MEMORANDUM DECISION                                                        FILED
Pursuant to Ind. Appellate Rule 65(D),                                Nov 28 2018, 8:10 am

this Memorandum Decision shall not be                                      CLERK
                                                                       Indiana Supreme Court
regarded as precedent or cited before any                                 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
Cara Schaefer Wieneke                                    Curtis T. Hill, Jr.
Wieneke Law Office, LLC                                  Attorney General of Indiana
Brooklyn, Indiana
                                                         Caroline G. Templeton
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

A.H.,                                                    November 28, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         70A01-1712-JV-2942
        v.
                                                         Appeal from the Rush Circuit
                                                         Court
State of Indiana,
                                                         The Honorable David E. Northam,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         70C01-1508-JD-94



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 70A01-1712-JV-2942 | November 28, 2018       Page 1 of 12
                                       Statement of the Case
[1]   A.H. appeals his adjudication as a delinquent child for having committed
                                                                                                 1
      criminal mischief as a Class A misdemeanor if committed by an adult. A.H.

      argues that the juvenile court erred when it modified his dispositional decree

      and placed him in the Indiana Department of Correction (“DOC”).

      Additionally, A.H. argues that his counsel was ineffective for allowing A.H. to

      admit to probation violations. Lastly, A.H. argues that the juvenile court

      abused its discretion by placing him in the DOC. We conclude that, because

      the juvenile court retained jurisdiction of A.H., it did not err in modifying his

      dispositional decree, and A.H.’s counsel was not ineffective for allowing A.H.

      to admit to probation violations. Furthermore, it was within the juvenile

      court’s discretion to commit A.H. to the DOC.


[2]   We affirm.


                                                    Issues
                 1. Whether the juvenile court erred by modifying A.H.’s
                 dispositional decree and placing him in the DOC.


                 2. Whether A.H. received ineffective assistance of counsel.


                 3. Whether the juvenile court abused its discretion when it
                 ordered A.H. committed to the DOC.




      1
          IND. CODE § 35-43-1-2.


      Court of Appeals of Indiana | Memorandum Decision 70A01-1712-JV-2942 | November 28, 2018       Page 2 of 12
                                                     Facts
[3]   On July 27, 2015, eleven-year-old A.H. and another person traveled to the

      Riverside Park Amphitheater in Rushville, Indiana. They damaged a garage

      door, stole and damaged a golf cart, and disturbed or damaged other property

      belonging to the City of Rushville. The next day, A.H. and the other person

      returned to the park, kicked in the door to the concession stand, and stole soda

      pop and potato chips. The two then pulled down a string of lights from a tent

      and broke the light bulbs. The damages from the two incidents totaled

      $1,413.92.


[4]   Following an investigation by Rushville police officers, the State filed a petition

      alleging that A.H. was a delinquent for criminal mischief, a Class A

      misdemeanor if committed by an adult; auto theft, a Level 6 felony if

      committed by an adult; and criminal trespass, a Class A misdemeanor if

      committed by an adult. At his initial hearing, held on October 8, 2015, and

      pursuant to a plea agreement, A.H. admitted to criminal mischief. The juvenile

      court conducted a dispositional hearing and adjudicated A.H. a delinquent.

      The court ordered A.H. to be placed on probation for one year, undergo a

      mental health evaluation and follow all recommendations, complete ten hours

      of community service through the Rushville Parks Department, and participate

      in the Indiana Kids Tutoring Program at the Boys and Girls Club.


[5]   On January 31, 2016, A.H. committed a new offense. He spray-painted vulgar

      words and pictures on the dugout of the Rushville Parks Department baseball

      field, causing approximately $1,000.00 worth of damage. The Rush County
      Court of Appeals of Indiana | Memorandum Decision 70A01-1712-JV-2942 | November 28, 2018   Page 3 of 12
      probation department filed a request to modify A.H.’s dispositional decree. A

      hearing was held on April 19, 2016, during which A.H. admitted to violating

      his probation. The juvenile court granted the probation department’s request,

      modified the dispositional decree, and ordered that A.H. be placed on home

      detention for thirty days and referred to a program to receive intensive home-

      based services.


[6]   On September 26, 2016, the probation department filed a second request to

      modify A.H.’s dispositional decree, alleging that A.H. had fifteen school-related

      disciplinary referrals between August 8, 2016, and September 19, 2016, was out

      past curfew, and left his home without permission on two separate occasions.

      A hearing was held on November 28, 2016, during which A.H. admitted to the

      violations. The juvenile court granted the probation department’s request for

      modification of the dispositional decree. The court ordered A.H.’s probation

      extended for six months, to April 8, 2017, and ordered A.H. to complete a

      psychological evaluation and follow all recommendations.


[7]   Following the evaluation, A.H. was diagnosed with attention-deficit

      hyperactivity disorder, unspecified depressive disorder, and conduct disorder.

      It was recommended that A.H. be placed in a residential treatment facility.

      Based on the recommendation, the trial court modified A.H.’s dispositional

      decree and ordered him placed at a residential youth and family treatment

      center.




      Court of Appeals of Indiana | Memorandum Decision 70A01-1712-JV-2942 | November 28, 2018   Page 4 of 12
[8]    At the treatment center, A.H. was provided with medication management,

       individual therapy, family therapy, independent living training, and family

       visits. He behaved well and was discharged in June 2017.


[9]    However, on September 1, 2017, the probation department filed a report

       indicating that, after A.H. was discharged from the treatment center, he

       received eight school-related disciplinary referrals that resulted in suspensions.

       The report stated that A.H. was “refusing to go to class, using inappropriate

       language toward staff and other students[,] and refusing to get on the

       appropriate bus to go home.” (App. Vol. 2 at 176). On September 12, 2017,

       the probation department filed a third request for modification of A.H.’s

       dispositional decree, citing the school-related disciplinary referrals, A.H.’s

       refusal to attend school on four separate days, curfew violations, and his failure

       to provide accurate information during a mental health assessment. The

       probation department recommended that A.H. be committed to the DOC.


[10]   At an initial hearing held on October 5, 2017, A.H. denied the allegations. A

       factfinding hearing was held on November 27, 2017, during which A.H.

       admitted to the allegations. The State and the probation department

       recommended that A.H. be committed to the DOC. A.H. asked the juvenile

       court to extend his probation and allow him to enroll in an alternative

       education program. At the conclusion of the hearing, the juvenile court found

       that the allegations were true, that the dispositional decree should be modified,

       and that it was in A.H.’s best interests to be placed in the DOC. A.H. now

       appeals.

       Court of Appeals of Indiana | Memorandum Decision 70A01-1712-JV-2942 | November 28, 2018   Page 5 of 12
                                                       Decision
[11]   On appeal, A.H. argues that (1) the juvenile court erred by modifying his

       dispositional decree and placing him in the DOC; (2) he received ineffective

       assistance of counsel; and (3) the juvenile court abused its discretion when it

       ordered him committed to the DOC. We will address each of these arguments

       in turn.


       1. Modification of Dispositional Decree

[12]   A.H. argues that the trial court erred when it granted the State’s third request to

       modify his dispositional decree and ordered him committed to the DOC based

       upon incidents that, according to A.H., occurred after his probationary period

       had run. A.H. asserts that he was no longer on probation when the alleged

       violations set forth in the third petition for modification of his dispositional

       decree occurred. A.H. contends that “[d]espite the fact that [he] admitted to

       committing the acts in the petition, the modification of his dispositional decree

       should still be reversed because the State did not prove the conduct occurred

       during the probationary period.” (A.H.’s Br. 17). The State maintains that

       A.H. was still subject to the juvenile court’s jurisdiction at the time the
                                  2
       violations occurred. We agree.




       2
         The State also argues that A.H. waived appellate review of this issue when he admitted to the allegations set
       forth in the third petition for modification of his dispositional decree. However, we decline the State’s
       invitation to resolve this matter on the basis of waiver. See Trammell v. State, 45 N.E.3d 1212, 1216-17 (Ind.
       Ct. App. 2015) (finding that defendant was under no obligation to point out to the State that it failed to prove

       Court of Appeals of Indiana | Memorandum Decision 70A01-1712-JV-2942 | November 28, 2018           Page 6 of 12
[13]   INDIANA CODE § 31-30-2-1, provides, in pertinent part:


               [T]he juvenile court’s jurisdiction over a delinquent child or a
               child in need of services and over the child’s parent, guardian, or
               custodian continues until:


                        (1) the child becomes twenty-one (21) years of age, unless
                        the court discharges the child and the child’s parent,
                        guardian, or custodian at an earlier time; or


                        (2) guardianship of the child is awarded to the department
                        of correction.


       A juvenile court that retains jurisdiction over a juvenile may modify a

       dispositional decree so long as it retains such jurisdiction. W.L. v. State, 707

       N.E.2d 812, 814 (Ind. Ct. App. 1999); see also I.C. § 31-37-22-1. Here, it is clear

       from the record that the juvenile court had not discharged then thirteen-year-old

       A.H. and his parents. Nor had the juvenile court awarded guardianship of

       A.H. to the DOC prior to the filing of the third request to modify the

       disposition decree. Therefore, the court retained jurisdiction of A.H. and the

       authority to modify A.H.’s dispositional decree and place him in the DOC. No

       error occurred here.


       2. Ineffective Assistance of Counsel




       its case and that an admission to conduct was not admission that defendant violated probation by engaging in
       the conduct).

       Court of Appeals of Indiana | Memorandum Decision 70A01-1712-JV-2942 | November 28, 2018       Page 7 of 12
[14]   A.H. also argues that he received ineffective assistance of counsel during his

       November 27, 2017 factfinding hearing. According to A.H., his counsel’s

       performance was deficient because counsel allowed A.H. to “admit to a

       probation violation for acts that occurred several months after A.H. should

       have been done with probation.” (A.H.’s Br. 19).


[15]   A.H. maintains that he has a right to counsel as provided by the Sixth

       Amendment of the United States Constitution. See Strickland v. Washington, 466

       U.S. 668 (1984). The State argues that because A.H. is not a criminal

       defendant, he is not entitled to the protections afforded by the Sixth

       Amendment, and that, instead, his right to counsel is rooted in statute and the

       right to due process.


[16]   Without deciding that, in fact, juveniles in delinquency proceedings are entitled

       to application of the same assistance of counsel standards as those applied in

       adult criminal cases, we find that counsel’s representation was not deficient.

       Under either standard set forth by the parties, A.H. was afforded effective

       assistance of counsel. The juvenile court retained jurisdiction of A.H. and the

       authority to modify A.H.’s dispositional decree. Thus, counsel did not render

       ineffective assistance by allowing A.H. to admit to the violations of his

       probation.


       3. Commitment to DOC

[17]   A.H. also contends that the juvenile court abused its discretion by committing

       him to the DOC. A juvenile court is afforded wide latitude and great flexibility
       Court of Appeals of Indiana | Memorandum Decision 70A01-1712-JV-2942 | November 28, 2018   Page 8 of 12
       in its dealings with juveniles. J.S. v. State, 881 N.E.2d 26, 28 (Ind. Ct. App.

       2008). The specific disposition of a delinquent child is within the sound

       discretion of the juvenile court, and we will reverse only if the order is clearly

       erroneous and against the logic and effect of the facts and circumstances before

       the court. Id. The court’s discretion is subject to the statutory considerations of

       the child, the safety of the community, and the policy of favoring the least harsh

       disposition. Id.


[18]   A.H. maintains that the juvenile court should not have ordered him committed

       to the DOC,


               [c]onsidering the amount of punitive-type rehabilitation that
               A.H. had already received from his misdemeanor offense, and
               considering the total lack of any attempt by the State to prove
               that wardship to the D.O.C. was the least restrictive, most family
               like setting available, or that it was the proper individualized
               treatment for A.H.


       (A.H.’s Br. 25). In support of his argument, A.H. refers to INDIANA CODE § 31-

       37-18-6, which sets forth several factors a juvenile court must consider when

       entering a dispositional decree. The section provides as follows:


               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
       Court of Appeals of Indiana | Memorandum Decision 70A01-1712-JV-2942 | November 28, 2018   Page 9 of 12
                                (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.


       I.C. § 31-37-18-6.


[19]   Without question, INDIANA CODE § 31-37-18-6 requires the juvenile court to

       select the least restrictive placement in most situations. However, the statute

       contains language which reveals that, under certain circumstances, a more

       restrictive placement might be appropriate. The statute requires placement in

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

       and the best interest of the child.” I.C. § 31-37-18-6. Thus, the statute

       recognizes that, in certain situations, the best interest of the child is better

       served by a more restrictive placement. See Madaras v. State, 425 N.E.2d 670,

       672 (Ind. Ct. App. 1981) (“[W]hile the juvenile code creates a presumption in

       favor of disposing of juvenile matters using the least severe disposition available

       to the court which will serve the needs of the case, the code explicitly

       recognizes that in some instances commitment may be in the best interests of

       the child and society in general.”) (citation omitted); see also M.R. v. State, 605

       Court of Appeals of Indiana | Memorandum Decision 70A01-1712-JV-2942 | November 28, 2018   Page 10 of 12
       N.E.2d 204, 208 (Ind. Ct. App. 1992) (noting that while commitment to the

       Indiana Boys School “should be resorted to only if less severe dispositions are

       inadequate, there are times when such commitment is in the best interests of

       the juvenile and society in general”).


[20]   Here, the record reveals that A.H. was given several chances to reform his

       behavior before the juvenile court committed him to the DOC. When A.H.

       was initially adjudicated a delinquent, on October 8, 2015, he was placed on

       probation for one year and was required to complete community service and

       participate in a tutoring program. Following a violation of probation, that

       occurred on January 31, 2016, and consisted of spray-painting vulgar words

       and pictures on a parks department dugout, the court ordered A.H. on home

       detention for thirty days and required him to participate in intensive home-

       based services. Following a second violation of probation, which included

       fifteen school-related discipline referrals, staying out past curfew, and leaving

       home without permission, A.H.’s probation was extended for six months, to

       April 8, 2017. Thereafter, on February 21, 2017, A.H.’s dispositional decree

       was modified to allow for placement at a residential treatment facility, where

       A.H. behaved well. However, shortly after being discharged from the facility in

       June 2017, A.H., experienced behavioral issues at school. He had nine

       discipline referrals; he refused to attend school on several occasions; he stayed

       out past curfew; and he failed to provide accurate information during his

       mental health assessment. At some point, A.H. was expelled from school.




       Court of Appeals of Indiana | Memorandum Decision 70A01-1712-JV-2942 | November 28, 2018   Page 11 of 12
[21]   At the factfinding hearing, held on November 27, 2017, A.H.’s probation

       officer testified as follows:


               Since [A.H. has] been on probation, he has basically received
               every other service that we can provide for him, as far as
               community based services, home detention for thirty days, he’s
               been at residential treatment for four months, he’s- we’ve tried to
               get people in the home to work with him, and tried to get him to
               understand the importance of his education and so on, but he’s
               not complying with any of those.


       (Tr. Vol. 2 at 92). She further testified that there were no other options

       available to A.H., short of placing him in the DOC, and that, due to his

       expulsion, there were no education opportunities available to him at that time.


[22]   The juvenile court determined that A.H. should be committed to the DOC.

       Under these circumstances, we cannot say that the court’s decision was an

       abuse of discretion or that it was not in A.H.’s best interests. See, e.g., J.J. v.

       State, 925 N.E.2d 796, 802 (Ind. Ct. App. 2010) (affirming commitment

       of juvenile to DOC where juvenile had been offered numerous means for

       rehabilitation but “has continued to reoffend and disrespect the rule of law and

       his fellow citizens”), trans. denied. The juvenile court did not abuse its

       discretion by ordering A.H. committed to the DOC.


[23]   Affirmed.


       Vaidik, C.J., and Barnes, Sr.J., concur.



       Court of Appeals of Indiana | Memorandum Decision 70A01-1712-JV-2942 | November 28, 2018   Page 12 of 12
