text:
    Raymond C. TISDALE, Appellant-Respondent, v. Christine M. (Tisdale) BOLICK, Appellee-Petitioner.
    No. 49A02-1202-DR-138.
    Court of Appeals of Indiana.
    Oct. 2, 2012.
    Publication Ordered Oct. 26, 2012.

      Thomas M. Frohman, Indiana Legal Services, Inc., Bloomington, IN, Andrew A. Ault, Indiana Legal Services, Inc., Indianapolis, IN, Attorneys for Appellant.
   OPINION

MATHIAS, Judge.

Raymond Tisdale (“Father”) appeals an order of the Marion Superior Court in which the court determined that it lacked jurisdiction to consider Father’s petition to modify child support. Concluding that Father has demonstrated prima facie error in the trial court’s order, we reverse and remand.

Facts and Procedural History

On August 25, 2003, the trial court entered an order dissolving the marriage between Father and his then wife Christine (Tisdale) Bolick (“Mother”). On November 4, 2009, Mother filed a petition to transfer jurisdiction due to inconvenient forum. This petition read in relevant part:

1. On August 25, 2003, this Court entered its Findings of Fact, Conclusions of Law and Decree for Dissolution of Marriage in the above-referenced matter.
2. Mother was granted sole legal and physical custody of the parties’ minor children, namely [M.B.T.], currently age 10 and [R.D.T.], currently age 8 (hereafter “the children”).
3. At the time of the dissolution of marriage, Mother was also granted permission by this Court to relocate to South Carolina. The children have resided with Mother in South Carolina since 2003.
4. Pursuant to I.C. 31-21-5-8, this Court is an inconvenient forum and the State of South Carolina, specifically, the Family Court in the First Judicial District in Dorchester County, South Carolina, is a more appropriate forum to determine custody and parenting time issues.
5. Mother requests that this Court decline to exercise any further jurisdiction over the parties and the subject matter.
6. Respondent (hereafter “Father”) still resides in Indiana.... However, with the exception of six (6) weeks of summer parenting time and one (1) week of Christmas parenting time, all of Father’s parenting time occurs in South Carolina. Father currently owns a second home in South Carolina and travels to South Carolina each month to spend one (1) week of parenting time with the children.
7. Pursuant to the Findings of Fact, Conclusions of Law and Decree of Dissolution of Marriage, both parties testified to their strong ties to South Carolina at their final dissolution hearing. Up until March 2000, the parties had their primary residence in South Carolina.
8. Recent events have transpired in South Carolina and an emergency hearing was held on October 29, 2009 in Dorchester County, South Carolina regarding an emergency modification of Father’s parenting time.
9. Upon information and belief, Father is using alcohol in the presence of the minor children. There was substantial evidence presented at the final hearing of Father’s past alcohol abuse and a custody evaluation performed by Dr. Richard Lawlor stated that “if there were any evidence that he (Father) were drinking at all when the children were with him I would see that as a basis for the Court needing to order that visitation be supervised at that point.”
10. Additionally, the parties’ minor son has severe asthma and allergies and while in Father’s care, has been exposed to indoor secondhand smoke and allergies.
11. The court in Dorchester County, South Carolina has stayed any further proceedings in that court pending this Court’s order transferring jurisdiction of this matter to South Carolina due to inconvenient forum in Indiana.
12. Pursuant to I.C. 31-21-5-8(b), Mother states as follows:
a. Domestic violence has not occurred between the parties.
b. The children have resided outside of the state of Indiana since 2003. The children were ages 3 and 2 respectively at the time of the parties’ dissolution of marriage and have now resided in South Carolina for the majority of their lives. South Carolina is the home state of the children and has been for the last six (6) years.
c. There is significant distance between Marion County Courts and the court in Dorchester County, South Carolina.
d. Mother does not have sufficient funds to continue to litigate this matter in the State of Indiana. Father travels to South Carolina at least once per month for parenting time with the children and has already hired counsel in South Carolina to represent him.
e. This court retained jurisdiction over the matters related to the children, despite the children’s relocation to South Carolina.
f. The children, Mother, Step Father and the son’s medical providers will offer valuable evidence to the pending litigation and all parties are located in South Carolina.
g. The Court in South Carolina is prepared to set a hearing as soon as possible to determine whether a modification of parenting time is warranted given the circumstances.
13. Mother requests that this Court find that Indiana is no longer a convenient forum for any further matters related to the children.
14. Mother further requests that this Court find that Dorchester County, South Carolina is the home state of the children and a more appropriate forum to determine the current parenting time issues between the parties.
15. Mother requests an order that allows South Carolina to assume jurisdiction and promptly transfer these matters to Dorchester County, South Carolina. Said Court is ready to assume jurisdiction of these matters as soon as possible.
16. In the event a hearing is necessary in this matter, Mother requests that this Court set such hearing as soon as possible for a fifteen (15) minute setting as parenting time issues are of the essence.
17. In the event a hearing is necessary in this matter, Mother requests leave of the court to appear for such hearing telephonically.
WHEREFORE, Petitioner prays that the Court find that Indiana is an inconvenient forum for any further matters related to custody and parenting time issues; find that Dorchester County, South Carolina is a more appropriate forum; immediately transfer jurisdiction of this matter to Dorchester County, South Carolina so that parenting time proceedings may he promptly commenced in that state; in the event that the Court requires a hearing on this matter, set an expedited hearing at the Court’s earliest convenience for a fifteen (15) minute setting; allow for Mother’s telephonic appearance at such hearing, for all other relief just and proper in the premises.

Appellant’s App. pp. 20-23 (emphases added). Mother’s petition repeatedly referred to parenting time and custody issues, but made no reference to child support issues.

Father filed a response in which he claimed that South Carolina was not a more convenient forum because the Indiana trial court would retain jurisdiction over child support issues even if it granted Mother’s motion to transfer custody and parenting time issues to the South Carolina court. On December 11, 2009, the trial court entered an order which stated in relevant part:

Petitioner moves to transfer this action to Dorchester County, South Carolina for parenting time and custody issues due to inconvenient forum. After hearing, the Court finds that the petition to transfer should be granted.

Id. at 25 (emphasis added). Thus, the trial court granted jurisdiction over parenting time and custody issues to the South Carolina court, with no reference to issues of child support.

On October 21, 2011, Father filed a request that the trial court modify his child support due to an alleged decrease in his income. On November 9, 2011, the trial court issued an order stating: “COURT HAS NO JURISDICTION OVER CASE. RESPONDENT ADVISED TO FILE PLEADINGS IN CORRECT COUNTY.” Id. at 27. Father subsequently filed a motion to correct error on December 9, 2011. In this motion to correct error, Father argued that the trial court had never transferred jurisdiction of child support issues and had only transferred jurisdiction of custody and parenting time issues to the South Carolina court. The trial court denied Father’s motion to correct error on January 19, 2012. Father now appeals.

Discussion and Decision

Father claims that the trial court erred in summarily concluding that it was without jurisdiction to hear his petition to modify Father’s child support obligation. Father contends that he has no objection to the transfer of the issues regarding custody and parenting time to the South Carolina court, but he claims that this does not affect the trial court’s authority to hear his petition to modify child support.

In considering Father’s argument we note that Mother has failed to file an appellee’s brief. When an appellee fails to submit a brief, the appellant may prevail by making a prima fade case of error. Mikel v. Johnston, 907 N.E.2d 547, 551 n. 3 (Ind.Ct.App.2009). This prima facie error rule protects this court and takes from us the burden of controverting arguments advanced for reversal, a duty which remains with the appellee. Id. But even under the prima facie error rule, we are obligated to correctly apply the law to the facts in the record in order to determine whether reversal is required. Id.

Mother’s petition to transfer jurisdiction to South Carolina referenced only Indiana Code section 31-21-5-8, which is part of the Uniform Child Custody Jurisdiction Act (“UCCJA”). Pursuant to this section:

An Indiana court that has jurisdiction under this article to make a child custody determination may decline to exercise its jurisdiction at any time if the Indiana court determines that:
(1) the Indiana court is an inconvenient forum under the circumstances; and
(2)a court of another state is a more appropriate forum.

I.C. § 31-21-5-8(a). Section 8 further provides that, if an Indiana court determines that it is an inconvenient forum and that a court of another state is a more appropriate forum, “the Indiana court: (1) shall stay the proceedings on condition that a child custody proceeding be promptly commenced in another designated state; and (2) may impose any other condition the Indiana court considers just and proper.” I.C. § 31-21-5-8(c). Lastly, Section 8 states that:

An Indiana court may decline to exercise its jurisdiction under this article if a child custody determination is incidental to an action for dissolution of marriage or another proceeding while still retaining jurisdiction over the dissolution of marriage or other proceeding.

I.C. § 31—21—5—8(d) (emphasis added). Thus, Father argues that when the Indiana trial court transferred jurisdiction of the child custody and parenting time issues to the South Carolina court, the Indiana trial court did not lose jurisdiction over the issue of child support.

Father is correct that matters of child support are governed by an entirely different Act—the Uniform Interstate Family Support Act (“UIFSA”). See Ind. Code §§ 31-18-1-1 through 31-18-9-4. Indeed, the UCCJA specifically excludes from its definition of a “child custody determination” “an order relating to child support or other monetary obligation of a person.” Ind. Code § 31-21-2-4(b).

Under UIFSA, which governs child support orders:

An Indiana tribunal that issues a support order consistent with Indiana law has continuing, exclusive jurisdiction over a child support order:
(1) if Indiana remains the residence of the:
(A) obligor;
(B) individual obligee; or
(C) child for whose benefit the support order is issued; or
(2) until each individual party has filed written consent with the Indiana tribunal for a tribunal of another state to modify the order and assume continuing, exclusive jurisdiction.

Ind. Code § 31-18-2-5(a).

Here, the Indiana trial court issued the initial dissolution decree that contained the support order, and Father is the obli-gor. Thus, the Indiana trial court has continuing, exclusive jurisdiction over the child support order so long as Father, Mother, or one of the parties’ children resides in Indiana, or until each party has filed in the Indiana court a written consent to the South Carolina court exercising jurisdiction over this matter. Father concedes that there is no evidence in the record regarding his residency because the trial court never held an evidentiary hearing on his petition to modify child support.

We therefore conclude that Father has demonstrated prima facie error in the trial court’s order summarily denying his petition to modify child support. Accordingly, we reverse the trial court’s order and remand with instructions that the trial court hold a hearing to determine whether it still retains continuing, exclusive jurisdiction over child support issues under UIFSA.

Reversed and remanded.

VAIDIK, J., and BARNES, J., concur.

      . Father initiated an appeal of this order, but later filed a motion to voluntarily dismiss the appeal, which this court granted.

      . Mother did file pro se appearance and a pro se motion to dismiss Father’s appeal on grounds of res judicata. This motion claims that Father is simply attempting to relitigate the issues the trial court considered in decid-tag Mother’s 2009 petition to transfer jurisdiction to South Carolina. As we explain infra, we disagree with Mother’s argument, and we have issued a separate order denying Mother's motion to dismiss.

        .See Ind. Code §§ 31-21-1-1 through 31-21-7-3.

      . Subsection 31—18—2—5 (b) also provides, "[a]n Indiana tribunal that issues a child support order consistent with Indiana law may not exercise its continuing jurisdiction to modify the order if the order has been modified by a tribunal of another state that has exercised continuing, exclusive jurisdiction over the order under a law substantially similar to this article." Again, because there was no hearing held in this matter, there is nothing in the record before us regarding whether the South Carolina court modified the support order in such a manner that would properly deprive the Indiana trial court of its jurisdiction under this subsection.

      . We acknowledge that the Indiana trial court transferred the entire case file to the South Carolina court when it granted Mother's 2009 petition to transfer jurisdiction over parenting time and custody issues to the South Carolina court. This appears to have been improper. When an Indiana trial court declines to exercise its jurisdiction under the UCCJA, it should "stay the proceedings on condition that a child custody proceeding be promptly commenced in another designated state.” I.C. § 31 — 21—5—8(c). The party seeking to transfer the case to the other state should then register the Indiana order for enforcement or modification. See Ind. Code §§ 31-21-6-4, 31-21-5-3; S.C. Code §§ 63-15-358, 63-15-334. Moreover, the fact that the case file has been sent to the South Carolina court is not an insurmountable problem. Certainly, the necessary portions of the case file can be copied and/or returned to the Indiana court.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Indiana ex rel. INDIANA SUPREME COURT DISCIPLINARY COMMISSION, Relator, v. Derek A. FARMER, Respondent.
    No. 94S00-1103-MS-165.
    Supreme Court of Indiana.
    Nov. 30, 2012.

      G. Michael Witte, Executive Director, Angie L. Ordway, Staff Attorney, Indiana Supreme Court Disciplinary Commission, Indianapolis, IN, Attorneys for Relator.
    Mary Nold Larimore, Erin A. Webley, Indianapolis, IN, Attorneys for Respondent.
   On Petition to Enjoin Unauthorized Practice of Law

PER CURIAM.

The Indiana Supreme Court Disciplinary Commission (“Commission”) brings this original action in the name of the State of Indiana pursuant to Indiana Admission and Discipline Rule 24. The Commission alleges that Respondent Derek A. Farmer (“Farmer”) engaged in the unauthorized practice of law in Indiana, and it seeks an order from this Court enjoining him from practicing law here. This Court has original jurisdiction over matters involving the unauthorized practice of law. See Ind. Const, art. 7, § 4.

Procedural Background

On March 22, 2011, the Commission filed a verified petition alleging that Farmer engaged in the unauthorized practice of law. The petition asks that Farmer “be permanently enjoined from engaging in the practice of law and soliciting clients in the State of Indiana[.]” (Verified Petition (“Pet.”) at 6.) Farmer filed a verified return to the petition and later amended his return. Farmer denied many of the allegations in the verified petition and opposed issuance of the injunction. The Court appointed Leslie C. Shively to serve as Commissioner to hear the evidence and report his findings of fact to the Court. After conducting an evidentiary hearing, the Commissioner filed his report with findings of fact. Later, this Court received legal briefs from the parties and heard oral argument.

Facts

John Ivy (“Ivy”) was convicted and sentenced to sixty-five years for murder in Delaware County, Indiana. See Ivy v. State, 715 N.E.2d 408 (Ind.1999). Thereafter, and at all relevant times, Ivy has been imprisoned in Indiana. In April 2000, Ivy, pro se, filed a petition for post-conviction relief. On May 30, 2000, a Deputy State Public Defender entered her appearance along with a “verified notice of present inability to investigate and motion for continuance.” (Appendix (“App.”) at 91-93.) The trial court granted the requested continuance. The chronological case summary shows no further activities in the post-conviction case until the Deputy State Public Defender was granted leave to withdraw her appearance on April 7,2005. (App. at 93.)

Meanwhile, Ivy and his grandparents, Eddie and Laverne Ivy, Ohio residents, hired an Ohio attorney, Farmer, to provide legal work on Ivy’s case as described below. Farmer was admitted to practice law in Ohio in 1999 and, at all relevant times, has maintained an office in Ohio. Farmer had represented Eddie formerly on an unrelated matter. Farmer has never been licensed to practice law in Indiana, although he was admitted to practice in Indiana temporarily in connection with another client’s criminal case in Marion County in 2002-03.

Ivy signed a legal services engagement letter dated June 10, 2002, in which Farmer agreed, in exchange for a non-refundable payment of $1,000, to conduct a preliminary investigation of Ivy’s case, including an interview with Ivy, review of court documents, and legal research. The letter explained that after the preliminary review, Ivy would be “given his ... legal options.” (App. at 99.) It stated that if Farmer felt there were “viable legal avenues and the client wishes to continue,” Ivy would be provided a letter explaining the scope of Farmer’s “full representation” and quoting a fee for such representation. (App. at 99.) In June 2002, Farmer met with Ivy in prison and reviewed certain court records made available by Laverne.

On July 1, 2002, Farmer sent Ivy a letter, with a copy to Ivy’s grandparents. That letter stated Farmer’s fee for full representation was $25,000, plus expenses. The letter explained what Farmer intended to do to assist Ivy as part of full representation, including speaking to witnesses and reviewing reports. The letter indicated that the primary hopes for obtaining relief would be obtaining new evidence and showing that the prosecutor knew some of the witnesses at trial were lying. In the letter, Farmer added, “I believe that we may be able to amend the post-conviction motion that you have pending.” (App. at 102.)

Thereafter, the Ivys all agreed that Farmer would be paid $25,000, plus expenses, in exchange for him working on Ivy’s case. At some time prior to October 31, 2003, the Ivys made an initial payment of $5,000. On October 31, 2003, or shortly thereafter, Farmer, Ivy, and Ivy’s grandparents all signed an Engagement Agreement. It stated that the grandparents were agreeing to pay Farmer a flat fee of $25,000 — of which $5,000 had already been paid — to represent Ivy “with respect to post-conviction work[, m]ainly to ascertain evidence and information that may lead to [Ivy’s] current conviction being vacated.” (App. at 119.) The agreement stated that the grandparents would be billed periodically for the remainder of the flat fee.

The grandparents made several payments toward the flat fee, ultimately paying Farmer a total of approximately $20,000.

After the Engagement Agreement, Farmer took the following actions. He met with Ivy again in prison in December 2003. On December 31, 2003, he drove to Mun-cie, Indiana, and copied some court records. In January and March 2004, he drove to Muncie to review trial exhibits, and he met with Ivy’s trial attorney in March 2004. In July 2004, he met with Ivy again in prison. Sometime before March 2005, Farmer went to an Indiana prison to talk with Ivy’s co-defendant, but that meeting was cut short when Farmer learned the co-defendant was represented by counsel. In March 2005, Farmer traveled to Muncie and met and talked with the co-defendant’s attorney, and the two visited the murder scene. Later, Farmer made another trip to northern Indiana to interview the co-defendant.

As the result of grievances filed in Ohio by former clients, a disciplinary complaint was filed against Farmer in Ohio by December 9, 2004. That complaint led to a decision issued on November 1, 2006, suspending Farmer’s license to practice law in Ohio from November 1, 2006, until April 1, 2008. Thereafter, Farmer was on probation in Ohio from April 1, 2008, to June 5, 2009.

Soon after being suspended, Farmer sent letters to Ivy and Eddie (Laverne had passed away by then) advising them of the suspension and suggesting that they find another attorney. Eddie advised Farmer that he still wanted Farmer to obtain an affidavit from a witness in Muncie as they had earlier planned. After the Ivys located that witness, Farmer and Eddie drove toward Muncie for the purpose of talking to that witness and collecting an affidavit from her. But Farmer and Eddie learned in transit through a telephone call that the witness was not available, and so they cut short their trip. (App. at 22.)

After Farmer’s suspension ended in April 1, 2008, Farmer and Eddie discussed whether Farmer should resume work on Ivy’s case. In June 2008, Farmer and Eddie met with Ivy in prison to discuss the matter. At that meeting, Farmer and Ivy agreed that Farmer would continue work on the case on a pro bono basis. (App. at 23, 235.) However, sometime in early 2009, Ivy filed a grievance against Farmer with the Ohio Supreme Court Disciplinary Counsel, prompting Farmer to terminate their agreement.

At no time during his post-conviction work for Ivy did Farmer apply for temporary (“pro hac vice ”) admission in connection with Ivy’s pending post-conviction relief petition.

Other relevant facts are discussed below.

Discussion

“Original actions ... to restrain or enjoin the unauthorized practice of law in this state may be brought in this court by the attorney general, the Indiana Supreme Court Disciplinary Commission, and the Indiana State Bar Association or any duly authorized committee thereof, without leave of court .... ” Admis. Disc. R. 24. “The purpose of a proceeding under Admission and Discipline Rule 24 is not to find fault or assess liability but to protect the public from those not properly licensed or otherwise qualified to act as attorneys.” State ex rel. Indiana State Bar Ass’n v. Northouse, 848 N.E.2d 668, 674 (Ind.2006).

An action to enjoin the unauthorized practice of law “shall charge specifically the acts constituting the unauthorized practice.” Admis. Disc. R. 24. Here, after setting forth factual background information, the Commission’s verified petition alleged specifically:

ACTS CONSTITUTING THE UNAUTHORIZED PRACTICE OF LAW

41. Farmer engaged in the unauthorized practice of law when, not being admitted to practice law in the State of Indiana, he provided legal services to an Indiana inmate regarding an Indiana legal matter for a period of approximately three (3) years.
42. Farmer further engaged in the unauthorized practice of law when, while suspended from the practice of law in Ohio, he traveled to Indiana for the purpose of interviewing and collecting an affidavit from a witness.

(Pet. at 5 (bold emphasis in original).)

The Court examines the Commission’s claims in each of these two paragraphs, considering the evidence in light of the Commission’s burden of proof. See State ex rel. Ind. State Bar Ass’n v. Diaz, 838 N.E.2d 433, 438 (Ind.2005) (adopting commissioner’s findings of fact where supported by clear and convincing evidence). Here, the parties agree that the Commission bears the burden of proof by clear and convincing evidence. (Respondent’s Br. at 1, 8; Ind. Sup. Ct. Oral Argument Tr. at 50:01-50:07.) Accordingly, the Court applies that burden of proof here.

The “clear and convincing” standard is an intermediate standard of proof that lies between the “preponderance of the evidence” standard used in most civil proceedings and the “beyond a reasonable doubt” standard required to find guilt in criminal prosecutions. See J.C.C. v. State, 897 N.E.2d 931, 934 (Ind.2008). Clear and convincing proof is a standard frequently imposed in civil cases where the wisdom of experience has demonstrated the need for greater certainty. Id. at 935; Carnahan v. Moriah Property Owners Ass’n, Inc., 716 N.E.2d 437, 443 (Ind.1999).

A. Paragraph II: The Three-Year Period

The Commission alleged in Paragraph 41 of its verified petition that Farmer engaged in the unauthorized practice of law when he provided post-conviction legal services to Ivy for a period of approximately three years without being admitted to practice law in Indiana. That paragraph does not specify exactly to which three-year period the Commission is referring. However, it may be gleaned from the other parts of the verified petition and from the Commission’s brief that the Commission is referring to the roughly three-year period between the Engagement Agreement and the beginning of the Ohio suspension.

The Commission claimed that Farmer’s conduct before his suspension amounted to unauthorized practice of law because he did not apply to be admitted on a temporary basis under Indiana Admission and Discipline Rule 3(2) and he was not otherwise authorized to practice law under the standard set out in Indiana Rule of Professional Conduct 5.5(c)(2). The latter rule provides:

(c) A lawyer admitted in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services on a temporary basis in this jurisdiction that:
(2) are in or reasonably related to a pending or potential proceeding before a tribunal in this or another jurisdiction, if the lawyer, or a person the lawyer is assisting, is authorized by law or order to appear in such proceeding or reasonably expects to be so authorized [.]

Prof. Cond. R. 5.5(c)(2) (West 2012) (emphasis added).

The accompanying commentary restates the rule and provides a few illustrative examples of permissible conduct:

Paragraph (c)(2) ... provides that a lawyer rendering services in this jurisdiction on a temporary basis does not violate this Rule when the lawyer engages in conduct in anticipation of a proceeding or hearing in a jurisdiction in which the lawyer is authorized to practice law or in which the lawyer reasonably expects to be admitted pro hac vice. Examples of such conduct include meetings with the client, interviews of potential witnesses, and the review of documents.

Prof. Cond. R. 5.5(c)(2), cmt. 10.

The Commission contends that Professional Conduct Rule 5.5(c)(2) does not authorize Farmer’s conduct because providing legal services for three years is not “temporary.” “Services may be ‘temporary’ even though the lawyer provides services in this jurisdiction on a recurring basis, or for an extended period of time, as when the lawyer is representing a client in a single lengthy negotiation or litigation.” Prof. Cond. R. 5.5(c)(2), cmt. 6; see American Bar Association, Annotated Model Rules of Professional Conduct, Rule 5.5, at 465 (6th ed.2007) (commenting that Rule 5.5 does not specify the number of visits a lawyer may make to another jurisdiction or any other bright-line test to determine when a lawyer’s presence is “ ‘temporary1 rather than permanent” and noting that a report to the House of Delegates stated that application of the rule’s standards “leaves room for individual opinion and judicial interpretation.”).

Here, the charged conduct of Farmer involves occasional visits to Indiana for a single client in a single legal matter, not multiple matters or clients or any systematic or continuous presence in Indiana. Under these circumstances, the Court concludes that the Commission has failed to prove by clear and convincing evidence that Farmer’s provision of legal service to Ivy was more than “temporary.”

The Commission’s other argument with regard to this phase is that Farmer could not have reasonably expected to be authorized to appear in Ivy’s post-conviction case because, at least beginning in December 2004, “Farmer had no reasonable belief that he could gain temporary admission to practice in the State of Indiana due to a pending disciplinary proceeding in Ohio.” (Pet. at 5; see Relator’s Br. at 8.)

This argument, too, fails. A temporary admission of an out-of-state lawyer pursuant to Admission and Discipline Rule 3(2) is within the discretion of the trial court. Matter ofFieger, 887 N.E.2d 87, 90 (Ind.2008). Nothing in this temporary admission rule per se disqualified Farmer from seeking admission in Ivy’s post-conviction case simply because a disciplinary proceeding was pending against Farmer in Ohio. See Admis. Disc. Rule 3(2)(a)(4)(v) (listing requirements for seeking temporary admission to appear in an Indiana case or proceeding, including stating “[tjhat no disciplinary proceeding is presently pending against the attorney in any jurisdiction; or, if any proceeding is pending, the petition shall specify the jurisdiction, the charges and the address of the disciplinary authority investigating the charges.” (emphasis added)).

Here, Farmer testified that he understood Admission and Discipline Rule 3(2) to mean that a pending disciplinary complaint in Ohio would not have precluded him from seeking, or an Indiana court from granting, temporary admission. (Tr. at 310.) Other evidence showed that Farmer had been admitted to practice law in Ohio in 1999. He had been admitted on a temporary basis in another Indiana case fairly recently, in 2002-03. In the present proceeding, a federal judge and an attorney in Ohio who testified regarding Farmer’s good character and competence as an attorney stated that they would have provided an affidavit supporting Farmer’s request for temporary admission in Indiana if he had made one before or after his Ohio suspension.

Under these circumstances and in light of the discretion exercised by trial courts in ruling on motions for temporary admission under Admission and Discipline Rule 3(2), the Court concludes that the Commission has failed to prove by clear and convincing evidence that, due to the pending disciplinary proceeding in Ohio, Farmer could not have reasonably expected to be authorized to appear in Ivy’s post-conviction case at some time in the future.

B. Paragraph ⅛2: The Ohio-Suspension Period

The Commission has failed to prove that Farmer engaged in the unauthorized practice of law during his suspension by traveling to Indiana for the purpose of interviewing and collecting an affidavit from a witness as alleged in Paragraph 42 of the Commission’s petition.

As the Commissioner noted in his findings of fact, there was no evidence that Farmer and Eddie entered into Indiana on that occasion. More importantly perhaps, there was no evidence that Farmer actually interviewed the witness or collected her affidavit. It is the province of this Court to determine what acts constitute the practice of law. Matter of Contempt of Mittower, 693 N.E.2d 555, 558 (Ind.1998); see Matter of Patterson, 907 N.E.2d 970, 971 (Ind.2009) (noting that while this Court has not attempted to provide a comprehensive definition of what constitutes the practice of law, it is clear that the core element of practicing law is giving legal advice to a client, and that the practice of law has been described as making it one’s business to act for others in legal formalities, negotiations, or proceedings). The Court concludes that Farmer’s conduct of traveling toward Indiana, even for the purposes alleged in Paragraph 42 of the verified petition, does not constitute the practice of law in Indiana.

Conclusion

The Commission has failed to meet its burden of demonstrating that an injunction should issue against Farmer. Accordingly, the Court denies the Commission’s verified petition. The costs and expenses incurred by the hearing in this matter shall be borne by the Commission. See Admis. Disc. R. 24.

DICKSON, C.J., and RUCKER, MASSA, and RUSH, JJ., concur.

DAVID, J., concurs in result without separate opinion.

      . Because Ivy had a post-conviction petition pending in Delaware County, Indiana, when Farmer provided legal services to Ivy, Farmer's counsel’s repeated references to "a potential proceeding” or "potential PCR motion" in Ivy’s case are, at a minimum, confusing. (See, e.g., Respondent’s Br. at 8, 16, 18.)

      . The Ohio Supreme Court Disciplinary Counsel ("Ohio Counsel”) eventually dismissed Ivy’s grievance. In the dismissal letter, Ohio Counsel rejected Ivy’s claim that Farmer had done "nothing” for Ivy and stated that Farmer had done a "considerable amount” of work on Ivy's behalf. (App. at 202.) When the Indiana Supreme Court Disciplinary Commission later inquired, Ohio Counsel responded, "With respect to the licensing issue, we believe that Attorney Farmer’s actions fall within Rule 5.5 since he was engaging in an investigation and non-litigation activity.” (App. at 206.) Indiana’s version of Professional Conduct Rule 5.5 is discussed below.

      . See Ind. Admission and Discipline Rule 3(2).

      . See Relator’s Br. at 4 (“For three years, from October 2003 to October 2006, [Farmer] provided legal services to Ivy relating to his pending post-conviction relief matter[.]”); see also Pet. at 2 (“In or about October 2003, ... the Ivys ... retained Farmer to review the record in Ivy’s case and attempt to find evidence to support legal claims to help Ivy.”). At oral argument, the Commission stated that Farmer engaged in unauthorized practice of law in Indiana before, during, and after his Ohio suspension, but it does not appear that unauthorized practice after his Ohio suspension was charged specifically in the verified petition. See Pet. at 5. In any event, the Court’s analysis for the period after the suspension would not differ materially from the analysis for the three-year period before his Ohio suspension.

      . This language was added to Professional Conduct Rule 5.5 by an order dated September 30, 2004, became effective January 1, 2005, and amended the language of the earlier version of the Rule 5.5. Because the Commission and Farmer both invite the Court to analyze Farmer’s conduct under the standard set out in the language of this current version of the rule, the Court does so here.

        . After this matter was fully briefed and oral argument was scheduled, the Commission moved to strike one statement of fact from Farmer’s response brief and claimed the record does not support that statement of fact. Farmer’s counsel responded by acknowledging she had misstated the evidence on that one particular point, apologized for the error, and argued that striking the statement in question was unnecessary. The Commission easily could have raised this issue in oral argument rather than filing a motion to strike, if it believed the issue important. In any event, given the parties’ exchange described above, the Court denies the motion to strike as moot.


author: BAILEY, Judge.

text:
    Tami L. DUVALL, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 03A04-1108-CR-447.
    Court of Appeals of Indiana.
    Sept. 6, 2012.
    Ordered Published Oct. 11, 2012.

      Russell A. Johnson, Heath Y. Johnson, Suzy St. John, Johnson, Gray & Macabee, Franklin, IN, Attorneys for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, George P. Sherman, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BAILEY, Judge.

Case Summary

Tami L. Duvall (“Duvall”) appeals her conviction for Murder, a felony, five of her six convictions for Insurance Fraud, Class C felonies, and two of her three convictions for Obstruction of Justice, Class D felonies. We affirm the conviction for Murder, but reverse and remand with instructions to vacate five of the convictions for Insurance Fraud and two of the convictions for Obstruction of Justice.

Issues

Duvall presents three issues for review:
I. Whether the trial court abused its discretion in admitting, pursuant to the intent exception of Indiana Evidence Rule 404(b), testimony from Duvall’s former boyfriend that he believed Duvall had poisoned him;
II. Whether the admission of evidence suggesting that Duvall stole a bottle of morphine from her workplace is fundamental error; and
III. Whether Duvall committed only a single offense of Insurance Fraud and a single offense of Obstruction of Justice.

Facts and Procedural History

Around 8:00 a.m. on August 24, 2007, Duvall placed a 9-1-1 call and told operator Angela Lee that she had arrived home from work and found her estranged husband, Alan Duvall (“Alan”), dead in a chair in the back yard. According to Duvall, Alan had come over the prior evening to work on a malfunctioning air conditioning unit, became overheated, and went outside to cool down. He had then slept outside. Duvall advised the operator that Alan was a heavy drinker.

It was initially believed that Alan, who had a blood-alcohol content of 0.436%, died of alcohol poisoning. However, several of Duvall’s and Alan’s family members contacted the Columbus Police Department to convey their suspicions of foul play, prompting Detective Marc Rruchten to request an autopsy of Alan’s body. Toxicology reports from the autopsy revealed that Alan’s blood had a morphine concentration of 6,590 nanograms per milliliter (approximately 100 times a therapeutic dose) and 8,229 nanograms per milliliter of cyeloben-zaprine, a muscle relaxer (approximately eight times a therapeutic dose). In light of this evidence, Detective Kruchten began to conduct a homicide investigation.

The investigation revealed that Alan and Duvall, who had been separated for several months, had significant financial problems. Creditors were continually calling the marital residence to discuss delinquencies of various consumer accounts and past-due vehicle payments. The marital residence was a subject of foreclosure proceedings, and college tuition for Duvall’s youngest daughter had become due. Alan had only recently begun to work with a glass installation company after several job changes, and Duvall’s earnings as a certified nurse’s aide were inadequate for the mounting financial obligations.

A short time before Alan’s death, Duvall had encouraged Alan to procure a $100,000 life insurance policy and name her as the beneficiary. According to the couple’s friends and acquaintances, Alan had been willing to do so because he believed it was a mortgage insurance policy and he expected to move back in with Duvall as soon as her daughter moved to college. The policy had been obtained through insurance agent Gary Ruddell (“Ruddell”), with whom Duvall was having an extra-marital affair. Although, according to Ruddell, he advised Duvall not to attempt to collect on the policy because Alan died during the policy “grace period” and it would look suspicious, (Tr. 2134) Duvall promptly made a claim for payment.

Motorists Life Insurance did not immediately pay the claim, but instead assigned Dennis Thomas (“Thomas”) to investigate the circumstances surrounding Man’s death. Thomas interviewed Duvall on multiple occasions, as did Detective Kru-chten. Duvall maintained that she had, upon arriving home from early morning home health duties, observed Alan slumped in his backyard chair, and immediately called 9-1-1 and tried, without success, to pull Alan from his chair to perform CPR.

Early in the investigation, Duvall suggested that Alan had been a drug user and had “hid the other part of his life” from her. (Tr. 1806.) However, she claimed to lack specific knowledge of what Alan had ingested or how he did so. Ultimately, in an interview with Detective Kruchten and Bartholomew County Prosecutor William Nash, Duvall stated that she had observed Alan take muscle relaxers of the brand name Flexeril, which he had allegedly obtained from his cousin, Zillah Thompson (“Thompson”). She also described seeing Alan, on the last evening of his life, in possession of an eye dropper type bottle with a lavender-colored liquid inside (a description consistent with Roxanol, a liquid form of morphine used for hospice patients). She admitted to disposing of empty medication and alcohol bottles after Alan’s death.

Meanwhile, the police investigation uncovered several witnesses who contradicted Duvall’s claims of a prompt 9-1-1 call and Alan’s drug use. Also, one of Duvall’s former employers, Miller’s Merry Manor, had documented the mysterious disappearance of a bottle of Roxanol. Thompson admitted that she had left medications, including Flexeril, out in plain view at her house, and that she had recently had a block party attended by the Duvalls. However, those who knew Alan, including Thompson, insisted that Alan was opposed to ingesting drugs.

On August 6, 2010, the State charged Duvall with Murder, six counts of Insurance Fraud, and three counts of Obstruction of Justice. On April 5, 2011, Duvall’s jury trial commenced. On April 22, 2011, the jury found Duvall guilty as charged. On May 25, 2011, she received an aggregate sentence of sixty and one-half years (fifty-five for Murder, six concurrent sentences of four years for Insurance Fraud, and three concurrent sentences of one and one-half years for Obstruction of Justice). Duvall now appeals.

Discussion and Decision

I. Admission of Evidence— Alleged Prior Poisoning

Standard of Review

A trial court has broad discretion in ruling on the admissibility of evidence. Camm, v. State, 908 N.E.2d 215, 225 (Ind.2009). We will reverse the trial court’s decision only when it is clearly against the facts and circumstances before the court; moreover, even if the trial court abused its discretion in admitting evidence, the judgment will be undisturbed if the decision to admit evidence is harmless error. Granger v. State, 946 N.E.2d 1209,1213 (Ind.Ct.App.2011). “Harmless error occurs ‘when the conviction is supported by such substantial independent evidence of guilt as to satisfy the reviewing court that there is no substantial likelihood that the questioned evidence contributed to the conviction.’ ” Id. (quoting Lafayette v. State, 917 N.E.2d 660, 666 (Ind.2009)). Accordingly, we reverse only when the record as a whole discloses that the evidence admitted in error likely had a prejudicial impact upon the mind of the average juror, thereby contributing to the verdict. Id.

Analysis

During the investigation following Alan’s death, police learned that Stephen Brown (“Brown”), Duvall’s former boyfriend, had made a June 27, 2005 statement to Farm Bureau Insurance special investigator John Moon (“Moon”) in the course of an investigation into alleged theft of Duvall’s property. Brown denied that he had stolen Duvall’s property and, during the interview, advised Moon of his suspicion that Duvall had tried to poison him with tainted pudding immediately before requesting his signature and identifying information on a life insurance policy.

Prior to trial, Duvall filed a motion in limine seeking to exclude Moon’s testimony with regard to the alleged poisoning attempt. The State conceded that such testimony would be inadmissible unless the defense opened the door to its admissibility-

In his opening statement, Duvall’s counsel advanced the defense theory that Alan had killed himself. The factual scenario described by counsel essentially mirrored those facts described by Duvall in her interview with Detective Kruchten and Prosecutor Nash; that is, on the last night of his life, Alan was taking pills and had “an eye dropper full of morphine.” (Tr. 300.) According to counsel, Duvall came home, found Alan dead, and “freaked out,” thus explaining the delay in calling 9-1-1. (Tr. 300.) The State argued that the defense had opened the door to Brown’s testimony in order to contradict a particular factual scenario portrayed by the defense and, after a bench conference, the trial court agreed.

Brown testified that, around Thanksgiving of 2004, Duvall had arrived at his home with food, including a pudding that she insisted he must eat because her daughter had made it especially for Brown. When Brown took a few bites of the pudding, it tasted “like aspirin dissolving” and he felt “very out of it” for several hours. (Tr. 2318.) Duvall had also brought a life insurance policy application, and claimed that she needed information from Brown so that he could be the listed beneficiary. She asked Brown to sign and provide his Social Security number. Brown did not do so, and Duvall left, taking with her the bowl and plate that she had brought.

Duvall claims that the trial court admitted this evidence in violation of Evidence Rule 404(b), which provides in relevant part:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, intent, preparation, plan, knowledge, identity, or absence of mistake or accident!.]

Evidence of extrinsic offenses poses the danger that the jury will convict the defendant because he or she is a person of bad character generally, or has a tendency to commit crimes. Bassett v. State, 795 N.E.2d 1050, 1053 (Ind.2003). The rationale for the prohibition against bad act and character evidence is that the jury is precluded from making the forbidden inference that the defendant had a criminal propensity and therefore engaged in the charged conduct. Monegan v. State, 721 N.E.2d 243, 248 (Ind.1999). When a defendant objects to the admission of evidence on the grounds that it violates Evid. R. 404(b), and specific acts evidence is offered for “other purposes,” the trial court is to “determine that the evidence of other crimes, wrongs, or acts is relevant to a matter at issue other than the defendant’s propensity to commit the charged act ... determine that the proponent has sufficient proof that the person who allegedly committed the act did, in fact, commit the act ... and third, balance the probative value of the evidence against its prejudicial effect pursuant to Rule 403.” Camm, 908 N.E.2d at 223.

In admitting Brown’s testimony, the trial court relied upon four cases where prior conduct evidence had been admitted on the issue of intent after the defendant had presented a particular factual claim to refute the charge. In Wickizer v. State, 626 N.E.2d 795 (Ind.1993), the defendant charged with molesting a fourteen-year-old male had admitted touching the victim’s penis but had insisted that his intention was not sexual gratification, but providing assistance. The State had presented the testimony of two other witnesses regarding their youthful sexual experiences with the defendant. Id. at 796. Our Supreme Court, in reviewing the appellant’s claim that the evidence was admitted in violation of Evidence Rule 404(b), explained:

The intent exception in Evid. R. 404(b) will be available when a defendant goes beyond merely denying the charged culpability and affirmatively presents a claim of particular contrary intent. When a defendant alleges in trial a particular contrary intent, whether in opening statement, by cross-examination of the State’s witnesses, or by presentation of his own case-in-chief, the State may respond by offering evidence of prior crimes, wrongs, or acts to the extent genuinely relevant to prove the defendant’s intent at the time of the charged offense. The trial court must then determine whether to admit or exclude such evidence depending upon whether ‘its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.’ Evid. R. 403.

Id. at 799. The Court found “the admission of the prior conduct evidence to have been error,” although reversal was not compelled because there existed substantial independent evidence of guilt. Id. at 800.

In Koo v. State, 640 N.E.2d 95, 100 (Ind.Ct.App.1994), trans. denied, a physician charged with raping a patient during a medical appointment “introduced substantial evidence to suggest that the victim hallucinated the sexual encounter.” The State then presented two witnesses who each testified that Koo had raped her during a medical appointment. On appeal, a panel of this Court reviewed the defense opening argument, cross-examination, and closing argument and concluded: “Clearly, the defense had presented a specific factual claim of hallucination that the prosecution was entitled to rebut with evidence of prior misconduct.” Id. at 102.

In Burgett v. State, 758 N.E.2d 571 (Ind.Ct.App.2001), trans. denied, the State had presented evidence of an attempted murder defendant’s drug and gang activity. In considering whether the admission of the evidence was an abuse of discretion, a panel of this Court acknowledged that “the exceptions in Evid. R. 404(b) are only available when a defendant goes beyond merely denying the charged crimes and affirmatively presents a specific claim contrary to the charge,” and further acknowledged that the defendant did not present any evidence at trial. Id. at 580. However, the Court observed that Burgett’s counsel had presented a specific claim contrary to the charge by insinuating, during cross-examination, that the victim lied to avenge his friend’s death when he testified that Burgett was the person who shot him. Id. Consequently, no abuse of discretion was found. Id.

Finally, the trial court relied upon Bryant v. State, 802 N.E.2d 486 (Ind.Ct.App.2004), trans. denied. Bryant was convicted of murdering his step-mother and, on appeal, challenged the trial court’s admission of violent rap lyrics Bryant had either composed or plagiarized. Although it found that Bryant had failed to show that the exhibits constituted evidence of any prior crime or misconduct, the appellate court observed that “prior misconduct evidence may be admitted to rebut a specific factual claim raised by the defendant” and considered the exhibits, containing reference to the police finding a body in the trunk of a car, relevant “to rebut Bryant’s claim that [his father] murdered Carol.” Id. at 499.

Subsequent to the foregoing line of cases, our Indiana Supreme Court reaffirmed the Wickizer “view that an expansive reading of the intent exception would be inconsistent to the principal thrust of [Rule 404(b) ] itself.” Lafayette v. State, 917 N.E.2d 660, 663 (Ind.2009). The Court clarified that the “intent exception [is to] be narrowly construed.” Id. at 664.

In opening statements, Duvall’s counsel introduced a theory that Alan caused his own death and the State seized the opportunity to offer evidence of an alleged prior poisoning, reasoning that the defense had made a “very specific contrary claim” of how Alan’s death occurred. (Tr. 322.) However, consistent with our Indiana Supreme Court’s guidance, we cannot conclude- that the intent exception of Rule 404(b) is to be read so broadly. Wickizer, evincing a narrow construction of the intent exception, specified that it is when a defendant asserts a particular contrary intent that the State may respond with prior acts (to the extent genuinely relevant) to prove intent at the time of the charged offense. 626 N.E.2d at 799. Counsel’s references, in opening statements, suggesting that Alan died by his own hand did not admit that Duvall engaged in the conduct at issue and then assert a particular noncriminal intent. For example, the defense did not concede that Duvall gave Alan drugs but only for therapeutic reasons. Nor did the defense “introduce substantial evidence” of a contrary factual scenario, as in Koo. Duvall did not, in opening statements, open the door to a broad application of the intent exception.

Nonetheless, “[t]he improper admission is harmless error if the conviction is supported by substantial independent evidence of guilt satisfying the reviewing court there is no substantial likelihood the challenged evidence contributed to the conviction.” Turner v. State, 953 N.E.2d 1039, 1059 (Ind.2011). Here, the State presented substantial evidence of Duvall’s guilt.

Duvall, who was under great financial stress, had complained frequently to her friends, co-workers, and daughter that Alan was unreliable and did not contribute adequately to family finances. Days before Alan’s death, Duvall prevailed upon him to obtain a life insurance policy in the amount of $100,000. She was the beneficiary. Alan had told his friends and coworkers that he and Duvall were reconciling; meanwhile, Duvall had told her friend and daughter that there would be no reconciliation. According to the testimony of Rhonda Brown (“Rhonda”), Duvall had told Rhonda that she wanted to be with Ruddell. Also, Duvall’s daughter was adamantly opposed to Alan’s moving back with Duvall.

Rhonda further testified that Duvall had shown her small round yellow pills, claiming that she had seen a cousin give Alan the pills, and wondering aloud if “he took the whole bottle, would you die.” (Tr. 1315.) Duvall had also warned Rhonda not to tell Alan that the policy he was procuring was for life insurance as opposed to mortgage insurance.

Thompson testified that she was Alan’s cousin and had hosted the Duvalls at a block party shortly before Alan’s death. Thompson habitually left her medications, including a very large bottle of Flexeril, on a table inside her front door. After the party, the bottle of Flexeril appeared less full. She denied offering Alan Flexeril from that bottle and testified that she had never seen Alan take a prescription or illicit drug.

Charles Rose (“Rose”) testified that he had been working at Miller’s Merry Manor as a charge nurse on March 2, 2007, when he had absent-mindedly left a nearly-full bottle of Roxanol on a hospice patient’s bedside table. When he went to retrieve it after lunch, Duvall was “the only staff member present” and the bottle was missing. (Tr. 1426.) When questioned, Duvall had responded that she had not seen the bottle but had seen the patient’s daughter in the room. According to Rose, he “kind of knew better” because the daughter was a teacher who never visited during the daytime. (Tr. 1434.)

Additionally, testimony from various investigators, friends, acquaintances, and family members established that Duvall had given many conflicting versions of the circumstances surrounding Alan’s death. During the initial investigation, Duvall claimed to have placed the 8:00 a.m. 9-1-1 call as soon as she returned home and opened the door to see Alan slumped over. However, Duvall had chatted with convenience store clerk Kim Foster as Foster opened the store sometime before 7:00 a.m. and, when Foster expressed concern for Duvall, Duvall told Foster that she had discovered her husband dead in a lounge chair. Ruddell testified that, during his 7:30 a.m. call -with Duvall, she told him she was tying up her dogs and Alan was “unconscious.” (Tr. 2122.) Duvall’s neighbors testified that, around 7:00, Duvall had come to their door but left without waiting for a response to her knock. Jennifer Melton then looked out the window and saw that Duvall was in the back yard trying to tie up her dogs. When Duvall was confronted with phone records suggesting a significant delay after she arrived home and before the 9-1-1 call, Du-vall admitted to making some calls but claimed to have been in shock.

After Alan’s death, Duvall opposed an autopsy. She arranged to have his body cremated, although Alan had a burial plot. According to Duvall’s daughter, Duvall had been upset about the delay in the cremation. Duvall told Detective Kruchten that she had served Alan some Long Island iced teas on the evening before his death. She told Alan’s former girlfriend, Mary Beth Kahle, that Alan had not been drinking at all, then conceded that he had one beer and one shot. She told her son that she and Alan had been drinking tequila the night before his death. During the insurance investigation, Duvall insisted that Alan had initiated the life insurance purchase.

Eventually, Duvall provided investigators with scenarios under which Alan had both Roxanol and Flexeril in his possession. However, persons familiar with Alan’s habits uniformly denied that he was willing to ingest either a prescription or non-prescription drug. Moreover, police officers testified that neither Roxanol nor Flexeril was a drug typically abused or available for street purchase. Evidence showed that Duvall had been in the proximity of both drugs shortly before Alan’s death.

In light of the substantial independent evidence of Duvall’s guilt, we conclude that there is not a substantial likelihood that the challenged evidence contributed to the verdict.

II. Admission of Evidence— Missing Roxanol

Duvall also claims that the trial court admitted Rose’s testimony as to the missing Roxanol in contravention of Evidence Rule 404(b) and “the conditional relevance standard of Evidence Rule 104(b).” Appellant’s Brief at 26. According to Du-vall, the evidence that she “stole liquid morphine from Miller’s Merry Manor is tenuous at best.” Appellant’s Brief at 26. She emphasizes the testimony of director of nursing Robyn Sams, who stated that she “decided to mark the bottle as spilled” and admitted that she could not prove where it went. (Tr. 1509.)

At the time of Rose’s testimony, Duvall lodged no contemporaneous objection. The defendant’s failure to lodge a contemporaneous objection at the time evidence is introduced at trial results in waiver of the error on appeal. Brown v. State, 929 N.E.2d 204, 207 (Ind.2010), reh’g denied. “The purpose of this rule is to allow the trial judge to consider the issue in light of any fresh developments and also to correct any errors.” Id. A claim that has been thus waived can be reviewed on appeal if the reviewing court determines that a fundamental error occurred. Id. The fundamental error exception is “ ‘extremely narrow, and applies only when the error constitutes a blatant violation of basic principles, the harm or potential for harm is substantial, and the resulting error denies the defendant fundamental due process.’ ” Id. (quoting Mathews v. State, 849 N.E.2d 578, 587 (Ind.2006)). The exception is available only in “ ‘egregious circumstances.’ ” Id. (quoting Brown v. State, 799 N.E.2d 1064,1068 (Ind.2003)).

Pathologist Dr. Greg Brown testified that Alan died of an overdose of morphine. Accordingly, Rose’s testimony was admitted for a purpose other than to show that Duvall had a propensity to engage in crime; specifically, it was admissible to show that Duvall had access to the murder weapon. See Pickens v. State, 764 N.E.2d 295, 299 (Ind.Ct.App.2002) (evidence that police saw an assault rifle in the defendant’s parents’ home two years before murder was admissible as evidence that defendant had access to weapon of the type used in the murder), trans. denied.

“But before a defendant’s alleged prior misconduct evidence can be admitted for a permissible purpose under Rule 404(b), there must be sufficient proof from which a jury could find that the defendant committed the prior acts in question.” Perry v. State, 956 N.E.2d 41, 59 (Ind.Ct.App.2011) (citing Camm, 908 N.E.2d at 223-24). In other words, “ ‘similar act evidence is relevant only if the jury can reasonably conclude that the act occurred and that the defendant was the actor.’ ” Id. (quoting Huddleston v. United States, 485 U.S. 681, 689, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988)).

Relevant evidence is that evidence “having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Evid. R. 401. Only relevant evidence is admissible at trial. Evid. R. 402. Testimony that Roxa-nol went missing at Miller’s Merry Manor is relevant to the issue of whether Duvall committed murder by morphine only if Duvall had access to the particular missing drug and then took it. “When conflicting evidence persists about a person’s involvement in Rule 404(b) specific acts, the question is one of conditional relevance, which is governed by Rule 104(b).” Camm, 908 N.E.2d at 223. According to Rule 104(b):

When the relevancy of evidence depends upon the fulfillment of a condition of fact, the Court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.

“Whether Rule 104(b) should result in the exclusion of evidence depends upon whether ‘the fact upon which the evidence depends is too speculative’ at the time a party seeks introduction of the evidence.” Granger, 946 N.E.2d at 1216 (citing Cox v. State, 696 N.E.2d 853, 861 (Ind.1998)). Evidence of uncharged conduct is admissible under Rule 104(b) if there is likely to be sufficient proof for a reasonable jury to find the uncharged conduct proven by a preponderance of the evidence. Camm, 908 N.E.2d at 224. Sufficiency of the evidence under 104(b) is reviewed for an abuse of discretion. Cox, 696 N.E.2d at 861.

As a predicate, the State introduced evidence of Duvall’s access to the premises. However, as a certified nurse’s aide, Du-vall was not permitted authorized access to patient drugs, and so the State necessarily alleged a theft. Rose testified that Duvall was working with him on March 2, 2007 on a particular ward that housed a hospice patient who had been prescribed Roxanol. Rita Bell (“Bell”), a nurse then working as a nurse’s aide, was also on duty. Rose testified that, when he and Bell left to go to the dining room, Duvall was left behind to serve lunch to bedridden patients. Bell also testified that she had worked with Duvall on the day in question. Bell had seen a bottle of Roxanol on a patient’s table, but did not pick it up because she was not in charge of the medicine cart on that day. Other testimony indicated that, when Duvall was questioned as to the missing Roxanol, she gave a suspicious account of a daytime visitor. The State presented sufficient evidence from which the trial court could have found that there was likely to be sufficient proof for a reasonable jury to find Duvall’s theft proven by a preponderance of the evidence.

Indiana Evidence Rule 403 provides:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.

All evidence that is relevant to a criminal prosecution is inherently prejudicial, and thus the Evidence Rule 403 inquiry boils down to a balance of the probative value of the proffered evidence against the likely unfair prejudicial impact of that evidence. Carter v. State, 766 N.E.2d 377, 382 (Ind.2002) (citing Richmond v. State, 685 N.E.2d 54, 55-56 (Ind.1997)). “When determining the likely unfair prejudicial impact, courts will look for the dangers that the jury will (1) substantially overestimate the value of the evidence or (2) that the evidence will arouse or inflame the passions or sympathies of the jury.” Id. (citing Evans v. State, 643 N.E.2d 877, 880 (Ind.1994)).

The value of evidence that Duvall had access to the murder weapon, a rare form of morphine typically used for palliative care for dying patients, was high. Moreover, the access had been in recent proximity to Alan’s death. The admission of such evidence was not unfairly prejudicial. The trial court did not abuse its discretion and did not commit fundamental error by allowing Rose to testify'regarding missing Roxanol.

III. Continuing Crimes

Finally, Duvall argues that the continuing crime doctrine is applicable to her multiple convictions for Insurance Fraud and Obstruction of Justice. “The continuing crime doctrine essentially provides that actions that are sufficient in themselves to constitute separate criminal offenses may be so compressed in terms of time, place, singleness of purpose, and continuity of action as to constitute a single transaction.” Riehle v. State, 823 N.E.2d 287, 296 (Ind.Ct.App.2005), trans. denied. The continuous crime doctrine does not seek to reconcile the double jeopardy implications of two distinct chargeable crimes, but rather defines those instances where a defendant’s conduct amounts to only a single chargeable crime. Id.

Duvall’s convictions for Insurance Fraud stem from six false statements given in a single insurance investigation interview on May 29, 2008. Her three convictions for Obstruction of Justice stem from a single crime scene clean-up (in which she removed an alcohol bottle, medication container, and foam from Alan’s mouth) on August 24, 2007. The State concedes— and we agree — that Duvall’s conduct was continuous so as to constitute one offense of Insurance Fraud and one offense of Obstruction of Justice.

Conclusion

The trial court did not commit reversible error or fundamental error in the admission of evidence and therefore we affirm the murder conviction. However, because Duvall’s acts constitute a single chargeable offense under the continuing crime doctrine, we affirm one conviction each for Insurance Fraud and Obstruction of Justice, but reverse and remand with instructions to vacate the remaining five convictions for Insurance Fraud and the remaining two convictions for Obstruction of Justice.

Affirmed in part, reversed in part, and remanded with instructions.

RILEY, J., and CRONE, J., concur.

      . Ind. Code § 35-42-1-1.

      . Ind. Code § 35-43-5-4.5(a)(2).

      .Ind. Code § 35-44 — 3-4(a)(3) [now repealed]. Duvall concedes there is sufficient evidence to support a single conviction for Insurance Fraud and a single conviction for Obstruction of Justice.

      . Bell was licensed as a nurse, but was working a shift as a certified nurse’s aide on that particular day.


author: ROBB, Chief Judge.

text:
    D.L., Glen Black, Ann Black, Steven Lucas, and K.L., by her Next Friend, D.L., Appellants-Plaintiffs, v. Christine HUCK, Laura Zimmerman, Angela Smith Grossman, Rhonda Friend, Angyl McClaine, and Indiana Department of Child Services, Appellees-Defendants.
    No. 79A04-1202-CT-61.
    Court of Appeals of Indiana.
    Oct. 17, 2012.

      Michael A. Wilkins, Broyles Right & Ricafort, P.C., Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Elizabeth Rogers, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

ROBB, Chief Judge.

Case Summary and Issues

D.L., Glen Black, Ann Black, Steven Lucas, and K.L. (collectively, the “Family”) appeal the trial court’s dismissal of seven out of eight counts of their complaint against the Tippecanoe County Department of Child Services and five of its employees (collectively, “DCS”). The Family raises two restated issues on appeal: 1) whether DCS was entitled to quasi-judicial immunity as granted by the trial court; and 2) whether Glen, Ann, and Steven had standing to assert claims against DCS. Concluding that DCS was not entitled to quasi-judicial immunity, but is entitled to statutory immunity as to all but one of the seven dismissed claims, and that Glen and Amn had standing to bring suit but Steven did not, we remand.

Facts and Procedural History

K.L. was born on March 11, 2008, to her mother, T.L., and father, D.L. The parents were married at the time but not living together, in part because D.L.’s job as an airline contractor required frequent reloca-tions. Based on T.L.’s history, DCS removed K.L. from T.L.’s care two days after KL.’s birth. A child in need of services (“CHINS”) action was filed and K.L. was determined to be a CHINS.

Because of the CHINS proceeding, D.L. returned to Indiana and began participating in weekly supervised visits with K.L. Believing that he could not care for K.L. because of the demands of his job, D.L. turned to his sister, Ann Black, and her husband, Glen Black (the “Blacks”). The Blacks sought to obtain custody of K.L. Prior to placing K.L. with the Blacks, DCS completed a home study and comprehensive background check of the Blacks. DCS noted that criminal history checks and a search of the Indiana Sex Offender Registry revealed no prior charges or allegations against either of the Blacks, and that further there were no prior charges or complaints against either of them in DCS records. Concluding that the Black’s home was appropriate for K.L. and would provide a safe and stable environment, on June 25, 2008, DCS placed K.L. with the Blacks. Following K.L.’s placement with the Blacks, D.L. continued his weekly supervised visits.

In November of 2008, D.L. had a conversation with DCS in which they discussed the possibility of the Blacks adopting K.L. During that conversation, D.L. was told that if he consented to the adoption and voluntarily terminated his parental rights, he would not have to participate in services and could visit K.L. at will. Based on that conversation, and believing that the Blacks could provide a better home for K.L., D.L. stopped participating in services and instead began visiting K.L. almost daily in the Blacks’ home.

By February 2009, DCS’s plan for K.L. had changed from reunification to adoption. Both T.L. and D.L. filed voluntary petitions to terminate their parental rights, explaining that they thought adoption by the Blacks was in K.L.’s best interest and that the Blacks had taken good care of her. Immediately prior to the termination hearing, counsel for DCS confirmed with D.L. that the Blacks would be able to adopt K.L. unless they were “hit by a bus or something like that.” Appellants’ Brief at 4. At the end of the hearing, the court ordered the termination of the parental rights of both D.L. and T.L. and authorized the immediate filing of a petition to adopt K.L. by the Blacks.

The following month, DCS appeared at the Blacks’ home unannounced and removed K.L. from the Blacks’ custody. DCS did not have a court order to remove K.L. The removal was based on a twenty-year-old child abuse report against Glen that DCS had recently found, in which Glen’s then sixteen-year-old daughter accused him of sexually abusing her when she was eight to ten years old. The report was “substantiated” based solely on the daughter’s statement when it was made in 1998. When the report was made, DCS did not perform a comprehensive investigation, did not interview Glen or Ann or any of the children residing with Glen, and did not provide a copy of the report to the Blacks. The allegation was never the subject of a CHINS action or any criminal charges. ' The Blacks were unaware that there had been a substantiated allegation against Glen until DCS appeared and removed K.L. from their home.

After KL.’s removal, DCS denied the Blacks any opportunity to address the allegation to challenge K.L.’s removal. DCS withdrew its consent to the Blacks’ adoption petition, and prohibited the Family from having any contact with K.L. D.L. sought custody, but was denied based on the termination of his parental rights. Steven also sought and was denied custody. K.L. was placed in the home of a couple who had no previous relationship with K.L. but were personal friends of the regional director of the Indiana Department of Child Services.

D.L. endeavored to have the order terminating his parental rights set aside, and DCS opposed these efforts. The trial court denied D.L.’s motion, but this court reversed, finding that DCS “may have put form over substance and failed to do what was in the best interest of K.L.” In re K.L., 922 N.E.2d 102, 108 (Ind.Ct.App.2010). After the appeal, D.L. was allowed to resume contact with K.L. In August of 2010, K.L. was returned to D.L.’s custody.

The Family brought suit against DCS, asserting multiple claims including negligence, fraud, intentional infliction of emotional distress, and violations of due process rights. DCS filed a motion to dismiss and the trial court granted dismissal of seven of the eight counts; holding that the claims were barred by quasi-judicial immunity because they were based on allegations that DCS acted wrongly in the course of duties within the CHINS proceeding for K.L. The trial court also concluded that Ann, Glen, and Steven lacked standing to bring the claims against DCS because they did not have a custodial relationship with K.L. prior to the CHINS proceeding. The court allowed one claim to go forward, in which Glen claimed negligence on the part of DCS regarding the substantiated report. The Family now appeals the dismissal of their other seven claims.

Discussion and Decision

I. Standard of Review

In reviewing a motion to dismiss granted pursuant to Indiana Trial Rule 12(B)(6), our standard of review is well settled: a Trial Rule 12(B)(6) motion to dismiss for failure to state a claim upon which relief can be granted tests the legal sufficiency of a claim, not the facts supporting it. Town of Plainfield v. Town of Avon, 757 N.E.2d 705, 710 (Ind.Ct.App.2001), trans. denied. Therefore, we view the complaint in the light most favorable to the non-moving party, drawing every reasonable inference in favor of this party. Id. In reviewing a ruling on a motion to dismiss, we stand in the shoes of the trial court and must determine whether the trial court erred in its application of the law. Id. The trial court’s grant of the motion to dismiss is proper if it is apparent that the facts alleged in the complaint are incapable of supporting relief under any set of circumstances. Id. Furthermore, in determining whether any facts will support the claim, we look only to the complaint and may not resort to any other evidence in the record. Id.

II. Quasi-Judicial Immunity

It is well-settled that judges are entitled to absolute judicial immunity from suits for money damages for all actions taken in the judge’s judicial capacity, unless those actions are taken in the complete absence of any jurisdiction. H.B. v. State of Indiano-Elkhart Div. of Family & Children, 713 N.E.2d 300, 302 (Ind.Ct.App.1999), trans. denied. The underlying purpose of the immunity is to preserve judicial independence in the decision-making process. Id. That same underlying policy justifies granting immunity to nonjudicial officers who perform quasi-judicial functions. Id. This quasi-judicial immunity is given to people “performing tasks so integral or intertwined with the judicial process that these persons are considered an arm of the judicial officer who is immune.” Id. Courts are, however, reluctant to apply quasi-judicial immunity too broadly, and if the “acts do not involve the judicial process so that a fear exists that freedom of judicial decision-making may be stifled,” then the person or act in question should not be shielded by immunity. Lake Cnty. Juvenile Court v. Swanson, 671 N.E.2d 429, 435 (Ind.Ct.App.1996), trans. denied.

To determine which acts are covered by quasi-judicial immunity, the United States Supreme Court has adopted a functional approach, where the court looks to the nature of the function performed rather than the identity of the actor who performed it. H.B., 713 N.E.2d at 302 (citing Forrester v. White, 484 U.S. 219, 224, 108 S.Ct. 538, 98 L.Ed.2d 555 (1988)). Under this approach, even judges are not immune for acts that stem from functions that are not adjudicative. Forrester, 484 U.S. at 219, 108 S.Ct. 538. Thus the “touchstone” when applying the functional approach is “performance of the function of resolving disputes between parties, or of authoritatively adjudicating private rights.” Antoine v. Byers & Anderson, Inc., 508 U.S. 429, 435-36, 113 S.Ct. 2167, 124 L.Ed.2d 391 (1993).

The question here then is which, if any, of the actions underlying the Family’s complaint were so integral to or intertwined with the judicial process that, in performing them, DCS would be considered an arm of the court and thus immune.

The Family notes that there are two overarching scenarios in which the functional approach leads to a grant of immunity. The first scenario is one in which there is a direct adjudication of rights, either by a judge or by someone performing an action that is functionally equivalent to that of a judge. Snyder v. Nolen, 380 F.3d 279, 286 (7th Cir.2004). The second scenario involves individuals who are carrying out the explicit orders of a judicial officer. Id. at 287. The Family contends that neither scenario is applicable to the facts of the current case, and DCS does not argue that it was acting under the first. The Family argues that the actions here do not fit within the second type of scenario either. The Family argues that the investigation into the Blacks’ backgrounds and the discovery of the substantiated report occurred “in the absence of court direction, or even approval.” Appellants’ Br. at 11. The removal itself was done without a court order. And following removal of K.L. from the Blacks, DCS failed to involve the court or seek approval retrospectively.

DCS argues that the actions here do fit within the second scenario as described in Snyder, and that DCS should therefore be given immunity. DCS relies largely on the fact that K.L. was the subject of a CHINS proceeding at the time of the events underlying the Family’s claims, and also relies on the H.B. case. In H.B., children were removed from their mother’s home and placed in foster care. During a visit with their mother, one of the children was allegedly molested by the mother’s boyfriend. The incident was reported to the Division of Family and Children (“DFC”) but not law enforcement. DFC later recommended that the children be reunited with them mother, and following that reunification the boyfriend molested at least two of the children. H.B., 713 N.E.2d at 301. In that case, we held that the DFC was entitled to immunity because it was acting in accordance with a court order to monitor the progress of the children, the reunification recommendation was made during a judicial proceeding, and the failure to report to law enforcement occurred in the course of court-ordered duties after the children were adjudicated CHINS. Id. at 303. DFC was thus determined to be immune because the actions they took were closely related to the judicial process.

DCS also points us to J.A.W. v. State, 650 N.E.2d 1142 (Ind.Ct.App.1995), in which we held that a probation officer was entitled to quasi-judicial immunity for activities that were necessary for the enforcement of the court’s order. The activities included meeting with the child, investigating complaints, reporting the results of investigations to the court, and making recommendations regarding continued placement. However, J.A.W. was vacated when the Indiana Supreme Court granted transfer; the supreme court case did not address quasi-judicial immunity. See J.A.W. v. State, 687 N.E.2d 1202 (Ind.1997). We agree with the Family that the current case is distinguishable both from H.B. and J.A.W. In those cases, the defendants were performing tasks assigned by the court in order to assist the court in decision making. Their actions and recommendations were subject to court review and supervision. Here, the actions taken by DCS are not nearly as closely tied to a judicial proceeding. After D.L. and T.L’s parental rights were terminated and adoption by the Blacks was pending, while DCS might be expected to sign off on the final adoption, they would no longer be expected to work closely with the court as they had while sorting out the CHINS case. DCS was not acting directly at the instruction of a court, and they failed to seek a court order for KL.’s removal either before or immediately after they removed her. No court reviewed their removal of K.L. or any of their subsequent actions or decisions.

Further, the Family persuasively argues that an approach granting immunity to all CHINS-related matters would amount to, not quasi-judicial immunity, but complete and total immunity for all of its actions and would be contrary to the functional analysis required by Forrester, and that under such a broad approach, DCS would “have immunity for every action it took regarding every child or family involved in a CHINS action.” Appellants’ Reply Brief at 6. The Family advocates a more nuanced analysis in keeping with the functional approach, and directs us to Millspaugh v. Cnty. Dept. of Pub. Welfare of Wabash Cnty., 937 F.2d 1172, 1175 (7th Cir.1991), cert. denied, 502 U.S. 1004, 112 S.Ct. 638, 116 L.Ed.2d 656 (1991), a Seventh Circuit case that is relevant to the case at hand as a CHINS proceeding was the subject of that case as well, and is helpful because the court dissected the various actions underlying the complaint to determine which qualified for immunity.

In Millspaugh, mothers brought suit against the department of public welfare after one of its social workers initiated and was involved in a CHINS proceeding involving the mothers’ children. Id. at 1175. The court determined that the socialworker had immunity for her behavior in court, including the materials that she chose to provide or withhold from the court, her requests for the court to make certain decisions, her motives for pursuing the case, and her failure to communicate with the mothers. Id. For all of these actions, the court held that what the worker did could not harm the mothers unless the court agreed. However, the worker was not given absolute immunity for the application for the initial order, which was likened to a police officer’s affidavit for a search warrant, or for her seizure of the children, which was deemed analogous to seizing evidence under a warrant and would have injured the mothers “even had the state court resolved all questions in their favor.” Id. at 1176-77. Because in the case at hand DCS was not actively engaged with the court, and the child was seized without a court order, the facts more closely fit the types of actions for which the Millspaugh court determined that immunity was not appropriate. Here, the family was harmed without a court agreeing to any of the harmful actions.

All of the actions complained of by the Family were only indirectly, at best, related to any court order or instruction, and were not sufficiently intertwined with the judicial process to qualify for quasi-judicial immunity. DOS’s handling of this case was extremely sloppy, careless, and regrettable. Based on a twenty-year-old report and with no investigation, they independently decided to remove K.L. from the Blacks’ home. Because there was no court oversight of DOS’s actions and decisions, and they were not implementing a court order, DCS is not entitled to quasi-judicial immunity for any of the actions underlying the Family’s complaint. DCS may not choose to side-step the judicial process and then hide behind that same process.

III. Statutory Immunity

However, while the trial court dismissed the seven counts based on quasi-judicial immunity, DCS in its motion to dismiss outlined other immunities that it believed were applicable. Because we may affirm on any ground, we will address DCS’s claim of statutory immunity under Indiana Code section 31-25-2-2.5. City of South Bend v. Century Indem. Co., 821 N.E.2d 5, 9 (Ind.Ct.App.2005) (“We may sustain the trial court’s ruling if we can affirm on any basis found in the record.”), trans. denied. The statute provides, regarding the Department of Child Services, that “[t]he following are not personally liable, except to the state, for an official act done or omitted in connection with performance of duties under this title: (1) The director of the department. (2) Other officers and employees of the department.” Ind.Code § 31-25-2-2.5. There is no published case law interpreting this statute, but in interpreting a statute our goal is to give effect to the intent of the legislature, and in doing so we are guided by the principle' that the best evidence of the legislature’s intent is the language of the statute itself. Robinson v. Gazvoda, 783 N.E.2d 1245, 1250 (Ind.Ct.App.2003), trans. denied.

This statute grants an immunity that is broader than that of quasi-judicial immunity, in that it specifically encompasses both actions and omissions, and does not apply only to actions taken in conjunction with a court. While the doctrine of quasi-judicial immunity is limited and does not apply to the facts at hand, the statute granting immunity does appear to apply to most of the actions that underlie the Family’s claims. Most of the Family’s claims are for harms that occurred as the result of actions or omissions that could reasonably be seen to be within the duties of the Department of Child Services employees. The fraud claim, however, is based on alleged acts that would not be within the duties of the Department, and therefore would not be protected by immunity. Further, although the statute applies only to employees of the Department of Child Services and not the organization itself, the only way to reach the organization is through the doctrine of respondeat superi- or; thus once the employees here are given immunity, DCS as a whole effectively has immunity for those actions and omissions. We are constrained by the plain language of the statute to hold that DCS is entitled to statutory immunity for all of the dismissed claims with the exception of the claim for fraud, which will be allowed to move forward.

IV. Standing

The second issue on appeal stems from the trial court’s determination that Ann, Glen, and Steven did not have standing to raise any of the claims that were dismissed. Standing refers to the question of whether a party has an actual demonstrable injury for purposes of a lawsuit. Smith v. City of Hammond, 848 N.E.2d 338, 339 (Ind.Ct.App.2006), tram, denied. To establish standing, a plaintiff must demonstrate a personal stake in the outcome of the lawsuit and that the injury is a result of the defendant’s conduct. Id. at 339-40. A determination that Ann, Glen, or Steven had standing would necessarily be based on a determination that they had a protectable liberty interest in their family unit with K.L., or as the Family puts it, “in their ongoing relationship with K.L.” Appellants’ Br. at 15; see Smith v. Org. of Foster Families For Equal. & Reform, 431 U.S. 816, 840-43, 97 S.Ct. 2094, 53 L.Ed.2d 14 (1977).

We are unable to find, and the parties do not point to, Indiana cases on point that provide guidance as to the liberty interests that may reside with the extended family members in this ease. Nonetheless, the Family makes a convincing argument for finding a liberty interest in the Blacks. Indiana law itself recognizes the importance of blood relationships, and requires child services to consider suitable blood relatives for placement of the child before looking to other out-of-home placements. Ind.Code § 31-34-15-4(3). In Smith, the United States Supreme Court noted that the importance of family relationships stems from maintaining emotional attachments, promoting a way of life to children, and preserving blood ties. Id. at 844, 97 S.Ct. 2094. Recognizing that strong bonds can form in the absence of blood relationships, the Court was unable to dismiss a typical foster family as “a mere collection of unrelated individuals,” and noted that in the right circumstances, a foster family may “hold the same place in the emotional life of the foster child, and fulfill the same socializing functions, as a natural family.” Id.

The Court ultimately avoided reaching the issue of whether the foster parents had a liberty interest, but in its analysis the Court distinguished a typical foster family from a natural family, identifying differences that, as the Family points out, are absent in the case at hand. Firstly, in a typical foster family situation, the source of the family is in state law and contract, rather than having origins outside the State. Id. at 845, 97 S.Ct. 2094. Here, while there was an additional relationship between K.L. and the Blacks that was provided by the State, the Blacks had a pre-existing biological relationship with her that was unrelated to any contract and that is not typical of foster families.

Secondly, and perhaps most importantly, in a typical foster parent situation there will be an unavoidable tension between any liberty interests of the foster parents and those of the natural parents. Id. at 846, 97 S.Ct. 2094. “Whatever liberty interest might otherwise exist in the foster family as an institution, that interest must be substantially attenuated where the proposed removal from the foster family is to return the child to his natural parents.” Id. at 846-47, 97 S.Ct. 2094. Here, there was no such tension. K.L.’s natural parents wanted the Blacks to raise her, and in fact terminated their parental rights in expectation of the Blacks adopting K.L. The Blacks’ goals and the natural parents’ goals were in harmony. Given that lack of tension, in addition to the multiple ties that the Blacks had to K.L. — they are her blood relatives, they were her foster parents, they were in the process of adopting her, and they had raised her practically since birth — it seems at odds with reality to conclude that they did not have any liberty interest in their relationship with her.

Other courts have also found a liberty interest in foster parents who had stronger ties to the child than does a typical foster parent. See, e.g., Rivera v. Marcus, 696 F.2d 1016, 1024-25 (2d Cir.1982) (finding a liberty interest in a custodial relative who was also a foster parent); Osborne v. Cnty. of Riverside, 385 F.Supp.2d 1048, 1053-55 (C.D.Cal.2005) (finding that a grandmother and an aunt would both have a liberty interest in family integrity where they had a long-standing custodial relationship with related children); A.C. v. Mattingly, 2007 WL 894268 at *5, No. 05 CV 2986(TPG), (S.D.N.Y. Mar. 20, 2007) (finding a liberty interest where the foster mother was a biological relative who had raised the children essentially from birth, and there was no indication of objection from the natural parents); see also Berhow v. Crow, 423 So.2d 371, 372 (Fla.Dist.Ct.App.1982) (holding that foster parents, selected by the mother and approved of by the father permanently to care for their infant, have a liberty interest); cf. Kyees v. Cnty. Dept. of Pub. Welfare of Tippecanoe Cnty., 600 F.2d 693 (7th Cir.1979) (holding that there was no liberty interest for the typical foster parents in question).

The Rivera court also noted that the children in question themselves held a liberty interest in preserving the integrity and stability of their extended family, where they were not being removed in order to be reunited with their natural parents, and that the court “must ensure that due process is afforded in situations like that presented here where the state seeks to terminate a child’s long-standing familial relationship.” 696 F.2d at 1026. Additionally, some courts have found prospective adoptive parents to have protected liberty interests in their family unit. Thelen v. Catholic Soc. Serv., 691 F.Supp. 1179,1185 (E.D.Wis.1988). But see Rodriguez v. McLoughlin, 214 F.3d 328, 341 (2d Cir.2000) (holding that there was no liberty interest, where adoption placement agreement made it clear that adoption was not a foregone conclusion), cert. denied, 532 U.S. 1051, 121 S.Ct. 2192, 149 L.Ed.2d 1023 (2001).

Under the facts of the case before us, we determine that the Blacks had a liberty interest in their relationship with K.L., such that they had standing to bring suit. The argument that Steven has a liberty interest in his relationship with K.L. is much more tenuous however. The Family largely argues that Steven is “more than ‘just a grandfather’ ” because of the Indiana law calling for child services to consider suitable blood relatives, including grandparents, before considering out of home placements. Appellant’s Br. at 22-23; Ind.Code § 31-34-15^(3). The Family points to, and independent research has revealed no, cases that support the proposition that grandparents, without a custodial relationship, have a liberty interest in the relationship with their grandchildren. While blood ties may be an important consideration, they are not, standing alone, sufficient to confer a pro-tectable liberty interest. Much of the law surrounding grandparents’ rights with regards to their grandchildren is related to the grandparent visitation statute in Indiana, which is in derogation of the common law. In re Visitation of J.P.H., 709 N.E.2d 44, 46-47 (Ind.Ct.App.1999). If at common law grandparents have no right to seek visitation with a grandchild, it follows that they do not have a liberty interest in maintaining a relationship with that child, at least absent a custodial relationship as in the cases noted above. The trial court correctly determined that Steven did not have standing to bring suit.

Conclusion

We conclude that DCS was not entitled to quasi-judicial immunity for any of the claimed actions but is entitled to statutory immunity for all of the dismissed claims except for the fraud claim. We further conclude that Ann and Glen, but not Steven, had standing to bring suit. Therefore, D.L., K.L., Ann Black, and Glen Black may proceed on the fraud claim. Remanded for proceedings consistent with this opinion.

Remanded.

BRADFORD, J., and PYLE, J., concur.

      . There seems to be some dispute between the parties as to whether Steven formally requested custody of K.L., and whether DCS ever considered placing K.L. with him.

      . We heard oral argument on September 27, 2012, at Indiana State University in Terre Haute, Indiana. We thank the students, faculty, and staff of the university for the gracious reception, and counsel for their presentations.

      . In Columbus Reg'l Hosp. v. Amburgey, 2012 WL 4097716 at *6, No. 03A01-1110-CT-450 (Ind.Ct.App. Sept. 19, 2012), we recently allowed a complaint against a hospital to go forward under a theory of vicarious liability where suit against the physicians whose acts were at issue was barred by a statute of limitations. That case is distinguishable from the case at hand. In Amburgey, while the physicians were not originally named, suit against them was possible when suit was timely brought against the hospital; it was only later that the statute of limitations ran. Here however, because of statutory immunity, suit against the individual employees would never have been possible.