In Re: The Visitation of H.B., A.B. v. T.S. and A.S. ( 2014 )

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
before any court except for the purpose May 09 2014, 6:44 am
of establishing the defense of res
judicata, collateral estoppel, or the law
of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
MATTHEW J. MCGOVERN TRISHA S. DUDLO
Anderson, Indiana KELLY A. LONNBERG
Bamberger Foreman Oswald and Hahn, LLP
Evansville, Indiana
IN THE
COURT OF APPEALS OF INDIANA
IN RE: THE VISITATION OF H.B., )
)
A.B., )
)
Appellant-Respondent, )
)
vs. ) No. 87A01-1309-MI-415
)
T.S. and A.S., )
)
Appellees-Petitioners. )
APPEAL FROM THE WARRICK SUPERIOR COURT
The Honorable Robert R. Aylsworth, Judge
Cause No. 87D02-1307-MI-854
May 9, 2014
MEMORANDUM DECISION – NOT FOR PUBLICATION
BARNES, Judge
Case Summary
A.B. (“Father”) appeals the trial court’s grant of grandparent visitation to T.S. and
A.S. (“Grandparents”). We remand.
Issue
Father raises two issues, but we find one issue dispositive. We restate that issue as
whether the trial court’s findings of fact and conclusions thereon are adequate to support
the grandparent visitation order.
Facts
H.B. was born in June 2008 to Father and K.M. (“Mother”). Father and Mother
were not married. Mother and H.B. have occasionally lived with her parents,
Grandparents. Although Mother initially had custody of H.B., an Illinois court modified
that custody in March 2012 due to Mother’s alcohol abuse and instability. Father was
awarded sole custody of H.B., and Mother was awarded visitation. In August 2012,
Mother’s visitation was modified to visitation on the first, second, and third Sundays of
each month from 3:00 p.m. to 5:00 p.m. at a restaurant with visitation to be supervised by
Father or his parents. Grandparents visited with H.B. once a month during Mother’s
supervised visitation. Grandparents also attended H.B.’s sporting events, and Father
allowed H.B. to attend a picnic and a birthday party with Grandparents.
In July 2013, Grandparents filed a petition for grandparent visitation pursuant to
Indiana Code Chapter 31-17-5. After a hearing, the trial court granted Grandparents’
request. The trial court entered the following findings of fact and conclusions thereon:
2
1. Upon review of the Illinois parenting time order with
regard to H.B. and the Mother, it is clear to the Court
that H.B. is where she needs to be. The Father has
reasonable concerns with regard to the mother’s
history, and her parenting time is currently supervised.
No order in this cause, now or in the future, should be
interpreted as interfering with or modifying in any way
the Mother’s parenting time order in the Illinois
paternity action.
2. The Grandparent Petitioners’ relationship with H.B.
has been close since birth, and until custody was
changed to the Father.
3. The relationship between the Grandparents and the
Father is not hostile, but likewise not comfortable.
4. The Grandparents’ petition for grandparent time is
granted. The Grandparents shall have one weekend
per month beginning the second Friday of September
2013 and continuing each second Friday of the month
hereafter. The Grandparents shall pick the child up
from the Father’s residence at 6:00 p.m. and return the
child at 3:00 p.m. on Sunday of their weekend either to
the Father’s residence or the location of the Mother’s
supervised parenting time if she is exercising her
parenting time at that time.
5. In addition, the Grandparents shall be entitled to two
(2) overnights during the time period of December 26
through December 31 of each year. At that time she
can celebrate Christmas with her grandparents and
extended family on the Mother’s side.
6. Finally, the Grandparents shall be entitled to five (5)
days of extended grandparent time each summer. The
parties shall work together to coordinate the summer
parenting time. The Grandparents shall give notice of
their choice of summer schedule by April 1 each year
if possible.
7. The Grandparents shall be entitled to a telephone call
with H.B. at least one time per week.
3
8. The Grandparents shall allow no additional contact
between the child and the Mother so long as the
Mother is subject to her current supervised and limited
parenting time.
9. The parties shall use good faith and fair dealing with
each other. Neither party shall argue, criticize or speak
negatively of the other party in the child’s presence.
10. The parties shall cooperate reasonably when a change
in grandparent time is needed due to conflicts in the
parties’ schedules.
Appellant’s App. pp. 81-83. Father now appeals.
Analysis
Father argues that the trial court’s findings are inadequate to support the
grandparent visitation order. The “Grandparent Visitation Act contemplates only
occasional, temporary visitation that does not substantially infringe on a parent’s
fundamental right to control the upbringing, education, and religious training of their
children.” In re Visitation of M.L.B., 983 N.E.2d 583, 586 (Ind. 2013). “Because the
Grandparent Visitation Act requires specific findings of fact and conclusions of law, Ind.
Code § 31-17-5-6, we apply the two-tiered Indiana Trial Rule 52 standard of review.” Id.
at 585. We first determine whether the evidence supports the findings and then whether
the findings support the judgment. Id. We set aside findings of fact only if they are
clearly erroneous, and we defer to the trial court’s superior opportunity to judge the
credibility of the witnesses. Id. A judgment is clearly erroneous when the findings fail to
support the judgment or when the trial court applies the wrong legal standard to properly
found facts. Id.4
Our supreme court recently discussed the four factors that a grandparent visitation
order should address, which include:
(1) a presumption that a fit parent’s decision about
grandparent visitation is in the child’s best interests
(thus placing the burden of proof on the petitioning
grandparents);
(2) the “special weight” that must therefore be given to a
fit parent’s decision regarding nonparental visitation
(thus establishing a heightened standard of proof by
which a grandparent must rebut the presumption);
(3) “some weight” given to whether a parent has agreed to
some visitation or denied it entirely (since a denial
means the very existence of a child-grandparent
relationship is at stake, while the question otherwise is
merely how much visitation is appropriate); and
(4) whether the petitioning grandparent has established
that visitation is in the child’s best interests.
Id. at 586 (quoting McCune v. Frey, 783 N.E.2d 752, 757-59 (Ind. Ct. App. 2003), and
discussing Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054 (2000)). The court noted
that a grandparent visitation order “must address” these factors in its findings and
conclusions. Id. (citing K.I. ex rel. J.I. v. J.H., 903 N.E.2d 453, 462 (Ind. 2009)).
Here, the trial court’s findings only note that Father has reasonable concerns
regarding Mother, that Grandparents previously had a close relationship with H.B., and
that the relationship between Father and Grandparents is not hostile but is also not
comfortable. Despite Grandparents’ strained interpretation to the contrary, we conclude
that the trial court’s findings do not expressly or implicitly address the presumption that
Father’s decision was in H.B.’s best interests, the heightened standard of proof by which
5
Grandparents must rebut that presumption, the fact that Father has allowed some
visitation between H.B. and Grandparents, and whether Grandparents demonstrated that
visitation was in H.B.’s best interests.
“[W]hen a trial court fails to issue specific findings in accordance with McCune,
the order is voidable, and the remedy on appeal is a remand to the trial court instructing it
to enter a proper order containing the required findings.” Id. at 588 (quoting In re
Guardianship of A.L.C., 902 N.E.2d 343, 359 (Ind. Ct. App. 2009)). We therefore
remand to the trial court for entry of new findings and conclusions revealing its
consideration of all four relevant factors, without conducting a new hearing. See, e.g., id.
at 589 (remanding for the entry of new findings and conclusions).
Conclusion
The trial court’s findings and conclusions thereon regarding the relevant factors
are incomplete. We remand this case to the trial court for new findings and conclusions
as required by M.L.B., without hearing new evidence.
Remanded.
BAKER, J., and CRONE, J., concur.
6