In re the Guardianship of B.H. , 2000 Ind. App. LEXIS 887 ( 2000 )

OPINION

ROBB, Judge.

Edward Holley appeals from the trial court’s denial of his motion to terminate temporary guardianship and motion to dismiss petition for appointment of permanent guardian over his two minor children, B .H. and S.H. We reverse and remand.

Issues

Holley raises a single issue for our review: whether the trial court abused its discretion in denying his motions and granting permanent guardianship over the children to the children’s step-father, John Childress, after their mother died.

Facts and Procedural History

Holley and Sherrie (Holley) Childress are the natural parents of B.H. and S.H. Holley served in the United States Army from 1974 until his retirement from the Army in 1996, and the family was stationed in various places throughout the marriage. After Holley and Sherrie separated and prior to their divorce, Holley was stationed in Germany and later in Boston. Holley and Sherrie were divorced by decree of dissolution entered November 27, 1996. The decree provided for Sherrie to have primary physical custody of the children, granted Holley visitation, and ordered him to pay child support in the amount of $120 per week. An order subsequently entered to clarify visitation issues provided that Holley must give Sherrie forty-eight hours notice of his intent to exercise his visitation, and must give five days’ notice if he intended to remove the children from the state.

Upon Holley’s retirement, he found a job and settled in Houston, Texas. Sherrie married Childress in August 1997, and the children resided with them until Sherrie’s death on December 21, 1998. On December 22, 1998, Childress filed an emergency petition for temporary appointment of a guardian over B.H. and S.H., seeking to have himself named their guardian. The petition was granted that same day without a hearing. A week later, Childress filed an affidavit in support of his original petition, which averred that

[t]he emergency nature of the filing of my Petition was also done out of my fear and contemplation that Mr. Holley will further traumatize [B.H.] and [S.H.] by coming to the funeral or coming to our home shortly thereafter and attempting to take the Children out of State without the benefit of a Guardianship proceeding wherein [B.H.] and [S.H.] can have an opportunity to voice their concerns and desires to the Court in chambers and this Court can hear and receive evidence for purposes of determining all matters relating to [B.H.] and [S.H.j’s best interest.

R. 10..

On January 11, 1999, Holley filed a petition to terminate the temporary guardianship and also a motion for visitation. On January 14, 1999, Childress filed a petition to appoint himself permanent guardian over the children, and a hearing on all pending motions was held that same day. The trial court took Holley’s petition to terminate the temporary guardianship under advisement, granted his motion for visitation and set a hearing for a later date on Childress’ petition for permanent guardianship, pending decision on Holley’s petition to terminate. After the hearing, Holley filed a motion to dismiss the petition for permanent guardianship.

On the date set for hearing on the petition for permanent guardianship, the parties appeared, and the trial court denied Holley’s petition to terminate and motion to dismiss. Evidence was then heard on the petition for permanent guardianship. Pursuant to a request for special findings of fact and conclusions of law, the trial court entered an order finding that Holley was unfit to care for his children and that he had abandoned them, and granted Chil-dress’ petition for permanent guardianship. Holley now appeals.

Discussion and Decision

Holley contends that the trial court erred in denying his motions to terminate the guardianship proceedings and instead granting permanent guardianship over his children to Childress.

I. Standard of Review

At Holley’s request, the trial court entered findings of fact and conclusions thereon pursuant to Indiana Trial Rule 52(A). All findings and orders of the trial court in guardianship proceedings are within the trial court’s discretion. Ind. Code § 29-3-2-4; E.N. ex rel. Nesbitt v. Rising Sun-Ohio County Community Sch. Corp., 720 N.E.2d 447, 450 (Ind.Ct.App.1999). Thus, we review those findings under an abuse of discretion standard. Id. In determining whether the trial court abused its discretion, we look to the trial court’s findings of fact required by Indiana Trial Rule 52. See Northern Indiana Pub. Serv. v. Dozier, 674 N.E.2d 977, 989 (Ind.Ct.App.1996). First, we determine whether the evidence supports the findings. Culley v. McFadden Lake Corp., 674 N.E.2d 208, 211 (Ind.Ct.App.1996). Second, we determine whether the findings support the judgment. Id.

The trial court’s findings and conclusions will be set aside only if they are clearly erroneous. Id. Findings of fact are clearly erroneous if the record lacks any evidence or reasonable inferences to support them. Id. The judgment is clearly erroneous if it is unsupported by the findings of fact and conclusions which rely on those findings. Id. In determining whether the findings or judgment are clearly erroneous, we consider only the evidence most favorable to the judgment and all reasonable inferences flowing therefrom. Gunderson v. Rondinelli, 677 N.E.2d 601, 603 (Ind.Ct.App.1997). We will not reweigh the evidence or judge the credibility of the witnesses. Id. Rather, we must accept the ultimate facts as stated by the trial court if there is evidence to sustain them. Yates-Cobb v. Hays, 681 N.E.2d 729, 733 (Ind.Ct.App.1997).

II. Surviving Parent v. Guardian

Child custody determinations fall within the discretion of the trial court and we will not disturb such determination on appeal absent an abuse of that discretion. In re Guardianship of Riley, 597 N.E.2d 995, 997 (Ind.Ct.App.1992). We are reluctant to reverse a custody determination unless it is clearly erroneous and contrary to the logic and effect of the facts and circumstances. Id. Although Indiana courts can award custody of children to someone other than the parents, such awards are generally made only following a determination that the parents are unfit or have all but abandoned the child to the care of a third person. Id.

Indiana Code section 29-3-3-3 states as follows:

Except as otherwise determined in a dissolution of marriage proceeding!,] a custody proceeding, or in some other proceeding authorized by law, including a proceeding under section [29-3-3-6] or another proceeding under this article, and unless a minor is married, the parents of the minor jointly (or the survivor if one (1) parent is deceased), if not an incapacitated person, have, without the appointment of a guardian ... the right to custody of the person of the minor

Section 29-3-3-6, which is referred to in the proceeding section, states:

(a) The surviving parent of a minor does not have the right to custody of the minor without a proceeding authorized by law if the parent was not granted custody of the minor in a dissolution of marriage decree and the conditions specified in this section exist.

(b) If:

(1) the surviving parent, at the time of the custodial parent’s death, had required supervision during visiting privileges granted under a dissolution of marriage decree involving the minor; or

(2) the surviving parent’s visiting privileges with the minor had been suspended at the time of the death of the custodial parent;

the court on petition by any person ... or on the court’s own motion, may appoint a temporary guardian for the minor for a specified period not to exceed sixty (60) days.

Ind.Code § 29-3-3-6(a), (b) (emphasis added).

These provisions implicitly acknowledge the principle that a parent has a presumptive right to custody of his or her minor children absent evidence of unfitness or abandonment. In the case of In re Custody of McGuire, 487 N.E.2d 457, 460 (Ind.Ct.App.1985), this principle was described as follows:

[I]n a custody dispute between a parent and a third party ..., the focus is significantly different because the parties are not on par. Although the child’s best interest is still of great importance, it is presumed that it is in the best interest of the child to be placed in the custody of the parent. Consequently, a nonpar-ent who seeks to displace the parent as custodian bears the burden of overcoming the parent’s presumptively superior right to custody. This burden has been described to require a showing, by clear and cogent evidence, that the parent is unfit or has acquiesced in or voluntarily relinquished custody to the third party for such a long period of time that “the affections of the child and the third party have become so interwoven that to sever them would seriously mar and endanger the future happiness of the child.”

Id. at 460 (quoting Hendrickson v. Binkley, 161 Ind.App. 388, 316 N.E.2d 376, 379 (1974), cert. denied, 423 U.S. 868, 96 S.Ct. 131, 46 L.Ed.2d 98 (1975)). However, this court has since recognized that the preeminent concern is the best interests of the child, and that there might be reasons for preferring a nonparent over a parent which may not fit neatly into one of the three aforementioned categories. In re Paternity of L.K.T., 665 N.E.2d 910, 912 (Ind.Ct.App.1996). Therefore, when considering the placement of custody of a child with a nonparent, as opposed to a parent, our review of the record is not limited only to determining the existence of unfitness, long acquiescence, or voluntary relinquishment of custody by a parent. Instead, we will presume that the trial court correctly applied the law and will consider

whether there is any evidence in favor of the trial court’s determination that the presumption the interest of the child would be best served by placing him in the custody of the natural [parent] had been sufficiently rebutted by the evidence.

Turpen v. Turpen, 587 N.E.2d 537, 539 (Ind.Ct.App.1989).

We note initially that Indiana Code section 29-3-3-6 does not require a hearing in order for Holley to have the right to custody of his children. Childress has alleged in his brief that the March 1997 order requiring Holley to give notice of his intent to exercise visitation constituted a “restriction” on Holley’s visitation. Brief of the Appellee at 11,14-15. The requirement of notice and a number or address at which the children can be reached during visitation is a standard requirement in most counties’ visitation guidelines and is a reasonable requirement to impose in any event. It is not, as Childress characterizes it, a restriction on visitation, and it certainly does not constitute supervision or suspension of visitation as those terms are used in section 29-3-3-6.

Here, it is presumed that it is in the best interest of B.H. and S.H. to be placed in the custody of Holley, as their surviving natural parent. It was Childress’ burden to rebut that presumption by showing that Holley was unfit as a parent, that he had long acquiesced in the current custody arrangement, or had voluntarily relinquished custody of B.H. and S.H. to Childress or other such circumstances that demonstrate the best interests of the children would be best served in his care.

We acknowledge the trial court’s findings of fact addressing each of the above factors as enumerated by the dissent. Childress presented evidence that, prior to Holley and Sherrie’s separation in 1991, Holley had been known to be abusive to Sherrie and verbally abusive to B.H. and also to have abused alcohol. However, it was Childress’ burden to prove Holley’s unfitness at the present time. Hendrickson v. Binkley, 316 N.E.2d at 380. The incidents to which Childress alludes occurred at least ten years prior to these proceedings and without specific evidence that anger control or alcohol remained problems for Holley, are not relevant. Indeed, Holley testified that he had attended Alcoholics Anonymous meetings while stationed in Germany, and although he no longer attends meetings, he currently drinks minimally. Further, Holley testified that upon being confronted about his behavior, he recognized its inappropriateness and testified that it did not occur again.

Following the parties’ separation, Holley agreed that Sherrie should have primary physical custody of the children, and due to his assignments for the Army, was unable to visit with the children on a regular basis. Since retiring from the Army, he has resided in Houston, Texas. Childress alleges that this shows long acquiescence or abandonment of the children. However, Holley has had visitation with the children as time and circumstances permitted, and has attempted contact by phone and by e-mail. He has also paid child support.

We do not believe that the trial court’s conclusions that Holley was unfit, that he had abandoned his children, and that it is not in the best interest of B.H. or S.H. to be placed in Holley’s custody are supported by evidence sufficient to rebut the presumption of his right to custody. Moreover, we have some reservations about relying too heavily upon those findings which reflect poorly on Holley’s character and past activities because it does not appear, from our review of the transcript, that Holley was given a full opportunity to present his case. For instance, at the conclusion of Childress’ presentation of evidence, the trial judge stated: “Despite the fact that I don’t want to do this, I’m going to come back at one and listen to Mr. Holley, because we are here, I guess. And because I’m going to have to ruin my afternoon. Ruin in the sense that I had other plans, but Mr. Holley’s testimony I want to hear .... ” R. 360. This was not the first nor the last allusion the trial judge made to her desire to expedite the process and move the hearing along as quickly as possible, although it is the most egregious. See also R. 287, 289-90, 438. Further, although we cannot independently substantiate this claim because the court reporter’s tape ended and cut the trial judge off mid-sentence at the conclusion of the hearing, Holley claims that after he testified, the trial judge “suspended the hearing and [Holley] was not permitted to call his witnesses.” Brief of the Appellant at 4. This apparent rush to judgment is reflected in many of the trial court’s findings of fact.¹

We do not discount the apparently close and loving relationship between Childress and the children, and we admire Childress’ willingness to accept responsibility where none is required, especially in this era when so many fail or refuse to accept responsibility that is rightly theirs. We also acknowledge the difficult and painful circumstances which led to this proceeding, and we are cognizant of the upheaval that a change in custody will undoubtedly require. However, the mere fact that Childress and the children love each other and that the children wish to remain with him is not sufficient to overcome Holley’s presumptively superior rights to custody of his children. The evidence at the hearing was not sufficient to support the trial court’s findings that Holley was unfit and had abandoned his children. Moreover, the evidence was not sufficient to support a finding that giving custody of B.H. and S.H. to Holley would not be in their best interests. Accordingly, the judgment of the trial court is reversed, and this cause remanded with instructions to terminate the guardianship.

Reversed and remanded.

BAILEY, J., concurs. SHARPNACK, C.J., dissents with opinion.

1 . We would caution the trial judge in the future to be more circumspect in her comments during proceedings before her. We are left with the distinct impression that the trial judge would rather have been doing something other than giving these parties the patient hearing and considered result to which they were entitled, and we cannot condone conduct which leaves us, as it must surely have left the litigants, with the impression that their case was not important enough to merit the time required to have a full hearing.