Updates on new judicial legislation

Posted By: The Reporter April 5, 2019

The Indiana Courts website provides updates on new legislation pertaining to judicial law. Read the latest updates below.

Fertility and fraud deception

For amend and vote only, the House Judiciary Committee heard SB 174 on fertility fraud and deception, sponsored by Rep. Pressel. The bill establishes a cause of action for civil fertility fraud and provides that a prevailing plaintiff may be awarded: (1) compensatory and punitive damages; or (2) liquidated damages of $10,000 and specifies the statute of limitations for civil fertility fraud. The bill also increases the penalty for deception involving the identity of a person or the identity or quantity of property to a Level 6 felony if the offense involves a misrepresentation relating to: (1) a medical procedure, device, or drug; or (2) human reproductive material and urges the legislative council to assign the topic of fertility laws to an appropriate study committee. The bill was amended by consent to delete “or” and insert “and” on page 4, line 21 of the bill.

The amended bill passed 12-0. Click here to read the bill.

Child support modification

The House Judiciary Committee heard SB 206 on child support modification, sponsored by Rep. Steuerwald. The bill defines, for purposes of child support modification, an order with respect to child support. The bill passed 9-0. Click here to read the bill.

Expungements

The House Courts and Criminal Code Committee heard SB 235, concerning criminal expungements and expungements of certain protection orders, sponsored by Rep. J. Young and Rep. Steuerwald. This bill requires the expungement of certain collateral actions to the criminal expungement order, including administrative proceedings, arrests and delinquency adjudications which are related to criminal charge which is being expunged. The bill clarifies that records ordered expunged include arrests and criminal dismissals would be sealed.

The Committee adopted two amendments by consent – one which provides the need to get a court order to clean up older expungements, which occurred before this new law is effective, and another which requires the Indiana State Police or the agency which entered the criminal history into IDACS to remove the item from IDACS.

A representative from the Indiana Coalition Against Domestic Violence (ICADV) expressed concern about portions of the bill. The bill passed as amended 8-3. Click here to read the bill.

Various trust matters

For amend and vote only, the House Judiciary Committee heard SB 265 on various trust matters, sponsored by Rep. Steuerwald. The bill does the following:

  • Defines “designated representative”, “judicial proceeding”, and “nonjudicial matter” for purposes of the trust code.
  • Authorizes the establishment of legacy trusts.
  • Prescribes the procedures for establishing a legacy trust and requirements for claims under a legacy trust.
  • Provides that a court shall exercise jurisdiction over a legacy trust or a qualified disposition and adjudicate a case or controversy regarding the legacy trust, if the case or controversy is within the subject matter of the court.
  • Adopts the uniform directed trust act, which allows for the terms of a trust to grant a person other than a trustee power over some aspect of the trust’s administration.
  • Provides that current law regarding the duties and liabilities of a trustee of a trust under the control of a third person applies to directions given to a trustee before July 1, 2019, by a person who has power under the terms of the trust to direct the trustee.
  • Allows for the use of quiet trusts.
  • Provides that an interested person may enter into a binding nonjudicial settlement agreement with respect to trust matters.
  • Provides for nonjudicial account settlements.

The committee did not amend the bill and the bill passed 8-2. Click here to read the bill.

Parenting time

The House Judiciary Committee heard SB 323 on parenting time, sponsored by Rep. Cherry. The bill authorizes a court to require a parent to submit to drug testing as a condition of exercising parenting time rights if the court finds that: (1) the parent has a history of unlawful drug use within the previous five years; or (2) there is a reasonable likelihood that the parent is currently using unlawful drugs. The bill also specifies that the parent shall pay the costs of the drug testing and provides that, if a court grants parenting time to a person who has been convicted of: (1) child molesting; or (2) child exploitation; within the previous five years, the court shall order that the parenting time must be supervised.

The Indiana Township Association and a parent testified in support of the bill. The bill passed 10-0. Click here to read the bill.

Probate matters

The House Judiciary Committee heard SB 518 on probate matters, sponsored by Rep. Steuerwald. The bill does the following:

  • Allows a person to contest two or more wills if there is prima facie evidence that: (1) the decedent suffered from an irreversible medical or psychiatric condition that predated the earliest will to be challenged; or (2) a party beneficially interested in one or more of the challenged wills had a direct and active nexus with the preparation or execution process for each will to be challenged.
  • Requires that the court review all attorney’s fee claims at the conclusion of the will contest, and the award and allocation of attorney’s fees paid from the estate be solely at the discretion of the court.
  • Specifies that the issuance of a court order on any matter related to an unsupervised estate does not revoke the personal representative’s authority to continue the administration of the estate as an unsupervised estate.
  • Authorizes the Indiana Supreme Court and office of judicial administration to establish and administer a statewide electronic estate planning documents registry (registry).
  • Allows certain individuals to deposit the following items into the registry: (1) An electronic will. (2) An electronic trust instrument. (3) An electronic power of attorney. (4) Any electronic document that revokes or amends an electronic will, electronic trust instrument, or electronic power of attorney.
  • Requires the administrator of the registry to catalog submitted items according to the following: (1) The name of the testator, settlor, or principal. (2) The county of residence for the testator, settlor, or principal. (3) The date of execution for an electronic estate planning document. (4) The date of submission to or deposit with the registry of information pertaining to an electronic estate planning document. (5) The name of any attorney responsible for the preparation or execution of an electronic estate planning document.
  • Requires the registry administrator to make the registry index: (1) available to; and (2) searchable by; the public.
  • Requires the registry administrator to keep the substantive content of electronic documents submitted to or deposited with the registry private, secure, and inaccessible to the public.
  • Requires the registry administrator to issue a certified report concerning the existence of certain items submitted to or deposited with the registry in certain instances.
  • Requires the registry administrator to issue a certified transcript of certain documents submitted to or deposited with the registry in certain instances.
  • Allows the registry administrator to charge fees in certain instances.
  • Revises definitions for the following terms: (1) “Document integrity evidence”. (2) “Tamper evident”.
  • Defines the term “specified adult” as a person who: (1) is not less than 65 years of age; or (2) is a person that: (A) is at least 18 years of age; and (B) has a mental or physical impairment that prohibits the person from protecting the person’s interests.
  • Allows certain individuals to act on behalf of a specified adult in certain instances involving the financial exploitation of the specified adult.
  • Provides that if a transfer on death deed has been recorded before the death of the owner, a subsequent conveyance is void if it is not recorded before the death of the owner with the recorder of deeds in the county where the real property is situated.
  • Establishes dates that determine when certain probate statutes apply.
  • Requires a court to issue certain findings before exempting encumbered real property from certain restrictions concerning the sale of the real property.
  • Allows the devolution of real estate title to be demonstrated by prima facie evidence.
  • Specifies how devolution of real estate title may be demonstrated.
  • Requires the estate recovery unit of the office of Medicaid policy and planning to provide notice of a claim against an estate in certain instances.

The bill was amended by consent to do the following: recognize the small estate threshold of $25,000 for the estate of an individual who dies before July 1, 2007; add a definition of “petition for administration” and “unit address”; provide a process for filing a notice of administration; remove certain reporting requirements regarding small estate administration to the estate recovery unit of the office of Medicaid policy and planning; and make technical corrections. The Indiana State Bar Association and the Office of the Attorney General testified in support of the bill and amendments. The amended bill passed 9-0 and was recommitted to House Ways and Means.

For amend and vote only, it was also heard this week in House Ways and Means. The bill passed 16-0. Click here to read the bill.

Drug penalties

The House Courts and Criminal Code Committee heard SB 519 on drug penalties, sponsored by Rep. McNamara. The bill provides that if a person commits the offense of dealing or an attempt or conspiracy to commit dealing in a controlled substance, the person may be tried in any county where the person performed an act in furtherance of the offense. Replaces heroin with cocaine or a narcotic drug in certain offense enhancements in the offense of dealing in cocaine or a narcotic drug. It also adds an element to certain offense enhancements relating to controlled substances by aggregating the weight of a drug over a period of not more than 90 days.

Rep. McNamara introduced two amendments adopted by consent, which sent the legislation to an interim study committee. The first amendment sent a portion of the bill to an interim committee to study drug penalties and their fairness and the second amendment sent a part of the proposed law to an interim study committee to explore proportionality of criminal penalties and enhancements.

Representatives from the Indiana Prosecuting Attorneys Council and the Attorney General’s Office testified in favor of the bill. The amended bill passed 11-0. Click here to read the bill.

Department of Child Services

For amend and vote only, the Senate Appropriations Committee heard HB 1006 on the Department of Child Services (DCS) sponsored by Sen. Houchin. This bill:

  • Provides that an older youth who received foster care is eligible to receive collaborative care services until the individual becomes 21 years of age;
  • Provides that the caseload of a family case manager may not be more than: (1) 12 active cases relating to initial assessments; (2) 12 families in active cases relating to ongoing in-home services; or (3) 13 children in active cases relating to ongoing services who are in out-of-home placements;
  • Requires DCS to initiate an assessment immediately, but not later than two hours (rather than one hour, under current law), after receiving a report of child abuse or neglect if DCS believes the child is in immediate danger of serious bodily harm.
  • Requires DCS to provide a report concerning an assessment or investigation of a report of suspected child abuse or neglect not later than 45 days after DCS initiates the assessment if the report of suspected child abuse or neglect was received from certain entities;
  • Provides that a child is a child in need of services if the child’s parent, guardian, or custodian has failed to supply the child with necessary food, clothing, shelter, medical care, education, or supervision: (1) when the parent, guardian, or custodian is financially able to do so; or (2) due to the failure, refusal, or inability of the parent, guardian, or custodian to seek financial or other reasonable means to do so.

The bill passed 13-0. Click here to read the bill.

Department of Child Services matters

For amend and vote only, the Senate Family and Children Committee heard HB 1198, sponsored by Sen. Grooms, on Department of Child Services (DCS) matters, which generally provides for implementation of requirements from the federal Families First Prevention and Services Act (FFPSA) by DCS. The legislation:

  • Defines “child” for purposes when termination of parental rights must be filed, to be under 18 years of age and either a delinquent or CHINS;
  • Requires background checks on all individuals (employees, volunteers and contractors) who work at an institution, not just direct care staff;
  • Permits denial or revocation of licenses for all individuals (employees, volunteers and contractors) who work at an institution, not just direct care staff;
  • Requires a foster care verification form be given to a child leaving foster care or was in foster care for six months or more;
  • Deletes the $500 threshold amount of child support in which a Title IV-D agency may begin to collect a fee and requires use of the threshold amount in federal law under 42 U.S.C. § 654(6);
  • Amends the list of nonwaivable offenses of offenses and provides certain convictions have five-year limitations for waiver, when conducting background checks for placements for children in accordance with reimbursement requirements under federal law, including placements for adoptions, temporary out-of-home placements for alleged CHINS taken into custody, placements of a child in another home as a disposition in a CHINS case, placements as part of a permanency plan, and placements as a disposition in a delinquency case;
  • Adds DCS employees to the list of persons who may request a court, municipality or township to restrict access to the individual’s home address.

Representative Frizzell, author, explained the amendment to the list of nonwaivable offenses was required by new FFPSA requirements, as were other aspects of the legislation. Sen. Houchin proposed an amendment to the legislation which passed, to require the completion of sentencing as part of the five-year limitation on waiver of certain offenses.

The amended bill passed 6-0. Click here to read the bill.

Prohibited name changes

For amend and vote only, the Senate Committee on Corrections and Criminal Law heard HB 1208, sponsored by Sen. Grooms and Sen. Houchin on prohibited name change. The bill that passed the House amended the current law that prohibits a person who is confined to a Department of Correction facility from filing a change of name petition. It added to the persons prohibited from filing a change of name petition anyone who has been convicted of being a sex or violent offender as defined in IC 11-8-8-5(a).

Committee Chairman Michael Young offered Amendment No. 6 that: 1) prohibits seeking a name change to only a lifetime sex or violent offender, and allows even a lifetime offender to petition for a name change based on a sincerely held religious belief; 2) adds to the information to be provided on a marriage application, divorce petition, application restoring a previous married or unmarried name, and a petition for adoption, whether a person is a lifetime sex or violent offender; and, 3) allows for the approval of marriage, divorce, name change, or adoption only after the offender provides proof of written notice of filing for approval with the sheriff of the county of conviction and county of residence. This amendment was adopted by voice vote without dissent.

The amended bill passed 6-0. Click here to read the bill.

Electronic criminal case management system

The Senate Judiciary committee heard HB 1299 sponsored by Sen. Glick concerning an electronic criminal case management system. This bill provides that the Office of Judicial Administration shall develop and implement a standard protocol to electronically send or receive at least one time each week criminal case information between the administrator’s court case management system and an electronic repository to determine if the individual is a veteran in the U.S. Department of Defense database of individuals with prior active military service and in the national guard registries for use by county prosecutors, a veterans’ court, and other entities to address the needs of veterans in the court system.

The bill was amended by consent to provide an information sharing agreement between the Office of Judicial Administration and the office of United States Veterans Affairs. Testifying in support was Amy Levander on behalf of the Indiana Supreme Court; the Reserve Officers Association; the Indiana Public Defender Council, and the Veterans Coalition of Indiana. The amended bill passed 9-0. Click here to read the bill.

Electronic estate planning

The Senate Judiciary committee heard HB 1591, sponsored by Senator Koch, concerning electronic estate planning and other probate matters. This bill allows a person to contest two or more wills if there is prima facie evidence that the decedent suffered from an irreversible medical or psychiatric condition that predated the earliest will to be challenged, or a party beneficially interested in one or more of the challenged wills had a direct and active nexus with the preparation or execution process for each will to be challenged.

The bill specifies that the issuance of a court order on any matter related to an unsupervised estate does not revoke the personal representative’s authority to continue the administration of the estate as an unsupervised estate.

The bill further provides that restrictions concerning the sale of real estate by an estate executor or administrator for the purpose of defraying the debts or obligations of a decedent are inapplicable in certain instances, specifies how prima facie evidence of the devolution of real estate title to distributees may be established, and specifies recording requirements for affidavits concerning the devolution of real estate titles.

One amendment was taken by consent. The amendment removed the previous language of the bill that increased the small estate cap from $50,000 to $100,000, allows a judge to decide on attorney fees in a will contest, and provides for the establishment of an electronic will registry. The Indiana Bar Association probate section testified in support of the bill. The amended bill passed 9-0. Click here to read the bill.

Judicial evaluation of dangerous individuals

The Senate Judiciary Committee heard HB 1651 sponsored by Sen. Houchin regarding judicial evaluation of dangerous individuals, otherwise known as the Jake Laird law. This bill requires the Office of Judicial Administration to collect, monitor, and publish certain statistics related to the confiscation and retention of firearms taken from dangerous individuals.

The bill requires a court to wait until after the conclusion of certain hearings before providing findings related to a person’s dangerousness to the Office of Judicial Administration. The bill further provides that a dangerous person is not a proper person for the purpose of applying for or receiving a license to carry a handgun and provides that a dangerous person who knowingly or intentionally rents, purchases, receives transfer of, owns, or possesses a firearm commits dangerous possession of a firearm as a Class A misdemeanor. A person who knowingly or intentionally rents, transfers, sells, or offers for sale a firearm to a person that a court has found to be dangerous or prohibited from owning or possessing a firearm commits dangerous transfer of a firearm, a Level 5 felony.

The bill also details the procedure for a law enforcement officer that seizes a firearm from a dangerous person without a warrant and the court procedure when the State petitions for seizure of firearms from a dangerous person and the court finds, or does not find, the person to be dangerous.

Four amendments were passed by the committee.

The first amendment eliminated certain reporting requirements for individuals not yet afforded an opportunity to be heard and raised the burden of proof for the State by changing the definition of “dangerous.”

The second amendment allows qualified retired law enforcement officers to carry a weapon without a permit.

The third amendment provides waiting periods for children alleged to be delinquents–a child alleged to be delinquent that commits the equivalent of a Level 6, 5, 4, and 3 felony must wait until age 26 to possess a handgun and a child alleged to be delinquent that commits the equivalent of a Level 1 or 2 felony or murder must wait 10 years from conviction to possess a handgun.

The fourth amendment allows a person to legally possess a handgun on school property if they are participating in a worship service and eliminates the fee for five-year handgun permits.

Testifying in favor of the bill was the mother of Jake Laird; the Hamilton County Prosecutor; a Second Amendment attorney; two citizens; and Everytown for Gun Safety. The amended bill passed committee 5-4 and is recommitted to the Tax and Fiscal Policy Committee. Click here to read the bill.

SHARE TWEET PIN SHARE