N.L. v. State
| Decision Date | 01 July 2013 |
| Docket Number | No. 47S01–1302–JV–126.,47S01–1302–JV–126. |
| Citation | 989 N.E.2d 773 |
| Parties | N.L. Appellant (Respondent below), v. STATE of Indiana, Appellee (Petitioner below). |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Brent Westerfeld, Indianapolis, IN, Attorney for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, Eric P. Babbs, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
On Petition to Transfer from the Indiana Court of Appeals, No. 47A01–1205–JV–245
Sex-offender registration aims to protect innocent members of society from repeat sex offenses by formerly convicted sex offenders, while our juvenile system aims to rehabilitate juvenile offenders. To balance these competing goals in light of registration's serious social consequences and far-reaching effects, trial courts may place a child on the sex offender registry only if they first find by clear and convincing evidence that the child is likely to repeat a sex offense. But our trial courts have struggled with how to apply that statutory requirement. Today, we clarify that a juvenile may only be ordered to register as a sex offender if, after an evidentiary hearing, the trial court expressly finds by clear and convincing evidence that the juvenile is likely to commit another sex offense. Because the trial court's order here placing N.L. on the registry was neither issued in connection with an evidentiary hearing, nor accompanied by any findings, we reverse and remand.
N.L. admitted to conduct that would constitute D-felony sexual battery if committed by an adult. He was placed in the Resolute Treatment Facility (Resolute), an inpatient program for sexually maladaptive youth, and after eight months successfully completed treatment there. Then in January 2012, he was moved to the Jackson County Juvenile Home (Group Home).
In February 2012, the trial court held a hearing to determine whether to place N.L. on the sex offender registry. N.L. was represented by counsel. The State introduced Resolute's Risk Evaluation report, indicating N.L. had a “moderate level of risk to reoffend,” which would be reduced if he successfully transitioned into the group home, was involved in school activities, developed positive peer relationships, and participated in family therapy.
The co-authors of the Risk Evaluation report also testified at the registry hearing. First, Resolute's Clinical Director explained that the ERASOR 1 quantified N.L.'s “moderate” risk of sexual recidivism as four to six percent—reduced from his ten percent risk on that same instrument before treatment began, and well below the average recidivism rate of six to twelve percent for “any kid getting treatment for sexually maladaptive behavior.” In the Director's experience, registration is typically only required for juveniles with a projected recidivism rate of 15 percent or more. The Director explained that N.L. was “at a really decreased risk” that could continue to fall still further with continued treatment. And in turn, Resolute's Clinical Therapist testified that N.L. had successfully completed treatment at Resolute, and would continue treatment three times per week for another six to nine months.
Additionally, the Group Home's Assistant Program Director testified that N.L. was successfully transitioning into the group home, involved in school activities, developing positive peer relationships, and participating in family therapy—all the steps the Risk Evaluation report said would reduce N.L.'s risk of reoffending.
At the conclusion of the February hearing, N.L.'s counsel argued in opposition to placing him on the registry. The trial court did not decide whether to require N.L. to register, and instead announced it would “take the Registry matter under advisement until” a subsequent review hearing. But the next review hearing, held in late March, apparently did not address the pending registry decision—there is no such indication in the “Review Hearing Update” filed that date, nor did N.L.'s Notice of Appeal request a transcript of that hearing.
The only other hearing thereafter was held in late May 2012. At that hearing, the only testimony was the victim's mother's request that N.L. be ordered to register. There was no updated evidence of N.L.'s likelihood to reoffend, nor further argument on that point. And this time, unlike the February hearing, N.L. was not represented by his attorney. At the conclusion of the May hearing, while reading the standard terms of probation to N.L., the court ordered N.L. to register. It did not make any written or oral findings of whether clear and convincing evidence supported that N.L. was likely to repeat a sex offense.
N.L. appealed, arguing there was insufficient evidence that he was likely to repeat a sex offense. The Court of Appeals affirmed the registration order in an unpublished decision, finding that N.L.'s “moderate” risk of reoffending supported registration. N.L. v. State, No. 47A01–1205–JV–245, 2012 WL 5899237 (Ind.Ct.App. Nov. 26, 2012). The Court of Appeals also found sufficient evidence to support registration, based on information gathered during N.L.'s treatment and presented during previous informal review hearings: (1) N.L.'s adoptive mother may not be able to properly supervise him upon his release; (2) N.L. viewed pornography twice while on a home visit during treatment at Resolute; and (3) N.L. had some behavior problems while at the Group Home, though the record does not reflect whether the problems were sexual in nature. The record also does not indicate that any information from the informal review hearings was introduced into evidence at either the February or May 2012 hearing.
Whether the trial court's registration order meets the requirements of the Sex Offender Registration Act is a matter of statutory interpretation. Statutory interpretation presents a pure question of law we review de novo. Nicoson v. State, 938 N.E.2d 660, 663 (Ind.2010). Our primary goal in interpreting any statute is to effectuate legislative intent. Walczak v. Labor Works–Ft. Wayne LLC, 983 N.E.2d 1146, 1154 (Ind.2013). “If a statute is clear and unambiguous, courts do not apply any rules of construction other than giving effect to the plain and ordinary meaning of the language.” Sloan v. State, 947 N.E.2d 917, 922 (Ind.2011).
In the wake of a convicted sex offender molesting and murdering ten-year-old Zachary Snider, the Indiana General Assembly passed the Sex Offender Registration Act, known as “Zachary's Law.” Act of March 2, 1994, Pub.L. No. 11–1994; Wallace v. State, 905 N.E.2d 371, 374–75 & n. 4 (Ind.2009). The Act requires sex offenders residing within Indiana to register with local law enforcement and have their photograph taken each year, among many other requirements. Ind.Code § 11–8–8–7(b). This information is then published on the searchable sex offender registry website. I.C. § 11–8–8–7(i). One goal of the Act is “to give the community notification necessary to protect its children from sex offenders.” Wallace, 905 N.E.2d at 383. But registration also undoubtedly “promote[s] community condemnation of the offender,” id. at 382 (internal quotation omitted), and subjects “offenders to ‘vigilante justice’ which may include lost employmentopportunities, housing discrimination, threats, and violence,” id. at 380. Still, courts generally hold that “[t]he purpose and the principal effect of notification are to inform the public for its own safety, ... and the [offender's] attendant humiliation is but a collateral consequence of a valid regulation.” Smith v. Doe, 538 U.S. 84, 99, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003); accord, e.g., Vickery v. State, 932 N.E.2d 678, 682 (Ind.Ct.App.2010) (quoting Smith ).
Yet both the goals and practical effects of sex-offender registration are in tension with the juvenile justice system's policy of treating juvenile delinquents “as persons in need of care, protection, treatment, and rehabilitation.” I.C. § 31–10–2–1(5). “[T]he State's primary interest [is] rehabilitation, rather than the punishment of juvenile delinquents.” J.C.C. v. State, 897 N.E.2d 931, 935 (Ind.2008). For children, the effect of registration is particularly harsh because while some juvenile court records are confidential, I.C. § 31–39–1–2, registration reveals their delinquent acts to the world and exposes them “to [the] profound humiliation and community-wide ostracism” that registration entails. Wallace, 905 N.E.2d at 380. Indeed, requiring juveniles to register “may particularly hamper the[ir] rehabilitation ... because the public stigma and rejection they suffer will prevent them from developing normal social and interpersonal skills—the lack of [which] ha[s] been found to contribute to future sexual offenses.” Michele L. Earl–Hubbard, The Child Sex Offender Registration Laws: The Punishment, Liberty Deprivation, and Unintended Results Associated with the Scarlet Letter Laws of the 1990s, 90 Nw. U.L. Rev. 788, 855–56 (1996). The stakes of juvenile sex-offender registration, then, are significantly different than where adult offenders are involved.
The Sex Offender Registration Act implicitly recognizes, and attempts to balance, the tension between registration's harsh effects and the juvenile system's rehabilitative aims. Unlike adult sex offenders, who must register “without regard to whether the individual poses any particular future risk,” Wallace, 905 N.E.2d at 384, placing a child on the registry requires an individual assessment of whether that child is likely to repeat a sex offense—specifically, that the child:
(A) is at least fourteen (14) years of age;
(B) is on probation, is on parole, is discharged from a facility by the department of correction, is discharged from a secure private facility (as defined in IC 31–9–2–115), or is discharged from a juvenile detention facility as a result of...
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