MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                           FILED
this Memorandum Decision shall not be                                       Dec 20 2017, 10:01 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 APPELLANT                                       ATTORNEYS FOR APPELLEE
Glen E. Koch II                                              Curtis T. Hill, Jr.
Boren, Oliver & Coffey, LLP                                  Attorney General of Indiana
Martinsville, Indiana
                                                             Robert J. Henke
                                                             Katherine A. Cornelius
                                                             Deputy Attorneys General
                                                             Indianapolis, Indiana



                                              IN THE
     COURT OF APPEALS OF INDIANA

In the Matter of the                                         December 20, 2017
Guardianships of Ja.R.J,1 Je.R.J,                            Court of Appeals Case No.
and Ju.R.J., Minor Children,                                 40A01-1706-GU-1297
H.L.R.,                                                      Appeal from the
                                                             Jennings Circuit Court
Appellant-Petitioner,
                                                             The Honorable
         v.                                                  Jon W. Webster, Judge




1
  We recognize that H.L.R. is not appealing the juvenile court’s denial of his petition for guardianship as to
minor child Ja.R.J. However, because Ja.R.J. was one of three siblings over whom H.L.R. had requested
guardianship appointment at the trial court level (Cause Nos. 40C01-1608-GU-28, -29, -30), we find it
appropriate to include her in the caption pursuant to Indiana Trial Rule 17(A), which provides that a party of
record in the trial court shall be a party on appeal.

Court of Appeals of Indiana | Memorandum Decision 40A01-1706-GU-1297 | December 20, 2017             Page 1 of 14
      Indiana Department of Child                             Trial Court Cause Nos.
      Services,                                               40C01-1608-GU-29
                                                              40C01-1608-GU-30
      Appellee-Intervenor.




      Kirsch, Judge.


[1]   H.L.R. sought to be appointed as guardian for his former step-grandchildren,

      three siblings: Ja.J., Je.J, and Ju.J. The trial court denied his request, and

      H.L.R. now appeals that decision as to Je.J. and Ju.J. (together, “Brothers”).

      He raises one issue that we restate as: whether the trial court’s decision to deny

      H.L.R.’s petitions to establish guardianship over Brothers was contrary to law.


[2]   We affirm.


                                 Facts and Procedural History
[3]   H.L.R. (“Proposed Guardian”) was, for a time, married to Brothers’ maternal

      grandmother, K.R. (“Grandmother”). Their marriage was dissolved in 2014.

      At that time, Brothers and their sister Ja.J. (together, “the Children”), all

      minors, were living with their biological father, J.R.J., Sr. (“Father”) and his

      wife (“Stepmother”). In 2011, Father had been awarded legal custody of the




      Court of Appeals of Indiana | Memorandum Decision 40A01-1706-GU-1297 | December 20, 2017   Page 2 of 14
      Children, when Ja.J was five years old, Je.J. was two, and Ju.J. was one.2

      Their biological mother S.W. (“Mother”) abused drugs and was only

      sporadically in their lives. At all relevant times, Proposed Guardian lived near

      Father’s residence, and he saw the Children on a regular basis, such as on

      weekends and attending their extracurricular activities and events, as well as

      holidays and birthdays.


[4]   Father was engaged in dealing drugs, including in his home and in the

      Children’s presence. In early April 2014, Stepmother ingested

      methamphetamine that Father had given her, was hospitalized, and died. The

      Indiana Department of Child Services (“DCS”) removed the Children from

      Father’s home on April 10, 2014 on allegations of illegal drug use and domestic

      battery. On April 11, 2014, Father was arrested on federal criminal drug

      charges; he has been continuously incarcerated since his arrest.


[5]   DCS filed a child in need of services (“CHINS”) petition for each of the

      Children, and they were placed for some months with Mother’s sister, and then

      due to her family obligations, the Children were placed with a foster family. In

      January 2015, the trial court adjudicated the Children as CHINS, and, in

      February 2015, it issued a dispositional order and parenting participation order.

      By June 2015, the trial court changed the permanency plan from reunification

      to termination of parental rights. In 2015, the Children exercised some visits




      2
          Ja.J. was born in August 2004, Je.J. was born in April 2007, and Ju.J. was born in July 2008.


      Court of Appeals of Indiana | Memorandum Decision 40A01-1706-GU-1297 | December 20, 2017            Page 3 of 14
      with Mother, although she would relapse and disappear for periods of time. In

      January 2016, Mother died. In March 2016, Father was found guilty after a

      federal jury trial of Conspiracy to Distribute 300 Grams or More of

      Methamphetamine (Causing Death) and Distribution of Methamphetamine

      (Causing Death). Father received two concurrent life sentences for the

      convictions.3


[6]   On February 1, 2016, DCS filed a petition for termination of Father’s parental

      rights. At that time, the Children were still with the foster family where they

      had originally been placed, and they remained there throughout the CHINS

      and termination proceedings. The Children exercised some visits with

      Proposed Guardian on weekends at times that he coordinated with the foster

      mother; Ja.J. participated in those for a short time, but then quit going for

      visitation with Proposed Guardian.


[7]   On August 8, 2016, the Proposed Guardian, who was the Children’s ex-step-

      grandfather, filed three petitions for guardianship, one for each of the three

      Children, and Father consented to the guardianship. DCS filed a motion to

      intervene, which the trial court granted. The trial court held a consolidated

      hearing on DCS’s termination of parental rights petitions and on Proposed

      Guardian’s petitions for guardianship of the Children. The hearing began on




      3
        Father’s appeal of his convictions and sentence was pending at the time of the termination hearing in
      February and April 2017; however, the Seventh Circuit Court of Appeals affirmed his convictions and
      sentence on August 4, 2017. United States v. Maggard, 865 F.3d 960 (7th Cir. 2017).

      Court of Appeals of Indiana | Memorandum Decision 40A01-1706-GU-1297 | December 20, 2017         Page 4 of 14
      February 17, 2017, and, due to time constraints, was concluded on April 11,

      2017.


[8]   At the hearing, Father acknowledged that the Children had suffered trauma in

      their lives and that they needed a permanent home, but he preferred that the

      Children be placed in guardianship with Proposed Guardian, rather than

      terminate his parental rights. Tr. Vol. II at 35. Father testified that Proposed

      Guardian had “always been a sense of security” in the Children’s lives and that

      his home was “right down the street” from Father’s. Id. at 28, 36. About the

      Proposed Guardian, Father said, “[the Children] love him.” Id. at 35. Father

      did not want the Children to feel that he had abandoned them and wanted to be

      able to communicate with them, which Proposed Guardian had indicated

      Father could do if he were to receive guardianship of the Children.


[9]   Among others, DCS called as witnesses Sherry Moore (“Moore”), who was the

      Children’s therapist at Life Springs, and Melanie Young (“Young”), who was

      the Children’s case manager at Life Springs. Moore began seeing the Children

      in November 2014. When she first saw them, they had “[a] lot of trauma which

      presented with anger. They would shut down a lot. [Ja.J] especially was

      angry.” Id. at 49. She elaborated:


              Their trauma was considered chronic because of the exposure to
              drugs, witnessing drug use, witnessing people in and out of the
              house, seeing you know drugs being sold, the death of their
              stepmother was another issue that they were dealing with,
              incarceration of their father, removal of the home, they had two



      Court of Appeals of Indiana | Memorandum Decision 40A01-1706-GU-1297 | December 20, 2017   Page 5 of 14
               placements — they were with their aunt, then they went into
               foster care[.]


       Id. Moore also noted that their foster father died from cancer sometime in

       2016. Moore testified that Ja.J. still experienced anxiety, worrying about what

       was going to happen to her and her brothers, and that because she was the

       caregiver for her brothers for so long, she struggled with being a sister and not a

       mother. Moore said that Ja.J. had indicated “on numerous occasions” that she

       wanted a home “with a mom and a dad,” so that she could be a kid like others

       her age and not a mother. Id. at 55. The brothers had been diagnosed with

       ADHD and oppositional defiant disorder, which includes aggression and

       inability to regulate emotions. Moore stated that Je.J. internalizes everything

       and had made less progress because “he holds everything in.” Id. at 51. Ju.J.

       also has reactive attachment disorder, caused by not having his needs met when

       he was younger, so he experienced difficulty getting along with people in social

       situations and had been hospitalized on four occasions due to outbursts and

       behavior issues. Id. at 52.


[10]   Moore said that Proposed Guardian had participated in some of the Children’s

       therapy sessions, but that Ja.J. did not always want to be in the session if he

       was there, and Ja.J. refused to go to his house for visits. Ja.J. expressed to

       Moore that returning to the same county, school, and area where she lived with

       Father would be “re-traumatizing to her all over again.” Id. at 56. Moore was

       aware that DCS had identified a possible adoptive family, consisting of a

       mother and father and children, and that the Children had told her that they

       Court of Appeals of Indiana | Memorandum Decision 40A01-1706-GU-1297 | December 20, 2017   Page 6 of 14
       “loved going over there” and “wish[ed] they could be adopted by that family.”

       Id. at 58.


[11]   Young, in her job as a case manager at Life Springs, helped to teach social skills

       and coping skills. She provided services to the Children in school and out of

       school, in the community, to work on social skills and getting along with

       others, giving prompts to the Children to avoid getting into physical or verbal

       altercations with peers or teachers. She began working with Ju.J. in November

       2014 and with Ja.J. and Je.J. in July 2015. She said Ja.J. was doing well and

       that Je.J. was struggling, but had improved. Young shared that Ju.J. was “back

       to full days at school,” as he had been only attending partial days due to

       disruptive behaviors in the classroom. Id. at 63. She testified, “They absolutely

       need to continue services,” having made gains but requiring continued

       reinforcement. Id.


[12]   Although Young had not been present at any visits between Brothers and

       Proposed Guardian, she indicated that she had concerns about placing the

       Children with him due to the fact that there would not be a mother in the

       house, stating that both Ja.J., as well as Brothers, “need a strong female role

       model” in the house. Id. at 64. Moore was aware of a possible family that

       might be interesting in adopting the Children and that the Children had visited

       with the family.


[13]   DCS family case manager Debra Scatterfield (“FCM Scatterfield”) also

       testified. She became involved in the case in May 2014, after the initial removal


       Court of Appeals of Indiana | Memorandum Decision 40A01-1706-GU-1297 | December 20, 2017   Page 7 of 14
       and assessment, and was the family case manager on the case until August or

       September 2015, when family case manager Ryan Matern (“FCM Matern”)

       took over the case, but FCM Scatterfield remained on the case as his supervisor.

       FCM Scatterfield described the Children’s emotional, mental, and behavioral

       issues when she was assigned to the case, their respective diagnoses, as well as

       their progress and current status. During her time as FCM on the case,

       Scatterfield arranged some visitations with Mother during 2015, until Mother

       passed away in January 2016. She said that Proposed Guardian did not have

       any visitations with the Children during her time as FCM. Id. at 47.


[14]   FCM Matern, who assumed responsibility on the case in or around September

       2015, also testified. He stated that Brothers had been having visits during

       weekends, generally for five hours or so, with Proposed Guardian for

       approximately a year, but that Ja.J. was not willing to participate in those visits.

       FCM Matern opined that termination, not the proposed guardianship, was in

       the Children’s best interests because (1) Ja.J. did not want to visit with

       Proposed Guardian, and (2) DCS was concerned about having the Children

       return to the same area “where everything went down[,]” referring to the drug

       activity, arrest of their Father, and removal from his home. Id. at 72. DCS

       wanted the Children to have a “fresh start in a different place or with a new

       family.” Id.


[15]   After DCS rested its case, Proposed Guardian and Grandmother testified.

       Proposed Guardian was then fifty-one years old, was steadily employed for

       seventeen or eighteen years, lived alone, and had no criminal convictions.

       Court of Appeals of Indiana | Memorandum Decision 40A01-1706-GU-1297 | December 20, 2017   Page 8 of 14
       Proposed Guardian testified that, for approximately a year, he had been having

       visits during most weekends for five hours or so with Brothers and that there

       had been no problems. Proposed Guardian indicated that his visits with Ja.J.

       “stopped a good while back,” but he said he did not know why, stating, “I have

       no idea, she doesn’t act like the same [Ja.J.].” Id. at 84, 89. He presented

       pictures of his home and a van he purchased so that he could easily transport

       the Children. Proposed Guardian testified to attending the Children’s activities

       and sporting events. He said that, if he were to be awarded guardianship, he

       would want the Children to stay in the same school that they were currently

       attending, although he currently did not reside or work in that county.

       Proposed Guardian stated that, if he were to be awarded guardianship, he

       would move his residence to the county where the Children were attending

       school. When asked who would care for the Children while he was at work,

       third shift, he stated that Grandmother would babysit them while he was at

       work, although she too lived in a different county from where the Children

       were then attending school, and that he might seek to change from working

       third shift.


[16]   Grandmother testified that she would, if asked, be willing to babysit for the

       Children at Proposed Guardian’s home, if he were awarded guardianship of

       them. Grandmother had gone to Proposed Guardian’s home on some

       occasions to visit with Brothers when they were at his home. She said that Ja.J.

       had come for a few visits, but then stopped visiting, although she did not know

       the reason why Ja.J. did not want to participate in visits with Proposed


       Court of Appeals of Indiana | Memorandum Decision 40A01-1706-GU-1297 | December 20, 2017   Page 9 of 14
       Guardian. When asked if she had any concerns with the proposed

       guardianship, Grandmother said, “Yeah I do[,]” stating that sometimes there is

       yelling and arguing at Proposed Guardian’s home, which sometimes is between

       her and Proposed Guardian, but sometimes Brothers get into it as well. Id. at

       97-98. She opined, “[T]hey’ve been around enough of the yelling and arguing”

       and “I don’t think they need to be associated with any of that.” Id. at 99.

       Grandmother testified that in her opinion the three Children “should stay

       together” and not be separated through any guardianship or adoption. Id. at

       100, 102.


[17]   The trial court asked the parties to submit proposed findings and conclusions as

       to the termination and guardianship, and it took the matter under advisement.

       On May 15, 2017, it issued its Order4 Denying Petition for Appointment of

       Guardian Over Minors (“Order”).5 Proposed Guardian now appeals the trial

       court’s refusal to appoint him as guardian for Brothers, Je.J. and Ju.J.


                                         Discussion and Decision
[18]   In this case, where Father had received two concurrent life sentences and

       Mother was deceased, the trial court was presented with competing options for




       4
        We note that the juvenile court issued a separate order for each of the three Petitions, but because the orders
       are identical other than the child’s name in the caption, we will, for ease and clarity, refer to the three orders
       collectively as one “Order.”
       5
        On May 18, 2017, the juvenile court issued an Order Terminating Parental Rights of Father, and Father
       appealed. This court will address Father’s appeal of the termination of his parental rights by separate
       decision.

       Court of Appeals of Indiana | Memorandum Decision 40A01-1706-GU-1297 | December 20, 2017 Page 10 of 14
the Children’s placement: (1) terminate Father’s parental rights, allowing DCS

to move forward with adoption; or (2) grant Proposed Guardian’s request for

guardianship of the Children. In Indiana, any person may file a petition for the

appointment of a guardian for an incapacitated person or a minor. Ind. Code §

29-3-5-1(a). Indiana Code section 29-3-5-3, concerning appointment of a

guardian, provides in relevant part:


        (a) Except under subsection (c), if it is alleged and the court finds
        that:


                (1) The individual for whom the guardian is sought is an
                incapacitated person or a minor; and


                (2) The appointment of a guardian is necessary as a means
                of providing care and supervision of the physical person or
                property of the incapacitated person or minor;


        The court shall appoint a guardian under this chapter.


        ....


        (c) If the court finds that it is not in the best interests of the
        incapacitated person or minor to appoint a guardian, the court
        may:


        ....


                (2) enter any other appropriate order; or


                (3) dismiss the proceedings.


Court of Appeals of Indiana | Memorandum Decision 40A01-1706-GU-1297 | December 20, 2017 Page 11 of 14
       The court is to give due regard to, among other things, the best interest of the

       child. Ind. Code §§ 29-3-5-3(c), 29-3-5-4(8).


[19]   After a two-day hearing and taking the matter under advisement, the trial court

       denied Proposed Guardian’s petitions for guardianship of the Children.

       Generally speaking, all guardianship findings, orders, and proceedings are

       committed to the sound discretion of the trial court. Ind. Code § 29-3-2-4(a).

       We therefore review guardianship decisions for an abuse of discretion, which

       occurs if the 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). Where, as here,

       the trial court did not enter specific findings of fact, a general judgment

       standard applies. In re B.J.N., 19 N.E.3d 765, 769 (Ind. Ct. App. 2014). We

       may affirm a general judgment on any theory supported by the evidence at trial.

       Id. Because Proposed Guardian had the burden of proof at trial, he is appealing

       from a negative judgment. A party appealing from a negative judgment must

       show 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 where the trial court’s decision is contrary

       to law. Indiana Dep’t of Child Servs. v. J.D., 77 N.E.3d 801, 806 (Ind. Ct. App.

       2017), trans. denied. In determining whether a negative judgment is contrary to

       law, we neither reweigh the evidence nor judge the credibility of witnesses, and

       consider only the evidence most favorable to the prevailing party, together with

       all reasonable inferences flowing therefrom. J.C., 735 N.E.2d at 849.


       Court of Appeals of Indiana | Memorandum Decision 40A01-1706-GU-1297 | December 20, 2017 Page 12 of 14
[20]   On appeal, Proposed Guardian readily acknowledges the numerous traumas

       that Brothers, indeed all three of the Children, have suffered, including

       witnessing the sale and use of drugs, removal from their home, Stepmother’s

       death, Father’s life sentences of federal incarceration, DCS placements with a

       maternal aunt and then a foster family, Mother’s death, and the death of their

       foster father. Proposed Guardian argues that, while DCS believes that the best

       interests of Brothers would be served “by resetting their lives,” it would be a

       disservice to Brothers, and not in their best interests, to try to erase the boys’

       “relationship and bond with their ex-step-grandfather and their grandmother.”

       Appellant’s Br. at 9. Proposed Guardian urges that he has been involved in their

       lives since birth and has been a source of stability, and, moreover, placement

       with him would allow Brothers to visit Grandmother. A guardianship, he

       argues, would thus retain “the remainder of the family bonds” and is preferable

       to adoption by a family who is unfamiliar to Brothers. Id. at 13.


[21]   The trial court heard and considered Proposed Guardian’s testimony

       concerning his continuing bond with Brothers, his home, his steady

       employment, his lack of criminal history, and his willingness to move his

       residence if he received guardianship. In addition, the trial court was presented

       with DCS’s evidence that these particular Children need placement in a home

       with a mother and a father, that the three Children get along well with each

       other and share a bond, and that Ja.J. has anxiety about what is going to

       happen to her and her brothers. Moore testified that, at least as to Ja.J., going

       back to the same neighborhood where they lived with Father and witnessed


       Court of Appeals of Indiana | Memorandum Decision 40A01-1706-GU-1297 | December 20, 2017 Page 13 of 14
       drug sales and abuse would be re-traumatizing. Proposed Guardian had been

       having visits with Brothers for the year or so preceding the hearing, but Ja.J.

       was unwilling to join for those visits, and she also would not participate in

       therapy if Proposed Guardian was present. Father testified that Proposed

       Guardian would allow Father to communicate with the Children, but evidence

       was presented that the Children rarely speak of Father and have not responded

       to his letters. FCM Matern testified that he was aware of the proposed

       guardianship, but that, in his opinion, termination and adoption, was in the

       Children’s best interests. Grandmother felt that the three Children should stay

       together, and not be separated, and she acknowledged that she had concerns

       about the Children being placed with Proposed Guardian due to arguing

       occurring between him and her, in which Brothers sometimes became involved.


[22]   The trial court heard and considered the evidence, judged the credibility of the

       witnesses, and determined that the best interests of the Children was

       termination of parental rights, and not guardianship. Given the record before

       us, and our deferential standard of review, we cannot say that the evidence

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

       trial court’s decision to deny Proposed Guardian’s petitions for appointment of

       guardianship of Je.J. and Ju.J was not contrary to law.


[23]   Affirmed.


       Najam, J., and Brown, J., concur.



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