MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                             FILED
regarded as precedent or cited before any                                     Jun 26 2018, 9:53 am
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ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
John M. Haecker                                           Curtis T. Hill, Jr.
Squiller & Hamilton, LLP                                  Attorney General of Indiana
Auburn, Indiana
                                                          James B. Martin
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

E.C.,                                                     June 26, 2018
Appellant-Respondent,                                     Court of Appeals Case No.
                                                          18A-JV-76
        v.                                                Appeal from the DeKalb Circuit
                                                          Court
State of Indiana,                                         The Honorable Kurt B. Grimm,
Appellee-Petitioner.                                      Judge
                                                          Trial Court Cause No.
                                                          17C01-1706-JD-20



Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-JV-76 | June 26, 2018                           Page 1 of 7
                                           Case Summary
[1]   On August 9, 2017, E.C. was adjudicated to be a delinquent child for

      committing what would have been Class A misdemeanor resisting law

      enforcement if committed by an adult and was placed in a juvenile detention

      facility. The State subsequently filed a petition to modify the prior dispositional

      order after E.C. was involved in a number of incidents at the facility. During a

      hearing on its petition, the State recommended placement in a juvenile

      detention facility operated by the Department of Correction (“DOC”). Both

      E.C.’s attorney and her Guardian Ad Litem (“GAL”) spoke on E.C.’s behalf

      during the hearing and indicated that they agreed with the State’s petition and

      placement recommendation. On appeal, E.C. argues that the juvenile court

      violated her due process right to be heard during the hearing. We affirm.



                            Facts and Procedural History
[2]   On June 13, 2017, the State alleged that E.C. was a delinquent child for

      committing what would be Level 6 felony battery to a public safety officer and

      two counts of Class A misdemeanor resisting law enforcement if committed by

      an adult. On August 9, 2017, E.C. admitted that she had committed what

      would be Class A misdemeanor resisting law enforcement if committed by an

      adult. The juvenile court adjudicated E.C. to be a juvenile delinquent, entered

      a dispositional order, and placed E.C. at the Youth Opportunity Center

      (“YOC”).



      Court of Appeals of Indiana | Memorandum Decision 18A-JV-76 | June 26, 2018   Page 2 of 7
[3]   E.C. was involved in a number of incidents at YOC during November of 2017.

      On November 3, 2017, a YOC staff member was injured while intervening in

      an altercation between E.C. and another resident. E.C. was placed in restraints

      on November 10, 2017, after verbally and physically abusing a member of the

      YOC staff. On November 16, 2017, E.C. started a fight with a peer in another

      resident’s unit, and when staff attempted to intervene, E.C. punched the staff

      member in the face with a closed fist. E.C. and several other residents created a

      disturbance at the facility on November 27, 2017, during which E.C. broke a

      fire alarm and attempted to use the broken pieces of the alarm as a weapon.

      E.C. pushed and lunged at staff members and grabbed workers in an attempt to

      impede their attempts to separate residents. E.C. also attempted to punch a

      police officer who responded to the situation. In light of these incidents, on

      December 6, 2017, the YOC informed the DeKalb County Probation

      Department that it was no longer able to provide care and treatment for E.C.

      due to her “noncompliance and aggressive behaviors.” Appellant’s App. Vol.

      II, p. 100.


[4]   On December 11, 2017, the State filed a verified petition to modify the

      dispositional decree, requesting that the juvenile court remove E.C. from the

      YOC and to conduct a hearing to determine a proper placement. The next day,

      the juvenile court conducted a hearing on the State’s petition. During the

      hearing, the juvenile court heard testimony that E.C. had previously been

      removed from five prior placements. E.C.’s probation officer, Kelly Mattes,

      testified that she had spoken with a counselor at the juvenile facility operated by


      Court of Appeals of Indiana | Memorandum Decision 18A-JV-76 | June 26, 2018   Page 3 of 7
      the DOC and believed that E.C. would benefit from the more structured and

      secure environment offered by that facility. The facility also offers therapeutic

      programs from which E.C. could potentially benefit. Mattes opined that there

      were no other less-restrictive placements appropriate for E.C.


[5]   Megan Refner, the family case manager assigned to E.C.’s ongoing CHINS 1

      case, agreed with Mattes’s recommendation and opined that there were no

      other less-restrictive placements available for E.C. that would ensure both

      E.C.’s safety and that of the community. E.C.’s attorney, Darrick Brinkerhoff,

      presented argument on E.C.’s behalf, indicating that she did not want to be

      placed at DOC’s juvenile facility. Brinkerhoff acknowledged, however, that

      “unfortunately there’s … too many incidents [and] … there is no other option.”

      Tr. Vol. II, p. 13. E.C.’s GAL, Cory Swagger, testified that while he had some

      concerns about placement in the DOC, he “agree[d] with the recommendations

      of the … Probation [Department] that the DOC is gonna be the safest, at the

      moment, for” E.C. Tr. Vol. II, p. 15. Following the hearing, the juvenile court

      awarded wardship to the DOC with a recommendation for treatment of E.C.’s

      mental health issues.



                                 Discussion and Decision




      1
       The term CHINS is commonly used to describe cases in which a juvenile has been alleged to be a Child In
      Need of Services.

      Court of Appeals of Indiana | Memorandum Decision 18A-JV-76 | June 26, 2018                   Page 4 of 7
[6]   On appeal, E.C. challenges the juvenile court’s order modifying the

      dispositional decree.


               The specific disposition of a delinquent is within the juvenile
               court’s discretion, to be guided by the following considerations:
               the safety of the community, the best interests of the child, the
               least restrictive alternative, family autonomy and life, freedom of
               the child, and the freedom and participation of the parent,
               guardian, or custodian. We reverse only for an abuse of
               discretion, namely 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. v. State, 849 N.E.2d 538, 544 (Ind. 2006) (internal citation and quotation

      omitted). 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).


[7]   “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) (internal quotation omitted). With respect to notice and the

      opportunity to be heard in juvenile delinquency cases, Indiana Code section 31-

      37-18-1.3 provides as follows:


               (a) The prosecuting attorney or probation department of the
               juvenile court shall provide notice of the date, time, place, and
               purpose of the dispositional hearing under this chapter to each:
                      (1) party or person for whom a summons is required
                      to be issued under [Indiana Code section] 31-37-12-2;
                      and

      Court of Appeals of Indiana | Memorandum Decision 18A-JV-76 | June 26, 2018    Page 5 of 7
                       (2) foster parent or other caretaker with whom the
                       child is placed for temporary care;
               at the time the dispositional hearing is scheduled.
               (b) The court shall:
                       (1) provide a person who is required to be notified
                       under subsection (a) an opportunity to be heard; and
                       (2) allow a person described in subdivision (1) to
                       make recommendations to the court;
               at the dispositional hearing.


[8]   The juvenile court afforded both E.C.’s attorney and GAL the opportunity to

      speak on her behalf during the hearing on whether to modify the dispositional

      order. Both E.C.’s attorney and GAL indicated that they agreed with the

      State’s recommended placement. Given that the juvenile court allowed E.C.’s

      representatives to speak on her behalf, we conclude that the juvenile court

      complied with the statutory requirement affording the opportunity to be heard. 2


[9]   Moreover, we are unpersuaded by E.C.’s claim that she was entitled to make a

      statement of allocution. Article I, section 13 of the Indiana Constitution

      provides that “[i]n all criminal prosecutions, the accused shall have the right to …

      to be heard by himself and counsel[.]” (Emphasis added). In addition,

      Indiana’s current allocation statute explains that


               When the defendant appears for sentencing, the court shall …
               afford counsel for the defendant an opportunity to speak on
               behalf of the defendant. The defendant may also make a



      2
        Neither E.C. nor her attorney made any indication that E.C. wished to make a statement before the
      juvenile court and nothing in the record suggests that the juvenile court would not have allowed E.C. to
      speak on her own behalf if she had requested the opportunity to do so.

      Court of Appeals of Indiana | Memorandum Decision 18A-JV-76 | June 26, 2018                       Page 6 of 7
               statement personally in the defendant’s own behalf and, before
               pronouncing sentence, the court shall ask the defendant whether
               the defendant wishes to make such a statement. Sentence shall
               then be pronounced, unless a sufficient cause is alleged or
               appears to the court for delay in sentencing.


       Ind. Code § 35-38-1-5. The above-quoted authorities reinforce the common law

       principal that the right to allocution is limited to criminal defendants.


[10]   It is well-settled that “proceedings in juvenile court are civil proceedings, not

       criminal in nature and that an act of juvenile delinquency is not a crime.” T.K.

       v. State, 899 N.E.2d 686, 687–88 (Ind. Ct. App. 2009) (internal quotation and

       brackets omitted). Dispositional decrees are intended to promote rehabilitation

       so that the juvenile does not become an adult criminal. A.A.Q. v. State, 958

       N.E.2d 808, 813 (Ind. Ct. App. 2011). “This is in keeping with the legislative

       policy that juveniles are to be treated as persons in need of care, protection,

       treatment, and rehabilitation.” Id. (internal quotation omitted). In light of the

       civil nature of juvenile proceedings, E.C. has failed to convince us that either

       the Indiana Constitution or relevant statutory authority provide a juvenile with

       the right to make the equivalent of an allocution statement prior to the

       pronouncement of a dispositional judgment.


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


       Baker, J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-JV-76 | June 26, 2018   Page 7 of 7
