MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                               FILED
this Memorandum Decision shall not be                                     Nov 16 2018, 9:10 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Kimberly A. Jackson                                      Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Angela N. Sanchez
                                                         Lee M. Stoy, Jr.
                                                         Deputy Attorneys General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

A.C.,                                                    November 16, 2018
Appellant-Respondent,                                    Court of Appeals Case No.
                                                         18A-JV-738
        v.                                               Appeal from the Noble Superior
                                                         Court
State of Indiana,                                        The Honorable Robert E. Kirsch,
Appellee-Petitioner.                                     Judge
                                                         Trial Court Cause No.
                                                         57D01-1711-JD-67



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-JV-738 | November 16, 2018                   Page 1 of 11
                               Case Summary and Issues
[1]   A.C. was adjudicated a delinquent child and the juvenile court awarded

      wardship of him to the Indiana Department of Correction (“DOC”). A.C.

      appeals, raising two issues for our review: 1) whether the juvenile court

      committed fundamental error in proceeding to disposition without a

      predispositional report; and 2) whether the juvenile court abused its discretion

      in committing A.C. to the DOC. Concluding no fundamental error occurred

      and that the disposition was not an abuse of discretion, we affirm.



                            Facts and Procedural History
[2]   On September 24, 2016, A.C., who was then sixteen years old, was left in

      charge of his seven-year-old niece, C.A., while her parents went to the store.

      While they were gone, A.C. came into C.A.’s room and began moving his hips

      in front of her face. He then pushed her down on the bed, and while both were

      fully clothed, rubbed his penis on her vagina, attempted to kiss her, and rubbed

      her “bottom” with his hand. Transcript, Volume 2 at 37. C.A. told her mother

      what had happened when she returned, and the family reported the incident to

      police. A.C. is originally from Honduras. He came to the United States in

      August 2016 to live with his mother in Noble County. Neither speaks English.

      A.C. admitted he had been in C.A.’s room to help her find her bookbag and

      that they had fallen onto her bed when they hugged but stated that he got up




      Court of Appeals of Indiana | Memorandum Decision 18A-JV-738 | November 16, 2018   Page 2 of 11
      immediately and denied that he rubbed against her. These events occurred in

      Allen County.1


[3]   At the conclusion of the fact-finding hearing, the Allen Superior Court found

      the State proved beyond a reasonable doubt that A.C. had committed the

      equivalent of child molesting, a Level 4 felony if committed by an adult. The

      Allen Superior Court released A.C. to his mother and by agreement of the

      parties, referred the matter to Noble County for disposition. The fact-finding

      order does not direct preparation of a predispositional report. The Noble

      Superior Court ordered a psychological examination, which showed A.C.

      suffered from Major Depressive Disorder and Schizophrenia with a history of

      auditory and visual hallucinations. The psychologist recommended A.C. be

      placed in a residential treatment program.


[4]   No predispositional report was filed. At the dispositional hearing, the State and

      the juvenile probation officer recommended A.C. be committed to the DOC.

      The Noble Superior Court found that A.C. is at a higher risk of re-offending

      due to the seriousness of the crime and A.C.’s denial of any wrongdoing. The

      court therefore awarded wardship of A.C. to the DOC. A.C. now appeals.



                                 Discussion and Decision


      1
        The delinquency petition was filed in Noble County, which then transferred the case to Allen County
      because the events occurred there. Allen County completed the preliminary inquiry report and conducted the
      initial and fact-finding hearings and then transferred the case back to Noble County for disposition.

      Court of Appeals of Indiana | Memorandum Decision 18A-JV-738 | November 16, 2018              Page 3 of 11
                                  I. Predispositional Report
[5]   A.C. first contends his disposition should be vacated because no

      predispositional report was prepared. A.C. acknowledges he did not object to

      the lack of a predispositional report but alleges the juvenile court committed

      fundamental error in proceeding to disposition without the report.


[6]   In the chapter concerning delinquency factfinding hearings, Indiana Code

      section 31-37-13-2 provides that if a court finds that a child is delinquent, the

      court shall: enter judgment accordingly, order a predispositional report,

      schedule a dispositional hearing, and complete a dual status screening tool. See

      also Ind. Code § 31-37-17-1 (in the chapter concerning predispositional reports,

      stating that upon finding that a child is delinquent, the court shall order a

      probation officer to complete a predispositional report that contains certain

      information).


[7]   There is no question that Allen County, as the factfinding court, did not order a

      predispositional report before it transferred the case to Noble County for

      disposition. And there is no question that Noble County, as the dispositional

      court, also did not order a predispositional report before holding a dispositional

      hearing. See Brief of Appellee at 12 (State conceding that a predispositional

      report was not prepared in this case). A.C. is therefore correct that the

      mandates of the juvenile delinquency statutes were not followed to the letter.

      However, Indiana Code section 31-37-17-6 obligates the court to provide a copy

      of the report to each attorney before the dispositional hearing. Therefore, A.C.


      Court of Appeals of Indiana | Memorandum Decision 18A-JV-738 | November 16, 2018   Page 4 of 11
      had notice that such report was not prepared, but failed to object to proceeding

      with the hearing. Generally, issues raised for the first time on appeal are

      waived for our review. In re K.S., 750 N.E.2d 832, 834 n.1 (Ind. Ct. App. 2001)

      (holding that an allegation of a due process violation raised for the first time on

      appeal was waived). Acknowledging this, A.C. urges us to review this issue for

      fundamental error. “The fundamental error exception is extremely narrow, and

      applies only when the error constitutes a blatant violation of basic principles,

      the harm or potential for harm is substantial, and the resulting error denies the

      defendant fundamental due process.” R.W. v. State, 975 N.E.2d 407, 411 (Ind.

      Ct. App. 2012) (internal quotation marks omitted), trans. denied. Fundamental

      error is defined as an error so prejudicial to the rights of a juvenile that a fair

      hearing is impossible. Id.


[8]   In arguing he was not afforded a fair dispositional hearing, A.C. primarily relies

      on the fact that the Noble County court already had limited information about

      him and his case because it did not conduct the factfinding hearing. The

      juvenile court acknowledged as much when announcing its disposition by

      stating,


              This is a very very difficult case as far as I am concerned. First of
              all is the fact that this Court was not the Court that heard the
              evidence at the fact finding hearing and therefore the Court does
              not have any great knowledge of the offense itself or the act itself
              other than what I can see in the Court file.


      Tr., Vol. 2 at 78.



      Court of Appeals of Indiana | Memorandum Decision 18A-JV-738 | November 16, 2018   Page 5 of 11
[9]    “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) (internal quotation marks omitted). 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.A. v. State, 938 N.E.2d 1272, 1274 (Ind. Ct. App. 2010), trans.

       denied. This includes 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. Id. A.C. was given notice of

       the allegation against him, had counsel and an interpreter, and was afforded an

       evidentiary hearing at which his counsel cross-examined the State’s witnesses

       and he testified on his own behalf. Prior to the dispositional hearing, the Noble

       County court ordered a psychological assessment and A.C.’s counsel provided

       to the court a Case Conference Committee Report from the West Noble School

       Corporation regarding A.C.’s academic performance and educational needs.

       The juvenile probation officer was present at the dispositional hearing and

       testified to the recommendations of the probation department. A.C.’s mother

       also testified.


[10]   Notably, in the adult criminal context, our supreme court has stated that having

       a presentence investigation report considered prior to sentencing “is a privilege

       granted by the legislature, not a fundamental right.” Smith v. State, 432 N.E.2d

       1363, 1373 (Ind. 1982). The purpose of a predispositional report is to provide

       the court the information it needs to fashion an appropriate disposition. Cf.


       Court of Appeals of Indiana | Memorandum Decision 18A-JV-738 | November 16, 2018   Page 6 of 11
Dillard v. State, 827 N.E.2d 570, 576 (Ind. Ct. App. 2005) (discussing

presentence investigation reports), trans. denied. Therefore, a predispositional

report is to include, among other things, a statement of the child’s needs for

care, treatment, rehabilitation, or placement; and a recommendation for the

child’s care, treatment, rehabilitation, or placement. Ind. Code § 31-37-17-

1(a)(1), (2).2 The psychological evaluation addressed A.C.’s needs, and the

probation officer testified at the dispositional hearing regarding the probation

department’s recommendation. It is unclear what additional information the

predispositional report would have been able to provide that would have

assisted the juvenile court. Although we certainly do not excuse the failure of

the juvenile court, the State, the probation department, and even A.C.’s counsel

to assure that a predispositional report was prepared, especially where, as here,

A.C. and his mother are unable to speak English and advocate for A.C.

themselves,3 we cannot say the failure to observe the procedure required by




2
  Subsections (3) and (4) of Indiana Code section 31-37-17-1 are not applicable here because the
recommendation was for A.C. to be placed in a secure detention facility. Subsection (5) requires a statement
of whether the child receives Medicaid. A.C.’s immigration status is unclear, but given his recent
immigration to the United States, it is unlikely that he would be eligible for Medicaid. See 8 U.S.C. § 1613(a)
(stating qualified aliens who enter the United States on or after August 22, 1996 are not eligible for federal
public benefits for a period of five years after entry).
3
  We acknowledge that in Mejia v. State, 702 N.E.2d 794, 798 (Ind. Ct. App. 1998), a panel of this court
determined that because the trial court’s sentencing of an adult defendant did not comply with statutory
requirements to have a written presentence report prepared by a probation officer and provided to the
defendant prior to sentencing, the case must be remanded for a new sentencing hearing to be conducted in
compliance with the statutes. One of the statutes in question provides that “a defendant convicted of a felony
may not be sentenced before a written presentence report is prepared by a probation officer and considered by
the sentencing court.” Ind. Code § 35-38-1-8(a) (emphasis added). Similar language used to exist regarding
juvenile cases but no longer does. See Howard v. State, 175 Ind. App. 575, 372 N.E.2d 1237, 1240 n.1 (1978)
(quoting now-repealed Indiana Code section 33-12-2-14: “No hearing concerning delinquent children . . .
shall be finally disposed of before a written prehearing investigation report, prepared by a probation officer, is

Court of Appeals of Indiana | Memorandum Decision 18A-JV-738 | November 16, 2018                     Page 7 of 11
       statute rises to the level of fundamental error because the dictates of due process

       were followed and A.C. was afforded a fundamentally fair proceeding.


                                               II. Disposition
[11]   A.C. also contends the juvenile court abused its discretion in ordering him to be

       committed to the DOC. When announcing its disposition, the juvenile court

       explained,


                [T]he options available to the Court at this point in time are
                commitment to the [DOC] for placement at the Indiana Boy’s
                [sic] School, a residential placement, or probation[.] . . . [A.C.] is
                almost 18, he will be 18 . . . basically a month from now . . . .
                [T]he Court has the ability to exercise jurisdiction until [A.C.] is
                21 years of age. That is true. However, as I think we all know
                the Court’s ability to effectively assert that jurisdiction . . . after
                age 18 it just almost goes away. . . . So, even though the Court
                can exercise jurisdiction until age 21, it really doesn’t offer the
                Court much or many alternatives. You know, the residential
                placement is probably not a viable alternative for many reasons,
                so that if we eliminate the residential placement we are with [sic]
                between probation and a commitment to the [DOC]. Probation
                we have an individual who denies his culpability, given his
                strenuous denial of his culpability, . . . sex offender treatment as
                [the psychologist] pointed out in his report will probably be
                ineffective. We have the language barrier or problem which
                although not [A.C.’s] fault necessarily, still it is a complicating
                situation, and the Court recognizes the language barrier is
                applicable to the [DOC]. . . . Whether it be language, whether it
                be psychological issues, whether it be sex offense issues, I mean I




       presented to and considered by the hearing judge.”)). The statutes as well as the circumstances here are
       sufficiently distinguishable that we are not compelled to follow Mejia in this case.

       Court of Appeals of Indiana | Memorandum Decision 18A-JV-738 | November 16, 2018                 Page 8 of 11
               have to work on the assumption that [the DOC] can provide the
               necessary services for [A.C.]. . . . [B]etween residential placement
               and the [DOC], I consider the [DOC] to be rehabilitative. . . .
               [T]he practicality of the matter is the placement at the [DOC]
               would probably be a shorter term placement, undoubtedly a
               shorter term placement than residential treatment would be. . . .
               [G]iven the options I have available to me which are not the
               greatest[, g]iven his age, given the issues raised by [the
               psychologist], I think that placement at the [DOC] or placement
               in the Indiana Boys School is the most reasonable option
               available to the Court. So that will be the Court’s order.


       Tr., Vol. 2 at 78-81.


[12]   A.C. argues the juvenile court based its disposition on the erroneous belief that

       A.C.’s age and inability to speak English deprived the court of any viable

       alternatives other than commitment to the DOC. He urges us to reverse and

       impose a less restrictive sanction, preferably probation to be served while in his

       mother’s custody.


[13]   The juvenile court is accorded “wide latitude and great flexibility in dealing

       with juveniles[.]” C.T.S. v. State, 781 N.E.2d 1193, 1203 (Ind. Ct. App. 2003),

       trans. denied. The goal is to rehabilitate rather than punish the juvenile offender.

       Id. The specific disposition of a delinquent child is within the juvenile court’s

       discretion, guided by the following considerations: the safety of the

       community, the child’s best interests and freedom, the least restrictive

       alternative, family autonomy and life, and the freedom and opportunity for

       participation of the parent, guardian, or custodian. K.S. v. State, 849 N.E.2d

       538, 544 (Ind. 2006). We reverse only for an abuse of discretion, that is, a

       Court of Appeals of Indiana | Memorandum Decision 18A-JV-738 | November 16, 2018   Page 9 of 11
       decision that 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. Id.


[14]   The law requires only that the disposition selected be in the least restrictive

       setting that is “consistent with the safety of the community and the best interest

       of the child[.]” Ind. Code § 31-37-18-6. After considering probation and

       residential placement, the juvenile court determined that because of the range of

       options available to address A.C.’s specific needs and unique circumstances

       (mental health treatment, language assistance, and sex offender treatment),

       commitment to the DOC was in A.C.’s best interest. Even if options less harsh

       than commitment to an institution are available, there are still times when

       commitment to a suitable institution is in the best interest of the juvenile and of

       society. D.S. v. State, 829 N.E.2d 1081, 1085 (Ind. Ct. App. 2005). Such is the

       case here. Although A.C. had not previously been in trouble in the United

       States, the juvenile court determined, based on a number of factors including

       A.C.’s age; his personal characteristics including the language barrier; and what

       the court considered the most rehabilitative, shortest-term option, that

       commitment to the DOC was the appropriate disposition. See B.K.C. v. State,

       781 N.E.2d 1157, 1172 (Ind. Ct. App. 2003) (noting there are instances where a

       short term of confinement “may be one of the most effective rehabilitative

       techniques available[,]” as the first exposure to the consequences of continuing

       to break the law may compel a juvenile to “readjust his values and priorities in




       Court of Appeals of Indiana | Memorandum Decision 18A-JV-738 | November 16, 2018   Page 10 of 11
       life”). We cannot say the juvenile court’s dispositional order was an abuse of

       discretion.



                                               Conclusion
[15]   Because A.C. received a fair hearing, he was not denied due process and cannot

       demonstrate fundamental error in the failure to prepare a predispositional

       report. The juvenile court’s decision to commit A.C. to the DOC was not an

       abuse of discretion. The judgment of the juvenile court is therefore affirmed.


[16]   Affirmed.


       Baker, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-JV-738 | November 16, 2018   Page 11 of 11
