Opinions June 21, 2019

Keywords Opinions

Indiana Court of Appeals 

In the Matter of the Termination of the Parent-Child Relationship of: A.B. (Minor Child), and C.B. (Mother) v. Indiana Department of Child Services
18A-JT-3110.
Juvenile termination of parental rights. Reverses the Tippecanoe Superior Court’s termination of C.B.’s parent-child relationship with her daughter, A.B. Finds there is insufficient evidence to prove that the conditions resulting in the placement of A.B. outside mother’s custody will not be remedied, that the continuation of the parent-child relationship poses a threat to A.B.’s well-being, and that the termination of the parent-child relationship is in A.B’s best interest. Remands for further proceedings. 

Sheri Montgomery v. Estate of Donald M. Montgomery, Steve Shively, the Executor, and The Living Trust of Donald M. Montgomery and Betty M. Montgomery, Steve Shively, Trustee
18A-ES-2191
Estate, supervised. Reverses and remands the Miami Superior Court’s approval of an accounting by Steve Shively as executor of the Estate of Donald M. Montgomery and trustee of The Living Trust of Donald M. Montgomery and Betty M. Montgomery. Finds the trial court erred in approving Shively’s accounting. Remands for further proceedings consistent with the opinion. 

In the Matter of the Name Change of M.E.B., M.E.B.
19A-MI-118
Miscellaneous. Reverses the ruling that M.B., a transgender woman, did not meet her burden under Indiana Administrative Rule 9 to waive publication and seal the record of her name and gender marker change action. Finds the evidence supports M.B.’s argument that, if she had to publish notice of her name change petition and maintain a publicly open case file, she would be at significant risk of substantial harm. Also finds it was wholly improper for the Orange Circuit Court to deny M.B.’s motion based on the belief that she could not be “outed” because of the way she presents in person. Remands with instructions for the case to remain sealed, and for further proceedings. 

In the Matter of the Name Change of K.H., K.H.
18A-MI-3077
Miscellaneous. Reverses the denial of K.H.’s motion to waive publication and seal the record of her name and gender marker change action. Finds the Hamilton Circuit Court erroneously ordered K.H. to publish notice of the Indiana Administrative Rule 9 hearing in the newspaper and notify the Indiana Attorney General. Also finds the record supports K.H.’s Administrative Rule 9 requests. Remands for the case to remain sealed and for further proceedings.

Jackie Pratt v. State of Indiana
18A-CR-3099
Criminal. Affirms Jackie Pratt’s six-year sentence for his conviction of Class C felony nonsupport of a dependent child, but reverses the order for him to pay $66,059.46 in restitution. Finds the St. Joseph Circuit Court erred in ordering Pratt to pay $66,059.46 in restitution for his child support arrearage based on insufficient evidence. Also finds Pratt’s three-year executed sentence is not inappropriate in light of the nature of the offense or his character. Remands for further proceedings. 

In Re the Adoption of: C.P., Minor Child J.P. v. M.W.
18A-AD-2947
Adoption. Affirms the denial of stepmother J.P.’s petition for adoption of C.P. Finds J.P. did not meet her burden to overcome the presumption that the Hendricks Superior Court’s decision is correct or that the evidence leads to but one conclusion and the trial court reached the opposite conclusion. 

Alan Lee Berryman v. State of Indiana
18A-XP-2433
Expungement petition. Affirms the Clark Circuit Court’s denial of Alan Lee Berryman’s petition to expunge the record of a case in which a jury found him not responsible by reason of insanity. Finds  the term “conviction” in the statute includes a NRRI verdict. Also finds an individual adjudicated NRRI may not have that finding expunged pursuant to Indiana Code section 35-38-9-1 because to do so would be “contrary to public policy, absurd, and unjust.” 

Deandre Rashawn Bass v. State of Indiana (mem. dec.)
18A-CR-3028
Criminal. Affirms Deandre Bass’ 14-year sentence for his conviction of Level 3 felony aggravated battery. Finds the Lake Superior Court did not abuse its discretion when sentencing Bass. Also finds Bass’ sentence is not inappropriate in light of the nature of the offense or the character of the offender. 

Victoria M. Tidwell v. State of Indiana (mem. dec.)
18A-CR-1185
Criminal. Affirms and reverses in part Victoria Tidwell’s convictions for Class A misdemeanor dog bit resulting in serious bodily injury, Class B misdemeanor harboring a non-immunized dog and Class C misdemeanor dog bite resulting in bodily injury. Finds the evidence was sufficient to support the dog bite convictions. Also finds the dog bite convictions and the harboring a non-immunized dog convictions violate Indiana’s prohibition against double jeopardy. Remands with instructions. 

M.A. v. Review Board of the Department of Workforce Development and Ascension Health (mem. dec.)
18A-EX-2571
Agency. Affirms the Indiana Department of Workforce Development Unemployment Insurance Review Board’s affirmation of an administrative law judge’s denial of M.A.’s request for unemployment benefits. Finds M.A. has not met her burden on appeal to demonstrate that the review board erred because she does not make a cogent argument and does not cite to any citation to the record on appeal or to relevant case law.

Justin Cherry v. State of Indiana (mem. dec.)
18A-CR-2120
Criminal. Affirms and reverses in part Justin Cherry’s convictions of Level 2 felony burglary, Level 2 felony conspiracy to commit burglary, Level 1 felony burglary, Level 3 felony conspiracy to commit armed robbery, Level 3 felony criminal confinement, Level 6 felony theft, Level 6 felony auto theft and two counts of Level 3 felony armed robbery. Finds the evidence is sufficient. Also finds Cherry was subjected to double jeopardy and, thus, vacates his convictions of Level 2 felony burglary, Level 3 felony conspiracy to commit armed robbery, Level 3 felony criminal confinement, Level 6 felony theft and Level 6 felony auto theft. Remands for resentencing. 

In the Matter of the Termination of the Parent-Child Relationship of: T.W. and Z.C., Minor Children, J.H., Mother v. The Indiana Department of Child Services (mem. dec.)
18A-JT-3046
Juvenile termination of parental rights. Affirms the involuntary termination of J.H.’s parental rights to her children T.W. and Z.C. Finds the Wabash Circuit Court’s judgment terminating the parental rights of mother is supported by clear and convincing evidence.

Kenneth Lamar Scott v. State of Indiana (mem. dec.)
19A-CR-29
Criminal. Affirms the Hamilton Circuit Court’s revocation of Kenneth Scott’s probation and order that he serve 580 days of his previously-suspended sentence. Finds Scott failed to prove that the trial court denied him due process by failing to ascertain whether he had the opportunity to consult with counsel prior to the evidentiary hearing.

Justin Hoskins v. State of Indiana (mem. dec.)
19A-CR-7
Criminal. Affirms the Martin Circuit Court’s order revoking Justin Hoskins’ probation. Finds no error in the trial court’s decision that he serve a portion of his previously suspended sentence in jail and consecutive to another sentence.

John Chambers v. State of Indiana (mem. dec.)
18A-CR-2651
Criminal. Affirms the Greene Circuit Court’s order that John Chambers serve 500 days in the Department of Correction following revocation of his probation. Finds the trial court did not abuse its discretion in issuing its order. 

Darius Montel Bushrod v. State of Indiana (mem. dec.)
18A-CR-2769
Criminal. Affirms Darius Bushrod’s felony murder conviction, the jury’s determination that he was eligible for a firearm sentencing enhancement and his 75-year sentence. Finds his sentence is not inappropriate and that the trial court did not abused its discretion. 

In the Matter of the Termination of the Parent Child Relationship of A.B. (Child) and S.B. (Mother); S.B. (Mother) v. Indiana Department of Child Services, and Child Advocates, Inc. (mem. dec.)
19A-JT-58
Juvenile termination of parental rights. Affirms the termination of S.B.’s parental rights to her child, A.B. Finds the Department of Child Services provided sufficient evidence to support the Marion Superior Court’s unchallenged findings, which supported its conclusions that the circumstances under which Child was removed from mother’s care would not be remedied; termination was in Child’s best interests; and there existed a satisfactory plan for Child’s care following termination.

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