Indiana Law Review


Indiana Law Review
Volume 12 1979 Number 1

Survey of Recent Developments in Indiana Law

The Board of Editors of the Indiana Law Review is pleased to
publish its sixth annual Survey of Recent Developments in Indiana
Law. This survey covers the period from June 1, 1977, through May
31, 1978. It combines a scholarly and practical approach in emphasiz-

ing recent developments in Indiana case and statutory law. Selected

federal case and statutory developments are also included. No at-
tempt has been made to include all developments arising during the
survey period or to analyze exhaustively those developments that
are included.

I. Foreward: Indiana's New Juvenile Code

William A. Kerr*

On March 10, 1978, the statute enacting Indiana's new juvenile
code 1 was signed by the governor although the code's effective date
was deferred until October 1, 1979.2 By coincidence, the last major
revision and codification of the state's juvenile statutes was also
signed on March 10, in 1945.3 In the intervening thirty-three years,
the state's juvenile justice system underwent dramatic changes,
many of which are reflected in the new code. Most of these changes
occurred primarily because of the decisions of the United States

Supreme Court in Kent v. United States* and In re Gault. 5

The preparation of Indiana's new code can be traced directly to
these two decisions. In 1967, shortly after the Gault decision,6 the In-
diana Judicial Conference was established as an organization of the

'Professor, Indiana University School of Law— Indianapolis; Executive Director,
Indiana Judicial Center. LL.M., Harvard University, 1968.

>Act of Mar. 10, 1978, Pub. L. No. 136, § 1, 1978 Ind. Acts 1196 (codified at Ind.

Code §§ 31-6-1-1 to 10-4 (Supp. 1978)).
2Act of Mar. 10, 1978, Pub. L. No. 136, § 59(a), 1978 Ind. Acts 1196.
3
Ch. 356, 1945 Ind. Acts 1724 (codified at Ind. Code §§ 31-5-2-1 to 10-2 (1976 &

Supp. 1978)) (repealed effective Oct. 1, 1979).
4383 U.S. 541 (1966).
5387 U.S. 1 (1967).
6In re Gault was decided on May 15, 1967.



2 INDIANA LAW REVIEW [Vol. 12:1

state's judges with authority to psomote the improvement of the

state's judicial system.
7 One of this organization's first actions was

the appointment of a Committee on Juvenile Procedure consisting of

seventeen judges with juvenile jurisdiction. As reported by the In-
diana Judicial Study Commission in 1968, this committee "drafted a

revision of Indiana Juvenile Laws that will conform with the recent
Constitutional requirements of juvenile procedure as interpreted by

the United States Supreme Court and the Indiana Supreme Court."
8

Although the draft was reviewed and revised by numerous organiza-

tions and groups in the intervening years, it served as the primary

basis for the juvenile code which was finally enacted ten years

later.
9

Ten chapters are included in the new code which is part of the
family law title (Title 31) of the Indiana statutes. These ten chapters

are concerned with general provisions (Chapter 1), jurisdiction

(Chapter 2), rights and effect of adjudication (Chapter 3), pro-

ceedings governing delinquent children and children in need of ser-

vices (Chapter 4), termination of parent-child relationships (Chapter

5), paternity (Chapter 6), juvenile procedure (Chapter 7), records

(Chapter 8), juvenile court provisions (Chapter 9), and the interstate

compact on juveniles (Chapter 10).

A. General Provisions (Chapter 1)

1. Purpose. —& six-part statement of policies and purposes is
set forth at the beginning of the new code. A similar statement ap-
pears at the beginning of the 1945 codification, but there are some
striking differences. For example, the first purpose stated in the

new code is "to provide a juvenile justice system that protects the
public by enforcing the legal obligations children have to society." 10

By contrast, the 1945 codification contains only a brief reference to
enforcing the legal obligations "due" from children, and this appears

at the very end of the statement of purpose.11

7Act of Mar. 9, 1967, ch. 170, 1967 Ind. Acts 366 (effective July 26, 1967) (codified

at Ind. Code §§ 33-13-14-1 to 5 (1976)).
"[1967-68] Ind. Jud. Study Comm'n, Biennial Rep. 54.
9The code, as finally enacted, had passed through revisions by various oganiza-

tions, including the Civil Code Study Commission in 1970-71, the Indiana Supreme
Court Advisory Committee on Revision of Rules of Procedure and Practice in 1973-74,

and the Juvenile Justice Division of the Indiana Judicial Study Commission in 1976-77.

See Juvenile Justice Division, Indiana Judicial Study Commission, Indiana Juvenile

Code: Proposed Final Draft ix (1977) [hereinafter referred to as Indiana Juvenile
Code: Proposed Final Draft].

10
Ind. Code § 31-6-1-1(1) (Supp. 1978) (effective Oct. 1, 1979). All citations herein to

article 6 are from the new juvenile code which will be effective on October 1, 1979.
"Zi § 31-5-7-1 (1976) (repealed effective Oct. 1, 1979). All citations herein to arti-

cle 5 are from the existing Indiana statutes which will be repealed on October 1, 1979.



1979] SURVEY-FOREWORD 3

The second purpose in the new code reflects the due process em-
phasis generated by the United States Supreme Court in the Kent

and Gault cases. According to this purpose, the code is to "provide a

judicial procedure that insures fair hearings" and enforces the legal

rights of children and their parents.12 This emphasis on due process

does not appear in the purposes stated in the earlier codification,

although the 1945 statement does refer to the enforcement of rights

"due" to children.13 The reference to the rights of parents, along

with the later reference to the obligations of parents, is also a

theme in the new code which is not included in the earlier codifica-
tion.

Providing children with care, guidance, and control is the

primary purpose stated in the 1945 statute,14 and this is repeated in

the new code which refers to children in need of "care, treatment,
rehabilitation, or protection."

15 Two new purposes appear in the new
code, to develop diversionary programs16 and "to strengthen family

life by assisting parents to fulfill their parental obligations." 17 The
new code ends with the statement that children are to be removed
from their parents only when in the best interest of the child or of
public safety,

18
a policy which also appears in the earlier

codification.
19

These purposes and policies are reflected throughout the new
code and reflect the effort of the General Assembly to provide for
the protection of society while retaining a special system of justice

for the juvenile offender. In so doing, the General Assembly decided
to retain the parens patriae concept but attempted to balance it

with an emphasis on fundamental due process for juveniles.

2. Definitions. —Two major questions that existed under the
state's prior juvenile statutes appear to be resolved by the defini-
tions section of the new code. The new code provides that a "child"
is a person under eighteen years of age or a person "eighteen (18),
nineteen (19), or twenty (20) years of age" who is charged with a
delinquent act committed before his eighteenth birthday.20 Under
the prior Indiana law, a juvenile who committed an act of delinquency
before the age of eighteen years remained subject to juvenile court
jurisdiction even after reaching the age of eighteen, with no ap-

12
Id. § 31-6-1-1(2) (Supp. 1978).

13/d § 31-5-7-1 (1976).
uId
15/d § 31-6-1-1(3) (Supp. 1978).
18/d § 31-6-1-1(4).
ll
IcL § 31-6-1-1(5).

l6Id § 31-6-1-1(6).
19Id § 31-5-7-1 (1976).
™Id. § 31-6-1-2 (Supp. 1978).



4 INDIANA LAW REVIEW [Vol. 12:1

parent age limitation.
21 This apparently placed adults under the

juvenile court's jurisdiction even after any reason for exercising

such jurisdiction had ended, but the new code places a three-year
limitation on the continuation of such jurisdiction.

22

The new code also defines a "crime" as an "offense for which an

adult might be imprisoned under the law of the jurisdiction in which

it is committed."23 This would thus appear to authorize an Indiana

juvenile court to exercise jurisdiction over a juvenile who is accused
of committing an offense in another state or in violation of a federal

law. The prior juvenile statutes did not contain a similar provision,

and the definition of delinquency was ambiguous in this regard

because it referred only to the commission of "an act which, if com-

mitted by an adult, would be a crime.'
"24

B. Jurisdiction (Chapter 2)

1. General —The new juvenile code appears to make a number
of substantial changes in the jurisdiction of juvenile courts. The first
major change is concerned with the offense of murder. Under the
prior statutes, a juvenile court had exclusive jurisdiction over delin-

quency proceedings involving acts that would be crimes if commit-

ted by an adult except for first degree murder and traffic
violations.

25 The new code continues the exception for traffic viola-
tions

26 and adds exceptions for violations of laws concerning water-

craft and snowmobiles27 and laws protecting fish or wildlife.28 At the
same time, the code omits the former exception for first degree
murder and thus gives the juvenile court exclusive jurisdiction over
all charges involving murder. A subsequent section provides,
however, that a child ten years of age or older must be waived when
charged with an act that would be murder if committed by an adult

27d § 31-5-7-13 (1976).
*Id. § 31-6-1-2 (Supp. 1978). See In re Johnson, 178 F. Supp. 155 (D.N.J. 1957). See

also Institute of Judicial Administration & American Bar Association Juvenile
Justice Standards Projects, Standards Relating to Juvenile Delinquency and
Sanctions 14 (Tent. Draft, 1977). [This project published numerous volumes of stand-
ards. Hereinafter the author will be cited as Juvenile Justice Project; the title of

each volume will be cited in full.]

^Ind. Code § 31-6-1-2 (Supp. 1978).
U
I<L § 31-5-7-4.1 (1976). See also Juvenile Justice Project, supra note 22, Stand-

ards Relating To Juvenile Delinquency and Sanctsions 17 (Tent. Draft, 1977); Na-
tional Advisory Committee on Criminal Justice Standards and Goals (Law En-
forcement Assistance Administration), Juvenile Justice and Delinquency Preven-
tion 295 [hereinafter cited as National Advisory Committee].

26
Ind. Code § 31-5-7-4.1(a) (1976) (codified as amended at id § 31-5-7-4.1(a) (Supp.

1978)).

"Id. § 31-6-2-l(b) (Supp. 1978).

"Id. § 31-6-2-l(b). See also id §§ 14-1-1-63, 31-5-7-13.

"Id. § 31-6-2-l(b).



1979] SURVEY-FOREWORD 5

unless the court finds that the child should remain within the

juvenile justice system.
29

By eliminating this exception from the juvenile statutes, the
General Assembly purported to resolve the discrepancy between the
juvenile statutes and the new criminal code that had existed since
October 1, 1977, the effective date of the new criminal code. Under
the new criminal code, all distinctions between first and second
degree murder were abolished.30 Unfortunately, the juvenile statutes
were not amended at the same time and thus continued to contain
the distinctions between first and second degree murder, authoriz-

ing a juvenile court to process only second degree murder offenses.31

Having decided to resolve the discrepancy by giving the juvenile
courts exclusive jurisdiction over all juveniles charged with offenses

involving murder, the General Assembly omitted the first degree
murder exception from the new juvenile code. It was still necessary,
however, for the General Assembly to resolve the conflict on an in-
terim basis until October 1, 1979, the effective date of the new
juvenile code. The new provision of the juvenile code could have
been made effective immediately on an emergency basis, but the
General Assembly decided to enact a separate statute which ex-
cepted all murder charges from juvenile court jurisdiction.32 This
statute was not effective until March 9, 1978, and thus Indiana's
courts must still attempt to discern the legislative intent concerning
the handling of offenses involving murder between October 1, 1977,
and March 9, 1978. The inconsistent action of the General Assembly
in enacting contradictory statutes in the same legislative session
offers little guidance for resolving this issue.

As a second major change, the new code eliminates juvenile
court jurisdiction over dependency and neglect proceedings and
replaces this with jurisdiction over proceedings concerning children

in need of services.33 Although the drafters of the proposed code in-

tended to combine the definitions of dependency and neglect into

the one definition of children in need of services,34 the new code has
in fact eliminated the juvenile court's jurisdiction over children

formerly considered to be dependent. This occurred, possibly

through inadvertence, because of the manner in which the proposed
definition of "child in need of services" was amended and ultimately

M/d § 31-6-2-4(c).
*°Ia\ § 35-42-1-1.
n
Id. § 31-5-7-4.1, .14(b) (codified as amended at Ind. Code § 31-5-7-4.1(a) (Supp.

1978)).

82Act of Mar. 9, 1978, Pub. L. No. 2, § 3109, 1978 Ind. Acts 2, (codified at Ind.
Code § 31-5-7-4.1 (Supp. 1978)).

'"Ind. Code § 31-6-2-l(a) (Supp. 1978). See also id. § 33-12-2-3 (1976).
**See Indiana Juvenile Code: Proposed Final Draft, supra note 9, at xi.



6 INDIANA LAW REVIEW [Vol. 12:1

enacted by the General Assembly in the new code,35 to be discussed
hereafter.

Otherwise, the juvenile courts will continue to have exclusive

jurisdiction over delinquent children, children in need of services,

and paternity proceedings.36 Exclusive jurisdiction is extended to

proceedings to terminate the parent-child relationship
37 whereas the

juvenile court previously had authority to terminate the relationship

only as a dispositional alternative in an appropriate dependency or

neglect proceeding.38 Likewise, the courts will continue to have con-

current jurisdiction over adults charged with neglect of a

dependent39 and contributing to the delinquency of a minor.40 Concur-

rent jurisdiction is also extended to include proceedings involving

adults charged with violating the compulsory school attendance

law.
41

2. Criminal court jurisdiction. —Two provisions of the new code
were enacted to authorize the extradition of children who commit
criminal acts and then go to another state. The rendition amend-
ment to the Interstate Compact on Juveniles was adopted and
authorizes extradition between states adopting the compact.42 In
order to authorize the extradition of juvenile offenders from states

that have not adopted the amendment, the code also gives criminal
courts concurrent jurisdiction over juveniles who have left the
state.

43 Any juvenile returned under this latter provision is then to
be transferred from the criminal court to the juvenile court for fur-

ther action.44

If a defendant is brought to trial in a criminal court and it is

determined that the alleged crime was committed before the defen-
dant's eighteenth birthday, the code provides that the defendant is

to be transferred immediately to the juvenile court.45 This provision

is essentially the same as the provision in the earlier statutes,46 but
it does not appear to be consistent with the new definition of "child"
in the definitions section as discussed above. If the definition of

"child" was intended to limit the time during which a person would

35
Ind. Code § 31-6-4-3 (Supp. 1978).

"Id. § 31-6-2-l(a). See also id. § 33-12-2-3 (1976).
31
Ia\ § 31-6-2-l(a) (Supp. 1978).

**In re Perkins, 352 N.E.2d 602 (Ind. Ct. App. 1976) (construing Ind. Code §§
31-5-7-7, -15 (1976)).

"Ind. Code §§ 31-6-2-l(c), 33-12-2-3(b) (Supp. 1978).
"Id. §§ 31-6-2-l(c), 33-12-2-3(b) (Supp. 1978).
41M § 31-6-2-l(c) (Supp. 1978). See also id, § 20-8.1-3-32 (1976).
i2
Id. § 31-6-10-1 (amend. 2) (Supp. 1978).

"Id. § 31-6-2-l(e).

"Id. § 31-6-2-2(b).

"Id. § 31-6-2-2(a) (1976).

"Id. § 31-5-7-13 (Supp. 1978).



1979] SURVEY-FOREWORD 7

continue subject to juvenile court jurisdiction, then this section

should be amended to reflect that limitation.
3. Waiver of jurisdiction. —Although the waiver provision of

the new code appears to be similar to the prior statute except for
the waiver of murder offenses, as discussed above, there are a
number of other substantial changes in the provision. The new code
clearly provides that waiver of jurisdiction includes the offense

charged and all lesser included offenses.47 This provision resolves an

issue that was not covered in the earlier statutes, although the
Indiana Supreme Court unanimously endorsed this view in dicta in
Blythe v. State*8 a case that was decided twenty days after the new
juvenile code was signed into law. In fact, the supreme court sug-
gested in Blythe that either a conviction or a guilty plea to a lesser

included offense would be proper after waiver to a criminal court.

The new code, however, makes no reference to the propriety of plea
bargaining concerning a lesser included offense.

The new code furthermore provides that a juvenile court must
waive a child who is alleged to have committed a Class A or Class B
felony when sixteen years of age or older unless the court finds that
the child should remain in the juvenile system.49 By contrast, the
former statute provided for such waiver only with reference to

eleven specifically enumerated offenses, including offenses such as

second degree murder, kidnapping, rape, robbery, and first degree

burglary.50 Waiver of jurisdiction has been a highly controversial
subject in the General Assembly in recent years as reflected by the
fact that the waiver provisions have been amended four times since
1975. In fact, the General Assembly enacted two inconsistent provi-
sions during the 1978 legislative session, just as it did with

reference to the handling of murder offenses. Class A and Class B
felonies were included in the new code's waiver provision concern-
ing serious offenses, as noted above, but the General Assembly also
enacted a separate statute which substituted "forcible felony" for

the list of eleven offenses in the prior waiver statute.51 This provi-

sion was effective on March 9, 1978, and presumably will be
superseded by the new code on October 1, 1979.

Finally, the code provides that a waiver motion cannot be filed

after the juvenile has admitted the allegations in the juvenile court

4
7<£ § 31-6-2-4(a).

48373 N.E.2d 1098, 1100 (Ind. 1978).
49
Ind. Code § 31-6-2-4 (Supp. 1978).

*°Id. § 31-5-7-14(b) (1976) (currently codified as amended at id. § 31-5-7-14(b) (Supp.

1978)).

51Act of Mar. 9, 1978, Pub. L. No. 2, § 3112, 1978 Ind. Acts 2 (codified at Ind. Code

§ 31-5-7-14 (Supp. 1978)).



8 INDIANA LAW REVIEW [Vol. 12:1

or jeopardy has attached by the swearing of a witness after a denial

of the allegations.
52 This provision reflects the decision of the United

States Supreme Court in Breed v. Jones53 which applied the con-

stitutional provisions concerning double jeopardy to juvenile court

proceedings.

C. Rights and Effect of Adjudication (Chapter 3)

1. Rights of children. — After restating several basic rights that
children have in juvenile proceedings, the new code provides that a
child who is charged with a delinquent act is entitled to be
represented by counsel.54 This provision makes no distinction be-
tween acts that would be crimes if committed by an adult and status
offenses, a pattern that is generally reflected throughout the new
code. The provision is more important, however, because of what is
not stated and the ambiguities that thus remain. As a general rule,
a person is entitled to the assistance of counsel in a criminal pro-

ceeding only at the critical stages of the criminal process.55 The new
code simply provides that a juvenile has the right to counsel with no

attempt to set forth a list of the critical stages of the juvenile pro-

cess. This may indicate a legislative intent to allow the courts to
determine the critical stages on a case by case basis, or it may be in-
terpreted to mean that a juvenile is entitled to counsel throughout
the entire process. Furthermore, the provision refers only to

charges of delinquency and thus juveniles are not entitled to counsel
in dependency and neglect proceedings (now called proceedings to
determine whether a child is in need of services). Another provision
in the code, however, does give the court discretionary authority to
appoint counsel for juveniles in "any other proceeding."56

According to the code, a child is also entitled to "remain silent"
in juvenile court proceedings.57 An earlier draft of the code provided
that a child had the right to "refrain from self-incrimination" in
juvenile proceedings. As finally enacted, the code may be inter-
preted to mean that a child has the privilege against self-
incrimination in juvenile proceedings, or it may mean that a child
has even more protection than provided by the privilege against
self-incrimination. For example, the provision could be interpreted

52
Ind. Code § 31-6-2-4(e) (Supp. 1978).

58421 U.S. 519 (1975). See Walker v. State, 349 N.E.2d 161 (Ind.), cert denied, 429

U.S. 943 (1976).
m
Ind. Code § 31-6-3-l(b) (Supp. 1978).

<*See United States v. Wade, 388 U.S. 218 (1967); Winston v. State, 263 Ind. 8,
323 N.E.2d 228 (1975).

m
Ind. Code § 31-6-7-2(a) (Supp. 1978).

67/d § 31-6-3-l(b).



1979] SURVEY-FOREWORD 9

to mean that a child may not be required to give voice exemplars or
to speak for purposes of voice identification.58

2. Rights of adults. —As noted in the discussion of the purposes
of the code, an emphasis on the rights and obligations of parents ap-

pears throughout the new code. One of the major changes in the
new code is the provision that a parent has the right to appear in
his own behalf in a dependency or neglect proceeding (now called a
proceeding to determine if the child is a child in need of services).59

Thus both the child and the parent are parties to such proceedings
with independent rights to participate fully in the confrontation of

witnesses and the presentation of evidence. The code provides that
the parent has the right to counsel only in proceedings to terminate

the parent-child relationship, but the court is given discretionary

authority to appoint counsel for the parent "in any other

proceeding."
60

D. Proceedings Concerning Delinquent Children and Children in

Need of Services (Chapter k)

Chapter four, "Delinquent Children and Children in Need of Ser-
vices," and chapter seven, "Procedure in Juvenile Court," are the

primary chapters in the new juvenile code. Chapter four is pur-
portedly a substantive part of the code whereas chapter seven is ex-

pressly designated as procedural. Unfortunately, both chapters

reflect the difficulty, if not impossibility, of defining and separating

substance from procedure. For example, chapter four includes detailed

procedures for detention hearings61 whereas chapter seven includes

the provisions concerning venue.62 In fact, chapter four sets forth

the basic framework and format for proceedings in the juvenile
court, beginning with the definitions of delinquent children and

children in need of services and also including the procedures for

taking children into custody and adjudicating allegations concerning

them.

1. Definitions. —Major changes have been made in most of the
definitions concerning children subject to juvenile court jurisdiction

as compared to the prior statutes. Delinquency still includes
criminal acts and the traditional status offenses despite the growing

effort to remove status offenses from juvenile court jurisdiction.63

™See generally United States v. Dionisio, 410 U.S. 1 (1973); United States v.

Wade, 388 U.S. 218 (1967).
69
Ind. Code § 31-6-3-2 (Supp. 1978).

w
Ia\ § 31-6-7-2(b) (Supp. 1978). Contra, Davis v. Page, 442 F. Supp. 258, 263-64

(S.D. Fla. 1977).
61
Ind. Code §§ 31-6-4-5 to 6 (Supp. 1978).

62Jd § 31-6-7-7.
MSee Juvenile Justice Project, supra note 22, Standards Relating to



10 INDIANA LAW REVIEW [Vol. 12:1

The changes in the criminal acts have been discussed above, but

there are also significant changes in the definitions of the various

status offenses. Running away from home has been transferred from

the former dependency category
64 and is once again included as a

status offense under delinquency.
65 The new definition, however,

makes running away an offense only if the act is done without per-

mission and the parent then requests the child's return.
66

Incor-

rigibility, ungovernability, and being beyond the control of a parent

presumably are included within the offense of habitual disobedience

to a parent,
67 and thus the new code includes only the latter offense.

Even this offense has been modified, however, so that it covers only

habitual disobedience to "reasonable and lawful commands" of a
parent.68 Although the new emphasis on reasonableness of the com-
mands could lead to an increased involvement of juvenile courts in
internal family matters and even an unwarranted judicial supervi-

sion and limitation on traditional parental authority, hopefully the

courts will exercise judicial restraint and will limit this provision to

situations in which parents abuse or seriously misuse their parental

authority.
69 Habitual truancy continues to be a status offense

although the code now simply refers to the violation of the com-
pulsory school attendance law.70 Since the school attendance law pro-

vides for court action when a juvenile is habitually absent or a con-
firmed truant,71 there is in fact no change in this status offense.

Finally, the curfew provision has been substantially revised at least

to make it more understandable if not more enforceable.72

One of the most confusing changes in the code is the newly in-
troduced distinction between a "delinquent act" and a "delinquent
child." The code first states that a child "commits a delinquent act"
if he commits one of the five acts discussed above. The code then
provides that a child "is a delinquent child" if he (1) commits an act
that would be a crime if committed by an adult or (2) commits any of
the status offenses and also is in need of care, treatment, or

rehabilitation.
73 This might appear to be a reasonable distinction be-

Juvenile Delinquency and Sanctions 23 (Tent. Draft, 1977); National Advisory Com-
mittee, supra note 24, at 295.

m
Ind. Code § 31-5-7-5 (1976).

KId § 31-6-4-l(a)(2) (Supp. 1978).
"Id.

"See id § 31-5-7-4.1(a)(2) (1976).

"Id § 31-6-4-l(a)(4) (Supp. 1978).

"See National Advisory Committee, supra note 24, at 327.
70
Ind. Code § 31-6-4-l(a)(3) (Supp. 1978).

nId § 20-8.1-3-31 (1976).
^Compare id § 31-6-4-2 (Supp. 1978) with id § 31-5-7-4.1(a)(5).
78/d § 31-6-4-Kb).



1979] SURVEY-FOREWORD 11

tween delinquency based on criminal conduct and delinquency based
on status offenses, but the code later provides that the juvenile

court cannot authorize the filing of a petition or the taking of a child

into custody for delinquency based upon a criminal act unless the
court also finds that the child is in need of care, treatment, or
rehabilitation.

74 Since the end result thus appears to be the same for
delinquency based on a criminal act and delinquency based on a
status offense, the distinction should be eliminated in order to avoid
the possibility of confusion.

The most obvious change in the definitions section is the new
definition concerning children in need of services75 which replaces

the former definition of neglected children76 and eliminates the

former definition of dependent children.77 Despite recent warnings

that the use of labels such as "children in need of supervision" could

have a "potentially devastating effect on a child,"78 the General

Assembly followed the lead of a number of other states in adopting
the new definition.79 The drafters of the code intended to merge
both dependency and neglect into the new definition concerning
children in need of services,80 but their proposal was amended by
the General Assembly and the former definition of dependency was
eliminated completely. The primary distinction between dependency
and neglect under the former statutes was the nature of the
parent's responsibility in bringing about the child's condition. If the

parent was at fault, the child was a neglected child; if the parent
was not at fault, the child was simply a dependent child. As proposed
by the drafters of the code, the definition of a child in need of ser-

vices included a child "without necessary food, clothing, shelter,

medical care, or supervision" and a child "injured by the act or omis-

sion of his parent."
81 Dependency would have been covered by the

first provision, and neglect would have been covered by the second

provision since the proposed draft also defined "omission" so as to

involve the fault of the parent.82 The General Assembly's amend-
ment, however, incorporated a requirement of parental fault not

uSee id. § 31-6-4-9(b), (c). See also id. § 31-6-4-12U).
15Id § 31-6-4-3.
76ta § 31-5-7-6 (1976).
"M § 31-5-7-5.
™See National Advisory Committee, supra note 24, at 312.
79See Colo. Rev. Stat. § 19-1-103(5) (1973); Wis. Stat. Ann. § 48-12 (West Supp.

1978-79). See also N.Y. Jud. Law § 712 (McKinney Supp. 1977-78).
*°See Indiana Juvenile Code: Proposed Final Draft, supra note 9, at xi.
61Id at 22.
82"An omission is an occurrence in which the parent, guardian, or custodian allowed

his child to receive any injury which he had a reasonable opportunity to prevent or
mitigate." Id (enacted in the new code as Ind. Code § 31-6-4-3(b) (Supp. 1978)).



12 INDIANA LAW REVIEW [Vol. 12:1

only in the second provision but also in the first provision as well.

Thus the new code now provides that a child in need of services is a
child who is in need of care, treatment, or rehabilitation when the
child's physical or mental condition is substantially impaired by the

"refusal or neglect of his parent" to provide him with necessities or

when the child's physical health is seriously endangered "due to in-
jury by the act or omission of his parent."83

By enacting this provision, the General Assembly adopted a
revised definition that is in accord with the recent recommendation

of the National Advisory Committee on Criminal Justice Standards

and Goals that a parent's inability to care for a child because of

financial or social problems should be a basis for providing only

voluntary services and should not authorize a court's coercive in-

tervention.
84 At the same time, the General Assembly continued to

emphasize parental fault despite the Committee's recommendation

that parental fault should not be a consideration in determining

when a child is otherwise in need of services.85

The new definition also provides that a child in need of services
is a child who "substantially endangers his own health or the health
of another."86 Since this is included as a third alternative in a defini-

tion that otherwise stresses parental fault, the provision might be
interpreted to mean that a child is in need of services when he en-
dangers his own health or the health of another because of a lack of
parental care or supervision. If not, then the provision would appear
to give the juvenile court broad general discretion to provide
preventive care and treatment for a child, depending on the mean-
ing given to the term "health." In addition, the provision would ap-
pear to authorize the juvenile court to treat at least some delin-
quent children as children in need of services.

2. Detention. —A three step detention review process is
established by the new code and this process is to begin as soon as a
juvenile is taken into custody. Initially, the law enforcement officer

who takes a child into custody without a court order87 for an act of
delinquency based upon criminal acts must release the child to his
parent on the parent's written promise to bring the child to court,

"Ind. Code § 31-6-4-3 (Supp. 1978).
"National Advisory Committee, supra note 24, at 343.
K
Ia\

m
Ind. Code § 31-6-4-3 (Supp. 1978).
"The new code clarifies an issue that existed under the prior statutes by pro-

viding that a law enforcement officer may take a child into custody without a prior
court order when acting with probable cause to believe that the child has committed a
delinquent act. On the other hand, a child believed to be a child in need of services can
be taken into custody only if the officer does not have time to obtain a court order.

Ind. Code § 31-6-4-4 (Supp. 1978). See also id. § 31-5-7-12(c) (1976).



1979] SURVEY-FOREWORD 13

subject to four exceptions. The officer may detain the child if (1) the
child is unlikely to appear, (2) there is probable cause to believe that

the child has committed murder or a Class A or Class B felony, (3)
detention is essential to protect the child or community, or (4) the

parent cannot be located.88 The officer is thus required to review the
need for custody immediately after taking a juvenile into custody. A
similar duty existed under the prior statute which required the of-

ficer to release the child on the parent's written promise unless it

was "impracticable" to do so.89 Since "impracticable" was ambiguous,
the term was eliminated and the four specific exceptions were placed
in the code.

If the officer decides to detain the child in custody, the child is

delivered to an intake officer who is required to review the deten-
tion decision and to release the child, subject to the same four ex-
ceptions.

90
Finally, if the intake officer decides to detain the child, a

detention hearing must be held within forty-eight hours and the
juvenile court must review the decision to detain. The court,
however, must release the child on the parent's written promise
unless it finds that the child is unlikely to appear or that detention

is essential to protect the child or community.91 The other two ex-
ceptions were omitted, apparently by inadvertence, and should be
added by an amendment to the code.

The requirement of a detention hearing within forty-eight hours
is a distinct change from the prior statute which required a hearing

only if requested in writing by the child or some person on his
behalf.

92 This change probably was necessary in view of the United
States Supreme Court decision in Gerstein v. Pugh." Preventive
detention was authorized under the former statute94 and is con-
tinued under the new code despite the fact that it is not authorized
with reference to adult criminal defendants.95 The new code does not
authorize releasing a juvenile on bail, and the questionable provi-

sions in the prior statutes which purported to authorize bail96 were
repealed.97

"Id. § 31-6-4-5(a) (Supp. 1978).

™I<L § 31-5-7-12(a) (1976).

"Id. § 31-6-4-5(d) (Supp. 1978).
91
IcL § 31-6-4-5(f).
w
/d. § 31-5-7-12(b) (1976).

93420 U.S. 103 (1975). See Moss v. Weaver, 525 F.2d 1258 (5th Cir. 1976).
m
Ind. Code § 31-5-7-12(b) (1976).

^Hobbs v. Lindsay, 240 Ind. 74, 78-79, 162 N.E.2d 85, 88 (1959).
w
Ind. Code §§ 31-5-2-1, -5 (1976). These statutory provisions authorized bail for

juveniles, but they were questionable because they were remnants of the 1903 codifica-

tion of juvenile statutes. As such, they purported to authorize not only bail but also
trial by jury in juvenile cases, a provision that was clearly superseded and eliminated

by the 1945 codification. See Bible v. State, 253 Ind. 373, 254 N.E.2d 319 (1970); Ind.

Code § 31-5-7-15 (1976).
"Act of Mar. 10, 1978, Pub. L. No. 136, § 57, 1978 Ind. Acts 1196.



14 INDIANA LAW REVIEW [Vol. 12:1

A similar three-step process is established with reference to
delinquency based on status offenses and children in need of ser-

vices. A child who is taken into custody must be released unless (1)
shelter care is necessary to protect the child, (2) the child is unlikely

to appear, (3) the child does not want to be released to his parent, or

(4) the parent cannot be located.
98 In such cases, the same four ex-

ceptions are to be considered by the law enforcement officer, the in-

take officer, and the juvenile court.

3. Initiating formal action. —& juvenile proceeding may be in-
itiated under the new code when information concerning a delin-
quent child or a child in need of services is given in writing to the

juvenile court's intake officer." The officer is then to conduct a
preliminary inquiry which "is an informal investigation into the

facts and circumstances reported to the court." 100 By these provi-
sions, the General Assembly resolved two major issues that existed
under the prior statutes.

The first issue was concerned with the manner in which a
juvenile proceeding could be initiated. Under one of the prior
statutes, a juvenile court was authorized to conduct a preliminary
inquiry whenever it received "information" concerning a delinquent,
dependent, or neglected child.101 There was no provision in the
statute concerning the procedure for the giving of this information,

and there was no requirement that the information even be in
writing. A second statute, however, provided that a juvenile could
be brought before a juvenile court only by a "petition praying that
the person be adjudged delinquent or dependent or neglected" or by
transfer from a criminal court.102 These two statutes could have been
interpreted to require the following four steps in bringing a juvenile

before the juvenile court: (1) The giving of information to the court
in any manner; (2) the conducting of a preliminary inquiry concern-
ing the information; (3) the consideration of the preliminary inquiry

and authorization of a formal petition; and (4) the filing of a formal

petition. Instead of reaching this conclusion, however, the Indiana

Court of Appeals interpreted the two statutes together as requiring
a "petition" to initiate the preliminary inquiry as well as a subse-

quent, formal petition alleging delinquency, dependency, or
neglect.

103 The first petition was apparently an "informational peti-

m
Ind. Code § 31-6-4-6 (Supp. 1978).

w/d §§ 31-6-4-7(a), -8(a).
mId §§ 31-6-4-7(b), -8(b).
mId § 31-5-7-8 (1976).
mId § 31-5-7-7.
103Seay v. State, 337 N.E.2d 489 (Ind. Ct. App. 1975), rehearing denied, 340 N.E.2d

369 (1976).



1979] SURVEY-FOREWORD 15

tion" whereas the latter was the "formal petition" containing the
specific allegations in question.

In view of the confusion caused by the requirement of having

two "petitions" in each juvenile proceeding, the General Assembly
decided to adopt the four steps suggested above, with one modifica-

tion. As finally enacted, the new code authorizes the juvenile court
to conduct a preliminary inquiry after receiving information concern-

ing a juvenile, but the information must at least be in writing.104

There is no requirement that the writing be in the form of a peti-

tion, however, and the statute relied on by the court of appeals was
simply repealed and omitted from the new code.105 Thus it appears
that a written complaint, a letter, or even a police report would be

sufficient to justify the initiation of a preliminary inquiry.

The second issue was concerned with the nature of the
preliminary inquiry to be conducted by the court after receiving in-

formation concerning a juvenile. The prior statutes required a
"preliminary inquiry" and provided that the inquiry should include a

"preliminary investigation" into the facts and circumstances and the

juvenile's background "whenever practicable." 106 As interpreted by
the Indiana Court of Appeals, the preliminary inquiry and investiga-

tion were jurisdictional prerequisites for juvenile court action,107 but
there was no clear decision concerning the nature of the preliminary
inquiry and investigation or the difference, if any, between the in-
quiry and the investigation. Thus it was possible to interpret the
statute as requiring an informal investigation or information gather-

ing process followed by a formal preliminary inquiry or court hear-

ing to consider the propriety of authorizing a formal petition. The
issue was finally resolved in the code by the provision that a
"preliminary inquiry is an informal investigation," 108 although it

might have been better to eliminate the use of the term "inquiry"

altogether in order to avoid any possible confusion. Thus the intake
officer is to conduct an informal, information gathering investiga-

tion, and his report is to be considered by the court, ex parte, in

deciding whether to authorize the filing of a petition.
-4. Role of the prosecuting attorney. — After extensive debate,

the General Assembly reached a compromise concerning the role of
the presecuting attorney in juvenile proceedings. Under the prior
statutes, prosecutorial discretion in juvenile proceedings was exer-
cised by the juvenile court judge assisted by his probation officer.

104
Ind. Code §§ 31-6-4-7(a), -8(a) (Supp. 1978).

105Act of Mar. 10, 1978, Pub. L. No. 136, § 57, 1978 Ind. Acts 1196.
1w
Ind. Code § 31-5-7-8 (1976).

""Ingram v. State, 160 Ind. App. 188, 310 N.E.2d 903 (1974).
108
Ind. Code §§ 31-6-4-7(b), -8(b) (Supp. 1978).



16 INDIANA LAW REVIEW [Vol. 12:1

The probation officer conducted the preliminary inquiry which was

then submitted to the judge for consideration. If appropriate, the

judge would then authorize the probation officer to file a petition

concerning a delinquent, dependent, or neglected child.
109 No

reference was made in the juvenile statutes concerning the role of
the prosecuting attorney, and the practice therefore varied from

court to court. Reflecting the recent trend,
110 the General Assembly

removed the prosecutorial function from the judge but compromised

by dividing the function between the prosecuting attorney and the

county welfare attorney. As a minimal requirement, the code re-
quires the prosecutor to handle all delinquency cases involving acts

that would be crimes if committed by an adult.111 Either the pros-

ecutor or the county welfare attorney may handle status offenses112

and allegations concerning children in need of services.113 No
guidance is given in the code concerning the division of authority in

the latter two types of cases, but the code does provide that the
decision of one office concerning children in need of services is final

only as to that office.
114 Otherwise, the code provides only that the

person who requests authorization to file a petition must thereafter
represent the interests of the state in all subsequent proceedings on

the petition.115 The role of the person representing the state is fur-
ther strengthened by a final provision that the court must dismiss
any petition upon motion of the person representing the state.116

This may even be stronger than the authority given to a prosecutor
in criminal cases since the prosecutor must at least state the
reasons for his motion to dismiss a criminal indictment or informa-
tion.

117

5. Informal adjustment. — Various organizations have recently
recommended that pre-adjudicatory programs for diversion and in-
formal adjustment should be strengthened but that the authority for

such programs should be given to agencies other than the courts.118

Despite such recommendations, the General Assembly enacted a
legal basis for court-sanctioned informal adjustments which un-

m
Ia\ § 31-5-7-8 (1976).

110Juvenile Justice Project, supra note 22, Standards Relating to Prosecution
25 (Tent. Draft, 1977); National Advisory Committee, supra note 24, at 503.

1u
Ind. Code § 31-6-4-7(d) (Supp. 1978).

n2
Ia\ § 31-6-4-9(a).

113/d § 31-6-4-10(a).
lu/d § 31-6-4-8(c).
m/d §§ 31-6-4-9(a), -10(a).
ut
Ia\ § 31-6-4-11.

nl
Ia\ § 35-3.1-l-13(a) (1976).

""Juvenile Justice Project, supra note 22, Standards Relating to the
Juvenile Probation Function 33 (Tent. Draft, 1977) National Advisory Committee,
supra note 24, at 216, 655.



1979] SURVEY-FOREWORD 17

doubtedly were being utilized by juvenile courts as a general prac-

tice. The original draft of the juvenile code would have placed infor-
mal adjustments under the control of the prosecutor or county

welfare attorney, 119 but this was changed before the proposed code

was submitted to the General Assembly. As enacted, the code
authorized the courts to approve a program of informal adjustment

by the court's intake officer after completion of the preliminary in-

quiry. Three basic protections are included in the provision for the

benefit of the juveniles involved. The primary requirement is that
the intake officer have probable cause to believe that the juvenile is

subject to juvenile court jurisdiction. In addition, the child and his

parent must consent to the program and the program is limited to a
period of six months.120 There is no provision, however, to ensure

that no action can be taken on the allegations involved once the

juvenile has completed the program of informal adjustment.121

6. Hearings. —The code provides for an initial hearing on the
petition, a fact-finding hearing, and a dispositional hearing to com-

plete the processing of juvenile cases. The term "initial hearing" on
the petition reflects the difficulty in choosing an appropriate name
for this hearing.

122 Other terms have been suggested, including "in-

itial appearance"123 and "arraignment," 124 but there are difficulties

with both of these terms since the juvenile may in fact have ap-
peared in court at an earlier time in a detention hearing and the

term "arraignment" has specific criminal court connotations. In any

event, the code provides detailed procedures for conducting the

initial hearing on the petition125 which in fact is quite similar to an

arraignment in a criminal proceeding.126

A fact-finding hearing is the equivalent of a criminal trial and is
to be held separately from the initial hearing, except that it may be
held immediately after the initial hearing with the consent of the

juvenile and his counsel or parent.127 At the close of the evidence in
the fact-finding hearing, the court is authorized to withhold judg-

ment and continue the case for six months unless the child or his
parent requests the court to enter the judgment.128 This is a substan-

U9Indiana Juvenile Code: Proposed Final Draft, supra note 9, at 40.
120
Ind. Code § 31-6-4-12 (Supp. 1978).

12lSee generally Juvenile Justice Project, supra note 22, Standards Relating
to the Juvenile Probation Function 33.

122
Ind. Code § 31-6-4-13(a) (Supp. 1978).

123Juvenile Justice Project, supra note 22, Standards Relating to Pretrial
Court Proceedings 48 (Tent. Draft, 1977).

124National Advisory Committee, supra note 24, at 383.
125
Ind. Code § 31-6-4-13 (Supp. 1978).

mSee id. § 35-4.1-1-1 (1976).
127/d § 31-6-4-13(h) (Supp. 1978).
128/d § 31-6-4-14(e).



18 INDIANA LAW REVIEW [Vol. 12:1

tial change from the prior statute which authorized the court to

withhold judgment for two years or for ninety days even when the

juvenile requested the entering of a judgment.
129 At the same time,

the General Assembly did not agree with the view that a juvenile

court should have no authority at all to withhold judgment.
130

The dispositional hearing completes the adjudicatory process

and is not to be held until after a predisposition report has been

prepared by the court's probation officer or caseworker.
131

If the

court concludes that the juvenile is mentally ill or developmentally

disabled, it may continue the dispositional hearing and refer the
juvenile to the appropriate court, such as the probate court, which

handles such matters.
132

7. Dispositional alternatives. —Yomt major changes concerning
dispositional alternatives are included in the new code. First, the
new code prohibits the placement of juveniles in a secure facility
unless they have been adjudicated delinquent for committing an act

that would be a crime if committed by an adult.133 Thus the General
Assembly extended to status offenders the protection which had

been given to dependent and neglected children two years earlier.134

This change is consistent with the growing national trend in this

direction.
135 The second major change points to the opposite direc-

tion and authorizes the confinement of juveniles who commit
criminal acts to serve ten days in confinement in the juvenile part of

the county jail, on either a continuous or an intermittent basis.136

The original proposal which was submitted to the General Assembly
would have authorized confinement for a period of thirty days,137 but
this was ultimately amended during the legislative session and was
reduced to ten days.

m
I<L § 31-5-7-15 (1976).

mSee Juvenile Justice Project, supra note 22, Standards Relating to Ad-
judication 64 (Tent. Draft, 1977).

181
Ind. Code § 31-6-4-15(a) (Supp. 1978).

137d § 31-6-4-16(c).
m

Ia\ § 31-6-4-16(e). By enacting this provision, the General Assembly took one of
the steps which was necessary to make the state eligible for federal funds under the
Juvenile Justice and Delinquency Prevention Act of 1974, 42 U.S.C. § 5601 (1976). In
order to be eligible for funds under the Act, the state must provide that dependent or
neglected children and juveniles charged with offenses that would not be crimes if
committed by an adult may not be placed in juvenile detention or correctional facilities
but must be placed in shelter care facilities. 42 U.S.C. § 5633(a)(12) (Supp. 1978).

mSee id. §§ 31-5-7-12.2, 20-8.1-3-31 (1976).
mSee Juvenile Justice Project, supra note 22, Standards Relating to Non-

criminal Misbehavior 55 (Tent. Draft, 1977); National Advisory Committee, supra
note 24, at 480.

1m
Ind. Code § 31-6-4-16(g)(5), (h) (Supp. 1978).

187Indiana Juvenile Code: Proposed Final Draft, supra note 9, at 49.



1979] SURVEY-FOREWORD 19

A provision for the emancipation of a juvenile upon his request
is the third major change in the code. This provision authorizes the

court to emancipate a child, partially or completely, if the child

wishes to be free from parental control, no longer needs parental

control or protection, and is able to support himself independently.138

It is based on the recommendation of the National Advisory Com-
mittee on Criminal Justice Standards and Goals,139 but it should be

seriously reconsidered by the General Assembly. The National Ad-
visory Committee's commentary suggests that the authority should
not be exercised unless "all other available resources to achieve

family harmony have been tried and have failed," 140 but this limita-
tion is not embodied in the provision in any form. Thus, the provi-
sion authorizes court action in favor of a juvenile who wishes to be
free of parental control without any apparent duty to consider the

interests or rights of the parents involved.

The final major change introduces the concept of family par-
ticipation in the dispositional phase of the juvenile proceeding.

Under this provision, the parent, guardian, or custodian of a child
may be required to obtain assistance in fulfilling his parental obliga-
tions, provide special care or treatment for the child, or work with a
person who is providing care or treatment for the child.141 This also
follows the recommendation of the National Advisory Committee142

and should strengthen the ability of a juvenile court in its efforts to
provide needed care and treatment for juveniles.

8. Review of dispositional orders. — Three separate provisions
in the new code provide for the subsequent review and modification
of a juvenile court's dispositional orders. In the jurisdictional sec-

tion, it is provided that a juvenile continues subject to the court's

jurisdiction until reaching twenty-one years of age unless the court

orders otherwise or guardianship of the child is awarded to the
department of correction.143 This is essentially the same as the provi-
sion in the prior statute.

144 The new code adds, however, that the
department of correction may request a modification of the judg-
ment, presumably concerning a juvenile committed to its custody.145

A second provision appears in the code's procedural chapter and
provides that the court may modify its dispositional order at any
time while it continues to retain jurisdiction, upon either its own

138
Ind. Code § 31-6-4-16(e)(5) (Supp. 1978).

"'National Advisory Committee, supra note 24, at 482.
140Jd
u1
Ind. Code § 31-6-4-16U) (Supp. 1978).

142National Advisory Committee, supra note 24, at 480.
143
Ind. Code § 31-6-2-3 (Supp. 1978).

lu
Ia\ § 31-5-7-7 (1976).

146/d § 31-6-2-3(b) (Supp. 1978).



20 INDIANA LAW REVIEW [Vol. 12:1

motion or the motion of the child or other specific interested per-

sons.
146 This provision is also essentially the same as in the prior

statute, although the number of persons authorized to request

modification appears to be increased somewhat.
147

The primary change, however, appears in the new provision of
the code which mandates a continuing review of the court's disposi-

tional orders. Under this provision, the court must hold a formal

hearing at least once every eighteen months after entering a

dispositional order to determine if the disposition is meeting the

court's objectives and should be continued or modified.
148

If the ob-

jectives have in fact been accomplished, the juvenile must be

discharged.
149 Furthermore, the court must hold the hearing every

six months after any dispositional order is entered that removes a

child from his parent, and the state must show that the child should
not be returned to his parent.150 Finally, the probation department

must prepare a report on the progress of all juveniles every six
months, regardless of the nature of the dispositional order.151 These

provisions make no distinctions between delinquent children and
children in need of services and thus appear to extend far beyond
the recent recommendations which would require a six-month
review only in those cases other than delinquency based on criminal

misconduct.152 The General Assembly should seriously reconsider the
effect of these provisions, especially with reference to delinquency

based on criminal misconduct.

E. Termination of the Parent-Child Relationship (Chapter 5)

Whereas the prior juvenile statutes authorized the termination
of parent-child relationships in neglect or dependency proceedings
only if the parents were at fault or otherwise unable to provide care
for their children,

153 the new code contains provisions which are
essentially in accord with the recent recommendation of the Na-

lu
l<L § 31-6-7-16.

M7d § 31-5-7-17 (1976).
148/d § 31-6-4-19 (Supp. 1978).
U9

IcL § 31-6-4-19U).
mId § 31-6-4-19(d). Although this provision does not specifically state that there

must be a formal hearing, it does provide that the state must show that the child
should not be returned to the parent.

157d § 31-6-4-19(b).
1S2Juvenile Justice Project, supra note 22, Standards Relating to Non-

criminal Misbehavior 58 (Tent. Draft, 1977); National Advisory Committee, supra
note 24, at 496. Compare Juvenile Justice Project, supra note 22, Standards
Relating to Disposition 126 (Tent. Draft, 1977); National Advisory Committee,
supra note 24, at 475.

188
Ind. Code §§ 31-5-7-5 to 6 (1976). See generally In re Perkins, 352 N.E.2d 502

(Ind. Ct. App. 1976).



1979] SURVEY-FOREWORD 21

tional Advisory Committee to make the interests of the child the
primary concern in termination decisions.154 Thus the code provides

for the termination of the relationship over the objections of the

parent if the child has been removed from the parents for a period

of six months and termination would be in the best interests of the

child. At the same time, parental rights are still somewhat protected
by two requirements. Termination is proper only if (1) there is a
reasonable probability that the conditions resulting in removal of

the child will not be remedied and (2) reasonable services have been

offered to help the parent fulfill his parental obligations and have

been refused or ineffective.155

These provisions may be a reasonable compromise in balancing
the competing interests between a child and his parents, but the

General Assembly has introduced a new provision that is highly
questionable at best. Under this provision, a county welfare depart-
ment is required to file a petition for termination whenever re-
quested to do so by the parents. Termination may then be ordered if
it is in the child's best interest,

156 and the rights and duties of the

parents will be permanently terminated, including the duty of sup-

port.
157 Such a provision could be of value in certain cases, but as a

general rule parents should be encouraged by legislative action to
fulfill their parental obligations, not to avoid them. Action should be

taken to enforce parental obligations, even to the extent of imposing

criminal sanctions when necessary, and parents should not be able
to require the filing of a petition to transfer their support obliga-

tions to someone else simply upon their request.

F. Paternity (Chapter 6)

The former statutory provisions concerning paternity actions, or
actions concerning children born out of wedlock,158 are now included
in the new juvenile code.159 Although numerous changes have been
made in the provisions, the changes are primarily in matters of form
and style. In addition, some changes reflect an effort to distinguish
between matters of substance and procedure. For example, the pro-
visions concerning venue160 have been transferred from the general
chapter concerning paternity to the chapter on procedure in juvenile

courts.
161 Likewise, the provisions concerning the right to demand a

1mNational Advisory Committee, supra note 24, at 500.
165
Ind. Code § 31-6-5-4 (Supp. 1978).

m
I<L § 31-6-5-2.

167/d § 31-6-5-3(2).
1M/d §§ 31-4-1-1 to 33 (1976).
m
Ia\ §§ 31-6-6-1 to 22 (Supp. 1978).
m

Ia\ §§ 31-4-1-8, -10 (1976).
m
Ia\ § 31-6-7-7(b) (Supp. 1978).



22 INDIANA LAW REVIEW [Vol. 12:1

jury trial, 162 competency of the parties to testify,163 and contempt
proceedings164 have been transferred to the procedural chapter.

Nevertheless, a few basic changes are reflected in the new code.
Thus the provisions concerning the persons who could attend pater-
nity hearings165 have been transferred to the procedural chapter but

have been substantially revised. In the revised form, the court has

the discretion to exclude the public from paternity hearings instead

of being required to do so.166 Furthermore, the new code omits the
former provision that appeals were to be in accordance with the
rules for the appeal of civil cases.167 As provided in the new code, ap-
peals in juvenile proceedings may be taken "under the Indiana Rules
of Trial Procedure, the Indiana Rules of Criminal Procedure, or the

Indiana Rules of Appellate Procedure."168 Finally, the new code also
eliminates any change of venue from the county in paternity actions,

except that the court has discretion to transfer the case to the county

of the child's residence at the mother's request.169

G. Procedure in Juvenile Court (Chapter 7)

1. Rules of procedure. — Possibly indicating the extent of the
controversy and the importance attached to the issue, the General

Assembly finally enacted two separate provisions concerning the
rules of procedure to be followed in juvenile courts. The first provi-
sion applies the rules of criminal procedure to all delinquency pro-

ceedings, including status offenses, and to criminal charges involving

adults who are tried in juvenile court. All other juvenile court pro-
ceedings are to be governed by the rules of trial procedure (civil

rules).
170 A subsequent provision is concerned specifically with the

rules of discovery and applies the criminal and civil rules in the

same manner to the various types of proceedings.171

Thus the General Assembly purported to resolve the uncertain-
ty that existed under prior statutes despite recent recommendations

that specialized rules should be developed for juvenile court pro-

ceedings instead of applying the criminal or civil rules as such. For

example, the National Advisory Committee concluded: "Many
jurisdictions use civil or criminal rules in an attempt to fill these

'"Compare id. § 31-4-1-16 (1976) with id. § 31-6-7-10(c) (Supp. 1978).

'"Compare id. § 31-4-1-16 (1976) with id. § 31-6-7-13(d) (Supp. 1978).

'"Compare id. §§ 31-4-1-20, -24 (1976) with id. § 31-6-7-15 (Supp. 1978).
m

Ia\ §§ 31-4-1-8, -16 (1976).
lM

Ia\ § 31-6-7-10(b) (Supp. 1978).
m

Ia\ § 31-4-1-18 (1976).
197d § 31-6-7-17 (Supp. 1978).
169/d §§ 31-6-7-7(c), -8(c).
170/d § 31-6-7-1.
in

Ia\ § 31-6-7-11.



1979] SURVEY-FOREWORD 23

procedural gaps. But family court business differs significantly from

civil and criminal business, and attempts to apply rules designed for

the latter systems to family court processes may result in more con-
fusion than clarity." 172 Hopefully, the new code provisions will help
to clarify the nature of juvenile proceedings in Indiana, but difficult

questions can still be expected to arise. For example, should the

civil rules be applied so as to permit the deposing of the defendant

in a paternity action or a parent who is a party to a proceeding to
declare his child a child in need of services? Likewise, should a child

who is a party to juvenile court proceedings be entitled to see all of
the reports and statements obtained from relatives and neighbors

during the course of the proceedings? These and similar questions

will undoubtedly still have to be resolved by the Indiana appellate

courts on a case by case basis.

2. Waiver of rights. —During the past ten years, Indiana's ap-
pellate courts have developed stringent rules to protect juveniles

from improper interrogations by law enforcement officials. Thus a
juvenile must be advised of his rights before being interrogated, but
his parents must also be advised of his rights and he must have an
opportunity for meaningful consultation with his parents before

deciding to waive his rights.173 The new code now appears to take
the final step in protecting a juvenile by providing that the

juvenile's rights can be waived only by his parents or attorney.174

The United States Supreme Court suggested in In re Gault175 that
special precautions should be taken to protect juveniles, but it is

doubtful that the protections enacted in the new juvenile code were
in any way contemplated by the Court. In fact, both of the recent
major studies concerning juvenile proceedings recommend special
protection for juveniles but conclude that a juvenile may waive his
rights under appropriate circumstances.176

3. Speedy trial rules.— Although the federal constitution does
not mandate specific time limits in protecting a criminal defendant's
right to a speedy trial, 177 provisions for specific time limits have

been adopted for both federal178 and Indiana179 criminal proceedings.

172National Advisory Committee, supra note 24, at 288. See also Juvenile
Justice Project, supra note 22, Standards Relating to Pretrial Court Pro-
ceedings 55, 62 (Tent. Draft, 1977) (recommends "full and free" discovery in delinquen-

cy cases that is essentially similar to criminal discovery but in some respects provides
even more discovery than in criminal cases).

173Garrett v. State, 351 N.E.2d 30 (Ind. 1976).
174
Ind. Code § 31-6-7-3 (Supp. 1978).

m387 U.S. 1, 45, 55 (1967).
"'Juvenile Justice Project, supra note 22, Standards Relating to Interim

Status 67 (Tent. Draft, 1977); National Advisory Committee, supra note 24, at 212.
177Barker v. Wingo, 407 U.S. 514, 523 (1972).
178
18 U.S.C. § 3161 (1976).

179
Ind. R. Cr. P. 4.



24 INDIANA LAW REVIEW [Vol. 12:1

The new juvenile code now adopts similar speedy trial rules for
delinquency proceedings. No rules are specified for proceedings in-
volving children in need of services, however, apparently because

these proceedings are to be considered as essentially civil in nature.

If a child "is in custody," the new code provides that a petition
alleging delinquency must be filed within seven days after the child
was taken into custody.180 No similar provision is included in the In-
diana Rules of Criminal Procedure for the filing of an indictment or

information, and the meaning of the juvenile provision itself is
unclear. The provision may be interpreted to mean that a petition
must be filed within seven days if a juvenile has been taken into
custody and is still being detained in a detention center. If this in-

terpretation is correct, then the code does not include any time limit

for the filing of a delinquency petition after a child has been taken

into custody and then promptly released to his parents. In such

case, the only limitation would be the subsequent provision that a

juvenile cannot be held to answer a delinquency charge for more
than one year, apparently from the date that he was taken into
custody and then released.181 This ambiguity arises because the word
"custody" appears twice in the provision, possibly having different

meanings for each usage, and should be clarified by an amendment
to the provision.

The code also provides time limits for the holding of fact-finding
and waiver hearings, and the time limits vary depending on whether

the child is or is not in custody.
182

Finally, the code provides that a

child may not be held, presumably in custody, for more than six
months in the "aggregate" pending an adjudication183 and may not
be held to answer a charge for more than one year in the "ag-
gregate," presumably when not in custody.184 These provisions ap-
pear to reflect the basic time limits included in the criminal rules,

but their effect is uncertain because of the other provisions which

prescribe specific time limits for the various hearings, as noted

above. These provisions need to be revised to clarify the manner in
which the time limits interrelate.

One other provision in the speedy trial rules makes a major
change in the prior law and appears to be in conflict with the

related provisions in Criminal Rule 4. Under the prior law, a

180
Ind. Code § 31-6-7-6U) (Supp. 1978).

m
Id. § 31-6-7-6(f). This section does not refer to a starting date for the one year

period, but it follows immediately after a provision for a six month period which does

refer to the time the juvenile was taken into custody.
182/d § 31-6-7-6(b), (c).
188/d § 31-6-7-6(e).
18Vd § 31-6-7-6(f).



1979] SURVEY-FOREWORD 25

juvenile who was waived to the criminal court was then subject to
the provisions of Criminal Rule 4. According to that rule, the

juvenile would then have to be brought to trial within six months or

a year from the date that an indictment or information was filed
against him in the criminal court, depending on whether he was

kept in custody pending the trial. Criminal Rule 4 does not prescribe

any time limit for the filing of a formal charge, however, and thus a

juvenile could apparently be detained in custody for an indefinite

period of time pending the filing of the formal charge. In State v.

Roberts™ the Indiana Court of Appeals concluded that Criminal
Rule 4 should be construed to require the filing of a formal charge

in the criminal court within a reasonable period of time after a

waiver order and found a fifty day delay to be unreasonable. The
new code purports to resolve the problem in a different manner by
providing that "the computation of time under Criminal Rule 4 com-

mences on the date of the waiver order." 186 Such a provision would

be contrary to the provisions of Criminal Rule 4 which provides that

the time limits run from the date that a charge is filed or from the

date that the defendant is arrested, whichever is later. Thus the
statutory provision would apparently be invalid unless the Indiana

Supreme Court would decide to adopt it as a procedural rule.187

k. Change of venue and change of judge, — As noted previously,
the venue provisions are included in the procedural chapter despite
the controversy over whether they are in fact substantive or pro-
cedural. The new provisions make a distinct change in the law con-
cerning juvenile proceedings by providing that proceedings concern-
ing delinquent children or children in need of services may be com-
menced in the county where the child resides or in the county where
the act occurred.

188 Under the prior law, the proceedings could be
commenced only in the county where the child resided or was
found.

189 Furthermore, the new code changes the prior law concern-
ing change of venue from the county190 by providing that there is to
be no change of venue from the county except that the court has
discretion to transfer the case to the county of the child's

residence.
191

Finally, the code provides that a change of judge may
be obtained only upon a showing of good cause.192 This provision ap-

186358 N.E.2d 181 (Ind. Ct. App. 1976).
1m
Ind. Code § 31-6-7-6(d) (Supp. 1978).

1B1See Neeley v. State, 261 Ind. 434, 305 N.E.2d 434 (1974).
188
Ind. Code § 31-6-7-7(a) (Supp. 1978).

m
Id. § 31-5-7-8 (1976).

190See State ex rel Dunn v. Lake Juvenile Court, 248 Ind. 324, 228 N.E.2d 16
(1967).

191
Ind. Code §§ 31-6-7-7(c), -8(a) (Supp. 1978).

192/d § 31-6-7-9.



t,s>

26 INDIANA LA W REVIEW [Vol. 12:1

parently applies to all proceedings in the juvenile court and is one of

the most significant changes193 in the entire code since the automatic

change of judge rule has been a longstanding general practice in

Indiana in both civil194 and criminal195 cases.

5. Public hearings, juries, and burden of proof. — The new code
continues to give the juvenile court judge the discretion to deter-

mine whether the public should be admitted to juvenile pro-

ceedings196 despite recent recommendations that delinquency pro-

ceedings should be open to the public.197 Likewise, the code con-

tinues to provide that juvenile proceedings are generally to be tried

by the court198 even though some sentiment has developed that
juveniles charged with delinquency should have the right to request

a jury trial. 199 The new code does contain one questionable provision
concerning juvenile court trials, however. It provides that adults

who are tried in juvenile court on criminal charges are to be tried
by the court unless they request a jury trial.200 This provision ap-

pears to be contrary to the conclusion of the Indiana Supreme Court
in State ex rel Rose v. Hoffman,201 a case involving an adult tried in
juvenile court for contributing to the delinquency of a minor. In that

decision, the court concluded that the Indiana constitution requires a

judge in a criminal case "to assume that a defendant will want a
jury trial." 202 Finally, the code purports to change the prior law by

providing that an adjudication of delinquency based on a status of-

fense must be based on proof beyond a reasonable doubt.203 Since the
provision is contrary to a decision of the Indiana Supreme Court,204

its effect will be in doubt until the court either adopts the provision

or finds that it relates to a matter of substance rather than pro-

cedure.205

193See State ex rel Duffy v. Lake Juvenile Court, 238 Ind. 404, 151 N.E.2d 293

(1958).
1m
Ind. R. Tr. P. 76.

195
Ind. R. Cr. P. 12.

^Compare Ind. Code § 31-6-7-10(b) (Supp. 1978) with id. § 31-5-7-15 (1976).
191See Juvenile Justice Project, supra note 22, Standards Relating to Ad-

judication 70 (Tent. Draft, 1977); National Advisory Committee, supra note 24, at
420.

^Compare Ind. Code § 31-6-7-10(c) (Supp. 1978) with id. § 31-5-7-15 (1976). See Bi-
ble v. State, 253 Ind. 373, 254 N.E.2d 319 (1970).

imSee Juvenile Justice Project, supra note 22, Standards Relating to Ad-

judication 52. But see National Advisory Committee, supra note 24, at 420.

^Ind. Code § 31-6-7-10(c) (Supp. 1978).
M1227 Ind. 256, 85 N.E.2d 486 (1949).

™Id. at 262, 85 N.E.2d at 488. See also Kindle v. State, 161 Ind. App. 14, 20, 313

N.E.2d 721, 725 (1974).

""Ind. Code § 31-6-7-13(a) (Supp. 1978).
^Warner v. State, 254 Ind. 209, 258 N.E.2d 860 (1970).
mSee Neeley v. State, 261 Ind. 434, 305 N.E.2d 434 (1974). The General Assembly



1979] SURVEY-FOREWORD 27

6. Examinations of a juvenile. — Under the prior juvenile
statutes, a court could require a juvenile to be examined by a physi-

cian, psychiatrist, or psychologist for the purpose of providing need-

ed medical, surgical, or psychiatric care or to determine if the

juvenile should be committed because of a mental defect or

disorder.
206 The new code contains a revised version of this provision

and authorizes medical, psychological, psychiatric, social, or educa-

tional examinations to determine if a petition should be filed or to

provide information necessary for a fact-finding hearing.207 In this

revised form it is doubtful if the provision is constitutionally valid,

at least with reference to juveniles charged with an act of delin-

quency, especially since the provision would permit the juvenile to

be placed in temporary confinement for fourteen days in order to

complete the examinations.208

A juvenile is entitled to the privilege against self-incrimination,
at least in delinquency proceedings in which the juvenile is charged

with an act that would be a crime if committed by an adult.209

Therefore, it appears that a juvenile so charged could not be ex-

amined for the purpose of obtaining information to be used at the

fact-finding hearing. It is even doubtful if such a juvenile could be

subjected to "social or educational" examinations to determine if a

petition should be filed. Possibly the provision could be valid to the

extent that it would authorize examinations to determine mental
competency to participate in the juvenile proceedings,210 but the pro-
vision appears to need a substantial revision in order to eliminate

the constitutional questions concerning it.

7. Appeals. — The procedural chapter concludes with the state-
ment that appeals may be taken from any final order of the court
under the civil rules, criminal rules, or appellate rules.211 No
guidance is given concerning the definition of a final order or the

types of proceedings to which the various rules apply. In particular,

the code does not decide whether a waiver order is a final, ap-

pealable order or an order which cannot be appealed until after a

conviction in the criminal court.
212

apparently considers the burden of proof to be a matter of procedure since it placed

this provision in the procedural chapter of the code.

"•Ind. Code § 31-5-7-21 (1976).
mId § 31-6-7-12(a) (Supp. 1978).
m

I<L § 31-6-7-12(c).
mIn re Gault, 387 U.S. 1 (1967).
210See Juvenile Justice Project, supra note 22, Standards Relating to Interim

Status 61; National Advisory Committee, supra note 24, at 468.
211
Ind. Code § 31-6-7-17 (Supp. 1978).

n2See Juvenile Justice Project, supra note 22, Standards Relating to
Transfer Between Courts 49 (Tent. Draft, 1977) (recommends that an appeal be
authorized within seven court days after a waiver is ordered).



28 INDIANA LAW REVIEW [Vol. 12:1

H. Juvenile Records (Chapter 8)

Juvenile records continue to be confidential records under the

code which contains specific provisions concerning the persons

authorized to inspect such records and the procedures by which con-

fidentiality is to be maintained.213 The code also includes a simplified
expungement procedure by which any person may petition the
juvenile court at any time to expunge records pertaining to his in-

volvement in juvenile court proceedings. The court is given broad
discretion to grant the order and may order the records to be
destroyed or given to the person to whom they pertain.214

/. Juvenile Court Administrative Provisions (Chapter 9)

The code contains a number of administrative provisions which
authorize juvenile courts to appoint referees, reporters, and proba-

tion officers, to establish detention and shelter care facilities, and to

assess certain court costs.
215

J. Interstate Compact on Juveniles (Chapter 10)

The juvenile code concludes with a reenactment of the interstate
compact on juveniles216 which was originally adopted by the General
Assembly in 1957.217 Three new amendments have also been added
to the compact, including provisions for the return of runaways, the

return of juveniles charged with delinquency based on criminal acts,

and the confinement of a juvenile in another state.218

K. Conclusion

The Indiana General Assembly has taken the initial step toward
giving the state its first major revision of the juvenile code in over

thirty years. Two additional steps need to be taken, however, by the
General Assembly and the Indiana Supreme Court before the new
code becomes effective on October 1, 1979. Assuming that the code
is not repealed in the next legislative session, the General Assembly
needs to clarify certain provisions, reconsider other provisions, and

consider adding additional provisions to the code. At the same time,
the supreme court will have to adopt the procedural provisions of

213
Ind. Code § 31-6-8-1 (Supp. 1978).

2uId § 31-6-8-2.
m

I<L §§ 31-6-9-1 to 6.

™I<L §§ 31-6-10-1 to 4.

"'Interstate Compact on Juveniles, ch. 98, 1957 Ind. Acts 156 (codified at Ind.

Code § 31-5-3-1 (1976)).
218
Ind. Code § 31-6-10-1 (Supp. 1978). By a separate statute, the 1978 General

Assembly also enacted the Interstate Compact on the Placement of Children, Pub. L.

No. 72, 1978 Ind. Acts 955 (codified at Ind. Code § 12-3-1-1 (Supp. 1978)).



1979] SURVEY-FOREWORD 29

the code as court rules or the effect of much of the code will be left
in doubt for some time to come.219

If the code does become effective, it will make a number of
substantial changes in the state's juvenile justice system. Some of
the more significant changes relate to the role of the prosecuting at-
torney, the codification of informal adjustment procedures, the

clarification and revision of the investigation and petition pro-

cedures, the new rules concerning change of judge and change of
venue, and the new emphasis on the participation of parents in the
adjudicatory and dispositional phases of the proceedings. At the
same time, the code contains certain other changes that the General
Assembly should seriously reconsider. These include the provisions
concerning emancipation of a juvenile, termination of the parent-

child relationship, time limits on the adjudicatory process, and

review of dispositional orders. In addition, the General Assembly
should clarify the provisions concerning the definitions of delinquen-

cy and children in need of services, the rules of procedure to be

followed in the various proceedings, and the inconsistent positions

taken with regard to murder and waiver. Finally, action should be
taken to add provisions that were omitted from the code, including
provisions concerning dependency, the release of juveniles on bail,

the insanity defense in juvenile proceedings, and appellate pro-

cedures with particular reference to the appeal of waiver orders and

the rules to be followed on appeals.

Although this codification is referred to as the "juvenile code,"220

the term is not used in the statute. The term was used, however, in
the statute which originally established the juvenile justice division

of the judicial study commission and authorized it to "study and

make recommendations for changes in the present substantive
juvenile code."

221 Assuming that the term will continue to be used, it
is necessary to recognize that the code does not include all of the

state's statutory provisions concerning juveniles. Provisions concern-

ing child support,222 child welfare,
223

truancy,
224 and adoption225 are

still included in other titles or sections of the Indiana general

219See Neeley v. State, 261 Ind. 434, 305 N.E.2d 434 (1974).

^The Juvenile Justice Division, which proposed the changes in the law, entitled
its proposal "Indiana Juvenile Code."

aiAct of Apr. 30, 1975, Pub. L. No. 2, § 3, 1975 Ind. Acts 2, 5 (codified at Ind.

Code § 2-5-8-4(7) (1976) (amended 1978)). When the 1978 General Assembly decided to
continue the work of the juvenile justice division, it amended this provision and
substituted the term "juvenile law" for "juvenile code." Act of Mar. 9, 1978, Pub. L.
No. 6, § 2, 1978 Ind. Acts 638, 639.

^Ind. Code §§ 12-1-6.1-1 to 20 (1976).
mId §§ 12-1-7-1 to 50.
™I<L §§ 20-8.1-3-1 to 37.

™I<L §§ 31-3-1-1 to 12.



30 INDIANA LA W REVIEW [Vol. 12:1

statutes. The General Assembly will undoubtedly need to consider

each of these areas carefully in order to decide what, if any, revi-

sions are needed and whether any of the provisions should be includ-

ed in the new code.

II. Administrative Law

Gary P. Price*

A. Administrative Fact-Finding

In last year's administrative law Survey discussion, the author

outlined V.I.P. Limousine Service, Inc. v. Herider-Sinders, Inc., 1

which elaborated on fact-finding requirements for administrative

agencies.
2 As noted by the author, V.I.P. Limousine demanded that

the agency fact-finder state not only the ultimate facts upon which
conclusions are based, but also the basic facts necessary to support

the ultimate facts and conclusions thereon. In addition, the court

stated that situations may arise in which the agency must go
beyond fact-finding, and give a statement of reasons for the factual
determination.3

Once again, the Indiana Court of Appeals has seen fit to
elaborate on what exactly will be required of agency fact-finders. In
Wolfe v. Review Board of the Indiana Employment Security Divi-
sion,* the appellant challenged a denial of unemployment compensa-
tion by the Review Board, alleging inter alia that the Board "failed
to make findings relative to each of the reasons he gave for
leaving."5 The appellant had raised eight specific grounds which he
claimed constituted good cause for voluntarily leaving his employ-

ment. Although the Board had made findings specifically disposing
of a number of appellant's claims, it was silent with respect to other
allegations raised. The posture of the court of appeals, in responding
to appellant's challenge and remanding for further findings on the

issues not addressed by the Board, illustrates the clearest statement

Member of the Indiana Bar. J.D. Indiana University School of Law— In-
dianapolis, 1977.

'355 N.E.2d 441 (Ind. Ct. App. 1976).
2See Utken, Administrative Law, 1977 Survey of Recent Developments in In-

diana Law, 11 Ind. L. Rev. 20, 22 (1977).
3355 N.E.2d at 445.
4375 N.E.2d 652 (Ind. Ct. App. 1978).
5M at 653.