K. J. P. v. StateK. J. P. v. State
OPINION
K.J.P. аppeals the trial court’s order directing him to register as a sex offender. He presents two restated issues:
1. Was the juvenile court’s determination that K. J.P. is required to register as a sex offender premature and in conflict with the rehabilitative goals of the juvenile code, where K.J.P. had not completed a court-ordered counseling program at the time of the hearing and determination?
2. Is the order requiring K.J.P. to register as a sex offender supported by clear and convincing evidence that he is likely to repeat a sex offense?
We affirm.
In September 1998, the State filed a petition alleging that K.J.P. committed acts that, if committed by an adult, would be Attempted Criminal Deviate Conduct,
The dispositional decreе was based, inter alia, upon KJ.P.’s “successful completion of the SAFTIP Counseling Program, including attending all sessions and completing all recommendations as well as successful completion of the treatment contraсt and family treatment contract filed with the Court by SAFTIP.... ” Record at 27. The dispositional decree noted that the court would appoint a psychologist and schedule a hearing to determine whether K.J.P. was likely to commit repeat sex offenses requiring his placement on the Sex Offender Registry (the Registry). See
Two psychologists and a SAFTIP counselor testified at the hearing. The juvenile court concluded that K.J.P. met the definition of an offender.
1.
K.J.P. complains that the juvenile court erred by prematurely ordering him to register as a sex offender before he comрleted the court-ordered counseling program. K.J.P. alleges that the juvenile court erred because the rehabilitative goals of the juvenile code are not served by determining his status as a sex offender and requiring him to register before he could complete the counseling.
The Sex Offender Registration Act (the Act) requires an “offender” to register with local law enforcement authorities in the area where the offender residеs. IC § 5-2-12-5. In pertinent part, an “offender” is defined as:
a child who:
(A) is at least fourteen (14) years of age;
(B) is on probation, is on parole, or is discharged from a facility by the department of correction as a result of an adjudication as a delinquent child for an act thаt would be an offense described in subdivision (1) or (2) [including criminal deviate conduct and sexual battery] if committed by an adult; and
(C)is found by a court by clear and convincing evidence to be likely to repeat an act that would bе an offense described in subdivision (1) or (2) if committed by an adult;
IC § 5-2-12-4(3).
The statute requires the juvenile court to hold an evidentiary hearing to determine, by clear and convincing evidence, whether the juvenile is likely to be a repeat sex offender. In re G.B.,
The legislature did not provide for postponement of the determination based upon counseling. The legislature specifically provided that a child adjudicated a delinquent could be ordered to attend counseling. See IC
K.J.P. argues that requiring him to register before he has completed counseling conflicts with the rehabilitative goals of the juvenile code. It is true that the State is primarily interested in thе rehabilitation, rather than the punishment, of juvenile delinquents. In re G.B.,
Alternatively, K.J.P. argues that if he must registеr, the period for registration should be limited to the duration of his probation. K.J.P. argues that the trial court erroneously ordered his registration for the ten-year period required for “offenders”. IC § 5-2-12-13(a) provides:
Except as рrovided in subsection (b), an offender’s duty to register expires ten (10) years after the date the offender is released from prison or any other facility operated by the department of correction, placed on parole, or placed on probation, whichever occurs last.
The statute does not distinguish between juvenile and adult offenders. The ten-year registration period commences at the time an offendеr is placed on probation. The court correctly noted that KJ.P’s duty to register would expire ten years after he was placed on probation.
2.
K.J.P. contends that the order requiring him to register as a sex offender is nоt supported by clear and convincing evidence that he is likely to be a repeat sex offender.
The clear and convincing evidence standard requires a stricter degree of proof than a mere preponderance of the evidence. Estate of Reasor v. Putnam County,
In ordinary civil actions a fact in issue is ... sufficiently proved by a preponderance of evidence. However, clear*616 and convincing proof is a standard frequently imposed in civil cases where the wisdom of experience has demonstrated the need for greater certainty, and where this high standard is required to sustain claims which have serious social consequences or harsh or far reaching effects on individuals to prove willful, wrongful and unlawful acts to justify an exceptional judicial remedy....
Id. at 159-60 (quoting Travelers Indem. Co. v. Armstrong,
Two psychologists and a SAFTIP counselor testified at the hearing. All of the expert witnesses interviewed K.J.P. and had access to materials from which they could render an opinion whether K.J.P. was likely to repeat a sex offense. Dr. Andrea Weiland opined that K.J.P. was at substantial risk for being a repeat offender. She believed thаt K.J.P. should be placed on the Registry. Dr. Laura Cowan testified that “if the opportunity presented itself he would be at high risk of taking advantage of that opportunity” to commit another offense. Record at 266. The SAFTIP counselor testified that the SAF-TIP staff would prefer that K.J.P. not be placed on the Registry because of the possible impact on his motivation to continue treatment. The counselor also stated, “the need to protect the community аnd have him listed is important.” Record at 255. She noted that if K.J.P. was unsupervised and young children were present “he could possibly re-offend.” Record at 262. The most telling portion of her testimony was, “[h]e has to be supervised not to re-offend.” Record at 262.
The juvenile court’s finding is supported by clear and convincing evidence that K.J.P. is likely to repeat a sex offense. Judgment affirmed.
Notes
.
. IC
. IC § 35-42-4-8.
. The juvenile court makes some references to the "sexually violent predator” statute,
. We note a discrepancy between the reference to the subsection for juvenile offenders in the statute that lists additional dispositional decrees and the subsection that dеfines juvenile offenders. IC
First, the еrror does not affect the requirement that offenders register. IC § 5-2-12-4(3) defines juvenile offenders, and IC § 5-2-12-5 requires offenders to register. Second, statutes are construed such that "legislative intent will prevail over the literal import of the words.” FGS Enterprises, Inc. v. Shimala,
. It is apparent that the registration period expires in ten years even if the court had not so stated, or if the court had considered a different period. The statute is not discretionary.