Indiana Court Decisions — Aug. 29-Sept. 12, 2018

7th Circuit Court of Appeals

Aug. 29

Civil Tort — Adverse Employment Action/Fair Credit Reporting Act

Shameca Robertson v. Allied Solutions, LLC

17-3196

After a woman failed to receive a report as to why her job offer was rescinded, the 7th Circuit Court of Appeals reversed a district court’s dismissal of her adverse-action claim for lack of jurisdiction.

Allied Solutions, LLC offered Shameca Robertson a job, but rescinded the offer after it ran a background check before Robertson reported to work. The report revealed certain “non-conviction information” about Robertson, who alleged she was told the offer was rescinded “because of information in her ‘criminal background check’ report.” She was not offered any more reason as to why.

Under the Fair Credit Reporting Act, Allied was required to alert Robertson clearly and conspicuously of its intent to obtain the report in writing, unadorned by any additional information, securing her consent.

Roberston argued the forms she received were neither clear nor conspicuous, and included extraneous information. She also contended that her offer was rescinded before she was supplied with a copy of the report or a written summary of her FCRA rights.

Both parties reached a tentative settlement agreement in April 2016. Several months later, the 7th Circuit ruled in Groshek v. Time Warner Cable, Inc., 865 F.3d 884 (7th Cir. 2017), that an injury functionally indistinguishable from the one underpinning Robertson’s notice claim was not concrete and did not confer standing. The district court then ordered Robertson to show cause why her case should not be dismissed for the same reason.

Shameca Robertson v. Allied Solutions, LLC, 17-3196, was eventually dismissed for lack of standing. On appeal, Robertson challenged that by withholding her background report, Allied limited her ability to review the basis of the adverse employment decision and impeded her opportunity to respond. She contended the ability to respond was the substantive purpose for which the Act compels employee disclosure.

Section 1681b(b)(3)(A) of the FCRA provides that before taking adverse action, the person intending to take such adverse action should provide to the consumer to whom the report relates: “(i) a copy of the report; and (ii) a description in writing of the rights of the consumer under this subchapter.”

With that knowledge, the 7th Circuit found that Robertson’s injury was “concrete and particular to her” and that the remaining criteria for standing, causation and redressability, were also present. The court held that Robertson adequately alleged that what Allied divulged was insufficient under the act.

“Only subpart (A) compels disclosure of the report itself, and that provision requires disclosure prior to any adverse action,” Chief Judge Diane Wood wrote. “This unique pre-adverse action requirement assures that the applicant will have a chance to review the actual document on which the employer relied, and that she can do so with time to respond to unfavorable information.”

“Because the alleged injury is concrete and Robertson otherwise alleged enough to support her Article III standing on her adverse-action claim, we reverse the judgment of the district court dismissing that claim for lack of standing and remand for further proceedings,” Wood concluded.
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Sept. 11

Criminal — Robbery/Juvenile Waiver

United States of America v. D.D.B.

17-2563

A juvenile accused of robbing a pharmacy might not be tried in federal criminal court because attempted robbery is not considered a violent crime in Indiana, the 7th Circuit Court of Appeals ruled, vacating the teen’s waiver to be tried as an adult.

D.D.B. was arrested with an adult accomplice shortly after an Indianapolis pharmacy robbery, after which the government moved in May 2017 to waive him to federal criminal court. Chief Judge Jane Magnus-Stinson of the Southern District of Indiana, Indianapolis, granted the waiver about two months later, based on D.D.B.’s first juvenile delinquency adjudication, for what would have been attempted robbery if committed by an adult.

“The district court held that (attempted robbery) is indeed a crime of violence,” one of the requirements for juvenile waiver to criminal court, Judge Ilana Rovner wrote for the panel in Untied States of America v. D.D.B., 17-2563.

“At first blush, it seems like the answer to the question ‘is Indiana attempted robbery a violent crime?’ has been unequivocally answered by two recent decisions from this court, United States v. Duncan, 833 F.3d 751 (7th Cir. 2016), and Hill v. United States, 877 F.3d 717 (7th Cir. 2017). In Duncan, we held that robbery under Indiana law qualifies as a violent felony. … And in Hill we held that ‘[w]hen a substantive offense would be a violent felony under § 924(e) and similar statutes, an attempt to commit that offense also is a violent felony.’”

But in vacating D.D.B.’s waiver from juvenile court, the panel noted Indiana’s armed robbery statute lacks an intent element, “and so a conviction by itself does not establish that the defendant had intent. He could simply knowingly take a substantial step toward the taking of property through force or fear. One would have to look behind the conviction to the underlying facts to know if he had the intent to commit the crime, and this we cannot do,” Rovner continued.

“One way to view the reasoning in Hill is to say that under the definition of attempted robbery in Illinois, once a person intends to attempt to commit robbery, that person has made a decision that she is ‘all in’ on all aspects of the crime, including the violence.

“… We can logically say, therefore, that the ‘attempt to commit the crime necessarily includes an attempt to use or to threaten use of physical force against the person or property of another,’” Rovner concluded. “But we cannot say the same about the person who is attempting robbery in Indiana. We do not know what the Indiana robber’s intent was if the crime has been interrupted and has merely been attempted, but not completed, as a conviction for attempt does not require proof of intent.”

The panel also concluded D.D.B.’s appeal was timely, as it was an appeal from a juvenile proceeding, a civil matter in which 60 days are allowed for filing appeals.

On remand, the panel noted, the district court may consider either of D.D.B.’s two other predicate delinquency adjudications — burglary and conspiracy to commit robbery — to see if they meet the legal threshold of violent crimes that would allow the government to try him as an adult.

Indiana Supreme Court

Aug. 29

Attorney Discipline — Suspension/Prosecutorial Misconduct

In the Matter of Trista A. Hudson

64S00-1705-DI-325

The Indiana Supreme Court suspended a former Porter County deputy prosecutor from the practice of law for 18 months for withholding evidence that an alleged victim said he had been coached to lie and had recanted allegations of child molestation.

Trista Hudson was fired in May 2017 by Porter County Prosecutor Brian Gensel for failing to reveal that one of two victims fabricated at least part of the accusations against Eric Knowles. Knowles was charged in 2013 with five counts of child molestation, and Hudson prosecuted a Class A felony count against him in 2016 in which the Disciplinary Commission charges “there was no credible evidence.”

Knowles was acquitted after being held without bail for three years. After learning of Hudson’s alleged failure to disclose the false testimony to the defense, then-Porter Superior Judge William Alexa said he would refer the matter to the Disciplinary Commission.

The commission charged Hudson with violating Indiana Professional Conduct Rules 3.8(a), 3.8(d), and 8.4(d) when she put an alleged victim on the stand to testify after the child recanted the accusation against Knowles, his stepfather.

Hudson was also accused of making false statements in reply to the Commission’s investigation, violating Rules 8.1(a) and 8.4(c). The commission found that a colleague in the Porter County prosecutor’s office agreed with Hudson’s strategy for dealing with the witness’s recantation and allegations of coaching “is knowingly false.” The hearing officer concluded that the commission had not met its burden of proving the charges by clear and convincing evidence.

Hudson sought the high court’s review of the hearing officer’s conclusions that she violated Rules 3.8(d) and 8.4(d).

In the count involving Rule 3.8(a), Hudson conceded that she violated the rule, but attempted to cast her violation as a “formal” one, in that one the child molesting count technically was left “in the case” as Knowles’ trial commenced but otherwise was abandoned by the prosecution.

“The hearing officer did not agree with this reductive view, nor do we,” the high court wrote in its per curium order. “Respondent gave no indication that Count II was being abandoned when the court reviewed with counsel the proposed preliminary instructions (which included an instruction on the Count II charge), nor did she do so when those instructions were given to the jury orally and in writing.”

The high court noted that immediately after the preliminary instructions were given to the jury, Hudson told the jury in her opening statement that “[a]t the end of the evidence . . . I will ask you to find this Defendant guilty in what he is charged with, the four counts of child molesting.”

Next, Hudson admitted she failed to disclose E.C.’s recantation to the defense, but she argued that Rule 3.8(d) did not require her to do so. She contended that E.C.’s recantation was merely impeachment evidence, which Rule 3.8(d) does not encompass.

The high court disagreed, noting that Rule 3.8(d) requires timely disclosure of “all evidence or information known to the prosecutor that tends to negate the guilt of the accused” and that under the circumstances, the recantation was not impeachment evidence.

“… (I)n a case in which all remaining counts likewise were founded entirely upon reports made by Defendant’s two stepchildren, we find it very difficult to characterize direct evidence that the stepchildren’s father successfully coached at least one of them to lie about what Defendant had done as mere impeachment,” the high court wrote.

Finally, Hudson argued her conduct was not “prejudicial to the administration of justice” within the meaning of Rule 8.4(d), but the high court disagreed. Hudson contended Knowles was never actually at risk of conviction of Count II, notwithstanding its inclusion in the trial, because Respondent elicited no evidence to support that count. She also argued the trial court “overreacted” in entering judgment of acquittal on all four counts and instead should have taken less drastic remedial action.

“Even assuming that the trial court had other options within its discretion to exercise, we are not inclined to shift culpability for the prejudicial effects of an attorney’s misconduct onto the court forced to take remedial action to address that misconduct,” the high court concluded.

The justices ultimately found that Hudson violated Rules 3.8(a), 3.8(d), and 8.4(d) in In the Matter of Trista A. Hudson, 64S00-1705-DI-325. Thus, the justices imposed an 18-month suspension without automatic reinstatement, effective October 10.

At the end of the 18-month period, Hudson can petition for reinstatement if she pays the costs of the proceeding, fulfills the duties of a suspended attorney and satisfies the requirements for reinstatement under Indiana Admission and Discipline Rule 23(18).

Indiana Court of Appeals

Sept. 6

Post Conviction — Res Judicata/Authority to Grant

State of Indiana v. Matthew Stidham

18A02-1701-PC-68

Post-conviction relief was revoked from a man convicted of murder and sentenced to 141 years in prison after the Indiana Court of Appeals found res judicata barred him from making a claim for relief.

Matthew Stidham was twice convicted in 31-year-old Daniel Barker’s 1991 kidnapping and murder. Barker was beaten and stabbed 47 times and thrown into a river after Stidham and several of his friends began attacking Barker at his apartment after horseplay gone wrong. The group, including then-17-year-old Stidham, gagged Barker, loaded him into a van, and drove him to a secluded area where he was thrown into the Mississinewa River.

Stidham received a 141-year sentence and eventually petitioned for post-conviction relief in February 2016, proposing findings of fact and conclusions of law that concluded his sentence should be ordered reduced to time served based on his exemplary behavior and progress while in prison.

In March, a Delaware Circuit judge resentenced Stidham to consecutive terms of 60, 50 and 20 years for his murder, robbery and criminal confinement convictions in the killing. Stidham’s final conviction for Class C Felony battery was suspended, the remainder of that eight-year sentence ordered to be served under supervised probation. A day after the trial court ordered Stidham released, the Court of Appeals granted the state’s motion to stay the order.

On appeal, the state contended that Stidham was erroneously granted post-conviction relief and that the challenge of his sentence is barred by res judicata Stidham argued that his direct appeal addressed whether double jeopardy barred some of his sentences and whether his sentence was unreasonable. He also argued that no claim was made that his sentence was unconstitutional.

But the appellate court found that Stidham did not allege that he filed a petition for sentence modification or that he had the consent of the prosecuting attorney as required under Ind. Code § 35-38-1-17 at the time his petition was filed in February 2016.

“Based upon the arguments in his 1993 brief and in his petition for postconviction relief, we conclude that the controversy adjudicated by the Indiana Supreme Court in 1994 determined this issue and that the doctrine of res judicata precludes Stidham’s claim,” Judge Elaine Brown wrote.

“We cannot say that Stidham filed a proper modification of his sentence pursuant to Ind. Code § 35-38-1-17(k) or that the post-conviction court had the authority to modify the sentence.”

The appellate court held that the post-conviction court had no authority to modify the petitioner’s sentence following the time limit in Ind. Code § 35-38-1-17, “in light of the fact that the post-conviction rules do not provide for modification of a sentence which has been established by the Legislature as appropriate for the offense and which has been found to be constitutional.”

Judge Melissa May wrote separately that she was “constrained to concur” with the majority’s determination that the doctrine of res judicata prohibits the appellate court from reconsidering the appropriateness of Stidham’s sentence.

“Our understanding of juvenile offenders and of the factors to consider when determining an appropriate sentence for juveniles have changed greatly in the twenty-five years since seventeen-year-old Stidham received his 141-year sentence,” May wrote. “Thus, were we able to consider the merits of Stidham’s argument, it may be that his 141-year sentence is inappropriate in light of his offenses and character.”

However, May noted that Stidham challenged his sentence on Eighth Amendment grounds in his 1993 appellate brief and the high court addressed his sentencing arguments, leaving no place for the appellate court to serve as a “coordinate court.”

For the foregoing reasons, the appellate court reversed Stidham’s grant of post-conviction relief in State of Indiana v. Matthew Stidham, 18A02-1701-PC-68.

Post Conviction — Acceptance of Agreement

Jonathan Hummel v. State of Indiana

75A03-1710-PC-2449

The Indiana Court of Appeals reversed a post-conviction court’s ruling after it found a special judge erred when he granted his own motion to correct error based on his belief he did not have the authority to accept an agreement between the defendant and the state.

In April 2012, Jonathan Hummel pleaded guilty to Class A felony dealing in a narcotic drug, two counts of Class B felony robbery, and Class D felony criminal mischief. In return for his guilty plea, the state dismissed all other pending cases, and Hummel was sentenced 31½ years in prison.

After his petition for post-conviction relief was filed in December 2015, Hummel moved for the judge’s recusal, and Judge Michael Shurn was appointed a special judge in Starke Circuit Court. During the evidentiary hearing on Hummel’s petition, both Hummel and the state agreed to modifying Hummel’s sentence to include purposeful incarceration. In exchange, Hummel requested his petition for PCR be dismissed, which the special judge accepted.

However, 45-minutes later, Shurn informed the parties he did not have authority to modify Hummel’s sentence because he was only appointed to preside over the PCR case. The special judge then revoked his approval of the agreement and reinstated Hummel’s PCR case. The special judge later denied Hummel’s motion to correct error.

In his pro se appeal, Hummel argued the special judge had the authority to accept the agreement between him and the State, and requested the appellate court clarify the special judge’s authority to accept such agreements. Hummel further insisted the state be bound by the agreement it made with him.

The State cross-appealed, arguing that the appeal in Jonathan Hummel v. State of Indiana, 75A03-1710-PC-2449, should be dismissed because it is not a final, appealable order. It also contended that Hummel did not follow the correct procedure to proceed with an interlocutory appeal, that he waived the issue by not presenting a cogent argument, and the special judge was ultimately correct in his assertion of lack of authority.

However, the appellate court found that the order from which Hummel appealed is a final appealable order under Indiana Trial Rule 59 and was not subject to dismissal on the state’s asserted ground.

Additionally, the appellate court relied on Indiana Supreme Court precedent in Johnston v. Dobeski, 739 N.E.2d 121, 123 (Ind. 2000) that stated an agreement between a prisoner and the county prosecutor was valid and the post-conviction court had the authority to accept an agreement that included a sentence different than that imposed at trial and to dismiss the post-conviction petition.

“Despite this precedent in favor of Hummel’s position, the state argues Special Judge Shurn did not have authority to accept the agreement to modify the sentence … but rather only had the authority to grant or deny the relief sought by Hummel in his petition for post-conviction relief,” Judge Melissa May wrote for the court.

“To accept the state’s argument appears to eliminate the possibility that a special judge could ever preside over a PCR action. Our Indiana Supreme Court has held a PCR court has the authority to accept agreements presented to it that modify the sentence in the underlying criminal case and we now hold that the authority vested in the judge presiding over a PCR action must be the same, whether that judge is an elected judge, a judge pro tempore, or a special judge,” May continued.

The appellate court found Shurn erred when he granted his own motion to correct error based on his belief he did not have the authority to accept the agreement reached by the state and Hummel. The COA also also denied the state’s cross-appeal request to dismiss Hummel’s appeal.

The panel remanded for the post-conviction court to re-enter its original order enforcing the parties’ agreement and dismissing Hummel’s PCR petition.
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Sept. 7

Juvenile Termination of Parental Rights — Reversal/Due Process Violation

In re the Termination of the Parent-Child Relationship of J.K., B.K., and I.R. (Minor Children) and L.R. (Mother) v. Indiana Department of Child Services

18A-JT-529

The Indiana Court of Appeals reiterated harsh words at the Department of Child Services and Indiana trial courts after it reversed another case involving the failure to afford due process protections to families in termination of parental rights cases.

Mother L.R. was facing a petition to terminate her parental rights to her three minor children. She failed to appear for a “status of counsel” hearing, prompting the Vanderburgh Superior Court to enter a default judgment against her. On DCS’s motion, the trial court terminated L.R.’s parental rights on that basis alone, and though L.R. filed a timely motion to correct error, she was denied the opportunity to explain her failure to appear at the hearing. DCS conceded that L.R. “was not provided the due process protection to which she is entitled” and that the court’s termination order failed to enter findings of fact and conclusions of law as required by Indiana Code section 31-35-2-8.

On July 9, the appellate court issued an order addressing similar due process violations in termination of parental rights cases from Indiana trial courts statewide. That order noted that over a six-month period, DCS had filed eight motions to remand in separate, but substantially similar cases, instead of filing an appellate brief.

That order found that by filing a motion to remand, “DCS has successfully avoided defending repeated, significant violations of due process in termination of parental rights cases.”

“The increasing frequency of these motions suggest that there are repeated, significant violations of due process occurring in termination of parental rights cases throughout this state,” Judge Paul Mathias wrote. “This is a disturbing trend given the fundamental rights at issue in these types of cases.”

Mathias cited In re the Termination of the Parent-Child Relationship of J.K., B.K., and I.R. (Minor Children) and L.R. (Mother) v. Indiana Department of Child Services, 18A-JT-529, as one such case referenced in the July 9 order, reprimanding both DCS and the trial courts for falling short.

“While the Court commends DCS for essentially conceding error in these cases, the Court is obligated to formally admonish DCS for its failure to afford litigants throughout this state the due process rights they are owed,” the court order continued. “Furthermore, the Court also reminds the trial courts throughout this state of their duty to ensure that litigants’ due process rights are not violated.”

The court reversed the termination order against L.R. and remanded the case for proceedings. The COA decision comes nearly two months after the July 9 order, which was specifically directed to Vanderburgh Superior Judge Brent J. Niemeier and Magistrate Judge Renee A. Ferguson, who presided in L.R.’s case. The COA’s July 9 published order also directed a copy of the order to be placed in four other Vanderburgh County TPR cases identified by case number.
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Sept. 10

Criminal — Resentencing/Prosecutorial Consent

Jeremy Schmitt v. State of Indiana

83A04-1711-CR-2720

The Indiana Court of Appeals found that prosecutorial consent was not required for an offender’s third sentence modification petition after an amended state statute removed that requirement in 2015.

After pleading guilty to murder, Jeremy Schmitt was sentenced to 50 years for Class A felony conspiracy to commit murder. Since 2005, Schmitt filed for a modification of his sentence three times, all denied by the Vermillion Circuit Court.

In May 2017, Schmitt filed his third petition for sentence modification and listed the many programs, education and employment he had completed while incarcerated. Though the trial court acknowledged and complimented his positive strides during incarceration, it ultimately denied his petition.

On appeal, Schmitt argued the trial court erred by not ordering the Department of Corrections to produce a new progress report and by not holding a hearing. However, the appellate court found there was no indication that the trial court had made a preliminary determination to reduce or suspend Schmitt’s sentence, therefore it was not required to hold a hearing for Schmitt.

In his second argument, Schmitt cited Woodford v. State, 58 N.E.3d 282 (Ind. Ct. App. 2016), which held petitions for modification filed prior to the effective date of the 2015 amendment of Indiana Code section 35-38-1-17 did not count toward the two petitions a petitioner could file without prosecutorial consent.

Schmitt filed two petitions prior to 2015, and one in 2017. He contended in Jeremy Schmitt v. State of Indiana, 83A04-1711-CR-2720, that the 2017 petition was his first petition under the 2015 amendment. The State acknowledged the Woodford holding, but still argued Schmitt had exceeded his petition limits.

“Schmitt’s situation is analogous to Woodford,” Judge Melissa May wrote. In its decision, the appellate court rejected the State’s argument and noted that pursuant to Woodford, prosecutorial consent was not required for Schmitt’s 2017 petition because he had not yet exceeded two filed petitions since the 2015 amendment.

“Because the two-petition limit includes only such petitions as have been filed since the statute was amended in 2015, Schmitt’s petition is effectively the first petition he has filed, and prosecutorial consent was not required,” May wrote.

Lastly, Schmitt argued that because the trial court did not explain its reasons for denial, that denial could have been “premised upon the State’s objection or a belief in that the original sentence was appropriate.”

But the appellate court declined to review the order for an abuse of discretion after determining it was unclear whether the trial court was operating under a misapprehension of its authority.

“The trial court’s order denying the modification notes the prosecutor objected,” May wrote. “These two facts suggest the trial court may have been under the impression it was required to have prosecutorial consent to modify Schmitt’s sentence.”

“Although a trial court is not required to explain its reasons for denial, because the trial court mentioned the State’s response in its order, we reverse that denial and remand for the trial court to review Schmitt’s petition on its merits.”

Civil Tort — Code Enforcement/Indiana Unsafe Building Law

City of Charlestown, Indiana, et al. v. Charlestown Pleasant Ridge Neighborhood Association Corporation, et al.

10A01-1712-CT-2896

A special judge’s ruling that preliminarily enjoined the city of Charlestown from inconsistently imposing code violation fees while simultaneously finding the city was not subject to the state’s Unsafe Building Law has been overturned. The Indiana Court of Appeals ruled that the trial court erred in finding the UBL does not apply to the city, thus requiring remand for re-examination of how local and state regulations should work together.

The case of City of Charlestown, Indiana, et al. v. Charlestown Pleasant Ridge Neighborhood Association Corporation, et al., 10A01-1712-CT-2896, traces back four years to 2014, when the southern Indiana city first considered redeveloping Pleasant Ridge, a neighborhood in Charlestown that is comprised of World War II-era homes. According to city attorney Michael Gillenwater, the homes were only intended to stand for roughly 10 years, but many remain today and have fallen into disrepair.

Thus, the city, under the direction of Mayor Bob Hall, sought to use federal blight elimination funds to redevelop the neighborhood. That plan was scratched after residents objected, and the city instead began using code enforcement and fines to revitalize the neighborhood.

Specifically, the city council passed a series of ordinances that allowed inspection of Pleasant Ridge homes beginning in August 2016 and non-waivable fines for code violations. Meanwhile, local developer John Neace formed Pleasant Ridge Redevelopment, LLC, a redevelopment company that began offering to buy Pleasant Ridge homes for $10,000. Through an agreement with the city, Neace was not required to pay fines on the homes he purchased in exchange for his promise to eventually demolish them.

All of this, residents claimed, was part of Hall’s plan to raze Pleasant Ridge and build nicer homes in its place, leaving them without affordable housing options. Gillenwater, however, told Indiana Lawyer in November that the city had helped subsidize a new housing development where Pleasant Ridge residents could move into energy-efficient homes with lower utility bills and increased home equity.

Despite that assertion, a group known as the Pleasant Ridge Neighborhood Association and some of its resident members sued the city and its Board of Works, arguing the code enforcement plan violated local, state and federal laws, including the local property maintenance code, the Unsafe Building Law and federal and state constitution protections. The residents and neighborhood association — which was fined nearly $9,000 for code violations — sought injunctive relief.

Special Judge Jason Mount of Scott County granted the preliminary injunction against the city, finding the local property maintenance code requires the city to “provide a reasonable opportunity to make repairs before fines may be imposed.” That was not done here, Mount said, pointing to the fact that fines began accruing against the neighborhood association immediately and daily, even before it was made aware of the code violations found in a duplex it owns.

Mount also said the city violated equal protection laws by imposing fines on the residents, but not on Neace’s LLC. However, the special judge said the plaintiffs’ claim under the Unsafe Building Law likely would not succeed because, under the Home Rule Act, local ordinances superseded that law.

Mount’s ruling on the UBL formed the basis of the Court of Appeals’ reversal. The panel agreed with the homeowners’ cross-appeal that the trial court erred in concluding Charlestown is not required to adhere to the UBL because of the Home Rule Act, noting the city voluntary agreed to adopt the law in 2001.

“It is true, as the City asserts, that the Home Rule Act implements the ‘policy of the state … to grant units all the powers that they need for the effective operation of government as to local affairs,’” Judge Terry Crone wrote for the unanimous court. “…However, the Home Rule Act also provides that ‘(i)f there is a constitutional or statutory provision requiring a specific manner for exercising a power, a unit wanting to exercise the power must do so in that manner.’

“… Moreover, the PMC explicitly provides, ‘This ordinance does not supersede Federal or State laws, statutes or regulations, except as allowed,’” Crone said.

The court remanded the case for the trial court “to consider how the UBL and the (property maintenance code) work together in light of our conclusion that the City is bound to enforce the PMC in accordance with the UBL, and to reconsider the Homeowners’ claim that the City’s manner of enforcing the PMC violates the UBL.” The court also noted the residents’ remaining claims would have to be re-examined as well, if they chose to continue to pursue those claims. However, the judges declined to address the issues raised by the city in its appeal of the preliminary injunction.

In a statement released after the decision, the Virginia-based Institute for Justice, which brought the lawsuit on behalf of the Pleasant Ridge residents, claimed the ruling as a victory that provides “procedural protections from overzealous city code enforcement.”

“Today’s opinion is another rebuke to the city of Charlestown’s reckless disregard for state law,” IJ senior attorney Anthony Sanders said in the statement. “This includes a cap on the amount of fines, and a mandate that fines can only be issued against recalcitrant property owners. The city has wantonly ignored those protections through issuing immediate fines against property owners in its illegal quest to force them to sell their properties to developer John Neace.”
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Sept. 11

Juvenile Termination of Parental Rights — Reversal/Denial of Due Process

In the Matter of the Termination of the Parent-Child Relationship of C.M.S.T., T.M., & M.M. (Children) and A.S. (Mother) and R.T. (Father); et al. v. The Indiana Department of Child Services

18A-JT-530

For the second time in less than a week, Indiana trial courts and the Department of Child Services have been chastised for denying due process in termination of parental rights cases. This time, the matter involves a DCS case manager who had a sexual relationship with a case client among a host of troubling facts.

Reversing and remanding a case to Spencer Circuit Court, the Indiana Court of Appeals on Sept. 11 dealt with the latest in a string of cases in which DCS acknowledged a lack of due process. The COA concluded the case was marked by “egregious behavior” of DCS employees and “unusual and alarming circumstances.”

In the case In the Matter of the Termination of the Parent-Child Relationship of C.M.S.T., T.M., & M.M. (Children) and A.S. (Mother) and R.T. (Father); et al. v. The Indiana Department of Child Services, 18A-JT-530, mother A.S. and father R.T. had their parental rights terminated. But on appeal, DCS conceded as it has in multiple recent cases that the parents’ due process rights had been violated.

DCS became involved in the instant case in March 2015, after a report that mother and father were involved in a domestic violence-related altercation and that mother used methamphetamine. Children T.M. and C.M.S.T were removed from their care, adjudicated children in need of services and placed in foster care. Mother and father were ordered to participate in services.

DCS’s “egregious behavior” began in October 2015, when former family case manager Marilyn Neal filed a false report saying that father “went to [C.M.S.T.’s] school, made a scene, and tried to take [C.M.S.T.],” according to the record. Neal was fired, another case manager briefly handled the matter, then was replaced by family case manager Megan Ginanni, who was also working with Father on a CHINS case for one of his other children.

“At some point during her time working on the case, FCM Ginanni and Father began exchanging Facebook messages, which became sexually explicit in nature. FCM Ginanni and father also engaged in a sexual relationship. Father testified FCM Ginanni would give him advanced notice of drug screens and told him he did not need to continue engaging in certain services. Father testified FCM Ginanni told him he ‘would get reunified [with C.M.S.T.] and she would live with me and she was gonna (sic) help me get [Father’s other child] as well,’” Judge Melissa May wrote.

DCS ultimately fired Ginanni due to the inappropriate relationship. During this time, mother had been compliant with services until she self-reported meth use in September 2016, after which her children were again removed. Mother contacted DCS in December 2016 to ask for help finding an inpatient drug treatment facility.

The record also shows the trial court denied grandparental motions to intervene seeking to have the children placed with maternal grandparents, but there is no explanation in the record why their motion was denied. The same month as the grandparents’ motion was denied, termination of parental rights hearings began, and the court terminated mother and father’s parental rights five months later.

In June, though, facing this appeal, DCS conceded the parents’ due process rights had been violated in the termination process, but the Court of Appeals denied DCS’s motion to remand.

“We cannot agree that the egregious behavior of some of the DCS employees did not contribute to Mother’s and Father’s non-compliance with some services,” May wrote. “Father’s testimony that FCM Ginanni told him to discontinue services and seemingly accelerated the visitation and home placement schedule for C.M.S.T., while denying similar escalation of visitation to Mother is just one of many instances that lead us to believe the chaotic and unprofessional handling of this case violated Mother’s and Father’s due process rights. The State concedes this violation of due process.”

The COA appended to its decision an order of July 9 that it also appended to another termination of parental rights reversal last week. The order formally admonishes DCS “for its failure to afford litigants through this state the due process they are owed,” citing multiple cases.

“We join in those sentiments, especially considering the multiple due process and ethical violations present in this case,” May concluded.•