Kristen N. Collette v. State of Indiana (mem. dec.)

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Sep 02 2016, 8:51 am this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals court except for the purpose of establishing and Tax Court

the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Mark A. Thoma Gregory F. Zoeller Leonard, Hammond, Thoma & Terrill Attorney General of Indiana Fort Wayne, Indiana Ian McLean Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Kristen N. Collette, September 2, 2016 Appellant-Defendant, Court of Appeals Case No. 02A03-1512-CR-2124 v. Appeal from the Allen Superior Court State of Indiana, The Honorable Wendy W. Davis, Appellee-Plaintiff. Judge Trial Court Cause No. 02D04-1504-F6-295

Bailey, Judge. Court of Appeals of Indiana | Memorandum Decision 02A03-1512-CR-2124 | September 2, 2016 Page 1 of 10

Case Summary [1] Kristen N. Collette (“Collette”) pleaded guilty to Neglect of a Dependent, as a

Level 6 felony,1 following the death of her infant son. The trial court sentenced

Collette to two years and 183 days imprisonment, with 183 days executed and

the rest suspended to probation. On appeal, Collette presents the sole issue of

whether the court abused its discretion when it ordered as a special condition of

probation that Collette not care for children under the age of sixteen, but may

have supervised visitation with her three surviving minor children. We affirm.

Facts and Procedural History [2] On December 6, 2014, Collette left her youngest son, two-month-old A.C., at

home with a teenage friend. When Collette returned home around 10:30 p.m.,

she told the teenager to put A.C. to sleep on her bed, a mattress on the floor.

That night, Collette and several other adults were hanging out at the house and

drinking alcohol. At around 1:30 a.m., Collette moved A.C. from the mattress

to a pack-and-play crib. Between 2:30 and 3:30 a.m. he woke up crying, so

Collette brought him back to her bed and laid him face down on the mattress

between her body and the wall. When Collette woke up around 7:30 a.m. on

December 7, 2014, she found A.C. lifeless and cold.

1 Ind. Code § 35-46-1-4 (2014).

Court of Appeals of Indiana | Memorandum Decision 02A03-1512-CR-2124 | September 2, 2016 Page 2 of 10 [3] The police were called. Collette told the investigating detective that she had

about two beers the night before. Around noon, Collette submitted to an

alcohol and drug screen, which showed she had a 0.08 blood alcohol content

and tested positive for marijuana. Collette initially told the detective that she

found A.C. unresponsive in the pack-and-play where she had placed him after

feeding and changing him the night before. Collette later admitted that she

brought A.C. into her bed in the middle of the night and that she had learned in

a class at Parkview Hospital not to sleep with an infant. An autopsy revealed

that A.C. had a sunken soft spot, a sign of dehydration, and slight swelling of

the brain due to lack of oxygen. A.C.’s diaper was “absolutely engorged,”

indicating it had not been changed in the night as Collette claimed. (App. 10.) [4] In December 2014, the Department of Child Services (“DCS”) opened an

investigation into the family. Collette’s three older children, then seven, five,

and three years old (collectively, “Children”), were adjudicated Children in

Need of Services (“CHINS”) and placed in foster or relative care. Collette

began having supervised visitation with Children. DCS also provided her with

substance abuse, mental health, parenting, and home based services, with the

goal of reunifying the family. [5] On April 8, 2015, the State charged Collette with Neglect of a Dependent, as a

Level 6 felony, alleging that she knowingly or intentionally placed A.C. in a

situation endangering his life or health. On October 5, 2015, Collette pleaded

guilty as charged without the benefit of a plea agreement.

Court of Appeals of Indiana | Memorandum Decision 02A03-1512-CR-2124 | September 2, 2016 Page 3 of 10 [6] On November 2, 2015, the trial court entered judgment of conviction and held a

sentencing hearing. The State presented evidence that prior to A.C.’s death,

Collette and Children were living in squalor. All three Children had significant

developmental delays and behavioral problems, which Children’s foster parents

opined stemmed from neglect. Children had been exposed to illegal drug use.

During the CHINS case, Collette also continued to use drugs until July 2015.

At the conclusion of the hearing, the trial court sentenced Collette to two years

and 183 days imprisonment, with 183 days executed and two years suspended

to probation. As a special condition of probation, the court ordered that

Collette “cannot care for children under the age [of] sixteen. However, she can

have supervised visitations [with Children] through SCAN [Stop Child Abuse

and Neglect].” (Tr. 97.) [7] Collette now appeals the court’s special probation condition.

Discussion and Decision [8] Probation is a criminal sanction wherein a convicted person specifically agrees

to accept conditions upon his or her behavior in lieu of imprisonment. Bratcher

v. State, 999 N.E.2d 864, 873 (Ind. Ct. App. 2013), trans. denied. A trial court

has broad discretion in fashioning the conditions of a defendant’s probation. Id.

(citing Hevner v. State, 919 N.E.2d 109, 113 (Ind. 2010)). The court’s discretion

is limited only by the principle that the conditions imposed must be reasonably

related to treatment of the defendant and the protection of public safety. Id. See

also I.C. § 35-38-2-2.3(a)(15) (providing that the court may impose any term of

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probation “reasonably related to the person’s rehabilitation”). Our review is

limited to determining whether the conditions placed on the defendant are

reasonably related to attaining these goals. Bratcher, 999 N.E.2d at 873. We

will not set aside a trial court’s probation conditions unless the court has abused

its discretion. Id. [9] The trial court ordered that as a special condition of probation, Collette cannot

care for children under sixteen years old, but may have supervised visitation

with Children. Collette was convicted of neglect of a dependent after she

placed two-month-old A.C. in a situation endangering his life. An autopsy

revealed signs that A.C. had been deprived of basic needs before his death. At

the sentencing hearing, the State presented evidence that Collette and her

surviving children had been living in unsanitary conditions.2 Children also had

been exposed to illegal drug use and suffered from serious developmental delays

and behavior problems apparently stemming from neglect.3 Collette’s relative

testified that Collette had refused offers of help from family members concerned

about the “chaotic” home environment and Collette’s lack of parenting skills.

2 Prior to Children’s removal, Collette was evicted from a house that was covered in mice feces, the oldest child talked about a pet mouse in her bed, and the kids were covered in bedbug bites. 3 When placed in foster care, Collette’s three year old son’s only intelligible words were “liquor store,” two obscenities, “yep,” and “nope,” and he often “toked” on a sucker stick like a marijuana joint. (Exhibit 6.) At seven years old, Collette’s oldest child was unable to wipe herself after going to the bathroom or dress herself. She has since been receiving psychological, occupational, and speech therapy to address her behavior issues and developmental delays.

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(Tr. 55.) Collette also continued to abuse drugs until July 2015, seven months

after Children’s removal. [10] When a person is convicted of neglect of a dependent and there is evidence that

she engaged in a pattern of serious child neglect, a special probation term

restricting the offender from caring for young children is reasonably related to

advancing her rehabilitation and protecting children from future abuse and

neglect. See, e.g., Carswell v. State, 721 N.E.2d 1255, 1259 (Ind. Ct. App. 1999)

(holding that, where defendant was convicted of child molesting, “conditions of

probation that reduce the potential for access to children are reasonable”); Stott

v. State, 822 N.E.2d 176, 180 (Ind. Ct. App. 2005) (holding that probation

conditions barring a defendant convicted of child molesting from contacting

children under eighteen, including his twelve year old daughter, and being near

a school or daycare center were “protective measures for children” that “will

assist [him] in his rehabilitation”), trans. denied. In light of Collette’s conviction

and the other evidence of neglect, the trial court did not abuse its discretion by

imposing a probation condition temporarily restricting Collette from caring for

children under sixteen, but allowing her supervised visitation with Children. [11] Collette argues, however, that because she has three minor children, the

probation condition is “overbroad, tantamount to the termination of [her]

parental rights, and unconstitutional as applied to her.” (Appellant’s Br. 15.)4

4 The State argues that Collette’s constitutional argument is waived because it was not raised before the trial court. This Court has recently observed that “there appears to be a division of authority among the panels of

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Convicted individuals do not enjoy the same constitutional protections as law-

abiding citizens, and probation conditions that intrude upon constitutionally-

protected rights are not necessarily invalid. Taylor v. State, 820 N.E.2d 756, 761

(Ind. Ct. App. 2005), trans. denied. Where, as here, a defendant claims that a

probation condition is unduly intrusive upon a constitutional right, we evaluate

that claim by balancing the following factors: (1) the purpose sought to be

served by probation; (2) the extent to which constitutional rights enjoyed by

law-abiding citizens should be afforded to probationers; and (3) the legitimate

needs of law enforcement. Bratcher, 999 N.E.2d at 873. [12] Purpose Served by Probation – In this case, the probation condition helps protect

Children from future child abuse and neglect while Collette is on probation.

Collette agrees that a “fundamental purpose[]” of probation in this case should

be to protect Children, but disagrees that the court’s probation condition

achieves that purpose. (Appellant’s Br. 17.) She argues that where the CHINS

court has already intervened to protect Children and is exercising “tremendous

oversight,” the trial court’s probation condition inappropriately “trump[s] the

authority of the CHINS court.” (Appellant’s Br. 17)

this court regarding whether a defendant must object to his probation conditions in order to preserve the issue for appeal.” Meunier-Short v. State, 52 N.E.3d 927, 936 (Ind. Ct. App. 2016). In Piercefield v. State, 877 N.E.2d 1213, 1218 (Ind. Ct. App. 2007), trans. denied, a panel of this Court likened an appeal of a probation condition to an appeal of a sentence, which may be reviewed without first presenting the claim to the trial judge. Id. The Piercefield court held that a defendant who first challenged his probation conditions on appeal did not waive appellate review of the issue. Id. Recent decisions from this Court have approved of and adopted this reasoning. See Meunier-Short, 52 N.E.3d at 937; Bratcher, 999 N.E.2d at 873-74. We, too, find the reasoning persuasive and conclude that Collette has not waived appellate review of her probation condition.

Court of Appeals of Indiana | Memorandum Decision 02A03-1512-CR-2124 | September 2, 2016 Page 7 of 10 [13] As Collette observes, the purpose of a CHINS adjudication is to protect

children. See In re N.E., 919 N.E.2d 102, 106 (Ind. 2010). But this is not a

CHINS case. Here, the trial court’s duty was to fashion an appropriate

sentence for Collette’s neglect of a dependent conviction. Collette was

convicted of a Level 6 felony, which carries a fixed term of between six months

and two and one-half years, with the advisory sentence being one year. I.C. §

35-50-2-7. She received the maximum sentence (the appropriateness of which

she does not appeal), but the court exercised its discretion to suspend two years

to probation. Under the circumstances of this case, it also was appropriate for

the trial court to be concerned about protecting Children from abuse and

neglect during Collette’s probation term. That the CHINS court also took

substantial steps to protect Children does not render the trial court’s probation

condition inappropriate. [14] The Extent to which the Constitutional Right Should Be Afforded to Probationers –

Collette next argues that the probation condition restricting her to supervised

visitation with Children was “tantamount” to terminating her parental rights.

(Appellant’s Br. 17.) The Fourteenth Amendment to the U.S. Constitution

protects the traditional right of parents to establish a home and raise their

children. Bester v. Lake Cnty. Office of Family & Children, 839 N.E.2d 143, 147

(Ind. 2005). Although parental rights are of a constitutional dimension, they

are not absolute and may be terminated when the parents are unable or

unwilling to meet their parental responsibilities. Id.

Court of Appeals of Indiana | Memorandum Decision 02A03-1512-CR-2124 | September 2, 2016 Page 8 of 10 [15] At the time of sentencing, Children were removed from Collette’s care and

DCS was providing supervised visitation through the CHINS case with the goal

of reunifying the family. DCS Family Case Manager Tiffany King (“FCM

King”) opined at the hearing that, if the court were to order Collette to

participate in supervised visitation for two and a half years, DCS “would have

to consider possibly another plan for the children[,]” with potential alternative

plans including “terminating parental rights with adoption, possibly a change of

custody, or [Collette] voluntarily relinquishing her rights.” (Tr. 11.) Based on

this testimony, Collette argues that the court’s probation condition of two years

supervised visitation effectively terminated her rights to Children. [16] On this point, we agree with the State’s observation that “Collette makes too

much of [FCM] King’s generalized discussion about possible courses of action

DCS might contemplate . . . .” (Appellee’s Br. 18.) FCM King’s testimony did

not establish that the court’s probation term would compel DCS to petition for

termination of her parental rights, much less that the juvenile court would grant

termination on DCS’s petition. [17] Law Enforcement Needs – Turning to the final factor, Collette argues that the

probation condition does not serve the legitimate needs of law enforcement.

She contends that probation alone, without a special condition, would have

adequately deterred her from further criminal conduct, and, in any case, the

CHINS court was in a “far better position” than the trial court to adjudge her

ability to care for or visit with Children. (Appellant’s Br. 18.) Again, Collette

confuses the trial court’s role in criminal sentencing with the CHINS court’s

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efforts to reunify the family. Following a criminal conviction, law enforcement

has a legitimate need to protect potential victims from harm during the

offender’s probation. The probation condition in this case serves that need. [18] “Probation is a matter of grace left to trial court discretion, not a right to which

a criminal defendant is entitled.” Prewitt v. State, 878 N.E.2d 184, 188 (Ind.

2007). As such, the trial court could have ordered Collette to serve her two

years and 183 days sentence in prison, where she likely would have had limited

contact with Children. By placing Collette on probation and allowing her

supervised visitation with Children during that time, the trial court put Collette

in a better position to pursue reunification with Children than if the court had

ordered her entire sentence executed in prison. In sum, the court’s probation

condition strikes an appropriate balance between Collette’s fundamental liberty

interest in the parent-child relationship and the court’s legitimate need to

protect Children from future abuse and neglect during Collette’s probation

term. Under the circumstances of this case, the court’s probation condition was

not unduly intrusive upon Collette’s constitutional rights.

Conclusion [19] The trial court’s special probation condition was not an abuse of discretion.

[20] Affirmed.

Riley, J., and Barnes, J., concur.

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