M.B. v. G.G. (mem. dec.)

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Mar 07 2018, 7:01 am
this Memorandum Decision shall not be
CLERK
regarded as precedent or cited before any Indiana Supreme Court
Court of Appeals
court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Justin K. Clouser Derick W. Steele
Noel Law Kokomo, Indiana
Kokomo, Indiana
IN THE
COURT OF APPEALS OF INDIANA
M.B., March 7, 2018
Appellant-Respondent, Court of Appeals Case No.
34A02-1708-DR-1828
v. Appeal from the Howard Circuit
Court
G.G., The Honorable Lynn Murray,
Appellee-Intervenor. Judge
Trial Court Cause No.
34C01-0812-DR-1261
Bailey, Judge.
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Case Summary
[1] M.B. (“Father”) appeals from a custody order concerning his two daughters,
S.B. and L.B. (the “Children”), wherein the trial court granted physical custody
to G.G., the Children’s stepfather (“Stepfather”), who had cared for the
Children before and after the death of their mother (“Mother”).
[2] We affirm in part and reverse in part.
Issues
[3] Father presents the following restated issues:
I. Whether there was sufficient evidence to overcome the
presumption in favor of placing the Children with Father,
a natural parent; and
II. Whether the trial court abused its discretion in finding a
provision of the Indiana Parenting Time Guidelines
wholly inapplicable.
Facts and Procedural History
[4] Father and Mother married in 2004, and S.B. was born in October 2007.
Approximately one year later, Father and Mother separated, and Mother
petitioned to dissolve the marriage in December 2008. Around that time,
Father was incarcerated for seven months while he awaited trial on charges that
were ultimately dismissed. After his release, Father moved to Montana, and he
returned to Indiana in mid-2010. The dissolution action remained pending.
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[5] Meanwhile, Mother began dating Stepfather in 2009. Mother and S.B. moved
in with Stepfather in January 2010 and moved out in November 2010. At that
point, Mother and S.B. lived in their own residence for six months. Father and
Stepfather each visited the residence, and L.B. was conceived. Mother and S.B.
then returned to Stepfather’s residence; they began living with Stepfather in
May 2011, and remained there when L.B. was born in November 2011.
[6] Both Mother and Father abused alcohol at times. Father accrued several
convictions for driving while intoxicated in 2010, 2011, and 2012. As for
Mother, approximately two weeks after L.B.’s birth in November 2011, Mother
was found passed out in her vehicle. L.B. was with Father at the time. After
this incident, Mother was incarcerated. While Mother was incarcerated and
while she participated in a rehabilitation program, Mother’s mother (“Maternal
Grandmother”) took care of the Children. Stepfather would visit the Children.
The Children also spent one night with Father around Christmas of 2011.
[7] After Mother completed a rehabilitation program in early 2012, she reassumed
care of the Children and moved in with Stepfather. Thereafter, Mother,
Stepfather, and the Children lived together as a family. Mother relapsed at one
point in 2012, and was sentenced to in-home detention on a conviction of
driving while intoxicated. After the conviction, Mother maintained her
sobriety. Mother also sought to finalize the dissolution. A final hearing was
held in July 2012, at which time Father was incarcerated and did not appear.
After the hearing, the marriage was dissolved and Mother was awarded custody
of the Children. The court reserved other matters pertaining to the Children
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while awaiting the results of DNA testing, which Father had requested.
However, no DNA testing was completed in response to the dissolution decree.
[8] From early 2012 to mid-2015, Father had minimal contact with the Children:
Mother brought the Children to see Father for a few hours in 2013, and Father
also saw the Children in passing at the grocery store. Meanwhile, Mother and
Stepfather married in December 2014. Several months later, Mother sought
child support from Father, who responsively denied paternity. The court
ordered DNA testing, which took place in mid-2015.
[9] Father’s paternity was established on August 14, 2015. One week later, Mother
unexpectedly died. Father then filed an emergency motion to establish custody;
Stepfather moved to intervene and sought temporary guardianship of the
Children. The trial court held a hearing in September 2015, after which it
granted Stepfather’s motion to intervene, and determined that Stepfather was
the Children’s de facto custodian. The trial court awarded Stepfather
temporary legal and physical custody of the Children. The trial court further
ordered that Father was entitled to parenting time, beginning with weekly
supervised parenting time. Over time, Father and Stepfather agreed to increase
Father’s parenting time such that Father spent time with the Children on
alternate Wednesdays and had overnight parenting time on alternate weekends.
[10] On May 30, 2017, the trial court held a final hearing concerning custody and
associated matters, including parenting time and support. Following the
hearing, the trial court awarded Stepfather custody of the Children, and ordered
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parenting time for Father in accordance with the Indiana Parenting Time
Guidelines. In so ordering, the trial court excluded one of the guidelines.
[11] Father now appeals.
Discussion and Decision
[12] Where an action is “tried upon the facts without a jury,” the trial court is
obligated to enter special findings and conclusions upon a party’s “written
request . . . prior to the admission of evidence.” Ind. Trial Rule 52(A). Here,
prior to the admission of evidence, Stepfather made only an oral request; thus,
although the court ultimately entered special findings and conclusions, it was
not obligated to do so. In such instances, we regard the trial court’s findings as
sua sponte findings, see Faver v. Bayh, 689 N.E.2d 727, 730 (Ind. Ct. App. 1997),
and apply a two-tiered standard of review to any issue covered by the findings,
Steele-Giri v. Steele, 51 N.E.3d 119, 123 (Ind. 2016). That is, we look to
“whether the evidence supports the findings, and whether the findings support
the judgment.” Id. “Any issue not covered by the findings is reviewed under
the general judgment standard, meaning a reviewing court should affirm based
on any legal theory supported by the evidence.” Id. at 123-24.
[13] In conducting our review, we “consider only the evidence and reasonable
inferences that are most favorable to the judgment,” In re V.A., 51 N.E.3d 1140,
1143 (Ind. 2016), giving “due regard . . . to the opportunity of the trial court to
judge the credibility of the witnesses,” T.R. 52(A). Moreover, we “shall not set
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aside the findings or judgment unless clearly erroneous.” Id. A trial court’s
findings are clearly erroneous when the record contains no facts to support
them either directly or by inference; a judgment is clearly erroneous if it applies
the wrong legal standard to properly found facts. Town of Fortville v. Certain
Fortville Annexation Territory Landowners, 51 N.E.3d 1195, 1198 (Ind. 2016).
Ultimately, we will reverse only upon a showing of clear error: “that which
leaves us with a definite and firm conviction that a mistake has been made.”
Egly v. Blackford Cty. Dep’t of Pub. Welfare, 592 N.E.2d 1232, 1235 (Ind. 1992).
Custody Determination
[14] “Child custody determinations fall squarely within the discretion of the trial
court and will not be disturbed except for an abuse of discretion,” which occurs
when the trial court’s decision is against the logic and effect of the facts and
circumstances before it, or the reasonable inferences to be drawn therefrom. In
re B.H., 770 N.E.2d 283, 288 (Ind. 2002). The trial court “shall determine
custody and enter a custody order in accordance with the best interests of the
child.” Ind. Code § 31-17-2-8; see also I.C. § 31-17-2-21 (requiring a “best
interests” analysis in modifying child custody). In evaluating a child’s best
interests, the trial court must consider all relevant factors, including statutory
factors—among them, “[e]vidence that the child has been cared for by a de
facto custodian.” Id. A de facto custodian is “a person who has been the
primary caregiver for, and financial support [sic] of, a child who has resided
with the person for at least . . . one (1) year if the child is at least three (3) years
of age.” I.C. § 31-9-2-35.5. If there is a de facto custodian, the trial court must
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consider several additional factors, I.C. § 31-17-2-8, and the court “shall award
custody of the child to the child’s de facto custodian if the court determines that
it is in the best interests of the child,” I.C. § 31-17-2-8.5(d). However, there is
an “important and strong presumption that the child’s best interests are
ordinarily served by placement in the custody of the natural parent.” B.H., 770
N.E.2d at 287.
[B]efore placing a child in the custody of a person other than the
natural parent, a trial court must be satisfied by clear and
convincing evidence that the best interests of the child require
such a placement. The trial court must be convinced that
placement with a person other than the natural parent represents
a substantial and significant advantage to the child.
Id. In making its determination, the trial court is not limited to specific criteria,
although “evidence establishing the natural parent’s unfitness or acquiescence,
or demonstrating that a strong emotional bond has formed between the child
and the third person, would of course be important.” Id. Furthermore, the
presumption in favor of the natural parent will not be overcome merely because
a third party could provide better things in life for the child. Id. Moreover, a
trial court’s “generalized finding” is inadequate to support a determination that
“placement other than with the natural parent is in a child’s best interests.” Id.
Rather, the trial court must make “detailed and specific findings.” Id. Whether
the presumption is overcome ultimately “falls within the sound discretion of
our trial courts, and their judgments must be afforded deferential review.” Id.;
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see also Steele-Giri, 51 N.E.3d at 124 (acknowledging the “well-established
preference in Indiana” for giving deference to trial judges in family matters).
[15] Here, the trial court entered thorough findings concerning its decision to place
the Children with Stepfather, including a finding that Stepfather “has forged
and maintained a deep emotional bond[] with the [C]hildren as strong as any
biological parent.” Appellant’s App. Vol. II at 36. The trial court further found
that severing the custodial relationship “would cause serious emotional damage
to the [C]hildren,” observing that Stepfather has provided “stability and a
continuity of nurturing care, especially essential for the [C]hildren, having to
cope with the loss of their mother.” Id. at 40. The court also acknowledged
S.B.’s preference to remain with Stepfather and acknowledged the Guardian Ad
Litem’s opinion that the Children’s long-term interests were best served by
remaining with Stepfather: “[t]he stability provided by [Stepfather] over the last
few years is the only they have known and neither girl, especially [S.B.], would
be able to successfully cope with such a drastic change.” Appellee’s App. Vol.
III at 30. Ultimately, the trial court found “by clear and convincing, as well as
compelling, evidence” that it was in the Children’s best interests to remain in
Stepfather’s custody. Appellant’s App. Vol. II at 40.
[16] Father argues that the evidence is insufficient to overcome the presumption in
favor of placing the Children with him. In so arguing, Father directs us to
several commendable changes in his life, and chiefly likens this case to In re
B.W., 45 N.E.3d 860 (Ind. Ct. App. 2015). Yet, that case involved public policy
concerns that are not present here. See B.W., 45 N.E.3d at 867 (expressing
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concern that where a struggling mother had consented to guardianship and then
turned her life around, an eventual custody determination in favor of a third
party would discourage struggling parents from seeking a “safety net”). Father
also argues that awarding him custody would not have severed the relationship
with Stepfather because Father was open to visitation. Moreover, Father
asserts that the court improperly focused on his prior unfitness, and improperly
reflected on Stepfather’s financial stability and lack of criminal history.
[17] However, we are not free to reweigh the evidence, which indicates that for
several years of the Children’s young lives, Stepfather assumed a central
parenting role at a time when Father denied his paternity. During that time,
Stepfather developed a strong emotional bond with the Children, and the
evidence indicates that neither child would be able to cope with a change in
custody—especially as they still cope with Mother’s death. We accordingly
conclude that there is evidence sufficient to overcome the presumption in favor
of Father, and that there is evidentiary support for the trial court’s finding that it
is in the Children’s best interests to remain in Stepfather’s custody. Thus, we
discern no abuse of discretion in the trial court’s custody determination.
Parenting Time
[18] Father challenges the trial court’s determination that a provision of the Indiana
Parenting Time Guidelines is inapplicable. “A trial court’s determination of a
parenting time issue is afforded latitude and deference; we reverse only when
the trial court abuses its discretion.” Dumont v. Dumont, 961 N.E.2d 495, 501
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(Ind. Ct. App. 2011), trans. denied. “No abuse of discretion occurs if there is a
rational basis supporting the trial court’s determination.” Gomez v. Gomez, 887
N.E.2d 977, 983 (Ind. Ct. App. 2008). Therefore, “it is not enough that the
evidence might support some other conclusion,” rather, the evidence “must
positively require” a different conclusion before there is a basis for reversal.
Duncan v. Duncan, 843 N.E.2d 966, 969 (Ind. Ct. App. 2006), trans. denied.
Furthermore, in reviewing the trial court’s decision, “[w]e will not reweigh the
evidence or judge the credibility of the witnesses.” Gomez, 887 N.E.2d at 983.
[19] The Indiana Code provides that “[a] parent not granted custody of the child is
entitled to reasonable parenting time rights.” I.C. § 31-17-4-1(a). Moreover,
there is a presumption that the Indiana Parenting Time Guidelines “are
applicable in all cases” involving child custody. Ind. Parenting Time
Guidelines pmbl. (C)(3). A trial court may deviate from those guidelines. See
id. However, when a deviation results in less than the minimum parenting time
set forth in the guidelines, the trial court must provide “a written explanation
indicating why the deviation is necessary or appropriate in the case.” Id.
[20] Here, the trial court ordered that Father generally should have guideline
parenting time, but the court specified that a particular guideline did not apply.
The excluded guideline sets forth the opportunity for additional parenting time:
When it becomes necessary that a child be cared for by a person
other than a parent or a responsible household family member,
the parent needing the child care shall first offer the other parent
the opportunity for additional parenting time, if providing the
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child care by the other parent is practical considering the time
available and the distance between residences.
P.T. Guidelines § I(C)(3). The trial court explained that this guideline should
not apply “due to the distance between residences” and the Children’s close
bond with Maternal Grandmother, “who principally has provided child care
when needed.” Appellant’s App. Vol. II at 42.
[21] Father argues that the trial court erred in excluding this guideline, asserting (1)
that the non-custodial parent should have the opportunity for additional
parenting time “even when a non-household family member is available” and
(2) that there was no evidence that “the distance between the residences is so
substantial in nature as to make the option impractical.” Appellant’s Br. at 15.
[22] As to the distance between the residences, the evidence indicates that Father
and Stepfather live some distance apart: Stepfather lives in Peru and Father
lives in Kokomo. Yet, the guideline already accounts for the practicality of
extending a parenting opportunity in light of the amount of “time available and
the distance between residences.” P.T. Guidelines § I(C)(3). Thus, distance
alone does not provide a rational basis for altogether eliminating Father’s right
to additional parenting opportunities.
[23] As to the Children’s relationship with Maternal Grandmother, the trial court’s
findings have evidentiary support. However, “[o]ur family law statutes and
Guidelines do not provide grandparents with access rights superior to those of
parents who desire to spend additional time with a child.” D.G. v. S.G., 82
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N.E.3d 342, 350 (Ind. Ct. App. 2017), trans. denied. Moreover, even if the trial
court fashioned the deviation to provide stability under the tragic circumstances
of this case, the deviation is nonetheless overbroad. That is, because the order
completely excludes the guideline, even if Maternal Grandmother is unable to
care for the Children, Father has no right to additional parenting opportunities.1
In this respect, the findings related to Maternal Grandmother do not support
the decision to eliminate Father’s opportunity for additional parenting time.
[24] We accordingly reverse that portion of the order providing for this deviation.
Conclusion
[25] The trial court did not abuse its discretion in placing the Children with
Stepfather, but the court abused its discretion in refusing to apply, in all
circumstances, one of the Indiana Parenting Time Guidelines.
[26] Affirmed in part and reversed in part.
Kirsch, J., and Pyle, J., concur.
1
To the extent the trial court sought to proactively preserve a relationship with Maternal Grandmother, we
observe that Maternal Grandmother could someday seek visitation. See I.C. § 31-17-5-1 (providing that “[a]
child’s grandparent may seek visitation rights if . . . the child’s parent is deceased.”).
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