Opinions Feb. 17, 2017

Indiana Supreme Court
In the Matter of the Termination of the Parent-Child Relationship of Bi.B. And Br.B, D.B. and V.G. v. Indiana Department of Child Services
54S01-1612-JT-630
Juvenile termination of parental rights. Reverses the trial court’s decision to terminate D.B.’s parental rights to his daughters, Bi.B. and Br.B. Finds the Department of Child Services failed to allege the one of the statutorily required three waiting periods for terminating parental rights that had, in fact, passed – the father’s daughters had been removed from him for at least six months under a dispositional decree. Also finds that DCS failed to prove the other two waiting periods applied to its petition.

Indiana Court of Appeals
In the Matter of: L.G. (Minor Child), Child in Need of Services, and M.S. (Mother) & C.G. (Father) v. The Indiana Department of Child Services (mem. dec.)
7A905-1607-JC-1558
Juvenile. Affirms the Tippecanoe Superior Court’s order finding L.G. to be a child in need of services.  Finds the evidence is sufficient to support the order. Also finds that given the evidence in the record, the trial court did not err by determining that it was in L.G.’s best interests to be placed outside of the parents’ care and custody until the situation can be further monitored.

Steak `N Shake No. 315 v. Ronald E. Smith (mem. dec.)
02A03-1604-SC-890
Small claims. Affirms a $250 judgment to Ronald E. Smith by Steak ‘n Shake No. 315. Finds a reasonable trier of fact could have found that the restaurant owed a duty to Smith to keep its property safe for his use. Also finds that the restaurant negligently breached that duty by failing to remedy or warn of a defect of which it had actual knowledge. Finally, finds that the restaurant’s breach foreseeably caused the trash can to become unmounted and fall when the unit was used, striking Smith, injuring him and causing damages in the amount of $250.

Victor Gersdorff v. State of Indiana (mem. dec.)
49A02-1608-CR-1785
Criminal. Affirms Victor Gersdoff’s conviction for possession of marijuana as a Class A misdemeanor, possession of paraphernalia as a Class A misdemeanor, operating a vehicle while intoxicated as a Class C misdemeanor and operating a vehicle with a schedule I or II controlled substance or its metabolite in the body as a Class C misdemeanor. Finds the Marion Superior Court did not abuse its discretion in admitting the evidence seized following Gersdoff’s stop at a constitutionally reasonable sobriety checkpoint.

Danny L. Hersley, Jr. v. State of Indiana (mem. dec.)
16A05-1602-CR-364
Criminal. Affirms Danny L. Hersley’s conviction of Level 3 felony robbery and his adjudication as a habitual offender. Finds the state presented sufficient evidence from which a reasonable fact-finder could conclude that Hersley used force to rob Uriah Brumley, causing Brumley to suffer bodily injury. Also finds the state proved that Hersley is a habitual offender as defined under Indiana Code 35-50-2-8(b). Finally, finds that because the Decatur Circuit Court only entered judgment on the Level 3 felony robbery guilty verdict, Hersely has not established a double jeopardy violation.

In re the Termination of the Parent-Child Relationship of M.L. and A.L. (Minor Children), and A.H. (Mother) v. Indiana Department of Child Services (mem. dec.)
91A02-1607-JT-1758
Juvenile termination of parental rights. Affirms the judgment of the White Circuit Court terminating A.H.’s parental rights to her daughter, M.L., and her son, A.L. Finds that the Department of Child Services presented sufficient evidence to support the trial court’s conclusion that there was a reasonable probability that the conditions that resulted in the children’s removal from A.H.’s care would not be remedied and that the continuation of the parent-child relationship posed a threat to the children’s well-being. Also finds that the evidence was sufficient to support the trial court’s conclusion that termination of the parent-child relationship was in the children’s best interests.

Krysten A. Overly v. Mark E. Overly (mem. dec.)
29A02-1609-DR-2192
Domestic relation. Affirms in part the trial court’s order in a custody agreement for Krysten Overly to pay Mark Overly $118 per week in child support. Remands with instructions to modify the order to apply Krysten Overly’s $118 per week to Mark Overly’s entire $21,947.09 debt to Krysten Overly until it is satisfied, at which point the child support payment will be paid to Mark Overly. Also remands with instructions to amend the order to require Krysten Overly to monitor the satisfaction of Mark Overly’s debt, including the calculation of interest, and provide annual reports to the Hamilton Superior Court. Finally, remands with instructions to amend the order to eliminate Mark Overly’s $100 per week payment to Krysten Overly. Affirms the trial court’s disposition in all other respects.

James Showalter v. Tanya Ray (mem. dec.)
18A02-1608-JP-1849
Juvenile paternity. Affirms and reverses in part the Delaware Circuit Court’s modification of James Showalter’s child support and award of attorney fees to Tanya Ray. Finds the trial court erred in calculating Showalter’s child support obligation. Also finds that Showalter has waived his attorney fees argument for appellate review. Remands with instructions.

Nicholas Edward Daugherty v. State of Indiana (mem. dec.)
29A02-1609-CR-2076
Criminal. Affirms Nicholas Edward Daughtery’s conviction of possession of paraphernalia as a Class C misdemeanor. Finds the evidence shows that the paraphernalia was in close proximity to Daughtery and was found in the vehicle owned by his father. Also finds that Daughter made incriminating statements.

Corey L. Spurlock v. State of Indiana (mem. dec.)
49A05-1609-PC-1976
Post-conviction. Affirms and reverses in part the denial of Corey L. Spurlock’s petition for post-conviction relief. Finds the post-conviction court erred in denying Spurlock’s petition because, although Spurlock received effective assistance of trial counsel, he received ineffective assistance of appellate counsel. Remands for the entry of judgment of conviction on conspiracy to commit robbery and robbery, both Class A felonies, to be reduced to Class B felonies and for the Marion Superior Court to re-sentence accordingly.

Clinton Bryan Davis v. State of Indiana (mem. dec.)
29A02-1607-CR-1620
Criminal. Affirms Clinton B. Davis’ status as a sex or violent offender following his conviction for criminal confinement as a Level 5 felony. Finds that Davis’ obligation to register as a sex or violent offender does not run afoul of due process and the Sexual Offender Registry Act is not unconstitutional as applied to him.

Christen Hartsock v. Donald Fulkerson (mem. dec.)
62A05-1606-JP-1431
Juvenile paternity. Affirms the Perry Circuit Court’s order modifying Christen Harstock’s child custody. Finds there is evidence supporting the trial court’s findings that there has been a substantial change in circumstances and that modification was in the child’s best interest. Judge Patricia Riley dissents with separate opinion.