In the Matter of the Guardianship of I.R., M.P. and D.P. v. M.M.J.S , 2017 Ind. App. LEXIS 222 ( 2017 )

FILED
May 30 2017, 8:35 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE
Shana D. Tesnar Amber M. Neal
Christopher J. Evans Delk McNally LLP
Adler Tesnar & Whalin Muncie, Indiana
Noblesville, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the May 30, 2017
Guardianship of I.R., Court of Appeals Case No.
18A05-1610-GU-2431
M.P. and D.P.,
Appeal from the
Appellants-Respondents, Delaware Circuit Court
v. The Honorable
Marianne L. Vorhees, Judge
M.M.J.S., Trial Court Cause No.
18C01-1501-GU-7
Appellee-Petitioner.
Kirsch, Judge.
[1] M.P. and D.P. (together, “Guardians”) appeal the trial court’s order granting
M.M.J.S.’s (“Mother”) petition to terminate their guardianship over I.R.
(“Child”). Guardians raise the following issue for our review: whether the trial
court erred in terminating their guardianship because the evidence did not
support the trial court’s order.
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[2] We affirm.
Facts and Procedural History
[3] Child is the biological child of Mother and was born on March 7, 2012. In
December 2014, when Child was two years old, Mother was arrested for
neglect of a dependent. At that time, with Mother’s consent, Child was placed
in the care of Guardians, who were Mother’s aunt and uncle. On January 27,
2015, Guardians filed a petition for temporary guardianship of Child, to which
Mother consented, and the petition was granted by the trial court on February
24, 2015. On May 12, 2015, a review hearing was held, during which, the trial
court granted the Guardians permanent guardianship of Child. In the order
granting permanent guardianship, the trial court ordered that Mother must
meet certain conditions prior to modifying or terminating the guardianship.
Appellant’s App. at 26-27. These conditions were as follows:
a. Mother must show she has housing that is safe and stable for
the Child to the satisfaction of this Court;
b. Mother must show she has stable income for a reasonable
period of time to support and financially care for the Child to the
satisfaction of this Court;
c. Mother must show that she has been evaluated for substance
abuse and mental health and that she is receiving regular
treatment for the same and has a reasonable plan to continue
treatment as recommend[ed] and confirmed by the treating
professionals to the satisfaction of this Court;
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d. Mother must show that she is making progress and is healthy
for a reasonable period of time, which includes a showing that
she is sober and mentally stable and not a danger to herself or to
the Child, to the satisfaction of this Court;
e. Mother must show that she is committed to staying healthy
and is able to care for and offer a stable environment for the
Child, to the satisfaction of this Court.
Id. Mother consented to the guardianship of Child and to the conditions for
modification and termination. Id. at 24.
[4] On November 25, 2015, Mother filed a “Verified Petition to Modify and/or
Terminate Guardianship and Request for Expedited Hearing.” Id. at 29. The
Guardians filed three motions to continue the hearing on Mother’s petition,
which were granted by the trial court. A final hearing was held on September
9, 2016, at which evidence was heard.
[5] At the hearing, Mother testified that she was living in an apartment, where she
had resided for over four years. Tr. at 8. The apartment had two bedrooms,
and Child had his own room. Id. Mother was working at McDonald’s and had
been employed there for a year; she had started as a crew member and worked
her way up to being a manager. Id. at 9. Although her hours fluctuated at the
time of the hearing, she had made arrangements to have more stable hours if
Child was returned to her care. Id. at 9-10.
[6] Mother had previously pleaded guilty to her charge of neglect of a dependent
and received eighteen months of probation. Id. at 4-5. At the time of the
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hearing, Mother had almost completed her probation period and was set to be
released from probation on October 8, 2016. Id. at 5. As part of her probation,
Mother was subject to random drug screening, and she passed all of the screens.
Id. at 6. Mother underwent a substance abuse evaluation through Delaware
County Community Corrections (“DCCC”) and followed the
recommendations of DCCC. Id. at 11. She met with a substance abuse
counselor every two weeks for a period of time and was also being treated by a
doctor at Meridian Services concerning her substance abuse issues. Id. at 11-12.
Mother also sought a mental health evaluation and had been treated for her
mental health issues by a doctor since March 2016. Id. at 13. Mother had
attempted to seek treatment in October or November 2015, but was put on a
waiting list and not seen until March 2016. Id. At the time of the hearing,
Mother was still seeing her doctor and was taking antidepressant medication for
depression and anxiety. Id. at 14-15. At a prior hearing, Mother testified she
had been diagnosed as bipolar, but her new doctor determined that diagnosis
was incorrect. Id. at 28.
[7] Initially, Mother had supervised visitation with Child that occurred once a
week for two hours. Id. at 17. This visitation schedule lasted for almost a full
year. Id. She was later allowed to visit with Child for one day a week from
8:00 a.m. to 7:00 p.m. Id. at 16-17. Mother never missed any visitation with
Child. Id. at 18.
[8] While Child stayed with Guardians, he displayed behavioral issues at school,
and Guardians took him to Dr. Sara Davis (“Dr. Davis”) in November 2015.
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Id. at 41, 43. Dr. Davis treated Child for his issues involving interaction with
his classmates and testified that Child was diagnosed with post-traumatic stress
disorder, attention deficit disorder, and disruptive attachment issues. Id. at 42,
43. Dr. Davis testified that she believed it was in Child’s best interest to have
Mother participate in Child’s therapy, and Mother did participate in the therapy
sessions when allowed. Id. at 52, 60. Dr. Davis stated that Child had a hard
time with transitions, and that a transition plan should be implemented to
prepare Child for a transition from Guardians to Mother. Id. at 66. Child also
required an Individualized Educational Plan (“IEP”), which Dr. Davis and
Child’s pre-school teacher both testified could be transitioned to another school
if he was placed with Mother. Id. at 68, 77, 131.
[9] At the conclusion of the hearing, the trial court issued an order terminating the
guardianship. In the order, the trial court found that Mother had satisfied all of
the conditions set forth in the order granting permanent guardianship.
Appellant’s App. at 8-9. The trial court thus found that Mother had carried her
burden to show she had met all of the conditions and also found that Guardians
failed to carry their burden to overcome the presumption in Mother’s favor that
she should raise Child. Id. at 9-10. The trial court ordered a transition period
for custody to return Child to Mother’s care. Id. at 10. Guardians now appeal.
Discussion and Decision
[10] “‘All findings and orders of the trial court in guardianship proceedings are
within its discretion.’” In re Guardianship of M.N.S., 23 N.E.3d 759, 765 (Ind.
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Ct. App. 2014) (quoting In re Guardianship of Hollenga, 852 N.E.2d 933, 936
(Ind. Ct. App. 2006) (citing Ind. Code § 29-3-2-4(a))). We will review the trial
court’s order for an abuse of discretion. Id. Therefore, “[w]e review custody
modifications[,]” such as the one that occurred in this termination of the
guardianship, “for abuse of discretion with a ‘preference for granting latitude
and deference to our trial judges in family law matters.’” K.I. ex rel. J.I. v. J.H.,
903 N.E.2d 453, 457 (Ind. 2009) (quoting Kirk v. Kirk, 770 N.E.2d 304, 307
(Ind. 2002)). In determining whether the trial court abused its discretion, we
review the court’s findings and conclusions, which we may not set aside unless
they are clearly erroneous. In re M.N.S., 23 N.E.3d at 766 (citing In re
Guardianship of J.K, 862 N.E.2d 686, 690-91 (Ind. Ct. App. 2007)). We will
consider the evidence most favorable to the judgment with all reasonable
inferences drawn in favor of the judgment, and we will not reweigh the
evidence nor will we reassess the credibility of witnesses. Id.[11] Guardians argue that the trial court erred in terminating their guardianship of
Child. They assert that, although Mother has a constitutional right to raise
Child, such a right does not overcome Child’s best interest, which is served by
continued placement with Guardians. Guardians contend that Mother failed to
make a sufficient showing that she had met all of the conditions ordered in the
permanent guardianship order. They maintain that the only evidence that
Mother presented during the hearing to establish that she met the conditions
was her own self-serving testimony. Guardians further claim that, even if
Mother had shown that she met all of the conditions, they presented evidence
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to successfully rebut the presumption of custody in favor of Mother. They
allege that their evidence established that Child had spent a considerable
amount of time in their care and had bonded with them, terminating the
guardianship would be harmful to Child, and Child has psychological and
behavioral issues that Mother is not prepared to accommodate. Therefore,
Guardians urge that insufficient evidence was presented to support the trial
court’s order terminating their guardianship of Child.
[12] “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.’” K.I., 903 N.E.2d at 460 (quoting In re J.K., 862 N.E.2d at
692)). There is a strong presumption that a child’s interests are best served by
placement with the natural parent. Id. (citing In re Guardianship of B.H., 770
N.E.2d 283, 287 (Ind. 2002), reh’g denied). A parent’s burden to show a
modification of custody is justified is “minimal,” and after meeting “this
‘minimal’ burden of persuasion to terminate the guardianship, the third party
has the burden to prove ‘by clear and convincing evidence that the child’s best
interests are substantially and significantly served by placement with another.’”
In re M.N.S., 23 N.E.3d at 766 (quoting In re B.H., 770 N.E.2d at 27).
[13] Here, in order to meet her burden, Mother was required to show that she had
met the conditions set forth in the trial court’s order granting permanent
guardianship to Guardians. Under the first condition, Mother was required to
show that she had safe and stable housing for Child. Appellant’s App. at 26. At
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the hearing, Mother presented evidence that she lived in her own apartment,
which had two bedrooms, and that she had lived there for over four years. Tr.
at 8. Under the second condition, Mother was required to show that she had
stable income for a reasonable period of time that would enable her to support
and financially care for Child. Appellant’s App. at 26. Mother testified at the
hearing that she was working at McDonald’s as a manager and had been
employed there for a year. Tr. at 9. Guardians do not challenge these two
conditions, and we agree with the trial court that Mother presented sufficient
evidence to meet these two conditions.
[14] Under the third condition, Mother was required to show that she had been
evaluated for substance abuse and mental health, was receiving regular
treatment, and had a reasonable plan to continue treatment as recommended
and confirmed by the treating professionals to the satisfaction of this Court.
Appellant’s App. at 26 (emphasis added). The evidence at the hearing established
that Mother had been subject to random drug screening as part of her probation
and had passed all of the screens. Tr. at 6. Mother underwent a substance
abuse evaluation through DCCC and followed their recommendations,
including meeting with a substance abuse counselor and being treated by a
doctor at Meridian Services concerning her substance abuse issues. Id. at 11-12.
Mother also obtained a mental health evaluation and had been treated for her
mental health issues by a doctor since March 2016. Id. at 13. We conclude that
Mother presented sufficient evidence to support the trial court’s findings that
she had met the third condition. Guardians’ arguments to the contrary are
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merely requests for this court to reweigh the evidence, which we cannot do. In
re M.N.S., 23 N.E.3d at 766.
[15] Under conditions four and five, Mother was required to show, to the
satisfaction of the trial court, that: (1) she was making progress and had been
healthy for a reasonable period of time, which included a showing that she is
sober and mentally stable and not a danger to herself or to Child; and (2) she
was committed to staying healthy and was able to care for and offer a stable
environment for Child. While it is unclear whether Guardians are arguing that
Mother failed to meet these conditions, there was sufficient evidence presented
to support the trial court’s findings that Mother met conditions four and five.
As stated previously, Mother testified that she was seeing a substance abuse
counselor and being treated by a doctor for her substance abuse issues and that
she was being treated by a doctor for her mental health issues. Tr. at 11-13.
Mother never missed any visitation with Child and had secure housing and
stable employment. Mother’s testimony demonstrated that she had made great
effort to turn her life around and was committed to continuing her treatment.
We, therefore, conclude that sufficient evidence was presented to show that
Mother had met the conditions set forth in the order granting permanent
guardianship.
[16] Because Mother sufficiently met her burden of showing that she satisfied the
conditions set forth by the trial court, Guardians then had the burden to prove
‘by clear and convincing evidence that the child’s best interests are substantially
and significantly served by placement with another.’” In re M.N.S., 23 N.E.3d
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at 766 (quoting In re B.H., 770 N.E.2d at 27). In support of their contention that
Child’s best interests would be served by leaving Child in their care, Guardians
contend that removing him from their care would be traumatic and point to
testimony by Dr. Davis that it would be a “trauma” to terminate their
guardianship. Tr. at 57. However, Guardians misstate Dr. Davis’s testimony.
She testified that an immediate removal from Guardians’ care would be
“another trauma” for Child, but did not give testimony that a gradual transition
would have the same effect. Id. In its order terminating the guardianship, the
trial court ordered a transition period to gradually increase Mother’s parenting
time with Child until she had full-time care of Child. Appellant’s App. at 10-11.
Additionally, there was also no testimony that transitioning Child back to
Mother’s care would be harmful because of his bond with Guardians.
[17] Guardians also assert that the trial court did not consider the passage of time
and its effect on their bond with Child, specifically the finding from the order
granting permanent guardianship that, “[i]f a long period of time has elapsed
before Mother can show she is able to meet the above conditions, such period
of time and the affect [sic] of such time on the Child will also be considered in
determining modification and/or termination of the guardianship.” Appellant’s
App. at 22. Guardians claim that they have had guardianship of Child for
almost half of Child’s life, and in its order terminating the guardianship, the
trial court ignored the finding, in its previous order, regarding the passage of
time. Mother filed her petition to terminate guardianship on November 25,
2015, which was less than one year after Child was placed with Guardians and
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about six months after the order granting permanent guardianship was issued.
After the petition was filed, Guardians filed three motions to continue the
proceedings, which may have added to the length of the proceedings.
Guardians do not point to any evidence how the lapse of time was of such great
length that it would have been harmful to return Child to Mother’s care,
especially in light of the evidence that Mother filed her petition within one year
of Child being placed with Guardians and six months of the permanent
guardianship order and that Mother consistently had visitation with Child.
[18] Guardians next contend that the trial court did not give proper consideration to
Mother’s alleged lack of appreciation of and preparation for Child’s
psychological and behavioral issues. However, the trial court did specifically
recognize Guardians’ argument that Child’s special needs would best be served
by remaining in their care; it found that the evidence did not establish that
Mother could not address Child’s special needs and that the fact that Child had
special needs did not “preclude [Mother] from the opportunity and the right to
parent her child.” Appellant’s App. at 9-10. The trial court further found,
because the Guardians had limited Mother’s parenting time with Child and had
no plan to increase Mother’s time with Child, that it was difficult to determine
whether Mother had the ability to properly care for Child and that Guardians
had not given Mother an opportunity to demonstrate her ability to care for
Child. Id. at 10. The evidence supported these findings by the trial court. We,
therefore, conclude that Guardians did not carry their burden to overcome the
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presumption in Mother’s favor that Child’s best interests are served by
placement with her.1
[19] Affirmed.
[20] Mathias, J., and Altice, J., concur.
1
Guardians make a brief reference in their conclusion to the fact that a guardian ad litem was not appointed
in this matter with no citation to authority or argument. We conclude that any issue as to the failure to
appoint a guardian ad litem is waived for failure to support their argument with cogent reasoning or citation
to authority. Ind. Appellate Rule 46(A)(8)(a).
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