In the Matter of the Paternity of L.C. and C.C. (Minor Children): Nichole Wells v. Joshua Christman, Deborah Christman (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before any May 02 2019, 8:37 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Emily S. Waddle Thomas J. O’Brien
DeMotte, Indiana Lafayette, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Paternity of May 2, 2019
L.C. and C.C. (Minor Children): Court of Appeals Case No.
18A-JP-2923
Appeal from the Jasper Circuit
Nichole Wells, Court
Appellant-Petitioner, The Honorable John D. Potter,
Judge
v.
Trial Court Cause No.
37C01-1501-JP-25
Joshua Christman,
Respondent,
Deborah Christman,
Appellee-Intervenor.
Bailey, Judge.
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Case Summary
[1] L.C. and C.C. (collectively, the “Children”) are minor children born to Nichole
Wells (“Mother”) and Joshua Christman (“Father”). After Father died, his
mother Deborah Christman (“Grandmother”) successfully petitioned for
grandparent visitation rights. Mother now appeals from the order granting
those rights. She presents several issues, which we consolidate and restate as
whether the trial court erred in granting visitation rights to Grandmother.
[2] We affirm.
Facts and Procedural History
[3] Mother and Father had two daughters, L.C. (born in 2010) and C.C. (born in
2013). While Mother and Father were in a relationship, Grandmother
regularly spent time with the Children. In 2014, the relationship between
Mother and Father deteriorated, and Mother eventually received primary
physical custody of the Children. Father had weekly parenting time, and
Grandmother would help by transporting the Children between residences.
[4] Father died in August 2015, which led to Grandmother having little contact
with the Children. Grandmother later petitioned for visitation rights. The trial
court held a hearing and ultimately granted visitation rights to Grandmother.
[5] Mother now appeals.
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Discussion and Decision
[6] When ruling on a petition for grandparent visitation rights, the court must enter
findings and conclusions in accordance with Trial Rule 52. See Ind. Code § 31-
17-5-6; Ind. Trial Rule 52(A). We conduct a two-tiered review of those
findings, first determining “whether the evidence supports the findings and then
whether [the] findings support the judgment.” K.I. ex rel. J.I. v. J.H., 903 N.E.2d
453, 457 (Ind. 2009). In conducting our review, we do not reweigh the
evidence, Stonger v. Sorrell, 776 N.E.2d 353, 358 (Ind. 2002), and must give “due
regard . . . to the opportunity of the trial court to judge the credibility of the
witnesses,” T.R. 52(A). We “shall not set aside the findings or judgment unless
clearly erroneous.” Id. Findings are clearly erroneous when the record
contains no facts to support them, either directly or by inference. Fischer v.
Heymann, 12 N.E.3d 867, 870 (Ind. 2014). “A judgment is clearly erroneous
when there is no evidence supporting the findings or the findings fail to support
the judgment.” J.H., 903 N.E.2d at 457. A judgment is also clearly erroneous
when the court “applies the wrong legal standard to properly found facts.” Id.
[7] “Indiana has enacted legislation . . . recogniz[ing] that ‘a child’s best interest is
often served by developing and maintaining contact with his or her
grandparents.’” In re Visitation of L-A.D.W., 38 N.E.3d 993, 997 (Ind. 2015)
(quoting J.H., 903 N.E.2d at 462). Indeed, Indiana Code Section 31-17-5-1
gives grandparents like Grandmother—whose own child is deceased—the right
to seek visitation. Moreover, a court may grant visitation if it “determines that
visitation rights are in the best interests of the child.” I.C. § 31-17-5-2(a).
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Notably, however, natural parents have a “fundamental constitutional right to
direct their children’s upbringing without undue governmental interference.” In
re Visitation of M.L.B., 983 N.E.2d 583, 586 (Ind. 2013) (discussing Troxel v.
Granville, 530 U.S. 57 (2000) (plurality opinion)). Thus, to “strik[e] a balance”
between the interests of parents and children, visitation orders must 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. (emphasis removed) (citing McCune v. Frey, 783 N.E.2d 752, 757-59 (Ind. Ct.
App. 2003)); J.H., 903 N.E.2d at 462.
[8] Here, the trial court found that “Grandmother has had a close and bonding
relationship” with the Children, App Vol. II at 82, including “substantial and
meaningful contact” with them before Father died, id. at 83. The court also
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found that Father’s death “greatly affected” Mother and Grandmother “to such
an extent that they have shown animosity towards one another which appeared
during the testimony in Court.” Id. at 82. The court found that “Grandmother
has had very little contact with [the Children] since her son passed away” and
that “Grandmother has attempted to maintain a relationship.” Id. The court
acknowledged that Mother had reasons for denying visitation, in that “she
believes allowing Grandmother visitation with her children would cause [the
Children] mental harm and she wanted the [C]hildren to be old enough to
decide for themselves about Grandmother.” Id. The court also addressed
evidence that Mother permits the Children to spend time with their paternal
uncle—Grandmother’s son. The court found that although Mother “claims
that she is not actively trying to exclude Father’s family from the [C]hildren’s
lives . . . the paternal uncle is estranged from his mother, the Grandmother.”
Id. at 83. The court further noted that it had appointed a Guardian Ad Litem
(the “GAL”), and that the GAL’s “report and testimony indicate[] that it would
be in the best interest of the [C]hildren that Grandmother have visitation.” Id.
[9] The court ultimately recited the four factors, then found as follows:
In this case, Mother is a fit parent and has been denying
visitation to the paternal Grandmother. Many unresolved issues
remain surrounding the death of the common connection
between Mother and Grandmother—the [C]hildren’s father.
Mother has unresolved issues teeming with animosity with
paternal Grandmother that appear to be the primary reason for
her denial of visitation. The [C]hildren miss their grandparent
and substantial evidence, including the Guardian Ad Litem
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Report, indicates that visitation with Grandmother would be in
the best interests of the [C]hildren.
Id. at 83.
[10] Mother argues that the trial court erred in several respects. Her arguments
generally focus on whether the trial court erred by either failing to apply or
improperly applying each of the four factors. Mother also asserts that
Grandmother did not meet her burden of proof as the petitioner, and that the
“judgment was not supported by the findings of fact.” Appellant’s Br. at 12.1
[11] Yet, the trial court found that Mother was a fit parent and it gave careful
attention to Mother’s reasons for denying the relationship—thereby addressing
the first and second factors. As to the third factor, the trial court found that
although Mother allowed the Children to have a relationship with a paternal
uncle, Mother was denying the Children a relationship with Grandmother.
[12] Mother mainly focuses on the fourth factor—whether Grandmother established
that visitation was in the Children’s best interests. Mother argues that
Grandmother “presented no evidence” that would support a best-interests
1
Mother presents an argumentative Statement of the Facts, contrary to Appellate Rule 46(A)(6)(b), which
provides that “[t]he facts shall be stated in accordance with the standard of review appropriate to the
judgment or order being appealed.” Moreover, her Argument section contains sparse citation, contrary to
Appellate Rule 46(A)(8)(a), which provides that “[e]ach contention must be supported by citations to the
authorities, statutes, and the Appendix or parts of the Record on Appeal relied on, in accordance with Rule
22.” We remind counsel that non-compliance with Appellate Rule 46 can result in waiver of appellate issues.
See, e.g., Pierce v. State, 29 N.E.3d 1258, 1267 (Ind. 2015). We nevertheless address Mother’s appellate
contentions. See id. (noting a preference to resolve cases on the merits instead of on procedural grounds).
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determination. Appellant’s Br. at 12. Indeed, Mother asserts that attention to
the Children’s best interests “was wholly absent [from] . . . Grandmother’s case
in chief.” Id. at 15. Yet, Grandmother testified that, in her belief, it was in the
Children’s best interests to maintain a relationship with her. Grandmother
testified about her close relationship with the Children before Father died,
including how she would watch them when Mother and Father “need[ed] to go
somewhere or wanted to go out.” Tr. Vol. II at 5-6. Grandmother recalled
taking the Children places, including the pumpkin patch, the zoo, and the mall.
Grandmother also testified about how she would attend school events.
[13] Largely disregarding this testimony, Mother suggests that Grandmother was
obligated to place “Mother in an[] unpleasant or unacceptable light” in order to
prevail on the petition. Appellant’s Br. at 13. However, Mother cites no
authority for this proposition. Mother also focuses on evidence least favorable
to Grandmother. Indeed, at one point, Mother asserts that the Children should
not be “exposed to Grandmother’s negativity,” id. at 14, and that the court
“should have placed more weight” on certain evidence, id. at 15. Mother also
suggests that “no testimony was given . . . to bolster Grandmother’s position.”
Id. Yet, these arguments amount to requests to reweigh the evidence—and we
must decline them. Nevertheless, as to Mother’s assertion that the record was
devoid of additional evidence that visitation was in the Children’s best interests,
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the GAL testified that the Children were “excited” to have a relationship with
Grandmother. Tr. Vol. II at 37. Moreover, the GAL recommended visitation.2
[14] Mother also directs us to In re Visitation of C.S.N., 14 N.E.3d 753 (Ind. Ct. App.
2014), where this Court reversed an order granting visitation rights. There, the
written findings indicated that the court had improperly shifted the burden to
the parent. See id. at 759. The court also erroneously found that the parent had
been completely denying visitation. See id. at 762 (identifying a “significant
difference in situations where a grandparent’s visitation has been merely
reduced versus denied entirely”). Thus, that case involved error in applying
certain factors. Here, however, Mother fails to identify any such error.
[15] Ultimately, although Mother focuses on her fundamental right to direct the
Children’s upbringing, Indiana law permits some interference with that right,
preserving grandparent relationships for children who have lost a parent. In
determining that visitation was in the best interests of the Children, the court
properly addressed each of the four factors. Moreover, Mother has not
identified error in the findings—and those findings support the decision to grant
2
To the extent Mother is suggesting that the trial court failed to give appropriate deference to Mother’s
decision to deny visitation, “it is the trial court’s prerogative to listen to the evidence and determine, in light
of that evidence, whether a parent’s alleged justification for denying or restricting visitation with
grandparents holds water.” Spaulding v. Williams, 793 N.E.2d 252, 260 (Ind. Ct. App. 2003). Here, the trial
court properly acknowledged and considered Mother’s explanation, but ultimately determined that animosity
was the primary motivator for denying visitation—not the proffered concerns about Grandmother’s care.
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visitation rights to Grandmother. We therefore conclude that Mother has not
demonstrated that the trial court clearly erred in granting visitation rights.
[16] Affirmed.
Riley, J., and Pyle, J., concur.
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