                                                                             FILED
                                                                        Sep 19 2018, 10:29 am

                                                                             CLERK
                                                                         Indiana Supreme Court
                                                                            Court of Appeals
                                                                              and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Nancy A. McCaslin                                          Curtis T. Hill, Jr.
McCaslin & McCaslin                                        Attorney General of Indiana
Elkhart, Indiana
                                                           Laura R. Anderson
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

C.S., Jr.,                                                 September 19, 2018
Appellant-Respondent,                                      Court of Appeals Case No.
                                                           18A-JV-862
        v.                                                 Appeal from the Elkhart Circuit
                                                           Court
State of Indiana,                                          The Honorable Michael A.
Appellee-Petitioner.                                       Christofeno, Judge
                                                           The Honorable Deborah A.
                                                           Domine, Magistrate
                                                           Trial Court Cause No.
                                                           20C01-1712-JD-612



Friedlander, Senior Judge.



Court of Appeals of Indiana | Opinion 18A-JV-862 | September 19, 2018                            Page 1 of 6
[1]   On December 11, 2017, Elkhart police officers encountered C.S., Jr. after

      responding to a report of gunshots. During this encounter, C.S., Jr. turned his

      back on the officers, reached into his waistband, removed a loaded 9mm

      firearm, and placed the firearm on the ground. The officers found a spent 9mm

      casing and a live 9mm round on the ground nearby.


[2]   On December 18, 2017, the State filed a delinquency petition alleging that C.S.,

      Jr. was delinquent for committing what would be Class A misdemeanor

      dangerous possession of a firearm if committed by an adult. The next day,

      C.S., Jr. admitted to the allegation. The juvenile court adjudicated him

      delinquent and ordered that he be made a temporary ward of the Department of

      Correction (“DOC”) for completion of a diagnostic evaluation. The juvenile

      court further ordered that upon completion of the evaluation, C.S., Jr. would

      return to the juvenile detention center pending an additional hearing regarding

      disposition.


[3]   Residential placement was recommended after completion of the diagnostic

      evaluation. A DOC facility psychologist also completed a psychological

      evaluation and recommended residential placement. In making this

      recommendation, the psychologist noted C.S., Jr.’s previous failures at home-

      based programming. The psychologist opined that C.S., Jr. required more

      structured monitoring than home-based services could provide given his recent

      suicide attempt and “rather violent history.” Appellant’s App. Vol. 2, p. 70.




      Court of Appeals of Indiana | Opinion 18A-JV-862 | September 19, 2018      Page 2 of 6
[4]   In addition to the diagnostic and psychological examinations, the probation

      department considered that, while in the juvenile detention center prior to being

      sent to the DOC for his evaluation, C.S., Jr. had attempted to commit suicide

      and displayed aggressive behavior. It also considered that C.S., Jr. had

      informed a social worker that he hated being in the juvenile detention center

      and was “going to make the staff’s life miserable.” Id. at 48. The social worker

      noted that he believed residential care was the least restrictive option and there

      were few alternatives for C.S., Jr.’s placement. The probation department

      investigated residential placements, ultimately recommending placement in the

      DOC.


[5]   During a March 6, 2018 hearing, the juvenile court heard evidence supporting

      the probation department’s recommended disposition. C.S., Jr. appeared at this

      hearing via video conference from the juvenile detention center. At the end of

      the hearing, the juvenile court committed C.S., Jr. to the DOC.


[6]   C.S., Jr. raises two issues on appeal. First, he argues that the juvenile court

      abused its discretion by committing him to the DOC. Second, he argues that

      the juvenile court erred by having him appear at the March 6, 2018 hearing via

      video conference.


                                              1. Disposition
[7]           The choice of a specific disposition of a juvenile adjudicated a
              delinquent child is within the sound discretion of the juvenile
              court, subject to the statutory considerations of the welfare of the
              child, the community’s safety, and the Indiana Code’s policy of

      Court of Appeals of Indiana | Opinion 18A-JV-862 | September 19, 2018          Page 3 of 6
              favoring the least harsh disposition. A juvenile disposition will
              not be reversed absent a showing of an abuse of discretion. 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 deductions to be drawn therefrom.


      E.H. v. State, 764 N.E.2d 681, 684 (Ind. Ct. App. 2002) (internal citations

      omitted), trans. denied.


[8]   Generally, Indiana Code section 31-37-18-6(1)(A) (1997) requires that a

      juvenile court enter a dispositional decree that is “in the least restrictive (most

      family like) and most appropriate setting available.” Section 31-37-18-6,

      however, “requires placement in the least restrictive setting only ‘if consistent

      with the safety of the community and the best interest of the child.’” J.S. v.

      State, 881 N.E.2d 26, 29 (Ind. Ct. App. 2008) (quoting Ind. Code § 31-37-18-6)

      (emphasis added). “Thus, the statute recognizes that in certain situations the

      best interest of the child is better served by a more restrictive placement.” J.S.,

      881 N.E.2d at 29.


[9]   In this case, the team that completed C.S., Jr.’s diagnostic evaluation, a DOC

      psychologist, and a social worker all recommended residential placement. In

      addition to evidence that C.S., Jr. was found in possession of a loaded firearm,

      the recommendations were based, at least in part, on evidence indicating that

      C.S., Jr. had displayed a pattern of suicidal tendencies and a history of violent

      and delinquent behavior. He had frequently abused drugs and alcohol and had

      been suspended from school more than twenty times and expelled twice. He

      Court of Appeals of Indiana | Opinion 18A-JV-862 | September 19, 2018         Page 4 of 6
       had failed to positively respond to prior opportunities for rehabilitation. He had

       also displayed a general lack of respect for authority figures.


[10]   The recommendations of the service providers, coupled with the probation

       department’s opinion that C.S., Jr. was too great a risk for community

       placement, support the juvenile court’s disposition. As such, we conclude that

       the juvenile court did not abuse its discretion in committing C.S., Jr. to the

       DOC.


                         2. Appearance Via Video Conference
[11]           The nature of the juvenile process is rehabilitation and aid to the
               juvenile to direct his behavior so that he will not later become a
               criminal. For this reason the statutory scheme of dealing with
               minors is vastly different than that directed to an adult who
               commits a crime. Juvenile judges have a variety of placement
               choices for juveniles who have delinquency problems…. None of
               these commitments are considered sentences.


       Jordan v. State, 512 N.E.2d 407, 408 (Ind. 1987) (emphasis added).


[12]   C.S., Jr. argues that the juvenile court erred by having him appear at the March

       6, 2018 hearing via video conference because he did not sign a written waiver of

       his right to appear at the hearing in person. In support, he cites to the Indiana

       Supreme Court’s opinion in Hawkins v. State, which establishes that a criminal

       defendant has a right to be “personally present” at sentencing and that a trial

       court “may conduct a sentencing hearing at which the defendant appears by

       video, but only after obtaining a written waiver of his right to be present and the

       consent of the prosecution.” 982 N.E.2d 997, 1002-03 (Ind. 2013) (discussing
       Court of Appeals of Indiana | Opinion 18A-JV-862 | September 19, 2018         Page 5 of 6
       Ind. Code § 35-38-1-4(a) & Ind. Admin. R. 14(A)(2)(c)). C.S., Jr.’s reliance on

       Hawkins, however, is misplaced.


[13]   Unlike the defendant in Hawkins, C.S., Jr. was not a criminal defendant

       appearing before the court for a sentencing hearing. C.S., Jr. was a delinquent

       child appearing before the juvenile court for a modification hearing. Given the

       Indiana Supreme Court’s express statement that commitment of a delinquent

       child is not considered a sentence, Jordan, 512 N.E.2d at 408, we conclude that

       the rules relating to the sentencing of criminal offenders do not apply. Rather,

       we look to the statutes relating to juvenile delinquency proceedings.


[14]   Indiana Code section 31-37-18-1.3 (2007) requires that a delinquent child be

       given notice of and an opportunity to be heard during a dispositional hearing.

       Nothing in the statute, however, requires that the delinquent child be physically

       present for either a dispositional or modification hearing. C.S., Jr. does not

       claim that he was not given adequate notice of the March 6, 2018 hearing. The

       record clearly demonstrates that he participated in the hearing via video

       conference. We conclude that C.S., Jr.’s presence via video conference was

       sufficient to satisfy the requirements of Indiana Code section 31-37-18-1.3.


[15]   Judgment affirmed.


       Pyle, J., and Altice, J., concur.




       Court of Appeals of Indiana | Opinion 18A-JV-862 | September 19, 2018       Page 6 of 6
