      MEMORANDUM DECISION
                                                                                     FILED
      Pursuant to Ind. Appellate Rule 65(D), this                                Apr 30 2018, 8:57 am
      Memorandum Decision shall not be regarded as
                                                                                     CLERK
      precedent or cited before any court except for the                         Indiana Supreme Court
                                                                                    Court of Appeals
      purpose of establishing the defense of res judicata,                            and Tax Court
      collateral estoppel, or the law of the case.



      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Cynthia P. Smith                                          Curtis T. Hill, Jr.
      Law Office of Cynthia P. Smith                            Attorney General of Indiana
      Lafayette, Indiana
                                                                Ian McLean
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana


                                                   IN THE
          COURT OF APPEALS OF INDIANA

      S.W.,                                                     April 30, 2018

      Appellant-Respondent,                                     Court of Appeals Case No.
                                                                79A05-1712-JV-2915
              v.                                                Appeal from the Tippecanoe
                                                                Superior Court.
                                                                The Honorable Faith A. Graham,
      State of Indiana,                                         Judge.
      Appellee-Petitioner.                                      Trial Court Cause No.
                                                                79D03-1610-JD-206




      Shepard, Senior Judge

[1]   S.W. appeals the juvenile court’s modification of a dispositional order, in which

      the court terminated his probation and sent him to the Indiana Department of

      Correction. We affirm.




      Court of Appeals of Indiana | Memorandum Decision 79A05-1712-JV-2915 | April 30, 2018              Page 1 of 6
[2]   In October 2016, the State filed a petition alleging sixteen-year-old S.W. to be a

      delinquent child for acts that, if committed by an adult, would have amounted

      to child exploitation, a Level 5 felony, and possession of child pornography, a

      Level 6 felony. S.W. had taken nude pictures of his fifteen-year-old then-

      girlfriend and later shared them with a fellow student.


[3]   In December 2016, the juvenile court issued a true finding as to the act of child

      exploitation. The court committed S.W. to the Department of Correction but

      suspended the commitment and placed him on supervised probation. Among

      other terms, S.W. was required to complete a sexually maladaptive behavior

      treatment program, submit to polygraph examinations, refrain from possessing

      or consuming illegal substances, and refrain from possessing pornography.


[4]   On August 21, 2017, S.W. submitted to a polygraph examination and failed.

      He admitted at the end of the examination that he had consumed marijuana

      and Xanax while on probation. On August 28, 2017, the State filed a motion to

      modify the court’s dispositional decree, requesting a hearing. During a

      subsequent hearing, S.W. admitted to violating the terms of his probation.


[5]   In November 2017, S.W. submitted to another polygraph examination and

      passed, but he also made several disclosures. He admitted to the examiner that

      he had continued to consume marijuana and Xanax. S.W. also admitted he

      had exchanged nude photographs with his underage girlfriend. The State

      provided this information to the juvenile court during a modification hearing.




      Court of Appeals of Indiana | Memorandum Decision 79A05-1712-JV-2915 | April 30, 2018   Page 2 of 6
      The court modified its dispositional decree by granting wardship of S.W. to the

      DOC. This appeal followed.


[6]   S.W. first challenges the use of his polygraph test results and statements to his

      case manager in the modification proceeding. By statute, a juvenile’s

      statements to an evaluator may be admitted as evidence against the juvenile in
                                                                                                               1
      proceedings to modify a dispositional decree. Ind. Code § 31-37-8-4.5 (2007).

      Indiana Code section 31-32-2-2.5 (2007) contains similar language. S.W.

      argues Indiana Code section 31-37-8-4.5 violates his Fifth Amendment privilege

      against self-incrimination.


[7]   S.W. concedes he did not present his constitutional claim to the juvenile court.

      Setting aside issues of waiver and fundamental error, we conclude the

      admission of S.W.’s statements did not violate his Fifth Amendment rights. In

      State v. I.T., 4 N.E.3d 1139 (Ind. 2014), the Indiana Supreme Court held a

      juvenile’s incriminating statements to a therapist could not be used against him

      or her in a new delinquency petition. On the other hand, a juvenile’s

      statements to an evaluator may be used in proceedings to modify a dispositional

      decree without raising issues of self-incrimination. The Court reasoned,

      “modifying disposition merely adjusts the rehabilitative services ordered in

      connection with a delinquency determination that has already been made. . . .




      1
       Indiana Code section 31-9-2-43.8 (2007) defines an “evaluator” for purposes of Indiana Code section 31-37-
      8-4.5 as “a person responsible for providing mental health screening, evaluation, or treatment to a child in
      connection with a juvenile proceeding or juvenile probation proceeding.”

      Court of Appeals of Indiana | Memorandum Decision 79A05-1712-JV-2915 | April 30, 2018            Page 3 of 6
       [T]he juvenile’s statement is used only to better tailor services to their particular

       needs, and thus to promote their rehabilitation.” Id. at 1146-47. See also

       Bussberg v. State; 827 N.E.2d 37 (Ind. Ct. App. 2005) (use of defendant’s

       statements during probation revocation hearing did not violate Fifth

       Amendment; probation proceedings are civil in nature); trans. denied.


[8]    The State did not seek to file a new delinquency petition against S.W. for his

       admissions of wrongdoing. Instead, the State simply asked the court to modify

       the dispositional order. S.W.’s statements were used to tailor a placement to

       better serve his rehabilitative needs in compliance with Indiana Code section

       31-37-8-4.5, not to place him in further criminal jeopardy. We cannot conclude

       the juvenile court violated his Fifth Amendment rights.


[9]    Next, S.W. claims the juvenile court erred in granting wardship to the DOC

       rather than keeping him on probation. A juvenile court must place a delinquent

       child in the “least restrictive” setting possible “[i]f consistent with the safety of

       the community and the best interest of the child.” Ind. Code § 31-37-18-6

       (1997). Subject to statutory requirements, we review the juvenile court’s

       disposition for an abuse of discretion. K.S. v. State, 849 N.E.2d 538 (Ind. 2006).

       An abuse of discretion occurs when the court’s action is clearly erroneous and

       against the logic and effect of the facts and circumstances or the reasonable,

       probable, and actual deductions to be drawn therefrom. D.B. v. State, 842

       N.E.2d 399 (Ind. Ct. App. 2006).


[10]   The juvenile court imposed a more restrictive disposition in this case, stating:


       Court of Appeals of Indiana | Memorandum Decision 79A05-1712-JV-2915 | April 30, 2018   Page 4 of 6
               Court enters disposition as stated herein for the following
               reason(s):
               [S.W.] has been offered extensive services through the Juvenile
               Justice System. He has had placement in the Department of
               Corrections [sic] suspended on two occasions. [S.W.] was
               recently unsuccessfully discharged from community based sexual
               offender program through Families United.
               Court finds the following services have been offered:
               supervised probation, random drug screens, placement in secure
               detention, placement on house arrest with intensive supervision,
               aggression replacement training (ART), community service,
               random drug screens, substance use disorder assessment,
               individual counseling, placement in emergency shelter care on
               two occasions, home detention with electronic GPS tracking on
               five occasions, home based case management, placement at
               Lutherwood Residential Facility, sexual offender treatment at
               Families United, and placement at the Department of
               Corrections, suspended.
               Court finds said disposition consistent with the safety of the
               community and the best interests of the child.

       Appellant’s App. Vol 3, p. 107.


[11]   S.W. does not challenge the accuracy of the juvenile court’s statement,

       choosing instead to characterize the decision as “punitive.” Appellant’s Br. p.

       13. We disagree. The record amply supports the court’s determination that less

       restrictive alternatives have not caused S.W. to change his behavior. To the

       contrary, he continued to take photographs of underage girls and began abusing

       controlled substances. Commitment to the DOC was a reasonable and

       necessary means to encourage S.W. to reform, and we cannot conclude the

       court abused its discretion.

       Court of Appeals of Indiana | Memorandum Decision 79A05-1712-JV-2915 | April 30, 2018   Page 5 of 6
[12]   For the reasons stated above, we affirm the judgment of the trial court.


[13]   Affirmed.


       Kirsch, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 79A05-1712-JV-2915 | April 30, 2018   Page 6 of 6
