Indiana Court Decisions – Dec. 30, 2020 – Jan. 13, 2021

Keywords Court opinions

7th CircuitCourt of Appeals

Jan. 5, 2021

Civil Plenary – Employment/Wage Discrimination

Cheryl Kellogg v. Ball State University, d/b/a Indiana Academy for Science, Mathematics and Humanities

20-1406

A Muncie teacher who sued her employer after being told that her starting salary didn’t need to be higher because her husband had a job has secured a reversal in her favor on her pay discrimination claims.

When Cheryl Kellogg was hired in 2006 by the Indiana Academy for Science, Mathematics and Humanities on the Ball State University campus, she was told by the academy’s executive co-director David Williams during negotiations that he wouldn’t increase her $32,000 starting salary “because then [she] would be making as much as his Ph.D instructors … .” Kellogg testified that he also “offhandedly told [her] that [she] didn’t need any more money, because he knew [her] husband worked at Ball State, so [they] would have a fine salary.”

In 2017, Kellogg complained that she received less pay than her similarly situated male colleagues and was informed that “[t]he issue [wa]s salary compression, which means those who [we]re hired after [Kellogg] began at a higher salary.” She was also told that her salary increased by 36.45% during her time at the academy while her colleagues’ salaries increased by less.

Kellogg, however, sued the academy for violating Title VII and the Equal Pay Act by engaging in sex-based pay discrimination, but the Indiana Southern District Court granted the academy’s motions for summary judgment. The district court concluded the academy had provided undisputed gender-neutral explanations, including salary compression and qualification differences.

But the 7th Circuit Court of Appeals disagreed, reversing in a Jan. 5 decision.

Boiling down its review of the district court’s ruling to one question, the 7th Circuit asked whether the academy’s nondiscriminatory explanations for Kellogg’s pay were in dispute.

“We hold that they are because the Academy blatantly discriminated against Kellogg by telling her that, because her husband worked, she did not need any more starting pay. Such clear discrimination calls the sincerity of the Academy’s rationales into question,” Judge Michael Kanne wrote for the unanimous 7th Circuit panel.

Finding that Kellogg brought forth evidence to “create a triable issue of fact with respect to her burden of demonstrating that [the Academy’s nondiscriminatory] reasons are pretextual,” the 7th Circuit pointed out that Kellogg’s testimony about Williams’ comment on her husband’s job created a dispute over whether the academy “honestly believed in the nondiscriminatory reasons” that it offered.

The panel rejected the academy’s argument that Williams’ statement was simply a “stray remark” with no “real link” to Kellogg’s pay, declining to categorize his statement as “watercooler talk.”

“It was a straightforward explanation by the Academy’s director, who had control over setting salaries, during salary negotiations that Kellogg did not need any more money ‘because’ her husband worked at the University. Few statements could more directly reveal the Academy’s motivations,” Kanne wrote.

Additionally, the 7th Circuit disagreed with the academy’s request that it skirt Williams’ statement because it occurred outside the statute of limitations period and therefore could not establish liability. On that point, the panel initially noted that under the paycheck accrual rule, as codified by the Lilly Ledbetter Fair Pay Act of 2009, Williams’ statement can “establish liability.”

“All of Kellogg’s pay from the Academy resulted, at least in part, from that decision because the Academy admittedly based Kellogg’s later pay on raises from her starting salary. … Thus, each of Kellogg’s paychecks gave rise to a new cause of action for pay discrimination. And like the plaintiff in (Groesch v. City of Springfield, 635 F.3d 1020, 1027 (7th Cir. 2011)), Kellogg can rely on Williams’s initial discriminatory statement, even though it occurred outside the limitations period, to seek damages from any paychecks that she received within the statute of limitations window,” Kanne wrote.

The 7th Circuit also found Kellogg could rely on Williams’ statement to show that the academy’s explanations were pretextual because “time-barred acts [are allowed] as support for a timely claim.”

Rejecting the academy’s final argument that the paycheck accrual rule does not apply because the Ledbetter Act did not amend the Equal Pay Act, the 7th Circuit countered that the rule does, in fact, apply to EPA claims.

“Williams’s alleged discriminatory statement casts doubt on the Academy’s nondiscriminatory explanations for Kellogg’s salary, and Kellogg can rely on the statement even though Williams uttered it outside the limitations window. The district court’s decision to set aside Williams’s statement thus requires remand,” Kanne concluded.

In a final note, the 7th Circuit held as incorrect the district court’s finding that Kellogg could rely on the treatment of just one comparator employee to prove her claims. It found that the notice pleading standard set forth in Federal Rule of Civil Procedure 8 does not require plaintiffs like Kellogg to identify all possible comparators in a complaint. Neither did she relinquish her ability to bring up other comparators later, it found.

Lastly, the 7th Circuit noted it was not concerned that the academy would suffer any unfair surprise from Kellogg’s reliance on other comparators.

It therefore reversed and remanded in the case of Cheryl Kellogg v. Ball State University, d/b/a Indiana Academy for Science, Mathematics and Humanities, 20-1406.

Civil Plenary – Mental Illness/Disability Benefits

Hortansia D. Lothridge v. Andrew M. Saul, Commissioner of Social Security

20-1269

A woman twice denied disability benefits despite evidence of serious mental disabilities causing limitations on her ability to work will get a third chance to make her case for benefits.

In the case of Hortansia D. Lothridge v. Andrew M. Saul, 20-1269, plaintiff Hortansia Lothridge applied for disability insurance benefits and supplemental security income in May 2013, claiming various disabilities including fibromyalgia, chronic obstructive pulmonary disorder, asthma, high blood pressure and multiple mental health conditions. Lothridge had previously held jobs and had earned a certified nursing assistant license, but hip and back pain led her to stop working in December 2009.

Before she stopped working, Lothridge had seen a psychiatrist who diagnosed her with mood disorders, attention deficit disorder and bipolar I disorder. Her treatment and prescriptions lapsed, however, because she was not consistently in the state.

Lothridge eventually settled in Indiana and began seeking mental health counseling in August 2013. Her application for disability benefits was pending at the same time, and an agency psychologist diagnosed her with mood disorder and post-traumatic stress disorder, finding that she had “moderate difficulties with social and occupational functioning.”

Meanwhile, Lothridge saw a family doctor and a rheumatologist, the latter of whom determined in April 2015 that she would be unable to work for at least the next year because her physical and mental ailments were worsening. Over the next year, Lothridge stopped complying with treatment, believing at one point that her medication would kill her.

Also in 2015, Lothridge testified before an administrative law judge that her medications dulled her pain but did not take it away, that her children did most of the housework and that she had to take frequent breaks whenever she supervised them. The ALJ determined in September 2015 that she was not disabled, but an Indiana Northern District Court judge remanded.

By 2016, Lothridge was struggling to get out of bed, complete personal hygiene tasks and clean her home. In 2017, a clinician assessed her as having “a moderate degree of self-care impairment, difficulty with decision-making, impaired social function, and challenges with concentration.” Also, Lothridge had a tendency to self-isolate and was struggling to care for her children.

At a second hearing before the same ALJ in September 2018, Lothridge testified about her lapses in treatment, saying she had trusted her in-home therapist but struggled to find another therapist when her original therapist left the clinic. She also testified that she struggled to attend in-person appointments because she forgot the times and could not find transportation. She was afraid to drive, she said, and she was in pain throughout the hearing.

The ALJ then directed a vocational expert to base his testimony on the assumption that a person with Lothridge’s age, education and work experience could “understand, remember, and carry-out simple instructions and tasks.” Based on those factors, the expert said Lothridge could work as a garment sorter, mail clerk or photocopy machine operator, though he added that someone who needed help leaving for breaks or who would tend to arrive late or leave early could not hold such jobs. That worker, the expert said, would need to be on task for 90% of a workday.

Following that hearing and despite finding that Lothridge had several severe mental impairments, the ALJ again determined in 2018 that she was not disabled. Though the ALJ found that Lothridge had “moderate limitations in understanding and applying information, interaction with others, and maintaining concentration, persistence and pace,” she also determined there were “plentiful positions” that Lothridge could perform.

A second Indiana Northern District judge upheld the ALJ’s second ruling, but the 7th Circuit Court of Appeals reversed on Jan. 5.

The ALJ’s assessment of Lothridge’s residual functioning capacity under 20 C.F.R. § 404.1520 was inconsistent with the finding of “moderate” limitations in concentration, persistence and pace, Judge David Hamilton wrote. He gave the example of the ALJ’s finding that Lothridge only “sometimes” finished a task and could get frustrated easily.

“It is not a court’s role to displace an ALJ’s judgment by making our own findings about the facts, but we cannot uphold an administrative determination that failed to explain the outcome adequately,” Hamilton wrote. “… To put it another way, an internally inconsistent opinion by an ALJ is likely to fail to build a logical bridge between the evidence and the result. … The ALJ’s findings about the jobs Lothridge could perform needed to account in a meaningful way for the earlier findings that recognized her difficulties with concentration, completing tasks, and managing stress.”

The ALJ also cherry-picked and overstated evidence to support her residual functional capacity finding, Hamilton continued, adding that the judge failed to address evidence of Lothridge’s worsening symptoms.

“An ALJ need not address every piece of evidence,” he wrote, “but she may not ignore entire swaths of it that point toward a finding of disability.”

Thus, the district court’s order upholding the denial of benefits was vacated, and Lothridge’s case was again remanded for further proceedings before the commissioner of social security.

__________

Jan. 6

Civil Plenary – Sex Offender Registration/Right to Travel

Brian Hope, et al. v. Commissioner of Indiana Department of Correction, et al.

19-2523

Six men required to register as sex offenders after moving to Indiana can have their names removed from the sex offender registry, the 7th Circuit Court of Appeals has held, finding that the state’s registration law discriminates between offenders who have consistently lived in Indiana and those who more recently moved into the state. A dissenting judge, however, disagreed with the majority’s holding that the registration law burdens the plaintiffs’ right to travel.

Judge Ilana Rovner authored the Jan. 6 opinion in Brian Hope, et al. v. Commissioner of Indiana Department of Correction, et al., 19-2523. Judge Diane Wood joined the majority opinion, while Judge Amy St. Eve dissented.

The case involves the required registration of six men — Brian Hope, Gary Snider, Adam Bash, Joseph Standish, Patrick Rice and Scott Rush — under the Indiana Sex Offender Registration Act. Each man committed their sex crimes 25 to 35 years ago, each was required to register as a sex offender in another state, and each relocated or returned to Indiana after serving their sentences.

SORA was enacted in 1994 and amended in 1996 to require registration by anyone convicted elsewhere of a state offense that was “substantially equivalent” to an Indiana offense requiring registration. The law was amended again in 2006, this time to apply to a “person who is required to register as a sex offender in any jurisdiction.”

In 2009, the Indiana Supreme Court handed down Wallace v. State, 905 N.E.2d 371 (Ind. 2009), holding that the requirements of SORA could not be imposed on anyone whose offenses predated the enactment of the statute. Thus, as long as a person whose offense predated SORA remained an Indiana resident, they were not required to register as a sex offender.

“This case is before us now, however, because, despite the Wallace decision, persons with pre-SORA convictions who relocate to Indiana from another state where registration was required or relocate from Indiana to another state requiring registration and then back again, must register in Indiana, even if Indiana would not have required them to register had they committed their offenses in Indiana and never left,” Rovner wrote.

Hope and Snider filed a complaint for declaratory and injunctive relief in the Indiana Southern District Court, and Judge Richard Young entered the injunction in April 2017. That case was consolidated with one brought by Rice, Bash and Rush.

In 2019, the district court held that “SORA violates Plaintiffs’ fundamental right to travel, Plaintiffs’ right to equal protection of the laws, and the Constitution’s prohibition against retroactive punishment.” The state appealed from that ruling, but the 7th Circuit affirmed.

In the majority’s analysis, Rovner pointed to what she called a “Gordian knot” in the case. In briefing, the state asserted that Snider was required to register in Indiana under both the 1996 “substantially equivalent” amendment to SORA and the 2006 “other jurisdiction” amendment.

However, “At the (Federal Rule of Civil Procedure) 30(b)(6) deposition the State maintained that Snider would not have to register under the other jurisdiction prong because he arrived in Indiana before that requirement was added. And at oral argument, the State asserted that Snider could not be required to register because of the substantial equivalency requirement alone because of the Supreme Court decision in Wallace,” Rovner wrote.

“We do not (know) what else to call this other than ‘a mess,’” she said.

In attempting to untangle the “knot,” the majority made two conclusions.

First, Wallace “prevents the State from requiring new (or returning) residents to Indiana to register under the substantial equivalency prong alone, if their crime occurred before the date that SORA would have required registration for the substantially equivalent crime in Indiana.” Second, Wallace “also prevents the State from requiring registration under the other jurisdiction prong alone if the new (or returning) resident relocated to Indiana before 2006, when the other jurisdiction requirement was added to SORA.”

“As we shall see, ultimately these distinctions about why an offender was required to register are not relevant to the outcome of this case,” Rovner wrote. “Instead, our outcome depends on the fact that two people who committed the same crime at the same time have different registration requirements depending on their history of residency in Indiana.

“Nevertheless, because the State has created much confusion with its bifurcation of the ‘statutory law’ and the ‘constitutional law,’ we will make clear that we are proceeding with our analysis of the case with the understanding that the State cannot apply the substantial equivalency registration requirement to any plaintiff who committed his offense before that offense became registrable in Indiana,” the judge continued. “As a matter of Indiana law, it may only require registration of pre-SORA offenders by those who were required to register in another jurisdiction.

“This in turn is what gives rise to the plaintiffs’ right-to-travel claim: having relocated from other states that required them to register, they are burdened with an obligation to register in Indiana that would not be imposed on a similarly-situated offender who has lived in Indiana continuously since committing his offense.”

Agreeing with the right-to-travel claim, the majority held that Indiana places “exclusive reliance” on another state’s decision to require sex offender registration, thus using travel as a “trigger” for registration in Indiana. That creates two classes of Hoosier citizens: those who lived in Indiana at the time of their offenses and remained there, and those who relocated to Indiana from a state requiring registration after the 2006 amendment.

“This sets up the very sort of multi-tiered state citizenship that the Supreme Court’s right-to-travel cases prohibit,” Rovner wrote. “… This discriminatory classification is a penalty in and of itself and can only survive if it satisfies strict scrutiny.”

Finding that the strict scrutiny burden was not met, Rovner said the court was “pointed to no evidence indicating, nor does the State suggest, that individuals who began to reside in Indiana after the other jurisdiction provision of SORA was enacted are more likely to re-offend than those who were already residents prior to that time.”

“… (H)owever small in number the plaintiffs may be, Indiana has assigned them to a class of citizenship that is inferior to that enjoyed by other, similarly situated, Indianans, and for the plaintiffs, it is their relocation from other states that has resulted in that second-class status,” Rovner concluded.

St. Eve, however, said she does not think the right to travel is implicated.

Her dissent first pointed to the 2016 Indiana Supreme Court decisions in Tyson v. State, State v. Zerbe and Ammons v. State, which she said hold that “the effect of maintaining an out-of-state registration in Indiana was not punitive, regardless of when or where the registrable crime had been committed.” Those rulings relied on the question of whether the “marginal effect” of SORA is punitive.

“Under (the majority’s) logic, offenders who relocated to Indiana prior to July 1, 2006, and who were not required to register in Indiana until 2006 would be exempt from a later registration requirement under Wallace. That interpretation misapprehends Wallace’s more recent progeny: Tyson, Zerbe, and Ammons,” St. Eve wrote.

“While those cases dealt with plaintiffs who moved to Indiana after it enacted SORA’s other-jurisdiction provision in 2006, the Indiana Supreme Court did not base its decisions on that factor. Rather, it held, across three distinct factual patterns, that SORA’s retroactive application does not violate the state’s Ex Post Facto Clause as long as the offender is ‘already required to register in another jurisdiction.’ … That condition is satisfied here.”

Further, as to the U.S. Constitution, “The Privileges or Immunities Clause of the Fourteenth Amendment simply does not prohibit a state from incidentally burdening travel to or from the state,” St. Eve continued. “It guarantees only ‘the right of the newly arrived citizen to the same privileges and immunities enjoyed by other citizens of the same State.’

“… Because both old and new Indiana residents are treated equally under SORA and Indiana’s Ex Post Facto Clause, I respectfully dissent from the majority’s holding that either law violates the right to travel.”

St. Eve would remand to the district court for a rational-basis review.

Indiana Court of Appeals

Dec. 31, 2020

Civil Plenary – Economic Development/Public Records

Tax Analysts, et al. v. Indiana Economic Development Corporation

20A-PL-1141

Indianapolis’ offer of taxpayer money and financial incentives in an unsuccessful attempt to lure a coveted second Amazon headquarters can remain secret, the Indiana Court of Appeals has ruled, rejecting an appeal by a tax trade publication that argued the offer must be disclosed as a public record.

Indianapolis was among some 200 cities and regions nationwide that submitted proposals competing to attract Amazon’s HQ2. The online retail giant ultimately decided to locate its massive $5 billion complex in northern Virginia.

The publisher Tax Analysts sought to gather comparative details of what cities had offered to lure Amazon, including from Indianapolis and the Indiana Economic Development Corporation. Many cities agreed, including Gary, which disclosed that the IEDC offered Amazon more than $1.5 billion in incentives to locate in the Lake County community, as well as the potential of $792 million from the city and another $2.75 billion in potential further incentives if approved by the General Assembly.

But Indianapolis and the IEDC refused to disclose their offers, leading Tax Analysts to sue, claiming the incentives were subject to disclosure under the Access to Public Records Act. The Marion Superior Court ruled against Tax Analysts, holding that the records were exempt from disclosure under APRA because they were created during negotiations and did not include terms of a final offer of public financial resources. The COA agreed, parsing the meaning of the word “final” from the Merriam-Webster Dictionary as “not to be altered or undone.”

“(R)ecords relating to negotiations are not disclosable under (APRA) unless they contain the terms of an offer that, if accepted, would commit public financial resources; that is, the offer must be final in the sense that it is not intended to be altered or undone in future negotiations,” Judge L. Mark Bailey wrote for the panel in Tax Analysts, et al. v. Indiana Economic Development Corporation, 20A-PL-1141.

The COA noted Indianapolis was a finalist invited to compete in a second round for HQ2, and the city proposed two sites rather than one. “Moreover, the language used in each site proposal also contained a lack of finality. For each site, the IEDC provided estimates of various costs, and it noted that the final costs would be dependent upon facts existing in the future, such as the size of the HQ2 building. The IEDC Response also discussed potential future agreements, projects, developments, and timelines that would be dependent upon which Indianapolis location Amazon chose for its site and/or what the HQ2 would look like. Such conditional language is evidence that the two site offers in the IEDC Response were to be altered — and one of them ‘undone’ — in the future if Amazon chose Indianapolis for its HQ2,” Bailey wrote.

“We hold that the IEDC’s responses to both Amazon’s initial (request for proposal) and its subsequent (request for information) and questionnaire were parts of on-going negotiations with Amazon that had not developed yet into ‘terms of the final offer of public financial resources.’ … As such, the IEDC had discretion to deny TA’s request for copies of those records.”

Domestic Relations – Child Custody/ Findings

M.G. v. S.K., et al.

20A-DR-712

The ruling of a Marion County judge that awarded a father joint physical custody lacked sufficient reasoning and has been reversed on appeal.

The Indiana Court of Appeals reversed the joint-custody order in M.G. v. S.K., et al., 20A-DR-712.

Judge Timothy Oakes in February granted father S.K. joint physical custody of the only child he had with mother M.G. After the couple divorced in 2015, they agreed to share legal custody, with mother having sole physical custody of their then-18-month-old.

Father had completed anger management classes for alleged criminal confinement of mother, and he progressed from supervised parenting time to unsupervised parenting time with his child.

Father then moved for joint custody in 2019 and mother cross-petitioned for sole legal custody and the appointment of a guardian ad litem. “The GAL testified that she had no environmental concerns with either parental home. She related the opinion of Child’s therapist that Child was bonded with both parents. The GAL identified no concerns with Child’s academic progress, socialization, or health. She described Child as ‘happy with her schedule’ and having no ‘wish to change.’”

Nevertheless, the court ordered a modification in which the child would alternate between parental homes on a weekly basis. That order was stayed pending appeal, and the COA reversed for lack of findings and, in some cases, findings that found no support in the record, such as mother allowing the child to become overweight.

“(T)he evidence did not show that Child was overweight,” Judge L. Mark Bailey wrote. “Child was in the 99th percentile for weight for her age, but she was also in the 99th percentile for height. The GAL denied that Child appeared overweight. Father conceded that he had not been medically advised to attempt to reduce Child’s weight; at most, he expressed his concern based on family history of diabetes. Even so, there was no evidence that Mother’s conduct contributed to Father’s concern over Child’s weight.

“… ‘[T]he purpose of Rule 52(A) is to provide the parties and the reviewing court with the theory upon which the trial judge decided the case in order that the right of review for error may be effectively preserved.’ Nunn Law Office v. Rosenthal, 905 N.E.2d 513, 517 (Ind. Ct. App. 2009),” Bailey wrote. “Here, the trial court made certain factual findings praising Father’s parental abilities and criticizing Mother’s inflexibility. However, the theory upon which modification was premised is not evident, given the lack of reference to a substantial change in any statutory factor or an explicit conclusion that modification is in Child’s best interests. Additionally, the trial court failed to enter special findings and conclusions thereon addressing Mother’s petition to modify joint legal custody of Child to Mother’s sole legal custody.

“The trial court did not enter an order in compliance with Indiana Trial Rule 52(A) adequate to permit meaningful appellate review,” the panel concluded in reversing.

__________

Jan. 12

Criminal – Double Jeopardy/Sentencing

Irving Madden v. State of Indiana

20A-CR-196

A man convicted in a violent kidnapping scheme successfully had two of his felony convictions overturned on double jeopardy grounds, though the Indiana Court of Appeals declined to find an abuse of discretion in the consecutive sentences he received.

In Irving Madden v. State of Indiana, 20A-CR-196, Quantavious Jones told his girlfriend A.C. in October 2018 that he was going to send her a package. When A.C. had not received the package the next day, Jones picked her up and located the UPS driver, who said the package had been delivered.

Jones then took A.C.’s phone and called Madden, who was either a friend or a relative. Jones informed Madden that A.C. had lost the package and said they were coming to Madden’s house.

A.C. then “realize[d] something’s up” and tried to get out of the car, but Jones grabbed her shirt and restrained her. She tried to stay in the car once they arrived at Madden’s home, but Madden pulled her from the car and took her to the basement, where she was handcuffed to a pipe.

A.C. was able to free herself and tried to grab a phone sitting in front of her, but Jones began “choking [her] to the ground.” She was then handcuffed to a chair, scalded and repeatedly brutalized to the point that she began to lose consciousness. Meanwhile, Jones used A.C.’s phone to ask people about the missing package.

The trio then returned upstairs, where A.C. was allowed to call her family and ask for $3,000 for her freedom. One of her cousins had added a detective to the call, but A.C. was unable to share her location with the detective because Jones hung up the phone.

The trio then got in the car, and Madden, who was driving, dropped A.C. off in an unfamiliar neighborhood, where a stranger called her cousin. When her cousin arrived, A.C. went to the hospital and underwent several surgeries and rehabilitative therapy. She has permanent scarring.

Later, at a joint trial for Madden and Jones, Madden was convicted of two counts of Level 3 felony aggravated battery, Level 5 felony kidnapping with bodily injury, and Level 2 felony counts of kidnapping for ransom and criminal confinement with intent to ransom. The Marion Superior Court sentenced him to an aggregate 40 years in the Department of Correction, including 10 years on each battery conviction to run consecutively, 20 years for each Level 2 felony conviction to run concurrently to each other but consecutively to the battery sentences, and four years for the Level 5 felony to run concurrently to all other sentences.

On appeal, Madden first challenged his conviction of Level 2 felony kidnapping for ransom. Though Madden himself did not make the ransom demand, the Court of Appeals upheld that conviction, determining that he “actively participated in A.C.’s kidnapping for ransom.”

However, the COA vacated Madden’s convictions of Level 5 felony kidnapping and Level 2 felony criminal confinement on double jeopardy grounds.

Madden was charged with two violations of Indiana Code § 35-41-3-2(a), which defines kidnapping as “knowingly or intentionally remov(ing) another person, by fraud, enticement, force, or threat of force, from one place to another … .” One of those violations resulted in the Level 5 felony charge, and the other was a Level 2 felony.

Under the newly established analysis in Powell v. State, 151 N.E.3d 256 (Ind. 2020) — which was applied in a COA ruling as to Jones — Judge Margret Robb wrote that “there is no question that only one removal occurred: Madden’s forceful removal of A.C. from Jones’ car into the basement.”

“‘The only things that distinguish the Level [5] conviction (injury) from the Level [2] conviction (ransom) are result and motive. These are not the units of prosecution for kidnapping,’” Robb wrote, quoting Jones’ case. “Therefore, only one can stand, which, in this case is the Level 2 felony. … We remand to the trial court with instructions to vacate Madden’s Level 5 felony kidnapping conviction and amend its judgment to remove the conviction and sentence on this count.”

Then, under the new analysis in Wadle v. State, 151 N.E.3d 227 (Ind. 2020), Madden and the state agreed that both his Level 2 kidnapping and criminal confinement convictions cannot stand, vacating the criminal confinement conviction.

“Here, the same facts proved Madden’s conviction for criminal confinement and kidnapping — that he forced A.C. from the car and into the basement where she was handcuffed. And because Madden acted with the intent to obtain ransom, both convictions were enhanced to Level 2 felonies. Madden’s actions were so compressed in time, place, singleness of purpose, and continuity of action that his convictions for both crimes violate double jeopardy,” Robb wrote.

His double jeopardy arguments as to his two convictions of aggravated battery, however, failed because his two acts of throwing hot water on A.C. were not continuous, thus not constituting a single transaction.

“In sum, Madden’s two aggravated battery convictions do not constitution double jeopardy and are therefore affirmed,” the judge wrote. “Madden’s Level 5 felony kidnapping and criminal confinement convictions do constitute double jeopardy in relation to his Level 2 felony kidnapping convictions. Therefore, his convictions for Level 5 felony kidnapping and criminal confinement must be vacated and his conviction for Level 2 felony kidnapping is affirmed.”

Finally, the COA upheld Madden’s sentence, rejecting his arguments that his consecutive sentences were an abuse of discretion and that his sentence was inappropriate.

__________

Jan. 13

Juvenile CHINS – Voluntary Relinquishment/Statutory Advisement

In re the Termination of the Parent Child Relationship of: K.E. (Minor Child), and A.C. (Mother) v. Indiana Department of Child Services

20A-JC-1348

A Henry County mother will get the opportunity to challenge the voluntary relinquishment of her parental rights after the Indiana Court of Appeals found that she was not given a proper advisement before signing a relinquishment form.

Mother A.C. gave birth to K.E. in February 2013. Almost five years later, the Indiana Department of Child Services removed K.E. from A.C.’s home and placed her in a relative’s care after receiving a report that the child was in an environment with drug use and domestic violence.

On Nov. 17, 2017, DCS filed a petition alleging K.E. was a child in need of services, an allegation that A.C. denied. K.E. was officially adjudicated as a CHINS in June 2018, and the following December, DCS moved to change the permanency plan from reunification to adoption.

At a January 2019 hearing on that motion, A.C., represented by counsel, signed a voluntary relinquishment of parental rights form and testified that she intended to voluntarily relinquish her rights to K.E. The child’s father’s rights were later terminated, and the adoption of K.E. by a maternal cousin was pending as of June 2020.

In July 2020, the Court of Appeals granted A.C. leave to file a belated notice of appeal. Citing to In re Adoption of O.R., 16 N.E.3d 965, 971 (Ind. 2014), the appellate court wrote in a footnote that “(w)e can think of few rights more extraordinarily compelling than a parent’s Fourteenth Amendment right to establish a home and raise her children. We therefore reject DCS’s request that we dismiss Mother’s appeal.”

The issue in A.C.’s appeal was the form she signed relinquishing her parental rights — specifically, the form’s lack of an advisement pursuant to Indiana Code § 31-35-1-12(9). Judge Melissa May likened the case to Matter of D.C., 149 N.E.3d 1222 (Ind. Ct. App. 2020), reh’g denied, where a voluntary relinquishment of parental rights was reversed due to a missing advisement under I.C. 31-35-1-12(9).

I.C. 31-35-1-12(9) provides that when a parent is considering voluntary relinquishment, they must be advised that “the parents’ consent cannot be based upon a promise regarding the child’s adoption or contact of any type with the child after the parents voluntarily relinquish their parental rights of the child after entry of an order under this chapter terminating the parent-child relationship.”

In urging the appellate court to affirm the relinquishment, DCS noted that A.C. testified that she was voluntarily relinquishing her rights, and she did so during a CHINS proceeding, rather than waiting for a termination petition. Also, the department argued the advisement would’ve been premature because “there was no pre-adoptive parent(s) with whom [Mother] could have made an agreement or from whom she could have received a promise.”

“These distinctions are of no consequence because, regardless of Mother’s participation in the hearing or the timing of her voluntary relinquishment, the plain language of Indiana Code section 31-35-1-6(a) requires that parents agreeing to voluntarily relinquish their parental rights must be ‘advised in accordance with section 12 of this chapter,’” Judge Melissa May wrote.

“DCS concedes Mother was not advised in accordance with Indiana Code section 31-35-1-12(9), and thus her voluntary relinquishment was invalid,” May continued. “Accordingly, the trial court erred in finding Mother had voluntarily relinquished her rights to Child, and we reverse and remand.”

On remand, the Henry Circuit Court must undertake additional fact-finding to determine whether A.C. received an advisement under I.C. 31-35-1-12(9).

The case is In re the Termination of the Parent-Child Relationship of: K.E. (Minor Child) and A.C. (Mother) v. Indiana Department of Child Services, 20A-JC-1348.•

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