The judges on an Indiana Court of Appeals panel had different reasons for affirming the denial of an incarcerated man’s petition to modify his probation so that he could have contact with his daughter.
Adam Anthony Howe is incarcerated for a 2005 physical altercation with his daughter’s mother at her home, during which he shot his former mother-in-law in the face in front of his daughter, M. As part of his sentence, he will be on probation for 10 years after his possible release in 2023.
Howe sought modification of an order of protection after learning from the probation department that he is not to have contact with his child. Howe argued that M. was not a victim of the crime and he wanted a relationship with his daughter, who was 12 at the time he sought the modification. Howe’s ex-wife objected to the request, citing their daughter’s issues stemming from the incident.
The trial court denied the petition last year, and Howe appealed pro se in Adam Anthony Howe v. State of Indiana, 12A02-1405-CR-320.
Judge Elaine Brown, writing the majority opinion, found that M. is an eligible person for protection within the meaning of I.C. 35-38-2-2.3 because “there is little doubt that a child is a protected individual when her parents engage in a physical altercation involving a firearm, her grandmother is shot, and her father is incarcerated as a result of his crimes.” The majority, which also included Judge L. Mark Bailey, held that Howe may petition the divorce court for a parenting time order and, depending upon its findings, request the criminal court for relief from the no contact order to the extent necessary to exercise any parenting time ordered.
Judge Margret Robb concurred in a separate opinion, writing that she would affirm because there is nothing yet to modify as to Howe’s probation because he has not yet begun serving it. She believed the specific terms under which the no contact order was imposed make it applicable only when Howe is actually serving his probation, which won’t begin until 2023 at the earliest. Robb also pointed out that M. was never mentioned during the discussion of the no contact order, so she would extrapolate that the use of “victims” encompassed only M.’s mother and grandmother, who were discussed in court.