MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                     FILED
this Memorandum Decision shall not be                                 Mar 28 2018, 7:26 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
Janette E. Surrisi                                       Curtis T. Hill, Jr.
Wyland, Humphrey & Clevenger, LLP                        Attorney General of Indiana
Plymouth, Indiana
                                                         Justin F. Roebel
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

C.T.,                                                    March 28, 2018
Appellant-Respondent,                                    Court of Appeals Case No.
                                                         50A03-1711-JV-2794
        v.                                               Appeal from the Marshall Circuit
                                                         Court
State of Indiana,                                        The Honorable Curtis D. Palmer,
Appellee-Petitioner                                      Judge
                                                         Trial Court Cause No.
                                                         50C01-1612-JD-52



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 50A03-1711-JV-2794 | March 28, 2018          Page 1 of 12
[1]   C.T. appeals the amended dispositional order making him a ward of the

      Department of Correction (DOC). Among other things, C.T. raises the

      following arguments on appeal: (1) the original dispositional order is void

      because of the circumstances surrounding the finding of delinquency; (2) the

      amended dispositional order is erroneous because he was not afforded due

      process with respect to the change of placement from a residential facility to the

      DOC; and (3) the trial court erred by making him a ward of the DOC. Finding

      no error, we affirm.


                                                     Facts
[2]   On December 12, 2016, the State filed a petition alleging that then-thirteen-

      year-old C.T. had committed acts that would have been child molesting,

      intimidation, domestic battery, and criminal mischief, had they been committed

      by an adult; the State later added another allegation of domestic battery and an

      allegation of battery.


[3]   At a March 20, 2017, hearing, C.T. admitted to two counts of domestic battery

      and one count of battery in exchange for the dismissal of the remaining charges.

      The parties also agreed that C.T. would be placed in the sexually maladaptive

      behavior program at White’s Residential Treatment Center. A judge pro

      tempore presided over that hearing. After making all required advisements and

      establishing a factual basis for the admitted allegations, the judge pro tempore

      found “that a sufficient factual basis exists for the juvenile delinquency” and

      indicated that he would enter an order to that effect. Mar. 20 Hrg. Tr. p. 9.


      Court of Appeals of Indiana | Memorandum Decision 50A03-1711-JV-2794 | March 28, 2018   Page 2 of 12
      The same day, the presiding judge—who did not preside over the hearing—

      entered an order finding C.T. “to be a delinquent juvenile.” Appellant’s App.

      Vol. II p. 114-17.


[4]   At C.T.’s first delinquency review hearing on June 19, 2017, the residential

      facility reported that C.T. was exhibiting significant behavioral problems. He

      had committed a “Major Offense” of “Extreme Disrespect,” a “Major Offense”

      of “Defiant Behavior,” and a “Maximum Offense” of assault on a peer. Id. at

      133.


[5]   At C.T.’s second review hearing on September 25, 2017, the residential facility

      reported that C.T. had accumulated “14 major offenses and 2 maximum

      offenses” since starting the program. Id. at 186. According to the report, C.T.’s

      behavior was worsening. For example, C.T. was observed exchanging sexually

      explicit notes with a female peer and attempting to touch a male peer in a

      sexual manner. The facility stated that if C.T. could not learn to regulate his

      behavior, treatment there would not be effective, warning that his placement

      there would end if his behavior did not improve.


[6]   On October 20, 2017, the probation department notified the juvenile court that

      C.T. would have to leave White’s within thirty days because of continuing

      behavioral issues, and the juvenile court held a review hearing on the issue on

      October 30. At that hearing, the probation department informed the juvenile

      court that C.T. was left with two placement options: the DOC, which has a

      “highly successful sex offender program” at the Pendleton Juvenile Facility, or


      Court of Appeals of Indiana | Memorandum Decision 50A03-1711-JV-2794 | March 28, 2018   Page 3 of 12
the Maples Unit at Oaklawn, which is a treatment facility similar to White’s.

The probation department believed that the Oaklawn residential program

would not meet C.T.’s needs because it is so similar to the program at White’s

that he had just failed. C.T.’s mother testified that she did not believe the DOC

would be a good environment for C.T. and asked that he be placed in Oaklawn;

C.T. made the same request. Ultimately, the juvenile court agreed with

probation that the DOC would be the most appropriate placement:


        . . . In life, to get somewhere you get to where you earn your
        place, and you have not done anything to earn anything at this
        point. Pretty much everything I have heard from White[’]s about
        you has been negative. You come in today and say, well in the
        past few days, or in the past few weeks, I’ve tried to do better; it’s
        too little too late. . . .


        So, I’m gonna send you to the Pendleton program because I
        think the disciplinary structure there is a little firmer than what
        was available at White[’]s. And I think White[’]s to Oaklawn is
        kind of a parallel move from one, essentially . . . less structured
        environment, to another less structured environment. . . . So,
        you’ll have your chance to earn your way either home or to a less
        restrictive placement, by how you do at the Pendleton program.


Oct. 30 Hrg. Tr. p. 9-11. The amended dispositional order entered following

this hearing states as follows: “Pursuant to (IC 31-37-19-6) (31-37-19-9) [sic],

the Court now awards wardship of the child to the [DOC] for housing in any

correctional facility for children.” Appellant’s App. Vol. II p. 18. C.T. now

appeals.




Court of Appeals of Indiana | Memorandum Decision 50A03-1711-JV-2794 | March 28, 2018   Page 4 of 12
                                   Discussion and Decision
                                    I. Dispositional Orders
[7]   C.T. first takes aim at the dispositional orders. First, he argues that the initial

      dispositional order is void because of the circumstances surrounding the

      delinquency finding. Second, he argues that the amended dispositional order is

      invalid because he was not afforded due process with respect to the change of

      placement.


[8]   When a person under the age of eighteen commits an act that would be a

      criminal offense if committed by an adult, the person may be adjudicated a

      delinquent child. Ind. Code §§ 31-37-1-1, -2. After making a delinquency

      finding, the juvenile court enters a dispositional decree providing for the

      placement of the child and other sanctions or treatment, all of which is intended

      to promote rehabilitation. J.D. v. State, 853 N.E.2d 945, 947 (Ind. 2006).


                             A. Initial Delinquency Finding
[9]   C.T. contends that the juvenile court’s initial finding of delinquency is void

      because the presiding judge, who did not preside over the actual hearing,

      entered the order finding delinquency. Initially, we note that this claim of error

      should have been raised long ago. C.T. did not object when the judge pro

      tempore made an oral finding of delinquency, nor did he object when the

      presiding judge entered the initial dispositional order. As such, he has waived

      this issue.



      Court of Appeals of Indiana | Memorandum Decision 50A03-1711-JV-2794 | March 28, 2018   Page 5 of 12
[10]   C.T. responds that he is entitled to raise this argument at this late date because

       in his opinion, the initial dispositional order is void ab initio. A void judgment

       can be attacked at any time, even collaterally. J.C. v. J.B., 991 N.E.2d 110, 115

       (Ind. 2013) (drawing contrast between void judgments and voidable judgments,

       which will stand unless attacked on direct appeal).


[11]   We will briefly address C.T.’s argument. At the hearing leading up to the initial

       dispositional order, C.T. admitted to committing three delinquent acts and to

       being a delinquent child. At the end of that hearing, the judge pro tempore

       orally found C.T. to be a delinquent child. And later that same day, the

       presiding judge entered a dispositional order finding, in writing, that C.T. is a

       delinquent child.


[12]   C.T. directs our attention to well-established caselaw that the judge who hears

       evidence at an evidentiary hearing should be the same judge who enters the

       final judgment:


               A party is entitled to a determination of the issues by the judge
               who heard the evidence, and, where a case is tried to a judge who
               resigns before determining the issues, a successor judge cannot
               decide the issues or enter findings without a trial de novo. When a
               successor judge who did not hear the evidence or observe the
               witnesses’ demeanor attempts to weigh evidence and make
               credibility determinations, the judge “is depriving a party of an
               essential element of the trial process.”


       In re I.P., 5 N.E.3d 750, 752 (Ind. 2014) (quoting In re D.P., 994 N.E.2d 1228,

       1232 (Ind. Ct. App. 2013)) (internal citations omitted). Here, however, there


       Court of Appeals of Indiana | Memorandum Decision 50A03-1711-JV-2794 | March 28, 2018   Page 6 of 12
       was no evidence to weigh; there was no witness demeanor to evaluate; and

       there were no credibility determinations to make. C.T. admitted that he was

       delinquent, the judge pro tempore agreed, and the presiding judge

       memorialized the admission and the findings in writing.


[13]   C.T.’s quarrels with this process elevate form over substance to an untenable

       degree. It is readily apparent that every step of this process confirmed the

       finding of delinquency, and we find that the initial dispositional order is neither

       void nor voidable. We decline to reverse on this basis.1


                                             B. Due Process
[14]   C.T. next directs our attention to the hearing at which the juvenile court

       modified his placement to be the DOC. He argues that the trial court failed to

       follow the steps dictated by the Indiana Code when modifying the dispositional

       order, thereby violating his due process rights.


[15]   At the September 25, 2017, delinquency review hearing, it was acknowledged

       that C.T.’s placement with White’s was in peril because of his behavior. At the

       conclusion of the hearing, the trial court scheduled the next review hearing in

       approximately six months, but stated that it was likely that the case would need




       1
         We likewise decline to reverse merely because the amended dispositional order, which made C.T. a ward of
       the DOC, inadvertently omits the delinquency finding.

       Court of Appeals of Indiana | Memorandum Decision 50A03-1711-JV-2794 | March 28, 2018         Page 7 of 12
       to be called in for a review hearing much earlier than that, possibly within the

       next thirty days, if C.T.’s behavior did not improve.


[16]   Indeed, on October 20, 2017, the probation department filed with the juvenile

       court a notice it had received that White’s was terminating C.T.’s placement

       there and giving the parties and the court thirty days to relocate him.

       Appellant’s App. Vol. II p. 192. On October 25, 2017, the probation

       department filed a motion for a review hearing; the juvenile court granted the

       motion and held the hearing on October 30. At that hearing, the probation

       department recommended that C.T. be made a ward of the DOC for placement

       and evaluation.


[17]   C.T. is correct that there are certain procedures mandated by statute. Before a

       periodic review hearing, the probation department is required to prepare a

       report on the progress made in implementing the dispositional decree. Ind.

       Code § 31-37-21-1(a). Also, if modification of the dispositional decree is

       requested, the probation department is required to prepare a modification

       report. Id. at -1(c); see also I.C. § 31-37-22-4 (stating that the report shall be

       prepared “if the state or any person other than the child or the child’s parent,

       guardian, guardian ad litem, or custodian is requesting the modification”).


[18]   Here, while the October 30 hearing was styled as a review hearing, in reality, it

       was an emergency hearing regarding C.T.’s placement. The probation

       department had filed with the juvenile court a notice from White’s that it would

       be terminating C.T.’s placement there in thirty days. Therefore, the juvenile


       Court of Appeals of Indiana | Memorandum Decision 50A03-1711-JV-2794 | March 28, 2018   Page 8 of 12
       court and all parties were aware of the content and purpose of the hearing.

       Because of the compressed timeline and the urgency of the problem that needed

       to be solved, the parties did not have the luxury of taking the time to prepare

       and file reports and recommendations. Instead, everyone did the best they

       could by holding a hearing, at which C.T. and his mother were present and

       afforded the opportunity to speak and advocate for their preferred outcome; the

       probation department was likewise able to present the juvenile court with

       options and recommendations. In our view, this process protected the rights of

       C.T. even as it dealt with the reality of a need to move quickly. We decline to

       reverse on this issue.2


                                          II. DOC Placement
[19]   Next, C.T. argues that the juvenile court’s decision to place him in the DOC

       was erroneous. A juvenile court is afforded wide latitude and great flexibility in

       its dealings with juveniles. J.S. v. State, 881 N.E.2d 26, 28 (Ind. Ct. App. 2008).

       The specific disposition of a delinquent child is within the sound discretion of

       the juvenile court, and we will reverse only if the order is clearly erroneous and

       against the logic and effect of the facts and circumstances before the court. Id.




       2
         C.T. also argues that he received the ineffective assistance of counsel because counsel failed to appear at
       two review hearings and failed to make an argument at the hearing at which C.T.’s placement was modified
       to the DOC. Without deciding that, in fact, juveniles in delinquency proceedings are entitled to application
       of the same assistance of counsel standards as those applied in adult criminal cases, we note that we find no
       likelihood that if counsel had behaved differently, there would have been a different result. Either way,
       C.T.’s behavior at White’s left the juvenile court with two options: one that was similar to the placement
       C.T. had already failed, and the DOC. Therefore, regardless of the vigorousness of counsel’s argument to the
       court, the result—placement in the DOC—would have been the same.

       Court of Appeals of Indiana | Memorandum Decision 50A03-1711-JV-2794 | March 28, 2018           Page 9 of 12
       at 28. The court’s discretion is subject to the statutory considerations of the

       child, the safety of the community, and the policy of favoring the least harsh

       disposition. Id.


[20]   C.T. directs our attention to evidence in the record that service providers, the

       probation officer, C.T. and his mother, and the juvenile court all had concerns

       about C.T. being placed in the DOC. And we certainly acknowledge those

       concerns, as did the juvenile court. But there was also evidence in the record

       that C.T. failed to change his behavior during his placement at White’s, despite

       multiple chances and months to do so. His behavior at that facility was so

       problematic that it limited the facility’s ability to provide him with effective

       treatment. At the hearing, the juvenile court was presented with two options

       for C.T. after White’s asked him to leave: either the DOC, which has a highly

       effective sex offender program for juveniles, or Oaklawn, which offers a

       program that is substantially similar to the one that he failed at White’s. Under

       these circumstances, we cannot say that the trial court erred by finding that,

       even given its concerns about placing C.T. in the DOC, that program offered

       the best option for C.T.’s future rehabilitation.3




       3
         We also disagree with C.T.’s contention that the juvenile court was more focused on punishment than
       rehabilitation. The court’s comments about having to earn one’s place in life were directed to C.T.’s
       behavior at White’s, explaining that because he had behaved so poorly in that facility, he had not shown an
       ability to behave appropriately at the similar Oaklawn facility. We do not find these comments to be
       problematic.

       Court of Appeals of Indiana | Memorandum Decision 50A03-1711-JV-2794 | March 28, 2018          Page 10 of 12
[21]   C.T. also finds fault with the portion of the juvenile court’s order that provides

       as follows: “Pursuant to (IC 31-37-19-6) (31-37-19-9) [sic], the Court now

       awards wardship of the child to the [DOC] for housing in any correctional

       facility for children.” Appellant’s App. Vol. II p. 18. C.T. correctly notes that

       Indiana Code section 31-37-19-9, which applies to juveniles who have been

       found delinquent for acts that would be murder, kidnapping, rape, criminal

       deviate conduct, or certain types of robbery, does not apply to this case. It is

       apparent, however, that the order is merely a form order with multiple options

       and there was an inadvertent failure to cross out the inapplicable statute. 4

       C.T.’s wardship was imposed pursuant to Indiana Code section 31-37-19-6,

       which provides that if a child is a delinquent child, the juvenile court may,

       among other things, award wardship to the DOC for housing in a correctional

       facility for children. I.C. § 31-37-19-6(b)(2)(A). We find no error with respect

       to the inadvertent inclusion of the wrong statute (in addition to the right one) in

       the order.


[22]   C.T. also argues that the order is erroneous because it does not include a time

       limit on his wardship with the DOC. In support of this argument, he directs

       our attention to the next portion of that same statute, which provides that if a

       child is less than seventeen years old, the juvenile court may order

       “confinement in a juvenile detention facility” for not more than the lesser of




       4
         Indeed, the very next line of the order, which is also not marked out, relates to juvenile delinquents who are
       female. Appellant’s App. Vol. II p. 18.

       Court of Appeals of Indiana | Memorandum Decision 50A03-1711-JV-2794 | March 28, 2018             Page 11 of 12
       (1) ninety days, or (2) the maximum term of imprisonment that could have been

       imposed if the child had been convicted as an adult offender for the act that the

       child committed. I.C. § 31-37-19-6(b)(2)(B). That statute does not apply here,

       however, because C.T. is not confined in a juvenile detention facility. Instead,

       he has been made a ward of the DOC and placed in a correctional facility for

       children. Consequently, we decline to reverse on this basis.


[23]   The judgment of the juvenile court is affirmed.


       Kirsch, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 50A03-1711-JV-2794 | March 28, 2018   Page 12 of 12
