L.D.W. v. State of Indiana (mem. dec.) ( 2018 )

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Jan 23 2018, 9:04 am
this Memorandum Decision shall not be
CLERK
regarded as precedent or cited before any Indiana Supreme Court
Court of Appeals
court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Thomas C. Allen Curtis T. Hill, Jr.
Fort Wayne, Indiana Attorney General of Indiana
Christina D. Pace
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
L.D.W., January 23, 2018
Appellant-Respondent, Court of Appeals Case No.
02A04-1707-JV-1645
v. Appeal from the Allen Superior
Court
State of Indiana, The Honorable Daniel G. Heath,
Appellee-Plaintiff. Judge
The Honorable Michael T.
Douglass, Magistrate
Trial Court Cause No.
02D07-1702-JD-202
Brown, Judge.
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[1] L.D.W. appeals the trial court’s dispositional order awarding wardship of him
to the Department of Correction (the “DOC”) for housing in a correctional
facility for children. L.D.W. raises one issue which we revise and restate as
whether the court abused its discretion in entering its order. We affirm.
Facts and Procedural History
[2] On February 22, 2017, Fort Wayne police responded to a report of three
individuals, one of whom was L.D.W., born in November 2001, walking down
an alley while armed, and officers combed the area looking for the individuals.
When the officers identified the three individuals, two of them, including
L.D.W., ran west and the other ran east. L.D.W. and the other individual saw
a police vehicle and ran, the officer in the vehicle exited the vehicle and chased
them, and another officer yelled for them to stop. Another officer saw L.D.W.
and the other individual running across an empty lot directly in front of him,
ordered them to stop and get on the ground, and noticed that L.D.W. had a gun
in his hand. The officer drew his weapon, yelled for the two individuals to stop,
and fired a shot. L.D.W. dropped his gun and bent down to pick it up, and the
other individual running with L.D.W. ran into L.D.W. and knocked him to the
ground. The officer ran toward L.D.W., noticed he could not see L.D.W.’s left
hand, pointed his weapon at L.D.W., and ordered him to show his hands.
L.D.W. fell onto his back, placed his hands up in front of him, and kicked his
leg underneath the front of a car next to where he had fallen, and the officer
rolled L.D.W. onto his stomach and placed him in handcuffs. The officer
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shined a light under the car where L.D.W. had been kicking and saw what
appeared to be a handgun. L.D.W. stated that the weapon was an airsoft gun.
[3] On March 1, 2017, the State filed a petition alleging that L.D.W. was a
delinquent child in that he committed an act which, if committed by an adult,
would be the crime of resisting law enforcement as a class A misdemeanor. On
May 15, 2017, the court issued an Order on Factfinding Hearing which stated
that the court had held a factfinding hearing and found that L.D.W. is a
delinquent child and committed the delinquent act of resisting law enforcement.
The court ordered that L.D.W. be placed in temporary secure detention at the
Allen County Juvenile Center (the “ACJC”) and that he comply with all rules
and participate in educational services, in drug/alcohol group classes, and in
the Thinking Errors Program if available.
[4] On June 15, 2017, the court held a dispositional hearing at which it noted that
the reports presented to it included an ACJC Court Report, a Pre-Dispositional
Report, and a Placement Board Staffing Report. The probation department
recommended that L.D.W. be committed to the DOC. His counsel argued that
L.D.W. was making progress, had improved his grades, and desired to become
a productive member of society. His counsel also stated that, if the court
ordered him to the DOC, perhaps that might be suspended and that the least
restrictive environment would be to return home under any conditions the court
would impose. The court stated “[w]ell, DOC is the last option,” “[t]hat’s kind
of where this is at,” “[n]obody wants you to go to the [DOC],” “[b]ut the
situation you find yourself in, because of your choices, that you’ve
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acknowledged or said that you know have been poor,” and “you run out of
options just like we talked about.” Transcript at 74, 77. The court also stated
“[h]ere’s the keys young man, you get to work, put your head down, stay out of
trouble, focus on yourself, to better yourself, to make better choices, and you’ll
be released sooner than later,” “[n]ow, if you don’t do that, you want to act up
like you’ve been doing here - frankly, I’m not impressed that your disciplinary
reports have dropped off after the Fact Finding,” and “[w]e shouldn’t have any
disciplinary reports in the first place, let alone 25. That’s ridiculous. You’re
better than that. You know better than that.” Id. at 78. The court further
stated: “Court will show special findings: Has an extensive history of
incorrigible behavior, conduct is chronic, escalating, has an ample opportunity
to alter behavior, must learn logical and natural consequences of said behavior,
and is in need of rehabilitation and will benefit from a highly structured
environment.” Id. at 80. It awarded wardship of L.D.W. to the DOC for
housing in a correctional facility for children.
Discussion
[5] The issue is whether the court abused its discretion in awarding wardship of
L.D.W. to the DOC for housing in a correctional facility for children. The
juvenile court is given “wide latitude and great flexibility” in determining the
specific disposition for a child adjudicated a delinquent. 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:
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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.
[6] “Under the statute, placement in ‘the least restrictive (most family like) 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) (quoting Ind. Code § 31-37-18-6).
[7] A disposition will not be reversed absent a showing of an abuse of the juvenile
court’s discretion, which occurs when the juvenile court’s order is clearly
against the logic and effect of the facts and circumstances before the court or the
reasonable inferences that can be drawn therefrom. R.H. v. State, 937 N.E.2d
386, 388 (Ind. Ct. App. 2010).
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[8] L.D.W. asserts the court abused its discretion in placing him at the DOC and
that a detention at the ACJC would fulfill the court’s finding that he needed to
learn the logical and natural consequences of his behavior, and would deprive
him of his freedom and the everyday luxury of freedom of movement. He
argues the ACJC is as structured as any facility within the DOC and as such
fulfills the court’s finding for the need of structure. He also argues that his
grades improved while he was detained at the ACJC and that his juvenile
history is not filled with serious or dangerous criminal behavior.
[9] The State maintains that L.D.W. has a history of delinquent activity, has been
offered services, and has had multiple opportunities to rehabilitate. It argues
the DOC is the least restrictive option available based on L.D.W.’s history and
failed attempts at rehabilitation, L.D.W. has already been “given the exact
treatment/opportunity that he is arguing for, detention at the [ACJC],” and
that he committed the instant offense less than two months after being released
from the ACJC. Appellee’s Brief at 10.
[10] The ACJC Court Report, dated June 1, 2017, states that, since his last court
date, L.D.W. had received three incident reports, that he was making progress
and was more compliant with ACJC staff, and that he had made significant
improvement in controlling his behavior. The report also included a summary
of L.D.W.’s medical status and his academic status. The Placement Board
Staffing Report, dated June 12, 2017, indicates that each of five representatives
recommended that L.D.W. be placed in the DOC, and the representatives listed
multiple reasons in support of their recommendation. These included L.D.W.’s
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extensive history in the juvenile system, that he has been on all levels of
probation, that his behavior in detention has been horrible and he has had over
twenty disciplinary referrals, that he has been suspended from school, that
numerous services had been offered, and that he tested positive for marijuana.
[11] The pre-dispositional report, dated June 14, 2017, indicates that L.D.W.’s legal
history includes battery resulting in bodily injury in 2011, conversion in 2013,
public intoxication in 2015, and possession of marijuana in 2016. The report
indicates L.D.W. has been subject to informal administrative probation,
informal operational probation, two periods of formal operational probation,
three periods of electronic monitoring, and two periods of confinement at the
ACJC, the first from May 5, 2016, through August 2, 2016, when he was
released on anklet supervision, and the second from October 25, 2016, through
January 4, 2017.
[12] The pre-dispositional report further provides L.D.W. has “displayed significant
behavioral issues while detained at the ACJC. He has received 24 disciplinary
referrals for contraband and failing to follow staff instructions including:
arguing, profanity, talking during resident movement, provoking, instigating, or
participating in an altercation, resident body posture during resident movement,
verbal harassment, excessive noise, and horseplay.” Appellant’s Appendix
Volume 2 at 73. With respect to L.D.W.’s education, the report states that he
began attending class at the ACJC in February 2017 and earned a grade of B+
in Algebra I and an F in English 9. It states that he struggled with attendance
once he returned to South Side High School in January 2017 as evidenced by
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four full-day truancies, sixteen class truancies, and twenty-two class tardies and
that he was suspended on three separate occasions. With respect to L.D.W.’s
health information, the report states that he was previously diagnosed with
attention deficit hyperactivity disorder and tested positive for cannabinoid by
urinalysis on February 23, 2017. The report also indicates that his overall risk
assessment score using the Indiana Youth Assessment System places him in the
high risk to reoffend category. With respect to his ACJC confinement, the
report states that he had been given ample opportunities to alter his delinquent
behaviors but refused to comply and that he could benefit from the structure
and supervision provided at the DOC. The pre-dispositional report also
indicates that L.D.W.’s case was staffed at Placement Board and it was a
unanimous recommendation that he be committed to the DOC.
[13] At the dispositional hearing, the probation department recommended that
L.D.W. be committed to the DOC and noted his lengthy history of non-
compliance and unsuccessful completions on supervision. The department
noted that L.D.W. had been confined to the ACJC two separate times, that he
was released from the more recent confinement on January 4, 2017, and that he
committed his most recent offense less than two months later. Indeed, the pre-
dispositional report indicates that L.D.W. was released from the ACJC on
January 4, 2017, and he committed the new offense of resisting law
enforcement on February 22, 2017. In its dispositional order, the court
awarded wardship of L.D.W. to the DOC and found that he has an extensive
history of incorrigible behavior, that his conduct is chronic and escalating, that
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he has had ample opportunity to alter his behavior, that he must learn logical
and natural consequences of delinquent behavior, and that he is in need of
rehabilitation and will benefit from a highly structured environment.
[14] Based upon the record and under the circumstances, we cannot say that the
court abused its discretion in awarding wardship of L.D.W. to the DOC for
housing in a correctional facility for children. See D.E. v. State, 962 N.E.2d 94,
97 (Ind. Ct. App. 2011) (noting the trial court placed the juvenile in a DOC
facility because attempts to rehabilitate his behavior were unsuccessful;
observing the juvenile had already violated probation by testing positive for
marijuana and had been suspended or expelled from multiple schools; and
holding that under the circumstances placement in the DOC was not an abuse
of discretion).
Conclusion
[15] For the foregoing reasons, we affirm the court’s order.
[16] Affirmed.
Baker, J., and Riley, J., concur.
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