Pursuant to Ind. Appellate Rule 65(D), this

Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

MARK F. JAMES GREGORY F. ZOELLER

Anderson, Agostino & Keller P.C. Attorney General of Indiana

South Bend, Indiana

MICHAEL GENE WORDEN

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

K.L.W., )

)

Appellant-Respondent, )

)

vs. ) No. 71A05-1211-JV-609

)

STATE OF INDIANA, )

)

Appellee-Petitioner. )

APPEAL FROM THE ST. JOSEPH PROBATE COURT

The Honorable Peter F. Nemeth, Judge

Cause No. 71J01-1207-JD-316

May 24, 2013

MEMORANDUM DECISION - NOT FOR PUBLICATION

CRONE, Judge
2

Case Summary

K.L.W. admitted to committing theft, a class D felony if committed by an adult, by 

stealing tequila from a store in St. Joseph County. The trial court ordered him placed in a 

youth facility in Vincennes. K.L.W. contends that his placement constitutes an abuse of 

discretion. We affirm.

Facts and Procedural History

The relevant facts are undisputed.1 K.L.W. was born March 23, 1996. On March 7, 

2012, he stole tequila from a store in St. Joseph County. On July 3, 2012, the State filed a 

delinquency petition alleging that K.L.W. committed theft, a class D felony if committed by 

an adult. At a hearing on July 25, 2012, K.L.W. admitted the allegation. The trial court 

accepted K.L.W.’s admission and found him to be delinquent. The court also ordered the 

probation officer to prepare a predispositional report and set a dispositional hearing.

At the dispositional hearing on October 30, 2012, the probation officer said that 

K.L.W. had “spent 96 days in secure custody with ten incident reports at the time of today’s 

hearing.” Tr. at 3. She also said,

[K.L.W.] admitted his involvement in the offense and reported remembering 

very little about his actions as he was black-out drunk and high when it was 

committed. He acknowledged a significant history with illegal substance use, 

including multiple prescription pills, marijuana and cocaine, alcohol and 

admitted that he’s used various substances with his father. [K.L.W.]

overdosed last summer that resulted in a hospitalization and admitted to a 

history of self-mutilating behaviors causing great concern for his safety if he 

were to remain within the community.

 

1

 Indiana Appellate Rule 46(A) provides that an appellant’s brief “shall contain” a statement of facts, 

which “shall describe the facts relevant to the issues presented for review but need not repeat what is in the 

statement of the case.” K.L.W.’s brief does not contain a statement of facts, even though the issue presented is 

inherently fact-sensitive. We strongly encourage counsel to comply with this rule in future appeals.
3

[K.L.W.] began attending the eleventh grade at Mishawaka High 

School last year where [he] has 19 credits and [a] history of behavior 

problems. He received one in-school and two out of school suspensions for 

refusing to take out a lip piercing twice and getting caught buying drugs on 

school property. [K.L.W.] was not allowed to return to the regular days 

program at the high school, but allowed to participate in Mishawaka High 

School’s Learning Center Online Program 8:00 a.m. until 11:15 a.m. He 

admitted he often appeared late and drunk to class and never stayed the full 

day when in the program.

Again, diagnostic evaluation was completed by Dr. Sibilla and Dr. 

Sibilla noted that it would appear evident that [K.L.W.] has sought to manage 

the distress by way of running away and living with friends as well as 

becoming dependent on alcohol and [illicit] drugs. His overdose last year was 

nearly fatal and as such, serves as a call to offer him the maximum level of 

chemical dependency treatment available for adolescents. After the probation 

department staffed this case a second time, we are recommending that 

[K.L.W.] be placed at the Southwest Indiana Regional Youth Village. We 

believe he is amenable to treatment and can benefit from the intensive 

substance abuse treatment program that Southwest can offer him. It is 

believed that if he does not address his extensive illegal substance use, his 

angry and defiant attitude and anti-social behaviors, [K.L.W.] will continue to 

abuse substances, commit delinquent acts placing himself in very dangerous 

situations.

Tr. at 3-5. In response, K.L.W.’s counsel noted that the theft was K.L.W.’s first offense and 

asked that he be placed with his grandparents because “[n]obody is going to be able to go 

down [to Vincennes] and visit him” and “[n]obody is going to be there to participate in the 

treatment.” Id. at 6.

Following the hearing, the trial court issued an order that reads in pertinent part as 

follows:

The child has not complied with the compulsory school attendance law and is 

in need of an education.

....
4

The Probation Department has made reasonable efforts to prevent removal: 

[K.L.W.’s mother] discussed consequences within the home she has attempted 

to provide for [K.L.W.] to address his delinquent behavior and illegal 

substance use. She reportedly attempted to seek outpatient therapeutic 

treatment for [K.L.W.] but he refused to attend. In addition, Mishawaka High 

School provided appropriate consequences to address [K.L.W.’s] behavioral 

problems in and out of school suspensions as well as a change in the 

educational setting.

And it is the child’s best interest to remove the child from the home, and that it 

would be contrary to the welfare of the child to remain in the child’s home.

This Dispositional Order is consistent with the safety and the best interest of 

the child and is the least restrictive and most appropriate setting available close 

to the parents’ home, least interferes with the family’s 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.

The Court further finds its Disposition is the least restrictive alternative to 

insure the child’s welfare and rehabilitation and the safety and welfare of the 

community.

....

The Probation Department has recommended, and the Court concludes, that 

said child is an appropriate candidate for placement in a private child caring 

facility, i.e. Southwest Regional Youth Village in Vincennes, IN. The juvenile 

is to participate and successfully complete placement and follow all rules and 

regulations.

Appellant’s App. at 10-11. This appeal ensued.

Discussion and Decision

K.L.W. challenges his placement in the Vincennes youth facility. “The choice of the 

specific disposition of a juvenile adjudicated a delinquent child is a matter within the sound 

discretion of the [trial] court and will be reversed only if there has been an abuse of that 

discretion.” K.A. v. State, 938 N.E.2d 1272, 1274 (Ind. Ct. App. 2010), trans. denied (2011). 
5

“An abuse of discretion occurs when the [trial] court’s action is clearly erroneous and 

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.

“Although the [trial] court is given wide latitude and great flexibility in determining 

the disposition of a delinquent child, its discretion is circumscribed by statute.” D.A. v. State, 

967 N.E.2d 59, 65 (Ind. Ct. App. 2012). The relevant statute 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

(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.

K.L.W. contends that the trial court’s disposition is an abuse of discretion because he 

has no prior delinquency adjudications, was never previously offered probation services, and 

was never adjudicated a truant. He argues that the disposition “is entirely contrary to the 
6

provisions of I.C. 31-37-18-6 and was designed to punish [him] rather than offer 

rehabilitation.” Appellant’s Br. at 4.

We disagree. K.L.W. ignores his admitted history of serious polysubstance abuse, 

including using various substances with his own father. He was hospitalized after a nearfatal overdose and has a history of self-mutilation. K.L.W. also has a history of behavior 

problems in school and often showed up late and drunk to class. His mother attempted to 

seek outpatient therapy for him, but he refused to attend. K.L.W. would run away from home 

and live with friends. And prior to the delinquency hearing, he was in custody for ninety-six 

days and had ten incident reports.

K.L.W. cites no authority for the proposition that a juvenile must have a history of 

adjudicated delinquent activity before he may be placed in a facility away from his family 

and community. K.L.W. is negatively influenced by his father and disobeys his mother, and 

his antisocial behavior has adversely affected the safety of his community. The Vincennes 

facility was specifically recommended by the probation department because K.L.W. could 

benefit from the intensive substance abuse treatment program offered there; such treatment 

clearly would be in his best interest. K.L.W. claims that “the least restrictive and most 

appropriate setting close to his parents’ home was not utilized,” Appellant’s Br. at 3, but he 

offers no suitable alternative. Based on the foregoing, we cannot conclude that K.L.W.’s 

disposition is an abuse of discretion. Therefore, we affirm.

Affirmed.

ROBB, C.J., and FRIEDLANDER, J., concur.