author: DAVID, Justice. MASSA, Justice,

text:
    Gerald P. VanPATTEN, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
    No. 02S03-1205-CR-251.
    Supreme Court of Indiana.
    May 2, 2013.

      P. Stephen Miller, Fort Wayne, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Angela N. Sanchez, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   DAVID, Justice.

When a competent adult patient visits a doctor and provides the physician with a medical history intending to aid in then-diagnosis or treatment, we presume those statements are made truthfully because adults know that lying to one’s doctor risks misdiagnosis or mistreatment. Accordingly, the Rules of Evidence generally allow medical professionals to provide substantive testimony as to the statements then-patients make in the course of providing their medical history — even though that testimony would ordinarily be excluded as hearsay. When the patient is a young child, however, it is not so easy to assume that he or she recognized the merit of providing a nurse or doctor with truthful information. Because of this, we require a more robust evidentiary foundation be laid before the same type of hearsay testimony is seen as reliable enough to be admitted.

Here, a defendant was convicted on two counts of child molestation and the only substantive evidence implicating him in those crimes was a forensic nurse examiner who testified about statements made by the alleged victim — a six-year-old child who, at the time of trial, had recanted. Based on our review of the trial record, however, there was an insufficient showing that the child victim in this case was motivated to provide truthful information to her nurse. Because of this, the nurse’s testimony should not have been admitted as substantive evidence against the defendant and we therefore vacate his convictions with respect to those two counts of child molestation.

Facts and Procedural History

Gerald VanPatten is the biological father of S.D. During the summer of 2009, S.D.’s close friend, E.R., would often spend the night at S.D.’s house. The two girls, then around six years old, would sleep in the same bed. One morning in August of that summer, after a similar sleep-over, E.R. and S.D. told S.D.’s mother that VanPat-ten had molested them. E.R. ran back to her home and S.D.’s mother contacted her pediatrician, who directed her to the Department of Child Services.

S.D.’s mother took S.D. to a DCS office to be interviewed by a caseworker. DCS also contacted E.R.’s family and requested that E.R. be brought in for an interview as well. During the course of the interviews (which were videotaped), both girls stated that VanPatten had molested them — E.R. the previous evening and S.D. on prior occasions.

Both girls were then taken to the Fort Wayne Sexual Assault Treatment Center where they were examined by Joyce Moss, a forensic nurse examiner. Moss collected several biological samples from E.R. but not from S.D., because S.D. had allegedly been molested outside the window of time where such samples would still be viable. Neither girl showed any signs of physical injury.

On November 17, 2009, the State charged VanPatten with three counts of class A felony child molesting and one count of class C felony child molesting. Two of the class A felony counts, Counts I and II, related to S.D., and one, Count III, related to E.R. Count IV, the class C felony count, related to S.D.

VanPatten hired counsel to represent him, but on December 13, 2010 — five weeks before his trial date — VanPatten mailed a letter to the trial judge requesting a hearing in order to fire those attorneys in open court. In response, his attorneys filed a motion to withdraw, citing a breakdown in the attorney-client relationship that precluded any further representation. The trial court denied their motion to withdraw after a hearing on January 10, 2011.

At trial, E.R. testified in a manner generally consistent with the interviews she gave to DCS and Moss, alleging that Van-Patten molested her on multiple occasions while she was spending the night with S.D. She also initially testified, on both direct and cross-examination, that she had never seen VanPatten molest anyone else. But later on cross-examination she testified that sometimes VanPatten’s actions woke S.D. up, and when that happened “[h]e would do it to her.” (Tr. at 212.)

S.D., however, recanted her previous allegations. She testified that she could not remember ever telling anyone that Van-Patten did bad things to her, nor could she remember talking to E.R. about it. She remembered being interviewed by DCS, and had watched the videotape of the interview, but now claimed that what she said there was not true. She explicitly denied that VanPatten ever touched her “in a bad way or in a way that made [her] feel uncomfortable.” (Tr. at 251.) The State sought to admit the videotape of the DCS interview to either refresh her memory or, barring that, as substantive evidence of VanPatten’s conduct. VanPatten objected, and after discussion the trial court excluded the videotape.

The State then called Moss to testify as to what E.R. and S.D. told her during their forensic examinations, seeking to apply the hearsay exception found in Indiana Rule of Evidence 803(4) for statements made for the purpose of medical diagnosis or treatment. VanPatten objected, arguing that there was an insufficient foundation to support the use of the exception. The trial court overruled his objection and allowed Moss’s testimony as substantive evidence.

On the stand, Moss referred to a written medical report summarizing the patient histories that she collected from the two girls, but she had no independent recollection of the specific interactions between herself and S.D. or E.R. With respect to S.D., Moss testified that her report said “[pjatient states he put his private on my private, on the inside. He put his mouth on my private and he put his finger in my private. Patient states white stuff came out of his private.” (Tr. at 349.) The report did not identify the alleged perpetrator.

To impeach S.D.’s testimony that Van-Patten had never molested her, the State called Danielle Goewert, the DCS employee who initially interviewed E.R. and S.D. VanPatten objected. The trial court permitted Goewert’s testimony, though admonishing the jury that it was to be considered only for the purposes of assessing S.D.’s credibility — not as substantive proof of the crime. Goewert testified that in her interview, S.D. said she had been molested by VanPatten and explicitly described acts similar in nature to those presented in Moss’s patient history.

At the conclusion of the State’s case in chief, VanPatten moved for judgment on the evidence with respect to the counts arising out of S.D.’s allegations. He argued that even with Moss’s testimony, there was no substantive evidence identifying him as the perpetrator with respect to S.D. While Goewert testified that S.D. had identified VanPatten, that testimony was solely for impeachment purposes — and all of the biological evidence was collected from E.R., not S.D. The trial court denied his motion, finding a nexus between testimony from S.D.’s mother — that she did not want S.D. around VanPatten after E.R. and S.D. told her they had been molested — and Moss’s testimony as to the patient history provided her by S.D.

The jury acquitted VanPatten of Count I, but convicted him of the remaining three charges. He received a sentence of forty years on each of the remaining class A felony counts, to be served consecutively, and a four-year sentence, on the class C felony count, to be served concurrent to the second class A felony sentence.

VanPatten appealed the denial of his attorneys’ motion to withdraw. He also appealed the admission of Moss’s testimony, claiming it was improperly admitted under Indiana Evidence Rule 803(4), and claimed there was insufficient evidence to sustain his convictions for Counts II and IV. A divided panel of the Court of Appeals affirmed in an unpublished memorandum decision. VanPatten v. State, 2012 WL 456483 (Ind.Ct.App. Feb. 14, 2012).

All three judges concurred that the trial court was within his discretion to deny the motion to withdraw filed by VanPatten’s attorneys, and did not do so arbitrarily or unreasonably. Id. at *3-4. The majority also affirmed VanPatten’s convictions for molesting S.D., finding that Moss’s testimony was properly admitted under Rule 803(4) and that there was sufficient evidence of his guilt. Id. at *6-7.

Judge Baker dissented with respect to Moss’s testimony, believing it was not sufficiently reliable to be admissible and that without it the substantive evidence was insufficient to affirm VanPatten’s convictions. Id. at *7-8 (Baker, J., concurring in part and dissenting in part). We granted transfer, thereby vacating the decision of the Court of Appeals. VanPatten v. State, 967 N.E.2d 1034 (Ind.2012) (table); Ind. Appellate Rule 58(A).

Given the facts and circumstances of this particular case reflected in the record on appeal, we agree with the Court of Appeals that Judge Surbeck was within his discretion to deny VanPatten’s attorneys’ motion to withdraw and that he did not act arbitrarily or unreasonably to the extent VanPatten implies a denial of his right to fire the lawyers he hired. Accordingly, we summarily affirm that portion of the Court of Appeals opinion, Ind. Appellate Rule 58(A)(2), and write here only on whether Moss’s testimony was properly admitted and the impact of that determination on his convictions.

Standard of Review

The decision to admit or exclude evidence at trial is squarely within a trial court’s discretion and we afford it great deference on appeal. Carpenter v. State, 786 N.E.2d 696, 702 (Ind.2003). We will not reverse such a decision, often made in the context of heated testimony and argument, unless it is clearly contrary to the logic and effect of the facts and circumstances of the case or misinterprets the law. Id. at 703.

I. Admission of Moss’s Testimony

A hearsay statement is one “other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Ind. Evidence Rule 801(c). Hearsay statements are not admissible, except pursuant to certain exceptions within the Rules of Evidence. Ind. Evidence Rule 802.

One such exception generally permits statements made for the purpose of medical diagnosis or treatment to be admitted into evidence, even when the declarant is available. Ind. Evidence Rule 803(4). The statements must be “made by persons who are seeking medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.” Id. Rule 803(4)’s exception is grounded in a belief that the de-clarant’s self-interest in obtaining proper medical treatment makes such a statement reliable enough for admission at trial— more simply put, Rule 803(4) reflects the idea that people are unlikely to lie to their doctors because doing so might jeopardize their opportunity to be made well. See White v. Illinois, 502 U.S. 346, 356, 112 S.Ct. 736, 116 L.Ed.2d 848 (1992) (“a statement made in the course of procuring medical services, where the declarant knows that a false statement may cause misdiagnosis or mistreatment, carries special guarantees of credibility”).

This belief of reliability, though, necessitates a two-step analysis for admission under Rule 803(4): First, “is the de-clarant motivated to provide truthful information in order to promote diagnosis and treatment,” and second, “is the content of the statement such that an expert in the field would reasonably rely on it in rendering diagnosis or treatment.” McClain v. State, 675 N.E.2d 329, 331 (Ind.1996). Statements made by victims of sexual assault or molestation about the nature of the assault or abuse — even those identifying the perpetrator — generally satisfy the second prong of the analysis because they assist medical providers in recommending potential treatment for sexually transmitted disease, pregnancy testing, psychological counseling, and discharge instructions. See Palilonis v. State, 970 N.E.2d 713, 726-27 (Ind.Ct.App.2012), trans. denied.

The first prong of the test, the declarant’s motive to promote treatment or diagnosis, is equally crucial to a determination of reliability. McClain, 675 N.E.2d at 331. “[T]he declarant must subjectively believe that he was making the statement for the purpose of receiving medical diagnosis or treatment.” Id. With most declar-ants, this is generally a simple matter: “[o]ften, for example where a patient consults with a physician, the declarant’s desire to seek and receive treatment may be inferred from the circumstances.” Id.

But in cases like the one here, where the declarant is a young child brought to the medical provider by a parent, we have acknowledged that such an inference may be less than obvious. See id. Such young children may not understand the nature of the examination, the function of the examiner, and may not necessarily make the necessary link between truthful responses and accurate medical treatment. In that circumstance, “there must be evidence that the declarant understood the professional’s role in order to trigger the motivation to provide truthful information.” Id. (citing U.S. v. Barrett, 8 F.3d 1296, 1300 (8th Cir.1993)). This evidence does not necessarily require testimony from the child-declarant; it may be received in the form of foundational testimony from the medical professional detailing the interaction between him or her and the declarant, how he or she explained his role to the declarant, and an affirmation that the declarant understood that role. Barrett, 8 F.3d at 1300. But whatever its source, this foundation must be present and sufficient.

Appellate review of this issue is necessarily case-specific and turns on the facts and circumstances of each case as they are reflected in its record. In McClain, for example, where a family therapist provided hearsay testimony under Rule 803(4) that a patient told her he had been molested, we held that this “requisite indicia of reliability” was missing. McClain, 675 N.E.2d at 331. “There [was] no evidence that the victim sought the therapist’s help or that he believed he was receiving any treatment.” Id. The declarant testified only that he knew his family therapist “was his ‘counselor’ and that he talked to her about what McClain did to him.” Id. “Thus, the record [was] devoid of any evidence showing that the victim understood he was speaking to a trained professional for the purposes of obtaining diagnosis of, or providing treatment for, emotional or psychological injuries.” Id.

And in Cooper v. State, 714 N.E.2d 689 (Ind.Ct.App.1999), trans denied, a registered nurse provided hearsay testimony in the form of statements made to her by a child victim of sexual molestation during the course of a physical examination. Id. at 690. The Court of Appeals affirmed the admission of the testimony. Id. at 691. When assessing whether the first prong of the McClain test was satisfied, the court reviewed the foundational testimony provided by the nurse with respect to the interaction she has with children prior to those sorts of examinations — and the specific interaction she had with the child victim in that case. Id. at 692-694. A few critical items of that testimony stood out to the court.

With respect to the nurse’s standard procedure, she testified that “we introduce ourselves to the child ... and have the child get to know us.” Id. at 692. “After you do the initial trying to get to know the child ... generally I’ll just take my time ... just let them know who I am and who the doctor is ... and then I’ll start addressing the child, ask them if they know why they’re in the emergency room.” Id. The State specifically asked the nurse “When you’re dealing with the child, you tell them who you are and what your job is?” Id. The nurse responded that “I usually tell them my name is Kim and I’ll be their nurse and I’ll be with them the whole time ... [l]et them know what they are going to expect, what the doctor is going to do, and that it’s okay for the doctor and nurse to take a look at them.” Id.

With respect to the victim in Cooper, the nurse testified that she followed that same procedure, and that she let the victim know that “[h]er mom brought her in because of something, and if she’s going to tell me what that something is when she feels comfortable to talk to me about it.” Id. at 693. She said “I asked her if she knew why she was there in the emergency room, and I believe she thought she was going to get an exam. She needed to get examined, but she didn’t know why.” Id. at 694. Only after that introduction was made did the victim make substantive statements to the nurse as to the nature of the molestation and the perpetrator. Id.

Taken together, the court in Cooper held that the testimony provided a proper foundation for the admission of the nurse’s testimony under Rule 803(4). The victim “knew that she was in the emergency room for an examination by a physician because of the molestation by Cooper. [She] sufficiently understood the professional role of both the nurse and the doctor who examined her, thus triggering the motivation to provide truthful information.” Id. at 694.

Later, in In re W.B., 772 N.E.2d 522 (Ind.Ct.App.2002), two parents appealed the termination of their parental rights with respect to their two young children. Id. at 524. A factor in the termination decision was a finding by the trial court that the children were subjected to sexual and physical abuse by the parents — a finding based entirely on hearsay testimony provided by a therapist who relayed statements made to her by the children. Id. at 532. The Court of Appeals found that the testimony failed the first prong of the McClain test because the record was “devoid of any evidence ... that the children, in making these statements, were ‘motivated to provide truthful information in order to promote diagnosis and treatment.’ ” Id. at 533 (quoting McClain, 675 N.E.2d at 331). The court did not go into as much detail regarding the foundational testimony, but highlighted that it “clearly portrayed the young children as mentally and emotionally incompetent, and no doubt totally unaware of [the therapist’s] professional purpose.” Id.

Finally, in In re Paternity of H.R.M., 864 N.E.2d 442 (Ind.Ct.App.2007), a father appealed a modification of his visitation rights that was based largely on hearsay testimony of sexual abuse provided by a clinical social worker. Id. at 444-45. The Court of Appeals reviewed the analysis in McClain, W.B., and Cooper, and by comparison found that “the record contain[ed] no indication that H.R.M. had the requisite motivation to tell the truth, as no evidence indicates that she knew [the social worker’s] role or that she was being interviewed for the purpose of medical diagnosis.” Id. at 447.

Though the social worker testified that the purpose of the interview was to assist the child with certain issues and formulate an individualized treatment plan, there was no evidence that the child knew she was there for that purpose. Id. And unlike in Cooper, the social worker’s testimony “did not indicate that she explained to H.R.M. the purpose of the interview, or that H.R.M. knew she was at the interview to facilitate medical diagnosis and treatment.” Id. Accordingly, the Court of Appeals found that the social worker’s testimony failed the first prong of the McClain test and was therefore improperly admitted. Id.

With that spectrum in mind, we look to the record at trial here to answer whether it reflects a sufficient foundation for Moss’s testimony. First, Moss testified as to her usual procedure for introducing herself to patients:

Q: How do you introduce yourself to children who are going to be examined? Do you have a procedure that you try to use all the time?
A: I do. I usually introduce myself as Joyce, and I’m a nurse, just like the nurses at your doctor’s office. It’s my job to make sure that you’re okay.
Q: Okay. So you ask general health issues and you also talk to them about why you’re there to see them and provide treatment to them.
A: Yes.
Q: And is that standard procedure in every child or patient you see?
A: Yes it is.
Q: Did you do all these procedures, would you have done all the same procedures with [E.R.]?
A: Yes.
Q: During the history portion of [E.R.] did you specifically ask her questions related to why you were going to be conducting your examination?
A: Yes.

(Tr. at 322-24.) At that point, the prosecutor asked Moss to relay the patient history provided to her by E.R., and VanPat-ten objected. (Tr. at 324.) VanPatten’s counsel was permitted to ask a few preliminary questions:

Q: Good afternoon, just briefly, you told Ms. Speith what you generally tell children. Do you remember exactly what you told [E.R.] when she came in?
A: I would have asked her if she knew why she was there.
Q: Okay. Now you remember me taking your deposition last October, right?
A: Yes.
Q: Do you remember telling me at that time that you didn’t have any independent recollection of your interview with [E.R.] or [S.D.] other than what’s in your report? Do you need me to repeat that question?
A: Yes.
Q: I asked you at the deposition if you had any independent recollection of your interviews with either [E.R.] or [S.D.]. Remember me asking you that question?
A: Yes.
Q: And you told me no, you did not. That other than what’s in your report you have no independent recollection. Remember saying that?
A: Yes.
Q: Okay. And it’s true that your conversation upon meeting [E.R.] is not in your report, correct?
A: That is correct.
Q: So are you speaking in generalities, in other words, it’s your habit to say these things to a child or are you specifically now, five months later, three months later, all of a sudden you remember exactly what you told [E.R.]?
A: It is habit.
Q: So you don’t know for sure what you told [E.R.]?
A: Correct.
Q: Okay. And I think you said earlier that you would have told her, typically what you say, my job is to see that you’re okay.
A: Correct.
Q: Do you remember telling either [E.R.] or [S.D.] specifically, I’m going to ask you some questions and it’s important for you to tell me the truth because I’m going to provide you medical care?
A: I would not have said that to them.

(Tr. at 325-27.) VanPatten reiterated his objection to Moss’s substantive testimony, arguing that there was an insufficient foundation of reliability with respect to the evidence of E.R. and S.D.’s motivation to be truthful. That State responded that “[wje’ve all been to doctors, we’ve all been to hospitals and we talk to every physician or nurse who’s ever treated us, when they ask us why we’re there for, never says that it’s important to be truthful because we’re going to be providing you medical treatment based on what you say.” (Tr. at 328.) “She’s at a medical facility, it looks like a medical facility, she’s dressed as a nurse, it’s a six year old child who clearly understands doctors office (inaudible word).” (Tr. at 328.) The trial court overruled VanPatten’s objection.

Later, Moss testified as to her interview with S.D.:

Q: Okay. So the first time you met [S.D.] is when she came to your office and do you recall approximately what time she got to your office?
A: May I refer to my notes?
Q: Sure.
A: She arrived right at about 8:40 p.m.
Q: And did she come alone or with somebody else?
A: She came with her mother.
Q: Did you follow the same procedure with [S.D.] that you did with [E.R.] as far as introducing yourself?
A: Yes I did.
Q: Are you still wearing scrubs?
A: Yes.
Q: The same or different scrubs?
A: The same.
Q: Are you still in the same medical office building or medical building?
A: Yes.
Q: Okay. So you introduce yourself to [S.D.], correct?
A: Yes.
Q: Then what happened after you introduced yourself to [S.D.]?
A: I would have then collected a medical history as well as had the consent signed.
Q: Okay. And her mother signed consent authorizing an examination, is that correct?
A: Yes, that is correct.
Q: Okay. And then is that when you take the child back to the room without their parents.
A: Correct.
Q: When you got [S.D.], was she also six?
A: Yes.
Q: When you got [S.D.] back into the examination room, did you then talk to her about, did you get a continuing medical history from her so that you knew what had happened?
A: Yes I did.
Q: And did you get the statement from [S.D.] herself?
A: Yes I did.
Q: What did [S.D.] tell you about what had happened and why she was there for a medical exam?

(Tr. at 344-46.) VanPatten objected again, and was again permitted to ask a few preliminary questions:

Q: Ms. Moss, again, without trying to be too redundant, but again, no independent recollection outside of what is in your report as to this specific interview with [S.D.]?
A: Correct.
Q: Okay. And you don’t remember exactly what you told her prior to interviewing her?
A: No.
Q: Other than what you normally tell children.
A: Correct.

(Tr. at 347.) VanPatten renewed his hearsay objection, and the trial court again overruled it.

VanPatten highlights that Moss had no specific memory of what she said to S.D. and E.R. prior to interviewing them, and that there was no testimony to establish either girl knew what telling the truth meant, much less the importance of telling the truth in a medical examination, (Appellant’s Br. at 20-21.) The State argues as it did at trial: that this record here is similar to Cooper, and points to the examination taking place in a building that looked like a medical clinic, equipped with an exam table and equipment like a doctor’s office, and that Moss was wearing scrubs and introduced herself as a nurse whose job it was to make sure that the girls were okay. (Appellee’s Br. at 15.)

Were S.D. and E.R. older, certainly the State is correct that the appearance of the building, the exam room, and Moss’s scrubs and job title would probably be sufficient circumstances from which to infer that the two girls desired to seek medical treatment and were thus motivated to speak truthfully. But as we said in McClain, with young victims, “that inference is not obvious,” and “there must be evidence that the declarant understood the professional’s role in order to trigger the motivation to provide truthful information.” McClain, 675 N.E.2d at 331. In fact, as the witness in Cooper testified, these “obvious” signs may sometimes be an impediment to a motivation to tell the truth because “[m]ost kids even though you try and set them at ease, they still think they did something wrong or that because they’re in [the emergency room] they are going to get a shot, just get scared.” Cooper, 714 N.E.2d at 693-94.

In fact, the precise point of McClain is that courts cannot simply assume that what is obvious to a competent adult — that they are in a medical facility seeking medical treatment from a medical professional — is obvious to a child. As VanPatten’s counsel argued at trial in support of his objection, “the distinguishing feature here is we’re dealing with a six year old child, that the. six year old child doesn’t comprehend the same way that adults do. We as adults of course know that it’s important for a medical professional to know the truth. I don’t think you can make that assumption when dealing with a six year old child.” (Tr. at 329.)

Instead, the question before us is whether the record reflects that the child adequately understood the role of the medical professional and the purpose of the visit in order for us to infer that the child was motivated to speak truthfully. And in that regard, we find this case farther from Cooper’s clarity than the State suggests.

As we read it, the collective impression left from the testimony at trial is murky at best, beginning with the purpose of the examination. The girls were examined by Moss only after being extensively interviewed at DCS, muddying the issue of whether the underlying motivation even from their parents was to seek medical treatment for their children or to assist the police in their investigation. And Moss admitted that she observed the DCS interview before she met the girls, raising the concern that her questioning may have steered the answers to support the allegations brought up in the interview. This is a concern we cannot fully dismiss based on the trial record.

Furthermore, there is no testimony from E.R. or S.D. that either understood Moss’s professional role, or the role of nurses or doctors in general. Nor is there testimony from either girl, or their parents, concerning past experience with medical facilities or medical providers from which we could reasonably infer that the girl knew why she was being examined at the Fort Wayne Sexual Assault Center.

In fact, the only statements relevant to the first prong of the McClain test are Moss’s statement that she tells children “[fit’s my job to make sure that you’re okay,” and her affirmative response to the question “[s]o you ask general health issues and you also talk to them about why you’re there to see them and provide treatment to them?” And even though Moss testified that she goes through this same procedure with every child, her subsequent testimony that she has no actual recollection of her conversations with E.R. and S.D. — and also that those conversations were not recorded or summarized in the report she used to refresh her memory— undercuts our ability to infer that E.R. and S.D. were motivated to respond truthfully to her questions because they understood her professional role.

Nor can we draw this inference just from the fact that Moss had performed well over a hundred such forensic examinations on children, because every child will be different at that age. While this background certainly lends support to her assertion that her interaction with E.R. and S.D. occurred in a similar fashion, it does not necessarily indicate that these particular children, in these particular examinations, understood the nature of the process. Each child is different, and it would be no more appropriate to treat them all the same with respect to this inference than it would be to treat them the same as we treat adults.

We do not intend for this evidentiary foundation to present an insurmountable hurdle, nor do we seek to dictate trial testimony. But here, for example, a few simple questions asked of E.R. and S.D. would have helped: “Have you been to a doctor’s office before?” “Have you been seen by a nurse before?” “Do you know what nurses do?” “What do they do?” “Do you know the difference between the truth and a lie?” “Do you tell nurses and doctors the truth?” “Do you know why you tell the nurses and doctors the truth?” “Did you know why you were seeing Nurse Moss?” Firm responses to questions like these would go a long way in supporting the inference that E.R. and S.D. were motivated to tell Moss the truth when she examined them.

Likewise, a few more directed questions for Moss would have been helpful (although given her lack of precise knowledge about her interactions with E.R. and S.D., we concede that these would have been difficult in this particular case): “Did you explain the purpose of the examination to the girls?” “How so?” “Did you ask if they understood the purpose of the examination?” “Did you ask if they had been seen by a nurse before?” “Did you explain how important it was that they tell you the truth?” “How did they respond?” These sorts of questions — and solid responses— reflected in the record would certainly help a reviewing court confirm that the hearsay testimony sought to be admitted was sufficiently reliable.

Along those same lines, a few simple questions asked of E.R. and S.D. — or their parents — could have clarified the purpose of the visit in the first place. “Why were you seeing Nurse Moss?” “Did the police ask you to take your daughter to the Sexual Assault Treatment Center?” “Why did you take your daughter there?” “Why not take her to a hospital before taking her to DCS?” This sort of evidentiary foundation would certainly ameliorate our concern that the visit was intended to obtain evidence as part of a law enforcement investigation.

But no such foundation is here in this record. The testimony does not tell us at all what Moss said to E.R. and S.D., how they responded, and whether they understood what was going on. And in fact, Moss expressly said that she would not have explained to the girls how important it is that they tell her the truth. Simply put, there is no “evidence that the declarant understood the professional’s role in order to trigger the motivation to provide truthful information.” McClain, 675 N.E.2d at 331. This is not to say that Moss did not necessarily discuss these things with S.D. and E.R., or that her work as a sexual assault examiner was somehow deficient. But without that firm indication of reliability in the record, we have no choice on appellate review but to conclude that the statements made to her by S.D. and E.R. should not have been admitted under the hearsay exception found in Indiana Rule of Evidence 803(4), and it was an abuse of the trial court’s discretion to do so.

II. Impact of Moss’s Testimony

That Moss’s testimony was improperly admitted does not end the matter, though. “[E]rrors in the admission of evidence are to be disregarded as harmless error unless they affect the substantial rights of a party.” McClain, 675 N.E.2d at 331; see also Ind. Trial Rule 61. “In determining whether error in the introduction of evidence affected the defendant’s substantial rights, this Court must assess the probable impact of the evidence upon the jury.” McClain, 675 N.E.2d at 331. “Admission of hearsay evidence is not grounds for reversal where it is merely cumulative of other evidence admitted.” Id. at 331-32.

VanPatten does not challenge the admission of this testimony with respect to E.R.’s out-of-court statements, or its impact on those criminal charges — nor could he. E.R. testified at trial in a way that mirrored the hearsay testimony later provided by Moss, making Moss’s testimony merely cumulative and at most harmless error. Cf. id. at 331 (“In the present case, the child victim testified at trial, and was subject to cross-examination, regarding the acts of molestation and the surrounding circumstances of the incident. Thus, the declarant’s statements as reported by the therapist, insofar as they bore on guilt or innocence or the declarant’s apprehension of the defendant, merely repeated the declarant’s statements made on the stand.”) Thus, the error is not grounds for reversal with respect to VanPatten’s conviction on that count.

The same cannot be said for Moss’s testimony relaying S.D.’s statements. Given that S.D. recanted her allegations on the stand, the only substantive testimony as. to VanPatten’s guilt with respect to those particular- charges was Moss’s testimony. Though Goewert provided similar testimony, it was solely for impeachment purposes and could not be used as substantive evidence of VanPat-ten’s guilt. No biological samples were collected from S.D. that might otherwise link VanPatten to her. And although E.R. did say that when VanPatten molested her, it would sometimes wake S.D. up, and then “he would do it to her,” that statement was elicited on cross-examination — after she repeatedly testified at trial that she never saw VanPatten molest anyone else.

Accordingly, we are left with but one conclusion: the probable impact of Moss’s testimony on the jury — indeed the only conceivable impact — was to convince the jury of VanPatten’s guilt. Nothing else could have done so. We therefore must vacate VanPatten’s convictions for molesting S.D.

Without Moss’s testimony, the evidence against VanPatten was insufficient to sustain his convictions for molesting S.D. However, the insufficiency only exists because of appellate exclusion, and Double Jeopardy considerations do not bar retrial on those same charges. See Lockhart v. Nelson, 488 U.S. 33, 38-42, 109 S.Ct. 285, 102 L.Ed.2d 265 (1988); accord Irons v. State, 272 Ind. 287, 290-91, 397 N.E.2d 603, 605-06 (1979); Mulry v. State, 399 N.E.2d 413, 418-19 (Ind.Ct.App.1980).

Conclusion

We therefore reverse and remand for a new trial on Counts II and IV.

DICKSON, C.J., and RUCKER, J., concur.

MASSA, J., concurs in result with separate opinion in which RUSH, J., concurs.

MASSA, Justice,

concurring in result.

Although I agree with the majority’s analysis of S.D.’s statements to Moss under our Rules of Evidence, I write separately because I believe the admissibility of such evidence can and should be evaluated pursuant to the Protected Person Statute, Indiana Code § 35-37-4-6 (2008 & Supp.2012), not Rule 803(4). Child victim hearsay presents a unique evidentiary problem in prosecutions for abuse and molestation. In cases where the child is unavailable to testify, these statements are frequently the strongest evidence of a defendant’s guilt. Deborah Paruch, Silencing the Victims in Child Sexual Abuse Prosecutions: The Confrontation Clause and Children’s Hearsay Statements Before and After Michigan v. Bryant, 28 Touro L.Rev. 85, 114-15 (2012). Even when the child does testify, the hearsay statements — made soon after the offense was committed, while it was still a fresh memory — are often more detailed and thus more convincing than live testimony. Id.

Under traditional hearsay rules, these statements are often inadmissible. However, in light of challenges unique to the prosecution of adults who prey on the most vulnerable, courts and legislatures have generally agreed that certain out-of-court statements should be admitted if they are sufficiently reliable. See Michael H. Graham, The Confrontation Clause, the Hearsay Rule, and Child Sexual Abuse Prosecutions: The State of the Relationship, 72 Minn. L.Rev. 523, 529 (1988). To that end, thirty-two states, including Indiana, have child hearsay statutes that apply only in prosecutions for certain serious offenses and only to statements describing the charged offense that are not otherwise admissible. These statutes vary somewhat in their operation; some apply only to out-of-court statements made by the child victim of the charged offense, but others apply to child witnesses as well as victims. They frequently require the court to evaluate the reliability of the hearsay in a hearing on the record before ruling on its admissibility. Some'require the declarant to testify, but others permit the hearsay to be admitted even if the declarant is found unavailable, so long as there is evidence to corroborate the hearsay, and a few apply only when the declarant does not testify. Only a few have been found constitutionally infirm, and several have been challenged and upheld.

Some states admit these statements under Rule 803(4) or pursuant to a residual exception like that contained in Federal Rule of Evidence 807. In Indiana, we have no residual exception, so the latter option is not available to us, and because we have the Protected Person Statute, we need not avail ourselves of the former.

The Protected Person Statute applies to certain types of criminal offenses, including the sex crimes VanPatten was charged with here. Ind.Code § 35-37-4-6(a)(l). S.D. is a “protected person” as defined by the statute, because she “is less than fourteen (14) years of. age.” Ind.Code § 35-37-4-6(c)(l). Her statement to Moss concerned “an act that is a material element of [the] offense ... allegedly committed against [her].” Ind.Code § 35-37-4-6(d)(2). Thus, under the terms of the Protected Person Statute, that statement would be admissible at trial if the requirements of subsection (e) are met:

(1) The court finds, in a hearing:
(A) conducted outside the presence of the jury; and
(B) attended by the protected person in person or by using closed circuit television testimony as described in section 8(f) and 8(g) of this chapter;
that the time, content, and circumstances of the statement or videotape provide sufficient indications of reliability.
(2) The protected person:
(A) testifies at the trial; or
(B) is found by the court to be unavailable as a witness for one (1) of the following reasons:
(i) From the testimony of a psychiatrist, physician, or psychologist, and other evidence, if any, the court finds that the protected person’s testifying in the physical presence of the defendant will cause the protected person to suffer serious emotional distress such that the protected person cannot reasonably communicate.
(ii) The protected person cannot participate in the trial for medical reasons.
(iii) The court has determined that the protected person is incapable of understanding the nature and obligation of an oath.

Ind.Code § 35-37-4-6(e). Upon remand, if the prosecutor seeks to admit Moss’s statements pursuant to the Protected Person Statute rather than Rule 803(4), the court will have to conduct a hearing to determine whether those statements have “sufficient indications of reliability.” S.D. will also have to testify at trial, or be found to be unavailable. If she is found unavailable, her statements may only be admitted if she was available for cross-examination at the reliability hearing. Ind.Code § 35-37-4-6(f)(l).

Of course, the declarant’s subjective belief may still be a factor in the court’s determination of reliability. But where we have a statute that permits the trial court to consider the totality of the circumstances, it need not be the only factor. Therefore, I concur in result.

RUSH, J., concurs.

      .At trial, a forensic scientist would testify that the analysis performed on these samples showed a mixture of biological profiles from which VanPatten could not be excluded. Additionally, a number of the samples included DNA containing Y chromosomes — in other words, DNA from a male.

      . Ind.Code § 35-42-4-3(a) (2008).

      . Ind.Code § 35-42~4-3(b) (2008).

      . For that matter, although it has no bearing on our assessment of this issue, we commend VanPatten's counsel for their presentation of his defense. The record reflects a trial conducted with a high level of competence and advocacy on both sides of the aisle — and presided over by one of the finest trial judges in Indiana — that is particularly admirable in light of the apparent disputes between defense counsel and their client.

      . On February 20, 2013, the U.S. Supreme Court decided Evans v. Michigan, in which it held that Double Jeopardy protections barred the retrial of a criminal defendant who was granted a directed verdict of acquittal “because the prosecution had failed to prove an 'element' of the offense that, in actuality, it did not have to prove.” - U.S. -, 133 S.Ct. 1069, 1074, 185 L.Ed.2d 124 (2013). Nothing in Evans so limits the State here, should it wish to retry VanPatten.

      . Ala.Code §§ 15-25-31 & -32 (2011 & Supp. 2012); Alaska Stat. § 12.40.110 (2012); Ariz. Rev.Stat. Ann. § 13-1416 (2010); Ark. R. Evid. 803(25); Cal. Evid.Code § 1360 (Supp.2013); Colo.Rev.Stat. § 13-25-129 (2012); Del.Code Ann. tit. 11, § 3513 (2007); Fla. Stat. § 90.803(23) (2011); Ga.Code Ann. § 24-8-820 (2013); Haw. R. Evid. 804(b)(6); 725 Ill. Comp. Stat. § 5/115-10 (2008 & Supp.2012); Ind.Code § 35-37-4-6; Kan. Stat. Ann. § 60-460(dd) (2005 & Supp. 2012); Md.Code Ann., Crim. Proc. § 11-304 (2008 & Supp.2012); Mass. Gen. Laws ch. 233, § 81 (2000); Mass. R. Evid. § 804(b)(8); Mich. R. Evid. 803A; Minn.Stat. § 595.02(3) (2010); Miss.Code Ann. § 13-1-403 (2012); Mo.Rev. Stat. § 491.075 (2011 & Supp.2013); Mont. Code Ann. § 46-16-220(2011); Nev.Rev.Stat. § 51.385 (2004); N.J. R. Evid. 803(27); N.D. R. Evid. 803(24); Ohio R. Evid. 807; Okla. Stat. tit. 12, § 2803.1 (2009); Or.Rev.Stat. § 40.460(18a) (2013); 42 Pa. Cons.Stat. § 5985.1 (2000 & Supp.2012); S.D. Codified Laws § 19-16-38 (2013); Tex.Crim. Proc. Code Ann. art. 38.072 (2005 & Supp.2012); Tex. Gov't Code Ann. § 2001.122 (2008); Utah R.Crim. P. 15.5; Vt. R. Evid. 804A; Wash. Rev.Code § 9A.44.120 (2009).

      . See, e.g., Cal. Evid.Code § 1360; Fla. Stat. § 90.803(23); 725 Ill. Comp. Stat. § 5/115-10; Ind.Code § 35-37-4-6; Kan. Stat. Ann. § 60-460(dd); Md.Code Ann., Crim. Proc. § 11-304; Mass. Gen. Laws ch. 233, § 81; Mass. R. Evid. § 804(b)(8); Mich. R. Evid. 803A; Minn.Stat. § 595.02(3); Nev.Rev.Stat. § 51.385; N.J. R. Evid. 803(c)(27); Ohio R. Evid. 807; Okla. Stat. tit. 12, § 2803.1; Or. Rev.Stat. § 40.460(18a); Tex.Crim. Proc.Code Ann. art. 38.072; Tex. Gov’t Code Ann. § 2001.122; Vt. R. Evid. 804A; Wash. Rev. Code § 9A.44.120.
      Some scholars argue these statutes are overly restrictive, preventing the use of child witness hearsay that would be both reliable and helpful to the trier of fact. See, e.g., Jean Montoya, Child Hearsay Statutes: At Once Over-Inclusive and Under-Inclusive, 5 Psychol. Pub. Pol'y & L. 304, 316 (1999).

      . See, e.g., Ala.Code §§ 15-25-31, -32; Ariz. Rev.Stat. Ann. § 13-1416; Colo.Rev.Stat. § 13-25-129; Del.Code Ann. tit. 11, § 3513; Miss.Code Ann. § 13-1-403; Mo.Rev.Stat. § 491.075; Mont.Code Ann. § 46-16-220; N.D. R. Evid. 803(24); 42 Pa. Cons.Stat. § 5985.1; S.D. Codified Laws § 19-16-38; Utah R.Crim. P. 15.5.

      . But see Ala.Code §§ 15-25-31,-32; Alaska Stat. § 12.40.110; Del.Code Ann. tit. 11, § 3513; Ga.Code Ann. § 24-8-820; Haw. R. Evid. 804(b)(6); Mich. R. Evid. 803A; Mont. Code Ann. § 46-16-220 (all omitting hearing requirement).

      . Alaska Stat. § 12.40.110 (requiring declarant testify either at trial or in a grand jury proceeding); Ga.Code Ann. § 24-8-820 (requiring declarant testify and hearsay statement have “sufficient indicia of reliability”); Ind.Code § 35-37-4-6 (requiring declarant be available for cross-examination either when statement was made or at credibility hearing); Mich. R. Evid. 803A (admitting only statements that corroborate '“testimony given by the declarant during the same proceeding”); Tex. Gov’t Code Ann. § 2001.122 (requiring declarant testify); Vt. R. Evid. 804A'(requir-ing declarant testify and statement have "substantial indicia of trustworthiness”).

      . See, e.g., Ariz.Rev.Stat. Ann. § 13-1416; Cal. Evid.Code § 1360; Colo.Rev.Stat. § 13-25-129; Fla. Stat. § 90.803(23); 725 Ill. Comp. Stat. § 5/115-10; Md.Code Ann., Crim. Proc. § 11-304; Mass. Gen. Laws ch. 233, § 81; Mass. R. Evid. § 804(b)(8); Minn. Stat. § 595.02(3); Miss.Code Ann. § 13-1-403; Mo.Rev.Stat. § 491.075; N.J. R. Evid. 803(27); N.D. R. Evid. 803(24); Okla. Stat. tit. 12, § 2803.1; S.D. Codified Laws § 19-16-38; hut see Ala.Code §§ 15-25-31, -32 (omitting corroboration requirement); Del. Code Ann. tit. 11, § 3513 (requiring “particularized guarantees of trustworthiness” but not corroboration); Mont.Code Ann. § 46-16-220 (stating only that court must consider existence of corroboration as a factor in determining admissibility); Nev.Rev.Stat. § 51.385 (omitting corroboration requirement); Ohio Evid. R. 807 (requiring both unavailability and corroboration); Or.Rev.Stat. § 40.460(18a); 42 Pa. Cons.Stat. § 5985.1; Utah R.Crim. P. 15.5 (all omitting corroboration requirement).

      . Haw. R. Evid. 804(b)(6) (requiring declar-ant be unavailable to testify); Kan. Stat. Ann. § 60-460(dd) (requiring declarant be disqualified or unavailable to testify).

      . See, e.g., Styron v. State, 34 So.3d 724, 731 (Ala.Crim.App.2009) (recognizing Crawford partially abrogated Ala.Code § 15-25-32); People v. Moreno, 160 P.3d 242, 246 (Colo.2007) ("To the extent that the statute allows for the admission of out-of-court testimonial statements without the defendant being afforded an opportunity to cross-examine the declarant, it is now clear that [Colo.Rev.Stat. § 13-25-129] violates the confrontation guaranty of the Sixth Amendment.”); Hall v. State, 539 So.2d 1338, 1346 (Miss.1989) (invalidating Miss.Code Ann. § 13-1-403 as an impermissible legislative intrusion on the judicial power to make rules governing hearsay).
      In this case, of course, there is no Confrontation Clause issue, as S.D. took the stand and testified. (Tr. at 220-253.) And although the issue is not before us today, I note that even if this Court found a conflict between the Protected Person Statute and our Rules of Evidence, we could — as we have done before— assent to the statute. See Harrison v. State, 644 N.E.2d 1243, 1251 n. 14 (Ind.1995) (noting that a statute in conflict with the Rules of Evidence is invalid); Humbert v. Smith, 664 N.E.2d 356, 356 (Ind. 1996) (citing Harrison but nevertheless assenting to a statute relating to the admission of blood tests in paternity cases that conflicted with the Rules of Evidence). In my view, however, there is no such conflict. See Ind. Evidence Rule 802 ("Hearsay is not admissible except as provided by law or by these rules.” (emphasis added)).

        . See, e.g., Myatt v. Hannigan, 910 F.2d 680, 685 (10th Cir.1990) (upholding Kan. Stat. Ann. § 60-460(dd)); Thomas v. State, 725 A.2d 424, 429 (Del.1999) (upholding Del.Code Ann. tit. 11, § 3513); Glendening v. State, 536 So.2d 212, 221 (Fla.1988) (upholding Fla. Stat. § 90.803(23)); Bunn v. State, 291 Ga. 183, 728 S.E.2d 569, 575.(2012) (upholding Ga.Code Ann. § 24-8-820); People v. Priola, 203 Ill.App.3d 401, 148 Ill.Dec. 776, 561 N.E.2d 82, 95 (1990) (upholding 725 Ill. Comp. Stat. § 5/115-10); Holland v. State, 802 S.W.2d 696, 701 (Tex.Crim.App.1991) (upholding Tex.Crim. Proc.Code Ann. art. 38.072).

      . See, e.g., State v. Nelson, 131 Idaho 210, 953 P.2d 650, 656 (Idaho Ct.App.1998) (upholding admission of ten-year-old victim’s statements to an emergency room doctor); State v. James, 849 So.2d 574, 585 (La.Ct.App.2003) (upholding admission of five-year-old victim’s statements to doctor as part of routine interview); State v. Vaught, 268 Neb. 316, 682 N.W.2d 284, 290 (2004) (upholding admission of four-year-old victim’s statements to doctor identifying perpetrator); State v. Munroe, 161 N.H. 618, 20 A.3d 871, 880 (2011) (upholding admission of seven-year-old victim’s statements to doctor); State v. Massengill, 133 N.M. 263, 62 P.3d 354, 362 (N.M.Ct.App.2002) (upholding admission of two-year-old victim’s statements to nurse and doctor); People v. Cole, 24 A.D.3d 1021, 807 N.Y.S.2d 166, 172 (2005) (upholding admission of six-year-old victim’s statements to emergency room doctor because they did not identify the perpetrator); State v. Shepherd, 156 N.C.App. 69, 575 S.E.2d 776, 779 (2003) (upholding admission of seven-year-old victim’s statements to doctor).

      . See, e.g., State v. Sorenson, 143 Wis.2d 226, 421 N.W.2d 77, 86 (1988) (upholding admission of seven-year-old victim's statements to social worker); see also Graham, supra, at 530-31.

      . Admittedly, we have done so in the past. See, e.g., McClain v. State, 675 N.E.2d 329, 331 (Ind.1996) (establishing two-prong test for admissibility of child victim hearsay under Rule 803(4) but finding the requisite indicia of reliability missing from the record); Cooper v. State, 714 N.E.2d 689, 692-93 (Ind.Ct.App.1999), trans. denied (applying McClain test to admit a child victim’s statements to a nurse during a physical examination).


source: Caselaw Access Project

author: BROWN, Judge.

license: Public Domain

text:
    CARMEUSE LIME & STONE and Carmeuse Lime, Inc., Appellants, v. ILLINI STATE TRUCKING, INC., Appellee.
    No. 45A03-1211-CC-462.
    Court of Appeals of Indiana.
    March 18, 2013.

      Bruce P. Clark, Jennifer E. Davis, Katherine Y. Gappa, Bruce P. Clark & Associates, St. John, IN, Attorneys for Appellants.
    Eric L. Kirschner, Green & Kuchel, P.C., Schererville, IN, Attorney for Appel-lee.
   OPINION

BROWN, Judge.

Carmeuse Lime & Stone and Carmeuse Lime, Inc. (collectively, “Carmeuse”) appeal from the trial court’s order dismissing their complaint in favor of Illini State Trucking, Inc. (“Illini”). Carmeuse raises one issue which we revise and restate as whether the court erred in dismissing its complaint. We affirm.

FACTS / COURSE OF PROCEEDINGS

The relevant facts follow. On December 7, 2007, John Ruiz, an employee of Nick’s Transport, a subcontractor of Illini, was injured on the premises of Carmeuse when he stepped into lime and/or other chemicals and received chemical burns. On November 30, 2009, Ruiz filed a complaint against Carmeuse in the Lake County Superior Court alleging premises liability, and on January 14, 2010, Carmeuse filed a notice to have the case removed to federal court due to diversity, noting that Carmeuse “is incorporated in the State of Delaware and its principal place of business is located in the State of Pennsylvania.” Appellants’ Appendix at 5. On November 15, 2010, Carmeuse filed a third party complaint in the federal action against Illini alleging that at the time of the accident “there was in full force, effect, and existence a contract ... by which Illini contracted and agreed and was required to indemnify, defend, and hold harmless Carmeuse.” Id. at 9. Specifically, the third party complaint recited Paragraph 12.1 of the contract, which it noted was attached as “Exhibit ‘A,’ ” stated:

Carrier [Illini] shall indemnify, defend, and hold harmless Shipper [Carmeuse], its employees, agents, representatives, successors and assigns from and against any and all judgments, costs, damages, claims, causes of action and expenses (including attorneys fees) resulting from or arising out of any injuries to persons (including death) and damage to property caused by [C]arrier’s performance hereunder or the negligent acts or omissions of the Carrier, its employees, agents, servants or representatives.

Id.

On March 18, 2011, Illini consented to federal jurisdiction. On May 18, 2011, Illi-ni filed a motion to dismiss Carmeuse’s third party complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) and brief in support, as well as a counterclaim against Carmeuse stating that Paragraph 12.2 of the contract contains a similar indemnity clause in Illini’s favor for negligent acts of Carmeuse, that Ruiz’s complaint alleges premises liability negligence on Carmeuse’s part, and that Carmeuse “owes Illini indemnification and reimbursement for attorneys fees and expenses incurred in the defense of the underlying action and in bringing this third party counter-claim.” Id. at 21. On August 4, 2011, the federal court issued an order granting Illini’s motion to dismiss Car-meuse’s third party complaint without prejudice, ruling that it failed to allege “any facts that Ruiz’s personal injuries were ‘caused by [Illini’s] performance [under the agreement] or the negligent acts or omissions of [Illini], its employees, agents, servants or representatives” and was “devoid of any factual allegation as to causation.” Id. at 30. The order also left pending Illini’s counterclaim against Car-meuse.

On November 14, 2011, Carmeuse filed a motion for leave to file a counterclaim against Illini, and on November 18, 2011 Illini moved for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). On December 29, 2011, Ruiz and Carmeuse filed a stipulation of dismissal stating that all matters between them had been amicably settled, and on January 4, 2012, the court so ordered dismissal with prejudice and noted that the counterclaim filed by Illini remained pending. On January 18, 2012, the court entered an opinion and order denying Carmeuse’s motion for leave to file a counterclaim and Illini’s motion for judgment on the pleadings, and left Illini’s counterclaim against Carmeuse pending. On March 1, 2012, Carmeuse filed a motion to remand the matter back to state court, arguing that the federal court no longer had jurisdiction. On April 18, 2012, the court issued an opinion and order declining to exercise supplemental jurisdiction over Illini’s counterclaim.

On June 26, 2012, Carmeuse filed a complaint against Illini in the Lake County Superior Court. The complaint contained substantially-similar language to Car-meuse’s previous third-party complaint filed in federal court and, indeed, stated among other things that “complete diversity remains,” that “[o]n or about December 7, 2007, the plaintiff herein was purportedly injured on the defendant’s premises after allegedly stepping into lime,” that “[t]he plaintiff was an employee of Nick’s Transport,” that “[a]ll of the claims against Carmeuse, as alleged in plaintiffs Complaint, are covered by the contract between Carmeuse and Illini,” and that “WHEREFORE, the Counter-claimant/defendant, Carmeuse ... prays that this Court find that the counter-defendant/claimant, Illini ... must indemnify ... Carmeuse....” Id. at 71-73. On July 26, 2012, Illini filed a motion to dismiss pursuant to Ind. Trial Rule 12(B)(6) and brief in support arguing that the complaint failed to meet the minimal requirements of Ind. Trial Rule 8(A) and that it made “no sense as it is doubtful that Carmeuse ... was driving a truck or jumped into a lime pit.” Id. at 78. Illini’s brief also stated that Carmeuse’s complaint suffered from the same deficiencies that caused the federal court to deny its motion for leave to file a counterclaim, and Illini attached as an exhibit a copy of the January 18, 2012 order.

On or about August 28, 2012, Carmeuse filed a response to Illini’s motion to dismiss requesting that the court deny Illini’s motion and referencing its motion for leave to amend pursuant to Ind. Trial Rule 15(a) and attached and also filed a proposed amended complaint, with the contract attached. On or about September 7, 2012, Illini filed its Objections to Carmeuse’s Motion for Leave to File Amended Complaint (the “Objection”) and began by stating that the proposed amended complaint failed to state a cause of action because its assertions regarding the underlying claim constituted “a legal conclusion stating that there were acts or omissions by Illini and fully fails to state a short and plain statement of relief or to state any claim of actual negligence against Illini,” that “the acts alleged in the proposed amended complaint are acts by Carmeuse on Car-meuse’s property, which caused the injuries to Mr. Ruiz,” and that “[t]he allegation that Carmeuse settled its claim with Ruiz for $7500 clearly indicates where the negligence was.” Id. at 122-123. The Objection also stated, under the heading “Improper Venue,” as follows:

The motor carrier/shipper agreement that has been attached and Paragraph 12 of that agreement cited by Carmeuse clearly does not apply. There have been no negligent acts or omissions of Illini or its agents even mentioned in any complaint ever filed by Carmeuse. However, the document at [P]aragraph 19 does say that with respect to any legal action related to this agreement, the action shall be brought and maintained in Allegheny County, Pennsylvania; to that effect, [Illini] and [Carmeuse] each hereby consent to personal jurisdiction and acknowledge venue is proper in that forum. Therefore, this matter should be filed in Pittsburgh, Pennsylvania and not in the State of Indiana. This issue was never raised in any of the Federal pleadings as Illini was a third-party defendant and the complaint against it was dismissed by the court. It is now time to point out that the agreement upon which Carmeuse claims this action is based mandates that this matter be filed in Pittsburgh, Pennsylvania.

Id. at 123.

On September 17, 2012, the court held a hearing on the filed motions. On October 1, 2012, Carmeuse filed its response to Illini’s Objection which stated in part that “for the first time in the entire course of litigation, Illini challenges forum” and that Carmeuse is “unaware of the exact reason(s) Illini waited until this juncture,” but “Illini should not be permitted to raise a challenge to forum after consistently waiving any objection in every proceeding and pleading up to this point.” Id. at 128. On October 4, 2012, the court issued an order stating:

[Carmeuse] filed a Motion to Amend its Complaint on August 28, 2012. This amendment is sought in response to [Il-lini’s] Motion to Dismiss filed on July 26, 2012. After the Court heard the Parties[’] oral argument the Court allowed [Carmeuse] to file a response to [Illini’s] objection to the amendment.
After taking the matter under advisement and reviewing the memoranda exhibits and relevant case law and Court rule [sic] the Court now Dismisses [Car-meuse’s] Complaint and Dismisses [Car-meuse’s] Motion to Amend.
The Contract that [Carmeuse] seeks the Court to review and eventually enforce its indemnification and hold harmless clauses, clearly states that the venue for any legal action related to the agreement would be in Allegheny County Pennsylvania. The Parties agreed to this forum in their contract. Yet [Car-meuse] wants to enforce the contract but ignore this venue provision.
The Court finds the proper venue for any action dealing with any alleged negligence of mini’s or its subcontractor’s employees in the performance of their employment under the contract should be in the forum which the Parties to the contract agreed upon, or Allegheny County Pennsylvania.
The Complaint is Dismissed and the Motion to Amend the Complaint is likewise Denied. This is a Final Appealable Order.

Id. at 156-157.

ISSUE / STANDARD OF REVIEW

The issue is whether the court erred in dismissing Carmeuse’s complaint. Initially, we note that the court in its October 4, 2012 order recognized that it reviewed memoranda exhibits in ruling on mini’s motion to dismiss and Carmeuse’s motion for leave to amend and therefore considered evidence outside of the pleadings. Accordingly, we review mini’s motion to dismiss as a motion for summary judgment. See Ind. Trial Rule 12(B) (“If, on a motion, asserting the defense number (6), to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56.”); New Albany-Floyd Cnty. Educ. Ass’n v. Ammerman, 724 N.E.2d 251, 255 n. 7 (Ind.Ct.App.2000) (“Although the trial court specifically granted Holman’s motion to dismiss and did not rule on his motion for summary judgment, we must nevertheless treat the former as a motion for summary judgment on review.”); Galbraith v. Planning Dep’t of City of Anderson, 627 N.E.2d 850, 852 (Ind.Ct.App.1994) (treating the trial court’s dismissal of plaintiffs complaint as a summary judgment for the defendant when plaintiff submitted an affidavit and trial court acknowledged that it considered matters outside the pleadings); Valley Fed. Sav. Bank v. Anderson, 612 N.E.2d 1099, 1101 (Ind.Ct.App.1993) (“When matters outside the pleadings are presented to and not excluded by the court, the motion is treated as one for summary judgment.”).

Summary judgment is appropriate only where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C); Mangold ex rel. Mangold v. Ind. Dep’t of Natural Res., 756 N.E.2d 970, 973 (Ind.2001). All facts and reasonable inferences drawn from those facts are construed in favor of the nonmovant. Mangold, 756 N.E.2d at 973. Our review of a summary judgment motion is limited to those materials designated to the trial court. Id. We must carefully review a decision on summary judgment to ensure that a party was not improperly denied its day in court. Id. at 974. In reviewing a grant of summary judgment we face the same issues as the trial court and follow the same process. Klinker v. First Merchs. Bank, N.A., 964 N.E.2d 190, 193 (Ind.2012). Under Trial Rule 56(C), the moving party bears the burden of making a prima facie showing that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. Id. If it is successful, the burden shifts to the nonmoving party to designate evidence establishing the existence of a genuine issue of material fact. Id.

ANALYSIS

Paragraph 19.2 of the contract states:

With respect to any legal action related to this Agreement, the action shall be brought and maintained in Allegheny County, Pennsylvania; to that effect, [Illini] and [Carmeuse] each hereby consent to personal jurisdiction and acknowledge venue is proper in that forum.

Appellants’ Appendix at 140.

This court has observed that “forum selection provisions are enforceable if they are reasonable and just under the circumstances and if there is no evidence of fraud or overreaching such that the agreeing party, for all practical purposes, would be deprived of a day in court.” Dexter Axle Co. v. Baan USA, Inc., 883 N.E.2d 43, 48 (Ind.Ct.App.2005). Additionally, the provision must have been freely negotiated. Id. “Moreover, ‘[e]ven where the forum-selection clause establishes a remote forum for resolution of conflicts, the party claiming [unfairness] should bear a heavy burden of proof.’ ” Id. (quoting Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 592, 111 S.Ct. 1522, 1526, 113 L.Ed.2d 622 (1991)) (internal quotations omitted).

Carmeuse argues that “Ulini did not raise any objection based upon venue or lack of jurisdiction in its original Motion under Rule 12 or a responsive pleading,” and accordingly it waived its claim. Appellants’ Brief at 8. Carmeuse argues that Ulini waived the contractual provision regarding venue when it “filed and litigated a claim against Carmeuse in the Northern District of Indiana without ever raising the issue of venue.” Id. at 10. Carmeuse argues that Ulini “raised additional arguments beyond those contained within its original Motion to Dismiss” as a part of its objection to Carmeuse’s motion for leave to amend, and these additional arguments “could also be seen as consent to jurisdiction in Indiana and, as such, an implied waiver of the contractual provision regarding venue.” Id. Carmeuse also argues that public policy considerations favor maintaining the litigation in Indiana, noting that “neither of the parties [are] located in Pennsylvania,” “both parties’ counsel practice in Indiana,” “Pennsylvania has virtually no connection to the facts of this case or underlying lawsuit,” “none of the witnesses are located in Pennsylvania,” and “litigating in Pennsylvania will result in significant additional costs due to expenses for travel, as well as the refiling of all Motions in Pennsylvania court.” Id. at 11.

Carmeuse does not claim that the forum selection clause was not freely negotiated, i.e., that the discrepancy in bargaining power led Carmeuse to sign the contract unwillingly or without awareness of its terms. See Grott v. Jim Barna Log Sys.-Midwest Inc., 794 N.E.2d 1098, 1102 (Ind.Ct.App.2003), trans. denied. Carmeuse instead argues that Ulini waived its ability to rely upon the forum selection clause because it did not raise it with the court until filing its Objection on September 7, 2012. Our review of the circumstances reveals that Carmeuse filed its complaint in the instant action on June 26, 2012, and in so doing it did not attach the contract. Ulini filed its motion to dismiss, arguing that Carmeuse’s complaint was incoherent as it contained language similar or identical to the language filed in its earlier, third party complaint in the federal action. Specifically, the complaint stated, among other things, that “complete diversity remains,” and it repeatedly referred to “the plaintiff’ in a context more properly attributable to Ruiz, but of course Carmeuse was the appropriate plaintiff. Based upon these errors, Carmeuse filed a response to the motion to dismiss and a motion for leave to amend. Carmeuse attached to the motion for leave to amend its proposed amended complaint as well as the contract. Ulini thereafter filed its Objection and brought to the court’s attention the forum selection clause contained in the contract found under Paragraph 19.2.

Thus, Ulini was unsure of how to respond to the initial complaint, which was averred as if it were submitted by a third party plaintiff asking for indemnification against the claims of an injured plaintiff and, importantly, did not contain a copy of the contract at issue. See Ind. Trial Rule 9.2(A) (“When any pleading allowed by these rules is founded on a written instrument, the original, or a copy thereof, must be included in or filed with the pleading.”). It was only after Carmeuse submitted, as an attachment to its motion for leave to amend, the proposed amended complaint and controlling contract that Illini was in a position to bring the forum selection clause to the court’s attention. Further, Car-meuse does not cite to authority for its proposition that because Illini did not assert the forum selection clause when it responded to Carmeuse’s third party complaint in the federal action it waived its ability to rely on the clause in a subsequent state court action. Carmeuse also does not cite to authority that because the contract had been previously litigated in federal court, Illini was on notice, so to speak, regarding the forum selection provision of the contract, and that accordingly it was required to raise the forum selection clause in its original motion to dismiss despite the fact that the contract had not been attached to the original complaint. Under these circumstances, we cannot say that Illini waived its ability to raise the forum selection clause with the court.

Carmeuse does argue that the forum selection clause is unjust and unreasonable, specifically arguing that enforcement would be against public policy. We first observe on this score that its suggestion that “neither of the parties [are] located in Pennsylvania” is patently false — indeed, Carmeuse specifically pled in its complaint that its principal place of business is located in Pennsylvania and the contract lists a Pittsburgh, Pennsylvania address for Car-meuse. Thus, it appears that the forum selection clause was negotiated for Car-meuse’s benefit.

This court has articulated the test for a forum selection clause being unjust and unreasonable as a showing that “trial in the contractual forum "will be so gravely difficult and inconvenient that they will, for all practical purposes, be deprived of their day in court.” Grott, 794 N.E.2d at 1103-1104 (citing Horner v. Tilton, 650 N.E.2d 759, 763-764 (Ind.Ct.App.1995) (quoting M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 18, 92 S.Ct. 1907, 1917, 32 L.Ed.2d 513 (1972)), reh’g denied, trans. denied). As noted above, “[e]ven where the forum-selection clause establishes a remote forum for resolution of conflicts, the party claiming [unfairness] should bear a heavy burden of proof.” Dexter Axle, 833 N.E.2d at 48 (quoting Carnival, 499 U.S. at 592, 111 S.Ct. at 1526) (internal quotations omitted).

Carmeuse cites to Farm Bureau Gen. Ins. Co. of Mich. v. Sloman, 871 N.E.2d 324 (Ind.Ct.App.2007), trans. denied, and argues that in that case “the court decided not to enforce a forum selection clause when doing so would result in ‘added expenses and inconvenience to the parties ant [sic] the witnesses, an increased burden on the judicial system, and the possibility of inconsistent verdicts.’ ” Appellants’ Brief at 11 (quoting Farm Bureau, 871 N.E.2d at 332). In Farm Bureau, defendant Sloman and Janet Lund were involved in an automobile accident after Lund merged in front of Sloman in Elkhart, Indiana. 871 N.E.2d at 326. Sloman was insured by Farm Bureau under an insurance policy purchased in Michigan and governed by Michigan’s No-Fault Act, also containing uninsured motorist coverage, and Lund was an uninsured motorist. Id. Farm Bureau ultimately denied Slo-man’s claim “because it believed that Slo-man had failed to provide it with written notice of his uninsured motorist claim within one year of the accident,” and Sloman filed a complaint in Elkhart County, Indiana. Id. at 327. Farm Bureau filed a motion to dismiss under Ind. Trial Rule 12(B)(6), or, in the alternative, motion for summary judgment, asserting that the insurance policy contained a forum selection clause designating that any dispute regarding coverage “must take place in the venue of the county and state in which this policy was purchased,” which, in Sloman’s case, was in Cass County, Michigan. Id. The court denied Farm Bureau’s motion, and an interlocutory appeal ensued. Id. at 328.

On appeal, this court examined prior precedent including Carnival and Dexter Axle and applied the two-part test to determine the forum selection clause’s validity. Id. at 329. This court first determined that the forum selection clause had been freely negotiated and subsequently examined whether it was just and reasonable under the circumstances. Id. at 330. It began its analysis by observing that “[ujsually, no public policy reasons exist to prevent parties from establishing venue through a contractual provision” because “forum selection clauses typically serve as a worthy tool to limit the for a in which a company may be sued,” among other things, but next noted that “[njevertheless, a forum selection clause’s validity may come into question when it ‘interfere[s] with the orderly allocation of judicial business -’ ” Id. The court noted that Farm Bureau would only be liable to Sloman if “(1) the accident was the fault of Lund and (2) Sloman suffered damages as a result thereof,” and that “[cjonsequently, any action against Farm Bureau on the contract is inseparably tied to the legal liability of Lund.” Id. The court observed:

The forum selection clause cannot bind Lund who was not a party to this contract between Farm Bureau and Slo-man. In fact, Michigan would have no jurisdiction over Lund for an accident that occurred in Indiana. Hence, implementation of Farm Bureau’s forum selection clause would result in Sloman having to file two separate yet similar lawsuits emanating from the same aeei-dent: one in Indiana against Lund regarding liability and damages, and one in Michigan against Farm Bureau regarding its obligation to pay damages to Sloman under its uninsured motorist provision.

Id. at 331. The court examined policy considerations as identified in Carnival and held that enforcing the forum selection clause under the circumstances was unjust and unreasonable and noted in particular that “avoidance of multiple lawsuits involving the same parties and the same issues has historically been of great concern in Indiana.” Id. at 331-333.

Here, by contrast, Carmeuse has already settled with Ruiz, the party who would have not been bound by the forum selection clause contained in the contract between Carmeuse and Illini. Thus, there is no possibility of multiple lawsuits. Also, as noted above the party claiming unfairness from a forum selection clause due to the remoteness of the forum bears a heavy burden of proof. On that score, we also note that the distance between Lake County, Indiana, and Allegheny County, Pennsylvania, may be traversed by automobile in several hours, and accordingly we cannot say that Allegheny County, Pennsylvania is too remote. See Horner, 650 N.E.2d at 764 (noting that the distance between Marion County, Indiana and Peoria County, Illinois “may be traversed by automobile in several hours” and accordingly “it cannot be said that, in the context of the issue before us, Peoria County, Illinois is a remote forum”). We cannot say that enforcing the forum selection clause is unjust and unreasonable, and accordingly we conclude that the court did not err in dismissing Carmeuse’s lawsuit.

For the foregoing reasons, we affirm the court’s order dismissing Carmeuse’s complaint.

Affirmed.

BAILEY, J., and VAIDIK, J., concur.

      . Carmeuse's appendix does not contain a copy of the chronological case summary ("CCS”). We direct Carmeuse’s attention to Ind. Appellate Rule 50(A)(2) which provides that ”[t]he appellant’s Appendix shall contain ... copies of the following documents, if they exist: (a) the chronological case summary for the trial court....”

      .Specifically, Ruiz alleged that he was driving a truck within Carmeuse’s facility and "had to drive to the side of a road due to equipment located on the opposite side,” that his truck ended up in a ditch, that he exited the truck into what he believed to be knee-deep snow, and that it was "later determined that the ditch contained ‘lime’ and/or other chemicals, which caused [Ruiz's] legs to burn.” Appellants’ Appendix at 1-2.

      . We note that although the contract is contained in the appellants' appendix as an attachment to Carmeuse’s motion for leave to amend complaint and proposed amended complaint filed in the instant state action, it is not contained in the appendix following the third party complaint in the federal action.

      . Carmeuse’s proposed counterclaim is not contained in the record on appeal.

      . Specifically, Carmeuse argued that "with respect to Illini’s Counter-Claim, there is nor [sic] reason to believe, or evidence to support, that the amount in controversy ... will amount to $75,000.00” which is a requirement for a federal court to maintain diversity jurisdiction. Appellants’ Appendix at 58.

      . We note that part of the federal court’s April 18, 2012 order, including the conclusion, was not included in the appellants’ appendix.

      . The record does not contain a transcript of this hearing. Also, as noted above, the record does not contain a CCS — thus, the record does not document that this hearing occurred. However, Carmeuse notes in its statement of the facts that "[t]he trial court held a hearing on [Carmeuse’s] Motion for Leave and [Illini’s] Objection thereto on September 17, 2012, and permitted Carmeuse to file a Response to Illini’s objection...." Appellants’ Brief at 6. Also, the court noted in its October 4, 2012 order that ’’[a]fter the Court heard, the Parties!’] oral argument the Court allowed [Carmeuse] to file a response to [Mini's] objection to the amendment.” Appellants’ Appendix at 156 (emphasis added).

      . We observe that Carmeuse does not specifically challenge the court’s denial of its motion for leave to amend.

      . We observe that, although this case was handled pursuant to Ind. Trial Rule 56 and generally such rulings are final as to the merits of a claim, here the trial court specifically dismissed Carmeuse’s claim based upon a forum selection clause and did not address the merits of its claim. Today, we similarly affirm on that basis. Thus, Carmeuse is not barred based upon the doctrine of res judicata from bringing suit against Illini in the proper forum. See Small v. Centocor Inc., 731 N.E.2d 22, 26 (Ind.Ct.App.2000) (noting in part that in order to be barred from bringing a claim under res judicata’s claim preclusion prong, "the former judgment must have been rendered on the merits ...”), reh'g denied, trans. denied; see also Indianapolis Downs, LLC v. Herr, 834 N.E.2d 699, 704 (Ind.Ct.App.2005) (noting that under issue preclusion, also known as collateral estoppel, the trial court must determine in part "whether the party in the prior action had a full and fair opportunity to litigate the issue ..."), trans. denied.


author: FRIEDLANDER, Judge.

text:
    STATE of Indiana, Appellant-Plaintiff, v. I.T., Appellee-Defendant.
    No. 20A03-1202-JV-76.
    Court of Appeals of Indiana.
    March 20, 2013.
    Rehearing Denied May 20, 2013.

      Gregory F. Zoeller, Attorney General of Indiana, Brian Reitz, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellant.
    Donald R. Shuler, Barkes, Kolbus, Rife & Shuler, LLP, Goshen, IN, Attorney for Appellee.
   OPINION

FRIEDLANDER, Judge.

The State appeals from the juvenile court’s order rescinding its prior approval of a delinquency petition filed against I.T. Concluding 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, we dismiss.

In April 2011, then fifteen-year-old I.T. was adjudicated a delinquent child for committing an act that would constitute class B felony child molesting if committed by an adult. As part of its dispositional order, the juvenile court placed I.T. on probation and ordered him to participate in an outpatient treatment program for juveniles with sexual behavior problems. The court also ordered I.T. to undergo polygraph examinations to ensure his compliance with the rules of probation and the treatment program. During one of these court-ordered polygraph examinations, I.T. admitted to molesting two additional children. Specifically, he stated that in September of 2010, he induced E.T., his mentally-challenged, thirteen-year-old brother, to perform oral sex on him and one of his friends. He also stated that in October 2010, he touched J.W., his three-year-old cousin, on her vagina in a sexual manner.

On August 31, 2011, I.T.’s probation officer reported to the Department of Child Services (DCS) that I.T. had admitted to molesting E.T. and J.W. DCS, in turn, notified the police. E.T. was interviewed on September 2, 2011, and he reported that I.T. and one of I.T.’s friends had made him perform oral sex on them. J.W. had been previously interviewed as a result of a complaint made by her father. During the interview, J.W. indicated that she had been touched inappropriately, but was unable to provide the name of the perpetrator, instead referring to him only by a nickname that was believed at the time to reference E.T. Due to J.W.’s young age, the police did not interview her a second time after I.T. admitted to fondling her.

Also on September 2, 2011, Detective David Miller met with I.T. and his mother. I.T. and his mother were provided a waiver-of-rights form advising them of I.T.’s Miranda rights and their right to meaningful consultation. I.T. and his mother both signed the form indicating that they wished to waive their rights, and I.T. gave a statement in which he admitted to molesting J.W.and E.T.

Thereafter, on November 21, 2011, the State filed a delinquency petition alleging that I.T. was a delinquent child for committing what would be, if committed by an adult, class B felony child molesting against E.T. and class C felony child molesting against J.W. On November 30, 2011,' the juvenile court issued an order approving the filing of the delinquency petition in which it found probable cause to believe that I.T. was a delinquent child and that it was in the best interest of I.T. and/or the public that the delinquency petition be filed.

On December 19, 2011, I.T. filed a motion to dismiss the delinquency petition, alleging that the delinquency allegations arose from I.T.’s disclosures during sex-offender treatment, and that those disclosures were inadmissible under Ind.Code Ann. § 31-37-8-4.5 (West, Westlaw current through 2012 2nd Reg. Sess.), which provides that a child’s statements to a mental health evaluator “may not be admitted as evidence against the child on the issue of whether the child committed a delinquent act or a crime.” A hearing was held the next day, at which the State argued that the statute was not implicated because the State had no intention of calling a mental health treatment provider as a witness or introducing I.T.’s statements during the polygraph into evidence. Rather, the State indicated that it would admit evidence from Detective Miller’s September 2 interview of I.T., as well as evidence from the interviews of E.T. and J.W., and testimony from the investigating officer and the victims themselves. I.T. responded that this evidence would not have been discovered but for I.T.’s statements during the polygraph and was therefore inadmissible as fruit of the poisonous tree. At the conclusion of the hearing, the juvenile court took the matter under advisement and asked the parties to submit briefs.

The parties submitted briefs as ordered, and on January 19, 2012, the juvenile court issued a detailed, eighteen-page order, in which it concluded that Ind.Code Ann. §§ 31-32-2-2.5 and 31-37-8^.5 (West, Westlaw current through 2012 2nd Reg. Sess.) confer an immunity with respect to the statements I.T. made during his polygraph examination, and that the immunity extended to “any evidence derivatively gained as a result of his disclosures.” Appellant’s Appendix at 95. The court went on to conclude that

[rjemoving the consideration of the prohibited evidence, the Court can find no other evidence whatsoever to support a finding of probable cause to believe that the child committed the delinquent acts alleged in the Petition filed in this case, 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.

Id. at 100. The court therefore “re-seind[ed] the previously granted Order Approving Filing of the Delinquency Petition” and concluded that its decision to set aside that order was grounds for dismissal. Id. The State now appeals.

As an initial matter, we note that it is a “bedrock fundamental of criminal appellate law” that “the State must have statutory authorization to bring an appeal of a criminal matter.” State v. Brunner, 947 N.E.2d 411, 415 (Ind.2011); see also Ind.Code Ann. § 35-38-4-2 (West, West-law current through 2012 2nd Reg. Sess.) (setting forth circumstances in which the State may appeal). “The State’s statutory right of appeal is in contravention of common law principles and is therefore strictly construed.” State v. Coleman, 971 N.E.2d 209, 211 (Ind.Ct.App.2012). Of course, we are not dealing with a criminal matter in this case — -juvenile proceedings are civil in nature and an act of juvenile delinquency is not a crime. J.V. v. State, 766 N.E.2d 412 (Ind.Ct.App.2002), trans. denied. Nevertheless, I.C. § 31-32-1-1 (West, Westlaw current through 2012 2nd Reg. Sess.), provides that “[i]f a child is alleged to be a delinquent child, the procedures governing criminal trials apply in all matters not covered by the juvenile law.” It is apparent to us that the rule requiring statutory authorization for the State to appeal in criminal matters is a procedural one; thus, we are left to determine whether the juvenile law has addressed the issue.

I.C. § 31-32-15-1 (West, Westlaw current through 2012 2nd Reg. Sess.), which is located in the article entitled “Juvenile Law: Juvenile Court Procedures”, and is the sole section within the chapter entitled “Appeals,” provides simply that “[a]ppeals may be taken as provided by law.” This provision was clearly designed to incorporate existing law found outside the juvenile code — and in light of I.C. § 31-32-1-1, we believe this includes the procedural rule requiring statutory authorization for the State to appeal in criminal matters. See State v. C.D., 947 N.E.2d 1018 (Ind.Ct.App.2011) (applying to a juvenile delinquency proceeding the statute addressing the State’s right to appeal in criminal matters).

I.C. § 35-38-4-2 sets forth the circumstances under which the State may appeal in criminal matters (and, by extension, juvenile delinquency proceedings). The statute provides:

Appeals to the supreme court or to the court of appeals, if the court rules so provide may be taken by the state in the following cases:
(1) From an order granting a motion to dismiss an indictment or information.
(2) From an order or judgment for the defendant, upon his motion for discharge because of delay of his trial not caused by his act, or upon his plea of former jeopardy, presented and ruled upon prior to trial.
(3) From an order granting a motion to correct errors.
(4) Upon a question reserved by the state, if the defendant is acquitted.
(5) From an order granting a motion to suppress evidence, if the ultimate effect of the order is to preclude further prosecution.
(6)From any interlocutory order if the trial court certifies and the court on appeal or a judge thereof finds on petition that:
(A) the appellant will suffer substantial expense, damage, or injury if the order is erroneous and the determination thereof is withheld until after judgment;
(B) the order involves a substantial question of law, the early determination of which will promote a more orderly disposition of the case; or
(C) the remedy by appeal after judgment is otherwise inadequate.

I.C. § 35-38-4-2 (emphasis supplied). Subsections (2), (3), (4), (5), and (6) are plainly inapplicable to the case at hand. Thus, we must determine whether subsection (1) applies — that is, whether the State is appealing from “an order granting a motion to dismiss an indictment or information.” It is apparent from the parties’ briefings that they have regarded the juvenile court’s order as such, and this conclusion is, at first blush, reasonable. Indeed, the juvenile court’s order was issued in response to I.T.’s motion to dismiss, and the court specifically stated in its order that it was dismissing the delinquency petition. Upon further consideration, however, it is apparent to us that the juvenile court’s order in this case does not constitute an “an order granting a motion to dismiss an indictment or information” for the purposes of I.C. § 35-38-4-2.

In reaching this conclusion, we believe it is important to remember that juvenile delinquency proceedings are initiated differently than criminal proceedings. A criminal prosecution is commenced upon the filing of an information or indictment by a prosecuting attorney. Ind.Code § 35-34-1-1 (West, Westlaw current through 2012 2nd Reg. Sess.). Prior to the commencement of juvenile delinquency proceedings, however, the filing of a delinquency petition must be approved by the juvenile court. Ind.Code Ann. § 31-37-10-2 (West, Westlaw current through 2012 Second Reg. Sess.) (providing that the juvenile court shall consider the evidence and preliminary inquiry and “[a]pprove the filing of a petition if there is 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”). Thus, unlike in criminal matters, the juvenile court acts as a gatekeeper in deciding whether delinquency allegations will go forward based on both the weight of the evidence and considerations of the best interests of the child and society at large. This distinction reflects the broad discretion afforded juvenile courts based on the doctrine of parens patriae, upon which the juvenile court was founded. See In re K.G., 808 N.E.2d 631 (Ind.2004). The doctrine allows the juvenile court “the power to step into the shoes of the parents” and “further the best interests of the child, which implies a broad discretion unknown in the adult criminal court system.” Id. at 635, 636.

It seems evident to us that a juvenile court’s order declining to approve the filing of a delinquency petition under I.C. § 31-37-10-2 is not “an order granting a motion to dismiss an indictment or information” for the purposes of I.C. § 35-38-4-2(1). Rather, a juvenile court’s decision not to approve the filing of a juvenile delinquency petition prevents the initiation of juvenile proceedings in the first place. One cannot dismiss a proceeding that was really never commenced to begin with. It appears that the State has not in the past treated such decisions as dismissals giving the State a right to appeal. At least, we have not discovered a case in which the State appealed a juvenile court’s refusal to approve the filing of a delinquency petition.

Thus, if the juvenile court in this case had initially declined to approve the filing of the delinquency petition against I.T., the State would have no right to appeal. In this ease, however, the juvenile court initially approved the filing of the delinquency petition, but later withdrew its approval. We do not believe this fact does anything to change the nature or import of the juvenile court’s order declining to approve the filing of the delinquency petition, e.g., it does not transform that order into a dismissal. This court has repeatedly noted that “a trial court has the inherent power to reconsider any previous ruling so long as the action remains in fieri.” Johnson v. Estate of Brazill, 917 N.E.2d 1235, 1239 n. 5 (Ind.Ct.App.2009).

Nor can we conclude that, in this particular case, the specific language in the juvenile court’s order indicating that it was dismissing the delinquency petition, in part because it had withdrawn its original approval thereof, transforms the court’s action into a dismissal. The juvenile court’s order declining to approve the filing of the delinquency petition, although entered after initially approving the filing, retroactively rescinded the initiation of juvenile proceedings. Because the juvenile court rescinded its order approving the filing of the delinquency petition, the purported dismissal of the delinquency petition was superfluous. Put another way, once the juvenile court “unapproved” the initial filing of the delinquency petition, there was no delinquency petition left to dismiss.

Because we conclude that the juvenile court’s order was not “an order granting a motion to dismiss an indictment or information” for the purposes of I.C. § 35-38-4-2(1), we conclude that the State has no statutory right to appeal in this case, regardless of the merits of the juvenile court’s ruling. We therefore dismiss the State’s appeal.

Dismissed.

BROWN, J., and PYLE, J., concur.

      . We held oral argument in this matter on January 30, 2013.

      . As a result of these and other disclosures, the probation department filed a petition to modify the dispositional decree arising out of I.T.’s original delinquency adjudication. After a hearing on July 25, 2011, the juvenile court granted the petition and ordered I.T.’s placement in a residential treatment facility. I.T. does not challenge the modification of the dispositional decree in this appeal. Rather, the issues in this appeal stem from the filing of an additional delinquency petition based on I.T.'s alleged molestation of E.T. and J.W.

      . Although the language of I.C. § 31-37-8-4.5 is nearly identical to that in I.C. § 31-32-2-2.5, the former statute applies to mental health screening and evaluation conducted as part of a preliminary inquiry into whether a child has committed a delinquent act, while the latter statute applies to mental health screening and evaluation conducted as part of juvenile proceedings. See I.C. § 31 —37—8— 4.5(a) (providing that the statute applies only to mental health screening, assessment, evaluation, or treatment conducted by an evaluator "in conjunction with proceedings under this chapter” (emphasis supplied)); I.C. § 31-32-2-2.5(a) (providing that the statute applies only to mental health screening, assessment, evaluation, or treatment conducted by an evaluator "in conjunction with proceedings under this article " (emphasis supplied)). Because the polygraph in this case was conducted as part of I.T.’s treatment and monitoring pursuant to a dispositional decree entered as a result of a previous delinquency adjudication, as opposed to a preliminary inquiry, I.C. § 31-37-8-4.5 is not applicable.

      . The juvenile court also cited two additional bases for dismissal: (1) I.T. had immunity "because the only allegations cited in the support of the charges against him are protected statements and evidence which is derivative of those statements;” and (2) "when any and all inadmissible evidence is excluded from consideration ... there is no probable cause for the allegations contained in the Petition[.]” Appellant's Appendix at 100. We need not address these conclusions because we resolve this case based on the dispositive reasoning set forth above.

      . We note that neither party discussed the issue of the State's right to appeal in this matter in their briefs or at oral argument. The failure to raise an issue would ordinarily result in waiver. We note, however, that
      [t]he rule forbidding the discussion of points not originally suggested by appellant is made for the protection of the court, and only operates to excuse the court from considering questions that are not shown to have any material bearing upon the rights of the parties. Notwithstanding the failure of counsel to present the question, the court may consider and decide a question presented by the record, and may go outside the briefs of counsel for reasons upon which to base the decision, in order to do justice to the parties.

        Grant v. Wal-Mart Stores, Inc., 764 N.E.2d 301, 301 n. 1 (Ind.Ct.App.2002) (quoting White v. White, 208 Ind. 314, 317, 196 N.E. 95, 96 (1935)). The issue of the State’s right to appeal came to our attention after oral argument, and we conclude that it is appropriate to address this issue sua sponte in order to do justice in this case. See State v. Brunner, 947 N.E.2d at 415 (holding that the purpose behind the rule requiring statutory authorization for the State to appeal is "the idea that if the State brings a citizen before its own tribunal and loses, 'its avenging hand should be stayed except in unusual cases where the power to appeal was expressly conferred.’ ” (quoting State v. Sierp, 260 Ind. 57, 60, 292 N.E.2d 245, 246 (1973))).

      6. "[T]he clause 'if the court rules so provide’ is intended to differentiate between the respective jurisdictions of the Supreme Court and the Court of Appeals, and thereby act as a guide to counsel for the State as to which appellate court the appeal should properly be filed with.” State v. Williams, 445 N.E.2d 582, 584 (Ind.Ct.App.1983) (referring to predecessor statute). Thus, the clause is not intended to require the adoption of court rules authorizing appeals by the State. State v. Williams, 445 N.E.2d 582.

      . Although the juvenile court's order discussed at length the admissibility of the State's evidence, its order was not "an order granting a motion to suppress evidence” under subsection (5) because no motion to suppress was filed. Moreover, the order did not simply rule that certain evidence would not be admitted at a fact-finding hearing, but rather terminated the delinquency proceeding altogether. In any event, our analysis of this matter under I.C. § 35-38-4-2(1) would also be applicable to any claim that the juvenile court’s order was "an order granting a motion to suppress evidence” under subsection (5) of that statute.

      . Such judicial approval of the delinquency petition was once viewed as necessary to confer jurisdiction on the juvenile court, but our Supreme Court has clarified that the approval is a procedural requirement. K.S. v. State, 849 N.E.2d 538 (Ind.2006).