FOR PUBLICATION                                           May 21 2013, 8:39 am




ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

VICTORIA L. BAILEY                              GREGORY F. ZOELLER
Marion County Public Defender Agency            Attorney General of Indiana
Indianapolis, Indiana
                                                AARON J. SPOLARICH
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

C.B.,                                           )
                                                )
        Appellant-Respondent,                   )
                                                )
               vs.                              )      No. 49A04-1207-JV-379
                                                )
STATE OF INDIANA,                               )
                                                )
        Appellee-Petitioner.                    )


        APPEAL FROM THE MARION SUPERIOR COURT, JUVENILE DIVISION
                     The Honorable Marilyn A. Moores, Judge
                    The Honorable Scott B. Stowers, Magistrate
                         Cause No. 49D09-1203-JD-801


                                       May 21, 2013

                               OPINION – FOR PUBLICATION

BAKER, Judge
          In this case, a juvenile entered into a conditional admission agreement pursuant to

which she admitted to committing what would have been class A misdemeanor Battery1 if

committed by an adult. In exchange, the State agreed to dismiss a separate delinquency

petition. Additionally, if the juvenile did not violate the agreement for ninety days, the

remaining delinquency petition would also be dismissed.           However, if the juvenile

violated the agreement, the juvenile court would determine that the agreement had failed,

and her case would proceed immediately to disposition.

          Before the ninety days had expired, the juvenile was arrested for what would have

been class A misdemeanor battery if committed by an adult. The juvenile court noted

that probable cause had been found for the new offense and set the matter for a

disposition hearing. Immediately before proceeding to disposition, however, the new

delinquency petition was dismissed. Nevertheless, the juvenile court determined that the

conditional admission agreement had failed and sentenced the juvenile to formal

probation.

          On appeal, the juvenile argues that she was denied due process when the juvenile

court would not permit her to present evidence regarding probable cause after the new

delinquency petition was dismissed.        We conclude that before a juvenile court can

determine that a conditional admission agreement has failed based upon probable cause

that a new offense has been committed, the juvenile court must independently find



1
    Ind. Code § 35-42-2-1.
                                               2
probable cause instead of merely relying on the probable cause finding that authorized

the filing of the delinquency petition.          Additionally, a juvenile must be given a

meaningful opportunity to challenge the existence of probable cause. Here, because the

juvenile court relied solely on the finding of the probable cause that supported the filing

of the new delinquency petition, and C.B. was not given a meaningful opportunity to

challenge probable cause, we reverse.

                                            FACTS2

       On March 9, 2012, nine-year-old L.H. had just exited her school bus when eleven-

year-old C.B. punched her in the face, causing her pain. L.H. and C.B. were neighbors,

and their families had been involved in ongoing disputes.

       On March 23, 2012, the juvenile court ordered the State to file a delinquency

petition under cause number 49D09-1203-JD-801(JD-801), alleging that C.B. was a

delinquent child for committing what would have been class A misdemeanor battery if

committed by an adult. In the same order, the juvenile court also authorized the State to

file a delinquency petition under cause number 49D09-1203-JD-799 (JD-799), which

arose from allegations that C.B. and her brother struck a six-year-old in the face and ribs

after the victim exited his school bus. Like the JD-801 petition, the JD-799 petition

alleged that C.B. was a delinquent child for committing what would have been class A

misdemeanor battery if committed by an adult.



2
  We held oral argument on April 8, 2013, in Indiana Court of Appeals courtroom in Indianapolis. We
thank counsel for their informative and illustrative oral advocacy.
                                                3
       On April 18, 2012, the State and C.B. entered into a conditional admission

agreement. Under the agreement, C.B. entered an admission in JD-801 in exchange for

the State’s dismissal of JD-799. The juvenile court was to take the agreement under

advisement, and if C.B. did not violate the terms for ninety days, the State would dismiss

the JD-801 petition. Some of the terms included in the agreement provided that C.B.

shall not:

       (a) commit any new offenses, (b) violate the terms of [her] probation (if
       currently on probation), (c) violate the conditions of [her] release ordered
       by the Court, or (d) commit any act that results in [her] receiving an in-
       school or out-of-school suspension or being suspended or expelled from
       school.

Appellant’s App. p. 39. Additionally, the agreement provided that if the juvenile court

determined that there was probable cause to believe that C.B. had violated the agreement,

including the provisions above, “the Court and parties will proceed to disposition and the

terms of the plea agreement will be “‘Open Argument to the Court at the Dispositional

Hearing.’” Id.

       On April 25, 2012, the juvenile court noted that C.B. “has picked up a new

offense, that has been authorized for filing” under cause number 49D09-1204-JD-1088

(JD-1088). Appellant’s App. p. 41. More particularly, C.B. had been arrested for what

would have been class A misdemeanor battery if committed by an adult.

       On May 23, 2012, the juvenile court held an initial hearing during which it noted

that the court had found that probable cause existed under JD-1088 based on the very fact

that it had been filed. Consequently, C.B. had violated the terms of her conditional

                                            4
admission agreement. The juvenile court set the matter for a disposition hearing on May

30, 2012.

       Before proceeding to disposition on May 30, 2012, the State requested a

continuance because the mother of the listed victims had contacted the State, stating that

they would not make the hearing because of illness. The motion was denied, and the

State moved to dismiss JD-1088.

       The juvenile court informed C.B. that JD-1088 had been dismissed but that she

still had to proceed to disposition from the conditional admission agreement.          The

probation department requested additional time to prepare its report, and the disposition

hearing was set for July 6, 2012. Additionally, C.B.’s counsel requested to be heard on

the issue of probable cause even though he conceded, “I understand at the last hearing

based upon the finding of probable cause [in JD-1088] that [the] conditional plea

agreement was shown as failed.” Tr. p. 6. The juvenile court informed him that his

arguments would have to wait until disposition stating, “if an additional charge is filed

after the Court finds probable cause on top of a[] [conditional] agreement . . . and then I

have to subsequently hear [a] probable cause hearing, that’s fine I will do so, but tread

lightly if you want to present another conditional to this Court.” Id. at 7.

       At the July 6, 2012 disposition hearing, C.B.’s counsel again requested to present

evidence regarding probable cause on cause number JD-1088.               The juvenile court

immediately questioned its jurisdiction to hear evidence regarding probable cause on a

dismissed case, but counsel argued that while the State presented the probable cause

                                              5
affidavit, “we had not complete[d] any investigation as of the initial hearing on that

case.” Tr. p. 11.

       The State countered that probable cause was found at the initial hearing. The

juvenile court again questioned its jurisdiction over a dismissed case but determined that

even “assuming for the sake of argument that the Court does, for purpose of this hearing,

I’m just going to deny the motion to reconsider probable cause as to the previously . . .

dismissed matter [JD-1088].” Id. at 16.

       The juvenile court proceeded to disposition, where it incorporated the

predisposition report providing for probation, counseling to be arranged for C.B.’s

mother at Reach for Youth, and C.B. to stay away from the victims. C.B.’s formal

probation was ordered to last until October 6, 2013. C.B. now appeals.

                                DISCUSSION AND DECISION3

       C.B. argues that she was denied due process when the juvenile court concluded

that she had violated her conditional admission agreement after the court had prevented

her from challenging probable cause in JD-1088. C.B. characterizes this as an issue of

first impression pointing out that she “can find no authority on point” regarding whether

she was denied due process before the trial court found that she had violated the

conditional agreement. Appellant’s Br. p. 5.

       Generally, the Due Process Clause of the Fourteenth Amendment to the United

States Constitution applies to juveniles alleged to be delinquent children. In re Gault, 387
3
  In the State’s brief, it argued that this Court lacked jurisdiction insofar as a conditional admission
agreement is not a final order. However, the State withdrew this position during oral argument.
                                                   6
U.S. 1, 30 (1967). As stated above, because there is no authority directly on point, we

must determine what process C.B. was due in the instant case.

        Initially, we recognize that there is no statute authorizing a juvenile court to

approve conditional admission agreements. However, our Supreme Court has recognized

that the purpose of the juvenile system is vastly different from the criminal justice

system. Jordan v. State, 512 N.E.2d 407, 408 (Ind. 1987). Specifically, the purpose of

the juvenile process is rehabilitation so that the juvenile will not become a criminal as an

adult and; accordingly, juvenile courts should have a variety of options for juveniles who

have delinquency problems. Id. Consequently, we approve of conditional admission

agreements as an important tool to be used within the juvenile court’s sound discretion.

        Moving forward to the process that is required before a juvenile court may

determine that a conditional admission agreement has failed based upon probable cause

that a new delinquent act has been committed, a juvenile court must find probable cause

independently from the probable cause that authorized the filing of the delinquency

petition. Put another way, a juvenile court may not rely solely on the fact that there was

probable cause to authorize filing a delinquency petition.4




4
  While we acknowledge our colleague’s concern that our holding is too broad, we emphasize that
juveniles are not simply youthful adults. Indeed, they are children, and to the extent that they are
children, their decision-making ability is underdeveloped. This is one of the reasons that the “juvenile
court system is founded on the notion of parens patriae, which allows the court to step into the shoes of
the parents.” In re M.T., 928 N.E.2d 266, 268 (Ind. Ct. App. 2010) (holding that “a trial court may not
modify a juvenile’s disposition without a hearing at which the State presents evidence supporting the
allegations listed in the revocation petition”).
                                                   7
       Furthermore, a juvenile must be given the opportunity to challenge the finding of

probable cause. In other words, the juvenile must be given a meaningful opportunity to

be heard on the issue of probable cause.

       Applying these principles to the instant case, at the May 23, 2012 pretrial hearing,

the State requested that the juvenile court find that the conditional admission agreement

had failed and to proceed to disposition pursuant to the terms of the agreement. Tr. p. 27.

The State pointed out that the agreement stated that if there was probable cause to believe

that she had violated the agreement, it “shall be shown as failed.” Id. at 28. The State

argued that by “authorizing the cause number in, ending in 1088 the Court has found

there to be probable cause.” Id. The juvenile court agreed. Id.

       At the May 30, 2012 hearing, the State dismissed JD-1088 after the witnesses

failed to appear. Tr. p. 4. Then, C.B., through counsel, requested to be heard on the

finding of probable cause under JD-1088. Although the record is a little unclear, it

appears that C.B. had at least one and maybe two witnesses prepared to testify at this

hearing. Id. at 6. The juvenile court responded, “[p]resent it at Disposition. And don’t

present an . . . agreement like this again.” Id.

       At the disposition hearing on July 6, 2012, C.B. again requested to present

evidence regarding probable cause.         Tr. p. 9.   The juvenile court questioned its

jurisdiction to grant this request on a dismissed case but permitted C.B.’s witness, K.Y.,

to testify. Id. at 11. K.Y. testified that she saw the alleged victim walking to her

babysitter’s house and that she saw C.B. a short time later. Id. at 12-13. K.Y. stated that

                                              8
that she did not see any altercation between the two girls and that there was no evidence

that an altercation had occurred. Id. at 13. On cross-examination, K.Y. testified that she

watched the alleged victim walk to her residence without incident. Id.

      After C.B. presented her evidence, the juvenile court again questioned its

jurisdiction to reconsider probable over a dismissed case, ultimately concluding,

“assuming for the sake of argument that the Court does, for purpose of this hearing, I’m

just going to deny the motion to reconsider probable cause as to the previously disma,

dismissed matter [JD-1088].” Tr. p. 16.

      In light of our conclusions above, it was error for the juvenile court to rely solely

on the finding of probable cause that authorized the filing of JD-1088.          Likewise,

although the juvenile court allowed C.B. to present evidence regarding probable cause, it

denied her motion to reconsider probable cause even though C.B. clearly established a

lack of probable cause. Indeed, the only evidence presented indicated that the incident

did not occur. To be clear, we are not saying that anytime a juvenile presents evidence

that tends to negate probable cause, a juvenile court must grant a motion to reconsider

probable cause. However, under these facts and circumstances where the only evidence

indicates a lack of probable cause, it is error to deny a motion to reconsider probable

cause. Accordingly, C.B. was denied due process.

      The judgment of the juvenile court is reversed.

RILEY, J., concurs.

BARNES, J., concurs with separate opinion.

                                            9
                               IN THE
                     COURT OF APPEALS OF INDIANA

C.B.,                                            )
                                                 )
        Appellant-Respondent,                    )
                                                 )
               vs.                               )    No.      49A04-1207-JV-379
                                                 )
STATE OF INDIANA,                                )
                                                 )
        Appellee-Petitioner.                     )




BARNES, Judge, concurring

        I concur fully that there is no evidence in this record that would have allowed the

trial court to trigger the sanctions in the conditional agreement. I, too, emphatically

support the use of agreements like the one used here.           Prosecutors and juvenile

defendants must have an opportunity to negotiate these sorts of agreements. It is clear to

me, as the majority posits, that basic due process demands more than what occurred here.

There was no delinquency petition on file here at the time the conditional agreement was

voided. The only testimony about the alleged incident was exculpatory. Yet, because

probable cause was found at one time on a since-dismissed delinquency petition,

sanctions were imposed. Not fair, not right, not constitutional in my view.
                                            10
       I part with the majority when it says that, “a juvenile court may not rely solely on

the fact that there was probable cause to authorize the filing of a delinquency petition”

and suggests that a conditional agreement like the one here could never be revoked based

only on the filing of another delinquency petition.       There are numerous probation

revocation cases, which I consider to be analogous to the present situation, establishing

that in some cases a probable cause finding in another matter may be used to revoke

probation. When a probation agreement says a probationer cannot be charged with any

new offense, then the mere fact of the probationer being charged with a new offense can

be enough to revoke probation. Pitman v. State, 749 N.E.2d 557, 561 (Ind. Ct. App.

2001), trans. denied. But if an agreement specifically says probation will be revoked if a

probationer commits a new offense, the mere fact of being charged with a new offense is

not enough to prove that the defendant committed a new offense and that probation

should be revoked. Figures v. State, 920 N.E.2d 267, 272-73 (Ind. Ct. App. 2010). Also,

where a new criminal charge has not been dismissed, a probable cause affidavit for the

new charge may be introduced into evidence to prove that the probationer actually

committed the new offense, but such an affidavit cannot be introduced where the new

charge was later dismissed because of evidentiary problems. Id. at 272. It also is well-

settled that probation cannot be revoked unless a hearing has been held at which the

probationer has been able to present his or her own evidence, in particular with respect to




                                            11
whether he or she committed a new crime. Cooper v. State, 917 N.E.2d 667, 672 (Ind.

2009).5

       Applying these cases to the present case, I would hold: (1) C.B.’s conditional

agreement prohibited her from committing a new offense, not from being charged with a

new offense, thus the mere fact that she was charged with a new offense was not enough

to revoke the agreement; (2) because the new delinquency charge was dismissed, the

State was required to present some independent evidence that the juvenile actually

committed that offense aside from the fact that the charge was filed, and that evidence

could not include the probable cause affidavit accompanying the dismissed petition; and

(3) because the State presented no evidence that C.B. committed a new offense, it was

erroneous for the trial court to revoke the conditional agreement.

       I think the language used by the majority could be construed too broadly. I

respectfully believe we must be careful not to overreach and that we should limit our

holding to the particular facts of this case.




5
 Our supreme court recently overruled Cooper to the extent it said probation could be revoked based on a
showing of probable cause that a probationer committed a new offense, in conflict with the statutes
governing probation that say a probation violation has to be proven by the higher standard of a
preponderance of the evidence. See Heaton v. State, 984 N.E.2d 614, 617 (Ind. 2013). The juvenile’s
agreement here was not governed by any statute, however, so the higher burden of proof required by
Heaton would not seem to apply in this case.
                                                  12
