In the Guardianship of S.S. and J.N., Minor Children, Marla New v. Kenneth Scrogham and Teresa Scrogham (mem. dec.) ( 2016 )

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be Oct 14 2016, 8:42 am
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEES
Mary Beth Mock Jason J. Pattison
Law Office of Mary Beth Mock Jenner, Pattison, Sutter & Wynn,
Madison, Indiana LLP
Madison, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Guardianship of S.S. and October 14, 2016
J.N., Minor Children, Court of Appeals Case No.
39A01-1512-GU-2289
Appeal from the Jefferson Circuit
Marla New, Court
Appellant-Respondent, The Honorable Darrell M. Auxier,
Judge
v.
Trial Court Cause No.
39C01-1405-GU-23
Kenneth Scrogham and Teresa
Scrogham,
Appellees-Petitioners.
Brown, Judge.
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[1] Marla New (“Mother”) appeals the trial court’s order granting the petition for
guardianship of her daughter, S.S., filed by S.S.’s paternal grandfather Kenneth
Scrogham and his wife Teresa (collectively, the “Scroghams”) and the denial of
her motion to correct error. Mother raises four issues which we consolidate and
restate as whether the court abused its discretion in granting the petition for
guardianship. We affirm.
Facts and Procedural History
[2] Mother and Robert Scrogham are the biological parents of S.S., born February
22, 2004.1 Mother and Brent Hammons are the biological parents of J.N., born
May 25, 2005.
[3] At some point, there were allegations that Mother had individuals staying at her
home, that there was some sort of argument between one of those individuals
and S.S., that someone pushed S.S., and that this person was still residing in the
home. On April 22, 2014, Mother told Family Case Manager Dosha Campbell
(“FCM Campbell”) that her niece and her niece’s boyfriend, Derrick Gotts, had
been staying there “on and off,” that Gotts pushed S.S., and that as soon as
Mother found out about it she made her niece and Gotts leave the home
because they had “the evil spirits.” Transcript at 14-15. Mother made some
“odd statements” regarding evil spirits and demons and said that she “would
1
At the May 13, 2014 hearing, the Scroghams’ attorney indicated that he had a waiver and notice of hearing
and consent to guardianship signed by Robert Scrogham. At the time of the December 2, 2014 hearing,
Robert Scrogham was incarcerated.
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tell S.S. to get on the right of her because that’s where the good spirits were
were on the right.” Id. at 15.
[4] The next day, FCM Campbell went back to Mother’s home, and Mother said
that she was going to church, made a comment that “the Calvary was coming
behind her,” she “just seemed really happy,” and she talked about going to the
ocean and washing the demons away from her. Id. at 16. FCM Campbell did
not think that Mother was necessarily under the influence of anything, but
“thought that things were just odd, maybe more in the mental health issue.” Id.
at 18. FCM Campbell performed a drug screen, and it was positive for
marijuana.
[5] That same day, Pastor Peter A. Joudry, the lead pastor of Madison Assembly of
God, was praying publicly when Mother, who had attended the church a few
times and had been a part of a Bible study, came down the aisle with some
feathers, shells, leaves, spice, and a package of cigarettes. Mother was dressed
in “cowboy, western, maybe Indian dress” and was walking directly toward
Pastor Joudry who stepped to the side. Id. at 7. Mother then walked by him,
went onto the platform, sat cross-legged, and placed the items in front of her.
Pastor Joudry asked her what she was doing, and Mother said that the devil
was on the left and God was on the right and that she could prove it biblically.
Pastor Joudry eventually asked Mother to take her seat, and Mother left the
items on the platform and took a seat. Mother’s back was turned to Pastor
Joudry and it “seemed like she might have been doing some --- maybe some
ritual thing or bowing or whatever.” Id. at 8. Pastor Mia Tran eventually came
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and escorted Mother into the lobby and Pastor Joudry “discerned at the time
that . . . there may be some psychological issues . . . .” Id. at 9.
[6] On April 24, 2014, City of Madison Police Officer Brandon Decker was
dispatched to Mother’s townhouse regarding a “juvenile problem” around 9:00
p.m. after the neighbors called the police. Id. at 21. As he arrived, Officer
Decker could hear screaming and it “sounded like a woman and children.” Id.
Officer Decker drew his service weapon, announced his presence, knocked, and
entered the residence through an unlocked door. The lights of the residence
were off, Officer Decker illuminated the room with his service pistol’s mounted
flashlight, and Mother calmly invited him inside.
[7] Officer Decker observed S.S. and J.N. sitting on the couch, and they “seemed
to be plastered against the couch very fearful of the situation that was going
on.” Id. at 22-23. He asked if there was someone else in the residence, and
Mother stated that she was “ridding the house of evils.” Id. at 23. The children
then became “extremely upset” and burst out in tears and were crying louder,
and Officer Decker turned on the lights. Id. He observed that the children were
not wearing shoes or socks and that there was a “glass casserole-type server at
their feet full of water” sitting on a towel. Id. He found that “odd” and went to
speak with Mother in the kitchen. Id.
[8] Mother told Officer Decker that “they were ridding the house of evils,” and he
asked her if she was on any type of medication because he could “kind of tell
she was at an abnormal state-of-mind.” Id. Mother told him that she was not
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on medication, but said: “I smoked pot earlier today, but that was years ago.”
Id. at 24. Officer Decker noticed that there were trash bags containing school
books, clothes, and an appliance, and that Mother had thrown away one shoe
out of each pair of the children’s shoes. Mother said that she was going to ride
her pony to South Carolina to marry her Indian husband.
[9] Officer Decker asked the children about the pan of water, and they became
upset and said that Mother had been repeatedly washing their feet and that
Mother’s “activity was scaring them.” Id. at 25. Medical personnel arrived and
took Mother to the hospital for a mental evaluation. The children were
released to Kenneth Scrogham who was called to the scene.
[10] Family Case Manager Cynthia Adams (“FCM Adams”) went to the scene and
observed that the children were scared and crying. S.S. led FCM Adams to the
kitchen to show her some of Mother’s writings in four or five notebooks that
contained “a lot of erratic-looking kind of writings, spiritual stuff . . . .” Id. at
32. FCM Adams did not “go through all the stuff, but there was apparently one
of [S.S.’s] books that had a butterfly or something on it that [Mother] thought
was evil and tore her text book up.” Id. at 33. Mother spent the night at the
hospital and then went to Clark County Behavioral Health where she stayed for
eleven days.
[11] On May 5, 2014, Family Case Manager Daniel Hoffman (“FCM Hoffman”)
was contacted by someone who stated that the children had exited the bus or
that Mother had taken the children off the bus and there were some concerns
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about whether or not the children should be with Mother. FCM Hoffman
arrived at Mother’s house and spoke with her. Mother said that she had left the
hospital at 11:00, that people do not understand her spiritual side, and that she
can see things that other people cannot see. Mother was a “bit erratic” and was
speaking “kind of fast,” and “it was hard to kind of follow what she was
saying.” Id. at 48. The children seemed nervous. The principal from the
children’s school arrived and talked to Mother while FCM Hoffman took S.S.
outside the home and spoke to her. S.S. broke down in tears and said that she
was scared to be there, was “afraid this is all going to happen again,” and that
she thought that her Mother needed help. Id. at 47. FCM Hoffman felt
uncomfortable for the children to be there. The principal exited the residence
and indicated that she had talked with Mother and they had decided for the
children to go with the grandparents.
[12] On May 7, 2014, the Scroghams filed a Petition for Appointment of Temporary
Co-Guardians Over Persons and Estates of Minor.2 On May 13, 2014, the
court held a hearing on the petition. Pastor Joudry, FCM Campbell, Officer
Decker, FCM Adams, Teresa Scrogham, and Mother testified.
[13] Mother testified that she was unemployed, received social security disability for
agoraphobia, did not have a fiancé, and told people that she had an Indian
fiancé because she feels like “there is someone for me out there and that he will
2
The record does not contain a copy of the petition.
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come, and I won’t be alone to raise the kids all by myself anymore.” Id. at 35.
She testified that she is an Indian and that “[w]e rode our ponies out west and
then we rode the iron horses back.” Id. When asked why she was washing her
children’s feet, she stated that she was washing dirt off their feet and that it
calmed them down. She said that J.N. was struggling and screaming and she
may have raised her voice, and that she smokes marijuana “daily if I can.” Id.
at 36. She testified that she went to the church that day to let them know that
she knows there is a God, she denied hearing voices or having hallucinations,
and indicated that she was going to follow up with mental health counseling.
She testified that she had a car but did not have a driver’s license because she
was working on paying some fines.
[14] Teresa testified that J.N. is not biologically related to her or Kenneth but that he
has always known them as “ma-maw” and “pa-paw.” Id. at 50. Teresa
testified that S.S. lived with them in 2006 for about seven months and that there
were other periods of time a couple of weeks here and there when Mother
called them and said that she was out of food or that her electricity was turned
off and asked them to take S.S. for a while so that S.S. “wouldn’t be without.”
Id. at 52.
[15] At the end of the hearing, Mother testified: “I understand what you all are
trying to do, and I’m so glad you’re trying to help, and if the Judge feels like
they need to stay with you a little longer that’s fine with me.” Id. at 61. The
court granted a temporary guardianship.
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[16] On August 7, 2014, the Scroghams filed a Petition for Appointment of Co-
Guardians Over Persons and Estates of Minors.3 On September 25, 2014, J.N.
was returned to Mother following allegations by three of the Scroghams’ young
grandsons of acts between them and J.N. On November 17, 2014, the court
entered an Agreed Order to Terminate Temporary Guardianship of J.N. and to
Dismiss Petition for Permanent Guardianship Concerning J.N. 4
[17] On December 2, 2014, the court held a hearing. Mother testified that she did
not consider marijuana a drug, that she last smoked marijuana “probably---a
month ago,” and that she smokes it “occasionally” or “[o]nce a week, twice a
week.” Id. at 103. She stated that after being released from Clark County
Behavioral Health, she was given Prozac and Zyprexa for depression and
anxiety, took them for maybe a week, and then stopped taking them because
she “just didn’t feel right” and “[t]hey just weren’t for” her. Id. at 109. She
indicated that she followed up with Centerstone and had an initial therapy
session on November 29, 2014, and then one other therapy session. She
testified that she tried to contact Lifesprings, but they said she needed a referral.
She also testified that she tried to contact DCS, but they said that they did not
have a case on her so they could not refer her. She again denied having
3
The record does not contain a copy of the petition.
4
The record does not contain a copy of the agreed order.
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delusions and when asked about what occurred at the church on April 23, 2014,
with the “Indian ritual,” she answered:
I wouldn’t call it an Indian ritual, but the best way to describe
that is I felt like I needed to go over there, and that’s the place
you take things that you don’t want on you anymore, and I had a
spiritual experience then. I took them over there and uh---
exercised [sic] some demons if you---that’s what happened.
Id. at 111. With respect to the washing of her children’s feet, Mother testified
that the “children’s pastor of the church told me that when they get upset and
they’re tired, she said, ‘Put water and oil on their feet and massage their feet,
and it calms them down.’” Id. at 112. She also testified that she receives food
stamps and that the children receive Medicaid. The court ordered that the
temporary guardianship continue for the next ninety days.
[18] On June 25, 2015, the court held another hearing. Mother testified that she had
been unemployed since 2010 and received disability for “[a]goraphobia and
panic and anxiety.” Id. at 274. She stated that she was diagnosed with PTSD
and that her Centerstone records showed a long history of a bipolar diagnosis,
but that she did not believe that she is bipolar. She testified that she first saw a
mental health provider after she was struck from behind while riding a moped
in 2010. She again denied ever having hallucinations or delusions, but
conceded that her Centerstone records indicated that she had. She indicated
that Clark County Behavioral Health discharged her after an eleven-day in-
patient stay following the April 2014 incident and that they told her to follow
up with her local community mental health provider, but she did not
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immediately do so. She was discharged with two medications, Prozac and
Zyprexa. She stated that she then did not receive any mental health treatment
until she received an evaluation in November 2014 from Centerstone, that she
agreed with the records indicating that she had been there eight times since
then, and that she missed one appointment but did not recall why. She also
testified that she was currently on Paxil and Trazadone, that if S.S. was
returned to her, she would continue to seek mental health treatment, and that
she had not used marijuana since January 2015.
[19] She testified that she still did not have a driver’s license and had only twenty-
five dollars left to pay before she could be reinstated in Indiana and also
acknowledged that her driving record indicates that she has at least $375 in
reinstatement fees.5 She also acknowledged that she had thrown away a
working PlayStation.
[20] Guardian ad litem Marita J. Berry (“GAL Berry”) testified that she was first
assigned the case in August 2014. When asked what was in S.S.’s best interest,
GAL Berry testified that S.S. does much better with her grandparents and that
S.S. has never wavered in her statement that she is afraid of the things Mother
does and is still afraid to be at her Mother’s home. As for J.N., GAL Berry
testified that she last saw him a week earlier, that he was clean, seemed to be
5
Mother stated: “after I pay the 25-dollar fine I’ll be eligible to be reinstated. You have to pay the 25 before
you can get started on the 380.” Transcript at 306. She later stated: “Once the 25 dollars is paid over here---
or, no, that doesn’t even apply.” Id.
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doing fine, and was happy to be with Mother. When asked about whether
Mother was going to physically harm S.S., GAL Berry stated that “S.S. has told
me every single time that [Mother] flies into a rage, she beats her chest, she
screams, and that terrifies S.S. Now that’s not physical, but that’s certainly
emotional abuse, and that is in my report.” Id. at 326.
[21] After the Scroghams rested, Mother testified that she identified as being a
Native American member of the Miami tribe, that she practiced a mixture
between Native American spirituality and Christianity, that she believed in the
Bible, God, the devil, and demons, and explained the purpose of tobacco and
sage in Native American culture.
[22] On October 29, 2015, the court granted the petition for guardianship and
ordered that Mother have parenting time with S.S. pursuant to the Indiana
Parenting Time Guidelines in a very detailed, nineteen-page order which states
in part:
FINDINGS OF FACT
*****
17. On April 24, 2014, Brandon Decker, a Madison Police
Department officer, was dispatched to Mother’s home in
response to a disturbance call. Upon arriving he could hear
screaming coming from a downstairs open window of Mother’s
home. The screaming was so loud that he could hear it while
still seated in his patrol car. Decker knocked and announced his
presence but received no response. He then made entry into the
home and discovered Mother, S.S. and J.N. in the living room.
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The children were the source of the screaming. Both children
appeared to be very fearful and “plastered” to the couch. Decker
asked Mother what was going on and she replied that she was
ridding the house of evil. The children then got extremely upset
and began crying. Decker observed that the children did not
have shoes and socks on and that there was a pan of water and a
towel on the couch. Mother did not seem normal and Decker
asked her if she was on medication. She replied that she had
smoked marijuana earlier that day but that was years ago. She
told Decker that she was removing all evil items from the house.
There were garbage bags filled with belongings in the home.
Textbooks, toys, medicine, and a playstation were some of the
items being thrown away. One shoe out of every pair was
thrown away and shoelaces were thrown away because they were
evil. Mother later testified that the kids were screaming because
she was throwing away their toys and that she could do this
because she bought the toys. She also testified that she threw the
playstation away because the kids were always fighting over it.
The Court concludes that Mother was throwing away the items
under the delusional belief that they were evil. Mother also
informed Decker that she was going to ride a pony to South
Carolina to marry her husband.
*****
20. On April 24, 2014, after the incidents observed by Officer
Decker, Mother was admitted to Clark County Behavioral
Health for 11 days. In Mother’s words she was “overwhelmed”
with life in general. She was released from Clark County
Behavioral Health with instructions to follow up with a local
mental health provider for therapy and prescriptions for
medication. Mother had been prescribed Prozac and two other
drugs but she stopped taking them without a doctor’s approval.
21. Mother then went to Centerstone, a mental health center, for
counseling for PTSD and anxiety. She had attended eight
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appointments as of the time of the last hearing. She has made
some progress towards her goals of not yelling and screaming
and being better able to interact with her children. Marita Berry,
the GAL, who has been actively involved in this case for
approximately 10 months, has observed no significant changes in
Mother’s situation.
22. Mother suffers from Bipolar II disorder, cannabis use
disorder, panic disorder, and posttraumatic stress disorder. She
also suffers from agoraphobia which makes it difficult for her to
leave her house. She is frequently stressed, restless, easily
distracted, sometimes depressed, moody, and fearful. She angers
easily and has frequent arguments with others. As noted by her
therapist on November 5, 2014, she has a history of manic phases
becoming psychotic with very odd behaviors and of non
compliance with medication.
23. On the date Mother was released from Clark County
Behavioral Health, she was visited by DCS caseworker, Dan
Hoffman. Mother told him she could see things other people
couldn’t see. He talked to the children alone and S.S. told him
she was scared to be there and thought Mother needed help.
24. In the 2013-2014 school year, when the children were living
[w]ith Mother, S.S. missed 22 and J.N. missed 18 days of school.
The absences were due to Mother not getting them up in time to
catch the school bus. During the 2013-2014 school year S.S. was
very emotional; had a hard time making and keeping friends; got
into arguments with other students easily; and despite being a
diligent student, her homework completion was sporadic.
During the 2014-2015 school year, when she was residing with
the Scroghams, S.S. only missed 2 to 3 days of school. Her
grades were better; she was more stable emotionally; and she was
making and keeping friends much easier. She was involved in
activities and her maturity level increased a lot.
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25. S.S. is adamant that she wants to continue living with the
Scroghams. She feels unsafe when living with Mother and does
not like the screaming and cursing that goes on there. She has
threatened to run away if she is returned to Mother’s care. She is
also afraid of Mother’s behavior concerning Indian rituals. As of
January 26, 2015, Mother had started to do the “Indian thing”
again. Mother maintains that S.S. shouldn’t be afraid when
Mother talks about her Indian stuff. During S.S.’s visits with
Mother, J.N. gets into S.S.’s face and yells motherf_cker. S.S.
asks Mother to make him stop. Mother laughs and tells J.N. to
stop but he doesn’t. S.S. can’t sleep well at Mother’s home and
she has bad dreams. Mother has told S.S. not to tell anyone
what happens when she is there for a visit. S.S. is emotional,
upset, and cries sometimes after her visits with Mother.
26. Mother has inappropriately discussed the instant case with
S.S. Mother sat her in a chair and made her read the guardian ad
litem’s report while Mother thumped her chest and swore.
Mother made S.S. agree that she wanted to come back and live
with her before she could get up out of the chair. S.S. started
agreeing with her so she would stop yelling at her.
27. Mother is consumed with hate for the Scroghams. She has
repeatedly made negative comments about them to and in the
presence of S.S. Mother constantly screams about the
Scroghams and calls them terrible names. S.S. asked Mother to
stop calling the Scroghams names but Mother replied, “It’s
impossible to not talk about what they are doing”. Mother has
also been angry, belligerent, and threatening to the Scroghams
during many of the visitation exchanges, all of which occurred in
front of S.S.
28. Mother exhibits poor anger control and has a history of
screaming and cursing at the children. Despite therapy to
address the same, her behavior has only been somewhat better.
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29. S.S. has a strong bond with the Scroghams. Despite this
bond, it is Mother’s intention to move to Kentucky and to not
allow the Scroghams to see S.S. in the event that she regains
custody.
30. Mother has taken several other inappropriate and
irresponsible actions such as the following:
(a) Mother has allowed homeless persons to reside in the
home with the children;
(b) Mother has had S.S. use her own money to buy
cigarettes from a neighbor;
(c) During a home visit, Mother took the children to Wal
Mart at 1:00 a.m. to get cigarettes. She accepted a ride
home with a stranger. The children were afraid because
Mother did not know the man;
(d) At the start of this action Mother smoked marijuana
on a daily basis. While she may have ceased use since, she
still maintains that marijuana is not an illegal drug but is
rather a medicinal substance; and
(e) Mother smokes in the home when S.S. is present
despite the fact that the smoke makes it difficult for S.S. to
breathe.
31. J.N. was nine years old when the temporary guardianship
was granted. Mother had never taken J.N. to a dentist. J.N. had
extensive dental work done while living with the Scroghams.
32. J.N. expressed his desire that he live with his mother citing
as a reason that the Scroghams had too many rules. He was
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placed back in Mother’s care in mid-November of 2014. As of
December 12, 2014, Mother was having difficulty parenting J.N.
33. Kenneth and Teresa Scrogham have been married for twenty
nine years and have lived in the same home during their entire
marriage. Teresa works second shift as a human resource
specialist. She has been consistently employed for more than two
decades. Kenneth is disabled and serves as a stay at home mom
for his four grandchildren. Neither of the Scroghams have a
criminal history, mental health issues, or substance abuse issues.
34. The Scroghams have been actively involved in S.S.’s life
since her birth. They have regularly celebrated holidays and
birthdays with S.S. and have taken her to church. On several
occasions, S.S. has stayed with them for several weeks due to
Mother having no food or no electricity. On one occasion, S.S.
lived with them approximately six months due to Mother having
no electricity. When S.S. was living with Mother, Mother would
frequently call Teresa for assistance with disciplining the
children. Teresa would discipline the children over the
telephone. [Mother] commented that “these kids are driving me
crazy”.
35. S.S. is thriving while living with the Scroghams. She has
structure and boundaries in the home. She has chores to do and
enjoys being responsible. Her school attendance has improved
dramatically and she is making excellent grades. She is more
stable emotionally and is making and keeping friends much
easier than she did while residing with Mother. She feels safe
living with the Scroghams and she is adamant that she wants to
continue to live with them.
DISCUSSION AND CONCLUSIONS OF LAW
*****
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38. Before placing a child in the custody of a person other than
the natural parent, a trial court must be satisfied by clear and
convincing evidence that the best interests of the child require
such a placement. Id[.]
39. The trial court must be convinced that placement with a
person other than the natural parent represents a substantial and
significant advantage to the child. The presumption will not be
overcome merely because a third party could provide the better
things in life for the child. Id[.]
*****
41. In the present case, the strong and important presumption
that S.S.’s interests are best served with placement with Mother
has been clearly and convincingly overcome by the facts set forth
above and S.S.’s best interests are substantially and significantly
served by placement with the Scroghams.
42. Such facts are more fully discussed as follows:
(a) Mother lacks the ability to appropriately discipline S.S.
In the past, she has had to turn to Teresa Scrogham for
assistance in disciplining the children. Presently, her
method of discipline is to yell and curse at the children.
Little improvement has occurred despite the fact Mother
has been in therapy. This is hardly surprising since
Mother has a history of angering easily and having
frequent arguments with others. It is not in S.S.’s best
interests to be exposed to Mother’s yelling and cursing.
(b) Mother has placed S.S. in the middle of this
controversy and has inappropriately attempted to influence
S.S. Mother forced S.S. to read the guardian ad litem’s
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report. While S.S. was reading the report, Mother
screamed and cried that the report was a lie; accused S.S.
of lying to the GAL; and stated that she thought S.S. hated
her. She sat S.S. in a chair and made her agree that she
wanted to come back and live with her before she could
get up out of the chair. The above actions evidence
extremely poor judgment on Mother’s part. Mother either
does not understand the harmful effects of her behavior on
S.S. or, if she does understand, does not care.
(c) Mother has inappropriately disparaged the Scroghams
in the presence of S.S. S.S. is very attached to the
Scroghams and does not want or need to hear Mother’s
negative comments. She has asked Mother to stop making
such remarks but Mother persists and finds it impossible to
not talk about what the Scroghams are doing. Mother has
also been angry, belligerent, and threatening to the
Scroghams during many of the visitation exchanges, all of
which occurred in the presence of S.S. Here again,
Mother has engaged in inappropriate behavior which is
harmful to S.S. Lastly, it is Mother’s intention that S.S.
will never see the Scroghams again if S.S. is placed in her
custody. The Scroghams have played an important role in
S.S.’s life and S.S. has a strong bond with the Scroghams.
It would not be in S.S.’s best interest to sever such bond.
(d) Mother may very well be of Indian heritage. She has,
however, demonstrated delusional thoughts in connection
therewith. Despite her statements to the contrary, Mother
does not have an Indian husband waiting for her in South
Carolina. Mother has also attributed evil properties to the
children’s belongings and took steps to throw the
belongings away to rid her home of evil. The children
were frightened by Mother’s behavior. The issue here is
not whether Mother’s Indian heritage and her actions in
connection therewith are legitimate exercises of religion
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but rather what effect the same have on S.S. S.S. and J.N.
were obviously very frightened by Mother’s excessive
washing of their feet. Mother maintains that she was
doing so in order to comfort the children but Mother
lacked the insight to see that her actions were actually
upsetting the children rather than calming them. Despite
the fact that S.S. is afraid of Mother’s Indian rituals,
Mother started the “Indian” stuff again in early 2015. She
sees no reason that S.S. would be afraid of her talking
about her Indian stuff.
*****
44. The presumption that it is in the best interests of S.S. to be in
the custody of Mother is further overcome by the fact that S.S. is
afraid of going back to live with Mother. She does not like the
screaming and cursing that goes on in Mother’s home and she is
afraid of Mother’s Indian rituals. She cannot sleep well at
Mother’s home and she has bad dreams. S.S. is emotional,
upset, and often cries after her visits with Mother.
45. The Scroghams have established, by clear and convincing
evidence, that S.S.’s best interests are substantially and
significantly served by placement with the Scroghams. The
Scroghams have been actively involved in S.S.’s life since her
birth. S.S. has a strong bond with the Scroghams and is thriving
in their care. She has structure and boundaries in the home. She
has chores to do and enjoys being responsible. Her school
attendance has improved dramatically. Her grades have also
improved. She is more stable emotionally and she is making and
keeping friends much easier.
Appellant’s Appendix at 13-28.
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[23] On November 20, 2015, Mother filed a motion to correct errors, which the
court denied.
Discussion
[24] The issue is whether the trial court abused its discretion in granting the petition
for guardianship. “All findings and orders of the trial court in guardianship
proceedings are within the trial court’s discretion.” In re Guardianship of J.K.,
862 N.E.2d 686, 690 (Ind. Ct. App. 2007) (citing Ind. Code § 29-3-2-4). Thus,
we will review those findings under an abuse of discretion standard. Id.; see also
In re Guardianship of B.H., 770 N.E.2d 283, 288 (Ind. 2002) (“Child custody
determinations fall squarely within the discretion of the trial court and will not
be disturbed except for an abuse of discretion.”), reh’g denied. In determining
whether the trial court abused its discretion, we look to the trial court’s findings
of fact and conclusions thereon. We may not set aside the findings or judgment
unless they are clearly erroneous. Menard, Inc. v. Dage-MTI, Inc., 726 N.E.2d
1206, 1210 (Ind. 2000), reh’g denied. In our review, we first consider whether
the evidence supports the factual findings. Id. Second, we consider whether the
findings support the judgment. Id. “Findings are clearly erroneous only when
the record contains no facts to support them either directly or by inference.”
Quillen v. Quillen, 671 N.E.2d 98, 102 (Ind. 1996). A judgment is clearly
erroneous if it relies on an incorrect legal standard. Menard, 726 N.E.2d at
1210. We give due regard to the trial court’s ability to assess the credibility of
witnesses. Id. While we defer substantially to findings of fact, we do not do so
to conclusions of law. Id. We do not reweigh the evidence; rather we consider
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the evidence most favorable to the judgment with all reasonable inferences
drawn in favor of the judgment. Yoon v. Yoon, 711 N.E.2d 1265, 1268 (Ind.
1999); see also B.H., 770 N.E.2d at 288.
[25] Ind. Code § 29-3-5-1 provides that “[a]ny person may file a petition for the
appointment of a person to serve as guardian for [a] . . . minor under this
chapter or to have a protective order issued under IC 29-3-4.” Ind. Code § 29-3-
5-3 provides:
(a) Except under subsection (c), if it is alleged and the court finds
that:
(1) the individual for whom the guardian is sought is . . . a
minor; and
(2) the appointment of a guardian is necessary as a means
of providing care and supervision of the physical person or
property of the . . . minor;
the court shall appoint a guardian under this chapter.
*****
(c) If the court finds that it is not in the best interests of the . . .
minor to appoint a guardian, the court may:
(1) treat the petition as one for a protective order and
proceed accordingly;
(2) enter any other appropriate order; or
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(3) dismiss the proceedings.
[26] “Indiana courts have long held that ‘[e]ven when a parent initiates an action to
reobtain custody of a child that has been in the custody of another, the burden
of proof does not shift to the parent . . . [r]ather, the burden of proof is always
on the third party.’” In re K.I., 903 N.E.2d 453, 460 (Ind. 2009) (quoting J.K.,
862 N.E.2d at 692). We have previously recognized that a reason for placing
the burden on the third party is to encourage parents who are experiencing
difficulties raising children to take advantage of an available safety net such as a
grandparent who is willing to accept temporary custody of a child. J.K., 862
N.E.2d at 692 n.2 (citing In re Guardianship of L.L., 745 N.E.2d 222, 233 (Ind.
Ct. App. 2001), trans. denied).
[27] The Indiana Supreme Court has previously held:
[B]efore placing a child in the custody of a person other than the
natural parent, a trial court must be satisfied by clear and
convincing evidence that the best interests of the child require
such a placement. The trial court must be convinced that
placement with a person other than the natural parent represents
a substantial and significant advantage to the child. The
presumption will not be overcome merely because “a third party
could provide the better things in life for the child.” In a
proceeding to determine whether to place a child with a person
other than the natural parent, evidence establishing the natural
parent’s unfitness or acquiescence, or demonstrating that a strong
emotional bond has formed between the child and the third
person, would of course be important, but the trial court is not
limited to these criteria. The issue is not merely the “fault” of the
natural parent. Rather, it is whether the important and strong
presumption that a child’s interests are best served by placement
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with the natural parent is clearly and convincingly overcome by
evidence proving that the child’s best interests are substantially
and significantly served by placement with another person.
K.I., 903 N.E.2d at 458 (quoting B.H., 770 N.E.2d at 287 (citations omitted)).
[28] Mother argues that: (A) her due process rights were violated; and (B) there was
insufficient evidence to grant the petition and the court failed to find that the
guardianship was necessary.
A. Due Process
[29] Mother argues that the United States Supreme Court’s decision in Troxel v.
Granville, 530 U.S. 57, 120 S. Ct. 2054 (2000), and the Fourteenth Amendment
are incompatible with the Indiana line of cases allowing the presumption that a
parent is acting in the best interest of the child to be overcome solely based on
the child’s best interests. She also argues that Indiana’s reliance on the
significant and substantial best interests of the child in lieu of a showing of
unfitness, abandonment, or long acquiescence violates a parent’s Due Process
rights under the Fourteenth Amendment to the United States Constitution.
The Scroghams argue that Indiana’s approach to the standard necessary to
implement a guardianship is above and beyond that necessary to satisfy due
process.
[30] In Troxel, Tommie Granville, the mother of two children, opposed a petition for
visitation filed by the paternal grandparents of the children. 530 U.S. at 60, 120
S. Ct. at 2057. The Court addressed a Washington statute that provided: “Any
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person may petition the court for visitation rights at any time including, but not
limited to, custody proceedings. The court may order visitation rights for any
person when visitation may serve the best interest of the child whether or not
there has been any change of circumstances.”6 Id. at 61, 120 S. Ct. at 2057-
2058. The Court was asked to decide whether the statute as applied to a mother
and her family violated the Federal Constitution. Id. at 65, 120 S. Ct. at 2059.
[31] The plurality noted that the Fourteenth Amendment provides that no State
shall deprive any person of life, liberty, or property, without due process of law,
that the Clause guarantees more than fair process, and that the Clause also
includes a substantive component that provides heightened protection against
government interference with certain fundamental rights and liberty interests.
Id. at 65, 120 S. Ct. at 2059-2060.
[32] The plurality held that the Washington nonparental visitation statute was
“breathtakingly broad,” that the statute’s language “effectively permits any
third party seeking visitation to subject any decision by a parent concerning
visitation of the parent’s children to state-court review,” and that “[o]nce the
visitation petition has been filed in court and the matter is placed before a judge,
a parent’s decision that visitation would not be in the child’s best interest is
accorded no deference.” Id. at 67, 120 S. Ct. at 2061. The plurality concluded
that the Washington Superior Court “failed to accord the determination of
6
Justice O’Connor announced the judgment of the Court and delivered the opinion, in which Chief Justice
Rehnquist, Justice Ginsburg, and Justice Breyer joined. 530 U.S. at 60, 120 S. Ct. at 2057.
Court of Appeals of Indiana | Memorandum Decision 39A01-1512-GU-2289 | October 14, 2016 Page 24 of 31
Granville, a fit custodial parent, any material weight” and that the statute, as
applied, was unconstitutional. Id. at 72, 120 S. Ct. at 2063.
[33] Here, we cannot say that the Indiana statute is “breathtakingly broad.” The
“the best interest standard is applicable in guardianship cases involving custody
of a minor.” E.N. ex rel. Nesbitt v. Rising Sun-Ohio Cnty. Cmty. Sch. Corp., 720
N.E.2d 447, 451 (Ind. Ct. App. 1999), reh’g denied, trans. denied; see also Ind.
Code § 29-3-5-3(c) (“If the court finds that it is not in the best interests of the . . .
minor to appoint a guardian, the court may: (1) treat the petition as one for a
protective order and proceed accordingly; (2) enter any other appropriate order;
or (3) dismiss the proceedings.”). Further, Ind. Code § 29-3-5-3 provides that a
trial court may appoint a guardian to a minor if “the appointment of a guardian
is necessary as a means of providing care and supervision of the physical person
or property of the . . . minor.” This court has previously observed that the term
“necessary” is not defined by the guardianship statute, and that two definitions
of the word are “1. Absolutely essential . . . . 2. Needed to achieve a certain
result or effect . . . .” E.N., 720 N.E.2d at 452 (quoting THE AMERICAN
HERITAGE COLLEGE DICTIONARY 911 (3rd ed. 1993)). Further, unlike the trial
court in Troxel, the trial court here observed that Indiana recognizes “the
important and strong presumption that a child’s best interests are ordinarily
served by placement in the custody of the natural parent,” that the burden of
overcoming the presumption is on the third party seeking custody, and that the
presumption will not be overcome merely because a third party could provide
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the better things in life for the child. Appellant’s Appendix at 23. We cannot
say that reversal is warranted based upon Troxel.
[34] To the extent Mother argues that Indiana’s reliance on the significant and
substantial best interests of the child in lieu of a showing of unfitness,
abandonment, or long acquiescence violates a parent’s Due Process rights
under the Fourteenth Amendment to the United States Constitution, we
observe that the Indiana Supreme Court discussed these factors in B.H. In that
case, the Court observed that this Court restated the considerations expressed in
Gilmore v. Kitson, 165 Ind. 402, 74 N.E. 1083 (1905), and had stated that to
rebut the presumption that it will be in the best interests of the child to be placed
in the custody of the natural parent “it must be shown by the attacking party
that there is, (a) unfitness, (b) long acquiescence, or (c) voluntary
relinquishment such that the affections of the child and third party have become
so interwoven that to sever them would seriously mar and endanger the future
happiness of the child.” 770 N.E.2d at 286 (quoting Hendrickson v. Binkley, 161
Ind. App. 388, 393-394, 316 N.E.2d 376, 380 (1974), cert. denied, 423 U.S. 868
(1975)). The Court went on to hold, that “[i]n a proceeding to determine
whether to place a child with a person other than the natural parent, evidence
establishing the natural parent’s unfitness or acquiescence, or demonstrating
that a strong emotional bond has formed between the child and the third
person, would of course be important, but the trial court is not limited to these
criteria.” Id. at 287. In other words, the Court held that “the trial court is not
limited to the three Hendrickson factors.” Id. at 288. It further held that the trial
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court’s “detailed findings provide ample support for the judgment of the trial
court in granting the stepfather’s guardianship petition,” and that “the trial
court was clearly convinced that placement with the stepfather represents a
substantial and significant advantage to the children.” Id.
[35] The trial court in this case noted the “important and strong presumption that a
child’s best interests are ordinarily served by placement in the custody of the
natural parent,” that “[t]he burden of overcoming the presumption is on the
third party seeking custody,” and that “[b]efore placing a child in the custody of
a person other than the natural parent, a trial court must be satisfied by clear
and convincing evidence that the best interests of the child require such a
placement.” Appellant’s Appendix at 23. The court also noted it “must be
convinced that placement with a person other than the natural parent represents
a substantial and significant advantage to the child,” and that the “presumption
will not be overcome merely because a third party could provide the better
things in life for the child.” Id. at 23-24. Under the circumstances, we cannot
say that Mother was deprived of due process.
B. Sufficient Evidence
[36] Mother argues that there was insufficient evidence to grant the petition and
asserts that the circumstances surrounding the temporary guardianship have
been remedied. She points out that J.N. was returned by the Scroghams on
September 25, 2014, and has remained in her care without incident. She
contends that the court’s determination is unconstitutional to the extent it based
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its decision on her Native American and Christian beliefs, and that there is no
law against adults smoking in the presence of their children in Indiana. She
asserts that, contrary to Paragraph 42 of the court’s order, she did know that
J.N. needed to see a dentist and had an appointment to take him to the dentist
in April 2014 and that there is no evidence to support Finding 32 that she was
having difficulty parenting J.N. as of December 12, 2014. Mother also argues
that the trial court erroneously awarded the Scroghams guardianship without a
showing or finding that the guardianship was necessary as required by statute.
[37] The Scroghams assert that the evidence supports the findings and the findings
support the conclusion. The Scroghams also argue that a trial court’s failure to
include a specific finding on necessity will not be grounds for reversal if it is
implicit in the findings and the findings support the conclusion that the
guardianship is necessary.
[38] As for Mother’s argument that the court based its decision on her religious
beliefs, we observe the trial court’s statement that Mother “demonstrated
delusional thoughts in connection” with her heritage and that “[t]he issue here
is not whether Mother’s Indian heritage and her actions in connection therewith
are legitimate exercises of religion but rather what effect the same have on S.S.”
Appellant’s Appendix at 26-27. We cannot say that the trial court based its
decision on Mother’s religious beliefs.
[39] With respect to her smoking, the court found that “Mother smokes in the home
when S.S. is present despite the fact that the smoke makes it difficult for S.S. to
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breathe.” Id. at 21. GAL Berry’s report filed on June 19, 2015, states that S.S.
said Mother “is still smoking inside the apartment and it hurts her to breathe
smoke.” Id. at 43. Further, GAL Berry testified that S.S. “would get a
headache from the smoke in the house . . . .” Transcript at 322. We cannot say
that this finding is clearly erroneous.
[40] As for the court’s statement that J.N. did not go to a dentist until the Scroghams
took him during their temporary guardianship and that Mother knew or should
have known that he was in need of dental work, we observe that Teresa testified
that she noticed J.N. had atrociously bad breath, that she looked in J.N.’s
mouth and saw a “very rotten tooth,” that she asked him if he had ever been to
a dentist, that J.N. said “No,” and that J.N.’s teeth were “in such bad shape
because of having never been to a dentist in his life . . . .” Id. at 143, 145. GAL
Berry testified that she noticed some discrepancies between what Mother had
told her and Mother’s testimony. When asked about the discrepancies, GAL
Berry stated:
One of them was when I asked her, ‘Have the kids ever been to a
dentist?’ She said, ‘No,’ but she had had an appointment for J.N.
but it was not until the spring and that was like four or five
months after his surgery that he had. That was the first time that
she had uh---had a dentist appointment for him.
Id. at 321. We cannot say that the court’s finding is clearly erroneous.
[41] Mother does not specifically argue that the evidence fails to support a number
of the court’s findings including that she stated that she was “overwhelmed”
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with life in general in April 2014, she stopped taking prescriptions without a
doctor’s approval after being released from Clark County Behavioral Health,
she suffers from Bipolar II disorder, cannabis use disorder, panic disorder,
PTSD, and agoraphobia, that S.S. missed 22 days and J.N. missed eighteen
days of school when they were living with Mother during the 2013-2014 school
year because Mother did not wake them in time to catch the school bus, and
that S.S. was scared to be with her, felt unsafe with her, and did not like the
screaming and cursing that occurs in her house. Additionally, Mother does not
contend the evidence fails to support the finding that her method of discipline is
to yell and curse at the children, that S.S. is emotional, upset, and cries
sometimes after her visits with her, that S.S. missed only two to three days of
school during the 2014-2015 school year when residing with the Scroghams,
and that S.S. is thriving and feels safe with them.7
[42] We note that some of these findings relate to circumstances present at the time
of the hearing. GAL Berry filed a report on June 19, 2015, and indicated she
performed a home visit with S.S. who told her that Mother made her go to a
neighbor’s house and buy cigarettes for her with S.S.’s money, Mother was
“still smoking” inside the apartment, Mother constantly screams about the
Scroghams, the dynamics of Mother’s home continues to be unchanged, and
7
Mother asserts that it is bad public policy to base an award primarily on her mental health issues. We
cannot say that the trial court granted the petition for guardianship based only upon Mother’s mental illness.
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that S.S. is still afraid to go back and live with Mother. Appellant’s Appendix
at 43.
[43] To the extent Mother argues that the trial court erroneously awarded the
Scroghams guardianship without a showing it was necessary as required by
statute, we have previously held that “a trial court’s failure to include a specific
finding on necessity will not be grounds for reversal if it is implicit in the trial
court’s evidentiary findings.” Hinkley v. Chapman, 817 N.E.2d 1288, 1291 (Ind.
Ct. App. 2004) (citing E.N., 720 N.E.2d at 452). As discussed, the trial court
entered a nineteen-page order with detailed findings. We conclude that implicit
in these findings was the finding that the guardianship was necessary. See id.
(“Implicit in these findings is the trial court’s finding that the appointment of
the Chapmans as guardians was necessary, i.e., absolutely essential or needed
to rectify L.B.’s educational deficiencies. Therefore, we do not reverse the trial
court’s determination for the absence of a specific finding.”).8
[44] We affirm the decision of the trial court.
Robb, J., and Mathias, J., concur.
8
Mother argues that this case is similar to In re Guardianship of L.L., in which we reversed and remanded with
instructions to terminate a guardianship. 745 N.E.2d at 233. We observed that “there is absolutely no
indication that [the mother] is presently an unfit parent,” that it was undisputed the mother had been
successful in raising another child during the previous six years, that the custody evaluator’s report spoke of
the mother’s parenting capabilities only in positive terms, and that the evaluator expressly testified that she
believed the mother was capable of taking care of both children. 745 N.E.2d at 231. The circumstances in
L.L. are not present here.
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