MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Apr 30 2019, 11:05 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
Deborah Markisohn Curtis T. Hill, Jr.
Marion County Public Defender Attorney General of Indiana
Agency, Appellate Division Benjamin J. Shoptaw
Indianapolis, Indiana Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
N.F., April 30, 2019
Appellant, Court of Appeals Case No.
18A-JV-2655
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Marilyn A.
Appellee. Moores, Judge
The Honorable Gary Chavers,
Magistrate
Trial Court Cause No.
49D09-1807-JD-854
Brown, Judge.
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[1] N.F. appeals the juvenile court’s disposition of his case following a
determination that he is a juvenile delinquent. N.F. raises one issue which we
revise and restate as whether the court committed fundamental error by failing
to specifically ask him whether he wanted to address the court to make a
statement in allocution at the dispositional hearing. We affirm.
Facts and Procedural History
[2] N.F., who was born in October 2000, was in a dating relationship with L.P. and
resided with her. On July 25, 2018, N.F. and L.P. argued, and N.F. broke
L.P.’s cell phone and slapped her which caused L.P. to feel pain. The State
alleged N.F. to be a delinquent child for acts constituting the following crimes if
committed by an adult: Count I, domestic battery as a class A misdemeanor;
Count II, battery resulting in bodily injury as a class A misdemeanor; and
Count III, criminal mischief as a class B misdemeanor.
[3] On August 22, 2018, the court held a hearing, N.F.’s counsel indicated that
N.F. would enter admissions to Counts I, II, and III, and N.F. admitted the
allegations. The court found a sufficient factual basis to adjudicate N.F. to be a
delinquent child. His mother stated that he had a “violent history,” had placed
his hands on her several times, “gets very angry,” and that she “actually
emailed Probation about thirty pages of run ins that we’ve had with the law
since mid October 2015.” Transcript Volume II at 12-13. She also stated that
she told N.F., “One of these days, I’m going to either wake up in the hospital,
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or my three kids are going to wake up without a mom.” Id. at 13. The court
ordered a psychological evaluation of N.F.
[4] In a pre-dispositional report filed on September 17, 2018, the probation officer
indicated that N.F. stated:
I feel bad about it. I made a bad decision. I had a job. What I
would want to happen is to go home to mom, finish high school
and get a job. If that is not possible I would prefer to go to
placement over the Department of Corrections. I would be open
to group home. I will be 18 soon and would like help to be on
my own. I would also like house arrest. I just want to get out of
trouble. I just want to do what I can to finish high school. I
want to be a Welder. I want to get out to start this.
Appellant’s Appendix Volume II at 89. The report indicated that N.F.’s mother
stated that N.F. had been violent towards her since around the age of 14, and
that, when he was residing with her, she and her daughter would sleep with
their door locked because they were afraid of him. The report stated that N.F.’s
mother was in the military and was currently re-enlisting, that he had not lived
with his mother for a very long time, and that he stated that he did not have a
good relationship with his mother and her boyfriend and had physical
altercations with his mother’s boyfriend. N.F.’s overall risk assessment score
places him in the high risk to reoffend category. The report also indicated that
probation recommended that he be released to his mother’s care.
[5] On September 26, 2018, the court held a dispositional hearing. N.F.’s counsel
asserted that his aunt was willing to have him in her household, that the case
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did not involve a serious injury, that he had been detained for two months
already was five credits away from graduating from Warren Central High
School, and that he did not have a serious history of true findings.
[6] N.F.’s mother testified that she did not want him in her home, that he always
had a great relationship with his aunt,1 and that she was worried about the
safety of his younger sister. Amber Keegan testified that she and N.F.’s mother
had been best friends for about fifteen years, that she has four children, that he
would have to know he has to go to school, that he could sleep on the couch,
and that he had never threatened her or her children. Upon questioning by
N.F.’s counsel, Keegan stated that N.F. had always been very respectful and
behaved. Upon questioning by the prosecutor, Keegan stated that she was
aware that N.F. had been violent with his mother.
[7] The court took a recess and then indicated that it had a brief conference and
that it was the court’s position that the matter needed to be continued to give
N.F.’s counsel more time to “put together . . . a potential plan.” Transcript
Volume II at 27. N.F.’s counsel asked: “Perhaps as a test option . . . releasing
him to Ms. Keegan on Electronic Monitor and on GPS unit for the time being
for the week?” Id. at 30. The court denied the request.
1
When asked if she and the aunt were sisters, N.F.’s mother stated: “Not biologically, your Honor.”
Transcript Volume II at 23.
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[8] On October 4, 2018, the court held a hearing at which N.F.’s counsel
mentioned that N.F. had one prior misdemeanor in Hamilton County, that he
had been in detention for seventy days, that no serious injury was involved, and
that he was five credits away from graduating. He requested probation with
community-based services and placement in Keegan’s home. He also stated:
I want the Court to be aware however, that if the Court were to
reject that . . ., [N.F.] is fully prepared to cooperate and take full
advantage of a placement at Fairbanks. [H]e recognizes that he
has . . . demonstrated substance abuse issues in the past, and that
those play a certain part . . . in the behaviors that have gotten him
in trouble here today.
Id. at 33. He also stated the Department of Correction (“DOC”) “is . . . way
out line [sic] with what’s typical and what is required for this.” Id. N.F.’s
mother stated that “last time when I spoke to [N.F.], I was able to see changes,
but I said he’s very manipulative too. He can pull the wools [sic] over my eyes,
but I’m hoping that that’s not the case . . . .” Id. at 38. Keegan stated in part
that N.F.’s mother mentioned Fairbanks to her and: “I kind of agree with
Fairbanks.” Id. at 39. The prosecutor stated that the DOC “is the only option
at this point,” mentioned the concern that Keegan has four children in her
home, and stated that she was unsure that thirty days in Fairbanks would be
sufficient for “him to get on the right track.” Id. at 40.
[9] After a recess, the court informed N.F. that it was going to reset the hearing for
the following day and that it was not going to send him straight home or
straight to Keegan, and he indicated that he understood. The court asked N.F.
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if he turned eighteen on Monday, and he responded affirmatively. The court
also asked N.F.’s counsel, “[I]s there anything else you would want on the
record?” Id. at 42.
[10] On October 5, 2018, the court held a hearing at which the following exchange
occurred:
THE COURT: . . . The Court is now ready to issue a ruling. I
do want to give the opportunity, State anything else you want to
add today?
[Prosecutor]: Nothing Judge.
THE COURT: [N.F.’s Counsel]?
[N.F.’s Counsel]: No Judge.
Id. at 44. The court ordered that N.F. be committed to the DOC for placement
at a juvenile correctional facility, that the commitment “is up until his twenty-
first birthday unless sooner released by the [DOC],” and that the court would
make a recommendation of nine months at the DOC. Id. The court requested
that the DOC consider N.F. for the Logansport Facility for the Cliff Unit, and
stated that placement is a decision that would be made by the DOC after the
two-week diagnostic at Logansport.
[11] That same day, the court entered a Dispositional Decree on Delinquency which
found in part that: N.F. has prior history in another jurisdiction; he had two
stays at the Youth Crisis Center in Jacksonville, Florida, including one stay for
a burglary arrest; he was on probation in Hamilton County and spent several
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months at White’s Residential Facility; and Mother stated that he is violent
toward her in the home. The order also stated:
Dr. Jim Dalton completed a psychological evaluation on [N.F.]
and found [N.F.] to have a primary diagnosis of polysubstance
abuse/dependence and a secondary diagnosis of conduct
disorder.
Dr. Dalton added the following:
“It is important to note that while [N.F.] has a very limited
history with the Marion Superior Court, his history of
maladjustment in other jurisdictions and in his everyday
living has been quite severe over the last many years.
Interventions of the Court and of treatment professionals
have not had significant impact on this youth’s behaviors
and risks to date. As noted, he is at high risk for
maladjustment.”
“What is known is that residential placement is not likely
to produce any long term and sustained change for this
young man. He may participate in care during his
placement, but his risk is likely to return quickly when
discharged. However, a placement may be the only option
to consider – and quite honestly, may be the only way that
this youth finishes high school, stays away from drugs and
gains some vocational skills and directions going forward.
He is not likely to do these things if released to the
community.”
“In this regard commitment to the [DOC] may have a
chance to have similar impacts – completing a GED,
gaining job skills, and being abstinent [from] drug and
alcohol abuse. DOC commitment may be considered (if
applicable to legally be considered) due to the lack of
efficacy of a previous residential placement setting.”
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“This youth’s prognosis is very serious and very
concerning. If he does not complete his high school
education, does not have a basic vocational skill developed
over the next 4 to 6 months, he will be in jail/prison at a
young age or may have worse outcomes (e.g. death).”
Appellant’s Appendix Volume II at 117.
Discussion
[12] The issue is whether the court committed fundamental error by failing to
specifically ask N.F. whether he wanted to address the court to make a
statement in allocution at the dispositional hearing. N.F. acknowledges that his
counsel did not object to the court’s failure to provide him with an opportunity
to address the court prior to pronouncing disposition and that this case is
reviewed for fundamental error. He asserts the court was required to inform
him he had the right to be heard and inquire whether he wished to exercise this
right. He argues that, while the court heard from Mother repeatedly and at
length, it never heard from him directly. Without citation to authority, N.F.
asserts that, “[i]n contrast to the approach taken by a panel of this Court in
D.M. [v. State, 108 N.E.3d 393 (Ind. Ct. App. 2018), trans. denied,] consideration
of a claim of fundamental error does not involve consideration of the totality of
the facts and circumstances.” Appellant’s Brief at 22.
[13] The State argues that N.F. waived his right to allocution by failing to object and
that the court did not commit fundamental error. It contends that almost every
analysis of error involves some form of review of the facts and circumstances.
The State asserts that N.F.’s counsel argued for a lesser placement than the
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DOC at every stage of the dispositional hearing, that he had a history of
delinquent and/or violent conduct, and that it is highly unlikely that the
juvenile court’s ruling would have been swayed by hearing him personally ask
the same request as his Mother and counsel.
[14] Fundamental error is an extremely narrow exception to the contemporaneous
objection rule that allows a defendant to avoid waiver of an issue. D.M., 108
N.E.3d at 395. Fundamental error occurs when an error constitutes a blatant
violation of basic principles, the harm or potential for harm is substantial, and
the error deprives a party of fundamental due process. Id. The fundamental
error exception is available only in egregious circumstances. Id.
[15] “In criminal cases involving adults, a defendant’s right to offer a statement on
his or her behalf before the trial court pronounces sentence is known as the right
of allocution, which has been recognized in the common law since at least
1682.” Id. (quoting Vicory v. State, 802 N.E.2d 426, 428 (Ind. 2004)).
[16] “As a general rule, ‘[t]he standard for determining what due process requires in
a particular juvenile proceeding is “fundamental fairness.”’” Id. (quoting D.A.
v. State, 967 N.E.2d 59, 64 (Ind. Ct. App. 2012) (quoting S.L.B. v. State, 434
N.E.2d 155, 156 (Ind. Ct. App. 1982))). The Legislature has specifically
explained who must be allowed to speak at juvenile dispositional hearings 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:
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(1) party or person for whom a summons is required to be
issued under IC 31-37-12-2; and
(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.
Ind. Code § 31-37-18-1.3. Ind. Code § 31-37-12-2 requires a juvenile court to
issue a summons to the child, the child’s parent, guardian, custodian, or
guardian ad litem, and “[a]ny other person necessary for the proceedings.”
[17] In D.M., we addressed whether a juvenile court committed fundamental error
by its failure to specifically ask D.M. whether he wanted to address the court to
make a statement in allocution at the dispositional hearing. 108 N.E.3d at 394.
We held:
We find it to be indisputable that the better practice in this case
would have been for the juvenile court to have specifically asked
D.M. if he wanted to make a statement before pronouncing
disposition of the case. It would not have taken more than a few
minutes and would have ensured that the court directly heard
one of the most important perspectives—that of the juvenile. As
has been stated in criminal cases, “‘The right of allocution is
minimally invasive of the sentencing proceeding; the requirement
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of providing the defendant a few moments of court time is
slight.’”
Id. at 395 (quoting Vicory, 802 N.E.2d at 429 (quoting United States v. Barnes, 948
F.2d 325, 331 (7th Cir. 1991))). We stated that the analysis does not end there
and that we must look at the totality of the facts and circumstances in
determining whether the juvenile court denied D.M. fundamental fairness. Id.
In light of the arguments of D.M.’s counsel, D.M.’s extensive juvenile record,
and D.M.’s proposed probation plan which included living with his mother
even though she had previously told probation officers that D.M. had refused to
comply with her curfews, we concluded that the juvenile court’s failure to
specifically ask D.M. if he wanted to make a statement was not a blatant
violation of basic principles, did not pose a potential of substantial harm, and
did not deprive D.M. of fundamental due process. Id. at 396.
[18] The record reveals that N.F.’s counsel argued for alternative placements to the
DOC. The record includes an August 2016 order indicating that N.F. was
adjudicated a delinquent for an act that would constitute disorderly conduct as
a class B misdemeanor if committed by an adult. In March 2017, the court
entered an order finding that “[w]hile on probation and receiving services, the
information indicates that on multiple occasions (including after release from
secure detention) [N.F.] continued to use controlled substances including
marijuana and methamphetamine,” and ordered that N.F. be placed at White’s
Residential and Family Services. Appellant’s Appendix Volume II at 13. The
record includes an Individual Treatment Plan dated September 14, 2017, which
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indicates that N.F.’s arrest history includes charges of disorderly conduct,
battery, truancy, curfew violation, trespassing, runaway, and probation
violation. The Probation Officer’s Report of Preliminary Inquiry indicates that
N.F. has a prior true finding in Hamilton County for disorderly conduct as a
class B misdemeanor from August 2016 and a prior history in Johnson County
although he does not have any true findings. N.F. does not specifically
challenge the juvenile court’s finding that he had prior history in another
jurisdiction including burglary, the finding that Mother stated that N.F. is
violent toward her in the home, or its findings regarding Dr. Dalton’s report.
We also note that the pre-dispositional report which was filed on September 17,
2018, included N.F.’s statement, and the juvenile court stated at the September
26, 2018 hearing that it “reviewed the pre-disposition report.” Transcript
Volume II at 16. Based upon the record and under these particular
circumstances, we cannot say that N.F. has established fundamental error.
[19] For the foregoing reasons, we affirm the judgment of the juvenile court.
[20] Affirmed.
May, J., and Mathias, J., concur.
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