Indiana Court Decisions – Oct. 15-28, 2014

For Publication opinions on Indiana cases released by the 7th Circuit Court of Appeals and the Indiana Supreme Court, Court of Appeals and Tax Court during this issue’s reporting period are highlighted in this section. To read the complete opinion issued in any of these cases, visit www.theindianalawyer.com and search by case name.

7th Circuit Court of Appeals

Oct. 15

Civil – Inmate/Medical Care

Randy M. Swisher v. Porter County Sheriff’s Dept., et al.

13-3602

The 7th Circuit Court of Appeals reversed judgment in favor of jail officials on an inmate’s complaint that he was denied medical access while in jail. The judges did not agree with the magistrate judge’s decision that Randy Swisher had failed to exhaust his administrative remedies by not filing a written grievance.

Swisher sued Porter County jail officials, alleging violations of 42 U.S.C. Section 1983 because he was denied medical care for a bullet wound to his stomach and other care while awaiting trial. Swisher had complained of his lack of medical care, but jail officials never gave him a grievance form to file a formal complaint, as is outlined under I.C. 11-11-1-2. Instead, his concerns were always addressed informally and verbally, with the jail warden promising to “take care of the problem.” None of the officials ever suggested Swisher file a formal written grievance.

Magistrate Judge Christopher Nuechterlein credited Swisher’s testimony in its entirety, but still ruled in favor of the defendants. Nuechterlein reasoned that Swisher had not exhausted his administrative remedies because, while knowing there was a grievance procedure, he never submitted a written grievance.

“A dose of common sense would have led the magistrate judge to a different conclusion,” Judge Richard Posner wrote. “If you are an inmate and you speak to senior jail officers up to and including the Warden of the jail and are told not to file a grievance because the officers understand your problem and will resolve it without need for you to invoke the formal grievance procedure and they don’t tell you how to invoke that procedure, you are entitled to assume that you don’t have to file a written grievance.

“Anyway no one was willing to give the plaintiff a grievance form or even explain the grievance procedure to him, so he couldn’t have filed a written grievance even if he had thought it necessary.”

“When a jail official invites noncompliance with a procedure the prisoner is not required to follow the procedure,” Posner continued. “When jail personnel mislead inmates about how to invoke the procedure the inmates can’t be blamed for failing to invoke it.”

The case is remanded for further proceedings.  

Oct. 20

Criminal – Evidence/Harmless Error

United States of America v. Kenneth Schmitt

13-2894

Although a witness’s changed testimony did not open the door wide enough to allow the introduction of a defendant’s prior drug record, the prosecution’s case was still substantial without the improper evidence so the defendant’s federal conviction will stand.

Evansville resident Kenneth Schmitt appealed his conviction and sentence for possessing a firearm while being a felon in violation of 18 U.S.C. 922(g)(1). In part, he argued the U.S. District Court for the Southern District of Indiana erred in allowing the state to admit his prior conviction for possession of methamphetamine into evidence.

The 7th Circuit Court of Appeals agreed the District Court did commit an error but found it was harmless. The court ruled the government’s case would not have been significantly less persuasive if the conviction had been excluded.

Linking Schmitt to the drugs police found in the home he shared with his girlfriend was key to the government’s contention that the defendant owned the AK-15 semi-automatic assault rifle also found in the house. The prosecution argued Schmitt had the weapon because he was dealing drugs.

However during the trial, Jason Wyatt, the government’s witness, testified the drugs at the residence were his.

Defense counsel recalled Wyatt to the stand and got him to admit the meth as well as the marijuana and pills all belonged to him. The government seized on the testimony and argued Wyatt’s statements “opened the door” to admitting testimony that Schmitt previously had pleaded guilty to possession and to admitting Schmitt’s conviction record.

The 7th Circuit pointed out the defense did not open the door to evidence of who possessed the meth. The court ruled that conviction was not relevant and should have been redacted from the record.

Still, the error was harmless.

“But the prosecution’s case would not have been ‘significantly less persuasive had the improper evidence been excluded,’” Judge Ann Claire Williams wrote for the panel. “There was already ample evidence before the jury to suggest that Schmitt was a drug dealer, which could lead a reasonable juror to infer that he had a reason to have a firearm.”

Oct. 21

Criminal – Sentencing/Grouping Counts

United States of America v. Roderick D. Sinclair

12-2604

A panel of judges on the 7th Circuit Court of Appeals affirmed a man’s 117-month prison sentence on drug and weapons charges, but two judges believed the case should have been heard en banc based on the importance of a sentencing issue.

Roderick D. Sinclair was indicted and convicted of possessing marijuana with intent to distribute, possessing a firearm in furtherance of a drug trafficking crime, and possessing a firearm as a felon. His presentence report recommended grouping the drug count with the felon-in-possession count under Section 3D1.2 of the U.S. Sentencing Guidelines, which directs the court to combine all “counts involving substantially the same harm” into a single group and determine the offense level for the group.

The government objected, noting that although the two counts ordinarily would be treated as specific offense characteristics of each other, they did not have that effect here because of Sinclair’s Section 924(c) offense of having a weapon in furtherance of a drug trafficking crime. Because of that conviction, the guidelines direct the court not to apply any offense-characteristic enhancements for firearm possession to the underlying count.

The District Court agreed, which meant Sinclair’s offense level went from 16 to 17.

The 7th Circuit upheld the District Court’s decision, finding the guidelines specifically provide that enhancements for firearm possession do not apply when the defendant is also convicted of violating Section 924(c), which carries a mandatory consecutive sentence. Because the otherwise applicable offense-characteristic enhancements were not applied here, there was no basis for grouping under Section 3D1.2(c), Judge Diane Sykes wrote.

She noted their ruling is opposite of what the 8th Circuit Court of Appeals held when confronted with the same combination of counts. That Circuit relied on the introductory comment to Part D of Chapter Three of the guidelines. It held because the three counts in its case were “closely intertwined” as explained in the comment, and arose from the same course of conduct, the drug-trafficking and felon-in-possession counts should be grouped.

Judge Ann Claire Williams, with Judge Richard Posner joining, dissented from the full court’s decision to not hear Sinclair’s case en banc. She said the sentencing issue is one of great important deserving consideration of the entire court.

“Firearm and drug offenses are charged quite frequently together, so the panel’s decision will affect the sentencing of many defendants. And that effect will mean a higher offense level which will often lead to a longer sentence,” she wrote, noting on the merits she agrees with the 8th Circuit’s decision in United States v. Bell, 477 F.3d 607 (8th Cir. 2007).

Because of the Circuit split on the issue, the United States Sentencing Commission should clarify its position in situations like this, she wrote.

The panel also affirmed that the denial of Sinclair’s request for a continuance so his family could hire a private attorney for his defense did not violate the Sixth Amendment. The judge appropriately weighed the uncertainties of Sinclair’s plan to hire private counsel against the costs of a last-minute adjournment to the government, the witnesses and the fair and efficient administration of justice.

Oct. 27

Criminal – Sentencing Enhancement

United States of America v. Trevor Hinds

13-3543

The government conceded that a man convicted for using fraudulently produced credit cards should not be subjected to suspicionless searches and seizures by authorities, so the 7th Circuit Court of Appeals reversed that condition of his supervised release.

The judges also reversed another special condition: that Trevor Hinds pay a portion of his court-ordered substance abuse treatment and drug testing.

Hinds challenged those two special conditions, as well as a two-level sentencing enhancement for production or trafficking. Hinds pleaded guilty to conspiracy to use counterfeit devices, possession of forged securities, and conspiracy to commit bank fraud.

Hinds and four others obtained approximately 300 counterfeit credit and debit cards with their names on them, but the cards were linked to accounts held by other people. They used the cards to buy cigarettes, clothing and electronics in several states, including Indiana. They were apprehended in Clarksville in April 2013.

Because of the two-level sentence enhancement, Hinds was sentenced to three concurrent terms of 30 months. Without the enhancement, his guideline range would have been 24 to 30 months instead of 30 to 37 months.

He only objected at his sentencing to the enhancement, not the special conditions, but did challenge them on appeal.

The appeals court upheld the enhancement, finding that although the District Court had scant findings in support of the enhancement, the fact that the conspirators’ names were found on the cards supports the enhancement.

The 7th Circuit rejected the government’s claim that Hinds waived his appeal of the special conditions and vacated them. Statute allows a District Court to impose a payment condition for substance abuse treatment and drug testing, but “just because a court can do something does not mean that it should,” wrote Judge Michael Kanne. The District judge had found Hinds could not pay the interest on his restitution amount and did not order him to pay a fine based on his financial resources. The judge did not explain why she made him pay for the drug testing.

And the government conceded that the suspicionless search and seizure condition is no different than the one struck down in U.S. v. Farmer, 755 F3.d 849, 852 (7th Cir. 2014), as unlawfully broad and invasive.

The case has been remanded for further proceedings.

Indiana Supreme Court

Oct. 21

Criminal – Search Warrant/Dog Fight/Motion to Suppress

Jonathan D. Carpenter v. State of Indiana

02S05-1404-CR-246

The Indiana Supreme Court ruled that drug evidence obtained by police after they entered a home without a warrant to capture an aggressive dog should not have been admitted at the defendant’s trial. The justices held the search violated Article I, Section 11 of the Indiana Constitution.

Police went to the Fort Wayne home of Jonathan D. Carpenter on reports of dogs fighting. Carpenter was not home at the time, but neighbors gave police his cell phone number. Police did not call Carpenter to find out if anyone was inside the home. Officers saw four bloody and aggressive dogs behind a fence with a locked gate running in and out of the home. Concerned that someone may be inside the home and in danger, police hopped the fence to find a dog that had ran inside. While looking for it, they discovered marijuana plants.

This led to police obtaining a search warrant, seizing the marijuana and other controlled substances. Carpenter was arrested when he returned home.

The trial court denied his motion to suppress the evidence, and the Court of Appeals affirmed. The justices, using the Section 11 analysis, determined the police conduct was not reasonable under the totality of the circumstances.

“[A]lthough the police unquestionably have an interest in protecting the public from risk of harm from a violent dog, this interest does not confer blanket authority to enter private homes under all circumstances,” Justice Mark Massa wrote for the unanimous court.

“Any threat of danger to the outside public was slight; the dog was confined in a fenced yard secured by a locked gate, and the officers could have further prevented the dog’s escape by closing the sliding door. The dogs’ aggressive behavior and bloodied appearance simply were not enough to give rise to a reasonable belief that a person was in danger of imminent harm or in need of immediate assistance. Moreover, the officers did not need to enter to address the situation. They had Carpenter’s phone number, and calling him or his employer to ensure that no one was in the residence would not have been overly burdensome.”

“Our opinion today does not mean that an animal’s condition or behavior could never give rise to reasonable grounds upon which a police officer could enter a residence without a warrant,” Massa explained. “All we hold is that on these facts, the trial court erred in concluding entry was reasonable without any objective evidence that a person required immediate assistance. Because we have resolved this issue under our Indiana Constitution, we need not consider Carpenter’s claim that the admission of the evidence found in his home violated his rights under the Fourth Amendment to the Federal Constitution.”

Oct. 22

Criminal – Peremptory Challenges/Exhaustion Rule

Gary Wayne Oswalt v. State of Indiana

35S02-1401-CR-10

The Indiana Supreme Court tackled issues of first impression involving peremptory challenges and removing jurors for cause. The justices held that parties satisfy the “exhaustion rule” the moment they use their final peremptory challenge – regardless of whom they strike.

Gary Wayne Oswalt was on trial for multiple counts of child molesting, child solicitation and possession of child pornography. During voir dire, he moved to strike jurors 7 and 13 for cause. The trial court denied his motions, so he used two of his peremptory challenges to remove him.

Then he sought to strike Juror 28 for cause and use his final peremptory challenge to remove Juror 25 because he was the brother-in-law of another prospective juror, which is not grounds to remove someone for cause.

He presented his motions simultaneously; the trial court denied the motion to remove Juror 28 for cause, but allowed Oswalt to switch his final peremptory challenge to 28 instead. He decided to leave Juror 28 and strike Juror 25 after stating, “I’ve got a record that says … I’m out of preempts and I’m not getting who I want.”

The Court of Appeals found Oswalt waived appellate review of Juror 28 for failure to exhaust his peremptory challenges.

“We hold that complying with the exhaustion rule neither comes at the cost of a party’s final peremptory challenge nor precludes review of earlier for-cause challenges. Instead, parties satisfy the exhaustion rule the moment they use their final challenge, regardless of whom they strike. We also hold that the parties who satisfy the exhaustion rule should not lose appellate review for doing so. Instead, appellate courts may review jurors whom parties were forced to remove peremptorily when they show that (1) they satisfied the exhaustion rule, and that (2) an incompetent or objectionable juror served on the jury. These conclusions fulfill the purpose of the exhaustion rule, while honoring the parties’ time-honored discretion to use their peremptories as they see fit.

“We conclude that Oswalt’s use of his last peremptory strike satisfied the exhaustion rule, and that we may review his for-cause challenges – not just to Juror 28, but also to Jurors 7 and 13 who did not serve because he struck them peremptorily,” Chief Justice Loretta Rush wrote. “But we find that the court did not abuse its discretion in denying all three challenges, and we therefore affirm Oswalt’s convictions and sentence. In all other respects, we summarily affirm the Court of Appeals.”

Juror 28 had expressed discomfort at the thought of trying a child molestation case, but never told the court that he could not be fair toward Oswalt. Thus, the trial court’s denial of Oswalt’s motion was within its discretion.

Oswalt did not establish that Juror 7, who said she recognized someone during voir dire and believed the person was related to Oswalt, could not render a fair and impartial decision. Her explanation that she would “rather not have to … be involved in a family problem” falls short of bias or prejudice. Oswalt sought to strike Juror 13 for cause because that juror indicated he assumed that defendants were guilty until proven innocent. But the juror later said he could make a decision after hearing all of the evidence.

Justice Mark Massa concurred in result.

Oct. 28

Civil Plenary – Negligence/Tort Claims Act

Michael E. Lyons, Individually; Denita L. Lyons, Individually, et al. v. Richmond Community School Corporation D/B/A Richmond High School; Joe Spicer, et al.

89S04-1312-PL-788

The Indiana Supreme Court has ordered further proceedings in a negligence lawsuit filed by the parents of a special needs student who died after choking on her lunch at school. The justices found there are questions as to whether the parents complied with tort claim notice requirements, so judgment in favor of the defendants is not proper.

Megan Lyons was a 17-year-old student at Richmond High School when she choked on food while eating. She had Down Syndrome and was severely disabled, so the school had a safety plan in place for her. Part of it included having someone monitor her while she eats because she tended to swallow food whole and shovel food into her mouth.

On the day she choked, a different paraprofessional was assigned to supervise her and did not know to cut up her food. Megan began to choke and staff attempted to clear her throat by pounding on her back. Staff did not immediately call 9-1-1 nor attempt the Heimlich maneuver or CPR. Eventually her airway was cleared and she was taken to the hospital. Megan died three days later.

The school’s food services coordinator told cafeteria worker Rhonda Swearingen and three others who witnessed the incident that they would be fired if they spoke to anyone about the incident. Nearly 10 months later, Swearingen contacted Megan’s father, Michael Lyons, and told him that “things were not done properly” during the emergency. On Jan. 11, 2010, more than a year after Megan’s death, the Lyonses filed a notice of tort claim, then sued the school corporation and various staff members, alleging negligence, wrongful death and federal civil rights violations.

The trial court ruled in favor of the defendants, but a divided Court of Appeals ruled the defendants were only entitled to summary judgment on the federal claims. The decision was affirmed on a rehearing sought by the school.

The justices summarily affirmed the COA on several claims, including that summary judgment on the state law claims was inappropriate and that material issues of fact remain as to whether the discovery rule should apply to excuse the Lyonses’ noncompliance with the ITCA notice requirement.

Justice Mark Massa also noted based upon the record, a factfinder could reasonably find the defendants committed active fraudulent concealment.

The justices offered suggested jury instructions for the trial court to handle the application of the discovery rule. The COA ruled that it was a question of fact for the jury, but on rehearing said it was a question of law for the trial court. The justices agreed on both counts. The question of whether a plaintiff has complied with the requirements of the ITCA is one of law, but the answer may depend on the resolution of disputed facts.

Massa also suggested perhaps the General Assembly should consider the issue of whether there should be a public policy favoring disclosure of student information to parents.

“Finally, although we are sympathetic to the Lyonses’ public policy arguments, we must decline their invitation to establish a completely new legal duty here. But we encourage our General Assembly, charged with making policy for our state, to consider this issue carefully. It may be that, in this age of near-universal and compulsory education, when our schools provide myriad counseling, physical therapy recreation, and special needs assistance for our children, they should be required to disclose vital information about a student to the persons most intimately concerned – the student’s parents,” he wrote.

Indiana Court of Appeals

Oct. 21

Post Conviction – Ineffective Assistance of Appellate Counsel

Gary A. Gallien v. State of Indiana

22A01-1402-PC-50

A defense attorney’s failure to raise the consecutive sentencing limitation prejudiced his client, the majority of a Court of Appeals panel ruled, reversing denial of post-conviction relief for a man convicted of multiple burglaries. The court remanded for resentencing to trim six years off a 28-year prison term.

In April 2007, Gary A. Gallien and two accomplices drove a stolen vehicle to a Floyds Knobs Goodwill store. They broke in, stealing $71 and a handcart. Minutes later, they drove to nearby Galena, smashing the vehicle into Sammy-O’s Tavern and hauling away an automatic teller machine. Gallien was arrested a short time later.

A Floyd Circuit jury convicted Gallien of two counts of Class C felony burglary, two counts of Class D felony theft and one count of Class D felony receiving stolen property. Gallien was sentenced to an aggregate 28 years in prison – eight years each served consecutively on the burglary counts, enhanced by 12 years for his habitual offender status. He also received a concurrent sentence of three years for receiving stolen property.

Judge Michael Barnes wrote for the majority joined by Judge Elaine Brown that an analysis of whether the burglaries could be described without referring to each other, as the post-conviction court did, was not dispositive of whether the crimes constituted a single episode of criminal conduct, nor was the fact that two businesses were burglarized.

“Instead, we focus on the small distance between the two burglaries, the short amount of time between them, and the apparent scheme that tied them together. Based on that analysis, we conclude that the two burglaries were ‘closely related in time, place, and circumstance,’” Barnes wrote.

“As a result, the consecutive sentencing limitation of Indiana Code Section 35-50-1-2 is applicable, and the maximum consecutive sentence possible for the two burglaries was ten years rather than the sixteen years imposed by the trial court. Gallien was prejudiced by his appellate counsel’s failure to raise the issue.”

Judge Cale Bradford wrote in dissent he would affirm the post-conviction court.

“It is of note that this court has issued a large number of seemingly inconsistent opinions regarding what constitutes a single episode of criminal conduct, some of which would tend to indicate that Gallien’s actions might be found to constitute a single episode of criminal conduct on appeal. As such, I must agree with the majority that the question of whether Gallien’s actions constituted a single episode of criminal conduct, which would limit his potential sentence to ten years rather than the sixteen imposed by the trial court, was significant and obvious from the face of the record,” Bradford wrote.

“However, even if appellate counsel’s failure to raise this issue on direct appeal amounted to deficient performance, I do not believe that the post-conviction record demonstrates that Gallien established that he was prejudiced by the allegedly deficient performance.”

Criminal – Handgun/Search Warrant

Georon Harris v. State of Indiana

02A03-1402-CR-73

The Indiana Court of Appeals has affirmed a man’s misdemeanor handgun charge after finding the police did not need a search warrant to retrieve the gun after the man placed it inside an apartment in view of the officers.

Police responded to a report of an armed man pointing a gun at a woman and who was driving a white Bonneville. Police saw a similar car parked near an apartment complex entrance. They saw Georon Harris, who matched the description given by the caller, sitting outside an apartment. Police also saw him stand up, remove a handgun from his waistband, open the door of the apartment, place it on the floor inside, close the door and sit down again. The officers handcuffed Harris, opened the door, and retrieved the gun.

Harris was charged and convicted of Class A misdemeanor carrying a handgun without a license. He claimed the handgun shouldn’t have been admitted as evidence because its admission violates the Fourth Amendment of the U.S. Constitution and Article I, Section 11 of the Indiana Constitution.

Regarding his Fourth Amendment claims, the COA found that exigent circumstances in this case justified the officer’s seizure of the gun without a warrant. The officers didn’t know who was in the apartment and if anyone would have access to it. And the judges found regarding the Indiana Constitution claim that the seizure of the handgun was reasonable. The degree of suspicion that a violation had occurred was high, the degree of intrusion was slight and the needs of law enforcement to secure the handgun were great.

Oct. 22

Mortgage Foreclosure – Actual Notice/Motion to Intervene

JPMorgan Chase Bank, N.A. v. Claybridge Homeowners Association, Inc. v. Deborah M. Walton, et al.

29A02-1402-MF-65

The Indiana Court of Appeals reversed the denial of JPMorgan Chase Bank’s motion to intervene in a homeowners association’s attempt to foreclose on a home to fulfill a judgment. The COA found that the bank did not have actual notice of a pending action against the homeowner in 2007, as the association argued.

Claybridge Homeowners Association obtained a judgment in 2004 against Deborah Walton, who lived in the subdivision, for $64,600 in attorney fees and $248 in damages related to the removal of a survey monument. In January 2007, the trial court entered an order vacating a hearing on additional attorney fees and certified it as final judgment. But this order was not entered in the trial court’s judgment docket.

In October 2007, Claybridge filed a complaint to foreclose judicial lien, claiming to have a valid lien against the real estate. It also filed a lis pendens notice stating it had filed a foreclosure complaint, which may result in the sale of the real estate. Two weeks later, Walton and her mother Margaret, who was a joint tenant based on a quitclaim deed, obtained a new mortgage from Washington Mutual Bank, which was later assigned to JPMorgan.

In December 2013, JPMorgan filed its motion to intervene in order to protect its interest in the real estate. The trial court denied its motion, ruling that JPMorgan had notice of the foreclosure action by virtue of the properly filed and valid lis pendens notice.

Claybridge claimed the lis pendens notice was effective to provide notice of the foreclosure action to JPMorgan. JPMorgan claimed that the January 2007 order was not properly recorded, that order was a valid personal judgment against Walton but not an in rem interest in the real estate, and thus that the January 2007 order and the lis pendens notice were ineffective at providing constructive notice.

“In short …. The lis pendens statute is intended to apply to in rem interests in real estate, and any interest Claybridge may have had by virtue of the January 2007 order did not constitute such an interest,” Judge Elaine Brown wrote. “JPMorgan did not have actual notice of the January 2007 Order as it was not entered into the Hamilton County judgment docket, and the Lis Pendens Notice in this case was ineffective for the purpose of providing notice to JPMorgan that its security interest in the Real Estate under the JPMorgan Mortgage may have been subject to or impaired by the January 2007 Order.”

The COA remanded for further proceedings.

Juvenile Termination – Incarcerated Father/Parental Rights

In the Matter of the Termination of the Parent-Child Relationship of: R.A. and S.W. v. The Indiana Department of Child Services

41A05-1402-JT-60

Finding the state did not prove that the parental rights of a man – who learned he was a father while incarcerated pending trial – should be terminated, two of the three judges on a Court of Appeals panel reversed.

Chief Judge Nancy Vaidik and Judge Melissa May found several errors in the trial court’s findings regarding the termination of S.W.’s parental rights to his son, R.A. The infant had previously been adjudicated a child in need of services based on his mother’s inability to care for him and placed in foster care. S.W. was ordered to participate in a variety of services upon his release, and declined to participate in any services while incarcerated. Six months later, while still incarcerated, a petition was filed to terminate his parental rights.

The split decision has a lot to do with S.W.’s refusal to participate in services while incarcerated. The trial court ruling included findings that father declined to participate in Fatherhood Engagement, a program available while in jail, but the majority found that he was not ordered to participate in services until after he was released.

Judge Ezra Friedlander in his dissent wrote that while S.W. was not ordered to participate in those programs, “in my view that does not negate the validity of the inference drawn by the trial court that S.W.’s refusal to do so foreshadows what is to come.” The father was aware his parental rights were in jeopardy and still refused to participate and made no effort to establish a relationship with the child.

Friedlander also found that the continued presence of S.W. in his son’s life will not be in the boy’s best interest is supported by the evidence of what S.W. has done, and refused to do, thus far.

The majority countered that termination is only appropriate when the state proves each relevant element of the termination statute by clear and convincing evidence, and it failed to do so here. Johnson County Department of Child Services did not establish that there is reasonable probability the conditions that led to the boy’s removal or placement outside of the home will not be remedied and that continuation of the parent-child relationship poses a threat to R.A.’s well-being.

Oct. 27

Adoption – Due Process/Incarcerated Father

In Re the Adoption of K.W.: M.W. v. S.L. and T.L.

10A04-1309-AD-469

The Indiana Court of Appeals has reversed the adoption of a child by the maternal grandparents after finding the trial court violated the father’s due process rights when it did not rule on his request for counsel.

M.W. is currently incarcerated in the Kentucky Department of Correction serving a 12-year sentence related to the death of A.W. She died from a lethal dose of pain medication injected by M.W., who is an emergency medical technician. He was attempting to treat her for Crohn’s disease.

Their child, K.W., was placed with her maternal grandmother and step-grandfather in 2009. In 2013, they sought to adopt the child. M.W. filed a pro se appearance and then also requested that counsel be appointed for him, alleging he was indigent and was unable to successfully secure an attorney.

For reasons unclear in the record, the trial court never ruled on father’s request for appointment of counsel and granted the adoption.

I.C. 31-32-2-8 says that a parent is entitled to representation by counsel in proceedings to terminate the parent-child relationship. The grandparents argued that father waived his claim when he filed a pro se appearance and failed to request a hearing on his motion or request counsel at the adoption proceeding.

The COA rejected their argument, citing In re G.P. 4 N.E.3d 1158 (Ind. 2014), which rejected a similar argument made by the grandparents in this case.

“In light of Father’s undisputed allegations in his motion for the appointment of counsel that he was incarcerated, could not afford to hire counsel, had tried without success to secure counsel, and earned twelve to twenty dollars per month while in prison, there is a clear possibility that Father is indigent. Indeed, after Father filed his notice appeal, the Clark County court reporter notified Father by letter that he had been ‘deemed a pauper’ and that no fee was due from him for preparation of the hearing transcript,” Judge Paul Mathias wrote.

“We therefore conclude that the trial court erred by failing to rule on his request for appointed counsel. We reverse and remand for the trial court to determine whether Father is indigent and, if so, to appoint counsel to represent him at a new adoption hearing.”

 Oct. 28

Civil Plenary – Landlord-Tennant/Insurance/Subrogation

LBM Realty, LLC, d/b/a Summer Place Apartments, an Indiana Corporation v. Hillary Mannia, an Indiana Resident

71A03-1402-PL-66

The Indiana Court of Appeals, after skirting around the issue in 2012, decided that Indiana should use the case-by-case approach to address subrogation claims of landlords’ insurers against negligent tenants.

Tennant Hillary Mannia caused nearly $750,000 in damages to Summer Place Apartments when a fire started resulting from her disposal of cigarettes on a balcony. After the fire, the apartment’s insurance company, Greater New York Mutual Insurance Co., filed an insurance subrogation action in the name of LBM Realty LLC, which owned the apartments. Mannia filed for summary judgment, asking the trial court to adopt a no-subrogation rule, citing Sutton v. Jondahl, 532 P.2d 478 (Okla. Ct. App. 1975), which would preclude the complaint against her.

Sutton stands for the proposition that absent an express agreement in the lease to the contrary, landlord and tenant are considered co-insureds under a landlord’s fire-insurance policy; the insurer, therefore, has no right of subrogation against the tenant to recover payments made under the insurance policy due to fire loss, even if the fire is caused by the tenant’s negligence.

The trial court adopted the rule and applied it, which led to the grant of her motion to dismiss. LBM appealed, and the COA reversed and remanded without adopting any approach.

Now, two years later, the appeals court has decided that the case-by-case approach should be adopted.

“Having considered the range of possible approaches, we conclude that Indiana should hereby adopt the largely case-by-case approach, finding that a tenant’s liability to the landlord’s insurer for damage-causing negligence depends on the reasonable expectations of the parties to the lease as ascertained from the lease as a whole and any other admissible evidence,” Chief Judge Nancy Vaidik wrote. “Although the case-by-case approach is said to provide less predictability than either the pro- or no-subrogation approaches, we find that this approach best effectuates the intent of the parties by simply enforcing the terms of their lease. In determining the expectations of the parties as articulated in the lease, courts should look for evidence indicating which party agreed to bear the risk of loss for a particular type of damage.”

“However, with regard to tenants in a multiunit dwelling, we find that absent clear notice – ideally in the form of an unambiguous, enforceable lease provision – that a negligent tenant will be held liable for damages to areas of the building beyond the tenant’s leased premises, such liability would not be within the tenant’s reasonable expectations and is therefore barred. This approach also avoids the unreasonable expectation and economic waste of requiring every tenant in a multiunit apartment building policy to carry insurance coverage adequate to cover damage to the entire building, particularly when the landlord presumably already maintains such coverage.”

The judges affirmed that summary judgment was properly granted to the extent the $742,402.86 insurance claim is for damages to areas beyond the leased premises because based on the lease, Mannia was not on notice that she would be liable for damage caused by negligence to areas of the multiunit apartment building beyond the lease premises. But summary judgment was inappropriate with respect to damage to the lease premises. They ordered on remand for the trial court to engage in the analysis of the case-by-case approach.

Adoption – Grandmother/Felony Conviction

In Re the Adoption of: I.B. and W.B., (Minor Children) and B.B. v. B.C. & J.L., and The Indiana Department of Child Services

82A05-1402-AD-65

The Indiana Court of Appeals found I.C. 31-19-11-1(c) to be unconstitutional as applied and upheld the adoption of two boys by their maternal grandmother. The judges held that her 1997 felony conviction for neglect of a dependent should not automatically bar her from adopting the children.

I.B., W.B. and their half-brothers J.C. and G.C. were placed in the care of their maternal grandmother and her fiancé upon their removal from their home and child in need of services adjudication due to parental drug use and I.B.’s premature birth with drugs in his system. The children were in their grandmother’s care for approximately five months, but removed after she and her fiancé tested positive for marijuana. But the two made changes in their lives and worked with Department of Child Services to have the children returned. They eventually filed for adoption of the four boys, to which mother consented.

The two older boys’ adoptions were already granted when the younger boy’s paternal grandmother intervened in the younger boys’ adoption proceedings. DCS and Court Appointed Special Advocates testified that adoption by the grandmother and her fiancé, whom she lived with for 13 years, was in I.B. and W.B.’s best interests based on the care they gave the boys, who all had their own special needs.

The trial court granted the maternal grandmother and her fiancé’s motion to adopt.

The paternal grandmother appealed, arguing that the maternal grandmother’s 1997 conviction for Class D felony neglect of a dependent should bar the adoption. The biological mother of the boys was the victim in the case. Maternal grandmother pleaded guilty, admitting she left her minor daughter alone with her husband after she became aware he had been molesting the girl. She later divorced her husband and successfully completed counseling and probation. The family case manager did not believe she posed a risk to the four boys.

I.C. 31-19-11-1(c) provides that a court may not grant an adoption if the petitioner for adoption has been convicted of any of the felonies listed in the statute, including neglect of a dependent. But DCS argued that application of the statute’s irrebuttable presumption of unfitness would result in a violation of the children’s due process rights.

“[W]e conclude that I.B. and W.B. were entitled to an individualized determination of their best interests before being removed from the intact, biological family unit in which they had lived since the beginning of 2013. This is precisely the procedure that was provided below, and the evidence established that despite maternal grandmother’s prior conviction, it was in I.B. and W.B.’s best interests to be adopted into this loving, secure home in which they have thrived and which is made up of family members with whom they are closely bonded.

Under these circumstances, the statute is unconstitutional as applied and maternal grandmother’s conviction cannot be dispositive,” Judge Ezra Friedlander wrote.•