MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                             Nov 13 2019, 9:03 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke                                    Curtis T. Hill, Jr.
Wieneke Law Office, LLC                                  Attorney General
Brooklyn, Indiana
                                                         Evan Matthew Comer
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

C.W.,                                                    November 13, 2019
Appellant-Respondent,                                    Court of Appeals Case No.
                                                         19A-JV-1077
        v.                                               Appeal from the Vigo Circuit
                                                         Court
State of Indiana,                                        The Honorable Sarah K. Mullican,
Appellee-Petitioner                                      Judge
                                                         The Honorable Daniel W. Kelly,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         84C01-1902-JD-163



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-JV-1077 | November 13, 2019              Page 1 of 16
                                             Case Summary
[1]   C.W. appeals the order (“the Modified Dispositional Order”) modifying his

      disposition from strict formal probation to commitment to the wardship of the

      Department of Correction (“DOC”) for placement at the Indiana Boys School

      following his adjudication as a delinquent child for committing an act that

      would be level 6 felony resisting law enforcement if committed by an adult.

      C.W. argues that he was denied due process when the trial court announced his

      modified disposition without him being be present, that the Modified

      Dispositional Order does not contain the required statutory findings in support

      of modification, and that the trial court abused its discretion in modifying his

      disposition. We conclude that C.W. waived his due process claim, that any

      error regarding the findings in support of modification does not amount to

      reversible error, and that the trial court did not abuse its discretion in modifying

      his disposition. Therefore, we affirm.


                                 Facts and Procedural History
[2]   C.W. was born in April 2003. All events relevant to this appeal occurred in

      2019. On January 29, police responded to a report of a domestic disturbance at

      the residence where C.W. lived with his mother, brother, and stepfather. C.W.

      was heavily intoxicated from ingesting Xanax-laced gummy bears. Tr. Vol. 2 at

      8, 14. Police attempted to place C.W. under arrest, but he resisted. He pulled

      away, and police took him to the ground. While police attempted to handcuff

      C.W., he continued resisting by kicking his legs, and one of the officers

      involved suffered a broken fibula.

      Court of Appeals of Indiana | Memorandum Decision 19A-JV-1077 | November 13, 2019   Page 2 of 16
[3]   On February 5, the State filed a petition alleging that C.W. was a delinquent

      child for committing the following acts: Count 1, level 6 felony resisting law

      enforcement if committed by an adult; Count 2, class A misdemeanor domestic

      battery if committed by an adult; and Count 3, class A misdemeanor resisting

      law enforcement if committed by an adult. C.W. was held in the Vigo County

      Juvenile Center. A hearing on the delinquency petition was held on February 7

      and 14. C.W. did not contest Count 1, and he and his mother acknowledged

      that he had a serious substance abuse problem. Id. at 15-17. Mother testified

      that C.W. had been so intoxicated the night he was arrested that he was

      foaming at the mouth and that the police had to carry him to the cell. Id. at 15-

      16. The trial court entered a true finding on Count 1, dismissed the remaining

      counts, set a dispositional hearing in thirty days so that C.W. could undergo a

      drug assessment, and released C.W. from detention.


[4]   On March 7, the probation department submitted its predispositional report, in

      which it recommended a nine-month commitment to Indiana Boys School

      suspended to strict formal probation and that C.W. undergo a drug assessment

      and follow any recommendations. Appellant’s App. Vol. 2 at 30. On March

      14, the trial court held a dispositional hearing, at which C.W. appeared with his

      mother and defense counsel. C.W.’s probation officer, Tamara Carter,

      informed the court that she had contacted C.W.’s school and spoken with the

      school dean, who confirmed that C.W. had enrolled in school on February 25

      but was present for only part of a day on February 26, and missed school on

      February 27 and 28. The trial court adopted the probation department’s


      Court of Appeals of Indiana | Memorandum Decision 19A-JV-1077 | November 13, 2019   Page 3 of 16
      recommendations and placed C.W. on nine months’ strict formal probation.

      The court also ordered him to undergo a drug assessment and follow any

      recommendations, to submit to random drug screens, to enroll in and attend

      school, and to perform twenty hours of community service. Id. at 31. At the

      conclusion of the hearing, Carter administered a drug screen to C.W. Initially,

      C.W. told Carter that he did not want to take a drug screen. Tr. Vol. 2 at 29.

      He eventually submitted to the drug screen but told Carter that he was not

      going to pass. Id. He left the probation office angry. Id. at 31. C.W. did not

      attend school after the hearing. Id.


[5]   On March 26, at about 4:00 a.m., police were dispatched to the intersection of

      Ninth and Washington Streets in Vigo County to investigate a report of an

      intoxicated person. Id. at 29. The police first encountered C.W.’s mother, who

      informed them that C.W. had run away from home and was high on Xanax-

      laced gummy bears. Id. The police found C.W. walking north on Ninth Street.

      He was stumbling on the sidewalk, was disoriented and confused, and was

      drooling from his mouth. Id. at 29-30. The police arrested C.W. for public

      intoxication and transported him to a hospital for evaluation and then to the

      Vigo County Juvenile Center. That same day, the probation department filed a

      modification report, recommending that the suspension of C.W.’s commitment

      to the wardship of the DOC for placement at Indiana Boys School be lifted.

      Appellant’s App. Vol. 2 at 36.


[6]   On April 4, the trial court conducted a modification hearing, at which C.W.

      appeared with his mother and defense counsel. The court heard testimony from

      Court of Appeals of Indiana | Memorandum Decision 19A-JV-1077 | November 13, 2019   Page 4 of 16
      Carter and C.W.’s mother. C.W.’s mother testified that C.W. had an

      appointment for a drug assessment on April 10 and that she intended to enroll

      C.W. in GED classes. The trial court ordered C.W. to undergo the drug

      assessment and set a hearing for April 11. The trial court also issued an order

      concluding that “good cause” to grant the modification petition existed based

      on the following:


              [C.W.] was placed on probation on March 14, 2019 on charges
              of Resisting Law Enforcement and Domestic Battery. [C.W.]
              ran away from home and mother alleged he was high on gummy
              bears laced with Xanax. [C.W.] was then arrested on March 26,
              2019 for public intoxication. [C.W.] has been truant from school
              since March 14, 2019.


      Id. at 38.


[7]   On April 11, the trial court reconvened the modification hearing. C.W.

      appeared with his mother and defense counsel. Carter confirmed that C.W.

      had taken the drug assessment and that she had received seven pages of the

      evaluation, but it did not include a recommendation. Carter told the court that

      she still recommended that C.W.’s suspension be lifted and that he be placed at

      Indiana Boys School, where he could receive drug treatment, counseling, and

      education. Tr. Vol. 2 at 44. Carter opined that C.W. would not otherwise

      follow through with schooling, drug treatment, or counseling. Id. She

      informed the court that C.W. had not attended school since the dispositional

      hearing, and that he had not started on the required community service. C.W.’s

      mother testified that the recommendations from C.W.’s drug assessment were

      Court of Appeals of Indiana | Memorandum Decision 19A-JV-1077 | November 13, 2019   Page 5 of 16
      that he attend three classes a week and submit to random drug screens. Id. at

      48. The trial court asked the State if it had any objection to C.W. filing the

      written recommendations from the drug assessment, and the State agreed that

      the court should have that information. Id. at 55. The court informed the

      parties that because it did not have all the information it needed and wanted to

      look at C.W.’s history in more detail, it would take the matter under

      advisement to allow C.W. to file the written recommendations from the drug

      assessment. Id. at 55. The court further explained that it would “get

      something out on this really quickly after that.” Id. Mother asked whether she

      would have to come back because her work schedule would make that difficult.

      Id. at 56. The trial court informed mother that she would not have to return to

      court.


[8]   On April 15, the trial court entered the Modified Dispositional Order with the

      following findings:


               [C.W.] has an extensive history with the Court beginning with
               his first adjudication in September of 2015. Despite a prior
               placement at ResCare, [C.W.] continues to break the law. He
               was placed on probation in this cause on March 14, 2019, and at
               that time was given a suspended commitment to the [DOC].
               Since being placed on probation, [C.W.] has not attended school
               and on March 26, 2019, [C.W.] was arrested at 4:00 a.m. for
               public intoxication. Due to [C.W.’s] flagrant disregard for this
               Court’s orders, the Court finds no alternative other than to lift the
               suspension and have [C.W.] committed to [DOC].


               ….


      Court of Appeals of Indiana | Memorandum Decision 19A-JV-1077 | November 13, 2019   Page 6 of 16
               The statements in the Probation Officer’s Report and all
               attachments are adopted as findings, including any and all
               statements of reasonable efforts to provide services, and are
               incorporated by reference herein.


      Appealed Order at 1. This appeal ensued.


                                        Discussion and Decision

                Section 1 – C.W. has waived his due process claim.
[9]   Although, C.W. was present at all the hearings held in his juvenile proceedings,

      he argues that he was denied due process when the trial court announced his

      modified disposition without him being present. However, C.W. fails to

      provide the standard for determining what process is due to a child in a

      delinquency proceeding or present his argument tailored to that standard.1

      Accordingly, he has waived this claim due to failure to present a cogent

      argument. See Ind. Appellate Rule 46(A)(8)(a) (requiring each issue presented

      by appellant to be “supported by cogent reasoning” and each contention to be

      supported by “citations to the authorities, statutes, and the appendix or parts of

      the Record on Appeal relied on.”); Smith v. State, 822 N.E.2d 193, 202-03 (Ind.




      1
         “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 (Ind. Ct. App. 2012). “A juvenile charged with
      delinquency is entitled to the ‘common law jurisprudential principles which experience and reason have
      shown are necessary to give the accused the essence of a fair trial.’” K.S. v. State, 114 N.E.3d 849, 853 (Ind.
      Ct. App. 2018) (quoting K.A. v. State, 938 N.E.2d 1272, 1274 (Ind. Ct. App. 2010), trans. denied, (2011)), trans.
      denied (2019). “These principles include the right to have a competency determination, the right to notice of
      the charges, the right to counsel, the privilege against self-incrimination, and the right to confront witnesses,
      and, in the case of a modification, the right to an evidentiary hearing.” Id.

      Court of Appeals of Indiana | Memorandum Decision 19A-JV-1077 | November 13, 2019                   Page 7 of 16
       Ct. App. 2005) (“Generally, a party waives any issue raised on appeal where

       the party fails to develop a cogent argument or provide adequate citation to

       authority and portions of the record.”), trans. denied.


           Section 2 – Any error regarding the trial court’s findings
         supporting the modification of C.W.’s disposition does not
                         amount to reversible error.
[10]   C.W. contends that the trial court failed to make the necessary findings in

       violation of Indiana law. In addressing his contention, we observe that when

       issuing an order modifying a juvenile disposition, the court must comply with

       the requirements governing dispositional orders. See Ind. Code § 31-37-22-3(c).

       Indiana Code Section 31-37-18-9(a) requires a dispositional decree to include

       “written findings and conclusions,” as well as “specific findings” as to


               (1) The needs of the child for care, treatment, rehabilitation, or
               placement.


               (2) The need for participation by the parent, guardian, or
               custodian in the plan of care for the child.


               (3) Efforts made, if the child is removed from the child’s parent,
               guardian, or custodian, to:


                    (A) prevent the child’s removal from; or


                    (B) reunite the child with;


                    The child’s parent, guardian, or custodian.


       Court of Appeals of Indiana | Memorandum Decision 19A-JV-1077 | November 13, 2019   Page 8 of 16
                (4) Family services that were offered and provided to:


                     (A) the child; or


                     (B) the child’s parent, guardian, or custodian.


                (5) The court’s reasons for the disposition.


                (6) Whether the child is a dual status child under IC 31-41.[2]


       The statute allows the trial court to “incorporate a finding or conclusion from a

       predispositional report as a written finding or conclusion upon the record in the

       court’s dispositional decree.” Ind. Code § 31-37-18-9(c).


[11]   C.W. asserts that “[n]one of the factual findings required by statute were made,

       which makes meaningful review on appeal impossible.” Appellant’s Br. at 11.

       We disagree. The Modified Dispositional Order found that C.W. had a long

       history with the trial court beginning in September 2015; C.W. had a prior

       placement at ResCare; just twelve days after being placed on probation for the

       current delinquency adjudication, C.W. was arrested at 4:00 a.m. for public

       intoxication; C.W. had not attended school since being placed on probation;

       and due to C.W.’s “flagrant disregard” for the court’s order, the court had no

       alternative but to commit him to the wardship of the DOC. Appealed Order at




       2
         Broadly speaking, Indiana Code Section 31-41-1-2(1) defines a dual status child as a child who is alleged to
       be or is presently adjudicated to be a delinquent child and who is alleged to be or is adjudicated to be a child
       in need of services.

       Court of Appeals of Indiana | Memorandum Decision 19A-JV-1077 | November 13, 2019                   Page 9 of 16
       1. The Modified Dispositional Order also adopted as findings the statements in

       the probation officer’s report. C.W.’s probation officer prepared two reports,

       the predispositional report and the modification report, and therefore we

       consider statements in both reports. From these reports, we learn that C.W.

       lived with his mother, brother, and stepfather, that Mother has a prior criminal

       history and was unemployed, and that C.W.’s biological father was

       incarcerated.3 Appellant’s App. Vol. 2 at 26. C.W. summarized his family life

       as “not so good.” Id. at 27.


[12]   The reports also indicate that C.W. had previously been put on strict formal

       probation, which had to be repeatedly modified, including three extensions and

       detention in the Vigo County Juvenile Center. Id. at 24-25, 32-33. C.W. was

       offered home-based services, a psychological evaluation, and placement at

       ResCare as recommended by the evaluation. Id. at 30. C.W. admitted to

       carrying a handgun without a license, which he committed while staying with

       his mother on a pass from his placement at ResCare. Id. at 25, 34. In addition,

       the report indicates that C.W. was being disruptive at school, and after he

       changed schools, he was expelled from the new school because he was

       disruptive and combative. Id. at 24-25, 33. Although he had been enrolled in

       another school, he had not attended since his court hearing. Id. at 35. The




       3
        Although the probation officer’s report indicates that Mother is unemployed, she stated that she had a
       “work schedule” at the April 11 hearing. Tr. Vol. 2 at 56.

       Court of Appeals of Indiana | Memorandum Decision 19A-JV-1077 | November 13, 2019              Page 10 of 16
       report states that C.W. hangs out with known juvenile delinquents, is a

       follower, and “doesn’t seem like he wants to do the right thing.” Id. at 34, 36.


[13]   Despite C.W.’s protestations to the contrary, the findings in the Modified

       Dispositional Order and the probation department’s reports provide

       information relevant to C.W.’s needs for care, treatment, rehabilitation, or

       placement, the need for participation by C.W.’s parents in his care, the family

       services that were offered, and the court’s reasons for the disposition, and they

       are sufficient to facilitate meaningful appellate review. Although there is no

       finding specifically touching on whether C.W. is a dual status child, C.W. had

       notice of the allegations warranting modification, there was an evidentiary

       hearing at which he, his mother, and his counsel were present, and he directs us

       to no evidence in the record that would clearly support a finding that he was a

       dual status child. Under very similar circumstances, we have found that the

       failure to include a specific finding regarding dual status did not amount to

       reversible error. See K.S. v. State, 114 N.E.3d 849, 853-54 (Ind. Ct. App. 2018)

       (declining to reverse modified dispositional order on the grounds that court did

       not include finding on whether juvenile was a dual status child where juvenile

       was given notice of charges, had counsel, and was afforded an evidentiary

       hearing at which no evidence was offered that would support dual status

       finding), trans. denied (2019). Accordingly, we find no reversible error regarding

       the trial court’s findings supporting the modification of C.W.’s disposition.




       Court of Appeals of Indiana | Memorandum Decision 19A-JV-1077 | November 13, 2019   Page 11 of 16
            Section 3 – The trial court did not abuse its discretion in
                         modifying C.W.’s disposition.
[14]   Finally, C.W. asserts that the trial court abused its discretion in lifting his

       suspension and committing him to the wardship of the DOC when there were

       less restrictive dispositions available. In addressing this claim, we observe that

       the trial court “has wide latitude and great flexibility in its dealings with

       juveniles.” M.T., 928 N.E.2d 266, 268 (Ind. Ct. App. 2010), trans. denied. The

       choice of the specific disposition of a juvenile adjudicated a delinquent child

       will only be reversed if the [trial] court abuses its discretion. J.S. v. State, 881

       N.E.2d 26, 28 (Ind. Ct. App. 2008). “An abuse of discretion occurs when the

       [trial] court’s action is clearly erroneous and against the logic and effect of the

       facts and circumstances before the court, or the reasonable, probable, and actual

       inferences that can be drawn therefrom.” Id.


[15]   “[T]he goal of the juvenile process is rehabilitation so that the youth will not

       become a criminal as an adult.” R.H. v. State, 937 N.E.2d 386, 388 (Ind. Ct.

       App. 2010). The policy of this state and the operation and implementation of

       our juvenile justice system is to “ensure that children within the juvenile justice

       system are treated as persons in need of care, protection, treatment, and

       rehabilitation.” Ind. Code § 31-10-2-1(5). “Thus, the [trial] court is provided

       with a myriad of dispositional alternatives to permit the court to find the

       disposition that best fits the unique and varying circumstances of each child’s

       problems.” A.A.Q. v. State, 958 N.E.2d 808, 813-14 (Ind. Ct. App. 2011).




       Court of Appeals of Indiana | Memorandum Decision 19A-JV-1077 | November 13, 2019   Page 12 of 16
[16]   Indiana Code Section 31-37-18-6 reads,4


               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.


[17]   C.W. contends that at least two less restrictive, more family-like dispositional

       alternatives were available to the trial court: allow C.W. to return home and

       participate in a structured treatment program and individual counseling or




       4
         C.W. incorrectly cites Indiana Code Section 31-34-19-6, which governs dispositional decrees in proceedings
       involving children in need of services.

       Court of Appeals of Indiana | Memorandum Decision 19A-JV-1077 | November 13, 2019              Page 13 of 16
       allow C.W. to enroll in a residential facility for drug treatment. We note that

       Section 31-37-18-6 requires placement in the least restrictive setting only “[i]f

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

       Thus, the statute recognizes that in certain situations the best interest of the

       child is better served by a more restrictive placement. K.A. v. State, 775 N.E.2d

       382, 386-87 (Ind. Ct. App. 2002), trans. denied. In other words, a more

       restrictive placement may be appropriate because commitment to a public

       institution is in the best interest of both the juvenile and society. D.S. v. State,

       829 N.E.2d 1081, 1085 (Ind. Ct. App. 2005); see also M.R. v. State, 605 N.E.2d

       204, 208 (Ind. Ct. App. 1992) (“There are times in juvenile proceedings when

       the best interest of the juvenile and society require commitment to the Boys

       School.”).


[18]   Here, the evidence shows that C.W. has been adjudicated a delinquent child on

       three separate occasions beginning in 2015 and has two additional pending

       cases. In June 2017, he admitted to possessing a handgun without a license, a

       class A misdemeanor if committed by an adult. Many less restrictive

       rehabilitative services have been offered to C.W., including probation, home-

       based services, and residential care. However, given his repeated disobedience

       of the law, those efforts have apparently failed to produce positive changes in

       his behavior. In addition, his drug use is alarming. Just twelve days after he

       was granted probation, he engaged in the same behavior that led to the current

       adjudication, consuming Xanax-laced gummy bears. The first time he ingested

       them, his mother testified that he was so intoxicated that he was foaming at the


       Court of Appeals of Indiana | Memorandum Decision 19A-JV-1077 | November 13, 2019   Page 14 of 16
       mouth and had to be carried to his cell. Tr. Vol. 2 at 15-16. Mother, the trial

       court, and C.W.’s probation officer later referred to this as a drug overdose. Id.

       at 46-47. The next time, he was picked up on the street at 4:00 a.m., stumbling

       on the sidewalk, disoriented, confused, and drooling from his mouth. Id. at 29-

       30.


[19]   C.W. has been disruptive at school or has simply failed to attend. Thus, he is

       not getting the education he needs. C.W.’s history also shows that his parents

       have been unable to control, let alone improve, his behavior. Based on his

       history with the juvenile justice system and his current behavior, the court

       reasonably determined that a supervised environment offering more intensive

       services is necessary to prevent C.W. from continuing to commit acts that are

       harmful to himself and that pose a danger to the community. Therefore, we

       conclude that the trial court did not abuse its discretion in ordering the

       wardship of C.W. to the DOC. See A.M. v. State, 109 N.E.3d 1034, 1039 (Ind.

       Ct. App. 2018) (concluding that trial court did not abuse its discretion in

       modifying juvenile’s disposition to commitment to the DOC based on his

       lengthy record of criminal and behavioral issues, failure to respond positively to

       less restrictive placements, loss of parental control, and expulsion from school);

       K.A., 775 N.E.2d at 387 (concluding that trial court did not abuse its discretion

       in modifying juvenile’s disposition to commitment to the DOC, where juvenile

       had been given several chances to reform her behavior). Accordingly, we affirm

       the Modified Dispositional Order.




       Court of Appeals of Indiana | Memorandum Decision 19A-JV-1077 | November 13, 2019   Page 15 of 16
[20]   Affirmed.


       Baker, J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-JV-1077 | November 13, 2019   Page 16 of 16
