J.D.M. v. State

• Decision Date: 15 February 2017
• Docket Number: No. 21S01-1702-JV-84,21S01-1702-JV-84
• Citation: 68 N.E.3d 1073
• Parties: J.D.M., Appellant (Respondent below), v. STATE of Indiana, Appellee (Petitioner below).
• Court: Indiana Supreme Court

68 N.E.3d 1073

J.D.M., Appellant (Respondent below),

v.STATE of Indiana, Appellee (Petitioner below).

No. 21S01-1702-JV-84

Supreme Court of Indiana.

February 15, 2017

Attorney for Appellant : Kimberly A. Jackson, Indianapolis, Indiana.

Attorneys for Appellee : Curtis T. Hill, Jr., Attorney General of Indiana, Christina D. Pace, Deputy Attorney General, Indianapolis, Indiana.

On Petition to Transfer from the Indiana Court of Appeals, No. 21A01-1510-JV-1804

Massa, Justice.

J.D.M. was adjudicated a delinquent for committing acts which, if committed by an adult, would constitute Class C felony child molestation, and was subsequently ordered to register as a sex offender. J.D.M. appeals, claiming that the statutory prerequisites for placing a juvenile on the sex offender registry were not met. We agree, and reverse.

Facts and Procedural History

J.D.M. was born in 1996, and "has experience[d] a lot of trauma in his life." Appellant's App. at 214. During his early childhood, at the age of five or six, J.D.M. stated that he was "sexually abused by two adult strangers." Appellant's App. at 69. His younger brother also died around this time. This coincided with J.D.M. becoming defiant with authority, attempting to run away from home, and even attempting suicide. J.D.M.'s mother and father divorced shortly thereafter, and J.D.M. moved with his mother to live near his cousin, whom he identifies as his aunt. During this period J.D.M. also received intermittent treatment for his behavioral issues, with some success. His mother was obese, causing her numerous health problems requiring hospitalization, during which times J.D.M.'s cousin or father would care for him, and he would have to move to their homes. J.D.M.'s mother passed away when he was thirteen due to heart complications.

J.D.M. was on probation at the time,¹ and violated it shortly after he got the news, resulting in a six-month hospital stay. After his release, J.D.M. went to live with his cousin in Texas, before moving back to live with his father in May 2011.

Over the course of the next year, J.D.M.'s condition rapidly deteriorated. He gained approximately 200 pounds, with the goal of obtaining the same weight as his mother before she died. He continued to engage in aggressive and defiant behaviors such as theft and arson, though he was not adjudicated for these offenses. He also developed enuretic and encopretic conditions² with no discernible cause, resulting in his being expelled from high school and being taught privately at the local library. During this time he continued in therapy, and was "diagnosed with ADHD, Oppositional Defiant Disorder and Bipolar II disorder." Appellant's App. at 21.

On September 19, 2012, J.D.M., now age fifteen, was in his bedroom with a nine-year-old boy, who was the son of J.D.M.'s older brother's girlfriend. J.D.M. instructed the boy to remove his pants, and J.D.M. did the same. J.D.M. had the boy lie on top of him, and stated that both boys had erections. J.D.M.'s older brother found them, called for his father, and they called the police.

J.D.M. was charged with being a delinquent child for committing child molestation which, if committed by an adult, would constitute a Class C felony. At the detention hearing, J.D.M.'s father told the juvenile court that he did not want J.D.M. to come home because he was "more or less disgusted with him the way he's been." Tr. at 13. The juvenile court ordered placement of J.D.M. at the Wernle Youth and Family Treatment Center, and for Wernle to perform a comprehensive Diagnostic Evaluation of J.D.M. On October 11, 2012, Wernle reported that J.D.M. "appear[ed] to be suffering from traumatic grief," and determined that he "present[ed] a high risk to sexually re-offend, without proper treatment interventions." Appellant's App. at 68, 73. On November 2, 2012, Lisa Day of the Fayette Probation Department filed her Pre-Disposition Report ("PDR"), which reviewed Wernle's Diagnostic Evaluation, and "request[ed] that youth be placed into the Sexually Maladaptive Program at the Wernle Youth and Family Treatment Center." Appellant's App. at 92. The PDR did not contain a recommendation that J.D.M. be placed on probation.

J.D.M. subsequently admitted to the allegations, and was adjudicated a delinquent. The juvenile court continued his placement at Wernle pending a formal dispositional hearing, which took place on January 16, 2013. At that hearing, both sides agreed that his continued treatment at Wernle was the best course, and then moved on to the issue of probation. The trial court initially suggested that he be formally placed on probation at that time; Officer Day suggested otherwise: "My thoughts are um, as far as placing J. I guess on formal probation my thoughts are that we order him into Wernle to complete his treatment once he has completed treatment we come back and at that time place him on formal probation using the sex offender guidelines." Tr. at 26 (emphasis added). Both the State and J.D.M.'s counsel agreed with this approach, and the juvenile court consented, stating "we'll continue the placement at Wernle and we will address um, the conditions of probation and all that when you're ready to be released from Wernle." Tr. at 28. The accompanying dispositional order "approve[d] of the probation officer's recommendation in the PDR" and continued placement at Wernle, without a formal entry that J.D.M. was on probation . Appellant's App. at 109. The order did state, however, that the Fayette County Probation Department would have "responsibility for the placement and care of the child," and would be required to "file a report every three months after the date of this order on the progress made on implementing the decree." Appellant's App. at 110. The court also notified J.D.M.'s school of the adjudication, and left blank the portion describing his "sentence or juvenile law disposition." Appellant's App. at 112.

While at Wernle, J.D.M. began his treatment for sexually maladaptive behavior. During this period J.D.M.'s father died, resulting in guardianship passing to his cousin. At subsequent review hearings on June 19, 2013, October 16, 2013, and January 15, 2014, Officer Day and Wernle both reported J.D.M. continued to make "minimal to moderate progress" in his treatment areas, and recommended his placement at Wernle continue. Appellant's App. at 120–24, 130, 133, 142. The trial court agreed each time, noting that "no change is made in the dispositional decree" originally entered January of 2013. Appellant's App. at 128, 144. The juvenile court ordered a permanency plan which found that J.D.M. was "progressing well in said placement," with the goal that J.D.M. return to his cousin's home upon completion of treatment. Appellant's App. at 136–37.

On May 14, 2014, Officer Day again reported that J.D.M. now age seventeen, was making "minimal to moderate progress" in treatment. Appellant's App. at 145. However, this report also revealed that J.D.M. had suffered even more personal setbacks. First, his cousin had moved back to Texas, resulting in "limited contact." Appellant's App. at 145; Tr. at 43. Second, J.D.M. revealed in therapy that he had been sexually abused by his father and his older brother; this report eventually led to his brother's incarceration. No family appeared for J.D.M. at this review hearing, and the juvenile court again continued placement at Wernle.

As J.D.M.'s eighteenth birthday neared, the juvenile court expressed to the parties the need to hold a sex offender registration hearing. The initial hearing was held on October 27, 2014, and Wernle provided a detailed report in advance of the hearing. The report noted the significant progress J.D.M. had made during his time at Wernle, such as "definite indications of truthfulness" on his polygraph test with respect to his sexual history, and that he had lost 84 pounds. Appellant's App. at 159. Nevertheless, the report still found he had a "high risk of sexual recidivism" due to his continued viewing of inappropriate pornography, social isolation and underdevelopment, and his continuing grief and trauma from childhood. Appellant's App. at 165. Dr. Soper, who prepared the report, further testified at the hearing that J.D.M. was at "moderate to high risk" to reoffend, but that that could diminish with continued treatment. Tr. at 63 –64. The juvenile court took the matter under advisement, but did not rule on the registration requirement, finding that it should conduct another hearing on the matter 15 days prior to J.D.M.'s release from Wernle.

When J.D.M. turned eighteen, he was transitioned to the Wernle's Semi-Independent Living Program (Kolsky Hall), and Officer Day reported he was "doing well." Appellant's App. at 190. At the February 11, 2015 review hearing, the representative from Wernle stated they could provide J.D.M. with such services "up to a day before his 22nd birthday." Tr. at 83. However, J.D.M. did not assimilate well at Kolsky, and was placed back in the primary facility in April, though he did complete the requirements to obtain his GED. Officer Day also testified at the June 10, 2015 review hearing that she was looking into transitioning J.D.M. to a group home, as his treatment regimen was nearing completion.

An additional sex offender registry hearing was held on August 11, 2015. Wernle provided a new report in advance of this hearing, which found J.D.M. was at "moderate risk of sexual recidivism." Appellant's App. at 213. Dr. Soper again testified, this time that J.D.M. was at "low to moderate risk for re-offense." Tr. at 113. On September 8, 2015, the juvenile court issued an order that required J.D.M. to register as a sex offender, finding the State had provided clear and convincing evidence that J.D.M. was likely to reoffend. The juvenile court set accompanying conditions of probation, including the registration requirement, on September 30, 2015. J.D.M. appealed, and our Court of Appeals affirmed via memorandum...