MEMORANDUM DECISION
                                                                      FILED
Pursuant to Ind. Appellate Rule 65(D),                           Sep 02 2016, 8:51 am
this Memorandum Decision shall not be
                                                                      CLERK
regarded as precedent or cited before any                         Indiana Supreme Court
                                                                     Court of Appeals
court except for the purpose of establishing                           and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Mark A. Thoma                                            Gregory F. Zoeller
Leonard, Hammond, Thoma & Terrill                        Attorney General of Indiana
Fort Wayne, Indiana
                                                         Ian McLean
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Kristen N. Collette,                                     September 2, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         02A03-1512-CR-2124
        v.                                               Appeal from the Allen Superior
                                                         Court
State of Indiana,                                        The Honorable Wendy W. Davis,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         02D04-1504-F6-295



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 02A03-1512-CR-2124 | September 2, 2016   Page 1 of 10
                                          Case Summary
[1]   Kristen N. Collette (“Collette”) pleaded guilty to Neglect of a Dependent, as a

      Level 6 felony,1 following the death of her infant son. The trial court sentenced

      Collette to two years and 183 days imprisonment, with 183 days executed and

      the rest suspended to probation. On appeal, Collette presents the sole issue of

      whether the court abused its discretion when it ordered as a special condition of

      probation that Collette not care for children under the age of sixteen, but may

      have supervised visitation with her three surviving minor children. We affirm.



                                Facts and Procedural History
[2]   On December 6, 2014, Collette left her youngest son, two-month-old A.C., at

      home with a teenage friend. When Collette returned home around 10:30 p.m.,

      she told the teenager to put A.C. to sleep on her bed, a mattress on the floor.

      That night, Collette and several other adults were hanging out at the house and

      drinking alcohol. At around 1:30 a.m., Collette moved A.C. from the mattress

      to a pack-and-play crib. Between 2:30 and 3:30 a.m. he woke up crying, so

      Collette brought him back to her bed and laid him face down on the mattress

      between her body and the wall. When Collette woke up around 7:30 a.m. on

      December 7, 2014, she found A.C. lifeless and cold.




      1
          Ind. Code § 35-46-1-4 (2014).


      Court of Appeals of Indiana | Memorandum Decision 02A03-1512-CR-2124 | September 2, 2016   Page 2 of 10
[3]   The police were called. Collette told the investigating detective that she had

      about two beers the night before. Around noon, Collette submitted to an

      alcohol and drug screen, which showed she had a 0.08 blood alcohol content

      and tested positive for marijuana. Collette initially told the detective that she

      found A.C. unresponsive in the pack-and-play where she had placed him after

      feeding and changing him the night before. Collette later admitted that she

      brought A.C. into her bed in the middle of the night and that she had learned in

      a class at Parkview Hospital not to sleep with an infant. An autopsy revealed

      that A.C. had a sunken soft spot, a sign of dehydration, and slight swelling of

      the brain due to lack of oxygen. A.C.’s diaper was “absolutely engorged,”

      indicating it had not been changed in the night as Collette claimed. (App. 10.)


[4]   In December 2014, the Department of Child Services (“DCS”) opened an

      investigation into the family. Collette’s three older children, then seven, five,

      and three years old (collectively, “Children”), were adjudicated Children in

      Need of Services (“CHINS”) and placed in foster or relative care. Collette

      began having supervised visitation with Children. DCS also provided her with

      substance abuse, mental health, parenting, and home based services, with the

      goal of reunifying the family.


[5]   On April 8, 2015, the State charged Collette with Neglect of a Dependent, as a

      Level 6 felony, alleging that she knowingly or intentionally placed A.C. in a

      situation endangering his life or health. On October 5, 2015, Collette pleaded

      guilty as charged without the benefit of a plea agreement.



      Court of Appeals of Indiana | Memorandum Decision 02A03-1512-CR-2124 | September 2, 2016   Page 3 of 10
[6]   On November 2, 2015, the trial court entered judgment of conviction and held a

      sentencing hearing. The State presented evidence that prior to A.C.’s death,

      Collette and Children were living in squalor. All three Children had significant

      developmental delays and behavioral problems, which Children’s foster parents

      opined stemmed from neglect. Children had been exposed to illegal drug use.

      During the CHINS case, Collette also continued to use drugs until July 2015.

      At the conclusion of the hearing, the trial court sentenced Collette to two years

      and 183 days imprisonment, with 183 days executed and two years suspended

      to probation. As a special condition of probation, the court ordered that

      Collette “cannot care for children under the age [of] sixteen. However, she can

      have supervised visitations [with Children] through SCAN [Stop Child Abuse

      and Neglect].” (Tr. 97.)


[7]   Collette now appeals the court’s special probation condition.



                                 Discussion and Decision
[8]   Probation is a criminal sanction wherein a convicted person specifically agrees

      to accept conditions upon his or her behavior in lieu of imprisonment. Bratcher

      v. State, 999 N.E.2d 864, 873 (Ind. Ct. App. 2013), trans. denied. A trial court

      has broad discretion in fashioning the conditions of a defendant’s probation. Id.

      (citing Hevner v. State, 919 N.E.2d 109, 113 (Ind. 2010)). The court’s discretion

      is limited only by the principle that the conditions imposed must be reasonably

      related to treatment of the defendant and the protection of public safety. Id. See

      also I.C. § 35-38-2-2.3(a)(15) (providing that the court may impose any term of

      Court of Appeals of Indiana | Memorandum Decision 02A03-1512-CR-2124 | September 2, 2016   Page 4 of 10
      probation “reasonably related to the person’s rehabilitation”). Our review is

      limited to determining whether the conditions placed on the defendant are

      reasonably related to attaining these goals. Bratcher, 999 N.E.2d at 873. We

      will not set aside a trial court’s probation conditions unless the court has abused

      its discretion. Id.


[9]   The trial court ordered that as a special condition of probation, Collette cannot

      care for children under sixteen years old, but may have supervised visitation

      with Children. Collette was convicted of neglect of a dependent after she

      placed two-month-old A.C. in a situation endangering his life. An autopsy

      revealed signs that A.C. had been deprived of basic needs before his death. At

      the sentencing hearing, the State presented evidence that Collette and her

      surviving children had been living in unsanitary conditions.2 Children also had

      been exposed to illegal drug use and suffered from serious developmental delays

      and behavior problems apparently stemming from neglect.3 Collette’s relative

      testified that Collette had refused offers of help from family members concerned

      about the “chaotic” home environment and Collette’s lack of parenting skills.




      2
       Prior to Children’s removal, Collette was evicted from a house that was covered in mice feces, the oldest
      child talked about a pet mouse in her bed, and the kids were covered in bedbug bites.
      3
        When placed in foster care, Collette’s three year old son’s only intelligible words were “liquor store,” two
      obscenities, “yep,” and “nope,” and he often “toked” on a sucker stick like a marijuana joint. (Exhibit 6.) At
      seven years old, Collette’s oldest child was unable to wipe herself after going to the bathroom or dress herself.
      She has since been receiving psychological, occupational, and speech therapy to address her behavior issues
      and developmental delays.

      Court of Appeals of Indiana | Memorandum Decision 02A03-1512-CR-2124 | September 2, 2016            Page 5 of 10
       (Tr. 55.) Collette also continued to abuse drugs until July 2015, seven months

       after Children’s removal.


[10]   When a person is convicted of neglect of a dependent and there is evidence that

       she engaged in a pattern of serious child neglect, a special probation term

       restricting the offender from caring for young children is reasonably related to

       advancing her rehabilitation and protecting children from future abuse and

       neglect. See, e.g., Carswell v. State, 721 N.E.2d 1255, 1259 (Ind. Ct. App. 1999)

       (holding that, where defendant was convicted of child molesting, “conditions of

       probation that reduce the potential for access to children are reasonable”); Stott

       v. State, 822 N.E.2d 176, 180 (Ind. Ct. App. 2005) (holding that probation

       conditions barring a defendant convicted of child molesting from contacting

       children under eighteen, including his twelve year old daughter, and being near

       a school or daycare center were “protective measures for children” that “will

       assist [him] in his rehabilitation”), trans. denied. In light of Collette’s conviction

       and the other evidence of neglect, the trial court did not abuse its discretion by

       imposing a probation condition temporarily restricting Collette from caring for

       children under sixteen, but allowing her supervised visitation with Children.


[11]   Collette argues, however, that because she has three minor children, the

       probation condition is “overbroad, tantamount to the termination of [her]

       parental rights, and unconstitutional as applied to her.” (Appellant’s Br. 15.)4




       4
        The State argues that Collette’s constitutional argument is waived because it was not raised before the trial
       court. This Court has recently observed that “there appears to be a division of authority among the panels of

       Court of Appeals of Indiana | Memorandum Decision 02A03-1512-CR-2124 | September 2, 2016          Page 6 of 10
       Convicted individuals do not enjoy the same constitutional protections as law-

       abiding citizens, and probation conditions that intrude upon constitutionally-

       protected rights are not necessarily invalid. Taylor v. State, 820 N.E.2d 756, 761

       (Ind. Ct. App. 2005), trans. denied. Where, as here, a defendant claims that a

       probation condition is unduly intrusive upon a constitutional right, we evaluate

       that claim by balancing the following factors: (1) the purpose sought to be

       served by probation; (2) the extent to which constitutional rights enjoyed by

       law-abiding citizens should be afforded to probationers; and (3) the legitimate

       needs of law enforcement. Bratcher, 999 N.E.2d at 873.


[12]   Purpose Served by Probation – In this case, the probation condition helps protect

       Children from future child abuse and neglect while Collette is on probation.

       Collette agrees that a “fundamental purpose[]” of probation in this case should

       be to protect Children, but disagrees that the court’s probation condition

       achieves that purpose. (Appellant’s Br. 17.) She argues that where the CHINS

       court has already intervened to protect Children and is exercising “tremendous

       oversight,” the trial court’s probation condition inappropriately “trump[s] the

       authority of the CHINS court.” (Appellant’s Br. 17)




       this court regarding whether a defendant must object to his probation conditions in order to preserve the issue
       for appeal.” Meunier-Short v. State, 52 N.E.3d 927, 936 (Ind. Ct. App. 2016). In Piercefield v. State, 877 N.E.2d
       1213, 1218 (Ind. Ct. App. 2007), trans. denied, a panel of this Court likened an appeal of a probation condition
       to an appeal of a sentence, which may be reviewed without first presenting the claim to the trial judge. Id.
       The Piercefield court held that a defendant who first challenged his probation conditions on appeal did not
       waive appellate review of the issue. Id. Recent decisions from this Court have approved of and adopted this
       reasoning. See Meunier-Short, 52 N.E.3d at 937; Bratcher, 999 N.E.2d at 873-74. We, too, find the reasoning
       persuasive and conclude that Collette has not waived appellate review of her probation condition.

       Court of Appeals of Indiana | Memorandum Decision 02A03-1512-CR-2124 | September 2, 2016            Page 7 of 10
[13]   As Collette observes, the purpose of a CHINS adjudication is to protect

       children. See In re N.E., 919 N.E.2d 102, 106 (Ind. 2010). But this is not a

       CHINS case. Here, the trial court’s duty was to fashion an appropriate

       sentence for Collette’s neglect of a dependent conviction. Collette was

       convicted of a Level 6 felony, which carries a fixed term of between six months

       and two and one-half years, with the advisory sentence being one year. I.C. §

       35-50-2-7. She received the maximum sentence (the appropriateness of which

       she does not appeal), but the court exercised its discretion to suspend two years

       to probation. Under the circumstances of this case, it also was appropriate for

       the trial court to be concerned about protecting Children from abuse and

       neglect during Collette’s probation term. That the CHINS court also took

       substantial steps to protect Children does not render the trial court’s probation

       condition inappropriate.


[14]   The Extent to which the Constitutional Right Should Be Afforded to Probationers –

       Collette next argues that the probation condition restricting her to supervised

       visitation with Children was “tantamount” to terminating her parental rights.

       (Appellant’s Br. 17.) The Fourteenth Amendment to the U.S. Constitution

       protects the traditional right of parents to establish a home and raise their

       children. Bester v. Lake Cnty. Office of Family & Children, 839 N.E.2d 143, 147

       (Ind. 2005). Although parental rights are of a constitutional dimension, they

       are not absolute and may be terminated when the parents are unable or

       unwilling to meet their parental responsibilities. Id.




       Court of Appeals of Indiana | Memorandum Decision 02A03-1512-CR-2124 | September 2, 2016   Page 8 of 10
[15]   At the time of sentencing, Children were removed from Collette’s care and

       DCS was providing supervised visitation through the CHINS case with the goal

       of reunifying the family. DCS Family Case Manager Tiffany King (“FCM

       King”) opined at the hearing that, if the court were to order Collette to

       participate in supervised visitation for two and a half years, DCS “would have

       to consider possibly another plan for the children[,]” with potential alternative

       plans including “terminating parental rights with adoption, possibly a change of

       custody, or [Collette] voluntarily relinquishing her rights.” (Tr. 11.) Based on

       this testimony, Collette argues that the court’s probation condition of two years

       supervised visitation effectively terminated her rights to Children.


[16]   On this point, we agree with the State’s observation that “Collette makes too

       much of [FCM] King’s generalized discussion about possible courses of action

       DCS might contemplate . . . .” (Appellee’s Br. 18.) FCM King’s testimony did

       not establish that the court’s probation term would compel DCS to petition for

       termination of her parental rights, much less that the juvenile court would grant

       termination on DCS’s petition.


[17]   Law Enforcement Needs – Turning to the final factor, Collette argues that the

       probation condition does not serve the legitimate needs of law enforcement.

       She contends that probation alone, without a special condition, would have

       adequately deterred her from further criminal conduct, and, in any case, the

       CHINS court was in a “far better position” than the trial court to adjudge her

       ability to care for or visit with Children. (Appellant’s Br. 18.) Again, Collette

       confuses the trial court’s role in criminal sentencing with the CHINS court’s

       Court of Appeals of Indiana | Memorandum Decision 02A03-1512-CR-2124 | September 2, 2016   Page 9 of 10
       efforts to reunify the family. Following a criminal conviction, law enforcement

       has a legitimate need to protect potential victims from harm during the

       offender’s probation. The probation condition in this case serves that need.


[18]   “Probation is a matter of grace left to trial court discretion, not a right to which

       a criminal defendant is entitled.” Prewitt v. State, 878 N.E.2d 184, 188 (Ind.

       2007). As such, the trial court could have ordered Collette to serve her two

       years and 183 days sentence in prison, where she likely would have had limited

       contact with Children. By placing Collette on probation and allowing her

       supervised visitation with Children during that time, the trial court put Collette

       in a better position to pursue reunification with Children than if the court had

       ordered her entire sentence executed in prison. In sum, the court’s probation

       condition strikes an appropriate balance between Collette’s fundamental liberty

       interest in the parent-child relationship and the court’s legitimate need to

       protect Children from future abuse and neglect during Collette’s probation

       term. Under the circumstances of this case, the court’s probation condition was

       not unduly intrusive upon Collette’s constitutional rights.



                                               Conclusion
[19]   The trial court’s special probation condition was not an abuse of discretion.


[20]   Affirmed.


       Riley, J., and Barnes, J., concur.


       Court of Appeals of Indiana | Memorandum Decision 02A03-1512-CR-2124 | September 2, 2016   Page 10 of 10
