A TTORNEYS FOR A PPELLANT A TTORNEY FOR A PPELLEE

Gregory F. Zoeller Donald R. Shuler Attorney General of Indiana Goshen, Indiana Brian Reitz Deputy Attorney General Indianapolis, Indiana

____________________________________________________________________ _________

_________ 

# In the 

# Indiana Supreme Court

_________________________________ No. 20S03

- 1309

- JV

- 583 S TATE OF I NDIANA , Appellant ( Petitioner ) , V . I.T. , Appellee ( Respondent ).

_________________________________ Appeal from the Elkhart Circuit C ourt, Juvenile Division, No. 20C01

- 1111

- JD

- 519

The Honorable Terry C. Shewmaker, Judge The Honorable Deborah Domine, Juvenile Magistrate

_________________________________ On Petition to Transfer from the Indiana Court of Appeals, No. 20A03

- 1202

- JV

- 76 Marc h 1 2 , 2014 Rush, Justice. More than half of children entering the Indiana juvenile justice system have mental health or substance abuse problems. In response, Indiana has established a pilot project to screen and treat juveniles suffering from these issues . To facilitate participation in the project, the Legis lature en acted the Juvenile Mental Health Statute , bar ring a child’s statement to a mental health evaluator from being admitted into evidence to prove delinquency. We construe that statute to confer both use immunity and derivative use immunity, in order to avoid a likely violation of the constitutional privileges against self

- incrimination under the Fifth Amendment and Article 1, Section 14 of the Indiana Constitution

. We therefore affirm the trial court.2 Facts and Procedural History I.T. admitted to conduct that would be Class B felony child molesting if committed by an adult. As a condition of his probation, the trial court ordered him to undergo treatment for juveniles with sexual behavior proble ms, including polygraph examinations. During one of those exams, I.T. admitted to molesting two other children. As a result, the trial court moved I.T. from his home to juvenile detention, then to residential treatment in the START (Sexually Traumatized Ad olescents in Residential Treatment) program. In addition, the Department of Child Services and the police investigated the admissions, and the police then interviewed one of the victims and I.T. The State filed a new delinquency petition based on I.T.’s s tatements to his therapist. The juvenile court initially approved the new delinquency petition, but I.T. moved to dis

miss it, arguing that the Juvenile Mental Health Statute, Ind. Code § 31

- 32

- 2

- 2.5(b) (2008), barred the State’s evidence. The trial court granted the motion, finding that the Statute prohibited using I.T.’s statements to the evaluator or evidence derived from those statements: “Removing the con

sideration of the prohibited evidence, the Court can find no other evidence whatsoever to sup por t a finding of probable ca u se, . . . nor can the Court find that it is in the best interest of the child or the public that the petition in this case be filed.” The court gave the State ten days to refile based on independently gathered evidence, but the S tate appealed instead. The Court of Appeals concluded “ sua sponte that the State is without authority to appeal a juvenile court’s order withdrawing its approval of the filing of a delinquency petition.” State v. I.T. , 986 N.E.2d 280, 281 (Ind. Ct. App. 20 13), trans. granted , 993 N.E.2d 625 (Ind. 2013). We granted transfer to address two issues. Ind. Appellate Rule 58(A). First, we address whether the State could appeal the trial court’s decision and conclude it could because the trial court essentially sup pressed evidence ending the proceeding. Second, we reconcile the limited immunity in part (b) of the Juve

nile Mental Health Statute with the constitutional privilege against self

- incrimination, and construe the Statute to conform to that privilege

. Here, because I.T.’s statements during a court

- ordered therapeutic poly graph were impermissibly used against him, we affirm the trial court. Standard of Review The State’s right to appeal the trial court’s order and the scope of I.T.’s immunity under the Juven ile Mental Health Statute are both issues of law. We therefore review them de novo

. Branham v. Varble , 952 N.E.2d 744, 746 (Ind. 2011).3 Discussion and Decision I. State’s Authority to Appeal . The Court of Appeals determined that the State lacked the statutor y authority to appeal because the State may appeal criminal matters only when authorized by statute. State v. Brunner , 947 N.E.2d 411, 415 (Ind. 2011). 1 The State argues it may appeal the order because the trial court labeled its order a “Memorandum and Or der on Motion to Dismiss,” and Indiana Code section 35

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- 2(1) (2008) provides that the State may appeal “an order granting a motion to dismiss an indictment or information.” But in juvenile proceedings, the State files a delinquency petition, not an ind ictment or an information. I.C. § 31

- 37

- 10

- 1 (2008). That difference is sig

nificant because unlike an indictment or information, filing a delinquency petition requires the trial court’s appro val

— a discretionary finding of “probable cause to believe that: (A) the child is a delinquent child ; and (B) it is in the best interests of the child or the public that the petition be filed.” I.C. § 31

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- 10

- 2(2) (2008). By contrast, “lack of probable cause is not grounds for dismissing a charging information” agains t an adult offender , Flowers v. State , 738 N.E.2d 1051 , 1055 (Ind. 2000 ) , let alone on any “best interests” grounds

. We therefore agree with the Court of Appeals that a juvenile court’s discre tionary decision to disapprove a delin quency petition is not
w ithin any of the statutory grounds for the State to appeal. I.C. § 35

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- 4

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. But unlike the Court of Appeals, we do not find that principle dispositive here. The Court of Appeals looked beyond the order’s title and found that in substance, the order did not dismiss an indictment but rather “unapproved” the initial filing of the delinquency petition. I.T. , 986 N.E.2d at 286. Reading the order as a whole, though, we think the order is better characterized as sup pressing evidence . The trial court did ultima tely “rescind[] the previously granted Order Approving Filing of the Delinquency Petition” for lack of probable cause, echoing Indiana Code section 31

- 37

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- 2(2)

— but that conclusion rests on finding I.T.’s statements to be “prohibited evidence” under the J uvenile Mental Health Statute, and thus exclud ed from the trial court’s probable

- cause and best

- interests

1 While juvenile delinquency proceedings are not criminal in natur e, criminal rules apply in ju ve nile matters unless the juvenile code states otherwise. I.C. § 31

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- 1

- 1 (2008). Here, the juvenile code provides that parties in juvenile matters may appeal as provided by law. I.C. § 31

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- 1 (2008). Therefore, the Stat e needs statutory authority to appeal juvenile delinquency pro ceed ings, just as it does for criminal matters. See State v. C.D. , 947 N.E.2d 1018, 1021 (Ind. Ct. App. 2011).4

analysis. At bottom, then, the trial court’s order suppresses evidence and its “ultimate effect .

. . is to preclude further prosecution ,” I.C. § 35

- 3 8

- 4

- 2(5)

— an enumerated basis for the State to appeal, even in juvenile matters, see C.D. , 947 N.E.2d at 1021. Therefore, we conclude the State had statutory authority to appeal the trial court’s order , and we proceed to the merits of its appeal.
II. The Juve nile Mental Health Statute Must Provide Both Use and Derivative Use Immu nity to Pass Constitutional Scrutiny. The State argues that the Juvenile Mental Health Statute prevents it from intro ducing I.T.’s actual statements to prove delinquency at trial, b ut not from using his statements to develop other evidence

— in other words, that the Stat ut e provides “use immunity” but not “deriva tive use immu nity.” See In re Caito , 459 N.E.2d 1179, 1183 (Ind. 1984) (citing Kastigar v. United States , 406 U.S. 441 (197 2)). But the trial court concluded that the Statute gives I.T. a limited immu nity against both use and derivative use of his statements , reasoning that because the con sti tutional pri

vi lege against self

- incrimination confers both forms of immunity, the Statute cannot be construed to provide any less protection . The State makes a compelling argument that the Statute’s language confers only use immunity

— but to avoid a likely violation of the constitutional privilege against self

- incrimination , we construe it to confer derivative use immunity as well. A. The Statute’s terms clearly confer use immunity, but do not necessarily extend to derivative use immunity

. We begin with the language of the Statute to determine the scope of its protections

. “Our primary goa l in interpreting any statute is to effectuate legislative intent.” N.L. v. State , 989 N.E.2d 773, 777 (Ind. 2013). An unambiguous statute needs no interpretation, and courts must “giv[e] effect to the plain and ordinary meaning of the language.” Sloan v. State , 947 N.E.2d 917, 922 (Ind. 2011). But on the other hand, “when the validity of a statute is drawn in question, and even if a serious doubt of constitutionality is raised , it is a cardinal principle that the Supreme Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.” Indiana Wholesale Wine & Liquor Co. v. State ex rel. Indiana Alcoholic Bev erage Comm’n , 695 N.E.2d 99, 106 ( Ind. 1998) (emphasis added ) ( substitutions omitted) (quoting Ashwander v. Tennessee Valley Auth. , 297 U.S. 288, 348 (1936) (Brandeis, J., concurring)). Adopting such a saving con struction respects the “strong pre sumption of constitutionality” of statutes that come before us for review. See Girl Scouts of So. Ill. v. Vincennes Ind. Girls, Inc. , 988 N.E.2d 250, 255 (Ind. 2013).5

The Juvenile Mental Health Statute, which applies only in juvenile proceedings, generally prohibits the State from using a child’s statements to an evaluator 2 as evidence against the child o n the issue of delinquency , subject to several exceptions : (b) Except as provided in subsection (d) and except for purposes of: (1) a probation revocation proceeding; or (2) a modification of a dispositional decree under IC 31

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- 22; a statement communica ted to an evaluator in the evaluator’s official capacity may not be admitted as evidence against the child on the issue of whether the child com

mit ted a delinquent act or a crime. (c) This section does not affect the admissibility of evidence when a juve nile inter

poses the defense of insanity. (d) This section does not affect a disclosure or reporting requirement .

. . under statute or in case law regarding a statement that: (1) relates directly to the facts or immediate circumstances of a homicide; or ( 2) reveals that the child may intend to commit a crime. I.C. § 31

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- 2

- 2.5(b)

– (d). Those terms do not block the State from using a juvenile’s statements in treatment to prove issues other than delinquency. T.W. v. State , 953 N.E.2d 1120, 1124

– 25 (Ind. Ct. App. 2011) (using juve nile’s statements to require juvenile to register as a sex offender). And they expressly permit use of the statements, even to prove delinquency, for purposes of revoking pro ba

tion, modifying a dispo si tional decree, and counter ing an insanity defense. I.C. § 31

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- 2.5(b)

– (c). Further, the statute refers only to a juvenile’s “statement,” unlike the criminal code’s use immu

nity statute, which expressly extends also to use of “evidence derived from” a witness’s testimony

. I.C. § 35

- 34

- 2

- 8 (a) (20 08 ). Though the statutory language clearly grants use immunity , it is far less clear whether it s protection also extends to deri vative use of the statement to prompt further investi

ga tion to develop similar evidence from other sources. B. Construing a statute to provide both use and derivative use immunity is a safe harbor against violating the constitutional pri vi lege against self

- incrimination. But failing to provide derivative use immunity would raise a serious doubt about the Statute’ s constitutionality. Use immunity, standing alone, “cannot protect an indi vi dual’s right not

2 Indiana Code section 31

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- 43.8 (2008) defines an evaluator as “ a person res ponsible for pro

viding mental health screening, evaluation, or treatment to a child in connection with a juvenile proceeding or probation proceeding under this title.”6

to give evidence against himself because the com pelled testimony may still be employed by investigators who have thereby gained a knowledge of the details of th e crime and other sources of incriminating evidence .” Caito , 459 N.E.2d at 1183

. To protect effectively against compelled self

incri mi nation, then, an immunity statute must grant both use and derivative use immunity. See Kastigar , 406 U.S. at 453; Brown v. State , 725 N.E.2d 823, 826 (Ind. 2000); Caito , 459 N.E.2d at 1183; Wilson v. State , 988 N.E.2d 1211, 1219

– 20 (Ind. Ct. App. 2013). A statute that compels a statement against oneself, but without providing both forms of immunity, is therefore invalid. Ka stigar , 406 U.S. at 453 ; see also Counselman v. Hitchcock , 142 U.S. 547, 564

– 65 (1892) (testimony could not be compelled under a statute that did not “prevent the use of [the witness’s] testimony to search out other testimony to be used in evidence against him”

— that is, derivative use
— because it failed to extend the same protection as the constitutional privilege ). Yet using I.T.’s testimony “to search out other testimony to be used in evidence against him” is precisely what the State did here. The court or dered I.T. into treatment as a con di tion of probation

— so remaining silent during therapy could well have been viewed as violating his pro

bation by refusing to participate. Then, during a therapeutic polygraph administered as part of t hat compulsory trea tment, I.T. disclosed two other incidents of child molestation; I.T.’s therapist informed DCS of the new victims; and the State filed a delinquency petition based on I.T.’s admission to his therapist and evidence derived from those admissions. Indeed, the State concedes that but for I.T.’s admis sions, it would not have filed the delin quency petition

— that is, it had no

“ independent, legitimate source for the disputed evidence” beyond the state ment itself, as would be necessary to avoid a self

- incriminatio n violation. Cf. Kastigar , 406 U.S. at 460 (internal quotation marks omitted) (quoting Murphy v. Waterfront Comm’n of New York Harbor , 378 U.S. 52, 79 n.18 (1964) )

. Accordingly, the circumstances of this case necessarily implicate a substantial question ab out the constitutional protections against self

- incrimination

. Nevertheless, we need not directly answer that constitutional question , because “a con

struc tion of the statute is fairly possible by which the question may be avoided.” Indiana Wholesale , 695 N.E.2d at 106 (quoting Ashwander , 297 U.S. at 348 (Brandeis, J., concurring)). We may not “effec tively rewrit[e] a statute to save it from constitutional infirmity”

— but we will generally adopt a saving construc tion as long as there is a reasonable inter pre ta tion that avoids the consti tu
tional problem. Id. at 108 n.21 (citing Boehm v. Town of St. John , 675 N.E.2d 318, 321 (Ind. 1996 ) and Grody v. State , 257 Ind. 651, 659

– 60, 278 N.E.2d 280, 285 (1972)). Moreover, “the purpose of7

our juvenile code [is ] to ‘ensure that children within the juvenile justice system are treated as per

sons in need of care, protection, treatment, and rehabilitation, ’ ” and it “must be liberally construed to that end.” In re K.G. , 808 N.E.2d 631, 637 (Ind. 2004) (quoting I.C. § 31

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- 1(5)). And as set forth below, we believe that adopting a liberal “saving construction” of part (b) of the Statute is consistent with its history and purpose. C. Derivative use immunity is consistent with the Statute’s history and purpose , as well a s the purposes of the juvenile code in general

. The juvenile code’s focus on individualized diagnosis and treatment makes it “vastly dif

ferent” than the adult criminal code. J.C.C. v. State , 897 N.E.2d 931, 935 (Ind. 2008). “This policy is grounded in the Progressive Movement of the 19th and 20th cen tu ries when American society rejected treating juvenile law violators and adult criminals the same, favoring individualized diagnosis and treat ment for juveniles.” Id. And the Juvenile Mental Health Statute ’s history shows that same focus. Until recently, the aim of diagnosis and treatment was hindered by a failure to screen child

ren for mental health dis orders. 3 This lack of diag nosis was par ticularly troubling because “well over 50 percent” of youth d etained in Indiana “have mental health and/or substance abuse problems.” Indiana State Bar Ass’n, supra note 3

. And even apart from the humane reasons for treating juve

nile offenders, failing to treat them is costly: “Placing children with unmet mental he alth needs in the juvenile justice sys tem and failing to provide them appropriate treat ment causes long

- term societal costs, including increased life

- long health care costs, increased reliance on public welfare support, and greater costs for the overburd ened juvenile and criminal justice systems.” Id. To address that problem, over 250 “lawyers, legislators, government officials, judges, doctors, mental health professionals and educators” gathered in 2004 for the Children, Mental Health and the Law Summit . JauNae M. Hanger, Screening, Assessment and Treatment: Indiana Addresses Mental Health in Juvenile Detention Centers , Corrections Today, Feb. 2008, at 37. In relevant part, two recommendations emerged from the Summit. First, Indiana needed “[a]

3 The Indiana State Bar Association, Children, Mental Health and the Law Summit: Offic ial Report on Summit Findings with Recommendations 2 (2005), avail able at http://www. inbar. org / Portals/ 0/ downloads/ legal %20news/ 1

- %20 reference %20 materials / D10 %20

- %20Mental %20 Health %20 Summit

- %20 Final %20 Report.pdf

.8

standardi zed, integrated, statewide program for screening, assessment and treatment of all youth” for mental health issues because “research

- based treatment programs can reduce recidivism and future involvement in the juvenile justice system by 25 to 80 percent.” I ndiana State Bar Ass ’n , supra note 3 , at 3

–

4. Second, “[a]ny program of screening, assessment and treatment of youth entering the juvenile justice system must include protections so that the information is not used to prove their guilt,” id. at 4

– 5

— because “[w]ithout open and honest communications between” treat ment providers and patients, “the rehabilitative process will fail.” Daymude v. State , 540 N.E.2d 1263, 1267 (Ind. Ct. App. 1989), trans. denied . In addition, the Indiana Juvenile Mental Health Scre ening, Assessment and Treatment Project (“the Project”) grew from the Summit, and it imple mented routine screening and treatment of mental health disorders in numerous counties, including Elkhart County , where this case originated. Matthew C. Aalsma & the Indiana Juvenile Mental Health Screening, Assessment & Treatment Project, 2011 Report and Recom men dations 1, 4 (2011), available at http://www.inbar.org/Portals/0/ downloads / legal %20 news / 2011

- Report

Recommendations.pdf. But the viability of t hose efforts depended on addressing the self

- incrimination issue. To that end, members of the Project and the Indiana State Bar Association advocated for a law “that prevents the use of information obtained through screening, assessment or treatment in the juvenile justice system from being used for purposes of guilt in adjudicati on proceedings.” Hanger, supra , at 38. And in response, the Legislature passed the Juvenile Mental Health Statute, which took effect on July 1, 2007. I.C. § 31

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- 2.5, Act of May 2, 2007, P.L. 120

- 2007, § § 3

– 4 , 2007 Ind. Acts 1839

– 40. 4 Without the Statute’s protections, the “potential for self

- incrimination” would have a “deleterious effect, namely the deterrence of youth from consenting to” screening or treatment. Aalsma, supra , at 2. The Statute therefore aimed to protect against self

- incrimination “so that [sys

tematic] screening contemplated by the Indiana Project could in fact occur.” Id. We therefore feel confident that the Legislature did not intend to permit such derivativ e use of juveniles’ statements in therapy. Indiana Code section 31

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- 1 (2008) required I.T.’s therapist to report his disclosures to DCS, and Indiana code section 31

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- 1(a) (2008) required DCS to

4 This bill was c odified at Indiana Code section 31

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- 4.5 a nd Indiana Code section 31

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- 2.5. The two sections contain virtually identical language , but the former protects a juvenile during an investigation or preliminary inquiry, while the latter ( the one that ap pli es in this case ) protects a juvenile subject to a juvenile court’s jurisdiction. Our interpretation applies equally to both statutes

.9

investigate the report

— both of which are consistent wi th the juvenile code’s goals. And so are the Statute’s exceptions permitting the statements to be used for revoking probation , modif ying the dispositional decree , or other matters besides delinquency

. I.C. § 31

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- 2.5(b)

– (c)

. Because p ro bation “is a mat ter of grace and a conditional liberty that is a favor, not a right, ” Cox v. State , 706 N.E.2d 547, 549 (Ind. 1999) ( internal quotation marks omitted) , “probationers do not receive the
same con sti tu tional rights that defendants receive at trial,” and co urts have discretion to establish conditions for probation. Reyes v. State , 868 N.E.2d 438, 440 (Ind. 2007). Similarly, modifying disposition merely adjusts the rehabilitative services ordered in connection with a delinquency determinat ion that has already been made. In either case, the juvenile’s statement is used only to better tailor ser vices to their particular needs, and thus to promote their rehabilitation. Each of those uses is for an issue other than determining delinquency, just as the statute exp ressly provides. By contrast, using the evidence derived from I.T.’s state ments against him to prove his delin quency is still in effect using the statement for the prohibited purpose of determining “whether the child committed a delinquent act or crime.” I.C. § 31

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- 2.5(b). Moreover, it would de feat the larger purpose of the S tatute. Failing to prohibit derivative use would mean that I.T. and other juvenile offenders would be discouraged from par ti ci pa ting openly in treatment to reduce their likeli hood of reoffending. Also, by partici pa ting in treat ment, the juvenile may reveal previously unknown victims, and the reporting requirements enable the victims to receive treatment as well. Without derivative use immunity, then, juvenile offenders would be deterred from participat ing in treatment

— increas ing recidivism w hile decreasing identi fi ca tion and treatment of victims. We find it highly unlikely that the Legislature meant to create such a backwards incentive , which would not only disserve the St atute’s purpose, but raise a significant question of its con sti tu tion

ality. We will therefore construe the Statute to provide both use and derivative use immunity as a safe harbor against jeopardizing its constitutionality

. III. A Juvenile’s Compelled State ments May Not Be Used Against Him

— Even in a Probable Cause Affidavit. Because the Statute must be construed to provide use and derivative use immunity, the trial court reached the correct result

. As discussed in Part I, when the State files a delinquency petition, the trial court must determine whether it is in the child’s best interests before the case may proceed

— unlike criminal charging informations or indictments, which require no such threshold inquiry. Thus, facts recited in the probable cause affida vit are necessarily “admitted as evidence10

against the child on the issue of whether the child committed a delinquent act or crime,” as part of the trial court’s best

- interests determination. But here, the majority of the evidence in the probable

cause affi davit was precisely what even a narrow view of the Statute forbids

— I.T.’s statements during court

- ordered therapy. And the State concedes that the remainder of the allegations are entirely derived from those statements. In each respect, I.T.’s statements m ade during court

compelled therapy were improperly used against him. Our conclusion that the probable cause affidavit violates the Juvenile Mental Health Statute does not leave the State without recourse, nor does it relieve a juvenile from consequences ba sed on disclosures during court

- ordered treatment. The Statute provides that the State may use a juvenile’s statements in treatment to revoke or modify probation. I.C. § 31

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- 2.5(b). Moreover, the juvenile’s statements may be used for purposes other tha n proving delinquency, such as at a CHINS hearing, at an expungement hearing, or at a Sex

- Offender Registry hearing. See T.W. , 953 N.E.2d at 112 4

– 2 5 (finding that a juvenile’s statements in treatment could be used for other purposes, such as requiring a ju venile to register as a sex offender). And the Juvenile Mental Health Statute does not prevent the State from introducing evidence of a juvenile’s delinquency , if it can “affirmative[ly] .

. . prove that the evidence it proposes to use is derived from a le gitimate source wholly independent of the compelled testimony.” Kastigar , 406 U.S. at 460

. Here, I.T. was removed from his home and placed first in detention , then a residential treatment facility. Further, the trial court gave the State an opportunity to introduce evidence not derived from I.T.’s statements, which it did not do. Indeed, the State concedes it was not pursuing a concurrent
- independent investigation at the time of I.T.’s disclosures. Therefore, while the Juvenile Mental Health Statute limits the State’s use of a juvenile’s statements, it does not prevent the State from ensuring that juveniles face appropriate consequences for their actions. Conclusion We conclude that the State may appeal a juvenile court order that suppresses evidence, if d oing so terminates the proceeding. We also con strue the Juvenile Mental Health Statute ’s limited immunity as prohibiting both use and derivative use of a juvenile’s statements to prove delin

quency
— a safe harbor that honors the Legislature’s intent, while avoiding any question of the Statute’s constitutionality that would otherwise be implicated . We therefore affirm the trial court. Dickson, C.J., and Rucker, David, and Massa, JJ., concur.