Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
before any court except for the                    Sep 05 2014, 9:31 am
purpose of establishing the defense of
res judicata, collateral estoppel, or the
law of the case.

ATTORNEY FOR APPELLANT:                        ATTORNEYS FOR APPELLEE:

DEBORAH MARKISOHN                              GREGORY F. ZOELLER
Marion County Public Defender Agency           Attorney General of Indiana
Indianapolis, Indiana
                                               KARL M. SCHARNBERG
                                               Deputy Attorney General
                                               Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

M.M.,                                          )
                                               )
        Appellant-Defendant,                   )
                                               )
               vs.                             )    No. 49A04-1312-JV-622
                                               )
STATE OF INDIANA,                              )
                                               )
        Appellee-Plaintiff.                    )


                     APPEAL FROM THE MARION SUPERIOR COURT
                          The Honorable Marilyn Moores, Judge
                         The Honorable Scott Stowers, Magistrate
                             Cause No. 49D09-1309-JD-2587


                                    September 5, 2014

             MEMORANDUM DECISION - NOT FOR PUBLICATION

ROBB, Judge
                                 Case Summary and Issue

       The juvenile court ordered M.M. to be placed in a secure residential facility after

M.M. violated a court-ordered curfew and was adjudicated a delinquent based on conduct

that would be theft if committed by an adult. M.M. appeals her placement in a secure

facility, raising one issue for our review: whether M.M.’s placement is contrary to

Indiana Code section 35-42-3.5-4, which provides a victim of human trafficking may not

be detained or otherwise penalized due to her status as a crime victim. Concluding the

placement was not contrary to the statute and that the court did not abuse its discretion in

placing M.M. in a secure residential facility, we affirm.

                               Facts and Procedural History

       On September 4, 2013, the State alleged M.M. was a delinquent juvenile based on

conduct that, if committed by an adult, would constitute theft, a Class D felony. On

September 27, 2013, a pre-trial hearing was held during which M.M. admitted to the theft

allegation. At that hearing, the juvenile court ordered M.M. to observe a 7 p.m. curfew to

be monitored by M.M.’s mother.

       On October 18, 2013, the State filed a Motion for Order to Provide the Respondent

a Psychological Examination and/or Medical Treatment under IC 31-32-12. Along with

that motion, the State attached a copy of a probable cause affidavit written by Officer

Laura Spicer of the Indianapolis Metropolitan Police Department.          The motion and

probable cause affidavit indicated that M.M. broke curfew and ran away from home on

October 7, 2013, and that for approximately one week, M.M. prostituted herself while

working for a woman named “Kiki.”

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       A dispositional hearing was held on November 21, 2013. Prior to the hearing, the

probation department filed its report recommending M.M. be placed at a secure

residential facility. The State agreed with this recommendation. M.M. argued that a

residential placement was inappropriate and that she should be permitted to return home

with her mother. M.M. argued that therapy provided through Choices, Inc., which she

began in September 2013, had been successful, and she should be allowed to continue

participating in that therapy program. M.M. also argued that placement in a secure

residential facility was contrary to law because of her status as a victim of human

trafficking.

       With respect to services M.M. could obtain if she were placed in secure detention

at Fayette Regional Care Pavilion, Cathy Twombley, M.M.’s behavior therapist, testified

that the opportunity to obtain therapy three times a week would be beneficial to M.M.,

and Twombley also indicated that the frequency of therapy there separated Fayette

Regional Care Pavilion from other potential placements. Bryan Davis, who represented

Choices at the dispositional hearing, said he believed Choices could continue to provide

the necessary services such as those offered by Fayette Regional Care Pavilion, but he

expressed concern about the possibility that M.M. might run away again or have

difficulty successfully completing the services while living at home:

       CHOICES can provide the services that was [sic] just discussed. Our only
       concern is just [M.M.] staying in the home and being able to do these
       services. Um of course a residential facility would provide that secure
       location where she can have services given to her without being interrupted
       but our concern really is just her leaving out of the house and the things that
       go on during that time, is the biggest concern for CHOICES.


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Transcript at 31.

       On November 21, 2013, the juvenile court issued its dispositional order, adopting

the probation department’s recommendation and ordering that M.M. be placed at Fayette

Regional Care Pavilion.      M.M. filed a Motion for Presiding Judge to Reconsider

Placement, which was denied. This appeal followed. Additional facts will be supplied as

necessary.

                                  Discussion and Decision

                                  I. Standard of Review

       The specific disposition for a juvenile adjudicated a delinquent is a matter within

the sound discretion of the juvenile court, and that decision may be reversed only if there

has been an abuse of discretion. J.S. v. State, 881 N.E.2d 26, 28 (Ind. Ct. App. 2008).

An abuse of discretion occurs when the decision is clearly against the logic and effect of

the facts and circumstances before the court. Id. In choosing a specific disposition for a

juvenile, the court’s discretion is subject to “statutory considerations of the welfare of the

child, the safety of the community, and the policy of favoring the least harsh disposition.”

Id.

       Our General Assembly has set out the factors the juvenile court should consider

when ordering a disposition:

       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;

                                              4
               (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.

Ind. Code § 31-37-18-6.       The statute requires a juvenile court to choose the least

restrictive setting; however, the statute also “recognizes that in certain situations the best

interest of the child is better served by a more restrictive placement.” J.S., 881 N.E.2d at

29.

                   II. M.M.’s Placement in a Secure Residential Facility

         M.M. contends her placement was contrary to Indiana law and thus an abuse of the

trial court’s discretion. M.M. relies on Indiana Code section 35-42-3.5-4, which states

that an alleged victim of human trafficking “may not be jailed, fined, or otherwise

penalized due to having been the victim of the offense . . . .” Ind. Code § 35-42-3.5-

4(a)(2). M.M. argues that her curfew violation is closely tied to her status as an alleged

victim, and it is unfair to order a secure placement on that basis.

         We do not believe the juvenile court’s placement of M.M. runs afoul of Indiana

Code section 35-42-3.5-4. M.M. was not placed in a secure facility because of her status

as a victim; rather, the placement was a consequence of her admission to theft and

adjudication as a delinquent minor. The record supports the juvenile court’s decision to

order secure placement. There is no question that M.M. is in need of therapy; both

parties were in agreement on that matter throughout the proceedings before the juvenile

court.    M.M.’s previous therapist testified that placement at Fayette Regional Care


                                              5
Pavilion would be beneficial due to the opportunity for frequent therapy sessions. In

addition, the Choices representative believed M.M. would benefit from obtaining services

at a residential facility without interruption, and he expressed concern that M.M. may

have difficulty successfully completing services from home because of her proclivity to

run away or encounter negative influences outside her home. This concern is supported

by the record and by M.M.’s juvenile background, which includes numerous incidents of

M.M. running away from home and getting into trouble. See Appellant’s Appendix 50-

52. It is apparent that the juvenile court considered M.M. to be a potential flight risk, and

thus, it concluded that a secure facility such as Fayette Regional Care Pavilion was the

appropriate location for M.M. to receive services and get back on track. The juvenile

court’s decision was not an abuse of discretion.

                                        Conclusion

       Concluding the juvenile court’s decision to place M.M. in a secure residential

facility did not violate Indiana Code section 35-42-3.5-4 and that the decision was not an

abuse of discretion, we affirm.

       Affirmed.

BAKER, J., and KIRSCH, J., concur.




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