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Tuesday, April 28, 2015

Ind. Decisions - Court of Appeals issues 3 opinion(s) today (and 9 NFP memorandum decisions)

For publication opinions today (3):

In Dawn Warrick and Nathan Parrish v. Steve and Mitzi Stewart, a 15-page opinion, Judge Bailey writes:

Steve Stewart (“Stewart”) brought a negligence claim against Dawn Warrick (“Dawn”) and Nathan Parish (“Nathan”) (collectively, “the Warricks”) after Stewart’s motorcycle collided with the Warricks’ loose dog, causing Stewart to suffer personal injury. A jury found that Stewart was seventy percent at fault and accordingly returned a verdict for the Warricks. After Stewart filed a motion to correct error, the trial court granted the motion, set aside the jury’s verdict, and ordered a new jury trial. We affirm.
In In The Matter of The Adoption of: K.M.; B.M. v. J.R. and M.R. , a 10-page opinion, Judge Friedlander writes:
Mother acknowledges that she received notice of Stepmother’s adoption petition and that she was aware of the requirement that she must file an objection thereto within thirty days of being given such notice. See I.C. § 31-19- 10-1. Mother further admits that she did not file an objection within thirty days. I.C. § 31-19-9-18 provides, in pertinent part, that “[t]he consent of a person who is served with notice under IC 31-19-4.5 to adoption is irrevocably implied without further court action if the person . . . fails to file a motion to contest the adoption as required under IC 31-19-10 not later than thirty (30) days after service of notice under IC 31-19-4.5.”

Mother argues that I.C. § 31-19-9-18 is unconstitutional in that her consent to the adoption was irrevocably implied simply because she did not file an motion to contest the adoption within the statutory time limit and not as the result of a hearing at which she was given an opportunity to be heard. Mother argues that a hearing should be held in all adoption cases. Mother’s suggestion is really a request to rewrite legislation. There is nothing in the statutory language that requires a predicate hearing prior to a person’s consent being irrevocably implied. In fact, the language is clear that consent is irrevocably implied “without further court action.” I.C. § 31-19-9-18. We will not read a requirement for a hearing into the statute. See McGee v. McGee, 998 N.E.2d 270 (Ind. Ct. App. 2013).

The statutory framework provides that notice of an adoption petition shall be given and that a person receiving such notice has thirty days to file a motion to contest. Here, had Mother filed a motion to contest the adoption within the appropriate time frame, she would have been afforded the opportunity to voice her objection to Stepmother’s petition to adopt the Child. It was Mother’s failure to timely file a motion, not State action, that foreclosed her opportunity to oppose Stepmother’s petition for adoption. The statutory scheme afforded Mother procedural due process.[2]

Mother argues that she engaged in sufficient communication with the judicial system such that we should not strictly apply the time limit set out in I.C. § 31- 19-9-18. In other words, Mother argues that her efforts to communicate her objection to Stepmother’s petition for adoption should allow for equitable deviation from the statutory time limit and we should therefore set aside her irrevocable implied consent. * * *

Having determined that I.C. § 31-19-9-18 is a nonclaim statute, Mother is not entitled to equitable deviation from the thirty-day time limit and courts are not permitted to utilize equity to rectify an injustice even if warranted by the situation. Mother did not file a motion to contest Stepmother’s petition for adoption within thirty days after being served with notice thereof and consequently, Mother’s consent to the adoption was irrevocably implied. Mother was not thereafter permitted to contest the adoption or the validity of her consent and she was not entitled to equitable tolling. The trial court did not err in granting Stepmother’s petition for adoption of the Child. Judgment affirmed.
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[2] We note that the Appellees heavily rely upon an unpublished memorandum decision in support of their arguments. This is contrary to Indiana Appellate Rule 65(D), which provides: “[A] memorandum decision shall not be regarded as precedent and shall not be cited to any court except by the parties to the case to establish res judicata, collateral estoppel, or law of the case."

In Zachary L. Lewis v. State of Indiana , a 9-page opinion, Judge Najam writes:
Zachery L. Lewis appeals his sentence following his convictions for two counts of battery, one as a Level 6 felony, and one as a Class A misdemeanor. Lewis presents three issues for our review, which we consolidate and restate as the following two issues:
1. Whether the two batteries constitute an episode of criminal conduct under Indiana Code Section 35-50-1-2(c).
2. Whether the trial court abused its discretion when it sentenced him.
We affirm.
NFP civil decisions today (3):

In Re Adoption of K.P. et al., D.M. v. C.P. (mem. dec.)

In re the Guardianship of M.M. et al; Melissa Miller v. FaithAnn Breden and Richard Breden (mem. dec.)

In the Matter of the Termination of the Parent-Child Relationship of M.F., Mother, and L.T.F., Child, M.F., v. Indiana Department of Child Services (mem. dec.)

NFP criminal decisions today (6):

L.C. v. State of Indiana (mem. dec.)

Chad Byrd v. State of Indiana (mem. dec.)

Jennifer L. Buchanan v. State of Indiana (mem. dec.)

Marlon M. Banks v. State of Indiana (mem. dec)

Jonathan G. McPherson v. State of Indiana (mem. dec.)

Terrence Jamual Douglass v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on April 28, 2015 01:17 PM
Posted to Ind. App.Ct. Decisions