MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                                FILED
regarded as precedent or cited before any                                    Apr 30 2019, 11:05 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
Deborah Markisohn                                         Curtis T. Hill, Jr.
Marion County Public Defender                             Attorney General of Indiana
Agency, Appellate Division                                Benjamin J. Shoptaw
Indianapolis, Indiana                                     Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

N.F.,                                                     April 30, 2019
Appellant,                                                Court of Appeals Case No.
                                                          18A-JV-2655
        v.                                                Appeal from the Marion Superior
                                                          Court
State of Indiana,                                         The Honorable Marilyn A.
Appellee.                                                 Moores, Judge
                                                          The Honorable Gary Chavers,
                                                          Magistrate
                                                          Trial Court Cause No.
                                                          49D09-1807-JD-854



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-JV-2655 | April 30, 2019                           Page 1 of 12
[1]   N.F. appeals the juvenile court’s disposition of his case following a

      determination that he is a juvenile delinquent. N.F. raises one issue which we

      revise and restate as whether the court committed fundamental error by failing

      to specifically ask him whether he wanted to address the court to make a

      statement in allocution at the dispositional hearing. We affirm.


                                       Facts and Procedural History

[2]   N.F., who was born in October 2000, was in a dating relationship with L.P. and

      resided with her. On July 25, 2018, N.F. and L.P. argued, and N.F. broke

      L.P.’s cell phone and slapped her which caused L.P. to feel pain. The State

      alleged N.F. to be a delinquent child for acts constituting the following crimes if

      committed by an adult: Count I, domestic battery as a class A misdemeanor;

      Count II, battery resulting in bodily injury as a class A misdemeanor; and

      Count III, criminal mischief as a class B misdemeanor.


[3]   On August 22, 2018, the court held a hearing, N.F.’s counsel indicated that

      N.F. would enter admissions to Counts I, II, and III, and N.F. admitted the

      allegations. The court found a sufficient factual basis to adjudicate N.F. to be a

      delinquent child. His mother stated that he had a “violent history,” had placed

      his hands on her several times, “gets very angry,” and that she “actually

      emailed Probation about thirty pages of run ins that we’ve had with the law

      since mid October 2015.” Transcript Volume II at 12-13. She also stated that

      she told N.F., “One of these days, I’m going to either wake up in the hospital,


      Court of Appeals of Indiana | Memorandum Decision 18A-JV-2655 | April 30, 2019   Page 2 of 12
      or my three kids are going to wake up without a mom.” Id. at 13. The court

      ordered a psychological evaluation of N.F.


[4]   In a pre-dispositional report filed on September 17, 2018, the probation officer

      indicated that N.F. stated:


              I feel bad about it. I made a bad decision. I had a job. What I
              would want to happen is to go home to mom, finish high school
              and get a job. If that is not possible I would prefer to go to
              placement over the Department of Corrections. I would be open
              to group home. I will be 18 soon and would like help to be on
              my own. I would also like house arrest. I just want to get out of
              trouble. I just want to do what I can to finish high school. I
              want to be a Welder. I want to get out to start this.


      Appellant’s Appendix Volume II at 89. The report indicated that N.F.’s mother

      stated that N.F. had been violent towards her since around the age of 14, and

      that, when he was residing with her, she and her daughter would sleep with

      their door locked because they were afraid of him. The report stated that N.F.’s

      mother was in the military and was currently re-enlisting, that he had not lived

      with his mother for a very long time, and that he stated that he did not have a

      good relationship with his mother and her boyfriend and had physical

      altercations with his mother’s boyfriend. N.F.’s overall risk assessment score

      places him in the high risk to reoffend category. The report also indicated that

      probation recommended that he be released to his mother’s care.


[5]   On September 26, 2018, the court held a dispositional hearing. N.F.’s counsel

      asserted that his aunt was willing to have him in her household, that the case


      Court of Appeals of Indiana | Memorandum Decision 18A-JV-2655 | April 30, 2019   Page 3 of 12
      did not involve a serious injury, that he had been detained for two months

      already was five credits away from graduating from Warren Central High

      School, and that he did not have a serious history of true findings.


[6]   N.F.’s mother testified that she did not want him in her home, that he always

      had a great relationship with his aunt,1 and that she was worried about the

      safety of his younger sister. Amber Keegan testified that she and N.F.’s mother

      had been best friends for about fifteen years, that she has four children, that he

      would have to know he has to go to school, that he could sleep on the couch,

      and that he had never threatened her or her children. Upon questioning by

      N.F.’s counsel, Keegan stated that N.F. had always been very respectful and

      behaved. Upon questioning by the prosecutor, Keegan stated that she was

      aware that N.F. had been violent with his mother.


[7]   The court took a recess and then indicated that it had a brief conference and

      that it was the court’s position that the matter needed to be continued to give

      N.F.’s counsel more time to “put together . . . a potential plan.” Transcript

      Volume II at 27. N.F.’s counsel asked: “Perhaps as a test option . . . releasing

      him to Ms. Keegan on Electronic Monitor and on GPS unit for the time being

      for the week?” Id. at 30. The court denied the request.




      1
       When asked if she and the aunt were sisters, N.F.’s mother stated: “Not biologically, your Honor.”
      Transcript Volume II at 23.

      Court of Appeals of Indiana | Memorandum Decision 18A-JV-2655 | April 30, 2019                 Page 4 of 12
[8]   On October 4, 2018, the court held a hearing at which N.F.’s counsel

      mentioned that N.F. had one prior misdemeanor in Hamilton County, that he

      had been in detention for seventy days, that no serious injury was involved, and

      that he was five credits away from graduating. He requested probation with

      community-based services and placement in Keegan’s home. He also stated:


              I want the Court to be aware however, that if the Court were to
              reject that . . ., [N.F.] is fully prepared to cooperate and take full
              advantage of a placement at Fairbanks. [H]e recognizes that he
              has . . . demonstrated substance abuse issues in the past, and that
              those play a certain part . . . in the behaviors that have gotten him
              in trouble here today.


      Id. at 33. He also stated the Department of Correction (“DOC”) “is . . . way

      out line [sic] with what’s typical and what is required for this.” Id. N.F.’s

      mother stated that “last time when I spoke to [N.F.], I was able to see changes,

      but I said he’s very manipulative too. He can pull the wools [sic] over my eyes,

      but I’m hoping that that’s not the case . . . .” Id. at 38. Keegan stated in part

      that N.F.’s mother mentioned Fairbanks to her and: “I kind of agree with

      Fairbanks.” Id. at 39. The prosecutor stated that the DOC “is the only option

      at this point,” mentioned the concern that Keegan has four children in her

      home, and stated that she was unsure that thirty days in Fairbanks would be

      sufficient for “him to get on the right track.” Id. at 40.


[9]   After a recess, the court informed N.F. that it was going to reset the hearing for

      the following day and that it was not going to send him straight home or

      straight to Keegan, and he indicated that he understood. The court asked N.F.

      Court of Appeals of Indiana | Memorandum Decision 18A-JV-2655 | April 30, 2019   Page 5 of 12
       if he turned eighteen on Monday, and he responded affirmatively. The court

       also asked N.F.’s counsel, “[I]s there anything else you would want on the

       record?” Id. at 42.


[10]   On October 5, 2018, the court held a hearing at which the following exchange

       occurred:


               THE COURT: . . . The Court is now ready to issue a ruling. I
               do want to give the opportunity, State anything else you want to
               add today?

               [Prosecutor]: Nothing Judge.

               THE COURT: [N.F.’s Counsel]?

               [N.F.’s Counsel]: No Judge.


       Id. at 44. The court ordered that N.F. be committed to the DOC for placement

       at a juvenile correctional facility, that the commitment “is up until his twenty-

       first birthday unless sooner released by the [DOC],” and that the court would

       make a recommendation of nine months at the DOC. Id. The court requested

       that the DOC consider N.F. for the Logansport Facility for the Cliff Unit, and

       stated that placement is a decision that would be made by the DOC after the

       two-week diagnostic at Logansport.


[11]   That same day, the court entered a Dispositional Decree on Delinquency which

       found in part that: N.F. has prior history in another jurisdiction; he had two

       stays at the Youth Crisis Center in Jacksonville, Florida, including one stay for

       a burglary arrest; he was on probation in Hamilton County and spent several


       Court of Appeals of Indiana | Memorandum Decision 18A-JV-2655 | April 30, 2019   Page 6 of 12
months at White’s Residential Facility; and Mother stated that he is violent

toward her in the home. The order also stated:


        Dr. Jim Dalton completed a psychological evaluation on [N.F.]
        and found [N.F.] to have a primary diagnosis of polysubstance
        abuse/dependence and a secondary diagnosis of conduct
        disorder.

        Dr. Dalton added the following:

                 “It is important to note that while [N.F.] has a very limited
                 history with the Marion Superior Court, his history of
                 maladjustment in other jurisdictions and in his everyday
                 living has been quite severe over the last many years.
                 Interventions of the Court and of treatment professionals
                 have not had significant impact on this youth’s behaviors
                 and risks to date. As noted, he is at high risk for
                 maladjustment.”

                 “What is known is that residential placement is not likely
                 to produce any long term and sustained change for this
                 young man. He may participate in care during his
                 placement, but his risk is likely to return quickly when
                 discharged. However, a placement may be the only option
                 to consider – and quite honestly, may be the only way that
                 this youth finishes high school, stays away from drugs and
                 gains some vocational skills and directions going forward.
                 He is not likely to do these things if released to the
                 community.”

                 “In this regard commitment to the [DOC] may have a
                 chance to have similar impacts – completing a GED,
                 gaining job skills, and being abstinent [from] drug and
                 alcohol abuse. DOC commitment may be considered (if
                 applicable to legally be considered) due to the lack of
                 efficacy of a previous residential placement setting.”


Court of Appeals of Indiana | Memorandum Decision 18A-JV-2655 | April 30, 2019   Page 7 of 12
                        “This youth’s prognosis is very serious and very
                        concerning. If he does not complete his high school
                        education, does not have a basic vocational skill developed
                        over the next 4 to 6 months, he will be in jail/prison at a
                        young age or may have worse outcomes (e.g. death).”


       Appellant’s Appendix Volume II at 117.


                                                    Discussion

[12]   The issue is whether the court committed fundamental error by failing to

       specifically ask N.F. whether he wanted to address the court to make a

       statement in allocution at the dispositional hearing. N.F. acknowledges that his

       counsel did not object to the court’s failure to provide him with an opportunity

       to address the court prior to pronouncing disposition and that this case is

       reviewed for fundamental error. He asserts the court was required to inform

       him he had the right to be heard and inquire whether he wished to exercise this

       right. He argues that, while the court heard from Mother repeatedly and at

       length, it never heard from him directly. Without citation to authority, N.F.

       asserts that, “[i]n contrast to the approach taken by a panel of this Court in

       D.M. [v. State, 108 N.E.3d 393 (Ind. Ct. App. 2018), trans. denied,] consideration

       of a claim of fundamental error does not involve consideration of the totality of

       the facts and circumstances.” Appellant’s Brief at 22.


[13]   The State argues that N.F. waived his right to allocution by failing to object and

       that the court did not commit fundamental error. It contends that almost every

       analysis of error involves some form of review of the facts and circumstances.

       The State asserts that N.F.’s counsel argued for a lesser placement than the
       Court of Appeals of Indiana | Memorandum Decision 18A-JV-2655 | April 30, 2019   Page 8 of 12
       DOC at every stage of the dispositional hearing, that he had a history of

       delinquent and/or violent conduct, and that it is highly unlikely that the

       juvenile court’s ruling would have been swayed by hearing him personally ask

       the same request as his Mother and counsel.


[14]   Fundamental error is an extremely narrow exception to the contemporaneous

       objection rule that allows a defendant to avoid waiver of an issue. D.M., 108

       N.E.3d at 395. Fundamental error occurs when an error constitutes a blatant

       violation of basic principles, the harm or potential for harm is substantial, and

       the error deprives a party of fundamental due process. Id. The fundamental

       error exception is available only in egregious circumstances. Id.


[15]   “In criminal cases involving adults, a defendant’s right to offer a statement on

       his or her behalf before the trial court pronounces sentence is known as the right

       of allocution, which has been recognized in the common law since at least

       1682.” Id. (quoting Vicory v. State, 802 N.E.2d 426, 428 (Ind. 2004)).


[16]   “As a general rule, ‘[t]he standard for determining what due process requires in

       a particular juvenile proceeding is “fundamental fairness.”’” Id. (quoting D.A.

       v. State, 967 N.E.2d 59, 64 (Ind. Ct. App. 2012) (quoting S.L.B. v. State, 434

       N.E.2d 155, 156 (Ind. Ct. App. 1982))). The Legislature has specifically

       explained who must be allowed to speak at juvenile dispositional hearings as

       follows:


               (a) The prosecuting attorney or probation department of the
               juvenile court shall provide notice of the date, time, place, and
               purpose of the dispositional hearing under this chapter to each:
       Court of Appeals of Indiana | Memorandum Decision 18A-JV-2655 | April 30, 2019   Page 9 of 12
                        (1) party or person for whom a summons is required to be
                        issued under IC 31-37-12-2; and

                        (2) foster parent or other caretaker with whom the child is
                        placed for temporary care;

               at the time the dispositional hearing is scheduled.

               (b) The court shall:

                        (1) provide a person who is required to be notified under
                        subsection (a) an opportunity to be heard; and

                        (2) allow a person described in subdivision (1) to make
                        recommendations to the court;

               at the dispositional hearing.


       Ind. Code § 31-37-18-1.3. Ind. Code § 31-37-12-2 requires a juvenile court to

       issue a summons to the child, the child’s parent, guardian, custodian, or

       guardian ad litem, and “[a]ny other person necessary for the proceedings.”


[17]   In D.M., we addressed whether a juvenile court committed fundamental error

       by its failure to specifically ask D.M. whether he wanted to address the court to

       make a statement in allocution at the dispositional hearing. 108 N.E.3d at 394.

       We held:


               We find it to be indisputable that the better practice in this case
               would have been for the juvenile court to have specifically asked
               D.M. if he wanted to make a statement before pronouncing
               disposition of the case. It would not have taken more than a few
               minutes and would have ensured that the court directly heard
               one of the most important perspectives—that of the juvenile. As
               has been stated in criminal cases, “‘The right of allocution is
               minimally invasive of the sentencing proceeding; the requirement

       Court of Appeals of Indiana | Memorandum Decision 18A-JV-2655 | April 30, 2019   Page 10 of 12
               of providing the defendant a few moments of court time is
               slight.’”


       Id. at 395 (quoting Vicory, 802 N.E.2d at 429 (quoting United States v. Barnes, 948

       F.2d 325, 331 (7th Cir. 1991))). We stated that the analysis does not end there

       and that we must look at the totality of the facts and circumstances in

       determining whether the juvenile court denied D.M. fundamental fairness. Id.

       In light of the arguments of D.M.’s counsel, D.M.’s extensive juvenile record,

       and D.M.’s proposed probation plan which included living with his mother

       even though she had previously told probation officers that D.M. had refused to

       comply with her curfews, we concluded that the juvenile court’s failure to

       specifically ask D.M. if he wanted to make a statement was not a blatant

       violation of basic principles, did not pose a potential of substantial harm, and

       did not deprive D.M. of fundamental due process. Id. at 396.


[18]   The record reveals that N.F.’s counsel argued for alternative placements to the

       DOC. The record includes an August 2016 order indicating that N.F. was

       adjudicated a delinquent for an act that would constitute disorderly conduct as

       a class B misdemeanor if committed by an adult. In March 2017, the court

       entered an order finding that “[w]hile on probation and receiving services, the

       information indicates that on multiple occasions (including after release from

       secure detention) [N.F.] continued to use controlled substances including

       marijuana and methamphetamine,” and ordered that N.F. be placed at White’s

       Residential and Family Services. Appellant’s Appendix Volume II at 13. The

       record includes an Individual Treatment Plan dated September 14, 2017, which

       Court of Appeals of Indiana | Memorandum Decision 18A-JV-2655 | April 30, 2019   Page 11 of 12
       indicates that N.F.’s arrest history includes charges of disorderly conduct,

       battery, truancy, curfew violation, trespassing, runaway, and probation

       violation. The Probation Officer’s Report of Preliminary Inquiry indicates that

       N.F. has a prior true finding in Hamilton County for disorderly conduct as a

       class B misdemeanor from August 2016 and a prior history in Johnson County

       although he does not have any true findings. N.F. does not specifically

       challenge the juvenile court’s finding that he had prior history in another

       jurisdiction including burglary, the finding that Mother stated that N.F. is

       violent toward her in the home, or its findings regarding Dr. Dalton’s report.

       We also note that the pre-dispositional report which was filed on September 17,

       2018, included N.F.’s statement, and the juvenile court stated at the September

       26, 2018 hearing that it “reviewed the pre-disposition report.” Transcript

       Volume II at 16. Based upon the record and under these particular

       circumstances, we cannot say that N.F. has established fundamental error.


[19]   For the foregoing reasons, we affirm the judgment of the juvenile court.


[20]   Affirmed.


       May, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-JV-2655 | April 30, 2019   Page 12 of 12
