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Monday, March 13, 2017

Ind. Decisions - Court of Appeals issues 3 opinion(s) today (and 7 NFP memorandum decision(s))

For publication opinions today (3):

In Termination: KC, et al. v. Indiana Department of Child Services, a 20-page opinion, Judge May writes:

M.M. (“Mother”) and K.C. (“Father”) (collectively, “Parents”) appeal the involuntary termination of their parental rights to G.M. (“Child”). Mother challenges a number of the juvenile court’s findings and argues the Department of Child Services (“DCS”) did not present sufficient evidence the conditions under which Child was removed would not be remedied and termination was in the best interests of Child. Father makes similar arguments, but we find dispositive his argument the juvenile court could not terminate his rights when it had never issued a dispositional decree as to Father. We affirm in part, reverse in part, and remand. * * *

The juvenile court erred when it terminated Father’s parental rights to Child because Child had not been removed from Father under a dispositional decree for at least six months as required by Indiana Code Section 31-35-2- 4(b)(2)(A)(i). However, DCS presented sufficient evidence to support the juvenile court’s findings regarding Mother, including the juvenile court’s conclusions the circumstances under which Child was removed would not be remedied and termination was in Child’s best interests. Therefore, we reverse the termination of Father’s parental rights to Child, affirm the termination of Mother’s parental rights to Child, and remand to the juvenile court for proceedings consistent with this opinion.

In Derrian N. Hampton v. State of Indiana, a 19-page opinion, Judge Kirsch writes:
After the State filed a petition for revocation of Derrian Hampton’s (“Hampton”) suspended sentence, alleging probation violations, Hampton and the State entered into an Agreement on Petition to Revoke Suspended Sentence (“the Agreement”). In the agreement, Hampton admitted to a probation violation and was ordered to serve the balance of a previously-suspended sentence, and the State agreed to stay execution of the sentence for approximately six months. At the end of such time a review hearing would be held and, if Hampton had completed all terms and conditions of probation, the petition for revocation of suspended sentence would be dismissed. The trial court accepted the Agreement and entered an order. Following the review hearing, the trial court issued an Order on Violation of Probation, ordering Hampton to serve the previously-suspended sentence. The trial court denied Hampton’s Motion to Correct Error Alternatively Motion to Reconsider (“Motion to Reconsider”), and Hampton now appeals, raising three issues that we consolidate and restate as: Whether the trial court abused its discretion when it denied Hampton’s Motion to Reconsider. * * *

Following our Supreme Court’s direction in Woods and our colleagues’ application of that reasoning in Sullivan, we reverse the 550-day sanction and remand the matter to the trial court for it to determine the appropriate sanction to impose for Hampton’s violations of its order.

We affirm the trial court’s determination that Hampton violated the terms and conditions of her probation, and we remand the matter to the trial court for it to determine the appropriate sanction to impose for Hampton’s violations.

In Argumedo Alvarez-Madrigal v. State of Indiana, a 24-page opinion with a separate concurring opinion, Judge Kirsch writes:
Following a jury trial, Argumedo Alvarez-Madrigal (“Alvarez-Madrigal”) was convicted of four counts of Class A felony child molesting1 and two counts of Class C felony child molesting. He appeals, contending that a statement by a State’s witness constituted impermissible vouching evidence and that it was reversible error to admit it. * * *

The record before us indicates that there was substantial independent evidence of guilt supporting Alvarez-Madrigal’s convictions. We do not find that Dr. Thompson’s isolated factual statistic, which was not elicited and was spontaneously offered, likely had substantial influence on the verdict. * * *

Robb, J., concurs.
Barnes, J., concurs in result with separate opinion. [that begins, at p. 18] I concur in result here. I do not believe Alvarez-Madrigal adequately preserved his claim on appeal that Dr. Thompson gave impermissible vouching testimony. He objected to the testimony on the basis that it was “speculation” and “not relevant . . . .” A party cannot object on one basis at trial and seek reversal on appeal on a different ground.

NFP civil decisions today (2):

John E. Roberts, Jr. v. Nichole Roberts (mem. dec.)

Termination: MB v. Indiana Deparment of Child Services (mem. dec.)

NFP juvenile and criminal decisions today (5):

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

Terry Delane McNary v. State of Indiana (mem. dec.)

Darrell Lewis v. State of Indiana (mem. dec.)

Lamarr T. Crittenden v. State of Indiana (mem. dec.)

Francisco Garcia v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on March 13, 2017 11:07 AM
Posted to Ind. App.Ct. Decisions