MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                            FILED
regarded as precedent or cited before any                                 Apr 16 2019, 9:32 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
Megan Shipley                                             Curtis T. Hill, Jr.
Indianapolis, Indiana                                     Attorney General of Indiana
                                                          Matthew Michaloski
                                                          Deputy Attorney General and
                                                          Angela Sanchez
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

S.C.,                                                     April 16, 2019
Appellant- Respondent,                                    Court of Appeals Case No.
                                                          18A-JV-1971
        v.                                                Appeal from the Marion Superior
                                                          Court
State of Indiana,                                         The Honorable Marilyn A.
Appellee- Petitioner.                                     Moores, Judge
                                                          Trial Court Cause No.
                                                          49D09-1707-JD-1019
                                                          49D09-1806-JD-756



Tavitas, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-JV-1971 | April 16, 2019                     Page 1 of 14
                                               Case Summary

[1]   S.C., a minor, appeals her placement at the Department of Correction (“DOC”)

      after her adjudication as a delinquent for an act that would be considered

      intimidation if committed by an adult, a Class A misdemeanor, and after the

      juvenile court found that she violated her probation on a separate case. We

      reverse and remand.


                                                      Issues

[2]   S.C. makes two arguments on appeal regarding her sentence to the DOC. We,

      however, reframe the issue before us as whether the record is adequate for this

      court’s review.


                                                      Facts

[3]   Before we summarize the facts as evidenced by the record, we pause to note

      that the record before us, especially the juvenile court transcripts, fall short with

      regard to clarity and detail. This court was able to put together a set of facts

      only after a laborious review of the record, piecing together information from

      the CCS, the parties’ agreements, pleadings, and the minimal information in the

      transcript. Accordingly, we outline below the facts we located, and more

      importantly, the information we could not ascertain.


[4]   From what we can ascertain from the record, S.C. is a fifteen-year-old female

      who has had several interactions with the juvenile court. On July 25, 2017,

      S.C. was alleged to be a delinquent child for committing an act that would be

      considered automobile theft if committed by an adult, a Level 6 felony, under

      Court of Appeals of Indiana | Memorandum Decision 18A-JV-1971 | April 16, 2019   Page 2 of 14
      Cause No. 49D09-1707-JD-1019 (the “auto theft offense”). S.C.’s mother

      claimed that S.C. ran away and stole her vehicle. S.C. was later alleged to have

      “violated the supervision conditions of unsupervised community adjustment,”

      when she left her foster placement without permission on October 11, 2017.

      Appellant’s App. Vol. II p. 200. Evidently, at a disposition hearing on

      November 16, 2017, S.C. entered an admission agreement whereby S.C.

      admitted to committing the auto theft offense and all other pending charges

      were dismissed in exchange for formal probation. 1


[5]   Also evident in the record is that S.C. had several mental and psychological

      issues. On December 12, 2017, S.C. was diagnosed with: “Disruptive Mood

      Dysregulation, Conduct Disorder, [] Specific Learning Disorder, and PTSD.”

      Appellant’s App. Vol. III p. 51. On February 1, 2018, S.C. tested positive for

      marijuana. S.C.’s cognitive assessment also yielded results of “extremely low”

      or “relatively low” scores under the Psychological Evaluation of the Wechsler

      Abbreviated Scale of Intelligence. Id. at 61.


[6]   On January 26, 2018, S.C. was alleged to have, again, run away from her foster

      placement (the “runaway offense”). After, an incident in another placement

      several months later, on May 3, 2018, S.C. was alleged to have committed an

      act that would be considered intimidation if committed by an adult, a Class A

      misdemeanor, in Allen County under Cause No. 49D09-1806-JD-756 (the



      1
        Based on the record, it appears S.C. had another allegation of an act that would be considered automobile
      theft if committed by an adult, a Level 6 felony.

      Court of Appeals of Indiana | Memorandum Decision 18A-JV-1971 | April 16, 2019                   Page 3 of 14
      “intimidation offense”). On May 16, 2018, S.C. admitted to committing the

      intimidation offense in the Allen County juvenile court. Subsequently, the

      parties agreed to venue the intimidation offense to Marion County. As a result,

      the intimidation offense was considered as its own separate offense, and as a

      basis for, in conjunction with the runaway offense for the State’s petition to

      modify probation in the auto theft offense (“probation modification”). The

      runaway offense is the “first probation violation” and the intimidation offense is

      the “second probation violation” for purposes of this appeal.


[7]   On June 15, 2018, the juvenile court held a hearing in Marion County on the

      parties’ admission agreement as to S.C.’s probation violation (the

      “agreement”). The State and S.C. entered into an agreement, requiring that

      S.C. admit to the first probation violation, and in exchange, the State would

      move to dismiss S.C.’s second probation violation. The State agreed to

      recommend continued probation. At the hearing, S.C. admitted the factual

      basis for the first probation violation. The juvenile court set disposition for July

      20, 2018, and seemingly took the agreement under advisement.


[8]   We believe the juvenile court took the agreement under advisement because of

      the court’s order following the June 15, 2018, hearing. At the hearing,

      however, there is no indication from the juvenile court that it took the

      agreement under advisement, as the transcript is devoid of any statement from

      the juvenile court indicating as much. The juvenile court concluded the hearing

      with: “Well here, let’s set a modification on the delinquency matter. Dual

      Status Review for the CHINS matter.” Tr. p. 15.

      Court of Appeals of Indiana | Memorandum Decision 18A-JV-1971 | April 16, 2019   Page 4 of 14
[9]    Contained in the juvenile court’s order dated June 15, 2018, on the admission

       agreement, the juvenile court found:


               A. The Court ascertains that the child fully understands the
                  constitutional right and consequences of the Admission and
                  the admission agreement, and that no threats or promises
                  have been made to the child to have the agreement accepted.
                  The child is advised that the Court is not bound by any
                  recommendation made by the State and may reject the
                  admission agreement but that if the admission is accepted by
                  the Court, the Court must follow the terms of the admission
                  agreement. The Court does take a factual basis for the
                  admission.


               B. The Court takes the State’s admission agreement under
                  advisement and refers the matter to the Probation Department
                  for investigation, recommendation and predisposition.


       Appellant’s App. Vol. III p. 47.


[10]   S.C. encountered several issues with her placements, as apparent from the

       record. While several of those problems arose from S.C.’s conduct, it also

       appears that the system generally did not provide S.C. with the support she

       needed including appropriate placement. At S.C.’s admission agreement

       hearing on June 15, 2018, S.C. stated: “Y’all keep sending me to these different

       placements and you think it is helping me but it is not. I just want somebody to

       care and love me.” Tr. p. 14.


[11]   In S.C.’s July 18, 2018, pre-dispositional report, a list was provided of

       “placements contacted in DCS’ efforts to secure placement:”


       Court of Appeals of Indiana | Memorandum Decision 18A-JV-1971 | April 16, 2019   Page 5 of 14
        1. IUMCH- denied due to elopement risk


        2. Southwest Indiana Youth Villages- unable to take her due to
           behaviors


        3. Courage Center- denied due to behaviors and aggression;
           previously took her as a 1 day favor to DCS


        4. Options – too aggressive for acute unit given how she was
           discharged


        5. Lutherwood- awaiting response for temporary placement [ ]


        6. [S.C.’s grandmother]- no longer an appropriate placement
           option


        7. Whites residential: too aggressive behaviors


        8. Benchmark: [S.C.] will need somewhere secure due to
           behaviors


        9. Gibault: currently no openings


        10. Oaklawn- no openings for females


        11. Bashor Children’s Home currently full waitlist


        12. Campagna Academy; no openings until late summer


        13. Crossroad Child and Family Services: denied due to
            behaviors


Court of Appeals of Indiana | Memorandum Decision 18A-JV-1971 | April 16, 2019   Page 6 of 14
        14. Midwest Center for Youth and Families-no openings
            currently


        15. Gateway Woods Family Services: no openings


        16. Childplace: [S.C.] is too combative in nature


        17. Boystown: denied due to behaviors


        18. Capstone Academy: issues with licensing


        19. Cumberland Residential Placement: -too aggressive


        20. Eau Claire Academy: placed on waitlist


        21. Wernle: too violent for facility


        22. Campagna: denied placement due to her aggressive behavior


        23. Columbus Behavioral: denied placement due to her aggressive
            behavior


        24. Transitions: denied placement due to her aggressive behavior


        25. Valle Vista: denied placement due to her aggressive behavior


        26. Youth Service Bureau of Jay County: denied placement due
            to her aggressive behavior


        27. YOC. Denied placement due to her aggressive behaviors



Court of Appeals of Indiana | Memorandum Decision 18A-JV-1971 | April 16, 2019   Page 7 of 14
                At this time, youth has been accepted by Youth Villages in
                Tennessee. Youth is reportedly first on the waiting list.
                However, it should still be another month before an opening is
                available.


       Appellant’s App. Vol. II p. 139 (punctuation in original). 2


[12]   On July 20, 2018, the juvenile court held a hearing regarding the intimidation

       offense and the probation modification. At the hearing, the juvenile court

       started the discussion on what appeared to be the intimidation offense

       separately, stating:


                THE COURT: We are also set for disposition. State[,] what
                about that?




       2
         This court finds it concerning that no adequate placement for S.C. could be determined. This is especially
       worrisome in light of the fact that both S.C.’s parents are incarcerated, and other family members appear not
       to be an option, despite what those family members are communicating to S.C. At the June 15, 2018,
       hearing, DCS stated:

                [The aunt] stated to me that she does not want to take in [S.C.] at this time. She will be a
                support system for her. She works from 9 to 2 and 2:30 to 10, she also has an eighteen-
                year-old son and a seven-year-old daughter, so she is not willing – well she wants to work
                with [S.C.], she doesn’t – she is afraid that [S.C.] will run and not listen to her directions
                and the rules of her home. I also spoke with [S.C.’s] mother and father who are both
                incarcerated and her mother had stated that if we release – well if the court was to release
                [S.C.] to her Aunt who has marijuana in the home and allows her son to do whatever he
                wants to do, we can release her back to her grandmother, who is also using marijuana.


       Tr. p. 13. S.C. was placed with the grandmother on more than one occasion. See Appellant’s
       App. Vol. III p. 31.



       Court of Appeals of Indiana | Memorandum Decision 18A-JV-1971 | April 16, 2019                        Page 8 of 14
        [THE STATE]: State would ask to continue that til [sic] pending
        the new case.


        THE COURT: Uh no.


        [THE STATE]: Okay well the State is in agreement with
        probation’s recommendations for DOC.


        THE COURT: Anything else from probation?


        PROBATION: Not at this time.


        THE COURT: Counsel?


        [S.C.’S COUNSEL]: Judge[,] we are asking that the Court send
        that case back to the county that it came from [Allen County].
        My client was not properly given effective assistance of counsel,
        no attorney here would have ever admitted her open and
        allow[ed] her to make an open admission that would allow here
        [sic] to be committed to the Department of Correction. She was
        not properly informed, she was sitting in a court room where her
        attorney told her to say yes and that is what she did. . . . With
        respect to the modification that we admitted to the petition to
        modify that we are also set for [] continued probation, so I don’t
        know how we jump from continued probation to DOC. At our
        last hearing, we made an admission to a [petition to modify] for
        continued probation and I don’t know how all of the facts were
        known to the State at the time, about that out of county
        dispo[sition] and they agreed to continued probation so I don’t
        know how we could then jump to saying that DOC is the least
        restrictive alternative and the best interest of this child so based
        on that we would ask the Court not to proceed to disposition, to
        send it back to the county that it came from where she can have
        adequate representation, at this time.

Court of Appeals of Indiana | Memorandum Decision 18A-JV-1971 | April 16, 2019   Page 9 of 14
       Tr. pp. 17-18. The parties continued to debate the best placement for S.C. The

       juvenile court then abruptly stated:


               [S.C.,] I am going to commit you to the Department of
               Correction for placement in Girls School. I am going to rescind
               authorization for filing of the most recent JD matter. I am going
               to disapprove – I am going to rescind that.


                                                     *****


               That is 831 and I am not ordering TRP. I am going to
               recommend a term of six months and order that you continue
               with individual counseling and whatever vocational services
               DCS describes in the best interest and includes education and
               counseling. Alright. Thank you very much.


       Id. at 22.


[13]   As discussed above, the parties’ June 15, 2018, agreement regarding the

       probation modification meant S.C. would admit to the first probation violation,

       and the State would dismiss the second probation violation. Pursuant to this

       agreement, the State was supposed to recommend continued probation. Again,

       although the juvenile court did not state at the June 2018 hearing that it would

       take the agreement under advisement, we are able to determine from the

       juvenile court’s order dated June 15, 2018, that, after the hearing, the juvenile

       court took the agreement under advisement. No where in the record, however,

       points to whether the juvenile court ultimately accepted that agreement.




       Court of Appeals of Indiana | Memorandum Decision 18A-JV-1971 | April 16, 2019   Page 10 of 14
[14]   There are factors that lead us to conclude that the juvenile court did accept the

       agreement, including that a hearing was not held on the probation violation

       that led to the agreement. Furthermore, the juvenile court’s dispositional order

       on the modification petition indicates that the first probation violation was the

       basis for the juvenile court’s dispositional order on the modification petition.

       The second probation violation was not included as a basis for revoking

       probation on the juvenile court’s dispositional order on the modification

       petition, which was consistent with the parties’ agreement to dismiss the second

       probation violation, and to use the first probation violation as the basis for

       S.C.’s probation modification.


[15]   Still, we are not certain and are speculating about the trial court’s intentions.

       Whether the juvenile court accepted the agreement is an important fact,

       especially in light of S.C.’s argument that “the juvenile court accepted the

       admission agreement in its written order and the CCS[,]” and accordingly, the

       juvenile court was “bound by the terms of that agreement.” Appellant’s Br. p.

       19 (internal citations omitted).


[16]   Moreover, the State did not recommend probation at the disposition hearing as

       required pursuant to the agreement, which compounds the confusion of this

       Court. Pursuant to the agreement, the State agreed to recommend continued

       probation as a disposition for the probation modification. At the admission

       agreement hearing on June 15, 2018, the terms of the agreement were

       discussed, including continued probation for S.C. as described by S.C.’s

       attorney. At the July 18, 2018, hearing, the State’s attorney declared: “the State

       Court of Appeals of Indiana | Memorandum Decision 18A-JV-1971 | April 16, 2019   Page 11 of 14
       is in agreement with probation’s recommendations for DOC.” Tr. p. 17. While

       we believe this statement was with regard to S.C.’s disposition in the

       intimidation offense separately, it seems odd to us that at the dispositional

       hearings for the intimidation offense and the probation modification, the State

       only made a recommendation as to the intimidation offense, and that

       recommendation was the DOC in both cases. Both the State and the juvenile

       court appeared to forget about the agreement at the dispositional hearing.


[17]   At the July 20, 2018, hearing, the juvenile court entered a dispositional decree

       ordering S.C. to the DOC, but did not address the probation modification on

       the record. At the end of the dispositional hearing, the juvenile court simply

       declared that it would be granting wardship of S.C. to the DOC. The record,

       however, is unclear regarding whether that statement was in reference to the

       intimidation offense separately, or the probation modification. The juvenile

       court’s orders also included the same language on both orders, granting

       wardship of S.C. to the DOC. In other words, the juvenile court appears to

       have entered disposition as to the probation modification, without actually

       discussing the underlying claims of the modification petition at the hearing and

       without discussing the agreement between the State and S.C. with regard to the

       probation modification. S.C. now appeals.


                                                     Analysis

[18]   S.C. argues that the juvenile court erred in granting wardship to the DOC both

       in the intimidation offense and the probation modification. We are unable to

       answer these questions due to an incomplete record, and we must remand to
       Court of Appeals of Indiana | Memorandum Decision 18A-JV-1971 | April 16, 2019   Page 12 of 14
       the trial court to produce a clear and complete record with regard to S.C.’s

       disposition on the modification petition.


[19]   Specifically, we are unable to ascertain whether the juvenile court accepted the

       agreement. See, e.g. L.W. v. State, 798 N.E.2d 904, 907 (Ind. Ct. App. 2003)

       (finding a fact finding hearing was not conducted and was unnecessary only

       after the child and the State entered into a plea agreement). While we could

       speculate, we decline to do so. We are unable to piece together the series of

       events that occurred at the trial court, and we should not be required to do so.

       See In re Involuntary Termination of Parent-Child Relationship of N.G., 61 N.E.3d

       1263, 1266 (Ind. Ct. App. 2016) (“As we are not at liberty to scour the record to

       find evidence to support the judgment, we remand with instructions . . .”).


[20]   Moreover, because we are unable to even understand portions of the procedural

       decisions in S.C.’s disposition, we are unable to conclusively say there was not

       fundamental error in failing to address the agreement at S.C.’s disposition. See

       R.W. v. State, 975 N.E.2d 407, 411 (Ind. Ct. App. 2012) (“The fundamental

       error exception is extremely narrow, and applies only when the error constitutes

       a blatant violation of basic principles, the harm or potential for harm is

       substantial, and the resulting error denies the defendant fundamental due

       process”) (citations omitted), trans. denied.


[21]   We, therefore, reverse and remand to the juvenile court to generate a clear

       record, specifically with regard to its acceptance or denial of the agreement

       related to the probation modification. See Carter v. State, 686 N.E.2d 1254, 1263


       Court of Appeals of Indiana | Memorandum Decision 18A-JV-1971 | April 16, 2019   Page 13 of 14
       (Ind. 1997) (remanding for a new sentence “[b]ecause it [was] unclear which

       statute the court applied”); see also Manley v. Zoeller, 77 N.E.3d 1227, 1231 (Ind.

       Ct. App. 2017) (ordering the lower court to “clarify its striking of the July 21

       order of dismissal” after the record was unclear on why certain information was

       struck from the record); see also Ray v. State, 466 N.E.2d 1389, 1389 (Ind. Ct.

       App. 1984) (finding the record in the case unclear as to the issue of laches

       before the court, and accordingly, remanding the matter for a hearing on the

       issue). Furthermore, if the agreement is rejected, S.C. is entitled to a hearing on

       the probation modification. See In re M.T., 928 N.E.2d 266, 271 (Ind. Ct. App.

       2010) (“While the statute does not explicitly define the type of hearing required,

       basic due process principles and case law precedent lead us to conclude a trial

       court may not modify a juvenile’s disposition without a hearing at which the

       State presents evidence supporting the allegations listed in the revocation

       petition”), trans. denied.


                                                   Conclusion

[22]   We reverse and remand to the juvenile court to provide clarity in the record

       with regard to S.C.’s dispositions because we cannot adequately determine

       relevant information pertinent to S.C.’s appeal. Accordingly, the juvenile court

       shall hold hearings consistent with this opinion. We reverse and remand.


[23]   Reversed and remanded.


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




       Court of Appeals of Indiana | Memorandum Decision 18A-JV-1971 | April 16, 2019   Page 14 of 14
