T.H. and C.H. v. R.J. and K.J. ( 2014 )

Dec 18 2014, 10:55 am
FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
BRYAN LEE CIYOU DANIEL J. LAYDEN
Indianapolis, Indiana MICHELLE L. FINDLEY
Williams Barrett & Wilkowski, LLP
Greenwood, Indiana
IN THE
COURT OF APPEALS OF INDIANA
T.H. and C.H., )
)
Appellants-Petitioners, )
)
vs. ) No. 41A05-1310-MI-505
)
R.J. and K.J., )
)
Appellees-Respondents. )
APPEAL FROM THE JOHNSON CIRCUIT COURT
The Honorable K. Mark Loyd, Judge
The Honorable Marla Clark, Magistrate
Cause No. 41C01-1109-MI-77
December 18, 2014
OPINION – FOR PUBLICATION
PYLE, Judge
STATEMENT OF THE CASE
This is the second time that C.H. (“Grandmother”) and T.H. (“Step-grandfather”)
(collectively, the “Grandparents”) appear before us. Previously, we affirmed the trial
court’s denial of their Trial Rule 60(B) and Trial Rule 59 motions to set aside the adoption
of their granddaughter, B.J., by her stepfather, K.J. (“Stepfather”). In re Adoption of
B.C.H., 7 N.E.3d 1000 (Ind. Ct. App. 2014), trans. granted.
Now, Grandparents appeal the juvenile court’s order granting sole physical and
legal custody of B.J. to R.J. (“Mother”) and Stepfather (collectively, the “Parents”). The
juvenile court had previously adjudicated Grandparents as de facto custodians of B.J.,
thereby giving them the ability to seek custody. On appeal, Grandparents argue that the
evidence did not support the juvenile court’s findings of fact and its ultimate conclusions.
The Grandparents also claim they were entitled to continued court-ordered visitation with
B.J.
Concluding that the evidence supported the juvenile court’s factual findings, that
the Grandparents failed to rebut the presumption of awarding custody of B.J. to the Parents,
and that there was no error in discontinuing court-ordered visitation with Grandparents, we
affirm the juvenile court’s order.
We affirm.
ISSUES
1. Whether the juvenile court erred by awarding custody of B.J. to the
Parents.
2
2. Whether the juvenile court erred by discontinuing Grandparents’ court-
ordered visitation with B.J.
FACTS
Mother became pregnant with B.J. at age seventeen while still in high school,
working, and residing with her mother and stepfather, the Grandparents. Prior to B.J.’s
birth, Grandparents insisted that Mother move into her own apartment. B.J. was born on
November 29, 2007. Mother spent two days in the hospital and then went to her apartment,
where Grandmother stayed with Mother and B.J. for three days. After five days, Mother
and B.J. stayed with Grandparents at their home.
Mother and B.J. eventually returned to her apartment. When Mother returned to
work as a server at a restaurant, she frequently dropped B.J. off at Grandparents’ home
early in the day and returned later in the evenings to pick her up. Mother’s work schedule
was so unpredictable that B.J. began spending the night at Grandparents’ house so that B.J.
would have some consistency in her schedule. Mother eventually let B.J. remain with
Grandparents to accommodate her work and school schedule and to provide consistency
for B.J.
In February 2008, the State, through paternity proceedings, adjudicated T.M. as
B.J.’s biological father. The court granted T.M. visitation rights, ordered him to pay child
support, and granted sole primary and legal custody of B.J. to Mother. From the time of
her birth, B.J. has had no meaningful relationship with T.M. Later in 2008, Mother met
Stepfather, an Iraq war veteran, and began dating him.
3
By February 2010, Parents moved into an apartment together and began keeping
B.J. at least one night per week. Mother became pregnant about a month later, and Parents
eventually married on July 4, 2010. Around this time, Stepfather mentioned to
Grandparents that he had an opportunity to train as a drill sergeant in Georgia and that
Parents wanted to take B.J. with them. According to Mother, Grandmother told Parents,
“you [. . .] and this new baby can go down to Georgia, but you are not taking my baby.”
(Tr. 694). At the final hearing, Grandmother stated she “didn’t put it like that,” but did say
that she thought it “wouldn’t be right” because “[B.J.] had bonded to [Grandparents]” and
that their home was the “only home she had ever known.” (Tr. 447). Parents did not move,
and B.J. continued to split time between Parents and Grandparents. Later in 2010, Parents
initiated proceedings for Stepfather to adopt B.J. In January 2011, Mother gave birth to a
girl, P.J. For about four weeks after P.J.’s birth, B.J. did not visit with Parents. After
Mother recovered from giving birth, B.J.’s visits with Parents resumed.
Tension between Parents and Grandparents eventually boiled over in September of
2011. At that time, Grandmother witnessed Stepfather and B.J. having a pillow fight.
Grandmother thought that Stepfather was being too rough with B.J. Mother was present at
the time and tried to assure Grandmother that everything was okay. Mother pointed out
that no one was hurt and that B.J. was laughing. Grandmother nonetheless insisted that
Stepfather was playing too rough with the child and claimed that she was injured.
4
Grandmother took B.J. to a chiropractor for an examination after the pillow fight. After an
examination, the chiropractor diagnosed B.J. with whiplash.1
The next day, Stepfather dropped the children off at Grandparents’ home so that
Parents could go to a doctor’s appointment. When the Parents returned, Grandmother told
Parents that Stepfather needed to watch how he played with B.J. because of the
chiropractor’s diagnosis. Parents were skeptical, and Stepfather said that he would
continue to play with B.J. in the same manner. He and Grandmother began to argue, and
Stepfather told Mother to get the kids so that they could leave. However, Grandmother
locked herself in a room with B.J. and refused to come out. The Parents left with P.J., but
B.J. remained with Grandparents.
The day after the argument, on or about September 4, 2011, Parents were supposed
to pick up B.J. from Grandparents’ house. When Mother arrived at the house,
Grandparents were not there. Mother was concerned because Grandparents had changed
the garage door access code and the blinds to their house were down, which Mother found
to be unusual. When Mother called Grandparents, she did not receive a response. Mother
called Stepfather, and he suggested that she give Grandparents more time to respond. After
waiting two hours, Parents called the police. The police located Grandparents at their
property in Owen County and asked that they return to Johnson County with B.J.
Grandparents eventually returned B.J. to Parents, and she began living exclusively with
them. After taking custody of B.J., Parents took her to an emergency room for examination
1
The juvenile court’s order notes that the chiropractor is a “long time [sic] family friend.” (App. 43).
While the record is clear that this chiropractor has treated Grandparents and Mother over a period of twenty
years, the extent of any friendship is unclear.
5
of any injuries from the pillow fight. Doctors at the hospital found no injuries during their
examination.
On September 14, 2011, Grandparents filed a verified motion to establish custody
in the person of de facto custodians regarding B.J. In their motion, Grandparents alleged
that Mother had effectively abandoned B.J., that removing B.J. from their care would
“cause severe mental harm and physical risk” to B.J., and that it was in B.J.’s best interest
to be placed with Grandparents on a temporary and eventually permanent basis. (App. 58).
Grandparents also filed a motion for a bonding assessment. The trial court granted the
motion for a bonding assessment and set the matter for a hearing to determine de facto
custodian status and temporary custody.2
Ehrman & Associates completed the bonding assessment and filed it with the court
on October 28, 2011. Dr. John Ehrman (“Dr. Ehrman”), who completed the assessment,
concluded that B.J. was very well bonded to Grandparents. Dr. Ehrman also included
information in his report essentially questioning the physical and emotional well-being of
B.J. However, during his testimony at the final hearing, Dr. Ehrman acknowledged that
the only source of his information was Grandmother, and that he had never met the Parents
prior to the final hearing.
On November 15, 2011, the juvenile court held the evidentiary hearing to determine
de facto custodian status. On the same day, Grandparents also filed a petition for a custody
evaluation. After hearing evidence and accepting proposed findings of fact and
2
The case was later transferred to Johnson County’s Juvenile Court.
6
conclusions thereon, the juvenile court entered an order adjudicating Grandparents as de
facto custodians. However, the court left B.J. in the custody of Parents and ordered that
Grandparents would have visitation with B.J. pursuant to the Indiana Parenting Time
Guidelines and at all other agreed times. Finally, the court ordered a custody evaluation
and required the parties to participate in mediation prior to a contested hearing determining
permanent custody.
Mediation failed, and both parties filed a bevy of motions regarding this matter.
Parents filed a notice to relocate to Hendricks or Marion County to be closer to B.J.’s
school. Grandparents filed motions objecting to the relocation and to Parents enrolling B.J.
in a school outside of the area of her residence at that time, claiming that it would constitute
a “de facto relocation.” (App. 232). Grandparents also filed motions for contempt against
Parents for not complying with the Indiana Parenting Time Guidelines. The juvenile court
set a hearing regarding the relocation motion, but eventually vacated the hearing because
the custody evaluation was not complete.
On or about October 22, 2012, Dr. Joni Gonso (“Dr. Gonso”) completed the custody
evaluation. Dr. Gonso conducted approximately twenty hours of interviews with Parents,
Grandparents, and Stepfather’s parents, as well as telephone conferences with B.J.’s
principal, teacher, and pediatrician. Dr. Gonso also performed separate observations of
B.J. with Parents, P.J., and B.J.’s stepsister,3 and then with Grandparents. She also
3
Stepfather has a daughter from a previous relationship.
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reviewed materials provided by Parents and Grandparents. Finally, Dr. Gonso
administered some psychological tests to Parents and Grandparents.
Dr. Gonso prepared a forty-one page report detailing her findings and
recommendations. The summary of her interviews and observations were as follows:
In summary, [Grandparents], especially [Grandmother] as the primary
attachment figure, provided [B.J.] security the first two years [of her life].
This allowed [Mother] to finish school, work, live independently[,] and
mature. That said, [Mother] was regularly involved in [B.J.’s] life. They
developed an attachment relationship, as children can have multiple
attachment relationships. Over time, [B.J.] transitioned to spending more
time with [Parents]. More importantly, the quality of that attachment, which
promoted both a safe haven as well as exploration and the development of
competencies, became as important, if not more so, than that of
[Grandmother’s] attachment relationship with [B.J.].
As the [Parents] pushed for [B.J.] to live with them on a full[-]time basis, the
[Grandparents] likely felt threatened by a sense of loss. Subtle indicators of
B.J.’s increasing reliance, preference, trust and love for [Parents] heightened
their anxiety. It should be noted that the [Grandparents] were at a transition
point in their lives, or what would commonly be called empty nesters.
Couples either hold on to past patterns or re-evaluate their lives and plan for
the future. [Grandmother] had a sense of entitlement vis-à-vis [B.J.]; i.e.,
look at all I’ve done, therefore I deserve [custody]. Additionally, her
boundaries blurred. There is evidence of confusion when at times she
referred to [B.J.] as “my baby.” The [Grandparents] reacted by engaging in
a parenting competition with the [Parents]. In order to promote themselves,
they criticized and denigrated the [Parents]. The [Grandparents’] “evidence”
was based on misperceptions, fears, making mountains out of mole hills,
jumping to conclusions, etc. In her log, [Grandmother] interpreted the pillow
fight as abuse and was convinced [B.J.] sustained whiplash. She questioned
returning [B.J.] to the [Parents]. In an email, [Grandmother’s sister] wrote
that [Grandparents] “felt it wasn’t safe for [B.J.] to go (back to the
[Parents]).” It is not a stretch to hypothesize that the [Grandparents] withheld
[B.J.] from the [Parents] on September 3, 2011 with the intent of filing a
petition against them.
****
During the pendency of the legalities, the [Grandparents], continued to
campaign against the [Parents]. Consciously or unconsciously, [B.J.] was
incorporated into their process. She endured questioning, insinuations that
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the [Parents] were bad parents, pressure to choose the Grandparents over
[P]arents; hygiene rituals pertaining to her hair, vagina, fingernails and
toenails so [Grandmother] could prove her superior parenting; emotional
manipulations by the [Grandparents] at the time of transitions/exchanges;
examinations by three professionals (chiropractor, ER doctor and
pediatrician) because of the whiplash/abuse allegations; etc. Whatever
concerns the [Grandparents] had about the [Parents’] parenting, stability, or
psychological adjustment, [Grandparents’] behavior has been much more
destructive and bordered on emotional abuse of [B.J.]. Their focus has been
on their own fears, needs[,] and self-serving interests rather than the best
interests of [B.J.]. Asked about the emotional impact of [B.J.] being removed
from the primary care of the [Parents] after a year and [being] placed full
time with [Grandparents], [Grandparents] responded, “Well, they took her
away from us.” They had no response to the question of how their petition
to set aside the adoption would affect [B.J.]; i.e., how could it be explained
to [B.J.] that her daddy was no longer her daddy?
(Parents’ Ex. B at 42). Dr. Gonso recommended that the Parents receive sole legal and
physical custody of B.J. Specifically, her report stated the following:
There are no concerns about [Parents’] stability, parenting or emotional
adjustment. They, especially [Mother], are attuned to their daughter’s
physical, emotional, and social needs. They make decisions prioritizing her
best interests. [B.J.] is comfortable and preferenced [sic] living with her
parents. She has bonded to her sisters, P.J. and [stepsister]. She has thrived
and developed, especially in the areas of independence, self-help skills and
socialization under her parents’ primary care.
[B.J.] loves her Grandparents and they remain important attachment figures
in her life. However, their relationship with her is compromised currently by
their fear, anger, and selfishness. It is a burden on [B.J.] to have to meet their
emotional agenda. It is not recommended that they be awarded formal
visitation with [B.J.]. Instead, the [Parents] can be trusted to determine how
B.J.’s relationship with the [Grandparents] should proceed. The best interest
of [B.J.] and the family system as a whole would be for the [Grandparents]
to accept their role as Grandparents and be supportive of the [Parents]. This
is the appropriate path to “become a family again.”
(Parents’ Ex. B at 43). The juvenile court held a status hearing on October 22, 2012 and
set the matter for a final hearing on December 10 and 11, 2012. In addition to presenting
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evidence about Mother’s alleged abandonment, Grandparents also raised concerns about
Stepfather’s mental health.
Stepfather enlisted in the United States Army after graduating from high school in
2004 and was deployed to Iraq in 2007. He was an infantryman and was involved in
numerous firefights, including being hit by two improvised explosive devices in one day.
As previously mentioned, Stepfather met Mother during this time and developed a
relationship. He pursued a discharge from the Army when he returned to Indiana in 2008.
Stepfather had a hard time adjusting to an unstructured civilian life and experienced
nightmares, anxiety, hyper vigilance, insomnia, and recurring traumatic flashbacks. He
turned to heavy alcohol consumption to cope. His use of alcohol led to an incident in
February 2010 between himself and another man at his apartment.
People were gathered at Parents’ apartment drinking. Stepfather believed that
another man was making advances at Mother. Stepfather was intoxicated, became upset,
and went to his bedroom to retrieve an AK-47 rifle. He returned to the room where the
man was and pointed the rifle at him, though the gun was unloaded. Stepfather’s friends
tackled him and wrestled the rifle away. Realizing that he needed professional help,
Stepfather told his friends that he wanted to go to the hospital. They took him to Veteran’s
Hospital in Indianapolis that evening.
Stepfather was diagnosed with post-traumatic stress disorder (“PTSD”). He did not
seek psychotherapy for his PTSD. Instead, Stepfather limited his alcohol consumption and
leaned on Mother and his friends for support when he experienced PTSD symptoms.
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Stepfather also began working as a union ironworker—thanks in part to Step-
Grandfather—and credited his job as further helping his adjustment.
As a part of the proceedings, Dr. Bartholomew Ferraro (“Dr. Ferraro”) performed a
psychological evaluation of Stepfather. Dr. Ferraro met with him for two and one half
hours and administered a full battery of psychological tests. Dr. Ferraro issued a report on
January 17, 2013 concluding the following:
[W]hile symptoms continued to be present in the initial months following his
discharge [from the hospital], six months later, (September, 2010) most
symptoms were notably in remission if not absent from his experience. In
the years that followed [the cause of his PTSD], [Stepfather] married,
conceived a daughter, and adopted a daughter. He significantly reduced the
quality and quantity of his alcohol consumption, invested in a career, and
engaged with greater purpose both in this pursuit as well as in meaningful
relationships with others. These efforts clearly helped him regain behavioral
control and emotional stability. It is noted that at the [present] time
(1/17/2013), [Stepfather’s] report of his current experience fails to identify
the presence of even a single criterion symptom needed to render the
diagnosis of PTSD.
(Parents’ Ex. F at 12).
On September 19, 2013, the juvenile court issued an order containing over one
hundred findings of fact and concluded that Grandparents did not rebut the presumption
that it is in the child’s best interest to be placed in the custody of the natural parent. The
juvenile court granted sole legal and physical custody of B.J. to Parents and ended the
court-ordered visitation granted to Grandparents. All remaining petitions were decided in
favor of Parents. Grandparents now appeal the juvenile court’s custody order and its order
regarding visitation. We will provide additional facts as necessary.
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DECISION
Our Supreme Court set forth the standard of review regarding custody disputes
between a natural parent and a third party:
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. 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. . . . [E]vidence 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. This determination falls within
the sound discretion of our trial courts, and their judgments must be afforded
deferential review. A generalized finding that a placement other than with
the natural parent is in a child’s best interest, however, will not be adequate
to support such determination, and detailed and specific findings are
required.
In re Guardianship of B.H., 770 N.E.2d 283, 287 (Ind. 2002) (internal citations and some
quotation marks omitted).
A party challenging a trial court’s findings in this regard will not succeed unless the
order is clearly erroneous “and due regard shall be given to the opportunity of the trial court
to judge the credibility of the witnesses.” Ind. Trial Rule 52. A judgment is clearly
erroneous when it relies on an incorrect legal standard. Shell Oil Co. v. Meyer, 705 N.E.2d
962, 972 (Ind. 1998). “We disturb the judgment only where there is no evidence supporting
the findings or the findings fail to support the judgment.” Yoon v. Yoon, 711 N.E.2d 1265,
12
1268 (Ind. 1999). We do not reweigh the evidence; rather we consider the evidence most
favorable to the judgment with all reasonable inferences drawn in favor of the judgment.
Id.
In this appeal, Grandparents claim that the juvenile court erred by placing B.J. in
Parents’ custody and ending their court-ordered parenting time with B.J. Specifically,
Grandparents argue that: (1) many of the juvenile court’s factual findings are not supported
by the evidence; (2) the juvenile court applied the improper legal standard in determining
B.J.’s placement; and (3) we should expand the de facto custodian statute to give third
parties the right to seek visitation with a child that has been in their care. We address each
of their arguments in turn.
1. Factual Findings
While Grandparents contend that the evidence fails to support many of the juvenile
court’s factual findings, Grandparents focus their argument on findings regarding
Stepfather’s mental health and Parents’ supposed lack of concern for B.J.’s medical needs.
a) Stepfather’s Mental Health
The juvenile court found that “[Stepfather] does not pose a risk to himself or persons
around him and appears to be steady and stable.” (App. 47). Grandparents challenge this
finding by attempting to discount the evaluation performed by Dr. Ferraro. For example,
Grandparents state, “[Dr. Ferraro] could not conclusively say that symptoms [of PTSD]
13
would never reoccur in the future.” (Grandparents’ Br. 33). We view this as an invitation
to have this Court reweigh the evidence, which we will not do.4
Despite this, it is important to note that Dr. Ferrano testified that, given Stepfather’s
investment and identity in the roles of a father and a husband and his enjoyment of his
career, “it would take more than the usual stress to impact Stepfather in the way that is
being suggested,” and “testing suggests that he is quite resilient in his capacity to cope.”
(Tr. 769). Thus, evidence in the record supports the juvenile court’s finding regarding
Stepfather’s mental health.
b) Lack of Medical Attention
Regarding B.J’s health, the juvenile court found that, “The [Grandparents],
particularly [Grandmother], are unduly obsessive about [B.J.’s] health and hygiene and
believe the [Parents] are neglectful or deficient in their attention to these issues. (App. 47).
Grandparents claim that the juvenile court “failed to give due deference to the fact that the
child has had a reoccurring [sic] infection . . . while primarily in the care of [Parents], and
for which a doctor diagnosed the medical problem.” (Grandparents’ Br. 33). Grandparents
go on to claim that the juvenile court, “[undermined] and [dismissed] legitimate claims of
potential, and actual, harm B.J. is suffering in the care of [Parents].” (Grandparents’ Br.
4
Grandparents, while discussing Stepfather’s mental health, make reference to the fact that Stepfather keeps
firearms in a dangerous manner and claims that the juvenile court ignored this evidence. The only evidence
of this was Grandmother’s testimony. Stepfather denied keeping firearms in a dangerous manner.
Furthermore, the record shows that Stepfather’s firearms are kept in a gun safe away from the children. We
see this as another invitation from Grandparents to reweigh the evidence. Again, we decline their invitation
to do so.
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33). This is yet another invitation from Grandparents to reweigh the evidence, and again,
we decline their invitation.
The record supports the juvenile court’s finding. For example, regarding B.J.’s
pillow fight with Stepfather, Grandmother insisted that B.J. suffered from whiplash. Her
insistence continued even though B.J. laughed and did not cry during the incident, and
never complained of pain at time of the incident nor at her appointment with the
chiropractor. While Grandmother’s chiropractor testified that B.J. suffered from whiplash,
Parents presented evidence that an emergency room physician found no injuries.
Accordingly, the juvenile court did not err in its finding regarding B.J.’s health.
2. Improper Legal Standard
The juvenile court concluded the following: “[h]aving failed to overcome by clear
and convincing evidence the presumption that [B.J.’s] best interest is served by placement
with her natural parent, it is hereby ordered that Respondents, [Parents], shall have and
maintain sole legal and physical custody of [B.J.]. (App. 54). Grandparents argue that the
juvenile court applied an incorrect legal standard to reach its conclusion that Parents should
have custody of B.J. Specifically, Grandparents claim that the juvenile court “did not
properly analyze the facts and circumstances in light of the caselaw [sic] and statute,
namely the [factors stated in Hendrickson v. Binkley, 316 N.E.2d 376 (Ind. Ct. App. 1974)]
and Indiana Code § 31-14-13-2.5.” (Grandparents’ Br. 31). We disagree.
Hendrickson established the following test to resolve custody disputes between
natural parents and third parties:
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First, it is presumed it will be in the best interest of the child to be placed in
the custody of the natural parent. Secondly to rebut this presumption, 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.
Hendrickson, 316 N.E.2d at 380. However, as previously mentioned, our Supreme
Court held in B.H. that the Hendrickson test is helpful, but a court is not limited to this
evidence and further explained that what is determinative is whether the third party has
rebutted the presumption in favor of the natural parent by clear and convincing evidence
B.H. 770 N.E.2d at 287.5 Therefore, the juvenile court could not err by failing to analyze
the facts before it under the Hendrickson test, because it was not required to use the test at
all. See, e.g., Parks v. Grube, 934 N.E.2d 111, 115 (Ind. Ct. App. 2010) (third party was
not required to prove Hendrickson factors to carry its burden).
Further, Grandparents appear to argue that the de facto custodian statute plays a role
in determining whether a third party has overcome the presumption in favor of the natural
parent in custody disputes. Indiana Code § 31-14-13-2.5 lists factors a court should
consider in determining custody when a de facto custodian is involved. However, these
circumstances are considered in conjunction with a general determination of a child’s best
interest. When a third party seeks custody of a child, a general best interest analysis does
not begin until the third party has rebutted the presumption in favor of the natural parent.
Francies v. Francies, 759 N.E.2d 1106, 1114 (Ind. Ct. App. 2001), trans. denied. The
juvenile court correctly omitted the factors listed in Indiana Code § 31-14-13-2.5 from its
5
The Court reaffirmed this position in In re Paternity of K.I., 903 N.E.2d 453, 459 (Ind. 2009), where it
observed that trial courts may rely on Hendrickson for guidance.
16
order because it deemed that Grandparents had failed to overcome the presumption in favor
of Mother as the natural parent. The juvenile court used the correct legal standard, and
arrived at a conclusion that is supported by the evidence.
Grandparents argue that their self-serving allegations of acquiescence and the
existence of a strong emotional bond are sufficient evidence to reverse the juvenile court’s
judgment. However, Grandparents do not point to any other evidence demonstrating that
they carried their burden of showing that placement with them, rather than Parents,
represented a substantial and significant advantage to B.J. Indeed, the essence of their
argument is summed up by the following exchange during the final hearing:
Daniel Layden: Okay, so is it fair to say, sir, that you really just think that
your wife would do a better job than this child’s parents are doing?
[Step-Grandfather]: I believe she may very well be in harm’s way.
Daniel Layden: Harms way? How so?
[Step-Grandfather]: Anger, aggressive nature, firearms. Well not firearms in
general just the inability to take care of them. She is . . .
Daniel Layden: But do you have any evidence, whatsoever, sir, that either of
these two people have abused that child?
[Step-Grandfather]: I do not.
Daniel Layden: So why would you say that?
[Step-Grandfather]: I’m not accusing them of abuse.
Daniel Layden: So really again, sir, isn’t it that you believe you and your
wife would do a better job than this child’s parents are doing? Raising this
child?
[Step-Grandfather]: I do believe. Yes.
17
(Tr.637-38). As such, the juvenile court did not err in concluding that Grandparents failed
to overcome the presumption in favor of granting custody of B.J. to Parents. See, e.g., K.I.,
903 N.E.2d at 459.
3. Visitation Rights
Finally, Grandparents essentially ask that we expand the de facto custodian statute
to give third parties visitation rights with children after being removed from their care. We
decline to do so because our Supreme Court has clearly spoken on this issue in K.I.
In K.I., this Court remanded a custody order for the trial court to determine whether
a grandparent would have visitation under the Grandparent Visitation Act or the de facto
custodian statute. On transfer, the Supreme Court found that the de facto custodian statute
provided no relief for a third party seeking visitation, specifically observing the following:
[De facto custodian status] bears only on the question of custody. The
apparent intent of the de facto custodian statute is to clarify that a third party
may have standing in certain custody proceedings, and that it may be in a
child’s best interests to be placed in that party’s custody. The statute is silent
on the question of visitation.
Id. at 461-62. (internal citations omitted). We are bound by our Supreme Court’s
decisions, and its precedent is binding on us until it is changed by our Supreme Court or
legislative enactment. Continental Ins. Co. v. Wheelabrator Technologies, Inc., 960
N.E.2d 157 (Ind. Ct. App. 2011), reh’g. denied, trans. denied. Accordingly, we decline
Grandparents’ request to expand the de facto custodian statute to include visitation rights.
We affirm the decision of the juvenile court granting legal and physical custody of
B.J. to Parents and denying continued court-ordered visitation rights to Grandparents.
Affirmed.
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NAJAM, J., and BAILEY, J., concur.
19