MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                   FILED
this Memorandum Decision shall not be
                                                                    Nov 29 2016, 8:03 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
Jennifer L. Koethe                                       Gregory F. Zoeller
LaPorte, Indiana                                         Attorney General of Indiana
                                                         Caryn N. Szyper
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

In The Matter of J.H.,                                   November 29, 2016

A Child Alleged To Be                                    Court of Appeals Case No.
                                                         46A03-1604-JV-945
Delinquent,
                                                         Appeal from the LaPorte Circuit
Appellant-Defendant,                                     Court
        v.                                               The Honorable Thomas Alevizos,
                                                         Judge
State of Indiana,                                        The Honorable W. Jonathan
                                                         Forker, Magistrate
Appellee-Plaintiff.
                                                         Trial Court Cause No.
                                                         46C01-1512-JD-213



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 46A03-1604-JV-945 | November 29, 2016      Page 1 of 10
                                             Case Summary
[1]   J.H. was adjudicated a delinquent, with the trial court entering true findings for

      (1) Leaving Home Without Permission1 and (2) Theft.2 On appeal, J.H.

      challenges his Leaving Home Without Permission adjudication as well as

      aspects of the juvenile court’s disposition. We affirm.



                                                    Issues
[2]   J.H. raises two restated issues:

                 I.           Whether the evidence is sufficient to support his true
                              finding of Leaving Home Without Permission; and


                 II.          Whether the juvenile court abused its discretion when it
                              placed J.H. in a residential facility.


                                   Facts and Procedural History
[3]   On November 23, 2015, sixteen-year-old J.H. was with his mother (“Mother”)

      at a Dollar Tree store in Michigan City, Indiana. Without Mother’s

      permission, J.H. left Dollar Tree and went to the nearby Family Dollar store,

      where Kimberly Walker (“Walker”) was working. Walker saw J.H. pick up

      underwear and walk behind the end of an aisle. When Walker heard a rattle of




      1
          Ind. Code § 31-37-2-2.
      2
          I.C. § 35-43-4-2.


      Court of Appeals of Indiana | Memorandum Decision 46A03-1604-JV-945 | November 29, 2016   Page 2 of 10
      packaging, she approached J.H. and saw him put a scarf and underwear in his

      jacket. J.H. then looked at Walker, said “I was not stealing,” and began to pull

      items from his pockets as he exited. Just outside the store, J.H. dropped gloves

      with tags on them. He ran toward Dollar Tree and got in line with Mother.


[4]   Walker went to Dollar Tree to alert staff, who told her to call the police. When

      the police arrived, J.H. had again left without Mother’s permission. Mother

      reported J.H. as a runaway and requested that police bring J.H. to Dollar Tree.


[5]   On December 11, 2015, the State alleged J.H. to be a delinquent for (1) Leaving

      Home Without Permission and (2) Theft, which would be a Class A

      misdemeanor if committed by an adult. The State also included allegations of

      Theft and Intimidation for unrelated incidents. Following a fact-finding

      hearing on March 28, 2016, the juvenile court entered true findings for the

      Leaving Home Without Permission and Theft allegations related to the

      November 23 events. There were no true findings for the other allegations.


[6]   Following the fact-finding hearing, the juvenile court asked J.H. and the State

      when they wanted to hold a dispositional hearing. J.H. and the State indicated

      they were ready, and the juvenile court proceeded to disposition. The

      probation department recommended that J.H. be placed at a particular

      residential facility, basing its recommendation on the services J.H. had

      previously received as well as letters from two psychiatrists that recommended

      residential placement. The probation officer present at the hearing noted that

      the particular facility no longer had a bed immediately available for J.H. but


      Court of Appeals of Indiana | Memorandum Decision 46A03-1604-JV-945 | November 29, 2016   Page 3 of 10
      one would be available in May 2016, and recommended that J.H. remain on

      the secure side of the detention center until then. The State agreed with the

      recommendation but the defense objected to residential placement. The

      juvenile court followed the probation department’s recommendation in entering

      its dispositional decree.


[7]   J.H. now appeals.



                                 Discussion and Decision
                                 Sufficiency of the Evidence
[8]   In juvenile delinquency adjudication proceedings, the State must prove every

      element of the offense beyond a reasonable doubt. A.B. v. State, 885 N.E.2d

      1223, 1226 (Ind. 2008). We do not reweigh the evidence or judge the credibility

      of witnesses. Al-Saud v. State, 658 N.E.2d 907, 909 (Ind. 1995). Rather, we

      consider only the evidence and reasonable inferences most favorable to the

      judgment. Id. We affirm if the evidence and those inferences constitute

      substantial evidence of probative value to support the judgment. A.B., 885

      N.E.2d at 1226.


[9]   Indiana law provides that a “child commits a delinquent act if, before becoming

      eighteen (18) years of age, the child leaves home or a specific location

      previously designated by the child’s parent, guardian, or custodian: (1) without

      reasonable cause; and (2) without permission of the parent, guardian, or

      custodian, who requests the child’s return.” I.C. § 31-37-2-2.

      Court of Appeals of Indiana | Memorandum Decision 46A03-1604-JV-945 | November 29, 2016   Page 4 of 10
[10]   J.H. points out that he and Mother never had a specific conversation at Dollar

       Tree about him staying at the store. Thus, J.H. seemingly challenges whether

       the State proved J.H. left a designated location without permission. Here, at

       the fact-finding hearing, Mother testified that J.H. did not have permission to

       leave Dollar Tree. As a general rule, J.H. was to stay with her in the store, and

       he did not have permission to go where he wanted without telling her. J.H. did

       not tell Mother he was leaving. Under these facts, we find J.H.’s challenge to

       the location and permission elements unavailing.


[11]   More pointedly, however, J.H. suggests the evidence is insufficient because

       Mother asked the police to return J.H. to the Dollar Tree but she did not ask

       J.H. to return. J.H. relies on T.W. v. State, 864 N.E.2d 361, 365 (Ind. Ct. App.

       2007), trans. denied. There, in the context of a case involving a request directed

       at a child to return, we used language about making the request to the child.

       The statute, however, does not expressly specify to whom a parent must direct

       her request. See I.C. § 31-37-2-2 (requiring that the “parent, guardian, or

       custodian . . . request the child’s return.”). Nonetheless, when examining the

       statute in T.W., we observed as we do now that the “goal of statutory

       construction is to determine, give effect to, and implement the intent of the

       legislature.” T.W., 864 N.E.2d at 365 (citing Sales v. State, 723 N.E.2d 416, 420

       (Ind. 2000)). We presume the legislature “intended the language used in the

       statute to be applied logically and not to bring about an unjust or absurd result.”

       Id. Here, J.H. invites an illogical reading of the “runaway” statute, in which




       Court of Appeals of Indiana | Memorandum Decision 46A03-1604-JV-945 | November 29, 2016   Page 5 of 10
       the statute would never apply where a parent could not contact the child after

       the child ran away. This could not have been the legislature’s intent.


[12]   We find that the evidence is sufficient to sustain J.H.’s adjudication.


                                      Residential Placement
[13]   The juvenile court has discretion to choose the specific disposition of a juvenile

       adjudicated a delinquent, “subject to the statutory considerations of the welfare

       of the child, the community’s safety, and the Indiana Code’s policy of favoring

       the least harsh disposition.” C.T.S. v. State, 781 N.E.2d 1193, 1202 (Ind. Ct.

       App. 2003). We will not reverse a juvenile disposition unless the juvenile court

       abuses its discretion. Id. The juvenile court abuses its discretion if its action is

       “clearly erroneous and against the logic and effect of the facts and

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

       deductions to be drawn therefrom.” D.B. v. State, 842 N.E.2d 399, 404-05 (Ind.

       Ct. App. 2006).


[14]   Indiana Code Section 31-37-18-6 sets forth a list of factors that the juvenile

       court must consider in entering a dispositional decree, and provides as follows:

               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
       Court of Appeals of Indiana | Memorandum Decision 46A03-1604-JV-945 | November 29, 2016   Page 6 of 10
                       (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.


[15]   We have previously noted that this section requires that the juvenile court select

       the least restrictive placement in most situations. D.B., 842 N.E.2d at 405.

       “However, the statute contains language which reveals that under certain

       circumstances a more restrictive placement might be appropriate.” K.A. v. State,

       775 N.E.2d 382, 386-87 (Ind. Ct. App. 2002), trans. denied. Indeed, the statute

       requires placement in the least restrictive setting only if such placement is

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

       I.C. § 31-37-18-6. In other words, “the statute recognizes that in certain

       situations the best interest of the child is better served by a more restrictive

       placement.” K.A., 775 N.E.2d at 387.


[16]   J.H. argues that the juvenile court abused its discretion in ordering his

       placement in the particular residential facility because “there was no evidence

       presented that another similar or less restrictive program in La Porte County

       was not available or that [the probation’s department’s proposed residential
       Court of Appeals of Indiana | Memorandum Decision 46A03-1604-JV-945 | November 29, 2016   Page 7 of 10
       facility] was the most appropriate facility.” (Appellant’s Br. at 14.) Here, the

       predispositional report indicated that J.H. had two previous true findings,

       multiple diagnoses, and a history of school suspensions. Mother had been

       trying to find residential placement for J.H., but was unable to find a facility

       that would accept him. At the hearing, the probation officer observed that J.H.

       had previously been provided Level 1 home detention, Level 2 home detention,

       supervised probation, administrative probation, GPS monitoring, secure

       detention, and non-secure detention. J.H. had also received outpatient and

       inpatient care as well as counseling, therapy, psychiatric services, and

       medication management. Two psychiatrists wrote letters recommending

       residential placement. Moreover, at the hearing, Mr. Bunch (“Bunch”), a

       licensed therapist who submitted a report, opined that residential placement

       was best for J.H. and noted that J.H. “flourish[es] under [the] structure and

       consistency” of a secure facility. (Tr. 90-91).


[17]   The statute requires placement in the least restrictive setting only if such

       placement is “consistent with the safety of the community and the best interest

       of the child.” I.C. § 31-37-18-6. Here, the juvenile court heard that a series of

       less-restrictive options had not been effective, and several professionals opined

       that placement was in J.H.’s best interests. We cannot say that the trial court

       abused its discretion when placing J.H. in the residential facility, or by ordering

       that J.H. stay in the detention facility until a bed in the residential facility was

       available.




       Court of Appeals of Indiana | Memorandum Decision 46A03-1604-JV-945 | November 29, 2016   Page 8 of 10
[18]   J.H. further argues that the juvenile court erred because “no testimony was

       presented from probation and there was no opportunity for J.H.’s counsel to

       cross examine witnesses regarding the pre-dispositional report, probation’s

       recommendation and the reports from J.H.’s psychologists.” (Appellant’s Br. at

       14). The record reflects, however, that during the dispositional phase of the

       hearing—which J.H. elected to immediately begin—the probation department

       did offer its recommendation. J.H. did not cross-examine the probation

       department’s statements, call witnesses, or challenge the content of the

       predispositional report. J.H. did remark that he was not aware of Bunch’s

       report. In response, the juvenile court noted that it had asked about proceeding

       to disposition because it “didn’t know if [J.H.] wanted time to review things

       and come back at another time[,]” and would consider postponing, but J.H. did

       not respond. (Tr. at 91.)


[19]   We find that, contrary to J.H.’s characterization, it was not that J.H. was

       deprived of any opportunity but that J.H. did not take advantage of the

       opportunity that was presented to him. Accordingly, J.H. has waived this line

       of argument. See Dillard v. State, 827 N.E.2d 570, 577 (Ind. Ct. App. 2005)

       (finding waiver in the criminal context where a defendant, “having been

       afforded the opportunity to review the [presentence investigation] report[,] . . .

       fail[ed] to register an objection to the information contained therein . . . .”),

       trans denied.




       Court of Appeals of Indiana | Memorandum Decision 46A03-1604-JV-945 | November 29, 2016   Page 9 of 10
                                               Conclusion
[20]   The evidence is sufficient to support J.H.’s adjudication of Leaving Home

       Without Permission and the trial court did not abuse its discretion in ordering

       that J.H. be placed in a residential facility.


[21]   Affirmed.


       Najam, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 46A03-1604-JV-945 | November 29, 2016   Page 10 of 10
