author: Curt C. Hartman, Judge

text:
    LAMAR ADVANTAGE GP CO., LLC, dba Lamar Advertising of Cincinnati, OH, Plaintiff, and State of Ohio ex rel. Lamar Advantage GP Co., LLC, Relator, v. CITY OF CINCINNATI, et al., Defendants-Respondents.
    Norton Outdoor Advertising, Inc., Plaintiff, v. City of Cincinnati, et al., Defendants.
    No. A-18-04105 (consolidated with Case No. A-18-04125)
    COURT OF COMMON PLEAS OF OHIO, HAMILTON COUNTY
    November 09, 2018
    ENTRY CONVERTING PRELIMINARY INJUNCTION INTO PERMANENT INJUNCTION
   Curt C. Hartman, Judge

"It is generally improper for a court to dispose of a case on the merits following a hearing for preliminary injunction without consolidating that hearing with a hearing on the merits or otherwise giving notice to counsel that the merits would be considered." George P. Ballas Buick-GMC, Inc. v. Taylor Buick, Inc., 5 Ohio App.3d 71, 449 N.E.2d 503 (6th Dist. 1982). Nonetheless, because Rule 65(B)(2) of the Ohio Rules of Civil Procedure"provides that consolidation may be ordered 'before or after beginning the hearing,' the trial court can transform a preliminary injunction hearing into a consolidated hearing at any time and may do so on its own motion." 11A Wright, Miller & Kane, Federal Practice and Procedure § 2950 (2d ed. 1995). However, "[t]his power must be tempered by the due process principle that fair notice and an opportunity to be heard must be given the litigants before the disposition of a case on the merits." Id. But "when the parties in fact presented their entire cases and no evidence of significance would be forthcoming at trial, then [a] trial court's consolidation will not be considered to have been improper." Id.; accord Capital City Gas Co. v. Phillips Petroleum Co., 373 F.2d 128, 131 (2d Cir. 1967) ("permanent relief might be granted after a hearing upon a temporary injunction if no genuine issues of fact are found to be present").

In the case sub judice , prior to the commencement of the hearing on the Motions for Preliminary Injunctions , the parties conducted significant discovery, including depositions. Then, following several days of testimony and extensive argument by counsel, the Court issued a Preliminary Injunction precluding Defendants from undertaking any action to implement or enforce any and all provisions of Chapter 313 of the Cincinnati Municipal Code, including, without limitation, the outdoor advertising tax provided for therein. During this entire process, all parties acknowledged that the issues sub judice concerning Chapter 313 (which was enacted by Ordinance No. 167-2018) involved predominately legal issues. And this proposition was reiterated by the parties dining oral argument held on October 23, 2018, at which time the parties specifically addressed whether the Preliminary Injunction should be converted to a permanent injunction and, if so, whether language should be included finding no just reason for delay pursuant to Rule 54(B) of the Ohio Rules of Civil Procedure.

Additionally, the Court apprized the parties formally on November 1, 2018, of its sua sponte consideration of whether to convert the Preliminary Injunction into a permanent injunction. In response thereto, Plaintiff LAMAR ADVANTAGE GP CO., LLC, dba LAMAR ADVERTISING OF CINCINNATI, OH, and Defendants CITY OF CINCINNATI and its officials tendered additional written responses to such potential action by the Court, indicating no substantive objection to the conversion.

While LAMAR and Plaintiff NORTON OUTDOOR ADVERTISING, INC., filed Amended Complaints since the issuance of the Preliminary Injunction, the Amended Complaints make no new substantive allegations concerning the issues underlying the scope of the Preliminary Injunction, i.e., the constitutionality of Chapter 313 of the Cincinnati Municipal Code as adopted through Ordinance No. 167. Thus, the Amended Complaints do not alter the evidence or issues presented to the Court as it relates to Chapter 313.

And while the parties have generally acknowledged the appropriateness to issue a permanent injunction, the Court still has undertaken an independent assessment of the factors for issuance of a permanent injunction. "The test for granting a permanent injunction is similar to the test used for granting a preliminary injunction." West Branch Local School Dist. Bd. of Ed. v. West Branch Ed. Ass'n , 2015-Ohio-2753, 35 N.E.3d 551, ¶ 15 (7th Dist.). However, certain distinctions do exists. Whereas "[t]he preliminary injunction test requires the moving party to prove a substantial likelihood of success on the merits," a permanent injunction test requires "the party seeking it to demonstrate a right to relief under the applicable substantive law." Id. And in addition to demonstrating irreparable injury, a complaining party seeking a permanent injunction must also demonstrate the lack of an adequate remedy at law. Ohio Hosp. Ass'n v. Ohio Bur. of Workers' Comp., 2007-Ohio-1499, 2007 WL 949468, ¶ 24 (10th Dist.). But ultimately, "[t]he essential prerequisite to a permanent injunction is the unavailability of an adequate remedy at law. Irreparable injury is, however, one basis, and probably the major one, for showing the inadequacy of any legal remedy. Often times the concepts of 'irreparable injury' and 'no adequate remedy at law' are indistinguishable." Lewis v. S. S. Baune, 534 F.2d 1115, 1123-24 (5th Cir. 1976) (internal citation omitted) ). Based upon the Court's independent assessment of these factors, the Court finds the analysis supporting the issuance of the Preliminary Injunction clearly supports the issuance of a permanent injunction.

Because the issuance of a permanent injunction as it relates to Chapter 313 of the Cincinnati Municipal Code will not resolve all the claims sub judice, the Court must consider whether to make the determination that there is no just reason for delay pursuant to Ohio R. Civ. P. 54(B).

In deciding that there is no just reason for delay, the trial judge makes what is essentially a factual determination - whether an interlocutory appeal is consistent with the interests of sound judicial administration, i.e. , whether it leads to judicial economy. Trial judges are granted the discretion to make such a determination because they stand in an unmatched position to determine whether an appeal of a final order dealing with [multiple-claim or multiple-party actions] is most efficiently heard prior to trial on the merits. The trial court can best determine how the court's and the parties' resources may most effectively be utilized. The trial court is most capable of ascertaining whether not granting a final order might result in the case being tried twice. The trial court has seen the development of the case, is familiar with much of the evidence, is most familiar with the trial court calendar, and can best determine any likely detrimental effect of piecemeal litigation.

Chef Italiano Corp. v. Kent State Univ., 44 Ohio St.3d 86, 541 N.E.2d 64 (1989).

The CITY OF CINCINNATI objects to the inclusion of Rule 54(B) language "at this point" of the proceedings, maintaining that the inclusion of such language would bifurcate the issues sub judice and preclude appellate review of all issues at one time. While " Rule 54(B)'s general purpose is to accommodate the strong policy against piecemeal litigation with the possible injustice of delayed appeals in special situations," Noble v. Colwell, 44 Ohio St.3d 92, 96, 540 N.E.2d 1381 (1989), the raison d'être for Ohio R. Civ. P. 54(B) supports allowing, inter alia , separate and discrete claims to proceed forward on appeal apart from unrelated claims even when all claims are against the same parties.

"In the ordinary case, Civ.R. 54(B) certification demonstrates that the trial court has determined that an order, albeit interlocutory, should be immediately appealable, in order to further the efficient administration of justice and to avoid piecemeal litigation or injustice attributable to delayed appeals." Sullivan v. Anderson Twp., 122 Ohio St.3d 83, 2009-Ohio-1971, 909 N.E.2d 88, ¶ 11. In the case sub judice, two ordinances passed by the Cincinnati City Council are at issue, viz., Ordinance No. 167-2018 (involving the billboard tax and the no-stating-the-tax provisions) and Ordinance No. 163-2018 (involving the fees associated with billboard permits and the renewal period for such permits). And while the budgetary process in the City of Cincinnati brought about the passage of both ordinances, the factual and legal issues involved between the two are separate and distinct. Furthermore, legal issues dominate with respect to Ordinance No. 167, i.e., the target of the forthcoming permanent injunction. And finally, the interest of justice militates in minimizing the period that implementation of Ordinance No. 167 is enjoined by this Court should appellate review ultimately uphold its constitutionality. Thus, the Court finds, in its discretion, that the issuance of a permanent injunction should include language declaring that there is no just reason for delay.

For the foregoing reason, a permanent injunction will issue consistent with the foregoing, as well as the analysis set forth in the Entry Granting in Part and Denying in Part Motions for Preliminary Injunction.

SO ORDERED.

      In support of the issuance of the Preliminary Injunction, the Court addressed, inter alia, the decision in Clear Channel Outdoor, Inc. v. Department of Finance of Baltimore City , 2018 WL 1178952 (Md. Tax Feb. 27, 2018), wherein the Maryland Tax Court upheld a billboard tax in Baltimore. See Entry Granting in Part and Denying in Part Motions for Preliminary Injunction, at 20 n.10. Since the issuance of the Preliminary Injunction, the decision of the Maryland Tax Court was affirmed by the Baltimore City Circuit Court. Clear Channel Outdoor, Inc. v. Director, Department of Finance of Baltimore City, Case No. 24-C-18-001778 (Baltimore City Cir. Ct. Oct. 22, 2018).
      As part of the present consideration of the merits on the issuance vel non of a permanent injunction, this Court has also reviewed that recent decision by the Baltimore City Circuit Court. Nonetheless, the analysis by that court has not altered the conclusion of this Court on the merits. In affirming the decision of the Maryland Tax Court, the Baltimore City Circuit Court summarily accepted and proceeded from the proposition that "the tax [upon billboards imposed by Baltimore] is directed at a means of expression rather than the expression itself" and that "[t]he First Amendment only affords protection to regulation of actual or symbolic speech, and expressive conduct." Id. at 6. It, therefore, summarily concluded that "[the billboard tax] is not a tax on Clear Channel's right to free speech".
      But well-established precedent clearly recognizes that the means of engaging in or distributing speech are protected under the First Amendment. See, e.g., Joseph Burstyn, Inc. v. Wilson , 343 U.S. 495, 502, 72 S.Ct. 777, 96 L.Ed. 1098 (1952) ("we conclude that expression by means of motion pictures is included within the free speech and free press guaranty of the First and Fourteenth Amendments"); Kingsley Intern. Pictures Corp. v. Regents of University of State of N.Y., 360 U.S. 684, 690, 79 S.Ct. 1362, 3 L.Ed.2d 1512 (1959) ("[i]t is enough for the present case to reaffirm that motion pictures are within the First and Fourteenth Amendments' basic protection); Ayres v. City of Chicago , 125 F.3d 1010 (7th Cir. 1997) ("distribution of T-shirts is the principal means by which the group propagates its views" and "there is no question that the T-shirts are a medium of expression prima facie protected by the free-speech clause of the First Amendment, and they do not lose their protection by being sold rather than given away"); Romantics v. Activision Pub., Inc., 574 F.Supp.2d 758, 765 (E.D. Mich. 2008) ("[n]umerous courts have held that video games are expressive works protected by the First Amendment"); Chicago Tribune Co. v. City of Chicago, 705 F.Supp. 1345, 1347 (N.D. Ill. 1989) ("[t]he First Amendment protects the means of newspaper distribution as well as the content and ideas expressed in newspapers").
      In fact, the Supreme Court recognized in Metromedia, Inc. v. City of San Diego , 453 U.S. 490, 101 S.Ct. 2882, 69 L.Ed.2d 800 (1981), that billboards themselves, i.e., means of expression, are entitled to First Amendment protection. Id. at 524, 101 S.Ct. 2882 (Brennan, J., concurring)("[t]he plurality and I agree that billboards are a medium of communication warranting First Amendment protection"); see also Prime Media, Inc. v. City of Brentwood, Tenn., 398 F.3d 814, 818 (6th Cir. 2005) ("[b]illboards and other visual signs, it is clear, represent a medium of expression that the Free Speech Clause has long protected"); Bill Salter Advertising, Inc. v. City of Brewton, Ala., 486 F.Supp.2d 1314, 1328 (S.D. Ala. 2007) ("advertising billboards at issue in these proceedings are plainly entitled to First Amendment protection"). Thus, the entire foundation for the analysis of the Baltimore City Circuit Court, i.e., that because the billboard tax is directed at the "means of expression rather than the expression itself" there is not a First Amendment interest implicated, is clearly repudiated by well-established case law.
      However, unlike the Maryland Tax Court, the Baltimore City Circuit Court actually attempted to distinguish Minneapolis Star & Tribune Co. v. Minnesota Comm'r of Revenue , 460 U.S. 575, 103 S.Ct. 1365, 75 L.Ed.2d 295 (1983). In so doing, though, the Court initially focused upon the issue of whether the challenged tax deviated from an already-existing tax scheme. Relying upon the fact that the tax at issue in Minneapolis Star was a "special use tax" that deviated from an already-existing unitary sales tax scheme, the Baltimore City Circuit Court declared Minneapolis Star to be "immaterial" because "there [was] no preexisting general [tax] scheme [in Baltimore] that the City deviate[d] from to single out billboard operators for special treatment." Clear Channel Outdoor, Case No. 24-C-18-001778, at 8. Such a proposition is spacious. Even if the deviation vel non from an existing tax scheme is pertinent, the absence of a particular type of tax is an existing tax scheme; and the City of Baltimore clearly deviated from that already-existing tax scheme when it isolated and targeted billboard operators for the imposition of an entirely new tax. The same is true with respect to the billboard tax imposed by the City of Cincinnati.
      Additionally, the Baltimore City Circuit Court attempted to distinguish Minneapolis Star on the premise that the latter involved constitutional rights for the press and that because "billboards are primarily for advertising... [they] simply [are] not in the same category as the fourth estate." Clear Channel Outdoor , Case No. 24-C-18-001778, at 9. But "[t]he Supreme Court has made clear that courts should eschew creating a hierarchy among First Amendment rights." Rutherford v. Katonah-Lewisboro School Dist ., 670 F.Supp.2d 230, 245 (S.D.N.Y. 2009). Yet that is precisely what the Baltimore City Circuit Court has done (and, in so doing, contradicting its earlier assessment that the means of expression are not entitled to protection).
      And in a final effort to distinguish Minneapolis Star , the Baltimore City Circuit Court relied upon the difference in the "type of tax" involved, i.e., a use tax versus an excise tax. Clear Channel Outdoor, Case No. 24-C-18-001778, at 9. But the type of tax involved is not the issue; regardless of the appellation that may be given to any particular the tax, the focus is whether, in the exercise of its taxing powers, the government has singled out and directed or targeted a tax solely at the exercise of First Amendment rights or at the means or instruments utilized in exercising First Amendment rights or whether a tax has targeted a small narrow group to bear the burden of the tax. That is precisely what the CITY OF CINCINNATI has done in the case sub judice and, in so doing, the CITY OF CINCINNATI has clearly run afoul of the First Amendment.


source: Caselaw Access Project

license: Public Domain

text:
    MATTHEW S., Petitioner, v. ANDRIA C., Respondent.
    124353
    Supreme Court of Illinois.
    January 25, 2019
    Petition for Appeal as a Matter of Right or, in the alternative, Petition for Leave to Appeal Denied.


text:
    IN RE JOSE A., a Minor
    (People State of Illinois, petitioner, v. Jose A., respondent).
    No. 124219
    Supreme Court of Illinois.
    January 24, 2019
    Petition for Leave to Appeal Denied.


author: All Justices concur.

text:
    In the MATTER OF: William B. FECHER, Respondent
    Supreme Court Case No. 98S00-1610-DI-552
    Supreme Court of Indiana.
    FILED January 25, 2019.
    Published Order Finding Misconduct and Imposing Discipline
    Upon review of the report of the hearing officer, the Honorable John R. Pera, who was appointed by this Court to hear evidence on the Indiana Supreme Court Disciplinary Commission's "Amended Verified Complaint for Disciplinary Action," and the briefs of the parties, the Court finds that Respondent engaged in professional misconduct and imposes discipline on Respondent.
    Facts: In early 2013 Respondent, who is a partner in a Cincinnati law firm, entered an appearance on behalf of a defendant ("Company") in a breach of contract action filed by "Plaintiff" in Lake County, Indiana ("Lake County Case"). Respondent then failed to timely comply with discovery, resulting in an award of $800 in attorney fees to Plaintiff. Respondent and Company also failed to appear for court-ordered mediation, which led to show cause proceedings and a hearing that Respondent and Company also failed to attend. Respondent and Company were ordered to pay $2,000 jointly and severally as a contempt sanction. After Plaintiff obtained summary judgment the trial court set the matter for a proceedings supplemental hearing, which Respondent and Company failed to attend. Additional show cause proceedings ensued, with Respondent and Company again failing to attend the hearing.
    When the Commission undertook an investigation of this matter, Respondent failed to respond to the Commission's demand for information. This led to show cause proceedings in this Court and, eventually, Respondent's suspension for noncooperation. After Respondent had been suspended for six months, the Commission filed a motion to convert Respondent's noncooperation suspension to an indefinite suspension. As that motion was pending, Respondent finally complied, and the Court issued an order on August 11, 2015, terminating Respondent's noncooperation suspension.
    Respondent's substantial experience in the practice of law is a fact in aggravation. Mitigating factors in this case include Respondent's remorse, lack of prior discipline, lack of dishonest or selfish motive, and efforts to rectify the consequences of his misconduct by, among other things, paying all monetary sanctions (including those directed toward Company) out of his own funds.
    Violations: The Commission carries the burden of proof to demonstrate attorney misconduct by clear and convincing evidence. See Indiana Admission and Discipline Rule 23(14)(g). And while the review process in disciplinary cases involves a de novo examination of all matters presented to the Court, a hearing officer's findings nevertheless receive emphasis due to the unique opportunity for direct observation of witnesses. See Matter of Brizzi, 962 N.E.2d 1240, 1244 (Ind. 2012).
    Respondent admits, and we find, that Respondent violated Professional Conduct Rule 8.1(b) by failing to timely respond to the Commission's demand for information. Respondent likewise does not contest the hearing officer's findings and conclusions that he violated Rules 3.4(c) and 8.4(d) by knowingly disobeying court orders in the Lake County Case, and we agree with and adopt those findings and conclusions as well.
    The Commission also charged Respondent with a violation of Rule 1.16(a)(1), which in relevant part provides that "a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if ... the representation will result in violation of the Rules of Professional Conduct[.]" The hearing officer concluded that Respondent did not violate this rule, and the Commission has filed a petition for review challenging this conclusion. Rule 1.16(a)(1) looks forward rather than backward; the rule is not implicated when a representation "did" result in professional misconduct but rather when a representation "will" result in misconduct. Upon careful review of the materials before us, we agree with the hearing officer that the facts and circumstances of this case do not provide grounds for finding a violation of Rule 1.16(a)(1). Accordingly, we find in favor of Respondent on this charge.
    Discipline: The hearing officer recommended that Respondent be given a public reprimand. The Commission has not sought review of the hearing officer's findings relevant to sanction or filed a brief on sanction urging a different result, and a public reprimand is within the range of discipline imposed in other cases involving similar misconduct. See, e.g., Matter of Staples, 66 N.E.3d 939 (Ind. 2017). Accordingly, for Respondent's professional misconduct, the Court imposes a public reprimand .
    The costs of this proceeding are assessed against Respondent. The hearing officer appointed in this case is discharged.
   All Justices concur.


author: Massa, Justice.

text:
    Q.D.-A., INC. Appellant v. INDIANA DEPARTMENT OF WORKFORCE DEVELOPMENT, Appellee
    Supreme Court Case No. 19S-EX-43
    Supreme Court of Indiana.
    Argued: September 13, 2018 Filed: January 23, 2019
    ATTORNEYS FOR APPELLANT: Paul D. Borghesani, Angela N. Johnson, Andrew B. Murphy, Alexander E. Preller, Faegre Baker Daniels LLP, Indianapolis, Indiana, Minneapolis, Minnesota
    ATTORNEYS FOR APPELLEE: Curtis T. Hill, Jr., Attorney General of Indiana, Thomas M. Fisher, Solicitor General, Kian J. Hudson, Patricia C. McMath, Julia C. Payne, Andrea E. Rahman, Deputy Attorneys General, Indianapolis, Indiana
   Massa, Justice.

Q.D.-A. matches drivers with customers who need large vehicles driven to them. Because Q.D.-A. classified these drivers as independent contractors, it did not pay unemployment taxes for them under the Indiana Unemployment Compensation Act. The Act presumes a worker is an employee unless the employer can show three things: (A) the worker is free from the employer's control and direction, (B) the worker performs a service outside the usual course of the employer's business, and (C) the worker receives a commission or operates an independently established trade, occupation, or profession.

After a driver for Q.D.-A. filed for unemployment benefits under the Act, the Department of Workforce Development told the company that it had misclassified him as an independent contractor. But because Q.D.-A. proved the Act's three-part test, we hold that he was an independent contractor.

Facts and Procedural History

Q.D.-A. is a business that connects drivers with customers who need too-large-to-tow vehicles driven to them. Consistent with its typical practice, Q.D.-A. contracted with a Driver to pair him with customers needing this drive-away service. Under this contract-which explicitly called him an independent contractor-Driver could choose his own hours and the routes he believed were safest and most direct, contract with Q.D.-A.'s competitors, decline any work offered by Q.D.-A., negotiate his pay for each trip, and hire other drivers to complete his deliveries if they were qualified under federal regulations. Because Q.D.-A. believed these terms made Driver an independent contractor instead of an employee, it did not pay unemployment taxes for him.

After parting ways with Q.D.-A., Driver filed for unemployment benefits with the Department of Workforce Development. Because Q.D.-A. did not pay unemployment taxes for Driver, the Department investigated to determine whether Q.D.-A. should have classified Driver as an employee. After examining their contract and speaking with Driver and representatives from Q.D.-A., the Department analyzed their relationship under the statutory "ABC Test."

To prevail under this test, Q.D.-A. needed to show that (A) Driver was free from its control and direction, (B) Driver performed his work outside the company's usual course of business, and (C) Driver was customarily engaged in an independently established trade or business of the work performed. See Ind. Code § 22-4-8-1(b). After looking at all the evidence, the Department determined that Q.D.-A. failed to prove any of those three prongs. According to the Department, Driver was an employee.

Q.D.-A. protested. At a hearing before a Liability Administrative Law Judge (or LALJ), the Department's sole witness, the investigator who classified Driver as an employee, acknowledged that

• She knew nothing about Q.D.-A.'s two-day orientation or internal policies,
• She believed Q.D.-A. showed control over Driver when it required him to follow state and federal regulations,
• Driver's unilateral ability to choose how to do his job could be considered the "opposite" of control,
• It would be "very odd" for an employer to allow an employee to hire someone else to do his job, and
• Q.D.-A. acted as a "middleman" between drivers and customers.

Tr. Vol. 2, pp. 19, 22-23, 29, 31, 32, 40.

On the other hand, Q.D.-A.'s director of administration and dispatch supervisor both testified that

• Q.D.-A. provided neither direction to Driver on how he should perform his job nor evaluation of his performance,
• Q.D.-A. permitted Driver to outsource his work to other drivers,
• Driver could negotiate his pay for each trip and could work for more than one drive-away company, • Driver paid for all incidental expenses (like lodging, meals, tolls, and fuel) and provided all equipment (like any vehicle he towed to drive back home, hitch equipment, tow bars, light connectors, safety triangles, and fire extinguishers),
• Driver could refuse any jobs offered to him with no repercussions and could call in at his convenience to see if any jobs were available,
• The primary purpose of the orientation and internal policies is "to go over the regulations brought on by the federal government,"
• Q.D.-A. only employs individuals to "pair the customer with the contractor,"
• Although Q.D.-A. registered as a motor carrier with the federal government and has a Department of Transportation (DOT) number, it is "very common" in the industry for "contractors [to] contract with a motor carrier or the middle man who has the DOT number,"
• All drive-away companies must comply with federal regulations, and
• Driver was personally liable to follow federal regulations.

Tr. Vol. 2, pp. 42-53, 66-67, 70, 74, 76, 80, 85.

After the hearing, the LALJ affirmed the Department's classification, concluding that even though Q.D.-A. had established that Driver ran an independently established business, it had failed to prove the two other prongs. First, the LALJ reasoned, Q.D.-A. controlled Driver because it provided "a two-day orientation to its independent contractors," trained them on federal regulations and employer policies, and required them to perform a driving test. Ex. Vol. 4, p.102. And second, the LALJ opined, Driver performed work within Q.D.-A.'s usual course of business because Q.D.-A. "is a provider of one-way transportation of commodities" and "[t]he independent contractors provide those services to the clients on behalf of the employer." Id.

Q.D.-A. appealed, and a divided panel of our Court of Appeals reversed, holding that Q.D.-A. satisfied the ABC Test. Q. D.-A., Inc. v. Indiana Dep't of Workforce Dev. , 96 N.E.3d 620, 627 (Ind. Ct. App. 2018), vacated . First, the majority determined, Q.D.-A.'s "one-time orientation session" and "incorporation of federal regulations" into its policies did "not demonstrate the kind of ongoing control over work methods needed to show control and direction." Id. at 626. Second, Q.D.-A. and Driver offered "complementary" yet distinct services because, the majority reasoned, Q.D.-A. "functions as an intermediary or middleman" when it employs people to pair customers and drivers. Id. at 627. And third, the majority noted, neither party disputed the LALJ's finding that Driver "was customarily engaged in an independently established trade, occupation, profession, or business of transporting commodities." Id.

The dissent pointed to another Court of Appeals opinion seemingly in conflict with the panel's decision here. Id. at 627-29. See Company v. Indiana Dep't of Workforce Dev. , 86 N.E.3d 204, 209 (Ind. Ct. App. 2017) (holding that an LALJ's conclusion that a drive-away driver was an employee of a company was reasonable). Since we agree that "[t]he Court of Appeals has entered a decision in conflict with another decision of the Court of Appeals on the same important issue," Ind. Appellate Rule 57(H)(1), we grant the Department's petition to transfer. In resolving this conflict in decisions, we also reverse the LALJ.

Standard of Review

Under the Unemployment Compensation Act, "[a]ny decision of the liability administrative law judge shall be conclusive and binding as to all questions of fact." I.C. § 22-4-32-9(a) (2018). But when challenged as contrary to law, we review the LALJ's decision for the "sufficiency of the facts found to sustain the decision" and the "sufficiency of the evidence to sustain the finding of facts." I.C. § 22-4-32-12 (1990). Under this standard, we review an LALJ's (1) findings of basic fact to ensure "substantial evidence" supports those findings, (2) conclusions of law for correctness, and (3) inferences or conclusions from basic facts, often called "mixed questions of law and fact," for reasonableness. McClain v. Review Bd. of Indiana Dep't of Workforce Dev. , 693 N.E.2d 1314, 1317-18 (Ind. 1998).

Since the LALJ's conclusion of whether Driver met the ABC Test is a mixed question of law and fact, we review it for reasonableness. And because deciding whether a worker is an employee or independent contractor falls within the special competence of the Department, we show "greater deference" to the reasonableness of the Department's determination. Id. at 1318. But even when showing this heightened deference, we will not blindly sustain the determination of the Department and will reverse "if the underlying facts are not supported by substantial evidence," if "the logic of the inference is faulty," or "if the agency proceeds under an incorrect view of the law." Id.

Discussion and Decision

The Unemployment Compensation Act requires employers to pay unemployment taxes for employees but does not require them to pay those taxes for independent contractors. I.C. §§ 22-4-10-1(a), -4-2, -8-1. The Act's ABC Test-so called because of its former statutory placement-presumes a worker is an employee unless an employer can establish three prongs:

(1) The individual has been and will continue to be free from control and direction in connection with the performance of such service, both under the individual's contract of service and in fact.
(2) The service is performed outside the usual course of the business for which the service is performed.
(3) The individual:
(A) is customarily engaged in an independently established trade, occupation, profession, or business of the same nature as that involved in the service performed; or
(B) is a sales agent who receives remuneration solely upon a commission basis and who is the master of the individual's own time and effort.

I.C. § 22-4-8-1(b). Finding that Q.D.-A. has established all three prongs, we hold that Driver was an independent contractor.

A. Driver was not under Q.D.-A.'s control or direction.

First, to show that Driver was an independent contractor, Q.D.-A. must demonstrate it lacked control and direction over Driver, both under contract and in fact. See I.C. § 22-4-8-1(b)(1).

Under contract, Q.D.-A. and Driver "expressly understood and agreed" that Driver was an independent contractor. Ex. Vol. 3, p.16. This contract required Driver to provide all his own equipment and gave him ultimate control over how to complete his work. And the contract allowed Driver to provide drive-away services for any competitor and hire his own sub-contractors to complete his deliveries. Under contract, Q.D.-A. lacked control over Driver.

To show that it lacked control over Driver in fact, Q.D.-A. must show that it did not control the " 'manner, method, and means' " in which he performed his services. Circle Health Partners, Inc. v. Unemployment Ins. Appeals of Indiana Dep't of Workforce Dev. , 47 N.E.3d 1239, 1243 (Ind. Ct. App. 2015) (quoting Alumiwall Corp. v. Indiana Emp't Sec. Bd. , 130 Ind. App. 535, 541, 167 N.E.2d 60, 62 (1960) ). First, despite the Department arguing that Q.D.-A. controlled Driver because it required him to follow federal regulations, we agree with the United States Court of Appeals for the District of Columbia Circuit that "[g]overnment regulations constitute supervision not by the employer but by the state." Local 777, Democratic Union Org. Comm., Seafarers Int'l Union of N. Am., AFL-CIO v. NLRB , 603 F.2d 862, 875 (1978). The LALJ saw no evidence that the orientation or company policies went beyond echoing government regulations. Q.D.-A.'s Director of Administration testified that the purpose of the orientation was "to go over the regulations brought on by the federal government" and the company policies merely reiterated "federal motor carrier regulations." Tr. Vol. 2, pp. 45, 46. The Department's sole witness, on the other hand, testified that she knew nothing about Q.D.-A.'s orientation or policies. Since Q.D.-A.'s orientation and policies merely relayed government regulations to Driver that he was already required to obey, Q.D.-A. did not control him by requiring him to follow them.

Independent of this government-regulation analysis, we hold Q.D.-A.'s control over Driver insufficient to form an employer-employee relationship because requiring work to be completed "in a good and workmanlike manner ... is inherent in all services performed by one for another." Alumiwall , 130 Ind. App. at 541, 167 N.E.2d at 62. Q.D.-A. merely required Driver to complete his work in this competent manner by asking him to successfully complete the trips.

Q.D.-A. gave no guidance to Driver on how he should perform his work and never evaluated or monitored him. See Twin States Pub. Co. v. Indiana Unemployment Ins. Bd. , 678 N.E.2d 110, 114 (Ind. Ct. App. 1997) (holding that newspaper carriers were independent contractors when a publishing company required only that they "deliver the guides by 5:00 p.m. on Tuesdays" and "place the guides in a dry place"), trans. denied. Cf. Circle Health , 47 N.E.3d at 1245 (holding that health professionals were employees when they were given, in precise order and exacting detail, "eighteen specific steps to complete"); Bloomington Area Arts Council v. Dep't of Workforce Dev., Unemployment Ins. Appeals , 821 N.E.2d 843, 850-51 (Ind. Ct. App. 2005) (holding that instructors were employees when an art education center monitored teacher performance and required them to adhere to center-specific policies in its instructor's manual).

Driver could refuse jobs with no repercussions, work for as many drive-away companies as he wanted, negotiate his per-trip pay, and call in at his own convenience for jobs. Cf. Circle Health , 47 N.E.3d at 1245 (holding that health professionals were employees when they could not "conduct the screenings at times other than the hours scheduled for the screenings"); Bloomington Area Arts Council , 821 N.E.2d at 850-51 (holding that instructors were employees when an art education center decided if and when to offer classes and expected teachers "to find and pay a substitute if one is necessary").

Driver also provided his own tools and equipment, paid for any incidental expenses, and could determine the payment and guidelines for any drivers he hired who qualified under federal regulations. See Alumiwall , 130 Ind. App. at 540-41, 167 N.E.2d at 62 (holding that siding installers were independent contractors when they "provided their own tools and equipment" and could "hire helpers and determine the wage scale of such helpers"). Cf. Circle Health , 47 N.E.3d at 1245 (holding that health professionals were employees when they could not "send others to complete the work").

In sum, Driver had total control over how-and even if-he completed his work. No evidence shows Q.D.-A., in fact, controlled Driver in a way that would make him an employee. Instead, as the Department's investigator herself contemplated, all these facts show the "opposite" of control.

Because all evidence showed that Driver, under contract and in fact, was free from Q.D.-A.'s direction and control, the LALJ's contrary conclusion was unreasonable.

B. Driver performed a service outside Q.D.-A.'s usual course of business.

Second, for Q.D.-A. to establish that Driver was an independent contractor, it must show that he performed a service outside its usual course of business. See I.C. § 22-4-8-1(b)(2). With no Indiana case clearly defining "course of business," we adopt the definition applied by two of our sister states under their respective ABC Tests: "if an enterprise undertakes an activity, not as an isolated instance but as a regular or continuous practice, the activity will constitute part of the enterprise's usual course of business irrespective of its substantiality in relation to the other activities engaged in by the enterprise." Appeal of Niadni, Inc. , 166 N.H. 256, 93 A.3d 728, 732 (2014) (alterations removed) (quoting Mattatuck Museum v. Unemployment Comp., 238 Conn. 273, 679 A.2d 347, 351 (1996) ). In other words, if a company regularly or continually performs an activity, no matter the scale, it is part of the company's usual course of business. And if a company regularly or continually performs activities showing it is "engaged in various separate and independent kinds of businesses or occupations," it may have more than one course of business. Scott v. Rhoads , 114 Ind. App. 150, 150, 51 N.E.2d 89, 91 (1943).

Consistent with this definition, our Court of Appeals in Twin States held that the "delivery of shopping guides" by newspaper carriers was outside a publishing company's usual course of business. 678 N.E.2d at 114. There, the company did not regularly or continually deliver shopping guides. Instead, that task was left exclusively to the carriers. And in Bloomington Area Arts Council , the instruction of art classes was within an art education center's usual course of business when it "regularly offer[ed] the art classes as part of its mission to provide access to the arts in the community." 821 N.E.2d at 852. Unlike the publishing company and newspaper carriers in Twin States , both the art education center and the teachers regularly or continually performed the same activity-providing art classes to the public.

Here, the parties agree that Driver provided drive-away services. So, to determine whether he performed a service within Q.D.-A.'s usual course of business, we need only decide if Q.D.-A. also provided drive-away services.

First, the Department argues that the way Q.D.-A. markets itself should factor into whether it provided drive-away services. But this marketing plays little, if any, direct role in analyzing the activities Q.D.-A. performs on a regular or continual basis. To be sure, advertising can reflect services a company offers to its customers. But we cannot uncritically rely on that advertising to fully reflect the activities a company regularly or continually performs.

Second, the Department argues that Q.D.-A.'s registration with the DOT shows it provided drive-away services. But federal law compels this registration for any "broker" who arranges motor carrier transportation between parties. 49 U.S.C. § 13904(a) (2012). See also 49 U.S.C. § 13102(2) (2008) (defining "broker" as "a person, other than a motor carrier or an employee or agent of a motor carrier, that as a principal or agent sells, offers for sale, negotiates for, or holds itself out by solicitation, advertisement, or otherwise as selling, providing, or arranging for, transportation by motor carrier for compensation"). As the Department's witness agreed, independent contractors across the United States often operate under the DOT registration of general contractors. In line with this national practice, Driver operated under Q.D.-A.'s DOT broker registration as an independent contractor. Altogether, no evidence shows Q.D.-A. regularly or continually provided drive-away services.

This conclusion, while consistent with Twin States and Bloomington Area Arts Council , directly conflicts with Company . In Company , a panel of our Court of Appeals held that transporting and delivering RVs was within the usual course of business of a company like Q.D.-A. 86 N.E.3d at 208. The Company panel-citing the company's DOT registration, the word "transport" in its corporate name, and its competition with companies offering the same services using employees-"seriously doubt[ed]" that customers contacted the company to act as a "middle man." Id. at 208-209. Instead, according to the panel's "common-sense standpoint," these customers would call the company to transport the RVs without caring how the company accomplished the task. Id. at 209. In other words, the panel supported its conclusion with speculative customer belief and facts not relevant to activities the company regularly or continually performed. By leaving the company's activities unexamined, Company 's reasoning did not answer the statutory question of whether its usual course of business included delivering RVs.

Because Q.D.-A. did not regularly or continually provide drive-away services, the LALJ unreasonably concluded that Driver performed a service within Q.D.-A.'s usual course of business.

C. Driver ran an independently established business.

Third and finally, neither party disputes the LALJ's finding that Q.D.-A. "provided sufficient evidence to demonstrate that [Driver] was customarily engaged in an independently established trade, occupation, profession, or business of transporting commodities." Ex. Vol. 4, p.102. See I.C. § 22-4-8-1(b)(3). So we assume Q.D.-A. meets this prong of the ABC Test.

Conclusion

The LALJ unreasonably concluded that Driver was Q.D.-A.'s employee under the Unemployment Compensation Act when Driver (1) was not under Q.D.-A.'s control or direction, (2) performed a service outside Q.D.-A.'s usual course of business, and (3) ran an independently established business. We reverse.

Rush, C.J., and David and Goff, JJ., concur.

Slaughter, J., concurs in result.


author: Robb, Judge.

text:
    K.S., Appellant-Respondent, v. STATE of Indiana, Appellee-Petitioner.
    Court of Appeals Case No. 18A-JV-1304
    Court of Appeals of Indiana.
    FILED October 31, 2018 Publication Ordered November 21, 2018
    Attorney for Appellant: Cara Schaefer Wieneke, Wieneke Law Office, LLC, Brooklyn, Indiana
    Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, George P. Sherman, Supervising Deputy Attorney General, Indianapolis, Indiana
   Robb, Judge.

Case Summary and Issue

[1] When K.S. was adjudicated a delinquent child in February 2018, the juvenile court awarded wardship of him to the Indiana Department of Correction ("DOC") but suspended the commitment and placed K.S. on probation. The State subsequently filed a petition to modify the dispositional decree, and upon finding that K.S. had committed batteries on family members while on probation, the juvenile court committed K.S. to the DOC. K.S. now appeals, raising two issues for our review that we consolidate and restate as one: whether the juvenile court abused its discretion in modifying K.S.'s placement when it did not make a specific finding as to K.S.'s status and did not consider less restrictive placements. Concluding the trial court did not abuse its discretion, we affirm.

Facts and Procedural History

[2] K.S. and his siblings were adopted by their grandmother, Teresa, after they were abandoned by their parents and an adoptive placement with their aunt and uncle was terminated. Teresa often called the police when K.S. was disobeying her or acting out; an incident report from the North Vernon Police Department about a December 3, 2017 dispatch to the house stated:

Officers have been dispatched to this address a total of 19 times between August 2016 and December of this year. The nature of the calls are threats, juvenile problems, Domestic Disturbance and Disturbance. Most if not all of these calls were due to [K.S.'s] actions.

Appellant's Appendix, Volume 2 at 36.

[3] Although never fully diagnosed, it appears K.S. suffers from several mental health disorders, and he has been prescribed various medications. In late 2017, K.S. was admitted to Bloomington Meadows Hospital for three days after expressing suicidal thoughts. He also sees a psychologist weekly and works with two therapists on life skills through Centerstone, a provider of behavioral health services. At some point, the Indiana Department of Child Services ("DCS") became involved with the family to investigate neglect of the children.

[4] On January 30, 2018, the State filed a petition alleging K.S. was a delinquent child due to committing acts that, if committed by an adult, would constitute theft, a Class A misdemeanor, for stealing earbuds from his school; battery, a Class B misdemeanor, for hitting his brother; and battery, a Class B misdemeanor, for hitting his sister. It was noted in the preliminary inquiry report that there was an "[a]ctive neglect investigation by DCS." Id. at 11. However, the probation officer affirmed that he had completed a factual review of the child's status and history pursuant to Indiana Code section 31-37-8-1 and reported that K.S. "has NOT been identified as a dual status child." Id. at 13. K.S. admitted to the allegations and on February 15, 2018, the juvenile court issued a dispositional decree in which it awarded wardship of K.S. to the DOC but suspended his commitment and placed K.S. on probation for one year. During his probation, K.S. was to attend school every day; obey all laws; consent to reasonable searches of his home, vehicle, or person; participate in and successfully complete counseling; and pay fees and costs.

[5] By April of 2018, K.S. was detained at the Bartholomew County Juvenile Detention Center "to protect himself, his family and the community from further acts of juvenile delinquency." Id. at 67. Police had been called to Teresa's residence at least four times after the February disposition. Specifically, Teresa called the police on one occasion when K.S. left the house without permission and on three other occasions when K.S. hit one or more members of the family. Following the fourth call, K.S. was detained.

[6] On April 24, 2018, the State filed a petition to modify the dispositional decree, alleging K.S. had failed to obey all laws and requesting that the disposition be modified to commitment to the Indiana Boys School. The modification report from the juvenile division recommended that K.S. be sent to the Boys School because "[h]e is unlikely to change his behavior." Id. at 72. On April 30, 2018, K.S. admitted he committed the alleged batteries and the trial court held a dispositional hearing. Teresa testified that she had tried to find K.S. a residential placement through Centerstone but was unable to do so because of his inappropriate behaviors. Although Teresa believed K.S. is capable of obeying the rules, he just "chooses not to." Transcript of the Evidence, Volume 2 at 15.

[7] Andrew Judd, K.S.'s probation officer, testified that he had worked with DCS and Centerstone to try to find a placement for K.S. at "every facility we could think of in the State" but he was denied "[p]rimarily because of his aggressive behavior[.]" Id. at 22-23. Judd recommended that K.S. be placed at the Boys School because "they have twelve different facilities throughout the State that they use, they do a two-week psychiatric evaluation before he's made a placement."Id. at 23. "[T]he other good thing about Indiana Boy [sic] School ... is that the only way to get out ... is to earn your way out, you have to work the program, ... and in [K.S.'s] case, he needs to learn that he needs to change his behavior for real and for good[.]" Id. Judd noted that K.S. was a "model prisoner" when he was detained in the past and was doing well in detention currently. Id. at 24.

[8] K.S. also testified to his thoughts regarding the modification of his dispositional order. He felt being placed at the Boys School would be "okay" because of the issues in his past and how well he was doing in detention currently. Id. at 28. He noted he "would love to go back home, but ... it's not really gonna be a good decision to go back home right now, cause I'm not ready." Id.

[9] The juvenile court modified K.S.'s disposition and ordered him committed to the Indiana Boys School:

I've been doing this almost twenty-two years, and in that period of time I can probably still count on my hands and my feet the number of kids that I've sent to the detention center ..., because I realize that it's kind of the end of the road as far as what I can do to try to help people. But, this is a case where there's nothing else for me to do.... [I]f [the Boys School] can't help you get this done you'll at least figure out that there are consequences for bad behavior.

Id. at 29-30. K.S. now appeals.

Discussion and Decision

Modification of Delinquency Disposition

[10] K.S. claims the juvenile court abused its discretion in committing him to DOC for placement at the Indiana Boys School because it did not properly assess whether he was a dual status child as required by statute and did not impose the least restrictive dispositional alternative.

A. Dual Status

[11] "Research has demonstrated that there is a greater likelihood of delinquency among children who have suffered abuse and neglect." Dual Status Resource Notebook, Tab 3: Why Dual Status?, https://www.in.gov/judiciary/probation/files/Dual% 20Status% 20Resource% 20Notebook.pdf (last visited October 18, 2018). Indiana Code Article 31-41 was enacted in 2015 to address the specific needs of these children by providing both the child welfare system and the juvenile justice system "tools to identify, communicate and implement a coordinated plan that serves a child's best interests and welfare." Id. Therefore, when a child enters either the child welfare system or the juvenile justice system, the court and responding agencies must determine whether a child is a dual status child and proceed accordingly. See Ind. Code § 31-34-7-1 (requiring dual status determination in preliminary inquiry of a child in need of services ("CHINS") allegation); Ind. Code § 31-37-8-1 (requiring same in preliminary inquiry of a delinquency allegation).

[12] As potentially relevant to this case, a "dual status child" is defined as one who, among other things:

• is alleged to be or is presently adjudicated to be a CHINS and is alleged to be or is presently adjudicated to be a delinquent child, Ind. Code § 31-41-1-2(1) ;
• is presently named in an informal adjustment under the CHINS statute and who is adjudicated a delinquent child, Ind. Code § 31-41-1-2(2) ; or
• who has been previously adjudicated a CHINS or was a participant in an informal adjustment under the CHINS statute and was under a wardship that has been terminated or a program of informal adjustment that has been terminated before the current delinquency petition, Ind. Code § 31-41-1-2(4).

[13] There are at least three times in the juvenile delinquency process when a dual status screening tool is to be completed: when an intake officer makes the preliminary inquiry, Ind. Code §§ 31-37-8-1, -2; when a juvenile court finds a child is a delinquent child, Ind. Code § 31-37-13-2 ; and when a probation officer prepares a predispositional report, Ind. Code § 31-37-17-6.1. The "dual status screening tool" is "a factual review of a child's status and history" used to determine whether the child meets the definition of a dual status child such that the child should be referred for an assessment by a dual status assessment team. Ind. Code §§ 31-41-1-3, 31-37-8-5. Finally, the juvenile court's dispositional decree is to be accompanied by written findings and conclusions including a specific finding as to whether the child is a dual status child. Ind. Code § 31-37-18-9(a)(6).

[14] K.S. contends he was denied due process when the juvenile court failed to make a specific finding as to whether he was a dual status child. We begin by noting the State argues K.S.'s claim was waived for failure to raise it to the juvenile court. When modification of a dispositional decree is requested, the probation department must complete a modification report governed by the requirements for a predispositional report, Ind. Code § 31-37-22-4 (incorporating the requirements of Ind. Code ch. 31-37-17 regarding predispositional reports), and the juvenile court must comply with the requirements governing dispositional orders, including the requirement for written findings and conclusions, Ind. Code § 31-37-22-3(c) (incorporating the requirements of Indiana Code section 31-37-18-9 ). As a dual status screening tool is therefore to be completed in a modification report, as the juvenile court is to include a finding as to whether the child is a dual status child in its modified dispositional order, and as a child's status in the child welfare system can change during delinquency proceedings, it is unclear when the State thinks K.S. should have objected to the juvenile court's failure to do so before now. K.S. could not have known the juvenile court would not make the required finding until the modified dispositional order was entered. Moreover, K.S. primarily uses the possibility of his dual status as a reason why the trial court's modification disposition was an abuse of discretion.

[15] "The standard for determining what due process requires in a particular juvenile proceeding is 'fundamental fairness.' " D.A. v. State , 967 N.E.2d 59, 64 (Ind. Ct. App. 2012). A juvenile charged with delinquency is entitled to the "common law jurisprudential principles which experience and reason have shown are necessary to give the accused the essence of a fair trial." K.A. v. State , 938 N.E.2d 1272, 1274 (Ind. Ct. App. 2010), trans. denied . These principles include the right to have a competency determination, the right to notice of the charges, the right to counsel, the privilege against self-incrimination, and the right to confront witnesses, and, in the case of a modification, the right to an evidentiary hearing. Id. at 1274-75.

[16] K.S. is correct that the legislature has provided a fairly detailed list of procedural requirements for juvenile courts to follow in delinquency proceedings and he is also correct that the juvenile court's modification order does not comply with the relevant statute as it does not make a specific finding as to K.S.'s status. Although the modification order fails to include a specific finding as to K.S.'s dual status, the record shows that the intake officer completing the preliminary inquiry in January 2018 had information regarding K.S.'s birth parents, the failed adoption by his aunt and uncle, and the current DCS involvement with the family, but reported that K.S. was not identified as a dual status child. Appellant's App., Vol. 2 at 13. K.S.'s probation officer was clearly aware of K.S.'s situation, yet he still recommended the juvenile court proceed with delinquency proceedings and then, just three months later, recommended that K.S.'s placement be changed to the Indiana Boys School. The brief and cryptic references in the paper record may suggest the possibility that K.S. could be a dual status child, but there is no clear indication of K.S.'s status within the child welfare system and certainly no indication that his status changed between the preliminary inquiry and the modification hearing. These procedural deficiencies, however, do not rise to the level of a constitutional violation because K.S. was given notice of the charges against him alleged to warrant modification of his placement, had counsel, and was afforded an evidentiary hearing at which no evidence was adduced that would clearly support a finding that he was a dual status child. K.S.'s background is nevertheless a factor to be considered in the appropriate disposition.

B. Placement on Modification

[17] K.S. also challenges the juvenile court's order modifying the dispositional decree, alleging there were other "intermediate" dispositional alternatives available besides commitment to the DOC. Corrected Brief of Appellant at 28.

[18] The juvenile court is accorded "wide latitude and great flexibility in dealing with juveniles[.]" C.T.S. v. State , 781 N.E.2d 1193, 1203 (Ind. Ct. App. 2003), trans. denied . The specific disposition of a delinquent child is within the juvenile court's discretion, to be guided by the following considerations: the safety of the community, the child's best interests and freedom, the least restrictive alternative, family autonomy and life, and the freedom and opportunity for participation of the parent, guardian, or custodian. K.S. v. State , 849 N.E.2d 538, 544 (Ind. 2006) ; see also Ind. Code § 31-37-18-6. We reverse only for an abuse of discretion, that is, a decision that is clearly against the logic and effect of the facts and circumstances before the court, or the reasonable, probable, and actual deductions to be drawn therefrom. K.S. , 849 N.E.2d at 544.

[19] K.S. was offered the opportunity to conform his behavior to an acceptable standard while on probation and was unable to do so for even the shortest period of time. Despite the services being offered to him, including in home mental health and life skills therapy, he continued to act out inappropriately. Even K.S. acknowledged that he was doing better in a more structured environment and that he would likely not be successful if he were to go home at this point. Although K.S. posits he could have been continued on probation and placed in a home without other children, the modification report indicated he was not a candidate for foster placement "because of his previous violent behavior." Appellant's App., Vol. 2 at 72. Also, this was not an original proceeding - K.S. was already under a suspended commitment to the DOC. He clearly knew the consequences of failing to live up to the terms of his probation. With evidence that K.S. had multiple chances to change his behavior but instead repeatedly violated his probation in a short period of time, the juvenile court reasonably concluded that commitment to the DOC, where his mental health issues could be evaluated and his particular needs addressed at an appropriate facility, served everyone's best interests.

Conclusion

[20] The juvenile court did not abuse its discretion in modifying K.S.'s placement and ordering his commitment to the DOC. The juvenile court's modification order is therefore affirmed.

[21] Affirmed.

Baker, J., and May, J., concur.

Order

[1] Appellant, by counsel, filed a Motion for Publication.

[2] Having reviewed the matter, the Court finds and orders as follows:

1. The Appellant's Motion for Publication is granted. This Court's opinion heretofore handed down in this cause on October 31, 2018, marked Memorandum Decision, is now ordered published.
2. The Clerk of this Court is directed to send copies of said opinion together with copies of this order to the West Publishing Company and to all other services to which published opinions are normally sent.

[3] Ordered 11/21/2018.

[4] Baker, May, Robb, JJ., concur.

      The "dual status assessment team" is a committee assembled by a juvenile court to recommend the proper legal course for a dual status child. Ind. Code § 31-41-1-5.


author: Riley, Judge.

text:
    In the MATTER OF the GUARDIANSHIP OF Irma Elisabeth Avila LUIS
    Ramiro Velasquez Avila, Appellant-Petitioner.
    Court of Appeals Case No. 18A-GU-1312
    Court of Appeals of Indiana.
    Filed November 8, 2018
    Attorney for Appellant: Thomas J.O. Moore, Indianapolis, Indiana, Alexander E. Budzenski, Indianapolis, Indiana
   Riley, Judge.

STATEMENT OF THE CASE

[1] Appellant-Petitioner, Ramiro Velasquez Avila (Avila), appeals the trial court's Order appointing him guardian of his minor sister, Irma Elisabeth Avila Luis (Irma), because the trial court refused to articulate special immigrant juvenile findings in accordance with 8 U.S.C. § 1101(a)(27)(J).

[2] We affirm in part, reverse in part, and remand with instructions.

ISSUE

[3] Avila presents us with one issue on appeal, which we restate as: Whether the trial court was required to make findings on Irma's special immigrant juvenile status in accordance with 8 U.S.C. § 1101(a)(27)(J).

FACTS AND PROCEDURAL HISTORY

[4] Irma, born on May 20, 2000, in Chisec, Guatemala, is a native and citizen of Guatemala. Irma's father, Hilario Velasquez de la Cruz, died when she was three years old. Until 2016, Irma lived with her mother, Julia Avila Luis (Mother), in Guatemala. In 2016, Mother became unable to provide care for Irma. She no longer could afford to feed Irma, send her to school, and provide her with medical care. Mother put Irma on a bus to the United States.

[5] After several weeks of travelling alone to the Mexican-American border, Irma entered the United States and was detained by immigration officials and taken into federal custody. Eventually, the federal government released Irma into the custody of her brother, Avila, who resides in Seymour, Indiana. Since her release from federal custody, Irma has lived with her brother in Indiana. She is studying English and attending Seymour High School in the tenth grade. Avila meets Irma's basic needs and supports her financially and emotionally.

[6] On March 2, 2018, Avila petitioned the trial court to appoint him as guardian of his sister and requested the trial court to make certain findings necessary for Irma to seek classification as a special immigrant juvenile before the United States Citizenship and Immigration Services (USCIS) in accordance with 8 U.S.C. § 1101(a)(27)(J). On May 11, 2018, the trial court conducted a hearing on Avila's petition.

During the hearing, the trial court felt "very uncomfortable making those kinds of findings." (Transcript p. 17). The court stated that it had "a real problem" because the federal government "[t]hrowing it on me to make factual findings for them [is] irritat[ing]." (Tr. p. 20). "It should be made by [f]ederal officials. They're the one that makes the decision of who comes in the United States, who leave the United States, not me. And that's why I have a problem with this .... Immigration [j]udges are [i]mmigration [j]udges for a reason. That's their decision." (Tr. pp. 21-22). On May 17, 2018, the trial court issued its findings of facts and Order, appointing Avila as guardian of Irma and finding, in pertinent part:

6. Irma's mother, [Mother], is a native of Guatemala. According to [ I.C. §] 31-21-2-2, "abandoned" means left without provision for reasonable and necessary care or supervision. Accordingly, Irma's mother neglected and abandoned Irma by allowing her to travel across several countries alone.
7. Irma's father, [ ], was a native of Guatemala. He died on October 6, 2003, and abandoned Irma before she was born. He was never a part of her life and passed away when she was three years old.
8. [Avila], petitioner, is Irma's brother. Petitioner is twenty-one (21) years old and resides in Seymour, Indiana with Irma.
9. No person has objected to Petitioner being appointed Guardian of Irma.
10. Irma cannot care for herself.
11. For the foregoing reasons, the [c]ourt further finds that:
a. Irma has been abandoned and neglected by both of her parents in that her father abandoned her before birth and died, and her mother allowed her [to] make a dangerous journey across several countries alone[.]

(Appellant's App. Vol. II, p. 5).

[7] Avila now appeals. Additional facts will be provided if necessary.

DISCUSSION AND DECISION

[8] Avila does not contest the trial court's affirmative findings. The trial court's Order is silent, however, with regard to the requested findings on Irma's immigration status, and Avila contends that the trial court erred by failing to articulate such findings. Although there are no appellate decisions in Indiana discussing the procedure for obtaining special immigrant juvenile status before our state juvenile courts, our sister states have created a wealth of case law which we will consult for guidance and interpretation in this issue of first impression.

[9] Federal law provides a path to lawful permanent residency in the United States to resident alien children who qualify for "special immigrant juvenile" (SIJ) status. 8 U.S.C. § 1101(a)(27)(J) ; 8 C.F.R. § 204.11. "Congress created the SIJ classification to protect abused, neglected, and abandoned immigrant youth through a process allowing them to become legal permanent citizens." In the Interest of J.J.X.C., a Child , 318 Ga. App. 420, 424, 734 S.E.2d 120 (Ga. Ct. App. 2012).

[10] To be eligible to petition the federal government for SIJ status, the resident alien must be under the age of 21 and unmarried. 8 C.F.R. § 204.11(c). The child must have been declared dependent upon a state juvenile court "or whom the court ... has legally ... placed under the custody of ... an individual[.]" 8 U.S.C. § 1101(a)(27)(J). In addition, the juvenile court must make two additional findings: (1) "reunification with one or both of the immigrant's parents is not viable due to abuse, neglect, abandonment, or a similar basis found under State law;" and (2) "it would not be in the alien's best interest to be returned to the alien's or parent's previous country of nationality or country of last habitual residence." 8 U.S.C. § 1101(a)(27)(J)(i), (ii). The language of the first finding is designed to "prevent youths from using this remedy for the purpose of obtaining legal permanent resident status, rather than for the purpose of obtaining relief from abuse or neglect." In re Erick M. , 284 Neb. 340, 820 N.W.2d 639, 645 (2012) (quoting 3 Charles Gordon et al., Immigration Law and Procedure § 35.09(1) at 35-36 (rev. ed. 2001), citing H.R. Rep. No. 105-405(1997) (Conf. Rep.) ). Although the juvenile court determines whether the evidence supports the findings, the final decision regarding SIJ status rests with the federal government. 8 U.S.C. § 1101(a) (27(J)(iii).

[11] Accordingly, the process for obtaining SIJ status is " 'a unique hybrid procedure that directs the collaboration of state and federal systems.' " In re Marisol N.H. , 115 A.D. 3d 185, 188, 979 N.Y.S.2d 643 (N.Y. App. Div. 2014) (quoting In re Hei Ting C. , 109 A.D. 3d 100, 104, 969 N.Y.S.2d 150 (N.Y. 2013) ). In this hybrid proceeding, the state juvenile court is charged with making the factual inquiry relevant to SIJ status when an unmarried, resident alien child is found to be dependent on the court. "The SIJ statute affirms the institutional competence of state courts as the appropriate forum for child welfare determinations regarding abuse, neglect, or abandonment, and a child's best interests." In re J.J.X.C. , 318 Ga. App. at 425, 734 S.E.2d 120. Therefore, courts in other states have held that a juvenile court errs by failing to consider a request for SIJ findings. See id. ; In re Mohamed B. , 83 A.D. 3d 829, 831, 921 N.Y.S.2d 145 (N.Y.A.D. 2011) (child moved for SIJ findings during guardianship proceeding in family court); In re Interest of Luis G. , 17 Neb.App. 377, 764 N.W.2d 648 (2009) (motions regarding SIJ status filed during juvenile cases addressing guardianship and foster care). "By making these preliminary factual findings, the juvenile court is not rendering an immigration determination." H.S.P. v. J.K. , 223 N.J. 196, 121 A.3d 849, 858 (2015). The predicate order issued by a state court is merely a prerequisite that must be fulfilled before a juvenile can submit his or her application for SIJ status to USCIS in the form of an I-360 petition. Id. If USCIS approves the juvenile's I-360, he or she will be granted SIJ status. Id.

[12] Thus, a state court's role in the SIJ process is not to determine worthy candidates for citizenship, but simply to identify abused, neglected, or abandoned alien children under its jurisdiction who cannot reunify with a parent or be safely returned in their best interests to their home country. As aptly observed by the court in Mario S ., the SIJ statute and accompanying regulations

commit ... specific and limited issues to state juvenile courts. The juvenile court need not determine any other issues, such as what the motivation of the juvenile in making application for the required findings might be; whether allowing a particular child to remain in the United States might someday pose some unknown threat to public safety; and whether the USCIS, the federal administrative agency charged with enforcing the immigration laws, may or may not grant a particular application for adjustment of status as a SIJ.

In re Mario S. 38 Misc.3d 444, 954 N.Y.S.2d 843, 852-53 (N.Y. Fam. Ct. 2012) (internal citations omitted). Mario S . further explained that if "the USCIS denies a juvenile alien's application for legal permanent residence as a [SIJ]," the juvenile's remedy lies not in state court, but instead the juvenile must "seek review of the agency's decision in federal court." Id. State courts play no role in the final determination of SIJ status, or ultimately, permanent residency or citizenship, which are federal questions. Nothing in 8 U.S.C. § 1101(a)(27)(J) indicates that Congress intended state juvenile courts to pre-screen potential SIJ applications. Rather, "[t]he juvenile court is simply called upon to determine" discrete factual issues, including "whether, under state law, the juvenile is under the age of 21, unmarried, dependent upon the court through an order of placement or other court order, whether reunification with one or both of the juvenile's parents is not possible due to abuse, neglect, or abandonment of the child, and whether it would be contrary to the juvenile's best interest to be returned to his or her previous country of nationality." Id. at 852.

[13] Thus, although state courts do not make immigration decisions, it is inescapable that a minor seeking SIJ status is dependent upon a state court to make the prerequisite findings in a predicate order for the minor to qualify for such status under the scheme established by federal immigration law. Here, however, the trial court's Order is silent regarding any decision on the SIJ factors despite Avila's request. Likewise, the trial court did not state a basis for declining to make SIJ findings nor did it state that it had considered the SIJ findings and rejected them. Although the trial court is authorized to conclude that the petitioner failed to present evidence to support the SIJ factors or that the presented evidence was not credible, the court nevertheless has a duty to consider the SIJ factors and to make findings. In this unusual setting, where a state court is charged with addressing an issue relevant only to federal immigration law, we cannot affirm the trial court's Order without some positive indication that the court actually addressed Avila's request. Accordingly, we affirm the trial court's appointment of a guardian but remand to the trial court with instruction to consider the request for SIJ findings in light of the evidence presented and articulate the relevant determinations pursuant to 8 U.S.C. § 1101(a)(27)(J).

CONCLUSION

[14] Based on the foregoing, we hold that the trial court erred when it failed to make findings on Irma's special immigrant juvenile status pursuant to 8 U.S.C. § 1101(a)(27)(J). Accordingly, we affirm the trial court's appointment of a guardian but remand for further proceedings in accordance with this decision.

[15] Affirmed in part, reversed in part, and remanded with instructions.

[16] Vaidik, C.J. and Kirsch, J., concur


author: Mathias, Judge.

text:
    Gillian G. MOORMAN, Appellant-Respondent, v. Kyle W. ANDREWS, Appellee-Petitioner.
    Court of Appeals Case No. 18A-JP-1051
    Court of Appeals of Indiana.
    Filed November 9, 2018 Publication Ordered January 2, 2019
    Attorneys for Appellant: Katherine A. Harmon, Jared S. Sunday, Mallor Grodner, LLP, Indianapolis, Indiana
    Attorney for Appellee: Andrea L. Ciobanu, Ciobanu Law, PC, Indianapolis, Indiana
   Mathias, Judge.

[1] Gillian G. Moorman ("Mother") appeals the Grant Superior Court's April 12, 2018 order modifying parenting time in favor of Kyle Andrews ("Father") and finding Mother in contempt. Mother presents several issues on appeal, which we restate as:

I. Whether the trial court erred by finding Mother in contempt of the 2016 parenting time order in this matter and the Indiana Parenting Time Guidelines;
II. Whether it was reversible error to hold an in camera interview of the child; and
III. Whether the trial court erred by basing its decision solely on the in camera interview.

We affirm.

Facts and Procedural History

[2] T.A. was born to Mother and Father in July of 2011. Throughout T.A.'s life, Mother and Father have had difficulty co-parenting. When Mother and Father's relationship declined shortly after T.A.'s birth, in 2012, Father filed a Verified Petition to Establish Paternity and Determine Custody, Parenting Time, and Child Support. Mother and Father initially agreed to joint legal and physical custody of T.A., and the court entered an agreed order awarding the same with specific parenting time orders.

[3] After some time, Mother and Father agreed that joint physical and legal custody was unworkable due to an inability to co-parent. In April of 2015, Father filed a Petition to Modify Custody. After a two-day hearing, on September 28, 2016, the trial court agreed that Mother and Father were unable communicate effectively and awarded Mother sole custody of T.A. The order adopted the regular parenting time schedule pursuant to the Indiana Parenting Time Guidelines ("IPTG") and directed the parties to have Mother designated as the representative payee for Child's Social Security benefits. Father appealed this order, and a panel of our court affirmed all aspects of the trial court's order. Andrews v. Moorman , 86 N.E.3d 239 (Ind. Ct. App. 2017), trans. denied .

[4] On December 22, 2017, Father filed a Motion for Change of Venue from the Judge as well as the Petition to Modify Parenting Time and Affidavit for Citation that give rise to the instant appeal. In his Affidavit for Citation, Father alleged that Mother was in violation of the IPTG because she refused to allow Father to have T.A. when she was unable to care for the child. Father also alleged that Mother refused to meet at the court-ordered location for exchange. In separate motions, he requested that T.A. be placed in counseling and that the court conduct an in camera interview of T.A. in order to assist the court in making its determination.

[5] The trial court held a hearing on Father's motion for contempt. In support of his requests, Father called his previous attorney, T.A.'s paternal grandmother, and himself. Mother served as her own sole witness.

[6] Father's previous counsel testified that, based on his observations, Father and T.A. had a close bond. He had observed Father and T.A. interacting on a couple of occasions, playing miniature golf and visiting a carnival. Based on his conversations with Father, he believed that T.A. was Father's first priority.

[7] T.A.'s paternal grandmother, Susan Stengel ("Stengel"), testified that she wishes to see T.A. more often but is also hesitant to encroach on Father's limited parenting time. She had been able to see T.A. outside of Father's parenting time on a couple of occasions and had asked Mother to see T.A. about three or four times since November 1, 2016. Stengel testified that she had asked Mother if T.A. could attend a family reunion, and Mother never responded. Stengel attended grandparent's day at Mother's invitation and the Christmas program at T.A.'s school. She also indicated that she believed T.A. and Father to be very close. She expressed concern for T.A.'s emotional state. In Stengel's opinion, T.A. appeared to be emotional and anxious.

[8] Father testified that Mother had been taking T.A. with her to work at her dental office instead of allowing him parenting time. He would like to care for T.A. while she was at work with Mother and "[a]ny available time." Tr. p. 41. If he had more time with T.A., he would be agreeable to doing homework with her and enrolling her in extracurriculars. Father believed that extended family members on Mother's side were receiving time with T.A. that was supposed to be offered to him. He also testified that, until the last few weeks prior to the hearing, he had to pick up T.A. from Mother's workplace instead of the court-ordered location. On one occasion, Father had observed a man whom he could not identify dropping T.A. off at her school. On the date of the hearing, Father was unaware that Mother had sought out any counseling for T.A. Father was also concerned that T.A. had been tardy to school on nine separate occasions and that T.A. had been truant on two occasions. Mother and Father had not discussed the tardies and truancies. Lastly, Father testified that he was concerned about T.A.'s emotional state.

[9] Mother testified that she works in her step-grandmother's pediatric dental clinic and that she has been taking T.A. to work with her after T.A. finishes school. Mother testified that other employees also bring their children to work and that Mother watches T.A. while T.A. is at the office with her. She and T.A. stay at work on the days in question until Mother has to pick up T.A.'s half-brother around 4:30 or 5:00 p.m. Mother testified that T.A. had been tardy to school because, although she was dropped off at school on time, T.A. was not going to class on time. Mother dated someone for a period of time, and he was continuously in her home, but this man was no longer in the picture at the time of the hearing. T.A. does occasionally spend overnights with Mother's parents. Mother testified that she had been letting T.A. spend time with Mother's brother who is fighting cancer. She had researched counselors and made an appointment with a counselor for T.A., although she had not yet told Father. She did not make this appointment until Father filed his petition for counseling. Mother testified that she has noticed T.A. being anxious but only since Father filed the petitions at issue. Mother testified that T.A. appeared glossy-eyed and smelled "dingy" when T.A. arrived home from time with her Father. Tr. p. 86.

[10] After the hearing, the trial court conducted an in camera interview of T.A. After the hearing and interview, the trial court found Mother in contempt but issued no sanctions and allowed Mother to purge herself of contempt by following all orders. The trial court also expanded Father's parenting time. In addition to relevant times as prescribed in the IPTG, the trial court extended Father's mid-week parenting time to include an overnight and extended Father's weekend parenting time, allowing Father to keep T.A. overnight from Sunday evening through Monday. The trial court also explicitly noted that Father shall have the Child for "additional parenting time at all times when Mother is working or attending classes or is otherwise unavailable to care for the Child." Appellant's App. p. 34. Mother filed the instant appeal.

Discussion and Decision

[11] "Indiana has long recognized that the rights of parents to visit their children is a precious privilege that should be enjoyed by noncustodial parents." Duncan v. Duncan , 843 N.E.2d 966, 969 (Ind. Ct. App. 2006), trans. denied . "[N]ot only does a noncustodial parent have a presumed right of parenting time, but the child has the correlative right to receive parenting time from the noncustodial parent because it is presumed to be in the child's best interest." Perkinson v. Perkinson , 989 N.E.2d 758, 764 (Ind. 2013). Thus, a noncustodial parent is "generally entitled to reasonable visitation rights." Id. at 762 (quoting Duncan , 843 N.E.2d at 969 ).

[12] "A trial court is empowered to specify and enforce the visitation rights of the non-custodial parent pursuant to the Indiana Code." Id. Courts are to "give foremost consideration to the best interests of the child." Id. at 761 (quoting Marlow v. Marlow , 702 N.E.2d 733, 735 (Ind. Ct. App. 1998), trans. denied ). As such, parenting time may be modified whenever modification would serve the best interest of the child. Miller v. Carpenter , 965 N.E.2d 104, 110 (Ind. Ct. App. 2012). Thus, unlike a modification of physical custody, a modification of parenting time does not require a showing of substantial change. Id.

[13] Upon review of a trial court's determination of a visitation issue, we grant latitude and deference to our trial courts, reversing only when the trial court manifestly abuses its discretion. Kirk v. Kirk , 770 N.E.2d 304, 307 (Ind. 2002) ; Lasater v. Lasater , 809 N.E.2d 380, 400 (Ind. Ct. App. 2004). Therefore, on appeal, it is not enough that the evidence might support some other conclusion, but it must positively require the conclusion contended for by appellant before there is a basis for reversal. Kirk , 770 N.E.2d at 307. No abuse of discretion occurs if there is a rational basis in the record supporting the trial court's determination. Lasater , 809 N.E.2d at 400. We will neither reweigh evidence nor judge the credibility of witnesses. Id. "We will not substitute our own judgment if any evidence or legitimate inferences support the trial court's judgment." Baxendale v. Raich , 878 N.E.2d 1252, 1257-58 (Ind. 2008).

I. Contempt

[14] "Whether a person is in contempt of a court order is a matter left to the trial court's discretion." Evans v. Evans , 766 N.E.2d 1240, 1243 (Ind. Ct. App. 2002) (citing Meyer v. Wolvos , 707 N.E.2d 1029, 1031 (Ind. Ct. App. 1999), trans. denied ). We will reverse the trial court's finding of contempt only where an abuse of discretion has been shown, which occurs only when the trial court's decision is against the logic and effect of the facts and circumstances before it. Id. When we review a contempt order, we neither reweigh the evidence nor judge the credibility of the witnesses. MacIntosh v. MacIntosh , 749 N.E.2d 626, 629 (Ind. Ct. App. 2001), trans. denied . Mother bears the burden of showing that her violation was not willful. Williamson v. Creamer , 722 N.E.2d 863, 865 (Ind. Ct. App. 2000).

[15] In seeking a contempt citation against Mother, Father alleged that Mother violated the IPTG including the provision entitled "Opportunity for Additional Parenting Time." Father also contended that Mother had altered the location for exchanging T.A. The operative provision of the IPTG states:

3. Opportunity for Additional Parenting Time. When it becomes necessary that a child be cared for by a person other than a parent or a responsible household family member, the parent needing the care shall first offer the other parent the opportunity for additional parenting time, if providing the child care by the other parent is practical considering the time available and the distance between residences. The other parent is under no obligation to provide the child care. If the other parent elects to provide this care, it shall be done at no cost and without affecting child support. The parent exercising additional parenting time shall provide the necessary transportation unless the parties otherwise agree.

IPTG § 1(C)(3). The trial court specifically noted that the contempt finding "concerns her conduct before she arranged to enroll the Child in Preschool and then picked her up from Preschool and took the Child to Mother's place of employment." Appellant's App. p. 33

[16] When T.A.'s preschool ended at 2:30 in the afternoon, Mother would leave work to pick up T.A. from preschool and take her to Mother's workplace. Mother routinely left work in time to pick up her other child, T.A.'s half-brother from pre-school by 5:00 p.m. Mother had initially planned to enroll T.A. in day care after her school was over. However, Father had indicated to Mother that he wanted to take T.A. as additional parenting time during the time Mother planned to have T.A. in day care. After this exchange between Mother and Father, Mother changed her plans. She did not enroll T.A. in day care, but instead picked up T.A. from preschool and took T.A. to work with Mother. Mother indicated to Father that if he picked up T.A. when she was done with school, she would "call the cops" on him. Tr. p. 30.

[17] Mother testified that she took T.A. took to work with her and that her usual job duties included cleaning and filling teeth, talking to patients, completing paperwork, scheduling appointments, and other front office duties. Undisputedly, Father was available and willing to care for the child during the time child was at work with Mother.

[18] While Mother was able to leave work to pick up T.A. from preschool, she directed Father to pick up T.A. from Mother's workplace instead of the court-ordered location for exchange. Father acquiesced to this demand for some time in order to see his child. However, in the weeks preceding the hearing, Mother began meeting him at the court-ordered location for exchange.

[19] Based on the evidence before it, the trial court did not find Mother's claim that she was actively parenting during the time T.A. accompanied her to work to be credible. The trial court also determined that Mother was intentionally acting to rearrange her schedule to deprive Father of legitimate and beneficial contact with the Child. We cannot say that the finding of contempt was against the logic and effect of the circumstances before the trial court. To find otherwise would require us to reweigh the evidence and judge the credibility of the witnesses, which we will not do.

II. In Camera Interview

[20] We now turn to Mother's arguments concerning the in camera interview of T.A. First, she argues that the trial court lacked statutory authority to conduct the in camera interview. Second, she argues that the trial court erred by basing its decision solely on the results of the in camera interview. We disagree with Mother on both contentions.

[21] Initially, Mother argues that the trial court lacked statutory authority to conduct the in camera interview of T.A. More specifically, Mother argues that the "the sole basis for an in-camera interview in a parenting time modification situation ... is to determine if a parent is a danger to a child's physical or emotional health, such that parenting time should be restricted." Appellant's Br. at 13. Indiana Code Section 31-17-4-1 permits a trial court to conduct an in camera interview of a child in chambers within parenting time proceedings. The statute reads:

(a) A parent not granted custody of the child is entitled to reasonable parenting time rights unless the court finds, after a hearing, that parenting time by the noncustodial parent might endanger the child's physical health or significantly impair the child's emotional development.
(b) The court may interview the child in chambers to assist the court in determining the child's perception of whether parenting time by the noncustodial parent might endanger the child's physical health or significantly impair the child's emotional development.
(c) The court may permit counsel to be present at the interview. If counsel is present:
(1) a record may be made of the interview; and
(2) the interview may be made part of the record for purposes of appeal.

Ind. Code § 31-17-4-1. Where courts interpret a statute, courts must give words used in the statute common and ordinary meaning. Spaulding v. Int'l Bakers Servs. Inc. , 550 N.E.2d 307, 309 (Ind. 1990). We do not overemphasize a strict literal or selective reading of individual words. Id.

[22] Based on a plain reading of the statute, we are not persuaded. We can find no language in the statute allowing its use solely for the purposes of restriction of parenting time. The statute plainly and simply provides an in camera interview as an option to assist trial courts in determining whether parenting time would physically or emotionally endanger a child. Moreover, Mother's suggested reading of the statute would unnecessarily prohibit trial courts from exercising their discretion in effectuating the best interests of children as facts and circumstances arise within parenting time matters.

[23] The history of the case in the instant matter shows evidence of concern for T.A.'s emotional state because of Mother's and Father's inability to co-parent effectively. Even more so, the testimony heard by the trial court immediately prior to the in camera interview reflected continued concern for T.A.'s emotional state. The trial court acted within its statutory authority to determine parenting time as it is suited to the best interests of the child when it conducted the in camera interview of T.A., and we can find no error.

[24] We now turn to Mother's argument that the trial court erred by relying solely on the in camera interview in order to increase Father's parenting time. While trial courts are afforded latitude in parenting time decisions, a trial court's judgment "may not rest primarily upon the results of a private in camera interview." McCauley v. McCauley , 678 N.E.2d 1290, 1292 (Ind. Ct. App. 1997), trans. denied .

[25] In support of her argument that the trial court erred by relying solely on the in camera interview, Mother relies primarily on McCauley, supra . In McCauley, a panel of our court determined that the trial court abused its discretion by relying primarily upon the results of a private in camera interview in order to deny visitation to a parent, as it could find no evidence in the remainder of the record supporting the trial court's decision. Id. Mother asserts that because the trial court did not appear to be leaning in favor of Father's requests prior to the in camera interview, and then after the interview, decided to find Mother in contempt and increased Father's parenting time, we can speculate that the trial court relied solely on the in camera interview. We decline Mother's invitation to speculate. Instead, we review the evidence contained in the record.

[26] Upon review, we are able to locate sufficient evidence in the record outside of the in camera interview that supports the trial court's findings and conclusions regarding Father's parenting time. Mother testified that she took T.A. to work with her and that her job duties included cleaning and filling teeth, talking to patients, completing paperwork, scheduling appointments, and other front office duties. Father testified that he was willing and able to care for T.A. during the time Mother had her at her place of work. This testimony from Mother and Father alone is sufficient for the trial court to determine that Mother's assertion that she was actively parenting during the time T.A. was at work with her was not credible. Any further request by Mother for this court to determine otherwise is a request for us to reweigh the evidence and judge the credibility of the witnesses, which we will not do.

Conclusion

[27] The trial court did not abuse its discretion by finding Mother in contempt. We can find no error by the trial court when it conducted an in camera interview of T.A. Additionally, because sufficient evidence exists in the record outside of the in camera interview that supports the trial court's expansion of father's parenting time, we conclude that the trial court did not rely solely on the in camera interview to make its determination and therefore did not err.

[28] Affirmed.

Bailey, J., and Bradford, J., concur.

Order [1] Appellee, by counsel, filed Appellee's Motion to Publish Memorandum Decision Pursuant to Indiana Appellate Rule 65.

[2] Having reviewed the matter, the Court finds and orders as follows:

1. The Appellee's Motion to Publish Memorandum Decision Pursuant to Indiana Appellate Rule 65 is granted.
2. This Court's opinion heretofore handed down in this cause on November 9, 2018, marked Memorandum Decision, is now ordered published.
3. The Clerk of this Court is directed to send copies of said opinion together with copies of this order to the West Publishing Company and to all other services to which published opinions are normally sent.

[3] Ordered 1/2/2019.

[4] Bailey, Mathias, Bradford, JJ., concur.

      Judge Spitzer presided over the two-day hearing held on August 29-30, 2016, regarding Father's petition to modify custody. Andrews v. Moorman , 86 N.E.3d 239 (Ind. Ct. App. 2017), trans. denied . On the second day of this hearing, Judge Spitzer disclosed on the record that he had previously represented Butterworth industries, owned by Mother's extended family, approximately ten years prior to these proceedings. Id. While Father's attorney indicated no concern at the time of the disclosure, Father argued on appeal that Judge Spitzer should have recused himself in this matter decided on May 30, 2017. Id. Although a panel of our court found no error by Judge Spitzer, Father's motion for change of judge was granted. Id. Special Judge Haas presided over the proceedings that give rise to the instant appeal.

      Mother also filed a notice of intent to relocate. The trial court heard the matter in conjunction with Father's requests that are currently being considered in this appeal. Father objected to the request to relocate; however, the trial court granted mother's request. Neither party appeals this determination, and Mother's relocation is not currently at issue.

      Mother also asserts the in camera interview was conducted on the record and outside of the presence of counsel. Immediately before the interview, the trial court indicated to the parties that only the court reporter would be present for the interview. No objection to the absence of counsel was presented at that time. Tr p. 147. The trial court noted that a record would be available if there is an appeal and reminded counsel for both parties of their professional obligations not to share whatever they may hear or read. Counsel for both Mother and Father indicated their intent to abide by these professional obligations; however, no objection was made at any point during this discussion. Tr. pp. 147-48. Since no objection to the absence of counsel was presented at the time the interview was conducted, this argument was not properly preserved for appeal. Jackson v. State , 735 N.E.2d 1146, 1152 (Ind. 2000).