MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        FILED
regarded as precedent or cited before any                               Jun 12 2019, 6:11 am
court except for the purpose of establishing
the defense of res judicata, collateral                                      CLERK
                                                                         Indiana Supreme Court
                                                                            Court of Appeals
estoppel, or the law of the case.                                             and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Michelle Laux                                             Curtis T. Hill, Jr.
St. Joseph County Public Defender’s                       Attorney General of Indiana
Office
                                                          Tiffany A. McCoy
South Bend, Indiana                                       Angela Sanchez
                                                          Deputy Attorneys General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

J.R.,                                                     June 12, 2019
Appellant-Respondent,                                     Court of Appeals Case No.
                                                          18A-JV-2206
        v.                                                Appeal from the
                                                          St. Joseph Probate Court
State of Indiana,                                         The Honorable
Appellee-Petitioner.                                      James N. Fox, Judge
                                                          Trial Court Cause No.
                                                          71J01-1607-JD-210



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-JV-2206 | June 12, 2019                    Page 1 of 14
[1]   Following his admission to sexual battery,1 which would be a Level 6 felony if

      committed by an adult, J.R. appeals his placement with the Indiana

      Department of Correction (“the DOC”) and raises the following issue for our

      review: whether the juvenile court abused its discretion when it ordered his

      placement in the DOC. He asserts that the placement was not close to his

      family and home, was punitive instead of rehabilitative, and was not the least

      restrictive placement or most appropriate setting for him.


[2]   We affirm.


                                      Facts and Procedural History
[3]   On July 7, 2016, J.R., who was fifteen years old at the time, entered the home

      of his adult neighbor, C.P., unannounced and uninvited. Appellant’s App. Vol. II

      at 103. At that time, C.P.’s two young children were playing outside, and she

      was on the computer in her bedroom. Id. J.R. entered C.P.’s bedroom with his

      erect penis sticking out of his pants. Id. J.R. approached C.P. and placed his

      bare penis on her arm and rubbed her arm. Id. at 114. C.P. immediately told

      J.R. to leave and that his behavior was very inappropriate. Id. at 103. J.R.

      ignored C.P.’s command, grabbed her by both upper arms and attempted to

      force her down on the bed. Id. C.P. pushed back and was able to keep herself

      on her feet, but J.R. continued to hold her shoulders. Id. C.P. repeatedly yelled

      for J.R. to leave, but instead, he ran his hands down C.P.’s sides to her buttocks




      1
          See Ind. Code § 35-42-4-8(a)(1)(A).


      Court of Appeals of Indiana | Memorandum Decision 18A-JV-2206 | June 12, 2019   Page 2 of 14
      and squeezed with both hands. Id. While still holding onto C.P.’s arms, J.R.

      also attempted to kiss her on the neck several times. Id. Despite C.P.

      continuously telling J.R. to get out of her bedroom and house, J.R. continued to

      restrain C.P., grope her, and attempt to kiss her. Id. Before releasing C.P. and

      leaving the house, J.R. told C.P., “I’m going to eat your pussy tomorrow.” Id.

      J.R. then let C.P. go, said “I’m sorry,” and walked out the front door. Id. C.P.

      told her live-in boyfriend what had happened, and he called the police. Id. at

      106. C.P. told the responding officer that she knew J.R., that he lived three or

      four doors north, and that he had played with her children before. Id.


[4]   J.R. was arrested the same day. A detention hearing was held on July 11, 2016,

      and J.R. was detained at the St. Joseph County Juvenile Justice Center. Id. at

      16. On July 18, 2016, the State filed a delinquency petition against J.R.,

      charging him with criminal confinement and sexual battery, both of which

      would have been a Level 6 felony if committed by an adult. Id. at 21. On July

      29, 2016, the State filed an admission agreement that offered to dismiss the

      criminal confinement charge if J.R. admitted to the sexual battery charge. Id. at

      23. At the initial hearing, held that same day, J.R. admitted to sexual battery

      pursuant to the admission agreement. Id. at 48-52.


[5]   At the dispositional hearing, held on October 14, 2016, the State expressed

      concern about the seriousness of J.R.’s offense and recommended placement

      with more supervision. Id. at 56-57. The juvenile court reasoned that it was in

      J.R.’s best interest to be in the community and engage in intensive out-patient

      counseling and placed J.R. on strict and indefinite probation. Id. at 29, 61. The
      Court of Appeals of Indiana | Memorandum Decision 18A-JV-2206 | June 12, 2019   Page 3 of 14
      juvenile court also gave J.R. multiple court ordered requirements, including

      writing an apology letter to the victim, attending school regularly without any

      unexcused absences, tardies, or suspensions, participating in a prosocial

      activity, and obtaining a part-time job or completing twenty hours of

      community service. Id. at 30.


[6]   On March 1, 2017, almost five months after the dispositional hearing, a petition

      for modification was filed, and a modification hearing was held April 7, 2017.

      Id. at 9, 32-34. At that time, J.R. had not written his apology letter to the

      victim, completed any community service, or found a part-time job; he also had

      multiple issues in school resulting in three out-of-school suspensions and his

      expulsion from school. Id. at 64, 134. Specifically, J.R. received a two-day

      suspension for his involvement in a fight concerning a stolen cell phone on

      February 2, 2017. Id. at 134. J.R. was filming the altercation and could be

      heard provoking the students to fight. Id. Three days after J.R. returned to

      school from that suspension, he received another three-day suspension on

      February 21, 2017, for threatening to shoot a student. Id. When J.R. returned

      to school on February 27, 2017, he was suspended for five days with expulsion

      requested because he had twice engaged in sexual activity with a female student

      on school property in the choir dressing room. Id.


[7]   The probation department was concerned that J.R. continued to place himself

      in high risk situations and was being uncooperative and violating his probation.

      Id. at 144. The juvenile court determined that J.R. was in need of supervision,

      care, treatment, and services that were not available in the community and that

      Court of Appeals of Indiana | Memorandum Decision 18A-JV-2206 | June 12, 2019   Page 4 of 14
      it was in his best interest to remove him from the home. Id. at 32-33. The

      court ordered J.R. to be placed in Oaklawn, a residential program, to complete

      sex offense programming. Id. at 33.


[8]   Because the probation department was concerned with J.R.’s impulsivity and

      risky decision making, an examination of J.R.’s sexual history was conducted

      through a polygraph test. Id. at 146-51. During this examination, J.R.

      admitted that he became sexually active at the age of fourteen, and that, over

      the next two years, he had a sexual relationship with at least twenty different

      teen-aged females, with many instances occurring on school grounds. Id. at

      147-48. J.R. also admitted that when he was thirteen, he had his four-year-old

      cousin touch his penis and, when he was fourteen, he and his sister engaged in

      mutual fondling. Id. at 150.


[9]   In his first month at Oaklawn, J.R. struggled with his behavior and attitude,

      but, in his second month, he became more engaged in treatment. Id. at 74.

      After completing Oaklawn’s program, in April 2018, he was placed back into

      the care of his mother and was ordered to continue probation and participate

      with aftercare services through Lincoln Therapeutic Partnership (“LTP”). Id. at

      79, 163-64. After he was placed back in his mother’s care, probation stated J.R.

      became “arrogant” and did not “take his probation seriously.” Id. at 172. He

      missed several appointments, and the probation department learned that when

      he was released from Oaklawn, J.R. almost immediately began violating his

      safety plan. Id. Specifically, another juvenile on probation who was only



      Court of Appeals of Indiana | Memorandum Decision 18A-JV-2206 | June 12, 2019   Page 5 of 14
       thirteen at the time indicated that, beginning in April 2018, she and J.R.

       engaged in a sexual relationship. Id.


[10]   J.R. took another polygraph examination on July 26, 2018, and after receiving

       his results, LTP discharged him from therapy because he violated treatment

       guidelines. Id. at 84. J.R. admitted to regular pornography use, sexual activity

       with five to six teen-aged females, going to parties, sending and receiving nude

       images, videoing girls during sexual acts, using marijuana, and using social

       media. Id. at 84, 173-74. On August 14, 2018, J.R. was detained because he

       was not in compliance with probation. Id. at 41. On August 21, 2018, a

       modification hearing was held, and the probation department recommended

       that J.R. be placed in the DOC because, although J.R. had completed a year of

       residential placement and had been ordered to participate in aftercare services,

       he was uncooperative, violated his safety plan multiple times, and had an

       overall assessment score that placed him in the high-risk category to reoffend.

       Id. at 177-78.


[11]   The juvenile court determined that J.R.’s continued placement at home would

       not provide the level of structure and supervision necessary and that it was in

       J.R.’s best interest to be removed from the home. Id. at 42–43, 178. The

       juvenile court ordered J.R. to the DOC, which would be suspended if LTP was

       willing to accept J.R. back into its treatment program. Id. at 43. LTP was

       unwilling to do so because J.R. consistently violated his treatment plan. Id. at

       180. The probation department recommended placement in the DOC because

       LTP was the sole provider of sex offender specific treatment in St. Joseph

       Court of Appeals of Indiana | Memorandum Decision 18A-JV-2206 | June 12, 2019   Page 6 of 14
       County, and no other community program was offered that would meet J.R.’s

       treatment needs. Id. The juvenile court ordered J.R. to be placed in the DOC.

       Id. at 44-46. When committing J.R. to the DOC, the juvenile court found that

       “reasonable efforts were made to prevent or eliminate the need for removal”

       and that the modification was the least restrictive alternative to insure the

       child’s welfare and rehabilitation and the safety and welfare of the community.”

       Id. at 44-45. J.R. now appeals.


                                      Discussion and Decision
[12]   J.R. argues that the juvenile court abused its discretion when it ordered him to

       be placed in the DOC because such a placement was punitive instead of

       rehabilitative, especially because J.R. had no prior encounters with the juvenile

       justice system. J.R. contends that his placement in the DOC was also not the

       least restrictive and most family-like setting available and was contrary to

       Indiana Code section 31-37-18-6. He maintains that, after he completed his

       initial treatment at LTP, he should have been released from probation, but

       because he was not, he was punished for participating in consensual sex with

       other teenagers, which was not criminal behavior.


[13]   “A juvenile court is accorded ‘wide latitude’ and ‘great flexibility’ in its dealings

       with juveniles.” J.T. v. State, 111 N.E.3d 1019, 1026 (Ind. Ct. App. 2018)

       (citing J.S. v. State, 881 N.E.2d 26, 28 (Ind. Ct. App. 2008)), trans. denied. The

       choice of a specific disposition of a juvenile adjudicated a delinquent child is a

       matter within the sound discretion of the juvenile court and will only be


       Court of Appeals of Indiana | Memorandum Decision 18A-JV-2206 | June 12, 2019   Page 7 of 14
       reversed if there has been an abuse of that discretion. Id. “The juvenile court’s

       discretion in determining a disposition 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 it. Id.


[14]   The goal of the juvenile process is rehabilitation, not punishment. Id.

       “‘Accordingly, juvenile courts have a variety of placement choices for juveniles

       who have delinquency problems, none of which are considered sentences.’” Id.

       (quoting R.H. v. State, 937 N.E.2d 386, 388 (Ind. Ct. App. 2010)). Indiana

       Code section 31-37-18-6 provides that:


               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;


       Court of Appeals of Indiana | Memorandum Decision 18A-JV-2206 | June 12, 2019   Page 8 of 14
               (4) imposes the least restraint on the freedom of the child and the
               child’s parent, guardian, or custodian;


               (5) provides a reasonable opportunity for participation by the
               child’s parent, guardian, or custodian.


       Ind. Code § 31-37-18-6. “[T]he 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 (citing K.A. v. State, 775 N.E.2d 382, 387 (Ind. Ct. App. 2002),

       trans. denied). The law requires only that the disposition selected be the least

       restrictive disposition that is “consistent with the safety of the community and

       the best interest of the child.” J.T., 111 N.E.3d at 1026 (citing D.S. v. State, 829

       N.E.2d 1081, 1085 (Ind. Ct. App. 2005)).


[15]   At the time of the disposition, J.R. was seventeen years old, and his case had

       been ongoing since he was fifteen years old. Although he did not have any

       prior juvenile adjudications, this case involved a sexual battery, where he

       entered his neighbor’s house unannounced, exposed his penis, and forcibly

       restrained the neighbor while squeezing her buttocks and attempting to kiss her.

       The State recommended placement with more supervision because of the

       severity of the offense, but the juvenile court, reasoning that it was in J.R.’s best

       interest to be in the community and to engage in intensive out-patient

       counseling, placed J.R. on strict and indefinite probation. Appellant’s App. Vol.

       II at 29, 56-57, 61. The juvenile court also ordered J.R. to write the victim an

       apology letter, attend school regularly without any unexcused absences, tardies,



       Court of Appeals of Indiana | Memorandum Decision 18A-JV-2206 | June 12, 2019   Page 9 of 14
       or suspensions, participate in a prosocial activity, and obtain a part-time job or

       complete twenty hours of community service. Id. at 30.


[16]   Nine months later, J.R. had violated multiple terms of his probation. He failed

       to write the apology letter, to complete community service, and to find a part-

       time job. He had multiple issues in school resulting in three out-of-school

       suspensions and a request for expulsion. Id. at 64, 134. He had been suspended

       for provoking students to fight, threatening to shoot another student, and

       engaging in sexual activity while on school property. Id. at 64, 134. At that

       time, the juvenile court ordered J.R. to Oaklawn for a residential treatment

       program, finding that it was in his best interest to be removed from the home

       because “[c]ontinued placement at home would not provide the level of

       structure and supervision necessary to prevent future delinquent behaviors

       which are harmful to [J.R.] and others.” Id. at 35.


[17]   After some initial struggle with his behavior, J.R. was able to complete the

       program at Oaklawn and was released back to his mother’s care and ordered to

       continue on probation. Id. at 79-80. J.R. asserts that, at that time, he should

       have been released from probation because the case had been ongoing for

       almost two years. However, the juvenile court determined that it was in his

       best interest to monitor him after he finished the treatment program at Oaklawn

       to determine if J.R. could apply the progress he made while in treatment to his

       life at home. The juvenile court stated, “you’re going to have a lot more

       freedom…with that freedom comes responsibility… if you comply with all the

       terms we have, they’re talking about closing the case, but that’s going to require
       Court of Appeals of Indiana | Memorandum Decision 18A-JV-2206 | June 12, 2019   Page 10 of 14
       you to make good decisions.” Id. at 79-80. This was a reasonable course of

       action by the juvenile court and clearly aimed at ensuring that the goal of

       rehabilitation had been reached.


[18]   Instead of applying what he had learned at Oaklawn, J.R. violated probation

       and his safety plan multiple times and was ultimately discharged from LTP for

       violating treatment guidelines. Id. at 84. Within about three months from his

       release from Oaklawn, J.R. admitted to using social media, going to parties,

       using marijuana, regular pornography use, sexual activity with five to six same-

       aged females, sending and receiving nude images, and videotaping females

       during sexual acts, all of which violated probation and his safety plan. Id. at 84,

       173-74. Additionally, another juvenile on probation indicated that she and J.R.

       were in a sexual relationship that had begun in April 2018. Id. at 172. This

       indicated that upon release from Oaklawn J.R. immediately began violating his

       safety plan, and that despite his treatment focusing on the age of consent, he

       was sexually involved with a thirteen-year-old female when he was seventeen

       years old. Id. at 172. When committing J.R. to the DOC, the juvenile court

       found that “reasonable efforts were made to prevent or eliminate the need for

       removal” and that the modification was the least restrictive alternative to insure

       the child’s welfare and rehabilitation and the safety and welfare of the

       community.” Id. at 44-45.


[19]   J.R. maintains that the juvenile court’s determination that he be placed in the

       DOC was punitive rather than rehabilitative, citing to E.H. v. State, 764 N.E.2d

       681 (Ind. Ct. App. 2002), trans. denied. In that case, E.H. was adjudicated a

       Court of Appeals of Indiana | Memorandum Decision 18A-JV-2206 | June 12, 2019   Page 11 of 14
       delinquent for the theft of a necklace, and this court vacated the juvenile court’s

       dispositional order placing E.H. in the DOC because “the one-year

       commitment imposed by the juvenile court conflicts with rehabilitative goals of

       the juvenile justice system.” Id. at 685-86. This court noted that E.H. had

       recently been placed in a stable foster home where he was making significant

       improvement with his adjustment issues and was enrolled in home-based

       counseling and in a program assisting with reunification with his family and

       was making significant progress in both programs. Id. at 686. This court also

       stated that there was “no evidence . . . that E.H. is a threat to the community.”

       Id. This court concluded that in light of E.H.’s recent progress and given the

       nature of his offense, a less restrictive placement would be more appropriate for

       E.H. Id.


[20]   J.R. contends that, like in E.H., his placement in the DOC should be found to

       conflict with the rehabilitative goals of the juvenile system, especially in light of

       the fact that J.R. has no prior encounters with the juvenile justice system.

       However, E.H. is distinguishable from this case. First, J.R.’s offense, the sexual

       battery of a neighbor, was far more serious than E.H.’s offense, which was the

       theft of a necklace. Second, and more significant, unlike E.H., who was

       showing signs of improvement and was not deemed to be a threat to the

       community, here, J.R. had not shown improvement and was deemed to be a

       threat to the community and himself because of his lack of improvement and

       behavior.




       Court of Appeals of Indiana | Memorandum Decision 18A-JV-2206 | June 12, 2019   Page 12 of 14
[21]   J.R. asserts that the juvenile court failed to consider an alternative placement

       when it placed him in the DOC. Just because a less restrictive alternative

       exists, however, does not mean that the juvenile court must follow it. D.C. v.

       State, 935 N.E.2d 290, 292 (Ind. Ct. App. 2010) (“[T]he availability of a less

       restrictive alternative does not mean the juvenile court was required to order

       that placement.”), aff’d on trans., 958 N.E.2d 757 (Ind. 2011). Indiana Code

       section 31-37-18-6 provides that the trial court is only required to consider the

       least restrictive placement if that placement comports with the safety needs of

       the community and the child’s best interests. See J.B. v. State, 849 N.E.2d 714,

       717-18 (Ind. Ct. App. 2006) (concluding that the trial court did not abuse its

       discretion when it committed the juvenile to the DOC because the less-

       restrictive placement suggested by him would have fallen short of meeting the

       community’s safety needs), trans. denied.


[22]   In mentioning the seriousness of J.R.’s underlying offense, his continuous risky

       behavior, uncooperativeness with probation, and violation of his safety plan,

       the juvenile court considered his danger to the safety of the community. We

       have previously found that the seriousness of an offense and the likelihood of

       re-offense allow for commitment to the DOC. See, e.g., D.C., 935 N.E.2d at 293

       (“Given the serious nature of D.C.’s offense and the likelihood that he will

       reoffend, this is clearly a situation in which commitment to a less restrictive

       environment than DOC is not in the best interest of D.C. or of the

       community.”). Additionally, the juvenile court’s finding that J.R. had

       completed a year of residential treatment, which had failed to curb his risky


       Court of Appeals of Indiana | Memorandum Decision 18A-JV-2206 | June 12, 2019   Page 13 of 14
       behavior, showed that such services were no longer in J.R.’s best interest.

       Although J.R. asserts that he did nothing criminal and was being punished for

       typical teenager behavior, the evidence showed that, while on probation, J.R.

       did commit potentially illegal acts, and the juvenile court properly considered

       these acts when determining the best placement.


[23]   We conclude that it was reasonable for the juvenile court to find that the

       services and opportunities offered to J.R. had not been successful and that he

       posed a danger to both himself and to the community. Because of the serious

       nature of J.R.’s underlying offense, his failure to engage in and benefit from

       past services offered, and the likelihood that he will reoffend, we find that the

       juvenile court was within its discretion to conclude that commitment to a less

       restrictive environment than the DOC was not in the best interest of J.R. or

       consistent with the safety of the community. The juvenile court did not abuse

       its discretion when it ordered J.R.’s placement in the DOC.


[24]   Affirmed.


       Vaidik, C.J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-JV-2206 | June 12, 2019   Page 14 of 14
