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

• Court: Indiana Court of Appeals
• Decided: November 4, 2020
• Docket: 20A-JV-1019
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Nov 04 2020, 8:25 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Renee M. Ortega Curtis T. Hill, Jr. Lake County Juvenile Attorney General of Indiana Public Defender’s Office Myriam Serrano Crown Point, Indiana Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

B.C., November 4, 2020 Appellant-Respondent, Court of Appeals Case No. 20A-JV-1019 v. Appeal from the Lake Superior Court State of Indiana, The Honorable Robert G. Vann, Appellee-Petitioner. Magistrate Trial Court Cause No. 45D06-2003-JD-132

Mathias, Judge.

[1] B.C. appeals the juvenile court’s order committing him to the Indiana

Department of Correction (“DOC”).

Court of Appeals of Indiana | Memorandum Decision 20A-JV-1019 | November 4, 2020 Page 1 of 8 [2] We affirm.

Facts and Procedural History [3] Over a three-month period in 2019, then sixteen-year-old B.C. received three

delinquency referrals. Those referrals ultimately resulted in two adjudications,

one for resisting law enforcement, and the other for dangerous possession of a

firearm. As a result of the second adjudication, B.C. was placed on intensive

probation level 2, which is “the absolute highest form of supervision” offered

outside of secure detention. Tr. p. 8. While on intensive probation, B.C.—in his

mother’s home—received weekly services, including substance abuse

counseling, drug testing, individual therapy, tutoring, and mentoring. Though

B.C. was compliant, he showed little improvement. See id. at 9.

[4] Then, on February 12, 2020, B.C.’s mother found a loaded 9mm handgun

under her son’s bed and called the police. The responding officer secured the

firearm and learned that it had been reported stolen. About a month later, the

State alleged that B.C.—now seventeen years old—was delinquent for

committing what would be Level 6 felony theft of a firearm if committed by an

adult.

[5] At B.C.’s initial hearing, the State amended the delinquent act to Class A

misdemeanor dangerous possession of a firearm if committed by an adult. B.C.

admitted to the offense, and the juvenile court adjudicated him delinquent.

During the hearing, three service providers expressed safety concerns with

Court of Appeals of Indiana | Memorandum Decision 20A-JV-1019 | November 4, 2020 Page 2 of 8 releasing B.C. to his mother pending disposition. So, the court ordered B.C.

remain detained and set a date for the dispositional hearing.

[6] After the hearing was twice continued, B.C. waived the in-person requirement

and agreed to proceed by written recommendations. B.C. argued that he should

be returned to his mother’s home on house arrest with electronic monitoring.

Both the State and the probation department recommended placement in the

DOC. The State cited B.C.’s recent, prior adjudications and his pattern of

escalating behavior involving firearms. B.C.’s probation officer noted, “even

while on house arrest the youth was able to obtain a firearm.” Appellant’s App.

p. 49. The officer also recommended that B.C. receive services while

incarcerated.

[7] A few weeks later, “[a]fter a thorough review of the file and all

recommendations,” the juvenile court granted wardship of B.C. to the DOC. Id.

at 84. The court reasoned that “remaining in the home would be contrary to the

welfare of the child because the child is engaging in dangerous behaviors which

jeopardize” his well-being. Id. at 85. The juvenile court also requested B.C. “be

placed on parole supervision” to ensure that he successfully completes

counseling and certain programs while incarcerated. Id. at 84.

[8] B.C. now appeals his placement.

Standard or Review [9] A court has broad discretion when choosing the specific disposition of a

juvenile found to be delinquent. M.C. v. State, 134 N.E.3d 453, 458 (Ind. Ct. Court of Appeals of Indiana | Memorandum Decision 20A-JV-1019 | November 4, 2020 Page 3 of 8 App. 2019), trans. denied, cert denied, sub nom. M.C. v. Indiana, --- S. Ct. ----

(2020). In this context, that discretion is delineated by statute which, in most

circumstances, requires a juvenile court to select the “most family like”

placement. Ind. Code § 31-37-18-6. But placement in a more restrictive

environment, like a public institution, is appropriate when it is in the best

interest of both the juvenile and society. M.C., 134 N.E.3d at 459.

[10] We will thus reverse a juvenile court’s disposition decision only if there has

been an abuse of discretion. Id. at 458. The court abuse its discretion if its

decision 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.

Discussion and Decision [11] B.C. asserts that the juvenile court abused its discretion in committing him to

the DOC. In making this argument,1 B.C. compares his circumstances to those

in E.H. v. State, 764 N.E.2d 681 (Ind. Ct. App. 2002), trans. denied, where a

panel of this court reversed a juvenile court’s decision to grant wardship of

fourteen-year-old E.H. to the DOC, id. at 685. But, as detailed below, that

1 In a single sentence, B.C. also asserts that “with COVID-19 occurring, B.C.’s safety is at issue in being placed in location where there are large groups of people in one place.” Appellant’s Br. at 7–8. This argument is waived as B.C. has not provided any information or argument about either himself or his placement to demonstrate that his “safety is at issue.” See Ind. Appellate Rule 46(8)(a). Waiver aside, we note that the DOC has instituted an extensive plan to manage the virus in each of its facilities across the state. See IDOC Comprehensive Response to Covid-19, https://www.in.gov/idoc/about-idoc/idoc-comprehensive-response-to- covid-19/ [https://perma.cc/6TSN-WUMU]. And B.C. makes no argument that the DOC’s response is somehow inadequate.

Court of Appeals of Indiana | Memorandum Decision 20A-JV-1019 | November 4, 2020 Page 4 of 8 comparison is unavailing; and we find that the juvenile court here did not abuse

its discretion.

[12] In E.H., this court, in reversing the juvenile court’s disposition decision,

highlighted four circumstances: E.H. did not have a violent criminal record;

there was no evidence that he was a threat to the community; E.H. had made

“considerable progress” responding to services; and his foster-care placement,

where he had shown “significant improvement,” was a less restrictive

alternative placement. Id. at 685–86. None of these circumstances is present

here.

[13] B.C.’s juvenile record includes several crimes related to violence that he

committed over a short period of time. In less than a year, B.C. accumulated

four delinquency referrals that included allegations of auto theft, resisting law

enforcement, theft of a firearm, dangerous possession of a firearm, and reckless

driving. Those referrals resulted in three adjudications, including the current

offense—a second true finding for Class A misdemeanor dangerous possession

of a firearm if committed by an adult.

[14] Aside from B.C.’s concerning criminal behavior, the juvenile court was also

presented with evidence demonstrating that B.C. was a threat to the

community. One of his counselors explained that, after weekly therapy sessions

for nearly seven months, B.C. “still minimizes his behaviors.” Tr. p. 9. His

probation officer expressed the same concern. Appellant’s App. p. 50. And their

characterization is supported by B.C.’s conduct since he became involved with

Court of Appeals of Indiana | Memorandum Decision 20A-JV-1019 | November 4, 2020 Page 5 of 8 the juvenile justice system. For example, the night after B.C. was released from

a juvenile correctional facility, he was arrested for carrying a firearm. It was not

even nine months later that his mother—with B.C. on the highest form of

supervision outside of secure detention—found a stolen, loaded 9mm handgun

under her son’s bed. And though B.C. said that he needed the gun for

protection from a particular individual, B.C.’s text messages show that he

escalated the conflict to the point of telling the person “that he would be coming

to his street within 10 minutes.” Id. at 43. It is not surprising that B.C.’s

probation officer described him as “almost flippant in his attitude over the

entire situation.” Id.

[15] The record further reveals that B.C. has made little progress responding to

services. One of the providers noted that he “continue[d] to be a little

disheartened that despite the opportunities [B.C.’s] been given” he still

“make[s] these bad decisions.” Tr. p. 10. Indeed, though B.C. received weekly

drug tests, he told his probation officer that he smokes marijuana “ at least five

times a day.” Appellant’s App. p. 48. In addition to failing fourteen of nineteen

drug tests, B.C. also “attempted to falsify” two of the screens. Id. And, as noted

above, B.C.’s counselor expressed dismay that, during sessions, he continues to

minimize his actions. As B.C.’s probation officer expressed, after seven months

of services, the providers “are not seeing any type of definable change.” Tr. p. 8.

[16] Finally, the record fails to reveal a viable least restrictive placement. B.C.

argued to be returned to his mother’s home, but two service providers expressed

safety concerns with that placement, where “there is a lack of supervision and

Court of Appeals of Indiana | Memorandum Decision 20A-JV-1019 | November 4, 2020 Page 6 of 8 consistency.” Id. at 10. Indeed, B.C. was under his mother’s supervision when

he obtained the stolen firearm. And though his probation officer contacted three

placement facilities, each declined to accept B.C., with one location citing “the

seriousness of the child’s charges” and his resistance “to treatment services.”

Appellant’s App. p. 50.

[17] In sum, the record supports the juvenile court’s conclusion that a more

restrictive placement for B.C. was in the best interest of both himself and

society. See M.C., 134 N.E.3d at 459. Thus, the court did not abuse its discretion

in committing B.C. to the DOC.

[18] We make one final observation. In reviewing B.C.’s case file, we learned that he

is likely to be released from the DOC before this decision is issued. 2 We remind

B.C. of a July 2019 interview in which he told a psychologist that, if given three

wishes, one would be to “start over.” Appellant’s App. p. 77. He now has that

opportunity. And we sincerely hope that B.C.—now an adult—has learned

from his past, avoids compromising situations going forward, and ultimately

chooses to be a law-abiding citizen.

Conclusion [19] The juvenile court’s decision to place B.C. in the DOC was not an abuse of

discretion.

2 B.C. is scheduled to be released from DOC custody on November 16, 2020.

Court of Appeals of Indiana | Memorandum Decision 20A-JV-1019 | November 4, 2020 Page 7 of 8 [20] Affirmed.

Bradford, C.J., and Najam, J., concur.

Court of Appeals of Indiana | Memorandum Decision 20A-JV-1019 | November 4, 2020 Page 8 of 8