      MEMORANDUM DECISION
                                                                            Oct 22 2015, 6:30 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 APPELLEE
      Kristen R. Willadsen                                   Kyle D. Gobel
      Willadsen * Neal, LLC                                  Frankfort, Indiana
      Muncie, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Dannie Michelle Clark,                                     October 22, 2015

      Appellant-Petitioner,                                      Court of Appeals Case No.
                                                                 05A02-1503-GU-174

              v.                                                 Appeal from the Blackford Circuit
                                                                 Court
                                                                 The Honorable J. Nick Barry,
      Elizabeth Spradlin,                                        Special Judge
      Appellee-Respondent                                        Trial Court Cause No. 05C01-1310-
                                                                 GU-19




      Bradford, Judge.



                                            Case Summary
[1]   Appellant-Intervenor Dannie Michelle Clark (“Mother”) appeals from the trial

      court’s order naming Appellee-Petitioner Elizabeth Spradlin as guardian of

      A.C., Mother’s biological daughter. A.C. was born in September of 2012, the

      Court of Appeals of Indiana | Memorandum Decision 05A02-1503-GU-174 | October 22, 2015       Page 1 of 12
      child of Mother and Edmund Wattis.1 In October of 2013, Daniel Lee Clark

      (“Clark”)—Mother’s father, A.C.’s grandfather, and Spradlin’s ex-husband—

      petitioned for guardianship of A.C. Mother consented to the guardianship. At

      the time, A.C., Clark, Spradlin, Spradlin’s daughter Lisa Thompson, and

      Mother lived together in Hartford City. In April of 2014, Spradlin and

      Thompson moved with A.C. to Frankfort, Indiana due to concerns about

      A.C.’s safety while living with Clark.


[2]   In June of 2014, Spradlin petitioned to remove Clark as A.C.’s guardian and

      name her successor guardian. In October, the trial court granted Spradlin’s

      motion, after which Mother petitioned to terminate Spradlin’s guardianship of

      A.C. Following a hearing, the trial court denied Mother’s petition to remove

      Spradlin as A.C.’s guardian. Mother now appeals, contending that the trial

      court applied the wrong standard of review and abused its discretion in finding

      that there had been no substantial change in one or more of the child custody

      factors and A.C.’s best interests were served by placement with Spradlin. We

      affirm.



                                Facts and Procedural History
[3]   A.C. was born on September 4, 2012, to Mother and Wattis. Within weeks,

      Mother and A.C. moved into the home of Clark and Spradlin in Hartford City.




      1
          Wattis’s paternity of A.C. has seemingly not been legally established, and he takes no part in this appeal.


      Court of Appeals of Indiana | Memorandum Decision 05A02-1503-GU-174 | October 22, 2015               Page 2 of 12
      The home was jointly owned by Clark and Spradlin, who were married for

      approximately twenty years before divorcing in 2007. Despite the divorce,

      Clark and Spradlin continued to live together in the home. Although A.C.’s

      residence in the Hartford City home was continuous, Mother was generally

      unemployed and would leave home for months at a time with neither Clark nor

      Spradlin knowing her whereabouts. On two occasions in the summer of 2013,

      Spradlin consulted with legal counsel in an effort to acquire guardianship over

      A.C. for herself; in each case counsel demurred because Mother’s whereabouts

      were unknown and her consent could not be obtained.


[4]   On October 29, 2013, Clark moved to be appointed A.C.’s guardian, to which

      Mother consented. In the months that followed, Spradlin had increasing

      concerns regarding A.C.’s presence in the home. A.C. shared a queen-size bed

      with Spradlin and Clark, and Clark would force Spradlin into sexual

      intercourse with him while A.C. was in the bed with them. On March 29,

      2014, Spradlin noticed that Clark and A.C. were spending an inordinate

      amount of time in the bathroom with the door closed. Spradlin entered the

      bathroom to find A.C. and Clark showering together, and Clark had an

      erection.


[5]   Spradlin separated from Clark and took A.C. to live with Thompson in

      Frankfort. Spradlin’s understanding was that she was to have A.C. during the

      week and return A.C. to Clark’s on the weekends so that Mother could have

      parenting time. This arrangement did not occur as Spradlin anticipated, and,

      on June 3, 2014, Spradlin moved to intervene and petitioned to remove Clark as

      Court of Appeals of Indiana | Memorandum Decision 05A02-1503-GU-174 | October 22, 2015   Page 3 of 12
      A.C.’s guardian and appoint her successor guardian. On October 9, 2014, the

      trial court held a hearing and entered an order removing Clark as A.C.’s

      guardian and appointing Spradlin four days later.


[6]   On October 20, 2014, Mother petitioned to terminate Spradlin’s guardianship.

      On February 12, 2015, the trial court held a hearing on Mother’s petition to

      terminate. At the hearing, Mother testified that she lived with Clark in in

      Hartford City and planned to move out when she found a job, but admitted that

      she had not been employed for a year. Mother originally consented to Clark’s

      guardianship in October of 2013 because she was unable to financially support

      A.C. Mother admitted that her financial situation had not changed since 2013.

      Mother also expressed her belief that Spradlin was properly caring for A.C.,

      although Mother was concerned that A.C. might be allergic to Spradlin’s cats.


[7]   Spradlin testified that she, A.C., and Thompson lived in a three-bedroom

      townhouse in Frankfort. A.C. had her own bedroom in the townhouse, and

      there is a playground on the grounds. In the approximately four months since

      being appointed guardian, Spradlin had taken A.C. to doctors to address

      medical issues that had been neglected previously. Spradlin enrolled A.C. in

      the Indiana First Step Program, which provided home-based speech therapy

      and developmental therapy, and A.C. was taking swimming and tumbling

      classes at the Y.M.C.A. Spradlin was receiving disability benefits, and

      Thompson earned substantial income from her job at Frito-Lay. Spradlin

      believed that she had the resources to continue as A.C.’s guardian.



      Court of Appeals of Indiana | Memorandum Decision 05A02-1503-GU-174 | October 22, 2015   Page 4 of 12
[8]   Spradlin also testified that she had made A.C. fully available for visitation with

      Mother, with the exception of one weekend where A.C.’s travel was restricted

      due to a medical procedure. Spradlin, however, ensured that Mother had

      make-up time for that weekend. Spradlin indicated that she had no desire to

      cut Mother out of A.C.’s life and had repeatedly told Mother that she was

      welcome in Spradlin’s home. Spradlin wanted the guardianship to continue,

      expressing concern that, were A.C. to return to live with Clark and Mother, “I

      don’t think she would be in a safe environment. I know that she wouldn’t be

      taken care of properly.” Tr. p. 55.


[9]   On February 26, 2015, the trial court issued an order denying Mother’s petition

      to terminate Spradlin’s guardianship of A.C., which provides, in part, as

      follows:

              7. The Court finds that the guardian in this cause, Elizabeth
                 Spradlin, has developed a strong emotional bond with the
                 child. During those times that Spradlin resided with [Mother]
                 in Hartford City, Indiana, Spradlin provided the daily care for
                 the child. While [Mother] claims that she was excluded from
                 being able to provide care for the child, the Court finds this
                 difficult to believe. Further, Spradlin’s care for the child has
                 continued after receiving guardianship of the child. Spradlin
                 has provided a stable home for the child in Frankfort, Indiana
                 by enrolling the child in preschool classes, extra-activities
                 such as swimming and tumbling. The Court also notes that
                 the child’s health care needs have been addressed by the
                 guardian including follow-up treatments for the child’s eyes
                 regarding issues with the child’s tear ducts. The child’s
                 specific health needs were in existence during the time that
                 the child resided with [Mother] and could have been
                 addressed by [Mother], yet they were not. Spradlin has
      Court of Appeals of Indiana | Memorandum Decision 05A02-1503-GU-174 | October 22, 2015   Page 5 of 12
            obtained health care for the child’s needs by obtaining
            Hoosier Healthwise coverage, something [Mother] could have
            obtained for the child well in advance of these proceedings.
        8. The Court finds that [Mother] seems to be in a great transition
           in life. [Mother] has not been employed since the last Court
           hearing in this cause on October 13, 2014. While [Mother]
           testified that she has submitted job applications at various
           employers in the Hartford City area, the Court finds that,
           even after taking into account the numerous contacts with
           employers, [Mother]’s actions (or inactions) over the past 4
           months since the last hearing seem minimal in light of
           [Mother] being without work for over one year. Spradlin’s
           daughter testified that she has informed [Mother] of a
           potential job opportunity at Frito-Lay which [Mother]
           declined to take any initiative in seeking employment. The
           financial needs of the child are for the Court’s consideration
           but will not be the sole determination on the issue before this
           Court on the best interests of the child. In further concluding
           that [Mother] is in transition in life, the Court notes the
           numerous changes of address for [Mother]. As the Court
           noted in the Order Removing Guardian and Appointment of
           Successor Guardian filed on October 13, 2014, “[Mother] was
           generally unemployed, and would leave the home for months
           at a time with neither Daniel nor Elizabeth knowing her
           whereabouts.” [Mother] continues to reside with her father,
           Daniel. [Mother] testified that she intends to get her own
           place upon becoming employed, however, for the present
           time, [Mother] intends to reside with her father, in the event
           the guardianship is terminated. [Mother]’s father was the
           subject of concern for the Court due to an episode in which
           Daniel was found showering with the child and having an
           erection. The Court finds that to terminate the guardianship
           and to return the child to [the] home of [Mother]’s would
           cause the child’s life to be just as unstable and transitional as
           her mother’s life. Stability in the household for a young child
           at the age of [A.C.] is necessary for the security, physical

Court of Appeals of Indiana | Memorandum Decision 05A02-1503-GU-174 | October 22, 2015   Page 6 of 12
                   growth and emotional well-being and development of a child.
                   “The party seeking the modification bears the burden of
                   demonstrating that the existing custody order is unreasonable
                   because, as a general proposition, stability and permanence
                   are considered best for the child.” Barger vs. Pate, 831
                   N.E.2d 758 (Ind. App. 2005). The Court finds that Spradlin
                   has shown, by a clear and convincing standard, that it is in the
                   best interests of the child, that placement of the child with
                   Spradlin is a significant advantage to the child. In short, the
                   child’s best interests are substantially and significantly served
                   by placement with Spradlin.
               IT IS THEREFORE ORDERED, ADJUDGED AND
               DECREED, the request of [Mother] contained in the Verified
               Petition For Request For P[er]missive Intervention and
               Termination of Guardianship for the termination of the
               guardianship on behalf of the child filed on October 20, 2014 is
               denied.
               IT IS FURTHER ORDERED, ADJUDGED AND DECREED,
               that all previous orders of the Court contained in the Court’s
               Order Removing Guardian and Appointment of Successor
               Guardian filed on October 13, 2014 remain in effect including the
               limitation of contact between the child and Daniel Clark.
       Appellant’s App. pp. 73-75.


                                  Discussion and Decision
                                         Standard of Review
[10]           All findings and orders of the trial court in guardianship
               proceedings are within the trial court’s discretion. Ind. Code §
               29-3-2-4. Thus, we will review those findings under an abuse of
               discretion standard. E.N. ex rel. Nesbitt v. Rising Sun-Ohio County
               Community School Corp., 720 N.E.2d 447, 450 (Ind. Ct. App.
               1999), reh’g denied, trans. denied. In determining whether the trial
               court abused its discretion, we look to the trial court’s findings of

       Court of Appeals of Indiana | Memorandum Decision 05A02-1503-GU-174 | October 22, 2015   Page 7 of 12
               fact and conclusions thereon. We may not set aside the findings
               or judgment unless they are clearly erroneous. Menard, Inc. v.
               Dage-MTI, Inc., 726 N.E.2d 1206, 1210 (Ind. 2000), reh’g denied.
               In our review, we first consider whether the evidence supports
               the factual findings. Id. Second, we consider whether the
               findings support the judgment. Id. “Findings are clearly
               erroneous only when the record contains no facts to support
               them either directly or by inference.” Quillen v. Quillen, 671
               N.E.2d 98, 102 (Ind. 1996). A judgment is clearly erroneous if it
               relies on an incorrect legal standard. Menard, 726 N.E.2d at
               1210. We give due regard to the trial court’s ability to assess the
               credibility of witnesses. Id. While we defer substantially to
               findings of fact, we do not do so to conclusions of law. Id. We
               do not reweigh the evidence; rather we consider the evidence
               most favorable to the judgment with all reasonable inferences
               drawn in favor of the judgment. Yoon v. Yoon, 711 N.E.2d 1265,
               1268 (Ind. 1999).
       In re Guardianship of J.K., 862 N.E.2d 686, 690-91 (Ind. Ct. App. 2007).


             Whether the Trial Court Abused its Discretion in
            Denying Mother’s Petition to Terminate Spradlin’s
                         Guardianship of A.C.
[11]   As we have recently stated,


               Guardianship proceedings are guided by statute. Indiana Code §
               29-3-12-1(c)(4) provides that a trial court “may terminate any
               guardianship if … the guardianship is no longer necessary.…”
               However, “[i]n determining whether a guardianship should be
               terminated, … we have generally applied a more detailed test
               than required by the plain language of the [guardianship]
               statute.” Roydes v. Cappy, 762 N.E.2d 1268, 1274 (Ind. Ct. App.
               2002). Instead, we apply a standard similar to the one used in
               child custody modifications, which takes into account parental
               rights and the best interests of the child. Id.

       Court of Appeals of Indiana | Memorandum Decision 05A02-1503-GU-174 | October 22, 2015   Page 8 of 12
               “Indiana courts have long held that ‘[e]ven 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 … [r]ather, the burden of proof is always on the third
               party.’” [K.I. ex rel. J.I. v. J.H., 903 N.E.2d 453, 460 (Ind. 2009)
               (quoting In re Guardianship of J.K., 862 N.E.2d 686, 692 (Ind. Ct.
               App. 2007)]. (modifications in original). However, as in other
               custody modification matters, a parent wishing to terminate a
               guardianship has the burden of persuading the trial court that
               termination is in the child’s best interests and that there is a
               substantial change in one or more of the child-custody factors.
               See id. (citing Indiana Code § 31-14-13-6) (relating to
               modification of custody in a paternity action). These are
               “modest requirements” where, as occurred here, the party
               seeking to modify custody is the natural parent of a child who is
               in the custody of a third party. Id. Indeed, there is a “‘strong
               presumption that a child’s interests are best served by placement
               with the natural parent.’” Id. (quoting In re Guardianship of B.H.,
               770 N.E.2d 283, 287 (Ind. 2002), reh’g denied). “Hence, the first
               statutory requirement is met from the outset” and, “as a practical
               matter,” the natural parent’s burden of establishing a substantial
               change in one or more of the enumerated statutory factors “is no
               burden at all” or is, at the very least, “minimal.” Id.
               Once the natural parent meets this “minimal” burden of
               persuasion, the third party must prove “by clear and convincing
               evidence ‘that the child’s best interests are substantially and
               significantly served by placement with another person.’” Id. at
               461 (quoting B.H., 770 N.E.2d at 287). If the third party fails to
               carry this burden, then custody of the child must be modified in
               favor of the natural parent. Id.
       In re Guardianship of M.N.S., 23 N.E.3d 759, 766 (Ind. Ct. App. 2014).


[12]   Mother first contends that the trial court applied the wrong standard in

       evaluating her petition, effectively shifting the burden of proof to her. The trial

       court, however, clearly indicated in its order denying Mother’s petition to
       Court of Appeals of Indiana | Memorandum Decision 05A02-1503-GU-174 | October 22, 2015   Page 9 of 12
       remove Spradlin as A.C.’s guardian that “the issue is whether the important

       and strong presumption that a child’s best interest are best served by the

       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.” Appellant’s App. p. 73. This is a

       correct statement of the law, and in the absence of any indication to the

       contrary, Mother has failed to establish that the trial court departed from the

       above by placing the burden of proof on Mother instead of Spradlin.


[13]   Mother also seems to argue that, even if the trial court applied the correct

       standard, it abused its discretion in failing to find that she had carried her

       burden in establishing a substantial change in one of more of the enumerated

       statutory factors.2 We need not address Mother’s argument further, however, if

       we conclude that Spradlin produced sufficient evidence to sustain the trial



       2
        In guardianship cases, e.g., M.N.S., 23 N.E.3d at 766, this court has applied the factors listed in Indiana
       Code section 31-14-13-2, “Factors for custody determination”:
                The court shall determine custody in accordance with the best interests of the child. In
                determining the child’s best interests, there is not a presumption favoring either parent.
                The court shall consider all relevant factors, including the following:
                    (1) The age and sex of the child.
                    (2) The wishes of the child’s parents.
                    (3) The wishes of the child, with more consideration given to the child’s wishes if the
                    child is at least fourteen (14) years of age.
                    (4) The interaction and interrelationship of the child with:
                         (A) the child’s parents;
                         (B) the child’s siblings; and
                         (C) any other person who may significantly affect the child’s best interest.
                    (5) The child’s adjustment to home, school, and community.
                    (6) The mental and physical health of all individuals involved.
                    (7) Evidence of a pattern of domestic or family violence by either parent.
                    (8) Evidence that the child has been cared for by a de facto custodian, and if the
                    evidence is sufficient, the court shall consider the factors described in section 2.5(b)
                    of this chapter.

       Court of Appeals of Indiana | Memorandum Decision 05A02-1503-GU-174 | October 22, 2015            Page 10 of 12
       court’s finding that “[A.C.’s] best interests are substantially and significantly

       served by placement with Spradlin.” Appellant’s App. p. 75.


[14]   Even assuming, arguendo, that Mother carried her initial burden of proof, we

       conclude that the record contains sufficient evidence to sustain the trial court’s

       judgment. The trial court found, inter alia, that Spradlin had formed a strong

       bond with A.C., provided daily care for A.C. both in Hartford City and

       Frankfort, provided a stable home, enrolled A.C. in preschool and athletic

       programs, and addressed A.C.’s long-neglected medical needs. The trial court’s

       findings, amply supported by the record, indicate that Spradlin is able to

       provide a stable, safe, healthy, and comfortable environment for A.C.


[15]   In contrast, the trial court found that Mother’s life was in transition. The trial

       court noted Mother’s continued unemployment, finding that her efforts to find

       employment were “minimal in light of [Mother] being out of work for over one

       year.” Appellant’s App. p. 74. The trial court specifically highlighted evidence

       that Thompson had informed Mother of a potential employment opportunity at

       Frito-Lay, which Mother then failed to pursue. In addition to financial

       concerns, the trial court noted Mother’s history of frequent changes of address,

       noting that Mother has been known to leave Clark’s home (and A.C.) for

       months at a time with neither Clark nor Spradlin being made aware of her

       whereabouts. Finally, the trial court expressed concern over Clark, with whom

       Mother currently resides. The trial court specifically cited Spradlin’s report that

       she had seen Clark and A.C. showering together, Clark with an erection at the

       time. Essentially, Mother is asking us to overlook what the trial court found to

       Court of Appeals of Indiana | Memorandum Decision 05A02-1503-GU-174 | October 22, 2015   Page 11 of 12
       be credible reports of extremely inappropriate behavior by Clark. We will not

       do so. Needless to say, the trial court was well within its discretion in

       considering A.C.’s safety around Clark to be a significant concern.


[16]   In summary, the trial court concluded that to terminate the guardianship with

       Spradlin and return A.C. to Mother would cause her life to be just as unstable

       and transitional as Mother’s. See Barger v. Pate, 831 N.E.2d 758, 762 (Ind. Ct.

       App. 2005) (“The party seeking the modification bears the burden of

       demonstrating that the existing custody order is unreasonable because, as a

       general proposition, stability and permanence are considered best for the

       child.”). We conclude that because Spradlin has carried her burden, the trial

       court did not abuse its discretion in denying Mother’s petition to terminate

       Spradlin’s guardianship.


[17]   The judgment of the trial court is affirmed.


       May, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 05A02-1503-GU-174 | October 22, 2015   Page 12 of 12
