L.B. v. State, 71A03-9511-JV-391

Docket NºNo. 71A03-9511-JV-391
Citation675 N.E.2d 1104
Case DateDecember 23, 1996
CourtCourt of Appeals of Indiana

Page 1104

675 N.E.2d 1104
In the Matter of L.B., a Child Alleged to be a Delinquent
Child, Appellant-Respondent,
STATE of Indiana, Appellee-Petitioner.
No. 71A03-9511-JV-391.
Court of Appeals of Indiana.
Dec. 23, 1996.

Page 1105

James N. Clevenger, Kizer & Neu, Plymouth, for Appellant-Respondent.

Pamela Carter, Attorney General of Indiana, Rafal Ofierski, Deputy Attorney General, Indianapolis, for Appellee-Petitioner.



Appellant-respondent, sixteen-year-old L.B., appeals the finding of delinquency and the dispositional order directing that he be sent to Indiana Boys School. The facts relevant to the appeal are recited below.

In March 1994, L.B. and a group of friends were at an apartment. The victim, fourteen-year-old C.A. was present. The friends drank alcoholic beverages and listened to music.

L.B. asked C.A. to talk to him in the bathroom. Once inside the bathroom, L.B. and C.A. talked. Then L.B. pushed C.A. onto her back. L.B. ordered C.A. to perform a sexual act. He removed C.A.'s jeans and underwear, removed his pants and put on a condom. C.A. repeatedly said, "No." C.A. struggled to get up, but L.B. pushed her back stating he would be gentle. L.B. penetrated C.A. who felt pain and started to cry.

C.A.'s pleas were overheard by her friends in the living room. They attempted to enter the bathroom. L.B. blocked their entrance. The friends persisted. L.B. relented and allowed C.A. to dress and leave the bathroom.

C.A. was crying as she left the bathroom. She told her friends that she was hurt. Soon thereafter, her friends took C.A. to a hospital.

Petitions alleging the delinquency of L.B. were filed. Included were three charges: Count I, child molesting, a Class C felony; Count II, sexual battery, a Class D felony; and Count III, child molesting, a Class D felony. After a hearing conducted on two days in March 1995, the court found that L.B. committed the acts alleged in Counts I and III. L.B. was determined to be a delinquent child. After a dispositional hearing, L.B. was ordered to Indiana Boys School. This appeal ensued.

As restated, L.B. presents three issues for review:

(1) whether L.B.'s due process rights were violated when his parents were required to leave the hearing based upon a separation of witnesses order;

(2) whether the trial court erred in weighing the evidence of a partially erased allegedly exculpatory tape-recorded conversation; and

(3) whether trial counsel was ineffective.

L.B.'s first contention is that his constitutional right to due process was impeded when his parents were not allowed to listen and participate in his entire hearing based upon the order separating witnesses. According to L.B., the right of his parents to be present at all stages of the hearing is of constitutional proportions. Although no objection was raised regarding the exclusion of his parents in the separation order, L.B.

Page 1106

contends that his trial counsel was ineffective for failing to do so.

IND.CODE § 31-6-4-9 (1995 Supp.) provides, in pertinent part:

Petition alleging delinquency

(g) The child, the child's parent, the child's guardian, or the child's custodian, 1 and the prosecuting attorney are parties to the proceedings described in this article and have all rights of parties provided under the Indiana Rules of Trial Procedure.

Added in P.L. 268-1995, Section 5.

The provision in (g) was added to the section regarding delinquency petitions effective July 1, 1995, several months after the hearing in the instant case. 2 Along with other rights, the section acknowledges the right of parents to be present at hearings concerning the child.

The right may be waived. A specific provision for waiver appears in IND.CODE § 31-6-7-3(g) (1993 Ed.) which states: "The right of a parent, guardian, or custodian to be present at any hearing concerning his child is waived by that person's failure to appear after lawful notice." The section providing for waiver of the right to be present existed prior to the codification prescribing parents rights as parties in delinquency proceedings. Implicitly, the parents' right to be present at delinquency proceedings and other matters concerning their minor children pre-dates the codification.

Amendments to statutes are to be construed in conjunction with the original act to which they relate as constituting one law, as a part of the original act, and with other statutes on the same subject or relative subjects whether in force or repealed. Town of Merrillville v. Merrillville Conservancy, 649 N.E.2d 645, 651 (Ind.Ct.App.1995). Upon enacting an amendatory statute, the legislature is presumed to have intended to alter the law. Id. However, an exception to the presumption exists. The presumption is inapplicable if it appears that the amendment was made only to express the original intention of the legislature more clearly. Id.

In the present case, construction of the portion of the statute formalizing parents' rights as parties in conjunction with the surrounding statutes which already contained the provision, and related statutes which spoke of waiving the right to be present, clearly indicates that the legislature intended to clarify parents' rights as parties. The acts regarding juveniles are replete with references to parents' rights to attend and participate in proceedings regarding their minor children whether the proceedings are directed to acts of the parents or the children. Indeed, except in circumstances similar to those in the present case with a separation of witnesses order applied to parents as witnesses, it is difficult to perceive of courts intentionally excluding parents from delinquency proceedings. Accordingly, parents' rights as parties pre-date the amendment to the delinquency petition statute. The right of L.B.'s parents to be present at L.B.'s delinquency proceedings existed at the time of the hearing, at which they were excluded.

Here, the exclusion of the parents during a substantial portion of the delinquency hearing was based upon the request for separation of witnesses. The parents appeared. They left the hearing only upon instruction by the court. The trial court stated:

There has been a motion for separation of witnesses. Each side may designate a party as their witness-in-chief to remain at counsel table, and everyone else has to remain outside of the court room until they are called to testify. You are further admonished not to discuss your testimony with anyone other than the attorneys.

Generally, " '[i]t is the right of every party litigant to be present in person in court

Page 1107

upon the trial of his own case.' " See Gage v. Bozarth, 505 N.E.2d 64, 65 (Ind.Ct.App.1987) (finding exception when party unable to assist in or comprehend proceedings, due process rights may be adequately protected by counsel), quoting Ziegler v. Funkhouser, 42 Ind.App. 428, 432, 85 N.E. 984, 986 (1908). Further, it is noteworthy that criminal defendants' right of confrontation requires...

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5 cases
  • J.R. v. State, 1D05-0757.
    • United States
    • Court of Appeal of Florida (US)
    • March 29, 2006
    ...that have considered the question, we conclude that it is appropriate for J.R. to assert this as error on appeal. See L.B. v. State, 675 N.E.2d 1104, 1107 (Ind.Ct.App.1996) ("Given that the right existed, it must be determined whether it may be asserted by L.B. and whether denial of the rig......
  • CTS v. State, 49A02-0206-JV-439.
    • United States
    • Court of Appeals of Indiana
    • January 29, 2003
    ...from the courtroom during that hearing. C.T.S. argues that the circumstances in this case are similar to those in L.B. v. State, 675 N.E.2d 1104 (Ind.Ct.App.1996). In L.B., the juvenile argued that his constitutional right to due process was violated when his parents were not permitted to b......
  • AEB v. State, 49A02-0105-JV-262.
    • United States
    • Court of Appeals of Indiana
    • October 3, 2001
    ...of services often including allegations of some neglect by the parents, the child's and parents' interests are the same. L.B. v. State, 675 N.E.2d 1104, 1107 (Ind. Ct.App.1996) (allowing a child to assert his parent's right to be present at his hearing). Because a parental participation ord......
  • L.E.D. v. State
    • United States
    • Court of Appeal of Florida (US)
    • November 24, 2010
    ...the First District cites two out-of-state cases in support of the child having standing to assert this right. See L.B. v. State, 675 N.E.2d 1104, 1107 (Ind.Ct.App.1996); Hopkins v. Youth Court of Issaquena Cnty., 227 So.2d 282, 284 (Miss.1969).48 So.3d 169The state in the instant case cites......
  • Request a trial to view additional results

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