MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before any Jul 31 2018, 8:37 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
Zachary J. Stock Curtis T. Hill, Jr.
Zachary J. Stock, Attorney at Law, P.C. Attorney General of Indiana
Indianapolis, Indiana
George P. Sherman
Supervising Deputy Attorney
General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
T.L., July 31, 2018
Appellant-Respondent, Court of Appeals Case No.
18A-JV-250
v. Appeal from the Hendricks
Superior Court
State of Indiana, The Honorable Karen M. Love,
Appellee-Petitioner. Judge
Trial Court Cause No.
32D03-1712-JD-232
Robb, Judge.
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Case Summary and Issues
[1] Following T.L.’s admission to an act that would have constituted battery with a
deadly weapon, a Level 5 felony if committed by an adult, the juvenile court
placed T.L. in the care of the Indiana Department of Correction (“DOC”).
T.L. now appeals, raising two issues for our review: (1) whether the juvenile
court committed reversible error when it decided T.L. would wear restraints
during her combined admission and dispositional hearing, and (2) whether the
juvenile court abused its discretion when it placed T.L. with the DOC. Finding
no fundamental error in the fact that T.L. wore restraints during the combined
hearing before the juvenile court and that the juvenile court acted within its
discretion when it placed T.L. with the DOC, we affirm.
Facts and Procedural History
[2] On November 27, 2017, fifteen-year-old T.L. went to a park in Danville to
confront A.S. about a pair of T.L.’s shoes that T.L. felt A.S. wrongfully
possessed. The two had been arguing previously, and T.L. came to the park
armed with a pair of brass knuckles in her pocket. T.L. and A.S. became
involved in a physical altercation. T.L. struck A.S. in the face with the brass
knuckles, causing A.S. to seek treatment at the hospital for an injury above her
left eye.
[3] On December 7, 2017, the State filed a petition alleging that T.L. was
delinquent. The juvenile court issued an emergency detention order for T.L.,
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finding that there was evidence that she was a threat to public safety because
she had a history of battery, she had another battery case pending at the time,
and because the instant offense involved the use of a deadly weapon.
[4] T.L. was detained on December 18, 2017, and remained in detention until her
next hearing on January 8, 2018. T.L. was represented by counsel. At the
beginning of the hearing, the juvenile court noted that T.L. wore restraints 1
“since this is a crime of violence and I haven’t made a decision about what the
outcome is going to be here.” Transcript, Volume 2 at 18-19. T.L. did not
object to wearing restraints.
[5] T.L.’s counsel acknowledged that it was unlikely that a residential facility
would accept T.L. for treatment because T.L. had already had a residential
placement and because her current adjudication was for a violent act. T.L.
admitted that she had committed the acts alleged in the State’s delinquency
petition. T.L. explained that her father had counseled her not to fight A.S., but
her friends had encouraged her to do so. T.L. had possessed the brass knuckles
for a number of months before her encounter with A.S. T.L. knew that brass
knuckles were potentially lethal but maintained that she had not intended to
injure A.S.
[6] The juvenile court entered a true-finding, and the matter proceeded to
disposition. The juvenile court noted that “the issue now is what – what is the
1
The record does not disclose the nature of the restraints or how T.L. came to be restrained.
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best and most appropriate, um, plan going forward in terms of how we – [T.L.]
gets redirected.” Id. at 31. Dwight Stevenson of the Hendricks County
Probation Department, who had twenty-four years of experience, provided the
following information at T.L.’s dispositional hearing. T.L. had been referred
for her first battery adjudication in 2016. As part of the resolution of that case,
the State dismissed a pending illegal consumption of an alcoholic beverage
case, and T.L. was placed on probation. T.L. was released from that probation
due to being found to be a child in need of services (“CHINS”). T.L. was
placed in a residential treatment facility for six months during the CHINS case.
After she completed residential treatment, T.L. admitted that she was still using
illegal substances. T.L. had been suspended from school for fighting and had
school attendance issues. T.L. was referred in September of 2017 for a battery
adjudication. Stevenson had just met with T.L. regarding that matter when she
committed the acts that formed the basis for the instant adjudication. It was
Stevenson’s opinion that T.L. would not comply with probation or home
detention without electronic monitoring or some other form of direct
supervision.
[7] Lee Anne Owens, who had been T.L.’s court appointed special advocate in the
CHINS case, also appeared at the dispositional hearing and testified to the
following. Cross Systems of Care was a service offered through probation that
T.L. had not yet been through, but T.L. would not be a suitable candidate for
probation without being on house arrest or home detention. T.L. would not
stay at home if not supervised when her father was at work. T.L. required a
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“drastic intervention” and required an “enormous” amount of supervision. Id.
at 40, 42. T.L. had significant unaddressed mental health issues but had been
known to resist treatment in the past. During Owens’ testimony, T.L.’s counsel
acknowledged that Hendricks County probation did not offer electronic
monitoring. T.L.’s father confirmed that there was no one else in his home to
supervise T.L. when he was at work during the day.
[8] At the conclusion of the dispositional hearing, the juvenile court found that
probation could not devise a plan for T.L. to meet her needs. In its written
dispositional order, the juvenile court noted T.L.’s previous contacts with the
juvenile justice system, her poor school performance, her need for substance
abuse counseling, and her inability to cope with anger and frustration.
Appellant’s Appendix, Volume II at 32-33. The juvenile court found that T.L.’s
delinquent activity was accelerating and that she required a high level of
supervision that she could not receive in the community. Id. at 33. The
juvenile court found that without a structured and secure environment where
T.L. could receive services to address her substance abuse, coping skills, anger
management skills, and education, T.L. would continue to be a threat to public
safety. Id. The juvenile court placed T.L. with the DOC for an indeterminate
commitment. Id. at 34.
Discussion and Decision
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I. Use of Restraints
[9] T.L. contends that we should reverse the juvenile court’s dispositional order
because she wore restraints during the combined admission and dispositional
hearing. As an initial matter, we note that T.L. did not object to wearing
restraints at the hearing. As a general rule, issues raised for the first time on
appeal are waived for our review. See In re K.S., 750 N.E.2d 832, 834 n.1 (Ind.
Ct. App. 2001) (holding that an allegation of a due process violation raised for
the first time on appeal was waived). T.L. acknowledges the import of her
failure to object to wearing restraints, and she urges us to examine this issue for
fundamental error. See Appellant’s Brief at 8-9. “The ‘fundamental error’
exception is extremely narrow, and applies only when the error constitutes a
blatant violation of basic principles, the harm or potential for harm is
substantial, and the resulting error denies the defendant fundamental due
process.” R.W. v. State, 975 N.E.2d 407, 411 (Ind. Ct. App. 2012) (examining
the concept of fundamental error in a delinquency proceeding) (citation
omitted), trans. denied. Fundamental error is defined as an error so prejudicial
to the rights of a juvenile that a fair hearing is rendered impossible. Id.
[10] The use of restraints in a juvenile proceeding is addressed in Indiana Code
section 31-30.5-2-1(a), which provides that
a juvenile shall not be restrained in court unless the court has
determined on the record, after considering the recommendation
of the sheriff or transport officer, that the juvenile is dangerous or
potentially dangerous.
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Thus, in order to justify placing or maintaining a juvenile in restraints, the
juvenile court must consider any recommendations from the authority
transporting the juvenile to court and make a determination on the record that
the juvenile is dangerous or potentially dangerous. In this case, there is nothing
in the record that indicates that a recommendation for restraint by the
transporting authority was made to, or considered by, the juvenile court, and
the juvenile court did not make any determinations on the record that T.L. was
dangerous or potentially dangerous.
[11] However, we cannot conclude that T.L. was deprived of a fair hearing by the
juvenile court’s failure to observe the procedure required by statute. A primary
concern about having a defendant in a criminal trial appear in shackles or
restraints before a jury is that it may dilute the presumption of innocence or
cause the jury to base its verdict on extraneous factors. Ritchie v. State, 875
N.E.2d 706, 718 (Ind. 2007). That concern is not implicated where, as here, a
juvenile elects to admit to delinquency allegations before the juvenile court
judge, who is presumed to be impartial. See Garland v. State, 788 N.E.2d 425,
433 (Ind. 2003) (“The law presumes that a judge is unbiased and
unprejudiced”). In addition, T.L. does not argue that there was a nexus
between her admission to the delinquency allegations and the fact that she wore
restraints at her admission and dispositional hearing. Although the statutes do
not permit, and we do not condone, the prophylactic use of restraints in a
juvenile delinquency proceeding, we find that T.L.’s substantial rights were not
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substantially impacted, and, thus, we will not disturb the juvenile court’s
delinquency order.
II. Least Restrictive Placement
[12] T.L. also argues that the juvenile court abused its discretion when it placed her
with the DOC because other less-restrictive options existed. See Appellant’s Br.
at 10-12. “The choice of the specific disposition of a juvenile adjudicated a
delinquent child is a matter within the discretion of the juvenile court and we
will reverse a dispositional order only if there has been an abuse of that
discretion.” D.C. v. State, 935 N.E.2d 290, 292 (Ind. Ct. App. 2010), aff’d on
trans., 958 N.E.2d 757 (Ind. 2011).
[13] Indiana Code section 31-37-18-6 provides the following:
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;
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(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.
[14] Therefore, although the statute generally requires that the juvenile court choose
the least restrictive placement available, it only requires the least restrictive
placement that is consistent with the safety of the community and the best
interests of the juvenile. In some instances, a more restrictive placement is
appropriate in light of those considerations. J.S. v. State, 881 N.E.2d 26, 28-29
(Ind. Ct. App. 2008).
[15] T.L. argues that the juvenile court abused its discretion because it rejected the
possibility of probation and informal home detention for her and assumed that
the DOC was the only option. See Appellant’s Br. at 11-12. However, by the
time of the instant matter, T.L. was fifteen years old and had already received
probation for another battery true-finding in 2016. T.L. had also had six
months of treatment in a residential facility. Despite having had the benefit of
those services, T.L. had two additional contacts in quick succession with the
juvenile justice system for battery. Indeed, T.L. had just met with Stevenson
regarding one battery matter when she committed the act which resulted in her
current adjudication, which was for an act that would have been battery with a
deadly weapon if committed by an adult. Thus, not only had T.L. failed to
redirect her behavior through probation and residential treatment, but the
seriousness of her violence was escalating.
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[16] In addition, T.L. had been suspended from school for fighting, she had school
attendance issues, she continued to abuse substances, and she had unaddressed
mental health and impulse control issues. Stevenson and Owens both indicated
that T.L. could only succeed on probation and home detention if she were
intensively supervised. However, Hendricks County did not provide electronic
monitoring, and T.L.’s father worked during the day, leaving no one in the
home to monitor T.L. as intensively as she required. Therefore, contrary to
T.L.’s assertion on appeal, the juvenile court had more than an
“unsubstantiated belief” that probation and home detention were not a
possibility for T.L. See Appellant’s Br. at 11. In addition, T.L.’s argument that
the juvenile court should have considered residential treatment as a less
restrictive placement, see id. at 12, is inconsistent with her counsel’s
acknowledgment at the hearing that such a placement was unlikely. Given
that, even after having received probation and residential treatment in the past,
T.L.’s pattern of violence had continued and escalated, the lack of options for
supervision in the community, and that T.L. continued to require services, the
juvenile court did not abuse its discretion when it concluded that DOC was the
most appropriate placement option for T.L.
Conclusion
[17] Concluding that T.L.’s substantial rights were not prejudiced by the wearing of
restraints at her combined admission and dispositional hearing and that the
juvenile court did not abuse its discretion by ordering T.L. committed to the
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DOC rather than to a less restrictive placement, we affirm the juvenile court’s
dispositional order.
[18] Affirmed.
Najam, J., and Altice, J., concur.
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