MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                             Nov 26 2019, 8:44 am
court except for the purpose of establishing                               CLERK
the defense of res judicata, collateral                                Indiana Supreme Court
                                                                          Court of Appeals
                                                                            and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Michelle Laux                                            Curtis T. Hill, Jr.
St. Joseph County Public Defender’s                      Attorney General of Indiana
Office                                                   Megan M. Smith
South Bend, Indiana                                      Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

T.S.,                                                    November 26, 2019
Appellant,                                               Court of Appeals Case No.
                                                         19A-JV-1537
        v.                                               Appeal from the St. Joseph Probate
                                                         Court
State of Indiana,                                        The Honorable Jason Cichowicz,
Appellee.                                                Judge
                                                         The Honorable Graham Polando,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         71J01-1904-JD-140



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-JV-1537 | November 26, 2019              Page 1 of 9
[1]   T.S. appeals the juvenile court’s dispositional order awarding wardship of him

      to the Department of Correction (“DOC”). We affirm.


                                      Facts and Procedural History

[2]   On April 23, 2019, T.S., who was born on June 17, 2003, was riding in a car

      with other people. At some point, someone in the car indicated they were

      being followed by a police car. The car stopped, and T.S. and everyone else

      “bailed” out of the car. Transcript Volume II at 27. As he ran away, a police

      officer told T.S. to stop, and T.S. continued running.


[3]   On April 24, 2019, the court held a detention hearing. Sandra DeHaven, T.S.’s

      probation officer, indicated he had been placed on formal probation in 2015,

      was released from formal probation on March 20, 2019, had been placed at

      Bashor Home from November 20, 2017 to December 18, 2018, and received

      services from Oaklawn, Dockside, and Keys Counseling “[s]o probation has

      given this family an array of services prior to him being discharged from

      probation.” Id. at 5. She also stated he was suspended from school on April

      11, 2019 for excessive tardies and loitering in the school halls. She

      recommended that he be detained in secure custody.


[4]   T.S.’s counsel indicated T.S. had successfully completed his term of probation

      and his mother was willing to have him home. The court asked T.S.’s mother if

      she was willing to have him stay with her in her home, and she answered: “Yes,

      if [T.S.] is going to do what [he] is supposed to do, yes. But if [he] is not going

      Court of Appeals of Indiana | Memorandum Decision 19A-JV-1537 | November 26, 2019   Page 2 of 9
      to do, no.” Id. at 10. The court stated it was “abundantly clear” that T.S.

      would not follow the rules if he was placed at home, noted that it had just

      discharged him a little more than thirty days earlier from probation, and placed

      him in secure custody. Id. at 11.


[5]   On April 30, 2019, the State filed a delinquency petition alleging that T.S.

      committed resisting law enforcement which would constitute a class A

      misdemeanor if committed by an adult. On May 8, 2019, the court held a

      status hearing, and T.S. admitted the allegation. The court stated that if T.S.

      was released he “will be right back here very soon” and that “[t]here’s simply

      too many referrals, too many violations.” Id. at 33. The court found that

      detention was necessary to protect T.S. and the community.


[6]   In a pre-dispositional report dated June 10, 2019, Probation Officer Dustin D.

      Jesch detailed T.S.’s legal history and recommended wardship be given to the

      DOC.


[7]   On June 11, 2019, the court held a dispositional hearing. T.S.’s counsel argued

      that he had been accepted to the day-reporting program in spite of his apparent

      gang ties. T.S. stated:


              I’d like to say I’m sorry for what I did to get in here. What I did
              back in the detention. Whatever happened, I was planning to
              make the best of it, whether it’s DOC, I’d try to get my GED
              while I’m in there. If I was to go home, sometime soon, I should
              really get a job. Something to keep myself busy, like, I had never
              been in this day reporting thing but it seems like it’s something
              that, you know, have me something to do. So I just wanted to

      Court of Appeals of Indiana | Memorandum Decision 19A-JV-1537 | November 26, 2019   Page 3 of 9
              say, whatever happens, I’m looking forward to making
              something out of it.


      Id. at 42.


[8]   The court stated:


              [T.S.], I note that you accepted responsibility in this cause and
              you received no benefit for that acceptance. That is a significant,
              substantial point in your favor.

              Unfortunately, it is the only significant, substantial point in your
              favor. I find your statement of remorse to be incredible. And I
              find that your behavior here is of a piece with the profoundly
              anti-social behavior you have shown for a very, very, very long
              time.

              I agree with everything Mr. Jes[c]h wrote. I agree with his
              conclusions. I particularly agree with his statement that to
              believe that [T.S.’s] behavior will change toward authority is
              nonsensical. Anything less restrictive than what’s being
              proposed here, including day reporting, is flatly inconsistent with
              the safety of the community.

              So the probation department’s recommendation should be
              adopted. [T.S.] [is] made a ward of the Department of
              Correction.


      Id. at 42-43.


[9]   On June 11, 2019, the court entered a dispositional order adopting the

      statements and attachments in the probation officer’s report and awarded

      wardship of T.S. to the DOC.



      Court of Appeals of Indiana | Memorandum Decision 19A-JV-1537 | November 26, 2019   Page 4 of 9
                                                   Discussion

[10]   T.S. argues that the juvenile court abused its discretion when it committed him

       to the DOC. He also argues that the court erred by ordering him to be

       committed to the DOC for an indefinite period and asserts that “[i]t is more

       than likely that it will be for a period greater than ninety (90) days, clearly

       contrary to Ind. Code § 31-37-19-6.” Appellant’s Brief at 9 (italics omitted).

       The State argues that the juvenile court did not abuse its discretion by

       committing T.S. to the DOC because other least restrictive means of

       rehabilitation had previously been attempted without success.


[11]   The juvenile court is given wide latitude and great flexibility in determining the

       disposition of a delinquent child. D.A. v. State, 967 N.E.2d 59, 65 (Ind. Ct.

       App. 2012). However, its discretion is circumscribed by Ind. Code § 31-37-18-

       6, which provides that, “[i]f consistent with the safety of the community and the

       best interest of the child,” the juvenile court shall enter a dispositional decree

       that is “in the least restrictive (most family like) and most appropriate setting

       available” and “close to the parents’ home, consistent with the best interest and

       special needs of the child”; least interferes with family autonomy; is least

       disruptive of family life; imposes the least restraint on the freedom of the child

       and the child’s parent, guardian, or custodian; and provides a reasonable

       opportunity for participation by the child’s parent, guardian, or custodian.

       Under the statute, placement in the least restrictive and most appropriate setting

       available applies only “[i]f consistent with the safety of the community and the

       best interest of the child.” J.D. v. State, 859 N.E.2d 341, 346 (Ind. 2007) (citing

       Court of Appeals of Indiana | Memorandum Decision 19A-JV-1537 | November 26, 2019   Page 5 of 9
       Ind. Code § 31-37-18-6). We will not overturn the juvenile court’s disposition

       order absent an abuse of discretion. R.H. v. State, 937 N.E.2d 386, 388 (Ind. Ct.

       App. 2010).


[12]   The record reveals that the pre-dispositional report indicates T.S. tested positive

       for marijuana on April 24, 2019. Prior services included “Keys Counseling

       tutoring, therapy and case management; Dockside Services COSAT assessment

       and other services; detention services; home detention services; residential

       treatment services, parent education, and parent substance abuse treatment.”

       Appellant’s Appendix Volume II at 71-72. The report indicates that, since his

       detainment on April 24, 2019, T.S. received approximately nine incident

       reports for defiance, threats, and disrespect to staff and that on June 7, 2019, he

       “and two other residents got into a major altercation requiring the use of OC-10

       by detention staff to control the situation.” Id. at 71.


[13]   The report details T.S.’s lengthy legal history, which includes allegations of

       burglary and multiple batteries resulting in bodily injury. It summarizes T.S.’s

       history as follows:


               A lengthy history of delinquency characterizes [T.S.’s] life from
               2014 to the present. While not every incidence of delinquency
               has been brought to the Court’s attention, including fights and
               defiance at school, at only 15 years old, [T.S.] has nine
               delinquency referrals to the probation department, four of which
               have resulted in an adjudication. A consistent pattern has
               emerged when one researches his background: [T.S.] often feels
               that rules and laws do not apply to him. Whether he is stealing
               fireworks, giving a child a bloody nose, running from law
               enforcement, or stealing someone’s money, [T.S.] is
       Court of Appeals of Indiana | Memorandum Decision 19A-JV-1537 | November 26, 2019   Page 6 of 9
        demonstrating that he is both impulsive and willing to defy most
        conventional societal norms. In school settings at both Bashor
        and in the South [Bend] Community School Corporation,
        [T.S.’s] penchant for rule-breaking is obvious and often severe.
        Documents indicate that he is not simply being redirected for
        talking. [T.S.] often escalates a situation in which he feels
        aggrieved, and the result is often a suspension and potentially a
        probation violation.

        [T.S.] is a 15 year old male appearing before the Court for
        disposition for Resisting Law Enforcement, a Class A
        Misdemeanor when committed by an adult. [T.S.] scored high
        on the Indiana Youth Assessment System indicating there is a
        high probability that he will commit another delinquent act. The
        drivers of his behavior are anti-social cognition and anti-social
        peers. [T.S.] may state he does not associate with gang members
        or that he is not influenced by others, but the evidence of gang
        activity on Facebook is obvious and was posted after he was
        released from Bashor. To further complicate things, [T.S.’s
        mother’s] page also shows an affinity for a local gang. To believe
        that [T.S.’s] behavior will change in a permissive family
        environment with a parent who, at a minimum, shows
        acceptance of gang activity, and to believe that [T.S.’s] behavior
        will change toward authority is nonsensical. Significant
        intervention must take place to prevent this young man from
        continuing down a path that will lead to a lack of educational
        attainment and more criminal behavior.

        Dispositional Options Considered and Evaluation of Each:
        Probation in the community has been tried several times and has
        only led to more probation violations. Relative care is not an
        option because it will not prevent [T.S.] from disregarding house
        rules and doing as he pleases. Out of home placement has also
        been tried, but soon after his release [T.S.] reverted to his old
        behavior. Commitment to a correctional [sic] is the only option
        that will provide the structure and discipline that [T.S.]
        desperately needs.

Court of Appeals of Indiana | Memorandum Decision 19A-JV-1537 | November 26, 2019   Page 7 of 9
       Id. at 72. The report recommends that T.S. be awarded to the care and custody

       of the DOC for placement at an appropriately facility.


[14]   Based upon the record, and in light of T.S.’s delinquent behavior and failure to

       adequately respond to prior attempts at rehabilitation, we conclude that the

       placement ordered by the juvenile court is consistent with his best interest and

       the safety of the community and find no abuse of discretion. See D.E. v. State,

       962 N.E.2d 94, 97 (Ind. Ct. App. 2011) (holding the juvenile court did not

       abuse its discretion in placing D.E. in a DOC facility even though there was a

       less restrictive option available where earlier attempts to rehabilitate his

       behavior were unsuccessful). 1


[15]   With respect to T.S.’s citation of Ind. Code § 31-37-19-6, that statute provides

       that “the juvenile court may . . . [a]ward wardship to . . . the department of

       correction for housing in a correctional facility for children . . . .” Ind. Code §

       31-37-19-6(b)(2)(A)(i) (emphasis added). It also provides that “the juvenile

       court may . . . take any of the following actions . . . [i]f the child is less than

       seventeen (17) years of age, order confinement in a juvenile detention facility for

       not more than the lesser of: (i) ninety (90) days; or (ii) the maximum term of

       imprisonment that could have been imposed on the child if the child had been




       1
         To the extent T.S. cites E.H. v. State, 764 N.E.2d 681 (Ind. Ct. App. 2002), reh’g denied, trans. denied, we find
       that case distinguishable. E.H. was involved in home-based counseling and was making considerable
       progress. 764 N.E.2d at 686. E.H.’s home-based counselor testified that removing him from his current
       situation would cause him to regress in his treatment. Id. Further, E.H. lacked a violent criminal record and
       there was no evidence that E.H. was a threat to the community. Id.

       Court of Appeals of Indiana | Memorandum Decision 19A-JV-1537 | November 26, 2019                       Page 8 of 9
       convicted as an adult offender for the act that the child committed under IC 31-

       37-1 (or IC 31-6-4-1(b)(1) before its repeal).” Ind. Code § 31-37-19-6(b)(2)(B)

       (emphasis added). T.S. appears to focus his argument on the commitment to

       the DOC and not to any earlier detention period. The Indiana Supreme Court

       has held that Ind. Code § 31-37-19-6 “provides for, among other things, an

       indeterminate commitment of a delinquent child,” that “[o]ne option for the

       trial court under section 6 is to award wardship of the child to the DOC,” and

       that “[i]n that case, the DOC determines both the placement of the juvenile and

       the duration of the placement.” D.C. v. State, 958 N.E.2d 757, 759 (Ind. 2011).

       We cannot say that reversal is warranted on this basis.


[16]   For the foregoing reasons, we affirm the juvenile court.


[17]   Affirmed.


       Baker, J., and Riley, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-JV-1537 | November 26, 2019   Page 9 of 9
