text:
    Anthony E. BOYD, Appellant-Plaintiff, v. WHTIV, INC. and Walter Tarr, IV, Appellees-Defendants.
    No. 49A05-1303-PL-107.
    Court of Appeals of Indiana.
    Nov. 5, 2013.
    Rehearing Denied Dec. 12, 2013.

      Hannah L. Thompson, Matthew Derringer, Ronald E. Weldy, Weldy & Associates Indianapolis, IN, Attorneys for Appellant.
    Michael L. Einterz, Jr., Einterz & Ein-terz, Zionsville, IN, Attorney for Appel-lees.

      . We note that attorney Ronald E. Weldy ("Weldy”) filed the Notice of Appeal and Appellant's Brief in this matter. Pursuant to a subsequently-issued Indiana Supreme Court Order published July 23, 2013 (“July 23 order”), Weldy was suspended from the practice of law for 180 days total, with 90 days to be actively served and the rest stayed subject to probation, effective August 16, 2013. Appellant’s Reply Brief initially reflected that service was made and the Reply Brief was filed on August 16, and Employer filed a Motion to Strike the Reply Brief. Thereafter, Boyd filed a Motion to Correct Scrivener’s Error, indi- , eating the Reply Brief was served and filed on August 15, prior to Weldy’s suspension. On October 3, 2013 we granted Boyd’s Motion to Correct Scrivener’s Error and denied Employer's Motion to Strike the Reply Brief.

   OPINION

KIRSCH, Judge.

After the trial court denied Anthony E. Boyd’s (“Boyd”) motion for an extension of time to respond to the summary judgment motion filed by defendants WHTIV, Inc. and Walter Tarr, IV (collectively “Employer”), and it thereafter granted Employer’s summary judgment motion, Boyd filed a motion to correct error, which the trial court denied. He now appeals, raising two issues that we restate as:

I. Whether the trial court erred when it determined that Indiana Trial Rule 6(E), which extends by three days the deadline to respond following service by United States mail, did not apply to summary judgment proceedings and Boyd’s motion for . extension of time to respond to Employer’s summary judgment motion therefore was not timely filed; and
II. Whether Boyd is entitled to appellate attorney fees relative to Employer’s Motion for Involuntary Dismissal of Appeal.

We reverse and remand.

FACTS AND PROCEDURAL HISTORY

In September 2012, Boyd filed a complaint against Employer for actual and statutory damages pursuant to the Fair Labor Standards Act and the Minimum Wage Act, alleging that Employer failed to pay him overtime premiums during his employment. On November 7, 2012, Employer filed a motion for summary judgment, and it served Boyd with the motion by United States mail. Thirty-three days later, on December 10, 2012, Boyd filed a Motion to Extend Opposition to Defendants’ Motion for Summary Judgment, in which he sought additional time to respond to the summary judgment motion in order to review and complete discovery concerning Employer’s motion and Boyd’s response thereto, as well as determine the appropriateness of filing his own cross-motion for summary judgment. Employer objected to this request for additional time to respond, asserting that because Boyd did not respond or request additional time within thirty days, ie. by December 7, his request was not timely, and his motion must be denied. On December 14, the trial court denied Boyd’s motion for extension of time, and it also granted Employer’s motion for summary judgment.

Thereafter, Boyd filed a motion to correct error, asserting that his December 10 request for additional time to respond to the summary judgment motion was timely because Indiana Trial Rule 6(E) extended by three days the deadline to respond since the November 7 motion for summary judgment was served upon him by mail. The trial court denied Boyd’s motion to correct error, stating: “Motion to correct error denied. Motion for extension of time was untimely.” Appellant’s App. at 5. He now appeals.

DISCUSSION AND DECISION

Boyd appeals from the denial of his motion to correct error. Rulings on motions to correct error are typically reviewable under an abuse of discretion standard; however we review the matter de novo when the issue on appeal is purely a question of law. State v. Gonzalez-Vazquez, 984 N.E.2d 704, 706 (Ind.Ct.App.2013) (citing Ind. Bureau of Motor Vehicles v. Charles, 919 N.E.2d 114, 116 (Ind.Ct.App. 2009)), tram, denied. In this case, as in Gonzalez-Vazquez,

The motion to correct error ultimately relates back to whether the trial court should consider [Boyd’s] response to be timely pursuant to Trial Rule 56 and Trial Rule 6(E). There is no dispute concerning the dates of service or any of the parties’ motions. Accordingly, a legal issue is presented.

984 N.E.2d at 706.

I. Timeliness of Boyd’s Request for Extension of Time

This appeal presents the question of whether Indiana Trial Rule 6(E) extends the date by which the non-movant must respond to a summary judgment motion or request an extension of time to respond. Employer’s position is that any motion for extension of time to respond to a motion for summary judgment must comply with the thirty-day deadline provided in Indiana Trial Rule 56(F) or Trial Rule 56(1) and that the three-day extension of time provided by Trial Rule 6(E) does not apply. Upon review of the relevant statutes and recent case law, we disagree.

Initially, we begin with Indiana Trial Rule 56(C) and observe that it states, in pertinent part, “An adverse party shall have thirty (30) days after service of the motion to serve a response and any opposing affidavits.” (Emphasis added.) By its terms, Trial Rule 56(C) recognizes that the response time is not thirty days from the date of the filing of the motion; rather, it is thirty days from the date of sendee on the recipient. Likewise, our trial rules specifically provide for additional time for service by mail. Trial Rule 6(E) states:

Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon him and the notice or paper is served upon him by United States mail, three [3] days shall be added to the prescribed period.

Indeed, a review of Indiana case law reveals that Trial Rule 6(E)’s three-day extension of time is permitted and calculated into the required response time for summary judgment motions. For instance, in City of Mishawaka v. Kvale, 810 N.E.2d 1129 (Ind.Ct.App.2004), we recognized,

[Bjecause the Estate served its motion for summary judgment via mail, City had an additional three days to respond. See T.R. 6(E). Because City’s response and designation of evidence was filed after the thirty-three days had expired, the trial court did not abuse its discretion by striking City’s response and designated materials.

Id. at 1134. Similarly, in Starks Meek, Inc. v. New Albany-Floyd Cnty. Consol. Sch. Corp., 854 N.E.2d 936 (Ind.Ct.App.2006), we recognized,

Indiana Trial Rule 56(C) provides that the nonmovant has thirty days after being served with a motion for summary judgment to serve a response and any opposing affidavits. Trial Rule 6(E) provides that when a motion is served by mail, an additional three days shall be added to the prescribed period.

Id. at 939.

Nevertheless, here, Employer asserts that the three-day extension granted by Trial Rule 6(E) does not apply to Trial Rule 56 motions for summary judgment because Trial Rule 56 exclusively controls the timing of summary judgment proceedings. In support of this position, Employer relies on this court’s decision in DeLage Landen Financial Services, Inc. v. Community Mental Health Center, 965 N.E.2d 693 (Ind.Ct.App.2012), trans. denied. There, DeLage, a lessor of copy machines, moved for summary judgment on its complaint against lessee Community Mental Health Center (“CMHC”). DeLage’s motion for summary judgment was filed on March 15, 2011. On May 27, 2011, CMHC, the nonmovant, moved for enlargement of time to respond pursuant to Indiana Trial Rule 6(B)(2), which allows a trial court to permit an act to be done after the expiration of the time period if the failure to act was the result of excusable neglect, namely to be an inexperienced employee who did not properly schedule the due date for the response. The trial court in DeLage allowed CMHC’s belated response and denied DeLage’s motion for summary judgment, and DeLage appealed.

In its analysis, the DeLage court examined our Supreme Court’s decision in HomEq Servicing Corp. v. Baker, 883 N.E.2d 95, 98-99 (Ind.2008), where the court stated;

When a nonmoving party fails to respond to a motion for summary judgment within 30 days by either filing a response, requesting a continuance under Trial Rule 56(1), or filing an affidavit under Trial Rule 56(F), the trial court cannot consider summary judgment filings of that party subsequent to the 30-day period.

DeLage, 965 N.E.2d at 697. As the De-Lage court noted, however, the non-mov-ant in HomeEq never requested an enlargement of time under Indiana Trial Rules, whereas CMHC did request an enlargement under Trial Rule 6(B)(2). The DeLage court thus focused on the conflict, if any, between Trial Rule 56(1), which states that “for cause found, the Court may alter any time limit set forth in this rule upon motion made within the applicable time limit” and the extension of time provision of Trial Rule 6(B)(2). The De-Lage court ultimately determined that Trial Rule 6(B)(2) does not apply to summary judgment materials, and CMHC’s belated response should not have been permitted. DeLage, 965 N.E.2d at 698.

One year later, this court in Gonzalez-Vazquez addressed the scope of the De-Lage decision in a factual context strikingly similar to the one we face today. There, in postconviction proceedings, Vazquez filed a motion for summary judgment on July 17, 2012. The motion was served on the State by certified mail. On August 20, 2012, the State filed a request for an extension of time in which to file a response to the motion for summary judgment. The trial court granted the State’s request, the State thereafter filed a response on August 24, and Vazquez’s motion for summary judgment was denied. Vazquez filed a motion for reconsideration arguing that the State’s August 20 request for enlargement of time and its subsequent response were both untimely. Like Employer in the present case, Vazquez, relying upon DeLage, argued that Trial Rule 56 exclusively controls timing of summary judgment filings. The post-conviction court agreed with Vazquez and concluded that the State had failed to request an enlargement of time within thirty days as provided by Trial Rule 56(1) and that no days could be added to the thirty-day period due to mail service; it struck the State’s response and it granted Vazquez’s motion for summary judgment.

The State filed a motion to correct error, contending that its motion for enlargement of time, which was filed thirty-four days after the summary judgment motion, was timely because the State was entitled to add three days for mail service and the thirty-third day had fallen on a Sunday. The post-conviction court rejected that argument. The State appealed.

In our Gonzalez-Vazquez decision, we determined that, to the extent that the postconviction court had understood De-Lage to mean that no provision of Trial Rule 6 could be applicable in summary judgment proceedings, the post-conviction court had interpreted the import of De-Lage “too broadly.” Gonzalez-Vazquez, 984 N.E.2d at 707. Indeed, as the Gonzalez-Vazquez court noted, the DeLage court had referred to and relied upon Trial Rule 6(E):

On March 15, 2011 [DeLage] filed a motion for summary judgment and designation of evidence. Pursuant to Trial Rule 56(C), CMHC had thirty days — or until April 18, 2011 including the three-day extension for service by mail — to file a response.

Id. at 708 (quoting DeLage, 965 N.E.2d at 695 and adding emphasis). The DeLage court footnoted Trial Rule 6(E) as the source of the permitted three-day extension. DeLage, 965 N.E.2d at 695 n. 1. The Gonzalez-Vazquez court concluded that the post-conviction court erred as a matter of law when it excluded the State’s request for an extension of time as being untimely, and it reversed the grant of summary judgment in favor of Vazquez. Gonzalez-Vazquez, 984 N.E.2d at 708.

Gonzalez-Vazquez — which Employer neither distinguishes nor cites to-guides our decision today, and we hold that the three-day extension of time provided by Trial Rule 6(E) applies in the context of Boyd’s request for an extension of time to respond to Employer’s motion for summary judgment. Consequently, as applied here, Boyd’s request for extension of time to respond was not untimely, and the trial court should not have denied his motion to correct error. See id. (reversing trial court’s denial of State’s motion to correct error).

Further, Boyd argues, and we agree, that because he sought, but was denied, additional time to complete discovery, the trial court’s grant of summary judgment in Employer’s favor was premature. As we have recognized, summary judgment proceedings are not substitutes for trials on the merits and motions for summary judgment should only be granted where the parties have adequate time to complete discovery. Collins v. HSBC Bank USA, Nat’l Ass’n, 974 N.E.2d 537, 541 (Ind.Ct.App.2012) (recognizing that trial courts generally will not grant summary judgment when there are pending discovery requests that might impact court’s ability to decide motion). Accordingly, we reverse both the trial court’s denial of Boyd’s motion to correct error and its grant of summary judgment in Employer’s favor. Gonzalez-Vazquez, 984 N.E.2d at 708.

II. Attorney Fees

Lastly, we address Boyd’s pending Verified Motion for Appellant Fees (“verified motion”), in which Boyd seeks to recover attorney’s fees incurred in opposing Employer’s Motion for Involuntary Dismissal of Appeal (“motion for dismissal”), which this court ultimately denied. A brief procedural backdrop is warranted.

After Boyd filed his notice of appeal with this court, Employer filed the motion for dismissal, asserting that Boyd had failed to timely file a motion to correct error with the trial court, and because that motion was not timely, his notice of appeal likewise was not timely, and his appeal should be dismissed. Specifically, Employer explained, judgment was entered in this case on December 14, 2012, and Boyd “attempted to file” a motion to correct error on January 14, 2013, thirty-one days later, but, Employer maintained, Boyd was required to file his notice of appeal or motion to correct error no later than January 13, 2013. Boyd filed a response to Employer’s motion for dismissal, advising that January 13, 2013 was a Sunday, and thus his motion filed on January 14, 2013 was timely pursuant to Indiana Trial Rule 6(A) and further claiming that Employer’s motion for dismissal was frivolous. This court denied Employer’s motion for dismissal.

Following our denial of Employer’s motion for dismissal, Boyd filed the verified motion pursuant to Indiana Appellate Rule 66, arguing that given Indiana Trial Rule 6(A)’s directive that a party is given another day to file a pleading if the deadline falls on a Sunday, Employer’s motion for dismissal “intentionally ignored the Trial Rules” and was “void of all plausibility,” and Boyd asked this court to order Employer to pay $1,575 incurred in reviewing the motion for dismissal, communicating with Employer’s counsel to seek a voluntary withdrawal of the motion, drafting a response to the motion, and drafting the verified motion. Employer responded and opposed the verified motion. This court ordered that the motion for attorney fees was to be held in abeyance for later determination by the writing panel.

Indiana Appellate Rule 66(E) provides in part that this court “may assess damages if an appeal, petition, or motion, or response, is frivolous or in bad faith. Damages shall be in the Court’s discretion and may include attorneys’ fees.” Baila-ban v. Bloomington Jewish Cmty., Inc., 982 N.E.2d 329, 339 (Ind.Ct.App.2013). Our discretion is limited to instances of “meritlessness, bad faith, frivolity, harassment, vexatiousness, or purpose of delay.” Id. A strong showing is required to justify an award of appellate damages and the sanction is not imposed to punish mere lack of merit but something more egregious. Harness v. Schmitt, 924 N.E.2d 162, 168 (Ind.Ct.App.2010). Upon review, we find that Employer’s motion for dismissal fits more into the former “lack of merit” category than into the latter “something more egregious” one.

The crux of Employer’s motion for dismissal was that Boyd’s motion to correct error was not timely filed because the time requirements of Trial Rule- 59 were not subject to automatic extension by operation of Trial Rule 6, and consequently, Boyd’s notice of appeal was not timely filed. Employer’s motion for dismissal thus presented a legal argument, supported by cogent argument and citation. Although we ultimately did not accept Employer’s position and denied his motion for dismissal, we are not persuaded that the motion for dismissal was permeated with vexatiousness or harassment sufficient to support an award of fees under Appellate Rule 66(A). We thus deny Boyd’s verified motion for fees.

Reversed and remanded for further proceedings.

ROBB, C.J., and RILEY, J., concur.

      . Indiana Trial Rule 6(B)(2) provides: "When an act is required or allowed to be done at or within a specific time by these rules, the court may at any time for cause shown: ... upon motion made after the expiration of the specific period, permit the act to be done where the failure to act was the result of excusable neglect; but, the court may not extend the time for taking any action for judgment on the evidence under Rule 50(A), amendment of findings and judgment under Rule 52(B), to correct errors under Rule 59(C), statement in opposition to motion to correct error under Rule 59(E), or to obtain relief from final judgment under Rule 60(B), except to the extent and under the conditions stated in those rules.”

      . As stated, the trial court’s order denying the motion to correct error reflected that the denial was based upon the fact that the request for an extension of time was not timely filed. Appellant’s App. at 5. However, to the extent that the trial court’s denial of Boyd’s motion for enlargement of time was based on the merits of the motion, the trial court abused its discretion; the civil proceedings had just recently commenced, discovery had timely begun, and the request for more time was reasonable under the circumstances.

      . We note that Employer's motion for dismissal was not initially accepted for filing because it was defective for failing to file the required number of copies. Upon Notice of Defect from the Clerk, Employer filed the appropriate number of copies of his motion.


source: Caselaw Access Project

author: VAIDIK, Judge.

license: Public Domain

text:
    In the Matter of the Termination of the Parent-Child Relationship of S.L. & D.L. (Minor Children) and K.M., (Mother) & D.L., (Father), Appellants/Respondents, v. The INDIANA DEPARTMENT OF CHILD SERVICES, Appellee/Petitioner.
    No. 85A02-1304-JT-308.
    Court of Appeals of Indiana.
    Nov. 5, 2013.

      Benjamin D.R. Vanderpool, Vanderpool Law Firm, P.C., Warsaw, IN, Attorney for Appellants.
    Gregory F. Zoeller, Attorney General of Indiana, Robert J. Henke, Christine Re-delman, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

VAIDIK, Judge.

Case Summary

In late 2011 and early 2012, a trial court held three hearings to determine whether KM.’s (“Mother”) and D.L.’s (“Father”) parental rights to their son and daughter should be terminated. The State presented its evidence at the first two hearings, and Mother presented her evidence at the third hearing. Father was incarcerated in federal prison' and federal authorities would not allow him to attend the hearings or participate by phone. The parties agreed that Father would receive a transcript of the State’s evidence against him (the first two hearings) and he would have two months to respond through counsel. After receiving the transcript of the State’s evidence, Father chose not to respond or present additional evidence.

The trial court ultimately terminated Mother’s and Father’s parental rights. On appeal, Mother and Father challenge the sufficiency of the trial court’s findings. They also challenge the court’s conclusion that the conditions resulting in the children’s removal from their care will not be remedied. We conclude that the trial court’s findings of fact are sufficient and the evidence warrants termination in this case. Father also argues, belatedly, that his due-process rights were violated because he was not permitted to attend the hearings and was not given a transcript of the third hearing, at which Mother presented her evidence. But Father makes this due-process argument for the first time on appeal; thus, this argument is waived. Waiver aside, Father agreed to this procedure and was ably represented by counsel throughout the proceedings. Father fails to establish how he was prejudiced — much of Mother’s evidence overlapped with the State’s evidence, and Father received a transcript of the State’s evidence. And he makes no argument that the outcome would have been different had he also received a transcript of the third hearing, at which Mother presented her evidence. We affirm.

Facts and Procedural History

In early 2011, Mother took four-year-old D.L. and three-year-old S.L. to a Wabash County Department of Child Services (“WCDCS”) office. She told WCDCS employees that she could not care for the children and that in frustration, she had struck D.L. in the face. WCDCS took custody of the children and filed a petition alleging that they were children in need of services (“CHINS”).

Mother admitted the CHINS allegations. At a separate hearing, Father also admitted the allegations. At the time, Father, who had been convicted of child molesting, was incarcerated. He was released at the end of January 2011. To facilitate reunification with the children, Mother and Father were ordered not to use drugs and to participate in a variety of services, including substance-abuse assessments, random drug screens, individual counseling, parenting assessments, and other home-based services. The parents were also ordered to participate in supervised parenting time with the children.

Father was sent back to prison shortly after his release for violating the terms of his parole. While he was incarcerated, Mother obtained a protective order against him based on allegations of past domestic violence. Mother also claimed that Father had sexually molested the parties’ older daughter K.H., and Mother said she worried that he might molest S.L. or D.L. Based on these allegations and Father’s child-molesting conviction, WCDCS filed a motion to suspend Father’s parenting time. The trial court granted the motion.

Mother’s participation in services was sporadic and ultimately unsuccessful. Several times, Mother tested positive for marijuana, methamphetamine, and synthetic drugs. Mother failed to complete individual counseling, home-based services, and the required parenting assessment. She also failed to attend supervised parenting time regularly. WCDCS filed a petition to terminate Mother’s and Father’s parental rights.

Father was released from prison again in February 2012. One month later he was arrested at Mother’s home for violating the protective order and failing to register as a sex offender. He was incarcerated for the duration of the termination proceedings.

The trial court heard evidence on the termination petition over two days in August and September 2012 and a third day in February 2013. WCDCS requested that Father be transported to court for the hearings or allowed to participate by phone, but those requests were denied by federal authorities. Before the first hearing, WCDCS, Mother, Mother’s counsel, and Father’s counsel met with the trial court to discuss alternate ways in which Father could participate. The parties ultimately agreed that WCDCS would present its evidence at the first and second hearings, and the trial court would then have a transcript prepared and sent to Father, who would have two months to review the transcript and communicate with counsel. Mother would present her evidence at the third hearing.

At the first two hearings, WCDCS presented evidence regarding the parents’ troublesome relationship and their failure to complete services. Specifically, Mother continued to be involved with Father despite his child-molesting conviction and her belief that he had molested one of their children. She referred to him as a “sick, sick man” who “has a problem masturbating to children.” Tr. p. 93, 147. Mother also failed to successfully complete court-ordered services and used drugs, particularly marijuana, throughout the termination proceedings, despite being ordered not to do so. According to Mother, marijuana was a “friend, family member, a way of life.” Id. at 59. When asked if she would stop smoking marijuana, Mother said she did not know. Id. at 152.

Father made a similar lack of progress toward reunification. He completed a parenting assessment, but no other services. Service providers testified that they could not work with Father due to his repeated incarceration. When Father received the transcript of the evidence presented by WCDCS, he indicated that he did not intend to “present any additional evidence in opposition to what had been previously testified to at the hearing[s].” Id. at 161.

Mother’s circumstances had changed by the third hearing. She was incarcerated on drug-related charges and awaiting trial, but she was able to attend the hearing. She told the court that she had participated in some drug-related services in prison and now understood that she could not smoke marijuana. Mother again referred to Father as a threat to children, but when asked if she would cut ties with Father in the future, she gave conflicting answers. Id. at 186-97. She asked the trial court to “hold off’ on terminating her parental rights. Id. at 180.

In March 2013, the trial court terminated Mother’s and Father’s parental rights. Appellants’ App. p. 21-24. Mother and Father now appeal.

Discussion and Decision

On appeal, Father argues that his due-process rights were violated because he was not permitted to attend the termination hearings and was not given a transcript of the third hearing, at which Mother presented her evidence. Jointly, Mother and Father challenge the sufficiency of the trial court’s findings and the court’s conclusion that the conditions resulting in the children’s removal will not be remedied.

I. Due Process

Father argues that his due-process rights were violated because he was not permitted to attend the termination hearings and was not given a transcript of the third hearing, at which Mother presented her evidence. But Father did not challenge this procedure at the trial level; instead, he raises his due-process argument for the first time on appeal.

The State must satisfy the requirements of the Due Process Clause of the Fourteenth Amendment to the United States Constitution when it seeks to terminate the parent-child relationship. Castro v. State Office of Family & Children, 842 N.E.2d 367, 375 (Ind.Ct.App.2006) (citation omitted), trans. denied. Due process in parental-rights cases involves the balancing of three factors: (1) the private interests affected by the proceeding; (2) the risk of error created by the State’s chosen procedure; and (3) the countervailing government interest supporting the use of the challenged procedure. In re C.G., 954 N.E.2d 910, 917 (Ind.2011) (citing A.P. v. Porter Cnty. Office of Family & Children, 734 N.E.2d 1107, 1112 (Ind.Ct.App.2000), reh’g denied, trans. denied.). The private interest affected by the proceeding is substantial — a parent’s interest in the care, custody, and control of his or her child. Id. (citation omitted). And the State’s interest in protecting the welfare of a child is also substantial. Id. Because the State and the parent have substantial interests affected by the proceeding, we focus on the risk of error created by DOS’s actions and the trial court’s actions. Id.

Any procedural irregularities in a CHINS proceeding may be of such significance that they deprive a parent of procedural due process with respect to the termination of his or her parental rights. A.P., 734 N.E.2d at 1112-13. Nevertheless, a parent may waive a due-process claim in a CHINS or termination proceeding by raising that claim for the first time on appeal. McBride v. Monroe Cnty. Office of Family & Children, 798 N.E.2d 185, 194-95 (Ind.Ct.App.2003); see also In re K.S., 750 N.E.2d 832, 834 n. 1 (Ind.Ct.App.2001) (by raising issue for first time on appeal, mother waived due-process claim that trial court violated her rights in failing to follow statutory requirements governing permanency hearings, case plans, and dispositional orders). Father never raised any due-process claim at the trial level; therefore, he has waived his constitutional challenge with respect to the termination proceedings. See McBride, 798 N.E.2d at 194-95.

Waiver notwithstanding, we cannot agree that Father was denied due process because he was not permitted to attend the termination hearings. Father was incarcerated in federal prison at the time and federal authorities refused to allow him to attend the hearings or participate by phone. The trial court did not decide that Father could not attend; the matter was entirely out of the trial court’s control. Because Father could not attend, he was given a transcript of the State’s evidence (the first two hearings), and had two months to review the transcript and communicate with counsel. And Father was ably represented by counsel at all three hearings. See Tillotson v. Clay Cnty. Dep’t of Family & Children, 777 N.E.2d 741, 746 (Ind.Ct.App.2002) (Proper- representation by counsel in a termination proceeding significantly decreases the risk of an inaccurate result.), trcms. denied. In light of these facts, and because our Courts have held that there is no absolute right to be present at a termination hearing, we cannot say that Father was denied due process simply because he was not permitted to attend the hearings. See C.G., 954 N.E.2d at 921 (surveying other jurisdictions and concluding that there is no absolute right to attend a termination hearing).

However, Father also challenges the alternative procedure used to facilitate his participation at the hearings. In C.G., our Supreme Court noted that if a parent cannot attend a termination hearing, a trial court may “eontinu[e] the hearing after the State has presented its case and allow [ ] the parent time to review a transcript or audio tape of the hearing and then respond to allegations raised by the State’s witnesses.” Id. at 920 (citing Tillotson, 777 N.E.2d at 746). That is what the parties agreed to do in this case. Despite this agreement, Father now argues that his due-process rights were violated because he did not receive a transcript of the third hearing, at which Mother presented her evidence. For a number of reasons, we disagree.

Father claims that “because no later transcript of Mother’s evidence was sent to [Father], he was not given the opportunity to hear or respond to any evidence or testimony presented by [Mother].” Appellants’ Br. p. 23. This is not accurate. Mother testified at the second hearing, during the State’s case. At the second hearing, she discussed Father’s sexual tendencies toward children at length, saying that Father was a threat to children, including his own. Tr. p. 143,150. She also discussed the protective order against Father, id. at 143, and said that Father “has a problem masturbating to children,” id. at 147. Father received a transcript of this testimony but chose not to respond to it or to present additional evidence. Nor did he, through counsel, request a transcript and time to respond when Mother testified similarly at the third hearing, during the presentation of her evidence.

The State and the parent have substantial interests affected by termination proceedings; thus, the factor at issue is the risk of error. We conclude that the risk of error here was low. Father received a transcript of the State’s evidence — which included Mother’s testimony about him at the second hearing — and had two months to respond through counsel. He was ably represented by counsel at all three hearings, which significantly decreased the risk of an inaccurate result. Moreover, Father fails to establish how he was prejudiced— he makes no argument that the outcome would have been any different had he also received a transcript of the third hearing, at which Mother presented her evidence.

When considering due process in termination cases, our Courts have long recognized that parental rights “constitute an important interest warranting deference and protection,” while simultaneously acknowledging that “children have an interest in terminating parental rights that prevent adoption and inhibit establishing secure, stable, long-term, continuous relationships.” C.G., 954 N.E.2d at 917 (citations omitted). Having considered Father’s rights at length, we also note that his children, S.L. and D.L., have a significant interest in securing permanency and finality. We conclude that Father’s due-process rights were not violated in this case.

II. Trial Court’s Findings of Fact

The parents argue that the trial court’s findings of fact are erroneous because they are simply a recitation of the evidence presented during the termination hearings. “A court or an administrative agency does not find something to be a fact by merely reciting that a witness testified to X, Y, or Z.” Parks v. Delaware Cnty. Dep’t of Child Servs., 862 N.E.2d 1275, 1279 (Ind.Ct.App.2007) (citation omitted). Instead, “[a] finding of fact must indicate, not what someone said is true, but what is determined to be true, for that is the trier of fact’s duty.” Id. “[T]he trier of fact must adopt the testimony of the witness before the ‘finding’ may be considered a finding of fact.” Id. (citation omitted).

We do not agree that the trial court’s findings are merely a recitation of the evidence presented at the termination hearings. While the order references evidence, it also contains thoughtful findings that flow from that evidence. For example, the trial court found that

Mother has put her relationship with [F]ather and her desire to smoke marijuana above the interests of her children, her protestations to the contrary notwithstanding. At times she professes love for [F]ather while also acknowledging his multitude of problems. She has described him as a “sick, sick man.” She claims she will no longer be in a relationship with him when he is released. That is beyond belief and her past actions underscore the lack of credibility of such a claim.
Remarkably, Father, when not incarcerated, was better at complying with services than Mother[,] though not fully compliant. However his history underscores his instability. He is simply bad for the children. It is wholly against their interests to be reunited with either Mother or Father. The parents’ issues consume their lives, to the detriment of their children.

Appellants’ App. p. 23. The order also contains detailed findings regarding Mother’s demeanor during the termination hearings:

Mother’s behavior throughout these proceedings was somewhat bizarre and she was admonished to control her behavior on more than one occasion. The court recognizes the emotional turmoil [that] hearings such as these can have on all the participants. However, Mother’s behavior appeared far more unusual than what the court usually observes. To say the least, Mother is very, very troubled and emotionally distraught. She does not seem to be in touch with reality.

Id. The termination order clearly identifies the reasons for terminating the parents’ rights in this case. We find no error here.

III. Termination of Parental Rights

The Fourteenth Amendment to the United States Constitution protects the traditional right of parents to establish a home and raise their children. In re LA., 934 N.E.2d 1127, 1132 (Ind.2010). “A parent’s interest in the care, custody, and control of his or her children is ‘perhaps the oldest of the fundamental liberty issues.’ ” Id. (quoting Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000)). “Indeed[,] the parent-child relationship is ‘one of the most valued relationships in our culture.’ ” Id. (quoting Neal v. DeKalb Cnty. Div. of Family & Children, 796 N.E.2d 280, 285 (Ind. 2003)). Nevertheless, parental rights are “not absolute and must be subordinated to the child’s interests when determining the proper disposition of a petition to terminate parental rights.” Id. (citing In re D.D., 804 N.E.2d 258, 264-65 (Ind.Ct.App.2004), trans. denied).

When reviewing the termination of parental rights, we will not reweigh the evidence or judge the credibility of the witnesses. Bester v. Lake Cnty. Office of Family & Children, 839 N.E.2d 143, 147 (Ind.2005) (citation omitted). In-' stead, we consider only the evidence and reasonable inferences that are most favorable to the judgment. Id. Here, the trial court made specific findings and conclusions in its termination order. When a trial court enters specific findings of fact and conclusions thereon, we apply a two-tiered standard of review. 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 court’s judgment terminating a parent-child relationship only if it is clearly erroneous. Id. Clear error is that which leaves us with a definite and firm conviction that a mistake has been made. In re A.B., 888 N.E.2d 231, 235 (Ind.Ct.App.2008) (citation omitted), trans. denied.

In Indiana, before parental rights may be involuntarily terminated, the State is required to allege and prove, among other things:

(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.Code § 31-35-2-4(b)(2). In addition, the State has the burden of pleading and proving each element of Indiana Code section 31-35-2-4(b) by “ ‘clear and convincing evidence’ ” before the trial court can involuntarily terminate parental rights. In re G.Y., 904 N.E.2d 1257, 1260-61 (Ind.2009) (quoting Ind.Code § 31-37-14-2), reh’g denied. On appeal, Mother and Father challenge the sufficiency of the evidence supporting the trial court’s judgment as to subsection (B)(i) of the termination statute detailed above. See I.C. § 31-35-2-4(b)(2)(B).

When determining if there is a reasonable probability that the conditions that resulted in the child’s removal or the reasons for placement outside the home will not be remedied, a trial court must judge the parent’s fitness to care for his or her child at the time of the termination hearing, taking into consideration evidence of changed conditions. In re I.A., 903 N.E.2d 146, 154 (Ind.Ct.App. 2009) (citations omitted). The court must also evaluate the parent’s habitual patterns of conduct to determine whether there is a substantial probability of future neglect or deprivation of the child. Id. Similarly, courts may consider evidence of a parent’s prior criminal history, drug and alcohol abuse, history of neglect, and failure to provide support. Id. The trial court may also consider the services offered to the parent and the parent’s response to those services as evidence of whether conditions will be remedied. Id.

The purpose of terminating parental rights is not to punish the parent but to protect the children involved. In re D.B., 942 N.E.2d 867, 872 (Ind.Ct.App.2011) (citing In re K.S., 750 N.E.2d at 832). The involuntary termination of parental rights is the most extreme sanction a court can impose on a parent because termination severs all of a parent’s rights to his or her children. Id. (citing In re R.H., 892 N.E.2d 144, 149 (Ind.Ct.App.2008)). “Termination of parental rights is therefore intended as a last resort, available only when all other reasonable efforts have failed.” Id.

A. Mother’s Rights

In determining that there is a reasonable probability that the conditions that resulted in the children’s removal or the reasons for placement outside the home will not be remedied, the trial court concluded that Mother put her own interests before her children’s. The court cited Mother’s drug use during the termination proceedings and her ongoing relationship with Father despite her concerns that he had molested one of their older children and posed a threat to D.L. and S.L. The court also explained that Mother made no progress in her ability to parent the children because she did not complete services. Finally, we note that Mother was incarcerated at the time of the final hearing and awaiting trial on drug-related charges.

In challenging the evidence underlying the trial court’s findings, Mother makes a number of claims. First, she argues that she voluntarily surrendered her children to WCDCS, which shows she is capable of exercising good judgment. But the trial court acknowledged this in its order. See Appellants’ App. p. 22 (“Mother brought the children to [WCDCS] ... because she was unable to care for them. She deserves credit for doing that.”). Mother also argues that her marijuana use is “not a sufficient reason” for terminating her parental rights. Appellants’ Br. p. 19. She claims that “there are many people in the United States that agree with her about marijuana” and cites the legalization of recreational marijuana use in other states as support for her claim. Id. Assuming for the sake of argument that this is true, Mother fails to acknowledge that recreational marijuana use is not legal in Indiana and, more importantly, that one of the prerequisites for reunification with her children was that she not use marijuana. Nonetheless, Mother used marijuana frequently during the termination proceedings.

Mother goes on to argue that at the time of the last termination hearing, she finally understood that using marijuana was illegal and that she had recently tested negative for all substances. But at that time, Mother was incarcerated and her access to illegal substances was limited. To the extent Mother suggests that she was putting her drug use behind her, the trial court was entitled to weigh her statements at the last hearing against her history of drug use. And we may not reweigh that evidence or assess the credibility of Mother’s testimony on appeal. Similarly, Mother’s remaining arguments regarding her use of synthetic cannabinoids and her relationship with Father are requests to reweigh the evidence, which we may not do.

B. Father’s Rights

In determining that there is a reasonable probability that the conditions that resulted in the children’s removal or the reasons for placement outside the home will not be remedied, the trial court found that Father made no progress in services because of his incarceration. Though the court found that he was more compliant in services than Mother, his history — particularly his repeated incarceration — was proof of his instability. The trial court concluded that Father was “simply bad for the children.” Appellants’ App. p. 23. He, too, was incarcerated at the time of the termination hearings.

Father argues that his inability to complete services due to incarceration is not a sufficient reason to terminate his parental rights. He compares his circumstances to those in M.W. v. Indiana Department of Child Services, 943 N.E.2d 848 (Ind.Ct.App.2011), trans. denied. The father in M.W. was incarcerated three times during CHINS and termination proceedings, with the final period of incarceration ending shortly after the trial court’s termination order. Id. at 855. The M.W. Court noted that the trial court focused on the father’s incarceration, parenting-time compliance, and lack of employment and residence. Id. But noting the father’s “many strides” in completing the reunification plan and his impending release following the termination hearing, the Court found that the father’s “ability to establish a stable and appropriate life upon release can be observed and determined within a relatively quick period of time.” Id. (quotation omitted). The Court reversed the termination of the father’s rights.

M.W. is distinguishable. Put simply, Father poses a specific threat to his children that was absent in M.W. He is a convicted child molester. Mother repeatedly stated that he is a threat to children. More importantly, she testified that he is a threat to his own children and recounted one instance in which Father stood above his sleeping child and masturbated. At the time of the hearings, the significant concerns about Father’s behavior toward children had not been addressed — much less remedied — due to his repeated incarceration.

We conclude that there is clear and convincing evidence to support the trial court’s findings and the court’s ultimate determination that there is a reasonable probability that the conditions that resulted in the children’s removal or the reasons for placement outside the home will not be remedied. We therefore affirm the trial court’s judgment terminating Mother’s and Father’s parental rights.

Affirmed.

BAKER, J., and FRIEDLANDER, J., concur.

      . The record does not reveal whom Father was convicted of molesting.

      . It seems these requests were denied because Father was "in transit,” and "nobody really kn[ew] where or what [federal] facility he [was] being transported to.” Tr. p. 5-6.

      . Mother later attempted to minimize her allegation that Father had molested K.H. by saying that Father had merely stood over the child and masturbated while the child slept. Tr. p. 144. There is no indication that Father was convicted of molesting K.H.; these appear to be separate incidents.


author: BRADFORD, Judge.

text:
    Christopher CROSS, Appellant/Defendant, v. STATE of Indiana, Appellee/Plaintiff.
    No. 73A01-1303-CR-134.
    Court of Appeals of Indiana.
    Nov. 6, 2013.

      Joel M. Schumm, Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, James B. Martin, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BRADFORD, Judge.

CASE SUMMARY

In August of 2006, Appellant-Defendant Christopher Cross engaged in the sale of cocaine in Shelby County. As a result of his actions, he was convicted of Class A felony dealing in cocaine, Class A felony possession of cocaine, Class D felony maintaining a common nuisance, Class A misdemeanor resisting law enforcement, Class A misdemeanor carrying a handgun without a permit, and Class C felony carrying a handgun without a permit after felony conviction. Cross was also found to have committed the acts necessary to warrant a sentence enhancement for using a firearm during the commission of a controlled substance offense, and was found to be a habitual offender. Cross was sentenced to an aggregate term of fifty years. Cross’s convictions and sentence were affirmed on direct appeal.

On January 81, 2013, Cross and Appel-lee-Plaintiff the State of Indiana filed a joint petition for post-conviction relief and request for resentencing. The joint petition was granted and, following resentenc-ing, Cross was sentenced to an aggregate term of thirty-eight years. On appeal, Cross contends that the classification of his acts of dealing in cocaine and possession of cocaine as Class A felonies was disproportionate to the nature of his offenses and that he suffered certain double jeopardy violations. We affirm in part, reverse in part, and remand to the trial court with instructions.

FACTS AND PROCEDURAL HISTORY

This court’s opinion in Cross’s prior direct appeal, which was handed down on July 9, 2008, instructs us as to the underlying facts leading to this subsequent direct appeal following resentencing:

In August 2006, Larry Sizemore assisted the Shelbyville Police Department by setting up a drug transaction involving Sizemore, Cross, and John Mellen-tine. Sizemore attempted to call Cross, from whom he had bought drugs in the past. When Sizemore reached Crosses] voice mail, Sizemore called Mellentine, who told Sizemore he could reach Cross. Mellentine telephoned Cross and told him that Sizemore wanted to purchase $200.00 worth of cocaine.
Cross and Mellentine drove to Size-more’s Shelbyville hotel room. Shelby-ville Police Department Officer Bart Smith was parked down the street at [a youth center], which was about 120 feet from the hotel. When Cross and Mel-lentine arrived at the hotel, Officer Smith radioed the officers that were hiding in Sizemore’s hotel bathroom. When Cross pulled a bag of cocaine out of his pocket, the police entered the room and yelled, “Police. Down.” Tr. at 120.
Cross reached for his waistband, which led Officer Ed Hadley to believe that Cross was reaching for a weapon. Officer Hadley tackled Cross, and the two men fell on the floor. Cross continued to struggle with the officer and reach for his waistband. After subduing Cross, Officer Hadley felt a gun slide down Crosses] leg. A subsequent search of Cross revealed the gun and three grams of cocaine. The State charged Cross with multiple counts. Following a bench trial, the court convicted Cross of all counts and adjudicated him to be an habitual substance offender as well as an habitual offender.
Following the sentencing hearing, the trial court “adopted” the following aggravating circumstances set forth in the presentence report: 1) Cross has a history of criminal behavior; 2) Cross is in need of correctional or rehabilitative treatment that can best be provided by commitment to a penal facility; and 3) Cross threatened the life of a witness/co-defendant by means of a letter. Appellant’s App. at 46. The court found no mitigating factors, and sentenced Cross to 1) thirty years for dealing in cocaine, 2) thirty years for possession of cocaine, 3) three years for maintaining a common nuisance, 4) one year for resisting law enforcement, and 5) eight years for carrying a handgun without a permit with a prior felony conviction, all sentences to run concurrently. The court enhanced Crosses] thirty-year sentence by twenty years for his habitual offender adjudication, for a total sentence of fifty years.

Cross v. State, 73A01-0709-CR^27 *1, 2008 WL 2673228 (Ind.Ct.App. July 9, 2008). On appeal, this court concluded that the evidence was sufficient to sustain Cross’s convictions and that the trial court did not err in sentencing Cross. Id. at *2-3.

On January 31, 2013, the State and Cross filed a joint petition for post-conviction relief and request to set the matter for resentencing. In this joint motion, the parties requested the trial court to vacate the habitual offender enhancement. The trial court granted the parties’ joint petition and, after a sentencing hearing held on March 1, 2013, resentenced Cross to an aggregate thirty-eight year sentence.

DISCUSSION AND DECISION

On appeal, Cross contends that the classification of his acts of possessing more than three grams of cocaine within 1000 feet of a youth program center with the intent to deliver as Class A felonies was disproportionate to the nature of his offenses. Cross also contends that he suffered certain double jeopardy violations.

I. Proportionality of Class A Felony Classification

Cross contends that the classification of his convictions for dealing in cocaine and possession of cocaine as a Class A felonies was disproportionate to the nature of his offenses. “Article I, Section 16, of the Indiana Constitution requires that ‘[a]ll penalties shall be proportioned to the nature of the offense.’ ” State v. Moss-Dwyer, 686 N.E.2d 109, 111 (Ind.1997) (brackets in original). In cases such as the instant matter, where the statutory

punishment of a single crime is alleged to be constitutionally disproportionate, our analysis is relatively straightforward. Id. (citing Conner v. State, 626 N.E.2d 803, 806 (Ind.1993)).

Indiana courts have consistently supported the proposition that “[t]he nature and extent of penal sanctions are primarily legislative considerations.... ” Person v. State, 661 N.E.2d 587, 593 (Ind.App.1996), trans. denied. Our separation of powers doctrine requires we take a highly restrained approach when reviewing legislative prescriptions of punishments. While legislative decisions do not completely escape review, “judicial review of a legislatively sanctioned penalty is very deferential.” Person, 661 N.E.2d at 593 (citing Conner, 626 N.E.2d at 806). We will not disturb the legislative determination of the appropriate penalty for criminal behavior except upon a showing of clear constitutional infirmity. [Steelman v. State, 602 N.E.2d 152,160 (Ind.Ct.App.1992) ]. As the court stated in Person, “When considering the constitutionality of a statute, we begin with the presumption of constitutional validity, and therefore the party challenging the statute labors under a heavy burden to show that the statute is unconstitutional.” 661 N.E.2d at 592 (citing Jackson v. State, 634 N.E.2d 532, 535 (Ind.App.1994)). A court is not at liberty to set aside the legislative determination as to the appropriate penalty merely because it seems too severe. Conner, 626 N.E.2d at 806; Clark v. State, 561 N.E.2d 759 (Ind.1990).

Id. at 111-12.

In adopting Indiana Code section 35-48-4-1(a), the General Assembly decreed that a person who knowingly or intentionally possesses cocaine with the intent to deliver commits dealing in cocaine, a Class B felony. However, the offense is a Class A felony if the amount of the drug involved exceeds three grams or the person delivered the drug in, on, or within 1000 feet of a school property, a public park, a family housing complex, or a youth program center. Ind.Code § 35-48-4-1(b). Here, the State alleged and the evidence presented during trial proved that Cross possessed, with the intent to deliver, more than three grams of cocaine within 1000 feet of a youth program center.

In raising the contention that the Class A felony classification for his act of possessing more than three grams of cocaine within 1000 feet of a youth program center with the intent to deal was disproportionate, Cross argues that the crimes of dealing in cocaine and possession of cocaine should not be classified as Class A felonies because the offenses lack the serious physical harm that is inherent in other Class A felony offenses. We disagree.

The Indiana Supreme Court has previously upheld the constitutionality of the “school-zone enhancement,” concluding that “the ‘violent and dangerous criminal milieu’ created by drug dealing and possession is a sufficient rationale to render [the enhancement] constitutional.” Polk v. State, 683 N.E.2d 567, 571 (Ind.1997) (quoting Reynolds/Herr v. State, 582 N.E.2d 833, 839 (Ind.Ct.App.1991)). In coming to this conclusion, the Indiana Supreme Court noted that

[t]he opinions of this Court are filled with tales of drug possession and dealing that spun out of control and erupted into violence. The conclusion is inescapable that the General Assembly believed that possession of cocaine or a Schedule IV controlled substance near a school, distinct from any effort to distribute them there, presented its own dangers to children. In short, it is within the legislature’s prerogative to determine that a drug-free zone deters possible spillover effects, and to provide enhanced penalties for controlled substance violations in proximity to schools.

Id. Accordingly, the Indiana Supreme Court held that the enhancement is rationally related to a legitimate legislative objective. Id. We conclude that this same rationale also applies to youth program centers.

Likewise, the Indiana Supreme Court has also previously upheld the constitutionality of the enhancement for possessing, with the intent to deliver, three grams or more. See Coleman v. State, 588 N.E.2d 1335, 1339 (Ind.Ct.App.1992) (citing Marts v. State, 432 N.E.2d 18, 22 (Ind.1982); Hall v. State, 273 Ind. 425, 434-35, 403 N.E.2d 1382, 1388 (1980)). Relying on the Indiana Supreme Court’s opinions in Marts and Hall, in Coleman, this court concluded that the Class A felony enhancement for possessing, with the intent to deliver, three grams or more did not violate the proportionality requirement of Article 1, Section 16 of the Indiana Constitution. Id. We find no reason to depart from the binding precedent established by Marts and Hall.

Moreover, we find Cross’s claim that the Class A felony classifications should be found to be disproportionate in light of the upcoming overhaul to the criminal classifications and sentencing structure, which has been approved by the General Assembly in House Enrolled Act 1006, to be unpersuasive. The upcoming overhaul to the criminal classifications and sentencing structure is scheduled to take effect on July 1, 2014. Nothing in House Enrolled Act 1006 suggests that the overhaul of the criminal classifications and sentencing structure should apply retroactively. To the contrary, House Enrolled Act 1006 indicates that crimes committed before July 1, 2014, should be charged and sentenced pursuant to the old classifications and sentencing structure. See HEA 1006 § 652. This language falls in line with the controlling Indiana precedent that states that courts must sentence defendants under the statute in effect at the time the defendant committed the offense. See Jacobs v. State, 835 N.E.2d 485, 491 n. 7 (Ind.2005).

Cross claims that by approving the overhaul, the General Assembly has shown that it believes that the Class A felony classifications were disproportionate be-' cause, under the criminal classifications and sentence structure that takes effect on July 1, 2014, dealing in cocaine and possession of cocaine will no longer qualify as the highest level of felonies in Indiana. We disagree. The overhaul of criminal classifications and sentence structure did not only affect drug crimes, but all crimes. As such, we believe that the overhaul represents a broad “revamp” of Indiana’s criminal system, not a statement regarding the proportionality of one singular criminal offense. Cross has failed to demonstrate that the Class A felony classifications of his act of possessing more than three grams of cocaine within 1000 feet of a youth program center with the intent to deliver constitutes a “clear constitutional infirmity,” and, accordingly, we reject Cross’s proportionality claim.

II. Double Jeopardy Concerns

A. Enhancement for Use of Handgun During Commission of Underlying Criminal Act

Next, Cross contends that his conviction for Class C felony carrying a handgun without a license and the sentence enhancement imposed due to Cross’s use of a firearm during the commission of the offense of dealing in cocaine violate the Indiana Constitution’s Double Jeopardy Clause.

That Clause, found in Article 1, Section 14 of the Indiana Constitution, “was intended to prevent the State from being able to proceed against a person twice for the same criminal transgression.” Richardson v. State, 717 N.E.2d 32, 49 (Ind.1999). Two or more offenses are the “same offense” in violation of the Indiana Double Jeopardy Clause, if, with respect to either the statutory elements of the challenged crimes or the actual evidence used to convict, the essential elements of one challenged offense also establish the essential elements of another challenged offense. Id. Under the “actual evidence” test, the evidence presented at trial is examined to determine whether each challenged offense was established by separate and distinct facts. Id. at 53. To show that two challenged offenses constitute the “same offense” in a claim of double jeopardy, a defendant must demonstrate a reasonable possibility that the evidentiary facts used by the fact-finder to establish the essential elements of one offense may also have been used to establish all of the essential elements of a second challenged offense. Spivey v. State, 761 N.E.2d 831, 833 (Ind.2002). To determine what facts were used, we consider the evidence, charging information, final jury instructions (if there was a jury), and arguments of counsel Goldsberry v. State, 821 N.E.2d 447, 459 (Ind.Ct.App.2005).

Stewart v. State, 866 N.E.2d 858, 863-64 (Ind.Ct.App.2007). In addition to the situations covered by Richardson, the Indiana Supreme Court has “long adhered to a series of rules of statutory construction and common law that are often described as double jeopardy” although not covered by the constitutional test set forth in Richardson. Guyton v. State, 771 N.E.2d 1141, 1143 (Ind.2002). One of these rules prevents conviction and punishment for both a criminal act and sentence enhancement where the enhancement is imposed for the very same behavior that constituted another crime for which the defendant has been convicted. Id.

In the instant appeal, Cross claims that the prohibition against double jeopardy was violated because he was convicted of carrying a handgun without a license and that his possession of the handgun was also the basis for the five-year sentence enhancement relating to his dealing in cocaine conviction. Thus, Cross argues that he was punished twice for the same act. While we agree that double jeopardy principles would prohibit double punishment for merely possessing the handgun in question, we find persuasive the State’s claim that the sentence enhancement did not violate the prohibition against double jeopardy because the enhancement was based not only on Cross’s possession of the handgun but also on Cross’s use of said handgun.

Indiana Code section 35-50-2-13 provides that the State may seek “to have a person who allegedly committed an offense of dealing in a controlled substance ... sentenced to an additional fixed term of imprisonment if the [S]tate can show beyond a reasonable doubt that the person knowingly or intentionally: (1) used a firearm; or (2) possessed a: (A) handgun ... while committing the offense.” Cross argues that this court should not consider his alleged use of the handgun because the State’s theory of separate conduct, ie., both possession and use, was not presented to the fact-finder through the charging information filed by the State or in the State’s closing argument. In the instant matter, the body of the charging information alleged that Cross possessed a handgun while committing the offense of dealing in cocaine. The charging information, however, did not limit the State’s claim that Cross committed the actions necessary to justify a sentence enhancement under Indiana Code section 35-50-2-13 by listing only the subsection relating to possession of a handgun. Furthermore, the evidence presented at trial varied from the language contained in the body of the charging information in that it tended to demonstrate that the State believed that the enhancement was proper in light of Cross’s use of the handgun in question.

It is well-established that not all variances between a charging information and the proof presented at trial are fatal. Daniels v. State, 957 N.E.2d 1025, 1029-30 (Ind.Ct.App.2011) (citing Mitchem v. State, 685 N.E.2d 671, 677 (Ind.1997)).

The test to determine whether a variance between the proof at trial and a charging information or indictment is fatal is as follows:
“(1) was the defendant misled by the variance in the evidence from the allegations and specifications in the charge in the preparation and maintenance of his defense, and was he harmed or prejudiced thereby;
(2) will the defendant be protected in the future criminal proceeding covering the same event, facts, and evidence against double jeopardy?”

Mitchem, 685 N.E.2d at 677 (quoting Harrison v. State, 507 N.E.2d 565, 566 (Ind.1987)).

Here, the record is devoid of any indication that Cross was prejudiced in the preparation or maintenance of his defense by the variance. The charging information listed Indiana Code section 35-50-2-13 generally and did not limit the State’s allegation that Cross violated the statute to any particular subsection contained therein. Moreover, Cross’s defense did not distinguish between possession and use. While Cross’s defense did not contain any argument that he possessed but did not use the handgun, nothing in the record suggests that he would have been precluded from doing so. In addition, nothing in the record indicates that Cross could potentially face a subsequent prosecution for his actions relating to the commission of the underlying offenses. As such, we conclude that the variance between the language contained in the body of the charging information and the proof presented at trial was not fatal.

Having determined that the variance between the language contained in the body of the charging information and the proof presented at trial was not fatal, we must next determine whether the evidence is sufficient to support a determination that Cross “used” the handgun while committing the offense of dealing in cocaine. The Indiana Supreme Court has previously held that mere possession of a handgun is not enough to constitute use of said handgun. See Nicoson v. State, 938 N.E.2d 660, 665 (Ind.2010) (providing that mere possession of a firearm is not enough to satisfy the requirement that a defendant used the firearm in the commission of an underlying offense). “Although it appears no Indiana cases have addressed what it means to ‘use’ a weapon, it seems to be accepted that ‘[t]he word “use,” in statutes prohibiting the use of a firearm in the commission of an offense, includes brandishing, displaying, bartering, striking with, and most obviously, firing or attempting to fire, a firearm.’” Daniels v. State, 957 N.E.2d 1025,1030 (Ind.Ct.App.2011) (quoting 94 C.J.S. Weapons § 37 (2001)).

We conclude that the record demonstrates that Cross did not merely possess the handgun during the commission of the offense of dealing in cocaine but also used the handgun during the commission of said offense. The evidence presented at trial demonstrated that Cross reached for the handgun during a struggle with police. Again, police officers were hiding in the hotel room in which Cross intended to sell cocaine to Sizemore. The officers made their presence known after watching Cross pull a bag of cocaine from his pocket. As the officers made their presence known, Cross reached for a handgun that was located in or around the waistband of his pants. Cross continued to reach for the handgun while he struggled with police in an apparent attempt to avoid arrest. Eventually, the handgun was recovered by one of the officers. We believe that Cross’s act of reaching for the handgun in an attempt to evade detention during the commission of the offense of dealing in cocaine moved beyond mere possession of said handgun, and, as a result, is sufficient to demonstrate use of said handgun. Because we conclude that the record contains independent evidence which demonstrates that Cross used the handgun during the commission of the act of dealing in cocaine, we further conclude that Cross was not punished twice for the same behavior.

Moreover, Cross has failed to demonstrate that there is a reasonable probability that the trier of fact, the trial judge, relied on the same evidence to establish the essential elements of both the carrying a handgun without a license charge and the use enhancement. As is stated above, the trial judge was presented with independent evidence that Cross used the handgun during the commission of his act of dealing in cocaine. Because the trial judge was presented with independent evidence to support Cross’s conviction and the sentence enhancement, we find no reasonable possibility that the evidentiary facts used by the trial judge to establish the essential elements of carrying a handgun without a license were also used to establish the sentence enhancement for use of a handgun during the commission of his act of dealing in cocaine. Any such possibility would be speculative and remote. See Thy Ho v. State, 725 N.E.2d 988, 992 (Ind.Ct.App.2000) (providing that because we presume that the trial judge knows the law and considers only the evidence properly before the court in reaching a decision, any possibility that the trial judge used the same evidence to establish the essential elements of both theft and robbery would have been speculative and remote). Cross, therefore, has not met his burden to establish an Indiana double jeopardy violation in this regard. See id. Accordingly, Cross’s sentence for carrying a handgun without a license and the sentence enhancement for using said handgun during the commission of the act of dealing in cocaine did not violate the prohibitions against double jeopardy.

B. Lesser-included Offense

Cross also contends that his conviction for Class A misdemeanor carrying a handgun without a license should be vacated. Cross was convicted of both Class C felony and Class A misdemeanor carrying a handgun without a license. The State concedes that Class A misdemeanor carrying a handgun without a license is a lesser-included offense of the Class C felony. Accordingly, the State concedes that Cross’s conviction for the lesser-included Class A misdemeanor conviction must be vacated. See Ind.Code § 35-38-1-6 (providing that judgment and sentence may not be entered against a defendant for the included offense whenever the defendant is charged with and convicted of both an offense and an included offense in separate counts).

CONCLUSION

In sum, we reject Cross’s contention that the classification of Cross’s acts of dealing in cocaine and possession of cocaine as Class A felonies was disproportionate to the nature of his offenses. With regard to his use of a handgun during the commission of the dealing offense, we conclude that Cross was not punished twice for the same act in violation of the prohibitions against double jeopardy. We also conclude that Cross’s conviction for the lesser-included offense of Class A misdemeanor carrying a handgun without a license must be vacated. As such, we affirm in part, reverse in part, and remand to the trial court with instructions to vacate the conviction for Class A misdemean- or carrying a handgun without a license.

The judgment of the trial court is affirmed in part, reversed in part, and the matter remanded to the trial court with instructions.

BAILEY, J., and MAY, J., concur.


author: BAILEY, Judge.

text:
    Kimberly KUBINA, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 45A03-1303-CR-100.
    Court of Appeals of Indiana.
    Nov. 6, 2013.

      P. Jeffrey Schlesinger, Appellate Public Defender, Crown Point, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Karl M. Scharnberg, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BAILEY, Judge.

Case Summary

Kimberly Kubina (“Kubina”) pled guilty to a single count of Neglect of a Dependent, as a Class A felony, and was sentenced to thirty-five years imprisonment. She now appeals, raising for our review only whether the trial court abused its discretion when it found aggravating and mitigating circumstances during sentencing.

We affirm.

Facts and Procedural History

We take our statement of facts from the stipulated facts entered along with Kubi-na’s plea agreement.

During 2007 and part of 2008, Kubina lived in Merrillville with her husband Riley Choate (“Choate”); her minor stepchildren, Christian Choate (“Christian”) and C.C.; her child with Choate, E.C.; her daughter from a prior relationship, R.K.; and several of her nieces and nephews. In March 2007, Kubina and Choate notified Christian’s elementary school that he would be homeschooled from that date forward. Kubina and Choate took this action because Choate had begun to beat Christian regularly. Kubina was afraid the school would notice bruises on Christian, that this would lead to inquiries from the Department of Child Services, and that all the children would be removed from the Kubina/Choate residence.

Over time, Choate’s beatings of Christian became increasingly violent. Kubina would step in to stop the beatings, but never notified law enforcement or sought medical treatment for Christian.

Also beginning in 2007, Christian was confined to a basement room. While initially allowed to leave the room more often, eventually Christian was permitted to leave the room only to eat and use the bathroom. Christian’s confinement continued even after Kubina and Choate learned that Christian had begun to relieve himself in his basement room.

In April 2008, the family moved to a home in Gary. Christian continued to be confined to one room in the home — first a bathroom, then later a bedroom he shared with Choate. In late 2008, Christian escaped the home in Gary until Kubina and one of her nieces, T.H., discovered Christian at a nearby Walgreens store.

After this, Choate beat Christian and, with Kubina’s help, confined Christian to a dog cage for the ensuing six to eight months. Christian was permitted to leave the cage only to eat, use the bathroom, and perform exercises at Choate’s instruction; Christian was only permitted to do exercises because Kubina observed that Christian’s feet were turning purple, which indicated likely circulatory problems. Eventually, Christian began to soil himself while in the cage; Kubina forced him to wear diapers.

Also during this period, Kubina directed her stepdaughter, C.C., to feed Christian one packet of Ramen noodles for breakfast and another packet for lunch, as well as a serving of the family’s dinner. Kubina eventually observed that, though Clmstian was thirteen years old, he wore clothing at a size appropriate for a significantly younger child. Kubina then told C.C. to prepare two packets of Ramen noodles for each meal, and began to prepare protein shakes for Christian. However, Kubina ceased to oversee Christian’s feeding after she taught C.C. to prepare Christian’s food.

Throughout this period, Kubina continued to observe Choate’s beatings of Christian, but did not inform law enforcement or attempt to obtain medical attention for the child. Kubina also ordered C.C. to give Christian weekly cold-water baths to reduce swelling and bruising on Christian’s body.

On or around April 1, 2009, Kubina had been out of the home running errands. She returned to find everyone in the home “walking on egg-shells” around Choate because Christian had gotten into trouble. (App’x at 171.) Kubina let Christian out of his cage to lay on a baby mattress, and noticed that he was “pale, lethargic, and glassy-eyed.” (App’x at 172.)

On April 2, 2009, Kubina left the home again to attend a conference at T.H.’s school. During the conference, Kubina received notice by cell phone that “something was wrong at home with ‘grandma.’ ” (App’x at 172.) Upon her return, Kubina found Christian had died. She notified Choate, who told her “to ‘take care of it’ until he got home.” (App’x at 172.)

Kubina consequently ordered C.C. to wrap Christian’s body in a blanket, place the body in two garbage bags, and put the entire bundle into a plastic tote. Kubina then ordered C.C. to help her carry Christian’s body across the street to a trailer belonging to someone called “Grandma.” (App’x at 172.)

After this, Kubina enlisted her sister’s help in driving to a hardware store to purchase two bags of concrete and two bags of lime. Upon Choate’s return from work that evening and at his insistence, Kubina assisted Choate in burying Christian’s body underneath a shed on “Grandma’s” property. Choate tore up the floor of the shed and dug a two- or three-foot-deep hole; Christian’s body was placed in the hole. Rubina gave Choate lime and concrete to cover Christian’s body, placed a cross and a Bible on the body, and watched as Choate covered Christian’s body with dirt.

Sometime in 2011, C.C. informed her and Christian’s mother about the circumstances of Christian’s death and burial. C.C.’s mother contacted police, and an investigation ensued that led to the arrests of Rubina and Choate.

On May 10, 2011, Rubina was charged with Murder, a Felony; Battery, as a Class A felony; two counts of Neglect of a Dependent, each as Class A felonies; and Criminal Confinement, as a Class B felony. On May 16, 2011, the charging information was amended, and the following charges against Rubina were added: three counts of Obstruction of Justice, as Class D felonies; two counts of Neglect of a Dependent, as Class D felonies; Removal of a Body from Death Scene, as a Class D felony; Failure to Notify Authorities of the Discovery of a Dead Body, as a Class A misdemeanor; and Failure to Report a Dead Body, as a Class A misdemeanor.

On May 2, 2012, Rubina and the State entered into a plea agreement whereby Rubina agreed to plead guilty to a single count of Neglect of a Dependent, as a Class A felony, with all other charges against her dismissed. In exchange, Rubi-na was obligated to provide testimony against Choate. The parties agreed to a sentencing range of twenty-five to thirty-five years imprisonment, with the length of the sentence to be determined by the trial court.

The trial court accepted the plea agreement, and subsequently conducted a sentencing hearing on February 19, 2013. During the hearing, both parties introduced testimony in support of their respective positions. At the conclusion of the hearing, the trial court sentenced Rubina to thirty-five years imprisonment, the maximum term permitted by the plea agreement.

This appeal ensued.

Discussion and Decision

Rubina raises a single issue for our review, whether during sentencing the trial court abused its discretion in finding aggravating and mitigating circumstances.

Sentencing decisions “rest within the sound discretion of the trial court and are reviewed on appeal only for an abuse of discretion.” Anglemyer v. State, 868 N.E.2d 482, 490 (Ind.2007). Subject to review under the abuse of discretion standard are “[t]he reasons given” for entry of a sentence, as well as “the omission of reasons arguably supported by the record” — that is, the trial court’s finding of aggravating and mitigating circumstances in reaching a sentencing decision. Id. at 491.

Here, Rubina contends that the trial court improperly took into account her position of trust vis-a-vis Christian when determining aggravating circumstances. She also argues that the court ignored uncontroverted evidence that she had, pri- or to her arrest, been suffering with undiagnosed and untreated mental illness; that Choate had abused her throughout the marriage, often in front of the children in the home; that she feared losing her children if she reported Christian’s abuse to police or healthcare providers; and that she was sincerely remorseful.

Among the aggravating circumstances the trial court may take into account in reaching a sentence is that the defendant “was in a position having care, custody, or control of the victim of the offense.” I.C. § 35-38-l-7.1(a)(8). Though our statutes provide for a number of mitigating circumstances, none of which are exclusive, none of those listed by the statute were ignored by the trial court. See I.C. §§ 35-38-1-7.1(b) & (c). However, regardless of the presence or absence of aggravating or mitigating circumstances, a trial court may impose any sentence authorized by statute and permissible under the Indiana Constitution. I.C. § 35 — 38—1—7.1(d).

As to the question of Kubina’s position of trust, Kubina contends that taking an element of an offense as an aggravating circumstance is an abuse of discretion. Yet trial courts are not prohibited from considering material elements of an underlying offense in considering aggravating circumstances at sentencing. Pedroza v. State, 887 N.E.2d 77, 80 (Ind.2008). And Indiana courts have long held that “so long as the trial court takes into consideration facts not needed to prove the elements of the offense, the nature and circumstances of the crime can appropriately be considered as aggravating circumstances.” Hall v. State, 870 N.E.2d 449, 464 (Ind.Ct.App.2007) (citing McCann v. State, 749 N.E.2d 1116,1120 (Ind.2001)), trans. denied.

The statute under which Kubina was convicted requires that the defendant have had “care of a dependent.” I.C. § 35-46-l-4(a). Kubina had more than mere care of Christian; she was a stepparent involved in Christian’s upbringing and living in the same home with him, and directly assisted Choate in Christian’s abuse on numerous occasions. The trial court noted several of these facts, as well as the nature of Christian’s “long, lingering, torturous death.” (Sentencing Tr. at 115.) We thus find no abuse of discretion in the trial court’s finding that Kubina was in a position of trust with Christian.

As to mitigating circumstances, the trial court took into account only one such factor: that Kubina lacked any criminal history. (Sentencing Tr. at 115.) As to the question of remorse, while the trial court found that Kubina was remorseful, it afforded that determination no weight because of the nature and circumstances of the offense. (Sentencing Tr. at 113.) As to the rest of Kubina’s proposed mitigating circumstances, the statute does not by its terms require that the trial court have taken them into account. Nevertheless, we note that the trial court noted these facts, but apparently afforded them no weight in reaching a sentencing decision, observing “I’ve seen some pretty bad foster homes before but nothing, nothing that rises to the level of this.” (Sentencing Tr. at 114.)

We decline Kubina’s invitation to second-guess the court’s finding and weighing of aggravating and mitigating circumstances. We therefore find no abuse of discretion in the trial court’s sentencing.

Conclusion

Having found no abuse of discretion in the trial court’s determination of aggravating and mitigating circumstances, we affirm the trial court’s sentencing order.

Affirmed.

MAY, J., and BRADFORD, J., concur.

      . Ind.Code § 35-46-1-4.

      . Kubina also claims her sentence was inappropriate. However, she fails to make any cogent argument in this regard, and thus that issue is waived. See Perry v. State, 921 N.E.2d 525, 528 (Ind.Ct.App.2010).

      . I.C. § 35-42-1-1.

      . I.C. § 35-42-2-1.

      . I.C. § 35-46-1-4.

      . I.C. § 35-42-3-3.

      . I.C. § 35-44-3-4.

      . I.C. § 36-2-14-17.

      . I.C. § 36-2-14-17.

      . I.C. § 35-45-19-3.


author: NAJAM, Judge.

text:
    Hitesh SETH, Appellant-Defendant, v. MIDLAND FUNDING, LLC, as an Assignee of Columbus Bank and Trust as Issuer of Aspire Visa, Appellee-Plaintiff.
    No. 48A05-1303-CC-110.
    Court of Appeals of Indiana.
    Nov. 8, 2013.
    Hitesh Seth, Muncie, IN, pro se.
    Glenn S. Vician, Christopher M. Man-hart, Bowman, Heintz, Boscia & Vician, P.C., Merrillville, IN, for Appellee.
   OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

Hitesh Seth appeals the trial court’s entry of summary judgment in favor of Midland Funding, LLC (“Midland”) on Midland’s complaint against Seth for nonpayment of credit card debt. Seth presents a single dispositive issue for our review, namely, whether the trial court erred when it concluded that Midland had satisfied its burden of proof under Trial Rule 56(C).

We reverse and remand.

FACTS AND PROCEDURAL HISTORY

On October 26, 2011, Midland filed a complaint against Seth alleging breach of a credit card contract and seeking damages in the amount of $3,410.87, plus interest and costs. Midland filed an amended complaint on December 5. Midland then moved for summary judgment, which the trial court granted following a hearing. This appeal ensued.

DISCUSSION AND DECISION

Our standard of review for summary judgment appeals is well established:

When reviewing a grant [or denial] of summary judgment, our standard of review is the same as that of the trial court. Considering only those facts that the parties designated to the trial court, we must determine whether there is a “genuine issue as to any material fact” and whether “the moving party is entitled to a judgment as a matter of law.” In answering these questions, the reviewing court construes all factual inferences in the non-moving party’s favor and resolves all doubts as to the existence of a material issue against the moving party. The moving party bears the burden of making a prima facie showing that there are no genuine issues of material fact and that the movant is entitled to judgment as a matter of law; and once the movant satisfies the burden, the burden then shifts to the non-moving party to designate and produce evidence of facts showing the existence of a genuine issue of material fact.

Dreaded, Inc. v. St. Paul Guardian Ins. Co., 904 N.E.2d 1267, 1269-70 (Ind.2009) (citations omitted). The party appealing a summary judgment decision has the burden of persuading this court that the grant or denial of summary judgment was erroneous. Knoebel v. Clark County Superior Court No. 1, 901 N.E.2d 529, 531-32 (Ind.Ct.App.2009).

Seth contends that Midland did not satisfy its burden of making a prima facie showing that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. In particular, Seth maintains that much of Midland’s designated evidence is inadmissible hearsay or otherwise insufficient to support summary judgment. We must agree.

In order to make its prima facie case in support of summary judgment, Midland was required to show that Seth had opened a Visa account with Columbus Bank and Trust, that Midland was the assignee of that debt, and that Seth owed Columbus Bank and Trust the amount alleged in the complaint. Midland’s designated evidence consisted of the following: a document entitled “Assignment of Accounts” (“the Assignment”) executed by Andrew Carlson of Jefferson Capital Systems, LLC (“Jefferson”) and J. Brandon Black of Midland dated September 10, 2007; an affidavit executed by Carlson and dated October 2009 , which includes an attachment identified as “Schedule 1”; an “Affidavit of Debt” executed by Erin De-gel; an uncertified and unsworn nine-page document entitled “Transaction History”; an uncertified and unsworn copy of a credit card statement; an uncertified, unsworn, and largely illegible copy of the terms of the credit card agreement; and an unidentified, uncertified, and unsworn document with no title, but with the words “Field” and “Field Data” typed at the top of the page.

In ruling on a motion for summary judgment, the trial court will consider only properly designated evidence which would be admissible at trial. Kronmiller v. Wangberg, 665 N.E.2d 624, 627 (Ind.Ct.App.1996), trans. denied. Un-sworn statements and unverified exhibits do not qualify as proper Rule 56 evidence. Auto-Owners Ins. Co. v. Bill Gaddis Chrysler Dodge, Inc., 973 N.E.2d 1179, 1182 (Ind.Ct.App.2012), trans. denied. Thus, here, the two affidavits from Carlson and Degel are the only potentially proper Rule 56 evidence designated by Midland. We agree with Seth that the affidavits are insufficient to support summary judgment.

First, the Carlson affidavit is too vague to support Midland’s contentions in support of summary judgment. Carlson’s affidavit provides as follows:

1. I am the Manager of Portfolio Sales for Jefferson Capital Systems, LLC. I have personal knowledge of the information contained herein and am authorized to make the following statements and representations.
2. CompuCredit Corporation is the parent corporation to Jefferson Capital Systems, LLC (“Jefferson”).
3. CompuCredit Corporation acquired certain Aspire Visa, Emerge Master-card and Freedomcard Mastercard credit card accounts issued by Columbus Bank and Trust Company.
4. Once the accounts owned by Compu-Credit Corporation are charged-off, the accounts are subsequently transferred and assigned to Jefferson Capital Systems, LLC (“Jefferson”).
5. Jefferson subsequently sold many of the accounts to Midland Funding, LLC. The sale was consummated with an Assignment of Accounts. Individual accounts sold would not be specifically itemized in the Assignment document.
6. The initial sale of accounts took place and accounts were transferred on June 7, 2005 from Jefferson to Midland Funding, LLC.. Jefferson also sells accounts to Midland Funding, LLC each month.
7. The associated bin (456419) associated [sic] with the Columbus Bank and Trust Company accounts are attached hereto as Schedule 1.
8. All information regarding the credit card accounts is transmitted electronically to the purchasers and is not transmitted in a paper file format. The electronic transmission contains all the accounts that were part of the sale to the purchasers.

Appellant’s App. at 20 (emphases added). “Schedule 1,” attached to Carlson’s affidavit, merely confirms the “BIN” number of the “Aspire VISA Gold” accounts that originated with Columbus Bank. Id. at 21. Nothing in either Carlson’s affidavit or in the Schedule 1 document contains Seth’s name or account number. In other words, this designated evidence does not show that Midland owns Seth’s credit card account, only that it acquired “certain” accounts issued by Columbus Bank. See id. at 20.

Next, Seth maintains that, in her affidavit, Degel

purports to testify to acts and events that allegedly occurred between Seth and Columbus between September 2002 and August 2007.... Midland did not attach any evidence that the affiant was ever employed with Columbus or Jefferson, and therefore cannot possibly have personal knowledge of how Columbus’ or Jefferson’s records were prepared and maintained, and is unqualified to testify as to the truth of the information contained in the Affidavit.

Brief of Appellant at 27-28. In short, Seth contends that Degel’s affidavit is not based upon personal knowledge, as required by Trial Rule 56(E). But Midland maintains that Degel established an “adequate foundation” for her affidavit when she stated that she is “familiar with the record keeping practices of Midland, ... has reviewed records kept in the normal course of business, and ... makes the statements in her affidavit based upon personal knowledge of those account records.” Brief of Appellee at 18. We agree with Seth.

Degel’s affidavit reads in relevant part as follows:

I, Erin Degel, am an employee of Midland Credit Management, Inc. (“MCM”), servicing agent for plaintiff. I am familiar with the recordkeeping practices of MCM. I have reviewed records kept in the normal course of MCM’s business, and make the statements herein based upon personal knowledge of those account records maintained on plaintiffs behalf.
SETH/HITE SH, Defendant, has an account balance of $8410.87, which is owed to the Plaintiff on account XXXXXXXXXXXX4841. The account was opened on 2002-09-23. The last payment posted to the account on 2006-12-22 and the amount is unknown. The type of account is: Credit card account (i.e. Visa, MasterCard, Department Store, etc.)

The Plaintiff:

Has obtained this debt from JEFFERSON CAPITAL SYSTEMS, LLC and the original creditor of this debt was COLUMBUS BANK AND TRUST. The account balance includes: MCM’s records indicate that there are no late fees after 2007-09-10. Interest at a rate of 0.00% beginning on 2010-07-06. The Plaintiff:
May be seeking attorney’s fees and additional evidence will be presented to the court prior to entry of judgment on attorney’s fees, if requested in the Complaint or Notice of Claim.

Appellant’s App. at 23 (emphasis added).

Trial Rule 56(E) provides in part that supporting and opposing affidavits on summary judgment shall be made on personal knowledge and shall set forth such facts as would be admissible in evidence. We agree with Seth that Degel’s employment with Midland’s servicing agent, MCM, does not establish her personal knowledge of any of the facts pertaining to Midland’s complaint against Seth. Indeed, Degel states that she based her affidavit on her “personal knowledge of those account records maintained” by MCM on Midland’s behalf. Id. Because her knowledge of the facts is limited to what she has gleaned from her review of unspecified business records, her affidavit is based entirely upon hearsay, in violation of Trial Rule 56(E). See Breining v. Harkness, 872 N.E.2d 155, 158 (Ind.Ct.App.2007) (holding inadmissible hearsay contained in an affidavit may not be considered in ruling on a summary judgment motion), trans. denied. And, contrary to Midland’s contention on appeal, the business records exception, Evidence Rule 803(6), does not apply here because Degel’s affidavit does not purport to authenticate any business records, which is the sole function of that exception.

Moreover, Trial Rule 56(E) also requires that a party submitting an affidavit on summary judgment attach “sworn or certified copies not previously self-authenticated of all papers or parts thereof referred to in an a£fidavit[.]” Because Degel explicitly states that her affidavit is based upon her personal knowledge of facts obtained from business records maintained by Midland, she was required to attach to her affidavit sworn, certified, or self-authenticated copies of any of the business records she relied upon. The requirements of T.R. 56(E) are mandatory; hence, a court considering a motion for summary judgment should disregard inadmissible information contained in supporting or opposing affidavits. City of Gary v. McCrady, 851 N.E.2d 359, 363 (Ind.Ct.App.2006). But, critically, Degel did not attach to her affidavit any of the records upon which she purported to rely. Because Degel’s affidavit does not comply with Trial Rule 56(E), we must disregard it.

We hold that Midland has failed as a matter of law to designate evidence to make a prima facie case that it is entitled to summary judgment on its complaint. Accordingly, the burden of proof did not shift to Seth to show that there exist questions of material fact precluding summary judgment. We reverse the trial court’s entry of summary judgment and remand for further proceedings.

Reversed and remanded.

MATHIAS, J., and BROWN, J., concur.

      . Seth's contention that Carlson.’s affidavit is dated 2004 is simply without merit.

      . The font is so small as to make it nearly impossible to read the terms of the agreement.

      . We reject Seth's contention that Midland is required to prove that he signed an agreement to open a credit card account. See Meyer v. National City Bank, 903 N.E.2d 974, 976 (Ind.Ct.App.2009) (holding - credit card agreements are contracts, and the issuance and use of a credit card creates a legally binding agreement).