MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Nov 26 2019, 9:16 am
court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Jeffery Haupt Curtis T. Hill, Jr. Law Office of Jeffery Haupt Attorney General South Bend, Indiana Lauren A. Jacobsen Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
T.L., November 26, 2019 Appellant-Respondent, Court of Appeals Case No. 19A-JV-1257 v. Appeal from the St. Joseph Probate Court State of Indiana, The Honorable Jason A. Appellee-Petitioner Cichowicz, Judge
The Honorable Graham C. Polando, Magistrate Trial Court Cause Nos. 71J01-1812-JD-426 71J01-1809-JD-325 71J01-1901-JD-24 71J01-1901-JD-25
Court of Appeals of Indiana | Memorandum Decision 19A-JV-1257 | November 26, 2019 Page 1 of 8 Crone, Judge.
Case Summary [1] In four separate causes, sixteen-year-old T.L. was adjudicated delinquent for
acts amounting to level 5 felony child pornography, level 6 felony child
exploitation, level 6 felony escape, level 6 felony auto theft, and class A
misdemeanor theft if committed by an adult. In a joint dispositional hearing on
all four causes, the trial court ordered his placement in the Indiana Department
of Correction (“DOC”). T.L. now appeals his placement. Finding that the trial
court acted within its discretion in ordering T.L.’s placement in the DOC, we
affirm.
Facts and Procedural History [2] In the summer of 2018, fourteen-year-old H.S. was playing basketball on an
outdoor court in South Bend. T.L. and his cousin were at the same outdoor
recreation area, and T.L. approached H.S., with whom he was acquainted. The
two went behind a nearby residence, and T.L. told H.S. that he would hurt her
family if she did not perform oral sex on him. H.S. complied, but unbeknownst
to her, either T.L. or his cousin was videotaping the sexual encounter on a cell
phone. T.L. subsequently posted the video on a Facebook messenger group
chat that he and his friends used to display videos depicting nudity and sexual
situations. H.S.’s mother became aware of the video and notified police, who
commenced an investigation.
Court of Appeals of Indiana | Memorandum Decision 19A-JV-1257 | November 26, 2019 Page 2 of 8 [3] In September 2018, police received a report of two teenage boys who stole
merchandise worth $412 from a local retail store and sped off in a vehicle with
two other boys. The store manager and police officers gave chase, and T.L.
was eventually found behind a dumpster outside another retail store and
apprehended. At the time of his apprehension, he was wearing a pair of jeans
he had stolen. The State filed a delinquency petition alleging conduct
amounting to class A misdemeanor theft (“Cause 325”). During the pendency
of Cause 325, T.L. was placed on home detention with electronic monitoring.
After a factfinding hearing, the trial court entered a true finding. The State
requested that T.L.’s home detention be continued due to the ongoing
investigation of the videotape incident involving H.S.
[4] Shortly thereafter, based on that incident, the State filed a juvenile delinquency
petition alleging that T.L. committed acts amounting to level 5 felony child
exploitation and level 6 felony child pornography if committed by an adult
(“Cause 426”). During the pendency of Cause 426, T.L. cut off his electronic
ankle monitor and ran away from home. His whereabouts were unknown for
approximately two weeks, until he was discovered driving a vehicle that had
been reported as stolen from an automobile dealership. A standoff ensued
between T.L. and South Bend Police Department Officer Alan Wiegand.
When Officer Wiegand walked toward the front of the vehicle in an alley, T.L.
pressed the accelerator. However, the vehicle was in neutral, and the officer
safely reached the driver’s side. T.L. eventually was removed from the vehicle.
Inside the vehicle, officers discovered two additional key fobs belonging to
Court of Appeals of Indiana | Memorandum Decision 19A-JV-1257 | November 26, 2019 Page 3 of 8 different vehicles. T.L. was placed in detention at the local juvenile justice
center, where he accumulated nearly forty misconduct reports in three months’
time.
[5] The State filed additional delinquency petitions against T.L. for conduct
amounting to level 6 felony escape (“Cause 24”) and level 6 felony auto theft
(“Cause 25”). T.L. admitted to the allegations in Causes 24 and 25 but denied
the allegations in Cause 426. After a factfinding hearing in Cause 426, the trial
court entered true findings for level 5 felony child exploitation and level 6
felony child pornography. The court ordered that T.L. undergo a psychosexual
evaluation. During the evaluation, he admitted to being involved in a gang and
reported that he had stolen more than fifty vehicles without being caught. He
also requested a copy of his police report so that he could write a rap song about
it. Evaluating psychologist Dr. Jeffrey Burnett found T.L. to be antisocial,
impulsive, and self-centered, and a high risk to reoffend.
[6] The trial court conducted a joint dispositional hearing for all four causes. Dr.
Burnett recommended that T.L.’s placement be restrictive. The probation
department recommended placement in the DOC based on the findings in Dr.
Burnett’s report and T.L.’s numerous misconduct reports, which included
incidents of gang promotion, threatening staff and peers, and battering a peer.
The trial court committed T.L. to the DOC. T.L. now appeals his
commitment. Additional facts will be provided as necessary.
Court of Appeals of Indiana | Memorandum Decision 19A-JV-1257 | November 26, 2019 Page 4 of 8 Discussion and Decision [7] T.L. challenges his placement in the DOC. The disposition of a juvenile
adjudicated a delinquent is a matter committed to the trial court’s discretion,
subject to the statutory considerations of the child’s welfare, community safety,
and the policy favoring the least harsh disposition. R.H. v. State, 937 N.E.2d
386, 388 (Ind. Ct. App. 2010). We review the trial court’s dispositions for an
abuse of discretion, which occurs if its decision is clearly against the logic and
effect of the facts and circumstances before it or the reasonable inferences that
may be drawn therefrom. Id.
[8] Juvenile court proceedings are civil, not criminal, in nature. J.S. v. State, 110
N.E.3d 1173, 1175 (Ind. Ct. App. 2018), trans. denied (2019). “[T]he goal of the
juvenile process is rehabilitation so that the youth will not become a criminal as
an adult.” Id. at 1175-76 (quoting R.H., 937 N.E.2d at 388). Thus, juvenile
courts have a variety of placement choices. Id. at 1176. Indiana Code Section
31-37-18-6 reads,
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
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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 Nov 26 2019, 9:16 am
court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Jeffery Haupt Curtis T. Hill, Jr. Law Office of Jeffery Haupt Attorney General South Bend, Indiana Lauren A. Jacobsen Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
T.L., November 26, 2019 Appellant-Respondent, Court of Appeals Case No. 19A-JV-1257 v. Appeal from the St. Joseph Probate Court State of Indiana, The Honorable Jason A. Appellee-Petitioner Cichowicz, Judge
The Honorable Graham C. Polando, Magistrate Trial Court Cause Nos. 71J01-1812-JD-426 71J01-1809-JD-325 71J01-1901-JD-24 71J01-1901-JD-25
Court of Appeals of Indiana | Memorandum Decision 19A-JV-1257 | November 26, 2019 Page 1 of 8 Crone, Judge.
Case Summary [1] In four separate causes, sixteen-year-old T.L. was adjudicated delinquent for
acts amounting to level 5 felony child pornography, level 6 felony child
exploitation, level 6 felony escape, level 6 felony auto theft, and class A
misdemeanor theft if committed by an adult. In a joint dispositional hearing on
all four causes, the trial court ordered his placement in the Indiana Department
of Correction (“DOC”). T.L. now appeals his placement. Finding that the trial
court acted within its discretion in ordering T.L.’s placement in the DOC, we
affirm.
Facts and Procedural History [2] In the summer of 2018, fourteen-year-old H.S. was playing basketball on an
outdoor court in South Bend. T.L. and his cousin were at the same outdoor
recreation area, and T.L. approached H.S., with whom he was acquainted. The
two went behind a nearby residence, and T.L. told H.S. that he would hurt her
family if she did not perform oral sex on him. H.S. complied, but unbeknownst
to her, either T.L. or his cousin was videotaping the sexual encounter on a cell
phone. T.L. subsequently posted the video on a Facebook messenger group
chat that he and his friends used to display videos depicting nudity and sexual
situations. H.S.’s mother became aware of the video and notified police, who
commenced an investigation.
Court of Appeals of Indiana | Memorandum Decision 19A-JV-1257 | November 26, 2019 Page 2 of 8 [3] In September 2018, police received a report of two teenage boys who stole
merchandise worth $412 from a local retail store and sped off in a vehicle with
two other boys. The store manager and police officers gave chase, and T.L.
was eventually found behind a dumpster outside another retail store and
apprehended. At the time of his apprehension, he was wearing a pair of jeans
he had stolen. The State filed a delinquency petition alleging conduct
amounting to class A misdemeanor theft (“Cause 325”). During the pendency
of Cause 325, T.L. was placed on home detention with electronic monitoring.
After a factfinding hearing, the trial court entered a true finding. The State
requested that T.L.’s home detention be continued due to the ongoing
investigation of the videotape incident involving H.S.
[4] Shortly thereafter, based on that incident, the State filed a juvenile delinquency
petition alleging that T.L. committed acts amounting to level 5 felony child
exploitation and level 6 felony child pornography if committed by an adult
(“Cause 426”). During the pendency of Cause 426, T.L. cut off his electronic
ankle monitor and ran away from home. His whereabouts were unknown for
approximately two weeks, until he was discovered driving a vehicle that had
been reported as stolen from an automobile dealership. A standoff ensued
between T.L. and South Bend Police Department Officer Alan Wiegand.
When Officer Wiegand walked toward the front of the vehicle in an alley, T.L.
pressed the accelerator. However, the vehicle was in neutral, and the officer
safely reached the driver’s side. T.L. eventually was removed from the vehicle.
Inside the vehicle, officers discovered two additional key fobs belonging to
Court of Appeals of Indiana | Memorandum Decision 19A-JV-1257 | November 26, 2019 Page 3 of 8 different vehicles. T.L. was placed in detention at the local juvenile justice
center, where he accumulated nearly forty misconduct reports in three months’
time.
[5] The State filed additional delinquency petitions against T.L. for conduct
amounting to level 6 felony escape (“Cause 24”) and level 6 felony auto theft
(“Cause 25”). T.L. admitted to the allegations in Causes 24 and 25 but denied
the allegations in Cause 426. After a factfinding hearing in Cause 426, the trial
court entered true findings for level 5 felony child exploitation and level 6
felony child pornography. The court ordered that T.L. undergo a psychosexual
evaluation. During the evaluation, he admitted to being involved in a gang and
reported that he had stolen more than fifty vehicles without being caught. He
also requested a copy of his police report so that he could write a rap song about
it. Evaluating psychologist Dr. Jeffrey Burnett found T.L. to be antisocial,
impulsive, and self-centered, and a high risk to reoffend.
[6] The trial court conducted a joint dispositional hearing for all four causes. Dr.
Burnett recommended that T.L.’s placement be restrictive. The probation
department recommended placement in the DOC based on the findings in Dr.
Burnett’s report and T.L.’s numerous misconduct reports, which included
incidents of gang promotion, threatening staff and peers, and battering a peer.
The trial court committed T.L. to the DOC. T.L. now appeals his
commitment. Additional facts will be provided as necessary.
Court of Appeals of Indiana | Memorandum Decision 19A-JV-1257 | November 26, 2019 Page 4 of 8 Discussion and Decision [7] T.L. challenges his placement in the DOC. The disposition of a juvenile
adjudicated a delinquent is a matter committed to the trial court’s discretion,
subject to the statutory considerations of the child’s welfare, community safety,
and the policy favoring the least harsh disposition. R.H. v. State, 937 N.E.2d
386, 388 (Ind. Ct. App. 2010). We review the trial court’s dispositions for an
abuse of discretion, which occurs if its decision is clearly against the logic and
effect of the facts and circumstances before it or the reasonable inferences that
may be drawn therefrom. Id.
[8] Juvenile court proceedings are civil, not criminal, in nature. J.S. v. State, 110
N.E.3d 1173, 1175 (Ind. Ct. App. 2018), trans. denied (2019). “[T]he goal of the
juvenile process is rehabilitation so that the youth will not become a criminal as
an adult.” Id. at 1175-76 (quoting R.H., 937 N.E.2d at 388). Thus, juvenile
courts have a variety of placement choices. Id. at 1176. Indiana Code Section
31-37-18-6 reads,
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; Court of Appeals of Indiana | Memorandum Decision 19A-JV-1257 | November 26, 2019 Page 5 of 8 (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.
[9] Indiana Code Section 31-37-18-9(a)(5) requires the trial court to state its reasons
for the disposition chosen. This involves the trial court’s issuance of written
findings and conclusions concerning the child’s care, treatment, rehabilitation,
or placement; parental participation in the plan; efforts made to prevent the
child’s removal from the parent; family services offered; and the court’s reasons
for its disposition. Ind. Code § 31-37-18-9(a)(1)-(5).
[10] Here, the trial court issued findings indicating its consideration of the statutory
factors and its reasons for ordering placement in the DOC. These include:
T.L.’s actions while on home placement, e.g., removing his electronic
monitoring device and committing new delinquent acts; his repeated
misconduct while detained in the juvenile justice center, which demonstrates
that lesser restrictive means of controlling his behavior have failed; and the
danger he poses to himself and others based on the serious nature of his
offenses. Appealed Order at 2-3. At the close of the dispositional hearing, the
trial court addressed T.L.’s harm to the community, his multiple offenses in the
four separate causes before it, his numerous incident reports during detention,
Court of Appeals of Indiana | Memorandum Decision 19A-JV-1257 | November 26, 2019 Page 6 of 8 the circumstances of the sexually graphic videotaping, in which “you, for your
own kicks, decided to humiliate another person,” and the fact that “you lied to
my face in the – with respect to the auto theft charge.” Tr. Vol. 2 at 90-91. The
trial court acknowledged that commitment to the DOC is harsh and that it has
been “extraordinarily difficult anytime” it has made that finding. Id. at 90.
Ultimately, however, the court did make that finding, and reasoned that T.L.
had “the fewest prospects for rehabilitation of anyone I’ve seen. And I highly
doubt that even the DOC can do anything, but it’s all I’ve got.” Id. at 91.
[11] To the extent that T.L. touts his absence of a prior record as militating toward a
less restrictive placement, we are unpersuaded, given the number and nature of
the offenses before the trial court for disposition as well as T.L.’s conduct
during the pendency of the proceedings. Like the trial court, we find
particularly troubling T.L.’s activity related to (secretly) videotaping people in
compromising, pornographic positions and posting the videos on a Facebook
chat group specifically devoted to such videos. See Tr. Vol. 2 at 57 (H.S.’s
testimony that T.L. told her he was just texting someone). T.L. was both the
creator and the distributor of the objectionable material. Moreover, he
demonstrated a lack of remorse for his delinquent conduct, bragging to Dr.
Burnett about having stolen fifty vehicles without being caught and expressing
his desire to use the details of his criminal activity as lyrics for a rap song. Lack
of juvenile record notwithstanding, less restrictive options have been tried during
the pendency of the proceedings and have failed spectacularly. Home detention
with electronic monitoring did not deter T.L., as he simply cut off the device
Court of Appeals of Indiana | Memorandum Decision 19A-JV-1257 | November 26, 2019 Page 7 of 8 and continued to commit delinquent acts. His nearly forty misconduct reports
during his three-month tenure at the juvenile justice center, which include
physically violent conduct and gang recruitment, do not engender confidence
for his future success if placed outside the DOC. In short, the logic and effect of
the facts and circumstances before the trial court support its decision to place
T.L. in the DOC, and as such, we conclude that the court acted within its
discretion. Accordingly, we affirm.
[12] Affirmed.
Baker, J., and Kirsch, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-JV-1257 | November 26, 2019 Page 8 of 8