The Indiana Court of Appeals released a decision this week, affirming the granting of an adoption over the objections of the birth mother, who consented, but had a change of heart. The decision is not remarkable as it simply upholds the statutory provisions on consent to adoption, but one of the justices makes and interesting note about the state of adoption law:

KIRSCH, C.J., concurs with separate opinion.

* * * I write separately only to note the anomaly in Indiana law that provides extensive protections for parents whose parental rights are being involuntarily terminated, but that provides almost no protections for parents who are voluntarily terminating their rights through adoption. On the one hand, we provide counsel, notice and hearing, and the full panoply of rights to individuals who have abused or neglected their children; on the other, we provide no protection for the parent who believes she is acting in the best interests of her child in giving the child up for adoption. A homeowner who buys home improvements through a conditional sales contract has the right to disclosures and the right to rescind the contract within a specified period of time. Shouldn’t we provide as much protection to a parent who is giving up her child for adoption as we do to a person buying vinyl siding?

The Indiana Supreme Court yesterday released a decision in a divorce case (Julie Marie Bojrab v. George David Bojrab), that covers 2 contentious issues in divorce cases. First is the dilemma court find parents in when one wants to move with the kids to some distant local, and the other parent cries foul, noting that their relationship with the kids will be significantly curtailed. Generally, courts in a divorce do not have the power to limit a parent from moving about the country as they see fit, but many judges see the negative impact on the kids and the “abandoned” parent to be too severe to tolerate. Some courts look at the purpose of the move, and will basically say the parent can go, but the kids stay if the custodial parent does not have a real good reason to relocate. The Supreme Court does not give much guidance in making this decision, but it does approve of a clause that I imagine we will be seeing in more decrees, now that we know its legal:

We agree that a trial court may not prospectively order an automatic change of custody in the event of any significant future relocation by the wife. The decree does contain language ordering that, in the event the wife unilaterally decides to relocate outside Allen County, Indiana, “custody of the children shall be granted to the [husband].” Appellant’s Appendix at 164. This language is inconsistent with the requirements of the custody modification statute, Indiana Code § 31-17-2-21. See footnote Immediately preceding such language declaring a conditional future change of custody, however, the decree states: “the grant of custody of the parties’ minor children is subject to maintaining their residence in Allen County, Indiana.” Appellant’s Appendix at 164. There is a significant difference between the two phrases. One purports to automatically change custody upon the happening of a future event; the other declares that the present award of custody is conditioned upon the continuation of the children’s place of residence. While the automatic future custody modification violates the custody modification statute, the conditional determination of present custody does not. The latter is a determination of present custody under carefully designated conditions. Upon a violation of said conditions by the wife as custodial parent, the basis for the custody order is undermined, and the husband may seek a change in custody pursuant to the custody modification statute.

The second perennial issue comes up in child support disputes. Once support is set, it can be adjusted from time to time over the kids’ minority, based on changes in the parties incomes, and various other factors. Normally, people make their career decisions various reasons, but when a party paying support quits a job to take a lower paying job, many times the supported parent will cry foul when the court is asked to lower the child support. Courts look to the intent of the transition, and generally give parents the ability to make this choice so long as the intent is not specifically to reduce their child support obligation. But there is no guarantee:

Here the trial court found that the husband voluntarily left one position for another and that he could have remained at his prior position, that he would have taken financial measures to maintain the standard of living for his wife and children during the transition, and that he had the capacity to finance the support and maintenance during this time. While legitimate reasons may exist for a parent to leave one position and take a lower paying position other than to avoid child support obligations, this is a matter entrusted to the trial court and will be reversed only for abuse of discretion. See Elliott v. Elliott, 634 N.E.2d 1345, 1348-49 (Ind. Ct. App. 1994); Ullery v. Ullery, 605 N.E.2d 214, 215 (Ind. Ct. App. 1992). Considering the facts most favorable to the judgment without reassessing credibility or reweighing the evidence, we cannot say that the trial court abused its discretion in the present case.

Another thing I noted in this case was the time line: The divorce was filed on January 10, 2000. The trial court issued its final order on March 28, 2002, the Court of Appeals rendered its decision on the dispute on April 16, 2003, and the Supreme Court ended the case with its decision on June 28, 2004. Not the record for a drawn out divorce, but this lady waited a long time to learn she could not relocate her kids.

When the state removes a child from his or her parents, the child protective services agency, at least in Indiana, must attempt to place the child in a safe, family-like environment, preferably with relatives. Most families would prefer to have the child with grandma, or and uncle or aunt, than some strangers. The trouble for the state is to assure that the child is not going from the frying pan into the fire.

So, someone in the legislature, upset with a case where a bad placement was made, pushed forward a provision mandating FBI criminal checks on all adults in a residence before the state placed a child there. The fact that these background check would cost $39.00 each, and take 2 to 3 months to complete (during which time the child would be with strangers in the foster care system), did not put the rest of the legislature off, and the bill became law, set to go into effect this Thursday.

Many across the state had a negative reaction to this law, seeing the delays and costs of the added procedure to be unwarranted. The big problem come up when the FBI responded that it could not open its records for non-law enforcement purposes, and therefore could not provide the background checks. Apparently, no one in the legislature bothered to check and see if the new requirement complied with federal law. Oops.

The development of the Conner Prairie program was a program that came out of Earlham College,” said Bolling, who was Earlham president from 1958 to 1973. “It did not come out of (the museum’s) neighbors in Hamilton County or Fishers. It came out of the heads of people I worked with.

That is what Landrum Bolling said in a public meeting held in Richmond, Indiana yesterday, at least that is what the Pal-Item reported here. The former Earlham College President, and former President of the Lilly Foundation spoke in the public session for 30 minutes (over the 3 minute limitation) before many Wayne County residents and some folks from Hamilton County.

The article from the Pal-item summarizes both the Attorney General’s plan for the living history museum as well as Earlham’s plan. Earlham is the trustee for the asset, and The AG (Steve Carter) still has not agreed to meet with Earlham to discuss this issue, preferring instead to hold public sessions on his plan. The Pal-Item continues to impress with its coverage of this issue.

Not a big issue for most, but for many it a key to living a reasonable life. Indiana law does not require a full-blown driver’s license to operate a motorized bicycle. This is important for young teens, anxious to get on the road, but for adults who have lost their licenses for multiple traffic offences for many years (call “habitual traffic offenders” (HTO) here) it provides a reasonable means to get to work. If caught driving without a license, HTO’s face anywhere from a year to eight years (depending on their history) in prison. The Indy Star has a piece up today on this issue and it contains a good overview of the law:

Indiana does not require a license tag and registration for vehicles that are considered a motorized bicycle. The state defines a motorized bicycle as a two- or three-wheeled vehicle that is propelled by an internal combustion engine or a battery-powered motor. If powered by an internal combustion engine, it must:

• Not exceed 2 horsepower.

• Not exceed 50 cubic centimeters.

• Have an automatic transmission.

• Have a maximum speed of 25 mph or less on level ground.

Only people age 15 and older can legally ride the vehicles on public property. To do so, they must have an Indiana identification card issued by the Bureau of Motor Vehicles. They also must wear helmets and goggles or a helmet with a full-face shield.
A rider may not carry a passenger or ride on a sidewalk or interstate highway.

The problem is with technology. Manufacturers now produce really nice “mopeds” that have 49 cc engines that go go close to 50 mph. That clearly violates the 25 mph. Over the last year we have had a rash of people getting busted for operating without a license, or operating as a HTO after police radar their mopeds and find them to be exceeding the 25 mph. While we have had some fun on the “level ground” issue, it is hard to watch an adult go to prison for riding a moped to work. Another note, if your license to drive has been suspended because of an OWI in Indiana, you cannot operate any motorized vehicle, mopeds included.

The Palladium-Item, Richmond, Indiana’s local newspaper, owned by the Gannett Corporation, is a paper I always read, but seldom appreciate. Today, the paper finally has it right, though, in the fight between the Indiana Attorney General, and Richmond’s Earlham College over the control of Conner Prairie, the living history museum in Fishers, Indiana. I have written about this dispute in the past. The Attorney General has a plan for fixing what he sees as Earlham’s mismanagement of the asset, and called a public meeting to discuss his plan. Earlham has its own plan, and has asked the AG to sit down and discuss it, instead of hosting what amounts to a press conference in his political campaign (he’s up for reelection).

After the P-I sent along a reporter to this “public meeting,” they published an editorial today that I think is dead on:

The idea in the central part of the state seems to be that a bunch of small-town rubes couldn’t possibly run the museum and run it well. This must be done by important people, more educated people from a more metropolitan area, they argue.

“It’s just not possible for the museum to be successful without strong, local leadership.” — Carter.

If it’s not possible, how has Conner Prairie become one of the state’s biggest tourist attractions? How has it drawn more than 300,000 visitors annually? If it’s not possible, how has Earlham grown the initial Lilly gifts into an endowment worth more than $150 million?

One would think that the attorney general, the state’s chief law enforcement officer, would look at the facts before smearing Earlham’s name in connection to Conner Prairie. But this is a man who told the gathered crowd in Fishers that he became involved because he was concerned about low morale among Conner Prairie employees — an area over which he has no legal or statutory oversight.

Perhaps he doesn’t want facts to stand in the way of his campaign for reelection.

Should wireless phone companies be held liable for car wrecks caused by people talking on their cell phone?

The argument goes like this: The wireless providers know that talking on a cell phone while driving can distract the driver, making them more likely to crash. When they sell a phone and service to a person, they know it is likely that person will use the phone while driving because, hey, that’s what people do with cell phones. Shouldn’t the people who get crashed into by these cell phone distracted drives be able to hold the provider for their injuries?

Not yet, at least in Indiana, the court of appeals said today:

The relationship between Cingular and Williams is remote. Although it is foreseeable that cellular phone use while driving may contribute to a car accident, it is not foreseeable that the sale of a phone to a customer will necessarily result in a car accident. Public policy weighs in favor of not imposing a duty on cellular phone companies for car accidents, even if cellular phones have the potential to distract drivers if misused.

Upon balancing the three factors mentioned in Webb, we conclude that Williams’ attenuated relationship with Cingular and the foregoing public policy considerations substantially outweigh any foreseeability of the harm at issue. Therefore, we must conclude that Cingular did not owe a duty of care to Williams.

I don’t know how I missed this quote. Thanks to Ed Feigenbaum at Indiana Daily Insight , I got it:

“In the Seventh Circuit, some large schools—Wisconsin (Badgers), Purdue (Boilermakers), Indiana (Hoosiers), Notre Dame (The Fighting Irish), DePaul (the Blue Demons), the University of Evansville (Purple Aces), and Southern Illinois (Salukis)—have nicknames that would make any list of ones that are pretty cool. And small schools in this circuit are no slouches in the cool nickname depart-ment. One would have a hard time beating the Hustlin’ Quakers of Earlham College (Richmond, Indiana), the Little Giants of Wabash College (Crawfordsville, Indiana), the Mastodons of Indiana University-Purdue University-Fort Wayne (Fort Wayne, Indiana), and the Scarlet Hawks of the Illinois Institute of Technology. But most schools have mundane nicknames. How can one feel unique when your school’s nickname is Tigers (43 different colleges or universities),1 Bulldogs (40 schools), Wildcats (33), Lions (32), Pioneers (31), Panthers or Cou-gars (30 each), Crusaders (28), or Knights (25)? Or how about Eagles (56 schools)? The mascots for these schools, who we assume do their best to fire up the home crowd, are pretty generic—and pretty boring. Some schools adorn their nicknames with adjectives—like “Golden,” for instance. Thus, we see Golden Bears, Golden Bobcats, Golden Buffaloes, Golden Bulls, Golden Eagles (15 of them alone!), Golden Flashes, Golden Flyers, Golden Gophers, Golden Griffins, Golden Grizzlies, Golden Gusties, Golden Hurricanes, Golden Knights, Golden Lions, Golden Panthers, Golden Rams, Golden Seals, Golden Suns, Golden Tigers, and Golden Tornados cheering on their teams. All this makes it quite obvious that, when considering college nicknames, one must kiss a lot of frogs to get a prince. But there are a few princes. For major universities, one would be hard pressed to beat gems like The Crimson Tide (Alabama), Razorbacks (Arkansas), Billikens 2 (St. Louis), Horned Frogs (TCU), and Tarheels (North Carolina). But as we see it, some small schools take the cake when it comes to nickname ingenuity. Can anyone top the Anteaters of the University of California-Irvine; the Hardrockers of the South Dakota School of Mines and Technology in Rapid City; the Humpback Whales of the University of Alaska-Southeast; the Judges (we are particularly partial to this one) of Brandeis University; the Poets of Whittier College; the Stormy Petrels of Oglethorpe University in Atlanta; the Zips of the University of Akron; or the Vixens (will this nickname be changed if the school goes coed?) of Sweet Briar College in Virginia? As wonderful as all these are, however, we give the best college nickname nod to the University of California-Santa Cruz. Imagine the fear in the hearts of opponents who travel there to face the imagina-tively named ‘Banana Slugs’? From this brief overview of school nicknames, we can see that they cover a lot of territory, from the very clever to the rather unimaginative. But one thing is fairly clear—although most are not at all controversial, some are. Even the Banana Slug was born out of controversy.”

– Judge Terence T. Evans of the U.S. Court of Appeals in an appellate ruling on First Amendment issues related to University of Illinois mascot Chief Iliniwek

According to the Tribune Star today, the Indiana Supreme Court’s plan to put court records online is finally hitting the ground:

Clay County is the first site in the state to begin testing a new, computerized system that will make courthouse information more accessible to the public and eventually lead to a “paperless” court system.

State Supreme Court officials announced the Clay County pilot project during a presentation in the Clay Circuit courtroom Wednesday.

The system being tested in Clay County will eventually be extended to courthouses statewide, said Frank Sullivan Jr. Supreme Court associate justice. The new system will save taxpayer dollars, make the courts more efficient and assist law enforcement.

“Citizens and lawyers would be able to check the status of their cases over the Internet without calling the clerk’s office,” Sullivan said.

Much work remains to be done, officials said, and Sullivan predicted it will be at least three years before the system extends statewide. Problems will be worked out in the testing phase.

Great! Now Clay county records will be online for the next three years, and then maybe some other counties will get signed up. Great. Oh, and all it costs is a $7.00 fee charged as surcharge on every case filed. Great.

Let’s hear what the Chief Justice says about this great advancement:

Chief Justice Randall Shepard, who also attended the announcement, said the project represents a partnership between the Indiana judiciary, state and county government leaders.

“Beginning the testing in Clay County is a tremendous step forward in an effort that I consider to be the most important improvement in Indiana courts in over 30 years,” Shepard said.

Wow! Biggest improvement in 30 years. Isn’t government great? By 2007, the judges plan on bringing the entire state court system “online.” Funny how the article fails to mention that a private company (Doxpop)has been working to bring these same records online, and actually has 17 COUNTIES in Indiana online right now, all at a cost of $0 to the counties, and a cost of $0 to filers of lawsuits (who may or may not get any benefit from the online access they will be charged for under the State sponsored system), and with general information available to members of the public for (again) $0. If you want detailed information (as I do), you register, and pay a monthly access fee.

So under the private business model, the records are available now, at no costs to anyone but those who choose to sign up and pay for detailed information (i.e. those whose businesses make such costs worthwhile). Under the state model, we have to wait until 2007, and every user of the court system is charged $7.00 per case filed for the service, whether they want online access to their case or not.

Oh yeah, as an added benefit of the State system, the Court has the power to require counties to use it, meaning they will likely get to ditch their current court records systems, and maybe put a few private companies around the state out of business. Government is so efficient!

Fingerprint evidence has been around for a century, and in court, no other type of evidence carries the same air of unassailability. Even though DNA evidence has gone through thorough testing and surmounted significant challenges in the two decades it has been around, it still does not have the same status of fingerprint evidence. Most “experts” in the field will tell you it is a 100% accurate method of identifying people. The only errors made in fingerprint evidence can be attributed to sloppy work. Recent headlines regarding the US government’s case against a terror suspect/attorney falling apart in the face of just such an “error” has brought to issue into the limelight.

One problem with fingerprint evidence was that it developed its unassailable status before courts adopted more stringent tests for the reliability of expert testimony. There are few statistical studies supporting the main claim of fingerprint evidence: that each person on the face of the earth has distinct prints, such that a qualified technician can identify which print came from which person, without error. The lack of scientific support for the field has not kept it out of court, yet. When three of the best (FBI technicians) make such a glaring (and public) error, significant challenges cannot be to far off in the future.

My prediction is that someone will get the money (maybe from the embarrassed US Justice Department) to do the studies necessary to support the science, and fingerprint evidence will prevail. The bigger problem with fingerprint evidence will be its use in the modern era, where great volumes of fingerprint cards are combined into huge databases, and used in the field to determine who particular people really are.

The New York Times has a story that I think will become all to common:

In front of the immigration judge, the tall, muscular man began to weep. No, he had patiently tried to explain, he was not Leo Rosario, a drug dealer and a prime candidate for deportation.

He was telling the truth. He was Rene Ramon Sanchez, an auto-body worker and merengue singer from the Bronx who bore not even a passing resemblance to Mr. Rosario, a complete stranger 12 years his junior and a half-foot shorter.

“Why don’t you get his photo then?” Mr. Sanchez cried out in Spanish, pounding a fist into his palm. “And compare my fingerprints with his?”

The judge, Alan L. Page, had been told the prints were the same. “The general rule is, the prints don’t lie,” Judge Page had said earlier. “If you got the same prints that Leo Rosario has, you’re Leo Rosario. And there’s nothing I can do about it.”

So Mr. Sanchez, in late 2000, was sent back for another week in a grim detention center in Lower Manhattan, severed from his family and livelihood, because his fingerprints had been mistakenly placed on the official record of another man.

Remarkably, this was not the first time Mr. Sanchez had paid for that mistake. He had been arrested three times for Mr. Rosario’s crimes, and ultimately spent a total of two months in custody and was threatened with deportation before the mistake was traced and resolved in 2002.