MEMORANDUM DECISION
                                                                             FILED
Pursuant to Ind. Appellate Rule 65(D),                                   Apr 06 2016, 9:40 am

this Memorandum Decision shall not be                                        CLERK
regarded as precedent or cited before any                                Indiana Supreme Court
                                                                            Court of Appeals
                                                                              and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Nancy A. McCaslin                                         Gregory F. Zoeller
McCaslin & McCaslin                                       Attorney General of Indiana
Elkhart, Indiana
                                                          Katherine Modesitt Cooper
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In re T.D.H.,                                             April 6, 2016
Appellant-Respondent,                                     Court of Appeals Case No.
                                                          20A03-1509-JV-1467
        v.                                                Appeal from the Elkhart Circuit
                                                          Court
State of Indiana,                                         The Honorable Terry C.
Appellee-Petitioner                                       Shewmaker, Judge

                                                          The Honorable Deborah A.
                                                          Domine, Magistrate
                                                          Trial Court Cause No.
                                                          20C01-1504-JD-138



Crone, Judge.



Court of Appeals of Indiana | Memorandum Decision 20A03-1509-JV-1467 | April 6, 2016             Page 1 of 7
                                              Case Summary
[1]   T.D.H. was adjudicated a delinquent for committing an act that would be class

      C felony child molesting if committed by an adult. The juvenile court ordered

      wardship of T.D.H. to be with the Indiana Department of Correction (“DOC”).

      T.D.H. now appeals. The sole issue presented for our review is whether the

      juvenile court abused its discretion in placing T.D.H. in the DOC. Finding no

      abuse of discretion, we affirm.


                                  Facts and Procedural History
[2]   In April 2015, the State alleged T.D.H. to be a delinquent child for committing

      an act that would be class B felony child molesting if committed by an adult.

      Five-year-old N.C. disclosed to her mother that sixteen-year-old T.D.H.

      “touched her with his penis all over her body and then put it inside of her.”

      Appellant’s App. at 10. According to N.C., T.D.H. hurt the “private” part of

      her body, the part covered by underclothes. Tr. at 177. T.D.H. touched N.C.’s

      private part “a lot of times” and he put his mouth on her private area at least

      once. Id. at 178. N.C. told her mother that T.D.H. had “sex” with her two

      times. Id. at 190. She explained that “sex is when a guy gets on top of a girl

      and says that it’s okay.” Id. at 191. N.C. said that T.D.H. “was pushing on her

      stomach really hard to where she couldn’t yell for help, or she couldn’t cry, she

      couldn’t do anything.” Id. N.C. told a forensic examiner that T.D.H.’s penis

      touched her “skin” and went “inside [her] body.” Appellant’s App. at 10.




      Court of Appeals of Indiana | Memorandum Decision 20A03-1509-JV-1467 | April 6, 2016   Page 2 of 7
[3]   After filing the delinquency petition, the State filed a waiver of juvenile court

      jurisdiction alleging that T.D.H. had three prior referrals and two prior

      adjudications for committing acts that would constitute class B and class C

      felony child molesting if committed by an adult. The waiver also alleged that

      T.D.H. had “been offered numerous services through the Juvenile Justice

      System which he has failed to take advantage of” thereby demonstrating that

      “he is beyond rehabilitation in the Juvenile Justice System.” Id. at 36-37. The

      prior services offered to T.D.H. included a psychosexual assessment, no contact

      orders, placement in the juvenile detention center, probation supervision,

      residential treatment, sex offender treatment, in-home family therapy,

      individual and group therapy, and implementation of a protection plan.

      Following a hearing, the juvenile court denied the waiver. A fact finding

      hearing on the delinquency petition was held on July 13, 2015. At its

      conclusion, the juvenile court entered a true finding that T.D.H. committed an

      act that would be class C felony child molesting if committed by an adult.


[4]   The juvenile court began a dispositional hearing on July 14, 2015. During that

      hearing, the probation department representative recommended that the

      juvenile court award wardship of T.D.H. to the DOC. The representative

      explained that placement in the DOC was in T.D.H.’s best interest because he

      presented a risk to himself and the community, and he could continue to

      receive sexual maladaptive treatment in the DOC. The State agreed with the

      probation department’s recommendation but requested that an updated

      psychosexual assessment of T.D.H. be performed. Counsel for T.D.H. had no


      Court of Appeals of Indiana | Memorandum Decision 20A03-1509-JV-1467 | April 6, 2016   Page 3 of 7
      objection to obtaining an updated assessment, but argued that T.D.H. should be

      placed in a residential facility rather than the DOC. The trial court ordered

      that T.D.H. receive an updated psychosexual assessment and continued the

      dispositional hearing until the assessment could be completed.


[5]   The juvenile court convened again for a dispositional hearing on August 25,

      2015. A representative from the probation department reported that the results

      of the psychosexual assessment indicated that T.D.H. was “at high risk for

      historical sexual assaults and failure to respond to consequences and

      interventions.” Tr. at 276. The assessment further revealed that T.D.H. was

      “risk-prohibitive for community-based placement.” Appellant’s App. at 62.

      T.D.H. testified at the disposition hearing and denied that he ever molested

      N.C. He testified that he was lying during the psychosexual assessment when

      he admitted to molesting N.C. T.D.H.’s parents also spoke. They each implied

      that they did not believe that T.D.H. molested N.C.


[6]   At the conclusion of the hearing, the court stated:

              I think DOC is a good recommendation based upon all of those
              individuals who are saying that that’s necessary now and based
              on the fact that all I’m hearing, and all I’ve ever heard from
              parents are excuses. I think [T.D.H.] needs to get away from
              those excuses and seriously be enmeshed in treatment and get it
              right this time around, because dad says, he wants his son to be
              successful in life, and we all do. And reoffending again after
              treatment is not successful. Never reoffending again is the
              objective and the goal we all have and DOC is not giving up on
              him, DOC is simply a more intense level of treatment within the
              juvenile justice system, which he is staying in because the waiver

      Court of Appeals of Indiana | Memorandum Decision 20A03-1509-JV-1467 | April 6, 2016   Page 4 of 7
                 was denied, but that does not negate the fact he needs significant
                 treatment and DOC will provide that. I’m making him a ward of
                 DOC.


      Tr. at 309-10. The court then entered a detailed written dispositional order

      awarding wardship of T.D.H. to the DOC for placement in a correctional

      facility for children. This appeal ensued.


                                            Discussion and Decision
[7]   The juvenile court is given “wide latitude and great flexibility” in determining

      the specific disposition for a child adjudicated a delinquent. D.A. v. State, 967

      N.E.2d 59, 65 (Ind. Ct. App. 2012). 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 favoring the least harsh disposition. See Ind. Code §

      31-37-18-6. 1 A disposition will not be reversed absent a showing of an abuse of

      discretion, which occurs when the juvenile court’s order is clearly against the



      1
          This section provides:

                 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.
      Ind. Code § 31-37-18-6.

      Court of Appeals of Indiana | Memorandum Decision 20A03-1509-JV-1467 | April 6, 2016                     Page 5 of 7
      logic and effect of the facts and circumstances before the court or the reasonable

      inferences that can be drawn therefrom. R.H. v. State, 937 N.E.2d 386, 388

      (Ind. Ct. App. 2010).


[8]   T.D.H. asserts that the juvenile court abused its discretion in ordering him

      placed in the DOC because a less restrictive option, namely residential

      treatment, was available. However, we remind T.D.H. that placement in the

      least restrictive setting is required only “[i]f consistent with the safety of the

      community and the best interest of the child.” Ind. Code § 31-37-18-6. Indeed,

      this Court has repeatedly “recognized that ‘in certain situations the best interest

      of the child is served by a more restrictive placement.’” R.H., 937 N.E.2d at

      391


[9]   Here, T.D.H.’s placement in the DOC is justified by the heinous nature of the

      facts underlying his current adjudication as well as his demonstrated pattern of

      criminal and violent sexual conduct. Significantly, T.D.H.’s prior delinquency

      history is also for child molesting. One offense involved him forcefully

      sodomizing his eleven-year-old cousin, while the other offense involved him

      molesting his seven-year-old sister and threatening her with violence if she told

      anyone. Clearly the prior residential treatment he received following those

      offenses neither served to rehabilitate him nor to deter him from committing the

      same offense against five-year-old N.C. T.D.H.’s assertion on appeal that the

      results of the psychosexual assessment were “subjective,” that he was

      “amenable to treatment,” and that there were “other options available locally,”

      are simply requests for us to reweigh the evidence which we may not do.

      Court of Appeals of Indiana | Memorandum Decision 20A03-1509-JV-1467 | April 6, 2016   Page 6 of 7
       Appellant’s Br. at 21. The juvenile court did not abuse its discretion when it

       placed T.D.H. in the DOC. The juvenile court’s order is affirmed.


[10]   Affirmed.


       Najam, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A03-1509-JV-1467 | April 6, 2016   Page 7 of 7
