MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jan 31 2018, 10:29 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 Donald J. Frew Curtis T. Hill, Jr. Fort Wayne, Indiana Attorney General of Indiana
George P. Sherman Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
J.M., January 31, 2018 Appellant-Respondent, Court of Appeals Case No. 02A04-1708-JV-1976 v. Appeal from the Allen Superior Court State of Indiana, The Honorable Michael T. Appellee-Petitioner Douglass, Judge Pro Tempore Trial Court Cause No. 02D07-1703-JD-359
Vaidik, Chief Judge.
Court of Appeals of Indiana | Memorandum Decision 02A04-1708-JV-1976 | January 31, 2018 Page 1 of 6 Case Summary [1] J.M. appeals the juvenile court’s order committing him to the custody of the
Indiana Department of Correction (DOC) following a violation of probation.
We affirm.
Facts and Procedural History [2] In May 2017, a dispositional hearing was held on J.M.’s admission that he
resisted law enforcement. The juvenile court suspended J.M.’s commitment to
the DOC, released him into the custody of his grandmother, and ordered him to
participate in the Allen County Juvenile Probation Department’s Electronic
Monitoring Program.
[3] A few weeks later, J.M., without permission from the juvenile probation
department, removed his electronic-monitoring device and ran away from his
grandmother’s home. His whereabouts were unknown for approximately two
weeks. When officers found J.M., he was sleeping inside of a stolen car and
had marijuana in his system. The juvenile probation department petitioned for
a modification of disposition, recommending that J.M. be placed in the custody
of the DOC. A hearing was held, and J.M. admitted that he violated the terms
of his probation.
[4] Before the court disposed of J.M.’s case, a psychological evaluation was
conducted. J.M. was given the Kaufman Brief Intelligence Test-2nd Edition,
which measures an individual’s intellectual functioning. J.M. had previously
Court of Appeals of Indiana | Memorandum Decision 02A04-1708-JV-1976 | January 31, 2018 Page 2 of 6 taken this test in 2013 and received a score that classified his intelligence as
“average.” Appellant’s App. Vol. II p. 41. J.M.’s 2017 score placed him in the
“Below Average to Lower Extreme.” Id. at 39. The test administrator noted
that J.M. suffered a “serious head injury when he was a young child, which
could be contributing to the low cognitive functioning.” Id. at 41. However,
the administrator noted that additional neurological testing would need to be
conducted to determine if J.M. had a brain injury that was affecting his
intellect. The administrator did not identify any specific follow-up testing for
J.M.
[5] At the dispositional hearing, the juvenile probation department recommended
that probation be revoked and that J.M. be committed to the DOC. The
department drew attention to J.M.’s extensive delinquent history and the
multiple opportunities afforded to J.M. to be rehabilitated:
This is designated Case 13. We’ve offered informal, formal. He’s had suspended time at [the Allen County Juvenile Center]. He’s been confined at [the Allen County Juvenile Center]. He’s been sent to residential placement. He does have a prior DOC commitment. . . . [H]e was unsatisfactorily released [from community supervision with the Center for Non-Violence]. And he has subsequently been ordered to participate in substance – in thinking errors in the secure detention – in secure detention here at the juvenile center on seven different occasions. He’s had drug and alcohol. He’s had sub – substance use counseling. He’s had medication reviews. He’s had individual and anger management counseling. We’ve done psychiatrics. He’s attended [the Day and Evening Reporting Program]. We’ve had psych assessments. He’s had home-based family-centered casework and therapy services on multiple occasions, mental health assessments. And
Court of Appeals of Indiana | Memorandum Decision 02A04-1708-JV-1976 | January 31, 2018 Page 3 of 6 he’s been a member – or a student of Deer Run Academy or [the Allen County Learning Academy] on two different occasions. Probation has attempted to work with this young man. It’s clear by the orders that have been made through the court here he’s failed to utilize any of the tools that were – that have been provided for him.
Tr. Vol. II pp. 7-8. J.M. argued that more neurological testing needed to be
conducted to understand why his intellectual ability had declined and that he
should be released back to his grandmother’s custody rather than the DOC’s.
The juvenile court agreed with the juvenile probation department and made
J.M. a ward of the DOC.
[6] J.M. now appeals.
Discussion and Decision [7] J.M. contends that it was an abuse of discretion for the juvenile court to
conclude that he should be committed to the DOC. The disposition of a
juvenile is within the juvenile court’s discretion, “to be guided by the following
considerations: the safety of the community, the best interests of the child, the
least restrictive alternative, family autonomy and life, freedom of the child, and
the freedom and participation of the parent, guardian, or custodian.” K.S. v.
State, 849 N.E.2d 538, 544 (Ind. 2006); see also Ind. Code § 31-37-18-6. We will
reverse a juvenile disposition only upon a showing that the juvenile court
abused its discretion. K.S., 849 N.E.2d at 544. An abuse of discretion occurs
when the disposition is “clearly against the logic and effect of the facts and
Court of Appeals of Indiana | Memorandum Decision 02A04-1708-JV-1976 | January 31, 2018 Page 4 of 6 circumstances before the court, or the reasonable, probable, and actual
deductions to be drawn therefrom.” Id.
[8] J.M. argues that the juvenile court’s decision was not in his best interests or
consistent with his special needs because there is no indication that the DOC
will conduct any neurological testing. J.M. relies on the discussion between the
juvenile court and the juvenile probation officers at his dispositional hearing to
support his claim. At the hearing, the juvenile court asked the juvenile
probation officers if the DOC would be able to administer the recommended
neurological testing or if the DOC would conduct its own assessment. The
officers responded that the DOC would do its own assessment, but the officers
would include a copy of the psychological report with an instruction letter
notifying the DOC that the juvenile court requested that the recommended
neurological testing be conducted. Not only does J.M. mischaracterize this
conversation, but he also does not reply to the State’s argument that the DOC is
statutorily required to conduct medical and psychological exams and order any
additional services that are appropriate. Indiana Code section 11-10-2-4
requires that all committed offenders in the custody of the DOC undergo
medical and psychological evaluations. Based on the results of these
evaluations, the DOC “shall . . .
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jan 31 2018, 10:29 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 Donald J. Frew Curtis T. Hill, Jr. Fort Wayne, Indiana Attorney General of Indiana
George P. Sherman Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
J.M., January 31, 2018 Appellant-Respondent, Court of Appeals Case No. 02A04-1708-JV-1976 v. Appeal from the Allen Superior Court State of Indiana, The Honorable Michael T. Appellee-Petitioner Douglass, Judge Pro Tempore Trial Court Cause No. 02D07-1703-JD-359
Vaidik, Chief Judge.
Court of Appeals of Indiana | Memorandum Decision 02A04-1708-JV-1976 | January 31, 2018 Page 1 of 6 Case Summary [1] J.M. appeals the juvenile court’s order committing him to the custody of the
Indiana Department of Correction (DOC) following a violation of probation.
We affirm.
Facts and Procedural History [2] In May 2017, a dispositional hearing was held on J.M.’s admission that he
resisted law enforcement. The juvenile court suspended J.M.’s commitment to
the DOC, released him into the custody of his grandmother, and ordered him to
participate in the Allen County Juvenile Probation Department’s Electronic
Monitoring Program.
[3] A few weeks later, J.M., without permission from the juvenile probation
department, removed his electronic-monitoring device and ran away from his
grandmother’s home. His whereabouts were unknown for approximately two
weeks. When officers found J.M., he was sleeping inside of a stolen car and
had marijuana in his system. The juvenile probation department petitioned for
a modification of disposition, recommending that J.M. be placed in the custody
of the DOC. A hearing was held, and J.M. admitted that he violated the terms
of his probation.
[4] Before the court disposed of J.M.’s case, a psychological evaluation was
conducted. J.M. was given the Kaufman Brief Intelligence Test-2nd Edition,
which measures an individual’s intellectual functioning. J.M. had previously
Court of Appeals of Indiana | Memorandum Decision 02A04-1708-JV-1976 | January 31, 2018 Page 2 of 6 taken this test in 2013 and received a score that classified his intelligence as
“average.” Appellant’s App. Vol. II p. 41. J.M.’s 2017 score placed him in the
“Below Average to Lower Extreme.” Id. at 39. The test administrator noted
that J.M. suffered a “serious head injury when he was a young child, which
could be contributing to the low cognitive functioning.” Id. at 41. However,
the administrator noted that additional neurological testing would need to be
conducted to determine if J.M. had a brain injury that was affecting his
intellect. The administrator did not identify any specific follow-up testing for
J.M.
[5] At the dispositional hearing, the juvenile probation department recommended
that probation be revoked and that J.M. be committed to the DOC. The
department drew attention to J.M.’s extensive delinquent history and the
multiple opportunities afforded to J.M. to be rehabilitated:
This is designated Case 13. We’ve offered informal, formal. He’s had suspended time at [the Allen County Juvenile Center]. He’s been confined at [the Allen County Juvenile Center]. He’s been sent to residential placement. He does have a prior DOC commitment. . . . [H]e was unsatisfactorily released [from community supervision with the Center for Non-Violence]. And he has subsequently been ordered to participate in substance – in thinking errors in the secure detention – in secure detention here at the juvenile center on seven different occasions. He’s had drug and alcohol. He’s had sub – substance use counseling. He’s had medication reviews. He’s had individual and anger management counseling. We’ve done psychiatrics. He’s attended [the Day and Evening Reporting Program]. We’ve had psych assessments. He’s had home-based family-centered casework and therapy services on multiple occasions, mental health assessments. And
Court of Appeals of Indiana | Memorandum Decision 02A04-1708-JV-1976 | January 31, 2018 Page 3 of 6 he’s been a member – or a student of Deer Run Academy or [the Allen County Learning Academy] on two different occasions. Probation has attempted to work with this young man. It’s clear by the orders that have been made through the court here he’s failed to utilize any of the tools that were – that have been provided for him.
Tr. Vol. II pp. 7-8. J.M. argued that more neurological testing needed to be
conducted to understand why his intellectual ability had declined and that he
should be released back to his grandmother’s custody rather than the DOC’s.
The juvenile court agreed with the juvenile probation department and made
J.M. a ward of the DOC.
[6] J.M. now appeals.
Discussion and Decision [7] J.M. contends that it was an abuse of discretion for the juvenile court to
conclude that he should be committed to the DOC. The disposition of a
juvenile is within the juvenile court’s discretion, “to be guided by the following
considerations: the safety of the community, the best interests of the child, the
least restrictive alternative, family autonomy and life, freedom of the child, and
the freedom and participation of the parent, guardian, or custodian.” K.S. v.
State, 849 N.E.2d 538, 544 (Ind. 2006); see also Ind. Code § 31-37-18-6. We will
reverse a juvenile disposition only upon a showing that the juvenile court
abused its discretion. K.S., 849 N.E.2d at 544. An abuse of discretion occurs
when the disposition is “clearly against the logic and effect of the facts and
Court of Appeals of Indiana | Memorandum Decision 02A04-1708-JV-1976 | January 31, 2018 Page 4 of 6 circumstances before the court, or the reasonable, probable, and actual
deductions to be drawn therefrom.” Id.
[8] J.M. argues that the juvenile court’s decision was not in his best interests or
consistent with his special needs because there is no indication that the DOC
will conduct any neurological testing. J.M. relies on the discussion between the
juvenile court and the juvenile probation officers at his dispositional hearing to
support his claim. At the hearing, the juvenile court asked the juvenile
probation officers if the DOC would be able to administer the recommended
neurological testing or if the DOC would conduct its own assessment. The
officers responded that the DOC would do its own assessment, but the officers
would include a copy of the psychological report with an instruction letter
notifying the DOC that the juvenile court requested that the recommended
neurological testing be conducted. Not only does J.M. mischaracterize this
conversation, but he also does not reply to the State’s argument that the DOC is
statutorily required to conduct medical and psychological exams and order any
additional services that are appropriate. Indiana Code section 11-10-2-4
requires that all committed offenders in the custody of the DOC undergo
medical and psychological evaluations. Based on the results of these
evaluations, the DOC “shall . . . order medical, psychiatric, psychological, or
other services it considers appropriate.” Ind. Code § 11-10-2-5(a). In other
words, the DOC is statutorily required to do initial medical and psychological
examinations of J.M. upon his commitment. The DOC is then obligated to
Court of Appeals of Indiana | Memorandum Decision 02A04-1708-JV-1976 | January 31, 2018 Page 5 of 6 order additional services it deems necessary for J.M., including additional
testing.
[9] Furthermore, J.M. has an extensive history of delinquent activity—this is his
thirteenth case in approximately four years. During this time, he has been
offered countless rehabilitative services, including: formal and informal
probation, the Allen County Learning Academy, the Day and Evening
Reporting Program, and the Allen County Juvenile Center. Even if the DOC
was not statutorily obligated to conduct medical and psychological
examinations, J.M. has exhausted the juvenile court’s resources. The only
viable option was for J.M. to be committed to the DOC. Accordingly, the
juvenile court did not abuse its discretion when it made J.M. a ward of the
DOC.
[10] Affirmed.
May, J., and Altice, J., concur.
Court of Appeals of Indiana | Memorandum Decision 02A04-1708-JV-1976 | January 31, 2018 Page 6 of 6