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Justices take 2 cases, deny 18, split over 2

December 19, 2018

Indiana Supreme Court Justices granted transfer in two cases last week concerning a father convicted of killing his infant daughter with a pillow and a piecemeal child in need of services adjudication. 

Justices accepted the case of CHINS: V.B. v. Indiana Department of Child Services, 18A-JC-555. The Indiana Court of Appeals affirmed the adjudication of V.B.’s five minor children as children in need of services when it found DCS presented sufficient evidence to prove the children experienced inconsistent and ineffective homeschooling, uncleanliness in the home and were at the mercy of their parent’s financial struggles. However, that ruling followed a previous and similar CHINS allegation filed against V.B. by DCS that was ultimately denied by the trial court for lack of evidence.  

On appeal, V.B. argued that her due process rights “were violated because DCS was allowed to file a second CHINS petition based on substantially similar allegations that were found insufficient the first time.” The appellate court lashed DCS concerning its litigation in the case, but found V.B. had waived her due process and res judicata arguments.

Justices also granted transfer in Jeffrey Fairbanks v. State of Indiana, 18S-CR-604. Jeffrey Fairbanks was convicted of murder for causing the death of his infant daughter when he placed a pillow over her face and then went back to sleep. When he woke up hours later, she was dead.

Fairbanks appealed, arguing in part the evidence that he had previously placed a pillow over Janna’s face was inadmissible pursuant to Evidence Rule 404(b). Specifically, he noted the evidence of a crime, wrong, or other act was admissible to prove lack of accident only if the defendant first claims accident, which he argued he never did.

The high court denied transfer to 18 other cases last week but split on the denial of two of those cases.

In D.H., et al. v. Mary Whipple, et al., 48A05-1706-CT-1345, Mary Whipple faces a negligence claim filed by her daughter and her granddaughter after the Indiana Court of Appeals found issues of fact as to whether the Whipple negligently allowed her grandchild to be molested by her husband, who she knew had a previous child molesting conviction. Chief Justice Loretta Rush and Justice Steven David voted to grant transfer, stating that they would clarify that both the negligent-supervision and premises-liability claims would be before the trial court on remand.

Justice similarly split concerning Jarvis Latwon McNeal v. State of Indiana, 18A-CR-1298. Jarvis McNeal appealed his three-year sentence for carrying a handgun without a license, arguing the trial court abused its discretion because the sentencing order was ambiguous and inadequate. Rush and Justice Geoffrey Slaughter voted to grant transfer and would have remanded the case to the trial court to resolve the inconsistency in the oral sentencing statement and written sentencing order.

A list of transfer decisions for the week ending in Dec.14 can be found here.

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