MEMORANDUM DECISION
                                                                                   FILED
Pursuant to Ind. Appellate Rule 65(D),                                         Jan 23 2018, 9:04 am
this Memorandum Decision shall not be
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regarded as precedent or cited before any                                      Indiana Supreme Court
                                                                                  Court of Appeals
court except for the purpose of establishing                                        and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Thomas C. Allen                                          Curtis T. Hill, Jr.
Fort Wayne, Indiana                                      Attorney General of Indiana
                                                         Christina D. Pace
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

L.D.W.,                                                  January 23, 2018
Appellant-Respondent,                                    Court of Appeals Case No.
                                                         02A04-1707-JV-1645
        v.                                               Appeal from the Allen Superior
                                                         Court
State of Indiana,                                        The Honorable Daniel G. Heath,
Appellee-Plaintiff.                                      Judge
                                                         The Honorable Michael T.
                                                         Douglass, Magistrate
                                                         Trial Court Cause No.
                                                         02D07-1702-JD-202



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 02A04-1707-JV-1645 | January 23, 2018           Page 1 of 9
[1]   L.D.W. appeals the trial court’s dispositional order awarding wardship of him

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

      facility for children. L.D.W. raises one issue which we revise and restate as

      whether the court abused its discretion in entering its order. We affirm.


                                      Facts and Procedural History

[2]   On February 22, 2017, Fort Wayne police responded to a report of three

      individuals, one of whom was L.D.W., born in November 2001, walking down

      an alley while armed, and officers combed the area looking for the individuals.

      When the officers identified the three individuals, two of them, including

      L.D.W., ran west and the other ran east. L.D.W. and the other individual saw

      a police vehicle and ran, the officer in the vehicle exited the vehicle and chased

      them, and another officer yelled for them to stop. Another officer saw L.D.W.

      and the other individual running across an empty lot directly in front of him,

      ordered them to stop and get on the ground, and noticed that L.D.W. had a gun

      in his hand. The officer drew his weapon, yelled for the two individuals to stop,

      and fired a shot. L.D.W. dropped his gun and bent down to pick it up, and the

      other individual running with L.D.W. ran into L.D.W. and knocked him to the

      ground. The officer ran toward L.D.W., noticed he could not see L.D.W.’s left

      hand, pointed his weapon at L.D.W., and ordered him to show his hands.

      L.D.W. fell onto his back, placed his hands up in front of him, and kicked his

      leg underneath the front of a car next to where he had fallen, and the officer

      rolled L.D.W. onto his stomach and placed him in handcuffs. The officer



      Court of Appeals of Indiana | Memorandum Decision 02A04-1707-JV-1645 | January 23, 2018   Page 2 of 9
      shined a light under the car where L.D.W. had been kicking and saw what

      appeared to be a handgun. L.D.W. stated that the weapon was an airsoft gun.


[3]   On March 1, 2017, the State filed a petition alleging that L.D.W. was a

      delinquent child in that he committed an act which, if committed by an adult,

      would be the crime of resisting law enforcement as a class A misdemeanor. On

      May 15, 2017, the court issued an Order on Factfinding Hearing which stated

      that the court had held a factfinding hearing and found that L.D.W. is a

      delinquent child and committed the delinquent act of resisting law enforcement.

      The court ordered that L.D.W. be placed in temporary secure detention at the

      Allen County Juvenile Center (the “ACJC”) and that he comply with all rules

      and participate in educational services, in drug/alcohol group classes, and in

      the Thinking Errors Program if available.


[4]   On June 15, 2017, the court held a dispositional hearing at which it noted that

      the reports presented to it included an ACJC Court Report, a Pre-Dispositional

      Report, and a Placement Board Staffing Report. The probation department

      recommended that L.D.W. be committed to the DOC. His counsel argued that

      L.D.W. was making progress, had improved his grades, and desired to become

      a productive member of society. His counsel also stated that, if the court

      ordered him to the DOC, perhaps that might be suspended and that the least

      restrictive environment would be to return home under any conditions the court

      would impose. The court stated “[w]ell, DOC is the last option,” “[t]hat’s kind

      of where this is at,” “[n]obody wants you to go to the [DOC],” “[b]ut the

      situation you find yourself in, because of your choices, that you’ve

      Court of Appeals of Indiana | Memorandum Decision 02A04-1707-JV-1645 | January 23, 2018   Page 3 of 9
      acknowledged or said that you know have been poor,” and “you run out of

      options just like we talked about.” Transcript at 74, 77. The court also stated

      “[h]ere’s the keys young man, you get to work, put your head down, stay out of

      trouble, focus on yourself, to better yourself, to make better choices, and you’ll

      be released sooner than later,” “[n]ow, if you don’t do that, you want to act up

      like you’ve been doing here - frankly, I’m not impressed that your disciplinary

      reports have dropped off after the Fact Finding,” and “[w]e shouldn’t have any

      disciplinary reports in the first place, let alone 25. That’s ridiculous. You’re

      better than that. You know better than that.” Id. at 78. The court further

      stated: “Court will show special findings: Has an extensive history of

      incorrigible behavior, conduct is chronic, escalating, has an ample opportunity

      to alter behavior, must learn logical and natural consequences of said behavior,

      and is in need of rehabilitation and will benefit from a highly structured

      environment.” Id. at 80. It awarded wardship of L.D.W. to the DOC for

      housing in a correctional facility for children.


                                                   Discussion

[5]   The issue is whether the court abused its discretion in awarding wardship of

      L.D.W. to the DOC for housing in a correctional facility for children. The

      juvenile court is given “wide latitude and great flexibility” in determining the

      specific disposition for a child adjudicated a delinquent. D.A. v. State, 967

      N.E.2d 59, 65 (Ind. Ct. App. 2012). However, its discretion is circumscribed by

      Ind. Code § 31-37-18-6, which provides:



      Court of Appeals of Indiana | Memorandum Decision 02A04-1707-JV-1645 | January 23, 2018   Page 4 of 9
              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.


[6]   “Under the statute, placement in ‘the least restrictive (most family like) 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) (quoting Ind. Code § 31-37-18-6).


[7]   A disposition will not be reversed absent a showing of an abuse of the juvenile

      court’s discretion, which occurs when the juvenile court’s order is clearly

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

      reasonable inferences that can be drawn therefrom. R.H. v. State, 937 N.E.2d

      386, 388 (Ind. Ct. App. 2010).




      Court of Appeals of Indiana | Memorandum Decision 02A04-1707-JV-1645 | January 23, 2018   Page 5 of 9
[8]    L.D.W. asserts the court abused its discretion in placing him at the DOC and

       that a detention at the ACJC would fulfill the court’s finding that he needed to

       learn the logical and natural consequences of his behavior, and would deprive

       him of his freedom and the everyday luxury of freedom of movement. He

       argues the ACJC is as structured as any facility within the DOC and as such

       fulfills the court’s finding for the need of structure. He also argues that his

       grades improved while he was detained at the ACJC and that his juvenile

       history is not filled with serious or dangerous criminal behavior.


[9]    The State maintains that L.D.W. has a history of delinquent activity, has been

       offered services, and has had multiple opportunities to rehabilitate. It argues

       the DOC is the least restrictive option available based on L.D.W.’s history and

       failed attempts at rehabilitation, L.D.W. has already been “given the exact

       treatment/opportunity that he is arguing for, detention at the [ACJC],” and

       that he committed the instant offense less than two months after being released

       from the ACJC. Appellee’s Brief at 10.


[10]   The ACJC Court Report, dated June 1, 2017, states that, since his last court

       date, L.D.W. had received three incident reports, that he was making progress

       and was more compliant with ACJC staff, and that he had made significant

       improvement in controlling his behavior. The report also included a summary

       of L.D.W.’s medical status and his academic status. The Placement Board

       Staffing Report, dated June 12, 2017, indicates that each of five representatives

       recommended that L.D.W. be placed in the DOC, and the representatives listed

       multiple reasons in support of their recommendation. These included L.D.W.’s

       Court of Appeals of Indiana | Memorandum Decision 02A04-1707-JV-1645 | January 23, 2018   Page 6 of 9
       extensive history in the juvenile system, that he has been on all levels of

       probation, that his behavior in detention has been horrible and he has had over

       twenty disciplinary referrals, that he has been suspended from school, that

       numerous services had been offered, and that he tested positive for marijuana.


[11]   The pre-dispositional report, dated June 14, 2017, indicates that L.D.W.’s legal

       history includes battery resulting in bodily injury in 2011, conversion in 2013,

       public intoxication in 2015, and possession of marijuana in 2016. The report

       indicates L.D.W. has been subject to informal administrative probation,

       informal operational probation, two periods of formal operational probation,

       three periods of electronic monitoring, and two periods of confinement at the

       ACJC, the first from May 5, 2016, through August 2, 2016, when he was

       released on anklet supervision, and the second from October 25, 2016, through

       January 4, 2017.


[12]   The pre-dispositional report further provides L.D.W. has “displayed significant

       behavioral issues while detained at the ACJC. He has received 24 disciplinary

       referrals for contraband and failing to follow staff instructions including:

       arguing, profanity, talking during resident movement, provoking, instigating, or

       participating in an altercation, resident body posture during resident movement,

       verbal harassment, excessive noise, and horseplay.” Appellant’s Appendix

       Volume 2 at 73. With respect to L.D.W.’s education, the report states that he

       began attending class at the ACJC in February 2017 and earned a grade of B+

       in Algebra I and an F in English 9. It states that he struggled with attendance

       once he returned to South Side High School in January 2017 as evidenced by

       Court of Appeals of Indiana | Memorandum Decision 02A04-1707-JV-1645 | January 23, 2018   Page 7 of 9
       four full-day truancies, sixteen class truancies, and twenty-two class tardies and

       that he was suspended on three separate occasions. With respect to L.D.W.’s

       health information, the report states that he was previously diagnosed with

       attention deficit hyperactivity disorder and tested positive for cannabinoid by

       urinalysis on February 23, 2017. The report also indicates that his overall risk

       assessment score using the Indiana Youth Assessment System places him in the

       high risk to reoffend category. With respect to his ACJC confinement, the

       report states that he had been given ample opportunities to alter his delinquent

       behaviors but refused to comply and that he could benefit from the structure

       and supervision provided at the DOC. The pre-dispositional report also

       indicates that L.D.W.’s case was staffed at Placement Board and it was a

       unanimous recommendation that he be committed to the DOC.


[13]   At the dispositional hearing, the probation department recommended that

       L.D.W. be committed to the DOC and noted his lengthy history of non-

       compliance and unsuccessful completions on supervision. The department

       noted that L.D.W. had been confined to the ACJC two separate times, that he

       was released from the more recent confinement on January 4, 2017, and that he

       committed his most recent offense less than two months later. Indeed, the pre-

       dispositional report indicates that L.D.W. was released from the ACJC on

       January 4, 2017, and he committed the new offense of resisting law

       enforcement on February 22, 2017. In its dispositional order, the court

       awarded wardship of L.D.W. to the DOC and found that he has an extensive

       history of incorrigible behavior, that his conduct is chronic and escalating, that


       Court of Appeals of Indiana | Memorandum Decision 02A04-1707-JV-1645 | January 23, 2018   Page 8 of 9
       he has had ample opportunity to alter his behavior, that he must learn logical

       and natural consequences of delinquent behavior, and that he is in need of

       rehabilitation and will benefit from a highly structured environment.


[14]   Based upon the record and under the circumstances, we cannot say that the

       court abused its discretion in awarding wardship of L.D.W. to the DOC for

       housing in a correctional facility for children. See D.E. v. State, 962 N.E.2d 94,

       97 (Ind. Ct. App. 2011) (noting the trial court placed the juvenile in a DOC

       facility because attempts to rehabilitate his behavior were unsuccessful;

       observing the juvenile had already violated probation by testing positive for

       marijuana and had been suspended or expelled from multiple schools; and

       holding that under the circumstances placement in the DOC was not an abuse

       of discretion).

                                                   Conclusion

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

[16]   Affirmed.

       Baker, J., and Riley, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 02A04-1707-JV-1645 | January 23, 2018   Page 9 of 9
