The Indiana Law Blog: Ind. Decisions - Court of Appeals issues 5 today (and 19 NFP)

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Wednesday, February 17, 2010

Ind. Decisions - Court of Appeals issues 5 today (and 19 NFP)

For publication opinions today (5):

In Term. of Parent-Child Rel. of I.B.; M.L. v. IDCS , a 12-page opinion, the issue is the trial court’s denial of the motion to appoint appellate counsel to appeal the termination of Mother’s parental relationship with I.B. This opinion affirms the denial. Judge Darden writes:

Appellant counsel’s extremely brief argument is that because the Indiana statute provides for appointment of counsel “in proceedings to terminate the parent-child relationship,” citing to Indiana Code section 31-32-4-3, and “one’s right to parent one’s children” has “Constitutional implications,” it is reasonable that the parent’s “right to counsel should extend to appellate review of” the judgment terminating that relationship. Other than to suggest that our standard of review is that applied when interpreting a statute, the brief provides no further citation to authority or development a cogent argument in support of the proposition presented. Accordingly, we are not persuaded. * * *

As our Supreme Court held, before the statute was amended to read as provided above, “the decision to appoint counsel for an indigent litigant in a civil case turns on the court’s assessment of the nature of the case, the genuineness of the issues, and any other factors that bear on the wisdom of mandating public funds for that purpose.” Sholes v. Sholes, 760 N.E.2d 156, 159 (Ind. 2001). To prevail on an argument that the trial court should have assigned counsel pursuant to the current statute, the “burden is on the party seeking to proceed as an indigent person to demonstrate that he meets the statutory requirements for the appointment of counsel.” Maust v. Estate of Bair ex rel. Bair, 859 N.E.2d 779, 785 (Ind. Ct. App. 2007) (citing Sholes, 760 N.E.2d at 160). Clearly Mother, who as the trial court noted has not even “requested” the appointment of counsel to appeal the termination order, has not carried her burden.

Anthony J. Harris v. Teasha J. Harris - "For the foregoing reasons, we reverse the trial court's order denying Husband's motion to correct errors on the basis that Husband failed to properly preserve his claim that the court lacked personal jurisdiction, affirm the trial court's decree of dissolution as to the court's order dissolving the marriage of the parties and changing the status of the parties from married to unmarried, reverse the trial court's decree as to those portions adjudicating the incidences of marriage as set forth herein, and reverse the trial court's decree as to its award of custody of the parties' minor child to Wife and remand with instructions to comply with the provisions of the Servicemembers Civil Relief Act in the child custody proceedings and to make a decision on jurisdiction in accordance with the requirements of Indiana's Uniform Child Custody Jurisdiction and Enforcement Act."

In Rita D. Terry, et al. v. Norris Stephens, R.N. , a 15-page opinion, Chief Judge Baker writes:

The appellants argue that the children of a parent who provides love, care, and affection, but no financial or non-financial support, should be considered dependent children pursuant to the Wrongful Death Act. Here, a father was mentally ill to the extent that he could not support himself or anyone else. He had essentially no contact with his children in the last six years of his life. After he died, his estate filed a wrongful death claim that the trial court dismissed on summary judgment. Although we do not intend to minimize the intangible value of a parent's love and affection, the Wrongful Death Act is based on pecuniary value—and pecuniary loss. Here, the father never did, and never would, be able to support his children; thus, there was no pecuniary loss. Summary judgment was properly entered in the defendant's favor.

In Involuntary Commitment of J.W.B. , a 6-page opinion, Judge Bailey writes:

The Indiana Family and Social Services Administration (“State”) challenges a single sentence of the trial court’s order for the continued civil commitment of J.W.B. The State argues that it, rather than the trial court, has authority to control whether a civilly committed person is transferred within a facility. Concluding that the General Assembly has placed this authority with the Executive Branch, rather than the Judicial Branch, we reverse and remand. * * *

It is clear from the plain language of Chapters 11, 12, and 15 [ILB - of IC 12-26] that the superintendent of a facility controls whether to transfer an individual, where to transfer the individual, and whether to discharge an individual. The trial court can require the superintendent to provide certain notices, consider disputes regarding the superintendent’s decision, and, upon submission of a superintendent’s review, decide whether to continue or terminate the commitment. Thus, the authority to decide where an individual should receive treatment and the responsibility for that decision rest with the superintendent of the facility. The trial court therefore exceeded its statutory authority in issuing the appealed order.

Paternity of R.; T.G. and V.G. v. State of Indiana is the "Infant R" case, where the trial court denied a petition to establish paternity and maternity in T.G. and V.G upon finding that "Indiana law does not permit a non-birth mother to establish maternity. Indiana law holds the birth mother is the legal maternal mother." (For more background, see this ILB entry from Jan. 28th.) In today's 6-page opinion, Judge Bailey writes:

A sole issue is presented for review: whether the trial court erroneously denied the petition, which sought to establish V.G., as opposed to D.R., as the legal mother of Baby R. * * *

[N]o legislation enacted in this State specifically provides procedurally for the establishment of maternity; it is presumed that a woman who gives birth to a child is the child’s biological mother. * * *

Nonetheless, we are confronted with reproductive technologies not contemplated when our Legislature initially sought to provide for the establishment of legal parentage for biological parents. Now, however, reproductive technologies have advanced to provide for gestational surrogacy where an egg from the biological mother is artificially inseminated with the sperm of the father and implanted into a host womb for incubation until birth. The State of Indiana asserts that equitable relief may be afforded in these particular circumstances.

Alternatively, T.G., V.G., and D.R. assert that Indiana’s paternity statutes may be construed so as to apply equally to T.G. and V.G., to facilitate the establishment of Baby R.’s biological parentage. While we conclude that the public policy for correctly identifying biological parents is clearly evinced in our paternity statutes, it does not follow that we must embark on a wholesale adoption and application of these statutes in order to provide relief under the narrow set of circumstances we are presented with today. Rather, it is for the Legislature to evaluate and deliberate comprehensive proposals for changes to these statutes. Nevertheless, the public policy embodied therein, together with the unique factual circumstances presented, suggest that equity should provide an avenue for relief in this case. * * *

We are aware of no reason why the public interest in correctly identifying a child’s biological mother should be less compelling than correctly identifying a child’s biological father. * * * In these narrow circumstances, we find that the paternity statutes provide a procedural template to challenge the putative relationship between the infant and D.R.

Procedure aside, this presumptive relationship will stand unless V.G. establishes that she is, in fact, the biological mother of Baby R. She must do so by clear and convincing evidence. Cf. Vanderbilt v. Vanderbilt, 679 N.E.2d 909, 911 (Ind. Ct. App. 1997) (finding that a presumption of paternity of a child born in a marriage may be rebutted by direct, clear, and convincing evidence that the husband was excluded as the child’s father based upon blood test results), trans. denied. Clearly, this would involve more than simply an affidavit or a stipulation between the affected parties.

We reverse and remand with instructions for the trial court to conduct an evidentiary hearing and, assuming that V.G. is shown by clear and convincing evidence to be the biological mother of Baby R., grant all other relief just and proper under the circumstances.

NFP civil opinions today (4):

Lonnie M. Randolph v. Larry Hunter (NFP)

Term. of Parent-Child Rel. of W.N., et al.; S.N. and N.N. v. IDCS (NFP)

Term. of Parent-Child Rel. of A.A.; W.M. v. IDCS (NFP)

K.C. v. Review Board (NFP)

NFP criminal opinions today (15):

Samuel R. Via, III v. State of Indiana (NFP)

Kyle Smith v. State of Indiana (NFP)

Brian Gavin v. State of Indiana (NFP)

David Burks-Bey v. State of Indiana (NFP)

Jerrod Ford v. State of Indiana (NFP)

Bruce A. Waldon v. State of Indiana (NFP)