In The Matter of J.H., A Child Alleged To Be Delinquent v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: November 29, 2016
• Docket: 46A03-1604-JV-945
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Nov 29 2016, 8:03 am regarded as precedent or cited before any 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 Jennifer L. Koethe Gregory F. Zoeller LaPorte, Indiana Attorney General of Indiana Caryn N. Szyper Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In The Matter of J.H., November 29, 2016

A Child Alleged To Be Court of Appeals Case No. 46A03-1604-JV-945 Delinquent, Appeal from the LaPorte Circuit Appellant-Defendant, Court v. The Honorable Thomas Alevizos, Judge State of Indiana, The Honorable W. Jonathan Forker, Magistrate Appellee-Plaintiff. Trial Court Cause No. 46C01-1512-JD-213

Bailey, Judge.

Court of Appeals of Indiana | Memorandum Decision 46A03-1604-JV-945 | November 29, 2016 Page 1 of 10 Case Summary [1] J.H. was adjudicated a delinquent, with the trial court entering true findings for

(1) Leaving Home Without Permission1 and (2) Theft.2 On appeal, J.H.

challenges his Leaving Home Without Permission adjudication as well as

aspects of the juvenile court’s disposition. We affirm.

Issues [2] J.H. raises two restated issues:

I. Whether the evidence is sufficient to support his true finding of Leaving Home Without Permission; and

II. Whether the juvenile court abused its discretion when it placed J.H. in a residential facility.

Facts and Procedural History [3] On November 23, 2015, sixteen-year-old J.H. was with his mother (“Mother”)

at a Dollar Tree store in Michigan City, Indiana. Without Mother’s

permission, J.H. left Dollar Tree and went to the nearby Family Dollar store,

where Kimberly Walker (“Walker”) was working. Walker saw J.H. pick up

underwear and walk behind the end of an aisle. When Walker heard a rattle of

1 Ind. Code § 31-37-2-2. 2 I.C. § 35-43-4-2.

Court of Appeals of Indiana | Memorandum Decision 46A03-1604-JV-945 | November 29, 2016 Page 2 of 10 packaging, she approached J.H. and saw him put a scarf and underwear in his

jacket. J.H. then looked at Walker, said “I was not stealing,” and began to pull

items from his pockets as he exited. Just outside the store, J.H. dropped gloves

with tags on them. He ran toward Dollar Tree and got in line with Mother.

[4] Walker went to Dollar Tree to alert staff, who told her to call the police. When

the police arrived, J.H. had again left without Mother’s permission. Mother

reported J.H. as a runaway and requested that police bring J.H. to Dollar Tree.

[5] On December 11, 2015, the State alleged J.H. to be a delinquent for (1) Leaving

Home Without Permission and (2) Theft, which would be a Class A

misdemeanor if committed by an adult. The State also included allegations of

Theft and Intimidation for unrelated incidents. Following a fact-finding

hearing on March 28, 2016, the juvenile court entered true findings for the

Leaving Home Without Permission and Theft allegations related to the

November 23 events. There were no true findings for the other allegations.

[6] Following the fact-finding hearing, the juvenile court asked J.H. and the State

when they wanted to hold a dispositional hearing. J.H. and the State indicated

they were ready, and the juvenile court proceeded to disposition. The

probation department recommended that J.H. be placed at a particular

residential facility, basing its recommendation on the services J.H. had

previously received as well as letters from two psychiatrists that recommended

residential placement. The probation officer present at the hearing noted that

the particular facility no longer had a bed immediately available for J.H. but

Court of Appeals of Indiana | Memorandum Decision 46A03-1604-JV-945 | November 29, 2016 Page 3 of 10 one would be available in May 2016, and recommended that J.H. remain on

the secure side of the detention center until then. The State agreed with the

recommendation but the defense objected to residential placement. The

juvenile court followed the probation department’s recommendation in entering

its dispositional decree.

[7] J.H. now appeals.

Discussion and Decision Sufficiency of the Evidence [8] In juvenile delinquency adjudication proceedings, the State must prove every

element of the offense beyond a reasonable doubt. A.B. v. State, 885 N.E.2d

1223, 1226 (Ind. 2008). We do not reweigh the evidence or judge the credibility

of witnesses. Al-Saud v. State, 658 N.E.2d 907, 909 (Ind. 1995). Rather, we

consider only the evidence and reasonable inferences most favorable to the

judgment. Id. We affirm if the evidence and those inferences constitute

substantial evidence of probative value to support the judgment. A.B., 885

N.E.2d at 1226.

[9] Indiana law provides that a “child commits a delinquent act if, before becoming

eighteen (18) years of age, the child leaves home or a specific location

previously designated by the child’s parent, guardian, or custodian: (1) without

reasonable cause; and (2) without permission of the parent, guardian, or

custodian, who requests the child’s return.” I.C. § 31-37-2-2.

Court of Appeals of Indiana | Memorandum Decision 46A03-1604-JV-945 | November 29, 2016 Page 4 of 10 [10] J.H. points out that he and Mother never had a specific conversation at Dollar

Tree about him staying at the store. Thus, J.H. seemingly challenges whether

the State proved J.H. left a designated location without permission. Here, at

the fact-finding hearing, Mother testified that J.H. did not have permission to

leave Dollar Tree. As a general rule, J.H. was to stay with her in the store, and

he did not have permission to go where he wanted without telling her. J.H. did

not tell Mother he was leaving. Under these facts, we find J.H.’s challenge to

the location and permission elements unavailing.

[11] More pointedly, however, J.H. suggests the evidence is insufficient because

Mother asked the police to return J.H. to the Dollar Tree but she did not ask

J.H. to return. J.H. relies on T.W. v. State, 864 N.E.2d 361, 365 (Ind. Ct. App.

2007), trans. denied. There, in the context of a case involving a request directed

at a child to return, we used language about making the request to the child.

The statute, however, does not expressly specify to whom a parent must direct

her request. See I.C. § 31-37-2-2 (requiring that the “parent, guardian, or

custodian . . . request the child’s return.”). Nonetheless, when examining the

statute in T.W., we observed as we do now that the “goal of statutory

construction is to determine, give effect to, and implement the intent of the

legislature.” T.W., 864 N.E.2d at 365 (citing Sales v. State, 723 N.E.2d 416, 420

(Ind. 2000)). We presume the legislature “intended the language used in the

statute to be applied logically and not to bring about an unjust or absurd result.”

Id. Here, J.H. invites an illogical reading of the “runaway” statute, in which

Court of Appeals of Indiana | Memorandum Decision 46A03-1604-JV-945 | November 29, 2016 Page 5 of 10 the statute would never apply where a parent could not contact the child after

the child ran away. This could not have been the legislature’s intent.

[12] We find that the evidence is sufficient to sustain J.H.’s adjudication.

Residential Placement [13] The juvenile court has discretion to choose the specific disposition of a juvenile

adjudicated a delinquent, “subject to the statutory considerations of the welfare

of the child, the community’s safety, and the Indiana Code’s policy of favoring

the least harsh disposition.” C.T.S. v. State, 781 N.E.2d 1193, 1202 (Ind. Ct.

App. 2003). We will not reverse a juvenile disposition unless the juvenile court

abuses its discretion. Id. The juvenile court abuses its discretion if its action is

“clearly erroneous and against the logic and effect of the facts and

circumstances before the court, or the reasonable, probable, and actual

deductions to be drawn therefrom.” D.B. v. State, 842 N.E.2d 399, 404-05 (Ind.

Ct. App. 2006).

[14] Indiana Code Section 31-37-18-6 sets forth a list of factors that the juvenile

court must consider in entering a dispositional decree, and provides as follows:

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 Court of Appeals of Indiana | Memorandum Decision 46A03-1604-JV-945 | November 29, 2016 Page 6 of 10 (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.

[15] We have previously noted that this section requires that the juvenile court select

the least restrictive placement in most situations. D.B., 842 N.E.2d at 405.

“However, the statute contains language which reveals that under certain

circumstances a more restrictive placement might be appropriate.” K.A. v. State,

775 N.E.2d 382, 386-87 (Ind. Ct. App. 2002), trans. denied. Indeed, the statute

requires placement in the least restrictive setting only if such placement is

“consistent with the safety of the community and the best interest of the child.”

I.C. § 31-37-18-6. In other words, “the statute recognizes that in certain

situations the best interest of the child is better served by a more restrictive

placement.” K.A., 775 N.E.2d at 387.

[16] J.H. argues that the juvenile court abused its discretion in ordering his

placement in the particular residential facility because “there was no evidence

presented that another similar or less restrictive program in La Porte County

was not available or that [the probation’s department’s proposed residential Court of Appeals of Indiana | Memorandum Decision 46A03-1604-JV-945 | November 29, 2016 Page 7 of 10 facility] was the most appropriate facility.” (Appellant’s Br. at 14.) Here, the

predispositional report indicated that J.H. had two previous true findings,

multiple diagnoses, and a history of school suspensions. Mother had been

trying to find residential placement for J.H., but was unable to find a facility

that would accept him. At the hearing, the probation officer observed that J.H.

had previously been provided Level 1 home detention, Level 2 home detention,

supervised probation, administrative probation, GPS monitoring, secure

detention, and non-secure detention. J.H. had also received outpatient and

inpatient care as well as counseling, therapy, psychiatric services, and

medication management. Two psychiatrists wrote letters recommending

residential placement. Moreover, at the hearing, Mr. Bunch (“Bunch”), a

licensed therapist who submitted a report, opined that residential placement

was best for J.H. and noted that J.H. “flourish[es] under [the] structure and

consistency” of a secure facility. (Tr. 90-91).

[17] The statute requires placement in the least restrictive setting only if such

placement is “consistent with the safety of the community and the best interest

of the child.” I.C. § 31-37-18-6. Here, the juvenile court heard that a series of

less-restrictive options had not been effective, and several professionals opined

that placement was in J.H.’s best interests. We cannot say that the trial court

abused its discretion when placing J.H. in the residential facility, or by ordering

that J.H. stay in the detention facility until a bed in the residential facility was

available.

Court of Appeals of Indiana | Memorandum Decision 46A03-1604-JV-945 | November 29, 2016 Page 8 of 10 [18] J.H. further argues that the juvenile court erred because “no testimony was

presented from probation and there was no opportunity for J.H.’s counsel to

cross examine witnesses regarding the pre-dispositional report, probation’s

recommendation and the reports from J.H.’s psychologists.” (Appellant’s Br. at

14). The record reflects, however, that during the dispositional phase of the

hearing—which J.H. elected to immediately begin—the probation department

did offer its recommendation. J.H. did not cross-examine the probation

department’s statements, call witnesses, or challenge the content of the

predispositional report. J.H. did remark that he was not aware of Bunch’s

report. In response, the juvenile court noted that it had asked about proceeding

to disposition because it “didn’t know if [J.H.] wanted time to review things

and come back at another time[,]” and would consider postponing, but J.H. did

not respond. (Tr. at 91.)

[19] We find that, contrary to J.H.’s characterization, it was not that J.H. was

deprived of any opportunity but that J.H. did not take advantage of the

opportunity that was presented to him. Accordingly, J.H. has waived this line

of argument. See Dillard v. State, 827 N.E.2d 570, 577 (Ind. Ct. App. 2005)

(finding waiver in the criminal context where a defendant, “having been

afforded the opportunity to review the [presentence investigation] report[,] . . .

fail[ed] to register an objection to the information contained therein . . . .”),

trans denied.

Court of Appeals of Indiana | Memorandum Decision 46A03-1604-JV-945 | November 29, 2016 Page 9 of 10 Conclusion [20] The evidence is sufficient to support J.H.’s adjudication of Leaving Home

Without Permission and the trial court did not abuse its discretion in ordering

that J.H. be placed in a residential facility.

[21] Affirmed.

Najam, J., and May, J., concur.

Court of Appeals of Indiana | Memorandum Decision 46A03-1604-JV-945 | November 29, 2016 Page 10 of 10