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COA offers suggestion about judicial notice rule

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A paternity and child custody case has given the Indiana Court of Appeals a chance to examine a newly amended evidence rule for the first time, while simultaneously offering guidance to trial judges about using publicly accessible information to dispose of cases.

The state’s intermediate appellate court issued a ruling today in Paternity of P.R. and A.R.; H.B. v. J.R., No. 36A01-1005-JP-255, which for the first time gave a three-judge panel an opportunity to rule on a 2010 amendment to Indiana Evidence Rule 201 allowing courts to take judicial notice of any records from a court within this state.

This case out of Jackson Superior Court involves a mother and father who dated for four years but never married, and had two children in July 2004 and September 2005. Paternity was established in 2007 and the mother received sole custody, while the father was ordered to pay $150 per week in child support. In late 2009, the father asked to modify custody and support, based on the 27-year-old mother living with a man who had a past felony conviction for battery on a minor less than 14 years old, a conviction for supplying alcohol to a minor, and was reportedly being investigated by child protective services for alleged child abuse.

After a custody modification hearing, the trial court not only took that testimony into consideration but also a protective order that the mother had obtained against another man she had recently dated, relating to a felony battery conviction. The mother didn’t request a hearing or file any objection on that issue as allowed by Rule 201(e).

The trial court awarded custody to the father and allowed the mother parenting time, and also ordered that the father should receive a $60 per week credit to his child support arrearage for about 15 months.

On appeal, the mother argued that the trial court erred in considering the substance of the protective order she’d previously obtained because that document wasn’t admitted into evidence in this ongoing paternity and custody case.

The Court of Appeals noted that Evidence Rule 201 was amended in late 2009 and went into effect Jan. 1, 2010, meaning this is the first chance an appellate court has had to consider a case where it applies. Before the revision, a court could not take judicial notice of its own records in another case previously before it, even on a related subject with related parties. The revision states that the judicial notice can happen at any stage of the proceedings, and that a party doesn’t have to be notified before a court takes judicial notice.

The trial court properly took judicial notice of the protective order filed, the appellate judges found, and it doesn’t matter that the notice happened after the hearing was concluded.

“Although Mother was not afforded an opportunity to be heard before the court took judicial notice, Rule 201(e) provides that Mother could have made a timely request after judicial notice was taken,” Judge Nancy Vaidik wrote. “She, however, did not do this.”

Though the appellate panel concluded the trial judge correctly took judicial notice here, the appellate judges pointed out that a better course of action in this case would have been for the court to have given the parties notice and an opportunity to be heard before taking judicial notice and issuing an order.

“Undoubtedly, our information technology explosion has allowed our courts, as never before, to access reliable information that may aid in the just disposition of cases,” Judge Vaidik wrote. “Our Supreme Court, recognizing this, has encouraged courts to communicate with one another by establishing family courts and creating JTAC (Judicial Technology and Automation Committee), while liberalizing the judicial notice rule. But the danger of having a broad spectrum of information at the disposal of courts is that mistakes in input, inscription, and transmission can occur. To alleviate the danger of such errors, litigants must be given the opportunity to explain or respond to judicially-noticed information. We understand that the Indiana Rules of Evidence allow litigants to respond to this information at any stage of the proceeding, but we believe that, where practicable, the best practice is for courts to notify the parties before taking notice of and issuing a ruling which utilizes this information.”

Aside from that judicial notice issue, the appellate court also examined the custody modification and how the lower judge had issued findings on why changes were warranted under state statute and precedent. The panel affirmed the trial court’s ruling unanimously.
 

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  1. Good luck, but as I have documented in three Hail Mary's to the SCOTUS, two applications (2007 & 2013),a civil rights suit and my own kicked-to-the-curb prayer for mandamus. all supported in detailed affidavits with full legal briefing (never considered), the ISC knows that the BLE operates "above the law" (i.e. unconstitutionally) and does not give a damn. In fact, that is how it was designed to control the lawyers. IU Law Prof. Patrick Baude blew the whistle while he was Ind Bar Examiner President back in 1993, even he was shut down. It is a masonic system that blackballs those whom the elite disdain. Here is the basic thrust:https://en.wikipedia.org/wiki/Blackballing When I asked why I was initially denied, the court's foremost jester wrote back that the ten examiners all voted, and I did not gain the needed votes for approval (whatever that is, probably ten) and thus I was not in .. nothing written, no explanation, just go away or appeal ... and if you appeal and disagree with their system .. proof positive you lack character and fitness. It is both arbitrary and capricious by its very design. The Hoosier legal elites are monarchical minded, and rejected me for life for ostensibly failing to sufficiently respect man's law (due to my stated regard for God's law -- which they questioned me on, after remanding me for a psych eval for holding such Higher Law beliefs) while breaking their own rules, breaking federal statutory law, and violating federal and state constitutions and ancient due process standards .. all well documented as they "processed me" over many years.... yes years ... they have few standards that they will not bulldoze to get to the end desired. And the ISC knows this, and they keep it in play. So sad, And the fed courts refuse to do anything, and so the blackballing show goes on ... it is the Indy way. My final experience here: https://www.scribd.com/document/299040062/Brown-ind-Bar-memo-Pet-cert I will open my files to anyone interested in seeing justice dawn over Indy. My cases are an open book, just ask.

  2. Looks like 2017 will be another notable year for these cases. I have a Grandson involved in a CHINS case that should never have been. He and the whole family are being held hostage by CPS and the 'current mood' of the CPS caseworker. If the parents disagree with a decision, they are penalized. I, along with other were posting on Jasper County Online News, but all were quickly warned to remove posts. I totally understand that some children need these services, but in this case, it was mistakes, covered by coorcement of father to sign papers, lies and cover-ups. The most astonishing thing was within 2 weeks of this child being placed with CPS, a private adoption agency was asking questions regarding child's family in the area. I believe a photo that was taken by CPS manager at the very onset during the CHINS co-ocerment and the intent was to make money. I have even been warned not to post or speak to anyone regarding this case. Parents have completed all requirements, met foster parents, get visitation 2 days a week, and still the next court date is all the way out till May 1, which gives them(CPS) plenty of to time make further demands (which I expect) No trust of these 'seasoned' case managers, as I have already learned too much about their dirty little tricks. If they discover that I have posted here, I expect they will not be happy and penalized parents again. Still a Hostage.

  3. They say it was a court error, however they fail to mention A.R. was on the run from the law and was hiding. Thus why she didn't receive anything from her public defender. Step mom is filing again for adoption of the two boys she has raised. A.R. is a criminal with a serious heroin addiction. She filed this appeal MORE than 30 days after the final decision was made from prison. Report all the facts not just some.

  4. Hysteria? Really Ben? Tell the young lady reported on in the link below that worrying about the sexualizing of our children is mere hysteria. Such thinking is common in the Royal Order of Jesters and other running sex vacays in Thailand or Brazil ... like Indy's Jared Fogle. Those tempted to call such concerns mere histronics need to think on this: http://www.msn.com/en-us/news/us/a-12-year-old-girl-live-streamed-her-suicide-it-took-two-weeks-for-facebook-to-take-the-video-down/ar-AAlT8ka?li=AA4ZnC&ocid=spartanntp

  5. This is happening so much. Even in 2016.2017. I hope the father sue for civil rights violation. I hope he sue as more are doing and even without a lawyer as pro-se, he got a good one here. God bless him.

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