Indiana Law Review


Indiana Law Review
Volume 15 1982 Number 4

Implementing the Indiana Juvenile Code

Sharon Funcheon Murphy*

The new Indiana Juvenile Code, enacted in 1978, x has been the
subject of substantial legislative revision and significant judicial in-

terpretation. This Article updates and analyzes the major changes

which have occurred since the juvenile code became effective in
1979.

2 The affected provisions of the juvenile code that are discussed
in this Article include: Chapter 1 — General Provisions; Chapter
2 — Jurisdiction; Chapter 3 — Rights and Effect of Adjudication;
Chapter 4 — Delinquent Children and Children in Need of Services;
Chapter 5 — Termination of the Parent-Child Relationship; Chapter
6 — Paternity; and Chapter 7 — Procedure in Juvenile Court.

I. General Provisions

Chapter one of the juvenile code (code) contains general provi-

sions regarding purposes and policies of the juvenile law in Indiana.3

These provisions act as a guide for the application of the other pro-

visions of the code. The policy and purpose section of the code
focuses on the diverse and often conflicting rights and obligations of

society, families, and juveniles to each other. It seeks to balance the

various obligations involved while protecting "constitutional and

other legal rights of children and their parents."4 Several recent In-

diana decisions address these interests in two different areas: deci-
sions that concern the effective date of the code, and decisions that

deal with the remedies against and rights of juveniles provided in

other chapters of the code.

The new juvenile code took effect October 1, 1979.5 Specifically,

*Sharon Funcheon Murphy, Associate Editor of the Indiana Law Review,
prepared this Article in collaboration with John Schneider, John Polivick, Cindy

Williams Beth Kerlin, Chris Wall, Pam Rhine, Tom Grebb, Jay Kennedy.
'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, 1978 Ind. Acts 1196 (1978).
3
Ind. Code § 31-6-1-1 (Supp. 1981).

*Id. § 31-6-1-1(2).
8Act of Mar. 10, 1978, Pub. L. No. 136, § 59, 1978 Ind. Acts 1196 (1978).

765



766 INDIANA LAW REVIEW [Vol. 15:765

the code was not to apply to "matters in which a court has entered a

dispositional decree before October 1, 1979 . . . ."
6 Some confusion

arose about the time the new code was to take effect regarding the
scope of "matters" to which the code would apply. The issue has

been resolved in two different contexts.

The court of appeals in both In re Miedl7 and In re Myers8 ap-
plied the new code in proceedings to terminate parental rights in
cases in which the children concerned had been made wards of the
state prior to the effective date of the code. The court in both cases

found that the wardship proceedings were separate "matters" from

the termination proceedings for the purpose of applying the code.

Therefore, the new juvenile code was applicable to the termination
proceedings, because no dispositional decree was entered in that

matter prior to October 1, 1979.
9

In another context, the court of appeals in Washington County
Department of Public Welfare v. Konar

10 found that a petition to

terminate parental rights, which was filed by the Washington County
Welfare Department well before the effective date of the code, had
to comply with the new code because no dispositional decree had
been entered before the new code became applicable. 11 In upholding
the trial court's determination to grant the motion to dismiss the

Welfare Department's petition, the court of appeals cited Miedl as

holding that the new code applies to matters still pending. 12 The
court further noted that the Welfare Department should have

6
ld.
7416 N.E.2d 491 (Ind. Ct. App.), rev'd on other grounds, 425 N.E.2d 137 (Ind.

1981). Miedl was primarily concerned with the sufficiency of evidence in support of the

trial court's termination of the parent-child relationship which will be discussed under

the Chapter 5 section of this Article. The court of appeals reversed the trial court's

determination, suggesting that the new code required a different standard than was
previously necessary and that the evidence was insufficient under the new code.

The Indiana Supreme Court reversed the finding that there was insufficient
evidence to support the trial court's determination. 425 N.E.2d at 138. The court noted

that the standards set down in Perkins v. Allen County Dep't of Pub. Welfare, 170 Ind.
App. 171, 352 N.E.2d 502 (1976) as well as the standards espoused by the new code
were met in Miedl. Therefore, the trial court's determination was correct under both

the old and new law. 425 N.E.2d at 140. While the court did not address the issue of
which law applied to the termination proceedings, it did warn against subjecting the

trial court's judgment to a "seesaw-tug of war" between the two statutes. Id.
"417 N.E.2d 926 (Ind. Ct. App. 1981).
9
In re Myers, 417 N.E.2d at 929; In re Miedl, 41,6 N.E.2d at 493-94. The court's

holding in Miedl was based on the belief that the legislature intended the code to affect the

rights of children in the juvenile justice system as soon as possible. 416 N.E.2d at

493-94.
10416 N.E.2d 1334 (Ind. Ct. App. 1981).
u
Id. at 1335.

12
Id.



1982] JUVENILE CODE 767

known of the impending changes in the applicable law and conformed
its petition to the provisions of the new code. 13 In determining that
the new code was applicable to "matters" still pending, the court, in
the above cases, noted that the policy and purpose section of the

code was an explication of the legislature's intention.
One recent Indiana decision employed the policy and purpose

section of the code in an attempt to balance the rights of a juvenile

affected by the juvenile justice system with the interests of the

state in the effective operation of that system. In Madaras v. State, 1*

the court of appeals noted that "[o]f primary importance to the

policies behind our juvenile justice system is the flexibility the

system provides in dealing with juvenile problems." 15 The court
noted that the code favors disposing of juvenile matters in the least

severe manner available, but the flexibility in dealing with juvenile
problems created by the code allows a juvenile court to choose an

alternative best suited to the unique circumstances of a particular

case.
16 In effect, it appears that a court is free to impose any

available disposition if it is in the best interest of the child and

society. A dispositional decree may not, however, be purely punitive
in nature, because such a punitive decree would violate the spirit

and purpose of the code. 17

Numerous alternatives are thus available under the code for the
resolution of problems to ensure that the ultimate resolution is in

the best interest of the child. This "best interests" standard, present

in the purpose and policy section of the code,
18 pervades the other

chapters of the code and acts as a guide for the application of other

code provisions. At the point where the best interests of the child

interfere with the integrity of the family unit, serious constitutional

questions arise. However, this best interests standard as an underly-

ing policy of the code has been held constitutional.19

In re Joseph20 dealt with a challenge of the best interests

standard by a father whose visitation rights with his daughter were
terminated because the visitation rights were found not to be in the

best interests of the child. The father attacked the best interests
standard as meaningless and claimed that the standard could be

used to advance a less than compelling state interest while interfer-

ing with his fundamental rights to family integrity and parent-child

13
Id.

14
425 N.E.2d 670 (Ind. Ct. App. 1981).

"Id. at 672.

"Id. at 671.
17See Ind. Code § 31-6-1-1 (Supp. 1981).
"Id. § 31-6-1-1(6).

"In re Joseph, 416 N.E.2d 857 (Ind. Ct. App. 1981).
20
Id.



768 INDIANA LAWREVIEW [Vol. 15:765

communication.21 The thrust of the father's argument was that the
standard violated due process.22

The court of appeals held that the standard was not meaningless
because the standard had not been employed to "make vague moral
judgments about alternative lifestyles and parental fitness."23 The
court found that the purpose for the standard, contrary to the

father's contention, was to preserve an environment conducive to
the mental and physical development of the child.24 The father also
opposed the best interests standard by arguing that reasonable

visitation rights should be granted absent a showing that such

rights would pose a substantial threat to the child's emotional or

physical well-being.25 The court of appeals held, however, that the
best interests standard was constitutionally permissible in deter-
mining visitation rights of a father when, as in the case before the

court, the child has been found to be neglected and dependent under

Indiana law.26

The court acknowledged that there is a fundamental right to
family integrity and that the state cannot interfere with this right

unless a compelling state interest is advanced.27 The court found,
however, that the required compelling state interest was advanced
by the two-step process evinced in the case before the court.28

The first step is the initial state intrusion into the family unit
pursuant to the state's parens patriae power "to intervene when
parental neglect, abuse or abandonment has been established." 29 The
court then found that the compelling state interest in protecting the

welfare of the child was clear.30 Once the finding of abuse and
neglect has been made, the second step is to balance the rights of

the biological parent with the best interests of the child, keeping in

mind that the rights of the biological parent are no longer para-

mount once the initial step has been properly taken.31 By the time
the best interests standard is liberally applied in the second stage,

the state has already demonstrated the requisite compelling interest

and courts may then fashion a remedy most conducive to the emo-
tional and physical development of the child.

21416 N.E.2d at 858-60.
22
Id.

23
Id. at 861.

2i
Id.

25
Id. at 858.

26
Id. at 862.

21
Id. at 859.

2s
Id. at 860.

^Id.
30
Id.

31
Id.



1982] JUVENILE CODE 769

II. Jurisdiction

Indiana Code section 31-6-2-4, which provides for waiver of

jurisdiction by the juvenile court, was amended in 1981 to accom-
modate the addition of subsection (d) to section 31-6-2-4.32 The amend-
ment also added subsection (e) which compels the juvenile court to

waive jurisdiction, upon proper motion by the prosecutor, if it finds

that the offender is charged with a felony33 and has previously been

convicted of either a felony or a non-traffic misdemeanor.34

Waiver of jurisdiction by the juvenile court was recently ad-
dressed by the Supreme Court of Indiana in Trotter v. State.35 The
defendant in that case was a seventeen-year-old juvenile who was
arrested for murder, robbery, and theft. The juvenile court waived
jurisdiction pursuant to subsection 31-6-2-4(c), which provides for

waiver when there is probable cause to believe that a child, at least
ten years of age, has committed murder. The defendant appealed his
murder conviction, contending that there must be proof beyond a
reasonable doubt that he committed the offense before a waiver

could be effectuated. The defendant also argued that the juvenile
court committed error by failing to make a statement of specific
reasons to justify the waiver as is required by subsection

31-6-2-4(h).
36 The Indiana Supreme Court rejected these arguments,

reasoning that such a high standard of proof would effectively turn

a waiver hearing into a trial on the merits of the case.37 All that

must be shown is that the act would be murder if committed by an
adult and that there is probable cause to believe that the offender

committed the act when he was over ten years of age.38 When these
standards are met, the statute "creates a presumption of waiver

with respect to juveniles charged with murder."39

In Strosnider v. State,* a minor was tried as an adult for at-
tempted burglary of a dwelling, burglary, criminal trespass, and

criminal mischief. The juvenile court waived jurisdiction pursuant to
subsection 31-6-2-4(b), finding that the defendant was beyond
rehabilitation under the juvenile system. The defendant appealed
his convictions alleging, inter alia, that there was no probable cause

32
Ind. Code § 31-6-2-4(d) (Supp. 1981).

33
Id. § 31-6-2-4(e)(l).

3i
Id. § 31-6-2-4(e)(2).

35429 N.E.2d 637 (Ind. 1981).
36
Id. at 642.

31
Id. at 641.

36
Id. at 642.

39
Id.

40
422 N.E.2d 1325 (Ind. Ct. App. 1981).



770 INDIANA LAW REVIEW [Vol. 15:765

to support the charge of attempted burglary, and that the waiver

was therefore improper.41

A mandatory waiver under subsection 31-6-2-4(d) requires a
showing of probable cause that the juvenile offender committed at

least a class B felony. Although attempted burglary of a dwelling is
a class B felony, that charge against the defendant was dropped. In-
stead, the defendant was charged with and convicted of burglary, a

class C felony. Thus, the defendant argued, the juvenile court's
waiver could not be sustained.42 The court of appeals affirmed his

convictions, holding that even if there was not probable cause to

charge the defendant with attempted burglary, the juvenile court

could make a discretionary waiver based upon the defendant's prior
record of numerous juvenile offenses.43

The court apparently relied upon subsection 31-6-2-4(b) which
allows the juvenile court discretionary waiver of its jurisdiction

when a child of at least fourteen years of age commits an act that is
heinous or aggravated, or commits a repetitive pattern of delinquent

acts, and the child is beyond rehabilitation under the juvenile

system.44 When these requisites are met, the juvenile court may
waive its jurisdiction if it also finds that the interests and safety of

the community would be best served if the juvenile were tried as an
adult.

45

For adoption proceedings, the Indiana Court of Appeals made it
clear in the case of In re Gray46 that juvenile courts do not have ex-
clusive, original jurisdiction. The court noted that a juvenile court
may terminate a parent-child relationship when the action stems
from an adjudication that the child was delinquent or in need of ser-
vices.

47 However, to adopt a child outside of the provisions of section
31-6-2-1, the prospective parent must comply with the procedural
steps of section 31-3-1-6 and must file the action in a probate court
pursuant to section 31-3-1-1.48

Several amendments were added to section 31-6-2-1 that further
limited the jurisdiction of the juvenile court.

49 One change was a
1981 amendment, subsection (b)(1), which added a provision that ex-

41
Id. at 1326.

i2
Id.

i3
Id. at 1329.

"Id. at 1327, 1329.
45
Ind. Code § 31-6-2-4(b) (Supp. 1981).

46425 N.E.2d 728 (Ind. Ct. App. 1981).

"Id. at 729 n.2. See Ind. Code § 31-6-2-l(a)(3).
48
425 N.E.2d at 729. Judge Hoffman's concurring opinion played down the distinc-

tion between a juvenile court and a probate court, but he agreed with the court's
reversal based on lack of notice to the biological mother. Id. at 730-31.

49See Kerr, Foreword: Indiana's New Juvenile Code, 12 Ind. L. Rev. 1 (1979).



1982] JUVENILE CODE 771

cepts from the jurisdiction of the juvenile court any traffic law viola-

tion committed by a juvenile unless the violation is a felony or a

violation of section 9-4-1-54.
50 As a result, the juvenile courts do not

have jurisdiction over children sixteen years of age or older for

violating traffic laws, unless the violation is of Indiana's drunk driv-

ing statute,
51

or the violation constitutes a felony.
52

The same 1981 amendment to section 31-6-2-1 added subsection (d)
which precludes juvenile court jurisdiction over an individual six-

teen years or older who allegedly commits murder,53 kidnapping,54

rape,
55 or robbery,56 if the act was committed while the offender was

armed with a deadly weapon,57 or if the act resulted in bodily
injury.

58 Subsection (d) further provides that the juvenile court does

not acquire jurisdiction in the circumstances mentioned above, even

though the offender pleads guilty to or is convicted of a lesser in-

cluded offense.59

III. Rights and Effect of Adjudication

Indiana Code section 31-6-3-460 gives the juvenile court power to
appoint a guardian ad litem. Active consideration of such an appoint-

ment was recently characterized as a duty in the special cir-
cumstances surrounding a paternity suit. In Crayne v. M.K.R.L.,61

the trial court did not consider appointment of a guardian ad litem

before entering judgment against an infant who appeared at trial
only with his mother.62 The Indiana Court of Appeals reversed the
judgment, noting that "it is mandatory that the trial judge consider
the necessity of appointing a guardian ad litem before permitting a

minor defendant to proceed without one."63

This conclusion rests upon the special applicability of the In-
diana Rules of Trial Procedure to paternity actions.64 Trial Rule 17(C)

50
Ind. Code § 31-6-2-l(b)(l) (Supp. 1981).

51
Id. § 9-4-1-54.

52
Id. § 31-6-2-l(b)(l).

53
Id. § 31-6-2-l(d)(l).

5i
Id. § 31-6-2-l(d)(2).

55
Id. § 31-6-2-l(d)(3).

5
7rf. § 31-6-2-l(d)(4).

5
7d. § 31-6-2-l(d)(4)(A).
5
7d. § 31-6-2-l(d).

59
Id.

90
Ind. Code § 31-6-3-4 (Supp. 1981). For a brief discussion of the positive aspect of

this provision, see Griffis, A Judicial Response to the New Juvenile Code, 54 Ind. L. J.
639, 649 (1979).

61413 N.E.2d 311 (Ind. Ct. App. 1980).
62
Id. at 312-13.

*3
Id. at 313 (emphasis in the original).

6
*Id. at 313-14. Ind. Code § 31-6-6.1-19 (Supp. 1981) provides that paternity actions

shall be governed by the Indiana Rules of Trial Procedures.



772 INDIANA LAWREVIEW [Vol. 15:765

provides that the court shall appoint a guardian ad litem for an

infant not represented or not adequately represented.65 Although

the appellate court found that the appointment of a guardian ad

litem is not mandated by Trial Rule 17(C), it reasoned that con-
siderations of justice and the protection of minors necessitate con-

sideration of such an appointment.66 The court tempered its conclu-
sion by suggesting that if a minor were adequately represented at
trial, failure to consider the appointment of a guardian ad litem

might be harmless.67 The court, however, did not define
"adequately"; the court merely suggested that "enthusiastic"

representation would be considered a sufficient criterion.68

The necessity of considering appointment of a guardian ad litem
in non-paternity actions against a juvenile was not addressed by the
court. Because the court based its conclusion upon Trial Rule 17(C)
which is not applicable to criminal proceedings, this decision is ap-

parently limited to civil suits against juveniles. It remains to be

determined whether the duty to consider the appointment of a

guardian ad litem is expanded beyond the special circumstances of a

paternity suit.

IV. Delinquent Children
and Children in Need of Services

Chapter four69 of the 1978 juvenile code outlines juvenile court

proceedings for delinquents and children in need of services.70 This

chapter redefines children who had been considered neglected under
the previous code as children in need of services (CHINS),71 and

outlines new procedures to care for these children.72 Since 1978,
when the current juvenile code was adopted,73 the Indiana General
Assembly has continued to refine the CHINS provisions.74 The
courts, however, have only had limited opportunities to review and

interpret these provisions.75

65
Ind. R. Tr. P. 17(C).

66413 N.E.2d at 313-14.

"Id. at 314.
68
/d.

"Ind. Code §§ 31-6-4-1 to -19 (Supp. 1981).
™See Kerr, supra note 49, at 9-20.
71
Ind. Code Ann. § 31-6-4-3 commentary at 112-13 (West 1979); Kerr, supra note

49, at 11, 12. For the definition of a neglected child under the old juvenile code, see

Ind. Code § 31-5-7-6 (1976) (repealed 1978).
nSee Kerr, supra note 49, at 9-20. See Ind. Code §§ 31-6-4-4, -6, -6.5, -8, -10, -11,

-12, -13.5 to -19 (Supp. 1981).

"The juvenile code was enacted by 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. 1981)).

"See, e.g., notes 76-89 infra and accompanying text.

™See notes 90-129 infra and accompanying text.



1982] JUVENILE CODE 773

A. Legislative Refinements Concerning CHINS

The most significant action taken by the Indiana General
Assembly in regard to the CHINS provisions affects the definition
of a child in need of services.76 When the juvenile code was adopted,
a child in need of services was defined as including: a child whose
physical or mental health was impaired due to a lack of life's basic
necessities; a child whose physical health was endangered due to the
act or omission of his parents, guardian, or custodian; and a child

who endangered his own health or the health of another.77 In 1979,
the legislature expanded the definition to include children who were
victims of sex crimes, children who were allowed by parent, guardi-
an, or custodian to participate in obscene performances, and children

who were allowed to commit sex offenses.78 These definitional provi-
sions were added to tie the CHINS provisions to the child abuse pro-
visions of the juvenile code.79

After the definition of a child in need of services was expanded
to include the described acts of child abuse, the administrator of the

Indiana Department of Public Welfare sought from the attorney
general an official interpretation of the CHINS definitional provi-
sion, Indiana Code subsection 31-6-4-3(a)(3).80 The attorney general
elaborated on the definition of a child who is a victim of a sex of-
fense.81 The attorney general indicated that under this subsection, a

child in need of services includes a child who has been sexually
abused by anyone, including, but not limited to, a parent, guardian,

or custodian.
82 Thus, the attorney general, following the precedent

set by the legislature, interpreted broadly the definition of CHINS
and, as a result, expanded the juvenile court's jurisdiction.

While broadening the CHINS definition during its 1979 session,
the legislature also took a step toward limiting the application of
CHINS by adding subsection 31-6-4-3(d).83 Subsection 3(d) creates a
rebuttable presumption that a child is not a child in need of services
if the parent, guardian, or custodian fails to provide specific medical

"See Ind. Code § 31-6-4-3(a) (Supp. 1981).

"Act of Mar. 10, 1978, Pub. L. No. 136, § 1, 1978 Ind. Acts 1196, 1204 (1978)

(codified at Ind. Code § 31-6-4-3(a)(l), (2), (6) (Supp. 1981)).
78Act of Apr. 11, 1979, Pub. L. No. 276, § 13, 1979 Ind. Acts 1379, 1387 (1979)

(codified at Ind. Code § 31-6-4-3(a)(3)-(5) (Supp. 1981)).
79
Ind. Code Ann. § 31-6-4-3 commentary at 113 (West 1979).

8079 Op. Att'y Gen. 89 (1979).
81
Ind. Code § 31-6-4-3(a)(3) (Supp. 1981) provides that a child is "a child in need of

services" if before his eighteenth birthday "he is the victim of a sex offense under IC

35-42-4-1 [Rape], IC 35-42-4-2 [Unlawful Deviate Conduct], IC 35-42-4-3(a), IC 35-42-4-3(b)

[Child Molesting], IC 35-42-4-4 [Child Exploitation], IC 35-45-4-1 [Public Indecency], IC

35-45-4-2 [Prostitution], or IC 35-46-1-3 [Incest]."
82
79 Op. Att'y Gen. at 90.

83See Act of Apr. 11, 1979, Pub. L. No. 276, § 13, 1979 Ind. Acts 1379, 1388; Ind.



774 INDIANA LAWREVIEW [Vol. 15:765

treatment for the child because of legitimate and genuine religious

belief. Although a juvenile court may order treatment for the child,
unless the presumption created by subsection 3(d) is overcome, this

action may not be the basis for declaring the child to be a child in
need of services and for implementing CHINS procedures allowing
the state to step in as parens patriae. Shifting the burden of proof

under subsection 3(d), therefore, limits the jurisdiction of the state

in this particular situation.

Prior to 1980, in order for a child to be classified as a child in

need of services, it was necessary to show that the child came
within one of the six categories of need.84 It was also necessary to
show that the child needed care, treatment, or rehabilitation that he
was not receiving, that he was unlikely to accept voluntarily, and
that he was unlikely to accept or be provided with unless the court
intervened.85 In 1980, however, the legislature dropped this latter re-

quirement for showing a child to be in need of services.86 This defini-

tional amendment was in accord with the 1979 legislature's move

Code Ann. § 31-6-4-3(d) commentary at 113-14 (West 1979). Ind. Code § 31-6-4-3(d)

(Supp. 1981) provides:

When a parent, guardian, or custodian fails to provide specific medical treat-
ment for a child because of the legitimate and genuine practice of his

religious beliefs, a rebuttable presumption arises that the child is not a child

in need of services because of such a 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.
MSee Act of Apr. 11, 1979, Pub. L. No. 276, § 13, 1979 Ind. Acts 1379, 1387 (1979).
*5
Id. Prior to 1980, Indiana Code section 31-6-4-3(a) read as follows:

Sec. 3.(a) A child is a child in need of services if before his eighteenth birth-
day:

(1) his physical or mental condition is seriously impaired or seriously endan-

gered as a result of the inability, refusal, or neglect of his parent, guardian,

or custodian to supply the child with necessary food, clothing, shelter,

medical care, education, or supervision;

(2) his physical or mental health is seriously endangered due to injury by

the act or omission of his parent, guardian, or custodian;

(3) he is the victim of a sex offense under IC 35-42-4, IC 35-45-4-1, or

IC 35-46-1-3;

(4) his parent, guardian, or custodian allows him to participate in an

obscene performance defined by IC 35-30-10.1-3 or IC 35-30-10.1;

(5) his parent, guardian, or custodian allows him to commit a sex offense
prohibited by IC 35-45-4; or

(6) he substantially endangers his own health or the health of another;
and needs care, treatment, or rehabilitation that he is not receiving, that he

is unlikely to accept voluntarily, and that is unlikely to be provided or accepted

without the coercive intervention of the court.

Id. (emphasis added)
86Act of Mar. 3, 1980, Pub. L. No. 182, § 5, 1980 Ind. Acts 1576, 1581 (1980)

(deleting the former concluding provision following clause 6).



1982] JUVENILE CODE 775

toward opening the door for CHINS proceedings. In 1981, however,
the legislature reinserted the previously deleted paragraph in the

definition. As a result, it is again necessary to prove that a child will
not receive the needed treatment without the court's intervention.

87

In 1981, the General Assembly again limited and refined the

definition of CHINS by adding subsection 31-6-4-3(e) to the defini-
tional section.

88 Subsection 3(e) states that reasonable corporal pun-

ishment administered by a parent, guardian or custodian to disci-

pline a child is not controlled by the CHINS statute. This subsection
and subsection 3(d) emphasize the policy that the CHINS chapter
should not be used to limit the lawful practice or teaching of reli-

gious beliefs.
89

From the 1981 amendments it appears that if the legislature was
attempting to expand the scope of CHINS adjudication in 1979 and
1980, it has limited the scope of CHINS in 1981.

B. Court Application and Interpretation of CHINS

The most significant case decided thus far under the CHINS pro-
visions is Wardship of Nahrwold v. Department of Public Welfare of
Allen County.

90
In Nahrwold, a caseworker, acting on information

from an anonymous source, went to the Nahrwold residence and
found eight-year-old Stefanie Nahrwold at home alone. After ques-
tioning Stefanie and examining her for evidence of physical abuse,

the caseworker took Stefanie into custody.91 The next day a hearing
was held under subsection 31-6-4-6(e) to determine whether the court

had probable cause to keep the child in custody.92

At the hearing, the child's mother, Betty Nahrwold, requested a
written record and an opportunity to present witnesses. The trial
court denied both motions noting that the hearing was merely an in-
formal hearing to establish probable cause rather than a fact-finding

adjudication.
93 The trial court first heard testimony from Stefanie,

Betty Nahrwold, and the caseworker, and then determined that if

Betty would agree to an informal adjustment, the court would

87Act of May 5, 1981, Pub. L. No. 266, § 5, 1981 Ind. Acts 2182, 2187 (1981).
*8
Id.

89
Ind. Code § 31-6-4-3(e) (Supp. 1981). Subsection 3(e) provides that "[njothing in

this chapter limits the right of a person to use reasonable corporal punishment when

disciplining a child if the person is the parent, guardian, or custodian of the child. In

addition, nothing in this chapter limits the lawful practice or teaching of religious

beliefs."

90427 N.E.2d 474 (Ind. Ct. App. 1981).
91
Id. at 476.

92
Id.

93
Id.



776 INDIANA LAWREVIEW [Vol. 15:765

release Stefanie to her.
94 Betty consented to the adjustment and

regained custody of the child. Then Betty appealed the decision of
the trial court,95 claiming that the restriction on presenting

witnesses denied her due process and that the consent to the adjust-

ment was coerced.
On appeal, the Third District Court of Appeals affirmed the

judgment of the trial court.96 The court held that neither the chapter
four statutory scheme nor the fourteenth amendment due process
clause required the court to allow a parent to present witnesses or

have a written record at a probable cause hearing for detention pur-

suant to Indiana Code subsection 31-6-4-6(e).97 The statutory scheme

did not require a written record because the trial court decided to

release the child.
98 According to the statutory scheme, there was no

right to present witnesses at the detention hearing because that op-

portunity would be available in subsequent fact-finding
proceedings,99 such as the initial hearing on the petition to declare

the child to be a child in need of services.

The court also found that although Betty's parental rights had
undoubtedly been affected, due process requirements did not pro-

vide her with the opportunity to present witnesses at a probable

cause hearing.
100

In reaching this conclusion, the court noted that the

due process rights of alleged criminals do not include a right to an

adversary hearing when determining probable cause for arrest and
incarceration. The court concluded that the due process clause does
not require a parent to be given a full adversary hearing when prob-
able cause for temporary custody of a child is being adjudicated.101

94427 N.E.2d at 476.
95
Id.

96
Id. at 481.

91
Id. at 477-81.

98See id. at 476; Ind. Code § 31-6-4-6(e), (f) (Supp. 1981). Subsections 6(e) and 6(f)
read as follows:

(e) If the child is not released, a detention hearing must be held within
seventy-two (72) hours (excluding Saturdays, Sundays, and legal holidays)

after he is taken into custody; otherwise he shall be released ....
(f) The juvenile court shall release the child to his parent, guardian, or
custodian; however, the court may order the child detained if it makes written
findings of fact upon the record of probable cause to believe that the child is
a child in need of services ....

Id. (emphasis added). The language of subsection 6(f) indicates that a written record is
only required when the court decides to detain the child. The reason for this distinc-
tion between decisions to release and decisions to detain could be that an appeal is
more likely when a court has decided to detain a child.

"See 427 N.E.2d at 480; Ind. Code § 31-6-3-2(a) (Supp. 1981) (noting the rights of
parents in subsequent proceedings).

100427 N.E.2d at 479.
m
Id. at 480.



1982] JUVENILE CODE 111

At first glance, the court's analysis may appear logical; however,
it breaks down when the different standards of proof in each type of
subsequent adversary hearing are considered. In criminal adversary

proceedings, the state is required to prove that the accused is guilty

beyond a reasonable doubt, but in proceedings concerning the

parent-child relationship, the state was required to prove its case
only by a preponderance of the evidence. 102 Since subsequent parent-

child proceedings require a lesser standard of proof than criminal

proceedings, it is arguable that the preliminary probable cause pro-

ceedings for temporary custody of a child should require greater

procedural safeguards to protect parents' rights.

Although the state's burden of proof in detention hearings and

later fact-finding hearings is minimal,
103 the burden will be easier for

the state to meet at detention hearings if the opponents do not have

an opportunity to present witnesses. The unfairness in allowing the
state to make its case without adversarial confrontation at detention
hearings is that the state may establish probable cause for detention
and then use the detention ruling as evidence in subsequent fact-

finding hearings to establish its best interest burden of proof. If

the probable cause determination may be used against the parent in
subsequent proceedings where a non-criminal burden of proof is re-
quired, the parent should have a right to the same due process at
the time of the probable cause hearing that he has in the subsequent

hearings. Providing parents with greater due process assurances

through each step of a CHINS proceeding is the best way to ensure
that the parent will receive due process in the later hearings which

may culminate in the termination of a parent-child relationship. 104

Betty also claimed that she was coerced into signing the consent
to an informal adjustment program. 105 The appellate court
acknowledged that the trial court made Betty's custody of Stefanie
contingent upon Betty's agreement to the informal adjustment, but
said that Betty had other options available to her and thus was not
coerced.

106 Betty could have refused to sign the consent, thereby

102Puntney v. Puntney, 420 N.E.2d 1283, 1285-86 (Ind. Ct. App. 1981) (citing Ind.

Code § 31-6-7-13(a) (Supp. 1979)).
103See Myers v. Jennings County Dep't of Pub. Welfare, 417 N.E.2d 926, 931 (Ind.

Ct. App. 1981) (terminating parent-child relationship by the best interest of child stan-

dard); In re Fries, 416 N.E.2d 908, 910 (Ind. Ct. App. 1981) (terminating parent-child

relationship by best interest of child standard); In re Joseph, 416 N.E.2d 857, 859-61

(Ind. Ct. App. 1981) (upholding constitutionality of best interest standard in determin-

ing parental visitation rights of biological father).
104For an example of how the state may use past proceedings to prove that it is in

the child's best interest to terminate the parent-child relationship, see In re Miedl, 425

N.E.2d 137 (Ind. 1981), rev'g 416 N.E.2d 491 (Ind. Ct. App. 1981).
105427 N.E.2d at 480.
m
Id.



778 INDIANA LAW REVIEW [Vol. 15:765

temporarily giving up custody of Stefanie in order to obtain uncondi-

tional custody through the remaining CHINS procedures, or to peti-
tion for a writ of habeas corpus.107

Judge Staton wrote an insightful dissent in which he claimed

that the statutory scheme required the trial court to provide Betty
Nahrwold with a full hearing. 108 Judge Staton noted that by making
Betty's custody conditional upon her agreement to an informal ad-
justment, the hearing was really determining whether the parent
should participate in a program of care or treatment. Therefore, ac-
cording to Indiana Code section 31-6-3-2, Betty Nahrwold was entitled
to introduce evidence on her behalf. 109 Although Judge Staton
presents a persuasive argument, the hearing referred to in subsec-

tion 31-6-3-2(b)(2) is actually the hearing discussed in section

31-6-4-17.no That section requires the filing of a petition for participa-

tion before the hearing. It also presumes that the child has already

been adjudicated a child in need of services. 111 That section was not,
however, applicable to Stefanie Nahrwold's case. Her case had not
yet progressed to the point where section 31-6-4-17 would be of any
import.

Judge Staton also noted that by requiring Betty to participate in

a program of informal adjustment, the court was in essence requir-
ing her to admit that Stefanie was a child in heed of services.112

Judge Staton pointed out that such an admission could be
devastating in later proceedings, such as in a proceeding to ter-

minate parental rights. Judge Staton did not, however, draw the
logical conclusion from these circumstances; that is, by requiring the

parent to agree to an informal adjustment or to forego custody tem-

porarily, the court is placing parents in a no-win situation. If the

parent agrees to an informal adjustment, the parent risks a fatal ad-

mission; if the parent does not agree, the failure to agree to condi-

tional custody could be interpreted in later proceedings as evidence

that the parent is indifferent, uncaring, and "unmotherly." 113

Although Judge Staton's construction of the statutory scheme is

subject to question, he did make a strong argument for reversing
the trial court on the basis of its coercion in obtaining Betty

Nahrwold's agreement to the informal adjustment. 114

mId
108

109
/rf

427 N.E.2d at 481 (Staton, J., dissenting).

Id.

Compare Ind. Code § 31-6-3-2(bK2) (Supp. 1981) with Ind. Code § 31-6-4-17 (Supp.
110

1981).

1u
Ind. Code § 31-6-4-17 (Supp. 1981)

112427 N.E.2d at 482.
113For examples of how courts interpret the actions of parents in making decisions,

see Puntney v. Puntney, 420 N.E.2d at 1285-87; In re Fries, 416 N.E.2d at 909-11.
UiSee 427 N.E.2d at 481-83.



1982] JUVENILE CODE 779

In summary, Nahrwold indicates that the courts will probably be
lenient in determining the adequacy of due process safeguards in

detention hearings pursuant to subsection 31-6-4-6(e). 115 Nahrwold
also provides support for the practice of conditioning parental

custody upon agreement to informal adjustment programs.116 In addi-

tion to these specific holdings of Nahrwold, the case could stand for

the general proposition that the appellate courts will continue to

give broad discretion to trial courts despite the specific procedural

guidelines provided in the statute for reviewing CHINS cases. 117

Judge Staton's strong dissent, however, indicates that rubber-

stamping trial court decisions may not become a pattern under the
CHINS provisions. 118

The Indiana Supreme Court also had occasion to review the new
CHINS provisions in the case of In re Lemond. 119 Lemond involved a
child custody battle under the Uniform Child Custody Jurisdiction

Act (UCCJA). 120 According to the divorce decree, Earl Lemond was
to have custody of his daughter Michelle as long as he lived in

Hawaii; if he moved, however, the child was to stay with her mother
in Hawaii. Lemond moved to Indiana. When his daughter visited him
in Indiana, he refused to return her to her mother in Hawaii. 121 The
mother filed a petition for a writ of habeas corpus to have the child

returned, and the Supreme Court of Indiana ordered the writ en-
forced.

122 As a last resort to maintain the custody of his daughter,
the father filed a petition alleging that Michelle Lemond was a child
in need of services. 123 The Indiana Supreme Court refused to exer-
cise its emergency jurisdiction under the UCCJA and re-open the
provisions of the Hawaiian divorce decree in this case because the

CHINS petition was filed in bad faith and had no merit. 124 The court
seemed to indicate, however, that the emergency powers under the

UCCJA could be invoked if a valid CHINS petition was filed. 125

Earl Lemond also claimed that the court had emergency jurisdic-
tion under the CHINS statutes without invoking the emergency
jurisdiction provisions of the UCCJA. 126 In dicta, the court stated
that it could invoke the emergency jurisdiction pursuant to the

,15See id. at 477-80.
116See id. at 480.
ulSee id. at 476-80.
118See id. at 481-83 (Staton, J., dissenting).
U9413 N.E.2d 228 (Ind. 1980).
120
Ind. Code §§ 31-1-11.6-1 to -24 (Supp. 1981).

I21
413 N.E.2d at 231.

122
Id. at 232.

mSee id. at 233.
,24See id. at 244-45.
i25See id. at 245.
,2
7d.



780 INDIANA LAWREVIEW [Vol. 15:765

CHINS statutes, but in order to do so, the procedures described in
the statute must be followed exactly.127 The court then reviewed the
procedures of the CHINS statute and referred to them as ''jurisdic-
tional prerequisites."

128 The court's careful treatment of these provi-
sions indicates that the court may follow the procedures outlined in
the CHINS statutes very closely when reviewing cases in the
future. At least this will be the standard of review when a CHINS
claim appears to be made in bad faith. 129

C. Judicial Consideration of Delinquent Children Provisions

In In re Tacy,130 the court of appeals determined when a petition
alleging delinquency must be "filed" for purposes of tolling the
twenty day limitation on detention of a child. 131 The appellant argued
that the petition alleging delinquency was filed April 18, 1980, so
that the waiver hearing which occurred twenty-eight working days

later on May 28, 1980, was untimely. An ambiguity arose in view of
a statutory mandate directing the juvenile court to "authorize" the
filing of a petition.

132
In Tacy, the juvenile court had authorized the

filing of the petition alleging delinquency on April 29, 1980, resulting

in a timely waiver hearing on May 28, 1980. 133 The court recognized
the issue as one of first impression and called upon the general rules

of statutory construction. 134 Because the authorization by the

121
Id. at 245-47.

128
Id. at 245-49.

l29See id. at 249.
130427 N.E.2d 919 (Ind. Ct. App. 1981).
131
Ind. Code § 31-6-7-6(b) (Supp. 1981) provides:

If the child is in detention and a petition has been filed, either a fact-finding

hearing or a waiver hearing must be commenced within twenty (20) days (ex-
cluding Saturdays, Sundays, and legal holidays) after the petition is filed. If

the child is not in detention, the hearing must be commenced within sixty

(60) days (excluding Saturdays, Sundays, and legal holidays) after the petition

is filed.

132
Ind. Code § 31-6-4-9 (Supp. 1981) provides in part:

(a) The prosecutor may request the juvenile court to authorize the filing of a
petition alleging that a child is a delinquent child; the attorney for the county

department may request the juvenile court to authorize the filing of a peti-
tion alleging that a child is a delinquent child defined by section 1(b)(2) of this

chapter. The person requesting the authorization shall represent the inter-
ests of the state at this proceeding and at all subsequent proceedings on the

petition.

(b) The juvenile court shall consider the preliminary inquiry and the evidence
of probable cause. The court shall authorize the filing of a petition if it finds

probable cause to believe that the child is a delinquent child and that it is in

the best interests of the child or the public that the petition be filed.
,33427 N.E.2d at 921.
l3i
Id.



1982] JUVENILE CODE 781

juvenile court of the filing of the petition alleging delinquency had

traditionally been an essential step in the juvenile process,135 the

court concluded that "it only seems logical that the 'filing' of the
petition alleging delinquency does not actually occur until it is

authorized by the juvenile court." 136 Thus, the juvenile court had

acted within the twenty day period and had not lost jurisdiction.

The appellant next argued that the failure to hold a detention
hearing within the forty-eight hour period following his arrest, and

the failure to release him after the forty-eight hour period 137 consti-

tuted error.
138 The court agreed with the appellant that there had

clearly been no hearing within forty-eight hours but went on to hold,
without citation to authority, that such error was harmless. The
court, again without citation to authority, reasoned that the statute

in question required only the child's release and was silent as to
effect on jurisdiction and charges. As a result, should a child be de-
tained beyond the forty-eight hour period in contravention of the ex-

plicit statutory mandate, the juvenile court will not lose jurisdiction,

nor will the charges against the juvenile be dismissed. 139 The court
concluded by stating: "Tacy's detention was regrettable; however,

he was not without recourse. His proper remedy under the circum-
stances would have been to seek a writ of habeas corpus." 140 In

reaching its holding, the court seemed to ignore the prophylactic in-
tent of the statute. While a juvenile may have a remedy available in
the form of a writ of habeas corpus, the court's opinion disregards

the express language of the statute and apparently allows a child to

be retained beyond the forty-eight hour period set by the statute.

V. Termination of the Parent-Child Relationship

In Indiana, the termination of the parent-child relationship is

governed by two distinct statutes. If the termination is in connec-

tion with an adoption, the adoption statute 141 applies, but if the ter-

mination is a result of abandonment, neglect, or abuse, the juvenile

code 142 applies. Both statutes outline different requirements for vol-

l35
Id. (citing Duty v. State, 169 Ind. App. 621, 623; 349 N.E.2d 729, 731 (1976)).

i36
427 N.E.2d at 921. See also Kerr, Foreword: Indiana's New Juvenile Code, 12

Ind. L. Rev. 1, 14-15 (1979) (discussing the initiation of formal action).
137
Ind. Code § 31-6-4-5(f) (Supp. 1981) provides in part: "If the child is not released,

a detention hearing must be held within forty-eight (48) hours (excluding Saturdays,
Sundays, and legal holidays) after he is taken into custody; otherwise he shall be
released."

138
427 N.E.2d at 921.

139
Id.

uo
Id.

141
Ind. Code § 31-3-1-6 (Supp. 1981).

U2
Id. § 31-6-5-4.



782 INDIANA LAWREVIEW [Vol. 15:765

untary and involuntary terminations thus providing four different

sets of requirements for termination.143

Chapter five of the juvenile code sets out the requirements for

both voluntary and involuntary terminations. Voluntary termination

necessarily requires parental consent, and the code explicitly states

that a valid, informed consent must be given. The consenting
parents must give their consent in court after being advised of their
parental rights and of the effect that a termination will have on

those rights.
144

If the parents do not attend the hearing on the peti-

tion to terminate, the relationship can still be terminated if the

court finds that: "(1) the parents gave their consent in writing

before a person authorized by law to take acknowledgements; (2)

they were notified of their constitutional and other legal rights and
of the consequences of their actions under section 3 of this chapter;

and (3) they failed to appear."
145

This third requirement implicitly gives parents the right to re-

cant a written consent any time before a court ruling is entered on

the termination petition by simply attending the hearing and refus-

ing to give consent in court.146 Such parental refusal to give consent

would then force the agency seeking termination to proceed under

the involuntary termination provisions.

To terminate the parent-child relationship involuntarily under
the juvenile code, the child must first have been adjudicated a delin-
quent child or a child in need of services.147 In addition to this re-

quirement, the petitioner must show further that:

(1) the child has been removed from the parent for at least
six (6) months under a dispositional decree;

(2) there is a reasonable probability that the conditions that

resulted in the child's removal will not be remedied;

(3) termination is in the best interest of the child; and

(4) the county department has a satisfactory plan for the

care and treatment of the child. 148

Although these requirements are strict, the new code has
lowered the standard of proof which must be met from "clear and

li9See id. §§ 31-3-l-6(a), (g) & 31-6-5-2, -4.
w
Id. § 31-6-5-2(c), (d).

1451

146<

"Id. § 31-6-5-2(c).
6See Washington County Dep't of Pub. Welfare v. Konar, 416 N.E.2d 1334, 1335

(Ind. Ct. App. 1981); Rhine & Weinheimer, Domestic Relations, 1981 Survey of Recent
Developments in Indiana Law, 15 Ind. L. Rev. 203, 205 (1981).

147
Ind. Code §§ 31-6-5-3(6)(A), -4(1) (Supp. 1981). See notes 76-89 supra and accompa-

nying text.
,48Act of Feb. 25, 1982, Pub. L. No. 183, 1982 Ind. Acts 1350.



1982] JUVENILE CODE 783

convincing" to a "preponderance of the evidence." 149 Prior to the

new code, Indiana courts had held that the higher, intermediate
level of proof was proper due to the fact that a fundamental right

was being affected. 150 However, the Indiana legislature has provided

that the lower "preponderance of the evidence" standard will be ap-

plied in juvenile proceedings unless the adjudication of a crime is in-

volved.
151

The parent in Puntney v. Puntney152 questioned the constitution-

ality of this change in standards, but the court did not resolve the

issue because the question had not been raised at the trial court

level and could not, therefore, be raised on appeal. 153 The court dealt
with the problem in dicta, however, and stated that this was a civil

case requiring the ordinary standard of proof, a preponderance of

the evidence.
154 The court stated that the clear, cogent, convincing

standard of proof announced in In re Adoption of Bryant
155 and In re

Adoption of Anonymous
156 was changed by the new provision in the

code.
157

The court might well have deferred to the reasoning of In re

Joseph 158 in addressing this issue. In that case the "preponderance of

the evidence" standard was applied when a parent was denied
visitation rights under the code. When the standard was challenged
as being insufficient because the fundamental right to visitation was
being affected, the court reasoned that once a child has been found

to be in need of services, the parents' fundamental right to visita-

149Ind Code § 31-6-7-13(a). It is important to note, however, that a recent United

States Supreme Court decision, Santosky v. Kramer, 102 S. Ct. 1388 (1982), may
render this section of the code unconstitutional. In Santosky, the New York law in
dispute allowed the State to terminate parental rights upon a finding that the child

was "permanently neglected." The New York courts required only a preponderance of
the evidence to support this finding. The Supreme Court held that the due process
clause of the fourteenth amendment requires that the proof be at least by clear and
convincing evidence. Santosky was recently followed in Indiana in the case of Ellis v. Knox
County Dep't of Pub. Welfare, 433 N.E.2d 847 (Ind. Ct. App. 1982).

l50See In re Adoption of Anonymous, 158 Ind. App. 238, 302 N.E.2d 507 (1973). But

see In re Leckrone, 413 N.E.2d 977 (Ind. Ct. App. 1980) (applying the same high stan-

dard to an involuntary termination in connection with an adoption proceeding after the

effective date of the new juvenile code).
151
Ind. Code § 31-6-7-13(a) (Supp. 1981).

152420 N.E.2d 1283 (Ind. Ct. App. 1981).
l53
Id. at 1286.

15
7d.

155134 Ind. App. 480, 189 N.E.2d 593 (1963).
156158 Ind. App. 238, 302 N.E.2d 507 (1973).
157
420 N.E.2d at 1286. But see In re Leckrone, 413 N.E.2d 977 (Ind. Ct. App. 1980);

Graham v. Starr, 415 N.E.2d 772 (Ind. Ct. App. 1981) (both cases applying the clear and
convincing standard to "post juvenile code" adoption cases).

158416 N.E.2d 857 (Ind. Ct. App. 1981).



784 INDIANA LAWREVIEW [Vol. 15:765

tion is outweighed by the state's compelling interest in the welfare

of the child.
159 This analysis would not change the standard of proof

announced in the adoption cases cited by the court. Involuntary ter-

mination proceedings initiated under the adoption statute 160 would

continue to require "clear and convincing" evidence because of the

fundamental parental right involved. Only the cases initiated under

the juvenile code that necessarily concern a delinquent child or a

child in need of services would apply a "preponderance of the

evidence" standard.

In the 1981 case Puntney v. Puntney,161 the children involved in
the involuntary termination proceeding had been adjudicated depen-

dent and neglected children under the old juvenile code.162 Perma-

nent wardship was established at that time. In 1980, the county
welfare department petitioned the court to terminate the parent-

child relationship. The parent claimed that the new code requires a
prior adjudication that the children were in need of services,163 and
since the department had failed to return to court under the new
code and get such adjudication, it was barred from proceeding under
the code.

164 The parent further contended that the new code does not
apply to matters in which the court has entered a dispositional

decree before October 1979.165 The court held that the permanent
wardship under the old code was equivalent to an adjudication of a
child in need of services under the code and that the termination

proceeding was a new and separate matter, thus making the new
code applicable in this case.166

In In re Miedl,197 the Indiana Supreme Court affirmed the trial
court decision and vacated the appellate court's reversal. In Miedl,

the two children involved in the termination proceeding had been
wards of the county for most of their lives due to their mother's in-

ability to care for them. The mother had constant and continuing
mental and emotional problems and could not retain a job or main-

tain a home.168 In February of 1979, the trial court issued an informal

order that the children be returned to the mother for a trial period.

When the mother entered the hospital in May, the children were
returned to their foster parents and the trial period was deemed a

™Id. at 858-59.
160
Ind. Code § 31-3-l-6(g) (Supp. 1981).

161420 N.E.2d 1283 (Ind. Ct. App. 1981).
l62
Id. at 1284.

mSee Ind. Code § 31-6-5-3(6)(A) (Supp. 1981).
164
420 N.E.2d at 1284.

m
Id.

™Id. at 1285.
167
425 N.E.2d 137 (Ind. 1981).

l68
Id. at 138-39.



1982] JUVENILE CODE 785

failure.
169 On May 30, the mother filed for termination of the ward-

ship, and in response, the county filed for termination of the parent-

child relationship.

The trial court granted the county's petition to terminate the
parent-child relationship, but the appellate court reversed the deci-

sion.
170 The court based its reversal on the statutory requirement

that "the child has been removed from the parent for at least six (6)
months under a dispositional decree . . . ." 171 The court interpreted

this to mean physical removal for the "six months immediately
preceding the filing of the petition."

172
Since the mother had the

children for two of the previous six months, the requirement was
not met and the termination could not be granted. In refusing to ac-
cept this interpretation, the Indiana Supreme Court stated: "Not on-
ly had the children been removed from their mother for much of the
previous six months but they had been under the care and supervi-

sion of the Welfare Department for most of their lives." 173 The court
further stated that "[cjustody had not changed in the orders of the

court to give the mother physical custody. This was merely a tem-

porary unofficial placement . . . ." 174 The court emphasized, as an ad-
ditional requirement, that such terminations be in the best interests

of the children involved,
175 but that it was "not the intention of the

legislature that the future plans for the children would be detailed

in the evidence so that the Court could choose the 'best' alternative

for the children involved." 176 Prior to determining the future of the

child, "it must first be found that the circumstances are such that
the parental tie must be severed and a different direction found that

gives some chance to the child . . . ," 177

In re Myers 118 is another case in which the new code was applied
in termination of parental rights. In Myers, the mother's two sons
were adjudged to be children in need of services and placed in
foster homes because the mother had failed to properly care for
them.179 In the sixteen months following this adjudication, the
mother failed to hold a steady job, joined the air force but was
discharged for medical reasons, and attempted suicide.180 At the time

l69
Id. at 139.

lw
In re Miedl, 416 N.E.2d 491 (Ind. Ct. App.), rev'd, 425 N.E.2d 137 (Ind. 1981).

I71Act of Feb. 25, 1982, Pub. L. No. 183, 1982 Ind. Acts 1350.
172416 N.E.2d at 494.
173
425 N.E.2d at 140 (emphasis added).

lli
Id.

i75See Act of Feb. 25, 1982, Pub. L. No. 183, 1982 Ind. Acts 1350.
m
425 N.E.2d at 141.

m
/d.

178
417 N.E.2d 926 (Ind. Ct. App. 1981).

™Id. at 927.
180
/d. at 928.



786 INDIANA LAWREVIEW [Vol. 15:765

of the hearing to terminate her parental rights, she was pregnant
and living in a halfway house. At the hearing, she expressed her
love for her children but stated that she was not prepared to
assume parental duties.181 The trial court terminated the mother's
parental rights and she appealed the decision.182

The court of appeals evaluated the sufficiency of the evidence
using the five criteria set out in the 1981 amendments to the code.183

In assessing the probability that the conditions which resulted in

the removal of the children would not be remedied, the second

criterion set out in the code, the court stated that "[ajlthough there

is no direct testimony that conditions will not be remedied, we find
that such a conclusion could be reasonably inferred from the

evidence presented." 184

The court of appeals in Myers was also called upon to interpret
the third criterion in the 1981 amendments to the code; what con-
stitutes "reasonable services" to assist a parent in fulfilling his

parental obligations.
185 The court stated that "what constitutes

'reasonable services' is one that cannot be answered by a definitive

statement. Instead, it must be answered on the basis of any given
factual situation, for it is clear that services which might be

reasonable in one set of circumstances would not be reasonable in a

different set of circumstances."
186

Puntney, Myers, Joseph, and Miedl indicate that the courts will

adhere to the requirements of the code while retaining a certain

flexibility. This approach will allow a case-by-case determination in

this sensitive area of termination of parental rights. The fundamen-
tal consideration applicable in this area is the best interests of the

children involved.

VI. PATERNITY

A. Presumption of Legitimacy

The code 187 provides that if a child is born while the mother is
married, the husband is presumed to be the father. 188 The statutory

m
ld.

182
Id.

183
Ind. Code § 31-6-5-4 (Supp. 1981).

184417 N.E.2d at 930.
185
Ind. Code § 31-6-5-4(3) (Supp. 1981). This statute has been superseded by Act of

Feb. 25, 1982, Pub. L. No. 183, 1982 Ind. Acts 1350 which is effective September 1,
1982.

186
417 N.E.2d at 931.

187
Ind. Code §§ 31-6-6.1-1 to -19 (Supp. 1981).

188
Ind. Code § 31-6-6.1-9 (Supp. 1981) provides in part that:

(a) A man is presumed to be a child's biological father if:



1982] JUVENILE CODE 787

presumption has been interpreted as merely the codification of the

common law as it existed prior to the passage of the code.189

Although the presumption is rebuttable, Indiana courts have called

the presumption of legitimacy "one of the strongest known to the
law and may only be rebutted by direct, clear, and convincing
evidence."

190

Since the passage of the code, there have been several cases

decided which elucidate the type of evidence which is required to

rebut the presumption.191 In Tarver v. Dix,192 the mother brought a
paternity suit to have the defendant, Tarver, adjudicated the father

of her child. At the time her child was born, the mother was mar-
ried to another man. Although her husband lived in the same city,
the mother testified she had not seen him for years and at the time

of conception she had had sexual intercourse exclusively with

Tarver. 193 Evidence was presented that the only men seen entering
her apartment during the time of conception were Tarver and her
brother. Tarver argued that this evidence did not rebut the

presumption of legitimacy because the mother's husband lived in the

same city and thus had access to his wife. 194 Past Indiana decisions

had held that in order to overcome the presumption it would have to

CD he and the child's biological mother are or have been married to each

other and the child is born during the marriage or within three hundred (300)

days after the marriage is terminated by death, annulment, or dissolution;

(2) he and the child's biological mother attempted to marry each other

by a marriage solemnized in apparent compliance with the law, even though

the marriage is void ... or voidable . . . and the child is born during the at-

tempted marriage or within three hundred (300) days after the attempted

marriage is terminated by death, annulment, or dissolution; or

(3) after the child's birth, he and the child's biological mother marry, or

attempt to marry, each other, by a marriage solemnized in apparent com-

pliance with the law, even though the marriage is void ... or voidable . . .

and he acknowledged his paternity in a writing filed with the registrar of

vital statistics of the Indiana state board of health or with a local board of

health.
189Tarver v. Dix, 421 N.E.2d 693, 696 (Ind. Ct. App. 1981).
190H.W.K. v. M.A.G., 426 N.E.2d 129, 131 (Ind. Ct. App. 1981).
191 H.W.K. v. M.A.G., 426 N.E.2d 129 (Ind. Ct. App. 1981); Tarver v. Dix, 421

N.E.2d 693 (Ind. Ct. App. 1981); Johnson v. Ross, 405 N.E.2d 569 (Ind. Ct. App. 1980).
192421 N.E.2d 693 (Ind. Ct. App. 1981).
m
Id. at 694.

194
/d. at 697. The court in Tarver cited the case of Phillips v. State ex rel.

Hathcock, 82 Ind. App. 356, 145 N.E. 895, (1925) which stated that:

[T]he presumption could be overcome by proof that the husband was impo-

tent; or that he was entirely absent so as to have had no access to the

mother; or was entirely absent at the time the child in the course of nature
must have been begotten; or was present only under such circumstances as
to afford clear and satisfactory proof that there was no sexual intercourse.

Id. at 360, 145 N.E. at 897.



788 INDIANA LAW REVIEW [Vol. 15:765

be shown that the husband did not have access to his wife. 195 Access
means physical access to and sexual intercourse with the wife dur-
ing the time conception occurred. In view of the trial court's find-

ings that the mother had not seen her husband during the time of

conception,196 the Tarver court concluded that the legal presumption
of legitimacy had been overcome by clear and convincing evidence.

The Tarver court placed great emphasis on the fact that there
was corroborating evidence to the mother's testimony. 197 However,
in H.W.K. v. M.A.G. 198 the only testimony presented was by the
mother and the alleged father. The court of appeals examined the
long stated rule that "statements and admissions made by the par-
ties standing alone are insufficient to rebut the presumption of

legitimacy" 199 and found that this rule only applied to cases in which

"the husband had access to the mother during the period of concep-
tion."

200
In cases where the evidence is uncontradicted that the hus-

band did not have access to or sexual relations with the mother, the

court held that the parties' statements standing alone may rebut the
presumption of legitimacy.201 The alleged father then argued that the
evidence presented was insufficient to sustain the trial court's deter-
mination that he was the father. The court of appeals responded
that "[pjaternity actions are civil proceedings and the alleged father

must be proved to be such by a preponderance of the evidence."202

The code also provides that a man is presumed to be the
biological father of the child if "he acknowledges his paternity in

writing with the registrar of vital statistics of the Indiana State

Board of Health or with a local board of health."203 The case of
Johnson v. Ross 204 illustrates the strength of this presumption. In

Johnson both the mother and the alleged father testified that he

was not the father.205 Furthermore, the alleged father testified that
he was out of the country and did not return to the United States

195421 N.E.2d at 696.

™Id. at 697.
191
Id. at 696.

198426 N.E.2d 129 (Ind. Ct. App. 1981).
199
Id. at 132 (citing L.R.F. v. R.A.R., 269 Ind. 97, 378 N.E.2d 855 (1978); Buchanan

v. Buchanan, 256 Ind. 199, 267 N.E.2d 155 (1971)).
200426 N.E.2d at 132.
201
Id.

m
Id. at 133 (citing Beaman v. Hedrick, 146 Ind. App. 404, 225 N.E.2d 828 (1970)).

The court in H.W.K. held that the mother's testimony that she had had sexual rela-
tions only with the alleged father, coupled with the probability of conception at such

time, was sufficient to support the trial court's finding. 426 N.E.2d at 133.
203
Ind. Code § 31-6-6.1-9(b)(2) (Supp. 1981).

204405 N.E.2d 569 (Ind. Ct. App. 1980).

™Id. at 572.



1982] JUVENILE CODE 789

during the period of conception.
206 However, he failed to testify that

the mother did not come to see him during this time.207 Therefore,
the court of appeals refused to reverse the trial court's determina-

tion of paternity.
208 This result indicates that the presumption

created by this section of the code appears to be nearly

irrebuttable.
209

B. Statute of Limitations

As a general rule, a paternity proceeding must be filed within
two years after the child is born.210 The code, however, provides
several exceptions to the two year requirement.211 One exception is
when the alleged father provides support for the child; this support
payment extends the statute of limitations until two years after sup-

port payments are discontinued.212 The court of appeals in H. W.K. v.

M.A.G. 213 placed the burden of showing that support had been fur-

nished within two years of the filing of the paternity proceedings on

™Id. at 570 n.2.
m
Id.

208
Id. at 573.

209The court in Johnson noted that it could not reverse if there was any set of
facts or inferences which would sustain the trial court's determination. Id. at 572. The

court went on to say that the trial court could reasonably infer that the putative

father was the biological father from the fact that he had signed the affidavit

acknowledging that he was the father. Id. at 573.
210
Ind. Code § 31-6-6.1-6(a) (Supp. 1981).

211
Ind. Code § 31-6-6.1-6(a) (Supp. 1981) provides in part that:

Except for an action filed by the state department of public welfare or the

county department of public welfare under subsection (c), the mother, a man
alleging to.be the child's father, the state department of public welfare, or

the county department of public welfare must file an action within two (2)

years after the child is born, unless: (1) both the mother and the alleged

father waive the limitation on actions and file jointly; (2) support has been

furnished by the alleged father or by a person acting on his behalf, either

voluntarily, or under an agreement with: (A) the mother; (B) a person acting

on the mother's behalf; or (C) a person acting on the child's behalf; (3) the

mother, the state department of public welfare, or the county department of

public welfare, files a petition after the alleged father has acknowledged in

writing that he is the child's biological father; (4) the alleged father files a

petition after the mother has acknowledged in writing that he is the child's

biological father; (5) the petitioner was incompetent at the time the child was

born; or (6) a responding party cannot be served with summons during the
two (2) year period. A petition must be filed within two (2) years after any of
the above conditions ceases to exist.
212
Ind. Code § 31-6-6.1-6(a)(2) (Supp. 1981). But cf. Mills v. Harbluetzel, 102 S. Ct.

1549, 1557-58 (1982) (O'Connor, J., concurring) (implicitly questioning the constitu-

tionality of such a provision).
213
426 N.E.2d 129 (Ind. Ct. App. 1981).



790 INDIANA LAWREVIEW [Vol. 15:765

the party who seeks the advantage of this exception.214 Apparently,
the alleged father must provide little support in order to fall within
this exception. In H.W.K., the burden was sustained by a showing
that the father had furnished forty dollars for the child's support
and had purchased various items of clothing.215

C. Support

After the trial court finds that the "man is the child's biological
father, the court shall . . . conduct a hearing to determine the issues

of support, custody, and visitation."216 The court of appeals in Tarver
v. Dix211 found that the trial court committed reversible error by
failing to conduct such a hearing.218 Absent a hearing, the trial court

judge could not have determined properly the amount of support
the father should provide.219

The court of appeals in Tarver found that the trial court acted
improperly by imposing upon Tarver a one year suspended sentence
and probation for failure to secure bond to guarantee performance

of the support obligation.220 Although the code provides that the

trial court can require the posting of a bond,221 it does not authorize

probation or a jail sentence for failure to comply. The proper pro-
cedure for the trial court to enforce its order for a bond is for the
judge to utilize his contempt power.222

21i
Id. at 133.

215
Id. at 135.

216
Ind. Code § 31-6-6.1-10(a) (Supp. 1981).

217421 N.E.2d 693 (Ind. Ct. App. 1981).
218
Id. at 698.

219
Id. Ind. Code § 31-6-6.1-13(a) (Supp. 1981) provides in part that:

The court may order either or both parents to pay any reasonable amount
for child support after considering all relevant factors, including the following: (1)

the financial resources of the custodial parent; (2) the standard of living the child

would have enjoyed had the parents been married and remained married to

each other; (3) the physical and mental condition of the child and his educa-

tional needs; and (4) the financial resources and needs of the noncustodial

parent.
220
421 N.E.2d at 698.

221
Ind. Code § 31-6-6.1-14 (Supp. 1981) provides: "The court may require that the

parent obligated to make support payments provide appropriate security, bond, or
other guarantee to insure that he will fulfill his obligation." The prior statute, Ind.

Code § 31-4-1-22 (1971) (repealed 1978), provided in part:

On failure to furnish such bond the court may commit the father to jail for
not more than one (1) year. . . . Instead of committing the father to jail, or as

a condition of his release therefrom, the court may commit him to a proba-
tion officer, upon such terms and conditions regarding payments and per-

sonal reports as the court may direct.
222421 N.E.2d at 698.



1982] JUVENILE CODE 791

D. Change of Name

The court of appeals in D.R.S. v. R.S.H. 223 was presented with
the issue of whether a child's surname could be changed in a pater-
nity proceeding against the wishes of one of the parents.224 In a split

decision, the majority opinion held that in cases where the "natural
father acknowledges and supports his child born out of wedlock,

takes an interest in the child's welfare, and is not guilty of such

wrongdoing as would render retention of his name positively
deleterious to the child" the trial court judge would not abuse his

discretion by giving the child his father's surname.225 Both the con-

currence226 and the dissent227 in D.R.S. , however, stated that the

standard for this issue should be the best interests of the child.

The best interests of the child standard was applied in J.L.A. v.
T.B.S.

228 The court of appeals in J.L.A. recognized that the trial
court judge had "the power to order the surname of an illegitimate
child changed, however, to do so the court must determine such a
change is in the best interest of the child."229 In J.L.A., the trial

court judge had said that the general rule is that if the father pays

support, the surname of the child will be changed "to that of the
father in the absence of good reasons shown to the contrary." 230 The
court of appeals reversed and remanded the case to the trial court,
stating that the correct standard would be "whether the change is

in the best interest of the child."
231 The majority listed several fac-

tors which will help determine what is in the best interest of the
child. First, the name by which the child is currently known; second,
the convenience of keeping or changing the child's name; third,

whether the child owns property, and if so, under what name the
property is held; fourth, whether any confusion would result if the

child's name were to be changed; and finally, if the child is old
enough to offer a reasoned preference, the name the child desires.232

223412 N.E.2d 1257 (Ind. Ct. App. 1980).
224For a discussion of the case, see Rhine & Weinheimer, Domestic Relations, 1981

Survey of Recent Developments in Indiana Law, 15 Ind. L. Rev. 203, 222-23 (1982).
225412 N.E.2d at 1266. The majority emphasized that the father has a significant

"interest in having his child bear the paternal surname in accordance with tradition."

Id. at 1263. Also, if the child bears his mother's maiden name, then there is a "fair in-
dication that the child is illegitimate." Id. (quoting Petition of Harris, 236 S.W.2d 426,

429 (W. Va. 1977)).
228412 N.E.2d at 1266-67 (Sullivan, J., concurring).
22
7d. at 1267 (Shields, J., dissenting).

228
430 N.E.2d 433 (Ind. Ct. App. 1982).

229
/d.

230
Id. at 434.

23
7d.

232
Id. n.3.



792 INDIANA LAWREVIEW [Vol. 15:765

VII. Procedure in Juvenile Court

The juvenile code of 1978 altered several important aspects of
Indiana juvenile law procedure. The procedure sections of the new
code are in sections 31-6-7-1 to -17233 of the Indiana Code and contain
provisions affecting a wide range of juvenile procedural rights.

While there have been several articles dealing with the revisions in

the juvenile code,
234 the focus of this section will be on several re-

cent Indiana court cases interpreting the new code provisions.
In the area of procedure, two major concerns have emerged

from recent court interpretations of the new code. There is first the
standard of proof for juvenile acts. While the "beyond a reasonable

doubt" standard has been maintained for proof "that a child commit-

ted a delinquent act, or that an adult committed a crime,"235 all other

offenses need only meet a "preponderance of the evidence" test.236

This judicial construction concerning burden of proof has been ques-
tioned in light of In re Winship 237 and In re Gault 238 the two major
United States Supreme Court decisions affecting juvenile rights.

The second major concern involving the procedure sections of
the new code regards waiver of rights in a criminal setting. The
code establishes a new, strict formula that must be met before ad-
missions of a juvenile defendant may be used against him. The new
code requires an intelligent waiver by the child's parent, guardian,

or attorney.239 The child also must knowingly and voluntarily waive
his rights guaranteed by law.240 Two major decisions have been
handed down in this area interpreting the correct procedure for the
state to obtain admissions of a juvenile defendant.

241

A. Burden of Proof

The new Indiana Code section dealing with burdens of proof in
juvenile matters states: "A finding by a juvenile court that a child
committed a delinquent act, or that an adult committed a crime,
must be based upon proof beyond a reasonable doubt. Any other

233
Ind. Code §§ 31-6-7-1 to -17 (Supp. 1981).

2USee Kerr, Foreword: Indiana's New Juvenile Code, 12 Ind. L. Rev. 1 (1979);
Kiefer, This Code is Rated "R"—Second-Class Citizenship Under Indiana's New
Juvenile Code, 54 Ind. L.J. 621 (1979).

235
Ind. Code § 31-6-7-13U) (Supp. 1981).

236
Id.

237
397 U.S. 358 (1970).

238
387 U.S. 1 (1967).

239
Ind. Code § 31-6-7-3 (Supp. 1981).

™Id.
241Deckard v. State, 425 N.E.2d 256 (Ind. Ct. App. 1981); Adams v. State, 411

N.E.2d 160 (Ind. Ct. App. 1980).



1982] JUVENILE CODE 793

finding must be based upon a preponderance of the evidence."242

This codification of the requisite burdens was seen as potentially
conflicting with the standard mandated by the Indiana Supreme
Court.243 The court in Warner v. State 244 expressly stated that the
"beyond a reasonable doubt" standard only applied in situations in

which the act committed by the juvenile could be tried as a crime if

the act was committed by an adult. The court reasoned that "[t]he
application of this standard [reasonable doubt] in the determination

of delinquency ... is patently impractical, and we believe that it
would seriously interfere with the juvenile court's effectiveness in

carrying out its purposes."245 Though the court's decision in Warner
has been criticized as evading the real issue of legislative

authority,
246

a recent Indiana Court of Appeals decision has confirmed

the legislature's power in this area. In the case of Puntney v. Punt-
ney,

241 the court held that the legislature has the ability to set out

standards of proof as a procedural matter. It stated that because

burdens of proof in civil matters are of common law origin, the
legislature may vary the standard of proof necessary to carry the
argument.248

It is true that in some cases . . . the courts have developed a
higher intermediate standard of proof. That rule does not ap-

pear to have a constitutional basis, but rather, seems to have
been founded in the common law. Therefore, at the will of
the legislature, it can be changed, as was done.249

Because the court failed to question the validity of the change in the

standard of proof pursuant to the supreme court decision in
Warner 250 the legislative standard of proof will be used by the
courts in future proceedings.

B. Waiver

The provision in the code that allows a juvenile to waive rights
guaranteed by the United States Constitution, the Indiana Constitu-

tion, and all other applicable statutes has caused the greatest con-

troversy in the procedural sections of the code. The waiver provi-
sion of the code states in part:

242
Ind. Code § 31-6-7-13(a) (Supp. 1981).

243See Kerr, supra note 49, at 26.
244254 Ind. 209, 258 N.E.2d 860 (1970).
2i5
Id. at 214, 258 N.E.2d at 864-65.

246See Kerr, supra note 49, at 23.
247420 N.E.2d 1283 (Ind. Ct. App. 1981).
248
/d. at 1286.

249
/d.

250
254 Ind. 209, 258 N.E.2d 860 (1970).



794 INDIANA LAW REVIEW [Vol. 15:765

(a) Any rights guaranteed to the child under the Constitution
of the United States, the Constitution of Indiana, or any

other law may be waived only:
(1) by counsel retained or appointed to represent the child, if

the child knowingly and voluntarily joins with the waiver; or

(2) by the child's custodial parent, guardian, custodian, or

guardian ad 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 per-
son and the child; and

(D) the child knowingly and voluntarily joins with the

waiver.251

The waiver provision of the code arises out of the Indiana
Supreme Court case of Lewis v. State.2*2 In Lewis, the court noted
the absence of a valid method for determining whether a juvenile
had been adequately informed of his rights prior to a waiver.253 The
court set out a very specific test in order to assure that juveniles

made a fair and knowing waiver of their rights:

[A] juvenile's statement or confession cannot be used against

him at a subsequent trial or hearing unless both he and his

parents or guardian were informed of his rights to an at-
torney, and to remain silent. Furthermore, the child must be
given an opportunity to consult with his parents, guardian or

an attorney representing the juvenile as to whether or not

he wishes to waive those rights. After such consultation the

child may waive his rights if he so chooses provided of
course that there are no elements of coercion, force or in-

ducement present.254

The juvenile code attempted to incorporate nearly all of the pro-
visions in Lewis but added a section that has been the cause of two
recent Indiana court cases. Specifically, the legislature, instead of

putting the parents in a consulting role regarding the child's waiver,

placed the emphasis of the waiver on the parents by allowing them
an absolute veto to a voluntary waiver of the child's rights.

In Deckard v. State 255 the Indiana Court of Appeals held that
there must be strict compliance with the waiver provisions of the
new code. The code provides that a juvenile's rights may be waived

251
Ind. Code § 31-6-7-3U) (Supp. 1981).

252
259 Ind. 431, 288 N.E.2d 138 (1972).

253
Id. at 436, 288 N.E.2d at 141.

25i
Id. at 439, 288 N.E.2d at 142.

255425 N.E.2d 256 (Ind. Ct. App. 1981).



1982] JUVENILE CODE 795

by a parent or guardian but does not authorize a minor to waive his

own rights.256 Although Deckard's mother was with him when he
allegedly waived his fourth amendment rights, the subsequent
search and seizure by police was held to be invalid because the
mother had not signed any document purporting to have waived the
child's rights. The court held that because the letter of the law was
not met,257 the incriminating evidence could not be admitted.258 This

decision appears to indicate the court's unwillingness to accept a

waiver argument based solely on the fact that there was an oppor-
tunity for meaningful counsel.

In another recent case, the court of appeals dealt with a waiver

by default when a minor, charged with a crime, requested counsel
and was denied appointment of an attorney because of his parents'
ability to pay. In Adams v. State™ the court ruled that the state's
failure to provide an attorney in the matter constituted an illegal

waiver of the child's right to counsel and the conviction was
therefore reversed.260 While the state in Adams contended that the
juvenile had constructively waived his right to an attorney because

the mother could afford counsel and therefore the state need not

supply an attorney, the court found that the "waiver" was invalid
under the statute and reversed the conviction. "If the juvenile court

determines that the child is without an attorney and the child has

not waived his right to counsel, the court must appoint counsel to

represent the child."
261 The court in Adams again upheld the strin-

gent waiver standards of the code and rejected the theory that a

constructive waiver of rights may be made.
A review of the recent decisions in the area of juvenile pro-

cedure under the new code would suggest that Indiana courts are
willing to follow the strict mandates set out by the Indiana
legislature. Both Deckard2*2 and Adams263 show that the court of ap-
peals will strictly construe the new waiver statute so as to provide
an effective and meaningful limitation on juvenile waiver of rights.

Puntney2™ clearly indicates that the court is willing to use the stand-
ards of proof set out in the code provisions. In the area of juvenile

procedure, Indiana cases since the enactment of the code have

upheld both the meaning and the spirit of the statute.

256
Id. at 257.

257
Id.

258
Id.

259
411 N.E.2d 160 (Ind. Ct. App. 1980).

260
/d. at 163.

m
Id. at 162.

262
425 N.E.2d at 256.

263411 N.E.2d at 160.
264420 N.E.2d at 1283.



796 INDIANA LAW REVIEW [Vol. 15:765

VIII. Conclusion

Since its enactment in 1978, the juvenile code has undergone

various revisions by the legislature and interpretation by the courts.

Both branches of the state government, however, have adhered to

the general purposes espoused by the 1978 code in ensuring that the

"best interests" of the child are preserved. Major refinements in-

clude clarifying the definition of a child in need of services,

establishing a standard for termination of the parent-child relation-

ship, determining the type of evidence necessary to rebut the

presumption of paternity, and defining the type of waiver acceptable

for later court proceedings. Although further interpretations and

refinements may be necessary to make the code a complete juvenile
justice plan,

265 the clarifications made by the legislature and courts
to date have upheld the meaning and spirit envisioned for the new
juvenile code.

5See Kerr, supra note 49, at 29.