In re: K.M.M. v. State of Indiana (mem. dec.) ( 2018 )

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
Jan 25 2018, 11:07 am
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Joann M. Price Curtis T. Hill, Jr.
Merrillville, Indiana Attorney General of Indiana
Ian McLean
Supervising Deputy Attorney
General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In re: K.M.M., January 25, 2018
Appellant-Respondent, Court of Appeals Case No.
45A03-1706-JV-1267
v. Appeal from the Lake Superior
Court, Juvenile Division
State of Indiana, The Honorable Thomas P.
Appellee-Petitioner Stefaniak, Judge
The Honorable Jeffrey Miller,
Magistrate
Trial Court Cause No.
45D06-1703-JD-134
Altice, Judge.
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Case Summary
[1] K.M.M. appeals from the trial court’s decision to commit him to the
Department of Correction (DOC) for having committed an act that would be
Class A misdemeanor dangerous possession of a firearm if committed by an
adult. K.M.M. presents two issues for review:
1. Whether the trial court violated K.M.M.’s due process rights
when, after taking disposition under advisement to await an
updated psychological evaluation, the trial court entered a
disposition order without holding another hearing?
2. Did the juvenile court abuse its discretion in committing
K.M.M. to the DOC?
[2] We affirm.
Facts & Procedural History
[3] On February 27, 2017, the State alleged that sixteen-year-old K.M.M. was a
delinquent child for having committed acts that would constitute Class A
misdemeanor dangerous possession of a firearm if committed by an adult, Level
5 felony theft if committed by an adult, and Class B misdemeanor possession of
marijuana if committed by an adult. An initial hearing was held on March 3,
2017, and counsel was appointed for K.M.M. At the start of an April 18, 2017
hearing, K.M.M.’s counsel informed the court that an agreement had been
reached, pursuant to which K.M.M. would admit to the act of dangerous
possession of a firearm, the remaining allegations would be barred, and
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disposition would be left to the juvenile court. K.M.M.’s attorney also advised
the court that the parties would “argue disposition.” Transcript at 5. After
K.M.M. admitted to the act of dangerous possession of a firearm, the juvenile
court turned to disposition.
[4] The court first inquired of a probation officer, who recommended that K.M.M.
be re-committed to the DOC. The probation officer explained the basis for this
recommendation as follows:
[K.M.M.] has been afforded numerous services. He was on
intensive probation level 2 which he failed. He had just recently
returned from the [DOC] a little over a month ago when the new
referral came in. He’s had counseling, drug testing, time at the
Lake County Juvenile Center, formal probation, drug testing.
All these services that have been in place haven’t precluded him
from re-offending. I believe, this is his third referral for a firearm.
Probation does not believe that any time back in the community
would be a benefit to him.
Id. at 6-7. The State agreed with the probation department’s recommendation,
further noting that the present referral was K.M.M.’s sixth referral to the court
for delinquencies.
[5] In response, K.M.M.’s counsel pointed out that K.M.M. was enrolled in high
school and that his mother was willing to be responsible for him if he were
placed with her. While acknowledging that the firearm offense “is not anything
trivial,” counsel noted that K.M.M. had accepted responsibility and that he had
already been detained for forty-seven days. Id. at 7. Counsel requested that the
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court place K.M.M. on home detention with his mother or in an alternative
residential placement instead of the DOC.
[6] K.M.M.’s therapist was also present at the hearing and the trial court asked for
his perspective. The therapist explained that he had worked with K.M.M. for
approximately three weeks prior to the instant referral and that they “were still
in the stages of setting goals, helping [K.M.M.] understand what his
expectation is in the community.” Id. at 8. He further explained to the court
that K.M.M. reported feeling “unsafe” because “[p]eople . . . were coming after
him based off of some choices he made in the past. So he kind of felt the need
to have a gun.” Id. K.M.M. also talked to his therapist about having anger
management issues. The therapist mentioned that K.M.M. had presented the
option of moving to Indianapolis to live with his cousin, which the therapist
believed could be beneficial if it helped K.M.M. feel safer and prevent him from
re-offending by possessing a firearm. “But,” the therapist added, “if he has
anger issues . . . then that’s something that has to be addressed so he wouldn’t
feel the need to do such extreme things when upset.” Id. at 9.
[7] The court then sought input from K.M.M.’s parents. K.M.M.’s father believed
that “[i]f [K.M.M.] gets in a better area, it would all work out for the best.” Id.
K.M.M.’s father stated that he lived in a “better area” and that when K.M.M.
stayed with him he did not get in trouble. Id. K.M.M.’s mother requested that
K.M.M. be placed with her, but she also acknowledged that having K.M.M.
live with his cousin (her nephew) in Indianapolis was an option, although not
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the one she preferred. Later in the hearing, the court was informed that
K.M.M.’s cousin was on probation for an unspecified offense.
[8] The juvenile court then inquired as to whether there was a psychological
evaluation for K.M.M. The probation officer indicated that K.M.M. had
completed one in 2015. The court then addressed K.M.M.’s counsel:
THE COURT: Two years old. He was 14, 15 at the time?
Would you object to me having Doctor Ruff talk to him and try
to update the psychological? Maybe not do a full psychological,
Counsel?
[K.M.M.’s COUNSEL]: No, Your Honor.
THE COURT: All right, . . . I’ll talk to Doctor Ruff. I’ll order
an updated psychological. I don’t think we need to do a full one,
but maybe update and see if – where he was at – where he’s at
now from then to now and see if there’s any changes in regards
to that.
Id. at 12. The juvenile court then heard evidence from a police officer that
K.M.M. was a documented gang member in Hammond.
[9] The juvenile court concluded the disposition component of the hearing by
taking the matter under advisement. Later that day, the juvenile court entered
an order accepting K.M.M.’s admission and adjudicating K.M.M. a delinquent.
The court noted in this order that K.M.M. was “to have an updated
psychological evaluation by Dr. Ruff” and that the court was taking
“disposition under advisement.” Appellant’s Appendix Vol. 2 at 3.
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[10] On May 9, 2017, the juvenile court entered a disposition order in which it noted
the April 18 disposition hearing and that it had “read the updated Psychological
Evaluation.” Id. at 5. The court ordered K.M.M. committed to the DOC and
recommended that K.M.M. complete anger control classes and drug/alcohol
counseling. The court also recommended that the DOC determine whether
K.M.M. meets the criteria for parole supervision. K.M.M. now appeals.
Additional facts will be provided as necessary.
Discussion & Decision
Due Process
[11] K.M.M. argues that the juvenile court violated his right to due process when it
denied him the opportunity to be heard. Specifically, he claims that the court’s
act of taking the matter of disposition under advisement pending an updated
psychological evaluation implied that there would be further proceedings at
which he could be heard before a final decision was rendered. K.M.M.
maintains that he was not provided with the updated psychological evaluation
and was not given an opportunity to refute any findings therein prior to the
court entering the dispositional order. 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) (quoting S.L.B. v. State,
434 N.E.2d 155, 156 (Ind. Ct. App. 1982)).
[12] Ind. Code § 31-37-18-1.3 requires that the juvenile and his or her parents or
guardians have notice and an opportunity to be heard and make
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recommendations to the court regarding disposition. Here, the parties clearly
understood that disposition would follow immediately after K.M.M.’s
admission. Indeed, it was K.M.M.’s attorney who informed the court that the
parties would “argue disposition.” Transcript at 5.
[13] After K.M.M. admitted to the allegation and explained the circumstances of his
dangerous possession of a firearm, the court requested recommendations as to
disposition and the hearing thereafter focused on dispositional alternatives. The
court heard testimony from a probation officer1 and K.M.M.’s therapist. The
court also heard from both of K.M.M.’s parents and questioned them about
their recommendations for disposition. Upon inquiry, the court was informed
that K.M.M. had completed a psychological evaluation two years earlier.
K.M.M.’s counsel expressly indicated that there was no objection to the court’s
request for an updated psychological evaluation to see if there were any changes
over the interim period. The court then informed the parties that it was taking
the matter of disposition “under advisement. I’m going to get an updated psych
for him and make a determination with what, what we’ll do next.” Id. at 13.
1
The chronological case summary indicates that the probation officer’s report was filed with the court on or
about April 12, 2017. The probation officer was present at the disposition hearing and at no point did
K.M.M. object on grounds that he had not been provided with a copy of the probation officer’s report filed
six days earlier. K.M.M.’s conduct at the hearing also indicates that he was fully aware of the probation
department’s recommendation. He did not object for want of notice of the report’s contents or make a record
indicating that the juvenile court did not perform its statutory duty to make the dispositional report available
within a reasonable time before the hearing. See I.C. § 31-37-17-6(b).
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[14] A full dispositional hearing was held at which K.M.M., represented by counsel,
and his parents were present. K.M.M. did not request to cross-examine the
probation officer or his therapist concerning their recommendations. Rather,
his parents testified, providing the court with their recommendations for
disposition. Further, the court was informed that K.M.M. had previously
submitted to a psychological evaluation. K.M.M. lodged no objection to the
consideration of such and expressly stated that he did not object to the court’s
request for an updated evaluation to consider any changes that may have
occurred in the two years since the prior evaluation was completed. The State
and K.M.M. had nothing further to add with regard to disposition. Upon
receiving the updated psychological evaluation, the court issued its
dispositional order. The court followed the recommendations of probation and
the State and rejected the alternative dispositions desired by K.M.M.’s parents.
K.M.M. has not shown that the fact that the court did not hold another hearing
after receiving the updated psychological evaluation violated fundamental
fairness.
Disposition
[15] K.M.M. argues that the juvenile court abused its discretion in ordering that he
be committed to the DOC.
[T]he 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 only be reversed if there has been an abuse
of that discretion. The juvenile court’s discretion is subject to the
statutory considerations of the welfare of the child, the safety of
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the community, and the policy of favoring the least harsh
disposition. An abuse of discretion occurs when the juvenile
court’s action is clearly erroneous and against the logic and effect
of the facts and circumstances before the court or the reasonable,
probable, and actual inferences that can be drawn therefrom.
Hence, the juvenile court is accorded wide latitude and great
flexibility in its dealings with juveniles.
R.A. v. State, 936 N.E.2d 1289, 1291 (Ind. Ct. App. 2010) (citations and
quotations omitted).
[16] At the April 18 disposition hearing, the court was informed that this was
K.M.M.’s sixth referral and third for dangerous possession of a firearm.
K.M.M. had been afforded numerous services, including counseling, drug
testing, formal probation, and commitment to a juvenile center, and he had
failed intensive probation. He had been released from the DOC for a little over
a month when he was picked up on the instant allegation. The State agreed
with probation’s recommendation that K.M.M. be committed to the DOC.
The probation officer did not believe that “any time back in the community
would be a benefit to [K.M.M.]” Transcript at 7. K.M.M.’s therapist noted that
placement where K.M.M. felt safe (referring to possible placement in a different
area) could be a possibility, but noted that his anger issues would first have to
be addressed. Based on this record, we cannot say that the juvenile court
abused its discretion in ordering that K.M.M. be committed to the DOC with
recommendations that he complete anger control classes and complete
drug/alcohol counseling.
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[17] Judgment affirmed.
[18] May, J. and Vaidik, C.J., concur.
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