FILED
Aug 20 2018, 10:30 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke Curtis T. Hill, Jr.
Wieneke Law Office, LLC Attorney General
Brooklyn, Indiana
Lee M. Stoy, Jr.
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
A.M., August 20, 2018
Appellant-Respondent, Court of Appeals Case No.
18A-JV-618
v. Appeal from the Kosciusko
Superior Court
State of Indiana, The Honorable David C. Cates,
Appellee-Petitioner Judge
Trial Court Cause No.
43D01-1708-JD-292
Crone, Judge.
Case Summary
[1] Fifteen-year-old A.M. was adjudicated a juvenile delinquent for conduct
amounting to class B misdemeanor battery if committed by an adult. He was
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placed on parental supervision/probation. He subsequently committed
criminal acts and violated other probation rules, and the State moved to modify
his placement. The trial court held a dispositional hearing and modified his
placement to the Department of Correction (“DOC”). A.M. now appeals,
claiming that the trial court abused its discretion by relying on insufficient
information and by failing to explain its reasons for modifying his placement to
the DOC. He also contends that he was denied his constitutional right to the
effective assistance of counsel during the modification hearing. Finding that the
trial court acted within its discretion in modifying A.M.’s placement and
concluding that A.M. was not denied his right to the effective assistance of
counsel, we affirm.
Facts and Procedural History
[2] A.M., born in June 2002, is a teenager with a history of emotional and
behavioral issues. At age eight, he began counseling to address his issues and
was enrolled at an alternative school. In his seven years of attendance at the
school, he was frequently truant and/or tardy and had multiple suspensions for
fighting, “explosive rage,” property destruction, e.g., throwing chairs and
flipping desks, and violent acts against school personnel. Appellant’s App. Vol.
2 at 65. At age ten, he had three true findings for acts amounting to class D
felony battery with bodily injury if committed by an adult. He was put in
parental placement under the supervision of the probation department. In the
ensuing years, he had several suspensions from school and several referrals to
the juvenile court, which were dismissed.
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[3] In 2017, A.M. beat up a fellow teenager at the fairgrounds, and the victim
required emergency room treatment for cuts on his face. This incident resulted
in a true finding for acts amounting to class B misdemeanor disorderly conduct
if committed by an adult. Again, A.M. was placed on supervised probation in
his mother and stepfather’s home. He was ordered to avoid all criminal
activity, avoid possession and use of controlled substances, alcohol, and
tobacco, attend school regularly, obey school rules and teachers, study for one
hour per school night, obey his parents, abide by an 8:00 p.m. curfew, assist in
meal preparation and clean up at home, prepare a list of long- and short-term
goals, participate in mental health services and anger management counseling,
submit a written apology to his victim, complete community service, and avoid
all direct and indirect contact with a certain named individual. Id. at 77.
[4] Within two months of the supervised probation order, A.M. was a suspect in a
burglary involving the residence of one of his classmates. Shortly thereafter, he
was arrested for acts amounting to class B misdemeanor battery if committed by
an adult, stemming from a physical altercation at the bus stop. He was
suspected of alcohol use, expelled from his alternative school, and wanted by
police for theft of a firearm. These developments prompted the State to seek a
modification of A.M.’s placement to the DOC. At the hearing on the motion to
modify, the parties stipulated to the redaction of the burglary- and alcohol-
related allegations. A.M. admitted to the remaining allegations in the motion
to modify, which included the battery allegation as well as the violation of
several rules, including those related to his conduct and attendance at school,
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conduct at home, curfew, participation in counseling, and the no-contact order.
The parties also stipulated to the admission of a police report in which A.M.
admitted to stealing a handgun. The trial court issued a dispositional order
finding that A.M. had committed criminal acts and violated several of the rules
of his placement. The court modified his placement to the juvenile division of
the DOC. A.M. now appeals the trial court’s order. Additional facts will be
provided as necessary.
Discussion and Decision
Section 1 – The trial court acted within its discretion in
modifying A.M.’s placement.
[5] A.M. asserts that the trial court abused its discretion in modifying his
placement. The disposition of a juvenile adjudicated a delinquent is a matter
committed to the trial court’s discretion, subject to the statutory considerations
of the child’s welfare, community safety, and the policy favoring the least harsh
disposition. R.H. v. State, 937 N.E.2d 386, 388 (Ind. Ct. App. 2010). We
review the trial court’s dispositions and modification thereof for an abuse of
discretion, which occurs if its decision is clearly against the logic and effect of
the facts and circumstances before it or the reasonable inferences that may be
drawn therefrom. Id.; see also K.A. v. State, 775 N.E.2d 382, 386 (Ind. Ct. App.
2002) (applying abuse of discretion standard where juvenile challenged
modification of placement to DOC following her violation of terms of
suspended commitment), trans. denied. In determining whether a trial court has
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abused its discretion, we neither reweigh evidence nor judge witness credibility.
Ripps v. State, 968 N.E.2d 323, 326 (Ind. Ct. App. 2014).
[6] The crux of A.M.’s argument is that the trial court modified his placement to
the harshest option – the DOC – without sufficient information concerning his
circumstances and without adequately explaining its reasons for doing so.
Juvenile court proceedings are civil, not criminal, in nature. T.K. v. State, 899
N.E.2d 686, 687-88 (Ind. Ct. App. 2009). “[T]he goal of the juvenile process is
rehabilitation so that the youth will not become a criminal as an adult.” Id. As
such, juvenile courts have a variety of placement choices. Id. Indiana Code
Section 31-37-18-6 reads,
If consistent with the safety of the community and the best
interest of the child, the juvenile court shall enter a dispositional
decree that:
(1) is:
(A) in the least restrictive (most family like) and most appropriate
setting available; and
(B) close to the parents’ home, consistent with the best interest
and special needs of the child;
(2) least interferes with family autonomy;
(3) is least disruptive of family life;
(4) imposes the least restraint on the freedom of the child and the
child's parent, guardian, or custodian; and
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(5) provides a reasonable opportunity for participation by the
child’s parent, guardian, or custodian.
[7] Indiana Code Section 31-37-18-9(a)(5) requires the trial court to state its reasons
for the disposition chosen. This involves the trial court’s issuance of written
findings and conclusions concerning the child’s care, treatment, rehabilitation,
or placement; parental participation in the plan; efforts made to prevent the
child’s removal from the parent; family services offered; and the court’s reasons
for its disposition. Ind. Code § 31-37-18-9(a)(1)-(5).
[8] With respect to the sufficiency of the information to support the trial court’s
decision, we note that the trial court specifically incorporated by reference all
the pleadings and papers of the service providers and probation department.
Appellant’s App. Vol. 2 at 137. These documents include probation
department reports and correspondence, A.M.’s lengthy school disciplinary
record, his juvenile criminal history, including victim incident reports, his
records from the counseling center, and the police report in which he admitted
to having recently stolen a handgun. In short, there is no dearth of information
in the record to support the trial court’s modification order. A.M.’s claims to
the contrary amount to invitations to reweigh evidence, which we may not do.
See Ripps, 968 N.E.2d at 326.
[9] A.M. also claims that the trial court committed reversible error in failing to
adequately explain its reasons for modifying his placement. We disagree. The
trial court specified several reasons in its dispositional order, including that
A.M. committed battery while in his current placement, left home without
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permission, made verbal threats to his family, was expelled from school, failed
to abide by the court-ordered curfew, failed to comply with counseling services,
and continued to have contact with the named individual with whom all
contact was prohibited. Appellant’s App. Vol. 2 at 134, 136-37. The court
concluded, in relevant part,
That by reason of the foregoing facts the Court finds respondent
child has not behaved well, is effectively beyond the control of
his parent(s).
The Court further finds that reasonable efforts were made to
prevent the child’s removal from the child’s parent(s) by placing
subject on formal supervision on October 30, 2017, and [he] has
failed to abide by and comply with Rules of Supervision set forth
by the Court on that date, and as more fully outlined in the
Modification Report and Request for Modification of
Dispositional Decree filed herein.
The child needs further family preservation services of care,
treatment, and rehabilitation that the parent cannot offer at this
time. The removal of the child was authorized and necessary as
remaining in the home would be contrary to the best interests
and safety and welfare of the child. Reasonable efforts to prevent
the removal of the child from his home have been made and as
set forth in the pleadings and papers of the Probation and or all
other service providers filed herein are incorporated by reference.
It is in the best interests and safety and welfare of the child to
remain outside of the parent’s custody.
This disposition is consistent with the safety and the best interest
of the child and is the least restrictive and most appropriate
setting available close to the parent’s home, least interferes with
the family autonomy, is least disruptive of family life, and
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imposes the least restraint on the freedom of the child and the
child’s parents.
Id. at 137.
[10] The record indicates that A.M.’s expulsion from his alternative school was a
significant factor in evaluating his best interest. Probation officer reports and
testimony show that due to excessive absences, tardies, suspensions, and
eventual expulsion, A.M. was receiving only three to four hours of education
each week and that his best interest would be to attend school while in the
DOC. See Tr. Vol. 2 at 6. The trial court expressed its concern not only about
A.M.’s continued rule-breaking and criminal conduct but also about the impact
on his education and his prospects for resuming a full-time education, a critical
piece of his rehabilitation:
[A.M.], back at the end of October of last year you were here for
disposition and you were placed upon supervision with certain
rules. One of those basic rules was to quit taking actions which
would be crimes if committed by an adult. It looks like you chose
not to abide by that rule. You were to abide by the rules of your
parent. You chose not to abide by that rule. You’re not getting an
education. You’re committing acts which would be crimes,
felonies, major crimes. I’m going to adopt the recommendation
from my Probation Department and direct that your wardship be
placed with the Indiana Department of Corrections, Juvenile
Division, for completion of that program. How long you are
there is largely determined by your attitude and the effort you
place to complete that program. It is my hope that you will be
successful in that program, and that you take a good attitude to
that.
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Id. at 7-8.
[11] Loss of parental control was also a critical factor in the trial court’s decision.
For the preceding eight years, A.M. was placed in less restrictive placements
with parental supervision. These simply did not work. He continued to
commit violent acts both in and out of school. He demonstrated no respect for
the rules of his supervised placement, disregarded his court-imposed curfew,
and disobeyed his mother and stepfather. His family relationships declined to
the point where he left home for extended periods and threatened his family
when they reported him to probation officers. These circumstances do not bode
well concerning A.M.’s prospects for success with less restrictive options such
as electronic monitoring or in-home detention.
[12] A.M. argues that the trial court should have conducted a more thorough
inquiry into various issues such as the effect of his emotional disability on his
conduct and his prospects for successful rehabilitation through less restrictive
placement options. The court considered the school’s expulsion report, which
stated that the expulsion committee found no connection between A.M.’s
conduct and his emotional disability. Moreover, the counseling center reports
indicate that A.M. made little to no progress during his supervised placement in
this case. The probation department found him to be a danger to himself and
others and concluded that the DOC would provide him with the best chance of
receiving an education and the services he needs to reform. Simply put, A.M.’s
lengthy record of criminal and behavioral issues spans several years, and time
after time, he has been afforded less restrictive placements and has failed to
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respond positively. The trial court found that given the loss of parental control
and A.M.’s expulsion from school, these failed placement options are no longer
viable. The trial court acted within its discretion in modifying A.M.’s
placement to the DOC.1
Section 2 – A.M. was not denied his constitutional right to
effective assistance of counsel.
[13] Finally, A.M. maintains that he was denied his constitutional right to the
effective assistance of counsel at the disposition modification hearing. Raising
ineffectiveness of counsel on direct appeal is permissible, but in doing so, the
defendant proceeds without the benefit of a developed record and will be barred
by res judicata from raising the issue in subsequent proceedings. Brewington v.
State, 7 N.E.3d 946, 978 (Ind. 2014), cert. denied (2015).
[14] The Sixth Amendment to the U.S. Constitution and Article 1, Section 13 of the
Indiana Constitution guarantee a criminal defendant the right to counsel. The
Supreme Court of the United States “has recognized that ‘the right to counsel is
the right to the effective assistance of counsel.’” Strickland v. Washington, 466
U.S. 668, 686 (1984) (quoting McMann v. Richardson, 397 U.S. 759, 771, n.14
(1970)). The parties do not dispute that juveniles also have a constitutional
right to counsel. See also Ind. Code §§ 31-32-2-2, 31-32-4-1 (expressing
juvenile’s statutory right to counsel). However, the parties disagree concerning
1
In his reply brief, A.M. claims that the trial court erred in failing to advise him of his right to appeal the
modification order. Because he did not raise the issue in his primary brief, it is waived. See French v. State,
778 N.E.2d 816, 825-26 (Ind. 2002) (issues raised for the first time in appellant’s reply brief are waived).
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the appropriate standard to be applied to an ineffective assistance claim in the
context of juvenile delinquency disposition modification proceedings. A.M.
maintains that his attorney’s performance must be assessed according to the
two-pronged test found in Strickland. 466 U.S. at 687. The Strickland test,
rooted in the Sixth Amendment, requires the defendant to demonstrate both
deficient performance and prejudice resulting from it. Id.; Ritchie v. State, 875
N.E.2d 706, 714 (Ind. 2007). A.M. relies on S.T. v. State, 764 N.E.2d 632, 634-
35 (Ind. 2002), which applied the Strickland test in evaluating counsel’s
performance during a juvenile delinquency adjudication. The State relies on In
re Gault, 387 U.S. 1, 35-41 (1967), where the United States Supreme Court held
that a juvenile has a right to counsel during delinquency proceedings and that
this right is rooted in the Due Process Clause of the Fourteenth Amendment
rather than in the Sixth Amendment. There is a lack of clarity and consistency
among and even within jurisdictions concerning the source and applicability of
the constitutional right to counsel enjoyed by juveniles in delinquency
proceedings.2
2
See, e.g., People v. Austin M., 975 N.E.2d 22, 39 (Ill. 2012) (holding that minors in delinquency proceedings
have right to a defense attorney, and in particular, the effective assistance of counsel as recognized in Gault);
State in Interest of W.B., 206 So. 3d 974, 985 (La. Ct. App. 2016) (applying two-pronged Strickland test in
assessing counsel’s performance during juvenile delinquency adjudication hearing); State ex rel. K.M.T., 18
So. 3d 183, 192 (La. Ct. App. 2009) (noting Gault’s distinction between adjudication phase and disposition
phase in juvenile proceedings and then applying Strickland’s two-pronged test and concluding that minor
failed to establish ineffective assistance of counsel during either phase); In re Parris W., 770 A.2d 202, 206-07
(Md. Ct. Spec. App. 2001) (citing Gault concerning source of juvenile’s right to counsel as due process clause
and applying Strickland’s two-pronged test for assessing counsel’s performance); In re C.S., 874 N.E.2d 1177,
1187-88 (Ohio 2007) (adopting Gault analysis, finding that juvenile’s right to counsel arises from due
process); In re C.R., No. 13CA3411, 2014 WL 1875787, at *5 (Ohio Ct. App. Apr. 30, 2014) (applying
Strickland’s two-pronged test to ineffective assistance claim in juvenile proceeding to determine juvenile’s
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[15] Under a due process analysis, the reviewing court applies a less stringent
standard in reviewing counsel’s performance: “If counsel appeared and
represented the petitioner in a procedurally fair setting which resulted in a
judgment of the court, it is not necessary to judge his performance by rigorous
standards.” Jordan v. State, 60 N.E.3d 1062, 1068 (Ind. Ct. App. 2016) (quoting
Childers v. State, 656 N.E.2d 514, 517 (Ind. Ct. App. 1995), trans. denied (1996)).
This less stringent standard has been applied to assess counsel’s performance in
post-conviction proceedings, Baum v. State, 533 N.E.2d 1200, 1201 (Ind. 1989),
and in probation revocation proceedings, Jordan, 60 N.E.3d at 1069.
[16] Indiana courts have not squarely addressed whether the two-pronged Strickland
test or the due process test is the proper test to be used in analyzing the
effectiveness of juvenile’s counsel during the various phases of delinquency
proceedings, and we encourage our supreme court to provide guidance in this
area. A.M. correctly observes that the S.T. court applied the Strickland test in
assessing counsel’s performance during his juvenile delinquency adjudication.
764 N.E.2d at 634-35. However, there is no indication that the court
considered or mandated that standard for pre- or post-adjudicative phases. Id.
offender classification); In re K.J.O., 27 S.W.3d 340, 342-43 (Tex. Ct. App. 2000) (concluding that although
juvenile delinquency trial is civil proceeding, it is quasi-criminal, thus guaranteeing juvenile the right to
effective assistance of counsel per Strickland); and In Interest of LDO, 858 P.2d 553, 556 (Wyo. 1993) (applying
Strickland’s two-pronged analysis for evaluating counsel’s performance during juvenile delinquency
adjudication hearing). Essentially, it appears that the courts that are applying Gault’s holding that a juvenile
has a due process right to counsel during delinquency proceedings per the Fifth and Fourteenth Amendments
are often applying a Strickland analysis, rooted in the Sixth Amendment, when analyzing the effectiveness of
the juvenile’s counsel during the adjudication phase, or in the case of C.R., to the juvenile offender
classification phase. See C.R., 2014 WL 1875787, at *5. Whether the various courts have intentionally
considered and rejected an alternate analysis or simply defaulted to a Strickland analysis is not apparent.
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S.T.’s ineffective assistance claim pertained to counsel’s performance during the
delinquency adjudication phase, not the pre-adjudicative or post-adjudicative
phases. Id. at 634. The Gault court noted a distinction between the various
phases of juvenile proceedings:
We do not in this opinion consider the impact of these
constitutional provisions upon the totality of the relationship of
the juvenile and the state. We do not even consider the entire
process relating to juvenile “delinquents.” For example, we are
not here concerned with the procedures or constitutional rights
applicable to the pre-judicial stages of the juvenile process, nor do
we direct our attention to the post-adjudicative or dispositional
process. We consider only the problems presented to us by this
case. These relate to the proceedings by which a determination is
made as to whether a juvenile is a “delinquent” as a result of
alleged misconduct on his part, with the consequence that he
may be committed to a state institution. As to these proceedings,
there appears to be little current dissent from the proposition that
the Due Process Clause has a role to play. The problem is to
ascertain the precise impact of the due process requirement upon
such proceedings.
387 U.S. at 13-14 (citation omitted).
[17] We believe that these proceedings – not for the delinquency adjudication itself
but for a modification of the disposition – are most akin to probation revocation
proceedings, which are quasi-civil in nature and involve the factual
determination that the probationer has violated a term of his probation followed
by the entry of a disposition modification or revocation. See Woods v. State, 892
N.E.2d 637, 640 (Ind. 2008) (in probation revocation proceedings, trial court
first determines whether a violation occurred and then determines whether the
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violation warrants revocation). As such, much like in the case of a probationer,
counsel’s appearance for and representation of a juvenile in a procedurally fair
setting resulting in judgment would make it unnecessary to judge his
performance by Strickland’s more rigorous standards. See Jordan, 60 N.E.3d at
1068.
[18] A.M. claims that counsel did nothing to promote his interests, and thus he
essentially received no assistance from counsel. We disagree. The record
shows that counsel negotiated a stipulation with the State whereby three of the
allegations in support of modification were redacted; these allegations were that
A.M. possessed an alcoholic beverage, consumed an alcoholic beverage on a
school bus, and committed burglary. These alleged acts were not only
violations of A.M.’s supervised probation rules but also criminal conduct that
could have resulted in additional true findings. As such, the negotiation of the
stipulation was neither insignificant nor against A.M.’s best interest. In this
respect, we note that even under the Strickland test, this evidence supports a
finding of effective, not deficient, performance. To the extent that A.M. focuses
on the result, “the harshest disposition available,” as evidence of ineffective
assistance, this argument improperly presupposes that any client who ultimately
receives the maximum sentence or harshest penalty otherwise allowed by law
necessarily received ineffective assistance of counsel. Appellant’s Reply Br. at
13. As discussed, it was A.M.’s continued failure to adhere to the law and the
rules of his placement that caused his placement to be modified to the most
restrictive option.
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[19] A.M. also cites counsel’s closing remarks as evidence that counsel essentially
had given up and failed to advocate for his best interest:
[Counsel]: I am befuddled by the actions of [A.M.]. I think he’s
a good kid. I think he’s got a bright future ahead of him. He’s
smart, has some real opportunities, but the path he’s going down
is leading him to prison and he’s just going to end up wallowing
away there, probably spend most of his life there. You don’t
break into people’s houses, you don’t steal guns, don’t follow the
rules, get kicked out of school. You don’t get an education and
that’s going to end up being his downfall. I think except for being
kicked out of [school], he could have had an opportunity here.
He could have been on home detention and shown everybody
that he could do right. Instead he’s going to go to the DOC, go to
Logansport for an evaluation, do his six months, eight months or
a year, as long as he does right, and hopefully will come back and
have learned a lesson. I have a lot of hope for [A.M.]. I hope he
understands that what’s going to happen here is not a
punishment but rather a chance to get a leg up in life and to try to
do the right thing. I hope he does good, and when he comes back
he can really grow and be a good kid.
Tr. Vol. 2 at 6-7.
[20] Counsel’s closing remarks do not amount to a violation of A.M.’s right to the
effective assistance of counsel, whether under a due process analysis or a
Strickland analysis. Under a due process analysis, counsel appeared at a
procedurally fair modification hearing and negotiated a redaction of three
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allegations against A.M., all involving criminal conduct.3 Based on the
foregoing, we conclude that A.M. has failed to meet his burden of establishing
that he was denied his constitutional right to counsel during his disposition
modification proceedings. Consequently, we affirm.
[21] Affirmed.
Bailey, J., and Brown, J., concur.
3
Under Strickland, counsel’s remarks do not amount to deficient performance, especially when considered
together with the negotiated redactions. Nor does the mere fact that A.M. received the harshest available
placement amount to a showing of prejudice under Strickland. See Strickland, 466 U.S. at 694 (prejudice prong
necessitates showing of reasonable probability that but for counsel’s deficient performance, the outcome
would have been different).
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