Indiana Court Decisions: Nov. 30-Dec. 13, 2023

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7th Circuit Court of Appeals

Dec. 7

Heather Tutwiler v. Kilolo Kijakazi, Acting Commissioner of Social Security


ALJ properly analyzed ‘enough’ factors to support disability benefits denial, 7th Circuit rules

While an administrative law judge might have erred in his analysis of some factors in rejecting a woman’s disability benefits application, “enough” of his analysis supported his ruling, the 7th Circuit Court of Appeals ruled in affirming the benefits denial.

Plaintiff-appellant Heather Tutwiler applied for disability benefits and supplemental security income following her cancer diagnosis in 2014. Radiation treatment caused significant side effects that led to multiple surgeries and other symptoms, including gastrointestinal problems.

Tutwiler worked housekeeping and laundry jobs, but her gastrointestinal issues caused problems because she frequently became ill at work or had to take time off. Her hours were cut from full time to part time to “as needed,” and she was eventually fired.

Tutwiler filed her benefits application in May 2019 and requested a hearing before an ALJ when the state denied her application.

The ALJ ultimately concluded that Tutwiler was not disabled within the meaning of the Social Security Act, determining instead that she could work as an information clerk, table worker inspector, sorter, document prepare and address clerk.

Tutwiler then sought judicial review, and the Indiana Northern District Court affirmed the ALJ.

The 7th Circuit also affirmed in Heather Tutwiler v. Kilolo Kijakazi, Acting Commissioner of Social Security, 22-2808.

Tutwiler’s appeal focused on the ALJ’s determination of her residual capacity. The judge had determined that she could perform sedentary work with some restrictions, including only occasionally climbing stairs or kneeling or crouching, but never climbing ladders or ropes.

“She argues on appeal that the ALJ failed to consider all her limitations in his analysis and that he ‘cherry-picked’ the record for facts that were unfavorable to Tutwiler,” Senior Judge David Hamilton wrote in the opinion. “But in the district court, Tutwiler set forth only one argument: that the ALJ failed to consider adequately how Tutwiler’s gastrointestinal symptoms prevented her from working.”

Thus, Tutwiler forfeited any argument not related to her gastrointestinal symptoms, Hamilton wrote, rejecting her reliance on Arnett v. Astrue, 676 F.3d 586 (7th Cir. 2012).

As for the merits of Tutwiler’s argument regarding her gastrointestinal symptoms, the 7th Circuit found reversal was not warranted.

“Although the ALJ might have erred in his analysis of some factors, enough of them had adequate supporting evidence for this court to uphold his credibility determination,” Hamilton wrote.

Further, “Taken as a whole, the medical evidence presented an ambiguous picture as to the severity and persistence of Tutwiler’s symptoms,” he continued. “The ALJ considered some evidence that could have supported a more restrictive residual functional capacity than the ALJ found here, but other substantial evidence supports the ALJ’s decision.

“Reasonable minds could disagree with the ALJ’s appraisal of this conflicting evidence,” Hamilton concluded. “Yet judicial review is not designed for appellate judges looking at a transcript to re-weigh conflicting evidence.”

Indiana Supreme Court

Dec. 8

Thomas DeCola v. Norfolk Southern Corporation


IN Supreme Court dismisses appeal in property dispute involving Norfolk Southern

A trial court’s order in a property dispute between a North Judson man and a railroad company did not meet the criteria of a final judgment, the Indiana Supreme Court ruled in dismissing the man’s appeal.

According to court records, through a subsidiary, Norfolk Southern Corporation owned property in LaPorte County.

In 2019, Norfolk Southern fell delinquent on its property taxes.

Thomas DeCola bought the property at a tax sale two years later. Afterward, the county auditor issued DeCola a property tax deed.

DeCola brought a lawsuit against Norfolk Southern to quiet title. He sought judgment on the pleadings, which Norfolk Southern opposed, arguing it never received proper notice of the county’s decision to tax the property, the tax sale, the petition for tax deed or its right of redemption.

DeCola argued the LaPorte Circuit Court lacked jurisdiction to determine whether the tax deed was void for lack of notice.

Norfolk Southern asked the court to enter judgment for the company on all DeCola’s claims.

Because the trial court considered evidence outside the pleadings, it converted DeCola’s Indiana Trial Rule 12(C) motion to one for summary judgment.

The trial court then rejected DeCola’s jurisdictional objection and found the tax deed was void because Norfolk did not receive sufficient notice of the tax sale, the right of redemption or the petition for tax deed. It also denied DeCola’s motion for judgment.

DeCola filed a motion to reconsider, and Norfolk Southern filed its own motion for final judgment, asking the court to award it summary judgment on all claims.

The trial court did not rule on either motion, and the motion to reconsider was deemed denied.

DeCola appealed the denial of summary judgment. His notice of appeal said he was appealing “from a final order as defined by Ind. App. R. 2(H).”

The Court of Appeals of Indiana affirmed, finding genuine issues of material fact existed as to whether the company received the statutorily required notices.

DeCola then sought transfer, which the Indiana Supreme Court granted in its Dec. 8 order.

But the high court ultimately dismissed the appeal for lack of jurisdiction and remanded the case for further proceedings.

Justice Geoffrey Slaughter wrote the opinion, with all justices concurring.

According to Slaughter, the trial court’s order satisfied none of the five definitions of a final judgment set out in Rule 2(H) of the Indiana Rules of Appellate Procedure.

He wrote that the order did not “dispose[] of all claims as to all parties.”

“To the contrary, the order disposed of nothing,” Slaughter wrote. “DeCola’s quiet-title claim remains, as does Norfolk’s lack-of-notice argument.”

The order also made no express determination or direction in writing under Indiana Trial Rules 54(B) or 56(C) that judgment should be entered as to fewer than all issues, claims or parties; was not deemed final under Indiana Trial Rule 60(C); and was not a ruling on a motion to correct error under Indiana Trial Rule 59.

Finally, the order was not otherwise deemed final by law, Slaughter wrote.

The justice then noted that whether an order is immediately appealable is a jurisdictional question that cannot be waived and can be raised at any time, including by a reviewing court on its own motion.

“We raise the jurisdictional issue here to remind ourselves and our judicial colleagues of the importance of ensuring that courts exercise judicial power only where our jurisdiction is secure,” he wrote. “Imposing and enforcing limits on judicial power are important not only in their own right, but in sending the vital message that we police ourselves just as vigilantly as we do other government actors.”

The case is Thomas DeCola v. Norfolk Southern Corporation, 23S-PL-358.

Court of Appeals of Indiana

Dec. 4

Charles Andrew Wenner v. Gehrid Hensley, et al.


Landlord showed ‘procedural bad faith’ in appeal, COA rules in remanding for award of attorney fees

A landlord’s appeal of a small claims judgment against him was “permeated with procedural bad faith,” the Court of Appeals of Indiana ruled in affirming the lower court’s decision.

The appellate court also remanded the case for the determination of appellate attorney fees to be awarded to three tenants who brought the lawsuit against Charles Wenner, the landlord of a Bloomington property.

According to court records, Wenner owns a rental property at 702 S. Washington St. in Bloomington. But the residential rental occupancy permit was revoked in June 2020 by the city.

According to Wenner, who lives out of the country, the property had been overtaken by squatters and drug addicts for some time before the revocation.

On Jan. 19, 2021, Bloomington Housing and Neighborhood Development, or HAND, issued Wenner a temporary rental occupancy permit that expressly allowed Wenner to rent out only the house, not the garage, which remained out of compliance with the housing codes.

Gehrid Hensley saw Wenner’s rental listing online, filled out an application, then spoke with Wenner over the phone.

Hensley said there would be five individuals living in the rental, and while Wenner said five would be OK, only three could be on the lease. Wenner also cautioned that if HAND came for an inspection, they would need to say that two of the people were just visiting, as he had been fined in the past for allowing five tenants.

In late January 2021, Hensley and Quinn Kaiser went to tour the rental with Justin Kidd, who lived there while working on the property. The rental did not look like the pictures in the listing, as the windows were boarded up and work was being done on it.

Wenner assured them that the conditions would improve before the start of the lease in August. But Wenner did not inform the tenants of the restriction on use of the garage, which they planned to use for storage and playing music.

Hensley sent a $2,050 deposit to Wenner on Jan. 27, and the tenants later signed the lease, which was to begin on Aug.15, 2021.

Over the next several months, Hensley had some contact with Kidd about improvements being made at the rental, and he drove Kidd to Menards more than once to pick up supplies.

Hensley also helped by mowing the lawn two times at Wenner’s request to avoid fines by HAND. He also paid Wenner a portion of the first month’s rent early to help move improvements along.

But Kidd stopped working on the rental around mid-July without completing necessary repairs.

On or about July 26, the tenants went to check on the rental and discovered what they believed to be unlivable conditions, including mold. They immediately contacted Wenner and requested that he have professionals come in to assess and treat the mold.

Wenner responded that the tenants could just spray the mold with bleach and that hiring a professional service was not necessary. He otherwise tried to assure them that the rental would be ready by the beginning of the lease on Aug. 15, and warned them that they could not void the lease.

On Aug. 30, 2021, the tenants, by counsel through Student Legal Services, demanded that Wenner return their security deposit and prepaid rent.

Another written demand was sent to Wenner on Sept. 15, after the issuance of a HAND inspection report from the prior week, which documented around 70 existing violations.

The tenants began a small claims action against Wenner in December 2022, claiming that he breached the lease by failing to make necessary repairs and failing to conduct necessary cleaning to provide full use of the premises, including the garage. They also alleged that parts of the rental were “not fit for human habitation.”

The Monroe Circuit Court entered judgment for the tenants in the amount of $3,709.99, plus attorney fees in the amount of $2,000 and court costs.

Wenner appealed pro se.

The Court of Appeals affirmed the trial court’s judgment and remanded the case for a determination of appellate attorney fees to be awarded to the tenants, with the court stating that Wenner’s “procedural bad faith rises to the level of egregiousness for which appellate attorney’s fees are warranted.”

Chief Judge Robert Altice wrote the opinion for the appellate court.

Altice wrote that Wenner’s appellant’s brief violated the brief requirements of Indiana Appellate Rule 46(a).

“His brief is a series of nonsensical ramblings with the sole purpose of relitigating whether he could have had (or did have) the rental in habitable condition by August 15, 2021, and whether mold — the existence of which he does not dispute — was the real reason Tenants walked away from the lease. His reply brief is more of the same,” Altice wrote, adding that Wenner also improperly attempted to assert a counterclaim for the first time on appeal.

Wenner’s noncompliance with the appellate rules substantially impeded the appellate court’s review of the case, and the court found the issues waived, Altice wrote.

Also, the appellate court found that the case was appropriate for the assessment of appellate attorney fees, with Indiana Appellate Rule 66(E) providing the court with discretionary authority to award damages for frivolous or bad-faith filings.

Altice noted Wenner disregarded the form and content requirements of the court’s appellate rules.

“Moreover, aside from lacking citations to the record or providing a separate statement of facts section, the facts he relies on in his appellate briefs often lack support in the record or are irrelevant, and they are not stated in a light most favorable to the trial court’s judgment,” the chief judge wrote. “Finally, his briefs required an inordinate amount of time to decipher and wade through.”

Judges Leanna Weissmann and Dana Kenworthy concurred.

The case is Charles Andrew Wenner v. Gehrid Hensley, et al., 23A-SC-973.


Dec. 7

Joseph Chapo, Sherry Chapo, and Deputy Big Shot, LLC v. Jefferson County Plan Commission


In 3rd appeal, COA again rules against couple operating shooting range without a permit

Returning to the Court of Appeals of Indiana for the third time, a couple operating a shooting range on their property without the proper permitting failed to find relief from an order in favor of the local planning commission.

In 2012, Joseph and Sherry Chapo applied for a conditional use permit to operate “in the future an Indoor/Outdoor tactical and test firing range to be marketed to professional marksmen, law enforcement and light military forces in the region.” They also sought permission to manufacture and sell firearms on their property.

While those applications were pending, the Chapos incorporated their solely-owned business as Deputy Big Shot LLC.

The Jefferson County Board of Zoning Appeals approved the Chapos’ request to manufacture and sell firearms but denied the conditional use permit needed to operate the shooting range.

Despite the denial, the Chapos later operated a shooting range on the property. That included advertising for future tactical test firing range events and announcing the Deputy Big Shot “Grand Opening” in April 2016, among other advertisements and activities.

The advertisements and a citizen complaint prompted the Jefferson County zoning enforcement officer to twice order the couple to cease operating a tactical test firing range on their property.

When the Chapos failed to comply, the Jefferson County Plan Commission in May 2016 filed a complaint for injunction and damages alleging the Chapos were violating the zoning ordinance.

The Jefferson Circuit Court in January 2017 granted a preliminary injunction barring the Chapos from operating a shooting range on their property. The Chapos filed an interlocutory appeal and continued to operate the shooting range.

While the appeal was pending, the trial court found the Chapos in contempt for continuing to operate the shooting range in violation of the preliminary injunction.

In 2018, the appellate court affirmed the preliminary injunction.

The Chapos later moved under Indiana Trial Rule 60(B) for relief from the preliminary injunction and contempt findings. The motion claimed that those rulings were void because the commission lacked standing to bring the suit, and that the commission members had not filed oaths as statutorily required, making their offices vacant.

The trial court denied the 60(B) motion, prompting a second appeal. The COA again affirmed in 2021.

Meanwhile, the Chapos had moved for summary judgment, but the trial court instead granted summary judgment to the commission and enjoined the Chapos from operating the shooting range.

Additionally, the trial court ordered the Chapos to remedy and abate all violations within 90 days, and if that was not done, the commission was authorized to enter the property to remedy and abate the violations. Also, the Chapos were fined $209,625 plus $27,490.78 in attorney fees, as well as court costs.

That ruling prompted the Chapos’ third and instant appeal, in which the COA again affirmed.

The first issue on appeal was whether the Chapos are barred from challenging the initial denial of a conditional use permit back in 2012.

On that issue, the appellate court ruled that the BZA’s decision is not void and that the Indiana Shooting Range Protection Act is inapplicable.

“We conclude that the Chapos have not established that the ISRPA barred the BZA’s denial of their conditional use permit or rendered that decision void,” Judge Leanna Weissmann wrote. That’s because the safe harbor provisions of the ISRPA do not protect the Chapos’ shooting range, and its noise provisions do not apply.

“Without any showing that the ISRPA applies, we need not address the Chapos’ remaining arguments under that statute,” Weissmann wrote. “The trial court properly rejected the Chapos’ claim that the BZA’s 2012 decision was void based on the ISRPA.

“… We also find no merit in the Chapos’ remaining claims that the BZA lacked legal authority based on the Second Amendment and on the failure of the BZA members to take statutorily required oaths,” Weissmann added.

“As we have rejected all of the Chapos’ attacks on the BZA’s legal authority to deny the condition use permit in 2012,” she wrote, “we conclude that the Chapos have failed to establish that the BZA’s decision was void and subject to collateral attack.This ruling resolves the Chapos’ remaining summary judgment claims, all of which rest on an unavailable collateral attack on the BZA’s decision.”

The second issue raised on appeal was whether the trial court erred in ordering that county officials could enter the Chapos’ property to remedy the ordinance violations, or in fining the Chapos and ordering them to pay attorney fees.

The appellate court found no abuse of discretion.

“In support of this argument, the Chapos simply assert that there was no violation of the ordinance and therefore any sanctions were inappropriate,” Weissmann wrote. “But we have already determined that the trial court properly entered the permanent injunction based on the Chapos’ non-compliance with the Zoning Ordinance. Accordingly, they have presented no error.”

Finally, the COA determined that the Chapos’ had waived their argument that the fine was excessive in violation of the Eighth Amendment. The apppellate court also upheld the order for attorney fees.

Judges Patricia Riley and Cale Bradford concurred in Joseph Chapo, Sherry Chapo, and Deputy Big Shot, LLC v. Jefferson County Plan Commission, 23A-CT-467.


Dec. 11

Thomas Owens v. State of Indiana


Evidence sufficient to sustain battery conviction after parking lot brawl

A man convicted of felony battery never made a request of production for a media player that contained surveillance footage of his attack, the Court of Appeals of Indiana ruled in affirming the man’s underlying conviction.

According to court records, one night in January, Thomas Owens’ wife was with Jacob Dugas in Dugas’ SUV at a CVS Pharmacy in Indianapolis. Owens went to the CVS and fought with Dugas in the parking lot.

Surveillance footage showed that Owens ran from his car to the driver’s side of Dugas’ SUV holding a long, stick-like object. Dugas and Owens’ wife got out of the SUV, and after an interaction between Owens and Dugas behind the SUV, Owens and his wife walked away.

As they were heading to Owens’ car, Dugas stepped in front of Owens, blocking his path. Owens swung the stick-like object at Dugas and struck him with it.

Owens and his wife got into his car and left.

Dugas called 911, and an Indianapolis Metropolitan Police Department detective and evidence technician responded to CVS. The technician took photos of Dugas, which showed a bleeding cut on his head and blood on his ear, neck and cheek.

The detective spoke with Dugas and others at the scene and determined Owens was a suspect.

Later that night, IMPD officers found Owens at a gas station. When they asked Owens about the incident, he stated that Dugas attacked him with a stun gun, he never hit or touched Dugas, and Dugas was known to injure himself and blame it on other people.

The state charged Owens with Level 5 felony battery by means of a deadly weapon.

Owens’ counsel subpoenaed Dugas for a deposition on three dates, but Dugas failed to appear at any of the depositions.

As a result, the Marion Superior Court excluded Dugas as a witness and ordered the exclusion of “any and all testimony and/or other evidence referring or related to Jacob Dugas.”

Owens moved for judgment on the evidence pursuant to Indiana Trial Rule 50(A), which the court denied.

During review of the final jury instructions, the state again asked the court to omit “baseball bat” from the elements instruction, arguing that “the evidence has shown that there could have been a deadly weapon used, but that could have been anything, not just a baseball bat, and therefore, it should be removed.”

The court ultimately struck “baseball bat” from the instruction, which subsequently read “and the offense was committed with a deadly weapon against Jacob Dugas.”

The jury found Owens guilty as charged.

Owens later moved the court to supplement the trial record with Defendant’s Exhibit A, three video files from the CVS surveillance footage that the state produced during discovery, pursuant to Indiana Appellate Rule 32. The trial court said it was denying Owens’ motion because Rule 32 did not apply but would admit the exhibit for purposes of appellate review.

Owens appealed.

During discovery, the state provided Owens with footage from a CVS surveillance camera but not the media player, which affected the speed at which Owens could view the footage.

Owens argued this was a violation of Indiana Trial Rule 34, which governs requests for production of documents and electronically stored information during discovery and responses to such requests.

He also raised several other issues, including whether the trial court properly instructed the jury, whether the state presented sufficient evidence of the victim’s identity and the use of a deadly weapon, and whether the trial court erred in denying his motion to supplement the record.

The Court of Appeals found those arguments to be without merit and affirmed his conviction.

Judge Nancy Vaidik wrote the opinion for the appellate court.

Owens maintained there was insufficient evidence of the identity of the victim named in the charging information because the victim’s full name was never established at trial. He also contended the state failed to prove that the injured man in the evidence photos and the “Jacob” that Owens mentions in the bodycam video are “Jacob Dugas.”

According to Vaidik, although Dugas was never identified by his full name at trial, the state’s evidence and defense counsel’s reference to the victim as “Mr. Dugas” were sufficient for the jury to find that the victim referenced at trial was the “Jacob Dugas” named in the charging information.

The appellate court also rejected Owens’ claims that to prove the object he used in the battery was a deadly weapon, the state had to establish what the object was.

“… (T)here is no requirement in our statutes or case law that the State must prove exactly what object a defendant used to convict for battery by means of a deadly weapon. Instead, in determining whether an object constitutes a deadly weapon, the factfinder looks to its capacity to inflict serious bodily injury under the circumstances,” Vaidik wrote, citing Timm v. State, 644 N.E.2d 1235 (Ind. 1994).

Owens also argued the trial court erred in denying his motion to supplement the record with the CVS video files he received from the state during discovery.

Vaidik wrote that Owens’ motion to supplement the record amounted to an untimely offer of proof, and his counsel admitted as much at the hearing on the motion.

“And in any event, although the trial court denied Owens’s motion under Rule 32, it still admitted Defendant’s Exhibit A for purposes of appellate review, so the goal of the motion was satisfied. Owens doesn’t explain how denial of the motion caused him any harm or what difference it would have made if the court had granted it,” Vaidik wrote.

Judges Cale Bradford and Elaine Brown concurred.

The case is Thomas Owens v. State of Indiana, 23A-CR-985.

Dec. 12

Charles Jennings v. Jessica A. Smiley and Progressive Southeastern Insurance Company


Denial of motion to compel cellphone evidence wasn’t error, COA affirms

A trial court did not err in denying a pedestrian’s motion to compel cellphone evidence in his suit against the woman who struck him with her car, the Court of Appeals of Indiana affirmed.

In December 2019, Jessica Smiley was driving on Westfield Boulevard near Wood Valley Drive in Carmel when she struck Charles Jennings, who was walking across Westfield Boulevard. Smiley claimed she was unable to see Jennings because he stepped out from behind a box truck, which blocked her view.

In February 2020, Jennings sued Smiley, alleging she was negligent when she failed to use due care while driving, maintain a proper lookout, yield the right of way to pedestrians, and control her vehicle to avoid striking a pedestrian.

Smiley in response claimed Jennings had been contributorily negligent.

In February 2021, Jennings requested production of Smiley’s phone for inspection. A month later, Jennings moved to compel discovery of Smiley’s phone data to determine whether the navigation application Waze had been running at the time of the incident.

Jennings explained that the request arose after an accident reconstructionist generated a report that found “Smiley was inattentive and/or distracted” while driving. Also, Smiley testified that she had been using Waze earlier in the day, but not while she was driving.

The Hamilton Superior Court granted Jennings’ motion to compel.

But Smiley filed a petition to reconsider, citing privacy concerns, and the trial court subsequently denied Jennings’ motion to compel because “it had drastically misconstrued a piece of evidence which was central to its decision to grant [Jennings]’s motion.”

At an ensuing jury trial, investigating officers testified that Jennings had not crossed at an intersection, nor was there a crosswalk, yield sign, stop sign or pedestrian crossing sign, and the accident happened at rush hour on a busy road. The officers also testified there was no evidence that Smiley was distracted, speeding or driving recklessly.

Additionally, Jennings’ accident reconstruction expert admitted that Smiley could not have seen Jennings before the oncoming truck had passed him because she would have been too far down the road.

The jury ultimately found Jennings had been 90% at fault and Smiley at 10% at fault, and the trial court entered judgment in favor of Smiley.

On appeal, Jennings argued the trial court’s refusal to allow telephone inspection constituted reversible error. However, the appellate court disagreed.

“Based on the record before us, we conclude that the burden of Jennings’s proposed telephone inspection outweighs its likely benefit in light of Smiley’s significant privacy concerns,” Judge Cale Bradford wrote.

Bradford noted that in the past, the COA has ruled that searching the data of a modern cellphone is intrusive, so Jennings would’ve had to provide strong indicators that Smiley had been using her phone at the time of the accident.

“Without sufficient indicators that Smiley was using her cellular telephone at the time of the accident, we cannot say that the trial court abused its discretion in denying Jennings’s discovery request,” Bradford wrote.

The case is Charles Jennings v. Jessica A. Smiley and Progressive Southeastern Insurance Company, 23A-CT-303.


Dec. 13

In the Matter of the Paternity of A.J.L.B., a Minor by his next friend Grisel Bonilla Lemus v. Jaime Lazo Alvarenga


COA reverses, rules mother’s petition was sufficient to raise SIJ status for child

A mother’s motion to amend language in her paternity judgment to conform with her child’s federal immigration petition requirement should have been granted, the Court of Appeals of Indiana ruled.

According to court records, in May, Grisel Bonilla Lemus filed a paternity petition for her child, A.J.L.B., who was born in February 2013 in Honduras.

The petition alleged that Jaime Lazo Alvarenga is the child’s biological father and is identified as such on the child’s birth certificate, and that the mother and father have never resided together. It also stated that the father has not communicated with or provided financial support for the child for nine years, and his exact whereabouts are unknown.

The mother sought establishment of paternity and sole legal and physical custody of the child. At a hearing, she explained that she brought the child to the United States when he was 6 years old because it was not safe in Honduras.

The trial court entered judgment granting the mother’s petition, but the judgment did not include findings 19 and 20. Those findings in the proposed order said that Lemus would be appointed sole legal and physical custody, and that the child had been abandoned by his father.

The mother filed a motion to correct error in which she asked the trial court to amend the judgment to add those findings, which are required for Special Immigrant Juvenile status.

In the motion, the mother stated that the child was working to resolve his immigration status, which included an SIJ status petition, and that the United States Citizenship and Immigration Services requires that the judgment include specific language regarding certain findings.

But the trial court denied motion to correct error on the basis that neither the mother nor her counsel had requested the findings with the language needed for SIJ status in the mother’s petition or during the hearing.

Then, pursuant to Indiana Trial Rule 15(B), the mother filed a motion to amend the pleadings, which the court also denied.

Lemus appealed and argued that the trial court erred in denying her motion to correct error because the requested SIJ findings were sufficiently before the court. She also asserted that the trial court erred in denying her motion to amend the pleadings because the evidence at trial supported amendment.

The Court of Appeals agreed with the mother and reversed and remanded with instructions to grant the mother’s motions and issue a new judgment with the requested SIJ findings.

Judge Terry Crone wrote the opinion for the appellate court.

Crone noted that although the final decision regarding whether a child qualifies for SIJ status is made by the federal government, the process for obtaining SIJ status requires “the collaboration of state and federal systems.”

According to Crone, the trial court’s denial of the mother’s motion was done on the basis that she never requested “the Court to make certain findings necessary to seek classification as a special immigrant juvenile in accordance with 8 U.S.C. § 1101(a)(27)(J).”

“Mother concedes that her petition could have been clearer but asserts that the requested SIJ findings were sufficiently before the trial court because the facts to support the SIJ findings were pled, the evidence supported the facts, and the requested findings were in the proposed order,” Crone wrote.

Agreeing, Crone pointed to In re Guardianship of Xitumul, 137 N.E.3d 945 (Ind. Ct. App. 2019), and wrote, “Like the Court in Xitumul, we conclude that the requested SIJ findings were before the court, and therefore the trial court abused its discretion by denying Mother’s motion to correct error.”

The appellate court also found that the trial court abused its discretion by denying the mother’s motion to amend the pleadings.

“The amendment would allow the petition to request relief that conforms to the evidence,” Crone wrote.

“… Although we have found that Mother’s motions should have been granted, we nevertheless believe that the better practice would have been to clearly indicate to the trial court in the petition or at the hearing that specific SIJ findings were being requested,” he added. “Obviously, that would have avoided the difficulties encountered here.”

Judges Patricia Riley and Paul Mathias concurred.

The case is In the Matter of the Paternity of A.J.L.B., a Minor, by his next friend Grisel Bonilla Lemus v. Jaime Lazo Alvarenga, 23A-JP-1436.•

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