In the Matter of the Delinquency of: N.S. v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any
Nov 27 2019, 9:08 am
court except for the purpose of establishing
the defense of res judicata, collateral CLERK
Indiana Supreme Court
estoppel, or the law of the case. Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Katherine N. Worman Curtis T. Hill, Jr.
Evansville, Indiana Attorney General of Indiana
Marjorie Lawyer-Smith
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Delinquency November 27, 2019
of: Court of Appeals Case No.
19A-JV-1173
N.S.,
Appeal from the Vanderburgh
Appellant, Superior Court
v. The Honorable Brett J. Niemeier,
Judge
State of Indiana, The Honorable Renee A.
Ferguson, Magistrate
Appellee.
Trial Court Cause No.
82D04-1904-JD-758
Brown, Judge.
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[1] N.S. appeals the juvenile court’s dispositional order committing him to the
Indiana Department of Correction (the “DOC”). We affirm.
Facts and Procedural History
[2] In April 2019, the State alleged that N.S., who was born in May 2004, was a
delinquent child for having committed criminal trespass as a class A
misdemeanor if committed by an adult. At the initial hearing, N.S. admitted to
the allegation and that he had been in a house and did not have permission to
be there. N.S.’s probation officer filed a preliminary inquiry report which
included the text of a police report stating that, on April 5, 2019, a detective
responded to a report of fresh graffiti 1 and discovered seven individuals,
including N.S., inside what appeared to be an abandoned house, and N.S. was
disrespectful and hesitant to identify himself. The probation officer’s report
indicated that N.S.’s brother was one of the co-respondents and that N.S.’s
juvenile history included delinquent adjudications for criminal mischief, theft,
and criminal trespass for which he was ordered to complete ten hours of
community service and four months of probation and cooperate with home-
based services; an adjudication for escape for running away from his mother’s
house during a home pass from Hillcrest Washington Youth Home; a referral
for theft; a referral for leaving home without permission and false informing;
and an adjudication for escape for which he was detained at the Youth Care
1
The report states that the graffiti consisted of “Lowd” and “Loosers Club.” Appellant’s Appendix Volume
II at 17.
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Center and later transferred to residential placement at White’s Residential and
Family Services (“White’s”) where he completed the program on February 11,
2019. The report further stated that N.S.’s father is incarcerated for child
molesting, where N.S.’s sister was the victim, with an earliest release date of
October 2, 2021.
[3] According to the probation officer’s report, N.S.’s mother indicated that N.S.
leaves home even when she instructs him not to do so, has no respect for
authority figures, has a history of entering abandoned houses, is uncontrollable,
is a ringleader, and is a bad influence on other kids. It stated that N.S. is not
enrolled in school and, after returning home after placement at White’s, refused
to attend the alternative school and demanded traditional or online school. It
indicated that in a prior intake N.S. reported that he was struck by a car when
he was three years old and walks with a limp, that White’s referred him to a
physical therapist, and that his mother reported that he refused to attend those
appointments unless scheduled when he was not busy. The report stated that
N.S. was diagnosed with oppositional defiant disorder, impulse disorder, and
substance abuse and that his actions pose a danger to himself and others.
[4] In May 2019, the court held a dispositional hearing at which N.S.’s counsel
requested placement at the Youth Care Center or White’s. N.S.’s probation
officer stated that N.S. was at White’s for six months and completed all of the
programming, he was home for only a month and a half before committing the
new offense, she had instructed N.S. and his mother how to become involved
with Community Partners if they were having issues, online school through
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White’s was not an option as his mother does not have home internet, and N.S.
refused to attend the alternative school or participate in any other services. She
also indicated that N.S. was familiar with the Youth Care Center, she did not
feel that it was much of a consequence for his actions or that he was learning
anything from his behaviors, he has two prior escapes, and his history
warranted commitment to the DOC.
[5] N.S. testified that he would have attended a physical therapy appointment if his
mother had scheduled it, that he would attend any school starting the next year,
and that he did not think it would benefit him to start at an alternative school
halfway through a semester. The court found that, given his history and the
rehabilitative efforts attempted through various settings, it was in N.S.’s best
interest to be placed at the DOC.
[6] The court issued a dispositional order finding the facts in the pre-dispositional
report were true and accurate, incorporating the report into its findings, and
finding that N.S. is beyond the control of the parent, there does not exist any
viable options for his care and treatment in or outside of the community, and it
is in the best interests of N.S. and the community that he receive DOC services
because he had previously received less restrictive alternatives. The order
provided that N.S. has already had the following opportunities or services: two
placements at Hillcrest Washington Youth Home from which he absconded
both times; placement at White’s; secure detention; probation services;
Department of Child Services; and in-home therapy and mentor services. The
court awarded wardship to the DOC for housing in a facility for children.
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Discussion
[7] N.S. asserts that the juvenile court erred in committing him to the DOC rather
than a less restrictive alternative. He argues the court failed to consider the
circumstances in his life and that none of his prior adjudications were for
violent offenses. The State argues the court did not abuse its discretion and
N.S. has exhibited a significant lack of understanding regarding the seriousness
of his conduct, was not compliant with services, and showed no respect for
authority or interest in cooperating with services.
[8] 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 “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
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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).
[9] The juvenile court heard testimony from N.S., his mother, and his probation
officer, heard evidence regarding his behavior and placement history,
considered the parties’ arguments, and incorporated the probation officer’s
report. Based upon the record, and in light of the court’s findings and N.S.’s
delinquent behavior and failure to adequately respond to prior attempts at
rehabilitation, we conclude that the court’s ordered placement is consistent with
his best interest 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).
[10] For the foregoing reasons, we affirm the juvenile court.
[11] Affirmed.
Altice, J., and Tavitas, J., concur.
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