K.M. v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: February 6, 2020
• Docket: 19A-JV-1340
• 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 Feb 06 2020, 7:22 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 Amy D. Griner Curtis T. Hill, Jr. Mishawaka, Indiana Attorney General of Indiana

Samantha M. Sumcad Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

K.M., February 6, 2020 Appellant-Respondent, Court of Appeals Case No. 19A-JV-1340 v. Appeal from the St. Joseph Probate Court State of Indiana, The Honorable Jason Cichowicz, Appellee-Petitioner. Judge The Honorable Graham Polando, Magistrate Trial Court Cause No. 71J01-1711-JD-396

Bradford, Chief Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-JV-1340| February 6, 2020 Page 1 of 5 Case Summary [1] In October of 2017, K.M. committed what would be Level 4 felony burglary if

committed by an adult. In April of 2019, after multiple less-restrictive

placements were unsuccessful, the juvenile court placed K.M. in the Indiana

Department of Correction (“DOC”). K.M. contends that the juvenile court

abused its discretion by placing him in the DOC. We affirm.

Facts and Procedural History [2] On October 30, 2017, a South Bend resident witnessed three males, one being

K.M., attempting to kick in the doors of a neighboring residence. After

receiving a dispatch, police arrived at the residence and found the back door

forcibly opened and a window broken. The residence was ransacked, with

multiple items of the homeowner’s property strewn outside the residence. On

November 13, 2017, the State filed a delinquency petition against K.M.,

alleging that he had committed what would be Level 4 felony burglary if

committed by an adult. At the initial hearing, K.M. admitted to the burglary,

and the juvenile court placed him on strict probation with sixty days to be

served on home detention.

[3] In May of 2018, the juvenile court ordered that K.M. be placed at Lakeside

Academy, a residential-program facility, after he tested positive for marijuana

twice and left home without permission twice. In October of 2018, K.M. left

Lakeside Academy without permission, but upon his return, was given a second

Court of Appeals of Indiana | Memorandum Decision 19A-JV-1340| February 6, 2020 Page 2 of 5 opportunity to complete the program. In December of 2018, the juvenile court

placed K.M. at Rite of Passage DePaul Academy (“Rite of Passage”), after

K.M. falsely reported that he was being assaulted at Lakeside Academy. On

April 26, 2019, the juvenile court ordered that K.M. be placed in the DOC after

he refused to participate in the residential program at Rite of Passage.

[4] On May 21, 2019, K.M. requested the appointment of counsel in order to

initiate an appeal of the juvenile court’s order modifying his placement. On

May 30, 2019, K.M., through counsel, moved for permission to file a belated

appeal pursuant to Indiana Post-Conviction Rule 2, which motion was denied

by the juvenile court. On June 6, 2019, K.M. again moved for permission to file

a belated appeal pursuant to Indiana Trial Rule 60, which motion was denied

by the juvenile court.

Discussion and Decision [5] At the outset, we choose to address K.M.’s claim on the merits despite the fact

that he has not been permitted to file a belated notice of appeal, generally a

prerequisite to pursuing an appeal in this court.1 Proceeding to those merits,

K.M. contends that the juvenile court abused its discretion by placing him in

the DOC.

1 Indiana Appellate Rule 1 provides that “The Court may, upon the motion of a party or the Court’s own motion, permit deviation from these Rules.”

Court of Appeals of Indiana | Memorandum Decision 19A-JV-1340| February 6, 2020 Page 3 of 5 The specific disposition of a delinquent 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. We reverse only for an abuse of discretion, namely a decision that is clearly against the logic and effect of the facts and circumstances before the court, or the reasonable, probable, and actual deductions to be drawn therefrom.

K.S. v. State, 849 N.E.2d 538, 544 (Ind. 2006) (internal citations and quotations

omitted).

[6] Many placements less restrictive than the DOC have been tried, but none have

caused K.M. to reform himself. K.M. has been placed on strict probation, home

detention, and in two different residential placements, all to no avail. While on

home detention and at Lakeside Academy, K.M. left the placements without

permission. K.M. also falsely claimed to have been assaulted while at Lakeside

Academy. While residing at Rite of Passage, K.M. made clear that he had no

intentions of taking the program seriously stating, “I am tired of this place, can

I just go home already, this place is soft. I’d rather go to county, and pay a bond

and bail out.” Appellant’s App. Vol. II p. 217. Moreover, both the probation

department and the staff at Rite of Passage believe that K.M.’s continuous

failure to cooperate with probation services and disregard for the guidelines set

forth by the residential programs warrants correctional placement. Given the

numerous, less-restrictive placement opportunities and K.M.’s failure to abide

by the guidelines of those placements, we agree that the more structured

Court of Appeals of Indiana | Memorandum Decision 19A-JV-1340| February 6, 2020 Page 4 of 5 environment of the DOC is warranted. K.M. has failed to establish that the

juvenile court abused its discretion.

[7] The judgment of the juvenile court is affirmed.

Robb, J., and Altice, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-JV-1340| February 6, 2020 Page 5 of 5