KA v. State

• Decision Date: 20 September 2002
• Docket Number: No. 49A02-0204-JV-291.,49A02-0204-JV-291.
• Citation: 775 N.E.2d 382
• Parties: K.A., Appellant-Respondent, v. STATE of Indiana, Appellee-Petitioner.
• Court: Indiana Appellate Court

775 N.E.2d 382

K.A., Appellant-Respondent, v. STATE of Indiana, Appellee-Petitioner.

No. 49A02-0204-JV-291.

Court of Appeals of Indiana.

September 20, 2002.

Janice L. Stevens, Marion County Public Defender Agency, Indianapolis, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Monika Prekopa Talbot, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Appellant-Respondent, K.A., appeals the juvenile court's order committing her to the Department of Correction (DOC) for placement in the girls school after being on suspended commitment to the DOC.

We affirm.

ISSUE

K.A. raises two (2) issues for our review, which we restate as follows:

1. Whether the juvenile court abused its discretion in ordering K.A. committed to the DOC for placement in the Indiana Girls School when a less severe disposition, placement in a foster home, was available.

2. Whether the juvenile court properly indicated its reasons for placing K.A. in the girls school.

FACTS AND PROCEDURAL HISTORY

On November 16, 2001, K.A., while a student at Broad Ripple High School, punched another person, and, as a result, was suspended from school. In violation of her suspension, K.A. returned to school property on November 19, 2001. After being denied entry by school officials, K.A. attempted to run away from a law enforcement officer who identified himself and ordered her to stop. Consequently, K.A. was charged with battery, a Class A misdemeanor, trespass, a Class D felony, and two (2) counts of resisting law enforcement, both Class A misdemeanors.

Thereafter, on November 20, 2001, K.A. admitted to the battery count as charged and criminal trespass, as a Class A misdemeanor, in exchange for the State's dismissal of both counts of resisting law enforcement. After finding a sufficient factual basis for the plea agreement, the juvenile court adjudicated K.A. a delinquent. K.A. waived the filing of the predispositional report and the court proceeded to disposition. K.A. was placed on formal probation, placed at Lutherwood Residential Treatment Center and ordered to "comply with the plan of treatment and rehabilitation put into place by the DAWN Project."(Tr. p. 7).

On December 10, 2001, the probation department alleged that K.A. had violated her probation by failing to "cooperate, participate and complete [a] Court ordered placement at Lutherwood." (Tr. p. 8). Specifically, the probation department alleged that on November 29, 2001, K.A. had failed to return to Lutherwood after school. The probation department requested that K.A.'s probation be revoked and that an alternative disposition be imposed.

At the probation violation hearing on January 2, 2002, K.A. admitted the alleged violation, explaining that she stayed the night at a friend's house without informing anyone at Lutherwood. The juvenile court found K.A. in violation of her probation and set the dispositional hearing for January 8, 2002.

At the dispositional hearing, the guardian ad litem addressed the court and asked the judge to give K.A. "one more opportunity" by returning K.A. to Lutherwood instead of placing her at the Indiana Girls School. (Tr. p. 13). Although the juvenile court committed K.A. to the DOC for placement in the girls school, it suspended the commitment and ordered her to continue her placement at Lutherwood. However, the court warned K.A. that were she to break any rule or regulation, she would be committed to the girls school.

On January 31, 2002, a case report was prepared by a representative of the DAWN Project. The report indicated that K.A. had been "spending time on the weekends with a foster family that ha[d] expressed interest in taking [K.A.] upon her release from Lutherwood." (Appellant's App. p. 51). The report further provided that the "goal is for [K.A.] to complete her treatment at Lutherwood then transition to foster care." (Appellant's App. p. 51).

On February 19, 2002, K.A.'s probation officer filed an information alleging that K.A. had violated the terms of her suspended commitment. Specifically, it was alleged that K.A. physically assaulted and used profanity at a resident in placement and was placed on "Elopement Precautions" for allegedly planning to run away. (Appellant's App. p. 59).

At the March 19, 2002 hearing, K.A. admitted using profanity at Lutherwood in violation of the facility's rules in exchange for the State's dismissal of the other alleged violations. The State also agreed to make no recommendation as to the disposition. The juvenile court accepted the plea agreement and proceeded to disposition following K.A.'s waiver of the filing of the predispositional report.

The public defender who represented K.A. made the following recommendation with regard to K.A.'s placement:

Judge I would apparently argue that Lutherwood, while my client was in placement there, did state that my client had been doing better in her school and in her behavior. I know that Gretchen Gentry is here with the Office of Family & Children and is recommending that my client be placed back at the Lutherwood facility. There's a representative here from Lutherwood, that's indicated to me that Lutherwood has filed a notice of discharge on [K.A.], so I, obviously those two things are conflicting in nature. So I would leave it in the Court's discretion as to whether or not my client gets sent back to Lutherwood and, I just ask that she's [sic] be continued on a suspended commitment.

(Tr. p. 22). The guardian ad litem then addressed the court and informed the court that K.A. had been visiting a foster home on a regular basis during her placement at Lutherwood and that the foster mother had requested that K.A. be placed with her. Upon learning of the foster mother's request, the public defender also requested that K.A. be placed with the foster mother, as, according to the public defender, that was the least restrictive placement available.

A representative from the DAWN Project, Ms. Buhner, was also heard by the court and informed the court that Lutherwood was no longer "an appropriate place for [K.A.] at this time" and that "[i]n speaking with staff there, I think [K.A.'s] pretty much come to the end of her treatment, as far as a residential placement." (Tr. p. 24). However, Buhner added that she knew that K.A. wanted a family and wanted to live with her foster mom. Upon hearing that statement, the court asked Buhner if family placement had been tried previously with K.A. Ms. Buhner informed the court that although family placement had not been tried recently, "a foster family . . . last summer . . . was unsuccessful." (Tr. p. 24-25). Finally, the court heard from the foster mother who stated that she had "had [K.A.] off and on ever since last year" and "enjoyed working with her." (Tr. p. 25).

After considering the testimony, the juvenile court ordered K.A. committed to the DOC for placement in the girls school with a recommended term of six months. K.A. now appeals.

DISCUSSION AND DECISION

K.A. contends that the juvenile court abused its discretion in committing her to the DOC for placement at the girls school. Specifically, she contends that the court's disposition contravenes the rehabilitative goals of the juvenile code and a statutory mandate that the placement be the least restrictive alternative.

In support of her contention, K.A. first points out that our legislature has set forth certain policies concerning the treatment of juveniles in this state. Those policies are contained in Ind.Code § 31-10-2-1, which provides in pertinent part as follows:

It is the policy of this state and the purpose of this title to:

(1) recognize the importance of family and children in our society;

. . .

(5) ensure that children within the juvenile justice system are treated as persons in need of care, protection, treatment, and rehabilitation;

. . .

(7) provide for adoption as a viable permanency plan for children who are adjudicated children in need of services;¹

. . .

K.A. also refers to I.C. § 31-37-18-6, which sets forth several factors a juvenile court must consider when entering a dispositional decree. That section provides as follows:

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.

I.C. § 31-37-18-6 (emphasis added). According to K.A., the dispositional order entered by the court "is not consistent with the goals of the juvenile code because incarceration is punitive, not rehabilitative, it is not the least restrictive alternative, and since a foster family was available and willing to take her, the disposition does not support family life or promote adoption." (Appellant's Br. p. 6). K.A. also contends that the comments the juvenile court made during the dispositional hearing on the probation violation "sound[ed] more punitive than rehabilitative." (Appellant's Br. p. 10).

The State responds that although the girls school "may not be the least restrictive alternative available in the present case, it is an appropriate setting for [K.A.] who has shown disregard for the trial court's rulings and kept violating her probation in spite of the trial court's warnings." (Appellee's Br. p. 5). The State further asserts that K.A.'s placement in the girls school is "consistent with [K.A.'s] best interest and special needs . . . [and will provide] a very structured environment that will impress upon...