Opinion
22A-JV-2020
03-08-2023
J.C., Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff.
ATTORNEY FOR APPELLANT Ryan D. Bower Bower Law Office, LLC Salem, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Kelly A. Loy Assistant Section Chief for Criminal Appeals Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Washington Circuit Court The Honorable Larry W. Medlock, Judge Trial Court Cause Nos. 88C01-2110-JD-154, 88C01-2202-JD-42
ATTORNEY FOR APPELLANT
Ryan D. Bower Bower Law Office, LLC Salem, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita Attorney General of Indiana
Kelly A. Loy Assistant Section Chief for Criminal Appeals Indianapolis, Indiana
MEMORANDUM DECISION
Brown, Judge
[¶1] J.C. appeals the juvenile court's order committing him to the Indiana Department of Correction (the "DOC"). We affirm.
Facts and Procedural History
[¶2] On October 6, 2021, the State filed a Petition Alleging Delinquency under cause number 88C01-2110-JD-154 ("Cause No. 154"). Specifically, the State alleged that J.C. committed acts which, if committed by an adult, would constitute residential entry as a level 6 felony. On October 8, 2021, the court entered an Order on Detention Hearing which found probable cause existed to believe J.C. was a delinquent child, ordered that he be detained, and stated "[d]etention is essential to protect the child or the community." Appellant's Appendix Volume II at 196. It also found J.C. had "shown that he is a danger to the peace and dignity of the community and his parents." Id. at 197 (italics omitted).
[¶3] On November 3, 2021, the court held a hearing. That same day, the court entered a Dispositional Order which found J.C. made an admission, ordered that he be released to his mother, placed him under the supervision of the Washington County Probation Department, and ordered him to comply with the rules of formal probation. On December 15, 2021, the court entered an Agreed Order for Youth Villages to Provide Intensive In Home Services.
The record includes a transcript of only the July 20, 2022 hearing.
[¶4] On January 3, 2022, Christopher & Associates Evaluation & Counseling Center, Inc., filed a Psychological Evaluation which recommended in part:
In regard to level of services needed for [J.C.], it is believed that [he] will require intensive intervention consisting of individual therapy, family therapy, medication management, and possibly case management. Given that [J.C.'s] inappropriate behaviors have continued to escalate since he has been placed on probation, it is likely that he will require residential placement. He has demonstrated a disregard for the law and violated the rights of others multiple times within the last several months. Since formal probation did not serve to change his behavior, a more intensive level of services/intervention will likely be required.Id. at 123.
[¶5] On February 10, 2022, the State filed a Petition Alleging Delinquency under cause number 88C01-2202-JD-42 ("Cause No. 42") alleging that J.C. committed acts which, if committed by an adult, would constitute neglect of a dependent as a level 6 felony. The State asserted that J.C. "was in care of a dependent, whether assumed voluntarily or because of legal obligation, who knowingly or intentionally abandoned the dependent." Id. at 137. On February 14, 2022, the State filed an Amended Petition alleging that J.C. committed acts, which if committed by an adult, would constitute criminal mischief as a class A misdemeanor. Specifically, the State alleged J.C. recklessly damaged or defaced his mother's property without her consent.
[¶6] Meanwhile, on February 10, 2022, the State filed an Amended Verified Petition for Modification of Dispositional Decree under Cause No. 154 alleging that:
J.C. had committed acts in school that violated the school's behavioral policy resulting in suspension; J.C. violated his curfew on November 20, 2021; Washington High School reported on January 25, 2022, that, "[o]f the 9 days we have been in person learning he has been here 1 full day, showed up late to school 3 days, has 4 unexcused absences and 1 parent call in" and "[h]e continually comes in unprepared and does little to no work"; the State charged J.C. with battery as a class B misdemeanor on January 26, 2022; the sheriff's department was dispatched to J.C.'s residence in reference to him refusing to go to school on February 1, 2022, and a deputy transported him to school; on February 2, 2022, the probation officer completed a home visit after learning J.C. was not at school, J.C. was asleep at home, and he was transported to school; and the State charged J.C. with neglect of a dependent as a level 6 felony on February 10, 2022. Id. at 132. On February 23, 2022, the State filed a Second Amended Verified Petition for Modification of Dispositional Decree which alleged: "On February 10th, 2022 new charges were filed against the juvenile in the Washington Circuit Court. On February 16th, 2022 the charges were amended to Criminal Mischief, a Class B Misdemeanor." Id. at 67 (bold omitted). The State also requested the court to order a Writ of Attachment for J.C. and stated, "[s]ince being placed on formal probation on November 3rd, 2021, he has had two delinquent cases filed against him" and "[a]t this time [J.C.'s] location is unknown." Id. at 68.
[¶7] On March 16, 2022, the court held a hearing and entered an order under Cause Nos. 154 and 42. With respect to Cause No. 42, the court found a factual basis was established and advised J.C. to follow the conditions of release, report to probation, continue online schooling, and abide by his curfew. It also stated: "Parties advise they are looking into possible Residential Treatment." Id. at 135. Under Cause No. 154, the court found that J.C. admitted to the violation and released him to his mother. Under the heading "Probable Cause," the order stated: "The court orders and the parties agree that [J.C.] shall be released to the custody of his Mother and that it is in the best interest of the child at this time." Id. (capitalization omitted). Under the heading "IVE and Statutory Findings," the order stated: "[J.C.] is released to his Mother pending possible residential treatment and Dispositional Hearing. The Court Orders In Home Services be placed in the home prior to the Dispositional Hearing." Id. The order also stated: "The Court finds responsibility for the placement and care of the child is ordered or continues to be ordered to the probation department of Washington county." Id. at 136 (capitalization and bold omitted). The court scheduled a dispositional hearing for April 20, 2022.
[¶8] On April 1, 2022, the State filed a Predispositional Report which recommended wardship be granted to the Indiana Boys School for an indeterminate sentence. On April 14, 2022, J.C. filed a Motion for Continuance in Cause Nos. 154 and 42. The court granted the motion.
[¶9] On July 20, 2022, the court held a hearing under Cause Nos. 154 and 42. Carrie Dennis, an employee of the Washington County Probation Department, testified that J.C.'s primary probation officer, Keith Barry, was on vacation, she and Officer Barry maintained a common system, and Officer Barry briefed her on the happenings in the case. Dennis stated:
[Officer Barry] had spoke with Southwest about residential, they have declined to have him in their residential facility. Um, based on facts that happened while he was detained in Dickinson County. [S]ince the April 1st [] predispositional report was done, [J.C.] has gotten in trouble a few more times. [O]n April 16th, Salem Police were called about a fight at Riley's Place in Salem. Um, May 25th, Clark County was dispatched on two different occasions in reference to [J.C.] being uncooperative and incorrigible with the reasonable request of his sister [] who is [sic] acting as his guardian at that time. July 8th Salem Police Department again was dispatched to a convenient [sic] store in Salem in reference to juvenile's [sic] who were at loitering and supposedly stole an energy drink from the store, um, July 11threceived notice from Southwest that they were unable to accept him into the residential facility.Transcript Volume 2 at 4. When asked if "the only placement option available that you guys have determined is Department of Corrections," Dennis answered affirmatively. Id.
[¶10] On cross-examination, Dennis indicated that the January 2022 psychological evaluation recommended that J.C. "would require residential placement." Id. at 6. When asked if she had been able to find any residential placement for J.C. other than the DOC, she answered: "The only thing that I'm aware of, like I said, I am not the officer in this case, the only residential that I am aware of is Southwest and they've declined." Id. She also testified that the report recommended a psychiatric consult for medication but she did not know whether J.C. had one.
[¶11] J.C. stated:
I know what I've done is wrong, but I don't have any excuse because I was in the wrong for it. But I'm asking for anything other than DOC, just for someone to try to find a residential stay because I, I don't want to live that life, I don't even wanna (sic) be in that predicament. So, all I'm asking is just to try to find some other option and uh I, I tried really hard this month, I know I got two police reports after - since April 1st and the first one because I wasn't being cooperative with my, with my sister and the Clark County police had to come and me and my sister already have everything figured out, we're fine now . . . . On July 8th . . . we were accused of stealing that energy drink and the police officers that came, had came and they had looked back at the cameras in Sunoco, besides that's where I got trespassed from, and they'd seen that there was no energy drink stolen, I had put it back. I don't know if that was in the report, but, that is what happened, sir. And I, I just, I want to like be in life for it and I don't want to miss that, but I understand that because of what I've done I have to have a consequence for that. But I just, I really don't want to go to DOC.Id. at 8.
[¶12] The court stated:
[J.C.], a while back I thought about putting you in detention, and I didn't, because you and I had a conversation and you told me that you were going to do better, you were going to change your ways and have a different attitude and outlook and I don't see that that happened.
* * * * *
When you don't do the things you promised me to do, you leave me no options. You leave me no options. Well your past behavior, you could've gone to Southwest, the residential placement, but because of the way behaved [sic] in the past, they won't take you. I have no option. An indeterminate sentence to the Indiana Department of Corrections Boys School. I have no other options. You chose the life, you say you don't want to live it, but you chose it and you continue to choose it each and every day it seems like. You can stay home, you don't have to associate with the people that you associate with, you don't have to go to the places you go to, you don't have to get into fights, you can behave yourself. It's your choice. You made it. You're going to have to live with the consequences.Id. at 8-9.
[¶13] On July 21, 2022, the court entered a Dispositional Order under Cause Nos. 154 and 42 awarding wardship of J.C. to the DOC for housing in any correctional facility for children.
Discussion
[¶14] J.C. asserts the juvenile court abused its discretion in awarding wardship to the DOC. He argues there was no evidence that other less restrictive options were considered and the juvenile court did not give proper weight to the psychological evaluation. He also asserts that no predispositional report was filed prior to the hearing, acknowledges that he failed to object to the lack of a predispositional report, and asserts fundamental error.
[¶15] The juvenile court is given wide latitude and great ¶exibility in determining the disposition of a delinquent child. D.A. v. State, 967 N.E.2d 59, 65 (Ind.Ct.App. 2012). However, its discretion is circumscribed by Ind. Code § 31-37-18-6, which provides that, "[i]f consistent with the safety of the community and the best interest of the child," the juvenile court shall enter a dispositional decree that is "in the least restrictive (most family like) and most appropriate setting available" and "close to the parents' home, consistent with the best interest and special needs of the child"; least interferes with family autonomy; is least disruptive of family life; imposes the least restraint on the freedom of the child and the child's parent, guardian, or custodian; and provides a reasonable opportunity for participation by the child's parent, guardian, or custodian. Under the statute, placement in the least restrictive and most appropriate setting available applies only "[i]f consistent with the safety of the community and the best interest of the child." J.D. v. State, 859 N.E.2d 341, 346 (Ind. 2007) (citing Ind. Code § 31-37-18-6). We review the juvenile court's disposition for an abuse of discretion. R.H. v. State, 937 N.E.2d 386, 388 (Ind.Ct.App. 2010).
[¶16] The record reveals that the State filed its Petition Alleging Delinquency under Cause No. 154 on October 6, 2021. On November 3, 2021, the court ordered that J.C. be released to his mother under the supervision of the Washington County Probation Department. The January 3, 2022 psychological evaluation stated that J.C.'s inappropriate behaviors had continued to escalate since he had been placed on probation. In February 2022, the State filed a Petition Alleging Delinquency under Cause No. 42 and later filed an amended petition. Following a hearing on March 16, 2022, the court again released J.C. to his mother. Despite his assertion that no predispositional report was filed, the State filed a predispositional report on April 1, 2022, which stated: intensive in-home services had been referred but were "struggling with meeting the required amount of times due to cancellations by the family"; J.C. was "released on terms and conditions of release on 3/16/2022 and there has been another incident on 3/29 where the juvenile battered three people"; and J.C. "continues to break the law when he is out in the community." Appellant's Appendix Volume II at 62. It also said that the "Director of Dickinson Juvenile Detention Center stated that residential should not be considered based on his discipline there" and that J.C. "needs to be sent to Indiana Boys School." Id. at 61. The probation officer recommended wardship to the Indiana Boys School for an indeterminate sentence. At the July 20, 2022 hearing, Dennis testified that Southwest declined to have J.C. in its residential facility and J.C. had "gotten in trouble a few more times" since the April 1st predispositional report. Transcript Volume 2 at 4. When asked if "the only placement option available that you guys have determined is Department of Corrections," Dennis answered affirmatively. Id. The juvenile court stated that J.C. left it no options.
As noted by the State, J.C. filed a Motion for Continuance in Cause Nos. 154 and 42 on April 14, 2022, and the court granted the motion.
[¶17] Based upon the record, we conclude that the court's ordered placement is consistent with J.C.'s best interests and the safety of the community and find no abuse of discretion. See D.E. v. State, 962 N.E.2d 94, 97 (Ind.Ct.App. 2011) (holding the juvenile court did not abuse its discretion in placing D.E. in a DOC facility where earlier attempts to rehabilitate his behavior were unsuccessful).
[¶18] For the foregoing reasons, we affirm the juvenile court.
[¶19] Affirmed.
Bailey, J., and Weissmann, J., concur.