MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                              FILED
this Memorandum Decision shall not be                                           Apr 25 2019, 6:00 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
Leanna Weissmann                                          Curtis T. Hill, Jr.
Lawrenceburg, Indiana                                     Attorney General of Indiana

                                                          Lyubov Gore
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                            IN THE
    COURT OF APPEALS OF INDIANA

E.M.,                                                     April 25, 2019
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          18A-JV-706
        v.                                                Appeal from the Lawrence Circuit
                                                          Court
State of Indiana,                                         The Honorable Andrea K.
Appellee-Plaintiff                                        McCord, Judge
                                                          Trial Court Cause Nos.
                                                          47C01-1607-JS-227, 47C01-1509-
                                                          JD-362



Altice, Judge.


                                          Case Summary


Court of Appeals of Indiana | Memorandum Decision 18A-JV-706 | April 25, 2019                       Page 1 of 15
[1]   E.M. appeals the trial court’s order imposing costs and ordering his parents to

      reimburse expenses totaling $7997. E.M. argues that the trial court abused its

      discretion in levying costs without a hearing and without consideration of

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

      reimbursement served the interest of justice.


[2]   We reverse and remand.


                                        Facts & Procedural History


[3]   E.M. was born on January 13, 2001, and his now-divorced parents share

      responsibility for him. On July 14, 2015, E.M., then fourteen years old,

      intentionally damaged the property of another without that person’s consent.

      On September 8, 2015, E.M. left school without his father’s permission,

      knowing that his father wanted him to be there. On September 17, 2015, E.M.

      knowingly exerted unauthorized control over the property of the Thornton

      Teen Center with intent to deprive the center of the use or value of the property.

      Based on these incidents, on September 28, 2015, in Cause No. 47C01-1509-

      JD-362 (JD-362), the State filed a delinquency petition alleging that E.M.

      committed Class B misdemeanor criminal mischief if committed by an adult,

      the status offense of runaway, and Class A misdemeanor theft if committed by

      an adult. Due to E.M.’s behavior pending the dispositional hearing, E.M.’s

      family decided to place E.M. in the Columbus Behavioral Treatment Center on

      November 3, 2015, where he remained until February 26, 2016. At a hearing

      on April 25, 2016, E.M. admitted to the criminal mischief and runaway


      Court of Appeals of Indiana | Memorandum Decision 18A-JV-706 | April 25, 2019   Page 2 of 15
      allegations, and the theft allegation was dismissed. E.M. was adjudicated a

      delinquent and placed on supervised probation.


[4]   On July 5, 2016, E.M. left home without his father’s permission and did not

      return after his father asked him to. As a result of this incident, the State filed a

      second delinquency petition under Cause No. 47C01-1607-JS-227 (JS-227) for

      the status offense of runaway. E.M. was placed on electronic monitoring

      pending disposition of the case. On July 14, 2016, E.M. travelled to a location

      not authorized in writing by the home detention supervising agency. For this

      incident, the State filed a third delinquency petition under Cause No. 48C01-

      1607-JD-233 (JD-233), alleging that E.M. committed the offense of

      unauthorized absence from home detention, a Class A misdemeanor if

      committed by an adult. The State also filed a petition to modify E.M.’s

      probation in JD-362 based on the filing of the delinquency petitions in JS-227

      and JD-233.


[5]   On July 25, 2016, the juvenile court held a hearing with regard to all

      outstanding matters. During this hearing, E.M.’s father requested that a public

      defender be appointed to represent E.M., which the trial court granted. The

      court found E.M. to be a flight risk and therefore ordered that he be detained at

      the Jackson County Juvenile Detention Center (JCJDC). E.M. remained at the

      JCJDC until August 3, 2016, at which time he was transferred to the

      Logansport Juvenile Correctional Facility for a comprehensive evaluation.




      Court of Appeals of Indiana | Memorandum Decision 18A-JV-706 | April 25, 2019   Page 3 of 15
      E.M. was evaluated from August 3 through August 22, 2016, and a report was

      submitted to the court. 1 E.M. was then returned to the JCJDC.


[6]   On September 1, 2016, pursuant to an agreement with the State, E.M. admitted

      to the allegation in JS-227 and admitted, in part, to the petition to modify

      probation in JD-362. In exchange, the State dismissed the allegation in JD-233.

      The juvenile court accepted E.M.’s admissions. The court also approved the

      agreement of the parties that E.M. be released to his father and be placed on

      electronic monitoring until the dispositional hearing. At the conclusion of the

      September 22, 2016 dispositional hearing, the court continued E.M. on

      supervised probation and also placed him into the juvenile problem-solving

      court in Lawrence County. At this hearing, the juvenile court informed E.M.’s

      parents about detention costs, explaining:


              There are detention costs owed as a result of the child spending
              seventeen (17) days in detention. The rate is one hundred dollars
              ($100.00) a day to care for the child there. Total owed is one
              thousand seven hundred dollars ($1,700.00). Those costs are
              now ordered to be paid to the Lawrence County Clerk’s Office
              and shall be paid before the conclusion of these cases or before
              the child’s released from his probation, unless the Court modifies
              the orders.




      1
       It is noted in the report that E.M.’s father was employed at Pizza Hut and Cosner’s Ice and that E.M.’s
      mother was employed at Garden Villa. E.M. reported that his family had enough money to meet their basic
      health and comfort needs.

      Court of Appeals of Indiana | Memorandum Decision 18A-JV-706 | April 25, 2019                Page 4 of 15
      Transcript Supplemental at 65-66. The court ordered E.M.’s parents to pay for all

      fees and costs “deemed appropriate by th[e] Court.” Id. at 68. E.M.’s mother

      and father were also presented with the written terms and conditions of E.M.’s

      participation in the problem-solving court, which required that E.M. pay a

      $240.00 user fee at a rate of $20.00 per month and an administrative fee of

      $50.00. E.M.’s mother and father were both represented by counsel and did not

      raise any objections or concerns about the fees and costs associated with the

      problem-solving court and signed the terms and conditions as presented to

      them.


[7]   Over the next few months, there were short periods when E.M. was compliant

      with the court’s directives, but numerous periods when he engaged in negative

      behavior at school and at home, including poor academics due to missing

      school assignments, violating the rules of home detention, engaging in a

      domestic dispute that resulted in police being called, using his father’s debit

      card without permission, violating curfew, and violating multiple rules of the

      teen center where he was ultimately placed. As a result of his poor behavior, on

      January 12, 2017, the State filed a petition for modification of the dispositional

      decree, and the juvenile court held a hearing the same day. At the time, E.M.

      was being detained at the JCJDC. Pursuant to an agreement between the

      parties, the juvenile court ordered E.M. to be placed at the Jackson County

      Juvenile Group Home for an indefinite period of time, with periodic review

      hearings. The juvenile court made it clear that E.M. was “still considered a

      participant” with the problem-solving court. Id. at 72.


      Court of Appeals of Indiana | Memorandum Decision 18A-JV-706 | April 25, 2019   Page 5 of 15
[8]   At the conclusion of the January 12 hearing, the court addressed the matter of

      “outstanding fees,” which at that time totaled $3062.00. Id. at 74. The court

      inquired as to both mother’s and father’s ability to pay the costs incurred.

      E.M.’s mother informed the court that she had full-time employment at White

      River Lodge and picked up extra hours at Garden Villa. The juvenile court

      asked her how much she was able to pay toward the fee, and she informed the

      court that she could afford $20.00 a week. The juvenile court then asked E.M.’s

      father about his ability to pay, and he answered:


              Your Honor, currently, you know, with being in the problem
              solving court – adult problem solving court – we have done a
              budget and they have got me currently set up on five ($5.00) a
              week until my finances come through. I am able to show proof
              to the Court if I need to. I am, like, five hundred dollars
              ($500.00) negative monthly. So, it’s kind of a bare minimum
              with that Court, too.


      Id. at 76. The juvenile court then ordered E.M.’s mother to pay no less than

      $20.00 per week and E.M.’s father to pay no less than $5.00 per week toward

      the fees and costs.


[9]   Soon after E.M. was placed at the group home, he was assaulted by other teens

      on two separate occasions. The two offending teens were removed from the

      facility and staffing changes were made to ensure E.M.’s safety. In light of the

      changes, the juvenile court continued E.M.’s placement in the group home. On

      March 9, 2017, the State sought a change of placement due to E.M.’s ongoing

      behavioral needs and safety issues, and the court ordered that he be detained at


      Court of Appeals of Indiana | Memorandum Decision 18A-JV-706 | April 25, 2019   Page 6 of 15
       the JCJDC. On March 21, 2017, the court considered alternatives for E.M.’s

       placement and ultimately ordered that E.M. be placed at the Wernle Youth

       Treatment Center in Richmond. E.M. successfully completed the program at

       Wernle and earned his GED. At a review hearing held on August 31, 2017, the

       juvenile court ordered E.M. released to his father and that he be advanced to

       phase 2 of the problem-solving court.


[10]   E.M. reengaged with the problem-solving court and for the next several

       months, he was mostly compliant with all requirements. Things took a turn for

       the worse in early December 2017, when E.M. was involved in an altercation

       during which a window was broken and E.M. punched his father. Police were

       summoned, but E.M. left before they arrived, leading to the filing of a

       delinquency petition for the status offense of runaway. On December 19, 2017,

       E.M. was again detained at the JCJDC. On December 21, 2017, the State filed

       a motion for termination of E.M. from the problem-solving court based on a

       multitude of violations. At a December 26, 2017 detention hearing, the juvenile

       court ordered that E.M. be released to his father, but that he be placed on

       electronic home monitoring.


[11]   On February 7, 2018, the State filed a request to take E.M. into custody due to

       non-compliance with home detention and ongoing behavioral problems. At a

       hearing the following day, E.M.’s father told the court that he was not willing

       to take E.M. back into his home. The juvenile court thus ordered E.M. to be

       detained at the JCJDC. At a dispositional hearing on February 12, 2018, E.M.

       admitted to the allegations against him and agreed to termination of his

       Court of Appeals of Indiana | Memorandum Decision 18A-JV-706 | April 25, 2019   Page 7 of 15
       participation in the problem-solving court. The juvenile court then placed E.M.

       in the Department of Correction (the DOC). At the conclusion of the hearing,

       the court noted that there would be periodic review hearings on “money issues”

       as the case moved forward and set a review hearing for April 19, 2018. 2

       Transcript Vol. 2 at 69.


[12]   E.M. filed a notice of appeal on April 3, 2018. On May 14, 2018, E.M. filed a

       motion with this court to hold his appeal in abeyance so the case could be

       remanded for a hearing and order determining costs and fees owed. On May

       30, 2018, this court issued an order granting E.M.’s request to hold the appeal

       in abeyance and remanded to the trial court with directions to enter a final

       order on costs. Complying with this court’s directive, the juvenile court entered

       a final order on costs on June 8, 2018. The court determined the outstanding

       amount owed by E.M.’s father and mother for various fees and costs

       attributable to E.M.’s detention totaled $7997. 3 E.M. now appeals. Additional

       facts will be provided as necessary.


                                              Discussion & Decision




       2
         It is unclear whether the juvenile court held a review hearing as scheduled for April 19, 2018. The
       chronological case summary has an entry for April 19, 2018 that references “Review Hearing (1:00 PM)” and
       indicates that an order was issued on February 15, 2018 along with a notation of “Costs and fees.” Appellant’s
       Appendix Vol. Two at 14. With his notice of appeal, E.M. requested transcripts of certain hearings, but did not
       list April 19, 2018. The State filed a separate motion requesting transcripts for the omitted hearings and
       specifically identified April 19, 2018. The juvenile court prepared and submitted a supplemental transcript,
       but such does not include a transcript dated April 19, 2018.
       3
           E.M.’s father and mother had already paid a combined amount of $1328.


       Court of Appeals of Indiana | Memorandum Decision 18A-JV-706 | April 25, 2019                     Page 8 of 15
[13]   On appeal, E.M. argues that the juvenile court erred in ordering his parents to

       reimburse costs and fees totaling $7997 without a hearing and without

       consideration of statutory factors. The State argues that the court was not

       required by statute to make specific findings and that the court did not abuse its

       discretion in ordering E.M.’s parents to pay a reasonable weekly amount

       toward his detention costs. The State also asserts claims of waiver, invited

       error, and mootness.


[14]   A delinquent child’s parents are financially responsible for any services ordered

       by the court and must reimburse the county unless the court determines that

       they are unable to pay for them, payment would be an unreasonable hardship

       on the family, or justice would not be served. Matter of Garrett, 631 N.E.2d 11,

       13 (Ind. Ct. App. 1994), trans. denied. The right to reimbursement, however, is

       not unlimited, and the trial court must comply with the statute. In re M.L.K.,

       751 N.E.2d 293, 298 (Ind. Ct. App. 2001) (citing Washburn v. Tippecanoe Cty.

       Office of Family & Children, 726 N.E.2d 361, 364 n. 3 (Ind. Ct. App. 2000)).


[15]   The reimbursement statute, Ind. Code § 31-40-1-3, provides, in pertinent 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.


                                                        ***



       Court of Appeals of Indiana | Memorandum Decision 18A-JV-706 | April 25, 2019   Page 9 of 15
               [T]he 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.


       We have held that the juvenile and/or the juvenile’s parents bear the burden of

       presenting evidence to support the findings that would relieve them of the

       obligation to reimburse. See J.W. Hendricks Cty. Office of Family & Children, 697

       N.E.2d 480, 483 (Ind. Ct. App. 1998) (affirming an order of reimbursement

       where “the juvenile court found that the [parents] ‘failed to carry their burden of

       proof to show that they are unable to pay or that justice would not be served by

       ordering payment from the parents’”).


[16]   Over twenty years ago, this court examined the reimbursement statute in In re

       the Matter of C.K., 695 N.E.2d 601 (Ind. Ct. App. 1998), trans. denied. In that

       case, C.K.’s father appealed the trial court’s order that he reimburse the county

       for $52,276, the costs of C.K.’s out-of-home placement in various facilities after

       being adjudged delinquent. After reviewing the statute and concluding that

       “the OFC clearly has the right to seek reimbursement by the child’s parents for

       the costs of any services provided to the delinquent child,” we noted that the

       OFC’s right to do so is not unlimited, and the trial court must comply with the

       statute’s requirements. Id. at 605. Because there was no evidence in the record

       that the trial court inquired into C.K.’s parents’ ability to pay $52,276 or

       whether such an order would serve the interests of justice, we reversed the trial


       Court of Appeals of Indiana | Memorandum Decision 18A-JV-706 | April 25, 2019   Page 10 of 15
       court’s order and remanded the matter for reconsideration. In doing so, we

       noted that “[s]ound public policy dictates that the court consider the factors laid

       out in [the statute] and state its findings thereon before placing such a large

       financial burden on a delinquent child’s parents.” Id.; see also M.Q.M. v. State,

       840 N.E.2d 441 (Ind. Ct. App. 2006) (accepting the argument that juvenile

       court improperly ordered delinquent child’s parents to pay fees without

       inquiring into their ability to pay); M.L.K., 751 N.E.2d at 298 (adopting the

       C.K. approach of requiring the juvenile court to consider the statutory factors

       and state its findings before ordering parents to reimburse over $20,000); Wayne

       v. Wells Cty. Dep’t of Family & Children, 751 N.E.2d 293 (Ind. Ct. App. 2001)

       (holding that the legislature intended to include the ability to pay inquiry into

       the statute and therefore, juvenile court must inquire into ability to pay before

       ordering payment of costs and fees for juvenile’s detention).


[17]   More recently, in J.T. v. State, 111 N.E.3d 1019 (Ind. Ct. App. 2018), trans.

       denied, 4 this court addressed whether the juvenile court abused its discretion in

       ordering the juvenile’s mother to reimburse detention costs totaling $7463

       without making express findings as to the statutory factors. After J.T.’s

       participation in the problem-solving court was terminated a second time, he

       was committed to the DOC. Because J.T.’s father was incarcerated, the

       juvenile court held a review hearing on fees for J.T.’s mother and informed her




       4
         Our Supreme Court denied transfer in J.T. by a vote of 3-2. Justice David dissented from the denial of
       transfer with a separate opinion in which Justice Goff joined.

       Court of Appeals of Indiana | Memorandum Decision 18A-JV-706 | April 25, 2019                   Page 11 of 15
       of the total costs for J.T.’s detention. J.T.’s mother specifically stated that she

       could pay $20 a month, and the juvenile court ordered her to pay such amount

       toward the amount owed.


[18]   On appeal, J.T. relied on C.K. and M.L.K. in support of his argument that the

       juvenile court abused its discretion in ordering his mother to pay costs and fees

       attributable to his detention because the court did not make any findings

       regarding the statutory factors. The majority in J.T. distinguished C.K. and

       M.L.K., in part, on grounds that those cases involved financial burdens that

       were much larger than that at issue in J.T.’s case. The J.T. majority also stated

       that if J.T.’s parents “considered the balance or the monthly payments to be a

       ‘large financial burden,’ they were free to say so, but did not.” Id. at 1025. The

       majority “decline[d] to declare an amount beyond which explicit findings must

       be made in cases such as this,” but concluded that “the balance in this case falls

       below that threshold.” Id. In short, the majority concluded that the juvenile

       court did not abuse its discretion.


[19]   As expected, E.M. directs us to C.K. and its progeny, while the State asserts that

       J.T. supports a finding that the juvenile court did not abuse its discretion. We

       are persuaded by the former cases.


[20]   As the State points out, the juvenile court did inquire at one time of E.M.’s

       parents as to their individual ability to pay costs. The record reveals that E.M.’s

       parents are both employed but does not indicate their earning capacities. On

       the surface, it would appear that their jobs are not of high-income potential.


       Court of Appeals of Indiana | Memorandum Decision 18A-JV-706 | April 25, 2019   Page 12 of 15
       Indeed, when the court inquired, E.M.’s mother stated that she had the ability

       to afford $20 a week, while E.M.’s father explained that he was then operating

       on a negative budget and suggested that he could pay $5 a week toward the

       costs attributable to services for his son. 5 It is significant, however, that the

       hearing at which such matters were addressed was in January 2015, nearly

       eighteen months before the court issued the final order on costs. In that time,

       E.M. was in and out of detention centers and the total fees and costs

       attributable to his detention more than doubled.


[21]   The juvenile court noted at the hearing when E.M.’s participation with the

       problem-solving court was terminated the need for further review hearings to

       address “money issues.” Transcript Vol. 2 at 69. From the record before us,

       there appears to have been no further review hearings. 6 Rather, the court

       simply issued a final order that E.M.’s parents were to reimburse approximately

       $8000 in costs. While this amount is not as sizable as the total costs

       accumulated in some of the referenced cases, we do not find this to be

       dispositive.


[22]   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



       5
        We reject the State’s arguments that in agreeing to pay a nominal amount toward costs nearly eighteen
       months before the final order on costs amounts to waiver of the issue on appeal or constitutes invited error.
       6
         We reject the State’s argument that because the court indicated that there would be review hearings as to
       the matter of reimbursement for costs attributable to E.M.’s detention that the issue presented is moot. There
       appears to have been no further review hearings and the trial court has now issued a final order on costs.
       With the filing of the notice of appeal, the juvenile court lost jurisdiction to further consider such matters.

       Court of Appeals of Indiana | Memorandum Decision 18A-JV-706 | April 25, 2019                     Page 13 of 15
       “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. See C.K., 695 N.E.2d at 605 (“[s]ound public policy dictates that the

       court consider the factors laid out in [the reimbursement statute] and state its

       findings thereon before placing such a large financial burden on a delinquent

       child’s parents”); M.L.K., 751 N.E.2d at 298-99 (“the approach adopted in C.K.

       is more consistent with the legislative purpose in including the ability to pay

       inquiry in the statute”).


[23]   Here, in light of the tenuous financial position of E.M.’s parents as well as the

       extended period of E.M.’s detention, we think it was incumbent on the juvenile

       court to have inquired again into whether E.M.’s parents were unable to pay or

       whether the interests of justice would be served by ordering them to reimburse

       additional costs of nearly $8000. The brief inquiry more than eighteen months

       prior and when costs were nearly half of the final total did not provide a

       sufficient basis on which to consider the statutory requirements to support the

       juvenile court’s final order on costs.


[24]   As Judge Bailey notes in his dissent in J.T., the juvenile court is not constrained

       to order parents to pay “all or nothing.” 111 N.E.3d at 1028. The juvenile



       Court of Appeals of Indiana | Memorandum Decision 18A-JV-706 | April 25, 2019   Page 14 of 15
       court is in the best position to consider the ability of E.M.’s parents to pay costs

       and determine an amount that that is commensurate with justice.


[25]   Judgment reversed and remanded for further proceedings.


       Najam, J. and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-JV-706 | April 25, 2019   Page 15 of 15
