N.L. v. State of Indiana (mem. dec.) ( 2018 )

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D),
Jul 26 2018, 6:04 am
this Memorandum Decision shall not be
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Renee M. Ortega Curtis T. Hill, Jr.
Crown Point, Indiana Attorney General of Indiana
Tyler G. Banks
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
N.L., July 26, 2018
Appellant-Respondent, Court of Appeals Case No.
45A05-1712-JV-2879
v. Appeal from the Lake Superior
Court
State of Indiana, The Honorable Thomas P.
Appellee-Petitioner. Stefaniak, Jr., Judge
The Honorable Robert G. Vann,
Magistrate
Trial Court Cause No.
45D06-1502-JD-137
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Respondent, N.L., appeals the juvenile court’s order, modifying his
probation and ordering him to be a ward of the Department of Correction
(DOC).
[2] We affirm.
ISSUES
[3] N.L. raises two issues, which we restate as:
(1) Whether the juvenile court’s dispositional order complied with the
statutory requirements; and
(2) Whether the juvenile court abused its discretion when modifying N.L.’s
placement from probation to wardship at the DOC.
FACTS AND PROCEDURAL HISTORY
[4] On April 25, 2015, at age fourteen, N.L. incurred his first delinquency referral
after he was charged with battery resulting in bodily injury, a Class A
misdemeanor if committed by an adult. While at school, N.L. had grabbed
another student by the neck and choked him to the point the student lost
consciousness and fell to the ground, hitting his head on the classroom floor.
N.L. entered into an agreement with the State, in which he admitted to the
battery and was placed on Intensive Probation Level 2. On July 16, 2015, after
making improvements in his behavior, N.L.’s probation was modified and
lowered to Intensive Probation Level 1.
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[5] Almost immediately after modifying his probation, N.L. began to accumulate
unreported absences at school. Despite beginning to “revert[] back to some of
his previous behaviors in the home setting,” N.L. remained “in compliance
with services[.]” (Appellant’s App. Vol. II, p. 89). After October 2015, N.L.
began attending day treatment rather than regular high school. However,
“shortly after his enrollment [the day treatment facility] discharged [N.L.]
alleging he was threatening students and incited overall several fights in one
day.” (Appellant’s App. Vol. II, p. 100). Attempts to place N.L. at another day
treatment facility failed “due to [an] alleged gang affiliation.” (Appellant’s
App. Vol. II, p. 100). Eventually, N.L. participated in services through Choices
and enrolled in another day treatment program. On February 17, 2016, N.L.
was again discharged from the day treatment program because he had engaged
in a fight with another student. Despite being ordered by probation to attend
yet another day treatment facility, N.L. refused to do so. As of April 1, 2016,
“[t]hree out of four programs [N.L.] has attended have reported physical
aggression.” (Appellant’s App. Vol. II, p. 144).
[6] When not in school, N.L. “appears to be enthused with gang activities[,]” and
his “gang involvement has placed himself and [his] family in grave danger.”
(Appellant’s App. Vol. II, pp. 134, 135). In fact, N.L.’s “enthusiasm and
participation with gang related activities through Facebook has prompt[ed] his
current residency to be targeted by gang members.” (Appellant’s App. Vol. II,
pp. 134-35). When asked about gang membership, N.L. admitted to being
affiliated with the Vice Lords gang.
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[7] On April 7, 2016, the juvenile court conducted a hearing on the State’s petition
to modify N.L.’s probation after violating his terms of probation by being
expelled from the day treatment program for fighting. N.L. admitted to the
violation and was ordered to remain detained in the county’s detention facility
pending disposition. Despite probation’s search to secure a placement for N.L.,
only one residential treatment facility was willing to accept him but could not
for a period of multiple months. At the end of May 2016, the juvenile court
released N.L. from detention to live with his mother and placed him back on
Intensive Probation Level 2.
[8] Within a month, the Indiana Department of Child Services (DCS) was called to
N.L.’s mother’s house. Upon their arrival, N.L.’s mother advised them that her
boyfriend had broken up a fight between N.L. and a girl. Afterwards, N.L.
threatened mother’s boyfriend, yelling “I’ll kill you where the fuck you stand”
and that when the boyfriend was asleep, N.L. would “slit his fucking throat.”
(Appellant’s App. Vol. II, p. 181). Shortly after this incident, N.L. absconded
from mother’s residence. A verified petition to detain N.L. was granted but he
was not detained until nearly a month later. During his intake, N.L. reported
that he had first gone to Texas for less than a week and then spent some time in
Indianapolis before returning to northwest Indiana.
[9] On July 21, 2016, the State filed another petition for modification for violating
his conditions of probation by absconding. N.L. admitted to the allegation, and
on August 4, 2016, the juvenile court ordered N.L. committed to the DOC for
six months. In a report to the juvenile court upon N.L.’s release, the probation
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officer reported that N.L. had accumulated “12 major disciplinary conduct
reports while at the DOC.” (Appellant’s App. Vol. III, p. 23). The day after he
was released, N.L. informed his probation officer that he had “gotten ‘dummy
high’” and that he was “still high” the following morning. (Appellant’s App.
Vol. III, p. 26). In the month between his release and his July 2017 hearing,
N.L. again fled the state for 10 days while telling his mother and probation
officer that he had secured employment for which he needed to live with his
father. Also, N.L. posted photographs of himself holding firearms on social
media. During this time, “it appear[ed] that [N.L.’s] behaviors [] escalated
since his release from the” DOC. (Appellant’s App. Vol. III, p. 26).
[10] On July 25, 2017, finding that N.L. was a danger to himself and the
community, the juvenile court placed N.L. back on Intensive Probation Level
2, mandated him to wear a location monitor, and ordered him detained at
Alternative House. On August 8, 2017, N.L. was released from Alternative
House and resumed living with his mother. Although his behavior improved
for several weeks, N.L. again began posting photos of himself brandishing
firearms on social media. He sent a selfie holding a firearm to another juvenile,
threatening “Biitch iima smoke yo ass just like liil John.” (Appellant’s App.
Vol. III, p. 78) (spelling and capitalization unaltered).
[11] By the end of September 2017, N.L.’s therapist observed
The adolescent is not only dangerous[,] he is deeply and
profoundly mentally ill. By his own admission he has committed
or was directly involved in the murder of two people in the past
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and exhibits no reservations with regards to harming not only the
youth cited above but even members of his own family. . . It is to
be remembered there is still a $4000.00 street bounty on [N.L.’s]
head because he robbed a known drug dealer in Hammond, IN.
several months ago . . . [N.L.] constitutes a viable danger to
others and to himself and should be removed from the home in
order to preclude any further unnecessary bloodshed, this must
be initiated as expeditiously as is possible for the safety of
[N.L.’s] family and the public at large.
(Appellant’s App. Vol. III, p. 72). On September 20, 2017, the State petitioned
the juvenile court to modify N.L.’s probation, and the juvenile court ordered
N.L. detained pending the hearing.
[12] In anticipation of the modification hearing set for October 26, 2017, N.L.’s
probation officer submitted a detailed hearing report, describing the progress of
the case. The report included a narrative of the progression of N.L.’s behavior
while on probation, but also entailed diagnoses resulting from a psychological
evaluation, the diagnostic criteria associated with the diagnoses, and noted that
N.L.’s parents “ha[d] complied with the Order of Participation.” (Appellant’s
App. Vol. II, p. 32).
[13] At the modification hearing, N.L.’s mother, primary therapist, case manager,
and probation officer were present. During the proceeding, N.L.’s mother
advised the juvenile court that her son “needs mental help.” (Transcript p. 9).
She informed the juvenile court that she will not allow N.L. to return home as
he is putting the “other kids in jeopardy.” (Tr. p. 10). N.L.’s therapist
recommended placement at the DOC, where the psychiatric services and the
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educational caveat [sic] could be easily met.” (Tr. p. 10). N.L.’s probation
officer noted that no residential placement would accept N.L. and that because
of his violent provocation of gang members on social media, “if he has to go to
the DOC to keep him safe and keep him from getting killed on the streets, then
that’s the recommendation that I will make.” (Tr. p. 16). At the conclusion of
the hearing, the juvenile court took its disposition under advisement to allow
probation to investigate one other possible placement. On November 9, 2017,
the juvenile court issued its dispositional order, ordering N.L. to be a ward of
the DOC.
[14] N.L. now appeals. Additional facts will be provided if necessary.
DISCUSSION AND DECISION
I. Standard of Review
[15] When a person under the age of eighteen commits an act that would be a crime
if committed by an adult, the person is adjudicated a ‘delinquent child’ and the
juvenile court issues a dispositional decree providing for placement, sanctions,
and treatment of the child. R.J.G. v. State, 902 N.E.2d 804, 806 (Ind. 2009).
Dispositional decrees are intended to promote rehabilitation, consistent with
the expressed legislative intent to “ensure that children within the juvenile
system are treated as persons in need of care, protection, treatment, and
rehabilitation.” Ind. Code § 31-10-2-1(5). Thus, the juvenile court is given a
myriad of alternatives and is accorded great latitude and flexibility to allow the
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disposition that “best fits the unique and varying circumstances of each child’s
problems.” A.A.Q. v. State, 958 N.E.2d 808, 813-14 (Ind. Ct. App. 2011).
[16] The choice of the specific disposition of a juvenile adjudicated a delinquent
child is a matter within the sound discretion of the juvenile court, subject to
certain statutory considerations. D.A. v. State, 967 N.E.2d 59, 64 (Ind. Ct. App.
2012). Indiana Code section 31-37-18-6 provides that the juvenile court shall
choose a disposition that is “in the least restrictive . . . and most appropriate
setting available,” consistent with the safety of the community and the best
interest of the child. We will reverse only if there has been an abuse of
discretion, which occurs when the juvenile court’s action is clearly erroneous
and against the logic and effect of the facts and circumstances before the court
or the reasonable, probable, and actual inferences that can be drawn therefrom.
D.A., 967 N.E.2d at 64.
II. Dispositional Order
[17] N.L. contends that the juvenile court’s order did not conform with the statutory
requirements contained in Indiana Code section 31-37-18-9(a). Complaining
that the court’s order is “rote and merely statutory in form,” N.L. asserts that
the disposition is insufficient, fails to contain tailored written findings and
conclusions, and omits the reasons for the disposition. (Appellant’s Br. p. 8).
[18] When ordering an order modifying a juvenile disposition, the court must
comply with the requirements governing dispositional orders. See Ind. Code §
31-37-22-3(c). Indiana Code section 31-37-38-9(a) requires a dispositional
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decree to include “written findings and conclusions,” as well as “specific
findings” as to
(1) The needs of the child for care, treatment, rehabilitation, or
placement.
(2) The need for participation by the parent, guardian, or
custodian in the plan of care for the child.
(3) Efforts made, if the child is removed from the child’s parent,
guardian, or custodian, to:
(A) Prevent the child’s removal from; or
(B) Reunite the child with;
The child’s parent, guardian, or custodian.
(4) Family services that were offered and provided to:
(A) The child; or
(B) The child’s parent, guardian, or custodian.
(5) The court’s reasons for the disposition.
(6) Whether the child is a dual status child under [I.C. §] 31-41.
The statute allows the juvenile court to “incorporate a finding or conclusion
from a dispositional report as a written finding or conclusion upon the record in
the court’s dispositional decree. I.C. § 31-37-18-9(c).
[19] At the outset, the juvenile court’s order noted that “[t]he statements in the
Probation Officer’s Report and all attachments are adopted as findings,
including any and all statements of reasonable efforts to provide services, and
are incorporated by reference herein.” (Appellant’s App. Vol. II, p. 27).
Subsequently, the order addressed all the requirements imposed by statute. It
spoke to N.L.’s best interest in being removed from the home because
remaining there "would be contrary to the welfare of the child” and “because
the home environment is unable to meet” N.L.’s “basic needs.” (Appellant’s
App. Vol. II, p. 27). It noted that the parents had complied with the Order of
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Participation. The order further found that “[e]fforts made to provide family
services did not prevent removal of the child(ren) because the family services
were refused or ineffective[,]” and the probation officer’s report contained
extensive documentation of the unsuccessful placements and treatments
provided to N.L. (Appellant’s App. Vol. II, p. 27). The probation officer’s
report explained the justification for the DOC disposition referring to N.L.’s
escalating behavior, his past violent threats, his absconding from his mother’s
home, and his history of expulsion from academic and treatment programs.
While the order fails to include a specific finding as to N.L.’s dual status, the
record evidences that a dual status team was convened in July of 2017,
recommending that the juvenile court should solely proceed with delinquency
proceedings.
[20] N.L. points to K.A. v. State, 775 N.E.2d 382 (Ind. Ct. App. 2002), trans. denied,
in support of his argument that the probation officer’s report cannot be used to
constitute specific findings. However, as pointed out by the State, K.A. was
decided in 2002 when the statute governing dispositional orders did not contain
the language permitting the juvenile court to incorporate the findings of a
dispositional report. 1
[21] Accordingly, the Probation Officer’s Hearing Report, as incorporated in the
juvenile court’s order, together with the court’s findings, comply with the
1
The current version of I.C. § 31-37-18-9 became effective in 2006. See Pub. L. 146-2006, S.E.C. 56.
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statutory requirements of I.C. § 31-37-18-9(a). The incorporated documents,
together with the court’s findings, extensively describe N.L.’s prior placements,
behavioral problems, attempts at treatment, and recommend a specific course of
action based on these facts. Therefore, the juvenile court did not abuse its
discretion when entering its disposition.
III. DOC Wardship
[22] N.L. also disputes the severity of the juvenile court’s disposition to the DOC.
As the current cause is N.L.’s first juvenile adjudication, N.L. maintains that
this second referral to the DOC is more punitive in nature than rehabilitative.
[23] Without question, I.C. § 31-37-18-6 requires the juvenile court to select the least
restrictive placement in most situations. However, the statute contains
language which reveals that under certain circumstances a more restrictive
placement might be appropriate. That is, the statute requires placement in the
least restrictive setting only “[i]f consistent with the safety of the community
and the best interest of the child.” I.C. § 31-37-18-6. Thus, the statute
recognizes that in certain situations the best interest of the child is better served
by a more restrictive placement. See Madaras v. State, 425 N.E.2d 670, 672 (Ind.
Ct. App. 1981) (“[W]hile the juvenile code creates a presumption in favor of
disposing of juvenile matters using the least severe disposition available to the
court which will serve the needs of the case, the code explicitly recognizes that
in some instances commitment may be in the best interests of the child and
society in general.”) (citation omitted); M.R. v. State, 605 N.E.2d 204, 208 (Ind.
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Ct. App. 1992) (noting that while commitment to the Indiana Boys School
“should be resorted to only if less severe dispositions are inadequate, there are
times when such commitment is in the best interests of the juvenile and society
in general.”). “In some instances, confinement may be one of the most effective
rehabilitative techniques available” when a juvenile is exposed to the type of
placement he would encounter were he to continue with his poor behavior.
Madaras, 425 N.E.2d at 672.
[24] The juvenile court did not abuse its discretion by ordering N.L. to be placed at
the DOC. While we agree that this is N.L.’s first juvenile adjudication, given
N.L.’s history, previous failed treatment attempts, and escalating behavior, the
juvenile court’s dispositional alternatives had become limited. He had already
been placed once at the DOC—during which time he incurred 12 major
disciplinary reports. When on probation, N.L.’s behavior became increasingly
more threatening, ranging from posting photos of himself brandishing weapons
on social media, to hurling threats to his mother’s boyfriend, and getting into
physical fights. He had been expelled from all previous treatment programs and
is yet to successfully complete any court-imposed treatment. Several treatment
programs have refused to admit him due to his escalating conduct and his self-
proclaimed gang association. His mother has now declined to have N.L. reside
in the family home in order to safeguard the other children. He has absconded
from probation for a significant time and removed his tracking monitor. N.L.’s
therapist and probation officer recommended placement at the DOC where he
could be provided with the necessary rehabilitative services.
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[25] Accordingly, based on N.L.’s history and to safeguard the community, we
refuse to disturb the juvenile court’s disposition, ordering N.L. to the only
facility that is still willing to admit him.
CONCLUSION
[26] Based on the foregoing, we hold that the juvenile court did not abuse its
discretion by ordering N.L.’s placement at the DOC.
Affirmed.
May, J. and Mathias, J. concur
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