B.M. 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 Aug 31 2020, 9:00 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Mark K. Leeman Curtis T. Hill, Jr. Leeman Law Office and Attorney General of Indiana Cass County Public Defender Caroline G. Templeton Logansport, Indiana Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

B.M., August 31, 2020 Appellant-Defendant, Court of Appeals Case No. 20A-JV-335 v. Appeal from the Cass Circuit Court State of Indiana, The Honorable Stephen R. Kitts, Appellee-Plaintiff, II, Judge Trial Court Cause No. 09C01-1911-JD-85

Robb, Judge. Court of Appeals of Indiana | Memorandum Decision 20A-JV-335 | August 31, 2020 Page 1 of 9

Case Summary and Issue [1] The juvenile court adjudicated B.M. a delinquent child for acts that, if

committed by an adult, would constitute criminal mischief, a Class B

misdemeanor, and awarded wardship of him to the Indiana Department of

Correction (“DOC”). B.M. appeals, raising one issue for our review which we

revise and restate as whether the juvenile court erred by failing to find that B.M.

was a dual status child and refer him to a dual status assessment team to be

evaluated prior to disposition. Concluding the juvenile court did err, we reverse

and remand with instructions.

Facts and Procedural History [2] On November 13, 2019, the State filed a petition alleging B.M. was a

delinquent child for acts that, if committed by an adult, would constitute the

following offenses: Count 1, unlawful possession of a legend drug, a Level 6

felony; Count 2, possession of a controlled substance, a Class A misdemeanor;

Count 3, criminal mischief, a Class B misdemeanor; Count 4, unlawful use of a

police radio, a Class B misdemeanor; and Count 5, possession of marijuana, a

Class B misdemeanor. See Appellant’s Appendix, Volume II at 16-17. A fact-

finding hearing was held on December 12 during which B.M. admitted to the

allegations contained in Count 3 of the delinquency petition and the remaining

counts were dismissed. See id. at 28. The juvenile court adjudicated B.M. a

delinquent child for committing what would be criminal mischief if committed

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by an adult, ordered the probation department to prepare a predispositional

report, and scheduled a dispositional hearing. [3] Five days before the dispositional hearing, probation filed its predispositional

report detailing (among other things) B.M.’s extensive juvenile history,

including numerous adjudications as a juvenile delinquent for what would be

felony and misdemeanor offenses if committed by an adult. The report also

indicated that B.M. had been the focus of six Department of Child Services

(“DCS”) assessments between 2005 and 2017. His mother had been identified

as the main perpetrator in five of those assessments. Neglect or abuse

allegations against his mother were substantiated in 2005 and 2014. DCS also

substantiated allegations of abuse or neglect of B.M. by his father and step-

mother in 2014. Ultimately, B.M. was adjudicated a CHINS on June 18, 2014.

B.M.’s mother, father, and step-mother were ordered to participate in services

and wardship of B.M. was awarded to DCS. See id. at 82-90. The CHINS case

was closed on July 8, 2015. [4] The dispositional hearing in B.M.’s juvenile delinquency case was held on

January 15, 2020. At the conclusion thereof, the juvenile court awarded

wardship of B.M. to the DOC and subsequently entered a written dispositional

order that contained no findings about dual status. B.M. now appeals.

Discussion and Decision

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I. Standard of Review [5] The disposition of a juvenile adjudicated a delinquent is a matter committed to

the sound discretion of the juvenile court, subject to the statutory considerations

of the welfare of the child, the safety of the community, and the legislative

policy favoring the least harsh disposition. R.H. v. State, 937 N.E.2d 386, 388

(Ind. Ct. App. 2010). We will not reverse a juvenile disposition absent a

showing of an abuse of discretion, which occurs when the juvenile court’s

decision is clearly erroneous and against the logic and effect of the facts and

circumstances before it. D.S. v. State, 829 N.E.2d 1081, 1084 (Ind. Ct. App.

2005).

II. Dual Status Child [6] B.M. argues the juvenile court erred by “fail[ing] to identify [him] as a dual

status child and follow the legal procedures necessary to protect his best interest

[and] he may be in danger as a result.” Appellant’s Brief at 14. Specifically, he

contends “[h]ad the judge made such a finding, [he] would have been reviewed

by a dual status [assessment] team who would make recommendations based

upon [his] history of living in an abusive family. Because none of this occurred

here, [he] may be dumped right back into a situation of abuse and neglect when

he is released from the DOC.” Id. at 22. We agree.

Research has demonstrated that there is a greater likelihood of delinquency among children who have suffered abuse and neglect. Indiana Code Article 31-41 was enacted in 2015 to address the specific needs of these children by providing both the child welfare system and the juvenile justice system tools to Court of Appeals of Indiana | Memorandum Decision 20A-JV-335 | August 31, 2020 Page 4 of 9

identify, communicate and implement a coordinated plan that serves a child’s best interests and welfare. Therefore, when a child enters either the child welfare system or the juvenile justice system, the court and responding agencies must determine whether a child is a dual status child and proceed accordingly.

K.S. v. State, 114 N.E.3d 849, 852 (Ind. Ct. App. 2018) (quotations omitted),

trans. denied. [7] Indiana Code chapter 31-37-13 describes the procedures for a factfinding

hearing in a juvenile delinquency adjudication. Indiana Code section 31-37-13-

2(a) requires the juvenile court, upon making a delinquency determination, to

order a predispositional report, schedule a dispositional hearing, and complete a

dual status screening tool on the child and determine whether the child is a

“dual status child.” The “dual status screening tool” is a “factual review of a

child’s status and history conducted by the case manager [in a CHINS

proceeding] or the probation officer [in a delinquency proceeding]” used to

determine whether a child meets the criteria for being a dual status child. Ind.

Code § 31-41-1-3. As relevant here, a “dual status child” is a child who “has

been previously adjudicated to be a [CHINS] . . . and who was under a

wardship that had been terminated or was in a program of informal adjustment

that had concluded before the current delinquency petition[.]” Ind. Code § 31-

41-1-2(4). A dual status assessment team1 is responsible for evaluating a dual

1 “Dual status assessment team” is “a committee assembled and convened by a juvenile court to recommend the proper legal course for a dual status child.” Ind. Code § 31-41-1-5.

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status child’s status, best interests, need for services, and level of needs,

strengths, and risks. Ind. Code § 31-41-1-4. The dual status assessment team

must meet, assess the child’s best interests and well-being, and provide written

recommendations to the trial court about how to proceed. Ind. Code §§ 31-41-

2-3, -5, -6. And when the juvenile court issues its dispositional decree, it must

be accompanied by written findings and conclusions, including a specific

finding as to whether the child is a dual status child. Ind. Code § 31-37-18-9(a). [8] Section 2(a) of the chapter concerning delinquency factfinding hearings requires

the juvenile court to determine whether the child is a dual status child and

section 2(b) provides that “[i]f a child is determined to be a dual status child, the

court may refer the child for an assessment by a dual status assessment team[.]”

Ind. Code § 31-37-13-2 (emphasis added). However, once the juvenile court

determines that a child is a dual status child, Indiana Code Title 31-41 explicitly

requires that the juvenile court refer the child to be assessed by a dual status

assessment team. Ind. Code § 31-41-2-1 (stating that the juvenile court “shall

refer the child to be assessed by a dual status assessment team” (emphasis

added)). Therefore, the two statutes disagree as to whether a dual status referral

is mandatory. We reiterate that the purpose of our dual status legislation is to

address the specific needs of dual status children – those in both the child

welfare system and juvenile system – by implementing a plan to serve their best

interests and welfare. K.S., 114 N.E.3d at 852. Although the delinquency

statute says the juvenile court “may” refer the child, once a juvenile court finds

a child to be a dual status child, we believe that the dual status assessment is

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required. Interpreting the assessment as discretionary following a

determination that a child is a dual status child, would be inconsistent with the

purpose of the legislation.2 [9] Here, there is no evidence in the record that the juvenile court completed the

dual status screening tool, found B.M. to be a dual status child, referred him to

be assessed by a dual status assessment team, or that B.M. was evaluated by

such team. B.M. contends he is a dual status child and the State does not

challenge this assertion. Instead, the State argues that “B.M. is unable to

establish that even if a dual status assessment team had been convened that the

juvenile court’s dispositional decree would have been altered. It was the

juvenile court, not the dual status assessment team, who had the final decision

in the manner in which the case proceeded.” Brief of Appellee at 12 (citing Ind.

Code § 31-41-3-1). Indeed, it is possible that a dual status assessment team’s

recommendation would not have affected the juvenile court’s disposition in this

case. However, we cannot definitively conclude so. [10] “[T]he inability of [the juvenile justice and child welfare] systems to coordinate

services for a blended approach often places a child on a trajectory that does not

meet the child’s needs and best interests.” Dual Status Resource Notebook,

Tab 3: Why Do We Need Dual Status Processes?,

2 Remedying the inconsistencies between our juvenile delinquency and dual status statutes regarding whether the dual status assessment referral is mandatory is a task for our legislature. See 15A Ind. Prac., Family Law – Children In Need Of Services § 19:19 (pointing out “internal contradictions[,]” including whether the dual status referral is required, contained in various provisions of our CHINS and dual status statutes).

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http://www.state.in.us/judiciary/probation/files/Dual%20Status%20Resourc

e%20Notebook.pdf [https://perma.cc/WEM8-5WD9]. Therefore, given the

important objective of our dual status legislation, we cannot conclude that the

failure to refer B.M. to the dual status assessment team for evaluation was

essentially harmless as the State contends. [11] We conclude there is sufficient evidence in the record to support a finding that

B.M. is a dual status child pursuant to Indiana Code section 31-41-1-2(4). B.M.

was previously adjudicated a CHINS in June 2014 and was under DCS’

wardship until the CHINS case was closed in July 2015, all of which occurred

before this delinquency petition was filed. See Appellant’s App., Vol. II at 32,

39, 82-90. Because the juvenile court failed to find that B.M. is a dual status

child and refer him to the dual status assessment team in violation of Indiana

law, we reverse the juvenile court’s dispositional order and remand with

instructions for the juvenile court to enter an order finding B.M. to be a dual

status child and referring him to be evaluated by the dual status assessment

team and to then conduct further proceedings consistent with this opinion.

Conclusion [12] We conclude the juvenile court abused its discretion when it failed to determine

that B.M. is a dual status child and order that he be assessed by a dual status

assessment team as required by Indiana Code section 31-41-2-1 before entering

a dispositional order. Therefore, we reverse the juvenile court’s dispositional

order and remand with instructions for the juvenile court to enter an order

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finding that B.M. is a dual status child and referring him to be assessed by a

dual status assessment team. [13] Reversed and remanded.

May, J., and Vaidik, J., concur.

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