M.L. v. B.M. (mem.dec.) ( 2017 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
Jun 21 2017, 8:46 am
regarded as precedent or cited before any
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
APPELLANT PRO SE
Michelle Lewis
Monticello, Indiana
IN THE
COURT OF APPEALS OF INDIANA
M.L., June 21, 2017
Appellant-Defendant, Court of Appeals Case No.
41A04-1612-GU-2700
v. Appeal from the Johnson County
Superior Court
B.M., et al., The Honorable Kevin Barton,
Appellees-Plaintiffs Judge
Trial Court Cause No.
41D01-1303-GU-29
Altice, Judge.
Case Summary
[1] M.L. (Mother) appeals, pro se, the trial court’s order denying her petition for
termination of a guardianship over her teenage son (Child) held by B.M.
(Grandmother) and M.M. (collectively, Grandparents). Mother presents a
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number of arguments on appeal, but we determine the essence of her argument
to be that the trial court abused its discretion by denying her petition.
[2] We affirm.
Facts & Procedural History
[3] Child was born February 14, 2001, during the marriage of Mother and T.P.
(Father). Mother and Father divorced while living in Colorado when Child
was about eight years old. Father maintained custody of Child, and Mother
exercised parenting time, which was sometimes sporadic. Mother has never
paid support for Child.
[4] Due to a long history of seizures, Mother does not have a driver’s license. Her
medical condition also affects her ability to maintain employment. She moved
a number of times within Colorado following her divorce.
[5] Father remarried in 2011 and had a daughter with his new wife in Colorado.
From 2011 to 2013, Mother’s visits with Child were infrequent. Throughout
his childhood, Child regularly visited and spent summers with Grandparents –
his paternal grandmother and step-grandfather – in Indiana. Father had a
tumultuous relationship at times with each of his wives, and Grandparents
offered refuge and stability for Child.
[6] In February 2013, Father sent Child to stay with Grandparents. Father then
committed suicide on February 19, 2013, in Colorado. Grandparents notified
Mother and bought a plane ticket for her to move back to Indiana in March.
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Mother was not healthy enough or financially secure to take custody of Child,
so she consented to Grandparents’ guardianship. On April 1, 2013, an order
appointing Grandparents as guardians over Child was entered.
[7] Mother and Grandparents had a good relationship, and Grandparents did not
restrict Mother’s access to Child. They even assisted in transportation for
parenting time, as Mother did not live in the same town and could not drive.
Mother was always welcome in Grandparents’ home.
[8] Mother met M.S. in July 2013 and introduced him to Child about a month
later, indicating that she was going to marry M.S. and regain custody of Child.
Thereafter, on August 22, Mother forwarded to Grandmother a bio Mother had
received from M.S. when they met online. Something just did not seem right to
Grandmother, so she performed an internet search using M.S.’s name. She
learned that M.S. had committed a string of bank robberies in 2008. M.S. was
described in an article as a “troubled man with mental-health issues” who had
also “victimized relatives”. Exhibits, Exhibit P-5. Further, while at an inpatient
mental health center awaiting trial on the robbery charges, M.S. left the facility
and robbed another bank to cover a bar bill. Along with the imposition of a
four and one-half year federal prison sentence in August 2009, M.S. was
ordered to undergo psychiatric treatment in prison. M.S.’s mental health issues
apparently included “major depression, chronic bi-polar disorder, chronic
schizoaffective disorder, and alcoholism.” Exhibits, Exhibit P-7.
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[9] After discovering this information, Grandmother became concerned and
notified Mother via email on August 28, 2013. Mother confronted M.S. that
night about his undisclosed criminal past and mental health issues. She then
contacted Grandmother the following day to express that M.S. was a changed
man and deserves a second chance. Grandmother responded in part:
I believe that people can change and that they deserve a chance
to prove they are changed. However, I don’t believe that you
have known [M.S.] long enough to know for sure if he is
changed. And from what you have told me, it doesn’t sound like
he was honest with you about his past until you confronted him
about my e-mail. The bio you shared with me from [M.S.]
certainly does not indicate his criminal past or his mental illness
or his alcoholism. I am willing to give him time to prove he is a
changed man, but I am not willing to take chances with [Child’s]
safety…. It would certainly be in [Child’s] best interest and yours
for you to get to know [M.S.] well enough to know for sure if he
is being honest with you and that he is changed….
[We] are willing to bring [Child] up to visit as long as [M.S.] is
not going to be there; but until we are more comfortable with this
situation, we will be staying in Lowell and bringing him back
home. We believe this is the best right now since you don’t see
anything wrong with this situation.
You have always been welcome in our home, and still are if you
want to come here sometimes to visit….
Exhibits, Exhibit P-3. Mother and M.S. married in October 2013.
[10] The relationship between Mother and Grandmother became strained when
Grandmother restricted visits and requested certain information regarding M.S.
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that Mother and M.S. refused to provide. Grandparents’ home remained open
for visits, but Mother refused to spend the night there “[a]s a matter of
principle” because M.S. was not welcome. Appellant’s Brief at 9. Additionally,
Grandparents drove Child to visit Mother for holidays and special occasions,
but after December 2013, they would not allow overnight stays. In sum,
Mother did not see Child regularly after marrying M.S. Mother’s
communication with Child became primarily through text messages.
[11] On June 1, 2016, more than three years after Grandparents obtained custody of
Child, Mother filed a petition for termination of guardianship. In the petition,
Mother claimed that she was now financially, emotionally, and mentally able to
provide a stable and supportive home for Child.
[12] In a series of text messages in early August 2016, Mother and Child discussed
whether Child wanted to move and live with Mother and M.S. Child indicated
that he was comfortable with his life and wished to stay with Grandparents.
Child was sad because he did not want to hurt Mother or have her blame
Grandmother for his decision.
[13] A brief evidentiary hearing on the petition was held on September 1, 2016, at
which Mother represented herself and Grandparents were represented by
counsel. In addition to Mother and Grandmother testifying, exhibits were
admitted into evidence and the trial court conducted an in-camera interview
with Child – who was then fifteen years old. The court then took the matter
under advisement.
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[14] On October 3, 2016, the trial court issued its order denying Mother’s motion to
terminate the guardianship. The court recognized that Mother’s epilepsy was
being addressed through medication and that she now had a stable residence as
a result of her marriage. Based on the strong emotional bond between Child
and Grandparents and Child’s lack of a close relationship with Mother,
however, the court concluded that Grandparents had established by clear and
convincing evidence that the guardianship should continue. The court
continued:
A relationship between Mother and [Child] needs to be
normalized as a precondition to termination of guardianship.
Regular visitation needs to be established. Mother has made
clear that her husband will be involved in visitation. From the
evidence, the Court does not find that [Grandparents] have
established endangerment of the child’s physical condition or
significant impairment of emotional development under Indiana
Code 31-17-4-1. While [M.S.] does have a prior history of
mental illness and criminal convictions, the evidence is that the
mental illness is controlled by medication and the character
statements offered by Mother into evidence are not adverse to
establishment of visitation.
Appendix at 9-10. Accordingly, the court granted Mother parenting time in
accordance with the Indiana Parenting Time Guidelines.
Discussion & Decision
[15] Mother’s pro-se arguments on appeal are all over the place. She asserts that the
trial court’s findings are clearly erroneous but then does not attack any specific
findings of fact. She also claims that the trial court based its decision on
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“distorted conception of the facts.” Appellant’s Brief at 7. Mother argues that
Grandparents alienated Child from her as a result of the restrictions they
imposed on the exercise of her parenting time. She also asserts, without further
explanation, that the trial court failed to take into account “any of the
undisputed claims of wrong doings of [Grandparents] that have gone
unanswered. i.e. constructive fraud, perjury and contempt.” Id. at 10. Finally,
Mother claims that the trial court was not impartial because it conducted an in-
camera interview of Child and that the court committed fundamental error.
[16] We remind Mother that a pro-se litigant is held to the same standards as a
licensed attorney. See Basic v. Amouri, 58 N.E.3d 980, 983 (Ind. Ct. App. 2016).
Where a litigant fails to present cogent arguments on appeal, we will not
become an advocate for that party or address arguments that are inappropriate
or too poorly developed or expressed to be understood. Id. at 984. Waiver
notwithstanding, we will address whether the trial court abused its discretion by
refusing to terminate the guardianship.
[17] Trial court orders in guardianship proceedings are reviewed for an abuse of
discretion with a preference for granting latitude and deference to our trial
courts in family law matters. In re Guardianship of M.N.S., 23 N.E.3d 759, 765-
66 (Ind. Ct. App. 2014). In determining whether the court abused its discretion,
we review its findings and conclusions, and we may not set aside the findings or
judgment unless they are clearly erroneous. Id. at 766. We will not reweigh the
evidence nor reassess the credibility of witnesses; instead, we will consider the
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evidence most favorable to the judgment with all reasonable inferences drawn
in favor of the judgment. Id.
[18] “In a custody dispute between a natural parent and a third party, there is a
strong presumption in all cases that the natural parent should have custody of
his or her child.” In re Guardianship of B.W., 45 N.E.3d 860, 866 (Ind. Ct. App.
2015). In a termination of guardianship proceeding, once the natural parent
meets his or her minimal burden of persuasion – which was met in this case –
the guardian must prove by clear and convincing evidence that the child’s best
interests are substantially and significantly served by continued placement with
the guardian. See In re Guardianship of M.N.S., 23 N.E.3d at 766. Our Supreme
Court has explained this burden as follows:
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 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.
In re Guardianship of B.H., 770 N.E.2d 283, 287 (Ind. 2002) (citations omitted).
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[19] In the instant case, the trial court determined that Mother was not unfit to care
for Child and that the stability issues that had led to the guardianship no longer
existed. Despite this, the court concluded that it was clearly and convincingly
in Child’s best interests to remain with Grandparents. This conclusion was
based on the strong emotional bond Child had formed with Grandparents and
his lack of a close relationship with Mother. Additionally, the trial court noted
that Child would likely have difficulty transitioning to a public-school setting,
which would occur if Mother obtained custody.
[20] Mother complains that the relationship issues with Child were caused by
Grandparents’ restriction of her parenting time after she married M.S. The
record does not compel – and the trial court did not make – such a finding.
Certainly, Mother bore much of the responsibility for the quality of her
relationship with Child. She and M.S. steadfastly refused to provide
Grandparents with information to alleviate concerns regarding M.S.’s alarming
past. Mother also rejected opportunities to spend time with Child at
Grandparents’ home, where she had always been welcomed. Essentially, for at
least two years, she acquiesced in seeing Child only on special occasions and
otherwise communicating with him through text messages. Mother waited
until June 2016 to file her petition to terminate the guardianship and to
challenge the restrictions imposed on her parenting time. By this time, Child
was fifteen and had formed a much stronger bond with Grandparents than
Mother, who had not had custody of Child since her divorce from Father when
child was an eight-year old.
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[21] The trial court’s determination was, of course, influenced by its in-camera
interview with Child. Despite Mother’s protests below and on appeal, there
was nothing improper about the trial court speaking to the fifteen-year old
about his desires regarding custody. See Ind. Code § 31-17-2-8(3) (in making
custody determinations, trial court shall consider “[t]he wishes of the child,
with more consideration given to the child’s wishes if the child is at least
fourteen (14) years of age”).
[22] Although the trial court denied the petition to terminate the guardianship, it
recognized the need to establish regular parenting time between Mother and
Child. To this end, the court found that the evidence did not establish that
parenting time by Mother would endanger Child’s physical health or
significantly impair his emotional development. See I.C. § 31-17-4-1(a).
Accordingly, the trial court granted Mother parenting time in accordance with
the Indiana Parenting Time Guidelines.
[23] On this record, we cannot conclude that the trial court abused its discretion
when it denied Mother’s petition to terminate the guardianship.
[24] Judgment affirmed.
[25] Kirsch, J. and Mathias, J., concur.
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