MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Dec 30 2020, 9:14 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Joel C. Wieneke Curtis T. Hill, Jr.
Wieneke Law Office Attorney General of Indiana
Brooklyn, Indiana Jodi Kathryn Stein
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
K.P., December 30, 2020
Appellant-Defendant, Court of Appeals Case No.
20A-JV-1431
v. Appeal from the Lake Superior
Court
State of Indiana, The Honorable Jeffrey Miller,
Appellee-Plaintiff. Magistrate
Trial Court Cause No.
45D06-1911-JD-643
Brown, Judge.
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[1] K.P. appeals the juvenile court’s order committing him to the Indiana
Department of Correction (the “DOC”). We affirm.
Facts and Procedural History
[2] On November 6, 2019, the State filed a verified petition under cause number
45D06-1911-JD-643 (“Cause No. 643”) alleging K.P. was delinquent for
committing auto theft, resisting law enforcement, and criminal recklessness,
level 6 felonies if committed by an adult, and reckless driving and operating a
motor vehicle without ever receiving a license, class C misdemeanors if
committed by an adult.
[3] On November 14, 2019, the court held an initial hearing at which K.P. and his
counsel, mother, and stepfather were present. K.P.’s counsel indicated K.P.
denied the allegations.
[4] On November 21, 2019, the court held a hearing at which K.P. and his mother
and counsel appeared. K.P.’s counsel indicated that K.P. would admit to auto
theft and resisting law enforcement. During a discussion, the court asked K.P.
if he agreed to “In-house level 2 which is a monitor on your ankle,” and K.P.
answered: “I’m cool with that, Your Honor.” Transcript Volume II at 15. K.P.
admitted to auto theft and resisting law enforcement.
[5] That same day, the court entered an Order on Plea Agreement and
Dispositional Decree in which it found K.P. admitted to auto theft and resisting
law enforcement, level 6 felonies if committed by an adult. The order observed
that the State dismissed the remaining allegations under Cause No. 643 as well
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as allegations of auto theft, criminal recklessness, reckless driving, and
operating a motor vehicle without ever receiving a license under a separate
cause number. The court committed K.P. to the Lake County Juvenile Center
for sixty days and suspended the commitment on the condition that K.P.
comply with the terms of the order. The court placed K.P. on probation for six
months, ordered him to complete forty hours of community service by April 1,
2020, and to participate in home-based services through Choices, and placed
him on “InHouse-2” for sixty days. Appellant’s Appendix Volume II at 35.
[6] On January 15, 2020, the Probation Department filed a Probation Request to
Extend In-House Arrest, Level 2, which alleged that K.P. had accumulated
multiple violations, indicated that the Probation Department would like to
provide K.P. an opportunity to improve his behavior, and requested that the
court extend K.P.’s In-House Arrest, Level 2, for an additional sixty days. The
request also stated that the Probation Department spoke with K.P.’s mother
and “she is in agreement with [K.P.’s] In-House being extended, as mother
indicated that she works in Chicago, IL and she is unable to account for
[K.P.’s] behavior.” Id. at 38. On January 21, 2020, the court extended K.P.’s
In-House Arrest, Level 2, for an additional sixty days.
[7] On March 6, 2020, the Probation Department filed a verified petition to detain
K.P. alleging that he had accumulated multiple violations in February and
March for leaving the home “and not having a callout,” and tested positive for
THC. Id. at 44. On March 10, 2010, the court entered an Order to Detain,
which granted the State’s petition, found that K.P. had violated the conditions
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of in-home detention, and stated that a bench warrant for K.P. would be issued.
That same day, the court issued a bench warrant for K.P.
[8] On March 11, 2020, the court held a detention hearing at which K.P. appeared
with counsel. K.P. indicated he was seventeen years old, understood his rights,
and admitted to leaving his house. Probation Officer Alphonso Royal indicated
he spoke with K.P.’s mother that morning and she stated that she was not going
to attend the hearing. Officer Royal stated that K.P. had accumulated about six
violations of in-house arrest by January 15th, he spoke with K.P. and his
mother about the possibility of being in detention as a result of violating the
rules of in-house arrest, and K.P. and his mother decided that he would rather
remain on in-house arrest for an additional extended time rather than being
detained. He also stated the court granted that extension and allowed K.P. to
continue with services, but “we came across another series of violations of in-
house arrest.” Transcript Volume II at 24. The prosecutor recommended that
K.P. remain detained and asserted that K.P. flagrantly flaunted the rules of in-
house arrest.
[9] K.P.’s counsel indicated K.P.’s mother was not present, that he would call her
as a witness, and “it’s whether or not she’s willing and able to take her son
home. It’s not possible. So at this time, I have no evidence to offer to the
Court.” Id. at 25.
[10] The court asked Rhonda Collins from Choices how K.P. was doing in the
program, and she indicated that he was typically compliant with his service
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providers, but did not comply with services in a recent incident. She also stated
that he had “one negative drug screen,” “[b]ut other than that, they’ve all been
positive,” and “the only thing that is guaranteed is that he is testing positive for
marijuana and/or alcohol depending on the day.” Id. at 26.
[11] The court found reasonable efforts were made to prevent or eliminate the need
for K.P.’s removal, such efforts had not been successful, and it was in K.P.’s
best interest to remain detained. The court stated that K.P.’s mother was not
present and it could not release K.P. unless a parent was present.
[12] On March 11, 2020, the Probation Department filed a Verified Motion for
Modification which requested the court to make a preliminary inquiry to
determine whether the interests of the public or the child required that further
action to be taken. That same day, the court entered an Order on Detention
Hearing finding that K.P. should be detained in secure detention at the Lake
County Juvenile Center because detention was essential to protect K.P. and the
community, and the parent, guardian, or custodian could not be located or was
unable or unwilling to take custody of K.P.
[13] On May 14, 2020, the court held a modification hearing at which K.P. and his
counsel and mother were present. K.P. admitted to violating probation by
testing positive for marijuana and being suspended from Gary Middle College.
Officer Royal recommended that K.P. be committed to the DOC. He stated
that a psychological evaluation K.P. received recommended that he be placed
in a structured setting to address his oppositional defiant disorder, and he
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testified that “probation feels that the more structured setting at the [DOC] is
where he can get proficient in school work.” Id. at 34.
[14] The court asked about residential placement, and Officer Royal answered:
Well, one part of the pysch [sic] is discussing that vocation or
services related to vocation being . . . ideal for [K.P.] because of
his cognitive abilities. The [DOC] is geared to provide a
vocation, or trade and then they also could address the behavior
modification piece of [K.P.’s] actions and behaviors.
Id. at 36. The prosecutor concurred with the recommendation.
[15] K.P.’s counsel stated:
[K.P.’s] record is pretty clear. He’s had many chances and he’s
had many violations. The violations point to a child that really
needs services. Yes, he violated, smoked marijuana, didn’t
complete the middle college. He did all those things, but that’s a
reflection on our system. That’s a reflection on the system that
we set up to help him. It’s an indication that it hasn’t worked.
Of course, if he had his preference, he would say in-house arrest
level 2; but given the psychological, perhaps, something like
placement would be more appropriate. And contrary to what
Counsel had argued, our feeling is that the DOC is a form of
punishment and will not help to put him on the right track.
Id. at 37.
[16] The court admitted the February 14, 2020 psychological assessment and
indicated that it needed to read the report and would take the matter under
advisement. That same day, the court entered an Order on Modification
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Hearing, which found that K.P. admitted to the allegations in the Petition to
Modify and indicated that the court took the disposition under advisement.
[17] On June 15, 2020, the court entered a Modified Dispositional Decree which
awarded wardship of K.P. to the DOC for housing in any correctional facility
for children.
Discussion
[18] K.P. argues that the juvenile court violated his right to due process by extending
his in-house arrest for an additional sixty days without a hearing and later by
pronouncing his commitment to the DOC without reconvening the hearing.
He argues the court’s delay of over a month violated Article 1, Section 12 of the
Indiana Constitution, and that the court abused its discretion by committing
him to the DOC.
[19] To the extent K.P. asserts that the juvenile court violated his due process rights
by extending his in-house arrest for an additional sixty days in its January 21,
2020 order, the record reveals that the January 15, 2020 Request to Extend In-
House Arrest, Level 2, stated that K.P.’s mother was “in agreement with
[K.P.’s] In-House being extended, as mother indicated that she works in
Chicago, IL and she is unable to account for [K.P.’s] behavior.” 1 Appellant’s
Appendix Volume II at 38. At the March 11, 2020 hearing, Officer Royal
1
The January 15, 2020 Request to Extend In-House Arrest, Level 2, indicated that the pleading had been
served upon K.P. and his mother.
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testified that K.P. had accumulated about six violations of in-house arrest by
January 15th, he spoke with K.P. and his mother about the possibility of being
in detention as a result of violating the rules of in-house arrest, and “both
[K.P.’s mother] and [K.P.] decided that he would rather remain on in-house
arrest for an additional extended time rather than being detained as a result of
violating in-house arrest.” Transcript Volume II at 24. Under the
circumstances, including that K.P. and his mother agreed to the extension and
K.P. did not appeal the court’s January 21, 2020 order, we cannot say reversal
is warranted.
[20] As for K.P.’s argument that the juvenile court’s taking the disposition under
advisement for over a month denied him his right to justice without delay,
Article 1, Section 12 of the Indiana Constitution provides that “[j]ustice shall be
administered . . . speedily, and without delay.” The Indiana Supreme Court
has held that “in the context of juvenile dispositions, the juvenile has an
undeniable interest in the speedy entry of a final order.” Matter of Tina T., 579
N.E.2d 48, 61 (Ind. 1991). “However, [the juvenile’s] interest in being placed
appropriately is paramount,” and “[h]aving the placement decision made soon
must yield to having it made well . . . .” Id. “Juvenile courts are not subject to
the thirty-day rule which governs criminal sentencing courts. Like criminal
courts, however, they should be prompt and should enter their final dispositions
within a reasonable time.” Id.
[21] The record reveals the court admitted the February 14, 2020 psychological
assessment near the end of the May 14, 2020 hearing and indicated that it
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needed to read the report and would take the matter under advisement. The
court also stated: “You’ll have my answer within a couple of days, beginning of
next week.” Transcript Volume II at 42. That same day, the court entered an
order indicating that it took the disposition under advisement. Thirty-two days
after the hearing, on June 15, 2020, the court entered a Modified Dispositional
Decree. While such a delay is not a best practice, we cannot say K.P. was
denied his rights or that the delay requires reversal.
[22] With respect to K.P.’s argument that he should have been present when the
court committed him to the DOC, he cites Ind. Code § 35-38-1-4, which
provides that “[t]he defendant must be personally present at the time sentence is
pronounced.” The State notes that the juvenile code does not have a similar
statutory provision, and K.P. does not direct our attention to such a provision.
K.P. was present with counsel at the November 14, 2019, November 21, 2019,
and March 11, 2020 hearings. Further, at the May 14, 2020 modification
hearing, K.P. and his mother were present, and K.P. and his counsel argued
with respect to his placement. We cannot say reversal is warranted on this
basis.
[23] To the extent K.P. challenges his commitment to the DOC, the juvenile court is
given wide latitude and great flexibility in determining the disposition of a
delinquent child. 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 that, “[i]f consistent with the safety of the community and the best
interest of the child,” the juvenile court shall enter a dispositional decree that is
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“in the least restrictive (most family like) and most appropriate setting
available” and “close to the parents’ home, consistent with the best interest and
special needs of the child”; least interferes with family autonomy; is least
disruptive of family life; imposes the least restraint on the freedom of the child
and the child’s parent, guardian, or custodian; and provides a reasonable
opportunity for participation by the child’s parent, guardian, or custodian.
Under the statute, placement in the least restrictive 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) (citing
Ind. Code § 31-37-18-6). We review the juvenile court’s disposition for an
abuse of discretion. R.H. v. State, 937 N.E.2d 386, 388 (Ind. Ct. App. 2010).
[24] The record reveals that K.P. admitted to auto theft and resisting law
enforcement at the November 21, 2019 hearing. At the March 11, 2020
hearing, K.P. admitted to leaving his house. Officer Royal stated that K.P. had
accumulated about six violations of in-house arrest by January 15th and that
another series of violations of in-house arrest occurred. Collins from Choices
stated that “the only thing that is guaranteed is that he is testing positive for
marijuana and/or alcohol depending on the day.” Transcript Volume II at 26.
At the May 14, 2020 hearing, K.P. admitted to violating probation by testing
positive for marijuana and being suspended from Gary Middle College. Officer
Royal recommended that K.P. be committed to the DOC based upon the
psychological assessment. While K.P.’s counsel argued placement in the DOC
was a form of punishment that would not help place K.P. on the right track, he
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acknowledged K.P. had many chances and numerous violations and that he
needs services.
[25] The psychological assessment of K.P. concluded in part:
His behavior is consistent with that of a young man who is used
to doing what he wants for the most part due to lack of
supervision and follow through. In conjunction with his limited
cognitive functioning, ongoing and increasingly severe problems
can be expected. Without a significant change in his situation,
the prognosis is poor. It does not seem that even with increased
support, that [K.P.’s] home will offer the necessary supervision
and structure, so he may benefit from a residential program that
can, plus provide training that may help him make a successful
transition to adulthood.
State’s Exhibit 1 at 12. The assessment recommended “placement in a secure
facility that can provide behavioral structure, functional academics, and job
training . . . .” Id.
[26] Based upon the record and under the circumstances, we conclude that the
court’s ordered placement is consistent with K.P.’s best interests and the safety
of the community and find no abuse of discretion. See D.E. v. State, 962 N.E.2d
94, 97 (Ind. Ct. App. 2011) (holding the juvenile court did not abuse its
discretion in placing D.E. in a DOC facility where earlier attempts to
rehabilitate his behavior were unsuccessful).
[27] For the foregoing reasons, we affirm the juvenile court.
[28] Affirmed.
Vaidik, J., and Pyle, J., concur.
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