The Indiana Law Blog: Ind. Decisions - Court of Appeals issues 6 today (and 23 NFP)

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Thursday, December 11, 2008

Ind. Decisions - Court of Appeals issues 6 today (and 23 NFP)

Readers: I'm sorry to report that the opinions posted by the Court today are copyprotected, which means the ILB is unable to quote from them.

[More] A reader has asked (already):

Is “copy protected” some mechanical/electronic device, or a creature of the law???? I’m sure other bloggers would be interested as well.

Answer: In this case, the former. When you create a PDF you have the option of setting security so that the document may not be copied. This has been done in today's opinions.

Note: The problem has now been corrected, for the most part.

For publication opinions today (6):

In In the Termination of Parent/Child Relationship of M.S., a 14-page opinion, Chief Judge Baker writes:

Here, we are confronted with a mother who loves her children but is struggling to manage her oldest son’s special needs. Specifically, her son suffers from a personality disorder that causes him to act aggressively toward others, so his mother asked for help from the Department of Child Services. Everyone agrees that, for now, the boy should continue to reside in a facility so that he can receive full-time medical and behavioral care. To terminate the mother’s parental rights at this time is premature and would penalize her for asking for help. Therefore, we find that the trial court’s order terminating the parent-child relationship was erroneous.

Appellant-respondent H.S. (Mother) appeals the trial court’s order terminating her parental relationship with M.S., her eight-year-old son. Mother raises two arguments, one of which is dispositive; namely, that the evidence does not support the trial court’s conclusion that termination is in M.S.’s best interests. Finding that the evidence is insufficient to establish that termination is in M.S.’s best interests at this time, we reverse and remand for further proceedings. * * *

Having closely reviewed the record herein, we are compelled to conclude that termination of Mother’s parental rights at this time is, at best, premature. No one can predict when—or even whether—M.S. will become stabilized. And no one can predict what will be best for him when and if he becomes stabilized. But to say that Mother’s parental rights must be terminated merely because her child has special needs and she needs help to manage his behavior would send a sobering message indeed to all of the parents in Indiana with children who need ongoing medical or psychological assistance. In effect, as aptly put by Mother’s attorney during the termination hearing, taking this step “creates a message that if you’ve got a child that is difficult and you do seek help for that child, your reward is the child is removed, never to return.”

The problem here is not Mother’s parenting skills or her love for her children, nor has she been reluctant to comply with DCS’s suggested services. Instead, the problem is M.S.’s special needs. Rather than taking the radical action of severing the parent-child bond prematurely, DCS and the courts should be focused on helping M.S. to become stabilized and reevaluating his best interests when and if stabilization occurs. At this time, however, we find that the trial court erred by concluding that termination of the parent-child relationship is in M.S.’s best interests.

In Che B. Carter v. State of Indiana , a 25-page, 2-1 opinion, Chief Judge Baker writes:

Appellant-petitioner Che B. Carter appeals the denial of his petition for post- conviction relief, arguing that the post-conviction court erroneously concluded that he did not receive the ineffective assistance of appellate counsel. Specifically, Carter argues that his appellate attorney was ineffective for failing to raise an argument on appeal that the jury was erroneously instructed on the elements of attempted murder. Finding that appellate counsel was deficient for failing to raise that argument and that Carter was prejudiced as a result, we reverse and remand with instructions to vacate Carter's attempted murder conviction and for further proceedings. * * *

The judgment of the post-conviction court is reversed and remanded with instructions to vacate Carter's attempted murder conviction and for further proceedings.

MATHIAS, J., concurs.
BROWN, J., dissents with opinion. [which begins] I respectfully dissent from the majority?s reversal of Carter's attempted murder conviction. While I agree that the instruction at issue here was erroneous and that Carter's appellate counsel was deficient for failing to raise the issue on direct appeal, I conclude that Carter has failed to demonstrate prejudice. As a result, I would affirm the post-conviction court?s denial of Carter's petition for post-conviction relief.

In In Re: The Marvine W. Alford Trust, Joseph & Sarah Rogers v. Robert Lyons, Trustee, an 18-page, 2-1 opinion, Chief Judge Baker writes:

Today we are confronted with an issue of first impression in Indiana: Did the trial court properly dismiss a petition to remove a trustee and compel an accounting for lack of subject matter jurisdiction when the settlor?s will and trust documents provided that the trust was to be administered in accordance with the laws of Virginia?

Appellants-petitioners Joseph and Sarah Rogers (the Rogerses) appeal the trial court?s dismissal of their petition to remove appellee-respondent J. Robert Lyons as trustee of the Marvine W. Alford Trust (Alford Trust). Specifically, the Rogerses argue that the trial court erroneously determined that it lacked jurisdiction to consider the merits of their petition because the evidence established that Lyons, although a Virginia resident, made distributions from the Alford Trust to beneficiaries who are Indiana residents. Concluding that the trial court properly dismissed the Rogerses? petition, we affirm. * * *

In accordance with our statutes and the relevant trust administration principles discussed above, it is apparent that Indiana has no continuing supervisory jurisdiction over the Alford Trust. Indeed, Alford?s will contemplated that Lyons, a Virginia resident, would serve as the sole trustee, establishing that the Alford Trust would be administered in Virginia and that Virginia law would apply. In essence, the mere fact that Lyons directed payments to Indiana beneficiaries is of no moment in these circumstances. Therefore, we conclude that the trial court properly granted Lyons?s motion to dismiss based on the lack of subject matter jurisdiction. The judgment of the trial court is affirmed.

MATHIAS, J., concur.
BROWN, J., dissents with opinion. [which begins, on p. 11] I respectfully dissent from the majority‟s conclusion that the trial court properly granted Lyons‟s motion to dismiss and its blurring of the distinction between subject matter jurisdiction and personal jurisdiction.

In Ronald Hooker v. Jigme K. Norbu and Yaling Huang , a 17-page, 2-1 opinion, Chief Judge Baker writes:

Appellant-plaintiff Ronald Hooker appeals the trial court?s order calculating the damages owed to Hooker on his complaint for breach of contract against appellees- defendants Jigme K. Norbu and Yaling Huang (collectively, the appellees). Hooker argues that the trial court erroneously neglected to include interest payments that should have been made by the appellees as part of the damages award. Finding that Hooker elected the remedy of forfeiture rather than foreclosure and is therefore prohibited from recovering the missed payments, we affirm. * * *
MATHIAS, J., concurs.
BROWN, J., dissents with opinion: [which begins, on p. 10] I respectfully dissent. I disagree with the majority?s holding that by electing to have the Contract forfeited, Hooker may not enforce its terms with respect to outstanding payments for the time in which the appellees occupied the real estate but neglected to make full, or, in some months, even partial payments. I believe that the forfeiture provision at issue terminates the Contract prospectively and has no bearing on Hooker?s right to collect payments for the appellees' prior occupation of the real estate.

In Edward Powell v. State of Indiana, a 15-page opinion, Judge Vaidik writes:

While searching Edward Powell incident to his arrest for several crimes, an Indianapolis police officer felt an object in the seat of Powell‘s underwear. Because the officer could not access the object, and because Powell was wearing droopy pants that exposed most of his underwear, the officer, careful not to reveal Powell‘s skin, used a pocket knife to remove an eight-inch section of Powell‘s underwear and found cocaine enclosed in a fabric pocket. Powell then filed a motion to suppress the cocaine as well as statements he made to detectives during a custodial interview after allegedly requesting an attorney and invoking his right to remain silent. The trial court denied his motion, and Powell now brings this discretionary interlocutory appeal. Concluding under the factors enunciated in Bell v. Wolfish, 441 U.S. 520 (1979)—scope of intrusion, manner of search, justification for search, and place conducted—that the search of Powell‘s person was reasonable under the Fourth Amendment and finding no other constitutional violations, we affirm the trial court‘s denial of Powell‘s motion to suppress.

In Brandon Philson v. State of Indiana , a 12-page, 2-1 opinion, Judge Vaidik writes:

Brandon Philson appeals his conviction for Class B felony child molesting. Brandon, who was seventeen years old at the time of the alleged offense, was charged in adult court with two counts of rape and three counts of child molesting pursuant to Indiana’s automatic jurisdiction statute, Indiana Code § 31-30-1-4. Rape is enumerated in the statute, but child molesting is not. The child molesting charges, however, were properly joined with the rape charges pursuant to another subsection of the statute. Brandon was ultimately acquitted of both rape charges and two of the three child molesting charges. He argues that once he was acquitted of the rape charges, which are the charges upon which the trial court’s automatic jurisdiction was based, jurisdiction should have vested in the juvenile court. Because Indiana Code § 31-30-1-4 does not provide any mechanism for transferring jurisdiction to the juvenile court if a defendant is acquitted of the offense upon which the adult court’s automatic jurisdiction is based but convicted of a joined offense, we affirm the trial court. * * *

Other state legislatures have addressed this scenario head-on, and we implore our legislature to do so. For example, the State of Washington’s legislature amended its statute in 2005 to provide that if a juvenile is acquitted of the offense upon which the adult court’s jurisdiction is based but convicted of a non-enumerated crime, jurisdiction transfers to the juvenile court for disposition. State v. Posey, 167 P.3d 560, 563-64 (Wash. 2007) (citing Wash. Rev. Code § 13.04.030(1)(E)(II)). The rationale for Washington’s amendment is to keep juveniles in the juvenile system to allow creative intervention at the juvenile justice level and to maintain its policy of treating juveniles and adults differently. Id. at 563.

However, as it now stands, Indiana Code § 31-30-1-4 plainly and unambiguously provides that a juvenile court does not have jurisdiction over an individual (who was at least sixteen years old at the time of the alleged violation) for an alleged violation of an offense listed in subsections (a)(1)-(12) and any offense that may be joined with it pursuant to subsection (a)(13). There is no language in the statute providing for a return of jurisdiction to the juvenile court if the defendant is acquitted of an offense listed in subsections (a)(1)-(12) but convicted of an offense joined with it pursuant to subsection (a)(13). Though we sympathize with Brandon’s situation, we will not read such language into the statute. The trial court properly exercised jurisdiction over him. We therefore affirm.

CRONE, J., concurs.
KIRSCH, J., dissents with separate opinion: I believe the trial court abused its discretion in denying the motion to sever. Accordingly, I respectfully dissent.

NFP civil opinions today (5):

John M. Stull, Betty J. Stull, and Travis W. Pickavet Trust v. John A. Wolff and Rosemary Wolff (NFP) - "In sum, we affirm the judgment against John Stull and in favor of the Wolffs on the Wolffs‟ trespass counterclaim, the award of $8,000.00, and the denial of Rosemary‟s request for attorney‟s fees. We reverse the trial court‟s judgment against Betty and the Trust on the Wolffs‟ trespass counterclaim."

Carmen Prickett v. Wanda Prickett (NFP) [Still unavailable for pasting quotes]

Rosemary Dean v. William Pelham, Rep. of the Estate of William McNatt (NFP) - "The designated evidence establishes, as a matter of law, that Dean was a party to Account 8291, and thus, Dean was entitled to the statutory presumption of rights of survivorship. Further, the designated evidence does not clearly and convincingly establish that William‟s intent was contrary to the statutory presumption of survivorship rights. We therefore conclude that there are no genuine issues of material fact and Dean is entitled to judgment as a matter of law. We remand to the trial court with instructions to grant summary judgment in favor of Dean."

In Re: Termination of Parent-Child Relationship of A.B., Z.W. and A.P. (NFP) - "Zachary W. (“Father”) appeals the involuntary termination of his parental rights, in Fountain Circuit Court, to his son, A.B. On appeal, Father claims there is insufficient evidence supporting the trial court’s judgment terminating his parental rights to A.B. Concluding that the trial court’s judgment is supported by clear and convincing evidence, we affirm."

Dennis Hoffman, Merle Hoffman, Eric Harvey, and Angela Harvey v. WCC Equity Partners, LP (NFP) - "Dennis Hoffman, Merle Hoffman, Eric Harvey, and Angela Harvey (collectively, “the Neighbors”) appeal the trial court’s entry of partial summary judgment in favor of WCC Equity Partners, L.P. (“WCC”). We reverse and remand.

"The Neighbors and WCC raise three issues, which we restate as follows: I. Does the economic loss doctrine bar the Neighbors from recovering economic damages pursuant to their claim of negligence against WCC? II. Does the law of the case doctrine require us to affirm the trial court’s decision? III. Does the doctrine of res judicata prevent this Court from reviewing the appealed order in this case? "

NFP criminal opinions today (18):

State of Indiana v. Jason Cioch (NFP)

Domenise Drane v. State of Indiana (NFP)

William T. Gillam v. State of Indiana (NFP)

Steve Toby v. State of Indiana (NFP)

Brian A. Mouser v. State of Indiana (NFP)

Terrance E. Fields v. State of Indiana (NFP)

Richard Gephart v. State of Indiana (NFP)

Corey Fingers v. State of Indiana (NFP)

Mark Roggenkamp v. State of Indiana (NFP)

Robert D. Booker, Jr. v. State of Indiana (NFP)

Michael G. Bonaventura v. State of Indiana (NFP)