author: BAKER, Judge.

text:
    In the Matter of the Termination of the Parent-Child Relationship of S.S.; J.S.; and C.S. (Minor Children) and, T.S. (Mother), Appellants-Respondents, v. The Indiana Department of Child Services, Appellee-Petitioner.
    No. 09A02-1211-JT-936.
    Court of Appeals of Indiana.
    June 27, 2013.

      Lisa M. Traylor-Wolff, Public Defender, Mark Leeman, Public Defender, Logans-port, IN, Attorneys for Appellant.
    Christine M. Redelman, DCS Central Administration, Robert J. HenKe, DCS Central Administration, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BAKER, Judge.

In this case, appellant-respondent T.S. (Mother) argues that she was denied due process when the juvenile court terminated her parental rights to three of her children after denying her motion for a continuance. More particularly, Mother contends that she should have been permitted additional time to be present at the termination hearing because she resides in Florida.

Child protective services from three different states have been involved with Mother and her three children, C.S., S.S., and J.S. (collectively, “the Children”) at some point over approximately the past three years; however, it was the appellee-petitioner Indiana Department of Child Services (DCS) that filed a petition alleging the Children to be Children in Need of Services (CHINS) and eventually filing a petition for the termination of the parent-child relationship between Mother and the Children.

After the Children had been removed from Mother’s care, but before the termination hearing, Mother moved to Florida where she was expecting her fourth child. The DCS and Mother’s attorney communicated with Mother, and she was aware of the date of the termination hearing. Nevertheless, on that day, Mother’s attorney filed a motion for a continuance based on Mother’s absence. The juvenile court denied the motion.

Although Mother’s interest in the care and custody of her children is significant, the State’s interest in protecting these children is also very significant in light of Mother’s inability to protect herself from domestic abuse and to properly attend to the Children’s medical and mental needs. When this is balanced against the low risk of error because Mother was represented by counsel, voluntarily left Indiana, and was aware of the termination hearing, we conclude that she was not denied due process when the juvenile court denied her motion to continue. Accordingly, we affirm.

FACTS

Mother began dating S.S. (Father), when she was fifteen years old and became pregnant with their first child when she was seventeen. The couple had three children who are the subject of these proceedings: C.S. was born on February 7, 2007; S.S. was born on November 26, 2009; and, J.S. was born on October 22, 2010.

In 2010, Florida Child Protective Services (CPS) intervened after Father physically assaulted Mother while she was pregnant with J.S. Father was arrested for aggravated battery on Mother and was sentenced to thirteen months imprisonment. A No Contact Order was issued, but Mother brought J.S. to visit Father twice after his birth. Upon Father’s release in 2011, he was deported to Mexico and is not a party to these proceedings.

At some point in 2011, the family moved to Kentucky. Apparently, Mother and the Children experienced difficulties while residing there because Kentucky CPS intervened. Specifically, an investigation had been ongoing since May 2011. The family had been evicted, was homeless, and Mother was “low functioning.” Appellee’s App. p. 63.

On July 8, 2011, Kentucky CPS requested that the DCS conduct a courtesy interview because Mother was residing in Cass County. On July 15 and 18, 2011, the DCS received a report that J.S. had been diagnosed with failure to thrive, was scheduled to have a G-tube installed, and there were concerns regarding Mother’s ability to care for J.S.

During the DCS interview, Mother and R.H. (Boyfriend), who was also Mother’s first cousin, exhibited problems. Additionally, C.S. became aggressive and would bite S.S. on the face, causing significant bruising. S.S. also had untreated ringworm. The assessment further revealed that:

• Mother believed that C.S. had only a few days left of her seizure medication; however, Mother had been overmedicating C.S., and there was no prescription for a refill when the medication ran out.
• C.S. was nonverbal, and Mother failed to follow up on concerns that the child had autism.
• C.S. received stitches after hitting her head on a table at the hospital.
• Mother left C.S. restrained in a stroller for long periods of time because she was active and would get into things.
• Mother arrived at the hospital with C.S. and S.S. but did not bring any clothing for them.
• Mother refused to discipline the children because as a child, Mother had been removed from her mother’s care because of physical abuse.
• Boyfriend did not feel that the children were safe with Mother.
• Mother left eight-month-old J.S. alone at Riley Children’s Hospital (Riley) for several days before she arrived.
• Mother was unable to pass G-tube training, unable to feed J.S., and J.S. failed to gain weight under her care.
• Mother was not sure where she would live in the near future and was not even certain she would stay in Indiana, which was a concern for Riley because medical personnel had to mail J.S.’s medication.
• Mother was pregnant with Boyfriend’s child and was not receiving prenatal care.

Appellee’s App. p. 63-64.

The DCS removed the children, and on July 21, 2011, the DCS requested and received permission to file a petition alleging that C.S., S.S., and J.S. were CHINS. On October 19, 2011, a fact-finding hearing was held on the CHINS petition, and the juvenile court determined that the Children were CHINS after Mother admitted that her housing was unstable, J.S. was diagnosed with failure to thrive, C.S. was diagnosed with autism, Mother needed assistance obtaining medical care for the Children, and intervention was necessary for the Children to receive the needed services. Appellee’s App. p. 41^43.

On December 1, 2011, the juvenile court entered its dispositional order ordering Mother, among other things, to:

• Contact the DCS weekly;
• Notify the DCS of any change in address, household composition, telephone number, employment, arrest, or criminal charges;
• Enroll and participate in any recommended services without delay or missed appointments;
• Maintain safe, stable housing;
• Secure and maintain legal income;
• Assist in the formulation qf a protection plan;
• See that the children are properly clothed, fed, and supervised;
• Participate in home-based services to address issues of housing, budgeting, parenting, and sobriety;
• Complete a parenting assessment and follow all recommendations;
• Meet all medical, mental health, and dental needs of the children, including attending all appointments, following directions, and giving medications;
• Refrain from domestic violence and report it if it occurs;
• Comply with the terms of the no-contact order or protective order;
• Attend all visits, meet the children’s needs during that time, and implement parenting techniques learned in home-based services.

Appellee’s App. p. 76-78.

Instead of following the orders in the dispositional decree, Mother left Indiana in December 2011. She claimed that she was going to Alabama to visit family and would return. Christina Scherer, a home-based service provider, remained in contact with Mother through February 2012 and attempted to determine when Mother would return. However, Mother changed her phone number and refused to provide her address to Scherer or the DCS.

Although Mother informed Scherer that she would attend the May 16, 2012 permanency hearing, she failed to appear. Furthermore, Mother did not inform the DCS that she was traveling to Florida. The DCS discovered that Mother was in Florida when Florida CPS contacted the DCS about Mother.

On July 5, 2012, the DCS filed a petition to involuntarily terminate the parent-child relationship between Mother and the Children. On July 31, 2012, the DCS mailed a copy of the summons to Mother’s Florida address to notify her of the termination hearing. On August 23, 2012, the summons was returned showing that Mother was personally served on August 8, 2012.

Mother failed to appear at the August 29, 2012 initial hearing. Mother also failed to appear at the September 26, 2012 evi-dentiary hearing but was represented by counsel. At the beginning of the hearing, Mother’s counsel requested a continuance “until a time when my client can be here” because she lives in Florida. Tr. p. 6.

The DCS responded that Mother had contacted the DCS the week before and had discussed the court date with the case manager. The DCS further pointed out that Mother had signed the summons, proving that she had adequate notice of the hearing. As for practical considerations, the DCS highlighted the fact that Mother had been living in Florida since the previous December and had not visited the Children in ten months. Finally, the DCS stressed that continuing the case would only “further delay permanency for the children.” Tr. p. 7. The juvenile court denied Mother’s motion to continue.

The evidentiary hearing proceeded on the termination petition. Laura Knutson, a family case manager with the DCS who was assigned to Mother’s case until a few months before the termination hearing, testified that she had called Mother because she was concerned after Mother missed a visit. Mother informed Knutson that Boyfriend had assaulted her and that she was staying at a neighbor’s house. Mother’s injuries included a sore lip, a black eye, and one-half of her face was very swollen. Perhaps the most distressing aspect of the situation was that Mother was pregnant with Boyfriend’s child at the time.

Knutson contacted law enforcement, and a service provider transported Mother to a domestic violence shelter. During intake, Mother disclosed that domestic violence had occurred between her and Boyfriend “too many [times] to count.” Tr. p. 85.

Although Mother was encouraged to stay at the domestic violence shelter longer, she only stayed there for forty-five days because “she was only ordered to stay there forty-five days by the judge.” Id. at 69-70, 84. Mother filed a police report but declined a protective order. Charges were filed against Boyfriend, and a no contact order was issued. Boyfriend was arrested at his father’s house where he was living with Mother.

Because of this incident, Mother qualified for her own housing, but Mother missed her initial appointment. Additionally, Mother left the shelter to move back in with Boyfriend and his father, who was also her uncle, and she became “very secretive.” Id. at 92. Mother continued to live with Boyfriend and his father despite the charges against him, which were later dropped because she would not cooperate with the prosecutor’s office.

In light of the fact that Mother declined a protective order, lost her housing eligibility because she left the shelter and moved back in with Boyfriend, and dropped the charges against Boyfriend, Scherer did not think that Mother could keep the Children safe because “[Mother] has a difficult time keeping herself safe.” Tr. p. 71.

The Children suffered from medical conditions that required treatment and preventative measures. The Children have very bad teeth that require caps. Nevertheless, Mother brought candy and sugary drinks to visits to bribe the children into behaving.

Similarly, despite repeated instruction from medical personnel at Riley that Mother had to feed J.S. slowly through his G-tube to prevent aspiration, Mother would speed up his feeding. Mother failed parent care instructions and could not feed J.S. without assistance.

At first, Mother showed some motivation to work with home-based services about looking for employment and housing, independent living, good decision making, and role modeling. However, after a few months, Mother was not willing to participate in any services that did not benefit her personally, such as getting an identification card. Mother was denied SSI and did not have any income or transportation.

Mother did not progress beyond fully supervised visits because she did not understand safety for the Children and failed to make sufficient progress. More specifically, Mother left the Children unattended during visits and was not able to focus on more than one child at a time. J.S. could not sit up by himself and during one visit, Mother left him sitting alone on the couch while she took C.S. to the bathroom. Mother did not redirect C.S.’s aggressive behavior and was often resistant to parenting prompts from the visit supervisor.

In short, Mother did not make “lasting changes or acknowledge[ ] the need for improved parenting” by the time of the termination hearing. Tr. p. — 102, 106. The DCS never considered placing the Children.back with Mother because “[s]he did not have the ability to process the information she was provided and in turn use it effectively when she was with the children.... They were not safe.” Id. at 92-93.

Since the children’s removal, C.S. was diagnosed with Rett’s syndrome and is taking medication. Autism is the main symptom of Rett’s syndrome. According to the Children’s foster mother, C.S. is “like a completely different child.” Id. at 53.

S.S. continues to have some speech and communication delays and is learning how to play. She has a developmental therapist and will have a psychological evaluation, but is otherwise doing well. Tr. p. 54.

J.S. suffers from ear infections and can only receive nutrition through his G-tube. But, he now weighs twenty-four pounds and is “pretty healthy.” Id. at 55. Unfortunately, doctors believe that J.S. will always aspirate his food because his body does not respond normally when he aspirates to allow him to cough up food. The medical professionals in the neurology department at Riley believe that J.S. has cerebral palsy but have yet to formally diagnose him. The medical personnel also believe that the type of cerebral palsy that J.S. has is likely caused by “trauma that was experienced in the first half of in útero pregnancy.” Id. at 60.

Both the foster mother and the Court Appointed Special Advocate (CASA), Jessica Risher, testified that although Mother loved her children, she could not appropriately care for them and keep them safe. Risher recommended the termination of Mother’s parental rights.

Similarly, accordingly to Jeff Stanton, the guardian ad litem (GAL), Mother “does not have the ability to provide the care necessary.” Tr. p. 15. Mother “has a very, very low functioning capacity.” Id. at 16. Stanton opined that this is “probably one of the most extreme eases that [he has] ever reviewed where a parent has been absent from the children.” Id. Stanton further testified that he “would be hard-pressed to imagine that there’s a bond between the children and their mother based on this absence.” Id. at 17. Based on this fact and the Children’s inability to thrive, Stanton also recommended termination of Mother’s parental rights.

Knutson believed that termination was in the Children’s best interests because they need permanency and stability that Mother cannot provide. Additionally, Mother cannot remedy the situation because of her learning disabilities and her presence in their lives poses a physical threat to their wellbeing. The plan for the Children was adoption.

On October 22, 2012, the juvenile court issued its order terminating the parent-child relationship between Mother and the Children. Mother now appeals.

DISCUSSION AND DECISION

Mother’s sole argument on appeal is that she was denied procedural due process when the juvenile court terminated her parental rights after denying her motion for a continuance. We review a juvenile court’s ruling on a motion for continuance in a termination of parental rights proceeding for an abuse of discretion. In re E.D., 902 N.E.2d 316, 321 (Ind.Ct.App.2009). It is axiomatic that an abuse of discretion occurs if a parent is denied due process in termination proceedings. Indeed, we have said:

The Due Process Clause of the United States Constitution prohibits state action that deprives a person of life, liberty, or property without a fair proceeding. When the State seeks to terminate the parent-child relationship, it must do so in a manner that meets the requirements of due process. The nature of the process due in a termination of parental rights proceeding turns on the balancing of three factors: (1) the private interests affected by the proceeding, (2) the risk of error created by the State’s chosen procedure, and (3) the countervailing governmental interest supporting use of the challenged procedure.

In re C.C., 788 N.E.2d 847, 852 (Ind.Ct.App.2003) (internal citations omitted).

In this case, the private interests of Mother are substantial. To be sure, we have repeatedly recognized that parents’ interest in the care, custody, and control of their children is one of the most valued relationships in our society. In re B.J., 879 N.E.2d 7, 16 (Ind.Ct.App.2008); In re C.C., 788 N.E.2d at 852. Specifically, “the right to raise one’s child is an ‘essential, basic right that is more precious than property rights.’ ” In re B.J., 879 N.E.2d at 16 (quoting In re C.C., 788 N.E.2d at 852).

The second factor requires us to assess the risk of error created by the challenged procedure. Here, the challenged procedure is Mother’s absence from the termination evidentiary hearing. At the outset, we observe that although Indiana Code section 31-35-2-6.5(e) states that a court must provide a party the opportunity to be heard, it does not confer a constitutional right to be present at the hearing. In re B.J., 879 N.E.2d at 16.

In this case, Mother was represented by counsel throughout the termination hearing. Indeed, her counsel requested the continuance that is the subject of this appeal, questioned witnesses, and gave a closing argument. Tr. p. 5, 101-102.

Moreover, Mother has failed to show prejudice. Specifically, Mother’s counsel stated that Mother had her telephone number and knew how to contact her. Id. at 6-7. Additionally, Mother was aware of the date of the termination hearing because she signed the summons and spoke with Tamela Samuels, the current case manager, about the hearing. Id. at 99-100. Under these facts and circumstances, the risk of error created by the juvenile court denying Mother’s motion for a continuance is minimal.

The third factor, the countervailing government interest, considers the State’s significant parens patriae interest in protecting the welfare of children by intervening when parental neglect, abuse, or abandonment are at issue. In re E.D., 902 N.E.2d at 321. In assessing this factor, we have recognized that delays in adjudication impose significant costs on the children involved. In re B.J., 879 N.E.2d at 17.

Here, Mother has experienced significant exposure to domestic violence. Specifically, Florida CPS became involved after Mother was physically assaulted by Father while she was pregnant with J.S. Appellee’s App. p. 64. And medical professionals at Riley believe that J.S. has cerebral palsy that is likely from “trauma that was experienced in the first half of in útero pregnancy.” Tr. p. 60.

Similarly, while Mother was pregnant with Boyfriend’s child, Boyfriend assaulted her. Id. at 81-82. Mother had a sore lip, a black eye, and one-half of her face was swollen. Id. at 82. Mother was transported to a domestic violence shelter, but stayed for only the minimum time ordered by the judge. Id. at 69-70. Mother moved back in with Boyfriend and his father even though she was encouraged by her family case worker and family consultant to stay in the shelter. Id. at 84. In short, Mother has difficulty “keeping herself safe.” Id. at 71.

Mother also has problems meeting the Children’s medical needs. Although the Children have very bad teeth, Mother would bring sugary snacks and drinks to visits to bribe them into behaving. Tr. p. 64-65. Mother overmedicated C.S. with her seizure medication, and Mother disobeyed repeated instructions to feed J.S. slowly through his G-tube. Id. at 68-69.

Moreover, after removing the Children, the DCS never considered placing them back with Mother because she lacked the ability to process information and use it effectively when parenting the children. Tr. p. 92-93. Likewise, Mother failed to make any lasting changes; instead, she left the state shortly after the dispositional order was entered. Appellee’s App. p. 76-78; Tr. p. 72.

Perhaps most compelling, since the Children’s removal, C.S. has been properly diagnosed and medicated and is “like a completely different child.” Tr. p. 53. S.S. has some developmental delays, but is working with a therapist and doing well. Id. at 54. And J.S. now weighs twenty-four pounds and is “pretty healthy.” Id. at 55. Further, Mother voluntarily left her children and did not see them for ten months. Indeed, the GAL testified that he “would be floored if there was ... any bond whatsoever based upon the absence of the parent.” Id. at 18. To be sure, the State’s interest in protecting these children from harm is great.

Upon balancing the Mother’s interest, the risk of error by not having Mother present, and the State’s interest in protecting the welfare of these children, we conclude that under the facts and circumstances of this case, the juvenile court did not deny Mother due process of law when it denied her motion for a continuance.

The judgment of the juvenile court is affirmed.

MAY, J., and MATHIAS, J., concur.


source: Caselaw Access Project

author: NAJAM, Judge.

license: Public Domain

text:
    Lindsay TATUSKO, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 29A04-1208-CR-413.
    Court of Appeals of Indiana.
    July 11, 2013.

      Lawrence D. Newman, Newman & Newman, PC, Noblesville, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Andrew R. Falk, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

Lindsay Tatusko appeals her convictions for forgery, a Class C felony, and theft, as a Class D felony, following a jury trial. Tatusko presents the following issues for our review:

1. Whether she was denied the effective assistance of trial counsel.
2. Whether the State presented sufficient evidence to support her forgery conviction.

We affirm.

FACTS AND PROCEDURAL HISTORY

On November 12, 2011, Nicolette Lee purchased a meal at Logan’s Roadhouse (“Logan’s”) in Noblesville, and Tatusko was her server. The final bill for Lee’s meal was $14.37. Lee paid with a credit card, which Tatusko ran through a computer to generate two slips of paper, one marked merchant copy and one marked customer copy, for Lee’s signature and the addition of any gratuity. On the merchant copy, Lee wrote in a tip in the amount of $2.63, wrote in the total for the charge in the amount of $17, and signed her name.

Sometime thereafter, Lee noticed that the amount of the November 12 charge at Logan’s as indicated on the online credit card statement was $19, which was $2 more than the amount she had authorized. Lee telephoned Logan’s, asked to speak to a manager, and explained to Chad Keefe, the general manager, the discrepancy in her credit card statement. Logan’s issued a credit to Lee’s credit card in the amount of $2.

Keefe then verified that Lee’s “check was closed out to a different amount than what [Lee had] stated that she had put on the check.” Transcript at 158. Keefe then reviewed several of Tatusko’s checks from November 12 and he “realized that there was a kind of a pattern” of discrepancies between the amounts written on the actual checks and what Tatusko had indicated were the tip amounts in the restaurant’s computer system. Id. at 159. On November 15, Keefe contacted the Nobles-ville Police Department to report the thefts.

Following the police department’s investigation, the State charged Tatusko with forgery, a Class C felony, and theft, as a Class D felony. A jury found Tatusko guilty as charged, and the trial court entered judgment and sentence accordingly. This appeal ensued.

DISCUSSION AND DECISION

Issue One: Assistance of Trial Counsel

Tatusko contends that her trial counsel was ineffective when he did not seek a remedy following an allegedly prejudicial remark by a prospective juror during voir dire. A claim of ineffective assistance of counsel must satisfy two components. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, the defendant must show deficient performance: representation that fell below an objective standard of reasonableness, committing errors so serious that the defendant did not have the “counsel” guaranteed by the Sixth Amendment. Id. at 687-88, 104 S.Ct. 2052. Second, the defendant must show prejudice: a reasonable probability (i.e., a probability sufficient to undermine confidence in the outcome) that, but for counsel’s errors, the result of the proceeding would have been different. Id. at 694, 104 S.Ct. 2052.

Here, during voir dire, the trial court inquired of the prospective jurors whether any of them knew Tatusko personally. Juror 34 responded, “The Defendant rented from me. I own a rental property and I had to ask her to leave because of past due bills that she owed me and I kicked her out.” Transcript at 88. No one objected or asked follow up questions of Juror 34, and voir dire continued. A short time later, the trial court asked the following questions of the prospective jurors, as a group:

The Court did read the charging information to you. Do any of you have any personal knowledge concerning the facts in this case? Do any of you remember reading or hearing anything about this case in the media or otherwise? Do any of you feel that a person who’s been arrested probably is guilty or else that person would not have been arrested? Do any of you feel that you tend to be biased or prejudiced for or against the State of Indiana or for or against a Defendant in a criminal case? Juror number 34?

Id. at 39. At that point, Juror 34 stated, “Yeah, I — since my relationship with her was not good.... ” Id. Defense counsel interrupted Juror 34 and requested a side bar conference, which was granted. Defense counsel then asked, “Can we get him out of here?” Id. The trial court responded in the affirmative, and the State did not object. The trial court then informed Juror 34 that he was “excused.” Id. at 40. The trial court gave, no explanation for Juror 34’s dismissal, and nothing further was discussed regarding Juror 34 or his remarks in front of the jury pool.

Tatusko asserts that defense counsel should have “move[d] the trial court to take remedial action to examine each remaining potential juror individually as to whether [Jjuror 34’s extrajudicial comments had any effect on their ability to remain fair and unbiased so that Tatusko could receive a fair trial.” Brief of Appellant at 12. In support of that assertion, Tatusko cites to Lindsey v. State, 260 Ind. 351, 295 N.E.2d 819 (1973).

In Lindsey, on the evening after the State had rested its case in the defendant’s jury trial, a local newspaper published an article reporting that the defendant

was an escapee from a mental institution to which he had been committed for attacking a woman. This information was apparently factual but would not have been admissible at his trial. The account also stated that a witness had identified the defendant from police photographs, while in fact she had been unable to do so.

Bruce v. State, 268 Ind. 180, 375 N.E.2d 1042, 1063 (Ind.1978). On appeal, our supreme court “set forth a procedure for resolving the problem of potential prejudice to the accused by publicity appearing during trial.” Id. That procedure is as follows:

Upon a suggestion of improper and prejudicial publicity, the trial court should make a determination as to the likelihood of resulting prejudice, both upon the basis of the content of the publication and the likelihood of its having come to the attention of any juror. If the risk of prejudice appears substantial, as opposed to imaginary or remote only, the court should interrogate the jury collectively to determine who, if any, has been exposed. If there has been no exposure, the court should instruct upon the hazards of such exposure and the necessity for avoiding exposure to out-of-court comment concerning the case. If any of the jurors have been exposed, he must be individually interrogated by the court outside the presence of the other jurors, to determine the degree of exposure and the likely effect thereof. After each juror is so interrogated, he should be individually admonished. After all exposed jurors have been interrogated and admonished, the jury should be assembled and collectively admonished, as in the case of a finding of “no exposure.” If the imperiled party deems such action insufficient to remove the peril, he should move for a mistrial. Obviously, if at any stage the court believes the peril to be substantial and uncurable, it should declare a mistrial sua sponte. At all stages, the trial court must have discretion to make the determination, within the context of the particular circumstances; and a denial of a motion to interrogate the jury will be reversible error, only if we can say that there has been substantial peril. If the jury has been interrogated and admonished, as set forth above, the continuance of the trial, over the imperiled party’s motion for a mistrial, will be reversible error only if it can be said, after giving the decision of the trial judge the benefit of all reasonable doubt, that the peril was such as to be uncurable by instruction.

Lindsey, 295 N.E.2d at 824.

Here, Tatusko contends that her trial counsel’s performance was deficient in that he did not ask the trial court to interrogate and admonish the prospective jurors after Juror 34’s comments regarding Tatusko’s eviction for failure to pay rent. Initially, as the State correctly points out, “[bjecause [Tatusko] is bringing her ineffective assistance of counsel claim on direct appeal, she has lost the benefit of ‘utilizing the broader evidentiary opportunities afforded in post-conviction proceedings.’ ” Brief of Appellee at 8 (quoting Jewell v. State, 887 N.E.2d 939, 942 (Ind.2008)). For example, we do not have the benefit of trial counsel’s testimony regarding his reason for not requesting a Lindsey interrogation. There is a strong presumption that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment, and Tatusko must present strong and convincing evidence to overcome this presumption. See Carr v. State, 728 N.E.2d 125, 132 (Ind.2000).

Isolated poor strategy, bad tactics, a mistake, carelessness, or inexperience do not necessarily amount to ineffective counsel unless, taken as a whole, the defense was inadequate. Carr, 728 N.E.2d at 131. Here, it is reasonable to assume that defense counsel’s strategy in not requesting a Lindsey interrogation was to avoid drawing further attention to Juror 34’s brief and isolated remarks. See, e.g., Monegan v. State, 721 N.E.2d 243, 254 (Ind.1999) (holding trial counsel not ineffective for failing to object to prosecutor’s statements in closing, “[I] guess [the defendant] gets high off of hurting people and killing people” and “He’s a killer. Don’t think for one minute he’s not a killer.”); Willsey v. State, 698 N.E.2d 784, 795 (Ind.1998) (holding trial counsel not ineffective where “counsel’s failure to object [to comments during State’s closing argument] may well have been grounded in a decision that an objection would call undue attention to the State’s remark or would be seen by the jury as aggressive and unsympathetic”). Accordingly, Tatus-ko has not shown either that her trial counsel’s performance was deficient or that she was prejudiced by his decision not to seek a Lindsey interrogation. Tatusko was not denied the effective assistance of trial counsel.

Issue Two: Sufficiency of the Evidence

Tatusko next contends that the State presented insufficient evidence to support her forgery conviction. When the sufficiency of the evidence to support a conviction is challenged, we neither reweigh the evidence nor judge the credibility of the witnesses, and we affirm if there is substantial evidence of probative value supporting each element of the crime from which a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. Wright v. State, 828 N.E.2d 904, 905-06 (Ind.2005). It is the job of the fact-finder to determine whether the evidence in a particular case sufficiently proves each element of an offense, and we consider conflicting evidence most favorably to the trial court’s ruling. Id. at 906.

To prove forgery, the State was required to show that Tatusko, with intent to defraud, did utter a written instrument, namely, a credit card receipt, in such a manner that it purports to have been made with different provisions. See Ind.Code § 35^43-5-2(b)(3). Tatusko’s sole contention on appeal is that the evidence is insufficient to prove that she uttered a written instrument. We cannot agree.

Indiana Code Section 35-31.5-2-345 defines “utter” as to issue, authenticate, transfer, publish, deliver, sell, transmit, present, or use. And, as used in the forgery statute, the term “make” means “to draw, prepare, complete, counterfeit, copy or otherwise reproduce, or alter any written instrument in whole or in part.” Ind. Code § 35-43-5-1(m). A written instrument is defined as “a paper, a document, or other instrument containing written matter and includes money, coins, tokens, stamps, seals, credit cards, badges, trademarks, medals, retail sales receipts, labels or markings ..., or other objects or symbols of value, right, privilege, or identification.” Ind.Code § 35^43-5-l(t). And Indiana Code Section 26-2-8-106(c) provides that, if a law requires a record to be in writing, or provides consequences if it is not, an electronic record satisfies the law.

Tatusko maintains that “she used Nicolette Lee’s credit card to pay for the cost of the Logan’s food bill.” Brief of Appellant at 20. And she contends that she “would have had to ‘hit authorize settle’ in Logan’s computer system in order to ‘print out the merchant copy’ along with ‘a copy for the guest to take home with them.’ ” Id. (quoting transcript at 154). Tatusko asserts that

[t]his act ... would have all been completed electronically without “uttering” any written instrument to the computer system and Tatusko was authorized by Lee to complete this transaction. Ta-tusko argues that the evidence indicates that by inputting “authorize settle” into the computer system, the sales transaction was completed. The only remaining matter was the tip amount which is also electronically submitted through Logan’s computer system.

Id.

Tatusko then attempts to distinguish this case from Borjas v. State, 946 N.E.2d 1230 (Ind.Ct.App.2011), trans. denied, where we held that the defendant had uttered a written instrument and committed forgery where she had used someone else’s credit card for a purchase and had signed a false name electronically, but no paper receipt contained a signature. Here, Tatusko points out that, unlike the defendant in Borjas, “there is no evidence that she submitted any electronic signature through the credit card transaction at any point to authenticate the sale, as it was already completed.” Brief of Appellant at 20. Tatusko maintains that the evidence that she submitted a different tip amount than that authorized by Lee into the computer system does not constitute a violation under the forgery statute.

But we agree with the State that Lee’s bill was “not closed out and completed” until Tatusko reviewed the credit card slip, entered the tip amount into the computer, and hit “authorize settle” a second time. Brief of Appellee at 16. And the circumstances in this case are analogous to those in Borjas. Here, had the entire transaction been conducted on paper, Ta-tusko would have had to change the tip amount in writing, which would have satisfied the elements of the forgery statute, even according to Tatusko. Just because she changed the tip amount electronically does not mean that her conduct falls outside of the statute. Again, Indiana Code Section 26-2-8-106(c) provides that if a law requires a record to be in writing, or provides consequences if it is not, an electronic record satisfies the law. Accordingly, Tatusko’s electronic alteration of the authorized tip amount in Lee’s transaction constitutes forgery. The State presented sufficient evidence to support her forgery conviction.

Affirmed.

BAILEY, J., and BARNES, J., concur.

      . For the same reasons, we reject Tatusko's claim of fundamental error on this issue. See Monegan, 721 N.E.2d at 254 n. 12.


author: MASSA, Justice.

text:
    COMMISSIONER OF LABOR on the Relation of Stephen R. SHOFSTALL, Edward C. Posey, and Deborah N. Posey, Appellants (Plaintiffs below), v. INTERNATIONAL UNION OF PAINTERS AND ALLIED TRADES AFL-CIO, CLC DISTRICT COUNCIL 91, Appellee (Defendant below).
    No. 49S02-1205-PL-269.
    Supreme Court of Indiana.
    July 16, 2013.

      Michael J. Cork, Indianapolis, IN, Attorney for Appellants.
    William R. Groth, Geoffrey S. Lohman, Indianapolis, IN, Attorneys for Appellee.
   MASSA, Justice.

In July 2008, Stephen Shofstall and Edward Posey lost a union election, and with it their jobs. Deborah Posey, Edward’s wife, had served the Union as a clerical employee, but the new Business Manager/Secretary-Treasurer of the Union discharged her as well. All three sued the Union to recover compensation for unused accrued vacation pay, but the. trial court granted summary judgment to the Union and the plaintiffs appealed. Because Shof-stall and Edward Posey held elected positions, we find they should be treated differently than Deborah Posey, and we therefore affirm in part, reverse in part, and remand.

Facts and Procedural History

CLC District Council 91 has approximately twenty Business Representatives and clerical employees and operates in accordance with its own bylaws and the International Union of Painters and Allied Trades AFL-CIO constitution. Stephen Shofstall, Edward Posey, and Deborah Po-sey were employed by the Union for approximately six years. Shofstall was the Union Business Manager/Secretary-Treasurer and Mr. Posey was a Union Business Representative. In 2008, both were beaten in Union elections and lost their positions. Deborah Posey was a clerical employee and voluntary member of the Union. After Johnny Alderman defeated Shofstall in the 2008 election and assumed the position of Business Manager/Secretary-Treasurer, he terminated Deborah’s employment.

After their termination, the Poseys and Shofstall requested payment for unused vacation time they alleged they had accumulated during their respective tenures. Shofstall claimed at least thirty-five days, and the Poseys each claimed fifty-five days. The Union denied their request pursuant to its Constitution and Sections 5.7 and 7.2 of its bylaws claiming it had a use-it-or-lose-it policy with regard to vacation. Shofstall and the Poseys appealed through the Union grievance process, but their interpretation of the Constitution and bylaws was rejected at all levels.

In October 2009, the Poseys filed a civil complaint in the Marion Superior Court. In January 2010, Shofstall did likewise, and the cases were consolidated. Both parties moved for summary judgment, and the trial court granted the Union’s motion. On appeal, a divided panel of the Court of Appeals reversed the trial court. Commissioner of Labor ex rel. Shofstall v. Int’l Union of Painters & Allied Trades AFL-CIO, CLC Dist. Council 91, 962 N.E.2d 124, 132-38 (Ind.Ct.App.2011). We granted transfer, thereby vacating the opinion below. Commissioner of Labor ex rel. Shofstall v. Int’l Union of Painters & Allied Trades AFL-CIO, CLC Dist. Council 91, 967 N.E.2d 1035 (Ind.2012) (table); Ind. Appellate Rule 58(A).

Standard of Review

We review a grant or denial of a motion for summary judgment de novo. Carlson v. Sweeney, Dabagia, Donoghue, Thorne, Janes & Pagos, 895 N.E.2d 1191, 1196 (Ind.2008). Summary judgment is only appropriate when the record shows there are no genuine issues of material fact to be decided at trial and the moving party is entitled to judgment as a matter of law. Ind. Dep’t of Revenue v. Miller Brewing Co., 975 N.E.2d 800, 802-03 (Ind.2012). Like the trial court, we construe all designated evidentiary material in the light most favorable to the non-moving party. Bradshaw v. Chandler, 916 N.E.2d 163, 166 (Ind.2009).

I. Rights of a Voluntary Association

It is well established that trade unions are voluntary associations, Louisville & N.R. Co. v. Miller, 219 Ind. 389, 394, 38 N.E.2d 239, 241 (1941), and this Court has long held that:

[a] voluntary association may, without direction or interference by the courts, for its government, adopt a constitution, by-laws, rules and regulations which will control as to all questions of discipline, or internal policy and management, and its right to interpret and administer the same is as sacred as the right to make them.

State ex. rel. Givens v. Super. Ct. of Marion Cnty., 233 Ind. 235, 238, 117 N.E.2d 553, 555 (1954). Since that time, there has been little change to the general rule, and we have reiterated that rule in more recent times. “Absent fraud, other illegality, or abuse of civil or property rights having their origin elsewhere, Indiana courts will not interfere in the internal affairs of a voluntary membership association.” Ind. High Sch. Ath. Ass’n v. Reyes, 694 N.E.2d 249, 256 (Ind.1997).

After determining the rights a union has to interpret its own governing documents, we must next determine to whom those governing documents apply. We have said “the articles of incorporation and the bylaws of a not-for-profit corporation are generally considered to be a contract between the corporation and its members and among the members themselves.” Id.; see also Korzen v. Local Union 705, Intern. Broth. of Teamsters, 75 F.3d 285, 289 (7th Cir.1996) (“A union constitution regulates the relation between the union and its members.”). Our federal colleagues in the Seventh Circuit have further found that provisions of these documents that concern union governance are generally left to the union to interpret and implement as it sees fit. See Korzen, 75 F.3d at 289-90. We find this interpretation persuasive and in line with the reasoning behind our decision in Givens. How a union, or any voluntary association, chooses to compensate its elected officers and staff is certainly a matter of union governance, and as such, is generally an internal matter. Those rules and policies are promulgated by the association leadership, and under our precedent, that leadership has the authority to interpret those rules and policies.

II. Vacation Time for IUPAT Elected Officials and Employees

Shofstall and the Poseys argue they are employees of the Union and were promised' two weeks of vacation annually. They allege this time was accrued from year to year if it went unused, and Indiana law entitles them to receive that compensation upon discharge from employment.

While employers are not legally required to compensate employees for their unused vacation time, “if vacation pay is to be compensated, it is deferred compensation in lieu of wages and is subject to the provisions of the Wage Payment Statute.” Naugle v. Beech Grove City Sch., 864 N.E.2d 1058, 1067 (Ind.2007). Although we have never addressed the issue, our Court of Appeals has held that an agreement to provide vacation pay to employees made before the employee performs his service and based upon the length of service and time worked is not a gratuity but rather compensation for services. See Die & Mold, Inc. v. Western, 448 N.E.2d 44, 46-47 (Ind.Ct.App.1983). Moreover, “absent some other arrangement or policy, when an employer makes an agreement to provide compensation for services, the employee’s right to compensation vests when the employee renders the services.” Highhouse v. Midwest Orthopedic Inst., P.C., 807 N.E.2d 737, 739 (Ind.2004); see also Baesler’s Super-Valu v. Ind. Comm’r of Labor, 500 N.E.2d 243, 246 (Ind.Ct.App.1986); Osler Inst., Inc. v. Inglert, 558 N.E.2d 901, 904 (Ind.Ct.App.1990), summarily aff'd 569 N.E.2d 636 (Ind.1991).

Thus, the default under Indiana law is that an employee who is promised vacation time by his employer is entitled to use that time or save it for use or payment at a later date. Die & Mold, Inc., 448 N.E.2d at 46-47. This general rule can be abrogated, however, by an arrangement or policy of the employer that either places a prerequisite on an employee’s ability to use the promised vacation time or prevents the employee from using the vacation time after a date certain or period of time. Osler, 558 N.E.2d at 904.

As an example, an employer who promises a new employee $40,000 a year and two weeks of vacation may require that employee to work for a specified period of time before actually taking the promised vacation time. Alternatively, the employer could permit the employee to use the vacation time anytime he likes so long as it is used before December 31; otherwise, the vacation time (or the corresponding pay) is forfeited. Either of those scenarios would be permissible “arrangements or policies” under our statutory and case law. If the employee quit before he had worked the requisite amount of time to be able to use his promised vacation days, or if he failed to use the vacation time before the expiry period, his employer would not be required to pay him for the unused time under Indiana’s Wage Payment Statute.

The question before us today, then, is whether the union bylaws and constitution are an “arrangement or policy” preventing the disbursement of accrued but unused vacation pay to officers or employees of the Union upon termination. Because the parties are not similarly situated, we will address the merits of their individual claims in turn.

A. Elected Officers: Step hen Shof-stall and Edward Posey

Stephen Shofstall and Edward Po-sey claim they are employees under Indiana’s Wage Payment Statute, Ind. Code § 22-2-5, and there is no policy between them and their employer regarding vacation pay. In the absence of such a policy, they argue they are entitled to compensation for unused vacation days accrued during their employment. In the alternative, they argue the Union’s constitution and bylaws do not specifically require vacation days either be used or forfeited, so that time must accumulate. We disagree on both counts.

Section 5.7 of the Union bylaws prescribes the duties and compensation of the Business Manager/Secretary-Treasurer. Pursuant to that section, Shofstall received a certain salary “plus $40 per day per diem (five days a week, 52 weeks a year), plus reasonable expenses ... [and] two weeks paid vacation per year.” Appellee’s App. at 18. This is clearly a “policy” regarding compensation, including vacation time, as the term is used in Highhouse, Baesler’s Super-Valu, and Osier. Union officials, Union employees, and courts may differ as to what it means, but the only entity with authority to interpret this provision of the governing document is the Union.

Similarly, Section 5.4 of the by-laws prescribes the duties and compensation of a Business Representative. Pursuant to that section, Edward Posey received a salary determined by the Business Manager/Secretary-Treasurer, subject to certain minimum requirements. Additionally, Section 5.4 states that “elected Business Representatives will receive two weeks paid vacation per year and reasonable expenses as determined by the Business Manager/Secretary-Treasurer.” Appellee’s App. at 18-19. This, too, is a “policy,” and while interpretations may differ as to whether the two weeks of vacation is accrued each year and banked from year to year or is forfeited if not used within a certain time, the only interpretation that matters under our precedent is the Union’s.

Thus, because we find the IUPAT constitution and bylaws constitute an “arrangement or policy” regarding vacation time, and because it is the traditional province of voluntary associations to interpret their own constitutions, bylaws, rules, and regulations, we affirm the trial court’s orders of summary judgment in favor the Union against the claims of Shofstall and Edward.

B. Employee: Deborah Posey

Deborah claims that, as a Union employee, she earned vacation time each year and any days that went unused were carried over to subsequent years. She argues she is entitled to compensation for those unused days because there was no policy that limited the accrual of vacation time from year to year. While we do not go so far as to say Deborah is entitled to compensation, we agree that there exist issues of material fact that must be resolved and the Union was therefore not entitled to summary judgment on her claim.

Deborah was a member of the Union and worked in her home as a clerical employee. The Union constitution empowers the Business Manager/Secretary-Treasurer to “appoint, discharge and set salaries and expenses for organizers, field representatives, and other staff and direct them in the performance of their duties.” Ap-pellee’s App. at 18. However, neither the Union’s constitution nor its bylaws define the compensation of Union employees like Deborah.- It is undisputed that the Union did not have a written vacation policy for employees during the period that Deborah worked there. Thus, to defeat her claim for accrued vacation under the Wage Payment Statute, the Union must show it had an “arrangement or policy” that limited employees’ right to accrued vacation. We find the Union did not make a sufficient showing to preclude Deborah’s claim.

Upon reviewing the record, there is conflicting evidence as to whether a policy existed and, if it did, what it was. Because we find this disputed issue of material fact, we reverse the trial court’s grant of summary judgment for the Union on Deborah’s claim.

Conclusion

The Union bylaws clearly address the compensation, including vacation pay, of its elected officers. They are thus an “arrangement or policy” as we used those terms in Highhouse, and based on our precedent in Givens, the Union is the sole arbiter of disputes arising under its governing documents. The only exception to the deference courts show in these cases is when an association perpetrates fraud or some other illegal act upon the member that abuses - or interferes with that member’s civil or property rights. We see no such deprivation in this case, so we affirm the decision of the trial court as to Edward Posey and Stephen Shofstall’s claims.

Deborah Posey, as an employee, is entitled to accrue vacation pay unless there was an arrangement or policy to the contrary. Because we find there is an issue of material fact as to whether an arrangement or policy regarding vacation time existed during her employment, we reverse the trial court’s grant of summary judgment for the Union against Deborah Posey’s claim and remand this case back to the trial court to conduct further proceedings in accordance with this opinion.

Affirmed in part, reversed in part, and remanded.

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

      . This salary was based upon a calculation outlined in Section 213(c) of the Union constitution.

      . Plaintiffs cite to depositions, affidavits and sworn statements in which the declarants all allege they either had never heard that vacation time for Union employees was "use it or lose it,” or they believed the official policy to be that unused vacation was accrued from year to year. Appellant’s App. at 132 (deposition of Kevin Popa), 135 (affidavit of Ed Po-sey), 136-37 (sworn statement of Janet Baker), 138-39 (sworn statement of Gary Lackey), 141 (sworn statement of Jerrell Miskimen), 146 (sworn statement of Mark Sollars), 149 (sworn statement of Jack Young). The Union points to two depositions to show the policy had always been "use it or lose it.” Appel-lee’s App. at 21 (deposition of Carolyn Reis), 28-32 (deposition of Johnny Alderman). Additionally, the Union cites several letters from Union elected officials and employees who had been paid for accrued vacation time and then forced to pay it back. Appellee’s App. at 36-46. On this record, the nature — even the very existence — of the vacation policy is far from certain.


author: PER CURIAM.

text:
    In the Matter of Joseph Stork SMITH, Respondent.
    No. 29S00-1201-DI-8.
    Supreme Court of Indiana.
    July 17, 2013.
    Penny L. Carey, Fishers, IN, Attorney for the Respondent.
    G. Michael Witte, Executive Secretary, Seth T. Pruden, Staff Attorney, John P. Higgins, Staff Attorney, Indianapolis, IN, Attorneys for the Indiana Supreme Court Disciplinary Commission.
   Attorney Discipline Action

PER CURIAM.

We find that Respondent, Joseph Stork Smith, engaged in attorney misconduct by, among other things, revealing confidential information relating to his representation of a former client by publishing the information in a book for personal gain. For this misconduct, we conclude that Respondent should be disbarred.

This matter is before the Court on the report of the hearing officer appointed by this Court to hear evidence on the Indiana Supreme Court Disciplinary Commission’s “Verified Complaint for Disciplinary Action.” Respondent’s 1976 admission to this state’s bar subjects him to this Court’s disciplinary jurisdiction. See IND. CONST, art. 7, § 4.

Background

In 2010, Respondent authored a book purporting to be a true autobiographical account of Respondent’s relationship from roughly 1990 through 2010 with a former client (“FC”), who was active in politics and at one point held a high-level job in the federal government. A sexual relationship between FC and Respondent began around 1990 and continued until about 2001. After their sexual relationship began, Respondent represented FC on various legal matters during these years. They maintained a personal relationship for a time thereafter. Respondent’s professed motivation for writing the book was at least in part to recoup legal fees FC owed him and money FC had obtained from him over the years.

The Commission filed a ‘Verified Complaint for Disciplinary Action” against Respondent on January 9, 2012, charging Respondent with violating these Rules ' of Professional Conduct, which prohibit the following misconduct:

1.7: Representing a client when there is a concurrent conflict of interest due to the lawyer’s personal interests without obtaining the client’s informed, written consent.
1.9(c)(1): Using information relating to the representation to the disadvantage of a former client except as rules permit or require, or when information becomes generally known.
1.9(c)(2): Revealing information relating to the representation of a for- mer client except as rules permit or require.
7.1: Making a false or misleading communication about the lawyer or the lawyer’s services.
8.4(c): Engaging in conduct involving dishonesty, fraud, deceit or misrepresentation.
8.4(e): Stating or implying an ability to influence improperly a government agency or official.

The hearing officer filed his “Report of Findings of Fact, Conclusions of Law, without Recommendation Concerning the Disposition of the Case or Discipline to be Imposed” (“Report”) on February 28, 2013. Neither party filed a petition for review of the hearing officer’s report, although the Commission filed a brief on sanctions. When neither party challenges the findings of the hearing officer, “we accept and adopt those findings but reserve final judgment as to misconduct and sanction.” Matter of Levy, 726 N.E.2d 1257, 1258 (Ind.2000). Having considered the hearing officer’s conclusions of law, we approve and adopt them as well.

Discussion

Improper disclosures in the book (Rule 1.9(c)(1) and (2)). Respondent admits that portions of the book contain information about events'involving his representation of FC. The book describes several criminal cases against FC in which Respondent represented FC. Respondent revealed such details as his negotiations regarding bail and plea agreements, conversations with a police detective, conversations with FC pertaining to the charges and her incarceration, FC’s mental and physical state, the source of funds for restitution, discussions about his fees, and his personal thoughts about FC and about the matters. The book revealed that Respondent provided his legal files pertaining to his representation of FC in criminal cases to FC’s husband at one point.

Respondent also represented FC for the purpose of reviewing a divorce agreement. In the book, Respondent revealed details of his conversations with FC, details about her marriage, and his personal opinions and thoughts about FC’s conduct.

Respondent asserts that FC gave her consent to the disclosures of confidences when she said, in response to his statement that he might write a book about her, “That is a great idea! Write a book and make me famous!” The hearing officer concluded, however, that Respondent has not demonstrated that FC gave the level of informed written consent necessary to permit Respondent to disclose and publish the confidential information in the book.

Respondent argues that the disclosures related to his representation of FC were permitted under Prof. Cond. R. 1.6(b)(3), which states:

A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary ... to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client’s commission of a crime or fraud in furtherance of which the client has used the lawyer’s services.

(Emphasis added.)

Respondent asserts that he believed FC had provided false information about her criminal history and other matters to get her job with the federal government. Respondent admits however, that he has no evidence that any document was falsified by FC. The hearing officer found no credible evidence that FC’s employer relied on a false or misleading security application. In addition, Respondent’s disclosure of the alleged fraud years after FC left her employment would not serve to “rectify” or “mitigate” the alleged fraud, and there was no evidence.that FC’s employment caused substantial injury to the financial interests or property of another or that FC. used Respondent’s services “in furtherance” of any fraud. The hearing officer concluded that Respondent’s purpose in seeking to market the book arose from Respondent’s desire to recoup financial losses allegedly caused by FC rather than to prevent, mitigate or rectify her alleged fraud.

Conflict of Interest (Prof.Cond. R. 1.7). From 1990 through 2001, Respondent represented FC on numerous legal matters and maintained a personal relationship with her. During this period, Respondent advanced money, made personal loans, permitted his credit card to be used, and provided personal. assistance . to FC. Although FC owed Respondent legal fees, he continued to lend her additional funds and to provide additional services. Respondent grew increasingly frustrated with FC over her lack of payments but continued to represent her in order to increase his opportunity to be repaid. Respondent did not consider whether their personal relationship, including FC’s financial reliance on Respondent, would materially limit his ability to represent her professionally. The hearing officer concluded that Respondent’s actions created a conflict between his own interests, the interests df third persons, and his duty of loyalty to his then-client, FC.

Statements regarding improper influence (Prof.Cond. R. 84(e)). Respondent revealed in the book that he had a conversation with a person at the Marion County Bail Commissioner’s Project regarding the bail of FC. The book stated that Respondent “dropped the names” of several people, including a person he knew who used to work for the Project and a criminal court judge who was a friend of his. The hearing officer concluded that Respondent’s purpose in doing so was to imply the ability to influence improperly the Bail Commissioner Project'' agent by claiming some influence due to friendships with certain public officials and judges, in violation of Prof. Cond. R. 8.4(e).

False statements (Prof.Cond. R. 84(c)). In the book, Respondent stated that he had conversations with a leader of a state political party during a time when FC was employed as a fund-raiser by the party. Respondent stated, among other things, that the leader told him that FC had lied regarding political contributions she had claimed to receive and that the leader hired FC due to fear that she would make unfounded accusations against him. At the hearing in this case, the leader denied making these statements to Respondent. The hearing officer found the leader’s testimony to be credible on this disputed issue of fact and concluded that Respondent knowingly made false statements in the book in violation of- Prof. Cond. R. 8.4(c). , .

False claim regarding his qualifications (Prof.Cond. R. 7.1). Respondent stated in the book that he is a “Certified Domestic Law Mediator.” Alternative Dispute Resolution Rule 2.3 permits civil and domestic mediators to be “registered” with the Indiana Supreme Court Commission for Continuing Legal Education, and mediators must meet certain requirements to be registered. There is no “certification” provision. Respondent admitted he has never "been registered as a mediator and never acted as' a mediator in his career. The hearing officer found-that Respondent violated Prof. Cond. R. 7.1 by making misleading statements about his qualifications in the book.

Aggravating and mitigating facts. The hearing officer found the following facts in aggravation: (1) Respondent improperly revealed information about a former client for self-serving reasons; (2) Respondent engaged in multiple offenses; (3) Respondent testified falsely in this disciplinary matter;. (4) Respondent refused to acknowledge the wrongfulness of his conduct; (5) Respondent had been a lawyer for approximately 35 years when he published the book and thus knew or should have known his obligations regarding safeguarding client information; and (6) Respondent’s conduct in revealing information, about his former client’s legal matters was not an impulsive or sudden act; rather, it was planned and executed over an extended period of time. The hearing officer found the following facts in mitigation: (1) Respondent has no prior discipline; and (2) Respondent ceased efforts to sell the book when the verified complaint was served.

Discipline. The American Bar Association’s Standards for Imposing Lawyer Sanctions (as amended in 1992) (“Standards”) provide the following guidance misconduct warranting disbarment:

-Disbarment is generally appropriate when a lawyer, with the intent to benefit the- -lawyer or' another, knowingly reveals information relating to representation -of a client not otherwise lawfully •permitted to be disclosed, and this disclosure causes injury or potential injury to a client.

Standard 4.21 (emphasis added).

Disbarment is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed as a professional with the intent to obtain a benefit for the lawyer or another, and causes serious or potentially serious injury to a client, the public, or the legal system.

Standard 7.1 (emphasis added).

In the book, Respondent revealed personal and sensitive information about FC that was obtained in confidence as her attorney, and its revelation had the potential of causing her public embarrassment and other injury, such as impairment of her employment opportunities. Respondent’s selfish motivation in deliberately attempting to reveal this confidential information to a wide audience for monetary gain, his false statements in the book and in this disciplinary matter, and his lack of any remorse lead us to conclude that that disbarment is appropriate for Respondent’s misconduct.

Conclusion

The Court concludes that Respondent violated the Indiana Professional Conduct Rules by, among other things, revealing confidential, sensitive information relating to his representation of a former client by publishing it in a book for personal gain and by engaging in conduct involving dishonesty or misrepresentation.

For Respondent’s professional misconduct, the Court disbars Respondent from the practice of law in this state effective August 28, 2013. Respondent shall not undertake any new legal matters between service of this order and the effective date of the disbarment, and Respondent shall fulfill all the duties of a disbarred attorney under Admission and Discipline Rule 23(26).

The costs of this proceeding are assessed against Respondent. The hearing officer appointed in this case is discharged.

The Clerk of this Court is directed to give notice of this opinion 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 opinion to the Court’s website, and Thomson Reuters is directed to publish a copy of this opinion in the bound volumes of this Court’s decisions.

All Justices concur.

      . Two additional rule violations were charged, which we conclude are not-supported by sufficient evidence.


author: DAVID, Justice.

text:
    In re the GUARDIANSHIP OF A.J.A. and L.M.A., Minor Children J.C., Appellant (Intervenor below), v. J.B. and S.B., Appellees (Petitioners below).
    No. 48S02-1305-GU-398.
    Supreme Court of Indiana.
    July 18, 2013.

      See 986 N.E.2d 297
    Deborah M. Agard, Indianapolis, IN, Attorney for Appellant.
    S.B., Andersqn, IN, Appellees, pro se.
    J.B., Anderson, IN, Appellees, pro se.
   DAVID, Justice.

The Grandparent Visitation Statute is very specific as to under what circumstances a trial court may order grandparent visitation. It does not provide a means by which the paternal grandmother may seek visitation when her son has murdered the mother of her two grandchildren. The order granting grandparent visitation was void, and the trial court correctly vacated its original order which mistakenly granted such visitation. '

Facts and Procedural History

On April 23, 2008, M.A. murdered his wife, C.A., in the presence of their two small children, five-year-old A.J.A. and one-year-old L.M.A. M.A.’s brother, J.B. and his significant other, S.B. (the Guardians) took immediate custody of the children and thereafter filed a petition for guardianship over the persons and estate of A.J.A. and L.M.A. On July 3, 2008, the guardianship petition was granted. One week later, the paternal grandmother, J.C. (Grandmother) filed a petition to intervene in the guardianship for purposes of seeking grandparent visitation. The parties entered into an agreement whereby Grandmother would have visitation with the children each Sunday for one hour, supervised by chaperones over a six-week period. The parties agreed to review the matter at the end of the six-week period. During one of the trial visits, Grandmother took the children to the jail to visit M.A., violating the temporary visitation order. The Guardians also discovered Grandmother was violating the criminal court’s no contact order prohibiting M.A. from communicating with the oldest child.

Following Grandmother’s violation of the visitation order, the Guardians argued that Grandmother lacked standing to petition for visitation under the Grandparent Visitation Act. On February 4, 2009, the trial court determined that Grandmother did have standing and granted supervised visitation pending the next hearing. Thereafter, the Guardians filed a motion to correct error and relief from judgment. On July 6, 2009, the trial court issued an Amended Order Approving Petition for Grandparent Visitation.

The trial court’s Amended Order of July 6, 2009 granted limited visitation for Grandmother. Ultimately the parties ended up back in court on the Guardians’ request to terminate Grandmother’s grandparent visitation and related motions. Hearings were held on January 19, 2012 and then again on March 7, 2012. On March 26, 2012, the trial court issued its findings of fact and conclusions thereon that declared the 2009 grandparent visitation order void and vacated the same for want of subject matter jurisdiction, finding that Grandmother lacked standing because the parents’ marriage had not been dissolved by an Indiana court. The trial court held, “[sjince [Grandmother], as a parent of someone other than the deceased parent, has no entitlement to visitation under the statute, it necessarily follows [that] the court had no authority to grant such visitation[,] and the order is void at law. The order being void, Guardians may raise the issue at any time[,] and the issue is not waived.”

The Court of Appeals reversed. We grant transfer and affirm the trial court.

Discussion

At issue in this appeal is the trial court’s original order granting grandparent visitation to Grandmother. In one of her first opinions on this Court, Justice Rush discussed the history behind the Grandparent Visitation Act in In re Visitation of M.L.B., 983 N.E.2d 583 (Ind.2013). Historically, grandparents had no special common-law right to visitation with their grandchildren. Id. at 585. The Courts had previously thought any grandparent visitation policy should be a “legislative, not judicial” function. Collins v. Gilbreath, 403 N.E.2d 921, 923-24 (Ind.Ct.App.1980). It was not until 1981 that an Indiana court recognized limited rights to grandparent visitation. See Krieg v. Glassburn, 419 N.E.2d 1015, 1018-19 (Ind.Ct.App.1981). The very next year, the General Assembly passed Indiana’s first Grandparent Visitation Statute. Ind.Code § 31-1-11.7-1 to 8 (1982). Apart from a 1989 amendment expanding the statute, the substance has remained largely unchanged, even through its 1997 recodification.

The Grandparent Visitation Statute currently reads, “[a] child’s grandparent may seek visitation, rights if: (1) the child’s parent is deceased; (2) the marriage of the child’s parents has been dissolved in Indiana; or (3) subject to subsection (b), the child was born out of wedlock.” Ind. Code § 31-17-5-1. Grandmother argues that her son, M.A., should be considered deceased based on his sentence of sixty years incarceration, or in the alternative, the marriage was technically dissolved due to M.A. murdering C.A. and therefore she should have standing under sections (1) or (2) of the Grandparent Visitation Statute.

Our Court of Appeals decided a similar case in In re Visitation of C.R.P., 909 N.E.2d 1026 (Ind.Ct.App.2009), trans. denied. In that case, just as here, the father killed the mother, and the aunt and uncle adopted the child. Just as here, paternal grandmother filed for grandparent visitation. The Court of Appeals held that the Grandparent Visitation Act was “enacted in derogation of the common law and must be strictly construed.” Id. at 1028. Grandparents must have standing as prescribed under the Act to seek visitation rights. ■ Id. If a grandparent lacks standing, the petition must be dismissed as a matter of law. Id. We agree with the Court of Appeals analysis in ultimately holding that the Grandparent Visitation act “confers standing only upon grandparents who are the parents' of the deceased parent of the child.” Id. The Court ultimately found that since the grandmother was not the parent of the deceased parent, she did not have standing to seek visitation.

Our analysis is further strengthened by the Court of Appeals case In re Visitation of J.P.H., 709 N.E.2d 44, 46 (Ind.Ct.App.1999). This case also involved a unique determination of the Grandparent Visitation Statute, and drew upon statutory interpretation language from JKB, Sr. v. Armour Pharmaceutical Co., 660 N.E.2d 602 (Ind.Ct.App.1996), trans. denied:

When interpreting a statute, the foremost objective is to determine and effect legislative intent. Statutes must be construed to give effect to legislative intent, and courts must give deference to such intent'- whenever possible. Thus, courts must consider the goals of the statute and the reasons and policy underlying the statute’s enactment. Courts are to examine and interpret a statute as a whole, giving words their common and ordinary meaning, and not overemphasize a strict, literal, or selective reading of individual words. Words and phrases are taken in, their plain, ordinary, and usual meaning unless a different purpose is manifested by the statute. Where possible, every word .must be given effect and meaning, and no part is to be held meaningless if it can be reconciled with the rest of the statute.

Id. at 605. The Court of Appeals goes on to write that “courts will reject an interpretation of a statute which produces an absurd result.” Id. (citing Barger v. State, 587 N.E.2d 1304, 1306 (Ind.1992)).

In the present case, both of Grandmother’s theories would produce an absurd result. Her first theory, that her son is for all intents and purposes deceased, unfortunately attempts to circumvent the strict interpretation the statute is due and therefore her argument fails. Her son is not dead. Her son is incarcerated with a sixty year sentence for the murder of her grandchildren’s mother. In fact, it is Grandmother’s surreptitious attempts to facilitate communication between the children and J.A. that illustrate the absurdity of her argument. In this case, there is clearly a difference between those who, as Grandmother argues, are essentially dead because they are in prison, and those who are dead. Father is not dead and Grandmother is trying to affect visitation between the murderer and the children, contrary to the express wishes of the Guardians. Grandmother’s other theory for grandparent visitation is that by virtue of the murder, the marriage was dissolved. This produces an even more nonsensical result. We cannot construe any scenario where . the General Assembly intended the Grandparent Visitation Act to potentially require grandparent visitation by the mother of an individual who shot and killed the grandchildren’s other parent.

Having held that Grandmother did not meet one of the three strict definitions by which she could seek grandparent visitation rights, we now turn to whether the original order on grandparent visitation was void or merely voidable.

“The distinction between a void and a voidable judgment is no mere semantic quibble.” Stidham v. Whelchel, 698 N.E.2d 1152, 1154 (Ind.1998). “A void judgment is one that, from its inception, is a complete nullity and without legal effect[.] By contrast, a voidable judgment is not a nullity, and is capable of confirmation or ratification. Until superseded, reversed, or vacated, it is binding, enforceable, and has all the ordinary attributes and consequences of a valid judgment.” Id. “A voidable judgment or order may be attacked only through a direct appeal, whereas a void judgment is subject to direct or collateral attack at any time.” M.S. v. C.S., 938 N.E.2d 278, 284 (Ind.Ct.App.2010).

In M.S. v. C.S., 938 N.E.2d 278 (Ind.Ct.App.2010), the Court of Appeals wrote, “void in the strict sense means that an instrument or transaction is nugatory and ineffectual so .that nothing can cure it; voidable exists when an imperfection or defect can be cured by the act or confirmation of him who could take advantage of it.” Id. at 284 (quoting Trook v. Lafayette Bank and Trust Co., 581 N.E.2d 941, 944 (Ind.Ct.App.1991), trans. denied, (quoting Black’s Law Dictionary 812 (abridged 5th ed. 1983))).

Two cases highlight the difference between void and voidable. In In re Paternity of P.E.M., 818 N.E.2d 32 (Ind.Ct.App.2004), grandparents sought visitation rights with their grandchild, P.E.M. At issue in P.E.M. was that the trial court’s order granting grandparent visitation was not properly supported by findings of fact and conclusions of law. The Court of Appeals correctly held that this was a defect merely in form, a procedural irregularity, capable of being cured. Id. at 37. Thus, the order was held to be merely voidable, and could only be challenged through a direct appeal, which did not happen, and accordingly the right to challenge the order was waived. Id. Most recently, in M.L.B., we held an order merely voidable for incomplete findings of fact and conclusions of law. M.L.B., 983 N.E.2d at 588.

Conversely, in M.S. v. C.S., the Court of Appeals held that the General Assembly did not intend to allow parents to establish joint custody through Indiana Code section 31-17-2-3, because that essentially circumvented the Adoption Act. Thus, the Court of Appeals stated the Order on custody was not merely a procedural error, but “the trial court lacked the authority to grant the joint petition ... under any set of circumstances, and the error was therefore impossible to cure.” M.S., 938 N.E.2d at 284. Thus, the Court of Appeals held that order was void ab initio and without legal effect.

Another illustrative case is Kitchen v. Kitchen, 953 N.E.2d 646, (Ind.Ct.App.2011). In Kitchen, a third party was granted visitation with the children. The Court of Appeals held that the trial court “erred in concluding that it had the authority to grant third-party visitation to persons other than parents, step-parents, or grandparents.” Id. at 650. The Court of Appeals stated that the trial court “lacked the authority to grant visitation to the Lakes because they did not have standing to petition for visitation with K.K. Because the lack of standing cannot be cured, that portion of the June 26th order granting visitation rights to the Lakes is void.” Id. at 651.

In the present case, the Court of .Appeals relied on K.S. v. State, 849 N.E.2d 538 (Ind.2006) for its holding that the order was merely voidable. K.S. held that where subject-matter jurisdiction and personal jurisdiction exist, “a court’s decision may be set aside for legal error only through direct appeal and not through collateral attack.” Id. at 540. K.S. is a case involving a juvenile delinquent. In 2002, K.S. committed acts that would have constituted Class A misdemeanor battery if committed by an adult. Id. The court’s probation department filed a preliminary inquiry and investigation report and the same day an initial hearing was held. Id. K.S. admitted the allegations and the court adjudicated him to be delinquent and placed him on probation. Id. Over the following year, K.S. violated his probation several times. Id. The appeal in K.S. arose after he claimed that “the court did not have ‘jurisdiction over the case’ from the very beginning because it failed to approve by written order the filing of the original delinquency petition.” Id. at 541.

Unlike the present case, K.S. is about a procedural error. In K.S., the juvenile court failed to approve the filing of the petition. However, K.S. was a juvenile, a Marion County resident, and admitted to the juvenile court the allegations contained in the petition. The error by the juvenile court was merely voidable, capable of correction, and as K.S. did not object during the proceeding, he waived his objection. This is markedly different from the facts of the case before us. To analogize the current case to K.S., it would be as if the juvenile in K.S. was actually an adult and thus the juvenile court had no jurisdiction over him. That would be an error incapable of correction, and thus void.

We hold today that the trial court’s original order granting Grandmother grandparent visitation was void and thus without legal effect. Thus, we affirm the March 26, 2012 order of the trial court finding the original grandparent visitation order was void. Grandmother never had any standing to file a Grandparent Visitation action. She was not the grandparent of the deceased parent, nor was she the grandparent of a dissolved marriage. Grandmother did not have standing under the strict terms of the grandparent visitation statute as has been stated herein. This is a case where Grandmother had no legal right to pursue grandparent visitation under the statute. Remand cannot cure the defect. The only cure is to hold the original order was void ab initio.

Conclusion

The 2009 order granting Grandmother grandparent visitation rights is void. We affirm the trial court’s order vacating the 2009 order.

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

      . M.A. pled guilty and in December, 2008 and was sentenced to serve sixty years in the Department of Correction for the murder.

      . There are three definitions by which a grandparent can seek grandparent visitation, however only two of them are at issue in this ease. Subsection (3) is for a child bom out of wedlock, which is not at issue in this appeal.


text:
    In the Matter of Ronald E. WELDY, Respondent.
    No. 49S00-1103-DI-120.
    Supreme Court of Indiana.
    July 23, 2013.
   PUBLISHED ORDER GRANTING MOTION TO POSTPONE EFFECTIVE DATE OF SUSPENSION

By order dated June 28, 2013, this Court entered an order suspending Respondent from the practice of law in this state for a period of not less than 180 days, with 90 days actively served and the remainder stayed subject to one year of probation, effective August 9, 2013.

On July 18, 2013, Respondent filed a motion to postpone the effective date of suspension for seven days to August 16, 2013, to accommodate a briefing schedule in a pending case.

Being duly advised, the Court GRANTS the motion and postpones the effective date of Respondent’s suspension to August 16, 2013.

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.

Done at Indianapolis, Indiana, on July 23, 2013.

All Justices concur.