MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         FILED
regarded as precedent or cited before any                                Feb 19 2020, 10:28 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
R. Patrick Magrath                                        Curtis T. Hill, Jr.
Madison, Indiana                                          Attorney General of Indiana
                                                          Courtney Staton
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

N.T.D., A Child Alleged to Be a                           February 19, 2020
Delinquent,                                               Court of Appeals Case No.
Appellant-Defendant,                                      19A-JV-1971
                                                          Appeal from the Jennings Circuit
        v.                                                Court
                                                          The Honorable Jon W. Webster,
State of Indiana,                                         Judge
Appellee-Plaintiff.                                       Trial Court Cause No.
                                                          40C01-1809-JD-6



Tavitas, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-JV-1971 | February 19, 2020                 Page 1 of 8
                                               Case Summary
[1]   N.D. appeals from the juvenile court’s modification of its dispositional order to

      order N.D. to be committed to the Department of Correction (“DOC”) for

      housing in the Indiana Boys School. We affirm.


                                                       Issue
[2]   The sole issue on appeal is whether the juvenile court abused its discretion

      when it committed N.D. to the DOC.


                                                       Facts
[3]   On August 20, 2018, while N.D. resided in the Jackson County Juvenile

      Residence (“group home”), N.D. damaged the group home’s property. 1 N.D.’s

      offense would constitute criminal mischief, a Class A misdemeanor, if

      committed by an adult. On August 23, 2018, the State filed a petition alleging

      that N.D. was a juvenile delinquent. On August 28, 2018, N.D. admitted the

      allegation.


[4]   Jennings County accepted the matter for disposition in October 2018. The

      juvenile court conducted a dispositional hearing on January 3, 2019, and N.D.

      was adjudicated a juvenile delinquent. The next day, the juvenile court

      approved an agreement wherein N.D. would be placed on supervised probation




      1
          The Jennings County Department of Child Services placed N.D. in the Jackson County group home.


      Court of Appeals of Indiana | Memorandum Decision 19A-JV-1971 | February 19, 2020             Page 2 of 8
      for twelve months, with a suspended commitment to the DOC. N.D was

      allowed to return to the group home.


[5]   On February 9, 2019, during an altercation with a fellow group home resident,

      N.D. drew a knife and used an electronic-arc lighter to tase the resident. These

      acts, which would constitute attempted battery with a deadly weapon, if

      committed by an adult, violated the group home’s rules and the terms of N.D.’s

      probation.


[6]   The probation department filed a modification report on February 15, 2019,

      wherein it alleged that N.D. violated his probation. The modification report

      provides: “It is unsafe for [N.D.] to remain in the juvenile home”; “[h]e

      escalated negative behavior while in placement . . . .”; “[h]e has been in

      treatment, foster homes, and in the group home. He has had unsuccessful

      counseling for years”; “[p]lacement is failing”; “[h]e is putting other childrens

      [sic] safety at risk”; and “[h]e should be sentenced to Indiana Boys School.”

      Appellant’s App. Vol. II pp. 81-82.


[7]   On April 10, 2019, the juvenile court conducted a hearing on the request for

      modification of the dispositional order. On April 15, 2019, the juvenile court

      approved a new agreement that extended N.D.’s probation for an additional

      year and placed N.D. in Lutherwood, a secure residential facility “for an

      indeterminate period[.]” Tr. Vol. II p. 12.


[8]   N.D. was subsequently involved in the following incidents at Lutherwood. On

      April 25, 2019, N.D. stomped on a fellow resident’s foot and caused injury. On

      Court of Appeals of Indiana | Memorandum Decision 19A-JV-1971 | February 19, 2020   Page 3 of 8
       May 27, 2019, N.D. punched a fellow resident’s eye. On June 2, 2019, N.D.

       broke a shelf while he tried to lock out group home staff; N.D. also stole and

       snorted a fellow resident’s medication. On June 4, 2019, the probation

       department, again, filed a petition to modify the dispositional order for the

       foregoing offenses, which would be battery, criminal mischief, and theft, if

       committed by an adult.


[9]    The probation department’s second modification report provided: “[N.D.] is in

       a long term DCS placement and is not taking treatment seriouosly [sic]. He

       continues to have delinquent behavior”; [h]e shows very little effort at changing

       his behavior”; [h]e has violated probation by numerous issue[s] while in

       treatment”; [i]t is unsafe for him to remain in the juvenile home; and [h]e

       should be sentenced to Indiana Boys School.” 2 Appellant’s App. Vol. II pp.

       101-102. DCS contributed the following to the modification report: “DCS

       needs help with this child that is unavailable except in a correctional setting.”

       Id. at 103.


[10]   On July 24, 2019, the juvenile court conducted a hearing on the second request

       for modification of the dispositional order. N.D. admitted to the allegations of

       property damage and substance use. Family case manager (“FCM”) Stacey

       Lane of DCS testified that the first modification occurred when N.D. “had




       2
         As in the first modification report, the probation department stated that the placement was “failing” and
       that N.D. “put[s] other childrens [sic] safety at risk.” Appellant’s App. Vol. II p. 103.




       Court of Appeals of Indiana | Memorandum Decision 19A-JV-1971 | February 19, 2020                  Page 4 of 8
       issues . . . in a less restrictive placement at the [group] home.” Id. at 17. As

       FCM Lane testified:


               . . . [W]e had found a placement with Lutherwood after the first
               revocation [ ] due to the behaviors and the concern for [N.D.’s]
               safety and [the] safety of others. [W]hile he’s been at
               Lutherwood there have been several incident reports and the
               latest that I had received was on June 26th [ ]where he and a peer
               had locked himself into his room, [ ] jammed wood pieces in the
               door, and then started banging on a window. They broke the
               glass out of the window and bang-blanging (sic) [ ] on the
               plexiglass of the window to break it out, um, in an elopement
               attempt. [T]hose are behaviors that are concerning to [DCS] [ ]
               in that he was placed at Lutherwood [ ] due to his concerns in a
               lesser restrictive placement.


       Tr. Vol. II p. 17.


[11]   Jennings County probation officer Andrew Judd testified: “[W]e asked for the

       [first] modification [ ] because the [group] home wasn’t the appropriate

       placement and Lutherwood was found to be the best alternative at that time.”

       Id. at 22. Judd testified further that, “There’[ve] been several incidents [ ] at

       Lutherwood of aggressive behavior . . . .” Id. at 23. Judd also testified:


               . . . [A] lot of us are pretty compassionate when it comes to
               [N.D.], . . . however [N.D.’s] behavior has continued to decline,
               he’s continued to have criminal activity while he’s in placement.
               His most recent activity, though it’s not part of this allegation is
               an escape attempt from that locked facility [ ] which was just the
               end of last month, [ ] and I am concerned with what [N.D.]
               might do if he did get out and escape from that facility . . . . [ ] I
               think [N.D.’s] in a bad position, however, his criminal behavior


       Court of Appeals of Indiana | Memorandum Decision 19A-JV-1971 | February 19, 2020   Page 5 of 8
                 is continuing to evolve, and so I think the Indiana Boy[s] School
                 is possibly the best place for him.


       Id. at 23. Judd also testified that the Indiana Boys School is equipped to

       provide psychological and psychiatric support that is comparable to the

       treatment N.D. received at Lutherwood.


[12]   At the close of the evidence, the juvenile court “award[ed] wardship of [N.D] to

       the [DOC] for housing in the Indiana Boys School, or any correctional facility

       for children determined appropriate . . . .” Appellant’s App. Vol. II p. 111.

       N.D. now appeals.


                                                    Analysis
[13]   N.D. argues that the juvenile court abused its discretion in ordering him

       committed to the DOC. A juvenile court is accorded “wide latitude” and

       “great flexibility” in its dealings with juveniles. J.S. v. State, 881 N.E.2d 26, 28

       (Ind. Ct. App. 2008). “[T]he choice of a specific disposition of a juvenile

       adjudicated a delinquent child is a matter within the sound discretion of the

       juvenile court and will only be reversed if there has been an abuse of that

       discretion.” Id. The juvenile court’s discretion in determining a disposition 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. An

       abuse of discretion occurs when the juvenile court’s action is “clearly

       erroneous” and against the logic and effect of the facts and circumstances before

       it. Id.


       Court of Appeals of Indiana | Memorandum Decision 19A-JV-1971 | February 19, 2020   Page 6 of 8
[14]   The goal of the juvenile process is rehabilitation, not punishment. R.H. v. State,

       937 N.E.2d 386, 388 (Ind. Ct. App. 2010). “Accordingly, juvenile courts have

       a variety of placement options for juveniles with delinquency problems, none of

       which are considered sentences.” Id. Indiana Code Section 31-37-18-6(1)(A)

       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.”

       “[T]he statute contains language that reveals that a more restrictive placement

       might be appropriate under certain circumstances.” J.S., 881 N.E.2d at 29.

       The law requires only that the disposition selected be the least restrictive

       disposition that is “consistent with the safety of the community and the best

       interest of the child.” D.S. v. State, 829 N.E.2d 1081, 1085 (Ind. Ct. App. 2005).


[15]   Given N.D.’s continued criminal activity and violations of the terms of his

       supervised probation in less-restrictive placements, we cannot say that the

       juvenile court abused its discretion here. The record reveals that attempts by

       the juvenile court, probation officials, and DCS to place N.D. in less-restrictive

       placements failed to rehabilitate N.D. Probation officer Judd and FCM Lane

       each testified that N.D.’s bad behavior only escalated in less-restrictive

       placements and recommended that N.D. be placed in the DOC; the juvenile

       court acquiesced. N.D.’s case appears to be one in which a more restrictive

       placement is appropriate. See J.S., 881 N.E.2d at 29. The juvenile court did not

       abuse its discretion when it ordered N.D. to be committed to the DOC for

       housing in the Indiana Boys School.


       Court of Appeals of Indiana | Memorandum Decision 19A-JV-1971 | February 19, 2020   Page 7 of 8
                                                 Conclusion
[16]   The juvenile court did not abuse its discretion when it ordered N.D. to be

       committed to the DOC. We affirm.


[17]   Affirmed.


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




       Court of Appeals of Indiana | Memorandum Decision 19A-JV-1971 | February 19, 2020   Page 8 of 8
