Court of Appeals of Indiana | Memorandum Decision 32A01

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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 Jeffer y A. Earl Danville, Indiana A TTORNEY S FOR A PPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Michael Gene Worden Deputy Attorney General Indianapolis, Indiana



### I N T H E 

# COURT OF APPEALS OF INDIANA

B.W. , Appellant

- Responde nt,
v. 

### State of Indiana , Appellee

- P etitioner

. October 12, 2017 Court of Appeals Ca se No. 32A01

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- 924 Appeal from the Hendricks Superior Court

. The Honorable Karen M. Love, Judge

. Trial Court Cause No. 32D03

- 1606

- JD

- 163



### Friedlander , Senior Judge

[1] B.W. appeals the juvenile court’s dispositional order . We affirm.

[2] B.W. presents one issue for ou r review, which we restate as whether the juvenile court abused its discretion by awarding wardship of B.W. to the D epartment of C orrection (DOC)

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[3] On June 20, 2016, the State filed a delinquency petition alleging that B.W. had committed the offenses of conspiracy to commit robbery, a Level 5 felony if

com mitted by an adult, 1 and possession of paraphernalia, a Class A misdemeanor if committed by an adult. 2 At the fact

- finding hearing, B.W. admitted to the allegations , and the juvenile court entered a true finding. The court awarded wardship of B.W. to the DOC but suspended that commitment and placed B.W. on supervised probation for twenty

- four months . Specific conditions of B.W.’s probation included a 6:30 p.m. curfew, substance abuse evaluation and treatment, abst inence from intoxicating or illegal substances, school attendance and appropriate behavior, no contact with his co

- conspirators Z.M. or M.T., at least part

- time employment, a letter of apology to the victim , t ruthful testimony against Z.M. and M.T., and participation in home

- based counseling

.
[4] On October 27, 2016, the State filed a petition to modify B.W.’s supervised probation due to allegations of a positive drug screen for marijuana and suspen sion from school due to unexcused absence s . This petition was soon followed by the filing of a sup plemental petition to modify based upon B.W.’s pending expulsion from school

. At a hearing on the se matter s , B.W. a dmi tted

1 Ind. Code § § 35

- 42

- 5

- 1 (2014 ) , 35

- 41

- 5

- 2 (2014). 2 Ind. Code § 35

- 48

- 4

- 8.3 (2015 ).Court of Appeals of Indiana | Memorandum Decision 32A01

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to violating his probation , and t he juvenile court modified the terms of his probation to add participation in mentoring services an d family therapy.

[5] The State filed a nother petition to modify B.W.’s probation on February 16, 2017, alleging that B.W. had again violated the terms of his probation, specifically the 6:30 p.m. curfew and the no contact with Z.M

. The juvenile court held a heari ng on the State’s petition , a fter which it entered a true finding and imposed the previously

- suspended commitment to the D OC

. B.W. now appeals.

[6] As B.W. concedes, the evidence in this case is undisputed that he violated the curfew term of his probatio n. See Appellant’s Br. p. 9. He claims, however, that his commitment to the DOC is improper because it is not the least restrictive alternative available.

[7] The choice of the specific disposition of a juvenile adjudicated to be delinquent is a matter wit hin t he sound discretion of the juvenile court. J.S . v. State , 88 1 N.E.2d 26 (Ind. Ct. App. 200 8 ). Th is discretion is subject to the statutory considerations of the welfare of the child, the safety of the community, and the policy of favoring the least h arsh disposition. Id

. We will reverse a juvenile disposition only for an abuse of discretion, which occurs when the juvenile court’s action is clearly erroneous and against the logic and effect of the facts and circumstanc es before the court, or the reas onable , probable, and actual inferences drawn therefrom. Id

. Accordingly , the juvenile court is accorded wide latitude and great flexibility in its dealings with juveniles. Id.Court of Appeals of Indiana | Memorandum Decision 32A01

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[8] Indiana Code section 31

- 37

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- 6 (1997 ) sets forth the following factors a juvenile court must co nsider when entering a dispositional decree: 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. Although this section req uires the juvenile court to select the least restrictive placeme nt, that requirement is limited by the safety of the community and the best interest of the child. D.B. v. State , 842 N.E.2d 399 (Ind. Ct. App. 2006). Thus, the statute recognizes that, in c ertain situations, the best interest of the child is better served by a more restrictive placement. Id.

[9] B.W.’s father testified at the fact

- finding hearing that on February 4, 2017, the police came to his home and woke him at approximately 1:00 a.m. At t hat time, they informed him that they had heard B.W. was at a party and that Z.M. was also at the party

. B.W.’s father did not know if B.W. was at home because he had gone to bed much earlier in the evening when B.W. and his brothersCourt of Appeals of Indiana | Memorandum Decision 32A01

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were all at home. He further testified that he and B.W. argue a lot and that B.W. knows what he is suppo sed to do for his probation and “there’s not much [ B.W.’s father ] can do.” Tr. p. 26.

[10] While acknowledging B.W.’s effort to obtain employment, his care coordinator testified that each of B.W.’s weekly drug screens had been positive for marijuana and that his substance abuse therapist closed his file as unsuccessful after he failed to attend three appointments. She further testified that B.W. had

an appointment for a court

- or dered psychological evaluation but had canceled the appointment. In summarizing her observations of B.W., she testified, “The only thing he really cares about right now is working. He doesn’t seem too motivated to go to school, to participate in services.” Id. at 41.

[11] In addition , B.W.’s probation officer testified that B.W.’s cooperation has been “hit and miss.” Id. at 43. She testified that B.W. sleeps through appointments and that he does not cooperate with his providers , o ther than his mentor. She also mentioned his positive drug screens, his withdrawal from school, and his withdrawal from or being “kicked out” of his last GED program. Id. Finally, she testifi ed that B.W.’s probation “has not been successful up to this p oint.” Id.

[12] In his testimony, B.W. admitted that he was out past his curfew on February 4, 2017, at the home of his friend, Cory. He testified that he left Cory’s and went over to the party because he was told his brother was there. He claims he knocked on the door of the loud party, asked for his brother, told his brother toCourt of Appeals of Indiana | Memorandum Decision 32A01

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go home, and went back to Cory’s

— all without attending the party or seeing Z.M. B.W. further admitted that he had failed drug tests, slept through scheduled appointments, failed t o have a psychological evaluation, and not begun GED classes or treatment for his substance abuse issues. Moreo ver, he continued to be equivocal about his marijuana use even as he was testifying at the fact

- finding hearing. When told he was going to be drug tested after the hearing and asked if it would be a “clean” test, B.W.’s response was that it “should be.” Id. at 54. The State further asked if he had smoked marijuana within the last thirt y days, and B.W. responded, “I’d say no. I really

— I haven’t smoked and I can pass a

– I can pass a drug screen. I’m pretty sure of it.” Id. at 55.

[13] In stating its decision, t he juvenile court observed that although B.W.’s employment is a positive thing , his education is far more important. The court declar ed it was “ very unfortunate ” that B.W. canceled his psychological evaluation appointment, dropped out of school, and con tinued to use marijuana. Id. at 47. The court further explained that by being sent to the DOC, B.W. would be able to obtain his GED, receive a psychological evaluation, and receive needed substance abuse treatment. Accordingly, i n its disposition al order, the court strongly recommended to the DOC that B.W. be placed in Camp Summit “so that he can get his GED and get some t raining.” Id. at 61. In its order, the court additionally determined that B.W.’s father cannot or will not provide B.W. with the supervision he needs.Court of Appeals of Indiana | Memorandum Decision 32A01

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[14] By its terms, Indiana Code section 31

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- 6 recognizes that while less restrictive placement options may be available, in certain situations a less restrictive placement is not consistent with the best interest of the child

. This is such a situation. Within the first seven months of his twenty

- fo ur - month probation term, B.W. had accumulated three petitions to modify. Upon true findings for the first two petitions, the juvenile court employed less restrictive dispositions and merely continued B.W.’s probation with the addition of mentoring service s and family therapy. Yet none of these less restrictive dispositions were successful at rehabilita ting B.W. H is continuing actions du ring his short term of probation proved that he is unabl e or unwilling to abide by less restrictive dispositions. As th e court remarked , a commitment to th e DOC will significantly increase the chances that B.W. secures his GED and training for future employment as well as treatment to address his substance abuse issues

. Th us, th e court’s decision to commit B.W. to the DOC fulfills the juvenile system’s dual purpose of rehabilitation and behavioral re

- direction

. See S.C. v. State , 779 N.E.2d 937 (Ind. Ct. App. 2002) (stating that nature of juvenile process is rehabilitation and aid to juvenile to direct his behavior so he wi ll not later become a criminal), trans. denied

.
[15] For the foregoing reasons, we conclude the juvenile court did not abuse its discretion in committing B.W. to the DOC

.
[16] Judgment affirmed.
May , J., and Crone , J., concur

.