Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
before any court except for the
                                                            FILED
                                                          Dec 04 2012, 8:57 am
purpose of establishing the defense of
res judicata, collateral estoppel, or the                        CLERK
law of the case.                                               of the supreme court,
                                                               court of appeals and
                                                                      tax court




ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

SUSAN D. RAYL                                   GREGORY F. ZOELLER
Smith Rayl Law Office, LLC                      Attorney General of Indiana
Indianapolis, Indiana
                                                J.T. WHITEHEAD
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

S.J.,                                           )
                                                )
        Appellant-Defendant,                    )
                                                )
               vs.                              )       No. 49A05-1203-JV-147
                                                )
STATE OF INDIANA,                               )
                                                )
        Appellee-Plaintiff.                     )


                     APPEAL FROM THE MARION SUPERIOR COURT
                         The Honorable Scott Stowers, Magistrate
                            Cause No. 49D09-1111-JD-003102




                                     December 4, 2012



                MEMORANDUM DECISION - NOT FOR PUBLICATION



ROBB, Chief Judge
                                Case Summary and Issue

       Following true findings for burglary and theft, S.J. was committed to the wardship

of the Department of Correction (“DOC”) for a determinate sentence. S.J. raises one

issue for our review: whether the juvenile court abused its discretion in committing him

to the DOC when the probation department recommended placement in a facility that was

also secure but able to provide more specialized mental health treatment. Concluding S.J.

has had opportunities to modify his behavior and failed, leaving the juvenile justice

system with no viable less-restrictive alternative, and that adequate treatment for his

mental health problems will be available through the DOC, we affirm.

                              Facts and Procedural History

       On November 14, 2011, Officer Darren McGuire noticed three teenage boys

carrying a television down the street. S.J., then sixteen years old, told the officer his

name was Larry Whitaker and gave a false date of birth. Office McGuire ran all three

boys through the control operator and found no warrants. He then took the television,

which had not yet been reported stolen, and told the boys that their parents could retrieve

the television if it had not been stolen. At the time, S.J. was a runaway with an open

warrant for violating his electronic monitoring supervised release. He had been on the

run for two months. S.J. turned himself in and was arrested on November 15, 2011.

       On February 15, 2012, the juvenile court entered a true finding that S.J. had

committed the offense of burglary, a Class B felony if committed by an adult, and theft, a

Class D felony if committed by an adult.           Proceeding to disposition, the court

incorporated the probation department’s pre-dispositional report, which recommended

out-of-home placement at the UHS Midwest Center for Youth and Families, Inc.
                                            2
(“Midwest”). In its report, probation noted that it first considered a recommendation for

the DOC due to S.J.’s suspended commitment to the DOC, criminal history, and failure to

follow prior less-restrictive alternatives. However, probation relied upon a psychological

assessment report on S.J. by Dr. Aalsma to conclude that S.J. was in need of further

mental evaluation and intense treatment. Probation noted that should S.J. re-offend or

commit a violation, then there would be no option but commitment to the DOC as all

other options would have been exhausted.

        The juvenile court sentenced S.J. to 500 days in the DOC pursuant to Indiana

Code section 31-37-19-10.1 The court based its decision on S.J.’s criminal history and

the DOC’s ability to provide S.J. with adequate mental health treatment. Also, S.J.

committed the burglary and theft at issue while on suspended commitment for another

burglary committed in June 2010. When placing S.J. on that suspended commitment, the

juvenile court had specifically warned S.J. that he would commit S.J. to the DOC if S.J.

violated his commitment.

        S.J. has a history of mental health problems, including conduct disorder, substance

abuse, reading disorder, post-traumatic stress disorder (“PTSD”), and possible

schizophrenia. In his report, Dr. Aalsma recommended placement at a highly-structured

residential facility where S.J. would be closely monitored, feel relatively safe, and receive

individual, behaviorally-focused therapy to address his conduct disorder and PTSD

symptoms.         For S.J.’s PTSD symptoms in particular, Dr. Aalsma recommended

        1
            Indiana Code section 31-37-19-10 provides for a determinate commitment of a juvenile for up to two
years in the DOC if the juvenile fits certain criteria. Specifically, the section applies to delinquent children who
have committed one of the listed felonies in the provision, including burglary as a Class B felony; were at least
fourteen years old when committing the felony; and have had two unrelated prior delinquent offenses that included
acts that would be felonies if committed by an adult. S.J. meets these requirements.

                                                         3
prolonged exposure or cognitive processing therapy. At the disposition hearing, Joanna

Yeftich, the master social worker with the Marion County Public Defender Agency who

handled S.J.’s case, testified that probation recommended Midwest, the only residential

program in Indiana to offer dialectical behavioral therapy for males.        Upon cross-

examination, Ms. Yeftich agreed that the DOC also met Dr. Aalsma’s recommendation

but added that the format of the therapy differed from that at Midwest.

      S.J. also has a history of delinquent behavior. The arrest in this case was his ninth

since 2010. S.J.’s criminal history includes battery in December 2010; the June 2010

burglary; auto theft, and operating a vehicle without a license in January 2010; a runaway

charge; and multiple probation modifications. Although S.J. successfully completed

home-based therapy in November 2010, he reoffended in December 2010. Then, after a

successful visit with the Evans House in July 2011, S.J. cut off his monitor, breaking his

electronic monitoring supervised release, and failed to complete Cross-Systems Care

Coordination and substance abuse counseling. Since 2010, S.J. has failed electronic

monitoring, the Teen Rap program, formal probation, and community service work. He

was not at school on November 14, 2011, when the burglary and theft at issue occurred.

                                Discussion and Decision

                                  I. Standard of Review

      The choice of a specific disposition for a juvenile adjudicated to be a delinquent is

within the discretion of the juvenile court, subject to the statutory considerations of the

child’s welfare, the community’s safety, and the policy of favoring the least-harsh

disposition. L.L. v. State, 774 N.E.2d 554, 556 (Ind. Ct. App. 2002), trans. denied; see

also Ind. Code § 31-37-18-6. We may overturn the disposition order only if we find the
                                            4
court has abused its discretion because its conclusion and judgment are clearly against the

logic and effect of the facts and circumstances before the court, or the reasonable,

probable, and actual deductions to be drawn therefrom. L.L., 774 N.E.2d at 556.

                                II. S.J.’s Disposition Order

       S.J. argues that the juvenile court abused its discretion in committing him to the

DOC when probation recommended Midwest, a facility that was also secure but able to

provide more specialized mental health treatment. We disagree.

       Our supreme court has described the nature of the juvenile system in Indiana,

stating that:

       The nature of the juvenile process is rehabilitation and aid to the juvenile to
       direct his behavior so that he will not later become a criminal. For this
       reason the statutory scheme of dealing with minors is vastly different than
       that directed to an adult who commits a crime. Juvenile judges have a
       variety of placement choices for juveniles who have delinquency problems,
       ranging from a private home in the community, a licensed foster home, a
       local juvenile detention center, to State institutions such as the Indiana
       Boys School and Indiana Girls School. None of these commitments are
       considered sentences. . . . When a juvenile is found to be delinquent, a
       program is attempted to deter him from going further in that direction in the
       hope that he can straighten out his life before the stigma of criminal
       conviction and the resultant detriment to society is realized.

Id. at 556-57 (quoting Jordan v. State, 512 N.E.2d 407, 408-09 (Ind. 1987)).

       Indiana Code section 31-37-18-6 lists factors that a juvenile court should consider

when determining a juvenile’s placement:

       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;
                                             5
              (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.

The statute by its terms requires placement in the least restrictive setting only “[i]f

consistent with the safety of the community and the best interest of the child.” Id.; see

J.S. v. State, 881 N.E.2d 26, 29 (Ind. Ct. App. 2008). “Thus, the statute recognizes that

in certain situations the best interest of the child is better served by a more restrictive

placement.” J.S., 881 N.E.2d at 29.

       S.J. argues his history of mental health problems makes his commitment to the

DOC improper.        Specifically, S.J. relies upon the probation department’s pre-

dispositional report, Ms. Yeftich’s testimony, and Dr. Aalsma’s report to argue that he

should have been admitted to Midwest, a facility that was also secure but able to provide

more specialized mental health treatment. We disagree. As Ms. Yeftich admitted, the

DOC is able to provide S.J.’s required mental care. S.J. fails to provide authority to

support his argument that the juvenile court abused its discretion in providing adequate—

but not necessarily the most specialized—mental health treatment.

       Although we sympathize with S.J.’s argument and certainly acknowledge that he

is an individual grappling with a number of problems, we place great weight on the

juvenile court’s conclusion that “all least restrictive alternatives consistent with the safety

and well being of the community have been exhausted.” Transcript at 155. In the past

few years, S.J. has participated in multiple juvenile programs.          None have worked.

Despite numerous opportunities to reform his behavior, S.J. has continued to reoffend

and disrespect the rule of law. See J.J. v. State, 925 N.E.2d 796, 802 (Ind. Ct. App. 2010)
                                              6
(affirming DOC placement for a juvenile with mental health and substance abuse

problems who had participated in multiple juvenile programs was not an abuse of

discretion), trans. denied; cf. R.A. v. State, 936 N.E.2d 1289, 1291 (Ind. Ct. App. 2010)

(holding that DOC placement for a juvenile with no prior contact with the juvenile justice

system was an abuse of discretion).

       Moreover, we cannot agree with S.J.’s contention that placement at the DOC was

punitive. S.J. committed the burglary and theft at issue while on suspended commitment

for an earlier burglary. When placing S.J. on suspended commitment, a less restrictive

option, the juvenile court specifically warned S.J. that it would commit S.J. to the DOC if

S.J. violated his commitment. S.J. had an opportunity to modify his behavior outside the

DOC; nevertheless, he failed, committing another burglary. See K.A. v. State, 775

N.E.2d 382, 387 (Ind. Ct. App. 2002) (holding that DOC placement, in response to

juvenile’s violation of her suspended commitment, was not punitive), trans. denied; see

also L.L., 774 N.E.2d at 559 (holding that DOC placement, despite the availability of a

less-restrictive option, was not an abuse of discretion when the juvenile had been given

several opportunities to better himself and had been given several warnings of the

consequences of continuing to act improperly and still violated his probation).

                                       Conclusion

       The juvenile court’s disposition was not clearly against the logic and effect of the

facts and circumstances. S.J., quite simply, has made too many bad choices and left the

juvenile justice system with no alternative but to order that he be committed to the DOC

where adequate treatment for his mental health problems will be available. Under these


                                            7
circumstances, the juvenile court was within its discretion in committing S.J. to the DOC.

Therefore, we affirm.

      Affirmed.

BAKER, J., and BRADFORD, J., concur.




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