In the Matter of F.M. A Child Alleged To Be A Delinquent Child, F.M. v. State of Indiana (mem. dec.) ( 2017 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Aug 16 2017, 9:21 am
court except for the purpose of establishing
the defense of res judicata, collateral CLERK
Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Kimberly A. Jackson Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Caryn N. Szyper
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of F.M. A Child August 16, 2017
Alleged To Be A Delinquent Court of Appeals Case No.
Child, 52A05-1703-JV-615
F.M., Appeal from the Miami Superior
Court
Appellant-Respondent,
The Honorable Daniel C. Banina,
v. Judge
Trial Court Cause No.
State of Indiana, 52D02-1409-JD-42
Appellee-Petitioner.
Bailey, Judge.
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Case Summary
[1] F.M. was adjudicated a delinquent and was subject to multiple placements,
including parental supervision with probation conditions, a group home, a
secure youth center, a lower-security youth center, and parental supervision
with electronic monitoring. After two and one-half years, F.M.’s probation
officer recommended that he be placed in the Indiana Department of
Correction, Juvenile Division (“the DOC”) and the juvenile court modified the
disposition decree and ordered placement in the DOC. F.M. appeals,
presenting the sole issue of whether the court abused its discretion when it
placed F.M. in the DOC. We affirm.
Facts and Procedural History
[2] In a petition filed on August 26, 2014, the State alleged fourteen-year-old F.M.
to be a delinquent child for leaving home without permission. He was placed in
shelter care but released to his mother (“Mother”) two days later. While
Mother was driving home, F.M. jumped out of her vehicle. He was missing for
the weekend. F.M. was placed back in shelter care; he left the building but was
apprehended outside. On September 4, 2014, the State alleged that F.M. was
delinquent for having committed acts that would be Attempted Escape and
Escape, as Level 6 felonies,1 if committed by an adult.
1
Ind. Code § 35-44.1-3-4.
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[3] On October 1, 2014, F.M. admitted that he left home without permission. He
was placed in White’s Residential Home (“White’s”). By agreement between
F.M. and the State, the escape allegations remained pending. F.M. was advised
that, if he behaved well at White’s, the State would dismiss the escape-based
allegations.
[4] F.M.’s behavior at White’s was such that he was terminated from that
placement after approximately six months. At a hearing conducted on March
25, 2015, the State advised the juvenile court that the dismissal agreement had
failed, and F.M. admitted the truth of the Escape allegation. He was placed in
the secure section of the Youth Opportunity Center (“the YOC”). At that
juncture, the juvenile court advised F.M. that he was likely to be placed in Boys
School if he was uncooperative at the YOC.
[5] At a placement review hearing conducted in June of 2015, F.M.’s probation
officer reported that F.M. had participated minimally and struggled with his
behavior in his latest placement. F.M. was again warned that he was “on
track” to Boys School. (Tr. Vol. II pgs. 40-41.) At a placement review hearing
in August of 2015, F.M.’s probation officer reported that there had been
improvement on F.M.’s part. By December of 2015, F.M. showed some
improvement educationally, but his therapist reported a lack of progress and
recommended a different placement. F.M. was subsequently transferred to the
George Junior Group Home (“George Junior”). F.M. was at George Junior for
several months, and he was reportedly generally compliant there. However,
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there were some reported incidences of F.M. punching holes in walls. He also
left the campus without permission on one occasion, and police were called.
[6] During August of 2016, F.M. was returned to the custody of his mother
(“Mother”), subject to probation conditions. By October, Mother advised
F.M.’s probation officer that he was sometimes not returning home.
Reportedly, F.M. was missing for an entire weekend. F.M. had been
suspended from school for eleven days during a nine-week period and the
Salvation Army, where F.M. was to perform community service, reported that
F.M. was non-compliant.
[7] On November 4, 2016, the State filed petitions seeking modification of F.M.’s
dispositional decree. The State alleged that F.M. violated his probation by
failing to obey school rules, failing to complete community service, failing to
obey parental rules, and testing positive for marijuana. At a hearing on
November 30, 2016, the juvenile court again warned F.M. about the prospect of
Boy’s School and instructed him not to leave home without permission. Later
that night, F.M. went to a friend’s house and failed to return home.
[8] On December 1, 2016, F.M. skipped school. On December 4, 2016, he again
failed to return to Mother’s home. On the following day, F.M. failed to report
to a meeting with his probation officer.
[9] On December 6, 2016, the State filed an additional petition seeking
modification of F.M.’s dispositional decree. After fact-finding and dispositional
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hearings, the juvenile court committed F.M. to the DOC for placement at the
Indiana Boys School. This appeal ensued.
Discussion and Decision
[10] 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 court’s 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).
[11] Indiana Code Section 31-37-18-6 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 parent’s 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.
[12] 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.
[13] F.M. argues that his probation violations were relatively minor and did not
justify placement in the DOC. He points out several alleged obstacles to his
successful completion of probation, that is, his learning disability, mental
illnesses, and parental omissions. He requests that we remand the matter and
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order that the juvenile court place him in a less-restrictive environment,
preferably George Junior. He stops short of arguing that this facility has a
current opening or would accept him back.
[14] F.M.’s probation officer testified that F.M. had initially been released to
Mother’s custody; he jumped out of the vehicle and absconded. He was placed
in various facilities, including Kinsey Youth Center, White’s, a secure youth
center in Muncie, and George Junior. While in Mother’s custody, F.M. refused
to do his schoolwork, although the requirements and hours had been modified
due to F.M.’s learning disabilities and mental health diagnoses. According to
Mother, F.M. would feign sickness to avoid school. She testified that she drove
F.M. to the Salvation Army to perform community service. Nonetheless,
Salvation Army employees testified that F.M. was not signing in as expected. It
appeared that he was getting out of Mother’s vehicle, entering the Salvation
Army building, leaving, and then later calling Mother for a ride home. On
numerous occasions, F.M. refused to return home as directed and keep Mother
informed of his whereabouts. Mother testified that she could not control F.M.
[15] The placement 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 (including home detention, electronic
monitoring, supervised probation, secure detention, and non-secure detention)
had not been effective. F.M.’s probation officer opined that placement in the
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DOC was in F.M.’s best interests. In light of this evidence, we cannot say that
the juvenile court abused its discretion.
[16] Affirmed.
Baker, J., and Altice, J., concur.
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