Opinion
No. 71A03-1101-JV-27
08-09-2011
J.M.G., Appellant-Respondent, v. STATE OF INDIANA, Appellee-Petitioner.
ATTORNEY FOR APPELLANT : MARK F. JAMES Anderson, Agostino, & Keller P.C. South Bend, Indiana ATTORNEYS FOR APPELLEE : GREGORY F. ZOELLER Attorney General of Indiana JODI KATHRYN STEIN Deputy Attorney General Indianapolis, Indiana
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:
MARK F. JAMES
Anderson, Agostino, & Keller P.C.
South Bend, Indiana
ATTORNEYS FOR APPELLEE:
GREGORY F. ZOELLER
Attorney General of Indiana
JODI KATHRYN STEIN
Deputy Attorney General
Indianapolis, Indiana
APPEAL FROM THE ST. JOSEPH PROBATE COURT
The Honorable Peter J. Nemeth, Judge
The Honorable Harold E. Brueseke, Magistrate
Cause Nos. 71J01-1010-JD-682, 71J01-1011-JD-719, 71J01-1012-JD-756, 71J01-1101-JD-10
MEMORANDUM DECISION - NOT FOR PUBLICATION
BRADFORD, Judge
Appellant-Respondent J.M.G. challenges the juvenile court's placing him with the Department of Correction ("DOC") following his true findings for four counts of Battery, one as a Class D felony and three as Class A misdemeanors if committed by an adult. We affirm.
Ind. Code § 35-42-2-1 (2010).
FACTS AND PROCEDURAL HISTORY
Cause Number 71J01-1010-JD-682
On or about May 31, 2010, J.M.G., who was eleven years old, "punched" and "beat up" Talia Rose, which resulted in bodily injury. Tr. p. 7. At the time, J.M.G., who had a history of behavioral problems and mental health treatment, was living in the residential treatment program at Michiana Behavioral Health. Rose was a staff member there.
On October 28, 2010, the State alleged J.M.G., who by this time was twelve, to be a delinquent child based upon the crime of Class A misdemeanor battery if committed by an adult. J.M.G. admitted the allegation at a November 17, 2010 hearing, and the juvenile court found him to be a delinquent child. J.M.G. was returned to his mother's home pending disposition.
Cause Number 71J01-1011-JD-719
On or about November 19, 2010, J.M.G., while at home, knowingly hit his mother in the nose during an argument, causing her pain. On December 1, 2010, the State alleged J.M.G. to be a delinquent child based upon the crimes of Class A misdemeanor battery and Class B misdemeanor criminal mischief if committed by an adult. Pursuant to a plea agreement, J.M.G. admitted the battery allegation at a December 8, 2010 hearing, and the State dismissed the criminal mischief allegation. The juvenile court ordered that J.M.G., who had been in custody since November 19, remain in custody pending disposition.
Cause Number 71J01-1012-JD-756
On or about December 1, 2010, J.M.G. knowingly fought with and bit Juvenile Detention Officer James Henry while Henry was lawfully engaged in the execution of his official duties, causing Henry pain. On December 10, 2010, the State alleged J.M.G. to be a delinquent child based upon the crime of Class D felony battery on a police officer if committed by an adult. On January 12, 2011, J.M.G. admitted the allegation and remained in custody pending disposition.
Cause Number 71J01-1101-JD-10
On or about December 8, 2010, J.M.G. knowingly fought with and struck Juvenile Detention Officer Christopher Meuschke while Meuschke was lawfully engaged in the execution of his official duties. On January 4, 2011, the State alleged J.M.G. to be a delinquent child based upon the crime of Class A misdemeanor battery on a juvenile detention officer. On January 12, 2011, J.M.G. admitted the allegation and remained in custody pending disposition.
Disposition
At the January 18, 2011, combined disposition hearing, the juvenile court placed J.M.G. with the DOC. In doing so, the court stated that J.M.G. was a "menace to society" and that society needed protection from him. Disposition Tr. p. 8. In its dispositional decree, the court included the following factors as support for its decision.
[1] The present offense is serious in nature warranting placement in a secure facility.App. p. 30. This appeal follows.
[2] The child has been previously adjudicated a truant, given statutory warning and consequences of failure and has still failed to abide by the compulsory school attendance laws.
[3] The child's past history of delinquent acts, even though less serious, warrants placement in a secure facility.
[4] The child continues to engage in substance abuse.
[5] Lesser restrictive means of controlling the child's behavior have been investigated or tried.
[6] Furthermore, the child's right to personal freedom is outweighed by the community's right to protection.
DISCUSSION AND DECISION
Upon appeal, J.M.G. challenges the juvenile court's placing him with the DOC. Specifically, J.M.G. claims that several of the above factors are inapplicable to him. J.M.G. additionally argues that his behavior was not adequately egregious to warrant such restrictive placement.
In choosing to place J.M.G. in the DOC, the juvenile court stated as follows:
It doesn't sound like you want to follow any rules; assaulting staff at a private placement, assaulting your mother, assaulting detention officers, 37 incident reports in 59 days that you've been in detention? You have more than earned your way into the Department of Corrections regardless of your age. You are a menace to society, and if that's what we're going to have to do to protect society from people like you, that's what's going to happen, so you better make up your mind which road you're going down, [J.M.G.]. You better start following the rules and keep your hands off of other people or you're going to be locked up like an animal in a cage. It's that simple. The Court is going to adopt the recommendation. You will be going to the Department of Corrections. I'm also going to order that you be held inDisposition Tr. pp. 8-9.
solitary confinement in our detention center. I don't want any more staff injured or any other inmates injured by your reckless conduct.
The choice of a specific disposition for a delinquent child is within the discretion of the trial court, subject to the statutory considerations of the welfare of the child, the safety of the community, and a statutory policy of favoring the least harsh disposition. In re A.M.R., 741 N.E.2d 727, 729 (Ind. Ct. App. 2000). This court may overturn the trial court's disposition order only upon finding an abuse of discretion. Id. An abuse of discretion occurs if the trial court's decision is clearly against the logic and effect of the facts and circumstances before the court, or the reasonable, probable, and actual deductions to be drawn therefrom. Id.
Indiana Code section 31-37-18-6 (2010) sets forth several factors a juvenile court must consider 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.
Section 31-37-18-6 requires the juvenile court to select the least restrictive placement in most situations. K.A. v. State, 775 N.E.2d 382, 386 (Ind. Ct. App. 2002). However, the statute contains language which reveals that under certain circumstances a more restrictive placement might be appropriate. Id. Indeed, 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." Id. (quoting Ind. Code § 31-37-18-6).
Here, the juvenile court was particularly struck by the recurrent nature and scope of J.M.G.'s behavioral problems. J.M.G. has had these problems since he was at least eight years old, and he has received inpatient and outpatient treatment, residential treatment, and medication management. J.M.G. has little regard for authority and has attacked the very people attempting to help him, including his own mother. During his fifty-nine days in secure custody, J.M.G. amassed thirty-seven incident reports. He now has four true findings for battery, one at a Class D felony level, based upon acts of "head butting," biting, and hitting. He has caused one detention officer to require emergency room attention and possibly surgery, and his mother was in the late stages of pregnancy when he battered her. Further, while the record demonstrates that J.M.G. suffers from mental health conditions including bipolar disorder, attention deficit/hyperactivity disorder (ADHD), and oppositional defiant disorder, J.M.G.'s mental health providers have concluded that he is fully able to control his behaviors. Given J.M.G.'s ongoing and destructive behavior, which appears to be escalating despite myriad treatments, we conclude that the juvenile court was within its discretion to prioritize community safety over J.M.G.'s interest in personal freedom.
In reaching this conclusion, we are aware that the court listed in its dispositional order certain factors which simply did not apply, including previous adjudication as a truant with resulting failure to abide by compulsory school attendance laws, history of delinquent acts, and substance abuse. But these were not the only factors considered, and the juvenile court did not rely upon them during the hearing, so their erroneous inclusion in what appears to be a boilerplate dispositional order is not overly harmful in this case. See McElroy v. State, 865 N.E.2d 584, 589 (Ind. 2007) (observing that trial court's findings may be discerned from written and oral statements). Indeed, from all appearances, the juvenile court's dispositional determination was based upon the recurrent and violent nature of J.M.G.'s actions and the resulting threat he posed to society. We are therefore confident that J.M.G. would receive placement in the DOC even if these erroneous factors had not been included in the dispositional order. Remand to correct these errors, therefore, is unnecessary. See, e.g., Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007), clarified on reh'g, 875 N.E.2d 218 (2007) (observing that remand for resentencing is unnecessary where appellate court has confidence that trial court would have imposed same sentence without erroneous factors).
The judgment of the juvenile court is affirmed. ROBB, C.J., and BARNES, J., concur.