K.L.W. v. State of Indiana

Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
MARK F. JAMES GREGORY F. ZOELLER
Anderson, Agostino & Keller P.C. Attorney General of Indiana
South Bend, Indiana
MICHAEL GENE WORDEN
Deputy Attorney General
Indianapolis, Indiana
May 24 2013, 9:18 am
IN THE
COURT OF APPEALS OF INDIANA
K.L.W., )
)
Appellant-Respondent, )
)
vs. ) No. 71A05-1211-JV-609
)
STATE OF INDIANA, )
)
Appellee-Petitioner. )
APPEAL FROM THE ST. JOSEPH PROBATE COURT
The Honorable Peter F. Nemeth, Judge
Cause No. 71J01-1207-JD-316
May 24, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
CRONE, Judge
Case Summary
K.L.W. admitted to committing theft, a class D felony if committed by an adult, by
stealing tequila from a store in St. Joseph County. The trial court ordered him placed in a
youth facility in Vincennes. K.L.W. contends that his placement constitutes an abuse of
discretion. We affirm.
Facts and Procedural History
The relevant facts are undisputed.1 K.L.W. was born March 23, 1996. On March 7,
2012, he stole tequila from a store in St. Joseph County. On July 3, 2012, the State filed a
delinquency petition alleging that K.L.W. committed theft, a class D felony if committed by
an adult. At a hearing on July 25, 2012, K.L.W. admitted the allegation. The trial court
accepted K.L.W.’s admission and found him to be delinquent. The court also ordered the
probation officer to prepare a predispositional report and set a dispositional hearing.
At the dispositional hearing on October 30, 2012, the probation officer said that
K.L.W. had “spent 96 days in secure custody with ten incident reports at the time of today’s
hearing.” Tr. at 3. She also said,
[K.L.W.] admitted his involvement in the offense and reported remembering
very little about his actions as he was black-out drunk and high when it was
committed. He acknowledged a significant history with illegal substance use,
including multiple prescription pills, marijuana and cocaine, alcohol and
admitted that he’s used various substances with his father. [K.L.W.]
overdosed last summer that resulted in a hospitalization and admitted to a
history of self-mutilating behaviors causing great concern for his safety if he
were to remain within the community.
1
Indiana Appellate Rule 46(A) provides that an appellant’s brief “shall contain” a statement of facts,
which “shall describe the facts relevant to the issues presented for review but need not repeat what is in the
statement of the case.” K.L.W.’s brief does not contain a statement of facts, even though the issue presented is
inherently fact-sensitive. We strongly encourage counsel to comply with this rule in future appeals.
2
[K.L.W.] began attending the eleventh grade at Mishawaka High
School last year where [he] has 19 credits and [a] history of behavior
problems. He received one in-school and two out of school suspensions for
refusing to take out a lip piercing twice and getting caught buying drugs on
school property. [K.L.W.] was not allowed to return to the regular days
program at the high school, but allowed to participate in Mishawaka High
School’s Learning Center Online Program 8:00 a.m. until 11:15 a.m. He
admitted he often appeared late and drunk to class and never stayed the full
day when in the program.
Again, diagnostic evaluation was completed by Dr. Sibilla and Dr.
Sibilla noted that it would appear evident that [K.L.W.] has sought to manage
the distress by way of running away and living with friends as well as
becoming dependent on alcohol and [illicit] drugs. His overdose last year was
nearly fatal and as such, serves as a call to offer him the maximum level of
chemical dependency treatment available for adolescents. After the probation
department staffed this case a second time, we are recommending that
[K.L.W.] be placed at the Southwest Indiana Regional Youth Village. We
believe he is amenable to treatment and can benefit from the intensive
substance abuse treatment program that Southwest can offer him. It is
believed that if he does not address his extensive illegal substance use, his
angry and defiant attitude and anti-social behaviors, [K.L.W.] will continue to
abuse substances, commit delinquent acts placing himself in very dangerous
situations.
Tr. at 3-5. In response, K.L.W.’s counsel noted that the theft was K.L.W.’s first offense and
asked that he be placed with his grandparents because “[n]obody is going to be able to go
down [to Vincennes] and visit him” and “[n]obody is going to be there to participate in the
treatment.” Id. at 6.
Following the hearing, the trial court issued an order that reads in pertinent part as
follows:
The child has not complied with the compulsory school attendance law and is
in need of an education.
….
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The Probation Department has made reasonable efforts to prevent removal:
[K.L.W.’s mother] discussed consequences within the home she has attempted
to provide for [K.L.W.] to address his delinquent behavior and illegal
substance use. She reportedly attempted to seek outpatient therapeutic
treatment for [K.L.W.] but he refused to attend. In addition, Mishawaka High
School provided appropriate consequences to address [K.L.W.’s] behavioral
problems in and out of school suspensions as well as a change in the
educational setting.
And it is the child’s best interest to remove the child from the home, and that it
would be contrary to the welfare of the child to remain in the child’s home.
This Dispositional Order is consistent with the safety and the best interest of
the child and is the least restrictive and most appropriate setting available close
to the parents’ home, least interferes with the family’s autonomy, is least
disruptive of family life, imposes the least restraint on the freedom of the child
and the child’s parent, guardian, or custodian; and provides a reasonable
opportunity for participation by the child’s parent, guardian, or custodian.
The Court further finds its Disposition is the least restrictive alternative to
insure the child’s welfare and rehabilitation and the safety and welfare of the
community.
….
The Probation Department has recommended, and the Court concludes, that
said child is an appropriate candidate for placement in a private child caring
facility, i.e. Southwest Regional Youth Village in Vincennes, IN. The juvenile
is to participate and successfully complete placement and follow all rules and
regulations.
Appellant’s App. at 10-11. This appeal ensued.
Discussion and Decision
K.L.W. challenges his placement in the Vincennes youth facility. “The choice of the
specific disposition of a juvenile adjudicated a delinquent child is a matter within the sound
discretion of the [trial] court and will be reversed only if there has been an abuse of that
discretion.” K.A. v. State, 938 N.E.2d 1272, 1274 (Ind. Ct. App. 2010), trans. denied (2011).
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“An abuse of discretion occurs when the [trial] 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 that can be drawn therefrom.” Id.
“Although the [trial] court is given wide latitude and great flexibility in determining
the disposition of a delinquent child, its discretion is circumscribed by statute.” D.A. v. State,
967 N.E.2d 59, 65 (Ind. Ct. App. 2012). The relevant statute 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:
(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.
Ind. Code § 31-37-18-6.
K.L.W. contends that the trial court’s disposition is an abuse of discretion because he
has no prior delinquency adjudications, was never previously offered probation services, and
was never adjudicated a truant. He argues that the disposition “is entirely contrary to the
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provisions of I.C. 31-37-18-6 and was designed to punish [him] rather than offer
rehabilitation.” Appellant’s Br. at 4.
We disagree. K.L.W. ignores his admitted history of serious polysubstance abuse,
including using various substances with his own father. He was hospitalized after a near-
fatal overdose and has a history of self-mutilation. K.L.W. also has a history of behavior
problems in school and often showed up late and drunk to class. His mother attempted to
seek outpatient therapy for him, but he refused to attend. K.L.W. would run away from home
and live with friends. And prior to the delinquency hearing, he was in custody for ninety-six
days and had ten incident reports.
K.L.W. cites no authority for the proposition that a juvenile must have a history of
adjudicated delinquent activity before he may be placed in a facility away from his family
and community. K.L.W. is negatively influenced by his father and disobeys his mother, and
his antisocial behavior has adversely affected the safety of his community. The Vincennes
facility was specifically recommended by the probation department because K.L.W. could
benefit from the intensive substance abuse treatment program offered there; such treatment
clearly would be in his best interest. K.L.W. claims that “the least restrictive and most
appropriate setting close to his parents’ home was not utilized,” Appellant’s Br. at 3, but he
offers no suitable alternative. Based on the foregoing, we cannot conclude that K.L.W.’s
disposition is an abuse of discretion. Therefore, we affirm.
Affirmed.
ROBB, C.J., and FRIEDLANDER, J., concur.
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