MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                              FILED
regarded as precedent or cited before any                                Jul 02 2020, 10:44 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
Mark K. Leeman                                           Curtis T. Hill, Jr.
Leeman Law Office                                        Attorney General of Indiana
Cass County Public Defender
                                                         George P. Sherman
Logansport, Indiana                                      Supervising Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

T.C.,                                                    July 2, 2020
Appellant-Respondent,                                    Court of Appeals Case No.
                                                         20A-JV-295
        v.                                               Appeal from the Cass Circuit
                                                         Court
State of Indiana,                                        The Honorable Stephen Roger
Appellee-Petitioner.                                     Kitts II, Judge
                                                         Trial Court Cause Nos.
                                                         09C01-1906-JD-34
                                                         09C01-1909-JD-72
                                                         09C01-1911-JD-84



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A-JV-295 | July 2, 2020                       Page 1 of 14
                                              Case Summary
[1]   T.C. appeals the juvenile court order awarding wardship of him to the Indiana

      Department of Correction (“DOC”) for housing in a correctional facility for

      children. The only issue he raises is whether that order was an abuse of the

      juvenile court’s discretion.


[2]   We vacate the dispositional decree1 and remand.



                               Facts and Procedural History
[3]   T.C. is a minor who was born on December 23, 2002. On October 22, 2018,

      T.C. was suspended from school, arrested, and alleged to be a delinquent for an

      act that would be theft as a Class A misdemeanor if committed by an adult.2

      The basis for that allegation was that he stole money that fellow students had

      obtained for a fundraiser. On January 29, 2019, T.C. was placed on Informal

      Adjustment. However, before completing the informal adjustment, T.C. was

      arrested again on June 9, 2019, for leaving home without permission. The

      informal adjustment was closed unsuccessfully, and, on June 10, the State filed

      formal allegations in cause number 09C01-1906-JD-34 (“JD-34”) that T.C. was

      a delinquent child for committing Count I, theft as a Class A misdemeanor if

      committed by an adult, and Count II, leaving home without permission, a




      1
          T.C. does not challenge the delinquency or probation violation adjudications, only the disposition.
      2
          Ind. Code § 35-43-4-2(c).


      Court of Appeals of Indiana | Memorandum Decision 20A-JV-295 | July 2, 2020                        Page 2 of 14
      status offense.3 At an initial hearing, T.C. admitted to Counts I and II. On

      June 10, the juvenile court placed T.C. on formal probation and ordered him to

      pay restitution, engage in twenty hours of community service, participate in

      electronic monitoring through an ankle bracelet for thirty days, obtain an

      assessment at Four County Counseling Center (“FCCC”), participate in Moral

      Reconation Therapy (“MRT”), and pay court costs.


[4]   On July 9, 2019, the State filed a petition to modify the dispositional decree in

      JD-34 because T.C. had violated probation by refusing a urine screen. On July

      10, the State filed another petition to modify because T.C. violated probation by

      being in “unapproved locations” on six different days. App. Vol. II at 62. On

      July 15, the State filed a third petition to modify on the grounds that T.C. had

      tested positive for cannabinoids on July 3, 2019, in violation of probation. On

      July 24, T.C. admitted to the three counts of violating probation, and the

      juvenile court modified the dispositional order by adding the requirement that

      T.C. remain on GPS monitoring for sixty days.


[5]   The State subsequently filed five more petitions to modify in JD-34 on the

      grounds that T.C. had violated the terms of probation by: Count IV, testing

      positive for marijuana; Count V, testing positive for marijuana; Count VI,

      truancy; Count VII, testing positive for marijuana; and Count VIII, testing

      positive for marijuana.




      3
          I.C. § 31-37-2-2.


      Court of Appeals of Indiana | Memorandum Decision 20A-JV-295 | July 2, 2020   Page 3 of 14
[6]   On September 17, 2019, T.C. was found vaping in the school restroom. Upon

      questioning by school officials, T.C. was verbally abusive and cursing loudly,

      and he was subsequently suspended from school. On September 24, the State

      filed a new delinquency action under cause number 09C01-1909-JD-72 (“JD-

      72”) in which it alleged that T.C. was a delinquent child for committing an act

      that would be disorderly conduct, as a Class B misdemeanor,4 if committed by

      an adult. T.C. denied the allegation on October 30, and the court set a fact-

      finding hearing for December 12, 2019.


[7]   On November 13, 2019, the State filed another new delinquency action under

      cause number 09C01-1911-JD-84 (“JD-84”), in which it alleged that T.C. was

      a delinquent child for committing acts which would be the following crimes if

      committed by an adult: Count I, unlawful possession of a legend drug, as a

      Level 6 felony;5 Count II, possession of a controlled substance, as a Class A

      misdemeanor;6 Count III, criminal mischief, as a Class B misdemeanor;7 Count

      IV, unlawful use of a police radio, as a Class B misdemeanor;8 and Count V,

      possession of marijuana, as a Class B misdemeanor.9 At the November 13

      initial hearing, T.C. denied all allegations in JD-84, the juvenile court set the



      4
          I.C. § 35-45-1-3(a)(3).
      5
          I.C. § 16-42-19-13.
      6
          I.C. § 35-48-4-7(a).
      7
          I.C. § 35-43-1-2(a).
      8
          I.C. § 35-44.1-2-7(a)(1).
      9
          I.C. § 35-48-4-11(a)(1).


      Court of Appeals of Indiana | Memorandum Decision 20A-JV-295 | July 2, 2020   Page 4 of 14
      matter for a fact-finding hearing on December 12, and the court ordered T.C.

      held at the Kinsey secure detention facility for children pending further order.


[8]   On December 12, 2019, the juvenile court held fact-finding hearings in causes

      JD-34, JD-72, and JD-84. In JD-34, T.C. admitted to Violation Counts IV and

      V, both for testing positive for marijuana, and the court dismissed Violation

      Counts VI, VII, and VII. The trial court set the dispositional hearing on

      Violation Counts IV and V for January 15, 2020. Regarding JD-72, the juvenile

      court found that T.C. was delinquent for committing an act that would be

      disorderly conduct, as a Class B felony, if committed by an adult. The court

      ordered T.C. to remain in secure detention pending a January 15, 2020,

      dispositional hearing in that cause. In JD-84, the juvenile court found that the

      State had not met its burden to prove T.C. was delinquent as alleged in counts I

      through V.


[9]   On January 13, 2020, the juvenile probation department filed a Predispositional

      Report. The report included a personal statement from T.C. to the juvenile

      court which stated as follows:


             I know the past year I haven’t been a responsible citizen or a
             good role model to anyone. When I got sent to secure
             [detention] at first I wasn’t going to change my ways, but now
             that I’ve really thought about my future[,] I have to change now
             because my lifestyle will get me nowhere in life. I would like to
             get my diploma and go to college or acquire a trade. I have been
             violating my probation so that’s the first thing I am going to
             accomplish[,] along with finishing MRT and paying my dues off.
             I just want to become a better person for me and my family, I
             really miss them. I would like to get a 2nd chance to achieve my
      Court of Appeals of Indiana | Memorandum Decision 20A-JV-295 | July 2, 2020   Page 5 of 14
              goals and have a better year because I think 2020 will be a new
              chapter in my life and I can’t wait to make good memories this
              year without getting into any trouble. Thank you for hearing me
              out, I appreciate it.


       App. V. III at 62. The report also contained a statement from T.C.’s father

       which stated:


              [T.C.] seems like he has really learned his lesson since being in
              placed in secure detention. I don’t feel like he needs to be locked
              up any longer for probation violations. If he continues in
              detention it will make things worse. [T.C.] is starting to think his
              life is over, and I don’t want him to become more depressed. He
              is a kid and I don’t want him to be traumatized by being locked
              up. [T.C.] has promised he will be better and I believe him. We
              are both willing to do whatever is necessary for him to come
              home. [T.C.] says he is wasting his life and days in detention
              and doesn’t like it. He wants to come home, continue with his
              life, and make it better.


       Id. at 63.


[10]   The Predispositional Report stated that T.C. is in the moderate risk category to

       reoffend. The report stated that T.C. has “done very well in secure detention,”

       and is “respectful,” “appropriate,” and behaving “very well.” Id. at 75. The

       report noted that T.C.:


              has had very little community[-]based services since being
              involved in the juvenile justice system. He has participated
              regularly in MRT since June 2019. [T.C.] and his father are
              willing to engage in additional services including individual
              counseling, MRT, and home-based services should he be released
              from secure detention on 1/15/2020. It appears as if the two of

       Court of Appeals of Indiana | Memorandum Decision 20A-JV-295 | July 2, 2020   Page 6 of 14
       them could benefit from services in order to help mend their
       relationship, which could be contributing to the delinquency and
       non-compliance. T.C. reports he lived on and off with his
       grandparents while growing up. [T.C.’s father] seems very
       “hands off” and is often working and does not make it a priority
       to spend time with his son. However, since [T.C. has been] in
       detention, [T.C.’s father] has been consistent in visiting his son
       and has stayed in contact with him via telephone.


Id. The juvenile probation department recommended that the juvenile court

order community-based services for T.C. as those “services have not been

exhausted.” Id. The report further stated that:


       MRT has been the only consistent service so far that the juvenile
       has participated in. [T.C.’s father] has previously been somewhat
       resistant to services. Additionally, probation did not push
       services during a period of compliance with probation.
       Community[-]based services such as intensive home-based case
       management, individual/family therapy, and the completion of
       MRT should be provided to the juvenile and his family at this
       time as the purpose of the juvenile justice system is rehabilitation.
       Both [T.C.] and his father are currently in agreement to
       participate in all community[-]based services that are deemed
       appropriate.


Id. The juvenile probation department stated that it did not recommend

placement in the DOC


       at this time due to [T.C.’s] limited legal history and level of
       offenses. The juvenile does not have any felony adjudications. If
       placed at DOC, the juvenile will be in a punitive setting and be
       around some of the most hardened juveniles in the state of
       Indiana. Placing him in IDOC at this time is contrary to the goal
       of the juvenile justice system, which is rehabilitation.
Court of Appeals of Indiana | Memorandum Decision 20A-JV-295 | July 2, 2020   Page 7 of 14
       Id.


[11]   On January 13, the Kinsey Youth Detention Center also submitted to the court

       a report regarding T.C. The report noted that, during the approximate two

       months T.C. had been at the detention center, T.C. was “respectful” except for

       one incident when he called a staff person a name. The report noted that T.C.

       was “appropriate,” “participat[ing],” and doing “extremely well” with “positive

       behaviors and attitudes” until the prior week when he engaged in the name-

       calling. Id. at 78. The report stated that T.C. was “respectful” and

       “cooperative.” Id. at 79.


[12]   On January 15, 2020, the juvenile court held a dispositional hearing in causes

       JD-34 and JD-72 and issued a dispositional order in which it awarded wardship

       of T.C. to the DOC “for housing in any correctional facility for children.” 10

       Appealed Order at 6. In reaching that decision, the juvenile court rejected the

       probation department’s recommendations for T.C. on the grounds that they

       were “not steps forward, they are steps backward, into services that have

       previously failed.” Id. at 5 (emphasis in original). The court found the

       probation department’s recommendation failed to consider the “safety of the

       community,” by “communicating to other juveniles that they can expect a

       similar lack of sanction for similar behavior.” Id. The juvenile court further




       10
          The court also ordered the DOC to provide it with at least ten days’ notice prior to release of T.C. from
       the DOC “for the purpose of setting a hearing as to the issue of continued supervision.” Appealed Order at
       6.

       Court of Appeals of Indiana | Memorandum Decision 20A-JV-295 | July 2, 2020                       Page 8 of 14
       found that T.C., “by his behavior and demeanor, has at no point expressed

       anything but contempt for the law, probation, and the Court.” Id. The trial

       court stated that it took “extreme umbrage at the suggestion from the Cass

       County Juvenile Probation Department that this should be treated as an episode

       of Kids Say the Darndest Things.” Id. The court concluded that T.C. is a “threat

       to the safety and well-being of [the] students” of the local school system and the

       community, and that there was “no reason to engage in a process for which the

       juvenile has expressed nothing but disdain.” Id. at 5-6.


[13]   The juvenile court concluded that it was in T.C.’s best interest and the safety

       interests of the community that T.C. remain removed from his home because of

       the delinquency adjudications, the probation violations, “the rate at which the

       juvenile’s behavior has deteriorated,” the parent’s “inability or refusal to care

       for or control the juvenile,” and the “juvenile’s repeated disregard and contempt

       for all authority.” Id. at 6.


[14]   T.C. now appeals.



                                 Discussion and Decision
[15]   T.C. has a total of three delinquency adjudications: two for conduct that would

       be a Class A misdemeanor and a Class B misdemeanor, respectively, if

       committed by an adult, and one for a status offense. He also has a total of five

       probation violations in JD-34: four for testing positive for marijuana and one

       for truancy. However, T.C. does not challenge his delinquency or probation


       Court of Appeals of Indiana | Memorandum Decision 20A-JV-295 | July 2, 2020   Page 9 of 14
       violation adjudications; rather, he challenges the juvenile court order awarding

       wardship of him to the DOC.


[16]   The specific disposition of a delinquent child is within the juvenile court’s

       discretion, to be guided by the following statutory considerations:


              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.


       I.C. § 31-37-18-6; see also, K.S. v. State, 849 N.E.2d 538, 544 (Ind 2006). We

       reverse only for an abuse of discretion—that is, a decision that is “clearly

       against the logic and effect of the facts and circumstances before the court, or

       Court of Appeals of Indiana | Memorandum Decision 20A-JV-295 | July 2, 2020   Page 10 of 14
       the reasonable, probable, and actual deductions to be drawn therefrom.” K.S. v.

       State, 114 N.E.3d 849, 854 (Ind. Ct. App. 2018), trans. denied. When a juvenile

       court approves or rejects the recommendations of a predispositional report, it

       must state its reasoning. I.C. § 31-37-18-9.


[17]   Here, it is clear that the court did not place T.C. in the “least restrictive

       alternative” that interfered least “with family autonomy,” is “least disruptive of

       family life,” and “imposes the least restraint on the freedom of the child” and

       his parent. I.C. § 31-37-18-6(1)-(4). However, placement in a more restrictive

       environment is permissible when it is in the child’s best interests and/or

       promotes the safety of the community. Id.; see also, e.g., M.C. v. State, 134

       N.E.3d 453, 459 (Ind. Ct. App. 2019), trans. denied. Thus, we must affirm the

       juvenile court’s decision to place T.C. with DOC rather than ordering the less

       restrictive community-based services the probation department recommended

       unless that decision is “clearly against the logic and effects of the facts and

       circumstances before the court.” K.S., 114 N.E.3d at 854. We hold that it is.


[18]   The juvenile court stated that the probation department’s recommendations

       were “not steps forward, they are steps backward, into services that have

       previously failed.” Appealed Order at 5. However, the evidence established

       that the probation department recommended community-based services

       specifically because most of them had not been tried previously. Rather, T.C.

       had only been given MRT services. He had not been given any other

       community-based services such as “intensive home-based management and

       individual/family therapy,” which the probation department recommended as

       Court of Appeals of Indiana | Memorandum Decision 20A-JV-295 | July 2, 2020   Page 11 of 14
       the least restrictive placement. App. V. III at 75. Thus, the trial court erred in

       finding that the recommended services had already been provided but failed.11


[19]   The juvenile court also found that the recommended community-based services

       did not take into consideration the safety of the community. The “safety” issue

       the juvenile court identified was the “public policy disaster” that it found would

       ensue “by communicating to other juveniles that they can expect a similar lack

       of sanction for similar behavior.” Id. That finding is clearly against the facts

       and circumstances before the court in that it fails to take into consideration that

       T.C. had already been placed in secured detention for two months at the time of

       the dispositional hearing. Moreover, that finding also misapplies the law.

       First, the placement of a delinquent child must be based not on considerations

       of other hypothetical juveniles, but on the circumstances of the individual child

       before the court. See E.L. v. State,783 N.E.2d 360, 367 (Ind. Ct. App. 2003)

       (noting the juvenile court must make its dispositional determination based on

       the individual juvenile rather than policy considerations). Second—and most

       importantly—the disposition in a delinquency action must be based on

       principles of rehabilitation, not the desire to punish or “sanction” the juvenile.

       Id. at 366.




       11
          The State contends that this case is similar to M.C. v. State, 134 N.E.3d 453 (Ind. Ct. App. 2019), trans.
       denied, and other cases where we upheld dispositional orders awarding wardship of juveniles to the DOC.
       However, unlike in this case, in M.C. “the evidence establishe[d] that many less restrictive rehabilitative
       efforts have failed to reach M.C. and have not produced positive changes in his behavior…” Id. at 459; see
       also, e.g., S.C. v. State, 779 N.E.2d 937, 938 (Ind. Ct. App. 2002) (noting the juvenile had been provided,
       among other things, inpatient and outpatient counseling), trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 20A-JV-295 | July 2, 2020                       Page 12 of 14
[20]   In reaching its decision, the juvenile court further found that T.C. “at no point

       expressed anything but contempt for the law, probation, and the Court,” and

       that T.C. had an “inability or refusal to participate in his own rehabilitation”

       that “further makes him a threat to the safety of the community.” Appealed

       Order at 5, 6. Those findings are also clearly against the logic and effect of the

       facts and circumstances before the court. T.C.’s statement to the court showed

       contrition and a respectful request for the court to place him in home-based

       services. In addition, the reports of both the Kinsey detention facility and the

       juvenile probation department provided evidence that, in the two months prior

       to the hearing, T.C. had been respectful, cooperative in his rehabilitation

       services, and well-behaved, with the minor exception of one incident of name-

       calling. There was no evidence before the juvenile court that T.C. had been

       contemptuous and disrespectful of the law, probation, or the court in recent

       months; rather, the evidence showed that he was actively participating in his

       rehabilitation during that time.


[21]   The juvenile court’s finding that the probation department did not take T.C.’s

       behaviors seriously—treating it “as an episode of Kids Say the Darndest

       Things”—was also clearly against the facts before the court. Appealed Order at

       5. The probation department did a lengthy, detailed predispositional report in

       which it reviewed T.C.’s juvenile delinquency history, family situation, mental

       health, and education. It also appropriately reviewed and took into

       consideration T.C.’s conduct and response to services and secure detention in

       recent months. Thus, the insinuation that the probation department did not


       Court of Appeals of Indiana | Memorandum Decision 20A-JV-295 | July 2, 2020   Page 13 of 14
       take T.C.’s actions seriously was clearly against the logic and effect of the facts

       and circumstances before the court.


[22]   In sum, the juvenile court’s findings that it is in the best interests of T.C. and

       the safety of the community that T.C. be made a ward of the DOC are clearly

       against the logic and effect of the facts and circumstances that were before the

       court. Rather, those facts and circumstances established that it would be

       consistent with the safety of the community and T.C.’s best interest if he was

       offered the less restrictive alternative of community-based services such as

       intensive home-based case management and individual/family therapy, as

       recommended by the juvenile probation department. Such a disposition is the

       least restrictive setting, interferes least with family autonomy, is least disruptive

       of family life, imposes the least restraint on T.C. and his father, and provides a

       reasonable opportunity for T.C.’s father to participate in T.C.’s rehabilitation.

       See I.C. § 31-37-18-6(1)-(5).


[23]   We vacate the dispositional order and remand for proceedings consistent with

       this decision.


       Crone, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A-JV-295 | July 2, 2020   Page 14 of 14
