B.W. v. State of Indiana (mem. dec.)

MEMORANDUM DECISION FILED
Pursuant to Ind. Appellate Rule 65(D), this Oct 12 2017, 11:18 am
Memorandum Decision shall not be regarded as CLERK
precedent or cited before any court except for the Indiana Supreme Court
Court of Appeals
purpose of establishing the defense of res judicata, and Tax Court
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Jeffery A. Earl Curtis T. Hill, Jr.
Danville, Indiana Attorney General of Indiana
Michael Gene Worden
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
B.W., October 12, 2017
Appellant-Respondent, Court of Appeals Case No.
32A01-1705-JV-924
v. Appeal from the Hendricks Superior
Court.
The Honorable Karen M. Love,
State of Indiana, Judge.
Appellee-Petitioner. Trial Court Cause No.
32D03-1606-JD-163
Friedlander, Senior Judge
[1] B.W. appeals the juvenile court’s dispositional order. We affirm.
[2] B.W. presents one issue for our review, which we restate as whether the
juvenile court abused its discretion by awarding wardship of B.W. to the
Department of Correction (DOC).
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[3] On June 20, 2016, the State filed a delinquency petition alleging that B.W. had
committed the offenses of conspiracy to commit robbery, a Level 5 felony if
1
committed by an adult, and possession of paraphernalia, a Class A
2
misdemeanor if committed by an adult. At the fact-finding hearing, B.W.
admitted to the allegations, and the juvenile court entered a true finding. The
court awarded wardship of B.W. to the DOC but suspended that commitment
and placed B.W. on supervised probation for twenty-four months. Specific
conditions of B.W.’s probation included a 6:30 p.m. curfew, substance abuse
evaluation and treatment, abstinence from intoxicating or illegal substances,
school attendance and appropriate behavior, no contact with his co-conspirators
Z.M. or M.T., at least part-time employment, a letter of apology to the victim,
truthful testimony against Z.M. and M.T., and participation in home-based
counseling.
[4] On October 27, 2016, the State filed a petition to modify B.W.’s supervised
probation due to allegations of a positive drug screen for marijuana and
suspension from school due to unexcused absences. This petition was soon
followed by the filing of a supplemental petition to modify based upon B.W.’s
pending expulsion from school. At a hearing on these matters, B.W. admitted
1
Ind. Code §§ 35-42-5-1 (2014), 35-41-5-2 (2014).
2
Ind. Code § 35-48-4-8.3 (2015).
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to violating his probation, and the juvenile court modified the terms of his
probation to add participation in mentoring services and family therapy.
[5] The State filed another petition to modify B.W.’s probation on February 16,
2017, alleging that B.W. had again violated the terms of his probation,
specifically the 6:30 p.m. curfew and the no contact with Z.M. The juvenile
court held a hearing on the State’s petition, after which it entered a true finding
and imposed the previously-suspended commitment to the DOC. B.W. now
appeals.
[6] As B.W. concedes, the evidence in this case is undisputed that he violated the
curfew term of his probation. See Appellant’s Br. p. 9. He claims, however,
that his commitment to the DOC is improper because it is not the least
restrictive alternative available.
[7] The choice of the specific disposition of a juvenile adjudicated to be delinquent
is a matter within the sound discretion of the juvenile court. J.S. v. State, 881
N.E.2d 26 (Ind. Ct. App. 2008). 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. We will reverse a juvenile
disposition only for an abuse of discretion, which occurs when the juvenile
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 drawn therefrom. Id. Accordingly, the juvenile court is accorded
wide latitude and great flexibility in its dealings with juveniles. Id.
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[8] Indiana Code section 31-37-18-6 (1997) sets forth the following factors a
juvenile court must consider when entering a dispositional decree:
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.
Although this section requires the juvenile court to select the least restrictive
placement, that requirement is limited by the safety of the community and the
best interest of the child. D.B. v. State, 842 N.E.2d 399 (Ind. Ct. App. 2006).
Thus, the statute recognizes that, in certain situations, the best interest of the
child is better served by a more restrictive placement. Id.
[9] B.W.’s father testified at the fact-finding hearing that on February 4, 2017, the
police came to his home and woke him at approximately 1:00 a.m. At that
time, they informed him that they had heard B.W. was at a party and that Z.M.
was also at the party. B.W.’s father did not know if B.W. was at home because
he had gone to bed much earlier in the evening when B.W. and his brothers
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were all at home. He further testified that he and B.W. argue a lot and that
B.W. knows what he is supposed to do for his probation and “there’s not much
[B.W.’s father] can do.” Tr. p. 26.
[10] While acknowledging B.W.’s effort to obtain employment, his care coordinator
testified that each of B.W.’s weekly drug screens had been positive for
marijuana and that his substance abuse therapist closed his file as unsuccessful
after he failed to attend three appointments. She further testified that B.W. had
an appointment for a court-ordered psychological evaluation but had canceled
the appointment. In summarizing her observations of B.W., she testified, “The
only thing he really cares about right now is working. He doesn’t seem too
motivated to go to school, to participate in services.” Id. at 41.
[11] In addition, B.W.’s probation officer testified that B.W.’s cooperation has been
“hit and miss.” Id. at 43. She testified that B.W. sleeps through appointments
and that he does not cooperate with his providers, other than his mentor. She
also mentioned his positive drug screens, his withdrawal from school, and his
withdrawal from or being “kicked out” of his last GED program. Id. Finally,
she testified that B.W.’s probation “has not been successful up to this point.”
Id.
[12] In his testimony, B.W. admitted that he was out past his curfew on February 4,
2017, at the home of his friend, Cory. He testified that he left Cory’s and went
over to the party because he was told his brother was there. He claims he
knocked on the door of the loud party, asked for his brother, told his brother to
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go home, and went back to Cory’s — all without attending the party or seeing
Z.M. B.W. further admitted that he had failed drug tests, slept through
scheduled appointments, failed to have a psychological evaluation, and not
begun GED classes or treatment for his substance abuse issues. Moreover, he
continued to be equivocal about his marijuana use even as he was testifying at
the fact-finding hearing. When told he was going to be drug tested after the
hearing and asked if it would be a “clean” test, B.W.’s response was that it
“should be.” Id. at 54. The State further asked if he had smoked marijuana
within the last thirty days, and B.W. responded, “I’d say no. I really — I
haven’t smoked and I can pass a – I can pass a drug screen. I’m pretty sure of
it.” Id. at 55.
[13] In stating its decision, the juvenile court observed that although B.W.’s
employment is a positive thing, his education is far more important. The court
declared it was “very unfortunate” that B.W. canceled his psychological
evaluation appointment, dropped out of school, and continued to use
marijuana. Id. at 47. The court further explained that by being sent to the
DOC, B.W. would be able to obtain his GED, receive a psychological
evaluation, and receive needed substance abuse treatment. Accordingly, in its
dispositional order, the court strongly recommended to the DOC that B.W. be
placed in Camp Summit “so that he can get his GED and get some training.”
Id. at 61. In its order, the court additionally determined that B.W.’s father
cannot or will not provide B.W. with the supervision he needs.
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[14] By its terms, Indiana Code section 31-37-18-6 recognizes that while less
restrictive placement options may be available, in certain situations a less
restrictive placement is not consistent with the best interest of the child. This is
such a situation. Within the first seven months of his twenty-four-month
probation term, B.W. had accumulated three petitions to modify. Upon true
findings for the first two petitions, the juvenile court employed less restrictive
dispositions and merely continued B.W.’s probation with the addition of
mentoring services and family therapy. Yet none of these less restrictive
dispositions were successful at rehabilitating B.W. His continuing actions
during his short term of probation proved that he is unable or unwilling to abide
by less restrictive dispositions. As the court remarked, a commitment to the
DOC will significantly increase the chances that B.W. secures his GED and
training for future employment as well as treatment to address his substance
abuse issues. Thus, the court’s decision to commit B.W. to the DOC fulfills the
juvenile system’s dual purpose of rehabilitation and behavioral re-direction. See
S.C. v. State, 779 N.E.2d 937 (Ind. Ct. App. 2002) (stating that nature of juvenile
process is rehabilitation and aid to juvenile to direct his behavior so he will not
later become a criminal), trans. denied.
[15] For the foregoing reasons, we conclude the juvenile court did not abuse its
discretion in committing B.W. to the DOC.
[16] Judgment affirmed.
May, J., and Crone, J., concur.
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