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
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
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”).
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[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
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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.
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[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
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(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.
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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.
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E.C. v. State of Indiana (mem. dec.)
Combined Opinion