The Indiana Law Blog: Ind. Decisions - Court of Appeals issues 4 today (and 17 NFP)

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Tuesday, July 07, 2009

Ind. Decisions - Court of Appeals issues 4 today (and 17 NFP)

For publication opinions today (4):

Indiana Family and Social Services Administration v. Robert T. Pickett - "[W]e grant rehearing for the limited purpose of making clear that we intended to affirm the trial court’s order of reversal and remand. To avoid any further confusion, we instruct that the agency’s action should be consistent with our opinion, the trial court’s order, and the lawful requirements of the Medicaid program. We affirm our original opinion in all other respects."

In In the Matter of Custody of J.V.; D.V. v. J.L., a 7-page opinion, Judge Mathias concludes:

But while this evidence supports the trial court's determination that Grandmother is J.V.‟s “de facto custodian,” the trial court was also required to consider whether awarding custody of J.V. to Grandmother is in J.V.'s best interests. In its order awarding custody of J.V. to Grandmother, the trial court failed to make this determination. Although there is evidence in the record suggesting that awarding custody of J.V. to Grandmother is in J.V.'s best interests, we remand this case to the trial court with instructions to enter the findings required to support its custody determination. Such findings are particularly important in this case given the significant burden a third party must overcome to rebut the presumption that the natural parent should have custody of his or her child. See B.H., 770 N.E.2d at 287 (“A generalized finding that a placement other than with the natural parent is in a child‟s best interests, however, will not be adequate to support such determination, and detailed and specific findings are required.”) Remanded for proceedings consistent with this opinion.

In Jimmy Atteberry v. State of Indiana , a 18-page opinion, Judge Mathias writes:

If the evidence in Goolsby was insufficient to prove penetration, then likewise, we are constrained to conclude here that evidence of trauma to L.L.'s anus, plus the presence of semen stains in her underwear, are insufficient to prove that Atteberry penetrated L.L.'s sex organ with his sex organ. We must therefore conclude that the evidence is insufficient to support Atteberry's conviction for rape.

The evidence at trial and on review clearly demonstrates that Atteberry sexually assaulted L.L. anally. But the crime of rape in Indiana does not include such conduct, which is instead defined by statute as criminal deviate conduct, a crime for which Atteberry was not charged. The State apparently realized that it had charged the wrong crime when it untimely and unsuccessfully attempted to amend the charging information on the day trial was to begin to allege that Atteberry committed criminal deviate conduct.

The State's failure to properly charge Atteberry is no mere technicality that we may overlook. Fundamental due process and common sense both require that the State must prove the elements of the crime it charged, not the elements of some other crime the defendant may have committed. * * * Because the State charged Atteberry with rape, but failed to present evidence sufficient to prove the essential element of penetration of the victim‟s sex organ by Atteberry‟s sex organ, we must and do reverse that portion of the judgment pertaining to Atteberry‟s Class A felony rape conviction and remand with instructions that the trial court vacate that conviction and the sentence imposed thereon.

Myron Owens v. State of Indiana - "The State presented sufficient evidence to establish that Owens delivered cocaine to the C.I. and that such transaction occurred within 1,000 feet of the Daycare Center. The trial court did not err in applying the habitual offender enhancement to Owens’s sentence for dealing in cocaine."

NFP civil opinions today (3):

Beaty Construction v. Board of Safety Review, et al (NFP) - "Here, Beaty's crane inspection records were sometimes signed by the person who did not perform the inspection. This is clearly contrary to the requirements of the applicable regulation. Beaty claims that although the inspection reports may not have been signed by someone other than the inspector on a daily or weekly basis, they were signed by the actual inspector at least monthly, which it claims is all that is required under 29 C.F.R. 1926.550(b)(2). However, Beaty admits that the inspection reports were at times signed by someone other than the actual inspector. Still, Beaty argues that it complied with the spirit of the law, if not the letter. We disagree. The applicable regulation requires that the inspection reports be signed by the inspector. Beaty admits that this was not always done in its inspection reports. Although Beaty claims that this irregularity was at most a de minimis violation, this is precisely why the safety report cited Beaty for a non-serious violation and issued no fine."

Josif Obetkovski v. Inland Steel Industries (NFP) - "Based upon the foregoing discussion and authorities, we conclude that the Board did not err in finding that Obetkovski failed to give Inland notice of the alleged work-relatedness of his injury and that this failure prejudiced Inland. In addition, there is ample evidence to support the Board’s conclusion that Obetkovski did not suffer a compensable injury in the course and scope of his employment with Inland."

In K.L.M. v. D.M.M. and J.R.M. (NFP), a 14-page opinion, Judge Friedlander concludes:

In the instant case, it is undisputed that Mother is a fit parent, who has consistently allowed visitation between Grandparents and her children even in the face of hostile treatment. In fact, Mother concedes that grandparent visitation is in the best interests of her children. The issue, therefore, is how much visitation. Under the circumstances presented here, we believe Mother is best suited to make this decision for her children. * * *

The trial court concluded that Grandparents were entitled to “consistent and predictable” visitation with the children. We have previously observed, however, that “the Act only contemplates occasional, temporary visitation as found to be in the best interest of the child.” Swartz v. Swartz, 720 N.E.2d at 1222. This is exactly the type of visitation Mother was allowing prior to the filing of the instant petition, as well as after. The trial court’s decision to grant court-ordered visitation to Grandparents was clearly erroneous.

In their grief over losing their son, Grandparents’ urge to hold close to their grandchildren is understandable. Unfortunately, they have attempted to do so while pushing the children’s mother, a fit mother, away. Mother clearly desires for her children to have a close relationship with Grandparents, despite the wounds they have inflicted upon her. In time, these wounds will likely heal, and Grandparents are well advised not to create new ones. There is no doubt that Grandparents and Mother dearly love G.M. and B.M. In the best interests of the children, as well as Father’s memory, Mother and Grandparents need to put aside their recent differences and move forward. In doing so, Grandparents must accept that they are not entitled to visitation on their terms. As set forth above, Mother is best suited to schedule the children’s visits, ideally after consultation with Grandparents. Regardless, the facts and circumstances presented here do not warrant state intervention. Judgment reversed.

NFP criminal opinions today (14):

Jamus T. Neal, Sr. v. State of Indiana (NFP)

Kenya Stocking v. State of Indiana (NFP)

Gewon Johnson v. State of Indiana (NFP)

Darren Reese v. State of Indiana (NFP)

Angela N. Jackson v. State of Indiana (NFP)

Michael J. Ozechowski v. State of Indiana (NFP)

Maurice Hardiman v. State of Indiana (NFP)

Anthony A. Hopkins v. State of Indiana (NFP)

Tracey Wheeler v. State of Indiana (NFP)

Uriah I. Davis v. State of Indiana (NFP)

Dekontee Chedo v. State of Indiana (NFP)