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

• Court: Indiana Court of Appeals
• Decided: October 2, 2020
• Docket: 20A-JV-369
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Oct 02 2020, 8:15 am Memorandum Decision shall not be regarded as precedent or cited before any court except for the CLERK Indiana Supreme Court purpose of establishing the defense of res judicata, Court of Appeals and Tax Court collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Litany A. Pyle Curtis T. Hill, Jr. Crawfordsville, Indiana Attorney General of Indiana Myriam Serrano Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

B.G., October 2, 2020 Appellant-Respondent, Court of Appeals Case No. 20A-JV-369 v. Appeal from the Montgomery Circuit Court State of Indiana, The Hon. Harry A. Siamas, Appellee-Petitioner. Judge Trial Court Cause No. 54C01-1903-JD-89

Bradford, Chief Judge.

Court of Appeals of Indiana | Memorandum Decision 20A-JV-369 |October 2, 2020 Page 1 of 9 Case Summary [1] In April of 2019, thirteen-year-old B.G. was found to be a juvenile delinquent

for committing Level 6 felony possession of a narcotic drug and placed on

supervised probation. In June of 2019, the juvenile court revoked B.G.’s

probation because he had stolen several items, smoked spice, possessed

homemade weapons, and threatened his three-year-old cousin with harm. The

juvenile court ordered B.G. to complete a rehabilitative program at Gibault,

Inc. Over the course of the next six-and-one-half months, B.G.’s behavior

worsened as he, inter alia, assaulted Gibault staff members and other residents,

caused a great deal of damage to a classroom, and made little progress in his

education or Gibault’s program. After a review hearing in January of 2020, the

juvenile court ordered B.G. committed to the Indiana Department of

Correction (“DOC”) until the age of twenty-one or until DOC discharged him.

B.G. contends that the juvenile court abused its discretion in ordering him

committed to DOC. Because we disagree, we affirm.

Facts and Procedural History [2] On March 11, 2019, it was discovered that B.G. had stolen many items from his

mother and stepfather, including a watch, a mobile telephone, money, jewelry,

and a wallet. B.G. was also found to be in possession of hydrocodone tablets.

On March 25, 2019, the State filed a delinquency petition, alleging that B.G.

had committed what would be Class A misdemeanor theft and Level 6 felony

possession of a narcotic drug if committed by an adult. On April 22, 2019,

B.G. admitted that he had been in possession of a narcotic drug, was

Court of Appeals of Indiana | Memorandum Decision 20A-JV-369 |October 2, 2020 Page 2 of 9 adjudicated a juvenile delinquent, and was placed on supervised probation for

nine months. B.G.’s terms of probation included a substance-abuse evaluation

and treatment, mental-health counseling, community-service hours, “moral

reconation” therapy, and participation in “at least one positive prosocial

activity per day/week[.]” App. Vol. II p. 59.

[3] On May 29, 2019, the State alleged that B.G. had violated the terms of his

probation by stealing a candy bar from his community service location, stealing

money from his parents, possessing and smoking spice, possessing multiple

homemade weapons, and threatening to harm his three-year-old cousin, who

lived in his home. On June 25, 2019, the juvenile court revoked B.G.’s

probation and ordered that he be removed from his parents’ home and placed in

residential care at Gibault. B.G. was ordered to participate in and successfully

complete the program at Gibault.

[4] Gibault’s program typically takes six to nine months to complete, and B.G. was

expected to participate in three phases of the program in order to successfully

complete it. B.G. was provided services and “work[ed] on his emotional

regulation, just his anger, aggression, impulsive behaviors, communication

skills[.]” Tr. Vol. II p. 30. B.G. received individual therapy “at least once a

week” and family therapy once a month. Tr. Vol. II p. 32. Despite the services

he received, B.G. continued to misbehave while at Gibault and failed to make

progress in his services.

[5] When B.G. arrived, “he struggle[ed] with some minor incidents” such as

sneaking out of his dormitory and “peer negativity[.]” Tr. Vol. II p. 24. At a

Court of Appeals of Indiana | Memorandum Decision 20A-JV-369 |October 2, 2020 Page 3 of 9 January 17, 2020, review hearing, approximately six and one-half months after

B.G.’s placement at Gibault, the juvenile court heard evidence indicating that,

although B.G. had progressed to the second phase of the program, he had been

placed in a “step-back stage” due to lack of progress. Tr. Vol. II p. 30. The

second stage of the program required B.G. to invest in his treatment goals and

apply what he had learned in the program. Instead, B.G. had assaulted a staff

member and his peers and was destructive. B.G. had cause significant damaged

to a classroom by poking the ceiling tiles such that there was “debris

everywhere in the classroom [.]” Tr. Vol. II p. 31. As a result, the other

students had been evacuated from the classroom, and B.G. had continued

destroying the ceiling tiles “until he finally decided he was done[.]” Tr. Vol. II

p. 37. B.G.’s behaviors had included crawling around in the hallways, sneaking

into other classrooms, running out to the parking lot, threatening to run across

the street, and “[g]iving staff a hard time.” Tr. Vol. II p. 36.

[6] Moreover, B.G. performed poorly academically, did not appear to care about

his education, and exhibited the majority of his behavioral issues while in his

classes. B.G. was “very aware of the rules and regulations” and knew “the

limits he [could] push until staff [would] get involved” and would stop just

before staff became involved. Tr. Vol. II pp. 33. When staff asked B.G. why he

was engaging in bad behaviors, he would “shrug[] and often [say] I don’t

know.” Tr. Vol. II p. 33. Due to his poor behavior, B.G. was not allowed any

home passes during his time at Gibault, and his completion of the program was

“taking him longer than most.” Tr. Vol. II p. 31.

Court of Appeals of Indiana | Memorandum Decision 20A-JV-369 |October 2, 2020 Page 4 of 9 [7] B.G.’s mother had informed the juvenile court that she did not believe that the

program at Gibault was meeting B.G.’s needs. B.G.’s mother opined at the

review hearing that B.G. needed consequences for his actions that he was not

receiving at Gibault because B.G. “knows that they’re a hands-off facility and

[she] believe[d] that [B.G.] pushes it[.]” Tr. Vol. II p. 41. B.G.’s mother

indicated that she wants the best for him and that “Gibault is not the best place

for him for the simple fact that [B.G.] thinks he is in control[.]” Tr. Vol. II p.

41. B.G.’s mother also did not believe she could handle him if he were to be

sent home.

[8] Following the January 17, 2020, hearing, the juvenile court concluded that

Gibault was not the most appropriate placement for B.G.:

We’ve tried probation. We’ve tried leaving you at home. We’ve tried Gibault’s, which is a very good facility and usually works for most kids and nothing has worked so far. So, the only thing left to us at this point is a very structured place where if you misbehave then the consequences are really serious and if you misbehave then it ends up meaning time. Tr. Vol. II pp. 45–46. The juvenile court ordered that B.G. be committed to

DOC until twenty-one years old or until discharged and informed B.G. that he

would be provided with an education, counseling, and “other services that are

aimed at making sure [he] stay[s] out of trouble.” Tr. Vol. II p. 46.

Discussion and Decision [9] B.G. contends that the juvenile court abused its discretion in ordering him

committed to the DOC. A juvenile court is accorded “wide latitude” and

“great flexibility” in its dealings with juveniles. J.S. v. State, 881 N.E.2d 26, 28

Court of Appeals of Indiana | Memorandum Decision 20A-JV-369 |October 2, 2020 Page 5 of 9 (Ind. Ct. App. 2008). “[T]he choice of a specific disposition of a juvenile

adjudicated a delinquent child is a matter within the sound discretion of the

juvenile court and will only be reversed if there has been an abuse of that

discretion.” Id. The juvenile court’s discretion in determining a disposition 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. An

abuse of discretion occurs when the juvenile court’s action is “clearly

erroneous” and against the logic and effect of the facts and circumstances before

it. Id.

[10] The goal of the juvenile process is rehabilitation rather than punishment. R.H.

v. State, 937 N.E.2d 386, 388 (Ind. Ct. App. 2010). “Accordingly, juvenile

courts have a variety of placement options for juveniles with delinquency

problems, none of which are considered sentences.” Id. Indiana Code section

31-37-18-6(1)(A) 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.” “[T]he statute contains language that reveals that a more

restrictive placement might be appropriate under certain circumstances.” J.S.,

881 N.E.2d at 29. The law requires only that the disposition selected be the

least restrictive disposition that is “consistent with the safety of the community

and the best interest of the child.” D.S. v. State, 829 N.E.2d 1081, 1085 (Ind. Ct.

App. 2005).

Court of Appeals of Indiana | Memorandum Decision 20A-JV-369 |October 2, 2020 Page 6 of 9 [11] Given the evidence heard by the juvenile court, we conclude that its

commitment of B.G. to DOC does not constitute an abuse of discretion. At the

age of thirteen, B.G. was found to be in possession of hydrocodone tablets and

stolen items. Following his adjudication as a juvenile delinquent, B.G. was

placed on probation, and his behavior, if anything, worsened. B.G. violated the

terms of his probation by stealing a candy bar, stealing money from his parents,

smoking spice, possessing several handmade weapons, and threatening to harm

his three-year-old cousin. As a result, the juvenile court ordered B.G. be placed

with Gibault for a three-phase program expected to last from six to nine

months, where he was to receive services including education and therapy,

focusing on his anger, impulsive and aggressive behavior, and communication

skills. Initially, B.G. struggled, sneaking out of his dormitory and exhibiting

peer negativity. Things only got worse from there.

[12] Six and one-half months into the Gibault program, while B.G. had progressed

to the second phase, his worsening behavior had caused him to be placed in a

step-back stage. The second phase required B.G. to invest in his treatment

goals and apply what he had learned, but he chose not to do so. Instead, B.G.

engaged in violent and destructive behavior, assaulting a staff member and

some of his peers and causing significant damage to a ceiling in one of his

classrooms. B.G. would also crawl in the hallways, sneak into classrooms that

here not his, run into the parking lot, threaten to run across the street, and

generally give the staff “a hard time.” Tr. Vol. II p. 36. B.G. was well aware of

Gibault’s rules and regulations and that it was a hands-off facility, causing him

Court of Appeals of Indiana | Memorandum Decision 20A-JV-369 |October 2, 2020 Page 7 of 9 to push the limits and leading him to believe that he was in control. There is

ample evidence in the record that B.G.’s time at Gibault, if anything, had

resulted in further regression. Having heard this evidence, the juvenile court

noted that neither placing B.G. at home, on probation, nor at Gibault had

worked and concluded that B.G. required structure that he had not yet received

and where he would suffer real consequences for his actions. Under the

circumstances, we cannot say that the juvenile court’s placement of B.G. with

DOC, which would provide that structure and those consequences, amounts to

an abuse of discretion.

[13] B.G. alleges that the juvenile court failed to consider the totality of the

circumstances and properly assess recommendations from credible witnesses.

The record does not support B.G.’s allegation. Four witnesses testified at

B.G.’s review hearing and expressed concerns with B.G.’s behavior in

residential care and his lack of progress in his services. Though B.G.’s case

manager at Gibault stated that B.G. could remain in the program because they

do not give up on children unless they become a liability, she acknowledged

that B.G. was not doing well in the program and was not making progress.

B.G.’s case manager believed that it would take B.G. at least five more months

to complete the program if he bought into the program and was being consistent

with his behaviors, which he had not been doing up to that point. B.G.’s case

manager also acknowledged that Gibault cannot force children to comply with

its program and cannot confine them because it is a treatment-only facility.

Even if we assume that the juvenile court ignored this testimony, the fact is that

Court of Appeals of Indiana | Memorandum Decision 20A-JV-369 |October 2, 2020 Page 8 of 9 it does nothing to undercut the juvenile court’s disposition. There is no

indication that the juvenile court failed to properly consider the evidence

presented at the review hearing.

[14] B.G. also argues that placement in DOC is punitive. B.G., however, does not

present evidence to support this assertion, and our review of the record has

uncovered none. B.G.’s probation officer informed the juvenile court that DOC

could provide the structure that B.G. needs and also provide him with an

education, counseling, group and individual therapy, and a diagnostic intake

within the first two weeks to determine what his educational, psychiatric, and

mental health needs are and how best to address his issues. The juvenile court

informed B.G. that he would have an intake assessment to determine what

facility would be most appropriate for his needs and he would be provided with

educational services, counseling services, and other “services that are aimed at

making sure [he] stay[s] out of trouble” Tr. Vol. II p. 46. This record

demonstrates that B.G.’s placement in DOC is to provide a placement that

better fits his educational, emotional, and mental health needs rather than to

punish him for bad behavior. In the end, B.G.’s arguments are nothing more

than an invitation to reweigh the evidence, which we will not do. See J.S. v.

State, 110 N.E.3d 1173, 1175 (Ind. Ct. App. 2018), trans. denied.

[15] We affirm the judgment of the juvenile court.

Najam, J., and Mathias, J., concur.

Court of Appeals of Indiana | Memorandum Decision 20A-JV-369 |October 2, 2020 Page 9 of 9