Court of Appeals of Indiana | Memorandum Decision 79A05

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### 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.
A TTORNEY FOR A PPELLANT Cynthia P. Smith Law Office of Cynthia P. Smith Lafayette, Indiana A TTORNEY S FOR A PPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Ian McLean Deputy Attorney General Indianapolis, Indiana


### I N T H E 

# COURT OF APPEALS OF INDIANA

S.W. , Appellant

- Respondent

, v. 

### State of Indiana , Appellee

- Petitioner

. April 30, 2018 Court of Appeals Ca se No. 79A05

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- 2915 Appeal from the Tippecanoe Superior Court

. The Honorable Faith A. Graham, Judge. Trial Court Cause No. 79D03

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- JD

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### Shepard , Senior Judge

[1] S.W. appeals the juvenile court’s modification of a dispositional order , in which the court terminated his probation and sent him to the Indiana Department of Correction. We affirm.Court of Appeals of Indiana | Memorandum Decision 79A05

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[2] In October 2016, t he State filed a petition a lleging sixteen

- year - old S.W. to be a delinquent child for acts that, if committed by an adult, would have amounted to child exploitation, a Level 5 felony, and possession of child po rnography, a Level 6 felony. S.W. had taken nude pictures of his fiftee n - year - old then

girlfriend and later sh ared them with a fellow student

.
[3] In December 2016, t he juvenile court issued a true finding as to the act of child exploitation. The court commi tted S.W. t o the Department of Correction but suspended the commitment and placed him on supervised probation

. Among other terms , S.W. was required to complete a sexually maladaptive behavior treatment program , submit to poly graph examinations, refrain fr om possessing or consuming illegal substances, and refrain from possessing pornography.

[4] On August 21, 2017, S.W. submitted to a polygraph examination and failed. He admitted at the end of the examination that he had consumed marijuana and Xanax while on p robation. On August 28, 2017, the State filed a motion to modify the court’s dispositional decree, requesting a hearing. During a subsequent hearing, S.W. admitted to violating the terms of his probation.

[5] In November 2017, S.W. submitted to another polyg raph examination and passed, but he also made several disclosures. He admitted to the examiner that he had contin ued to consume marijuana and Xanax. S.W. also admitte d he had exchanged nude photographs with his underage girlfriend. The State provided this information to the juvenile court during a modification hearing.Court of Appeals of Indiana | Memorandum Decision 79A05

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T he court modified its dispositional decree by granting wardship of S.W. to the DOC . This appeal followed.

[6] S.W. first challenges the use of his polygraph test result s and statements to his case manager in the modification proceeding. By statute, a juvenile’s statement s to an evaluator may be admitted as evidence against the juvenile in proceedings to modify a dispositional decree . Ind. Code § 31

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- 4.5 (2007). 1 I ndiana Code section 31

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- 2.5 (2007) contains similar language. S.W. argues Indiana Code section 31

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- 4.5 violates his Fifth Amendment privile ge against self

- incrimination.

[7] S.W. concedes he did not present his constitutional claim to the juvenile cou rt. Setting aside issues of waiver and fundamental error, we conclude the admission of S.W.’s statements did not violate his Fifth Amendment rights. In State v. I.T. , 4 N.E.3d 1139 (Ind. 2014), the Indiana Supreme Court held a juvenile’s incriminating statements to a therapist could not be used against him or her in a new delinquency petition . On the other hand , a juvenile’s statements to an evaluator may be used in proceeding s to modify a dispositional decree without raising issues of self

- incriminati on. The Court reasoned,

“ modifying disposition merely adjusts the rehabilitative services ordered in connection with a delinquency determination that has already been made.

. . .

1 Indiana Code section 31

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- 43.8 (2007) defines an “evaluator” for purposes of Indiana Code section 31

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- 4.5 as “ a person responsible for providing mental health screening, evaluation, or treatment to a child in connection with a juvenile proceedin g or juvenile probation proceed ing.”Court of Appeals of Indiana | Memorandum Decision 79A05

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[T]he juvenile’ s stateme nt is used only to better tailor services to their particular needs, and thus to promote their rehabilitation. ” Id. at 1146

- 47. See also Bussberg v. State ; 827 N.E.2d 37 (Ind. Ct. App. 2005) (use of defendant’s statements during probation revocation hearing did not violate Fifth Amendment; probation proc eedings are civil in nature); trans. denied

.
[8] T he State did not seek to file a new delinquency petition against S.W. for his admissions of wrongdoing. Instead, the State simply asked the court to modify the dispositional order. S.W.’s statements were used to tailor a placement t o better serve his rehabilitative needs in compliance with Indiana Code section 31

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- 4.5 , not to place him in further criminal jeopardy. We cannot conclude the juvenile court violated his Fifth Amendment rights.

[9] Next, S.W. claims the juvenile court erred in granting wardship to the DOC rather than keeping him on probation. A juvenile court must place a delinquent child in the “least restrictive” setting possible “[i]f consistent with the safety of the community and the best interest of the child

. ” Ind. Code § 31

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- 6 (1997)

. Subject to statutory requirements , we review the juvenile court’s disposition for an abuse of discretion. K.S. v. State , 849 N.E.2d 538 (Ind. 2006). An abuse of discretion occurs when the court’s action is clearly erroneous and against the logic and effe ct of the facts and circumstances or the reasonable, probable, and actual deductions to be drawn therefrom. D.B. v. State , 842 N.E.2d 399 (Ind. Ct. App. 2006).

[10] The juvenile court imposed a more restrictive disposition in this case, stating :Court of Appeals of Indiana | Memorandum Decision 79A05

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Court enters d isposition as stated herein for the following reason(s): [S.W.] has been offered extensive services through the Juvenile Justice System. He has had placement in the Department of Corrections [sic] suspended on two occasions. [S.W.] was recently unsuccess fully discharged from community based sexual offender program through Families United. Court finds the following services have been offered : supervised probation, random drug screens, placement in secure detention, placement on house arrest with intensive supervision, aggression replacement training (ART), community service, random drug screens, substance use disorder assessment, individual counseling, placement in eme rgency shelter care on two occasions, ho m e detent ion with electronic GPS tracking on five occasions, home based case management, placement at Lutherwood Resid ential Facility, sexual off ender treat m e nt at Families United, and placeme nt at the Department of Corrections, suspended. Cour t finds said disposition consistent with the safety of the co mm un ity and the best interests of the child. Appellant’s App. Vol 3, p. 107.

[11] S.W. does not challenge the accuracy of the juvenile court’s statement, choosing instead to chara cterize the decision as “punitive.” Appellant’s Br. p. 13. We disagree. The rec ord amply supports the court’s determination that less restrictive alternatives have not caused S.W. to change his behavior. To the contrary, he continued to take photographs of u nderage girls and began abusing controlled substances. Commitment to the DO C was a reasonable and necessary means to encourage S.W. to reform , and we cannot conclude the court abused its discretion.Court of Appeals of Indiana | Memorandum Decision 79A05

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[12] For the reasons stated above, we affirm the judgment of the trial court.

[13] Affirmed. Kirsch, J., and Bailey, J., concur.