MEMORANDUM DECISION                                                          FILED
                                                                       Jul 03 2018, 10:15 am
Pursuant to Ind. Appellate Rule 65(D), this
                                                                             CLERK
Memorandum Decision shall not be regarded as                             Indiana Supreme Court
                                                                            Court of Appeals
precedent or cited before any court except for the                            and Tax Court
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Nancy A. McCaslin                                          Curtis T. Hill, Jr.
McCaslin & McCaslin                                        Attorney General of Indiana
Elkhart, Indiana
                                                           Katherine Cooper
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana


                                             IN THE
    COURT OF APPEALS OF INDIANA

A.S.,                                                     July 3, 2018

Appellant-Respondent,                                     Court of Appeals Case No.
                                                          17A-JV-3037
        v.                                                Appeal from the Elkhart Circuit
                                                          Court

State of Indiana,                                         The Honorable Michael A.
                                                          Christofeno, Judge
Appellee-Petitioner.
                                                          The Honorable Deborah A. Domine,
                                                          Magistrate
                                                          Trial Court Cause No.
                                                          20C01-1702-JD-48



Barteau, Senior Judge




Court of Appeals of Indiana | Memorandum Decision 17A-JV-3037 | July 3, 2018                     Page 1 of 13
                                      Statement of the Case
[1]   A.S. appeals the juvenile court’s order determining that he violated the terms of

      probation and placing him in the custody of the Indiana Department of

      Correction. We affirm.


                                                     Issues
[2]   A.S. raises three claims, which we restate as:

              I.       Whether A.S. received ineffective assistance of counsel.
              II.      Whether the juvenile court deprived A.S. of his right to
                       due process.
              III.     Whether the juvenile court abused its discretion by placing
                       A.S. in the custody of the Department of Correction.

                                Facts and Procedural History
[3]   On February 2, 2017, the State filed a delinquency petition against A.S. The

      State alleged A.S. was a delinquent child for committing acts at the age of

      fifteen that, if committed by an adult, would have amounted to operating a

      vehicle while intoxicated, a Class A misdemeanor; operating a vehicle while

      never having been licensed, a Class C misdemeanor; and failure to stop after an

      accident, a Class B misdemeanor. The State claimed A.S. drove while drunk,

      struck a utility pole, and fled the scene on foot.


[4]   On March 14, 2017, A.S. appeared in juvenile court and admitted he

      committed the acts described in the delinquency petition. The court ordered

      him to take a drug test during a break in the proceedings, and he tested positive

      for marijuana, amphetamines, and methamphetamine. A.S. also answered a

      Court of Appeals of Indiana | Memorandum Decision 17A-JV-3037 | July 3, 2018   Page 2 of 13
      drug and alcohol use questionnaire and indicated he was “unlikely” to quit

      using drugs. Tr. Vol. II, p. 21. The court determined A.S. was a delinquent

      child and placed him in the juvenile detention center (JDC) until he produced a

      clean drug screen, at which time he would be released to probation with

      electronic monitoring. Among other conditions of probation, the court ordered

      A.S. to: (1) complete an addictions assessment and follow all treatment

      recommendations; (2) participate in therapy; and (3) avoid unlawful behavior.


[5]   A.S. produced a clean drug screen on March 24, 2017, and was released from

      the JDC. On June 7, 2017, the juvenile court released A.S. from electronic

      monitoring at the request of A.S.’s case manager but kept A.S. on probation.


[6]   On June 23, 2017, A.S.’s probation officer filed with the juvenile court a request

      to modify A.S.’s placement. During a June 27, 2017 hearing, the officer

      testified that A.S. had tested positive for marijuana five times in two months

      and had canceled or missed several appointments for court-ordered drug

      counseling. Further, A.S. had showed up for one counseling appointment

      under the influence of marijuana and had further admitted to consuming

      alcohol the night before. A.S.’s mother had not attended any family counseling

      sessions. The State asserted that A.S. was not benefitting from being placed at

      home and requested that A.S. be returned to the JDC until an inpatient

      treatment center agreed to accept him. The court granted the State’s request

      and placed A.S. in the JDC pending placement in an inpatient facility.




      Court of Appeals of Indiana | Memorandum Decision 17A-JV-3037 | July 3, 2018   Page 3 of 13
[7]   On July 13, 2017, A.S.’s probation officer notified the juvenile court that the

      DePaul Academy (DePaul) had agreed to accept A.S. for its inpatient treatment

      program. The court ordered that A.S. be placed at DePaul. A.S. arrived at

      DePaul on July 20, 2017. Appellant’s App. Vol. 2, p. 70.


[8]   On November 16, 2017, A.S.’s probation officer reported to the juvenile court

      that A.S. had been discharged from DePaul for serious violations of the

      facility’s rules. Among other acts of misconduct, which we discuss in more

      detail below, DePaul employees discovered A.S. was helping to plan an escape

      from the facility. The plan involved potentially assaulting DePaul employees.

      DePaul employees reported that A.S. “makes zero effort in participating in any

      way” and “is making no progress in the program.” Id. at 80. Based on the

      information from DePaul, the State recommended modifying A.S.’s placement

      by sending him to the Indiana Department of Correction (DOC). The juvenile

      court ordered that A.S. be placed in the JDC pending adjudication of the State’s

      request to modify placement.


[9]   On November 20, 2017, the court held an evidentiary hearing on the State’s

      request to modify A.S.’s placement. At the end of the hearing, the court

      awarded wardship of A.S. to the DOC and issued an order to that effect on the

      same day. On December 20, 2017, the court issued an amended order placing

      A.S. in the DOC, recommending that he be placed in a “community based

      regional campus.” Id. at 99. The court identified the following reasons for

      modifying placement:

              1. Community Resources have been exhausted.

      Court of Appeals of Indiana | Memorandum Decision 17A-JV-3037 | July 3, 2018   Page 4 of 13
               2. Minor’s behavior is dangerous to the community and minor
                  requires the most restrictive placement available to the Court.
               3. Placement is in minor’s best interest because it will give the
                    minor the opportunity for more intensive treatment in a
                    secure setting.

       Id. This appeal followed.


                                     Discussion and Decision
                                       I. Assistance of Counsel
[10]   A.S. argues he received ineffective assistance of counsel during the November

       20, 2017 modification hearing. To establish ineffective assistance, a claimant

       must prove both elements of the test set forth in Strickland v. Washington, 466

       U.S. 668, 104 S. Ct. 2052, 80 L.Ed.2d 674 (1984). Timberlake v. State, 690

       N.E.2d 243, 259 (Ind. 1997). The claimant must show, first, that counsel’s

       actions fell below an objective standard of reasonableness, and second, that the

       substandard performance was so prejudicial as to deny the claimant a fair trial.

       Id. To establish prejudice, a claimant must demonstrate a reasonable

       probability that, but for counsel’s errors, the result of the proceeding would

       have been different. McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002). We can

       dispose of a claim of ineffective assistance upon the failure of either element.

       Walker v. State, 988 N.E.2d 1181, 1186 (Ind. Ct. App. 2013), trans. denied.


[11]   We presume counsel is competent. Johnson v. State, 674 N.E.2d 180, 184 (Ind.

       Ct. App. 1996), trans. denied. Evidence of isolated poor strategy, inexperience,




       Court of Appeals of Indiana | Memorandum Decision 17A-JV-3037 | July 3, 2018   Page 5 of 13
       or bad tactics will not support an ineffective assistance claim; instead, we

       evaluate counsel’s performance as a whole. Walker, 988 N.E.2d at 1186.


[12]   The State argues A.S. may not present a claim of ineffective assistance of

       counsel under the Strickland standard because the right to effective assistance of

       counsel, as set forth in Strickland, is grounded in criminal law, and juvenile

       delinquency proceedings are civil in nature.1 In S.T. v. State, 764 N.E.2d 632

       (Ind. 2002), the Indiana Supreme Court considered an appeal by a juvenile who

       claimed he had received ineffective assistance of counsel, and the Court

       squarely addressed the claim. Following precedent, we reject the State’s

       argument and turn to the merits of A.S.’s claim.


[13]   Attorney Kelly Stansbury represented A.S. throughout the juvenile court

       proceedings. A.S. argues that during the November 20, 2017 hearing, he

       testified that he did not think he should go to the DOC, but Attorney Stansbury

       effectively agreed with the State that placement at the DOC was the only

       appropriate outcome. Attorney Stansbury told the juvenile court, “with these

       violations, it’s really hard to recommend an alternative that’s not been tried and

       that’s kind of all we’re really left with other than the Department of

       Corrections, which hasn’t been tried.” Tr. Vol. II, p. 79. He further stated that

       other residential inpatient facilities would likely refuse to accept A.S. based on

       his record. Attorney Stansbury concluded, “unfortunately, I don’t know what



       1
        The State concedes that respondents in juvenile delinquency proceedings have a statutory right to counsel.
       See Ind. Code §§ 31-32-2-2 (1997), 31-32-4-1 (1997).

       Court of Appeals of Indiana | Memorandum Decision 17A-JV-3037 | July 3, 2018                    Page 6 of 13
       else to – to recommend.” Id. at 80. A.S. claims his attorney “failed to subject

       the prosecutor’s case to meaningful adversarial testing.” Appellant’s Br. p. 25.


[14]   Even if Attorney Stansbury’s statements to the juvenile court fell below an

       objective standard of reasonableness, A.S. must demonstrate prejudice. That is,

       A.S. must demonstrate a reasonable probability that if his attorney had argued

       against sending A.S. to the DOC, then the court would not have sent him there.


[15]   During his stint on probation A.S. established a record of noncompliance with

       the terms of probation, including committing new unlawful acts. When A.S.

       appeared in juvenile court on March 14, 2017, to admit to committing the acts

       alleged in the State’s petition of delinquency, he was under the influence of

       marijuana, amphetamines, and methamphetamines. He stated in a

       questionnaire that he was “unlikely” to quit using controlled substances. The

       court ordered A.S. to be confined in the JDC until he had a clean drug test and

       stated that he would then be released to probation with electronic monitoring.


[16]   A.S. initially performed well enough on probation that his probation officer

       asked to have the electronic monitoring removed, but his performance took a

       turn for the worse. He tested positive for marijuana on five occasions and was

       discharged from his outpatient treatment facility for missing appointments. On

       one occasion, A.S. showed up for an appointment under the influence of

       marijuana and admitted to consuming alcohol the night before. During the

       June 27, 2017 modification hearing, A.S. admitted to the court that he had used

       marijuana while on probation. Use of marijuana and consumption of alcohol


       Court of Appeals of Indiana | Memorandum Decision 17A-JV-3037 | July 3, 2018   Page 7 of 13
       as a minor are both new offenses. Further, A.S.’s counselors reported that he

       displayed “lack of motivation” and was uninterested in working on his

       substance abuse issues. Tr. Vol. II, p. 47.


[17]   Based on A.S.’s record of misconduct while on home placement, the court

       placed him at DePaul for inpatient drug and behavioral treatment. During an

       October 10, 2017 hearing, A.S.’s probation officer reported A.S. was

       “struggling” with “doing things on his own time and pushing the limits with

       staff about being able to accept redirection.” Id. at 62. The officer further stated

       that A.S. was “lacking in motivation.” Id.


[18]   After that hearing, A.S.’s misconduct intensified to the point that DePaul

       expelled him. He: (1) assisted in plotting an escape attempt that could have

       resulted in injury to DePaul employees; (2) tried to make alcohol in his room;

       (3) was involved in an altercation with another resident that resulted in injury to

       a DePaul employee; (4) failed to complete homework and was kicked out of

       group therapy for sleeping; (5) encouraged other residents to act out; and (6)

       attempted to share medicine with another resident. DePaul employees further

       reported that A.S. “makes zero effort in participating in any way” and “is

       making no progress in the program.” Appellant’s App. Vol. 2, p. 80. The

       juvenile court told A.S.:

               I’m making you a ward [of the DOC] because you attempted to
               run from placement, because staff was assaulted, because you
               made alcohol, I guess, in placement. You undermine the
               treatment of others, you cheeked medication and gave it to peers
               and that, too, put other people at risk of harm.


       Court of Appeals of Indiana | Memorandum Decision 17A-JV-3037 | July 3, 2018   Page 8 of 13
       Tr. Vol. II, p. 83.


[19]   A.S. failed to comply with the terms of probation while living at home and

       seeking treatment on an outpatient basis, and he further failed to comply with

       the terms of probation while confined in an inpatient treatment center. Clearly,

       he was unsuccessful in settings less restrictive than the DOC. In both settings,

       A.S. demonstrated a lack of interest in making the necessary changes in his life

       to avoid future misconduct. Further, he engaged in a pattern of misconduct

       and committed acts involving marijuana and alcohol that could have supported

       the filing of new delinquency petitions. We conclude from this extensive record

       that the juvenile court would have most likely sent A.S. to the DOC after the

       November 20, 2017 hearing even if A.S.’s counsel had urged the court to

       choose a less restrictive placement. A.S. has failed to demonstrate prejudice

       from his attorney’s decision not to challenge his placement at DOC, and his

       claim of ineffective assistance of counsel fails.


                                              II. Due Process
[20]   A.S. claims that his attorney’s decision not to argue against placement at the

       DOC violated his right to due process under the United States Constitution and

       the Indiana Constitution. Whether a party was denied due process is a question

       of law that we review de novo. Hillgoss v. State, 45 N.E.3d 1228, 1230 (Ind. Ct.

       App. 2015); D.G. v. S.G., 82 N.E.3d 342, 347 (Ind. Ct. App. 2017), trans. denied.


[21]   The Fourteenth Amendment bars states from depriving a person “of life,

       liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1.

       Court of Appeals of Indiana | Memorandum Decision 17A-JV-3037 | July 3, 2018   Page 9 of 13
       Article one, section twelve of the Indiana Constitution provides, in relevant

       part, “All courts shall be open, and every person, for injury done to him in his

       person, property, or reputation, shall have remedy by due course of law.” A.S.

       also cites to article one, section thirteen of the Indiana Constitution, which

       provides in relevant part: “In all criminal prosecutions, the accused shall have

       the right . . . to be heard by himself and counsel . . . .”


[22]   Although the due course of law clause differs from the Fourteenth

       Amendment’s Due Process Clause, we apply the same analysis to claims under

       either provision. Gingerich v. State, 979 N.E.2d 694, 710 (Ind. Ct. App. 2012),

       trans. denied. We investigate whether a deprivation of life, liberty or property by

       the state was “preceded by notice and an opportunity for hearing appropriate to

       the nature of the case.” Id. (quotation omitted). Due process generally

       includes: “representation by counsel, written notice of the claimed violations,

       disclosure of the opposing evidence, an opportunity to be heard and present

       evidence, and the right to confront and cross-examine witnesses in a neutral

       hearing before the trial court.” Cox v. State, 706 N.E.2d 547, 550 (Ind. 1999).


[23]   A.S.’s Fourteenth Amendment claim is intertwined with his claim of ineffective

       assistance of counsel. In Strickland, the United States Supreme Court stated,

       “The Constitution guarantees a fair trial through the Due Process Clauses, but

       it defines the basic elements of a fair trial largely through the several provisions

       of the Sixth Amendment, including the Counsel Clause . . . .” 466 U.S. at 684-

       85, 104 S. Ct. at 2063. A.S.’s due process argument focuses on his Sixth

       Amendment right to effective assistance of counsel: “When the Sixth

       Court of Appeals of Indiana | Memorandum Decision 17A-JV-3037 | July 3, 2018   Page 10 of 13
       Amendments [sic] rights to counsel are violated, fundamental fairness cannot

       be the result.” Appellant’s Br. p. 31. Having determined that A.S. is not

       entitled to prevail on his claim of ineffective assistance of counsel, we likewise

       conclude that he is not entitled to prevail on his Fourteenth Amendment claim.


[24]   Turning to A.S.’s due course of law clause claim, he cites to Edwards v. State,

       902 N.E.2d 821 (Ind. 2009), and Sanchez v. State, 749 N.E.2d 509 (Ind. 2001), in

       support. Those cases are factually distinguishable and addressed dissimilar due

       process claims. Edwards addressed whether mentally impaired persons have a

       broader right to self-representation under article one, section thirteen than those

       afforded under the federal constitution. Sanchez addressed whether article one,

       section twelve required the trial court to allow Sanchez to present a defense of

       voluntary intoxication. A.S.’s case is different from those two cases, and they

       do not mandate a conclusion that A.S. was deprived of due process under the

       Indiana Constitution. We conclude that his due process claims must fail.


                                 III. Modification of Placement
[25]   A.S. argues the trial court erred in placing him at the DOC because he

       acknowledged during the November 20, 2017 hearing that he had made poor

       choices and was trying to change his negative behavior. Once a juvenile court

       determines a child is a delinquent, the court must hold a dispositional hearing

       to consider, among other topics, “[a]lternatives for the care, treatment,

       rehabilitation, or placement of the child.” Ind. Code § 31-37-18-1 (1997).

       When the State seeks to modify a child’s placement, the juvenile court must


       Court of Appeals of Indiana | Memorandum Decision 17A-JV-3037 | July 3, 2018   Page 11 of 13
       also hold a hearing. Ind. Code § 31-37-22-3 (2009). In deciding where a child

       should be placed, the court must consider the following:

                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.

       Ind. Code § 31-37-18-6 (1997). Without question, the statute requires the

       juvenile court to select the least restrictive placement in most situations;

       however, the statute also permits a court to impose a more restrictive placement

       under certain circumstances. J.S. v. State, 881 N.E.2d 26, 28-29 (Ind. Ct. App.

       2008).


[26]   Subject to these statutory considerations, we review the trial court’s choice of

       disposition for an abuse of discretion. K.S. v. State, 849 N.E.2d 538, 544 (Ind.

       2006). 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




       Court of Appeals of Indiana | Memorandum Decision 17A-JV-3037 | July 3, 2018   Page 12 of 13
       the court, or the reasonable, probable, and actual deductions to be drawn

       therefrom. D.B. v. State, 842 N.E.2d 399, 404-05 (Ind. Ct. App. 2006).


[27]   We have already discussed A.S.’s extensive pattern of misconduct while on

       probation. Considering A.S.’s repeated and serious failures to comply with the

       terms of probation while living at home and while living in an inpatient

       treatment facility, the trial court acted well within its discretion in designating

       A.S. as a ward of the DOC. Less restrictive placements had been tried and had

       failed. See K.S., 849 N.E.2d at 544 (affirming juvenile court decision to place

       K.S. with DOC after repeated violations of the terms of probation; commitment

       to DOC was necessary to address juvenile’s counseling needs and the needs of

       the community).


                                                 Conclusion
[28]   For the reasons stated above, we affirm the judgment of the juvenile court.


[29]   Affirmed.


       Robb, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 17A-JV-3037 | July 3, 2018   Page 13 of 13
