MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                           FILED
regarded as precedent or cited before any                             May 31 2018, 9:59 am

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


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Steven Knecht                                           Curtis T. Hill, Jr.
Vonderheide & Knecht, P.C.                              Attorney General of Indiana
Lafayette, Indiana
                                                        Caryn N. Szyper
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Sarah R. Schnieb,                                       May 31, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        08A02-1710-CR-2403
        v.                                              Appeal from the Carroll Superior
                                                        Court
State of Indiana,                                       The Honorable Kurtis G. Fouts,
Appellee-Plaintiff                                      Judge
                                                        Trial Court Cause No.
                                                        08D01-1705-F6-48



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 08A02-1710-CR-2403 | May 31, 2018            Page 1 of 9
                                          Case Summary
[1]   Sarah R. Schnieb (“Schnieb”) appeals the no-contact order issued as a

      condition of her probation. She contends that the trial court abused its

      discretion because the no-contact order, as applied to the father of her children,

      Leslie Field (“Field”), violates her constitutional right to raise her children.


[2]   We affirm.



                            Facts and Procedural History
[3]   On May 24, 2017, Field was in a car accident. Early in the morning of May 25,

      Delphi Police Officer Alexander Parkinson (“Officer Parkinson”) went to

      Field’s residence to speak with him about the accident. Officer Parkinson

      encountered Schnieb, Field’s girlfriend at the time, at Field’s residence. Officer

      Parkinson knew Schnieb from past dealings in his police work, and he believed

      Schnieb was under the influence of methamphetamine. Officer Parkinson

      contacted the Indiana Department of Child Services (“DCS”).


[4]   Around 9:15 that same morning, Delphi Police Officer Justin Wilson (“Officer

      Wilson”) and a DCS worker went to the residence to speak with Schnieb.

      Schnieb was extremely frantic and was making fast choppy movements. Officer

      Wilson believed Schnieb was “highly impaired/tweaking on meth” and that she

      was incapable of caring for any child. Appellant’s App. Vol. II (“App.”) at 11.

      Schnieb allowed Officer Wilson and the DCS worker into the residence, and

      when they stepped inside, Officer Wilson observed a child who appeared to be

      Court of Appeals of Indiana | Memorandum Decision 08A02-1710-CR-2403 | May 31, 2018   Page 2 of 9
      between the ages of six and eight sleeping on the couch in the living room.

      There was also a ten-month-old child sleeping in one of the bedrooms.


[5]   To avoid waking the children, the adults moved inside the kitchen where

      Officer Wilson observed two lines of what he believed to be methamphetamine

      near the microwave. Schnieb confirmed that the substance was

      methamphetamine and volunteered that it belonged to Field. Schnieb then

      stated that she smoked spice in the garage, and she led Officer Wilson into the

      garage to show him where she normally smoked spice. Officer Wilson could

      smell the odor of spice in the area and saw burnt rolling papers and ash from

      spice in the bottom of a garbage can. Officer Wilson placed Schnieb under

      arrest. At the Carroll County Jail, Schnieb admitted to the jail staff that she had

      used methamphetamine.


[6]   The State charged Schnieb with possession of methamphetamine, as a Level 6

      felony;1 maintaining a common nuisance, as a Level 6 felony;2 and neglect of a

      dependent, as a Level 6 felony.3 On July 10, 2017, pursuant to a plea

      agreement, Schnieb pleaded guilty to Level 6 felony possession of

      methamphetamine.




      1
          Ind. Code § 35-48-4-6.1(a).
      2
          I.C. § 35-45-1-5.
      3
          I.C. § 35-46-1-4.


      Court of Appeals of Indiana | Memorandum Decision 08A02-1710-CR-2403 | May 31, 2018   Page 3 of 9
[7]   At Schnieb’s sentencing hearing on July 27, the trial court reviewed the

      presentence investigation report and heard testimony from Schnieb. Schnieb

      reported that Field is the father of both of her children and that she had been in

      a ten-year relationship with Field at the time of her arrest. Schnieb had a long

      history of illegal drug use and failed attempts at rehabilitation. She had been

      convicted of misdemeanor domestic battery in 2012 and violated her probation

      in 2013 when she tested positive on a drug screen. Schnieb reported that both

      she and Field had relapsed into drug use. Schnieb stated that she started using

      drugs again because Field started using again. App. at 28.


[8]   At the time of sentencing, Schnieb was admittedly addicted to

      methamphetamine and spice. As a result of her drug use, DCS had removed

      Schnieb’s two children from her home and placed them with Schnieb’s parents.

      Schnieb testified that she had a serious drug problem and stated she was willing

      to comply with substance abuse treatment and anything DCS wanted her to do

      to get her children back. Schnieb also testified that she understood that she

      needed to stay away from people who have controlled substance issues, and she

      agreed to do so. Tr. at 8.


[9]   The trial court sentenced Schnieb to two years and 180 days executed in the

      Indiana Department of Correction, with a recommendation that she participate

      in the purposeful incarceration program. The trial court also ordered Schnieb

      to have no direct or indirect contact with several people involved in drug use

      and dealing, including Field. The trial court explained its no-contact order

      regarding Field as follows:

      Court of Appeals of Indiana | Memorandum Decision 08A02-1710-CR-2403 | May 31, 2018   Page 4 of 9
               And I’m going to put another name in here and this is going to be
               a hard one. But Les Field is another name. You’re not going to
               have any contact with Les because you’re both addicts. [Y]ou’re
               going to have contact as is required to comply with the Court’s orders in
               the CHINS case. But you’re a trigger for Les and Les is a trigger
               for you unless somebody can show me otherwise. The consistent
               thing in your life has been Les. And Les is consistently us[ing]
               controlled substances and so we’re not going to have any contact
               with Les until we decide it’s a good idea. And Les isn’t going to
               have any contact with you. Um, very difficult. Very difficult.


                                                         ***


               [The children] should be with you and maybe Les. Although I’m
               really troubled about the dynamic of your relationship. I almost
               never would want to enter an order where people that were either
               married or had children together shouldn’t have contact but I
               mean the proof is pretty stark that this is a toxic situation. So
               we’ll just have to see.


       Tr. at 26-27 (emphasis added).


[10]   On August 2, 2017, Schnieb moved the trial court to modify her executed

       sentence to community corrections or probation. In her motion, Schnieb

       informed the trial court that: she has two children who had been placed with

       her parents as part of a pending Child in Need of Services (“CHINS”) case;

       substance abuse treatment was available to her through the CHINS case; she

       could stay in her parents’ home with her children, and DCS was in support of

       that plan; and she “is willing to comply with all terms and conditions of

       probation….” App. at 32-33. On October 5, 2017, after a hearing, the trial

       court granted Schnieb’s request to modify her sentence. The trial court stayed

       Court of Appeals of Indiana | Memorandum Decision 08A02-1710-CR-2403 | May 31, 2018   Page 5 of 9
       the balance of Schnieb’s executed sentence and placed her on probation through

       the Carroll County Probation Department. As conditions of probation, Schnieb

       was required to: participate in and successfully complete the Open Arms

       Program; have no direct or indirect contact with certain persons, including

       Field; and “comply with all orders in [the pending CHINS cases,] 08D01-1709-JC-19

       and 08D01-1709-JC-20.” Id. at 51 (emphasis added).


[11]   This appeal ensued.



                                 Discussion and Decision
[12]   As an initial matter, we address the State’s contention that Schnieb waived her

       claim that the no-contact order violates her constitutional right to raise her

       children by failing to make that argument to the trial court. We disagree. In

       Meunier-Short v. State, 52 N.E.3d 927, 936 (Ind. Ct. App. 2016), we held that a

       defendant is not required to object to his probation conditions in order to

       preserve the issue for appeal. In so holding, we noted that the appeal of a

       probation condition is similar to an appeal of a sentence, which we may review

       “‘without insisting that the claim first be presented to the trial judge.”’ Id.

       (quoting Piercefield v. State, 877 N.E.2d 1213, 1218 (Ind. Ct. App. 2007), trans.

       denied). Thus, Schnieb has not waived her appeal of the no-contact order issued

       as a condition of probation.


[13]   A trial court has broad discretion in determining the appropriate conditions of a

       defendant’s probation. Howe v. State, 25 N.E.3d 210, 213 (Ind. Ct. App. 2015).


       Court of Appeals of Indiana | Memorandum Decision 08A02-1710-CR-2403 | May 31, 2018   Page 6 of 9
       That discretion is limited by the principle that the conditions imposed must be

       reasonably related to the treatment of the defendant and the protection of public

       safety. Id. And,


               [w]here, as here, the defendant challenges a probationary
               condition on the basis that it is unduly intrusive on a
               constitutional right, we will evaluate that claim by balancing the
               following factors: (1) [t]he purpose to be served by probation, (2)
               the extent to which constitutional rights enjoyed by law-abiding
               citizens should be enjoyed by probationers, and (3) the legitimate
               needs of law enforcement.


       Wilder v. State, 91 N.E.3d 1016, 1024 (Ind. Ct. App. 2018) (quoting Smith v.

       State, 779 N.E.2d 111, 117 (Ind. Ct. App. 2002), trans. denied).


[14]   Indiana Code Section 35-38-2-2.3(a)(18) allows a court to require, as a

       condition of probation, that the probationer “[r]efrain from any direct or

       indirect contact with an individual.” However, there “must be some nexus

       between the no contact order and the crime for which the defendant is being

       sentenced.” Howe, 25 N.E.3d at 214. For example, in Howe v. State, we held

       that there was a nexus between the defendant’s crime of battery and the order

       prohibiting the defendant from contacting a child in front of whom he had

       committed the battery. 25 N.E.3d at 215.


[15]   Here, Schnieb’s crime is possession of methamphetamine. In the presentence

       investigation interview, she admitted to continued substance abuse and to being

       “unable to control her urge to use.” App. at 27. She also stated that the reason

       she relapsed into drug use was because Field had relapsed into drug use. Id. at

       Court of Appeals of Indiana | Memorandum Decision 08A02-1710-CR-2403 | May 31, 2018   Page 7 of 9
       28. The trial court found that Field was a “trigger” for Schnieb’s drug use, and

       that Field’s and Schnieb’s situation was “toxic.” Tr. at 26-27. Thus, there is a

       nexus between Schnieb’s crime of drug possession and the order prohibiting her

       from contacting Field, who triggers Schnieb’s drug use. And the no-contact

       order serves the purpose of Schnieb’s probation, which is to facilitate her

       recovery from severe drug addiction and the resultant criminal behavior of

       possessing illegal drugs. The no-contact order thereby also serves the legitimate

       needs of law enforcement to keep Schnieb from possessing illegal drugs.


[16]   Moreover, the no-contact order does not unduly interfere with Schnieb’s

       constitutional right to raise her children, as she claims. The traditional right of

       parents to establish a home and raise their children is protected by the

       Fourteenth Amendment of the United States Constitution. K.W. & B.S. v. Ind.

       Dep’t of Child Servs. (In re A.S.), 17 N.E.3d 994, 1001-02 (Ind. Ct. App. 2014),

       trans. denied. However, that right is not absolute and must be subordinated to

       the best interests of the children. Id. at 1002. Schnieb’s and Field’s children are

       currently the subject of a Child in Need of Services (“CHINS”) case, which the

       trial court acknowledged in the no-contact order. The trial court specifically

       stated in both its oral and written sentencing orders that Schnieb must comply

       with any orders in the CHINS case. Obviously, such orders could include

       orders that Schnieb have contact with Field, as the trial court noted at the

       sentencing hearing. Tr. at 26. Thus, the no-contact order does not unduly

       intrude on Schnieb’s constitutional right to raise her children with their father;

       rather, it reduces the chances of her further drug use and possession while also


       Court of Appeals of Indiana | Memorandum Decision 08A02-1710-CR-2403 | May 31, 2018   Page 8 of 9
       permitting her to contact Field for co-parenting purposes at whatever frequency

       and in whatever manner the CHINS court deems to be in the children’s best

       interest.


[17]   Affirmed.


       Crone, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 08A02-1710-CR-2403 | May 31, 2018   Page 9 of 9
