The opinion
MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
FILED
this Memorandum Decision shall not be Nov 16 2018, 9:10 am
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Kimberly A. Jackson Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Angela N. Sanchez
Lee M. Stoy, Jr.
Deputy Attorneys General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
A.C., November 16, 2018
Appellant-Respondent, Court of Appeals Case No.
18A-JV-738
v. Appeal from the Noble Superior
Court
State of Indiana, The Honorable Robert E. Kirsch,
Appellee-Petitioner. Judge
Trial Court Cause No.
57D01-1711-JD-67
Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-JV-738 | November 16, 2018 Page 1 of 11
Case Summary and Issues
[1] A.C. was adjudicated a delinquent child and the juvenile court awarded
wardship of him to the Indiana Department of Correction (“DOC”). A.C.
appeals, raising two issues for our review: 1) whether the juvenile court
committed fundamental error in proceeding to disposition without a
predispositional report; and 2) whether the juvenile court abused its discretion
in committing A.C. to the DOC. Concluding no fundamental error occurred
and that the disposition was not an abuse of discretion, we affirm.
Facts and Procedural History
[2] On September 24, 2016, A.C., who was then sixteen years old, was left in
charge of his seven-year-old niece, C.A., while her parents went to the store.
While they were gone, A.C. came into C.A.’s room and began moving his hips
in front of her face. He then pushed her down on the bed, and while both were
fully clothed, rubbed his penis on her vagina, attempted to kiss her, and rubbed
her “bottom” with his hand. Transcript, Volume 2 at 37. C.A. told her mother
what had happened when she returned, and the family reported the incident to
police. A.C. is originally from Honduras. He came to the United States in
August 2016 to live with his mother in Noble County. Neither speaks English.
A.C. admitted he had been in C.A.’s room to help her find her bookbag and
that they had fallen onto her bed when they hugged but stated that he got up
Court of Appeals of Indiana | Memorandum Decision 18A-JV-738 | November 16, 2018 Page 2 of 11
immediately and denied that he rubbed against her. These events occurred in
Allen County.1
[3] At the conclusion of the fact-finding hearing, the Allen Superior Court found
the State proved beyond a reasonable doubt that A.C. had committed the
equivalent of child molesting, a Level 4 felony if committed by an adult. The
Allen Superior Court released A.C. to his mother and by agreement of the
parties, referred the matter to Noble County for disposition. The fact-finding
order does not direct preparation of a predispositional report. The Noble
Superior Court ordered a psychological examination, which showed A.C.
suffered from Major Depressive Disorder and Schizophrenia with a history of
auditory and visual hallucinations. The psychologist recommended A.C. be
placed in a residential treatment program.
[4] No predispositional report was filed. At the dispositional hearing, the State and
the juvenile probation officer recommended A.C. be committed to the DOC.
The Noble Superior Court found that A.C. is at a higher risk of re-offending
due to the seriousness of the crime and A.C.’s denial of any wrongdoing. The
court therefore awarded wardship of A.C. to the DOC. A.C. now appeals.
Discussion and Decision
1
The delinquency petition was filed in Noble County, which then transferred the case to Allen County
because the events occurred there. Allen County completed the preliminary inquiry report and conducted the
initial and fact-finding hearings and then transferred the case back to Noble County for disposition.
Court of Appeals of Indiana | Memorandum Decision 18A-JV-738 | November 16, 2018 Page 3 of 11
I. Predispositional Report
[5] A.C. first contends his disposition should be vacated because no
predispositional report was prepared. A.C. acknowledges he did not object to
the lack of a predispositional report but alleges the juvenile court committed
fundamental error in proceeding to disposition without the report.
[6] In the chapter concerning delinquency factfinding hearings, Indiana Code
section 31-37-13-2 provides that if a court finds that a child is delinquent, the
court shall: enter judgment accordingly, order a predispositional report,
schedule a dispositional hearing, and complete a dual status screening tool. See
also Ind. Code § 31-37-17-1 (in the chapter concerning predispositional reports,
stating that upon finding that a child is delinquent, the court shall order a
probation officer to complete a predispositional report that contains certain
information).
[7] There is no question that Allen County, as the factfinding court, did not order a
predispositional report before it transferred the case to Noble County for
disposition. And there is no question that Noble County, as the dispositional
court, also did not order a predispositional report before holding a dispositional
hearing. See Brief of Appellee at 12 (State conceding that a predispositional
report was not prepared in this case). A.C. is therefore correct that the
mandates of the juvenile delinquency statutes were not followed to the letter.
However, Indiana Code section 31-37-17-6 obligates the court to provide a copy
of the report to each attorney before the dispositional hearing. Therefore, A.C.
Court of Appeals of Indiana | Memorandum Decision 18A-JV-738 | November 16, 2018 Page 4 of 11
had notice that such report was not prepared, but failed to object to proceeding
with the hearing. Generally, issues raised for the first time on appeal are
waived for our review. In re K.S., 750 N.E.2d 832, 834 n.1 (Ind. Ct. App. 2001)
(holding that an allegation of a due process violation raised for the first time on
appeal was waived). Acknowledging this, A.C. urges us to review this issue for
fundamental error. “The fundamental error exception is extremely narrow, and
applies only when the error constitutes a blatant violation of basic principles,
the harm or potential for harm is substantial, and the resulting error denies the
defendant fundamental due process.” R.W. v. State, 975 N.E.2d 407, 411 (Ind.
Ct. App. 2012) (internal quotation marks omitted), trans. denied. Fundamental
error is defined as an error so prejudicial to the rights of a juvenile that a fair
hearing is impossible. Id.
[8] In arguing he was not afforded a fair dispositional hearing, A.C. primarily relies
on the fact that the Noble County court already had limited information about
him and his case because it did not conduct the factfinding hearing. The
juvenile court acknowledged as much when announcing its disposition by
stating,
This is a very very difficult case as far as I am concerned. First of
all is the fact that this Court was not the Court that heard the
evidence at the fact finding hearing and therefore the Court does
not have any great knowledge of the offense itself or the act itself
other than what I can see in the Court file.
Tr., Vol. 2 at 78.
Court of Appeals of Indiana | Memorandum Decision 18A-JV-738 | November 16, 2018 Page 5 of 11
[9] “The standard for determining what due process requires in a particular juvenile
proceeding is fundamental fairness.” D.A. v. State, 967 N.E.2d 59, 64 (Ind. Ct.
App. 2012) (internal quotation marks omitted). A juvenile charged with
delinquency is entitled to the “common law jurisprudential principles which
experience and reason have shown are necessary to give the accused the essence
of a fair trial.” K.A. v. State, 938 N.E.2d 1272, 1274 (Ind. Ct. App. 2010), trans.
denied. This includes the right to have a competency determination, the right to
notice of the charges, the right to counsel, the privilege against self-
incrimination, and the right to confront witnesses. Id. A.C. was given notice of
the allegation against him, had counsel and an interpreter, and was afforded an
evidentiary hearing at which his counsel cross-examined the State’s witnesses
and he testified on his own behalf. Prior to the dispositional hearing, the Noble
County court ordered a psychological assessment and A.C.’s counsel provided
to the court a Case Conference Committee Report from the West Noble School
Corporation regarding A.C.’s academic performance and educational needs.
The juvenile probation officer was present at the dispositional hearing and
testified to the recommendations of the probation department. A.C.’s mother
also testified.
[10] Notably, in the adult criminal context, our supreme court has stated that having
a presentence investigation report considered prior to sentencing “is a privilege
granted by the legislature, not a fundamental right.” Smith v. State, 432 N.E.2d
1363, 1373 (Ind. 1982). The purpose of a predispositional report is to provide
the court the information it needs to fashion an appropriate disposition. Cf.
Court of Appeals of Indiana | Memorandum Decision 18A-JV-738 | November 16, 2018 Page 6 of 11
Dillard v. State, 827 N.E.2d 570, 576 (Ind. Ct. App. 2005) (discussing
presentence investigation reports), trans. denied. Therefore, a predispositional
report is to include, among other things, a statement of the child’s needs for
care, treatment, rehabilitation, or placement; and a recommendation for the
child’s care, treatment, rehabilitation, or placement. Ind. Code § 31-37-17-
1(a)(1), (2).2 The psychological evaluation addressed A.C.’s needs, and the
probation officer testified at the dispositional hearing regarding the probation
department’s recommendation. It is unclear what additional information the
predispositional report would have been able to provide that would have
assisted the juvenile court. Although we certainly do not excuse the failure of
the juvenile court, the State, the probation department, and even A.C.’s counsel
to assure that a predispositional report was prepared, especially where, as here,
A.C. and his mother are unable to speak English and advocate for A.C.
themselves,3 we cannot say the failure to observe the procedure required by
2
Subsections (3) and (4) of Indiana Code section 31-37-17-1 are not applicable here because the
recommendation was for A.C. to be placed in a secure detention facility. Subsection (5) requires a statement
of whether the child receives Medicaid. A.C.’s immigration status is unclear, but given his recent
immigration to the United States, it is unlikely that he would be eligible for Medicaid. See 8 U.S.C. § 1613(a)
(stating qualified aliens who enter the United States on or after August 22, 1996 are not eligible for federal
public benefits for a period of five years after entry).
3
We acknowledge that in Mejia v. State, 702 N.E.2d 794, 798 (Ind. Ct. App. 1998), a panel of this court
determined that because the trial court’s sentencing of an adult defendant did not comply with statutory
requirements to have a written presentence report prepared by a probation officer and provided to the
defendant prior to sentencing, the case must be remanded for a new sentencing hearing to be conducted in
compliance with the statutes. One of the statutes in question provides that “a defendant convicted of a felony
may not be sentenced before a written presentence report is prepared by a probation officer and considered by
the sentencing court.” Ind. Code § 35-38-1-8(a) (emphasis added). Similar language used to exist regarding
juvenile cases but no longer does. See Howard v. State, 175 Ind. App. 575, 372 N.E.2d 1237, 1240 n.1 (1978)
(quoting now-repealed Indiana Code section 33-12-2-14: “No hearing concerning delinquent children . . .
shall be finally disposed of before a written prehearing investigation report, prepared by a probation officer, is
Court of Appeals of Indiana | Memorandum Decision 18A-JV-738 | November 16, 2018 Page 7 of 11
statute rises to the level of fundamental error because the dictates of due process
were followed and A.C. was afforded a fundamentally fair proceeding.
II. Disposition
[11] A.C. also contends the juvenile court abused its discretion in ordering him to be
committed to the DOC. When announcing its disposition, the juvenile court
explained,
[T]he options available to the Court at this point in time are
commitment to the [DOC] for placement at the Indiana Boy’s
[sic] School, a residential placement, or probation[.] . . . [A.C.] is
almost 18, he will be 18 . . . basically a month from now . . . .
[T]he Court has the ability to exercise jurisdiction until [A.C.] is
21 years of age. That is true. However, as I think we all know
the Court’s ability to effectively assert that jurisdiction . . . after
age 18 it just almost goes away. . . . So, even though the Court
can exercise jurisdiction until age 21, it really doesn’t offer the
Court much or many alternatives. You know, the residential
placement is probably not a viable alternative for many reasons,
so that if we eliminate the residential placement we are with [sic]
between probation and a commitment to the [DOC]. Probation
we have an individual who denies his culpability, given his
strenuous denial of his culpability, . . . sex offender treatment as
[the psychologist] pointed out in his report will probably be
ineffective. We have the language barrier or problem which
although not [A.C.’s] fault necessarily, still it is a complicating
situation, and the Court recognizes the language barrier is
applicable to the [DOC]. . . . Whether it be language, whether it
be psychological issues, whether it be sex offense issues, I mean I
presented to and considered by the hearing judge.”)). The statutes as well as the circumstances here are
sufficiently distinguishable that we are not compelled to follow Mejia in this case.
Court of Appeals of Indiana | Memorandum Decision 18A-JV-738 | November 16, 2018 Page 8 of 11
have to work on the assumption that [the DOC] can provide the
necessary services for [A.C.]. . . . [B]etween residential placement
and the [DOC], I consider the [DOC] to be rehabilitative. . . .
[T]he practicality of the matter is the placement at the [DOC]
would probably be a shorter term placement, undoubtedly a
shorter term placement than residential treatment would be. . . .
[G]iven the options I have available to me which are not the
greatest[, g]iven his age, given the issues raised by [the
psychologist], I think that placement at the [DOC] or placement
in the Indiana Boys School is the most reasonable option
available to the Court. So that will be the Court’s order.
Tr., Vol. 2 at 78-81.
[12] A.C. argues the juvenile court based its disposition on the erroneous belief that
A.C.’s age and inability to speak English deprived the court of any viable
alternatives other than commitment to the DOC. He urges us to reverse and
impose a less restrictive sanction, preferably probation to be served while in his
mother’s custody.
[13] The juvenile court is accorded “wide latitude and great flexibility in dealing
with juveniles[.]” C.T.S. v. State, 781 N.E.2d 1193, 1203 (Ind. Ct. App. 2003),
trans. denied. The goal is to rehabilitate rather than punish the juvenile offender.
Id. The specific disposition of a delinquent child is within the juvenile court’s
discretion, guided by the following considerations: the safety of the
community, the child’s best interests and freedom, the least restrictive
alternative, family autonomy and life, and the freedom and opportunity for
participation of the parent, guardian, or custodian. K.S. v. State, 849 N.E.2d
538, 544 (Ind. 2006). We reverse only for an abuse of discretion, that is, a
Court of Appeals of Indiana | Memorandum Decision 18A-JV-738 | November 16, 2018 Page 9 of 11
decision that is clearly against the logic and effect of the facts and circumstances
before the court, or the reasonable, probable, and actual deductions to be drawn
therefrom. Id.
[14] The law requires only that the disposition selected be in the least restrictive
setting that is “consistent with the safety of the community and the best interest
of the child[.]” Ind. Code § 31-37-18-6. After considering probation and
residential placement, the juvenile court determined that because of the range of
options available to address A.C.’s specific needs and unique circumstances
(mental health treatment, language assistance, and sex offender treatment),
commitment to the DOC was in A.C.’s best interest. Even if options less harsh
than commitment to an institution are available, there are still times when
commitment to a suitable institution is in the best interest of the juvenile and of
society. D.S. v. State, 829 N.E.2d 1081, 1085 (Ind. Ct. App. 2005). Such is the
case here. Although A.C. had not previously been in trouble in the United
States, the juvenile court determined, based on a number of factors including
A.C.’s age; his personal characteristics including the language barrier; and what
the court considered the most rehabilitative, shortest-term option, that
commitment to the DOC was the appropriate disposition. See B.K.C. v. State,
781 N.E.2d 1157, 1172 (Ind. Ct. App. 2003) (noting there are instances where a
short term of confinement “may be one of the most effective rehabilitative
techniques available[,]” as the first exposure to the consequences of continuing
to break the law may compel a juvenile to “readjust his values and priorities in
Court of Appeals of Indiana | Memorandum Decision 18A-JV-738 | November 16, 2018 Page 10 of 11
life”). We cannot say the juvenile court’s dispositional order was an abuse of
discretion.
Conclusion
[15] Because A.C. received a fair hearing, he was not denied due process and cannot
demonstrate fundamental error in the failure to prepare a predispositional
report. The juvenile court’s decision to commit A.C. to the DOC was not an
abuse of discretion. The judgment of the juvenile court is therefore affirmed.
[16] Affirmed.
Baker, J., and May, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-JV-738 | November 16, 2018 Page 11 of 11