MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                               FILED
this Memorandum Decision shall not be                                           Apr 08 2020, 11:18 am
regarded as precedent or cited before any
                                                                                     CLERK
court except for the purpose of establishing                                     Indiana Supreme Court
                                                                                    Court of Appeals
the defense of res judicata, collateral                                               and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Michael G. Moore                                          Curtis T. Hill, Jr.
Indianapolis, Indiana                                     Attorney General of Indiana
                                                          Myriam Serrano
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

K.B.,                                                     April 8, 2020
Appellant-Respondent,                                     Court of Appeals Case No.
                                                          19A-JV-2135
        v.                                                Appeal from the Knox Superior
                                                          Court, Juvenile Division
State of Indiana,                                         The Honorable Gara U. Lee,
Appellee-Petitioner.                                      Judge
                                                          Trial Court Cause No.
                                                          42D01-1902-JD-11



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-JV-2135 | April 8, 2020                   Page 1 of 12
                                        Statement of the Case
[1]   K.B. (“K.B.”)—following his admission to the allegation that he had

      committed an act that would constitute Class B misdemeanor criminal mischief

      if committed by an adult and his subsequent unsuccessful placement in a

      residential program—appeals the juvenile court’s modified disposition order

      awarding wardship to the Indiana Department of Correction with placement at

      a juvenile facility. He also argues that the juvenile court erred by ordering

      payment of costs and fees without inquiring into the ability to pay. Concluding

      that the juvenile court did not abuse its discretion by modifying the

      dispositional order and that the juvenile court improperly imposed costs and

      fees without inquiring into an ability to pay, we affirm the juvenile court’s

      modified disposition order, reverse the juvenile court’s imposition of costs and

      fees, and remand for further proceedings.


[2]   We affirm in part, reverse in part, and remand.


                                                     Issues
              1. Whether the juvenile court abused its discretion by modifying
                 the dispositional order to award wardship of K.B. to the
                 Department of Correction.

              2. Whether the juvenile court erred by ordering payment of costs
                 and fees without inquiring into the ability to pay.




      Court of Appeals of Indiana | Memorandum Decision 19A-JV-2135 | April 8, 2020   Page 2 of 12
                                                          Facts
[3]   In February 2019, then fifteen-year-old K.B. lived with his stepmother, Sara

      Letts (“Stepmother”),1 while his father was incarcerated. K.B.’s mother did not

      have regular contact with K.B. Apparently another relative had had a

      guardianship over K.B. since 2014, but that guardian did not have contact with

      K.B.


[4]   On February 24, 2019, K.B. damaged a door frame at Stepmother’s house.

      Thereafter, the State filed a petition alleging that K.B. was a delinquent child

      for committing an act that would constitute Class B misdemeanor criminal

      mischief if committed by an adult. K.B.’s juvenile history included an

      adjudication in September 2018 for battery resulting in moderate bodily injury

      and referrals for disorderly conduct and habitual disobedience.


[5]   On March 14, 2019, the juvenile court held a combination

      admission/disposition hearing, during which K.B. admitted to the delinquency

      allegation. Stepmother was present at the hearing.2 The juvenile court

      determined that K.B. was a delinquent child and then moved to determining the

      disposition. The juvenile court ordered a “90-day suspended sentence to secure

      detention, suspended to one year of formal probation[.]” (Tr. Vol. 2 at 10). As




      1
          The record on appeal refers to Stepmother as Sara Letts, Sarah Letts, Sara Lett, or Sara Baughn.
      2
        The record on appeal indicates that K.B.’s “sister” was present at the hearing. (App. Vol. 2 at 8, 53).
      However, the record further indicates that this “sister” who was present was Sara Letts, who is K.B.’s
      stepmother.

      Court of Appeals of Indiana | Memorandum Decision 19A-JV-2135 | April 8, 2020                       Page 3 of 12
a condition of probation, the juvenile court ordered K.B. to complete a

residential treatment program at White’s Residential and Family Services

(“White’s”). During that hearing, the juvenile court advised K.B. as follows:


        [W]hen you’re at White’s, how long you are there is going to be
        dependent on you and your progress in that program[.] . . . So
        the sooner you get on board and take things seriously and take
        things to heart, and make some real change, the sooner you’re
        going to be able to come home.


(Tr. Vol. 2 at 11). Additionally, the juvenile court imposed the “typical fines,

costs, and fees[,]” which included a court cost of $185, a probation

administration fee of $100, a public defender fee of $50, initial probation fee of

$25, and a monthly user fee of $15. Upon the imposition of these costs and

fees, K.B.’s counsel, the probation officer, and the juvenile court had the

following discussion:


        [K.B.’s Counsel]: Just one administrative question, Your Honor.
        With regard to the fees, this is the situation where we have the
        guardianship in place for [K.B.] with a guardian that doesn’t
        have any contact with [K.B.], Dad’s incarcerated, and Mom’s
        not involved on a regular basis. Who would normally be
        responsible for the payment of those fees to your office?

        [Probation Officer]: It would be [K.B.].

        [K.B.’s Counsel]: And he’s 15, and going to placement, so I
        assume that will be something we will work out. Okay.

        THE COURT: Yup.

        [Probation Officer]: And that the monthly fee part?


Court of Appeals of Indiana | Memorandum Decision 19A-JV-2135 | April 8, 2020   Page 4 of 12
              THE COURT: While he’s in placement - -

              [Probation Officer]: Is waived?

              THE COURT: - - won’t accrue.

              [K.B.’s Counsel]: Okay. Okay.

      (Tr. Vol. 2 at 11-12).


[6]   On June 3, 2019, the juvenile court held a review hearing. K.B.’s probation

      officer submitted a report prior to the hearing, and K.B.’s case manager at

      White’s, Miranda Sipe (“Case Manager Sipe”), testified during the hearing.

      Case Manager Sipe informed the juvenile court that K.B. had initially done well

      when he had arrived at White’s and that he was doing well academically.

      However, at the end of April and beginning of May, K.B. had been having

      behavioral issues, including anger issues, trying to manipulate staff, and

      problems with accepting consequences. The case manager also explained that

      K.B. was participating in, but had not yet completed, various treatment

      programs and that he was working on some family therapy with Stepmother.

      Before setting another review hearing for October, the juvenile court

      emphasized the importance of K.B.’s treatment participation at White’s:


              So [K.B.], you understand that, you know, how long you’re in
              treatment depends on you and your progress there. . . . [W]e
              want to make sure that you benefit from this program, and that
              when you’re released, you’re in a position that you won’t be
              coming back here to see me again. We want you to be
              successful, sounds like you’re doing great in school, I’m going to
              encourage you to keep up that, but really, you know, focus on
              your treatment and that type of thing because everybody wants

      Court of Appeals of Indiana | Memorandum Decision 19A-JV-2135 | April 8, 2020   Page 5 of 12
              you to be successful and we’re trying to get you in the best
              position for that.

      (Tr. Vol. 2 at 18).


[7]   K.B., however, did not heed the juvenile court’s advice when he returned to

      White’s. Beginning the day after the review hearing through the end of July,

      K.B. engaged in a host of aggressive and inappropriate behaviors that led

      White’s to request for K.B.’s immediate removal from its program on July 30.

      These behaviors included repeated verbal aggression, physically assaulting staff

      members and other children at the facility, destruction of facility property,

      watching pornography and showing pornography to other children, and

      possessing a vape pen and a shank made from a toothbrush.


[8]   On July 31, 2019, the State filed a modification report, setting forth all of K.B.’s

      behavioral issues while at White’s and requesting that his disposition be

      modified. On August 1, 2019, K.B. was removed from White’s and placed in

      Southwestern Indiana Regional Youth Village (“Youth Village”) until an

      August 14 modification hearing. During the short period that K.B. was at the

      Youth Village, he continued to display aggressive behavior. For example, he

      engaged in defiant behavior, intimidation, and destruction of property, such as

      “flipping the dayroom” and throwing a chair at a television. (Tr. Vol. 2 at 36).


[9]   On August 14, 2019, the juvenile court held a modification hearing. K.B.’s

      mother was present at the hearing. K.B.’s mother informed the juvenile court

      that she had been awarded custody of K.B. when she divorced his father but


      Court of Appeals of Indiana | Memorandum Decision 19A-JV-2135 | April 8, 2020   Page 6 of 12
       that an aunt currently had a guardianship over K.B. At the end of the hearing,

       the juvenile court modified the disposition order and awarded wardship of K.B.

       to the Department of Correction with placement at the juvenile facility. The

       juvenile court did not modify its order for the payment of costs or fees. K.B.

       now appeals.


                                                    Decision
       1. Modified Disposition


[10]   K.B. first argues that the juvenile court abused its discretion by modifying his

       disposition. Specifically, he contends that the juvenile court should have

       continued his placement at White’s or should have considered another less

       restrictive placement instead of ordering his placement with the Department of

       Correction. We disagree.


[11]   The choice of the specific disposition of a juvenile adjudicated a delinquent

       child is a matter within 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 policy of favoring the least harsh disposition. J.S. v. State, 881 N.E.2d

       26, 28 (Ind. Ct. App. 2008). A juvenile disposition will not be reversed absent a

       showing of an abuse of discretion. Id. An abuse of discretion occurs when the

       juvenile 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

       inferences that can be drawn therefrom. Id. Thus, the juvenile court is

       accorded wide latitude and great flexibility in its dealings with juveniles. Id.

       Court of Appeals of Indiana | Memorandum Decision 19A-JV-2135 | April 8, 2020   Page 7 of 12
[12]   INDIANA CODE § 31-37-18-6 provides:


               If consistent with the safety of the community and the best
               interest of the child, the juvenile court shall enter a dispositional
               decree that:

               (1) is:

                         (A) in the least restrictive (most family like) and most
                         appropriate setting available; and

                         (B) close to the parents’ home, consistent with the best
                         interest and special needs of the child;

               (2) least interferes with family autonomy;

               (3) is least disruptive of family life;

               (4) imposes the least restraint on the freedom of the child and the
               child’s parent, guardian, or custodian; and

               (5) provides a reasonable opportunity for participation by the
               child’s parent, guardian, or custodian.


[13]   Under this statute, the juvenile court “is only required to consider the least

       restrictive placement if that placement comports with the safety needs of the

       community and the child’s best interests.” J.B. v. State, 849 N.E.2d 714, 717

       (Ind. Ct. App. 2006) (citing I.C. § 31-37-18-6) (emphasis in original). “Thus,

       the statute recognizes that in certain situations the best interest of the child is

       better served by a more restrictive placement.” K.A. v. State, 775 N.E.2d 382,

       387 (Ind. Ct. App. 2002), trans. denied.


[14]   Here, this case presents such a situation where a more restrictive placement was

       not an abuse of discretion. K.B., who has a history of juvenile delinquency,

       Court of Appeals of Indiana | Memorandum Decision 19A-JV-2135 | April 8, 2020   Page 8 of 12
       was already given an opportunity to be in a less restrictive residential placement

       at White’s, and he was unsuccessful in that placement. Indeed, his behavior

       while in that residential placement was so frequent and abhorrent that White’s

       sought to have him immediately removed its facility. Moreover, after K.B.’s

       removal from White’s, he continued his aggressive behavior while in the Youth

       Village. K.B.’s behavior showed a defiance and lack of respect for authority.

       Given the facts and circumstances of this case, we cannot say that the juvenile

       court abused its discretion by modifying its disposition order and ordering the

       placement of K.B. with the Department of Correction. See, e.g., K.A., 775

       N.E.2d at 387 (concluding that there was no abuse of discretion by the juvenile

       court when it modified the juvenile’s disposition to commitment to the

       Department of Correction after the juvenile had failed to reform her behavior at

       other placements); M.R. v. State, 605 N.E.2d 204, 208 (Ind. Ct. App. 1992)

       (explaining that “[t]here are times in juvenile proceedings when the best interest

       of the juvenile and society require commitment” to a juvenile facility).


       2. Payment of Costs and Fees


[15]   Additionally, K.B. challenges the juvenile court’s imposition of costs and fees

       without inquiring into his or his parents’ ability to pay.


[16]   Pursuant to INDIANA CODE § 31-40-2-1(a), a juvenile court “may” order a

       delinquent child or the child’s parent, guardian, or custodian to pay probation

       fees and an administrative fee; however, such fees are subject to INDIANA CODE



       Court of Appeals of Indiana | Memorandum Decision 19A-JV-2135 | April 8, 2020   Page 9 of 12
§ 31-40-1-3.3 Our Court recently addressed INDIANA CODE § 31-40-1-3,

sometimes referred to as the reimbursement statute, as follows:


           The reimbursement statute provides that the juvenile court
           “shall” order parents to pay for or reimburse the costs of services
           provided to the delinquent child “unless” the court finds that
           parents are unable to pay or that justice would not be served.
           I.C. § 31-40-1-3(c). Thus, implicit in an order for parents to
           reimburse costs is that parents are able to pay and that such is in
           the interest of justice. Hence, this court has held that the
           reimbursement statute requires the juvenile court to inquire into
           parents’ ability to pay and what justice requires for any given set
           of circumstances before it can order parents to pay or reimburse
           costs.




3
    INDIANA CODE § 31-40-1-3 provides, in relevant part:
         (a) A parent or guardian of the estate of:
           (1) a child adjudicated a delinquent child . . .
         is financially responsible . . . for any services provided by or through the department.
         (b) Each person described in subsection (a) shall, before a hearing under subsection (c)
         concerning payment or reimbursement of costs, furnish the court and the department with an
         accurately completed and current child support obligation worksheet on the same form that is
         prescribed by the Indiana supreme court for child support orders.
         (c) At:
           (1) a detention hearing;
           (2) a hearing that is held after the payment of costs by the department under section 2 of this
           chapter (or IC 31-6-4-18(b) before its repeal);
           (3) the dispositional hearing; or
           (4) any other hearing to consider modification of a dispositional decree;
         the juvenile court shall order the child’s parents or the guardian of the child’s estate to pay for,
         or reimburse the department for the cost of services provided to the child or the parent or
         guardian unless the court makes a specific finding that the parent or guardian is unable to pay or
         that justice would not be served by ordering payment from the parent or guardian.



Court of Appeals of Indiana | Memorandum Decision 19A-JV-2135 | April 8, 2020                        Page 10 of 12
       E.M. v. State, 128 N.E.3d 1, 7 (Ind. Ct. App. 2019) (citing of Matter of C.K., 695

       N.E.2d 601, 605 (Ind. Ct. App. 1998), trans. denied; In re M.L.K., 751 N.E.2d

       293, 298-99 (Ind. Ct. App. 2001)).


[17]   Here, the juvenile court imposed costs and fees at the initial disposition hearing

       when K.B.’s parents or guardian were not present. K.B.’s stepmother was at

       that hearing, but the record before us does not reveal that the juvenile court

       made any inquiry to K.B. or Stepmother regarding an ability to pay.

       Additionally, at the disposition modification hearing, K.B.’s mother was

       present, but the juvenile court made no inquiry into her ability to pay.


[18]   The State acknowledges that the juvenile court improperly ordered K.B. to pay

       costs and fees without inquiring as to his or his parents’ ability to pay and that

       “the appropriate remedy would be to remand to the juvenile court to conduct

       an indigency hearing.” (State’s Br. 13).4 Accordingly, we remand this case to

       the juvenile court to conduct an indigency hearing. See, e.g., E.M., 128 N.E.3d

       at 2 (reversing the imposition of costs and remanding for a hearing to consider

       statutory factors, including the parents’ ability to pay and whether

       reimbursement served the interest of justice); M.Q.M. v. State, 840 N.E.2d 441,

       449 (Ind. Ct. App. 2006) (remanding the case for the juvenile court to conduct



       4
         We reject the State’s initial argument that K.B. forfeited his right to appeal the imposition of fees and costs
       because he did not file a notice of appeal when the juvenile court entered its initial disposition order and
       because there are no extraordinary compelling reasons to allow him to raise the issue.

       Court of Appeals of Indiana | Memorandum Decision 19A-JV-2135 | April 8, 2020                       Page 11 of 12
       an indigency hearing); A.E.B. v. State, 756 N.E.2d 536, 544 (Ind. Ct. App. 2001)

       (remanding for indigency hearing to determine juvenile’s ability to pay

       probation and public defender fees).


[19]   Affirmed in part, reversed in part, and remanded.


       Bradford, C.J., and Baker, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-JV-2135 | April 8, 2020   Page 12 of 12
