AGO 1993-079.

• Case Date: December 30, 1993
• Court: Ohio

Ohio Attorney General Opinions 1993. AGO 1993-079. December 30, 1993OPINION NO. 1993-079Geno Natalucci-Persichetti, Director Department of Youth Services51 North High Street Columbus, Ohio 43266-0582Dear Director Natalucci-Persichetti: You have requested an opinion regarding the provisions of R.C. 2151.38 governing the early release of children who have been committed to the Department of Youth Services (DYS) for institutionalization pursuant to an adjudication of delinquency. Specifically, you ask:Pursuant to R.C. 2151.355(A)(4)-(6), a juvenile court may commit a child to the legal custody of DYS for institutionalization when the child has been adjudicated delinquent for committing an act that would be a felony if committed by an adult. Specifically, these divisions of R.C. 2151.355 state:

(A) If a child is found by the court to be a delinquent child, the court may make any of the following orders of disposition:

....

(4) If the child was adjudicated delinquent by reason of having committed an act that would be an aggravated felony of the third degree or a felony of the third or fourth degree if committed by an adult, commit the child to the legal custody of the department of youth services for institutionalization for an indefinite term consisting of a minimum period of six months and a maximum period not to exceed the child's attainment of the age of twenty-one years;

(5) If the child was adjudicated delinquent by reason of having committed an act that would be an aggravated felony of the first or second degree or a felony of the first or second degree if committed by an adult, commit the child to the legal custody of the department of youth services for institutionalization in a secure facility for an indefinite term consisting of a minimum period of one year and a maximum period not to exceed the child's attainment of the age of twenty-one years;

(6) If the child was adjudicated delinquent by reason of having committed an act that would be the offense of murder or aggravated murder if committed by an adult, commit the child to the legal custody of the department of youth services for institutionalization in a secure facility until the child's attainment of the age of twenty-one years.... (Emphasis added.)

Thus, R.C. 2151.355 requires that a child committed to DYS for institutional care must be institutionalized for a minimum of six months, one year, or until age twenty-one depending on which division of R.C. 2151.355 is applicable. See also R.C. 5139.05(A); R.C. 5139.06(A) (requiring DYS to place and maintain children in a manner consistent with R.C. 2151.355).

B. R.C. 2151.38(A): Limitation on Juvenile Court Jurisdiction

Once a child has been committed to DYS, the juvenile court's jurisdiction is limited as provided in R.C. 2151.38(A), which states in pertinent part:

When a child is committed to the legal custody of the department of youth services, the jurisdiction of the juvenile court with respect to the child so committed shall cease and terminate at the time of commitment, except as provided in divisions (B) and (C) of this section and in section 5139.38 of the Revised Code and except that, if the department of youth services makes a motion to the court for the termination of permanent custody, the court upon the motion, after notice and hearing and for good cause shown, may terminate permanent custody at any time prior to the child's attainment of age eighteen. (Emphasis added.)

See also R.C. 5139.05(B) (stating that the court's jurisdiction terminates at commitment and describing the exceptions thereto). R.C. 2151.38(A) thus provides that the jurisdiction of the juvenile court with respect to a child committed to DYS terminates at the time of commitment with only four exceptions. Any action by the juvenile court subsequent to the commitment of a child to DYS must be taken in accordance with one of these exceptions. See Clark v. Hamilton County Dept. of Human Services, No. C-850187, slip op. at 4 (Ct. App. Hamilton County, March 12, 1986) (unreported) (holding that R.C. 2151.38(A) does not grant the juvenile court jurisdiction to consider a motion for termination of permanent custody filed by a parent rather than the custodial agency).(fn1) Two of the exceptions to termination of the juvenile court's jurisdiction are not relevant to your questions. R.C. 5139.38 is a recently enacted statute that gives DYS authority to transfer a felony delinquent from an institution to a community facility within the ninety days prior to the expiration of the prescribed minimum period of institutionalization. DYS must notify the committing court of the transfer, but R.C. 5139.38 does not provide that the court must approve the transfer. See 1993 Ohio Legis. Bull. 202, 584 (Anderson) (Am. Sub. H.B. 152, eff. July 1, 1993). The exception with respect to termination of permanent custody involves complete termination of DYS' custody of a child rather than release from institutional care.(fn2) The jurisdiction of the juvenile court with respect to the release of a child from institutional care, therefore, is limited to that provided in R.C. 2151.38(B) and (C), which are the statutory provisions dealing with such a release.

C. R.C. 2151.38(B): Early Release before Expiration of Minimum Period

R.C. 2151.38(B)(1) provides that DYS shall not release a child committed pursuant to R.C. 2151.355(A)(4)-(5) "prior to the expiration of the prescribed minimum periods of institutionalization," or a child committed under R.C. 2151.355(A)(6) prior to age twenty-one, except as provided in R.C. 5139.38 or unless DYS, the child, or the child's parent "requests an early release ... from the court that committed the child and the court approves...