MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                                     FILED
court except for the purpose of establishing                             Dec 26 2018, 8:39 am
the defense of res judicata, collateral
                                                                              CLERK
estoppel, or the law of the case.                                         Indiana Supreme Court
                                                                             Court of Appeals
                                                                               and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Andrew K. Porter                                         Curtis T. Hill, Jr.
Feavel & Porter                                          Attorney General of Indiana
Vincennes, Indiana
                                                         Ian McLean
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

M.W.,                                                    December 26, 2018
Appellant-Respondent,                                    Court of Appeals Case No.
                                                         18A-JV-1507
        v.                                               Appeal from the Gibson Circuit
                                                         Court
State of Indiana,                                        The Honorable Jeffrey F. Meade,
Appellee-Petitioner.                                     Judge
                                                         Trial Court Cause No.
                                                         26C01-1712-JD-393



Bradford, Judge.



Court of Appeals of Indiana | Memorandum Decision 18A-JV-1507 | December 26, 2018                 Page 1 of 7
                                          Case Summary
[1]   While juvenile M.W. was on informal adjustment, police searched a vehicle he

      was driving and discovered a controlled substance, marijuana, and drug

      paraphernalia. The State filed a delinquency petition alleging that M.W.

      committed offenses that, if committed by an adult, would be Class A

      misdemeanor possession of a schedule IV controlled substance, two counts of

      Class B misdemeanor possession of marijuana, and Class C misdemeanor

      possession of paraphernalia. M.W. admitted to all allegations, and the juvenile

      court deferred final disposition to continue monitoring his behavior. During the

      deferral period, M.W. was alleged to have taken his grandmother’s vehicle and

      broken into her home. The juvenile court ordered wardship of M.W. to the

      Indiana Department of Correction (“DOC”) for an indeterminate period. M.W.

      contends, inter alia, that the juvenile court abused its discretion by placing him

      in the DOC. Because we disagree, we affirm.



                            Facts and Procedural History
[2]   In May of 2017, M.W. was placed on informal adjustment with the Gibson

      County probation department for six months as a result of being caught

      smoking marijuana with friends. While on informal adjustment, M.W. was

      found in possession of a controlled substance, marijuana, and drug

      paraphernalia by police following a traffic stop. On December 6, 2017, the State

      filed a delinquency petition alleging that M.W. committed acts that, if

      committed by an adult, would be Class A misdemeanor possession of a

      Court of Appeals of Indiana | Memorandum Decision 18A-JV-1507 | December 26, 2018   Page 2 of 7
      schedule IV controlled substance, two counts of Class B misdemeanor

      possession of marijuana (one for the May 2017 incident), Class C misdemeanor

      possession of paraphernalia, and Class C infraction improper license plate light.

      On February 15, 2018, M.W. admitted to all counts alleged in the delinquency

      petition. The juvenile court set a dispositional hearing for March 23, 2018, and

      ordered a pre-dispositional report.


[3]   On March 20, 2018, M.W.’s probation officer Deborah Bryant filed her pre-

      dispositional report, recommending that M.W. be placed on probation until his

      eighteenth birthday and that placement in the DOC might be necessary in the

      future if he violates the terms of probation. Bryant noted that M.W.’s mother

      reported that he had been attending school more frequently, staying at home,

      and respecting her rules. At the request of M.W.’s counsel, the juvenile court

      ordered that disposition of the matter be deferred until May 29, 2018, to allow

      further monitoring of M.W.’s behavior at school and home.


[4]   On April 9, 2018, the State requested that the dispositional hearing be reset for

      an earlier date due to M.W.’s alleged bad acts. On April 4, 2018, M.W.’s

      grandmother and her husband had signed a letter, which was admitted at

      M.W.’s dispositional hearing, summarizing M.W.’s alleged bad acts as follows:


              This letter is [to] inform [M.W.], the Police Dept. of Princeton,
              IN and the Probation office of the necessity to make sure
              [M.W.], or his friends, are not on, in or near the property of
              Mark Cultice and Mary Jill Wright, his grandmother.

              [address omitted]


      Court of Appeals of Indiana | Memorandum Decision 18A-JV-1507 | December 26, 2018   Page 3 of 7
        The only exception, at the request of his grandmother, is to allow
        [M.W.] to come over when invited by his grandmother while she
        is in the house and cognizant of his actions.

        [M.W.] has recently stolen his grandmother’s car, invited friends
        into our house without our knowledge or presence, consumed
        our liquor, damaged property, broken into our house, consumed
        codeine, stolen money and has no regard or acknowledgment of
        these actions even in the presence of witnesses.

        If [M.W.] is found in violation of our request, the police are to
        take action to remove him from the property and use their
        judgment in any further prosecution. We will pursue prosecution
        if the terms of this letter are not followed. The intent is not to
        harm him, but to protect our home, its contents and our peace of
        mind from his behaviors.

State’s Ex. 1. At M.W.’s dispositional hearing, his grandmother

testified that she signed the letter and that it was accurate. When asked

whether it was M.W. who had committed the bad acts at her home

while she was on vacation, she replied, “We don’t know exactly if it

was him, one of his friends, but we highly suspect.” Tr. Vol. II p. 7. She

further testified that when she confronted M.W. about it over text

messages he did not respond. Upon consideration of M.W.’s

grandmother’s letter, Bryant testified that contrary to her previous

recommendation in the pre-dispositional report, she recommended that

he be placed in the DOC. The juvenile court ordered that M.W. be

placed in the DOC because it was in his best interest to be removed




Court of Appeals of Indiana | Memorandum Decision 18A-JV-1507 | December 26, 2018   Page 4 of 7
      from his home given the allegations admitted and the inability to

      provide shelter, care, and/or supervision at the present time.



                                 Discussion and Decision
[5]   M.W. raises two issues on appeal. First, he contends that he was deprived due

      process because the State failed to give him reasonable notice when Bryant

      made a recommendation in her testimony that differed from her pre-

      dispositional report. Second, he contends that the juvenile court abused its

      discretion by placing him in the DOC.


                                 I. Pre-Dispositional Report
[6]   M.W. contends that when Bryant testified that M.W. should be placed in the

      DOC, she effectively amended the pre-dispositional report, which the State then

      failed to provide to M.W. within a reasonable time before the disposition

      hearing, as required. M.W., however, failed to raise this issue during the

      dispositional hearing. “In order to properly preserve an issue on appeal, a party

      must, at minimum, show that it gave the trial court a bona fide opportunity to

      pass upon the merits of the claim before seeking an opinion on appeal.” Cavens

      v. Zaberdac, 849 N.E.2d 526, 533 (Ind. 2006). Therefore, we conclude that

      M.W. has waived the issue for appellate review.


                                     II. DOC Commitment
[7]   M.W. also contends that the juvenile court abused its discretion by ordering

      wardship of him to the DOC for an indeterminate period.
      Court of Appeals of Indiana | Memorandum Decision 18A-JV-1507 | December 26, 2018   Page 5 of 7
              The specific disposition of a delinquent is within the juvenile
              court’s discretion, to be guided by the following considerations:
              the safety of the community, the best interests of the child, the
              least restrictive alternative, family autonomy and life, freedom of
              the child, and the freedom and participation of the parent,
              guardian, or custodian. We reverse only for an abuse of
              discretion, namely a decision that is 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.


      K.S. v. State, 849 N.E.2d 538, 544 (Ind. 2006) (internal citations and quotations

      omitted).


[8]   M.W. asserts that the juvenile court abused its discretion in failing to order a

      more rehabilitative placement for him before DOC placement. We conclude,

      however, that the juvenile court’s decision was reasonable given the facts and

      circumstances before it. First, the juvenile court attempted to provide M.W.

      with less-severe alternatives through informal adjustment and a period of

      deferred disposition. Put another way, M.W. was given more than one

      opportunity to prove that he could follow the rules, both in school and society,

      but failed each time. Moreover, the acts he committed became more egregious

      over time. He started with possession offenses, which elevated from marijuana

      to controlled substances, until finally M.W. stole his grandmother’s car, broke

      into her home causing property damage, stole her money, and consumed her

      alcohol and codeine. Finally, M.W.’s request for us to consider the pre-

      dispositional report findings, which indicate, inter alia, that he claimed to have

      stopped using drugs, was a low risk of reoffending, and attended school more

      Court of Appeals of Indiana | Memorandum Decision 18A-JV-1507 | December 26, 2018   Page 6 of 7
      regularly, is merely a request for us to reweigh the evidence, which we will not

      do. Fields v. State, 888 N.E.2d 304, 307 (Ind. Ct. App. 2008). M.W. has failed to

      establish that the juvenile court abused its discretion by ordering that he be

      placed in the DOC.


[9]   The judgment of the juvenile court is affirmed.


      Bailey, J., and Brown, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 18A-JV-1507 | December 26, 2018   Page 7 of 7
