R.P. v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Aug 14 2019, 8:51 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Michelle Laux Curtis T. Hill, Jr. South Bend, Indiana Attorney General of Indiana Courtney L. Staton Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

R.P., August 14, 2019 Appellant-Respondent, Court of Appeals Case No. 19A-JV-536 v. Appeal from the St. Joseph Probate Court State of Indiana, The Honorable Jason A. Cichowicz, Appellee-Petitioner. Judge The Honorable Graham C. Polando, Magistrate Trial Court Cause Nos. 71J01-1811-JD-401 71J01-1811-JD-407

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Case Summary [1] R.P. was adjudicated a delinquent and placed in the Indiana Department of

Correction, Juvenile Division (“the DOC”). R.P. appeals, presenting the sole

issue of whether the juvenile court abused its discretion by placing him in the

DOC for his first delinquency adjudication. We affirm.

Facts and Procedural History [2] In 2017, R.P. was removed from his home and adjudicated a Child in Need of

Services (“CHINS”) because he had been physically abused and neglected.

During the pendency of the CHINS proceedings, R.P. was placed in emergency

shelter care, relative placement, foster care, and the Youth Opportunity Center

(“YOC”). During R.P.’s placement at the YOC, he threatened staff, was

physically aggressive, and destroyed property. He also threatened to kill

himself. After ten months, YOC requested that R.P. be removed for his

personal safety and the safety of the staff and residents. [3] The Indiana Department of Child Services (“the DCS”) contacted nine facilities

in an effort to find a secure residential placement for R.P. After none of those

facilities would accept R.P., the DCS recommended that he be returned to the

custody of his mother, S.B. (“Mother”). Shortly thereafter, Mother called

police to report that R.P. had pulled her hair and struck her. [4] On November 29 and 30, 2018, the State filed delinquency petitions under three

cause numbers, alleging that R.P., then aged fourteen, had engaged in conduct

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that would, if he were an adult, constitute battery, domestic battery, and

criminal mischief. Specifically, the State alleged that R.P. battered Mother and

a YOC worker and broke windshields of four YOC vehicles. [5] On December 19, 2018, R.P. admitted the truth of the allegations of domestic

battery and criminal mischief; the battery allegation was dismissed. R.P. was

released to the custody of Mother under Trust House Arrest program

conditions. [6] On February 13, 2018, R.P. appeared at a dispositional hearing. Due to the

problems in prior placements and the unavailability of another secure juvenile

placement facility, the probation department recommended that R.P. be placed

in the DOC. The juvenile court ordered R.P.’s placement in the DOC. He

now appeals.

Discussion and Decision [7] 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 court’s 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

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deductions to be drawn therefrom.” D.B. v. State, 842 N.E.2d 399, 404-05 (Ind.

Ct. App. 2006). [8] Indiana Code Section 31-37-18-6 provides:

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.

[9] 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,

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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. [10] R.P. has a long history of unsuccessful placements. In 2017, after he was

adjudicated a CHINS, R.P. was placed with his paternal grandparents until

they requested his removal. R.P. was placed with a foster family but the foster

parents alleged that R.P. destroyed and stole property and was verbally

aggressive. Both the foster parents and R.P. asked that the foster care

placement be ended. R.P. was placed in emergency shelter care at Bashor

Children’s Home but the placement was marred by reported incidents of

property destruction, verbal defiance, physical aggression, threats to peers, a

run-away attempt, and a physical assault upon staff. R.P. was temporarily

returned to Mother and then placed in the YOC. [11] At the YOC, R.P. was subjected to restraint on multiple occasions. YOC

reports disclosed the basis for those restraints:

1/17/18 R.P. threatened to kill himself.

1/28/18 R.P. broke a telephone, threw slippers, and threatened staff members.

1/29/18 R.P. threatened another resident.

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2/10/18 R.P. (with a closed fist) hit staff attempting to utilize suicide precaution blankets.

2/17/18 R.P. threatened to hit staff, kicked his bedroom door, and attempted to bite a staff member.

5/11/18 R.P. swallowed dice in a suicide attempt.

5/31/18 After another resident killed a frog, R.P. participated in dissecting, skinning, and playing with it.

6/2/18 R.P. pulled a fire alarm and banged his head on the floor.

7/8/18 R.P. kicked and attempted to punch staff members.

9/23/18 R.P. (with a closed fist) struck a staff member in the mouth.

9/24/18 R.P. attempted to bite staff members.

10/1/18 R.P. threatened to kill staff members and pushed them several times.

10/4/18 R.P. hit a staff member in the head, punched a staff member in the chest, and spit at staff.

(App. Vol. IV, pg. 71.) [12] R.P. contends that his significant adjustment difficulties arose from his history

of abuse and neglect and that a first offense does not justify placement in the

DOC. If R.P. could receive the intensive services he needs in a less restrictive

environment, we would be inclined to agree. However, nine youth facilities

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declined to accept R.P. The placement 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. Ultimately,

the juvenile court was severely limited in the options for R.P. We cannot say

that the juvenile court abused its discretion. [13] Affirmed.

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

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