B.G. v. State of Indiana (mem. dec.) ( 2020 )

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), this
Oct 02 2020, 8:15 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the CLERK
Indiana Supreme Court
purpose of establishing the defense of res judicata, Court of Appeals
and Tax Court
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Litany A. Pyle Curtis T. Hill, Jr.
Crawfordsville, Indiana Attorney General of Indiana
Myriam Serrano
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
B.G., October 2, 2020
Appellant-Respondent, Court of Appeals Case No.
20A-JV-369
v. Appeal from the Montgomery
Circuit Court
State of Indiana, The Hon. Harry A. Siamas,
Appellee-Petitioner. Judge
Trial Court Cause No.
54C01-1903-JD-89
Bradford, Chief Judge.
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Case Summary
[1] In April of 2019, thirteen-year-old B.G. was found to be a juvenile delinquent
for committing Level 6 felony possession of a narcotic drug and placed on
supervised probation. In June of 2019, the juvenile court revoked B.G.’s
probation because he had stolen several items, smoked spice, possessed
homemade weapons, and threatened his three-year-old cousin with harm. The
juvenile court ordered B.G. to complete a rehabilitative program at Gibault,
Inc. Over the course of the next six-and-one-half months, B.G.’s behavior
worsened as he, inter alia, assaulted Gibault staff members and other residents,
caused a great deal of damage to a classroom, and made little progress in his
education or Gibault’s program. After a review hearing in January of 2020, the
juvenile court ordered B.G. committed to the Indiana Department of
Correction (“DOC”) until the age of twenty-one or until DOC discharged him.
B.G. contends that the juvenile court abused its discretion in ordering him
committed to DOC. Because we disagree, we affirm.
Facts and Procedural History
[2] On March 11, 2019, it was discovered that B.G. had stolen many items from his
mother and stepfather, including a watch, a mobile telephone, money, jewelry,
and a wallet. B.G. was also found to be in possession of hydrocodone tablets.
On March 25, 2019, the State filed a delinquency petition, alleging that B.G.
had committed what would be Class A misdemeanor theft and Level 6 felony
possession of a narcotic drug if committed by an adult. On April 22, 2019,
B.G. admitted that he had been in possession of a narcotic drug, was
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adjudicated a juvenile delinquent, and was placed on supervised probation for
nine months. B.G.’s terms of probation included a substance-abuse evaluation
and treatment, mental-health counseling, community-service hours, “moral
reconation” therapy, and participation in “at least one positive prosocial
activity per day/week[.]” App. Vol. II p. 59.
[3] On May 29, 2019, the State alleged that B.G. had violated the terms of his
probation by stealing a candy bar from his community service location, stealing
money from his parents, possessing and smoking spice, possessing multiple
homemade weapons, and threatening to harm his three-year-old cousin, who
lived in his home. On June 25, 2019, the juvenile court revoked B.G.’s
probation and ordered that he be removed from his parents’ home and placed in
residential care at Gibault. B.G. was ordered to participate in and successfully
complete the program at Gibault.
[4] Gibault’s program typically takes six to nine months to complete, and B.G. was
expected to participate in three phases of the program in order to successfully
complete it. B.G. was provided services and “work[ed] on his emotional
regulation, just his anger, aggression, impulsive behaviors, communication
skills[.]” Tr. Vol. II p. 30. B.G. received individual therapy “at least once a
week” and family therapy once a month. Tr. Vol. II p. 32. Despite the services
he received, B.G. continued to misbehave while at Gibault and failed to make
progress in his services.
[5] When B.G. arrived, “he struggle[ed] with some minor incidents” such as
sneaking out of his dormitory and “peer negativity[.]” Tr. Vol. II p. 24. At a
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January 17, 2020, review hearing, approximately six and one-half months after
B.G.’s placement at Gibault, the juvenile court heard evidence indicating that,
although B.G. had progressed to the second phase of the program, he had been
placed in a “step-back stage” due to lack of progress. Tr. Vol. II p. 30. The
second stage of the program required B.G. to invest in his treatment goals and
apply what he had learned in the program. Instead, B.G. had assaulted a staff
member and his peers and was destructive. B.G. had cause significant damaged
to a classroom by poking the ceiling tiles such that there was “debris
everywhere in the classroom [.]” Tr. Vol. II p. 31. As a result, the other
students had been evacuated from the classroom, and B.G. had continued
destroying the ceiling tiles “until he finally decided he was done[.]” Tr. Vol. II
p. 37. B.G.’s behaviors had included crawling around in the hallways, sneaking
into other classrooms, running out to the parking lot, threatening to run across
the street, and “[g]iving staff a hard time.” Tr. Vol. II p. 36.
[6] Moreover, B.G. performed poorly academically, did not appear to care about
his education, and exhibited the majority of his behavioral issues while in his
classes. B.G. was “very aware of the rules and regulations” and knew “the
limits he [could] push until staff [would] get involved” and would stop just
before staff became involved. Tr. Vol. II pp. 33. When staff asked B.G. why he
was engaging in bad behaviors, he would “shrug[] and often [say] I don’t
know.” Tr. Vol. II p. 33. Due to his poor behavior, B.G. was not allowed any
home passes during his time at Gibault, and his completion of the program was
“taking him longer than most.” Tr. Vol. II p. 31.
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[7] B.G.’s mother had informed the juvenile court that she did not believe that the
program at Gibault was meeting B.G.’s needs. B.G.’s mother opined at the
review hearing that B.G. needed consequences for his actions that he was not
receiving at Gibault because B.G. “knows that they’re a hands-off facility and
[she] believe[d] that [B.G.] pushes it[.]” Tr. Vol. II p. 41. B.G.’s mother
indicated that she wants the best for him and that “Gibault is not the best place
for him for the simple fact that [B.G.] thinks he is in control[.]” Tr. Vol. II p.
41. B.G.’s mother also did not believe she could handle him if he were to be
sent home.
[8] Following the January 17, 2020, hearing, the juvenile court concluded that
Gibault was not the most appropriate placement for B.G.:
We’ve tried probation. We’ve tried leaving you at home. We’ve
tried Gibault’s, which is a very good facility and usually works
for most kids and nothing has worked so far. So, the only thing
left to us at this point is a very structured place where if you
misbehave then the consequences are really serious and if you
misbehave then it ends up meaning time.
Tr. Vol. II pp. 45–46. The juvenile court ordered that B.G. be committed to
DOC until twenty-one years old or until discharged and informed B.G. that he
would be provided with an education, counseling, and “other services that are
aimed at making sure [he] stay[s] out of trouble.” Tr. Vol. II p. 46.
Discussion and Decision
[9] B.G. contends that the juvenile court abused its discretion in ordering him
committed to the DOC. A juvenile court is accorded “wide latitude” and
“great flexibility” in its dealings with juveniles. J.S. v. State, 881 N.E.2d 26, 28
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(Ind. Ct. App. 2008). “[T]he choice of a specific disposition of a juvenile
adjudicated a delinquent child is a matter within the sound discretion of the
juvenile court and will only be reversed if there has been an abuse of that
discretion.” Id. The juvenile court’s discretion in determining a disposition is
subject to the statutory considerations of the welfare of the child, the safety of
the community, and the policy of favoring the least-harsh disposition. Id. An
abuse of discretion occurs when the juvenile court’s action is “clearly
erroneous” and against the logic and effect of the facts and circumstances before
it. Id.[10] The goal of the juvenile process is rehabilitation rather than punishment. R.H.
v. State, 937 N.E.2d 386, 388 (Ind. Ct. App. 2010). “Accordingly, juvenile
courts have a variety of placement options for juveniles with delinquency
problems, none of which are considered sentences.” Id. Indiana Code section
31-37-18-6(1)(A) 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.” “[T]he statute contains language that reveals that a more
restrictive placement might be appropriate under certain circumstances.” J.S.,
881 N.E.2d at 29. The law requires only that the disposition selected be the
least restrictive disposition that is “consistent with the safety of the community
and the best interest of the child.” D.S. v. State, 829 N.E.2d 1081, 1085 (Ind. Ct.
App. 2005).
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[11] Given the evidence heard by the juvenile court, we conclude that its
commitment of B.G. to DOC does not constitute an abuse of discretion. At the
age of thirteen, B.G. was found to be in possession of hydrocodone tablets and
stolen items. Following his adjudication as a juvenile delinquent, B.G. was
placed on probation, and his behavior, if anything, worsened. B.G. violated the
terms of his probation by stealing a candy bar, stealing money from his parents,
smoking spice, possessing several handmade weapons, and threatening to harm
his three-year-old cousin. As a result, the juvenile court ordered B.G. be placed
with Gibault for a three-phase program expected to last from six to nine
months, where he was to receive services including education and therapy,
focusing on his anger, impulsive and aggressive behavior, and communication
skills. Initially, B.G. struggled, sneaking out of his dormitory and exhibiting
peer negativity. Things only got worse from there.
[12] Six and one-half months into the Gibault program, while B.G. had progressed
to the second phase, his worsening behavior had caused him to be placed in a
step-back stage. The second phase required B.G. to invest in his treatment
goals and apply what he had learned, but he chose not to do so. Instead, B.G.
engaged in violent and destructive behavior, assaulting a staff member and
some of his peers and causing significant damage to a ceiling in one of his
classrooms. B.G. would also crawl in the hallways, sneak into classrooms that
here not his, run into the parking lot, threaten to run across the street, and
generally give the staff “a hard time.” Tr. Vol. II p. 36. B.G. was well aware of
Gibault’s rules and regulations and that it was a hands-off facility, causing him
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to push the limits and leading him to believe that he was in control. There is
ample evidence in the record that B.G.’s time at Gibault, if anything, had
resulted in further regression. Having heard this evidence, the juvenile court
noted that neither placing B.G. at home, on probation, nor at Gibault had
worked and concluded that B.G. required structure that he had not yet received
and where he would suffer real consequences for his actions. Under the
circumstances, we cannot say that the juvenile court’s placement of B.G. with
DOC, which would provide that structure and those consequences, amounts to
an abuse of discretion.
[13] B.G. alleges that the juvenile court failed to consider the totality of the
circumstances and properly assess recommendations from credible witnesses.
The record does not support B.G.’s allegation. Four witnesses testified at
B.G.’s review hearing and expressed concerns with B.G.’s behavior in
residential care and his lack of progress in his services. Though B.G.’s case
manager at Gibault stated that B.G. could remain in the program because they
do not give up on children unless they become a liability, she acknowledged
that B.G. was not doing well in the program and was not making progress.
B.G.’s case manager believed that it would take B.G. at least five more months
to complete the program if he bought into the program and was being consistent
with his behaviors, which he had not been doing up to that point. B.G.’s case
manager also acknowledged that Gibault cannot force children to comply with
its program and cannot confine them because it is a treatment-only facility.
Even if we assume that the juvenile court ignored this testimony, the fact is that
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it does nothing to undercut the juvenile court’s disposition. There is no
indication that the juvenile court failed to properly consider the evidence
presented at the review hearing.
[14] B.G. also argues that placement in DOC is punitive. B.G., however, does not
present evidence to support this assertion, and our review of the record has
uncovered none. B.G.’s probation officer informed the juvenile court that DOC
could provide the structure that B.G. needs and also provide him with an
education, counseling, group and individual therapy, and a diagnostic intake
within the first two weeks to determine what his educational, psychiatric, and
mental health needs are and how best to address his issues. The juvenile court
informed B.G. that he would have an intake assessment to determine what
facility would be most appropriate for his needs and he would be provided with
educational services, counseling services, and other “services that are aimed at
making sure [he] stay[s] out of trouble” Tr. Vol. II p. 46. This record
demonstrates that B.G.’s placement in DOC is to provide a placement that
better fits his educational, emotional, and mental health needs rather than to
punish him for bad behavior. In the end, B.G.’s arguments are nothing more
than an invitation to reweigh the evidence, which we will not do. See J.S. v.
State, 110 N.E.3d 1173, 1175 (Ind. Ct. App. 2018), trans. denied.
[15] We affirm the judgment of the juvenile court.
Najam, J., and Mathias, J., concur.
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