K.L. v. E.H. ( 2014 )

FOR PUBLICATION
Apr 09 2014, 9:16 am
ATTORNEY FOR APPELLANT:
KAREN A. WYLE
Bloomington, Indiana
IN THE
COURT OF APPEALS OF INDIANA
K.L., )
)
Appellant, )
)
vs. ) No. 29A02-1308-MI-681
)
E.H., )
)
Appellee. )
APPEAL FROM THE HAMILTON SUPERIOR COURT
The Honorable Steven R. Nation, Judge
Cause No. 29D01-1301-MI-446
April 9, 2014
OPINION - FOR PUBLICATION
BROWN, Judge
K.L. (“Mother”) appeals the trial court’s order granting the petition for visitation
filed by E.H., the paternal grandfather of Mother’s child. Mother raises two issues which
we revise and restate as:
I. Whether the trial court abused its discretion in excluding certain
evidence; and
II. Whether the trial court abused its discretion in granting the paternal
grandfather’s petition for visitation.
We affirm.
FACTS AND PROCEDURAL HISTORY
On May 22, 2009, Mother and W.L. married, and they legally separated in
November 2010. In April 2011, Mother and L.H. (“Father”) began a relationship and at
some point Mother became pregnant. Mother and W.L. divorced on September 2, 2011.
Father’s father, E.H. (“Grandfather”), and his family welcomed Mother, and Mother went
to Grandfather’s house on occasion during that time.
On October 15, 2011, Father committed suicide. Immediately following Father’s
death, Grandfather did not have much contact with Mother due to the devastating nature
of the loss.
On October 28, 2011, Mother filed a verified petition to establish paternity. The
petition alleged that Mother was pregnant, the child was due on April 13, 2012, that she
was not married to Father or anyone else at the time of conception, that Father was the
father of the child, and that his date of death was October 15, 2011. The petition also
requested that the coroner be ordered to hold a sample of Father’s DNA so that genetic
testing could be completed upon the child’s birth.
2
On December 27, 2011, Mother moved back in with W.L. On December 28,
2011, Grandfather asked Mother to come to his house so they could talk, and Mother and
B.S. went to Grandfather’s house in early 2012. Grandfather apologized for not
contacting sooner. On March 10, 2012, Mother had a baby shower and she invited
Grandfather’s family, and Z.H., Grandfather’s wife. Grandfather and Z.H.’s daughters
attended.
On April 4, 2012, Mother gave birth to L.L. Mother texted Grandfather the
following day and invited him and his family to visit with L.L. Grandfather and Z.H.
visited Mother and L.L. in the hospital. In early June 2012, Mother brought L.L. to
Grandfather’s house. After that visit, Grandfather requested on multiple occasions to see
L.L. again via text messages, but Mother did not grant any of Grandfather’s requests.
Grandfather also requested a picture of L.L., but Mother did not provide one.
On August 16, 2012, Grandfather filed a verified motion to intervene in the
paternity action alleging that he was Father’s father and L.L.’s paternal grandfather. The
motion alleged that Father was a Navy veteran and L.L. may be entitled to both Social
Security and military benefits. The motion also stated that Grandfather desired visitation
with L.L.
On October 8, 2012, the court entered a paternity decree finding that Father was
L.L.’s biological father. On January 17, 2013, Grandfather filed a verified petition for
grandparent visitation.
On January 25, 2013, the court held a hearing regarding Grandfather’s petition for
visitation. Z.H. testified that she raised her and Grandfather’s five children together, that
she works for Noblesville Schools as a special education teacher, and that she was
3
supportive of Grandfather obtaining visitation. Grandfather testified that he works for the
Department of Homeland Security, that his family welcomed Mother when she and
Father were in a relationship, that he has a close-knit family, and that he did not have
much contact with Mother shortly after Father died because he needed time to grieve.
Grandfather testified that he apologized for not contacting Mother sooner during his visit
with her in early 2012. He explained that it was a delicate situation because he wanted to
be involved with L.L. but did not want to impose on Mother. He further stated that he
took care of his children on his own for two to three years, changed their diapers, bathed
them, and fed them.
After hearing the testimony of Z.H. and Grandfather, the court indicated that it
wanted the parties to speak with a family counselor or therapist. The court compared the
arrangement with civil mediation and said that neither party could bring the mediator into
court to testify as to what was discussed during the mediation and also informed the
parties that anything that they said during counseling would be completely confidential.
The court required Grandfather to be responsible for the cost of the family therapist.
On February 11, 2013, the court entered an order requiring the parties to
participate in counseling with a counselor/therapist agreed upon by the parties or
appointed by the court if the parties were unable to agree. The order stated that it was the
court’s hope that the parties could settle the matter without further court intervention. On
March 6, 2013, Grandfather filed a request for the court to appoint a counselor/therapist,
and the court later appointed Mary Halladay.
The mediation was unsuccessful, and the court held another hearing on May 3,
2013. Halladay filed a letter with the court, Grandfather filed a motion to strike the letter,
4
and the court granted Grandfather’s motion. At the beginning of the hearing, Mother’s
counsel moved to introduce the testimony of Halladay, which the court denied.
Specifically, the court indicated that it sent the parties to a counselor in the form of a
mediation and it wanted the parties to be free to discuss things without the fear of the
counselor coming back into court and testifying. Mother’s counsel then stated that he
would not ask Halladay what was said by the parties and that Halladay would have
testified that Grandfather terminated the counseling, that progress was being made, and
that she felt if they would have continued they could have developed the trust necessary
to make a functioning and workable agreement.
B.S. testified that Mother was stressed about the fact that she may have to share
L.L. “with somebody who she doesn’t have a relationship with,” and that the visit with
Grandfather in early 2012 was very awkward and Grandfather spoke very little. Id. at 64.
Mother testified that she lives with W.L. and L.L. and works as an independent
subcontractor performing in-home interventions with autistic children on Mondays
through Thursdays from about 8:15 until 4:00 or 5:00 and every other Friday from 9:00
until 5:00. Mother stated that she had four or five face-to-face interactions with
Grandfather at family gatherings prior to Father’s death at which she maybe said “hi,
hello,” but did not really converse with him. Id. at 79. She expressed concern with the
dynamics within Grandfather’s family and that the relationship between Grandfather and
his daughter did not seem very warm. She described Grandfather as void of emotion, and
said that the visit in June with him and L.L. was uncomfortable because he was not really
talking to her and it was Z.H. who was mainly spearheading the conversation. Mother
expressed worry that Grandfather would cause something negative in her relationship
5
with L.L. and a “big fear” was that the “opportunity to tell [L.L.] when and if about her
biological father [would] be taken out of [her] hands.” Id. at 85-86. Mother stated:
I have limited time with my daughter. She’s so young that she goes to bed
so early and I have to work in order to provide for her, which I know is no,
that’s not an exception, a lot of parents have to do that. But then my
weekends are my time to be with her. It’s my time to bond with her and to
create this amazing environment and life that I want for her. So I feel that
by having to interrupt that and then give her to somebody else, it’s just
going to upset the balance that I’m trying so desperately to establish.
Id. at 86-87. Mother expressed that she still firmly had trust issues with Grandfather and
described him as a stranger to her. She went on to say that L.L. has to have a special kind
of putty inserted into her ears before taking a bath or being around water and she did not
have enough interaction with Grandfather to be able to say whether she had concerns
with him following directives, that Z.H. had displayed a strong personality, and she did
not know if her wishes would be honored.
On July 15, 2013, the court granted Grandfather’s petition for visitation. In
addition to making findings regarding the facts previously mentioned herein, the court in
its order stated in part:
4. . . . Father and Mother resided together the summer of 2011 during
which time [L.L.] was conceived. While together, Father and
Mother attended family functions at Grandfather’s home or
otherwise with Grandfather’s family. The evidence reflects that
Father and Mother remained on good terms throughout their
relationship. . . .
5. On October 15, 2011, [Father] died by suicide. . . . [Father] had a
close relationship with his [Grandfather]. The relationship between
Grandfather and Mother was, prior to [Father’s] passing, cordial but
not particularly close which appears, in part, to be the result of the
brevity of Mother and Father’s relationship.
*****
6
10. The day after the child’s birth, April 5, 2012, Grandfather and
members of Father’s family met with Mother at the hospital to
celebrate the delivery of the child. This occurred as a result of
Mother’s own invitation.
11. Subsequently, on June 2, 2012, or 5, 2012, Mother brought [L.L.]
over to Grandfather’s home to visit.
12. Grandfather has requested of Mother on multiple occasions to have
further contact and visitation with [L.L.], however, Grandfather’s
requests were either ignored or denied by Mother without
explanation. Grandfather’s requests were all made by text
messaging. Mother states that she received no invitations by
personal phone calls. This demonstrates to the court an
awkwardness in the relationship between Mother and Grandfather.
13. Both Mother and Grandfather reside in Noblesville, Indiana.
*****
16. Grandfather is the biological father of three children and step-father
of two children. Grandfather has extensive experience in caring for
and raising children and holds many family gatherings and functions
at his home. Grandfather describes his family as being “close knit.”
17. Between the hearings on January 25, 2013 and May 3, 2013, the
parties, at the court’s direction, attempted to mediate a resolution of
this matter with a trained family therapist. The court believed that
there were many emotional issues that needed to be addressed
between the parties including Father’s passing, the failure of the
parties to address Father’s passing together, a lack of
communication, and how, when, and under what circumstances
[L.L.] would learn of Father. Those efforts at mediation and
counseling were not fruitful to resolve the matter at hand.
18. Grandfather requested of Mother that she provide him with a picture
of [L.L.] after [L.L.’s] first birthday. Mother denied Grandfather’s
request.
*****
20. Mother suffers from and has been treated for anxiety and depression
since 2009.
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21. Mother has not prevented but has fostered a close relationship with
[L.L.’s] maternal grandmother and other maternal family members.
[L.L.] sees her maternal grandmother weekly, an aunt weekly,
another aunt every two to three weeks, a cousin two times weekly.
Mother allows [L.L.] visit [sic] with [W.L.’s] father and stepmother
every two weeks, and [W.L.’s] mother occasionally. Mother has not
pursued or fostered a relationship with Grandfather . . . because,
according to Mother, she doesn’t know Grandfather very well and
has had limited contact with him. The court affords little to no
weight to other concerns expressed by Mother as to why she desires
that Grandfather have no contact with [L.L.].
22. It appears to the court that Mother desires to move on with her life
and erase both from her memory and the child’s knowledge any
connection to Father, Grandfather and his family. There is some
indication that Mother’s former husband, with whom Mother now
resides, desires that Mother not resume any further contact with
Grandfather or Grandfather’s family.
23. Grandfather expresses that he has no desire to interfere with
Mother’s ability to parent [L.L.] and respectfully recognizes that
Mother must move on from her emotional attachment to [Father].
He expresses an admirable sense of obligation to [L.L.] as a
grandparent especially in light of Father’s passing. He understands
that his visitation would initially be limited and possibly supervised
by Mother so that [L.L.] would experience no detachment from
Mother. According to Grandfather, he ideally would like to see
[L.L.] every weekend for a couple of hours and for frequent family
gatherings.
24. [L.L.] appears to be a normal and healthy child. There is no
evidence that [L.L.] would be unsafe in Grandfather’s care or that
Grandfather’s contact would negatively influence [L.L.]. On the
contrary, it appears to the court that Grandfather and his family
could and would provide the child with meaningful familial
relationships and experiences that would be in the child’s best
interest.
25. Pursuant to I.C. 31-17-5-1, grandparents are permitted to seek
visitation rights. Grandfather properly filed his petition pursuant to
I.C. 31-17-5-3 and this court is the proper venue for grandparents’
visitation proceedings pursuant to I.C. 31-17-5-4.
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26. The court may grant a grandparent visitation rights if the court
determines visitation rights are in the best interest of the child. I.C.
31-17-5-2(a).
27. I.C. 31-17-5-1 et. seq. (“the Grandparent Visitation Act”) represents
a legislative recognition that, “‘a child’s best interest is often served
by developing and maintaining contact with his or her
grandparents.’” In re: K.I[.], 903 N.E.2d 453, 462 (Ind.[ ] 2009)
(citing Swartz v. Swartz, 720 N.E.2[d] 1219, 1221 ([Ind. Ct. App.]
1999). See also Spaulding v. Williams, 793 N.E.2d 252, 256 ([Ind.
Ct. App.] 2003) citing McCune v. Frey, 783 N.E.2d[ ]752, 755 ([Ind.
Ct. App.] 2003).
28. 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: K.I., 903 N.E.2d, at 462 (internal
citations omitted).
29. In drafting the Act, “the legislature balanced two competing
interests: ‘the rights of the parent to raise their children as they see
fit and the rights of grandparents to participate in the lives of their
grandchildren.’” Id. (quoting Swartz, 720 N.E.2d at 1222).
30. The court has considered 1) the presumption that a fit parent acts in
his or her child’s best interests; 2) the special weight that must be
given to a fit parent’s decision to deny or limit visitation; 3) whether
the grandparent has established that visitation is in the child’s best
interests; and 4) whether the parent has denied visitation or has
simply limited visitation. The court has also considered whether
Grandfather has had or has attempted to have meaningful contact
with the child. See, Spaulding, 793 N.E.2d at 257; I.C. 31-17-5-
2(b).
31. Though the court must presume that a fit parent acts in her child’s
best interests, the presumption is rebuttable, and grandparents bear
the burden of rebutting the presumption. Id. at 258.
32. The court is not required to accept a parent’s reasons for denying or
restricting visitation with grandparents as necessarily true. Id. See
also, Hicks v[.] Larson, 884 N.E.2d 869, at 875 [(Ind. Ct. App.
2008), trans. denied].
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33. It is in [L.L.’s] best interest for [her] to know her heritage, and to be
exposed to and enjoy the family relationships and values of her
paternal Grandfather.
34. It is in [L.L.’s] best interest that she have contact and visitation with
Grandfather and that Grandfather’s request for visitation be granted
as provided herein.
35. All Findings of Fact are incorporated by reference as Conclusion of
Law and all Conclusions of Law are incorporated by reference as
Finding of Fact.
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED
that the Grandfather’s Petition is hereby granted and Grandfather is granted
visitation as follows:
1. The Grandfather shall have four hours of visitation with [L.L.] each
month. Visitation shall take place on the second and forth [sic]
Sunday of each month, two hours in duration each visit. The
visitation shall be supervised by the Mother for the first two months.
Thereafter said visitation shall be unsupervised. In the event any
visitation Sunday is a holiday, the Grandfather’s visitation shall
occur the following Sunday. After four months, the visitation will
increase to three hours in duration each visit.
2. Unless the parties otherwise agree, all visitation shall take place and
all exchanges of the child shall take place at the Grandfather’s home.
Further, all visitation shall take place from 1:00 p.m. to 3:00 p.m.
each Sunday, unless the parties otherwise agree.
3. The Grandfather and Mother shall refrain from making negative or
disparaging comments about the other and shall not make any such
remarks in the presence of [L.L.]. The court encourages the parties
to communicate verbally as well as through email and texting.
4. Grandfather may inform [L.L.] that he is her grandfather but shall
not otherwise advise [L.L.] that his son . . . is her father at this time
and without further order. If the child should make an inquiry about
her biological father, the question is to be deferred to Mother.
Mother is encouraged to develop a plan as to how and when she will
advise [L.L.] about her father. When the child is older and the issue
arises, and a plan is not otherwise discussed and implemented
between Mother and Grandfather, the matter should be first
addressed between the parties and with a child counselor and then
presented to the court if an agreement is not reached.
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5. The Grandfather shall have additional visitation with [L.L.] as he
and the Mother agree.
6. Both the Grandfather and the Mother shall each bear their own
expenses in attorney fees in this matter.
7. The court anticipates that if Grandfather’s visitation is faithfully
exercised and as the child matures, a modification with increased
parenting time may be warranted.
Appellant’s Appendix at 5-11.
DISCUSSION
Before addressing Mother’s arguments, we observe that Grandfather did not file
an appellee’s brief. When an appellee fails to submit a brief, we do not undertake the
burden of developing appellee’s arguments, and we apply a less stringent standard of
review, that is, we may reverse if the appellant establishes prima facie error. Zoller v.
Zoller, 858 N.E.2d 124, 126 (Ind. Ct. App. 2006). In this context, prima facie error is
defined as “at first sight, on first appearance, or on the face of it.” Orlich v. Orlich, 859
N.E.2d 671, 673 (Ind. Ct. App. 2006). This rule was established so that we might be
relieved of the burden of controverting the arguments advanced in favor of reversal
where that burden properly rests with the appellee. Wright v. Wright, 782 N.E.2d 363,
366 (Ind. Ct. App. 2002). However, questions of law are still reviewed de novo.
McClure v. Cooper, 893 N.E.2d 337, 339 (Ind. Ct. App. 2008).
I.
The first issue is whether the trial court abused its discretion in excluding
Halladay’s testimony. Mother argues that the court made it clear that it did not intend to
order mediation subject to the Rules of Alternative Dispute Resolution. She contends
11
that evidence that Grandfather sabotaged the alternative process ordered by the court and
prevented the development of a relationship that would have made any visitation order
less damaging and disruptive was clearly relevant to whether Grandfather could be relied
upon to put L.L.’s best interests above his own.
Mother also asserts that even if the settlement proceedings were treated as
mediation subject to the Rules of Alternative Dispute Resolution, neither those rules nor
the Rules of Evidence would require or justify excluding evidence of Grandfather’s
behavior in walking out of the therapy sessions. Mother argues that the confidentiality
rules focus on liability and are inappropriate and damaging where a child’s welfare is
involved, and that Grandfather terminated all efforts at compromise at a time when a
trained counselor believed they were likely to bear fruit. Mother maintains that any
public policy served by keeping a party’s behavior in settlement discussions confidential
must give way to the need to assess behavior and temperament of an adult who seeks to
be put in charge of a child.
The admission of evidence is entrusted to the sound discretion of the court. In re
A.J., 877 N.E.2d 805, 813 (Ind. Ct. App. 2007), trans. denied. We will find an abuse of
discretion only where the court’s decision is against the logic and effect of the facts and
circumstances before the court. Id. If a court abuses its discretion by admitting the
challenged evidence, we will reverse for that error only if the error is inconsistent with
substantial justice or if a substantial right of the party is affected. In re S.W., 920 N.E.2d
783, 788 (Ind. Ct. App. 2010).
At the time of the hearing, Ind. Evidence Rule 402 provided that “[a]ll relevant
evidence is admissible, except as otherwise provided by the United States or Indiana
12
constitutions, by statute not in conflict with these rules, by these rules or by other rules
applicable in the courts of this State. Evidence which is not relevant is not admissible.”
(Subsequently amended effective January 1, 2014).1 Ind. Evidence Rule 408, which
governs compromise offers and negotiations, provided in part:
Evidence of (1) furnishing or offering or promising to furnish, or (2)
accepting or offering or promising to accept a valuable consideration in
compromising or attempting to compromise a claim, which was disputed as
to either validity or amount, is not admissible to prove liability for or
invalidity of the claim or its amount. Evidence of conduct or statements
made in compromise negotiations is likewise not admissible. This rule
does not require exclusion when the evidence is offered for another
purpose, such as proving bias or prejudice of a witness, negating a
contention of undue delay, or proving an effort to obstruct a criminal
investigation or prosecution. Compromise negotiations encompass
alternative dispute resolution.
(Subsequently amended effective January 1, 2014).2
1
Ind. Evidence Rule 402 now provides:
Relevant evidence is admissible unless any of the following provides otherwise:
(a) the United States Constitution;
(b) the Indiana constitution;
(c) a statute not in conflict with these rules;
(d) these rules; or
(e) other rules applicable in the courts of this state.
Irrelevant evidence is not admissible.
2
Ind. Evidence Rule 408 now provides in part:
Evidence of the following is not admissible on behalf of any party either to prove or
disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent
statement or a contradiction:
(1) furnishing, promising, or offering, or accepting, promising to
accept, or offering to accept a valuable consideration in order to
compromise the claim; and
(2) conduct or a statement made during compromise negotiations
about the claim. Compromise negotiations include alternative
dispute resolution.
13
Ind. Alternative Dispute Resolution Rule 1.2 provides that “[a]lternative dispute
resolution methods which are governed by these rules are (1) Mediation, (2) Arbitration,
(3) Mini-Trials, (4) Summary Jury Trials, and (5) Private Judges.” Ind. Alternative
Dispute Resolution Rule 2.11 provides:
Mediation shall be regarded as settlement negotiations as governed by Ind.
Evidence Rule 408.
*****
Mediation sessions shall be closed to all persons other than the parties of
record, their legal representatives, and other invited persons.
Mediators shall not be subject to process requiring the disclosure of any
matter discussed during the mediation, but rather, such matter shall be
considered confidential and privileged in nature. The confidentiality
requirement may not be waived by the parties, and an objection to the
obtaining of testimony or physical evidence from mediation may be made
by any party or by the mediators.
(Emphasis added).
The Indiana Supreme Court has recently held that “Indiana policy strongly favors
the confidentiality of all matters that occur during mediation.” Horner v. Carter, 981
N.E.2d 1210, 1211 (Ind. 2013) (emphases added). The Court also held that “Indiana
judicial policy strongly urges the amicable resolution of disputes and thus embraces a
robust policy of confidentiality of conduct and statements made during negotiation and
mediation.” Id. at 1212.
The trial court made it clear to the parties that their statements made during
mediation would be confidential and that the mediator could not testify. Among other
statements emphasizing the confidentiality of the sessions, the court stated:
I haven’t heard all the evidence. I would like for the two of you to
speak with a family counselor or therapist that the two of you can mutually
14
agree on, and feel comfortable that what you express to the counselor
would be completely confidential. In other words, I’m viewing this as, in
civil cases we have mediation where both parties go to mediation. What’s
discussed at mediation stays at mediation. Nobody can bring that mediator
back into court to testify as to what was discussed during the mediation. I
think it would be helpful as what I’m considering to be somewhat of a
family unit, the two of you, meet with a family counselor and be able to
bare your concerns to that counselor without any fear of that being used in
court, the counselor coming back and testifying. I would not permit it, I
would not allow it. Anything that you would say during counseling would
be completely confidential and I would hope would be helpful though in
perhaps the two of you at least understanding each other’s concerns and
positions and then seeing if the two of you can’t reach a mutual agreement.
Transcript at 48-49.
The court stressed several times that it would not entertain any testimony by the
counselor and that Indiana’s policy strongly favors confidentiality of all matters that
occur during mediation. We cannot say that the trial court abused its discretion in
excluding the testimony Mother wished to elicit from Halladay.
II.
The next issue is whether the trial court abused its discretion in granting
Grandfather’s petition for visitation. A child’s relationship with her grandparents is
important, and can deserve protection under the Grandparent Visitation Act. In re
Visitation of M.L.B., 983 N.E.2d 583, 584 (Ind. 2013). But grandparent-visitation orders
necessarily impinge, to some degree, on a parent’s constitutionally protected rights. Id.An order granting grandparent visitation must therefore include findings that address four
well-settled factors for balancing parents’ rights and the child’s best interests, and must
limit the visitation award to an amount that does not substantially infringe on parents’
rights to control the upbringing of their children. Id.15
The United States Supreme Court has broadly agreed that natural parents have a
fundamental constitutional right to direct their children’s upbringing without undue
governmental interference, and that a child’s best interests do not necessarily override
that parental right. Id. at 586 (citing Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054(2000)). Ind. Code § 31-17-5-6 governs the decree on a petition for grandparent
visitation and provides: “Upon hearing evidence in support of and opposition to a petition
filed under this chapter, the court shall enter a decree setting forth the court’s findings
and conclusions.” Although the amount of visitation is left to the sound discretion of the
trial court, 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 K.I., 903 N.E.2d
453, 462 (Ind. 2009).
Because the Grandparent Visitation Act requires specific findings of fact and
conclusions of law under Ind. Code § 31-17-5-6, we apply the two-tiered Indiana Trial
Rule 52 standard of review. M.L.B., 983 N.E.2d 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, deferring to the trial
court’s superior opportunity to judge the credibility of the witnesses. Id. In turn, 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.
In striking a balance between parental rights and children’s interests, a plurality of
the United States Supreme Court discussed several key principles in Troxel, which
16
Indiana courts have distilled into four factors that a grandparent-visitation order should
address:
(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 (citing McCune v. Frey, 783 N.E.2d 752, 757-759 (Ind. Ct. App. 2003)). The
“special weight” requirement does not require a trial court to take at face value any
explanation given by a parent. Spaulding v. Williams, 793 N.E.2d 252, 260 (Ind. Ct.
App. 2003). The trial court must exercise the same duties it has in any other matter
pending before it, namely, the duties of weighing the evidence and judging witness
credibility. Id. Accordingly, it is the trial court’s prerogative to listen to the evidence
and determine whether a parent’s alleged justification for denying or restricting visitation
with grandparents holds water. Id.In K.I., the Indiana Supreme Court approved of the four factors stated in McCune
and took the additional step of declaring that a grandparent-visitation order “must
address” those factors in its findings and conclusions. M.L.B., 983 N.E.2d at 586
(quoting K.I., 903 N.E.2d at 462). “[T]rial courts must consider all four Troxel
17
principles, as distilled by McCune and made mandatory by K.I.” Id. The court in
McCune stated:
It is important for parties and the reviewing court to have a clear
understanding of how and why the trial court made its decision. It is
particularly imperative in a grandparent visitation case because of the
tension between a parent’s fundamental right to control the upbringing of
his or her child, and the fact that a child’s best interests are “often served by
developing and maintaining contact with his or her grandparents.”
783 N.E.2d at 757. “[I]t will not be enough to merely recite those factors, unless there is
also analysis of how the evidence as weighed by the trial court fits within that
framework.” M.L.B., 983 N.E.2d at 589.
Mother argues that the only evidence supporting Grandfather’s petition is the size
and closeness of his extended family and his experience in taking care of young children,
and that the facts in favor of Grandfather are weaker than the facts that were found
insufficient in Troxel. She contends that Grandfather showed no interest in learning
anything about Mother’s values, that Grandfather’s request of weekend visitation did not
demonstrate that he did a better job than Mother of putting L.L.’s needs first given that
Mother works essentially a full-time weekday schedule, and that further expanding L.L.’s
family circle is an insufficient basis for overruling a fit custodial parent’s decisions.
Mother asserts that even if her failure to respond to Grandfather’s requests after June
2012 is deemed a denial of visitation, that fact does not invalidate the constitutionally
required presumption that she is acting in L.L.’s best interests. She notes that
Grandfather did not present any evidence that he has the ability or experience to cope
with L.L.’s tubes in her ears that were implanted to rectify a series of ear infections, and
posits that injecting Grandfather into L.L.’s life will prematurely raise the subject of
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L.L.’s father and force Mother to discuss it with L.L. far earlier than she deems best.
Mother also argues that there was no evidence that Mother’s planned schedule for
acquainting L.L. with her biological origins would be in any way detrimental to L.L.’s
best interest and that the trial court violated her fundamental parental rights and abused
its discretion by overruling her on this crucial choice.
To the extent that Mother contends that similar facts were found insufficient in
Troxel, we disagree. In Troxel, the Court noted that there was no allegation that the
parent ever sought to cut off visitation entirely. 530 U.S. at 71, 120 S. Ct. at 2062-2063.
The Court observed that the trial court made only two formal findings in support of its
visitation order: (1) the grandparents were part of a large, central, loving family, all
located in the area, and the grandparents could provide opportunities for the children in
the areas of cousins and music; and (2) the children would benefit from spending quality
time with the grandparents, provided that that time is balanced with time with the
children’s nuclear family. Id. at 72, 120 S. Ct. at 2063. The Court held that these
“slender findings” in combination with the trial court’s announced presumption in favor
of grandparent visitation and its failure to accord significant weight to mother’s already
having offered meaningful visitation to the grandparents, demonstrated that the case
involved nothing more than a simple disagreement between the trial court and mother
concerning her children’s best interests. Id.Unlike in Troxel, the trial court here acknowledged the presumption that a fit
parent acts in his or her child’s best interests as well as the other three required factors.
Further, the court acknowledged that members of Father’s family attended a baby shower
for L.L., that Mother invited Grandfather and members of his family to the hospital, and
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that Mother brought L.L. to Grandfather’s home to visit in early June, but the court also
found that Grandfather had made multiple requests to have further contact with L.L. and
Mother ignored or denied these requests. The trial court’s eight-page order detailed
Father and Mother’s relationship, Grandfather’s extensive experience in caring for and
raising children, and Grandfather’s close-knit family. The court afforded little to no
weight to some of the concerns expressed by Mother as to why she desires that
Grandfather have no contact with L.L. The court also found that there was no evidence
that L.L. would be unsafe in Grandfather’s care and that Grandfather and his family could
and would provide L.L. with meaningful familial relationships and experiences that are in
L.L.’s best interest. Under the circumstances, we cannot say that the trial court abused its
discretion in granting Grandfather’s petition.
CONCLUSION
For the foregoing reasons, we affirm the trial court’s order.
Affirmed.
BARNES, J., concurs.
ROBB, J., concurs in part and dissents in part with separate opinion.
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IN THE
COURT OF APPEALS OF INDIANA
K.L., )
)
Appellant, )
)
vs. ) No. 29A02-1308-MI-681
)
E.H., )
)
Appellee. )
ROBB, Judge, concurring in part, dissenting in part
I concur in the majority’s decision regarding the evidentiary issue, but respectfully
dissent from the decision to affirm without reservation the grandparent visitation order. I
do not necessarily disagree with the majority’s decision that the trial court did not abuse
its discretion in granting Grandfather’s petition for grandparent visitation with L.L. This
is especially so given the circumstances in which Father is deceased and without
Mother’s consent and willing participation, there is no other option for Grandfather to
have a relationship with L.L. However, I do not believe the trial court gave appropriate
consideration to Mother’s specific concerns, nor do I believe the visitation schedule
imposed by the trial court is crafted to meet L.L.’s best interests.
A trial court is required to give special weight to a fit parent’s decision regarding
grandparent visitation. In re Visitation of M.L.B., 983 N.E.2d 583, 586 (Ind. 2013).
21
There is no indication Mother is not a “fit” parent, and yet the trial court here specifically
stated that it gave “little to no weight” to Mother’s concerns about visitation between L.L.
and Grandfather. See slip op. at 8 (quoting trial court’s order at paragraph 21). Although
the trial court properly considered the other three required factors, its failure to give
appropriate weight to this factor troubles me. In addition, at this point, L.L. is two years
old and has had no relationship with Grandfather since her early infancy. Two is a
difficult age under the best circumstances, and L.L.’s visitation with a virtual stranger
will likely be trying enough on its own merits. To also order that visitation to
automatically go from being supervised by her mother to unsupervised after only four
visits, and further to order the visitation to automatically increase from two hours twice a
month to three hours twice a month after just sixteen visits is, in my opinion, an abuse of
discretion and contrary to the child’s best interests, especially in light of Mother’s
reluctance to allow visitation at all.
I would remand for the court to revise its order to visitation of two hours twice a
month under the supervision of Mother, with any modifications to that arrangement to be
made only after a report to the court and a finding that unsupervised or additional
visitation is appropriate to these particular parties and this particular situation.
22