B.O. v. State of Indiana ( 2012 )

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
FILED
Mar 16 2012, 9:30 am
court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case. CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
MARK I. COX GREGORY F. ZOELLER
The Mark I. Cox Law Office Attorney General of Indiana
Richmond, Indiana
GARY R. ROM
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
B.O., )
)
Appellant-Defendant, )
)
vs. ) No. 89A01-1111-JV-503
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE WAYNE SUPERIOR COURT
The Honorable Darrin M. Dolehanty, Judge
Cause No. 89D03-1109-JD-39
March 16, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
FRIEDLANDER, Judge
The Wayne Superior Court III entered a true finding that sixteen-year-old B.O. had
committed acts that, if committed by an adult, would constitute the crimes of theft as a class
D felony and consumption of an alcoholic beverage by a minor as a class C misdemeanor.
Following a dispositional hearing, the trial court placed B.O. with the Department of
Correction (the DOC). As the sole issue on appeal, B.O. challenges that placement.
We affirm.
The facts favorable to the judgment are that on June 26, 2011, B.O. stole several
packages of beef jerky from a convenience store and later that day consumed alcohol, i.e.,
beer. On September 26, 2011, the State filed a delinquency petition alleging that B.O. had
committed acts that, if committed by an adult, would constitute the offenses of theft and
illegal consumption of an alcoholic beverage by a minor. On October 11, 2011, B.O.
admitted that the allegations were true. A dispositional hearing was held on October 18
concerning B.O.’s placement, after which the court awarded wardship of B.O. to the DOC.
The court’s decision was accompanied by the following findings of fact:
1. This child is a delinquent child as defined by I.C. 31-37.
2. This child needs care, treatment, and rehabilitation to assist him in
achieving a healthy, law-abiding lifestyle, and to aid the child in
eventually becoming a productive adult member of society.
3. It is unlikely that the child would receive the appropriate level of
care, treatment, or rehabilitation without the coercive intervention of
the Court.
4. The child is now 17 years old.
5. The child has an extensive history with the local juvenile court
system, and various treatment alternatives have been attempted,
including detention, suspended detention, formal probationary
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supervision, extensions of that supervision, several efforts at
outpatient therapy, and placement with the Department of
Correction.
6. The child has an alcohol and marijuana dependence, and has not
abstained from use when not in a secured facility.
7. The child does not take his medications as prescribed.
8. The child has virtually no family support. The mother has been
especially resistant to the efforts made to have her participate in
counseling, therapy and the other components of the child’s
treatment plans.
9. Prior to commitment to the Department of Correction in 2010, the
child has been referred to Centerstone for therapy. Consistent with
his prior behavior patterns, he attended counseling only sporadically,
received no support from his mother, and was not successful in that
treatment program. As reflected in the Pre-Dispositional Report,
serious effort was made to keep the child at home and in services.
Ultimately, those efforts failed and the child was committed to the
Department of Correction.
10. Upon release from the Department of Correction, the child returned
to illegal drug and alcohol use.
11. When the child was arrested in July 2011, for underage drinking and
conversion, the Probation Officer requested that prosecution be
delayed until additional services could be put into place for this
child. The Probation Officer made prompt referral to the Roadmaps
to Recovery program, administered at the Wernle Children and
Family Treatment Center. The mother did not follow through with
the minimal duties she had to initiate that treatment program. The
child’s uncle ended up taking the child to the treatment appointment.
12. The child’s counselor at Wernle has also noted that this child
receives virtually no support from the family.
13. While in this most recent treatment program, and even following the
initiation of this delinquency case, the child continues to use
marijuana.
14. The Probation Officer arranged for a “recovery coach” for this child,
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to assist with the transportation and other possible barriers to
treatment.
15. The mother has recently withdrawn the child from public school, and
he is currently receiving no formal educational services.
16. The child has made virtually no progress in his outpatient treatment
at Wernle. He has failed to attend multiple sessions, has been late
for several other sessions, has continued to test positive for
marijuana use, and has submitted at least one drug screen sample that
was diluted.
17. Reasonable efforts have been made in an effort to prevent the need
for removal of the child from the home. Those efforts are set out
above, and include prior detention, probationary supervision,
assignment of a recovery coach, outpatient treatment and therapy and
placement at the Department of Correction.
18. The mother has no reported source of income.
Appellant’s Appendix at 22-23. B.O. appeals his placement with the DOC.
Our standard of reviewing the placement of a child adjudicated as delinquent is well
settled. After a juvenile has been adjudicated delinquent, choosing a specific disposition is a
matter committed to the juvenile court’s discretion, subject only to the statutory
considerations of the welfare of the child, the safety of the community, and the Juvenile
Code’s policy of favoring the least harsh disposition. M.B. v. State, 815 N.E.2d 210 (Ind. Ct.
App. 2004); see also Ind. Code Ann. § 31–34–19–6 (West, Westlaw through end of 2011 1st
Regular Sess.). We will overturn a dispositional order only if the court “‘abused its
discretion because its conclusion and judgment are clearly against the logic and effect of the
facts and circumstances before the court, or the reasonable, probable, and actual deductions
to be drawn therefrom.’” M.B. v. State, 815 N.E.2d at 215 (quoting L.L. v. State, 774 N.E.2d
554, 556 (Ind. Ct. App. 2002), trans. denied).
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We note at the outset that B.O. does not challenge the findings of fact supporting the
juvenile court’s judgment. Where the appellant does not attack the validity of the trial
court’s findings, we accept them as true. See Evansville State Hosp. v. Perry, 549 N.E.2d 44(Ind. Ct. App. 1989); see also A.S. v. State, 923 N.E.2d 486 (Ind. Ct. App. 2010) (a juvenile
delinquency adjudication is civil in nature). Therefore, we accept as true the foregoing
findings of fact.
B.O.’s argument upon appeal is two-fold. First, he contends that courts are required to
impose the least restrictive disposition upon a finding of juvenile delinquency. Second, he
contends wardship in the DOC was not the least restrictive disposition in his case. In a
juvenile delinquency proceeding the goal of disposition is to rehabilitate rather than to
punish. See E.L. v. State, 783 N.E.2d 360 (Ind. Ct. App. 2003). Commitment to the DOC
should be resorted to only if less severe dispositions are inadequate. Id.As the court’s findings reflect, B.O. has an extensive history of juvenile delinquency.
As a result of past encounters with the juvenile justice system, B.O. has been offered the
benefit of various treatment alternatives, including detention, suspended detention, formal
probationary supervision, extensions of that supervision, several efforts at outpatient therapy,
and placement with the DOC. To date, none of those efforts have proven to be successful.
After each effort at rehabilitation and services, he has resumed his delinquent behavior. B.O.
suffers from anxiety and depression, but refuses on his own to take medication prescribed for
those conditions. B.O. has an alcohol and marijuana dependence, and has not demonstrated
the ability to abstain from using those substances when he is not in a secured facility.
Moreover, he has minimal and ineffective family support in dealing with these issues.
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Indeed, his mother has been “especially resistant” to efforts at attempting to obtain her
participation in various treatment plans ordered by the court. Appellant’s Appendix at 23.
B.O.’s behavior in the instant proceeding is revealing. When he was arrested in July
2011 for underage drinking and conversion, his probation officer asked that prosecution be
delayed until additional services could be put into place for him. Those services included a
recovery program administered at the Wernle Children and Family Treatment Center. Yet,
B.O. continued to use marijuana even while in the treatment program. He has reportedly
made virtually no progress in his outpatient treatment. It was reported that he failed to attend
several sessions, was late for several other sessions, continued to test positive for marijuana
use, and submitted at least one drug screen sample that was diluted. In short, B.O. has not
shown an ability to refrain from engaging in illegal activity and to address his substance-
abuse problem unless he is placed in a structured environment, and his family support system
is demonstrably not up to the task of aiding him to make progress in those areas.
Therefore, it appears that this is a circumstance in which anything less severe than
commitment to the DOC would be inadequate, and that commitment to the DOC is in the
best interests of B.O. and of society in general. See M.R. v. State, 605 N.E.2d 204; see also
J.J. v. State, 925 N.E.2d 796, 802 (Ind. Ct. App. 2010) (affirming commitment of juvenile to
DOC where juvenile had been offered numerous means for rehabilitation but “has continued
to reoffend and disrespect the rule of law and his fellow citizens”), trans. denied. The
juvenile court did not abuse its discretion by ordering B.O. committed to the DOC.
Judgment affirmed.
RILEY, J., and MATHIAS, J., concur.
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