MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        FILED
regarded as precedent or cited before any                                Jul 16 2018, 9:04 am
court except for the purpose of establishing
                                                                             CLERK
the defense of res judicata, collateral                                  Indiana Supreme Court
                                                                            Court of Appeals
estoppel, or the law of the case.                                             and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
Dylan A. Vigh                                            Casey D. Cloyd
Indianapolis, Indiana                                    Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Richard Frye,                                            July 16, 2018
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         49A05-1711-DR-2671
        v.                                               Appeal from the Marion Superior
                                                         Court
Sarah (Frye) Mosby,                                      The Honorable Gary L. Miller,
Appellee-Respondent.                                     Judge
                                                         Trial Court Cause No.
                                                         49D03-0907-DR-35132



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A05-1711-DR-2671 | July 16, 2018             Page 1 of 19
                                STATEMENT OF THE CASE
[2]   Appellant-Petitioner, Richard Frye (Father), appeals the trial court’s order

      granting guardianship over his adult son, Nathaniel Frye (Nathaniel), in favor

      of Appellee-Respondent, Sarah Mosby (Mother).


[3]   We reverse and remand for further proceedings.


                                                    ISSUE
[4]   Father raises two issues on appeal, which we restate and consolidate as the

      following single issue: Whether a reversible error occurred because Nathaniel’s

      interests were not represented by a guardian ad litem during the guardianship

      proceedings.


                      FACTS AND PROCEDURAL HISTORY
[5]   Nathaniel was born on April 30, 1998, and is the adult son of Mother and

      Father, who were married for approximately twenty years and dissolved their

      marriage by agreement in 2011. In that agreement, the parties resolved to have

      joint legal custody over Nathaniel, with each parent having Nathaniel two

      weeks at a time.


[6]   Nathaniel has “mild to moderate” autism spectrum disorder, as well as delays

      in cognitive, language, development, and social skills that often accompanies it.

      (Tr. Vol. II, p. 14). Due to his cognitive impairment, Nathaniel “displays a

      limited ability to count, know the alphabet, and to process information.”

      (Appellees’ App. Vol. II, p.4). Nathaniel has the mentality “of a five-to an

      Court of Appeals of Indiana | Memorandum Decision 49A05-1711-DR-2671 | July 16, 2018   Page 2 of 19
      eight-year-old.” (Tr. Vol. II, p. 13). Additionally, Nathaniel is legally blind in

      his left eye, and due to the glaucoma in his right eye, he has partial vision. Due

      to his various disabilities, Nathaniel has attended Indiana School for the Blind

      and Visually Impaired (the School) since 2001, where he is currently enrolled

      and he is expected to remain in the School until he turns twenty-two. The

      School offers numerous after-school activities for its students, and Nathaniel

      participates in Boy Scouts, ukulele club, choir, student council, best buddies,

      and beekeepers club. Nathaniel is not interested in academic subjects, but he

      likes the social aspect of attending the School. Other than his apparent

      disability, by all accounts, Nathaniel is a healthy young man, who enjoys

      watching movies, and having social interaction with others.


[7]   After the parties’ divorce, Mother reconnected with an old flame, Mathew

      Mosby (Mosby), and they eventually got married. Mother and Mosby reside in

      Marion County, Indiana. Together, they have two minor children—a boy born

      in 2013 and a girl born in 2016. Mother and Mosby also have three dogs. For

      approximately nineteen years, Mother has worked for Resort Condominiums

      International (RCI) where she receives telephone inquiries from people and she

      prepares vacation schedules for them. RCI offers insurance coverage for

      Mother’s family, including Nathaniel. Due to Mother’s poor eyesight, which

      only affects her driving, Mosby transported Mother to work. Although

      Nathaniel took the bus to the School, whenever he needed to be retrieved,

      Mosby would provide transportation for him. Mosby does not work and stays

      at home to care for Nathaniel and his two minor children. As for Father, in


      Court of Appeals of Indiana | Memorandum Decision 49A05-1711-DR-2671 | July 16, 2018   Page 3 of 19
      2015, he married Sally Frye (Sally), and both reside in Danville, Indiana, with

      their two dogs and three cats. Father works from home for an insurance

      company, and Sally works as a caterer for a hospital.


[8]   On March 31, 2014, Mother filed a petition to modify the parties’ alternating

      two-week parenting time schedule, claiming that it was no longer in Nathaniel’s

      best interest. On October 23, 2014, Father filed his response and instead sought

      sole legal custody of Nathaniel. On December 4, 2014, Father requested the

      trial court to appoint a guardian ad litem for Nathaniel. On January 21, 2016,

      the trial court appointed Lowell Shroyer (GAL Shroyer) for Nathaniel. After

      conducting his investigation, GAL Shroyer filed his confidential report with the

      trial court in February 2016. GAL Shroyer’s report found areas of concern with

      Father’s home. He noted that the drive way to Father’s home was covered with

      an “extraordinary amount of tobacco products.” (Appellee’s App. Vol. II, p. 5).

      Also, GAL Shroyer noted that Father had two dogs and three cats, and he

      detected a “large amount of pet dander” within the home. (Appellee’s App.

      Vol. II, p. 5). As for Mother’s home, GAL Shroyer did not perceive any

      alarming issues and he concluded that despite the dogs, it was “fairly neat,

      clean and tidy.” (Appellee’s App. Vol. II, p. 5). At the end of his report, GAL

      Shroyer cited the discord and breakdown of communication between Mother

      and Father regarding Nathaniel’s parenting schedule, and he concluded that the

      sustenance of the parties’ existing alternating two-week parenting schedule was

      dependent “upon the willingness of the parties to communicate.” (Appellee’s

      App. Vol. II, p. 9). GAL Shroyer further recommended that if Nathaniel


      Court of Appeals of Indiana | Memorandum Decision 49A05-1711-DR-2671 | July 16, 2018   Page 4 of 19
              was to reside primarily in (1) home it appears that Mother’s
              home provides a cleaner, healthier environment than [] Father’s
              home. Mother and [Mosby] seem to have a realistic
              understanding of [Nathaniel’s] abilities, and the needs he has
              now, and will have in the future. Mother seems to be more
              supportive of [Nathaniel’s] relationship with Father than Father
              does of [Nathaniel’s] relationship with Mother. The GAL must
              conclude that [Nathaniel’s] relationship with Mother will greatly
              suffer if [Nathaniel] resides primarily with Father.


      (Appellee’s App. Vol. II, p. 9).


[9]   On February 24, 2016, the trial court conducted an all-day evidentiary hearing

      on the parties’ pending petitions and thereafter took the matter under

      advisement. While awaiting the trial court’s ruling on the pending motions,

      Nathaniel turned eighteen-years-old. On May 5, 2016, Mother filed a petition

      to establish guardianship over Nathaniel, in a different court. On May 25,

      2016, Father filed a motion to intervene, where he sought to be joined as a

      necessary party in Mother’s guardianship petition. In addition, Father filed a

      competing petition against Mother’s guardianship petition and he equally

      sought guardianship over Nathaniel. The guardianship court subsequently

      appointed Joseph Shikany (GAL Shikany) as Nathaniel’s new guardian ad

      litem. It appears that GAL Shikany did not conduct a new investigation or

      prepare a report for the trial court. Then approximately one month after

      Mother had filed her guardianship petition, on June 7, 2016, the trial court

      issued its order granting Mother sole legal and physical custody of Nathaniel,

      with Father exercising parenting time in accordance with the Indiana Parenting

      Time Guidelines (Guidelines).
      Court of Appeals of Indiana | Memorandum Decision 49A05-1711-DR-2671 | July 16, 2018   Page 5 of 19
[10]   On November 21, 2016, the trial court ordered the guardianship proceedings be

       transferred to the post-dissolution court where Mother and Father had

       previously filed their motions for modifying custody and parenting time.


[11]   At a two-day hearing, held on May 31 and continued to July 5, 2017, the

       parties each presented multiple witnesses, including Mosby—Mother’s

       husband, Sally—Father’s wife, and Jessica Frye (Jessica)—the parties’ oldest

       daughter. Nathaniel was excused from attending the hearing, and GAL

       Shikany did not testify nor did he present the trial court with his

       recommendations. In addition, the trial court took judicial notice of the

       evidence admitted during the custody modification hearing, the accompanying

       order granting Mother sole legal custody, and GAL Shroyer’s report, which

       was approximately fourteen months old.


[12]   During the guardianship hearing, Mother testified that she was conversant with

       the complexities associated with Nathaniel’s autism, and that she provided him

       with a safe and stable environment capable of meeting his needs. Mother

       testified that due to Nathaniel’s glaucoma in his right eye, she took him to the

       ophthalmologist for quarterly eye checkups. Also, she indicated that she daily

       administered Nathaniel’s glaucoma eye drop medicine. Mother stated that

       through her employer, she provided Nathaniel with health insurance, and that

       she had successfully applied for Social Security disability benefits on behalf of

       Nathaniel. Mother stated that she used an over-the-counter allergy medication

       to manage Nathaniel’s allergies to cigarette smoke and pet dander. Mother

       supervised Nathaniel’s personal hygiene. While Nathaniel could bath himself

       Court of Appeals of Indiana | Memorandum Decision 49A05-1711-DR-2671 | July 16, 2018   Page 6 of 19
       and brush his teeth, Mother monitored his efforts. Mother claimed that

       Nathaniel’s overall dental health was good. Mother additionally oversaw

       Nathaniel’s haircuts and she stated that Nathaniel had no dandruff. While

       Nathaniel exhibited teenage acne, Mother addressed it with over-the-counter

       acne topical creams. Lastly, Mother claimed that after the trial court granted

       her sole legal and physical custody over Nathaniel in 2016, Nathaniel became

       more social, and that he spends more time with his four-year-old half-brother

       and his one-year-old half-sister. Mother opined that if she was granted

       guardianship, Nathaniel would benefit from a continuation of his relationships

       with her husband Mosby and half-siblings, all of whom live with Mother in her

       home.


[13]   Mosby testified that he managed Mother’s household and cared for his two

       minor children, as well as Nathaniel. Mosby posited that since Mother was

       granted sole legal custody of Nathaniel in 2016, Nathaniel’s health has vastly

       improved. Mosby additionally testified that due to Nathaniel’s poor vision, the

       School had been working with Nathaniel by establishing obstacle courses so

       that Nathaniel would be more “aware or watch[] how he’s walking.” (Tr. Vol.

       II, p. 122). Mosby testified that “a couple times a week,” he would set up “like

       an obstacle course” inside the house for Nathaniel to challenge. (Tr. Vol. II, p.

       121). Also, Mosby stated that he and Nathaniel have a common interest in

       music and loved playing the ukulele together. He claimed that he and

       Nathaniel also enjoy taking walks outside. Mosby testified that Nathaniel was

       well bonded with his half-siblings. He also claimed that Nathaniel loved


       Court of Appeals of Indiana | Memorandum Decision 49A05-1711-DR-2671 | July 16, 2018   Page 7 of 19
       electronic gadgets such as “Alexa,” and he enjoyed watching movies through a

       projector. (Tr. Vol. II, p. 122). As for house chores, Mosby stated that

       Nathaniel can pick up his room; make his bed; “he does a pretty good job. He

       is getting better at it. He does - -take care of his dishes. He will rinse them off.

       He will even come over and grab a rag and go back over and wipe off his area

       when he is done. He’s pretty limited on what he can do on his own, but he tries

       to help.” (Tr. Vol. II, p. 123). Mosby stated that the family had meals together

       at the table, and Nathaniel “usually likes to lead the prayer.” (Tr. Vol. II, p.

       124).


[14]   As noted, the School offers several after-school activities for its students, and

       Nathaniel participates in Boy Scouts, ukulele club, choir, student council, best

       buddies, and beekeepers club. Nathaniel enjoys the social aspect of attending

       the School. Father then claimed that after Mother was granted sole legal and

       physical custody of Nathaniel in 2016, Mother removed Nathaniel from all the

       above activities. Because of Mother’s actions, Father posited that Nathaniel’s

       life skills have significantly diminished and that Nathaniel appears to be more

       agitated and withdrawn. Father stated that he had previously taught Nathaniel

       to independently groom himself, and attend to his own bathroom needs.

       Father testified that Nathaniel is “back to asking” when he can go to the

       bathroom. (Tr. Vol. II, p. 237). Father blamed Mother for Nathaniel’s

       regression.


[15]   At the close of the evidence, the trial court took the matter under advisement

       pending submission of the parties’ proposed findings. On October 30, 2017, the

       Court of Appeals of Indiana | Memorandum Decision 49A05-1711-DR-2671 | July 16, 2018   Page 8 of 19
trial court issued its findings of facts and conclusion thereon granting Mother’s

guardianship petition. Among other things, the trial court entered the following

findings and conclusions


        16. Having reached the age of majority, [Nathaniel] is now an
        incapacitated person in need of the appointment of a guardian to
        manage his affairs and assist him in self-care on a daily basis.


        17. Mother and Father each believe that they are best suited to
        be appointed the sole guardian of [Nathaniel’s] person and estate,
        but each party has varying perspectives on a schedule for
        visitation with the other parent.


        18. Mother believes that the current schedule of minimum
        parenting time for Father is appropriate.


        19. Father believes that the reduction of time that [Nathaniel]
        has spent with him has caused confusion for [Nathaniel] and has
        fractured in the bond between [Nathaniel] and the members of
        his family who reside in Father’s home. Father would propose a
        "week on/week off’ alternating schedule for parenting time.


        20. Father, Father’s wife, Sally [], Mother, and Father’s
        daughter, Jessica [], each testified independently that since the
        change in parenting time schedule, they have observed
        [Nathaniel] to be increasingly short tempered, less affectionate,
        and in need of constant re-assurance that he is wanted in their
        house.


        21. [Mosby] believes that, since the change in parenting time
        schedule, [Nathaniel] becomes more agitated prior to transfers
        and becomes frustrated about what he might be missing out on at
        Mother’s home, which require Mother and [Mosby] to review

Court of Appeals of Indiana | Memorandum Decision 49A05-1711-DR-2671 | July 16, 2018   Page 9 of 19
        everything that [Nathaniel] will be missing, just prior to going to
        Father’s home for parenting time.


        ***


        25. Whenever opportunities arise for [Nathaniel], Mother and
        Father’s inability to communicate with each other hamper
        [Nathaniel’s] experience.


        26. Communication between the parties does not appear to have
        improved during the period that Mother has had sole custody.


        27. Specifically, Father provided a series of emails in which he
        requested information from Mother, only to be told by Mother
        that it had been handled, but without providing additional
        information. In these emails, Mother repeatedly reminds Father
        that she has “SOLE” custody and that he needs to just do as she
        says. The [c]ourt finds the use of capitalized letters in the email
        to be enlightening of Mother’s unwillingness to accommodate
        Father’s request.


        ****


        30. At the last [custody] hearing, the [c]ourt heard significant
        testimony regarding the process for obtaining braces for
        [Nathaniel] which began in 2014. At the time, Father asserted he
        could not complete the set up for the braces without Mother’s
        consent, and Mother indicated that her consent was withheld
        because both financial issues and a desire for a second opinion.


        31. More than a year after that hearing, and three (3) years since
        the initial recommendation for braces, it does not appear that
        [Nathaniel] has yet been fitted with the recommended braces.


Court of Appeals of Indiana | Memorandum Decision 49A05-1711-DR-2671 | July 16, 2018   Page 10 of 19
        32. Parents cannot agree on simple matters like haircuts and
        showering.


        ****


        36. Mother and Father differ in their perspectives with regards to
        involvement at [Nathaniel’s] school. Currently, [Nathaniel]
        attends school at the Indiana School for the Blind and Visually
        Impaired. . . .


        37. At the time of the last hearing, [Nathaniel] was involved in
        several extra­curricular activities at [the School], and he was
        occasionally permitted to spend the night in the dorms at the
        [S]chool. However, [Nathaniel] was only allowed this privilege
        during Father’s time, as Mother believed that [Nathaniel] “has a
        perfectly good bed” at her home and that there was no reason for
        [Nathaniel] to spend the night at the [S]chool.


        ****


        38. Father has emphasized that he believes a time will come in
        [Nathaniel’s] life when he may [] need to live outside of the home
        of an immediate family member, and Father believes that slow,
        consistent introduction to a routine of being away from home
        will make any later transition necessary less traumatic to
        [Nathaniel].


        39. Since the change in custody, [Nathaniel’s] activities have
        significantly decreased and he spends increasing amounts of time
        solely with his nuclear family at Mother’s home.


        ****


                                CONCLUSIONS OF LAW
Court of Appeals of Indiana | Memorandum Decision 49A05-1711-DR-2671 | July 16, 2018   Page 11 of 19
        8. Both parents are qualified, willing, and capable to serve as
        guardians, and each parent has expressed desire, through their
        filings and testimony, to serve as guardian.


        ****


        13. Both parents have a history of acting, with genuine
        intentions, on what they believe to be in [Nathaniel’s] best
        interest.


        14. The [c]ourt is convinced that the desired improvement in
        communication and cooperation, as hoped for by [GAL Shroyer]
        while [Nathaniel] was under Mother’s authority, has not
        happened.


        15. It does appear that, following the change in schedule,
        [Nathaniel] has regressed in both language and motor skills.


        16. The [c]ourt must enter orders to encourage development of
        the incapacitated person’s self-improvement, self-reliance, and
        independence and to contribute to the incapacitated person’s
        living as normal a life as that person’s condition and
        circumstances permit without psychological or physical harm to
        the incapacitated person. . . .


        17. The parties in the matter agree, without argument, that
        [Nathaniel] will never achieve fully independent living, or self-
        reliance.


        18. However, this [c]ourt does believe that it is in [Nathaniel’s]
        best interest that he be encouraged and assisted in achieving
        whatever level of accomplishment or personal successes he is
        capable of with the assistance of those around him.


Court of Appeals of Indiana | Memorandum Decision 49A05-1711-DR-2671 | July 16, 2018   Page 12 of 19
        19. The [c]ourt considers the accomplishment of these tasks to
        be a benefit to [Nathaniel] and the development and maintenance
        of those skills, however minimal others may deem them, to be in
        his best interest as they are the closest things that [Nathaniel]
        may ever reach to an independent life and he is entitled to that
        level of dignity.


        20. The [c]ourt is concerned about the decrease, while in
        Mother’s care, in activities and increase of what the [c]ourt
        considers “sheltering” of [Nathaniel’s] at the expense of
        participation in programs and experiences he could have had
        over the last year.


        21. The [c]ourt is also concerned that Mother distances Father
        from [Nathaniel] and give preference to [Nathaniel’s] connection
        to [Mosby] and [Mosby’s] family.


        22. The [c]ourt feels strongly that it is in [Nathaniel’s] best
        interest to have and maintain strong relationships and bonds with
        all of the adults in his life as well as his siblings, cousins and
        extended family.


        23. The [c]ourt has concerns with Father’s tone in
        communication with Mother but sees modest improvements over
        the last year which indicates that the [c]ourt’s prior
        admonishments have made an impression on Father.


        24. The [c]ourt believes that, while their communication
        between each other is lacking, Mother is in a better position to be
        able to offer [Nathaniel] hands-on skill building attention on a
        daily basis as well as the temperament to address medical and
        hygienic issues for [Nathaniel] promptly and effectively.




Court of Appeals of Indiana | Memorandum Decision 49A05-1711-DR-2671 | July 16, 2018   Page 13 of 19
        25. Further, the [c]ourt believes that both parents share a realistic
        perspective and approach to making decisions that are in
        Nathaniel’s best interest for the [long-term] needs that
        [Nathaniel] will no doubt have.


        26. The [c]ourt believes strongly that it is [Nathaniel’s] best
        interest to return to a more consistent parenting time schedule,
        but still believes that the two week on/two week off schedule is
        not in [Nathaniel’s] best interest.


        27. The [c]ourt believes that Father’s proposal for week on/week
        off visitation schedule is not in [Nathaniel’s] best interest.


        28. The [c]ourt believes that it is in [Nathaniel’s] best interest
        that both parents continue to have access to information
        regarding [Nathaniel’s] medical needs and education and
        believes it is necessary, for medical care provider’s clarity, that
        they be given copies of this [c]ourt’s orders which gives each
        parent the authority to obtain information while restricting
        decision making authority to the guardian solely.


        29. For the foregoing reasons and other, this [c]ourt determines
        that it is in [Nathaniel’s] [] best interest that Mother be appointed
        sole [g]uardian of both the person and estate of Nathaniel [] and
        that Father be given [p]arenting [t]ime pursuant to the Indiana
        Parenting Time Guidelines with exchanges at a central meeting
        location to be determined by agreement of the parties.


        30. Mother is appointed to serve as [g]uardian with no other
        specific limitation so her authority than those enumerated herein
        related to the [c]ourt’s expectations as to how Mother shall
        communicate with Father and in providing for a visitation
        schedule for Father.



Court of Appeals of Indiana | Memorandum Decision 49A05-1711-DR-2671 | July 16, 2018   Page 14 of 19
       (Appellant’s App. Vol. II, pp. 7-18).


[16]   Father now appeals. Additional facts will be provided as necessary.


                               DISCUSSION AND DECISION
[17]   Father claims that the trial court committed a reversible error by failing to

       appoint a guardian ad litem to represent and protect Nathaniel’s interests during

       the guardianship proceedings. He argues that Indiana Trial Rule 17(C)

       mandates the appointment of a GAL for incompetent persons. Trial Rule

       17(C) provides, in part, that “[I]f an infant or incompetent person is not

       represented, or is not adequately represented, the court shall appoint a guardian

       [ad litem] for him.” Indiana Code section 29-3-2-3 uses the language similar to

       Trial Rule 17(C), providing, in pertinent part, that


               (a) Unless waived under subsection (b) or if section 4 of this
               chapter does not apply, the court shall appoint a guardian [ad
               litem] to represent the interests of the alleged incapacitated person
               or minor if the court determines that the alleged incapacitated
               person or minor is not represented or is not adequately
               represented by counsel. If not precluded by a conflict of interest,
               a guardian [ad litem] may be appointed to represent several
               persons or interests. The court as part of the record of the
               proceeding shall set out its reasons for appointing a guardian [ad
               litem].


[18]   Notwithstanding Father’s argument that a guardian ad litem was not appointed,

       the record demonstrates that after Mother filed her guardianship petition, and

       Father filed his cross petition on the same, the trial court appoint GAL

       Shikany. The record is silent as to whether his role was terminated following

       Court of Appeals of Indiana | Memorandum Decision 49A05-1711-DR-2671 | July 16, 2018   Page 15 of 19
       the transfer of the guardianship case into the post dissolution court and we

       believe his appointment remained active. Nonetheless, GAL Shikany did not

       testify on behalf of Nathaniel at the evidentiary hearings, nor did he file

       recommendations with the trial court.


[19]   During the guardianship hearing, evidence was presented that between the

       latest custody order in 2016 and the guardianship order in 2017, Nathaniel had

       been living with Mother, and Father was exercising parenting time on

       alternating weekends. Nathaniel, who has the mentality “of a five-to an eight-

       year-old,” was not interested in academic subjects, but he enjoyed the social

       aspect of attending the School. (Tr. Vol. II, p. 13). Both parties testified that

       prior to the custody order in 2016, Nathaniel was enrolled in several after-

       school activities. Following the custody order in 2016, Mother removed

       Nathaniel from almost all of his extra-curricular activities. Mother testified that

       Nathaniel’s social skills have not diminished, rather, they have improved over

       time. Contrary to Mother’s testimony, Father testified that Mother’s actions of

       removing Nathaniel from his extra-curricular activities, led Nathaniel’s social

       skills to diminish and he observed that Nathaniel appeared to be more

       withdrawn and agitated. Father additionally testified that he had previously

       taught Nathaniel to attend to his own bathroom needs, but he is now “back to

       asking” when he can go to the bathroom. (Tr. Vol. II, p. 237). Father blamed

       Mother for Nathaniel’s regression.


[20]   We recognize that role of a guardian ad litem is to “represent and protect” the

       best interests of an incapacitated person by researching, examining, advocating,

       Court of Appeals of Indiana | Memorandum Decision 49A05-1711-DR-2671 | July 16, 2018   Page 16 of 19
       facilitating, and monitoring the incapacitated person’s situation. See I.C. § 31-9-

       2-50. Further, Indiana Code section 29-3-8-1(b) provides, in part, that a

       guardian to “an incapacitated person is responsible for the incapacitated

       person’s care” needs, and opportunities. We find one conclusion, in

       association with others, particularly worrisome, and we believe that active input

       of a guardian ad litem was necessary under the circumstances.


[21]   While the trial court conclude that Nathaniel “would never achieve” full

       independence or self-reliance, he should be under the care of guardian who

       would encourage his “development and maintenance of those skills, however

       minimal others may deem them, to be in his best interest as they are the closest

       things that [Nathaniel] may ever reach to an independent life.” (Appellant’s

       App. Vol. II, p. 16). The trial court found Father’s testimony credible, and in

       conclusion #15, it concluded that “[I]t does appear that, following the change

       in schedule, [Nathaniel] has regressed in both language and motor skills.”

       (Appellant’s App. Vol. II, p. 15). Also, in conclusion #20, the trial court

       viewed Mother’s actions of removing Nathaniel from extracurricular activities

       as Mother’s attempt of “sheltering” Nathaniel from programs that would

       enhance his independence and life skills. (Appellant’s App. Vol. II, p. 15).


[22]   Here, the trial court took judicial notice of the evidence admitted during the

       custody proceeding, which included GAL Shroyer’s report. However, by the

       time the guardianship proceeding was held, fourteen months had passed,

       rendering that report objectively stale. Moreover, the report contained

       information regarding Nathaniel’s adjustment and experiences with a radically

       Court of Appeals of Indiana | Memorandum Decision 49A05-1711-DR-2671 | July 16, 2018   Page 17 of 19
       different custodial and parenting time arrangement. In fact, the only evidence

       heard at the guardianship hearing concerning Nathaniel’s welfare and self-

       advancement came from Mother, Father, and their respective family members,

       with each side eliciting opposite opinions as to Nathaniel’s development and

       health.


[23]   While a new guardian ad litem was appointed in the instant case, his testimony

       and report was not part of the guardianship proceedings. We believe that

       guardian ad litem’s testimony or a subsequent home study would have had a

       bearing on the trial court’s determination as to who is best suited to have

       guardianship over Nathaniel. (See Indiana Code § 29-3-5-4(7) providing that

       when selecting a guardian, the court must give “due regard” to the “best interest

       of the incapacitated person”). Based on the fact that Nathaniel’s interests were

       not adequately represented during the guardianship proceedings, we conclude

       that a reversible error occurred. On remand, we instruct the trial court to have

       GAL Shikany conduct his investigation, and a new hearing over Nathaniel’s

       guardianship to be conducted.


                                               CONCLUSION

[24]   Based on the foregoing, we hold that a reversible error occurred since

       Nathaniel’s interests were not adequately represented during the guardianship

       proceedings. On remand we instruct the trial court to have GAL Shikany, or

       other qualified GAL appointed by the trial court, to conduct an investigation

       and file their report with the trial court. After such time, a hearing shall be held

       to determine the appropriate guardian for Nathaniel.
       Court of Appeals of Indiana | Memorandum Decision 49A05-1711-DR-2671 | July 16, 2018   Page 18 of 19
[25]   Reversed and remanded with instructions.


[26]   Mathias, J. and Bradford, J. concur




       Court of Appeals of Indiana | Memorandum Decision 49A05-1711-DR-2671 | July 16, 2018   Page 19 of 19
