B.D. v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Dec 09 2019, 10:32 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 Mark K Leeman Curtis T. Hill, Jr. Leeman Law Office and Cass County Attorney General Public Defender Logansport, Indiana Samantha M. Sumcad Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

B.D., December 9, 2019 Appellant-Respondent, Court of Appeals Case No. 19A-JV-1719 v. Appeal from the Cass Circuit Court The Honorable Stephen R. Kitts, II, State of Indiana, Judge Appellee-Petitioner Trial Court Cause No. 09C01-1901-JD-12

Crone, Judge. Court of Appeals of Indiana | Memorandum Decision 19A-JV-1719 | December 9, 2019 Page 1 of 8

Case Summary [1] B.D., a delinquent child, appeals the modification of his placement to the

Indiana Department of Correction (“IDOC”). He contends that the trial court

erred in entering an order modifying his placement and committing him to the

IDOC without including specific written findings and conclusions as required

by Indiana Code Section 31-37-18-9. Concluding that any error regarding the

findings in support of modification of the disposition does not amount to

reversible error, we affirm.

Facts and Procedural History [2] In February 2019, seventeen-year-old B.D. was adjudicated a delinquent child

for committing theft, a class A misdemeanor if committed by an adult, resisting

law enforcement, a class A misdemeanor if committed by an adult, and two

counts of unauthorized entry of a motor vehicle, a class B misdemeanor if

committed by an adult. During the dispositional hearing, the State asked the

trial court to take judicial notice of B.D.’s lengthy delinquency history as well as

his numerous probation violations and failed dispositions in other cases. B.D.’s

prior placements “included his placement on intensive supervision with GPS

monitoring multiple times and residential placement in two different facilities.”

Appellant’s App. Vol. 2 at 47. He previously absconded from GPS monitoring

in one case and had twice been released from probation on “unsuccessful”

status. Id. Accordingly, the State recommended B.D.’s placement in the

IDOC. However, the trial court rejected that recommendation and instead

imposed probation and placed B.D. on “intensive supervision with GPS

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monitoring” for ninety days. Id. at 58. The trial court warned B.D. that, based

upon his current offenses and his history, commitment to the IDOC would be

the only remaining placement alternative if B.D. did not change his behavior. [3] On May 13, 2019, the probation department filed a petition to modify

dispositional decree, alleging that B.D. violated the terms of his probation by

testing positive for THC. The probation department filed a second petition to

modify dispositional decree on May 15, 2019, alleging that B.D. violated the

terms of his probation by again testing positive for THC. Then, on June 5,

2019, the probation department filed a third petition to modify dispositional

decree, alleging that B.D. violated the terms of his probation by: (1) cavorting

with another juvenile on probation; (2) failing to attend probation

appointments; and (3) failing to conform with curfew. [4] At the modification hearing on June 26, 2019, B.D. admitted to each probation

violation. The trial court then heard argument from both parties regarding the

appropriate disposition and also heard testimony from B.D.’s probation officer.

Based upon the evidence, both the prosecutor and the probation officer

recommended B.D.’s placement with the IDOC. At the conclusion of the

hearing, the trial court orally entered its order modifying B.D.’s placement to

the IDOC. In doing so, the court gave a thorough explanation of its decision

on the record. However, the written modification order subsequently issued by

the trial court did not provide any specific findings or conclusions as to the

court’s reasoning for its disposition. This appeal ensued.

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Discussion and Decision [5] B.D. appeals the trial court’s order modifying his placement. “A juvenile court

is accorded ‘wide latitude’ and ‘great flexibility’ in its dealings with juveniles.”

J.T. v. State, 111 N.E.3d 1019, 1026 (Ind. Ct. App. 2018) (citation omitted),

trans. denied (2019). 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. J.S. v. State, 110 N.E.3d 1173, 1175 (Ind. Ct. App.

2018), trans. denied (2019). We review a trial court’s disposition and

modification thereof for an abuse of discretion, which occurs if the 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 IDOC

following her violation of terms of suspended commitment), trans. denied. In

determining whether a trial court has abused its discretion, we neither reweigh

evidence nor judge witness credibility. J.S., 110 N.E.3d at 1175. [6] When issuing an order modifying a juvenile disposition, the court must comply

with the requirements governing dispositional orders. See Ind. Code § 31-37-22-

3(c). 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; the court’s reasons for its disposition; and

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whether the child is a dual status child under Indiana Code Article 31-41. Ind.

Code § 31-37-18-9(a)(1)-(6). [7] B.D.’s sole challenge to the trial court’s modification order is that the court did

not make the statutorily required written findings and conclusions regarding the

enumerated factors. B.D. asserts that this failure constitutes reversible error

because it has made “meaningful [appellate] review impossible” and prevents

this Court from saying “with confidence that the judge would have reached the

same decision had he … issued an order with specific findings of fact and

conclusions.” Appellant’s Br. at 12, 18. While we agree with B.D. that the trial

court did not comply with the statute, we do not agree that this noncompliance

constitutes reversible error. [8] We acknowledge that the written modification order here contained only a bare

recitation of the proceedings and a brief boilerplate reference to the court having

reviewed “reports filed” and considered “the statements and evidence

presented.” Appellant’s App. Vol. 2 at 103. This failure on the part of the trial

court to comply with the statutory mandate for written specific findings on the

enumerated issues constitutes clear error. Thankfully, the oral record provides

us the additional information we need to conduct a meaningful appellate

review. During the original February 2019 disposition hearing following B.D.’s

delinquency adjudication in this case, the State recommended B.D.’s

commitment to the IDOC based upon his current delinquent behavior as well

as his extensive prior delinquency history. The prosecutor asked the court to

take judicial notice of B.D.’s prior history, including that he had absconded

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from GPS monitoring in another delinquency case. The trial court noted that

commitment to the IDOC was probably warranted but nevertheless rejected the

State’s recommendation for commitment to the IDOC, instead choosing to

place B.D. on “intensive supervision with GPS monitoring.” Id. at 58.

However, the trial court explicitly warned B.D. that commitment to the IDOC

was imminent if he did not change his behavior. See Tr. Vol. 2 at 10 (“This is

your last shot[,] beyond the last shot …”). [9] Thereafter, the record indicates that B.D. left home, his mother had no idea

where he was, and he refused to go to school or find a job. He proceeded to

rack up at least five probation violations, which prompted the State to file three

separate petitions for modification of disposition. During the current

modification hearing, B.D.’s probation officer went over B.D.’s lengthy

delinquency history and explained that B.D. had “participated in about every

service that juvenile probation has to offer [through] his four or five cases” with

no success. Id. at 29. The officer stated that she believed that commitment to

the IDOC was a necessary next step so that B.D. would be forced to cease his

delinquent behavior and complete his education. In issuing its modification

decision, the trial court explained on the record its reasons for accepting the

recommendation of the probation department and modifying B.D.’s disposition

to the IDOC. The trial court specifically referenced the probation reports as

well as the court’s familiarity with B.D., his family, and his delinquency

history. The court explained that less restrictive placements had “been

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exhausted previously” and that these other environments clearly could not give

B.D. the supervision and structure he needed. Id. at 30. [10] Again, acknowledging that the written order here is essentially unreviewable,

we believe that this is not a case of reversible error. That is to say, the

combined oral and written record provides sufficient information relevant to

B.D.’s needs for care, treatment, rehabilitation, or placement, the services that

were offered, and the court’s reasons for its disposition, as to facilitate

meaningful appellate review. 1 Significantly, B.D. does not assert that the trial

court’s actual decision to place him in the custody of the IDOC constituted an

abuse of discretion. He simply argues that, in the absence of written findings, it

is “unclear why a less restrictive alternative like shelter care was an inadequate

disposition.” Appellant’s Br. at 18. As stated above, we think that the trial

court made it patently clear why a less restrictive alternative was inadequate.

Moreover, this Court has concluded that a juvenile court’s failure to enter the

required statutory findings in support of its dispositional order does not

necessarily constitute reversible error. See Madaras v. State, 425 N.E.2d 670, 672

(Ind. Ct. App. 1981) (concluding that while “the court’s failure to make findings

was clearly error,” reversal and remand to require court to detail its reasons for

disposition would “serve no purpose” in light of conclusion that trial court’s

1 Although the trial court’s written modification order vaguely references its consideration of “reports,” it is clear from the oral record that the trial court incorporated and relied on reports from the probation department in making its decision. We note that the court was unable to incorporate by reference information from a predispositional report because B.D. waived the preparation of a report during the initial disposition hearing. Tr. Vol. 2 at 8; Appellant’s App. Vol. 2 at 58.

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disposition was indeed proper). Because B.D. does not even attempt to argue

that his placement with the IDOC was an abuse of discretion, we cannot

conclude that B.D. was prejudiced by the trial court’s failure to enter adequate

written findings. [11] In reaching this conclusion, we do not intend to minimize the trial court’s

failures or the important role that written findings and conclusions regarding

the enumerated statutory considerations serves for the parties and for appellate

review. 2 We simply conclude that, given the record before us, as well as B.D.’s

lack of argument that the evidence supports a less restrictive disposition, the

court’s failure to enter adequate written findings does not constitute reversible

error. The trial court’s modification order is affirmed. [12] Affirmed.

May, J., and Pyle, J., concur.

2 Having determined that the written modification form utilized by the trial court was inadequate, we trust that the trial court will alter its procedures and enter the required statutory findings and conclusions in juvenile cases moving forward.

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