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Indiana Court Decisions – Nov. 9-21, 2016

November 30, 2016

Indiana Supreme Court

Nov. 16

Miscellaneous – University Police/APRA

ESPN and Paula Lavigne v. University of Notre Dame Police Department

71S05-1606-MI-359

Notre Dame Police are not a public agency, the Indiana Supreme Court ruled, turning back a lawsuit from ESPN that sought records of the university police’s interactions with student athletes. The ruling means Indiana’s Access to Public Records Act does not apply to university police at private institutions.

Justices affirmed St. Joseph Superior Judge Steven L. Hostetler, who dismissed ESPN’s case, but whose order was reversed by the Court of Appeals. “We too find that a private university police department is not a ‘public agency’ for the purposes of APRA, and affirm the trial court,” Justice Mark Massa wrote for the unanimous court.

The court also held that Notre Dame’s police department is not a “law enforcement agency” as defined under I.C. § 5-14-3-2(n)(6). Justices rejected ESPN’s argument that because NDPD exercised a function of government, the court should rule as other states have that their reports be accessible as public records.

“There is no evidence that our General Assembly intended a functional equivalency analysis, like that of Ohio’s, and we decline to read this language into the statute on the legislature’s behalf,” Massa wrote.

“Indiana’s Access to Public Records Act ‘is intended to ensure Hoosiers have broad access to most government records,’” Massa wrote, citing Evansville Courier & Press v. Vanderburgh Cty. Health Dept., 17 N.E.3d at 928. “Because we find the Department is not a ‘public agency’ subject to APRA, we affirm the trial court.”

Indiana Court of Appeals

Nov. 9

Juvenile – Paternity

Amy L. Brown v. Adrian Lunsford

82A04-1602-JP-357

The Indiana Court of Appeals has reversed a lower court order granting a man visitation with his ex-girlfriend’s daughter, concluding that third-party visitation should only be granted if it is in the best interests of the child.

Amy Brown gave birth to her daughter, S.B., in 2007. S.B.’s biological father is neither involved in her life nor listed on her birth certificate.

When S.B. was just over a year old, she and her mother moved into Adrian Lunsford’s home, and Lunsford and Brown had a son together shortly thereafter. Lunsford and Brown never married, and Brown and the children eventually left Lunsford’s home when S.B. was 4 years old.

After the separation, S.B. continued to visit Lunsford when he had parenting time with his son, A.L. However, Brown told the court she ended S.B.’s visitation with her ex because she noticed behavioral changes, such as crying, confusion and trouble at school. After the visitation stopped, Brown said her daughter’s behavioral issues also stopped.

Brown and the children moved to Tennessee in June 2015, and in September Lunsford requested an order granting him parenting time with S.B., calling her “his stepdaughter since he was the only parent that child had known.” The Vanderburgh Superior Court granted Lunsford visitation with S.B. one weekend per month.

Brown filed a motion to correct error and a motion to reconsider and/or rehearing, both of which were denied. She then appealed, arguing that the trial court lacked jurisdiction over S.B. because she was not an Indiana resident. But the Indiana Court of Appeals rejected that argument, writing that her argument was one of procedural error, not a jurisdictional issue, and further, that she had not lodged those claims in a timely manner.

Brown also argued that the judgment ordering visitation is void or invalid because Lunsford did not join S.B. as a necessary party to the paternity action he used as a vehicle for requesting visitation, as is required by state statute. But the Court of Appeals also rejected that argument, writing that the Indiana Supreme Court had previously held that “failure to name a child as a party in a paternity action does not necessarily render the judgment or agreement void, but merely voidable.” The court also noted that Brown had once again failed to raise the issue in a timely manner.

However, when looking at the merits of Brown’s claims, the Court of Appeals agreed that the Vanderburgh Superior Court had abused its discretion by granting Lunsford third-party visitation.

Although state appellate courts had allowed for third-party visitation in previous cases, the panel wrote that in Brown’s case, the unique facts — specifically her decision to deny Lunsford visitation with S.B. — show that Brown was acting within her right as a mother to deny her ex visitation in the best interest of the child. Thus, the trial court’s decision was an abuse of discretion.

__________

Nov. 10

Criminal – Toxicology Report/Meth

William C. Williams v. State of Indiana

82A04-1602-CR-295

The Indiana Court of Appeals has reversed a man’s conviction of operating a vehicle with meth in his blood and subsequently causing death after finding that the state failed to authenticate the toxicology report that found traces of drug in his blood sample.

William Williams was driving his motorcycle in August 2013 when he ran into the back of a van that was stopped at an intersection, ejecting his passenger and girlfriend, Nancy Parsons, who died from her injuries. Williams was also transported to the hospital, where a blood draw tested positive for THC and meth.

Williams was subsequently charged with two counts of Class B felony operating a vehicle with a Schedule I or II controlled substance, marijuana and meth, in his blood causing death. During the trial in Vanderburgh Superior Court, Williams testified that he did not know how meth could have been in his blood and objected to the admission of State’s Exhibit 65, which contained the toxicology report that showed meth in his blood and the chain of custody for his blood sample. All of Exhibit 65 except for the two pages of the toxicology report was submitted to the jury, and Williams was convicted on both counts.

Williams did not contest his marijuana conviction but instead appealed the conviction related to meth, arguing that the state failed to establish a chain of custody for his blood sample “so as to allow the admission of the results of tests showing it contained methamphetamine.”

A panel of the Indiana Court of Appeals agreed, writing that the state had failed to properly authenticate Exhibit 65 because its Certificate of Authenticity contained only a notary signature as a witness, not a signature of a records custodian or other qualified person.

But the state argued that it had properly authenticated the exhibit by the testimony of Jennifer Turri, an analyst with NMS Labs, which completed the toxicology report that found meth in Williams’ blood. Turri testified that she did not physically produce the report, but that a computer generated it after the results of the Williams’ blood sample test were submitted through the lab’s information system.

The Court of Appeals wrote that because Turri’s testimony only partially explained how the toxicology report was created and did not address the other components of Exhibit 65, her testimony did not authenticate the exhibit.

Thus, at the request of the state, the appellate court allowed Williams’ marijuana conviction to stand but reversed his conviction related to meth.

Juvenile – Termination of Parental Rights

In re the Termination of the Parent-Child Relationship of A.W. and G.A.S.: H .S. (Mother) v. The Indiana Department of Child Services

54A01-1604-JT-1090

A mother’s parental rights to her two children will be restored after the Indiana Court of Appeals found that the state Department of Child Services failed to prove that removing the children from their mother was in their best interests.

In 2011, H.S., the mother, married G.S., the father, and had one child together, G.A.S. The mother also had a child from a previous relationship, A.W., and together she and her husband raised both children.

After the couple got into a fight in March 2014, the police were called and arrested H.S. for possession of heroin and G.S. for violating a restraining order that H.S. had taken out against him. The Indiana Department of Child Services took protective custody of the children, and they were adjudicated as children in need of services.

H.S. was sentenced to probation in July, but she violated the terms twice and was instead sentenced to jail. G.S. was released from prison in May but was barred from living with his mother, E.S., who had custody of the children. When DCS discovered that the father had moved in with E.S., the children were removed from the home and placed in foster care.

DCS then filed a petition for the involuntary termination of H.S.’s parental rights to A.W. and both parents’ rights to G.A.S. During the hearings on DCS’ petition, both parents told the court that they intended to stay married and live in the same home after the mother’s release.

Despite the mother’s testimony, the trial court terminated H.S.’s rights to her children, but did not terminate the father’s rights to G.A.S. The court also concluded that DCS’ plan to have A.W. adopted by her foster parents was satisfactory.

H.S. appealed, arguing that the department had failed to show by clear and convincing evidence that there was a reasonable probability that the conditions that led to the removal of A.W. and G.A.S. would not be remedied.

The Indiana Court of Appeals agreed and reversed. Specifically, the appellate court wrote that because the trial court had terminated the mother’s rights, but not the father’s, it had undermined its finding that the conditions that led to the removal of the children would not be remedied.

H.S. was scheduled to be released from prison seven months after the hearing and intended to move back in with G.S. which would mean that she would also live with G.A.S. Further, the appellate court wrote that there was “seemingly nothing else” that H.S. could have done to demonstrate her commitment to becoming a better person and better parent to be reunited with the children, pointing specifically to the A.A. meetings, parenting classes and other similar programs she participated in while in prison.

Finally, the appellate court found that based on testimony at trial that the two children had a very close bond, DCS had failed to prove that separating A.W. from the rest of the family in favor of adoption was in the child’s best interests. The Court of Appeals therefore reversed the termination of H.S.’s parental rights to her children.•

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