Opinion
23A-JV-2923
08-19-2024
S.S., Appellant-Respondent v. State of Indiana, Appellee-Petitioner
ATTORNEY FOR APPELLANT Gary M. Selig Indianapolis, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Kathy Bradley 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Dearborn Circuit Court The Honorable Frank Aaron Negangard, Judge Trial Court Cause Nos. 15C01-2308-JD-82, 15C01-2209-JD-81, 15C01-2009-JD-55
ATTORNEY FOR APPELLANT Gary M. Selig Indianapolis, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Kathy Bradley Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
ALTICE, CHIEF JUDGE.
Case Summary
[¶1] Following S.S.'s admission to Class A misdemeanor intimidation if committed by an adult, which was his fourth delinquency adjudication, the juvenile court awarded wardship of S.S. to the Indiana Department of Correction (DOC). S.S. appeals and asserts that the juvenile court's placement was an abuse of discretion.
S.S. also claimed on appeal that placement at the DOC, which was not of a defined length, was the equivalent of an inappropriate sentence and asked us to revise it under Ind. Appellate Rule 7(B). However, as acknowledged by S.S. in his Reply Brief, Rule 7(B) does not apply to juvenile dispositions. See T.K. v. State, 899 N.E.2d 686, 687-88 (Ind.Ct.App. 2009).
[¶2] We affirm.
Facts &Procedural History
[¶3] S.S. was born in March 2007, and his involvement with the juvenile system began when he was twelve. This is a consolidated appeal of the following three cause numbers related to S.S.: 15C01-2009-JD-55 (JD-55); 15C01-2209-JD-81 (JD-81); and 15C01-2308-JD-82 (JD-82).
JD-55
[¶4] In September 2020, the State filed a delinquency petition in JD-55 alleging that S.S. was a delinquent child for committing acts that would constitute Class B misdemeanor battery, Class B misdemeanor criminal mischief, and Class A misdemeanor resisting law enforcement if committed by an adult. In October 2020, S.S. admitted he committed battery, and the court adjudicated him a delinquent, ordering a suspended commitment to the Dearborn County Juvenile Center (DCJC) and placing S.S. in Lutherwood Residential Treatment Center (Lutherwood) and on probation. Following a review hearing, the court found that S.S. had completed his treatment program at Lutherwood and placed him in a step-down program at Open Arms Christian Ministries (Open Arms) beginning July 29, 2021.
The record reflects that, at that time, S.S. was on a suspended commitment under cause number 15C01-1903-JD-23 for battery if committed by an adult.
[¶5] About a week or so later, on August 9, 2021, the State filed a petition to modify the dispositional decree in JD-55, alleging that S.S. violated the rules of Open Arms by being aggressive with staff and police and that he was a danger to himself and others at the facility. Following a hearing, the court determined that, for S.S.'s protection and that of the community, he needed to be detained because "[d]espite services, [S.S.]'s misbehavior continued, putting himself and others at risk of injury." Appendix Vol. II at 176.
[¶6] In September 2021, S.S. was placed in residential treatment at Oaklawn Psychiatric Center. While there, he participated in treatment for, among other things, aggression, agitation, outbursts, and self-harm, which were associated with past trauma. By August 24, 2022, S.S. had made progress in all areas, and the court ordered his release to a step-down Intensive Probation Program at the Youth Encouragement Services Home (The YES Home).
[¶7] A few weeks later, on September 13, 2022, the State filed a petition to modify disposition in JD-55 based on having received notification from the probation department that, on September 1, S.S. committed new offenses and, beginning September 9, was being detained in the DCJC.
JD-81
[¶8] On September 15, the State filed a delinquency petition under JD-81 stemming from those new offenses. The State alleged that S.S. had committed the following delinquent offenses: Class A misdemeanor attempted intimidation, Class B misdemeanor disorderly conduct, Class A misdemeanor intimidation, Class A misdemeanor resisting law enforcement, two counts of Level 6 felony battery on a public safety official, and Class B misdemeanor battery by bodily waste. The court ordered S.S. to remain detained at the DCJC pending a factfinding hearing.
[¶9] On September 28, S.S. admitted that he committed resisting law enforcement and battery against a public safety official if committed by an adult, and the juvenile court adjudicated S.S. delinquent in JD-81. The court awarded temporary wardship to the Logansport Juvenile Correction Facility for a diagnostic evaluation.
[¶10] The evaluation report indicated S.S. continued to need trauma-based treatment, and a referral was made for admission to the juvenile state hospital. In December 2022, the court issued a dispositional order in JD-81, imposing a suspended commitment to the DOC and placing S.S. at the DCJC for ninety days, pending acceptance to the state hospital. In early January 2023, S.S. was transported to the Neuro Diagnostic Institute (NDI) until successful completion of the treatment program or further order of the court. Following a review hearing in May 2023, the court found that S.S. had completed his treatment at NDI and ordered his release on June 1 to the custody of his parents and placed him back into the Intensive Probation Program, with his commitments to the DOC in JD-55 and JD-81 to remain suspended.
[¶11] About six weeks later, on July 11, S.S. was detained in the DCJC. On July 17, 2023, the State filed a petition for modification of dispositional decree in JD-55 and JD-81, alleging that the probation department received notice that S.S. committed the delinquent act of Class A misdemeanor intimidation. On July 18, the court issued an order, pending a subsequent fact-finding hearing, placing S.S. on a "daily release program" beginning on July 19, under which he would be released from the DCJC to his parents' custody from 8:00 a.m. to 5:00 p.m. each day. Appendix Vol. IV at 2; Appendix Vol. III at 47, 57.
JD-82
[¶12] About one month later, the State filed a petition under JD-82, alleging, as amended, that S.S. had committed the delinquent act of Class A misdemeanor intimidation when he became unruly at the DCJC on July 29 and threatened an employee. At the September 5 fact-finding hearing, S.S. admitted the JD-82 intimidation allegation and admitted the allegations in the July 17, 2023 petition for modification of dispositional decree in JD-55 and JD-81. The court adjudicated S.S. a delinquent child and ordered that he remain at the DCJC pending dispositional hearing.
[¶13] On October 23, 2023, the court held a combined hearing in JD-82, JD-55, and JD-81. At the hearing, S.S. called his probation officer (PO), Abby Stecht, to testify, and she confirmed that S.S.'s high school was not willing to allow him to return at that time, nor were his parents. PO Stecht testified that, although the Indiana Department of Child Services (DCS) had recently approved S.S. for a Qualified Residential Treatment Program (QRTP), specifically a step-down group home facility, she had contacted DCS to discuss any such possibilities, and none were identified as available to S.S. Specifically, PO Stecht explained that S.S. had been removed from The YES Home and Open Arms for incidents there and that she contacted Lutherwood but they denied S.S. "due to his aggression and lengthy history." Transcript Vol. 3 at 96. PO Stecht acknowledged that if a placement cannot be found in Indiana, the probation department "at times" will consider out-of-state treatment facilities - noting that she had inquired about one in Cincinnati for S.S. - but explained that she was concerned about placing S.S. out-of-state and did not further pursue that option. Id. S.S.'s mother told the court that, while "we love him and he is going to be our son no matter what," S.S. could not come home because of his aggressive behaviors and need for resources that they could not provide. Id. at 98.
[¶14] Counsel for S.S. argued that, because DCS was in favor of a group home or step-down facility, other residential options, including out-of-state, should be considered before a DOC placement. However, counsel was unable to provide the court with any specific locations.
[¶15] That day, the court issued a written dispositional order under JD-82, JD-81, and JD-55, finding that S.S. had committed the delinquent act of Class A misdemeanor intimidation and granting wardship of S.S. to the DOC "for housing in any correctional facility for children." Appendix Vol. III at 83. In making it determination, the court extensively detailed all the previous efforts that had been made to prevent the need for removal of S.S., which included counseling services, casework services, acute placements, residential placements, and step-down programs. It then further explained its reasons for its decision:
Community resources have been exhausted that can adequately address the safety concerns for both [S.S.] and the community, and the DOC can be an effective rehabilitative technique that [he] cannot receive while in the community.
[S.S.]'s behavior is dangerous to himself and the community and therefore requires the most restrictive placement available to the Court.
Placement at the DOC is in [S.S.]'s best interest because it will give [him] the opportunity for more intensive rehabilitation in a secure setting.Id. at 83. S.S. now appeals.
Discussion &Decision
[¶16] S.S. asserts that the juvenile court abused its discretion in awarding wardship of him to the DOC. The choice of the specific disposition of a juvenile adjudicated a delinquent child will only be reversed if the juvenile court abuses its discretion. M.C. v. State, 134 N.E.3d 453, 458 (Ind.Ct.App. 2019), trans. denied. The juvenile court's discretion 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 the court or the reasonable, probable, and actual inferences that can be drawn therefrom. R.G. v. State, 212 N.E.3d 720, 723 (Ind.Ct.App. 2023). The juvenile court is accorded wide latitude and great flexibility in fashioning dispositions for delinquents. Id.
[¶17] Ind. Code § 31-37-18-6 sets forth several factors a juvenile court must consider when entering a dispositional decree, providing:
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.
[¶18] S.S. contends that the trial court abused its discretion in granting wardship to the DOC as that was not the least restrictive placement. Specifically, he argues that he "was approved for a [QTRP] by [DCS]" and "there was a possibility that [he] could have the option to be placed [in] a group home or a step-down facility." Appellant's Brief at 7.
[¶19] "Without question, [I.C. § 31-37-18-6] requires the juvenile court to select the least restrictive placement in most situations; however, the 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, 28-29 (Ind.Ct.App. 2008). That is, the statute provides for placement in the least restrictive setting "[i]f consistent with the safety of the community and the best interest of the child." I.C. § 31-37-18-6. Thus, the statute recognizes that, in certain situations, the best interest of the child is better served by a more restrictive placement. Id.
[¶20] Here, the evidence establishes that a multitude of less-restrictive rehabilitative efforts failed, unfortunately, to produce sustained change in S.S.'s behavior. In fall 2020, the court placed S.S. in Lutherwood residential treatment, and from there, he was placed in a step-down program at Open Arms. About two weeks later, he was aggressive with staff and police, and placement was modified to Oaklawn Psychiatric Center, where he stayed for about one year. Within ten days of being released to The YES Home step-down program, S.S. threatened peers and security officers, resisted officers, and spat on a school staff member. S.S. admitted to committing two of the alleged offenses, and, pursuant to an evaluation at Logansport, he was placed at NDI for treatment, where he remained for six months, until his release to his parents and an intensive probation program. Less than six weeks later, S.S. was back in a detention center on an allegation of intimidation but released on a daily home release program. About ten days later, while in the detention center, he threatened a staff member, resulting in another delinquency petition and adjudication.
[¶21] While S.S. would make progress and be released from residential treatment to a step-down facility or to his parents, incidents of aggression and physical violence would recur, causing what the court described as a "cycle" of detention and delinquency petitions. Transcript Vol. 3 at 100. Finding that S.S. "has made it clear that he cannot and will not follow conditions of Probation despite the services that have been provided," the juvenile court concluded that placement at the DOC was in S.S.'s best interest "as it will give [him] the opportunity for more intensive rehabilitation in a secure setting." Id. at 100-01. The juvenile court did not abuse its discretion in granting wardship of S.S. to the DOC. See C.C. v. State, 831 N.E.2d 215, 218-19 (Ind.Ct.App. 2005) (observing that a juvenile's repeated involvement with the juvenile justice system and repeated failures at rehabilitation efforts, coupled with the failure to alter behavior despite several placements by the court were appropriate considerations for a grant of wardship to the DOC).
[¶22] In seeking relief, S.S. also asserts that the juvenile court "ordered that he be sent to Logansport" but he "has been incarcerated at Pendleton . . . as reflected in the Notice of Appeal." Id. at 9. We recognize that, at the hearing, the court noted a desire to send S.S. to Logansport "which has significant mental health resources," and, in its written order, the court "recommend[ed]" that S.S. remain at the DCJC "pending transport the Logansport Correctional Facility." Appendix Vol. IV at 137; Transcript Vol. 3 at 99. However, the written order also expressly awarded wardship of S.S. "to the [DOC] for housing in any correctional facility for children." Appendix Vol. IV at 137 (emphasis added). Furthermore, while S.S. states that, as of the filing of his appeal, he was being housed at the Pendleton facility, the record is not clear whether S.S. was, in fact, sent initially to Logansport. Indeed, the only evidence in the record on the matter is an Order to Transport dated October 24, 2023, the day after the hearing, ordering that S.S. be transported from the DCJC to Logansport on October 25. S.S. has not established that any relief is warranted here, or even permitted generally, stemming from specific DOC housing assignments.
[¶23] Judgment affirmed.
Bailey, J. and Mathias, J., concur.