MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                             FILED
regarded as precedent or cited before any                     Aug 16 2017, 9:21 am
court except for the purpose of establishing
the defense of res judicata, collateral                           CLERK
                                                              Indiana Supreme Court
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estoppel, or the law of the case.                                  and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Kimberly A. Jackson                                      Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Caryn N. Szyper
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of F.M. A Child                            August 16, 2017
Alleged To Be A Delinquent                               Court of Appeals Case No.
Child,                                                   52A05-1703-JV-615
F.M.,                                                    Appeal from the Miami Superior
                                                         Court
Appellant-Respondent,
                                                         The Honorable Daniel C. Banina,
        v.                                               Judge
                                                         Trial Court Cause No.
State of Indiana,                                        52D02-1409-JD-42

Appellee-Petitioner.




Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 52A05-1703-JV-615 | August 16, 2017   Page 1 of 8
                                          Case Summary
[1]   F.M. was adjudicated a delinquent and was subject to multiple placements,

      including parental supervision with probation conditions, a group home, a

      secure youth center, a lower-security youth center, and parental supervision

      with electronic monitoring. After two and one-half years, F.M.’s probation

      officer recommended that he be placed in the Indiana Department of

      Correction, Juvenile Division (“the DOC”) and the juvenile court modified the

      disposition decree and ordered placement in the DOC. F.M. appeals,

      presenting the sole issue of whether the court abused its discretion when it

      placed F.M. in the DOC. We affirm.



                                Facts and Procedural History
[2]   In a petition filed on August 26, 2014, the State alleged fourteen-year-old F.M.

      to be a delinquent child for leaving home without permission. He was placed in

      shelter care but released to his mother (“Mother”) two days later. While

      Mother was driving home, F.M. jumped out of her vehicle. He was missing for

      the weekend. F.M. was placed back in shelter care; he left the building but was

      apprehended outside. On September 4, 2014, the State alleged that F.M. was

      delinquent for having committed acts that would be Attempted Escape and

      Escape, as Level 6 felonies,1 if committed by an adult.




      1
          Ind. Code § 35-44.1-3-4.


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[3]   On October 1, 2014, F.M. admitted that he left home without permission. He

      was placed in White’s Residential Home (“White’s”). By agreement between

      F.M. and the State, the escape allegations remained pending. F.M. was advised

      that, if he behaved well at White’s, the State would dismiss the escape-based

      allegations.


[4]   F.M.’s behavior at White’s was such that he was terminated from that

      placement after approximately six months. At a hearing conducted on March

      25, 2015, the State advised the juvenile court that the dismissal agreement had

      failed, and F.M. admitted the truth of the Escape allegation. He was placed in

      the secure section of the Youth Opportunity Center (“the YOC”). At that

      juncture, the juvenile court advised F.M. that he was likely to be placed in Boys

      School if he was uncooperative at the YOC.


[5]   At a placement review hearing conducted in June of 2015, F.M.’s probation

      officer reported that F.M. had participated minimally and struggled with his

      behavior in his latest placement. F.M. was again warned that he was “on

      track” to Boys School. (Tr. Vol. II pgs. 40-41.) At a placement review hearing

      in August of 2015, F.M.’s probation officer reported that there had been

      improvement on F.M.’s part. By December of 2015, F.M. showed some

      improvement educationally, but his therapist reported a lack of progress and

      recommended a different placement. F.M. was subsequently transferred to the

      George Junior Group Home (“George Junior”). F.M. was at George Junior for

      several months, and he was reportedly generally compliant there. However,



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      there were some reported incidences of F.M. punching holes in walls. He also

      left the campus without permission on one occasion, and police were called.


[6]   During August of 2016, F.M. was returned to the custody of his mother

      (“Mother”), subject to probation conditions. By October, Mother advised

      F.M.’s probation officer that he was sometimes not returning home.

      Reportedly, F.M. was missing for an entire weekend. F.M. had been

      suspended from school for eleven days during a nine-week period and the

      Salvation Army, where F.M. was to perform community service, reported that

      F.M. was non-compliant.


[7]   On November 4, 2016, the State filed petitions seeking modification of F.M.’s

      dispositional decree. The State alleged that F.M. violated his probation by

      failing to obey school rules, failing to complete community service, failing to

      obey parental rules, and testing positive for marijuana. At a hearing on

      November 30, 2016, the juvenile court again warned F.M. about the prospect of

      Boy’s School and instructed him not to leave home without permission. Later

      that night, F.M. went to a friend’s house and failed to return home.


[8]   On December 1, 2016, F.M. skipped school. On December 4, 2016, he again

      failed to return to Mother’s home. On the following day, F.M. failed to report

      to a meeting with his probation officer.


[9]   On December 6, 2016, the State filed an additional petition seeking

      modification of F.M.’s dispositional decree. After fact-finding and dispositional



      Court of Appeals of Indiana | Memorandum Decision 52A05-1703-JV-615 | August 16, 2017   Page 4 of 8
       hearings, the juvenile court committed F.M. to the DOC for placement at the

       Indiana Boys School. This appeal ensued.



                                  Discussion and Decision
[10]   The juvenile court has discretion to choose the specific disposition of a juvenile

       adjudicated a delinquent “subject to the statutory considerations of the welfare

       of the child, the community’s safety, and the Indiana Code’s policy of favoring

       the least harsh disposition.” C.T.S. v. State, 781 N.E.2d 1193, 1202 (Ind. Ct.

       App. 2003). We will not reverse a juvenile court’s disposition unless the

       juvenile court abuses its discretion. Id. The juvenile court abuses its discretion

       if its action is “clearly erroneous and against the logic and effect of the facts and

       circumstances before the court, or the reasonable, probable, and actual

       deductions to be drawn therefrom.” D.B. v. State, 842 N.E.2d 399, 404-05 (Ind.

       Ct. App. 2006).


[11]   Indiana Code Section 31-37-18-6 provides:


               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




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                   (B) close to the parent’s 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;


               (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.


[12]   We have previously noted that this section requires that the juvenile court select

       the least restrictive placement in most situations. D.B., 842 N.E.2d at 405.

       “However, the statute contains language which reveals that under certain

       circumstances a more restrictive placement might be appropriate.” K.A. v. State,

       775 N.E.2d 382, 386-87 (Ind. Ct. App. 2002), trans. denied. Indeed, the statute

       requires placement in the least restrictive setting only if such placement is

       “consistent with the safety of the community and the best interest of the child.”

       I.C. § 31-37-18-6. In other words, “the statute recognizes that in certain

       situations the best interest of the child is better served by a more restrictive

       placement.” K.A., 775 N.E.2d at 387.


[13]   F.M. argues that his probation violations were relatively minor and did not

       justify placement in the DOC. He points out several alleged obstacles to his

       successful completion of probation, that is, his learning disability, mental

       illnesses, and parental omissions. He requests that we remand the matter and
       Court of Appeals of Indiana | Memorandum Decision 52A05-1703-JV-615 | August 16, 2017   Page 6 of 8
       order that the juvenile court place him in a less-restrictive environment,

       preferably George Junior. He stops short of arguing that this facility has a

       current opening or would accept him back.


[14]   F.M.’s probation officer testified that F.M. had initially been released to

       Mother’s custody; he jumped out of the vehicle and absconded. He was placed

       in various facilities, including Kinsey Youth Center, White’s, a secure youth

       center in Muncie, and George Junior. While in Mother’s custody, F.M. refused

       to do his schoolwork, although the requirements and hours had been modified

       due to F.M.’s learning disabilities and mental health diagnoses. According to

       Mother, F.M. would feign sickness to avoid school. She testified that she drove

       F.M. to the Salvation Army to perform community service. Nonetheless,

       Salvation Army employees testified that F.M. was not signing in as expected. It

       appeared that he was getting out of Mother’s vehicle, entering the Salvation

       Army building, leaving, and then later calling Mother for a ride home. On

       numerous occasions, F.M. refused to return home as directed and keep Mother

       informed of his whereabouts. Mother testified that she could not control F.M.


[15]   The placement statute requires placement in the least restrictive setting only if

       such placement is “consistent with the safety of the community and the best

       interest of the child.” I.C. § 31-37-18-6. Here, the juvenile court heard that a

       series of less-restrictive options (including home detention, electronic

       monitoring, supervised probation, secure detention, and non-secure detention)

       had not been effective. F.M.’s probation officer opined that placement in the



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       DOC was in F.M.’s best interests. In light of this evidence, we cannot say that

       the juvenile court abused its discretion.


[16]   Affirmed.


       Baker, J., and Altice, J., concur.




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