D.P. v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Mar 09 2018, 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
Leanna Weissmann Curtis T. Hill, Jr.
Lawrenceburg, Indiana Attorney General of Indiana
Lyubov Gore
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
D.P., March 9, 2018
Appellant-Defendant, Court of Appeals Case No.
69A04-1710-JV-2531
v. Appeal from the Ripley Circuit
Court
State of Indiana, The Honorable Ryan J. King,
Appellee-Plaintiff Judge
Trial Court Cause No.
69C01-1606-JD-15
May, Judge.
[1] D.P. appeals the juvenile court’s entry of an order placing him in the
Department of Correction (“DOC”). D.P. argues the juvenile court abused its
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discretion by placing him in the DOC just because he “demonstrated a little
teenaged attitude while at the YES Home[.]” 1 (Appellant’s Br. at 13.) As we
determine the juvenile court did not abuse its discretion when it placed D.P. in
the DOC, we affirm.
Facts and Procedural History
[2] In April 2016, D.P. stole three items from a store and a few days later ran away
from home. On July 6, 2016, the State requested permission to file a Petition
Alleging Delinquency for the status offense of runaway 2 and for an act that, if
committed by an adult, would be Class A misdemeanor theft. 3 The juvenile
court granted the State permission to file the petition.
[3] On September 1, 2016, at the dispositional hearing, D.P. admitted these acts.
The juvenile court adjudicated D.P. delinquent and “award[ed] wardship of
[D.P.] to the [DOC]” with that commitment suspended “on the condition [sic]
[D.P.] shall be placed under the supervision of the Ripley County Probation
Department and he shall comply with conditions of probation for a period of
355 days[.]” (App. Vol. II at 143) (emphasis in original). Conditions of
probation included paying fees; residing with his mother; not consuming,
1
YES Home, “Youth Encouragement Services,” is a “residential group home for youths ages 13 thru 18,
providing a structured, nurturing environment for abused, neglected and abandoned children.”
https://www.yeshome.org/ (last visited Feb. 23, 2018).
2
Ind. Code § 31-37-2-2 (2015).
3
Ind. Code § 35-43-4-2 (2014).
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amongst other things, illegal substances, alcoholic beverages or tobacco; and
participating in therapy.
[4] On September 14, 2016, the State filed a petition to modify D.P.’s dispositional
order due to D.P.’s violation of the conditions of probation. Namely, when
D.P. reported to the probation department, his parents “advised that when en
route to the Probation Department, [D.P.] attempted to jump out of the moving
car[.]” (App. Vol. III at 2.) At the appointment, D.P. continued to make
suicidal statements. The probation officer requested detention of D.P. because
“he was a risk to himself and the community[.]” (Id. at 3.) The request was
granted. The State requested that, along with the previously ordered conditions
of probation, D.P.’s residence be changed to the Dearborn County Juvenile
Detention Center and he be ordered to “participate in a Psychological
Evaluation with Connor and Associates.” (Id.) On September 26, 2016, the
State amended its petition to include allegations of marijuana possession.
[5] Dr. Schwerzler completed a psychological evaluation of D.P. and diagnosed
him with “Conduct Disorder, Marijuana Use Disorder, unspecified, and
Narcissistic Personality Traits.” (Id. at 31.) Dr. Schwerzler recommended
therapy, substance abuse counseling, drug testing, and supervised probation.
He noted D.P.’s “suicidal threat was a clear manipulation [but] cautioned that
when [D.P.] is angry he may act impulsively and put himself or others in
danger to prove his point.” (Id.)
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[6] D.P. admitted the allegations of incorrigibility and marijuana possession. The
juvenile court denied the State’s request to place D.P. in the juvenile detention
center. Instead, the court ordered the previously-ordered conditions of
probation to continue and added the following:
l. The juvenile and parents shall participate in intensive
individual and family therapy and Home-based Caseworks
Services with the Intercept Program as provided by Youth
Villages, as approved by the Probation Service Consultant, as
directed by the Probation Department as a State Paid Service,
and follow all recommendations as made by the therapist.
2. The juvenile shall participate in psychiatric services, if
recommended by a mental health provider.
3. The juvenile shall report to the Ripley County Probation
Department for weekly urine drug screens at the discretion of the
Probation Department.
4. The juvenile shall report any absence from school within 24
hours and provide documentation.
5. The juvenile shall obtain a Substance Abuse Evaluation, at his
expense within thirty (30) days, and follow all recommendations
for treatment and care.
(Id. at 40-41.)
[7] Until June 2017, D.P.’s violations were traffic-related. On June 4, 2017, D.P.
“did not abide by the curfew set by the Probation Department and left the State
of Indiana without permission from his parents or Probation Officer.” (Id. at
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49.) D.P. reported he had traveled to West Virginia, Virginia, Tennessee,
Kentucky, and Georgia. He funded this travel with a fraudulently-acquired
credit card. On his return, when given a drug test, D.P. said he would fail it.
He did. The probation officer asked D.P. how he passed a recent pre-
employment drug screen. D.P. “stated he had ‘faked it’[.]” (Id.) When
probation officers searched D.P.’s vehicle and his bedroom at his mother’s
house, they found “one bottle of Strawberry Moonshine, Marijuana seeds and
stems, one pill bottle containing the residue of urine, a credit card for [D.P’s
father], a pair of brass knuckles, and a knife.” (Id. at 50.) The State filed a
petition for modification of dispositional order.
[8] On July 28, 2017, police stopped D.P. for speeding. The subsequent intake
information sent to the State alleged D.P. was driving while suspended, a Class
A misdemeanor if committed by an adult. 4 The State amended its petition for
modification. On August 11, 2017, police stopped D.P. for driving while
suspended. The police found marijuana and cigarettes in his vehicle. The
intake information sent to the State alleged D.P. had committed maintaining a
common nuisance, a Level 6 felony if committed by an adult; 5 driving while
suspended, a Class A misdemeanor if committed by an adult; and possession of
4
Ind. Code § 9-24-19-2 (2016).
5
Ind. Code § 35-45-1-5(c) (2017).
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marijuana, a Class A misdemeanor if committed by an adult. 6 (Id. at 110.) The
State filed a second amended petition for modification.
[9] At the modification hearing, D.P. expressed remorse. The State, with great
reluctance, suggested D.P. be placed in YES Home for thirty days, rather than
the DOC. The juvenile court, also with great reluctance, agreed. It warned
D.P. that this was his very last chance. The juvenile court told D.P.:
[Y]ou don’t give me much confidence. The only confidence you
give me is that you’re gonna do something stupid and that’s the
only reasonable conclusion that can be drawn from your Petition
and your modification and what you just said today. I mean, this
is a pretty significant violation. I’ll place you at the YES Home
until September 28th. If you mess up, you get kicked out of the
YES Home or anything like that, you’re just, you’re going to go
to detention until September 28th. So, once you get there, once
you get yourself checked in, if you get lippy, you leave, you get
caught with marijuana or anything like that, you’re going to go
there until our next hearing, there being the Dearborn County
Detention facility, as soon, that’s just going to be based upon any
information. If you go there and you don’t qualify, for whatever
reason, which I guess you’ve been approved so far, but I, I think
there’s a fair chance you’re going to get there and with your
attitude and what you’ve done so far, they’re going to think, uh,
“He’s not good for this place.”, [sic] and as soon as we get that
call, then you’re going to go to Dearborn County Detention
facility until the 28th, um, because I don’t want you there if
you’re going to be corrosive to the other kids that are there and
you’re older than most of them, um, and you ought to be a
leader, but I, you haven’t showed the Court that yet, so if you, if
6
Ind. Code § 35-48-4-11(a)(1) (2017).
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you’re even, if there’s even a wafting smell that you’re not doing
exactly what you’re told, then you’re going to go to Dearborn
County and then we’ll just let you sit there for thirty (30) days
and then bring you back.
(Tr. at 12-13.) The juvenile court reiterated its warnings to D.P. in several
different ways. It warned D.P. about the consequences of even a minor slip-up
while he was at YES Home.
[10] When D.P. returned for the September 28, 2017, hearing, Amy Phillips, the
Director of YES Home, said:
. . . [D.P.] has not broken any major rules, however, he is not
making progress through the phase program. Um, as we, when
we meet with him, both my, and the staff and I met yesterday to
di . . . to discuss his progress. Uh, he, several times, has stated
he’d rather be at DOC than at the YES Home. Uh, my staff has
bent over backwards to get him to work and to college. Um, very
little gratitude and very much an attitude of, um, almost like he’s
doing, and this sounds awkward, but like he’s doing us a favor
being at the YES Home. My staff have worked countless hours
just in transportation, Your Honor, um, trying to, so that we can
maintain what he did have going for him, that was going well,
which was work and school. However, as far as he, he is not
able to identify any of his behaviors that have placed him at the
YES Home. He, I, just this week, went over his, um, probation
orders which stated his violations. He argued almost every single
point, including the Possession of Marijuana and the use of
marijuana, which he does not see an issue with, um, and has
several times indicated to me that, that’s not a problem. If he
was at any other state and that it wouldn’t be an issue, even
though I’ve indicated to him he is a juvenile and that is illegal.
(Id. at 20.)
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[11] Because of D.P.’s age, the fact he was attending college, rather than high
school, and because he was deemed a flight risk, Kerri Fox, D.P.’s probation
officer, said D.P.’s residential placement options were limited. The YES Home
was one of the few residential placements that would accept D.P. but it was not
working out there. She recommended D.P. be placed at the DOC because
“he’s out of options” and such a placement would be in D.P.’s best interest.
(Id. at 27.)
[12] D.P. testified he was working two part-time jobs, attending Ivy Tech
Community College, had been accepted to three universities, and had paid off
his probation fees. D.P. expressed homesickness and remorse for his actions
that resulted in his placement at YES Home. He admitted he is “not really
good with communication skills [and he] kind of come[s] across as rude
sometimes[.]” (Id. at 32.) He said he thinks he was “misunderstood” at the
YES Home. (Id. at 37.)
[13] Not finding D.P.’s testimony compelling, the juvenile court ordered D.P. be
removed from YES Home and “transported . . . to the Logansport Juvenile
Intake Facility[.]” (App. Vol. III at 138-39.) The juvenile court found he
admitted to the violations of the conditions of his probation and had “at least
four (4) prior modifications of his Probation.” (Id. at 138.) The juvenile court
found placement in the DOC to be the “least restrictive placement and in the
child’s best interest.” (Id.)
Discussion and Decision
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[14] D.P. asserts the juvenile court abused its discretion in placing him in the DOC.
He argues that although he had several violations when he lived with his
mother, he had not broken the rules at YES Home and placement in the DOC
was not the least restrictive environment in which he could have been placed.
He requests he either be placed with his mother or back at YES Home.
[15] We initially note that “the purpose of the juvenile process is vastly different
from the criminal justice system.” R.H. v. State, 937 N.E.2d 386, 388 (Ind. Ct.
App. 2010). The goal of juvenile proceedings is “rehabilitation so that the youth
will not become a criminal as an adult.” Id. (emphasis in original). The
juvenile court has discretion in choosing the disposition for a juvenile
adjudicated delinquent. L.L. v. State, 774 N.E.2d 554, 556 (Ind. Ct. App. 2002),
reh’g denied, trans. denied. This 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.; see also Ind. Code § 31-34-19-
6. We may overturn D.P.’s dispositional order only if the court abused its
discretion. L.L., 774 N.E.2d at 556. 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.[16] D.P. alleges his placement in the DOC was because the YES Home did not
want to provide transportation to D.P.’s jobs and college and because D.P. gave
them “teenaged attitude[.]” (Reply Br. at 4.) However, the placement in the
DOC was not merely because of D.P.’s actions at YES Home. The juvenile
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court did find D.P. had “not progressed at the YES Home and ha[d] shown a
continued disrespect for authority[,]” (App. Vol. III at 138), but it also found
D.P. had “at least four (4) prior modifications of his Probation[,]” (id.), based in
part on his leaving Indiana and going on a five state road trip paid for with
fraudulent credit cards D.P. opened using his father’s date of birth. 7 The
juvenile court told D.P. at the hearing in August that he was getting a thirty day
trial at YES Home but that “if you get lippy, you leave[.]” (Tr. at 12.) The
juvenile court told D.P. that if it received “even a wafting smell that you’re not
doing exactly what you’re told, then you’re going to go to Dearborn County
[Juvenile Detention Center] and then we’ll just let you sit there for thirty (30)
days and then bring you back.” (Id. at 13.)
[17] Although D.P. may not have broken any rules at YES Home, Amy Phillips, the
Director, stated he was not making any progress there. D.P. told the staff at
YES Home he would rather be at the DOC than with them. He was unable “to
identify any of his behaviors that have placed him at the YES Home.” (Id. at
21.) He showed “very little gratitude and very much an attitude . . . like he’s
doing us a favor being at the YES Home.” (Id.) This sounds like precisely the
behavior the juvenile court warned D.P. would get him sent to the DOC. D.P.
was not told he would need to violate any rules of YES Home to be removed
from there—he was told removal would occur “if you get lippy[.]” (Id. at 12.)
7
D.P. and his father share the same first and last names.
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Like all the other chances D.P. was given, he chose to squander this one.
Accordingly, we affirm the juvenile court’s placement of D.P. in the DOC. See
D.E. v. State, 962 N.E.2d 94, 97 (Ind. Ct. App. 2011) (no abuse of discretion in
placement of juvenile at DOC where less restrictive rehabilitation efforts had
been unsuccessful).
[18] Affirmed.
Vaidik, C.J., and Altice, J., concur.
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