In Re: The Guardianship of C.R. and A.R. E.R. v. M.S. and D.S. (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 Dec 27 2016, 6:45 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEES
E. Kent Moore Amy O. Carson
Laszynski & Moore Massillamany & Jeter, LLP
Lafayette, Indiana Fishers, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In Re: The Guardianship of C.R. December 27, 2016
and A.R. Court of Appeals Case No.
79A02-1603-GU-569
E.R.,
Appeal from the Tippecanoe
Appellant-Respondent, Circuit Court
v. The Honorable Thomas Busch,
Judge
M.S. and D.S., Trial Court Cause No.
79C01-1205-GU-45
Appellees-Petitioners.
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Respondent, E.R. (Adoptive Father) 1 appeals the trial court’s Order
awarding visitation to the Appellees-Petitioners, M.S. (Grandfather) and D.S.
(Grandmother) (collectively, Paternal Grandparents) with his minor children
C.R. and A.R. (collectively, Children).
[2] We reverse.
ISSUE
[3] Adoptive Father raises two issues on appeal, which we consolidate and restate
as the following single issue: Whether the trial court abused its discretion in
denying Adoptive Father’s request to modify the Paternal Grandparents’
visitation.
FACTS AND PROCEDURAL HISTORY
[4] We observe that this is Adoptive Father’s third appeal and we adopt the
recitation of the relevant facts as set forth in Adoptive Father’s first appeal as:
[T]he biological parents of C.[R]. and A.[R]. 2 divorced in May
2009. At the time, they had two children: four-year-old C.R. and
two-year-old A.[R]. Approximately one month later, Biological
Father went to Biological Mother’s house and attacked her with
a hammer, killing her. C.[R]. witnessed at least a portion of the
1
Adoptive Father is also the Children’s biological maternal grandfather.
2
In the First Appeal, the Children were using Biological Father’s last name and were referred to as C.S. and
A.S. However, later on, the Children began using their biological mother’s maiden name and were referred
to as C.R. and A.R.
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attack. Shortly after Biological Mother’s death, the [C]hildren
were the focus of a CHINS proceeding that culminated in the
[C]hildren being placed in Adoptive Father’s custody. In
conjunction with that proceeding, the [trial] court determined
that the [biological] Paternal Grandparents would have visitation
with the [C]hildren one day each week, plus every other
weekend.
In January 2010, Adoptive Father sought guardianship of [the
Children]. His request was granted. At some point, the Paternal
Grandparents sought to have Adoptive Father removed as
guardian, and further sought guardianship of the [C]hildren
themselves. Meanwhile, Adoptive Father observed that the
[C]hildren began to exhibit behavioral problems after returning
from visits with the Paternal Grandparents. These problems
included nightmares, night terrors, and C.[R]. waking up
screaming in the middle of the night. Adoptive Father petitioned
the [trial] court to reduce the amount of the Paternal
Grandparents’ visitation to one visit per month. Following a
hearing, the trial court denied the request and ordered that the
existing visitation order remain in effect.
Gloria Hood, a long-time therapist who worked at the Indiana
Center for Children and Families, had been appointed by the
[trial] court to work therapeutically with the [C]hildren shortly
after their mother’s murder. During her work with the
[C]hildren, Hood consulted on a regular basis with Dr. Ann
Annamis, a psychiatrist practicing with North Meridian
Psychiatric Associates. Hood and Annamis discussed the case
“frequently.” During the course of working with the [C]hildren,
utilizing especially the therapeutic technique of play therapy,
Hood eventually diagnosed C.[R]. as suffering from post-
traumatic stress disorder (PTSD). In December 2010, Hood was
asked to engage the services of another health-care professional,
in this case psychiatrist Dr. David Crane, to “make sure that my
assessment of [C.R.] in particular was on target and that I was
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not missing anything psychiatrically that I should be aware of.”
Dr. Crane reviewed materials that Hood sent him in relation to
her therapy with the [C]hildren and conducted several therapy
sessions with C.[R]. He formed the opinion that she was doing
“a very adequate job” and thus, although he continued to counsel
separately with C.[R]., Dr. Crane adopted a relatively passive
therapeutic role with the child.
As therapy progressed, Hood noted that C.[R]. “experience[ed]
post-traumatic stress in some relationship to the visits in the
[Paternal Grandparents’] home.” C.[R]. shared with Hood on a
number of occasions that “[the Paternal Grandparents] want [the
Children] to come live with them.” A.[R]. also shared with
Hood that the Paternal Grandparents wanted her to come live
with them, but that she preferred to live with Adoptive Father.
Ultimately, both Adoptive Father and the Paternal Grandparents
sought separately to adopt the [C]hildren. The [trial] court
granted Adoptive Father’s petition and he adopted them.
Sometime around March 2012, after Adoptive Father had
adopted the [C]hildren, Hood became concerned that visitation
with the Paternal Grandparents might involve “some other
situation that is continuing to keep the issue of his father having
killed his mother and his struggle about what that means in his
life active for [C.R.].” As a result, Hood opined that the
visitation arrangement with the Paternal Grandparents should be
modified, at least for a time. Specifically, she recommended that
for a period of at least six months, the [C]hildren should visit
with the Paternal Grandparents an hour or two every week or
every other week and that the visits should be supervised. Dr.
Crane believed that Hood’s recommendation “should be given a
lot of weight.”
In light of Hood’s recommendation, on June 22, 2012, Adoptive
Father filed a Petition For Extended Hearing For Modifying And
Supervising Grandparent Visitation.
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In re Guardianship of C.S., No. 79A02-1210-GU-863 (Ind. Ct. App. Aug. 5, 2013)
(internal citations omitted). Following a hearing on Adoptive Father’s petition
to modify, on October 1, 2012, the trial court entered extensive findings of fact
and conclusions of law denying the petition. The relevant findings of fact and
conclusions stated:
8) Shortly after the CHINS case was closed . . ., [Adoptive
Father] informed [the Paternal Grandparents] that they would
not be allowed their upcoming week night visit, nor would they
be allowed their visit the following weekend. While the
testimony is divided as to whether it was [Adoptive Father’s]
intent to eliminate all visits or significantly curtail the visits, it is
clear that, at a minimum, it was [Adoptive Father’s] intent to
greatly reduce the [Paternal Grandparents’] visitation time with
the children.
9) [Adoptive Father] has now filed with this court a motion to
reduce [the Paternal Grandparents’] visitation, this time [to] two
(2) hours per month, supervised in an agency setting.
10) [Adoptive Father] has raised his belief that [the Paternal
Grandparents] have facilitated contact between the children and
[Biological Father], as his reason for making this request.
****
CONCLUSIONS OF LAW
7) In applying the law to the facts in this case, this court finds
[Adoptive Father’s] decision to eliminate, or to allow only two
(2) hours per month of supervised visitation, to be unreasonable.
Therefore, [the Paternal Grandparents] have overcome the
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presumption that a fit parent’s decision regarding grandparent
visitation is best.
9) It is also clear that the [Paternal Grandparents] have had a
significant and ongoing relationship with [C.R.] and [A.R.] for
the entire lives of the [C]hildren. It is in the [C]hildren’s best
interests to continue their visitation with [the Paternal
Grandparents].
In re Guardianship of C.S., No. 79A02-1210-GU-863, at *3.
[5] Adoptive Father appealed (First Appeal). Adoptive Father argued that the trial
court’s judgment was erroneous as some of its findings were not supported by
the evidence. Upon review, we first concluded that the trial court had come to
the erroneous conclusion that Adoptive Father’s petition to modify visitation
was premised upon his own selfish desire to reduce contact between the
Children and the Paternal Grandparents. On this issue, we noted that Adoptive
Father’s petition to modify grandparent visitation, was based upon Hood’s
recommendation and was not driven by his personal interest. Secondly, we
found the trial court’s finding that Adoptive Father’s petition was instituted on
the belief that Paternal Grandparents had enabled some contact between the
Children and Biological Father was likewise erroneous. Specifically, we
concluded that although Adoptive Father believed that the Paternal
Grandparents were facilitating contact, that fact was not mentioned in his
petition. Lastly, we concluded that the trial court’s finding, stating that Father’s
petition requested a reduction of the grandparent visitation to two hours, was
equally erroneous. On this issue, we established that Father’s petition did not
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propose or request a specific visitation schedule. Instead, Adoptive Father had
requested the trial court to modify visitation in accordance with Hood’s
recommendation—i.e., that the new visitation arrangement should include only
supervised visitation and without any specification as to how long each visit
should last. Accordingly, we reversed the trial court’s order denying Adoptive
Father’s petition to modify grandparent visitation and remanded with the
following instructions:
It will be the trial court’s task upon remand to determine how
many times per week or month the Paternal Grandparents
should visit with the [Children] and how long each visit should
last. As indicated previously, whatever the frequency and
duration, the visitation must be supervised, and this schedule will
last for six months, after which Hood will evaluate the
[C]hildren’s therapeutic progress and fashion her
recommendation as to the future course of visitation,
accordingly.
In re Guardianship of C.S., No. 79A02-1210-GU-863, at *9.
[6] Following remand, Adoptive Father requested a change of venue and the
matter was transferred from Tippecanoe County Circuit Court to Carroll
County Circuit Court. On January 22, 2014, the Paternal Grandparents filed a
petition to resume visitation and for a visitation evaluation. Adoptive Father
filed his response and the trial court held a hearing on March 10, 2014. On
March 20, 2014, the trial court issued an order establishing a visitation schedule
that for a period of six months, visitation was to be supervised by professionals
employed by Child and Family Partners, Inc. in Lafayette, Indiana. The trial
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court awarded a total of twelve hours of visits per month with no more than six
hours per visit. Also, the trial court granted the Paternal Grandparents’ request
for a visitation evaluation.
[7] Thereafter, Adoptive Father filed his second notice of appeal (Second Appeal).
In In re Guardianship of C.R. & A.R., 22 N.E.3d 657, 661 (Ind. Ct. App. 2014),
we addressed Adoptive Father’s issue regarding the March 20, 2014 order
granting the Paternal Grandparents’ request for a visitation evaluation.
Adoptive Father contended that the Paternal Grandparents did not have any
basis to request a visitation evaluation, and the trial court did not have the
authority to order such an evaluation. We concluded that under the plain
language of Indiana Code section 31-17-2-12, “the trial court does not have the
authority to order [a child custody] evaluation in a visitation proceeding, absent
a request to do so from a parent or custodian.” Id. We therefore reversed the
sections of the trial court’s order concerning the visitation study.
[8] Visitation commenced on April 1, 2014, and the visits were supervised by
Debra Apple (Apple) of Child and Family Partners. Apple’s role was to
maintain the Children’s safety during the visits. With each visit, Apple allowed
C.R. to pick the room where visits would take place and she informed the
Children that they could alert with sounds and signals whenever they felt
uncomfortable. Apple supervised approximately seventy-two hours of visits
and she provided detailed reports after each visit. Apple was always within
hearing and visual reach during the visits. During the visits, the Paternal
Grandparents brought food, games, and belated holiday gifts with them. Also,
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because the Children’s birthdays fell during the visitation period, the Paternal
Grandparents brought birthday gifts. According to Apple, with almost each
visit, the Children hugged and kissed the Paternal Grandparents without
prompting, they were comfortable, and made expressions of love and
endearment. During the course of the visits, Apple once heard A.R. state that
she wished she could go to the Paternal Grandparents’ house, and C.R. agreed.
In another visit, C.R. told Grandmother that he was always happy spending
time with her and that God was number one is his life and Grandmother was
number two. Apple also observed the Children’s demeanor. She noted that,
routinely, the Children would “be very subdued and almost sad” when they
arrived at the facility for the visits; however, they would be very happy upon
seeing the Paternal Grandparents. (Tr. p. 226). Apple’s overall observation
was that the Children were closely bonded with the Paternal Grandparents.
The last visit occurred in September of 2014, and the Children were dismayed
by the fact that it would be the last time they visited with the Paternal
Grandparents. According to Apple, throughout the visits, she did not observe
any interaction between the Children and the Paternal Grandparents that gave
her any concern. Based on her observations, toward the end of the supervised
visits, Apple suggested that the supervised visits should be moved into the
Paternal Grandparents’ home. Apple pointed out that the Child and Family
Partners offices was a sterile environment to have visitations.
[9] In accordance with the March 20, 2014 order which required Hood to assess
the Children’s therapeutic progress and proffer her recommendation at the end
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of the six-month period, Hood issued her findings and recommendations on
March 26, 2015. Prior to issuing her report, Hood received Apple’s visitation
notes. Hood noted that
When visitation moved to a supervised setting, [C.R.]
maintained his confidence and school performance but showed
greater emotional disregulation. [C.R.] related in play therapy
that he preferred visiting in the supervised setting, as compared to
in the [Paternal Grandparents’] home. PTSD themes though
minimized re-occurred.
(Conf. Exh. D). With regard to Apple’s role as visitation supervisor, Hood was
of the opinion that Apple was biased. Specifically, Hood stated that Apple was
of the false impression that the Paternal Grandparents, and not the Children,
were her clients. Based on her findings, Hood recommended to appoint a new
visitation supervisor; and that visitation should be supervised and occur at least
four times a year for a period of four to six hours.
[10] On December 1, 7, and 16, 2016, the trial court held a status hearing to evaluate
the future course of the Paternal Grandparents’ visits. Hood testified that prior
to the First Appeal, when visitation was occurring in the Paternal
Grandparents’ home, C.R. was emotionally withdrawn: he had melt downs and
lacked confidence. Hood testified that C.R. showed PTSD symptoms which
were demonstrated repeatedly during play therapy sessions. It was Hood’s
opinion that when the visitation was suspended following our remand in the
First Appeal, from August of 2013 until April of 2014, C.R. demonstrated
increased confidence, diminished emotional distress, began sleeping well on his
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own, and enhanced his performance at school. Hood also reported that A.R. is
happy in Adoptive Father’s home. It was Hood’s opinion that there is an
obvious affection between Adoptive Father and the Children, and the Children
depend on Adoptive Father for nurturing, safety, and comfort.
[11] At the time of the status hearing, Hood’s frequency in meeting with the
Children had lessened to approximately once every five weeks for C.R. and
even less often for A.R. primarily due to their progress and adjustment. In
2015, Hood met with C.R. a total of eight times. Hood testified that C.R. has
developed into a well-adjusted child who is getting straight A’s in school, sleeps
in his own bed, attends Boy Scouts, and has friends. With respect to Apple’s
request, Hood rejected the idea of moving visitations from the facility to the
Paternal Grandparents’ home. At the close of her testimony, Hood
recommended the appointment of a different visitation supervisor and
preservation of supervised visits to occur at least four times a year for about four
to six hours. Hood’s status report of March 26, 2015, did not set an end-date to
the quarterly supervised visits that she had proposed; however, at trial, she
advised that these supervised visits should perhaps remain until C.R. entered
his teenage years “where he could [] speak about his own adjustment and his
own needs.” (Tr. p. 68). At the time of the hearing, C.R. was eleven years old
and A.R. was eight years old.
[12] While the First Appeal was pending, in 2013, Hood referred C.R. to Dr. Jane
Yipp (Dr. Yipp), a neuro scientist and a visiting professor at Purdue University,
to undergo brain mapping. Hood believed that Dr. Yipp would aid her with
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additional information other than what she had established in her play therapy
sessions with C.R. Dr. Yipp testified that she conducted a review of C.R.’s
brain activity and brain circuit connectivity. Five tests were conducted in 2013
and a single test in 2015. Dr. Yipp stated that she tracked C.R.’s results and
compared them with a statistical data base of individuals that are considered
“normal.”. (Tr. p. 81). Dr. Yipp described the process as completely automated
and was similar to a blood or urine test. Dr. Yipp testified to at least 10,000
peer reviewed articles supporting this sort of testing. Dr. Yipp explained C.R.’s
brain mapping results after visiting with the Paternal Grandparents as showing
brain activity that is outside the normal range to the point of concern. On the
other hand, the one test conducted in 2015, when C.R. was not visiting with the
Paternal Grandparents, the results showed significant normalization of the
brain map.
[13] Following Dr. Yipp’s testimony, Dr. Tracy Gunter (Dr. Gunter), an associate
professor for clinical psychiatry and professor of law at Indiana University,
testified as an expert witness for the Paternal Grandparents. Dr. Gunter
specified that the equipment that Dr. Yipp used for the brain mapping was not
FDA approved for providing a diagnoses, and further reported that there were
no peer reviewed studies to support her study. Dr. Gunter was of the opinion
that if there were concerns with C.R.’s stress levels while visiting with the
Paternal Grandparents, then the Paternal Grandparents should have been
present during the testing. In addition, Dr. Gunter opined that the stress
exhibited by C.R. was not necessarily a bad thing. Dr. Gunter concluded that
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Dr. Yipp’s brain mapping tests had not achieved any degree of acceptance in
the relevant scientific community and her reports were of no benefit to the trial
court in determining the visitation.
[14] C.R.’s psychiatrist, Dr. Crane, also testified. Dr. Crane, who was seventy-eight
years old, stated that he had seen C.R. intermittently over the past five years
and estimated he had nearly forty sessions with C.R. Dr. Crane indicated that
his appointments with C.R. had been less frequent in the last few years, and in
2015, he saw C.R. on two occasions. At the status hearing, Dr. Crane rejected
the idea that a child may suffer from PTSD. Following Dr. Crane’s testimony,
Adoptive Father called Dr. Crane’s wife. Dr. Crane’s wife stated that five years
ago, Dr. Crane was examined by a neurologist for early signs of dementia. Dr.
Crane’s wife added that in the past six months, Dr. Crane had limited ability,
on occasion, to piece his thoughts together. Dr. Crane’s wife stated that when
Dr. Crane testified on December 1, 2015, there was some confusion with his
testimony—i.e., Dr. Crane was asked how long he had practiced as a physician
or an attorney, and he stated those were hard questions. In addition, Dr.
Crane’s wife testified that following Dr. Crane’s reversal of C.R.’s PTSD
diagnosis, “there was weeping that occurred when he was confronted with the
report[,] he began speaking of some of the men or veterans in Vietnam and the
content changed from [C.R.].” (Tr. p. 264). In conclusion, Dr. Crane’s wife
indicated that her husband exhibited early signs of dementia.
[15] At the close of the evidence, the trial court instructed the parties to file their
proposed findings of fact and legal conclusions. On February 16, 2016, the trial
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court entered its Order stating, in part, that the Paternal Grandparents had
overcome the presumption that Adoptive Father’s decision to limit their
visitation was in the Children’s best interest. As such, the trial court concluded
that Hood’s proposal that Paternal Grandparents’ visitation should be limited to
quarterly supervised visits by a new agency for an indefinite period of time was
unreasonable; and Adoptive Father’s decision to rely on Hood’s commendation
was likewise unreasonable. Thus, the trial court ordered the reestablishment of
unsupervised visitation of “every other weekend from 10:00 a.m. Saturday to
6:00 p.m. Sunday.” (Amended Appellant’s App. Vol II, p. 47). In addition, the
trial court granted the Paternal Grandparents “two (2) weeks of uninterrupted
parenting time each summer.” (Amended Appellant’s App. Vol II, p. 47).
[16] Adoptive Father appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Standard of Review
[17] In determining matters of family law, we accord “substantial deference” to the
decisions of the trial court. In re Visitation of L-A.D.W., 38 N.E.3d 993, 997,
(Ind. 2015). Pursuant to Indiana Code section 31-17-5-6, the trial court
supported its Order for grandparent visitation with specific findings of fact and
conclusions thereon. As such, on appeal, our court applies the well-established,
two-tiered Indiana Trial Rule 52 standard of review: first, we consider whether
the evidence supports the trial court’s findings; second, we determine whether
the findings support the judgment. In re Visitation of H.B., 21 N.E.3d 867, 870
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(Ind. Ct. App. 2014) (quoting In re visitation of M.L.B., 983 N.E.2d 583, 585
(Ind. 2013)). We “shall not set aside the findings or judgment unless clearly
erroneous, and due regard shall be given to the opportunity of the trial court to
judge the credibility of the witnesses.” Ind. Trial Rule 52(A). We will find
clear error if “there is no evidence supporting the findings or the findings fail to
support the judgment [,]” or if the trial court “applies the wrong legal standard
to properly found facts.” K.I. ex rel. J.I. v. J.H., 903 N.E.2d 453, 457 (Ind. 2009).
II. Grandparent Visitation
[18] Grandparents “do not have the legal rights or obligations of parents,” and “do
not possess a constitutional liberty interest in visitation with their
grandchildren.” Swartz v. Swartz, 720 N.E.2d 1219, 1221-22 (Ind. Ct. App.
1999). On the other hand, parents do have a “constitutionally recognized
fundamental right to control the upbringing, education, and religious training of
their children.” Id.; see also Troxel v. Granville, 530 U.S. 57, 65-66, (2000).
However, our legislature has enacted the Grandparent Visitation Act (Act), Ind.
Code § 31-17-5-1, recognizing that “a child’s best interest is often served by
developing and maintaining contact with his or her grandparents.” Swartz, 720
N.E.2d at 1221; see Troxel, 530 U.S. at 63-64 (discussing rationale for protecting
relationship between grandparent and child). Accordingly, Indiana Code
section 31-17-5-1 constitutes a balance between “the rights of parents to raise
their children as they see fit and the rights of grandparents to participate in the
lives of their grandchildren.” Id.
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[19] Under the Act, a trial court may grant visitation rights if it determines that
“visitation rights are in the best interest of the child.” I.C. § 31-17-5-2. This
determination is a matter for the trial court’s discretion, and we will reverse
only upon a showing of an abuse of that discretion. Swartz, 720 N.E.2d at
1221. An abuse of discretion exists where the trial court’s decision is clearly
against the logic and effects of the facts and circumstances before the trial court
or the reasonable, probable deductions to be drawn therefrom. Id. We will
neither reweigh the evidence nor judge the credibility of the witnesses. Id.
[20] We note that grandparent visitation must be balanced with the fact that the
“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.” Id. at 586. To
protect this fundamental right, our supreme court has mandated that a trial
court’s order on grandparent visitation must address the following four 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
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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. Moreover, “the Grandparent Visitation Act contemplates only occasional,
temporary visitation that does not substantially infringe on a parent’s
fundamental right” to direct his or her child’s upbringing. Id. at 588.
[21] In the instant case, after our remand in the First Appeal, there is no dispute that
the trial court followed our instructions and ordered supervised visitation. In its
visitation order of March 20, 2015, the trial court directed that the supervised
visits should run for six months and Hood to proffer her recommendations
thereafter. In a three-day evidentiary hearing in December 2015, the trial court
heard testimonies of the parties and then on February 16, 2016, the trial court
issued its Order stating, in part,
41. The court finds that [Dr.] Yipp’s brain mapping tests are not
based on generally accepted scientific principles and that the tests
were not concluded in a way that could yield valid results. The
[c]ourt disregards the testimony and the findings of [Dr.] Yipp
entirely.
42. The [c]ourt finds that [Dr.] Crane no longer adheres to a
diagnosis of PTSD for [C.R.] and therefore Hood’s continued
diagnosis of PTSD lacks medical basis. Dr. Crane’s dementia
makes his supervision of Hood unreliable with respect to the
specific questions whether Hood’s current recommendation is
valid.
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43. The [c]ourt finds that the recommendation of Hood reflect[s]
bias. An unbiased therapist would have allowed Apple to
observe visitation in the [Paternal Grandparents’] home to
determine whether visitation in that venue was causing stress to
[C.R.]. The refusal to proceed with that examination reflect[s] a
bias. The recommendation that supervised visits continue
indefinitely reflect a bias.
****
CONCLUSIONS OF LAW
****
2. The [] [Paternal Grandparents] have overcome the
presumption that [Adoptive Father’s] decision to limit their
visitation is in the best interest of the [Children] by clear and
convincing evidence.
3. [] Hood’s recommendation that grandparent visitation be
limited to quarterly visits supervised by a new agency for
indefinite period of time is unreasonable and lacks reasonable
basis.
4. [Adoptive Father’s] decision to accept recommendation of []
Hood is unreasonable.
5. It is in the [C]hildren’s best interest to resume unsupervised
visitation with the [Paternal Grandparents].
6. The [Paternal Grandparents] shall have unsupervised
visitation every other weekend from 10:00 a.m. Saturday to 6:00
p.m. Sunday.
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7. The [Paternal Grandparents] shall have two (2) weeks of
uninterrupted parenting time each summer. Written notice of the
dates of parenting time shall be given to [Adoptive Father] at
least ninety (90) days in advance.
(Amended Appellant’s App. Vol II, pp. 45-46). On appeal, Adoptive Father
raises two main contentions: (1) the trial court’s findings and conclusions
relating to Hood’s recommendation is unsupported by the evidence; and (2) the
trial court’s finding concerning Dr. Crane is facially contradictory and
unsupported by the evidence.
A. Hood’s Recommendation
[22] Finding #43 of the February 16, 2016 Order stated that Hood’s
recommendation was biased, since an unbiased therapist would have allowed
Apple to observe visitation in the Paternal Grandparents’ home in order to
determine whether visitation in that venue was causing stress to C.R. The trial
court further stated that Hood’s proposal that supervised visits should continue
indefinitely was also prejudiced.
[23] In his appellate brief, Adoptive Father contends that Apple had no therapeutic
relationship with the Children, and Hood’s rejection of Apple’s request is not a
reflection of bias. Adoptive Father first points out that Apple was not the
Children’s therapist and was therefore not in a positon to make pertinent
recommendations with regard to visitation. Further, Adoptive Father contends
that “Apple did not have the history of the case, had not had significant or long
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lasting contact with the [C]hildren, and functioned solely as a supervisor for the
[Paternal Grandparents’] visits.” (Appellant’s Br. p. 17).
[24] At the status hearing in December 2015, Apple stated that she has a Master’s of
Science in guidance and counseling with an emphasis on community
counseling. Apple testified that her primary role in the instant case was to
maintain the safety of the Children during the visits. Apple indicated that she
was familiar with the background of the case. Specifically, Apple testified that
toward the beginning of her appointment as a visitation supervisor, Hood called
her and indicated that she wanted her to have “all the appropriate information”
regarding the case. (Tr. p. 224). Apple stated that Hood thereafter sent an
email of “some drawing that [C.R.] had created in therapy,” and accompanying
information with respect to that diagram was offered via telephone. (Tr. p.
224). When Apple was questioned as to why she advised that the visits be
relocated to the Paternal Grandparents’ home, she explained that after
“speaking with [] Hood,” she highlighted that she did not observe “anything of
concern,” and that Child and Family and Partners was a “very sterile
environment” to have visitations. (Tr. pp. 235-36). Apple further explained
that her proposal was based on Hood’s previous concern “that something was
occurring in the home” therefore causing stress for C.R. (Tr. p. 236). At the
close of her testimony, and over Adoptive Father’s objection, Apple stated that
she would recommend future unsupervised visitations to occur at least twice
monthly “for these parents and it could be weekends.” (Tr. p. 240). Apple
testified that her endorsement took into consideration the importance of the
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Children having a “meaningful relationship” with the Paternal Grandparents.
(Tr. p. 241). During cross-examination, Apple was again asked about her
contextual knowledge regarding the case. Apple testified she was unaware of
the date when biological mother was killed, or whether C.R. observed it. Apple
indicated that “I do not know all of the specifics, I know the generalities of
what happened in this case and how it opened. I didn’t profess to be an expert
on the history.” (Tr. p. 242). In addition, Apple testified that she had not
reviewed any of Hood’s or Dr. Crane’s reports regarding the Children, and had
only gone through “a few court orders;” however, she could not recall the
specific orders she had read. (Tr. p. 243).
[25] The record shows that Hood has been the Children’s therapist since June of
2009 after biological mother’s murder. Hood has a Bachelor’s Degree in social
work, a Master’s of Science with an emphasis in marriage and family therapy,
and twenty-six years of experience in the area of abuse and neglect for children
and families of trauma. Hood testified that she had “a large body of
information from [her] own relationship and interaction with the [C]hildren in
hours of therapy.” (Tr. p. 47). Hood stated that in recommending future
supervised visits, she took into account various factors: First, she highlighted
C.R.’s past PTSD symptoms while visiting with the Paternal Grandparents; the
fact that C.R.’s PTSD symptoms had greatly narrowed during the period of
supervised visitation; and that C.R.’s PTSD symptoms were nonexistent when
the visits were not taking place. Accordingly, Hood stated that in balancing
those factors and based on the importance of ensuring that C.R. had a “life that
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is free from the former symptoms,” future supervised visitations were vital. (Tr.
p. 25). When asked as to why she disregarded Apple’s proposal to move the
supervised visits from the facility to the Paternal Grandparents’ home, Hood
testified that
[I] questioned the validity of her conclusions based on the fact
that I think her observations were in a very narrow context. She
had no history of a case, was not interested in gathering history
of the case from me and I think that [she] was basing her
recommendations simply on what she saw and not on a larger
context of information that was available. This case had gone on
for many years before it got to [] Apple and I didn’t believe that it
was appropriate for a recommendation to be made based on
observations of visitation and limited setting as well as []Apple
had specifically emphasized to me that her clients in this
situation were not the [C]hildren but her clients were the
[Paternal Grandparents]. I found that to be rather odd and also
suggest[ed] some bias towards the [Paternal Grandparents] best
interest as opposed to the [C]hildren’s best interest.
(Tr. pp. 52-53).
[26] We observe that our instructions on remand in the First Appeal was that the
Paternal Grandparents’ visitation would be supervised and last for six months.
The trial court’s March 2014 visitation order clarified that visitation would be
overseen in an agency setting and Hood should offer her recommendations
thereafter. From the record, it appears that Apple and Hood had comparable
educational backgrounds and both were qualified therapists. However, the
March 2014 visitation order set their roles apart. The trial court appointed
Child and Family Partners to supervise the visitation sessions. Hood remained
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as the Children’s therapist and her role was to tender her recommendation after
the six months of supervised visits. Based on the March 2014 visitation order,
Apple, having a supervisory role, overstepped her mandate by suggesting that
the visits should be moved to the Paternal Grandparents’ home. Moreover, as
we noted in the foregoing, Hood’s rejection of Apple’s proposal was based on
some genuine concerns, i.e., the fact that Apple’s recommendation was based
on a very narrow context, Apple had limited background information, and
because Apple viewed the Paternal Grandparents as her clients.
[27] In light of the foregoing, we conclude that Finding #43, stating, in part, that
Hood’s denial of Apple’s request showed bias, is unsupported by the evidence.
Hood’s focus in the instant case had been to provide therapeutic support to the
Children. In the First Appeal, we valued Hood’s role as the Children’s
therapist. We noted Hood’s concern of C.R.’s heightened stress levels when he
visited with the Paternal Grandparents. Notably, part of the reason we
remanded was because the “evidence showed that something in relation to
those visits was, as Hood phrased it, stirring up C.[R].” In re Guardianship of
C.S., No. 79A02-1210-GU-863, at *9. Remarkably, in the most recent order of
February 16, 2016, the trial court even credited Hood’s therapy sessions and it
specified in Finding # 44 that C.R.’s progress from “wildcat to well-adjusted,
normally developed child” was partly attributed by Hood’s therapy. (Amended
Appellant’s App. p. 46). At the grandparent visitation status hearing in
December 2015, Hood stated, “I do have bias and it is for the best interests of
[C.R.]. Now in saying that it’s important to be objective and my bias is not
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toward what [Adoptive Father] thinks is best or what [the Paternal
Grandparents] think is best but towards what therapeutically appears to be best
for . . . [C.R.]” (Tr. p. 60). More significantly is that the visitation order of
March 2014 mandated Hood to offer her commendation after the six months of
supervised visits. Apple’s role was specifically limited to a supervisory role and
her recommendation on whether the visits should be moved to the Paternal
Grandparents’ home or how future visitations should proceed, was out-of-place.
[28] That said, we also address the trial court’s Conclusion #3 stating that Hood’s
recommendation that visitation should be supervised four times a year for an
indefinite period of time was unreasonable. Adoptive Father challenges this
conclusion stating that it is erroneous and we agree. Hood’s status report dated
March 26, 2015, undeniably did not propose an end-date for the future
supervised visits; however, at the status hearing, she advised that these
supervised visits should possibly remain until C.R. entered his teen years
“where he could [] speak about his own adjustment and his own needs.” (Tr. p.
68). Because Hood did give an end-date to the proposed supervised quarterly
visits, we conclude that the trial court’s conclusion is erroneous in this respect.
[29] Consequently, we find Conclusion #4 is equally erroneous and unsupported by
the evidence. As noted, the trial court concluded that Adoptive Father was
unreasonable on relying on Hood’s recommendation of future supervised visits.
As discussed above, we concluded that Hood’s recommendation on future
supervised visits was reasonable because it was based on the Children’s
therapeutic needs, the fact that Apple was not aware of all the background
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information, and because Apple viewed the Paternal Grandparents as her
clients.
[30] Moreover, we find that Adoptive Father had some sincere reservations. At the
status hearing in December 2015, Adoptive Father stated that when visitation
was not taking place between August of 2013 and April of 2014, C.R.
“recovered remarkably. [C.R.] went from a child that had trouble dealing with
things to a normal child that wanted to do more things, expressed more things
and became a happy child.” (Tr. p. 138). Adoptive Father added that during
the six months of supervised visitation, C.R. “became more irritated . . . [,]short
tempered[,] and could not handle small problems so to speak.” (Tr. p. 134).
When asked if he concurred with Hood’s recommendation of future quarterly
supervised visits, Adoptive Father reiterated Hood’s statement that the Children
were well bonded with the Paternal Grandparents and that “there should be
some contact.” (Tr. p. 142). Based on our conclusion that Hood’s
recommendation was reasonable, and coupled with Adoptive Father’s
legitimate concern that C.R. was exhibiting problems following the six months
of supervised visitation, we hold that the trial court’s conclusion that Father
was unreasonable in relying on Hood’s recommendation is unsupported by the
evidence and therefore erroneous.
B. Dr. Crane’s Diagnosis of C.R.’s PTSD Symptoms
[31] Next, we address Adoptive Father’s contention that the trial court’s findings
regarding Dr. Crane are inconsistent and not supported by the evidence.
Finding #42 of the trial court’s order stated in its first sentence that Dr. Crane
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no longer adheres to C.R.’s PTSD diagnosis and therefore, Hood’s continued
diagnosis of PTSD lacked medical basis. In its second sentence, the trial court
noted that Dr. Crane’s dementia makes his supervision of Hood unreliable with
regard to whether Hood’s current recommendation is valid. Adoptive Father
argues that this finding is erroneous because (1) Dr. Crane originally approved
Hood’s recommendation with regards to C.R.’s PTSD diagnosis; and (2) the
trial court’s statement that Dr. Crane suffers from dementia but also giving
significant weight to his testimony with respect to his nullification of C.R.’s
former PTSD diagnosis, is an unclear and inconsistent statement.
[32] At the grandparent visitation status hearing in December 2015, Hood testified
that she continued to see the Children for therapy while the supervised visits
were ongoing. Hood stated that C.R. showed noticeable reduction in his PTSD
symptoms during the period of supervised visitation and continued
improvement was exhibited when visitation did not occur. Hood indicated
that, presently, C.R. is a well-adjusted child who is getting straight A’s in
school, and his anxiety was much lower during the period of supervised visits,
and nonexistent when he was not visiting with the Paternal Grandparents.
Ultimately, Hood’s recommendation was that, going forward, visitation should
be supervised on a quarterly basis so as to “allow C.R. [to] have a life that is
free from the former symptoms that he experienced.” (Tr. p. 25).
[33] Notably, during her direct examination, Hood testified that she is not qualified
to issue a PTSD diagnosis, however, as a licensed medical and family therapist,
she is “qualified to suggest a diagnosis which is confirmed by a psychiatrist.”
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(Tr. p. 39). The record shows that shortly after biological mother’s murder in
2009, Hood was appointed by the trial court to work therapeutically with the
Children. Hood indicated that she discussed the case frequently with Dr.
Annamis, the psychiatrist supervisor at the Indiana Center for Children and
Families. Hood testified that Dr. Annamis was responsible for reviewing
“treatment plans as well as our diagnosis.” (Tr. p. 11). From the record, it
appears that Dr. Annamis was involved at the initial stages, i.e., sometime
between 2009 and 2010 after which she had no further involvement. Between
2009 and 2010, Hood saw the Children for therapy, and after several sessions of
play therapy, Hood diagnosed C.R. with PTSD. In December 2010, Hood was
asked to engage the services of another psychiatrist, in this case, Dr. Crane. Dr.
Crane reviewed the materials that Hood had sent him in relation to her therapy
with the Children and conducted several assessments. Dr. Crane confirmed
Hood’s recommendation of C.R.’s PTSD symptoms.
[34] An integral issue in the First Appeal was whether C.R. suffered from PTSD. At
the hearing of Adoptive Father’s first petition to modify grandparent visitation,
Dr. Crane established that he agreed with Hood’s diagnosis of C.R.’s PTSD. In
the First Appeal, we valued Hood’s recommendation mainly due to Dr. Crane’s
endorsement and we partly determined that the trial court’s order was
erroneous because the evidence from the therapists, including Hood, confirmed
C.R.’s PTSD symptoms, and those symptoms were heightened when C.R. was
visiting with the Paternal Grandparents.
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[35] Also, we agree with Adoptive Father’s contention that Finding #42 is
inconsistent and unclear in the following respects: In the first portion of that
finding, the trial court stated that Dr. Crane no longer adhered to C.R.
diagnosis of PTSD; however, in the second portion of that finding, it
discredited Dr. Crane’s supervision of Hood’s recommendation based on his
dementia. It seems as if the trial court credited Dr. Crane’s repudiation of
C.R.’s PTSD diagnosis; nonetheless, failed to give weight to his testimony
based on his dementia. The conflicting nature of the two statements makes the
clarity of this finding difficult. Moreover, we find that the last portion of
Finding #42 inferring that Dr. Crane was responsible for supervising Hood’s
current recommendation, incorrect. Hood testified at the grandparent visitation
status hearing in December 2015 that she needed a psychiatrist to approve any
of her PTSD diagnoses. In the First Appeal, Hood’s PTSD diagnosis of C.R.
was endorsed by Dr. Annamis, and Dr. Crane. It was Hood’s testimony at the
status hearing that supervised visits were imperative so as to maintain the
Children’s overall progress. She noted that future supervised visits would also
ensure that C.R. had a life that was free from former PTSD symptoms. Here, we
find that it was not necessary for Hood’s current recommendation, absent a
PTSD diagnosis, to be endorsed by a psychiatrist. Her recommendation was
simply based on the best interest of the child. As such, the trial court’s
suggestion that Dr. Crane was essential in endorsing Hood’s current
recommendation is an incorrect statement. Given the erroneous issues we have
identified in this finding, we lack confidence in the accuracy of the judgment.
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III. Remedy on Remand.
[36] Based on our discussion, we have concluded that certain significant findings of
the trial court were not supported by the evidence, and that significant
conclusions were entered based upon those erroneous findings. Specifically, we
have determined that Hood’s decision to reject Apple’s request of moving
supervised visits to the Paternal Grandparents’ home was not biased. On this
issue, we established that Hood’s refusal was founded on authentic concerns,
i.e., Apple’s recommendation was based on a very narrow context, Apple had
limited background information regarding the case, and because Apple viewed
the Paternal Grandparents as her clients. Moreover, we noted that the March
2014 visitation order restricted visitation in agency setting and Apple’s role was
limited to supervising those visits. Accordingly, we established that Apple
exceeded her mandate by suggesting how visits should proceed. Also, we
determined that Hood’s recommendation of supervised visits had a proposed
end-date, i.e., Hood stated that supervised visits should perhaps remain until
C.R. entered his teenage years “where he could [] speak about his own
adjustment and his own needs.” (Tr. p. 68). In addition, we determined
Father’s reliance on Hood’s recommendation was reasonable. With respect to
the finding regarding Dr. Crane, we found that finding conflicting in some
respects—the trial court assigned more weight to Dr. Crane’s repudiation of
C.R.’s former PTSD diagnosis while at the same time discrediting his testimony
with respect to his dementia. Finally, we determined that it was not necessary
for Hood’s current recommendation of future quarterly supervised visitations,
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absent a PTSD diagnosis, to be endorsed Dr. Crane. Accordingly, we reverse
the trial court’s order based on the fact that those erroneous findings and
conclusions go to the very heart of the matter and form a substantial portion of
the trial court’s judgment.
[37] As we set out above, in the First Appeal, we determined that there was
something stirring up C.R. when he visited with the Paternal Grandparents. In
light of that, on remand, we directed supervised visits lasting six months. Hood
was to fashion her recommendation following the six months of visitation.
Again, the main contested issue is the future course of the Paternal
Grandparents’ visitation following the six-month period. At the grandparent
visitation status hearing in December 2015, Adoptive Father introduced
substantial evidence relating to C.R.’s former PTSD diagnosis, how those
symptoms were exacerbated when C.R. visited with the Paternal Grandparents;
how C.R. was alleviated from those symptoms when visitation was not
occurring between August 2013 and April 2014; and the recurrence of those
PTSD symptoms during the six-months of supervised visits. Hood also gave
her therapeutic opinion regarding C.R.’s PTSD symptoms since 2009. Hood
testified that in order to dispel all future concerns on the relapse of C.R.’s
former PTSD symptoms, it was in C.R.’s best interest that future visits, at best
be supervised four times a year.
[38] Having determined that the trial court’s order is defective, we must now
determine the appropriate remedy. We have previously concluded that an
appropriate remedy on remand is entry of new findings and conclusions based
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upon the existing record. See In re Guardianship of A.L.C., 902 N.E.2d 343, 359-
60 (Ind. Ct. App. 2009) (remanding for “more specific findings and
conclusions,” but “without a hearing.”). Given the evidence before us, we hold
that the trial court’s order granting unsupervised visits to the Paternal
Grandparents did not overcome Adoptive Father’s fit decision to limit visitation
based on Hood’s recommendation. See McCune, 783 N.E.2d at 759.
Accordingly, we remand to the trial court for entry of new findings and legal
conclusions consistent with this opinion.
CONCLUSION
[39] In sum, we remand this case to the trial court for new findings and conclusions
without hearing new evidence.
[40] Reversed.
[41] Bailey, J. and Barnes, J. concur
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