      MEMORANDUM DECISION
                                                                          Apr 30 2015, 9:43 am
      Pursuant to Ind. Appellate Rule 65(D), this
      Memorandum Decision shall not be regarded as
      precedent or cited before any court except for the
      purpose of establishing the defense of res judicata,
      collateral estoppel, or the law of the case.



      ATTORNEY FOR APPELLANT                                       ATTORNEYS FOR APPELLEE
      Jill M. Acklin                                               Gregory F. Zoeller
      McGrath, LLC                                                 Attorney General of Indiana
      Carmel, Indiana
                                                                   Christina D. Pace
                                                                   Deputy Attorney General
                                                                   Indianapolis, Indiana



                                                     IN THE
              COURT OF APPEALS OF INDIANA

      S.H.,                                                        April 30, 2015

      Appellant-Respondent,                                        Court of Appeals Case No.
                                                                   49A02-1409-JV-640
              v.
                                                                   Appeal from the Marion Superior
      State of Indiana,                                            Court
                                                                   The Honorable Marilyn Moores, Judge
      Appellee-Petitioner,                                         The Honorable Scott Stowers,
                                                                   Magistrate
                                                                   Cause No. 49D09-1405-JD-1290




      Robb, Judge.



                                 Case Summary and Issue
[1]   S.H. was adjudicated a delinquent for committing an act that would be Class B

      felony robbery if committed by an adult. The juvenile court ordered wardship
      Court of Appeals of Indiana | Memorandum Decision 49A02-1409-JV-640 | April 30, 2015       Page 1 of 7
      of S.H. to be with the Indiana Department of Correction (“DOC”), with a

      recommendation that he be committed for a period of twelve months. S.H.

      now appeals this disposition, raising one issue for our review: whether the

      juvenile court abused its discretion in committing him to DOC when less

      restrictive alternatives were available. Concluding the trial court did not abuse

      its discretion, we affirm.



                            Facts and Procedural History
[2]   On April 29, 2014, S.H. robbed two employees of a Subway restaurant at

      gunpoint. During those employees’ 4 p.m. to 10 p.m. shift, S.H. entered and

      left the store several times. The last time S.H. entered the store, no other

      customers were present. S.H. went to the counter, pointed a handgun at the

      two employees, and demanded money. One of the employees tried to run to

      the back of the store, but S.H. called her back. The other employee took the

      cash drawer from the register and sat it on the counter. S.H. took the money

      from the drawer and left the store.


[3]   The State of Indiana filed a petition alleging S.H. was a delinquent child for

      committing two acts of robbery with a deadly weapon, Class B felonies if

      committed by an adult. S.H. denied the allegations of the petition. Following a

      fact-finding hearing, the juvenile court found that the allegations of the petition

      were true.




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[4]   At the dispositional hearing, the probation department recommended that S.H.

      be committed to DOC because of his prior criminal behavior and his failure to

      respond positively to less restrictive alternatives in the past. S.H. requested the

      juvenile court place him at Resource Residential Treatment Facility, which had

      accepted him into its secured residential program. The juvenile court merged

      the two true findings and entered disposition only on count 2:

              I am going to accept probation’s recommendation proceeding with
              disposition, the Court notes uh I guess most importantly the serious
              nature of the charge but also your history uh in other jurisdictions as
              well as your history here, find there are no least restrictive alternatives
              consistent with the safety and well being of the community therefore,
              the Court will award wardship to the Department of Correction for
              placement at an appropriate facility, recommend while you are there
              that you involved yourself in individual counseling, substance abuse
              counseling as well as education program . . ., recommend twelve
              months.
      Transcript at 116. S.H. now appeals his placement with DOC.



                                 Discussion and Decision
                                      I. Standard of Review
[5]   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

      Indiana Code section 31-37-18-6, which provides:

              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:

      Court of Appeals of Indiana | Memorandum Decision 49A02-1409-JV-640 | April 30, 2015   Page 3 of 7
                       (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.
      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).


                          II. DOC as Appropriate Placement
[6]   S.H. argues the trial court abused its discretion in placing him with DOC

      because a less restrictive option was available—he had been accepted into a

      residential treatment facility. As stated above, however, Indiana Code section

      31-17-18-6 states that the disposition shall be in the least restrictive and most

      appropriate setting. Just because S.H. was accepted into a less restrictive

      placement than DOC does not necessarily mean that it is also the most

      appropriate placement. Although Indiana has a policy of favoring the least-

      harsh disposition in juvenile cases, the least restrictive placement is required

      only if it is consistent with the welfare of the child and the community’s safety.

      R.S. v. State, 796 N.E.2d 360, 364 (Ind. Ct. App. 2003), trans. denied.
      Court of Appeals of Indiana | Memorandum Decision 49A02-1409-JV-640 | April 30, 2015   Page 4 of 7
[7]   S.H. likens his situation to that in D.P. v. State, 783 N.E.2d 767 (Ind. Ct. App.

      2003). In D.P., the juvenile admitted to committing fraud by taking a woman’s

      credit card while doing chores for her and using it for several purchases, and

      theft by later taking the same woman’s mail from her mailbox and throwing it

      away. The probation department recommended a suspended commitment to

      DOC, but the juvenile court awarded guardianship of the juvenile to DOC for

      six months. The juvenile appealed his placement. We held that the trial court

      abused its discretion in not imposing the less-harsh alternative of a suspended

      commitment, in part because the juvenile had a low I.Q. and an impulse

      disorder, and in part because there was little evidence to suggest the juvenile

      would not respond positively to probation. Id. at 770. The juvenile had only

      one prior contact with the juvenile justice system five years prior and had

      successfully completed probation for that conduct. Id. at 770-71.


[8]   We disagree with S.H.’s favorable comparison of his case to D.P. In

      determining an appropriate placement, the juvenile court looked at S.H.’s

      juvenile’s history, his conduct in the instant matter, and the impact of the

      placement alternatives on the community. In the three years prior to the

      conduct under review here, S.H. had true findings in 2011 for Class A

      misdemeanor battery and Class B misdemeanor disorderly conduct and in 2013

      for Class B felony robbery. S.H. failed a diversion program for the battery and

      disorderly conduct adjudications. He was committed to DOC on a short-term

      placement for the 2013 robbery, but then committed additional crimes.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1409-JV-640 | April 30, 2015   Page 5 of 7
[9]    S.H. committed the instant offense a month after being detained for attempted

       residential entry and released on electronic monitoring. By committing the

       instant offense, S.H. violated the terms of his release. He was therefore

       detained throughout these proceedings. Probation reported that fourteen

       incident reports had been filed against him while he was in detention awaiting

       disposition of this case. The probation department evaluated the dispositional

       options and concluded that community-based services and out-of-home

       placement were not valid options because, given his juvenile history, S.H.

       presents a risk to public safety. The juvenile court agreed, specifically

       referencing the serious nature of the allegations, S.H.’s juvenile history, and the

       well-being of the community in ordering placement with DOC. Unlike D.P.,

       there are no special circumstances that make this disposition overly-harsh, and

       S.H.’s history of squandering the chances given to him suggests he will not

       respond positively to a less restrictive placement.


[10]   In similar circumstances, we have held that commitment to DOC was not an

       abuse of discretion. In D.E. v. State, 962 N.E.2d 94 (Ind. Ct. App. 2011), we

       held that although the juvenile presented the option of placement at a

       residential treatment center, his placement at DOC was not an abuse of

       discretion because less restrictive rehabilitation efforts had been unsuccessful,

       and the juvenile’s attempt to rob an out-of-uniform police officer while armed

       with a rifle caused concern for public safety. Id. at 97. Likewise, S.H.’s

       commitment to DOC, even though a less restrictive option was available, was




       Court of Appeals of Indiana | Memorandum Decision 49A02-1409-JV-640 | April 30, 2015   Page 6 of 7
       not an abuse of discretion because it was consistent with S.H.’s best interest and

       the safety of the community.



                                                Conclusion
[11]   The juvenile court did not abuse its discretion in ordering that S.H. be

       committed to DOC. The judgment of the juvenile court is affirmed.


[12]   Affirmed.


       May, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1409-JV-640 | April 30, 2015   Page 7 of 7
