K.L.W. v. State of Indiana ( 2013 )


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  • Pursuant to Ind. Appellate Rule 65(D), this
    Memorandum Decision shall not be
    regarded as precedent or cited before any
    court except for the purpose of establishing
    the defense of res judicata, collateral
    estoppel, or the law of the case.
    ATTORNEY FOR APPELLANT:                             ATTORNEYS FOR APPELLEE:
    MARK F. JAMES                                       GREGORY F. ZOELLER
    Anderson, Agostino & Keller P.C.                    Attorney General of Indiana
    South Bend, Indiana
    MICHAEL GENE WORDEN
    Deputy Attorney General
    Indianapolis, Indiana
    May 24 2013, 9:18 am
    IN THE
    COURT OF APPEALS OF INDIANA
    K.L.W.,                                             )
    )
    Appellant-Respondent,                        )
    )
    vs.                                  )      No. 71A05-1211-JV-609
    )
    STATE OF INDIANA,                                   )
    )
    Appellee-Petitioner.                         )
    APPEAL FROM THE ST. JOSEPH PROBATE COURT
    The Honorable Peter F. Nemeth, Judge
    Cause No. 71J01-1207-JD-316
    May 24, 2013
    MEMORANDUM DECISION - NOT FOR PUBLICATION
    CRONE, Judge
    Case Summary
    K.L.W. admitted to committing theft, a class D felony if committed by an adult, by
    stealing tequila from a store in St. Joseph County. The trial court ordered him placed in a
    youth facility in Vincennes. K.L.W. contends that his placement constitutes an abuse of
    discretion. We affirm.
    Facts and Procedural History
    The relevant facts are undisputed.1 K.L.W. was born March 23, 1996. On March 7,
    2012, he stole tequila from a store in St. Joseph County. On July 3, 2012, the State filed a
    delinquency petition alleging that K.L.W. committed theft, a class D felony if committed by
    an adult. At a hearing on July 25, 2012, K.L.W. admitted the allegation. The trial court
    accepted K.L.W.’s admission and found him to be delinquent. The court also ordered the
    probation officer to prepare a predispositional report and set a dispositional hearing.
    At the dispositional hearing on October 30, 2012, the probation officer said that
    K.L.W. had “spent 96 days in secure custody with ten incident reports at the time of today’s
    hearing.” Tr. at 3. She also said,
    [K.L.W.] admitted his involvement in the offense and reported remembering
    very little about his actions as he was black-out drunk and high when it was
    committed. He acknowledged a significant history with illegal substance use,
    including multiple prescription pills, marijuana and cocaine, alcohol and
    admitted that he’s used various substances with his father. [K.L.W.]
    overdosed last summer that resulted in a hospitalization and admitted to a
    history of self-mutilating behaviors causing great concern for his safety if he
    were to remain within the community.
    1
    Indiana Appellate Rule 46(A) provides that an appellant’s brief “shall contain” a statement of facts,
    which “shall describe the facts relevant to the issues presented for review but need not repeat what is in the
    statement of the case.” K.L.W.’s brief does not contain a statement of facts, even though the issue presented is
    inherently fact-sensitive. We strongly encourage counsel to comply with this rule in future appeals.
    2
    [K.L.W.] began attending the eleventh grade at Mishawaka High
    School last year where [he] has 19 credits and [a] history of behavior
    problems. He received one in-school and two out of school suspensions for
    refusing to take out a lip piercing twice and getting caught buying drugs on
    school property. [K.L.W.] was not allowed to return to the regular days
    program at the high school, but allowed to participate in Mishawaka High
    School’s Learning Center Online Program 8:00 a.m. until 11:15 a.m. He
    admitted he often appeared late and drunk to class and never stayed the full
    day when in the program.
    Again, diagnostic evaluation was completed by Dr. Sibilla and Dr.
    Sibilla noted that it would appear evident that [K.L.W.] has sought to manage
    the distress by way of running away and living with friends as well as
    becoming dependent on alcohol and [illicit] drugs. His overdose last year was
    nearly fatal and as such, serves as a call to offer him the maximum level of
    chemical dependency treatment available for adolescents. After the probation
    department staffed this case a second time, we are recommending that
    [K.L.W.] be placed at the Southwest Indiana Regional Youth Village. We
    believe he is amenable to treatment and can benefit from the intensive
    substance abuse treatment program that Southwest can offer him. It is
    believed that if he does not address his extensive illegal substance use, his
    angry and defiant attitude and anti-social behaviors, [K.L.W.] will continue to
    abuse substances, commit delinquent acts placing himself in very dangerous
    situations.
    Tr. at 3-5. In response, K.L.W.’s counsel noted that the theft was K.L.W.’s first offense and
    asked that he be placed with his grandparents because “[n]obody is going to be able to go
    down [to Vincennes] and visit him” and “[n]obody is going to be there to participate in the
    treatment.” 
    Id. at 6.
    Following the hearing, the trial court issued an order that reads in pertinent part as
    follows:
    The child has not complied with the compulsory school attendance law and is
    in need of an education.
    ….
    3
    The Probation Department has made reasonable efforts to prevent removal:
    [K.L.W.’s mother] discussed consequences within the home she has attempted
    to provide for [K.L.W.] to address his delinquent behavior and illegal
    substance use. She reportedly attempted to seek outpatient therapeutic
    treatment for [K.L.W.] but he refused to attend. In addition, Mishawaka High
    School provided appropriate consequences to address [K.L.W.’s] behavioral
    problems in and out of school suspensions as well as a change in the
    educational setting.
    And it is the child’s best interest to remove the child from the home, and that it
    would be contrary to the welfare of the child to remain in the child’s home.
    This Dispositional Order is consistent with the safety and the best interest of
    the child and is the least restrictive and most appropriate setting available close
    to the parents’ home, least interferes with the family’s 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.
    The Court further finds its Disposition is the least restrictive alternative to
    insure the child’s welfare and rehabilitation and the safety and welfare of the
    community.
    ….
    The Probation Department has recommended, and the Court concludes, that
    said child is an appropriate candidate for placement in a private child caring
    facility, i.e. Southwest Regional Youth Village in Vincennes, IN. The juvenile
    is to participate and successfully complete placement and follow all rules and
    regulations.
    Appellant’s App. at 10-11. This appeal ensued.
    Discussion and Decision
    K.L.W. challenges his placement in the Vincennes youth facility. “The choice of the
    specific disposition of a juvenile adjudicated a delinquent child is a matter within the sound
    discretion of the [trial] court and will be reversed only if there has been an abuse of that
    discretion.” K.A. v. State, 
    938 N.E.2d 1272
    , 1274 (Ind. Ct. App. 2010), trans. denied (2011).
    4
    “An abuse of discretion occurs when the [trial] 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.” 
    Id. “Although the
    [trial] court is given wide latitude and great flexibility in determining
    the disposition of a delinquent child, its discretion is circumscribed by statute.” D.A. v. State,
    
    967 N.E.2d 59
    , 65 (Ind. Ct. App. 2012). The relevant statute provides,
    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.
    Ind. Code § 31-37-18-6.
    K.L.W. contends that the trial court’s disposition is an abuse of discretion because he
    has no prior delinquency adjudications, was never previously offered probation services, and
    was never adjudicated a truant. He argues that the disposition “is entirely contrary to the
    5
    provisions of I.C. 31-37-18-6 and was designed to punish [him] rather than offer
    rehabilitation.” Appellant’s Br. at 4.
    We disagree. K.L.W. ignores his admitted history of serious polysubstance abuse,
    including using various substances with his own father. He was hospitalized after a near-
    fatal overdose and has a history of self-mutilation. K.L.W. also has a history of behavior
    problems in school and often showed up late and drunk to class. His mother attempted to
    seek outpatient therapy for him, but he refused to attend. K.L.W. would run away from home
    and live with friends. And prior to the delinquency hearing, he was in custody for ninety-six
    days and had ten incident reports.
    K.L.W. cites no authority for the proposition that a juvenile must have a history of
    adjudicated delinquent activity before he may be placed in a facility away from his family
    and community. K.L.W. is negatively influenced by his father and disobeys his mother, and
    his antisocial behavior has adversely affected the safety of his community. The Vincennes
    facility was specifically recommended by the probation department because K.L.W. could
    benefit from the intensive substance abuse treatment program offered there; such treatment
    clearly would be in his best interest. K.L.W. claims that “the least restrictive and most
    appropriate setting close to his parents’ home was not utilized,” Appellant’s Br. at 3, but he
    offers no suitable alternative. Based on the foregoing, we cannot conclude that K.L.W.’s
    disposition is an abuse of discretion. Therefore, we affirm.
    Affirmed.
    ROBB, C.J., and FRIEDLANDER, J., concur.
    6
    

Document Info

Docket Number: 71A05-1211-JV-609

Filed Date: 5/24/2013

Precedential Status: Non-Precedential

Modified Date: 10/30/2014