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Friday, June 15, 2012

Ind. Decisions - Court of Appeals issues 2 today (and 2 NFP)

For publication opinions today (2):

In David Ashabranner v. Sandy Wilkins, f/k/a Ashabranner, an 11-page opinion, Chief Judge Robb writes:

David Ashabranner (“Father”) appeals a trial court order denying emancipation of his child, Cassandra Ashabranner, and continuing his obligation to pay child support. Father raises three issues which we restate as: 1) whether the trial court erred in declaring Cassandra not emancipated, 2) whether the trial court erred in not ordering Sandy Ashabranner Wilkins (“Mother”) to pay child support, and 3) whether the trial court erred in calculating the amount of child support without considering Cassandra’s income and ability to partially provide for herself. We conclude that, based on the evidence presented, the trial court did not err in declaring Cassandra to be unemancipated. We further conclude that the trial court did err in failing to order Mother to pay child support but did not err in refusing to consider Cassandra’s income or ability to partially provide for herself. Accordingly, we affirm in part and remand in part.

[ILB: Footnote 6 on p. 6 states re IC 31-16-6-1, "This section was recently amended to allow termination of child support, except for support for educational needs, once a child becomes nineteen years of age. This amendment becomes effective July 1, 2012, and does not affect the disposition of this appeal." For more on the law, see this ILB entry from June 9th.]

In Term. of Parent-Child Rel. of H.K., Ta.K., and Ty.K., (Minor Children), and R.K., Their Mother, and D.K., Their Father; R.K. (Mother) v. The Indiana Dept. of Child Services, an 8-page opinion, Judge Bailey writes:
R.K. (“Mother”) appeals the involuntary termination of her parental rights to her children, H.K., Ta.K., and Ty.K. The sole issue on appeal is whether the termination order should be set aside because the Indiana Department of Child Services failed to provide Mother with adequate notice of the termination hearing. We remand with instructions. * * *

Because Mother claimed that KCDCS failed to provide her with notice of the August 2011 termination hearing, the burden has shifted to KCDCS to prove compliance with Indiana Code section 31-35-2-6.5. The trial court’s CCS makes clear that an order was “entered” on June 3, 2011, following the court’s consolidated initial hearing in the termination cases. The specific language of the trial court’s order, however, was not included in the CCS entry, and the CCS does not indicate whether the trial court’s order was ever provided to Mother and/or whether the order included the date of the final evidentiary hearing scheduled in August 2011. * * *

Although Indiana Code section 31-35-2-6.5 does not require compliance with Indiana Trial Rule 4, which governs service of process and incorporates a jurisdictional component, KCDCS was nevertheless required by Indiana Code section 31-35-2-6.5 to send notice of the termination hearing to Mother’s last known address at least ten days before the hearing. * * *

Unfortunately, it is not clear from the record whether KCDCS sent proper notice of the August 2011 termination hearing to Mother’s last known address, and this court cannot simply rely upon attorney Lee’s unsubstantiated comment to the trial court that “Ms. Ford mailed notice of today’s hearing to [Mother’s] last known address . . . which came back” for purposes of determining on appeal whether LCDCS fulfilled its statutory notice obligations set forth in Indiana Code section 31-35-2-6.5. * * *

We therefore conclude that the most appropriate remedy is to remand this cause to the trial court with instructions that the court conduct a hearing to determine (1) whether KCDCS complied with the statutory notice mandates of Indiana Code section 31-35-2.6.5 by properly notifying Mother of the August 29, 2011 termination hearing and (2) if the notice requirements of Indiana Code 31-35-2-6.5 were not met, whether this procedural irregularity violated Mother’s due process rights under the facts of this case.

NFP civil opinions today (0):

NFP criminal opinions today (2):

Otoniel Muro-Esparza v. State of Indiana (NFP)

Dale Douglas Perkins, Jr. v. State of Indiana (NFP)

Posted by Marcia Oddi on June 15, 2012 10:42 AM
Posted to Ind. App.Ct. Decisions