MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                            FILED
regarded as precedent or cited before any                              Jan 25 2019, 6:18 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
Renee M. Ortega                                           Curtis T. Hill, Jr.
Lake County Juvenile                                      Attorney General of Indiana
Public Defender’s Office                                  Caroline G. Templeton
Crown Point, Indiana                                      Deputy Attorney General
                                                          Indianapolis, Indiana


                                              IN THE
        COURT OF APPEALS OF INDIANA

L.C.,                                                     January 25, 2019
Appellant-Respondent,                                     Court of Appeals Case No.
                                                          18A-JV-1006
        v.                                                Appeal from the Lake Superior
                                                          Court
State of Indiana,                                         The Honorable Thomas P.
Appellee-Petitioner.                                      Stefaniak, Jr., Judge
                                                          The Honorable Robert G. Vann,
                                                          Magistrate
                                                          Trial Court Cause Nos.
                                                          45D06-1610-JD-639
                                                          45D06-1701-JD-3



Mathias, Judge.



Court of Appeals of Indiana | Memorandum Decision 18A-JV-1006 | January 25, 2019                Page 1 of 11
[1]   L.C. appeals the juvenile court’s probation modification from residential

      placement to the Department of Correction (“DOC”). L.C.’s arguments are

      threefold, which we restate as:


              (i) whether his due process rights were violated when he was not
              present at the dispositional hearing;


              (ii) whether his due process rights were violated because the State
              did not present evidence that L.C. had violated probation; and


              (iii) whether the trial court abused its discretion when it ordered
              L.C. to the DOC.


      We affirm.


                                  Facts and Procedural History
[2]   On October 13, 2016, L.C. kicked his uncle’s dog “like a football” after the dog

      and another dog had begun growling and barking at one another. L.C. was

      charged with what would be cruelty to an animal as a Class A misdemeanor if

      committed by an adult, to which he admitted. He was placed on probation and

      released to his mother’s care.


[3]   In January of 2017, while L.C. was still on probation, police responded to a

      report of a battery at L.C.’s home. L.C.’s mother (“Mother”) reported that

      Mother and L.C. had been verbally fighting for several days, and on December

      31, 2016, L.C. approached her from behind and wrapped his hands around her

      neck. She also reported that the next day, on January 1, 2017, L.C. hit his

      mother’s arm and kicked her in the stomach. The officer observed redness on
      Court of Appeals of Indiana | Memorandum Decision 18A-JV-1006 | January 25, 2019   Page 2 of 11
      Mother’s neck, arm, and stomach areas. L.C. was charged with battery

      resulting in bodily injury, a Class A misdemeanor if committed by an adult.

      The next day, he was charged with another battery resulting in bodily injury, a

      Class A misdemeanor if committed by an adult, in a separate cause. L.C.

      admitted to one count of battery resulting in bodily injury, and the other was

      dismissed.

[4]   The court ordered a psychological evaluation on January 5, 2017. L.C. was

      diagnosed with persistent depressive disorder, cannabis use disorder,

      intellectual disability, and dependent personality traits with depressive features.

      L.C. also identified “sexual feelings” as one of his most troubling problems.

      Appellant’s App. Vol. II, p. 106. Residential placement was recommended

      because he was identified as a danger to himself and others. As a result, L.C.

      was placed at Gibault treatment center.

[5]   Just under two months later, in February of 2017, probation requested a

      modification of placement. Gibault had informed probation that L.C. had fled

      the facility on several occasions and therefore was no longer willing to have

      L.C. at its facility. L.C. admitted these allegations. L.C. was then detained until

      he was placed at Lakeside in Kalamazoo, Michigan on April 4, 2017.


[6]   On November 1, 2017, probation requested that the court change L.C.’s

      placement from general population to the sexually maladaptive unit at

      Lakeside, after L.C.’s teacher caught him masturbating in class on more than

      one occasion. The court approved the request, with Mother’s agreement.


      Court of Appeals of Indiana | Memorandum Decision 18A-JV-1006 | January 25, 2019   Page 3 of 11
[7]   In February of 2018, Lakeside requested L.C.’s removal from its programming.

      Lakeside submitted a report detailing L.C.’s chronic noncompliance, lack of

      progress in the program, and his refusal to take his medications. Lakeside also

      emphasized that L.C. struggled with social interactions and has no

      understanding that his inappropriate sexual behavior has an effect on other

      individuals. This behavior was significantly disrupting Lakeside’s programming

      for other patients. Based on this report, probation once again filed a petition for

      modification. The court held combined modification of probation and court

      ward review hearings on March 13 and 16, 2018.


[8]   At the March 13, 2018 hearing, L.C., L.C.’s counsel, L.C.’s mother, L.C.’s

      probation officer, and three individuals from Lakeside Academy were present.

      The probation officer testified that Lakeside was asking for L.C.’s removal from

      their facility because of his non-compliance with programming. L.C. had

      masturbated in class and in front of female staff. He had been refusing to take

      his medication and had thrown away his core curriculum text. Probation then

      recommended placement in a specialized program in the Department of

      Correction for children who act out sexually.

[9]   L.C.’s counsel indicated that L.C. did not deny that Lakeside wanted him

      removed from their facility but denied the underlying allegations. Counsel

      indicated that L.C.’s mother wanted L.C. to be seen by a psychiatrist at the

      Dyer Hospital and that L.C.’s mother wanted L.C. to be released to home

      monitoring. Counsel asserted that placement in the DOC would cause more

      harm. L.C. testified that he wanted to go home to his mother. L.C. also stated

      Court of Appeals of Indiana | Memorandum Decision 18A-JV-1006 | January 25, 2019   Page 4 of 11
       that he was not masturbating; he simply has a rash and some knots in his groin

       area that caused him discomfort.

[10]   The Director of the juvenile sex offender program at Lakeside testified that L.C.

       does not take ownership of his sexual issues and has broken confidentiality of

       other students in the program, has antagonized female staff, continues to

       masturbate in public, and wrote a sexually explicit letter to the assistant

       principal of the school. He had also run from the facility.


[11]   L.C.’s mother testified that she believed the DOC would not help him and she

       wanted him to be placed with another mental health facility. At the conclusion

       of the March 13, 2018, hearing, L.C. was transported to the Acute

       Psychological Unit at St. Margaret’s in Dyer, Indiana, to undergo an updated

       psychiatric evaluation.


[12]   On March 16, 2018, the court re-convened. L.C. was still at St. Margaret’s.

       The updated psychiatric evaluation had been completed. L.C. was able to be

       discharged, but probation’s security team had not yet been able to securely

       transport him. However, both L.C.’s counsel and his Mother were present.

       L.C.’s mother testified that she had spoken with the doctor at St. Margaret’s,

       who had identified an issue with the medications L.C. had been given at

       Lakeside. Probation continued to recommend that the sex offender program at

       the DOC, which “will not kick him out as Lakeside had.” Tr. p. 6. Mother

       continued to assert her position in the prior hearing, that she felt that placement

       in the DOC would not help. She also indicated that L.C. had told her he did


       Court of Appeals of Indiana | Memorandum Decision 18A-JV-1006 | January 25, 2019   Page 5 of 11
       not feel he was a danger to society. The court took the matter under advisement

       and, on March 22, 2018, entered an order granting wardship of L.C. to the

       DOC, with recommendation that L.C. participate in the “INSOM services at

       the Pendleton Juvenile Correctional Facility for his sexually maladaptive

       behavior and low cognitive function.” Appellant’s App. Vol. III, p. 119. L.C.

       appeals the March 22, 2018 order.


                                      Discussion and Decision
                                                   Due Process

[13]   Indiana Code section 31-37-22-1(a) governs the modification of a juvenile

       dispositional decree. It provides:


               While the juvenile court retains jurisdiction under IC 31-30-2, the
               juvenile court may modify any dispositional decree:

                        (1) upon the juvenile court’s own motion:

                        (2) upon the motion of:

                                (A)      the child;

                                (B)      the child’s parent, guardian, custodian, or
                                         guardian ad litem;

                                (C)      the probation officer; or

                                (D)      the prosecuting attorney; or

                        (3) upon the motion of any person providing services to
                            the child or to the child’s parent, guardian, or custodian
                            under a decree of the court.




       Court of Appeals of Indiana | Memorandum Decision 18A-JV-1006 | January 25, 2019   Page 6 of 11
       Ind. Code § 31-37-22-1(a). Upon a request for modification, “the probation

       officer shall give notice to the persons affected and the juvenile court shall hold

       a hearing on the question.” Ind. Code § 31-37-22-3(b). While the legislature has

       required notice and a hearing, the statutes do not explicitly define what sort of

       hearing is necessary. We have previously held that consideration of basic due

       process principles requires an evidentiary hearing. In re M.T., 928 N.E.2d 266,

       269 (Ind. Ct. App. 2010), trans. denied.


[14]   The standard for determining what due process requires in a juvenile

       proceeding is “fundamental fairness.” S.L.B. v. State, 434 N.E.2d 155, 156 (Ind.

       Ct. App. 1982). “The due process clause applies in juvenile proceedings, but a

       juvenile [court] must respect the informality and flexibility that characterize

       juvenile proceedings while insuring that such proceedings comport with the

       fundamental fairness demanded by the due process clause.” In re K.G., 808 N.E.

       2d 631, 637 (Ind. 2004). See also J.H. v. State, 857 N.E. 2d 429, 432 (Ind. Ct.

       App. 2006) (recognizing due process right to written notice of the claimed

       violation of his probation that is sufficiently detailed to allow a juvenile to

       prepare an adequate defense), trans denied.


[15]   L.C. relies on K.A. v State, 938 N.E.2d 1272 (Ind. Ct. App. 2010), trans. denied,

       and C.S. v. State, 817 N.E.2d 1279 (Ind. Ct. App. 2004), for his contention that

       his due process rights were violated because the State presented no evidence

       that his behavior warranted a modification to the DOC. However, these cases

       are distinguishable from the matter at hand.



       Court of Appeals of Indiana | Memorandum Decision 18A-JV-1006 | January 25, 2019   Page 7 of 11
[16]   In K.A. v. State, the State requested modification, alleging that K.A. had

       violated probation by being a runaway. 938 N.E. 2d at 1273. However, at the

       hearing regarding modification due to the alleged probation violation, the State

       presented no evidence of the alleged violation and presented only its new

       placement recommendation. Id. In overturning the modification, our court

       noted “[b]ecause the purpose of the hearing was to determine whether

       modification was necessary in light of the alleged probation violation, the

       record indicates that the modification of K.A.’s disposition was predicated on

       the alleged probation violation. The juvenile court’s modification of K.A.’s

       disposition without any evidence of his alleged probation violation was

       therefore a violation of due process.” Id.


[17]   In C.S. v State, the probation officer filed a petition to revoke probation due to a

       drug screen alleged to be positive for cocaine taken just five days after being

       placed on probation. During the hearing regarding the alleged probation

       violation, the probation officer testified regarding her lack of knowledge of the

       testing procedures and that she received a report from the drug screen and

       “’[t]he results stated that [C.S.] tested positive of cocaine.” 817 N.E.2d at 1281.

       No other evidence of the presence of cocaine was presented, and the report that

       the probation officer received concerning the drug test was not provided. Id.


[18]   In the instant matter, the hearings held by the trial court on March 13 and

       March 16, 2018, combined, comport with the “fundamental fairness” required

       in juvenile delinquency proceedings. At the March 13 hearing, L.C. was present

       in person and by counsel. His mother was also present. At the March 16

       Court of Appeals of Indiana | Memorandum Decision 18A-JV-1006 | January 25, 2019   Page 8 of 11
       hearing, L.C.’s counsel and his mother were present. Both advocated on his

       behalf. Here, probation provided evidence of the allegations, L.C. had notice of

       the allegations of noncompliance with programming, and L.C. had an

       opportunity to formulate and present a defense. The procedures used in this

       circumstance were sufficient to provide L.C. with due process.


[19]   L.C. additionally argues that his due process rights were violated when he was

       not present for the March 16, 2018 hearing. We disagree. L.C. was present for

       the March 13, 2018 hearing, both in person and by counsel. He testified

       regarding some of his behaviors at Lakeside. At the conclusion of this hearing,

       the court sent him for an updated psychological evaluation. The court received

       the updated psychological evaluation and reconvened on March 16, 2018. At

       this second hearing regarding the same matter, L.C.’s counsel and mother were

       both present. Mother renewed the objection to L.C.’s placement at DOC. She

       also stated that she had spoken with the doctor who was currently evaluating

       L.C. regarding disagreement with medications that L.C. had been on at

       Lakeside. Counsel for L.C. was present and argued that DOC was not the

       appropriate location and suggested that another placement be located. No

       specific alternative location was presented, and counsel for L.C. did not object

       to his absence at that time. Moreover, L.C. was a flight risk. Under these

       circumstances, we cannot say that L.C.’s due process rights were violated

       because he was not present for the March 16, 2018 hearing.




       Court of Appeals of Indiana | Memorandum Decision 18A-JV-1006 | January 25, 2019   Page 9 of 11
                                              Abuse of Discretion

[20]   The juvenile court system is founded on the notion of parens patriae, which

       allows the court to step into the shoes of the parents. In re K.G., 808 N.E.2d at

       635. The parens patriae doctrine gives a juvenile court the power to further the

       best interests of the child, which implies a broad discretion unknown in the

       adult criminal court system. Id. at 636. The juvenile court therefore has wide

       latitude and great flexibility in its dealings with juveniles. In re M.T., 928

       N.E.2d at 268. The 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 be reversed only if there has been an abuse of that discretion. M.B. v.

       State, 815 N.E.2d 210, 215 (Ind. Ct. App. 2004). We will overturn a

       dispositional order only if we determine the court “abused its discretion because

       its conclusion and judgment are 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.” Id.


[21]   L.C. argues more specifically that the DOC is not the least restrictive placement

       and, as such, the placement is in violation the requirements of Ind. Code

       section 31-37-18-6, and therefore an abuse of discretion. L.C. cites D.P. v. State,

       783 N.E.2d 767 (Ind. Ct. App. 2003), in support. In D.P. v. State, we reversed

       D.P.’s placement in the DOC because D.P. had successfully completed

       probation, and other means had not been unsuccessful. Here, however, L.C.

       was not successful in completing his probation, nor was he amenable to

       treatment.

       Court of Appeals of Indiana | Memorandum Decision 18A-JV-1006 | January 25, 2019   Page 10 of 11
[22]   L.C. also asserts that he was amenable to treatment. However, the record shows

       otherwise. L.C. was on probation, and placed with his Mother, when he was

       arrested for battery causing bodily injury as a Class A misdemeanor if

       committed by an adult, with his Mother as the victim. He had been removed

       from two separate treatment facilities because he could not comply with

       treatment. Defense counsel and probation made no alternative suggestions, and

       the evidence shows that probation had previously engaged in a multi-state

       search for placement, with many denials due to L.C.’s risk of flight or lack of

       programming for L.C.’s specific needs. Because previous efforts at

       rehabilitation had not been successful, the trial court’s placement of L.C. in the

       DOC was not an abuse of discretion.


                                                 Conclusion

[23]   The probation department presented sufficient evidence to support a placement

       modification. L.C. and his counsel were present for the initial portion of the

       combined modification and review hearing, and L.C.’s counsel and mother

       were present for the continuation. As such, his due process rights were not

       violated. Additionally, because prior efforts at rehabilitation were unsuccessful,

       placement at the DOC was not an abuse of discretion.


[24]   Affirmed.


       Bailey, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-JV-1006 | January 25, 2019   Page 11 of 11
