text:
    Alexis NICHOLS, f/k/a Alexis Brueggeman, Plaintiff-Appellant, v. David FAHRENKAMP and David Fahrenkamp, d/b/a Fahrenkamp Law Offices, Defendants-Appellees.
    NO. 5-16-0316
    Appellate Court of Illinois, Fifth District.
    Opinion Filed: July 9, 2018
    Charles W. Armbruster III, Michael T. Blotevogel, Roy C. Dripps III, Winterscheidt & Blotevogel, LLC, 51 Executive Plaza Court, Maryville, IL 62062, Attorneys for Appellant
    M. Joseph Hill, 511 St. Louis Street, P.O. Box 647, Edwardsville, IL 62025, Attorney for Appellees
   JUSTICE CATES delivered the judgment of the court, with opinion.

¶ 1 Plaintiff, Alexis Nichols, f/k/a Alexis Brueggeman, brought a legal malpractice action against defendants, David Fahrenkamp and David Fahrenkamp, d/b/a Fahrenkamp Law Offices, to recover damages occasioned by the negligence of defendants during the time attorney Fahrenkamp was acting as plaintiff's guardian ad litem . Plaintiff alleged that attorney Fahrenkamp's negligence caused the dissipation of settlement proceeds that had been recovered from a personal injury lawsuit brought on behalf of plaintiff when she was a minor. The circuit court of Madison County entered summary judgment for defendants, relying on the premise that a private attorney appointed as a guardian ad litem has quasi-judicial immunity for his or her omissions "so long as the guardian ad litem follows the directions of the court and is within the scope of the appointment." We reverse the entry of summary judgment in favor of defendants and remand for further proceedings.

¶ 2 When plaintiff was 11 years old, she received a $600,000 settlement for injuries she sustained in a motor vehicle accident. Because plaintiff was a minor, her mother was appointed as guardian of plaintiff's person and estate. Attorney Fahrenkamp was appointed by the court as the guardian ad litem for plaintiff. In 2012, plaintiff brought suit against her mother, alleging that she spent funds from the settlement account that were not used for the benefit of plaintiff, but instead were used solely for her mother's benefit. According to the allegations in the 2012 litigation, plaintiff alleged that her mother petitioned the probate court and withdrew some $79,507 that was not used on plaintiff's behalf. This litigation, case number 12-MR-188, proceeded to trial in 2013.

¶ 3 On April 17, 2013, during trial, the judge asked, "And where was the GAL [guardian ad litem ] in all of this?" (The guardian ad litem , attorney Fahrenkamp, had not been named as a party-defendant in 12-MR-188.) At the conclusion of the trial in 12-MR-188, the court entered an award for plaintiff, but limited the amount of the recovery. With regard to the amount of damages, the trial court determined that plaintiff's mother could not be faulted for her failure to have receipts to prove each and every amount she claimed to have spent for the items provided to her daughter. The court explained that it would not assess damages "while [Plaintiff] had a guardian ad litem who approved the estimates and expenditures." In other words, the court relied on attorney Fahrenkamp's status as guardian ad litem to limit plaintiff's remedies against her mother. As a result, judgment was entered against plaintiff's mother for $16,365, plus $10,000 in attorney fees and the return of a 2007 vehicle, far less than the amount plaintiff claimed had been dissipated.

¶ 4 On August 16, 2013, plaintiff filed suit against defendants, contending that they failed to protect her interests by allowing her mother to convert plaintiff's settlement funds for the mother's personal benefit. In her complaint against defendants, plaintiff alleged that attorney Fahrenkamp never met with or talked to plaintiff during any of the time he was acting as her guardian ad litem , nor did he ever ask her if the statements contained in her mother's petitions to withdraw monies from the settlement account were accurate. She averred that if Fahrenkamp had spoken with her, she would have told him that the expenses her mother claimed needed to be paid out of plaintiff's settlement account either did not exist, were grossly inflated, or were covered expenses that plaintiff, herself, was already paying for out of other proceeds. Plaintiff further stated that she had no idea she could ask attorney Fahrenkamp, or any other attorney, for advice regarding her mother's requests to withdraw funds from the settlement proceeds. Plaintiff claimed she did not even realize that she had a guardian ad litem appointed for her, let alone attorney Fahrenkamp, until after the probate file was closed on September 2, 2010, when she reached the age of 18. Plaintiff further asserted that information about her settlement monies, and the process by which such funds could be used on her behalf, were largely kept from her during her childhood. Finally, plaintiff also claimed that defendants negligently failed to audit the account or report any irregularities to the court or to the plaintiff.

¶ 5 Defendants filed a motion to dismiss, and then a motion for summary judgment, alleging that attorney Fahrenkamp, as a guardian ad litem , had quasi-judicial immunity for the functions he performed in the probate proceeding, given that he was acting within the scope of his appointment by the court. Attorney Fahrenkamp specifically averred that he met with plaintiff on three separate occasions during the time he acted as her guardian ad litem . He also stated that he gave plaintiff, who was then 11 years old, his business card when he was first appointed as her guardian ad litem , and there was nothing that prevented her from contacting him through the numbers listed on the business card, if she had any questions or concerns.

¶ 6 On June 22, 2016, the court granted defendants' motion for summary judgment. The court, in ruling in favor of defendants, recognized that Illinois law had not yet answered the question of whether a guardian ad litem was subject to a grant of immunity under the circumstances presented by plaintiff's claims. The trial court recognized, however, that a guardian ad litem , appointed by the court in a probate proceeding, is under a duty to help safeguard and protect the interests and welfare of the minor. In drawing a distinction between immunity and duty, the court then explained, relying on McCarthy v. Cain , 301 Ill. 534, 134 N.E. 62 (1922), that a guardian ad litem should examine the case, determine what the rights are of his wards, what defense their interests demand, and then make such defense as the exercise of care and prudence would dictate.

"The guardian ad litem who perfunctorily files an answer for his ward and then abandons the case fails to comprehend his duties as an officer of the court." (Internal quotation marks omitted.) McCarthy , 301 Ill. at 539, 134 N.E. 62.

¶ 7 Despite the trial court's recognition of the duty imposed upon a guardian ad litem , the court granted summary judgment in favor of the defendants, finding that the failure of the guardian ad litem to meet with plaintiff over the monies requested by mother did not "constitute a failure to fulfill the actions and duties that were assigned to defendant by the probate court." The court reasoned that so long as the guardian ad litem acted within the scope of his appointment to give advice to the court, he should enjoy the same immunity as the court. Because attorney Fahrenkamp's role was general, and his duty was to act in the ward's best interests by making recommendations to the court, the court concluded that Fahrenkamp had no duty to perform the specific tasks of verifying mother's requests, perform audits of the settlement account, or act as an accountant to review receipts, unless specifically instructed by the court to do so.

¶ 8 In making its ruling, the court relied on Heisterkamp v. Pacheco , 2016 IL App (2d) 150229, 400 Ill.Dec. 227, 47 N.E.3d 1192. Although the facts of that case involved a court-appointed expert to perform a custody evaluation, the trial court adopted the Heisterkamp reasoning and determined that when a court-appointed individual acts within the scope of his or her appointment to give advice to the court regarding the best interest of the minor, for use in the court's decision-making process, that individual must be cloaked with the same immunity as the court. With regard to plaintiff's allegations that Fahrenkamp did not meet with her, the court recognized that the facts regarding this issue were in dispute. The court held, however, that this dispute was not a material fact that precluded summary judgment. Accordingly, the failure to meet with plaintiff over monetary requests did not constitute a failure to fulfill the actions and duties that were assigned to the guardian ad litem by the probate court. This meant, in essence, that plaintiff had little remedy for the dissipation and conversion of her assets. According to the trial court, the plaintiff's mother was shielded from liability for her alleged misconduct because plaintiff had a guardian ad litem , who approved the expenditures, and the guardian ad litem was immune from liability because the court order appointing him as guardian ad litem lacked any specificity regarding his duties.

¶ 9 We agree with plaintiff that the trial court erred in granting defendants quasi-judicial immunity because of the lack of specific directions in the order appointing attorney Fahrenkamp as guardian ad litem . Under the court's reasoning, the guardian ad litem had no independent duty to plaintiff, and the appointment of a guardian ad litem was nothing more than an empty gesture.

¶ 10 Analysis

¶ 11 The review of an order granting summary judgment is de novo . Forsythe v. Clark USA, Inc. , 224 Ill. 2d 274, 280, 309 Ill.Dec. 361, 864 N.E.2d 227, 232 (2007) (opinion of Garman, J., joined by Fitzgerald and Karmeier, JJ.). Summary judgment should not be allowed unless the moving party's right to judgment is clear and free from doubt. If the undisputed material facts could lead reasonable observers to divergent inferences, or if there is a dispute as to a material fact, summary judgment should be denied and the issue should be decided by the trier of fact.

Wells v. Enloe , 282 Ill. App. 3d 586, 589, 218 Ill.Dec. 425, 669 N.E.2d 368, 371 (1996). Only when the party seeking summary judgment demonstrates that his or her right to judgment is clear, free from doubt, and determinable solely as a matter of law should summary judgment be entered. Taitt v. Robinson , 266 Ill. App. 3d 130, 132, 203 Ill.Dec. 334, 639 N.E.2d 893, 895 (1994). Under the circumstances before us, the trial court erred in granting summary judgment to defendants. Fahrenkamp, as the guardian ad litem , was not entitled to quasi-judicial immunity or any immunity for that matter. Fahrenkamp was under a duty to serve the best interests of plaintiff, and the facts, if taken as true, created a material question of fact with regard to whether Fahrenkamp breached his duty to plaintiff.

¶ 12 This court has previously recognized that "[i]t is the public policy of this State that rights of minors be carefully guarded. No citation of authority need be given to state that one of the cardinal precepts of our law is that in any court proceeding involving minors their best interest and welfare is the primary concern of the court." Layton v. Miller , 25 Ill. App. 3d 834, 838, 322 N.E.2d 484, 487 (1975). Here, the probate court recognized that an 11-year-old child needed an attorney who would look out for her best interests and ensure that anyone who sought to use her settlement funds was doing so for the child's welfare. Therefore, a guardian ad litem was appointed to protect plaintiff from anyone who could exploit her. Plaintiff claims she never met with attorney Fahrenkamp, or even knew that he had been appointed to represent her. Attorney Fahrenkamp claims he met with plaintiff three times over a period of six years, and gave the 11-year-old plaintiff his business card the first time they met. We find it incredulous that an 11-year-old would understand the significance of attorney Fahrenkamp being appointed as her guardian ad litem , or even understand that she could call numbers listed on a business card to get advice. In any event, contrary to the court's ruling, these issues represented material facts, and this factual dispute was not capable of being resolved by summary judgment. See Ahle v. D. Chandler, Inc. , 2012 IL App (5th) 100346, ¶ 13, 359 Ill.Dec. 561, 966 N.E.2d 1249 (trial court determines whether a question of fact exists when ruling on a motion for summary judgment; court does not decide a question of fact and cannot make credibility determinations or weigh evidence). These conflicting facts, despite their significance, are irrelevant if the guardian ad litem is immune from liability, as concluded by the trial court. In our view, such a finding ignores a decision of our supreme court in Stunz v. Stunz , 131 Ill. 210, 23 N.E. 407 (1890), wherein the court stated:

"It is the duty of the guardian ad litem , when appointed, to examine into the case and determine what the rights of his wards are, and what defense their interest demands, and to make such defense as the exercise of care and prudence will dictate. He is not required to make a defense not warranted by law, but should exercise that care and judgment that reasonable and prudent men exercise, and submit to the court, for its determination, all questions that may arise, and take its advice, and act under its direction in the steps necessary to preserve and secure the rights of the minor defendants." Stunz , 131 Ill. at 221, 23 N.E. 407.

As the guardian ad litem , Fahrenkamp was obligated to protect and defend the interests of the minor plaintiff, regardless of whether the court order contained any specifics. In doing so, "[i]t was his duty to have understood the cause and the rights of the parties, and to have called [to] the attention of the court" any irregularities in the withdrawals of plaintiff's settlement proceeds. See Stunz , 131 Ill. at 221, 23 N.E. 407.

¶ 13 In deciding this case, we also acknowledge the reasoning set forth in Dixon v. United States , 197 F.Supp. 798 (W.D.S.C. 1961), as noted by the trial court in its order, even though based on South Carolina law. The tenets are equally applicable here, where the trial court described more fully the duties and obligations of a guardian ad litem :

"The position of a guardian ad litem or next friend is one of trust and confidence toward the infant as well as the court; hence, it is his duty fully to protect the infant's interests in all matters relating to the litigation, as the infant might act for himself if he were of capacity to do so. His duty requires him to acquaint himself with all the rights of the infant in order to protect them, and to submit to the Court for its consideration and decision every question involving the rights of the infant affected by the suit. He should be as careful not to do anything, or allow anything to be done, to the prejudice of his ward's interest, as the court from which he receives his appointment. If in consequence of the culpable omission or neglect of the guardian ad litem the interests of the infant are sacrificed, the guardian may be punished for his neglect as well as made to respond to the infant for the damage sustained." (Internal quotation marks omitted.) Dixon , 197 F.Supp. at 802-03.

¶ 14 In light of Stunz , and the foregoing, we hold that attorney Fahrenkamp, as guardian ad litem for the minor plaintiff, owed a duty to plaintiff to render advice and to protect plaintiff's assets and interests arising out of the underlying personal injury settlement. He had a duty to act as an advocate on behalf of plaintiff. His failure to meet with or otherwise communicate with his ward, as plaintiff contends, did not comply with that duty owed plaintiff, as he was not fulfilling his role as plaintiff's advisor, advocate, negotiator, or evaluator. Contrary to the arguments made by plaintiff, there are no statutory or common law requirements that would have mandated that the guardian ad litem provide the court with an accounting. But there was certainly a common law duty that may have been breached, depending on the outcome of the factual disputes presented by the parties.

¶ 15 We also agree with plaintiff that attorney Fahrenkamp was not entitled to the protections of any form of immunity in his role as guardian ad litem . Giving any guardian ad litem absolute immunity under the circumstances presented here is contrary to the public policy of this state. Unlike the expert witness in Heisterkamp , Fahrenkamp was not simply a neutral party, appointed by the court to act as a professional expert. Fahrenkamp was a licensed attorney, an officer of the court, who should have understood the need to protect the assets of his ward. In his role as guardian ad litem , he was to advise the court, but only after making careful inquiry for the purpose of protecting the minor plaintiff's interests. In his role as advisor to the court, Fahrenkamp was not the mother's rubber-stamp, but instead the plaintiff's watchdog, authorized by the court to protect the minor's assets. And, if attorney Fahrenkamp was not supposed to question the mother's requests for funds she was withdrawing from plaintiff's settlement monies, we question what he was supposed to do, and what he got paid for during the six years he allegedly served as plaintiff's guardian ad litem . If the situation were as plaintiff claims, attorney Fahrenkamp did not advise plaintiff and seemingly did very little to verify that the substantial sums of money withdrawn from plaintiff's account were truly being used for the benefit of plaintiff. Fahrenkamp's alleged omissions, if proven true, were not in plaintiff's best interests and, according to plaintiff, led to the dissipation of her settlement proceeds. Granting the guardian ad litem quasi-judicial immunity meant that plaintiff was not allowed to pursue any remedy for the guardian ad litem 's failure to exercise that degree of care and judgment that reasonable and prudent men exercise in these circumstances, to protect the assets of a minor.

¶ 16 The trial court concluded, and defendants argue, that they are entitled to the same protection afforded guardians ad litem appointed in dissolution of marriage and child custody proceedings. See 750 ILCS 5/506(a)(2), (a)(3) (West 2012). The rationale behind giving child representatives in dissolution cases absolute immunity is so that they can fulfill their obligations, without worry of harassment or intimidation from dissatisfied parents. Vlastelica v. Brend , 2011 IL App (1st) 102587, ¶ 23, 352 Ill.Dec. 791, 954 N.E.2d 874. Under the circumstances presented here, there is no reason for granting that kind of immunity. Rather, the situation here is more akin to a fiduciary relationship between a guardian and a ward as a matter of law. See Apple v. Apple , 407 Ill. 464, 469, 95 N.E.2d 334, 337 (1950). Such a relationship between a guardian and a ward is equivalent to the relationship between a trustee and a beneficiary. See Parsons v. Estate of Wambaugh , 110 Ill. App. 3d 374, 377, 66 Ill.Dec. 145, 442 N.E.2d 571, 572 (1982) ; see also In re Estate of Swiecicki , 106 Ill. 2d 111, 117-18, 87 Ill.Dec. 511, 477 N.E.2d 488, 490 (1985) (the fiduciary duties owed a beneficiary by a trustee and a ward by a guardian are similar). The guardian of a minor is a trustee of the minor's property for the minor's benefit and is chargeable as such; in other words, the guardian must be held to have dealt with the minor's property for the benefit of the minor. In re Estate of Swiecicki , 106 Ill. 2d at 119, 87 Ill.Dec. 511, 477 N.E.2d 488. Attorney Fahrenkamp clearly did not deal with plaintiff's property for her benefit, if plaintiff's allegations prove true.

¶ 17 In further support of our reasoning that a guardian ad litem has a duty, independent of merely acting as an arm of the court, we note that in In re Estate of Finley , 151 Ill. 2d 95, 176 Ill.Dec. 1, 601 N.E.2d 699 (1992), our supreme court allowed a guardian ad litem to file an appeal on behalf of a minor, even after the court had terminated the need for the guardian. Finley involved a wrongful death claim wherein the court ruled that minor siblings of the decedent were not entitled to any recovery for loss of society. The guardian ad litem for the minors objected to the settlement, wherein the minor siblings of the decedent were awarded no portion of the settlement proceeds for the loss of society of their brother. The trial court overruled the objections of the guardian ad litem and approved the settlement. In the same order, the court terminated the guardian ad litem 's representation of the minors. Two weeks after the trial court entered its order, the guardian ad litem filed an appeal on behalf of the minors. The first issue raised was whether the guardian ad litem had standing to bring the appeal. Our supreme court answered this question in the affirmative, finding that the trial court could not preclude the filing of an appeal on behalf of the minors simply by vacating the appointment of the guardian ad litem . The guardian ad litem was simply fulfilling his obligation to protect the best interests of his wards. Finley , 151 Ill. 2d at 100, 176 Ill.Dec. 1, 601 N.E.2d 699.

¶ 18 The dissent suggests that not granting immunity to a guardian ad litem , no matter the factual circumstances, will have a chilling effect on attorneys willing to serve as guardians ad litem in general. In support, the dissent refers primarily to those cases involving marital dissolution and child custody. First, we are not concluding that all guardians ad litem have no immunity. Again, we recognize that those guardians ad litem appointed to serve as "an arm of the court," as in custody situations, for instance, need immunity in order to best serve the needs of the court and any minors involved in such proceedings. Second, the threat of civil liability in those instances where a guardian does not have immunity is no different than that faced by any attorney appearing in any other type of lawsuit and is consistent with the fiduciary obligation imposed upon any guardian in representing a ward under the Probate Act of 1975. See 755 ILCS 5/11-13(b), (d) (West 2012).

¶ 19 Having concluded that attorney Fahrenkamp, as guardian ad litem , did not have quasi-judicial immunity under the circumstances presented here, we also conclude that summary judgment should not have been entered. The evidence presented by plaintiff showed there were genuine issues of fact regarding whether defendant breached his duties to her. Accordingly, the trial court erred in granting summary judgment for the defendants. We therefore reverse the grant of summary judgment in favor of defendants and remand this cause to the circuit court of Madison County for further proceedings.

¶ 20 Reversed and remanded.

JUSTICE CHAPMAN concurred in the judgment.

JUSTICE GOLDENHERSH dissented, with opinion.

¶ 22 I respectfully dissent.

¶ 23 As noted in the majority opinion, while alluding to both qualified and absolute immunity of attorney Fahrenkamp, as plaintiff's guardian ad litem , the majority concludes that attorney Fahrenkamp is not entitled to either form of immunity. In my view, this runs contrary both to sound authority and is impractical in practice in our trial courts.

¶ 24 The trial judge, in her ruling adverse to plaintiff, found that there was no failure by attorney Fahrenkamp to fulfill the actions and duties directed by the probate court. Accordingly, attorney Fahrenkamp, in the trial court's opinion, acted within the scope of his appointment, including making recommendations to the court, and fulfilled the instructions of the court. The trial court determined that although there was a dispute between plaintiff and defendants as to an alleged failure to meet, this was not a material fact that would preclude summary judgment in favor of defendants. The trial court determined that defendants are entitled to quasi-judicial immunity and relied substantially on Heisterkamp (Heisterkamp v. Pacheco , 2016 IL App (2d) 150229, ¶ 1, 400 Ill.Dec. 227, 47 N.E.3d 1192 (absolute immunity before an expert) ). In my view, the determination of the trial court was correct.

¶ 25 The majority's disposition denying any form of immunity, absolute or quasi-qualified, runs counter to sound authority and reads Vlastelica v. Brend , 2011 IL App (1st) 102587, 352 Ill.Dec. 791, 954 N.E.2d 874, too narrowly. The Brend court determined that the child representative and guardians ad litem were entitled to absolute immunity. Its sound reasoning, with which I agree, is as follows:

"The Supreme Court has recognized that the common law provides for absolute immunity for judges (see Briscoe v. LaHue , 460 U.S. 325, 334-35 [103 S.Ct. 1108, 75 L.Ed.2d 96] (1983) ), and the Seventh Circuit Court of Appeals (hereinafter, the Seventh Circuit) has held that guardians ad litem and child representatives are entitled to the same absolute immunity because they are 'arms of the court.' Cooney v. Rossiter , 583 F.3d 967, 970 (7th Cir. 2009). The Cooney court stated:
'Guardians ad litem and court-appointed experts, including psychiatrists, are absolutely immune from liability for damages when they act at the court's direction. [Citations.] They are arms of the court, much like special masters, and deserve protection from harassment by disappointed litigants, just as judges do. Experts asked by the court to advise on what disposition will serve the best interests of a child in a custody proceeding need absolute immunity in order to be able to fulfill their obligations "without the worry of intimidation and harassment from dissatisfied parents." [Citation.] This principle is applicable to a child's representative, who although bound to consult the child is not bound by the child's wishes but rather by the child's best interests, and is thus a neutral, much like a court-appointed expert witness.' Cooney , 583 F.3d at 970.
Plaintiffs here argue that as a federal court decision, Cooney is not binding on us (see Werderman v. Liberty Ventures, LLC , 368 Ill. App. 3d 78, 84, 306 Ill.Dec. 227, 857 N.E.2d 320 (2006) ) and should not be followed unless its logic is persuasive. * * *
Contrary to plaintiffs' arguments, we find Cooney 's logic persuasive." Brend , 2011 IL App (1st) 102587, ¶¶ 21-23, 352 Ill.Dec. 791, 954 N.E.2d 874.

¶ 26 This decision and its reasoning clarifies earlier supreme court authority. Clarke v. Chicago Title & Trust Co. , 393 Ill. 419, 66 N.E.2d 378 (1946) (which implied that some form of immunity was appropriate for persons in situations similar to that of defendants). In sum, existent authority and sound reasoning for the authority cited above indicates that some form of immunity is appropriate for defendants and the trial court appropriately so found.

¶ 27 Dispositions designated by this court as opinions have consequences, both jurisprudential and practical. In this case, the majority's opinion has adverse practical consequences. It imposes upon trial judges an obligation to provide specificity in directions to the guardian ad litem , which may or not be effective, may or may not cover the factual situation at issue, and may very likely be premature in the development of the litigation in which the guardian ad litem is acting, since the guardian ad litem 's appointment would likely be early in the litigation and prior to development of facts and issues. While this problem may be subject to remedy by appropriate and timely motions of the guardian ad litem or other parties, the more serious consequence is to the attorney who considers accepting a guardian ad litem appointment. The majority's opinion imposes upon the guardian ad litem duties and requirements, not well defined, despite the finding of the trial court that this guardian ad litem fulfilled all of the conditions and instructions imposed upon him. In effect, the majority has set up that future guardians ad litem be blindsided by duties not specific or implied in the trial judge's appointment and subsequent orders, the effects of which are adverse. Will an experienced attorney who takes guardian ad litem appointments be willing to continue to do so if the attorney disagrees in their professional judgment with a request or a demand and accordingly be subject to litigation for exercising that professional judgment and discretion in their actions in representations to the court? Will a younger, less experienced attorney be willing to accept guardian ad litem appointments with such a nebulous or absent delineation of supposed duties and the consequent exposure to liability without either quasi or absolute immunity? Will the trial judge, who has determined that appointment of a guardian ad litem is required, be able to find a sufficient number of adequately qualified attorneys to take such appointments? Any of these consequences are adverse to the effective administration of justice in such an important area.

¶ 28 For the reasons stated above, I respectfully dissent from my colleagues' disposition.


source: Caselaw Access Project

license: Public Domain

text:
    IN RE CHRISTOPHER C., Alleged to be a Person Subject to the Involuntary Administration of Psychotropic Medication
    (The People of the State of Illinois, Petitioner-Appellee, v. Christopher C., Respondent-Appellant).
    NO. 5-15-0301
    Appellate Court of Illinois, Fifth District.
    Rule 23 Order Filed: October 18, 2018 Motion to Publish Granted: November 16, 2018 Opinion Filed: November 16, 2018
    Attorneys for Appellant Barbara A. Goeben, Staff Attorney, Veronique Baker, Director, Legal Advocacy Service, Guardianship and Advocacy Commission, Metro East Regional Office, 4500 College Avenue, Suite 100, Alton, IL 62002
    Attorneys for Appellee Hon. Jeremy R. Walker, State's Attorney, Randolph County Courthouse, Chester, IL 62233; Patrick Delfino, Director, David J. Robinson, Acting Deputy Director, Chelsea E. Kasten, Staff Attorney, Office of the State's Attorneys, Appellate Prosecutor, Fifth District Office, 730 E. Illinois Highway 15, Suite 2, P.O. Box 2249, Mt. Vernon, IL 62864
   PRESIDING JUSTICE BARBERIS delivered the judgment of the court, with opinion.

¶ 1 The respondent, Christopher C., appeals from the order of the circuit court of Randolph County authorizing the involuntary administration of psychotropic medication and testing, pursuant to section 2-107.1(a-5) of the Mental Health and Developmental Disabilities Code (Code) ( 405 ILCS 5/2-107.1(a-5) (West 2014) ). The respondent argues that the court's order failed to comply with the Code (id. § 2-107.1(a-5)(4)(G), (a-5)(6) ) because (1) the State failed to prove by clear and convincing evidence that the testing and procedures requested in the petition were essential for the safe and effective administration of the medication and (2) the court's designation of specific persons authorized to administer treatment was not supported by the evidence. In addition, the respondent argues that he was denied effective assistance of counsel. For the reasons that follow, we reverse.

¶ 2 I. Background

¶ 3 The respondent was admitted to the Chester Mental Health Center (CMHC) on May 21, 2015, after he was found unfit to stand trial on a charge for aggravated assault. On July 23, 2015, the respondent's treating psychiatrist at CMHC, Dr. Nageswararao Vallabhaneni, filed a petition seeking an order authorizing the involuntary administration of psychotropic medications and testing, alleging the tests were necessary for the safe and effective administration of the medications. The petition detailed the primary and alternative medications, tests, and procedures in three separate tables that Dr. Vallabhaneni recommended for the respondent. The first table listed two primary medications, specifically, olanzapine and lorazepam. The second table listed two alternative medications, specifically, risperidone and clonazepam. The third table indicated that periodic blood draws and tests would be necessary to monitor the respondent's medication, electrolyte, and enzyme levels.

¶ 4 On July 29, 2015, the circuit court held a hearing on the petition. Dr. Vallabhaneni testified to the following. Dr. Vallabhaneni evaluated and then diagnosed the respondent with psychotic disorder, not otherwise specified. Because the respondent had a long history of recurrent symptoms (i.e. , threatening and disruptive behavior), Dr. Vallabhaneni opined that the respondent's mental illness had resulted in a deterioration of his ability to function.

¶ 5 Dr. Vallabhaneni described specific occasions where the respondent had displayed threatening and disruptive behavior. While in jail for the most recent aggravated battery charge, the respondent refused medication and was placed in isolation after he threatened to physically harm inmates and staff members. After the respondent was ordered to undergo a fitness evaluation, he was found unfit to stand trial and remanded to CMHC for treatment. While at CMHC, the respondent had to be physically restrained in an isolated, quiet room on several occasions, and during one incident, he was forced to take emergency medication to control his disruptive behavior. While the respondent denied suffering from a mental illness, he had voluntarily taken the maximum recommended dose of Seroquel because he believed the medication treated anxiety. Despite taking the maximum dose of Seroquel, the respondent continued to display psychotic and paranoid behaviors. Although Dr. Vallabhaneni advised the respondent that Seroquel had been ineffective and recommended the administration of different medications, the respondent refused to consent to the administration of different medications.

¶ 6 Dr. Vallabhaneni testified that the respondent lacked the capacity to make a reasoned decision about his treatment and condition. Dr. Vallabhaneni explained that his opinions and conclusions were based on the respondent's denial of his mental illness, limited insight, and refusal to take medication and participate in a treatment intervention. Dr. Vallabhaneni stated that the respondent was provided with written documents that listed the alternatives to medication and provided detailed information about the benefits and potential side effects of each medication. When asked if, in his medical opinion, the benefits of the listed treatments and medications far outweighed any harm that could arise from the medications, Dr. Vallabhaneni responded, "Yes, they do." After Dr. Vallabhaneni discussed the purpose and potential side effects of each medication, the State asked Dr. Vallabhaneni whether he sought the "ability to test so [the psychotropic medications] may be safely administered. Since [the respondent is] not on the medications yet, you are going to establish a blood level?" Dr. Vallabhaneni responded, "Yes." The State then inquired whether Dr. Vallabhaneni had established a blood level, since the respondent had been taking Seroquel, and Dr. Vallabhaneni replied, "That is correct."

¶ 7 The State admitted the petition into evidence without objection. The written information that was provided to the respondent was also attached to the petition. The written information indicated that blood tests "may be needed to check for unwanted effects" from olanzapine and that "lab tests" would be conducted at regular visits to check the effects of each medication.

¶ 8 The respondent testified to the following details. He was on permanent physical disability because he had suffered a leg injury in April 2014. The respondent's leg injury had been treated by a medical doctor, as well as several surgeons. The respondent explained that his medical doctors and surgeons had advised him against taking the medications.

¶ 9 After considering the testimony and exhibits introduced at the hearing, the circuit court entered an order for the administration of authorized involuntary treatment, finding the respondent had a serious mental illness, had exhibited deterioration in his ability to function, and had exhibited threatening behavior. The court's order listed olanzapine and lorazepam as the respondent's primary medications and risperidone and clonazepam as the respondent's alternative medications. Additionally, the court authorized periodic blood draws and tests to monitor medication, electrolyte, and enzyme levels, finding the tests and procedures essential for the safe and effective administration of treatment. The order specified that the treatment would be administered by "N. Vallabhaneni, M.D., Psychiatrist at Chester Mental Health Center." The order also stated that the respondent's alternative psychiatrists would be "the psychiatric staff at Chester Mental Health Center including: T. Casey; R. Gupta; P. Tiongson; M. Reddy; M. Galioto; and R. Maitra." This appeal followed.

¶ 10 II. Analysis

¶ 11 On appeal, the respondent raises three issues in support of his contention that the circuit court's order authorizing the administration of involuntary treatment and testing should be reversed. First, the respondent argues that the State failed to prove by clear and convincing evidence that the tests and other procedures ordered by the court were essential for the safe and effective administration of treatment. Second, the respondent argues that the court's order designating specific persons to administer the medication was unsupported by the evidence. Third, the respondent argues he was denied effective assistance of counsel.

¶ 12 Before addressing the merits of the respondent's arguments, we must first address the issue of mootness. "An appeal is considered moot where it presents no actual controversy or where the issues involved in the trial court no longer exist because intervening events have rendered it impossible for the reviewing court to grant effectual relief to the complaining party." In re J.T. , 221 Ill. 2d 338, 349-50, 303 Ill.Dec. 103, 851 N.E.2d 1 (2006). The present appeal is technically moot because the 90-day period for the administration of the psychotropic medications authorized by the circuit court's order, which was entered on July 29, 2015, has expired. See In re Donald L. , 2014 IL App (2d) 130044, ¶ 17, 378 Ill.Dec. 744, 4 N.E.3d 1116.

¶ 13 Reviewing courts generally do not decide moot questions, render advisory opinions, or consider issues where the result will not be affected regardless of how those issues are decided. In re Barbara H. , 183 Ill. 2d 482, 491, 234 Ill.Dec. 215, 702 N.E.2d 555 (1998). A reviewing court will review a technically moot question, however, when the question falls within one of the three recognized exceptions to the mootness doctrine: (1) the public-interest exception, (2) the capable-of-repetition exception, and (3) the collateral-consequences exception. Donald L. , 2014 IL App (2d) 130044, ¶ 19, 378 Ill.Dec. 744, 4 N.E.3d 1116. Although no "general exception" to the mootness doctrine exists for mental health cases, most appeals will usually fall within one of the three established exceptions. In re Alfred H.H. , 233 Ill. 2d 345, 355, 331 Ill.Dec. 1, 910 N.E.2d 74 (2009). The determination whether a case falls within a particular exception must be made on a case-by-case basis. Id.

¶ 14 While the respondent contends that all three of the exceptions to the mootness doctrine apply, we need not address his arguments regarding the public-interest and collateral-consequences exceptions because we agree that the capable-of-repetition exception applies. That exception applies when the respondent shows that (1) the challenged action is of such short duration that it cannot be fully litigated prior to its cessation and (2) there is a reasonable expectation that the same complaining party would be subjected to the same action again. Id. at 358, 331 Ill.Dec. 1, 910 N.E.2d 74. Although the challenged action need not be identical under the second prong of the exception, the action "must have a substantial enough relation that the resolution of the issue in the present case would be likely to affect a future case involving [the] respondent." Id. at 359, 331 Ill.Dec. 1, 910 N.E.2d 74. We conclude that the capable-of-repetition exception applies, here, due to the short duration of involuntary treatment orders and the respondent's ongoing mental health issues and unwillingness to take medication. See In re Joseph M. , 405 Ill. App. 3d 1167, 1175, 345 Ill.Dec. 779, 939 N.E.2d 959 (2010). In so concluding, we note that the respondent raises sufficiency-of-the-evidence claims that may have no bearing on future proceedings. We will, however, reach the merits of the respondent's appeal because his claims also involve issues of statutory compliance that could affect the outcome of a future case.

¶ 15 Turning to the merits, the respondent first argues that the circuit court's order violated both his due process rights and the requirements set forth in the Code because its finding that he was subject to involuntary administration of psychotropic medication was against the manifest weight of the evidence. Specifically, he asserts that the State failed to prove, by clear and convincing evidence, that the tests and other procedures that the court ordered were essential for the safe and effective administration of the medication.

¶ 16 Because the involuntary administration of psychotropic medications to individuals alleged to suffer from mental illness implicates constitutionally protected liberty interests ( In re C.E. , 161 Ill. 2d 200, 213, 204 Ill.Dec. 121, 641 N.E.2d 345 (1994) ; In re Bobby F. , 2012 IL App (5th) 110214, ¶ 14, 361 Ill.Dec. 25, 970 N.E.2d 25 ), the Code sets forth certain procedural safeguards to protect these substantial liberty interests. In re John R. , 339 Ill. App. 3d 778, 785, 275 Ill.Dec. 119, 792 N.E.2d 350 (2003). Strict compliance with the procedural safeguards is required due to the liberty interests involved. Id. at 783-84, 275 Ill.Dec. 119, 792 N.E.2d 350. When a mental health patient exercises his or her right to refuse medication or lacks the capacity to make a reasoned decision about the treatment, the treatment may be administered only pursuant to section 2-107 or 2-107.1 of the Code. 405 ILCS 5/2-102(a-5) (West 2014). Pursuant to section 2-107.1(a-5), a person may petition the circuit court for an order authorizing the involuntary administration of psychotropic medication to a mental health patient. A petitioner seeking authorization for testing and other procedures must prove, by clear and convincing evidence, "that such testing and procedures are essential for the safe and effective administration of the treatment." Id. § 2-107.1(a-5)(4)(G).

¶ 17 While this standard may be satisfied through the presentation of expert testimony, expert opinions alone are insufficient and must be supported with specific facts establishing the bases for those opinions. In re David S. , 386 Ill. App. 3d 878, 883, 326 Ill.Dec. 132, 899 N.E.2d 349 (2008). The State is required to present "specific testimony about the requested testing and procedures." In re Steven T. , 2014 IL App (5th) 130328, ¶ 16, 385 Ill.Dec. 284, 18 N.E.3d 284 (citing David S. , 386 Ill. App. 3d at 883, 326 Ill.Dec. 132, 899 N.E.2d 349 ). The testifying psychiatrist's affirmation that the testing was requested to ensure the safe and effective administration of the medication does not satisfy the Code's requirement of clear and convincing evidence. In re Larry B. , 394 Ill. App. 3d 470, 478, 333 Ill.Dec. 431, 914 N.E.2d 1243 (2009).

¶ 18 Whether there was substantial compliance with a statutory provision is a question of law, which we review de novo . In re Tiffany W. , 2012 IL App (1st) 102492-B, ¶ 10, 365 Ill.Dec. 84, 977 N.E.2d 1183. A reviewing court will not reverse an order authorizing the involuntary administration of psychotropic medication unless the circuit court's order is contrary to the manifest weight of the evidence. John R. , 339 Ill. App. 3d at 781, 275 Ill.Dec. 119, 792 N.E.2d 350. A ruling is against the manifest weight of the evidence only when an opposite conclusion is clearly apparent or when the findings appear to be unreasonable, arbitrary, or not based on the evidence. In re Louis S. , 361 Ill. App. 3d 774, 779, 297 Ill.Dec. 739, 838 N.E.2d 226 (2005).

¶ 19 Here, the State's presentation of Dr. Vallabhaneni's testimony at the hearing was insufficient to meet the clear and convincing standard set forth in the Code. Dr. Vallabhaneni did not testify that blood tests were essential for the respondent's treatment. Although Dr. Vallabhaneni discussed the potential negative side effects associated with each medication, he failed to relate the potential side effects to the testing requested in the petition. In addition, Dr. Vallabhaneni offered no specific testimony regarding the procedure, or frequency, of the requested blood draws and tests. Instead, he merely provided an affirmative response when asked whether he sought the "ability to test so [the psychotropic medications] may be safely administered. Since [the respondent is] not on the medications yet, you are going to establish a blood level?" As such, Dr. Vallabhaneni's affirmation did not constitute clear and convincing evidence that the testing and procedures were essential for the safe and effective administration of the respondent's treatment.

¶ 20 While conceding that Dr. Vallabhaneni's testimony alone was insufficient, the State points out that the petition and group exhibit were also admitted into evidence at the hearing. The petition specifically sought authorization for periodic blood draws and tests to monitor the medication, electrolyte, and enzyme levels. While the petition stated that the requested tests and procedures were essential for the safe and effective administration of the respondent's treatment, the State failed to present any evidence in support of this conclusion. In fact, the State's group exhibit, which included the written information that was provided to the respondent detailing each medication listed in the petition, indicated only that blood tests "may be needed to check for unwanted effects" of olanzapine. (Emphasis added.) The written information pertaining to the other medications indicated only that "lab tests" would be conducted at regular visits to check the effects of each of the medications. Without more than a mere conclusion that the requested testing and procedures were essential, the State failed to provide the clear and convincing evidence required by the Code to administer the requested tests without the respondent's consent. See Steven T. , 2014 IL App (5th) 130328, ¶ 17, 385 Ill.Dec. 284, 18 N.E.3d 284. Thus, the circuit court's finding that the periodic blood draws and tests were essential for the safe and effective administration of treatment was against the manifest weight of the evidence. Although reversal of the court's order is warranted on this basis alone, we will address the merits of the respondent's second argument because it is likely that our resolution of the issue may affect a future case involving the respondent.

¶ 21 In his second argument, the respondent contends that the circuit court's order failed to comply with the Code because its designation of specific persons authorized to administer treatment was not supported by the evidence presented by the State at the hearing. Section 2-107.1(a-5)(6) of the Code sets forth certain requirements pertaining to court orders authorizing the involuntary administration of psychotropic medications. 405 ILCS 5/2-107.1(a-5)(6) (West 2014). Specifically, section 2-107.1(a-5)(6) states that the order "shall designate the persons authorized to administer the treatment under the standards and procedures" set forth in subsection (a-5). Id. A court's failure to name specific individuals who are authorized to administer the medication in the order warrants reversal. In re Cynthia S. , 326 Ill. App. 3d 65, 69, 259 Ill.Dec. 959, 759 N.E.2d 1020 (2001). Whether there was substantial compliance with a statutory provision is a question of law, which we review de novo . Steven T. , 2014 IL App (5th) 130328, ¶ 13, 385 Ill.Dec. 284, 18 N.E.3d 284 (citing Tiffany W. , 2012 IL App (1st) 102492-B, ¶ 10, 365 Ill.Dec. 84, 977 N.E.2d 1183 ). When reviewing the sufficiency-of-the-evidence claim, we will reverse the court's order only if it is against the manifest weight of the evidence. In re Cathy M. , 326 Ill. App. 3d 335, 341, 260 Ill.Dec. 162, 760 N.E.2d 579 (2001).

¶ 22 Here, it is undisputed that the circuit court's order named specific persons authorized to administer psychotropic medications to the respondent. In particular, the order stated that the treatment would be administered by "N. Vallabhaneni, M.D., Psychiatrist at Chester Mental Health Center." The court's order also provided that the respondent's alternative psychiatrists would be the "psychiatric staff at Chester Mental Health Center," including the following: T. Casey, M.D.; R. Gupta, M.D.; P. Tiongson, M.D.; M. Reddy, M.D.; M. Galioto; and R. Maitra, M.D. The parties' dispute, instead, centers on what evidence the State is required to present at the hearing to support the court's order authorizing these persons to administer the respondent's treatment.

¶ 23 While this court is aware of no case precedent specifically addressing this issue, we note that our colleagues in the Fourth District addressed a similar issue in In re A.W. , 381 Ill. App. 3d 950, 320 Ill.Dec. 687, 887 N.E.2d 831 (2008). In considering the requirement that the circuit court's order "specify the medications and the anticipated range of dosages that have been authorized" ( 405 ILCS 5/2-107.1(a-5)(6) ), the Fourth District acknowledged that the Code does not explicitly require the State to establish by clear and convincing evidence the proposed medications and the anticipated range of dosages. A.W. , 381 Ill. App. 3d at 958, 320 Ill.Dec. 687, 887 N.E.2d 831. The Fourth District noted, however, that the type of medication is a necessary component of section 2-107.1(a-5)(4)(D) and that courts have usually required some evidence of the medications sought to be administered. Id. at 958-59, 320 Ill.Dec. 687, 887 N.E.2d 831. Thus, the Fourth District held that the circuit court's order must be supported by evidence presented by the State "as to the anticipated range of dosages of the proposed psychotropic medication." Id. at 959, 320 Ill.Dec. 687, 887 N.E.2d 831. In so holding, the Fourth District rejected the State's argument that the list of anticipated dosages contained in the petition was sufficient where the circuit court did not take judicial notice of the anticipated dosages listed in the petition, the petition was not admitted into evidence for the purpose of establishing the anticipated dosages, and there was no testimony that the proposed psychotropic medications were requested in the dosages listed in the petition. Id.

¶ 24 Similarly, here, although the Code does not explicitly require the State to present clear and convincing evidence as to the individuals authorized to administer the treatment, we conclude that the State is required to present evidence as to each person who will administer the involuntary treatment. In so concluding, we note that the Code requires that recipients of mental health services "be provided with adequate and humane care and services in the least restrictive environment, pursuant to an individual services plan" ( 405 ILCS 5/2-102(a) (West 2014) ), and provides that "[a] qualified professional shall be responsible for overseeing the implementation of such plan" (id. § 2-102(a-5) ). In addition, section 2-107.1(f) requires "annual trainings for physicians and registered nurses working in State-operated mental health facilities on the appropriate use of psychotropic medication" and the standards for using such medications. Id. § 2-107.1(f). Thus, in our view, the circuit court's order must be supported by evidence presented by the State to "ensure that only a limited number of designated-and presumably well-trained-individuals will be able to administer these powerful drugs, pursuant to a court order, to an unwilling recipient." In re Miller , 301 Ill. App. 3d 1060, 1072, 235 Ill.Dec. 531, 705 N.E.2d 144 (1998).

¶ 25 Based on our review of the evidence, we conclude that the circuit court's order, authorizing Dr. Vallabhaneni to administer treatment to the respondent, was supported by Dr. Vallabhaneni's testimony. In particular, Dr. Vallabhaneni testified that he was the respondent's treating physician and that he sought to administer the medications and dosages listed in the petition. The State, however, failed to present sufficient evidence to support the court's order authorizing the alternative psychiatrists to administer treatment. As in A.W. , the State, here, argues that the court's order was supported by the petition, which provided a detailed list of the respondent's alternative psychiatrists. While the alternative psychiatrists were individually named in the petition, the court neither took judicial notice of the individuals named in the petition nor admitted the petition into evidence for the purpose of establishing that those individuals would be authorized to administer the respondent's treatment. In addition, Dr. Vallabhaneni offered no testimony regarding the alternative psychiatrists listed in the petition. Accordingly, the court should not have authorized those persons to administer the respondent's treatment without supporting evidence.

¶ 26 The respondent also argues he was denied effective assistance of counsel. Because of our resolution of the preceding issues and our determination that the order granting the petition must be reversed, we need not consider the respondent's allegations regarding his counsel's representation. See Larry B. , 394 Ill. App. 3d at 479, 333 Ill.Dec. 431, 914 N.E.2d 1243.

¶ 27 III. Conclusion

¶ 28 For the foregoing reasons, the order of the circuit court of Randolph County authorizing the involuntary administration of psychotropic medications and testing is hereby reversed.

¶ 29 Reversed.

Justice Moore concurred in the judgment and opinion.

Justice Cates dissented, with opinion.

¶ 31 Based upon the circumstances reflected herein, I believe this case is moot, and this appeal should be dismissed. Inasmuch as my colleagues disagreed, and decided the merits of the appeal, I dissent. In my view, there was sufficient evidence to support the circuit court's order authorizing the involuntary administration of psychotropic medication, as allowed by the Mental Health and Developmental Disabilities Code ( 405 ILCS 5/2-107.1(a-5) (West 2014) ).


author: Slaughter, Justice.

text:
    J.W., Appellant (Defendant), v. STATE of Indiana, Appellee (Plaintiff).
    Supreme Court Case No. 19S-JV-12
    Supreme Court of Indiana.
    Argued: April 20, 2018 Decided: January 9, 2019
    ATTORNEY FOR APPELLANT: Cara Schaefer Wieneke, Wieneke Law Office, LLC, Brooklyn, Indiana
    ATTORNEYS FOR APPELLEE: Curtis T. Hill, Jr., Attorney General of Indiana, J.T. Whitehead, Deputy Attorney General, Indianapolis, Indiana
    On Petition to Transfer from the Indiana Court of Appeals, No. 33A04-1708-JV-1934
   Slaughter, Justice.

We held in Tumulty v. State , 666 N.E.2d 394 (Ind. 1996), that an adult criminal defendant cannot challenge the validity of his guilty plea on direct appeal. He must, instead, pursue post-conviction relief and raise in that proceeding any claims of error concerning his plea.

At issue here is whether to extend Tumulty to the juvenile-law counterpart to a criminal plea-namely, an agreed delinquency adjudication. We hold that juveniles cannot immediately challenge on direct appeal any errors concerning their agreed adjudication. But because juveniles are not eligible for post-conviction relief, before pursuing their constitutional right to appeal, they must first assert any claims of error concerning their agreed judgment in a request for post-judgment relief filed with the juvenile court. Juveniles who seek that relief in post-judgment proceedings have a statutory right to counsel under Indiana Code article 31-32.

Factual and Procedural History

J.W., a juvenile, has a significant history with the juvenile-justice system dating to his early teens. In 2013, J.W. was adjudicated a delinquent at age 13 for committing criminal mischief, a class B felony if committed by an adult. While on probation, he assaulted a student at school and possessed weapons on several occasions. He was placed in foster care but then was relocated to secure detention because he stole from his foster family, ingested rubbing alcohol to become intoxicated, and possessed a handgun. Undeterred, he continued with various criminal behaviors until his probation was terminated in 2015 and he was placed with the Department of Correction. In 2017, he was released from the Department and reportedly moved back into his parents' home. But just a week later, he fled and was reported as a runaway.

In July 2017, the New Castle Police Department responded to a 911 call that a young man was threatening suicide. When police arrived, J.W. was running through a mobile-home park and heeded the officer's command to surrender. After he was detained, J.W. identified himself to police as his older brother M.W. and stated falsely that his birthdate was October 4, 1998, which would have made him 18 years old. The responding officer also spoke with J.W.'s girlfriend, who had called 911. She explained that J.W. became upset after she asked him to leave. He started punching himself in the face and chin, grabbed a kitchen knife, put it to his throat, and threatened suicide. Because of J.W.'s self-inflicted injuries and his suicide threat, the officer called for paramedics to administer treatment and to transport J.W. to the local hospital emergency room.

After J.W. was admitted to the hospital under the name of M.W., hospital staff received a phone call from a person identifying herself as J.W.'s sister. The nurses on duty told the caller they had no patient by that name, but later learned that J.W. was a juvenile and had provided the wrong name. Once medical staff learned that J.W. was not his 18-year old brother, they contacted J.W.'s parents to obtain consent to treat him. The parents consented and spoke with the officer when they got to the hospital. Upon learning of J.W.'s real age and identity, the officer contacted a Henry County probation officer who had previously encountered J.W. in the juvenile system. The police officer also arrested J.W. as a juvenile runaway and for false informing.

Both the police and probation officers testified at J.W.'s detention hearing in July 2017. The probation officer recommended that J.W. remain in secure detention, based on his failure to benefit from less restrictive services. The court adopted the recommendation and continued J.W.'s placement in secure detention. The following day, the court issued an order finding probable cause that J.W. was delinquent and that detention was "essential to protect the child or the community".

In August 2017, the court held an initial hearing that J.W., his counsel, and his mother attended. Counsel advised that the State and J.W. had agreed to settle the case and represented that J.W. would admit to Count 1, class B misdemeanor false informing if committed by an adult, Ind. Code §§ 35-44.l-2-3(d)(1), 31-37-1-2, in exchange for the State's dismissing Count 2, leaving home without the permission of a parent, guardian, or custodian, id. §§ 31-37-1-2, 31-37-2-2. Counsel also advised that J.W. would waive a pre-dispositional report and would accept placement in the Department of Correction.

During his colloquy with the court, J.W. admitted to providing a false name and birthdate at the hospital. The trial court accepted J.W.'s admission as made freely and voluntarily, found a factual basis for accepting the admission on Count 1, and the State, consistent with the parties' agreement, moved to dismiss Count 2. Because J.W. waived a pre-dispositional report, the court proceeded to disposition and ordered J.W. committed to the Department.

Despite the parties' consent judgment, entered in accordance with their settlement, J.W. appealed, arguing that his agreed delinquency judgment should be set aside for four reasons. First , he said, the court did not provide him with the statutory advisement of rights required by Indiana Code section 31-37-12-5 ; did not determine whether he had knowingly and voluntarily waived his rights; and did not provide him and his parents with the required opportunity to be heard during the proceedings. Second , the facts he admitted to during his colloquy do not constitute an offense. Third , the trial court abused its discretion in committing him to the Department of Correction without determining that he knowingly and intentionally entered into the agreed judgment and without providing him with an opportunity to be heard. Fourth , his counsel was ineffective for all the reasons outlined in the first three arguments.

Following its own precedent, the court of appeals dismissed J.W.'s appeal, concluding that "the appropriate remedy for relief that a juvenile defendant must seek is through the filing of a Trial Rule 60 motion". J.W. v. State , 95 N.E.3d 208, 2017 WL 6273184, at *3 (Ind. Ct. App. 2017) (quoting favorably from J.H. v. State , 809 N.E.2d 456, 458 (Ind. Ct. App. 2004), trans. denied). And the court remanded the case to the trial court to allow J.W. to file a motion for relief from the judgment adjudicating him a delinquent.

Standard of Review

The procedural path a party must pursue to obtain appellate review is a legal question we review de novo.

Discussion and Decision

Trial Rule 60(B) respects the presumptive finality of a juvenile's agreed delinquency judgment while providing an efficient mechanism for an aggrieved party to vindicate claims that his adverse judgment was obtained unlawfully.

A. Our legal system respects litigants' ability to settle cases and supports the finality of agreed judgments.

Indiana's judicial policy strongly favors agreements to settle litigation disputes. Georgos v. Jackson , 790 N.E.2d 448, 453 (Ind. 2003). Our judicial system counts on such settlements to occur in the lion's share of both civil and criminal cases. Otherwise, with more than a million cases filed in our trial courts each year, the system would grind to a halt.

For example, parties to civil suits may enter a consent judgment, thus contractually settling a dispute over any matter that may be the subject of litigation. State v. Huebner , 230 Ind. 461, 467, 104 N.E.2d 385, 387 (1952). After a court enters an agreed civil judgment, it cannot modify the judgment. Ryan v. Ryan , 972 N.E.2d 359, 362 (Ind. 2012). Once entered by a trial court, a consent judgment has the same "dignity" and "conclusiveness" as an "adjudication between the parties". Huebner , 230 Ind. at 468, 104 N.E.2d at 388. And if a party fails to perform its obligations under a consent judgment, the aggrieved party may obtain a decree enforcing the judgment from the court that approved it. Fackler v. Powell , 839 N.E.2d 165, 167 (Ind. 2005) (explaining that absent parties' contrary agreement, court accepting divorce property settlement as part of dissolution decree retains jurisdiction to interpret and enforce settlement's terms).

In criminal cases, the same principles apply to encourage parties to enter into-and for courts to enforce violations of-plea agreements. A plea agreement is a contract, and its terms are binding on the defendant, the State, and the trial court. Pannarale v. State , 638 N.E.2d 1247, 1248 (Ind. 1994). See also I.C. § 35-35-3-3(e). Choices have consequences. And as we held in Tumulty , one consequence of a defendant's choice to plead guilty and allow judgment to be entered against him is that he is foreclosed from challenging his conviction on direct appeal.

[A criminal] plea as a legal act brings to a close the dispute between the parties, much as settling civil parties do by submitting an agreed judgment. To permit appeal by settling parties would, of course, make settlements difficult to achieve in any litigation.

Tumulty , 666 N.E.2d at 396.

What we have said about agreed dispositions in the civil and criminal sphere is no less true of such dispositions in juvenile cases-which are, after all, civil proceedings. Bible v. State , 253 Ind. 373, 381, 254 N.E.2d 319, 322 (1970). The same concerns of finality and freedom of the parties to settle their disputes counsel in favor of encouraging and enforcing juvenile agreements, too-including the delinquency agreement at issue here. As with other consent judgments, an agreed delinquency judgment limits the juvenile's ability to challenge the agreed judgment on direct appeal. As discussed next, the juvenile must instead pursue another avenue for obtaining relief-one that begins in the trial court.

B. Challenges to settlement agreements and agreed judgments often require additional proceedings before a trial court.

We encourage settlements for all the reasons stated. But if an agreement is legally problematic, the aggrieved party will have recourse to challenge its validity and enforceability. The issue is not whether legal recourse exists but what procedure the litigant must pursue to obtain relief.

Grounds for challenging consent judgments, as with any contract, include coercion, duress, undue influence, misrepresentation, fraud, and lack of consent. See, e.g., Indianapolis, D. & W. Ry. Co. v. Sands , 133 Ind. 433, 435, 32 N.E. 722, 724 (1892). After a trial court has entered a consent judgment, "no party to such agreement can or ought to be permitted to have the decree modified or changed without showing some fraud or mistake by which he was induced to enter into the agreement ... or without showing some valid reason why he should be released from it." Id.

Challenging a consent judgment often requires the aggrieved party to develop a factual record that he did not enter into the agreement freely and with informed consent. For example, we have long held that whether a contracting party was defrauded is a question of fact for the trial court. Prop. Owners, Inc. v. City of Anderson , 231 Ind. 78, 89, 107 N.E.2d 3, 8 (1952). Similarly, when a party claims he executed a contract under duress, "the ultimate fact to be determined is whether or not the purported victim was deprived of the free exercise of his own will." Raymundo v. Hammond Clinic Ass'n , 449 N.E.2d 276, 283 (Ind. 1983) (original emphasis omitted). Thus, once a trial court enters a consent judgment, the party attacking it must typically initiate further proceedings in the trial court to establish a factual basis for its alleged invalidity.

Indiana's post-conviction rules also require a separate, collateral proceeding at which a trial court hears evidence, finds facts, and issues legal conclusions. Tumulty , 666 N.E.2d at 396 (citing Ind. Post-Conviction Rule 1 ); Crain v. State , 261 Ind. 272, 273, 301 N.E.2d 751, 751-52 (1973). After conducting the hearing, the trial court must "make specific findings of facts[ ] and conclusions of law on all issues presented" in the post-conviction petition. P-C. R. 1(6). See generally Bethea v. State , 983 N.E.2d 1134, 1138 (Ind. 2013).

Thus, in both the civil and criminal contexts, challenging an agreed judgment generally requires a trial court to conduct additional fact-finding in connection with the formation of the parties' agreement. And that is no less true of challenges to agreed judgments in juvenile cases.

C. Trial Rule 60(B) provides a fitting procedural mechanism for juveniles to challenge the validity of an agreed adverse judgment.

As mentioned, juveniles must have a suitable procedural vehicle for challenging an allegedly unlawful adjudication agreement, and that includes developing an adequate factual record to support their claims. Post-conviction proceedings will not suffice because they apply only to adult criminal convictions. Jordan v. State , 512 N.E.2d 407, 408 (1987). We hold that Trial Rule 60 is an appropriate avenue through which a juvenile must raise any and all claims premised on the illegality of an agreed delinquency adjudication. Under Rule 60, "the court shall hear any pertinent evidence, allow new parties to be served with summons, allow discovery, [and] grant relief". Ind. Trial Rule 60(D). And after the trial court has ruled, a party aggrieved by the post-judgment ruling can then appeal. T.R. 60(C).

J.W. responds that he does not need a post-judgment forum for developing a further factual record. He says the existing trial-court record is enough to establish his entitlement to relief on two of his claims-that his trial counsel was ineffective, and that the trial court's disposition order was an abuse of discretion. We express no opinion on the merits of any of J.W.'s claims, including the two claims he says are ripe for appellate disposition.

That is because the rule we announce today is a bright-line rule. A juvenile's claim that his agreed delinquency adjudication is unlawful, along with any claim premised on the agreement's illegality, cannot be raised on direct appeal. Such claims must first be brought in the juvenile court in a post-judgment motion under Rule 60. Moreover, in the interest of judicial economy, if a juvenile's direct appeal includes any claim subject to our extended Tumulty rule, the entire appeal shall be dismissed without prejudice so the so-called " Tumulty claims" can receive a full airing in the juvenile court. Only after the juvenile court has resolved the Tumulty claims in a post-judgment proceeding can the juvenile proceed on appeal with all his claims.

The virtue of our rule is its simplicity and ease of application. It guarantees juveniles an avenue for challenging the legality of an adjudication agreement. It allows the juvenile court the first opportunity to correct errors expeditiously where appropriate. And it enables juveniles to develop an adequate factual record where necessary. We acknowledge that our rule's virtue-its simplicity and ease of application-may also be its vice. Its one-size-fits-all approach may be overinclusive, as J.W. argues here, in that its sweeping scope may include claims for which the factual record is already sufficiently developed. But we conclude the rule's likely benefits in simplicity and overall judicial economy outweigh its costs.

D. Juveniles retain the right to counsel to seek post-judgment relief challenging an agreed delinquency adjudication.

Finally, a juvenile who challenges the validity of his consent judgment through a post-judgment motion is entitled to legal representation. Our legislature has codified the right to counsel in juvenile proceedings when a child is charged with a delinquent act, I.C. §§ 31-32-2-2(1), 31-32-4-1(1), and "in any other proceeding" at the court's discretion, id. § 31-32-4-2(b). We hold that the statutory right to counsel extends to the Tumulty -type post-judgment proceedings contemplated here under Trial Rule 60(B), in which a juvenile asserts one or more claims premised on the allegation that his consent judgment was obtained unlawfully.

Conclusion

For these reasons, we grant transfer and hold that before J.W. may pursue an appeal, he must first seek relief from the trial court under Trial Rule 60(B). J.W.'s failure to follow this procedure means his appeal was premature. We thus dismiss the appeal without prejudice and remand to the trial court for further proceedings not inconsistent with this opinion. The time J.W. spent litigating this appeal shall not count against him for purposes of evaluating whether any forthcoming post-judgment motion is filed timely.

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


author: Per curiam.

text:
    Brittany Erin HOAK, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
    Supreme Court Case No. 19S-CR-17
    Supreme Court of Indiana.
    Decided: January 11, 2019
    ATTORNEY FOR APPELLANT: A. David Hutson, Hutson Legal, Jeffersonville, Indiana
    ATTORNEYS FOR APPELLEE: Curtis T. Hill, Jr., Attorney General of Indiana, Angela N. Sanchez, Deputy Attorney General, Indianapolis, Indiana
    On Petition to Transfer from the Indiana Court of Appeals, No. 18A-CR-1094
    Opinion
   Per curiam.

In August 2014, Brittany Hoak pleaded guilty to Class B felony possession of methamphetamine in case no. 10C02-1403-FA-26 (FA-26). She was sentenced to 10 years imprisonment, four of which were suspended to probation. She began her term of probation in May 2017.

Six months later, Hoak was charged with Level 5 felony possession of methamphetamine, Level 6 felony possession of methamphetamine, and Class C misdemeanor possession of paraphernalia in case no. 10C02-1711-F5-300 (F5-300). The State soon filed a petition to revoke Hoak's probation.

Hoak pleaded guilty to the Level 5 felony in F5-300 and admitted to violating her probation in FA-26. The trial court revoked Hoak's probation and imposed her remaining suspended sentence of 294 days in FA-26; it also sentenced her to three years of incarceration in F5-300.

In a consolidated appeal, the Court of Appeals affirmed. Hoak v. State , No. 18A-CR-1094, 2018 WL 4782276 (table) (Ind. Ct. App. Oct. 4, 2018). The Court of Appeals noted that despite Hoak's multiple drug-related contacts with the criminal justice system over many years, "she has yet to receive court-ordered substance abuse treatment." Id. at *1. But ultimately it denied her request for sentence revision under Indiana Appellate Rule 7(B).

Even when a trial court imposes a sentence within its discretion, the Indiana Constitution authorizes independent appellate review and revision of this sentencing decision. See Ind. Const. art. 7, §§ 4, 6 ; Eckelbarger v. State, 51 N.E.3d 169 (Ind. 2016). Indiana appellate courts may revise a sentence if "after due consideration of the trial court's decision" they find "the sentence is inappropriate in light of the nature of the offense and the character of the offender." Ind. Appellate Rule 7(B).

Having reviewed the matter, the Court, by majority vote, grants transfer and remands with instructions to determine whether Hoak is eligible for substance abuse treatment in a Community Corrections placement; and if she is eligible, to order half of her sentence to be executed in Community Corrections. In all other respects, we summarily affirm the Court of Appeals decision. See Ind. Appellate Rule 58(A).

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

Massa and Slaughter, JJ., dissent, believing that transfer should be denied.


text:
    In the MATTER OF the Honorable Geoff L. ROBISON, New Haven City Court
    Supreme Court Case No. 18S-JD-466
    Supreme Court of Indiana.
    Filed January 15, 2019
   Published Order Dismissing Matter

On September 21, 2018, the Indiana Commission on Judicial Qualifications filed a "Notice of the Institution of Formal Proceedings and Statement of Charges"

against the Respondent, Geoff L. Robison. Respondent timely filed an Answer, and a panel of Masters was appointed on November 1. The matter is presently pending before this Court, with a hearing scheduled to commence on January 24, 2019.

On December 31, 2018, the parties tendered a "Conditional Agreement and Petition to Dismiss Matter as Moot." Having reviewed the Conditional Agreement, the Court ACCEPTS its facts and the parties' Agreement. A copy of the Conditional Agreement is attached to and is made a part of this order. For the reasons stated below, the Court elects to dismiss this matter as moot.

Respondent, at the time the Complaint was filed, was the judge of the New Haven City Court. Respondent resigned as judge of the New Haven City Court effective December 26, 2018. That same day, the New Haven City Council unanimously voted to close the New Haven City Court, effective December 31, 2018. Continued litigation of this matter would be an inefficient use of limited judicial resources. See In re Chapala, 902 N.E.2d 218, 219 (Ind. 2009).

Accordingly, this matter is hereby DISMISSED. The Masters appointed in this case are discharged, and we thank them for their diligent service in this matter. An opinion of the Court explaining this disposition will follow.

All Justices concur.

Attachment

In the Supreme Court of Indiana IN THE MATTER OF THE HONORABLE Case No. 18S-JD-466 GEOFFREY L. ROBISON NEW HAVEN CITY COURT

PARTIES' CONDITIONAL AGREEMENT AND PETITION TO DISMISS MATTER AS MOOT

The Indiana Commission on Judicial Qualifications, by counsel and with the Chief Justice not participating, and Respondent Judge Geoffrey L. Robison, in person and by counsel, submit their Statement of Circumstances and Conditional Agreement, and petition the Court to dismiss this matter as moot for the following reasons:

STIPULATED FACTS
1. On September 21, 2018, the Indiana Commission on Judicial Qualifications filed its Notice of the Institution of Formal Proceedings and Statement of Charges. (Exhibit A).
2. On October 11, 2018, Respondent elected to file a permissive Answer to the Statement of Charges.
3. At all times pertinent to the charges. Respondent was Judge of the New Haven City Court.
4. Respondent is not an attorney.
5. On December 26, 2018, Respondent resigned as Judge of the New Haven City Court.
6. Also, on December 26, 2018, the New Haven City Council voted to close the New Haven City Court, effective December 31, 2018.
CONDITIONAL AGREEMENT
1. Although, as a non-attorney, Respondent is not eligible for future judicial service, given current Indiana law, the parties agree that Respondent is prohibited from future judicial service even if the legislature changes the law in the future to allow non-attorneys to serve as city or town court judges or other types of judges.

PETITION TO DISMISS AS MOOT

Given Respondent's resignation and agreement to perform no judicial duties in the future, the parties submit that the effect of the most likely sanctions that the Court could impose if it were to find Respondent culpable of all charges has already been achieved (See Ind. Admission and Discipline Rule 25(IV), the parties respectfully submit that the matter is effectively moot and the continued litigation of this matter an inefficient use of limited judicial resources. Further, given the closure of the New Haven City Court, it is also an inefficient use of judicial resources to litigate this matter to educate a new judge about the proper administrative procedures to employ on processing of infraction cases.

WHEREFORE, the parties, with the Chief Justice not participating, respectfully ask the Court to adopt their stipulated facts, to accept the Conditional Agreement, and to grant the parties' Petition to Dismiss this Matter as Moot.

DEC. 28, 2018 DATE Judge Geoffrey L. Robison Dec. 28, 2018 DATE J. Michael Loomis Counsel for Respondent Attorney No. 10143-49 Dec. 31, 2018 DATE Adrienne L. Meiring Counsel to the Commission Attorney No. 18414-45 December 31, 2018 DATE Marcus Alan McGhee Staff Attorney to the Commission Attorney No. 34113-49


author: All Justices concur.

text:
    In the MATTER OF: Kraig A. KENWORTHY, Respondent
    Supreme Court Case No. 18S-DI-589
    Supreme Court of Indiana.
    FILED January 11, 2019
    Published Order of Interim Suspension from the Practice of Law
    The Indiana Supreme Court Disciplinary Commission has filed a "Verified Petition For Order Of Emergency Interim Suspension Pursuant To Indiana Admission And Discipline Rule 23, § 11.1(b)," requesting that Respondent be suspended immediately from the practice of law in this State pending further order of this Court or final resolution of any resulting disciplinary action, due to alleged misconduct that may cause Respondent's continued practice of law during the pendency of a disciplinary investigation or proceeding to pose a substantial threat of harm to the public, clients, potential clients, or the administration of justice.
    Respondent has not filed an answer to the petition. See Admis. Disc. R. 23 (11.1)(b)(3). Instead, Respondent has filed a "Verified Notice of Insufficient Service of Process" and an accompanying affidavit. Respondent's pleadings confirm that personal service of the Commission's verified petition was accomplished on November 30, 2018. Respondent's remaining challenges to the manner of service are without merit. See Admis. Disc. Rs. 23(11.1)(b)(2), 23(12)(c).
    Being duly advised, the Court now GRANTS the Commission's verified petition and ORDERS that Respondent be suspended from the practice of law in this State, effective immediately. Respondent is ordered to fulfill the duties of a suspended attorney under Admission and Discipline Rule 23(26). The suspension shall continue until further order of this Court or final resolution of any resulting disciplinary action.
   All Justices concur.


author: Baker, Judge.

text:
    COMPANY, Appellant, v. REVIEW BOARD OF the INDIANA DEPARTMENT OF WORKFORCE DEVELOPMENT and S.W., Appellees
    Court of Appeals Case No. 18A-EX-917
    Court of Appeals of Indiana.
    FILED November 1, 2018
    Attorney for Appellant: George C. Patrick, Crown Point, Indiana
    Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Aaron T. Craft, Deputy Attorney General, Indianapolis, Indiana
   Baker, Judge.

[1] S.W. was employed full-time by his employer (Company). When he voluntarily terminated his position, he sought unemployment benefits under Indiana's Unemployment Compensation Act (the Act). The Department of Workforce Development (DWD) awarded him benefits. Company now appeals, arguing that the Review Board erred by determining that S.W. was eligible for unemployment benefits. Finding no error, we affirm.

Facts

[2] On May 26, 2015, S.W. began working full-time for Company. Around the time of his separation, he was performing his assigned job duties as a department head. But on October 30, 2017, S.W. was placed on a thirty-day performance improvement plan, which included a list of expectations for S.W. to meet and which informed S.W. that unless he demonstrated significant improvement, he would be subject to discipline. Company claims it placed S.W. on the improvement plan because of concerns that S.W. was not sufficiently performing his job duties. While S.W. was on the improvement plan, he was not informed that his job performance did not meet the level of improvement that Company wanted.

[3] On November 30, 2017, at the end of the duration of the improvement plan, Company met with S.W., informing him that he had a choice: he could be demoted to a lower position with lower pay or he could resign. S.W. was not eligible for discharge at that time. He chose to resign.

[4] At some point, S.W. sought unemployment benefits. On January 4, 2018, a DWD claims deputy determined that S.W. had not been discharged for just cause and awarded S.W. unemployment benefits. On January 12, 2018, Company appealed the grant of benefits to the DWD's appeals division.

[5] On February 7, 2018, an administrative law judge (ALJ) conducted a hearing by telephone. During the hearing, one of Company's witnesses, who was S.W.'s supervisor and the assistant director, testified that Company placed S.W. on the performance improvement plan because 1) he was not communicating daily with his supervisors or training his staff as directed; 2) he was absent from his work area several times a week; 3) he did not provide documentation of conversations he had with supervisors or staff, including documentation about a shift change for one employee; and 4) he changed his shift without notifying his supervisors. The supervisor also testified that Company was not aware that S.W. had not created training materials or conducted any trainings until he was already on the improvement plan. The supervisor then testified that S.W. did not successfully complete the plan because 1) he did not meet deadlines and 2) he was not a cooperative or communicative employee. The supervisor was unable to identify a specific deadline that S.W. had missed and was inconsistent in describing when he had asked S.W. to submit certain materials.

[6] S.W. testified that his job required him to be in different departments; that his supervisor bore him ill will and was creating a hostile work environment, leading S.W. to file a complaint with the human resources office; that he was directed to perform staff trainings but not to create training materials; that when he was asked for a training checklist, he could not find it at that time but delivered it to the director later that day; that he talked with his supervisor every day; and that he was never told that his position was in jeopardy.

[7] The next day, the ALJ issued a decision, concluding that S.W. voluntarily left his employment with good cause in connection with the work and determined that S.W. was eligible to receive unemployment benefits.

[8] On February 21, 2018, Company appealed the ALJ's decision to the DWD's Review Board. The Review Board did not conduct a hearing and did not consider any evidence not admitted by the ALJ. On March 12, 2018, the Review Board affirmed the ALJ's decision, adopting and incorporating the ALJ's findings of fact and conclusions of law. Company now appeals.

Discussion and Decision

[9] Company argues that the Review Board erred by determining that S.W. voluntarily left his position for good cause in connection with the work. The standard of review for an order from the Review Board is well established:

Under Indiana's Unemployment Compensation Act, "[a]ny decision of the review board shall be conclusive and binding as to all questions of fact." Ind. Code § 22-4-17-12(a) (2007). The Board's conclusions of law may be challenged as to "the sufficiency of the facts found to sustain the decision and the sufficiency of the evidence to sustain the findings of facts." Ind. Code § 22-4-17-12(f). Consistent with appellate review of other administrative adjudications, we categorize the Board's findings three ways: (1) basic, underlying facts; (2) ultimate facts derived as inferences or conclusions from basic, underlying facts; (3) and conclusions of law.
We review the Board's findings of basic facts under a substantial evidence standard, and we neither reweigh the evidence nor assess its credibility. We consider only the evidence most favorable to the Board's findings and, absent limited exceptions, treat those findings as conclusive and binding.
Ultimate facts-typically mixed questions of fact and law-are reviewed to ensure the Board has drawn a reasonable inference in light of its findings on the basic, underlying facts. Where the matter lies within the particular expertise of the administrative agency, we afford the finding a greater level of deference. Where the matter does not lie within the particular expertise of the agency, however, the reviewing court is more likely to exercise its own judgment. Regardless, the court examines the logic of the inference drawn and imposes any rules of law that may drive the result. The Board's conclusion must be reversed if the underlying facts are not supported by substantial evidence or the logic of the inference is faulty, even where the agency acts within its expertise, or if the agency proceeds under an incorrect view of the law.

Chrysler Grp., LLC v. Review Bd. of Ind. Dep't of Workforce Dev. , 960 N.E.2d 118, 122-23 (Ind. 2012) (some citations, internal quotation marks, and footnote omitted). We are not bound by the Review Board's conclusions of law. Id. Rather, we review questions of law de novo and accord the administrative tribunal below no deference. NIPSCO Indus. Grp. v. N. Ind. Pub. Serv. Co. , 100 N.E.3d 234, 241 (Ind. 2018).

[10] An individual is eligible for benefits under the Act if he satisfies certain criteria and is not disqualified by certain criteria. Ind. Code ch. 22-4-14, -15. An individual is disqualified from receiving unemployment benefits if he "voluntarily left the employment without good cause in connection with the work[.]" Ind. Code § 22-4-15-1(a). Here, it is undisputed that S.W. satisfied the Act's eligibility criteria and that he voluntarily terminated his employment. The dispositive issue, therefore, is whether S.W. terminated his job with or without "good cause in connection with the work." Id.

[11] Company contends that the evidence does not support the Review Board's order. Regarding the basic, underlying facts, the Review Board found that Company placed S.W. on a thirty-day performance improvement plan ostensibly out of concern that he was not performing his job duties, such as not properly training his subordinates and not being in his work area at scheduled times. But the Review Board found that, in fact, S.W. had performed his assigned duties both before and during the implementation of the improvement plan. Appealed Order p. 2. The following evidence supports the Review Board's findings of fact:

• S.W. provided all the documentation that his supervisors requested during the thirty-day performance improvement period. He spoke daily with the assistant director and provided the assistant director with daily and weekly incident reports.
• Although S.W. had been unable to produce training records on demand, he delivered them to the director the same day they were requested.
• S.W.'s job duties frequently required him to leave his work area to speak with people in other departments.
• S.W. maintained "an employee fact file" to document each time he talked to or reprimanded a staff person. Tr. p. 31. He also documented the reason he changed one employee's shift.
• S.W.'s supervisors did not instruct him to create training materials while he was on the improvement plan, and he was not told that his position was in jeopardy.

Moreover, the Review Board found that Company's "witnesses were all but entirely unable to provide details about the specific incidents that resulted in" S.W.'s placement on the performance improvement plan or the subsequent demotion and that Company's primary witness contradicted his own testimony more than once. Appealed Order p. 2. This evidence clearly supports the Review Board's findings of fact.

[12] Finding that the evidence supports the findings of fact, we now turn to whether the Review Board's determination that S.W. voluntarily terminated his employment for good cause in connection with the work is a reasonable determination of ultimate fact based on the basic, underlying facts.

[13] This Court has long held that if an employer unilaterally changes agreed upon employment terms, the employee may either accept the changes and continue working under the new terms or reject the changes and quit the job. Quillen v. Review Bd. of Ind. Emp't Sec. Div. , 468 N.E.2d 238, 241 (Ind. Ct. App. 1984). An employee terminating employment under these circumstances does so with "good cause" and is entitled to unemployment benefits so long as the circumstances are "so unfair or unjust as to compel a reasonably prudent person to quit work." Id. at 241-42. Whether those circumstances exist depends on the justification for and the reasonableness and fairness of the changed conditions. See Davis v. Review Bd. of Ind. Dep't of Workforce Dev. , 900 N.E.2d 488, 492-93 (Ind. Ct. App. 2009). "Consideration of the reasonableness of the terms of the new position guards against draconian demotions that have the intended effect of constructively discharging an employee whom the employer might not otherwise be able to discharge for just cause." Id. at 494 n.2. When the employer unjustly or unfairly demotes an employee who subsequently quits, that employee quits with good cause in connection with the work. Id. at 492-93.

[14] Here, S.W. faced a choice: he could accept a demotion to a position with different job duties and a lower pay rate or he could resign. Company placed S.W. on a thirty-day performance improvement plan even though he had been performing his assigned job duties; once he was on the plan, he complied with it. Nonetheless, Company decided to demote him. The specific circumstances leading to S.W.'s resignation differ greatly from cases in which this Court has found that an employee who resigned when facing a demotion did so without good cause. See id. at 493 (finding that employer reasonably and fairly demoted employee who, over the course of nearly one year, was unable or unwilling to improve his skills for one of his main job functions, and that employee resigned without good cause). As the Review Board found, there simply was a lack of "sufficient or sufficiently credible evidence ... to conclude that [S.W.'s] work performance was such that [he] should have been placed on the [performance improvement plan], much less that [he] should have been demoted to a lower position." Appealed Order p. 2. S.W.'s performance was not deficient, and Company's unilateral change in employment terms was so unreasonable or unfair as to compel a reasonably prudent person to quit work under similar circumstances. Thus, the Review Board did not err by finding that S.W. voluntarily terminated his employment for good cause in connection with the work.

[15] The judgment of the Review Board is affirmed.

May, J., and Robb, J., concur.

      Ind. Code § 22-4-1-1 et. seq.

      Initially, we note that Company submitted a brief that is single-spaced. This format violates Indiana Appellate Rule 43(E), which requires that "[a]ll text shall be double-spaced ...." Company's brief also violates Appellate Rule 46(A)(1), which requires a table of contents to list each section of the brief, including the headings and subheadings of each section and the page on which they begin. Company failed to include the headings of its argument section and the appropriate page numbers.
      Further, Company's statement of facts violates Appellate Rule 46(A)(6)(b), which requires that the facts "be stated in accordance with the standard of review appropriate to the judgment or order being appealed." As discussed in detail below, the standard of review for this case requires that the decision of the Review Board be conclusive and binding for all questions of fact. Ind. Code § 22-4-17-12(a). Company's brief blatantly disregards this standard of review; instead of presenting the facts in a light favorable to the Review Board's decision, Company presents only facts that favor its desired outcome and omits facts that support the Review Board's findings of fact and conclusions of law.

      The crux of Company's argument is that S.W. failed to carry his burden of proof to establish that his voluntary termination of his employment was for good cause. Company's argument is misguided. In the past, when a claimant sought unemployment benefits, the employer bore the initial burden of establishing that an employee was terminated for just cause, and if the employer met this burden, the claimant had to present evidence to rebut the employer's showing. Brown v. Ind. Dep't of Workforce Dev. , 919 N.E.2d 1147, 1151 (Ind. Ct. App. 2009). In 2014, however, our General Assembly amended the Act, eliminating the burdens of proof from disputed benefits hearings. See Ind. Code § 22-4-1-2(c). The Act now provides that a claimant's "entitlement to unemployment benefits is determined based on the information that is available without regard to a burden of proof ." I.C. § 22-4-1-2(c) (emphasis added). The merit of Company's argument is significantly diminished by its reliance on outdated law.