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Friday, September 07, 2012

Ind. Decisions - Court of Appeals issues 2 today (and 8 NFP) [Update: See note at end of entries]

For publication opinions today (2):

In Kenneth W. Smith and Deb-Anne Smith v. Dermatology Associates of Fort Wayne, P.C. a/k/a Dermatology & Laser Surgery Associates of Fort Wayne, P.C., a 10-page opinion, Judge Kirsch restates the issue as: "Whether the trial court erred by concluding that the Smiths had failed to present sufficient evidence to invoke the doctrine of res ipsa loquitur." J. Kirsch concludes:

We cannot say that the evidence leads unerringly to a conclusion that is different than that reached by the trial court.

We further conclude that the Smiths’ substantial rights were not adversely affected as a result of the trial court’s refusal to apply the doctrine of res ipsa loquitur. The inference was not applied because there was contrary evidence on each of the elements of the doctrine. The trial court, as trier of fact, was left to resolve the conflicts in the evidence and to determine which testimony was more credible. Although the Smiths’ sole theory of recovery was res ipsa loquitur, they did not meet their burden of persuasion, and have failed to establish on their appeal from a negative judgment that the evidence leads unerringly to a conclusion that is different from that reached by the trial court.

In In Re Adoption of M.L.; J.H. v. J.L. and C.L., a 16-page opinion, Judge Crone writes:
In 2008, J.L. and C.L. (collectively, “the Adoptive Parents”) became concerned that their grandson, M.L., and his half-brother, L.H., were not being properly supervised. The Adoptive Parents obtained a guardianship over M.L. and L.H. L.H.’s father, J.H. (“Father”), consented to the guardianship due to his inability to take care of his son at that time. Since then, L.H. and M.L. have remained in the Adoptive Parents’ care.

In October 2010, the Adoptive Parents filed a petition to adopt L.H., which Father contested. The Adoptive Parents argued that Father’s consent was not necessary because he had failed to communicate significantly with L.H. for a period of one year, had failed to support L.H. for a period of one year when he was able to do so, and was unfit to be a parent. After an evidentiary hearing, the trial court found that the Adoptive Parents had established all three grounds for dispensing with Father’s consent. The trial court found that adoption was in L.H.’s best interests and granted the Adoptive Parents’ petition.

Father appeals, arguing that the evidence is insufficient to prove that his consent was not required and that adoption was in L.H.’s best interests. Given Father’s history of substance abuse, his history of depression, his reluctance to follow treatment recommendations, his lack of insight, and his instability in housing and employment, we conclude that there is sufficient evidence that Father is unfit to parent; therefore, we need not address the alternate grounds for dispensing with his consent. In addition, the evidence favorable to the judgment indicates that L.H. lacks a bond with Father, but is bonded with the Adoptive Parents and M.L.; that the Adoptive Parents have provided a stable home, which L.H. views as his home; and that the Adoptive Parents have been successfully addressing L.H.’s developmental issues. This evidence is sufficient to show that adoption is in L.H.’s best interests. Therefore, we affirm.

NFP civil opinions today (0):

NFP criminal opinions today (8):

Timothy A. Bolin v. State of Indiana (NFP)

*Dwayne Rhoiney v. State of Indiana (NFP)

Damionne M. Nichols v. State of Indiana (NFP)

Janella Datcher v. State of Indiana (NFP)

Terrance Mitchem v. State of Indiana (NFP)

*Lance Scott Boutte v. State of Indiana (NFP)

*Curtis B. Lay v. State of Indiana (NFP)

*T.A.B. v. State of Indiana (NFP)
* Four of the NFPs today were written by Judge Rudolph R. Pyle III, who took the oath on August 27th.

Posted by Marcia Oddi on September 7, 2012 04:00 PM
Posted to Ind. App.Ct. Decisions