MEMORANDUM DECISION
                                                                           Apr 28 2015, 6:43 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.



ATTORNEY FOR APPELLANT                                    ATTORNEY FOR APPELLEES
Christopher C. Crawford                                   Lisa Gilkey Schoetzow
Elkhart, Indiana                                          Thorne Grodnik, LLP
                                                          Elkhart, Indiana



                                             IN THE
     COURT OF APPEALS OF INDIANA

In re the Guardianship of M.M.                            April 28, 2015
et al                                                     Court of Appeals Case No.
                                                          20A05-1409-GU-441
Melissa Miller,
                                                          Appeal from the Elkhart Superior
Appellant,                                                Court
                                                          The Honorable Evan S. Roberts,
        v.                                                Judge
                                                          Trial Court Cause No.
FaithAnn Breden and Richard                               20D01-1005-GU-39
Breden,
Appellees.




Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A05-1409-GU-441 | April 28, 2015          Page 1 of 13
                               Case Summary and Issues
[1]   Melissa Miller (“Mother”) is the mother of two children, M.M., born in 2006,

      and J.M., born in 2008. In 2010, a guardianship was established over the

      children and they were placed in the custody of the guardians, Richard Breden

      and FaithAnn Breden (collectively referred to as “Guardians”). In 2012, the

      children were returned to Mother’s custody but the guardianship remained

      open. Ultimately, M.M. was returned by agreement to the custody of

      Guardians while J.M. remained in Mother’s custody. In 2014, Mother was

      found in contempt on a motion for rule to show cause filed by Guardians. At a

      review hearing on that contempt finding, the trial court ordered that J.M. be

      immediately placed in the temporary custody of Guardians and set an

      evidentiary hearing for full consideration of a change of custody.


[2]   Mother appeals the temporary change of custody, raising two issues for our

      review: 1) whether her due process rights were violated when the trial court

      immediately removed J.M. from her custody and did not set an evidentiary

      hearing for approximately three months in the future, and 2) whether the trial

      court abused its discretion in temporarily changing custody of J.M. Concluding

      Mother’s due process rights were not violated and the trial court did not abuse

      its discretion in entering a temporary change of custody order, we affirm.




      Court of Appeals of Indiana | Memorandum Decision 20A05-1409-GU-441 | April 28, 2015   Page 2 of 13
                                Facts and Procedural History
[3]   The facts as we are able to glean them from the Chronological Case Summary

      (“CCS”) and the transcript of the review hearing 1 are these: Richard Breden is

      Mother’s father, and FaithAnn Breden is his wife. The Bredens were appointed

      guardians of J.M. and M.M. in 2010 in conjunction with Mother’s pending

      divorce from the children’s father.2 Mother and Guardians have a contentious

      relationship which has resulted in multiple appearances in court since the

      guardianship was established. At the review hearing, the trial court

      summarized the state of the case as follows:

                 So we have two children with one being with [Guardians] and one
                 being with [Mother]. We’ve had very little success over the years with
                 cooperative exchanges for parenting time, we’ve had transportation
                 issues, we’ve had 19 pages of chronological case summary here, and
                 it’s clear to me that very few people seem to be listening and following
                 court orders. . . . I’ll also note for the record that I don’t seem to be
                 making any headway towards getting the case resolved, stopping the
                 fighting, which is commonly associated with this case. There needs to
                 be a stop.
      Transcript at 24-25.


[4]   On June 5, 2014, Guardians filed a verified motion for rule to show cause

      against Mother. Neither that motion nor the order ruling on it are included in



      1
        Mother’s Appendix includes only the CCS, the trial court’s order being appealed, a guardian ad litem’s
      report that was submitted to the trial court in advance of the hearing, and excerpts from the transcript of the
      review hearing. This makes it difficult to gain a full picture of these proceedings which began in 2010.
      Further, Indiana Appellate Rule 50(F) states that “parties should not reproduce any portion of the Transcript
      in the Appendix” because the transcript is transmitted to the court in full from the trial court clerk.
      2
          The children’s father is now deceased.


      Court of Appeals of Indiana | Memorandum Decision 20A05-1409-GU-441 | April 28, 2015               Page 3 of 13
      the record, but from the information contained in the CCS, it appears that the

      motion alleged Mother was not in compliance with court orders regarding

      parenting time. On June 16, 2014, Mother filed a notice of intent to relocate to

      Florida. At a June 23, 2014, hearing on the motion for rule to show cause,

      Guardians filed an objection to Mother’s notice of relocation and a request to

      modify child custody and parenting time.3 The trial court found Mother in

      contempt and sentenced her to fifteen days at the county jail, with jail time

      suspended pending a review hearing regarding her compliance with court

      orders. In addition, the trial court ordered that no party was to relocate and

      neither minor child was to be removed from the county pending further order of

      the court. Finally, the trial court admonished the parties “that there are to be

      no discussions concerning this matter with the children and they are prohibited

      from making disparaging comments about one another. Parties are further

      admonished to fully comply with all Court orders.” Appellant’s App. at 10. A

      review hearing was scheduled for August 18, 2014.


[5]   The children’s Guardian ad Litem (“GAL”) filed a report with the court in

      advance of the August 18, 2014 review hearing. The GAL noted several recent

      incidents reported by Guardians that reflected poorly on Mother. The GAL

      also noted that Mother has historically been unable or unwilling to hold a job or

      independently maintain stable housing for herself and her children and




      3
        The request to modify custody also does not appear in the record, but from context, it appears it was a
      request to change the custody of J.M. from Mother to Guardians.

      Court of Appeals of Indiana | Memorandum Decision 20A05-1409-GU-441 | April 28, 2015              Page 4 of 13
      “continues to make very poor parenting choices . . . . She will not provide a

      stable home for herself and her sons and continues to make poor choices

      regarding who she allows into her life.” Appellant’s App. at 23. Accordingly,

      the GAL recommended that Guardians

              retain permanent guardianship of [M.M.]. [J.M.] should also be
              placed in their home and they should have permanent guardianship of
              him also. [Mother] should have supervised parenting time . . . and a
              No Contact order should be put in place so she cannot disrupt the
              [Guardians’] home . . . . [Mother] needs to get and maintain full time
              employment and get a home of her own before any extended parenting
              time will take place.
      Id.


[6]   Mother and Guardians each appeared by counsel at the review hearing. The

      GAL was also present. The trial court noted at the outset of the review hearing

      that it had received and reviewed the GAL’s report. The parties’ positions were

      summarized by their counsel, and no testimony was taken. Guardians

      requested that the trial court adopt the GAL’s recommendation and place J.M.

      in their custody. Mother provided information from J.M.’s school about her

      involvement there, asserted that she had obtained a job that she was to start that

      evening, and argued that Guardians’ home had its share of drawbacks as well.

      Although her counsel asserted there was no emergency which would necessitate

      a change in custody without an evidentiary hearing, he also acknowledged that

      “[t]here is never going to be [a] situation in this case where anything is ever




      Court of Appeals of Indiana | Memorandum Decision 20A05-1409-GU-441 | April 28, 2015   Page 5 of 13
      going to change in regards to this matter.”4 Tr. at 8. The GAL reiterated her

      concerns that Mother has not been able to maintain stable employment in the

      past and wondered how long her new job would last. The GAL noted that

      Mother

              continues to live off the grace and favor of other people. That does not
              make a stable home for a child. . . . [J.M.] is being moved from place
              to place to place. . . . I want to see [Mother] be able to provide a home
              for herself and the boys, to be able to meet their needs, medically,
              food, clothing, shelter. That’s not possible at this point. . . . I’m very
              concerned about [J.M.] He needs stability. I don’t know how else to
              give that to him at this point.
      Tr. at 14-15.


[7]   At the conclusion of the hearing, the trial court noted that it was “quite familiar

      with the case, I read what’s filed with the court so I have a pretty good idea

      what’s going on here. . . . This is going to stop and today is that day.” Tr. at 28.

      Accordingly, the trial court found Mother was entitled to an evidentiary hearing

      and set one for November 21, 2014. “However, as a temporary order what

      we’re going to do today is the following: Effective immediately, [J.M.] will be

      placed back into the [Guardians’] care without prejudice to reconsideration

      based upon what I have in the [GAL’s] report and the arguments of counsel.”

      Tr. at 25. The trial court followed up its ruling from the bench with a written

      order stating custody of J.M. was temporarily and immediately placed with




      4
        Counsel’s remark echoes the trial court’s statement quoted above, and is also reflected in the GAL’s
      statement during the hearing that she does not “know how to make this case move forward. We just seem to
      be treading water . . . .” Tr. at 14-15.

      Court of Appeals of Indiana | Memorandum Decision 20A05-1409-GU-441 | April 28, 2015        Page 6 of 13
      Guardians “[b]ased on Mother’s unstable employment history, frequent

      changes in living situation including a recent eviction and instability for the

      minor child in her custody . . . .”5 Appellant’s App. at 20. Mother now

      appeals.



                                  Discussion and Decision
                                             I. Due Process
[8]   Mother contends the trial court violated her due process rights in immediately

      changing custody of J.M. and failing to set an evidentiary hearing sooner than

      three months out.


[9]   “The parent-child relationship is one of the most valued relationships in our

      culture . . . [a]nd a parent’s interest in the upbringing of their child is perhaps

      the oldest of the fundamental liberty interests recognized by the courts.” In re

      K.T.K., 989 N.E.2d 1225, 1230 (Ind. 2013) (citations and alterations omitted).

      “[D]ecisions regarding marriage, family life, and raising children are of basic

      importance in our society and are rights protected by the Fourteenth

      Amendment from the State’s unwarranted interference.” C.A. v. Indiana Dep’t of

      Child Servs., 15 N.E.3d 85, 93 (Ind. Ct. App. 2014) (citing M.L.B. v. S.L.J., 519

      U.S. 102, 116-17 (1996)).




      5
       Mother’s parenting time was originally taken under advisement, but on August 26, 2014, the trial court
      ordered that she have supervised parenting time with the children awaiting the evidentiary hearing.

      Court of Appeals of Indiana | Memorandum Decision 20A05-1409-GU-441 | April 28, 2015            Page 7 of 13
[10]   “Due process” has never been defined, but it embodies the concept of

       “fundamental fairness.” In re C.G., 954 N.E.2d 910, 917 (Ind. 2011). In

       Mathews v. Eldridge, 424 U.S. 319 (1976), the Supreme Court stated that “[t]he

       fundamental requirement of due process is the opportunity to be heard at a

       meaningful time and in a meaningful manner.” Id. at 333 (citation and

       quotation omitted).


[11]   In support of her position, Mother cites two cases, which she claims are very

       similar to this situation. In Brown v. Brown, 463 N.E.2d 310 (Ind. Ct. App.

       1984), this court held that a delay of two months between the granting of a

       temporary ex parte order immediately transferring custody of children from

       father to mother and a full custody hearing was one of several procedural

       irregularities that combined to constitute an abuse of the trial court’s discretion.

       Id. at 313 (“Because a delay in custody hearing may increase the chances of a

       custodial parent eventually being deprived of custody, it is not reasonable for a

       custody hearing to follow an ex parte transfer of custody by two months.”)

       (emphasis added). And in Wilcox v. Wilcox, 635 N.E.2d 1131 (Ind. Ct. App.

       1994), this court held that a delay of fifteen months between the granting of an

       emergency ex parte order immediately transferring custody of children was a

       significant enough delay to alone be a denial of due process. Id. at 1136-37 (“In

       order to protect the welfare of the child, the court may enter an ex parte order.

       To protect the relationship between the parent and the children, the court is

       required by statute to hold a prompt hearing—with notice and an opportunity to

       be heard—on the custody issue.”) (emphasis in original).

       Court of Appeals of Indiana | Memorandum Decision 20A05-1409-GU-441 | April 28, 2015   Page 8 of 13
[12]   Both Brown and Wilcox are distinguishable from the case at bar because they

       involved ex parte orders changing custody. The fact that the parent in each of

       those cases was denied an opportunity to be heard on the change of custody at

       all until after the passage of some amount of time was integral to each decision.

       Here, Guardians filed a request to modify custody in advance of the hearing,

       and the GAL filed a report summarizing her recommendations regarding

       custody prior to the hearing. Although it may be that the review hearing was

       not set for the specific purpose of deciding custody issues, it could not have

       been a surprise to Mother that custody would be addressed. 6 At the hearing,

       Mother was represented by counsel and heard by the trial court regarding a

       change in custody before the court entered its temporary order. Thus, we do

       not believe it is appropriate to consider the trial court’s action in this case to be

       an ex parte order. See Stratton v. Stratton, 834 N.E.2d 1146, 1147-48 (Ind. Ct.

       App. 2005) (noting that, where custody was temporarily modified following the

       first day of a two-day trial at which both parties were present, it was not an ex

       parte order and holding that a delay of seven months in holding the second day

       of trial did not constitute a denial of due process).


[13]   The trial court here recognized the need for a full evidentiary hearing on this

       matter and set a date for that hearing before the parties left the courtroom that




       6
         Because we do not have the transcript of the June 23, 2014 hearing, we do not know precisely what matters
       the trial court set the August 18, 2014 hearing to review. That the GAL filed a report with the court in the
       interim concerning her recommendations for custody could be an indication that custody was one of those
       matters.

       Court of Appeals of Indiana | Memorandum Decision 20A05-1409-GU-441 | April 28, 2015            Page 9 of 13
       day. Admittedly, that hearing was set three months into the future. But as

       Wilcox recognized, Brown does not stand for the proposition that a delay of two

       months between an ex parte order changing custody and a full hearing is

       necessarily too long, as the cumulative effect of several procedural regularities

       compelled the result in Brown. 635 N.E.2d at 1137. And the delay in Wilcox

       which the court held “severely prejudiced” the parent’s right to a hearing, id.,

       was five times as long as the delay here. The length of the delay in this case is

       not per se unreasonable.


[14]   Further, the three month delay in holding a hearing in this case did not

       prejudice Mother. As her counsel acknowledged, “the idea of a guardianship is

       for the parties to be able to work together to the extent possible for [Mother] to

       get into a position to be able to have the care and custody of her children.” Tr.

       at 12. The review hearing leading up to the trial court’s temporary custody

       order focused on several areas of Mother’s life where she was not in that

       position—her housing and employment situations in particular. Setting an

       evidentiary hearing three months into the future would give Mother an

       opportunity to address those areas and show the court that she was in a position

       to have custody of her children before the trial court made a permanent ruling

       on Guardians’ request to modify custody.


[15]   In sum, Mother had notice that custody was at issue in this case, the trial

       court’s order transferring custody of J.M. to Guardians was temporary, and

       Mother had an opportunity to be heard by counsel before a change of custody

       was ordered with assurances of an opportunity to be heard more fully in short

       Court of Appeals of Indiana | Memorandum Decision 20A05-1409-GU-441 | April 28, 2015   Page 10 of 13
       order. We thus conclude that the trial court’s temporary order did not violate

       Mother’s due process rights.


                      II. Temporary Modification of Custody
[16]   Mother also contends the trial court abused its discretion in modifying custody

       when there was no showing of an emergency and the change was based on a

       one-sided GAL report. We review findings and orders in a guardianship

       proceeding for an abuse of discretion. In re Guardianship of Hollenga, 852 N.E.2d

       933, 937 (Ind. Ct. App. 2006) (citing Ind. Code § 29-3-2-4(a)). We also review

       custody modifications for an abuse of discretion with a “preference for granting

       latitude and deference to our trial judges in family law matters.” K.I. ex rel. J.I.

       v. J.H., 903 N.E.2d 453, 457 (Ind. 2009) (quoting Kirk v. Kirk, 770 N.E.2d 304,

       307 (Ind. 2002)). An abuse of discretion occurs when the decision is clearly

       against the logic and effect of the facts and circumstances before the court.

       Hollenga, 852 N.E.2d at 937.


[17]   In considering a natural parent-third party custody dispute, there is a

       presumption that the natural parent should have custody of the child. In re

       Guardianship of L.L., 745 N.E.2d 222, 230 (Ind. Ct. App. 2001), trans. denied.

       The third party bears the burden of overcoming this presumption by clear and

       convincing evidence, such as evidence of the parent’s present unfitness. Id. If

       the presumption is overcome, then the court engages in a consideration of the

       statutory modification factors and a “best interests” analysis. Id. at 231; see Ind.

       Code § 31-14-13-6. Keeping in mind that this was a temporary change in


       Court of Appeals of Indiana | Memorandum Decision 20A05-1409-GU-441 | April 28, 2015   Page 11 of 13
       custody “without prejudice to reconsideration” following a full evidentiary

       hearing, tr. at 25, we cannot say the trial court abused its discretion here.


[18]   It appears to be true that the details in the GAL report were provided to the

       GAL by Guardians. However, leaving aside the more salacious allegations

       made by Guardians and included in the GAL’s report, there seems to be no

       dispute regarding the GAL’s report that Mother had moved frequently with

       J.M. and did not have steady employment. Mother had been found in

       contempt of court for her actions with regard to parenting time as recently as

       two months before this hearing. Moreover, this case has been before the trial

       court for more than four years, and the court noted it was “quite familiar” with

       the case and the dynamics of the situation. Tr. at 28; see In re Adoption of O.R.,

       16 N.E.3d 965, 973 (Ind. 2014) (noting that we grant considerable deference to

       a trial court’s decision in family law matters because “we recognize that the trial

       judge is in the best position to judge the facts, determine witness credibility, get

       a feel for the family dynamics, and get a sense of the [parties] and their

       relationship with [the] children.”) (quotations omitted). On an emergency,

       temporary basis, the trial court could have reasonably found based on the facts

       and circumstances before the court that Mother was presently unfit to care for

       J.M. and that it was in J.M.’s best interests to be immediately placed with

       Guardians pending a full evidentiary hearing.7




       7
        Notwithstanding the temporary change in custody, at such evidentiary hearing, it remains Guardians’
       burden to rebut the presumption that Mother is the appropriate person to have the custody of J.M. Cf. K.I.,

       Court of Appeals of Indiana | Memorandum Decision 20A05-1409-GU-441 | April 28, 2015            Page 12 of 13
                                                  Conclusion
[19]   Mother’s due process rights were not violated by the manner in which the trial

       court entered its temporary change of custody order or in the setting of an

       evidentiary hearing. Further, the trial court did not abuse its discretion in

       temporarily changing the custody of J.M. from Mother to Guardians.

       Accordingly, the trial court’s temporary order is affirmed.


[20]   Affirmed.


       Bailey, J., and Brown, J., concur.




       903 N.E.2d at 460 (“Even when a parent initiates an action to reobtain custody of a child that has been in the
       custody of another, the burden of proof does not shift to the parent . . . .”) (quotation omitted). If Guardians
       can rebut the presumption, then the trial court must examine the custody situation as it existed prior to the
       temporary order in determining whether the standard for modification of custody has been met. See Walker v.
       Chatfield, 553 N.E.2d 490, 497 (Ind. Ct. App. 1990) (“Temporary custody merely preserves the status quo
       until a final determination based on all the facts can be made.”).



       Court of Appeals of Indiana | Memorandum Decision 20A05-1409-GU-441 | April 28, 2015              Page 13 of 13
