MEMORANDUM DECISION
                                                                                  FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                            Jan 25 2018, 11:07 am

regarded as precedent or cited before any                                         CLERK
                                                                              Indiana Supreme Court
court except for the purpose of establishing                                     Court of Appeals
                                                                                   and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Joann M. Price                                           Curtis T. Hill, Jr.
Merrillville, Indiana                                    Attorney General of Indiana

                                                         Ian McLean
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

In re: K.M.M.,                                           January 25, 2018
Appellant-Respondent,                                    Court of Appeals Case No.
                                                         45A03-1706-JV-1267
        v.                                               Appeal from the Lake Superior
                                                         Court, Juvenile Division
State of Indiana,                                        The Honorable Thomas P.
Appellee-Petitioner                                      Stefaniak, Judge
                                                         The Honorable Jeffrey Miller,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         45D06-1703-JD-134



Altice, Judge.


Court of Appeals of Indiana | Memorandum Decision 45A03-1706-JV-1267 | January 25, 2018               Page 1 of 10
                                                Case Summary


[1]   K.M.M. appeals from the trial court’s decision to commit him to the

      Department of Correction (DOC) for having committed an act that would be

      Class A misdemeanor dangerous possession of a firearm if committed by an

      adult. K.M.M. presents two issues for review:


              1. Whether the trial court violated K.M.M.’s due process rights
              when, after taking disposition under advisement to await an
              updated psychological evaluation, the trial court entered a
              disposition order without holding another hearing?


              2. Did the juvenile court abuse its discretion in committing
              K.M.M. to the DOC?


[2]   We affirm.


                                       Facts & Procedural History


[3]   On February 27, 2017, the State alleged that sixteen-year-old K.M.M. was a

      delinquent child for having committed acts that would constitute Class A

      misdemeanor dangerous possession of a firearm if committed by an adult, Level

      5 felony theft if committed by an adult, and Class B misdemeanor possession of

      marijuana if committed by an adult. An initial hearing was held on March 3,

      2017, and counsel was appointed for K.M.M. At the start of an April 18, 2017

      hearing, K.M.M.’s counsel informed the court that an agreement had been

      reached, pursuant to which K.M.M. would admit to the act of dangerous

      possession of a firearm, the remaining allegations would be barred, and


      Court of Appeals of Indiana | Memorandum Decision 45A03-1706-JV-1267 | January 25, 2018   Page 2 of 10
      disposition would be left to the juvenile court. K.M.M.’s attorney also advised

      the court that the parties would “argue disposition.” Transcript at 5. After

      K.M.M. admitted to the act of dangerous possession of a firearm, the juvenile

      court turned to disposition.


[4]   The court first inquired of a probation officer, who recommended that K.M.M.

      be re-committed to the DOC. The probation officer explained the basis for this

      recommendation as follows:


              [K.M.M.] has been afforded numerous services. He was on
              intensive probation level 2 which he failed. He had just recently
              returned from the [DOC] a little over a month ago when the new
              referral came in. He’s had counseling, drug testing, time at the
              Lake County Juvenile Center, formal probation, drug testing.
              All these services that have been in place haven’t precluded him
              from re-offending. I believe, this is his third referral for a firearm.
              Probation does not believe that any time back in the community
              would be a benefit to him.


      Id. at 6-7. The State agreed with the probation department’s recommendation,

      further noting that the present referral was K.M.M.’s sixth referral to the court

      for delinquencies.


[5]   In response, K.M.M.’s counsel pointed out that K.M.M. was enrolled in high

      school and that his mother was willing to be responsible for him if he were

      placed with her. While acknowledging that the firearm offense “is not anything

      trivial,” counsel noted that K.M.M. had accepted responsibility and that he had

      already been detained for forty-seven days. Id. at 7. Counsel requested that the



      Court of Appeals of Indiana | Memorandum Decision 45A03-1706-JV-1267 | January 25, 2018   Page 3 of 10
      court place K.M.M. on home detention with his mother or in an alternative

      residential placement instead of the DOC.


[6]   K.M.M.’s therapist was also present at the hearing and the trial court asked for

      his perspective. The therapist explained that he had worked with K.M.M. for

      approximately three weeks prior to the instant referral and that they “were still

      in the stages of setting goals, helping [K.M.M.] understand what his

      expectation is in the community.” Id. at 8. He further explained to the court

      that K.M.M. reported feeling “unsafe” because “[p]eople . . . were coming after

      him based off of some choices he made in the past. So he kind of felt the need

      to have a gun.” Id. K.M.M. also talked to his therapist about having anger

      management issues. The therapist mentioned that K.M.M. had presented the

      option of moving to Indianapolis to live with his cousin, which the therapist

      believed could be beneficial if it helped K.M.M. feel safer and prevent him from

      re-offending by possessing a firearm. “But,” the therapist added, “if he has

      anger issues . . . then that’s something that has to be addressed so he wouldn’t

      feel the need to do such extreme things when upset.” Id. at 9.


[7]   The court then sought input from K.M.M.’s parents. K.M.M.’s father believed

      that “[i]f [K.M.M.] gets in a better area, it would all work out for the best.” Id.

      K.M.M.’s father stated that he lived in a “better area” and that when K.M.M.

      stayed with him he did not get in trouble. Id. K.M.M.’s mother requested that

      K.M.M. be placed with her, but she also acknowledged that having K.M.M.

      live with his cousin (her nephew) in Indianapolis was an option, although not



      Court of Appeals of Indiana | Memorandum Decision 45A03-1706-JV-1267 | January 25, 2018   Page 4 of 10
      the one she preferred. Later in the hearing, the court was informed that

      K.M.M.’s cousin was on probation for an unspecified offense.


[8]   The juvenile court then inquired as to whether there was a psychological

      evaluation for K.M.M. The probation officer indicated that K.M.M. had

      completed one in 2015. The court then addressed K.M.M.’s counsel:


              THE COURT: Two years old. He was 14, 15 at the time?
              Would you object to me having Doctor Ruff talk to him and try
              to update the psychological? Maybe not do a full psychological,
              Counsel?


              [K.M.M.’s COUNSEL]: No, Your Honor.


              THE COURT: All right, . . . I’ll talk to Doctor Ruff. I’ll order
              an updated psychological. I don’t think we need to do a full one,
              but maybe update and see if – where he was at – where he’s at
              now from then to now and see if there’s any changes in regards
              to that.


      Id. at 12. The juvenile court then heard evidence from a police officer that

      K.M.M. was a documented gang member in Hammond.


[9]   The juvenile court concluded the disposition component of the hearing by

      taking the matter under advisement. Later that day, the juvenile court entered

      an order accepting K.M.M.’s admission and adjudicating K.M.M. a delinquent.

      The court noted in this order that K.M.M. was “to have an updated

      psychological evaluation by Dr. Ruff” and that the court was taking

      “disposition under advisement.” Appellant’s Appendix Vol. 2 at 3.


      Court of Appeals of Indiana | Memorandum Decision 45A03-1706-JV-1267 | January 25, 2018   Page 5 of 10
[10]   On May 9, 2017, the juvenile court entered a disposition order in which it noted

       the April 18 disposition hearing and that it had “read the updated Psychological

       Evaluation.” Id. at 5. The court ordered K.M.M. committed to the DOC and

       recommended that K.M.M. complete anger control classes and drug/alcohol

       counseling. The court also recommended that the DOC determine whether

       K.M.M. meets the criteria for parole supervision. K.M.M. now appeals.

       Additional facts will be provided as necessary.


                                           Discussion & Decision


                                                   Due Process


[11]   K.M.M. argues that the juvenile court violated his right to due process when it

       denied him the opportunity to be heard. Specifically, he claims that the court’s

       act of taking the matter of disposition under advisement pending an updated

       psychological evaluation implied that there would be further proceedings at

       which he could be heard before a final decision was rendered. K.M.M.

       maintains that he was not provided with the updated psychological evaluation

       and was not given an opportunity to refute any findings therein prior to the

       court entering the dispositional order. The standard for determining what due

       process requires in a particular juvenile proceeding is “fundamental fairness.”

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

       434 N.E.2d 155, 156 (Ind. Ct. App. 1982)).


[12]   Ind. Code § 31-37-18-1.3 requires that the juvenile and his or her parents or

       guardians have notice and an opportunity to be heard and make

       Court of Appeals of Indiana | Memorandum Decision 45A03-1706-JV-1267 | January 25, 2018   Page 6 of 10
       recommendations to the court regarding disposition. Here, the parties clearly

       understood that disposition would follow immediately after K.M.M.’s

       admission. Indeed, it was K.M.M.’s attorney who informed the court that the

       parties would “argue disposition.” Transcript at 5.


[13]   After K.M.M. admitted to the allegation and explained the circumstances of his

       dangerous possession of a firearm, the court requested recommendations as to

       disposition and the hearing thereafter focused on dispositional alternatives. The

       court heard testimony from a probation officer1 and K.M.M.’s therapist. The

       court also heard from both of K.M.M.’s parents and questioned them about

       their recommendations for disposition. Upon inquiry, the court was informed

       that K.M.M. had completed a psychological evaluation two years earlier.

       K.M.M.’s counsel expressly indicated that there was no objection to the court’s

       request for an updated psychological evaluation to see if there were any changes

       over the interim period. The court then informed the parties that it was taking

       the matter of disposition “under advisement. I’m going to get an updated psych

       for him and make a determination with what, what we’ll do next.” Id. at 13.




       1
         The chronological case summary indicates that the probation officer’s report was filed with the court on or
       about April 12, 2017. The probation officer was present at the disposition hearing and at no point did
       K.M.M. object on grounds that he had not been provided with a copy of the probation officer’s report filed
       six days earlier. K.M.M.’s conduct at the hearing also indicates that he was fully aware of the probation
       department’s recommendation. He did not object for want of notice of the report’s contents or make a record
       indicating that the juvenile court did not perform its statutory duty to make the dispositional report available
       within a reasonable time before the hearing. See I.C. § 31-37-17-6(b).

       Court of Appeals of Indiana | Memorandum Decision 45A03-1706-JV-1267 | January 25, 2018            Page 7 of 10
[14]   A full dispositional hearing was held at which K.M.M., represented by counsel,

       and his parents were present. K.M.M. did not request to cross-examine the

       probation officer or his therapist concerning their recommendations. Rather,

       his parents testified, providing the court with their recommendations for

       disposition. Further, the court was informed that K.M.M. had previously

       submitted to a psychological evaluation. K.M.M. lodged no objection to the

       consideration of such and expressly stated that he did not object to the court’s

       request for an updated evaluation to consider any changes that may have

       occurred in the two years since the prior evaluation was completed. The State

       and K.M.M. had nothing further to add with regard to disposition. Upon

       receiving the updated psychological evaluation, the court issued its

       dispositional order. The court followed the recommendations of probation and

       the State and rejected the alternative dispositions desired by K.M.M.’s parents.

       K.M.M. has not shown that the fact that the court did not hold another hearing

       after receiving the updated psychological evaluation violated fundamental

       fairness.


                                                   Disposition


[15]   K.M.M. argues that the juvenile court abused its discretion in ordering that he

       be committed to the DOC.


               [T]he choice of the specific disposition of a juvenile adjudicated a
               delinquent child is a matter within the sound discretion of the
               juvenile court and will only be reversed if there has been an abuse
               of that discretion. The juvenile court’s discretion is subject to the
               statutory considerations of the welfare of the child, the safety of

       Court of Appeals of Indiana | Memorandum Decision 45A03-1706-JV-1267 | January 25, 2018   Page 8 of 10
               the community, and the policy of favoring the least harsh
               disposition. 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.
               Hence, the juvenile court is accorded wide latitude and great
               flexibility in its dealings with juveniles.


       R.A. v. State, 936 N.E.2d 1289, 1291 (Ind. Ct. App. 2010) (citations and

       quotations omitted).


[16]   At the April 18 disposition hearing, the court was informed that this was

       K.M.M.’s sixth referral and third for dangerous possession of a firearm.

       K.M.M. had been afforded numerous services, including counseling, drug

       testing, formal probation, and commitment to a juvenile center, and he had

       failed intensive probation. He had been released from the DOC for a little over

       a month when he was picked up on the instant allegation. The State agreed

       with probation’s recommendation that K.M.M. be committed to the DOC.

       The probation officer did not believe that “any time back in the community

       would be a benefit to [K.M.M.]” Transcript at 7. K.M.M.’s therapist noted that

       placement where K.M.M. felt safe (referring to possible placement in a different

       area) could be a possibility, but noted that his anger issues would first have to

       be addressed. Based on this record, we cannot say that the juvenile court

       abused its discretion in ordering that K.M.M. be committed to the DOC with

       recommendations that he complete anger control classes and complete

       drug/alcohol counseling.



       Court of Appeals of Indiana | Memorandum Decision 45A03-1706-JV-1267 | January 25, 2018   Page 9 of 10
[17]   Judgment affirmed.


[18]   May, J. and Vaidik, C.J., concur.




       Court of Appeals of Indiana | Memorandum Decision 45A03-1706-JV-1267 | January 25, 2018   Page 10 of 10
