[Cite as In re M.F. , 2019-Ohio-709.] 

# Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION Nos. 107452 and 107455

IN RE: M.F. Minor Child

JUDGMENT: REVERSED AND REMANDED

Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case Nos. DL 16109093 and DL 17114502

BEFORE: Keough, J., S. Gallagher, P.J., and Jones, J.

RELEASED AND JOURNALIZED: February 28, 2019

ATTORNEY FOR APPELLANT Tim Young Ohio Public Defender By: Lauren Hammersmith Assistant State Public Defender 250 East Broad Street, Suite 1400 Columbus, Ohio 43215

ATTORNEYS FOR APPELLEES Michael C. O’Malley Cuyahoga County Prosecutor By: Michael A. Short Assistant County Prosecutor 1200 Ontario Street, 9th Floor Cleveland, Ohio 44113

Also Listed For T.S. (Mother)

T.S. 5069 Stanley Avenue Maple Hts., Ohio 44137 For J.F. (Father)

J.F. 719 Cedar Avenue Ravenna, Ohio 44137

KATHLEEN ANN KEOUGH, J.: {¶1} M.F. appeals the juvenile court’s judgment denying her motion for recalculation of confinement credit. She contends that she was “confined” at the Carrington Youth Academy (“CYA”) for 126 days, and the juven ile court erred by failing to cred it her with the days she spent there. We reverse and remand with instructions for the trial court to hold a hearing to determine

whether M.F. was “confined” at CYA for purposes of R.C. 2152.18(B) so as to be entitled to credit for the time she spent there. I. Background {¶2} In July 2016, M.F. was charged by compla int in Cuyahoga Juvenile Court No. DL 16109093 with offenses which, if committed by an adult, would constitu te tampering with evidence, with a firearm specifi cation; conveying a deadly wea pon or dangerous ordnance in a school safety zone, with a firear m specification; carrying a conceal ed weapon; and falsification. In August 2016, M.F. admitted to and was adjudicat ed delinquent on all c ounts, and the firearm specifications were dismisse d. At disposition, the court committed M.F. to the Ohio Department of Youth Services (“ODYS”) for a minimum period of 6 months, maximum to her 21st birthday, and suspended the commitment on the condition that she comply with the terms of probation. {¶3} In September 2017, M.F. was charged in Cuyahoga Juvenile Court No. DL 17114502 for an offense which, if committed by an a dult, would constitute domestic violence. Following trial, the juvenile court found M.F. delinquent and committed her to ODYS for a minimum period of six months, maximum to age 21. The court invoked the suspended

six-month sentence in No. DL 16109093 and ordered that the sentence be served consecutive to the sentence in No. DL 17114502. The juvenile c ourt granted M.F. 13 days credit for time

served. {¶4} M.F. subsequently filed motions in bot h cases for recalculation of confinement

credit. She asserted that she was confined fo r a total of 168 days relating to the two cases, including 126 days at the CYA. Without holdi ng a hearing on the motions, the trial court granted M.F.’s motions in part and denied them in part. It granted M.F. 42 days credit for time served at the Cuyahoga County Juvenile Detention Center but denied credit for time served at the CYA. This appeal followed. II. Law and Analysis {¶5} In her single assignment of error, M.F. contends that the juve nile court erred by not granting her credit for the 126 days she was at the CYA. {¶6} R.C. 2152.18(B) provides that when a j uvenile court commits a delinquent child to ODYS custody, “the court shall state in the or der of commitment the tota l number of days that

the child has been confined in connection w ith the delinquent child complaint upon which the

order of commitment is base d.” ODYS 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.” Id. {¶7} The term “confined” is not defined in R.C. Chapter 2152. Nevertheless, this court and others have recognized that the term is to be defined broadly. In re J.K.S. , 8th Dist. Cuyahoga Nos. 101967 and 101968, 2015-Ohio-1312, ¶ 10, citing In re D.P. , 1st Dist. Hamilton No. C-140158, 2014-Ohio-5414, ¶ 18; In re K.A. , 6th Dist. Lucas No. L-12-1334, 2013-Ohio-3847, ¶ 23. In considering whether a juve nile is “confined” in a facility for purposes of R.C. 2152.18(B), juvenile courts must review the nature of the facility, to see if it is a secure facility with measures sufficient to ensure th e safety of the surrounding community. They 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.

In re J.K.S. at ¶ 10, quoting In re D.P. at ¶ 18. {¶8} In this case, there is nothing in the r ecord from which we can ascertain whether

M.F.’s time at CYA constitutes “confinement” for purposes of R.C. 2152.18(B). The parties cite to no evidence in the record regarding the nature of the CYA or the conditions affecting M.F.’s personal liberties during her time there. {¶9} Likewise, the juvenile court did not take any evidence or make any findings relative to the nature of the CYA or M.F.’s time there before denying M.F. credit for the time she served there. The court’s journal entry states: This court, aware that Carrington Youth Academy is a similar facility to Cleveland Christian Home and that y outh in shelter care are monitored and supervised on a lower level than those who are in residential treatment, finds that Carrington Youth Academy, in its shelter care status, does not meet the definition of secured facility. {¶10} But the court’s alleged personal knowledge cannot substitute for evidence regarding the qualities of the CYA and the specific nature of M.F.’s experience there in order to determine whether she was sufficiently restricted so as to constitute “confinement” for purposes of R.C. 2152.18(B). Without such evidence, the trial court could not adequately determine whether M.F. was entitled to credit for the time she spent at the CYA. {¶11} Furthermore, without any evidence in the record regarding the qualities of the CYA and M.F.’s experience there, we cannot conduct a meaningful review of whether M.F. was “confined” at the CYA so as to be entitled to credit for the time she spent there. Accordingly, we reverse the trial court’s judgments denyin g her motions for recalculation of confinement credit, and remand with instructions for the court to hold a hearing at which it considers evidence relating to the nature of the CYA to determine if it is a secure facility, and to the nature of the restrictions on M.F. while she was at the CYA to determine if she was free to come and go as she wished, or if she was subject to the control of the staff regarding her personal liberties. We note

that the state concedes that the trial court e rred in not holding a hearing on M.F.’s motion. {¶12} Judgment reversed and remanded. It is ordered that appellant rec over from appellee costs herein taxed.

The court finds there were reas onable grounds for this appeal. It is ordered that a special mandate be sent to said court to carry this judgment into

execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appella te Procedure.

KATHLEEN ANN KEOUGH, JUDGE SEAN C. GALLAGHER, P.J., and LARRY A. JONES, SR., J., CONCUR