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Thursday, September 15, 2016

Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 6 NFP memorandum decision(s))

For publication opinions today (2):

In D.B. and V.G. v. Indiana Department of Child Services , a 19-page opinion, Judge Altice writes:

D.B. (Father) and V.G. (Mother) appeal following the involuntary termination of their parental rights. On appeal, they argue that the termination of their rights was improper because the termination petition was prematurely filed. Additionally, Father argues that the Department of Child Services (DCS) presented insufficient evidence to support the termination of his parental rights. We affirm.
In Mindy M. Cline v. State of Indiana, a 9-page, 2-1 opinion, Judge Bailey writes:
Mindy Cline (“Cline”) appeals the denial of her petition for expungement, presenting the sole issue of whether the trial court abused its discretion. We reverse and remand. * * *

Cline sought relief pursuant to Indiana Code Section 35-3-9-4, applicable to qualified felonies other than Class D or Level 6 felonies. Subsection (e) of that statute provides that the trial court may order conviction records expunged if the court finds by a preponderance of the evidence that: (1) the requisite period has elapsed (eight years from the date of conviction or three years from the completion of the sentence, or as shortened by prosecutorial agreement); (2) no charges are pending against the person; (3) applicable fines, costs, and restitution have been paid; and (4) the person has not been convicted of a crime within the previous eight years (or a shorter period with prosecutorial agreement) (emphasis added). * * *

[O]ur Legislature has provided a second chance for individuals who have in the distant past committed drug-related crimes. Although the trial court is granted discretion, this does not extend to disregard of remedial measures enacted by our lawmakers. As previously observed, such statutes should be liberally construed to advance the remedy for which they were enacted. Brown, 947 N.E.2d at 490. We conclude that the trial court abused its discretion in denying Cline’s petition for expungement. Reversed and remanded.

Riley, J., concurs.
Barnes, J., dissents with separate opinion. [That begins, at p. 9] I respectfully dissent. Although the commentary from the trial court here was not exactly artful and was unnecessarily harsh, I believe the court was within its discretionary parameters in rejecting Cline’s expungement request, with one possible correction. [ILB: re the number of convictions] * * *

As the majority recognizes, the expungement statute for felonies above Class D or Level 6 provides only that a trial court “may” expunge a conviction upon proof of the statutory requirements; it does not mandate expungement. See Ind. Code § 35-38-9-4(e). Thus, whether to grant Cline’s expungement petition was within the trial court’s discretion. See Key, 48 N.E.3d at 337. The statute is silent regarding the factors a trial court may consider in deciding how to exercise its discretion when ruling on a non-mandatory expungement petition. I see nothing wrong in the trial court here having considered the seriousness of the offenses and the time period since Cline finished her probationary term when ruling on her petition. Additionally, the trial court had face-to-face interaction with Cline that we cannot have. To the extent the majority emphasizes reasons why the expungement petition should have been granted, I believe it is reweighing the evidence and substituting its judgment for the trial court’s. Even if the expungement could have been granted on these facts, I do not believe the facts compelled granting it.

NFP civil decisions today (3):

James Wright v. Natasha G. Wright (mem. dec.)

In the Matter of: K.S., I.S., D.S., S.S., M.S., and G.S, (Minor Children) Children in Need of Services and T.S. (Mother) and J.S. (Father) v. Ind. Dept. of Child Services (mem. dec.)

In In re: The Grandparent Visitation of Jean Allen: Andrew Lemke and Satarah Lemke v. Jean Allen (mem. dec.), a 17-page opinion, Judge Bradford writes:

Appellant-Respondent Andrew Lemke (“Father”) appeals the trial court’s order granting Appellee-Petitioner Jean Allen’s (“Grandmother”) request for grandparent visitation of Father’s two minor children. On appeal, Father contends that the trial court erred in granting Grandmother’s request for grandparent visitation. Father also contends that the trial court abused its discretion in ordering that he pay certain attorney’s fees. Upon review, we conclude that the trial court did not err in granting Grandmother’s request for grandparent visitation or abuse its discretion in awarding Mother’s request for attorney’s fees. However, we are concerned that the amount of visitation ordered exceeds the amount of visitation contemplated by the Grandparent Visitation Act. As such, we affirm in part, reverse in part, and remand to the trial court with instructions. * * *

Again, the Indiana Supreme Court has held that the “‘Grandparent Visitation Act contemplates only occasional, temporary visitation that does not substantially infringe on a parent’s fundamental right to control the upbringing, education, and religious training of their children.’” In re Visitation of M.L.B., 983 N.E.2d at 586 (quoting K.I., 903 N.E.2d at 462). In this case, it seems that the amount of visitation ordered by the trial court includes more than merely occasional visitation. The trial court’s order recognizes that Father is a noncustodial parent who has been awarded parenting time with the Children. While the trial court’s order does not state the extent of Father’s awarded parenting time, it seems likely that the amount of visitation ordered would significantly infringe upon Father’s parenting time with the Children. As such, we conclude that the amount of awarded visitation should be reconsidered. Thus, on remand, we instruct the trial court to craft a visitation schedule which more closely reflects the occasional visitation contemplated under the Grandparent Visitation Act.

NFP criminal decisions today (3):

Nathaniel W. Dickey v. State of Indiana (mem. dec.)

Trevor Williams v. State of Indiana (mem. dec.)

Shaun L. Steele v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on September 15, 2016 11:58 AM
Posted to Ind. App.Ct. Decisions