Opinion
23A-JV-2913
06-13-2024
Z.A., Appellant-Respondent v. State of Indiana, Appellee-Petitioner
ATTORNEY FOR APPELLANT Victoria Bailey Casanova Casanova Legal Services, LLC Indianapolis, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General Nicole D. Wiggins Deputy Attorney General 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Knox Superior Court The Honorable Gara U. Lee, Judge Trial Court Cause No. 42D01-2309-JD-84
ATTORNEY FOR APPELLANT Victoria Bailey Casanova Casanova Legal Services, LLC Indianapolis, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General Nicole D. Wiggins Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
Vaidik, Judge.
Case Summary
[¶1] Z.A. appeals his commitment to the Indiana Department of Correction (DOC) following a juvenile-delinquency adjudication. We affirm.
Facts and Procedural History
[¶2] Z.A. was born in Bulgaria in 2007 and was abandoned by his parents when he was two. Z.A., his twin brother O.A., and his three sisters were sent to a Bulgarian orphanage where they were reportedly sexually abused. The record is contradictory, but when Z.A. was between five and nine years old, he and his siblings were adopted by a couple in Bloomington.
[¶3] Shortly after his adoption, Z.A.'s adoptive father was admitted to a long-term mental-health facility because of alcohol abuse and mental-health problems. Z.A.'s adoptive mother became physically abusive toward Z.A. and his siblings.
[¶4] The Indiana Department of Child Services (DCS) became involved with the family in August 2019, when Z.A. was twelve years old, after allegations surfaced that Z.A. and O.A. were engaging in sexual activity with their sisters. Z.A. and O.A. were removed from their adoptive parents (who later relinquished their parental rights to them), and Z.A. was found to be a child in need of services (CHINS). Z.A. also received a juvenile referral, but instead of delinquency proceedings, Z.A. was placed in a sexually maladaptive program at Youth Opportunity Center (YOC), a secure residential-treatment facility, in September 2019. While at YOC, Z.A. received another juvenile referral for battery on a public-safety official after he allegedly assaulted three YOC staff members.
[¶5] Z.A. completed the YOC program in April 2021 and was placed at Open Arms HEbron Home, where he stayed for six months. In October, Z.A. was placed in foster care in South Bend. Z.A. was then suspended from school three times over a four-month period for fighting. In March 2022, Z.A. was removed from foster care and returned to Open Arms HEbron Home. One month later, however, Z.A. was removed for running away.
[¶6] From April to May 2022, Z.A. was placed at an emergency shelter. After an acute stay at Bloomington Meadows Hospital, Z.A. was placed at Childplace in June. While there, Z.A. received individual therapy, group therapy, and medication management and was diagnosed with Mild Intellectual Disorder, ADHD, PTSD, Persistent Depressive Disorder, and Oppositional Defiant Disorder. He also had two hospital stays for self-harming behavior and four juvenile referrals (three for battery). After a nine-month stay at Childplace, Z.A. was placed with a foster father in Vincennes in March 2023.
[¶7] In May 2023, the State filed a petition alleging that Z.A. was a delinquent child for committing what would be Class A misdemeanor criminal trespass if committed by an adult. See Cause No. 42D01-2307-JD-61. Z.A. was returned to his foster father and placed on GPS monitoring. In September, Z.A. got into a fight at school and struck two other juveniles several times, causing them bodily injury. The State filed a second petition alleging that Z.A. was a delinquent child for committing what would be Level 6 felony battery and Class A misdemeanor battery if committed by an adult. See Cause No. 42D01-2309-JD-84. Z.A. was placed in secure detention, where he remained at the time of the dispositional hearing.
[¶8] Z.A. later admitted committing trespass in JD-61 and both counts of battery in JD-84. A dispositional hearing covering both cause numbers was held over three days in October and November 2023. The State recommended that Z.A., then sixteen, be placed in the DOC. Probation officer Alissa Ricker testified that since the age of twelve, Z.A. had been placed in several residential facilities, yet he continued to receive juvenile referrals and struggle following rules. Ricker recommended that Z.A. be committed to the DOC, asserting that probation had exhausted "all of the dispositional alternate options [they] could give him." Tr. p. 104. Ricker believed that the DOC was the most appropriate placement for Z.A. because it has school and several treatment and therapy programs, including mental-health treatment. The DOC also teaches independent living skills and "make[s] sure that they've got a good placement to go to when they're released." Id. at 112.
[¶9] DCS disagreed with the State's recommendation. Corina Harmless, Z.A.'s DCS family case manager (FCM) for the past year, testified that Z.A. had experienced trauma in his life and expressed concern that a DOC placement "would just provide additional trauma to him." Id. at 119. FCM Harmless said that being placed back with his foster father in Vincennes was no longer an option so she had looked into other placements. She acknowledged that Z.A. had been rejected from an emergency shelter in Vigo County (her first choice).
However, she had found a non-secure emergency shelter in Gary that would accept him for twenty-one days until DCS could find another placement. DCS, however, didn't have another placement lined up.
[¶10] Alan Kosinski, Z.A.'s court-appointed special advocate (CASA) since DCS got involved with the family in 2019, said the DOC was "the wrong placement" for Z.A. because he "needs continued therapeutic help" "in a wraparound placement." Id. at 167, 172.
[¶11] The trial court took a fifty-minute recess to consider its decision and then ruled as follows:
I understand you've had a history of trauma and that's going to impact that, but we can't change that. You can't change that. You can decide how you move forward. You're 16 and a half. With regards to Probation and that side of juvenile things, that only gives us about a year and a half left with you. I want to see you be successful. I don't want to see you back in front of me or some other judge as an adult criminal. I want you to get the help that you need so that you can be successful going forward. That being said, there have been a number of services provided to you, either by DCS or through Probation: in-home services, electronic monitoring. Even though you didn't get yourself in trouble while you were on the monitor, there were further things that happened that bring us here today. You've been in residential treatment. Again, we're still here today.
While he doesn't have prior adjudications, I would surmise that much of that is because DCS was involved. We see that often.
The attempt there is because DCS is involved and able to provide those services, a decision is made that DCS is the one to better address those. If it were a child who weren't in DCS care, likely an adjudication would've been had, and the child moved forward with services to be provided through Probation.
At this point, I think that and will decide that he be placed in the Department of Corrections in JD084. As to JD061, I'm going to order time served, no further. I mean, if he's going to DOC on the JD084, there's no point in making a similar adjudication in that criminal trespass case. Had it just been that case, I wouldn't be making that decision here today. But when other children are being injured, that certainly plays a role in my decision.
* * * *
You know, had there been a more specific plan of a residential treatment, something else, I might've considered that, but the unknown of sending him to an emergency shelter program, I simply wasn't comfortable with.
As indicated, he's been in secure detention for 50-some days. I want him to get treatment as soon as possible. I want him to get the education as soon as possible. I want all of that to occur. So again, [Z.A.] I hope you move forward from this decision. Not saying that dang judge, I didn't deserve this. You need to take advantage of what you're going to receive in DOC, the treatment available. And things are truly in your hand. Again, you could be there six months, nine months, 12 months. In theory, you could be there until you're 21 years of age. But that is up to you and the decisions you make and how you move forward.Id. at 191-93.
[¶12] Z.A. now appeals.
Discussion and Decision
[¶13] Z.A. contends the trial court shouldn't have placed him in the DOC. The disposition of a juvenile adjudicated a delinquent is within the discretion of the trial court and is reviewed on appeal for an abuse of discretion. J.S. v. State, 881 N.E.2d 26, 28 (Ind.Ct.App. 2008). The court's discretion is subject to Indiana Code section 31-37-18-6:
If consistent with the safety of the community and the best interest of the child, the juvenile court shall enter a dispositional decree that:
(1) is:
(A) in the least restrictive (most family like) and most appropriate setting available; and
(B) close to the parents' home, consistent with the best interest and special needs of the child;
(2) least interferes with family autonomy;
(3) is least disruptive of family life;
(4) imposes the least restraint on the freedom of the child and the child's parent, guardian, or custodian; and
(5) provides a reasonable opportunity for participation by the child's parent, guardian, or custodian.
The statute favors the least harsh placement only if "consistent with the safety of the community and the best interest of the child." J.S., 881 N.E.2d at 29. The statute recognizes that a more restrictive placement is sometimes in the best interest of the child. Id.
[¶14] Z.A. argues the trial court "failed to give adequate consideration to the scope of the trauma [he] has experienced and the recommendations of [his] family case manager and CASA as to [his] unique needs." Appellant's Br. p. 11. The problem with Z.A.'s argument is that the court twice expressly acknowledged the trauma that Z.A. has experienced: during the hearing and when announcing its decision. See Tr. p. 139 ("I don't think anybody in this room disputes that . . . he's had a very rough life."), 191 ("I understand you've had a history of trauma ...."). And when announcing its decision, the court stated that it had "considered the testimony of witnesses," which included the probation officer, the FCM, and the CASA. Id. at 191. Z.A.'s argument, therefore, is a request for us to reweigh the evidence, which we cannot do. See J.S. v. State, 110 N.E.3d 1173, 1175 (Ind.Ct.App. 2018), trans. denied.
[¶15] Although this was no doubt a close call and a decision that the trial court struggled with, see Tr. p. 191 ("These are never easy decisions and I certainly do struggle with them."), given the evidence in the record it is not one for us to second guess. Since the age of twelve, Z.A. has been in three residential facilities (one for eighteen months) and two foster homes. However, these placements have failed to curb his violent behavior, culminating in him injuring two students at school. Although DCS had recommended an emergency shelter in Gary, the court was not comfortable with that because it was short-term, offered no services, and was not secure. Because less-restrictive options were tried but unsuccessful, the court did not abuse its discretion by placing Z.A. in the DOC.
[¶16] Affirmed.
Weissmann, J., and Foley, J., concur.