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Indiana Law Review
Volume 48 2015 Number 4

A LOOK BACK: DEVELOPING INDIANA LAW
POST-BENCH REFLECTIONS OF AN

INDIANA SUPREME COURT JUSTICE

SELECTED DEVELOPMENTS IN INDIANA
JUVENILE JUSTICE LAW

(1993-2012)

FRANK SULLIVAN, JR.*,**

As a Justice of the Indiana Supreme Court (“the Court”) for almost nineteen
years (from late-1993 until mid-2012), I participated in the adjudication of many
cases involving troubled children and children in trouble.1  During this period of
time, the Court, under the leadership of Chief Justice Randall T. Shepard, also
devoted considerable effort to improving the administration of juvenile justice
in Indiana and I worked on many of those projects.  In this Article, I will describe
some selected developments in both the adjudication and administration of
juvenile justice in Indiana during this timeframe.  I will not attempt to try to
cover everything, but instead will identify and detail several major tensions that

* Professor of Practice, Indiana University Robert H. McKinney School of Law.  Justice,
Indiana Supreme Court (1993-2012).  A.B., 1972, Dartmouth College; J.D., 1982, Indiana
University Maurer School of Law; LL.M., 2001, University of Virginia School of Law.  

** This Article is dedicated to Cheryl G. Sullivan who, as Secretary of the Indiana Family
and Social Services Administration from mid-1993 through 1996 and again from late-2003 through
2004, devoted herself and the agency she headed to improving the lives of troubled children and
children in trouble.  She is now CEO of the American Academy of Nursing, Washington, D.C.

This Article is adapted from versions of remarks delivered on many occasions over the last two
decades, notably to attorneys employed by the Indiana Department of Child Services, Indianapolis,
Indiana, March 30, 2012; at the Annual Meeting for Indiana Juvenile Court Judges, Nashville,
Indiana, June 19, 2003; at Dartmouth College’s Senior Symposium, Hanover, New Hampshire,
April 7, 2000; and Lectures on multiple occasions for Professor Michael’s Seminar on Children and
the Law in Modern America, Indiana University Maurer School of Law, Bloomington, Indiana. 
I deeply appreciate both the hospitality and constructive feedback I received on all of these
occasions.

1. I have used the expression “troubled children and children in trouble” to refer collectively
to abused, neglected, and delinquent children for many years—at least since a speech on January
26, 1999.  In the Winter 2008 volume of the Juvenile & Family Court Journal, Ann Reyes Robbins
published an article with that expression as its title.  At the outset, she thanks Judge Charles Pratt,
a leading Indiana juvenile court judge, “for providing the inspiration for the title.”  Perhaps Judge
Pratt heard the expression from me and passed it on to her.  Or perhaps I first heard it from him.

http://dx.doi.org/10.18060/4806.0049



1542 INDIANA LAW REVIEW [Vol. 48:1541

exist within the juvenile justice system as a result of many conflicting political,
substantive, and fiscal philosophies about the way in which our society should
deal with troubled children, children in trouble, and their families.  

I ask the reader to appreciate that this Article contains some highly personal
reflections.  It is not an argument but neither is it entirely objective.

I. INTRODUCTION

A. The Role and Jurisdiction of the Juvenile Justice System
How should society as a whole deal with child abuse or neglect or with

juvenile delinquency?  What should society do, for example, when a father
punishes his nine-year-old child by holding the child’s hand over a burning
flame?  When children are found dirty and suffering from rat and insect bites in
a filthy home?  When a child is born addicted to cocaine or with fetal alcohol
syndrome?  Or when a young child commits an act that would be a serious felony
if committed by an adult?

Society could deal with these situations in several ways.  Society could react
by leaving these matters to the child’s extended family—or perhaps the family’s
neighbors, or church, or a local charity.  Society could also react by turning these
matters over to government administrators.  Instead, American society has
reacted by turning these matters over to the courts.  In America, children thought
to be abused, and neglected, or delinquent are brought to court for protection,
care, treatment—or punishment.2  We call this the “juvenile justice system” and
these courts “juvenile courts.”3

In order to discuss the juvenile justice system, it is important from the outset
to sketch the contours of juvenile court jurisdiction:  (1) child abuse and neglect
cases (called “CHINs” cases); (3) delinquency cases; and (3) termination of
parental rights cases.

1. Abuse and Neglect Cases.—In Indiana, a juvenile court acquires
jurisdiction over a child abuse or neglect case when the Indiana Department of
Child Services (“DCS”) alleges that a child is “a child in need of services”—a
CHINs.4  A child is a CHINs if (1) it is before the child becomes eighteen years
old; and (2) the child needs care, treatment, or rehabilitation that the child “(a)
is not receiving and (b) is unlikely to be provided or accepted without the
coercive intervention of the court”; and (3) one or more of specified incidents of
neglect or abuse, summarized at the margin, have occurred.5  Unless the

2. See IND. CODE § 31-30 (2014).
3. Id.
4. Id.
5. Indiana Code sections 31-34-1-1 to -14 provide that a child is a child in need of services

(CHINs) “if (1) before the child becomes 18-years-old; and (2) the child needs care, treatment, or
rehabilitation that the child (a) is not receiving and (b) is unlikely to be provided or accepted
without the coercive intervention of the court”; and (3) one or more of the following conditions are
met:  (a) the child’s physical or mental condition is seriously impaired or seriously endangered as
a result of the inability, refusal, or neglect of the child’s parent, guardian, or custodian to supply



2015] A LOOK BACK 1543

allegation is admitted, the juvenile court holds a “fact-finding” hearing.6  A
finding by a juvenile court that a child is a CHINs must be based upon a
preponderance of the evidence.7  If the court finds that a child is a CHINs, the
court holds a “dispositional” hearing to consider alternatives for the care,
treatment, rehabilitation, or placement of the child.8

2.  Delinquency Cases.—A juvenile court acquires jurisdiction over a
delinquency case when a County prosecuting attorney alleges that a child has
committed a “delinquent act,” that is, to have committed, before becoming
eighteen years of age, an act that would be a crime if committed by an adult.9 
Unless the allegation is admitted, the juvenile court holds a “fact-finding”
hearing.10  A finding by a juvenile court that a child committed a delinquent act

the child with necessary food, clothing, shelter, medical care, education, or supervision; (b) the
child’s physical or mental health is seriously endangered due to injury by the act or omission of the
child’s parent, guardian, or custodian; (c) the child is the victim of a sex offense under law specified
in Indiana Code section 31-34-1-3; (d) the child’s parent, guardian, or custodian allows the child
to participate in an obscene performance (as defined by law specified in Indiana Code section 31-
34-1-4); (e) the child’s parent, guardian, or custodian allows the child to commit a sex offense
prohibited by law specified in Indiana Code section 31-34-1-5; (f) the child substantially endangers
the child’s own health or the health of another- individual; (g) the child’s parent, guardian, or
custodian fails to participate in a disciplinary proceeding in connection with the student’s improper
behavior, as provided for by law specified in Indiana Code section 31-34-1-7, if the behavior of the
student has been repeatedly disruptive in the school; (h) the child is a missing child (as defined by
law specified in Indiana Code section 31-34-1-8); or (i) subject to certain exceptions specified in
Indiana Code sections 31-34-1-12 and 13, either the child is born with fetal alcohol syndrome or
any amount, including a trace amount, of a controlled substance or a legend drug in the child’s body
or the child has an injury, has abnormal physical or psychological development, or is at a
substantial risk of a life threatening condition that arises or is substantially aggravated because the
child’s mother used alcohol, a controlled substance, or a legend drug during pregnancy.  A child
with a disability is also a CHINS if the child is deprived either of nutrition that is necessary to
sustain life or of medical or surgical intervention that is necessary to remedy or ameliorate a life
threatening medical condition if the nutrition or medical or surgical intervention is generally
provided to similarly situated children with or without disabilities.  If a parent, guardian, or
custodian fails to provide specific medical treatment for a child because of the legitimate and
genuine practice of the religious beliefs of the parent, guardian, or custodian, a rebuttable
presumption arises that the child is not a CHINS because of the failure.  However, this presumption
does not prevent a juvenile court from ordering, when the health of a child requires, medical
services from a physician licensed to practice medicine in Indiana, or apply to situations in which
the life or health of a child is in serious danger.  IND. CODE §§ 31-34-1-1 to -14 (2014).

6. IND. CODE § 31-34-11-1 (2014).
7. IND. CODE § 31-34-12-3 (2014).
8. IND. CODE § 31-34-10-9 (2014).
9. IND. CODE §§ 31-37-1-1 & 2 (2014).  IND. CODE §§ 31-37-2-1 to -7 set forth additional

circumstances under which a child may be deemed delinquent and, therefore, within the jurisdiction
of the court upon a proper filing.

10. IND. CODE § 31-37-13-1 (2014).



1544 INDIANA LAW REVIEW [Vol. 48:1541

must be based upon proof beyond a reasonable doubt.11  If the court finds that a
child has committed a delinquent act, the juvenile court holds a “dispositional”
hearing to consider alternatives for the care, treatment, rehabilitation, or
placement of the child.12

3.  Termination of Parental Rights Cases.—The DCS may petition the
juvenile court to terminate the parent-child relationship involving a CHINs or a
delinquent child under the following conditions.13  First, one of three conditions
exist:  (1) the child has been removed from the parent for at least six months
under a dispositional decree; (2) a court has entered a finding that reasonable
efforts for family preservation or reunification are not required; or (3) the child
has been removed from the parent and has been under the supervision of the DCS
for at least fifteen months of the most recent twenty-two months.14  Second,
either the child has on two separate occasions been adjudicated a CHINs or there
is a reasonable possibility that either the conditions that resulted in the child’s
removal or the reasons for placement outside the parents’ home will not be
remedied; or the continuation of the parent-child relationship poses a threat to the
well-being of the child.15  Third, termination is in the best interests of the child.16 
The fourth and final condition is that there is a satisfactory plan for the care and
treatment of the child.17  If the court finds that these conditions are met, the court
terminates the parent-child relationship.18  A finding in a proceeding to terminate
parental rights must be based upon clear and convincing evidence.19

B.  The Similarity Between CHINS and Delinquents
The foregoing description of the jurisdiction of the juvenile

courts—specifically, the highly similar terminology and procedure for
adjudicating both CHINs and delinquency cases—suggests an important
realization about the juvenile justice system:  the high degree of similarity
between CHINs and delinquents.20  There is, in other words, a very high degree
of overlap between the type of children whom prosecutors bring into the juvenile
justice system and the type of children brought there by child protection
caseworkers.21  Children arrested and charged with being delinquent often turn
out to be children who were abused or neglected when they were younger but
were never identified by the child protection system.  Before the changes to

11. IND. CODE § 31-34-12-5 (2014).
12. IND. CODE § 31-37-18-1 (2014).
13. IND. CODE § 31-35-2-4(a)(1) (2014).  A petition may also be filed by a child’s court

appointed special advocate or a child’s guardian ad litem.  Id. § 31-35-2-4(a)(2) and (3).
14. Id. § 31-35-2-4(b)(2)(A).
15. Id. § 31-35-2-4(b)(2)(B).
16. Id. § 31-35-2-4(b)(2)(C).
17. Id. § 31-35-2-4(b)(2)(D).
18. IND. CODE § 31-35-2-8(a) (2014).
19. IND. CODE § 31-34-12-2 (2014).
20. See generally IND. CODE § 31-34 (2014); IND. CODE § 31-37 (2014).
21. See generally IND. CODE § 31-34 (2014); IND. CODE § 31-37 (2014).



2015] A LOOK BACK 1545

Indiana juvenile law in 2008, the court was integrally involved in both, but the
DCS (and its predecessor agencies) only in the one.  The 2008 statutory changes
were designed in part to address the need for coordination between our criminal
law enforcement system and our social services system.22

In 2015, the legislature took another significant step in recognizing the
similarity between CHINs and delinquents with the enactment of Public Law 66-
2015.23  The new statute recognizes for the first time a category of child defined
as a “dual status child.”24  A dual status child, generally speaking, is one who
meets or could meet the laws definition of both a CHINs and delinquent child.25 
Under the new law, upon a determination by a juvenile court that a child is a dual
status child, a panoply of actions are triggered to assess the child’s “best interest
and well-being,”26 and make recommendations to the court with respect thereto.27 

22. See infra Part II.C.3.
23. H. 1196, 119th Gen. Assemb., 1st Reg. Sess. (Ind. 2015).
24. IND. CODE § 31-41-1-2 (2015).
25. IND. CODE § 31-41-1-2 (2015), provides in full:
“Dual status child” means:

(1) a child who is alleged to be or is presently adjudicated to be a child in need of
services under IC 31-34-10 or IC 31-34-11 and is alleged to be or is presently
adjudicated to be a delinquent child under IC 31-37-12 or IC 31-37-13;

(2) a child who is presently named in an informal adjustment under IC 31-34-8 and
who is adjudicated a delinquent child under IC 31-37-12 or IC 31-37-13;

(3) a child who is presently named in an informal adjustment under IC 31-34-8 and
who is adjudicated to be a child in need of services under IC 31-34-10 or IC 31-34-11;

(4) a child who:
(A) has been previously adjudicated to be a child in need of services under IC

31-34-10 or IC 31-34-11; or
(B) was a participant in a program of informal adjustment under IC 31-34-8; 
and who was under a wardship that had been terminated or was in a program

of informal adjustment that had concluded before the current delinquency petition;
(5) a child who was:

(A) previously adjudicated to be a delinquent child under IC 31-37-12 or IC
31-37-13 that was closed; and

(B) a participant in a program of informal adjustment under IC 31-37-9 which
was conducted prior to a child in need of services proceeding; and
(6) a child:

(A) who is eligible for release from commitment of the department of
correction; 

(B) whose parent, guardian, or custodian:
(i) cannot be located; or
(ii) is unwilling to take custody of the child; and

(C) for whom the department of correction is requesting a modification of the
dispositional decree under IC 31-30-2-4.

26. Id. § 31-41-1-2-5.
27. Id. § 31-41-1-2-6(2).  



1546 INDIANA LAW REVIEW [Vol. 48:1541

The court is authorized to determine, in respect of any such dual status child,
whether the Indiana Department of Child Services or the probation department
of the court will be the “lead agency” in supervising the child’s care, treatment,
or rehabilitation.28  

This new statutory regime is a most impressive development in addressing
the need for coordination between our criminal law enforcement system and our
social services system.  All involved in its passage should take great pride in this
achievement.29

C.  Separation of Powers and Juvenile Court
Our judicial system was established by our Constitution as a separate but

equal branch of government to adjudicate legal disputes.30  This principle of
separation of powers is very important to judges because it allocates to the other
two branches of government—and not to the courts—the responsibilities of
making and administering our laws.31  Judges resolve disputes, they don’t make
or administer laws.32

However, the powers and duties of the juvenile court differ from the
traditional concept of separation of powers.  The juvenile judge’s responsibilities
are to enforce the legal obligations of children and their parents and to assure due
process.  But, juvenile judges also provide children within the juvenile justice
system with care, treatment, rehabilitation, and protection.  In both delinquency
and CHINS cases, judges order specific forms of treatment and care and monitor
the progress of both children and parents in treatment.33  These responsibilities
are ones we ordinarily ascribe to the executive or administrative branches of
government, not the judiciary.34 

A rationale for separation of powers is avoiding consolidation of too much
governmental authority in any one branch.35  A secondary rationale is recognizing
respective spheres of expertise.36  Are these principles that animate separation of
powers undermined when juvenile judges are given, in addition to their
traditional adjudicatory responsibilities, such administrative duties as ensuring
care and treatment, utilizing diversionary programs, running detention centers,
and strengthening families?  This Article does not purport to answer that question

28. IND. CODE § 31-41-3-1 (2015).
29. I thank Judge Charles Pratt for calling this legislation to my attention.
30. See generally U.S. CONST. art. III, which vests all judicial powers with the courts.
31. Id. 
32. See generally U.S. CONST. art. I, which vests all legislative powers with Congress. 
33. See generally IND. CODE § 31-34 (2014); IND. CODE § 31-37 (2014).
34. See generally U.S. CONST. art. II, which vests executive powers in the president. 
35. T.J. Halstead, The Separation of Powers Doctrine:  An Overview of Its Rationale and

Application, CRS REPORT FOR CONGRESS (1999), available at http://congressionalresearch.com/
RL30249/document.php?study=THE+SEPARATION+OF+POWERS+DOCTRINE+AN+OVE
RVIEW+OF+ITS+RATIONALE+AND+APPLICATION, archived at http://perma.cc/8N6R-
LKMK.

36. Id. 



2015] A LOOK BACK 1547

but it is an important one to keep in mind as I explore the tensions facing the
juvenile justice system today.

II.  TENSIONS IN JUVENILE JUSTICE
The human tragedies reflected in CHINs and delinquency cases make

juvenile justice work enormously challenging.  In addition to the human tragedies
that are so emotionally rending, there are other challenges—challenges more
substantive and less apparent.  Indeed, the very operation of the juvenile justice
system is poised amidst tension:  amidst conflicting political, substantive, and
fiscal philosophies about the way in which our society should deal with troubled
children, children in trouble, and their families.  This is indeterminacy at its apex: 
in none of these areas of tension is any option clearly the superior of its opposite. 

I am going to focus on the following five areas of tension facing the juvenile
justice system today that contribute to juvenile justice work being so difficult:

• The tension between the authority of the court—primarily its power
and discretion to manage and dispose of delinquency cases—and the
constitutional and statutory rights enjoyed by the child.37

• The tension between the responsibility of the state to protect
children and the rights of parents to raise their children without state
interference.38

• The tension between the need for child services and their cost.39
• The tension between rehabilitating and punishing youthful

offenders.40
• The tension between the goals of reunification and permanency—

between the goal of reunifying the victim of child abuse or neglect who
has been removed from the home of the child’s biological family and the
goal of finding a permanent loving home for that child.41

A.  The Tension Between the Authority of the Court and
the Rights of the Child

The first tension facing the juvenile justice system today is between the
authority of the court—principally its power and discretion to manage and
dispose of delinquency cases—and the constitutional and statutory rights enjoyed
by the child. 

1.  Parens patriae and the Juvenile Court Movement.—Jurisdiction over
children alleged to be delinquent, abused, or neglected is an integral part of the
policy established by our legislature in the Indiana Juvenile Code for dealing

37. See infra Part II.A.
38. See infra Part II.B.
39. See infra Part II.C.
40. See infra Part II.D.
41. See infra Part II.E.



1548 INDIANA LAW REVIEW [Vol. 48:1541

with the problems of troubled children.42  It is a policy grounded in the
Progressive Movement of the late nineteenth and early twentieth centuries, when
American society rejected treating juvenile law violators no differently from
adult criminals in favor of individualized diagnosis and treatment.43

At the end of the nineteenth century, this country treated children accused of
committing crimes in the same way as adults.44  “They were tried in courts of
general criminal jurisdiction with all the formalities of the criminal law and
constitutional safeguards.  If convicted, they were incarcerated in adult jails and
prisons.”45  There was no distinction between the adult and the child, no special
provision for their separation in confinement pending trial, in the hearing of their
cases, or in their final disposition.46  If guilty, children might share incarceration
with men and women in jail or workhouse.47

This system brought scrutiny from reformers, most notably in Chicago,
who believed that children should not be held as accountable as adult
offenders.48  Rather than subject children to the punitive, adversarial, and
formalized trappings of the adult criminal process, the reformers
envisioned a system that would treat and rehabilitate the child based on
an analysis of the youth’s special circumstances.49

The reformers did not have to look far to identify both a philosophy and a
structure for providing a more humane system for dealing with juvenile crime.50 
Children accused of crimes were treated as adults in the late nineteenth century,
and the doctrine of parens patriae51 was employed to provide both the theoretical
justification and structural mechanism for vigorous state intervention on behalf
of dependent children and neglected children.52

Indiana provides a particularly good example.  In 1889 and 1891, the
Legislature passed the “Board of Children’s Guardians Act,” establishing county

42. See IND. CODE § 31-30-1-1 (2014).
43. See generally Frank Sullivan, Jr., Indiana as a Forerunner in the Juvenile Court

Movement, 30 IND. L. REV. 279 (1997).
44. Id. at 279. 
45. Id. 
46. See generally id. 
47. See generally id. 
48. Id. at 279. 
49. Id. at 279-80. 
50. Id. at 280.
51. Parens patriae literally means “parent of the country” and refers to the traditional role of

the state as sovereign and guardian of persons under legal disability.  BLACK’S LAW DICTIONARY
1114 (6th ed. 1990).  Parens patriae originates from the English common law where the King had
a royal prerogative to act as guardian for persons under a legal disability such as infants and those
mentally ill.  In the United States, the parens patriae function belongs with the states.  Id.

52. David S. Tanenhaus, The Evolution of Juvenile Courts in the Early Twentieth Century: 
Beyond the Myth of Immaculate Construction, A CENTURY OF JUVENILE JUSTICE 42 (Margaret K.
Rosenheim et al. eds., 2002).



2015] A LOOK BACK 1549

boards charged with “the care and supervision of neglected and dependent
children under fifteen years of age.”53  Under the act, the board could petition a
court for the custody of any child abandoned, neglected, or cruelly treated by his
or her parents.54  Shortly thereafter, a woman and her husband appealed an
Indianapolis court’s award of the custody of her three children to the local
board.55  Was it constitutional for the government to take children away from
their parents?  In saying that it was under these circumstances, the Indiana
Supreme Court invoked the doctrine of parens patriae:  

[O]ur constitutions, and our laws enacted under it, sanction and confirm
the great principle of the sovereign’s guardianship of the children within
the dominions of the sovereign. . . . [T]he equally great principle that
natural rights vest in parents the custody and control of their children is
confirmed and enforced.  This high and strong natural right yields only
when the welfare of society or the children comes into conflict with it;
but where there is such conflict the supreme right of guardianship asserts
itself for the protection of society and the promotion of the welfare of the
wards of the commonwealth.56

Employing the parens patriae philosophy to deal with both juvenile offender
as well as the dependent and neglected child, the Illinois Legislature passed the
first juvenile court act in 1899.57  The first judge of the Chicago juvenile court,
Richard S. Tuthill, described the “sole purpose” of his new court in terms of
parens patriae:  “[T]o give children what all children need, parental care.”58

“Under the Illinois statute, which would become a model for the nation—a
model widely used even today—the juvenile court judge was authorized to hear
any case concerning a dependent child or a neglected child”59 and, upon finding
that the best interest of the child would be served by making the child a public
ward, the court was authorized to employ a variety of dispositional alternatives,
including placements in foster homes and institutions.60  Similarly, the juvenile
court was authorized to hear any case involving a child alleged to have

53. Board of Children’s Guardians Act, ch. 125, § 2, 1889 Ind. Acts 261, 261-62
(superseded).

54. Id. at 262. 
55. See Van Walters v. Bd. of Children’s Guardians of Marion Cnty., 32 N.E. 568 (Ind.

1892).
56. Id. at 569; see also Addison M. Beavers, The Philosophy of Children’s Court

Proceedings, FIRST ANNUAL INSTITUTE OF THE JUVENILE AND CRIMINAL COURT JUDGES OF INDIANA
1 (1960).

57. Illinois Juvenile Court Act, 1899 Ill. Laws 131 (repealed 1965).
58. Richard S. Tuthill, The Juvenile Court, INDIANA BULLETIN OF CHARITIES AND

CORRECTION 48, 52 (1904); see also Julian W. Mack, The Juvenile Court, 23 HARV. L. REV. 104,
106 (1909); Tanenhaus, supra note 52, at 42.

59. Sullivan, supra note 43, at 281 (citing Illinois Juvenile Court Act § 7, 1899 Ill. Laws 131,
133 (repealed 1965) (current version at 705 ILL. COMP. STAT. 405/3-9 (1992)).

60. Illinois Juvenile Court Act § 8, 1899 Ill. Laws 131, 133 (repealed 1965).

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1550 INDIANA LAW REVIEW [Vol. 48:1541

committed a crime61 and, upon finding that the child was guilty of the offense,
the court was authorized to pursue various alternatives, “including returning the
child to his or her parents, placing the child on probation, or placing the child in
foster care or an institution.”62

Note two things:  the segregation of cases of children alleged to be
delinquent, abused, or neglected into a specialized court; and the enormous
degree of discretion and flexibility of the judge in handling the cases and
fashioning the remedies.  “Parens patriae philosophy mandated that the juvenile
court provide children with care, custody, and discipline approximating as nearly
as possible, that which should be given by their parents”; and “that juvenile
offenders should not be treated as criminals, but rather as children in need of aid,
encouragement, and guidance.”63  As such, it became fundamental legal doctrine
that juvenile courts were not criminal but civil in their nature, precisely because
their purpose was not to punish but to treat and rehabilitate the child.64  As one
Indiana juvenile court judge would say some years later:  

We are a Court for children, and children need no constitutional
guarantees to protect them in the Courts for children.  The Courts are
given a great deal of power under the Juvenile Court law, which should
always be used for the children and never against them.65

2.  In re Gault and the Criminal Procedure Revolution.—Thus, juvenile
courts took hold in virtually every American jurisdiction, dealing with children
in this highly paternalistic way.66  But is it true, as the Indiana judge I just quoted
said, that “children need no constitutional guarantees to protect them”67 in
juvenile court?  

Juvenile courts were challenged throughout the country during the first
quarter of the twentieth century as depriving children of liberty without due
process of law, including specifically as violating the right to trial by jury and
denying the right to appeal.68  But these challenges were unsuccessful.69

61. Illinois Juvenile Court Act § 9, 1899 Ill. Laws 131, 133 (repealed 1965) (current version
at 705 ILL. COMP. STAT. 405/2-1 (1992 & Supp. 1996)).

62. Id. (citing Illinois Juvenile Court Act § 9, 1899 Ill. Laws 131, 133 (repealed 1965)
(current version at 705 ILL. COMP. STAT. 405/2-1 (1992 & Supp. 1996))).

63. Sullivan, supra note 43, at 282; see Illinois Juvenile Court Act § 21, 1899 Ill. Laws 131,
137 (repealed 1965) (codified as amended in 705 ILL. COMP. STAT. 405/2-1 (1992)) (“This act shall
be liberally construed, to the end that its purpose may be carried out, to-wit:  That the care, custody
and discipline of a child shall approximate as nearly as may be that which should be given by its
parents . . . .”).

64. See In re Gault, 387 U.S. 1, 14-18 (1967).
65. Beavers, supra note 56.
66. Id. 
67. Id.
68. CHRISTOPHER P. MANFREDI, THE SUPREME COURT AND JUVENILE JUSTICE 32 (1998)

(citing Solon L. Perrin, The Future of the Children’s Court, J. A.B.A. 768 (1922)).
69. In re Gault, 387 U.S. at 14-15; HERBERT H. LOU, JUVENILE COURTS IN THE UNITED



2015] A LOOK BACK 1551

However, by the middle of the twentieth century, the proposition that
constitutional rights were unnecessary in juvenile proceedings was being given
careful scrutiny.70  In 1966, the United States Supreme Court rendered the first
of a series of landmark decisions holding that however noble the philosophy of
juvenile courts might be, children facing charges still enjoyed the constitutional
rights of adults accused of crime.71

The most sweeping of these cases came from Arizona and involved a fifteen-
year-old boy named Gerald Gault who had been committed as a juvenile
delinquent to a “state industrial school” for making what would be referred to
today as a sexually harassing telephone call to a female neighbor; Gerald was
also on probation for stealing a wallet from a woman’s purse at the time.72  The
Supreme Court found that the Arizona juvenile court system unconstitutionally
denied Gerald the following rights:  notice of the charges; right to counsel; right
to confrontation and cross-examination; privilege against self-examination; right
to a transcript of the proceedings; and right to appellate review.73

The Supreme Court discussed at some length the philosophy of the juvenile
court, including parens patriae, and expressed considerable skepticism about it:

[T]he highest motives and most enlightened impulses lead to a peculiar
system for juveniles . . . .  The constitutional and theoretical basis for
this peculiar system is—to say the least—debatable.  And in practice, .
. . the results have not been entirely satisfactory.  Juvenile court history
has again demonstrated that unbridled discretion, however benevolently
motivated, is frequently a poor substitute for principle and procedure.74

STATES 19 (1927); Julian W. Mack, The Juvenile Court, 23 HARV. L. REV. 104, 106 (1909). 
Juvenile courts were unsuccessfully challenged in other states during this era as depriving children
of liberty without due process of law:  Ex parte Sharp, 96 P. 563, 564 (Idaho 1908); Marlow v.
Commonwealth, 133 S.W. 1137, 1141 (Ky. 1911); State ex rel. Matacia v. Buckner, 254 S.W. 179,
180 (Mo. 1923); violating the right to trial by jury:  Ex parte Januszewski, 196 F. 123, 129-30
(C.C.S.D. Ohio 1911); Ex parte Daedler, 228 P. 467, 469-71 (Cal. 1924); Marlow, 133 S.W. at
1141; Matacia, 254 S.W. at 180; Commonwealth v. Fisher, 62 A. 198, 200 (Pa. 1905); Mill v.
Brown, 88 P. 609, 612 (Utah 1907); and denying the right of appeal:  Januszewski, 196 F. at 131;
Marlow, 133 S.W. at 1141.  The enactment of juvenile court statutes have also survived attacks
against them as impermissibly creating a new court:  Lindsay v. Lindsay, 100 N.E. 892, 894 (Ill.
1913); Marlow, 133 S.W. at 1138-39; Ex parte Powell, 120 P. 1022, 1023-26 (Okla. Crim. App.
1912); Fisher, 62 A. at 199; constituting class legislation:  Robison v. Wayne Circuit Judges, 115
N.W. 682, 685 (Mich. 1908) (but striking the act for failure to provide a twelve-person jury);
Fisher, 62 A. at 199; constituting local or special laws:  Cinque v. Boyd, 121 A. 678, 685 (Conn.
1923); Ex parte Loving, 77 S.W. 508, 511-14 (Mo. 1903); Mill, 88 P. at 611; embracing more than
one subject:  Robison, 115 N.W. at 684; Fisher, 62 A. at 198; and conferring executive powers on
judicial officers:  Nicholl v. Koster, 108 P. 302, 305 (Cal. 1910).  

70. See In re Gault, 387 U.S. 1 (1967), Kent v. United States, 383 U.S. 541 (1966).
71. Kent, 383 U.S. at 541.
72. In re Gault, 387 U.S. at 1.
73. Id.
74. Id. at 17-18.  



1552 INDIANA LAW REVIEW [Vol. 48:1541

It is claimed that juveniles obtain benefits from the special procedures
applicable to them which more than offset the disadvantages of denial of
the substance of normal due process . . . .  [T]he observance of due
process standards, intelligently and not ruthlessly administered, will not
compel the States to abandon or displace any of the substantive benefits
of the juvenile process.75

Gault was decided in the midst of, and was indeed an integral part of, the
Warren Court’s criminal procedure revolution:  the Supreme Court’s application
to the states of due process protections theretofore applicable only to the federal
government, if recognized at all.76  Amid uncertainty over the precise extent to
which the new constitutional order would be applied in the juvenile setting, the
Supreme Court proceeded case-by-case.77  On the one hand, the Supreme Court
held that when juveniles are charged with an act that would constitute a crime if
committed by an adult, the charges must meet the adult standard of
proof—“beyond a reasonable doubt”—and not the less protective civil standard
of “preponderance of the evidence.”78  On the other hand, the Supreme Court
held that the right to a trial by jury does not apply to juvenile delinquency
proceedings.79

In the end, the Supreme Court’s prediction in Gault that requiring
constitutional due process would not disrupt the benefits of juvenile courts
proved to be correct.  Despite the mandate of constitutional protections for
accused juveniles, the juvenile court survives to this day.  Now a blend of
paternalism and due process, the juvenile court still enjoys a substantial degree
of discretion in fashioning remedies for children found to be delinquent, abused,
or neglected, though that discretion is guided by the precepts of due process.

3.  Indiana Developments:  Lewis et seq.—Closely following the Warren
Court’s expansion of the rights of accused juveniles and adults was the Indiana
Supreme Court’s remarkable decision, Lewis v. State,80 in 1972.  In it, the Court
went beyond protections afforded by the Warren Court to promulgate an
“interested adult rule” pursuant to which an adult interested in the juvenile’s
welfare, generally a parent, must be informed of the child’s rights, have an
opportunity to consult privately with the child, and be present during any

75. Id. at 21.
76. Sara S. Beale, You’ve Come a Long Way, Baby:  Two Waves of Juvenile Justice Reforms

as Seen From Jena, Louisiana, 44 HARV. C.R.-C.L.  L. REV. 511, 516-17 (2009).  
77. Id. at 517-18.
78. In re Winship, 397 U.S. 358 (1970).
79. McKeiver v. Pennsylvania, 403 U.S. 528 (1971).  Of historical note, when the Indiana

Legislature first passed a bill creating a juvenile court in Indianapolis on February 25, 1903, the bill
was vetoed by Governor Winfield T. Durbin on the advice of Attorney General Charles W. Miller
that the bill was unconstitutional, because it did not provide sufficient legal protection for the
children who would be brought into juvenile court, including the right to trial by jury.  The
Legislature promptly rectified these deficiencies and Governor Durbin signed a revised bill into law
on March 10.  Sullivan, supra note 43, at 293-95.

80. 288 N.E.2d 138 (Ind. 1972).



2015] A LOOK BACK 1553

interrogation.81 
Lewis was an appeal from a conviction for a murder in Fort Wayne.82  Police

officers asked Douglas Timothy Lewis, a seventeen-year-old high school
sophomore, to accompany them to the station because his name had come up “in
certain investigations” they were conducting.83  During the ride, the officers
asked Lewis where his mother was, and he said he did not know where she
worked or how to reach her.84

One of the police officers later testified that “we told [Lewis] that we would
like to talk to him in reference to several investigations, but before we did this,
we had to, we had a formality that we had to go through as to his rights.”85  The
police officer had Lewis read the police department’s standard Miranda rights
and waiver form.86  He said he could read and that he understood it; the police
officer also read it over again out loud.87  Lewis signed beneath the statement of
rights and again beneath the statement of waiver; his confession was completed
within an hour.88

Lewis’s appeal of his subsequent conviction challenged the admissibility of
the confession.89  The Indiana Supreme Court’s opinion was written by Justice
Roger O. DeBruler, one of the longest-serving and most distinguished justices in
the Court’s history.90  Justice DeBruler’s jurisprudence reflects a dual purpose
assigned to criminal procedure:  protection of the rights of the accused and
guidance to law enforcement.  He believed that the police value criminal
procedure rules just as much as do those accused, because criminal procedure
rules give the police clear guidance on how to discharge their sworn duties; that
criminal procedure rules do not constrain the work of law enforcement, they
define it.  In this regard, the Lewis opinion is pure DeBruler:  

The authorities seeking to question a juvenile enter into an area of doubt
and confusion when the child appears to waive his rights to counsel and
against self-incrimination.  They are faced with the possibility of taking

81. The Indiana Supreme Court appears to have led the nation in adopting an interested adult
rule.  Other courts that have done so include:  State in Interest of Dino, 359 So. 2d 586, 594 (La.
1978); Commonwealth v. A Juvenile (No. 1), 449 N.E.2d 654, 657 (1983) (applies absolutely for
children under fourteen; for those fourteen or over State has very heavy burden if no consultation
permitted); In re E.T.C., 449 A.2d 937, 940 (1982).  Contra McIntyre v. State, 526 A.2d 30, 37
(1987) (rejecting the interested adult rule in favor of a totality of circumstances test after extended
discussion of the approach taken in various jurisdictions).

82. Lewis, 288 N.E.2d at 139.
83. Id. 
84. Id.
85. Id.
86. Id. 
87. Id.
88. Id.
89. The juvenile was tried in adult criminal court, not juvenile court.  See infra Part II.D.
90. See Linda C. Gugin & James E. St. Clair, Justices of the Indiana Supreme Court 379

(2010).



1554 INDIANA LAW REVIEW [Vol. 48:1541

a statement from him only to have a court later find that his age and the
surrounding circumstances precluded the child from making a valid
waiver.

. . . .

If the police are placed in a quandary when confronting a juvenile
accused, the juvenile is perhaps in the most serious predicament of his
short life.91

In addition to the rather evident irony of expanded protections for the accused
being in the best interests of law enforcement, DeBruler’s opinion contained a
subtle irony as well.  Remember that just a few years before in Gault, the United
States Supreme Court had found the results of a system of special rules for
juveniles “not entirely satisfactory.”92  But DeBruler grounds the legitimacy of
the interested adult rule in the very history of special rules for juveniles:  “The
concept of establishing different standards for a juvenile is an accepted legal
principle since minors generally hold a subordinate and protected status in our
legal system.”93

The Indiana Supreme Court reversed Lewis’s conviction, holding that a
juvenile’s statement or confession cannot be used against the juvenile at a
subsequent trial or hearing unless both the juvenile and the juvenile’s parents or
guardian were informed of the juvenile’s rights to an attorney, and to remain
silent.94  In addition, the Court said, the juvenile must be given an opportunity to
consult with the juvenile’s parents, guardian, or an attorney representing the
juvenile as to whether or not the juvenile wishes to waive those rights.95  The
juvenile may waive those rights after such consultation the juvenile so chooses,
the Court concluded, “provided of course that there are no elements of coercion,
force or inducement present.”96

The General Assembly reacted by not only codifying Lewis, but providing
additional protections to juveniles beyond those in Lewis by requiring that a
qualifying adult—specifically, a “custodial parent, guardian, custodian, or
guardian ad litem”—join in the juvenile’s waiver.97   The current statute
provides, in relevant part, that any of a juvenile’s rights under the federal or state
constitutions, or under any other law, may be waived only:  

[B]y the child’s custodial parent, guardian, custodian, or guardian ad

91. Lewis, 288 N.E.2d at 141.
92. In re Gault, 387 U.S. 1 (1967).
93. Lewis, 288 N.E.2d at 142.  This was too much for Chief Justice Norman Arterburn and

Justice Richard Givan who argued for the pre-Gault world.  Id. (Arterburn, C.J., dissenting).
94. Id. 
95. Id.
96. Id.
97. Act of 1978, Pub. L. No. 136–1978, § 1, 1978 Ind. Acts 1196, 1232 (codified as amended

at IND. CODE § 31-32-5-1 (2014)).



2015] A LOOK BACK 1555

litem if:  
(A) that person knowingly and voluntarily waives the right;
(B) that person has no interest adverse to the child;
(C) meaningful consultation has occurred between that person and

the child; and
(D) the child knowingly and voluntarily joins with the waiver.98

Taking both federal and state protections into account, there are thus four
requirements that must be satisfied in Indiana before a juvenile’s statements
made during a custodial interrogation can be used in the State’s case-in-chief.99 
First, Miranda and Lewis require that both the juvenile and his or her parent must
be adequately advised of the juvenile’s rights.100  Second, Indiana statute and
Lewis require that the juvenile must be given an opportunity for meaningful
consultation with his or her custodial parent, guardian, custodian, or guardian ad
litem.101  Third, Miranda and Indiana statute require that both the juvenile and
his or her parent must knowingly, intelligently, and voluntarily waive the
juvenile’s rights.102  Finally, federal constitutional law requires that the juvenile’s
statements must be voluntary and not the result of coercive police activity.103

During my tenure on the Court, we were faced with an interesting question
of who qualifies as a “parent” for purposes of the Lewis rule and statute.  In
Stewart v. State,104 the police took seventeen-year-old Alfred Stewart to the
station in connection with a murder investigation.105  There, the police
unsuccessfully attempted to contact Stewart’s mother before locating his
father.106  The father, upon arriving at the station, told police that he was
Stewart’s biological father, but that Stewart did not live with him.107  Father and
son then had all of the consultation and provided all of the waivers required by
the Lewis rule and statute before Stewart signed a confession.108  But, as noted
above, the statute requires consultation with and waiver by a “custodial
parent.”109  Did the father qualify?

98. IND. CODE § 31-32-5-1 (2014).  The statute permits such rights to be waived (1) “by
counsel retained or appointed to represent the child if the child knowingly and voluntarily joins
with the waiver,” and (2) “by the child, without the presence of a custodial parent, guardian, or
guardian ad litem, if:  (A) the child knowingly and voluntarily consents to the waiver; and (B) the
child has been emancipated under IC 31-34-20-6 or IC 31-37-19-27, by virtue of having married,
or in accordance with the laws of another state or jurisdiction.”

99. D.M. v. State, 949 N.E.2d 327, 333 (Ind. 2011).
100. Id.
101. Id.; IND. CODE § 31-32-5-1(2) (2014).
102. D.M., 949 N.E.2d at 333.  
103. Id.
104. 754 N.E.2d 492, 493 (Ind. 2001).  
105. Id.
106. Id.
107. Id.
108. Id.
109. IND. CODE § 31-32-5-1 (2014).



1556 INDIANA LAW REVIEW [Vol. 48:1541

In an opinion authored by Justice Theodore R. Boehm, the Court answered
“no.”110  Although the statute itself did not define “custodial parent,” the Court
was satisfied from definitions used in other statutes that “custodial parent”
should be understood “to mean either a person who has been adjudicated by a
court to have legal custody of the child, or a parent who actually resides with the
unemancipated juvenile.”111

Stewart is particularly interesting for how hard-nosed the Court is about
enforcing the Lewis rule and statute.  First, it categorically dismisses the State’s
claim that the father’s biological relationship to Stewart is enough to satisfy the
statute.112  “This contention plainly reads ‘custodial’ out of the statute,”113 the
opinion practically sneers.  “It seems clear that the statute contemplates
consultation and waiver by a person in the close relationship afforded by either
formal custody or actual residence, in addition to a biological or adoptive
relationship.  Stewart’s father meets neither test.”114

Even more to the point, the Court rejected the State’s “harmless error”
claim.115  Stewart had been convicted after the trial court admitted his
confession.116  The State had quite a bit of circumstantial evidence linking
Stewart to the crime.117  But, the Court said, “the State presented no evidence
directly placing Stewart at the scene.”118  Only the “confession definitively
established Stewart’s role in the commission” of the crime.119  Stewart’s
conviction was reversed.120

Today, the parens patriae philosophy still animates the juvenile court process
in Indiana.  The juvenile court enjoys substantial power and discretion in the
management and disposition of delinquency cases.  But the child before the
juvenile court enjoys a panoply of constitutional and statutory rights of which the
juvenile court—and the lawyers who practice before it—must always be mindful.

B.  The Tension Between Child Protection and Parental Rights
A second tension facing the juvenile justice system today is between the

responsibility of the state to protect children—principally from abuse and neglect
in their homes—and the rights of parents to raise their children without state
interference.

1.  The Responsibility to Protect.—Indiana law declares it to be the policy of
our state to ensure that children within the juvenile justice system are treated as

110. Stewart, 754 N.E.2d at 495.
111. Id.
112. Id. at 496.
113. Id.
114. Id.
115. Id.
116. Id.
117. Id.
118. Id.
119. Id.
120. Id. at 497. 



2015] A LOOK BACK 1557

persons in need of care, protection, treatment, and rehabilitation.121  In our state,
this authority is vested in the Indiana Department of Child Services with an
office in each county.122  The child welfare caseworkers (formally called “family
case managers”)123 in these county offices comprise the front line of the state’s
child protection duties.  They identify when a child has been abused or neglected,
make the initial determination whether the abuse or neglect warrants the child’s
removal from the home, and recommend to the court whether the home has
become safe enough for the child to return.124  When a child is badly injured or
even killed in the face of case manager inaction, all hell can break loose in the
form of recriminations against the child protection system and the appointed and
elected officials who head it.125  The moral as well as political consequences of
such incidents encourage aggressive child protection efforts.

During my time on the Court, there was a particularly vivid illustration of
this point in the tenure of former New York City Mayor Rudolph Giuliani.126 
Alarming cases came to light of child abuse and even death where victims had
been returned to their homes by child welfare authorities following prior abuse
or where the authorities had failed to respond to reports of abuse.127  Mayor
Giuliani then adopted a policy that “society should put the welfare of children
first, and remove them from their homes”128 “as soon as possible if there are signs
of neglect or abuse.”129  About a decade ago, there were two incidents in Indiana
that prompted reactions like Mayor Giuliani’s.

In January 2003, an eight-year-old child with cerebral palsy was found dead
in a wheelchair after a home fire in Madison County.130  An autopsy showed the
child had died from pneumonia one day before the fire, was malnourished, and
had bedsores.131  The child’s mother pled guilty to felony neglect charges.132  But
what made headlines was that a state child welfare caseworker had received
reports that the child was in trouble but had failed to act on them.133  The local
prosecutor went so far as to file felony neglect charges against the caseworker in

121. IND. CODE § 31-10-2-1(5) (2014).
122. IND. CODE § 31-25-2-7 (2014).
123. Id. § 31-25-2-5.
124. See generally id. § 31-34-2.
125. See, e.g., Moore v. State, 845 N.E.2d 225 (Ind. Ct. App. 2006).
126. Joyce Purnick, Ex-Prosecutor Builds Case for Children, N.Y. TIMES (Feb. 12, 1996),

http://www.nytimes.com/1996/02/12/nyregion/metro-matters-ex-prosecutor-builds-case-for-
children.html, archived at http://perma.cc/536X-8USV#_blank; Martin Guggenheim, Sometimes,
Foster Care Is the Easy Way Out, N.Y. TIMES, July 8, 1998, at A21.

127. Guggenheim, supra note 126; Purnick, supra note 126.
128. Purnick, supra note 126.
129. Guggenheim, supra note 126.
130. Kevin O’Neal, Caseworker Makes Deal in Neglect Case, INDIANAPOLIS STAR, Nov. 9,

2004, at B1.
131. Id.
132. Id.
133. Id.



1558 INDIANA LAW REVIEW [Vol. 48:1541

May 2003, although the prosecutor later dropped the charges in November
2004.134  

During the same time period that this Madison County case was in the news,
an even more dramatic story was unfolding in Marion County.135  Several years
earlier—in March 1997—twins who had tested positive for cocaine at birth had
been immediately placed in foster care by Marion County child welfare
authorities.136  Although the children had developmental problems, they thrived
in the foster home and their foster parent asked to adopt them.137  As the child
welfare caseworker assigned to the case was preparing for the foster parent
adoption, a woman claiming to be a relative of the twins contacted the
caseworker and asked to adopt the twins as well.138  State policy prefers
placement of children for adoption with relatives, and that is what ultimately
occurred.139  In January 2002, about two years after the adoption, the twins were
taken to Riley Hospital.140  One of the twins died later that day from dehydration;
the other was diagnosed with severe failure to thrive, malnutrition, and
demonstrated evidence of physical abuse and neglect.141  The adoptive mother
and her husband were ultimately convicted of child neglect.142

What made headlines in this case was that the caseworker had failed to
conduct the required investigation of the adoptive parents.143  Had she done so,
she would have discovered that their family relationship to the twins was
extremely tenuous, they had criminal convictions (though relatively minor ones),
and that child abuse had previously been substantiated in their household.144  In
February 2004, a grand jury indicted the caseworker with charges of felony
neglect of a dependent and misdemeanor obstruction of justice.145  Early the next
year, a jury found the caseworker guilty of obstruction of justice although it
acquitted her of the more serious neglect charges.146  In the end, the Indiana Court
of Appeals vacated the obstruction conviction.147  In analyzing the issue and

134. Id. (The case was resolved by the caseworker pleading guilty to misdemeanor charges of
tampering with computer records.  “The message social workers, [the prosecutor] said, was to be
accountable because you could be prosecuted—but don’t be intimidated from doing your job. The
prosecutor thought conviction on the felony charge would have had the wrong impact.”)

135. See Moore v. State, 845 N.E.2d 225 (Ind. Ct. App.), trans. denied, 860 N.E.2d 583 (Ind.
2006) (Sullivan, J., not participating).

136. Id. at 226. 
137. Id.
138. Id. at 226-27.
139. Id. at 227.
140. Id.
141. Id.
142. Id.
143. Id. 228-29.
144. Id. at 227.
145. Id.
146. Id.
147. Id. at 229.  



2015] A LOOK BACK 1559

coming to its conclusion, the court stated:  
In order to convict [the caseworker] of obstruction of justice, the

State was required to prove that [the caseworker] made, presented, or
used a false record, document, or thing with intent that the record,
document, or thing, material to the point in question, appear in evidence
in an official proceeding or investigation to mislead a public servant. .
. .  

It is entirely within the realm of possibility that [the caseworker]
never requested information about prior OFC contact. This is certainly
negligent conduct, and it may even be grossly negligent. But negligence
in the State of Indiana is not a criminal act. . . . Regardless, there is not
a shred of evidence that [the caseworker] actually intended to mislead a
public official because there is no evidence that she knew the
information to be false.

This case represents a tragic failure in the system that ought to have
protected [the twins] from being placed in an abusive home. And while
[the caseworker] was undoubtedly negligent in her handling of their
case, that negligence does not amount to an obstruction of justice.
Accordingly, we find that . . . the evidence was insufficient to convict
[the caseworker] of obstruction of justice.148

2.  Parental Rights and Willis.—Notwithstanding the child protection
imperative illustrated by the stories in the preceding section, there is also a
considerable body of public opinion that child protection caseworkers interfere
with parental decisions concerning discipline, elective medical procedures,
religious practices, and the allocation of family financial resources.149  This body
of opinion itself enjoys significant political support and the Indiana Code is
regularly the target—sometimes successfully—of legislative efforts to
circumscribe the state’s child protection authority in deference to parental rights.

During the time I was on the Court, my attention was sometimes drawn to
“parental rights advocates” who would argue in the press and online that in many
cases children are removed from their homes with no evidence of abuse or
neglect.  One vocal proponent of this view is a Colorado resident named Suzanne
Shell, who opposes the agencies that “take the children first and ask questions
later.”150  Shell is also the author of a monologue called “Profane Justice:  A
Comprehensive Guide to Asserting Your Parental Rights.”151

Some of these advocates strike me as being on the ideological fringe.  But
certainly, as the United States Supreme Court itself has declared, a parent’s

148. Id. at 228-29.  
149. See, e.g., AMERICAN FAMILY ADVOCACY CENTER BLOG, http://profanejustice.blogspot.

com/ (last visited Jan. 31, 2015), archived at http://perma.cc/U9ML-PUR3.
150. AMERICAN FAMILY ADVOCACY CENTER, http://profane-justice.org/profane-justice.org

(last visited Mar. 18, 2015), archived at http://perma.cc/L3ZD-B6F8.
151. SUZANNE SHELL, PROFANE JUSTICE:  A COMPREHENSIVE GUIDE TO ASSERTING YOUR

PARENTAL Rights (2nd ed. 2001).



1560 INDIANA LAW REVIEW [Vol. 48:1541

interest in the care, custody, and control of their children is “perhaps the oldest
of the fundamental liberty interests.”152  This is the import of the older cases of
Meyer v. Nebraska153 and Pierce v. Society of Sisters,154 holding that prohibiting
the teaching of foreign languages in public schools and requiring children
between the ages of eight and sixteen years to attend the public schools,
respectively, unconstitutionally “interfere[d] with the liberty of parents and
guardians to direct the upbringing and education of children under their
control.”155  Perhaps similar is Wisconsin v. Yoder,156 holding that applying
Wisconsin’s compulsory school attendance law to children of members of the
Conservation Amish Mennonite Church violated the parents’ Free Exercise
Clause rights.157  And it was in its 2000 “grandparent visitation” case that the
United States Supreme Court explicitly recognized a parent’s substantive due
process rights in the care, custody, and control of their children.158  The facts of
Meyer, Pierce, and Yoder illustrate some of the many places in which the tension
between the state’s responsibility to protect children and parental rights are
manifest.159  

In my mind, the most striking example to reach our Court during my tenure
was Willis v. State.160  In that case, Sophia Willis appealed her conviction of
felony battery on a child, imposed for having inflicted corporal punishment on
her eleven-year-old son for having stolen some clothing from her and, when
confronted, lying to her about it.161  The incident was part of the child’s “history
of untruthfulness and taking property belonging to others” and consisted of her
“strik[ing] him five to seven times with either a belt or an extension cord” across
his bared buttocks.162  “[H]is attempt to avoid the swats resulted in some of them
landing on his arm and thigh leaving bruises.”163  A school nurse reported the
injuries to child protection authorities, ultimately leading to the mother’s
conviction.164

Willis’s appeal contended that her use of physical force as a form of

152. Troxel v. Granville, 530 U.S. 57, 65 (2000).
153. 262 U.S. 390 (1923).
154. 268 U.S. 510 (1925).
155. Id. at 534-35. 
156. 406 U.S. 205 (1972).
157. Id. at 219.
158. Troxel v. Granville, 530 U.S. 57, 65 (2000).
159. Yoder, 406 U.S. at 205; Pierce, 268 U.S. at 510; Meyer v. Nebraska, 262 U.S. 390

(1923).
160. 888 N.E.2d 177 (Ind. 2008).  As will be discussed below, I dissented in Willis.  For a

good survey of the tension between child abuse and parental discipline (though one admittedly
friendly to my Willis dissent), see Kyli L. Willis, Willis v. State:  Condoning Child Abuse As
Discipline, 14 U.C. DAVIS J. JUV. L. & POL’Y 59, 72-73 (2010).

161. Willis, 888 N.E.2d at 179.
162. Id.
163. Id.
164. Id.



2015] A LOOK BACK 1561

discipline did not cross the line into criminal conduct.165  Finding “‘precious little
Indiana caselaw providing guidance as to what constitutes proper and reasonable
parental discipline of children, and [that] there are no bright-line rules,’”166
Justice Robert D. Rucker’s opinion for the Court examined two possible sources
for establishing a parental discipline privilege.167  First, the Court looked at a
Model Penal Code provision setting the parameters for when a parent’s use of
force is justifiable168 but rejected it as not having support in Indiana’s common
law.169  Next, the Court turned to the American Law Institute’s Restatement
(Second) of Torts which provides, “A parent is privileged to apply such
reasonable force or to impose such reasonable confinement upon his [or her]
child as he [or she] reasonably believes to be necessary for its proper control,
training, or education.”170  Adopting this view, the Court found it entirely
consistent with Indiana common law and also helpful in identifying a non-
exclusive list of factors to consider in “determining the reasonableness of
punishment.”171

The Court then applied this test to the facts for the case, concluded that the
State had not disproved beyond a reasonable doubt the defense of parental
discipline privilege, and reversed Willis’s conviction.172  The opinion is an
incredibly fact-specific opinion for an appellate court.173  My dissent (I was by
myself in dissent; all the other justices concurred in the majority opinion) took
the position that this was an improper appellate re-weighing of the evidence.174 
But I think any fair observer of both the majority opinion and my dissent would
say that this case was not so much about whether Sophia Willis was guilty of
battery on a child as it was about the basic tension between the authority of the

165. Id. at 180.
166. Id. at 181 (quoting Mitchell v. State, 813 N.E.2d 422, 427 (Ind. Ct. App. 2004)).
167. Id. at 181-82.
168. MODEL PENAL CODE § 3.08(1) (1985) (providing that “a parent’s use of force is

justifiable if:  (a) the force is used for the purpose of safeguarding or promoting the welfare of the
minor, including the prevention or punishment of his misconduct; and (b) the force used is not
designed to cause or known to create a substantial risk of causing death, serious bodily injury,
disfigurement, extreme pain or mental distress or gross degradation.”).

169. Willis, 888 N.E.2d at 181-82.
170. RESTATEMENT (SECOND) OF TORTS § 147(1) (1965).
171. Willis, 888 N.E.2d at 182; RESTATEMENT (SECOND) OF TORTS § 150 (1965) (“In

determining whether force or confinement is reasonable for the control, training, or education of
a child, the following factors are to be considered:  (a) whether the actor is a parent; (b) the age, sex,
and physical and mental condition of the child; (c) the nature of his offense and his apparent
motive; (d) the influence of his example upon other children of the same family or group; (e)
whether the force or confinement is reasonably necessary and appropriate to compel obedience to
a proper command; (f) whether it is disproportionate to the offense, unnecessarily degrading, or
likely to cause serious or permanent harm.”).

172. Willis, 888 N.E.2d at 183-84.
173. Id.
174. Id. at 184.



1562 INDIANA LAW REVIEW [Vol. 48:1541

state and parental rights in the context of parental discipline.175

C.  The Tension Between the Need for Child Services and Their Cost
A third tension facing the juvenile justice system today is between the

responsibility of the juvenile court judge to order services for children and the
fact that someone must pay for those services.  First and foremost in this regard
is the dilemma that so much money is required for the treatment of abuse,
neglect, and delinquency that little is ever available for prevention.  Every
juvenile court judge, DCS official, and child welfare advocate bemoans the
emphasis that must be given to coping with and treating the problems of abuse
and neglect, compared to preventing it.  Indeed, it is likely that because we
concentrate our resources on treating the results of abuse and neglect, rather than
on preventing it in the first place, we simply have more and more of it to treat.

1.  Background.—From 1936 to 1986, the child welfare system in Indiana
operated on a county by county basis under the auspices of what were called
“County Welfare Departments.”176  Even to this day, some people refer to today’s
Department of Child Services as “the Welfare Department.”

In 1986, the county welfare departments were taken over by the state.177  The
county child welfare caseworkers became employees of the “State Department
of Public Welfare” and their work was directed from Indianapolis.178  But they
continued to bring abuse and neglect and termination of parental rights cases in
the county juvenile courts.179  While the caseworkers were paid from
Indianapolis, the costs of foster care and other social services ordered by the
juvenile court in CHINS dispositional hearings continued to be the responsibility
of county government.180  These services were paid from county property taxes
deposited in each respective county’s “Child Welfare Fund.”181

In 1991, during the administration of Governor Evan Bayh, the State Welfare
Department was merged with several other state social services agencies to create

175. In fall 2014, national sports news was focused in part on child abuse case of professional
football star Adrian Peterson.  An op-ed piece written by a columnist for the Miami Herald named
Leonard Pitts, Jr. tracks the majority opinion in Willis and states:  “My mother was a child abuser. 
I was, too.  In fact, growing up, pretty much every parent I knew abused their kids.  Or so many of
Adrian Peterson’s critics would have you believe.”  Mr. Pitts goes on to conclude that “[a] parent
must be loving, accessible, involved, but also an authority figure, the one who sets limits and
imposes real and painful consequences for kids who flout them.”  Leonard Pitts, Jr., Sometimes,
Spanking Is Not Abuse, MIAMI HERALD (Sept. 20, 2014, 7:00 PM), http://www.miamiherald.
com/opinion/opn-columns-blogs/leonard-pitts-jr/article2171907.html, archived at http://perma.cc/
Y887-PGZF.

176. J.A.W. v. State, Marion Cnty. Dep’t of Pub. Welfare, 687 N.E.2d 1202, 1208 (Ind. 1997).
177. Id. at 1211.
178. Id. at 1212.
179. See IND. CODE § 31-30-1-1 (2014) (granting exclusive original jurisdiction of juvenile

matters to juvenile courts). 
180. J.A.W., 687 N.E.2d at 1213-14.
181. Id.



2015] A LOOK BACK 1563

the Indiana Family and Social Services Administration (“FSSA”).182  Now
operating as FSSA’s Division of Families and Children, the child welfare
caseworkers continued to appear in juvenile courts in the same way as before and
the costs of foster care and other social services continued to be paid at the
county level.183

At the beginning of the administration of Governor Mitch Daniels, the
Division of Families and Children was taken out of FSSA and a stand-alone
Department of Child Services was established.184  The number of child welfare
caseworkers was increased substantially, but their work remained the same: 
appearing in juvenile courts where the costs of meeting dispositional decrees
continued to be paid at the county level.185  Later in the Daniels Administration,
these costs were shifted to the state level in what I refer to below as the “Daniels
Property Tax Revolution of 2008.”186

2.  Governor Bayh’s Special Committee on Welfare Property Tax
Controls.—In the late 1980s and early 1990s, shortfalls in the County Welfare
Fund in a number of counties resulted in Governor Bayh establishing a “Special
Committee on Welfare Property Tax Controls” (“the Committee”) in 1993 to
investigate the causes of these shortfalls.187  Eighteen state and local government
officials accepted Governor Bayh’s request to serve on the Committee, including
Indiana Chief Justice Randall T. Shepard.  I was Governor Bayh’s Executive
Assistant for Fiscal policy and chaired the Committee.188

As noted in the preceding section, even though the state took over
management of the State Welfare Department in 1986, it was each county’s
“County Welfare Fund” that continued to pay for the respective county’s foster
care and other social service costs, using property taxes levied each year on a
county-by-county basis for that purpose.189  One of the first things our Committee
discovered was that seventy-eight percent of the expenditures from County
Welfare Funds were for services for CHINS, the most expensive of which were

182. Health and Human Services, Pub. L. No. 9-1991, 1991 Ind. Legis. Serv. P.L. 9-1991
(West).

183. See id. (focusing on the form rather than function of the State’s health and human services
functions).

184. Department of Child Services—Children and Minors—Destitution, Pub. L. No. 145-
2006, 2006 Ind. Legis. Serv. P.L. 145-2006 (West).

185. THE INDIANA YOUTH INSTITUTE, CHILD MALTREATMENT IN INDIANA:  A STATUS REPORT
3 (2005), available at http://www.iyi.org/resources/doc/Issue-Update-CHILD-MALTREATMENT-
Winter-05.pdf, archived at http://perma.cc/YY97-YDR8. 

186. See infra Part II.C.3.
187. See generally GOVERNOR’S SPECIAL COMMITTEE ON WELFARE PROPERTY TAX CONTROLS,

FINAL REPORT 7-8 (1993), available at http://bl-libg-doghill.ads.iu.edu/gpd-web/historical/
gscwptc1993.pdf, archived at http://perma.cc/KKP3-DFJ5 (describing the process by which
counties borrowed to cover shortfalls).

188. Id. at 20.
189. See supra Part II.C.2. 



1564 INDIANA LAW REVIEW [Vol. 48:1541

out-of-home placements, primarily in institutions.190  The Committee’s final
report set forth a series of recommendations for financing services in the short
run and beginning to address underlying societal causes of abuse and neglect in
the longer-term.191

In 1994, the Legislature adopted the most important of the Committee’s
recommendations, including establishing a new “Family and Children’s Fund”
in each county from which to pay for services for both delinquent children and
CHINs and promulgating new budgeting requirements.192  By 1996, Chief Justice
Shepard could report a “dramatic” reduction in the budget shortfalls that had
plagued counties only a few years earlier.193  These shortfalls had almost entirely
disappeared.194  The results of the Committee’s work were gratifying, but my
appointment by Governor Bayh as chair of the Committee was of personal
significance to me in a greater way.  It marked my first experience working
closely with Chief Justice Shepard and a number of leading juvenile court judges
from throughout the state, an experience that would continue for the next twenty
years and be the proximate cause of my learning about many of the topics
described in this Article.

3.  The Daniels Property Tax Revolution of 2008.—Going back to the
administration of Governor Frank O’Bannon, who served between Governor
Bayh and Governor Daniels, considerable interest was expressed in moving the
costs of child welfare services—that this, the costs of foster care and other social
services incurred on behalf of CHINs—from county government to state
government.195  However, the politics of this were complicated.  To be blunt, the
counties with the biggest expenditures in this area tend to be counties with
Democratic majorities.  There was little incentive for the Republican-controlled
Indiana Senate to shift the tax burden from these counties to the entire state.

But as concerns over property taxes intensified in 2006, the (Republican)
Daniels Administration threw its weight behind a shift of child welfare expenses
off the county property tax rolls and on to the state budget.196

190. GOVERNOR’S SPECIAL COMMITTEE ON WELFARE PROPERTY TAX CONTROLS, supra note
187, at 2 (Only twenty-two percent was paid for public assistance to needy families and other
expenses more traditionally thought of as welfare.)

191. Id. at 5-11.
192. IND. CODE § 12-19-7-3 (1994), repealed by 2008 Ind. Acts 146.
193. Randall T. Shepard, Chief Justice, Ind. Supreme Court, State of the Judiciary Address:

The Challenge of a Challenged Profession (Jan. 17, 1996) (transcript available at http://www.in.
gov/judiciary/supreme/2347.htm, archived at http://perma.cc/82ZT-N47J).

194. Id. 
195. Kevin Corcoran, Child Welfare’s Crushing Cost, NWITIMES.COM (Mar. 15, 1997, 12:00

AM), http://www.nwitimes.com/uncategorized/child-welfare-s-crushing-cost/article_b76060a4-
12b9-5a50-989f-40c52b5bf2c0.html, archived at http://perma.cc/SZ2M-L6R4.

196. Senate Leaders Hear Plan to Have State Pay for Child Welfare, THEHERALDBULLETIN.
COM (Dec. 6, 2007, 8:41 PM), http://www.heraldbulletin.com/news/state_news/senate-leaders-hear-
plan-to-have-state-pay-for-child/article_cd9035ef-49a5-5ff8-b82b-2183f65877f1.html, archived
at http://perma.cc/V9SJ-RQCQ. 



2015] A LOOK BACK 1565

One very constructive thing that happened in 2006 was a recognition on the
part of both the Daniels Administration and the Legislature of a key insight
discussed in Part I of this Article:  that there is little difference when it comes to
foster care and other social services between children adjudicated to be
delinquent and children adjudicated to be CHINs.197  The idea of the 2006
legislation would be that the state would take over responsibility for paying for
foster care and other social services for both delinquency and CHINs cases.198

Unfortunately, the legislation did not pass when a major policy disagreement
emerged between the state’s juvenile judges, the administration, and key
lawmakers.199  The administration and legislators were fearful that if the fiscal
responsibility for foster care and other social services were shifted from the local
to the state level, local judges would be less restrained fiscally in their
dispositional decrees.

I remember one leading legislator saying it this way:  it is not fair for the
state to bear the added cost of decisions by judges who send children where they
don’t need to be over the recommendation of DCS caseworkers.  The
administration’s solution was to provide that if a juvenile court judge did not
abide by the recommendation of the state’s caseworker, the judge’s home county
would be responsible for any difference in the cost.200

You will not be surprised that many juvenile court judges felt this to be an
infringement upon their independence.  “Fiscal intimidation,” said one.201

This disagreement from 2006 remained through the 2007 session of the
General Assembly and no changes were made.   But in the summer of 2007, all
hell broke loose when property tax bills in Indianapolis and, to a somewhat lesser
extent, many other areas of the state, were released and imposed mammoth
increases.202  The property tax catastrophe contributed to the November 2007
defeat of Indianapolis Mayor Bart Peterson, initially thought to be a shoo-in for
reelection.203

In response to the property tax catastrophe, in 2008 the Indiana General

197. See supra Part I.B.
198. H. R. 1001, 114th Gen. Assemb., 2nd Reg. Sess. (Ind. 2006) (Section 193 of the January

17 amendment would have established the state child welfare fund). 
199. See Letter to the Editor, KOKOMO TRIBUNE (Feb. 6, 2006), http://www.kokomotribune.

com/letter-to-the-editor---tuesday-feb/article_90113fe9-ff67-5936-9181-e7412763c988.html,
archived at http://perma.cc/MDL4-4WFM. 

200. H. R. 1001, 114th Gen. Assemb., 2nd Reg. Sess. (Ind. 2006) (Section 210 of the January
17 amendment).

201. Marcia Oddi, Judges Concerned about Bill Language Limiting Decision-Making Power
in Child Abuse and Neglect Cases, IND. L. BLOG (Feb. 8, 2006), http://indianalawblog.com/
archives/2006/02/ind_courts_judg_11.html, archived at http://perma.cc/8GMY-HD9Q. 

202. Black Sunday in Indianapolis, Indiana Due to Huge Tax Increases, CNN IREPORT (Feb.
11, 2008), http://ireport.cnn.com/docs/DOC-1230, archived at http://perma.cc/ZA8Q-VT3J. 

203. Comeback Kid:  Ballard Upsets Peterson to Win Indy Mayor’s Race, WTHR.COM (Nov.
6, 2007), http://www.wthr.com/story/7322072/comeback-kid-ballard-upsets-peterson-to-win-indy-
mayors-race, archived at http://perma.cc/338L-BTWZ. 



1566 INDIANA LAW REVIEW [Vol. 48:1541

Assembly enacted House Enrolled Act 1001, a comprehensive property tax relief
plan that shifted the principal fiscal responsibility for child welfare services from
individual counties to the state budget.204  The new law, which took effect on
January 1, 2009, also gave DCS more oversight authority over delinquency and
CHINs cases.205  

In writing this legislation, the Legislature specified a procedure for situations
in which the DCS believed that a juvenile court judge had ordered more
expensive services for a child than the circumstances warranted.206  This
procedure involved an expedited appeal to the Indiana Court of Appeals and,
ultimately, the Indiana Supreme Court.207  As just noted, the new law took effect
on January 1, 2009.208  The reader of this Article can get a sense of how seriously
our appellate courts took the legislative mandate for expedited appeals from the
fact that the first such appeal was decided by the Indiana Supreme Court only
three-and-a-half months later on April 17, 2009, after having stopped first at the
Court of Appeals!209  In that case, Justice Dickson, writing for a unanimous court,
held that a juvenile court must accept DCS’s recommendations unless the court
finds by a preponderance of the evidence that the recommendation is
“unreasonable” or “contrary to the welfare and best interests of the child.”210

4.  Out-of-state Placements and A.B.—The 2008 legislation had a special
provision for out-of-state placements.211  DCS was not to be responsible for the
cost of out-of-state placements unless the juvenile court found that there was not
a “comparable facility with adequate services” in Indiana or that the placement
was within fifty miles of the child’s residence.212  Such a determination was
subject to the same expedited appellate review that I just described.213  But only
six months after the new law took effect, on July 1, 2009, without any legislative
hearings or consultation between DCS and juvenile judges, the Legislature
surprisingly changed this specification to provide that DCS would not be
responsible for the cost of out-of-state placements made without the approval of
the DCS Director or the Director’s designee.214  

In February 2010, a juvenile court judge ordered a placement outside Indiana,
but it was not approved by the DCS Director.215  In response, the judge declared
the 2009 amendment to be unconstitutional on several grounds.216  Our Court was

204. 2008 Ind. Acts 146, H. R. 1001, 115th Gen. Assemb., 2nd Reg. Sess. (Ind. 2008).
205. Id.
206. Id.
207. Id.
208. Id.
209. In re T.S., 906 N.E.2d 801 (Ind. 2009).
210. Id. at 804.
211. 2008 Ind. Acts 146, H. R. 1001, 115th Gen. Assemb., 2nd Reg. Sess. (Ind. 2008).
212. Id. 
213. Id. 
214. H. R. 1001, 116th Gen. Assemb., 1st Special Sess. (Ind. 2009).
215. A.B. v. State, 949 N.E.2d 1204, 1219 (Ind. 2011).
216. Id. at 1210-11.



2015] A LOOK BACK 1567

called upon to resolve the conflict in the case A.B. v. State of Indiana.217  
DCS argued that the 2009 amendment gave it absolute “control over when

the State will pay for out-of-state placements.”218  That is, DCS took the position
that its Director’s decisions are not subject to the expedited appellate review
procedures.219  

In a decision written by Justice Steven H. David, we unanimously agreed
with DCS that “the effect of the 2009 amendment was to remove from the
expedited appellate review procedures adopted in 2008 those out-of-state
placements and services that the DCS Director does not recommend or
approve.”220  We also unanimously agreed that “a disapproving decision by the
DCS Director cannot be overruled by the juvenile court at which it is directed.”221

However, our Court stopped short of agreeing that the new provision was
immune from any appellate review whatsoever.222  And the standard of appellate
review that we unanimously applied instead was that of the Indiana
Administrative Orders and Procedures Act (“AOPA”), our state’s basic code of
administrative law.223  AOPA gives great deference to administrative agency
decisions and only authorizes agency action to be overturned if the agency action
is:  

(1) [a]rbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law; (2) [c]ontrary to constitutional right, power,
privilege, or immunity; (3) [i]n excess of statutory jurisdiction, authority,
or limitations, or short of statutory right; (4) [w]ithout observance of
procedure required by law; or (5) [u]nsupported by substantial
evidence.224

This is the state of the law today.225
Applying this standard, the Court disapproved the Director’s action as

arbitrary and capricious for reasons that included the out-of-state facility being
less expensive than any of the in-state alternatives; the cost of the out-of-state
facility including transition and aftercare services while none of the in-state
alternatives either provided or guaranteed those same services; and the child, the
child’s family, the child’s attorney, and the juvenile probation officer all favored
the out-of-state facility.226

217. Id. at 1211.
218. Id. at 1215.
219. Id. 
220. Id. 
221. Id. 
222. Id.
223. IND. CODE § 4-21.5 (2014).
224. Id. § 4-21.5-5-14(d).
225. Id. 
226. A.B. v. State, 949 N.E.2d 1204, 1220 (Ind. 2011).



1568 INDIANA LAW REVIEW [Vol. 48:1541

D.  The Tension Between Rehabilitation and Punishment
A fourth tension facing the juvenile justice system today can be formulated

in theoretical or operational terms.  Phrased as theory, it is the dilemma between
whether society’s primary focus should be on rehabilitating or on punishing
youthful offenders.  Phrased in operational terms, it is the dilemma between
trying and sentencing youthful offenders as children or as adults. 

1.  The Indiana Constitution and Juvenile Incarceration.—It is worthy of
note that section 18 of the Indiana Bill of Rights provides that “[t]he penal code
shall be founded on the principles of reformation, and not vindictive justice.”227 
The Indiana Constitution goes on to provide, “The General Assembly shall
provide institutions for the correction and reformation of juvenile offenders.”228 
Two decisions from the 1990s rejected claims under these two provisions made
by youthful offenders incarcerated as adults.229 

In the first, Lewis David Hunter, was convicted of committing a home-
invasion robbery in which he had bludgeoned an older woman to death.230  He
was sixteen years old at the time of his crime.231  Convicted in adult criminal
court, rather than juvenile court, he was incarcerated with adult offenders.232

His appeal argued that his imprisonment with “older, hardened criminals”
violated his rights under Article 1, Section 18.233  In doing so, he specifically
referenced the delegates’ debate during the 1850 Constitutional Convention in
which there was discussion of the difficulty of reforming youthful offenders
when they are incarcerated with adults.234

In an opinion I authored for the Court, the state’s general practice of
segregating incarcerated youthful offenders from adult offenders was reviewed
prior to concluding that it was not unconstitutional for the state to have a scheme
where the only youths not subject to this general practice are those who have
“committed the most serious and violent crimes.”235  We went so far as to
conclude that it was “well within the legislature’s purview to conclude that this
system better accommodates the purposes behind Article 1, § 18 and Article 9,
§ 2, because it segregates younger and less violent offenders from the most
violent offenders, regardless of age.”236

Receiving much greater public attention and addressing the issues in much
greater detail, but in the end reaching a similar result, was Ratliff v. Cohn.237 

227. IND. CONST. art. I, § 18.
228. IND. CONST. art. IX, § 2.
229. See Ratliff v. Cohn, 693 N.E.2d 530 (Ind. 1998); Hunter v. State, 676 N.E.2d 14 (Ind.

1996).
230. Hunter, 676 N.E.2d at 15.
231. Id. 
232. Id. 
233. Id. 
234. Id. 
235. Id. at 17. 
236. Id.  
237. 693 N.E.2d 530 (Ind. 1998).



2015] A LOOK BACK 1569

Donna Ratliff was only fourteen years old when she set fire to her family home,
killing her mother and sixteen-year-old sister.238  Charged as an adult, she pled
guilty to arson and reckless homicide.239  She was incarcerated in Indiana’s adult
women’s prison but separated from the general prison population.240

As had Hunter, Ratliff raised the debates at the 1850 Constitutional
Convention in support of her claim that Article 9, Section 2 required to State to
place all juvenile offenders—irrespective of their crimes or background—in
institutions separate from adult prisons.241  Justice Brent E. Dickson, writing for
the Court, gave the claim far more extended treatment than I had done in
Hunter.242  “Clearly,” the Court said, “there was strong support at the convention
for significant change from the then-existing state of affairs regarding juvenile
incarceration.”243  The Court agreed with Ratliff that “Article 9, Section 2 ‘is
unambiguous in requiring the legislature to provide institutions for the correction
and reformation of juvenile offenders.’”244  But the Court found no evidence that
the Framers intended that youthful offenders should be exclusively incarcerated
in separate facilities, regardless of the nature of the crime or their own
backgrounds.245  In fact, the Court drew the contrary conclusion from the fact
that, only shortly after the Constitution was adopted, the Legislature established
a facility for juvenile offenders but did not require that all youthful offenders be
excluded from adult facilities.246

On the basis that Article 9, Section 2 does not require the placement of all
juveniles in a separate juvenile facility, the Court dismissed Ratliff’s claim that
her incarceration in the women’s prison violated this provision.247

Ratliff also specifically challenged the Court’s Article 1, Section 18, analysis
in Hunter.248  She argued that Hunter should be overruled, either because it had
“no limiting principle,” or because her case was distinguishable—a sixteen-year-
old violent male with a criminal record compared to a fourteen-year-old female
first offender.249  The Court quickly rejected these claims, concluding that “such
particularized, individual applications are not reviewable under Article 1, Section
18 because Section 18 applies to the penal code as a whole and does not protect

238. Id. at 533.
239. Id. 
240. Id. 
241. Id. at 534. 
242. Ratliff is one of many important decisions on Indiana constitutional law written by Justice

Dickson that I have discussed elsewhere.  See Frank Sullivan, Jr., Selected Developments in the
Indiana Constitutional Law (1993-2012), 47 IND. L. REV. 1217, 1243 (2014).

243. Ratliff, 693 N.E.2d at 535.
244. Id. (quoting Ratliff’s brief).
245. Id. at 535-36.
246. Id. at 537. 
247. Id. at 540-41.
248. Id. at 542.
249. Id. 



1570 INDIANA LAW REVIEW [Vol. 48:1541

fact-specific challenges.”250
2.  Waiver of Youthful Offenders from Juvenile Court to Adult Criminal

Court.—If the Indiana Constitution permits youthful offenders to be incarcerated
with adults, as Hunter and Ratliff hold, then the determination as to whether such
an alleged offender will be tried in juvenile court or in adult criminal court
becomes paramount.  That determination is a mix of statutory mandate and
prosecutorial and judicial discretion, best thought of as having five categories: 

• The general rule:  the juvenile court has exclusive jurisdiction over a
child who, before becoming eighteen years old, is alleged to have committed
a delinquent act.251

• The principal exception to the general rule:  the juvenile court does not
have any jurisdiction over a child who, at least sixteen years old, is charged
with murder, kidnapping, rape, and certain other serious offenses listed in the
margin.252

• “Presumptive waiver” situations:  the juvenile court must “waive”253
jurisdiction of a delinquency case to adult criminal court upon the request of
the prosecutor in two situations:  (1) the child is charged with an act that
would be a felony if committed by an adult and has previously been
convicted of a felony or a non-traffic misdemeanor;254 and (2) a child who,
at least sixteen years old when the alleged act was committed, is alleged to
have committed an offense specified in the statute unless the court finds that
“it would be in the best interests of the child and of the safety and welfare of
the community for the child to remain within the juvenile justice system.”255

• “Discretionary waiver” situations:  the juvenile court may waive
jurisdiction of a juvenile case to adult criminal court where a child who, at
least sixteen years old when the alleged act was committed, is alleged to have
committed an offense specified in the statute and the court finds that “it is in
the best interests of the safety and welfare of the community for the child to
stand trial as an adult.”256

250. Id. (emphasis in original) (citing Lowery v. State, 478 N.E.2d 1214, 1220 (Ind. 1985),
“Article 1, Section 18 ‘applies to the penal laws as a system to insure that these laws are framed
upon the theory of reformation as well as the protection of society.’”).

251. IND. CODE § 31-30-1-1(1) (2014).
252. Id. § 31-30-1-4  (providing that juvenile court does not have jurisdiction over a child

who, while at least sixteen-years-old, is alleged to have committed attempted murder; murder;
kidnapping; rape; robbery if the robbery either was committed while armed with a deadly weapon
or results in bodily injury or serious bodily injury; carrying a handgun without a license, if charged
as a felony; and certain other offenses).

253. Id. § 31-30-3-1.  “Waiver of jurisdiction refers to an order of the juvenile court that
waives the case to a court that would have jurisdiction had the act been committed by an adult.
Waiver is for the offense charged and all included offenses.”  Id.

254. Id. § 31-30-3-6.
255. Id. § 31-30-3-5.
256. Id. §§ 31-30-3-2 & 3. 



2015] A LOOK BACK 1571

• A special “presumptive waiver” situation for murder:  the juvenile court
must waive jurisdiction to adult criminal court the case of any child who, at
least ten years old, is charged with murder, unless the court finds that “it
would be in the best interests of the child and of the safety and welfare of the
community for the child to remain within the juvenile justice system.”257
The apparent complexity of the foregoing waiver scheme can obscure some

rather straightforward principles.  First, although the general rule is that children
under eighteen are answerable for their criminal acts in juvenile court, there are
a great many situations in which an accused child over sixteen will, presumably
will, or can be tried in adult criminal court.258  That will also be the case for
recidivists and, in the case of murder, for children all the way down to the age of
ten.259

One requirement of the statute not discussed in the foregoing is that a “full
investigation and hearing” is required before a judge makes a waiver decision,
whether presumptive or discretionary.260  The centrality of this requirement was
emphasized in Vance v. State,261 where John Vance appealed his conviction for
the murder of his mother, which was committed when he was fifteen years old.262 
Because Vance was under sixteen years old, the case was filed in juvenile court,
but the special presumptive waiver provision for murder described above263 was
immediately invoked.264  In fact, Vance’s lawyer had been appointed on a
Saturday, and the State filed its waiver request on the Monday two days later.265 
Defense counsel requested a continuance to prepare for the waiver hearing but
the court denied the request, conducted the hearing that day, and waived
jurisdiction to adult criminal court.266

I was assigned to write the opinion of the Indiana Supreme Court, and began
by emphasizing that even though the presumption of the applicable statute
operated in favor of waiver, waiver was not mandatory.267  The juvenile court
was permitted to retain jurisdiction if “it would be in the best interests of the
child and of the safety and welfare of the community for the child to remain
within the juvenile justice system.”268  Thus, it was possible that had Vance been
granted a continuance, he might have gathered evidence to overcome the

257. Id.  § 31-30-3-4.
258. Id. § 31-30-3-1.  
259. Id. 
260. Id. §§ 31-30-3-2, 3, 4 & 5.  But see id. § 30-31-3-6 (child is charged with an act that

would be a felony if committed by an adult and has previously been convicted of a felony or a non-
traffic misdemeanor), where the statute does not provide for investigation or hearing.

261. Vance v. State, 640 N.E.2d 51 (Ind. 1994).
262. Id. at 54.
263. IND. CODE § 31-6-2-4(d) (1997) (current version at IND. CODE § 31-30-3-4 (2014)).
264. Vance, 640 N.E.2d at 54.
265. Id.
266. Id. at 55.
267. Id.
268. Id. (quoting IND. CODE § 31-6-2-4(d) (2014)).  



1572 INDIANA LAW REVIEW [Vol. 48:1541

presumption of waiver.269
Furthermore, the Court emphasized that the “waiver statute specifically

provides that the juvenile court may not waive jurisdiction until ‘after full
investigation and hearing.’”270  And, precedent dictated that the record 

‘should be sufficient to demonstrate unequivocally that the strict
statutory requirement of a full investigation and hearing has been met
and that a conscientious determination of the question of waiver has
been made.’  In short, the investigation and hearing is not to be a
perfunctory proceeding, but is one intended to protect the full panoply
of rights provided by our state and federal constitutions.271

Under the circumstances, the Court held 
where a mere two days elapsed between the time counsel was appointed
for Vance on Saturday and the waiver hearing on Monday, and where
Vance requested a continuance, one was required in order that the
statutory full investigation could take place and Vance could marshal
evidence as to why he should remain in the juvenile justice system.272

3.  Michigan’s “Blended” Sentencing Scheme.—Other states have statutes
that are not restricted to our binary options of either juvenile or adult criminal
procedures, but permit a blend of the two.273  One case that came to my attention
some years ago from Michigan arose out of a 1997 fatal shooting of an eighteen
year old boy in Pontiac by an eleven year old boy, Nathaniel Abraham.274  The
trial court’s sentencing order in People v. Abraham275 describes how, under
Michigan’s sentencing statute, an eleven year old could be tried as an adult for
first-degree murder but, if convicted, sentenced in one of the following three
ways at the discretion of the judge:  (1) as a juvenile, with release at the latest at

269. Id. at 55.
270. Id. (quoting IND. CODE § 31-6-2-4(d) (2014)).  
271. Id. at 55 (quoting Summers v. State, 230 N.E.2d 320, 325 (Ind. 1967), which followed

Kent v. United States, 383 U.S. 541 (1966)).
272. Id.  The Court did not reverse Vance’s conviction, however, because Vance was later

granted a full waiver hearing on other charges and because he failed to convince the court that
waiver was inappropriate on the other charges, the Court was persuaded that he was not prejudiced
by his lack of time to prepare for the hearing on the murder charge and, therefore, that the denial
of the continuance was harmless error.  Id. at 56.  In 2012, Vance served as the precedent when the
Indiana Court of Appeals vacated the conviction of Paul Henry Gingerich for conspiracy to commit
murder when he was twelve years old.  Gingerich v. State, 979 N.E.2d 694 (Ind. Ct. App. 2012). 
In this highly publicized case, the court held that the juvenile court had abused its discretion when
it denied Gingerich’s request for a continuance of the waiver hearing.  Id.

273. Andrea Knox, Note, Blakely and Blended Sentencing, A Constitutional Challenge to
Sentencing Child “Criminals,” 70:5 OHIO ST. L.J. 1275 (2009). 

274. People v. Abraham, 51 Juv. & Fam. Ct. J., Spring 2000, at 3, 10 (Mich. Cir. Ct. (Oakland
Co.) Jan. 13, 2000), aff’d, 662 N.W.2d 836 (Mich. Ct. App. 2003).

275. Id.



2015] A LOOK BACK 1573

age twenty-one; (2) as an adult subject solely to adult penalties and punishment;
or (3) with a blended sentence.276  Under the blended sentence option, a child is
initially sentenced as an adult but placed in the juvenile system until age twenty-
one.277  If, at age twenty-one, the child is not rehabilitated, the adult sentence is
carried out.278  The initial determination is subject to annual review.279  In
Abraham, the judge opted for a blended sentence.280

The judge’s sentencing order in Abraham also aptly summarized the tension
between rehabilitation and punishment:  

[T]he pendulum has swung back so that much of the public wants us to
get tougher with juveniles.  For some it is worked, for others it has not
. . . .  If we don’t want to throw out the baby with the bathwater, treat all
youngsters more harshly, and perhaps even abolish the juvenile court and
return to the days of the Industrial Revolution where we had one
criminal court for both children and adults, we must do better with the
thousands of juveniles we see every day in our juvenile courts.281

V. THE TENSION BETWEEN REUNIFICATION AND PERMANENCY
A fifth tension facing the juvenile justice system is between the goals of

reunification and permanency—between the goal of reunifying the victim of
child abuse or neglect who has been removed from home with the child’s
biological family and the goal of finding a permanent loving home for that child.

A. Background
Where reunification with the child’s biological family results in a permanent

loving home for the child, it seems this tension does not arise.  However,
deciding when a child removed from the home should be permitted to return
home is no small matter.  After all, something happened in that home which
resulted in the drastic step of removal.  Is the molesting boyfriend really gone? 
Has the child’s mother really stopped drinking or using drugs?  Will a reasonable
level of hygiene really be maintained?  The inability to answer questions like
these in the affirmative often results in what is called “foster care drift.”282 
Neither the caseworker nor the judge is willing to say that it will never be
possible for the child to return to his or her biological family, so no steps are
taken toward adoption.283  On the other hand, neither are they willing to say the

276. Id.
277. Id.
278. Id.
279. Id.
280. Id.
281. Id.
282. Leslie J. Harris, Rethinking the Relationship Between Juvenile Courts and Treatment

Agencies—an Administrative Law Approach, 28 J. FAM. L. 217, 237-38 (1989/1990).
283. Id. (explaining that “foster care drift” is the result of children never returning to their



1574 INDIANA LAW REVIEW [Vol. 48:1541

biological family is safe for the child now.284  So, the child remains in foster care
for months, and sometimes years, until a decision is made regarding whether
reunification is possible.285

That is the way things were when I joined the Indiana Supreme Court back
in 1993.  But in November 1997, the Congress passed, and President Clinton
signed into law, the Adoption and Safe Families Act (“ASFA”).286  The new law
mandated tough time deadlines within which child protection systems and
juvenile courts must decide whether it is safe to reunify or if a permanent
placement should be made elsewhere (presumably through adoption).287 
However, the ASFA timelines are so short that juvenile judges face difficult
reunification-permanency choices with great frequency.288

B. “Foster Care Drift” and Phelps
One of the provisions of ASFA designed to prevent “foster care drift”

specifies that where a child has been in foster care for fifteen of the preceding
twenty-two months, child welfare authorities must file a petition with the juvenile
court to terminate the parents’ parental rights and the court must hold a hearing
on the petition within ninety days of its filing.289  Can, consistent with parents’
constitutional rights under cases like Meyer and Pierce, ASFA mandate
termination of parental rights on such an extremely short timetable?  This was the
issue faced by the Indiana Court of Appeals in Phelps v. Sybinsky.290

Bobby Phelps, an autistic child with behavioral problems, was removed from
his parents’ home in November 1993, and placed in foster care.291  The
predecessor agency to DCS notified the Phelpses that under the state statute
implementing ASFA, it would be filing a motion to terminate parental rights
because Bobby had been placed out of their home for at least fifteen of the past
twenty-two months.292  The Phelpses maintained that ASFA violated their
substantive due process and equal protection rights under the Fourteenth
Amendment.293  More specifically, they maintained that the statute violated their
fundamental right to “family integrity.”294  Because a fundamental right was
involved, they continued, the AFSA needed to be subjected to strict scrutiny.295 
Given the possibility that the parents would prove themselves to be fit to have

biological families and also never being place in other permanent living situations).
284. Id.
285. Id.
286. Adoption and Safe Families Act, Pub. L. No. 105-89, 111 Stat. 2115 (1997).
287. 42 U.S.C. § 675(5)(E) (Supp. III 1997).
288. Id.
289. Id.
290. Phelps v. Sybinsky, 736 N.E.2d 809 (Ind. Ct. App. 2000).
291. Id. at 812.
292. Id.
293. Id. at 817.
294. Id.
295. Id.



2015] A LOOK BACK 1575

Bobby return home if only the time period would be a little shorter, they argued
that the statute should fall.296

Here is the approach taken by the Indiana Court of Appeals in an opinion
authored by Judge Paul D. Mathias:  

The threshold question for a Fourteenth Amendment challenge concerns
the level of scrutiny . . . . The [Phelpses] contend[ ] that the [ ] statute
should be subjected to a “strict scrutiny” standard of review because
actions to terminate the parent-child relationship implicate the
fundamental right of family association.  However, those governmental
actions that merely touch on the family relationship in a slight or
tangential manner do not require a strict scrutiny standard of review. . .
. Here, the so-called “interference” is the requirement that parents, after
their child has been placed out of the home for at least 15 months during
which they have appeared at a number of hearings on the issue, appear
in court one more time within ninety days of the filing of the petition to
terminate for a hearing to determine the best interests of the child.  The
[ ] statute merely sets a benchmark for additional involvement of the
judicial process; termination can only occur after the statutory
requirements are proven by clear and convincing evidence. . . .
The legislation must merely bear a rational relation to a legitimate
governmental purpose.  The [ ] statute seeks to facilitate adoptions,
instead of endless foster care placements, for children placed outside
their parental homes for an extended period of time.  Accordingly, it sets
a 15-month benchmark after which the judicial system becomes involved
by automatic filing of a petition to terminate parental rights.  Although
the filing of such a petition is certainly not a matter to be taken lightly,
it does bear a rational relation to the State’s very legitimate interest in
promoting adoptions of children who have been removed from their
parental home for extended periods of time.  The [ ] statute, with the
protections outlined above, does not violate the Due Process Clause . .
. [or] the Equal Protection Clause.297

C. Permanency, Reunification, and the Incarcerated Parent
If the AFSA time deadlines pass constitutional muster in terms of due

296. Id.
297. Id.  For interesting and succinct discussions of the substantive due process right to

protection of family privacy and family relationships in another context, see the opinions of the
Circuit and District Courts in United States v. Hollingsworth, 495 F.3d 795, 803 (7th Cir. 2007),
rev’g United States v. McCotry, No. IP 06-CR-25-01-H/F, 2006 WL 2460757, at *10 (S.D. Ind.
July 13, 2006).  At issue was “whether the police may interrogate a young elementary school child
at a public school (using a school personnel member as the interrogator) for the sole purpose of a
criminal investigation of the child’s parent and not for any purpose relating to child protection.” 
Id.  The district court found the parent’s substantive due process right violated; the circuit court
reversed.  Id.



1576 INDIANA LAW REVIEW [Vol. 48:1541

process and equal protection, they nevertheless can cause heart-wrenching stress
to parents and the most difficult of challenges to courts at the reunification-
permanency divide.  One such scenario is the incarcerated parent.  Think about
it for a minute.  A child’s parent is (or parents are) sent to prison and the child
is placed in foster care.  The prison sentence is longer than fifteen months.  As
such, DCS is required to initiate termination proceedings under ASFA.298  

Should the juvenile court grant DCS’s petition in all such cases?  That is,
does parental incarceration, standing alone, always constitute clear and
convincing evidence that it is in a child’s best interests that parental rights be
terminated?  While most such petitions are granted and affirmed on appeal, our
Court held termination was not appropriate in two cases decided in 2009.299

In the first,300 an incarcerated mother had taken positive steps toward
becoming a better parent in prison, demonstrated commitment and interest in
maintaining a parental relationship with her five year old son, and showed a
willingness to continue to participate in personal improvement programs after her
release from prison.301  In the second,302 a situation where both parents were
incarcerated, (1) both parents’ release dates from prison were to occur soon; (2)
both had fully cooperated with the services required of them while incarcerated;
(3) both had a relationship with the child before their incarceration and attempted
to keep the child in the care of relatives prior to their convictions; and (4) the
child’s need for permanency would not be severely prejudiced because the
parents’ ability to establish a stable and appropriate life upon their release from
prison could be observed and determined within a relatively quick period of
time.303

As I say, in both cases, our Court concluded that on these records, there was
insufficient evidence that it was in the respective child’s best interests that
parental rights be terminated.304  This is not to say that there is any presumption
in favor of, or even any special rule concerning, incarcerated parents.  Rather,
cases of incarcerated parents well illustrate the tension between permanency and
reunification.

VI. CONCLUSION:  A REQUEST TO THE READER
The five areas of tension facing the juvenile justice system today that I have

described in this Article illustrate the challenging work that face the men and
women who labor in our juvenile justice system.  The judges,305 their staffs,

298. 42 U.S.C. § 675(5)(E) (Supp. III 1997).
299. Pappas v. A.S., 908 N.E.2d 191 (Ind. 2009); R.Y. v. Ind. Dep’t of Child Servs., 904

N.E.2d 1257 (Ind. 2009). 
300. R.Y., 904 N.E.2d at 1257.
301. Id. at 1262.
302. Pappas, 908 N.E.2d at 191.
303. Id.
304. Id.; R.Y., 904 N.E.2d at 1257.
305. A listing of the many juvenile court judicial officers—judges, magistrates, master

commissioners, and referees—who have made significant contributions to the quality of juvenile



2015] A LOOK BACK 1577

juvenile probation officers, and child protection case managers all deserve our
profound thanks and appreciation, as do those who support their work in so many
other ancillary occupations in the fields of correction, mental health, education,
and more.

As a member of the Indiana Supreme Court from 1993 until the middle of
2012, I tried to support the work of these men and women and am proud of the
many initiatives that the Court took in that regard:  conducting educational
programs under the auspices of the Indiana Judicial Center;306 supervising one of
the nation’s most extensive programs providing volunteer court-appointed special
advocates to serve as the “child’s voice in court”;307 establishing “family court”
pilot projects;308 supporting award-winning projects by documentary film-maker
Karen Grau;309 undertaking to equip every Indiana court with a twenty-first
century case management system and connect each court’s case management
system with each other and with those who need and use court information;310
establishing a “Court Improvement Program” that makes grants for particular
projects that improve the juvenile justice system;311 and more.

At the helm of all these initiatives was Chief Justice Randall T. Shepard, who
reflected on, worried over, and did something about the great challenges and
policy choices that our juvenile justice system faced.  Supporting and improving
Indiana’s juvenile justice system was one of his top priorities in the twenty-five
years that he served as our Chief Justice.  Now the helm has passed to a new
generation of justices, two of whom, Chief Justice Loretta Rush and Justice
Steven David, were juvenile judges of distinction before their appointment to the

justice in our state must await another time and place.  But tribute must be paid here to the
universally recognized leader of Indiana’s juvenile judiciary, former Monroe Circuit Court Judge
Viola J. Taliaferro, whose powerful intellect, steely purpose, and gentle kindness have inspired and
motivated me and countless others—and benefitted thousands of Hoosier children.

306. Judicial Branch of Indiana, Education & Outreach, COURTS.IN.GOV, http://www.in.gov/
judiciary/2727.htm (last visited May 13, 2015), archived at http://perma.cc/6944-BKVE.

307. Indiana Child Advocates Court Appointed Special Advocates Network, Learn About Us,
History, http://www.childadvocatesnetwork.org/learn-about-us/history/ (last visited May 13, 2015),
archived at http://perma.cc/6X98-K6GC (explaining the program is administered through the
Indiana Supreme Court).

308. Division of State Court Administration, About the Family Court Project,
COURTS.IN.GOV, http://www.in.gov/judiciary/family-court/2396.htm (last visited May 13, 2015),
archived at http://perma.cc/566Y-Y3WR.

309. Karen Grau, No Place for a Child, NBC NEWS (Dec. 20, 2006), http://www.nbcnews.
com/id/16174201/ns/msnbc-documentaries/t/no-place-child/#.VQ1zMhaKzwy (last visited May
13, 2015), archived at http://perma.cc/WG6P-H6MW.

310. Division of State Court Administration, Indiana Court Information Technology Extranet
(INcite), COURTS.IN.GOV, http://www.in.gov/judiciary/admin/2665.htm (last visited May 13, 2015),
archived at http://perma.cc/H7SC-UC39.

311. Indiana Judicial Center, Court Improvement Program, Courts.IN.gov, http://www.in.gov/
judiciary/cip/ (last visited May 13, 2015), archived at http://perma.cc/UQU9-L4C9.



1578 INDIANA LAW REVIEW [Vol. 48:1541

Indiana Supreme Court by Governor Daniels.312
I end this Article with a request to the reader.  Evan Bayh, who, when

governor of Indiana, did me the high honor of appointing me to the Indiana
Supreme Court, has said, “Our children are our greatest treasure and our greatest
resource.”313  If we are to safeguard that treasure and utilize that resource to the
fullest, we will all have to help the children who are troubled and who are in
trouble.  I hope some readers of this Article become child protection case
managers and juvenile probation officers.  I hope some who are or will become
practicing lawyers conduct at least some of their practice in juvenile court.  I
hope many will explore the possibility of helping juvenile court as volunteer
court appointed special advocates and guardians ad litem. 

Most of all, I hope the reader will join every juvenile court judge I know, and
many, many others involved with abused and neglected children, in seeking to
prevent child abuse and neglect.  As I mentioned earlier, we concentrate many
more of our resources on treating the results of abuse and neglect than on
preventing the abuse and neglect in the first place.

For those who work in a court, church, recreational, or educational setting
with children who have been abused or neglected, have as one goal preparing
them to be parents who do not repeat the cycle by abusing or neglecting their
own children—and be on the lookout for younger siblings and take creative steps
to keep them from being victimized as well.  In the great debate about the
allocation of public resources, speak up for funding of prevention programs.  And
when engaged in discussion and debate over the direction of our country, make
the prevention of delinquency and child abuse and neglect one of your causes.

312. Tom LoBianco, Indiana Chooses First Female Chief Justice, CHRISTIAN SCIENCE
MONITOR (Aug. 6, 2014), http://www.csmonitor.com/USA/Latest-News-Wires/2014/0806/Indiana-
chooses-first-female-chief-justice, archived at http://perma.cc/6HF4-AXZB; Courts in the
Classroom, Justice Steven H. David, COURTS.IN.GOV, http://www.in.gov/judiciary/citc/3290.htm
(last visited May 13, 2015), archived at http://perma.cc/M4LQ-BRDZ.

313. Governor Evan Bayh, 1992 State of the State Address 5 (Jan. 9, 1992).