Opinion
23A-JV-2607
07-09-2024
N.B., Appellant-Respondent, v. State of Indiana, Appellee-Petitioner.
ATTORNEYS FOR APPELLANT Talisha R. Griffin Sarah P. E. Medlin Marion County Public Defender Agency Indianapolis, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana George P. Sherman Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Marion Superior Court The Honorable Geoffrey A. Gaither, Judge Trial Court Cause No. 49D09-2307-JD-5676
ATTORNEYS FOR APPELLANT Talisha R. Griffin Sarah P. E. Medlin Marion County Public Defender Agency Indianapolis, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana George P. Sherman Deputy Attorney General Indianapolis, Indiana
Judges Bradford and Tavitas concur.
MEMORANDUM DECISION
Baker, Senior Judge.
Statement of the Case
[¶1] N.B., who is transgender,appeals her adjudication as a juvenile delinquent and the subsequent disposition making her a ward of the Department of Correction (DOC), alleging fundamental error and abuse of discretion. Concluding the juvenile court committed neither, we affirm.
N.B. indicated on the record her preferred name with the initials of S.B. and a preference for the use of she/her pronouns when being addressed. The juvenile court and the witnesses at the hearings adhered to these preferences. Because N.B. is her legal name and is contained in the caption of this case, we adhere to those initials. But we do refer to N.B. by use of she/her pronouns.
Facts and Procedural History
[¶2] On July 5, 2023, N.B. arrived at Hope Counseling and Associates (Hope Center), her Department of Child Services (DCS) placement. Emma Vanderpan gave N.B. a tour of the facilities, showed her to her room, and reviewed the house rules. At 10:00 PM, the designated "lights out" time, N.B. became agitated because she did not want to go to bed. N.B. first exited the building but then returned to Vanderpan's office and told her she wanted to call 9-1-1 because "she didn't want to be there." Tr. Vol. II, p. 20. Vanderpan verified that N.B. did not have a medical emergency, and the pair called Vanderpan's supervisor, who indicated that Hope Center would contact N.B.'s DCS caseworker the following morning.
[¶3] N.B. then became "aggressive" and "chaotic," and seized Vanderpan's briefcase. Id. at 21-22. When Vanderpan attempted to call her supervisor for help, N.B. smacked the cell phone out of Vanderpan's hand, first hitting her and then taking possession of the phone. Next, N.B. pushed Vanderpan against her desk, causing Vanderpan to bend painfully backwards. N.B. retreated to her room, and Vanderpan pressed the building's panic button. When Officer Jessica Thom arrived, N.B. immediately handed over Vanderpan's phone.
[¶4] Based on this incident, the State filed a delinquency petition alleging N.B. committed battery resulting in bodily injury, a Class A misdemeanor if committed by an adult; theft, a Class A misdemeanor if committed by an adult; and battery, a Class B misdemeanor if committed by an adult. Ultimately, the juvenile court entered true findings on all counts and placed N.B. in the custody of the DOC for a recommended period of six months. N.B. now appeals.
Issues
[¶5] N.B. presents four issues, which we consolidate and restate as:
I. Whether the juvenile court committed fundamental error when it did not sua sponte dismiss the State's petition against N.B. after the State allegedly failed to preserve materially exculpatory evidence; and
II. Whether the juvenile court abused its discretion by granting wardship of N.B. to the DOC for a recommended period of six months.
Discussion and Decision
I. Fundamental Error
[¶6] N.B., who did not object at trial, argues on appeal the juvenile court committed fundamental error when it did not sua sponte dismiss the State's delinquency petition after the State failed to preserve video footage from Hope Center.
[¶7] "Failure to object at trial waives the issue for review unless fundamental error occurred." Halliburton v. State, 1 N.E.3d 670, 678 (Ind. 2013) (internal quotation omitted). An error is fundamental when there is "a blatant violation of basic principles, the harm or potential for harm is substantial, and the resulting error denies the defendant fundamental due process." Id. (internal quotation omitted). The exception of fundamental error is extremely narrow and is applicable only in egregious circumstances. Id. "To establish fundamental error, the defendant faces the heavy burden of showing that the alleged error was so prejudicial to [her] rights as to make a fair trial impossible." Gary v. State, 113 N.E.3d 237, 242 (Ind.Ct.App. 2018), trans. denied.
[¶8] N.B. contends the video footage is materially exculpatory evidence, the absence of which violates her rights to a fair trial and due process. Evidence is materially exculpatory if it both "possesses an exculpatory value that was apparent before the evidence was destroyed" and is "of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means." Id. (internal quotation omitted). The State's duty to preserve evidence is "limited to evidence that might be expected to play a significant role in the suspect's defense." Id. (internal quotation omitted). Failure to preserve materially exculpatory evidence violates due process regardless of whether the State acted in good or bad faith. Blanchard v. State, 802 N.E.2d 14, 27 (Ind.Ct.App. 2004).
Typically, when determining whether a defendant's rights have been violated by the State's failure to preserve evidence, we begin by deciding whether the evidence is potentially useful or materially exculpatory. Alexander v. State, 197 N.E.3d 367, 370 (Ind.Ct.App. 2022). N.B. does not discuss whether the evidence is potentially useful, nor do we.
[¶9] The evidence in controversy here is video footage from Hope Center. During the State's case-in-chief, both Vanderpan and Officer Thom testified to details of the incident that transpired between N.B. and Vanderpan. On cross examination, N.B. asked each of them about the presence of video cameras at Hope Center. Both witnesses acknowledged there were cameras, but immediately clarified that any footage was inaccessible to them. According to Vanderpan, Hope Center was subpoenaed, presumably by the State, for video footage.
[¶10] Then, N.B. took the stand in her own defense. She both recounted her version of the incident, which varied from that of Vanderpan's, and acknowledged the presence of video cameras at the facility. But at no other point during the bench trial, or any other proceeding in this case, did N.B. inquire about or otherwise mention video footage. Only now on appeal does she assert that video footage from Hope Center would show the exact details of the incident.
[¶11] A close examination of the record reveals no video footage. Stated in many other ways: Hope Center did not produce video footage; the parties did not review video footage; the juvenile court did not consider video footage. And there is nothing in the record which suggests video footage from Hope Center was ever lost or destroyed. This Court is not convinced such video footage exists, nor that, if it does exist, it depicts the incident between N.B. and Vanderpan. Because there is no evidence in the record before us that video footage of this incident exists, our analysis stops here. We cannot say that nonexistent video footage is materially exculpatory. Nor can we say the State failed to preserve it or that its absence violates N.B.'s rights.
[¶12] Thus, we conclude the juvenile court did not commit fundamental error here. As N.B. points out, "[t]he issue be[comes] one of credibility." Appellant's Br. p. 15. But "[i]t is the fact-finder's role, not that of appellate courts, to assess witness credibility ...." Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). Here, the juvenile court was presented with two versions of an incident. And by considering the credibility of the witnesses, the juvenile court made its determination. We decline to reweigh this evidence.
II. Abuse of Discretion
A. Mootness
[¶13] Although the State does not raise the issue, N.B. preemptively argues that although her placement may have lapsed by the time this opinion is handed down, making her subsequent placement argument moot, this Court should still address the argument because the public interest exception to mootness applies. Specifically, N.B. contends her placement in the DOC "raises a novel issue and addresses fundamental interests" concerning transgender youth. Appellant's Br. p. 26.
[¶14] "The long-standing rule in Indiana courts has been that a case is deemed moot when no effective relief can be rendered to the parties before the court." Matter of Lawrance, 579 N.E.2d 32, 37 (Ind. 1991). The case will be dismissed when the controversy at issue has been ended, settled, or disposed of, making it unnecessary to resolve the question at hand. Id. According to N.B., her projected release date from the DOC is July of 2024. Because N.B.'s term may not have terminated by the date this opinion is handed down, her placement argument is not considered moot, and we will address it here. See id. And because the issue is not moot, we decline to address any exceptions to mootness.
B. Standard of Review
[¶15] N.B. argues the juvenile court abused its discretion by making her a ward of the DOC for a recommended period of six months. Specifically, N.B. contends (1) a less restrictive placement is in her best interest because the DOC is unequipped to address her individual needs and puts her in danger, and (2) she is not a danger to the community based on the progress she has made since her pretrial detainment.
N.B. also contends the juvenile court abused its discretion when it recommended a wardship period of six months. Again, she argues the DOC is unequipped to address her individual needs. Because N.B. makes this argument regarding the placement itself, we address the arguments in tandem.
[¶16] Juvenile courts are accorded great flexibility and wide latitude when dealing with juveniles. K.S. v. State, 114 N.E.3d 849, 854 (Ind.Ct.App. 2018), trans. denied. "The specific disposition of a delinquent child is within the juvenile court's discretion ...." Id. When making a disposition determination, juvenile courts consider both the community's safety and the child's best interests and freedom. Ind. Code § 31-37-18-6(1) (1997). The disposition will be affirmed unless there was an abuse of discretion, which is "a 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." K.S., 114 N.E.3d at 854.
Juvenile courts also consider family autonomy and life and the freedom and opportunity for participation of the parent, guardian, or custodian. Ind. Code § 31-37-18-6(2)-(5) (1997). N.B. does not include these factors in her argument, and we decline to address them here because they do not apply to N.B. as a ward of the State.
C. Placement &Duration
[¶17] A juvenile court's disposition placement options include supervised probation and outpatient treatment, as well as DOC wardship, juvenile detention, and home shelter care. Ind. Code §§ 31-37-19-5(b) (2012), -6(b) (2023). "If consistent with the safety of the community and the best interest of the child," the juvenile court should enter the least restrictive dispositional decree. Ind. Code § 31-37-18-6(1). "Thus, the statute recognizes that in certain situations the best interest of the child is better served by a more restrictive placement because 'commitment to a public institution is in the best interest of the juvenile and society.'" M.C. v. State, 134 N.E.3d 453, 459 (Ind.Ct.App. 2019) (quoting D.S. v. State, 829 N.E.2d 1081, 1085 (Ind.Ct.App. 2005), trans. denied, cert. denied. A more restrictive placement, like the DOC, ensures the juvenile receives, in lieu of a punishment, the needed rehabilitative counseling in a secure environment. M.C., 134 N.E.3d at 461.
[¶18] N.B. sought placement at the Neuro Diagnostic Institute (NDI). In fact, N.B.'s dispositional hearing was continued from September 6 to September 27 at N.B.'s request for additional time to secure placement at the NDI. But at the time of the rescheduled hearing, the NDI was still weeks away from deciding whether it would accept N.B. And even if N.B. did secure placement at the NDI, a less restrictive alternative, the juvenile court was not required to order placement there. See D.C. v. State, 935 N.E.2d 290, 292 (Ind.Ct.App. 2010) ("the availability of a less restrictive alternative does not mean the juvenile court was required to order that placement"), aff'd on trans., 958 N.E.2d 757 (Ind. 2011). Ultimately, the juvenile court declined to place N.B. at the NDI and instead granted wardship of N.B. to the DOC at the recommendation of both the probation department and the State.
[¶19] When a juvenile court grants wardship of a juvenile to the DOC under Indiana Code section 31-37-19-6(b), the commitment is indeterminate. D.C., 958 N.E.2d at 759. While the juvenile court may offer a recommendation, "the DOC determines both the placement of the juvenile and the duration of the placement." Id. Here, the juvenile court recommended that N.B. "be committed for a period of six months." Appellant's App. Vol. II, p. 97.
C.1. Juvenile Facility Requirements
[¶20] Our legislature has specified that juvenile facilities must provide (1) a program of recreation, education, counseling, and health care; (2) services and treatment to meet the child's individual needs, and (3) qualified staff to provide rehabilitation and treatment. Ind. Code § 31-37-19-21 (1997). N.B. argues that, because she is a transgender female, the male juvenile DOC facility in which she was placed is unequipped to address her individual needs and puts her in danger, thus not meeting the criteria contained within the statute. We disagree.
[¶21] During the pendency of this case, N.B., by counsel, conferred with the DOC about her concerns with being housed in its facilities. The DOC advised that "youth are placed [in] facilities based on their gender at birth." Tr. Vol. II, p. 65. While this may be true, by itself this is not indicative of the DOC's inability to provide for N.B.
[¶22] N.B. did inquire about the DOC staff members' participation in specialized training for transgender youth, at which time the DOC indicated that to obtain the requested information, N.B. could submit a public records request. N.B., however, did not submit a request, nor did she gather any evidence of the DOC's programs, services, or treatment opportunities available to her.
[¶23] What the juvenile court had before it at N.B.'s dispositional hearing was unsworn opinions from those present for her concomitant CHINS matter and separate juvenile matter. Those unsworn opinions came from her counsel in this matter, her CHINS counsel, and guardian ad litem, amongst others. Each of these individuals opined that the DOC is an ill-suited placement for N.B. However, none of them could point to specific reasons why the DOC was unequipped to address N.B.'s individual needs. And we further note that "[u]nsworn statements by counsel are not evidence." Gajdos v. State, 462 N.E.2d 1017, 1021 (Ind. 1984). It follows, then, that the unsworn opinions provided here by those other than counsel are also not evidence of the DOC's inability to provide for N.B.
[¶24] On appeal, N.B. also relies on a DOC policy and administrative procedure which outlines inclusive gender practices for incarcerated individuals and applies only to the DOC's adult facilities. https://www.in.gov/idoc/files/02-01-118-Inclusive-Gender-Practices-3-1-2023-1.pdf [https://perma.cc/EP33-Z4A4] (last visited July 1, 2024). This policy, however, was not presented to the juvenile court, and thus was not made part of the record on appeal. "[W]e do not consider on appeal any evidence that was not presented to the trial court." Haggarty v. Haggarty, 176 N.E.3d 234, 239 n.1 (Ind.Ct.App. 2021); see also Indiana Appellate Rule 27 (defining record on appeal as "the Clerk's Record and all proceedings before the trial court"). Thus, we cannot consider this policy.
[¶25] Based on the record before us, we ultimately conclude there is no evidence that suggests the DOC is unequipped to address N.B.'s individual needs, nor is there evidence that suggests the DOC wardship places N.B. in danger.
C.2. Further Considerations
[¶26] What the record here does reveal is: (1) N.B's delinquent history; (2) N.B's prior DCS services; and (3) details of N.B.'s pretrial detainment.
[¶27] First, since 2020, N.B. has been adjudicated delinquent in three different cases encompassing five different offenses, two of which are battery. In the first case, the juvenile court declined to order placement because N.B "was already receiving various DCS services." Appellant's App. Vol. II, p. 29. In the second and third cases, the juvenile court placed N.B. on formal probation, which she completed successfully. Yet, N.B. went on to commit three additional offenses here, two of which are battery, echoing her previous adjudications.
[¶28] Second, N.B. has been active with DCS since 2018. The services she has participated in include placements in kinship care, relative care, and foster care, as well as group therapy, life skills, medication management, and educational services. Each of her placements has failed. In fact, during N.B.'s evaluation for this case, N.B admitted that she "disrupts most of [her DCS placements] on purpose." Id. Here, she sabotaged her placement once again when she initiated an altercation on the first night of her new DCS placement.
[¶29] Third, N.B. references the progress she made during her pretrial detainment in the Juvenile Detention Center (JDC). Specifically, N.B. reported that she earned her "gold shirt," an item presented to detainees who have exhibited good behavior. Tr. Vol. II, p. 59. While this is true, a close examination of the record also shows that the State filed yet another delinquency petition, consisting of two additional battery offenses, against N.B. for an altercation that occurred during her pretrial detainment. This also echoes her previous adjudications and is consistent with her commitment to purposefully disrupt her court-ordered placements.
[¶30] Based on her continued and repetitive actions, N.B. puts the community's safety at risk unequivocally demonstrating that a more restrictive placement is in her best interest. We cannot say the juvenile court abused its discretion when it made N.B. a ward of the DOC for a recommended period of six months.
Conclusion
[¶31] The juvenile court did not commit fundamental error, nor did it abuse its discretion. N.B.'s adjudications should be upheld.
[¶32] Affirmed.
Bradford, J., and Tavitas, J., concur.