In the Matter of the Guardianship of Zachary Johnson: Adam D. Johnson v. Sarah Oswalt (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 10 2018, 9:19 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 ATTORNEYS FOR APPELLEE
Robert Owen Vegeler Douglas E. Johnston
Vegeler Law Office LLC Angelica N. Fuelling
Fort Wayne, Indiana Tourkow, Crell, Rosenblatt &
Johnston, LLP
Fort Wayne, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the December 10, 2018
Guardianship of Zachary Court of Appeals Case No.
Johnson: 18A-GU-816
Adam D. Johnson, Appeal from the
Allen Superior Court
Appellant-Respondent,
The Honorable
v. Phillip E. Houk, Magistrate
Trial Court Cause No.
Sarah Oswalt, 02D09-1412-GU-242
Appellee-Petitioner.
Kirsch, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-GU-816 | December 10, 2018 Page 1 of 8
[1] Adam D. Johnson (“Adam”) appeals the trial court’s order that removed him
as guardian for his adult son, Zachary Johnson (“Zach”), and that appointed
Sarah Oswalt (“Sarah”), Zach’s mother, as Zach’s successor guardian. Adam
raises the following issue: whether the trial court abused its discretion in
terminating his role as guardian and appointing Sarah as permanent successor
guardian.
[2] We affirm.
Facts and Procedural History
[3] Zach is unable to manage his personal and financial affairs because he suffers
from Autism Spectrum Disorder, depression, anxiety, ADHD, and Smith
Lemli Opitz Syndrome. Tr. Vol. 2 at 41, 52-53; Appellant’s App. Vol. 2 at 16.
Zach turned eighteen years of age in December of 2014, so in May of 2015,
Adam and Sarah agreed that Adam would serve as Zach’s guardian. Id. at 19-
23.
[4] Sarah later wanted to increase her parenting time, so in February of 2016, she
filed a motion to modify parenting time. Id. at 24. The trial court ordered
mediation, but before mediation could begin, Adam moved with Zach to North
Carolina. Tr. Vol. 2 at 56. Adam neither consulted Sarah about the move, nor
sought or received permission from the trial court for the move. Id. at 56, 129.
Adam’s move to North Carolina hindered Sarah’s efforts to communicate with
Zach. Id. at 57. In the nearly one year that Zach was in North Carolina, Adam
did not procure services for Zach. Id. at 97, 125, 130-31.
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[5] On March 2, 2017, Sarah filed a verified petition to remove Adam as guardian.
Appellant’s App. Vol. 2 at 6, 26-27. The trial court issued an interim order
requiring Adam to facilitate contact between Sarah and Zach. Id. at 28- 30. It
also ordered Adam and Sarah to coordinate an Indiana Trial Rule 35
evaluation of Zach and reschedule mediation, which the trial court said could
be conducted by telephone. Id. at 29.
[6] Adam failed to have Zach evaluated as directed by the trial court and did not
participate in any mediation sessions. Tr. Vol. 2 at 130-31. He also did not
allow Sarah to visit Zach. Id. at 124-25. Therefore, Sarah filed a motion for
immediate temporary change of guardianship, which the trial court heard on an
emergency basis without Adam attending the hearing. Appellant’s App. Vol. 2 at
9; 31-33. Citing Adam’s disregard for its orders, the trial court suspended
Adam’s authority as guardian and appointed Sarah as temporary guardian. Id.
at 34-35. Specifically, the trial court found that “[Adam’s] conduct in ignoring
the court’s orders and preventing the mother/son relationship from advancing
is directly and adversely affecting the best interests of [Zach] and causing
immediate and substantial injury to him.” Id.
[7] Sarah then travelled to North Carolina to bring Zach back to Indiana. Tr. Vol. 2
at 57. Because Zach had not received services for nearly one year, Sarah
immediately tried to coordinate services for Zach, even as she was driving back
to Indiana. Id. at 58. She eventually arranged services with Todd Clark
(“Clark”), a behavioral therapist, and Taylor Hartsock (“Hartsock”), a day
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program supervisor at Passages Incorporated, a not-for-profit organization that
serves individuals with developmental disabilities. Id. at 8; 18-20.
[8] Once back in Indiana, Sarah made sure that Zach immediately received
medical and dental care. Id. at 62-64. Further, she made efforts to maintain a
positive relationship between Zach and Adam by arranging visits and regular
communication through text messaging. Id. at 64.
[9] At the hearing on Sarah’s verified petition to remove Adam as guardian and
appoint her as successor guardian, Clark, Hartsock, and Michael Setlak
(“Setlak”), Zach’s guardian ad litem, testified about Sarah’s efforts to obtain
services for Zach, the appropriateness of her home, her qualities as a parent, her
efforts to maintain a relationship between Zach and Adam, and whether it was
in Zach’s best interests for her to become Zach’s permanent guardian. For
instance, when Clark was asked about Sarah’s interaction with Zach, he
testified that she was “[e]xcellent... she was very on the ball it seemed to me.”
Id. at 10. Clark also testified that Sarah was an excellent parent: “she would be
in the top of the parents I have met, honestly.” Id. Clark had no concerns
about Sarah’s small home1 or Zach’s interactions with his siblings. Id. at 11, 17.
Hartsock’s testimony about Sarah was also positive. Hartsock said that Sarah
1
The residence is about 1100 square feet and houses four people (five people when Sarah’s boyfriend spends
the night) and six pets. Tr. Vol 2 at 71, 76-77.
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was “very involved” in the intake process and that “she kept in communication
[and was] very pleasant.” Id. at 20.
[10] Donovan Martin (“Martin”), a licensed mental health counselor, also testified,
stating that his testing of Sarah had shown that reunifying her with Zach was
appropriate. Id. at 33-34. Martin also attested to Sarah’s ability to procure
appropriate services for Zach, stating that she was able to obtain services “faster
than I have seen a lot of people do it.” Id. at 42. Setlak also praised Sarah’s
ability to arrange services for Zach, testifying that Sarah did more in the
preceding four or five months to procure services for Zach than Adam had done
over a fifteen-month period. Id. at 140. When asked about the possibility of
letting Adam resume his role as guardian, Setlak worried that Adam would
once again cut off contact between Zach and Sarah. Id. at 140-41. Thus, Setlak
recommended that the trial court appoint Sarah as Zach’s permanent guardian.
Id. at 144.
[11] In its final order addressing Sarah’s verified petition to remove Adam as Zach’s
guardian and appoint her as successor guardian, the trial court found and
ordered as follows:
3. [Sarah], in a relatively short time, has procured services and
implemented a broad strategy to assist in [Zach’s] development
and increasing [Zach’s] self-reliance. The continued utilization
of these services and implementation of this strategy is in
[Zach’s] best interests.
4. [Sarah] has demonstrated a high degree of cooperation
regarding [Zach’s] visitation with . . . [Adam].
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Therefore, the Court discharges [Adam] as Guardian and
appoints [Sarah] to serve as the Successor Guardian of [Zach].
Appellant’s App. Vol. 2 at 14-15. Adam now appeals.
Discussion and Decision
A trial court is vested with discretion in making determinations
as to the guardianship of an incapacitated person. See Ind. Code §
29-3-2-4; In re Guardianship of Atkins, 868 N.E.2d 878, 883 (Ind.
Ct. App. 2007), trans. denied. This discretion extends to both its
findings and its order. [In re] Atkins, 868 N.E.2d at 883. Thus,
we apply the abuse-of-discretion standard to review the trial
court’s findings and order. Id. An abuse of discretion occurs
when the trial court’s decision is clearly against the logic and
effect of the facts and circumstances presented. Id.
In re Guardianship of Morris, 56 N.E.3d 719, 723 (Ind. Ct. App. 2016).
[12] “The trial court’s paramount consideration in making its determination of the
person to be appointed guardian is the best interest of the incapacitated person.”
In re Atkins, 868 N.E.2d at 883. A court “may remove a guardian on its own
motion or on petition of the protected person or any person interested in the
guardianship, after notice and hearing, on the same grounds and in the same
manner as is provided under [Indiana Code section] 29-1-10-6 for the removal
of a personal representative.” Ind. Code § 29-3-12-4(a). These grounds include
the failure “to perform any duty imposed by law or by any lawful order of the
court, or [if the guardian] has ceased to be domiciled in Indiana.” Ind. Code §
29-1-10-6(b). With the approval of the trial court, a guardian may “change the
physical presence of the protected person to another place in Indiana or to
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another state if the court finds that such a change is in the best interests of the
protected person.” Ind. Code § 29-3-9-2.
[13] Here, the trial court did not abuse its discretion in removing Adam as Zach’s
guardian as Adam defied court orders, undermined Sarah’s relationship with
Zach, and failed to perform duties imposed by law. Specifically, Adam defied
the trial court’s orders to 1) participate in mediation, 2) facilitate visits between
Zach and Sarah, 3) obtain a Trial Rule 35 evaluation of Zach and 4) procure
services for Zach. See Tr. Vol. 2 at 57, 97, 124-25, 130-31. Adam violated the
law when he moved with Zach to North Carolina without first seeking
permission from the trial court. Id. at 56, 129; see also I.C. § 29-3-9-2. Of equal
concern was Setlak’s testimony that letting Adam continue as guardian would
possibly undermine Sarah’s relationship with Zach. Tr. Vol. 2 at 140-41.
[14] Likewise, the trial court did not abuse its discretion in appointing Sarah as
permanent successor guardian as nearly all evidence about her was positive.
For instance, once she picked up Zach in North Carolina, Sarah immediately
reached out to experts to arrange services for Zach, something that Adam was
unable or unwilling to do during a fifteen-month period. Id. at 58, 140. Sarah
tried to maintain a positive relationship between Zach and Adam by arranging
visits and regular communication, while Adam had stymied all of Sarah’s
efforts to maintain a relationship with Zach while Zach lived with Adam in
North Carolina. Id. at 64, 124-25. Upon arrival in Indiana, Sarah immediately
attended to Zach’s dental and medical needs. Id. at 62-64.
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[15] The glowing testimony from Zach’s service providers about Sarah also illustrate
that the trial court did not abuse its discretion in appointing Sarah as successor
guardian. For example, Clark described Sarah's interaction with Zach as
“[e]xcellent... she was very on the ball it seemed to me” and that ““she would
be in the top of the parents I have met . . . .” Id. at 10. Both Martin and Setlak
were impressed with Sarah’s ability to procure services for Zach. Id. at 42, 140.
[16] In arguing that the trial court’s ruling was an abuse of discretion, Adam invites
us to reweigh the evidence. For instance, he contends that his more spacious,
pet-free living quarters, where Zach would have his own bedroom, would make
him a better guardian than Sarah. See Appellant’s Br. at 7. He also claims he
would make a better guardian because Zach’s grandparents would help
supervise Zach, and Adam would ensure that Zach regularly attends church.
See id. This evidence was before the trial court, and its ruling shows that it
found it was outweighed by the evidence that Zach’s best interests were served
by appointing Sarah as successor guardian. See In re Atkins, 868 N.E.2d at 883.
The prerogative to weigh evidence belongs to the trial court, not this court, and
we will not second guess its assessment of the evidence. See In re Morris, 56
N.E.3d at 723.
[17] Affirmed.
Vaidik, C.J., and Riley, J., concur.
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