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Friday, May 24, 2013

Ind. Decisions - Court of Appeals issues 5 today (and 13 NFP)

For publication opinions today (5):

In Angela Duckworth v. Christopher R. Duckworth, a 5-page opinion, Judge May writes:

Angela Duckworth (Mother) appeals the order modifying custody and child support in favor of Christopher Duckworth (Father). Mother argues the trial court abused its discretion when it determined her child support obligation based on the income Father assigned to her on his child support worksheet. As Mother did not submit a child support worksheet or other evidence of her income, we affirm. * * *

Mother and Father were divorced in July 2010, and shared custody of their children, C.D. and I.D. On February 6, 2012, Father filed a Verified Petition for Modification of Decree asking the trial court to grant him sole custody of the children and require Mother to pay child support. After hearing evidence, the trial court granted Father sole custody of Children, subject to Mother’s supervised parenting time, and ordered Mother to pay Father $231.00 per week in child support. * * *

The trial court assigned an income level to Mother that was supported by the only evidence in the record of Mother’s income -- the figure assigned by Father on his worksheet. If Mother disagreed with that amount, the time to challenge its accuracy was at trial, not on appeal. We decline to reverse because of an alleged error in the income figure the trial court used to determine her child support obligation. See Dye v. Young, 655 N.E.2d 549, 550 (Ind. Ct. App. 1995) (trial court follows Indiana Child Support Guidelines when it orders child support based on income figure listed on Child Support Worksheet). Accordingly, we affirm.

Rebirth Christian Academy Daycare, Inc. v. Indiana Family & Social Services Administration

In In the Matter of the Term. of the Parent-Child Rel. of J.C., Et.C. & El.C.; S.C. v. Indiana Department of Child Services , a 17-page opinion, Judge May writes:

S.C. (Mother) appeals the involuntary termination of her parental rights to J.C., Et.C., and El.C., and presents three issues: (1) Whether the Department of Child Services (DCS) presented sufficient evidence there was a reasonable probability that the conditions that resulted in the children’s removal would not be remedied; (2) Whether DCS presented sufficient evidence involuntary termination of Mother’s parental rights was in the children’s best interests; and (3) Whether DCS presented sufficient evidence there existed a satisfactory plan for the care and treatment of the children. We affirm. * * *

DCS presented sufficient evidence the conditions that resulted in the children’s removal were not likely to be remedied, and the findings support the court’s conclusion termination was in the best interests of the children. There was a suitable plan in place for the care and treatment of the children. Accordingly, we affirm the termination of Mother’s parental rights.

In In Re The Paternity of J.T. and I.T., Minor Children; and In Re The Support of C.R.T., Minor Child; R.A.P., Mother v. C.D.T., Father, a 5-page opinion, Judge May writes:
R.P. (Mother) appeals the order granting sole legal and physical custody of J.T., I.T., and Co.T. to C.T. (Father). Finding no error, we affirm. * * *

Father presented evidence Mother routinely denied him the parenting time to which he was entitled. This establishes a substantial change in the interrelationship of the parties, which permits a modification in custody. See In re Marriage of Cain, 540 N.E.2d 77 (Ind. Ct. App. 1989) (modification of custody affirmed based on breakdown of communication and cooperation between the parties regarding parenting time). Accordingly, we affirm the juvenile court’s decision to place the children with Father.

In Paul Hassfurther v. State of Indiana, an 11-page opinion, Judge Baker writes:
In this case, the appellant-defendant Paul Hassfurther appeals the trial court’s denial of his petition for judicial review that involved his refusal to take a chemical test for intoxication. Hassfurther argues that the arresting officer lacked probable cause to believe that he was operating a vehicle while intoxicated. Hassfurther further maintains that the evidence was insufficient to support the trial court’s determination that he knowingly refused to take the chemical test because he was not properly advised of the consequences of his refusal to take such a test.

The evidence established that a citizen informant called 911, identified herself, and reported that she had followed a suspected drunk driver, who was later identified as Hassfurther, operating a Toyota truck with the logo of a fox on the back of it, to a local gas station. A police officer approached Hassfurther in the store and saw him leaning on the counter. Hassfurther smelled strongly of alcohol, his speech was slurred, and his eyes were red. This evidence, coupled with Hassfurther’s admission to the police officer that he had been drinking and was the driver of the Toyota, established probable cause that Hassfurther had been operating the vehicle while intoxicated.

The evidence was also sufficient to establish that Hassfurther knowingly refused to take a chemical test for intoxication when the police officer testified that he advised Hassfurther under the implied consent law that a two-year driver’s license suspension would result in light of a prior conviction for driving while intoxicated if he refused to take a chemical test for intoxication. Thus, we conclude that the trial court properly denied Hassfurther’s petition for judicial review. * * *

In this case, because Hassfurther has a prior conviction for operating a vehicle while intoxicated, IC 9-30-6-9(b) makes it clear that Hassfurther’s license would be suspended for two years rather than one. That said, while Hassfurther maintains that his refusal to take the breath test was not knowing because the advisements on the implied consent card contained no information about a two-year suspension in light of a prior conviction, Lieutenant Gaines testified at the hearing that he did, in fact, advise Hassfurther of that consequence. Thus, the evidence when viewed in a light most favorable to the judgment, demonstrates that Hassfurther has failed to show that he was not adequately informed about the license suspension if he refused a chemical test. As a result, the trial court properly denied Hassfurther’s petition for judicial review.
[3] As an aside, we note that because the evidence established that Lieutenant Gaines advised Hassfurther of a two-year suspension if he refused to take the chemical test, we need not address Hassfurther’s contention that he was misled or misinformed about the length of his suspension even though the two-year provision was not set forth on the implied consent card. Moreover, the rule in Huber suggests only that a defendant must be informed of the consequence that a refusal will result in a suspension. 540 N.E.2d at 142. And there is no express statutory requirement that law enforcement officials must inform a defendant that a refusal will result in a two-year suspension if he or she has a prior conviction for operating a vehicle while intoxicated. I.C. § 9-30-6-9. Nonetheless, these circumstances suggest that it may well be the better practice for police departments to include the two-year suspension provision on the implied consent card.

NFP civil opinions today (4):

Brant Construction, LLC; and Dune Harbor, LLC v. Circle Electric, Inc.; DeBoer Egolf Corp.; Auditor, Porter County, Indiana; First National Bank of Illinois; and Wachovia Financial Srvcs., Inc. (NFP)

Henry (Hank) Eilts, Hank's Construction, and The G. Jackie Eilts Credit Shelter Trust v. Jeremy Wayman (NFP)

In Re: The Petition for the Adoption of: R.J. and S.J. (Minor Children), R.J. and L.L. v. A.G. and B.G. (NFP)

Term. of the Parent-Child Rel. of: J.N. (Minor Child), and JE.N. (Father) v. The Indiana Dept. of Child Services (NFP)

NFP criminal opinions today (9):

Leo Dent, Jr. v. State of Indiana (NFP)

Dennis Meyer v. State of Indiana (NFP)

K.L.W. v. State of Indiana (NFP)

Leona Peavler v. State of Indiana (NFP)

Jeremy Roberts v. State of Indiana (NFP)

Randall Dorsett v. State of Indiana (NFP)

James M. Durkin, Sr. v. State of Indiana (NFP)

Tony Monks v. State of Indiana (NFP)

A.R. v. State of Indiana (NFP)

Posted by Marcia Oddi on May 24, 2013 11:02 AM
Posted to Ind. App.Ct. Decisions