D.V v. v. State of Indiana (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any
Jun 05 2020, 10:28 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 ATTORNEY FOR APPELLEE
Steven Knecht Steven Holser
Vonderheide & Knecht, P.C. Deputy Attorney General
Lafayette, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
D.V.V., June 5, 2020
Appellant-Respondent, Court of Appeals Case No.
19A-JV-2872
v. Appeal from the Tippecanoe
Superior Court
State of Indiana, The Honorable Faith A. Graham,
Appellee-Petitioner. Judge
The Honorable Tricia L.
Thompson, Magistrate
Trial Court Cause No.
79D03-1910-JD-231
Mathias, Judge.
[1] D.V.V., a minor child, admitted to committing acts that, if committed by an
adult, would be Class A misdemeanor intimidation and Class B misdemeanor
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criminal mischief. Based on these admissions, the Tippecanoe Superior Court
found D.V.V. to be a delinquent child and awarded wardship of D.V.V. to the
Department of Correction (“DOC”). D.V.V. appeals and argues that the
juvenile court abused its discretion when it placed him in the custody of the
DOC.
[2] We affirm.
Facts and Procedural History
[3] On October 9, 2019, D.V.V. went to the home of his girlfriend’s mother. While
he was there, his girlfriend’s father, J.M. arrived. The two got into an argument,
and D.V.V. went into the garage, fetched a shovel, and threatened to hit J.M.
with the shovel. After chasing J.M. with the shovel, D.V.V. attacked J.M.’s car
with the shovel, resulting in a cracked windshield, a shattered back window,
and a bent fender.
[4] D.V.V. was arrested and taken into custody that day, and the juvenile court
held a detention hearing the following day. The court noted that D.V.V. had
threatened to harm himself and, at the intake center, had injured himself by
slamming his head into the wall. When taken to the hospital for treatment,
D.V.V.’s blood alcohol concentration was 0.139. D.V.V. had also apparently
attempted to cut his wrist. The court noted that D.V.V. was left unsupervised by
his father for approximately twelve hours per day and ordered him to remain in
custody.
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[5] On October 11, 2019, the State filed a petition alleging that D.V.V. was a
delinquent child for committing acts that, if committed by an adult, would be
Class A misdemeanor battery resulting in bodily injury, Class A misdemeanor
intimidation, and Class B misdemeanor criminal mischief. At the October 15,
2019, initial hearing, D.V.V. admitted to the counts of criminal mischief and
intimidation, and the remaining count was dismissed.
[6] The pre-dispositional report summarized D.V.V.’s lengthy history of
delinquency as follows:
[D.V.V.] was first referred to the Juvenile Justice System in
February of 2010 at the age of 7 for Criminal Recklessness FD in
Allen County. It [was] alleged that [D.V.V.] threatened his
mother with a knife. No action was taken in this matter. A
second arrest was found in Tippecanoe County in November of
2010 when he was arrested for Battery F/D. [D.V.V.] was eight
years old at the time. He was given a warning and was taken to
Valle Vista. [D.V.V.] was arrested a second time in December of
2015 for Possession of Marijuana and Possession of
Paraphernalia. [D.V.V.] was arrested a third time in January of
2016 for Delinquency Alcohol Violation. These two charges were
still open when [D.V.V.] was arrested for a fourth time. [D.V.V.]
was arrested for Delinquency Alcohol Violation, Resisting Law
Enforcement F/6, Disarming a Law Enforcement Officer F/5,
Battery by Bodily Waste F/5, Criminal Mischief M/B,
Intimidation M/A and Battery Against a Public Safety Official
F/6. [D.V.V.] was placed in secure detention on 1/21/2016 and
remained there until 2/19/2016. [D.V.V.] was placed at Wernle
Residential from 2/19/2016 until 8/5/2016. [D.V.V.] was
arrested and placed in secure detention on 9/7/2016. [D.V.V.]
was subsequently placed in the Department of Corrections [sic]
in October of 2016. He was released in July of 2017. [D.V.V.]
was arrested on 2/11/2018 for Battery against a Public Safety
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Official F/6, Resisting Law Enforcement M/A Possession of
Marijuana M/B and Minor Consumption. On 2/20/2018
[D.V.V.] was adjudicated on all charges except the marijuana
charge. On 2/27/18 he was again sen[t] to DOC. [H]e was
released 10/9/18. On 5/13/19 [D.V.V.] was arrested for
Trespass MA. That case was dismissed. On 6/28/19 he was
arrested for Delinquency Alcohol Violation, S [sic] and Illegal
Consumption MC.
Appellant’s App. p. 44.
[7] The juvenile court held a dispositional hearing on November 7, 2019. At this
hearing, D.V.V.’s counsel requested that he be placed at Fairbanks Hospital for
treatment. The juvenile probation officer, however, testified that Fairbanks
Hospital was not an appropriate placement for D.V.V. because it provided only
short-term treatment and detox services, whereas he believed D.V.V. needed
long-term treatment. The probation officer recommended that D.V.V. be placed
with the DOC because no long-term residential programs would accept D.V.V.
The juvenile court agreed with the State that placement at Fairbanks was
inappropriate and placed D.V.V. in the custody of the DOC. D.V.V. now
appeals.
Discussion and Decision
[8] D.V.V. argues that the juvenile court abused its discretion by placing him in the
custody of the DOC. The choice of the specific disposition of a juvenile
adjudicated a delinquent child is a matter within the discretion of the juvenile
court. J.S. v. State, 881 N.E.2d 26, 28 (Ind. Ct. App. 2008). Accordingly, we will
only reverse where the juvenile court has abused that discretion. Id. An abuse of
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discretion occurs when the juvenile court’s action is against the logic and effect
of the facts and circumstances before the court or the reasonable, probable, and
actual inferences that can be drawn therefrom. Id. Thus, the juvenile court is
accorded wide latitude and great flexibility in its dealings with juveniles. Id.However, the juvenile court’s discretion is subject to the following statutory
considerations:
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;
(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.
Ind. Code § 31-37-18-6 (emphasis added).
[9] Accordingly, while the statute requires the juvenile court to select the least
restrictive placement in most circumstances, it also allows for a more restrictive
placement where appropriate. J.S., 881 N.E.2d at 28–29. That is, the statute
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requires placement in the least restrictive setting only where “consistent with
the safety of the community and the best interest of the child.” I.C. § 31-37-18-
6. “Thus, the statute recognizes that in certain situations the best interest of the
child is better served by a more restrictive placement.” J.S., 881 N.E.2d at 29.
[10] D.V.V. argues that the juvenile court abused its discretion by rejecting his
request to live with his mother while receiving treatment at Fairbanks Hospital,
which he claims is the least restrictive, most appropriate setting consistent with
D.V.V.’s best interest and the safety of the community. We disagree.
[11] D.V.V. has a history of delinquent behavior that has often included violence.
He has been placed in less-restrictive placements, including mental health
treatment facilities, which has not altered his delinquent behavior. He has also
been placed with the DOC twice before. Still, he continues to behave in a
delinquent manner. Although D.V.V. was accepted into a treatment program at
Fairbanks, the juvenile court heard evidence that this program was not long-
term and would therefore be inappropriate for D.V.V. He had also previously
left his mother’s home to live with his father because he did not agree with his
mother’s rules. And, for whatever reason, no other residential treatment
facilities were willing to accept him into their programs. Thus, the juvenile
court was faced with either placing D.V.V. into a treatment program at
Fairbanks that was not well suited for him, or placing him with the DOC,
where he could receive longer-term treatment. The juvenile court did not abuse
its considerable discretion in opting for the latter.
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[12] D.V.V. argues that because he received substance abuse treatment during his
prior placements in the DOC, yet continued to use illicit substances, it is
unreasonable to believe that further treatment while in the DOC will benefit
him. But this argument cuts both ways: if treatment in a highly restrictive,
controlled environment such as the DOC has been unsuccessful, then the
juvenile court could have reasonably concluded that treatment in a less-
restrictive, short-term program such as Fairbanks would be unlikely to succeed.
[13] D.V.V.’s citation to E.L. v. State, 783 N.E.2d 360 (Ind. Ct. App. 2003), is
unavailing. In that case, we reversed a juvenile court’s order placing a
delinquent child with the DOC following an adjudication for disorderly
conduct. Id. at 367–68. But the facts in E.L. stand in stark contrast to those
present here. In E.L., even though E.L. had previously been committed to the
DOC, following her release, she had turned her life around: she remained out
of the juvenile justice system for two years, actively participated in school, and
worked with service providers in an effort to improve both her life and the life
of her young child. See id. at 367. Under those facts and circumstances, we held
that placing E.L. in the custody of the DOC was an abuse of discretion because
it was not consistent with the safety of the community or E.L.’s best interests.
Id. at 367–68.
[14] In contrast, here, D.V.V.’s behavior did not improve following his release. He
continued to commit violent delinquent acts even after being committed to the
custody of the DOC. He failed to attend school regularly and disobeyed the
rules set forth by his parents. Nor is there any indication that he was in any way
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working to improve his life. Given D.V.V.’s history of violent behavior, toward
himself and others, the juvenile court was well within its discretion to conclude
that a less-restrictive placement was not consistent with the safety of the
community or D.V.V.’s own interests. See J.S., 881 N.E.2d at 29.
Conclusion
[15] The juvenile court did not abuse its discretion by ordering D.V.V. to be placed
in the custody of the DOC, as a less-restrictive placement was not consistent
with the safety of the community or D.V.V.’s best interests. We therefore affirm
the judgment of the juvenile court.
[16] Affirmed.
Riley, J., and Tavitas, J., concur.
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