Q H v. State of Indiana

FILED Aug 23 2023, 9:13 am

CLERK Indiana Supreme Court Court of Appeals and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Marielena Duerring Theodore E. Rokita South Bend, Indiana Attorney General of Indiana Robert M. Yoke Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA Q.H., August 23, 2023 Appellant-Respondent, Court of Appeals Case No. 23A-JV-326 v. Appeal from the St. Joseph Probate Court State of Indiana, The Honorable Graham C. Appellee-Petitioner Polando, Magistrate Trial Court Cause No. 71J01-2211-JD-381

Opinion by Judge Weissmann Judges Riley and Bradford concur.

Court of Appeals of Indiana | Opinion 23A-JV-326 | August 23, 2023 Page 1 of 16

Weissmann, Judge. [1] Thirteen-year-old Q.H. faced allegations that he was a juvenile delinquent for

threatening staff and indirectly touching a teacher during an extended outburst

at Q.H.’s alternative special education school. After being placed in a juvenile

detention facility because his parents were unavailable to take custody of him,

Q.H. admitted the delinquency allegations. [2] The juvenile court recognized that Q.H.’s misconduct was “relatively minor.”

Though this was Q.H.’s first contact with the juvenile justice system, the court

nevertheless imposed the severest sanction by committing Q.H. to the Indiana

Department of Correction (DOC). We reverse that judgment, finding that the

juvenile court’s judgment failed to adequately consider the special needs of this

13-year-old emotionally disabled, special education student new to the juvenile

justice system.

Facts [3] Q.H. was referred to an alternative special education school due to

misbehavior. On his first day, Q.H. violated the cell phone policy and was

removed from his classroom. Q.H. spent the next 90 minutes in the hallway

pacing, arguing, yelling, throwing chairs, and tearing posters from the wall. He

cursed at and threatened to kill a school staff member. Q.H. eventually picked

up a metal filing tray and swung it at other school staff, including a school

security officer. The officer eventually subdued Q.H. and transported him to St.

Joseph County’s juvenile detention center.

Court of Appeals of Indiana | Opinion 23A-JV-326 | August 23, 2023 Page 2 of 16 [4] At the time of the incident, Q.H.’s immediate family—consisting of his

unemployed mother and several brothers—was homeless. Due to winter

weather, a homeless shelter allowed the family to sleep at the facility at night,

but they had to stay elsewhere during the day. Q.H.’s mother could not be

located before the emergency detention hearing, which proceeded without

either her or Q.H.’s father, who never participated in these proceedings. [5] Although this was Q.H.’s first experience with the juvenile justice system,

Q.H.’s counsel conceded that continued detention of Q.H. was merited because

neither of Q.H.’s parents could take custody of him. The juvenile court, after

finding probable cause to believe Q.H. committed the acts alleged in

preliminary documents filed by the State, ordered Q.H. to remain at the

juvenile detention center “to protect him and this community.” Tr. Vol. II, p. 6. [6] The State then petitioned to adjudicate Q.H. a delinquent. The petition alleged

that Q.H. had engaged in misconduct which, if committed by an adult, would

constitute Level 6 felony intimidation and Class B misdemeanor disorderly

conduct, battery, and criminal recklessness. At Q.H.’s initial hearing on those

allegations a week later, Q.H. admitted to committing acts of intimidation and

battery. In exchange, the State agreed to dismiss the disorderly conduct and

criminal recklessness allegations. The juvenile court accepted Q.H.’s

admissions and scheduled a dispositional hearing. Q.H. remained in the

juvenile detention center through the date of the dispositional hearing.

Court of Appeals of Indiana | Opinion 23A-JV-326 | August 23, 2023 Page 3 of 16 [7] While detained at the juvenile detention center, Q.H. misbehaved repeatedly,

leading to 35 incident reports. These reports mostly revealed Q.H.’s threats to

hurt himself and others, disrespectful behavior toward detention center staff,

failure to follow directions, and clogging the toilet with his clothing. At times,

his failure to comply with detention center staff’s demands led to security

officers restraining him while he resisted. [8] At the dispositional hearing, the probation department recommended Q.H.’s

commitment to the DOC because he had behaved so poorly in secure

detention. The juvenile court agreed, entering these findings:

The Court has investigated or has made provisions for the delivery of the most appropriate services from those available to prevent the child’s placement out of the child’s home or to reunify the child and family.

Said child is in need of supervision, care, treatment and services which are NOT available in the local community.

The child is in need of services beyond those which can be provided through probation services.

There is no available person or facility in St. Joseph County Indiana which can provide the child with the necessary services.

Said child should be removed from the home because continuation in the home would not be in the best interest of the child.

The court finds reasonable efforts have been made to finalize a permanent plan for the child.

The St. Joseph County Probation Department has the responsibility for placement and care of the child.

Court of Appeals of Indiana | Opinion 23A-JV-326 | August 23, 2023 Page 4 of 16

This Dispositional Order is consistent with the safety and the best interest of the child and is the least restrictive and most appropriate setting available close to the parents’ home, least interferes with the family’s autonomy, is least disruptive of family life, imposes the least restraint on the freedom of the child and the child’s parent, guardian, or custodian; and provides a reasonable opportunity for participation by the child’s parent, guardian, or custodian.

App. Vol. III, p. 119.

Discussion and Decision [9] Q.H. argues that the juvenile court erred in committing him to the DOC. The

disposition of a juvenile adjudicated a delinquent is a matter committed to the

juvenile court’s discretion, subject to the statutory considerations of the child’s

welfare, community safety, and the policy favoring the least harsh disposition.

R.H. v. State, 937 N.E.2d 386, 388 (Ind. Ct. App. 2010). We review the juvenile

court’s disposition for an abuse of discretion, which occurs if its decision is

clearly against the logic and effect of the facts and circumstances before it or the

reasonable inferences that may be drawn from them. Id. “In determining

whether a juvenile court has abused its discretion, we neither reweigh evidence

nor judge witness credibility.” J.S. v. State, 110 N.E.3d 1173, 1175 (Ind. Ct.

App. 2018). [10] We start with the premise that “[t]he nature of the juvenile process is

rehabilitation and aid to the juvenile to direct his behavior so that he will not

later become a criminal.” A.C. v. State, 144 N.E.3d 810, 812 (Ind. Ct. App.

2020) (quoting Jordan v. State, 512 N.E.2d 407, 408 (Ind. 1987)). “For this

Court of Appeals of Indiana | Opinion 23A-JV-326 | August 23, 2023 Page 5 of 16

reason the statutory scheme of dealing with minors is vastly different than that

directed to an adult who commits a crime.” Id. Juvenile courts have a variety of

placement options for children with delinquency problems. Id. But Indiana

Code § 31-37-18-6 requires a court to consider these factors when entering a

dispositional decree:

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

(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. Q.H.’s Arguments [11] Q.H. argues that his commitment to the DOC was unduly harsh because this

was his first exposure to the juvenile justice system and his misconduct was

relatively minor. He also asserts that the dispositional order was improper

because the record reflects no investigation of less restrictive options, including

residential placement.

Court of Appeals of Indiana | Opinion 23A-JV-326 | August 23, 2023 Page 6 of 16 [12] We agree that the juvenile court’s consideration of sanctions was inadequate for

two reasons. First, the pre-dispositional report on which the juvenile court

relied did not meet statutory requirements. It failed to evaluate placement

options within the context of Q.H.’s needs, including his cognitive and

psychological challenges documented in his educational and detention center

records. Second, when considering the appropriate sanction, the juvenile court

adopted that defective pre-dispositional report and did not broaden its inquiry

to include consideration of Q.H.’s cognitive and psychological difficulties. As a

result, the trial court’s order committing Q.H. to the DOC did not incorporate

the analysis required by Indiana Code § 31-37-18-6.

A. Pre-dispositional Report Did Not Comply with Indiana Code § 31-37-17-6.1 [13] The pre-dispositional report prepared by a probation officer in a delinquency

proceeding must contain “[a] description of all dispositional options considered

in preparing the report.” Ind. Code § 31-37-17-6.1(a)(1) (2022). The pre-

dispositional report also must include “[a]n evaluation of each of the

[dispositional] options considered in relation to the [recommended] plan of

care, treatment, rehabilitation, or placement” for the child. Ind. Code § 31-37-

17-6.1(a)(2) (2022).1 The pre-dispositional report prepared in Q.H.’s case does

not meet this second statutory requirement.

1 Indiana Code § 31-37-17-6.1 was amended effective July 1, 2023, but continues to impose the same requirements found in subsections (a)(1) and (2) of the prior statute applicable here.

Court of Appeals of Indiana | Opinion 23A-JV-326 | August 23, 2023 Page 7 of 16 [14] The report failed to evaluate dispositional options within the context of Q.H.’s

needs, including his cognitive and psychological challenges. The report does

not mention Q.H.’s cognitive challenges other than occasional references to his

inability to understand the impact of his behavior. The only reference to Q.H.’s

mental health is the report’s statement that Q.H. has “[n]o mental health

diagnoses at this time.” App. Vol. III, p. 81. Yet, Q.H.’s cognitive difficulties

were documented in mental health and behavior incident reports prepared by

juvenile detention staff. Similarly, Q.H.’s school records reflected Q.H.’s

psychological challenges.2

i. Cognitive Difficulties [15] Q.H.’s cognitive difficulties were evident on his first day in the juvenile

detention facility. For instance, Q.H. “had difficulty with reading and

comprehending the screener” while completing a risk assessment when he first

entered the juvenile detention facility. App. Vol. II, p. 47. Therefore, “in

violation of standard administration procedures,” the paperwork had to be read

aloud to him by a detention officer. Id.

2 The school and juvenile detention center records are included in Q.H.’s appendix but are not file marked or reflected on the CCS. The State cites some of those documents in its brief and has not sought to strike those portions of Q.H.’s appendix. Appendices properly prepared under Indiana Appellate Rule 50 include only documents that are part of the Record on Appeal. App. R. 50(A)(2), (B)(1). The Record on Appeal consists of “the Clerk’s Record and all proceedings before the trial court ….” Ind. Appellate Rule 27. The Clerk’s Record includes the CCS and “all papers, pleadings, documents, orders, judgments, and other materials filed in the trial court . . . or listed in the CCS.” Ind. Appellate Rule 2(E). We therefore assume the school and juvenile center records were part of the trial court record and available to the probation department and juvenile court.

Court of Appeals of Indiana | Opinion 23A-JV-326 | August 23, 2023 Page 8 of 16 [16] The assessment identified Q.H. as having “coping problems.” Q.H. was “very

difficult to engage in conversation” and struggled with reading and writing,

particularly his spelling. Id. at 48. After being screened for learning disabilities,

he was referred for more testing. The record, however, contains no evidence of

any further testing. [17] Q.H. also scored in the “Caution” range for “Angry/Irritable.” Id. The forensic

clinician who evaluated him recommended a mental health assessment for

Q.H. The psychologist who supervised mental health services at the juvenile

detention facility recommended “no further follow-up” if Q.H. had been

enrolled in special education.3 The clinician later conducted a limited mental

health assessment, but no psychological examination was ever conducted.

ii. School Records [18] Q.H.’s school records also suggest Q.H. has significant cognitive and emotional

challenges. Before his detention, Q.H. was failing nearly all his special

education classes. Though Q.H. was 13 years old, he could not add or subtract

large numbers and lacked basic multiplication and division skills. One teacher

3 Although the record does not reveal the psychologist’s reasoning, he may have assumed that a psychological evaluation and learning disabilities testing were conducted as part of Q.H.’s special education enrollment. But even if that were the case, the record reflects no effort to gain access to or analyze any prior psychological evaluation or learning disabilities assessment in evaluating Q.H.’s needs and sanction.

Court of Appeals of Indiana | Opinion 23A-JV-326 | August 23, 2023 Page 9 of 16

questioned whether he lacked the cognitive ability to complete tasks even in

special education classrooms. [19] The school records also identify Q.H. as “a student with an emotional

disability” who will not succeed in a classroom environment without strong

support or with “too many supports.” Id. at 126. The record does not reveal

whether or how this “emotional disability” relates to the angry/irritable finding

in Q.H.’s mental health assessment conducted in the juvenile detention center.

Regardless, this “emotional disability” is not specifically identified in the

record, presumably due to the lack of psychological testing of Q.H.

iii. Q.H.’s Negative Behavior Related to his Cognitive and Emotional Struggles [20] The pre-dispositional report’s failure to evaluate dispositional options within

the context of Q.H.’s needs was particularly problematic because the record

repeatedly suggests a link between Q.H.’s negative behaviors and his apparent

cognitive and emotional difficulties. For instance, two of Q.H.’s “Behavior

Incident Reports” in detention arose from his failure to complete written essays.

App. Vol. III, pp. 24, 26. During the first of these incidents, Q.H. reported that

he could not complete the essay. During the second, he simply refused to write

the essay. Although the record suggests Q.H.’s cognitive limitations may have

left him unable to complete the essays, his refusal was treated as a willful

violation of detention center rules. [21] Moreover, Q.H.’s negative behaviors appeared to escalate when he was

emotional. When Q.H. returned from a court hearing upset over his continuing

Court of Appeals of Indiana | Opinion 23A-JV-326 | August 23, 2023 Page 10 of 16

detention, Q.H. was combative and threatened to hurt himself or others if he

were not released from detention. Refusing to lay down in his bed, Q.H.

ultimately was placed in “mechanical restraints”—presumably, handcuffs—

until he calmed down. Id. at 52. He was found crying in his room that day.

Q.H. repeatedly apologized and reported that he was “going through a lot,”

given that he expected to go home that day, he was homesick, and his brother

was ill. Id. at 57. [22] Q.H. also reported having memory difficulties. Id. at 85. The forensic clinician

concluded that Q.H.’s “behavioral difficulties [appear to] stem from poor

memory retention and lack of coping skills.” App. Vol. II, p. 91. She also

reported that the escalation in Q.H.’s threats to others and of self-harm

“appear[s] to be a result of frustration and poor coping skills, rather than

genuine risk of harm.” Id. at 85. She later reported that Q.H. struggled “to

identify and articulate thoughts/feelings/emotions.” Id. at 111. A juvenile

detention officer also recognized that Q.H. “doesn’t know why he gets angry.”

App. Vol. III, p. 31. [23] The forensic clinician concluded that “[d]ue to [Q.H.’s] limited introspective

skills, ongoing assessment and management will be heavily reliant on [his]

externalizing behavior and stability.” App. Vol. II, p. 111. In other words,

Q.H. was judged at the juvenile detention facility largely by his behavior alone,

although his behavior seemingly had been linked to his cognitive and emotional

difficulties. Consistent with that behavior-focused approach, the pre-

dispositional report recommended Q.H.’s commitment to DOC due to his poor

Court of Appeals of Indiana | Opinion 23A-JV-326 | August 23, 2023 Page 11 of 16

behavior without considering his need for treatment for cognitive or emotional

impairments. The pre-dispositional report therefore violated the applicable

version of Indiana Code § 31-37-17-6.1(a)(2).

B. Lack of Investigation into Q.H.’s Needs Tainted Findings [24] Adopting the findings in this defective pre-dispositional report, the juvenile

court similarly focused exclusively on Q.H.’s behavior and ignored Q.H.’s

cognitive and emotional needs. In its order committing Q.H. to the DOC, the

court stated:

[T]he Respondent is quite young, and . . . the offenses for which he has been adjudicated delinquent are relatively minor. However, his offenses are of a piece [sic] with the repeated, profoundly antisocial behavior he has displayed while detained, while at school, and while at home (the latter leading to his family's ejection from a housing facility). If even a secure environment has failed to protect the “community” within the detention facility, it stands to reason that a less secure environment, whether the home or a residential facility, would not provide further opportunity for disruptive and violent behavior. The Court therefore finds that any less restrictive placement is inconsistent with his safety and that of this community.

App. Vol. III, p. 98.4

4 The record does not reveal “profoundly antisocial behavior” by Q.H. at the family’s housing facility. The probation officer merely noted at the dispositional hearing that unspecified behavior by Q.H. at the homeless shelter led to their being “kicked out” before his detention. Tr. Vol. II, p. 28. Mother phrased their departure as being “timed out” without any mention of the cause. Id. at 20.

Court of Appeals of Indiana | Opinion 23A-JV-326 | August 23, 2023 Page 12 of 16 [25] The record does not support the juvenile court’s finding that reasonable efforts

have been made to finalize a permanency plan for Q.H. The record shows that

Q.H. had an emotional disability and intellectual challenges for which

therapeutic care and treatment needs were uninvestigated. Under these

circumstances, more was needed than a summary conclusion that a 13-year-old

special education student navigating the juvenile justice system for the first time

should be committed to the DOC. See C.H. v. State, 201 N.E.3d 202, 205 (Ind.

Ct. App. 2022) (commitment to DOC is the most restrictive sanction available

and therefore should be treated as a last resort). [26] We also find no evidence that the juvenile court considered how Q.H.’s

unstable home may have affected his behavior and mental status. Q.H.’s school

records showed that Q.H. was absent, late, or sick at his old school most of the

month before the incident at his new school. App. Vol. II, p. 116. During that

time, Q.H.’s family was homeless and spent their days with a relative and their

nights at a homeless shelter. [27] By the time of Q.H.’s dispositional hearing, Q.H.’s 16-year-old brother had

multiple contacts with the juvenile justice system including two that involved

alleged habitual disobedience of a parent. Q.H.’s brother was adjudicated a

delinquent for trespassing and resisting law enforcement and faced two more

pending delinquency petitions at the time of Q.H.’s dispositional hearing. The

Court of Appeals of Indiana | Opinion 23A-JV-326 | August 23, 2023 Page 13 of 16

pre-dispositional report in Q.H.’s case suggests that the permanency plan in his

brother’s delinquency proceeding a year earlier involved his brother’s placement

with a relative because of concerns over Q.H.’s mother’s “poor compliance and

unstable housing.” Id. at 79. Yet, in Q.H.’s case, neither the pre-dispositional

report nor the juvenile court’s judgment reflects any consideration of the impact

that Q.H.’s unstable home life had on his behavior or future rehabilitative

needs.5 The pre-dispositional report simply concludes that relative care is

inappropriate because he “needs a higher level of care.” App. Vol. III, p. 83. [28] The only apparent consideration of Q.H.’s home life was in the risk assessment

found in the pre-dispositional report and incorporated into the trial court’s

findings. The risk assessment showed Q.H.’s risk of violence was high due to

his lack of support combined with stress and poor coping skills. In other words,

Q.H.’s lack of family support, which seemingly was partly due to the family’s

homelessness, and Q.H.’s poor coping skills, which the forensic clinician linked

to Q.H.’s intellectual and emotional problems, were used to justify the harshest

sanction available. But those issues reasonably justified a less restrictive

sanction. Compare D.P. v. State, 783 N.E.2d 767, 770 (Ind. Ct. App. 2003)

(finding child’s cognitive difficulties and mental illness were “special

circumstances” justifying less restrictive sanction than DOC commitment).

5 The record suggests that the Indiana Department of Child Services, which had been involved with Mother and brothers more than a decade earlier, was not currently involved with Q.H.’s family. This is despite Q.H.’s deplorable school attendance, two children in the family facing multiple delinquency petitions, and the family’s homelessness.

Court of Appeals of Indiana | Opinion 23A-JV-326 | August 23, 2023 Page 14 of 16 [29] These omissions in the pre-dispositional report and juvenile court’s analysis

could have been corrected before the dispositional judgment, either through a

continuance or court-ordered testing. Earlier in the proceedings, the probation

department requested and obtained a continuance of the dispositional hearing

“to identify an appropriate placement for [Q.H.] given his recent behavior in

Detention.” Id. at 168. But the pre-dispositional report reflects that the

department ultimately did not investigate any possible placements outside the

DOC. Q.H. learned of that omission belatedly because he did not receive the

pre-dispositional report until the day of the rescheduled dispositional hearing.

During the dispositional hearing, however, Q.H. requested a continuance to

allow further investigation. The juvenile court implicitly denied the request,

given that the court proceeded with the hearing as scheduled. [30] The juvenile court also could have sua sponte ordered any necessary testing of

Q.H. before or during the dispositional hearing. A court that has authorized the

filing of a delinquency petition “may order examination of the child to provide

information for the dispositional hearing.” Ind. Code § 31-32-12-1(3). Such a

court “may also order medical examinations and treatment of the child under

any circumstances otherwise permitted by this section.” Id.

II. Conclusion [31] Given this record, the juvenile court could not reasonably determine under

Indiana Code § 31-37-18-6 that commitment to the DOC was the least

restrictive disposition consistent with Q.H.’s best interests and community

safety. We therefore conclude the court abused its discretion in committing Court of Appeals of Indiana | Opinion 23A-JV-326 | August 23, 2023 Page 15 of 16

Q.H. at the age of 13 to the DOC for his first and relatively minor juvenile offense. Accordingly, we reverse the juvenile court’s commitment of Q.H. to the DOC and remand for proceedings consistent with this opinion. Riley, J., and Bradford, J., concur. Court of Appeals of Indiana | Opinion 23A-JV-326 | August 23, 2023 Page 16 of 16