Monday, November 30, 2009
Ind. Decisions - Supreme Court issues two more opinions late today
In Ava McSwane, et al v. Bloomington Hospital and Healthcare System and Jean M. Eelma, M.D., an11-page, split (see below) opinion, Chief Justice Shepard writes:
The estate of a domestic violence victim whose former husband killed her on the way home after she insisted on leaving the hospital with him sued the hospital and the treating physician for her death. The trial court granted summary judgment on the basis of lack of duty and contributory negligence. We affirm. * * *In Term. of Parent-Child Rel. of M.B., et al; T.B. v. IDCS, a 15-page, 5-0, 2 opinion decision, Justice Sullivan writes:
While negligence is generally a question for the finder of fact, where the evidence permits only a single inference, contributory negligence may be a matter of law for the court. Funston v. Sch. Town of Muncie, 849 N.E.2d 595, 599 (Ind. 2006). The trial court found that Malia’s insistence on leaving with Monty in the face of offers by hospital staff and pleas by her own mother was negligence that contributed to her injury. This was not error.
Conclusion. We affirm the judgment of the trial court.
Sullivan, J., concurring in part and concurring in result, agrees with Chief Justice Shepard that summary judgment was appropriate on grounds that the defendants did not breach their duty of care as a matter of law and, therefore, it not being necessary to address the issue of contributory negligence, expresses no view on it.
Boehm, J., concurs in result.
Rucker, J., dissents with separate opinion in which Dickson, J., joins. [the opinion begins] I agree with the majority that “a hospital’s duty of care to a patient who presents observable signs of domestic abuse includes some reasonable measures to address the patient’s risk.” Although the existence of duty is a matter of law for the courts to decide, a breach of duty is usually a matter left to the trier of fact. King v. Northeast Security, Inc., 790 N.E.2d 474, 484 (Ind. 2003). Only where the facts are undisputed and lead to but a single inference or conclusion may the court as a matter of law determine whether a breach of duty has occurred. Id. Unlike the majority however I do not believe the question of breach in this case can be determined as a matter of law.
A mother seeks restoration of her parental rights, contending that she voluntarily agreed to the termination on the condition that she could continue visitation with her children, only to have visitation terminated at a subsequent hearing of which she received no notice or opportunity to be heard. Conditioning the voluntary termination of parental rights on continuing post-adoption visitation irreconcilably conflicts with Indiana adoption law and is not permitted. On the facts of this case, the mother is entitled to a hearing on the termination of her visitation rights but not a full restoration of her parental rights. * * *
We are presented with a situation in which Mother contends that she voluntarily agreed to the termination of her parental rights subject to continued and ongoing visitation with her child-ren, only to have that visitation right terminated at a hearing of which she received no notice and no opportunity to be heard. She asks to restore the status quo ante such that all her parental rights would be restored and any termination proceedings would need to begin anew.
For the following reasons, set forth in detail below, we conclude that Mother is entitled to some relief but not a full restoration of her parental rights. When she voluntarily relinquished her parental rights, it was not subject to unconditional future visitation with her children but only visitation so long as it was in the Children’s best interests. As such, she knew and agreed that visitation might be terminated in the future. On the other hand, due process demanded that she be given notice and the opportunity to be heard before visitation was terminated. * * *
We hold that, unless all of the provisions of Indiana’s open adoption statutes (I.C. §§ 31-19-16-1 & 2) are satisfied, the voluntary termination of parental rights may not be conditioned upon post-adoption contact privileges. * * *
We agree with the Court of Appeals that the visitation proviso contained in the Adden-dum was invalid as a matter of Indiana law, see supra Part I. We decline to analyze this as a matter of contract law, however, and instead conclude that the Addendum should be honored af-ter taking into account the following three factors. * * *
Given these three factors – that the State voiced no objection to the visitation proviso and acknowledged and complied with it; the trial court’s colloquy with Mother expressly referenced the visitation proviso; and the visitation proviso was not unconditional – it would be inequitable and unjust to hold that Mother’s voluntary relinquishment of her parental rights was not subject to ongoing but conditional visitation rights. We hold, on the facts of this case, that Mother’s pa-rental rights were terminated as provided in I.C. §§ 31-35-1-12(2)(A) & (B) except that that she had the right to ongoing periodic visitation with the Children unless and until a court were to de-termine that such visitation was no longer in the children’s best interest. If a court were to make such a determination, she would not be entitled to further visitation. * * *
Having found that Mother’s voluntary relinquishment of her parental rights was subject to conditional visitation rights, Mother further maintains that because her rights to notice and an opportunity to be heard at the hearing terminating her visitation rights were violated, the earlier termination of her parental rights should also be vacated. We hold that her parental rights remain terminated and that she is entitled to no relief in that regard. She consented to the termination in a proceeding that appears to us to have accorded with all relevant law, save the visitation provi-so. While she retains an enforceable right as to the visitation proviso, this does not create any basis for reopening the termination of parental rights proceeding.
Conclusion. Having previously granted transfer, we affirm the trial court’s acceptance of Mother’s vo-luntary termination of her parental rights to the Children. We reverse the trial court’s decision to terminate Mother’s visitation rights at the three month CHINS review hearing and remand this case to the trial court with instructions that should the State continue to seek termination of Mother’s visitation rights, the court consider the request at a hearing that accords with the requirements discussed in this opinion.
Shepard, C.J., and Dickson and Rucker, JJ., concur.
Boehm, J., concurs in result with separate opinion. [that begins] I concur in Part III of the majority opinion. I agree with the result reached by the majori-ty in Parts I and II, but I do not agree that a consent with an invalid condition is nonetheless a consent. I would, as the majority puts it, resolve Mother’s claim as a matter of contract. Mother consented to termination, but attached an addendum containing a written condition—on its face a perpetual unchallengeable right to visitation—that violated several statutory provisions. A con-sent with an unacceptable condition is no consent at all.
Posted by Marcia Oddi on November 30, 2009 04:26 PM
Posted to Ind. Sup.Ct. Decisions