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               MEMORANDUM DECISION – NOT FOR PUBLICATION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

                                            2
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


                                            3
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.
                                                      4
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



                                              5
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

                                           6
      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

                                            7
          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

                                            8
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.



                                              9
       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.



                                            10
       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.




                                            11
