FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
ELIZABETH GAMBOA STEVE CARTER
Franklin, Indiana Attorney General of Indiana
GRANT H. CARLTON
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
D.J., )
)
Appellant-Respondent, )
)
vs. ) No. 49A02-0304-JV-000295
)
STATE OF INDIANA, )
)
Appellee-Petitioner. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Christopher Piazza, Magistrate
Cause No. 49D09-0108-JD-003676
November 14, 2003
OPINION - FOR PUBLICATION
MAY, Judge
D.J. appeals his placement in the Kokomo Academy pursuant to the
court’s finding that D.J., while on a suspended commitment to the
Department of Correction, violated the rules of probation for a second
time. On appeal, D.J. questions whether the court abused its discretion by
placing him in the Kokomo Academy, which is outside his county of
residence. We affirm.
FACTS AND PROCEDURAL HISTORY
D.J. is fifteen years old. In 2001, he and his siblings were found
to be children in need of services (“CHINS”). Also, in 2001, D.J. resisted
law enforcement, which would be a Class A misdemeanor if committed by an
adult.[1] D.J. was adjudicated a delinquent, placed on probation with a
suspended commitment to the Department of Correction, and placed in
therapeutic foster care. In June of 2002, D.J. returned from foster care
to his mother’s home.
In September of 2002, D.J. violated his probation by threatening his
mother, refusing to do his chores, and missing school without an excuse.
After D.J. admitted those acts, the court placed him on informal home
detention. On January 24, 2003, D.J. again yelled at his mother, refused
to follow her rules, refused to do his chores, and balled up his fist in a
threatening manner toward his mother and siblings. In addition, D.J. had
again missed school without a valid excuse. On March 3, 2003, D.J.
admitted to violating his suspended commitment a second time. At a March
17th dispositional hearing, the court found the least-restrictive and
appropriate placement for D.J. was at the Kokomo Academy in Kokomo,
Indiana.
DISCUSSION AND DECISION
D.J. claims the court erred by placing him in the Kokomo Academy. We
have previously set out our standard of review in a juvenile case as:
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. We may overturn the trial court’s disposition order only
if we find that it has abused its discretion. 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.
A.M.R. v. State, 741 N.E.2d 727, 729 (Ind. Ct. App. 2000).
First, D.J. claims the placement violates Ind. Code § 31-37-19-23,
which provides:
A court may not place a child who is a delinquent child under IC 31-37-
1 (or IC 31-6-4-1(b)(1) before its repeal) in:
(1) a community based correctional facility for children;
(2) a juvenile detention facility;
(3) a secure facility;
(4) a secure private facility; or
(5) a shelter care facility;
that is located outside the child’s county of residence unless
placement of the child in a comparable facility with adequate services
located in the child’s county of residence is unavailable or the
child’s county of residence does not have an appropriate comparable
facility with adequate services.
D.J. alleges the trial court should have placed him at Washington Place in
Marion County because there is no evidence in the record to support a
finding that Washington Place was not comparable to Kokomo Academy. We
disagree.
D.J. acknowledges that the record indicates Kokomo Academy “is
‘extremely secure and structured.’” (Br. of Appellant at 13 (quoting Tr.
at 18)). D.J. also acknowledges that a “secure facility” is one that
prohibits a juvenile’s departure. (Id. at 13-14 (quoting Ind. Code § 31-9-
2-114)). In contrast, the representative from Washington Place testified
that it is “a therapeutic group home.” (Tr. at 14.) In addition, the
representative testified that, while at Washington Place, D.J. would be
permitted to go to a regular Indianapolis public high school. Because
Kokomo Academy is a secure facility and Washington Place is not, they are
not “comparable” facilities for the purposes of Ind. Code § 31-37-19-23,
and the trial court’s decision to place D.J. at the Kokomo Academy, despite
the availability of a placement at Washington Place, does not amount to an
abuse of discretion.
Second, D.J. claims the court abused its discretion by placing him at
the Kokomo Academy because it was not the “least harsh disposition
available.” (Br. of Appellant at 16.) Ind. Code § 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.
Again, D.J.’s argument presumes that Kokomo Academy and Washington Place
are “comparable” facilities. Based thereupon, D.J. claims placement at
Kokomo Academy is a harsher disposition because it is outside Marion
County, which will greatly impede visits from his mother and participation
by his mother in his treatment. However, as we found above, the two
facilities are not comparable.
The question then becomes whether there is sufficient evidence to
support the trial court’s decision to place D.J. in a secure, rather than
unsecured, facility. The record indicates D.J. was having problems with
aggression. He was yelling at his mother and refusing to obey her or do
his chores. He was balling up his fist to threaten his mother and his
siblings with physical violence. D.J. had a number of unexcused absences
from high school. When he attends public high school, according to the
probation office’s addendum report, he is getting into trouble there.
Given these facts, we cannot say the trial court abused its discretion by
finding D.J. needed to be placed in an environment that provides
“structure” and “accountability,” (Tr. at 18) or by finding that the
appropriate placement would be in a secure facility where D.J. would not be
attending public high school.
Affirmed.
DARDEN, J., and BARNES, J., concur.
-----------------------
[1] Ind. Code § 35-44-3-3.
