In The Matter of J.H., A Child Alleged To Be Delinquent v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
Nov 29 2016, 8:03 am
regarded as precedent or cited before any
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Jennifer L. Koethe Gregory F. Zoeller
LaPorte, Indiana Attorney General of Indiana
Caryn N. Szyper
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In The Matter of J.H., November 29, 2016
A Child Alleged To Be Court of Appeals Case No.
46A03-1604-JV-945
Delinquent,
Appeal from the LaPorte Circuit
Appellant-Defendant, Court
v. The Honorable Thomas Alevizos,
Judge
State of Indiana, The Honorable W. Jonathan
Forker, Magistrate
Appellee-Plaintiff.
Trial Court Cause No.
46C01-1512-JD-213
Bailey, Judge.
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Case Summary
[1] J.H. was adjudicated a delinquent, with the trial court entering true findings for
(1) Leaving Home Without Permission1 and (2) Theft.2 On appeal, J.H.
challenges his Leaving Home Without Permission adjudication as well as
aspects of the juvenile court’s disposition. We affirm.
Issues
[2] J.H. raises two restated issues:
I. Whether the evidence is sufficient to support his true
finding of Leaving Home Without Permission; and
II. Whether the juvenile court abused its discretion when it
placed J.H. in a residential facility.
Facts and Procedural History
[3] On November 23, 2015, sixteen-year-old J.H. was with his mother (“Mother”)
at a Dollar Tree store in Michigan City, Indiana. Without Mother’s
permission, J.H. left Dollar Tree and went to the nearby Family Dollar store,
where Kimberly Walker (“Walker”) was working. Walker saw J.H. pick up
underwear and walk behind the end of an aisle. When Walker heard a rattle of
1
Ind. Code § 31-37-2-2.
2
I.C. § 35-43-4-2.
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packaging, she approached J.H. and saw him put a scarf and underwear in his
jacket. J.H. then looked at Walker, said “I was not stealing,” and began to pull
items from his pockets as he exited. Just outside the store, J.H. dropped gloves
with tags on them. He ran toward Dollar Tree and got in line with Mother.
[4] Walker went to Dollar Tree to alert staff, who told her to call the police. When
the police arrived, J.H. had again left without Mother’s permission. Mother
reported J.H. as a runaway and requested that police bring J.H. to Dollar Tree.
[5] On December 11, 2015, the State alleged J.H. to be a delinquent for (1) Leaving
Home Without Permission and (2) Theft, which would be a Class A
misdemeanor if committed by an adult. The State also included allegations of
Theft and Intimidation for unrelated incidents. Following a fact-finding
hearing on March 28, 2016, the juvenile court entered true findings for the
Leaving Home Without Permission and Theft allegations related to the
November 23 events. There were no true findings for the other allegations.
[6] Following the fact-finding hearing, the juvenile court asked J.H. and the State
when they wanted to hold a dispositional hearing. J.H. and the State indicated
they were ready, and the juvenile court proceeded to disposition. The
probation department recommended that J.H. be placed at a particular
residential facility, basing its recommendation on the services J.H. had
previously received as well as letters from two psychiatrists that recommended
residential placement. The probation officer present at the hearing noted that
the particular facility no longer had a bed immediately available for J.H. but
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one would be available in May 2016, and recommended that J.H. remain on
the secure side of the detention center until then. The State agreed with the
recommendation but the defense objected to residential placement. The
juvenile court followed the probation department’s recommendation in entering
its dispositional decree.
[7] J.H. now appeals.
Discussion and Decision
Sufficiency of the Evidence
[8] In juvenile delinquency adjudication proceedings, the State must prove every
element of the offense beyond a reasonable doubt. A.B. v. State, 885 N.E.2d
1223, 1226 (Ind. 2008). We do not reweigh the evidence or judge the credibility
of witnesses. Al-Saud v. State, 658 N.E.2d 907, 909 (Ind. 1995). Rather, we
consider only the evidence and reasonable inferences most favorable to the
judgment. Id. We affirm if the evidence and those inferences constitute
substantial evidence of probative value to support the judgment. A.B., 885
N.E.2d at 1226.
[9] Indiana law provides that a “child commits a delinquent act if, before becoming
eighteen (18) years of age, the child leaves home or a specific location
previously designated by the child’s parent, guardian, or custodian: (1) without
reasonable cause; and (2) without permission of the parent, guardian, or
custodian, who requests the child’s return.” I.C. § 31-37-2-2.
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[10] J.H. points out that he and Mother never had a specific conversation at Dollar
Tree about him staying at the store. Thus, J.H. seemingly challenges whether
the State proved J.H. left a designated location without permission. Here, at
the fact-finding hearing, Mother testified that J.H. did not have permission to
leave Dollar Tree. As a general rule, J.H. was to stay with her in the store, and
he did not have permission to go where he wanted without telling her. J.H. did
not tell Mother he was leaving. Under these facts, we find J.H.’s challenge to
the location and permission elements unavailing.
[11] More pointedly, however, J.H. suggests the evidence is insufficient because
Mother asked the police to return J.H. to the Dollar Tree but she did not ask
J.H. to return. J.H. relies on T.W. v. State, 864 N.E.2d 361, 365 (Ind. Ct. App.
2007), trans. denied. There, in the context of a case involving a request directed
at a child to return, we used language about making the request to the child.
The statute, however, does not expressly specify to whom a parent must direct
her request. See I.C. § 31-37-2-2 (requiring that the “parent, guardian, or
custodian . . . request the child’s return.”). Nonetheless, when examining the
statute in T.W., we observed as we do now that the “goal of statutory
construction is to determine, give effect to, and implement the intent of the
legislature.” T.W., 864 N.E.2d at 365 (citing Sales v. State, 723 N.E.2d 416, 420
(Ind. 2000)). We presume the legislature “intended the language used in the
statute to be applied logically and not to bring about an unjust or absurd result.”
Id. Here, J.H. invites an illogical reading of the “runaway” statute, in which
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the statute would never apply where a parent could not contact the child after
the child ran away. This could not have been the legislature’s intent.
[12] We find that the evidence is sufficient to sustain J.H.’s adjudication.
Residential Placement
[13] The juvenile court has discretion to choose the specific disposition of a juvenile
adjudicated a delinquent, “subject to the statutory considerations of the welfare
of the child, the community’s safety, and the Indiana Code’s policy of favoring
the least harsh disposition.” C.T.S. v. State, 781 N.E.2d 1193, 1202 (Ind. Ct.
App. 2003). We will not reverse a juvenile disposition unless the juvenile court
abuses its discretion. Id. The juvenile court abuses its discretion if its action is
“clearly erroneous and against the logic and effect of the facts and
circumstances before the court, or the reasonable, probable, and actual
deductions to be drawn therefrom.” D.B. v. State, 842 N.E.2d 399, 404-05 (Ind.
Ct. App. 2006).
[14] Indiana Code Section 31-37-18-6 sets forth a list of factors that the juvenile
court must consider in entering a dispositional decree, and provides as follows:
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
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(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.
[15] We have previously noted that this section requires that the juvenile court select
the least restrictive placement in most situations. D.B., 842 N.E.2d at 405.
“However, the statute contains language which reveals that under certain
circumstances a more restrictive placement might be appropriate.” K.A. v. State,
775 N.E.2d 382, 386-87 (Ind. Ct. App. 2002), trans. denied. Indeed, the statute
requires placement in the least restrictive setting only if such placement is
“consistent with the safety of the community and the best interest of the child.”
I.C. § 31-37-18-6. In other words, “the statute recognizes that in certain
situations the best interest of the child is better served by a more restrictive
placement.” K.A., 775 N.E.2d at 387.
[16] J.H. argues that the juvenile court abused its discretion in ordering his
placement in the particular residential facility because “there was no evidence
presented that another similar or less restrictive program in La Porte County
was not available or that [the probation’s department’s proposed residential
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facility] was the most appropriate facility.” (Appellant’s Br. at 14.) Here, the
predispositional report indicated that J.H. had two previous true findings,
multiple diagnoses, and a history of school suspensions. Mother had been
trying to find residential placement for J.H., but was unable to find a facility
that would accept him. At the hearing, the probation officer observed that J.H.
had previously been provided Level 1 home detention, Level 2 home detention,
supervised probation, administrative probation, GPS monitoring, secure
detention, and non-secure detention. J.H. had also received outpatient and
inpatient care as well as counseling, therapy, psychiatric services, and
medication management. Two psychiatrists wrote letters recommending
residential placement. Moreover, at the hearing, Mr. Bunch (“Bunch”), a
licensed therapist who submitted a report, opined that residential placement
was best for J.H. and noted that J.H. “flourish[es] under [the] structure and
consistency” of a secure facility. (Tr. 90-91).
[17] The statute requires placement in the least restrictive setting only if such
placement is “consistent with the safety of the community and the best interest
of the child.” I.C. § 31-37-18-6. Here, the juvenile court heard that a series of
less-restrictive options had not been effective, and several professionals opined
that placement was in J.H.’s best interests. We cannot say that the trial court
abused its discretion when placing J.H. in the residential facility, or by ordering
that J.H. stay in the detention facility until a bed in the residential facility was
available.
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[18] J.H. further argues that the juvenile court erred because “no testimony was
presented from probation and there was no opportunity for J.H.’s counsel to
cross examine witnesses regarding the pre-dispositional report, probation’s
recommendation and the reports from J.H.’s psychologists.” (Appellant’s Br. at
14). The record reflects, however, that during the dispositional phase of the
hearing—which J.H. elected to immediately begin—the probation department
did offer its recommendation. J.H. did not cross-examine the probation
department’s statements, call witnesses, or challenge the content of the
predispositional report. J.H. did remark that he was not aware of Bunch’s
report. In response, the juvenile court noted that it had asked about proceeding
to disposition because it “didn’t know if [J.H.] wanted time to review things
and come back at another time[,]” and would consider postponing, but J.H. did
not respond. (Tr. at 91.)
[19] We find that, contrary to J.H.’s characterization, it was not that J.H. was
deprived of any opportunity but that J.H. did not take advantage of the
opportunity that was presented to him. Accordingly, J.H. has waived this line
of argument. See Dillard v. State, 827 N.E.2d 570, 577 (Ind. Ct. App. 2005)
(finding waiver in the criminal context where a defendant, “having been
afforded the opportunity to review the [presentence investigation] report[,] . . .
fail[ed] to register an objection to the information contained therein . . . .”),
trans denied.
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Conclusion
[20] The evidence is sufficient to support J.H.’s adjudication of Leaving Home
Without Permission and the trial court did not abuse its discretion in ordering
that J.H. be placed in a residential facility.
[21] Affirmed.
Najam, J., and May, J., concur.
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