Court of Appeals of Indiana | Memorandum Decision 79A05-1712-JV-2915 | April 30, 2018 Page 1 of 6

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

Cynthia P. Smith

Law Office of Cynthia P. Smith

Lafayette, Indiana

ATTORNEYS FOR APPELLEE

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 Case No.

79A05-1712-JV-2915

Appeal from the Tippecanoe 

Superior Court.

The Honorable Faith A. Graham, 

Judge.

Trial Court Cause No.

79D03-1610-JD-206

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.
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[2] In October 2016, the State filed a petition alleging 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 pornography, a 

Level 6 felony. S.W. had taken nude pictures of his fifteen-year-old thengirlfriend and later shared them with a fellow student.

[3] In December 2016, the juvenile court issued a true finding as to the act of child 

exploitation. The court committed S.W. to 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 polygraph examinations, refrain from 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 probation. 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 polygraph examination and 

passed, but he also made several disclosures. He admitted to the examiner that 

he had continued to consume marijuana and Xanax. S.W. also admitted he 

had exchanged nude photographs with his underage girlfriend. The State 

provided this information to the juvenile court during a modification hearing. 
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The 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 results and statements to his 

case manager in the modification proceeding. By statute, a juvenile’s 

statements to an evaluator may be admitted as evidence against the juvenile in 

proceedings to modify a dispositional decree. Ind. Code § 31-37-8-4.5 (2007).1 

Indiana Code section 31-32-2-2.5 (2007) contains similar language. S.W. 

argues Indiana Code section 31-37-8-4.5 violates his Fifth Amendment privilege 

against self-incrimination.

[7] S.W. concedes he did not present his constitutional claim to the juvenile court. 

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 proceedings to modify a dispositional 

decree without raising issues of self-incrimination. 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 31-9-2-43.8 (2007) defines an “evaluator” for purposes of Indiana Code section 31-37-

8-4.5 as “a person responsible for providing mental health screening, evaluation, or treatment to a child in 

connection with a juvenile proceeding or juvenile probation proceeding.”
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[T]he juvenile’s statement 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 proceedings are civil in nature); trans. denied.

[8] The 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 to 

better serve his rehabilitative needs in compliance with Indiana Code section 

31-37-8-4.5, 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 § 31-37-18-6 

(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 effect 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 79A05-1712-JV-2915 | April 30, 2018 Page 5 of 6

Court enters disposition 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 unsuccessfully 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 emergency shelter care on 

two occasions, home detention with electronic GPS tracking on 

five occasions, home based case management, placement at 

Lutherwood Residential Facility, sexual offender treatment at 

Families United, and placement at the Department of

Corrections, suspended.

Court finds said disposition consistent with the safety of the 

community 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 characterize the decision as “punitive.” Appellant’s Br. p. 

13. We disagree. The record 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 underage girls and began abusing

controlled substances. Commitment to the DOC was a reasonable and 

necessary means to encourage S.W. to reform, and we cannot conclude the 

court abused its discretion.
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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.