BJB v. State
| Decision Date | 06 April 2004 |
| Docket Number | No. 65A05-0309-JV-433.,65A05-0309-JV-433. |
| Citation | 805 N.E.2d 870 |
| Parties | B.J.B., Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Jean E. Hadley, Mt. Vernon, IN, Attorney for Appellant.
Steve Carter, Attorney General of Indiana, Andrew A. Kobe, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
B.B. appeals the juvenile court's order directing him to register as a sex offender with the local sheriff. We reverse.
The sole restated issue is whether the juvenile court conducted an evidentiary hearing from which it could have found clear and convincing evidence that B.B. was likely to commit another sex offense.
B.B. was born in 1986. His first contact with the juvenile system was in 1997, when he was referred to an informal adjustment program for having committed animal cruelty. In 2000, B.B. admitted to again committing animal cruelty. He was formally adjudicated a delinquent this time and was placed on probation. A psychological evaluation performed prior to disposition on this charge stated:
there are specific patterns of behavior which, if not curbed, will lead to a host of long term interpersonal and social consequences.... His history of multiple acts of participating in or witnessing animal cruelty strongly suggest[s] an inability to empathize with other living beings and gives witness to the fact that, if not corrected or better socialized, his behavior could develop in a much more antisocial bent.
On January 2, 2001, the State filed a petition alleging B.B. molested a five-year old boy by fondling him, a Class C felony if committed by an adult, in June or July of 2000. B.B. denied committing this act, but the allegation was found true following a fact-finding hearing in September 2001. B.B. was psychologically evaluated again before final disposition; the ensuing report stated that testing results App. p. 99. On November 28, 2001, as part of the final disposition, the juvenile court ordered B.B. to be placed with White's Institution for Boys, a private residential facility.
While at White's, B.B. attended three sex offense group counseling sessions per week and also attended individual counseling. Reports from White's in the record before us generally reflect that B.B. was well behaved, did well in school, and was progressing in his treatment, especially after he admitted to counselors and his parents that he had molested the five-year old. There is also no evidence in the record that B.B. engaged in any delinquent behavior after the molesting incident in the summer of 2000. However, the White's staff was concerned that B.B. engaged in "sneaky and manipulative behavior" to cover up "mischievous but not always serious" incidents that involved only him and not other residents, such as changing his pants in a hallway. App. p. 62. Additionally, the White's staff was disappointed that B.B., on advice of counsel and pursuant to a court order, refused to take a polygraph test, which was part of White's standard treatment protocol. The reports also indicate that White's planned to recommend B.B.'s release in the summer of 2003.
After conducting a review hearing in June 2003, the juvenile court ordered B.B.'s release from White's. He was placed on probation and electronic monitoring; the juvenile court also ordered home-based counseling for B.B. and his parents. On July 18, 2003, the juvenile court, acting ex parte and sua sponte, issued an order requiring B.B. to register with the Posey County Sheriff's Department as a sex offender. In its order, the court stated that its decision was based upon a discharge summary received from White's indicating that B.B. "did not successfully complete sex offender treatment." App. p. 48. This discharge summary is not in the record before us, nor is there any indication in the chronological case summary ("CCS") that it was filed with the juvenile court.
B.B. promptly moved for a hearing regarding this order, which was set for August 13, 2003. The hearing was primarily a discussion between the juvenile court, B.B., his counsel, and his parents. The State presented no evidence and made no argument, aside from clarifying that B.B. was fourteen at the time of child molestation. B.B.'s counsel argued, and the juvenile court essentially agreed, that it was unfair to base the sex offender registration order solely on the White's discharge summary because the finding that he had not successfully completed treatment was based primarily on B.B.'s refusal to take the polygraph test, pursuant to the advice of counsel and a specific court order. Nevertheless, the court reaffirmed its order requiring B.B. to register as a sex offender, based on the psychological evaluations performed before he was sent to White's. B.B. now appeals the sex offender registration order.
trans. denied. It is impossible to apply this standard if there has not been a hearing at which evidence and testimony was presented.
This is especially true with respect to a finding that must be supported by clear and convincing evidence. That standard "requires a stricter degree of proof than a mere preponderance of the evidence." K.J.P. v. State, 724 N.E.2d 612, 615 (Ind.Ct.App.2000), trans. denied.
[C]lear and convincing proof is a standard frequently imposed in civil cases where the wisdom of experience has demonstrated the need for greater certainty, and where this high standard is required to sustain claims which have serious social consequences or harsh or far reaching effects on individuals to prove willful, wrongful and unlawful acts to justify an exceptional judicial remedy....
Id. at 615-16 (quoting Estate of Reasor v. Putnam County, 635 N.E.2d 153, 159-60 (Ind.1994) (quoting Travelers Indem. Co. v. Armstrong, 442 N.E.2d 349, 360-61 (Ind.1982))).
We discussed the difference between the adult criminal justice system and the juvenile delinquency system in G.B.:
The statutory scheme for dealing with minors who commit crimes is vastly different from the statutory scheme directed to adults who commit crimes. C.W. v. State, 643 N.E.2d 915, 917 (Ind.Ct. App.1994). "American society [has] rejected treating juvenile law violators no differently from adult criminals in favor of individualized diagnosis and treatment." State ex rel. Camden v. Gibson Circuit Court, 640 N.E.2d 696, 697 (Ind. 1994). Therefore, it is the policy of this State to "ensure that children within the juvenile justice system are treated as persons in need of care, protection, treatment, and rehabilitation ...." Ind. Code § 31-10-2-1(5) (emphasis added); see also B.L. v. State, 688 N.E.2d 1311, 1314 (Ind.Ct.App.1997)
(the ) (emphasis added).
We also observe that in Spencer v. O'Connor, 707 N.E.2d 1039 (Ind.Ct.App. 1999), trans. denied, this court concluded that requiring an adult criminal sex offender to place his or her name on the sex offense registry is not a "punishment" within the meaning of the Ex Post Facto clauses of the United States and Indiana Constitutions. In so doing, we emphasized that much of the information contained in the registry with respect to adult criminal offenses is already in the public domain and is already accessible to the public. Id. at 1044. Also, to the extent registered offenders were sometimes subjected to vigilante acts, we observed that such incidents "are not consequences imposed by the [Registry] Act itself, but flow from the fact of the underlying criminal act." Id. at 1046. The identity of juvenile delinquents, however, is often not a matter of public knowledge because of the underlying policy of rehabilitating, not punishing, juveniles. See I.C. XX-XX-X-X (providing for general confidentiality of juvenile records, subject to delineated exceptions). We also acknowledged in Spencer "that the indirect effects of notification on the offenders and their families may be harsh" and "may include lost employment opportunities, housing discrimination, threats, and violence." Spencer, 707 N.E.2d at 1045.
In light of these considerations and the general policy of rehabilitation underlying the juvenile delinquency system, it is clear that there must be an inquiry at a full evidentiary hearing before a juvenile may be placed on the sex offender registry. Additionally, we have held that when a juvenile is placed in a secure facility, a sex offender registry hearing can only be conducted after the juvenile has been released from the facility. G.B., 709 N.E.2d at 354; see also I.C. 5-2-12-4(b)(2) (...
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