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                       Mar 22 2013, 8:45 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT:                           ATTORNEYS FOR APPELLEE:

ELLEN M. O’CONNOR                                 GREGORY F. ZOELLER
Marion County Public Defender Agency              Attorney General of Indiana
Indianapolis, Indiana
                                                  CHANDRA K. HEIN
                                                  Deputy Attorney General
                                                  Indianapolis, Indiana




                               IN THE
                     COURT OF APPEALS OF INDIANA

C.M.,                                             )
                                                  )
        Appellant-Defendant,                      )
                                                  )
               vs.                                )      No. 49A02-1209-JV-757
                                                  )
STATE OF INDIANA,                                 )
                                                  )
        Appellee-Plaintiff.                       )


                     APPEAL FROM THE MARION SUPERIOR COURT
                         The Honorable Gary Chavers, Magistrate
                             Cause No. 49D09-1010-JD-2878



                                        March 22, 2013


                 MEMORANDUM DECISION - NOT FOR PUBLICATION


NAJAM, Judge
                            STATEMENT OF THE CASE

      C.M. appeals the trial court’s order finding him in indirect contempt of court.

C.M. raises a single issue for our review, which we restate as whether the trial court

abused its discretion when it found C.M. in contempt. We affirm.

                      FACTS AND PROCEDURAL HISTORY

      On December 22, 2010, C.M. pleaded guilty to child molesting, as a Class B

felony if committed by an adult. The juvenile court accepted C.M.’s guilty plea and

ordered him to serve time in the Department of Correction. Upon his release in August

of 2011, the juvenile court resumed jurisdiction over C.M. and ordered him to serve time

on probation. Along with other conditions of C.M.’s probation, the trial court restricted

where C.M. could go, required C.M. to participate in drug screens, and required C.M. to

continue sex offender treatment.

      On April 16, 2012, the probation department filed a petition for modification of

the conditions of C.M.’s probation. In its petition, the probation department alleged that

C.M had failed to report for a drug test on April 13. The probation department filed a

second petition for modification on June 7, in which the department alleged that C.M.

had failed to report for a drug test on May 25 and also had been unsuccessfully

discharged from Outpatient Sex Offender Counseling. The department filed a third

petition on June 25, alleging that C.M. had failed to provide a sample for drug screening

on June 8 and that he had “failed to comply with Independent Living through The

Villages.” Appellant’s App. at 188.




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       At a hearing on July 13, C.M. admitted to the probation department’s allegations

in its June 25 petition. C.M. informed the court that he “simply didn’t have the money”

to pay for the drug screen. Transcript at 5. In exchange for this admission, the probation

department moved to dismiss the April 16 and June 7 petitions. The court granted the

department’s motion and ordered C.M. to wear a GPS monitoring device.

       On August 3, the probation department filed a fourth petition for modification, in

which the department alleged that C.M. had failed to provide a sample for drug screening

on July 31 and failed to report for a drug test on August 2. The department also alleged

that C.M. had left his home on July 24 and 25 without authorization.

       At a hearing on August 8, C.M. admitted the alleged violations, again stating that

he could not pay for the drug tests and adding that he did not have a means of getting to

the test site. C.M. also stated that he had left his home without authorization to fill out

job applications. The court noted that C.M. had failed a drug test that had been taken the

day before the hearing. Id. at 15. The court ordered C.M. detained pending disposition

on the petition, which the court scheduled for August 24.

       On August 15, the court issued a Rule to Show Cause Order informing C.M. that

he “may be held in indirect contempt of Court for failing to follow Court orders.”

Appellant’s App. at 212. The court consolidated its hearing on the Rule to Show Cause

with the dispositional hearing on the probation department’s August 3 petition for

modification.

       At the ensuing hearing on August 24, C.M. argued that he was not “willfully

disobedient” and should not be held in contempt because he could not afford to pay for


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the drug screens and his unauthorized leaves were to apply for jobs “to complete another

court order.” Transcript at 23. The court found C.M. in indirect contempt of court. In

particular, the court found that C.M.

        admitted to not following the Court orders by failing to provide a sample to
        the drug lab on June 8, 2012[,] and July 31, 2012[,] for failing to comply
        with the terms of Independent Living through the Villages, having
        unauthorized leaves while on electronic monitoring on July 24, 2012, and
        failing to report for his scheduled drug screen on August 2, 2012.

Appellant’s App. at 221. The court further ordered that C.M. could “purge himself of the

contempt . . . by following all Court orders until his next hearing on October 24, 2012.”1

Id. This appeal ensued.

                                 DISCUSSION AND DECISION

        C.M. asserts that the juvenile court abused its discretion when it found him to be

in indirect contempt of court. “In order to support a finding of indirect contempt, it must

be shown that a party willfully disobeyed a lawfully entered court order of which the

offender had notice.” Rendon v. Rendon, 692 N.E.2d 889, 896 (Ind. Ct. App. 1998)

(citing Mitchell v. Stevenson, 677 N.E.2d 551, 558 (Ind. Ct. App. 1997), trans. denied).

“When a person fails to abide by a court’s order, that person bears the burden of showing

that the violation was not willful.” Meyer v. Wolvos, 707 N.E.2d 1029, 1031 (Ind. Ct.

App. 1999). Whether a party is in contempt of court is a matter committed to the trial

court’s discretion. In re Paternity of M.P.M.W., 908 N.E.2d 1205, 1209 (Ind. Ct. App.

2009). “An abuse of discretion ‘occurs only when a trial court’s decision is against the


        1
          Generally, an opportunity for the recalcitrant party to purge himself of the contempt is required
by law. See K.L.N. v. State, 881 N.E.2d 39, 41 (Ind. Ct. App. 2008). The record does not reflect that the
hearing originally scheduled for October 24, 2012, has taken place, and neither party discusses any such
hearing on appeal.
                                                    4
logic and effect of the facts and circumstances before it.’” Aaron v. Scott, 851 N.E.2d

309, 314 (Ind. Ct. App. 2006) (quoting Harlan Bakeries, Inc. v. Muncy, 835 N.E.2d 1018,

1040 (Ind. Ct. App. 2005)).

       C.M. first asserts that the trial court’s Rule to Show Cause Order was defective. It

appears that C.M.’s argument on this issue is that the court’s order was erroneously

premised on the dismissed April 16 and June 7 petitions for modification. We cannot

agree with C.M.’s reading of the Rule to Show Cause Order. In it, the juvenile court

mentions three of the petitions for modification that had been filed, including the

dismissed petitions, but the court then specifically references C.M.’s July 13 and August

8 admissions as the basis for the order. This argument is without merit.

       C.M. next asserts that “[t]he court failed to ascertain C.M.’s intent . . . . C.M.

lacked a willful intent to hinder the Juvenile Court’s Orders.” Appellant’s Br. at 14.

C.M. goes on to emphasize that he violated the court’s orders to participate in drug

testing only because he could not afford them and that he violated the court’s restrictions

on his movement only because he was applying for employment as required by another

condition of his probation.

       C.M.’s argument ignores the record as a whole. While he has proffered rationales

for violating two of the court’s orders—which we assume for the sake of argument to be

accurate—at no point before the juvenile court or on appeal has he proffered any

explanation for his admission that he “fail[ed] to comply with the terms of Independent

Living through the Villages.” See Appellant’s App. at 221. The juvenile court expressly

relied on this admission when it found C.M. in contempt. Further, we note that C.M.


                                            5
likewise offers no explanation for the facts that he admitted he failed a drug test the day

before his August 8 hearing, and that C.M.’s August 8 admissions were the basis for the

court’s Rule to Show Cause Order. C.M. bore the burden of showing that his violations

were not willful. See Meyer, 707 N.E.2d at 1031. He did not meet his burden, and he

cannot demonstrate that the court abused its discretion when it found him in contempt.

       Finally, C.M. argues that the juvenile court abused its discretion when it

“impose[d] purge conditions that cannot be satisfied.” Appellant’s Br. at 16. This

argument appears to be premised on the hypothetical scenario that C.M. will remain

unemployed, indigent, and without access to transportation to apply for jobs. We will not

say the trial court abused its discretion based on a hypothetical. See, e.g., In re Paternity

of M.G.S., 756 N.E.2d 990, 1004 (Ind. Ct. App. 2001) (noting that “problems that are

abstract or hypothetical” are “not ripe for judicial review”), trans. denied.

       Affirmed.

FRIEDLANDER, J., and BRADFORD, J., concur.




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