MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        FILED
regarded as precedent or cited before any                               Aug 31 2020, 9:00 am
court except for the purpose of establishing
                                                                             CLERK
the defense of res judicata, collateral                                  Indiana Supreme Court
                                                                            Court of Appeals
estoppel, or the law of the case.                                             and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Mark K. Leeman                                           Curtis T. Hill, Jr.
Leeman Law Office and                                    Attorney General of Indiana
Cass County Public Defender
                                                         Caroline G. Templeton
Logansport, Indiana                                      Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

B.M.,                                                    August 31, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         20A-JV-335
        v.                                               Appeal from the Cass Circuit
                                                         Court
State of Indiana,                                        The Honorable Stephen R. Kitts,
Appellee-Plaintiff,                                      II, Judge
                                                         Trial Court Cause No.
                                                         09C01-1911-JD-85



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A-JV-335 | August 31, 2020                   Page 1 of 9
                                Case Summary and Issue
[1]   The juvenile court adjudicated B.M. a delinquent child for acts that, if

      committed by an adult, would constitute criminal mischief, a Class B

      misdemeanor, and awarded wardship of him to the Indiana Department of

      Correction (“DOC”). B.M. appeals, raising one issue for our review which we

      revise and restate as whether the juvenile court erred by failing to find that B.M.

      was a dual status child and refer him to a dual status assessment team to be

      evaluated prior to disposition. Concluding the juvenile court did err, we reverse

      and remand with instructions.



                            Facts and Procedural History
[2]   On November 13, 2019, the State filed a petition alleging B.M. was a

      delinquent child for acts that, if committed by an adult, would constitute the

      following offenses: Count 1, unlawful possession of a legend drug, a Level 6

      felony; Count 2, possession of a controlled substance, a Class A misdemeanor;

      Count 3, criminal mischief, a Class B misdemeanor; Count 4, unlawful use of a

      police radio, a Class B misdemeanor; and Count 5, possession of marijuana, a

      Class B misdemeanor. See Appellant’s Appendix, Volume II at 16-17. A fact-

      finding hearing was held on December 12 during which B.M. admitted to the

      allegations contained in Count 3 of the delinquency petition and the remaining

      counts were dismissed. See id. at 28. The juvenile court adjudicated B.M. a

      delinquent child for committing what would be criminal mischief if committed



      Court of Appeals of Indiana | Memorandum Decision 20A-JV-335 | August 31, 2020   Page 2 of 9
      by an adult, ordered the probation department to prepare a predispositional

      report, and scheduled a dispositional hearing.


[3]   Five days before the dispositional hearing, probation filed its predispositional

      report detailing (among other things) B.M.’s extensive juvenile history,

      including numerous adjudications as a juvenile delinquent for what would be

      felony and misdemeanor offenses if committed by an adult. The report also

      indicated that B.M. had been the focus of six Department of Child Services

      (“DCS”) assessments between 2005 and 2017. His mother had been identified

      as the main perpetrator in five of those assessments. Neglect or abuse

      allegations against his mother were substantiated in 2005 and 2014. DCS also

      substantiated allegations of abuse or neglect of B.M. by his father and step-

      mother in 2014. Ultimately, B.M. was adjudicated a CHINS on June 18, 2014.

      B.M.’s mother, father, and step-mother were ordered to participate in services

      and wardship of B.M. was awarded to DCS. See id. at 82-90. The CHINS case

      was closed on July 8, 2015.


[4]   The dispositional hearing in B.M.’s juvenile delinquency case was held on

      January 15, 2020. At the conclusion thereof, the juvenile court awarded

      wardship of B.M. to the DOC and subsequently entered a written dispositional

      order that contained no findings about dual status. B.M. now appeals.



                                 Discussion and Decision


      Court of Appeals of Indiana | Memorandum Decision 20A-JV-335 | August 31, 2020   Page 3 of 9
                                     I. Standard of Review
[5]   The disposition of a juvenile adjudicated a delinquent is a matter committed to

      the sound discretion of the juvenile court, subject to the statutory considerations

      of the welfare of the child, the safety of the community, and the legislative

      policy favoring the least harsh disposition. R.H. v. State, 937 N.E.2d 386, 388

      (Ind. Ct. App. 2010). We will not reverse a juvenile disposition absent a

      showing of an abuse of discretion, which occurs when the juvenile court’s

      decision is clearly erroneous and against the logic and effect of the facts and

      circumstances before it. D.S. v. State, 829 N.E.2d 1081, 1084 (Ind. Ct. App.

      2005).


                                      II. Dual Status Child
[6]   B.M. argues the juvenile court erred by “fail[ing] to identify [him] as a dual

      status child and follow the legal procedures necessary to protect his best interest

      [and] he may be in danger as a result.” Appellant’s Brief at 14. Specifically, he

      contends “[h]ad the judge made such a finding, [he] would have been reviewed

      by a dual status [assessment] team who would make recommendations based

      upon [his] history of living in an abusive family. Because none of this occurred

      here, [he] may be dumped right back into a situation of abuse and neglect when

      he is released from the DOC.” Id. at 22. We agree.


               Research has demonstrated that there is a greater likelihood of
               delinquency among children who have suffered abuse and
               neglect. Indiana Code Article 31-41 was enacted in 2015 to
               address the specific needs of these children by providing both the
               child welfare system and the juvenile justice system tools to
      Court of Appeals of Indiana | Memorandum Decision 20A-JV-335 | August 31, 2020   Page 4 of 9
              identify, communicate and implement a coordinated plan that
              serves a child’s best interests and welfare. Therefore, when a
              child enters either the child welfare system or the juvenile justice
              system, the court and responding agencies must determine
              whether a child is a dual status child and proceed accordingly.


      K.S. v. State, 114 N.E.3d 849, 852 (Ind. Ct. App. 2018) (quotations omitted),

      trans. denied.


[7]   Indiana Code chapter 31-37-13 describes the procedures for a factfinding

      hearing in a juvenile delinquency adjudication. Indiana Code section 31-37-13-

      2(a) requires the juvenile court, upon making a delinquency determination, to

      order a predispositional report, schedule a dispositional hearing, and complete a

      dual status screening tool on the child and determine whether the child is a

      “dual status child.” The “dual status screening tool” is a “factual review of a

      child’s status and history conducted by the case manager [in a CHINS

      proceeding] or the probation officer [in a delinquency proceeding]” used to

      determine whether a child meets the criteria for being a dual status child. Ind.

      Code § 31-41-1-3. As relevant here, a “dual status child” is a child who “has

      been previously adjudicated to be a [CHINS] . . . and who was under a

      wardship that had been terminated or was in a program of informal adjustment

      that had concluded before the current delinquency petition[.]” Ind. Code § 31-

      41-1-2(4). A dual status assessment team1 is responsible for evaluating a dual




      1
        “Dual status assessment team” is “a committee assembled and convened by a juvenile court to recommend
      the proper legal course for a dual status child.” Ind. Code § 31-41-1-5.

      Court of Appeals of Indiana | Memorandum Decision 20A-JV-335 | August 31, 2020               Page 5 of 9
      status child’s status, best interests, need for services, and level of needs,

      strengths, and risks. Ind. Code § 31-41-1-4. The dual status assessment team

      must meet, assess the child’s best interests and well-being, and provide written

      recommendations to the trial court about how to proceed. Ind. Code §§ 31-41-

      2-3, -5, -6. And when the juvenile court issues its dispositional decree, it must

      be accompanied by written findings and conclusions, including a specific

      finding as to whether the child is a dual status child. Ind. Code § 31-37-18-9(a).


[8]   Section 2(a) of the chapter concerning delinquency factfinding hearings requires

      the juvenile court to determine whether the child is a dual status child and

      section 2(b) provides that “[i]f a child is determined to be a dual status child, the

      court may refer the child for an assessment by a dual status assessment team[.]”

      Ind. Code § 31-37-13-2 (emphasis added). However, once the juvenile court

      determines that a child is a dual status child, Indiana Code Title 31-41 explicitly

      requires that the juvenile court refer the child to be assessed by a dual status

      assessment team. Ind. Code § 31-41-2-1 (stating that the juvenile court “shall

      refer the child to be assessed by a dual status assessment team” (emphasis

      added)). Therefore, the two statutes disagree as to whether a dual status referral

      is mandatory. We reiterate that the purpose of our dual status legislation is to

      address the specific needs of dual status children – those in both the child

      welfare system and juvenile system – by implementing a plan to serve their best

      interests and welfare. K.S., 114 N.E.3d at 852. Although the delinquency

      statute says the juvenile court “may” refer the child, once a juvenile court finds

      a child to be a dual status child, we believe that the dual status assessment is


      Court of Appeals of Indiana | Memorandum Decision 20A-JV-335 | August 31, 2020   Page 6 of 9
       required. Interpreting the assessment as discretionary following a

       determination that a child is a dual status child, would be inconsistent with the

       purpose of the legislation.2


[9]    Here, there is no evidence in the record that the juvenile court completed the

       dual status screening tool, found B.M. to be a dual status child, referred him to

       be assessed by a dual status assessment team, or that B.M. was evaluated by

       such team. B.M. contends he is a dual status child and the State does not

       challenge this assertion. Instead, the State argues that “B.M. is unable to

       establish that even if a dual status assessment team had been convened that the

       juvenile court’s dispositional decree would have been altered. It was the

       juvenile court, not the dual status assessment team, who had the final decision

       in the manner in which the case proceeded.” Brief of Appellee at 12 (citing Ind.

       Code § 31-41-3-1). Indeed, it is possible that a dual status assessment team’s

       recommendation would not have affected the juvenile court’s disposition in this

       case. However, we cannot definitively conclude so.


[10]   “[T]he inability of [the juvenile justice and child welfare] systems to coordinate

       services for a blended approach often places a child on a trajectory that does not

       meet the child’s needs and best interests.” Dual Status Resource Notebook,

       Tab 3: Why Do We Need Dual Status Processes?,




       2
         Remedying the inconsistencies between our juvenile delinquency and dual status statutes regarding whether
       the dual status assessment referral is mandatory is a task for our legislature. See 15A Ind. Prac., Family Law
       – Children In Need Of Services § 19:19 (pointing out “internal contradictions[,]” including whether the dual
       status referral is required, contained in various provisions of our CHINS and dual status statutes).

       Court of Appeals of Indiana | Memorandum Decision 20A-JV-335 | August 31, 2020                     Page 7 of 9
       http://www.state.in.us/judiciary/probation/files/Dual%20Status%20Resourc

       e%20Notebook.pdf [https://perma.cc/WEM8-5WD9]. Therefore, given the

       important objective of our dual status legislation, we cannot conclude that the

       failure to refer B.M. to the dual status assessment team for evaluation was

       essentially harmless as the State contends.


[11]   We conclude there is sufficient evidence in the record to support a finding that

       B.M. is a dual status child pursuant to Indiana Code section 31-41-1-2(4). B.M.

       was previously adjudicated a CHINS in June 2014 and was under DCS’

       wardship until the CHINS case was closed in July 2015, all of which occurred

       before this delinquency petition was filed. See Appellant’s App., Vol. II at 32,

       39, 82-90. Because the juvenile court failed to find that B.M. is a dual status

       child and refer him to the dual status assessment team in violation of Indiana

       law, we reverse the juvenile court’s dispositional order and remand with

       instructions for the juvenile court to enter an order finding B.M. to be a dual

       status child and referring him to be evaluated by the dual status assessment

       team and to then conduct further proceedings consistent with this opinion.



                                               Conclusion
[12]   We conclude the juvenile court abused its discretion when it failed to determine

       that B.M. is a dual status child and order that he be assessed by a dual status

       assessment team as required by Indiana Code section 31-41-2-1 before entering

       a dispositional order. Therefore, we reverse the juvenile court’s dispositional

       order and remand with instructions for the juvenile court to enter an order

       Court of Appeals of Indiana | Memorandum Decision 20A-JV-335 | August 31, 2020   Page 8 of 9
       finding that B.M. is a dual status child and referring him to be assessed by a

       dual status assessment team.


[13]   Reversed and remanded.


       May, J., and Vaidik, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A-JV-335 | August 31, 2020   Page 9 of 9
