A.H. v. State of Indiana (mem. dec.)

MEMORANDUM DECISION FILED
Pursuant to Ind. Appellate Rule 65(D), Nov 28 2018, 8:10 am
this Memorandum Decision shall not be CLERK
Indiana Supreme Court
regarded as precedent or cited before any Court of Appeals
and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke Curtis T. Hill, Jr.
Wieneke Law Office, LLC Attorney General of Indiana
Brooklyn, Indiana
Caroline G. Templeton
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
A.H., November 28, 2018
Appellant-Defendant, Court of Appeals Case No.
70A01-1712-JV-2942
v.
Appeal from the Rush Circuit
Court
State of Indiana,
The Honorable David E. Northam,
Appellee-Plaintiff. Judge
Trial Court Cause No.
70C01-1508-JD-94
Pyle, Judge.
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Statement of the Case
[1] A.H. appeals his adjudication as a delinquent child for having committed
1
criminal mischief as a Class A misdemeanor if committed by an adult. A.H.
argues that the juvenile court erred when it modified his dispositional decree
and placed him in the Indiana Department of Correction (“DOC”).
Additionally, A.H. argues that his counsel was ineffective for allowing A.H. to
admit to probation violations. Lastly, A.H. argues that the juvenile court
abused its discretion by placing him in the DOC. We conclude that, because
the juvenile court retained jurisdiction of A.H., it did not err in modifying his
dispositional decree, and A.H.’s counsel was not ineffective for allowing A.H.
to admit to probation violations. Furthermore, it was within the juvenile
court’s discretion to commit A.H. to the DOC.
[2] We affirm.
Issues
1. Whether the juvenile court erred by modifying A.H.’s
dispositional decree and placing him in the DOC.
2. Whether A.H. received ineffective assistance of counsel.
3. Whether the juvenile court abused its discretion when it
ordered A.H. committed to the DOC.
1
IND. CODE § 35-43-1-2.
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Facts
[3] On July 27, 2015, eleven-year-old A.H. and another person traveled to the
Riverside Park Amphitheater in Rushville, Indiana. They damaged a garage
door, stole and damaged a golf cart, and disturbed or damaged other property
belonging to the City of Rushville. The next day, A.H. and the other person
returned to the park, kicked in the door to the concession stand, and stole soda
pop and potato chips. The two then pulled down a string of lights from a tent
and broke the light bulbs. The damages from the two incidents totaled
$1,413.92.
[4] Following an investigation by Rushville police officers, the State filed a petition
alleging that A.H. was a delinquent for criminal mischief, a Class A
misdemeanor if committed by an adult; auto theft, a Level 6 felony if
committed by an adult; and criminal trespass, a Class A misdemeanor if
committed by an adult. At his initial hearing, held on October 8, 2015, and
pursuant to a plea agreement, A.H. admitted to criminal mischief. The juvenile
court conducted a dispositional hearing and adjudicated A.H. a delinquent.
The court ordered A.H. to be placed on probation for one year, undergo a
mental health evaluation and follow all recommendations, complete ten hours
of community service through the Rushville Parks Department, and participate
in the Indiana Kids Tutoring Program at the Boys and Girls Club.
[5] On January 31, 2016, A.H. committed a new offense. He spray-painted vulgar
words and pictures on the dugout of the Rushville Parks Department baseball
field, causing approximately $1,000.00 worth of damage. The Rush County
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probation department filed a request to modify A.H.’s dispositional decree. A
hearing was held on April 19, 2016, during which A.H. admitted to violating
his probation. The juvenile court granted the probation department’s request,
modified the dispositional decree, and ordered that A.H. be placed on home
detention for thirty days and referred to a program to receive intensive home-
based services.
[6] On September 26, 2016, the probation department filed a second request to
modify A.H.’s dispositional decree, alleging that A.H. had fifteen school-related
disciplinary referrals between August 8, 2016, and September 19, 2016, was out
past curfew, and left his home without permission on two separate occasions.
A hearing was held on November 28, 2016, during which A.H. admitted to the
violations. The juvenile court granted the probation department’s request for
modification of the dispositional decree. The court ordered A.H.’s probation
extended for six months, to April 8, 2017, and ordered A.H. to complete a
psychological evaluation and follow all recommendations.
[7] Following the evaluation, A.H. was diagnosed with attention-deficit
hyperactivity disorder, unspecified depressive disorder, and conduct disorder.
It was recommended that A.H. be placed in a residential treatment facility.
Based on the recommendation, the trial court modified A.H.’s dispositional
decree and ordered him placed at a residential youth and family treatment
center.
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[8] At the treatment center, A.H. was provided with medication management,
individual therapy, family therapy, independent living training, and family
visits. He behaved well and was discharged in June 2017.
[9] However, on September 1, 2017, the probation department filed a report
indicating that, after A.H. was discharged from the treatment center, he
received eight school-related disciplinary referrals that resulted in suspensions.
The report stated that A.H. was “refusing to go to class, using inappropriate
language toward staff and other students[,] and refusing to get on the
appropriate bus to go home.” (App. Vol. 2 at 176). On September 12, 2017,
the probation department filed a third request for modification of A.H.’s
dispositional decree, citing the school-related disciplinary referrals, A.H.’s
refusal to attend school on four separate days, curfew violations, and his failure
to provide accurate information during a mental health assessment. The
probation department recommended that A.H. be committed to the DOC.
[10] At an initial hearing held on October 5, 2017, A.H. denied the allegations. A
factfinding hearing was held on November 27, 2017, during which A.H.
admitted to the allegations. The State and the probation department
recommended that A.H. be committed to the DOC. A.H. asked the juvenile
court to extend his probation and allow him to enroll in an alternative
education program. At the conclusion of the hearing, the juvenile court found
that the allegations were true, that the dispositional decree should be modified,
and that it was in A.H.’s best interests to be placed in the DOC. A.H. now
appeals.
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Decision
[11] On appeal, A.H. argues that (1) the juvenile court erred by modifying his
dispositional decree and placing him in the DOC; (2) he received ineffective
assistance of counsel; and (3) the juvenile court abused its discretion when it
ordered him committed to the DOC. We will address each of these arguments
in turn.
1. Modification of Dispositional Decree
[12] A.H. argues that the trial court erred when it granted the State’s third request to
modify his dispositional decree and ordered him committed to the DOC based
upon incidents that, according to A.H., occurred after his probationary period
had run. A.H. asserts that he was no longer on probation when the alleged
violations set forth in the third petition for modification of his dispositional
decree occurred. A.H. contends that “[d]espite the fact that [he] admitted to
committing the acts in the petition, the modification of his dispositional decree
should still be reversed because the State did not prove the conduct occurred
during the probationary period.” (A.H.’s Br. 17). The State maintains that
A.H. was still subject to the juvenile court’s jurisdiction at the time the
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violations occurred. We agree.
2
The State also argues that A.H. waived appellate review of this issue when he admitted to the allegations set
forth in the third petition for modification of his dispositional decree. However, we decline the State’s
invitation to resolve this matter on the basis of waiver. See Trammell v. State, 45 N.E.3d 1212, 1216-17 (Ind.
Ct. App. 2015) (finding that defendant was under no obligation to point out to the State that it failed to prove
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[13] INDIANA CODE § 31-30-2-1, provides, in pertinent part:
[T]he juvenile court’s jurisdiction over a delinquent child or a
child in need of services and over the child’s parent, guardian, or
custodian continues until:
(1) the child becomes twenty-one (21) years of age, unless
the court discharges the child and the child’s parent,
guardian, or custodian at an earlier time; or
(2) guardianship of the child is awarded to the department
of correction.
A juvenile court that retains jurisdiction over a juvenile may modify a
dispositional decree so long as it retains such jurisdiction. W.L. v. State, 707
N.E.2d 812, 814 (Ind. Ct. App. 1999); see also I.C. § 31-37-22-1. Here, it is clear
from the record that the juvenile court had not discharged then thirteen-year-old
A.H. and his parents. Nor had the juvenile court awarded guardianship of
A.H. to the DOC prior to the filing of the third request to modify the
disposition decree. Therefore, the court retained jurisdiction of A.H. and the
authority to modify A.H.’s dispositional decree and place him in the DOC. No
error occurred here.
2. Ineffective Assistance of Counsel
its case and that an admission to conduct was not admission that defendant violated probation by engaging in
the conduct).
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[14] A.H. also argues that he received ineffective assistance of counsel during his
November 27, 2017 factfinding hearing. According to A.H., his counsel’s
performance was deficient because counsel allowed A.H. to “admit to a
probation violation for acts that occurred several months after A.H. should
have been done with probation.” (A.H.’s Br. 19).
[15] A.H. maintains that he has a right to counsel as provided by the Sixth
Amendment of the United States Constitution. See Strickland v. Washington, 466
U.S. 668 (1984). The State argues that because A.H. is not a criminal
defendant, he is not entitled to the protections afforded by the Sixth
Amendment, and that, instead, his right to counsel is rooted in statute and the
right to due process.
[16] Without deciding that, in fact, juveniles in delinquency proceedings are entitled
to application of the same assistance of counsel standards as those applied in
adult criminal cases, we find that counsel’s representation was not deficient.
Under either standard set forth by the parties, A.H. was afforded effective
assistance of counsel. The juvenile court retained jurisdiction of A.H. and the
authority to modify A.H.’s dispositional decree. Thus, counsel did not render
ineffective assistance by allowing A.H. to admit to the violations of his
probation.
3. Commitment to DOC
[17] A.H. also contends that the juvenile court abused its discretion by committing
him to the DOC. A juvenile court is afforded wide latitude and great flexibility
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in its dealings with juveniles. J.S. v. State, 881 N.E.2d 26, 28 (Ind. Ct. App.
2008). The specific disposition of a delinquent child is within the sound
discretion of the juvenile court, and we will reverse only if the order is clearly
erroneous and against the logic and effect of the facts and circumstances before
the court. Id. The court’s discretion is subject to the statutory considerations of
the child, the safety of the community, and the policy of favoring the least harsh
disposition. Id.
[18] A.H. maintains that the juvenile court should not have ordered him committed
to the DOC,
[c]onsidering the amount of punitive-type rehabilitation that
A.H. had already received from his misdemeanor offense, and
considering the total lack of any attempt by the State to prove
that wardship to the D.O.C. was the least restrictive, most family
like setting available, or that it was the proper individualized
treatment for A.H.
(A.H.’s Br. 25). In support of his argument, A.H. refers to INDIANA CODE § 31-
37-18-6, which sets forth several factors a juvenile court must consider when
entering a dispositional decree. The section provides as follows:
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
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(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
(5) provides a reasonable opportunity for participation by
the child’s parent, guardian, or custodian.
I.C. § 31-37-18-6.
[19] Without question, INDIANA CODE § 31-37-18-6 requires the juvenile court to
select the least restrictive placement in most situations. However, the statute
contains language which reveals that, under certain circumstances, a more
restrictive placement might be appropriate. The statute requires placement in
the least restrictive setting only “[i]f consistent with the safety of the community
and the best interest of the child.” I.C. § 31-37-18-6. Thus, the statute
recognizes that, in certain situations, the best interest of the child is better
served by a more restrictive placement. See Madaras v. State, 425 N.E.2d 670,
672 (Ind. Ct. App. 1981) (“[W]hile the juvenile code creates a presumption in
favor of disposing of juvenile matters using the least severe disposition available
to the court which will serve the needs of the case, the code explicitly
recognizes that in some instances commitment may be in the best interests of
the child and society in general.”) (citation omitted); see also M.R. v. State, 605
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N.E.2d 204, 208 (Ind. Ct. App. 1992) (noting that while commitment to the
Indiana Boys School “should be resorted to only if less severe dispositions are
inadequate, there are times when such commitment is in the best interests of
the juvenile and society in general”).
[20] Here, the record reveals that A.H. was given several chances to reform his
behavior before the juvenile court committed him to the DOC. When A.H.
was initially adjudicated a delinquent, on October 8, 2015, he was placed on
probation for one year and was required to complete community service and
participate in a tutoring program. Following a violation of probation, that
occurred on January 31, 2016, and consisted of spray-painting vulgar words
and pictures on a parks department dugout, the court ordered A.H. on home
detention for thirty days and required him to participate in intensive home-
based services. Following a second violation of probation, which included
fifteen school-related discipline referrals, staying out past curfew, and leaving
home without permission, A.H.’s probation was extended for six months, to
April 8, 2017. Thereafter, on February 21, 2017, A.H.’s dispositional decree
was modified to allow for placement at a residential treatment facility, where
A.H. behaved well. However, shortly after being discharged from the facility in
June 2017, A.H., experienced behavioral issues at school. He had nine
discipline referrals; he refused to attend school on several occasions; he stayed
out past curfew; and he failed to provide accurate information during his
mental health assessment. At some point, A.H. was expelled from school.
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[21] At the factfinding hearing, held on November 27, 2017, A.H.’s probation
officer testified as follows:
Since [A.H. has] been on probation, he has basically received
every other service that we can provide for him, as far as
community based services, home detention for thirty days, he’s
been at residential treatment for four months, he’s- we’ve tried to
get people in the home to work with him, and tried to get him to
understand the importance of his education and so on, but he’s
not complying with any of those.
(Tr. Vol. 2 at 92). She further testified that there were no other options
available to A.H., short of placing him in the DOC, and that, due to his
expulsion, there were no education opportunities available to him at that time.
[22] The juvenile court determined that A.H. should be committed to the DOC.
Under these circumstances, we cannot say that the court’s decision was an
abuse of discretion or that it was not in A.H.’s best interests. See, e.g., J.J. v.
State, 925 N.E.2d 796, 802 (Ind. Ct. App. 2010) (affirming commitment
of juvenile to DOC where juvenile had been offered numerous means for
rehabilitation but “has continued to reoffend and disrespect the rule of law and
his fellow citizens”), trans. denied. The juvenile court did not abuse its
discretion by ordering A.H. committed to the DOC.
[23] Affirmed.
Vaidik, C.J., and Barnes, Sr.J., concur.
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