[Cite as In re A.U., 2023-Ohio-4341.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT WILLIAMS COUNTY
In re A.U. Court of Appeals No. WM-23-002
Trial Court No. 20202035
DECISION AND JUDGMENT
Decided: December 1, 2023
*****
Katherine Zartman, Williams County Prosecuting Attorney, for appellee.
Victoria Ferry, for appellant.
DUHART, J.
{¶ 1} This is an appeal from the December 16, 2022 judgment of the Williams
County Court of Common Pleas, Juvenile Division, finding appellant, A.U., was not
entitled to credit for being confined for the time he spent at the Marsh Foundation
(“Marsh”). For the reasons that follow, we affirm the judgment. {¶ 2} A.U. sets forth one assignment of error:
The trial court erred when it denied A.U.’s request for confinement
credit for his time served at the Marsh Foundation.
Background
{¶ 3} In April 2020, it was reported to the Bryan Police Department that when
A.U. was 13 years old, he had sexual contact with a juvenile1 under 13 years of age.
Thereafter, A.U. was charged in juvenile court with one count of gross sexual imposition,
a felony of the fourth degree if committed by an adult, based on events which occurred
December 20 through December 31, 2018.2 The charge was then amended to attempted
gross sexual imposition, a felony of the fourth degree if committed by an adult. A.U.
admitted to the amended charge and was adjudicated delinquent.
{¶ 4} At disposition, in September 2020, the court ordered that A.U. be committed
to the legal custody of the Ohio Department of Youth Services (“DYS”) for a minimum
period of 6 months to a maximum of age 21; the commitment was suspended. The court
also ordered that A.U. was ordered placed at the Northwest Ohio Juvenile Detention,
Training and Rehabilitation Center (“JDC”) for 90 days; those days were suspended. The
1 Some of the filings in the record refer to two juvenile victims, yet the complaint filed in juvenile court alleges one victim was involved. We will refer to only one victim. 2 Some of the filings in the record set forth the events occurred in December 2019, but the complaint alleges A.U. engaged in sexual contact with the victim in December 2018. We will reference the December 2018 time period.
2. court further ordered that A.U. was placed on probation for 6 months, and he was ordered
to comply with all probation provisions.
{¶ 5} In mid-October 2020, A.U. was before the juvenile court and ordered to
complete treatment at Marsh. One year later, A.U. was released from Marsh to house
arrest. While on house arrest, A.U. was prohibited from possessing a cell phone.
{¶ 6} In late November 2021, A.U. was detained by order of the Williams County
Probation Department (“the probation department”), and a hearing was held where the
juvenile court found that detention was required as A.U. is a danger to the community
and A.U. was not under the reasonable control of a parent at home. The next day, a
probation violation was filed based on A.U.’s possession of a cell phone which he used,
at school, to access pornographic websites.
{¶ 7} In January 2022, the juvenile court found A.U. violated his probation. The
court re-suspended his DYS sentence and ordered A.U. committed to the Juvenile
Residential Center of Northwest Ohio (“JRC”) for 90 days.
{¶ 8} In late April 2022, A.U. was detained by order of the probation department.
In early May 2022, the juvenile court held a hearing and found that detention was
required based on A.U.’s failure to adhere to JRC’s rules, as he threated bodily harm to
another juvenile and directed offensive language towards the staff. Another hearing was
held where A.U. was found to be delinquent due to the violation of his probation.
Pending disposition of that violation, in early June 2022, A.U. was again detained upon
3. order of the probation department. The juvenile court held a hearing and found detention
of A.U. was required to protect others from immediate or threatened physical or
emotional harm, and A.U. was not under the reasonable control of JRC.
{¶ 9} In late June 2022, the juvenile court found A.U. violated his probation. The
court ordered A.U. committed to DYS for a minimum period of 6 months, maximum to
age 21. Thereafter, A.U.’s probation was terminated.
{¶ 10} On November 1, 2022, A.U.’s counsel filed a motion for recalculation of
confinement credit. The state filed a response, then A.U.’s counsel filed a supplement to
the motion. On December 16, 2022, a motion hearing (“the Hearing”) was held where
only one witness, Ben Marse, Program Manager of Marsh, testified. The juvenile court
issued a judgment entry, finding that A.U. should receive credit for confinement for the
time he spent at JDC and JRC, but should not receive credit for confinement for the time
he spent at Marsh, as it is not a secure facility, and does not constitute confinement under
R.C. 2152.18(B). A.U. appealed.
Assignment of Error
{¶ 11} A.U. argues Marsh is a secure facility for youth, and pursuant to R.C.
2152.18(B), the time he spent there constitutes confinement, which should be reflected in
his confinement credit.
4. Law
{¶ 12} R.C. 2152.18(B) provides:
When a juvenile court commits a delinquent child to the custody of
the department of youth services [(“DYS”)] pursuant to this chapter, 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.
{¶ 13} The statute further states:
[DYS] shall reduce the minimum period of institutionalization that
was ordered by both the total number of days that the child has been so
confined as stated by the court in the order of commitment and the total
number of any additional days that the child has been confined subsequent
to the order of commitment but prior to the transfer of physical custody of
the child to [DYS].
{¶ 14} Confinement has been defined by the Supreme Court of Ohio as time spent
at any facility in which an individual is “not free to come and go as [that individual]
wishes.” State v. Napier, 93 Ohio St.3d 646, 648, 758 N.E.2d 1127 (2001). There, the
court addressed whether an adult offender’s time in a community-based corrections
facility (“CBCF”) should be credited against prison time. Id. at 647. The court noted
5. that “[t]he outer doors to the [CBCF at issue] are locked, except for the fire doors, which
have an alarm strike panel. There are certain areas within the facility where residents can
move about freely; however, there are also restricted areas that residents cannot enter
without permission. The outside recreation yard is surrounded by a fence.” Id. at 646.
{¶ 15} The court relied on its holding in State v. Snowder, 87 Ohio St.3d 335, 337,
720 N.E.2d 909 (1999), in which it found that Snowder “was ‘confined’ * * *while in the
CBCF,” for purposes of the relevant statute. Napier at 647. That statute required that a
CBCF “‘[b]e a secure facility that contains lockups and other measures sufficient to
ensure the safety of the surrounding community.’” Id. at 647.
{¶ 16} In In re K.A., 6th Dist. Lucas No. L-12-1334, 2013-Ohio-3847, ¶ 5, this
court followed the definition of confinement set forth in Napier in deciding whether a
juvenile was entitled to credit for time spent at a community corrections facility (“CCF”)
pursuant to R.C. 2152.18(B).
{¶ 17} Likewise, the court in In re D.P., 1st Dist. Hamilton No. C-140158, 2014-
Ohio-5414, ¶ 18, adhered to the definition of confinement set forth in Napier, and also
elaborated on that definition, it in the context of R.C. 2152.18(B), setting forth a two-
prong analysis: (1) “juvenile courts 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,” and (2) the 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’
6. or if he was ‘subject to the control of the staff regarding personal liberties’ as
contemplated by Napier.” Id. See also In re M.F., 2020-Ohio-109, 151 N.E.3d 981 (8th
Dist.).
{¶ 18} In In re J.C.E., 11th Dist. Geauga No. 2016-G-0062, 2016-Ohio-7843, the
issue before the court was whether the juvenile court erred by not giving J.C.E. credit for
the time he spent in a CCF. The appellate court, citing, inter alia, Napier, set forth that a
juvenile court can examine the nature of the CCF in order to determine whether
restrictions on the juvenile are so stringent as to constitute confinement under R.C.
2152.18(B). In re J.C.E. at ¶ 29. The court further set forth that in every aspect of a
juvenile’s life, the juvenile is not free to come and go as desired, and although a juvenile
is subject to the rules of the household and school, some of which may be restrictive,
these rules are not restrictions which amount to what it means to be confined under R.C.
2152.18(B). Id.
Standard of Review
{¶ 19} We review a juvenile court’s calculation of confinement credit for an abuse
of discretion. In re J.K.S., 8th Dist. Cuyahoga No. 101967, 2015-Ohio-1312, ¶8, citing
In re H.V., 138 Ohio St.3d 408, 2014-Ohio-812, 7 N.E.3d 1173, ¶ 8, where the Supreme
Court of Ohio set forth that “[a] juvenile court’s disposition order will be upheld unless
the court abused its discretion.” An abuse of discretion indicates the court’s attitude is
7. unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217,
219, 450 N.E.2d 1140 (1983).
Arguments in Support of Assignment of Error
A.U.’s Arguments
{¶ 20} A.U. argues that based on the guidance of Ohio courts, Marsh meets the
requirements for a secure facility. A.U. insists that while at Marsh, he was confined in a
secure facility, under R.C. 2152.18(B), and is entitled to credit for his time served there.
{¶ 21} In support of his arguments, A.U. refers to portions of the Hearing
testimony of Marse, Marsh’s Program Manager, including the following.
Marse’s Testimony
{¶ 22} Marsh is located in Van Wert County, Ohio, and is about one quarter to
half a mile from the neighboring town. Marsh consists of five homes, three of which are
occupied only by juveniles. Throughout Marsh, the doors remained locked, “especially
the classrooms and offices,” so to gain entry, one must push a call button to speak with
someone or use a key fob, and residents are not given access to keys for their rooms. In
the homes, there are blocks on certain windows to prevent juveniles from engaging in
self-harm and attempting to leave.
{¶ 23} When a juvenile is transitioning to any other location on Marsh’s grounds,
the juvenile is escorted by staff or “there’s always communication [between staff
members] of sending and receiving [a juvenile] from one person to the next.” A juvenile
8. is in eyesight of staff a majority of the time, or staff “can determine if the child is a safety
risk.” There is a ratio of two to three juveniles per staff member throughout Marsh’s
grounds. Staff consistently count residents to ensure everyone is accounted for on
Marsh’s premises, and to make sure all youth are safe and where they are supposed to be.
{¶ 24} Marsh also has cameras throughout the buildings, which run 24 hours a
day. The cameras “cover a vast, vast majority of the areas where there’s only very, very
few blind spots,” and juveniles are “within a camera ninety-five (95) percent of the time.”
The cameras are backed up to a server so footage can be retrieved at a later date if
needed.
{¶ 25} Marsh has specific overnight staff assigned to supervise, and the staff
member “is always in an awake position from 10 p.m. to 8,” and conducts bed checks six
times. If a juvenile needs to get up for water or to use the restroom at night, the juvenile
must push a call button in the bedroom which notifies the staff member, on the alarm
panel in the office. The notification is accompanied by a beeping sound which continues
until the floor is disarmed by the staff member, who then immediately watches the
monitor. The monitor displays all of the cameras which show the juvenile “traveling to
and from.” Upon the juvenile’s return to the bedroom, the staff member re-alarms the
floor.
9. {¶ 26} Marsh maintains strict protocol for any off-ground required appearances by
juveniles, such as medical appointments or court hearings, and juveniles are escorted by
legal guardians or staff to and from these activities.
{¶ 27} If staff have a suspicion that a juvenile will leave Marsh, or there was a
specific threat, staff are required to call police immediately. Marsh is in a rural area, so
staff maintain eyesight on the juvenile until the juvenile is returned to Marsh by the
police.
Further Arguments by A.U.
{¶ 28} A.U. contends that he was not able to come and go as he pleased while at
Marsh. He maintains the juveniles at Marsh are closely monitored and subjected to staff
control regarding personal liberties, and juveniles do not have the freedom to come and
go from the homes. In addition, A.U. asserts Marsh maintains distance from its
neighboring towns, which ensures community safety.
State’s Arguments
{¶ 29} The state argues Marsh is not a secure facility. The state notes the juvenile
court did not find Marsh to be a secure facility, as the court set forth “[i]n all of the
incidences [the court] * * * had with that facility that has never been the understanding
that the Court considered [it] to be a secured facility * * * it’s a group home for youth, it
is a treatment opportunity to be used.”
10. {¶ 30} In support of its arguments, the state also cites to portions of Marse’s
testimony, including the following.
{¶ 31} Marsh is a qualified residential treatment program in a family-oriented
setting, focused on providing behavioral treatment and clinical services, not punishment
or security. Marsh is not a CCF (community correctional facility), a detention facility or
a DYS-alternative.
{¶ 32} Marsh residents are supervised by staff, who do not carry weapons or tools
to protect themselves from violence by the juveniles. Staff are trained to deescalate and
restrain on a matching or lower level than that of the juvenile, only if necessary, and then
staff release the juvenile as soon as the danger ceases.
{¶ 33} Marsh’s property is not secured in a way to keep the juveniles enclosed or
to prevent juveniles from entering the nearby community without the approval of the
staff, as there are no fences or other structures surrounding the property. Marsh’s
residents are able to leave the property, and upon return, are searched by staff; sometimes
a juvenile returns to Marsh independently, sometimes with the help of local police.
Marsh’s residents, like any juveniles, are not permitted to run away.
{¶ 34} The doors to Marsh’s buildings are locked to prevent people from coming
in, but there are no locks preventing juveniles from going out, nor are the interior doors
locked from persons exiting the rooms.
11. {¶ 35} Marsh residents are permitted to leave the property to participate in
outings, including going to activities with their families and loved ones. Residents can
also earn the privilege to go uptown and into the community with greater freedom of
movement.
Further Arguments by the State
{¶ 36} The state asserts that Marsh does not contain a lock-up or a cell for
residents, nor does it have fencing or doors that keep the juveniles locked in, to protect
the outside community. The state contends Marsh is no different from any school, group
home or treatment facility where juveniles may reside, other than Marsh residents are
under the supervision of staff, and if the residents leave the Marsh property, they are
returned to Marsh. The state maintains “[t]here is not such a difference beyond the
restrictions placed on many juveniles’ lives so as to constitute ‘confinement’ as the
legislature intended, or, indeed, as this trial court understood the facility, having
apparently visited and utilized the facility on multiple occasions with juveniles
previously.”
{¶ 37} The state asks that Marsh be recognized for what it holds itself out to be,
which is a treatment facility, not a locked, secured, DYS-alternative. The state also
requests a finding that the time A.U. spent at Marsh does not constitute confinement for
purposes of R.C. 2152.18(B).
12. Marse’s Additional Testimony
{¶ 38} In addition to the presentation of Marse’s testimony by A.U. and the state,
we take note of the following testimony.
{¶ 39} Marse has been Marsh’s program manager for seven years. Marsh has a
total of 30 beds for juvenile residents in three of the homes on the property. Treatment at
Marsh can be court-ordered as a condition of a juvenile’s probation or parole. Marsh’s
website for the juvenile sex offender program does not contain the words secure or
locked.
{¶ 40} Marse has “never worked in a secured facility,” so he did not “know the
parameters that would identify something or what would qualify something as a secured
facility. Other than the obvious * * * such as, detention centers of something that had
physical barriers from them leaving.” He was not certain if Marsh is considered a DYS-
alternative.
{¶ 41} Marse is familiar with the security measures implemented by Marsh. There
are cameras in almost all rooms of the homes, except bedrooms and bathrooms. In the
home where A.U. resided, there are 22 cameras. Some of the windows in the homes have
blocks, as safety precautions.
{¶ 42} There are usually 30 to 40 juveniles serviced at Marsh during the day,
including residents and community clients, and there is, if possible, a ratio of two to three
juveniles to one staff member. Juveniles “are outside quite a bit. They play * * *
13. basketball or any kind of outdoor activity, walking or running, and * * * they have a gym,
they have a weight room. They have plenty of opportunity to be outside playing.”
{¶ 43} Marsh staff would not physically restrain a juvenile who wants to leave, as
Marsh residents “have the option and opportunity to just simply walk out of the building
and potentially off campus if they wish.” If a Marsh resident “leaves the group home,”
Marsh has “protocols in place to help with getting them back on campus and reintegrated
into the program.” If “there’s a threat or an assumption that a youth is leaving, whether
habit of theirs [sic] or if they [sic] have * * * a history of leaving placements, we call the
police immediately and we keep them [sic] in eyesight.” If a resident leaves without
permission Marsh will not always terminate that resident.
{¶ 44} During violent situations with juveniles, Marsh staff is “not like police * *
* where the expectation is to go one step above the behavior.” Marsh staff “match the
behavior to limit [a juvenile’s] range of motion to others.”
{¶ 45} Concerning a juvenile’s freedom of movement while living at Marsh, “[a]t
any time the youth is with a group activity there [sic] in eye sight of a staff member with
the exception of simple privileges they [sic] may receive as far as maybe going to the
next aisle in a grocery store and things like that.” If “a youth gets on a much higher level
[i.e., is a low risk] they [sic] do have the opportunity to engage in the community by
either walking uptown * * * where they [sic] can go to the gas station or to the library,
which is a little over a mile away.” A Marsh staff member will conduct a check and
14. “drive the van and just make sure the juvenile is where they [sic] should be.” Also,
“when a youth is deemed safe they [sic] can go * * * off campus [for] home visits with *
* family or loved ones or things like that.”
Analysis
{¶ 46} Upon review, we have considered the A.U.’s juvenile court record,
including the transcript of the Hearing on his motion for recalculation of confinement
credit and the juvenile court’s December 16, 2022 judgment entry, as well as the relevant
law, including R.C. 2152.18(B), the definition of confinement set forth in Napier, and the
two-prong analysis set forth in In re D.P. That analysis will be applied to the evidence
presented in A.U.’s case in order to determine if the juvenile court abused its discretion
by finding that Marsh is not a secure facility and A.U.’s time there was not considered
confinement.
First Prong - Nature of the Marsh Facility
{¶ 47} In order to ascertain whether or not Marsh is a secure facility with
measures sufficient to ensure the safety of the surrounding community, the nature of the
facility must be examined.
{¶ 48} The evidence shows Marsh is in a rural setting, at least one quarter of a
mile away from the closest town. There is no fencing around Marsh’s property, the
buildings’ doors have no locks to prevent juveniles from leaving, the windows do not all
15. have locks or blocks, the doors or windows have no alarms, and there is no lockup cell
for juveniles.
{¶ 49} Marsh’s program manager testified that he has never worked at a secure
facility. Marsh’s focus is not on punishment or security, its focus is on behavioral
treatment and clinical services for juveniles in a family-oriented setting. The words
secure or locked are not used in Marsh’s website for the juvenile sex offender program.
{¶ 50} The Marsh staff member to juvenile ratio is one to two or three. Staff
members do not carry weapons. Staff eyeball the juveniles during the day, and overnight
a staff member alarms the floors and is required by law to conduct six bed checks of the
residents. Marsh’s cameras run 24-hours a day; there is no evidence the cameras are
monitored during the day. At night, the staff member monitors the cameras if notified
that a juvenile has to leave the bedroom to use the restroom or get a glass of water. If a
juvenile wants to leave Marsh, staff cannot physically intervene to stop the juvenile.
When a juvenile does leave, staff watch the juvenile until the juvenile returns, on his own
or by the police.
Findings
{¶ 51} Considering the foregoing as well as all of the evidence presented at the
Hearing and the relevant law, we find the restrictive measures in place at Marsh are not
sufficient to ensure the safety of the surrounding community. Marsh’s focus is on
treatment, not security, and its property is not surrounded by a fence, although juveniles
16. have plenty of opportunities to be outside to play. The doors to the buildings are locked
on the outside only, not all windows have blocks, and there are no alarms on doors or
windows. During the day, there are no barriers preventing juveniles from leaving
Marsh’s buildings or property. Staff use eyesight supervision to monitor juveniles
throughout the day, but staff cannot not stop juveniles from leaving the Marsh facility.
Second Prong - Personal Liberties of the Juveniles
{¶ 52} In order to determine whether juveniles at Marsh can come and go as they
wish, or if they are subject to staff control regarding personal liberties, the nature of the
restrictions on the juveniles must be examined.
{¶ 53} The evidence shows Marsh has restrictions while juveniles move around
the buildings as the doors are locked, so a key fob or a call button must be used to enter
the rooms. To exit the rooms, no fob or call button is needed, as the doors are not locked
to keep juveniles in the rooms. In addition, juveniles are escorted by staff or in eyesight
of staff when going from one place to another on Marsh’s grounds, and staff constantly
count residents to make sure juveniles are accounted for, safe, and where they are
supposed to be.
{¶ 54} For required activities which juveniles have off-sight, Marsh maintains
strict protocols such that juveniles must be escorted by legal guardians or staff to and
from these activities.
17. Findings
{¶ 55} We find that juveniles at Marsh have restrictions, which for the most part,
are not unlike the rules that juveniles are required to follow at school, and should be
following at home. Indeed, Marse testified that Marsh provides a home-like setting for
juveniles. While the juveniles at Marsh are not authorized to come and go as they wish
and are not allowed to run away, there are no barriers during the day which prevent
juveniles from leaving the Marsh property without permission. Moreover, juveniles who
decide to leave the premises will not always be terminated from the Marsh program.
{¶ 56} We further find the restrictions on the juveniles at Marsh are not so
stringent as to constitute confinement under R.C. 2152.18(B). Marsh has rules which
residents are expected to follow, yet if a juvenile wishes to leave Marsh’s property, staff
members exert no control and have no means of thwarting the juvenile’s departure.
Conclusions
{¶ 57} The undisputed evidence is that Marsh provides residential treatment for
juveniles in a family-oriented setting, focused on behavioral treatment, not punishment or
security.
{¶ 58} We conclude Marsh is not a secure facility, as its lack of barriers and
restrictive measures that do not ensure the safety of the surrounding community, as
juveniles’ liberties are not controlled to the extent that they cannot leave Marsh’s
premises when they please, which poses a potential threat to the community at large.
18. {¶ 59} We further conclude that A.U. was not confined, pursuant to R.C.
2152.18(B), during the time that he spent at Marsh. Therefore, the juvenile court did not
abuse its discretion when it determined that A.U. should not receive credit for
confinement for the time he spent at Marsh, as it is not a secure facility and does not
constitute confinement under R.C. 2152.18(B). Accordingly, A.U.’s sole assignment of
error is not well-taken, and we affirm the trial court’s judgment. A.U. is ordered to pay
the costs of this appeal, pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Christine E. Mayle, J. ____________________________ JUDGE Gene A. Zmuda, J. ____________________________ Myron C. Duhart, P.J. JUDGE CONCUR. ____________________________ JUDGE
This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.
19.