MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                           FILED
regarded as precedent or cited before any                             Oct 31 2018, 10:31 am

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


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke                                     Curtis T. Hill, Jr.
Wieneke Law Office, LLC                                   Attorney General of Indiana
Brooklyn, Indiana
                                                          George P. Sherman
                                                          Supervising Deputy Attorney
                                                          General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

K.S.,                                                     October 31, 2018
Appellant-Respondent,                                     Court of Appeals Case No.
                                                          18A-JV-1304
        v.                                                Appeal from the Jennings Circuit
                                                          Court
State of Indiana,                                         The Honorable Jon W. Webster,
Appellee-Petitioner.                                      Judge
                                                          Trial Court Cause No.
                                                          40C01-1801-JD-1



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-JV-1304 | October 31, 2018               Page 1 of 12
                                Case Summary and Issue
[1]   When K.S. was adjudicated a delinquent child in February 2018, the juvenile

      court awarded wardship of him to the Indiana Department of Correction

      (“DOC”) but suspended the commitment and placed K.S. on probation. The

      State subsequently filed a petition to modify the dispositional decree, and upon

      finding that K.S. had committed batteries on family members while on

      probation, the juvenile court committed K.S. to the DOC. K.S. now appeals,

      raising two issues for our review that we consolidate and restate as one:

      whether the juvenile court abused its discretion in modifying K.S.’s placement

      when it did not make a specific finding as to K.S.’s status and did not consider

      less restrictive placements. Concluding the trial court did not abuse its

      discretion, we affirm.



                            Facts and Procedural History
[2]   K.S. and his siblings were adopted by their grandmother, Teresa, after they

      were abandoned by their parents and an adoptive placement with their aunt and

      uncle was terminated. Teresa often called the police when K.S. was disobeying

      her or acting out; an incident report from the North Vernon Police Department

      about a December 3, 2017 dispatch to the house stated:


              Officers have been dispatched to this address a total of 19 times
              between August 2016 and December of this year. The nature of
              the calls are threats, juvenile problems, Domestic Disturbance
              and Disturbance. Most if not all of these calls were due to
              [K.S.’s] actions.

      Court of Appeals of Indiana | Memorandum Decision 18A-JV-1304 | October 31, 2018   Page 2 of 12
      Appellant’s Appendix, Volume 2 at 36.


[3]   Although never fully diagnosed, it appears K.S. suffers from several mental

      health disorders, and he has been prescribed various medications. In late 2017,

      K.S. was admitted to Bloomington Meadows Hospital for three days after

      expressing suicidal thoughts. He also sees a psychologist weekly and works

      with two therapists on life skills through Centerstone, a provider of behavioral

      health services. At some point, the Indiana Department of Child Services

      (“DCS”) became involved with the family to investigate neglect of the children.


[4]   On January 30, 2018, the State filed a petition alleging K.S. was a delinquent

      child due to committing acts that, if committed by an adult, would constitute

      theft, a Class A misdemeanor, for stealing earbuds from his school; battery, a

      Class B misdemeanor, for hitting his brother; and battery, a Class B

      misdemeanor, for hitting his sister. It was noted in the preliminary inquiry

      report that there was an “[a]ctive neglect investigation by DCS.” Id. at 11.

      However, the probation officer affirmed that he had completed a factual review

      of the child’s status and history pursuant to Indiana Code section 31-37-8-1 and

      reported that K.S. “has NOT been identified as a dual status child.” Id. at 13.

      K.S. admitted to the allegations and on February 15, 2018, the juvenile court

      issued a dispositional decree in which it awarded wardship of K.S. to the DOC

      but suspended his commitment and placed K.S. on probation for one year.

      During his probation, K.S. was to attend school every day; obey all laws;

      consent to reasonable searches of his home, vehicle, or person; participate in

      and successfully complete counseling; and pay fees and costs.

      Court of Appeals of Indiana | Memorandum Decision 18A-JV-1304 | October 31, 2018   Page 3 of 12
[5]   By April of 2018, K.S. was detained at the Bartholomew County Juvenile

      Detention Center “to protect himself, his family and the community from

      further acts of juvenile delinquency.” Id. at 67. Police had been called to

      Teresa’s residence at least four times after the February disposition.

      Specifically, Teresa called the police on one occasion when K.S. left the house

      without permission and on three other occasions when K.S. hit one or more

      members of the family. Following the fourth call, K.S. was detained.


[6]   On April 24, 2018, the State filed a petition to modify the dispositional decree,

      alleging K.S. had failed to obey all laws and requesting that the disposition be

      modified to commitment to the Indiana Boys School. The modification report

      from the juvenile division recommended that K.S. be sent to the Boys School

      because “[h]e is unlikely to change his behavior.” Id. at 72. On April 30, 2018,

      K.S. admitted he committed the alleged batteries and the trial court held a

      dispositional hearing. Teresa testified that she had tried to find K.S. a

      residential placement through Centerstone but was unable to do so because of

      his inappropriate behaviors. Although Teresa believed K.S. is capable of

      obeying the rules, he just “chooses not to.” Transcript of the Evidence, Volume

      2 at 15.


[7]   Andrew Judd, K.S.’s probation officer, testified that he had worked with DCS

      and Centerstone to try to find a placement for K.S. at “every facility we could

      think of in the State” but he was denied “[p]rimarily because of his aggressive

      behavior[.]” Id. at 22-23. Judd recommended that K.S. be placed at the Boys

      School because “they have twelve different facilities throughout the State that

      Court of Appeals of Indiana | Memorandum Decision 18A-JV-1304 | October 31, 2018   Page 4 of 12
      they use, they do a two-week psychiatric evaluation before he’s made a

      placement.” Id. at 23. “[T]he other good thing about Indiana Boy [sic] School .

      . . is that the only way to get out . . . is to earn your way out, you have to work

      the program, . . . and in [K.S.’s] case, he needs to learn that he needs to change

      his behavior for real and for good[.]” Id. Judd noted that K.S. was a “model

      prisoner” when he was detained in the past and was doing well in detention

      currently. Id. at 24.


[8]   K.S. also testified to his thoughts regarding the modification of his dispositional

      order. He felt being placed at the Boys School would be “okay” because of the

      issues in his past and how well he was doing in detention currently. Id. at 28.

      He noted he “would love to go back home, but . . . it’s not really gonna be a

      good decision to go back home right now, cause I’m not ready.” Id.


[9]   The juvenile court modified K.S.’s disposition and ordered him committed to

      the Indiana Boys School:


              I’ve been doing this almost twenty-two years, and in that period
              of time I can probably still count on my hands and my feet the
              number of kids that I’ve sent to the detention center . . ., because
              I realize that it’s kind of the end of the road as far as what I can
              do to try to help people. But, this is a case where there’s nothing
              else for me to do. . . . [I]f [the Boys School] can’t help you get
              this done you’ll at least figure out that there are consequences for
              bad behavior.


      Id. at 29-30. K.S. now appeals.




      Court of Appeals of Indiana | Memorandum Decision 18A-JV-1304 | October 31, 2018   Page 5 of 12
                                  Discussion and Decision
                     Modification of Delinquency Disposition
[10]   K.S. claims the juvenile court abused its discretion in committing him to DOC

       for placement at the Indiana Boys School because it did not properly assess

       whether he was a dual status child as required by statute and did not impose the

       least restrictive dispositional alternative.


                                              A. Dual Status
[11]   “Research has demonstrated that there is a greater likelihood of delinquency

       among children who have suffered abuse and neglect.” Dual Status Resource

       Notebook, Tab 3: Why Dual Status?,

       https://www.in.gov/judiciary/probation/files/Dual%20Status%20Resource%

       20Notebook.pdf (last visited October 18, 2018). Indiana Code Article 31-41

       was enacted in 2015 to address the specific needs of these children by providing

       both the child welfare system and the juvenile justice system “tools to identify,

       communicate and implement a coordinated plan that serves a child’s best

       interests and welfare.” Id. Therefore, when a child enters either the child

       welfare system or the juvenile justice system, the court and responding agencies

       must determine whether a child is a dual status child and proceed accordingly.

       See Ind. Code § 31-34-7-1 (requiring dual status determination in preliminary

       inquiry of a child in need of services (“CHINS”) allegation); Ind. Code § 31-37-

       8-1 (requiring same in preliminary inquiry of a delinquency allegation).




       Court of Appeals of Indiana | Memorandum Decision 18A-JV-1304 | October 31, 2018   Page 6 of 12
[12]   As potentially relevant to this case, a “dual status child” is defined as one who,

       among other things:


           • is alleged to be or is presently adjudicated to be a CHINS and is alleged

               to be or is presently adjudicated to be a delinquent child, Ind. Code § 31-

               41-1-2(1);

           • is presently named in an informal adjustment under the CHINS statute

               and who is adjudicated a delinquent child, Ind. Code § 31-41-1-2(2); or

           • who has been previously adjudicated a CHINS or was a participant in an

               informal adjustment under the CHINS statute and was under a wardship

               that has been terminated or a program of informal adjustment that has

               been terminated before the current delinquency petition, Ind. Code § 31-

               41-1-2(4).


[13]   There are at least three times in the juvenile delinquency process when a dual

       status screening tool is to be completed: when an intake officer makes the

       preliminary inquiry, Ind. Code §§ 31-37-8-1, -2; when a juvenile court finds a

       child is a delinquent child, Ind. Code § 31-37-13-2; and when a probation officer

       prepares a predispositional report, Ind. Code § 31-37-17-6.1. The “dual status

       screening tool” is “a factual review of a child’s status and history” used to

       determine whether the child meets the definition of a dual status child such that

       the child should be referred for an assessment by a dual status assessment team.1



       1
         The “dual status assessment team” is a committee assembled by a juvenile court to recommend the proper
       legal course for a dual status child. Ind. Code § 31-41-1-5.

       Court of Appeals of Indiana | Memorandum Decision 18A-JV-1304 | October 31, 2018              Page 7 of 12
       Ind. Code §§ 31-41-1-3, 31-37-8-5. Finally, the juvenile court’s dispositional

       decree is to be accompanied by written findings and conclusions including a

       specific finding as to whether the child is a dual status child. Ind. Code § 31-37-

       18-9(a)(6).


[14]   K.S. contends he was denied due process when the juvenile court failed to make

       a specific finding as to whether he was a dual status child. We begin by noting

       the State argues K.S.’s claim was waived for failure to raise it to the juvenile

       court. When modification of a dispositional decree is requested, the probation

       department must complete a modification report governed by the requirements

       for a predispositional report, Ind. Code § 31-37-22-4 (incorporating the

       requirements of Ind. Code ch. 31-37-17 regarding predispositional reports), and

       the juvenile court must comply with the requirements governing dispositional

       orders, including the requirement for written findings and conclusions, Ind.

       Code § 31-37-22-3(c) (incorporating the requirements of Indiana Code section

       31-37-18-9). As a dual status screening tool is therefore to be completed in a

       modification report, as the juvenile court is to include a finding as to whether

       the child is a dual status child in its modified dispositional order, and as a

       child’s status in the child welfare system can change during delinquency

       proceedings, it is unclear when the State thinks K.S. should have objected to the

       juvenile court’s failure to do so before now. K.S. could not have known the

       juvenile court would not make the required finding until the modified

       dispositional order was entered. Moreover, K.S. primarily uses the possibility




       Court of Appeals of Indiana | Memorandum Decision 18A-JV-1304 | October 31, 2018   Page 8 of 12
       of his dual status as a reason why the trial court’s modification disposition was

       an abuse of discretion.


[15]   “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). A juvenile charged with delinquency is entitled to the “common

       law jurisprudential principles which experience and reason have shown are

       necessary to give the accused the essence of a fair trial.” K.A. v. State, 938

       N.E.2d 1272, 1274 (Ind. Ct. App. 2010), trans. denied. These principles include

       the right to have a competency determination, the right to notice of the charges,

       the right to counsel, the privilege against self-incrimination, and the right to

       confront witnesses, and, in the case of a modification, the right to an

       evidentiary hearing. Id. at 1274-75.


[16]   K.S. is correct that the legislature has provided a fairly detailed list of

       procedural requirements for juvenile courts to follow in delinquency

       proceedings and he is also correct that the juvenile court’s modification order

       does not comply with the relevant statute as it does not make a specific finding

       as to K.S.’s status. Although the modification order fails to include a specific

       finding as to K.S.’s dual status, the record shows that the intake officer

       completing the preliminary inquiry in January 2018 had information regarding

       K.S.’s birth parents, the failed adoption by his aunt and uncle, and the current

       DCS involvement with the family, but reported that K.S. was not identified as a

       dual status child. Appellant’s App., Vol. 2 at 13. K.S.’s probation officer was

       clearly aware of K.S.’s situation, yet he still recommended the juvenile court

       Court of Appeals of Indiana | Memorandum Decision 18A-JV-1304 | October 31, 2018   Page 9 of 12
       proceed with delinquency proceedings and then, just three months later,

       recommended that K.S.’s placement be changed to the Indiana Boys School.

       The brief and cryptic references in the paper record may suggest the possibility

       that K.S. could be a dual status child, but there is no clear indication of K.S.’s

       status within the child welfare system and certainly no indication that his status

       changed between the preliminary inquiry and the modification hearing. These

       procedural deficiencies, however, do not rise to the level of a constitutional

       violation because K.S. was given notice of the charges against him alleged to

       warrant modification of his placement, had counsel, and was afforded an

       evidentiary hearing at which no evidence was adduced that would clearly

       support a finding that he was a dual status child. K.S.’s background is

       nevertheless a factor to be considered in the appropriate disposition.


                                 B. Placement on Modification
[17]   K.S. also challenges the juvenile court’s order modifying the dispositional

       decree, alleging there were other “intermediate” dispositional alternatives

       available besides commitment to the DOC. Corrected Brief of Appellant at 28.


[18]   The juvenile court is accorded “wide latitude and great flexibility in dealing

       with juveniles[.]” C.T.S. v. State, 781 N.E.2d 1193, 1203 (Ind. Ct. App. 2003),

       trans. denied. The specific disposition of a delinquent child is within the juvenile

       court’s discretion, to be guided by the following considerations: the safety of

       the community, the child’s best interests and freedom, the least restrictive

       alternative, family autonomy and life, and the freedom and opportunity for

       participation of the parent, guardian, or custodian. K.S. v. State, 849 N.E.2d
       Court of Appeals of Indiana | Memorandum Decision 18A-JV-1304 | October 31, 2018   Page 10 of 12
       538, 544 (Ind. 2006); see also Ind. Code § 31-37-18-6. We reverse only for an

       abuse of discretion, that is, a decision that is clearly against the logic and effect

       of the facts and circumstances before the court, or the reasonable, probable, and

       actual deductions to be drawn therefrom. K.S., 849 N.E.2d at 544.


[19]   K.S. was offered the opportunity to conform his behavior to an acceptable

       standard while on probation and was unable to do so for even the shortest

       period of time. Despite the services being offered to him, including in home

       mental health and life skills therapy, he continued to act out inappropriately.

       Even K.S. acknowledged that he was doing better in a more structured

       environment and that he would likely not be successful if he were to go home at

       this point. Although K.S. posits he could have been continued on probation

       and placed in a home without other children, the modification report indicated

       he was not a candidate for foster placement “because of his previous violent

       behavior.” Appellant’s App., Vol. 2 at 72. Also, this was not an original

       proceeding – K.S. was already under a suspended commitment to the DOC.

       He clearly knew the consequences of failing to live up to the terms of his

       probation. With evidence that K.S. had multiple chances to change his

       behavior but instead repeatedly violated his probation in a short period of time,

       the juvenile court reasonably concluded that commitment to the DOC, where

       his mental health issues could be evaluated and his particular needs addressed

       at an appropriate facility, served everyone’s best interests.



                                               Conclusion
       Court of Appeals of Indiana | Memorandum Decision 18A-JV-1304 | October 31, 2018   Page 11 of 12
[20]   The juvenile court did not abuse its discretion in modifying K.S.’s placement

       and ordering his commitment to the DOC. The juvenile court’s modification

       order is therefore affirmed.


[21]   Affirmed.


       Baker, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-JV-1304 | October 31, 2018   Page 12 of 12
