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Monday, March 16, 2015

Ind. Decisions - Court of Appeals issues 3 opinion(s) today (and 2 NFP memorandum decisions)

For publication opinions today (3):

In Redevelopment Commission of the Town of Munster, Indiana v. Indiana State Board of Accounts and Paul D. Joyce, State Examiner of State Board of Accounts, a 14-page opinion, Judge Mathias writes:

The Munster Redevelopment Commission (“the Commission”) appeals the Lake Circuit Court’s order entering summary judgment in favor of the Indiana State Board of Accounts (“the Board”) in which the trial court determined that Indiana Code section 36-7-14-28 does not permit the Commission to use tax incremental financing funds to pay for the ongoing maintenance of redeveloped properties. * * *

For all of these reasons, we conclude that the Commission had standing to bring its declaratory judgment. We further conclude that the trial court did not err in determining that Indiana statute does not permit the use of TIF funds for the continued maintenance of completed redevelopment projects.

In In the Matter of the Termination of the Parent-Child Relationship of: D.P. and D.P.E. and J.P. (Mother) v. Ind. Dept. of Child Services, a 13-page opinion, Judge Bailey writes:
J.P. (“Mother”) appeals the trial court’s order granting the petition of the Department of Child Services (“DCS”) to terminate Mother’s parental rights as to D.P. and D.P.E. (“the Children”). Mother raises two issues for our review, which we reframe as a single issue: whether the trial court deprived Mother of due process of law when, in Mother’s absence and without representation of counsel, it converted the nature of the proceedings and then terminated her parental rights. Finding this a deprivation of due process guarantees, we reverse. * * *

And while DCS regards Mother’s failure to seek counsel as a matter of little moment—or even as waiver—under the totality of the circumstances, we cannot agree. As in both A.B. and Thompson, Mother was denied a meaningful opportunity for cross-examination, presentation of evidence, and indeed—unlike both A.B. and Thompson—representation of counsel. This is particularly worrisome given DCS’s knowledge of Mother’s apparently significant learning and cognitive problems, and the placement of the Children in a stable foster home where the foster parent intended to adopt the children.

The magnitude of Mother’s parental rights and the risk of error in the State’s procedural approach in this case outweigh the State’s interests in its chosen procedural path. See C.G., 954 N.E.2d at 917. Both constitutional and statutory guarantees were transgressed. Accordingly, we cannot conclude that Mother’s due process rights received adequate protection in this matter. We therefore reverse the trial court’s order terminating Mother’s parental rights, and remand for further proceedings.

In Johnnie M. Trout Jr. v. State of Indiana, a 9-page opinion, Chef Judge Vaidik writes:
According to Indiana Code section 35-38-9-3(b)(3), a person is ineligible for mandatory expungement of their criminal records if they are “convicted of a felony that resulted in bodily injury to another person.” Johnnie M. Trout Jr. filed a petition to expunge records of his Class D felony convictions for criminal recklessness with a deadly weapon and pointing a firearm, and the trial court denied his petition. The trial court reasoned that although Trout was not convicted of a felony that resulted in bodily injury to another person, it could not “turn a blind eye” to the fact that Trout was acquitted of attempted murder for shooting and injuring someone during the same incident.

According to the plain language of the statute, the felonies that Trout was convicted of must have resulted in bodily injury to another person. However, the record shows that neither of his convictions resulted in bodily injury to another person. Therefore, these convictions do not disqualify Trout from mandatory expungement according to Section 35-38-9-3(b)(3). We therefore reverse and remand this case.

NFP civil decisions today (1):

In the Matter of the Adoption of B.R. (Minor Child) R.R. v. D.S. and V.S. (mem. dec.)

NFP criminal decisions today (1):

Dennis Bretzlaff v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on March 16, 2015 10:43 AM
Posted to Ind. App.Ct. Decisions