Indiana Court Decisions – Jan. 23-Feb. 5, 2013

7th Circuit Court of Appeals

Jan. 23

Civil – Sex Offenders/Social Networking

John Doe v. Prosecutor, Marion County, Indiana

12-2512

Indiana Code 35-42-4-12 prohibiting certain sex offenders from using social networking sites that allow minors to participate is not narrowly tailored to serve the state’s interest, the 7th Circuit Court of Appeals held. The judges ordered a permanent injunction entered preventing enforcement of the current law.

John Doe, a Marion County man who is a convicted sex offender not on supervised release, filed this lawsuit on behalf of himself and other similarly situated people who would be banned from using certain social media, like Facebook, or chat rooms or instant messaging under the law. Doe wanted to be able to monitor his teenage son’s Facebook account, as well as use social media for business purposes.  

U.S. Judge Tanya Walton Pratt ruled in June 2012 that the law is not unconstitutional and that Doe and others have alternative channels of social media communication they could use, such as blogging or posting on message boards. She noted that this law aims to prevent and deter sexual exploitation of minors by certain sex offenders whereas other laws that prohibit online solicitation of children aim to punish those who have already committed the crime of solicitation.

The 7th Circuit found the law to be content neutral but is not narrowly tailored. The law targets “substantially more activity than the evil it seeks to redress,” Judge Joel Flaum wrote. Indiana has other methods to combat unwanted and inappropriate communication between minors and sex offenders and those statutes have enhanced penalties for using a computer network and “better advance Indiana’s interest in preventing harmful interaction with children (by going beyond social networks.)”

The 7th Circuit noted that the General Assembly could more precisely target illicit communication or increase the sentences for solicitation.

Flaum also wrote this decision should not be read to affect the District Court’s latitude in fashioning terms of supervised release or states from implementing similar solutions.

“We conclude by noting that Indiana continues to possess existing tools to combat sexual predators. The penal system offers speech-restrictive alternatives to imprisonment. Regulations that do not implicate the First Amendment are reviewed only for a rational basis. The Constitution even permits civil commitment under certain conditions. But laws that implicate the First Amendment require narrow tailoring. Subsequent Indiana statutes may well meet this requirement, but the blanket ban on social media in this case regrettably does not,” he wrote.
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 Feb. 1

Civil – Prisoner/Eighth Amendment

Eugene Devbrow v. Dr. Eke Kalu, et al.

12-2467

A lawsuit filed by a prisoner at the Pendleton Correctional Facility against two prison doctors and a nurse after he learned he had prostate cancer is allowed to continue after the 7th Circuit Court of Appeals reversed the dismissal of his suit.

The District Court dismissed Eugene Devbrow’s 42 U.S.C. Section 1983 suit for deliberate indifference to serious medical needs in violation of the Eighth Amendment for being untimely. Devbrow alerted prison officials of his need to be tested for prostate cancer within two to four years when he entered the prison system. In February 2004, a PSA test showed an elevated PSA but Dr. Eke Kalu did not order a biopsy until April 2005. A follow-up biopsy six months later revealed Devbrow had prostate cancer that had spread to his spine, severely limiting his treatment options.

Devbrow filed his lawsuit Oct. 19, 2007, but Judge Larry McKinney dismissed it as untimely, reasoning that Devbrow should have filed his suit within two years of April 2005 when the biopsy was ordered. On appeal, the defendants contend the deliberate indifference ended in April 2007, so Devbrow could have sued for nominal or presumed damages even without a physical injury.

But Devbrow’s suit seeks redress for a concrete physical injury, not probabilistic future harm or an abstract injury, the 7th Circuit pointed out.

“The statute of limitations for a § 1983 deliberate-indifference claim brought to redress a medical injury does not begin to run until the plaintiff knows of his injury and its cause. Judged by that standard, Devbrow’s suit is timely,” Judge Diane Sykes wrote. “He did not know of his injury in April 2005 when the defendants finally ordered a biopsy; he discovered it six months later when he learned he had cancer that might have been diagnosed and treated earlier but for the defendants’ deliberate indifference. The limitations period runs from that discovery, and Devbrow filed suit just before the time expired.”

Indiana Supreme Court

Jan. 24

Criminal – Burglary/Evidence

Carlin Iltzsch v. State of Indiana

49S02-1301-CR-57

A divided Indiana Supreme Court ordered a new hearing for a man convicted of burglary whose restitution order had been thrown out by the Court of Appeals because of insufficient evidence to support the amount of the award.

Chief Justice Brent Dickson dissented in a 4-1 opinion issued in which the court also determined that restitution orders are subject to Supreme Court review and remand when evidence is lacking.

Carlin Iltzsch was convicted in Marion Superior Court of burglary, adjudicated a habitual offender, and sentenced to 22 years in prison. He also was ordered to pay restitution to the victim of $711.95 for damage to a television and destruction of an antique record collection.

Iltzsch’s attorney at first did not object to the restitution request, but subsequently did, citing his client’s insistence that he was innocent. A divided panel of the Court of Appeals vacated the restitution order because it ruled evidence was lacking. “Allowing the State to conduct a new restitution hearing and to present additional evidence concerning the loss would allow the State an inappropriate second bite at the apple,” the COA held, citing Cooper v. State, 831 N.E.2d 1247, 1253-54 (Ind. Ct. App. 2005).

“As Judge (Mark) Bailey pointed out in his dissent, though, it appears the restitution in Cooper involved a claim for lost wages by the parents of the victim that simply were not recoverable under the statute, so there would have been no reason for remand. We do not find Cooper persuasive authority for prohibiting a remand for a restitution hearing under the circumstances of this case,” reads the per curiam opinion.

“This case is remanded to the trial court with instructions to conduct a new restitution hearing at which the State will be permitted to present, and Iltzsch will be allowed to confront, any additional evidence supporting the victim’s property loss.”

Indiana Court of Appeals

Jan. 23

Civil Tort – Parental Rights/DCS

D.L., Glen Black, Ann Black, Steven Lucas, and K.L., by her Next Friend, D.L. v. Christine Huck, Laura Zimmerman, Angela Smith Grossman, Rhonda Friend, Angyl McClaine, and IN. Dept. of Child Svcs.

79A04-1202-CT-61

The Indiana Court of Appeals granted the rehearing petitions of the Department of Child Services and a family who had a child removed from their care and re-examined the family’s federal civil rights claims and claims under the Indiana Tort Claims Act. The judges also chided DCS’ counsel for submitting a new document in the petition for rehearing that was not part of the record on appeal.

DCS petitioned for rehearing on the October 2012 decision in which the appellate court denied DCS quasi-judicial immunity. Glen Black and other family members sued DCS and several employees after the DCS appeared unannounced at Glen and Ann Black’s home and removed K.L. from their custody. The Blacks sought to adopt K.L., but DCS said it found a child abuse report against Glen Black from 20 years prior. DCS never investigated the report further and declined to place K.L. with her grandfather. She was instead returned to her biological father, D.L.

“DCS knew that quasi-judicial immunity was an issue on appeal — in fact DCS itself first supplied the notion of quasi-judicial immunity in its memo in support of the motion to dismiss — and yet failed to provide or even refer to this document to the trial court, or to us in its reply on appeal, at oral argument, or by a motion to supplement the record at any time during the appeal. It seems that this is one more example of the ball being dropped by DCS in this case, and DCS may not supplement the record now,” Chief Judge Margret Robb wrote.

Turning to the family’s petition for rehearing, the judges found that their interpretation of Indiana Code 31-25-2-2.5 does not conflict with the Indiana Tort Claims Act. Read together, a suit against DCS as an entity should be allowed to proceed even if vicarious and even if the suit against the employee is barred, but only for those claims that fall within the ITCA. All other vicarious liability against DCS would be extinguished under I.C. 31-25-2-2.5.

The Court of Appeals allowed tort claims against DCS to proceed under a theory of vicarious liability within the ITCA. It also allowed federal civil rights claims to proceed.

The judges affirmed that grandfather Steven Lucas does not have standing to assert a claim for DCS’ failure to consider him for home placement. DCS has no obligation to place K.L. with Lucas and it appears that DCS did consider him but felt he was not suitable to care for the child.

Civil Plenary – Parole/Restricted Access to Children

David Bleeke v. State of Indiana, Edwin G. Buss, Gregory Server, Randall P. Gentry, Thor R. Miller, Valerie J. Parker, William R. Harris, Mia Kelsaw, Damita VanLandingham, and Susan Feasby

02A05-1201-PL-25

Several conditions of a man’s parole following his conviction of criminal deviate conduct involving an adult – including prohibitions on spending time with his own children – were found to be overbroad or vague by the Indiana Court of Appeals. The judges reversed the grant of partial summary judgment in favor of the Indiana Parole Board and other defendants on David Bleeke’s complaint for declaratory and injunctive relief.

As part of his parole, the parole board imposed conditions that prevented him, as a sex offender, from working or volunteering at any attraction designed to be enjoyed by children under 16. Additional conditions listed on his standardized form – conditions 4, 5, 17, and 19 – prohibited him from associating with minors, including his own children and step-children.

Bleeke filed a complaint in federal court challenging similar aspects of his parole, which led to the parole board holding a special hearing as a result of a court order. The federal court preliminary enjoined the parole board from enforcing conditions 4, 5, 17, and 19 with regard to his children and stepchildren. Bleeke presented evidence from his Sex Offender Management and Monitoring Program supervisor and others that he posed no risk to children. The board decided to uphold all the parole conditions previously imposed.

That’s when Bleeke filed his complaint in Allen County, leading to this appeal. Before a final judgment was issued in this case, he moved to Ohio to be closer to his wife and children. In 2011, Allen Superior Judge Nancy Eshcoff Boyer converted the preliminary injunction regarding his own family to a permanent injunction, but granted summary judgment to the parole board on all other issues raised by Bleeke.

The Court of Appeals found that Bleeke shouldn’t be considered as an offender against children based on his criminal deviate conduct conviction because that statute dictating that classification is only applicable to offenses committed after July 1, 2006. Bleeke committed sexual deviate conduct in 2002.

The judges pointed out that the parole board witnesses presented evidence that Bleeke isn’t a danger to children, so I.C. 13-11-3-4(g)(2)(D), which limits legitimate conduct regarding employment and association, is overbroad as applied to Bleeke. They found other conditions were also either overbroad or vague as applied to him, including condition 8 that Bleeke may not visit businesses that sell sexual devices or aids.

The appellate court also found that by participating in the SOMM program, he may be forced to incriminate himself or else risk probation revocation. The SOMM program’s requirements violate the Fifth Amendment, Senior Judge Carr Darden ruled.

The judges sent the case back to the trial court with instructions that it vacate summary judgment for the parole board and enter summary judgment in favor of Bleeke; enter an order enjoining the parole board from enforcing any conditions premised on the idea that Bleeke is a danger to minors; enter an order enjoining the parole board from enforcing parole conditions 8, 15, 17 and 19; and enter an order enjoining the board from requiring Bleeke to incriminate himself as part of the SOMM program.
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Jan. 24

Criminal – Credit Restricted Felon

Danny Boling v. State of Indiana

20A04-1205-CR-237

The Indiana Court of Appeals reversed the determination that an Elkhart County man was a credit restricted felon following his conviction of attempted molestation of his daughter, finding attempted child molestation isn’t included among offenses that qualify under the credit restricted felon statute.

Danny Boling was convicted of Class A felony attempted child molesting and Class C felony child molesting for touching his five-year-old daughter over and under her underwear and putting her hand on his bare private. He was sentenced to 45 years, and Elkhart Superior Judge George Biddlecome found Boling was a credit restricted felon pursuant to Indiana Code 35-31.5-2-72(1).

Boling challenged his attempted child molesting conviction, sentence and credit restricted felon status. The judges found the state proved that Boling knowingly attempted to commit child molesting and engaged in an overt act constituting a substantial step toward that crime when he touched his daughter’s private parts first over her underwear, then directly on her skin.

The trial court relied on the Class A felony conviction to rule Boling is a credit restricted felon, but attempted child molesting involving deviate sexual conduct is not listed as a qualifying offense nor is the attempt statute cited. The judges reversed and remanded for the trial court to correct Boling’s records to remove the credit restricted felon designation.

Finally, the judges upheld his 45-year sentence, citing he was in a position of trust and tried to have the child place the blame on her brother.
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Jan. 25

Criminal – Child Exploitation

David Delagrange v. State of Indiana

49A04-1203-CR-144

A man who secretly photographed minor girls in their underwear is not guilty of child exploitation because those girls were not intentionally exhibiting themselves, a divided Indiana Court of Appeals has ruled.

David Delagrange was convicted of four counts of Class C felony attempted child exploitation after he was caught surreptitiously photographing underneath the skirts of several females, including four minors. Delagrange had outfitted his shoe with a video camera and went to Castleton Square Mall to take pictures of panties, boots and high heels of adult women.

Delagrange appealed on the grounds the trial court erred when it denied his motion for directed verdict. He argued the charging information does not constitute crimes of attempted child exploitation.  

The COA reversed the four counts of child exploitation and remanded to the trial court for proceedings.

For its ruling, the COA turned its attention to Ind. Code 35-42-4-4(b)(1). The court focused on the definitions of “sexual conduct” and the phrase “by a child.”

The majority found “the phrasing of the statute demands the child be performing the sexual conduct, which herein required the child be exhibiting her uncovered genitals with the intent to satisfy someone’s sexual desires.” Because the state did not present any evidence that the victims intentionally exhibited themselves, the trial court should have directed a not guilty verdict.

Judge Edward Najam Jr. dissented, arguing that the phrase, “sexual conduct by a child,” does not mandate any active participation by the minor.

“…the child exploitation statute cannot be interpreted to require that a child be an active participant in the exhibition of her genitals or that the child have the intent to satisfy sexual desires,” Najam wrote. “Such an interpretation improperly focuses the elements of the crime on the actions of the child and undermines the very foundation of the statute, which was designed to protect children.”

Juvenile – Parental Rights/Due Process

Term. of the Parent-Child Rel. of: D.T., (Minor Child), and T.S. (Father) v. The Indiana Dept. of Child Services

49A02-1205-JT-420

A 15-year-old who fathered a child was not deprived due process because a guardian ad litem wasn’t appointed for him during proceedings in which his parental rights were terminated.

“We conclude that any risk of error created by not providing Father with a GAL was low,” Chief Judge Margret Robb wrote for a Court of Appeals panel.

Guardians ad litem were appointed in the matter for the mother and the child, according to the record. The mother was represented because of her lower cognitive abilities; the child because of developmental disabilities that required regular therapy after spending his first five months on a feeding tube.

The opinion notes that the father T.S., who since has been charged with multiple felonies as a juvenile, at first expressed he wanted nothing to do with the child and refused to participate in services. He later said he wanted to work toward having the child in his home, but he continued to disregard conditions set by the court.

“Father was given multiple chances to participate in services and learn to parent the Child, but declined to do so. The record indicates that Father chose not to participate in services, not that he did not participate because he was unaware that the proscribed steps were necessary if he wanted to maintain his relationship with the Child,” Robb wrote.

“The juvenile court properly determined that the best interests of the Child would be best served by terminating the relationship between Father and the Child and allowing the Child to be adopted. There was no fundamental error, and Father’s due process rights were not violated when the court failed to appoint a GAL to him.”

The panel took issue with the trial court allowing a hearing to proceed while T.S. was without counsel, and with a participation decree that required him to seek gainful employment and housing, among other things.

 “We observe that while the obligations were not well tailored to a minor, the court emphasized Father’s failure to meet obligations that were appropriate for a minor. Additionally, Father was given multiple referrals to multiple services throughout the eighteen months leading up to termination, in large part out of respect for his age. It was the sum total of Father’s lack of participation that largely informed the court’s opinion, and not choices that were made at any one hearing,” the panel ruled.
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Jan. 29

Miscellaneous – Copyright/Pirated Movies

Michael L. Curtis v. State of Indiana

49A02-1203-MI-271

In a reversal of a trial court’s ruling, the Indiana Court of Appeals held that a man who pleaded guilty to selling pirated movies should not have had his truck taken by the state because violating copyright is not the same as stealing goods.

Michael Curtis contended the trial court abused its discretion by denying his Indiana Trial Rule 60(B) motion for relief from judgment following the forfeiture of his truck. The COA reversed and remanded with instructions after finding Curtis had “established extraordinary circumstances” justifying relief. 

In December 2009, the state charged Curtis with four counts of Class D felony fraud for selling pirated movies from his truck. It later filed a compliant for forfeiture of Curtis’ truck under I.C. 34-24-1-1(a)(1)(B) (2009) which allows the seizure of vehicles if they are used to transport any stolen property worth $100 or more.

Curtis pleaded guilty in February 2011 to one count of fraud.

The state then filed a motion of summary judgment in the forfeiture action. The trial court granted the state’s motion and ordered the truck taken.

Subsequently, Curtis filed a Motion for Relief from Judgment Pursuant to Trial Rule 60(B)(1), (3), or (8). In the motion, Curtis again stated his attorney did not notify him of the forfeiture order. He also challenged the forfeiture on the grounds that the pirated movies did not constitute stolen property, specifically citing Dowling v. United States, 473 U.S. 207, 105 S. Ct. 3127, 87 L Ed. 2d 152 (1985).

The trial court denied the motion without a hearing. Curtis appealed, contending the trial court abused its discretion by denying his motion for relief from judgment.

The COA agreed with Curtis. It found, as Dowling held, that the property rights of a copyright holder are different than the same rights of an owner of goods, wares or merchandise. It also pointed to I.C. 34-24-1-1(a)(1)(B) which, the court held, clearly allows forfeiture in cases of theft or conversion but says nothing about copyright infringement or even fraud.

Since the forfeiture of the truck was not authorized by the statute, the COA concluded that Curtis had established extraordinary circumstances justifying relief.
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Jan. 30

Criminal – Reporting Child Abuse or Neglect/School

Christopher Smith v. State of Indiana

18A02-1204-CR-331

A split Indiana Court of Appeals decided that former Muncie Central High School principal Christopher Smith’s Class B misdemeanor conviction for failure to immediately report child abuse or neglect should be tossed out.

In November 2010, 16-year-old high school student G.G. reported to school officials that she had been raped in a bathroom by 16-year-old student S.M. Smith and other school leaders decided to investigate the claim before alerting police or the Department of Child Services because G.G. had allegedly previously faked a seizure and they did not want to ruin S.M.’s reputation.

The school immediately called G.G.’s guardian Youth Opportunity Center, as G.G. was placed there years earlier by DCS, so they could get consent for medical treatment. Smith believed by contacting YOC, DCS would also be notified. G.G. was taken to the hospital and evidence showed sexual contact. Smith called DCS approximately four hours after learning about the incident and told the agency he wasn’t sure if he was reporting abuse.

S.M. initially denied the claim, then said the sex was consensual, but eventually confessed to raping the teen.

Police initially investigated Smith for obstruction of justice, but later charged him with failure to immediately report child abuse or neglect. He was convicted as charged and on appeal argued that he and the other administrators involved didn’t think the incident involved child abuse since it was between two teenagers.

Judges Elaine Brown and L. Mark Bailey reversed, pointing to evidence that Smith had another administrator contact YOC, which immediately contacted DCS. They also found that a reasonable investigation into the claim made in good faith of such an allegation before making the report is not improper and doesn’t deprive Smith of statutory immunity.

Judge Nancy Vaidik argued in her dissent that Smith had reason to believe G.G. was a victim of child abuse and failed to immediately report it. She didn’t accept Smith’s claim he notified DCS immediately by virtue of the call to the YOC or the majority’s decision that permits verification of a child’s allegations of abuse before making a report.

“I believe such a verification process is contrary to statute and, if permitted, may have the highly undesirable result of suppressing or deterring reports of abuse,” she wrote. 
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Jan. 31

Civil Tort – Wrongful Death Act/First Impression

Virginia E. Alldredge and Julia A. Luker, as Co-Personal Representatives of the Estate of Venita Hargis v. The Good Samaritan Home, Inc.

82A01-1206-CT-249

The Wrongful Death Act’s two-year limitations period is tolled by fraudulent concealment, and plaintiffs whose wrongful death claims have been fraudulently concealed beyond the act’s limitations period have a full two years after the concealment is or should be discovered with reasonable diligence to file their claims, the Indiana Court of Appeals held in a case of first impression.

Venita Hargis was a resident of The Good Samaritan Home, a nursing home in Evansville, in November 2006 when the staff told her daughter Julia Luker that Hargis fell and had to go to the hospital. The explanation was plausible because Hargis suffered from “mini-strokes.” She died Nov. 26, 2006, from a head injury from the alleged fall. In November 2009, a former employee of the nursing home told another daughter, Peggy McGee, that Hargis had been attacked by another resident, which caused her fall and head injury that led to her death.

An estate was opened for Hargis in December 2010 and the plaintiffs filed their complaint under the Wrongful Death Act Oct. 27, 2011. They alleged Good Samaritan fraudulently concealed the true cause of Hargis’ death. Good Samaritan fought the suit, arguing the plaintiffs waited more than two years after Hargis’ death to file the complaint.

The trial court concluded that the WDA’s two-year deadline had been equitably tolled but that the plaintiffs failed to file their complaint within a reasonable time. The judge granted summary judgment for Good Samaritan.

In the appellate court agreed with the trial court’s reasoning that the deadline was tolled, but found fraudulent concealment allows plaintiffs a full two years after the concealment is discovered to file their wrongful death claims.

“We see no reason to impose a shorter period of time in the wrongful death context when the reason for the plaintiff’s failure to discover the action within the WDA’s two-year limitations period is the fault of the defendant rather than simply the result of a medical condition’s long latency period,” Judge John Baker wrote. “In short, it is abhorrent to think that we would treat people who have been intentionally defrauded regarding their loved one’s deaths worse than others … where the defendant’s misfeasance has been undiscovered merely on account of nature’s own time frame.”

A decedent’s personal representative shall be allowed to bring the action within the lesser of two years from the date of the discovery of the cause of the action or two years from the discovery of facts that, in the exercise of reasonable diligence, should lead to the discovery of the wrongful act or omission that resulted in the death.

In coming to its conclusion, the judges avoided holding that the WDA’s two-year statute of limitations period is unconstitutional as applied to the plaintiffs – as they argued – under the Indiana or U.S. Constitutions.

The case is remanded for continuation of the litigation.•