ATTORNEY FOR RELATOR                 ATTORNEY FOR RESPONDENT
                                
Daniel C. Schroeder                    James W. Payne, Judge
Indianapolis, IN                     Indianapolis, IN

ATTORNEY FOR AMICUS CURIAE            ATTORNEYS FOR AMICUS CURIAE
MARION COUNTY PUBLIC DEFENDER            INDIANA COUNCIL OF JUVENILE
AGENCY, APPELLATE DIVISION            AND FAMILY COURT JUDGES
Katherine A. Cornelius James A. Masters Indianapolis, IN South Bend, IN

Harold E. Brueseke South Bend, IN

STATE OF INDIANA EX REL. W.A.                      )
                                                        )
    Relator,                                            )
                                                        )
        v.                                              )  Cause No. 49S00-9803-OR-154
                                                        )
THE MARION COUNTY SUPERIOR COURT,                       )
JUVENILE DIVISION, AND THE                              )
HONORABLE CAROL ORBISON, AS                             )
MAGISTRATE THEREOF, AND THE                             )
HONORABLE JAMES W. PAYNE, AS                            )
JUDGE THEREOF,                                          )
                                                        )
    Respondents.                                        )

    On February 5, 1998, the Marion County Prosecutor filed a petition to declare W.A. delinquent. The petition alleged that W.A. had committed the act of disorderly conduct, a class B misdemeanor if committed by an adult, by fighting at school and causing injury to another child. See Ind. Code Ann. § 35-45-1-3 (West 1998). The court held an initial hearing on the petition the day it was filed. At the initial hearing, W.A. denied the allegations of the delinquency petition. The court scheduled a "Denial Hearing," or fact-finding hearing, for March 19, 1998. It then released W.A. to the custody of his grandfather under "informal home detention," meaning that "the child will remain at home: At all times, Except when accompanied by a Parent, Except when at School and Except when at Work."See footnote 1 (R. at 6.) Defense counsel objected to the imposition of conditions on W.A.'s release.

    On February 23, 1998, W.A. moved the court to hold the fact- finding hearing on his delinquency and to review his home detention order by March 5, 1998, his twentieth day of detention.See footnote 2 The court denied that motion on February 26, 1998.See footnote 3

    W.A. initiated this original action on March 11, 1998. He alleges that the trial court has exceeded its jurisdiction by unlawfully ordering home detention and by ordering detention for a longer period than authorized by statute.

Pickard v. Superior Ct. of Marion County, 447 N.E.2d 584 (Ind. 1983).See footnote 4 A successful relator must also show a clear and obvious emergency such that the failure of this Court to act will result in substantial injustice. State ex rel. Kiritsis v. Marion Probate Ct., 381 N.E.2d 1245 (Ind. 1978).

before the court at a time specified.'" (Id. (quoting Ind. Code Ann. § 31-37-6-6(a) (West Supp. 1998)).)

    In response, the trial judge argues that Indiana's juvenile courts inherently possess the power to order various forms of home detention. (Respondent's Br. at 5.) Judge Payne asserts that home detention is "in keeping with the intent and design of the Juvenile Code," (id. at 7), and "[t]he inability of the courts to use programs of home detention/house arrest would materially undermine the authority of the court," (id. at 6). We agree.

    Indiana was the second state in the nation to create special courts for what was early called "child-saving."See footnote 5 Modern Indiana juvenile courts possess broad powers to protect and serve the interests of the state's children and communities.See footnote 6 More specifically, juvenile courts have the power in some circumstances to confine a child alleged to be delinquent in a detention facility. See Ind. Code Ann. § 31-37-6-6 (West Supp. 1998); Ind. Code Ann. 31-37-7-2 (West Supp. 1998). We are satisfied that

included within the broader power to detain in a facility lies the power to order a less restrictive form of detention at home, where parents or guardians can participate in the child's supervision.See footnote 7 Home detention furthers the policy directives of the Juvenile Code, and as the trial judge points out, it provides a convenient alternative to traditional detention for some counties and a necessary alternative for others.
    
    Judge Payne correctly characterizes W.A.'s argument as giving the court the choice only "to release the child with no conditions or restrictions or to detain the juvenile [in a state facility]." (Respondent's Br. at 5.) He describes a number of practical problems that would arise from such a strict dichotomy. First, home detention programs are commonly used by counties around the state. (Respondent's Br. at 5; App. to Respondent's Br. Exs. 3,4.) Disallowing the use of home detention would hinder those counties' juvenile justice efforts unnecessarily by putting greater pressure on facilities that are typically already overcrowded. Second, a significant number of Indiana counties do not have a juvenile detention center. (Respondent's Br. at 3.) The use of home detention programs in those counties is particularly important in providing courts with flexibility in fashioning appropriate remedies for juveniles and protecting communities.

    Both for counties that already maintain juvenile detention centers and those that do not, the alternative of home detention allows juvenile courts to effectuate more efficiently the goals of the Juvenile Code. It inherently lies within the greater power to detain a juvenile in a state facility.

    Before a court can order any form of detention, however, it must first find probable cause to believe the child is a delinquent child and that:
(1) the child is unlikely to appear for subsequent     proceedings;
(2)     detention is essential to protect the child or the     community;
(3)     the parent, guardian, or custodian:
    (A) cannot be located; or
    (B) is unable or unwilling to take custody of the     child; or
(4)     the child has a reasonable basis for requesting that     the child not be released.

Ind. Code Ann. § 31-37-6-6(a) (West Supp. 1998). W.A. points out that the court "made no findings as to why informal home detention was necessary." (Relator's Br. at 2.) W.A. is correct that the

trial court failed to find one of the conditions required by
§ 31-37-6-6(a) before imposing detention.

    The trial judge responds that "[t]here is no question that probable cause was found in this case," (Respondent's Br. at 5), and points to the affidavit for probable cause signed by a police Sergeant and the prosecuting attorney. (Id.; R. at 7.) Of course, the statute requires more than probable cause alone.

    In his Report of Preliminary Inquiry and Investigation, W.A.'s probation officer recommended "Release to [grandp]arent and Informal Home Detention." (R. at 9.) According to that report, the reason for the recommendation was simply that there was "Supervision Available." (Id.) The report further commented, "Due to the fact that the youth is not currently active with this court, it is recommended that the youth is released to his grandparents on [informal home detention], to assist in the supervision of the youth." (R. at 10.) The space provided for comments regarding the need for community safety or measures taken to ensure community safety was left blank. (See id.) The transcript of the Initial/Detention Hearing does not reveal any reasons for W.A.'s home detention given by the judge or anyone else. (See R. at 35- 43.) We cannot find any articulated reason for W.A.'s home detention in the record of proceedings. The court seemingly adopted the probation officer's recommendation without making any finding of its own. Without finding one of the conditions required

by statute, the court had no power to detain W.A. in either a detention facility or at his home.

    Indiana Code § 31-37-11-2(a) provides time limits by when a fact-finding hearing must be held after a child is placed in detention. That section states:
(a) If:
    (1)     a child is in detention; and
    (2)     a petition has been filed;
        a fact-finding hearing . . . must be commenced         not later than twenty (20) days, excluding
        Saturdays, Sundays, and legal holidays, after         the petition is filed.

Ind. Code Ann. § 31-37-11-2(a) (West Supp. 1998). Indiana Code
§ 31-37-11-2(b) provides that a hearing must be held within sixty

days for a child who has not been placed in detention. Because the court in this case scheduled W.A.'s fact-finding hearing for thirty days after the delinquency petition was filed, the question becomes whether the informal home detention qualifies as detention for purposes of § 31-37-11-2. If so, then the court was required to hold the fact-finding hearing to be held within twenty days as required by subsection (a). If not, then the court could have scheduled the hearing for anytime within sixty days, as required by subsection (b).

    As we discussed above, trial courts do possess the power to order various forms of home detention as alternatives to ordering detention in a public facility. Ordering home detention does not, however, relieve a court of a duty it would otherwise have had if detention in a facility had been ordered. We conclude that home detention still qualifies as detention to bring it within the time requirements of § 31-37-11-2. The trial court argues:
[T]he movement of the juvenile is not restricted by the court, but restricted by the guardian, in this case, the grandfather. The juvenile can go anywhere so long as the grandfather/guardian goes with him. His freedom of movement is certainly not restricted as if he were in jail as an adult or a juvenile detention facility . . . . His liberties [are] not confined as he is not placed in a governmental facility with restrictions. It is inappropriate to refer to this [Relator] as being "detained" . . . .

(Respondent's Br. at 6.) A child on home detention still faces significant restrictions, though not to the degree of one placed in a facility. Even under informal home detention, he is detained by definition. See Black's Law Dictionary 449 (6th ed. 1990)

(defining "detain" as "to check, to delay, to hinder, to hold, or keep in custody, to retard, to restrain from proceeding, to stay, to stop, to withhold"). Consequently, a juvenile placed on home detention must be given a fact-finding hearing, when one is necessary, within twenty days.See footnote 8

    In some circumstances a child, represented by counsel and with the consent of his parent or guardian, may wish to waive the twenty-day time limit on hearings for a wide variety of reasons. W.A. made no such waiver. Indeed, he moved the court to reschedule his fact-finding hearing to meet the twenty-day limit. The court wrongly denied his motion.

    The Juvenile Code sets forth consequences for failing to meet the statutory time requirements for fact-finding hearings. If a child is on detention, home or otherwise, and the court does not hold its fact-finding hearing within the twenty days required by
§ 31-37-11-2(a), and the child does not waive his right to have the hearing held within that amount of time, then "the child shall be released on the child's own recognizance or to the child's parents,

guardian, or custodian." Ind. Code Ann. § 31-37-11-7 (West Supp. 1998). Accordingly, the court here should either have granted W.A.'s motion for a hearing to be held on March 5, 1998, or set him free on his own recognizance or to his grandparents.

Selby, and Boehm, JJ., concur. Dickson, J., concurs in result.
Sullivan, J., concurs with separate opinion in which Dickson, J., concurs.

Attorney for Relator

Daniel C. Schroeder
Indianapolis, Indiana

Attorney for Amicus Curiae Marion County Public Defender Agency, Appellate Division

Katherine A. Cornelius
Indianapolis, IndianaAttorney for Respondent

James W. Payne, Judge
Indianapolis, Indiana

Attorneys for Amicus Curiae
Indiana Council of Juvenile
& Family Court Judges

James A. Masters
South Bend, Indiana

Harold E. Brueseke
South Bend, Indiana