Indiana Court Decisions: Sept. 21-Oct. 4, 2023

Indiana Supreme Court

Sept. 25

Z.D. v. Community Health Network, Inc.

23S-CT-116

Hospital entitled to partial summary judgment on negligence claim, but not public disclosure

A hospital sued after a woman’s diagnosis was mailed to the wrong person and subsequently posted to social media secured a partial victory at the Indiana Supreme Court, which upheld partial summary judgment on a negligence claim but reversed summary judgment on a public disclosure claim.

Chief Justice Loretta Rush wrote the opinion in Z.D. v. Community Health Network, Inc., 23S-CT-116, with Justices Mark Massa and Christopher Goff concurring. Justice Geoffrey Slaughter concurred and dissented in part while Justice Derek Molter did not participate.

The case began in September 2018, when Z.D. received medical care at one of Community Health Network’s emergency departments.

After her visit, an employee called Z.D. to discuss her health matter but was unable to reach her.

The employee thus prepared a letter documenting Z.D.’s private health information that included her recent diagnosis and suggested treatment.

The letter was addressed to Z.D., but it was placed in an envelope addressed in handwriting to the wrong person.

The person who received the letter was Jonae Kendrick, a classmate of Z.D.’s daughter. Kendrick took a picture of the one-page letter and posted it on her Facebook page and attempted to tag Z.D. in the post.

Z.D.’s daughter saw the post and notified her mother. Z.D. had to pay Kendrick $100 for the letter to be returned, and the post was eventually taken down.

Z.D. later sued Community, alleging it was directly responsible for its negligent training, supervision and retention of employees and was vicariously liable for its employee’s unauthorized disclosure of her private health information. She also claimed the hospital was directly or vicariously liable for negligently maintaining the confidentiality of her private information.

Community moved for summary judgment on each of her claims, alleging that it was not the proximate cause of her damages and that she could not recover emotional-distress damages in her negligence claim due to the modified impact rule’s direct physical-impact requirement.

It also alleged that her claim for negligent training, supervision and retention failed as a matter of law because the employee acted within the scope of employment.

Finally, to the extend Z.D. raised a claim for public disclosure of private facts, the hospital argued the tort was not cognizable in Indiana and if it was, Community negated the publicity element.

The Marion Superior Court granted summary judgment to Community on each of Z.D.’s claims, although it did not address Z.D.’s alleged pecuniary damages, nor did it analyze her public disclosure claim.

The Court of Appeals of Indiana partially reversed last October, finding genuine issues of material fact remained.

At the Supreme Court, the justices first addressed Z.D.’s public disclosure claim.

Finding Community was not entitled to summary judgment on that claim, Rush cited Cmty. Health Network, Inc. v. McKenzie, 185 N.E.3d 368 (Ind. 2022), which explicitly adopted the elements of the public-disclosure tort under the Restatement (Second) of Torts § 652D.

Frequently citing to McKenzie, the justices held that Indiana’s public-disclosure tort is not an intentional tort.

“Hoosiers’ private information warrants protection from intentional exploitation and inadvertent exposure alike. Accordingly, individuals and entities, including healthcare providers, must do their part to safeguard private information,” Rush wrote. “If they do, their potential for liability is greatly minimized; but if they don’t, and the four elements of the public-disclosure tort are met, affected individuals deserve to be made whole and reclaim the inherent value of their privacy. So, because Z.D. was not required to allege that Community’s wrongful disclosure of her private information was intentional, Community is not entitled to summary judgment on that basis.”

The high court also found that recovery for emotional distress is available in a public-disclosure claim.

“A public-disclosure claim is not a negligence claim, and it does not transform into one merely because a negligent act or omission occurs,” Rush wrote. “… Accordingly, the modified impact rule straightforwardly does not apply to public-disclosure claims. … In the context of a public-disclosure claim, it is inherently plausible — if not inevitable — the affected individual will suffer emotional distress when their intimate details are shared with the public.”

The court further found that Community has not negated the publicity element of Z.D.’s public-disclosure claim.

“When, as here, a private matter is disclosed to the wrong person, the mere possibility that the information can be given unwanted and unreasonable publicity does not necessarily render it sure to become public knowledge. But at the summary judgment stage, we must construe all inferences and doubts as to material factual issues in a manner favorable to the nonmovant, which is Z.D.,” Rush wrote. “And in doing so, we find the record supports conflicting inferences as to whether Community’s disclosure of Z.D.’s private health information to Kendrick was communicated in a way that it would reach a large enough number of people such that it was sure to become public knowledge.”

But turning to negligence, the high court ruled partially in Community’s favor.

“Not all private health information is alike. Some reveals intimate moments about one’s life; others, however, are innocuous and mundane,” Rush wrote. “Accordingly, the likelihood that a patient will suffer emotional distress following the mere mishandling of private information — standing alone — is, at best, uncertain.

“At the same time, we share Z.D.’s sentiment that because private health information is entitled to protection, healthcare providers must do their part to enforce security measures that prevent breaches,” the chief continued. “And we also recognize technological innovations implemented in the healthcare industry have facilitated increased access to and the sharing of private health information, further implicating its protected status.

“… In short, plaintiffs like Z.D. may assert negligence-based claims when their private information is mishandled, but the modified impact rule precludes recovery for emotional distress unless the plaintiff sustained a direct physical impact from the negligence. Here, the designated evidence reveals Z.D. suffered emotional distress as a result of Community’s alleged failure to maintain the confidentiality of her private information. Because this alleged negligence did not produce a direct physical impact, the modified impact rule precludes Z.D. from recovering emotional-distress damages.”

In a partial dissent, Slaughter disagreed that Z.D. survives summary judgment on her public-disclosure claim, arguing that the majority misapplied McKenzie.

“I would affirm the trial court’s grant of summary judgment for Community on this claim because Z.D. fails the claim’s publicity element,” he wrote.

The case was remanded.

Indiana Right to Life Victory Fund and Sarkes Tarzian, Inc. v. Diego Morales, et al.

23S-CQ-108

Split IN Supreme Court rules state law limits corporate contributions to super PACs

Indiana election law’s silence on corporate contributions to independent-expenditure political action committees means such contributions are prohibited or otherwise limited, a split Indiana Supreme Court has ruled in answering a certified question from the 7th Circuit Court of Appeals.

The case involves Indiana Right to Life Victory Fund, which wants to operate as an independent-expenditure PAC — commonly called a super PAC — in Indiana but fears the state’s election laws won’t allow it to accept donations from corporations, or that there would be a cap on how much those corporations could donate.

The fund and a private company, Sarkes Tarzian Inc., went to federal court seeking to prevent Indiana from enforcing its campaign finance laws to limit or ban corporate contributions to super PACs.

The Indiana Southern District Court found the fund did not allege a credible threat and dismissed the lawsuit for lack of standing.

On appeal, the 7th Circuit ruled the state’s high court is the only body that can definitively construe Indiana election laws and certified a question to the court: “Does the Indiana Election Code — in particular, §§ 3-9-2-3 to -6 — prohibit or otherwise limit corporate contributions to PACs or other entities that engage in independent campaign-related expenditures?”

Writing for the majority, Justice Derek Molter said the answer to that question is yes.

Indiana Chief Justice Loretta Rush concurred along with Justices Mark Massa and Geoffrey Slaughter. Justice Christopher Goff dissented with a separate opinion.

The disputed section of state law regulates corporate campaign contributions, but both parties agreed the relevant statutes don’t say anything about contributions to super PACs.

The plaintiffs took that silence to mean contributions to super PACs for independent expenditures are prohibited, while defendants — including Indiana Secretary of State Diego Morales and the Indiana Election Commission — argued the Legislature’s silence means the contributions are permitted.

Election officials have also said they have no intent to enforce the laws in the way the plaintiffs are claiming and that doing so would be a violation of the First Amendment.

Justices heard oral arguments earlier in September.

The majority agreed with the plaintiffs’ view of how to interpret the legislative silence.

At issue is a $10,000 contribution Sarkes Tarzian wants to make to the victory fund.

State law permits a corporation to “‘make a contribution to aid in the … election or defeat of a candidate,’ as well as the success or defeat of political parties and public questions, Ind. Code § 3‐9‐2‐3(a), but only to the extent authorized by sections 4, 5, and 6 of Title 3 (Elections), Article 9 (Campaigns), Chapter 2 (Campaign Contributions),” the opinion says.

Sarkes Tarzian’s contribution would only be legal under Indiana law, the opinion says, if it were authorized by sections 4, 5 and 6.

Section 4 doesn’t mention contributions to PACs, but Section 5 does, saying corporations like Sarkes Tarzian “may make a contribution to a political action committee” so long as the contribution (a) “is designated for disbursement to a specific candidate or committee listed under section 4 of this chapter,” and (b) does not exceed section 4’s dollar limits. The contribution Sarkes Tarzian wants to make would violate section 5, the opinion says.

Section 6 provides exceptions to the restrictions, but both parties agreed none of the exceptions apply.

“Because section 3 only permits corporate contributions that sections 4, 5, or 6 authorize, and those sections do not authorize Sarkes Tarzian’s contribution to the Victory Fund, the Indiana Code prohibits the contribution,” the opinion says.

The majority also ruled that election officials failed to identify any statutory ambiguity that could reasonably permit an interpretation that authorizes the contribution Sarkes Tarzian would like to make.

Election officials argued there are some features of the relevant statutes that make them ambiguous, including that state law doesn’t distinguish between “expenditures” and “independent expenditures.”

The majority disagreed.

“That argument is circular,” the opinion says. “The question is whether the statutory silence about ‘independent expenditures’ means corporations can contribute to independent‐expenditure‐only PACs. It is no answer to repeat back the premise of the question, which is that the Indiana Code is silent about independent expenditures.”

Finally, the majority ruled the court can’t revise unambiguous statutes through judicial interpretation to avoid a constitutional defect. To do so would amount to rewriting the statute, the opinion says.

PACs have evolved over the last 35 years, the opinion says, including with the U.S. Supreme Court’s decision in Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), which held that the First Amendment forbids the government from restricting corporate contributions for independent expenditures.

“So it is no doubt time for the General Assembly to again update its statutes to account for this change in constitutional law,” the opinion says. “But we cannot provide a shortcut through judicial interpretation of unambiguous statutes.”

The majority also added: “We are mindful that the parties expect this holding will lead the federal courts to enjoin the election officials’ enforcement of those statutes as applied to contributions like the one Sarkes Tarzian wishes to make to the Victory Fund. But we must leave it to the General Assembly to update its statutes to remedy any such constitutional defect, as statutory revision is beyond our authority.”

The case is Indiana Right to Life Victory Fund and Sarkes Tarzian, Inc. v. Diego Morales, et al., 23S‐CQ‐108.

In a dissenting opinion, Goff said he would answer “no” to the certified question by “inferring what the legislature most likely intends the Indiana Election Code to mean in the aftermath of Citizens United.”

The challenged part of state law was enacted in 1986, with only minor amendments since 2010, Goff wrote.

He noted the Indiana Supreme Court has adopted a predominantly textualist approach for statutory interpretation.

“Here,” Goff wrote, “two primary considerations make it especially appropriate to do more than mechanically interpret the text: the historical context in which the case arises and this Court’s role in Indiana’s system of government.”

All parties agree that the First Amendment prohibits limitations on corporate contributions to super PACs, he wrote.

“And it has been clear for well over a decade that, should an Indiana official seek to enforce such a restriction, they would likely subject themselves to civil damages, including attorney’s fees, for violating the aggrieved corporation’s federally protected rights,” Goff wrote, citing Wisconsin Right to Life State PAC v. Barland, 664 F.3d 139, 154 (7th Cir. 2011).

He continued: “In giving an answer to this request, we must consider our own Court’s responsibilities. I see our duty as broader than merely to expound the meaning of texts. We represent one of three branches of government in a state that is itself bound into a wider national union.”

Conflict is “needless” in this case, Goff wrote, because “we can supply a workable remedy for an entirely hypothetical constitutional violation.”

“Given the historical context, a focus on the plain statutory text leads us not towards but away from understanding the legislature’s intent and policy and frustrates our aim of bringing consistency and predictability to the law,” he wrote. “Ultimately, I don’t believe that we have to throw a wrench into Indiana’s campaign-finance system.”

Court of Appeals of Indiana

Sept. 26

Maggie E. Winans v. State of Indiana

23A-CR-80

COA: Trial court committed reversible error in not setting case for jury trial

A trial court committed reversible error when it proceeded to a bench trial rather than setting the case for a jury trial after the defendant was discharged from a pretrial agreement, the Court of Appeals of Indiana has ruled.

Appellant-defendant Maggie Winans was charged with Class A misdemeanor domestic battery and Class A misdemeanor resisting law enforcement in March 2021. At her initial hearing, Winans executed a “Rights Advice at Initial Hearing in Misdemeanor Cases” form in which she was informed of her right to a trial by jury.

Her counsel filed a motion for jury trial, which the Cass Superior Court granted.

But before her scheduled trial, Winans entered into a pretrial diversion agreement providing that if she complied with the terms, her charges would be dismissed 12 months after execution of the agreement. The agreement did not contain any terms regarding a written waiver of jury trial.

In April 2022, a motion for hearing was filed because Winans has been discharged from the pretrial diversion program, and the trial court issued an order setting the matter for a pretrial conference.

Winans’s original attorney withdrew and, in June 2022, her new counsel filed a motion to continue the pretrial conference, which was granted.

After two hearings, both minute sheets indicated that a bench trial was set for Sept. 12, 2022. Nothing in the record indicated Winans signed anything waiving her jury trial, and no waiver was discussed at either hearing.

The bench trial was rescheduled and held in December, when the court found Winans guilty as charged. She was sentenced to an aggregate of 730 days, with four days credits time and the balance suspended to probation.

Winans appealed her convictions, raising the issue of whether the trial court committed fundamental error when it failed to reset the matter for a jury trial after her pretrial diversion agreement was terminated.

The COA determined that failure was reversible error.

“The effect of Winans’s discharge from the pre-trial diversion program was to return her to the original position that she occupied before she entered into the pre-trial diversion program, i.e., being prosecuted for domestic battery and resisting law enforcement,” Judge Peter Foley wrote. “Thus, the trial court should have set Winans’s case for a jury trial following her discharge from the pre-trial diversion program.”

The state argued Winans had invited the error, but the appellate court disagreed.

“The record before us fails to establish that Winans’s failure to object to the bench trial settings was part of a deliberate, well-informed trial strategy,” Foley wrote. “Where, as here, a defendant preserves her right to a jury trial, failure to object to a subsequently scheduled bench trial is insufficient to constitute waiver.”

The appellate court thus reversed Winans’ convictions and remanded for a jury trial.

The case is Maggie E. Winans v. State of Indiana, 23A-CR-80.

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Sept. 27

New Augusta North Public Academy and Metropolitan School District of Pike Township v. K.G., a Minor by her Parent and Next Friend Melody Ruch, Individually

23A-CT-871

Mother whose daughter was molested at school sees partial win, loss at COA

Once again returning to the Indiana appellate courts, a mother whose daughter with severe disabilities was sexually molested at her school secured a partial victory and partial loss at the Court of Appeals of Indiana, where this time summary judgment rulings were at issue.

The child, K.G., was born in 2004 with cerebral palsy, microcephaly, congenital quadriplegia, optic nerve hypoplasia and epilepsy. K.G. is nonverbal and has limited communication, vision, movement and comprehension.

Between October 2015 and January 2016, K.G. was a student at New Augusta Public Academy, part of the Metropolitan School District of Pike Township in Indianapolis. During that time, an instructional assistant, Morgan Smith, sexually abused K.G. while changing her diaper.

Around the same time, K.G. began suffering from sleeplessness and night terrors and became combative with her caregivers. Her mother, Melody Ruch, ultimately had to place her in a chronic care facility.

Smith confessed in February 2018 and pleaded guilty to Level 3 felony child molesting in April 2019.

The following month, Ruch, on K.G.’s behalf, sent a tort claim notice to the academy and the school district, followed by a lawsuit that August. Notably, in its answer, the plaintiffs admitted to an allegation that the May 14, 2019, tort claim notice was timely.

In June 2020, the school filed a motion for partial summary judgment on Ruch’s individual claim of negligent infliction of emotional distress. She had also raised a claim for economic damages.

The school argued that because Ruch was not physically present for the abuse nor physically impacted, her emotional distress claim could not survive.

The Marion Superior Court granted the motion for partial summary judgment as to both emotional distress and economic damages. On appeal, the Court of Appeals affirmed as to the emotional distress claim but reversed as to economic damages because the school did not seek summary judgment on that claim.

The case then went to the Indiana Supreme Court, which ruled that summary judgment was inappropriate on both claims.

On remand, Ruch moved for partial summary judgment on a respondeat superior claim against the school and on her individual claim for emotional distress.

Meanwhile, the school moved for leave to amend its answer, arguing the tort claim notice had actually been untimely. That motion was granted.

Also, the school filed a cross-motion for summary judgment, arguing that Smith’s guilty plea did not bind it and that the respondeat superior claims were for the jury to decide. Additionally, the school again argued that the notice of tort claim was untimely.

The trial court ultimately granted Ruch’s motion for partial summary judgment and denied the school’s motion, then set a pretrial conference to schedule a trial on the issue of damages.

The school appealed, and addressing the case for the second time, the Court of Appeals affirmed and reversed in part in New Augusta North Public Academy and Metropolitan School District of Pike Township v. K.G., a Minor, by her Parent and Next Friend Melody Ruch, Individually, 23A-CT-871.

Turning first to the respondeat superior claim, the COA determined the grant of Ruch’s motion for summary judgment on that issue was improper, citing Cox v. Evansville Police Dep’t, 107 N.E.3d 453 (Ind. 2018), and Stropes ex rel. Taylor v. Heritage House Childrens Center of Shelbyville, Inc., 547 N.E.2d 244 (Ind. 1989).

“As in Stropes, it is ‘beyond question,’ that the sexual abuse was unauthorized and committed for Smith’s own gratification,” Judge Elizabeth Tavitas wrote. “The fact that the sexual assault was unauthorized is, however, ‘not per se determinative of the scope of employment question.’

“Rather, genuine issues of material fact exist, and is in Cox and Stropes, whether Smith was acting within the scope of her employment is a fact sensitive matter for the jury to decide,” Tavitas continued. “We conclude that the trial court erred by granting summary judgment to Plaintiffs on the respondeat superior issue, and we remand for a trial on the issue.”

But the COA also concluded that the trial court properly denied the school’s motion for partial summary judgment on Ruch’s individual claims, determining that the issue of the timeliness of the tort claim notice had been waived. The appellate court distinguished the instant case from Schoettmer v. Wright, 992 N.E.2d 702 (Ind. 2013).

“The School allowed this litigation to proceed through summary judgment proceedings, appellate proceedings in this Court, and appellate proceedings in our Supreme Court regarding Mother’s individual claim before raising the issue of the (Indiana Tort Claims Act) because the School thought it would ‘prevail on the merits’ of Mother’s individual claim,” Tavitas wrote. “Although a party is generally permitted to amend its pleadings, under the circumstances here, the School was ‘playing fast and loose with the courts’ by its delay in raising the ITCA defense.

“We conclude that, unlike in Schoettmer, the School waived its ITCA defense by failing to present it in a timely manner,” Tavitas concluded.

In the Matter of Z.H. (Minor Child Alleged to be a Child in Need of Services); Hamilton County GAL/CASA Program v. Indiana Department of Child Services

23A-JC-1120

COA reverses dismissal of CHINS case based on ‘absurd assertion’ that coercive intervention was no longer necessary

In a case accusing both the trial judge and the Indiana Department of Child Services of “inexplicably ignor(ing)” the best interests of a child, the Court of Appeals of Indiana has reversed the dismissal of the CHINS case.

The case — In the Matter of Z.H. (Minor Child Alleged to be a Child in Need of Services); Hamilton County GAL/CASA Program v. Indiana Department of Child Services, 23A-JC-1120 — began in August 2022, when DCS filed a petition alleging children Z.H., X.H., Lm.H and J.H. were CHINS due to neglect and physical abuse.

According to the DCS petition, the children and their mother were living in a hotel in July 2022 while their house was being repaired following fire damage. The children ran away from their mother because her boyfriend “hits/whips them with cords, and [Mother] also hits them.”

A family case manager spoke with the mother and children at the hotel on several occasions, observing Z.H. with “busted blood vessels in her right eye” on one occasion. DCS alleged the mother had hit Z.H. with a computer, although the mother denied that allegation.

The mother had substantiated reports of child abuse from both 2020 and 2021, as well as substantiated reports of the children being removed while they were living in Georgia. She was also charged with Level 6 felony domestic battery alongside the instant CHINS case, and that case is still pending.

The children were eventually placed with their grandmother, L.M., and a guardian ad litem was appointed. The GAL’s report recommended that Z.H. and the mother attend therapy together, with a goal of working toward unsupervised visitation.

Eventually, the grandmother asked that the children be placed with their mother while she attended to a family emergency, but the GAL would not agree without “firm safety measures agreed upon and monitored.” DCS presented the mother with a safety plan, but the GAL was never told whether the mother agreed to the terms.

The children were placed back with their mother.

According to the Court of Appeals, DCS’s account of what happened “is somewhat different than the GAL’s.”

On Feb. 20, DCS moved for a trial home visit, alleging that the children had been placed in “foster care” and that the mother had “made progress in this case and [was] in compliance with the case plan.”

According to the GAL, on March 5, the mother spanked Z.H. with a belt for failing to follow “bedtime rules.” Z.H. also claimed the mother had choked her and told her she could not lay on the bed due to her poor behavior.

Z.H. then ran away, prompting the mother to look for her. When she found Z.H., the mother, who was in her car, “drove her car onto the sidewalk and nudged [Z.H.] with the car.”

“Z.H. later told the GAL, ‘Why do you all keep giving me back to [Mother]? She doesn’t want me, and she’s abusive,’” according to the COA.

On April 4, DCS informed the GAL that it would be “recommending case closure as Mother has completed all of the services requested.” Z.H. would stay with her sister, DCS said, while the other children would stay with their mother.

The GAL expressed concern about the plan and recommended that services continue for the children.

DCS then filed its motion to dismiss the CHINS case against the mother, and the GAL objected. No factfinding hearing had yet been held with respect to the mother.

The trial court issued an order dismissing Z.H.’s case after hearing testimony from both DCS and the GAL.

Prior to issuing its order, the trial court had said, “I think there’s a lot more [DCS] could do for [Z.H.]. … So I think that there are services that could be provided to her, but I’m also sitting here and we’re pre-fact-finding as to Mom.” Then in its order, the court noted, “There has not been an adjudication as to Mother in this cause.”

The GAL appealed, and the COA reversed.

“If the Department of Child Services … and the trial court do not act in the child’s best interest, who will?” Judge Elizabeth Tavitas wrote. “In this case, we reiterate the fundamental purpose behind the statutes governing children in need of services … cases — the protection of children — and we highlight the crucial role guardians ad litem and court appointed special advocates play in advocating for the children’s best interest. That role comes into sharper focus here, where it is apparent that the Department of Child Services … and the trial court inexplicably ignored the best interests of the child.”

Looking at Indiana Code § 31-34-9-8, the appellate court ruled, “A plain reading of the statute reveals that the Indiana General Assembly did not intend for the filing of a motion to dismiss to mandate dismissal of a CHINS case. Rather, the General Assembly intended for trials courts to review the reasons proffered in support of dismissal in light of the evidence and allegations and then determined whether dismissal is in the child’s best interests.

“… While we ordinarily ‘presume trial courts know and follow the law,’ we will overlook this presumption ‘if the trial court’s order leads us to conclude that ‘an unjustifiable risk exists that the trial court did not follow the applicable law,’’” Tavitas wrote, citing In re Paternity of A.R.S., 198 N.E.3d 423, 431 (Ind. Ct. App. 2022). “We find that to be the case here.

“… First, the trial court appears to have determined that it had no discretion regarding whether to dismiss the CHINS case, and as a result, the trial court failed to determine whether dismissal was in Z.H.’s best interests,” Tavitas wrote. “Moreover, DCS’ assertions are unsupported by the record.

“… The allegations against Mother give this Court great pause, and we cannot accept DCS’s assertion that Z.H. is no longer neglected and/or endangered,” she continued. “Furthermore, though Mother agreed to allow Z.H. to stay with Sister, this informal agreement hardly constitutes a sufficient permanency plan, as DCS contends.

“… Finally, DCS’s absurd assertion that ‘there was nothing more that it could do’ hardly supports the trial court’s dismissal order. Indeed, the trial court opined just the opposite, stating, ‘I think there’s a lot more [DCS] could do for [Z.H.].’ DCS cannot abandon children in the naïve hope that everything will just work out when all indications show otherwise, and we cannot accept DCS’s assertion that the trial court did not abuse its discretion by dismissing Z.H.’s CHINS case.”

The case was remanded for a best-interests determination.•