Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
Oct 18 2013, 5:40 am
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:
CARA SCHAEFER WIENEKE GREGORY F. ZOELLER
Special Asst. to the State Public Defender Attorney General of Indiana
Wieneke Law Office, LLC
Plainfield, Indiana JOSEPH Y. HO
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
J.M., )
)
Appellant-Respondent, )
)
vs. ) No. 52A02-1304-JV-361
)
STATE OF INDIANA, )
)
Appellee-Petitioner. )
APPEAL FROM THE MIAMI SUPERIOR COURT
The Honorable Daniel C. Banina, Judge
Cause No. 52D02-1210-JD-44
October 18, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
BRADFORD, Judge
CASE SUMMARY
Appellant-Respondent J.M. appeals from the juvenile court’s order placing him
with the Department of Correction (“DOC”) after he admitted to theft from a Burger
King restaurant. J.M. argues that the DOC placement is an abuse of the court’s discretion
because it is not the least restrictive and most appropriate setting as contemplated by
Indiana Code section 31-37-18-6. Appellee-Petitioner the State of Indiana argues that the
DOC placement is in J.M.’s best interest and, therefore, need not be the least restrictive
or most appropriate setting. We agree with the State. Finding J.M. to have persistently
exhibited aggressive, self-destructive, and criminal behavior to the point that all suitable
facilities have rejected him for admission to their programs, we conclude that the juvenile
court did not abuse its discretion in placing J.M. with the DOC. We affirm.
FACTS AND PROCEDURAL HISTORY
At all times relevant to this matter, J.M. had been diagnosed with bipolar disorder
and attention deficit hyperactivity disorder, for which he was prescribed an ever-changing
combination of medications. At certain times, however, J.M. went un-medicated because
his medications had expired or run out. An additional diagnosis of oppositional defiant
disorder was made during the proceedings below.
At approximately 3:00 a.m. on September 25, 2012, fourteen-year-old J.M.
entered a Burger King restaurant after hours, attempted to prepare some food, and
consumed several beverages. Burger King employees reported the incident later that day,
and police were able to identify J.M. from the restaurant’s surveillance video. J.M. was
apprehended on September 26, 2012, and detained in secure custody at the Robert J.
Kinsey Youth Center (“the Youth Center”). The State filed a delinquency petition
alleging J.M. committed: Count I, burglary, a Class C felony if committed by an adult;
and Count II, theft, a Class D felony if committed by an adult. J.M. ultimately entered an
admission to Count II, and the State dismissed Count I.
On September 26, 2012, the juvenile court held an emergency detention hearing,
during which J.M.’s probation1 officer, Mandy Miller, testified that “[J.M.] is a danger to
himself or others.” Tr. p. 6. Officer Miller recommended that J.M. remain detained at
the Youth Center because he had violated probation, his juvenile history was extensive,
and prior placements had been unsuccessful. J.M.’s father, R.M. (“Father”), also testified
at the hearing. Father explained that J.M. had behaved well while living at home and
during treatment at Machiana Behavioral Healthcare (“Machiana”) but that a new
treatment provider had changed his medications. Since then, Father opined, J.M. had
been in trouble constantly. Father recommended that J.M. be placed on home detention
so that he could return to Machiana for treatment. The juvenile court ordered J.M.
detained in secure custody at the Youth Center.
In October of 2012, J.M. was transferred from the Youth Center to a less
restrictive facility, Family Services Society (“FSS”), for a psychiatric evaluation. While
at FSS, J.M. did not follow staff instructions, threw several temper tantrums, and engaged
in sexually inappropriate conduct. At a November 8, 2012 detention hearing, Officer
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Earlier in 2012, J.M. was separately found delinquent for committing the offenses of battery,
theft, and runaway.
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Miller testified that J.M. had behaved better with the more restrictive placement at the
Youth Center. Father also testified at the hearing and attributed J.M.’s declining behavior
to his lack of medication. The court ordered that J.M. be returned to secure custody at the
Youth Center.
On December 12, 2012, the trial court held a dispositional hearing. At the hearing,
Officer Miller testified as follows regarding J.M.’s behavior at the Youth Center:
It’s been horrific. He’s been in constant trouble at Kinsey. He’s been
locked down numerous times. He’s battered someone while he’s been at
Kinsey. He’s disrespectful to staff. He’s disrespectful to peers. He’s been
removed from class on a regular basis. Uh, I think they’ve locked him
down six times since he’s been there.
Tr. p. 37. Officer Miller also testified that, because of J.M.’s aggressive behavior,
White’s Residential and Family Services (“White’s”) was the only suitable placement
that would accept him. When questioned about the possibility of placing J.M. at
Machiana, Officer Miller testified that it was unsuitable because J.M. needs a behavioral
modification program that Machiana does not provide. When questioned about the
possibility of placing J.M. on home detention, Officer Miller expressed concerns with
J.M.’s history of running away and his aggressive behavior. The juvenile court ordered
J.M. placed at White’s and under the supervision of the Miami County Probation
Department (“MPCD”).
On February 4, 2012, the MCPD filed a verified petition for modification of
dispositional decree, requesting that J.M. be removed from White’s because of his failure
to follow program rules. The juvenile court held a detention hearing that same day, at
which Officer Miller testified that J.M. had left White’s without permission, stolen
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things, been in multiple fights, and possessed banned substances. On one occasion, after
being confronted about his misbehavior, J.M. returned to his room and started a fire with
a toaster. During his forty-seven days at White’s, J.M. spent twenty-one days in the
disciplinary unit and was involved in at least twenty-three incidents. The juvenile court
ordered J.M. returned to secure custody at the Youth Center.
On March 13, 2013, the juvenile court held a dispositional hearing, during which
Officer Miller described J.M.’s continued misbehavior at the Youth Center. Officer
Miller testified that J.M. threatened to assault peers and staff, urinated on his lunch tray,
and flooded his room with toilet water. Officer Miller further testified that she had
attempted to find alternate placements for J.M. and had referred him to numerous
facilities. But the only facility to accept J.M. was the Lexington Academy, a placement
J.M. adamantly opposed. At the hearing, Father again argued that J.M.’s behavior had
been appropriate when he was properly medicated, which only occurred during his
treatment at Machiana. Father requested that J.M. be placed on home detention so that he
could return there.
When questioned about a Machiana placement, Officer Miller testified that the
facility did not accept J.M.’s type of cases. With regard to home detention, Officer
Miller opined:
[J.M.] struggles, has struggled in residential placements, he’s struggled in
secure detention, he’s struggle in shelter care. He’s struggled previously
prior to those placements at home, at his father’s home. Uh, at this point I
don’t feel like home detention is beneficial. In-home detention doesn’t
offer any sort of long lasting deterrent. It’s basically just a way to confine
somebody to their home.
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Tr. p. 140. Officer Miller further testified that she saw no “viable alternative” except for
placement with the DOC. Tr. p. 140.
On April 18, 2013, the juvenile court issued its dispositional order, in which it
found, among other things, that home detention “would not provide the structure and care
that [J.M.] needs to redirect his poor behavior” and, therefore, “would be contrary to the
welfare of the child.” Appellant’s App. p. 185. The trial court ordered J.M. placed with
the DOC.
DISCUSSION AND DECISION
J.M. argues that the juvenile court abused its discretion in placing him with the
DOC. “[T]he juvenile court is accorded wide latitude and great flexibility in its dealings
with juveniles[,]” and as such, “the choice of the specific disposition of a juvenile
adjudicated a delinquent child … will only be reversed if there has been an abuse of that
discretion.” J.S. v. State, 881 N.E.2d 26, 28 (Ind. Ct. App. 2008). “An abuse of
discretion occurs when the juvenile court’s action is clearly erroneous and against the
logic and effect of the facts and circumstances before the court or the reasonable,
probable, and actual inferences that can be drawn therefrom.” Id.
“The juvenile court’s discretion is subject to the statutory considerations of the
welfare of the child, the safety of the community, and the policy of favoring the least
harsh disposition.” Id. Indiana Code section 31-37-18-6 controls here and 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:
(A) in the least restrictive (most family like) and most
appropriate setting available; and
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(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.
J.M. claims that the DOC placement is neither the least restrictive nor the most
appropriate setting available because J.M. exhibited his best behavior while living at
home. This claim is misguided.
Indiana Code section 31-37-18-6 “recognizes that in certain situations the best
interest of the child is better served by a more restrictive placement.” K.A. v. State, 775
N.E.2d 382, 387 (Ind. Ct. App. 2002). “[T]here are times when commitment to a suitable
public institution is in the best interest of the juvenile and of society.” D.S. v. State, 829
N.E.2d 1081, 1085 (Ind. Ct. App. 2005) (quotation omitted). Here, the juvenile court
determined that the DOC placement and not home detention was in J.M.’s best interest.
This determination is supported by the record. Since the initiation of this matter, J.M. has
been detained in facilities with varying degrees of restrictiveness and has struggled in all
of them. J.M. has continued to exhibit aggressive, self-destructive, and criminal behavior
to the point that all but one facility have rejected him for admission to their programs. In
light of J.M.’s “horrific” and persistent misbehavior, we hold that the juvenile court did
not abuse its discretion in placing J.M. with the DOC.
The judgment of the juvenile court is affirmed.
BAILEY, J., and MAY, J., concur.
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