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Wednesday, January 30, 2013

Ind. Decisions - Court of Appeals issues 3 today (and 12 NFP)

For publication opinions today (3):

In Peter F. Amaya v. D. Craig Brater, M.D., in his capacity as Dean and Director of Indiana University School of Medicine; The Board of Trustees of Indiana University; et al., a 14-page opinion, Judge Crone writes:

Peter F. Amaya was dismissed from Indiana University School of Medicine for failure to maintain acceptable professional standards by allegedly cheating on an examination. He filed a lawsuit against D. Craig Brater, M.D., in his capacity as dean and director of Indiana University School of Medicine, the Board of Trustees of Indiana University, members of the Student Promotions Committee, Patricia Treadwell, M.D., chair of the Student Promotions Committee, Joseph A. DiMicco, Ph.D., Kathleen A. Prag, M.D., and Klaus A. Hilgarth, M.D. (hereinafter collectively referred to as “IUSM”), alleging multiple claims including breach of contract and breach of good faith and fair dealing. IUSM moved for summary judgment on those claims. Following a hearing, the trial court granted summary judgment in favor of IUSM. Amaya now appeals. The sole issue raised on appeal is whether the trial court erred when it entered summary judgment in favor of IUSM. Finding that no genuine issue of material fact remains on these claims and that judgment as a matter of law is appropriate, we affirm.
In Matthew Banks Ashworth v. Kathryn (Ashworth) Ehrgott , a 23-page opinion, Judge Riley concludes:
Based upon the foregoing, we conclude that the trial court did not abuse its discretion in calculating Father’s 2012 and subsequent weekly child support obligation. We conclude that the trial court abused its discretion by using an irregular income factor based upon the parties’ prior financial declarations to determine Father’s additional child support obligation for his 2012 and subsequent irregular income. However, the trial court did not abuse its discretion in its use of an income allocation ratio to determine the amount of additional child support. Further, we hold that the trial court did not abuse its discretion in calculating Father’s child support obligation based on his irregular income for 2011 and 2010. We reverse and remand with instructions to 1) apply the income allocation factor of .1549 to Father’s 2012 and future bonuses; and 2) correct a scrivener’s error in the April 24, 2010 Income Withholding Order and calculate the resulting credit owed to Father and its repayment method. Affirmed in part, reversed in part, and remanded.
In Christopher Smith v. State of Indiana , a 34-page, 2-1 opinion with a dissent beginning on p. 29, Judge Brown writes [emphasis added by ILB]:
An allegation that an individual has engaged in child abuse is a serious claim, and a reasonable investigation made in good faith of such an allegation prior to making a report is not improper and does not deprive the person required to make such a report of statutory immunity. See Phillips v. Behnke, 531 N.W.2d 619, 623 (Wis. Ct. App. 1995) (“An allegation that an individual has engaged in improper sexual behavior with a child is extremely damaging both to the individual’s reputation and career. Accordingly, investigating the reasonableness of one’s belief that a teacher has engaged in sexual misconduct prior to making a report is proper and does not deprive the individual of immunity.”). * * *

Based upon the evidence presented at Smith’s trial, and keeping in mind that we must strictly construe penal statutes against the State, we conclude that under these specific circumstances there is insufficient evidence of probative value from which the trier of fact could reasonably have found beyond a reasonable doubt that Smith committed the offense charged. Accordingly, we reverse and vacate Smith’s conviction for failure to immediately report child abuse as a class B misdemeanor. * * *

Conclusion. For the foregoing reasons, we reverse with instructions to vacate Smith’s conviction for failing to immediately report child abuse or neglect as a class B misdemeanor under Ind. Code § 31-33-22-1.

BAILEY, J., concurs.
VAIDIK, J., dissents with separate opinion. I respectfully dissent from the majority’s decision to vacate former Muncie Central High School principal Christopher Smith’s conviction for failing to report child abuse. I would find that Smith had reason to believe that sixteen-year-old G.G. was a victim of child abuse and failed to immediately report the abuse. * * *

On appeal, Smith contends that he had no reason to believe that G.G. was a victim of child abuse such that he was required to make a report. Smith also argues that, nonetheless, he did immediately report the abuse by virtue of Samuels’ 12:40 or 12:45 p.m. call to the YOC. The majority accepts Smith’s arguments. I believe that doing so disregards the evidence most favorable to the verdict and undermines Indiana’s child-abuse reporting statute. Further, the majority cites with approval case law from other jurisdictions that permits verification of a child’s allegations of abuse before making a report. I believe such a verification process is contrary to statute and, if permitted, may have the highly undesirable result of suppressing or deterring reports of abuse. * * *

Smith argues that he did not have reason to believe that G.G. was a victim of child abuse. His primary argument in support of this claim is that he consulted many school officials about G.G.’s allegations, none of whom believed that G.G.’s allegations constituted child abuse because two children were involved. The majority seems to accept this argument, noting school employees’ testimony to this effect and the fact that Muncie Central’s guidelines and policies did not define child abuse, though “a pamphlet” referred to “sexual abuse” as “any sexual act between an adult and a child.” But this ignores the common-sense conclusion that when a child is the victim of abuse—regardless of the age of the perpetrator—the act is abuse of a child. Moreover, one expressly stated goal of the reporting statute is the protection of children. * * * The evidence most favorable to the verdict shows that a child, G.G., alleged that she had been raped. I would find that Smith had reason to believe G.G. was a victim of child abuse.

I would also find that Smith failed to immediately report the abuse. * * *

This case exemplifies the dangers of sanctioning a verification process. Here, school officials thought G.G. might be lying about the attack and wanted to protect the reputation of her attacker. Undoubtedly school officials also had an interest in protecting Muncie Central’s reputation as a safe environment, not an environment where rape occurs during school hours. The internal investigation was hardly in the hands of unbiased and impartial investigators.

By requiring that reports of abuse be made to DCS or the proper authorities, the reporting statute aims to prevent a situation in which individuals familiar with an alleged victim or abuser, or otherwise invested in the situation, conduct an informal investigation shaped by bias or improper motives. The consequences of a tainted investigation are high—evidence may be lost with the passage of time, allegations may be suppressed, and victims may be reluctant to report abuse. For all of the above reasons, I respectfully dissent and would affirm the jury’s verdict.

NFP civil opinions today (2):

Michael Ramos v. Robertson's Apartments (NFP)

Kindred Nursing Centers, LTD Partnership d/b/a Wedgewood Healthcare v. Linda Davis (NFP)

NFP criminal opinions today (10):

Jill R. Kincer v. State of Indiana (NFP)

David Arndell v. State of Indiana (NFP)

John D. Rogers v. State of Indiana (NFP)

Kerry L. Williams v. State of Indiana (NFP)

Demetrius Walker v. State of Indiana (NFP)

James A. Crouch v. State of Indiana (NFP)

Monique Rowe v. State of Indiana (NFP)

Fernando Seba v. State of Indiana (NFP)

Noah Shane Warren v. State of Indiana (NFP)

Hobert Pittman v. State of Indiana (NFP)

Posted by Marcia Oddi on January 30, 2013 01:36 PM
Posted to Ind. App.Ct. Decisions