T.B. v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Sep 05 2019, 10:05 am
court except for the purpose of establishing
the defense of res judicata, collateral CLERK
Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Daniel J. Vanderpool Curtis T. Hill, Jr.
Vanderpool Law Firm, PC Attorney General of Indiana
Warsaw, Indiana
Evan Matthew Comer
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
T.B., September 5, 2019
Appellant-Defendant, Court of Appeals Case No.
19A-JV-57
v. Appeal from the Wabash Circuit
Court
State of Indiana, The Honorable Robert R.
Appellee-Plaintiff McCallen III, Judge
Trial Court Cause No.
85C01-1807-JD-38
Baker, Judge.
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[1] T.B. appeals the juvenile court’s dispositional order committing him to the
Indiana Department of Correction (DOC), arguing that the dispositional order
failed to comport with statutory requirements and that the juvenile court erred
when it did not consider less restrictive alternatives for placement.1 Finding no
error, we affirm.
Facts
[2] Seventeen-year-old T.B. has a long history with the correctional system. On
March 24, 2016, the State filed a delinquency petition, alleging that T.B. was
delinquent for committing acts that would be Class B misdemeanor criminal
mischief, Class B misdemeanor possession of marijuana, and Class C
misdemeanor possession of paraphernalia had they been committed by an
adult. On May 2, 2016, T.B. admitted to the possession of paraphernalia and
marijuana allegations and was placed on probation for six months. On June 2,
2016, after the State filed a petition to modify T.B.’s prior dispositional decree,
T.B. admitted to violating the terms of his probation by ignoring his parents’
demands and breaking probationary curfew. The juvenile court extended T.B.’s
probationary period by three months. Then, on September 6, 2016, after T.B.
1
Additionally, T.B. asks this Court to consider arguments under an unrelated cause number involving the
revocation of his probation. We decline to address this matter for three reasons: (1) despite any claim by T.B.
that this Court’s consideration of the revocation matter “would not . . . prejudice[]” the State, appellant’s br.
p. 5, this is not the standard by which we determine whether a matter is ripe for appeal; (2) T.B. has not filed
a Notice of Appeal for this matter pursuant to Indiana Appellate Rule 9(A)(1) and has not moved to
consolidate his appeals pursuant to Appellate Rule 38(A); and (3) even if we were to ignore these procedural
shortcomings, T.B. offers no support in his brief for why he is appealing the juvenile court’s revocation of his
probation. Thus, the matter is waived.
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had been suspended from school, T.B. and T.B.’s father agreed, as sanction,
that T.B. would participate in school-based counseling services provided by
Lifeline Youth & Family Services. Later, on March 20, 2017, the juvenile court
ordered that T.B. be committed to White’s Residential and Family Services for
behavioral services. Finally, T.B. was released from White’s Residential and
Family Services to the care and custody of his father on December 14, 2017.
[3] T.B.’s history with the juvenile courts did not stop there. On May 30, 2018, the
State filed a delinquency petition, alleging that T.B. was delinquent for
committing acts that would be Class A misdemeanor resisting law enforcement
and Class B misdemeanor disorderly conduct had they been committed by an
adult. On June 18, 2018, T.B. admitted to these allegations and was placed on
probation, with a suspended commitment to the Indiana Boys School.2
[4] Then, just ten days later on June 28, 2018, the State filed another delinquency
petition, alleging that T.B. was delinquent for committing acts that would be
Level 4 felony burglary, Class A misdemeanor conversion, Class A
misdemeanor theft, and two counts of Class B misdemeanor criminal mischief
had they been committed by an adult. Following a fact-finding hearing on
October 22, 2018, T.B. admitted to the criminal mischief allegations and that he
had been in possession of a firearm, a violation of the terms of his probation.
2
The Indiana Boys School is a correctional institution for adolescent boys that is part of the DOC. “Indiana
Boys School” and “DOC” are used interchangeably throughout this opinion.
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The juvenile court set final disposition of the matter for November 19, 2018,
and ordered that a predispositional report be completed.
[5] T.B. failed to appear for his November 19, 2018, dispositional hearing. Police
officers discovered T.B. with marijuana the next day, November 20, 2018, at a
residence near his home. The juvenile court continued the dispositional hearing
until December 10, 2018, at the conclusion of which the juvenile court studied
the predispositional report and stated the following:
Well, I guess the biggest thing that troubles me is, on June 18 th, of
2018, in this courtroom, this disposition that was a placement to
the DOC suspended, was by agreement. Um, so this has been a
history and a series. It’s, uh, not a hard case for me to figure out,
just because that’s what he agreed to. That’s what I had ordered.
He knew he had to walk out of here and be clean completely. And
he wasn’t. So Boys School is the commitment I’m going to order
today. All right. Next case.
Tr. Vol. II p. 24. The juvenile court ultimately ordered that T.B. be committed
to the Indiana Boys School.
[6] In its final dispositional order, the juvenile court stated that it had “reviewed the
predispositional report, the current child support obligation worksheet, and . . .
statements and evidence presented[.]” Appellant’s App. Vol. II p. 9.
Additionally, in that order, the juvenile court stated that it had considered the
interests of the child and public, alternative treatment options, the liabilities and
financial responsibilities of the parents/guardians, and T.B.’s risk assessment.
See id. at 9-13. T.B. now appeals.
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Discussion and Decision
I. Dispositional Order
[7] First, T.B. argues that the juvenile court’s dispositional order failed to comport
with statutory requirements.
[8] The choice of a specific disposition of a juvenile delinquent is within the sound
discretion of the juvenile court, and that decision will not be reversed absent a
showing that the juvenile court’s actions are clearly erroneous and against the
logic and effect of the facts and circumstances before it. E.H. v. State, 764
N.E.2d 681, 684 (Ind. Ct. App. 2002).
[9] At the time of placement, the juvenile court is required to 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.
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Ind. Code § 31-37-18-6. Additionally, “[t]he juvenile court shall accompany the
court’s dispositional decree with written findings and conclusions upon the
record concerning approval, modification, or rejection of the dispositional
recommendations submitted in the predispositional report[.]” I.C. § 31-37-18-
9(a).
[10] T.B. contends that he “did not receive the benefit of a consideration of those
[statutory] factors,” appellant’s br. p. 12, based on the predispositional report
and the short statement made by the juvenile court judge at the end of the
December 10, 2018, hearing. In other words, T.B. believes that his placement in
the DOC was a “foregone conclusion,” id., and that the juvenile court failed to
adequately review and comment on the statutory factors.
[11] T.B. focuses solely on the juvenile court judge’s colloquy at the end of that
hearing in concluding that the judge placed T.B. in the DOC without adequate
consideration. In reality, however, the juvenile court entered a written
dispositional order that covered all of the statutory factors and explained why it
had reached the decision to commit T.B. to the Indiana Boys School. To
supplement the dispositional order, the juvenile court heavily relied upon the
recommendations from T.B.’s probation officer in the predispositional report.
[12] In the final dispositional order and in the predispositional report, there were
findings that T.B. had “commit[ed] new delinquent acts while under the
supervision of the Wabash County Probation Department.” Appellant’s App.
Vol. II p. 37. Moreover, the juvenile court and probation officer found that T.B.
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was at a high risk of reoffending given his previous correctional history and that
all efforts for non-DOC rehabilitative care had failed to assist T.B. Specifically,
the probation officer concluded that:
. . . for the safety and welfare of [T.B] and the community, as well
as, the fact that all prior rehabilitative efforts at the local level have
been unsuccessful, this Officer recommends that [T.B.] be placed
at the Indiana Department of Correction (Boys School).
Additionally, this Officer would recommend that [T.B.] be ordered
to pay restitution as directed by probation.
Id. at 36.
[13] So yes, while the juvenile court judge’s short colloquy with T.B. explaining why
T.B. was being placed in the DOC seems conclusory, the order clearly shows
that the juvenile court reviewed and considered numerous sources of
information before reaching its result. There is ample evidence showing that the
juvenile court did, in fact, consider all of the aforementioned statutory factors it
was required to review before placing T.B. in the DOC. As such, there is no
error.
II. Commitment to DOC
[14] Next, T.B. argues that the juvenile court erred when it committed him to the
DOC because it should have considered less restrictive alternatives for
placement, but failed to do so.
[15] We will reverse a juvenile court’s placement of a delinquent minor only if the
decision is clearly against the logic and effect of the facts and circumstances
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before it. C.C. v. State, 831 N.E.2d 215, 216-17 (Ind. Ct. App. 2005). The choice
of a disposition for a juvenile is within the sound discretion of the juvenile
court, and it is accorded wide flexibility in making that judgment. E.L. v. State,
783 N.E.2d 360, 366 (Ind. Ct. App. 2003). That disposition is subject, however,
to the statutory considerations of the welfare of the child, the community’s
safety, and the policy of favoring the least harsh disposition. Id.[16] Indiana Code section 31-37-18-6(1) states that a juvenile court shall enter a
dispositional decree that is “in the least restrictive (most family like) and most
appropriate setting available; and . . . [is] consistent with the best interest and
special needs of the child[.]” T.B. argues that the DOC was not the most
appropriate setting available due to his behavioral issues and his need for
further counseling, and therefore, his placement in the Indiana Boys School was
not consistent with his best interest and special needs.
[17] While the goal of child placement within the juvenile system is rehabilitation
and not punishment, R.H. v. State, 937 N.E.2d 386, 388 (Ind. Ct. App. 2010),
the ultimate decision to place T.B. in the DOC was still appropriate, and the
juvenile court did not err by doing so. When presented with multiple
opportunities for rehabilitation over the course of roughly three years, T.B. has
shown few signs of progress at any placement. T.B. has violated his probation
by disobeying his parents, staying out past the probationary curfew, and
unlawfully possessing a firearm. Instead of immediately revoking probation and
issuing a harsher sanction, M.J.H. v. State, 783 N.E.2d 376, 377 (Ind. Ct. App.
2003) (finding that “violation of a single condition of probation is sufficient to
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revoke probation[]”), the juvenile court exhibited leniency and extended T.B.’s
probationary period. Then, following new delinquency allegations, the juvenile
court responded by placing T.B. in school-based counseling services provided
by Lifeline Youth & Family Services, behavioral therapy in White’s Residential
and Family Services, and back on home probation with his family. It is
apparent that T.B. has not improved his behavior through the plethora of
ameliorative programs offered to him.
[18] Furthermore, this Court has held that a delinquent juvenile’s placement with
the DOC may still be appropriate even if less restrictive alternatives are
available. K.A. v. State, 775 N.E.2d 382, 386-87 (Ind. Ct. App. 2002). T.B.’s
constant run-ins with the law and delinquency adjudications are evidence that
he has no interest in rehabilitation through the current least restrictive resources
available. And, given T.B.’s dangerous behavior of possessing drug
paraphernalia and controlled substances, criminal mischief, resisting law
enforcement, disorderly conduct, and deliberately missing court proceedings,
placement in the DOC is an appropriate option. See J.B. v. State, 849 N.E.2d
714, 718-19 (Ind. Ct. App. 2006) (holding that juvenile’s placement in DOC
was warranted after violating probation, committing new offenses, and failing
to take advantage of prior opportunities for treatment). The juvenile court has
already given T.B. numerous chances for reform and could have ordered
commitment to the DOC at an earlier time; nevertheless, the juvenile court
exhausted all options until it was left with this difficult choice.
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[19] The judgment of the juvenile court is affirmed.
Kirsch, J., and Crone, J., concur.
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