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Thursday, April 16, 2009

Ind. Decisions - Court of Appeals issues 1 today (and 6 NFP)

For publication opinions today (1):

In Devone Moore v. Damon Moore (Marion Sup. Ct., Judge Certo), a 13-page opinion, Judge Robb writes:

DeVone Moore appeals the trial court’s issuance of an order for protection. For our review, DeVone raises four issues, which we consolidate and restate as whether the trial court properly issued the protective order in accordance with the Indiana Civil Protection Order Act (“CPOA”), Indiana Code chapter 24-26-5. Concluding the order for protection is defective, we remand with instructions. * * *

The trial court specifically found that DeVone proved by a preponderance of the evidence that domestic or family violence had occurred sufficient to justify an order of protection and that Damon represents a credible threat to DeVone’s safety, and the evidence supports these findings. The only question, then, is whether the trial court granted DeVone the protection she sought and the protection necessary to bring about a cessation of the violence or threat of violence. * * *

[Contact Between the Parties] Initially, we note that the trial court made reference to an alternative “no violent contact order.” No standard form for such an order has been created by the division of state court administration, and there is no mention of such an order in the CPOA, in Marion County’s local rules, or in the Protection Order Deskbook.8 In addition, the trial court issued an order for protection using the standard form authorized by the CPOA. Not only does the trial court’s discussion of this alternative order confuse us, it obviously confused DeVone, who had difficulty understanding the relief being offered and communicating the relief she sought. * * *

The trial court’s order does not adequately address DeVone’s concerns with continual harassment and annoyance from Damon regarding the prospect of reunifying, or her concern that he not be allowed to simply stop by the apartment anytime he likes. We hold that the order for protection does not provide the relief necessary to bring about a cessation of the violence or threat of violence as required by Indiana Code section 34-26-5-9(f). Therefore, we remand to the trial court to enter an order including the provisions in paragraphs two, prohibiting communication,10 and three, requiring Damon to stay away from DeVone’s residence11 and place of employment, of the standard form – PO-0112, Order for Protection. * * *

[Parenting Time] Based on the increased level of protection ordered above, the trial court’s order should include terms for unsupervised parenting time, including a provision for the exchange of the child in a neutral or public location. Therefore, we remand to the trial court to include terms for unsupervised visitation between Damon and the couple’s daughter with input from both parties.

[ Brady Disqualification ] Although the trial court’s order includes the boilerplate language preventing Damon from purchasing, receiving, or possessing a firearm, the trial court omitted the specific provision (paragraph eight) of the standard form, which states: “The Respondent is prohibited from using or possessing a firearm, ammunition, or deadly weapon.” In addition, the trial court erroneously checked no to the provision asking if the respondent is Brady disqualified, on the cover sheet. Therefore, we remand to the trial court to include paragraph eight of the standard form in its order and to check “yes” in the Brady disqualified box on the cover sheet. * * *

The trial court’s order of protection is erroneous in that it does not provide the protection necessary to bring about a cessation of the violence or threat of violence, it fails to address the issue of parenting time, and it fails to implement the Brady law’s prohibition on the purchase, receipt, or possession of a firearm by Damon. * * * Remanded with instructions.
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A lengthy footnote 7 begins "Our review of this case has uncovered an issue of possible confusion regarding the issuance of protective orders.."

NFP civil opinions today (0):

"No standard form for such an order has been created by the division of state court administration, and there is no mention of such an order in the (Indiana Civil Protection Order Act), in Marion County's local rules, or in the Protection Order Deskbook."

NFP criminal opinions today (6):

Rio P. Harper v. State of Indiana (NFP)

Vanessa Thompson v. State of Indiana (NFP)

Brandon French v. State of Indiana (NFP)

Brian Williamson v. State of Indiana (NFP)

Charles Rivers v. State of Indiana (NFP)

Darrell Avery v. State of Indiana (NFP)

Posted by Marcia Oddi on April 16, 2009 01:15 PM
Posted to Ind. App.Ct. Decisions