Court of Appeals of Indiana | Memorandum Decision 46A03-1604-JV-945 | November 29, 2016 Page 1 of 10

MEMORANDUM DECISION

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

Jennifer L. Koethe

LaPorte, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Caryn N. Szyper

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

In The Matter of J.H.,

A Child Alleged To Be 

Delinquent,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

November 29, 2016

Court of Appeals Case No.

46A03-1604-JV-945

Appeal from the LaPorte Circuit 

Court

The Honorable Thomas Alevizos, 

Judge

The Honorable W. Jonathan 

Forker, Magistrate

Trial Court Cause No.

46C01-1512-JD-213

Bailey, Judge.
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Case Summary

[1] J.H. was adjudicated a delinquent, with the trial court entering true findings for 

(1) Leaving Home Without Permission1 and (2) Theft.2 On appeal, J.H. 

challenges his Leaving Home Without Permission adjudication as well as

aspects of the juvenile court’s disposition. We affirm.

Issues

[2] J.H. raises two restated issues:

I. Whether the evidence is sufficient to support his true 

finding of Leaving Home Without Permission; and

II. Whether the juvenile court abused its discretion when it

placed J.H. in a residential facility.

Facts and Procedural History

[3] On November 23, 2015, sixteen-year-old J.H. was with his mother (“Mother”) 

at a Dollar Tree store in Michigan City, Indiana. Without Mother’s 

permission, J.H. left Dollar Tree and went to the nearby Family Dollar store, 

where Kimberly Walker (“Walker”) was working. Walker saw J.H. pick up 

underwear and walk behind the end of an aisle. When Walker heard a rattle of 

 

1

Ind. Code § 31-37-2-2.

2

I.C. § 35-43-4-2.
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packaging, she approached J.H. and saw him put a scarf and underwear in his 

jacket. J.H. then looked at Walker, said “I was not stealing,” and began to pull 

items from his pockets as he exited. Just outside the store, J.H. dropped gloves 

with tags on them. He ran toward Dollar Tree and got in line with Mother.

[4] Walker went to Dollar Tree to alert staff, who told her to call the police. When 

the police arrived, J.H. had again left without Mother’s permission. Mother 

reported J.H. as a runaway and requested that police bring J.H. to Dollar Tree. 

[5] On December 11, 2015, the State alleged J.H. to be a delinquent for (1) Leaving 

Home Without Permission and (2) Theft, which would be a Class A 

misdemeanor if committed by an adult. The State also included allegations of 

Theft and Intimidation for unrelated incidents. Following a fact-finding 

hearing on March 28, 2016, the juvenile court entered true findings for the 

Leaving Home Without Permission and Theft allegations related to the 

November 23 events. There were no true findings for the other allegations.

[6] Following the fact-finding hearing, the juvenile court asked J.H. and the State 

when they wanted to hold a dispositional hearing. J.H. and the State indicated 

they were ready, and the juvenile court proceeded to disposition. The 

probation department recommended that J.H. be placed at a particular 

residential facility, basing its recommendation on the services J.H. had 

previously received as well as letters from two psychiatrists that recommended 

residential placement. The probation officer present at the hearing noted that 

the particular facility no longer had a bed immediately available for J.H. but 
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one would be available in May 2016, and recommended that J.H. remain on 

the secure side of the detention center until then. The State agreed with the 

recommendation but the defense objected to residential placement. The 

juvenile court followed the probation department’s recommendation in entering 

its dispositional decree.

[7] J.H. now appeals.

Discussion and Decision

Sufficiency of the Evidence

[8] In juvenile delinquency adjudication proceedings, the State must prove every 

element of the offense beyond a reasonable doubt. A.B. v. State, 885 N.E.2d 

1223, 1226 (Ind. 2008). We do not reweigh the evidence or judge the credibility 

of witnesses. Al-Saud v. State, 658 N.E.2d 907, 909 (Ind. 1995). Rather, we 

consider only the evidence and reasonable inferences most favorable to the 

judgment. Id. We affirm if the evidence and those inferences constitute 

substantial evidence of probative value to support the judgment. A.B., 885 

N.E.2d at 1226.

[9] Indiana law provides that a “child commits a delinquent act if, before becoming 

eighteen (18) years of age, the child leaves home or a specific location 

previously designated by the child’s parent, guardian, or custodian: (1) without 

reasonable cause; and (2) without permission of the parent, guardian, or 

custodian, who requests the child’s return.” I.C. § 31-37-2-2.
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[10] J.H. points out that he and Mother never had a specific conversation at Dollar 

Tree about him staying at the store. Thus, J.H. seemingly challenges whether 

the State proved J.H. left a designated location without permission. Here, at 

the fact-finding hearing, Mother testified that J.H. did not have permission to 

leave Dollar Tree. As a general rule, J.H. was to stay with her in the store, and 

he did not have permission to go where he wanted without telling her. J.H. did 

not tell Mother he was leaving. Under these facts, we find J.H.’s challenge to 

the location and permission elements unavailing. 

[11] More pointedly, however, J.H. suggests the evidence is insufficient because 

Mother asked the police to return J.H. to the Dollar Tree but she did not ask 

J.H. to return. J.H. relies on T.W. v. State, 864 N.E.2d 361, 365 (Ind. Ct. App. 

2007), trans. denied. There, in the context of a case involving a request directed 

at a child to return, we used language about making the request to the child. 

The statute, however, does not expressly specify to whom a parent must direct 

her request. See I.C. § 31-37-2-2 (requiring that the “parent, guardian, or 

custodian . . . request the child’s return.”). Nonetheless, when examining the 

statute in T.W., we observed as we do now that the “goal of statutory 

construction is to determine, give effect to, and implement the intent of the 

legislature.” T.W., 864 N.E.2d at 365 (citing Sales v. State, 723 N.E.2d 416, 420 

(Ind. 2000)). We presume the legislature “intended the language used in the 

statute to be applied logically and not to bring about an unjust or absurd result.” 

Id. Here, J.H. invites an illogical reading of the “runaway” statute, in which 
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the statute would never apply where a parent could not contact the child after 

the child ran away. This could not have been the legislature’s intent.

[12] We find that the evidence is sufficient to sustain J.H.’s adjudication.

Residential Placement

[13] 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 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).

[14] Indiana Code Section 31-37-18-6 sets forth a list of factors that the juvenile 

court must consider in entering a dispositional decree, and provides as follows:

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 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.

[15] 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.

[16] J.H. argues that the juvenile court abused its discretion in ordering his 

placement in the particular residential facility because “there was no evidence 

presented that another similar or less restrictive program in La Porte County 

was not available or that [the probation’s department’s proposed residential 
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facility] was the most appropriate facility.” (Appellant’s Br. at 14.) Here, the 

predispositional report indicated that J.H. had two previous true findings, 

multiple diagnoses, and a history of school suspensions. Mother had been 

trying to find residential placement for J.H., but was unable to find a facility 

that would accept him. At the hearing, the probation officer observed that J.H. 

had previously been provided Level 1 home detention, Level 2 home detention, 

supervised probation, administrative probation, GPS monitoring, secure 

detention, and non-secure detention. J.H. had also received outpatient and 

inpatient care as well as counseling, therapy, psychiatric services, and 

medication management. Two psychiatrists wrote letters recommending 

residential placement. Moreover, at the hearing, Mr. Bunch (“Bunch”), a 

licensed therapist who submitted a report, opined that residential placement 

was best for J.H. and noted that J.H. “flourish[es] under [the] structure and 

consistency” of a secure facility. (Tr. 90-91).

[17] 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. Here, the juvenile court heard that a series of 

less-restrictive options had not been effective, and several professionals opined 

that placement was in J.H.’s best interests. We cannot say that the trial court 

abused its discretion when placing J.H. in the residential facility, or by ordering 

that J.H. stay in the detention facility until a bed in the residential facility was 

available.
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[18] J.H. further argues that the juvenile court erred because “no testimony was 

presented from probation and there was no opportunity for J.H.’s counsel to 

cross examine witnesses regarding the pre-dispositional report, probation’s 

recommendation and the reports from J.H.’s psychologists.” (Appellant’s Br. at 

14). The record reflects, however, that during the dispositional phase of the 

hearing—which J.H. elected to immediately begin—the probation department 

did offer its recommendation. J.H. did not cross-examine the probation 

department’s statements, call witnesses, or challenge the content of the 

predispositional report. J.H. did remark that he was not aware of Bunch’s 

report. In response, the juvenile court noted that it had asked about proceeding 

to disposition because it “didn’t know if [J.H.] wanted time to review things 

and come back at another time[,]” and would consider postponing, but J.H. did 

not respond. (Tr. at 91.)

[19] We find that, contrary to J.H.’s characterization, it was not that J.H. was 

deprived of any opportunity but that J.H. did not take advantage of the 

opportunity that was presented to him. Accordingly, J.H. has waived this line 

of argument. See Dillard v. State, 827 N.E.2d 570, 577 (Ind. Ct. App. 2005) 

(finding waiver in the criminal context where a defendant, “having been 

afforded the opportunity to review the [presentence investigation] report[,] . . . 

fail[ed] to register an objection to the information contained therein . . . .”), 

trans denied.
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Conclusion

[20] The evidence is sufficient to support J.H.’s adjudication of Leaving Home 

Without Permission and the trial court did not abuse its discretion in ordering 

that J.H. be placed in a residential facility.

[21] Affirmed.

Najam, J., and May, J., concur.