Pitts v. Johnson County Department of Public Welfare
491 N.E.2d 1013
Ind. Ct. App.
1986
Check Treatment

*1 PITTS, Appellant-Respondent, Bonnie

JOHNSON COUNTY DEPARTMENT WELFARE,

OF PUBLIC

Appellee-Petitioner.

No. 4-785A179. Appeals

Court of

Fourth District. *2 may pro-

services she have received were physician-patient privi- tected under the lege. Legal Orga- In October Dreyer,

David J. Services the trial court ordered sign Pitts to the medical release form. Her Inc., Indianapolis, nization of for attempt certify to issue for interlocu- appellant-respondent. the tory appeal was denied. The DPW then Stephen L. and Huddleston Clarke judgment filed a motion for and for rule to House, Franklin, appellee-petitioner. for noncompliance show cause due to Pitts's with the court order. CONOVER, Judge. contempt hearing A was set for Novem- (Pitts)

Defendant-Appellant Bonnie Pitts orally 30th. The ber court informed the appeals the trial court's of her termination parties finding contempt it was Pitts in by parental rights default for would find her in default under Ind.Rules comply discovery failure to with a order. Procedure, of Trial Rule 37. Procedure, The court 37(B). Ind.Rules Trial Rule of 13, 1984, entered its order on December but We reverse remand. granted stay Pitts a so she take could the ISSUES Supreme original issue to our Court as an dispositive. Pitts raises one issue which is action. Pitts then filed a motion to correct the 1. Whether trial court abused its errors. The entry DPW filed a motion for by terminating parental her judgment. of default Pitts filed a motion rights by judgment. oppose entry. to such FACTS Supreme hearing A Court held on was Supreme March 1985. The Court de- County In the October Johnson Ju- clined to interfere with the trial court's decree, dispositional venile Court issued a jurisdiction exercise of over the finding minor child a in Pitts's to be child order. (CHINS). need of services The decree stat- placed ed the child would be in the Johnson remaining concerning The issues de- the County Department of Public Welfare's hearing fault were set for on (DPW) custody study until a home was hearing, At this Pitts at- California, conducted in where Pitts was purge tempted contempt by to her submit- to reside.

believed ting signed previ- medical release form ously compelled. The court refused to ac- began In March the DPW corre- cept the form. court asserted Pitts sponding Pitts and various with California The in departments already in default from its December welfare order to coordinate months, The study. During a 1984 order. court refused to ac- home the next DPW initiated but was unable to com- cept any testimony from and did Pitts not any by allow cross-examination her attor- plete separate six home studies. These ney. attempts unsuccessful due to Pitts's were changes

continual of address. parental The court terminated Pitts's January peti- filed rights appeals. DPW a by default. She rights. parental tion to terminate Pitts's necessary facts for our determina- Other re-settings, After numerous the DPW be- appear tion below. came Pitts had seen a doctor at a "aware" AND DECISION DISCUSSION September mental health center. Discovery A. Sanctions compel the DPW filed a motion to Pitts to sign designed Discovery a medical release form. The DPW to be self-exe claimed it needed to discover the informa- little, cuting if any, supervision with or sign by goals tion stated If therein. Pitts refused to assistance the trial court. down, system the form. She claimed mental health of this Trial Rule 87 break recognizes provides the court with tools to enforce ders. But this balance also encourage just system justice oppor- to our compliance order tunity litigant's speedy determination of the lawsuit. be heard is a most precious right may impose sparingly various sanctions and should be trial court expenses to en- denied." ranging from allowance try judgment by of dismissal or default. Reeves, Chrysler Corp. supra at 1153. *3 (1981), Ind.App., Breedlove v. Breedlove reversing In the trial court's default 739, 421 N.E.2d The choice of sanc- 741. pursuant entered to Ind.Rules the tion is a matter within the discretion of Procedure, of Trial Rule 37 he noted in a court. trial Id. say, footnote is to on based a "[that weighing policies of these the sanction of Judgment B. Defoult appropriate default or dismissal is never entry without of a lesser sanction first." Generally, judgments are at Id. 1154. they in Indiana for are ren not favored or dered without a trial of issue of law Breedlove, (1981) In Breedlove v. Ind. Corp. Shields, fact. Finance v. Skinner App., Judge General 421 N.E.2d 739 court, speakingfor the stated: (1981), Ind.App., Any 426 N.E.2d 82. propriety in doubt of their is resolved favor "The sanction of dismissal or default is party. Plough v. Formers of the defaulted obviously more drastic and severe than Ind.App., (1982), County Henry Bank State other available sanctions. Because the of in 37 N.E.2d 475. This view is disposition the of cases on law favors 4 keeping goal the of this merits, with established imposition their the these of jurisdiction to have our tribunals decide a appropriate only under sanctions is controversy merits. v. on its limited circumstances or in extreme Fruehauf Employment Board Indiana Review Where an alternative less situations. of (1983), App., Security Ind. 448 N.E.2d it drastic sanction would be effective 1197. added.) (Emphasis utilized." must be in at 742. The court Breedlove af- Id. reviewing judgment, the default firmed the trial court's default question the before this court is whether < examining only after the record and but court its the trial abused discretion. observing where numerous instances Breedlove, supra, N.E.2d at 742. We disobeyed defied and the the defendant may say discre a trial court has abused its orders. trial court's only the result it has tion when reached jurisdiction in It is thus settled this clearly against logic the and effect of the imposed facts and cireumstances which are before that lesser sanctions should be there has contu- parties on unless been reasonable, probable, the court or the and disregard of the court or lesser macious flowing deductions therefrom. Ful actual have not been effective. (1983), sanctions Ind.App., 447 Slyke ton v. Van 628, 636. N.E.2d 447 N.E.2d at 685. Slyke, supra, 447 N.E.2d Van contempt is to purpose of civil Judge Miller our of default discussed view party conform to the court's force a

judgments comply for failure to with dis- original Duemling Wayne v. Fort order. Quoting Judge covery orders. from (1963),243 Ind. Community - Concerts Young's Corp. in Chrysler decision v. Here, trial court 188 N.E.2d 276. (1980), Ind.App., 404 N.E.2d Reeves privi release information ordered Pitts to Breedlove, Judge in and Shields's decision physician-pa leged by of a California virtue supra, he stated: relationship. Following supreme tient - recognizes review, "This balance that a trial original attempt Pitts court action court's order. comply in «con- ed to with the trial judge should have wide latitude accept signed trolling The trial court refused to pretrial orders and release, testimony re- to allow and compliance his or- refused should seek with (2) probability there is a reasonable fused to held allow cross-examination. It already Pitts default. in the the conditions that resulted remedied; child's removal will not be Given these facts and the funda (8) of importance parent-child termination is the best interests mental of the rela stake, tionship at we find the trial court child; (1) by imposing not abused its (4) county department has a satisfac- first, (2) lesser than default not sanction tory plan for treatment the care and original permitting Pitts to conform to its of the child. order, (8) prohibiting speak Pitts from (1985), See, App., Matter Ind. D.L.W. ing cross-examining during witnesses 139, 142; N.E.2d J.K.C. Fountain Coun 10, 1985, hearing. (1984), ty Department Public Welfare App., Ind. 470 N.E.2d C. Due Process *4 case, presented In this no evidence was Further, the trial court's actions vio judgment. due to the default In J.C. Mar process rights under the lated Pitts's due Milking v. Reichert low Machine Co. Fourteenth Amendment to the United 364, (1984), States Constitution. Ind.App., 464 N.E.2d Chief Judge Buchanan stated: (1982), In Santosky v. Kramer 455 U.S. using 1388, 599, remedy When the drastic of de- 71 102 S.Ct. L.Ed.2d Justice to* T.R. Blackmun stated: fault as sanction under 37(B), The fundamental interest of natural the trial court must follow the care, provisions concerning proce- of T.R. 55 parents custody manage- in the evaporate issuing judgments. ment of their child does not dures for simply they have not model because been custody parents temporary or have lost judgment In our case a default was to of their child the State. Even when issued, hearing required so a was for the strained, relationships parents are blood benefit of Marlow. preventing retain a interest vital family of their irretrievable destruction 464 N.E.2d at 865-866. anything, persons If life. faced with case, hearing no held for the In this was parental rights forced dissolution of their the default benefit of Pitts when procedural have a more critical need for permitted entered. She was not to protections resisting than do those state evidence, speak, present or cross-examine ongoing family intervention into affairs. parental opposing witnesses before her destroy to When the State moves weak- rights terminated. were bonds, provide ened familial it must Blackmun, Santosky, supra, Justice fundamentally parents with fair proce- citing Department Lassiter v. Social dures. (1981), 452 U.S. 101 S.Ct. Services 758-754, 102 at 1894-1895.

455 U.S. at S.Ct. 640, stated: 68 L.Ed.2d Law, procedural Under Indiana due "plain beyond the Lassiter declared it process requires prove to DPW multiple for citation" that a natural need statutory requisites par for termination of parent's right "desire for and to 'the relationships by clear ent-child and convine- care, companionship, custody, (1983), Ind. ing evidence. Matter VMS - - - management or her of his children'" App., 446 N.E.2d IND.CODE precious far more than an interest following sup states the must be 81-6-5-4 S.Ct., convincing property right. 452 U.S. at 101 ported by clear and evidence involuntarily parental rights Illinois, are ter quoting Stanley v. 405 at before minated: [645], [1208], 1212 U.S. at S.Ct. at When the State initi L.Ed.2d 551]. [31 (1) from the the child has been removed parental rights pro ates a termination (6) parent for at least six months decree; merely infringe ceeding, it seeks not dispositional under a interest, liberty that fundamental but to prevails,

end it. "If the State it will have unique deprivation....

worked a kind of parent's accuracy

A interest

justice of the decision to terminate his or is, parental therefore,

her status a com U.S.,

manding S.Ct., one." 452 at

at 2160. 758-759,

455 U.S. at 102 S.Ct. at 1897. light cases, of the above cited it is

clear the trial court's action here violated

procedural process due and constituted an

abuse of discretion.

Accordingly, the default is or- aside,

dered to be set and we reverse and proceedings

remand for further consistent opinion.

with this

MILLER, J., concurs.

HOFFMAN, (sitting by designation), J. opinion.

concurs in result with

HOFFMAN, Judge, concurring in result. agree

I concur in the result. I do not the trial court its abused imposing

"not a lesser sanction than de-

fault first." only other sanction available would contempt my

be and incarceration which in greater

view would be a sanction. JACKSON, Defendant/Third-Party

C.W.

Plaintiff-Appellant,

George RUSSELL, Plaintiff-Appellee, E. Industries, Inc., PPG

Third-Party /Defendant-Appellee.

No. 1-1285A313. Appeals

Court First District. DuComb, Jr., Robert J. Sharon B. Shive- Sacks, P.A., Phoenix, ly, Tierney Kasen, &

Ariz., Parr, Obremskey, Richey, Peter L. Morton, Lebanon, Obremskey & for de- fendant/third-party plaintiff-appellant.