clear and convincing standard in Indiana

2024“The clear-and-convincing standard is an intermediate standard of proof that lies between a preponderance of the evidence and beyond a reasonable doubt.” J.C.C. v. State, 897 N.E.2d 931, 934 (Ind. 2008) (cleaned up).

2015The clear and convincing standard is employed in cases ‘where the wisdom of experience has demonstrated the need for greater certainty, and where this high standard is required to sustain claims which have serious social consequences or harsh or far reaching effects on individuals.... ’ In re G.Y., 904 N.E.2d 1257 , 1260 n. 1 (Ind.2009) (quoting J.C.C. v. State, 897 N.E.2d 931, 934-85 (Ind.2008)).

2009"The clear and convincing standard is employed in cases `where the wisdom of experience has demonstrated the need for greater certainty, and where this high standard is required to sustain claims which have serious social consequences or harsh or far reaching effects on individuals to prove willful, wrongful and unlawful acts to justify an exceptional judicial remedy....'" Id. at 934-35 ( quoting Estate of Reasor v. Putnam County, 635 N.E.2d 153, 159-60 (Ind.1994)).

2009"The clear and convincing standard is employed in cases 'where the wisdom of experience has demonstrated the need for greater certainty, and where this high standard is required to sustain claims which have serious social consequences or harsh or far reaching effects on individuals to prove willful, wrongful and unlawful acts to justify an exceptional judicial remedy....'" Id. at 934-35 (quoting Estate of Reasor v. Putnam County, 635 N.E.2d 153, 159-60 (Ind.1994)).

2020“The clear and convincing standard is employed in cases where the wisdom of experience has demonstrated the need for greater certainty, and where this high standard is required to sustain claims which have serious social consequences or harsh or far reaching effects on individuals.” Civil Commitment of T.K. v. Dep’t of Veterans Court of Appeals of Indiana | Memorandum Decision 19A-AD-2839 | June 23, 2020 Page 12 of 14 Affairs, 27 N.E.3d 271, 276 (Ind. 2015) (citation and internal quotation marks omitted). [16] This Court has observed that imprisonment standing alone does not establish statutor

2020“The clear and convincing standard is employed in cases where the wisdom of experience has demonstrated the need for greater certainty, and where this high standard is required to sustain claims which have serious social consequences or harsh or far reaching effects on individuals.” Civil Commitment of T.K. v. Dep’t of Veterans Affairs, 27 N.E.3d 271, 276 (Ind. 2015) (citation and internal quotation marks omitted). [16] This Court has observed that imprisonment standing alone does not establish statutory abandonment.

2020Lewis v. Roberts, 495 N.E.2d 810, 813 (Ind. Ct. App. 1986) (citation omitted) (cited with approval by In re Adoption of E.A., 43 N.E.3d 592 (Ind. Ct. App. 2015), trans. denied).

2020Lewis v. Roberts, 495 N.E.2d 810, 813 (Ind. Ct. App. 1986) (citation omitted) (cited with approval by In re Adoption of E.A., 43 N.E.3d 592 (Ind. Ct. App. 2015), trans. denied).

2005Cf. M.L.H. v. State, 799 N.E.2d 1, 3 (Ind.Ct.App.2003), trans. denied, (finding sufficient evidence to support registry order where four experts testified that juvenile was at high risk to re-offend); R.G., 793 N.E.2d at 239-40 (noting expert opinion that juvenile had "demonstrated pedophilic interests" and was at high risk for recidivism); K.J.P. v. State, 724 N.E.2d 612, 616 (Ind.Ct.App.2000), trans. denied (finding testimony of two psychologists and a SAFTIP counselor sufficient to support registry requirement).

2005Cf. M.L.H. v. State, 799 N.E.2d 1, 3 (Ind.Ct.App.2003), trans. denied, (finding sufficient evidence to support registry order where four experts testified that juvenile was at high risk to re-offend) RG., 793 N.E.2d at 239-40 (noting expert opinion that juvenile had "demonstrated pedophilic interests" and was at high risk for recidivism) K.J.P. v. State, 724 N.E.2d 612, 616 (Ind.Ct.App.2000), trans. denied (finding testimony of two psychologists and a SAFTIP counselor sufficient to support registry requirement).

2005Cf. M.L.H. v. State, 799 N.E.2d 1, 3 (Ind.Ct.App.2003), trans. denied, (finding sufficient evidence to support registry order where four experts testified that juvenile was at high risk to re-offend); R.G., 793 N.E.2d at 239-40 (noting expert opinion that juvenile had "demonstrated pedophilic interests" and was at high risk for recidivism); K.J.P. v. State, 724 N.E.2d 612, 616 (Ind.Ct.App.2000), trans. denied (finding testimony of two psychologists and a SAFTIP counselor sufficient to support registry requirement).

2005Cf. M.L.H. v. State, 799 N.E.2d 1, 3 (Ind.Ct.App.2003), trans. denied, (finding sufficient evidence to support registry order where four experts testified that juvenile was at high risk to re-offend) RG., 793 N.E.2d at 239-40 (noting expert opinion that juvenile had "demonstrated pedophilic interests" and was at high risk for recidivism) K.J.P. v. State, 724 N.E.2d 612, 616 (Ind.Ct.App.2000), trans. denied (finding testimony of two psychologists and a SAFTIP counselor sufficient to support registry requirement).

2005Cf. M.L.H. v. State, 799 N.E.2d 1, 3 (Ind.Ct.App.2003), trans. denied, (finding sufficient evidence to support registry order where four experts testified that juvenile was at high risk to re-offend); R.G., 793 N.E.2d at 239-40 (noting expert opinion that juvenile had "demonstrated pedophilic interests" and was at high risk for recidivism); K.J.P. v. State, 724 N.E.2d 612, 616 (Ind.Ct.App.2000), trans. denied (finding testimony of two psychologists and a SAFTIP counselor sufficient to support registry requirement).

2005Cf. M.L.H. v. State, 799 N.E.2d 1, 3 (Ind.Ct.App.2003), trans. denied, (finding sufficient evidence to support registry order where four experts testified that juvenile was at high risk to re-offend) RG., 793 N.E.2d at 239-40 (noting expert opinion that juvenile had "demonstrated pedophilic interests" and was at high risk for recidivism) K.J.P. v. State, 724 N.E.2d 612, 616 (Ind.Ct.App.2000), trans. denied (finding testimony of two psychologists and a SAFTIP counselor sufficient to support registry requirement).

1995This decision does not involve a weighing of the evidence but only a review, a search, a sifting to ascertain if there was any at all from which a reasonable man, employing the clear and convincing rule, could have found that [Budget's] conduct, Id. at 1024 (emphasis in original), was willful and wanton, or that Budget acted with malice, oppression or gross negligence in representing the price of the car.

1995This decision does not involve a weighing of the evidence but only a review, a search, a sifting to ascertain if there was any at all from which a reasonable man, employing the clear and convincing rule, could have found that [Budget's] conduct, Id. at 1024 (emphasis in original), was willful and wanton, or that Budget acted with malice, oppression or gross negligence in representing the price of the car.

2012We further observe that utilization of this clear and convincing standard of proof comports with the United States Supreme Court’s mandate that an intermediate standard of proof be applied when an individual’s interests at stake in a particular state proceeding are both “particularly important” and “more substantial than the mere loss of money.” See Santosky v. Kramer, 455 U.S. 745, 756 (1982).

1985The clear and convincing standard is required as to each element of the statutory requirements for termination, Sentosky v. Kramer (1982) 455 U.S. 745 , 102 S.Ct. 1388 , 71 LEd.2d 599; Ellis v. Knox County Dept. of Public Welfare (1982), Ind.App., 433 N.E.2d 847 .

2024See, e.g., Bivins v. State, 642 N.E.2d 928, 950 (Ind. 1994) (finding that a jury instruction requiring a mitigating fact or circumstance at sentencing be established as “more likely true than not” correctly identified the preponderance-of-evidence burden of proof); In re A.M.H., 732 N.E.2d 1284, 1286 (Ind. Ct. App. 2000) (describing the clear-and- convincing standard as “considerably higher than the ‘more likely than not’ implications” of the preponderance-of-the-evidence standard “typically applied in civil cases.”).

2024See id.; cf. Melloh, 309 N.E.2d at 440 (discussing the clear and convincing standard for imposing a constructive trust, “reiterat[ing] that this standard . . . is established to guide the trier of fact” and an appellate court “would be departing afar from deeply [e]mbedded appellate principles if [the court] were to selectively substitute [its] judgment on appeal”).

2024See, e.g., Bivins v. State, 642 N.E.2d 928, 950 (Ind. 1994) (finding that a jury instruction requiring a mitigating fact or circumstance at sentencing be established as “more likely true than not” correctly identified the preponderance-of-evidence burden of proof); In re A.M.H., 732 N.E.2d 1284, 1286 (Ind. Ct. App. 2000) (describing the clear-and- convincing standard as “considerably higher than the ‘more likely than not’ implications” of the preponderance-of-the-evidence standard “typically applied in civil cases.”).

2019See, e.g., Castro v. State Office of Family & Children, 842 N.E.2d 367, 377 (Ind. Ct. App. 2006) (“Our General Assembly has adopted the clear and convincing standard for termination cases, the Indiana Supreme Court has consistently applied it, and the United States Supreme Court has held that such a standard satisfies the requirements of due process”).

2019Yet “[t]he legislature has wide latitude in defining the existence and scope of a cause of action and in prescribing the available remedy,” KS&E Sports v. Runnels, 72 N.E.3d 892, 906 (Ind. 2017), and our legislature was within its right to determine the burden of proof in termination cases to be the clear and convincing standard.

2019See Meyer v. Marine Builders, Inc., 797 N.E.2d 760, 771 (Ind. Ct. App. 2003) (noting that “Indiana law is clear that whether the evidence meets the clear and convincing standard is not the proper inquiry on a summary judgment motion because such inquiry merely invites a weighing of the evidence.”) Conclusion 3 3 As Medsker’s claim for declaratory relief is premised upon the absence of a mutual mistake of fact, we also reverse the trial court’s grant of summary judgment on this issue and remand for further proceedings.

2018T.D. v. Eskenazi Health Midtown Cmty. Mental Health Ctr., 40 N.E.3d 507, 510 (Ind. Ct. App. 2015) (citing Ind. Code § 12-26-7-1 ); Ind. Code § 12-26-2-5 (e) (setting forth the clear and convincing standard).

2016In T.K, our supreme court recently criticized a line of cases in which this Court did not adequately apply the clear and convincing standard of review and instead affirmed civil commitment orders if such an order “ ‘represented] a conclusion that a reasonable person could have drawn, even if other reasonable conclusions [were] possible.’ ” Id. (quoting ML. v. Meridian Servs., Inc., 956 N.E.2d 752, 755 (Ind.Ct.App.2011)).

2013See H.W.K. v. M.A.G., 426 N.E.2d 129, 133 (Ind. Ct. App. 1981) (“Paternity actions are civil proceedings and the alleged father must be proved to be such by a preponderance of the evidence.”).

2012Regarding our appellate standard of review, the Indiana Supreme Court has repeatedly stated that appellate courts must give ‘“due regard” to the trial court’s unique opportunity to judge the credibility of the witnesses.” See In re I.A., 934 N.E.2d 1127, 1132 (Ind. 2010).

2008Co. v. Armstrong, 442 N.E.2d 349, 360-61 (Ind.1982)).

2003The financial condition of the defendant is relevant, Hibschman Pontiac, Inc. v. Batchelor, 266 Ind. 310, 317 , 362 N.E.2d 845, 849 (1977), which it would not be if the goal were to compensate the plaintiff, as opposed to deterring or punishing the defendant. 2 Proof is required by a clear and convincing standard rather than a preponderance of the evidence standard.

2003The financial condition of the defendant is relevant, Hibschman Pontiac, Inc. v. Batchelor, 266 Ind. 310, 317 , 362 N.E.2d 845, 849 (1977), which it would not be if the goal were to compensate the plaintiff, as opposed to deterring or punishing the defendant. 2 Proof is required by a clear and convincing standard rather than a preponderance of the evidence standard.