STATE OF INDIANA ) IN THE TIPPECANOE SUPERIOR COURT 2

COUNTY OF TIPPECANOE g CASE NO: 79Do2-1912-F3-000042

STATE OF INDIANA

V.

MICHAEL BARNE'I'I‘

ORDER GRANTING DEFENDANT’S MOTION TO DISMISS IN PART

The State of Indiana has charged the Defendant, Michael Barnett, (“M.

Barnett”) with six counts of Neglect of a Dependent. The alleged victim is Natalia

Barnett, the daughter of M. Barnett and his former wife, Kristine Barnett (“K.

Barnett”). On August 17, 2020. M. Barnett filed his Motion to Dismiss the Counts

asking this Court to apply its prior ruling dismissing the Counts, in part, in the

case of the co—defendant K. Barnett. (See Order in 79D02-1912-F3—000041 issued

on August 14, 2020). M. Barnett also incorporated in the Motion to Dismiss his

Brief in Support of a Motion in Limine filed on August 7, 2020. The Court

incorporates in this order the Appendix of Exhibits filed in support of the Motion

in Limine. The Court also incorporates herein the Order 0f Dismissal, in part,

issued in the K. Barnett case mentioned above, together with briefs and evidence

presented in that matter.

I. Res Judicata. The Court finds that the doctrine of resjudicata

precludes the State 0f Indiana from charging M. Barnett with Neglect of a

Dependent to the extent that the State is relying upon Natalia’s age to allege she

is a dependent. This is so because Indiana defines a dependent as a person under

the age of 18. See I.C. 35—46-1-1(1). But in 2012, the Marion County Superior

Court (“Marion Court”) declared Natalia’s birth date to be Sept. 4, 1989, making

her 22 years old at that time. (See Order ofJune 22, 2012, Cause No. 49D08-

1206-AD—24309). That Order was affirmed on March 7, 2017. Thus, as a matter

of law Natalia was over 18 years of age during the times alleged in all Counts

against M. Barnett. Resjudicata bars the re-litigation of this issue.

The State argues it is not bound by prior judicial orders that addressed

Natalia’s age because it was not a party to those actions and the courts did not

address the merits of the age issue. However, this Court has found this argument

to be unpersuasive. Particularly, the State was a party to a 2013 Hamilton

County CPS action in which the State alleged the Barnetts neglected Natalia by

improperly re-aging her and by not providing her proper care thereafter. The

Hamilton Court dismissed that action for lack ofjurisdiction, citing the 2012

Marion County Order that declared Natalia to be an adult. The State never

appealed that decision.

Subsequently, on March 7, 2017 there was another hearing in the Marion

Court on a Motion to Vacate the Order on Age Determination issued in 2012. The

Motion cited the same grounds asserted in the Hamilton County CPS action and

here—the Order was issued without proper notice to Natalia and was based upon

inaccurate medical testimony. The Marion Court held a full hearing on the matter

and re-affirmed its 2012 order. At the hearing medical evidence was presented

and persons present included Natalia, A Guardian Ad Litem representing

Natalia’s interests, a retired Tippecanoe Count Sheriff’s Deputy, and M. Barnett.

This Court has found the above 2017 Marion Court decision was binding

upon the State because it had an opportunity to participate in the proceeding but

did not. During oral argument on M. Barnett’s Motion to Dismiss, additional

evidence regarding the State’s involvement in the Marion Court case was

presented. The Chronological Case Summary (“CCS”) shows that on April 1, 2015

Cynthia Oetjen, Deputy Marion County Deputy Prosecutor, APS Unit, filed her

Appearance in the case along with a Petition to Appoint Guardian Ad Litem

(“GAL”). (See CCS and Defendant’s Appendix In Support ofMotion in Limine, p.

64). That Appearance was never withdrawn after the denial of the GAL petition.

Therefore, the Prosecuting Attorney’s office was still listed as an interested party

in the case and was receiving all later notices issued by the court. On January 11,

2017 an automated e-notice was sent to the Deputy Prosecutor’s office notifying

of the March 7, 2017 hearing on the Motion to Vacate Order. (See CCS) The

Deputy Prosecutor did not appear or participate in the hearing where there was a

full presentation of evidence regarding the age issue, nor did anyone else from

the Prosecuting Attorney’s Office. The record also reveals that the Deputy

Prosecutor was expressly listed on the distribution list for other pleadings leading

up to that hearing. (See Defendant’s Appendix in Support ofMotion in Limine

pp. 29-30, 32-38). Further, the Tippecanoe County Deputy Prosecuting Attorney

admitted at the hearing held 0n M. Barnett’s Motion to Dismiss that her office

was also aware of the March 7, 2017 hearing and did not participate in the

hearing.

This additional information reinforces this Court’s prior finding that the

doctrines of resjudicata and collateral estoppel bars the State from asserting

Natalia was under the age of 18 because prior court proceedings, where the State

was a party and had a full and fair opportunity to litigate the issue, have found

otherwise. (Compare Chemco Transport, Inc. v. Conn. 527 N.E.2d 179 (Ind.

1988) where the party against whom estoppel was asserted had no opportunity to

participate in the prior action so it would have been unfair to have bound that

party to the prior proceeding.)

The State also argues the doctrine of resjudicata does not apply because

the Marion Court Order (a) is void, (b) lacked jurisdiction, (c) is a collateral

attack on the original Adoption Decree issued by Hamilton County, and (d) is

merely prima facie evidence of age that can be rebutted. But the Motion to

Vacate the Order on Age Determination heard by the Marion Court in 2017 made

those very same claims the State now asserts. (See Defendant’s Appendix in

Support ofMotion in Limine, Motion to Vacate Order on Age Determination, pp.

41-43.) Since the State failed to participate in the 2017 hearing after receiving

notice thereof, it has waived the right to bring forth those claims in this

proceeding.

The State also furthers its argument that a jury can disregard a prior court

order on the issue of Natalia’s age by relying on Ind. Code 16-37-2-8. This statute

provides that the probative value of a Delayed Certificate of Birth, like the one

issued here, shall be determined by the judicial or administrative body or official

before whom the certificate is offered as evidence. I. C. 16—37-2-8. In essence,

the State argues this statute allows a jury to give whatever probative value it sees

fit to the 2012 birth certificate. However, this court’s ruling is not based upon the

birth certificate. It is based upon the Marion Court Orders that determined

Natalia’s date of birth and the Hamilton Court Order that validated the finding

that Natalia was an adult. The State’s reliance upon the statute is misplaced

because it ignores the long-standing doctrines of resjudicata and collateral

estoppel that bars the State from re-litigating Natalia’s age.

Accordingly, Defendant M. Barnett’s Motion to Dismiss Counts I through

VI is GRANTED, in part, to the extent the charges rely upon alleging Natalia was

a dependent because of her age. However, the State may proceed, if it so chooses,

on its allegation that Natalia was a dependent because of a physical disability.

See Ind. Code 35—46-1—1(2).

II. Statute of Limitations. The Court also GRANTS Defendant’s

Motion to Dismiss Counts I, III, and V for the reason the State fails to allege facts

sufficient to constitute an exception to the statute of limitation as previously held

in the K. Barnett Order of Dismissal incorporated herein.

So OrderedWWWCopies:

J. Starbuck, Deputy Prosecuting AttorneyM. McConnell, Deputy Prosecuting AttorneyT. Kinnard, Attorney