D.J. v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: October 19, 2020
• Docket: 19A-JV-3029
• 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 Oct 19 2020, 8:52 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 Glen E. Koch II Curtis T. Hill, Jr. Boren, Oliver & Coffey, LLP Attorney General of Indiana Martinsville, Indiana Steven Hosler Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

D.J., October 19, 2020 Appellant-Respondent, Court of Appeals Case No. 19A-JV-3029 v. Appeal from the Brown Circuit Court State of Indiana, The Honorable Mary Wertz, Judge Appellee-Petitioner, Trial Court Cause No. 07C01-1710-JD-153

Robb, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-JV-3029 | October 19, 2020 Page 1 of 13 Case Summary and Issue [1] D.J. was adjudicated a delinquent child in 2018 for acts that would have been

resisting law enforcement and disorderly conduct if committed by an adult. He

was placed on formal probation for six months. In the ensuing months, D.J.

continued to commit delinquent acts that resulted in the juvenile court

modifying its dispositional order multiple times to extend D.J.’s probation and

order his placement in a variety of facilities. In November 2019, after D.J.

admitted to committing additional delinquent acts, the juvenile court modified

its dispositional order to award wardship of D.J. to the Indiana Department of

Correction (“DOC”). D.J. appeals this modification, raising one issue for our

review: whether the juvenile court abused its discretion in awarding wardship

to the DOC when a less restrictive alternative was available. Concluding the

juvenile court did not abuse its discretion in committing D.J. to the DOC

because no less restrictive placement was consistent with his best interests and

the safety of the community, we affirm.

Facts and Procedural History [2] In late October 2017, thirteen-year-old D.J. was detained when he got mad and

ran from school, created a disruption in a nearby doctor’s office, and was

combative with police when they came to calm him down. At the time, D.J.

had already been on an informal adjustment, his family had an open case with

the Department of Child Services, and he had been diagnosed with bipolar and

oppositional defiance disorders, for which he was receiving services. D.J. was

Court of Appeals of Indiana | Memorandum Decision 19A-JV-3029 | October 19, 2020 Page 2 of 13 released from detention to the custody of his mother pending admission to an

acute care facility. After completing his stay at the facility, he returned to the

home of his mother and continued to receive services. In December, a petition

was filed alleging D.J. was a delinquent child for committing acts that, if

committed by an adult, would be resisting law enforcement, a Class A

misdemeanor, and disorderly conduct, a Class B misdemeanor. In January

2018, D.J. admitted to having committed the delinquent acts and was placed on

formal probation for six months. Terms of his probation included that he

“[c]ommit no acts of physical aggression or damage any property.” Appellant’s

Appendix, Volume 2 at 45.

[3] In April, the probation department filed a petition seeking modification of the

dispositional order alleging that D.J. had committed disorderly conduct and

criminal mischief, both Class A misdemeanors if committed by an adult, when

he behaved aggressively and caused property damage at school. D.J. admitted

the allegations in the petition to modify and the juvenile court modified the

dispositional order to continue D.J.’s probation until further order of the court

and place him at Gibault Children’s Services (“Gibault”) in their residential

CARE program. A review report filed in July 2018 by the probation

department stated that D.J.’s transition to residential treatment in the CARE

program had been “quite difficult”: from May 4 to July 8 he had eighty-four

incidents of non-compliance, including run away attempts, aggression toward

others, leaving assigned areas, verbal aggression, peer agitation, and property

destruction and had caused two significant injuries to himself because of his

Court of Appeals of Indiana | Memorandum Decision 19A-JV-3029 | October 19, 2020 Page 3 of 13 “out of control behaviors[.]” Id. at 87. Nonetheless, the treatment team felt he

was making progress and that a recent change of attitude might lead him to

focus on his treatment and address his behaviors. At a periodic review hearing

on July 17, 2018, the juvenile court continued D.J.’s placement in the CARE

program.

[4] On August 23, 2018, the probation department filed a request for an emergency

change of placement to a secure program at Gibault because D.J. had

swallowed two harmful objects “so he could die.” Id. at 90. The juvenile court

granted the request and ordered the change of placement. In October, while in

the secure program, D.J. was transported to a doctor’s appointment where he

became upset. On the return trip, he kicked the window out of the van and

fled, nearly being hit by a car as he ran across a road. The probation

department filed a petition seeking to modify the dispositional order alleging

D.J. had committed acts that would be criminal mischief, a Class B

misdemeanor, and escape, a Level 6 felony, if committed by an adult. D.J. was

placed in secure custody at Dickinson Juvenile Justice Center (“Dickinson”)

pending a hearing because Gibault was unwilling to let him continue in their

program. D.J. subsequently admitted the allegations and the juvenile court

continued his probation until further order of the court and ordered him

returned to Dickinson pending acceptance and placement at Wernle Youth and

Family Treatment Center (“Wernle”). D.J. was placed at Wernle on

November 6, 2018. While at Wernle, D.J. had a psychological diagnostic

evaluation and was diagnosed with disruptive mood dysregulation disorder,

Court of Appeals of Indiana | Memorandum Decision 19A-JV-3029 | October 19, 2020 Page 4 of 13 conduct disorder, and bipolar one disorder. See Transcript, Volume II at 120-

21. At the time of a review hearing in May 2019, D.J. remained at Wernle,

where he was “meeting the expectations of the program and it is expected that

he will be recommended to discharge before the beginning of school in August,

2019” at which time he would return to his mother’s home and continue on

probation. Appellant’s App., Vol. 2 at 146.

[5] In early July, however, D.J. exhibited “out of control, aggressive behaviors” at

Wernle and was taken first for a mental health assessment and then placed at

Harsha Behavioral Center for a few days. Id. at 151. When D.J. was released

back to Wernle staff, he threatened an officer and ran away. On July 15, 2019,

the probation department filed a petition to modify the dispositional order

alleging D.J. had violated his probation by committing what would be

intimidation, a Class A misdemeanor if committed by an adult, as well as

“eloping from staff, displaying aggressive, unsafe behaviors at Wernle that

resulted in an acute care placement, fail[ing] to comply with his individual

treatment plan . . ., and refusing to return to Wernle[.]” Id. at 152. At that

time, Wernle was willing to accept D.J. back into its secure private unit. After

D.J. returned to Wernle, however, his behavior escalated to the point that he

stopped communicating with his mother, he committed additional delinquent

acts such that the probation department filed two more petitions to modify the

dispositional order, and in September, Wernle indicated it was no longer

willing to house D.J. and requested his immediate removal from the program.

Court of Appeals of Indiana | Memorandum Decision 19A-JV-3029 | October 19, 2020 Page 5 of 13 D.J. was returned to secure detention at Dickinson pending the outcome of the

petitions to modify.

[6] On October 8, 2019, D.J. admitted to the allegations of the pending petitions to

modify, including that he had violated his probation by committing acts that

would be criminal mischief and two counts of disorderly conduct if committed

by an adult. D.J.’s probation officer indicated she was having trouble finding a

placement for him; she testified that the probation consultant had advised her to

apply to Midwest Academy and DePaul Academy and “if he was denied

admission to both of those facilities, that there would be no other agency in

Indiana that would accept him.” Tr., Vol. II at 190. And indeed, he had been

denied admission by both facilities because of his history of aggressive, out of

control, and self-injurious behaviors. She was pursuing a state mental health

admission at the Indiana Neurodiagnostic Institute as “frankly, . . . the only

thing I have found available for [D.J.] at this time. Other than a DOC

commitment and I would prefer not to go there.” Id. at 189.

[7] On November 27, 2019, the juvenile court held a dispositional hearing.

Jennifer Acton, the county’s chief probation officer,1 informed the court that

D.J. had been denied admission into the state hospital. He had been accepted

at a residential facility in Schererville called Compagna Academy, but she was

1 Brenda Dewees, D.J.’s regular probation officer, was unable to attend the dispositional hearing and Ms. Acton attended in her place, attesting that she had been “firmly apprised of all the nature and circumstances of . . . this action[.]” Tr., Vol. II at 198.

Court of Appeals of Indiana | Memorandum Decision 19A-JV-3029 | October 19, 2020 Page 6 of 13 concerned that “it is very similar to Wernle. A program he’s been at before.

[A]nd the security there was . . . not . . . sufficient to provide him the safety he

needs.” Id. at 199. She was also concerned because the facility was near

Chicago which would make it difficult for his mother to participate in family

counseling and regular visitation and which would also pose a danger if he were

to escape. Dickinson would not accept D.J. back into secure detention because

he had battered several staff members, returning him to his family was not

appropriate because of his behavioral issues, and no other suitable placement

was willing to take him. Thus, Acton felt there were no options other than

placement at DOC because “we’ve tried to give it some time but his . . .

behaviors have continued, they’ve increased, they’ve gotten more severe. . . .

[B]ut there is programming at [DOC], the Division of Youth Services.” Id. at

200.

[8] D.J.’s attorney asked what the downside of trying Compagna was, given that

DOC would remain an option if he did not succeed there, and Acton answered

that the downside was “he’s left these types of facilities before and the behaviors

are continuing[;] that makes him a danger to himself, . . . other students and

staff.” Id. at 202-03. She had not personally visited Compagna but spoke with

the Chief Probation Officer in Lake County, a probation officer who handles

the juveniles sent to that facility, and the local Department of Child Services

consultant. The answers she got from each of those people led her to believe

that “DOC is better prepared to handle [D.J.] and . . . it’s a more secure facility

Court of Appeals of Indiana | Memorandum Decision 19A-JV-3029 | October 19, 2020 Page 7 of 13 and he won’t be able to escape. And . . . they’ll have a better ability to handle

his behaviors.” Id. at 203.

[9] D.J. testified that he would rather go to Compagna and that he understood that

if he messed up there, there would be no other option than for him to go to

DOC. Knowing that, he believed he would finally be able to control his

behavior and his emotions and stop lashing out. He asked for “one last chance.

That’s all it takes, all it takes [is] one last chance.” Id. at 232.

[10] At the conclusion of the evidence, the juvenile court stated:

I’m truly sadden[ed] that we are here today considering Department of Corrections for you. It’s . . . a series of events that I don’t think anyone anticipated throughout these proceedings until the last few months. . . . [T]his all started with your resisting authority and it has continued to be the . . . beginning and the end of everything that the Court’s tried to do and Probation has tried to do and treatment facilities have tried to do, is that you just cannot . . . control yourself. And I think that had your time in Dickenson [sic] not been so very violent . . . to the point that a detention facility is telling the Court that they can’t take you back. That’s . . . just so significant. . . . I don’t have any faith that if you go to Compagna that you will be able to control yourself. . . . Any more than you’ve not been able to do so at Wernle and at secure detention. . . . I don’t think DOC is a good option, but I don’t know that I have any other option[.]

***

I wished that the mental health commitment at State Hospitalization would have worked. But it didn’t. And after considering all the evidence and the record of the proceeding and

Court of Appeals of Indiana | Memorandum Decision 19A-JV-3029 | October 19, 2020 Page 8 of 13 the psychological evaluation, I am awarding wardship to the Department of Corrections for housing. . . . And the reason is that . . . your conduct since after that May review hearing has really left the Court with no other realistic option.

Id. at 229-31. The court’s written order stated that “[a]fter careful

consideration, the Court finds that a commitment to the Indiana Department of

Corrections is necessary and that no less restrictive alternative exists.”

Appealed Order at 3. D.J. now appeals this disposition.

Discussion and Decision [11] D.J. asserts that the juvenile court abused its discretion in modifying his

placement “because of the low level of offenses and the poor investigation to

alternatives to DOC placement.” Appellant’s Brief at 11. The disposition of a

juvenile adjudicated a delinquent is a matter committed to the juvenile court’s

discretion, subject to the statutory considerations of the child’s welfare,

community safety, and the policy favoring the least harsh disposition. R.H. v.

State, 937 N.E.2d 386, 388 (Ind. Ct. App. 2010). Those statutory

considerations are found in Indiana Code section 31-34-19-6, 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:

Court of Appeals of Indiana | Memorandum Decision 19A-JV-3029 | October 19, 2020 Page 9 of 13 (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 juvenile court has wide latitude and great flexibility in dealing with juveniles;

however, its goal is to rehabilitate rather than punish. C.T.S. v. State, 781

N.E.2d 1193, 1203 (Ind. Ct. App. 2003), trans. denied. We review the juvenile

court’s disposition and modification orders for an abuse of discretion, which

occurs if its decision is clearly against the logic and effect of the facts and

circumstances before it or the reasonable inferences that may be drawn

therefrom. R.H., 937 N.E.2d at 388.

[12] D.J. argues his commitment to DOC was an abuse of discretion because a less

restrictive alternative was available; namely, placement at Compagna.

However, even if less harsh options are available to the juvenile court, there are

still times when commitment to a suitable institution is in the best interest of the

Court of Appeals of Indiana | Memorandum Decision 19A-JV-3029 | October 19, 2020 Page 10 of 13 juvenile and of society. D.S. v. State, 829 N.E.2d 1081, 1085 (Ind. Ct. App.

2005). Indiana Code section 31-34-19-6 requires the juvenile court to consider

the least restrictive placement only if that placement comports with the safety

needs of the community and the child’s best interests. See J.B. v. State, 849

N.E.2d 714, 718-19 (Ind. Ct. App. 2006) (concluding the juvenile’s placement

in DOC was warranted because the less-restrictive placement suggested by him

would have fallen short of meeting the community’s safety needs and his best

interests given testimony he was a danger to himself and others until he receives

substance abuse treatment and learns to modify his criminal behavior).

[13] Here, the juvenile court specifically stated that placement in a juvenile

correctional facility through the DOC was warranted because of D.J.’s “violent

conduct and history of escape[.]” Appealed Order at 2. The court noted that

“extensive efforts” had been made to provide D.J. with care, treatment, and

rehabilitation, including “supervised probation, Wrap Around Services, secure

detention, placement at Gibault in the CARE Program and then the [secure]

Program . . ., placement at Wernle [ ], a mental health assessment . . . followed

by placement [at] Harsha Behavioral Center, and then followed by a return to

Wernle.” Id. at 1. Despite these many attempts to help D.J. correct his

behavior, he failed to engage well in services—lashing out violently against

staff, destroying property, and absconding when he saw an opportunity. He

was ultimately removed from Wernle for aggressive, destructive, and self-

injurious behaviors that were escalating in severity. Dickinson, his most recent

Court of Appeals of Indiana | Memorandum Decision 19A-JV-3029 | October 19, 2020 Page 11 of 13 placement, would not accept him back into secure detention following the

dispositional hearing for similar reasons.

[14] Despite D.J.’s “low level of offenses[,]” Appellant’s Br. at 7, the juvenile court

considered the danger he posed to the safety of the community in general,

mentioning D.J.’s violent behavior toward service providers while in various

placements. The juvenile court noted that D.J. is resistant to authority and that

“these people that go to work [in these facilities] don’t deserve to get hit and

[have] things thrown at them.” Tr., Vol. II at 229. Further, the fact that D.J.’s

behavior had not been curbed despite the many services offered to him showed

that such services, including a placement that was nearly identical to

Compagna, were no longer in D.J.’s best interests because they were not

beneficial. Additional investigation into Compagna was unnecessary where it

was clear that no facility short of DOC was secure enough to control D.J.’s

“aggressive and violent” behaviors and history of escape. Appealed Order at 2.

We also note that the juvenile court acknowledged D.J.’s mental health issues.

Unfortunately, he was denied placement in a mental health institute, but the

juvenile court recommended that DOC consider those issues in its plan for

D.J.’s care, treatment, and rehabilitation.

[15] At only fifteen years old, D.J. has already had many contacts with the juvenile

court, repeatedly violating the terms of his probation and absconding from

various placements. His behavior has escalated rather than being successfully

addressed. Although D.J. contends that Compagna would be the least

restrictive placement and that the juvenile court should have ordered him

Court of Appeals of Indiana | Memorandum Decision 19A-JV-3029 | October 19, 2020 Page 12 of 13 placed there, he has not shown that there is a reasonable probability that the

program would benefit him any more than other, similar programs have. And

his own behavior precludes any other options from being willing to work with

him. We therefore conclude that it was reasonable for the juvenile court to find

that the many less restrictive services and opportunities offered to D.J. had not

been successful and that he posed a danger to both himself and to the

community. Cf. E.H. v. State, 764 N.E.2d 681, 686 (Ind. Ct. App. 2002)

(concluding juvenile’s commitment to DOC was in error where there was a less

restrictive and appropriate alternative available, no evidence that juvenile was a

threat to the community, and no explanation for commitment other than it

“being the typical next step”), trans. denied. The juvenile court was within its

discretion to conclude that commitment to a less restrictive environment than

the DOC was not in D.J.’s best interests or consistent with the safety of the

community.

Conclusion [16] The juvenile court did not abuse its discretion when it modified its dispositional

order and awarded wardship of D.J. to the DOC and its order is therefore

affirmed.

[17] Affirmed.

Crone, J., and Brown, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-JV-3029 | October 19, 2020 Page 13 of 13