Kenneth Hunter v. Deborah Goodrich and Paul Goodrich

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 Mar 07 2013, 8:29 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
MICHAEL R. AUGER JAMES T. ROBERTS
Franklin, Indiana Nashville, Indiana
DANIEL C. REUTER
Nashville, Indiana
IN THE
COURT OF APPEALS OF INDIANA
KENNETH HUNTER, )
)
Appellant-Petitioner, )
)
vs. ) No. 07A05-1205-GU-244
)
DEBORAH GOODRICH and )
PAUL GOODRICH, )
)
Appellees-Respondents. )
APPEAL FROM THE BROWN CIRCUIT COURT
The Honorable Judith A. Stewart, Judge
The Honorable Douglas E. Van Winkle, Magistrate
Cause No. 07C01-1003-GU-4
March 7, 2013
MEMORANDUM DECISION – NOT FOR PUBLICATION
BAKER, Judge
This case involves the guardianship of a five-year-old girl. Kenneth Sr. and Tina
Hunter (collectively, the Hunters) are the paternal grandparents of P.G., who was born on
January 8, 2008. Dia (Mother) and Kenneth Hunter, Jr. (Father) are P.G.’s parents, and
Paul and Deborah Goodrich (the Goodriches) are P.G.’s maternal grandparents. The
Goodriches are P.G.’s current guardians and the Hunters petitioned to remove the
Goodriches and have the trial court name them as P.G.’s successor guardians.
The issue presented here is whether the trial court erred in allowing evidence of
Kenneth Sr.’s prior incidents of sexual and emotional abuse of his children, which
provided a sufficient evidentiary basis for the trial court to deny the petition to change
guardians. Kenneth Sr. argues that admitting such evidence was error because the
alleged incidents happened many years ago, and the overwhelming evidence clearly
demonstrates that he and his wife should be appointed P.G.’s guardians.
Although the trial court found, and we agree, that neither arrangement is ideal for
P.G., we find that the evidence of Kenneth Sr.’s prior abuse was properly admitted in
these circumstances and that the evidence was sufficient to support the trial court’s
decision to have the Goodriches remain as P.G.’s guardians, subject to certain
modifications as ordered.
Thus, we affirm the judgment of the trial court.
FACTS
On March 5, 2010, the Goodriches filed an emergency petition for their
appointment as temporary guardians and for permanent guardianship of P.G. because of
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Mother’s history of mental health instability that included several suicide attempts. Both
Mother and Father consented to the guardianship.
On March 22, 2010, the trial court appointed the Goodriches as P.G.’s guardians,
where it determined that Mother and Father were unable to provide for P.G.’s support,
maintenance, and medical care. The order stated that Mother was to have parenting time
“as the parties agree in the home of [the Goodriches].” Appellant’s App. p. 12. It was
also determined that
Father shall exercise parenting time with the minor child. . . . However,
there shall be a deviation from the Indiana Parenting Guidelines in that
Father’s parenting time shall be exercised in the home of and supervised by
the paternal grandparents. . . . Should Father not elect to exercise his
parenting time, paternal grandparents shall have the option to exercise
visitation with the ward to preserve their relationship with the child. Father
shall be designated the non-custodial parent for holiday and extended
parenting time purposes.
Id.
On October 7, 2011, the Hunters filed a motion for clarification and modification
of the order, stating that the Goodriches had permitted Mother to take P.G. from the home
on numerous occasions and spend the night in Mother’s home in violation of the prior
order. In response, on December 21, 2011, the Goodriches filed a petition to modify the
guardianship order to permit Mother to have P.G. on an unsupervised basis.
On January 15, 2012, Mother was arrested after a physical altercation with her
husband that occurred after she had attempted to commit suicide. Five days later, the
Hunters filed an emergency petition to modify the guardianship for a confirmation that
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the Goodriches should not allow Mother to have unsupervised parenting time with P.G.
The Hunters also sought to have the trial court remove the Goodriches as P.G.’s
guardians.
The trial court heard evidence on three different days regarding the Hunters’
emergency petition.1 During these hearings, Mother testified about the physical struggle
that she had with her husband in P.G.’s presence earlier that month. Mother also
admitted to a history of mental illness, that she has attempted to commit suicide on at
least two occasions, and that she has threatened suicide “quite a bit.” Tr. p. 12-13.
Mother acknowledged that the police had been called to her residence on at least four
occasions where she had threatened to commit suicide. Mother also testified that
Kenneth Sr. had physically and sexually abused P.G. However, even though Mother had
contacted the Indiana Department of Child Services (DCS) and the Johnson County
Sheriff’s Department about these incidents, they were never substantiated.
Paul Goodrich also testified and acknowledged that Mother had mental health
issues and that he was concerned for P.G.’s safety while she was in Mother’s care.
Likewise, Debbie Goodrich acknowledged Mother’s suicide attempts and her own
inability to control Mother’s behavior.
Katie Hurley, Kenneth Sr.’s youngest daughter, testified that Kenneth Sr. had
physically, sexually, and emotionally abused her and her sister when they were children.
Hurley also testified that Kenneth Sr. would drink, become intoxicated, and use
1
The Goodriches withdrew their earlier petition to modify.
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marijuana in his daughters’ presence. Kenneth Sr. also failed to protect his daughters
from his son’s sexual abuse, even though they had reported various incidents to him.
Some of these incidents occurred more than ten years ago.
Kara Hunter also testified that she believed that Kenneth Jr. did “inappropriate
things” to her when she was four or five years old. Tr. p. 212-14. She also remembered
that Kenneth Sr. would put his tongue in her mouth when he kissed her.
Kenneth Sr.’s former wife, Susan Falstreau, also testified about incidents that
occurred nearly twenty years earlier. More specifically, Falstreau testified that Kenneth
Sr. was physically and mentally abusive towards her during the marriage. At some point,
Falstreau told the Goodriches that Kenneth Sr. was “horrible” and “evil.” Tr. p. 244.
Kenneth Sr. denied all allegations of abuse that his daughters and ex-wife had
made against him. However, Kenneth Sr. admitted abusing marijuana and alcohol at
some point in his life.
Simon Gelaye, a caseworker with the DCS, testified that he became involved in
the case in January 2012, after receiving a report of neglect regarding P.G. It was
determined that P.G. should be removed from the Goodriches’ care because they had
initially promised that Mother would not live in the house. Thus, DCS personnel
believed that P.G.’s safety was endangered.
When P.G. was initially removed from the Goodriches’ residence, Paul refused to
allow Gelaye into the residence and made threats against him. The Brown County
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Sheriff’s Department was also contacted to prevent Paul from following Gelaye once
Gelaye had left the premises.
Finally, the guardian ad litem (GAL) testified that P.G. should be with the
Hunters. Even though an allegation of child molest had been substantiated against
Kenneth Jr., the GAL felt that the incident should have no bearing on the
recommendation because the allegation was remote and Kenneth Jr. did not live with the
Hunters.
Following the hearing, the trial court denied the Hunters’ emergency petition to
modify the guardianships and entered the following findings of fact and conclusions of
law:
While neither the present guardians’ home nor the Hunters’ home is ideal
for the child, the court finds the home of the guardians to be the most
suitable home for the child. The testimony of Katie Hurley and Kara
Hunter is found to be truthful and such evidence establishes that Kenneth
Hunter, Sr. physically, sexually and emotionally abused his own daughter
when they were children. Moreover, Mr. Hunter abused alcohol and
became intoxicated in his daughters’ presence and openly rolled marijuana
and smoked marijuana cigarettes in their presence and view. Mr. Hunter
also failed to protect his daughters from sexual abuse by his son, Kenneth
Hunter, Jr. when such abuse was reported to him. The court finds that the
testimony of the girls’ mother, Susan Falsteau, establishes that Mr. Hunter
also physically and emotionally abused her and Kenneth Jr. The court finds
Mr. Hunter’s denials not credible.
The Court does recognize that certain problems exist in the guardians’
household as well. Specifically, the child’s mother, Dia Goodrich suffers
from certain emotional disorders which sometimes result in explosive
emotional outbursts and hysteria and, on at least one occasion, violence
toward her husband, Brian Cramer, which resulted in bodily injury to Mr.
Cramer. Further, there is evidence that Paul Goodrich has difficulty
managing his anger, although it is unknown if this was a problem before
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Mr. Hunter unilaterally refused to return the child to the guardians. The
court further finds the guardians exercised poor judgment in agreeing to
and allowing Kenneth Hunter, Sr. and Tina Hunter to have extended
parenting time with the child after knowing of the allegations of abuse of
his own children, and not investigating these allegations.
Based on these findings, the trial court made the following modifications to the
Goodriches’ guardianship:
1. So long as Dia continues in her counseling and continues to make
progress she may reside in the guardians’ home and have normal contact
with [P.G.], subject, however to the requirement that all contact between
Dia and [P.G.] shall be supervised by one of the guardians. The
guardians shall take all necessary steps to remove Dia from the home in
the event she discontinues counseling against the recommendations of
Centerstone or should she demonstrate hysteria or uncontrollable
emotional outbursts. Dia shall immediately execute releases of
information authorizing Centerstone to report her progress in treatment
to the guardians and the court.
2. Paul Goodrich shall promptly schedule an appointment with
Centerstone for an evaluation to determine whether he has an anger
management problem and if so whether any counseling or treatment is
suggested. If counseling or treatment is suggested [through
Cornerstone], Paul Goodrich shall fully participate in and successfully
complete such program. Paul shall execute a release of information
form to permit the court to receive a report of the evaluation. . . .
3. The guardians shall not permit any overnight visits by Mr. Kenneth
Hunter, Sr. or Tina Hunter. Visits shall be limited to the daytime hours.
Because a relationship has been established between the paternal
grandparents and the child, visitation shall occur as the parties agree. In
the event the parties are not able to agree the court will consider
establishing a specific schedule. The Hunters shall promptly return the
child to the guardians at the end of any visit. In the event the Hunters
fail or refuse to return the child as requested by the guardians, no further
visits shall be permitted without a court order.
4. Any parenting time with Kenneth Hunter, Jr., shall be only where and as
permitted by the guardians in accordance with any rules set by the
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guardians and not pursuant to the parenting time guidelines. At a
minimum, any parenting time by Mr. Hunter, Jr. shall be supervised by
the guardians or by their designee, and not by Dia Goodrich.
5. The guardians shall keep the child enrolled in a suitable pre-school
program until she begins to attend kindergarten.
6. The modifications of the guardianship order set forth in this order are
effective only when the juvenile court in the CHINS case: (1) enters an
order approving the modifications; or (2) terminates the child in need of
services proceeding.
Hunter now appeals.
DISCUSSION AND DECISION
I. Admission of Testimony
Kenneth Sr. first contends that the modified guardianship order must be reversed
because the trial court improperly allowed his two daughters and ex-wife to testify about
his prior behavior of drug and alcohol abuse and sexual abuse. Kenneth Sr. maintains
that because the alleged incidents happened when his daughters were young children and
now are adults, such “evidence . . . was too remote as to be relevant.” Appellant’s Br. p.
26.
In resolving this issue, we note that In re the Guardianship of B.H., and S.H.,
Minor Children, 770 N.E.2d 283, 290 (Ind. 2002) involved litigation between a
noncustodial father who sought custody of his children after their mother died and the
stepfather, who sought guardianship over the children. The trial court ruled in the
stepfather’s favor, at least in part based on its findings of abusive behavior that was
directed toward one of the children and to the deceased wife, as well as past alcohol
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abuse. A panel of this Court reversed, observing that the decade-old behavior was
irrelevant to prove the unfitness of the father at the present time. In re the Guardianship
of B.H., & S.H., Minor Children, 730 N.E.2d 743 (Ind. Ct. App. 2000). However, our
Supreme Court granted transfer and determined that other factors may be considered in
addition to the three factors of unfitness, voluntary relinquishment, and long
acquiescence in another’s custody, which are criteria for placing children with someone
other than their natural parent. More specifically, evidence of past abuse was placed in
this category of additional considerations. Guardianship of B.H., and S.H., 770 N.E.2d
at 290. In other words, our Supreme Court determined that evidence of past abuse is
relevant, admissible, and potentially determinative of the present suitability of an adult to
have custody of a child.
In light of that pronouncement, we find the rationale in Guardianship of B.H. and
S.H. controlling here. As a result, we conclude that the trial court did not err in
permitting Kenneth Sr.’s daughter and ex-wife to testify about his prior instances of
abuse. Hence, his claim fails.
II. Sufficiency of the Evidence in Support of the Trial Court’s Judgment
In a related issue, Kenneth Sr. argues that the evidence was insufficient to support
the trial court’s judgment. More particularly, Kenneth Sr. maintains that we “should find
that a reasonable trier of fact could not conclude that the trial court’s judgment was
established by clear and convincing evidence.” Appellant’s Br. p. 31.
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We note that all findings and orders of the trial court in guardianship proceedings
are within the trial court’s discretion. Ind. Code § 29-3-2-4. We review the findings that
are issued by the trial court under an abuse of discretion standard. E.N. ex rel. Nesbitt v.
Rising Sun—Ohio Cnty. Cmty. School Corp., 720 N.E.2d 447, 450 (Ind. Ct. App. 1999).
In determining whether the trial court abused its discretion, we look to the trial
court’s findings of fact and conclusions thereon. Id. The findings will not be set aside
unless they are clearly erroneous. Id. Findings of fact are clearly erroneous when the
record lacks any facts or reasonable inferences to support them. DeHaan v. DeHaan, 572
N.E.2d 1315, 1320 (Ind. Ct. App. 1991). A judgment is clearly erroneous when it is
unsupported by the findings of fact and conclusions thereon. Id.We will give due regard to the trial court’s ability to assess the credibility of
witnesses. In re Guardianship of J.K., 862 N.E .2d 686, 691 (Ind. Ct. App. 2007). We
do not reweigh the evidence; rather, we consider the evidence most favorable to the
judgment with all reasonable inferences drawn in favor of the judgment. Id.In this case, Kenneth Sr. maintains that the trial court had no discretion to believe
the various claims of abuse because the DCS personnel did not believe the allegations,
his ex-wife was engaged in a legal dispute with him, and the GAL did not believe them.
Appellant’s Br. p. 34-35. Moreover, Kenneth Sr. points out that the judgment must be set
aside because the trial court also heard compelling evidence about the Goodriches’
shortcomings as guardians.
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Notwithstanding these contentions, the trial court was entitled to believe all of the
allegations about the incidents of sexual and emotional abuse, excessive drinking, and
marijuana use that were made by Kenneth Sr.’s daughters and ex-wife. Each of the
witnesses testified under oath and were subject to extensive cross-examination.
Also, contrary to Kenneth Sr.’s claims, the trial court did acknowledge the
evidence that was presented about the Goodriches’ alleged shortcomings about their
ability to serve as P.G.’s guardian. Appellant’s App. p. 8. And faced with the choice of
placing P.G. with someone it had determined to have a history of child molesting, failing
to protect his children against child-molesting, and drug and alcohol abuse, or with
guardians who have various other shortcomings to a lesser degree, the trial court chose to
keep P.G. with the non-abusive guardians while ordering them to take steps and minimize
and overcome their obstacles.
In short, Kenneth Sr. is requesting that we reweigh the evidence, which we will
not do. As a result, we cannot say that the trial court’s judgment was clearly erroneous.
The judgment of the trial court is affirmed.
RILEY, J., and BARNES, J., concur.
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