MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                             FILED
this Memorandum Decision shall not be
                                                                              Jul 29 2020, 11:18 am
regarded as precedent or cited before any
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
R. Patrick Magrath                                        Curtis T. Hill, Jr.
Madison, Indiana                                          Attorney General of Indiana

                                                          Marjorie Lawyer-Smith
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                            IN THE
    COURT OF APPEALS OF INDIANA

K.B.,                                                     July 29, 2020
Appellant,                                                Court of Appeals Case No.
                                                          20A-JV-72
        v.                                                Appeal from the
                                                          Jennings Circuit Court
State of Indiana,                                         The Honorable
Appellee.                                                 Jonathan W. Webster, Judge
                                                          Trial Court Cause No.
                                                          40C01-1907-JD-11



Altice, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A-JV-72 | July 29, 2020                            Page 1 of 10
                                              Case Summary
[1]   K.B. was adjudicated a delinquent child and placed on probation by

      dispositional decree. After he admitted to committing acts that violated the

      dispositional decree, the State sought to modify the disposition and place K.B.

      at the Indiana Boys School. All parties, including K.B., expressed agreement

      with the modification, and the juvenile court entered an order committing K.B.

      to the Indiana Boys School. K.B. argues on appeal that the State failed to

      demonstrate that less restrictive placements were unavailable, and, therefore,

      the decision to commit him to the Indiana Boys School was an abuse of

      discretion.


[2]   We affirm.


                                   Facts & Procedural History
[3]   In June 2019, fourteen-year-old K.B. was living at Lutherwood Children’s

      Home (Lutherwood) pursuant to a Jennings County Department of Child

      Services (DCS) placement. On June 23, 2019, K.B. punched a staff person in

      the face twice. Lutherwood gave DCS thirty days to remove K.B. from the

      facility. On July 24, 2019, the State filed a delinquency petition alleging that

      K.B. committed an act that if committed by an adult would be Class A

      misdemeanor battery causing bodily injury.


[4]   On July 24, 2019, a detention hearing was held. The State advised that the

      parties had reached an agreement in which K.B. would be held in the Clark

      County Juvenile Detention Center for six days, at which time he would either

      Court of Appeals of Indiana | Memorandum Decision 20A-JV-72 | July 29, 2020   Page 2 of 10
      be returned home or remain in detention, depending on his conduct. K.B.’s

      home was with guardians, J.P. and his wife A.P. (Guardians), who had raised

      K.B. since he was four years old. 1


[5]   On September 17, 2019, the parties appeared for what was scheduled as a

      pretrial conference but turned into an admission and dispositional hearing. At

      the beginning of the hearing, Jennings County probation officer Andrew Judd

      advised the court that the parties had reached an agreement. Specifically, K.B.

      would enter an admission that he was a delinquent child in exchange for

      placement on probation for twelve months with various conditions including

      that K.B. was required to attend school, have no unexcused absences, and take

      all prescribed medications. In addition, K.B. would be placed at a therapeutic

      foster home in Portage, Indiana.


[6]   The court separately asked the guardian ad litem (GAL) Tamra Wright, DCS

      family case manager (FCM) Michelle Shepherd, and K.B.’s counsel

      Christopher Doran, whether they agreed with the proposed disposition, and

      each stated his or her agreement. The juvenile court explained to K.B. what

      rights he was giving up by admitting to the offense, including the right to appeal

      the delinquency findings and disposition. K.B. waived these rights and then

      admitted to punching the Lutherwood staff worker, a Class A misdemeanor

      battery if committed by an adult, and the court approved the agreed disposition.




      1
       The record reflects that the whereabouts of K.B.’s father were unknown and his mother was believed to be
      homeless and living in Kentucky.

      Court of Appeals of Indiana | Memorandum Decision 20A-JV-72 | July 29, 2020                   Page 3 of 10
      The next day the court issued a dispositional decree committing K.B. to the

      Indiana Boys School for twelve months, all suspended, during which time he

      would be on juvenile probation with the various conditions. K.B. did not

      appeal the dispositional decree.


[7]   On October 25, 2019, the juvenile probation department filed a modification

      report requesting modification of the disposition decree and placement in the

      Indiana Boys School. The report alleged that K.B. had violated his probation

      by failing to go to school on six occasions, possessing a pocket knife and

      refusing to give it to his foster parent, running away from his foster home and

      only returning with law enforcement, and failing to take his medications. The

      therapeutic foster parent had submitted a letter on October 16, 2019 to the

      placement agency providing thirty days’ notice that K.B. could no longer live at

      the foster residence due to concerns about the safety of others living there. The

      court set the matter for hearing on January 6, 2020 and ordered that K.B. be

      detained at the Clark County Juvenile Detention Center.


[8]   On November 19, 2019, the juvenile court held a detention/placement hearing.

      Guardians initially were not present, but probation officer Judd advised the

      court that he had spoken with Guardians who indicated that K.B. could not

      return to their home due to violent behavior, and Guardians later arrived in

      court and confirmed that they were unwilling to take K.B. back into their home.

      Judd requested that K.B. remain in detention until a hearing could be held, and

      DCS counsel Harriett Cable agreed with that proposal. Doran asked the court

      for foster placement. The court agreed that foster placement was “a great idea

      Court of Appeals of Indiana | Memorandum Decision 20A-JV-72 | July 29, 2020   Page 4 of 10
      but do we have one?” Transcript at 22. Doran, Judd, and Cable each stated that

      he or she was not aware of any available foster placement. FCM Shepherd told

      the court that the therapeutic foster placement in Portage “was the only one we

      were able to find who would accept him and, um, there are not others that are

      willing to accept him that I have found.” Id. at 23. A representative from the

      GAL office indicated that “typically, we feel like a foster home is a better

      placement” than detention, to which the court responded, “I think everyone in

      the room agrees with that . . . but the one we had is now gone.” Id. The State’s

      position was that K.B. violated probation and should go to the Indiana Boys

      School “if we can’t find a better alternative” because the Boys School “has the

      wherewithal to treat him and to address his issues.” Id. at 24. After Doran

      urged that K.B. had been in respite care previously, and K.B. believed he could

      do well there, FCM Shepherd stated she would contact the National Youth

      Advocate Program (NYAP), a placement agency, about any available respite

      care, and Judd noted, “NYAP kicked [K.B.] out of their program” previously.

      Id. at 25. The juvenile court determined that “unfortunately, there is nothing

      else I can do today other than send [K.B.] back to detention” until the next

      hearing, reminding K.B. that the parties would try to “get something worked

      out” but “so much is in your hands.” Id. at 26. The court advanced the

      January 6, 2020 hearing to December 2, 2019.


[9]   On December 2, the parties appeared for the modification of disposition

      hearing. K.B. admitted to violating the terms of the dispositional decree. The

      juvenile court asked, “Is there an agreed disposition?” and the State replied,


      Court of Appeals of Indiana | Memorandum Decision 20A-JV-72 | July 29, 2020   Page 5 of 10
        Judge, there is. He’ll be committed to the Indiana Boy[s] School.
        I think everybody’s in agreement that he should, that’s where he
        needs to be, and that it’s the best option for treatment at this
        time.


Id. at 30. The court then asked the various parties to confirm their agreement to

the proposal. Judd stated that probation agreed with that disposition and

mentioned “the additional wrinkle” that K.B. was “kicked out of Clark County

Juvenile Detention Center effective today.” Id. Doran stated that he concurred

with the disposition to Indiana Boys School, and then the court directly asked

K.B., “[I]s that your agreement?” and K.B. replied, “Yes.” Id. GAL Wright

expressed that, “unfortunately, yes”, the Indiana Boys School was the best and

only option. Id. FCM Shepherd affirmed her position that it was the only

suitable disposition. The juvenile court issued the modified dispositional order

on December 2, 2019, ordering that “[b]y agreement of the parties, the child

shall now be committed to the Indiana Department of Correction, Indiana Boys

School” and directing that K.B. be transported from the Johnson County

Juvenile Detention Center2 to the Indiana Boys School on December 4, 2019.

Appellant’s Appendix Vol. 2 at 62. K.B. received permission to file a belated

appeal.




2
  Because K.B. could not return to the Clark County Juvenile Detention Center, K.B. was temporarily placed
in the Johnson County Juvenile Detention Center until being moved to the Indiana Boys School.

Court of Appeals of Indiana | Memorandum Decision 20A-JV-72 | July 29, 2020                   Page 6 of 10
                                        Discussion & Decision
[10]   Initially, we address the State’s argument that, pursuant to our Supreme Court’s

       decision in J.W. v. State, 113 N.E 3d 1202, 1207 (Ind. 2019), K.B. cannot

       challenge his placement on direct appeal because he agreed to it. In J.W., a

       juvenile admitted to committing what would be Class B misdemeanor false

       informing if committed by an adult and agreed to placement in the Indiana

       Department of Correction. “Despite the parties’ consent judgment, . . . J.W.

       appealed, arguing that his agreed delinquency judgment should be set aside[.]”

       Id. at 1205. On transfer, our Supreme Court clarified that, just as adult criminal

       defendants cannot challenge the validity of a guilty plea on direct appeal,

       juveniles cannot immediately challenge on direct appeal any errors concerning

       their agreed adjudication. The Court issued the following “bright line rule”:


               A juvenile’s claim that his agreed delinquency adjudication is
               unlawful, along with any claim premised on the agreement’s
               illegality, cannot be raised on direct appeal. Such claims must
               first be brought in the juvenile court in a post-judgment motion
               under Rule 60.


       Id. at 1208. The Court dismissed J.W.’s appeal without prejudice and

       remanded to the trial court for further proceedings.


[11]   The State urges that, here, “to the extent that [K.B.’s] challenge to the

       disposition as an abuse of discretion constitutes a claim that the agreed

       disposition was unlawful[,]” his direct appeal should be dismissed, or,

       alternatively, should we reach the merits, his claim was not an abuse of


       Court of Appeals of Indiana | Memorandum Decision 20A-JV-72 | July 29, 2020   Page 7 of 10
       discretion. Appellee’s Brief at 9. K.B.’s appellate argument appears to be, not

       that an agreed adjudication was unlawful, but, rather, that he did not actually

       agree to the adjudication, i.e., his affirmative response to the court’s “[K.B.], is

       that your agreement?” did not reflect agreement since he had no other options

       and that the placement was an abuse of discretion. See Appellant’s Brief at 8

       (stating that “[a]lthough he ‘agreed’ to be placed at the Indiana Boys School, he

       was given no real choice[,] as no alternative placements were offered or

       discussed”). Assuming for the moment that we agree with K.B. that he is not

       appealing an agreed adjudication – and we do not make that express

       determination – we find no error in the juvenile court’s decision to commit K.B.

       to the Indiana Boys School.


[12]   The choice of the specific disposition of a juvenile adjudicated a delinquent

       child is a matter within the discretion of the juvenile court. J.S. v. State, 881

       N.E.2d 26, 28 (Ind. Ct. App. 2008). Accordingly, we will only reverse where

       the juvenile court has abused that discretion. Id. An abuse of discretion occurs

       when the juvenile court’s action is against the logic and effect of the facts and

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

       inferences that can be drawn therefrom. Id. Thus, the juvenile court is

       accorded wide latitude and great flexibility in its dealings with juveniles. Id.

       However, the juvenile court’s discretion is subject to the following statutory

       considerations:




       Court of Appeals of Indiana | Memorandum Decision 20A-JV-72 | July 29, 2020   Page 8 of 10
               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;


               (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.


[13]   K.B. argues that the juvenile court’s decision to place him at the Indiana Boys

       School was an abuse of discretion because “there was no evidence of efforts to

       secure a less restrictive placement.” Appellant’s Brief at 8. We disagree.

       Alternative placements, or more precisely, the lack thereof was discussed at

       both the November 19 and December 2 hearings. By November 19, K.B. was

       residing at the Clark County Juvenile Detention Center after the foster parent


       Court of Appeals of Indiana | Memorandum Decision 20A-JV-72 | July 29, 2020     Page 9 of 10
       on October 16, 2019 provided notice that K.B. needed to be removed in thirty

       days due to safety concerns. The juvenile court at the November 19 hearing

       asked the various parties about possible placements other than the Indiana Boys

       School, and Doran, Judd, and Cable each stated that they knew of no available

       less-restrictive options. FCM Shepherd told the court that the therapeutic foster

       placement in Portage “was the only one” she could find who would accept K.B.

       Transcript at 23. Effective December 2, K.B. was expelled from the Clark

       County Juvenile Detention Center due to his conduct. At the December 2

       modification of disposition hearing, FCM Shepherd and GAL Wright affirmed

       that placement at the Indiana Boys School was the only suitable option. We

       find that the juvenile court’s decision to commit K.B. to the Indiana Boys

       School was reasonable given the facts and circumstances before it and thus was

       not an abuse of discretion.


[14]   Judgment affirmed.


       Bailey, J. and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A-JV-72 | July 29, 2020   Page 10 of 10
