MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                           FILED
regarded as precedent or cited before any
                                                                           Nov 27 2019, 9:08 am
court except for the purpose of establishing
the defense of res judicata, collateral                                         CLERK
                                                                            Indiana Supreme Court
estoppel, or the law of the case.                                              Court of Appeals
                                                                                 and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Katherine N. Worman                                      Curtis T. Hill, Jr.
Evansville, Indiana                                      Attorney General of Indiana
                                                         Marjorie Lawyer-Smith
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Delinquency                         November 27, 2019
of:                                                      Court of Appeals Case No.
                                                         19A-JV-1173
N.S.,
                                                         Appeal from the Vanderburgh
Appellant,                                               Superior Court
        v.                                               The Honorable Brett J. Niemeier,
                                                         Judge
State of Indiana,                                        The Honorable Renee A.
                                                         Ferguson, Magistrate
Appellee.
                                                         Trial Court Cause No.
                                                         82D04-1904-JD-758



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-JV-1173 | November 27, 2019                   Page 1 of 6
[1]   N.S. appeals the juvenile court’s dispositional order committing him to the

      Indiana Department of Correction (the “DOC”). We affirm.

                                       Facts and Procedural History

[2]   In April 2019, the State alleged that N.S., who was born in May 2004, was a

      delinquent child for having committed criminal trespass as a class A

      misdemeanor if committed by an adult. At the initial hearing, N.S. admitted to

      the allegation and that he had been in a house and did not have permission to

      be there. N.S.’s probation officer filed a preliminary inquiry report which

      included the text of a police report stating that, on April 5, 2019, a detective

      responded to a report of fresh graffiti 1 and discovered seven individuals,

      including N.S., inside what appeared to be an abandoned house, and N.S. was

      disrespectful and hesitant to identify himself. The probation officer’s report

      indicated that N.S.’s brother was one of the co-respondents and that N.S.’s

      juvenile history included delinquent adjudications for criminal mischief, theft,

      and criminal trespass for which he was ordered to complete ten hours of

      community service and four months of probation and cooperate with home-

      based services; an adjudication for escape for running away from his mother’s

      house during a home pass from Hillcrest Washington Youth Home; a referral

      for theft; a referral for leaving home without permission and false informing;

      and an adjudication for escape for which he was detained at the Youth Care




      1
        The report states that the graffiti consisted of “Lowd” and “Loosers Club.” Appellant’s Appendix Volume
      II at 17.

      Court of Appeals of Indiana | Memorandum Decision 19A-JV-1173 | November 27, 2019              Page 2 of 6
      Center and later transferred to residential placement at White’s Residential and

      Family Services (“White’s”) where he completed the program on February 11,

      2019. The report further stated that N.S.’s father is incarcerated for child

      molesting, where N.S.’s sister was the victim, with an earliest release date of

      October 2, 2021.


[3]   According to the probation officer’s report, N.S.’s mother indicated that N.S.

      leaves home even when she instructs him not to do so, has no respect for

      authority figures, has a history of entering abandoned houses, is uncontrollable,

      is a ringleader, and is a bad influence on other kids. It stated that N.S. is not

      enrolled in school and, after returning home after placement at White’s, refused

      to attend the alternative school and demanded traditional or online school. It

      indicated that in a prior intake N.S. reported that he was struck by a car when

      he was three years old and walks with a limp, that White’s referred him to a

      physical therapist, and that his mother reported that he refused to attend those

      appointments unless scheduled when he was not busy. The report stated that

      N.S. was diagnosed with oppositional defiant disorder, impulse disorder, and

      substance abuse and that his actions pose a danger to himself and others.


[4]   In May 2019, the court held a dispositional hearing at which N.S.’s counsel

      requested placement at the Youth Care Center or White’s. N.S.’s probation

      officer stated that N.S. was at White’s for six months and completed all of the

      programming, he was home for only a month and a half before committing the

      new offense, she had instructed N.S. and his mother how to become involved

      with Community Partners if they were having issues, online school through

      Court of Appeals of Indiana | Memorandum Decision 19A-JV-1173 | November 27, 2019   Page 3 of 6
      White’s was not an option as his mother does not have home internet, and N.S.

      refused to attend the alternative school or participate in any other services. She

      also indicated that N.S. was familiar with the Youth Care Center, she did not

      feel that it was much of a consequence for his actions or that he was learning

      anything from his behaviors, he has two prior escapes, and his history

      warranted commitment to the DOC.


[5]   N.S. testified that he would have attended a physical therapy appointment if his

      mother had scheduled it, that he would attend any school starting the next year,

      and that he did not think it would benefit him to start at an alternative school

      halfway through a semester. The court found that, given his history and the

      rehabilitative efforts attempted through various settings, it was in N.S.’s best

      interest to be placed at the DOC.


[6]   The court issued a dispositional order finding the facts in the pre-dispositional

      report were true and accurate, incorporating the report into its findings, and

      finding that N.S. is beyond the control of the parent, there does not exist any

      viable options for his care and treatment in or outside of the community, and it

      is in the best interests of N.S. and the community that he receive DOC services

      because he had previously received less restrictive alternatives. The order

      provided that N.S. has already had the following opportunities or services: two

      placements at Hillcrest Washington Youth Home from which he absconded

      both times; placement at White’s; secure detention; probation services;

      Department of Child Services; and in-home therapy and mentor services. The

      court awarded wardship to the DOC for housing in a facility for children.

      Court of Appeals of Indiana | Memorandum Decision 19A-JV-1173 | November 27, 2019   Page 4 of 6
                                                  Discussion

[7]   N.S. asserts that the juvenile court erred in committing him to the DOC rather

      than a less restrictive alternative. He argues the court failed to consider the

      circumstances in his life and that none of his prior adjudications were for

      violent offenses. The State argues the court did not abuse its discretion and

      N.S. has exhibited a significant lack of understanding regarding the seriousness

      of his conduct, was not compliant with services, and showed no respect for

      authority or interest in cooperating with services.


[8]   The juvenile court is given wide latitude and great flexibility in determining the

      disposition of a delinquent child. D.A. v. State, 967 N.E.2d 59, 65 (Ind. Ct.

      App. 2012). However, its discretion is circumscribed by Ind. Code § 31-37-18-

      6, which provides that, “[i]f consistent with the safety of the community and the

      best interest of the child,” the juvenile court shall enter a dispositional decree

      that is “in the least restrictive (most family like) and most appropriate setting

      available” and “close to the parents’ home, consistent with the best interest and

      special needs of the child”; least interferes with family autonomy; is least

      disruptive of family life; imposes the least restraint on the freedom of the child

      and the child’s parent, guardian, or custodian; and provides a reasonable

      opportunity for participation by the child’s parent, guardian, or custodian.

      Under the statute, placement in the least restrictive and most appropriate setting

      available applies only “[i]f consistent with the safety of the community and the

      best interest of the child.” J.D. v. State, 859 N.E.2d 341, 346 (Ind. 2007) (citing



      Court of Appeals of Indiana | Memorandum Decision 19A-JV-1173 | November 27, 2019   Page 5 of 6
       Ind. Code § 31-37-18-6). We review the juvenile court’s disposition for an

       abuse of discretion. R.H. v. State, 937 N.E.2d 386, 388 (Ind. Ct. App. 2010).


[9]    The juvenile court heard testimony from N.S., his mother, and his probation

       officer, heard evidence regarding his behavior and placement history,

       considered the parties’ arguments, and incorporated the probation officer’s

       report. Based upon the record, and in light of the court’s findings and N.S.’s

       delinquent behavior and failure to adequately respond to prior attempts at

       rehabilitation, we conclude that the court’s ordered placement is consistent with

       his best interest and the safety of the community and find no abuse of

       discretion. See D.E. v. State, 962 N.E.2d 94, 97 (Ind. Ct. App. 2011) (holding

       the juvenile court did not abuse its discretion in placing D.E. in a DOC facility

       where earlier attempts to rehabilitate his behavior were unsuccessful).


[10]   For the foregoing reasons, we affirm the juvenile court.


[11]   Affirmed.


       Altice, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-JV-1173 | November 27, 2019   Page 6 of 6
