MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                         FILED
this Memorandum Decision shall not be                                     Jul 30 2019, 9:13 am
regarded as precedent or cited before any
                                                                               CLERK
court except for the purpose of establishing                              Indiana Supreme Court
                                                                             Court of Appeals
the defense of res judicata, collateral                                        and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANTS                                  ATTORNEY FOR APPELLEES
R. Lee Money                                             Andrew J. Noone
Greenwood, Indiana                                       Noone Law, LLC
                                                         Beech Grove, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

The Guardianship of J.H., D.H.,                          July 30, 2019
and R.H.                                                 Court of Appeals Case No.
                                                         19A-GU-406
W.B. and S.B.,
                                                         Appeal from the Marion Superior
Appellants-Respondents/Counter-                          Court
Petitioners,
                                                         The Honorable Kelly M. Scanlan,
        v.                                               Judge Pro Tempore
                                                         Trial Court Cause Nos.
J.A. and H.A.,                                           49D08-1803-GU-11272
Appellees-Petitioners/Counter-                           49D08-1804-GU-13111
Respondents                                              49D08-1804-GU-13113




Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-GU-406 | July 30, 2019                      Page 1 of 7
[1]   W.B. and S.B. (collectively, Paternal Grandparents) appeal the trial court’s

      order awarding guardianship of J.H., D.H., and R.H. (collectively, the

      Children) to J.A. and H.A. (collectively, Maternal Grandparents). Paternal

      Grandparents argue that the trial court’s order violated the constitutional rights

      of the Children’s father (Father). Finding no violation, we affirm.


                                                     Facts
[2]   J.H. is thirteen years old; D.H. is ten years old; and R.H. is eight years old. For

      approximately the first three years of J.H.’s life, the family lived with Maternal

      Grandparents. Then, they lived with Paternal Grandparents for about six

      years. At some point, the parents separated, and in May 2016, they divorced.

      Mother was given sole legal and physical custody of the Children and Father,

      who struggles with substance abuse issues, was given supervised parenting time.

      For the three years leading up to March 1, 2018, Mother and the Children lived

      with Maternal Grandparents. On March 1, 2018, Mother died.


[3]   On March 21, 2018, Maternal Grandparents filed a petition for guardianship of

      the Children. Paternal Grandparents filed a counter-petition for guardianship

      on March 23, 2018. Father is homeless, struggling with substance abuse issues,

      and has a pending criminal charge; he concedes that he is unable to care for the

      Children. While he has no safety concerns about the Children in the care of

      Maternal Grandparents, Father wants Paternal Grandparents to be appointed

      as their guardians.




      Court of Appeals of Indiana | Memorandum Decision 19A-GU-406 | July 30, 2019   Page 2 of 7
[4]   The trial court held an evidentiary hearing on the guardianship petitions on

      December 20, 2018. On January 23, 2019, the trial court granted the Maternal

      Grandparents’ petition and denied the Paternal Grandparents’ petition. In

      pertinent part, it found as follows:


              . . . The Court had the opportunity to observe the witnesses’
              demeanors and judge their credibility. . . .


                                                       ***


              3.       Both Maternal Grandparents and Paternal Grandparents
                       have stable, long-term marriages and loving relationships
                       with the Children.


                                                       ***


              9.       D.H. has asthma. Both Paternal Grandmother and
                       Paternal Grandfather smoke cigarettes in the home and in
                       the car when the Children are present. The Court finds
                       this behavior, which Paternal Grandparents have not
                       taken steps to change, quite concerning.


                                                       ***


              16.      . . . Maternal Grandparents are more attuned to and
                       proactive regarding the Children’s educational needs than
                       are Paternal Grandparents.


              17.      Maternal Grandparents provide structure and stability for
                       the Children in their home.




      Court of Appeals of Indiana | Memorandum Decision 19A-GU-406 | July 30, 2019   Page 3 of 7
        18.      The Children love vacationing with Paternal
                 Grandparents.


                                                 ***


        20.      The [guardian ad litem] . . . recommended that Maternal
                 Grandparents be appointed guardians, as in the best
                 interests of the Children, who have dealt with a significant
                 amount of upheaval in their short lives.


        21.      Factors supporting the GAL’s recommendation include
                 that the Children have transitioned seamlessly to their
                 newly built home and that the Children appear to be
                 thriving and are doing well in school.


                                                 ***


        25.      Paternal Grandparents have played a significant role in the
                 Children’s lives and have continued to have meaningful
                 contact with them.


                                                 ***


        29.      Pursuant to Indiana Code § 29-3-5-5(b), the Court, acting
                 in the best interests of a minor, may pass over a person
                 having priority and appoint a person having a lower
                 priority of consideration for appointment as guardian.


        30.      This Court has given due regard to Father’s wishes and to
                 the best interests of the Children, pursuant to Indiana
                 Code § 29-3-5-4.




Court of Appeals of Indiana | Memorandum Decision 19A-GU-406 | July 30, 2019    Page 4 of 7
               31.      The key consideration for this Court when appointing a
                        guardian over a minor is the best interest of the minor.


               32.      It is in the best interest of the Children to remain in
                        Maternal Grandparents’ home, in their current school, and
                        to benefit from the structure and stability provided by the
                        Maternal Grandparents, while maintaining frequent
                        contact with Paternal Grandparents.


      Appealed Order p. 1-3 (internal citation omitted). The trial court ordered both

      sets of grandparents to work together to arrange regular visits between the

      Children and Paternal Grandparents and ordered that Father’s parenting time

      would continue to be supervised, either at an agency or by Paternal

      Grandparents. Paternal Grandparents now appeal.


                                     Discussion and Decision
[5]   The sole argument raised by Paternal Grandparents on appeal is that, by

      overriding Father’s wishes, the trial court violated his constitutional rights as a

      parent.1


[6]   Initially, we note that “[c]onstitutional rights are personal to an

      individual . . . .” Richardson v. Richardson, 34 N.E.3d 696, 702 n.3 (Ind. Ct.

      App. 2015). As such, an alleged violation of a third party’s constitutional rights




      1
        Paternal Grandparents also argue that there is insufficient evidence supporting the trial court’s purported
      conclusion that Maternal Grandparents were the Children’s de facto custodians. But the trial court reached
      the opposite conclusion, finding that the Maternal Grandparents were not the de facto custodians. Appealed
      Order p. 3.

      Court of Appeals of Indiana | Memorandum Decision 19A-GU-406 | July 30, 2019                       Page 5 of 7
      may not be claimed by someone else. Kirkland v. State, 232 N.E.2d 365, 366,

      249 Ind. 305, 308 (Ind. 1968). Here, therefore, Paternal Grandparents do not

      have standing to raise this claim on Father’s behalf.


[7]   That said, we will briefly address their argument. In essence, Paternal

      Grandparents insist that, without exception, trial courts must defer to the

      wishes of biological parents regarding who will be their children’s guardians.


[8]   It is certainly true that parents “have a fundamental constitutional right to

      direct their children’s upbringing without undue governmental interference, and

      that a child’s best interests do not necessarily override that parental right.” In re

      Visitation of M.L.B., 983 N.E.2d 583, 586 (Ind. 2013) (emphasis added). When

      our Supreme Court declared that a child’s best interests “do not necessarily”

      override this right of their parents, it necessarily implied that sometimes, the

      parents’ rights will, indeed, be overridden. In other words, this parental right is

      not unlimited—nor should it be. Were it unlimited, the trial court would be

      obliged to bend to a parent who wanted his children to be placed under the care

      of a stranger, or a drug dealer, or a person with untreated mental health issues.


[9]   Thankfully, in this case, we have none of those extremes. Instead, we have two

      sets of loving grandparents who genuinely care for the Children and want them

      to have a safe and stable home; they simply disagree on which home that

      should be. The trial court relied on the testimony of the guardian ad litem that,

      given the significant upheaval the Children have had in their short lives, the

      most important thing for them right now is stability, which means continuing to


      Court of Appeals of Indiana | Memorandum Decision 19A-GU-406 | July 30, 2019   Page 6 of 7
       live with Maternal Grandparents, as they have for several years, and remaining

       at the same schools. It also means, of course, that the Children will continue to

       spend regular and substantial time with Paternal Grandparents, who will play

       vital roles in the Children’s lives as they process the death of their Mother and

       struggles of their Father.


[10]   The trial court explicitly took Father’s wishes into consideration. 2 It merely

       found that, in this case, the best interests of the Children override his right to

       direct their upbringing. Given this record, as well as the trial court’s right to

       weigh evidence and assess witness credibility, we find that the trial court’s order

       was not erroneous.


[11]   The judgment of the trial court is affirmed.


       Kirsch, J., and Crone, J., concur.




       2
        While Paternal Grandparents argue that Troxel v. Granville, 530 U.S. 57, 67 (2000), requires us to reach a
       different result, we note that the statute at issue in that case contained no requirement that the trial court even
       consider the parent’s wishes. Here, the trial court was required to, and did, take Father’s wishes into
       consideration. Ind. Code § 29-3-5-4(2)(A).

       Court of Appeals of Indiana | Memorandum Decision 19A-GU-406 | July 30, 2019                           Page 7 of 7
