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Opinions Oct. 10, 2013

October 10, 2013
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Indiana Court of Appeals
In the Matter of the Termination of the Parent-Child Relationship of E.T., D.T., L.T., and Y.T., Minor Children: M.T., v. Indiana Dept. of Child Services and Lake County Court Appointed Special Advocate
45A03-1302-JT-49
Juvenile. Affirms termination of parental rights. The mother has not demonstrated that the trial court clearly erred when it determined that continuation of the parent-child relationship with the children poses a threat to their well-being. Nor has she shown that termination is not in the best interest of the children or that the court erred when it determined that adoption is a satisfactory plan following the terminations.

Kevin C. Stone v. Jennifer M. Stone
49A02-1210-DR-820
Domestic relation. Grants rehearing to acknowledge that father did file a reply brief in the case, but affirms original opinion in all respects, including that his supervised visitation argument is moot.

In the Matter of the Termination of the Parent-Child Relationship of C.W. (Minor Child), and J.W. (Mother), v. The Indiana Department of Child Services
26A01-1303-JT-113
Juvenile. Affirms termination of parental rights. The mother has not shown that she was denied due process in the CHINS proceedings or termination proceedings. The DCS established by clear and convincing evidence the requisite elements to support the termination of parental rights.

Nathan and Deanna Ferguson v. Shiel Sexton Company, Inc., WR Dunkin & Son, Inc., Lynch, Harrison & Brumleve, Inc., et al.
29A05-1301-CT-8
Civil tort. Affirms summary judgment in favor of Poynter Sheet Metal Inc. on the issue of duty in the Fergusons’ negligence action. They sought damages for injuries Nathan Ferguson sustained in a construction accident. The Fergusons failed to establish the trial court erred in granting summary judgment.

Dustin Jack Gifford v. State of Indiana
40A05-1304-CR-197
Criminal. Reverses Class D felony conviction of possession of chemical reagents or precursors with intent to manufacture a controlled substance. The state presented insufficient evidence to support the conviction.

John Einhorn and Roxanne Einhorn v. Scott Johnson, Gretchen Johnson, Purdue University Board of Trustees, et al.
50A03-1303-CT-93
Civil tort. Affirms in part and reverses in part summary judgment in favor of the defendants on the Einhorns’ complaint for damages alleging negligence. Because John Einhorn was not Purdue’s employee at the time of the accident, his negligence claim against Purdue is not barred by the exclusivity provision of the Worker’s Compensation Act. Purdue and 4-H Fair Association are entitled to summary judgment as a matter of law under the Equine Activity Statute. The Johnsons are entitled to summary judgment as a matter of law because they did not know or have reason to know that the horse Clu had any dangerous propensities prior to the accident.

Coady Coyote Craddick v. Indiana Department of Correction (NFP)

52A02-1211-MI-942
Miscellaneous. Affirms dismissal of complaint against the DOC alleging it violated the Ex Post Facto Clause of the Indiana Constitution by classifying Craddick as a sex offender.

Fredrick D. McClure v. State of Indiana (NFP)

18A02-1302-CR-196
Criminal. Affirms trial court determination that McClure’s previously stayed sentence was eight years rather than four years.

Jason Hays v. State of Indiana (NFP)
28A04-1303-CR-109
Criminal. Affirms conviction of Class B felony operating a vehicle with a controlled substance in blood causing death.

Joseph A. Kast v. State of Indiana (NFP)
02A04-1301-CR-35
Criminal. Affirms 65-year sentence for murder conviction.

Tabatha Murphy v. State of Indiana (NFP)
30A04-1302-CR-82
Criminal. Affirms convictions of Class C felony battery with a deadly weapon, Class C felony battery resulting in serious bodily injury and Class A misdemeanor battery.

Ryan Thomas Johnston v. State of Indiana (NFP)
29A02-1212-CR-1014
Criminal. Affirms revocation of probation.

David Roy Winters v. State of Indiana (NFP)
71A03-1302-CR-41
Criminal. Affirms conviction and sentence for Class A misdemeanor conversion.

In Re The Involuntary Termination of the Parent-Child Relationship of R.C. and M.C.: Ro.C. (Father) v. The Indiana Department of Child Services (NFP)
49A02-1303-JT-194
Juvenile. Affirms involuntary termination of parental rights.

The Indiana Supreme Court and Tax Court posted no opinions by IL deadline. The 7th Circuit Court of Appeals posted no Indiana decisions by IL deadline.
 

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  1. I grew up on a farm and live in the county and it's interesting that the big industrial farmers like Jeff Shoaf don't live next to their industrial operations...

  2. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  3. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  4. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  5. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

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