« Ind. Decisions - 7th Circuit issues one Indiana decision today | Main | Ind. Courts - Governor appoints Miami Superior Court judge »

Tuesday, December 02, 2008

Ind. Decisions - Court of Appeals issues 4 today (and 5 NFP)

For publication opinions today (3):

In Termination of Parental Rights for S.B. and D.B., a 10-page opinion, Judge Riley writes:

Appellant-Respondent, Daniel Bailey, Sr. (Father), appeals the trial court’s involuntary termination of his parental rights to his children, S.B. and D.B. We affirm. * * *

Although not raised by either party, we find the dispositive issue in this case to be whether the trial court committed reversible error when it postponed its pronouncement of judgment and failed either to (1) terminate Father’s parental rights or (2) dismiss DCDCS’s termination petition at the conclusion of the termination hearing. Resolution of this issue requires that we interpret Indiana Code section 31-35-2-8. * * *

The trial court’s decision to postpone its pronouncement of judgment and give Father one final chance despite its conclusion that DCDCS had already satisfied its burden of proof was in direct violation of Indiana Code section 31-35-2-8 which clearly provides that a trial court shall either find the allegations in the petition to be true and terminate the parent-child relationship, or find the allegations not to be true and dismiss the petition.

Because the trial court failed to comply with Indiana Code section 31-35-2-8, its judgment terminating Father’s parental rights to S.B. and D.B. is erroneous. Nevertheless, given the circumstances before us, we find the trial court’s error to be harmless. To be sure, while we do not approve of the trial court’s postponement of its ruling pursuant to Indiana Code sections 31-35-2-8 and 31-35-2-4, remanding this cause to the trial court with instructions to hold a new termination hearing would be against the twins’ best interests. The children have lingered in the system six months longer than needed while Father dabbled with services, continued to use alcohol, and failed to maintain regular contact with the twins. The twins need and deserve stability and permanency now. The current system has already been criticized for putting children in limbo too long, thereby fostering instability and unhinged relationships. See Baker v. Marion County Office of Family and Children, 810 N.E.2d 1035, 1040 (Ind. 2004). It is undeniable that it is within a child’s best interest and overall well being to limit the potential for years of litigation and uncertainty. See id. In light of these considerations and the trial court’s clear determination that the DCDCS satisfied its burden of proof on November 5, 2007 and again on February 26, 2008, we affirm the trial court’s termination of Father’s parental rights to the twins.

CONCLUSION Based on the foregoing, we hold that, although the trial court violated Indiana Code section 31-35-2-8 by postponing its pronouncement of judgment, this error was, given the circumstances, harmless. Affirmed.

In Clay City Consolidated School Corp. v. Ronna Timberman and John Pipes II , a 24-page opinion, Judge Riley writes:
Appellant-Defendant, Clay City Consolidated School Corporation (Clay City Schools), appeals the trial court’s denial of its motion to correct error and Order on remittitur awarding Appellees-Plaintiffs, Ronna Timberman (Mother) and John Pipes II (Father), $300,000 after a jury verdict. We reverse and remand.

ISSUES. Clay City Schools raises seven issues for our review, one of which we find dispositive and restate as: (1) Whether the trial court abused its discretion by instructing the jury in Final Instruction No. 20 that a thirteen-year-old boy is presumed to be incapable of contributory negligence.

Because we conclude that the trial court committed reversible error by issuing Final Instruction No. 20, we also consider the following issues to forestall unnecessary disputes upon remand and duplicative issues for another appeal, * * *

CONCLUSION For the foregoing reasons, we conclude that the trial court committed reversible error when instructing the jury that Indiana law contains a rebuttable presumption that children between the age of seven and fourteen cannot be contributorily negligent. Therefore we must reverse and remand for further proceedings consistent with this opinion.

In Jerry M. and Patti A. Weida v. City of West Lafayette, IN, a 19-page opinion, Judge Riley writes:
Appellants-Defendants, Jerry M. Weida (Jerry) and Patti A. Weida (Patti) (collectively, the Weidas), appeal the trial court’s Findings of Fact and Conclusions of Law entered following a bench trial in favor of Appellee-Plaintiff, City of West Lafayette, Indiana (the City), on the City’s allegation that the Weidas’ five-bedroom rental house was overoccupied during the 2005-06 Purdue school year. We affirm in part and reverse in part.

The Weidas raise six issues on appeal, which we consolidate and restate as the following four issues: (1) Whether the trial court erred by concluding that the Weidas permitted or allowed the overoccupancy of their rental house; (2) Whether the trial court properly admitted the testimony of the City’s witnesses, whose testimony was induced by the City’s promise of post-trial consideration if they testified truthfully at trial; (3) Whether the trial court erred by ruling on claims pending in other actions and other courts; and (4) Whether the trial court’s award of costs was contrary to law. * * *

In a nutshell, the Weidas now essentially assert that the pivotal duty under the Ordinance is not to permit or allow overoccupancy at 112 Sylvia Street, whereas the duty to monitor, as included in the Ordinance’s first sentence, is merely a secondary obligation. Additionally, they allege that the “permit or allow” language includes a culpability element, i.e., the Weidas argue that the City was required to prove that they intended to permit or allow the overoccupancy. As the City cannot prove that they affirmatively permitted the overoccupancy, the Weidas maintain that no investigation into the secondary duty needs to be made and the trial court’s judgment should be reversed.

The City, on the other hand, asserts that the Weidas’ proposed interpretation would make a violation of a duty to monitor without consequence. Instead, the City proposes an interpretation of the entire section—without parsing out the sentences one by one—whereby the landlord would be under a duty to monitor and to ensure proper occupation. As such, the City maintains that when a landlord fails this double duty, he ‘permits or allows’ overoccupancy. * * *

In sum, based on the evidence before us, we conclude that the trial court properly determined that the Weidas permitted or allowed the overoccupancy of their rental house in violation of City Ordinance 117.08(d). However, we hasten to add that our decision today should not be interpreted as an approval of the City’s Ordinance. Not only is the Ordinance poorly written, it is also, in places, highly ambiguous. We echo the sentiment expressed in Bowden v. City of West Lafayette, 79A05-0802-CV-66 (Ind. Ct. App. Oct. 17, 2008), slip op. 1 n.1, that this discussion is better saved for another day when these issues are not beyond the scope of our review and are properly presented to this court. Nevertheless, the issues, as raised by the Weidas, compel us to affirm the trial court. * * *

CONCLUSION. Based on the foregoing, we hold that (1) the trial court properly concluded that the Weidas permitted or allowed the overoccupancy of their rental house; (2) the Weidas waived their argument regarding the admission of the City’s witnesses at trial; (3) the trial court did not rule on claims pending in other actions and other courts; and (4) the trial court erred in its award of transcription costs. Affirmed in part, reversed in part.

[ILB - Note that Bowden, cited above, was a NFP.]

NFP civil opinions today (4):

Jeffrey L. Huntsman v. Patricia Cline-Asher (NFP) - "Based on the foregoing, we conclude that Huntsman [Appellant pro se] has waived all of his contentions but one: that the trial court was biased. However, we conclude that Huntsman has failed to establish that the trial court exhibited bias. "

In Oscar Guillen, Sr. v. City of Hammond, IN (NFP) - "Oscar Guillen, Sr., an inmate at Wabash Valley Correctional Facility, appeals the trial court’s dismissal of his claims for wrongful arrest and constitutional violations. In his pro se appeal, Guillen raises five issues, which we consolidate and restate as whether the trial court properly dismissed his claims pursuant to Indiana Code section 34-58-1-2. Concluding that Guillen’s claims are barred because he filed them after the expiration of the statute of limitations, we affirm."

In the Matter of the Adoption of B.J.L. and M.J.L. (NFP) - "C.L. (Appellant) appeals the adoption of his children, then thirteen-year-old B.J.L. and then nine-year-old M.J.L. (collectively, the Children) by the Children’s step-father, D.D. Appellant contends the trial court erred in (1) finding that he failed to communicate significantly with the Children, while able to do so, for a period of at least one year under Ind. Code Ann. § 31-19-9-8(a)(2)(A) (West, PREMISE through 2007 1st Regular Sess.), (2) concluding that the adoption could be granted without Appellant’s consent, and (3) ultimately granting the adoption. We affirm. "

David Tower v. Mark Johnson (NFP) - "David Tower appeals a declaratory judgment in favor of Mark Johnson in an action pertaining to a dispute arising from a partnership that the two had formed. Upon appeal, Tower presents the following restated issue for review: Did the trial court err in determining that Tower purchased Johnson’s interest in the partnership before the partnership assets were sold to a third party? We affirm. * * *

"Constrained by our standard of review, we conclude that this evidence supports the findings, which in turn support the judgment that Tower’s buyout of Johnson’s partnership interest was a fait accompli by the time of the January 25, 2005 closing. Thus, Tower has failed to demonstrate that the judgment is clearly erroneous."

NFP criminal opinions today (2):

Alfred W. Comer, Jr. v. State of Indiana (NFP)

Christopher Montgomery v. State of Indiana (NFP)

Posted by Marcia Oddi on December 2, 2008 01:17 PM
Posted to Ind. App.Ct. Decisions