MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jul 31 2019, 11:22 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 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.M., July 31, 2019 Appellant-Respondent, Court of Appeals Case No. 19A-JV-602 v. Appeal from the St. Joseph Probate Court State of Indiana, The Honorable Jason Cichowicz, Appellee-Petitioner Judge The Honorable Graham C. Polando, Magistrate Trial Court Cause Nos. 71J01-1506-JD-247 71J01-1608-JD-242 71J01-1609-JD-297 71J01-1810-JD-349
Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-JV-602 | July 31, 2019 Page 1 of 6 Case Summary [1] By age fifteen, T.M. had accumulated four true findings of delinquency, three
for acts that would be felonies if committed by an adult. He repeatedly violated
the terms of his placements and was the subject of several placement
modification petitions. He now appeals a modification order placing him in the
Indiana Department of Correction (“DOC”). Finding that the trial court acted
within its discretion, we affirm.
Facts and Procedural History [2] In 2015, T.M. was adjudicated delinquent for committing an act amounting to
class A misdemeanor theft if committed by an adult. He was placed on
probation. In 2016, he had another delinquency finding for an act amounting
to level 6 felony auto theft if committed by an adult. He was placed on
electronic monitoring (“EM”), and shortly thereafter, he cut the band off his
monitoring device and threw the device into a nearby river. As a result, he was
adjudicated delinquent for an act amounting to level 6 felony escape if
committed by an adult. He was placed in residential treatment at the Youth
Opportunity Center (“YOC”), from which he attempted several escapes,
sometimes in cold weather without a coat.
[3] After his release from the YOC, T.M. was returned to probation/home
placement. He volunteered at a homeless shelter but subsequently stole the
shelter’s van. Police found the stolen van outside T.M.’s mother’s home. As
they sought to apprehend T.M., he attempted to flee through a second-story
Court of Appeals of Indiana | Memorandum Decision 19A-JV-602 | July 31, 2019 Page 2 of 6 window. This incident resulted in his 2018 delinquency adjudication for an act
amounting to level 6 felony auto theft if committed by an adult. At the
dispositional hearing, the trial court also considered placement modification
petitions in T.M.’s three prior causes. The court imposed a suspended
placement in the DOC with house arrest as a condition of his probation.
[4] T.M. continued to violate the terms of his house arrest and probation, so the
probation department sought a modification of his placement from suspended
to executed. The court held an emergency modification hearing and issued an
order revoking T.M.’s probation in all four causes and executing his placement
in the DOC. T.M. now appeals. Additional facts will be provided as
necessary.
Discussion and Decision [5] T.M. asserts that the trial court abused its discretion in modifying his placement
to 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. J.S. v. State, 110 N.E.3d 1173, 1175 (Ind. Ct. App. 2018), trans.
denied (2019). We review a trial court’s disposition and modification thereof for
an abuse of discretion, which occurs if the 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.; see also K.A. v. State, 775 N.E.2d 382, 386
(Ind. Ct. App. 2002) (applying abuse of discretion standard where juvenile
challenged modification of placement to DOC following her violation of terms Court of Appeals of Indiana | Memorandum Decision 19A-JV-602 | July 31, 2019 Page 3 of 6 of suspended commitment), trans. denied. In determining whether a trial court
has abused its discretion, we neither reweigh evidence nor judge witness
credibility. J.S., 110 N.E.3d at 1175.
[6] The crux of T.M.’s argument is that the trial court modified his placement to
the harshest option when less restrictive alternatives were available. Juvenile
court proceedings are civil, not criminal, in nature. Id. “[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. v. State, 937 N.E.2d 386, 388 (Ind. Ct.
App. 2010)). Thus, juvenile courts have a variety of placement choices.
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;
(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 Court of Appeals of Indiana | Memorandum Decision 19A-JV-602 | July 31, 2019 Page 4 of 6 (5) provides a reasonable opportunity for participation by the child’s parent, guardian, or custodian.
[7] Indiana Code Section 31-37-18-9(a) 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).
[8] Here, the trial court’s findings indicate its consideration of the statutory factors
and its reasons for ordering that T.M.’s placement be modified from a
suspended to an executed placement in the DOC. For example, the findings
emphasize the reasonable efforts taken by the court and the probation
department to prevent T.M.’s removal from his home and family, the services
made available to T.M. to address his dangerous behavior, T.M.’s continual
disregard for the rules of his school/community, his home detention violations,
the threat he poses to the community, the unsuccessful attempts at less
restrictive placements, the lack of suitable relative placement, and T.M.’s best
interests. Appealed Order at 2-3. The court ordered modification to an
executed DOC placement based on the following reasons: T.M.’s failure to
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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 Jul 31 2019, 11:22 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 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.M., July 31, 2019 Appellant-Respondent, Court of Appeals Case No. 19A-JV-602 v. Appeal from the St. Joseph Probate Court State of Indiana, The Honorable Jason Cichowicz, Appellee-Petitioner Judge The Honorable Graham C. Polando, Magistrate Trial Court Cause Nos. 71J01-1506-JD-247 71J01-1608-JD-242 71J01-1609-JD-297 71J01-1810-JD-349
Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-JV-602 | July 31, 2019 Page 1 of 6 Case Summary [1] By age fifteen, T.M. had accumulated four true findings of delinquency, three
for acts that would be felonies if committed by an adult. He repeatedly violated
the terms of his placements and was the subject of several placement
modification petitions. He now appeals a modification order placing him in the
Indiana Department of Correction (“DOC”). Finding that the trial court acted
within its discretion, we affirm.
Facts and Procedural History [2] In 2015, T.M. was adjudicated delinquent for committing an act amounting to
class A misdemeanor theft if committed by an adult. He was placed on
probation. In 2016, he had another delinquency finding for an act amounting
to level 6 felony auto theft if committed by an adult. He was placed on
electronic monitoring (“EM”), and shortly thereafter, he cut the band off his
monitoring device and threw the device into a nearby river. As a result, he was
adjudicated delinquent for an act amounting to level 6 felony escape if
committed by an adult. He was placed in residential treatment at the Youth
Opportunity Center (“YOC”), from which he attempted several escapes,
sometimes in cold weather without a coat.
[3] After his release from the YOC, T.M. was returned to probation/home
placement. He volunteered at a homeless shelter but subsequently stole the
shelter’s van. Police found the stolen van outside T.M.’s mother’s home. As
they sought to apprehend T.M., he attempted to flee through a second-story
Court of Appeals of Indiana | Memorandum Decision 19A-JV-602 | July 31, 2019 Page 2 of 6 window. This incident resulted in his 2018 delinquency adjudication for an act
amounting to level 6 felony auto theft if committed by an adult. At the
dispositional hearing, the trial court also considered placement modification
petitions in T.M.’s three prior causes. The court imposed a suspended
placement in the DOC with house arrest as a condition of his probation.
[4] T.M. continued to violate the terms of his house arrest and probation, so the
probation department sought a modification of his placement from suspended
to executed. The court held an emergency modification hearing and issued an
order revoking T.M.’s probation in all four causes and executing his placement
in the DOC. T.M. now appeals. Additional facts will be provided as
necessary.
Discussion and Decision [5] T.M. asserts that the trial court abused its discretion in modifying his placement
to 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. J.S. v. State, 110 N.E.3d 1173, 1175 (Ind. Ct. App. 2018), trans.
denied (2019). We review a trial court’s disposition and modification thereof for
an abuse of discretion, which occurs if the 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.; see also K.A. v. State, 775 N.E.2d 382, 386
(Ind. Ct. App. 2002) (applying abuse of discretion standard where juvenile
challenged modification of placement to DOC following her violation of terms Court of Appeals of Indiana | Memorandum Decision 19A-JV-602 | July 31, 2019 Page 3 of 6 of suspended commitment), trans. denied. In determining whether a trial court
has abused its discretion, we neither reweigh evidence nor judge witness
credibility. J.S., 110 N.E.3d at 1175.
[6] The crux of T.M.’s argument is that the trial court modified his placement to
the harshest option when less restrictive alternatives were available. Juvenile
court proceedings are civil, not criminal, in nature. Id. “[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. v. State, 937 N.E.2d 386, 388 (Ind. Ct.
App. 2010)). Thus, juvenile courts have a variety of placement choices.
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;
(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 Court of Appeals of Indiana | Memorandum Decision 19A-JV-602 | July 31, 2019 Page 4 of 6 (5) provides a reasonable opportunity for participation by the child’s parent, guardian, or custodian.
[7] Indiana Code Section 31-37-18-9(a) 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).
[8] Here, the trial court’s findings indicate its consideration of the statutory factors
and its reasons for ordering that T.M.’s placement be modified from a
suspended to an executed placement in the DOC. For example, the findings
emphasize the reasonable efforts taken by the court and the probation
department to prevent T.M.’s removal from his home and family, the services
made available to T.M. to address his dangerous behavior, T.M.’s continual
disregard for the rules of his school/community, his home detention violations,
the threat he poses to the community, the unsuccessful attempts at less
restrictive placements, the lack of suitable relative placement, and T.M.’s best
interests. Appealed Order at 2-3. The court ordered modification to an
executed DOC placement based on the following reasons: T.M.’s failure to
abide by Court ordered terms of probation, T.M.’s history of delinquent acts
and the serious nature of his current auto theft offense as warranting placement
in a secure facility, the fact that less restrictive means of controlling T.M.’s
Court of Appeals of Indiana | Memorandum Decision 19A-JV-602 | July 31, 2019 Page 5 of 6 behavior have been investigated or tried, and the community’s right to
protection as outweighing T.M.’s right to personal freedom. Id. at 2-3.
[9] Our review of the record shows T.M. to be a serial thief whose common theme
has been to beg the court for “just one more chance” and then promise to do
better. Tr. Vol. 2 at 40. He is either unwilling or unable to keep these promises
and does not even appear to know why he steals. For example, when asked
why he stole the homeless shelter’s van, he replied, “I don’t even know. I
wasn’t even thinkin[g].” Id. at 10. When his therapist suggested journaling as a
means of combating his urges to steal, he never followed through.
[10] Moreover, the record shows T.M. to be a flight risk whose mother can no
longer handle him. When he cut off his monitoring device and threw it in the
river, his mother was billed $2000 for the damage. The apparently exasperated
woman requested in court that her son not be placed back on EM. Yet, again,
T.M. was given an opportunity to demonstrate some self-control. And again,
he failed. As the trial court aptly stated at the end of the modification hearing,
T.M.’s less restrictive placement options have been “exhausted … in every
sense of that term.” Id. at 41. The trial court acted within its discretion in
executing T.M.’s DOC placement. Accordingly, we affirm.
[11] Affirmed.
Baker, J., and Kirsch, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-JV-602 | July 31, 2019 Page 6 of 6