Opinion
23A-JV-2302
06-04-2024
D.M.S., Appellant-Respondent v. State of Indiana, Appellee-Petitioner
ATTORNEY FOR APPELLANT Cory A. Spreen Fort Wayne, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Daylon L. Welliver Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Kosciusko Superior Court The Honorable Karin A. McGrath, Judge Trial Court Cause No. 43D01-2204-JD-91
ATTORNEY FOR APPELLANT
Cory A. Spreen Fort Wayne, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita Attorney General of Indiana
Daylon L. Welliver Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
FOLEY, JUDGE
[¶1] D.M.S. appeals the juvenile court's order awarding his wardship to the Indiana Department of Correction ("the DOC") following a detention review hearing. D.M.S. raises the following restated issue for our review: whether the juvenile court abused its discretion when it ordered his wardship to the DOC on the basis that no viable alternative placement existed at the time of the hearing. Finding no abuse of discretion, we affirm.
Facts and Procedural History
[¶2] D.M.S. was born on November 12, 2008. D.M.S. lived with his mother along with his younger half-sister ("sister"), his mother's boyfriend, and the boyfriend's son ("step-brother"). While exiting school for dismissal on March 11, 2022, D.M.S. used his open hand to strike the left side of another student's face, causing the student to sustain an injury around his left ear; consequently, D.M.S. was suspended from school.
D.M.S.'s biological father is not involved in his life.
[¶3] On March 23, 2022, then-thirteen-year-old D.M.S. ran away after a physical altercation with both his sister and step-brother. D.M.S.'s mother contacted the police, and when the police arrived, she informed them that D.M.S. had battered his sister and step-brother and damaged an interior door by kicking it. The police began looking for D.M.S. but stopped when D.M.S.'s mother called and informed them that D.M.S. had called her from an unknown phone number. D.M.S.'s mother provided the phone number to the police who later made contact with D.M.S.'s grandmother, and she informed them that D.M.S. was at her house. The police told D.M.S.'s grandmother that they were en route to pick up D.M.S. from her house. The police then picked up D.M.S. and returned him to his mother's home.
[¶4] On April 11, 2022, the State filed a delinquency petition alleging that D.M.S. committed one count of battery, a Class A misdemeanor if committed by an adult, and one count of criminal mischief, a Class B misdemeanor if committed by an adult. The State also alleged that D.M.S. left home without reasonable cause and without the permission of his parent, guardian, or custodian. On June 2, 2022, D.M.S. entered an admission to all three allegations, and the juvenile court held a dispositional hearing. On July 7, 2022, the juvenile court issued a dispositional order placing D.M.S. on juvenile probation with electronic home monitoring until he turned eighteen, unless sooner discharged. On August 11, 2022, a review hearing was held, and the juvenile court issued an order releasing D.M.S. from electronic home monitoring but continuing him on probation.
[¶5] On September 27, 2022, someone from D.M.S.'s school informed his mother that D.M.S. had sexual intercourse with a female who was believed to now be pregnant. When D.M.S.'s mother confronted D.M.S. regarding this information, D.M.S. threatened to leave the house, threw a ball against a sliding glass door, and stomped on his mother's car. D.M.S.'s mother called the police and requested that the incident be documented and forwarded to juvenile probation. On September 28, 2022, D.M.S. was suspended from school after he threw his iPad on the floor, yelled profanities at his teacher, and refused to obey his teacher's instructions. On September 29, 2022, a detention hearing was held, and the juvenile court issued an order placing D.M.S. back on home detention/electronic monitoring with additional terms and conditions. On October 11, 2022, the juvenile court ordered family centered treatment "having been advised that [D.M.S.] and his family continue[d] to have ongoing issues[.]" Appellant's App. Vol. II p. 170.
[¶6] On November 10, 2022, the juvenile probation department ("probation department") filed a modification report recommending that D.M.S. "submit to a complete diagnostic assessment at the [DOC]." Id. at 175. The following reasons for modification were provided:
On September 27, 2022, [D.M.S.] committed the acts of Disorderly Conduct ....
On October 4, 2022, [D.M.S.] committed the acts of Intimidation and Battery ....
On October 5, 2022, [D.M.S.] committed the act of Leaving Home Without Permission ....
On October 7, 2022, [D.M.S.] committed the act of Leaving Home Without Permission ....
On October 21, 2022, [D.M.S.] committed the act of Battery ....
On October 22, 2022, [D.M.S.] committed the act of Leaving Home Without Permission ....
On October 22, 2022, [D.M.S.] committed the act of Escape ....
On October 23, 2022, [D.M.S.] committed the act of Leaving Home Without Permission ....
On October 24, 2022, [D.M.S.] committed the act of Leaving Home Without Permission ....
On October 30, 2022, [D.M.S.] attempted suicide and was hospitalized ....Id. at 171.
[¶7] The probation department also attached police reports with detailed accounts for some of the reasons for modification such as D.M.S. threatening his mother's boyfriend with a knife, D.M.S. throwing his sister over a couch, D.M.S. tackling and wrestling another juvenile after the juvenile said no to the tackling and wrestling, and D.M.S. cutting off his ankle monitor. A modification hearing was held, and on November 16, 2022, the juvenile court found that D.M.S. had "not performed well under supervision rules imposed by th[e] court ...." Appellant's App. Vol. IV p. 3. The juvenile court further found that:
. . . reasonable efforts were made to prevent the child's removal from the child's parent(s) by placing [D.M.S.] on formal supervision [on] July 7, 2022 and placing [D.M.S.] on electronic home monitoring [on] September 30, 2022, and he has failed to
abide and comply with rules of supervision/electronic home monitoring as set forth by the [juvenile court] on those dates.
. . . reasonable efforts were made by the probation department to prevent or eliminate the need for removal of the child.Id.
[¶8] Consequently, the juvenile court temporarily awarded D.M.S.'s wardship to the DOC from November 16, 2022, to December 8, 2022, for the purpose of obtaining a diagnostic evaluation. During the evaluation period, D.M.S.: (1) assaulted a sleeping peer; (2) was reported for making insulting, disrespectful, or profane remarks, gestures, or acts to or about someone; (3) assaulted a peer during chapel; (4) was reported again for making insulting, disrespectful, or profane remarks, gestures, or acts to or about someone; (5) failed to follow the facility's guidelines and rules; (6) assaulted a peer; and (7) incited others by making statements regarding their mothers. D.M.S. reported that he smoked tobacco "daily," ingested marijuana and consumed alcohol "weekly," and used acid "monthly." Id. at 27. D.M.S. also reported that he had been suspended from school about ten times due to fighting. As a result of the evaluation, family counseling and home-based services were recommended because D.M.S. needed treatment that focused "both on family issues and . . . [his] personality issues." Id. at 28.
[¶9] On January 5, 2023, a modification hearing was held, and the juvenile court ordered D.M.S. to "continue in [f]amily [c]entered [t]reatment at home; comply with medication requirements and contact therapist any hour of the day when necessary." Id. at 100. On January 18, 2023, it was reported that D.M.S. punched the floor, asked "what would happen if he killed someone," and punched the brick walls outside his mother's house after an argument arose between D.M.S. and his sister regarding whose turn it was to wash the dishes. Id. at 104. On February 2, 2023, a review hearing was held, and the juvenile court removed D.M.S. from electronic monitoring "having heard evidence, statements of counsel[,] and recommendations of the [p]robation [d]epartment." Id. at 117. On March 21, 2023, the probation department filed a modification report, recommending D.M.S. be placed at the Youth Opportunity Center ("YOC") to complete the PROMISE program. The following reasons for modification were provided:
On February 8, 2023, [D.M.S.] committed the act of criminal mischief ....
On February 16. 2023, [D.M.S.] committed the act of intimidation ....
On February 16, 2023, [D.M.S.] was self-harming and verbalizing suicidal ideations ....
[D.M.S.] continues to be a threat to himself and others while attending [school] ....
[D.M.S.] was terminated from his employment on March 12, 2023. He gave friends 50% off of their meals ....
[D.M.S.] has left the home without permission on several occasions, the most recent being March 20, 2023.Id. at 119.
[¶10] Also on March 21, 2023, before school started, D.M.S. was involved in a physical altercation with another student where D.M.S. "used his body to shove against the student." Id. at 223. Later that day, the police were called after D.M.S. broke the television remote and engaged in a physical altercation with both his mother and his mother's boyfriend after his mother asked D.M.S. to stop being rude to his sister. On March 26, 2023, D.M.S.'s mother called the police after D.M.S. cut his arm with an aluminum can and held a knife to his throat. On March 28, 2023, the juvenile court held a modification hearing and ordered that D.M.S. be placed at the YOC.
[¶11] On August 14, 2023, a therapist at the YOC requested that D.M.S. be removed from their program due to "the level of unsafe behaviors and complex nature of [D.M.S.'s] treatment needs." Id. at 233. While at the YOC, D.M.S.: (1) swallowed items that were not meant to be ingested; (2) ran away on multiple occasions; (3) attempted suicide by trying to tie things around his neck; (4) punched walls; (4) threatened, pushed, and punched staff; and (5) physically assaulted others in the program. The YOC therapist made the following recommendation:
[D.M.S. should] be placed in another locked-secure facility that can address his needs. If possible, [D.M.S.] should be placed in a trauma-focused facility that can accommodate medical needs on
site. Additionally, [D.M.S.'s] behaviors have continued to pose a threat to his peers, the program milieu, and his own safety.
[D.M.S.] will need a facility that has extensive resources to manage his unsafe behaviors.Id.
[¶12] On August 16, 2023, a detention review hearing was held. The probation officer recommended that D.M.S. be placed in the DOC. The probation officer noted that she contacted eight different facilities in an attempt "to find a placement" for D.M.S., but none of the facilities would take him. Tr. Vol. 2 p. 6. The probation officer stated that she did not know "where else" to place D.M.S. Id. D.M.S.'s attorney stated that he did "not have a viable alternative to argue for" and that he was "very confident that [D.M.S.] can [go to the DOC] . . . complete the program and . . . still learn the skills that he needs . . . [and that the] DOC would offer him services too." Id. at 8. The juvenile court issued an amended order placing D.M.S. in the DOC. D.M.S. now appeals.
Discussion and Decision
[¶13] D.M.S. argues the juvenile court abused its discretion when it ordered him committed to the DOC when less restrictive alternatives would have allowed him to get the help and treatment he needs. A juvenile court is given "wide latitude" and "great flexibility" in its dealings with juveniles. J.T. v. State, 111 N.E.3d 1019, 1026 (Ind.Ct.App. 2018), trans. denied. "[T]he 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 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 system is rehabilitation rather than punishment. R.H. v. State, 937 N.E.2d 386, 388 (Ind.Ct.App. 2010). Indiana Code section 31-3718-6 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;
(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.
[¶15] "[T]he statute contains language that reveals that a more restrictive placement might be appropriate under certain circumstances." J.S. v. State, 881 N.E.2d 26, 29 (Ind.Ct.App. 2008). 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." D.S. v. State, 829 N.E.2d 1081, 1085 (Ind.Ct.App. 2005).
[¶16] D.M.S. concedes that modification of the juvenile court's dispositional order was justified given his "struggle[s] to maintain compliance with his supervision." Appellant's Br. p. 16. However, D.M.S. claims that the juvenile court abused its discretion by following the probation officer's recommendation to place him in the DOC "due to lack of other options at the present time." Id. at 18. D.M.S. contends that the juvenile court placed him in the DOC by default instead of delaying issuance of its amended order until an alternative placement that "better fit[s] the needs and suggestions of [the YOC] therapist" was available for D.M.S. Id. Although D.M.S. admits that such a placement was "speculative[,]" he still argues that the possibilities "could have given the [juvenile court] other less restrictive options than an order committing [him] to the [DOC] (because there simply were not any other options to consider)." Id. at 19. We disagree.
[¶17] The record reveals that eight different facilities were sought for D.M.S.'s placement, but those facilities would not accept D.M.S. Consequently, the probation officer recommended that D.M.S. be placed in the DOC, which the court did. D.M.S. asks us to reverse the juvenile court's decision based upon speculative grounds. However, the statute's only requirement is that a least restrictive placement be "consistent with the safety of the community and the best interest of the child." D.S., 829 N.E.2d at 1085. Even if we were to entertain D.M.S.'s argument pertaining to what the juvenile court could have done-such as waiting a period of time until a viable alternative was available-there are circumstances, such as here, where "commitment to a suitable public institution is in the 'best interest' of the juvenile and of society." Id. (quoting S.C. v. State, 779 N.E.2d 937, 940 (Ind.Ct.App. 2002)).
[¶18] The progression in D.M.S.'s behavior while remaining in the least restrictive settings demonstrates his failure to make positive change despite the ample opportunities afforded to him by the juvenile court. Even in the most restrictive setting to date-the YOC-D.M.S.'s troubling and violent behavior continued, ultimately leading to his removal from the YOC. In light of D.M.S.'s escalating behavioral history, repeated behaviors related to self-harm, and the failure of the less restrictive measures to rehabilitate him, the juvenile court did not abuse its discretion when it ordered that D.M.S. be placed in the DOC. See M.H. v. State, 199 N.E.3d 1240, 1249 (Ind.Ct.App. 2022) (concluding that the juvenile court did not abuse its discretion in ordering the juvenile to be a ward of the DOC when numerous less-restrictive services had not modified the juvenile's behavior).
[¶19] Affirmed.
Riley, J., Brown, J., concur.