author: RUCKER, Justice.

text:
    In re the Matter of the Involuntary Termination of the Parent-Child Relationship of K.T.K., K.C. and K.R.K. (Minor Children), and R.C. (Mother), Appellants (Respondents below), v. INDIANA DEPARTMENT OF CHILD SERVICES, DEARBORN COUNTY OFFICE, Appellee (Petitioner below).
    No. 15S01-1306-JT-402.
    Supreme Court of Indiana.
    June 5, 2013.

      Jeffrey E. Stratman, Aurora, IN, Attorney for Appellant.
    Robert J. Henke, DCS Central Administration, Indianapolis, IN, Matthew K. Ha-genbush, DCS, Dearborn County Local Office, Lawrenceburg, IN, Attorneys for Appellee.
   RUCKER, Justice.

Indiana Department of Child Services successfully petitioned to terminate Mother and Father’s parental rights regarding their three children, K.T.K., K.R.K., and K.C. The trial court concluded that the Department of Child Services provided clear and convincing evidence that the conditions resulting in the children’s continued placement outside of the home would not be remedied and that termination of parental rights was in the best interests of the children. Concluding that the record supports the trial court’s findings, we affirm the judgment of the trial court.

Facts and Procedural History

R.C. (“Mother”) and T.K. (“Father”) are the biological parents of three children: K.T.K. born October 21, 2000; K.R.K. born December 5, 2003; and K.C. born April 13, 2009 (collectively the “Children”). The Dearborn County Department of Child Services (“DCS”) first became involved with Mother and her Children in August 2009 when Mother tested positive for Oxycodone yet failed to provide a recent prescription for the drug. On September 30, 2009, DCS received a report alleging Mother had passed out in a car with her infant son and required assistance getting in and out of the vehicle two days earlier. When DCS investigated the allegations, Mother denied having any recollection of the event but she admitted to having snorted hydrocodone and xanax that day. On October 2, DCS successfully petitioned to declare all three Children in need of services and removed the Children from Mother’s home due to Mother’s admitted substance abuse problems and her inability to properly care for the Children. The Children were placed with their biological paternal grandmother (“Grandmother”) because Father was incarcerated and thus also lacked the ability to provide or care for his Children.

Mother continued to use drugs and failed to cooperate with the recommended services offered by DCS after the Children were removed from her care. Beginning January 2010, Mother was incarcerated pending charges for theft and receipt of stolen property until mid-July of that year. Two weeks after her release from prison, Mother was arrested again for public intoxication and remained incarcerated until November 4, 2010. By the time mother was released from her second term in prison, the Children had already been under DCS’ care for 13 months.

On November 12, 2010, DCS changed the permanency plan from reunification to termination of parental rights and adoption. And on January 5, 2011 DCS filed a petition with the trial court for involuntary termination of parental rights. The trial court held an evidentiary hearing on DCS’ petition for termination, which lasted three days — June 1, August 9, and September 19, 2011. Throughout this time the Children remained under DCS’ care and had been placed in five different living arrangements: (1) October 2, 2009: Children were placed with Grandmother; (2) November 23, 2009: Children were placed with maternal grandfather (“Grandfather”); (3) September 7, 2010: K.C. was removed from Grandfather and returned to Grandmother and K.T.K. and K.R.K. were placed in a foster home with temporary foster family B.E. and K.E.; (4) December 12, 2010: K.C. was also placed with B.E. and K.E.; and (5) February 11, 2011: all three Children were placed with B.S. and D.S. (“Foster Parents”) where they have remained since. DCS did not have the option of placing Children with Father because he remained incarcerated throughout the termination hearing.

On October 13, 2011, the trial court issued its Order on Final Termination Hearing (“Order”). The order provided in pertinent part:

1. The Children have been placed outside of the home for fifteen (15) of the last twenty-two (22) months.
2. There is a reasonable probability that the reasons for placement outside of the home will not be remedied in that:
a. Mother has a severe substance abuse addiction that will always present a risk of relapse, particularly in times of stress.
b. Mother’s choices have created the circumstances that resulted in the Children’s removal from the home and the court found these choices far more compelling than the late remedial efforts made by Mother.
c. Mother’s lack of commitment in the CHINS process until October 2010 demonstrates her lack of commitment to her children and shows a reasonable probability that she will fail them again.
d. Mother has a history of consistent disobedience of the law.
3. Termination of the parent-child relationship is in the Children’s best interests because the Children’s need for permanency is paramount.
4. DCS has a plan for the Children’s continued care and treatment, namely to have the Children adopted by their current Foster Parents.

See Amended Order, at 6-7.

On November 4, 2011, Mother filed a timely appeal of the trial court’s Order. On February 13, 2012, Father filed an appeal of the Amended Order but Mother did not. In a memorandum decision the Court of Appeals affirmed the trial court’s order terminating Father’s parental rights. See In re K.T.K., No. 15A01-1201-JT-14, 2012 WL 3206076 (Ind.Ct.App. Aug. 8.2012). Due to some procedural missteps by Mother, a divided motions panel dismissed Mother’s appeal with prejudice. In re K.T.K., No. 15A01-1201-JT-14, Order Granting Motion to Dismiss (Ind.Ct. App. May 11, 2012). Both Mother and Father petitioned for transfer. We grant Mother’s petition and thereby set aside the Court of Appeals order dismissing Mother’s appeal. See Ind. Appellate Rule 58(A). In a separate order issued today, we deny Father’s petition to transfer. Additional facts are set forth below as necessary.

Standard of Review

In considering whether the termination of parental rights is appropriate, “we do not reweigh the evidence or judge witness credibility.” In re I.A., 934 N.E.2d 1127, 1132 (Ind.2010). We consider only the evidence and any reasonable inferences therefrom that support the judgment, In re G.Y., 904 N.E.2d 1257, 1260 (Ind.2009), and give “due regard” to the trial court’s opportunity to judge the credibility of the witnesses firsthand. In re I.A., 934 N.E.2d at 1132 (quoting Ind. Trial Rule 52(A)). Where a trial court has entered findings of fact and conclusions of law, we will not set aside the trial court’s findings or judgment unless clearly erroneous. Id.; Tr. R. 52(A). In evaluating whether the trial court’s decision to terminate parental rights is clearly erroneous, “we review the trial court’s judgment to determine whether the evidence clearly and convincingly supports the findings and the findings clearly and convincingly support the judgment.” In re I.A, 934 N.E.2d at 1132. “Clear and convincing evidence need not reveal that the continued custody of the parents is wholly inadequate for the child’s very survival. Rather, it is sufficient to show by clear and convincing evidence that the child’s emotional and physical development are threatened by the respondent parent’s custody.” Bester v. Lake Cnty. Office of Family & Children, 839 N.E.2d 143, 148 (Ind.2005) (quotations omitted).

Discussion

I.

“The Fourteenth Amendment to the United States Constitution protects the traditional right of parents to establish a home and raise their children.” Id. at 147 (citing Pierce v. Soc’y of Sisters, 268 U.S. 510, 534-35, 45 S.Ct. 571, 69 L.Ed. 1070 (1925)); Meyer v. Neb., 262 U.S. 390, 399, 43 S.Ct. 625, 67 L.Ed. 1042 (1923). The parent-child relationship is “one of the most valued relationships in our culture.” In re I.A., 934 N.E.2d at 1132 (quoting Neal v. Dekalb Cnty. Div. of Family & Children, 796 N.E.2d 280, 285 (Ind.2003)). And a parent’s interest in the upbringing of their child is “perhaps the oldest of the fundamental liberty interests recognized by th[e] [c]ourt[s].” Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). We also recognize, however, that parental interests are not absolute. In re G.Y., 904 N.E.2d at 1259. “[C]hildren have an interest in terminating parental rights that prevent adoption and inhibit establishing secure, stable, long-term, continuous relationships.” In re C.G., 954 N.E.2d 910, 917 (Ind.2011) (citing Lehman v. Lycoming Cnty. Children’s Servs. Agency, 458 U.S. 502, 513, 102 S.Ct. 3231, 73 L.Ed.2d 928 (1982)). Consequently, a parent’s interests must be subordinated to the child’s interests when considering a State’s petition to terminate parental rights. In re G.Y., 904 N.E.2d at 1259. Accordingly, “[p]arental rights may be terminated when the parents are unable or unwilling to meet their parental responsibilities” by failing to provide for the child’s immediate and long-term needs. In re I.A., 934 N.E.2d at 1132 (alteration in original) (quoting In re D.D., 804 N.E.2d 258, 265 (Ind.Ct.App.2004), trans. denied).

Indiana Code section 31-35-2-4(b)(2) provides that a petition to terminate parental rights for a child in need of services must allege that:

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

I.C. § 31 — 35—2^4—(b)(2) (2008). DCS must prove the alleged circumstances by clear and convincing evidence. Bester, 839 N.E.2d at 148.

II.

In this case, DCS alleged (1) “the child[ren] ha[d] been removed from ... [Mother] and ha[d] been under the supervision of DCS for 15 of the last 22 months or ha[d] been under a dispositional order in the underlying CHINS case for more than ... six months,” App. at 288; (2) “[t]here is a reasonable probability that the conditions that resulted in the child[ren]’s removal will not be remedied and/or the continuation of the parent-child relationship poses a threat to the well-being of the children],” Id.; (3) “termination of the parent-child relationship is in the best interests of the child[ren]” because “the child[ren] need[ ] a permanent, stable home with sober, capable caregivers who are able to protect [them], supervise [them] adequately, and keep [them] safe from any sort of harm,” Id.; and (4) “[t]here is a satisfactory plan for the care and treatment of the children].” Id.

Mother first challenges the sufficiency of the evidence supporting the trial court’s conclusions with regard to the requirements of Indiana Code section 31-35-2-4(b)(2)(B). We first observe that in order to prove that termination is appropriate, DCS need only prove one of the two grounds alleged in the petition for involuntary termination under section 31-35-2-4(b)(2)(B). Bester, 839 N.E.2d at 148 n. 5 (“Having found a reasonable probability that the conditions precipitating the [children’s] removal would not be remedied, the trial court was not required to find also that the continuation of the parent-child relationship posed a threat to the [children], since the statute only requires finding one or the other.”) (alteration in original) (quoting In re W.B., 772 N.E.2d 522, 581 n. 2 (Ind.Ct.App.2002)); I.C. § 31-35-2-4(b)(2). In this case the trial court determined that both allegations were satisfied.

A. Remediation of Condition.

In order to terminate Mother’s parental rights pursuant to Indiana Code section 31-35-2^(b)(2)(B)(i), DCS must show by clear and convincing evidence that “the conditions that resulted in the child[ren]’s removal or the reasons for placement outside [Mother’s] home ... will not be remedied.” I.C. § 31-35-2-4(b)(2)(B)(i). We engage in a two-step analysis to determine whether the conditions that led to the Children’s placement outside the home will not be remedied. First, we must ascertain what conditions led to their placement and retention in foster care. Second, we “determine whether there is a reasonable probability that those conditions will not be remedied.” In re I.A., 934 N.E.2d at 1134 (citing In re A.A.C., 682 N.E.2d 542, 544 (Ind.Ct.App.1997)). In making these decisions, “the trial court must consider a parent’s habitual pattern of conduct to determine whether there is a substantial probability of future neglect or deprivation.” Bester, 839 N.E.2d at 152 (citing J.K.G. v. Fountain Cnty. Dep’t of Pub. Welfare, 470 N.E.2d 88, 92 (Ind.Ct.App.1984)).

i. Conditions Resulting in Children’s Removal.

The record shows that DCS removed the Children from Mother’s home and placed them in foster care due to Mother’s serious substance abuse issues, which rendered her incapable of providing the necessary care and supervision that the Children required. Just days prior to the Children’s removal, Mother was seen passed out in a vehicle with her infant son K.C. and required assistance getting out. Although she claims to have no recollection of the incident, she does admit to having snorted hydrocodone and xanax at that time which contributed to the Children’s removal. Through her own admissions and by way of counsel Mother acknowledges that she has a serious substance abuse problem. Mother began taking illegal drugs at the age of 15 and began to abuse beer at the age of 16 or 17. Ex. 1 at 10. At the time DCS removed the Children from Mother’s home, she had battled an addiction to prescription drugs for approximately seven years but had abused other illegal substances throughout the Children’s lives. See Id. at 7, 10. The evidence of Mother’s serious drug addiction is reflected in testimony from various witnesses during the hearing as well as in the Psychological Evaluation and Parenting Assessment from Dr. Edward J. Con-nor, which was based partly on Dr. Con-nor’s interview with Mother.

DCS Case Manager, Michael Probst, testified that in August 2009 Mother’s drug screen tested positive for oxycodone. Tr. at 98. He further stated that Mother later acknowledged having substance abuse issues with prescription drugs and the three, drug screens that DCS performed in October 2009 after the Children were removed all tested positive — indicating that she had recently consumed hydro-codone, oxycodone, cocaine, and benzodi-nine. Id. at 98-99. DCS Family Case Manager, Heather Hardman, testified that Mother’s drug screens through November 2009 revealed the presence of morphine and marijuana in addition to the drugs in the aforementioned list. Id. at 34. Moreover, Dr. Connor testified about the contents of his written evaluation of Mother which stated, “[Mother] has tried various illicit substances throughout her young adult years such as hash, LSD, ecstasy, ... cocaine, crack cocaine, and heroin. She began to use heroin on a regular basis up around the age of 26. The last time she had any heroin was in 2010.” Ex. 1 at 10. Mark Clark, a staff therapist for Community Mental Health Center (“CMHC”), testified that Mother was recommended to attend three times the number of sessions for individuals with substance abuse issues than usually required. See Tr. at 242, 245. Most notably, Mother’s drug problems were not recent but had lasted through the duration of the Children’s lives. This evidence clearly and convincingly supports the trial court’s finding that Mother “has a serious substance abuse problem,” Am. Order ¶ 2, at 2, which led to the Children’s removal from Mother’s home.

The record also reflects that Mother has a history of criminal behavior. Her criminal activities resulted in nearly eleven months of incarceration during 2010, which required the Children’s continued placement in foster care. In January 2010, Mother was incarcerated pending trial for charges of theft and receiving stolen property. See Ex. 5 at 32-34; Ex. 8 at 60-61. She was eventually released mid-July but then was arrested again in August for public intoxication. She remained incarcerated for those charges until November 4, 2010. In addition, Mother’s criminal background includes: operating while intoxicated convictions; Ex. 6 at 41; multiple traffic citations including operating while intoxicated (prior), driving while suspended, and failure to abide by traffic laws; Ex. 1 at 9; Ex. 5 at 37-39; and probation violations that resulted in probation revocation. Ex. 8 at 65-66. Mother’s disregard for the law was evident as early as her adolescent years when she was cited for consumption by a minor. See Ex. 1 at 9. Dr. Connor’s evaluation revealed that “it is difficult to determine whether [Mother’s] criminal mentality has been altered.” Id. at 14. He also commented that “her criminal history is concerning and strongly suggests that she is not opposed to violating the law or societal expectations for selfish purposes.” Id. This evidence clearly and convincingly supports the trial court’s finding that Mother “has a ‘criminal mentality’ that manifests itself in disregard for the law.”. Am. Order ¶ 6, at 2 (citing Ex. 1 at 14).

ii. Reasonable Probability that Conditions Will Not Be Remedied.

Having determined the reasons for which the Children were removed from Mother’s care, we now turn our attention to whether there is a reasonable probability that these circumstances will not be remedied. In re I.A., 934 N.E.2d at 1134. In this case, the trial court found that Mother’s substance abuse problem is severe such that she will always be at risk for relapse. This finding is supported by the record.

After removing the Children from Mother’s home on October 2, 2010, DCS referred Mother to CMHC for a substance assessment, treatment, and monitoring so that CMHC could determine what other services may be needed for her substance abuse problems. Tr. at 31. Mother did not show up for that appointment. Id. Mother also failed to participate in the recommended parenting classes at that time. See Id. at 34, 36-37. Between October 2009 and Mother’s incarceration in January 2010, Mother knew that Children were wards of the State and under DCS’ care yet she inconsistently participated in DCS’ services. Id. During that same time, Mother also failed to cooperate with or return phone calls from guardian ad litem, (“GAL”), Patty Tyler. Id. at 198-99. When Mother was released from prison in July 2010, she stated to Case Manager, Heather Hardman, that she was willing to complete the available services and “she really wanted to get out and change things.” Id. at 33. Notwithstanding, Mother began drinking again two weeks after her release, which led to her second incarceration that year. In light of these actions, Ms. Hardman testified that there is a risk that Mother’s behavior would continue; thus, limiting her ability to maintain a successful household for the Children moving forward. Tr. at 39. She explained that “history is a good indicator of the future” and her concerns were based on Mother’s “substance abuse history and her criminal activity, [which] would be a good indicator ... of what would happen and a good indicator for the children as to what could happen as well.” Id. at 40.

Dr. Connor’s evaluation states “it is difficult to predict with certainty that [Mother] has truly turned her life around.” Ex. 1 at 14. He elaborated that Mother’s “criminal history ... strongly suggests that she is not opposed to violating the law or societal expectations for selfish purposes. [And] [i]t is difficult to say with any degree of psychological certainty that [Mother] will continue on her path of sobriety and social responsibility.” Id. Dr. Connor further opined that Mother “might not always be able to inhibit her impulses, and the fact that she has lead a pretty risky lifestyle in the past ... predisposes her to returning to that lifestyle if things become too stressful for her.” Tr. at 154. Dr. Gayla Kaibel prepared a written Psychological and Parenting Review on behalf of Mother, which did not contradict Dr. Connor’s conclusion in this regard. Rather, Dr. Kaibel testified that Mother’s likelihood of re-offending is more based on her ability to remain clean and sober. Id. at 285.

Mother’s prior, habitual pattern of substance abuse and criminal conduct resulted in continued neglect of the Children such that “there is a substantial probability of future neglect or deprivation.” Bester, 839 N.E.2d at 152 (citing In re J.K.C. 470 N.E.2d at 92). Even Mother’s own expert witness, Dr. Kaibel, acknowledged that “the process of getting clean takes some time, more than a few months. [And] [diagnostic systems require a full year of sobriety or non-use to assign full remission status.” Ex. A-M at 85. It is of no small consequence that evidence presented during the hearing reveals that Mother had not used illegal drugs in approximately 17 months and she had not consumed alcohol in approximately 11 months, resulting in roughly 40 negative drug screens during that time. We are mindful, however, that the trial court was within its discretion to consider that the first eleven months of her sobriety were spent in prison where she would have not had access to any illegal substances, nor be subjected to the type of stressors — namely the responsibility of maintaining a household and raising three young and active children — that would normally trigger a desire to pursue an escape from the pressures of everyday life that drugs often provide. Further, the trial court was within its discretion to “disregard the efforts Mother made only shortly before termination and to weigh more heavily Mother’s history of conduct prior to those efforts.” Am. Order ¶ 3, at 6; see also In re C.M., 675 N.E.2d 1134, 1140 (Ind.Ct.App.1997) (explaining that “it [is] within the province of the trial court, as the finder of fact, to ignore or discredit ... evidence” of remedial efforts made shortly before the termination hearing). On appeal, “we do not reweigh the evidence or judge witness credibility.” In re I.A., 934 N.E.2d at 1132. Here, the evidence presented clearly and convincing shows a reasonable probability exists that the conditions that led to the Children’s removal from Mother’s home will not be remedied and we do not find the trial court’s findings to be clearly erroneous in this regard.

Having determined that the State met its burden to show that “the conditions that resulted in the child[ren]’s removal or the reasons for placement outside [Mother’s] home ... will not be remedied” pursuant to Indiana Code section 31-35-2-4(b)(2)(B)®, we need not address whether the State has proven its allegations under section 31-35-2-4(b)(2)(B)(ii). In re W.B., 772 N.E.2d at 531 n. 2 (citations omitted).

B. Continuation of Parent-Child Relationship.

Mother also challenges the trial court’s conclusion that termination was in the Children’s best interests. As we have said, “[c]lear and convincing evidence need not reveal that the continued custody of the parent[] is wholly inadequate for the child’s very survival. Rather, it is sufficient to show ... that the child’s emotional and physical development are threatened by the respondent parent’s custody.” Bester, 839 N.E.2d at 148 (quotations omitted). “The trial court need not wait until the child is irreversibly harmed such that the child’s physical, mental and social development is permanently impaired before terminating the parent-child relationship.” In re C.M., 675 N.E.2d at 1139 (citation omitted). When assessing the child’s physical, emotional and mental well-being, the trial court may consider a myriad of factors. We acknowledge that among those factors contemplated, “[p]er-manency is a central consideration in determining the [child’s] best interests.... ” In re G.Y., 904 N.E.2d at 1265.

The trial court concluded that termination of Mother’s parental rights was in the Children’s best interests and expressed the Children’s need for permanency as paramount. Am. Order ¶ 4, at 7. Since the Children were adjudicated wards of the State in October 2009, they have been placed in five different living environments over a period of 16 months and in some instances split apart. The Children’s home-based therapist, Jack Hopkins, testified that the Children are doing better since being placed in Foster Parents’ home. He explained that:

the children are beginning to sense an attachment with this family in a number of ways, and ... they are starting to sense a peace and security ... and maybe a sense of belonging even that they’ve been lacking, and [they are starting to work through] the uncertainty of where they were going to be placed and what was going to happen with them....

Tr. at 105. He further testified that “one of the things that’s been troublesome to the children is that uncertainty of ‘where am I going to be, what’s going to be my family, [and] what’s going to happen to me.... ”’ Id. at 106. This testimony is corroborated by evidence presented by Dr. Connor who testified that the Children were more bonded with Foster Parents than would normally be expected in that short period of time. Dr. Connor also stated the Children’s best interests would be served by allowing them to remain in Foster Parents’ care. The GAL testified that the risk of reunification is more considerable in this case because of Mother’s history and surroundings. As such, she acknowledged that termination of parental rights was in the Children’s best interests based on her concerns over the length of time that it took Mother to commit to a path of recovery and “the fact that the children just really need a permanent home.” Id. at 199-200. The need for permanency was further echoed by Ms. Hardman. She stated that she supported termination of Mother’s parental rights because the Children “need some sort of stable permanency and a drug free environment to grow and develop as normal kids deserve.” Id. at 42. She also confirmed that this need for permanency would be satisfied upon termination of Mother’s parental rights because Foster Parents had already expressed a desire and willingness to adopt the Children. Id. at 40-41.

In addition to the Children’s need for permanency the record reflects that Mother’s habitual pattern of exposing the Children to her criminal behavior detrimentally impacted the Children’s psychological, emotional, and physical development. “Individuals who pursue criminal activity run the risk of being denied the opportunity to develop positive and meaningful relationships with their children.” In re A.C.B., 598 N.E.2d 570, 572 (Ind.Ct.App.1992). And in this case, not only did Mother’s choice of conduct result in a substantial period of incarceration during the Children’s young lives, but she deprived them of their youth and innocence by exposing them to her drug usage and — as their primary caretaker — -jeopardized their physical safety by neglecting to properly supervise them while she pursued her desire to continue using drugs.

In a letter that ten-year-old K.T.K. wrote to the trial court begging the court to allow the Children to remain with Foster Parents, he recounted instances in which he observed Mother snorting drugs in the bathroom and then he “had to pick the lock and get in there.” Ex. 9 at 68. He also wrote that he knew Mother smoked marijuana and felt that Children “were in a[w]hole lot of trouble,” id., and it “was a bad life.” Id. at 69. K.T.K. claimed that most of the time Mother “didn’t even take care of [him]” during the time in which the Children were in Mother’s home. Id. K.T.K. also detailed these and other instances of Mother’s actions with Dr. Connor. During Dr. Connor’s discussions with seven-year-old K.R.K., K.R.K. stated that she did not feel safe with Mother “[b]ecause she drank beer. [K.R.K.] then recalled an incident whereby she fell into a fire pit when she believes that her mother was supposed to be watching her.” Ex. 1 at 13. Furthermore, Mother’s physical neglect of Children is evident in the report that DCS received, alleging Mother had passed out in a vehicle with her infant son and required assistance getting in and out of the vehicle. It was this very incident that led to DCS’ investigation and Children’s subsequent removal from Mother’s home.

Here, there is ample evidence to support the trial court’s finding that the Children’s emotional and physical development would be threatened by returning them to Mother’s custody. Therefore, we cannot say that the trial court erred in concluding that termination of Mother’s parental rights was in the Children’s best interests.

III.

Finally, Mother argues that the trial court erred by failing to grant Mother’s request for a change of judge. The record reflects that on January 20, 2011 — during the Fact Finding Hearing — Mother and counsel were “in agreement at th[at] time to withdraw th[e] Motion for Change of Judge and proceed forward ... on the matter” and thus withdrew the Motion for Change of Judge. Tr. at 19. At that point the trial court accepted Mother’s withdrawal of the Motion. Id. Mother cannot now claim that the trial court erred in failing to grant a motion that she voluntarily withdrew.

Conclusion

We conclude that the evidence supports the trial court’s finding that Mother was not able to provide for her Children and termination of Mother’s parental rights was in the Children’s best interests. We affirm the judgment of the trial court.

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

      . The trial court later issued an Amended Order on Final Termination Hearing on January 11, 2012 ("Amended Order”). The order was amended to correct errors relating to Father but had no substantive impact on the court's findings of fact or conclusions of law as it relates to Mother. As such, any references to findings of fact or conclusions of law from the trial court's order will be taken from the Amended Order.


source: Caselaw Access Project

license: Public Domain

text:
    In re MANDATE OF FUNDS FOR CENTER TOWNSHIP OF MARION COUNTY SMALL CLAIMS COURT Order for Mandate and Mandate of Funds.
    No. 49S00-1207-MF-420.
    Supreme Court of Indiana.
    June 28, 2013.

      Gregory F. Hahn, Alan S. Townsend, Bryan H. Babb, Jonathan W. Hughes, Bose McKinney & Evans LLP, Indianapolis, IN, Attorneys for Appellants Center Township Trustee, Eugene W. Akers, and the Center Township Advisory Board.
    Karl L. Mulvaney, Philip L. Isenbarger, Margaret M. Christensen, Bingham Greenebaum Doll LLP, Indianapolis, IN, Attorneys for Appellee Judge Michelle Smith Scott.
   RUCKER, Justice.

This is a mandate action involving a dispute between the Center Township of Marion County Small Claims Court and the Center Township Trustee and Advisory Board over court renovations, additional staff, increase in salaries, and the location of the court. As explained below we approve the renovations, additional staff, and the mandate prohibiting the relocation of the court. We disapprove the mandated salary increases.

Background

From time to time — as has happened in the case before us — disagreement over court resources between a judge and local government will prove to be so intractable as to require litigation. In 1976, this Court adopted Trial Rule 60.5 establishing orderly procedures for the resolution of intracounty disagreements about court resources. “We adopted the rule after studying the report of a legislative joint committee that held hearings attended by judges and by many representatives of county government.” St. Joseph Cnty. Comm’rs. v. Nemeth (In re Mandate of Funds), 929 N.E.2d 703, 707 (Ind.2010) (internal citation omitted).

In 2008, an informal working group of county government representatives and trial court judges proposed several changes to Trial Rule 60.5. For example, “they suggested that the rule explicitly provide for referring such disagreements to mediation;” that “when it became necessary to appoint a special judge to adjudicate such disagreements, that [the] special judge not be a sitting or [former] judge but instead a practicing lawyer;” and proposed that “the rule specify that any attorney fees awarded by a special judge in such cases be paid at a rate not greater than the reasonable and customary hourly rate for an attorney in the county.” Id. at 708. This Court adopted the proposals of the working group in 2009. This is the second case using the 2009 amended procedures of Trial Rule 60.5. See id.

The procedures established by Trial Rule 60.5 “are infrequently invoked in Indiana.” Montgomery Cnty. Council v. Milligan (In re Mandate of Funds), 873 N.E.2d 1043, 1045 (Ind.2007). And although the typical mandate proceeding involves a disagreement about court funding, we have held that the procedures of Trial Rule 60.5 apply to mandates other than those involving court funding, including disputes over the location of court offices. See In re Assignment of Courtrooms, Judge’s Offices, and Other Court Facilities of St. Joseph Super. Ct., 715 N.E.2d 372, 373 n. 1 (Ind.1999). In this case the procedures of Trial Rule 60.5 have been employed to settle a dispute not only about the funding for court operations, but also the relocation of the court itself.

In most Indiana counties, small claims cases are heard as part of the “small claims docket” of the County Circuit or Superior Courts. See Ind.Code § 33-29-2-4. Marion County operates differently. In Marion County there are nine township government entities. And by statute a small claims court has been established in each township. See Ind.Code § 33-34-1-2. Together the nine township courts handle approximately 70,000 cases annually. See Indiana Supreme Court Small Claims Task Force, Report on the Marion County Small Claims Courts 7 (2012).

In essence, the Marion County small claims courts are township-level judicial entities; and for some time there has been tension between these courts and the township governing bodies with regard to control of court activities. The busiest of the township courts is that in Center Township, which receives approximately 14,000 case filings annually. See Task Force Report, Appendix at 370. Center Township encompasses central Marion County, including downtown Indianapolis and the nearest suburbs.

Procedural History

In 2006, the then-Center Township Small Claims Court judge, the Honorable Paula Lopossa, filed a complaint for mandate enjoining the then-trustee, Carl Drummer, from “hiring, supervising, and disciplining” the court’s clerks and declaring that the court has the sole authority to hire, supervise, and discipline its employees, prepare and submit its annual budget, and to order its own equipment and supplies. Joint Exhibits at 201-202. The complaint also alleged that the 1,615 square feet of workspace then allocated for court operations in the City-County Building in downtown Indianapolis was insufficient, though Judge Lopossa requested no relief in this regard. See id. at 200.

After her election to the Center Township Small Claims Court bench in 2007, Judge Michelle Smith Scott was substituted as the plaintiff in the court’s complaint against Trustee Drummer. Judge Scott and Trustee Drummer subsequently negotiated a compromise and the complaint originated by Judge Lopossa was dismissed in 2009. However, this did not end the tension about administrative authority over the court. The record shows that after taking office in January 2011, the then newly-elected Center Township Trustee, Eugene Akers, continued the practice of exercising control over the court’s budgets, funds, and employees. See, e.g., Tr. at 110-14, 162-63 (Trustee Akers’ testimony that the Small Claims Court clerks and other staff members reported to the Trustee, not to Judge Scott); Tr. at 160 (Trustee Akers’ testimony that he required court employees to recite the Township Mission Statement upon his request); see also Appellant’s Verified Statement at 3 (acknowledging that the Trustee and/or Center Township “unintentionally]” failed to notify Judge Scott before extending offers to new court employees and failed to notify the Judge of their hire until the business day before they reported to work in Judge Scott’s court).

Sometime in early spring of 2011, Trustee Akers advanced a plan to relocate the Center Township Small Claims Court from its small space in the basement of the City-County Building to a larger, more modern facility in the township-owned Carson Center on Fall Creek Parkway in Indianapolis and to renovate the Carson Center space to accommodate the court. The Trustee first advised Judge Scott of his plan on June 7, 2011. At a public hearing the next day the Trustee presented the plan to the Center Township Advisory Board. Judge Scott attended the June 8 meeting and asked the Trustee and the Board to take various concerns of hers into consideration before deciding to move the court. See Joint Exhibits at 33-34. On June 13 Judge Scott sent a letter to the Board president offering, in conjunction with the Office of State Court Administration, technical assistance for a feasibility study on moving the court, for the purpose of obtaining “an objective opinion by an individual experienced in Court Operations.” Id. at 39. Judge Scott opined that the cost of such a study “may be underwritten and likely free.” Id. Another Board meeting was held on July 18, at which Trustee Akers stated “A Feasibility Study ... will cost more than I am going to spend.” Id. at 42. Instead the Trustee conducted what he characterized as a “commonsense study” to conclude that the court should be relocated. Id. at 40. Also at the July 18 meeting, Judge Scott presented a report providing support for her conclusion that the court should remain in its present location in the City-County Building. Id. at 42; 47-57. On August 31, Judge Scott wrote to Trustee Akers in preparation for the upcoming budget meeting, requesting funds for salary increases, additional staff, and replacement of office furniture in the City-County Building to facilitate better operation of the court. Id. at 68-69. Ultimately, on September 21, 2011 the Board voted to approve the Trustee’s plan and issued an order relocating the court to the Carson Center over the objection of Judge Scott.

Having been unsuccessful in resolving the relocation issue through other avenues and pursuant to her authority under Indiana Trial Rule 60.5, Judge Scott, on behalf of the Small Claims Court (collectively, the “Court”) issued an “Order For Mandate And Mandate Of Funds” directing the Trustee and the Advisory Board (collectively, the “Township”) to show cause why:

[T]he Center Township of Marion County Small Claims Court should not at this time remain located in the City County Building ... the Center Township of Marion County Small Claims Court clerks should not receive a 5% increase in salary ... the Court should not be provided two additional full-time clerks; and ... why funds should not be appropriated to allow for new space-efficient furniture, and the reconfiguration of the Court’s existing space and for the configuration of new space offered to the Court by the City-County Building Authority.

Joint Exhibits at 1. The Order specifically mandated:

[T]hat the Center Township Small Claims Court shall not be moved, and that the Trustee and Township Board provide (1) funds for a 5% increase in salary for all court employees; (2) funds necessary to fund two new clerk positions; and (3) funds to purchase new furniture and to allow for reconfiguration of current and new space in the City-County Building.

Id. at 1-2.

The Township opposed the Mandate Order and filed with this Court a motion to dismiss. Noting that “an overriding issue presented in this matter is the fundamental question of access to justice,” this Court on December 9, 2011 denied the Township’s motion and pursuant to Trial Rule 60.5(B) appointed Mr. Charles L. Berger, an experienced Vanderburgh County attorney, as special judge to hear the matter and make findings regarding the mandate. In re Center Twp. of Marion Cnty. Small Claims Ct. Order for Mandate, No. 49S00-1111-SJ-667 at 1-2 (Ind. Dec. 9, 2011). The special judge held a trial on May 1, 2, and 8, 2012; and thereafter on June 11, 2012 entered his findings of fact, conclusions of law, and decree. The decree affirmed the Mandate Order in certain respects including decreeing: (1) the location of the Small Claims Court should remain in the City-County Building; (2) Center Township must provide reconfigured space and certain items of new furniture and equipment for the Small Claims Court; and (8) Center Township must allocate funds to provide two additional full-time staff members for the Small Claims Court. Although not a part of the Mandate Order itself, but consistent with the evidence and with Judge Scott’s specific request at trial, the decree further directed “the Court shall maintain authority and control of its staff’ in matters of supervising, hiring, and firing “without supervision or involvement of the Trustee,” and further ordered the Trustee “to relinquish control” over the Small Claims Court’s financial operations. App. at 48. The decree also ordered the Township to pay the reasonable attorney’s fees and expenses incurred by each party. See id. at 47-48. Further, the special judge reversed that portion of the mandate ordering an increase to court employees’ salaries. We express our appreciation to special judge Berger for his service in this challenging case.

Trial Rule 60.5 provides that the special judge’s decree be reviewed by this Court unless the responsible governmental entities expressly waive review. Review was not waived here, so this Court issued an order governing briefing and the filing of the record on appeal. The parties concluded briefing on October 19, 2012, and we took the matter under advisement. The Township appeals aspects of the decree; however the Small Claims Court does not cross-appeal the issue of salary increases.

Discussion

It bears repeating that disputes between the judiciary and governmental legislative and executive authorities, if they cannot otherwise be resolved, are governed by Indiana Trial Rule 60.5, which provides in relevant part:

Whenever a court, except the Supreme Court or the Court of Appeals, desires to order either a municipality, a political subdivision of the state, or an officer of either to appropriate or to pay unappropriated funds for the operation of the court or court-related functions, such court shall issue and cause to be served upon such municipality, political subdivision or officer an order to show cause why such appropriation or payment should not be made.

T.R. 60.5(B). Where there is a clear and present danger of impairment of a court’s operation, a mandate action is proper. St. Joseph Cnty. Comm’rs. v. Nemeth, 929 N.E.2d at 710 (citing Montgomery Cnty. Council, 873 N.E.2d at 1046). The special judge’s role in a mandate proceeding is to determine whether the mandated funds or actions are reasonably necessary for the operation of the courts and court-related functions, and whether any other governmental interests are so severely and adversely affected by the order as to require it to be set aside. See id.; In re Assignment of Courtrooms, 715 N.E.2d at 375; Morgan Cir. Ct. v. Morgan Cnty. Council, 550 N.E.2d 1303, 1304 (Ind.1990). When we review the special judge’s decree, “we do not ordinarily reevaluate the evidence and we will affirm the decree if there is substantial evidence of probative value to support the judgment.” In re Assignment of Courtrooms, 715 N.E.2d at 375 (citing In re Mandate of Funds for the Brown Cir. Ct., 507 N.E.2d 583, 584 (Ind.1987)). But given the “profound public interest in open and functioning courts and our special knowledge of trial court operations,” we retain “a measure of authority to weigh and evaluate the evidence in reviewing the judgment of the special judge.” Morgan Cir. Ct., 550 N.E.2d at 1304.

In this case the Township expressly does not contest that portion of the special judge’s decree directing that the Court— without the intervention of the Trustee— shall control the supervising, hiring, and firing of court staff; or ordering the Trustee to relinquish control over the Small Claims Court’s financial operations. See Br. of Appellants at 40. This is of course as it should be. See Bd. of Comm’rs. of Crawford Cnty. v. Riddle, 493 N.E.2d 461, 463 (Ind.1986) (declaring a court “cannot be controlled, directed, or impeded in its functions by any other department of government”). Also, the Township does not object to allocating funds for two additional full-time staff members for the court. Instead, the Township complains only about that portion of the decree concerning the court’s location and the award of attorney fees.

I. Location of the Court

The Township urges that the decree ordering the Small Claims Court to remain in the City-County Building and directing the Township to provide reconfigured space and new furniture and equipment should be reversed. In support of its position the Township calls our attention to numerous facts and arguments favoring relocation. From these, we distill two relevant contentions: (1) the Mandate Order adversely affects governmental interests, namely: the interest of the Board in sharing joint authority with the local judge over the Court’s location, and (2) the Mandate Order is unsupportable because relocating the court to the Carson Center presents no clear and present danger of impairment to its operations.

With respect to the first contention the Township’s argument can best be summarized as follows: the exercise of joint authority over the decision concerning the Court’s location was rendered a nullity when Judge Scott mandated that the court remain in its present location. According to the Township there is no “ ‘joint’ exercise of any authority” where a court can resort to mandate “any time the Legislative and Executive branches refuse to adopt the Judiciary’s position on a dispute over court facilities_” Br. of Appellants at 43.

We first observe that it is certainly correct to say that the Township’s statutory responsibility to “provide a courtroom and an office for each judge in a convenient location within the township,” I.C. § 33-34-6-1, “carries with it a reasonable degree of discretion about the location of court offices.” In re Assignment of Courtrooms, 715 N.E.2d at 375. However, as the special judge correctly observed although “the Trustee ... bear[s] the duty to provide for the small claims court, [the relevant statutes] do not grant the Trustee the unilateral power or authority to relocate the Court without consulting the presiding judge or involving the Board in the decision to relocate the Court.” App. at 39 (emphasis in original). As for resort to the extraordinary remedy of mandate, it is true that “there is no Indiana code provision granting the presiding judge the authority to veto or override any final decision to move a court.” Id. Nonetheless, “[i]f the separation of powers is to be maintained, it is essential that the judicial branch [of] government not be throttled by either the legislative or administrative branches, and that the courts be empowered to mandate what is reasonably necessary to discharge their duties.” McAfee v. State ex rel Stodola, 258 Ind. 677, 284 N.E.2d 778, 782 (1972).

In essence, although the Township and the Small Claims Court judge exercise joint authority with respect to the location of the court facility, the question presented is how to resolve a dispute over the exercise of that joint authority. The special judge reached a common sense resolution: “unless and until Center Township engages in a collaborative decision-making process involving all three co-equal branches of government, Center Township should not be permitted to relocate the Court to the Carson Center.” App. at 46. The Township counters that its decision to move the court’s location was taken only after a public meeting in compliance with Indiana statutory authority, thus giving “a voice to all three co-equal branches of government.” Br. of Appellants at 38 (internal quotation marks omitted). Indeed, the record reflects the Board conducted a public hearing concerning the location of the court and entered an order for the court’s relocation. But, as the special judge found and as the evidence of record supports:

The Trustee’s process that ultimately lead to a Board order to relocate the Small Claims Court failed to adequately involve the Court and failed to adequately study and analyze the impact of the move. Indeed, Trustee Akers determined that he would move the Court out of the City-County Building before consulting with the Court or the Board. While the Trustee and Board permitted Judge Scott to present facts and concerns during various Board meetings, these concerns were dismissed without investigation by the Trustee or Board. Moreover, neither the Trustee nor the Board engaged in a meaningful dialogue or exchange of ideas with the presiding judge regarding the relocation of the Court. Ultimately the suggestions and efforts of the presiding judge were ignored.
The Court made efforts to follow appropriate steps to analyze the appropriateness of the relocation of the Court and the concern for public access to justice.

App. at 40. In the end, absent the Township (i) “adequately involving] the court,” (ii) “engaging] in meaningful dialogue or exchange of ideas with the presiding judge” and instead (iii) “ignoring]” the court’s “suggestions and efforts” the Judge of the Center Township Small Claims Court was left only with the option of mandate where she was of the view that there was a clear and present danger of impairment of the court’s operation. This leads to our next discussion.

The Township contends the Mandate Order should be set aside because relocating the court presents no clear and present danger of impairment of court operations. The Township rests this conclusion on the present condition of the court facilities in the City-County Building, its supposition that such conditions will not be ameliorated by expanded and reconfigured space and furniture, the availability of the newly-renovated Carson Center space, and the fact that most court employees support the move. See Br. of Appellants at 45-46, 49-51. On review of this mandate order, our job is not to assess whether the Carson Center would be a “better” location for the court. Rather, we must determine whether the record contains substantial evidence of probative value that there is a clear and present danger of impairment to the court or court functions if the court is not maintained and reconfigured in its present location. We find that it does.

As we previously observed, an overriding issue presented in this case is the fundamental question of access to justice. Indeed, providing such access is a constitutionally-mandated function of Indiana courts. See Ind. Const, art. 1, § 12 (“All courts shall be open; and every person, for injury done to him in his person, property, or reputation, shall have remedy by due course of law. Justice shall be administered freely, and without purchase; completely, and without denial; speedily, and without delay.”). It is undisputed that the Small Claims Court is presently centrally located in Center Township and is in close proximity to all (and within easy walking distance to most) public bus routes in the township and Marion County. Further, there is no dispute that the court is located in the same building as multiple other Marion County Courts and public services frequently used by litigants. We also find it relevant that the court in this case, as with most small claims courts, hears a substantial volume of consumer collection cases and landlord-tenant disputes such as evictions. See Tr. at 185, 310. According to a comprehensive study of legal needs of the poor in Indiana, it is precisely these types of cases that most frequently plague low-income Hoosiers. See Indiana State Bar Association, et al., Unequal Access to Justice: A Comprehensive Study of the Civil Legal Needs of the Poor in Indiana 80-83 (2008), available at www. indianalegalservices.org/files/ilsi-unequal-access-2008-full.pdf. And it is also worth noting that the Center Township Small Claims Court is not only in the same building, but is on the same floor as courts handling paternity and child support, domestic violence, and protective orders— services also of particular relevance to this demographic. See id. at 81-85.

In sum, we conclude the record is replete with probative evidence that moving the Center Township Small Claims Court away from its present location poses a clear and present danger to access to justice for the litigants it serves, and that maintaining and upgrading the Court in its present location is reasonably necessary to preserve that access. And although the Township does not object to other components of the special judge’s decree, see Br. of Appellants at 40, we think it bears emphasizing that we specifically affirm the special judge’s order that the Township shall allocate funds to hire two additional Court employees, that the Trustee shall relinquish control over Court functions, and that authority over its employees and its financial operations shall be vested solely in the Court. See supra n. 6; see also Task Force Report at 19, 24, 25 (concluding that township courts must have sole authority over their employees and their financial operations).

II. Attorney Fees

Finally, we address attorney fees. Because the proper delivery of judicial services is often at stake in Trial Rule 60.5 proceedings, we have acknowledged the propriety of reasonable compensation for attorneys who represent courts in such matters. See St. Joseph Cnty. Cmm’rs., 929 N.E.2d at 720 (citing Montgomery Cnty. Council, 873 N.E.2d at 1049; Kramer v. Hancock Cnty. Ct., 448 N.E.2d 1190, 1192 (Ind.1983)). The factors to be considered in determining the reasonableness of a fee include the following: “(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and (8) whether the fee is fixed or contingent.” Id. (quoting Ind. Professional Conduct Rule 1.5(a)). In this case the special judge’s decree provided in relevant part: “The Center Township, by and through its Trustee, is responsible for the reasonable attorney fees and expenses incurred by each side in this case. The parties are directed to present their fee petitions within twenty (20) days of the issuance of this Order.” App. at 48. Thereafter the attorneys representing the Court presented their petition for fees and expenses to the special judge. In response, the attorneys representing the Township objected to the petition as premature and requested a stay pending this Court’s review of the mandate order. App. at 283-85. The special judge granted the stay. App. at 287-88.

On review the Township makes no claim concerning the reasonableness of the fees and expenses requested, reserving any such issue for an evidentiary hearing before the special judge. Instead, in a one-paragraph argument, the Township contends “This Court should deny Judge Scott’s fee request.” Br. of Appellants at 51. The Township’s contention is premised on the fact that over and above her statutory salary, Judge Scott also received additional revenue for performing wedding ceremonies in her capacity as a judge. According to the Township Judge Scott’s motivation in issuing the order of Mandate was to prevent the Court from relocating in an effort “to preserve and protect her own personal stream of income.” Id. We make the following observations. First, although the special judge determined that “[o]ne consideration” for Judge Scott not wanting the Court to relocate to the Carson Center was the potential loss of wedding income, the special judge specifically found, “[t]he concern that Judge Scott’s Mandate Action was motivated by a perceived loss of wedding income results from speculation and is unsupported by credible evidence.” App. at 26 (emphasis added). Second, and more importantly the question here is not Judge Scott’s motivation, but rather whether mandate was necessitated by a clear and present danger of impairment of the court’s operation. See St. Joseph Cnty. Cmm’rs., 929 N.E.2d at 710. As recounted above, there was sufficient evidence presented to the special judge that the mandated action was reasonably necessary for the operation of the court and court-related functions, and that any other governmental interests were not so severely and adversely affected by the order as to require Order of Mandate be set aside. See In re Assignment of Courtrooms, 715 N.E.2d at 375; Morgan Cir. Ct., 550 N.E.2d at 1304. We therefore affirm the special judge’s decree concerning attorney fees and expenses.

Conclusion

We affirm the decree of the special judge.

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

      . Small claims are defined as "[c]ivil actions in which the amount sought or value of the property sought to be recovered is not more than six thousand dollars ($6,000).” Ind. Code § 33-28-3-4.

      . The entities include: Center Township; Decatur Township; Franklin Township; Lawrence Township; Perry Township; Pike Township; Warren Township; Washington Township; and Wayne Township.

      . In January 2012 this Court created the Marion County Small Claims Task Force to "investigate whether litigants in those courts are denied access to justice that is provided to small claims litigants in Indiana’s other 91 counties and whether the township trustees exert control over the courts’ financial and personnel matters in a manner that threatens judicial independence.” Id. at 1. After conducting three public hearings over a period of three weeks and gathering information and input from a variety of sources, including judges, attorneys, small claims plaintiffs and defendants, community leaders, local bar associations, and concerned citizens throughout Marion county, the task force — composed of Judge John G. Baker of the Indiana Court of Appeals and Senior Judge Betty Barteau of the Indiana Court of Appeals — submitted a detailed report that included findings of fact describing serious problems and procedures in the Marion County Small Claims Courts along with recommendations to remedy those problems. Id. at 1-2. We express our appreciation to the task force for its excellent work. Also, we cite that document throughout this opinion as "Task Force Report ”; it is available online at www.in.gov/judiciary/3844.htm. Although the report was not made a part of the record by the parties, the special judge appointed to hear this case took judicial notice of the report, and in the absence of objection from either party we have done likewise.

      . Three days after the Court denied the Township’s motion to dismiss, the Township contracted with a construction firm to proceed with the renovation of the Carson Center space for the Small Claims Court at a cost of $459,000.00.

      . When a mandate order is issued, the matter “shall be set for trial on the merits of such order to show cause” unless the mandated party or parties waive the right to trial and agree to make such appropriation or payment. T.R. 60.5(B). The purpose of this trial is to "provide a factual foundation, developed in a suitable adversary atmosphere, to permit a rational decision of the issues.” State ex rel. Lake Cnty. Council v. Lake Cnty. Ct., 266 Ind. 25, 359 N.E.2d 918, 920 (1977). T.R. 60.5(B) further provides that to heár the mandate action the Supreme Court "shall ... appoint as special judge an attorney who is not a current or former regular judge and who does not reside nor regularly practice law in the county issuing the Order of Mandate of Funds or in any county contiguous thereto.”

      . In pertinent part the Decree specifically provided:
      The Current Small Claims Court facility is in need of improvements. It is ordered that the location of the Court shall remain at the current location in the City-County Building. It is further ordered that Center Township shall provide reconfigured court space and updated furniture and equipment to the Court to ensure the Court facility is adequate in accordance widi Indiana Code § 33-34-6-1.
      Center Township is hereby ordered to allocate funds to provide two additional full time staff to the Center Township Small Claims Court. In order to give practical, permanent, and lasting effect to the Mandate Order, the Trustee is ordered to relinquish control over the Small Claims Court's operations to the Court. Specifically, the Court shall maintain authority and financial control by:
      1)Preparing an annual Court budget for submission to the Center Township Board and Trustee;
      2) Managing the Court’s bank account and issuing checks without supervision of involvement of the Trustee; and
      3) Managing financial records and submitting mandatory financial reports to state entities.
      Specifically, the Court shall maintain authority and control of its staff by:
      1) Supervising the staff on a day-to-day basis and making decisions as to specific personnel policies applicable to Court staff without supervision or involvement of the Trustee; and
      2) Making decisions as to hiring and termination of staff members, in accordance with the Court's personnel policies without supervision or involvement of the Trustee.
      App. at 47-48. With respect to the authority of the Court maintaining control over its finances, we would add that of course any such authority must be exercised consistent with the requirements of the State Board of Accounts.

      . More specifically the statute provides:
      The township trustee shall provide a courtroom and an office for each judge in a convenient location within the township that has: (1) adequate access; (2) sufficient parking facilities; (3) a separate and appropriate courtroom; (4) proper space and facilities for the bailiff, clerks, and other employees; and (5) enough room for flies and supplies.
      I.C. § 33-34-6-1. Further, the Township is required to furnish equipment, supplies, and staff to the small claims court. See I.C. §§ 33-34-6-2 and -3.

      . Indiana Code section 33-34-1-7 provides:

        A hearing must be conducted to obtain evidence, opinions, advice, and suggestions from public officials and the general public concerning:
      (1) whether a small claims court should be established or abolished in the township, if the township has a population of less than fifteen thousand (15,000) persons;
      (2) whether the small claims court should be full time or part time;
      (3) the location of the small claims court courtroom and offices; and
      (4) other relevant matters.
      Section 33-34-1-9 further requires:
      Not more than two (2) weeks after a hearing is conducted under section 7 of this chapter, the township board shall, after considering the evidence, opinions, advice, and suggestions presented at the hearing, enter an order concerning:
      (1) whether a small claims court shall be established or abolished in the township if the township has a population of less than fifteen thousand (15,000) persons;
      (2) whether the small claims court if any, shall function full time or part time;
      (3) the location of the small claims court courtroom and offices under IC 33-34-6-1; and
      (4) other relevant matters.

      . Contrary to the Township's apparent position we would encourage cooperation and dialogue between judges of the Small Claims Courts and their Township governing bodies. Indeed this very process resulted in a compromise between Judge Scott and former Trustee Drummer thereby circumventing a prior action for mandate.

      . We also observe that effective March 1, 2013 Rules governing the Marion County Small Claims Courts were adopted prohibiting judges from retaining fees for weddings as their own personal income. See Addendum to Appellant's Reply at 12 (reproducing Marion County Small Claims Court Rule LR49-SC00-703). Comments to the rules declare in pertinent part: "the Rule follows the Task Force recommendation and requires that wedding fees for weddings performed in the Court or on Court time be deposited in the Township General Fund.” Id. at 13.


author: DICKSON, Chief Justice.

text:
    Valentin ESCOBEDO, Appellant (Defendant), v. STATE of Indiana, Appellee (Plaintiff).
    No. 71S03-1306-CR-455.
    Supreme Court of Indiana.
    June 28, 2013.
    Jeffrey L. Sanford, South Bend, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Angela N. Sanchez, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   DICKSON, Chief Justice.

Sentenced to an aggregate term of fifty-three years upon convictions for Battery, a class A felony, and Neglect of a Dependent as a class D felony, the defendant appealed asserting claims of error in the trial court’s evidentiary rulings and seeking appellate sentence review and revision under Indiana Appellate Rule 7(B). The Court of Appeals affirmed. Escobedo v. State, 987 N.E.2d 103 (Ind.Ct.App.2013). We now grant transfer to address a single point.

In rejecting the defendant’s request for appellate sentence revision, the Court of Appeals summarized its analysis as follows: “In other words, the maximum sentence here can be justified as a deontological response giving voice to a community’s outrage, based on the facts and circumstances of the crime.” Id. at 120. We disagree and disapprove of consideration of a community’s outrage in the determination or review of a criminal sentence. Notwithstanding this reference, however, we agree with the ultimate conclusion of the Court of Appeals that the sentence imposed by the trial court is appropriate and should be affirmed.

In all other respects we summarily affirm the opinion of the Court of Appeals. Indiana Appellate Rule 58(A)(2).

RUCKER, DAVID, MASSA, and RUSH, JJ., concur.


text:
    In the Matter of David J. SCOTT, Respondent.
    No. 33S00-1301-DI-76.
    Supreme Court of Indiana.
    June 28, 2013.
   PUBLISHED ORDER APPROVING STATEMENT OF CIRCUMSTANCES AND CONDITIONAL AGREEMENT FOR DISCIPLINE

Pursuant to Indiana Admission and Discipline Rule 23(11), the Indiana Supreme Court Disciplinary Commission and Respondent have submitted for approval a “Statement of Circumstances and Conditional Agreement for Discipline” stipulating agreed facts and proposed discipline as summarized below:

Stipulated Facts: Based on an incident of domestic violence on December 28, 2011, involving his wife and witnessed by his minor children, Respondent pled guilty to domestic battery, a class A misdemeanor. He was placed on probation for one year. The parties cite the following facts in mitigation: (1) Respondent has no disciplinary history; (2) Respondent self-reported his arrest and conviction and was cooperative with the Commission; (3) Respondent voluntarily contacted the Indiana Judges and Lawyers Assistance Program after his arrest, entered into a monitoring agreement, and is fully compliant with it; (4) Respondent successfully completed his criminal probation; and (5) Respondent demonstrated his remorse by apologizing to his wife and by his eager participation in rehabilitative assistance.

Violation: The parties agree that Respondent violated Indiana Professional Conduct Rule 8.4(b), which prohibits committing a criminal act that reflects adversely on the lawyer’s trustworthiness or fitness as a lawyer.

Discipline: The parties propose the appropriate discipline is a public reprimand. The Court, having considered the submissions of the parties, now approves the agreed discipline and imposes a public reprimand for Respondent’s misconduct.

The costs of this proceeding are assessed against Respondent. With the acceptance of this agreement, the hearing officer appointed in this case is discharged.

The Clerk is directed to forward a copy of this Order to the hearing officer, to the parties or their respective attorneys, and to all other entities entitled to notice under Admission and Discipline Rule 23(3)(d). The Clerk is further directed to post this order to the Court’s website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court’s decisions.

All Justices concur.


text:
    In the Matter of John Carroll ECKERT, Respondent.
    No. 39S00-1307-DI-458.
    Supreme Court of Indiana.
    June 28, 2013.
   PUBLISHED ORDER ACCEPTING RESIGNATION AND CONCLUDING PROCEEDING

Respondent has tendered to this Court an affidavit of resignation from the bar of this State, pursuant to Indiana Admission and Discipline Rule 23(17).

IT IS THEREFORE ORDERED that the resignation from the bar of this State tendered by Respondent is accepted effective immediately. The Clerk of this Court is directed to record Respondent’s resignation on the Roll of Attorneys. Respondent shall fulfill all the applicable duties under Admission and Discipline Rule 23(26)(d).

IT IS FURTHER ORDERED that any attorney disciplinary proceedings pending against Respondent are hereby dismissed as moot because of Respondent’s resignation.

Respondent shall be ineligible to petition for reinstatement to the practice of law for five years from the date of this order. See Admis. Disc. R. 23(4)(a). If Respondent seeks reinstatement, the misconduct admitted in Respondent’s affidavit of resignation, as well as any other allegations of misconduct and whether Respondent has made restitution, may be addressed in the reinstatement process. Approval of a petition for reinstatement is discretionary and requires clear and convincing evidence of the petitioner’s remorse, rehabilitation, and fitness to practice law. See Admis. Disc. R. 23(4)(b).

The costs of this proceeding are assessed against Respondent.

The Clerk is directed to forward a copy of this Order to the parties or their respective attorneys and to all other entities entitled to notice under Admission and Discipline Rule 23(3)(d). The Clerk is further directed to post this order to the Court’s website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court’s decisions.

All Justices concur.


text:
    In the Matter of Noah HOLCOMB, Jr., Respondent.
    No. 45S00-1304-DI-248.
    Supreme Court of Indiana.
    June 28, 2013.
   PUBLISHED ORDER APPROVING STATEMENT OF CIRCUMSTANCES AND CONDITIONAL AGREEMENT FOR DISCIPLINE

Pursuant to Indiana Admission and Discipline Rule 23(11), the Indiana Supreme Court Disciplinary Commission and Respondent have submitted for approval a “Statement of Circumstances and Conditional Agreement for Discipline” stipulating agreed facts and proposed discipline as summarized below:

Stipulated Facts: Count 1. In November 2007, Respondent’s office operating account was levied by the IRS. From November 2007 through March 2008, Respondent used his attorney trust account as both a trust account and an office operating account. During this period: (1) Respondent made 21 disbursements that were not related to any client but were instead for Respondent’s benefit; (2) on five occasions, he disbursed funds to himself without creating or maintaining any records regarding the client to whom the disbursement pertained; (3) on five occasions, he received lump sum payments on behalf of clients but failed to deposit the entire amount into the account; and (4) on five occasions, he disbursed funds from the account in excess to the funds he held for each corresponding client.

Count 2. In 1999, Respondent was retained to represent an unsupervised decedent’s estate for $150 an hour. Respondent failed to do the following in a timely manner: liquidate stock, redeem fully mature U.S. savings bonds, and pay inheritance taxes — all of which resulted in losses to the estate. Respondent also paid himself about $80,000 from the estate, the vast majority of which he did not earn.

Aggravating and mitigating facts. The parties cite the following facts in aggravation: (1) Respondent’s misconduct was due to a selfish motive; (2) Respondent committed multiple offenses; (3) Respondent is an experienced lawyer; and (4) Respondent has not made restitution to the victim in Count 2. This office also notes the Respondent received a private reprimand in 1997 in Cause No. 45S00-9706-DI-373. The parties cite the following fact in mitigation: Respondent was cooperative with the Commission.

Violations: The parties agree that Respondent violated these Indiana Professional Conduct Rules prohibiting the following misconduct:

1.3: Failure to act with reasonable diligence and promptness.
1.5(a): Making an agreement for, charging, or collecting an unreasonable fee.
1.15(a): Commingling client and attorney funds.
1.15(c): Disbursing funds from a trust account for the attorney’s personal use.
1.15(d): Failure to deliver promptly to a client funds the client is entitled to receive.
8.4(b): Committing a criminal act (conversion) that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer.
8.4(c): Engaging in conduct involving dishonesty, fraud, deceit or misrepresentation.
8.4(d): Engaging in conduct prejudicial to the administration of justice.

Ind. Admission and Discipline Rules:

23(29)(a)(2): Failure to create or retain sufficiently complete trust account records.
23(29)(a)(3): Failure to create or retain sufficiently detailed client ledgers.
23(29)(a)(4): Failure to deposit client funds intact and failure to create or retain sufficiently detailed records.
23(29)(a)(5): Disbursing payments from trust account using an internet payment system. (The rule states that withdrawals shall be made only by wire transfer or by check.)

Discipline: This Court has disbarred attorneys who committed the type of misconduct to which Respondent has admitted. See, e.g., Matter of Patterson, 969 N.E.2d 593 (Ind.2012) (conversion of client funds). The discipline the Court would impose for Respondent’s misconduct might have been more severe than proposed by the parties had this matter been submitted without the Commission’s agreement. We note, however, that regardless of the date on which Respondent is eligible to petition for reinstatement, reinstatement is discretionary and requires clear and convincing evidence of the attorney’s remorse, rehabilitation, and fitness to practice law. See Admis. Disc. R. 23(4)(b). Moreover, the parties agree that restitution should be a condition for Respondent’s reinstatement. With this in mind, and in light of the Commission’s assessment that the proposed discipline is sufficient under the circumstances of this case, the Court now APPROVES and ORDERS the agreed discipline.

For Respondent’s professional misconduct, the Court suspends Respondent from the practice of law in this state for a period of not less than three (3) years, without automatic reinstatement, beginning August 2, 2013. Respondent shall not undertake any new legal matters between service of this order and the effective date of the suspension, and Respondent shall fulfill all the duties of a suspended attorney under Admission and Discipline Rule 23(26). At the conclusion of the minimum period of suspension, Respondent may petition this Court for reinstatement to the practice of law in this state, provided Respondent pays the costs of this proceeding, fulfills the duties of a suspended attorney, and satisfies the requirements for reinstatement of Admission and Discipline Rule 23(4) and (18).

The costs of this proceeding are assessed against Respondent. With the acceptance of this agreement, the hearing officer appointed in this case is discharged.

The Clerk is directed to forward a copy of this Order to the hearing officer, to the parties or their respective attorneys, and to all other entities entitled to notice under Admission and Discipline Rule 23(3)(d). The Clerk is further directed to post this order to the Court’s website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court’s decisions.

All Justices concur, except DAVID and RUSH, JJ. who dissent, believing Respondent should be disbarred.


text:
    In the Matter of Ronald E. WELDY, Respondent.
    No. 49S00-1103-DI-120.
    Supreme Court of Indiana.
    June 28, 2013.
   PUBLISHED ORDER APPROVING STATEMENT OF CIRCUMSTANCES AND CONDITIONAL AGREEMENT FOR DISCIPLINE

Pursuant to Indiana Admission and Discipline Rule 23(11), the Indiana Supreme Court Disciplinary Commission and Respondent have submitted for approval a “Statement of Circumstances and Conditional Agreement for Discipline” stipulating agreed facts and proposed discipline as summarized below:

Stipulated Facts: Count 1. In 2007, Client 1 retained Respondent to represent her in a wage claim action. Respondent thereafter neglected the case and failed to communicate with Client 1 despite her repeated requests for information. At one point, Client 1 went to Respondent’s office and found he had moved without providing her with his new address. Respondent did not inform Client 1 that her case had been subject to a T.R. 41(E) “call of the docket” for lack of prosecution in 2009. In November 2011, Respondent praeciped for a trial date. A bench trial was held on November 29, 2012. Client 1 was pleased with Respondent’s efforts. However, on February 25, 2013, the trial court issued a ruling adverse to Client 1, and a motion to correct error is pending.

Count 2. In 2005, Client 2 retained Respondent to represent her in an employment discrimination action. The fee agreement provided that Respondent would be paid the amount of any award designated as attorney fees plus 20% of the remainder of the award, and that Respondent and Client 2 “must agree prior to any settlement the amount of the attorney fees to be designated in the settlement if said attorney fees are not dictated by the defendant.” The case was settled for a lump sum payment of $25,000. Afterward, Respondent presented Client 2 with a statement that would have designated $8,000 of the settlement as attorney fees, without explanation of the advantages and disadvantages of the designation. Client 2 did not agree to this or any other amount as attorney’s fee. After Client 2 filed for bankruptcy relief, Respondent served as attorney for the bankruptcy trustee, and the bankruptcy court determined his fee for his services.

Count 3. In response to a targeted solicitation letter from Respondent, Client 3 retained him to pursue a wage claim action in 2008. Respondent explained to Client 3 that his fee would be a percentage of the amount recovered, including statutory attorney fees. Respondent did not send a written fee agreement for Client 3 to sign. The claim was settled for $3,291.69 plus $675 in statutory attorney fees. Respondent claimed 40% of the total ($1,586.68) as his fee, which Client 3 disputed. On May 30, 2013, counsel for Respondent spoke with Client 3 about the fee dispute. As a result of this conversation, Respondent refunded $911.68 to Client 3.

Count 4- In 2006, Respondent filed a wage claim action on behalf of Client 4 and made no substantive progress for nearly a year. Client 4 terminated the representation but Respondent did not withdraw his appearance. When he was later re-hired, Respondent failed to advance the case, at one point mistakenly telling Client 4 that a motion for summary judgment had been filed when it had not been. The case was dismissed on a T.R. 41(E) call of the docket in late 2009. Respondent did not inform Client 4 of the dismissal. Prior to the dismissal, Respondent had learned that the defendant was no longer in business and obtaining a judgment would not have resulted in the collection of any damages.

Count 5. In January 2008, Client 5 entered into a written contingent fee agreement for Respondent in a wage claim action. He then failed to respond to her requests for information with her for over a year. (The outcome of this case is not disclosed.) In May 2009, Client 5 hired him to represent her in a second wage claim action, with no written fee agreement. In September 2009, the second claim settled for $4,800, with $2,500 designated as statutory attorney fees. Respondent then asked Client 5 to sign an agreement that would have entitled him to $2,938.50 in fees. When Client 5 declined, Respondent refused to communicate with Client 5 for about three months. In response to Client 5’s pleas, Respondent completed the settlement paperwork. When the employer sent Respondent a check for $4,800 in March 2010, Respondent kept the check in a drawer and filed a small claims action against Client 5. After trial in October 2010, the court ordered him to deposit the entire amount of the settlement check with the court. The court eventually awarded Client 5 $3,787.50 and Respondent $1,012.50.

Count 6. In 2007, Respondent agreed to represent Client 6 in a proposed class action against Ciarían Health Partners, Inc. (“Ciarían”) relating to alleged violations of Indiana’s wage and hour laws. In support of a motion to compel discovery responses, Respondent asserted that counsel for Cia-rían had acknowledged that certain discovery responses were due on a certain date, knowing that this assertion was untrue. The trial court imposed sanctions under T.R. 37(A)(4). In 2009, Ciarían and Client 6 settled their dispute, rendering the purported class without a representative. Respondent filed an appeal, purportedly on behalf of Client 6, challenging the sanctions against Respondent and raising two class action issues. Client 6 then died. The Court of Appeals ruled that class action issues were moot and affirmed the sanctions. Respondent filed petitions for rehearing and for transfer, purportedly behalf of Client 6, which were denied. Two Justices indicated that they would consider a petition for damages, including attorney fees. The Court of Appeals then awarded Ciarían fees and costs against Respondent under Appellate Rules 66(E) and 67 for frivolous and bad faith appellate filings. The Court of Appeals found, among other things, that Respondent persisted in mis-characterizing nature of his motion to compel and that he failed to acknowledge the general rule that dismissal is required if the claims of a named plaintiff become moot prior to class certification. On February 4, 2013. Ciarían filed a petition in the trial court seeking $40,000.00 in attorney fees and costs, which is pending.

Aggravating and mitigating facts. The parties cite the following fact in aggravation: Some of Respondent’s misconduct was due to a dishonest or selfish motive. The parties cite the following facts in mitigation: (1) Respondent has no disciplinary history; (2) Respondent was cooperative with the Commission; (3) through no fault of Respondent, there was a delay in filing at least some of charges against him; (4) Respondent’s relative inexperience in the practice of law contributed to his misconduct to some extent; and (5) Respondent apologized to Clients 2, 3, 4, and 5 for his misconduct by letters on June 7, 2013.

Violations: The parties agree that Respondent violated these Indiana Professional Conduct Rules prohibiting the following misconduct:

1.2(a): Failure to abide by a client’s decision concerning the objectives of representation.
1.3: Failure to act with reasonable diligence and promptness.
1.4(a)(3): Failure to keep a client reasonably informed about the status of a matter.
1.4(a)(4): Failure to comply promptly with a client’s reasonable requests for information.
1.4(b): Failure to explain a matter to the extent reasonably necessary to permit a client to make informed decisions.
1.5(b): Failure to communicate the basis or rate of the fee for which a client will be responsible before or within a reasonable time after commencing the representation.
1.5(c): Failure to disclose to a client the method by which a contingent legal fee will be determined.
1.7(a)(2): Representing a client when the representation may be materially limited by the attorney’s own self-interest.
1.15(e): Failure to properly secure disputed property until the dispute is resolved.
1.16(a)(3): Continuing representation of a client after the lawyer is discharged.
3.1: Asserting a position for which there is no non-frivolous basis in law or fact.
3.2: Failure to expedite litigation consistent with the interests of a client.
3.3(a)(1): Knowingly making a false statement of fact or law to a tribunal.
8.4(c): Engaging in conduct involving dishonesty, fraud, deceit or misrepresentation.
8.4(d): Engaging in conduct prejudicial to the administration of justice.

Discipline: The Court, having considered the submission of the parties, now approves the following agreed discipline.

For Respondent’s professional misconduct, the Court suspends Respondent from the practice of law for a period of 180 days, beginning August 9, 2013, with 90 days actively served and the remainder stayed subject to completion of at least one year of probation. The Court incorporates by reference the terms and conditions of probation set forth in the parties’ Conditional Agreement, which include:

(1) Respondent shall modify all fee agreements to remove provisions that would require Respondent to negotiate with a client, after execution, any factor that could be used to determine the amount of the fee.
(2) Respondent shall cooperate with a monitor, who will supervise Respondent and submit quarterly reports to the Commission.
(3) Respondent shall complete at least 18 hours of CLE training on applied professionalism, law office management and/or ethics relating to the attorney-client relationship.
(4) Respondent shall have no violations of any rule of the Indiana Supreme Court governing the duties and obligations of an attorney during his probation and shall have in place measure to ensure compliance with these responsibilities.
(5)If it is established that Respondent violated his probation, he shall be required to actively serve the balance of the stayed suspension without automatic reinstatement.

Respondent shall not undertake any new legal matters between service of this order and the effective date of the suspension, and Respondent shall fulfill all the duties of a suspended attorney under Admission and Discipline Rule 23(26). Notwithstanding the expiration of the minimum term of probation set forth above, Respondent’s probation shall remain in effect until it is terminated pursuant to a petition to terminate probation filed under Admission and Discipline Rule 23(17.1).

The discipline imposed for Respondent’s misconduct might have been more severe had this matter been submitted without the Commission’s agreement to the proposed discipline. We note that Respondent’s efforts to apologize to and make amends with some of the clients he wronged came more than two years after the Commission filed its verified complaint against him. However, the Court approves the agreement in light of the Commission’s assessment that the proposed discipline, which includes 90 days active suspension followed by rigorous oversight by a monitor for a least a year, is sufficient under the circumstances of this case.

The costs of this proceeding are assessed against Respondent. With the acceptance of this agreement, the hearing officer appointed in this case is discharged.

The Clerk is directed to forward a copy of this Order to the hearing officer, to the parties or their respective attorneys, and to all other entities entitled to notice under Admission and Discipline Rule 23(3)(d). The Clerk is further directed to post this order to the Court’s website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court’s decisions.

All Justices concur, except, DICKSON, C.J., and RUSH, J., who dissent, believing the penalty to be insufficient for the severity of the offense.


text:
    In the Matter of Elden E. STOOPS, Respondent.
    Nos. 85S00-1107-DI-460, 85S00-1209-DI-505.
    Supreme Court of Indiana.
    June 28, 2013.
   PUBLISHED ORDER APPROVING STATEMENTS OF CIRCUMSTANCES AND CONDITIONAL AGREEMENTS FOR DISCIPLINE

Pursuant to Indiana Admission and Discipline Rule 23(11), the Indiana Supreme Court Disciplinary Commission and Respondent have submitted for approval a “Statement of Circumstances and Conditional Agreement for Discipline” in each of these cases, which we hereby consolidate for the purpose of imposing discipline, stipulating agreed facts and proposed discipline as summarized below:

Cause No. 85S00-1107-DI-460

Stipulated Facts: Respondent represented the uncle of a child who wished to obtain legal custody of the child. On November 4, 2009, Respondent filed a motion for emergency relief in a pending paternity action without complying with the requirements of Trial Rule 65(B) that he certify efforts made to notify opposing parties or proffer reasons why such notice should not be required. The court set a hearing date and entered an order giving the uncle temporary custody. Respondent sent copies of the papers he filed to the father but failed to serve them on or contact the father’s counsel of record. Counsel later faxed Respondent a request for information. Counsel and Respondent met before the date set for hearing and worked out an agreement regarding the child’s legal custody.

Violations: The parties agree that Respondent violated these Indiana Professional Conduct Rules prohibiting the following misconduct:

3.5(b): Engaging in an improper ex parte communication with a judge.
8.4(d): Engaging in conduct prejudicial to the administration of justice.
8.4(f): Assisting a judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law.

Cause No. 85S00-1209-DI-505

Stipulated Facts: In May 2009, Respondent filed an application on behalf of Grandmother and BR to name them as co-guardians of Grandmother’s two minor granddaughters (“the wards”). BR was the half-brother of the wards. The trial court granted the application on May 26, 2009. Difficulties later developed among the wards, BR, and BR’s girlfriend. On August 19, 2010, Respondent filed, on behalf of Grandmother, a request for an emergency hearing, advising the court that BR should be removed a co-guardian. BR’s attorney sent a letter to Respondent advising him of the apparent conflict of interest if he continued his representation of either party. Another attorney entered his appearance for Grandmother, but the record does not show whether Respondent ever withdraw his appearance for either Grandmother or BR. In 2012, Respondent filed a second guardianship application on behalf of Grandmother, and he filed a motion to dismiss the first guardianship case, which was granted.

Violation: The parties agree that Respondent violated Indiana Professional Conduct Rule 7(a)(1), which prohibits representing a client when the representation is directly adverse to another client.

Facts m aggravation and mitigation. The parties cite the following fact in aggravation: Respondent had substantial experience in the practice of law at the time of the misconduct. The parties cite the following facts in mitigation: (1) Respondent has no disciplinary history; (2) Respondent was cooperative with the Commission; (3) Respondent is remorseful; (4) Respondent’s misconduct was not due to a dishonest or selfish motive; and (5) Respondent’s sole motivation in Cause No. 85S00-1209-DI-505 was to ensure the safety of the wards’ persons and estates.

Discipline: The parties propose the appropriate discipline is a public reprimand. The Court, having considered the submissions of the parties, now approves the agreed discipline and imposes a public reprimand for Respondent’s misconduct.

The costs of these proceeding are assessed against Respondent. With the acceptance of this agreement, the hearing officer appointed in these cases is discharged.

The Clerk is directed to forward a copy of this Order to the hearing officer, to the parties or their respective attorneys, and to all other entities entitled to notice under Admission and Discipline Rule 23(3)(d). The Clerk is further directed to post this order to the Court’s website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court’s decisions.

All Justices concur.


author: PER CURIAM.

text:
    Michael CHAMBERS, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
    No. 53S01-1307-CR-459.
    Supreme Court of Indiana.
    July 2, 2013.

      Noah T. Williams, Stuart K. Baggerly, Bloomington, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Katherine Modesitt Cooper, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   PER CURIAM.

Following a bench trial, Michael Chambers was convicted of two counts of sexual misconduct with a minor as class B felonies. See Ind.Code § 35-42-4-9. The sentencing range for each count is six to twenty years imprisonment; the advisory term is ten years. See I.C. § 35-50-2-5. In sentencing Chambers to maximum consecutive terms (a total of forty years executed), the trial court found “substantial aggravating circumstances” and noted the following information. (See Tr. pp. 273-76.)

Chambers had a criminal history that included felony convictions for forgery in 1999 and 2001, fraud in 1999, and theft in 2001, 2004 and 2012, and misdemeanor convictions for furnishing alcohol to a minor in 2004 and possession of marijuana in 2010. In addition, the trial court considered it “reflective of [Chambers’s] character” that a number of other charges had been filed against him, even if the charges had been dismissed. Those charges in-eluded conversion, receiving stolen property, fraud, theft, intimidation, forgery twice, check deception, habitual offender enhancements, possession of paraphernalia, burglary and criminal mischief. Chambers had shown a history of failure of rehabilitative efforts, the trial court said, by having violated probation in 1999, 2000, and 2004, and parole in 2010, and having been on parole when he committed the instant offenses. His conduct of violating probation and parole and his behavior while incarcerated showed a certain disrespect for authority, the trial court said.

In addition, the trial court noted, the victim in this case had diminished mental capacity and did not have the same abilities of other fourteen or fifteen year olds. The offenses occurred on different days in different locations and caused the girl some pain. Chambers, who was in his thirties, had been living in the girl’s home at the time; his fiancee was a best friend of the girl’s mother, and the mother (who had four daughters) had allowed Chambers and his fiancee to live with the family rent-free because they had nowhere else to stay. The trial court found this violation of trust an aggravating circumstance. The trial court found no mitigating circumstances.

A majority of the Court of Appeals panel revised the sentence to concurrent terms of twenty years, concluding that the forty-year executed sentence was an outlier in comparison to Walker v. State, 747 N.E.2d 536 (Ind.2001), and Harris v. State, 897 N.E.2d 927, 930 (Ind.2008). See Chambers v. State, No. 53A01-1209-CR-401, 2013 WL 782606 (Ind.Ct.App. Feb. 27, 2013) (mem. dee). The dissenting opinion, on the other hand, noted that Chambers has a more significant criminal history than the defendants in those cases and that the nature and circumstances of the offenses Chambers committed was not the same.

The authority granted by Article 7, § 4 of the Indiana Constitution permitting appellate review and revision of criminal sentences is implemented through Appellate Rule 7(B). Under this rule and as interpreted by case law, appellate courts may revise sentences — after due consideration of the trial court’s decision — if the sentence is found to be inappropriate in light of the nature of the offense and the character of the offender. See Cardwell v. State, 895 N.E.2d 1219, 1222-25 (Ind.2008); Serino v. State, 798 N.E.2d 852, 856-57 (Ind.2003). The principal role of such review is to attempt to leaven the outliers. Cardwell, 895 N.E.2d at 1225.

Our collective judgment is that the sentence imposed by the trial court in this case is not inappropriate under Appellate Rule 7(B) and does not warrant appellate revision. Accordingly, we grant transfer, affirm the sentence imposed by the trial court, and summarily affirm the decision of the Court of Appeals in all other respects. See App. R. 58(A).

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

RUCKER, J., concurs in result.