L.D.W. v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: January 23, 2018
• Docket: 02A04-1707-JV-1645
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Jan 23 2018, 9:04 am this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals court except for the purpose of establishing and Tax Court

the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Thomas C. Allen Curtis T. Hill, Jr. Fort Wayne, Indiana Attorney General of Indiana Christina D. Pace Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

L.D.W., January 23, 2018 Appellant-Respondent, Court of Appeals Case No. 02A04-1707-JV-1645 v. Appeal from the Allen Superior Court State of Indiana, The Honorable Daniel G. Heath, Appellee-Plaintiff. Judge The Honorable Michael T. Douglass, Magistrate Trial Court Cause No. 02D07-1702-JD-202

Brown, Judge.

Court of Appeals of Indiana | Memorandum Decision 02A04-1707-JV-1645 | January 23, 2018 Page 1 of 9 [1] L.D.W. appeals the trial court’s dispositional order awarding wardship of him

to the Department of Correction (the “DOC”) for housing in a correctional

facility for children. L.D.W. raises one issue which we revise and restate as

whether the court abused its discretion in entering its order. We affirm.

Facts and Procedural History

[2] On February 22, 2017, Fort Wayne police responded to a report of three

individuals, one of whom was L.D.W., born in November 2001, walking down

an alley while armed, and officers combed the area looking for the individuals.

When the officers identified the three individuals, two of them, including

L.D.W., ran west and the other ran east. L.D.W. and the other individual saw

a police vehicle and ran, the officer in the vehicle exited the vehicle and chased

them, and another officer yelled for them to stop. Another officer saw L.D.W.

and the other individual running across an empty lot directly in front of him,

ordered them to stop and get on the ground, and noticed that L.D.W. had a gun

in his hand. The officer drew his weapon, yelled for the two individuals to stop,

and fired a shot. L.D.W. dropped his gun and bent down to pick it up, and the

other individual running with L.D.W. ran into L.D.W. and knocked him to the

ground. The officer ran toward L.D.W., noticed he could not see L.D.W.’s left

hand, pointed his weapon at L.D.W., and ordered him to show his hands.

L.D.W. fell onto his back, placed his hands up in front of him, and kicked his

leg underneath the front of a car next to where he had fallen, and the officer

rolled L.D.W. onto his stomach and placed him in handcuffs. The officer

Court of Appeals of Indiana | Memorandum Decision 02A04-1707-JV-1645 | January 23, 2018 Page 2 of 9 shined a light under the car where L.D.W. had been kicking and saw what

appeared to be a handgun. L.D.W. stated that the weapon was an airsoft gun.

[3] On March 1, 2017, the State filed a petition alleging that L.D.W. was a

delinquent child in that he committed an act which, if committed by an adult,

would be the crime of resisting law enforcement as a class A misdemeanor. On

May 15, 2017, the court issued an Order on Factfinding Hearing which stated

that the court had held a factfinding hearing and found that L.D.W. is a

delinquent child and committed the delinquent act of resisting law enforcement.

The court ordered that L.D.W. be placed in temporary secure detention at the

Allen County Juvenile Center (the “ACJC”) and that he comply with all rules

and participate in educational services, in drug/alcohol group classes, and in

the Thinking Errors Program if available.

[4] On June 15, 2017, the court held a dispositional hearing at which it noted that

the reports presented to it included an ACJC Court Report, a Pre-Dispositional

Report, and a Placement Board Staffing Report. The probation department

recommended that L.D.W. be committed to the DOC. His counsel argued that

L.D.W. was making progress, had improved his grades, and desired to become

a productive member of society. His counsel also stated that, if the court

ordered him to the DOC, perhaps that might be suspended and that the least

restrictive environment would be to return home under any conditions the court

would impose. The court stated “[w]ell, DOC is the last option,” “[t]hat’s kind

of where this is at,” “[n]obody wants you to go to the [DOC],” “[b]ut the

situation you find yourself in, because of your choices, that you’ve

Court of Appeals of Indiana | Memorandum Decision 02A04-1707-JV-1645 | January 23, 2018 Page 3 of 9 acknowledged or said that you know have been poor,” and “you run out of

options just like we talked about.” Transcript at 74, 77. The court also stated

“[h]ere’s the keys young man, you get to work, put your head down, stay out of

trouble, focus on yourself, to better yourself, to make better choices, and you’ll

be released sooner than later,” “[n]ow, if you don’t do that, you want to act up

like you’ve been doing here - frankly, I’m not impressed that your disciplinary

reports have dropped off after the Fact Finding,” and “[w]e shouldn’t have any

disciplinary reports in the first place, let alone 25. That’s ridiculous. You’re

better than that. You know better than that.” Id. at 78. The court further

stated: “Court will show special findings: Has an extensive history of

incorrigible behavior, conduct is chronic, escalating, has an ample opportunity

to alter behavior, must learn logical and natural consequences of said behavior,

and is in need of rehabilitation and will benefit from a highly structured

environment.” Id. at 80. It awarded wardship of L.D.W. to the DOC for

housing in a correctional facility for children.

Discussion

[5] The issue is whether the court abused its discretion in awarding wardship of

L.D.W. to the DOC for housing in a correctional facility for children. The

juvenile court is given “wide latitude and great flexibility” in determining the

specific disposition for a child adjudicated a delinquent. 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:

Court of Appeals of Indiana | Memorandum Decision 02A04-1707-JV-1645 | January 23, 2018 Page 4 of 9 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;

(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.

[6] “Under the statute, placement in ‘the least restrictive (most family like) 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) (quoting Ind. Code § 31-37-18-6).

[7] A disposition will not be reversed absent a showing of an abuse of the juvenile

court’s discretion, which occurs when the juvenile court’s order is clearly

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

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

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

Court of Appeals of Indiana | Memorandum Decision 02A04-1707-JV-1645 | January 23, 2018 Page 5 of 9 [8] L.D.W. asserts the court abused its discretion in placing him at the DOC and

that a detention at the ACJC would fulfill the court’s finding that he needed to

learn the logical and natural consequences of his behavior, and would deprive

him of his freedom and the everyday luxury of freedom of movement. He

argues the ACJC is as structured as any facility within the DOC and as such

fulfills the court’s finding for the need of structure. He also argues that his

grades improved while he was detained at the ACJC and that his juvenile

history is not filled with serious or dangerous criminal behavior.

[9] The State maintains that L.D.W. has a history of delinquent activity, has been

offered services, and has had multiple opportunities to rehabilitate. It argues

the DOC is the least restrictive option available based on L.D.W.’s history and

failed attempts at rehabilitation, L.D.W. has already been “given the exact

treatment/opportunity that he is arguing for, detention at the [ACJC],” and

that he committed the instant offense less than two months after being released

from the ACJC. Appellee’s Brief at 10.

[10] The ACJC Court Report, dated June 1, 2017, states that, since his last court

date, L.D.W. had received three incident reports, that he was making progress

and was more compliant with ACJC staff, and that he had made significant

improvement in controlling his behavior. The report also included a summary

of L.D.W.’s medical status and his academic status. The Placement Board

Staffing Report, dated June 12, 2017, indicates that each of five representatives

recommended that L.D.W. be placed in the DOC, and the representatives listed

multiple reasons in support of their recommendation. These included L.D.W.’s

Court of Appeals of Indiana | Memorandum Decision 02A04-1707-JV-1645 | January 23, 2018 Page 6 of 9 extensive history in the juvenile system, that he has been on all levels of

probation, that his behavior in detention has been horrible and he has had over

twenty disciplinary referrals, that he has been suspended from school, that

numerous services had been offered, and that he tested positive for marijuana.

[11] The pre-dispositional report, dated June 14, 2017, indicates that L.D.W.’s legal

history includes battery resulting in bodily injury in 2011, conversion in 2013,

public intoxication in 2015, and possession of marijuana in 2016. The report

indicates L.D.W. has been subject to informal administrative probation,

informal operational probation, two periods of formal operational probation,

three periods of electronic monitoring, and two periods of confinement at the

ACJC, the first from May 5, 2016, through August 2, 2016, when he was

released on anklet supervision, and the second from October 25, 2016, through

January 4, 2017.

[12] The pre-dispositional report further provides L.D.W. has “displayed significant

behavioral issues while detained at the ACJC. He has received 24 disciplinary

referrals for contraband and failing to follow staff instructions including:

arguing, profanity, talking during resident movement, provoking, instigating, or

participating in an altercation, resident body posture during resident movement,

verbal harassment, excessive noise, and horseplay.” Appellant’s Appendix

Volume 2 at 73. With respect to L.D.W.’s education, the report states that he

began attending class at the ACJC in February 2017 and earned a grade of B+

in Algebra I and an F in English 9. It states that he struggled with attendance

once he returned to South Side High School in January 2017 as evidenced by

Court of Appeals of Indiana | Memorandum Decision 02A04-1707-JV-1645 | January 23, 2018 Page 7 of 9 four full-day truancies, sixteen class truancies, and twenty-two class tardies and

that he was suspended on three separate occasions. With respect to L.D.W.’s

health information, the report states that he was previously diagnosed with

attention deficit hyperactivity disorder and tested positive for cannabinoid by

urinalysis on February 23, 2017. The report also indicates that his overall risk

assessment score using the Indiana Youth Assessment System places him in the

high risk to reoffend category. With respect to his ACJC confinement, the

report states that he had been given ample opportunities to alter his delinquent

behaviors but refused to comply and that he could benefit from the structure

and supervision provided at the DOC. The pre-dispositional report also

indicates that L.D.W.’s case was staffed at Placement Board and it was a

unanimous recommendation that he be committed to the DOC.

[13] At the dispositional hearing, the probation department recommended that

L.D.W. be committed to the DOC and noted his lengthy history of non-

compliance and unsuccessful completions on supervision. The department

noted that L.D.W. had been confined to the ACJC two separate times, that he

was released from the more recent confinement on January 4, 2017, and that he

committed his most recent offense less than two months later. Indeed, the pre-

dispositional report indicates that L.D.W. was released from the ACJC on

January 4, 2017, and he committed the new offense of resisting law

enforcement on February 22, 2017. In its dispositional order, the court

awarded wardship of L.D.W. to the DOC and found that he has an extensive

history of incorrigible behavior, that his conduct is chronic and escalating, that

Court of Appeals of Indiana | Memorandum Decision 02A04-1707-JV-1645 | January 23, 2018 Page 8 of 9 he has had ample opportunity to alter his behavior, that he must learn logical

and natural consequences of delinquent behavior, and that he is in need of

rehabilitation and will benefit from a highly structured environment.

[14] Based upon the record and under the circumstances, we cannot say that the

court abused its discretion in awarding wardship of L.D.W. to the DOC for

housing in a correctional facility for children. See D.E. v. State, 962 N.E.2d 94,

97 (Ind. Ct. App. 2011) (noting the trial court placed the juvenile in a DOC

facility because attempts to rehabilitate his behavior were unsuccessful;

observing the juvenile had already violated probation by testing positive for

marijuana and had been suspended or expelled from multiple schools; and

holding that under the circumstances placement in the DOC was not an abuse

of discretion).

Conclusion

[15] For the foregoing reasons, we affirm the court’s order.

[16] Affirmed.

Baker, J., and Riley, J., concur.

Court of Appeals of Indiana | Memorandum Decision 02A04-1707-JV-1645 | January 23, 2018 Page 9 of 9