MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jun 12 2019, 6:11 am court except for the purpose of establishing the defense of res judicata, collateral CLERK Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Michelle Laux Curtis T. Hill, Jr. St. Joseph County Public Defender’s Attorney General of Indiana Office Tiffany A. McCoy South Bend, Indiana Angela Sanchez Deputy Attorneys General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
J.R., June 12, 2019 Appellant-Respondent, Court of Appeals Case No. 18A-JV-2206 v. Appeal from the St. Joseph Probate Court State of Indiana, The Honorable Appellee-Petitioner. James N. Fox, Judge Trial Court Cause No. 71J01-1607-JD-210
Kirsch, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-JV-2206 | June 12, 2019 Page 1 of 14 [1] Following his admission to sexual battery,1 which would be a Level 6 felony if
committed by an adult, J.R. appeals his placement with the Indiana
Department of Correction (“the DOC”) and raises the following issue for our
review: whether the juvenile court abused its discretion when it ordered his
placement in the DOC. He asserts that the placement was not close to his
family and home, was punitive instead of rehabilitative, and was not the least
restrictive placement or most appropriate setting for him.
[2] We affirm.
Facts and Procedural History [3] On July 7, 2016, J.R., who was fifteen years old at the time, entered the home
of his adult neighbor, C.P., unannounced and uninvited. Appellant’s App. Vol. II
at 103. At that time, C.P.’s two young children were playing outside, and she
was on the computer in her bedroom. Id. J.R. entered C.P.’s bedroom with his
erect penis sticking out of his pants. Id. J.R. approached C.P. and placed his
bare penis on her arm and rubbed her arm. Id. at 114. C.P. immediately told
J.R. to leave and that his behavior was very inappropriate. Id. at 103. J.R.
ignored C.P.’s command, grabbed her by both upper arms and attempted to
force her down on the bed. Id. C.P. pushed back and was able to keep herself
on her feet, but J.R. continued to hold her shoulders. Id. C.P. repeatedly yelled
for J.R. to leave, but instead, he ran his hands down C.P.’s sides to her buttocks
1 See Ind. Code § 35-42-4-8(a)(1)(A).
Court of Appeals of Indiana | Memorandum Decision 18A-JV-2206 | June 12, 2019 Page 2 of 14 and squeezed with both hands. Id. While still holding onto C.P.’s arms, J.R.
also attempted to kiss her on the neck several times. Id. Despite C.P.
continuously telling J.R. to get out of her bedroom and house, J.R. continued to
restrain C.P., grope her, and attempt to kiss her. Id. Before releasing C.P. and
leaving the house, J.R. told C.P., “I’m going to eat your pussy tomorrow.” Id.
J.R. then let C.P. go, said “I’m sorry,” and walked out the front door. Id. C.P.
told her live-in boyfriend what had happened, and he called the police. Id. at
106. C.P. told the responding officer that she knew J.R., that he lived three or
four doors north, and that he had played with her children before. Id.
[4] J.R. was arrested the same day. A detention hearing was held on July 11, 2016,
and J.R. was detained at the St. Joseph County Juvenile Justice Center. Id. at
16. On July 18, 2016, the State filed a delinquency petition against J.R.,
charging him with criminal confinement and sexual battery, both of which
would have been a Level 6 felony if committed by an adult. Id. at 21. On July
29, 2016, the State filed an admission agreement that offered to dismiss the
criminal confinement charge if J.R. admitted to the sexual battery charge. Id. at
23. At the initial hearing, held that same day, J.R. admitted to sexual battery
pursuant to the admission agreement. Id. at 48-52.
[5] At the dispositional hearing, held on October 14, 2016, the State expressed
concern about the seriousness of J.R.’s offense and recommended placement
with more supervision. Id. at 56-57. The juvenile court reasoned that it was in
J.R.’s best interest to be in the community and engage in intensive out-patient
counseling and placed J.R. on strict and indefinite probation. Id. at 29, 61. The Court of Appeals of Indiana | Memorandum Decision 18A-JV-2206 | June 12, 2019 Page 3 of 14 juvenile court also gave J.R. multiple court ordered requirements, including
writing an apology letter to the victim, attending school regularly without any
unexcused absences, tardies, or suspensions, participating in a prosocial
activity, and obtaining a part-time job or completing twenty hours of
community service. Id. at 30.
[6] On March 1, 2017, almost five months after the dispositional hearing, a petition
for modification was filed, and a modification hearing was held April 7, 2017.
Id. at 9, 32-34. At that time, J.R. had not written his apology letter to the
victim, completed any community service, or found a part-time job; he also had
multiple issues in school resulting in three out-of-school suspensions and his
expulsion from school. Id. at 64, 134. Specifically, J.R. received a two-day
suspension for his involvement in a fight concerning a stolen cell phone on
February 2, 2017. Id. at 134. J.R. was filming the altercation and could be
heard provoking the students to fight. Id. Three days after J.R. returned to
school from that suspension, he received another three-day suspension on
February 21, 2017, for threatening to shoot a student. Id. When J.R. returned
to school on February 27, 2017, he was suspended for five days with expulsion
requested because he had twice engaged in sexual activity with a female student
on school property in the choir dressing room. Id.
[7] The probation department was concerned that J.R. continued to place himself
in high risk situations and was being uncooperative and violating his probation.
Id. at 144. The juvenile court determined that J.R. was in need of supervision,
care, treatment, and services that were not available in the community and that
Court of Appeals of Indiana | Memorandum Decision 18A-JV-2206 | June 12, 2019 Page 4 of 14 it was in his best interest to remove him from the home. Id. at 32-33. The
court ordered J.R. to be placed in Oaklawn, a residential program, to complete
sex offense programming. Id. at 33.
[8] Because the probation department was concerned with J.R.’s impulsivity and
risky decision making, an examination of J.R.’s sexual history was conducted
through a polygraph test. Id. at 146-51. During this examination, J.R.
admitted that he became sexually active at the age of fourteen, and that, over
the next two years, he had a sexual relationship with at least twenty different
teen-aged females, with many instances occurring on school grounds. Id. at
147-48. J.R. also admitted that when he was thirteen, he had his four-year-old
cousin touch his penis and, when he was fourteen, he and his sister engaged in
mutual fondling. Id. at 150.
[9] In his first month at Oaklawn, J.R. struggled with his behavior and attitude,
but, in his second month, he became more engaged in treatment. Id. at 74.
After completing Oaklawn’s program, in April 2018, he was placed back into
the care of his mother and was ordered to continue probation and participate
with aftercare services through Lincoln Therapeutic Partnership (“LTP”). Id. at
79, 163-64. After he was placed back in his mother’s care, probation stated J.R.
became “arrogant” and did not “take his probation seriously.” Id. at 172. He
missed several appointments, and the probation department learned that when
he was released from Oaklawn, J.R. almost immediately began violating his
safety plan. Id. Specifically, another juvenile on probation who was only
Court of Appeals of Indiana | Memorandum Decision 18A-JV-2206 | June 12, 2019 Page 5 of 14 thirteen at the time indicated that, beginning in April 2018, she and J.R.
engaged in a sexual relationship. Id.
[10] J.R. took another polygraph examination on July 26, 2018, and after receiving
his results, LTP discharged him from therapy because he violated treatment
guidelines. Id. at 84. J.R. admitted to regular pornography use, sexual activity
with five to six teen-aged females, going to parties, sending and receiving nude
images, videoing girls during sexual acts, using marijuana, and using social
media. Id. at 84, 173-74. On August 14, 2018, J.R. was detained because he
was not in compliance with probation. Id. at 41. On August 21, 2018, a
modification hearing was held, and the probation department recommended
that J.R. be placed in the DOC because, although J.R. had completed a year of
residential placement and had been ordered to participate in aftercare services,
he was uncooperative, violated his safety plan multiple times, and had an
overall assessment score that placed him in the high-risk category to reoffend.
Id. at 177-78.
[11] The juvenile court determined that J.R.’s continued placement at home would
not provide the level of structure and supervision necessary and that it was in
J.R.’s best interest to be removed from the home. Id. at 42–43, 178. The
juvenile court ordered J.R. to the DOC, which would be suspended if LTP was
willing to accept J.R. back into its treatment program. Id. at 43. LTP was
unwilling to do so because J.R. consistently violated his treatment plan. Id. at
180. The probation department recommended placement in the DOC because
LTP was the sole provider of sex offender specific treatment in St. Joseph
Court of Appeals of Indiana | Memorandum Decision 18A-JV-2206 | June 12, 2019 Page 6 of 14 County, and no other community program was offered that would meet J.R.’s
treatment needs. Id. The juvenile court ordered J.R. to be placed in the DOC.
Id. at 44-46. When committing J.R. to the DOC, the juvenile court found that
“reasonable efforts were made to prevent or eliminate the need for removal”
and that the modification was the least restrictive alternative to insure the
child’s welfare and rehabilitation and the safety and welfare of the community.”
Id. at 44-45. J.R. now appeals.
Discussion and Decision [12] J.R. argues that the juvenile court abused its discretion when it ordered him to
be placed in the DOC because such a placement was punitive instead of
rehabilitative, especially because J.R. had no prior encounters with the juvenile
justice system. J.R. contends that his placement in the DOC was also not the
least restrictive and most family-like setting available and was contrary to
Indiana Code section 31-37-18-6. He maintains that, after he completed his
initial treatment at LTP, he should have been released from probation, but
because he was not, he was punished for participating in consensual sex with
other teenagers, which was not criminal behavior.
[13] “A juvenile court is accorded ‘wide latitude’ and ‘great flexibility’ in its dealings
with juveniles.” J.T. v. State, 111 N.E.3d 1019, 1026 (Ind. Ct. App. 2018)
(citing J.S. v. State, 881 N.E.2d 26, 28 (Ind. Ct. App. 2008)), trans. denied. The
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
Court of Appeals of Indiana | Memorandum Decision 18A-JV-2206 | June 12, 2019 Page 7 of 14 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.
[14] The goal of the juvenile process is rehabilitation, not punishment. Id.
“‘Accordingly, juvenile courts have a variety of placement choices for juveniles
who have delinquency problems, none of which are considered sentences.’” Id.
(quoting R.H. v. State, 937 N.E.2d 386, 388 (Ind. Ct. App. 2010)). Indiana
Code section 31-37-18-6 provides that:
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
(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;
Court of Appeals of Indiana | Memorandum Decision 18A-JV-2206 | June 12, 2019 Page 8 of 14 (4) imposes the least restraint on the freedom of the child and the child’s parent, guardian, or custodian;
(5) provides a reasonable opportunity for participation by the child’s parent, guardian, or custodian.
Ind. Code § 31-37-18-6. “[T]he statute recognizes that in certain situations the
best interest of the child is better served by a more restrictive placement.” J.S.,
881 N.E.2d at 29 (citing K.A. v. State, 775 N.E.2d 382, 387 (Ind. Ct. App. 2002),
trans. denied). 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.” J.T., 111 N.E.3d at 1026 (citing D.S. v. State, 829
N.E.2d 1081, 1085 (Ind. Ct. App. 2005)).
[15] At the time of the disposition, J.R. was seventeen years old, and his case had
been ongoing since he was fifteen years old. Although he did not have any
prior juvenile adjudications, this case involved a sexual battery, where he
entered his neighbor’s house unannounced, exposed his penis, and forcibly
restrained the neighbor while squeezing her buttocks and attempting to kiss her.
The State recommended placement with more supervision because of the
severity of the offense, but the juvenile court, reasoning that it was in J.R.’s best
interest to be in the community and to engage in intensive out-patient
counseling, placed J.R. on strict and indefinite probation. Appellant’s App. Vol.
II at 29, 56-57, 61. The juvenile court also ordered J.R. to write the victim an
apology letter, attend school regularly without any unexcused absences, tardies,
Court of Appeals of Indiana | Memorandum Decision 18A-JV-2206 | June 12, 2019 Page 9 of 14 or suspensions, participate in a prosocial activity, and obtain a part-time job or
complete twenty hours of community service. Id. at 30.
[16] Nine months later, J.R. had violated multiple terms of his probation. He failed
to write the apology letter, to complete community service, and to find a part-
time job. He had multiple issues in school resulting in three out-of-school
suspensions and a request for expulsion. Id. at 64, 134. He had been suspended
for provoking students to fight, threatening to shoot another student, and
engaging in sexual activity while on school property. Id. at 64, 134. At that
time, the juvenile court ordered J.R. to Oaklawn for a residential treatment
program, finding that it was in his best interest to be removed from the home
because “[c]ontinued placement at home would not provide the level of
structure and supervision necessary to prevent future delinquent behaviors
which are harmful to [J.R.] and others.” Id. at 35.
[17] After some initial struggle with his behavior, J.R. was able to complete the
program at Oaklawn and was released back to his mother’s care and ordered to
continue on probation. Id. at 79-80. J.R. asserts that, at that time, he should
have been released from probation because the case had been ongoing for
almost two years. However, the juvenile court determined that it was in his
best interest to monitor him after he finished the treatment program at Oaklawn
to determine if J.R. could apply the progress he made while in treatment to his
life at home. The juvenile court stated, “you’re going to have a lot more
freedom…with that freedom comes responsibility… if you comply with all the
terms we have, they’re talking about closing the case, but that’s going to require Court of Appeals of Indiana | Memorandum Decision 18A-JV-2206 | June 12, 2019 Page 10 of 14 you to make good decisions.” Id. at 79-80. This was a reasonable course of
action by the juvenile court and clearly aimed at ensuring that the goal of
rehabilitation had been reached.
[18] Instead of applying what he had learned at Oaklawn, J.R. violated probation
and his safety plan multiple times and was ultimately discharged from LTP for
violating treatment guidelines. Id. at 84. Within about three months from his
release from Oaklawn, J.R. admitted to using social media, going to parties,
using marijuana, regular pornography use, sexual activity with five to six same-
aged females, sending and receiving nude images, and videotaping females
during sexual acts, all of which violated probation and his safety plan. Id. at 84,
173-74. Additionally, another juvenile on probation indicated that she and J.R.
were in a sexual relationship that had begun in April 2018. Id. at 172. This
indicated that upon release from Oaklawn J.R. immediately began violating his
safety plan, and that despite his treatment focusing on the age of consent, he
was sexually involved with a thirteen-year-old female when he was seventeen
years old. Id. at 172. When committing J.R. to the DOC, the juvenile court
found that “reasonable efforts were made to prevent or eliminate the need for
removal” and that the modification was the least restrictive alternative to insure
the child’s welfare and rehabilitation and the safety and welfare of the
community.” Id. at 44-45.
[19] J.R. maintains that the juvenile court’s determination that he be placed in the
DOC was punitive rather than rehabilitative, citing to E.H. v. State, 764 N.E.2d
681 (Ind. Ct. App. 2002), trans. denied. In that case, E.H. was adjudicated a
Court of Appeals of Indiana | Memorandum Decision 18A-JV-2206 | June 12, 2019 Page 11 of 14 delinquent for the theft of a necklace, and this court vacated the juvenile court’s
dispositional order placing E.H. in the DOC because “the one-year
commitment imposed by the juvenile court conflicts with rehabilitative goals of
the juvenile justice system.” Id. at 685-86. This court noted that E.H. had
recently been placed in a stable foster home where he was making significant
improvement with his adjustment issues and was enrolled in home-based
counseling and in a program assisting with reunification with his family and
was making significant progress in both programs. Id. at 686. This court also
stated that there was “no evidence . . . that E.H. is a threat to the community.”
Id. This court concluded that in light of E.H.’s recent progress and given the
nature of his offense, a less restrictive placement would be more appropriate for
E.H. Id.
[20] J.R. contends that, like in E.H., his placement in the DOC should be found to
conflict with the rehabilitative goals of the juvenile system, especially in light of
the fact that J.R. has no prior encounters with the juvenile justice system.
However, E.H. is distinguishable from this case. First, J.R.’s offense, the sexual
battery of a neighbor, was far more serious than E.H.’s offense, which was the
theft of a necklace. Second, and more significant, unlike E.H., who was
showing signs of improvement and was not deemed to be a threat to the
community, here, J.R. had not shown improvement and was deemed to be a
threat to the community and himself because of his lack of improvement and
behavior.
Court of Appeals of Indiana | Memorandum Decision 18A-JV-2206 | June 12, 2019 Page 12 of 14 [21] J.R. asserts that the juvenile court failed to consider an alternative placement
when it placed him in the DOC. Just because a less restrictive alternative
exists, however, does not mean that the juvenile court must follow it. D.C. v.
State, 935 N.E.2d 290, 292 (Ind. Ct. App. 2010) (“[T]he availability of a less
restrictive alternative does not mean the juvenile court was required to order
that placement.”), aff’d on trans., 958 N.E.2d 757 (Ind. 2011). Indiana Code
section 31-37-18-6 provides that the trial court is only required to consider the
least restrictive placement 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,
717-18 (Ind. Ct. App. 2006) (concluding that the trial court did not abuse its
discretion when it committed the juvenile to the DOC because the less-
restrictive placement suggested by him would have fallen short of meeting the
community’s safety needs), trans. denied.
[22] In mentioning the seriousness of J.R.’s underlying offense, his continuous risky
behavior, uncooperativeness with probation, and violation of his safety plan,
the juvenile court considered his danger to the safety of the community. We
have previously found that the seriousness of an offense and the likelihood of
re-offense allow for commitment to the DOC. See, e.g., D.C., 935 N.E.2d at 293
(“Given the serious nature of D.C.’s offense and the likelihood that he will
reoffend, this is clearly a situation in which commitment to a less restrictive
environment than DOC is not in the best interest of D.C. or of the
community.”). Additionally, the juvenile court’s finding that J.R. had
completed a year of residential treatment, which had failed to curb his risky
Court of Appeals of Indiana | Memorandum Decision 18A-JV-2206 | June 12, 2019 Page 13 of 14 behavior, showed that such services were no longer in J.R.’s best interest.
Although J.R. asserts that he did nothing criminal and was being punished for
typical teenager behavior, the evidence showed that, while on probation, J.R.
did commit potentially illegal acts, and the juvenile court properly considered
these acts when determining the best placement.
[23] We conclude that it was reasonable for the juvenile court to find that the
services and opportunities offered to J.R. had not been successful and that he
posed a danger to both himself and to the community. Because of the serious
nature of J.R.’s underlying offense, his failure to engage in and benefit from
past services offered, and the likelihood that he will reoffend, we find that the
juvenile court was within its discretion to conclude that commitment to a less
restrictive environment than the DOC was not in the best interest of J.R. or
consistent with the safety of the community. The juvenile court did not abuse
its discretion when it ordered J.R.’s placement in the DOC.
[24] Affirmed.
Vaidik, C.J., and Altice, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-JV-2206 | June 12, 2019 Page 14 of 14