MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                               FILED
regarded as precedent or cited before any
                                                                Jul 07 2017, 7:00 am
court except for the purpose of establishing
the defense of res judicata, collateral                             CLERK
                                                                Indiana Supreme Court
estoppel, or the law of the case.                                  Court of Appeals
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ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
R. Patrick Magrath                                       Devon M. Sharpe
Alcorn Sage Schwartz & Magrath, LLP                      William Joseph Jenner
Madison, Indiana                                         Jenner, Pattison, Sutter & Wynn,
                                                         LLP
                                                         Madison, Indiana



                                              IN THE
        COURT OF APPEALS OF INDIANA

In the Matter of the                                     July 7, 2017
Guardianship of K.E.N.G.,                                Court of Appeals Case No.
J.J.M., and A.N.B.,                                      39A04-1701-GU-170
B.M.,                                                    Appeal from the Jefferson Circuit
                                                         Court
Appellant-Respondent,
                                                         The Honorable Darrell M. Auxier,
        v.                                               Judge
                                                         Trial Court Cause Nos.
P.B.,                                                    39C01-1607-GU-32
                                                         39C01-1607-GU-33
Appellee-Petitioner.                                     39C01-1607-GU-34




Mathias, Judge.




Court of Appeals of Indiana | Memorandum Decision 39A04-1701-GU-170 | July 7, 2017      Page 1 of 10
[1]   P.B. (“Grandmother”) filed petitions to establish guardianship over her three

      minor grandchildren. B.M. (“Mother”) opposed the petitions. The Jefferson

      Circuit Court granted Grandmother’s petitions, and Mother appeals, arguing

      that the trial court’s findings do not support its judgment granting

      Grandmother’s petitions.


[2]   We affirm.


                                      Facts and Procedural History
[3]   The three children at issue are nine-year-old A.N.B., five-year-old K.E.N.G.,

      and three-year-old J.J.M.1 In April 2016, Mother and her three children were

      living with Roger Rodgers. On April 3, 2016, Rodgers repeatedly punched

      Mother in the face and dragged her down the front steps of the house while the

      children were present in the home. Mother sought help from Grandmother,

      who called the police. Mother had significant facial injuries and was

      hospitalized. As a result, she lost her job and could not afford a home.

      Grandmother offered to care for the children while Mother recovered from her

      injuries and found a new job.


[4]   On July 16, 2016, Grandmother filed petitions to establish guardianship over

      her three minor grandchildren. Mother and Grandmother initially agreed that

      Grandmother would have temporary guardianship over the children and




      1
          The children’s fathers reside in Mexico and do not provide child support for their respective children.

      Court of Appeals of Indiana | Memorandum Decision 39A04-1701-GU-170 | July 7, 2017                   Page 2 of 10
      Mother would have visitation every weekend. Mother agreed that the minor

      children would have no contact with Rodgers.


[5]   Mother generally exercised unsupervised parenting time with the children every

      weekend in her home. The children were properly cared for during Mother’s

      parenting time. Grandmother believed that Mother’s new three-bedroom home

      was appropriate for the children. After working in a factory for a few months,

      Mother accepted a new job with a local hospital in December 2016.


[6]   A hearing was held on Grandmother’s petitions to establish guardianship over

      the children on December 1, 2016. Although Grandmother believed that the

      children were well cared for during Mother’s parenting time, she suspected that

      Mother was still in a relationship with Rodgers. Mother informed the guardian

      ad litem (“GAL”) that she was no longer certain that Rodgers had battered her

      and that it may have been one of the other two men present when she was

      beaten. Mother admitted that she still communicates with Rodgers but stated

      that she is not in a relationship with him. The GAL recommended that the trial

      court grant Grandmother’s petitions after expressing concern about Mother’s

      relationship with Rodgers and the safety and stability of Mother’s home.

[7]   On December 19, 2016, the trial court issued an order granting Grandmother’s

      petitions and found in pertinent part:


              9. Mother was in a relationship with Rodger S. Rodgers for
              approximately one year. She lived with Rodgers for a few
              months prior to April of 2016.


      Court of Appeals of Indiana | Memorandum Decision 39A04-1701-GU-170 | July 7, 2017   Page 3 of 10
        10. Rodgers has an alcohol problem. Mother believes he self-
        medicates with alcohol. Rodgers would get mad at Mother when
        she requested that he stop drinking. Whenever Rodgers drank he
        would get mean. He would verbally abuse Mother calling her
        such names as stupid and bitch. Such incidents occurred
        frequently. The children were present for at least some of the
        incidents.


        11. In the early morning hours of April 3, 2016, Mother and
        Rodgers were at their home along with the three children and
        two other adults. Rodgers and the two other adults had been
        drinking heavily and Rodgers was extremely intoxicated from
        drinking whiskey and beer. Rodgers became angry because
        Mother had called her ex-husband and father of the youngest
        child. Rodgers repeatedly punched Mother in the face with a
        closed fist and dragged her down the front steps of the home
        against her will. Mother reported the events to law enforcement.
        She presented to the police officers with numerous marks and
        bruises on her arms, legs, and feet which were consistent with
        being dragged. She also had significant injuries to her face that
        were consistent with being punched in the face. Mother was
        hospitalized as a result of her injuries. Mother signed a battery
        affidavit in support of her account of the incident.


        12. Rodgers was arrested and charged with Criminal
        Confinement and Domestic Battery by Information dated April
        4, 2016. The Domestic Battery charge was enhanced due to the
        presence of the children at the time of the battery. The charges
        were still pending as of the date of the final hearing herein. At
        some point in time, Rodgers was released from custody.


        13. Mother now claims that Rodgers did not confine or batter
        her. Despite having made no such statement in her encounter
        with the police, Mother now maintains that she may have been
        drugged by one of the other adults present and, as a result,
        mistakenly identified Rogers as her attacker. There is no
Court of Appeals of Indiana | Memorandum Decision 39A04-1701-GU-170 | July 7, 2017   Page 4 of 10
        indication of Mother being in a drugged state when she made her
        initial report to the police and the Court concludes that Mother’s
        present assertions are merely an attempt to persuade the State not
        to continue its prosecution of Rodgers.


        14. Mother admits that she still cares about Rodgers. In July of
        2016, she went so far as to get a tattoo of Rodgers’ name. She
        also does not approve of the State’s continuation of its
        prosecution of Rodgers. Furthermore, she insisted that Rodgers
        be invited to her family’s Thanksgiving dinner this year. All signs
        point to the fact that Mother, despite verbal and physical abuse
        by Rodgers, continues to maintain a relationship with Rodgers.
        In short, Mother demonstrates the classic signs of battered
        women’s syndrome and is unlikely to voluntarily end her
        relationship with Rodgers.


        15. The children’s continued exposure to the verbal and physical
        abuse of their Mother at the hands of Rodgers would be highly
        detrimental to their wellbeing. One of the children has already
        been diagnosed with post-traumatic stress disorder and another
        of the children is autistic. As a result, such exposure is likely to
        have an even more detrimental effect than usual on these
        children.


        16. The Court also has concerns regarding Mother’s stability and
        her commitment to her children. As recently as September 13,
        2016, Mother sent Petitioner a text message stating that she was
        going to walk away from the children and cease visiting them.


        17. The children are safe and doing well in the custody of the
        Petitioner. She has taken steps to place the one child in therapy
        for PTSD.


Appellant’s App. pp. 24-27.


Court of Appeals of Indiana | Memorandum Decision 39A04-1701-GU-170 | July 7, 2017   Page 5 of 10
[8]    The trial court concluded that “the strong and important presumption that the

       children’s interests are best served with placement with Mother has been clearly

       and convincingly overcome by the facts set forth above and the children’s best

       interests are substantially and significantly served by placement with the

       Petitioner.” Id. at 29. The trial court granted the Grandmother’s petition and

       awarded Mother parenting time with the children “as the parties may agree” or,

       if they cannot agree, pursuant to the Indiana Parenting Time Guidelines. Id. at

       30. Mother now appeals.


                                      Discussion and Decision
[9]    Mother argues that the trial court’s findings do not support its judgment

       granting Grandmother’s petitions to establish guardianship over her three

       minor children. In general, findings and orders entered in a guardianship

       proceeding “shall be in the discretion of the court[.]” Ind. Code § 29-3-2-4(a).

       We will reverse only if the trial court’s decision is against the logic and effect of

       the facts and circumstances before the court or if the court has misinterpreted

       the law. In re Guardianship of N.R., 26 N.E.3d 97, 100 (Ind. Ct. App. 2015), aff'd

       on reh'g, 30 N.E.3d 783.


[10]   Our supreme court has recognized “the important and strong presumption that

       [a] child’s best interests are ordinarily served by placement in the custody of the

       natural parent.” In re Guardianship of B.H., 770 N.E.2d 283, 287 (Ind. 2002). To

       overcome this presumption and place the child with someone other than a

       natural parent, “a trial court must be satisfied by clear and convincing evidence


       Court of Appeals of Indiana | Memorandum Decision 39A04-1701-GU-170 | July 7, 2017   Page 6 of 10
       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 advantage to the child.” Id.


               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. A
               generalized finding that a placement other than with the natural
               parent is in a child’s best interests, however, will not be adequate
               to support such determination, and detailed and specific findings
               are required.


       Id.


[11]   Because we consider only the evidence favorable to the trial court's judgment,

       on appellate review, the appellant labors under a heavy burden, and must show

       that the trial court’s findings are clearly erroneous.” Id. at 288. Additionally,


               in reviewing a judgment requiring proof by clear and convincing
               evidence, an appellate court may not impose its own view as to
               whether the evidence is clear and convincing but must determine,
               by considering only the probative evidence and reasonable
               inferences supporting the judgment and without weighing

       Court of Appeals of Indiana | Memorandum Decision 39A04-1701-GU-170 | July 7, 2017   Page 7 of 10
               evidence or assessing witness credibility, whether a reasonable
               trier of fact could conclude that the judgment was established by
               clear and convincing evidence.


       Id.


[12]   Indiana Code section 29-3-5-3 provides that the trial court shall appoint a

       guardian for a minor if “the appointment of a guardian is necessary as a means

       of providing care and supervision of the physical person or property of the . . .

       minor.” “Necessary means ‘absolutely essential’ or ‘needed to achieve a certain

       result or effect.’” Hinkley v. Chapman, 817 N.E.2d 1288, 1291 (Ind. Ct. App.

       2004 (quoting E.N. ex rel. Nesbitt v. Rising Sun-Ohio County Community School

       Corp., 720 N.E.2d 447, 452 (Ind. Ct. App. 1999), trans. denied).


[13]   Mother argues that the guardianship was not “necessary” because the evidence

       established that she is able to properly and safely care for her children, and that

       Grandmother did not present clear and convincing evidence that the children’s

       best interests “are substantially and significantly served by placement” with

       Grandmother. See B.H., 770 N.E.2d at 287. She claims that the trial court has

       deprived her of her constitutional right to maintain “care custody and control of

       her children because the trial court believes Mother is making bad romantic

       choices.” Appellant’s Br. at 16.


[14]   The trial court found that Mother is still involved in a relationship with

       Rodgers, which is supported by the evidence. Mother now believes that she was

       possibly drugged on the date Rodgers battered her in April 2016 and that


       Court of Appeals of Indiana | Memorandum Decision 39A04-1701-GU-170 | July 7, 2017   Page 8 of 10
       another individual who was present at the time assaulted her. Tr. pp. 73-74.

       Mother also got a tattoo with Rodgers’s name in July 2016 and insisted that he

       be invited to the family’s Thanksgiving meal just days before the hearing in this

       case. Mother admitted that when she lived with Rodgers, the children were

       present on occasions when Rodgers had too much to drink and would verbally

       abuse Mother. Tr. pp. 78-79. Mother also admitted that she still cares for

       Rodgers.

[15]   In September 2016, Mother was frustrated with Grandmother, and sent a text

       message stating, “I am not going [on] another visit, officially walking away. I

       am over it.” Tr. p. 23. Mother did not see the children for a few weeks after she

       sent the message. Mother also did not respond to the GAL’s requests to visit

       her home, and the GAL does not believe that Mother has the resources to

       provide for the children’s needs on an everyday basis.


[16]   The children have special needs and require counseling. Grandmother began

       taking the oldest child to a counselor after she was placed in Grandmother’s

       care. On the date of the hearing the two oldest children were excelling in

       school, and the youngest child was enrolled in Head Start. Finally, the GAL

       recommended that the trial court grant Grandmother’s petitions for

       guardianship over the children.


[17]   Mother loves her children and is taking steps to stabilize her financial resources

       and living situation. However, for the reasons discussed above, Grandmother

       established that the guardianship is necessary and rebutted the presumption that


       Court of Appeals of Indiana | Memorandum Decision 39A04-1701-GU-170 | July 7, 2017   Page 9 of 10
       it is in the children’s best interests to be returned to their Mother’s care. We

       therefore affirm the trial court’s judgment granting Grandmother’s petitions to

       establish guardianship over the children.


[18]   Affirmed.


       Kirsch, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 39A04-1701-GU-170 | July 7, 2017   Page 10 of 10
