ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JAN B. BERG STEVE CARTER
Indianapolis, Indiana Attorney General of Indiana
GRANT H. CARLTON
Deputy Attorney General
IN THE MATTER OF B.R., ) ) Appellant-Defendant, ) ) vs. ) No. 49A02-0404-JV-322 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
OPINION FOR PUBLICATION
Whether there is sufficient evidence to support the delinquency adjudication.
Ind. Code § 31-37-10-2 (emphases added).
In support of his argument, B.R. cites our decision in K.S. v. State, 807 N.E.2d 769 (Ind. Ct. App. 2004), affd on rehg, 816 N.E.2d 1164 (Ind. Ct. App. 2004), trans. pending. In that case, we applied the long-standing and well-settled principle that certain steps must be taken before the commencement of a juvenile delinquency proceeding, including express court approval for the filing of a delinquency petition. Id. at 770-71 (citing, e.g., Taylor v. State, 438 N.E.2d 275, 277 (Ind. 1982)). We agree with B.R. that the juvenile court erred when it did not expressly approve the filing of the delinquency petition.
The concurring opinion See footnote attempts to distinguish K.S. from the instant case and asserts that the juvenile court properly assumed jurisdiction over B.R. because strict compliance with the statutory prerequisites to obtaining juvenile jurisdiction is necessary only when a juvenile does not have a history of delinquency adjudications. See slip op. at 2. See footnote But our legislature has specified the circumstances under which a juvenile court may retain jurisdiction over a juvenile. See Ind. Code §§ 31-30-2-1, 31-30-2-3. According to Indiana Code Section 31-30-2-1:
(a) [T]he juvenile courts jurisdiction over a delinquent child . . . and over the childs parent, guardian, or custodian continues until:
the child becomes twenty-one (21) years of age, unless the
court discharges the child and the childs parent, guardian, or
custodian at an earlier time; or
(2) guardianship of the child is awarded to the department of correction.
I.C. § 31-30-2-1; see In re Tina T., 579 N.E.2d 48, 61 (Ind.
1991). Further, after being divested of jurisdiction, the juvenile court may reacquire
jurisdiction only through the means set forth in Indiana Code Section 31-30-2-3.
J.J.M. v. State, 779 N.E.2d 602, 607 (Ind. Ct. App. 2002). That
statute permits the juvenile court to reinstate jurisdiction for the purpose of modifying
its original dispositional decree, but reinstatement must occur within thirty days of receiving
notice of the date on which the Department of Correction intends to release
a child from its custody. See I.C. § 31-30-2-3; J.J.M., 779 N.E.2d
at 607 n.1 (citing W.L. v. State, 707 N.E.2d 812, 813 (Ind. Ct.
In S.W.E. v. State, 563 N.E.2d 1318, 1320-22 (Ind. Ct. App. 1990), this court was presented with the same issue raised by B.R., namely, whether the juvenile court acquired jurisdiction when it did not approve the filing of the delinquency petition. See footnote On April 19, 1989, S.W.E. had been adjudicated delinquent for the illegal consumption of alcohol by a minor and was placed on six months probation. Id. at 1319. Later that same month, S.W.E. was also charged with delivery of a schedule I controlled substance, which formed the basis for his appeal. Id. This court acknowledged that the juvenile court did not follow the required procedural steps to obtain jurisdiction but, nevertheless, held that the court had already acquired jurisdiction in the prior delinquency adjudication. Id. at 1321. But the very next paragraph of the opinion clarifies that holding:
Pursuant to Indiana Code Section 31-6-2-3 the juvenile courts jurisdiction over any delinquent child continues until the child reaches his twenty-first birthday unless the court before then either discharges the child or awards guardianship of him to the [D]epartment of [C]orrections [sic]. None of those events had occurred when the delinquency petition regarding delivery of a controlled substance was filed and the waiver hearing conducted. Thus, the court already had jurisdiction of S.W.E. and the further proceedings that were held protected his due process rights. There was no failure to acquire jurisdiction.
Id. (emphasis added).
And in W.L., 707 N.E.2d at 813, we held that the juvenile court was divested of jurisdiction over W.L. once it had entered the dispositional decree. On January 8, 1998, after W.L. had been adjudicated a delinquent child, the juvenile court ordered that W.L. be placed on suspended commitment, ordered family counseling, entered a parental participation order, and ordered that W.L. do extra chores in his home. Id. The prosecutor later discovered that he had inadvertently omitted the victims claim for restitution, and on January 22, 1998, the State filed a Motion to Reopen for Restitution. Id. Relying on Indiana Code Section 31-30-2-1, we held that the juvenile court discharged W.L. and his parents in the dispositional decree and that, as a result, the juvenile court lacked jurisdiction to rule on the States motion. Id. at 814. See footnote
Taken together, S.W.E. and W.L. demonstrate that the jurisdiction of a juvenile court in a subsequent proceeding turns not on the existence of a prior delinquency adjudication, but on the contents of the dispositional decree in the prior proceeding and the date it was entered. We cannot agree with the import of the concurring opinion that the juvenile court retains jurisdiction over every child ever adjudicated a delinquent or because a particular child has been a frequent customer of the juvenile court. See slip op. at 2-3.
Here, B.R. has been adjudicated a delinquent on four previous occasions. But on three of those occasions, the court awarded guardianship of B.R. to the Department of Correction, an act that terminates a juvenile courts jurisdiction. See I.C. § 31-30-2-1(a)(2). Further, the court did not move to reinstate its jurisdiction over B.R. within thirty days of receiving notification from the Department of Correction of B.R.s scheduled date of release. See I.C. § 31-30-2-3; J.J.M., 779 N.E.2d at 607; W.L., 707 N.E.2d at 813. And punishment for the fourth adjudication, which involved a finding of truancy, consisted of formal home detention. The preliminary inquiry and investigation report reveals that the matter was closed on October 19, 2001, which indicates that B.R. and his parents had been discharged in accordance with Indiana Code Section 31-30-2-1(a)(1) and that the juvenile court had been divested of jurisdiction. See W.L., 707 N.E.2d at 813. As K.S. emphasizes, Indiana courts have held for many years that strict compliance with the statutory prerequisites for obtaining jurisdiction at the commencement of delinquency proceedings is required of juvenile courts. 807 N.E.2d at 770. In this case, the juvenile courts jurisdiction had been terminated in each of the previous four delinquency proceedings, and, for that reason, the juvenile court erred when it did not expressly approve the filing of the delinquency petition.
We cannot agree with the concurring opinions position that the juvenile court retained jurisdiction over B.R. due to his previous delinquency adjudications and, therefore, could dispense with the statutory requirement that it expressly authorize the filing of the delinquency petition. The concurring opinion argues that it is more practical to presume that it is in the best interests of the child or the community to initiate a formal delinquency proceeding with respect to subsequent delinquency allegations without the juvenile court having to enter a formal finding to that effect. Slip op. at 2. While this may be so, the legislature has unambiguously specified otherwise. See I.C. § 31-37-10-2 (stating that the juvenile court shall . . . [a]pprove the filing of a [delinquency] petition if probable cause exists to believe that the child is delinquent and that commencement of a delinquency proceeding is in the best interests of the child or the public) (emphasis added). And when the legislature acts, the judiciary should refrain from substituting its beliefs for that of the legislature in determining the wisdom or efficacy of a particular statute. Mahowald v. State, 719 N.E.2d 421, 424 (Ind. Ct. App. 1999); see also Indiana Civil Rights Commn v. Indianapolis Newspapers, Inc., 716 N.E.2d 943, 946 (Ind. 2002) (Nothing may be read into a statute which is not within the manifest intention of the legislature as ascertained from the plain and obvious meaning of the words of the statute.) (quotations and citation omitted). Nevertheless, the juvenile courts failure to expressly approve the filing of the delinquency petition is not dispositive. Rather, we must determine whether B.R. has waived that issue on appeal by failing to make a timely objection to that jurisdictional defect.
BARNES, Judge, concurring in result in part and concurring in part.
I concur fully in rejecting B.R.s challenge to the sufficiency of the evidence supporting his delinquency adjudication. I concur in result only on the jurisdictional issue. As the author of K.S., I am aware that many of my colleagues, including the majority here, do not subscribe to my reasoning in these juvenile jurisdiction cases with respect to the non-waivability of certain errors. However, as a matter of both legality and practicality, I am convinced of the correctness of K.S.s holding. I would note that the majority here, much like the M.B. panel, has failed to address the long line of cases noted in K.S. supporting the proposition that court approval for the filing of a first delinquency petition is one of several documents that absolutely must be included in the record, and that the failure of the record to disclose such a document is a fatal, non-waivable error. See, e.g., Seay v. State, 167 Ind. App. 22, 37, 337 N.E.2d 489, 498 (1975) (holding that the order of the juvenile court authorizing the filing of a delinquency petition is one of the essential documents needed when considering a challenge to juvenile jurisdiction and that we would sua sponte address jurisdictional issues, even if not raised by the appellant); Kindred v. State, 493 N.E.2d 467, 470-71 (Ind. Ct. App. 1986) (holding that failure of record to disclose necessary prerequisites for initiating juvenile delinquency proceeding invalidated twenty-year-old criminal conviction for theft after juvenile was waived into adult court). See footnote The majority here is guilty of what I see as a legalistic bait-and-switch, and have cited general cases discussing the three types of jurisdiction in concluding that a juvenile must object to the failure to approve the filing of a delinquency petition or the issue is waived. In my view, it is a matter for our supreme court to decide whether to ignore or overrule established precedent that specifically applies to juvenile delinquency proceedings.
However, I am just as convinced that once a child has been in the juvenile system and adjudicated a delinquent child, the importance in later cases of strict compliance by a juvenile court with the statutory prerequisites to commencing a formal delinquency proceeding diminishes. Here, B.R. was a frequent customer of the juvenile delinquency process; he had been adjudicated a delinquent child on four occasions prior to the current incident. There is no indication that the validity of any of these prior adjudications has ever been challenged.
As a matter of logic and practicality, when a child has already been through the system once before, it may be properly presumed that it is in the best interests of the child or the community to initiate a formal delinquency proceeding with respect to subsequent delinquency allegations without the juvenile court having to enter a formal finding to that effect. In S.W.E. v. State, 563 N.E.2d 1318, 1321 (Ind. Ct. App. 1990), we held the juvenile court was not required to comply strictly with all of the statutory steps for juvenile jurisdiction where the child previously had been adjudicated delinquent, had not been discharged by the juvenile court, and the DOC had not been awarded guardianship of the child as a result of the first delinquency adjudication. In my view, the fact that the juvenile court here previously may have awarded guardianship of B.R. to the DOC, only to have him get into trouble again after being released by the DOC, should not be dispositive nor should it require a different result from S.W.E.
I maintain that with respect to a child being considered for the first time for a formal delinquency proceeding, the juvenile court must approve the filing of a delinquency petition by expressly noting on the record that there is probable cause of delinquency and that it is in the best interests of the child or community to commence a formal proceeding. See K.S., 807 N.E.2d at 770-71. I also believe this a non-waivable requirement. See id. at 774-75. With respect to subsequent delinquency allegations against a child who has already been adjudicated delinquent on at least one prior occasion, the rationale of K.S. is less compelling. See id. at 773 n.5. I would hold that B.R.s four previous trips through the juvenile justice system rendered strict compliance with all the steps for commencing a fifth delinquency proceeding unnecessary and affirm on that basis.