ATTORNEYS FOR APPELLANT                                       ATTORNEY FOR APPELLEE
Gregory F. Zoeller                                            Donald R. Shuler
Attorney General of Indiana                                   Goshen, Indiana
Brian Reitz
Deputy Attorney General
Indianapolis, Indiana
______________________________________________________________________________________


                                             In the
                         Indiana Supreme Court                                   Mar 12 2014, 11:09 am
                              _________________________________

                                      No. 20S03-1309-JV-583

STATE OF INDIANA,
                                                              Appellant (Petitioner),

                                                 V.

I.T.,
                                                        Appellee (Respondent).
                              _________________________________

        Appeal from the Elkhart Circuit Court, Juvenile Division, No. 20C01-1111-JD-519
                          The Honorable Terry C. Shewmaker, Judge
                      The Honorable Deborah Domine, Juvenile Magistrate
                           _________________________________

        On Petition to Transfer from the Indiana Court of Appeals, No. 20A03-1202-JV-76

                                          March 12, 2014

Rush, Justice.

        More than half of children entering the Indiana juvenile justice system have mental health
or substance abuse problems. In response, Indiana has established a pilot project to screen and treat
juveniles suffering from these issues. To facilitate participation in the project, the Legislature en-
acted the Juvenile Mental Health Statute, barring a child’s statement to a mental health evaluator
from being admitted into evidence to prove delinquency. We construe that statute to confer both
use immunity and derivative use immunity, in order to avoid a likely violation of the constitutional
privileges against self-incrimination under the Fifth Amendment and Article 1, Section 14 of the
Indiana Constitution. We therefore affirm the trial court.
                                   Facts and Procedural History

        I.T. admitted to conduct that would be Class B felony child molesting if committed by an
adult. As a condition of his probation, the trial court ordered him to undergo treatment for
juveniles with sexual behavior problems, including polygraph examinations. During one of those
exams, I.T. admitted to molesting two other children. As a result, the trial court moved I.T. from
his home to juvenile detention, then to residential treatment in the START (Sexually Traumatized
Adolescents in Residential Treatment) program. In addition, the Department of Child Services
and the police investigated the admissions, and the police then interviewed one of the victims and
I.T. The State filed a new delinquency petition based on I.T.’s statements to his therapist.

        The juvenile court initially approved the new delinquency petition, but I.T. moved to dis-
miss it, arguing that the Juvenile Mental Health Statute, Ind. Code § 31-32-2-2.5(b) (2008), barred
the State’s evidence. The trial court granted the motion, finding that the Statute prohibited using
I.T.’s statements to the evaluator or evidence derived from those statements: “Removing the con-
sideration of the prohibited evidence, the Court can find no other evidence whatsoever to support
a finding of probable cause, . . . nor can the Court find that it is in the best interest of the child or
the public that the petition in this case be filed.” The court gave the State ten days to refile based on
independently gathered evidence, but the State appealed instead.

        The Court of Appeals concluded “sua sponte that the State is without authority to appeal a
juvenile court’s order withdrawing its approval of the filing of a delinquency petition.” State v. I.T.,
986 N.E.2d 280, 281 (Ind. Ct. App. 2013), trans. granted, 993 N.E.2d 625 (Ind. 2013). We granted
transfer to address two issues. Ind. Appellate Rule 58(A). First, we address whether the State could
appeal the trial court’s decision and conclude it could because the trial court essentially suppressed
evidence ending the proceeding. Second, we reconcile the limited immunity in part (b) of the Juve-
nile Mental Health Statute with the constitutional privilege against self-incrimination, and construe
the Statute to conform to that privilege. Here, because I.T.’s statements during a court-ordered
therapeutic polygraph were impermissibly used against him, we affirm the trial court.

                                         Standard of Review

        The State’s right to appeal the trial court’s order and the scope of I.T.’s immunity under the
Juvenile Mental Health Statute are both issues of law. We therefore review them de novo.
Branham v. Varble, 952 N.E.2d 744, 746 (Ind. 2011).


                                                   2
                                      Discussion and Decision

I. State’s Authority to Appeal.

        The Court of Appeals determined that the State lacked the statutory authority to appeal
because the State may appeal criminal matters only when authorized by statute. State v. Brunner,
947 N.E.2d 411, 415 (Ind. 2011).1 The State argues it may appeal the order because the trial
court labeled its order a “Memorandum and Order on Motion to Dismiss,” and Indiana Code
section 35-38-4-2(1) (2008) provides that the State may appeal “an order granting a motion to
dismiss an indictment or information.” But in juvenile proceedings, the State files a delinquency
petition, not an indictment or an information. I.C. § 31-37-10-1 (2008). That difference is sig-
nificant because unlike an indictment or information, filing a delinquency petition requires the trial
court’s approval—a discretionary finding of “probable cause to believe that: (A) the child is a
delinquent child; and (B) it is in the best interests of the child or the public that the petition be
filed.” I.C. § 31-37-10-2(2) (2008). By contrast, “lack of probable cause is not grounds for
dismissing a charging information” against an adult offender, Flowers v. State, 738 N.E.2d 1051,
1055 (Ind. 2000), let alone on any “best interests” grounds. We therefore agree with the Court of
Appeals that a juvenile court’s discretionary decision to disapprove a delinquency petition is not
within any of the statutory grounds for the State to appeal. I.C. § 35-38-4-2.

        But unlike the Court of Appeals, we do not find that principle dispositive here. The Court
of Appeals looked beyond the order’s title and found that in substance, the order did not dismiss an
indictment but rather “unapproved” the initial filing of the delinquency petition. I.T., 986 N.E.2d at
286. Reading the order as a whole, though, we think the order is better characterized as suppressing
evidence. The trial court did ultimately “rescind[] the previously granted Order Approving Filing of
the Delinquency Petition” for lack of probable cause, echoing Indiana Code section 31-37-10-2(2)—
but that conclusion rests on finding I.T.’s statements to be “prohibited evidence” under the Juvenile
Mental Health Statute, and thus excluded from the trial court’s probable-cause and best-interests


1
    While juvenile delinquency proceedings are not criminal in nature, criminal rules apply in juve-
    nile matters unless the juvenile code states otherwise. I.C. § 31-32-1-1 (2008). Here, the juvenile
    code provides that parties in juvenile matters may appeal as provided by law. I.C. § 31-32-15-1
    (2008). Therefore, the State needs statutory authority to appeal juvenile delinquency proceedings,
    just as it does for criminal matters. See State v. C.D., 947 N.E.2d 1018, 1021 (Ind. Ct. App. 2011).


                                                   3
analysis. At bottom, then, the trial court’s order suppresses evidence and its “ultimate effect . . . is
to preclude further prosecution,” I.C. § 35-38-4-2(5)—an enumerated basis for the State to appeal,
even in juvenile matters, see C.D., 947 N.E.2d at 1021. Therefore, we conclude the State had
statutory authority to appeal the trial court’s order, and we proceed to the merits of its appeal.

II. The Juvenile Mental Health Statute Must Provide Both Use and Derivative Use Immu-
    nity to Pass Constitutional Scrutiny.

        The State argues that the Juvenile Mental Health Statute prevents it from introducing I.T.’s
actual statements to prove delinquency at trial, but not from using his statements to develop other
evidence—in other words, that the Statute provides “use immunity” but not “derivative use
immunity.” See In re Caito, 459 N.E.2d 1179, 1183 (Ind. 1984) (citing Kastigar v. United States,
406 U.S. 441 (1972)). But the trial court concluded that the Statute gives I.T. a limited immunity
against both use and derivative use of his statements, reasoning that because the constitutional pri-
vilege against self-incrimination confers both forms of immunity, the Statute cannot be construed to
provide any less protection. The State makes a compelling argument that the Statute’s language
confers only use immunity—but to avoid a likely violation of the constitutional privilege against
self-incrimination, we construe it to confer derivative use immunity as well.

    A. The Statute’s terms clearly confer use immunity, but do not necessarily extend to derivative
       use immunity.

        We begin with the language of the Statute to determine the scope of its protections. “Our
primary goal in interpreting any statute is to effectuate legislative intent.” N.L. v. State, 989 N.E.2d
773, 777 (Ind. 2013). An unambiguous statute needs no interpretation, and courts must “giv[e]
effect to the plain and ordinary meaning of the language.” Sloan v. State, 947 N.E.2d 917, 922 (Ind.
2011). But on the other hand, “when the validity of a statute is drawn in question, and even if a
serious doubt of constitutionality is raised, it is a cardinal principle that the Supreme Court will
first ascertain whether a construction of the statute is fairly possible by which the question may be
avoided.” Indiana Wholesale Wine & Liquor Co. v. State ex rel. Indiana Alcoholic Beverage
Comm’n, 695 N.E.2d 99, 106 (Ind. 1998) (emphasis added) (substitutions omitted) (quoting
Ashwander v. Tennessee Valley Auth., 297 U.S. 288, 348 (1936) (Brandeis, J., concurring)).
Adopting such a saving construction respects the “strong presumption of constitutionality” of
statutes that come before us for review. See Girl Scouts of So. Ill. v. Vincennes Ind. Girls, Inc.,
988 N.E.2d 250, 255 (Ind. 2013).


                                                   4
        The Juvenile Mental Health Statute, which applies only in juvenile proceedings,
generally prohibits the State from using a child’s statements to an evaluator2 as evidence against
the child on the issue of delinquency, subject to several exceptions:

        (b) Except as provided in subsection (d) and except for purposes of:
            (1) a probation revocation proceeding; or
            (2) a modification of a dispositional decree under IC 31-37-22;
        a statement communicated to an evaluator in the evaluator’s official capacity may
        not be admitted as evidence against the child on the issue of whether the child com-
        mitted a delinquent act or a crime.
        (c) This section does not affect the admissibility of evidence when a juvenile inter-
            poses the defense of insanity.
        (d) This section does not affect a disclosure or reporting requirement . . . under
            statute or in case law regarding a statement that:
            (1) relates directly to the facts or immediate circumstances of a homicide; or
            (2) reveals that the child may intend to commit a crime.

I.C. § 31-32-2-2.5(b)–(d). Those terms do not block the State from using a juvenile’s statements in
treatment to prove issues other than delinquency. T.W. v. State, 953 N.E.2d 1120, 1124–25 (Ind. Ct.
App. 2011) (using juvenile’s statements to require juvenile to register as a sex offender). And they
expressly permit use of the statements, even to prove delinquency, for purposes of revoking proba-
tion, modifying a dispositional decree, and countering an insanity defense. I.C. § 31-32-2-2.5(b)–
(c). Further, the statute refers only to a juvenile’s “statement,” unlike the criminal code’s use immu-
nity statute, which expressly extends also to use of “evidence derived from” a witness’s testimony.
I.C. § 35-34-2-8(a) (2008). Though the statutory language clearly grants use immunity, it is far less
clear whether its protection also extends to derivative use of the statement to prompt further investi-
gation to develop similar evidence from other sources.

    B. Construing a statute to provide both use and derivative use immunity is a safe harbor
       against violating the constitutional privilege against self-incrimination.

        But failing to provide derivative use immunity would raise a serious doubt about the
Statute’s constitutionality. Use immunity, standing alone, “cannot protect an individual’s right not

2
    Indiana Code section 31-9-2-43.8 (2008) defines an evaluator as “a person responsible for pro-
    viding mental health screening, evaluation, or treatment to a child in connection with a juvenile
    proceeding or probation proceeding under this title.”


                                                  5
to give evidence against himself because the compelled testimony may still be employed by
investigators who have thereby gained a knowledge of the details of the crime and other sources of
incriminating evidence.” Caito, 459 N.E.2d at 1183. To protect effectively against compelled self-
incrimination, then, an immunity statute must grant both use and derivative use immunity. See
Kastigar, 406 U.S. at 453; Brown v. State, 725 N.E.2d 823, 826 (Ind. 2000); Caito, 459 N.E.2d at
1183; Wilson v. State, 988 N.E.2d 1211, 1219–20 (Ind. Ct. App. 2013). A statute that compels a
statement against oneself, but without providing both forms of immunity, is therefore invalid.
Kastigar, 406 U.S. at 453; see also Counselman v. Hitchcock, 142 U.S. 547, 564–65 (1892)
(testimony could not be compelled under a statute that did not “prevent the use of [the witness’s]
testimony to search out other testimony to be used in evidence against him”—that is, derivative
use—because it failed to extend the same protection as the constitutional privilege).

       Yet using I.T.’s testimony “to search out other testimony to be used in evidence against
him” is precisely what the State did here. The court ordered I.T. into treatment as a condition of
probation—so remaining silent during therapy could well have been viewed as violating his pro-
bation by refusing to participate. Then, during a therapeutic polygraph administered as part of that
compulsory treatment, I.T. disclosed two other incidents of child molestation; I.T.’s therapist
informed DCS of the new victims; and the State filed a delinquency petition based on I.T.’s
admission to his therapist and evidence derived from those admissions. Indeed, the State concedes
that but for I.T.’s admissions, it would not have filed the delinquency petition—that is, it had no
“independent, legitimate source for the disputed evidence” beyond the statement itself, as would be
necessary to avoid a self-incrimination violation. Cf. Kastigar, 406 U.S. at 460 (internal quotation
marks omitted) (quoting Murphy v. Waterfront Comm’n of New York Harbor, 378 U.S. 52, 79 n.18
(1964)). Accordingly, the circumstances of this case necessarily implicate a substantial question
about the constitutional protections against self-incrimination.

       Nevertheless, we need not directly answer that constitutional question, because “a con-
struction of the statute is fairly possible by which the question may be avoided.” Indiana Wholesale,
695 N.E.2d at 106 (quoting Ashwander, 297 U.S. at 348 (Brandeis, J., concurring)). We may not
“effectively rewrit[e] a statute to save it from constitutional infirmity”—but we will generally
adopt a saving construction as long as there is a reasonable interpretation that avoids the constitu-
tional problem. Id. at 108 n.21 (citing Boehm v. Town of St. John, 675 N.E.2d 318, 321 (Ind. 1996)
and Grody v. State, 257 Ind. 651, 659–60, 278 N.E.2d 280, 285 (1972)). Moreover, “the purpose of


                                                 6
our juvenile code [is] to ‘ensure that children within the juvenile justice system are treated as per-
sons in need of care, protection, treatment, and rehabilitation,’” and it “must be liberally construed
to that end.” In re K.G., 808 N.E.2d 631, 637 (Ind. 2004) (quoting I.C. § 31-10-2-1(5)). And as
set forth below, we believe that adopting a liberal “saving construction” of part (b) of the Statute
is consistent with its history and purpose.

    C. Derivative use immunity is consistent with the Statute’s history and purpose, as well as
       the purposes of the juvenile code in general.

        The juvenile code’s focus on individualized diagnosis and treatment makes it “vastly dif-
ferent” than the adult criminal code. J.C.C. v. State, 897 N.E.2d 931, 935 (Ind. 2008). “This policy
is grounded in the Progressive Movement of the 19th and 20th centuries when American society
rejected treating juvenile law violators and adult criminals the same, favoring individualized
diagnosis and treatment for juveniles.” Id. And the Juvenile Mental Health Statute’s history shows
that same focus.

        Until recently, the aim of diagnosis and treatment was hindered by a failure to screen child-
ren for mental health disorders.3 This lack of diagnosis was particularly troubling because “well over
50 percent” of youth detained in Indiana “have mental health and/or substance abuse problems.”
Indiana State Bar Ass’n, supra note 3. And even apart from the humane reasons for treating juve-
nile offenders, failing to treat them is costly: “Placing children with unmet mental health needs in
the juvenile justice system and failing to provide them appropriate treatment causes long-term
societal costs, including increased life-long health care costs, increased reliance on public welfare
support, and greater costs for the overburdened juvenile and criminal justice systems.” Id.

        To address that problem, over 250 “lawyers, legislators, government officials, judges,
doctors, mental health professionals and educators” gathered in 2004 for the Children, Mental
Health and the Law Summit. JauNae M. Hanger, Screening, Assessment and Treatment: Indiana
Addresses Mental Health in Juvenile Detention Centers, Corrections Today, Feb. 2008, at 37. In
relevant part, two recommendations emerged from the Summit. First, Indiana needed “[a]

3
    The Indiana State Bar Association, Children, Mental Health and the Law Summit: Official Report
    on Summit Findings with Recommendations 2 (2005), available at http://www.inbar.org/Portals/
    0/downloads/legal%20news/1-%20reference%20materials/D10%20-%20Mental%20Health%20
    Summit-%20Final%20Report.pdf.


                                                  7
standardized, integrated, statewide program for screening, assessment and treatment of all youth”
for mental health issues because “research-based treatment programs can reduce recidivism and
future involvement in the juvenile justice system by 25 to 80 percent.” Indiana State Bar Ass’n,
supra note 3, at 3–4. Second, “[a]ny program of screening, assessment and treatment of youth
entering the juvenile justice system must include protections so that the information is not used to
prove their guilt,” id. at 4–5—because “[w]ithout open and honest communications between”
treatment providers and patients, “the rehabilitative process will fail.” Daymude v. State, 540
N.E.2d 1263, 1267 (Ind. Ct. App. 1989), trans. denied. In addition, the Indiana Juvenile Mental
Health Screening, Assessment and Treatment Project (“the Project”) grew from the Summit, and
it implemented routine screening and treatment of mental health disorders in numerous counties,
including Elkhart County, where this case originated. Matthew C. Aalsma & the Indiana Juvenile
Mental Health Screening, Assessment & Treatment Project, 2011 Report and Recommendations
1, 4 (2011), available at http://www.inbar.org/Portals/0/downloads/legal%20news/2011-Report-
Recommendations.pdf.

        But the viability of those efforts depended on addressing the self-incrimination issue. To
that end, members of the Project and the Indiana State Bar Association advocated for a law “that
prevents the use of information obtained through screening, assessment or treatment in the juvenile
justice system from being used for purposes of guilt in adjudication proceedings.” Hanger, supra, at
38. And in response, the Legislature passed the Juvenile Mental Health Statute, which took effect
on July 1, 2007. I.C. § 31-32-2-2.5, Act of May 2, 2007, P.L. 120-2007, §§ 3–4, 2007 Ind. Acts
1839–40.4 Without the Statute’s protections, the “potential for self-incrimination” would have a
“deleterious effect, namely the deterrence of youth from consenting to” screening or treatment.
Aalsma, supra, at 2. The Statute therefore aimed to protect against self-incrimination “so that [sys-
tematic] screening contemplated by the Indiana Project could in fact occur.” Id.

        We therefore feel confident that the Legislature did not intend to permit such derivative use
of juveniles’ statements in therapy. Indiana Code section 31-33-5-1 (2008) required I.T.’s therapist
to report his disclosures to DCS, and Indiana code section 31-33-8-1(a) (2008) required DCS to

4
  This bill was codified at Indiana Code section 31-37-8-4.5 and Indiana Code section 31-32-2-2.5.
The two sections contain virtually identical language, but the former protects a juvenile during an
investigation or preliminary inquiry, while the latter (the one that applies in this case) protects a
juvenile subject to a juvenile court’s jurisdiction. Our interpretation applies equally to both statutes.


                                                   8
investigate the report—both of which are consistent with the juvenile code’s goals. And so are the
Statute’s exceptions permitting the statements to be used for revoking probation, modifying the
dispositional decree, or other matters besides delinquency. I.C. § 31-32-2-2.5(b)–(c). Because pro-
bation “is a matter of grace and a conditional liberty that is a favor, not a right,” Cox v. State, 706
N.E.2d 547, 549 (Ind. 1999) (internal quotation marks omitted), “probationers do not receive the
same constitutional rights that defendants receive at trial,” and courts have discretion to establish
conditions for probation. Reyes v. State, 868 N.E.2d 438, 440 (Ind. 2007). Similarly, modifying
disposition merely adjusts the rehabilitative services ordered in connection with a delinquency
determination that has already been made. In either case, the juvenile’s statement is used only to
better tailor services to their particular needs, and thus to promote their rehabilitation. Each of
those uses is for an issue other than determining delinquency, just as the statute expressly provides.

       By contrast, using the evidence derived from I.T.’s statements against him to prove his
delinquency is still in effect using the statement for the prohibited purpose of determining “whether
the child committed a delinquent act or crime.” I.C. § 31-32-2-2.5(b). Moreover, it would defeat
the larger purpose of the Statute. Failing to prohibit derivative use would mean that I.T. and other
juvenile offenders would be discouraged from participating openly in treatment to reduce their
likelihood of reoffending. Also, by participating in treatment, the juvenile may reveal previously
unknown victims, and the reporting requirements enable the victims to receive treatment as well.
Without derivative use immunity, then, juvenile offenders would be deterred from participating in
treatment—increasing recidivism while decreasing identification and treatment of victims. We
find it highly unlikely that the Legislature meant to create such a backwards incentive, which
would not only disserve the Statute’s purpose, but raise a significant question of its constitution-
ality. We will therefore construe the Statute to provide both use and derivative use immunity as a
safe harbor against jeopardizing its constitutionality.

III. A Juvenile’s Compelled Statements May Not Be Used Against Him—Even in a Probable-
     Cause Affidavit.

       Because the Statute must be construed to provide use and derivative use immunity, the
trial court reached the correct result. As discussed in Part I, when the State files a delinquency
petition, the trial court must determine whether it is in the child’s best interests before the case may
proceed—unlike criminal charging informations or indictments, which require no such threshold
inquiry. Thus, facts recited in the probable cause affidavit are necessarily “admitted as evidence


                                                   9
against the child on the issue of whether the child committed a delinquent act or crime,” as part of
the trial court’s best-interests determination. But here, the majority of the evidence in the probable-
cause affidavit was precisely what even a narrow view of the Statute forbids—I.T.’s statements
during court-ordered therapy. And the State concedes that the remainder of the allegations are
entirely derived from those statements. In each respect, I.T.’s statements made during court-
compelled therapy were improperly used against him.

       Our conclusion that the probable cause affidavit violates the Juvenile Mental Health Statute
does not leave the State without recourse, nor does it relieve a juvenile from consequences based
on disclosures during court-ordered treatment. The Statute provides that the State may use a
juvenile’s statements in treatment to revoke or modify probation. I.C. § 31-32-2-2.5(b). Moreover,
the juvenile’s statements may be used for purposes other than proving delinquency, such as at a
CHINS hearing, at an expungement hearing, or at a Sex-Offender Registry hearing. See T.W., 953
N.E.2d at 1124–25 (finding that a juvenile’s statements in treatment could be used for other
purposes, such as requiring a juvenile to register as a sex offender). And the Juvenile Mental
Health Statute does not prevent the State from introducing evidence of a juvenile’s delinquency, if
it can “affirmative[ly] . . . prove that the evidence it proposes to use is derived from a legitimate
source wholly independent of the compelled testimony.” Kastigar, 406 U.S. at 460.

       Here, I.T. was removed from his home and placed first in detention, then a residential
treatment facility. Further, the trial court gave the State an opportunity to introduce evidence not
derived from I.T.’s statements, which it did not do. Indeed, the State concedes it was not
pursuing a concurrent-independent investigation at the time of I.T.’s disclosures. Therefore, while
the Juvenile Mental Health Statute limits the State’s use of a juvenile’s statements, it does not
prevent the State from ensuring that juveniles face appropriate consequences for their actions.

                                             Conclusion

       We conclude that the State may appeal a juvenile court order that suppresses evidence, if
doing so terminates the proceeding. We also construe the Juvenile Mental Health Statute’s limited
immunity as prohibiting both use and derivative use of a juvenile’s statements to prove delin-
quency—a safe harbor that honors the Legislature’s intent, while avoiding any question of the
Statute’s constitutionality that would otherwise be implicated. We therefore affirm the trial court.

Dickson, C.J., and Rucker, David, and Massa, JJ., concur.


                                                  10
