N.L. v. State of Indiana (mem. dec.)

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Jul 26 2018, 6:04 am this Memorandum Decision shall not be regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court

the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Renee M. Ortega Curtis T. Hill, Jr. Crown Point, Indiana Attorney General of Indiana Tyler G. Banks Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

N.L., July 26, 2018 Appellant-Respondent, Court of Appeals Case No. 45A05-1712-JV-2879 v. Appeal from the Lake Superior Court State of Indiana, The Honorable Thomas P. Appellee-Petitioner. Stefaniak, Jr., Judge The Honorable Robert G. Vann, Magistrate Trial Court Cause No. 45D06-1502-JD-137

Riley, Judge. Court of Appeals of Indiana | Memorandum Decision 45A05-1712-JV-2879 | July 26, 2018 Page 1 of 13

STATEMENT OF THE CASE [1] Appellant-Respondent, N.L., appeals the juvenile court’s order, modifying his

probation and ordering him to be a ward of the Department of Correction

(DOC). [2] We affirm.

ISSUES [3] N.L. raises two issues, which we restate as:

(1) Whether the juvenile court’s dispositional order complied with the

statutory requirements; and

(2) Whether the juvenile court abused its discretion when modifying N.L.’s

placement from probation to wardship at the DOC.

FACTS AND PROCEDURAL HISTORY [4] On April 25, 2015, at age fourteen, N.L. incurred his first delinquency referral

after he was charged with battery resulting in bodily injury, a Class A

misdemeanor if committed by an adult. While at school, N.L. had grabbed

another student by the neck and choked him to the point the student lost

consciousness and fell to the ground, hitting his head on the classroom floor.

N.L. entered into an agreement with the State, in which he admitted to the

battery and was placed on Intensive Probation Level 2. On July 16, 2015, after

making improvements in his behavior, N.L.’s probation was modified and

lowered to Intensive Probation Level 1.

Court of Appeals of Indiana | Memorandum Decision 45A05-1712-JV-2879 | July 26, 2018 Page 2 of 13 [5] Almost immediately after modifying his probation, N.L. began to accumulate

unreported absences at school. Despite beginning to “revert[] back to some of

his previous behaviors in the home setting,” N.L. remained “in compliance

with services[.]” (Appellant’s App. Vol. II, p. 89). After October 2015, N.L.

began attending day treatment rather than regular high school. However,

“shortly after his enrollment [the day treatment facility] discharged [N.L.]

alleging he was threatening students and incited overall several fights in one

day.” (Appellant’s App. Vol. II, p. 100). Attempts to place N.L. at another day

treatment facility failed “due to [an] alleged gang affiliation.” (Appellant’s

App. Vol. II, p. 100). Eventually, N.L. participated in services through Choices

and enrolled in another day treatment program. On February 17, 2016, N.L.

was again discharged from the day treatment program because he had engaged

in a fight with another student. Despite being ordered by probation to attend

yet another day treatment facility, N.L. refused to do so. As of April 1, 2016,

“[t]hree out of four programs [N.L.] has attended have reported physical

aggression.” (Appellant’s App. Vol. II, p. 144). [6] When not in school, N.L. “appears to be enthused with gang activities[,]” and

his “gang involvement has placed himself and [his] family in grave danger.”

(Appellant’s App. Vol. II, pp. 134, 135). In fact, N.L.’s “enthusiasm and

participation with gang related activities through Facebook has prompt[ed] his

current residency to be targeted by gang members.” (Appellant’s App. Vol. II,

pp. 134-35). When asked about gang membership, N.L. admitted to being

affiliated with the Vice Lords gang.

Court of Appeals of Indiana | Memorandum Decision 45A05-1712-JV-2879 | July 26, 2018 Page 3 of 13 [7] On April 7, 2016, the juvenile court conducted a hearing on the State’s petition

to modify N.L.’s probation after violating his terms of probation by being

expelled from the day treatment program for fighting. N.L. admitted to the

violation and was ordered to remain detained in the county’s detention facility

pending disposition. Despite probation’s search to secure a placement for N.L.,

only one residential treatment facility was willing to accept him but could not

for a period of multiple months. At the end of May 2016, the juvenile court

released N.L. from detention to live with his mother and placed him back on

Intensive Probation Level 2. [8] Within a month, the Indiana Department of Child Services (DCS) was called to

N.L.’s mother’s house. Upon their arrival, N.L.’s mother advised them that her

boyfriend had broken up a fight between N.L. and a girl. Afterwards, N.L.

threatened mother’s boyfriend, yelling “I’ll kill you where the fuck you stand”

and that when the boyfriend was asleep, N.L. would “slit his fucking throat.”

(Appellant’s App. Vol. II, p. 181). Shortly after this incident, N.L. absconded

from mother’s residence. A verified petition to detain N.L. was granted but he

was not detained until nearly a month later. During his intake, N.L. reported

that he had first gone to Texas for less than a week and then spent some time in

Indianapolis before returning to northwest Indiana. [9] On July 21, 2016, the State filed another petition for modification for violating

his conditions of probation by absconding. N.L. admitted to the allegation, and

on August 4, 2016, the juvenile court ordered N.L. committed to the DOC for

six months. In a report to the juvenile court upon N.L.’s release, the probation

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officer reported that N.L. had accumulated “12 major disciplinary conduct

reports while at the DOC.” (Appellant’s App. Vol. III, p. 23). The day after he

was released, N.L. informed his probation officer that he had “gotten ‘dummy

high’” and that he was “still high” the following morning. (Appellant’s App.

Vol. III, p. 26). In the month between his release and his July 2017 hearing,

N.L. again fled the state for 10 days while telling his mother and probation

officer that he had secured employment for which he needed to live with his

father. Also, N.L. posted photographs of himself holding firearms on social

media. During this time, “it appear[ed] that [N.L.’s] behaviors [] escalated

since his release from the” DOC. (Appellant’s App. Vol. III, p. 26). [10] On July 25, 2017, finding that N.L. was a danger to himself and the

community, the juvenile court placed N.L. back on Intensive Probation Level

2, mandated him to wear a location monitor, and ordered him detained at

Alternative House. On August 8, 2017, N.L. was released from Alternative

House and resumed living with his mother. Although his behavior improved

for several weeks, N.L. again began posting photos of himself brandishing

firearms on social media. He sent a selfie holding a firearm to another juvenile,

threatening “Biitch iima smoke yo ass just like liil John.” (Appellant’s App.

Vol. III, p. 78) (spelling and capitalization unaltered). [11] By the end of September 2017, N.L.’s therapist observed

The adolescent is not only dangerous[,] he is deeply and profoundly mentally ill. By his own admission he has committed or was directly involved in the murder of two people in the past

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and exhibits no reservations with regards to harming not only the youth cited above but even members of his own family. . . It is to be remembered there is still a $4000.00 street bounty on [N.L.’s] head because he robbed a known drug dealer in Hammond, IN. several months ago . . . [N.L.] constitutes a viable danger to others and to himself and should be removed from the home in order to preclude any further unnecessary bloodshed, this must be initiated as expeditiously as is possible for the safety of [N.L.’s] family and the public at large.

(Appellant’s App. Vol. III, p. 72). On September 20, 2017, the State petitioned

the juvenile court to modify N.L.’s probation, and the juvenile court ordered

N.L. detained pending the hearing. [12] In anticipation of the modification hearing set for October 26, 2017, N.L.’s

probation officer submitted a detailed hearing report, describing the progress of

the case. The report included a narrative of the progression of N.L.’s behavior

while on probation, but also entailed diagnoses resulting from a psychological

evaluation, the diagnostic criteria associated with the diagnoses, and noted that

N.L.’s parents “ha[d] complied with the Order of Participation.” (Appellant’s

App. Vol. II, p. 32). [13] At the modification hearing, N.L.’s mother, primary therapist, case manager,

and probation officer were present. During the proceeding, N.L.’s mother

advised the juvenile court that her son “needs mental help.” (Transcript p. 9).

She informed the juvenile court that she will not allow N.L. to return home as

he is putting the “other kids in jeopardy.” (Tr. p. 10). N.L.’s therapist

recommended placement at the DOC, where the psychiatric services and the

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educational caveat [sic] could be easily met.” (Tr. p. 10). N.L.’s probation

officer noted that no residential placement would accept N.L. and that because

of his violent provocation of gang members on social media, “if he has to go to

the DOC to keep him safe and keep him from getting killed on the streets, then

that’s the recommendation that I will make.” (Tr. p. 16). At the conclusion of

the hearing, the juvenile court took its disposition under advisement to allow

probation to investigate one other possible placement. On November 9, 2017,

the juvenile court issued its dispositional order, ordering N.L. to be a ward of

the DOC. [14] N.L. now appeals. Additional facts will be provided if necessary.

DISCUSSION AND DECISION I. Standard of Review

[15] When a person under the age of eighteen commits an act that would be a crime

if committed by an adult, the person is adjudicated a ‘delinquent child’ and the

juvenile court issues a dispositional decree providing for placement, sanctions,

and treatment of the child. R.J.G. v. State, 902 N.E.2d 804, 806 (Ind. 2009).

Dispositional decrees are intended to promote rehabilitation, consistent with

the expressed legislative intent to “ensure that children within the juvenile

system are treated as persons in need of care, protection, treatment, and

rehabilitation.” Ind. Code § 31-10-2-1(5). Thus, the juvenile court is given a

myriad of alternatives and is accorded great latitude and flexibility to allow the

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disposition that “best fits the unique and varying circumstances of each child’s

problems.” A.A.Q. v. State, 958 N.E.2d 808, 813-14 (Ind. Ct. App. 2011). [16] The choice of the specific disposition of a juvenile adjudicated a delinquent

child is a matter within the sound discretion of the juvenile court, subject to

certain statutory considerations. D.A. v. State, 967 N.E.2d 59, 64 (Ind. Ct. App.

2012). Indiana Code section 31-37-18-6 provides that the juvenile court shall

choose a disposition that is “in the least restrictive . . . and most appropriate

setting available,” consistent with the safety of the community and the best

interest of the child. We will reverse only if there has been 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 circumstances before the court

or the reasonable, probable, and actual inferences that can be drawn therefrom.

D.A., 967 N.E.2d at 64.

II. Dispositional Order

[17] N.L. contends that the juvenile court’s order did not conform with the statutory

requirements contained in Indiana Code section 31-37-18-9(a). Complaining

that the court’s order is “rote and merely statutory in form,” N.L. asserts that

the disposition is insufficient, fails to contain tailored written findings and

conclusions, and omits the reasons for the disposition. (Appellant’s Br. p. 8). [18] When ordering an order modifying a juvenile disposition, the court must

comply with the requirements governing dispositional orders. See Ind. Code §

31-37-22-3(c). Indiana Code section 31-37-38-9(a) requires a dispositional

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decree to include “written findings and conclusions,” as well as “specific

findings” as to

(1) The needs of the child for care, treatment, rehabilitation, or placement. (2) The need for participation by the parent, guardian, or custodian in the plan of care for the child. (3) Efforts made, if the child is removed from the child’s parent, guardian, or custodian, to: (A) Prevent the child’s removal from; or (B) Reunite the child with; The child’s parent, guardian, or custodian. (4) Family services that were offered and provided to: (A) The child; or (B) The child’s parent, guardian, or custodian. (5) The court’s reasons for the disposition. (6) Whether the child is a dual status child under [I.C. §] 31-41.

The statute allows the juvenile court to “incorporate a finding or conclusion

from a dispositional report as a written finding or conclusion upon the record in

the court’s dispositional decree. I.C. § 31-37-18-9(c). [19] At the outset, the juvenile court’s order noted that “[t]he statements in the

Probation Officer’s Report and all attachments are adopted as findings,

including any and all statements of reasonable efforts to provide services, and

are incorporated by reference herein.” (Appellant’s App. Vol. II, p. 27).

Subsequently, the order addressed all the requirements imposed by statute. It

spoke to N.L.’s best interest in being removed from the home because

remaining there "would be contrary to the welfare of the child” and “because

the home environment is unable to meet” N.L.’s “basic needs.” (Appellant’s

App. Vol. II, p. 27). It noted that the parents had complied with the Order of

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Participation. The order further found that “[e]fforts made to provide family

services did not prevent removal of the child(ren) because the family services

were refused or ineffective[,]” and the probation officer’s report contained

extensive documentation of the unsuccessful placements and treatments

provided to N.L. (Appellant’s App. Vol. II, p. 27). The probation officer’s

report explained the justification for the DOC disposition referring to N.L.’s

escalating behavior, his past violent threats, his absconding from his mother’s

home, and his history of expulsion from academic and treatment programs.

While the order fails to include a specific finding as to N.L.’s dual status, the

record evidences that a dual status team was convened in July of 2017,

recommending that the juvenile court should solely proceed with delinquency

proceedings. [20] N.L. points to K.A. v. State, 775 N.E.2d 382 (Ind. Ct. App. 2002), trans. denied,

in support of his argument that the probation officer’s report cannot be used to

constitute specific findings. However, as pointed out by the State, K.A. was

decided in 2002 when the statute governing dispositional orders did not contain

the language permitting the juvenile court to incorporate the findings of a

dispositional report. 1 [21] Accordingly, the Probation Officer’s Hearing Report, as incorporated in the

juvenile court’s order, together with the court’s findings, comply with the

1 The current version of I.C. § 31-37-18-9 became effective in 2006. See Pub. L. 146-2006, S.E.C. 56.

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statutory requirements of I.C. § 31-37-18-9(a). The incorporated documents,

together with the court’s findings, extensively describe N.L.’s prior placements,

behavioral problems, attempts at treatment, and recommend a specific course of

action based on these facts. Therefore, the juvenile court did not abuse its

discretion when entering its disposition.

III. DOC Wardship

[22] N.L. also disputes the severity of the juvenile court’s disposition to the DOC.

As the current cause is N.L.’s first juvenile adjudication, N.L. maintains that

this second referral to the DOC is more punitive in nature than rehabilitative. [23] Without question, I.C. § 31-37-18-6 requires the juvenile court to select the least

restrictive placement in most situations. However, the statute contains

language which reveals that under certain circumstances a more restrictive

placement might be appropriate. That is, the statute requires placement in the

least restrictive setting only “[i]f consistent with the safety of the community

and the best interest of the child.” I.C. § 31-37-18-6. Thus, the statute

recognizes that in certain situations the best interest of the child is better served

by a more restrictive placement. See Madaras v. State, 425 N.E.2d 670, 672 (Ind.

Ct. App. 1981) (“[W]hile the juvenile code creates a presumption in favor of

disposing of juvenile matters using the least severe disposition available to the

court which will serve the needs of the case, the code explicitly recognizes that

in some instances commitment may be in the best interests of the child and

society in general.”) (citation omitted); M.R. v. State, 605 N.E.2d 204, 208 (Ind.

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Ct. App. 1992) (noting that while commitment to the Indiana Boys School

“should be resorted to only if less severe dispositions are inadequate, there are

times when such commitment is in the best interests of the juvenile and society

in general.”). “In some instances, confinement may be one of the most effective

rehabilitative techniques available” when a juvenile is exposed to the type of

placement he would encounter were he to continue with his poor behavior.

Madaras, 425 N.E.2d at 672. [24] The juvenile court did not abuse its discretion by ordering N.L. to be placed at

the DOC. While we agree that this is N.L.’s first juvenile adjudication, given

N.L.’s history, previous failed treatment attempts, and escalating behavior, the

juvenile court’s dispositional alternatives had become limited. He had already

been placed once at the DOC—during which time he incurred 12 major

disciplinary reports. When on probation, N.L.’s behavior became increasingly

more threatening, ranging from posting photos of himself brandishing weapons

on social media, to hurling threats to his mother’s boyfriend, and getting into

physical fights. He had been expelled from all previous treatment programs and

is yet to successfully complete any court-imposed treatment. Several treatment

programs have refused to admit him due to his escalating conduct and his self-

proclaimed gang association. His mother has now declined to have N.L. reside

in the family home in order to safeguard the other children. He has absconded

from probation for a significant time and removed his tracking monitor. N.L.’s

therapist and probation officer recommended placement at the DOC where he

could be provided with the necessary rehabilitative services.

Court of Appeals of Indiana | Memorandum Decision 45A05-1712-JV-2879 | July 26, 2018 Page 12 of 13 [25] Accordingly, based on N.L.’s history and to safeguard the community, we

refuse to disturb the juvenile court’s disposition, ordering N.L. to the only

facility that is still willing to admit him.

CONCLUSION [26] Based on the foregoing, we hold that the juvenile court did not abuse its

discretion by ordering N.L.’s placement at the DOC.

Affirmed.

May, J. and Mathias, J. concur

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