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Thursday, July 28, 2016

Ind. Decisions - Court of Appeals issues 3 opinion(s) today (and 10 NFP memorandum decision(s))

For publication opinions today (3):

In Jessica Robertson v. Brian Robertson, a 14-page opinion, Judge Pyle writes:

In this child custody case, Jessica Robertson (“Mother”) argues that the trial court abused its discretion in modifying custody of the parties’ two young children in favor of Brian Robertson (“Father”). On cross-appeal, Father argues that this Court does not have jurisdiction over the matter because Mother failed to timely file her Notice of Appeal. In light of Mother’s attempt to perfect a timely appeal and the constitutional dimensions of the parent-child relationship, we review Mother’s appeal on the merits. Further, because the evidence supports the trial court’s modification of custody in favor of Father, we find no abuse of discretion and affirm.
In In the Matter of: S.K., R.K., M.K., and A.K., Ja.K. (Father) and Je. K. (Mother) v. Ind. Dept. of Child Services , an 11-page opinion, Chief Judge Vaidik writes:
Ja.K. (Father) and Je.K. (Mother) appeal the juvenile court’s decision that their four children are children in need of services (CHINS). The sole issue for our review is whether the evidence supports the juvenile court’s judgment that the children were CHINS pursuant to Indiana Code section 31-34-1-1. Concluding that the evidence does not show the children were endangered by the actions or inactions of Mother or Father, we reverse the CHINS adjudication. * * *

To be a CHINS, a child must be seriously impaired or endangered “as a result of the inability, refusal, or neglect of the child’s parent” to provide necessary care. Ind. Code § 31-34-1-1 (emphasis added). Children cannot become CHINS by the mere happenstance of a family’s economic misfortune; the statute requires an action or failure to act by the parent that leads to serious endangerment of the children as a result of the lack of necessary care. In re S.M., 45 N.E.3d at 1256 (“The mere fact of an unemployed parent does not make a CHINS. The mere fact of a family on food stamps does not make a CHINS. Even the mere fact of a family living in a shelter while seeking stable housing does not make a CHINS.”). In this case, the children were not endangered by the acts or omissions of the parents. In fact, the parents took deliberate actions to avoid placing the children in the endangering condition of homelessness. We therefore conclude that the juvenile court’s determination that the children are CHINS was clearly erroneous. Reversed.

In Anthony J. Wampler v. State of Indiana , a 17-page, 2-1 opinion, Judge Barnes writes:
Anthony J. Wampler appeals his sentence for two counts of Class B felony burglary and his status as an habitual offender. We affirm.

Wampler raises one issue, which we restate as whether his sentence is inappropriate in light of the nature of the offenses and the character of the offender. * * *

We acknowledge Wampler’s mental health problems. However, given the disturbing nature of Wampler’s offenses and his criminal history, we cannot say that his sentence is inappropriate. * * *

Vaidik, C.J., concurs.
Mathias, J., dissents with opinion. [which begins, at p. 8] Because I believe that Wampler’s obvious and serious mental illness should have resulted in his civil commitment, not his incarceration, I respectfully dissent. * * *

[ILB: p. 10 of the opinion is a page from "Wampler’s notebook (that) contains other such deranged, incoherent diagrams demonstrating the depth of his mental health illness."]

Wampler was seriously mentally ill for years before this eerie and bizarre burglary. In all likelihood, he was also so mentally ill at the time of the crime that he could not have formed the requisite scienter so as to be criminally responsible for his behavior. Had his psychiatric examination been directed to his mental health at the time of the crime, rather than to his ability to assist his counsel at trial, he could have been, and should have been, civilly committed to a state mental health institution, rather than charged with a crime. This is a clear case of punishing someone for mental illness rather than having any interest in humanely recognizing the difference between mental illness and criminal behavior. We Hoosiers are better than that, and indeed, I believe that Article 1, Sections 15, 16 and 18 of the Constitution of Indiana expect us to be better than that. * * *

Under these facts and circumstances, I cannot agree that a thirty-three-year sentence is appropriate given the nature of the offense—a minor burglary—and the character of the offender—a man with obvious, serious mental health issues. I therefore respectfully dissent from the majority opinion. Because Wampler challenged only his sentence as inappropriate, I would find it to be so and reverse Wampler’s sentence and remand with instructions to impose the minimum sentence of six years with a ten-year habitual offender enhancement.

NFP civil decisions today (1):

In the Term. of the Parent-Child Relationship of: K.K., N.K., and J.K., Minor Children, and D.K., Mother v. Ind. Dept. of Child Services (mem. dec.)

NFP criminal decisions today (9):

Michael Steusloff v. State of Indiana (mem. dec.)

James F. Noel v. State of Indiana (mem. dec.)

Carl G. Johnson, Jr. v. State of Indiana (mem. dec.)

French Tibbs v. State of Indiana (mem. dec.)

Lana Anderson v. State of Indiana (mem. dec.)

Daniel L. Riddle v. State of Indiana (mem. dec.)

Lonnie A. Bland v. State of Indiana (mem. dec.)

William Mills, II v. State of Indiana (mem. dec.)

Elgin Fidell v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on July 28, 2016 11:24 AM
Posted to Ind. App.Ct. Decisions