J.L.M. v. M.S.S. (In re Guardianship of M.N.S.)

23 N.E.3d 759

In re the GUARDIANSHIP OF M.N.S.;J.L.M., Appellant/Respondent

v.M.S.S., Appellee/Petitioner.

No. 20A05–1308–GU–438.

Court of Appeals of Indiana.

Dec. 18, 2014.

Elizabeth A. Bellin, Elkhart, IN, Attorney for Appellant.

Maryellen Baker, Elkhart, IN, Attorney for Appellee.

OPINION

PYLE, Judge.

STATEMENT OF THE CASE

In this appeal, we are called upon to review a trial court's order granting a natural parent's motion to terminate a guardianship held by a third party over the natural parent's child. J.L.M. (“Guardian”) appeals the trial court's order granting M.S.S.'s (“Father”) motion to terminate the guardianship over M.N.S. (“Child”), arguing that she presented clear and convincing evidence that Child should remain in her care.

After carefully reviewing the entire record, including the transcript of the three days of hearings and the trial court's thorough and well-reasoned findings of fact and conclusions thereon, we conclude that Guardian did not meet her burden of showing that the best interests of Child were substantially and significantly served by placement with her. Accordingly, we affirm the trial court's order terminating the guardianship over Child.

We affirm.

ISSUE

Whether the trial court erred by granting Father's petition to terminate the guardianship over Child.

FACTS

Child was born in October 2003 to A.D. (“Mother”) and Father, who were not married. Mother and Father also had another child, M.S., who was born in September 2006.¹ Guardian is Father's former step-mother.²

While Mother was pregnant with Child, she lived with her mother (“Maternal Grandmother”). During Mother's pregnancy, Guardian “was around a lot,” bought “a lot of stuff” for Child and “became really close to [Mother].” (Tr. 18 ).

About one month after Child was born, Mother moved in with Father at his father's trailer so that they “could raise [Child] together.” (Tr. 19 ). Sometime in February 2004, Father went to prison after pleading guilty to theft. Mother and Child then moved to Maternal Grandmother's house.³ While Mother worked, Father's mother (“Paternal Grandmother”) and Guardian helped to babysit Child and helped cover the costs of an additional babysitter.

On February 23, 2004, Guardian had Mother sign a form granting Guardian temporary guardianship over Child. According to Mother, Guardian told Mother that she needed to sign the form so that Guardian could get medical care for Child while Guardian babysat Child. Thereafter, in April 2004, Guardian helped Mother to find an apartment and move out on her own. Mother then had difficulty taking care of Child and told Father about it while he was in prison. Father called Guardian and asked her if she would be able to help care for Child until his release from prison, and Guardian agreed. While Father was in prison, either Guardian or Paternal Grandmother took Child to visit with Father so he could see her every weekend.

On April 30, 2004, Guardian filed a petition to be appointed permanent guardian over Child and attached a written consent signed by Mother. At the time Guardian filed this petition, Father was still incarcerated, and Guardian did not tell him about the petition. On May 6, 2004, the trial court—noting that Mother had signed a consent and that Father was incarcerated in the Department of Correction—issued an order granting Guardian's petition for a permanent guardianship of Child.

In January 2005, Father was released from prison, placed in a Community Transition Program, and put on house arrest. Prior to Father's release, Father and Guardian had agreed that he could move in with her and Child, but once he was released, Guardian told him that he could not. Father then moved in with Paternal Grandmother but helped pay Child's babysitting costs. Father was able to have unsupervised visitation with Child.

At the end of January 2005, Guardian filed a motion for payment of child support, seeking to obtain child support from Mother only. At that same time, Mother filed a motion to terminate the guardianship, stating that there was “no further need for a guardianship” because she was able and willing to care for Child. (App. 489). Father backed Mother's efforts to terminate the guardianship.

The trial court held a hearing on February 4, 2005, and appointed a guardian ad litem (“GAL”) to represent Child's interests. During the hearing, Mother agreed to pay $50.00 per week to the clerk of the court. Father was also present at the hearing and voluntarily agreed to pay $60.00 per week directly to Guardian. Thereafter, between 2005 and 2010, Father paid child support directly to Guardian.

In September 2006, Mother gave birth to M.S. A few weeks later, Father and Mother broke up. After M.S.'s birth, Mother apparently did nothing to pursue her petition to terminate the guardianship. On September 18, 2006, the trial court ordered that the guardianship case was “ordered off the active docket.” (App. 6).

On November 26, 2007, Father filed a handwritten minute sheet with the trial court, stating that he “would like to have more visitation with [Child] and [/]or custody.” (App. 457).⁴ The trial court determined that it was “not a proper pleading” and declined to take any action on Father's request. (App. 6).

There was animosity between Guardian and Father, and it apparently peaked in December 2009. During that month, Guardian filed a police report, alleging that Father had assaulted her.⁵ She also signed an agreement with the Title IV–D Prosecutor to have the State enforce her support rights for Child.⁶ Additionally, Guardian filed for a protective order against Father on behalf of herself and Child. The trial court held a hearing in the protective order case in January 2010 and modified Father's parenting time to supervised visitation at CAPS.⁷ This protective order prevented Father from seeing or talking to Child outside of his visitation time.

Also in December 2009, Father filed another handwritten minute sheet. The trial court “in the exercise of its discretion” set the matter for a hearing. (App. 6). The trial court held a review hearing on May 3, 2010. During this hearing, the GAL recommended that Father's visitation should be moved to unsupervised visitation. During the hearing, Guardian tendered a petition to adopt Child and attached a written consent from Mother.⁸

Following the hearing, the trial court requested the GAL to submit an updated report regarding parenting time. On June 9, 2010, the GAL filed a report with the trial court. In this report, the GAL recommended that Father's unsupervised parenting time be reinstated. The GAL also stated that Father did not present a danger to Child during his parenting time.

On July 29, 2010, the trial court held a status conference to address the GAL's report. Guardian requested that Father be required to submit to random drug testing before having any unsupervised visitation. Father admitted that any drug screen would likely not come back clean because had recently smoked marijuana. The trial court then ordered Father to submit to a hair follicle test within twenty-four hours. Father's test results tested positive for marijuana. Thereafter, for approximately the next year, the trial court ordered Father to submit to random drug screens, including urinalysis and hair follicle examinations; these later examinations indicated no drug use.

In November 2010, Father made an oral request for unsupervised parenting time outside of CAPS, but the trial court denied his request and kept Father's supervised parenting time in place. Later, in April 2011, Father filed a petition to modify visitation. In his petition, Father asserted that he had had negative drug screens and consistent, “positive” visits with Child at CAPS, and he requested that the trial court modify his visitation from supervised to unsupervised visitation. (App. 275). Also in April 2011, Father was granted custody of Child's younger sister, M.S.

On July 7, 2011, the trial court granted Father's petition to modify visitation and ordered that Father was to have unsupervised parenting time once a week for a period of four hours. The trial court also “ADMONISHED” the parties that they were not to discuss this matter with Child and were not to make any “disparaging comments” about any of the parties. (App. 249).

On December 13, 2011, Father filed a petition to terminate the guardianship over Child. In his petition, Father asserted that the “reasons for the initial guardianship are no longer in effect: father is no longer incarcerated and is able to be the minor child's stable and regular caregiver.” (App. 222). Father also stated that Mother was “in agreement that the guardianship [was] no longer necessary.” (App. 222). The trial court set a hearing on Father's termination petition for February 6, 2012.

Also in December 2011, Guardian made a report to Indiana Department of Child Services (“DCS”) and alleged that Father had left bruising on Child. DCS met with Child but did not see any bruising. After DCS met with Father to investigate the alleged incidents of abuse, it determined that the allegation of abuse of Child by Father was unsubstantiated. Thereafter, Guardian filed for and received an ex parte protection order against Father on behalf of herself and Child.

On January 23, 2012, the trial court held a status hearing, during which Father tendered a copy of the DCS report that determined that any allegation of abuse of Child by him was unsubstantiated. The trial court ordered that the parties should exchange Child at local police departments.

In February 2012, the trial court set a hearing on Father's guardianship termination motion for July 3, 2012. Mother later moved for a continuance of the hearing, which the trial court granted over Father's objection. Thereafter, the hearing was set for October 12, 2012.

In July 2012, Father married Mi.S. (“Stepmother”). Also in July 2012, Father filed a motion for extended parenting time and sought to have parenting time in accordance with the...