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Tuesday, October 29, 2013

Ind. Decisions - Court of Appeals issues 6 today (and 4 NFP)

For publication opinions today (6):

In In the Matter of the Termination of the Parent-Child Rel. of: S.B., Ay.B., A.B. & K.G. (Minor Children), and K.G. (Mother) v. Marion County Dept. of Child Services, Child Advocates, Inc., a 13-page opinion, Judge Vaidik writes:

In 2011, Magistrate Julianne Cartmel held an evidentiary hearing to determine whether K.G.’s (“Mother”) parental rights to her four children should be terminated. Mother did not attend the hearing but she was represented by counsel. Magistrate Cartmel resigned after the hearing without reporting factual findings or conclusions to the juvenile court. The case was transferred to Magistrate Larry Bradley. Magistrate Bradley reviewed the record and reported factual findings and conclusions to Judge Marilyn Moores, who approved Magistrate Bradley’s findings and conclusions and issued an order terminating Mother’s parental rights.

This case is one of a number of termination cases arising from Magistrate Cartmel’s resignation to reach this Court. The appellants challenge Magistrate Bradley’s authority to report factual findings and conclusions without having presided over the underlying evidentiary hearing. In this specific case, Mother argues that the order terminating her parental rights violated Indiana law and her due-process rights because it was based on the findings of a magistrate who did not preside over the evidentiary hearing.

We conclude that the termination order does not violate Indiana law because the relevant statutory section does not prohibit Magistrate Bradley’s actions. We also conclude that the order does not violate Mother’s due-process rights because the underlying evidence was undisputed and did not require Magistrate Bradley to make any credibility determinations. Specifically, there was no dispute that Mother had not successfully completed services and had not secured stable housing or employment. There was also no dispute that Mother had stopped visiting the children and communicating with caseworkers. We therefore find that Magistrate Bradley did not err by reviewing the record and reporting findings and conclusions to Judge Moores without holding a new evidentiary hearing. We affirm the termination of Mother’s parental rights. * * *

FRIEDLANDER, J., concurs.
BAKER, J., concurs in result with separate opinion. [beginning on p. 9]In

In In the Matter of the Termination of the Parent-Child Rel. of I.P., Minor Child and His Father, T.P.: T.P. (Father) v. Child Advocates, Inc., and Indiana Dept. of Child Services, a 16-page opinion, Judge Baker writes:
This case is one of several termination cases stemming from Magistrate Cartmel’s resignation to reach this court. Magistrate Cartmel resigned after the hearing without reporting factual findings or conclusions to the juvenile court. As a result, the case was transferred to Magistrate Larry Bradley. Magistrate Bradley reviewed the record and reported factual findings and conclusions to Judge Marilyn Moores, who approved Magistrate Bradley’s findings and conclusions and issued an order terminating Mother’s parental rights.

In this case, T.P. (Father) challenges the order terminating his parental rights with regard to his minor son, I.P. Father was incarcerated on both days that the termination hearing took place, but he participated telephonically and was represented by counsel. Although Father does not challenge the substance of the order terminating his parental rights, he maintains that the judgment violated his right to due process and the provisions of Indiana Trial Rule 63(A) because Magistrate Cartmel, the magistrate who actually heard the evidence, did not issue the recommended order.

We conclude that Magistrate Bradley’s subsequent recommended order terminating Father’s parental rights did not violate the trial rules or Father’s right to due process. Thus, we decline to set aside the order terminating Father’s parental rights and affirm the judgment of the trial court. * * *

FRIEDLANDER, J., concurs.
VAIDIK, J., concurs in result with an opinion. [beginning on p. 12]

In Constantinos P. Angelopoulos v. Theodore P. Angelopoulos, Neptunia Incorporated, Transmar Corporation, Didiac Establishment, Beta Steel Corporation, and Top Gun Investment Corporation, II, a 22-page opinion, Judge Mathias concludes:
The prior rulings of the Greek courts conclusively establish that Panayiotis gave
ownership of Beta Steel to Theodore when Panayiotis was still alive, and Constantinos cannot now relitigate this issue in Indiana courts. As all of Constantinos’s legal claims are based on his claim of a right to a portion of Beta Steel as an heir to Panayiotis’s estate, all of his claims were properly dismissed. The trial court, however, erred in conflating the issue of confidentiality for purposes of discovery with the issue of restricting public access to materials filed in court, and we therefore reverse the trial court’s order regarding public access to Theodore’s depositions and remand with instructions that the trial court hold a hearing at which Theodore must prove by clear and convincing evidence that portions of his depositions should not be open to public access pursuant to Indiana Administrative Rule 9. [ILB emphasis]
In Shawn Telligman v. Review Board of the Indiana Department of Workforce Development and Indiana Department of Workforce Development Unemployment Insurance Claims Adjudication, a 17-page opinion, Judge Brown writes:
Shawn Telligman appeals a decision by the Review Board of the Indiana Department of Workforce Development (the “Board”) in favor of Indiana Department of Workforce Development Unemployment Insurance Claims Adjudication (“IDWD”) on IDWD’s claim that Telligman failed to disclose or falsified information to IDWD in order to receive unemployment benefits, that he received certain benefits to which he was not entitled, and that he is liable to repay IDWD the benefit overpayment amounts together with applicable penalties and interest. Telligman raises two issues which we restate as whether the Board erred in finding that he knowingly failed to disclose or falsified any fact that would disqualify him from receiving benefits, reduce his benefits, or render him ineligible for benefits or extended benefits, and whether the Board abused its discretion in denying his request to submit additional evidence. We affirm. * * *

Based upon the record, we conclude that the ALJ and Board did not err in finding that Telligman knowingly failed to disclose or falsified facts that would disqualify him from receiving benefits, reduce his benefits, or render him ineligible for benefits or extended benefits, in finding him liable to repay IDWD the benefit overpayment amounts together with applicable penalties and interest, and that the Board did not abuse its discretion in denying his request to submit additional evidence. For the foregoing reasons, we affirm the decision of the Board.

In Jason E. Morales v. State of Indiana, a 3-page ruling with a pro se petitioner on a petition for rehearing, Judge Baker concludes:
It appears that Morales really wanted a declaratory judgment that the Program’s criteria excluded too many offenders, particularly sex offenders. There are procedures to seek a declaratory judgment, but Morales did not pursue them.

Morales’s petition for rehearing is granted for the limited purpose of clarification as to the specific issue discussed above. Otherwise, we stand by our previous opinion.

MATHIAS, J., concurs.
MAY, J., would deny the petition for rehearing.

In Gerald Clemons v. State of Indiana , a 10-page opinion, Judge Brown writes:
Gerald Clemons appeals his conviction for possession of cocaine. Clemons raises one issue, which we restate as whether the evidence is sufficient to sustain his conviction. We affirm.
NFP civil opinions today (1):

Rebecca Waggoner v. Robert Waggoner (NFP)

NFP criminal opinions today (3):

Michael Wayne Norred v. State of Indiana (NFP)

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

Chad Malone v. State of Indiana (NFP)

Posted by Marcia Oddi on October 29, 2013 01:12 PM
Posted to Ind. App.Ct. Decisions