B.C. 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 Nov 04 2020, 8:25 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
Renee M. Ortega Curtis T. Hill, Jr.
Lake County Juvenile Attorney General of Indiana
Public Defender’s Office
Myriam Serrano
Crown Point, Indiana Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
B.C., November 4, 2020
Appellant-Respondent, Court of Appeals Case No.
20A-JV-1019
v. Appeal from the Lake Superior
Court
State of Indiana, The Honorable Robert G. Vann,
Appellee-Petitioner. Magistrate
Trial Court Cause No.
45D06-2003-JD-132
Mathias, Judge.
[1] B.C. appeals the juvenile court’s order committing him to the Indiana
Department of Correction (“DOC”).
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[2] We affirm.
Facts and Procedural History
[3] Over a three-month period in 2019, then sixteen-year-old B.C. received three
delinquency referrals. Those referrals ultimately resulted in two adjudications,
one for resisting law enforcement, and the other for dangerous possession of a
firearm. As a result of the second adjudication, B.C. was placed on intensive
probation level 2, which is “the absolute highest form of supervision” offered
outside of secure detention. Tr. p. 8. While on intensive probation, B.C.—in his
mother’s home—received weekly services, including substance abuse
counseling, drug testing, individual therapy, tutoring, and mentoring. Though
B.C. was compliant, he showed little improvement. See id. at 9.
[4] Then, on February 12, 2020, B.C.’s mother found a loaded 9mm handgun
under her son’s bed and called the police. The responding officer secured the
firearm and learned that it had been reported stolen. About a month later, the
State alleged that B.C.—now seventeen years old—was delinquent for
committing what would be Level 6 felony theft of a firearm if committed by an
adult.
[5] At B.C.’s initial hearing, the State amended the delinquent act to Class A
misdemeanor dangerous possession of a firearm if committed by an adult. B.C.
admitted to the offense, and the juvenile court adjudicated him delinquent.
During the hearing, three service providers expressed safety concerns with
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releasing B.C. to his mother pending disposition. So, the court ordered B.C.
remain detained and set a date for the dispositional hearing.
[6] After the hearing was twice continued, B.C. waived the in-person requirement
and agreed to proceed by written recommendations. B.C. argued that he should
be returned to his mother’s home on house arrest with electronic monitoring.
Both the State and the probation department recommended placement in the
DOC. The State cited B.C.’s recent, prior adjudications and his pattern of
escalating behavior involving firearms. B.C.’s probation officer noted, “even
while on house arrest the youth was able to obtain a firearm.” Appellant’s App.
p. 49. The officer also recommended that B.C. receive services while
incarcerated.
[7] A few weeks later, “[a]fter a thorough review of the file and all
recommendations,” the juvenile court granted wardship of B.C. to the DOC. Id.
at 84. The court reasoned that “remaining in the home would be contrary to the
welfare of the child because the child is engaging in dangerous behaviors which
jeopardize” his well-being. Id. at 85. The juvenile court also requested B.C. “be
placed on parole supervision” to ensure that he successfully completes
counseling and certain programs while incarcerated. Id. at 84.
[8] B.C. now appeals his placement.
Standard or Review
[9] A court has broad discretion when choosing the specific disposition of a
juvenile found to be delinquent. M.C. v. State, 134 N.E.3d 453, 458 (Ind. Ct.
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App. 2019), trans. denied, cert denied, sub nom. M.C. v. Indiana, --- S. Ct. ----
(2020). In this context, that discretion is delineated by statute which, in most
circumstances, requires a juvenile court to select the “most family like”
placement. Ind. Code § 31-37-18-6. But placement in a more restrictive
environment, like a public institution, is appropriate when it is in the best
interest of both the juvenile and society. M.C., 134 N.E.3d at 459.
[10] We will thus reverse a juvenile court’s disposition decision only if there has
been an abuse of discretion. Id. at 458. The court abuse its discretion if its
decision 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.
Discussion and Decision
[11] B.C. asserts that the juvenile court abused its discretion in committing him to
the DOC. In making this argument,1 B.C. compares his circumstances to those
in E.H. v. State, 764 N.E.2d 681 (Ind. Ct. App. 2002), trans. denied, where a
panel of this court reversed a juvenile court’s decision to grant wardship of
fourteen-year-old E.H. to the DOC, id. at 685. But, as detailed below, that
1
In a single sentence, B.C. also asserts that “with COVID-19 occurring, B.C.’s safety is at issue in being
placed in location where there are large groups of people in one place.” Appellant’s Br. at 7–8. This argument
is waived as B.C. has not provided any information or argument about either himself or his placement to
demonstrate that his “safety is at issue.” See Ind. Appellate Rule 46(8)(a). Waiver aside, we note that the
DOC has instituted an extensive plan to manage the virus in each of its facilities across the state. See IDOC
Comprehensive Response to Covid-19, https://www.in.gov/idoc/about-idoc/idoc-comprehensive-response-to-
covid-19/ [https://perma.cc/6TSN-WUMU]. And B.C. makes no argument that the DOC’s response is
somehow inadequate.
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comparison is unavailing; and we find that the juvenile court here did not abuse
its discretion.
[12] In E.H., this court, in reversing the juvenile court’s disposition decision,
highlighted four circumstances: E.H. did not have a violent criminal record;
there was no evidence that he was a threat to the community; E.H. had made
“considerable progress” responding to services; and his foster-care placement,
where he had shown “significant improvement,” was a less restrictive
alternative placement. Id. at 685–86. None of these circumstances is present
here.
[13] B.C.’s juvenile record includes several crimes related to violence that he
committed over a short period of time. In less than a year, B.C. accumulated
four delinquency referrals that included allegations of auto theft, resisting law
enforcement, theft of a firearm, dangerous possession of a firearm, and reckless
driving. Those referrals resulted in three adjudications, including the current
offense—a second true finding for Class A misdemeanor dangerous possession
of a firearm if committed by an adult.
[14] Aside from B.C.’s concerning criminal behavior, the juvenile court was also
presented with evidence demonstrating that B.C. was a threat to the
community. One of his counselors explained that, after weekly therapy sessions
for nearly seven months, B.C. “still minimizes his behaviors.” Tr. p. 9. His
probation officer expressed the same concern. Appellant’s App. p. 50. And their
characterization is supported by B.C.’s conduct since he became involved with
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the juvenile justice system. For example, the night after B.C. was released from
a juvenile correctional facility, he was arrested for carrying a firearm. It was not
even nine months later that his mother—with B.C. on the highest form of
supervision outside of secure detention—found a stolen, loaded 9mm handgun
under her son’s bed. And though B.C. said that he needed the gun for
protection from a particular individual, B.C.’s text messages show that he
escalated the conflict to the point of telling the person “that he would be coming
to his street within 10 minutes.” Id. at 43. It is not surprising that B.C.’s
probation officer described him as “almost flippant in his attitude over the
entire situation.” Id.
[15] The record further reveals that B.C. has made little progress responding to
services. One of the providers noted that he “continue[d] to be a little
disheartened that despite the opportunities [B.C.’s] been given” he still
“make[s] these bad decisions.” Tr. p. 10. Indeed, though B.C. received weekly
drug tests, he told his probation officer that he smokes marijuana “ at least five
times a day.” Appellant’s App. p. 48. In addition to failing fourteen of nineteen
drug tests, B.C. also “attempted to falsify” two of the screens. Id. And, as noted
above, B.C.’s counselor expressed dismay that, during sessions, he continues to
minimize his actions. As B.C.’s probation officer expressed, after seven months
of services, the providers “are not seeing any type of definable change.” Tr. p. 8.
[16] Finally, the record fails to reveal a viable least restrictive placement. B.C.
argued to be returned to his mother’s home, but two service providers expressed
safety concerns with that placement, where “there is a lack of supervision and
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consistency.” Id. at 10. Indeed, B.C. was under his mother’s supervision when
he obtained the stolen firearm. And though his probation officer contacted three
placement facilities, each declined to accept B.C., with one location citing “the
seriousness of the child’s charges” and his resistance “to treatment services.”
Appellant’s App. p. 50.
[17] In sum, the record supports the juvenile court’s conclusion that a more
restrictive placement for B.C. was in the best interest of both himself and
society. See M.C., 134 N.E.3d at 459. Thus, the court did not abuse its discretion
in committing B.C. to the DOC.
[18] We make one final observation. In reviewing B.C.’s case file, we learned that he
is likely to be released from the DOC before this decision is issued. 2 We remind
B.C. of a July 2019 interview in which he told a psychologist that, if given three
wishes, one would be to “start over.” Appellant’s App. p. 77. He now has that
opportunity. And we sincerely hope that B.C.—now an adult—has learned
from his past, avoids compromising situations going forward, and ultimately
chooses to be a law-abiding citizen.
Conclusion
[19] The juvenile court’s decision to place B.C. in the DOC was not an abuse of
discretion.
2
B.C. is scheduled to be released from DOC custody on November 16, 2020.
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[20] Affirmed.
Bradford, C.J., and Najam, J., concur.
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