In Re: The Guardianship of R.B. and S.B., minor children, M.N. and D.N. v. E.B.

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
May 03 2013, 9:23 am
ATTORNEY FOR APPELLANTS;
CASEY D. CLOYD
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
IN RE: THE GUARDIANSHIP OF R.B, )
and S.B., minor children, )
)
M.N. and D.N., )
)
Appellants-Petitioners, )
)
vs. ) No. 32A04-1211-GU-583
)
E.B., )
)
Appellee-Respondent. )
APPEAL FROM THE HENDRICKS SUPERIOR COURT
The Honorable Robert W. Freese, Judge
Cause No. 32D01-1203-GU-00023
May 3, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
ROBB, Chief Judge
Case Summary and Issues
M.N. and D.N. (“Grandparents”) appeal the denial of their request for permanent
guardianship of S.B., raising two restated issues for our review: 1) whether the trial court
erred by failing to make more detailed findings of fact in its order, and 2) whether the trial
court abused its discretion by denying their request for guardianship. Concluding the trial
court did not err in any respect, we affirm.
Facts and Procedural History
E.B. (“Mother”) has four children. S.B., her youngest, was born in 2009. Since 2009,
Mother has lived in Indianapolis on numerous occasions but, at the time of the hearing, lived
in Milwaukee, Wisconsin. Grandparents are Mother’s parents. They first filed for
guardianship of S.B. and her brother, R.B., in March of 2012.1 Grandparents claimed they
were entitled to emergency relief because Mother was unable to care for her children because
she suffered from alcohol problems, was unemployed, and lived in a home without adequate
utilities or food. Grandparents also claimed that S.B. had been living with them since her
birth. The trial court denied their request twice. When the court made its second denial, it
appointed a guardian ad litem (the “GAL”) to review the case.
The GAL’s final report indicated that Grandparents had contacted the Bureau of
Milwaukee Child Welfare to report Mother’s alleged abuse and neglect of her children at
1
The request for guardianship of R.B. was denied based on the court’s finding that it lacked
jurisdiction over him. That finding is not at issue on appeal. Consequently, we limit our recitation of the facts
to those related to S.B.
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least three times in the past ten years.2 Each report ended with a finding that the allegations
were unsubstantiated. One report indicated that both children appeared well-groomed and
well-dressed, that the house was habitable and stocked with food, and that while the home
may have needed minor repair, it did not pose a threat to the safety of the children. The
GAL, however, was concerned because “Mother seems to struggle to make ends meet” and
because Mother allowed S.B. to stay with Grandparents for prolonged periods of time.3
Appellant’s Confidential Appendix at 34. Due to the bond between Grandparents and S.B.,
the GAL recommended granting Grandparents’ request for guardianship.
The trial court eventually held a hearing on October 24, 2012, in which Mother, her
roommate, the GAL, and D.N., the grandmother, testified.4 After the hearing, the trial court
entered an order, stating, in pertinent part, the following:
The request for permanent guardianship of [S.B.] is DENIED as the Petitioner’s
[sic] have not met the burden necessary to show Mother is not capable of
providing for the health, safety, and welfare of [S.B.]. Child Protective
Services has been called numerous times by the [Grandparents] and each time,
after investigations, CPS did not substantiate a case or remove [S.B.] or [her
brother].
Appellant’s App. at 8. Grandparents now appeal. Additional facts will be provided as
necessary.
Discussion and Decision
I. Standard of Review
2
In her report, the GAL indicated that she received and reviewed nearly one hundred and fifty pages of
records relating to the reports and investigations conducted by the Bureau of Milwaukee Child Welfare
.
3
The extent of time S.B. lived with Grandparents is unclear.
3
All findings and orders in guardianship proceedings are within the trial court’s
discretion. Ind. Code § 29-3-2-4(a); see also E.N. ex rel. Nesbitt v. Rising Sun-Ohio Cnty.
Cmty. Sch. Corp., 720 N.E.2d 447, 450 (Ind. Ct. App. 1999), trans. denied. Thus, we review
those findings for an abuse of discretion. Nesbitt, 720 N.E.2d at 450. We will find an abuse
of discretion only when the decision of the trial court is clearly against the logic and effect of
the facts and circumstances before the court, or if the court has misinterpreted the law. In re
Guardianship of V.S.D., 660 N.E.2d 1064, 1066 (Ind. Ct. App. 1996).
II. Guardianship
Any person may petition the court for appointment as a guardian over a minor. See
Ind. Code § 29-3-5-1(a). The court must find that “the appointment of a guardian is
necessary as a means of providing care and supervision of the physical person or property of
the . . . minor.” Ind. Code § 29-3-5-3(a).
A. Trial Court Order
Grandparents argue that the trial court erred when it denied their request for
permanent guardianship without entering specific findings of fact and conclusions of law.
They argue that the trial court’s brief order made it impossible for them to know whether the
trial court applied the correct legal standard and whether the trial court considered all of the
facts in making its determination.
Grandparents rely on the case of In re Guardianship of A.R.S., 816 N.E.2d 1160 (Ind.
Ct. App. 2004). In that case, the natural parent petitioned to terminate the guardianship of
4
Mother and her roommate testified from Milwaukee via telephone.
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her children by their grandparents. The trial court denied her petition and entered an order
stating the following: “It is ORDERED by the Court that the Petition to Terminate
Guardianship filed herein is denied.” Id. at 1162. This court noted that neither party
requested findings and that the statute governing the termination of guardianships does not
require specific factual findings. Id. However, the court reversed and remanded because
“our supreme court has explicitly mandated trial courts to issue detailed and specific findings
when a child is placed in the care and custody of a person other than a natural parent” and
“[w]e see no reason not to extend this requirement of detailed findings to petitions to
terminate guardianship.” Id.
Grandparents’ reliance on A.R.S. is misplaced. In A.R.S., the natural parent wanted
her children returned to her but the trial court denied that request. Under Indiana law, 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.” In re Guardianship of B.H., 770 N.E.2d 283,
287 (Ind. 2002). The child’s best interest standard is implicit within the guardianship statute.
Hinkley v. Chapman, 817 N.E.2d 1288, 1291 (Ind. Ct. App. 2004). The A.R.S. court noted
that “[s]pecial findings are especially important in this context as a means of alerting parents
of the reasons why their children are not being returned to their custody, thereby effectively
putting the parents on notice as to what steps they must take before their children will be
returned to them.” 816 N.E.2d at 1162. Here, the presumption in favor of the natural parent
supports the trial court’s decision to deny Grandparents’ request for permanent guardianship.
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Thus, in the absence of a statutory requirement of specific findings of fact, there is no need
for the court to impose such a requirement.
In addition, the trial court’s order in this case is by no means as scarce as the one in
A.R.S. was. In its order, the trial court concluded that Grandparents had not met their burden
of proof in showing that Mother is not capable of providing for the health, safety, and
welfare of S.B. The trial court found that Child Protective Services had been called
numerous times, but had never substantiated a case or removed the children from Mother’s
care. Implicit in these findings is that Grandparents’ allegations against Mother were not
credible, and that Grandparents had not overcome the strong presumption that S.B.’s best
interests are served by remaining with her natural parent. See Nesbitt, 720 N.E.2d at 452
(finding that a trial court’s failure to include a special finding on necessity was not grounds
for reversal because it was implicit in its evidentiary findings). Thus, the trial court’s order is
a sufficient basis for us to determine whether the court abused its discretion in finding that a
guardianship was not necessary as a means of providing care and supervision for S.B.
B. Abuse of Discretion
Grandparents argue that the trial court erred by denying their petition for guardianship
over S.B. Grandparents based their petition on their allegations that Mother had alcohol
problems and was unemployed and that her home was unlivable, and on the significant
bonding between them and S.B. However, the trial court did not find their allegations against
Mother to be credible. This leaves us with the bonding between Grandparents and S.B.
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Grandparents point to the three factors which may rebut a presumption that it is in the
child’s best interests to be placed in the custody of the natural parent: (a) unfitness of the
parent, “(b) long acquiescence, or (c) voluntary relinquishment such that the affections of the
child and third party have become so interwoven that to sever them would seriously mar and
endanger the future happiness of the child.” Hendrickson v. Binkley, 161 Ind. App. 388,
393-94, 316 N.E.2d 376, 380 (1974), cert. denied, 423 U.S. 868 (1975), abrogated by In re
B.H., 770 N.E.2d at 287. Grandparents claim that the trial court incorrectly focused on only
the first of the three factors. In her report, the GAL had stated her opinion that the third
factor had been satisfied in this case.
First, we note that there was evidence in the record that Mother did not voluntarily
relinquish S.B. to Grandparents. During the hearing, she testified that, despite allowing S.B.
to visit Grandparents, Grandparents have refused to return her. Also, Mother came to pick
her children up from Grandparents’ home in March of 2012, but had to seek the assistance of
the Hendricks County Sheriff’s Department to do so. And while the GAL’s recommendation
can be properly taken into account by the court, it is insufficient on its own to rebut the
presumption in favor of Mother. See In re Guardianship of L.L., 745 N.E.2d 222, 232 (Ind.
Ct. App. 2001) (finding custody evaluation insufficient to rebut presumption in favor of
natural parent), trans. denied. Finally, and more importantly, our supreme court has
specifically stated that a trial court is not restricted to the Hendrickson criteria. In re B.H.,
770 N.E.2d at 287. Instead, the trial court must determine “whether the important and strong
presumption that a child’s interests are best served by placement with the natural parent is
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clearly and convincingly overcome by evidence proving that the child’s best interests are
substantially and significantly served by placement with another person.” Id. This
determination falls within the trial court’s discretion, and we give that judgment deference.
See Hinkley, 817 N.E.2d at 1293. Here, the trial court found that Grandparents had not met
their burden of proof in showing that Mother is not capable of providing for the health,
safety, and welfare of S.B. Implicit in this finding is that Grandparents had not overcome the
strong presumption that S.B.’s best interests are served by remaining with Mother. And
while we do not minimize the strong emotional bond that has developed between
Grandparents and S.B., a strong emotional bond between a child and a third person is only
one factor to consider. In re. B.H., 770 N.E.2d at 287. Thus, the trial court did not err in
refusing to find that “the appointment of a guardian is necessary” in this case. See Ind. Code
§ 29-3-5-3(a); see also Nesbitt, 720 N.E.2d at 452 (defining necessary as “[a]bsolutely
essential” or “[n]eeded to achieve a certain result or effect”). There was no abuse of
discretion when the trial court denied Grandparents’ petition for permanent guardianship of
S.B.
Conclusion
The trial court’s order, despite being brief, does not warrant reversal of this case.
Further, the trial court did not abuse its discretion by denying Grandparents’ request for
guardianship over S.B. Thus, the trial court’s order is affirmed.
Affirmed.
FRIEDLANDER, J., and CRONE, J., concur.
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