G.B.W., A Child Alleged to be a Delinquent Child v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Dec 19 2019, 8:57 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE:
Mark F. James Curtis T. Hill, Jr.
South Bend, Indiana Attorney General of Indiana
Angela N. Sanchez
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
G.B.W., December 19, 2019
A Child Alleged to be a Court of Appeals Case No.
Delinquent Child, 19A-JV-1385
Appellant-Respondent, Appeal from the St. Joseph Probate
Court
v.
The Honorable Jason Cichowicz,
Judge
State of Indiana,
Trial Court Cause No.
Appellee-Petitioner. 71J01-1807-JD-218
71J01-1811-JD-389
Tavitas, Judge.
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Case Summary
[1] G.B.W. appeals her commitment to the Indiana Department of Correction
(“DOC”) after her adjudication as a delinquent and subsequent probation
violations. We affirm.
Issue
[2] G.B.W. raises a single issue, which we restate as whether the juvenile court
abused its discretion when it committed G.B.W. to the DOC.
Facts
[3] On July 17, 2018, Keontah White reported that her vehicle was stolen while
parked outside a food mart. The following day, while on routine patrol, Officer
Martin Mullins, with the South Bend Police Department, saw White’s stolen
vehicle. In his fully marked patrol car, Officer Mullins turned on his lights and
sirens to initiate a traffic stop.
[4] The vehicle reduced its speed but did not stop. Eventually, the vehicle slowed
down significantly due to nearby road construction; at that point, Officer
Mullins was able to pull in front of the vehicle to force it to stop. After the
vehicle stopped, the front passenger and back seat passenger fled. Fourteen-
year-old G.B.W. was the vehicle’s driver. G.B.W. was detained, and while in
detention, G.B.W. told a probation officer that she stole the vehicle because she
was “bored.” Appellant’s App. Vol. II p. 20.
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[5] On July 25, 2018, the State filed a petition alleging G.B.W was a delinquent for
committing: Count I, an act that would be considered resisting law enforcement
if committed by an adult, a Level 6 felony; Count II, an act that would be
considered theft if committed by an adult, a Class A misdemeanor; and Count
III, an act that would be considered operating a motor vehicle without ever
receiving a license if committed by an adult, a Class C misdemeanor. G.B.W.
entered an admission agreement on August 1, 2018, and the juvenile court
adjudicated G.B.W. a delinquent on Counts I and II; Count III was dismissed.
The juvenile court ordered G.B.W. to home detention with GPS electronic
monitoring.
[6] On August 24, 2018, G.B.W. cut off the ankle bracelet of her electronic home
monitoring device and left her home in violation of the juvenile court’s home
detention order. G.B.W. escaped for forty-six days. On November 11, 2018,
the State filed another petition alleging delinquency for committing an act that
would be considered escape if committed by an adult, a Level 6 felony.
[7] The predispositional report prepared on December 4, 2018, stated:
[G.B.W.] herself is on a dangerous path. Taking little
responsibility for her actions and watching from across the street
while the victim was in distress after losing her car is insensitive
and cold. Denying a gang affiliation while clearly displaying it
on social media is a serious concern. Stealing a car and evading
police at 14 years old is brazen. Removing a GPS monitor and
remaining on the run for 46 days cannot be minimalized because
she turned herself in. While she may argue that she willingly
turned herself in, the amount of time on the run is close to seven
weeks. Should the probation department discount the days she
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was gone simply because she decided on a random day to turn
herself in? For 45 days, she decided to NOT turn herself in,
which is far longer than the one day in which she decided to turn
herself in. [G.B.W.] has shown little ability to follow simple
orders of the Court as mentioned in a previous portion of this
report. Most recently, when given the opportunity to return
home on GPS for the second time, she continued to disregard the
Court by barely attending school and arguing with teachers.
For any juvenile to succeed within our court system, a parent
(whether ordered to do so or not) must buy in to the services that
have been ordered. It is with great misfortune that [G.B.W.],
with her serious criminogenic thoughts and actions, may never
receive that buy in from [her mother].
Id. at 32. Accordingly, probation recommended that G.B.W. be placed in DOC
at Indiana Girls School.
[8] On December 5, 2018, G.B.W. entered an admission to the escape charge. The
juvenile court proceeded to disposition and sentenced G.B.W. to twenty days
suspended in juvenile detention, home detention for sixty days, “[s]trict and
[i]ndefinite [p]robation,” and ordered G.B.W. to participate in services,
including the Juvenile Justice Center Day Reporting Program (“JJC program”).
Id. at 39.
[9] On February 26, 2019, a modification report was filed, which alleged that
G.B.W. has accumulated eight absences from the JJC program since she began
the program on December 31, 2018. The report also alleged that, on February
24, 2019, G.B.W. “was brought into secure detention . . . for Criminal
Trespass, Resisting Law Enforcement, False Informing and Unauthorized
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Entry of a Motor Vehicle.” Id. at 47. Furthermore, the report alleged that
G.B.W. tested positive for marijuana on February 25, 2019.
[10] On March 6, 2019, the trial court held a joint initial hearing on the February
delinquency petition and the petition for modification. G.B.W. admitted to the
allegations regarding false informing and resisting law enforcement. As to the
modification report, the juvenile court ordered G.B.W. to the DOC. G.B.W.
now appeals her commitment to the DOC.
Analysis
[11] G.B.W. argues that the juvenile court abused its discretion in sentencing her to
the DOC because less restrictive alternatives for G.B.W. were available and
should have been utilized. “The juvenile court has discretion in choosing the
disposition for a juvenile adjudicated delinquent.” D.E. v. State, 962 N.E.2d 94,
96 (Ind. Ct. App. 2011) (citing L.L. v. State, 774 N.E.2d 554, 556 (Ind. Ct. App.
2002), reh’g denied). “The discretion is subject to the statutory considerations of
the welfare of the child, the safety of the community, and the policy of favoring
the least harsh disposition.” Id. “We may overturn [G.B.W.’s] disposition
order only if the court abused its discretion.” Id. “An abuse of discretion
occurs when the juvenile court’s judgment is clearly against the logic and effect
of the facts and circumstances before it, or the reasonable, probable, and actual
deductions to be drawn therefrom.” Id.
[12] Indiana Code Section 31-37-18-6 states:
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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.
[13] G.B.W. compares her case to D.P. v. State, 783 N.E.2d 767 (Ind. Ct. App.
2003). In D.P., a panel of this Court reversed the juvenile court’s placement of
the juvenile in the DOC. In reaching its conclusion, the panel considered that
the juvenile “was not on probation”; the juvenile “did not show any
unresponsiveness to ‘less-restrictive alternatives’”; the juvenile’s only other
contact with the juvenile justice system was successful; and the juvenile’s
“commission of two crimes in a short period of time hardly amounts to the
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sustained period of criminal conduct” our Court has considered in other cases.
D.P., 783 N.E.2d at 770-71.
[14] G.B.W. argues her situation is similar because she too committed only two
offenses within a short period of time, had minimal contact with the juvenile
justice system, and had only a short experience with probation services. In
other words, she argues, her conduct does not rise to the level of “repetitive and
serious misconduct.” Id. at 771. We disagree and find D.P. distinguishable.
Unlike the juvenile in D.P., G.B.W. committed several offenses in a short
period of time, and significantly, committed two of those offenses while on
probation.
[15] At the dispositional hearing on G.B.W.’s escape offense, which was the result
of G.B.W. cutting off her ankle bracelet, the probation department
recommended G.B.W. be committed to the DOC. Still, the juvenile court
ordered a less restrictive alternative in the form of home detention. G.B.W.
then admitted to false reporting and resisting law enforcement, and she did not
adhere to the juvenile court’s dispositional order. The juvenile court’s previous
dispositional orders regarding G.B.W. demonstrate that the trial court
considered and utilized a less restrictive alternative twice, prior to placing
G.B.W. in the DOC. The decision to place G.B.W. in the DOC was not clearly
against the logic and effect of the facts and circumstances before it. See D.E. v.
State, 962 N.E.2d 94, 97 (Ind. Ct. App. 2011) (finding no abuse of discretion
when the juvenile was committed to DOC when the juvenile was on probation
at the time of the delinquent acts; already violated probation once before by
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testing positive for marijuana; and was suspended or expelled from multiple
schools). Accordingly, the juvenile court did not abuse its discretion in placing
G.B.W. in the DOC.
Conclusion
[16] The trial court did not abuse its discretion in placing G.B.W. in the DOC. We
affirm.
[17] Affirmed.
Vaidik, C.J., and Najam, J., concur.
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