Indiana Court decisions – Feb. 13-26, 2020

7th CircuitCourt of Appeals

Feb. 14

Civil Tort — Wrongful Termination/Family and Medical Leave Act

Brandi Lutes v. United Trailers, Inc.

19-1579

A trailer factory worker’s lawsuit against the employer who fired him after he sustained a broken rib was partially reinstated by the 7th Circuit Court of Appeals, which found there may be evidence the company interfered with his rights under the Family and Medical Leave Act.

Buddy Phillips, who has since died, was fired in 2015 from his job of 13 years at United Trailers after he suffered a broken rib while playing with his grandchildren. He called the company over the following two weeks to report he would miss work, but at some point he stopped calling and was fired. According to the record, the company never informed him of his right to unpaid leave under the Family and Medical Leave Act.

Phillips sued United, alleging his rights under the FMLA were violated and asserting a claim of retaliation, among others. The Northern Indiana District Court granted summary judgment in favor of United.

The 7th Circuit partially reversed in a nonprecedential order Jan. 27 that was published as an opinion Feb. 14. The appellate panel reinstated Phillips’ claim of interference with his rights under the FMLA and remanded for proceedings. The panel affirmed judgment for United on Phillips’ retaliation claim.

“Regarding Phillips’s interference claim, the district court acknowledged triable questions existed over whether Phillips’s rib injury was a serious medical condition. The court noted the record was thin on this point: Phillips was diagnosed with a broken rib and told to perform activity as tolerated; his primary care physician told him to not return to work (for several weeks); and his wife and daughter testified Phillips’s ability to walk and lift his arms were impaired,” the panel wrote in a per curiam decision.

“While the proof was sparse, the court ruled a reasonable jury could conclude Phillips’s rib injury was a qualifying serious medical condition. Next, the district court determined that questions of fact existed as to whether Phillips provided adequate notice of his injury to United. The court noted that the evidence showed Phillips had called United and communicated his rib injury. While the parties disputed the precise contents of the conversation, because Phillips had done more than merely ask for time off — he provided a reason for his absence — it was a material question of fact for the jury to decide whether Phillips had provided adequate notice.”

The case is Brandi Lutes, Personal Representative of the Estate of Buddy F. Phillips v. United Trailers, Inc., and United Trailers Exporting Inc., 19-1579.

Indiana Supreme Court

Feb. 20

Child in Need of Services — Deadlines/First Impression

In the Matter of M.S. (Minor Child in Need of Services); A.C. (Mother) v. Indiana Department of Child Services

19S-JC-505

In a case of first impression, the Indiana Supreme Court found a trial rule trumped the CHINS statutory deadline after a mother was first granted a continuance, then moved to have the case dismissed because the court took longer than 120 days to complete the factfinding.

The mother, A.C., had her daughter, M.S., removed from her care in November 2017 over allegations of neglect following the death of another child. As part of the factfinding, the mother requested documents from the Danville Police Department related to the investigation into the death of her other child.

However, when the cops moved to quash the subpoena duces tecum, the mother requested a continuance to resolve the discovery dispute. The Hendricks Superior Court continued the hearing and ordered the limited discovery of documents after all the parties agreed to waive the statutory 120-day deadline for the factfinding to be concluded.

At a subsequent factfinding hearing held March 16, 2018, the mother submitted more than 2,000 video recordings into evidence. She was granted an additional seven days to identify the most relevant videos, but on April 10 she asked for an extension of time to continue reviewing the recordings.

The factfinding concluded April 17, 2018, but the final order adjudicating M.S. as a child in need of services was not issued until Oct. 8, 2018. At a dispositional hearing Oct. 31, 2018, the mother moved for dismissal, citing recent caselaw from the Indiana Court of Appeals about formal deadlines for CHINS actions.

When the trial court denied her motion, the mother appealed. The Court of Appeals reversed and remanded the matter with instructions to dismiss the case without prejudice.

Then the Indiana Department of Child Services petitioned to transfer the case of In the Matter of M.S. (Minor Child in Need of Services; A.C. (Mother) v. Indiana Department of Child Services, 19S-JC-505. The Indiana Supreme Court affirmed the judgment of the trial court.

In reviewing the case, the Supreme Court pointed out that Indiana Code § 31-34-11-1, which provides the 120-day deadline for factfinding in CHINS cases, conflicts with Rule 53.5 of the Indiana Rules of Trial Procedure, which gives the court discretion to postpone or continue a trial for “good cause.”

Citing precedent from Garner v. Kempf, 93 N.E. 3d 1091, 1099 (Ind. 2018), State v. Bridenhager, 257 Ind. 699, 704, 279 N.E.2d 794-796 (1972) and Bowyer v. Ind. Dept. of Nat. Res., 798 N.E. 2d 912, 917 (Ind. 2003), the court held that when a statute is at odds with a court rule, the rule governs.

“Here, the trial court did not abuse its discretion when it granted Mother’s request for a continuance,” Justice Steven David wrote for the court. “Mother showed good cause when requesting additional time to resolve her discovery dispute with the Danville Police Department and sift through over 4,000 minutes of video evidence.

“Because Mother showed good cause, the trial court did not err in denying Mother’s motion to dismiss the action after the 120-day period expired,” David continued. “While we are mindful of the importance of the statutory deadline imposed by the General Assembly, the facts of this case justify the trial court’s action in continuing the case beyond the prescribed timeframe.”

Criminal — Drugs/Motion to Suppress GPS Tracking Device

Derek Heuring v. State of Indiana

19S-CR-528

Though the ruling may result in a drug crime going unpunished, the Indiana Supreme Court has reversed the denial of a motion to suppress evidence, finding a lack of probable cause to support the underlying search warrants.

The case of Derek Heuring v. State of Indiana, 19S-CR-528, began in the summer of 2018, when the Warrick County Sheriff’s Department came to believe Derek Heuring was dealing meth. Officer Matt Young obtained a warrant to place a GPS tracker on Heuring’s Ford Expedition, and the device was attached July 13.

However, one week later, the tracker stopped providing officers with new location information. After 10 days without a location reading, a technician informed officers the device would need a reset. But when Young went to retrieve the tracker, it was gone.

The officers thus believed the tracker had been stolen and was either in Heuring’s house or his father’s barn, where the vehicle had been seen. A magistrate judge issued theft warrants for both locations, which led to the discovery of drugs, paraphernalia and a handgun. The GPS tracker was also found.

Heuring was arrested and charged on multiple counts, but he moved to suppress the seized evidence on the grounds that the search warrants violated his rights under the Fourth Amendment and Article 1, section 11 of the Indiana Constitution. The Warrick Superior Court denied that motion, and the Indiana Court of Appeals affirmed on interlocutory appeal.

But after granting transfer and hearing arguments, the Indiana Supreme Court reversed the denial of the motion to suppress.

“The initial search warrants were invalid because the affidavits did not supply probable cause that the GPS device was stolen,” Chief Justice Loretta Rush wrote for the court. “And because reliance on the invalid warrants was objectively unreasonable, the good-faith exception to the exclusionary rule does not apply. Thus, all direct and derivative evidence obtained as a result of the invalid warrants must be suppressed.”

Rush said there were two ways in which the warrant affidavits failed to establish probable cause. First, they lacked information that control over the tracker was “knowingly unauthorized.”

“There is no evidence of who might have removed it,” she wrote. “And there is nothing about markings or other identifying features on the device from which someone could determine either what it was or whose it was. In other words, what the affidavits show, at most, is that Heuring may have been the one who removed the device, knowing it was not his — not that he knew it belonged to law enforcement.”

Second, Rush continued, the affidavits lacked information showing an intent to deprive the sheriff’s department of the tracker’s value or use.

“Rather, they merely describe a ten-day period during which the officers lost track of the GPS device,” she wrote. “And thus, the affidavits support nothing more than speculation — a hunch that someone removed the device with the conscious objective to deprive the sheriff’s department of its value or use.

“… True, removing an unknown device from a car may incidentally deprive the device’s owner of its value of use,” the chief continued. “But without any evidence of the requisite ‘intent,’ there is no crime.”

Further, the good-faith exception to the exclusionary rule does not apply in this case, the court held. The justices supported their ruling with Figert v. State, 686 N.E.2d 827, 832-33 (Ind. 1997).

Specifically, Rush said the affidavits were based on noncriminal behavior, a hunch and a conclusory statement. “Thus, a reasonably well-trained officer, in reviewing these affidavits, would have known that they failed to establish probable cause and, without more, would not have applied for the warrants.”

“In reaching this conclusion, we do not question Officer (Jarret) Busing’s subjective good faith. But that is not the test,” Rush concluded. “… We are also aware that exclusion of the evidence here may result in criminal behavior going unpunished. Yet, ‘there is nothing new in the realization that the Constitution sometimes insulates the criminality of a few in order to protect the privacy of us all.’ Arizona v. Hicks, 480 U.S. 321, 329 (1987).”

The case was remanded for proceedings.

IndianaCourt of Appeals

Feb. 13

Criminal — Drugs/Motion to Suppress, Reasonable Belief

William Michael Bean II v. State of Indiana

19A-CR-00225

The majority of a divided Indiana Court of Appeals panel has reversed the admission of drug evidence obtained from a pat-down search after a traffic stop, finding officers lacked a reasonable belief that the driver was armed and dangerous.

When law enforcement officers pulled over William Bean II for a speeding infraction, they conducted a pat-down search with his consent because they knew from previous interactions with Bean that he typically carried a weapon. No weapon was found during the search, however, and officers then conducted a search of Bean’s vehicle. There, an officer detected what he believed to be marijuana “shake,” or pieces and seeds, on the passenger seat and floorboard of Bean’s vehicle.

Without using the K-9 present to sniff the car for the presence of drugs, the officers conducted a second pat-down of Bean without his consent, after watching him act nervous. The officers asked Bean to shake out his pants legs, but Bean jumped up and down instead, and a bag containing an assortment of narcotic pills fell out of his pants.

Bean was ultimately charged and convicted of Level 3 felony dealing in a Schedule II controlled substance and Level 4 felony dealing in a Schedule IV controlled substance. Bean filed a motion to suppress the evidence obtained during the traffic stop and subsequent searches, but was denied. A renewed objection to the search at his bench trial was overruled by Hancock Circuit Court and Bean was ultimately sentenced to serve an aggregate nine years with five years executed in the Indiana Department of Correction and four years suspended to probation.

A majority of the Indiana Court of Appeals reversed, however, upon finding that the officers lacked a reasonable belief that Bean was armed and dangerous, and that they should not have continued searching him.

“The dissent would hold that the discovery of marijuana shake in the vehicle justified the subsequent searches of Bean’s person as searches incident to arrest,” Judge Melissa May wrote for the majority, finding as distinguishable the cases cited by dissenting Judge John Baker in Vasquez v. State, 741 N.E.2d 1214, 1216 (Ind. 2001), Yoakum v. State, 95 N.E.3d 169, 175 (Ind. Ct. App. 2018, and Edwards v. State, 832 N.E.2d 1072, 1080 (Ind. Ct. App. 2005).

“In each of these cases, unlike in the instant case, there was evidence beyond the officer’s bare assertion that a substance was a prohibited substance. We accordingly hold the officers did not have probable cause to arrest Bean for marijuana possession after the search of his vehicle and the search incident to arrest exception does not apply in this circumstance,” the majority wrote.

The majority concluded that evidence obtained during the second search should not have been admitted at trial, holding that Bean’s Fourth Amendment right against unreasonable search and seizure was violated by the second pat-down search and by officers’ request that he remove his shoes and their order that he shake out his pants. The majority therefore reversed and remanded in William Michael Bean, II v. State of Indiana, 19A-CR-00225. In a dissenting opinion, Baker wrote he would “instead find that the series of non-consensual searches that the majority finds unconstitutional to fall squarely under the search incident to arrest exception to the Fourth Amendment warrant requirement.”

“The discovery of the marijuana seeds, the possession of which is a crime, on its own is enough to establish probable cause to search Bean,” Baker opined. “… Had no marijuana been discovered prior to the series of non-consensual searches of Bean, I would readily agree that the non-consensual searches were unconstitutional and that reversal is warranted.”

Feb. 19

Civil Collection — Negligence/Diminished Value of Crashed Vehicle

Shield Global Partners-G1, LLC v. Lindsay Forster

19A-CC-1100

A woman whose vehicle rear-ended a pickup truck in a Bloomington wreck is liable for the truck’s diminished value after it was repaired, the Indiana Court of Appeals ruled in a reversal.

Lindsay Forster admitted she was at fault in the June 2017 crash in which she rear-ended a Chevy Silverado pickup driven by Lance Ingersoll, who leased the truck from Hubler Chevrolet. Afterward, GM Financial assigned to Shield Global Partners-G1 LLC any claims for the truck’s diminished market value as a result of the crash.

Before the wreck, the truck had a market value of $36,550. After repairs costing more than $6,800, appraisers involved in the litigation claimed the truck had a diminished market value of between about $4,000 to $7,000. Shield sued to recover diminished market value damages from Forster, but the Monroe Circuit Court ruled in her favor, holding among other things that “Indiana law does not recognize per se ‘stigma of defect’ damages to personal property which is not permanently damaged.”

“We believe this misreads (Wiese-GMC, Inc. v. Wells, 626 N.E.2d 595, 599 (Ind. Ct. App. 1993)),” Judge Paul Mathias wrote for the panel in Shield Global Partners-G1, LLC v. Lindsay Forster, 19A-CC-1100. The panel read Wells to mean that even if property is restored to its previous condition, damages still may be recovered “if there is a resulting loss of fair market value … .”

“Our reading of Wells comports with the economic reality that property that has been damaged and repaired often has a lesser fair market value than property that was never damaged in the first place. This is especially true in the case of automobiles, where numerous online services, including Carfax, allow anyone to easily check to see if an automobile has been involved in an accident,” Mathias wrote. “Automobiles that have been involved in accidents, even if they have been successfully and fully repaired, usually have a diminished value. Indeed, all other things being equal, few if any would prefer a car that has been in an accident, even if fully repaired, to one that has never been in an accident, unless the repaired car was available at a lower price.”

Further, the panel found in this case, Monroe Circuit Judge Holly Harvey clearly erred in finding that one of the appraisers who presented evidence had not reviewed photos of the vehicle, and she ignored evidence of diminished value in the trial court’s findings of fact.

“Even if the trial court was not persuaded by (Shield appraiser Stuart) Raskin’s testimony regarding the diminished value of the Truck, its conclusion that there was no evidence regarding the diminished value of the Truck is contrary to its own finding that Shield’s in-house appraisal concluded that the Truck had a diminished value of $4,020.50. We therefore conclude that the trial court’s factual findings regarding Raskin’s appraisal are not supported by the evidence. And the trial court’s conclusion that Shield presented no evidence to support its claim of diminished value is unsupported by the trial court’s factual findings.

“… The trial court erred by concluding that Shield could not recover damages for diminished value because the Truck had been successfully repaired. It then compounded this error by ignoring the uncontroverted evidence that the Truck had a diminished value as a result of being involved in an accident and being repaired. We therefore reverse the judgment of the trial court and remand for proceedings consistent with this opinion,” the panel concluded.

Expungement — Burglary Conspiracy/Wrongful Denial of Petition

Brian Allen v. State of Indiana

19A-XP-01013

A man’s petition for expungement of his criminal record has been reinstated after the Indiana Court of Appeals ruled that a trial court erred in dismissing it.

When Brian Allen was 19 years old, he and three other friends conspired to burglarize the home of a couple in West Harrison in southeast Indiana. During the 2002 crime, Allen and another man waited outside the home as “lookouts,” while the two other men entered the house. The men who entered the house hit homeowner Larry Pohlgeers on the head repeatedly with a lead pipe and also hit Judith Pohlgeers.

After various charges were dismissed as part of a plea agreement, Allen ultimately pleaded guilty to Class B felony conspiracy to commit burglary in 2003 and was sentenced to 16 years in prison with eight years suspended. His sentence was later modified, and after serving nearly three years in prison, Allen was placed on probation. He successfully completed probation and was eventually released from it in 2015.

However, when Allen filed an expungement petition in 2018 pursuant to Indiana Code Section 35-38-9-4, the Dearborn Superior Court denied his request, stating that based on the judge’s review of the case file, “it was bad. And I think it was real bad.”

Upon finding Allen to have met the qualifications for expungement listed in subsections (c) and (e) of the statute, the Indiana Court of Appeals considered the parties’ disputed question of whether Allen is ineligible for expungement under subsection (b)(3). That subsection excludes persons “convicted of a felony that resulted in serious bodily injury to another person.”

On appeal, both the state and the trial court asserted Allen is ineligible because the facts surrounding the incident that resulted in his conviction included serious bodily injury to the victims. However, Allen and the Indiana University Robert H. McKinney School of Law Civil Practice Clinic, serving as amicus curiae, argued that Allen is eligible because no serious bodily injury was included in his crime.

“Here, the charges against Allen that involved bodily injury were all dismissed under the plea agreement. Allen was only convicted of conspiracy to commit burglary under subsection (1)(B) of Indiana Code Section 35-43-2-1, i.e., breaking and entering the dwelling of another. He was not convicted under subsection (2) of the burglary statute, i.e., breaking and entering the building or structure of another that results in bodily injury or serious bodily injury,” Judge L. Mark Bailey wrote for the appellate court.

“Because Allen was not ‘convicted of a felony that resulted in serious bodily injury to another person,’ he cannot be excluded from eligibility for expungement on that basis. And since that was the only apparent basis for the trial court’s denial of Allen’s request for expungement, the trial court was in error,” it concluded.

In a footnote, the appellate panel noted that the trial court order denying Allen’s expungement did not state its reasoning for doing so. The opinion also noted that victim Larry Pohlgeers, who has since died, had previously told the court at Allen’s sentence modification hearing that he believed Allen deserved a break and had “learned his lesson.”

“However, from the remarks the trial court made at the hearing, it appears the expungement was denied due to the ‘bad’ facts that the Pohlgeers were injured at the time of the crime,” the footnote says.

The appellate court therefore reversed the denial of Allen’s expungement request in Brian Allen v. State of Indiana, 19A-XP-01013.

Feb. 21

Criminal — Murder/Reversal, Juror Misconduct

Clinton Loehrlein v. State of Indiana

19A-CR-737

A lawyer who lied about her criminal history on a jury questionnaire in a murder case has divided an Indiana Court of Appeals panel, which ultimately vacated the murderer’s case for a retrial.

Clinton Loehrlein was sentenced to 150 years in prison after a Vanderburgh County jury found him guilty of murder in the January 2017 slaying of his wife, Sherry Loehrlein, two counts of Level 1 attempted murder against his daughters, two counts of Level 3 felony aggravated battery and Class A misdemeanor resisting law enforcement.

Following the attack, Loehrlein said he “wanted to kill his family so that they would go to heaven, then kill himself so he could join them.” Loehrlein had filed a notice of an insanity defense.

After the jury trial but before sentencing, Loehrlein’s counsel received information that the jury forewoman, L.W., a licensed attorney familiar with the jury process, had provided a false answer under oath on the jury questionnaire regarding her criminal history. The question asked the potential jurors, “Have you, any of your immediate family members, or a close friend been charged with or convicted of a crime? If yes, who, when, what & where.” L.W. responded “not applicable,” even though she was charged in 2012 with domestic battery against her husband.

In September 2018, Loehrlein filed a verified motion to set aside the jury’s verdict and for mistrial based on jury misconduct stemming from the lawyer’s untruthful answers. During her deposition, L.W. initially insisted that she had not been criminally charged and that the question was therefore not applicable, claiming she had “never been charged, never been read rights. I’ve never been convicted.”

When asked a second time if she had been charged with a crime, L.W. answered, “I mean, there was that little case that was false anyway, got dismissed, so it didn’t apply because it was dismissed.”

L.W. ultimately admitted she had been arrested but claimed she was the victim of repeated acts of domestic violence by her ex-husband. When asked if, based on her charging information, she had been charged with domestic battery L.W. finally stated, “I guess.” She then testified that “she was embarrassed by the charges and was worried about her reputation in the local legal community.”

The attorney also wrote “N/A,” to a question which asked if she, any immediate family members, or a close friend had been a witness or victim in a criminal matter, despite stating that she had been the victim of repeated domestic abuse.

When the Vanderburgh Superior Court denied Loehrlein’s post-verdict motion for a new trial, he appealed, arguing the trial court erred by denying the motion based on juror misconduct. Loehrlein asserted in Clinton Loehrlein v. State of Indiana,19A-CR-737, that had he known of the charge against L.W. and her prior experiences of being a victim of domestic violence, he would have moved to have her dismissed from the jury.

The case split an Indiana Court of Appeals panel, with the majority finding it had “no hesitation in concluding that L.W.’s incorrect, untruthful response to Question 15 amounted to gross misconduct.”

Citing State v. Dye, 784 N.E.2d 469, 472 (Ind. 2003), Judge Paul Mathias, joined by Judge James Kirsch, wrote that “… although L.W.’s conduct does not reach the depths of (Juror Jackie) Gunn’s dishonesty, she would have been aware that she had been charged with a crime, even though that charge was later dismissed, and that her answer of ‘N/A’ was at best incomplete and misleading, and at worst intentionally dishonest.

“L.W.’s answers to the juror questionnaire and her dissembling during her post-trial deposition are especially egregious because she was and is an attorney licensed to practice in this state, with almost twenty years of experience at the time of trial. To the extent that the trial court concluded that L.W.’s behavior did not amount to gross juror misconduct, its decision was clearly against the logic and effect of the facts and circumstances before the court,” the majority continued.

Additionally, the majority found L.W.’s untruthful answers deprived Loehrlein of the ability to delve into the attorney’s prior experience with domestic violence. Likewise, the majority found the trial court abused its discretion by denying the motion for a new trial, but did not err by refusing Loehrlein’s tendered instruction regarding his insanity defense.

The appellate court therefore reversed Loehrlein’s convictions and remanded for a new trial.

However, Judge L. Mark Bailey, in a separate dissent, was unpersuaded that the trial court abused its discretion by denying Loehrlein’s motion to set aside the verdict.

“(L).W., a practicing attorney, stated at her deposition that the contested issue for the jury was whether Loehrlein had established his insanity defense. (L).W. denied that her domestic violence history affected the insanity determination. Indeed, two appointed mental health experts testified that Loehrlein was sane and his own expert witness described Loehrlein’s thought processes but stopped short of opining that he was insane. Because Loehrlein admitted to the attacks and the jury heard from unified experts, there is no discernible harm from his loss of the opportunity to strike (L).W. as a juror,” Bailey wrote in dissent.

Feb. 24

Civil Tort — Deliberate Indifference/Inmate Death

Sue Williams, Linda Wood, and Claude-Wood, as the Co-Personal Representatives of the Estate of Rachel A. Wood, Deceased v. Indiana Department of Correction, Corizon, Inc., et al.

19A-CT-1832

The estate of an inmate who died in the Indiana Department of Correction from complications arising from lupus and a blood clotting disorder had its case reinstated against the DOC and its medical services contractor.

At the time of Rachel Wood’s death in 2012, medical service provider Corizon Health was under contract with the DOC to provide medical services at the various facilities where Wood was housed. Its contract required that Corizon provide medically appropriate care to inmates, maintain records for contract monitoring by the DOC, and comply with the DOC’s written health care services directives. Those directives, in turn, required Corizon to establish and maintain formal written plans for the treatment of inmates with serious health problems.

While Wood was serving time at the Rockville Correctional Facility, a Corizon doctor allowed the hydroxychloroquine prescription for Wood’s lupus to expire after she was “noncompliant” and had not taken the medication in more than a month. The doctor afterward did not counsel Wood about the importance of being compliant with that prescription and did not consult with a specialist or otherwise establish a long-term treatment plan for her lupus.

Electronic medical records created by the Corizon doctor and a nurse practitioner also failed to show any consistent provider response to Wood’s abnormal blood clotting tests during her time at the Rockville facility, leaving it unclear of what dosages of warfarin, if any, Wood actually received. The same thing happened while Wood was housed at the Madison Correctional Facility.

Corizon medical employees at the Madison facility failed to restart Wood’s lupus prescription when she showed increased inflammation, instead prescribing her steroids over the next several months. During the months that followed, Wood’s health began to deteriorate, leaving her weak and unable to eat or stand on her own, requiring her cellmates to help her use the bathroom, bathe and even write. Wood’s skin was covered in rashes and she experienced bleeding from her ears, nose and gums, but other inmates noted that “no one wanted to listen” when Wood attempted to tell medical staff of her condition.

Wood was eventually transferred to the Indianapolis Indiana Women’s Prison because it had an infirmary, where she spent four days before being transported by ambulance to Terre Haute Regional Hospital for hypoxia. Three weeks later, Wood was discharged and transported by ambulance back to the prison, only to be transferred by Corizon to Kindred Hospital. En route back to Indianapolis, Wood began coughing up blood in the ambulance and died.

Wood’s estate later sued the DOC, Corizon and Corizon’s medical employees, asserting that the Corizon medical employees were deliberately indifferent to Wood’s “serious medical needs, which constituted cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution.” It also asserted that the DOC failed “to ensure that . . . Corizon carried out its contractual duty to provide reasonable medical care” to Wood.

The Marion Superior Court ultimately entered judgment for the defendants, but a panel of the Indiana Court of Appeals reversed and remanded in a 43-page opinion in Sue Williams, Linda Wood, and Claude Wood, as the Co-Personal Representatives of the Estate of Rachel A. Wood, Deceased v. Indiana Department of Correction, Corizon, Inc., et al., 19A-CT-1832.

Although it found that two Corizon nurses at the Indiana Women’s Prison did not breach the standard of care or act in a plainly inappropriate manner when dealing with Woods, the appellate court concluded that genuine issues of material fact precluded the entry of summary judgment for Corizon medical providers Dr. Richard Hinchman, Dr. Vance Raham, Dr. Daniel Rains, and nurse practitioners Dawn Antle and Georgeanne Pinkston.

“The record does not suggest a single or isolated instance of medical mistreatment, nor does it suggest that Wood’s medical providers reasonably responded to her needs but simply failed to avert harm. The record instead shows systemic and gross deficiencies in her medical care throughout her incarceration, which deficiencies the Estate’s expert directly connected to her cause of death. Genuine issues of material fact support at least an inference that Wood’s medical providers ‘disregard[ed] an excessive risk to [Wood’s] health or safety,’” Judge Edward Najam wrote for the appellate panel.

Additionally, the appellate panel found the trial court erred in granting summary judgment to Corizon and the DOC, concluding that the evidence designated by the parties with respect to the estate’s claims against the Corizon medical employees was relevant and available against Corizon under the doctrine of respondeat superior.

Likewise, the appellate court found genuine issues of material fact precluded the entry of summary judgment for the DOC on the questions of breach and proximate causation.

Juvenile Termination of Parental Rights — Due Process/Interstate Compact on the Placement of Children

Termination: E H v. Indiana Department of Child Services

19A-JT-01969

A father will have his parental rights restored after an Indiana Court of Appeals ruling that reiterated the Department of Child Services does not have the authority to set policy inconsistent with the law.

Soon after his son was born in Indiana, E.H. moved to Florida to live with his parents and prepare for the child and mother to join him. When the mother eventually admitted to DCS that she was unable to care for the child due to homelessness, a child in need of services petition was filed.

When E.H. subsequently sought custody of the child, he was informed that a home inspection in accordance with the Interstate Compact on the Placement of Children was required before the child could be placed with him. That process never happened by the time the child was adjudicated a child in need of services, however, because E.H. had returned to Indiana to seek custody.

E.H. participated in some services ordered by DCS, but not all, and the department eventually filed to terminate his parental rights. The Dearborn Circuit Court ultimately ordered the termination and E.H. appealed, contending that the termination order must be reversed due to the tainted proceedings in the case.

The Indiana Court of Appeals agreed with E.H., siding with his argument that DCS’s failure to place the child with him and requiring him to complete the ICPC process was a procedural error that resulted in the improper termination of his parental rights.

Citing In re D.B., 43 N.E.3d 599, 604 (Ind. Ct. App. 2015), the appellate court noted “that the ICPC does not apply to placement with an out-of-state parent” and disagreed with DCS’s assertion that at the time E.H. was required to comply with the ICPC, “the question of whether ICPC did not apply to a parent in every circumstances [sic] arguabl[y] remained unclear.”

“The majority opinion was the law, and DCS and the trial court were required to comply with that law,” Judge Elizabeth Tavitas wrote for the appellate court. “… DCS continually reaffirmed that its policy required Father to comply with the ICPC, despite our prior ruling that an ICPC is not required for natural parents. Importantly, DCS testified at the fact finding hearing that it was still DCS’s policy to require an ICPC for a parent. We are dismayed that DCS fails to understand the law regarding the ICPC’s inapplicability to natural parents, or, assuming DCS understands the law, DCS has chosen to ignore it.

“We find it unconscionable that DCS continues to require an ICPC for natural parents despite our Court’s reiteration that an ICPC is not required for natural parents. The law on this issue is well-settled,” the appellate court wrote. “On cross examination in this case, the DCS case workers stated that compliance with the ICPC — even for out of state parents — is their policy. DCS, however, does not have the authority to set policy inconsistent with the law, and DCS is reminded that it cannot ignore the law and must set policy based upon the law.”

Turning to the Matthews factors, the appellate court concluded that DCS’s procedural error tainted the proceedings so significantly that it could not say that E.H. was afforded his due process rights in the CHINS and termination proceedings.

“We cannot overlook these findings as Father’s lack of bond with the Child is no doubt due, in part, if not entirely, to DCS’s failure to initially place the Child with Father. The fact that the trial court put so much emphasis on this lack of bond, demonstrates to us that this error by DCS was a significant, contributing factor in the termination of Father’s parental rights,” the appellate court wrote.

It further noted that DCS “cannot merely choose another caretaker for the Child when the Child already has a parent willing and able to care for the Child. DCS does not get to hand select parents for the children of this State by not following the law.”

Noting the difficult position it was thus placed in, the appellate court reversed and remanded with instructions that the trial court vacate the order terminating E.H.’s parental rights in Termination: E H v. Indiana Department of Child Services, 19A-JT-01969.•

“Our sincere hope is that, in the future, DCS and the trial court will comply with the law to prevent the need for a decision such as this,” Tavitas wrote for the panel.•

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