C.T. v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: March 28, 2018
• Docket: 50A03-1711-JV-2794
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Mar 28 2018, 7:26 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Janette E. Surrisi Curtis T. Hill, Jr. Wyland, Humphrey & Clevenger, LLP Attorney General of Indiana Plymouth, Indiana Justin F. Roebel Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

C.T., March 28, 2018 Appellant-Respondent, Court of Appeals Case No. 50A03-1711-JV-2794 v. Appeal from the Marshall Circuit Court State of Indiana, The Honorable Curtis D. Palmer, Appellee-Petitioner Judge Trial Court Cause No. 50C01-1612-JD-52

Baker, Judge.

Court of Appeals of Indiana | Memorandum Decision 50A03-1711-JV-2794 | March 28, 2018 Page 1 of 12 [1] C.T. appeals the amended dispositional order making him a ward of the

Department of Correction (DOC). Among other things, C.T. raises the

following arguments on appeal: (1) the original dispositional order is void

because of the circumstances surrounding the finding of delinquency; (2) the

amended dispositional order is erroneous because he was not afforded due

process with respect to the change of placement from a residential facility to the

DOC; and (3) the trial court erred by making him a ward of the DOC. Finding

no error, we affirm.

Facts [2] On December 12, 2016, the State filed a petition alleging that then-thirteen-

year-old C.T. had committed acts that would have been child molesting,

intimidation, domestic battery, and criminal mischief, had they been committed

by an adult; the State later added another allegation of domestic battery and an

allegation of battery.

[3] At a March 20, 2017, hearing, C.T. admitted to two counts of domestic battery

and one count of battery in exchange for the dismissal of the remaining charges.

The parties also agreed that C.T. would be placed in the sexually maladaptive

behavior program at White’s Residential Treatment Center. A judge pro

tempore presided over that hearing. After making all required advisements and

establishing a factual basis for the admitted allegations, the judge pro tempore

found “that a sufficient factual basis exists for the juvenile delinquency” and

indicated that he would enter an order to that effect. Mar. 20 Hrg. Tr. p. 9.

Court of Appeals of Indiana | Memorandum Decision 50A03-1711-JV-2794 | March 28, 2018 Page 2 of 12 The same day, the presiding judge—who did not preside over the hearing—

entered an order finding C.T. “to be a delinquent juvenile.” Appellant’s App.

Vol. II p. 114-17.

[4] At C.T.’s first delinquency review hearing on June 19, 2017, the residential

facility reported that C.T. was exhibiting significant behavioral problems. He

had committed a “Major Offense” of “Extreme Disrespect,” a “Major Offense”

of “Defiant Behavior,” and a “Maximum Offense” of assault on a peer. Id. at

133.

[5] At C.T.’s second review hearing on September 25, 2017, the residential facility

reported that C.T. had accumulated “14 major offenses and 2 maximum

offenses” since starting the program. Id. at 186. According to the report, C.T.’s

behavior was worsening. For example, C.T. was observed exchanging sexually

explicit notes with a female peer and attempting to touch a male peer in a

sexual manner. The facility stated that if C.T. could not learn to regulate his

behavior, treatment there would not be effective, warning that his placement

there would end if his behavior did not improve.

[6] On October 20, 2017, the probation department notified the juvenile court that

C.T. would have to leave White’s within thirty days because of continuing

behavioral issues, and the juvenile court held a review hearing on the issue on

October 30. At that hearing, the probation department informed the juvenile

court that C.T. was left with two placement options: the DOC, which has a

“highly successful sex offender program” at the Pendleton Juvenile Facility, or

Court of Appeals of Indiana | Memorandum Decision 50A03-1711-JV-2794 | March 28, 2018 Page 3 of 12 the Maples Unit at Oaklawn, which is a treatment facility similar to White’s.

The probation department believed that the Oaklawn residential program

would not meet C.T.’s needs because it is so similar to the program at White’s

that he had just failed. C.T.’s mother testified that she did not believe the DOC

would be a good environment for C.T. and asked that he be placed in Oaklawn;

C.T. made the same request. Ultimately, the juvenile court agreed with

probation that the DOC would be the most appropriate placement:

. . . In life, to get somewhere you get to where you earn your place, and you have not done anything to earn anything at this point. Pretty much everything I have heard from White[’]s about you has been negative. You come in today and say, well in the past few days, or in the past few weeks, I’ve tried to do better; it’s too little too late. . . .

So, I’m gonna send you to the Pendleton program because I think the disciplinary structure there is a little firmer than what was available at White[’]s. And I think White[’]s to Oaklawn is kind of a parallel move from one, essentially . . . less structured environment, to another less structured environment. . . . So, you’ll have your chance to earn your way either home or to a less restrictive placement, by how you do at the Pendleton program.

Oct. 30 Hrg. Tr. p. 9-11. The amended dispositional order entered following

this hearing states as follows: “Pursuant to (IC 31-37-19-6) (31-37-19-9) [sic],

the Court now awards wardship of the child to the [DOC] for housing in any

correctional facility for children.” Appellant’s App. Vol. II p. 18. C.T. now

appeals.

Court of Appeals of Indiana | Memorandum Decision 50A03-1711-JV-2794 | March 28, 2018 Page 4 of 12 Discussion and Decision I. Dispositional Orders [7] C.T. first takes aim at the dispositional orders. First, he argues that the initial

dispositional order is void because of the circumstances surrounding the

delinquency finding. Second, he argues that the amended dispositional order is

invalid because he was not afforded due process with respect to the change of

placement.

[8] When a person under the age of eighteen commits an act that would be a

criminal offense if committed by an adult, the person may be adjudicated a

delinquent child. Ind. Code §§ 31-37-1-1, -2. After making a delinquency

finding, the juvenile court enters a dispositional decree providing for the

placement of the child and other sanctions or treatment, all of which is intended

to promote rehabilitation. J.D. v. State, 853 N.E.2d 945, 947 (Ind. 2006).

A. Initial Delinquency Finding [9] C.T. contends that the juvenile court’s initial finding of delinquency is void

because the presiding judge, who did not preside over the actual hearing,

entered the order finding delinquency. Initially, we note that this claim of error

should have been raised long ago. C.T. did not object when the judge pro

tempore made an oral finding of delinquency, nor did he object when the

presiding judge entered the initial dispositional order. As such, he has waived

this issue.

Court of Appeals of Indiana | Memorandum Decision 50A03-1711-JV-2794 | March 28, 2018 Page 5 of 12 [10] C.T. responds that he is entitled to raise this argument at this late date because

in his opinion, the initial dispositional order is void ab initio. A void judgment

can be attacked at any time, even collaterally. J.C. v. J.B., 991 N.E.2d 110, 115

(Ind. 2013) (drawing contrast between void judgments and voidable judgments,

which will stand unless attacked on direct appeal).

[11] We will briefly address C.T.’s argument. At the hearing leading up to the initial

dispositional order, C.T. admitted to committing three delinquent acts and to

being a delinquent child. At the end of that hearing, the judge pro tempore

orally found C.T. to be a delinquent child. And later that same day, the

presiding judge entered a dispositional order finding, in writing, that C.T. is a

delinquent child.

[12] C.T. directs our attention to well-established caselaw that the judge who hears

evidence at an evidentiary hearing should be the same judge who enters the

final judgment:

A party is entitled to a determination of the issues by the judge who heard the evidence, and, where a case is tried to a judge who resigns before determining the issues, a successor judge cannot decide the issues or enter findings without a trial de novo. When a successor judge who did not hear the evidence or observe the witnesses’ demeanor attempts to weigh evidence and make credibility determinations, the judge “is depriving a party of an essential element of the trial process.”

In re I.P., 5 N.E.3d 750, 752 (Ind. 2014) (quoting In re D.P., 994 N.E.2d 1228,

1232 (Ind. Ct. App. 2013)) (internal citations omitted). Here, however, there

Court of Appeals of Indiana | Memorandum Decision 50A03-1711-JV-2794 | March 28, 2018 Page 6 of 12 was no evidence to weigh; there was no witness demeanor to evaluate; and

there were no credibility determinations to make. C.T. admitted that he was

delinquent, the judge pro tempore agreed, and the presiding judge

memorialized the admission and the findings in writing.

[13] C.T.’s quarrels with this process elevate form over substance to an untenable

degree. It is readily apparent that every step of this process confirmed the

finding of delinquency, and we find that the initial dispositional order is neither

void nor voidable. We decline to reverse on this basis.1

B. Due Process [14] C.T. next directs our attention to the hearing at which the juvenile court

modified his placement to be the DOC. He argues that the trial court failed to

follow the steps dictated by the Indiana Code when modifying the dispositional

order, thereby violating his due process rights.

[15] At the September 25, 2017, delinquency review hearing, it was acknowledged

that C.T.’s placement with White’s was in peril because of his behavior. At the

conclusion of the hearing, the trial court scheduled the next review hearing in

approximately six months, but stated that it was likely that the case would need

1 We likewise decline to reverse merely because the amended dispositional order, which made C.T. a ward of the DOC, inadvertently omits the delinquency finding.

Court of Appeals of Indiana | Memorandum Decision 50A03-1711-JV-2794 | March 28, 2018 Page 7 of 12 to be called in for a review hearing much earlier than that, possibly within the

next thirty days, if C.T.’s behavior did not improve.

[16] Indeed, on October 20, 2017, the probation department filed with the juvenile

court a notice it had received that White’s was terminating C.T.’s placement

there and giving the parties and the court thirty days to relocate him.

Appellant’s App. Vol. II p. 192. On October 25, 2017, the probation

department filed a motion for a review hearing; the juvenile court granted the

motion and held the hearing on October 30. At that hearing, the probation

department recommended that C.T. be made a ward of the DOC for placement

and evaluation.

[17] C.T. is correct that there are certain procedures mandated by statute. Before a

periodic review hearing, the probation department is required to prepare a

report on the progress made in implementing the dispositional decree. Ind.

Code § 31-37-21-1(a). Also, if modification of the dispositional decree is

requested, the probation department is required to prepare a modification

report. Id. at -1(c); see also I.C. § 31-37-22-4 (stating that the report shall be

prepared “if the state or any person other than the child or the child’s parent,

guardian, guardian ad litem, or custodian is requesting the modification”).

[18] Here, while the October 30 hearing was styled as a review hearing, in reality, it

was an emergency hearing regarding C.T.’s placement. The probation

department had filed with the juvenile court a notice from White’s that it would

be terminating C.T.’s placement there in thirty days. Therefore, the juvenile

Court of Appeals of Indiana | Memorandum Decision 50A03-1711-JV-2794 | March 28, 2018 Page 8 of 12 court and all parties were aware of the content and purpose of the hearing.

Because of the compressed timeline and the urgency of the problem that needed

to be solved, the parties did not have the luxury of taking the time to prepare

and file reports and recommendations. Instead, everyone did the best they

could by holding a hearing, at which C.T. and his mother were present and

afforded the opportunity to speak and advocate for their preferred outcome; the

probation department was likewise able to present the juvenile court with

options and recommendations. In our view, this process protected the rights of

C.T. even as it dealt with the reality of a need to move quickly. We decline to

reverse on this issue.2

II. DOC Placement [19] Next, C.T. argues that the juvenile court’s decision to place him in the DOC

was erroneous. A juvenile court is afforded wide latitude and great flexibility in

its dealings with juveniles. J.S. v. State, 881 N.E.2d 26, 28 (Ind. Ct. App. 2008).

The specific disposition of a delinquent child is within the sound discretion of

the juvenile court, and we will reverse only if the order is clearly erroneous and

against the logic and effect of the facts and circumstances before the court. Id.

2 C.T. also argues that he received the ineffective assistance of counsel because counsel failed to appear at two review hearings and failed to make an argument at the hearing at which C.T.’s placement was modified to the DOC. Without deciding that, in fact, juveniles in delinquency proceedings are entitled to application of the same assistance of counsel standards as those applied in adult criminal cases, we note that we find no likelihood that if counsel had behaved differently, there would have been a different result. Either way, C.T.’s behavior at White’s left the juvenile court with two options: one that was similar to the placement C.T. had already failed, and the DOC. Therefore, regardless of the vigorousness of counsel’s argument to the court, the result—placement in the DOC—would have been the same.

Court of Appeals of Indiana | Memorandum Decision 50A03-1711-JV-2794 | March 28, 2018 Page 9 of 12 at 28. The court’s discretion is subject to the statutory considerations of the

child, the safety of the community, and the policy of favoring the least harsh

disposition. Id.

[20] C.T. directs our attention to evidence in the record that service providers, the

probation officer, C.T. and his mother, and the juvenile court all had concerns

about C.T. being placed in the DOC. And we certainly acknowledge those

concerns, as did the juvenile court. But there was also evidence in the record

that C.T. failed to change his behavior during his placement at White’s, despite

multiple chances and months to do so. His behavior at that facility was so

problematic that it limited the facility’s ability to provide him with effective

treatment. At the hearing, the juvenile court was presented with two options

for C.T. after White’s asked him to leave: either the DOC, which has a highly

effective sex offender program for juveniles, or Oaklawn, which offers a

program that is substantially similar to the one that he failed at White’s. Under

these circumstances, we cannot say that the trial court erred by finding that,

even given its concerns about placing C.T. in the DOC, that program offered

the best option for C.T.’s future rehabilitation.3

3 We also disagree with C.T.’s contention that the juvenile court was more focused on punishment than rehabilitation. The court’s comments about having to earn one’s place in life were directed to C.T.’s behavior at White’s, explaining that because he had behaved so poorly in that facility, he had not shown an ability to behave appropriately at the similar Oaklawn facility. We do not find these comments to be problematic.

Court of Appeals of Indiana | Memorandum Decision 50A03-1711-JV-2794 | March 28, 2018 Page 10 of 12 [21] C.T. also finds fault with the portion of the juvenile court’s order that provides

as follows: “Pursuant to (IC 31-37-19-6) (31-37-19-9) [sic], the Court now

awards wardship of the child to the [DOC] for housing in any correctional

facility for children.” Appellant’s App. Vol. II p. 18. C.T. correctly notes that

Indiana Code section 31-37-19-9, which applies to juveniles who have been

found delinquent for acts that would be murder, kidnapping, rape, criminal

deviate conduct, or certain types of robbery, does not apply to this case. It is

apparent, however, that the order is merely a form order with multiple options

and there was an inadvertent failure to cross out the inapplicable statute. 4

C.T.’s wardship was imposed pursuant to Indiana Code section 31-37-19-6,

which provides that if a child is a delinquent child, the juvenile court may,

among other things, award wardship to the DOC for housing in a correctional

facility for children. I.C. § 31-37-19-6(b)(2)(A). We find no error with respect

to the inadvertent inclusion of the wrong statute (in addition to the right one) in

the order.

[22] C.T. also argues that the order is erroneous because it does not include a time

limit on his wardship with the DOC. In support of this argument, he directs

our attention to the next portion of that same statute, which provides that if a

child is less than seventeen years old, the juvenile court may order

“confinement in a juvenile detention facility” for not more than the lesser of

4 Indeed, the very next line of the order, which is also not marked out, relates to juvenile delinquents who are female. Appellant’s App. Vol. II p. 18.

Court of Appeals of Indiana | Memorandum Decision 50A03-1711-JV-2794 | March 28, 2018 Page 11 of 12 (1) ninety days, or (2) the maximum term of imprisonment that could have been

imposed if the child had been convicted as an adult offender for the act that the

child committed. I.C. § 31-37-19-6(b)(2)(B). That statute does not apply here,

however, because C.T. is not confined in a juvenile detention facility. Instead,

he has been made a ward of the DOC and placed in a correctional facility for

children. Consequently, we decline to reverse on this basis.

[23] The judgment of the juvenile court is affirmed.

Kirsch, J., and Bradford, J., concur.

Court of Appeals of Indiana | Memorandum Decision 50A03-1711-JV-2794 | March 28, 2018 Page 12 of 12