In re the Guardianship of A.D., Jesus M. Chacon v. Madelyn Dearmond and Clyde De La Paz, Jr. (mem. dec.) ( 2018 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before any Dec 21 2018, 10:12 am
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
Jesus M. Chacon
Chicago, Illinois
IN THE
COURT OF APPEALS OF INDIANA
In re the Guardianship of A.D., December 21, 2018
Jesus M. Chacon, Court of Appeals Case No.
18A-GU-1604
Appellant-Petitioner,
Appeal from the Lake Superior
v. Court
The Honorable Thomas P.
Madelyn Dearmond and Stefaniak, Judge
Clyde De La Paz, Jr., Trial Court Cause No.
45D06-1709-GU-132
Appellees-Respondents
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-GU-1604 | December 21, 2018 Page 1 of 12
[1] Jesus Chacon brings this pro se appeal of the trial court’s order denying his
petition for a guardianship of his great-grandson, A.D. (Child). Chacon argues
that the evidence does not support the denial of his petition. Finding the
evidence sufficient, we affirm.
Facts 1
[2] Child was born to Madelyn Dearmond (Mother) and Clyde De La Paz, Jr.
(Father), in 2009. Sometime in 2010, Father pleaded guilty to voluntary
manslaughter and was incarcerated at the Pendleton Correctional Facility until
November 2016.
[3] In 2011, Child, Mother, and Child’s sibling (Sibling) began living with Chacon
in Chicago. After two to three weeks, Mother left for a destination not revealed
by the record. She left Child and Sibling in Chacon’s care from 2012 through
2017, though she maintained a relationship with Child during these years. In
August 2013, Mother signed a notarized document consenting to Chacon
taking Child to medical appointments. No formal guardianship was ever
sought or granted.
[4] While Father was incarcerated, Chacon took Child and Sibling to see Father at
the penitentiary every two to three weeks. After Father’s release on November
1
Chacon has not filed an appendix or transcript in this appeal. Therefore, we must rely solely on the trial
court’s order for the recitation of the underlying facts.
Additionally, Chacon requested oral argument (though he did not file a motion to that effect). We hereby
deny the request.
Court of Appeals of Indiana | Memorandum Decision 18A-GU-1604 | December 21, 2018 Page 2 of 12
28, 2016, he and Mother moved into a home owned by Chacon in Whiting. In
June 2017, Father relocated to Gary to live with his parents. At that time, there
was a disagreement between Father, Mother, and Chacon about the custody of
Child and Sibling. Mother and Father took Child with them to Gary and
Chacon took Sibling home with him to Chicago. Chacon filed a petition for
guardianship of Sibling in Chicago; that petition was denied and Sibling was
returned to the care and custody of Mother and Father.
[5] On September 11, 2017, Chacon filed a petition for guardianship of Child. 2
Mother and Father contested the petition. On October 11, 2017, the trial court
granted Chacon temporary guardianship of Child. Since that time, Child has
been living with Chacon in Chicago, and Mother and Father have been
exercising parenting time.
[6] The final guardianship hearing took place on December 20, 2017, and January
31, 2018. Chacon, Mother, and Father testified at the hearing. Chacon based
his guardianship request on several factors:
• Mother’s history of problems with alcohol, including a 2014 arrest for
public intoxication.
• Child’s educational and medical needs. Child has an Individualized
Education Program (IEP) in Chicago and has been diagnosed with
Attention Deficit/Hyperactivity Disorder (ADHD) and is medicated for
that condition.
2
Chacon first filed the guardianship petition in Chicago; that petition was denied for lack of jurisdiction.
Court of Appeals of Indiana | Memorandum Decision 18A-GU-1604 | December 21, 2018 Page 3 of 12
• Father’s criminal history.
On April 30, 2018, the trial court issued an order denying the guardianship
petition. The trial court made the following findings of fact:
24. . . . Mother has had problems with alcohol abuse in the
past but is currently receiving counseling for her
dependency on alcohol. Mother submitted three (3)
toxicology reports to the Court that showed Mother tested
negative for any drugs on all three (3) reports but that
Mother tested positive for alcohol on one (1) of the
toxicology reports.
***
27. Mother testified that in August 2017, she enrolled Minor
Child in [a charter school in Gary] and that he attended
said school until he was returned to Great Grandfather in
October of 2017. Mother testified that Minor Child was
doing well at the charter school; that she did not believe
that Minor Child needed an IEP; that she did not inform
[the school] that Minor Child had had an IEP at his prior
school or that Minor Child was diagnosed with ADHD
and had been on medication for ADHD.
28. Mother further testified that she did not believe that Minor
Child needed counseling or medication and that she did
not believe that Minor Child has ADHD; and, that she
took Minor Child for a physical examination prior to the
beginning of the school year. . . .
29. Mother admitted that during the time that Minor Child
attended the Chicago Public School system, she had no
contact with any of Minor Child[’]s teachers; had not gone
Court of Appeals of Indiana | Memorandum Decision 18A-GU-1604 | December 21, 2018 Page 4 of 12
to any of Minor Child[’]s parent-teacher meetings; had not
made any inquiries regarding Minor Child[’]s IEP; and,
had not discussed Minor Child[’]s progress with any of the
school officials.
30. Mother works part-time at a nursing home.
***
32. Father testified that if given custody of Minor Child, he
would take Minor Child to a doctor for further
examination on his ADHD diagnosis and would follow
the recommendations of said doctor.
33. Father testified that he will be on parole until 2019.
Pursuant to Father[’]s parole, Father has to submit to
random drug testing, pay fees, be employed and not have
any new arrests or charges.
34. Father testified that he has passed all of [the] random drug
tests, that he is employed and has not had any violations of
his parole.
35. Father testified that he was grateful for Great
Grandfather[’]s assistance while Father was incarcerated
but that he was ready and able to care for Minor Child and
no longer needed Great Grandfather[’]s help.
Court of Appeals of Indiana | Memorandum Decision 18A-GU-1604 | December 21, 2018 Page 5 of 12
Appellant’s Br. p. 17-18.3 Based on its findings of fact, the trial court made the
following conclusions of law:
2. Given the facts and circumstances, the Court concludes
that:
a. Mother and Father are willing and able to provide
the proper and necessary care for Minor Child.
b. Mother and Father reside in a home with paternal
grandparents along with [Sibling].
c. Mother and Father are both employed.
d. Mother voluntarily relinquished to Great
Grandfather the custody and care of Minor Child
from 2012 through 2017. . . . However, Mother
continued to have some communication and
contact with Minor Children.
e. In June 2017 through October 2017, Minor Child
lived with Mother and Father, attended school, and
appeared to be doing well.
f. Father did not voluntarily relinquish the custody
and care of Minor Child while he was incarcerated
from 2011 through 2016; and, during Father[’]s
incarceration, Great Grandfather traveled Five
Hundred (500) miles round trip, every two (2) to
3
Chacon did not file the appealed order as its own document and, as noted above, there is no appendix. He
instead appended the appealed order to his brief. To ensure that the order is easily located, we will cite to its
pagination within the Appellant’s Brief.
Court of Appeals of Indiana | Memorandum Decision 18A-GU-1604 | December 21, 2018 Page 6 of 12
three (3) weeks, at least One Hundred and Fifty
(150) times, to take Minor Child and Sibling to see
Father at the penitentiary thus enabling Father to
continue to have a relationship with Minor Child
throughout his incarceration. When Father was
released from prison in 2016, father continued to
have a relationship with Minor Child.
***
h. Although Minor Child was in the care of Great
Grandfather for a majority of his young life, Minor
Child has had continuing contact with Father and to
some extent with Mother.
***
3. The Court finds and concludes . . . that it is in the best
interest of Minor Child to be placed with Mother and
Father for the following reasons:
a. Mother and Father have a stable home with Minor
Child[’]s sibling and paternal grandparents in Gary,
Indiana.
b. Mother is employed part-time at a nursing home.
c. Father is employed and is abiding by all of his
parole conditions . . . .
d. Minor Child had continued contact with Father
throughout Father[’]s incarceration.
Court of Appeals of Indiana | Memorandum Decision 18A-GU-1604 | December 21, 2018 Page 7 of 12
e. Minor Child lived with Mother and Father from
June 2017 through October 2017 and was enrolled
in school.
f. Mother and Father have demonstrated an ability to
more than adequately meet the needs of Minor
Child and to provide sufficient support.
g. While Father was incarcerated, Great Grandfather
maintained a stable lifestyle for Minor Child, which
allowed Minor Child to thrive and properly develop
physically, cognitively, and socially.
Id. at 18-19. The trial court denied the petition, ordered that Child be returned
to his parents’ care and custody immediately, and ordered that the parents
inform Child’s school about the IEP, request an assessment at his school, and
follow the recommendations of the assessment. The trial court also ordered
grandparent visitation with Child one Sunday per month. Finally, the trial
court ordered that the parents ensure that Child takes his prescribed ADHD
medication, take Child and his medical records (to be provided by Chacon) to a
doctor for a complete medical assessment, and comply with the doctor’s
recommendations. Chacon now appeals.
Discussion and Decision
[7] Chacon argues, essentially, that the evidence does not support the trial court’s
order denying his guardianship petition. Generally, all guardianship findings,
orders, and proceedings are committed to the sound discretion of the trial court.
Ind. Code § 29-3-2-4(a). Moreover, there is a strong preference for granting
Court of Appeals of Indiana | Memorandum Decision 18A-GU-1604 | December 21, 2018 Page 8 of 12
latitude and deference to our trial judges in family law matters. In re
Guardianship of I.R., 77 N.E.3d 810, 813 (Ind. Ct. App. 2017). Because Chacon
had the burden of proof at the guardianship hearing, he is appealing from a
negative judgment, meaning that he must show on appeal that the evidence
points unerringly to a conclusion opposite that reached by the trial court. In re
J.C., 735 N.E.2d 848, 849 (Ind. Ct. App. 2000). We will reverse a negative
judgment only if it is contrary to law, and in making our determination, we will
neither reweigh the evidence nor assess witness credibility and will consider
only the evidence and inferences most favorable to the prevailing party. Id.[8] Our Supreme Court has explained that we review child placement disputes
between natural parents and third parties with a strong presumption in favor of
placement with the parents:
Despite the differences among Indiana’s appellate court decisions
confronting child placement disputes between natural parents
and other persons, most of the cases generally recognize the
important and strong presumption that the child’s best interests
are ordinarily served by placement in the custody of the natural
parent. This presumption does provide a measure of protection
for the rights of the natural parent, but, more importantly, it
embodies innumerable social, psychological, cultural, and
biological considerations that significantly benefit the child and
serve the child’s best interests. To resolve the dispute in the
caselaw regarding the nature and quantum of evidence required
to overcome this presumption, we hold that, 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
Court of Appeals of Indiana | Memorandum Decision 18A-GU-1604 | December 21, 2018 Page 9 of 12
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. This determination falls within the sound
discretion of our trial courts, and their judgments must be
afforded deferential review.
In re Guardianship of B.H., 770 N.E.2d 283, 287 (Ind. 2002) (internal quotation
marks and citation omitted).
[9] Chacon’s argument focuses solely on questioning the parents’—primarily,
Mother’s—truthfulness and credibility, citing to evidence outside the record,
and describing events that have apparently taken place since the appealed order
was entered. We may not and will not base our ruling on any of these
arguments. Moreover, as noted above, there is neither a transcript nor an
Court of Appeals of Indiana | Memorandum Decision 18A-GU-1604 | December 21, 2018 Page 10 of 12
appendix included in the record on appeal; consequently, we are left only with
the appealed order itself to review.4
[10] The trial court found, based on the evidence before it, that Mother and Father
are both employed, that Father is complying with the terms of his parole, that
they have a stable home, that they each (to varying degrees) maintained
relationships with Child during the years he lived with Chacon, and that Child
was well cared for during the months he lived with his parents. Given these
findings and the strong presumption in favor of placement with natural parents,
we cannot say that the trial court erred by denying Chacon’s guardianship
petition.
[11] Child (and his parents) are very lucky that Chacon was able and willing to step
in as his custodian during the years when the parents were absent. Chacon is
clearly acting with sincere love and concern for Child. But at this point, the
trial court found that it is time for Child’s parents to step back in and resume
their roles as his caregivers. Nothing in Chacon’s brief or the trial court’s order
leads us to conclude that this decision was erroneous.
4
We note that to the extent that Chacon argues that Mother and Father have not complied with the trial
court’s orders regarding Child’s IEP and ADHD medication, the proper course of action would be to file a
motion with the trial court. This Court is unable to review such claims.
Court of Appeals of Indiana | Memorandum Decision 18A-GU-1604 | December 21, 2018 Page 11 of 12
[12] The judgment of the trial court is affirmed.
May, J., and Tavitas, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-GU-1604 | December 21, 2018 Page 12 of 12