                                                                     FILED
                                                                Sep 13 2018, 12:26 pm

                                                                     CLERK
                                                                 Indiana Supreme Court
                                                                    Court of Appeals
                                                                      and Tax Court


                                IN THE

       Indiana Supreme Court
                  Supreme Court Case No. 18S-JV-230

                                   R.R.,
                                 Appellant

                                    –v–

                          State of Indiana,
                                  Appellee

           Argued: May 31, 2018 | Decided: September 13, 2018

                  Appeal from the Lawrence Circuit Court
                Nos. 47C01-1409-JD-294, 47C01-1609-JD-342
         The Honorable John M. Plummer, III, Judge Pro Tempore

         On Petition to Transfer from the Indiana Court of Appeals
                           No. 47A04-1705-JV-944

                       Opinion by Justice Slaughter
                            Justice Goff concurs.
 Chief Justice Rush concurs in Parts I.B. and II. and dissents from Part I.A.,
                           with separate opinion.
 Justice Massa concurs in Part I.A. and dissents from Parts I.B. and II., with
                              separate opinion.
Justice David dissents with separate opinion, which Chief Justice Rush joins
                in part and which Justice Massa joins in part.
Slaughter, Justice.

   At a fact-finding hearing where R.R., a juvenile, was not present, the
trial court found R.R. violated his probation and adjudicated him a
delinquent for auto theft and false informing. R.R. argues that (1) juveniles
have a due-process right to be present at such hearings, and (2) the trial
court violated this right by holding the hearing in his absence. We assume
without deciding that R.R. is correct on the first issue and agree with him
on the second. We thus reverse the trial court’s delinquency determination
and remand for further proceedings.


Factual and Procedural History
   In September 2014, the State alleged R.R., then fourteen years old,
committed criminal mischief, a Class B misdemeanor for an adult. R.R.
admitted the allegations, and the court placed him on supervised
probation for six months. Beginning in May 2015, the State filed multiple
petitions to modify R.R.’s probation because he had violated the terms of
his probation. These modifications included housing him in a residential
treatment center for at-risk youth. The court ordered R.R. released from
this facility in June 2016 and placed him back on probation for six months.
Only six weeks later, the State again petitioned the court to modify R.R.’s
probation, noting more violations. In September 2016, the State alleged
R.R. committed auto theft, which would be a Level 6 felony had he been
an adult, and false informing, which would be a Class B misdemeanor. In
January 2017, the State filed a “Request for Taking Child Into Custody”
based on that September 2016 petition.

   On February 7, 2017, the court held a fact-finding hearing concerning
the September 2016 petition and the January 2017 request. R.R. was not
present, but his mother and counsel did appear. When asked if she knew
where her son was, R.R.’s mother answered, “No. He hasn’t even called
me since he left.” The court responded, “Well, let the record reflect that
this child’s whereabouts are unknown. The child’s mother is here. She
doesn’t know where he is. Sounds like he’s been gone for seven (7) or
eight (8) days.”

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   The State offered to proceed in R.R.’s absence, but R.R.’s counsel
balked. When asked if she objected to proceeding, R.R.’s counsel said,
“Yeah, I do object to that and I request a continuance so that [R.R.] can be
present at his hearing.” The court denied the motion and proceeded with
the fact-finding hearing despite R.R.’s absence. After the hearing, the court
found R.R. had violated the terms of his probation and committed auto
theft and false informing.

   Nearly two months later, on March 30, police detained R.R. under a
pick-up order, and he appeared at a dispositional hearing the same day.
At the hearing, the court ordered that R.R. be made a ward of the Indiana
Department of Correction. R.R. appealed, arguing he had a constitutional
right to appear at his fact-finding hearing, and the court violated that right
by holding the hearing in his absence.

   A divided Court of Appeals affirmed in a published opinion,
concluding R.R. had a right to be present at the hearing, but had waived
this right because he “knowingly and intentionally refused to appear.”
R.R. v. State, 93 N.E.3d 768, 770 (Ind. Ct. App. 2018). Adopting R.R.’s
interpretation would, the court observed, allow juveniles to “hijack trial
court dockets and avoid responsibility for their delinquent behavior by
knowingly and voluntarily (and repeatedly) refusing to appear at
factfinding hearings.” 93 N.E.3d at 774-75. The dissent believed R.R. had
not waived his right to appear because his conduct did not conform to the
waiver requirements outlined in our juvenile-waiver statute, Indiana
Code chapter 31-32-5. Id. at 775-76 (Vaidik, C.J., dissenting). We granted
transfer, thus vacating the Court of Appeals’ opinion, and now reverse.


Standard of Review
   At issue here are two questions of first impression: first, whether
juveniles have a due-process right to appear at a fact-finding hearing; and,
second, if they have such a right, how they can waive it. Both the existence
of constitutional rights and the requirements for waiving them are legal
questions we review de novo. When determining whether a juvenile has a
constitutional right that the Supreme Court of the United States has not

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expressly recognized, we will decide the question based on “our own
judicial examination of the various cases, statutes, and constitutional
principles pertinent thereto.” Bible v. State, 253 Ind. 373, 378, 254 N.E.2d
319, 320 (1970). Also relevant here are the meaning and scope of Indiana’s
juvenile waiver-of-rights statute. “A statute’s meaning and scope are legal
questions we review de novo.” Garner v. Kempf, 93 N.E.3d 1091, 1094 (Ind.
2018). Our goal is to effectuate the statute’s reasonable, commonly
understood meaning. Id. “If a statute is clear and unambiguous, we apply
its words and phrases in their plain, ordinary, and usual sense.” Id.
(citation and internal quotation marks omitted).


Discussion and Decision

I. The trial court violated R.R.’s presumed right to be
   present at a fact-finding hearing by failing to
   comply with the juvenile waiver-of-rights statute.

   A. We assume without deciding that juveniles are entitled
      to be present at fact-finding hearings on a delinquency
      charge.

  R.R. claims a constitutional right, under the Due Process Clause, to
appear at a fact-finding hearing on his delinquency charge, and the State
does not disagree. We decline to decide authoritatively this issue of first
impression in Indiana because the State does not contest R.R.’s right to
appear on this record, and we prefer to decide such questions after they
have been vetted fully in the adversary process. We thus assume without
deciding that juveniles are entitled to be present at such hearings. We turn
next to whether and how they can waive that right.




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   B. A juvenile can waive his right to be present at a fact-
      finding hearing but must do so according to our
      juvenile waiver-of-rights statute.
   In 1972, we reversed a juvenile’s first-degree-murder conviction,
finding the juvenile had not waived his Fifth Amendment privilege
against self-incrimination and thus the confession undergirding his
conviction had been obtained improperly. Lewis v. State, 259 Ind. 431, 439-
40, 288 N.E.2d 138, 142-43 (1972), superseded by statute as stated in B.A. v.
State, 100 N.E.3d 225, 234 (Ind. 2018). In that landmark decision, we held
that “a juvenile’s statement or confession cannot be used against him at a
subsequent trial or hearing unless both he and his parents or guardian
were informed of his rights to an attorney, and to remain silent.” Lewis,
259 Ind. at 439, 288 N.E.2d at 142. We also held that the child “must be
given an opportunity to consult with his parents, guardian or an attorney
representing the juvenile as to whether or not he wishes to waive those
rights.” Id. Only after such a consultation may the child elect to “waive his
rights if he so chooses provided of course that there are no elements of
coercion, force or inducement present.” Id.

   The legislature later expanded these waiver protections to all
constitutional and statutory rights when it enacted the juvenile waiver-of-
rights statute in 1978. 1978 Ind. Acts 1232-33 (codified at Ind. Code § 31-6-
7-3 (1978 Supp.)). Later recodified, the statute today provides “only” three
ways to waive rights that state or federal law confers on children—waiver
by counsel; waiver by a parent, guardian, custodian, or guardian ad litem;
or waiver by the child himself:


           Any rights guaranteed to a child under the Constitution of
           the United States, the Constitution of the State of Indiana,
           or any other law may be waived only:


            (1) by counsel retained or appointed to represent the child
            if the child knowingly and voluntarily joins with the
            waiver;


Indiana Supreme Court | Case No. 18S-JV-230 | September 13, 2018     Page 5 of 9
            (2) by the child’s custodial parent, guardian, custodian, or
            guardian ad litem if:


                     (A) that person knowingly and voluntarily waives
                     the right;


                     (B) that person has no interest adverse to the child;


                     (C) meaningful consultation has occurred between
                     that person and the child; and


                     (D) the child knowingly and voluntarily joins with
                     the waiver; or


            (3) by the child, without the presence of a custodial parent,
            guardian, or guardian ad litem, if:


                     (A) the child knowingly and voluntarily consents to
                     the waiver; and


                     (B) the child has been emancipated under I.C. 31-34-
                     20- 6 or I.C. 31-37-19-27, by virtue of having
                     married, or in accordance with the laws of another
                     state or jurisdiction.


I.C. § 31-32-5-1 (emphasis added).

   Unlike adult criminal defendants, who can waive their right to be
present by “fail[ing] to appear for trial and fail[ing] to notify the trial court
or provide it with an explanation of [their] absence”, Jackson v. State, 868
N.E.2d 494, 498 (Ind. 2007) (citations omitted), a juvenile’s waiver of rights
requires a heightened showing. Our analysis begins and ends with the
juvenile-waiver statute, which governs “any rights” guaranteed to a
juvenile. Neither R.R.’s counsel nor his parent waived his right to be
present, so subsections (1) and (2) of the statute do not apply. And R.R.


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was not emancipated when the court held the February 2017 fact-finding
hearing, so he could not have waived it himself under subsection (3).
Thus, under the statute’s plain meaning, there was no waiver of R.R.’s
right to be present. The trial court violated that right by holding a hearing
in his absence.


II. The absurdity doctrine does not apply here.
   In opposing transfer, the State argues that the statute, read literally,
“leads to the absurd result that a juvenile could hijack the juvenile justice
system and evade responsibility indefinitely by simply refusing to appear
for the fact-finding hearing.” We recently called the absurdity doctrine
“strong medicine” that “defeats even the plain meaning of statutes.”
Calvin v. State, 87 N.E.3d 474, 477 (Ind. 2017) (citations omitted).

   For the absurdity doctrine to apply, we require a two-part showing.
First, the text must impose an outcome no reasonable person could intend.
Second, a court must be able to fix the resulting absurdity by “changing or
supplying a word or phrase whose inclusion or omission was obviously a
technical or ministerial error”. ANTONIN SCALIA & BRYAN A. GARNER,
READING LAW: THE INTERPRETATION OF LEGAL TEXTS at 237-38 (2012). The
first requirement assures that the result truly is absurd, and not merely
unwise or unsound. The second limits courts to repairing obvious errors
and not rewriting substantive provisions because the drafter failed to
appreciate their unintended effect. Together, these requirements set a very
high bar.

   When there is a clear drafter’s or scrivener’s error, we will apply the
absurdity doctrine to give the law its obvious intended effect despite its
plain text. For example, a statute requiring motorists to carry an “invalid”
license or to ensure their vehicles have an “expired” plate would satisfy
the doctrine. So, too, would a statute inadvertently omitting the word
“not”, such as: “Convicted felons shall own or possess a handgun or other
firearm.” These examples would qualify for the doctrine because the
legislature obviously did not intend the enacted text to be interpreted as
written. And the judicial fix would be easy: drop the unintended prefix so

Indiana Supreme Court | Case No. 18S-JV-230 | September 13, 2018      Page 7 of 9
that “invalid” becomes “valid”; add the omitted prefix so that “expired”
becomes “unexpired”; insert the omitted word so that “shall own or
possess” becomes “shall not own or possess”.

   Unlike these examples, the juvenile-waiver statute neither leads to an
obviously unintended result nor lends itself to a clean and modest judicial
fix. The statute was intended to protect children, and it is more than
possible that the legislature intended the three listed ways for waiving
children’s rights to be exclusive. But even were we to conclude that no
reasonable legislator could have intended that a no-show teenager would
avoid waiver by resorting to such litigation gamesmanship, the judicial fix
would not be modest. It would require courts to rewrite the statute by
adding a substantive “fourth” waiver option the legislature did not enact.

   The absurdity doctrine is a slippery slope. Finding absurdity on this
record would risk substituting our view of the balance between protecting
and waiving juvenile rights for that of the legislature. We decline to do
that here. Thus, we read the juvenile-waiver statute to require that waiver
occur in one of only three ways the statute lays out expressly. Because the
failure to appear is not one of the statutory grounds for finding juvenile
waiver, we hold that R.R. did not waive his right to be present at his fact-
finding hearing.

   Our dissenting colleagues urge the legislature to give trial judges
discretion to find waiver where the juvenile does not appear at a
scheduled hearing. We do not quarrel with the invitation but observe that
the current juvenile-waiver statute ties judges’ hands by authorizing a
finding of waiver in “only” three circumstances not present here. Even if
holding a hearing in R.R.’s absence would make for a “just outcome” here,
we “interpret statutes based on their enacted text and not the justness of
the outcome” in a singular case. Garner v. Kempf, 93 N.E.3d 1091, 1098 (Ind.
2018). For good or ill, the current statute does not permit waiver even
when the Constitution would. In that respect, the statute affords juveniles
with greater rights than the Constitution requires. Thus, the dissent’s
conclusion that “holding the hearing in R.R.’s absence comported with
due process” is both true and beside the point. We do not conclude that


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finding a waiver here would violate due process, only that it would
violate the current statute. The legislature can always rewrite the statute to
loosen or further tighten the requirements for waiver. We hold only that
the current statute does not permit a finding of waiver on this record.


Conclusion
   For these reasons, we reverse the trial court’s judgment and remand for
further proceedings consistent with this opinion.


Goff, J., concurs.
Rush, C.J., concurs in Parts I.B. and II. and dissents from Part I.A.,
with separate opinion.
Massa, J., concurs in Part I.A. and dissents from Parts I.B. and II.,
with separate opinion.
David, J., dissents with separate opinion which Rush, C.J., joins in
part, and which Massa, J., joins in part.



ATTORNEY FOR APPELLANT
Cara Schaefer Wieneke
Wieneke Law Office, LLC
Brooklyn, Indiana

ATTORNEYS FOR APPELLEE
Curtis T. Hill, Jr.
Attorney General
Indianapolis, Indiana

Andrew Kobe
Laura R. Anderson
Deputy Attorneys General
Indianapolis, Indiana




Indiana Supreme Court | Case No. 18S-JV-230 | September 13, 2018     Page 9 of 9
Rush, C.J., concurring in part, dissenting in part.

   I agree with Justice David that the Court should decide—rather than
assume without deciding—that R.R. has a constitutional right to be
present at the fact-finding hearing. Otherwise, I concur with the majority.
Massa, J., concurring in part, dissenting in part.

   I agree with Justice Slaughter that the Court may assume without
deciding that R.R. has a constitutional right to be present at the fact-
finding hearing. Otherwise, I concur with the dissent.
David, J., dissenting.

   While I appreciate Justice Slaughter’s thoughtful majority opinion, I
must respectfully dissent. First, as a threshold matter, I would find that
R.R. does have a constitutional right to be present at the fact-finding
hearing. Second, I believe that despite the juvenile waiver of rights
statute, R.R. waived his right to be present at the fact-finding hearing
under the facts and circumstances of this case.

   As the State observes, the plain language of the statute contemplates
that the juvenile will be present to waive or not waive as the case may be,
and does not address a situation where the juvenile has run away or
disappeared. As the U.S. Supreme court has held: “the applicable due
process standard in juvenile proceedings. . .is fundamental fairness.”
McKeiver v. Pennsylvania, 403 U.S. 528, 543, 91 S. Ct. 1976, 1985, 29 L. Ed.
2d 647 (1971). Here, I believe the facts that R.R. had presumably run
away, there is a pickup order for him, he is close to 18 and has great
familiarity with the system make it a just outcome that hearing be held in
his absence.

  Further, at least one other jurisdiction recognizes a juvenile's right
(without an attorney or parent joining the waiver and without
emancipation) to waive his or her presence at important proceedings. See
Com. v. B.J., 241 S.W.3d 324, 328 (Ky. 2007) (Juvenile, who was brought to
family court on allegations that he was a habitual truant, validly waived
his right to appear at both his adjudication and disposition hearings;
juvenile, at his arraignment, was informed of his future court dates,
juvenile's mother made representations to counsel that juvenile was aware
of hearing and chose not to attend, and no evidence was presented that
juvenile's absence was involuntary).

   I urge our legislature to consider amending the statute to give trial
court judges some discretion in situations where the juvenile is absent.
That is, the statute should allow for knowing, intelligent and voluntary
waiver by a juvenile who is aware of upcoming proceedings but chooses
to be absent with no adequate explanation. This is not to say that holding
a hearing in the juvenile’s absence would be best practice or even not
unusual. The best practice would be to issue a pickup order and have the
juvenile be present for the proceedings, but in some circumstances, it may
be appropriate to hold a hearing in the juvenile’s absence in order to
prevent juveniles who are aware of an upcoming hearing date to get a free
pass by disappearing. Our trial judges should be able to advise a juvenile
that if they fail to appear at a hearing, the matter may proceed without
them. Then, depending on the age of the juvenile and the circumstances,
the trial court should be able to exercise its discretion about whether or
not to proceed. In this case, I believe holding the hearing in R.R.’s absence
comported with due process. Accordingly, I would affirm the trial court.


Rush, C.J., joins in part and Massa, J., joins in part.




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