Attorneys for Appellant Attorney for Appellees
Steve Carter Katherine Cornelius
Attorney General of Indiana Marion County Public Defender
Deputy Attorney General Attorney for Appellee
Indianapolis, Indiana Child Advocates, Inc.
Loretta A. Olesky
Appeal from the Marion Superior Court
On Petition To Transfer from the Indiana Court of Appeals, No. 49A04-0205-JV-239
Represented by counsel, on September 12, 2001, K.G. filed a motion for psychiatric
examination to determine competence to stand trial. Appellants App. at 47.
Invoking the provisions of Indiana Code section 35-36-3-1, the motion sought the appointment
of two or three disinterested psychiatrists or other qualified practitioners to examine Respondent
. . . and report to this Court on his competence to stand
trial . . . . Id. On June 7, 2000, counsel
for D.C.B. filed a similar motion. On November 22, 1999, on behalf
of D.G., counsel filed a motion captioned Notice of Insanity Defense and Incompetency
to Stand Trial. Id. at 62. Also invoking Indiana Code section
35-36-3-1 the motion alleged among other things that D.G. was unable [to] understand
the trial process and the role of the judge, attorney and prosecutor and
that he will not be able to assist [the attorney] in his defense
. . . . Id.
Although the record is not altogether clear, apparently the trial court granted each of the foregoing motions appointing various health care professionals to evaluate the juveniles. In October 2001, two different health care professionals evaluated K.G. Dr. David J. Posey, a Child and Adolescent Psychiatrist, concluded, It is clear that [K.G.] has little to [no] knowledge about court proceedings, understanding of matters essential to cooperating with ones lawyer, or range of possible consequences . . . . Based on the results of this competency evaluation as well as his mild to moderate mental retardation and autism, an opinion that [K.G.] is not competent to stand trial would find support. Appellees App. at 14. In similar fashion, Dr. Paul Aleksic, a clinical psychologist, reported that K.G. is autistic and moderately to mildly mentally handicapped. According to Dr. Aleksic, [K.G.] is marginally able to comprehend the wrongfulness of his action but is not competent to control his actions. He further is not sufficiently mentally competent to aid in his court defense. Id. at 12.
In July 2000, Dr. Posey examined D.C.B. noting that the juvenile functioned significantly
below average intelligence. Dr. Posey noted a recent psychiatric diagnosis that included
major depression, oppositional defiant disorder, attention-deficit/hyperactivity disorder (ADHD), and mild to moderate mental
retardation. Id. at 19. Dr. Posey concluded that D.C.B. did not
have an adequate understanding of court proceedings, possible consequences, or the ability to
cooperate with his lawyer. According to Dr. Posey, [g]iven [D.C.B.]s young age,
mental retardation, and demonstrated lack of understanding of the proceedings against him, an
opinion that [D.C.B.] is incompetent to stand trial would find support. Id.
at 20. In September 2000, Dr. Aleksic also examined D.C.B. and noted
that he appears to present a psychotic disorder along with at least a
mild mental handicap. Id. at 22. Among other things Dr. Aleksic
concluded that D.C.B is not viewed as competent to aid in his court
defense or to understand the consequences of his actions. Id.
In December 1999, Dr. Aleksic examined D.G. and concluded that he was mildly
mentally handicapped, had limited intellectual ability, and that the overall finding[s] do not
suggest that he is competent to aid in his defense. Appellants App.
at 67. In May 2000 and again in September 2000, Dr. Posey
also examined D.G. Although concluding that D.G. did not meet the legal
definition of insanity, Dr. Posey determined that D.G. is mildly mentally retarded, exhibited
symptoms of ADHD, and concluded that D.G. is largely ignorant of court proceedings
and how he could best work with his lawyer and consequently D.G. was
not competent to stand trial. Appellees App. at 32.
As for J.J.S., the record shows that on November 20, 2000, she entered
a plea agreement with the State under which she admitted committing burglary and
the State dismissed the charge of theft. The trial court accepted the
agreement and scheduled a dispositional hearing for December 20, 2000. The record
is unclear as to whether a hearing was conducted on that date or
what might have transpired. In any event the record shows that at
some point the court entered an order for a psychological evaluation to determine
J.J.S. competency to understand the proceedings. The evaluation, conducted by Dr. Aleksic
on March 28, 2001, revealed that J.J.S. is moderately to mildly mentally handicapped
and functionally illiterate. Id. at 5. Dr. Aleksic concluded that [J.J.S.]
is not accountable for her actions and is not viewed as competent to
understand the court process. Id. at 7.
The record shows that all four juveniles were placed in various residential treatment
See footnote In March 2002, the trial court entered an order finding that
each of the juveniles lacked the ability to understand the proceedings and to
assist in the preparation of their respective defenses. The trial court thus
ordered the juveniles committed to the division of mental health for confin
an appropriate psychiatric institution.
Thereafter the State of Indiana, through the mental health division of the Family
and Social Services Administration, filed a motion to intervene in this action.
The trial court granted the motion. Subsequently, the State filed a motion
for relief from judgment under Indiana Trial Rule 60(B) requesting the trial court
to vacate its order. The trial court denied the motion and the
State appealed. On review the Court of Appeals affirmed the trial courts
judgment. In re K.G., 781 N.E.2d 700 (Ind. Ct. App. 2002).
Having previously granted transfer, we now reverse the judgment of the trial court.
We agree that a juvenile alleged to be delinquent has the constitutional right
to have her competency determined before she is subjected to delinquency proceedings.
A juvenile charged with delinquency is entitled to have the court apply those
common law jurisprudential principles which experience and reason have shown are necessary to
give the accused the essence of a fair trial. See In re
Gault, 387 U.S. 1, 30 (1967). Without question, these include the right
to adequate notice of the charges, appointment of counsel, the constitutional privilege against
self-incrimination, and the right to confront opposing witnesses. Id. at 31, 34,
39, 41, 42, 56. The cornerstone of these substantive rights is competence
to understand the nature of the charge and to assist in a defense.
In our view the want of competence renders the other rights meaningless.
[N]either the Fourteenth Amendment nor the Bill of Rights is for adults
alone. Id. at 13. It has long been accepted that a
person whose mental condition is such that he lacks the capacity to understand
the nature and object of the proceedings against him, to consult with counsel,
and to assist in preparing his defense may not be subjected to a
trial. Drope v. Missouri, 420 U.S. 162, 171 (1975); see also Wallace
v. State, 486 N.E.2d 445, 453 (Ind. 1985) (An accused has a constitutional
right not to be tried if he does not have the ability to
comprehend the proceedings or to assist in his defense.). Principles of fundamental
fairness require that this right be afforded in juvenile proceedings. Thus, we
summarily affirm the opinion of the Court of Appeals on this issue.
We disagree with our colleagues, however, on the applicability of the adult competency
The juvenile court system is founded on the notion of parens patriae, which
allows the court the power to step into the shoes of the parents.
Children, by definition, are not assumed to have the capacity to take
care of themselves. They are assumed to be subject to the control
of their parents, and if parental control falters, the State must play its
part as parens patriae. Schall v. Martin, 467 U.S. 253, 265 (1984);
see also Santosky v. Kramer, 455 U.S. 745, 766 (1982) (The State has
a parens patriae interest in preserving and promoting the welfare of the child).
The parens patriae doctrine originated in fifteenth-century England in the Kings Court.
Sarah Ramsey & Daan Braveman, Let Them Starve: Governments Obligation to
Children in Poverty
, 68 Temp. L. Rev. 1607, 1634 (1995). The Kings
Court would take the place of parents who had neglected or abandoned their
The parens patriae doctrine originally emphasized the importance of maintaining the family unit by allowing parents to raise their children as they saw fit without interference by the state. The states role was supplementary and was justified only when there was a compelling reason, such as protecting the child from parental abuse. Yet, when a benevolent court was precluded from acting in its parens patriae role, juvenile offenders faced punishment akin to hardened criminals. Reformers efforts to change this practice resulted in the establishment of a separate court system that replaced traditional notions of punishment with a clinical approach emphasizing rehabilitation and treatment.
Kristina H. Chung, Note, Kids Behind Bars: The Legality of Incarcerating Juveniles in Adult Jails, 66 Ind. L.J. 999, 1009 (1991) (footnotes omitted).
Adopted by American common law, the parens patriae doctrine gives juvenile courts power
to further the best interests of the child, which implies a broad discretion
unknown in the adult criminal court system. See Joyce L. Alexander, Aligning
the Goals of Juvenile Justice With the Needs of Young Women Offenders: A
Proposed Praxis For Transformational Justice, 32 Suffolk U. L. Rev. 555, 560 (1999)
the broad discretion afforded to juvenile court judges and the case-by-case treatment
orientation of the juvenile court). [T]he rationale for a separate juvenile court
is to a large extent grounded in the concept of individualized sentencing, and
the broad discretion given to juvenile court judges that it implies. Donald
J. Harris, Due Process v. Helping Kids in Trouble: Implementing the Right to
Appeal From Adjudications of Delinquency in Pennsylvania, 98 Dick. L. Rev. 209, 217
In the 1960s and 1970s, the Warren and Burger Courts decided a number
of cases that broadened juveniles rights under the Constitution and limited juvenile courts
See, e.g., Breed v. Jones, 421 U.S. 519 (1975) (juveniles have
right against double jeopardy); In re Winship, 397 U.S. 358 (1970) (juveniles must
be convicted on proof beyond reasonable doubt); Gault, 387 U.S. at 31, 34,
39, 41, 42, 55, 56 (juveniles have right to sufficient notice, right to
counsel, right to be informed of the right to counsel, right against self-incrimination,
and right to confrontation and cross-examination); Kent v. United States, 383 U.S. 541
(1966) (full investigation required before waiver to adult court); Gallegos v. Colorado, 370
U.S. 49 (1962) (minors protected from coerced confessions).
Despite these broadened protections, the U.S. Supreme Court has affirmed that the state
parens patriae interest in preserving and promoting the welfare of the
Santosky, 455 U.S. at 766. The differences between adult and
juvenile courts remain; this is because although children generally are protected by the
same constitutional guarantees against governmental deprivations as are adults, the State is entitled
to adjust its legal system to account for childrens vulnerability and their needs
for concern, . . . sympathy, and . . . paternal attention.
Bellotti v. Baird, 443 U.S. 622, 635 (1979) (quoting McKeiver v. Pennsylvania, 403
U.S. 528, 550 (1971)). Chief Justice Burger noted that a difference between
the adult criminal system and the juvenile system is the flexibility and informality
of juvenile proceedings . . . . Breed, 421 U.S. at 535
n.15; see also Chung, supra, at 1011 (observing that parens patriae power grant[s]
substantial leeway to officials in the judicial system to justify their determination of
what constitutes rehabilitation or treatment); John D. Goetz, Note, Childrens Rights Under the
Burger Court: Concern for the Child But Deference to Authority, 60 Notre Dame
L. Rev. 1214, 1223 (1985) (noting the informality and flexibility of the
Affording juvenile courts broad discretion throughout all phases of the
juvenile court proceedings is widely considered central to the rehabilitative model. Deel
v. Jago, 967 F.2d 1079, 1091 (6th Cir. 1992).
The juvenile courts purpose is more reformative than punitive. Thus, in juvenile court, technicalities and formalities are largely done away with, and its simple procedure is designed to gain the confidence of those coming within its operations, and to enable the judge thereof to best guide and control its wards . . . . The due process clause applies in juvenile proceedings, but a juvenile [court] must respect the informality and flexibility that characterize juvenile proceedings while insuring that such proceedings comport with the fundamental fairness demanded by the due process clause. [T]he rules of procedure in a juvenile proceeding where the life and liberty of the juvenile delinquent are at stake should be measured by the gravity of the situation and the exigencies the case may impel, with every safeguard against rendering the child the victim of oppression and skullduggery.
47 Am. Jur. 2d Juvenile Courts § 6 (1995).
Indiana Code section 31-32-1-1 provides, If a child is alleged to be a
delinquent child, the procedures governing criminal trials apply in all matters not covered
by the juvenile law. It is true that the juvenile code does
not provide an explicit procedure for handling juvenile competency issues. Nonetheless, in
construing a statute our main objective is to determine, give effect to, and
implement the intent of the legislature.
Neal v. DeKalb County Div. of
Family & Children, 796 N.E.2d 280, 284 (Ind. 2003). As a matter
of statutory interpretation, and considering the history and purpose underlying the juvenile code,
we do not believe the Legislature intended that the adult competency statute should
apply to juveniles.
The policy of this State and the purpose of our juvenile code are to ensure that children within the juvenile justice system are treated as persons in need of care, protection, treatment, and rehabilitation. I.C. § 31-10-2-1(5). The code must be liberally construed to that end. To promote this policy and purpose, our Legislature has created a comprehensive civil forum for treating and protecting juveniles, replete with distinctions between criminal matters and matters concerning alleged delinquents. Under the juvenile code, the juvenile court acts not only as adjudicator of legal responsibility but also as administrator of probation, detention, and many related child and family social service programs. State ex rel. Camden v. Gibson Circuit Court, 640 N.E.2d 696, 698 (Ind. 1994). In fact the Legislature has delegated to our juvenile courts the principal responsibility, in conjunction with the Indiana Family and Social Services Administration and our public school corporations, of achieving the purposes of our juvenile code. The responsibility includes: protecting the public by enforcing the legal obligations children have to society, insuring that children within the juvenile justice system are treated as persons in need of care, treatment, rehabilitation, or protection, and strengthening family life by assisting parents to fulfill their parental obligations. Id. at 698; see also I.C. § 31-10-2-1.
In essence the code affords juvenile courts a degree of discretion and flexibility,
unparalleled in the criminal code, to address the needs of children and to
act in their best interests. That flexibility is severely compromised by resorting
to the procedures set forth in the adult competency statute when resolving questions
concerning juvenile competency. More specifically, the statute mandates that where a defendant
is found to be incompetent to stand trial, the trial court
. . order the defendant committed to the division of mental health and
addiction, to be confined by the division in an appropriate psychiatric institution.
I.C. § 35-36-3-1(b) (emphasis added). There certainly are occasions where it may
not be in the childs best interest to be committed to the division
of mental health. For example, as the State points out the division
currently operates only three facilities that provide care for children: Larue Carter Memorial
Hospital in Indianapolis, Evan
sville State Psychiatric Treatment Center for Children, and Richmond State
See footnote And although the juvenile court judge made no specific factual finding,
he did note that he is aware that the division of mental health
has acknowledged that it does not currently have available appropriate facilities or programs
to meet the mental health needs of these Respondents . . . .
Appellants App. at 34 (order of court dated March 19, 2002);
also I.C. § 12-26-1-4 (declaring in the context of voluntary or involuntary commitment
he juvenile court may not commit or temporarily place a child under
this article in a facility other than a child caring institution
In addition to the lack of adequate facilities or programs, because of the
physical location of these state run facilities, a juvenile committed to the division
of mental health under the auspices of the adult competency statute could be
confined in an institution hundreds of miles from home and family. This
could not have been the intent of the Legislature. Even in the
context of a child found to be delinquent, the trial court is prohibited
from placing the child in a facility outside of the childs county of
unless placement of the child in a comparable facility with adequate services
located in the childs county of residence is unavailable or the childs county
of residence does not have an appropriate comparable facility with adequate services
I.C. § 31-37-19-23;
see also I.C. § 31-37-18-6 (requiring the juvenile court to
enter a dispositional decree that, among other things, is in the least restrictive
(most family like) and most appropriate setting available; [is] close to the parents
home, consistent with the best interest and special needs of the child; [and]
provides a reasonable opportunity for participation by the childs parent, guardian, or custodian).
In our view no less is required for juveniles only alleged to
This is not to say that a juvenile court is prohibited from entering
an order committing a child found to be incompetent to an appropriate facility
operated by the department of mental health. We merely hold that the
adult competency statute is not the proper vehicle to accomplish this end.
Rather we believe Indiana Code section 31-32-12-1 is sufficient to the task.
If narrowly construed the statute allows for the examination and treatment of children
under only three circumstances: (1) before the filing of a delinquency or CHINS
petition, if an emergency exists, the court may order an examination or treatment;
(2) after the filing of a delinquency or CHINS petition, the court may
order an examination of the child to provide information for the dispositional hearing;
and (3) after a child has been adjudicated a delinquent or CHINS, the
court may order examination or treatment as a part of the dispositional decree.
This is the view advanced by Marion County on behalf of the
juveniles in this case and to which the Court of Appeals agreed.
Viewed slightly differently, however, the statute is more comprehensive. More specifically the
statute provides [t]he court may also order medical examinations and treatment of the
child under any circumstances otherwise permitted by this section. I.C. § 31-32-12-1(3).
Although the statute does not specifically mention competency, given a juvenile courts
flexibility in addressing the needs of children and acting in their best interest,
we conclude that this sta
tute allows for the examination and/or treatment of a
child after a delinquency petition has been filed in order to determine the
Shepard, C.J., and Dickson and Boehm, JJ., concur.
Sullivan, J., not participating.