ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
CYNTHIA L. PLOUGHE
KATHERINE A. CORNELIUS
Marion County Public Defenders Office Attorney General of Indiana
Deputy Attorney General
COURT OF APPEALS OF INDIANA
vs. ) No. 49A02-0105-JV-262
STATE OF INDIANA, )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Christopher Piazza, Judge
Cause No. 49D09-0101-JD-16
October 3, 2001
OPINION - FOR PUBLICATION
A.E.B. challenges her adjudication of delinquency for Criminal Trespass as a Class D
See footnote A.E.B. contends that the juvenile court erred when it allowed the
State to amend the charging information on the day of her hearing and
the State failed to present sufficient evidence to establish that she committed criminal
trespass. A.E.B. also contends that the juvenile court erred when it imposed
a parental participation order without a petition being filed and when it imposed
fees without conducting an indigency hearing.
We find that by failing to ask for a continuance after her objection
was overruled, A.E.B. waived the issue concerning the States amendment of the pleading.
We also find that there is sufficient evidence to show that she
committed criminal trespass. However, we find that the juvenile court did not
have proper jurisdiction to issue a parental participation order without a petition first
being filed. We also find that the court erred when it ordered
A.E.B. to pay costs. Therefore, we affirm in part, reverse in part,
and remand with instructions to hold an indigency hearing.
Facts and Procedural History
The facts most favorable to the judgment show that on October 23,
2000, A.E.B. received a suspension for five days from Indianapolis Public School (IPS)
#110, Julian Coleman Middle School, with a recommendation for expulsion. At the
time A.E.B. received this October suspension, the school did not allow her to
immediately leave the school premises. A.E.B. was 14 years old and lived
two miles from Coleman Middle School. Because there is no mid-day bus
service from the Coleman Middle School, the school does not allow a suspended
student to leave the building until the end of the school day unless
a parent is contacted to pick up the student. The school sent
a notice regarding the suspension to her father, I.V. Brown.
While A.E.B.s suspension only ran until November 1, Assistant Principal Claritha Tookes informed
A.E.B. to stay out of school until she heard from the IPSs downtown
office regarding her expulsion. When a student is recommended for expulsion, the
proper paperwork is forwarded to IPSs downtown office. The downtown office then
appoints a hearing officer within five days and the student is notified of
the hearing time. Despite Tookess instruction to stay out of the school until
receiving notice from the downtown office, A.E.B. returned to Coleman Middle School after
the conclusion of her five-day October suspension.
On November 17, 2000, A.E.B. was again suspended pending expulsion, and the school
sent another notice to Brown. According to the November Notice of Suspension
from School Attendance Pending Further Proceedings for Expulsion, A.E.B. was suspended from attendance
at Coleman Middle School for 5 school days beginning on Tuesday, November 17,
2000, through and including Monday, November 27. [P]ending expulsion. Exhibits P.1.
On November 28, Brown sent A.E.B. back to school.
Once at school, A.E.B. went to several classrooms and verbally insulted the teachers.
Police Officer Averitte Sheroan, who was assigned to Coleman Middle School, confronted
A.E.B., told her that she was not supposed to be in the school
building, and escorted her to the schools office to determine if she was
actually on suspension. A.E.B. became loud and refused to be quiet after
Officer Sheroan asked her to stop. After conferring with the principal, Officer
Sheroan told A.E.B. to leave the school building or she would be arrested
for trespassing and disorderly conduct. A.E.B. refused to leave unless she was
able to talk to her nephew who also attended the school. Officer
Sheroan then arrested her and placed her in handcuffs. It was only
after she was arrested that A.E.B. asked to call her father.
On January 3, 2001, the State filed a petition alleging that A.E.B. was
a delinquent child for committing the acts of Criminal Trespass as a Class
D felony if committed by an adult and Disorderly Conduct as a Class
B misdemeanor if committed by an adult.See footnote The court held the fact-finding
hearing on March 16, 2001. On the day of the hearing, the
State amended the petition over A.E.B.s objection to include Criminal Trespass that results
from refusing to leave after being told to do so. Tr. P.1-2.
The court found A.E.B. to be a delinquent child for having committed
both offenses. On April 16, 2001, the court issued a suspended commitment
to the Department of Corrections, ordered A.E.B. to complete 40 hours of community
service, ordered her to pay probation fees and a $50 public defender fee,
and waived docket fees if A.E.B. received Cs or above on her next
report card. The court also issued a parental participation order for Brown.
This appeal then ensued.
Discussion and Decision
On appeal, A.E.B. raises four arguments. First, she argues that the juvenile
court erred by allowing the State to amend the charging information on the
day of her hearing. Next, she claims that State failed to present
sufficient evidence to establish that she committed criminal trespass. A.E.B. also asserts
that the juvenile court erred when it imposed a parental participation order without
a petition being filed. Finally, A.E.B. argues that the court erred when
it ordered her to pay costs without holding an indigency hearing. We
address each argument in turn.
I. Amending the Charging Information on the Day of Trial
First, A.E.B. claims that the court erred by allowing the State to amend
the delinquency petition on the day of hearing. The original language on
the petition alleged that A.E.B. committed Criminal Trespass as a Class D felony
when she not having a contractual interest in the property did knowingly or
intentionally enter the real property of IPS School #110 . . . after
having been denied entry by school administrators. Appellants App. P.10. On
the day of A.E.B.s hearing, the State amended, over A.E.B.s objection, the petition
to include criminal trespass that results from refusing to leave after being
told to do so. Appellants App. P.10. A.E.B. alleges that this
was a substantive amendment that changed the defenses that may have been available
We find that A.E.B. has waived this issue for appeal. While A.E.B.
objected to the amendment at the time the State proposed it, she did
not ask for a continuance after the amendment was granted. Once a
defendants objection has been overruled, she should request a continuance. Haymaker v.
State, 667 N.E.2d 1113, 1114 (Ind. 1996). Failure to request a continuance
after objecting to an amendment to the charges, results in waiver of that
issue for appeal. Id. A.E.B. had the opportunity to request a
continuance after she objected to the amendment and chose not to pursue that
course. Therefore, A.E.B. has waived this issue for appeal.
II. Sufficiency of the Evidence
A.E.B. challenges the sufficiency of the evidence supporting her adjudication of delinquency for
an act which, had it been committed by an adult, would have constituted
Criminal Trespass as a Class D felony. Specifically, A.E.B. alleges there was
insufficient evidence to prove that she did not have a contractual interest in
the property because she was a student at the school. A.E.B. also
alleges that she lacked the requisite criminal intent because she was unable to
leave the school after she was asked to leave the school property.
When the State seeks to have a juvenile adjudicated to be delinquent for
committing an act that would be a crime if committed by an adult,
the State must prove every element of that crime beyond a reasonable doubt.
Al-Saud v. State, 658 N.E.2d 907, 908 (Ind. 1995). Upon review,
we apply the same sufficiency standard used in criminal cases. Id. at
909. When reviewing the sufficiency of the evidence, we do not reweigh
the evidence or judge the credibility of witnesses. D.R. v. State, 729
N.E.2d 597, 599 (Ind. Ct. App. 2000). Instead we look only to
the evidence of probative value and the reasonable inferences that support the determination.
A person commits Criminal Trespass when (1) not having a contractual interest in
the property, (2) she knowingly and intentionally refuses to leave the real property
of another person, (3) after having been asked to leave by the other
person or that persons agent. Ind.Code § 35-43-2-2(a)(2); Woods v. State, 703
N.E.2d 1115, 1117 (Ind. Ct. App. 1998). The offense is a Class
D felony if it is committed on school property. I.C. § 35-43-2-2(a).
A.E.B. insists that she could not have committed criminal trespass because as a
student at Coleman Middle School she had a contractual interest in the property.
We have held that a contractual interest as it is used in
the criminal trespass statute, refers to the right to be present on anothers
property, arising out of an agreement between at least two parties that creates
an obligation to do or not to do a particular thing. See
Woods, 703 N.E.2d at 1117. A.E.B. maintains that the education clause found
in Article 8, Section 1 of the Indiana Constitution,
See footnote coupled with Indianas compulsory
school attendance lawSee footnote provides her with a contractual interest in the school property.
Even assuming that A.E.B.s claim is correct, we find that A.E.B.
violated whatever contract existed when she interfered with the educational activities at Coleman
Middle School to the point where she committed the crime of disorderly conduct.
According to Officer Sheroans testimony, before A.E.B. was asked to leave the school
building, she was going from classroom to classroom, disrupting the classes, cursing the
teachers, and making a loud noise after she was told to stop.
The State, no less than a private owner of property, has power to
preserve the property under its control for the use to which it is
lawfully dedicated. Grody v. State, 257 Ind. 651, 657, 278 N.E.2d 280,
284 (1972) (quoting Adderly v. Florida, 385 U.S. 39, 47 (1966)). The
administration of Coleman Middle School had the power to request that A.E.B. leave
the school property after she began to interfere with the educational activities to
such an extent as to be guilty of the crime of disorderly conduct.
A.E.B. did not have a contractual interest to remain on school property
in order to disrupt the educational environment and to break the law.
By committing the crime of disorderly conduct on school property, A.E.B. abandoned whatever
contractual interest she had in the school property. Thus, we find that
there was sufficient evidence to show that A.E.B. did not have a contractual
interest in the school property when she was asked to leave the premises.
A.E.B. also alleges that she lacked the requisite intent to commit criminal trespass.
A.E.B. contends that she refused to leave the school property because she
was 14 years old, lived two miles from school, and was unable to
leave the school unless she waited until the bus took her home at
the end of the day or her father came to the school to
get her. A.E.B.s claim is that she believed she had a right
to be on the property because she thought that she was physically unable
to leave the school premises after she was told to do so.
The belief that one has a right to be on the property of
another will defeat the mens rea requirement of the criminal trespass statute if
it has a fair and reasonable foundation. Olsen v. State, 663
N.E.2d 1194, 1196 (Ind. Ct. App. 1996). It is for the
trier of fact to determine whether the defendant believed that she had a
right to be on the property of another and whether that belief had
a fair and reasonable foundation. Myers v. State, 190 Ind. 269,
269, 130 N.E. 116, 117 (1921). A.E.B.s argument is essentially a
request for us to reweigh the evidence to conclude that her belief that
she could stay on the school property had a fair and reasonable foundation,
this we cannot do.
The State presented sufficient evidence to show that A.E.B.s refusal to leave the
property was not based on a belief that she was incapable of leaving
the school. According to Officer Sheroans testimony, after he told A.E.B. repeatedly
that she must leave the school property, A.E.B. responded that she would not
leave until she talked to her younger nephew who was a fellow student
at the school. Officer Sheroan later testified that A.E.B. did not even
ask to call her father until after she was arrested for disorderly conduct
and refusing to leave school property. There were sufficient facts presented from
which the court could find that A.E.Bs refusal to leave was based on
her intent to talk to her nephew, not out of a fear or
inability to travel back to her home. A.E.B.s desire to talk with
her nephew did not provide a fair and reasonable foundation for her belief
that she had a right to be on school property after she was
asked repeatedly to leave. Therefore, we conclude that there was sufficient evidence
supporting A.E.B.s adjudication of delinquency for an act that would have constituted criminal
trespass had it been committed by an adult.
III. Parental Participation Order
Next, A.E.B. asserts that the trial court erred when it imposed a parental
participation order against I.V. Brown as part of the disposition of A.E.B.s delinquency
case without a petition for such an order first being filed. Before
we address the merits of A.E.B.s claim, we must determine whether A.E.B. has
standing to attack the parental participation order issued against her father.
In addressing whether a child has standing to challenge a parental participation order
issued against her father, we look to the nature of the order.
Through a parental participation order issued as part of a delinquency disposition, the
court may order a parent, custodian or guardian to:
(1) obtain assistance in fulfilling the obligations as a parent, guardian, or custodian;
(2) provide specified care, treatment, or supervision for the child; (3) work with
a person providing care, treatment, or rehabilitation for the child; and (4) participate
in a program operated by or through the department of correction.
Ind.Code § 31-37-19-24. Therefore, a parental participation order establishes certain parental duties
and directs parental choice and control in the rearing of the child.
By issuing a parental participation order, a juvenile court impacts the rights of
the parent in establishing the nature of the parent-child relationship. We have
previously stated that when:
focusing upon the tenor of the provisions relating to juveniles, the rights accorded
parents and child are viewed as coextensive. Parents and child are treated
as one. With the exception of petitions alleging the children to be
in need of services often including allegations of some neglect by the parents,
the childs and parents interests are the same.
L.B. v. State, 675 N.E.2d 1104, 1107 (Ind. Ct. App. 1996) (allowing a
child to assert his parents right to be present at his hearing).
Because a parental participation order can direct the parent-child relationship and affect their
mutual interests, it follows that a child can challenge a parental participation order.
See id. at 1108-09. Thus, we find that A.E.B. has standing
to contest the parental participation order issued against her father.
Turning now to the merits of A.E.B.s claim, A.E.B. asserts that the juvenile
court did not have proper authority to issue a parent participation order as
part of the disposition of A.E.B.s delinquency case. Specifically, A.E.B. contends, and
the State concurs, that a petition for parental participation must be filed before
a juvenile court can issue the participation order as part of a delinquency
disposition. We agree.
In Mikel v. Elkhart County Department of Public Welfare, 622 N.E.2d 225 (Ind.
Ct. App 1993), we concluded that the language of I.C. 31-6-4-17 mandates certain
procedures be followed before the juvenile court can affirmatively order the participation of
a parent in a dispositional decree. 622 N.E.2d at 229.
The procedures contained in Indiana Code § 31-6-4-17 for parental participation orders
as part of a delinquency disposition were later separated from the procedures for
parental participation orders issued as part of child in need of services (CHINS)
and recodified at Indiana Code ch. 31-37-15.
See footnote However, the substance of
former Indiana Code § 31-6-4-17 was not changed in the recodification, and our
interpretation of the procedures to be followed before a juvenile court can issue
a parental participation order as part of a delinquency disposition also remains the
same. See footnote
Indiana Code § 31-37-15-1 provides that a petition for the juvenile court to
require the participation of a parent, guardian, or custodian in a program of
care, treatment, or rehabilitation for the child can be filed by the:
(1) prosecuting attorney, (2) the attorney for the county office of family and
children, (3) a probation officer, (4) a caseworker, (5) the department of correction,
(6) and the guardian ad litem or court appointed special advocate. Ind.Code
§ 31-37-15-1. This petition must be verified. Ind.Code § 31-37-15-2.
Indiana Code § 31-37-15-3 also dictates the form and substance of the petition:
A petition seeking participation of a parent, guardian, or
custodian must be entitled In the Matter of the Participation of ________ the
Parent, Guardian, or Custodian of ________. The petition must allege the following:
(1) That the respondent is the childs parent, guardian, or custodian.
(2) That the child has been adjudicated a delinquent child.
(3) That the parent, guardian, or custodian should:
(A) obtain assistance in fulfilling obligations as a parent, guardian, or custodian;
(B) provide specified care, treatment, or supervision for the child;
(C) work with a person providing care, treatment, or rehabilitation for the child;
(D) refrain from direct or indirect contact with the child.
Ind.Code § 31-37-15-3.
After the verified petition for parental participation is filed, the juvenile court conducts
a hearing on the petition. Indiana Code § 31-37-15-4 provides:
(a) The court may hold a hearing on a petition concurrently with any
dispositional hearing or with any hearing to modify a dispositional decree.
(b) If the order concerns participation of a parent, the juvenile court shall
advise the parent that failure to participate as required by an order issued
under IC 31-37-19-24 (or IC 31-6-4-15.8 before its repeal) can lead to the
termination of the parent-child relationship under IC 31-35.
(c) If the court finds that the allegations under section 3 of this
chapter are true, the court shall enter a decree.
Ind.Code § 31-37-15-3.
Mikel, we ruled that all of these procedures must be followed
before a juvenile court may mandate parental involvement subject to contempt of court.
622 N.E.2d at 228. Without the filing of a proper verified parental
participation petition, a juvenile court does not have jurisdictional authority over a parent
and may not order parental action. Id. at 229. The recodification
of this process does not change our previous decision. Therefore, we conclude
that all of the procedures contained in Indiana Code ch. 31-37-15 must be
followed before a juvenile court can issue a parental participation order as part
of a delinquency disposition. Thus, we reverse the parental participation order.
IV. Indigency Hearing
A.E.B. argues and the State concedes that the trial court erred when it
ordered her to pay probation fees and a $50 public defender fee without
conducting an indigency hearing. When a court imposes costs, it shall conduct
a hearing to determine if the defendant is indigent. Ind.Code § 33-19-2-3;
Vestal v. State, 745 N.E.2d 249, 253 (Ind. Ct. App. 2001). The
trial court has an affirmative duty to conduct an indigency hearing when imposing
costs on a criminal defendant. Everroad v. State, 730 N.E.2d 222, 227
(Ind. Ct. App. 2000). While the trial courts appointment of defense and
appellate counsel for A.E.B. implied a finding of indigency, the appointment of counsel
was not conclusive as to her inability to pay costs. Vestal, 745
N.E.2d at 253. Therefore, because the court ordered A.E.B. to pay costs
without an indigency hearing, the proper remedy is to remand with instructions to
hold such a hearing. Id. Thus, we remand for a
hearing to address whether A.E.B. has the ability to pay the costs of
her public defender and her probation.
Affirmed in part and reversed in part and remanded with instructions to hold
an indigency hearing.
DARDEN, J., and MATHIAS, J., concur.
Ind.Code § 35-43-2-2.
Ind.Code § 35-45-1-3.
Article 8, Section 1 of the Indiana
Constitution states in pertinent part that the General Assembly will provide, by law,
for a general and uniform system of Common School, wherein tuition shall be
without charge, and equally open to all.
Ind.Code § 20-8.1-3-17
The procedures for parental participation orders
issued as part of child in need of services (CHINS) cases originally contained
in former Indiana Code § 31-6-4-17 were recodified at Indiana Code ch. 31-34-16.
See P.L. 1-1997 §§ 17, 157. The necessary procedures for a
parental participation order issued as part of a CHINS case are identical to
those found in the process for issuing a parental participation order as part
of a delinquency disposition.
While Indiana Code ch. 31-37-15 divided former
Indiana Code § 31-6-4-17 into four separate sections, there were no substantive changes
that would affect our discussion concerning the process for issuing a parental participation
order issued as part of a delinquency disposition. See P.L. 1-1997 §§