D.J. v. State of Indiana (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Oct 19 2020, 8:52 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Glen E. Koch II Curtis T. Hill, Jr.
Boren, Oliver & Coffey, LLP Attorney General of Indiana
Martinsville, Indiana
Steven Hosler
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
D.J., October 19, 2020
Appellant-Respondent, Court of Appeals Case No.
19A-JV-3029
v. Appeal from the Brown Circuit
Court
State of Indiana, The Honorable Mary Wertz, Judge
Appellee-Petitioner, Trial Court Cause No.
07C01-1710-JD-153
Robb, Judge.
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Case Summary and Issue
[1] D.J. was adjudicated a delinquent child in 2018 for acts that would have been
resisting law enforcement and disorderly conduct if committed by an adult. He
was placed on formal probation for six months. In the ensuing months, D.J.
continued to commit delinquent acts that resulted in the juvenile court
modifying its dispositional order multiple times to extend D.J.’s probation and
order his placement in a variety of facilities. In November 2019, after D.J.
admitted to committing additional delinquent acts, the juvenile court modified
its dispositional order to award wardship of D.J. to the Indiana Department of
Correction (“DOC”). D.J. appeals this modification, raising one issue for our
review: whether the juvenile court abused its discretion in awarding wardship
to the DOC when a less restrictive alternative was available. Concluding the
juvenile court did not abuse its discretion in committing D.J. to the DOC
because no less restrictive placement was consistent with his best interests and
the safety of the community, we affirm.
Facts and Procedural History
[2] In late October 2017, thirteen-year-old D.J. was detained when he got mad and
ran from school, created a disruption in a nearby doctor’s office, and was
combative with police when they came to calm him down. At the time, D.J.
had already been on an informal adjustment, his family had an open case with
the Department of Child Services, and he had been diagnosed with bipolar and
oppositional defiance disorders, for which he was receiving services. D.J. was
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released from detention to the custody of his mother pending admission to an
acute care facility. After completing his stay at the facility, he returned to the
home of his mother and continued to receive services. In December, a petition
was filed alleging D.J. was a delinquent child for committing acts that, if
committed by an adult, would be resisting law enforcement, a Class A
misdemeanor, and disorderly conduct, a Class B misdemeanor. In January
2018, D.J. admitted to having committed the delinquent acts and was placed on
formal probation for six months. Terms of his probation included that he
“[c]ommit no acts of physical aggression or damage any property.” Appellant’s
Appendix, Volume 2 at 45.
[3] In April, the probation department filed a petition seeking modification of the
dispositional order alleging that D.J. had committed disorderly conduct and
criminal mischief, both Class A misdemeanors if committed by an adult, when
he behaved aggressively and caused property damage at school. D.J. admitted
the allegations in the petition to modify and the juvenile court modified the
dispositional order to continue D.J.’s probation until further order of the court
and place him at Gibault Children’s Services (“Gibault”) in their residential
CARE program. A review report filed in July 2018 by the probation
department stated that D.J.’s transition to residential treatment in the CARE
program had been “quite difficult”: from May 4 to July 8 he had eighty-four
incidents of non-compliance, including run away attempts, aggression toward
others, leaving assigned areas, verbal aggression, peer agitation, and property
destruction and had caused two significant injuries to himself because of his
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“out of control behaviors[.]” Id. at 87. Nonetheless, the treatment team felt he
was making progress and that a recent change of attitude might lead him to
focus on his treatment and address his behaviors. At a periodic review hearing
on July 17, 2018, the juvenile court continued D.J.’s placement in the CARE
program.
[4] On August 23, 2018, the probation department filed a request for an emergency
change of placement to a secure program at Gibault because D.J. had
swallowed two harmful objects “so he could die.” Id. at 90. The juvenile court
granted the request and ordered the change of placement. In October, while in
the secure program, D.J. was transported to a doctor’s appointment where he
became upset. On the return trip, he kicked the window out of the van and
fled, nearly being hit by a car as he ran across a road. The probation
department filed a petition seeking to modify the dispositional order alleging
D.J. had committed acts that would be criminal mischief, a Class B
misdemeanor, and escape, a Level 6 felony, if committed by an adult. D.J. was
placed in secure custody at Dickinson Juvenile Justice Center (“Dickinson”)
pending a hearing because Gibault was unwilling to let him continue in their
program. D.J. subsequently admitted the allegations and the juvenile court
continued his probation until further order of the court and ordered him
returned to Dickinson pending acceptance and placement at Wernle Youth and
Family Treatment Center (“Wernle”). D.J. was placed at Wernle on
November 6, 2018. While at Wernle, D.J. had a psychological diagnostic
evaluation and was diagnosed with disruptive mood dysregulation disorder,
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conduct disorder, and bipolar one disorder. See Transcript, Volume II at 120-
21. At the time of a review hearing in May 2019, D.J. remained at Wernle,
where he was “meeting the expectations of the program and it is expected that
he will be recommended to discharge before the beginning of school in August,
2019” at which time he would return to his mother’s home and continue on
probation. Appellant’s App., Vol. 2 at 146.
[5] In early July, however, D.J. exhibited “out of control, aggressive behaviors” at
Wernle and was taken first for a mental health assessment and then placed at
Harsha Behavioral Center for a few days. Id. at 151. When D.J. was released
back to Wernle staff, he threatened an officer and ran away. On July 15, 2019,
the probation department filed a petition to modify the dispositional order
alleging D.J. had violated his probation by committing what would be
intimidation, a Class A misdemeanor if committed by an adult, as well as
“eloping from staff, displaying aggressive, unsafe behaviors at Wernle that
resulted in an acute care placement, fail[ing] to comply with his individual
treatment plan . . ., and refusing to return to Wernle[.]” Id. at 152. At that
time, Wernle was willing to accept D.J. back into its secure private unit. After
D.J. returned to Wernle, however, his behavior escalated to the point that he
stopped communicating with his mother, he committed additional delinquent
acts such that the probation department filed two more petitions to modify the
dispositional order, and in September, Wernle indicated it was no longer
willing to house D.J. and requested his immediate removal from the program.
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D.J. was returned to secure detention at Dickinson pending the outcome of the
petitions to modify.
[6] On October 8, 2019, D.J. admitted to the allegations of the pending petitions to
modify, including that he had violated his probation by committing acts that
would be criminal mischief and two counts of disorderly conduct if committed
by an adult. D.J.’s probation officer indicated she was having trouble finding a
placement for him; she testified that the probation consultant had advised her to
apply to Midwest Academy and DePaul Academy and “if he was denied
admission to both of those facilities, that there would be no other agency in
Indiana that would accept him.” Tr., Vol. II at 190. And indeed, he had been
denied admission by both facilities because of his history of aggressive, out of
control, and self-injurious behaviors. She was pursuing a state mental health
admission at the Indiana Neurodiagnostic Institute as “frankly, . . . the only
thing I have found available for [D.J.] at this time. Other than a DOC
commitment and I would prefer not to go there.” Id. at 189.
[7] On November 27, 2019, the juvenile court held a dispositional hearing.
Jennifer Acton, the county’s chief probation officer,1 informed the court that
D.J. had been denied admission into the state hospital. He had been accepted
at a residential facility in Schererville called Compagna Academy, but she was
1
Brenda Dewees, D.J.’s regular probation officer, was unable to attend the dispositional hearing and Ms.
Acton attended in her place, attesting that she had been “firmly apprised of all the nature and circumstances
of . . . this action[.]” Tr., Vol. II at 198.
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concerned that “it is very similar to Wernle. A program he’s been at before.
[A]nd the security there was . . . not . . . sufficient to provide him the safety he
needs.” Id. at 199. She was also concerned because the facility was near
Chicago which would make it difficult for his mother to participate in family
counseling and regular visitation and which would also pose a danger if he were
to escape. Dickinson would not accept D.J. back into secure detention because
he had battered several staff members, returning him to his family was not
appropriate because of his behavioral issues, and no other suitable placement
was willing to take him. Thus, Acton felt there were no options other than
placement at DOC because “we’ve tried to give it some time but his . . .
behaviors have continued, they’ve increased, they’ve gotten more severe. . . .
[B]ut there is programming at [DOC], the Division of Youth Services.” Id. at
200.
[8] D.J.’s attorney asked what the downside of trying Compagna was, given that
DOC would remain an option if he did not succeed there, and Acton answered
that the downside was “he’s left these types of facilities before and the behaviors
are continuing[;] that makes him a danger to himself, . . . other students and
staff.” Id. at 202-03. She had not personally visited Compagna but spoke with
the Chief Probation Officer in Lake County, a probation officer who handles
the juveniles sent to that facility, and the local Department of Child Services
consultant. The answers she got from each of those people led her to believe
that “DOC is better prepared to handle [D.J.] and . . . it’s a more secure facility
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and he won’t be able to escape. And . . . they’ll have a better ability to handle
his behaviors.” Id. at 203.
[9] D.J. testified that he would rather go to Compagna and that he understood that
if he messed up there, there would be no other option than for him to go to
DOC. Knowing that, he believed he would finally be able to control his
behavior and his emotions and stop lashing out. He asked for “one last chance.
That’s all it takes, all it takes [is] one last chance.” Id. at 232.
[10] At the conclusion of the evidence, the juvenile court stated:
I’m truly sadden[ed] that we are here today considering
Department of Corrections for you. It’s . . . a series of events that
I don’t think anyone anticipated throughout these proceedings
until the last few months. . . . [T]his all started with your
resisting authority and it has continued to be the . . . beginning
and the end of everything that the Court’s tried to do and
Probation has tried to do and treatment facilities have tried to do,
is that you just cannot . . . control yourself. And I think that had
your time in Dickenson [sic] not been so very violent . . . to the
point that a detention facility is telling the Court that they can’t
take you back. That’s . . . just so significant. . . . I don’t have
any faith that if you go to Compagna that you will be able to
control yourself. . . . Any more than you’ve not been able to do
so at Wernle and at secure detention. . . . I don’t think DOC is a
good option, but I don’t know that I have any other option[.]
***
I wished that the mental health commitment at State
Hospitalization would have worked. But it didn’t. And after
considering all the evidence and the record of the proceeding and
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the psychological evaluation, I am awarding wardship to the
Department of Corrections for housing. . . . And the reason is
that . . . your conduct since after that May review hearing has
really left the Court with no other realistic option.
Id. at 229-31. The court’s written order stated that “[a]fter careful
consideration, the Court finds that a commitment to the Indiana Department of
Corrections is necessary and that no less restrictive alternative exists.”
Appealed Order at 3. D.J. now appeals this disposition.
Discussion and Decision
[11] D.J. asserts that the juvenile court abused its discretion in modifying his
placement “because of the low level of offenses and the poor investigation to
alternatives to DOC placement.” Appellant’s Brief at 11. The disposition of a
juvenile adjudicated a delinquent is a matter committed to the juvenile court’s
discretion, subject to the statutory considerations of the child’s welfare,
community safety, and the policy favoring the least harsh disposition. R.H. v.
State, 937 N.E.2d 386, 388 (Ind. Ct. App. 2010). Those statutory
considerations are found in Indiana Code section 31-34-19-6, which 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:
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(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.
A juvenile court has wide latitude and great flexibility in dealing with juveniles;
however, its goal is to rehabilitate rather than punish. C.T.S. v. State, 781
N.E.2d 1193, 1203 (Ind. Ct. App. 2003), trans. denied. We review the juvenile
court’s disposition and modification orders for an abuse of discretion, which
occurs if its decision is clearly against the logic and effect of the facts and
circumstances before it or the reasonable inferences that may be drawn
therefrom. R.H., 937 N.E.2d at 388.
[12] D.J. argues his commitment to DOC was an abuse of discretion because a less
restrictive alternative was available; namely, placement at Compagna.
However, even if less harsh options are available to the juvenile court, there are
still times when commitment to a suitable institution is in the best interest of the
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juvenile and of society. D.S. v. State, 829 N.E.2d 1081, 1085 (Ind. Ct. App.
2005). Indiana Code section 31-34-19-6 requires the juvenile court to consider
the least restrictive placement only if that placement comports with the safety
needs of the community and the child’s best interests. See J.B. v. State, 849
N.E.2d 714, 718-19 (Ind. Ct. App. 2006) (concluding the juvenile’s placement
in DOC was warranted because the less-restrictive placement suggested by him
would have fallen short of meeting the community’s safety needs and his best
interests given testimony he was a danger to himself and others until he receives
substance abuse treatment and learns to modify his criminal behavior).
[13] Here, the juvenile court specifically stated that placement in a juvenile
correctional facility through the DOC was warranted because of D.J.’s “violent
conduct and history of escape[.]” Appealed Order at 2. The court noted that
“extensive efforts” had been made to provide D.J. with care, treatment, and
rehabilitation, including “supervised probation, Wrap Around Services, secure
detention, placement at Gibault in the CARE Program and then the [secure]
Program . . ., placement at Wernle [ ], a mental health assessment . . . followed
by placement [at] Harsha Behavioral Center, and then followed by a return to
Wernle.” Id. at 1. Despite these many attempts to help D.J. correct his
behavior, he failed to engage well in services—lashing out violently against
staff, destroying property, and absconding when he saw an opportunity. He
was ultimately removed from Wernle for aggressive, destructive, and self-
injurious behaviors that were escalating in severity. Dickinson, his most recent
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placement, would not accept him back into secure detention following the
dispositional hearing for similar reasons.
[14] Despite D.J.’s “low level of offenses[,]” Appellant’s Br. at 7, the juvenile court
considered the danger he posed to the safety of the community in general,
mentioning D.J.’s violent behavior toward service providers while in various
placements. The juvenile court noted that D.J. is resistant to authority and that
“these people that go to work [in these facilities] don’t deserve to get hit and
[have] things thrown at them.” Tr., Vol. II at 229. Further, the fact that D.J.’s
behavior had not been curbed despite the many services offered to him showed
that such services, including a placement that was nearly identical to
Compagna, were no longer in D.J.’s best interests because they were not
beneficial. Additional investigation into Compagna was unnecessary where it
was clear that no facility short of DOC was secure enough to control D.J.’s
“aggressive and violent” behaviors and history of escape. Appealed Order at 2.
We also note that the juvenile court acknowledged D.J.’s mental health issues.
Unfortunately, he was denied placement in a mental health institute, but the
juvenile court recommended that DOC consider those issues in its plan for
D.J.’s care, treatment, and rehabilitation.
[15] At only fifteen years old, D.J. has already had many contacts with the juvenile
court, repeatedly violating the terms of his probation and absconding from
various placements. His behavior has escalated rather than being successfully
addressed. Although D.J. contends that Compagna would be the least
restrictive placement and that the juvenile court should have ordered him
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placed there, he has not shown that there is a reasonable probability that the
program would benefit him any more than other, similar programs have. And
his own behavior precludes any other options from being willing to work with
him. We therefore conclude that it was reasonable for the juvenile court to find
that the many less restrictive services and opportunities offered to D.J. had not
been successful and that he posed a danger to both himself and to the
community. Cf. E.H. v. State, 764 N.E.2d 681, 686 (Ind. Ct. App. 2002)
(concluding juvenile’s commitment to DOC was in error where there was a less
restrictive and appropriate alternative available, no evidence that juvenile was a
threat to the community, and no explanation for commitment other than it
“being the typical next step”), trans. denied. The juvenile court was within its
discretion to conclude that commitment to a less restrictive environment than
the DOC was not in D.J.’s best interests or consistent with the safety of the
community.
Conclusion
[16] The juvenile court did not abuse its discretion when it modified its dispositional
order and awarded wardship of D.J. to the DOC and its order is therefore
affirmed.
[17] Affirmed.
Crone, J., and Brown, J., concur.
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