author: RILEY, Judge.

text:
    Keith D. JACKSON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 20A03-1105-CR-222.
    Court of Appeals of Indiana.
    June 6, 2012.

      Teresa L. Cataldo, Bristol, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Ann. L. Goodwin, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Appellant-Defendant, Keith Jackson (Jackson), appeals his sentence for possession of a firearm by a serious violent felon, Ind.Code § 35-47-4-5(c), and the trial court’s revocation of his probation and imposition of the balance of his suspended sentence in a separate, earlier Cause.

We reverse and remand.

ISSUES

Jackson raises three issues on appeal, which we restate as follows:

(1) Whether the trial court abused its discretion by sentencing Jackson to community service;
(2) Whether the trial court abused its discretion by ordering Jackson to pay public defender fees of $500; and
(3) Whether the trial court abused its discretion by imposing the balance of Jackson’s suspended sentence following revocation of his probation in a separate Cause.

FACTS AND PROCEDURAL HISTORY

On December 23, 2004, the State filed an Information in Cause Number 20C01-0412-FB-00196 (Cause No. 196), charging Jackson with robbery using a deadly weapon, a Class B felony, I.C. § 35-42-5-1. On July 7, 2005, Jackson entered into a guilty plea with the State in which he pled guilty to the charge in exchange for a twelve-year sentence at the Department of Correction (DOC), with four years suspended, and all other conditions left to the trial court’s discretion. On August 4, 2005, the trial court accepted the plea agreement and sentenced Jackson in accordance with its terms. Jackson was released from the DOC on April 12, 2009.

On October 28, 2009, the State filed an Information in Cause Number 20C01-0910-FB-00063 (Cause No. 063), charging Jackson with unlawful possession of a firearm by a serious violent felon, a Class B felony, I.C. § 35-47-4-5(e). On October 29, 2009, the probation department filed its petition for violation of probation in Cause No. 196. The petition recommended that the trial court revoke Jackson’s probation and order him to serve the balance of his four-year suspended sentence at the DOC.

On January 11, 2010, Jackson and the State filed a plea agreement with the trial court in Cause No. 063. Under the terms of the plea agreement, Jackson pled guilty to the charge in Cause No. 063 and admitted the probation violation in Cause No. 196. In exchange, the State agreed to the following:

[TJwelve year incarceration with [six] of those [twelve] years suspended in [Cause No. 063]. [Two] years served (as one with good-time credit) in [Cause No. 196.] Discharged from probation in [Cause No. 196.] Case closed[.] Probation to calculate credit time in [Cause No. 063],

(Appellant’s App. p. 163). At the hearing on the plea agreement, the trial court accepted the plea agreement and agreed to be “bound by the terms of the plea agreement.” (January 11, 2011 Transcript p. 19). The trial court confirmed the terms of the plea agreement as to both Cause numbers and specifically noted the two-year sentence, good time credit, and discharge from probation in Cause No. 196.

On February 8, 2011, the trial court held Jackson’s combined sentencing and sanctioning hearing. Jackson’s counsel explained to the trial court that the credit time provision of the plea agreement meant that Jackson’s 468 days of prior incarceration should be allotted as follows: 365 days to his probation violation in Cause No. 196 and 103 days in Cause No. 063. As a result, Jackson would be discharged from probation in Cause No. 196. The probation department would then be left to calculate the time in Cause No. 063, taking the remaining 103 days into account.

The trial court agreed to allocate the credit time as suggested by Jackson’s counsel. The trial court then sentenced Jackson to a twelve-year executed sentence, with six years suspended on probation in Cause No. 063. The trial court imposed a fine of $7,000, which was also suspended. The trial court then questioned Jackson as follows:

[TRIAL COURT]: Are you able to work, Mr. Jackson?
[JACKSON]: Excuse me, sir?
[TRIAL COURT]: Are you able to work?
[JACKSON]: Yes, sir.
[TRIAL COURT]: So while on probation you could earn $500 to reimburse the county a reasonable sum for the public defender services. Correct?
[JACKSON]: Yes, sir.
[TRIAL COURT]: And perform 50 hours of community service restitution. You can do that also?
[JACKSON]: Yes, sir.
[TRIAL COURT]: It is so ordered. [The e]ourt will also order the credit time allocated and calculated between [Cause No. 063] and [Cause No. 196]. Probation will file a memorandum with the [c]ourt. The [c]ourt will then issue an amendment to its sentencing order and abstract to include the correct credit time on each case. [Cause No. 196] he’s discharged from probation. Correct?
[STATE]: Correct.
[TRIAL COURT]: Correct?
[JACKSON’S COUNSEL]: Yes, your Honor.

(February 3, 2011 Tr. pp. 5-6).

On February 8, 2011, Jackson filed his handwritten motion to correct error with the trial court. Jackson alleged that the trial court had erred by imposing additional sanctions not specified in the plea agreement. On February 24, 2011, Jackson filed a letter with the trial court elaborating on the allegations in his motion to correct error. Jackson disputed that the fifty hours of community service and reimbursement of $500 dollars in public defender fees were conditions of his plea agreement in Cause No. 063. Jackson also contended that he had not been afforded the agreed upon credit time in Cause No. 196.

On February 25, 2011, the probation department submitted its credit time calculation memorandum to the trial court. The memorandum showed Jackson’s incarceration time prior to his conviction in Cause No. 063 as 473 days. However, the probation department concluded that Jackson was “entitled to zero (0) days credit against the 4 year sentence imposed” in Cause No. 196 because “[Jackson] was incarcerated in the Elkhart County correctional facility under [Cause No. 196].” (Appellant’s App. p 52). On March 24, 2011, the trial court held a hearing. That same day, the trial court issued its order revoking Jackson’s probation in Cause No. 196 and ordering him to serve four years, with no days credited. In Cause No. 068, however, the trial court ordered that Jackson receive 473 days credit plus 473 days earned credit time.

On April 15, 2011, Jackson filed a motion to correct erroneous sentence in both Cause No. 063 and Cause No. 196. On April 18, 2011, the trial court denied Jackson’s motion to correct erroneous sentence, reasoning as follows:

The [e]ourt notes it has the inherant [sic ] power to order restitution, whether financial or community service, and the [c]ourt also notes that attorneys were furnished to [Jackson] at public expense and [Jackson] agreed that he could work while on probation and earn $500.00 for reimbursement to the [p]ublic [d]efender for the [public defender’s] services.

(Appellant’s App. p. 153).

Jackson now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

I. Community Service

Jackson first challenges the community service condition of his probation in Cause No. 063 following his plea agreement with the State. The trial court has broad discretion to impose conditions of probation. Freije v. State, 709 N.E.2d 323, 325 (Ind.1999). However, “[i]f the court accepts a plea agreement, it shall be bound by its terms.” I.C. § 35-35-3-3(e). Thus, when the trial court establishes terms of probation following its acceptance of a plea agreement, its discretion is limited. S.S. v. State, 827 N.E.2d 1168, 1171 (Ind.Ct.App.2005), trans. denied. “A plea agreement is contractual in nature, binding the defendant, the State, and the trial court.” Bennett v. State, 802 N.E.2d 919, 921 (Ind.2004). Once the trial court accepts the plea agreement, it “is strictly bound by its sentencing provision and is precluded from imposing any sentence other than required by the plea agreement.” Id.

Although the trial court may impose administrative or ministerial conditions as terms of probation, it may not impose probation conditions that constitute “substantial obligations of a punitive nature” if the plea agreement “is silent to such punitive conditions.” Id. Community service “materially add[s] to the punitive obligation” and thus “may not be imposed in the absence of a plea agreement provision giving the trial court discretion to impose conditions of probation.” Freije, 709 N.E.2d at 325.

Jackson argues that the imposition of community service is a material term not addressed in the plea agreement, and therefore the trial court erred by imposing it. The State, although acknowledging the supreme court’s decision in Freije, nonetheless argues that Jackson invited the error by agreeing to perform the community service.

Here, Jackson’s plea agreement did not specify community service as a condition of probation. Bearing in mind that plea agreements are to be strictly adhered to, we cannot agree that the trial court may properly vary its terms to add a punitive obligation simply by seeking the defendant’s verbal assent. See Briscoe v. State, 783 N.E.2d 790, 792 (Ind.Ct.App.2003). The trial court could not order Jackson to undertake community service since the plea agreement did not specify that it had the discretion to do so. We therefore conclude that the trial court abused its discretion.

II. Public Defender Fees

Jackson next argues that the trial court’s imposition of public defender fees was an abuse of discretion. Specifically, Jackson alleges that the trial court erred by imposing a public defender fee of $500 since it was not part of his plea agreement and he had previously been found indigent. We review the trial court’s imposition of costs or fees for an abuse of discretion. Kimbrough v. State, 911 N.E.2d 621, 636 (Ind.Ct.App.2009). If the trial court imposes fees within statutory limits, there is no abuse of discretion. Id.

We first observe that costs and fees are not a part of the defendant’s sentence and are separate from fines. See I.C. §§ 33-37-1-3(b); 33-37-2-2; -5. Thus, although the plea agreement did not provide for costs and fees, we do not agree that the trial court was prohibited from imposing them, albeit within statutory restrictions. See Briscoe, 783 N.E.2d at 791-92. Also, Jackson asserts his indigency as a bar to the $500 public defender fee because the trial court had already made a finding that he was indigent and had appointed trial counsel in Cause No. 063 as a result. It is true that this court has reached different conclusions on whether appointment of trial counsel based on indigence is conclusive as to the defendant’s ability to pay fines or costs. Compare Clenna v. State, 782 N.E.2d 1029, 1034 (Ind.Ct.App.2003) with Briscoe, 783 N.E.2d at 792-93. However, later cases have concluded that appointment of counsel affords only a presumption of indigency at the time of sentencing. See McRoy v. State, 794 N.E.2d 539, 543 n. 3 (Ind.Ct.App.2003), clarified on reh’g, 798 N.E.2d 521 (Ind.Ct.App.2003).

We do not know, however, whether the trial court attempted to adhere to statutory restrictions because it did not identify the statutory basis for imposing the public defender fees on Jackson. Three statutory provisions address the imposition of public defender fees and the trial court can order reimbursement under any or a combination thereof. May v. State, 810 N.E.2d 741, 745 (Ind.Ct.App.2004). First, the trial court may impose public defender fees prior to completion of the initial hearing, but must make a prior determination whether the defendant is indigent. I.C. § 35-33-7-6(a). If the defendant is found indigent, public defender fees are limited to $100 in felony cases and $50 in misdemeanor cases. I.C. § 35-33-7-6(c). Although referring to the initial hearing, this statute has been interpreted not to prohibit the imposition of fees later in the proceedings. Davis v. State, 843 N.E.2d 65, 68 (Ind.Ct.App.2006).

Second, if the trial court finds that the defendant has the ability to pay “the costs of representation,” the trial court shall impose reasonable attorney fees “at any stage” of a felony or misdemeanor prosecution. I.C. § 33-40-3-6. In such case, the trial court must consider certain enumerated factors to determine the defendant’s ability to pay. Id.; I.C. § 33-40-3-7. Finally, the trial court may impose part of the attorney fees upon a convicted person, provided the trial court first determines that such person is not indigent. I.C. § 33-37-2-3. In the latter case, the trial court may suspend payment of fees until completion of the executed portion of the defendant’s sentence, holding a hearing to determine indigency thereafter. Berry v. State, 950 N.E.2d 798, 802 (Ind.Ct.App.2011).

In May v. State, the defendant was ordered to reimburse the public defender fund $750 following his conviction for a felony. May, 810 N.E.2d at 746. The trial court had failed to specify the statutory basis and to conduct an indigency hearing before ordering the reimbursement. Id. We remanded to the trial court to reverse its reimbursement order, with instructions to follow the statutory requirements if it later elected to impose public defender fees. Id.

Here, the trial court did not specify the statutory authority under which it imposed the $500 fee. Further, although the trial court asked Jackson if he could work, we cannot say this constituted a sufficient inquiry into Jackson’s ability to pay. See Lamonte v. State, 889 N.E.2d 172, 175-76 (Ind.Ct.App.2005). We therefore find that the trial court abused its discretion by imposing the $500 public defender fee. We reverse and remand to the trial court with instructions to observe the statutory requirements if it intends to impose public defender fees.

III. Discharge from, Probation

Finally, Jackson disputes the trial court’s order requiring him to serve his four-year suspended sentence in Cause No. 193. Jackson directs us to language in the plea agreement specifically requiring a two-year sentence for the probation violation, rather than the originally suspended sentence of four years. The State agrees with Jackson that the trial court committed error because the plea agreement called for a two-year rather than a four-year sentence. The State requests us to remand to the trial court for resentencing and re-issuing of an amended abstract of judgment.

Upon finding that a probation violation occurred, the trial court may order a defendant to continue on probation, with or without modification of conditions, execute all or part of the defendant’s suspended sentence, or extend the duration of probation for up to an additional year in excess of the original probationary period ordered. See I.C. § 35-38-2-3(g)(l-3). If the parties enter into a plea agreement that calls for the trial court to treat a probation violation in a particular manner, once accepted, the trial court is thereby bound. See I.C. § 35-35-3-3(e).

Here, the express terms of the plea agreement indicated that Jackson should receive a two year executed sentence, rather than the four-year suspended sentence originally imposed in Cause No. 196. After applying the time credit, the trial court was obligated to discharge Jackson from probation in Cause No. 196. Accordingly, the trial court committed error by imposing the suspended sentence of four years contrary to the accepted plea agreement. We therefore reverse and remand to the trial court to resentence Jackson in accordance with the plea agreement.

CONCLUSION

Based on the foregoing, we conclude that (1) the trial court abused its discretion by ordering Jackson to serve community service contrary to his plea agreement; (2) the trial court abused its discretion by ordering Jackson to pay public defender fees; and (3) the trial court abused its discretion by ordering Jackson to serve his suspended sentence as a result of his probation violation. Accordingly, we reverse and remand.

Reversed and remanded with instructions.

NAJAM, and DARDEN, JJ., concur.

      . Jackson was also fined $7,000 by the trial court in Cause No. 063. The trial court, however, suspended payment of that fine and Jackson does not address its propriety on appeal. Because this issue is not properly before us, however, we do not address it.


source: Caselaw Access Project

author: MATHIAS, Judge.

license: Public Domain

text:
    W.D., a minor by his parents R.D. and S.D., and R.D. and S.D., individually, Appellants, v. CITY OF NAPPANEE, Appellee.
    No. 20A05-1112-CT-698.
    Court of Appeals of Indiana.
    June 6, 2012.
    Daniel H. Pfeifer, Douglas E. Sakaguchi, Pfeifer Morgan & Stesiak, South Bend, IN, Attorneys for Appellants.
    Mark D. Ulmschneider, Steele, Ulmsch-neider, & Malloy LLP, Fort Wayne, IN, Attorney for Appellee.
   OPINION

MATHIAS, Judge.

W.D., by his parents S.D. (“Mother”) and R.D. (“Father”), and Mother and Father, individually, filed a complaint in Elk-hart Superior Court alleging that the City of Nappanee (“the City”) breached its duty of care to W.D., which proximately caused injuries suffered at the City’s pool. The City filed a motion for summary judgment and argued that it did not breach its duty of care to W.D. as a matter of law. The trial court granted the motion and W.D., Mother, and Father appeal the trial court’s entry of summary judgment in favor of the City and the resulting dismissal of their complaint.

We affirm.

Facts and Procedural History

On June 24, 2009, Mother took her five-year-old son, W.D., his eight-year-old sister, R.D., and a friend to the City pool. The family had visited the pool on several occasions and W.D. had taken swimming lessons there, but W.D. had only limited swimming skills.

Mother and the children arrived at the City pool at approximately 11:00 a.m. Mother did not enter the pool area, but sat outside the fenced area of the pool. It was a very warm day and there were approximately 120 swimmers in the pool. W.D. stayed in the shallow area of the pool where he would bob in the water, blow bubbles with his face in the water, and jump off the side of the pool into the water.

After the children had a picnic lunch, they returned to the pool. Mother proceeded to the registration counter of the pool to sign the children up for swimming lessons. As a result, Mother’s view of the pool was obstructed. W.D. and R.D. were playing in the shallow end of the pool when W.D. told R.D. that he wanted to watch her jump off of the diving board.

R.D. could see W.D. from the area near the diving board. She jumped off the diving board one time, checked on W.D. and observed that he seemed to be fíne. As she walked up to the diving board to jump off a second time, she noted that W.D. was still in the shallow end of the pool and appeared to be fíne. After her second dive, R.D. walked toward the shallow end of the pool and saw W.D. floating face down in the water near the edge of the pool.

At approximately the same time, lifeguard Mitchell Anthony (“Anthony”) observed W.D. floating face down in the water. Anthony and the other three lifeguards at the pool that day were certified lifeguards and had undergone Red Cross training. The lifeguards were taught to visually scan the pool from one side of their area to the other taking approximately ten seconds to perform one scan. The lifeguards were instructed to watch for signs of swimmer distress including no movement, bobbing up and down, and flailing hands. Because children would often take part in “hold their breath competitions” or would practice holding their breath face down in the water, upon observing a child floating face down in the water, they would scan back to the child for a second look to determine whether the child was playing or in need of assistance. Appellant’s App. pp. 108-04, 113.

After Anthony first observed W.D. floating face down, he continued to scan his area of the pool. When he scanned back to W.D. and saw that he was still face down in the water, he immediately jumped down from his lifeguard chair, reached W.D. as quickly as possible, and pulled him from the water onto the pool deck. Lifeguard Kaitlin Kirkdorffer (“Kirkdorffer”) also realized that W.D. was in distress, and blew her whistle two times to let the other swimmers know they needed to exit the pool.

Kirkdorffer then ran over to W.D., and checked his airway, breathing, and circulation. After determining that his airway was not blocked, but that he was not breathing and had no pulse, she gave W.D. two rescue breaths. Kirkdorffer checked his vital signs again, and after detecting no vital signs, she began CPR. After the second round of CPR, W.D. began to cough. Kirkdorffer then sat W.D. up so that he could expel any water that was in his lungs, and W.D. began breathing on his own. EMTs arrived shortly thereafter and W.D.’s care was transferred to them.

On April 14, 2010, W.D., by his parents, and Mother and Father individually (“collectively W.D.”), filed a complaint against the City. The City later filed a motion for summary judgment arguing that they had not breached their duty of care to W.D., and therefore, W.D. was not entitled to any recovery on his negligence claim. In support of its motion, the City designated deposition testimony from W.D.’s sister, R.D., lifeguards Anthony and Kirkdorffer, and the pool manager, and Mother’s answers to the City’s interrogatories. W.D. filed a response to the City’s motion and with that response designated to the trial court only the pool’s incident report.

On November 15, 2011, the trial court issued its order granting the City’s motion for summary judgment and dismissing W.D.’s complaint. Specifically, the trial court determined that the parties’ designated evidence “fail[s] to establish a breach of the [City’s] duty to use reasonable care to protect [W-D.] from drowning. ... All the undisputed facts support that the lifeguards were maintaining a proper lookout and that prompt and appropriate action was taken.” Appellant’s App. p. 14.

Anthony estimated that between scans, W.D. could not have been face down in the water for more than thirty (30) seconds. Lifeguard Kaitlin Kirkdorffer confirmed the brief time frame, noticing the change in [W.D.’s] condition (him lying face down in the water) at almost the same time as Anthony. Immediately, Lifeguard Anthony sprang into action, reaching W.D. in mere seconds, where, with the help of lifeguard Kirk-dorffer, effectuated a successful rescue of [W.D.] from the water, saving his life. What more the City of Nappanee’s lifeguard staff could have done to protect [W.D.] is hard to fathom.

Id. W.D. now appeals the trial court’s entry of summary judgment in favor of the City.

Standard of Review

W.D. argues that the trial court erred by granting summary judgment to the City on his negligence claim. Our standard of review for a trial court’s grant of a motion for summary judgment is well settled. Summary judgment is appropriate only where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C); Mangold v. Ind. Dep’t of Natural Res., 756 N.E.2d 970, 973 (Ind.2001). All facts and reasonable inferences drawn from those facts are construed in favor of the nonmovant. Mangold, 756 N.E.2d at 973. Our review of a summary judgment motion is limited to those materials designated to the trial court. Id. “The party seeking summary judgment has the initial burden of proving the absence of a genuine issue of material fact as to an outcome-determinative issue.” Kroger Co. v. Plonski, 930 N.E.2d 1, 8 (Ind.2010). The nonmovant must then come forward with contrary evidence demonstrating the existence of genuine factual issues that should be resolved at trial. Jarboe v. Landmark Cmty. Newspapers of Ind., Inc., 644 N.E.2d 118, 123 (Ind.1994). We must carefully review a decision on summary judgment to ensure that a party was not improperly denied its day in court. Mangold, 756 N.E.2d at 974.

Discussion and Decision

To prevail on a claim of negligence the plaintiff must show: (1) duty owed to the plaintiff by defendant; (2) breach of duty by allowing conduct to fall below the applicable standard of care; and (3) compensable injury proximately caused by defendant’s breach of duty. Kroger, 930 N.E.2d at 7. With regard to the “duty” element, the City does not dispute that it owed a duty to W.D. It is well established that governmental units have a “duty to maintain a public recreational facility in a reasonably safe manner” and owe a duty to private individuals to use ordinary and reasonable care under the circumstances. Benton v. City of Oakland City, 721 N.E.2d 224, 288 (Ind.1999); see also Putnam Cnty. Sheriff v. Price, 954 N.E.2d 451, 454 (Ind.2011).

But the City argued, and the trial court agreed, that under these circumstances, the City did not breach its duty of ordinary and reasonable care to W.D.

Although the existence of duty is a matter of law for the court to decide, a breach of duty, which requires a reasonable relationship between the duty imposed and the act alleged to have constituted the breach, is usually a matter left to the trier of fact. Only where the facts are undisputed and lead to but a single inference or conclusion may the court as a matter of law determine whether a breach of duty has occurred.

Id. at 9 (citing Mangold, 756 N.E.2d at 975). W.D. argues that whether the lifeguards acted reasonably under the circumstances is a genuine issue of material fact, and therefore, the trial court improperly granted the City’s motion for summary judgment.

The City designated evidence that the pool area was adequately staffed by trained lifeguards. There were four lifeguards on duty that day. Three lifeguards sat in lifeguard chairs and one lifeguard walked the pool area. The City designated evidence from Anthony’s and Kirkdorf-fer’s depositions to establish that the lifeguards were certified and had Red Cross training.

The City’s designated evidence also leads to the conclusion that W.D. was floating face down in the pool for approximately thirty seconds before he was removed from the pool by lifeguard Anthony. Both lifeguards testified that they were trained to and had been scanning the pool area in ten second sweeps. Anthony testified that he observed W.D. floating face down, and as he was trained to do, performed another ten-second scan of the pool before taking a “second look” at W.D. After seeing that W.D. was still floating face down, Anthony jumped into the pool, removed W.D. from the water and placed him on the pool deck. Lifeguard Kirk-dorffer realized W.D. was in distress within a second or two of Anthony and blew her whistle twice to remove the other swimmers from the pool.

Kirkdorffer then checked W.D.’s vital signs, and started CPR. After the second round of CPR, W.D. coughed, and Kirk-dorffer sat him up so that any water in his lungs would be expelled. Thereafter, W.D. began breathing on his own. Kirk-dorffer’s training and immediate action saved W.D.’s life.

W.D.’s sister’s testimony similarly established that W.D. had been floating face down for less than thirty seconds. She testified that W.D. was fine right before she jumped off the diving board. After her jump, R.D. got out of the pool and walked toward the area where W.D. had been and saw him floating face down.

Our court has previously stated that a lifeguard owes a duty to help imperiled swimmers, but the lifeguard “cannot possibly be an absolute insurer of the safety of swimmers.” Plummer v. Bd. of Com’rs of St. Joseph County, 653 N.E.2d 519, 523 (Ind.Ct.App.1995), trans. denied. The City’s undisputed designated evidence establishes that the lifeguards exercised ordinary and reasonable care under the circumstances, and therefore, they did not breach their duty to W.D. W.D. was briefly imperiled before the lifeguards realized that he needed assistance. The City’s lifeguards then quickly removed W.D. from the pool and saved his life.

Although our courts rarely determine whether a breach of duty occurred as a matter of law, this case represents one of those rare exceptions. Because the record lacks any designated evidence of disputed factual questions that would preclude the entry of summary judgment in this case, we affirm the trial court’s entry of summary judgment in favor of the City and its dismissal of W.D.’s complaint.

Affirmed.

ROBB, C.J., and BAILEY, J., concur.

      . A copy of the complaint is not included in the record on appeal.


author: MASSA, J.,

text:
    Corey FLETCHER, Appellant, v. STATE of Indiana, Appellee.
    No. 79S02-1204-CR-208.
    Supreme Court of Indiana.
    June 12, 2012.
   PUBLISHED ORDER

By order dated April 4, 2012, the Court granted a petition seeking transfer of jurisdiction from the Court of Appeals to this Court. After further review, including oral argument, a majority of the Court has determined that transfer was improvidently granted. Accordingly, the order granting transfer is VACATED and transfer is hereby DENIED. The Court of Appeals opinion reported as Fletcher v. State, 959 N.E.2d 922 (Ind.Ct.App.2012), is no longer vacated under Appellate Rule 58(A), and is reinstated as Court of Appeals precedent. Pursuant to Appellate Rule 58(B), this appeal is at an end.

The Court DIRECTS the Clerk to certify this appeal as final, and to send a copy of this order to counsel of record, and to LexisNexis and Thomson/Reuters for publication on-line and in the bound volumes of the Court’s decisions.

DICKSON, C.J., and SULLIVAN, RUCKER, and DAVID, JJ., concur.

MASSA, J., dissents to the denial of transfer with separate opinion.

MASSA, J.,

dissents with opinion from denial of transfer.

The purpose of our Criminal Rule 4 is to give predictable substance to the State and Federal Constitutional guarantees of a “speedy” trial otherwise left undefined in our charters. In this case, habitual offender and methamphetamine conspirator Corey Fletcher was arrested in February, tried and convicted in July and sentenced to forty years in prison, a fair and efficient administration of justice by any measure. He now goes free, with no corresponding benefit to the body of law that protects every citizen’s rights, and contrary to precedents of this Court.

The Court of Appeals found a violation of Criminal Rule 4 when the trial judge ignored Fletcher’s pro se request that a speedy trial commence within the required 70 days. This pro se motion was filed after appointment of a public defender in open court, but before an appearance was on file. Fletcher v. State, 959 N.E.2d 922 (Ind.Ct.App.2012). It was within the judge’s discretion to ignore the pro se filing and he did so the day after it was filed, recording that defendant had counsel. Id. at 924 (“The Court notes that special Public Defender has previously been appointed. The Court affirms dates previously set.”). The wiser and safer course may well have been to give Fletcher his trial in May after his lawyer attempted to adopt the motion on April 19, retroactive to its filing in March, but I am not prepared to say it was an abuse of discretion when the law plainly gives the court the option to ignore pro se motions under these circumstances. See Underwood v. State, 722 N.E.2d 828, 832 (Ind.2000); see also Bradbetry v. State, 266 Ind. 530, 536-37, 364 N.E.2d 1183, 1187 (1977) (“[T]he trial judge exercises wide discretion because no constitutional right to hybrid representation exists.”). That we might suggest a better alternative in hindsight does not establish an abuse of discretion occurred, particularly when the sanction to public safety is so severe.

Fletcher’s trial was timely and fair. His rights were not violated and his conviction should be affirmed. Worse, I fear this split decision of the Court of Appeals, see Fletcher, 959 N.E.2d at 930 (Friedlander, J., dissenting), left undisturbed, may sow confusion among trial judges confronted with pro se filings by represented défen-dants. For these reasons, I respectfully dissent.


author: BAILEY, Judge.

text:
    Kimberly A. PIEPER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 89A01-1110-CR-482.
    Court of Appeals of Indiana.
    March 29, 2012.
    Ordered Published May 22, 2012.
    Mark I. Cox, The Mark I. Cox Law Office, LLC, Richmond, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Eric P. Babbs, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BAILEY, Judge.

Case Summary

Kimberly A. Pieper (“Pieper”) was convicted by a jury of Neglect of a Dependent, a Class D felony, and Operating a Motor Vehicle while Intoxicated, in a Manner that Endangers a Person, a Class A misdemeanor; she admitted her status as a habitual substance offender. She now attempts to challenge the habitual substance offender adjudication, claiming that her pre-trial motion to dismiss should have been granted because the habitual substance offender allegation was untimely. We dismiss.

Facts and Procedural History

On September 9, 2009, the State charged Pieper with Neglect of a Dependent, and Operating a Motor Vehicle While Intoxicated, in a Manner that Endangers a Person, and also alleged her to be a habitual offender. The trial court set an omnibus date of November 9, 2009. On March 16, 2010, the parties entered into a plea agreement. On May 10, 2010, Pieper withdrew from the agreement. Three days later, on May 13, 2010, the State filed an allegation that Pieper is a habitual substance offender.

On June 14, 2010, Pieper filed a motion to dismiss the habitual substance offender allegation as untimely. The State responded that it had good cause for filing the allegation later than ten days after the omnibus date, because plea negotiations had been ongoing. The trial court conducted a hearing on October 18, 2010. On October 22, 2010, the trial court denied the motion to dismiss. Each of the parties requested continuances.

On August 29, 2011, Pieper’s jury trial was conducted, and she was found guilty of both charges against her. She then admitted her status as a habitual substance offender. She received a two-year sentence for Neglect of a Dependent and a one-year concurrent sentence for the Operating While Intoxicated offense. The latter was enhanced by five years, due to Pieper’s status as a habitual substance offender. Accordingly, Pieper’s aggregate sentence is six years. She now appeals.

Discussion and Decision

Following her jury trial, Pieper communicated her intention to admit to the habitual substance offender allegation. Outside the presence of the jury, the trial court informed Pieper of the consequences of her plea, including the waiver of the right to appeal the habitual substance offender adjudication. Pieper indicated that she understood the advisements, admitted that a factual basis existed to support the habitual substance offender allegation, and then admitted her status as a habitual substance offender.

In Tumulty v. State, 666 N.E.2d 394 (Ind.1996), a defendant charged with multiple offenses and alleged to be a habitual offender pled guilty to all charges but then appealed the acceptance of the plea. Our Indiana Supreme Court observed that “the plea as a legal act brings to a close the dispute between the parties” and held that Tumulty was prohibited from bringing his claim on direct appeal. Id. at 396. Following the trial court’s acceptance of a guilty plea, “a defendant is entitled to contest the merits of a trial court’s sentencing discretion,” but otherwise a petition for post-conviction relief is the appropriate vehicle for pursuing claims. Id.

Here, Pieper admitted to the habitual substance offender allegation. She does not challenge an exercise of the trial court’s sentencing discretion, but rather requests that we vacate the adjudication entered upon her admission and vacate the sentence enhancement in its entirety. The basis upon which she seeks to have the adjudication vacated is her contention that the trial court erred in its pre-trial ruling that the State’s late filing of the habitual substance offender allegation was supported by good cause.

However, Pieper may not challenge the acceptance of her plea on direct appeal. See id. at 394. Moreover, she may not challenge the trial court’s ruling on a pre-trial motion. One who pleads guilty “cannot benefit from both the advantages of pleading guilty and the right to raise allegations of error with respect to pre-trial rulings; these rights are relinquished once defendants decide against facing an uncertain outcome at trial.” Alvey v. State, 911 N.E.2d 1248, 1251 (Ind.2009).

A direct appeal is not the appropriate vehicle for seeking to vacate an adjudication as a result of a guilty plea. Therefore, we dismiss the appeal.

Dismissed.

ROBB, C.J., and MATHIAS, J., concur.

      . Ind. Code § 35-46-1-4(a)(1).

      . Ind. Code § 9-30-5-2(b).

      . Ind. Code § 35-50-2-10.

      . She does not challenge her convictions entered upon the jury verdicts.

      . Ind. Code § 35-50-2-8.

      . Indiana Code Section 35-34-1-5 requires that an amendment of an indictment or information to include a habitual offender allegation must be filed not later than ten days after the omnibus date; however, upon good cause, the court may permit the filing any time before the commencement of trial.


author: BARNES, Judge.

text:
    Lisa REYNOLDS, Appellant-Defendant, v. Daniel CAPPS, Appellee-Plaintiff.
    No. 77A05-1110-SC-567.
    Court of Appeals of Indiana.
    May 23, 2012.

      Marcy Wenzler, Jamie Andree, Jennifer Prusak, Indiana Legal Services, Inc., Bloomington, IN, Attorneys for Appellant.
    Alison M. Becker, Certified Legal Intern, Fran Quigley, Health and Human Rights Clinic, Indiana University, Robert H. McKinney School of Law, Indianapolis, IN, Attorneys for Amicus Curiae, Health and Human Rights Clinic.
   OPINION

BARNES, Judge.

Case Summary

Lisa Reynolds appeals the trial court’s order requiring her to vacate her apartment. We reverse.

Issue

Reynolds raises four issues. We address one dispositive issue, which we restate as whether Reynolds was denied due process when the trial court ordered her to vacate her apartment.

Facts

Reynolds rented an apartment owned by Daniel Capps in Sullivan. On August 29, 2011, Capps filed a small claims complaint. The complaint named Reynolds as the defendant and listed her address and phone number. On the form complaint, Capps checked the boxes “Ejectment,” “Damages,” and “Rent.” App. p. 7. The complaint contained no other information regarding Capps’s claim. The complaint indicated that a trial date was set for September 13, 2011 during which the claim would “be heard by the Court at a trial held at the Sullivan Superior Court....” Id. The complaint included fine print detailing the trial procedures, including the presentation of a defense, the ability to subpoena witnesses, and the right to a jury trial.

Capps, Reynolds, and a witness for Reynolds appeared at the September 13, 2011 hearing. However, a judge was not present at the September 13, 2011 hearing, and the hearing was conducted by the court reporter. No witnesses were sworn, and no evidence was heard. The court reporter verified the nature of the action, and the parties discussed their allegations, including Reynolds’s concerns about the condition of the premises. The court reporter repeatedly explained that evidence relating to the parties’ allegations would be heard later. In her statement of the evidence, the court reporter explained, “I advised the parties the reason for the Initial Hearing was to set a date for the Defendant to vacate the Plaintiffs rental property....” Id. at 9. According to the court reporter, when Reynolds made statements about the problems with the apartment, the court reporter responded, “all evidence was to be heard at the trial of this matter....” Id.

The court reporter filled out a pre-signed “INITIAL HEARING/JUDGMENT ORDER” form requiring Reynolds to vacate the premises. Id. at 5. The form specifically provided, “The Court FINDS for Plaintiffs) and order Defendant(s) to vacate the premises ... by 9-27-11 6:00 p.m.” Id. Reynolds vacated the apartment and, on September 30, 2011, a damages hearing conducted by a judge was held. At the conclusion of the hearing, the trial court ordered Reynolds to pay $975 in damages. Reynolds now appeals.

Analysis

Reynolds argues that the manner in which the September 18, 2011 hearing was conducted violated her due process rights. This is a question of law, which is reviewed de novo. See Morton v. Ivacic, 898 N.E.2d 1196, 1199 (Ind.2008).

Capps has not filed an appellee’s brief. We do not undertake to develop an argument on his behalf and may reverse upon Reynolds’s prima facie showing of reversible error. See id. “Prima facie error in this context is defined as, ‘at first sight, on first appearance, or on the face it.’ ” Id. (citation omitted).

As explained in Morton:

The Fourteenth Amendment prohibits any state from depriving any person of “life, liberty, or property, without due process of the law.” U.S. Const, amend. XIV, § 1. “Generally stated, due process requires notice, an opportunity to be heard, and an opportunity to confront witnesses.” Ind. State Bd. of Edue. v. Brownsburg Cmty. Sch. Corp., 842 N.E.2d 885, 889 (Ind.Ct.App.2006). The “opportunity to be heard” is a fundamental requirement of due process. Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950). In Lindsey v. Nor-met, 405 U.S. 56, 66, 92 S.Ct. 862, 31 L.Ed.2d 36 (1972), the Supreme Court explained that this principle includes “an opportunity to present every available defense.”

Id. Our supreme court has also observed, “Due process requires a neutral, or unbiased, adjudicatory decisionmaker. Scholars and judges consistently characterize provision of a neutral decision-maker as one of the three or four core requirements of a system of fair adjudicatory decision-making.” Rynerson v. City of Franklin, 669 N.E.2d 964, 967 (Ind.1996) (quotation omitted).

“Ejectment is an action to restore possession of property to the person entitled to it.” Morton, 898 N.E.2d at 1199. “Our General Assembly enacted a statutory scheme that provides for a prejudgment possession hearing to allow the defendant to controvert a plaintiffs affidavit which states why the plaintiff is entitled to possession of the property.” Id. “The pre-judgment hearing allows for a defendant ‘to controvert the affidavit or to show cause why the judge should not remove the defendant from the property and put the plaintiff in possession.’ ” Id. (quoting Ind.Code 32-30-3-2(a)). After the plaintiff files an affidavit, the court issues an order to show cause that must explain the defendant’s rights. Id. at 1199-1200 (citing I.C. § 32-30-3-2(b)). In an ejectment action, all legal and equitable defenses are provable under a general denial and any state of facts that would invoke the aid of equity for relief against the claim would be a defense. Id. at 1200.

Regardless of whether the applicable statutory requirements were met here, it is clear that the September 13, 2011 hearing did not satisfy the very minimum due process requirements — namely that a judge, or someone so authorized, preside over the hearing. In fact, this hearing was conducted by the court reporter. This violated Reynolds’s right to a neutral decision-maker. Further, no witnesses were sworn, no evidence was heard, and Reynolds was not given the opportunity to defend against the ejectment. Reynolds was then presented with a pre-signed order requiring her to vacate the premises. This violated her right to- present a defense.

It is an understatement to say that the hearing proceeded from the outset under the expectation that Capps was entitled to immediate possession of the premises. See id. (observing that the hearing proceeded from the onset under the expectation that the landlord was entitled to an order of immediate possession and the denial of an opportunity to present evidence was inconsistent was due process and the statutory framework). Even taking into account the informality of the small claims process, if the hearings on evictions are regularly conducted without a judicial officer present, we pointedly and directly express our concern and expect that situation to be remedied. Reynolds has made a prima facie showing that the September 13, 2011 hearing was conducted in a matter that denied her due process. Thus, the order requiring Reynolds to vacate the premises and the subsequent damages award must be reversed.

Conclusion

Because the manner in which the hearing was conducted denied Reynolds due process, we reverse.

Reversed.

FRIEDLANDER, J., and MAY, J., concur.

      . There is no transcript of this hearing. Reynolds prepared a verified statement of evidence and moved to certify the statement pursuant to Indiana Appellate Rule 31 (A). Although Indiana Appellate Rule 31(B) allows any party to file a response, the court reporter filed a verified statement of evidence. Referring to Indiana Appellate Rule 31(C), the trial court certified both statements. Because Reynolds did not object to the court reporter filing a statement of evidence and relies on that statement in her brief, we also consider it. However, we are troubled that the trial court judge certified a statement of evidence for hearing at which he was not present.

      . The Health and Human Rights Clinic of the Indiana University Robert H. McKinney School of Law was granted permission to appear as amicus curiae. Amicus contends that the bifurcated process is unlawful. Based on our conclusion today, it is not necessary to reach the merits of this question.


text:
    In the Matter of the Termination of the Parent-Child Relationship of D.K., a Minor Child, and his Mother, O.K., Appellant-Respondent, v. Indiana Department of Child Services, Appellee-Petitioner.
    No. 22A01-1110-JT-485.
    Court of Appeals of Indiana.
    May 30, 2012.

      Mark Small, Indianapolis, IN, Attorney for Appellant.
    Michelle Marquand, Indiana Dept, of Child Services, Jeffersonville, IN, Robert J. Henke, DCS Central Administration, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BARNES, Judge.

Case Summary

O.K. (“Mother”) appeals the trial court’s termination of her parental rights to her son, D.K. We affirm.

Issue

The sole restated issue before us is whether there is sufficient evidence to support the termination of Mother’s parental rights.

Facts

D.K. was born in October 2008. D.K’s father, K.F. (“Father”), has never financially supported D.K. and was incarcerated after his birth. On March 30, 2009, the Floyd County office of the Department of Child Services (“DCS”) removed D.K. from Mother’s care and placed him in foster care after it substantiated a report of neglect. Mother was attending a court hearing regarding eviction from her apartment when DCS came to the residence and found D.K. in the care of an unrelated person — apparently a boyfriend who was not Father — who was asleep. Additionally, there was a lack of proper food and clothing in the residence.

D.K. was adjudicated a child in need of services (“CHINS”) on April 7, 2009. As part of the CHINS dispositional order, Mother was ordered to participate in parenting skills education, attend visitation, and obtain stable housing and employment. Over the course of the next two years, Mother lived in at least eight different residences. She lived with friends, relatives, and boyfriends during this time period. The court appointed special advocate (“CASA”) assigned to the case often had trouble locating or contacting Mother because of her frequent moves.

Mother’s work history during the CHINS proceedings consisted of a part-time minimum wage position at Dairy Queen for eight months, employment at another restaurant for one Christmas season, and full-time at a Kroger grocery store in Louisville, Kentucky for two months. Mother quit her job at Kroger after one of her frequent moves because she did not have transportation to that job, which had been provided by an ex-boyfriend’s mother.

Mother never completed any of the required parenting classes, nor did she complete her GED, although it had been recommended that she do so. In August 2009, D.K. was placed in Mother’s custody at a group home. However, Mother was removed from the group home program in November 2009, for violating rules against having boyfriends spend the night there and possessing alcohol. D.K. then was returned to foster care. Mother was aware of the rules and was aware of the consequences for breaking them. When Mother lived in Louisville, DCS offered to look into the possibility of arranging for an Interstate Compact for Placement of Children to have D.K. live with Mother, but Mother declined to cooperate in that process.

On January 5, 2011, the trial court held a hearing with respect to terminating Father’s parental rights to D.K., and it did in fact terminate his parental rights thereafter. Prior to this hearing, Mother had indicated she might be willing to voluntarily terminate her parental rights and consent to D.K’s adoption by the foster parents, but she stated at this hearing that she was not willing to so consent. The trial court did not consider evidence related to termination of Mother’s parental rights at this time.

After this hearing, DCS agreed to reini-tiate services for Mother and referred her to a service provider. However, Mother cancelled her scheduled initial meeting with a counselor at the service provider and also failed to show up at the rescheduled meeting. The service provider thereafter terminated its referral for Mother due to non-compliance.

The DCS filed an amended petition to terminate Mother’s parental rights on March 28, 2011. The trial court conducted a hearing on the petition on July 15, 2011. Evidence was presented that D.K. is doing very well in his current foster care placement and that the foster family wishes to adopt him. Mother was unemployed at the time of the hearing, although she testified that she would be moving into a new apartment the following week, with the assistance of her father and a boyfriend, and presented evidence that she had paid a deposit toward that apartment. On September 20, 2011, the trial court entered its order terminating Mother’s parental rights to D.K. Mother now appeals.

Analysis

Before turning to the merits of this appeal, we wish to discuss an evidentiary matter that could have impeded our review of the case. At the outset of the termination hearing, DCS requested that the trial court take judicial notice of the underlying CHINS proceedings and the trial court agreed to do so. Additionally, in its brief DCS relates facts that apparently are based on documents filed in the CHINS action, namely a “Preliminary Inquiry” and a “Motion to Modify the Dispositional Decree.” Appellee’s Br. pp. 4-5. These facts are not supported by any evidence actually introduced at the termination of parental rights (“TPR”) hearing. Moreover, neither party provided these cited documents, or any documents from the CHINS proceedings, to us in an appendix.

Until recently, the general rule in Indiana was that “a trial court may not take judicial notice even of its own records in another case previously before the court on a related subject with related parties.” Gray v. State, 871 N.E.2d 408, 413 (Ind.Ct.App.2007), trans. denied. However, effective January 1, 2010, Indiana Evidence Rule 201(b) was amended to provide that a court may take judicial notice of “records of a court of this state.... ” Thus, the trial court here did not err in taking judicial notice of the CHINS proceedings at the outset of the TPR hearing.

Still, we have noted, in the context of a post-conviction relief (“PCR”) hearing, the problems that the revision to Rule 201(b) can present for appellate review. In Graham v. State, 941 N.E.2d 1091, 1097 (Ind.Ct.App.2011), aff'd on reh’g, 947 N.E.2d 962 (Ind.Ct.App.2011), the post-conviction court indicated that it was going to take judicial notice of the record of the underlying criminal trial, and it did in fact rely on that record in denying the post-conviction relief petition. However, the original trial record was not made part of the post-conviction record on appeal. We stated in our original opinion, “regardless of the nales regarding judicial notice, any material relied upon by a trial court in deciding a case should be made part of the record for appeal purposes.” Graham, 941 N.E.2d at 1097 n. 2. On rehearing, we further explained:

[I]f a PCR court does in fact, on its own initiative or at the request of a party, take judicial notice of other court records in ruling upon a PCR petition, those records should be made part of the PCR record.... We also emphasize that if a PCR court purports to take judicial notice of other court records and relies upon those records in ruling upon a PCR petition, but those records are not made part of the PCR record, it places a substantial burden upon this court on appeal to either track down those records and have them transmitted to this court, or to attempt to decide the case without benefit of those records.

Graham, 947 N.E.2d at 964-65.

TPR cases are similar to PCR cases in that they often must refer to and rely heavily upon records in different, but related, proceedings, i.e., a CHINS proceeding in a TPR case and an original criminal trial in a PCR case. In that respect, what we noted in Graham applies equally here, and in fact in any situation where a trial court takes judicial notice of records of another court proceeding in deciding a case. Evidence Rule 201(b) now allows trial courts to take judicial notice of records of other court proceedings, but if a court does so, there must be some effort made to include such “other” records in the record of the current proceeding. Furthermore, if a party on appeal wishes to rely on parts of the “other” record or records in making an argument before this court, it should include those parts in an appendix submitted to this court under Indiana Appellate Rule 50.

Here, it would have aided our appellate review if DCS had provided us with copies of documents it was relying upon in its appellate brief, particularly those indicating the conditions that initially led to D.K.’s removal from Mother’s care. Nonetheless, we have determined that we are able to adequately review the arguments in this case and will proceed to do so.

“When reviewing the termination of parental rights, we do not reweigh the evidence or judge witness credibility.” In re I.A., 934 N.E.2d 1127, 1132 (Ind.2010). We consider only the evidence and reasonable inferences most favorable to the judgment. Id. “We must also give ‘due regard’ to the trial court’s unique opportunity to judge the credibility of the witnesses.” Id. (quoting Indiana Trial Rule 52(A)). Where a trial court enters findings of fact and conclusions thereon, as the trial court did here, we apply a two-tiered standard of review. Id. “First, we determine whether the evidence supports the findings, and second we determine whether the findings support the judgment.” Id. We will set aside the trial court’s judgment only if it is clearly erroneous, which occurs if the findings do not support the trial court’s conclusions or the conclusions do not support the judgment. Id.

A petition to terminate a parent-child relationship must allege:

(A)that one (1) of the following is true:
(i) The child has been removed from the parent for at least six (6) months under a dispositional decree.
(ii) A court has entered a finding under IC 31-34-21-5.6 that reasonable efforts for family preservation or reunification are not required, including a description of the court’s finding, the date of the finding, and the manner in which the finding was made.
(iii) The child has been removed from the parent and has been under the supervision of a county office of family and children or probation department for at least fifteen (15) months of the most recent twenty-two (22) months, beginning with the date the child is removed from the home as a result of the child being alleged to be a child in need of services or a delinquent child;
(B) that one (1) of the following is true:
(i) There is a reasonable probability that the conditions that resulted in the child’s removal or the reasons for placement outside the home of the parents will not be remedied.
(ii) There is a reasonable probability that the continuation of the parent-child relationship poses a threat to the well-being of the child.
(iii) The child has, on two (2) separate occasions, been adjudicated a child in need of services;
(C) that termination is in the best interests of the child; and
(D) that there is a satisfactory plan for the care and treatment of the child.

Ind.Gode § 31-35-2-4(b)(2). DCS has the burden of proving these allegations by clear and convincing evidence. I.A., 934 N.E.2d at 1133.

Of the factors listed in Section 31-35-2-4(b)(2)(B), the trial court based the termination of Mother’s parental rights solely on the basis that the conditions that led to D.K’s removal and placement outside Mother’s home would not be remedied. On appeal, Mother challenges only that finding. She does not allege that an insufficient amount of time had passed before termination, or that termination is not in D.K’s best interests, or that there is not a satisfactory plan for his care and treatment.

When deciding whether there is a reasonable probability that the conditions leading to a child’s removal will not be remedied, a trial court must judge a parent’s fitness to care for his or her child at the time of the termination hearing and take into consideration evidence of changed conditions. In re J.T., 742 N.E.2d 509, 512 (Ind.Ct.App.2001), trans. denied. Additionally, a court may consider not only the basis for a child’s initial removal from the parent’s care, but also any reasons for a child’s continued placement away from the parent. In re A.I., 825 N.E.2d 798, 806 (Ind.Ct.App.2005), trans. denied. The court may also consider the parent’s habitual patterns of conduct, as well as evidence of a parent’s prior criminal history, drug and alcohol abuse, history of neglect, failure to provide support, and lack of adequate housing and employment. McBride v. Monroe County Office of Family and Children, 798 N.E.2d 185, 199 (Ind.Ct.App.2003). Additionally, the court may consider any services offered by the DCS to the parent and the parent’s response to those services. Id. “Finally, we must be ever mindful that parental rights, while constitutionally protected, are not absolute and must be subordinated to the best interests of the child when evaluating the circumstances surrounding termination.” Id.

The reason for D.K’s initial removal from Mother’s care was neglect related to him being left with an inappropriate caregiver and there being a lack of appropriate food and clothing in the residence. Additionally, Mother was on the verge of being evicted from that residence when DCS investigated the neglect report. We also note that although D.K. was placed back in Mother’s care and custody while she resided at a group home, she was unable to maintain custody of D.K. because she willingly did not comply with certain rules of the home. Mother later had the possibility of caring for D.K. again when she lived in Louisville, but she declined DCS’s offer to help make those arrangements.

There is clear and convincing evidence that the conditions that led to D.K’s initial removal and continued placement outside of Mother’s care would not be remedied. In over two years, Mother never completed any of the recommendations or requirements of the CHINS dispositional order. She never completed a required parenting class, despite being given multiple opportunities to do so. She also failed to maintain a stable residence, having lived in no fewer than eight places during the two years of the CHINS proceedings. Even at the TPR hearing, Mother did not seem to comprehend the importance of a stable residence, testifying, “I don’t stay in one place, to be honest.” Tr. p. 34. She also testified that she frequently stayed with friends for periods of a few weeks at a time, but she did not consider such stays as actually living with that person. Mother’s residential instability made it difficult for the CASA to keep track of her.

Mother also squandered her opportunity to reunite with D.K. while living at the group home with him. Instead of focusing on completing parenting classes while there and doing what needed to be done to permanently reunite with her son, she instead, as she admitted in her testimony, knowingly violated rules of the home related to alcohol possession and having boyfriends spend the night. This indicates that Mother was more concerned with her own desires than with D.K’s welfare. Mother also demonstrated a lack of interest in D.K. when she declined assistance in arranging to live with him while in Louisville.

Mother points to evidence that she was preparing to move into an apartment shortly after the TPR hearing as evidence that she was remedying the conditions that led to D.K’s removal. We cannot agree that this evidence by itself, even if undisputed, is sufficient to reverse the trial court’s judgment. It is a parent’s habitual pattern of conduct that must be considered in determining whether to terminate parental rights, and a trial court is not required to accept evidence of a last-minute change in conditions as trumping evidence of years of a different pattern of behavior. Mother’s living situation had been highly unstable for over two years and, simply put, there was no guarantee that her move into the new apartment would last any longer than any of her previous living situations. This is especially true, given that Mother was unemployed at the time of the TPR hearing, as she had been for much of the CHINS proceedings. Mother never obtained her GED. She also had to quit the best job she had — the full-time position at Kroger — because of her continued residential instability, i.e., she moved too far away from the store and transportation became a problem.

In sum, there is ample evidence that Mother took little to no steps to correct the problems that led to D.K’s removal and continued placement outside her care. Even after she was given a “second chance” at not having her parental rights terminated following the January 2011 hearing, she failed to take even the initial step of meeting with the service provider counselor. The trial court’s finding that there was a reasonable probability that the conditions leading to D.K’s removal would not be remedied was not clearly erroneous.

Conclusion

There is sufficient evidence to support the termination of Mother’s parental rights. We affirm.

Affirmed.

FRIEDLANDER, J., and MAY, J., concur.

      . DCS provides many more details regarding what it allegedly found at this time regarding O.K.’s care but we do not relate them here, for reasons we discuss later in this opinion. The facts we have stated regarding D.K.'s removal come from testimony at the termination of parental rights hearing and a finding in the trial court's termination order, which Mother does not challenge.

      . Father does not appeal this determination.

      . We note that the other matters of law of which a trial court take judicial notice under Evidence Rule 201(b) include decisional, constitutional, and statutory law, rules of court, published agency regulations, codified ordinances, and laws of other governmental subdivisions of the United States or of any state, territory, or other jurisdiction of the United States. These types of matters are equally accessible by trial and appellate courts, or by the general public for that matter. By contrast, we have very limited access to, in this instance, the content of filings located in Floyd County.

      . Minor changes to this statute, none of which would be relevant here, are set to take effect on July 1, 2012. See Ind. P.L. 48-2012 § 66.


text:
    Fred N. MARTINEZ, Appellant-Cross/Appellee, v. Susan K. DEETER, Appellee-Cross/Appellant.
    No. 32A01-1108-DR-359.
    Court of Appeals of Indiana.
    May 31, 2012.

      Cassandra A. Kruse, Emswiller Williams Noland & Clarke, P.C., Indianapolis, IN, Attorney for Appellant.
    Jaimie L. Cairns, Ruppert & Schaefer, P.C., Indianapolis, IN, Attorney for Appel-lee.
   OPINION

BARNES, Judge.

Case Summary

Fred Martinez (“Father”) appeals the trial court’s child support modification order, and Susan Deeter (“Mother”) cross-appeals the trial court’s child support modification order. We affirm in part, reverse in part, and remand.

Issues

Father raises three issues on appeal, which we consolidate and restate as whether the trial court erred when it calculated child support owed by him for 2007. On cross-appeal, Mother raises four issues, which we consolidate and restate as:

I. whether the trial court erred by including the children’s Social Security survivor benefits in her weekly gross income for purposes of child support and post-secondary education expenses;
II. whether the trial court erred by denying Mother’s request for attorney fees; and
III. whether the trial court erred by ordering that the child support ar-rearage owed by Father be paid first to Mother’s attorneys.

Facts

In July 2002, Father and Mother divorced. Mother was awarded custody of the parties’ three children, and Father was ordered to pay child support. Mother was disabled, and Mother and the children received Social Security payments based on Mother’s disability. Mother subsequently remarried.

On March 20, 2007, Mother filed a petition to modify child support. In October 2007, the parties entered into an Agreed Entry that provided Father would pay child support to Mother in the amount of $387.00 per week commencing on March 20, 2007. The parties noted that Father was “having an exceptional year in 2007 income wise as he [had] earned in excess of $292,000.00 year-to-date and his projected yearly income for 2007 [was] in excess of $314,000.00.” Appellant’s App. p. 23. For child support purposes, the parties “agreed to use $100,000.00 for [Father’s] annual income,” “compute what [Mother was] entitled to for 2007 from [Father’s] irregular income consisting of bonuses and commissions,” and “determine what percentage [Mother was] entitled to therein for 2007 and thereafter.” Id. at 24. The parties also agreed that they would “report back to the Court by way of agreement or request a further hearing to determine what [Mother was] entitled to in regard to [Father’s] excess income and in regard to attorney fees to be paid by [Father] on behalf of [Mother].” Id. at 25.

In August 2007, Mother's husband died, and she learned that she and the two youngest children qualified for Social Security survivor benefits (“survivor benefits”). However, they could not receive both survivor benefits and disability benefits, and they chose to receive the survivor benefits, which were more than the disability benefits.

In December 2007, Father filed a petition for modification of custody of the parties’ oldest child. In April 2009, Father filed a petition for emancipation regarding the parties’ oldest child. Evidentiary hearings were held in June 2009, December 2010, April 2011, and May 2011 regarding many issues, including child support for 2007 through 2011, the amount of Father’s tax rate used to calculate his 2007 child support, custody and emancipation of the parties’ oldest child, postsecondary education expenses, calculation of the parties’ incomes, reimbursement of medical expenses, and attorney fees. The trial court entered extensive findings of fact and conclusions thereon, including the following:

29. On October 3, 2007 the parties entered into an Agreed Entry modifying Father’s child support obligation to $387.00 a week.
30. The 2007 Agreed Entry also provided that the “parties will compute what Wife is entitled to for 2007 from Husband’s irregular income from 2007 consisting of bonuses and commissions^”]
31. Father’s gross income in 2007 was $318,157.93.
32. Father’s excess income over that for which child support was calculated is $218,157.93.
33. The Child Support Guidelines use a tax rate of 21.88% and provide that a court may deviate from guideline amounts when evidence is substantiated at the support hearing. See Indiana Child Support Guideline 1, Commentary Gross versus Net Income.
34. Father requested the Court take into account the excess tax he paid in 2007 and to create a reduction factor of 11.08% of his gross income, when determining his income for child support purposes. See Exhibit 19.
35. Mother submitted evidence to the Court taking into account Father’s excess tax paid in 2007 to create a reduction factor. See Exhibit 1 and Exhibit 59(a).
36. Father owes $51,267.13 for the additional support based on the irregular income.
37. In 2007, Mother received social security benefits in regards to her disability for herself and for the benefit of all three minor children.
38. On or about August 2007, Mother filed with the Social Security administration to change the nature of the benefits her children received, from disability benefits derived from her, to survivorship benefits derived from her husband.
39. Father has requested the benefits Mother receives for both herself and her children be included in Mother’s gross income for the purposes of calculating child support.
40. Mother has requested the benefits Mother receives on behalf of her children be excluded from her gross income for the purposes of calculating child support.
41. Both parties submitted briefs on the issue of whether or not the survivorship benefits should be included in Mother’s gross income.
42. The Court finds that the survivor-ship benefits should be included in Mother’s gross income as of October 2007 and Mother’s weekly gross income as of October 5, 2007 was $740.00 a week.
43. The Court finds that from March 20, 2007 (the date Mother filed her Petition to Modify) until October 3, 2007 Father’s child support obligation should have been $574.00 a week.
44. The Court finds after Mother started receiving increased benefits on October 5, 2007, that Father’s Child Support Obligation should have been $525.50 a week.
45. The Court finds that after Father became the primary physical custodian of [the oldest child] on or about November 2, 2007, that Father’s support obligation should have been $419.00 a week.
46. Father’s total support obligation from the date Mother filed her Petition to Modify, March 20, 2007 until December 31, 2007 was $22,477.50 (or $387.00 for 28 weeks, $525.50 for 9 weeks, and $419.00 for 4 weeks). See Exhibit 20.
47. From March 20, 2007 until December 31, 2007 Father paid Mother $15,255.00, therefore Father has an arrearage of $7,222.50 of support for 2007.
⅝ ⅜ ⅝ 'k ⅝ ⅝
63. Father overpaid Mother $5,688.80 in 2008. See Exhibit 22.
* * * * * *
73. Father overpaid Mother $6,090.24 in 2009.
* * * ⅜ * *
83. Father overpaid Mother $6,090.24 in 2010.
* ⅜ * sj: *
92. At the time of the May 2, 2011 hearing Father had overpaid Mother $1,756.80 in 2011 for support.
93. From 2007 until the time of the May 2, 2011 hearing Father owes Mother $38,863.55.
* * * * * *
102. Mother has requested Father contribute to all of the children’s post secondary educational expenses.
⅜ ⅝ ⅝ ⅜ ⅜ :|:
106. The Court finds that after scholarships, grants and aid, each child shall be responsible for 10% of the cost of any post secondary educational expenses (including tuition, reasonable fees related to tuition, books, room and board) and thereafter parties shall split the same with Father paying 75% and Mother paying 25% thereafter.
⅜ ⅜ ⅜ ⅜ ⅜ ⅜
111. Mother has requested Father be responsible for her attorney fees incurred in this matter.
112. Mother’s former attorney, Bob Wood, submitted an invoice to the Court for attorney fees in the amount of $16,930.00. See Exhibit 16.
113. Some of these fees were in regards to discovery requests and Mother’s request for reimbursement for medical expenses (including preparation for the exhibits on the same). See Exhibit 16.
114. Many of the exhibits in regards to medical expenses Mother submitted were patently incorrect although purporting to be for a single year included expenses for several years.
115. Mother testified and Father agreed, that prior to Mother submitting her Petition to the Court for reimbursement of medical expenses, she had never informally requested Father reimburse her for the same.
116. Father served discovery requests on Mother on or about July 7, 2008 in order to prepare for this matter.
117. Mother failed to respond to the same and Father was forced to file a motion to compel on October 28, 2008 which the Court granted and compelled Mother to respond to the same on or before November 1, 2008.
118. Mother failed to comply with the Court’s order and did not serve her responses to Father’ discovery requests until after that date.
119. Mother’s actions in failing to cooperate in discovery, failing to address her request for reimbursement of medical expenses to Father in an informal matter pri- or to submitting the same to formal litigation, and requesting Father reimburse her for various expenses with no basis have caused Father a great deal of unnecessary attorney fees. See Exhibit 66.
120. Each party shall be responsible for their own attorney fees incurred in this matter.
121. Father shall pay the $38,863.55 no later than July 15, 2011. That amount shall be paid to Mother’s attorney to be placed in Ms. Szczerbik’s Trust Account and be distributed to pay Mother’s attorney fees to Mr. Wood’s and Ms. Szczerbik’s attorney fees [sic]; then the balance shall be released to Mother.

Appellant’s App. pp. 18-22.

Both Father and Mother filed motions to correct error, which the trial court denied. Father now appeals, and Mother cross-appeals.

Analysis

The main focus of .this appeal is the trial court’s calculation of child support. “A trial court’s calculation of child support is presumptively valid.” Young v. Young, 891 N.E.2d 1045, 1047 (Ind.2008). A trial court’s decision regarding child support will be upheld unless the trial court has abused its discretion. Sexton v. Sedlak, 946 N.E.2d 1177, 1188 (Ind.Ct.App.2011), trams, denied. A trial court abuses its discretion when its decision is clearly against the logic and the effect of the facts and circumstances before the court or if the court has misinterpreted the law. Id. Additionally, our standard of review is governed by the trial court’s decision in this case to enter findings of fact and conclusions of law. Id. In such instances, we “shall not set aside the findings or judgment unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of witnesses.” Id. (quoting Ind. Trial Rule 52(A)). It appears that the trial court issued the findings and conclusions sua sponte, and where the trial court enters such findings and conclusions sua sponte, the specific findings control only as to the issues they cover. Id. A general judgment standard applies to any issue upon which the trial court has not found, and we may affirm a general judgment on any theory supported by the evidence adduced at trial. Id.

I. Father’s 2007 Child Support

We first address Father’s arguments regarding his 2007 child support obligation. Father argues that the trial court erred in calculating the child support he owed on his 2007 bonuses, that the trial court erred by failing to adjust his effective tax rate, and that the trial court erred by making inconsistent findings.

Father first argues that the trial court erred when it calculated child support he owed in 2007 due to his bonuses. In March 2007, Mother filed a petition to modify child support, and in October 2007, the parties entered into an Agreed Entry that provided Father would pay child support to Mother in the amount of $387.00 per week commencing on March 20, 2007. The parties noted that Father was “having an exceptional year in 2007 income wise as he [had] earned in excess of $292,000.00 year-to-date and his projected yearly income for 2007 [was] in excess of $314,000.00.” Appellant’s App. p. 23. For child support purposes, the parties “agreed to use $100,000.00 for [Father’s] annual income,” “compute what [Mother was] entitled to for 2007 from [Father’s] irregular income consisting of bonuses and commissions,” and “determine what percentage [Mother was] entitled to therein for 2007 and thereafter.” Id. at 24. The parties also agreed that they would “report back to the Court by way of agreement or request a further hearing to determine what [Mother] is entitled to in regard to [Father’s] excess income....” Id. at 25. The parties were unable to reach an agreement as to the child support Mother was entitled to receive as a result of Father’s income in excess of $100,000.

The Indiana Child Support Guidelines address irregular income from bonuses and provide:

When the court determines that it is appropriate to include irregular income, an equitable method of treating such income may be to require the obligor to pay a fixed percentage of overtime, bonuses, etc., in child support on a periodic but predetermined basis (weekly, biweekly, monthly, quarterly) rather than by the process of determining the average of the irregular income by past history and including it in the obligor’s gross income calculation.
One method of treating irregular income is to determine the ratio of the basic child support obligation (line 4 of the worksheet) to the combined weekly adjusted income (line 3 of the worksheet) and apply this ratio to the irregular income during a fixed period. For example, if the basic obligation was $110.00 and the combined income was $650.00, the ratio would be .169 ($110.00 / $650.00). The order of the court would then require the obligor to make a lump sum payment of .169 of the obligor’s irregular income received during the fixed period.
The use of this ratio will not result in an exact calculation of support paid on a weekly basis. It will result in an overstatement of the additional support due, and particularly so when average irregular income exceeds $250.00 per week or exceeds 75% of the regular adjusted Weekly Gross Income. In these latter cases the obligor may seek to have the irregular income calculation redetermined by the court.

Ind. Child Support Guideline 3(A), cmt. 2(b).

The trial court heard evidence that Father’s 2007 income was $318,157.93. Thus, Father’s excess income over that for which child support was calculated was $218,157.93. In Exhibit 59(a), Mother alleged that Father owed $51,267.13 in child support for 2007. Mother reached this result by multiplying $218,157.93 by 0.235, which is the ratio of the basic child support obligation to the combined weekly adjusted income from October 2007. See Exhibit 1 & Exhibit 59(a). This calculation did not take into account the fact that the parties’ oldest child resided with Father beginning in November 2007 or the fact that Mother’s income 'changed in October 2007. Mother’s calculation in Exhibit 59(a) also did not take into account Father’s proposed adjusted effective tax rate. Relying on Mother’s calculations in Exhibit 59(a), the trial court concluded that “Father owes $51,267.13 for the additional support based on the irregular income.” Appellant’s App. p. 18.

Despite this finding, the trial court also found:

43. The Court finds that from March 20, 2007 (the date Mother filed her Petition to Modify) until October 3, 2007 Father’s child support obligation should have been $574.00 a week.
44. The Court finds after Mother started receiving increased benefits on October 5, 2007, that Father’s Child Support Obligation should have been $525.50 a week.
45. The Court finds that after Father became the primary physical custodian of [the oldest child] on or about November 2, 2007, that Father’s support obligation should have been $419.00 a week.
46. Father’s total support obligation from the date Mother filed her Petition to Modify, March 20, 2007 until December 31, 2007 was $22,477.50 (or $387.00 for 28 weeks, $525.50 for 9 weeks, and $419.00 for 4 weeks). See Exhibit 20.
47. From March 20, 2007 until December 31, 2007 Father paid Mother $15,255.00, therefore Father has an arrearage of $7,222.50 of support for 2007.

Id. at 19. This calculation is based on Father’s Exhibit 20. Father did not rely on a percentage of his excess income in making this calculation. Instead, Father used his final annual income adjusted by an increased effective tax rate to calculate the weekly child support.

The trial court made conflicting findings on the child support owed by Father for 2007. The trial court found both that Father owed $51,267.13 and also that he owed $7,222.50. As a result, we reverse and remand for the trial court to recalculate Father’s 2007 child support obligation. In doing so, we note that the parties agreed in their March 2007 Agreed Entry to use a percentage to calculate Father’s child support owed, and the Commentary to Indiana Child Support Guideline 3 suggests this as one possible method of calculating such support. See Appellant’s App. p. 24 (“The parties will determine what percentage [Mother] is entitled to therein for 2007 and thereafter.”); see also Child Supp. G. 3(A), cmt. 2(b). The parties were simply unable to reach an agreement as to the percentage amount. As the Commentary notes, the percentage calculation described in the Commentary may result in an overstated child support obligation, and the “obligor may seek to have the irregular income calculation redetermined by the Court.” Child Supp. G. 3(A), cmt. 2(b). Given the parties’ Agreed Entry and the Commentary, it would have been proper to calculate Father’s additional 2007 child support by using a percentage amount, and the percentage amount used by the trial court on remand is within the trial court’s discretion.

Father also argues that the trial court should have adjusted his tax rate because he paid more in taxes in 2007 than the assumed rate found in the Child Support Guidelines. The Commentary to Indiana Child Support Guideline 1 provides:

One of the policy decisions made by the Judicial Administration Committee in the early stages of developing the Guidelines was to use a gross income approach as opposed to a net income approach. Under a net income approach, extensive discovery is often required to determine the validity of deductions claimed in arriving at net income. It is believed that the use of gross income reduces discovery. (See Commentary to Guideline 3A). While the use of gross income has proven controversial, this approach is used by the majority of jurisdictions and, after a thorough review, is considered the best reasoned.
The basic support obligation would be the same whether gross income is reduced by adjustments built into the Guidelines or whether taxes are taken out and a net income option is used. A support guideline schedule consists of a column of income figures and a column of support amounts. In a gross income methodology, the tax factor is reflected in the support amount column, while in a net income guideline, the tax factor is applied to the income column. In devising the Indiana Guidelines, an average tax factor of 21.88 pércent was used to adjust the support column.
Of course, taxes vary for different individuals. This is the case whether a gross or net income approach is used. Under the Indiana Guideline, where taxes vary significantly from the assumed rate of 21.88 percent, a trial court may choose to deviate from the guideline amount where the variance is substantiated by evidence at the support hearing.

Here, Father argued that his effective tax rate was 32.96% for 2007. The trial court found:

38. The Child Support Guidelines use a tax rate of 21.88% and provide that a court may deviate from guideline amounts when evidence is substantiated at the support hearing. See Indiana Child Support Guideline 1, Commentary Gross versus Net Income.
34. Father requested the Court take into account the excess tax he paid in 2007 and to create a reduction factor of 11.08% of his gross income, when determining his income for child support purposes. See Exhibit 19.
35. Mother submitted evidence to the Court taking into account Father’s excess tax paid in 2007 to create a reduction factor. See Exhibit 1 and Exhibit 59(a).

Appellant’s App. p. 18. However, the trial court never specifically found that it would apply the adjusted tax rate and, in fact, appears to have used Exhibit 59(a), which did not take the excess tax into account. It is unclear whether the trial court intended to use Father’s proposed adjusted tax rate, and the trial court should clarify that issue on remand.

II. Social Security Survivor Benefits

We next address Mother’s cross-appeal argument that the trial court erred by using the survivor benefits received by the children in calculating Mother’s weekly gross income. Beginning in late 2007, Mother and the two youngest children received survivor benefits in the amount of $1,210.00 per month for Mother and $1,014.00 per month for each of the two youngest children as a result of the death of Mother’s husband. The trial court here found: “The Court finds that the survivor-ship benefits should be included in Mother’s gross income as of October 2007 and Mother’s weekly gross income as of October 5, 2007 was $740.00 a week.” Appellant’s App. p. 19. On appeal, Mother argues that the trial court erred by including the $1,014 per month received by each of the two children in her weekly gross income.

The Indiana Child Support Guideline regarding calculation of a parent’s weekly gross income provides:

For purposes of these Guidelines, “weekly gross income” is defined as actual Weekly Gross Income of the parent if employed to full capacity, potential income if unemployed or underemployed, and imputed income based upon “in-kind” benefits. Weekly Gross Income of each parent includes income from any source, except as excluded below, and includes, but is not limited to, income from salaries, wages, commissions, bonuses, overtime, partnership distributions, dividends, severance pay, pensions, interest, trust income, annuities, capital gains, social security benefits, workmen’s compensation benefits, unemployment insurance benefits, disability insurance benefits, gifts, inheritance, prizes, and alimony or maintenance received from other marriages. Social Security disability benefits paid for the benefit of the child must be included in the disabled parent’s gross income. The disabled parent is entitled to a credit for the amount of Social Security disability benefits paid for the benefit of the child. Specifically excluded are benefits from means-tested public assistance programs, including, but not limited to, Temporary Aid To Needy Families (TANF), Supplemental Security Income, and Food Stamps. Also excluded are survivor benefits received by or for other children residing in either parent’s home.

Child Supp. G. 3(A)(1) (emphasis added). The Commentary to Guideline 3(A) provides:

In calculating Weekly Gross Income, it is helpful to begin with total income from all sources. This figure may not be the same as gross income for tax purposes. Internal Revenue Code of 1986, § 61. Means-tested public assistance programs (those based on income) are excluded from the computation of Weekly Gross Income, but other government payments, such as Social Security benefits and veterans pensions, should be included. However, survivor benefits paid to or for the benefit of their children are not included. In cases where a custodial parent is receiving, as a representative payee for a prior born child, Social Security survivor benefits because of the death of the prior born child’s parent, the court should carefully consider Line 1 C of the basic child support obligation worksheet, Legal Duty of Support for Prior-born Children. Because the deceased parent’s contribution for the support of the prior born child is being partially paid by Social Security survivor benefits that are excluded from Weekly Gross Income, the court should not enter, on Line 1C, an amount that represents 100% of the cost of support for the prior born child. The income of the spouses of the parties is not included in Weekly Gross Income.

Child Supp. G. 3(A), cmt. 2 (emphasis added).

The Child Support Guidelines and Commentary do not address the exact situation here — whether survivor benefits paid to children due to the death of a custodial parent’s subsequent spouse are/or should be included in the custodial parent’s weekly gross income — and no Indiana cases address this situation. Father argues that the Guideline conflicts with the Commentary, i.e., the Guideline excludes “survivor benefits received by or for other children residing in either parent’s home” but the Commentary excludes “survivor benefits paid to or for the benefit of their children,” and that we should include the survivor benefits in Mother’s weekly gross income. Child Supp. G. 3(A) & cmt. 2 (emphasis added).

We acknowledge that the Guideline and the Commentary contain different language. Despite the differing language in the Guideline and Commentary, we conclude that the language of the Child Support Guidelines and Commentary indicate that survivor benefits received by or for children are not includable in a parent’s weekly gross income. Further, we note that the Guidelines and Commentary specifically exclude income from a parent’s spouse in the calculation of a parent’s weekly gross income. See Child Supp. G. 3(A), cmt. 2. The purpose of the children’s survivor benefits here is to replace income lost by the death of Mother’s husband. Inclusion of the children’s survivor benefits in Mother’s weekly gross income would result in a windfall to Father. As a result, we conclude that the trial court erred when it included the survivor benefits received by the children due to their stepfather’s death in the calculation of Mother’s weekly gross income. This determination will necessitate a recalculation of the child support obligations for 2007 through the present time.

Although we conclude that survivor benefits received by the children should not be included in Mother’s weekly gross income, Mother concedes that, if the children had continued receiving disability benefits due to Mother’s disability, those funds would have been includable in Mother’s weekly gross income. The Commentary to Guideline 3(G) provides: “Social Security benefits paid to a parent for the benefit of a minor child are included in the disabled parent’s Gross Weekly Income for purposes of determining child support regardless of which parent actually receives the payment.” The record indicates that the two youngest children each received $200 per month based on Mother’s disability prior to the death of Mother’s husband. Mother requests that, on remand, the trial court “exclude the survivor benefits from her income and include only the disability benefits the children would have received had they not received the survivor benefits.” Appellee’s Br. p. 12. We agree that this income should be imputed to Mother and direct the trial court to do so on remand.

Finally, in calculating post-secondary education expenses, the trial court ordered “that after scholarships, grants and aid, each child shall be responsible for 10% of the cost of any post secondary educational expenses (including tuition, reasonable fees related to tuition, books, room and board) and thereafter parties shall split the same with Father paying 75% and Mother paying 25% thereafter.” Appellant’s App. p. 21. “If the trial court determines that an order for college expenses is appropriate, the parents’ contributions shall be roughly proportional to their respective incomes.” Borum v. Owens, 852 N.E.2d 966, 969 (Ind.Ct.App.2006). Mother argues that the 75/25 split is roughly proportional to Father and Mother’s income if the children’s survivor benefits are included in Mother’s income. We direct the trial court to recalculate the appropriate ratio of post-secondary education expenses to be paid by Mother and Father given our determination that the children’s survivor benefits should not be included in Mother’s weekly gross income.

III. Attorney Fees

Next, Mother argues that the trial court abused its discretion when it failed to order Father to pay her attorney fees in this matter. Indiana Code Section 31-16-11-1, the statute regarding attorney fees in child support matters, is discretionary. Whited v. Whited, 859 N.E.2d 657, 665 (Ind.2007). A determination regarding attorney fees in proceedings to modify a child support award is within the sound discretion of the trial court and will be reversed only upon a showing of a clear abuse of that discretion. Id. In determining whether to award attorney fees, the trial court must consider the parties’ resources, their economic condition, their ability to engage in gainful employment, and other factors that bear on the award’s reasonableness. Id. The trial court may also consider any misconduct on the part of either of the parties that creates additional legal expenses not otherwise anticipated. Redd v. Redd, 901 N.E.2d 545, 554 (Ind.Ct.App.2009).

The trial court here ordered the parties to pay their own attorney fees. Mother argues that the trial court abused its discretion because her income is substantially less than Father’s income. However, in denying Mother’s request for attorney fees, the trial court cited Mother’s “actions in failing to cooperate in discovery, failing to address her request for reimbursement of medical expenses to Father in an informal matter prior to submitting the same to formal litigation, and requesting Father reimburse her for various expenses with no basis.” Appellant’s App. p. 22. Mother argues that she was not required to seek an informal resolution, but she does not dispute that she failed to cooperate in discovery and requested improper reimbursements. She also argues that her conduct did not warrant an entire rejection of her request for attorney fees. However, this determination was within the trial court’s discretion, and we cannot say that the trial court abused its discretion here.

IV. Payment to Attorneys

Finally, Mother argues that the trial court erred by ordering the child support judgment in her favor to be paid first to her attorneys, Wood and Szczer-bik. The trial court concluded:

Father shall pay the $38,868.55 no later than July 15, 2011. That amount shall be paid to Mother’s attorney to be placed in Ms. Szczerbik’s Trust Account and be distributed to pay Mother’s attorney fees to Mr. Wood’s and Ms. Szczerbik’s attorney fees [sic]; then the balance shall be released to Mother.

Appellant’s App. p. 22.

On appeal, Mother argues that neither Wood nor Szczerbik filed an attorney lien under Indiana Code Section 33-43-4-2 and that the trial court did not have authority to order the payment of attorney fees out of the judgment. Neither party has cited any authority, nor have we found any authority, that would permit the payment of Mother’s attorney fees directly out of her child support judgment in the absence of a lien. On remand, Mother’s attorneys should provide clear authority to the trial court, if any exists, to support the withholding of their attorney fees from Mother’s child support judgment.

Conclusion

The trial court erred by making conflicting findings regarding Father’s 2007 child support and by including survivor benefits received by the children in the calculation of Mother’s weekly gross income. However, we affirm the trial court’s denial of Mother’s request for attorney fees. We affirm in part, reverse in part, and remand for proceedings consistent with this opinion.

Affirmed in part, reversed in part, and remanded.

BAKER, J., and BROWN, J., concur.

      . Although we are addressing Father’s 2007 child support obligation, neither party argues that we should apply the Indiana Child Support Guidelines or Commentary applicable during 2007. The Guidelines and Commentary underwent significant changes effective January 1, 2010. Both Mother and Father refer only to the revised Guidelines and Commentary.

      . The inclusion of survivor benefits received by Mother in her weekly gross income is not at issue here.

      . We acknowledge, however, that under the Commentary to Child Support Guideline 3(A), income may be imputed "to a parent whose living expenses have been substantially reduced due to financial resources other than the parent’s own earning capabilities....”

      . In her Reply Brief, Mother argues that she never had the chance to question the reasonableness of her attorneys fees. Mother did not raise this issue in her Appellee's Cross-appeal Brief and has waived the issue. See Kelly v. Levandoski, 825 N.E.2d 850, 858 (Ind.Ct.App.2005) (noting that appellants are not allowed to present new arguments in reply briefs and that any argument not raised in the initial brief is waived), trans. denied.

      . Father cites Reeder v. Reeder, 917 N.E.2d 1231 (Ind.Ct.App.2009), for the proposition that such an order is appropriate. Although the trial court in Reeder issued a similar order in dissolution proceedings, the payment of attorney fees out of a child support award was not an issue on appeal, and we do not find Reeder persuasive here.

      .Indiana Code Section 31 — 16—11—1(b) provides: “The court may order the amount to be paid directly to the attorney, who may enforce the order in the attorney’s name.” However, Mother asked that Father be ordered to pay her attorney fees under this statute, and the trial court denied her request. Consequently, this statute is inapplicable here.