MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                             Dec 31 2019, 11:10 am
court except for the purpose of establishing
                                                                           CLERK
the defense of res judicata, collateral                                Indiana Supreme Court
                                                                          Court of Appeals
estoppel, or the law of the case.                                           and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE:
Paula M. Sauer                                           Curtis T. Hill, Jr.
Danville, Indiana                                        Attorney General of Indiana
                                                         Josiah Swinney
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of R.W., a Child                           December 31, 2019
Alleged to be Delinquent,                                Court of Appeals Case No.
Appellant-Defendant,                                     19A-JV-1729
                                                         Appeal from the Hendricks
        v.                                               Superior Court
                                                         The Honorable Karen M. Love,
State of Indiana,                                        Judge
Appellee-Plaintiff.                                      Trial Court Cause No.
                                                         32D03-1712-JD-235




Tavitas, Judge.



Court of Appeals of Indiana | Memorandum Decision 19A-JV-1729 | December 31, 2019              Page 1 of 13
                                               Case Summary

[1]   R.W. appeals his commitment to the Indiana Department of Correction

      (“DOC”) after his adjudication as a delinquent and subsequent probation

      violations. We affirm.


                                                      Issue

[2]   R.W. raises a single issue, which we restate as whether the juvenile court

      abused its discretion when it committed R.W. to the DOC.


                                                      Facts

[3]   In 2017, fifteen-year-old R.W. lived at home with his mother, E.S., (“Mother”)

      and younger sister. R.W.’s father, R.W. (“Father”) has a criminal history and

      is not involved in R.W.’s life; Mother has an order for protection against

      Father. R.W. has a history of mental health issues and marijuana abuse.


[4]   In August 2017, the State filed a petition in Hendricks County alleging R.W.

      committed an act that would be considered dangerous possession of a firearm if

      committed by an adult, a Class A misdemeanor, after police discovered a

      loaded gun under R.W.’s bed while responding to a disturbance at Mother’s

      home between Mother and R.W. on August 17, 2017.


[5]   On September 11, 2017, the State filed a petition in Marion County alleging

      R.W. was a delinquent for committing three counts of an act that would be

      considered theft if committed by an adult, Class A misdemeanors, after R.W.

      was caught stealing items from vehicles. The case was transferred to Hendricks


      Court of Appeals of Indiana | Memorandum Decision 19A-JV-1729 | December 31, 2019   Page 2 of 13
      County, where R.W. resided and where his August 2017 offense was still

      pending.


[6]   On October 16, 2017, the probation department filed a petition alleging that

      R.W. violated the terms of his supervised community adjustment. The specific

      allegations were that, on October 10, 2017, R.W. was arrested in Hendricks

      County for: (1) an act that would be considered dealing in marijuana if

      committed by an adult, a Class A misdemeanor; (2) an act that would be

      considered possession of paraphernalia if committed by an adult, a Class C

      misdemeanor; (3) an act that would be considered possession of an altered

      handgun if committed by an adult, a Level 5 felony; (4) an act that would be

      considered unauthorized entry of a motor vehicle if committed by an adult, a

      Class B misdemeanor; and (5) an act that would be considered residential entry

      if committed by an adult, a Level 6 felony.


[7]   On October 23, 2017, R.W. was adjudicated a delinquent for: (1) the October

      10, 2017 offense of an act that would be considered possession of an altered

      handgun if committed by an adult, a Level 5 felony; and (2) the August 2017

      firearm offense. The remaining October 2017 offenses were dismissed. For the

      October 2017 offense, R.W. served fourteen days in detention, received a

      suspended commitment to the DOC, and was placed on twelve months of

      probation. For the August 2017 offense, R.W. served sixteen days in detention

      and was not ordered to serve probation because “[p]robation supervision [was]

      ordered” for the October 2017 offense. Appellant’s App. Vol. II p. 134.



      Court of Appeals of Indiana | Memorandum Decision 19A-JV-1729 | December 31, 2019   Page 3 of 13
[8]    On November 13, 2017, R.W. entered an admission agreement regarding the

       September 2017 Marion County offenses; R.W. admitted to one count of theft

       and the other counts were dismissed. After a dispositional hearing on February

       26, 2018, the juvenile court entered a dispositional order placing R.W. on a

       suspended DOC commitment, in White’s residential treatment program

       (“White’s”), and three months of probation after completion of the program at

       White’s.


[9]    R.W. completed White’s successfully in August 2018 and was released to begin

       his three months of probation. At a review hearing on November 5, 2018,

       R.W. did not appear for the hearing due to a calendar error; the juvenile court

       re-set the hearing for later in November. At the November 5 hearing, however,

       the State told the juvenile court that R.W. missed four drug screens in

       September. The hearing was reset for November 19, 2018, and during the

       hearing, the probation department informed the juvenile court that it would be

       filing a violation.


[10]   On December 4, 2018, the State filed a petition to modify R.W.’s supervision,

       alleging that: (1) R.W.’s drug screens on November 8, 2018, and November 16,

       2018, tested positive for marijuana; and (2) R.W. failed to call into the drug

       screen line eighteen times as of October 21, 2018. At the conclusion of the

       hearing on December 10, 2018, R.W. admitted he tested positive for marijuana,

       and the juvenile court entered a dispositional order for an additional four

       months of probation. The juvenile court also gave R.W. an opportunity to be

       released from probation early if he had six consecutive negative drug screens.

       Court of Appeals of Indiana | Memorandum Decision 19A-JV-1729 | December 31, 2019   Page 4 of 13
[11]   On January 23, 2019, the State filed another petition to modify R.W.’s

       supervision. The petition alleged that: (1) since October 2018, R.W. has only

       called into the drug screen line ten times; and (2) R.W. failed to report to his

       required drug screens on January 3, 11, and 17, 2019. On February 4, 2019,

       R.W. admitted to the allegations in open court and the juvenile court again

       extended R.W.’s probation until May 31, 2019. The juvenile court again gave

       R.W. the opportunity to complete probation early if he had six negative drug

       screens.


[12]   On May 13, 2019, the State filed another petition to modify R.W.’s supervision.

       The petition alleged that: (1) as of the February 4, 2019, hearing, R.W. failed to

       call into the drug screen line thirty-three times; (2) R.W. failed to report to his

       required drug screens on February 5, March 13, March 19, April 23, and May

       3, 2019; and (3) R.W.’s drug screens on February 12, February 22, March 1,

       March 8, March 18, April 9, and April 15, 2019, were all positive for

       marijuana. A hearing was set for June 3, 2019 on the petition; however, prior

       to the hearing, the State moved to amend its petition on May 28, 2019.


[13]   The amended petition alleged that: (1) R.W. failed to submit to a required drug

       screen on May 16, 201[9]; (2) R.W.’s urine sample on May 9, 2019, was

       positive for amphetamines; and (3) a probation officer witnessed a video of

       R.W. holding a gun. An emergency detention order was issued on May 29,

       2019; however, the order was recalled on May 31, 2019.




       Court of Appeals of Indiana | Memorandum Decision 19A-JV-1729 | December 31, 2019   Page 5 of 13
[14]   On June 24, 2019, R.W. admitted that he failed to call into the drug line several

       times, failed to submit several drug screens, and tested positive for marijuana

       more than once. Mother also testified at the hearing that, on May 29, 2019, via

       telephone, Mother informed probation of her concern that R.W. may be

       abusing Xanax.


[15]   At the June 24, 2019, hearing, the State also attempted to introduce a video of

       R.W. found on social media; R.W. objected to admission of the video. The

       juvenile court overruled R.W.’s objection and gave the State the opportunity to

       lay foundational evidence regarding the video. Shelby Wiser, R.W.’s probation

       officer, testified that she viewed the video about a month prior to the hearing.

       Wiser testified:


               The other juvenile in this video is making threats towards [a
               third] juvenile that I had on probation. [The third juvenile] went
               to the principal because he was concerned that he might violate
               probation if something were to happen because they were making
               – he was – this one, was making threats towards him so he was
               concerned so he sent it – showed it to the principal and then I
               was notified on May 16 which is the first time I saw the video.


       Tr. Vol. II pp. 109-110. No date was posted on the video and the date of the

       recording could not be ascertained. Wiser testified that the video was posted on

       R.W.’s “Snapchat” account. Id. at 108. Again, R.W. objected to admission of

       the video, which the trial court overruled.


[16]   Wiser recommended the juvenile court send R.W. to the DOC because she was

       “concerned for his safety and wellbeing.” Id. at 111. Wiser testified she did not

       Court of Appeals of Indiana | Memorandum Decision 19A-JV-1729 | December 31, 2019   Page 6 of 13
       believe that she could effectively supervise him, and Wiser was “at a loss” and

       unsure how else to help R.W.; R.W. was “being screened once per week and he

       continue[d] to fail to call daily so, [Wiser did not] see what other option there

       [was] at th[at] point.” Id. Wiser identified the “multiple programs” at the DOC

       that may help R.W., including the “substance abuse program” and R.W. would

       receive an assessment that would help the DOC identify services that would be

       most helpful to R.W. Id. at 112.


[17]   Before taking the matter under advisement, the juvenile court summarized

       R.W.’s history:


               So just looking at - this was a case that was actually venued to
               Hendricks County for disposition from Marion County and in
               the pre-dispositional report I show that, uh, in November of 2017
               - of 2015 he committed criminal mischief and he was adjudicated
               for that, uh, on January 25 of ‘16. He was placed on probation,
               uh, but he was released early on that case, then, uh, on in August
               of 2017 he was charged with dangerous possession of a firearm
               and he was adjudicated for that in October. Uh, then after that,
               let’s see there was another case so he had that in August then in
               October there was another delinquent act for, uh, in which he
               eventually admitted which was possession of an altered handgun
               so we have two handgun allegations all prior to, uh, this case.
               Then in this case I ordered him to go to White’s and he did, let’s
               see. So then in September of ‘18 he was released from White’s,
               he had after care which included individual therapy, family
               therapy, home based counseling. That was in October of ‘18.
               Then we had the December 18 petition to modify, then on
               December 10 of ‘18 I continued probation for four months but
               ordered that he could be released early with six consecutive
               negative drug screens. Then in January we had a petition to
               modify regarding the failed drug screens. In February I extended

       Court of Appeals of Indiana | Memorandum Decision 19A-JV-1729 | December 31, 2019   Page 7 of 13
               probation to May 31 then on May 14 more allegations regarding
               drug screens and failure to screen, then there was a supplemental
               regarding this video and testing positive on May 9 for
               amphetamines. Uh, and so when he appeared here on June 3 the
               Court put him on home detention.


       Id. at 114-15. The juvenile court continued the hearing for one week, continued

       R.W. on home detention until the next year, and ordered R.W. to take a drug

       test every day until the subsequent hearing one week later. No evidence

       appears in the record that indicates R.W. tested positive.


[18]   The juvenile court held a hearing on July 1, 2019, and sentenced R.W. to the

       DOC. The juvenile court entered a dispositional order and found:


               On 6-24-19 youth appeared with counsel and his mother and
               admitted that he failed to call the drug testing hotline multiple
               times, failed to submit to urine drug screens on 2/5/19, 3/13/19,
               3/19/19, 4/23/19 and 5/3/19 and tested positive for marijuana
               on 2/12/19, 2/22/19, 3/1/19, 3/8/19, 3/18/19, 4/9/19 and
               4/15/19.


               State and probation asked the Court to send youth to the Indiana
               Department of Corrections [sic]. Youth made passionate plea for
               continued leniency.


               State presented credible evidence that youth violated his release
               on home detention by failing to provide a drug screen.


               Further, State presented a video of a post to Snapchat which
               showed youth and another youth the Court had on probation for
               armed robbery and both were waving a handgun.



       Court of Appeals of Indiana | Memorandum Decision 19A-JV-1729 | December 31, 2019   Page 8 of 13
         The exact date of the video posted to Snapchat is unknown.
         Probation Officer Shelby Wiser saw the video on or about 5-16-
         19.


         The Court has seen youth multiple times since he was fourteen
         years old. Youth has grown and his physical appearance
         including his size has changed since that time. Based on youth’s
         physical appearance in the video the court is confident that the
         video was taken after youth completed residential treatment.
         Since leaving residential treatment youth appears to be working
         out and now has a stocky build as shown in the video. The
         Court asked youth if he had anything else to say after the Court
         saw the video and youth responded “It’s just all a video, Your
         Honor, it was just me being dumb and shoulda (sic) never got
         posted on a Snapchat. None of that. And, it’s all-” Youth’s
         attorney interrupted him.[ 1]


         Youth has had the benefit of residential placement and intensive
         probation with Cross Systems of Care. Youth continues to use
         illegal substances and fails to take his substance abuse seriously.


         An indeterminate placement at IDOC is the only option left if
         youth is to receive the services he needs before he becomes an
         adult.


Appellant’s App. Vol. II pp. 186-87. R.W. now appeals.




1
 As R.W. correctly notes in his brief, R.W.’s entire final statement to the juvenile court was: “It was just me
being dumb and it should have never got posted on a Snap Chat, none of that, it’s – it’s old.” Tr. Vol. II p.
115.

Court of Appeals of Indiana | Memorandum Decision 19A-JV-1729 | December 31, 2019                  Page 9 of 13
                                                    Analysis

[19]   R.W. argues the juvenile court abused its discretion in committing R.W. to the

       DOC. “The juvenile court has discretion in choosing the disposition for a

       juvenile adjudicated delinquent.” D.E. v. State, 962 N.E.2d 94, 96 (Ind. Ct.

       App. 2011) (citing L.L. v. State, 774 N.E.2d 554, 556 (Ind. Ct. App. 2002), reh’g

       denied). “The discretion 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. “We may overturn [R.W.’s] disposition order only if

       the court abused its discretion.” Id. “An abuse of discretion occurs when the

       juvenile court’s judgment is clearly against the logic and effect of the facts and

       circumstances before it, or the reasonable, probable, and actual deductions to be

       drawn therefrom.” Id.


[20]   Indiana Code Section 31-37-18-6 states:


               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;

       Court of Appeals of Indiana | Memorandum Decision 19A-JV-1729 | December 31, 2019   Page 10 of 13
                        (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.


[21]   R.W.’s argument is that the juvenile court abused its discretion by both: (1) not

       placing R.W. in a less restrictive alternative; and (2) placing R.W. at the DOC

       after “relying on the video to determine that [R.W.] was a risk to the safety of

       the public.” Appellant’s Br. p. 10.


[22]   To the extent that R.W. is arguing that the video was improperly admitted, we

       note that the rules of evidence do not apply in probation revocation hearings the

       same way they apply in other proceedings. See Ind. Rules of Evidence 101(d).

       Even if it was error for the juvenile court to consider the undated video as a

       reason to place R.W. in the DOC, the error was harmless. See K.A. v. State, 775

       N.E.2d 382, 389 (Ind. Ct. App. 2002) (holding that the juvenile court’s

       reference to a predispositional report as a reason for disposition was harmless

       error because the “incorporated information” was contained in other reports),

       trans. denied. The juvenile court also noted several other reasons for R.W.’s

       placement, including his continued drug use and repeated failure to comply

       with the juvenile court’s orders.


[23]   R.W. argues that, still, the juvenile court abused its discretion by placing R.W.

       in the DOC because there was no evidence it was for R.W.’s benefit; for the

       Court of Appeals of Indiana | Memorandum Decision 19A-JV-1729 | December 31, 2019   Page 11 of 13
       safety of the community; or the least harsh dispositional alternative available.

       We disagree.


[24]   First, R.W. overlooks that the least restrictive alternative is only required if that

       placement is consistent with both the safety needs of the community and the

       child’s best interests. See J.B. v. State, 849 N.E.2d 714, 717 (Ind. Ct. App. 2006).

       As a panel of our Court said in J.B., 849 N.E.2d at 718:


               As a fifteen-year old, J.B. has had more than his share of
               experiences with the juvenile court system. He has had many
               chances to modify his behavior but has consistently rejected those
               opportunities by violating his probation, committing new
               offenses, and continuing to abuse drugs. Although we are
               sympathetic with those struggling to overcome drug addictions
               and in no way wish to diminish their plight, we are mindful of
               the impact their actions might have on community safety.


[25]   The same is true here. R.W. had several opportunities to modify his behavior

       since his first involvement in the juvenile court system at age fourteen, and he

       was not sent to DOC until his fourth petition to modify was filed. Although

       R.W. was successful at White’s, R.W. continuously violated probation after his

       successful completion of the White’s program, including numerous positive

       drug screens. Even without considering the video shown at the modification

       hearing, R.W. has committed more than one weapon offense and has

       continued to fall into a pattern of criminal conduct despite the services and

       resources provided to R.W. R.W.’s behavior is destructive to himself and the

       community. The mere fact that less restrictive placement options were

       available to the juvenile court does not mean R.W. is entitled to relief.

       Court of Appeals of Indiana | Memorandum Decision 19A-JV-1729 | December 31, 2019   Page 12 of 13
[26]   The juvenile court placed R.W. in the DOC because—after issuing

       dispositional orders with regard to R.W. several times—the juvenile court felt

       placement in the DOC was the only way for R.W. to obtain the services he

       needed prior to becoming an adult. R.W.’s probation officer testified that she

       could not help R.W. anymore and was “at a loss” for what to do, except to get

       R.W. help in the DOC with the “multiple programs” available to him there.

       Tr. Vol. II pp. 111-12. Based on the record before us, we cannot say that the

       juvenile court abused its discretion in placing R.W. in the DOC. We affirm.


                                                  Conclusion

[27]   The juvenile court did not abuse its discretion in placing R.W. in the DOC. We

       affirm.


[28]   Affirmed.


       Vaidik, C.J., and Najam, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-JV-1729 | December 31, 2019   Page 13 of 13
