MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be regarded as precedent or cited before any Oct 17 2019, 10:53 am
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 Kimberly A. Jackson Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana J.T. Whitehead Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
A.K., October 17, 2019 Appellant, Court of Appeals Case No. 19A-JV-1110 v. Appeal from the Miami Superior Court State of Indiana, The Honorable Daniel C. Banina, Appellee. Judge Trial Court Cause No. 52D02-1706-JD-15
Brown, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-JV-1110 | October 17, 2019 Page 1 of 14 [1] A.K. appeals the juvenile court’s dispositional order. He raises two issues
which we revise and restate as whether the court denied him due process or
abused its discretion in awarding wardship of him to the Indiana Department of
Correction (the “DOC”). We affirm.
Facts and Procedural History
[2] In June 2017, the State filed a Petition Alleging Delinquency which alleged that
A.K., who was born in August 2002, committed two acts of child molesting
which would constitute level 3 felonies if committed by an adult. On August
23, 2017, the court held a hearing at which A.K. admitted to the allegations
contained in one of the counts and the court dismissed the other count. A.K.
admitted that he knowingly submitted to sexual conduct with B.C.N., a person
he knew was eleven years old, and the conduct was video recorded using a
school laptop. The parties stipulated to the admission of the probable cause
affidavit for purposes of supplementing the factual basis. According to the
affidavit, school staff discovered video recordings on B.C.N.’s school-issued
laptop, the recordings depicted B.C.N. and his fourteen-year-old half-brother
A.K. exposing themselves, and in one of the recordings, B.C.N. performed oral
sex on A.K. The court found A.K. to be delinquent and ordered that he be
placed at White’s Residential and Family Services in its sexually maladaptive
youth program.
[3] The juvenile court held review hearings on November 22, 2017, and February
21, 2018, and ordered that A.K. remain at White’s Residential. On May 16,
2018, the court held a review hearing at which A.K’s probation officer testified Court of Appeals of Indiana | Memorandum Decision 19A-JV-1110 | October 17, 2019 Page 2 of 14 that A.K. had not progressed very quickly in treatment, his behavior was not
easy to manage, he had “been mouthy with staff,” he snuck a turtle and a frog
into his room, he was “defiant in general,” and that, despite multiple warnings
to stop “horse playing with other residents,” he climbed on someone, fell, and
broke his arm, resulting in surgery. Transcript Volume II at 23. The court did
not change A.K.’s placement and told him that “the longer you decide to not go
with the program, . . . the longer you’re going to be there or someplace else.”
Id. at 26. On August 15, 2018, the court held a review hearing at which the
prosecutor indicated that he had been notified that White’s Residential was
considering removing A.K. from its program and that he anticipated a violation
would be filed.
[4] On August 17, 2018, the State filed a petition for modification of dispositional
decree alleging that A.K. violated the conditions of his probation by failing to
obey all terms and conditions of programming at White’s Residential resulting
in unsuccessful termination from the program. The modification report stated
that A.K. had been placed at White’s Residential for almost one year, he was
placed in the sexually maladaptive youth program, he was refusing to complete
treatment, and that his behaviors had escalated to the point he was no longer
manageable at White’s Residential. On August 22, 2018, the court held a
hearing at which A.K. admitted that he failed to comply with the terms and
conditions of the program. He admitted there were five major offenses between
July 3rd and July 23rd, including that he was “out of bounds” twice, hit a peer
in the groin, sharpened a crochet hook into a weapon, and brought unapproved
Court of Appeals of Indiana | Memorandum Decision 19A-JV-1110 | October 17, 2019 Page 3 of 14 items back from campus visitation. Id. at 36. The court found that A.K.
violated his probation by being unsuccessfully discharged from White’s
Residential and ordered that he be temporarily placed at the Robert J. Kinsey
Youth Center. On August 29, 2018, the court held a placement hearing at
which it was informed that A.K. had been accepted at Oaklawn, the Children’s
Campus. On September 13, 2018, the court issued an agreed order on
placement that A.K. be released from Kinsey to Oaklawn for the purpose of
residential placement.
[5] On December 17, 2018, A.K.’s probation officer filed a placement review and
attached October and November 2018 monthly treatment reports. A report
dated November 1, 2018, states that A.K. made minimal progress and that
there were thirteen incidents to report in the period, including that on October
14th and 25th, he was physically aggressive toward staff, on October 15th he
was not following unit structure and used a paper towel with paint on it to
cover up the safe room window and attempted to push past staff which resulted
in a restraint, on October 25th he attempted to engage in property destruction
and tied clothing around his neck resulting in a restraint and seclusion, on
October 7th and 20th he engaged in self-harm behaviors, on October 16th he
attempted to elope, on October 9th and 11th he punched a wall until his
knuckles bled and was treated by the nurse, and on October 27th he had to
review the rules of masturbation with staff after telling them he went over
shower time because he was masturbating in the shower. A report dated
December 1, 2018, states that A.K. made minimal progress and that there were
Court of Appeals of Indiana | Memorandum Decision 19A-JV-1110 | October 17, 2019 Page 4 of 14 ten incidents to report in the period, including that on November 17th he
attempted to engage in property destruction but was stopped by staff, on
November 8th, 13th, and 30th he engaged in physical aggression toward staff,
on November 15th, 19th, and 26th he engaged in property destruction
behaviors, on November 30th he tied a shirt around his neck, on November 6th
he attempted to be physically aggressive towards a peer, and on November 27th
he refused to go to his room when directed, during the incident saw a female
staff member’s cleavage, and later told a peer about the incident and engaged in
inappropriate sexual talk.
[6] On December 19, 2018, the court held a placement review hearing at which
A.K.’s probation officer testified that, until the previous two or three weeks,
A.K. “was doing pretty horribly,” that she “was receiving multiple incident
reports daily regarding his behavior, [] destroying property, being out of
bounds, [] some inappropriate sexual activities, [and] blatant back talk,” and
“he just seems to have turned it around here recently.” Id. at 50. She indicated
that, in the prior two weeks, she received one or two incident reports. She
indicated that, in order for him to make progress towards returning home, he
had to follow the rules, that he was in “group B” which was very structured for
those who had been causing a lot of trouble in the group environment, that
“he’s got to get some of those restrictions off,” and “he is working towards
doing that by participating.” Id. at 50-51. She indicated that A.K. had a
weighted blanket for two weeks, that it helped him with his anxiety, there are
times he wraps himself up in it so that just his face is out, and that he talked
Court of Appeals of Indiana | Memorandum Decision 19A-JV-1110 | October 17, 2019 Page 5 of 14 about how it helped him to think before he acts. The court ordered that A.K.
remain at Oaklawn.
[7] On March 15, 2019, the State filed a Verified Petition for Modification of
Dispositional Decree alleging that A.K. had failed to obey all terms and
conditions of programming at Oaklawn resulting in unsuccessful termination
from the program. On March 20, 2019, the court held a modification hearing.
The court asked A.K.’s counsel if there was an objection to A.K. being placed
in secure detention pending further hearing, and counsel stated that ultimately
they knew that was what was going to happen but that it was important for the
representative from Oaklawn to testify as to what went wrong. A.K.’s care
facilitator at Oaklawn testified that A.K. was unsuccessfully terminated from its
program and that they had done a lot of creative thinking with him and placed
extra support to help him be successful. She testified that A.K.’s therapist talked
to him about the programming and they determined that he made poor choices
because he wanted to continue receiving extra attention.
[8] The care facilitator testified that the first four months of A.K.’s treatment
related to teaching him coping skills so that he could manage his anxiety and
they then started to work on his trauma which he was not interested in doing.
She testified that he completed perhaps a month of his treatment at most and
showed very little if any motivation. When asked if she saw unsafe behavior
that morning just outside the courtroom, she replied affirmatively and stated
that, when they were telling him “here’s what’s going on” and “you’ve made
some poor choices,” his first response was to punch the limestone wall. Id. at
Court of Appeals of Indiana | Memorandum Decision 19A-JV-1110 | October 17, 2019 Page 6 of 14 63. She also testified that A.K. engaged in self-harm behaviors, took pieces of
clothing and wrapped them around his throat, and engaged in some suicidal
ideation. She indicated he is currently passing classes but is struggling
behaviorally in school, has been suspended multiple times, and there was an
incident in February where someone asked him to do something and he refused
and stayed on the classroom floor for ten or fifteen minutes. She stated that
A.K. was not advancing or taking advantage of the services at Oaklawn.
[9] A.K.’s probation officer recommended that A.K. be transferred to Kinsey and
that an additional hearing be set. His counsel asked the probation officer about
A.K.’s grandmother as an alternative family placement, and the officer
indicated that she could speak with the grandmother and noted that she had
concerns with A.K. being placed in a less restrictive setting. The court placed
A.K. in secure detention at Kinsey pending the dispositional hearing.
[10] On April 8, 2019, A.K.’s probation officer filed a predispositional report. The
report states that A.K. and his parents would like him to be released to his
grandmother’s custody on home detention. It states that A.K. had been in
residential placement since 2017, lacks social skills, struggles with peer relations
and is often defiant with adults, has struggled in the school setting since the first
grade, was expelled for the first time in the fifth grade, and has continued to
struggle in the school setting in residential placement. The report states that
A.K. has been diagnosed with post-traumatic stress disorder, conduct disorder,
adolescent onset type, and attention deficit hyperactivity disorder, that he has a
history of sexually maladaptive behaviors, he is also a victim of sexual abuse,
Court of Appeals of Indiana | Memorandum Decision 19A-JV-1110 | October 17, 2019 Page 7 of 14 his level of sexual recidivism is high and he has a high level of treatment needs,
and he is prescribed a number of medications. It states that he participated in a
psychosexual evaluation prior to placement at White’s Residential, was
unsuccessfully discharged from there and from Oaklawn, and he received
treatment for sexually maladaptive youth at both placements. It states that
A.K. was inpatient at Michiana Behavioral Healthcare in the fifth grade due to
being out of control at home and participating in gang activity at school and
remained at the facility for one week. The report states: “It should be noted this
offense occurred while the first matter was pending. This resulted in the
juvenile being placed in secure detention.” Appellant’s Appendix Volume III at
64. It states that he received thirty-five incident reports in total while at
Oaklawn.
[11] The probation officer wrote that, although she appreciates the family’s desire to
have A.K. return home, she continued to be concerned with the safety of other
children, that A.K.’s grandmother is quite ill and will be away from the home to
undergo treatment, that the grandmother has a close relationship with the other
children and allowing A.K. to live in her home will result in the other children
being punished by not being allowed contact with their grandmother, and that
driving through the neighborhood she counted nine young children outside
playing unsupervised. With respect to placement at the DOC, the report states
that A.K. continues to be a high risk to reoffend and that, based on his lack of
improvement, failure to complete treatment, and extreme defiance, it is the
probation officer’s opinion that placement at the juvenile division of the DOC is
Court of Appeals of Indiana | Memorandum Decision 19A-JV-1110 | October 17, 2019 Page 8 of 14 the only viable placement. The report finds that A.K. is a danger to himself and
others.
[12] On April 10, 2019, the court held a dispositional hearing. A.K.’s probation
officer testified that she received an email from Kinsey that morning containing
a detention center review memo which indicated that, during the prior two
days, A.K. had been dropped four levels due to behaviors in school, he was
caught visiting unauthorized websites, was not doing his work, and was
drawing inappropriate pictures. She recommended that A.K. complete the sex
offender program through the DOC, and that until he works through that
program he will continue to be a high risk to reoffend. She indicated the family
indicated it did not want A.K. as far away as Tennessee at a potential facility
and that she recommended that he complete the sexually maladaptive youth
program at the Indiana Boy’s School.
[13] The court stated its belief that A.K. continued to be a danger to the community,
that he had been in two programs with minimal to no improvement, that he
continues to be a high risk, and that “he’s basically ran the gamut, gauntlet”
and “it’s time to place at Indiana Boy’s School” with the recommendation that
he complete the sexually maladaptive youth program. Transcript Volume II at
92.
[14] The court issued a dispositional order awarding wardship of A.K. to the DOC
for housing in a correctional facility for children. The order states in part:
Court of Appeals of Indiana | Memorandum Decision 19A-JV-1110 | October 17, 2019 Page 9 of 14 The Court finds this disposition 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. Further, this disposition 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(s); and provides a reasonable opportunity for participation by the child’s parent(s). The Court finds the child is in need of care and rehabilitation which can best be provided by his commitment to the [DOC]. Prior attempts at rehabilitation through less restrictive means, including residential placement, home based counseling, and probation supervision have been unsuccessful.
Appellant’s Appendix Volume II at 11. The court recommended that A.K. be
placed in a facility where he can continue with his education, receive mental
health counseling, receive sexually maladaptive youth treatment, and
participate in a behavior modification program.
Discussion
[15] A.K. argues that the State failed to produce any evidence of the terms of his
probation and that the juvenile court violated his right to due process in
modifying the dispositional order. He further argues the court abused its
discretion in committing him to the DOC, the State did not investigate or
improperly rejected less restrictive placements, and his misconduct and
circumstances did not justify a modification resulting in his commitment to the
DOC. The State responds that it sufficiently proved that A.K. understood the
terms and conditions that he was supposed to follow and that the factfinder
could infer that he was made aware of the rules at Oaklawn. It argues that
A.K. was given the opportunity to try placements at facilities other than the
Court of Appeals of Indiana | Memorandum Decision 19A-JV-1110 | October 17, 2019 Page 10 of 14 DOC, that the facilities dismissed him from their programs due to his continued
behavioral problems and failure to make significant progress in treatment, and
that, by the time the court placed him with the DOC, it had no other
alternative.
[16] The standard for determining what due process requires in a particular juvenile
proceeding is “fundamental fairness.” D.A. v. State, 967 N.E.2d 59, 64-65 (Ind.
Ct. App. 2012). A.K.’s care facilitator testified at the March 20, 2019
modification hearing regarding A.K.’s behavior which included destruction of
property and attempts to hurt others and himself and ultimate discharge from
Oaklawn, and A.K.’s counsel questioned his probation officer about possible
placement with his grandmother. Later, on April 8, 2019, A.K.’s probation
officer filed a predispositional report reflecting the officer’s thorough
consideration of placement with A.K.’s grandmother and the officer’s opinion
that placement with the DOC is the only viable placement. At the April 10,
2019 hearing, A.K. and his parents were present, and his counsel cross-
examined his care facilitator and probation officer and made arguments on his
behalf. A.K. has not shown that he was denied fundamental fairness or due
process. See D.A., 967 N.E.2d at 65 (observing D.A.’s probation officer
explained the reasons for the department’s recommendation, D.A. and his
mother were present, his counsel presented argument, and the proceeding did
not violate fundamental fairness); S.L.B. v. State, 434 N.E.2d 155, 157 (Ind. Ct.
App. 1982) (noting S.L.B. was well aware of the purpose for which she was
Court of Appeals of Indiana | Memorandum Decision 19A-JV-1110 | October 17, 2019 Page 11 of 14 called before the court, she was present for the hearing, her position was
expressed through her counsel, and fundamental fairness was served).
[17] The juvenile court is given wide latitude and great flexibility in determining the
disposition of a delinquent child. D.A., 967 N.E.2d at 65. However, its
discretion is circumscribed by Ind. Code § 31-37-18-6, which provides that, “[i]f
consistent with the safety of the community and the best interest of the child,”
the juvenile court shall enter a dispositional decree that is “in the least
restrictive (most family like) and most appropriate setting available” and “close
to the parents’ home, consistent with the best interest and special needs of the
child”; least interferes with family 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. Under the statute, placement in
the least restrictive and most appropriate setting available applies only “[i]f
consistent with the safety of the community and the best interest of the child.”
J.D. v. State, 859 N.E.2d 341, 346 (Ind. 2007) (citing Ind. Code § 31-37-18-6).
We will not overturn the juvenile court’s disposition order absent an abuse of
discretion, which occurs if its actions are clearly against the logic and effect of
the facts and circumstances before it or the reasonable inferences that may be
drawn therefrom. R.H. v. State, 937 N.E.2d 386, 388 (Ind. Ct. App. 2010).
[18] The juvenile court heard testimony from A.K.’s probation officer and care
facilitator at Oaklawn and was able to review the filed incident reports and
dispositional report. It heard evidence regarding his behavior, treatment,
Court of Appeals of Indiana | Memorandum Decision 19A-JV-1110 | October 17, 2019 Page 12 of 14 placement history, and the reasons for his dismissal from the programs, and it
considered the parties’ arguments. In its order awarding wardship of A.K. to
the DOC for housing in a facility for children, the court indicated that it had
considered among other factors the interests of A.K. and the public, alternatives
for the care, treatment, and rehabilitation for A.K., the necessity, nature, and
extent of the participation by a parent, guardian, or custodian in a program of
care, treatment, or rehabilitation for the juvenile, and services if any that should
be ordered for the parents or guardian. The court reviewed A.K.’s history of
placements and found that less restrictive options are not appropriate.
[19] Based upon the record, and in light of A.K.’s delinquent behavior and failure to
adequately respond to prior attempts at rehabilitation, we conclude that the
placement ordered by the juvenile court is consistent with his best interest and
the safety of the community and find no abuse of discretion. See D.E. v. State,
962 N.E.2d 94, 97 (Ind. Ct. App. 2011) (holding the juvenile court did not
abuse its discretion in placing D.E. in a DOC facility even though there was a
less restrictive option available where earlier attempts to rehabilitate his
behavior were unsuccessful); K.A. v. State, 775 N.E.2d 382, 387 (Ind. Ct. App.
2002) (holding the juvenile court did not abuse its discretion in placing K.A. at
the DOC where previous less restrictive placements were unsuccessful and
continued placement at a residential treatment center was apparently no longer
an available option), trans. denied.
[20] For the foregoing reasons, we affirm the juvenile court’s order.
Court of Appeals of Indiana | Memorandum Decision 19A-JV-1110 | October 17, 2019 Page 13 of 14 [21] Affirmed.
Altice, J., and Tavitas, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-JV-1110 | October 17, 2019 Page 14 of 14