M.H., Appellant-Respondent v. State of Indiana, Appellee-Petitioner (2025)

MEMORANDUM DECISION

[1] M.H., a juvenile delinquent, appeals the juvenile court's order modifying his dispositional decree regarding his placement. He asserts that the juvenile court committed fundamental error. We affirm.

Facts and Procedural History

[2] On September 8, 2023, the State filed a delinquency petition, which was approved by the juvenile court, alleging M.H. was a delinquent child for committing what would be theft as a class A misdemeanor and unauthorized entry of a vehicle as a class B misdemeanor if committed by an adult. The court appointed counsel for M.H. and, on September 22, 2023, M.H. admitted to committing the act that would constitute class A misdemeanor theft, and the court granted the State's request to dismiss the other allegation. The court adjudicated M.H. a delinquent child and ordered him placed at the Youth Care Center (“YCC”) until the dispositional hearing. On October 30, 2023, the court held a hearing and entered its dispositional order continuing M.H.’s placement at the YCC but ordered that he would be placed at Lutherwood Residential Treatment Center for a “Diagnostic and Evaluation” as soon as a bed became available. Appellant's Appendix Volume II at 5.

[3] Following diagnostic testing, on January 8, 2024, the court ordered M.H. released from detention and placed him on “Electronic House arrest for a period of 90 days” and “probation for a period of 6 months.” Id. at 6. On January 22, the Vanderburgh County Probation Department (“the Probation Department”) filed a “Motion to Modify and Probable Cause Affidavit to Detain.” Id. Following a hearing, the court modified the dispositional order and placed M.H. at Transitions Academy (“Transitions”), a middle school that serves grades six through eight in Indianapolis.

[4] On August 2, 2024, the Probation Department filed a second motion for modification of placement. Specifically, the Probation Department alleged that M.H. “has violated his Court ordered placement at Transitions and they have asked for his removal as indicated in the attached documents.” Id. at 145. The Probation Department attached to its motion to modify a letter submitted by Transitions which stated that Transitions had reason to believe that M.H. was involved “in a shoot out with another youth ․ while on a home pass.” Id. at 147. The letter stated that Evansville “police confirmed that there was a shoot out and that they have witnesses that point to [M.H.] being one of the shooters,” but regardless of whether the police had enough evidence to charge M.H., “[s]everal parts of the therapeutic timed visitation safety plan” had been violated on previous home passes when M.H.’s grandmother failed to provide adequate supervision as required. Id. The letter concluded:

Due to [M.H.’s] reckless and dangerous behaviors, it is clear that [M.H.] is not internalizing the treatment from the program. Grandmother is also not working with the team to ensure [M.H.’s] safety through supervision. Without [G]randmother and [M.H.] being on board with [the] safety plan there is no way to ensure appropriate and safe reunification. [M.H.] continues to show that he places himself and other[s] in high risk and very dangerous situation[s]. Due to this [M.H.] is not appropriate for placement or continued treatment at Transitions Academy.

Id. at 147-148.

[5] The court held a detention hearing on August 5, 2024. M.H.’s probation officer, Brittany Robbins, testified that she had “received a letter of removal from Transitions due to the lack of supervision that has occurred on [M.H.’s] [home] visits.” Transcript Volume II at 5. She further stated that she “received a new referral from the Evansville Police Department” which the court noted “alleged criminal recklessness, shooting firearm into an inhabited dwelling, and dangerous possession of a firearm.” Id. Robbins testified that “[d]ue to receiving ․ a letter of recommendation of removal from Transitions, I'm asking that he is ․ detained at YCC and a return hearing be set.” Id. at 7. The court ordered M.H. detained at YCC pending a modification hearing.

[6] On August 16, 2024, the court held an evidentiary hearing on the motion to modify. During the hearing, the prosecutor made clear that he was not yet proceeding on or presenting evidence regarding the potential “new” delinquency charges “of gun possession,” but was proceeding with the motion to modify due to the stance of Transitions finding M.H. “no longer suitable” for placement. Id. at 10. M.H.’s counsel stated, “I think it goes without saying that Transitions does not find this Juvenile suitable in this placement anymore and I think I would agree to that and I think I would agree to the fact that a letter was sent to this family or to the Court from Transitions. I've read it.” Id. at 11. The court ordered that M.H. remain at YCC and set disposition on the motion to modify for September 16, 2024.

[7] The Probation Department filed a modification report with the court on September 13, 2024. On September 16, 2024, the court held a disposition hearing. At the outset of the hearing, Robbins discussed M.H.’s current failed placement at Transitions, his lengthy juvenile delinquency history, and his numerous failed less-restrictive prior placements. Following Robbins's recommendation for M.H.’s placement in the Indiana Department of Correction (“DOC”) due to his “now failed placement at Transitions,” the prosecutor argued that M.H. “has received eleven referrals and to me Transitions is a very good opportunity for Juveniles to take part in. When Transitions no longer finds you appropriate the next natural step, in my opinion, is DOC because there's not any other placement for them.” Id. at 14. M.H.’s counsel acknowledged that M.H. “did get removed from Transitions ․ That's their decision ․ they just did not find him appropriate for their program. I can't argue with that. If they don't want him there, they don't want him there.” Id. at 15. She argued, “But I don't like to send kids to the [DOC]” and “He's done house arrest before so I'm asking the Court ․ to consider placing him on electronic home detention.” Id.

[8] The court took the matter under advisement and, on September 18, 2024, entered its order on disposition stating:

Comes now the Court and having the disposition of modification under advisement, issues its ruling. Probation Officer having filed with the court its predispositional report,[1] and the court having considered said report, the same is now admitted into evidence. Court finds that the juvenile has exhausted all rehabilitative options, Court now orders the juvenile is made a ward of the Indiana Department of Correction for placement at the Indiana Boys School. Juvenile is ordered held in secure detention at YCC pending transportation.

Appellant's Appendix Volume II at 17.

Discussion

[9] M.H. asserts that the trial court violated his “Right to Due Process” when it modified his dispositional order after “a fact-finding hearing that lasted less than four minutes at which the State presented no evidence to support its motion to modify and after a dispositional hearing that lasted just over five minutes at which, again, the State presented no evidence.” Appellant's Brief at 9. He complains that “the State presented no evidence” that he “did, in fact, commit the violations,” namely that he was involved in the “rumored” shootout. Id. at 17-18. The State responds that “[w]hile due process requires [it] to present evidence to support its allegations that the juvenile engaged in wrongdoing,” the motion to modify here was not based upon the rumored shootout; rather, it was based on M.H.’s violation of the terms of his placement at Transitions and his removal from that program. Appellee's Brief at 8. The State argues that M.H.’s counsel “clearly and unequivocally admitted that Transitions Academy would no longer accept placement of M.H.,” thereby obviating the need for an evidentiary presentation regarding “the need to remove M.H. from Transitions Academy.” Id.

[10] We begin by noting that M.H. concedes that he did not “raise the due process argument regarding the lack of an evidentiary hearing in the proceedings below.” Appellant's Brief at 20. Accordingly, he asserts that fundamental error occurred. We observe that fundamental error is an extremely narrow exception that allows a defendant to avoid waiver of an issue. Cooper v. State, 854 N.E.2d 831, 835 (Ind. 2006). It is error that makes a fair trial impossible or constitutes clearly blatant violations of basic and elementary principles of due process presenting an undeniable and substantial potential for harm. Id. This exception is available only in “egregious circumstances.” Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010), reh'g denied. “Fundamental error is meant to permit appellate courts a means to correct the most egregious and blatant trial errors that otherwise would have been procedurally barred, not to provide a second bite at the apple for defense counsel who ignorantly, carelessly, or strategically fail to preserve an error.” Ryan v. State, 9 N.E.3d 663, 667 (Ind. 2014), reh'g denied.

[11] The juvenile court system is founded on the notion of parens patriae, which allows the court to step into the shoes of the parents. In re K.G., 808 N.E.2d 631, 635 (Ind. 2004). The parens patriae doctrine gives a juvenile court the power to further the best interests of the child, which implies a broad discretion unknown in the adult criminal court system. Id. at 636. The juvenile court therefore has wide latitude and great flexibility in its dealings with juveniles. K.A. v. State, 938 N.E.2d 1272, 1274 (Ind. Ct. App. 2010), trans. denied. The choice of the specific disposition of a juvenile adjudicated a delinquent child is a matter within the sound discretion of the juvenile court and will be reversed only if the court abuses that discretion. Id. The juvenile court's discretion is subject to the statutory considerations of the welfare of the child, the safety of the community, and the policy of favoring the least harsh disposition. Id.

[12] A juvenile charged with delinquency is entitled to have the court apply those common law jurisprudential principles which experience and reason have shown are necessary to give the accused the essence of a fair trial. K.G., 808 N.E.2d at 635 (citing In re Gault, 387 U.S. 1, 30-31, 87 S. Ct. 1428 (1967)). Regarding juvenile disposition modifications specifically, Ind. Code § 31-37-22-3(b) states in part that “the probation officer shall give notice to the persons affected and the juvenile court shall hold a hearing on the question.” This Court has concluded that “[w]hile the statute does not explicitly define the type of hearing required, our consideration of basic due process principles instructs us an evidentiary hearing is required.” In re M.T., 928 N.E.2d 266, 269 (Ind. Ct. App. 2010), trans. denied. We explained that “basic due process principles and case law precedent lead us to conclude a trial court may not modify a juvenile's disposition without a hearing at which the State presents evidence supporting the allegations listed in the revocation petition.” Id. at 271.

[13] M.H. asserts that this Court's decision in M.T. “mandates reversal in this case.” Appellant's Brief at 16 (capitalization and emphasis omitted). We must disagree. In M.T., the State moved for modification of a juvenile dispositional decree alleging that the juvenile committed four violations of his probation; however, during the modification hearing, the State did not present any evidence of the violations alleged. M.T., 928 N.E.2d at 268. After determining that due process required a hearing at which the State presents evidence supporting the allegations listed in the revocation petition, we concluded that reversal was warranted because the State failed to present any evidence in support of the probation violations alleged as a basis for the modification. Id. at 273.

[14] The current case is distinguishable from M.T. As observed by the State, the juvenile court's decision to modify here was not based on M.H.’s alleged participation in the shootout. Rather, the juvenile court's modification was based on Transition's refusal to accept M.H.’s continued placement. At the August 5, 2024 hearing, Robbins testified regarding receiving a letter of removal from Transitions due to the lack of supervision that had occurred on M.H.’s home visits. During the September 16, 2024 hearing, Robbins stated that M.H. had shown that he was beyond the control of his guardian, he had failed to be cooperative in the school setting, had exhausted all of the court's rehabilitative efforts, and had failed placement at Transitions. Further, not only did M.H.’s counsel not challenge the State's evidentiary presentation, or lack thereof, on this matter, his counsel made a judicial admission to this fact. “To qualify as a judicial admission, an attorney's remarks must be a ‘clear and unequivocal admission of fact.’ ” Tanksley v. State, 144 N.E.3d 824, 826 (Ind. Ct. App. 2020) (quoting Parker v. State, 676 N.E.2d 1083, 1086 (Ind. Ct. App. 1997)), trans. denied. “Stated differently, the attorney's remarks ‘must be an intentional act of waiver[,] not merely assertion or concession made for some independent purpose.’ ” Id. (quoting Collins v. State, 174 Ind. App. 116, 120-121, 366 N.E.2d 229, 232 (1977), reh'g denied).

[15] Here, M.H.’s counsel stated unequivocally that M.H. did not challenge his removal from Transitions or the reasons therefore. Indeed, M.H.’s counsel stated that she “would agree” that such placement was no longer suitable. Transcript Volume II at 11. She remained steadfast in this position both during the factfinding hearing and the disposition hearing, each time neither questioning nor addressing the sufficiency of the evidence that M.H. violated the terms and conditions of his placement at Transitions justifying such removal. We view counsel's remarks as an intentional act of waiver as to the issue of M.H.’s violation of the terms of his placement at Transitions and the necessity for modification of that placement. The only issue that remained was where M.H. should be placed. M.H. does not specifically challenge the trial court's reasoning for placing him in the DOC as opposed to an alternative placement, and thus we decline to address that decision further.

[16] To the extent that M.H. challenges the juvenile court's admission and consideration of the modification report, we similarly find no reversible error. M.H. argues that the court violated his due process rights by admitting the report “after the conclusion of all hearings,” claiming he “had no opportunity to object to the modification report which was rife with unreliable hearsay.” Appellant's Brief at 18-19.

[17] Regarding any alleged hearsay contained in the report, it is well settled that in juvenile disposition proceedings, hearsay is admissible so long as it bears substantial indicia of reliability. See C.S. v. State, 817 N.E.2d 1279, 1281 (Ind. Ct. App. 2004) (holding that juvenile court properly considered probation officer's hearsay testimony about drug screen results as the testimony bore “a substantial indicia of reliability”). The modification report was prepared by Robbins, the probation officer assigned to M.H.’s case, and M.H. provides us with no argument as to why the report, or contents thereof, were unreliable or untrustworthy. Significantly, Robbins specifically referenced the content of the report when giving her placement recommendation during the disposition hearing, without objection from M.H.’s counsel. Under the circumstances presented, we cannot say that the court's belated admission and consideration of the modification report violated M.H.’s due process rights.²

[18] In light of the foregoing, we conclude that M.H. was afforded due process and we cannot say that error, fundamental or otherwise, occurred in the juvenile court's modification of his placement.

[19] Accordingly, we affirm the juvenile court's order.

[20] Affirmed.

FOOTNOTES

1.   We agree with the State that the court's reference to the “predispositional report” as opposed to the “modification report” filed with the court on September 13, 2024, is simply a scrivener's error. Appellant's Appendix Volume II at 151.

2.   We note that much of M.H.’s appellate challenge to the court's consideration of the modification report focuses on his claim that “it is unclear that the [modification report] was the one referred to by the juvenile court as it is not titled as indicated in the juvenile court's order.” Appellant's Brief at 19. As stated earlier, we think it is clear from the record that the juvenile court's reference to a “predispositional report” in its order was simply a scrivener's error.

Brown, Judge.

Chief Judge Altice and Judge Tavitas concur. Altice, C.J., and Tavitas, J., concur.