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Court could find juvenile must register as sex offender

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A Montgomery Circuit Court had subject matter jurisdiction to order a juvenile to register as a sex offender for 10 years, the Indiana Court of Appeals held Monday.

T.W. appealed the order that he register as a sex offender for 10 years following his adjudication as a delinquent child for committing what would be two counts of Class C felony child molesting if committed by an adult. After he was discharged from the Indiana Department of Correction, the state filed the petition for T.W. to register as a sex offender. The trial court appointed two psychologists to evaluate him; T.W.’s attorney was never notified about the petition for T.W. to register as a sex offender or that he was being evaluated by psychologists.

The psychologists testified, over T.W.’s objection, that there was a high risk he would re-offend.

T.W. challenged the order on two issues: that the trial court didn’t have subject matter jurisdiction to make him register and that the two psychologists shouldn’t have been allowed to testify because his attorney hadn’t been notified about the evaluation and their testimonies were protected by the psychologist-patient privilege.

In T.W. v. State of Indiana, No. 54A01-1103-JV-125, the Court of Appeals rejected T.W.’s argument that Wallace v. State, 905 N.E.2d 371 (Ind. 2009), prevents him from being ordered to register as a sex offender. The state’s Juvenile Code doesn’t prohibit a juvenile court or a court with juvenile jurisdiction – as is the case here – from imposing what might be called “punishment” upon a juvenile, wrote Judge Michael Barnes. Another purpose of the code is to promote public safety, and the sex offender registry is directly related to the protection of the public.

“Although the sex offender registry statutes are not part of the Juvenile Code, it is logical to assume that the General Assembly intended courts with juvenile jurisdiction to also have subject matter jurisdiction to make a sex offender registry finding,” he wrote.

T.W. cited no authority to support his argument that his attorney should have been notified about his evaluation by psychologists, and the judges compared it to a discovery violation in failing to disclose evidence. There’s nothing to indicate bad faith or deliberate malfeasance regarding the fact that T.W.’s attorney was not alerted to the fact that the evaluation would take place, and it’s doubtful T.W. even had a right to have an attorney present for those examinations, the court ruled.

The judges also concluded that the psychologists’ testimony was allowed under the “catch all” exception of Indiana Code 25-33-1-17(6), which allows for a psychologist to disclose information in “circumstances under which privileged communications is abrogated under the laws of Indiana.”

It would be impossible for a trial court to carry out the statutory mandate that a trial court consider expert testimony concerning whether a child is likely to repeat an offense if the statutory psychologist-patient privilege prevented it, wrote Judge Barnes. He noted the appellate court’s holding is consistent with a case involving the psychologist-patient privilege in the context of termination of parental rights proceedings.

“… there is no statute expressly abrogating the psychologist-patient privilege in juvenile sex offender registry proceedings. Nonetheless, we conclude that such proceedings under Indiana Code Chapter 11-8-8 necessarily present a situation in which the privilege ‘is abrogated under the laws of Indiana’ by implication, at least with respect to the question of whether a juvenile is likely to reoffend,” he wrote.

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