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

• Court: Indiana Court of Appeals
• Decided: November 29, 2017
• Docket: 32A04-1708-JV-1916
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Nov 29 2017, 8:58 am this Memorandum Decision shall not be regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Paula M. Sauer Curtis T. Hill, Jr. Danville, Indiana Attorney General of Indiana Laura R. Anderson Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

A.P., November 29, 2017 Appellant-Defendant, Court of Appeals Case No. 32A04-1708-JV-1916 v. Appeal from the Hendricks Superior Court State of Indiana, The Honorable Karen M. Love, Appellee-Plaintiff. Judge Trial Court Cause No. 32D03-1608-JD-228

Brown, Judge.

Court of Appeals of Indiana | Memorandum Decision 32A04-1708-JV-1916 | November 29, 2017 Page 1 of 10 [1] A.P. appeals the trial court’s order to modify supervision and commit her to the

Department of Correction for housing in any correctional facility for children.

A.P. raises one issue which we revise and restate as whether the court abused its

discretion in entering its order. We affirm.

Facts and Procedural History

[2] On or about late August 27, 2016, A.P. met a woman for a fight and during the

fight stabbed her with a knife causing lacerations to the woman’s cheek and arm

requiring her to go to the hospital. On August 29, 2016, the State filed a

delinquency petition which alleged that A.P., who was born on August 19,

1999, committed acts that, if committed by an adult, would constitute

aggravated battery, battery resulting in serious bodily injury, and battery by

means of a deadly weapon.

[3] On September 12, 2016, A.P. entered an admission and the court found as true

the delinquent acts of aggravated battery as a level 3 felony if committed by an

adult and the acts of battery resulting in serious bodily injury and battery as

level 5 felonies if committed by an adult. The court released A.P. to the

custody of her parents, ordered that she be placed under the supervision of the

Hendricks County Probation Department for a period of twenty-four months,

awarded wardship of A.P. to the Department of Correction (the “DOC”) for

housing in any correctional facility for children or any community based

correctional facility for children, and ordered that the commitment to wardship

was suspended on the condition that A.P. comply with the order of supervision

Court of Appeals of Indiana | Memorandum Decision 32A04-1708-JV-1916 | November 29, 2017 Page 2 of 10 issued to her for the duration of the probation supervision period. The order of

suspension required A.P. to submit to drug screens; comply with a curfew;

complete certain programs including mental health/substance evaluation and

all recommended treatment; attend school as legally required or obtain her

GED; complete anger control counseling; and complete Cross Systems of Care

Services and follow all recommended treatment.

[4] On June 26, 2017, the probation office filed a petition to modify supervision

alleging that A.P. violated the terms of her supervision and that, on June 14,

2017, she tested positive for marijuana on a urine drug screen. On July 13,

2017, the probation office filed a supplemental petition to modify alleging that

A.P. was required to participate in Cross Systems of Care Services and that,

according to a monthly report completed by a therapist on July 9, 2017, A.P.

met for only one session in June and refused to attend a scheduled family

session with the therapist. The petition alleged that, due to her lack of

participation, the therapist who was referred through Cross Systems of Care

recommended case closure.

[5] On July 24, 2017, the court held a hearing at which A.P. and her care

coordinator, probation officer, and parents were present. The court found that

A.P. violated the terms of her supervision, that she used marijuana while on

probation, and that she had three referrals for substance abuse treatment and

refused to participate in services. The court awarded wardship of A.P. to the

DOC for housing in any correctional facility for children and stated that it

would recommend that she have a thirty-day intake and assessment.

Court of Appeals of Indiana | Memorandum Decision 32A04-1708-JV-1916 | November 29, 2017 Page 3 of 10 Discussion

[6] The juvenile court is given “wide latitude and great flexibility” in determining

the specific disposition for a child adjudicated a delinquent. D.A. v. State, 967

N.E.2d 59, 65 (Ind. Ct. App. 2012). However, its discretion is circumscribed by

Ind. Code § 31-37-18-6, which 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.

A disposition will not be reversed absent a showing of an abuse of the juvenile

court’s discretion, which occurs when the juvenile court’s order is clearly

against the logic and effect of the facts and circumstances before the court or the

reasonable inferences that can be drawn therefrom. R.H. v. State, 937 N.E.2d

386, 388 (Ind. Ct. App. 2010).

Court of Appeals of Indiana | Memorandum Decision 32A04-1708-JV-1916 | November 29, 2017 Page 4 of 10 [7] A.P. asserts the court abused its discretion in sentencing her to the DOC when

she had no history of delinquency, her probation violations were relatively

minor infractions, and there were less restrictive alternatives available. She

argues that, by smoking marijuana and not fully engaging with her therapist,

she did not pose further risk to anyone other than perhaps herself; her overall

risk assessment score placed her in the low risk to reoffend category; she took

responsibility for her behavior, admitting the initial offense and the allegations

in the petitions to revoke; and her parents were paying her costs and fees, were

present for every hearing, displayed support and a firm but fair disciplinary

approach, and were strongly opposed to placement in the DOC. She states that

she was just twenty-six days away from her eighteenth birthday when she was

committed to the DOC, and she earned her GED and completed a mentoring

program to which she had been referred.

[8] The State maintains that the court did not abuse its discretion, that A.P. had

been placed on supervised probation with a suspended commitment to the

DOC for serious and violent felony offenses, that she violated her probation by

testing positive for marijuana and not participating in treatment and therapy,

and that, despite her parents’ best efforts, A.P. continued to use marijuana and

did not take her mental health medications.

[9] The record reveals that, in September 2016, A.P. was adjudicated delinquent

for fighting another person during which she stabbed the person with a knife in

the arm and cheek, causing the person to go to the hospital, and that the court

placed her under the supervision of probation for twenty-four months. The

Court of Appeals of Indiana | Memorandum Decision 32A04-1708-JV-1916 | November 29, 2017 Page 5 of 10 court also awarded wardship of A.P. to the DOC and suspended the wardship

on the condition that she comply with the order of supervision during the

probation supervision period. The court told A.P.: “[A.P.], you need to

understand, we’ve got this referral for Cross Systems of Care and if you don’t

cooperate with them, the next thing the Court may be looking at is placing you

outside of your parents’ home in a placement facility or the Department of

Corrections.” Transcript Volume 2 at 54. The court also said “you need to be

sure that when you talk with the folks from Cross Systems of Care – you’re old

enough to ask intelligent questions and about what’s expected of you and – but

again, these services are to help you learn to manage your anger so that, as an

adult, you don’t have any more involvement with the criminal justice system.”

Id. A.P.’s probation officer later filed petitions alleging A.P. had tested positive

for marijuana and had not complied with the term of her supervision requiring

her to participate in Cross Systems of Care services.

[10] At the July 24, 2017 hearing, the State indicated that A.P. had not complied

with Cross Systems of Care and that probation was out of options. A.P.’s

attorney stated they tried to locate facilities to take A.P. as opposed to the DOC

but that A.P. would turn eighteen in August and due to her history none of the

facilities would accept her. The court asked if the allegation that she refused to

cooperate with the therapist at Cross Systems of Care was true, and A.P. replied

affirmatively. A.P.’s care coordinator testified that three referrals had been

made for her, that the family initiated the second referral and A.P. failed to

follow through with that program, that a third referral was made and she had

Court of Appeals of Indiana | Memorandum Decision 32A04-1708-JV-1916 | November 29, 2017 Page 6 of 10 some ups and downs and continues to test positive for marijuana and there was

a little issue with therapists, and that the last report received was that the third

referral had agreed to have A.P. return. The coordinator testified that A.P.

successfully completed a mentoring program and obtained her GED.

[11] A.P.’s probation officer testified that A.P. was required to participate in

substance abuse treatment, home based therapy, and drug screens, that in the

prior month she had not been participating in therapy, that with substance

abuse there had been some issues with her actually participating during the

sessions and she was suspended for a period of time, and that her understanding

was that the referral was reconsidering A.P. and she had an appointment to see

if they would take her back. The probation officer further testified that A.P. is

also supposed to be taking two medications but that she is not doing so. When

asked her recommendation for A.P., the probation officer responded “[w]ell,

unfortunately, we weren’t able to find any agencies that will take her for the 30

day diagnostic evaluation that we were hoping to have done because of her age

and because of her history of violence. So, the only real option right now

would be DOC.” Id. at 84. The probation officer identified eight placement

options that had been contacted regarding local placement for A.P. and

indicated that two placement facilities were still reviewing for A.P. and were

pending.

[12] When asked why one of the placement facilities was considered a failure and

closed out, A.P. indicated that her substance abuse counselor had her husband

do the mouth swabs, that it was just a lot of sexual harassment and she felt very

Court of Appeals of Indiana | Memorandum Decision 32A04-1708-JV-1916 | November 29, 2017 Page 7 of 10 uncomfortable, that she contacted her mentor, which was why it was closed

out, and that she was participating. A.P. indicated that, if the court would

allow her back on probation or to be accepted at one of the out of home

placements, her goal would be to obtain a job and get into college. When asked

if she knew she was supposed to complete Cross Systems of Care as part of her

probation including substance abuse treatment, and that she was not to use

substances while on probation, she responded affirmatively. She indicated that

DCS became involved in the case of her treatment by her counselor’s husband

and took no further action. She indicated she had not met with her therapist in

the month of July. A.P.’s father testified that she had done great until the last

few months, that he thought she was influenced by friends and she just wanted

to rebel a little bit to try to show that she wanted to be grown up, and that as

parents they had to step back and let her bump her head and see that the court

system is not playing and this is serious, but he also indicated that that he did

not think placement in the DOC was going to help her.

[13] The court stated that “probation has exhausted all our options and Cross

Systems of Care is our most intensive option that we can provide” and that due

to the serious nature of the underlying charges, it would commit A.P. to the

DOC. Id. at 95. In its written dispositional order, the court found in part that

A.P. was given a suspended commitment in September 2016 and placed on

probation for twenty-four months, the probation terms included a requirement

for substance abuse evaluation and successful completion of all recommended

treatment and a referral to Cross Systems of Care, that A.P. used marijuana

Court of Appeals of Indiana | Memorandum Decision 32A04-1708-JV-1916 | November 29, 2017 Page 8 of 10 while on probation, and that she had three referrals for substance abuse

treatment and refused to participate in services. It further found that A.P.

refused to participate in therapy that was referred by Cross Systems of Care; she

has mental health issues and refuses to take her medication, she has had three

to five acute hospitalizations, has received intensive outpatient services, and has

been in residential care; Cross Systems of Care attempted to place her at several

facilities which refused to accept her for placement; she would turn eighteen on

August 19, 2017; she needs mental health and substance abuse treatment and

education which she refuses to participate in; and that probation has exhausted

all services available. The court also indicated that A.P. has special needs that

require services for care and treatment that cannot be provided in the home and

that reasonable efforts were made by the probation department to prevent the

need for removal and that A.P. refuses to cooperate. The court awarded

wardship of A.P. to the DOC for housing in any correctional facility for

children.

Conclusion

[14] Based upon the record and under the circumstances, we cannot say that the

court abused its discretion in concluding that A.P. violated the terms and

conditions of her supervision with the probation department and in awarding

wardship of her to the DOC for housing in a correctional facility for children.

See D.E. v. State, 962 N.E.2d 94, 97 (Ind. Ct. App. 2011) (noting that the

juvenile had presented the option of placement at a residential treatment center

and that the trial court instead placed the juvenile in a DOC facility because

Court of Appeals of Indiana | Memorandum Decision 32A04-1708-JV-1916 | November 29, 2017 Page 9 of 10 attempts to rehabilitate his behavior were unsuccessful; observing that the

juvenile was on probation when he committed the acts underlying the

adjudication, had already violated that probation by testing positive for

marijuana, and had been suspended or expelled from multiple schools; and

holding that under the circumstances the court’s placement in the DOC was not

an abuse of discretion).

[15] For the foregoing reasons, we affirm the court’s order.

[16] Affirmed.

Baker, J., and Riley, J., concur.

Court of Appeals of Indiana | Memorandum Decision 32A04-1708-JV-1916 | November 29, 2017 Page 10 of 10