Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                         Oct 18 2013, 5:40 am
regarded as precedent or cited before
any 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:

CARA SCHAEFER WIENEKE                              GREGORY F. ZOELLER
Special Asst. to the State Public Defender         Attorney General of Indiana
Wieneke Law Office, LLC
Plainfield, Indiana                                JOSEPH Y. HO
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana




                               IN THE
                     COURT OF APPEALS OF INDIANA

J.M.,                                              )
                                                   )
        Appellant-Respondent,                      )
                                                   )
               vs.                                 )       No. 52A02-1304-JV-361
                                                   )
STATE OF INDIANA,                                  )
                                                   )
        Appellee-Petitioner.                       )


                      APPEAL FROM THE MIAMI SUPERIOR COURT
                          The Honorable Daniel C. Banina, Judge
                              Cause No. 52D02-1210-JD-44



                                        October 18, 2013


                MEMORANDUM DECISION - NOT FOR PUBLICATION
BRADFORD, Judge

                                   CASE SUMMARY

       Appellant-Respondent J.M. appeals from the juvenile court’s order placing him

with the Department of Correction (“DOC”) after he admitted to theft from a Burger

King restaurant. J.M. argues that the DOC placement is an abuse of the court’s discretion

because it is not the least restrictive and most appropriate setting as contemplated by

Indiana Code section 31-37-18-6. Appellee-Petitioner the State of Indiana argues that the

DOC placement is in J.M.’s best interest and, therefore, need not be the least restrictive

or most appropriate setting. We agree with the State. Finding J.M. to have persistently

exhibited aggressive, self-destructive, and criminal behavior to the point that all suitable

facilities have rejected him for admission to their programs, we conclude that the juvenile

court did not abuse its discretion in placing J.M. with the DOC. We affirm.

                       FACTS AND PROCEDURAL HISTORY

       At all times relevant to this matter, J.M. had been diagnosed with bipolar disorder

and attention deficit hyperactivity disorder, for which he was prescribed an ever-changing

combination of medications. At certain times, however, J.M. went un-medicated because

his medications had expired or run out. An additional diagnosis of oppositional defiant

disorder was made during the proceedings below.

       At approximately 3:00 a.m. on September 25, 2012, fourteen-year-old J.M.

entered a Burger King restaurant after hours, attempted to prepare some food, and

consumed several beverages. Burger King employees reported the incident later that day,

and police were able to identify J.M. from the restaurant’s surveillance video. J.M. was
apprehended on September 26, 2012, and detained in secure custody at the Robert J.

Kinsey Youth Center (“the Youth Center”).               The State filed a delinquency petition

alleging J.M. committed: Count I, burglary, a Class C felony if committed by an adult;

and Count II, theft, a Class D felony if committed by an adult. J.M. ultimately entered an

admission to Count II, and the State dismissed Count I.

       On September 26, 2012, the juvenile court held an emergency detention hearing,

during which J.M.’s probation1 officer, Mandy Miller, testified that “[J.M.] is a danger to

himself or others.” Tr. p. 6. Officer Miller recommended that J.M. remain detained at

the Youth Center because he had violated probation, his juvenile history was extensive,

and prior placements had been unsuccessful. J.M.’s father, R.M. (“Father”), also testified

at the hearing. Father explained that J.M. had behaved well while living at home and

during treatment at Machiana Behavioral Healthcare (“Machiana”) but that a new

treatment provider had changed his medications. Since then, Father opined, J.M. had

been in trouble constantly. Father recommended that J.M. be placed on home detention

so that he could return to Machiana for treatment. The juvenile court ordered J.M.

detained in secure custody at the Youth Center.

       In October of 2012, J.M. was transferred from the Youth Center to a less

restrictive facility, Family Services Society (“FSS”), for a psychiatric evaluation. While

at FSS, J.M. did not follow staff instructions, threw several temper tantrums, and engaged

in sexually inappropriate conduct. At a November 8, 2012 detention hearing, Officer


       1
          Earlier in 2012, J.M. was separately found delinquent for committing the offenses of battery,
theft, and runaway.

                                                  3
Miller testified that J.M. had behaved better with the more restrictive placement at the

Youth Center. Father also testified at the hearing and attributed J.M.’s declining behavior

to his lack of medication. The court ordered that J.M. be returned to secure custody at the

Youth Center.

       On December 12, 2012, the trial court held a dispositional hearing. At the hearing,

Officer Miller testified as follows regarding J.M.’s behavior at the Youth Center:

       It’s been horrific. He’s been in constant trouble at Kinsey. He’s been
       locked down numerous times. He’s battered someone while he’s been at
       Kinsey. He’s disrespectful to staff. He’s disrespectful to peers. He’s been
       removed from class on a regular basis. Uh, I think they’ve locked him
       down six times since he’s been there.

Tr. p. 37. Officer Miller also testified that, because of J.M.’s aggressive behavior,

White’s Residential and Family Services (“White’s”) was the only suitable placement

that would accept him.     When questioned about the possibility of placing J.M. at

Machiana, Officer Miller testified that it was unsuitable because J.M. needs a behavioral

modification program that Machiana does not provide.         When questioned about the

possibility of placing J.M. on home detention, Officer Miller expressed concerns with

J.M.’s history of running away and his aggressive behavior. The juvenile court ordered

J.M. placed at White’s and under the supervision of the Miami County Probation

Department (“MPCD”).

       On February 4, 2012, the MCPD filed a verified petition for modification of

dispositional decree, requesting that J.M. be removed from White’s because of his failure

to follow program rules. The juvenile court held a detention hearing that same day, at

which Officer Miller testified that J.M. had left White’s without permission, stolen

                                            4
things, been in multiple fights, and possessed banned substances. On one occasion, after

being confronted about his misbehavior, J.M. returned to his room and started a fire with

a toaster. During his forty-seven days at White’s, J.M. spent twenty-one days in the

disciplinary unit and was involved in at least twenty-three incidents. The juvenile court

ordered J.M. returned to secure custody at the Youth Center.

       On March 13, 2013, the juvenile court held a dispositional hearing, during which

Officer Miller described J.M.’s continued misbehavior at the Youth Center. Officer

Miller testified that J.M. threatened to assault peers and staff, urinated on his lunch tray,

and flooded his room with toilet water. Officer Miller further testified that she had

attempted to find alternate placements for J.M. and had referred him to numerous

facilities. But the only facility to accept J.M. was the Lexington Academy, a placement

J.M. adamantly opposed. At the hearing, Father again argued that J.M.’s behavior had

been appropriate when he was properly medicated, which only occurred during his

treatment at Machiana. Father requested that J.M. be placed on home detention so that he

could return there.

       When questioned about a Machiana placement, Officer Miller testified that the

facility did not accept J.M.’s type of cases. With regard to home detention, Officer

Miller opined:

       [J.M.] struggles, has struggled in residential placements, he’s struggled in
       secure detention, he’s struggle in shelter care. He’s struggled previously
       prior to those placements at home, at his father’s home. Uh, at this point I
       don’t feel like home detention is beneficial. In-home detention doesn’t
       offer any sort of long lasting deterrent. It’s basically just a way to confine
       somebody to their home.


                                             5
Tr. p. 140. Officer Miller further testified that she saw no “viable alternative” except for

placement with the DOC. Tr. p. 140.

       On April 18, 2013, the juvenile court issued its dispositional order, in which it

found, among other things, that home detention “would not provide the structure and care

that [J.M.] needs to redirect his poor behavior” and, therefore, “would be contrary to the

welfare of the child.” Appellant’s App. p. 185. The trial court ordered J.M. placed with

the DOC.

                            DISCUSSION AND DECISION

       J.M. argues that the juvenile court abused its discretion in placing him with the

DOC. “[T]he juvenile court is accorded wide latitude and great flexibility in its dealings

with juveniles[,]” and as such, “the choice of the specific disposition of a juvenile

adjudicated a delinquent child … will only be reversed if there has been an abuse of that

discretion.”   J.S. v. State, 881 N.E.2d 26, 28 (Ind. Ct. App. 2008). “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.” Id.

       “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. Indiana Code section 31-37-18-6 controls here and 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

                                             6
                     (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.

J.M. claims that the DOC placement is neither the least restrictive nor the most

appropriate setting available because J.M. exhibited his best behavior while living at

home. This claim is misguided.

       Indiana Code section 31-37-18-6 “recognizes that in certain situations the best

interest of the child is better served by a more restrictive placement.” K.A. v. State, 775

N.E.2d 382, 387 (Ind. Ct. App. 2002). “[T]here are times when commitment to a suitable

public institution is in the best interest of the juvenile and of society.” D.S. v. State, 829

N.E.2d 1081, 1085 (Ind. Ct. App. 2005) (quotation omitted). Here, the juvenile court

determined that the DOC placement and not home detention was in J.M.’s best interest.

This determination is supported by the record. Since the initiation of this matter, J.M. has

been detained in facilities with varying degrees of restrictiveness and has struggled in all

of them. J.M. has continued to exhibit aggressive, self-destructive, and criminal behavior

to the point that all but one facility have rejected him for admission to their programs. In

light of J.M.’s “horrific” and persistent misbehavior, we hold that the juvenile court did

not abuse its discretion in placing J.M. with the DOC.

       The judgment of the juvenile court is affirmed.


BAILEY, J., and MAY, J., concur.

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