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H. B. No. 235 As IntroducedAs Introduced
128th General Assembly | Regular Session | 2009-2010 |
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Cosponsors:
Representatives Domenick, Foley, Murray, Harris, Hagan, Williams, S., Newcomb, Boyd, Letson
A BILL
To amend sections 2151.23, 2151.31, 2151.314,
2152.02, 2152.021,
2152.10, 2152.12, 2152.13,
2152.14,
2152.17, 2152.22, 5139.01, 5139.05,
5139.06,
5139.20, and 5139.51 and to repeal
section 2152.11 of the Revised Code regarding
the
transfer for criminal prosecution of an
alleged
delinquent child, the eligibility for
imposition
of a serious youthful offender
dispositional
sentence, the commitment of a
delinquent child to
the Department of Youth
Services based on a
firearm specification or
certain aggravated
vehicular homicide
specifications, and the
granting of a judicial
release to a delinquent
child.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 2151.23, 2151.31, 2151.314, 2152.02,
2152.021, 2152.10, 2152.12, 2152.13, 2152.14, 2152.17, 2152.22,
5139.01,
5139.05, 5139.06, 5139.20, and 5139.51 of the Revised
Code be
amended to read as follows:
Sec. 2151.23. (A) The juvenile court has exclusive
original
jurisdiction under the Revised Code as follows:
(1) Concerning any child who on or about the date
specified
in the complaint, indictment, or information is alleged to have
violated section 2151.87 of the Revised Code or an order issued
under that section or to be a juvenile traffic
offender or a
delinquent, unruly, abused, neglected, or
dependent child
and,
based on and in relation to the allegation pertaining to the
child,
concerning the parent, guardian, or other person having
care
of a child who is alleged to be an unruly or delinquent child
for being an
habitual or chronic
truant;
(2) Subject to divisions (G) and (V) of section 2301.03 of
the
Revised Code, to
determine the custody of any child not a ward
of
another court of this state;
(3) To hear and determine any application for a writ of
habeas corpus involving the custody of a child;
(4) To exercise the powers and jurisdiction given the
probate
division of the court of common pleas in Chapter 5122.
of
the
Revised Code, if the court has probable cause to believe
that
a
child otherwise within the jurisdiction of the court is a
mentally
ill person subject to hospitalization by court order, as
defined
in section 5122.01 of the Revised Code;
(5) To hear and determine all criminal cases charging
adults
with the violation of any section of this chapter;
(6) To hear and determine all criminal cases in which an
adult is charged with a violation of division (C) of section
2919.21, division (B)(1) of section 2919.22, section 2919.222,
division (B) of
section 2919.23, or section 2919.24 of the Revised
Code, provided
the charge is not included in an indictment that
also charges the
alleged adult offender with the commission of a
felony arising
out of the same actions that are the basis of the
alleged
violation of division (C) of section 2919.21, division
(B)(1) of
section 2919.22, section 2919.222, division (B) of
section
2919.23, or section
2919.24 of the Revised Code;
(7) Under the interstate compact on juveniles in section
2151.56 of the Revised Code;
(8) Concerning any child who is to be taken into custody
pursuant to section 2151.31 of the Revised Code, upon being
notified of the intent to take the child into custody and the
reasons for taking the child into custody;
(9) To hear and determine requests for the extension of
temporary custody agreements, and requests for court approval of
permanent custody agreements, that are filed pursuant to section
5103.15 of the Revised Code;
(10) To hear and determine applications for consent to
marry
pursuant to section 3101.04 of the Revised Code;
(11) Subject to divisions (G) and (V) of section 2301.03 of
the
Revised Code, to hear
and determine a request for an order for
the
support of any child if the request is not ancillary to an
action
for divorce, dissolution of marriage, annulment, or legal
separation, a criminal or civil action involving an allegation of
domestic violence, or an action for support brought under Chapter
3115. of the Revised Code;
(12) Concerning an action commenced under section 121.38 of
the Revised
Code;
(13) To hear and determine violations of section 3321.38
of
the Revised Code;
(14) To exercise
jurisdiction and authority over the
parent,
guardian, or other person having care of a child alleged
to be a
delinquent child, unruly child, or juvenile traffic
offender,
based on and in relation to the allegation pertaining to
the
child;
(15) To conduct the hearings, and to make the determinations,
adjudications, and orders authorized or required under sections
2152.82 to 2152.86 and Chapter 2950. of the Revised Code regarding
a
child who has been adjudicated a delinquent child and to refer
the duties conferred upon the juvenile court judge under sections
2152.82 to 2152.86 and Chapter 2950. of the Revised Code to
magistrates appointed by the juvenile court judge in accordance
with Juvenile Rule 40.
(B) Except as provided in divisions (G) and (I) of section
2301.03 of
the Revised
Code, the juvenile court has original
jurisdiction
under the
Revised Code:
(1) To hear and determine all cases of misdemeanors
charging
adults with any act or omission with respect to any
child, which
act or omission is a violation of any state law or
any municipal
ordinance;
(2) To determine the paternity of any child alleged to
have
been born out of wedlock pursuant to sections 3111.01 to 3111.18
of the
Revised Code;
(3) Under the uniform interstate family support
act in
Chapter 3115. of the Revised Code;
(4) To hear and determine an application for an order for
the
support of any child, if the child is not a ward of another
court
of this state;
(5) To hear and determine an action commenced under section
3111.28
of the Revised Code;
(6) To hear and determine a motion filed under section
3119.961 of the Revised Code;
(7) To receive filings under section 3109.74 of the Revised
Code, and to hear and determine actions arising under sections
3109.51 to 3109.80 of the Revised Code.
(8)
To enforce an order for the return of a child made under
the Hague Convention on the Civil Aspects of International Child
Abduction pursuant to section 3127.32 of the Revised Code;
(9) To grant any relief normally available under the laws of
this state to enforce a child custody determination made by a
court of another state and registered in accordance with section
3127.35 of the Revised Code.
(C) The juvenile court, except as to juvenile courts that
are
a separate division of the court of common pleas or a
separate
and
independent juvenile court, has jurisdiction to
hear,
determine,
and make a record of any action for divorce or
legal
separation
that involves the custody or care of children
and that
is filed in
the court of common pleas and certified by
the court
of common
pleas with all the papers filed in the action
to the
juvenile
court for trial, provided that no certification of
that
nature
shall
be made to any juvenile court unless the consent of
the
juvenile judge
first is obtained. After a certification of
that
nature is made
and consent is
obtained, the juvenile court
shall
proceed as if the action originally had
been begun in that
court,
except as to awards for spousal support
or support due and
unpaid
at the time of certification, over
which the juvenile court
has no
jurisdiction.
(D) The juvenile court, except as provided in divisions (G)
and (I)
of section 2301.03
of the Revised Code, has jurisdiction
to hear
and
determine all matters as to custody and support of
children
duly
certified by the court of common pleas to the
juvenile court
after a divorce decree has been granted, including
jurisdiction
to
modify the judgment and decree of the court of
common pleas as
the
same relate to the custody and support of
children.
(E) The juvenile court, except as provided in divisions (G)
and (I)
of section 2301.03
of the Revised Code, has jurisdiction
to hear
and
determine the case of any child certified to the court
by any
court of competent jurisdiction if the child comes within
the
jurisdiction of the juvenile court as defined by this section.
(F)(1) The juvenile court shall exercise its jurisdiction
in
child custody matters in accordance with sections 3109.04 and
3127.01
to 3127.53 of the Revised Code and, as applicable,
sections 5103.20 to 5103.22 or 5103.23 to 5103.237 of the Revised
Code.
(2) The juvenile court shall exercise its jurisdiction in
child support matters in accordance with section 3109.05 of the
Revised Code.
(G) Any
juvenile court that
makes or modifies an order for
child support
shall comply with
Chapters 3119., 3121., 3123., and
3125. of the Revised Code. If any person
required to pay
child
support under an order made by a juvenile
court on or after
April
15, 1985, or modified on or after December
1, 1986, is
found in
contempt of court for failure to make support
payments
under the
order, the court that makes the finding, in
addition to
any other
penalty or remedy imposed, shall assess all
court costs
arising
out of the contempt proceeding against the
person and
require the
person to pay any reasonable attorney's
fees of any
adverse party,
as determined by the court, that arose
in relation
to the act of
contempt.
(H) If a child who is charged with an act that would be an
a
felony offense of violence if committed by an adult was fourteen
years of age or
older and under
eighteen years of age at the time
of the alleged
act and if the case is
transferred for criminal
prosecution
pursuant to division (A)(1) of section 2152.12 of the
Revised Code or if a complaint is filed against a person and the
case is transferred for criminal prosecution pursuant to division
(A)(2) of that section in the circumstances described in division
(C)(5) of section 2152.02 of the Revised Code, the
juvenile
court
does not have jurisdiction to hear or
determine the case
subsequent to the transfer. The court to which the
case is
transferred for criminal prosecution pursuant to that
section
2152.12 of the Revised Code has
jurisdiction subsequent to the
transfer to hear and
determine the
case in the same manner as if
the case originally
had been
commenced in that court, including,
but not limited to,
jurisdiction to accept a plea of guilty or
another plea
authorized
by Criminal Rule 11 or another section
of
the Revised Code and
jurisdiction to accept a
verdict and to enter
a judgment of
conviction pursuant to the
Rules of Criminal
Procedure against the
child for the commission of the offense that
was the basis of the
transfer of the case for criminal
prosecution, whether the
conviction is for the same degree or a
lesser degree of the
offense charged, for the commission of a
lesser-included offense,
or for the commission of another offense
that is different from
the offense charged.
(I) If a person under eighteen
years of age allegedly
commits
an act that would be a felony if committed by
an adult and
if the
person is not taken into custody or apprehended for that
act until
after the person attains twenty-one years of age, the
juvenile
court
does not have jurisdiction to hear or determine any
portion
of the case
charging the person with committing that act.
In those
circumstances,
divisions division (A) and (B) of section 2152.12
of the
Revised Code do does not apply regarding the act, and the
case
charging
the person with committing the act shall be a
criminal
prosecution
commenced and heard in the appropriate court
having
jurisdiction
of the
offense as if the person had been
eighteen
years of age or
older when the
person committed the act.
All
proceedings
pertaining to the act shall be
within the
jurisdiction
of the
court having jurisdiction of the offense, and
that court
has all
the authority and
duties
in the case that it
has in other
criminal
cases in
that court.
Sec. 2151.31. (A) A child may be taken into custody in
any
of the following ways:
(1) Pursuant to an order of the court under this chapter or
pursuant to an
order of the court upon a motion filed pursuant to
division (B) of section
2930.05 of the Revised Code;
(2) Pursuant to the laws of arrest;
(3) By a law enforcement officer or duly authorized
officer
of the court when any of the following conditions are
present:
(a) There are reasonable grounds to believe that the child
is
suffering from illness or injury and is not receiving proper
care,
as described in section 2151.03 of the Revised Code, and
the
child's removal is necessary to prevent immediate or
threatened
physical or emotional harm;
(b) There are reasonable grounds to believe that the child
is
in immediate danger from the child's surroundings and
that the
child's removal
is necessary to prevent immediate or threatened
physical or
emotional harm;
(c) There are reasonable grounds to believe that a parent,
guardian, custodian, or other household member of the child's
household has abused or neglected another child in the household
and to believe that the child is in danger of immediate or
threatened physical or emotional harm from that person.
(4) By an enforcement official, as defined in section
4109.01
of the Revised Code, under the circumstances set forth in
section
4109.08 of the Revised Code;
(5) By a law enforcement officer or duly authorized
officer
of the court when there are reasonable grounds to believe
that the
child has run away from the child's parents,
guardian, or other
custodian;
(6) By a law enforcement officer or duly authorized
officer
of the court when any of the following apply:
(a) There are reasonable grounds to believe that the
conduct,
conditions, or surroundings of the child are endangering
the
health, welfare, or safety of the child.
(b) A complaint has been filed with respect to the child
under section 2151.27 or 2152.021 of the Revised Code or
the child
has been indicted under division (A)(2) of section 2152.13
of the
Revised Code or charged by information as described in that
section and there are
reasonable grounds to believe that the child
may abscond or be
removed from the jurisdiction of the court.
(c) The child is required to appear in court and there are
reasonable grounds to believe that the child will not be brought
before the court when required.
(d) There are reasonable grounds to believe that the child
committed a delinquent act and that taking the child into custody
is necessary
to protect the public interest and safety.
(B)(1) The taking of a child into custody is not and shall
not be deemed an arrest except for the purpose of determining its
validity under the constitution of this state or of the United
States.
(2) Except as provided in division (C) of section 2151.311
of
the Revised Code, a child taken into custody shall not be held
in
any state correctional institution, county,
multicounty, or
municipal jail or workhouse, or any other place
where any adult
convicted of crime, under arrest, or charged with
crime is held.
(C)(1) Except as provided in division (C)(2)
of this
section,
a child taken into custody shall not be confined in a
place of
juvenile detention or placed in shelter care prior to
the
implementation of the court's final order of disposition,
unless
detention or shelter care is required to protect the
child from
immediate or threatened physical or emotional harm,
because the
child is a danger or threat to one or more other persons and is
charged with violating a section of the Revised Code that may be
violated by an adult,
because
the
child may abscond or be removed
from the jurisdiction
of the
court, because the child has no
parents, guardian, or
custodian or
other person able to provide
supervision and care
for the child
and return the child to the
court when required, or because an
order for placement of the
child in detention or shelter care has
been made by the court
pursuant to this chapter.
(2) A child alleged to be a delinquent child who is taken
into
custody may be confined in a place of juvenile detention
prior to the
implementation of the court's final order of
disposition if the confinement is
authorized under section 2152.04
of the Revised Code or if the child is alleged to be a
serious
youthful offender under section 2152.13 of the Revised Code and is
not released on
bond.
(D) Upon receipt of notice from a person that the person
intends to take an alleged abused, neglected, or dependent child
into custody pursuant to division (A)(3) of this section, a
juvenile judge or a designated referee may grant by telephone an
ex parte emergency order authorizing the taking of the child into
custody if there is probable cause to believe that any of the
conditions set forth in divisions (A)(3)(a) to (c) of this
section
are present. The judge or referee shall journalize any
ex parte
emergency order issued pursuant to this division. If an
order is
issued pursuant to this division and the child is taken
into
custody pursuant to the order, a sworn complaint shall be
filed
with respect to the child before the end of the next
business day
after the day on which the child is taken into
custody and a
hearing shall be held pursuant to division (E) of
this section and
the Juvenile Rules. A juvenile judge or referee
shall not grant
an
emergency order by telephone pursuant to this
division until
after
the judge or referee determines that
reasonable efforts have
been
made to notify the parents, guardian, or custodian of the
child
that the child may be placed into shelter care and of the
reasons
for placing the child into shelter care, except that, if
the
requirement for notification would jeopardize the physical or
emotional safety of the child or result in the child being
removed
from the court's jurisdiction, the judge or referee may
issue the
order for taking the child into custody and placing the
child into
shelter care prior to giving notice to the parents,
guardian, or
custodian of the child.
(E) If a judge or referee pursuant to division (D) of this
section issues an ex parte emergency order for taking a child
into
custody, the court shall hold a hearing to determine whether
there
is probable cause for the emergency order. The hearing
shall be
held before the end of the next business day after the
day on
which the emergency order is issued, except that it shall
not be
held later than seventy-two hours after the emergency
order is
issued.
If the court determines at the hearing that there is not
probable cause for the issuance of the emergency order issued
pursuant to division (D) of this section, it shall order the
child
released to the custody of the child's parents,
guardian, or
custodian. If the court determines at the hearing that there is
probable cause for the issuance of the emergency order issued
pursuant to division (D) of this section, the court shall do
all
of the following:
(1) Ensure that a complaint is filed or has been filed;
(2) Comply with section 2151.419 of the Revised Code;
(3) Hold a hearing pursuant to section 2151.314 of the
Revised Code to determine if the child should remain in shelter
care.
(F) If the court determines at the hearing held pursuant
to
division (E) of this section that there is probable cause to
believe that the child is an abused child, as defined in division
(A) of section 2151.031 of the Revised Code, the court may do any
of the following:
(1) Upon the motion of any party, the guardian ad litem,
the
prosecuting attorney, or an employee of the public children
services
agency, or its own motion, issue
reasonable
protective
orders with respect to the interviewing or deposition
of the
child;
(2) Order that the child's testimony be videotaped for
preservation of the testimony for possible use in any other
proceedings in the case;
(3) Set any additional conditions with respect to the
child
or the case involving the child that are in the best
interest of
the child.
(G) This section is not intended, and shall not be
construed,
to prevent any person from taking a child into
custody,
if taking
the child into custody is necessary in an
emergency to
prevent the
physical injury, emotional harm, or
neglect of the
child.
Sec. 2151.314. (A) When a child is brought before the
court
or delivered to a place of detention or shelter care
designated by
the court, the intake or other authorized officer
of the court
shall immediately make an investigation and shall
release the
child unless it appears that the child's detention or
shelter care
is warranted or required under section 2151.31 of the
Revised
Code.
If the child is not so released, a complaint under section
2151.27 or
2152.021 or an information under section 2152.13
of the
Revised Code shall be filed or an indictment under division
(B)
of
section 2152.13 of the Revised Code shall be sought and an
informal
detention or
shelter care hearing held promptly, not
later than seventy-two
hours after the child is placed in
detention or shelter care, to
determine whether detention or
shelter care is required. Reasonable oral or
written notice of
the
time, place, and purpose
of the detention or shelter care
hearing
shall be given to the
child and, if they can be found, to
the
child's parents, guardian,
or custodian. In cases in which
the
complaint alleges a child to
be an abused, neglected, or
dependent
child, the notice given the parents,
guardian, or
custodian shall
inform them that a case plan may be prepared
for
the child, the
general requirements usually contained in case
plans, and
the
possible consequences of the failure to comply with
a journalized
case
plan.
Prior to the hearing, the court shall inform the
parties of
their right to counsel and to appointed counsel or to
the services
of the county public defender or joint county public
defender, if
they are indigent, of the child's right to remain
silent with
respect to any allegation of delinquency, and of the
name and
telephone number of a court employee who can be
contacted during
the normal business hours of the court to
arrange for the prompt
appointment of counsel for any party who
is indigent. Unless it
appears from the hearing that the child's
detention or shelter
care is required under the provisions of
section 2151.31 of the
Revised Code, the court shall order the child's
release as
provided by section 2151.311 of the Revised Code. If
a parent,
guardian, or custodian has not been so notified and did
not appear
or waive appearance at the hearing, upon the filing of
an
affidavit stating these facts, the court shall rehear the
matter
without unnecessary delay.
(B) When the court conducts a hearing pursuant to division
(A) of this section, all of the following apply:
(1) The court shall determine whether an alleged abused,
neglected, or dependent child should remain or be placed in
shelter care;
(2) The court shall determine whether there are any
relatives
of the child who are willing to be temporary
custodians
of the
child. If any relative is willing to be a
temporary
custodian, the
child would otherwise be placed or
retained in
shelter care, and
the appointment is appropriate, the
court shall
appoint the
relative as temporary custodian of the
child, unless
the court
appoints another relative as temporary
custodian. If it
determines
that the appointment of a relative
as custodian would
not be
appropriate, it shall issue a written
opinion setting forth
the
reasons for its determination and give
a copy of the opinion
to
all parties and to the guardian ad litem
of the child.
The court's consideration of a relative for appointment as
a
temporary custodian does not make that relative a party to the
proceedings.
(3) The court shall comply with section 2151.419 of the
Revised Code.
(C) If a child is in shelter care following the filing of
a
complaint pursuant to section 2151.27 or 2152.021 of the
Revised
Code, the filing of an information, or the obtaining of an
indictment or
following a hearing held pursuant to division (A) of
this
section, any party, including the public children services
agency, and the guardian ad litem of the child may
file a motion
with the court requesting that the child be
released from shelter
care. The motion shall state the reasons
why the child should be
released from shelter care and, if a
hearing has been held
pursuant to division (A) of this section,
any changes in the
situation of the child or the parents,
guardian, or custodian of
the child that have occurred since that
hearing and that justify
the release of the child from shelter
care. Upon the filing of
the
motion, the court shall hold a
hearing in the same manner as
under
division (A) of this section.
(D) Each juvenile court shall designate at least one court
employee
to assist persons who are indigent in obtaining appointed
counsel. The court shall include in each notice given pursuant
to
division (A) or (C) of this section and in each summons served
upon a party pursuant to this chapter, the name and telephone
number at which each designated employee can be contacted
during
the normal business hours of the court to arrange for prompt
appointment of counsel for indigent persons.
Sec. 2152.02. As used in this chapter:
(A) "Act charged" means the act that is identified in a
complaint,
indictment, or information alleging that a child is a
delinquent child.
(B) "Admitted to a department of youth services facility"
includes admission to a facility operated, or contracted for, by
the
department and admission to a comparable facility outside
this
state by another state or the United States.
(C)(1) "Child" means a person who is under eighteen years of
age,
except as otherwise provided in divisions (C)(2) to (6) of
this
section.
(2) Subject to division (C)(3) of this section, any person
who
violates a federal or state law or a municipal ordinance prior
to
attaining eighteen years of age shall be deemed a "child"
irrespective of that person's age at the time the complaint with
respect to that violation is filed or the hearing on the complaint
is held.
(3) Any person who, while under eighteen years of age,
commits an
act that would be a felony if committed by an adult and
who is not taken
into custody or apprehended for that act until
after the person attains
twenty-one years of age is not a child in
relation to that act.
(4) Any person whose case is transferred for criminal
prosecution
pursuant to section 2152.12 of the Revised Code shall
be deemed
after the transfer not to be a child in the transferred
case.
(5) Any person whose case is transferred for criminal
prosecution
pursuant to section 2152.12 of the Revised Code and
who
subsequently is convicted of or pleads guilty to a felony in
that case,
and any person who is
adjudicated a delinquent child
for the commission of an act, who has a serious
youthful offender
dispositional sentence imposed for the act pursuant to section
2152.13 of the Revised Code,
and whose adult portion of the
dispositional sentence is invoked pursuant to section 2152.14 of
the Revised Code,
shall
be deemed after the transfer or invocation
not to be a child in any case in
which a complaint is filed
against the person.
(6) The juvenile court has jurisdiction over a person who is
adjudicated a delinquent child or juvenile traffic offender prior
to
attaining eighteen years of age until the person attains
twenty-one
years of age, and, for purposes of that jurisdiction
related to
that adjudication,
except as otherwise provided in this
division, a person who is so adjudicated a
delinquent
child or
juvenile traffic offender shall be deemed a
"child" until
the
person attains twenty-one years of age.
If a person is so
adjudicated a delinquent child or juvenile traffic offender and
the court makes a disposition of the person under this chapter, at
any time after the person attains eighteen years of age, the
places at which the person may be held under that disposition are
not limited to places authorized under this chapter solely for
confinement of children, and the person may be confined under that
disposition, in accordance with division (F)(2) of section 2152.26
of the Revised Code, in places other than those authorized under
this chapter solely for confinement of children.
(D) "Chronic truant" means any child of compulsory school
age
who
is absent without legitimate excuse for absence from the
public school the
child is supposed to attend for seven or more
consecutive school days, ten or
more school days in one school
month, or fifteen or more school days in a
school
year.
(E) "Community corrections facility," "public safety beds,"
"release authority," and "supervised release" have the same
meanings as
in section 5139.01 of the Revised Code.
(F) "Delinquent child" includes any of the following:
(1) Any child, except a juvenile traffic offender, who
violates
any law of this state or the United States, or any
ordinance
of a
political subdivision of the state, that would be
an offense if committed
by an adult;
(2) Any child who violates any lawful order of the court
made
under this chapter or under Chapter 2151. of the Revised
Code
other than an order issued under section 2151.87 of the Revised
Code;
(3) Any child who violates division (C) of section 2907.39,
division (A) of section 2923.211, or division (C)(1) or (D) of
section 2925.55
of the Revised Code;
(4) Any child who is a habitual truant and who previously
has
been
adjudicated an unruly child for being a habitual truant;
(5) Any child who is a chronic truant.
(G) "Discretionary serious youthful
offender" means a person
who is eligible for a discretionary SYO
and who is not transferred
to adult court under a mandatory or
discretionary transfer.
(H) "Discretionary SYO "Serious youthful offender
disposition" means a case
in which the juvenile
court, in the
juvenile court's discretion, may
impose a
serious
youthful
offender disposition
dispositional sentence under section 2152.13
of the Revised
Code.
(I) "Discretionary transfer" means that the juvenile court
has
discretion to transfer a case for criminal prosecution under
division
(B) of section 2152.12 of the Revised Code.
(J)(H) "Drug abuse offense," "felony drug abuse offense," and
"minor
drug possession offense" have the same meanings as in
section 2925.01 of
the Revised Code.
(K)(I) "Electronic monitoring" and "electronic monitoring
device" have the same meanings as in section 2929.01 of
the
Revised Code.
(L)(J) "Economic loss" means any economic detriment suffered
by
a
victim of a delinquent act or juvenile traffic offense as a
direct and proximate result of the delinquent act or juvenile
traffic offense and
includes any loss of income due to lost time
at work because of
any injury caused to the victim and any
property loss, medical
cost, or funeral expense incurred as a
result of the delinquent
act or juvenile traffic offense.
"Economic loss" does not include non-economic loss or any punitive
or exemplary damages.
(M)(K) "Firearm" has the same meaning as in section 2923.11
of
the
Revised Code.
(N)(L) "Juvenile traffic offender" means any child who
violates
any
traffic law, traffic ordinance, or traffic regulation
of this
state, the
United States, or any political subdivision of
this
state,
other than a resolution, ordinance, or regulation of a
political subdivision
of this state the violation of which is
required
to be handled by a parking violations bureau or a joint
parking
violations bureau pursuant to Chapter 4521. of the Revised
Code.
(O)(M) A "legitimate excuse for absence from the public
school
the
child is supposed to attend" has the same meaning as in
section 2151.011 of the Revised Code.
(P) "Mandatory serious
youthful offender" means a person who
is eligible for a mandatory
SYO and who is not transferred to
adult court
under a mandatory or discretionary transfer.
(Q)
"Mandatory SYO" means a case in which the juvenile court
is
required to impose a mandatory serious youthful offender
disposition under
section 2152.13 of
the Revised Code.
(R) "Mandatory transfer" means that a case is required to be
transferred for criminal prosecution under division (A) of section
2152.12 of the Revised Code.
(S)(N) "Mental illness" has the same meaning as in section
5122.01
of the Revised Code.
(T)(O) "Mentally retarded person" has the same meaning as in
section
5123.01 of the Revised Code.
(U)(P) "Monitored time" and "repeat violent offender" have
the
same
meanings as in section 2929.01 of the Revised Code.
(V)(Q) "Of compulsory school age" has the same meaning as in
section
3321.01 of the Revised Code.
(W)(R) "Public record" has the same meaning as in section
149.43
of
the Revised Code.
(X)(S) "Serious youthful
offender" means a person who is
eligible for a mandatory SYO or
discretionary SYO serious youthful
offender disposition but who is not
transferred to adult court
under
a mandatory or discretionary
transfer section 2152.12 of the
Revised Code.
(Y)(T) "Sexually oriented offense,"
"juvenile offender
registrant," "child-victim
oriented offense," "tier I sex
offender/child-victim
offender," "tier II sex
offender/child-victim offender," "tier III
sex
offender/child-victim offender," and "public
registry-qualified
juvenile offender registrant" have the
same
meanings as in
section
2950.01 of
the Revised Code.
(Z)(U) "Traditional juvenile disposition" means a case that
is not
transferred to adult court under a mandatory or
discretionary
transfer,
that is
eligible for
a disposition under
sections
2152.16, 2152.17,
2152.19, and 2152.20 of the Revised
Code, and in a case
that is not
eligible
for a disposition
transferred to adult court under
section 2152.13 2152.12 of
the
Revised
Code.
(AA)(V) "Transfer" means the transfer for criminal
prosecution
of a
case involving the alleged commission by a child
of an act
that
would be an a felony offense of violence if
committed by an adult from the
juvenile
court to the appropriate
court that has jurisdiction of
the
offense or the transfer for
criminal prosecution of a case when the person charged with the
offense is deemed not to be a child in the circumstances described
in division (C)(5) of section 2152.02 of the Revised Code from the
juvenile court to the appropriate court that has jurisdiction of
the offense in the case.
(BB) "Category one offense" means any of the following:
(1) A violation of section 2903.01 or 2903.02 of the Revised
Code;
(2) A violation of section 2923.02 of the Revised Code
involving
an attempt to commit aggravated murder or murder.
(CC) "Category two offense" means any of the following:
(1) A violation of section 2903.03, 2905.01, 2907.02,
2909.02,
2911.01, or 2911.11 of the Revised Code;
(2) A violation of section 2903.04 of the Revised Code
that
is a
felony of the first degree;
(3) A violation of section 2907.12 of the Revised Code
as it
existed prior to September 3, 1996.
(DD)(W) "Non-economic loss" means nonpecuniary harm suffered
by
a victim of a delinquent act or juvenile traffic offense as a
result of or related to the delinquent act or juvenile traffic
offense, including, but not limited to, pain and suffering; loss
of society, consortium, companionship, care, assistance,
attention, protection, advice, guidance, counsel, instruction,
training, or education; mental anguish; and any other intangible
loss.
Sec. 2152.021. (A)(1) Subject to division (A)(2) of
this
section, any person having knowledge of a child who
appears to be
a juvenile traffic offender or to be a delinquent
child may file a
sworn complaint with respect to that child in the juvenile
court
of the county in which the child has a residence or legal
settlement or
in which the traffic offense or delinquent act
allegedly occurred. The sworn
complaint may be upon information
and belief, and, in addition to
the allegation that the child is a
delinquent child or a juvenile
traffic offender, the complaint
shall allege the particular facts
upon which the allegation that
the child is a delinquent child or
a juvenile traffic offender is
based.
If a child appears to be a delinquent child who is eligible
under section 2152.13 of the Revised Code for a
serious youthful
offender dispositional sentence under
section 2152.11
of the
Revised Code disposition and if the prosecuting
attorney
desires
to
seek a serious youthful offender dispositional
sentence under
that
section 2152.13
of the
Revised Code in regard to
the
child,
the
prosecuting attorney of the county in
which the
alleged
delinquency occurs may initiate a case in the juvenile
court of
the county by presenting the case to a grand jury for
indictment,
by charging the child
in a bill of information as a
serious
youthful offender
pursuant to section 2152.13 of the
Revised
Code,
by requesting a serious
youthful offender
dispositional sentence
in the original complaint alleging
that the
child is a
delinquent
child, or by filing with the juvenile court
a written notice of
intent to seek a serious
youthful offender
dispositional sentence.
(2) Any person having knowledge of a child who appears to be
a
delinquent child for being an habitual or chronic truant may
file a sworn
complaint with respect to
that child and the parent,
guardian, or other person having care
of the child in the juvenile
court of the county in which the
child has a residence or legal
settlement or in which the child is
supposed to attend public
school. The sworn complaint may be upon
information and belief and
shall contain the following
allegations:
(a) That the child is a delinquent child for being a chronic
truant or an habitual truant who previously has been adjudicated
an unruly
child for being a habitual
truant and, in addition, the
particular facts upon which that
allegation is based;
(b) That the parent, guardian, or other person having care of
the
child has failed to cause the child's attendance at school in
violation
of section 3321.38 of the Revised Code and, in addition,
the particular facts upon which that allegation is based.
(B) Any person with standing under applicable law may file a
complaint for the determination of any other matter over which the
juvenile
court is given jurisdiction by section 2151.23 of
the
Revised Code. The complaint shall be filed in the
county in
which
the child who is the subject of the complaint is found or was last
known to be found.
(C) Within ten days after the filing of a complaint or the
issuance of an indictment, the court
shall give written notice of
the filing of the complaint or the issuance of an
indictment and
of the substance of the complaint or indictment to the
superintendent of a city,
local, exempted village, or joint
vocational school district if
the complaint or indictment alleges
that a child committed an act that would
be
a criminal offense if
committed by an adult, that the child was
sixteen years of age or
older at the time of the commission of the
alleged act, and that
the alleged act is any of the following:
(1) A violation of section 2923.122 of the Revised Code
that
relates to property owned or controlled by, or to an activity held
under
the auspices of, the board of education of that school
district;
(2) A violation of section 2923.12 of the Revised Code,
of a
substantially similar municipal ordinance, or of section 2925.03
of the
Revised Code that was committed on property owned or
controlled by, or at an activity held under the auspices of, the
board of
education of that school district;
(3) A violation of section 2925.11 of the Revised Code
that
was
committed on property owned or controlled by, or at an
activity held under the
auspices of, the board of education of
that school district, other than a
violation of that section that
would be a minor drug possession
offense if
committed by an adult;
(4) A violation of section 2903.01, 2903.02, 2903.03,
2903.04,
2903.11, 2903.12, 2907.02, or 2907.05 of the Revised
Code,
or a
violation of former section 2907.12 of the Revised
Code,
that was
committed on property owned or controlled by, or at
an activity held under the auspices of, the board of education of
that school
district, if the victim at the time of the commission
of the
alleged act was an employee of the board of education of
that
school district;
(5) Complicity in any violation described in division
(C)(1),
(2), (3), or (4) of this section that was alleged to have
been
committed
in the manner described in division (C)(1), (2),
(3), or
(4) of this section, regardless of whether the act of
complicity
was committed
on property
owned or controlled by, or at
an
activity held under the auspices of, the
board of education
of
that school district.
(D) A public children services agency, acting pursuant to a
complaint or an action on a complaint filed under this section, is
not
subject to the requirements of section 3127.23 of the
Revised
Code.
(E) For purposes of the record to be maintained by the clerk
under division (B) of section 2152.71 of the Revised
Code, when a
complaint is filed that alleges that a child is a delinquent
child, the court shall determine if the victim of the alleged
delinquent act was sixty-five years of age or older or permanently
and totally disabled at the time of the alleged commission of the
act.
Sec. 2152.10. (A) A child who is alleged to be a delinquent
child is eligible for mandatory transfer and shall be transferred
as provided
in section 2152.12 of
the Revised Code in any of the
following
circumstances:
(1) The child is charged with a category one offense and
either
of the following apply:
(a) The child was sixteen years of age or older at the time
of
the act charged.
(b) The child
was fourteen or fifteen years
of age at the
time of the act charged and
previously was adjudicated a
delinquent child for
committing an act that is a category one or
category two offense and was
committed to the legal
custody of the
department of youth services upon the basis of that
adjudication.
(2) The child is charged with a category two offense, other
than
a violation of section 2905.01 of the Revised Code, the child
was
sixteen years of age or older at the time of the commission of
the
act charged, and either or both of the following apply:
(a) The child previously was adjudicated a delinquent child
for
committing an act that is a category one or a category two
offense and was committed to the legal
custody of the department
of youth services on the basis of that
adjudication.
(b) The child is alleged to have had a firearm on or about
the
child's person or under the child's control while committing
the act charged and to have displayed the
firearm,
brandished the
firearm, indicated possession of the firearm, or used the firearm
to facilitate the commission of the act charged.
(3) Division (A)(2) of section 2152.12 of the Revised
Code
applies.
(B) Unless the child is subject to mandatory transfer, if a
child, who is fourteen years of age or older at the time of the
act
charged, and if the child who is charged with an act that
would be a
felony
offense of violence if committed by an adult,
the child is eligible for
discretionary
transfer to the
appropriate court for criminal
prosecution. In
determining whether
to transfer the child for
criminal
prosecution, the juvenile court
shall follow the
procedures in
section 2152.12 of the Revised
Code. If the court
does not
transfer the child and if the court
adjudicates the child
to be a delinquent
child for the act
charged, the court shall
issue an
order of disposition in
accordance with section 2152.11
of the
Revised Code this chapter.
(B) If a complaint is filed against a person who is deemed
not to be a child in the circumstances described in division
(C)(5) of section 2152.02 of the Revised Code, the person is
eligible for transfer, and the case shall be transferred to the
appropriate court for criminal prosecution.
Sec. 2152.12. (A)(1)(a) After a complaint has been filed
alleging that a
child
is a delinquent
child for committing an act
that would be
aggravated murder, murder, attempted aggravated
murder,
or attempted murder if committed by an adult,
the juvenile
court at a hearing shall transfer the
case if the child was
sixteen or seventeen
years of age at the time of the
act charged
and there is probable cause to believe that the
child committed
the act charged. The juvenile court also shall transfer
the case
at a hearing if the child was fourteen or
fifteen years of age at
the time of the act charged,
if section 2152.10 of the Revised
Code provides
that the child is eligible for mandatory
transfer,
and if there is probable cause to believe that the child committed
the act charged.
(b) After a complaint has been filed alleging that a child
is
a
delinquent child by reason of committing a category two
offense,
the juvenile
court at a hearing shall
transfer the case
if section
2152.10 of the Revised Code requires
the
mandatory
transfer of the
case and there is probable cause to believe that
the
child
committed the act charged.
(2) The juvenile court also shall transfer a case in the
circumstances
described in division (C)(5) of section 2152.02 of
the Revised Code or if either of the following applies:
(a) A complaint is filed against a child who is
eligible for
a discretionary transfer under section
2152.10 of the Revised Code
and who
previously was convicted of or
pleaded guilty to a felony
in a case that was
transferred to a criminal court.
(b) A complaint is filed against a child
who is domiciled in
another state alleging that the child is a
delinquent child for
committing an act that would be a felony if committed by
an adult,
and, if the act
charged had been committed in that other state,
the child would be
subject to criminal prosecution as an adult
under the law of that other state
without the need for a transfer
of
jurisdiction from a juvenile, family, or similar noncriminal
court to a
criminal court.
(B) Except as provided in division
(A) of
this section,
after
After a complaint has been filed alleging that a child is a
delinquent child
for committing an act that would be a felony
offense of violence if
committed by an adult,
the juvenile court
at a hearing may
transfer the case if the court finds all of the
following:
(1)(a) The child was fourteen years of age or older at the
time
of the act charged.
(2)(b) There is probable cause to believe that the child
committed the act charged.
(3)(c)
The child is not amenable to care or rehabilitation
within the
juvenile system, and the safety of the community may
require that the
child be subject to adult sanctions. In making
its decision
under this division, the court shall consider whether
the applicable factors under division (D)(C) of this
section
indicating that the case should be transferred outweigh the
applicable
factors under division (E)(D) of this section
indicating
that
the case should not be transferred.
The record
shall
indicate
the specific factors that were applicable and that
the
court
weighed.
(2) Independent of the authority to transfer a case under
division (A)(1) of this section, the juvenile court shall transfer
a case when the person charged is deemed not to be a child in the
circumstances described in division (C)(5) of section 2152.02 of
the Revised Code.
(C)(B) Before considering a transfer under division (B)(A)(1)
of
this
section, the juvenile court shall order an
investigation,
including a mental examination of the child by a
public or
private
agency or a person qualified to make the examination. The
child
may waive the examination required by this division if the
court
finds that the waiver
is competently and intelligently made.
Refusal to submit to a
mental examination by the child
constitutes
a waiver
of the examination.
(D)(C) In considering whether to
transfer a child under
division (B)(A)(1) of this
section, the juvenile court shall
consider
the following
relevant
factors, and any other relevant
factors, in
favor of a transfer under that
division:
(1) The victim of the act charged suffered physical or
psychological harm, or serious economic harm, as a result of the
alleged
act.
(2) The physical or psychological harm suffered by the
victim
due to
the alleged act of the child was exacerbated because
of the
physical or
psychological vulnerability or the age of the
victim.
(3) The child's relationship with the victim facilitated the
act
charged.
(4) The child allegedly committed the act charged for hire
or
as
a part of a gang or other organized criminal activity.
(5) The child had a firearm on or about the child's person
or
under the child's control at the time of the act
charged, the
act
charged is not a violation of section 2923.12 of the
Revised
Code,
and the child, during the commission of the
act charged,
allegedly
used or displayed
the firearm,
brandished the
firearm,
or
indicated that the child possessed a firearm.
(6) At the time of the act charged, the child
was awaiting
adjudication or disposition as a delinquent child, was under
a
community control sanction, or was on parole for a prior
delinquent child
adjudication or conviction.
(7) The results of any previous juvenile sanctions and
programs
indicate that rehabilitation of the child will not occur
in the
juvenile system.
(8) The child is emotionally, physically, or psychologically
mature enough for the transfer.
(9) There is not sufficient time to rehabilitate the child
within the juvenile system.
(E)(D) In considering whether to transfer a child under
division
(B)(A)(1) of this section, the juvenile court shall
consider
the following
relevant
factors, and any other relevant
factors,
against a transfer under that
division:
(1) The victim induced or facilitated the act charged.
(2) The child acted under provocation in allegedly
committing
the act
charged.
(3) The child was not the principal actor in the
act
charged,
or, at the time of the act charged, the child was under
the
negative influence or coercion
of another person.
(4) The child did not cause physical harm to any person or
property, or have reasonable cause to believe that harm of that
nature
would occur, in allegedly committing the act charged.
(5) The child previously has not been adjudicated a
delinquent
child.
(6) The child is not emotionally, physically, or
psychologically
mature enough for the transfer.
(7) The child has a mental illness or is a mentally retarded
person.
(8) There is sufficient time to rehabilitate the child
within
the
juvenile system and the level of security available in
the
juvenile
system provides a reasonable assurance of public
safety.
(F) If one or more complaints are filed alleging
that a
child
is a delinquent child for committing two or more acts that
would
be offenses if committed by an adult, if a motion is made
alleging
that division (A) of this section
applies
and
requires
that the
case or cases involving one or more of the acts charged
be
transferred for, and if a
motion also is made requesting that
the
case or cases
involving one
or more of the acts charged be
transferred pursuant to division
(B) of this section, the
juvenile
court, in
deciding the motions, shall proceed in the
following
manner:
(1) Initially, the court shall decide the motion alleging
that division (A) of this section
applies
and requires that the
case or cases involving one or more of
the acts charged be
transferred.
(2) If the court determines that
division (A) of this
section
applies
and
requires
that the
case or cases involving one
or more
of the acts charged be transferred, the court shall
transfer the
case or cases in accordance with
that division.
After the transfer
pursuant to
division (A) of this section, the
court
shall decide,
in accordance with division
(B) of this
section,
whether to grant
the motion requesting that the case or
cases involving one or
more
of the acts charged be transferred
pursuant to
that division.
Notwithstanding
division (B) of
this section, prior to
transferring a case pursuant to
division
(A) of this section,
the
court is not required to consider any
factor specified in division
(D) or (E) of this section or to
conduct an investigation under
division (C) of this section.
(3) If the court determines that division (A) of this
section
does not require that the case or cases involving
one or
more of
the
acts charged be
transferred, the court shall decide in
accordance with
division (B) of this section whether to
grant
the
motion requesting that the case or cases involving one or more
of
the acts charged be transferred
pursuant to that division.
(G)(E) The court shall give notice in writing of the time,
place, and purpose of
any hearing held pursuant to division (A)
or
(B)(1)
of this section
to the child's parents, guardian, or
other
custodian and
to the child's counsel at least three days
prior to
the
hearing.
(H)(F) No person, either before or after reaching eighteen
years of age, shall be prosecuted as an adult for an offense
committed prior to becoming eighteen years of age, unless the
person has been transferred as provided in division (A) or (B)(1)
of
this section or unless division (J)(H) of this section
applies.
Any
prosecution that is had in a criminal court on the mistaken
belief
that
the person who is the subject of the case was eighteen
years
of age or older
at the time of the commission of the offense
shall
be deemed a nullity, and
the person shall not be considered
to
have been in jeopardy on the offense.
(I)(G) Upon the transfer of a case
under
division (A)(1) or
(B)(2)
of this
section, the juvenile court
shall state the reasons
for
the transfer on the record, and
shall order the child to enter
into a
recognizance with good and sufficient surety for the
child's
appearance
before the appropriate court for any
disposition that the court
is authorized to make for a similar act
committed by an
adult. The transfer abates the jurisdiction of
the
juvenile court with
respect to the delinquent acts alleged in
the
complaint, and, upon
the transfer, all further proceedings
pertaining to the act charged shall be
discontinued in the
juvenile court, and
the case then shall be within the jurisdiction
of the court to which it is
transferred as described in division
(H) of section 2151.23 of the Revised
Code.
(J)(H) If a person under eighteen
years of age allegedly
commits an act that would be a felony if committed by
an adult and
if the person is not taken into custody or
apprehended for that
act until after the person attains twenty-one years of age,
the
juvenile court
does not have jurisdiction to hear or determine any
portion of the case
charging the person with committing that act.
In those
circumstances, divisions division (A) and (B) of
this
section do
does not apply
regarding the act, and
the case charging
the person
with committing the act shall be a criminal prosecution
commenced
and heard in the appropriate court having jurisdiction
of the
offense as if the person had
been eighteen years of age or
older
when the person committed
the act. All proceedings
pertaining to
the act shall be within the jurisdiction of the
court having
jurisdiction of the offense, and that court
has all
the
authority and duties in the case as it has in
other criminal
cases
in that court.
Sec. 2152.13. (A)(1) A child is eligible for a serious
youthful offender disposition under this section only if the child
is adjudicated a delinquent child for committing an act that would
be a felony offense of violence if committed by an adult, was
fourteen years of age or older when the act was committed, and was
not transferred under section 2152.12 of the Revised Code.
(2) A juvenile court may impose
a serious
youthful offender
dispositional sentence
on a child only if the
prosecuting attorney
of the county in which
the delinquent act
allegedly occurred
initiates the process against the
child in
accordance with this
division, and
the child is
an
alleged
delinquent child who is
eligible under division (A)(1) of this section for the
dispositional sentence a serious youthful
offender disposition.
The prosecuting attorney
may initiate the
process in any of the
following ways:
(1)(a) Obtaining an indictment of the child
as a
serious
youthful offender;
(2) The (b) If the child waives the right to indictment,
charging
the
child in a bill of information as a serious youthful
offender;
(3)(c) Until an indictment or information is obtained,
requesting a
serious
youthful offender dispositional sentence in
the original
complaint
alleging that the child is a
delinquent
child;
(4)(d) Until an indictment or information is obtained, if the
original
complaint
does
not request a serious youthful offender
dispositional
sentence,
filing with the
juvenile
court
a written
notice of intent to
seek a serious
youthful offender
dispositional
sentence
within
twenty days
after
the later of the
following,
unless the time
is
extended by the
juvenile court for
good cause
shown:
(a)(i) The date of the child's first juvenile court hearing
regarding
the complaint;
(b)(ii) The date the juvenile court determines not to
transfer
the
case under section 2152.12 of the Revised Code.
After a written notice is filed under division
(A)(4)(2)(d)
of
this
section,
the
juvenile court shall
serve a copy of the
notice
on
the child
and
advise
the child of the prosecuting
attorney's
intent to seek a
serious youthful offender
dispositional sentence
in the case.
(B) If an alleged delinquent child is not indicted or
charged
by
information as described in division (A)(1)(2)(a) or (2)(b) of
this
section and if a
notice
or complaint as described in division
(A)(3)(2)(c) or
(4)(d) of this
section indicates that the
prosecuting
attorney intends to pursue a serious youthful offender
dispositional sentence in the case, the juvenile court shall
hold
a preliminary hearing to determine if there is probable cause
that
the child committed the act charged and is by age
eligible under
division (A)(1) of this section for, or
required to receive, a
serious youthful offender
dispositional
sentence disposition.
(C)(1) A child for whom a serious youthful offender
dispositional
sentence is sought has the right to a grand jury
determination of probable
cause that the child committed the act
charged and
that the child is eligible by age under division
(A)(1) of this section for a serious
youthful offender
dispositional sentence disposition.
The grand jury may be
impaneled by the court of
common pleas or the juvenile court.
Once a child is indicted,
or charged by information or the
juvenile court determines that the
child is eligible under
division (A)(1) of this section for a serious
youthful offender
dispositional
sentence disposition, the child is entitled to
an
open and speedy trial by jury in juvenile court and to be
provided
with a transcript of the proceedings. The time within
which the
trial is to
be held under Title XXIX of the Revised Code
commences
on whichever of the following dates is applicable:
(a) If the child is indicted or charged by information, on
the
date of
the filing of the indictment or information.
(b) If the child is charged by an original complaint that
requests a serious youthful offender dispositional sentence, on
the date
of the filing of the complaint.
(c) If the child is not charged by an original complaint
that
requests a serious youthful offender dispositional sentence, on
the date that
the prosecuting attorney files the
written notice of
intent to seek a serious youthful offender
dispositional sentence.
(2) If the a child for whom a serious youthful offender
dispositional sentence is sought is detained
awaiting
adjudication, upon
indictment or being charged by information,
the
child has the same
right to bail as an
adult charged with the
offense the alleged
delinquent act would be
if committed by an
adult. Except as
provided in division (D) of
section 2152.14 of
the Revised Code,
all provisions of
Title XXIX of the Revised
Code
and the Criminal
Rules shall apply in the case and to the child.
The juvenile
court shall afford the child all rights afforded a
person who is
prosecuted for
committing a crime including the
right to counsel
and the right to raise the
issue of competency.
The child may not
waive the right to counsel.
(D)(1) If a child is adjudicated a delinquent child
for
committing an act under circumstances that require the juvenile
court to
impose upon the child a serious
youthful offender
dispositional sentence under
section 2152.11 of the
Revised Code,
all of the following
apply:
(a) The juvenile court shall impose upon the child a
sentence
available for the violation, as if the child were an
adult, under
Chapter 2929. of the Revised Code, except that the
juvenile court
shall not impose on the child a sentence of death
or life
imprisonment without parole.
(b) The juvenile court also shall impose upon the child
one
or more traditional juvenile dispositions under sections 2152.16,
2152.19, and 2152.20, and, if applicable, section 2152.17 of
the
Revised Code.
(c) The juvenile court shall stay the adult portion of the
serious youthful offender dispositional sentence pending the
successful
completion of the traditional
juvenile dispositions
imposed.
(2)(a) If a
child is
adjudicated a delinquent child for
committing an act and under
circumstances that allow, but do not
require, the juvenile court
to impose on division (A)(1) of this
section the child is eligible for a serious
youthful offender
dispositional
sentence under
section 2152.11 of
the
Revised Code
disposition, all of the following apply:
(i) If the juvenile court on the
record makes a finding
that,
given the nature and circumstances of the violation and the
history of the child, the length of time, level of security, and
types
of programming and resources available in the juvenile
system alone are
not adequate to provide the juvenile court with a
reasonable
expectation that the purposes set forth in section
2152.01 of the
Revised Code will be met, the juvenile court may
impose upon
the child a sentence available for the
violation, as
if the
child were an adult, under Chapter 2929. of the Revised
Code,
except that the juvenile court shall not impose on the child
a sentence
of death or life imprisonment without parole.
(ii) If a sentence is imposed under division
(D)(2)(1)(a)(i)
of
this
section, the juvenile court also shall impose upon the
child
one or more traditional juvenile dispositions under sections
2152.16,
2152.19, and 2152.20 and, if applicable, section 2152.17
of the
Revised Code.
(iii) The juvenile court shall stay the adult portion of the
serious youthful offender dispositional sentence pending the
successful
completion of the traditional
juvenile dispositions
imposed.
(b) If the juvenile court does not find that a sentence
should be
imposed under division
(D)(2)(1)(a)(i) of this
section,
the
juvenile
court may impose one or more traditional juvenile
dispositions under sections
2152.16, 2152.19,
2152.20, and, if
applicable,
section 2152.17 of the Revised Code.
(3)(2) A child upon whom a serious youthful offender
dispositional
sentence is imposed under division
(D)(1) or (2)
of
this section
has a right to appeal under division (A)(1), (3),
(4),
(5), or (6)
of section 2953.08 of the Revised Code the adult
portion of the
serious youthful offender dispositional sentence
when any of those divisions
apply. The child may appeal the adult
portion, and the court
shall consider the appeal as if the adult
portion were not
stayed.
Sec. 2152.14. (A)(1) The director of youth services may
request
the prosecuting attorney of the county in which is located
the juvenile court
that
imposed a serious youthful
offender
dispositional sentence upon a person under section 2152.13 of the
Revised Code to file a motion
with that
juvenile court to invoke
the adult portion of the
dispositional
sentence if all of the
following apply to the
person:
(a) The person is at least fourteen years of age.
(b) The person is in the institutional custody, or an
escapee
from
the custody, of the department of youth services.
(c) The person is serving the juvenile portion of the
serious
youthful offender dispositional sentence.
(2) The motion shall state that there is reasonable cause to
believe that either of the following misconduct has occurred and
shall state that at least one incident of misconduct of that
nature occurred
after the person reached fourteen years of age:
(a) The person committed an act that is a violation of the
rules
of the institution and that could be charged as any felony
or as a first
degree
misdemeanor offense of
violence if committed
by an adult.
(b) The person has engaged in conduct that
creates a
substantial risk to the safety or security of the institution, the
community, or the
victim.
(B) If a person is at least fourteen years of age, is
serving
the
juvenile portion of a serious youthful offender
dispositional
sentence imposed under section 2152.13 of the Revised Code, and is
on parole or aftercare
from a
department of youth services
facility, or on community
control,
the director of youth services,
the juvenile court that
imposed
the serious youthful offender
dispositional sentence on
the
person, or the probation department
supervising the person may
request the prosecuting attorney of the
county in which is located
the
juvenile court to file a motion
with the juvenile court to
invoke
the adult portion of the
dispositional sentence. The
prosecuting
attorney may file a motion
to invoke the adult portion
of the dispositional
sentence even if
no request is made. The
motion shall state that there is
reasonable cause to believe that
either of the following occurred
and shall state that at least one
incident of misconduct of that
nature occurred after the person
reached fourteen years of age:
(1) The person committed an act that is a violation of the
conditions of supervision and that could be charged as any felony
or as a
first degree misdemeanor offense of violence if committed
by an
adult.
(2) The person has engaged in conduct that creates a
substantial risk to
the safety or security of the community or of
the
victim.
(C) If the prosecuting attorney declines a request to file a
motion that was made by the department of youth services or the
supervising probation department under division (A) or (B)
of this
section or fails to act on a request made under either division by
the
department within a reasonable time, the department of youth
services or the
supervising probation department may file a motion
of the type described in
division (A) or (B) of this section with
the
juvenile court to invoke the adult portion of the serious
youthful
offender dispositional sentence. If the prosecuting
attorney
declines a request to file a motion that was made by the
juvenile
court under division (B) of this section or fails to act
on a
request from the court under that division within a
reasonable time, the
juvenile court may hold the hearing described
in division (D) of this
section on its own
motion.
(D) Upon the filing of a motion described in division
(A),
(B), or (C)
of this section, the juvenile court may hold a hearing
to determine whether to
invoke the adult portion of a person's
serious juvenile offender dispositional
sentence. The juvenile
court shall not
invoke the adult portion of the dispositional
sentence without a
hearing. At the hearing the person who is
the
subject of the serious youthful offender disposition has the
right
to be present, to receive notice of the grounds upon which
the
adult sentence portion is sought to be invoked, to be
represented
by counsel including counsel appointed
under Juvenile
Rule 4(A),
to be advised on the procedures and
protections set forth in the
Juvenile Rules, and to present
evidence on the person's own
behalf, including evidence that the person has a
mental illness or
is a mentally retarded
person. The person may not waive the right
to counsel. The hearing
shall be open to the public. If the
person
presents
evidence that the person has a mental illness or
is a
mentally retarded
person, the juvenile court shall consider
that
evidence in determining
whether to invoke the adult portion
of the
serious youthful offender
dispositional sentence.
(E)(1) The juvenile court may invoke the adult portion of a
person's
serious youthful offender dispositional sentence if the
juvenile court finds
all of the following on the record by clear
and
convincing evidence:
(a) The person is serving the juvenile portion of a
serious
youthful offender dispositional sentence.
(b) The person is at least fourteen years of age and has
been
admitted to a department of youth services facility, or
criminal
charges
are pending against the person.
(c) The person engaged in the conduct or acts charged
under
division (A), (B), or (C) of this section, and the
person's
conduct
demonstrates that the person is unlikely to be
rehabilitated during the
remaining period of juvenile
jurisdiction.
(2) The court may modify the adult sentence the court
invokes
to consist of any lesser prison term that could be imposed
for the
offense and, in addition to the prison term or in lieu of
the
prison term if the prison term was not mandatory, any
community
control sanction that the offender was eligible to
receive at
sentencing.
(F) If a juvenile court issues an order invoking the adult
portion of a serious youthful offender dispositional sentence
under
division (E) of this section, the juvenile portion of the
dispositional sentence shall terminate, and the department of
youth services
shall transfer
the person to the department of
rehabilitation and correction or place the
person under another
sanction imposed as part of the sentence. The juvenile
court
shall
state in its order the total number of days that the
person
has
been held in detention or in a facility operated by, or
under
contract with, the department of youth services under the
juvenile
portion of the dispositional sentence. The time the
person must
serve on a prison term imposed under the adult portion
of the
dispositional sentence shall be reduced by the total number
of
days specified in the order plus any additional days the person
is
held in a juvenile facility or in detention after the
order is
issued and before the person is transferred to the
custody of the
department of rehabilitation and correction. In no case shall
the
total prison term as calculated under this division exceed the
maximum
prison term available for an adult who is convicted of
violating the same
sections of the Revised Code.
Any community control imposed as part of the adult sentence
or as
a condition of a judicial release from prison shall be under
the
supervision of the entity that provides adult probation
services in the
county. Any post-release control imposed after
the
offender
otherwise is released from prison shall be supervised
by
the adult
parole authority.
Sec. 2152.17. (A) Subject to division (D) of this
section,
if a child is adjudicated a delinquent child
for committing
an
act, other than a violation of section 2923.12 of the Revised
Code, that would be a felony
if committed by an adult and, if the
court determines that, if the child was an
adult, the child would
be guilty of a
specification of the type set forth in section
2941.141, 2941.144,
2941.145, 2941.146, 2941.1412, 2941.1414, or
2941.1415 of the Revised Code, and if the court commits the child
to the department of youth services for the underlying delinquent
act under sections 2152.12 to 2152.16 of the Revised Code, in
addition to
any that commitment or and any other disposition the
court imposes
for the underlying
delinquent act, all of the
following apply:
(1) If the court determines that the child would be guilty
of
a
specification of the
type set forth in section 2941.141 of
the
Revised Code,
the court may commit the child to the department
of
youth services for the
specification for a definite period of
up
to one
year.
(2) If the court determines that the child would be guilty
of
a
specification of the
type set forth in section 2941.145 of
the
Revised Code or if the delinquent act is a violation of division
(A)(1) or (2) of section 2903.06 of the Revised Code and the court
determines that the child would be guilty of a specification of
the type set forth in section 2941.1415 of the Revised Code, the
court
shall may
commit the child to the
department of youth
services for the specification for
a definite
period of not less
than one and not more than three
years, and the
court also shall
commit the child to the department for the
underlying delinquent
act under sections 2152.11 to 2152.16 of the
Revised Code.
(3) If the court determines that the child would be guilty
of
a
specification of the type set forth in section 2941.144,
2941.146, or 2941.1412 of
the Revised Code or if the delinquent
act is a violation of division (A)(1) or (2) of section 2903.06 of
the Revised Code and the court determines that the child would be
guilty of a specification of the type set forth in section
2941.1414 of the Revised Code, the court shall may commit the
child to
the
department of youth services for the specification
for a
definite
period of not less than one and not more than five
years,
and the court also
shall commit the
child to the department
for
the underlying delinquent act under
sections 2152.11 to
2152.16 of
the Revised Code.
(B) Division (A) of this section also applies to a child
who
is
an accomplice
to the same extent the firearm specifications
would apply to an adult
accomplice in a criminal proceeding If a
child is adjudicated a delinquent child for committing an act,
other than a violation of section 2923.12 of the Revised Code,
that would be a felony if committed by an adult, if the court
determines that the child is complicit in another person's conduct
that is of such a nature that, if the other person was an adult,
the other person would be guilty of a specification of a type
described in division (A)(1), (2), or (3) of this section, if the
other person's conduct relates to the child's underlying
delinquent act, and if the court commits the child to the
department of youth services for the underlying delinquent act
under sections 2152.12 to 2152.16 of the Revised Code, in addition
to that commitment and any other disposition the court imposes for
the underlying delinquent act, the court may commit the child to
the department of youth services for the specification for a
definite period of not more than one year, subject to division
(D)(2) of this section.
(C) If a child is adjudicated a delinquent child for
committing
an act that would be aggravated murder, murder, or a
first, second, or third
degree felony offense of
violence if
committed by an adult and if the court
determines that, if the
child was an adult, the child would be
guilty of a specification
of the type set forth in section
2941.142 of the Revised Code in
relation to the act for which the
child was adjudicated a
delinquent child, the court shall may commit
the child for the
specification to the legal custody of the
department of youth
services for institutionalization in a secure
facility for a
definite period of not less than one and not more than three
years, subject to division
(D)(2) of this section, and the
court
also
shall commit the child to the department for the underlying
delinquent act.
(D)(1) If the child is adjudicated a
delinquent child for
committing an act that would be an offense of
violence that is a
felony if committed by an adult and is
committed to the legal
custody of the department of youth services
pursuant to division
(A)(1) of
section
2152.16 of the Revised Code
and
if
the court
determines
that the child, if the child was an
adult, would be
guilty of a
specification of the type set forth in
section
2941.1411 of the
Revised Code in relation to the act for
which the
child was
adjudicated a delinquent child, the court may
commit the
child to
the custody of the department of youth
services for
institutionalization in a secure facility for
up to
two
years,
subject
to
division
(D)(2) of this section.
(2) A court that imposes a period of commitment under
division
(A) or (B) of this section is not
precluded from imposing
an
additional period of commitment under division
(C) or
(D)(1)
of
this section, a
court that imposes a
period of
commitment under
division
(C) of this
section is
not
precluded from imposing
an
additional period of commitment under
division (A), (B), or
(D)(1)
of
this
section, and a court that
imposes a period of commitment
under division
(D)(1) of
this
section is not precluded from
imposing an additional period
of commitment
under division
(A),
(B), or
(C) of
this section.
(E) The court shall not commit a child to the legal custody
of
the department of youth services for
a specification
pursuant
to
this section for a period that
exceeds five years
for
any
one
delinquent act. Any
commitment imposed pursuant to
division (A),
(B), (C), or
(D)(1) of this
section shall be in addition to,
and
shall be
served consecutively with and
prior to, a period of
commitment
ordered under this chapter for the underlying
delinquent act, and
each and the child shall be eligible for
judicial release during the commitments in accordance with section
2152.22 of the Revised Code. Each commitment imposed
pursuant to
division
(A), (B), (C), or
(D)(1) of
this
section shall be in
addition
to,
and
shall be
served
consecutively with, any other
period of
commitment
imposed
under
any of those
divisions, and the
child shall be eligible for judicial release during the
commitments in accordance with section 2152.22 of the Revised
Code. If a commitment is
imposed under
division
(A) or
(B) of this
section and a commitment
also is
imposed under
division
(C) of
this section, the period
imposed
under division
(A) or (B)
of this
section
shall be served
prior to
the period
imposed under division
(C) of
this section, and the child shall be eligible for judicial
release during the commitments in accordance with section 2152.22
of the Revised Code.
In each case in which a court makes a disposition under this
section, the court retains control over the commitment for the
entire period of the commitment.
The total of all the periods of commitment imposed for any
specification under this section and for the underlying offense
shall not exceed the child's attainment of twenty-one years
of
age.
(F) If a child is adjudicated a delinquent child for
committing
two or more acts that would be felonies if committed by
an adult and if the
court entering the delinquent child
adjudication
orders the commitment of the child for two or more of
those acts
to the legal custody of the department of youth
services for
institutionalization in a secure facility pursuant to
section
2152.13 or 2152.16
of the Revised Code, the court may
order that all of the periods of commitment imposed under those
sections for those acts be served consecutively in the legal
custody of the
department of youth services, provided that those
periods of commitment shall
be in addition to and
commence
immediately following the expiration of a period of commitment
that the court
imposes pursuant to division (A), (B), (C), or
(D)(1) of
this section. A court shall not commit a delinquent
child to
the
legal
custody of the department of youth services
under this
division for a period that exceeds the child's
attainment of
twenty-one
years of age.
Sec. 2152.22. (A)
When a child is committed to the legal
custody
of the department of youth services under this chapter,
the juvenile court
relinquishes control with respect to the child
so committed, except as
provided in
divisions (B), (C), and (G) of
this section
or in sections 2152.82 to 2152.86 of the
Revised
Code.
Subject to divisions (B) and (C) of this section,
sections
2151.353 and 2151.412 to 2151.421 of the Revised Code,
sections
2152.82 to 2152.86 of the Revised Code,
and
any
other
provision of
law that specifies a different duration
for a
dispositional order,
all other dispositional orders made by
the
court under
this
chapter shall be
temporary and
shall continue
for
a period that is
designated by the court in its
order, until
terminated or modified
by the court or until
the child attains
twenty-one years of age.
The department shall not release the
child from a department
facility and as a result shall not discharge the
child or order
the child's release on supervised release prior to the
expiration
of the
minimum period
specified by
the court in division (A)(1) of
section 2152.16 of the Revised
Code and, prior to the expiration
of any term of commitment
imposed under section 2152.17 of
the
Revised Code, or
prior to the
child's attainment of twenty-one
years
of age,
except upon the
order of a court pursuant to
division (B) or
(C) of this section
or in accordance with section
5139.54 of the
Revised Code.
(B)(1)
The court that commits a delinquent child to the
department
may grant judicial release of the child to court
supervision under
this division for any of the following periods
of time:
(a) Except as otherwise provided in division (B)(1)(c) of
this
section, if the child was committed to the department for a
prescribed minimum period and a maximum period not to exceed the
child's attainment of twenty-one years of age, the court may grant
judicial release of the child to court supervision
during the
first half of the
that prescribed minimum term for which the child
was committed to the
department or, if period of commitment.
(b) Except as otherwise provided in division (B)(1)(d) of
this section, if the child was committed to the department until
the child attains twenty-one years of age, the court may grant
judicial release of the child to court supervision during the
first half
of the prescribed period of commitment that begins on
the first
day of that commitment and ends on the child's
twenty-first birthday,
provided any commitment imposed under
division
(A), (B), (C),
or
(D) of section 2152.17 of the Revised
Code
has
ended.
(c) If the child was committed to the department for both one
or more definite periods under division (A), (B), (C), or (D) of
section 2152.17 of the Revised Code and a period of the type
described in division (B)(1)(a) of this section, all of the
prescribed definite periods of commitment imposed under division
(A), (B), (C), or (D) of section 2152.17 of the Revised Code and
the prescribed minimum period of commitment of the type described
in division (B)(1)(a) of this section shall be aggregated for
purposes of this division and the court may grant judicial release
of the child to court supervision during the first half of that
aggregate minimum period of commitment.
(d) If the child was committed to the department for both one
or more definite periods under division (A), (B), (C), or (D) of
section 2152.17 of the Revised Code and a period of the type
described in division (B)(1)(b) of this section, the court may
grant judicial release of the child to court supervision during
the first half of the prescribed minimum period of commitment that
begins on the first day of the first prescribed definite period of
commitment imposed under division (A), (B), (C), or (D) of section
2152.17 of the Revised Code and ends on the child's twenty-first
birthday.
(2) If the department of youth services desires to release a
child during a period specified in division (B)(1) of this
section, it shall request the court that committed the child to
grant a
judicial release of the child to court supervision.
During
whichever of those
periods is applicable, the child or the
parents
of
the child also may request that court to grant a
judicial
release
of the child to court supervision. Upon receipt
of a
request for
a judicial release to court supervision from the
department, the
child, or the child's parent, or upon its own
motion, the court
that committed the child shall do one of the
following: approve
the release by journal entry; schedule within
thirty days after the request is
received a time for a hearing on
whether the child is to be released; or reject
the request by
journal entry without conducting a hearing.
If the court rejects an initial request for a release under
this
division by the child or the child's parent, the child or the
child's
parent may make one additional request for a judicial
release to
court supervision within the applicable period. The
additional
request may be made no earlier than thirty days after
the filing
of the prior request for a judicial release to court
supervision. Upon the filing of a second request
for a judicial
release to court supervision, the court shall either approve or
disapprove the release
by journal entry or schedule within thirty
days after the request
is received a time for a hearing on whether
the child is to be
released.
(3) If a court schedules a hearing under division (B)(2) of
this
section, it may order the department to deliver the child to
the court on
the date set for the hearing and may order the
department
to present to the court a report on the child's
progress in the
institution to which the child was committed and
recommendations for
conditions of supervision of the child by the
court after release. The
court may conduct the hearing without
the
child being present.
The court shall determine at the hearing
whether the child should
be granted a judicial release to court
supervision.
If the court approves the release, it shall order its staff
to
prepare a written treatment and rehabilitation plan for the
child that
may include any conditions of the child's release that
were
recommended by the department and approved by the court. The
committing court shall send the juvenile
court of the county in
which the child is placed a copy of the
recommended plan. The
court of the
county in which the child is placed may adopt the
recommended
conditions set by the committing court as an order of
the court
and may add any additional consistent conditions it
considers
appropriate. If a child is granted a judicial release
to
court
supervision, the release discharges the child from the
custody of
the department of youth services.
(C)(1)
The court that commits a delinquent child to the
department may grant judicial release of the child to department
of youth
services supervision under this division
during the
second for any of the following periods of time:
(a) Except as otherwise provided in division (C)(1)(c) of
this
section, if the child was committed to the department for a
prescribed minimum period and a maximum period not to exceed the
child's attainment of twenty-one years of age, the court may grant
judicial release of the child to department of youth services
supervision at any time after the expiration of the first half
of
the that prescribed minimum term for which the child was
committed
to the department or, if period of commitment.
(b) Except as otherwise provided in division (C)(1)(d) of
this section, if the child was committed to the
department
until
the child attains twenty-one years of age, the court may grant
judicial release of the child to department of youth services
supervision during
the second
half of the prescribed period of
commitment that begins
on the
first day of that commitment and
ends on the child's
twenty-first
birthday, provided any
commitment
imposed under
division (A), (B), (C), or (D)
of section
2152.17 of
the
Revised
Code has ended;
(c) If the child was committed to the department for both one
or more definite periods under division (A), (B), (C), or (D) of
section 2152.17 of the Revised Code and a period of the type
described in division (C)(1)(a) of this section, all of the
prescribed definite periods of commitment imposed under division
(A), (B), (C), or (D) of section 2152.17 of the Revised Code and
the prescribed minimum period of commitment of the type described
in division (C)(1)(a) of this section shall be aggregated for
purposes of this division, and the court may grant judicial
release of the child to department of youth services supervision
at any time after the expiration of the first half of that
aggregate minimum period of
commitment.
(d) If the child was committed to the department for both one
or more definite periods under division (A), (B), (C), or (D) of
section 2152.17 of the Revised Code and a period of the type
described in division (C)(1)(b) of this section, the court may
grant judicial release of the child to department of youth
services supervision during the second half of the prescribed
minimum period of commitment that begins on the first day of the
first prescribed definite period of commitment imposed under
division (A), (B), (C), or (D) of section 2152.17 of the Revised
Code and ends on the child's twenty-first birthday.
(2) If the department of youth services desires to release a
child during a period specified in division (C)(1) of this
section, it shall request the court that committed the child to
grant a
judicial release to department of youth services
supervision. During whichever of those periods is applicable, the
child or the child's parent also may request the court that
committed the child to grant a judicial release to department of
youth services supervision. Upon receipt of a request for
judicial
release to department of youth services supervision, the
child, or
the child's parent, or upon its own motion at any time
during
that
period, the court shall do one of the following:
approve the
release by
journal entry; schedule a time within
thirty days after
receipt of the request
for a hearing on whether
the child is to be
released; or reject
the request by journal
entry without
conducting a hearing.
If the court rejects an initial request for release under
this
division by the child or the child's parent, the child or the
child's
parent may make one or more subsequent requests for a
release
within the applicable period, but may make no more than
one request during
each period of ninety
days that the child is in
a secure department facility after the filing of a
prior request
for early
release. Upon the filing of a request for release under
this
division subsequent to an initial request, the court shall
either
approve or disapprove the release by journal entry or
schedule a
time within thirty days after receipt of the request
for a hearing
on whether the child is to be released.
(3) If a court schedules a hearing under division (C)(2) of
this
section, it may order the department to deliver the child to
the court on the date set for the hearing and shall order the
department to present to the court at that time a treatment plan
for the child's post-institutional care. The court may conduct
the
hearing without the child being present. The court shall
determine
at the hearing whether the child should be granted a
judicial
release to department of youth services supervision.
If the court approves the judicial release to department of
youth
services supervision, the department shall prepare a written
treatment and rehabilitation plan for the child pursuant to
division
(E) of this section that shall include the conditions of
the child's release. It shall send the committing court and the
juvenile court of the
county in which the child is placed a copy
of the plan. The court of the county in which
the child is placed
may adopt the conditions set by the department
as an order of the
court and may add any additional consistent
conditions it
considers appropriate, provided that the court may
not add any
condition that decreases the level or degree of
supervision
specified by the department in its plan, that
substantially
increases the financial burden of supervision that will be
experienced by the department, or that alters the placement
specified by the
department in its plan. If the court of the
county in which the child is
placed adds to the department's plan
any additional conditions, it
shall enter those additional
conditions in its journal and shall
send to the department a copy
of the journal entry of the
additional conditions.
If the court approves the judicial release to department of
youth
services supervision, the actual date on which the
department
shall release the child is contingent upon the
department finding
a suitable placement for the child. If the
child is to be
returned to the child's home, the department shall
return the
child on the date that the court schedules for the
child's release
or shall bear the expense of any additional time
that the child
remains in a department facility. If the child is
unable to
return to the child's home, the department shall
exercise
reasonable diligence in finding a suitable placement for
the
child, and the child shall remain in a department facility
while the
department finds the suitable placement.
(D) If a child is released under division (B) or
(C) of this
section and the court of the county in which the child is placed
has reason to
believe that the child's deportment is not in
accordance with the conditions
of the child's judicial release,
the
court of the county in which the child is placed shall
schedule a
time for a hearing to determine whether the child
violated any of
the post-release conditions, and, if the child was
released under
division (C) of this section, divisions (A) to (E)
of section 5139.52 of the Revised Code apply regarding the
child.
If that court determines at the hearing that the child
violated
any of the post-release conditions, the court, if it
determines that the
violation was a serious violation, may order
the child to be returned to
the department for
institutionalization, consistent with the
original order of
commitment of the child, or in any case may make
any other
disposition of the child authorized by law that the court
considers proper. If the court of
the county in which the child
is
placed orders the child to be returned to a department of youth
services institution, the time during which the child was held in
a secure department facility prior to the child's judicial release
shall be considered as time served in fulfilling the prescribed
period of institutionalization that is applicable to the child
under the child's original order of commitment. If the court
orders the child returned to a department institution, the child
shall remain
in institutional care for a minimum of three months
or until the child
successfully completes a revocation program of
a duration of not less than
thirty days operated either by the
department or by an entity with
which the department has
contracted to provide a revocation
program.
(E) The department of youth services, prior to the release
of
a
child pursuant to division (C) of this section, shall do all
of
the following:
(1) After reviewing the child's rehabilitative progress
history
and medical and educational records, prepare a written
treatment and
rehabilitation plan for the child that includes
conditions of the
release;
(2) Completely discuss the conditions of the plan prepared
pursuant to division (E)(1) of this section and the possible
penalties for violation of the plan with the child and the child's
parents, guardian, or legal custodian;
(3) Have the plan prepared pursuant to division (E)(1) of
this
section signed by the child, the child's parents, legal
guardian, or custodian, and any authority or person that is to
supervise, control, and provide supportive assistance to the child
at the time of the child's release pursuant to division (C) of
this section;
(4) Prior to the child's release, file a copy of the
treatment plan
prepared pursuant to division (E)(1) of this
section with the
committing court and the juvenile court of the
county in which
the child is to be placed.
(F) The department of youth services shall file a written
progress report with the committing court regarding each child
released
pursuant to division (C) of this section at least
once
every thirty days unless specifically directed otherwise by the
court.
The report shall
indicate the treatment and rehabilitative
progress of the child and the
child's family, if
applicable, and
shall include any suggestions for altering the
program, custody,
living arrangements, or treatment. The
department shall retain
legal custody of a child so released until
it discharges the child
or until the custody is terminated as
otherwise provided by law.
(G)
When a child is committed to the legal custody of the
department of youth services, the court retains jurisdiction to
perform
the functions specified in section 5139.51 of the Revised
Code
with respect to the granting of supervised release by the
release
authority and to perform the functions specified in
section 5139.52 of
the Revised Code with respect to violations of
the
conditions of supervised release granted by the release
authority and to the
revocation of supervised release granted by
the
release authority.
Sec. 5139.01. (A) As used in this chapter:
(1)
"Commitment" means the transfer of the physical
custody
of a child or youth from the court to the department of
youth
services.
(2)
"Permanent commitment" means a commitment that vests
legal custody of a child in the department of youth services.
(3)
"Legal custody," insofar as it pertains to the status
that is created when a child is permanently committed to the
department of youth services, means a legal status in which the
department has the following rights and responsibilities: the
right to have physical possession of the child; the right and
duty
to train, protect, and control the child; the
responsibility to
provide the child with food, clothing, shelter, education,
and
medical
care; and the right to determine where and with whom the
child shall
live, subject to the minimum periods of, or periods
of,
institutional care
prescribed in sections 2152.13 to
2152.18
of the Revised Code; provided,
that these rights and
responsibilities are exercised subject to
the powers, rights,
duties, and responsibilities of the guardian
of the person of the
child, and subject to any residual parental
rights and
responsibilities.
(4) Unless the context requires a different meaning,
"institution" means a state facility that is created by the
general
assembly and that is under the management and control of
the
department of youth services or a private entity with which
the department has
contracted for the institutional care and
custody of felony delinquents.
(5)
"Full-time care" means care for twenty-four hours a
day
for over a period of at least two consecutive weeks.
(6)
"Placement" means the conditional release of a child
under the terms and conditions that are specified by the
department of youth services. The department shall retain legal
custody of a child released pursuant to division (C) of section
2152.22 of the Revised Code or division (C) of section
5139.06 of
the Revised Code until the time that it discharges the child or
until the legal custody is terminated as otherwise provided by
law.
(7)
"Home placement" means the placement of a child in the
home of the child's parent or parents or in the home of the
guardian of
the child's person.
(8)
"Discharge" means that the department of youth
services'
legal custody of a child is terminated.
(9)
"Release" means the termination of a child's stay in
an
institution and the subsequent period during which the child
returns to the
community under the terms and conditions of
supervised release.
(10)
"Delinquent child" has the same meaning as in section
2152.02 of the Revised Code.
(11)
"Felony delinquent" means any child who is at least
ten
years of age but less than eighteen years of age and who
is
adjudicated a delinquent child for having committed an act
that if
committed by an adult would be a felony.
"Felony
delinquent"
includes any adult who is between the ages of
eighteen and
twenty-one and who is in the legal custody of the
department of
youth services for having committed an act that if
committed by an
adult would be a felony.
(12)
"Juvenile traffic offender" has the same meaning as
in
section 2152.02 of the Revised Code.
(13)
"Public safety beds" means all of the following:
(a) Felony delinquents who have been committed to the
department of
youth services for the commission of an act, other
than a violation
of section 2911.01 or 2911.11 of the Revised
Code, that is a category
one offense or a category two offense
and
who are in the care and custody of an institution or have been
diverted
from care and custody in an institution and placed in a
community corrections
facility;
(b) Felony delinquents who, while committed to the
department
of youth
services and in the care and custody of an
institution or
a community
corrections facility, are adjudicated
delinquent
children for having
committed
in that institution or
community
corrections facility an act that if
committed by an
adult would be
a misdemeanor or a felony;
(c) Children who satisfy all of the following:
(i) They are at least ten years of age but less
than
eighteen
years of age.
(ii) They are adjudicated delinquent
children for having
committed acts that if committed by an
adult would be a felony.
(iii) They are committed to the department of
youth services
by the juvenile court of a county that has had
one-tenth of one
per cent or less of the statewide adjudications
for felony
delinquents as averaged for the
past
four fiscal years.
(iv) They are in the care and custody of an institution or a
community
corrections facility.
(d) Felony delinquents who, while committed to the
department
of youth
services and in the care and custody of an
institution
are
serving disciplinary time
for
having
committed an act
described in division (A)(18)(a), (b), or (c) of this section, and
who have been institutionalized
or institutionalized
in a secure
facility for the minimum period
of time specified in divisions
(A)(1)(b) to
(e) of section
2152.16 of the Revised Code.
(e) Felony delinquents who are subject to and serving a
three-year
period of commitment order imposed by a juvenile court
pursuant
to divisions (A) and (B) of
section 2152.17 of the
Revised Code for an act, other than a violation of
section 2911.11
of the Revised Code, that would be a category one
offense or
category two offense if committed by an adult.
(f) Felony delinquents who are described in divisions
(A)(13)(a) to (e)
of this section, who have been granted a
judicial release to court
supervision under
division (B) of
section 2152.22
of the Revised Code or a judicial release to the
department of youth services supervision under
division (C) of
that section
from the commitment to the department of youth
services for the
act described in divisions (A)(13)(a) to (e)
of
this section, who have violated the terms and conditions of
that
release, and who, pursuant to an
order of the court of the county
in which the particular felony
delinquent was placed on release
that is issued pursuant to
division (D) of section 2152.22
of the
Revised Code, have been returned to the
department for
institutionalization or institutionalization in a
secure facility.
(g) Felony delinquents who have been
committed to the
custody
of the department of youth services,
who have been granted
supervised release from the commitment
pursuant to section 5139.51
of the
Revised Code, who have violated the
terms and conditions of
that supervised release, and who, pursuant
to an order of the
court of the county in which the particular
child was placed on
supervised release issued pursuant to
division (F) of section
5139.52
of the Revised Code, have had the supervised
release
revoked and have been returned to the department for
institutionalization. A felony delinquent described in this
division
shall be a public safety bed only for the time during
which the
felony delinquent is institutionalized as a result of
the revocation
subsequent to the initial thirty-day period of
institutionalization required by division (F) of section 5139.52
of the Revised Code.
(14)
Unless the context requires a different meaning,
"community corrections facility" means a county or multicounty
rehabilitation center for felony delinquents who have been
committed to the department of youth services and diverted from
care and custody in an institution and placed in the
rehabilitation center pursuant to division (E) of section 5139.36
of the Revised Code.
(15)
"Secure facility" means any facility that is designed
and operated to
ensure that all of its entrances and exits are
under the exclusive control of
its staff and to ensure that,
because of that exclusive control, no child who
has been
institutionalized in the facility may leave the facility without
permission or supervision.
(16)
"Community residential program" means a program that
satisfies both of
the following:
(a) It is housed in a building or other structure that has
no
associated
major restraining construction, including, but not
limited to, a security
fence.
(b) It provides twenty-four-hour care, supervision, and
programs for felony
delinquents who are in residence.
(17)
"Category one offense" and
"category two offense" have
the
same
meanings
as in section 2151.26 of the Revised Code means
any
of the following:
(a) A violation of section 2903.01 or 2903.02 of the Revised
Code;
(b) A violation of section 2923.02 of the Revised Code
involving an attempt to commit aggravated murder or murder.
(18)
"Disciplinary time" means
additional time that the
department of youth services
requires a felony delinquent to serve
in an institution, that
delays the felony delinquent's
planned
release, and that
the
department imposes upon the felony
delinquent following the
conduct of an internal due
process
hearing for
having committed any of the following acts
while
committed to
the department and in the care and custody of
an
institution:
(a) An act that if committed by an
adult would be a felony;
(b) An act that if committed by an
adult would be a
misdemeanor;
(c) An act that is not described in division (A)(18)(a)
or
(b) of this section and that violates an
institutional rule of
conduct of the department.
(19)
"Unruly child" has the same meaning as in section
2151.022 of the Revised Code.
(20)
"Revocation" means the act of revoking a child's
supervised release for a violation of a term or condition of the
child's supervised release in accordance with section 5139.52
of
the Revised Code.
(21)
"Release authority" means the release authority
of the
department of youth services that is established by section
5139.50 of the Revised Code.
(22)
"Supervised release" means the event of the
release of
a
child under this chapter from an institution and the period
after
that release during which the child is supervised and
assisted
by
an employee of the department of youth services under
specific
terms and
conditions for reintegration of the child into
the
community.
(23)
"Victim" means the person identified in a police
report,
complaint, or information as the victim of an act
that
would have
been a criminal offense if committed by an adult
and
that provided
the basis for adjudication proceedings
resulting in
a child's
commitment to the legal custody of the
department of
youth
services.
(24)
"Victim's representative" means a member of the
victim's
family or another person whom the victim or another
authorized
person
designates in writing,
pursuant to section
5139.56 of the
Revised Code, to
represent the victim with respect
to proceedings
of the release
authority of the department of youth
services and
with respect to other
matters specified in that
section.
(25)
"Member of the victim's family" means a spouse,
child,
stepchild, sibling, parent, stepparent, grandparent, other
relative,
or legal guardian of a child but does not include a
person charged
with, convicted of, or adjudicated a delinquent
child for committing a
criminal or delinquent act against the
victim or another criminal or
delinquent act arising
out of the
same conduct, criminal or delinquent episode, or plan as the
criminal or delinquent act committed against the victim.
(26)
"Judicial release to court supervision" means
a release
of a
child
from institutional care or institutional care in a
secure facility
that is granted by a court pursuant to division
(B) of section 2152.22 of the Revised Code during the
period
specified in that
division.
(27)
"Judicial release to
department of youth services
supervision" means a release of a child from
institutional care or
institutional care in a secure facility
that is granted by a court
pursuant to division (C) of section
2152.22 of the
Revised Code
during the period specified in that division.
(28) "Juvenile justice system"
includes all of the functions
of the juvenile courts, the
department of youth services, any
public or private agency whose
purposes include the prevention of
delinquency or the diversion,
adjudication, detention, or
rehabilitation of delinquent children,
and any of the functions of
the criminal justice system that are
applicable to children.
(29) "Metropolitan county criminal justice services agency"
means an agency that is established pursuant to division (A) of
section 5502.64 of the Revised Code.
(30) "Administrative planning district" means a district that
is established pursuant to division (A) or (B) of section 5502.66
of the Revised Code.
(31) "Criminal justice coordinating council" means a criminal
justice services agency that is established pursuant to division
(D) of section 5502.66 of the Revised Code.
(32)
"Comprehensive plan" means a document that
coordinates,
evaluates, and otherwise assists, on an annual or
multi-year
basis,
all of the functions of the juvenile
justice
systems of the
state or a specified area of the
state,
that
conforms to the
priorities of the state with respect
to
juvenile justice systems,
and that conforms with
the
requirements of all federal criminal
justice acts. These
functions include, but are not limited to,
all
of the
following:
(b) Identification, detection, apprehension, and detention
of
persons charged with delinquent acts;
(c) Assistance to crime victims or witnesses, except that
the
comprehensive plan does not include the functions of the
attorney
general pursuant to sections 109.91 and 109.92 of the
Revised
Code;
(d) Adjudication or diversion of persons charged with
delinquent acts;
(e) Custodial treatment of delinquent
children;
(f) Institutional and noninstitutional rehabilitation of
delinquent children.
(33) "Category two offense" means any of the following:
(a) A violation of section 2903.03, 2905.01, 2907.02,
2909.02, 2911.01, or 2911.11 of the Revised Code;
(b) A violation of section 2903.04 of the Revised Code that
is a felony of the first degree;
(c) A violation of section 2907.12 of the Revised Code as it
existed prior to September 3, 1996.
(B) There is hereby created the department of youth
services.
The governor shall appoint the director of the
department with the
advice and consent of the senate. The
director shall hold office
during the term of the appointing
governor but subject to removal
at the pleasure of the governor.
Except as otherwise authorized in
section 108.05 of the Revised
Code, the director shall devote the
director's entire time
to the
duties of
the director's office and
shall hold no other office or
position of trust or
profit during
the director's term of office.
The director is the chief executive and administrative
officer of the department and has all the powers of a department
head set forth in Chapter 121. of the Revised Code. The
director
may adopt
rules for the government of the department, the conduct
of its
officers and employees, the performance of its business,
and the
custody, use, and preservation of the department's
records,
papers, books, documents, and property. The director
shall be an
appointing authority within the meaning of Chapter
124. of the
Revised Code. Whenever this or any other chapter or
section of
the Revised Code imposes a duty on or requires an
action of the
department, the duty or action shall be performed by
the director
or, upon the director's order, in the name of the
department.
Sec. 5139.05. (A) The juvenile court may commit any child
to
the department of youth services as authorized in
Chapter
2152. of
the Revised
Code, provided that any child so
committed
shall be at
least ten years of age at the time
of the child's
delinquent act,
and, if the child is ten
or eleven years of age,
the delinquent
act is a
violation of section 2909.03 of the
Revised Code or would
be aggravated murder, murder, or a
first or
second degree felony
offense of violence if committed by an adult.
Any order to commit
a
child to an
institution
under the control
and management of the
department shall have the
effect of ordering
that the child be
committed to the department
and assigned to an
institution as
follows:
(1) For an indefinite term consisting
of the prescribed
minimum period specified by the court
under
division (A)(1)(b),
(c), (d), or (e) of
section 2152.16 of the Revised Code and a
maximum
period not
to
exceed the child's attainment of twenty-one
years of
age, if the
child was committed pursuant to
section
2152.16 of
the Revised
Code;
(2) Until the child's attainment of twenty-one years of
age,
if the child was
committed for aggravated murder or murder
pursuant to section 2152.16 of the Revised Code;
(3) For a definite period of commitment that specified by the
court under section 2152.17 of the Revised Code if the child was
committed pursuant to that section, which definite period shall be
in addition to,
and shall be
served consecutively with and prior
to, a the period of
commitment
described in division (A)(1) or (2)
of this
section, if
the child was committed pursuant to
section
2152.17 of the
Revised Code; that is imposed for the child's
underlying delinquent act. The child shall be eligible for
judicial release during the commitments in accordance with section
2152.22 of the Revised Code.
(4) If the child is ten or
eleven years of age, to an
institution, a residential care facility, a residential facility,
or a
facility licensed by the department of job and family
services that the
department of youth services considers best
designated for the training and
rehabilitation of the child and
protection of the public. The child shall be
housed separately
from children who are twelve years of age or older until the child
is
released or discharged
or until the child attains twelve years
of age, whichever occurs
first. Upon the child's attainment of
twelve years of
age, if the child has not been released or
discharged, the
department is not required to house the child
separately.
(B)(1)
Except as otherwise provided in section 5139.54 of
the
Revised Code, the release authority of the department of youth
services,
in accordance with section 5139.51 of the Revised Code
and at any time
after the end of the
prescribed minimum period
specified
of institutionalization or institutionalization in a
secure facility imposed under
division (A)(1)(b), (c), (d), or (e)
of section 2152.16
of the Revised Code and after the expiration of
any term of commitment imposed under division (A), (B), (C), or
(D) of section 2152.17 of the Revised Code, may
grant the
release
from custody of any
child committed to the
department.
The order committing a child to the department of youth
services shall state that the child has been adjudicated a
delinquent child and state the
minimum period.
The
jurisdiction
of
the court terminates at the end
of the
minimum period
except
as
follows:
(a) In relation to judicial release
procedures,
supervision,
and violations;
(b) With respect to
functions of the court related to the
revocation of supervised release that
are specified in
sections
5139.51 and 5139.52 of the
Revised
Code;
(c) In relation to its duties relating to serious youthful
offender dispositional sentences under sections 2152.13 and
2152.14 of the Revised Code.
(2) When a child has been committed to the
department under
section 2152.16 of the Revised Code,
the department shall retain
legal custody of the child until one of the following:
(a) The department discharges the child to the exclusive
management, control, and
custody of the child's parent or the
guardian of
the child's person or, if the child is eighteen years
of age or older, discharges the child.
(b) The
committing court, upon its own motion, upon petition
of the
parent, guardian of the person, or next friend of a child,
or
upon petition of the department, terminates the department's
legal custody of the child.
(c) The committing court grants the child a
judicial release
to court supervision under
section 2152.22
of the Revised Code.
(d) The department's legal
custody of the child is
terminated
automatically by the child
attaining twenty-one years
of age.
(e) If the child is subject to a serious youthful offender
dispositional sentence, the adult portion of that dispositional
sentence is
imposed under section 2152.14 of the Revised Code.
(C) When a child is committed to the department of youth
services, the department may assign the child to a hospital for
mental, physical, and other examination, inquiry, or treatment
for
the period of time that is necessary. The department may
remove
any child in its custody to a hospital for observation,
and a
complete report of every observation at the hospital
shall be made
in writing and shall include a record of
observation, treatment,
and medical history and a recommendation
for future treatment,
custody, and maintenance. The department
shall thereupon order
the
placement and treatment that it
determines to be most
conducive to
the purposes of Chapters 2151.
and 5139. of the
Revised Code. The
committing court and all
public authorities
shall make available
to the department all
pertinent data in their
possession with
respect to the case.
(D) Records maintained by the department of youth services
pertaining to the children in its custody shall be accessible
only
to department employees, except by consent of the department,
upon
the order of the judge of a court of record, or as provided in
divisions (D)(1) and (2) of this section. These
records
shall not
be considered "public records," as defined in
section
149.43 of
the Revised Code.
(1) Except as otherwise provided by a law of this state or
the
United
States, the department of youth services may release
records that are
maintained by the department of youth services
and that pertain to children in
its custody to the department of
rehabilitation and correction regarding
persons who are under the
jurisdiction of the department of rehabilitation and
correction
and who have previously been committed to the department of youth
services. The department of rehabilitation and correction may use
those
records for the limited purpose of carrying out the duties
of the department
of rehabilitation and correction. Records
released by the department of youth
services to the department of
rehabilitation and correction shall remain
confidential and shall
not be considered public records as defined in section
149.43 of
the Revised Code.
(2) The department of youth services shall provide to the
superintendent of the school district in which a child discharged
or released from the custody of the department is entitled to
attend school under section 3313.64 or 3313.65 of the Revised Code
the records described in divisions (D)(4)(a) to (d) of section
2152.18 of the Revised Code. Subject to the provisions of section
3319.321 of the Revised Code and the Family Educational Rights and
Privacy Act, 20 U.S.C. 1232g, as amended, the records released to
the superintendent shall remain confidential and shall not be
considered public records as defined in section 149.43 of the
Revised Code.
(E)(1) When a child is committed to the department of
youth
services, the department, orally or in writing, shall
notify the
parent, guardian, or custodian of a child that the
parent,
guardian, or custodian may request at any time from the
superintendent of the institution in which the child is located
any of the information described in divisions (E)(1)(a), (b),
(c),
and (d) of this section. The parent, guardian, or custodian
may
provide the department with the name, address, and telephone
number of the parent, guardian, or custodian, and, until the
department is notified of a change of name, address, or telephone
number, the department shall use the name, address, and telephone
number provided by the parent, guardian, or custodian to provide
notices or answer inquiries concerning the following information:
(a) When the department of youth services makes a
permanent
assignment of the child to a facility, the department,
orally or
in writing and on or before the third business day
after the day
the permanent assignment is made, shall notify the
parent,
guardian, or custodian of the child of the name of the
facility to
which the child has been permanently assigned.
If a parent, guardian, or custodian of a child who is
committed to the department of youth services requests, orally or
in writing, the department to provide the parent, guardian, or
custodian with the name of the
facility in which the child is
currently located, the department,
orally or in writing and on or
before the next business day after
the day on which the request is
made, shall provide the name of
that facility to the parent,
guardian, or custodian.
(b) If a parent, guardian, or custodian of a child who is
committed to the department of youth services, orally or in
writing, asks the superintendent of the institution in which the
child is located whether the child is being disciplined by the
personnel of the institution, what disciplinary measure the
personnel of the institution are using for the child, or why the
child is being disciplined, the superintendent or the
superintendent's designee,
on or before the next business day
after the day on which the
request is made, shall provide the
parent, guardian, or custodian
with written or oral responses to
the questions.
(c) If a parent, guardian, or custodian of a child who is
committed to the department of youth services, orally or in
writing, asks the superintendent of the institution in which the
child is held whether the child is receiving any medication from
personnel of the institution, what type of medication the child
is
receiving, or what condition of the child the medication is
intended to treat, the superintendent or the
superintendent's
designee, on or
before the next business day after the day on
which the request
is made, shall provide the parent, guardian, or
custodian with
oral or written responses to the questions.
(d) When a major incident occurs with respect to a child
who
is committed to the department of youth services, the
department,
as soon as reasonably possible after the major
incident occurs,
shall notify the parent, guardian, or custodian
of the child that
a major incident has occurred with respect to
the child and of all
the details of that incident that the
department has ascertained.
(2) The failure of the department of youth services to
provide any notification required by or answer any requests made
pursuant to division (E) of this section does not create a cause
of action against the state.
(F) The department of youth services, as a means of
punishment while the child is in its custody, shall not prohibit
a
child who is committed to the department from seeing that
child's
parent, guardian, or custodian during standard visitation
periods
allowed by the department of youth services unless the
superintendent of the institution in which the child is held
determines that permitting that child to visit with the
child's
parent,
guardian, or custodian would create a safety risk to that
child,
that child's parents, guardian, or custodian, the personnel
of
the institution, or other children held in that institution.
(G) As used in this section:
(1) "Permanent assignment" means the assignment or
transfer
for an extended period of time of a child who is
committed to the
department of youth services to a facility in
which the child will
receive training or participate in
activities that are directed
toward the child's successful
rehabilitation. "Permanent
assignment" does not include the
transfer of a child to a facility
for judicial release
hearings
pursuant to section 2152.22 of the
Revised Code or for
any other
temporary assignment or transfer to
a facility.
(2) "Major incident" means the escape or attempted escape
of
a child who has been committed to the department of youth
services
from the facility to which the child is assigned; the
return to
the custody of the department of a child who has
escaped or
otherwise fled the custody and control of the
department without
authorization; the allegation of any sexual
activity with a child
committed to the department; physical
injury to a child committed
to the department as a result of
alleged abuse by department
staff; an accident resulting in
injury to a child committed to the
department that requires
medical care or treatment outside the
institution in which the
child is located; the discovery of a
controlled substance upon
the person or in the property of a child
committed to the
department; a suicide attempt by a child
committed to the
department; a suicide attempt by a child
committed to the
department that results in injury to the child
requiring
emergency medical services outside the institution in
which the
child is located; the death of a child committed to the
department; an injury to a visitor at an institution under the
control of the department that is caused by a child committed to
the department; and the commission or suspected commission of an
act by a child committed to the department that would be an
offense if committed by an adult.
(3) "Sexual activity" has the same meaning as in section
2907.01 of the Revised Code.
(4) "Controlled substance" has the same meaning as in
section
3719.01 of the Revised Code.
(5) "Residential care facility" and "residential facility"
have
the same meanings as in section 2151.011 of the Revised Code.
Sec. 5139.06. (A) When a child has been committed to the
department of youth services, the department shall do both of
the
following:
(1) Place the child in an appropriate institution under the
condition that it considers best designed for the training and
rehabilitation of the child and the protection of the public,
provided that the institutional placement shall be consistent
with
the order committing the child to its custody;
(2) Maintain the child in institutional care or
institutional
care in a secure facility for the required period
of
institutionalization in a manner consistent with division
(A)(1)
of section
2152.16 and divisions (A) to
(F) of section
2152.17
of
the Revised Code,
whichever are applicable, and with section
5139.38 or
division (B)
or (C) of section 2152.22 of the Revised
Code.
(B) When a child has been committed to the department of
youth services and
has not been institutionalized or
institutionalized in
a secure facility for the prescribed
minimum
period of time, including,
but not
limited to, a imposed under
division (A)(1)(b), (c), (d), or (e) of section 2152.16 of the
Revised Code, the prescribed period
of time
under division
(A)(1)(a) of section
2152.16 of the
Revised Code, or the definite
period or periods of commitment imposed under division (A), (B),
(C), or (D) of section 2152.17 of the Revised Code plus the
prescribed minimum period of time imposed under division
(A)(1)(b), (c), (d), or (e) of section 2152.16 of the Revised
Code, whichever is applicable, the
department,
the child, or the
child's parent may
request the court that
committed the child to
order a judicial
release to court supervision or
a judicial
release
to department
of youth services supervision in accordance
with division
(B) or
(C) of section 2152.22 of the Revised Code,
and
the
child may be
released from institutionalization or
institutionalization in a
secure facility in accordance with the
applicable
division. A
child in those circumstances shall
not be
released from
institutionalization or institutionalization in a
secure
facility
except in accordance with section 2152.22 or
5139.38
of the
Revised Code. When a child
is
released pursuant to
a judicial
release to court supervision under
division (B) of
section
2152.22
of the Revised Code, the
department shall comply
with
division
(B)(3) of that
section and, if
the court requests,
shall
send the
committing court a report on the child's
progress
in the
institution and recommendations for
conditions of
supervision by
the court after release. When a child is
released
pursuant to a
judicial release to
department of youth services
supervision under
division
(C) of section 2152.22
of the Revised
Code, the
department shall comply
with division (C)(3) of
that
section
relative to the child and shall send the committing court
and the
juvenile court of the county in which the child is placed
a copy
of the treatment and rehabilitation plan described in that
division and the conditions that it fixed. The
court of the
county
in which the child is placed may adopt the
conditions as
an order
of the court and may add any
additional consistent
conditions it
considers
appropriate, provided that the court may
not add
any
condition that decreases the level or degree of
supervision
specified by the department in its plan, that
substantially
increases the financial burden of supervision that
will be
experienced by the department, or that alters the
placement
specified by the department in its plan.
Any
violations of the
conditions
of the child's judicial release or
early
release shall
be handled pursuant to division
(D) of section
2152.22 of the
Revised Code.
(C) When a child has been committed to the department of
youth services, the department may do any of the following:
(1) Notwithstanding the provisions of this chapter,
Chapter
2151., or Chapter 2152. of the Revised
Code that prescribe
required periods
of institutionalization, transfer the child to
any other
state
institution, whenever it appears that the child by
reason of
mental illness, mental retardation, or other
developmental
disability ought to be in another state institution.
Before
transferring a child to any other state institution, the
department shall include in the minutes a record of the order of
transfer and the reason for the transfer and, at least seven days
prior to the transfer, shall send a certified copy of the order
to
the person shown by its record to have had the care or custody
of
the child immediately prior to the child's commitment. Except
as
provided in division (C)(2) of this section, no person
shall
be
transferred from a benevolent institution to a correctional
institution or to a facility or institution operated by the
department of youth services.
(2) Notwithstanding the provisions of this chapter,
Chapter
2151., or Chapter 2152. of the Revised
Code that prescribe
required periods
of institutionalization, transfer the child under
section
5120.162 of
the Revised Code to a correctional medical
center established by
the department of rehabilitation and
correction, whenever the
child has an illness, physical condition,
or other medical
problem and it appears that the child would
benefit from
diagnosis or treatment at the center for that
illness, condition,
or problem. Before transferring a child to a
center, the
department of youth services shall include in the
minutes a
record of the order of transfer and the reason for the
transfer
and, except in emergency situations, at least seven days
prior to
the transfer, shall send a certified copy of the order to
the
person shown by its records to have had the care or custody of
the child immediately prior to the child's commitment. If the
transfer of the child occurs in an emergency situation, as soon
as
possible after the decision is made to make the transfer, the
department of youth services shall send a certified copy of the
order to the person shown by its records to have had the care or
custody of the child immediately prior to the child's commitment.
A transfer under this division shall be in accordance with the
terms of the agreement the department of youth services enters
into with the department of rehabilitation and correction under
section 5120.162 of the Revised Code and shall continue only as
long as the child reasonably appears to receive benefit from
diagnosis or treatment at the center for an illness, physical
condition, or other medical problem.
(3) Revoke or modify any order of the department except an
order of discharge as often as conditions indicate it to be
desirable;
(4) If the child was committed pursuant to division
(A)(1)(b), (c), (d), or (e) of section
2152.16 of the Revised
Code
and has been
institutionalized or institutionalized in a
secure
facility for the prescribed
minimum periods of
time under
those
divisions the division pursuant to which the commitment was made,
assign the child to a family home, a
group care
facility, or other
place maintained under public or
private
auspices, within or
without this state, for necessary
treatment
and rehabilitation,
the costs of which may be paid by
the
department, provided that
the department shall notify the
committing court, in writing, of
the place and terms of the
assignment at least fifteen days prior
to the scheduled date of
the assignment;. A child may not be
assigned to a home, facility, or place under this division until
after the expiration of any term of commitment imposed on the
child under division (A), (B), (C), or (D) of section 2152.17 of
the Revised Code.
(5) Release the child from an
institution in accordance with
sections 5139.51 to 5139.54 of
the Revised Code in the
circumstances
described in those sections.
(D) The department of youth services shall notify the
committing court of any order transferring the physical location
of any child committed to it in accordance with section 5139.35
of
the Revised Code. Upon the discharge from its custody and
control,
the department may petition the court for an order
terminating its
custody and control.
Sec. 5139.20. (A) Notwithstanding any other provision of
the
Revised Code that sets forth the minimum periods or period
for
which a child committed to the department of youth services is to
be
institutionalized or institutionalized in a secure facility or
the procedures
for the judicial release to court supervision or
judicial release to department of youth services
supervision, the
department may grant
emergency releases to children confined in
state juvenile
institutions if the governor, upon request of the
director of the
department authorizes the director, in writing, to
issue a
declaration that an emergency overcrowding condition
exists in
all of the institutions in which males are confined, or
in all of
the institutions in which females are confined, that are
under
the control of the department. If the governor authorizes
the
issuance of a declaration, the director may issue the
declaration. If the director issues the declaration, the
director
shall
file a copy of it with the secretary of state, which copy
shall
be a public record. Upon the filing of the copy, the
department is authorized to grant emergency releases to children
within its custody subject to division (B) of this section. The
authority to grant the emergency releases shall continue until
the
expiration of thirty days from the day on which the
declaration
was filed. The director shall not issue a
declaration that an
emergency overcrowding condition exists
unless the director
determines that no other method of
alleviating the
overcrowding
condition is available.
(B)(1) If the department is authorized under division (A)
of
this section to grant emergency releases to children within
its
custody, the department shall determine which, if any,
children to
release under that authority only in accordance with
this division
and divisions (C), (D), and (E) of this section.
The department,
in determining which, if any, children to release,
initially shall
classify each child within its custody according
to the degree of
offense that the act for which the child is
serving the period of
institutionalization would have been if
committed by an adult.
The
department then shall scrutinize
individual children for
emergency
release, based upon their
degree of offense, in
accordance with
the categories and the
order of consideration set
forth in
division (B)(2) of this
section. After scrutiny of all
children
within the
particular category under consideration, the
department
shall
designate individual children within that
category to whom
it
wishes to grant an emergency release.
(2) The categories of children in the custody of the
department that may be considered for emergency release under
this
section, and the order in which the categories shall be
considered, are as follows:
(a) Initially, only children who are not serving a period
of
institutionalization for an act that would have been
aggravated
murder, murder, or a felony of the first, second, third, or fourth
degree if committed by an adult or for an act that was committed
before July 1, 1996,
and that would have been an aggravated
felony
of the first, second, or third degree if committed by an
adult may
be
considered.
(b) When all children in the category described in
division
(B)(2)(a) of this section have been scrutinized and all
children
in that category who have been designated for emergency
release
under division (B)(1) of this section have been so
released, then
all children who are not serving a period of
institutionalization
for an act that would have been aggravated
murder, murder, or a
felony of the first or second degree if committed by an
adult or
for an act that was committed before July 1, 1996, and that would
have been
an aggravated felony of the first or second
degree if
committed by an adult may be considered.
(c) When all children in the categories described in
divisions (B)(2)(a) and (b) of this section have been scrutinized
and all children in those categories who have been designated for
emergency release under division (B)(1) of this section have been
released, then all children who are not serving a term of
institutionalization for an act that would have been aggravated
murder, murder, or a felony of the first degree if committed by an
adult or
for an act that was committed before July 1, 1996, and
that would have been an aggravated felony of the first or second
degree
if
committed by an adult may be considered.
(d) In no case shall the department consider for emergency
release any child
who
is serving a term of institutionalization
for an act that would
have been aggravated murder, murder, or a
felony of the first
degree if committed by an adult or for an act
that was committed before July 1, 1996,
and that would have been
an aggravated felony
of the first degree if committed by an adult,
and in no case shall the
department grant an emergency release to
any such child pursuant to this
section.
(C) An emergency release granted pursuant to this section
shall consist of one of the following:
(1) A supervised release under
terms and conditions that the
department believes conducive to
law-abiding conduct;
(2) A discharge of the child from the custody and control
of
the department if the department is satisfied that the
discharge
is consistent with the welfare of the individual and
protection of
the public;
(3) An assignment to a family home, a group care facility,
or
other place maintained under public or private auspices,
within
or
without this state, for necessary treatment or
rehabilitation,
the
costs of which may be paid by the department.
(D) If a child is granted an emergency release pursuant to
this section, the child thereafter shall be considered to have
been institutionalized or institutionalized in a secure facility
for the
prescribed minimum period of
time under division
(A)(1)(b), (c), (d), or (e) of section
2152.16 of the Revised
Code, or divisions all definite periods of commitment imposed
under division (A)
and, (B), (C), or (D)
of section 2152.17
of the
Revised Code plus the prescribed minimum period of time imposed
under division (A)(1)(b), (c), (d), or (e) of section 2152.16 of
the Revised Code, whichever is applicable. The department
shall
retain legal custody of a
child so released until it
discharges
the child or until its
custody is terminated as
otherwise provided
by law.
(E)(1) If a child is granted an emergency release so that
the
child is released on supervised release or assigned
to a
family
home, group care facility, or other place for treatment or
rehabilitation, the
department shall prepare a written treatment
and
rehabilitation plan for the child in accordance with division
(E) of section 2152.22 of the Revised Code, which
shall
include
the
conditions of the child's release or assignment,
and shall
send
the committing court and the juvenile court of the county in
which the child is placed a copy of the plan and the
conditions
that it fixed. The court of the county in which the
child is
placed may adopt the conditions as an order of
the court and may
add any additional consistent
conditions it considers
appropriate. If a child is released on
supervised release or is
assigned subject to specified
conditions
and the court of the
county in which the child is placed has
reason to believe that the
child's deportment is not
in accordance with any post-release
conditions
established by the court in its journal entry, the
court of the county in
which the child is placed, in its
discretion, may schedule a time
for a hearing on whether the child
violated any of the
post-release conditions. If that court
conducts a hearing
and
determines at
the hearing that the child
violated any of the post-release conditions established in its
journal entry, the court,
if it determines that the violation of
the conditions
was a serious violation, may order the child to be
returned to the
department of youth services for
institutionalization or, in any
case, may make any other
disposition of the child authorized by
law that the court
considers proper. If the court of the county
in which the child
is
placed orders the child to be returned to a
department of youth
services institution, the child shall remain
institutionalized for
a minimum period of three months.
(2) The department also shall file a written progress
report
with the committing court regarding each child granted an
emergency release pursuant to this section at least once every
thirty days unless specifically directed otherwise by the court.
The report
shall include the information required of reports
described in division (F) of section 2152.22 of the
Revised
Code.
Sec. 5139.51. (A) The release authority of the department
of
youth services shall not release a child who is in the custody
of
the
department of youth services from institutional care or
institutional care in
a secure facility and shall not discharge
the child or order the child's
release on supervised release prior
to the expiration of the prescribed
minimum period of
institutionalization or institutionalization in a secure
facility
imposed under division (A)(1)(b), (c), (d), or (e) of section
2152.16 of the Revised Code, prior to the expiration of all
definite periods of commitment imposed under division (A), (B),
(C), or (D) of section 2152.17 of the Revised Code plus the
prescribed minimum period of time imposed under division
(A)(1)(b), (c), (d), or (e) of section 2152.16 of the Revised
Code,
or prior to the child's attainment of twenty-one
years of
age,
whichever is applicable under the order of commitment, other
than
as is
provided in section 2152.22 of
the Revised Code. The
release
authority may conduct periodic reviews of the case of
each
child who is in the custody of the department and who is eligible
for
supervised release or
discharge after completing the minimum
period of time or period of time in
an institution prescribed by
the committing court. At least thirty days
prior to conducting a
periodic review of the case of a child who was
committed
to the
department regarding the possibility
of supervised release or
discharge and at least thirty days prior to
conducting a release
review, a release hearing, or a discharge review
under division
(E) of this section,
the release authority shall give notice of
the review or hearing to the
court
that committed the child, to
the prosecuting attorney in the
case, and to the victim of the
delinquent act for which the child
was committed or the victim's
representative. If a child is on supervised
release and has had
the child's parole revoked, and if, upon release, there is
insufficient time to provide the notices otherwise required by
this division,
the release authority, at least ten days prior to
the child's release, shall
provide reasonable notice of the
child's release to the court that committed
the child, to the
prosecuting attorney in the case, and to the victim of the
delinquent act for which the child was committed or the victim's
representative.
The
court or prosecuting attorney
may submit to
the release authority written comments regarding, or written
objections to, the supervised release or discharge of that child.
Additionally, if the child was committed for an act that
is a
category one or category two offense, the court or
prosecuting
attorney orally may communicate to a representative of the release
authority comments regarding,
or objections to, the supervised
release or discharge of the
child or, if a
hearing is held
regarding the possible release or discharge of
the child, may
communicate those comments at the hearing.
In
conducting the
review of the child's case regarding the possibility of
supervised
release or discharge, the release authority shall
consider any
comments and objections so submitted
or communicated by the court
or prosecutor and any
statements or comments submitted or
communicated under section
5139.56 of the Revised Code by a victim
of an act for
which the child was committed to the legal custody
of the
department or by the victim's representative of a victim of
an act of that
type.
The release authority shall determine the date on which a
child may be
placed on supervised release or discharged.
If the
release authority believes that a child should be
placed on
supervised release, it shall comply with division
(B) of this
section. If the
release authority believes that a child should be
discharged, it
shall comply with division (C)
or (E) of this
section. If the
release authority
denies the supervised release
or
discharge of a child, it shall provide the
child with a written
record of the reasons for the
decision.
(B)(1) When the release authority decides to place a
child
on
supervised
release,
consistent with division (D) of
this
section,
the department shall prepare a written
supervised
release plan
that specifies the terms and conditions upon which
the child is
to
be released from an institution on supervised
release and, at
least thirty days prior to the release of the
child on the
supervised release, shall send to the committing
court and the
juvenile court of the county in which the child will
be placed a
copy of the supervised release plan and the terms and
conditions
of release. The juvenile court of the county in
which
the
child
will be placed, within fifteen days after its receipt
of
the copy
of the supervised release
plan, may add to the supervised
release
plan any additional
consistent terms and conditions it
considers
appropriate,
provided that the court may not add any
term or
condition that
decreases the level or degree of
supervision
specified by
the release authority in the plan, that
substantially
increases the
financial burden of supervision that
will be
experienced by the
department of youth services, or that
alters
the placement
specified by the plan.
If, within fifteen days after its receipt
of the copy of the
supervised release plan, the
juvenile court of the county in which
the child will be placed
does not add to the supervised release
plan
any additional terms and conditions, the court shall enter
the
supervised release plan in its journal
within that fifteen-day
period and, within that fifteen-day period, shall send
to the
release authority a copy of the journal entry of the supervised
release
plan. The journalized plan shall apply regarding the
child's
supervised release.
If, within fifteen days after its
receipt of the copy of the
supervised
release plan, the juvenile court of the county in which
the
child will be placed adds to the supervised
release plan any
additional terms and conditions, the court
shall enter the
supervised release plan and the
additional
terms and conditions in
its journal
and, within that fifteen-day period, shall send to the
release
authority a copy of the journal entry of the supervised
release plan and
additional terms
and conditions. The
journalized
supervised release plan and
additional terms and conditions added
by the
court that satisfy the criteria described in this division
shall apply
regarding the child's supervised release.
If, within fifteen days after its receipt of the copy of
the
supervised release plan, the juvenile court of the county in
which
the child will be placed neither enters in its journal the
supervised release plan nor enters in its
journal the supervised
release plan plus
additional terms and conditions added by the
court, the court and the
department of youth services may attempt
to resolve any differences regarding
the plan within three days.
If a resolution is not reached within that
three-day period,
thereafter, the
supervised release plan shall be enforceable to
the
same extent as if the
court actually had
entered the
supervised release plan in its
journal.
(2) When the release authority
receives from the court a
copy
of the journalized supervised release plan
and, if
applicable, a
copy of the journalized additional terms and
conditions
added by
the court, the release authority shall
keep
the original copy or
copies in the
child's file and shall provide
a copy of each
document to
the child, the employee of the
department who is
assigned to
supervise and assist the child while
on release, and
the committing
court.
(C) If a child who is in the custody of the department of
youth services was committed pursuant to division
(A)(1)(b), (c),
(d), or (e) of
section
2152.16 of the Revised Code and has been
institutionalized or institutionalized in a secure facility for
the prescribed minimum periods period of time under whichever of
those divisions the child was committed or was committed to the
custody of the department pursuant to both division (A), (B), (C),
or (D) of section 2152.17 of the Revised Code and division
(A)(1)(b), (c), (d), or (e) of section 2152.16 of the Revised Code
and has been institutionalized or institutionalized in a secure
facility for all of the definite periods of commitment imposed
under division (A), (B), (C), or (D) of section 2152.17 of the
Revised Code plus the prescribed minimum period of time imposed
under division (A)(1)(b), (c), (d), or (e) of section 2152.16 of
the Revised Code, whichever is applicable, and
if the release
authority is satisfied that the discharge of the
child without the
child being placed on supervised release would
be consistent with
the welfare of the child and protection of
the
public, the release
authority, without approval
of the court
that
committed the child,
may discharge the child from the
department's
custody and control
without placing the child on
supervised
release. Additionally, the
release authority may
discharge a child in the department's
custody
without the child
being placed on supervised release if
the child is removed
from
the jurisdiction of this state by a
court order of a court of this
state, another state, or the United
States, or
by any agency of
this state, another state, or the
United
States, if the child is
convicted of or pleads guilty to
any criminal
offense, or as
otherwise provided by law. At
least
fifteen days before the
scheduled date of
discharge of the child
without the child being
placed on
supervised release, the
department shall notify the
committing
court, in writing, that it
is going to discharge the
child and of the reason
for the
discharge.
Upon discharge of the
child without the child being
placed on
supervised release, the
department immediately shall
certify the
discharge in writing and
shall transmit the
certificate of
discharge to the committing
court.
(D) In addition to
requirements that are reasonably related
to the child's prior
pattern of criminal or delinquent behavior
and the prevention of further
criminal or delinquent behavior, the
release authority shall specify the
following requirements for
each child whom it releases:
(1) The child shall observe the law.
(2) The child shall maintain appropriate contact, as
specified in the written supervised release plan for
that child.
(3) The child shall
not change residence unless the child
seeks prior approval
for the change from the employee of the
department assigned to supervise
and
assist the child, provides
that
employee, at the time the child seeks the prior approval for
the change,
with appropriate information regarding
the new
residence address at which the child wishes to
reside, and obtains
the prior approval of that employee for the change.
(E) The period of a
child's supervised release may extend
from the date of release
from an institution until the child
attains twenty-one years
of age. If the
period of supervised
release extends beyond one
year after the date of release, the
child may request in
writing that the release authority conduct a
discharge review
after the expiration of the one-year period or
the minimum
period or period. If the child so requests, the
release authority shall
conduct a discharge review and give the
child its decision in
writing. The release authority shall not
grant a discharge prior to the
discharge date if it finds good
cause for retaining the child in
the custody of the department
until the discharge date. A child
may request an additional
discharge review six months after the
date of a previous discharge
review decision, but not more than
once during any six-month
period after the date of a previous
discharge review decision.
(F) At least two weeks before the release authority places
on
supervised
release or discharge a child who was
committed to
the
legal custody of the department, the
release authority shall
provide notice of the release or
discharge as follows:
(1) In relation to the placement on supervised release or
discharge of
a
child who was committed to the department for
committing an act
that is a category one or category two offense,
the release authority shall
notify, by
the specified deadline, all
of the following of the release or
discharge:
(a) The prosecuting attorney of the county in which the
child
was
adjudicated a delinquent child and committed to the
custody of
the
department;
(b) Whichever of the following is applicable:
(i) If upon the supervised release or discharge the child
will
reside in a municipal corporation, the chief of police or
other chief law
enforcement officer of that municipal corporation;
(ii) If upon the supervised release or discharge the child
will
reside in an unincorporated area of a county, the sheriff of
that county.
(2) In relation to the placement on supervised release or
discharge of a child who was committed to the department for
committing any act, the release authority shall notify, by the
specified deadline,
each victim of the act for which the child was
committed to the legal custody of the department who, pursuant
to
section 5139.56 of the
Revised Code, has requested to be
notified
of the placement of the child on supervised release or
the
discharge of the child, provided that, if any victim
has
designated a person pursuant to that section to act on the
victim's behalf as a victim's representative, the notification
required by this division shall be provided to that victim's
representative.
Section 2. That existing sections 2151.23, 2151.31,
2151.314, 2152.02,
2152.021, 2152.10, 2152.12, 2152.13, 2152.14,
2152.17,
2152.22, 5139.01, 5139.05, 5139.06, 5139.20, and 5139.51
and section 2152.11 of the
Revised Code are hereby repealed.
Section 3. The amendments to sections 2151.23, 2151.31,
2151.314, 2152.02,
2152.021, 2152.10, 2152.12, 2152.13, 2152.14,
2152.17,
2152.22,
5139.01, 5139.05, 5139.06, 5139.20, and
5139.51 and the repeal of
section 2152.11 of the
Revised Code
made in Sections 1 and 2 of
this act apply only to a
child who
is charged with an act that
allegedly was committed on
or after
the effective date of this
act. The versions of sections
2151.23, 2151.31, 2151.314,
2152.02, 2152.021, 2152.10, 2152.11,
2152.12, 2152.13,
2152.14,
2152.17, 2152.22, 5139.01, 5139.05,
5139.06, 5139.20, and
5139.51
of the Revised Code in effect
immediately prior to the
effective
date of this act apply to a
child who is charged with an
act that
allegedly was committed
prior to the effective date of
this act.
Section 4. Section 2151.23 of the Revised Code is
presented
in
this act as a composite of the section as amended by
both Am.
Sub. H.B. 214 and Am. Sub. S.B. 10 of
the 127th General
Assembly.
The General Assembly, applying the
principle stated in
division
(B) of section 1.52 of the Revised
Code that amendments
are to be
harmonized if reasonably capable of
simultaneous
operation, finds
that the composite is the resulting
version of
the section in
effect prior to the effective date of
the section
as presented in
this act.
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