A.K. v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be regarded as precedent or cited before any Oct 17 2019, 10:53 am

court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Kimberly A. Jackson Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana J.T. Whitehead Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

A.K., October 17, 2019 Appellant, Court of Appeals Case No. 19A-JV-1110 v. Appeal from the Miami Superior Court State of Indiana, The Honorable Daniel C. Banina, Appellee. Judge Trial Court Cause No. 52D02-1706-JD-15

Brown, Judge. Court of Appeals of Indiana | Memorandum Decision 19A-JV-1110 | October 17, 2019 Page 1 of 14 [1] A.K. appeals the juvenile court’s dispositional order. He raises two issues

which we revise and restate as whether the court denied him due process or

abused its discretion in awarding wardship of him to the Indiana Department of

Correction (the “DOC”). We affirm.

Facts and Procedural History [2] In June 2017, the State filed a Petition Alleging Delinquency which alleged that

A.K., who was born in August 2002, committed two acts of child molesting

which would constitute level 3 felonies if committed by an adult. On August

23, 2017, the court held a hearing at which A.K. admitted to the allegations

contained in one of the counts and the court dismissed the other count. A.K.

admitted that he knowingly submitted to sexual conduct with B.C.N., a person

he knew was eleven years old, and the conduct was video recorded using a

school laptop. The parties stipulated to the admission of the probable cause

affidavit for purposes of supplementing the factual basis. According to the

affidavit, school staff discovered video recordings on B.C.N.’s school-issued

laptop, the recordings depicted B.C.N. and his fourteen-year-old half-brother

A.K. exposing themselves, and in one of the recordings, B.C.N. performed oral

sex on A.K. The court found A.K. to be delinquent and ordered that he be

placed at White’s Residential and Family Services in its sexually maladaptive

youth program. [3] The juvenile court held review hearings on November 22, 2017, and February

21, 2018, and ordered that A.K. remain at White’s Residential. On May 16,

2018, the court held a review hearing at which A.K’s probation officer testified Court of Appeals of Indiana | Memorandum Decision 19A-JV-1110 | October 17, 2019 Page 2 of 14

that A.K. had not progressed very quickly in treatment, his behavior was not

easy to manage, he had “been mouthy with staff,” he snuck a turtle and a frog

into his room, he was “defiant in general,” and that, despite multiple warnings

to stop “horse playing with other residents,” he climbed on someone, fell, and

broke his arm, resulting in surgery. Transcript Volume II at 23. The court did

not change A.K.’s placement and told him that “the longer you decide to not go

with the program, . . . the longer you’re going to be there or someplace else.”

Id. at 26. On August 15, 2018, the court held a review hearing at which the

prosecutor indicated that he had been notified that White’s Residential was

considering removing A.K. from its program and that he anticipated a violation

would be filed. [4] On August 17, 2018, the State filed a petition for modification of dispositional

decree alleging that A.K. violated the conditions of his probation by failing to

obey all terms and conditions of programming at White’s Residential resulting

in unsuccessful termination from the program. The modification report stated

that A.K. had been placed at White’s Residential for almost one year, he was

placed in the sexually maladaptive youth program, he was refusing to complete

treatment, and that his behaviors had escalated to the point he was no longer

manageable at White’s Residential. On August 22, 2018, the court held a

hearing at which A.K. admitted that he failed to comply with the terms and

conditions of the program. He admitted there were five major offenses between

July 3rd and July 23rd, including that he was “out of bounds” twice, hit a peer

in the groin, sharpened a crochet hook into a weapon, and brought unapproved

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items back from campus visitation. Id. at 36. The court found that A.K.

violated his probation by being unsuccessfully discharged from White’s

Residential and ordered that he be temporarily placed at the Robert J. Kinsey

Youth Center. On August 29, 2018, the court held a placement hearing at

which it was informed that A.K. had been accepted at Oaklawn, the Children’s

Campus. On September 13, 2018, the court issued an agreed order on

placement that A.K. be released from Kinsey to Oaklawn for the purpose of

residential placement. [5] On December 17, 2018, A.K.’s probation officer filed a placement review and

attached October and November 2018 monthly treatment reports. A report

dated November 1, 2018, states that A.K. made minimal progress and that

there were thirteen incidents to report in the period, including that on October

14th and 25th, he was physically aggressive toward staff, on October 15th he

was not following unit structure and used a paper towel with paint on it to

cover up the safe room window and attempted to push past staff which resulted

in a restraint, on October 25th he attempted to engage in property destruction

and tied clothing around his neck resulting in a restraint and seclusion, on

October 7th and 20th he engaged in self-harm behaviors, on October 16th he

attempted to elope, on October 9th and 11th he punched a wall until his

knuckles bled and was treated by the nurse, and on October 27th he had to

review the rules of masturbation with staff after telling them he went over

shower time because he was masturbating in the shower. A report dated

December 1, 2018, states that A.K. made minimal progress and that there were

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ten incidents to report in the period, including that on November 17th he

attempted to engage in property destruction but was stopped by staff, on

November 8th, 13th, and 30th he engaged in physical aggression toward staff,

on November 15th, 19th, and 26th he engaged in property destruction

behaviors, on November 30th he tied a shirt around his neck, on November 6th

he attempted to be physically aggressive towards a peer, and on November 27th

he refused to go to his room when directed, during the incident saw a female

staff member’s cleavage, and later told a peer about the incident and engaged in

inappropriate sexual talk. [6] On December 19, 2018, the court held a placement review hearing at which

A.K.’s probation officer testified that, until the previous two or three weeks,

A.K. “was doing pretty horribly,” that she “was receiving multiple incident

reports daily regarding his behavior, [] destroying property, being out of

bounds, [] some inappropriate sexual activities, [and] blatant back talk,” and

“he just seems to have turned it around here recently.” Id. at 50. She indicated

that, in the prior two weeks, she received one or two incident reports. She

indicated that, in order for him to make progress towards returning home, he

had to follow the rules, that he was in “group B” which was very structured for

those who had been causing a lot of trouble in the group environment, that

“he’s got to get some of those restrictions off,” and “he is working towards

doing that by participating.” Id. at 50-51. She indicated that A.K. had a

weighted blanket for two weeks, that it helped him with his anxiety, there are

times he wraps himself up in it so that just his face is out, and that he talked

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about how it helped him to think before he acts. The court ordered that A.K.

remain at Oaklawn. [7] On March 15, 2019, the State filed a Verified Petition for Modification of

Dispositional Decree alleging that A.K. had failed to obey all terms and

conditions of programming at Oaklawn resulting in unsuccessful termination

from the program. On March 20, 2019, the court held a modification hearing.

The court asked A.K.’s counsel if there was an objection to A.K. being placed

in secure detention pending further hearing, and counsel stated that ultimately

they knew that was what was going to happen but that it was important for the

representative from Oaklawn to testify as to what went wrong. A.K.’s care

facilitator at Oaklawn testified that A.K. was unsuccessfully terminated from its

program and that they had done a lot of creative thinking with him and placed

extra support to help him be successful. She testified that A.K.’s therapist talked

to him about the programming and they determined that he made poor choices

because he wanted to continue receiving extra attention. [8] The care facilitator testified that the first four months of A.K.’s treatment

related to teaching him coping skills so that he could manage his anxiety and

they then started to work on his trauma which he was not interested in doing.

She testified that he completed perhaps a month of his treatment at most and

showed very little if any motivation. When asked if she saw unsafe behavior

that morning just outside the courtroom, she replied affirmatively and stated

that, when they were telling him “here’s what’s going on” and “you’ve made

some poor choices,” his first response was to punch the limestone wall. Id. at

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63. She also testified that A.K. engaged in self-harm behaviors, took pieces of

clothing and wrapped them around his throat, and engaged in some suicidal

ideation. She indicated he is currently passing classes but is struggling

behaviorally in school, has been suspended multiple times, and there was an

incident in February where someone asked him to do something and he refused

and stayed on the classroom floor for ten or fifteen minutes. She stated that

A.K. was not advancing or taking advantage of the services at Oaklawn. [9] A.K.’s probation officer recommended that A.K. be transferred to Kinsey and

that an additional hearing be set. His counsel asked the probation officer about

A.K.’s grandmother as an alternative family placement, and the officer

indicated that she could speak with the grandmother and noted that she had

concerns with A.K. being placed in a less restrictive setting. The court placed

A.K. in secure detention at Kinsey pending the dispositional hearing. [10] On April 8, 2019, A.K.’s probation officer filed a predispositional report. The

report states that A.K. and his parents would like him to be released to his

grandmother’s custody on home detention. It states that A.K. had been in

residential placement since 2017, lacks social skills, struggles with peer relations

and is often defiant with adults, has struggled in the school setting since the first

grade, was expelled for the first time in the fifth grade, and has continued to

struggle in the school setting in residential placement. The report states that

A.K. has been diagnosed with post-traumatic stress disorder, conduct disorder,

adolescent onset type, and attention deficit hyperactivity disorder, that he has a

history of sexually maladaptive behaviors, he is also a victim of sexual abuse,

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his level of sexual recidivism is high and he has a high level of treatment needs,

and he is prescribed a number of medications. It states that he participated in a

psychosexual evaluation prior to placement at White’s Residential, was

unsuccessfully discharged from there and from Oaklawn, and he received

treatment for sexually maladaptive youth at both placements. It states that

A.K. was inpatient at Michiana Behavioral Healthcare in the fifth grade due to

being out of control at home and participating in gang activity at school and

remained at the facility for one week. The report states: “It should be noted this

offense occurred while the first matter was pending. This resulted in the

juvenile being placed in secure detention.” Appellant’s Appendix Volume III at

64. It states that he received thirty-five incident reports in total while at

Oaklawn. [11] The probation officer wrote that, although she appreciates the family’s desire to

have A.K. return home, she continued to be concerned with the safety of other

children, that A.K.’s grandmother is quite ill and will be away from the home to

undergo treatment, that the grandmother has a close relationship with the other

children and allowing A.K. to live in her home will result in the other children

being punished by not being allowed contact with their grandmother, and that

driving through the neighborhood she counted nine young children outside

playing unsupervised. With respect to placement at the DOC, the report states

that A.K. continues to be a high risk to reoffend and that, based on his lack of

improvement, failure to complete treatment, and extreme defiance, it is the

probation officer’s opinion that placement at the juvenile division of the DOC is

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the only viable placement. The report finds that A.K. is a danger to himself and

others. [12] On April 10, 2019, the court held a dispositional hearing. A.K.’s probation

officer testified that she received an email from Kinsey that morning containing

a detention center review memo which indicated that, during the prior two

days, A.K. had been dropped four levels due to behaviors in school, he was

caught visiting unauthorized websites, was not doing his work, and was

drawing inappropriate pictures. She recommended that A.K. complete the sex

offender program through the DOC, and that until he works through that

program he will continue to be a high risk to reoffend. She indicated the family

indicated it did not want A.K. as far away as Tennessee at a potential facility

and that she recommended that he complete the sexually maladaptive youth

program at the Indiana Boy’s School. [13] The court stated its belief that A.K. continued to be a danger to the community,

that he had been in two programs with minimal to no improvement, that he

continues to be a high risk, and that “he’s basically ran the gamut, gauntlet”

and “it’s time to place at Indiana Boy’s School” with the recommendation that

he complete the sexually maladaptive youth program. Transcript Volume II at

92. [14] The court issued a dispositional order awarding wardship of A.K. to the DOC

for housing in a correctional facility for children. The order states in part:

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The Court finds this disposition is consistent with the safety and the best interest of the child and is the least restrictive and most appropriate setting available close to the parents’ home. Further, this disposition least interferes with the family’s autonomy, is least disruptive of family life, imposes the least restraint on the freedom of the child and the child’s parent(s); and provides a reasonable opportunity for participation by the child’s parent(s). The Court finds the child is in need of care and rehabilitation which can best be provided by his commitment to the [DOC]. Prior attempts at rehabilitation through less restrictive means, including residential placement, home based counseling, and probation supervision have been unsuccessful.

Appellant’s Appendix Volume II at 11. The court recommended that A.K. be

placed in a facility where he can continue with his education, receive mental

health counseling, receive sexually maladaptive youth treatment, and

participate in a behavior modification program.

Discussion [15] A.K. argues that the State failed to produce any evidence of the terms of his

probation and that the juvenile court violated his right to due process in

modifying the dispositional order. He further argues the court abused its

discretion in committing him to the DOC, the State did not investigate or

improperly rejected less restrictive placements, and his misconduct and

circumstances did not justify a modification resulting in his commitment to the

DOC. The State responds that it sufficiently proved that A.K. understood the

terms and conditions that he was supposed to follow and that the factfinder

could infer that he was made aware of the rules at Oaklawn. It argues that

A.K. was given the opportunity to try placements at facilities other than the

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DOC, that the facilities dismissed him from their programs due to his continued

behavioral problems and failure to make significant progress in treatment, and

that, by the time the court placed him with the DOC, it had no other

alternative. [16] The standard for determining what due process requires in a particular juvenile

proceeding is “fundamental fairness.” D.A. v. State, 967 N.E.2d 59, 64-65 (Ind.

Ct. App. 2012). A.K.’s care facilitator testified at the March 20, 2019

modification hearing regarding A.K.’s behavior which included destruction of

property and attempts to hurt others and himself and ultimate discharge from

Oaklawn, and A.K.’s counsel questioned his probation officer about possible

placement with his grandmother. Later, on April 8, 2019, A.K.’s probation

officer filed a predispositional report reflecting the officer’s thorough

consideration of placement with A.K.’s grandmother and the officer’s opinion

that placement with the DOC is the only viable placement. At the April 10,

2019 hearing, A.K. and his parents were present, and his counsel cross-

examined his care facilitator and probation officer and made arguments on his

behalf. A.K. has not shown that he was denied fundamental fairness or due

process. See D.A., 967 N.E.2d at 65 (observing D.A.’s probation officer

explained the reasons for the department’s recommendation, D.A. and his

mother were present, his counsel presented argument, and the proceeding did

not violate fundamental fairness); S.L.B. v. State, 434 N.E.2d 155, 157 (Ind. Ct.

App. 1982) (noting S.L.B. was well aware of the purpose for which she was

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called before the court, she was present for the hearing, her position was

expressed through her counsel, and fundamental fairness was served). [17] The juvenile court is given wide latitude and great flexibility in determining the

disposition of a delinquent child. D.A., 967 N.E.2d at 65. However, its

discretion is circumscribed by Ind. Code § 31-37-18-6, which provides that, “[i]f

consistent with the safety of the community and the best interest of the child,”

the juvenile court shall enter a dispositional decree that is “in the least

restrictive (most family like) and most appropriate setting available” and “close

to the parents’ home, consistent with the best interest and special needs of the

child”; least interferes with family autonomy; is least disruptive of family life;

imposes the least restraint on the freedom of the child and the child’s parent,

guardian, or custodian; and provides a reasonable opportunity for participation

by the child’s parent, guardian, or custodian. Under the statute, placement in

the least restrictive and most appropriate setting available applies only “[i]f

consistent with the safety of the community and the best interest of the child.”

J.D. v. State, 859 N.E.2d 341, 346 (Ind. 2007) (citing Ind. Code § 31-37-18-6).

We will not overturn the juvenile court’s disposition order absent an abuse of

discretion, which occurs if its actions are clearly against the logic and effect of

the facts and circumstances before it or the reasonable inferences that may be

drawn therefrom. R.H. v. State, 937 N.E.2d 386, 388 (Ind. Ct. App. 2010). [18] The juvenile court heard testimony from A.K.’s probation officer and care

facilitator at Oaklawn and was able to review the filed incident reports and

dispositional report. It heard evidence regarding his behavior, treatment,

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placement history, and the reasons for his dismissal from the programs, and it

considered the parties’ arguments. In its order awarding wardship of A.K. to

the DOC for housing in a facility for children, the court indicated that it had

considered among other factors the interests of A.K. and the public, alternatives

for the care, treatment, and rehabilitation for A.K., the necessity, nature, and

extent of the participation by a parent, guardian, or custodian in a program of

care, treatment, or rehabilitation for the juvenile, and services if any that should

be ordered for the parents or guardian. The court reviewed A.K.’s history of

placements and found that less restrictive options are not appropriate. [19] Based upon the record, and in light of A.K.’s delinquent behavior and failure to

adequately respond to prior attempts at rehabilitation, we conclude that the

placement ordered by the juvenile court is consistent with his best interest and

the safety of the community and find no abuse of discretion. See D.E. v. State,

962 N.E.2d 94, 97 (Ind. Ct. App. 2011) (holding the juvenile court did not

abuse its discretion in placing D.E. in a DOC facility even though there was a

less restrictive option available where earlier attempts to rehabilitate his

behavior were unsuccessful); K.A. v. State, 775 N.E.2d 382, 387 (Ind. Ct. App.

2002) (holding the juvenile court did not abuse its discretion in placing K.A. at

the DOC where previous less restrictive placements were unsuccessful and

continued placement at a residential treatment center was apparently no longer

an available option), trans. denied. [20] For the foregoing reasons, we affirm the juvenile court’s order.

Court of Appeals of Indiana | Memorandum Decision 19A-JV-1110 | October 17, 2019 Page 13 of 14 [21] Affirmed.

Altice, J., and Tavitas, J., concur.

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