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Wednesday, March 03, 2010

Ind. Decisions - Court of Appeals issues 3 today (and 8 NFP)

For publication opinions today (3):

In Term. of Parent-Child Rel. of K.L.; D.L. v. IDCS , a 12-page opinion, Judge Friedlander writes:

D.L. (Father) appeals from the trial court’s refusal to set aside the judgment terminating his parental rights. * * * Did the trial court abuse its discretion in refusing to set aside the judgment terminating Father’s parental rights? We reverse and remand. * * *

It remains, however, that all advisements and questions were clouded by the misrepresentation contained in the home study report and the TCDCS’s subsequent actions that served as the basis for K.L.’s placement with Ann and Glen and the TCDCS approval of the permanency plan calling for K.L.’s adoption by Ann and Glen. Father was not the only party moving forward in K.L.’s best interest in reliance upon the misrepresentation made by an employee of the TCDCS. It seems safe to say that had FCM Huck adequately searched the DCS records, K.L. never would have been placed in Ann and Glen’s home and the possibility of adoption of K.L. by Ann and Glen would not have been the deciding factor in Father’s decision to terminate his parental rights. Under these circumstances, we find that Father’s consent to voluntarily terminate his parental rights was vitiated by the misrepresentations made by the TCDCS through FCM Huck. Therefore, the petition to set aside the judgment terminating his parental rights should have been granted.

In Robert Keck and Janet Russell v. Mary Ann Walker, a 13-page opinion, Judge Mathias writes:
Robert F. Keck (“Keck”) and Janet L. Russell (“Russell”) (collectively “the Plaintiffs”) filed a complaint in Ripley Circuit Court against Mary Ann Walker, individually and as the personal representative of the Estate of Edith M. Dawdy (“the Estate”), challenging the validity of the probated will and codicils of the decedent. The trial court granted summary judgment in favor of the Estate. The Plaintiffs appeal and claim that the trial court erred in concluding that the bequest to their deceased mother lapsed. We affirm. * * *

We hold that the bequest made to Luella lapsed when she predeceased Dawdy, and the share that Luella would have received should instead go to the remaining residuary beneficiaries. See Carey v. White, 126 Ind.App. 418, 424-25, 126 N.E.2d 255, 257 (1955) (where testator gave one-third interest of residue of his estate to three named, non-descendant beneficiaries, and one of these beneficiaries predeceased the testator, the devise to the deceased beneficiary lapsed and the remaining two residual beneficiaries each received one-half of the lapsed one-third interest, in addition to their one-third interest, for a total of one-half of the residual estate). The trial court did not err in granting summary judgment in favor of the Estate.

Robert Spivey v. State of Indiana - "Spivey’s specific challenge is that the evidence in the record did not support the giving of the instruction setting forth the rebuttable presumption that he knew his driving privileges were suspended. The State argues that it provided evidence meeting the requirements for establishing the rebuttable presumption. The State points out that Spivey’s driving record indicates the notice of suspension had a “Mail Date” of January 16, 2008. State’s Exhibit 1. The State argues that the record need not specifically indicate the notice was sent by first class mail, but that showing a “Mail Date” is sufficient. We agree with the State.

"To establish the rebuttable presumption that the defendant knew of his license suspension, I.C. § 9-24-19-8 requires the BMV to have sent notice by first-class mail to the defendant’s last known address. Spivey does not contest that he had lived at the address in the BMV records on the date his driving record shows that notice of his suspension was sent to that address and that he had lived at that address for ten years. Further, it is common knowledge that the general method of mailing a letter is through the United States Postal Service via first-class mail. The State introduced into evidence Spivey’s driving record that clearly indicated that notice of his suspension had a “Mail Date” of January 16, 2008, from which the trier of fact may reasonably infer that the notice was sent via first-class mail. The State’s evidence supported the giving of the final instruction setting forth the rebuttable presumption that Spivey had knowledge that his license had been suspended when he committed the instant offense."

NFP civil opinions today (2):

Stephen Engel v. City of Plymouth (NFP)

Term. of Parent-Child Rel. of A.H. et al.; Tr.S. and Te.S. v. IDCS (NFP)

NFP criminal opinions today (6):

Zachary Gootee v. State of Indiana (NFP)

Tony Broomfield v. State of Indiana (NFP)

Joshua Maurer v. State of Indiana (NFP)

Howard Cannady v. State of Indiana (NFP)

Michael A. McCoy v. State of Indiana (NFP)

Dwight Sargent v. State of Indiana (NFP)

Posted by Marcia Oddi on March 3, 2010 12:06 PM
Posted to Ind. App.Ct. Decisions