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

• Court: Indiana Court of Appeals
• Decided: November 18, 2019
• Docket: 19A-JV-595
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be regarded as precedent or cited before any Nov 18 2019, 8:53 am

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 Amy D. Griner Curtis T. Hill, Jr. Mishawaka, Indiana Attorney General of Indiana Marjorie Lawyer-Smith Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

J.J., November 18, 2019 Appellant, Court of Appeals Case No. 19A-JV-595 v. Appeal from the St. Joseph Probate Court State of Indiana, The Honorable Graham Polando, Appellee. Magistrate The Honorable Jason Cichowicz, Judge Trial Court Cause Nos. 71J01-1711-JD-407 71J01-1901-JD-4

Brown, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-JV-595 | November 18, 2019 Page 1 of 7 [1] J.J. appeals his commitment to the Department of Correction (the “DOC”).

We affirm.

Facts and Procedural History

[2] On December 5, 2017, the State filed a Petition Alleging Delinquency in cause

number 71J01-1711-JD-407 (“Cause No. 407”) alleging that J.J., who was born

in November 2002, committed one act of criminal trespass which would

constitute a class A misdemeanor if committed by an adult. On January 12,

2018, the juvenile court held a hearing, J.J. admitted to the allegation, and the

court found him to be delinquent and ordered placement in the “House

Detention Trust House Program.” 1 Appellant’s Appendix Volume II at 35. On

January 24, 2018, J.J. signed a Home Detention Electronic Monitoring Program

Contract, and a chronological case summary (“CCS”) entry for February 9, 2018,

states that he failed to abide by the program’s terms and conditions. Id. at 8.

Following a status hearing the same day, he was released from secure detention

on the Home Detention Electronic Monitoring Program to his mother.

[3] On February 23, 2018, the court held a dispositional hearing, placed J.J. on

“Strict and Indefinite Probation,” and ordered him to continue to be placed on

GPS for up to sixty days, obey all school rules and regulations, and participate in

various court-ordered services, including tutoring and community service. Id. at

1 The St. Joseph County Home Detention Program webpage indicates that youth are not placed on GPS under the Trust House Arrest program. See Home Detention Program, ST. JOSEPH COUNTY, https://www.sjcindiana.com/1334/Home-Detention-Program (last visited November 1, 2019).

Court of Appeals of Indiana | Memorandum Decision 19A-JV-595 | November 18, 2019 Page 2 of 7 59. The court adopted as findings the statements in the probation officer’s

predispositional report, which indicates that J.J. had two prior incidents: one in

2015 involving “Arrest” and “Theft/MA” that resulted in “Diversion” on June

1, 2016, and a second in 2017 involving “Arrest” and “Curfew Violation/S” that

resulted in “LetOfAssis” on July 26, 2017. 2 Id. at 50. The report also indicates

that J.J.’s mother stated he has accumulated nine out-of-school suspensions

during the current school year mostly for attendance-related issues, and is

currently “suspended, pending expulsion.” Id. at 53. A Home Detention

Violations and Response Report dated April 13, 2018, indicates that J.J. had a

level 3 violation when he left school without permission from Community

Corrections.

[4] Later that year, Probation Officer Dayna Carire filed a modification report which

stated J.J. had not been in compliance with probation services or “going to

school as often as he should.” Id. at 110. The court held a modification hearing

on November 13, 2018, at which Officer Carire testified about certain incidents,

including J.J.’s threatening of his pregnant teacher with statements that “on the

hood, if you call my mother I’m going to smack you” and “if you call my mother

I’m going to knock you out and break your phone.” Transcript at 9. Before

requesting that J.J. be committed for thirty days, she stated that he showed no

progress towards weekly goals, his behavior has continued to escalate, and

2 The Preliminary Inquiry prepared in Cause No. 407 indicates that J.J. “was given a letter offering assistance for a curfew violation in July 2017.” Appellant’s Appendix Volume II at 25.

Court of Appeals of Indiana | Memorandum Decision 19A-JV-595 | November 18, 2019 Page 3 of 7 probation takes his threats seriously and believes that his behaviors pose a threat

to the community. Id. at 10. The court indicated that it planned to give J.J. the

opportunity to engage in a program and that he “can’t just kind of let it slide and

think nothing’s going happen.” Id. at 13-14. The court entered an order that

continued J.J. on probation, ordered him to submit to a urine drug screen, and

committed him for thirty days to the St. Joseph County Juvenile Justice Center,

which it suspended, upon full compliance.

[5] Officer Carire filed a December 4, 2018 modification report that indicates

probation was informed eight days after J.J. started Keys Academy on November

20, 2018, that he would be attending only half days due to his behavior, and that

on November 29, 2018, he refused a staff member’s request to log into his school

work online and stated he did not feel like it and did not have to. It further

referenced J.J.’s horseplay, use of profanity, threats, absences, noncompliance

with services, and refusal to follow directions.

[6] On January 11, 2019, the State filed a separate delinquency petition in cause

number 71J01-1901-JD-4 (“Cause No. 4”) alleging that J.J. committed one act

on January 6, 2019, of resisting law enforcement which would constitute a class

A misdemeanor if committed by an adult. On January 16, 2019, J.J. admitted

to the allegation in Cause No. 4, and the court found him to be delinquent.

[7] On February 13, 2019, the court held a hearing and stated it had reviewed the

oral disposition recommendations in Cause No. 4, which indicated that, on

January 6, 2019, police officers responded to a dispatch regarding several

Court of Appeals of Indiana | Memorandum Decision 19A-JV-595 | November 18, 2019 Page 4 of 7 juveniles fighting and J.J. “attempted to intervene by trying to push past

officers,” stated “don’t touch me, don’t touch me!” when an officer told him to

stay back multiple times, and squared up and struggled with the officer before

several other officers managed to place him in handcuffs. Appellant’s

Appendix Volume II at 213. The oral disposition recommendations also stated

that J.J. “refused to submit to a UDS on 2/1/2019 and 2/11/2019” and was

disruptive and the recommendation was that he be awarded to the DOC’s care

and custody. Id. at 214. Officer Carire testified about an incident in which

probation was notified about J.J.’s behavior and he “responded that he does not

care and that Probation can’t do anything to him.” Transcript at 20.

[8] The court issued a modification order in Cause No. 407 and a dispositional

order in Cause No. 4 awarding wardship of J.J. to the DOC for housing in any

correctional facility or community-based correctional facility for children. The

orders stated they were the least restrictive alternative to insure J.J.’s welfare

and the safety and welfare of the community and had been entered because: J.J.

“has failed to abide by Court ordered terms of probation,” “[t]he present offense

is serious in nature warranting placement in a secure facility, J.J.’s “past history

of delinquent acts, even though less serious, warrants placement in a secure

facility,” he “continues to engage in substance use,” and that “[l]esser restrictive

means of controlling the child’s behavior have been investigated or tried.”

Appellant’s Appendix Volume II at 146.

Court of Appeals of Indiana | Memorandum Decision 19A-JV-595 | November 18, 2019 Page 5 of 7 Discussion

[9] The issue is whether the juvenile court abused its discretion in awarding

wardship of J.J. to the DOC. He argues that the placement is neither the least

restrictive nor in line with the rehabilitative goal of the juvenile justice system;

that he never acted upon the comments perceived as threats by his teachers nor

was he physically violent in school; and that he completed many of the court’s

ordered services and was accepted back into the school where the problems

were occurring.

[10] The juvenile court is given wide latitude and great flexibility in determining the

disposition of a delinquent child. 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 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” and “close to the parents’ home, consistent with the best interest and

special needs of the child”; least interferes with family autonomy; is least

disruptive of family life; imposes the least restraint on the freedom of the child

and the child’s parent, guardian, or custodian; and provides a reasonable

opportunity for participation by the child’s parent, guardian, or custodian.

Under the statute, placement in the least restrictive and most appropriate setting

available applies only “[i]f consistent with the safety of the community and the

best interest of the child.” J.D. v. State, 859 N.E.2d 341, 346 (Ind. 2007) (citing

Ind. Code § 31-37-18-6). We will not overturn the juvenile court’s disposition

Court of Appeals of Indiana | Memorandum Decision 19A-JV-595 | November 18, 2019 Page 6 of 7 order absent an abuse of discretion, which occurs if its actions are clearly

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

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

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

[11] J.J. was offered the opportunity to conform his behavior to an acceptable

standard while on probation and was unable to do so for even a relatively short

period of time. The juvenile court heard testimony from his probation officer

and was able to consider the filed modification reports. It received evidence

regarding his behavior in school and participation in and reasons for failure and

dismissal from various court-ordered services. While he contends that he is not a

danger, we note that J.J. committed the act in Cause No. 4 while on probation,

and the court found it to be serious in nature and warrant placement in a secure

facility. The court reviewed J.J.’s history of lesser restrictive placements and

found such options inappropriate. Based upon the record, we find no abuse of

discretion. See K.A. v. State, 775 N.E.2d 382, 387 (Ind. Ct. App. 2002) (holding

the juvenile court did not abuse its discretion in placing K.A. at the DOC where

previous less restrictive placements were unsuccessful and continued placement

at a residential treatment center was apparently no longer an available option),

trans. denied.

[12] For the foregoing reasons, we affirm the juvenile court.

[13] Affirmed.

Altice, J., and Tavitas, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-JV-595 | November 18, 2019 Page 7 of 7