MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                               FILED
regarded as precedent or cited before any                                 Dec 21 2018, 10:12 am

court except for the purpose of establishing                                   CLERK
                                                                           Indiana Supreme Court
the defense of res judicata, collateral                                       Court of Appeals
                                                                                and Tax Court
estoppel, or the law of the case.


APPELLANT PRO SE
Jesus M. Chacon
Chicago, Illinois



                                          IN THE
    COURT OF APPEALS OF INDIANA

In re the Guardianship of A.D.,                         December 21, 2018

Jesus M. Chacon,                                        Court of Appeals Case No.
                                                        18A-GU-1604
Appellant-Petitioner,
                                                        Appeal from the Lake Superior
        v.                                              Court
                                                        The Honorable Thomas P.
Madelyn Dearmond and                                    Stefaniak, Judge
Clyde De La Paz, Jr.,                                   Trial Court Cause No.
                                                        45D06-1709-GU-132
Appellees-Respondents



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-GU-1604 | December 21, 2018                  Page 1 of 12
[1]   Jesus Chacon brings this pro se appeal of the trial court’s order denying his

      petition for a guardianship of his great-grandson, A.D. (Child). Chacon argues

      that the evidence does not support the denial of his petition. Finding the

      evidence sufficient, we affirm.


                                                       Facts      1




[2]   Child was born to Madelyn Dearmond (Mother) and Clyde De La Paz, Jr.

      (Father), in 2009. Sometime in 2010, Father pleaded guilty to voluntary

      manslaughter and was incarcerated at the Pendleton Correctional Facility until

      November 2016.


[3]   In 2011, Child, Mother, and Child’s sibling (Sibling) began living with Chacon

      in Chicago. After two to three weeks, Mother left for a destination not revealed

      by the record. She left Child and Sibling in Chacon’s care from 2012 through

      2017, though she maintained a relationship with Child during these years. In

      August 2013, Mother signed a notarized document consenting to Chacon

      taking Child to medical appointments. No formal guardianship was ever

      sought or granted.


[4]   While Father was incarcerated, Chacon took Child and Sibling to see Father at

      the penitentiary every two to three weeks. After Father’s release on November




      1
       Chacon has not filed an appendix or transcript in this appeal. Therefore, we must rely solely on the trial
      court’s order for the recitation of the underlying facts.
      Additionally, Chacon requested oral argument (though he did not file a motion to that effect). We hereby
      deny the request.

      Court of Appeals of Indiana | Memorandum Decision 18A-GU-1604 | December 21, 2018                 Page 2 of 12
      28, 2016, he and Mother moved into a home owned by Chacon in Whiting. In

      June 2017, Father relocated to Gary to live with his parents. At that time, there

      was a disagreement between Father, Mother, and Chacon about the custody of

      Child and Sibling. Mother and Father took Child with them to Gary and

      Chacon took Sibling home with him to Chicago. Chacon filed a petition for

      guardianship of Sibling in Chicago; that petition was denied and Sibling was

      returned to the care and custody of Mother and Father.


[5]   On September 11, 2017, Chacon filed a petition for guardianship of Child. 2

      Mother and Father contested the petition. On October 11, 2017, the trial court

      granted Chacon temporary guardianship of Child. Since that time, Child has

      been living with Chacon in Chicago, and Mother and Father have been

      exercising parenting time.


[6]   The final guardianship hearing took place on December 20, 2017, and January

      31, 2018. Chacon, Mother, and Father testified at the hearing. Chacon based

      his guardianship request on several factors:


             • Mother’s history of problems with alcohol, including a 2014 arrest for
               public intoxication.
             • Child’s educational and medical needs. Child has an Individualized
               Education Program (IEP) in Chicago and has been diagnosed with
               Attention Deficit/Hyperactivity Disorder (ADHD) and is medicated for
               that condition.




      2
          Chacon first filed the guardianship petition in Chicago; that petition was denied for lack of jurisdiction.


      Court of Appeals of Indiana | Memorandum Decision 18A-GU-1604 | December 21, 2018                      Page 3 of 12
    • Father’s criminal history.

On April 30, 2018, the trial court issued an order denying the guardianship

petition. The trial court made the following findings of fact:


        24.     . . . Mother has had problems with alcohol abuse in the
                past but is currently receiving counseling for her
                dependency on alcohol. Mother submitted three (3)
                toxicology reports to the Court that showed Mother tested
                negative for any drugs on all three (3) reports but that
                Mother tested positive for alcohol on one (1) of the
                toxicology reports.


                                                ***


        27.     Mother testified that in August 2017, she enrolled Minor
                Child in [a charter school in Gary] and that he attended
                said school until he was returned to Great Grandfather in
                October of 2017. Mother testified that Minor Child was
                doing well at the charter school; that she did not believe
                that Minor Child needed an IEP; that she did not inform
                [the school] that Minor Child had had an IEP at his prior
                school or that Minor Child was diagnosed with ADHD
                and had been on medication for ADHD.


        28.     Mother further testified that she did not believe that Minor
                Child needed counseling or medication and that she did
                not believe that Minor Child has ADHD; and, that she
                took Minor Child for a physical examination prior to the
                beginning of the school year. . . .


        29.     Mother admitted that during the time that Minor Child
                attended the Chicago Public School system, she had no
                contact with any of Minor Child[’]s teachers; had not gone

Court of Appeals of Indiana | Memorandum Decision 18A-GU-1604 | December 21, 2018   Page 4 of 12
                to any of Minor Child[’]s parent-teacher meetings; had not
                made any inquiries regarding Minor Child[’]s IEP; and,
                had not discussed Minor Child[’]s progress with any of the
                school officials.


        30.     Mother works part-time at a nursing home.


                                                ***


        32.     Father testified that if given custody of Minor Child, he
                would take Minor Child to a doctor for further
                examination on his ADHD diagnosis and would follow
                the recommendations of said doctor.


        33.     Father testified that he will be on parole until 2019.
                Pursuant to Father[’]s parole, Father has to submit to
                random drug testing, pay fees, be employed and not have
                any new arrests or charges.


        34.     Father testified that he has passed all of [the] random drug
                tests, that he is employed and has not had any violations of
                his parole.


        35.     Father testified that he was grateful for Great
                Grandfather[’]s assistance while Father was incarcerated
                but that he was ready and able to care for Minor Child and
                no longer needed Great Grandfather[’]s help.




Court of Appeals of Indiana | Memorandum Decision 18A-GU-1604 | December 21, 2018   Page 5 of 12
Appellant’s Br. p. 17-18.3 Based on its findings of fact, the trial court made the

following conclusions of law:


         2.       Given the facts and circumstances, the Court concludes
                  that:


                  a.        Mother and Father are willing and able to provide
                            the proper and necessary care for Minor Child.


                  b.        Mother and Father reside in a home with paternal
                            grandparents along with [Sibling].


                  c.        Mother and Father are both employed.


                  d.        Mother voluntarily relinquished to Great
                            Grandfather the custody and care of Minor Child
                            from 2012 through 2017. . . . However, Mother
                            continued to have some communication and
                            contact with Minor Children.


                  e.        In June 2017 through October 2017, Minor Child
                            lived with Mother and Father, attended school, and
                            appeared to be doing well.


                  f.        Father did not voluntarily relinquish the custody
                            and care of Minor Child while he was incarcerated
                            from 2011 through 2016; and, during Father[’]s
                            incarceration, Great Grandfather traveled Five
                            Hundred (500) miles round trip, every two (2) to



3
  Chacon did not file the appealed order as its own document and, as noted above, there is no appendix. He
instead appended the appealed order to his brief. To ensure that the order is easily located, we will cite to its
pagination within the Appellant’s Brief.

Court of Appeals of Indiana | Memorandum Decision 18A-GU-1604 | December 21, 2018                    Page 6 of 12
                         three (3) weeks, at least One Hundred and Fifty
                         (150) times, to take Minor Child and Sibling to see
                         Father at the penitentiary thus enabling Father to
                         continue to have a relationship with Minor Child
                         throughout his incarceration. When Father was
                         released from prison in 2016, father continued to
                         have a relationship with Minor Child.


                                                    ***


                h.       Although Minor Child was in the care of Great
                         Grandfather for a majority of his young life, Minor
                         Child has had continuing contact with Father and to
                         some extent with Mother.


                                                ***


        3.      The Court finds and concludes . . . that it is in the best
                interest of Minor Child to be placed with Mother and
                Father for the following reasons:


                a.       Mother and Father have a stable home with Minor
                         Child[’]s sibling and paternal grandparents in Gary,
                         Indiana.


                b.       Mother is employed part-time at a nursing home.


                c.       Father is employed and is abiding by all of his
                         parole conditions . . . .


                d.       Minor Child had continued contact with Father
                         throughout Father[’]s incarceration.



Court of Appeals of Indiana | Memorandum Decision 18A-GU-1604 | December 21, 2018   Page 7 of 12
                      e.       Minor Child lived with Mother and Father from
                               June 2017 through October 2017 and was enrolled
                               in school.


                      f.       Mother and Father have demonstrated an ability to
                               more than adequately meet the needs of Minor
                               Child and to provide sufficient support.


                      g.       While Father was incarcerated, Great Grandfather
                               maintained a stable lifestyle for Minor Child, which
                               allowed Minor Child to thrive and properly develop
                               physically, cognitively, and socially.


      Id. at 18-19. The trial court denied the petition, ordered that Child be returned

      to his parents’ care and custody immediately, and ordered that the parents

      inform Child’s school about the IEP, request an assessment at his school, and

      follow the recommendations of the assessment. The trial court also ordered

      grandparent visitation with Child one Sunday per month. Finally, the trial

      court ordered that the parents ensure that Child takes his prescribed ADHD

      medication, take Child and his medical records (to be provided by Chacon) to a

      doctor for a complete medical assessment, and comply with the doctor’s

      recommendations. Chacon now appeals.


                                   Discussion and Decision
[7]   Chacon argues, essentially, that the evidence does not support the trial court’s

      order denying his guardianship petition. Generally, all guardianship findings,

      orders, and proceedings are committed to the sound discretion of the trial court.

      Ind. Code § 29-3-2-4(a). Moreover, there is a strong preference for granting

      Court of Appeals of Indiana | Memorandum Decision 18A-GU-1604 | December 21, 2018   Page 8 of 12
      latitude and deference to our trial judges in family law matters. In re

      Guardianship of I.R., 77 N.E.3d 810, 813 (Ind. Ct. App. 2017). Because Chacon

      had the burden of proof at the guardianship hearing, he is appealing from a

      negative judgment, meaning that he must show on appeal that the evidence

      points unerringly to a conclusion opposite that reached by the trial court. In re

      J.C., 735 N.E.2d 848, 849 (Ind. Ct. App. 2000). We will reverse a negative

      judgment only if it is contrary to law, and in making our determination, we will

      neither reweigh the evidence nor assess witness credibility and will consider

      only the evidence and inferences most favorable to the prevailing party. Id.


[8]   Our Supreme Court has explained that we review child placement disputes

      between natural parents and third parties with a strong presumption in favor of

      placement with the parents:


              Despite the differences among Indiana’s appellate court decisions
              confronting child placement disputes between natural parents
              and other persons, most of the cases generally recognize the
              important and strong presumption that the child’s best interests
              are ordinarily served by placement in the custody of the natural
              parent. This presumption does provide a measure of protection
              for the rights of the natural parent, but, more importantly, it
              embodies innumerable social, psychological, cultural, and
              biological considerations that significantly benefit the child and
              serve the child’s best interests. To resolve the dispute in the
              caselaw regarding the nature and quantum of evidence required
              to overcome this presumption, we hold that, before placing a
              child in the custody of a person other than the natural parent, a
              trial court must be satisfied by clear and convincing evidence that
              the best interests of the child require such a placement. The trial
              court must be convinced that placement with a person other than
              the natural parent represents a substantial and significant
      Court of Appeals of Indiana | Memorandum Decision 18A-GU-1604 | December 21, 2018   Page 9 of 12
              advantage to the child. The presumption will not be overcome
              merely because a third party could provide the better things in life
              for the child. In a proceeding to determine whether to place a
              child with a person other than the natural parent, evidence
              establishing the natural parent’s unfitness or acquiescence, or
              demonstrating that a strong emotional bond has formed between
              the child and the third person, would of course be important, but
              the trial court is not limited to these criteria. The issue is not
              merely the “fault” of the natural parent. Rather, it is whether the
              important and strong presumption that a child’s interests are best
              served by placement with the natural parent is clearly and
              convincingly overcome by evidence proving that the child’s best
              interests are substantially and significantly served by placement
              with another person. This determination falls within the sound
              discretion of our trial courts, and their judgments must be
              afforded deferential review.


      In re Guardianship of B.H., 770 N.E.2d 283, 287 (Ind. 2002) (internal quotation

      marks and citation omitted).


[9]   Chacon’s argument focuses solely on questioning the parents’—primarily,

      Mother’s—truthfulness and credibility, citing to evidence outside the record,

      and describing events that have apparently taken place since the appealed order

      was entered. We may not and will not base our ruling on any of these

      arguments. Moreover, as noted above, there is neither a transcript nor an




      Court of Appeals of Indiana | Memorandum Decision 18A-GU-1604 | December 21, 2018   Page 10 of 12
       appendix included in the record on appeal; consequently, we are left only with

       the appealed order itself to review.4


[10]   The trial court found, based on the evidence before it, that Mother and Father

       are both employed, that Father is complying with the terms of his parole, that

       they have a stable home, that they each (to varying degrees) maintained

       relationships with Child during the years he lived with Chacon, and that Child

       was well cared for during the months he lived with his parents. Given these

       findings and the strong presumption in favor of placement with natural parents,

       we cannot say that the trial court erred by denying Chacon’s guardianship

       petition.


[11]   Child (and his parents) are very lucky that Chacon was able and willing to step

       in as his custodian during the years when the parents were absent. Chacon is

       clearly acting with sincere love and concern for Child. But at this point, the

       trial court found that it is time for Child’s parents to step back in and resume

       their roles as his caregivers. Nothing in Chacon’s brief or the trial court’s order

       leads us to conclude that this decision was erroneous.




       4
        We note that to the extent that Chacon argues that Mother and Father have not complied with the trial
       court’s orders regarding Child’s IEP and ADHD medication, the proper course of action would be to file a
       motion with the trial court. This Court is unable to review such claims.

       Court of Appeals of Indiana | Memorandum Decision 18A-GU-1604 | December 21, 2018             Page 11 of 12
[12]   The judgment of the trial court is affirmed.


       May, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-GU-1604 | December 21, 2018   Page 12 of 12
