If you have a child that is a tween or a teen or is going to be one some day, the concern over your child making the right choices and avoiding trouble has certainly crossed your mind. But, kids are kids and they are going to screw up sometimes. This week’s blog takes a look at the statutes that govern when a minor (under the age of 18) commits a criminal act. The Indianapolis Criminal Defense Attorneys at Banks & Brower are skilled litigators that have handled numerous juvenile criminal matters.
First things first, when a child commits an act that is commonly thought of as being a “crime” it is actually called a delinquent act when committed by a child. In fact, Indiana law states, ” A child is a delinquent child if, before becoming eighteen (18) years of age, the child commits a delinquent act described in this chapter.” The laws then go on to state what the “delinquent acts” are.
A child that commits a delinquent act will then be considered a delinquent child if the child:
(1) commits a delinquent ; and
(2) needs care, treatment, or rehabilitation that:
(A) the child is not receiving;
(B) the child is unlikely to accept voluntarily; and
(C) is unlikely to be provided or accepted without the coercive intervention of the court.
While delinquent acts are many times what would be a crime if committed by an adult they don’t have to be. A child can be delinquent if they leave home without permission, violate curfew, are disobedient, or if they refuse to attend school. If a child commits a delinquent act the police may take them into custody. If a minor commits any of the following crimes, law enforcement is required to notify the executive of the school district that the child attends within 48 hours:
(1) Murder (IC 35-42-1-1).
(2) Attempted murder (IC 35-41-5-1).
(3) Voluntary manslaughter (IC 35-42-1-3).
(4) Involuntary manslaughter (IC 35-42-1-4).
(5) Reckless homicide (IC 35-42-1-5).
(6) Aggravated battery (IC 35-42-2-1.5).
(7) Battery (IC 35-42-2-1).
(8) Kidnapping (IC 35-42-3-2).
(9) A sex crime listed in IC 35-42-4-1 through IC 35-42-4-8.
(10) Sexual misconduct with a minor (IC 35-42-4-9).
(11) Incest (IC 35-46-1-3).
(12) Robbery as a Level 2 felony or a Level 3 felony (IC 35-42-5-1).
(13) Burglary as a Level 1, 2 or 3 felony (IC 35-43-2-1).
(14) Carjacking (IC 35-42-5-2).
(15) Assisting a criminal as a Level 5 felony (IC 35-44.1-2-5).
(16) Escape (IC 35-44.1-3-4) as a Level 4 felony or Level 5 felony.
(17) Trafficking with an inmate as a Level 5 felony (IC 35-44.1-3-5).
(18) Causing death when operating a vehicle (IC 9-30-5-5).
(19) Criminal confinement (IC 35-42-3-3) as a Level 2 felony.
(20) Arson (IC 35-43-1-1) as a Level 2 or Level 3 felony.
(21) Possession, use, or manufacture of a weapon of mass destruction (IC 35-47-12-1).
(22) Terroristic mischief (IC 35-47-12-3) as a Class B felony.
(23) Hijacking or disrupting an aircraft (IC 35-47-6-1.6).
(24) A violation of IC 35-47.5 (controlled explosives) as a Level 2 or 3 felony.
(25) A controlled substances offense under IC 35-48.
(26) A criminal gang offense under IC 35-45-9.
If a law enforcement officer takes a child into custody they must then determine whether to detain them or release them to custody of their parents. The law enforcement officer will consider things such as safety of the community, safety of the child, the availability of the parents, and the likelihood the child will appear in juvenile court on their own. If a police officer detains a child, he/she must immediately notify the parents of where the child is being detained and for what reason.
If the child is held in custody they must have a detention hearing within 48 hours excluding weekends and holidays. In most instances at the detention hearing the Court will release the child to his/her parents; however the law gives specific things for the court to consider in deciding whether to release the juvenile or not. The factors to be considered are:
(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;
(4) return of the child to the child’s home is or would be:
(A) contrary to the best interests and welfare of the child; and
(B) harmful to the safety or health of the child; or
(5) the child has a reasonable basis for requesting that the child not be released.
The next step in the process is an intake officer, many times a juvenile probation officer, will conduct an inquiry that will usually include an interview with the child. This is a step where you may want to have an attorney depending on the nature of the delinquent act. The intake officer will then complete a report to the prosecutor with a recommendation to either take no further action, enter into an informal adjustment, or filing a formal petition. The recommendation to take no further action will be made on more minor offenses where the intake officer believes the parents have the situation well in hand. An informal adjustment is the child version of a diversion and will place the child under informal conditions to complete and when completed successful will result in no further action taken. Last, the filing of a petition is the child equivalent of filing formal charges.
If the Prosecutor files a formal petition the Juvenile Court will then review it to determine that there is probable cause for the petition and to determine that it is in societies’ or the child’s best interest to have the petition filed. If the child is in detention then a hearing on the petition must be had within 20 days, if the child is not detained it must be had within 60 days. If the child admits to the allegations the court may hold a dispositional hearing immediately, if the child denies the allegations the court shall set it for a fact finding hearing(like an adult trial) and may conduct the hearing immediately.
At the fact finding hearing, the burden of proof is the same as it is for an adult, beyond a reasonable adult. The Court may then discharge the child (essentially a finding of not guilty) or find the child delinquent (essentially a finding of guilty). If the child is found delinquent the case will then need to have a dispositional hearing (equivalent of a sentence hearing).
At a dispositional hearing the Court will have a pre-dispositional report that includes recommendations from probation as to what the child needs in terms of rehabilitation. In juvenile court the focus is on rehabilitation. The Court can require treatment, counseling, drug screening, parent/child counseling, or a period of time in juvenile detention.
This is a review of the process and procedures of the juvenile system. How it is implemented and applied can vary by the given situation. If you find your child facing a delinquency action, contact the Indianapolis Criminal Defense Attorneys at Banks & Brower to help guide your family through this trying situation.
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