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Thursday, December 08, 2016

Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 7 NFP memorandum decision(s))

For publication opinions today (2):

In In re the Expungement/Sealing of Records of H.M. v. State of Indiana and Marion County Sheriff, a 14-page opinion, with a concurring opinion, Judge Bailey writes:

H.M.’s criminal convictions were expunged in 2013. H.M. later applied with the Marion County Sheriff (“the Sheriff”) to serve as a volunteer deputy sheriff. After conducting a background check, the Sheriff declined H.M.’s application. H.M. initiated contempt proceedings alleging discrimination prohibited under Indiana’s criminal history expungement statute. The contempt petition was dismissed upon the Sheriff’s motion. H.M. now appeals. We reverse and remand. * * *

It may well be that the Sheriff had other bases upon which to deny H.M.’s application. But given the precise nature of H.M.’s allegation in the petition and the breadth of the anti-discrimination provisions of the expungment statute, we cannot say as a matter of law that the petition failed to adequately set forth a basis upon which H.M. might proceed in an effort to prove discrimination solely based upon his prior expunged convictions.

We recognize the Sheriff’s need to appoint deputy sheriffs who are qualified under the deputization statutes, as well as the scrutiny to which law enforcement is subjected. Yet the Indiana General Assembly has not limited the scope of the expungement statute by carving out an exception to the antidiscrimination provisions for the designation of deputy sheriffs. It is thus to the legislature—the same body that governs the powers of sheriffs to appoint their deputies—that the Sheriff’s arguments are best directed. * * *

The trial court did not err when it denied H.M.’s motion to strike. The trial court erred when it dismissed H.M.’s contempt petition. Reversed and remanded.

Riley, J., concurs.
Barnes, J., concurs with separate opinion [which appears on p. 14 and begins]
I concur with my colleagues in full. I write, though, to urge our Legislature to examine this provision of Indiana law and carve out some sort of law enforcement exception.

In In re the Adoption of A.G. & J.G., A.R. v. M.G. & J.G., a 7-page opinion, Judge Brown writes:
A.R. appeals from the trial court’s amended decree of adoption. A.R. raises five issues. We find dispositive the restated issue of whether the court abused its discretion in granting a motion to withdraw appearance filed by A.R.’s civil public defender. We reverse and remand. * * *

The dispositive issue is whether the trial court abused its discretion in granting Attorney Byer’s motion to withdraw appearance. A.R. argues that the court abused its discretion in granting Attorney Byer’s motion to withdraw appearance that did not comply with local rules and that this court has held that the appointment of counsel is required in an adoption case. Petitioners argue that Mother invited the error of which she complains by failing to cooperate or communicate with her attorney prior to the adoption hearing, that the denial of replacement counsel was harmless, and that remanding for a new adoption hearing would be against the Children’s best interest. * * *

The November 9, 2015 motion to withdraw appearance filed by Attorney Byer did not state that one of the conditions in section B of the rule occurred and did not state whether Attorney Byer provided A.R. with twenty-one days’ written notice with the information required in section C of the rule. Petitioners do not point to the record to show that Attorney Byer complied with the local rule. The trial court abused its discretion in granting Attorney Byer’s motion to withdraw appearance in violation of the local rule. See K.S. v. Marion Cnty. Dep’t of Child Services, 917 N.E.2d 158, 164-165 (Ind. Ct. App. 2009) (observing, in a case involving the termination of parental rights, there was no evidence that the mother’s attorney informed the mother of her intent to withdraw as required by a local rule, that parents involved in termination proceedings have a right to counsel, and that the local rule’s requirement that a withdrawing attorney expressly inform her client in writing of her intent to withdraw protects that interest, and holding the trial court abused its discretion in granting the mother’s attorney’s motion to withdraw her appearance in violation of the local rule). Further, A.R. did not have an attorney representing her during the adoption proceeding which terminated her parental rights.

Conclusion. For the foregoing reasons, we reverse and remand for further proceedings.

NFP civil decisions today (1):

Joseph Matly and Rima A. Matly v. Citimortgage, Inc. (mem. dec.)

NFP criminal decisions today (6):

Deltrice Watkins v. State of Indiana (mem. dec.)

Derrick Harris v. State of Indiana (mem. dec.)

Gerald Edward Johnson v. State of Indiana (mem. dec.)

Bryce Paxson v. State of Indiana (mem. dec.)

Joshua Thompson v. State of Indiana (mem. dec.)

Maximilian Spiegel v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on December 8, 2016 12:31 PM
Posted to Ind. App.Ct. Decisions