 (1st Dist.). The juvenile court disagreed, stating

that because “the testimony in In re T.W. was taken only on the secure system at

Hillcrest, the decision applied to only those cases involving placement at Hillcrest.”

A.M.’s counsel requested a hearing to present evidence regarding Abraxas and A.M.’s

time there. The juvenile court denied counsel’s request, stating that A.M. did not

want a hearing because the court “knowing what [it] knows” about the Abraxas and

Hillcrest facilities would not grant confinement credit for Abraxas because it would

not have granted confinement credit for Hillcrest.

                                             Analysis

       {¶7}    In his first assignment of error, A.M. asserts the juvenile court erred

“by denying his request for a hearing to present evidence regarding his confinement

                                              3
                    OHIO FIRST DISTRICT COURT OF APPEALS



at Abraxas in order to receive credit in violation of R.C. 2152.18(B); In re D.P., 1st

Dist. Hamilton No. C-140158, 2014-Ohio-5414, Fifth and Fourteenth Amendments to

the U.S. Constitution; and Article 1, Section 16 Ohio Constitution.” In his second

assignment of error, A.M. asserts that the juvenile court erred by failing to credit him

with the time he was confined at Abraxas. Because A.M.’s assignments of error are

interrelated, we address them together.

       {¶8}   R.C. 2152.18(B) requires the juvenile court, when committing a

delinquent child to the custody of DYS, “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.” DYS must then

“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.” While the term “confined” is not defined in the statute, the

statute expressly prohibits the juvenile court from including days that the child has

been on electronic monitoring, on house arrest, or confined in a halfway house. R.C.

2152.18(B).

       {¶9}   In In re D.P., this court provided guidelines for determining whether a

child has been confined for purposes of R.C. 2152.18(B).          In re D.P. at ¶ 18.

Following the interpretation of “confinement” set forth in State v. Napier, 93 Ohio

St.3d 646, 758 N.E.2d 1127 (2001), we held

       [T]he 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.       [It] must also review the nature of the

       restrictions on the juvenile at the facility to determine if the juvenile

                                           4
                      OHIO FIRST DISTRICT COURT OF APPEALS



       was “free to come and go as he wished” or if he was “subject to the

       control of the staff regarding personal liberties.”

In re D.P. at ¶ 18.

       {¶10} In In re D.P., this court did not have a sufficient record to determine

whether the child had been confined at the Hillcrest facility because the parties had

failed to present any evidence regarding the nature of the facility or the conditions

affecting the child’s personal liberties. The juvenile court, likewise, did not make any

findings relative to the nature of the facility or D.P.’s time there. Without this

evidence, we could not determine if D.P. had been confined at Hillcrest under the

guidelines we had adopted. Consequently, we remanded D.P.’s case to the juvenile

court for development of the record regarding the nature of the Hillcrest facility and

the staff’s control regarding D.P.’s personal liberties and for the juvenile court to

determine whether he had been “confined” within the meaning of R.C. 2152.18(B).

Id. at ¶ 20.

       {¶11} Subsequently, in In re T.W., 1st Dist. Hamilton No. C-150327, 2016-

Ohio-3131, this court affirmed the juvenile court’s decision ordering that T.W.’s DYS

commitment be reduced by the 207 days he had spent at the Hillcrest facility. After

reviewing the evidence that had been presented in the juvenile court in light of the

D.P. guidelines, we concluded that juveniles at Hillcrest were confined for purposes

of R.C. 2152.18(B) because Hillcrest had measures in place to protect the community,

and that the children at Hillcrest were subject to the control of staff regarding their

personal liberties. Id. at ¶ 12-15.

       {¶12} Here, the juvenile court ignored the guidelines for awarding

confinement credit set forth in In re D.P. and focused solely on this court’s decision

                                            5
                    OHIO FIRST DISTRICT COURT OF APPEALS



in In re T.W. But contrary to the juvenile court’s interpretation, In re T.W. does not

stand for the proposition that no other facilities outside of Hillcrest will be

considered confinement. As A.M. points out, the guidelines in In re D.P. require the

juvenile court to consider each facility on an individual basis and to make findings

regarding the nature of the facility and the restrictions on the juvenile during his

placement there, so that this court may conduct a meaningful review.

       {¶13} Other appellate courts that have interpreted R.C. 2152.18(B) have

adopted guidelines based on Napier’s definition of confinement and have

determined that other types of facilities may be considered confinement based on the

nature of the facility and the conditions affecting the juvenile’s personal liberties.

See In re K.A., 6th Dist. Lucas No. L-12-1334, 2013-Ohio-3847 (holding that juvenile

was entitled to credit for time at Youth Treatment Center); In re D.P., 3d Dist.

Auglaize Nos. 2-15-13 and 2-15-14, 2016-Ohio-1312 (holding juvenile was entitled to

credit for time at West Central Juvenile Rehabilitation Center); In re J.K.S., 8th Dist.

Cuyahoga Nos. 101967 and 107968, 2015-Ohio-1312, ¶ 10-12 (holding juvenile’s

placement at a residential “locked intensive treatment unit” was confinement). The

Eleventh Appellate District has reversed a juvenile court’s decision to deny

confinement credit where the juvenile court applied the wrong law and the

evidentiary record had not been developed so as to permit a meaningful review of the

juvenile facility and the severity of the restrictions placed upon the juvenile. See In

re J.C.E., 11th Dist. Geauga No. 2016 W-G-0062, 2016-Ohio-7843, ¶ 42-47.

       {¶14} Here, the juvenile court’s bare assertion that Abraxas would not

qualify as confinement because it is a residential treatment program is insufficient to

permit this court to conduct any meaningful review. While the juvenile court may be

                                           6
                    OHIO FIRST DISTRICT COURT OF APPEALS



familiar with the Abraxas facility, the scant record before us does not permit this

court to effectively review the juvenile court’s determination that A.M. was not

entitled to confinement credit.

       {¶15} We therefore, sustain A.M.’s assignments of error on the authority of

In re D.P., reverse the judgments of the juvenile court, and remand this cause for

further proceedings consistent with this opinion and the law.

                                                Judgments reversed and cause remanded.


MOCK, P.J., and ZAYAS, J., concur.

Please note:

The court has recorded its own entry on the date of the release of this opinion.




                                            7
