T.S. 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 Nov 26 2019, 8:44 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Michelle Laux Curtis T. Hill, Jr.
St. Joseph County Public Defender’s Attorney General of Indiana
Office Megan M. Smith
South Bend, Indiana Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
T.S., November 26, 2019
Appellant, Court of Appeals Case No.
19A-JV-1537
v. Appeal from the St. Joseph Probate
Court
State of Indiana, The Honorable Jason Cichowicz,
Appellee. Judge
The Honorable Graham Polando,
Magistrate
Trial Court Cause No.
71J01-1904-JD-140
Brown, Judge.
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[1] T.S. appeals the juvenile court’s dispositional order awarding wardship of him
to the Department of Correction (“DOC”). We affirm.
Facts and Procedural History
[2] On April 23, 2019, T.S., who was born on June 17, 2003, was riding in a car
with other people. At some point, someone in the car indicated they were
being followed by a police car. The car stopped, and T.S. and everyone else
“bailed” out of the car. Transcript Volume II at 27. As he ran away, a police
officer told T.S. to stop, and T.S. continued running.
[3] On April 24, 2019, the court held a detention hearing. Sandra DeHaven, T.S.’s
probation officer, indicated he had been placed on formal probation in 2015,
was released from formal probation on March 20, 2019, had been placed at
Bashor Home from November 20, 2017 to December 18, 2018, and received
services from Oaklawn, Dockside, and Keys Counseling “[s]o probation has
given this family an array of services prior to him being discharged from
probation.” Id. at 5. She also stated he was suspended from school on April
11, 2019 for excessive tardies and loitering in the school halls. She
recommended that he be detained in secure custody.
[4] T.S.’s counsel indicated T.S. had successfully completed his term of probation
and his mother was willing to have him home. The court asked T.S.’s mother if
she was willing to have him stay with her in her home, and she answered: “Yes,
if [T.S.] is going to do what [he] is supposed to do, yes. But if [he] is not going
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to do, no.” Id. at 10. The court stated it was “abundantly clear” that T.S.
would not follow the rules if he was placed at home, noted that it had just
discharged him a little more than thirty days earlier from probation, and placed
him in secure custody. Id. at 11.
[5] On April 30, 2019, the State filed a delinquency petition alleging that T.S.
committed resisting law enforcement which would constitute a class A
misdemeanor if committed by an adult. On May 8, 2019, the court held a
status hearing, and T.S. admitted the allegation. The court stated that if T.S.
was released he “will be right back here very soon” and that “[t]here’s simply
too many referrals, too many violations.” Id. at 33. The court found that
detention was necessary to protect T.S. and the community.
[6] In a pre-dispositional report dated June 10, 2019, Probation Officer Dustin D.
Jesch detailed T.S.’s legal history and recommended wardship be given to the
DOC.
[7] On June 11, 2019, the court held a dispositional hearing. T.S.’s counsel argued
that he had been accepted to the day-reporting program in spite of his apparent
gang ties. T.S. stated:
I’d like to say I’m sorry for what I did to get in here. What I did
back in the detention. Whatever happened, I was planning to
make the best of it, whether it’s DOC, I’d try to get my GED
while I’m in there. If I was to go home, sometime soon, I should
really get a job. Something to keep myself busy, like, I had never
been in this day reporting thing but it seems like it’s something
that, you know, have me something to do. So I just wanted to
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say, whatever happens, I’m looking forward to making
something out of it.
Id. at 42.
[8] The court stated:
[T.S.], I note that you accepted responsibility in this cause and
you received no benefit for that acceptance. That is a significant,
substantial point in your favor.
Unfortunately, it is the only significant, substantial point in your
favor. I find your statement of remorse to be incredible. And I
find that your behavior here is of a piece with the profoundly
anti-social behavior you have shown for a very, very, very long
time.
I agree with everything Mr. Jes[c]h wrote. I agree with his
conclusions. I particularly agree with his statement that to
believe that [T.S.’s] behavior will change toward authority is
nonsensical. Anything less restrictive than what’s being
proposed here, including day reporting, is flatly inconsistent with
the safety of the community.
So the probation department’s recommendation should be
adopted. [T.S.] [is] made a ward of the Department of
Correction.
Id. at 42-43.
[9] On June 11, 2019, the court entered a dispositional order adopting the
statements and attachments in the probation officer’s report and awarded
wardship of T.S. to the DOC.
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Discussion
[10] T.S. argues that the juvenile court abused its discretion when it committed him
to the DOC. He also argues that the court erred by ordering him to be
committed to the DOC for an indefinite period and asserts that “[i]t is more
than likely that it will be for a period greater than ninety (90) days, clearly
contrary to Ind. Code § 31-37-19-6.” Appellant’s Brief at 9 (italics omitted).
The State argues that the juvenile court did not abuse its discretion by
committing T.S. to the DOC because other least restrictive means of
rehabilitation had previously been attempted without success.
[11] The juvenile court is given wide latitude and great flexibility 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
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Ind. Code § 31-37-18-6). We will not overturn the juvenile court’s disposition
order absent an abuse of discretion. R.H. v. State, 937 N.E.2d 386, 388 (Ind. Ct.
App. 2010).
[12] The record reveals that the pre-dispositional report indicates T.S. tested positive
for marijuana on April 24, 2019. Prior services included “Keys Counseling
tutoring, therapy and case management; Dockside Services COSAT assessment
and other services; detention services; home detention services; residential
treatment services, parent education, and parent substance abuse treatment.”
Appellant’s Appendix Volume II at 71-72. The report indicates that, since his
detainment on April 24, 2019, T.S. received approximately nine incident
reports for defiance, threats, and disrespect to staff and that on June 7, 2019, he
“and two other residents got into a major altercation requiring the use of OC-10
by detention staff to control the situation.” Id. at 71.
[13] The report details T.S.’s lengthy legal history, which includes allegations of
burglary and multiple batteries resulting in bodily injury. It summarizes T.S.’s
history as follows:
A lengthy history of delinquency characterizes [T.S.’s] life from
2014 to the present. While not every incidence of delinquency
has been brought to the Court’s attention, including fights and
defiance at school, at only 15 years old, [T.S.] has nine
delinquency referrals to the probation department, four of which
have resulted in an adjudication. A consistent pattern has
emerged when one researches his background: [T.S.] often feels
that rules and laws do not apply to him. Whether he is stealing
fireworks, giving a child a bloody nose, running from law
enforcement, or stealing someone’s money, [T.S.] is
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demonstrating that he is both impulsive and willing to defy most
conventional societal norms. In school settings at both Bashor
and in the South [Bend] Community School Corporation,
[T.S.’s] penchant for rule-breaking is obvious and often severe.
Documents indicate that he is not simply being redirected for
talking. [T.S.] often escalates a situation in which he feels
aggrieved, and the result is often a suspension and potentially a
probation violation.
[T.S.] is a 15 year old male appearing before the Court for
disposition for Resisting Law Enforcement, a Class A
Misdemeanor when committed by an adult. [T.S.] scored high
on the Indiana Youth Assessment System indicating there is a
high probability that he will commit another delinquent act. The
drivers of his behavior are anti-social cognition and anti-social
peers. [T.S.] may state he does not associate with gang members
or that he is not influenced by others, but the evidence of gang
activity on Facebook is obvious and was posted after he was
released from Bashor. To further complicate things, [T.S.’s
mother’s] page also shows an affinity for a local gang. To believe
that [T.S.’s] behavior will change in a permissive family
environment with a parent who, at a minimum, shows
acceptance of gang activity, and to believe that [T.S.’s] behavior
will change toward authority is nonsensical. Significant
intervention must take place to prevent this young man from
continuing down a path that will lead to a lack of educational
attainment and more criminal behavior.
Dispositional Options Considered and Evaluation of Each:
Probation in the community has been tried several times and has
only led to more probation violations. Relative care is not an
option because it will not prevent [T.S.] from disregarding house
rules and doing as he pleases. Out of home placement has also
been tried, but soon after his release [T.S.] reverted to his old
behavior. Commitment to a correctional [sic] is the only option
that will provide the structure and discipline that [T.S.]
desperately needs.
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Id. at 72. The report recommends that T.S. be awarded to the care and custody
of the DOC for placement at an appropriately facility.
[14] Based upon the record, and in light of T.S.’s delinquent behavior and failure to
adequately respond to prior attempts at rehabilitation, we conclude that the
placement ordered by the juvenile court is consistent with his best interest 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 even though there was a
less restrictive option available where earlier attempts to rehabilitate his
behavior were unsuccessful). 1
[15] With respect to T.S.’s citation of Ind. Code § 31-37-19-6, that statute provides
that “the juvenile court may . . . [a]ward wardship to . . . the department of
correction for housing in a correctional facility for children . . . .” Ind. Code §
31-37-19-6(b)(2)(A)(i) (emphasis added). It also provides that “the juvenile
court may . . . take any of the following actions . . . [i]f the child is less than
seventeen (17) years of age, order confinement in a juvenile detention facility for
not more than the lesser of: (i) ninety (90) days; or (ii) the maximum term of
imprisonment that could have been imposed on the child if the child had been
1
To the extent T.S. cites E.H. v. State, 764 N.E.2d 681 (Ind. Ct. App. 2002), reh’g denied, trans. denied, we find
that case distinguishable. E.H. was involved in home-based counseling and was making considerable
progress. 764 N.E.2d at 686. E.H.’s home-based counselor testified that removing him from his current
situation would cause him to regress in his treatment. Id. Further, E.H. lacked a violent criminal record and
there was no evidence that E.H. was a threat to the community. Id.
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convicted as an adult offender for the act that the child committed under IC 31-
37-1 (or IC 31-6-4-1(b)(1) before its repeal).” Ind. Code § 31-37-19-6(b)(2)(B)
(emphasis added). T.S. appears to focus his argument on the commitment to
the DOC and not to any earlier detention period. The Indiana Supreme Court
has held that Ind. Code § 31-37-19-6 “provides for, among other things, an
indeterminate commitment of a delinquent child,” that “[o]ne option for the
trial court under section 6 is to award wardship of the child to the DOC,” and
that “[i]n that case, the DOC determines both the placement of the juvenile and
the duration of the placement.” D.C. v. State, 958 N.E.2d 757, 759 (Ind. 2011).
We cannot say that reversal is warranted on this basis.
[16] For the foregoing reasons, we affirm the juvenile court.
[17] Affirmed.
Baker, J., and Riley, J., concur.
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