The Indiana Law Blog: Ind. Decisions - Court of Appeals issues 8 today (and 26 NFP)

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Friday, October 31, 2008

Ind. Decisions - Court of Appeals issues 8 today (and 26 NFP)

For publication opinions today (8):

In Term. of Parent Child Rel. of M.B. and S.B. , an important 25-page opinion, Judge Brown concludes:

A partial termination of parental rights does not exist under Indiana law. See Ind. Code § 31-35-6-4. Either the parent-child relationship survives, or it does not. Given the plain and unambiguous language of Indiana Code Section 31-35-6-4(a)(1), coupled with Indiana’s strong public policy to protect the emotional well-being of children whose parents have been either unable or unwilling to provide for their basic needs over a prolonged period of time, we conclude that Mother’s addendums to the voluntary consent forms are void ab initio and thus unenforceable as a matter of law.

Removal of the illegal addendums under the particular facts of this case, however, does not frustrate the basic purpose of the voluntary consent contracts, which were freely and voluntarily executed by Mother. Moreover, given the procedural posture of this appeal, Mother was required to establish, among other things, that HCDCS committed fraud, misrepresentation, or misconduct in order to obtain relief under Trial Rule 60 (B)(3). Simply put, we find no such evidence in the record. Accordingly, we conclude that the trial court did not abuse its discretion in denying Mother’s motion to set aside its order for voluntary termination of Mother’s parental rights to M.B. and S.B.

Notwithstanding our ultimate conclusion under the particular facts of this case, we nonetheless have serious concerns regarding the actions of the trial court, attorneys, and HCDCS in approving a post-termination visitation plan like the one involved herein. Trial courts are cautioned to refrain from approving post-termination agreements such as these in the future as they are contrary to Indiana law and are likely, under a different set of circumstances, to provide false hope to parents facing termination of their parental rights. Affirmed.

In Lloyd N. Huff, et al. v. Maxine Huff, et al. , a 9-page opinion on rehearing re an estate dispute, Judge Brown writes:

We grant rehearing and revise our original opinion as set forth herein. The result of the appeal is not changed, and we affirm our original opinion in all other respects.

In Best Chairs, Inc. v. Review Board of the Indiana Dept. of Workforce Development, a 9-page opinion, Chief Judge Baker concludes:

Under these circumstances and given this record, we can only conclude that—as in Quillen—the change in the terms of Schilling’s employment was not so unfair or unjust as to compel a reasonably prudent person to quit work under similar circumstances. Thus, we find that Schilling failed to meet her burden of establishing that she voluntarily terminated her employment with good cause and that there is not substantial evidence supporting the result reached by the Board. Consequently, we reverse.

In Rita Beatty v. Timothy LaFountaine, et al , a 13-page opinion, Chief Judge Baker writes:

The Beattys argue that summary judgment was improper because a genuine issue of material fact exists as to whether the defendant truck driver—James Martin—was an independent contractor or LaFountaine’s employee when the accident occurred. The Beattys also contend that LaFountaine is liable because it assumed a nondelegable contractual duty to place Martin under its exclusive control and to ensure that the driver “took all necessary precautions for the safety of all persons affected by the work.” Thus, the Beattys maintain that the trial court erred in denying their motion for summary judgment. Concluding that the trial court properly determined that LaFountaine was an independent contractor and finding no other error, we affirm the grant of summary judgment in LaFountaine’s favor.

In Cory Heinzman v. State of Indiana , a 19-page, 2-1 opinion, Judge May writes:

Cory Heinzman, a Child Protective Services caseworker with the Indiana Family and Social Services Administration (FSSA), was convicted after a jury trial of sixteen counts including official misconduct and various sexual offenses involving minors. He argues on appeal his charges should have been severed for trial, the State did not establish venue with regard to one victim, and there was insufficient evidence of official misconduct. We affirm in part, reverse in part, and remand. * * *

Conclusion. We reverse Heinzman’s convictions of official misconduct involving R.S., and remand with instructions to vacate those convictions, and affirm in all other respects. Affirmed in part, reversed in part, and remanded.
MATHIAS, J., concurring.
VAIDIK, J., dissenting with opinion. [which begins] I respectfully dissent from the majority’s reversal of Heinzman’s convictions for official misconduct relating to his offenses against R.S. Because I believe that the evidence is sufficient to support Heinzman’s convictions, I would affirm.

In Matthew W. Stevens v. State of Indiana , a 5-page opinion, Sr. Judge Hoffman concludes:

Because the trial court has jurisdiction to review DOC’s [educational] credit time determination, we reverse and remand with instructions for the trial court to send this case to the DOC for a review and determination of Stevens’ entitlement to the credit on all three grounds enumerated in I.C. 35-50-6-3.3(a).

In Henry Tillberry v. State of Indiana , a 9-page opinion, Judge May writes:

Henry Tillberry appeals the revocation of his probation. Because he was not afforded due process and because the trial court’s findings are unsupported by evidence, we must reverse. * * *

The informal conversation between the judge and parties at a hearing on the State’s Notice of Probation Violation not only failed to comport with Tillberry’s right to due process at a probation revocation, it also failed to elicit evidence to support by a preponderance of evidence the finding there had been two violations. Therefore, we reverse the revocation of Tillberry’s probation.

In Patrick Bergerson and Patrice Bergerson v. Michael Bergerson , an 18-page opinion, Judge May writes:

Patrick and Patrice Bergerson appeal the denial of their claim for damages arising out of a landlord-tenant relationship with Michael Bergerson. We affirm the judgment, and we deny Michael’s claim for appellate attorney fees. * * *

We have concluded the trial court ruled Patrick and Patrice were in substantial default of the lease, but its order is not a model of clarity, and we cannot say Patrick and Patrice’s interpretation of it was devoid of plausibility. Clarification of the earlier order may have helped the parties frame their arguments for appeal. This appeal is marked with the bitterness typical of family disputes, but we do not believe Michael has made a strong showing that the appeal was frivolous or in bad faith.

NFP civil opinions today (13):

In the Matter of the Adoption of A.L.M. (NFP)

Wendy Lyn Carr v. Jeffrey Scott Reagan (NFP)

In Re J.D. and D.D. (NFP)

Maurice Brown v. JPMorgan Chase Bank (NFP)

In the Matter of: K.M. (NFP)

In the Matter of J.F., S.O., & H.S.; and Melissa O. v. Vigo Co. Div. of Family & Children (NFP)

Joseph Primerano v. Indiana State Police (NFP)

The Invol. Term. of G.Y.; R.Y. (mother) v. Marion Co. Dept. of Child Svcs. (NFP)

John R. Nixon v. Dawn D. Nixon (NFP)

Alicia K. Dotson v. Stephen M. Dotson (NFP)

State of Indiana v. Honey Loehmer (NFP)