MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                           FILED
regarded as precedent or cited before any                             May 02 2019, 8:37 am

court except for the purpose of establishing                               CLERK
                                                                       Indiana Supreme Court
the defense of res judicata, collateral                                   Court of Appeals
                                                                            and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
Emily S. Waddle                                          Thomas J. O’Brien
DeMotte, Indiana                                         Lafayette, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Paternity of                        May 2, 2019
L.C. and C.C. (Minor Children):                          Court of Appeals Case No.
                                                         18A-JP-2923
                                                         Appeal from the Jasper Circuit
Nichole Wells,                                           Court
Appellant-Petitioner,                                    The Honorable John D. Potter,
                                                         Judge
        v.
                                                         Trial Court Cause No.
                                                         37C01-1501-JP-25
Joshua Christman,
Respondent,

Deborah Christman,
Appellee-Intervenor.



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-JP-2923 | May 2, 2019                    Page 1 of 9
                                          Case Summary
[1]   L.C. and C.C. (collectively, the “Children”) are minor children born to Nichole

      Wells (“Mother”) and Joshua Christman (“Father”). After Father died, his

      mother Deborah Christman (“Grandmother”) successfully petitioned for

      grandparent visitation rights. Mother now appeals from the order granting

      those rights. She presents several issues, which we consolidate and restate as

      whether the trial court erred in granting visitation rights to Grandmother.


[2]   We affirm.



                            Facts and Procedural History
[3]   Mother and Father had two daughters, L.C. (born in 2010) and C.C. (born in

      2013). While Mother and Father were in a relationship, Grandmother

      regularly spent time with the Children. In 2014, the relationship between

      Mother and Father deteriorated, and Mother eventually received primary

      physical custody of the Children. Father had weekly parenting time, and

      Grandmother would help by transporting the Children between residences.


[4]   Father died in August 2015, which led to Grandmother having little contact

      with the Children. Grandmother later petitioned for visitation rights. The trial

      court held a hearing and ultimately granted visitation rights to Grandmother.


[5]   Mother now appeals.




      Court of Appeals of Indiana | Memorandum Decision 18A-JP-2923 | May 2, 2019   Page 2 of 9
                                 Discussion and Decision
[6]   When ruling on a petition for grandparent visitation rights, the court must enter

      findings and conclusions in accordance with Trial Rule 52. See Ind. Code § 31-

      17-5-6; Ind. Trial Rule 52(A). We conduct a two-tiered review of those

      findings, first determining “whether the evidence supports the findings and then

      whether [the] findings support the judgment.” K.I. ex rel. J.I. v. J.H., 903 N.E.2d

      453, 457 (Ind. 2009). In conducting our review, we do not reweigh the

      evidence, Stonger v. Sorrell, 776 N.E.2d 353, 358 (Ind. 2002), and must give “due

      regard . . . to the opportunity of the trial court to judge the credibility of the

      witnesses,” T.R. 52(A). We “shall not set aside the findings or judgment unless

      clearly erroneous.” Id. Findings are clearly erroneous when the record

      contains no facts to support them, either directly or by inference. Fischer v.

      Heymann, 12 N.E.3d 867, 870 (Ind. 2014). “A judgment is clearly erroneous

      when there is no evidence supporting the findings or the findings fail to support

      the judgment.” J.H., 903 N.E.2d at 457. A judgment is also clearly erroneous

      when the court “applies the wrong legal standard to properly found facts.” Id.


[7]   “Indiana has enacted legislation . . . recogniz[ing] that ‘a child’s best interest is

      often served by developing and maintaining contact with his or her

      grandparents.’” In re Visitation of L-A.D.W., 38 N.E.3d 993, 997 (Ind. 2015)

      (quoting J.H., 903 N.E.2d at 462). Indeed, Indiana Code Section 31-17-5-1

      gives grandparents like Grandmother—whose own child is deceased—the right

      to seek visitation. Moreover, a court may grant visitation if it “determines that

      visitation rights are in the best interests of the child.” I.C. § 31-17-5-2(a).

      Court of Appeals of Indiana | Memorandum Decision 18A-JP-2923 | May 2, 2019   Page 3 of 9
      Notably, however, natural parents have a “fundamental constitutional right to

      direct their children’s upbringing without undue governmental interference.” In

      re Visitation of M.L.B., 983 N.E.2d 583, 586 (Ind. 2013) (discussing Troxel v.

      Granville, 530 U.S. 57 (2000) (plurality opinion)). Thus, to “strik[e] a balance”

      between the interests of parents and children, visitation orders must address:


              (1)      a presumption that a fit parent’s decision about
                       grandparent visitation is in the child’s best interests (thus
                       placing the burden of proof on the petitioning
                       grandparents);


              (2)      the “special weight” that must therefore be given to a fit
                       parent’s decision regarding nonparental visitation (thus
                       establishing a heightened standard of proof by which a
                       grandparent must rebut the presumption);


              (3)      “some weight” given to whether a parent has agreed to
                       some visitation or denied it entirely (since a denial means
                       the very existence of a child-grandparent relationship is at
                       stake, while the question otherwise is merely how much
                       visitation is appropriate); and


              (4)      whether the petitioning grandparent has established that
                       visitation is in the child’s best interests.


      Id. (emphasis removed) (citing McCune v. Frey, 783 N.E.2d 752, 757-59 (Ind. Ct.

      App. 2003)); J.H., 903 N.E.2d at 462.


[8]   Here, the trial court found that “Grandmother has had a close and bonding

      relationship” with the Children, App Vol. II at 82, including “substantial and

      meaningful contact” with them before Father died, id. at 83. The court also
      Court of Appeals of Indiana | Memorandum Decision 18A-JP-2923 | May 2, 2019      Page 4 of 9
      found that Father’s death “greatly affected” Mother and Grandmother “to such

      an extent that they have shown animosity towards one another which appeared

      during the testimony in Court.” Id. at 82. The court found that “Grandmother

      has had very little contact with [the Children] since her son passed away” and

      that “Grandmother has attempted to maintain a relationship.” Id. The court

      acknowledged that Mother had reasons for denying visitation, in that “she

      believes allowing Grandmother visitation with her children would cause [the

      Children] mental harm and she wanted the [C]hildren to be old enough to

      decide for themselves about Grandmother.” Id. The court also addressed

      evidence that Mother permits the Children to spend time with their paternal

      uncle—Grandmother’s son. The court found that although Mother “claims

      that she is not actively trying to exclude Father’s family from the [C]hildren’s

      lives . . . the paternal uncle is estranged from his mother, the Grandmother.”

      Id. at 83. The court further noted that it had appointed a Guardian Ad Litem

      (the “GAL”), and that the GAL’s “report and testimony indicate[] that it would

      be in the best interest of the [C]hildren that Grandmother have visitation.” Id.


[9]   The court ultimately recited the four factors, then found as follows:


              In this case, Mother is a fit parent and has been denying
              visitation to the paternal Grandmother. Many unresolved issues
              remain surrounding the death of the common connection
              between Mother and Grandmother—the [C]hildren’s father.
              Mother has unresolved issues teeming with animosity with
              paternal Grandmother that appear to be the primary reason for
              her denial of visitation. The [C]hildren miss their grandparent
              and substantial evidence, including the Guardian Ad Litem


      Court of Appeals of Indiana | Memorandum Decision 18A-JP-2923 | May 2, 2019   Page 5 of 9
               Report, indicates that visitation with Grandmother would be in
               the best interests of the [C]hildren.


       Id. at 83.


[10]   Mother argues that the trial court erred in several respects. Her arguments

       generally focus on whether the trial court erred by either failing to apply or

       improperly applying each of the four factors. Mother also asserts that

       Grandmother did not meet her burden of proof as the petitioner, and that the

       “judgment was not supported by the findings of fact.” Appellant’s Br. at 12.1


[11]   Yet, the trial court found that Mother was a fit parent and it gave careful

       attention to Mother’s reasons for denying the relationship—thereby addressing

       the first and second factors. As to the third factor, the trial court found that

       although Mother allowed the Children to have a relationship with a paternal

       uncle, Mother was denying the Children a relationship with Grandmother.


[12]   Mother mainly focuses on the fourth factor—whether Grandmother established

       that visitation was in the Children’s best interests. Mother argues that

       Grandmother “presented no evidence” that would support a best-interests




       1
         Mother presents an argumentative Statement of the Facts, contrary to Appellate Rule 46(A)(6)(b), which
       provides that “[t]he facts shall be stated in accordance with the standard of review appropriate to the
       judgment or order being appealed.” Moreover, her Argument section contains sparse citation, contrary to
       Appellate Rule 46(A)(8)(a), which provides that “[e]ach contention must be supported by citations to the
       authorities, statutes, and the Appendix or parts of the Record on Appeal relied on, in accordance with Rule
       22.” We remind counsel that non-compliance with Appellate Rule 46 can result in waiver of appellate issues.
       See, e.g., Pierce v. State, 29 N.E.3d 1258, 1267 (Ind. 2015). We nevertheless address Mother’s appellate
       contentions. See id. (noting a preference to resolve cases on the merits instead of on procedural grounds).

       Court of Appeals of Indiana | Memorandum Decision 18A-JP-2923 | May 2, 2019                     Page 6 of 9
       determination. Appellant’s Br. at 12. Indeed, Mother asserts that attention to

       the Children’s best interests “was wholly absent [from] . . . Grandmother’s case

       in chief.” Id. at 15. Yet, Grandmother testified that, in her belief, it was in the

       Children’s best interests to maintain a relationship with her. Grandmother

       testified about her close relationship with the Children before Father died,

       including how she would watch them when Mother and Father “need[ed] to go

       somewhere or wanted to go out.” Tr. Vol. II at 5-6. Grandmother recalled

       taking the Children places, including the pumpkin patch, the zoo, and the mall.

       Grandmother also testified about how she would attend school events.


[13]   Largely disregarding this testimony, Mother suggests that Grandmother was

       obligated to place “Mother in an[] unpleasant or unacceptable light” in order to

       prevail on the petition. Appellant’s Br. at 13. However, Mother cites no

       authority for this proposition. Mother also focuses on evidence least favorable

       to Grandmother. Indeed, at one point, Mother asserts that the Children should

       not be “exposed to Grandmother’s negativity,” id. at 14, and that the court

       “should have placed more weight” on certain evidence, id. at 15. Mother also

       suggests that “no testimony was given . . . to bolster Grandmother’s position.”

       Id. Yet, these arguments amount to requests to reweigh the evidence—and we

       must decline them. Nevertheless, as to Mother’s assertion that the record was

       devoid of additional evidence that visitation was in the Children’s best interests,




       Court of Appeals of Indiana | Memorandum Decision 18A-JP-2923 | May 2, 2019   Page 7 of 9
       the GAL testified that the Children were “excited” to have a relationship with

       Grandmother. Tr. Vol. II at 37. Moreover, the GAL recommended visitation.2


[14]   Mother also directs us to In re Visitation of C.S.N., 14 N.E.3d 753 (Ind. Ct. App.

       2014), where this Court reversed an order granting visitation rights. There, the

       written findings indicated that the court had improperly shifted the burden to

       the parent. See id. at 759. The court also erroneously found that the parent had

       been completely denying visitation. See id. at 762 (identifying a “significant

       difference in situations where a grandparent’s visitation has been merely

       reduced versus denied entirely”). Thus, that case involved error in applying

       certain factors. Here, however, Mother fails to identify any such error.


[15]   Ultimately, although Mother focuses on her fundamental right to direct the

       Children’s upbringing, Indiana law permits some interference with that right,

       preserving grandparent relationships for children who have lost a parent. In

       determining that visitation was in the best interests of the Children, the court

       properly addressed each of the four factors. Moreover, Mother has not

       identified error in the findings—and those findings support the decision to grant




       2
        To the extent Mother is suggesting that the trial court failed to give appropriate deference to Mother’s
       decision to deny visitation, “it is the trial court’s prerogative to listen to the evidence and determine, in light
       of that evidence, whether a parent’s alleged justification for denying or restricting visitation with
       grandparents holds water.” Spaulding v. Williams, 793 N.E.2d 252, 260 (Ind. Ct. App. 2003). Here, the trial
       court properly acknowledged and considered Mother’s explanation, but ultimately determined that animosity
       was the primary motivator for denying visitation—not the proffered concerns about Grandmother’s care.

       Court of Appeals of Indiana | Memorandum Decision 18A-JP-2923 | May 2, 2019                            Page 8 of 9
       visitation rights to Grandmother. We therefore conclude that Mother has not

       demonstrated that the trial court clearly erred in granting visitation rights.


[16]   Affirmed.


       Riley, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-JP-2923 | May 2, 2019   Page 9 of 9
