May 1, 2012


Delinquency and dependency proceedings: Juvenile courts in Indiana determine whether the public should be excluded from a proceeding except in delinquency proceedings where the child is charged with committing an act that would be murder or a felony if committed by an adult. In those cases, the proceeding is open to the public. Ind. Code Ann. §§ 31-32-6-2, 31-32-6-3 (West 2012). When requested by the prosecutor, the child involved or the child’s guardian ad litem, counsel, parent, guardian or custodian, the court may close a proceeding during the testimony of a child witness or child victim if the court finds that an allegation or a defense involves matters of a sexual nature and closing the proceeding is necessary to protect the welfare of a child witness or child victim. Id. § 31-32-6-4. In deciding whether closure is necessary to protect the welfare of a child witness or child victim, the court should consider: 1) the nature of the allegation or defense; 2) the age of a child witness or child victim; 3) the psychological maturity of a child witness or child victim; and 4) the desire of a child witness or child victim to testify in a proceeding closed to the public. Id. § 31-32-6-5. A proceeding also may be closed by request during the testimony of a health care provider, social worker, therapist, school counselor or school psychologist under certain circumstances. Id. § 31-32-6-4. If a proceeding is closed to the public, the court must make findings of fact concerning the closure and place the exclusion order in the file of the proceedings. Id. § 31-32-6-6.

Delinquency and dependency records: All juvenile court records in Indiana generally are confidential, Ind. Code Ann. § 31-39-1-2, but several exceptions exist. Records are available to the public without a court order in delinquency proceedings alleging that a child is delinquent as the result of any of the following alleged acts or combination of alleged acts: 1) an act that would be murder or a felony if committed by an adult; 2) an aggregate of two unrelated acts that would be misdemeanors if committed by an adult if the child was 12 years old or older when the acts were committed; and 3) an aggregate of five unrelated acts that would be misdemeanors if committed by an adult if the child was 11 years old or younger when the acts were committed. This public access extends to the child’s name, age, nature of the offense, chronological case summaries, index entries, summonses, warrants, petitions, orders, motions not concerning psychological evaluations or child abuse and neglect, decrees and, if adjudicated delinquent for the alleged acts or combination of alleged acts, the child’s photograph. All other records in delinquency proceedings are confidential and may be released only to certain individuals and agencies designated by statute. The identifying information of any child victim or child witness also is confidential under this statute. Id. 31-39-2-8.

Law enforcement agencies may disclose to the public the following information contained in records involving allegations of delinquency that would be a crime if committed by an adult: the nature of the offense allegedly committed and the circumstances immediately surrounding it, including the time, location and property involved; the identity of any victim; a description of the method of apprehension; any instrument of physical force used; the identity of any officers assigned to the investigation except for undercover units; the age and sex of any child apprehended or sought for the alleged commission of the offense; and, in limited circumstances, the child’s identity. Id. § 31-39-3-2. Also, the head of a law enforcement agency or that person’s designee may grant any person with a legitimate interest in the work of the agency or in a particular case access to the agency’s confidential records. Id. § 31-39-4-8.

In addition to these exceptions to the general rule of confidentiality, the juvenile court may grant any person with a legitimate interest in the work of the court or in a particular case access to the court’s legal records. A person with access to the records under this statute is not bound by the general confidentiality provisions and may publicly disclose the contents of the records. In exercising its discretion, the court should consider that the best interests of the safety and welfare of the community are generally served by the public’s ability to obtain information about the alleged commission of an act that would be murder or a felony if committed by an adult or the alleged commission of an act that would be part of a pattern of less serious offenses. Id. § 31-39-2-10. Interpreting this language, the state intermediate appellate court found that a trial court could not grant media access to confidential child-in-need-of-services records of children whose parents were accused of battery, neglect and causing the death of their sibling because there was no specific ongoing threat to the safety or welfare of the community. The trial court’s stated goals of educating the public, addressing the community’s interest in the welfare of the children and giving the public new insight into the workings of the trial court and the state Department of Child Services did not warrant disclosure of the records when awareness could be achieved by less intrusive measures, the court ruled. In re K.B., 894 N.E.2d 1013, 1017 (Ind. Ct. App. 2008). But another appellate court held that a juvenile court was authorized to grant a newspaper’s request for access to records from a child-in-need-of-services proceeding that was pending at the time of the death of a 3-year-old child who was allegedly neglected and murdered by her mother and mother’s boyfriend. In that case, the death of the child was a matter “of the keenest public interest,” and the newspaper had a legitimate interest in informing the public of the facts surrounding the death of a child while in the care of her mother just hours before a scheduled court hearing, the court found. Access to records from a child-in-need-of-services proceeding that was closed after the child was reunified with her mother, a procedure whereby child services departments provide appropriate services in an attempt to return to the family a child who has been removed, also was granted because the child’s prior involvement in the child-welfare system was undoubtedly of public interest and importance. The paper also was granted access to records held by state and local child services departments because the mother did not contest that the child’s death was anything other than a result of abuse, abandonment or neglect. But the court was not authorized to grant the paper’s request for access to a transcript of a review hearing, a periodic proceeding in which the court evaluates the case plan of a child under child services supervision and determines whether return to the family is appropriate, because the public had been excluded from the hearing; nor could the court disclose records in two delinquency proceedings involving the mother since her alleged neglect and murder of the child were not the bases for the delinquency allegations. In re T.B., 895 N.E.2d 321 (Ind. Ct. App. 2008).

In addition, in cases where a child’s death or near death may have been the result of abuse, abandonment or neglect, redacted records in the possession of various state and local agencies regarding the child may be disclosed to any person who requests the record, although that person may be required to pay the reasonable expenses of copying the record. Id. § 31-33-18-1.5. Also in such cases, the agencies may disclose for research purposes general information such as the incidents of reported child abuse or neglect or other statistical data if the information is not the subject of pending litigation and does not identify the people involved. Id. § 31-33-18-3.

Restrictions on coverage: Indiana law allows victims and witnesses 13 years old or younger and those who are mentally ill, impaired or disabled regardless of age to testify about sexual and other offenses designated by statute outside the presence of the defendant via video-recorded testimony or closed-circuit television. The statute does not specify whether the media and public may remain in the courtroom when this testimony is broadcast there. Id. §§ 35-37-4-6, 35-37-4-8.