In Re the Visitation of: K.W. and A.W. (Minors), E.B. v. J.W. (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any
Nov 23 2016, 10:28 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
Erik H. Carter Michael R. Auger
Carter Legal Services LLC Franklin, Indiana
Noblesville, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In Re the Visitation of: November 23, 2016
K.W. and A.W. (Minors), Court of Appeals Case No.
41A05-1605-MI-1046
E.B.,
Appeal from the Johnson Superior
Appellant-Petitioner, Court
v. The Honorable Marla Clark, Judge
Trial Court Cause No.
J.W., 41D04-1409-MI-164
Appellee-Respondent
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 41A05-1605-MI-1046 | November 23, 2016 Page 1 of 10
[1] E.B. (Grandmother) appeals the judgment of the trial court, which granted the
request of J.W. (Father) that he be allowed to deny Grandmother and J.B.
(Grandfather) (collectively, Grandparents) visitation with K.W. (Son) and
A.W. (Daughter) (collectively, Children). Grandmother argues the following:
(1) the trial court improperly excluded one statement from evidence; (2) the trial
court should have ruled on Grandparents’ petition to appoint a guardian ad
litem before holding hearings; (3) the trial court did not properly consider
certain factors regarding their visitation rights; and (4) the trial court’s findings
were not supported by the record. Finding no error, we affirm.
Facts
[2] Father and Mother were married and had two children together: Son, born in
2002, and Daughter, born in 2004. Father filed a petition to dissolve the
marriage in 2006. Father and Mother contested custody. Grandmother
intervened in the divorce, also seeking custody. She alleged that Father had
sexually assaulted Daughter, an allegation investigated by the Department of
Child Services (DCS) but never substantiated. When Father was granted
custody of Children in 2007, both Mother and Grandmother continued,
unsuccessfully, to attempt to obtain custody.
[3] Mother passed away in August 2014. A month later, Grandparents sought a
grandparent visitation order, which the trial court granted in December 2014 by
agreement of the parties. The parties were able to abide by this order, but
Court of Appeals of Indiana | Memorandum Decision 41A05-1605-MI-1046 | November 23, 2016 Page 2 of 10
Grandparents continued to contact DCS, alleging that Father was neglecting
Children. These allegations were also unsubstantiated.
[4] In March 2015, Children were in Grandparents’ care but were staying the night
at Children’s aunt’s house. Son sexually assaulted his six-year-old cousin.
When the aunt told Father about the incident, Father called DCS and the
police, and Son was placed in juvenile detention for two months. Son has been
on probation and has received counseling since the incident. Shortly after this
incident, Daughter attended a “Good Touch, Bad Touch” instructional
program at her school. After the class was over, Daughter disclosed that Son
had inappropriately touched her three years earlier. Father has since placed an
alarm on Son’s bedroom door and instituted a rule that Son cannot be alone
with children younger than him. In the opinion of the trial court, “[f]aced with
a difficult parenting issue, [Son]’s sexual assault of a relative, Father has acted
appropriately and taken reasonable steps to hold [Son] accountable, get him
needed treatment, and protect other members of the household.” Appellant’s
App. p. 13. Since the March 2015 incident, Grandparents have requested
visitations with Daughter, but not with Son.
[5] Over the course of 2015, Grandparents filed two contempt petitions in response
to Father’s noncompliance with the visitation order; one was granted, the other
withdrawn. The trial court ordered additional visitation to make up for these
missed visits.
Court of Appeals of Indiana | Memorandum Decision 41A05-1605-MI-1046 | November 23, 2016 Page 3 of 10
[6] In December 2015, Daughter was visiting with Grandparents and had a fever.
Without administering any over the counter medication or contacting Father,
Grandparents took Daughter to the emergency room. When the hospital
contacted Father, he refused to give his consent for treatment. Father did,
however, take Daughter to the doctor the following day. Since this incident,
Grandparents have not had any visitation with Children.
[7] Grandparents’ relationship with Father, needless to say, is not a healthy one.
Grandmother has called DCS on several occasions. Other members of
Mother’s side of the family have also called DCS; Father estimates that DCS
has visited him at least twice per year, every year, since he obtained custody.
None of the allegations against him have been substantiated. The parties’
communications are often contentious; on one occasion, Father requested
Grandmother to stop harassing him, to which she responded in a text message,
“U are just the sperm donor.” Appellant’s App. p. 12. Grandmother has told
Daughter that Father is not a good parent. Grandparents’ request that they
only want visitation with Daughter but not Son has caused Son to feel
unwanted.
[8] On January 14, 2016, Father filed a Petition for Modification of Visitation,
alleging that Grandmother’s conduct rendered grandparent visitation no longer
in the best interests of Children. Five days later, Grandparents filed an
Emergency Petition for Guardianship, alleging that Father “is not willing to
protect his daughter from ongoing sexual abuse.” Id. at 26-27. Grandparents
also requested that the trial court appoint a guardian ad litem (GAL).
Court of Appeals of Indiana | Memorandum Decision 41A05-1605-MI-1046 | November 23, 2016 Page 4 of 10
[9] The trial court held a hearing on March 29, 2016, at which Father,
Grandmother, and others testified. On April 14, 2016, the trial court granted
Father’s petition, denied Grandparents’ petitions, and ordered Grandmother to
pay $1,500 in attorney fees to Father. Grandmother now appeals.1
Discussion and Decision
[10] Grandmother has four arguments on appeal: (1) the trial court improperly
excluded one statement from evidence; (2) the trial court erred by not
appointing a GAL; (3) the trial court did not consider all appropriate factors in
its decision to terminate Grandparents’ visitation; and (4) there was insufficient
evidence supporting some of the trial court’s findings of fact.
I. Excluded Statement
[11] Grandmother argues that the trial court should not have sustained a hearsay
objection, made by Father after Grandmother began a statement with, “I got
[Daughter] and then she come up to me and said . . . .” Tr. p. 52.
Grandmother argues that the conclusion to this sentence was necessary to
decide the case.
[12] Grandmother’s argument is unavailing. To reverse a trial court’s decision to
exclude evidence, there must have been error by the court that affected a party’s
substantial rights and the party must have made an offer of proof or the
1
Grandparents are divorced. Grandfather lives out of state, has not exercised visitation, and is not
participating in this appeal.
Court of Appeals of Indiana | Memorandum Decision 41A05-1605-MI-1046 | November 23, 2016 Page 5 of 10
evidence must have been clear from the context. Harman v. State, 4 N.E.3d 209,
215 (Ind. Ct. App. 2014). Grandmother did not make any offer of proof, nor is
the substance of what she was planning to say clear from the context. We
simply have no idea what evidence she was seeking to admit and, therefore, we
cannot say that her substantial rights were affected.
II. Appointment of a GAL
[13] Grandmother next argues that the trial court committed reversible error when it
did not rule on the GAL petition before ruling in Father’s favor.
[14] The appointment of a guardian ad litem is a matter left to the trial court’s sound
discretion. Gilbert v. Gilbert, 7 N.E.2d 316, 323 (Ind. Ct. App. 2014). Here, the
trial court made the following conclusion in its order: “The appointment of a
Guardian ad Litem is not in the children’s best interest. The children have
already undergone interviews with trained professionals about the facts at issue
here. It would be harmful to them to have to talk to yet another person about
these issues.” Appellant’s App. p. 14.
[15] Although this case certainly includes some very troubling circumstances, the
proper authorities have been notified and involved throughout. DCS
investigated and eventually closed the case of Son’s sexual assault. DCS has
also investigated the allegations made against Father and found them to be
unsubstantiated. The trial court did not err by finding that it did not need to
appoint a GAL to make its decision, and we decline to reverse on this basis.
Court of Appeals of Indiana | Memorandum Decision 41A05-1605-MI-1046 | November 23, 2016 Page 6 of 10
III. McCune Factors
[16] Grandmother also argues that the trial court did not address all of the factors
required to decide a case involving grandparent visitation.
[17] In Indiana, a child’s grandparent may seek visitation rights if the child’s parent
is deceased. Ind. Code § 31-17-5-1. On the other hand, “natural parents have a
fundamental constitutional right to direct their children’s upbringing without
undue governmental interference, and . . . a child’s best interests do not
necessarily override that parental right.” In re Visitation of M.L.B., 983 N.E.2d
583, 585-86 (Ind. 2013) (citing Troxel v. Granville, 530 U.S. 57 (2000)). In
striking this balance, our Supreme Court has clarified that a grandparent
visitation order “must address” the following factors, known as the McCune
factors:
(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
Court of Appeals of Indiana | Memorandum Decision 41A05-1605-MI-1046 | November 23, 2016 Page 7 of 10
(4) whether the petitioning grandparent has established that
visitation is in the child’s best interests.
Id. at 586 (emphasis original).
[18] Grandmother acknowledges that the trial court made findings tailored to the
first two factors: it found that “[a]ll of the evidence supports the conclusion that
Father is a fit parent.” Appellant’s App. p. 13. It also acknowledged the
“special weight” given to Father’s wish to terminate Grandparents’ visitation.
Id.
[19] Grandmother alleges that trial court did not address the other two factors, but
she is mistaken. Regarding whether Father is completely or partially denying
Grandparents’ access to Children, the trial court acknowledged that Father was
denying all visitation but found that “[t]he level of conflict that grandparent
visitation introduces into Father’s family is extreme and harmful to the
children.” Id. at 13. Moreover, the trial court noted that Father still allows
contact with other members of Mother’s family. Id.
[20] Regarding whether Grandparents have established that visitation is in
Children’s best interests, the trial court made the following conclusion:
“Visitation with Grandfather has not been taking place. Visitation between
Grandmother and [Son] is not in [Son]’s best interest. Visitation between
Grandmother and [Daughter] is not in [Daughter]’s best interest.” Id.
[21] In short, the trial court properly addressed all of the McCune factors. It (1)
found that Father was a fit parent, (2) accorded his decision special weight, (3)
Court of Appeals of Indiana | Memorandum Decision 41A05-1605-MI-1046 | November 23, 2016 Page 8 of 10
properly noted that Father is seeking to terminate all visitation, but (4) found
that this decision was in Children’s best interests. The trial court made no error
in this regard.
IV. Evidence Supporting Findings
[22] Finally, Grandmother argues that several findings of the trial court are not
supported by evidence. We will set aside findings of fact only if they are
“clearly erroneous,” deferring to the trial court’s superior opportunity to
“judgment the credibility of the witnesses.” M.L.B., 983 N.E.2d 583, at 585.
[23] Grandmother contends that there is no evidence supporting the trial court’s
finding that Children are being emotionally scarred by visitation with
Grandparents. Appellant’s App. p. 13. But at the hearing, Father was
specifically asked about the emotional health of Children, and he testified that
visitations were “significantly, emotionally harming” Daughter. Tr. p. 32.
Grandmother also contends that there is no evidence supporting the trial court’s
finding that “Father . . . provides a safe, healthy, drug free, and appropriate
home . . . .” Appellant’s App. p. 13. Again, Father testified that he did so. Tr.
p. 35-36. Grandmother also challenges the finding that “[t]he parties have no
ability to effectively communicate. There is constant conflict regarding
scheduling, exchange times, and locations.” Appellant’s App. p. 12. But the
trial court had evidence that Grandmother referred to Father as a mere “sperm
donor,” language that is not conducive to effective communication. Tr. p. 24.
Court of Appeals of Indiana | Memorandum Decision 41A05-1605-MI-1046 | November 23, 2016 Page 9 of 10
[24] In short, Grandmother disagrees with several of the findings of fact made by the
trial court and, essentially, asks us to reweigh testimony to make different
findings. As the trial court was in a much better position to judge the credibility
of witnesses, this is a request that we deny.
[25] The judgment of the trial court is affirmed.
Vaidik, C.J., and Najam, J., concur.
Court of Appeals of Indiana | Memorandum Decision 41A05-1605-MI-1046 | November 23, 2016 Page 10 of 10