MEMORANDUM DECISION
                                                                   Jun 02 2015, 8:53 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



APPELLANT PRO SE                                          ATTORNEY FOR APPELLEE
Alicia Emanuele                                           Thomas M. Barr
Nineveh, Indiana                                          Nashville, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA
Amanda and Joseph Emanuele and                           June 2, 2015
                                                         Court of Appeals Case No.
Alicia Emanuele,                                         41A01-1409-GU-397

Appellants-Petitioners,                                  Appeal from the Johnson Superior
                                                         Court.
        v.                                               The Honorable Kevin M. Barton,
                                                         Judge.

Winford E. Moore, III,                                   Cause No. 41D01-1404-GU-49 &
                                                         41D01-1405-JP-92
Appellee-Respondent.




Riley, Judge.




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                                   STATEMENT OF THE CASE

[1]   Appellants-Petitioners, Joseph A. Emanuele and Amanda K. Emanuele

      (Grandparents), and Appellant-Respondent, Alicia R. Emanuele (Mother),

      appeal the trial court’s Order denying Grandparents’ petition for permanent

      guardianship of Mother’s minor child, Ava M. Emanuele-Moore (Child), and

      awarding custody of the Child to her biological father, Appellee-

      Petitioner/Respondent, Winford E. Moore, III (Father).


[2]   We affirm.


                                                    ISSUES

[3]   Grandparents and Mother raise four issues on appeal, which we consolidate

      and restate as the following three issues:

      (1) Whether the trial court erred in denying Grandparents’ petition for

      guardianship;

      (2) Whether the trial court implied an improper standard in light of

      Grandparents’ status as the Child’s de facto custodians; and

      (3) Whether the trial court abused its discretion by proceeding without the

      recommendation of a court appointed special advocate (CASA).


                           FACTS AND PROCEDURAL HISTORY

[4]   In the latter part of 2009, high school students—Father and Mother—began

      dating, and Mother soon became pregnant. On March 13, 2010, the Child was

      born two months premature. Father was present for the Child’s birth, and two

      days later, he executed a paternity affidavit claiming to be the Child’s biological




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      father. Because no court order for custody was ever entered, pursuant to

      Indiana Code section 31-14-13-1, Mother has had sole legal custody.


[5]   Due to the Child’s premature birth, she could not be taken home from the

      hospital until she was approximately one and one-half months old. During her

      hospitalization in Indianapolis, Indiana, both Father and Mother stayed by the

      Child’s side. When the Child was released, Father and Mother attempted to

      live together as a family in Grandparents’ home in Nineveh, Johnson County,

      Indiana. Father was very active in the Child’s care—feeding, bathing, and

      changing her. When Father and Mother ended their relationship, Father

      moved back to his house in Morgantown, Brown County, Indiana, and per an

      informal agreement, the Child spent every other weekend with him. Since

      birth, the Child has primarily lived with Mother in Grandparents’ house, and

      Grandparents have provided a significant amount of care and support for the

      Child. However, at various intervals during the first four years of the Child’s

      life, Father and Mother reconciled their relationship, during which times

      Mother and the Child lived in Father’s house. Regardless of the relationship

      status of Father and Mother at any given point, it is undisputed that Father

      maintained an active involvement in the Child’s life. Although Father has

      never paid any formal child support to Mother or Grandparents, he consistently

      paid for one-half of the Child’s daycare expenses and purchased clothing and

      other items for the Child.


[6]   Shortly after the Child was born, Mother developed a substance abuse problem.

      Once when the Child was eight months old, Father discovered Mother and




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      three men sitting in a parked vehicle, crushing and snorting Mother’s

      prescription pain medicine and smoking cigarettes, apparently undeterred by

      the fact that the Child was also in the vehicle. Father removed the Child from

      her car seat and took her home with him. In April of 2013, Father and Mother

      reconciled, so Mother and the Child moved into his house. However, Father

      soon suspected that Mother was doing methamphetamine, and she was

      spending time with other people who were known in the community to be

      “meth addicts.” (Tr. p. 143). By May of 2013, Father found evidence that

      Mother was using drugs in his house, so he asked her to move out.


[7]   Thereafter, Father realized that Mother was taking the Child with her into

      known “drug houses” and getting high in the Child’s presence. (Tr. p. 150).

      On one occasion in particular, Father drove by one of these drug houses and

      observed Mother’s vehicle in the driveway. Knowing that the Child was

      supposed to be with her, Father approached the house and, through the

      windows, saw the Child playing on the floor while Mother and a man were

      lying on the couch, undressed and “obviously covered in track marks.” (Tr. p.

      149). Father pounded on the door until the Child let him in. Mother tried to

      stop Father from taking the Child, but Father refused to leave without her.

      Father contacted law enforcement to discuss his options for keeping the Child

      away from Mother but was informed that he needed to return the Child to

      Mother as the custodial parent.


[8]   Mother’s methamphetamine use resulted in her being hospitalized in July of

      2013, November of 2013, and again in March of 2014. Each time, she assured




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      the hospital staff that she would seek substance abuse treatment upon her

      release, but she never did. In fact, she acknowledged to Father that she

      continued to inject speed balls—i.e., a mix of heroin and methamphetamine—

      into her veins. Father had numerous discussions with Grandparents regarding

      Mother’s drug use and his concerns about the Child’s exposure to her lifestyle.

      He asked them to stop allowing Mother to drive their vehicle and to prevent her

      from taking the Child with her to friends’ houses. When Father’s pleas went

      unanswered, he explained to Grandparents that he “was over it” and planned to

      file for emergency custody. (Tr. p. 150). Grandparents asked Father not to file

      anything; instead, on April 24, 2014, they filed an emergency petition for

      temporary custody of the Child.


[9]   On May 1, 2014, the trial court conducted a hearing on Grandparents’

      emergency petition, during which Father objected and asserted his desire to

      have custody of the Child. The trial court determined that it would maintain

      the status quo by appointing Grandparents as the Child’s temporary guardians

      for a period of ninety days, during which time the trial court expected Father to

      demonstrate his ability to be the custodial parent. On May 5, 2014, the trial

      court issued an order, officially appointing Grandparents as the Child’s

      temporary co-guardians. The trial court also ordered that, during the temporary

      guardianship, Father should exercise parenting time in accordance with the

      Indiana Parenting Time Guidelines and provide for the Child’s care and

      support. The trial court also stipulated that Mother was not allowed to remove




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       the Child from Grandparents’ house and could only see the Child if supervised

       by Grandparents.


[10]   During the ninety-day guardianship, Mother went to a rehabilitation facility for

       approximately one week. Although Grandparents believed that Mother

       “remained clean” following her brief treatment, Grandparents kicked her out of

       their house because she was not pursuing employment or assisting with

       household responsibilities. (Tr. p. 71). Mother subsequently moved in with her

       boyfriend. Notwithstanding the trial court’s mandate that Grandparents

       supervise all of Mother’s interactions with the Child, Grandparents allowed

       Mother to pick the Child up from daycare on several occasions and to take her

       to the Johnson County Fair and on other outings without their supervision.


[11]   On May 14, 2014, Father filed a verified petition to establish custody, parenting

       time, and child support. On May 30, 2014, Grandparents’ guardianship action

       was consolidated with Father’s paternity case. On August 5, 2014, the trial

       court conducted a hearing on the issues of permanent guardianship, paternity,

       custody, support, and parenting time. On August 20, 2014, the trial court

       issued its Order, denying Grandparents’ petition for guardianship and awarding

       custody to Father. The trial court ordered that Mother was entitled to one two-

       hour visit with the Child per week, to be supervised by Father, until she could

       demonstrate that she had not used drugs for a period of six months.


[12]   Grandparents and Mother now appeal. Additional facts will be provided as

       necessary.




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                                   DISCUSSION AND DECISION

                                             I. Standard of Review

[13]   In this case, the trial court entered special findings of fact and conclusions

       thereon, so our review is guided by Indiana Trial Rule 52(A). Trial Rule 52(A)

       requires a two-tiered analysis: first, we must determine whether the evidence

       supports the findings; and second, we decide whether the findings support the

       judgment. K.I. ex rel. J.I. v. J.H., 903 N.E.2d 453, 457 (Ind. 2009). Our court

       “shall not set aside the findings or judgment unless clearly erroneous, and due

       regard shall be given to the opportunity of the trial court to judge the credibility

       of the witnesses.” Ind. Trial Rule 52(A). If there is no evidence to support the

       findings or the findings do not support the judgment, or if the trial court applied

       the wrong legal standard to properly found facts, we will find clear error. K.I. ex

       rel. J.I., 903 N.E.2d at 457.


[14]   In addition, determinations of child custody “fall squarely within the discretion

       of the trial court and will not be disturbed except for an abuse of discretion.” In

       re Guardianship of B.H., 770 N.E.2d 283, 288 (Ind. 2002), reh’g denied. Reversal

       is only appropriate if the trial court’s decision is contrary to “the logic and effect

       of the facts and circumstances before the [c]ourt or the reasonable inferences

       drawn therefrom.” Id. “In deference to the trial court’s proximity to the

       issues,” we do not reweigh evidence and will consider only the evidence most

       favorable to the judgment. Id. at 287-88.




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                                          II. Guardianship/Custody

[15]   Grandparents claim that the trial court erroneously denied their petition for

       permanent guardianship. Indiana’s guardianship statute provides that “[a]ny

       person may file a petition for the appointment of a person to serve as guardian

       for . . . [a] minor.” Ind. Code § 29-3-5-1(a). To succeed on a guardianship

       petition, the trial court must find that “the appointment of a guardian is

       necessary as a means of providing care and supervision of the physical person

       or property of the . . . minor.” I.C. § 29-3-5-3(a)(2). Here, Grandparents

       asserted that a guardianship was warranted because neither Father nor Mother

       were capable of providing the Child with a stable home. However, Father

       objected to the guardianship and requested custody of the Child. Accordingly,

       the guardianship proceeding essentially amounted to a child custody dispute

       between a natural parent and a third party. See In re Guardianship of L.L., 745

       N.E.2d 222, 227 (Ind. Ct. App. 2001), trans. denied.


[16]   Our supreme court has recognized that there is a well-established 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 at 287. Thus,

       “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.” Id. A third party may not

       overcome the presumption favoring the natural parent simply by establishing

       that he or she could provide “better things in life for the child.” Id. Rather, the

       trial court must make “detailed and specific findings” demonstrating “that




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       placement with a person other than the natural parent represents a substantial

       and significant advantage to the child.” Id. In making this determination, the

       trial court has sound discretion and may consider “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,” among

       innumerable additional criteria. Id.


[17]   In the present case, the trial court concluded that Grandparents did not

       establish “by clear and convincing evidence a basis for custody in derogation of

       the parental right of custody.” (Appellants’ App. p. 32). In support of this

       determination, the trial court found, in relevant part:

               12. Father lives in a farm house in Brown County that is owned by his
               mother. Father lives by himself. He is employed by his step-father for
               Indiana Seamless Gutters at Twelve Dollars ($12.00) per hour. Father
               testified that he could financially support [the Child]. Father receives
               financial assistance from his mother and step-father if necessary.

               13. The [c]ourt does note that the pending guardianship was
               precipitated as a result of Father’s efforts in being proactive in
               protecting [the Child]. Father’s effort to obtain [the Child] after he
               found [Mother] at a “friend’s” house with [the Child] prompted
               [Grandparents] to seek formal guardianship over [the Child].

               14. No evidence was presented that was adverse to Father’s parenting
               ability or to his ability to provide for the care of [the Child]. In fact,
               [Mother] described Father as being a good father. Evidence was
               presented that Father loves [the Child], provides for her care, [the
               Child] loves him and the two of them have a good relationship.

               ****
               17. [Grandparents] have not proven any misconduct of Father.
               Father has not abandoned [the Child]. In fact, he has sought to be part




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               of [the Child’s] life. Father has not acquiesced in [the Child’s] custody
               by another. Father deferred to Mother’s statutory right of custody
               until he determined that [the Child] was being endangered by Mother’s
               actions. He has not acquiesced in the custody of [the Child] being
               with [Grandparents] in derogation of his own right as father.”
       (Appellants’ App. pp. 31-32).


[18]   Relying on outdated case law, Grandparents contend that “by the showing of at

       least one of the above factors [i.e., parental unfitness, acquiescence, or voluntary

       relinquishment], it would be in the best interests of the child to be placed with

       the third party.” (Appellants’ Br. p. 10) (citing four cases which have all been

       abrogated by In re Guardianship of B.H., 770 N.E.2d at 283). To this end, they

       assert that they have sufficiently rebutted the parental presumption because—

       contrary to the trial court’s finding—Father “in fact has acquiesced his rights to

       custody of [the Child].” (Appellants’ Br. p. 11). According to Grandparents,

       Father’s “lack of financial support and alleged knowledge and witness of a

       continued use of drugs by [Mother],” are “not reflective of a parent who is

       interested in providing care and support for [his] child.” (Appellants’ Br. p. 11).

       We find no merit in this claim.


[19]   We first note that Grandparents’ argument is merely a request to reweigh the

       evidence, which we decline to do. It was well within the discretion of the trial

       court to consider any number of factors in evaluating whether Grandparents had

       overcome “the important and strong” parental presumption, and the trial court

       clearly found that the evidence of Father’s lack of formal child support and his

       awareness of Mother’s substance abuse did not satisfy this burden. In re

       Guardianship of B.H., 770 N.E.2d at 287. Furthermore, we find ample support



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       in the record for the trial court’s determination. Father has been an active part

       of the Child’s life since her birth—“vigorously and appropriately pursu[ing]

       what is his right, to be a father to his [Child].” In re I.E., 997 N.E.2d 358, 364

       (Ind. Ct. App. 2013), reh’g denied, trans. denied. During the intervals that Father

       and Child lived in the same house, Father acted as a primary caregiver, and

       when the Child was living with Grandparents, Father regularly exercised

       parenting time. Father—with the help of his family—contributed to the costs of

       daycare and provided clothing and other items for the Child’s care.


[20]   Additionally, Father has suitable housing, is gainfully employed, and is “willing

       and able to provide for [the Child].” Id. Father testified that the Child has her

       own bedroom and playroom in his home, and that there is “tons of stuff” for

       the Child to do on his forty-five-acre farm. (Tr. p. 133). The parties agree that

       Father and the Child have a close relationship, and Father explained that the

       Child is “really smart for a four (4) year old,” and they enjoy fishing and

       exploring in the woods together. (Tr. p. 156). Father maintains a schedule for

       the Child and enforces rules for her behavior. At the time of the hearing,

       Father had already arranged for the Child’s enrollment in a preschool program.

       In light of this evidence, we cannot say that the trial court clearly erred in

       concluding that Grandparents “failed to present evidence that clearly and

       convincingly established that [the Child’s] best interests would be substantially

       and significantly served by continued placement with [Grandparents], such as

       to overcome the ‘strong presumption’ that custody of [the Child] should be




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       given to [her] natural father.” In re I.E., 997 N.E.2d at 364 (quoting K.I. ex rel.

       J.I., 903 N.E.2d at 460).


                                           III. De Facto Custodians

[21]   Grandparents also claim that the trial court erred by failing to take into account

       the fact that they were the Child’s de facto custodians in determining whether

       they had overcome the natural parent presumption. Grandparents posit that

       because they “have been de facto custodians for the last four years, the trial

       court had a responsibility to view [them] on the same level as the natural

       parent(s) in determining custody.” (Appellants’ Reply Br. p. 5). We find that

       Grandparents’ argument runs afoul of both longstanding precedent and the

       constitutional protection afforded to parents in matters “concerning the care,

       custody, and control of their children.” In re Paternity of L.J.S., 923 N.E.2d 458,

       461-62 & n.1 (Ind. Ct. App. 2010), trans. denied.


[22]   “A person is a ‘de facto custodian’ if he has been the primary caregiver for, and

       financial support of, a child who has resided with the person for a period of at

       least one year if the child is at least three years old.” In re Paternity of T.P., 920

       N.E.2d 726, 730-31 (Ind. Ct. App. 2010), trans. denied. A “third party must

       demonstrate de facto custodian status by clear and convincing evidence.”

       A.J.L. v. D.A.L., 912 N.E.2d 866, 870 (Ind. Ct. App. 2009). Father notes that

       the trial court did not specifically find that Grandparents were the Child’s de

       facto custodians, which Grandparents now challenge. However, we need not

       address this argument. Even assuming that Grandparents were de facto

       custodians, they were absolutely not “on a level playing field” with Father. In




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       re I.E., 997 N.E.2d at 362. Rather, they were still obligated to “overcome the

       strong presumption in favor of Father, the natural parent, in order to gain

       custody of [the Child].” In re Paternity of L.J.S., 923 N.E.2d at 461 n.1.


[23]   Moreover, if a third party rebuts the natural parent presumption—that is, if it is

       not axiomatic that it is in the best interests of the child for the natural parent to

       have custody—only then does “the court engage[] in a general ‘best interests’

       analysis” to determine whether to award custody to the natural parent or the

       third party/de facto custodian. In re Guardianship of L.L., 745 N.E.2d at 231.

       Thus, the statutory best interests factors and the de facto custodian criteria, if

       applicable, are only relevant to the trial court’s determination of custody after

       “the third party has rebutted the presumption in favor of the natural parent.”

       T.H. v. R.J., 23 N.E.3d 776, 786 (Ind. Ct. App. 2014), trans. denied. See I.C. §§

       31-14-13-2; -2.5 (enumerating the best interests and de facto custodian factors to

       consider in making an award of custody in a paternity action). Here, the trial

       court applied the correct standard and concluded that Grandparents did not

       meet their burden of overcoming the natural parent presumption. As a result,

       the Child’s best interests were presumed, so there was no reason for the trial

       court to conduct a general best interests analysis, and Grandparents’ status as

       de facto custodians is irrelevant. See In re Paternity of T.P., 920 N.E.2d at 731.


                                         IV. Appointment of a CASA

[24]   Lastly, Grandparents claim that the trial court abused its discretion by failing to

       utilize a CASA in determining the Child’s best interests. During the May 1,

       2014 hearing on temporary guardianship, the trial court indicated that it




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       intended to appoint a CASA, “if they have someone who’s available[,]” in

       order to “spend a little bit of time with the situation.” (Tr. pp. 28-29). Prior to

       the start of the hearing on August 5, 2014, the trial court realized that although

       the CASA received its order, no action was taken in response thereto. The trial

       court elected to proceed without further delay and stated that if it “need[ed]

       anything further[,] it would contact the CASA.” (Tr. p. 51).


[25]   Grandparents now assert that the appointment of the CASA

               was the preferred and expected process so that the [c]ourt would be
               able to make a fully informed determination about custody. Without
               such information, even during questioning of [c]ounsel, we believe the
               [t]rial [c]ourt was significantly limited as to the factual truths of
               testimony given, verification of the ability to take permanent care of a
               minor child, suitable living conditions, etc.
       (Appellants’ Br. p. 14). We disagree. Grandparents do not cite any statute or

       other authority that requires a trial court to appoint a CASA before rendering a

       custody decision. Indiana Code section 31-14-10-1 provides that, in a paternity

       action, “the court may order a probation officer to prepare a report to assist the

       court in determining” issues of child support, custody, and parenting time.

       (Emphasis added). The wording clearly indicates that the appointment of an

       officer to assist the court in a custody determination is discretionary.


[26]   Furthermore, we are unpersuaded by Grandparents’ contention that “questions

       asked by [Father’s] [c]ounsel would certainly be in favor of his client and not

       ‘unbiased’ as to the true ability of [Father] to meet the court’s standard to

       qualify for custody.” (Appellants’ Reply Br. p. 6). It was up to Grandparents to

       present evidence and elicit the necessary information during cross-examination



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       that would enable the court to find in their favor. It is well established that “in

       child custody cases, trial courts are in the position to see the parties, observe

       their conduct and demeanor, and hear their testimony.” A.C. v. N.J., 1 N.E.3d

       685, 688 (Ind. Ct. App. 2013). Thus, the trial court was well-equipped to weigh

       the evidence, assess the credibility of the witnesses, and make a proper custody

       determination without consulting a CASA, and we find no abuse of discretion.1


                                                  CONCLUSION

[27]   Based on the foregoing, we conclude that the trial court did not clearly err in

       denying Grandparents’ petition for guardianship, and it applied the proper

       standard in awarding custody of the Child to Father. We further conclude that

       the trial court did not abuse its discretion by proceeding without the assistance

       of a CASA.


[28]   Affirmed.




       1
          We find that Mother has waived her claims regarding the trial court’s decision that she may exercise only
       two hours of supervised parenting time and that the trial court failed to consider her wish that Grandparents
       receive custody. Mother has not developed a cogent argument or cited to authority on these issues. See Ind.
       Appellate Rule 46(A)(8)(a). Also, neither the Appellants’ Brief nor the Appendix include the trial court’s
       findings or order regarding child support (Father points out that Grandparents and Mother have omitted the
       last page of the trial court’s Order, which included the child support worksheet and findings, from the
       record.). See App. R. 50(A)(2)(b),(h) (requiring the appendix to include a copy of the appealed order and
       “any record material relied on in the brief”). Moreover, the factual bases upon which Mother relies regarding
       child support are entirely extraneous to the record, and we consider only the evidence that was submitted to
       the trial court. Therefore, we find that Mother’s claim that the trial court imposed an excessive child support
       order is also waived. As a final note, we would remind Grandparents and Mother that compliance with the
       Appellate Rules is necessary to promote our court’s efficient review. Thus, all factual assertions should have
       included a citation to the record; only facts most favorable to the trial court’s judgment should have been
       relied upon; and unpublished memorandum decisions should not have been cited to as precedent. See App.
       R. 22(C); App. R. 46(A)(6)(b); App. R. 65(D).




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[29]   Bailey, J. and Barnes, J. concur




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