Brian Blankenship v. Kathy F. and Larry G. Duke ( 2019 )

FILED
Aug 09 2019, 8:45 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT
Cara Schaefer Wieneke
Wieneke Law Office, LLC
Brooklyn, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Brian Blankenship, August 9, 2019
Appellant-Respondent, Court of Appeals Case No.
19A-GU-518
v. Appeal from the
Perry Circuit Court
Kathy F. and Larry G. Duke, The Honorable
Appellees-Petitioners Lucy Goffinet, Judge
The Honorable
Karen Werner, Magistrate
Trial Court Cause Nos.
62C01-1711-GU-21
62C01-1711-GU-22
Vaidik, Chief Judge.
Case Summary
[1] In this case, the trial court appointed grandparents as guardians over their
grandchildren and awarded the father parenting time with the children “as
Court of Appeals of Indiana | Opinion 19A-GU-518 | August 9, 2019 Page 1 of 8
agreed upon by the parties.” The father now appeals, arguing that because the
evidence shows that he and the grandparents do not get along, the trial court
essentially awarded him no parenting time at all. We agree with the father,
vacate this part of the trial court’s order, and remand this case to the trial court.
On remand, the trial court should order reasonable parenting time for the
father, balancing his right to visit the children with the children’s best interests.
Facts and Procedural History
[2] Brian Blankenship (“Father”) and Shannon Blankenship (“Mother”), who are
divorced, have two daughters, A.B., born in 2001, and G.B., born in 2005
(collectively, “Children”). In July 2017, the Indiana Department of Child
Services (DCS) filed a petition alleging that Children were children in need of
services (CHINS) because of Father’s and Mother’s drug use. As part of the
CHINS case, Children were placed with Mother’s parents, Larry and Kathy
Duke (collectively, “the maternal grandparents”).
[3] On November 17, 2017, the maternal grandparents filed a separate action
seeking a guardianship over Children, alleging that Father and Mother were
“not presently capable of properly caring for” them. Appellant’s App. Vol. II p.
8. The maternal grandparents requested supervised visitation for both Father
and Mother:
If this Guardianship is granted, the Petitioners propose that
[Father and Mother] have supervised visitation with their
Court of Appeals of Indiana | Opinion 19A-GU-518 | August 9, 2019 Page 2 of 8
child[ren] at all reasonable times and places as agreed to by the
parties.
Id.
[4] Father and Mother appeared at a hearing on December 12. Mother consented
to the guardianship, but Father did not. The trial court continued the
guardianship hearing and later appointed counsel for Father.1
[5] At the guardianship hearing, Hollie Dawson, the family case manager (FCM)
in the CHINS case, testified that ever since Father had started receiving
supervised visits with Children in the CHINS case in December 2017, he had
attended nearly every visit and that the visit notes indicated that Father had a
good relationship with Children and was attentive to them and their needs. She
also testified that Father was compliant with his drug screens. However, FCM
Dawson believed that it was in the best interests of Children that the maternal
grandparents be appointed guardians because Children were “safe” and
“comfortable” in their home. Tr. p. 187. She also believed that it was in the
1
The trial court appointed counsel for Father on January 2, 2018, and Father’s counsel filed a Motion for
Automatic Change of Judge on January 19. After a hearing on the issue, the trial court denied Father’s
motion. On appeal, Father states that he had thirty days from the date the case was placed and entered on
the CCS to file a motion for change of judge pursuant to Indiana Trial Rule 76(C). He admits that he did not
file his motion for change of judge within thirty days of November 17, 2017; however, he claims that his
delay “should be excused” because he wasn’t served with notice of the guardianship proceedings.
Appellant’s Br. p. 12. Assuming that Father wasn’t served with notice of the guardianship proceedings,
Father appeared at the December 12 hearing and said that he had heard about the proceedings from someone
else. Therefore, even if we started the thirty-day clock on December 12, Father still filed his motion for
change of judge more than thirty days later, on January 19. As for Father’s claim that the thirty-day clock
shouldn’t start until counsel is appointed, he cites no authority for this proposition, and we decline to carve
out such an exception.
Court of Appeals of Indiana | Opinion 19A-GU-518 | August 9, 2019 Page 3 of 8
best interests of Children that they have a relationship with Father and that this
relationship should include parenting time. Id. at 195-96. In fact, she said that
reunification was still the goal in the CHINS case.
[6] The maternal grandmother testified that Children had lived with her and her
husband for about four years and that Father had supervised visits with
Children every Sunday for two hours in the CHINS case. She added that she
and her husband had a “No Trespassing Order” against Father. Id. at 54. The
maternal grandmother also testified that if she were allowed to determine
Father’s parenting time, she would “l[eave] it up to the girls, when they wanted
to see” him. Id. at 62. When asked if she would encourage a relationship
between Father and Children, the maternal grandmother responded, “Well, if
[Father] changed. I don’t see that. But if he . . . had changed I would. Yes.”
Id. at 65. Finally, when asked if it would be useful for her and Father to
communicate regarding Children, the maternal grandmother said no because
“we can’t get along together.” Id. at 67. In fact, the maternal grandmother said
that she had not tried to communicate with Father “at all.” Id. at 55.
Court of Appeals of Indiana | Opinion 19A-GU-518 | August 9, 2019 Page 4 of 8
[7] In December 2018, the trial court issued an order granting the guardianship.2
Specifically, the court found:
9. The DCS caseworker state[d] that it is in [C]hildren’s best
interest that Kathy and Larry Duke be granted guardianship over
[them]. The DCS caseworker stated that [F]ather is compliant
with drug screens and that he has attended most visits with his
children since he started receiving visits in the CHINS case
around December, 2017.
10. The Court finds [F]ather to be unfit to care for these children
on a day to day basis.
11. The Court finds that the appointment of a guardian is
necessary as a means of providing care and supervision for
[Children].
12. The Court finds it is in [C]hildren’s best interest to appoint
Kathy and Larry Duke as guardians over [them].
13. Visitation by [M]other and [F]ather shall be as agreed upon
by the parties.
Appellant’s App. Vol. II pp. 43-44 (emphasis added). Father filed a motion to
correct error asking for more specificity regarding his visitation with Children:
7. Testimony by Father and by [the maternal grandmother]
indicated a high level of animosity between the parties. [The
2
A few days later, the trial court in the CHINS case entered an order closing the case because permanency
had “been achieved through an approved permanency plan of guardianship.” See Cause Nos. 62C01-1707-
JC-168, -170.
Court of Appeals of Indiana | Opinion 19A-GU-518 | August 9, 2019 Page 5 of 8
maternal grandmother] testified that she had never tried to
facilitate any visits between Father and the Children during the
nearly four years that the Children had been living with her.
*****
16. In only granting Father visitation with the children “as
agreed upon by the parties,” the Court failed to address the legal
imperative to maintain the Children’s relationship with their
Father even if a guardianship was granted, especially given the
testimony from [FCM Dawson] that it is in the Children’s best
interest to continue to have parenting time with Father.
Id. at 45, 46-47. The trial court denied Father’s motion to correct error.
[8] Father now appeals.
Discussion and Decision
[9] We first note that the maternal grandparents have not filed an appellees’ brief.
When the appellee fails to submit a brief, we will not develop an argument on
her behalf but, instead, we may reverse the trial court’s judgment if the
appellant’s brief presents a case of prima facie error. GEICO Ins. Co. v. Graham,
14 N.E.3d 854, 857 (Ind. Ct. App. 2014).
Court of Appeals of Indiana | Opinion 19A-GU-518 | August 9, 2019 Page 6 of 8
[10] Father contends that the trial court “did not adequately provide for
parenting/visitation for [him] with his children.”3 Appellant’s Br. p. 10. He
points out that “it is clear from the hearing that [the maternal grandparents]
have great difficulty communicating with [him], and no desire to overcome
those hurdles.” Id. at 10-11. Accordingly, Father claims that the trial court’s
order allowing him visitation “as agreed up by the parties” will “inevitably
result in conflict and denial of visitation to [him].” Id. at 11. He therefore asks
us to remand this case so that the trial court “can articulate a minimum amount
of visitation that he should receive each week with his daughters, and articulate
any reasons for limitations or restrictions on that visitation.” Id. at 19.
[11] This Court’s opinion in Manis v. McNabb, 104 N.E.3d 611 (Ind. Ct. App. 2018),
is helpful. In that case, we held that when a trial court orders parenting time in
a guardianship case, it cannot allow the guardian, who often has a personal
stake in the matter, to determine the parent’s parenting time with their child
during the guardianship proceedings. Id. at 621. We cautioned that doing so
has the potential to deprive the parent and the child of time together and an
opportunity to develop a meaningful relationship and bond. Id. We explained
that if the parties cannot agree on their own to a parenting-time plan that is in
the best interests of the child, then the trial court must take an active role in
developing one. Id.
3
Father does not challenge the appropriateness of the guardianship itself. He only challenges the part of the
trial court’s order regarding parenting time.
Court of Appeals of Indiana | Opinion 19A-GU-518 | August 9, 2019 Page 7 of 8
[12] Here, the trial court awarded Father parenting time “as agreed upon by the
parties.” But as Father argues, the evidence before the trial court was that he
and the maternal grandparents do not get along. And the maternal
grandparents have not filed an appellees’ brief arguing otherwise. By making
the parties agree upon parenting time, the trial court has essentially allowed the
maternal grandparents to determine Father’s parenting time with Children. It
was error for the court to do so. We therefore vacate this part of the trial court’s
order. On remand, the trial court should “order reasonable parenting time for”
Father, balancing his right to visit Children with Children’s best interests. Id. at
620-21 (explaining that when ordering parenting time in guardianship cases, the
“best practice” is for the trial court to make specific findings to support its
parenting-time order).
[13] Reversed and remanded.
Riley, J., and Bradford, J., concur.
Court of Appeals of Indiana | Opinion 19A-GU-518 | August 9, 2019 Page 8 of 8