      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),                                      FILED
      this Memorandum Decision shall not be
      regarded as precedent or cited before any                              Jan 15 2019, 9:41 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.


      ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Valerie K. Boots                                          Curtis T. Hill, Jr.
      Deborah Markisohn                                         Attorney General of Indiana
      Marion County Public Defender Agency                      Marjorie H. Lawyer-Smith
      Indianapolis, Indiana                                     Deputy Attorney General
                                                                Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      E.J.,                                                     January 15, 2019
      Appellant-Respondent,                                     Court of Appeals Case No.
                                                                18A-JV-1204
              v.                                                Appeal from the
                                                                Marion Superior Court
      State of Indiana,                                         The Honorable
      Appellee-Petitioner.                                      Gary Chavers, Judge Pro Tempore
                                                                Trial Court Cause No.
                                                                49D09-1512-JD-2273



      Kirsch, Judge.


[1]   E.J. appeals his placement with the Indiana Department of Correction (“the

      DOC”) following the modification of his disposition after he admitted to


      Court of Appeals of Indiana | Memorandum Decision 18A-JV-1204 | January 15, 2019                Page 1 of 12
      robbery while armed with a deadly weapon,1 which would be a Level 3 felony if

      committed by an adult. E.J. raises the following issue for our review: whether

      the juvenile court abused its discretion when it ordered his placement in the

      DOC because he asserts it was not the least restrictive placement.


[2]   We affirm.


                                      Facts and Procedural History
[3]   E.J. first became involved with the juvenile court system at thirteen years old

      when he had a true finding for harassment, which would have been a Class B

      misdemeanor if committed by an adult. Appellant’s App. Vol. II at 101. As a

      result of that true finding, E.J. was ordered to obtain a substance abuse

      evaluation and treatment and to participate in drug testing. Id. at 50. Several

      months later, the State filed a petition alleging that E.J. possessed marijuana, a

      Class B misdemeanor if committed by an adult, but the juvenile court did not

      authorize the filing of the petition. Id. at 49, 101. Two weeks later, the State

      rejected prosecution on another case involving allegations of criminal gang

      activity, a Level 6 felony if committed by an adult, and disorderly conduct, a

      Class B misdemeanor if committed by an adult. Id. at 49, 101.


[4]   When he was fourteen years old, and while on probation for his delinquency

      adjudication for harassment, E.J. was charged on December 14, 2015, with




      1
          See Ind. Code § 35-42-5-1(a).


      Court of Appeals of Indiana | Memorandum Decision 18A-JV-1204 | January 15, 2019   Page 2 of 12
      armed robbery, which would be a Level 3 felony if committed by an adult,

      carrying a handgun without a license, a Class A misdemeanor if committed by

      an adult, and dangerous possession of a firearm, a Class A misdemeanor if

      committed by an adult. Id. at 45. While in detention for these offenses, E.J.

      was placed in disciplinary isolation five times within the first few weeks and

      received incident reports for failing to follow staff direction, having contraband

      in his room, and disrespectful behavior. Id. at 71. Despite these incidents, E.J.

      was released from detention on electronic monitoring on January 8, 2016. On

      April 7, 2016, he entered an admission to having committed armed robbery,

      which would have been a Level 3 felony if committed by an adult. Id. at 113-

      15. The juvenile court placed E.J. on probation with a suspended commitment

      to the DOC. Id. at 113-17.


[5]   Thereafter, the State filed eleven petitions to modify the disposition, six of

      which were found true. Id. at 41. As a result of the modifications, E.J. was

      ordered to participate in numerous programs and services, including formal

      probation, electronic monitoring, Youth Advocate Program, psychological

      assessments and evaluations, supervised release, parent-monitored curfew, drug

      testing, substance abuse evaluations, substance abuse counseling, suspended

      commitment to the DOC, mentoring, tutoring, and several other programs.

      Appellant’s App. Vol. III at 151.


[6]   Over the three years since E.J. was placed on probation, he has had repeated

      instances of drug use, almost all involving the use of marijuana. Appellant’s App.

      Vol. II at 128, 131, 134, 200, 215, 220; Appellant’s App. Vol. III at 27, 37-38.

      Court of Appeals of Indiana | Memorandum Decision 18A-JV-1204 | January 15, 2019   Page 3 of 12
      E.J.’s first drug-related probation violation occurred in May 2016 where he

      tested positive for marijuana on a random drug screen. Appellant’s App. Vol. II

      at 128. Two weeks later, he was arrested for possession of marijuana, a Class B

      misdemeanor if committed by an adult, although the case was not filed by the

      prosecutor. Id. The May 2016 violation resulted in sanctions, including taking

      bi-weekly drug tests until he had three consecutive negative tests and working

      with his service provider to set up a substance abuse evaluation and to complete

      its recommendations. Id.


[7]   Over the next year, E.J. continued to use marijuana. In July 2016, he had a

      positive drug screen. Id. at 131. A substance abuse evaluation performed in

      August 2016 as part of a petition to modify E.J.’s disposition noted he had a

      moderate risk of substance use and a history of substance abuse and positive

      drug screens. Id. at 136-37. The evaluation recommended that E.J. receive

      substance abuse treatment. Id. at 140-41. On August 11, 2016, the probation

      department filed a petition for modification of disposition, which noted that

      E.J. was involved in an incident at Lawrence Central High School concerning a

      vehicle that contained loaded handguns and marijuana. Id. at 150. The

      juvenile court subsequently found the petition to modify was not true and

      closed the petition. Id. at 215.


[8]   On December 2, 2016, the probation department filed a petition to modify

      disposition, which alleged that, in October 2016 and November 2016, E.J.

      tested positive for THC during random drug tests. Id. at 199-200. On



      Court of Appeals of Indiana | Memorandum Decision 18A-JV-1204 | January 15, 2019   Page 4 of 12
       December 28, 2016, E.J. admitted to these positive drug screens and was

       ordered to participate in weekly substance abuse counseling. Id. at 215-19.


[9]    In January 2017, E.J. again tested positive for marijuana. Id. at 220. During

       February and March 2017, E.J. was participating in substance abuse counseling

       with Offer a Hand Up during weekly sessions. Appellant’s App. Vol. III at 2-3,

       21. However by April 2017, E.J. again tested positive for marijuana. Id. at 27.

       E.J. told his probation officer that he knew it was wrong to use marijuana, but

       he was dealing with grief and loss caused by friends he had lost to gun violence.

       Id. E.J.’s treatment plan was modified to include twice weekly substance abuse

       sessions and grief counseling services. Id. at 28, 31.


[10]   In June 2017, the probation department filed another petition to modify

       disposition, alleging that E.J. again tested positive for marijuana, and for the

       first time, had also tested positive for cocaine; he was subsequently taken into

       custody. Id. at 37. At that time, E.J. reported that his substance abuse

       counselor met with him at school and just gave him drug screens, but “barely

       spoke with him about substance abuse.” Id. at 43. In July 2017, E.J. completed

       a substance abuse assessment and began attending weekly sessions with a new

       service provider. Id. at 66, 68. After several months, those services ended but

       he continued to receive home-based substance abuse services. Id. at 73. E.J.

       had one positive drug screen for marijuana in September 2017 but was clean at

       his next screen and continued to receive home-based substance abuse services.

       Id. In October 2017, E.J. had another positive drug screen for marijuana, and



       Court of Appeals of Indiana | Memorandum Decision 18A-JV-1204 | January 15, 2019   Page 5 of 12
       the probation department filed for another verified petition for modification of

       disposition. Id. at 76, 86-87.


[11]   On November 9, 2017, the probation department filed another petition for

       modification of disposition, alleging that on November 8, 2017, E.J. was

       arrested, along with his mother and older brother, on drug-related charges. Id.

       at 97-98, 130. The prosecutor rejected filing any charges against E.J.; rather the

       modification was based on the positive drug screens. Id. at 98. E.J. was

       released into the custody of his maternal grandmother and again ordered to

       participate in services. Id. at 122-23. In December 2017, a psychological

       evaluation indicated a diagnosis of cannabis use disorder that was mild and in

       remission due to restricted access. Id. at 131. By January 2018, he was

       participating in substance abuse therapy two to three times a week, and at that

       time, probation recommended an intensive outpatient program to address his

       drug use. Id.


[12]   The most recent petition for modification was filed on March 7, 2018 and

       alleged that E.J. had violated the conditions of his suspended commitment to

       the DOC. Id. at 153-54. The juvenile court conducted a fact-finding hearing on

       April 12, 2018, and the parties reached an agreement under which E.J.

       admitted violating the conditions of his probation by testing positive for

       marijuana and amphetamines and in exchange the State dismissed all other

       pending matters. Tr. Vol. II at 4-5. At the subsequent modification of

       disposition hearing on April 27, 2018, the juvenile court ordered that E.J. be

       committed to the DOC with a recommended period of twelve months. Id. at

       Court of Appeals of Indiana | Memorandum Decision 18A-JV-1204 | January 15, 2019   Page 6 of 12
       19; Appellant’s App. Vol. II at 39-42. The juvenile court also ordered E.J. to

       participate in the Transition from Restrictive Placement (“TRP”) program upon

       his release. Tr. Vol. II at 19; Appellant’s App. Vol. II at 39. In doing so, the

       juvenile court reasoned:


               The . . . Probation Department, and the providers, and the Court
               has [sic] tried and tried and tried to try to make things to work.
               And first of all, we have to remember his charge under complaint
               four was an armed robbery, and yet community-based services
               were started way back then. He has had five modification
               petitions found true since then. There are others filed that were
               dismissed and a couple found not true. So, when I look at his,
               I’m wondering whether we did the right thing two years ago or
               not, and whether we did not adequately hold him accountable. I
               also note that despite all these community-based services, his
               latest Indiana Youth Assessment Disposition Tool is for a high-
               risk to re-offend. So, when I look at everything here . . . he will
               be committed to the [DOC] today for placement at Juvenile
               Correctional Facility. . . . We will order the TRP services, the
               Court will recommend a period of 12 months at the [DOC].
               How long you’re there however, is up to you and the [DOC].
               The legal commitment’s up to your 21st birthday unless sooner
               released, the average stay is usually about 6 to 9 months. . . .
               This is the least restrictive alternative consistent with public
               safety and best interest of the child.


       Tr. Vol. II at 18-19. E.J. now appeals.


                                      Discussion and Decision
[13]   E.J. argues that the juvenile court abused its discretion when it awarded

       guardianship of him to the DOC when there was a less restrictive disposition

       available. Specifically, E.J. contends that the juvenile court should have

       Court of Appeals of Indiana | Memorandum Decision 18A-JV-1204 | January 15, 2019   Page 7 of 12
       ordered that he be placed in intensive, inpatient therapy, which would have

       “furthered public safety by helping [him] overcome his dependence on

       marijuana and would have been in the best interest of the child.” Appellant’s Br.

       at 21. He asserts that placement in the DOC is not the least restrictive

       placement and is not in his best interests because “it fails to address his

       continuing problem with drug use which underlies his delinquent behavior.”

       Id.


[14]   “A juvenile court is accorded ‘wide latitude’ and ‘great flexibility’ in its dealings

       with juveniles.” J.T. v. State, 111 N.E.3d 1019, 1026 (Ind. Ct. App. 2018)

       (citing J.S. v. State, 881 N.E.2d 26, 28 (Ind. Ct. App. 2008)). The 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.


[15]   The goal of the juvenile process is rehabilitation rather than punishment. Id.

       “‘Accordingly, juvenile courts have a variety of placement choices for juveniles

       who have delinquency problems, none of which are considered sentences.’” Id.

       (quoting R.H. v. State, 937 N.E.2d 386, 388 (Ind. Ct. App. 2010)). Indiana

       Code section 31-37-18-6(1)(A) provides that “[i]f consistent with the safety of

       Court of Appeals of Indiana | Memorandum Decision 18A-JV-1204 | January 15, 2019   Page 8 of 12
       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 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 (citing K.A. v. State, 775 N.E.2d 382, 387

       (Ind. Ct. App. 2002), trans. denied). 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.” J.T., 111 N.E.3d at 1026

       (citing D.S. v. State, 829 N.E.2d 1081, 1085 (Ind. Ct. App. 2005)).


[16]   At the time of the disposition in this case, E.J.’s delinquency history consisted

       of true findings for harassment, a Class B misdemeanor if committed by an

       adult, and armed robbery, a Level 3 felony if committed by an adult, and

       multiple probation violations. Over the course of the three years since E.J.

       entered the juvenile court system at thirteen years old, several other allegations

       were rejected, dismissed, or not filed. Appellant’s App. Vol. III at 177. During

       those three years, E.J. had numerous and repeated instances of drug use, almost

       all of which involved the use of marijuana. Appellant’s App. Vol. II at 128, 131,

       134, 200, 215, 220; Appellant’s App. Vol. III at 27, 37-38. He had psychological

       and substance abuse assessments and had participated in substance abuse

       counseling of various kinds. Appellant’s App. Vol. II at 136-37, 218-19, 223, 236;

       Appellant’s App. Vol. III at 66, 68, 73, 131.


[17]   Although E.J. contends that an inpatient substance abuse treatment program

       would be the least restrictive placement and that the juvenile court should have

       Court of Appeals of Indiana | Memorandum Decision 18A-JV-1204 | January 15, 2019   Page 9 of 12
       ordered him placed there, he has neither shown that an inpatient program

       would have accepted him nor that there is a reasonable probability that an

       inpatient program would have benefitted him. These facts alone show that the

       juvenile court was not required to consider such treatment as the only possible

       disposition considering all of the other evidence presented. Consideration of

       E.J.’s marijuana use does not override other concerns necessitating a more

       restrictive placement. Indiana Code section 31-37-18-6 provides that the trial

       court is only required to consider the least restrictive placement if that

       placement comports with the safety needs of the community and the child’s best

       interests. See J.B. v. State, 849 N.E.2d 714, 717-18 (Ind. Ct. App. 2006)

       (concluding that the trial court did not abuse its discretion when it committed

       the juvenile to the DOC because the less-restrictive placement suggested by him

       would have fallen short of meeting the community’s safety needs). In J.B., we

       stated, “Although we are sympathetic with those struggling to overcome drug

       addictions and in no way wish to diminish their plight, we are mindful of the

       impact their actions might have on community safety.” J.B., 849 N.E.2d at 718.


[18]   Here, in continuing to commit new offenses and violate his prior suspended

       commitment to the DOC, E.J. has demonstrated a lack of respect for the law

       and an absence of understanding the seriousness of his conduct. He continued

       to commit new offenses, failed previous attempts at electronic monitoring and

       parent-monitored curfew, had numerous administrative hearings while on

       probation, used controlled substances, was potentially involved with a gang,

       was suspended from school for fighting, and posted pictures and videos of


       Court of Appeals of Indiana | Memorandum Decision 18A-JV-1204 | January 15, 2019   Page 10 of 12
       himself on social media holding a firearm and consuming illegal substances.

       Tr. Vol. II at 11-14. The juvenile court previously ordered formal probation

       numerous times and formal probation with a suspended commitment to the

       DOC more than once. Appellant’s App. Vol. III at 75-76. E.J.’s overall risk

       assessment to reoffend was high at the end of 2017 and it remained so in 2018.

       Id. at 134, 165. Although previously ordered to shut down his social media

       accounts, in February 2018, E.J. posted a video on social media that showed

       him smoking marijuana while driving, and he made a post soliciting the

       purchase of a firearm on social media in March of 2018. Id. at 154.

       Additionally, in March 2018, a petition for modification of disposition was filed

       after E.J. was charged with possession of marijuana after a traffic stop, in which

       several firearms were found in the vehicle. Id. at 162.


[19]   Although we sympathize with E.J.’s substance abuse issues and acknowledge

       that he is struggling with significant problems, important concerns were raised

       regarding community safety and E.J.’s need for a secure and structured

       environment. These concerns were based on his continued rejection of less

       restrictive dispositional alternatives attempted by the juvenile court and the

       violent nature of the underlying crime of armed robbery and other dangerous

       behavior demonstrated by E.J. Our court has previously found that the

       commitment of a juvenile to the DOC was not an abuse of discretion where the

       juvenile had been offered numerous avenues for rehabilitation but had

       “continued to reoffend and disrespect the rule of law and his fellow citizens.”

       See J.J. v. State, 925 N.E.2d 796, 802 (Ind. Ct. App. 2010), trans. denied.


       Court of Appeals of Indiana | Memorandum Decision 18A-JV-1204 | January 15, 2019   Page 11 of 12
[20]   We conclude that it was reasonable for the juvenile court to find that the many

       services offered to E.J. had not been successful and that he posed a danger to

       both himself and to the community. Because of the serious nature of E.J.’s

       underlying offense of armed robbery, the volume of his subsequent criminal

       conduct, and the likelihood that he will reoffend, we find that the juvenile court

       was within its discretion to conclude that commitment to a less restrictive

       environment than the DOC was not in the best interest of E.J. or consistent

       with safety of the community. The juvenile court did not abuse its discretion

       when it ordered E.J.’s placement in the DOC.


[21]   Affirmed.


       Vaidik, C.J., and Riley, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-JV-1204 | January 15, 2019   Page 12 of 12
