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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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  1. Joseph Buser, Montgomery County Chief Prosecutor, has been involved in both representing the State of Indiana as Prosecutor while filing as Representing Attorney on behalf of himself and the State of Indiana in Civil Proceedings for seized cash and merchandise using a Verified Complaint For Forfeiture of Motor Vehicle, Us Currency And Reimbursement Of Costs, as is evident in Montgomery County Circuit Court Case Number 54C01-1401-MI-000018, CCS below, seen before Judge Harry Siamas, and filed on 01/13/2014. Sheriff Mark Castille is also named. All three defendants named by summons have prior convictions under Mr. Buser, which as the Indiana Supreme Court, in the opinion of The Matter of Mark R. McKinney, No. 18S00-0905-DI-220, stated that McKinney created a conflict of interest by simultaneously prosecuting drug offender cases while pocketing assets seized from defendants in those cases. All moneys that come from forfeitures MUST go to the COMMON SCHOOL FUND.

  2. I was incarcerated at that time for driving while suspended I have no felonies...i was placed on P block I remember several girls and myself asking about voting that day..and wasn't given a answer or means of voting..we were told after the election who won that was it.

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  4. Oh, and you fail to mention that you deprived the father of far FAR more time than he ever did you, even requiring officers to escort the children back into his care. Please, can you see that you had a huge part in "starting the war?" Patricia, i can't understand how painfully heartbreak ithis ordeal must have been for you. I read the appellate case and was surprised to see both sides of the story because your actions were harmful to your child; more so than the fathers. The evidence wasn't re weighed. It was properly reviewed for abuse of discretion as the trial court didn't consider whether a change of circumstance occurred or follow and define the statutes that led to their decision. Allowing a child to call a boyfriend "daddy" and the father by his first name is unacceptable. The first time custody was reversed to father was for very good reason. Self reflection in how you ultimately lost primary custody is the only way you will be able heal and move forward. Forgiveness of yourself comes after recognition and I truly hope you can get past the hurt and pain to allow your child the stability and care you recognized yourself that the father provides.

  5. Patricia, i can't understand how painfully heartbreak ithis ordeal must have been for you. I read the appellate case and was surprised to see both sides of the story because your actions were harmful to your child; more so than the fathers. The evidence wasn't re weighed. It was properly reviewed for abuse of discretion as the trial court didn't consider whether a change of circumstance occurred or follow and define the statutes that led to their decision. Allowing a child to call a boyfriend "daddy" and the father by his first name is unacceptable. The first time custody was reversed to father was for very good reason. Self reflection in how you ultimately lost primary custody is the only way you will be able heal and move forward. Forgiveness of yourself comes after recognition and I truly hope you can get past the hurt and pain to allow your child the stability and care you recognized yourself that the father provides.

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