MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                                   FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                                  Oct 17 2019, 10:53 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
Kimberly A. Jackson                                       Curtis T. Hill, Jr.
Indianapolis, Indiana                                     Attorney General of Indiana
                                                          J.T. Whitehead
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

A.K.,                                                     October 17, 2019
Appellant,                                                Court of Appeals Case No.
                                                          19A-JV-1110
        v.                                                Appeal from the Miami Superior
                                                          Court
State of Indiana,                                         The Honorable Daniel C. Banina,
Appellee.                                                 Judge
                                                          Trial Court Cause No.
                                                          52D02-1706-JD-15



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-JV-1110 | October 17, 2019                     Page 1 of 14
[1]   A.K. appeals the juvenile court’s dispositional order. He raises two issues

      which we revise and restate as whether the court denied him due process or

      abused its discretion in awarding wardship of him to the Indiana Department of

      Correction (the “DOC”). We affirm.

                                      Facts and Procedural History

[2]   In June 2017, the State filed a Petition Alleging Delinquency which alleged that

      A.K., who was born in August 2002, committed two acts of child molesting

      which would constitute level 3 felonies if committed by an adult. On August

      23, 2017, the court held a hearing at which A.K. admitted to the allegations

      contained in one of the counts and the court dismissed the other count. A.K.

      admitted that he knowingly submitted to sexual conduct with B.C.N., a person

      he knew was eleven years old, and the conduct was video recorded using a

      school laptop. The parties stipulated to the admission of the probable cause

      affidavit for purposes of supplementing the factual basis. According to the

      affidavit, school staff discovered video recordings on B.C.N.’s school-issued

      laptop, the recordings depicted B.C.N. and his fourteen-year-old half-brother

      A.K. exposing themselves, and in one of the recordings, B.C.N. performed oral

      sex on A.K. The court found A.K. to be delinquent and ordered that he be

      placed at White’s Residential and Family Services in its sexually maladaptive

      youth program.


[3]   The juvenile court held review hearings on November 22, 2017, and February

      21, 2018, and ordered that A.K. remain at White’s Residential. On May 16,

      2018, the court held a review hearing at which A.K’s probation officer testified
      Court of Appeals of Indiana | Memorandum Decision 19A-JV-1110 | October 17, 2019   Page 2 of 14
      that A.K. had not progressed very quickly in treatment, his behavior was not

      easy to manage, he had “been mouthy with staff,” he snuck a turtle and a frog

      into his room, he was “defiant in general,” and that, despite multiple warnings

      to stop “horse playing with other residents,” he climbed on someone, fell, and

      broke his arm, resulting in surgery. Transcript Volume II at 23. The court did

      not change A.K.’s placement and told him that “the longer you decide to not go

      with the program, . . . the longer you’re going to be there or someplace else.”

      Id. at 26. On August 15, 2018, the court held a review hearing at which the

      prosecutor indicated that he had been notified that White’s Residential was

      considering removing A.K. from its program and that he anticipated a violation

      would be filed.


[4]   On August 17, 2018, the State filed a petition for modification of dispositional

      decree alleging that A.K. violated the conditions of his probation by failing to

      obey all terms and conditions of programming at White’s Residential resulting

      in unsuccessful termination from the program. The modification report stated

      that A.K. had been placed at White’s Residential for almost one year, he was

      placed in the sexually maladaptive youth program, he was refusing to complete

      treatment, and that his behaviors had escalated to the point he was no longer

      manageable at White’s Residential. On August 22, 2018, the court held a

      hearing at which A.K. admitted that he failed to comply with the terms and

      conditions of the program. He admitted there were five major offenses between

      July 3rd and July 23rd, including that he was “out of bounds” twice, hit a peer

      in the groin, sharpened a crochet hook into a weapon, and brought unapproved


      Court of Appeals of Indiana | Memorandum Decision 19A-JV-1110 | October 17, 2019   Page 3 of 14
      items back from campus visitation. Id. at 36. The court found that A.K.

      violated his probation by being unsuccessfully discharged from White’s

      Residential and ordered that he be temporarily placed at the Robert J. Kinsey

      Youth Center. On August 29, 2018, the court held a placement hearing at

      which it was informed that A.K. had been accepted at Oaklawn, the Children’s

      Campus. On September 13, 2018, the court issued an agreed order on

      placement that A.K. be released from Kinsey to Oaklawn for the purpose of

      residential placement.


[5]   On December 17, 2018, A.K.’s probation officer filed a placement review and

      attached October and November 2018 monthly treatment reports. A report

      dated November 1, 2018, states that A.K. made minimal progress and that

      there were thirteen incidents to report in the period, including that on October

      14th and 25th, he was physically aggressive toward staff, on October 15th he

      was not following unit structure and used a paper towel with paint on it to

      cover up the safe room window and attempted to push past staff which resulted

      in a restraint, on October 25th he attempted to engage in property destruction

      and tied clothing around his neck resulting in a restraint and seclusion, on

      October 7th and 20th he engaged in self-harm behaviors, on October 16th he

      attempted to elope, on October 9th and 11th he punched a wall until his

      knuckles bled and was treated by the nurse, and on October 27th he had to

      review the rules of masturbation with staff after telling them he went over

      shower time because he was masturbating in the shower. A report dated

      December 1, 2018, states that A.K. made minimal progress and that there were


      Court of Appeals of Indiana | Memorandum Decision 19A-JV-1110 | October 17, 2019   Page 4 of 14
      ten incidents to report in the period, including that on November 17th he

      attempted to engage in property destruction but was stopped by staff, on

      November 8th, 13th, and 30th he engaged in physical aggression toward staff,

      on November 15th, 19th, and 26th he engaged in property destruction

      behaviors, on November 30th he tied a shirt around his neck, on November 6th

      he attempted to be physically aggressive towards a peer, and on November 27th

      he refused to go to his room when directed, during the incident saw a female

      staff member’s cleavage, and later told a peer about the incident and engaged in

      inappropriate sexual talk.


[6]   On December 19, 2018, the court held a placement review hearing at which

      A.K.’s probation officer testified that, until the previous two or three weeks,

      A.K. “was doing pretty horribly,” that she “was receiving multiple incident

      reports daily regarding his behavior, [] destroying property, being out of

      bounds, [] some inappropriate sexual activities, [and] blatant back talk,” and

      “he just seems to have turned it around here recently.” Id. at 50. She indicated

      that, in the prior two weeks, she received one or two incident reports. She

      indicated that, in order for him to make progress towards returning home, he

      had to follow the rules, that he was in “group B” which was very structured for

      those who had been causing a lot of trouble in the group environment, that

      “he’s got to get some of those restrictions off,” and “he is working towards

      doing that by participating.” Id. at 50-51. She indicated that A.K. had a

      weighted blanket for two weeks, that it helped him with his anxiety, there are

      times he wraps himself up in it so that just his face is out, and that he talked


      Court of Appeals of Indiana | Memorandum Decision 19A-JV-1110 | October 17, 2019   Page 5 of 14
      about how it helped him to think before he acts. The court ordered that A.K.

      remain at Oaklawn.


[7]   On March 15, 2019, the State filed a Verified Petition for Modification of

      Dispositional Decree alleging that A.K. had failed to obey all terms and

      conditions of programming at Oaklawn resulting in unsuccessful termination

      from the program. On March 20, 2019, the court held a modification hearing.

      The court asked A.K.’s counsel if there was an objection to A.K. being placed

      in secure detention pending further hearing, and counsel stated that ultimately

      they knew that was what was going to happen but that it was important for the

      representative from Oaklawn to testify as to what went wrong. A.K.’s care

      facilitator at Oaklawn testified that A.K. was unsuccessfully terminated from its

      program and that they had done a lot of creative thinking with him and placed

      extra support to help him be successful. She testified that A.K.’s therapist talked

      to him about the programming and they determined that he made poor choices

      because he wanted to continue receiving extra attention.


[8]   The care facilitator testified that the first four months of A.K.’s treatment

      related to teaching him coping skills so that he could manage his anxiety and

      they then started to work on his trauma which he was not interested in doing.

      She testified that he completed perhaps a month of his treatment at most and

      showed very little if any motivation. When asked if she saw unsafe behavior

      that morning just outside the courtroom, she replied affirmatively and stated

      that, when they were telling him “here’s what’s going on” and “you’ve made

      some poor choices,” his first response was to punch the limestone wall. Id. at

      Court of Appeals of Indiana | Memorandum Decision 19A-JV-1110 | October 17, 2019   Page 6 of 14
       63. She also testified that A.K. engaged in self-harm behaviors, took pieces of

       clothing and wrapped them around his throat, and engaged in some suicidal

       ideation. She indicated he is currently passing classes but is struggling

       behaviorally in school, has been suspended multiple times, and there was an

       incident in February where someone asked him to do something and he refused

       and stayed on the classroom floor for ten or fifteen minutes. She stated that

       A.K. was not advancing or taking advantage of the services at Oaklawn.


[9]    A.K.’s probation officer recommended that A.K. be transferred to Kinsey and

       that an additional hearing be set. His counsel asked the probation officer about

       A.K.’s grandmother as an alternative family placement, and the officer

       indicated that she could speak with the grandmother and noted that she had

       concerns with A.K. being placed in a less restrictive setting. The court placed

       A.K. in secure detention at Kinsey pending the dispositional hearing.


[10]   On April 8, 2019, A.K.’s probation officer filed a predispositional report. The

       report states that A.K. and his parents would like him to be released to his

       grandmother’s custody on home detention. It states that A.K. had been in

       residential placement since 2017, lacks social skills, struggles with peer relations

       and is often defiant with adults, has struggled in the school setting since the first

       grade, was expelled for the first time in the fifth grade, and has continued to

       struggle in the school setting in residential placement. The report states that

       A.K. has been diagnosed with post-traumatic stress disorder, conduct disorder,

       adolescent onset type, and attention deficit hyperactivity disorder, that he has a

       history of sexually maladaptive behaviors, he is also a victim of sexual abuse,

       Court of Appeals of Indiana | Memorandum Decision 19A-JV-1110 | October 17, 2019   Page 7 of 14
       his level of sexual recidivism is high and he has a high level of treatment needs,

       and he is prescribed a number of medications. It states that he participated in a

       psychosexual evaluation prior to placement at White’s Residential, was

       unsuccessfully discharged from there and from Oaklawn, and he received

       treatment for sexually maladaptive youth at both placements. It states that

       A.K. was inpatient at Michiana Behavioral Healthcare in the fifth grade due to

       being out of control at home and participating in gang activity at school and

       remained at the facility for one week. The report states: “It should be noted this

       offense occurred while the first matter was pending. This resulted in the

       juvenile being placed in secure detention.” Appellant’s Appendix Volume III at

       64. It states that he received thirty-five incident reports in total while at

       Oaklawn.


[11]   The probation officer wrote that, although she appreciates the family’s desire to

       have A.K. return home, she continued to be concerned with the safety of other

       children, that A.K.’s grandmother is quite ill and will be away from the home to

       undergo treatment, that the grandmother has a close relationship with the other

       children and allowing A.K. to live in her home will result in the other children

       being punished by not being allowed contact with their grandmother, and that

       driving through the neighborhood she counted nine young children outside

       playing unsupervised. With respect to placement at the DOC, the report states

       that A.K. continues to be a high risk to reoffend and that, based on his lack of

       improvement, failure to complete treatment, and extreme defiance, it is the

       probation officer’s opinion that placement at the juvenile division of the DOC is


       Court of Appeals of Indiana | Memorandum Decision 19A-JV-1110 | October 17, 2019   Page 8 of 14
       the only viable placement. The report finds that A.K. is a danger to himself and

       others.


[12]   On April 10, 2019, the court held a dispositional hearing. A.K.’s probation

       officer testified that she received an email from Kinsey that morning containing

       a detention center review memo which indicated that, during the prior two

       days, A.K. had been dropped four levels due to behaviors in school, he was

       caught visiting unauthorized websites, was not doing his work, and was

       drawing inappropriate pictures. She recommended that A.K. complete the sex

       offender program through the DOC, and that until he works through that

       program he will continue to be a high risk to reoffend. She indicated the family

       indicated it did not want A.K. as far away as Tennessee at a potential facility

       and that she recommended that he complete the sexually maladaptive youth

       program at the Indiana Boy’s School.


[13]   The court stated its belief that A.K. continued to be a danger to the community,

       that he had been in two programs with minimal to no improvement, that he

       continues to be a high risk, and that “he’s basically ran the gamut, gauntlet”

       and “it’s time to place at Indiana Boy’s School” with the recommendation that

       he complete the sexually maladaptive youth program. Transcript Volume II at

       92.


[14]   The court issued a dispositional order awarding wardship of A.K. to the DOC

       for housing in a correctional facility for children. The order states in part:




       Court of Appeals of Indiana | Memorandum Decision 19A-JV-1110 | October 17, 2019   Page 9 of 14
               The Court finds this disposition is consistent with the safety and the
               best interest of the child and is the least restrictive and most
               appropriate setting available close to the parents’ home. Further,
               this disposition least interferes with the family’s autonomy, is least
               disruptive of family life, imposes the least restraint on the freedom
               of the child and the child’s parent(s); and provides a reasonable
               opportunity for participation by the child’s parent(s). The Court
               finds the child is in need of care and rehabilitation which can best
               be provided by his commitment to the [DOC]. Prior attempts at
               rehabilitation through less restrictive means, including residential
               placement, home based counseling, and probation supervision have
               been unsuccessful.


       Appellant’s Appendix Volume II at 11. The court recommended that A.K. be

       placed in a facility where he can continue with his education, receive mental

       health counseling, receive sexually maladaptive youth treatment, and

       participate in a behavior modification program.

                                                    Discussion

[15]   A.K. argues that the State failed to produce any evidence of the terms of his

       probation and that the juvenile court violated his right to due process in

       modifying the dispositional order. He further argues the court abused its

       discretion in committing him to the DOC, the State did not investigate or

       improperly rejected less restrictive placements, and his misconduct and

       circumstances did not justify a modification resulting in his commitment to the

       DOC. The State responds that it sufficiently proved that A.K. understood the

       terms and conditions that he was supposed to follow and that the factfinder

       could infer that he was made aware of the rules at Oaklawn. It argues that

       A.K. was given the opportunity to try placements at facilities other than the

       Court of Appeals of Indiana | Memorandum Decision 19A-JV-1110 | October 17, 2019   Page 10 of 14
       DOC, that the facilities dismissed him from their programs due to his continued

       behavioral problems and failure to make significant progress in treatment, and

       that, by the time the court placed him with the DOC, it had no other

       alternative.


[16]   The standard for determining what due process requires in a particular juvenile

       proceeding is “fundamental fairness.” D.A. v. State, 967 N.E.2d 59, 64-65 (Ind.

       Ct. App. 2012). A.K.’s care facilitator testified at the March 20, 2019

       modification hearing regarding A.K.’s behavior which included destruction of

       property and attempts to hurt others and himself and ultimate discharge from

       Oaklawn, and A.K.’s counsel questioned his probation officer about possible

       placement with his grandmother. Later, on April 8, 2019, A.K.’s probation

       officer filed a predispositional report reflecting the officer’s thorough

       consideration of placement with A.K.’s grandmother and the officer’s opinion

       that placement with the DOC is the only viable placement. At the April 10,

       2019 hearing, A.K. and his parents were present, and his counsel cross-

       examined his care facilitator and probation officer and made arguments on his

       behalf. A.K. has not shown that he was denied fundamental fairness or due

       process. See D.A., 967 N.E.2d at 65 (observing D.A.’s probation officer

       explained the reasons for the department’s recommendation, D.A. and his

       mother were present, his counsel presented argument, and the proceeding did

       not violate fundamental fairness); S.L.B. v. State, 434 N.E.2d 155, 157 (Ind. Ct.

       App. 1982) (noting S.L.B. was well aware of the purpose for which she was




       Court of Appeals of Indiana | Memorandum Decision 19A-JV-1110 | October 17, 2019   Page 11 of 14
       called before the court, she was present for the hearing, her position was

       expressed through her counsel, and fundamental fairness was served).


[17]   The juvenile court is given wide latitude and great flexibility in determining the

       disposition of a delinquent child. D.A., 967 N.E.2d at 65. However, its

       discretion is circumscribed by Ind. Code § 31-37-18-6, which 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” and “close

       to the parents’ home, consistent with the best interest and special needs of the

       child”; least interferes with family autonomy; is least disruptive of family life;

       imposes the least restraint on the freedom of the child and the child’s parent,

       guardian, or custodian; and provides a reasonable opportunity for participation

       by the child’s parent, guardian, or custodian. Under the statute, placement in

       the least restrictive and most appropriate setting available applies only “[i]f

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

       J.D. v. State, 859 N.E.2d 341, 346 (Ind. 2007) (citing Ind. Code § 31-37-18-6).

       We will not overturn the juvenile court’s disposition order absent an abuse of

       discretion, which occurs if its actions are clearly against the logic and effect of

       the facts and circumstances before it or the reasonable inferences that may be

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


[18]   The juvenile court heard testimony from A.K.’s probation officer and care

       facilitator at Oaklawn and was able to review the filed incident reports and

       dispositional report. It heard evidence regarding his behavior, treatment,

       Court of Appeals of Indiana | Memorandum Decision 19A-JV-1110 | October 17, 2019   Page 12 of 14
       placement history, and the reasons for his dismissal from the programs, and it

       considered the parties’ arguments. In its order awarding wardship of A.K. to

       the DOC for housing in a facility for children, the court indicated that it had

       considered among other factors the interests of A.K. and the public, alternatives

       for the care, treatment, and rehabilitation for A.K., the necessity, nature, and

       extent of the participation by a parent, guardian, or custodian in a program of

       care, treatment, or rehabilitation for the juvenile, and services if any that should

       be ordered for the parents or guardian. The court reviewed A.K.’s history of

       placements and found that less restrictive options are not appropriate.


[19]   Based upon the record, and in light of A.K.’s delinquent behavior and failure to

       adequately respond to prior attempts at rehabilitation, we conclude that the

       placement ordered by the juvenile court is consistent with his best interest and

       the safety of the community and find no abuse of discretion. See D.E. v. State,

       962 N.E.2d 94, 97 (Ind. Ct. App. 2011) (holding the juvenile court did not

       abuse its discretion in placing D.E. in a DOC facility even though there was a

       less restrictive option available where earlier attempts to rehabilitate his

       behavior were unsuccessful); K.A. v. State, 775 N.E.2d 382, 387 (Ind. Ct. App.

       2002) (holding the juvenile court did not abuse its discretion in placing K.A. at

       the DOC where previous less restrictive placements were unsuccessful and

       continued placement at a residential treatment center was apparently no longer

       an available option), trans. denied.


[20]   For the foregoing reasons, we affirm the juvenile court’s order.



       Court of Appeals of Indiana | Memorandum Decision 19A-JV-1110 | October 17, 2019   Page 13 of 14
[21]   Affirmed.


       Altice, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-JV-1110 | October 17, 2019   Page 14 of 14
