MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                               FILED
regarded as precedent or cited before any                               Jul 31 2018, 8:37 am

court except for the purpose of establishing                                   CLERK
                                                                        Indiana Supreme Court
the defense of res judicata, collateral                                    Court of Appeals
                                                                             and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Zachary J. Stock                                          Curtis T. Hill, Jr.
Zachary J. Stock, Attorney at Law, P.C.                   Attorney General of Indiana
Indianapolis, Indiana
                                                          George P. Sherman
                                                          Supervising Deputy Attorney
                                                          General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

T.L.,                                                     July 31, 2018
Appellant-Respondent,                                     Court of Appeals Case No.
                                                          18A-JV-250
        v.                                                Appeal from the Hendricks
                                                          Superior Court
State of Indiana,                                         The Honorable Karen M. Love,
Appellee-Petitioner.                                      Judge
                                                          Trial Court Cause No.
                                                          32D03-1712-JD-232



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-JV-250 | July 31, 2018                    Page 1 of 11
                                Case Summary and Issues
[1]   Following T.L.’s admission to an act that would have constituted battery with a

      deadly weapon, a Level 5 felony if committed by an adult, the juvenile court

      placed T.L. in the care of the Indiana Department of Correction (“DOC”).

      T.L. now appeals, raising two issues for our review: (1) whether the juvenile

      court committed reversible error when it decided T.L. would wear restraints

      during her combined admission and dispositional hearing, and (2) whether the

      juvenile court abused its discretion when it placed T.L. with the DOC. Finding

      no fundamental error in the fact that T.L. wore restraints during the combined

      hearing before the juvenile court and that the juvenile court acted within its

      discretion when it placed T.L. with the DOC, we affirm.



                            Facts and Procedural History
[2]   On November 27, 2017, fifteen-year-old T.L. went to a park in Danville to

      confront A.S. about a pair of T.L.’s shoes that T.L. felt A.S. wrongfully

      possessed. The two had been arguing previously, and T.L. came to the park

      armed with a pair of brass knuckles in her pocket. T.L. and A.S. became

      involved in a physical altercation. T.L. struck A.S. in the face with the brass

      knuckles, causing A.S. to seek treatment at the hospital for an injury above her

      left eye.


[3]   On December 7, 2017, the State filed a petition alleging that T.L. was

      delinquent. The juvenile court issued an emergency detention order for T.L.,


      Court of Appeals of Indiana | Memorandum Decision 18A-JV-250 | July 31, 2018   Page 2 of 11
      finding that there was evidence that she was a threat to public safety because

      she had a history of battery, she had another battery case pending at the time,

      and because the instant offense involved the use of a deadly weapon.


[4]   T.L. was detained on December 18, 2017, and remained in detention until her

      next hearing on January 8, 2018. T.L. was represented by counsel. At the

      beginning of the hearing, the juvenile court noted that T.L. wore restraints 1

      “since this is a crime of violence and I haven’t made a decision about what the

      outcome is going to be here.” Transcript, Volume 2 at 18-19. T.L. did not

      object to wearing restraints.


[5]   T.L.’s counsel acknowledged that it was unlikely that a residential facility

      would accept T.L. for treatment because T.L. had already had a residential

      placement and because her current adjudication was for a violent act. T.L.

      admitted that she had committed the acts alleged in the State’s delinquency

      petition. T.L. explained that her father had counseled her not to fight A.S., but

      her friends had encouraged her to do so. T.L. had possessed the brass knuckles

      for a number of months before her encounter with A.S. T.L. knew that brass

      knuckles were potentially lethal but maintained that she had not intended to

      injure A.S.


[6]   The juvenile court entered a true-finding, and the matter proceeded to

      disposition. The juvenile court noted that “the issue now is what – what is the




      1
          The record does not disclose the nature of the restraints or how T.L. came to be restrained.


      Court of Appeals of Indiana | Memorandum Decision 18A-JV-250 | July 31, 2018                       Page 3 of 11
      best and most appropriate, um, plan going forward in terms of how we – [T.L.]

      gets redirected.” Id. at 31. Dwight Stevenson of the Hendricks County

      Probation Department, who had twenty-four years of experience, provided the

      following information at T.L.’s dispositional hearing. T.L. had been referred

      for her first battery adjudication in 2016. As part of the resolution of that case,

      the State dismissed a pending illegal consumption of an alcoholic beverage

      case, and T.L. was placed on probation. T.L. was released from that probation

      due to being found to be a child in need of services (“CHINS”). T.L. was

      placed in a residential treatment facility for six months during the CHINS case.

      After she completed residential treatment, T.L. admitted that she was still using

      illegal substances. T.L. had been suspended from school for fighting and had

      school attendance issues. T.L. was referred in September of 2017 for a battery

      adjudication. Stevenson had just met with T.L. regarding that matter when she

      committed the acts that formed the basis for the instant adjudication. It was

      Stevenson’s opinion that T.L. would not comply with probation or home

      detention without electronic monitoring or some other form of direct

      supervision.


[7]   Lee Anne Owens, who had been T.L.’s court appointed special advocate in the

      CHINS case, also appeared at the dispositional hearing and testified to the

      following. Cross Systems of Care was a service offered through probation that

      T.L. had not yet been through, but T.L. would not be a suitable candidate for

      probation without being on house arrest or home detention. T.L. would not

      stay at home if not supervised when her father was at work. T.L. required a


      Court of Appeals of Indiana | Memorandum Decision 18A-JV-250 | July 31, 2018   Page 4 of 11
      “drastic intervention” and required an “enormous” amount of supervision. Id.

      at 40, 42. T.L. had significant unaddressed mental health issues but had been

      known to resist treatment in the past. During Owens’ testimony, T.L.’s counsel

      acknowledged that Hendricks County probation did not offer electronic

      monitoring. T.L.’s father confirmed that there was no one else in his home to

      supervise T.L. when he was at work during the day.


[8]   At the conclusion of the dispositional hearing, the juvenile court found that

      probation could not devise a plan for T.L. to meet her needs. In its written

      dispositional order, the juvenile court noted T.L.’s previous contacts with the

      juvenile justice system, her poor school performance, her need for substance

      abuse counseling, and her inability to cope with anger and frustration.

      Appellant’s Appendix, Volume II at 32-33. The juvenile court found that T.L.’s

      delinquent activity was accelerating and that she required a high level of

      supervision that she could not receive in the community. Id. at 33. The

      juvenile court found that without a structured and secure environment where

      T.L. could receive services to address her substance abuse, coping skills, anger

      management skills, and education, T.L. would continue to be a threat to public

      safety. Id. The juvenile court placed T.L. with the DOC for an indeterminate

      commitment. Id. at 34.



                                 Discussion and Decision



      Court of Appeals of Indiana | Memorandum Decision 18A-JV-250 | July 31, 2018   Page 5 of 11
                                          I. Use of Restraints
[9]    T.L. contends that we should reverse the juvenile court’s dispositional order

       because she wore restraints during the combined admission and dispositional

       hearing. As an initial matter, we note that T.L. did not object to wearing

       restraints at the hearing. As a general rule, issues raised for the first time on

       appeal are waived for our review. See In re K.S., 750 N.E.2d 832, 834 n.1 (Ind.

       Ct. App. 2001) (holding that an allegation of a due process violation raised for

       the first time on appeal was waived). T.L. acknowledges the import of her

       failure to object to wearing restraints, and she urges us to examine this issue for

       fundamental error. See Appellant’s Brief at 8-9. “The ‘fundamental error’

       exception is extremely narrow, and applies only when the error constitutes a

       blatant violation of basic principles, the harm or potential for harm is

       substantial, and the resulting error denies the defendant fundamental due

       process.” R.W. v. State, 975 N.E.2d 407, 411 (Ind. Ct. App. 2012) (examining

       the concept of fundamental error in a delinquency proceeding) (citation

       omitted), trans. denied. Fundamental error is defined as an error so prejudicial

       to the rights of a juvenile that a fair hearing is rendered impossible. Id.


[10]   The use of restraints in a juvenile proceeding is addressed in Indiana Code

       section 31-30.5-2-1(a), which provides that


               a juvenile shall not be restrained in court unless the court has
               determined on the record, after considering the recommendation
               of the sheriff or transport officer, that the juvenile is dangerous or
               potentially dangerous.


       Court of Appeals of Indiana | Memorandum Decision 18A-JV-250 | July 31, 2018   Page 6 of 11
       Thus, in order to justify placing or maintaining a juvenile in restraints, the

       juvenile court must consider any recommendations from the authority

       transporting the juvenile to court and make a determination on the record that

       the juvenile is dangerous or potentially dangerous. In this case, there is nothing

       in the record that indicates that a recommendation for restraint by the

       transporting authority was made to, or considered by, the juvenile court, and

       the juvenile court did not make any determinations on the record that T.L. was

       dangerous or potentially dangerous.


[11]   However, we cannot conclude that T.L. was deprived of a fair hearing by the

       juvenile court’s failure to observe the procedure required by statute. A primary

       concern about having a defendant in a criminal trial appear in shackles or

       restraints before a jury is that it may dilute the presumption of innocence or

       cause the jury to base its verdict on extraneous factors. Ritchie v. State, 875

       N.E.2d 706, 718 (Ind. 2007). That concern is not implicated where, as here, a

       juvenile elects to admit to delinquency allegations before the juvenile court

       judge, who is presumed to be impartial. See Garland v. State, 788 N.E.2d 425,

       433 (Ind. 2003) (“The law presumes that a judge is unbiased and

       unprejudiced”). In addition, T.L. does not argue that there was a nexus

       between her admission to the delinquency allegations and the fact that she wore

       restraints at her admission and dispositional hearing. Although the statutes do

       not permit, and we do not condone, the prophylactic use of restraints in a

       juvenile delinquency proceeding, we find that T.L.’s substantial rights were not




       Court of Appeals of Indiana | Memorandum Decision 18A-JV-250 | July 31, 2018   Page 7 of 11
       substantially impacted, and, thus, we will not disturb the juvenile court’s

       delinquency order.


                               II. Least Restrictive Placement
[12]   T.L. also argues that the juvenile court abused its discretion when it placed her

       with the DOC because other less-restrictive options existed. See Appellant’s Br.

       at 10-12. “The choice of the specific disposition of a juvenile adjudicated a

       delinquent child is a matter within the discretion of the juvenile court and we

       will reverse a dispositional order only if there has been an abuse of that

       discretion.” D.C. v. State, 935 N.E.2d 290, 292 (Ind. Ct. App. 2010), aff’d on

       trans., 958 N.E.2d 757 (Ind. 2011).


[13]   Indiana Code section 31-37-18-6 provides the following:


               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;


               (3) is least disruptive of family life;

       Court of Appeals of Indiana | Memorandum Decision 18A-JV-250 | July 31, 2018    Page 8 of 11
               (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.


[14]   Therefore, although the statute generally requires that the juvenile court choose

       the least restrictive placement available, it only requires the least restrictive

       placement that is consistent with the safety of the community and the best

       interests of the juvenile. In some instances, a more restrictive placement is

       appropriate in light of those considerations. J.S. v. State, 881 N.E.2d 26, 28-29

       (Ind. Ct. App. 2008).


[15]   T.L. argues that the juvenile court abused its discretion because it rejected the

       possibility of probation and informal home detention for her and assumed that

       the DOC was the only option. See Appellant’s Br. at 11-12. However, by the

       time of the instant matter, T.L. was fifteen years old and had already received

       probation for another battery true-finding in 2016. T.L. had also had six

       months of treatment in a residential facility. Despite having had the benefit of

       those services, T.L. had two additional contacts in quick succession with the

       juvenile justice system for battery. Indeed, T.L. had just met with Stevenson

       regarding one battery matter when she committed the act which resulted in her

       current adjudication, which was for an act that would have been battery with a

       deadly weapon if committed by an adult. Thus, not only had T.L. failed to

       redirect her behavior through probation and residential treatment, but the

       seriousness of her violence was escalating.

       Court of Appeals of Indiana | Memorandum Decision 18A-JV-250 | July 31, 2018   Page 9 of 11
[16]   In addition, T.L. had been suspended from school for fighting, she had school

       attendance issues, she continued to abuse substances, and she had unaddressed

       mental health and impulse control issues. Stevenson and Owens both indicated

       that T.L. could only succeed on probation and home detention if she were

       intensively supervised. However, Hendricks County did not provide electronic

       monitoring, and T.L.’s father worked during the day, leaving no one in the

       home to monitor T.L. as intensively as she required. Therefore, contrary to

       T.L.’s assertion on appeal, the juvenile court had more than an

       “unsubstantiated belief” that probation and home detention were not a

       possibility for T.L. See Appellant’s Br. at 11. In addition, T.L.’s argument that

       the juvenile court should have considered residential treatment as a less

       restrictive placement, see id. at 12, is inconsistent with her counsel’s

       acknowledgment at the hearing that such a placement was unlikely. Given

       that, even after having received probation and residential treatment in the past,

       T.L.’s pattern of violence had continued and escalated, the lack of options for

       supervision in the community, and that T.L. continued to require services, the

       juvenile court did not abuse its discretion when it concluded that DOC was the

       most appropriate placement option for T.L.



                                               Conclusion
[17]   Concluding that T.L.’s substantial rights were not prejudiced by the wearing of

       restraints at her combined admission and dispositional hearing and that the

       juvenile court did not abuse its discretion by ordering T.L. committed to the


       Court of Appeals of Indiana | Memorandum Decision 18A-JV-250 | July 31, 2018   Page 10 of 11
       DOC rather than to a less restrictive placement, we affirm the juvenile court’s

       dispositional order.


[18]   Affirmed.


       Najam, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-JV-250 | July 31, 2018   Page 11 of 11
