      MEMORANDUM DECISION
                                                                              FILED
      Pursuant to Ind. Appellate Rule 65(D),                              Apr 26 2016, 9:44 am
      this Memorandum Decision shall not be
                                                                              CLERK
      regarded as precedent or cited before any                           Indiana Supreme Court
                                                                             Court of Appeals
      court except for the purpose of establishing                             and Tax Court

      the defense of res judicata, collateral
      estoppel, or the law of the case.


      ATTORNEYS FOR APPELLANT
      Larry G. Evans
      Kevin G. Kerr
      Hoeppner Wagner & Evans, LLP
      Valparaiso, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      In re the Guardianship of                                April 26, 2016
      K.K.L., C.T.L., Q.C.L., and                              Court of Appeals Case No.
      A.S.L. (minor children),                                 46A04-1507-GU-921
                                                               Appeal from the LaPorte Circuit
                                                               Court
      Dorothy Denise Carroll
                                                               The Honorable Thomas J.
      Appellant.                                               Alevizos, Judge
                                                               Trial Court Cause No.
                                                               46C01-1212-GU-77



      Mathias, Judge.


[1]   Dorothy Denise Carroll (“Carroll”) appeals the order of the LaPorte Circuit

      Court removing her as guardian of the estates of K.K.L., C.T.L., Q.C.L., and

      A.S.L. (collectively “the Children”) and trustee over the Children’s trusts. On

      Court of Appeals of Indiana | Memorandum Decision 46A04-1507-GU-921 | April 26, 2016        Page 1 of 18
      appeal, Carroll claims that the evidence does not support the trial court’s

      decision to remove her as guardian of the Children’s estates and that the trial

      court erred by removing her as trustee without giving her notice or an

      opportunity to be heard on this issue.

[2]   We reverse.


                                    Facts and Procedural History

[3]   This case involves the children of John Larkin (“Larkin”) and Stacey Larkin

      (“Stacey”). As we explained in a previous appeal:


              On December 11, 2012, police were dispatched to Larkin’s
              residence following a report of a shooting. When an officer
              arrived, he found Larkin’s wife, [Stacey], deceased in the closet.
              An autopsy later determined that she died from two gunshot
              wounds.


      Larkin v. State, 43 N.E.3d 1281, 1283 (Ind. Ct. App. 2015). Larkin was

      subsequently charged with voluntary manslaughter.


[4]   Carroll is Larkin’s sister and the Children’s aunt. Carroll is an attorney licensed

      to practice law in Illinois. She works for the Chicago Park District and manages

      bond expenditures. Shortly after Stacey’s death, Carroll petitioned the trial

      court to serve as guardian of the persons and estates of the Children. The trial

      court granted this petition and issued an order on April 11, 2013, stating in

      relevant part that Carroll “shall serve [as guardian] upon taking an oath and

      without posting bond.” Appellant’s App. p. 13. Carroll filed her acceptance and

      oath on May 29, 2013, and the trial court subsequently issued letters of
      Court of Appeals of Indiana | Memorandum Decision 46A04-1507-GU-921 | April 26, 2016   Page 2 of 18
      guardianship the following day. Carroll was also granted legal and physical

      custody of the Children.

[5]   On August 29, 2014, Carroll petitioned the trial court to establish living trusts

      for the benefit of the Children. The trial court granted the petition to establish

      the trusts, and Carroll was appointed as trustee. Thus, Carroll was serving as

      both guardian of the Children’s persons and estates and as trustee of their

      individual trusts. Larkin disclaimed any interest he had in the proceeds of his

      late wife’s insurance policy, and the trusts were funded with $253,424.66 each

      from the proceeds of the policy.


[6]   On May 3, 2013, Carroll, Larkin, Stacey’s parents Scott and Tracy Simon (“the

      Simons”), and the Department of Child Services (“DCS”) filed a joint

      stipulation regarding the care and custody of the children. The stipulation

      provided among other things: (1) that the Children should be reunited with their

      father because they “want to be with him and need the support of a parent after

      having lost the other parent,” (2) that Larkin should participate in family

      therapy with the Children, (3) that the Children should continue with individual

      therapy, and (4) that the parties all agreed with the recommendation of the

      therapist that Larkin return to his residence with the Children. Appellant’s App.

      pp. 19-22.

[7]   Stacey’s will designated as alternate personal representative Anne Larkin

      Tuomey (“Tuomey”). Tuomey is Larkin’s sister and thus Stacey’s sister-in-law

      and lives in Massachusetts. On June 20, 2013, Tuomey appointed Carroll as her


      Court of Appeals of Indiana | Memorandum Decision 46A04-1507-GU-921 | April 26, 2016   Page 3 of 18
      resident agent, listing the Larkin family home as Carroll’s address. After being

      appointed as guardian and trustee in early 2013, Carroll took time off from

      work under the federal Family and Medical Leave Act (“FMLA”) and began to

      live with the Children at their family home for approximately thirteen weeks.

      She then began to see the Children less frequently but still approximately ten

      times per month.

[8]   On March 18, 2015, Carroll filed a verified petition seeking to obtain the trial

      court’s approval to purchase the Children’s family home from Larkin. The

      petition alleged that Larkin was having financial difficulties because he was

      unable to obtain employment due to a pending charge of voluntary

      manslaughter arising from Mother’s death. The petition also alleged that,

      because of this charge, the home was on the verge of foreclosure. An appraiser’s

      report valued the home at $850,000 for the real property alone. Carroll

      negotiated a price of $650,000 to purchase the home and all of its contents,

      including furniture. In exchange for permission to continue to live in the home,

      Larkin also agreed to pay property taxes, insurance, and utilities totaling over

      $1,200 per month. Even though the trust document contained no requirement

      that Carroll seek trial court approval of the purchase, she sought such approval

      because the transaction involved her brother.

[9]   The trial court held a hearing on Carroll’s petition on May 13, 2015. Counsel

      for the Simons also appeared at the hearing and stipulated that the Children had

      been raised in the home and that it was in the best interests of the Children to

      remain in the home. The Simons, however, stated that they had insufficient

      Court of Appeals of Indiana | Memorandum Decision 46A04-1507-GU-921 | April 26, 2016   Page 4 of 18
       information to determine whether purchasing the home from Larkin was in the

       best financial interests of the Children.

[10]   Carroll presented the testimony of Toni Henke-Wheeler (“Henke-Wheeler”),

       who provided family and individual counseling to the Children. Henke-

       Wheeler testified that the Children were dealing with grief stemming from the

       death of their mother, their father’s alleged role in the death of their mother,

       and the perceived “loss” of their mother during the latter part of her life due to

       her substance abuse problems. When Henke-Wheeler referred to the “alleged”

       role Larkin played in the death of the Children’s mother, the trial court

       interrupted her and stated:

               So is the — the involvement isn’t alleged. The nature of the
               involvement is what’s at issue. Is that my understanding of the
               criminal case? So you don’t need to [use] alleged there.


       Tr. pp. 10-11. Henke-Wheeler was then cross-examined by Larkin’s counsel,

       who asked the question, “Given the fact that the children now only have one

       parent, their father, in your opinion, if he is removed from their presence, what

       impact would his absence have on the children?” Tr. p. 14. Before Henke-

       Wheeler could respond, the trial court objected sua sponte, stating “It’s

       irrelevant. You don’t have to object. It’s irrelevant.” Id.


[11]   The court then denied the petition from the bench, stating, “The Court denies

       the request. There are adequate places you can rent, buy, purchase to stay in

       the same neighborhood and in the same schools.” Id. at 16. The trial court

       issued an order that same day providing in part:
       Court of Appeals of Indiana | Memorandum Decision 46A04-1507-GU-921 | April 26, 2016   Page 5 of 18
        1. The Petition alleges that the Larkin family home is in danger
        of being “foreclosed upon.” However, Guardian offered no
        evidence to substantiate that claim.
        2. The only evidence presented was the testimony of Toni
        Henke-Wheeler, ACSW/LCSW, the children’s social worker.
        Ms. Henke-Wheeler testified that it is in the children’s best
        interest to maintain their neighborhood, friends and school.
        Upon cross-examination, she reiterated that school was the
        principal focus. She also indicated that she had no knowledge as
        to the children’s financial interests.
        3. Absent from the presentation of evidence was discussion of
        the effect that this large expenditure might have regarding funds
        needed for the children’s education, therapy, medical or other
        future needs.
        4. Also absent was a discussion, assuming the house is in danger
        of being lost, of how the children could maintain their
        neighborhood, friends and school without spending $650,000
        ($460,000 for the note and $190,000 to father). There was no
        evidence of any other housing options being pursued.
        5. Even if the Guardians proved the house was in danger of
        being lost and the house itself was important to the interest of the
        children, there are numerous other ways this could be
        accomplished short of having the children’s trust, pay $190,000
        to the man allegedly criminally responsible for the death of their
        mother. Amongst those, the Guardian could have requested the
        expenditure of some funds to help pay the mortgage. Also, the
        trust could pay off the note and take a mortgage back. There was
        no evidence that any of this was contemplated.
        6. The Guardian is the father’s sister. The CASA office indicated
        none of this proposal was discussed with the children’s CASA.
        7. The Guardian has not proven that it would be in the
        children’s best interest to have the trust purchase the family home
        for $650,000.



Court of Appeals of Indiana | Memorandum Decision 46A04-1507-GU-921 | April 26, 2016   Page 6 of 18
       Appellant’s App. pp. 115-16. Carroll did not appeal this order and did not

       purchase the home.

[12]   On May 20, 2015, the trial court sua sponte ordered Carroll to appear and show

       cause why she should not be removed as guardian of the Children’s estates and

       as personal representative of the estate of Stacey Larkin.1 The trial court cited

       the following reasons for its order:

                  1.       It appears from the Chronological Case Summary that
                           [Carroll] has not filed an accounting;
                  2.       [Carroll] caused to be filed a petition to have the wards’
                           trust purchase her brother, John Larkin’s, house. The
                           Court finds this as evidence that she was more interested
                           in her brother’s fiduciary interest than the fiduciary
                           interests of the wards.
                  3.       More importantly, [Carroll] did not, in her capacity as
                           personal representative/Guardian, file a lawsuit against
                           (her brother) John Larkin, who is the individual charged
                           with the homicide of the wards’ mother (and the Estate’s
                           decedent). It appears that the statute of limitations has
                           now passed for her to attempt to bring suit at this time.

       Appellant’s App. pp. 117-18.


[13]   A hearing was held on the trial court’s show cause order on June 8, 2015. At

       the beginning of the hearing, the trial court informed the parties, “I’m more

       interested in finding out why it seems that the guardian and the estate seem to




       1
           As explained below, Carroll was, in fact, not the personal representative of Stacey’s estate.


       Court of Appeals of Indiana | Memorandum Decision 46A04-1507-GU-921 | April 26, 2016                Page 7 of 18
       be working for John Larkin as opposed to his children who are the estate of

       Stacey Larkin, and I want some explanations.” Tr. p. 23.

[14]   Carroll testified and explained that, at the outset of the guardianship, she or

       Larkin paid for the Children’s expenses. She later hired counsel to work with

       Stacey’s insurer to ensure that the Children received the proceeds of Stacey’s

       life insurance. Carroll then took these proceeds and placed them in an account

       with Chase Bank. She also spoke with a bank employee about investing the

       trust funds but backed out when the bank’s fees were higher than what she had

       been led to believe. She also thought that it was a poor time to invest and did

       not want to “get in at the top of the market.” Tr. p. 39. Carroll testified that she

       thought purchasing the home would be a good investment of the trust assets

       because “they would be getting a 20 percent -- really a 24 percent return

       immediately.” Tr. p. 40. She stated she had sought the court’s approval, and “if

       the Court said no, then it’s not a good idea.” Id. at 52.


[15]   Carroll’s counsel also explained that she had not yet filed an accounting

       because he calculated the start of the guardianship from the date Carroll

       received her letters of guardianship, not the date of the trial court’s order

       approving the appointment. Accordingly, counsel thought the accounting was

       not due until the end of June 2015. When notified of the issue by the trial

       court’s show cause order, Carroll’s counsel filed a complete accounting as to

       one of the Children and a partial accounting as to the others. Counsel expected

       the complete accounting on the remaining children to be completed “very



       Court of Appeals of Indiana | Memorandum Decision 46A04-1507-GU-921 | April 26, 2016   Page 8 of 18
shortly.”2 Tr. p. 24. The trial court took the matter under advisement and, on

June 17, 2015, issued an order that stated in relevant part:

           The Court, having moved sua sponte, for rule to show cause,
           makes the following additional findings:
           1.       The probate court may remove a guardian who has failed
                    to perform a duty imposed by law or lawful order of the
                    court or has other wise proven unsuitable of discharging
                    her responsibilities. See Carr v. Carr, 685 N.E.2d 92, 97
                    (Ind. Ct. App. 1997). See also Ind. Code § 29-3-12-4(a);
                    Ind. Code § 29-1-10-6.
           2.       Dorothy Denise Carroll, by her own testimony, admits
                    that no due diligence was made regarding whether the
                    house was in danger of being foreclosed upon. The only
                    source of the foreclosure information comes from her
                    brother, Mr. John Larkin. This fact alone counters
                    Dorothy Denise Carroll’s assertion that she acted with due
                    diligence in attempting to have her wards’ estates purchase
                    the home from John Larkin. To date, the Court has been
                    presented no other evidence that the mortgage holder was
                    threatening foreclosure regarding the house. Had Dorothy
                    Denise Carroll actually attempted to do “due diligence” in
                    this regard, she would have been in the position to either
                    ascertain that foreclosure was not impending or if it was,
                    to discuss alternative solutions with the mortgage lender
                    and John Larkin.
           3.       Although Dorothy Denise Carroll indicates that her
                    experience has allowed her to be a great steward of her
                    wards’ estate, the evidence is that the estates’ holdings are
                    all in a rudimentary account at J.P. Morgan Chase earning
                    less than the rate of inflation (.80%).



2
    Accountings as to all the Children were filed on July 1, 2015.


Court of Appeals of Indiana | Memorandum Decision 46A04-1507-GU-921 | April 26, 2016   Page 9 of 18
        4.       Although Dorothy Denise Carroll is a licensed attorney
                 (admittedly in Illinois), Dorothy Denise Carroll has
                 indicated that she was unaware of the deadline for filling
                 an accounting. However, even though the Courts’ Rule to
                 Show Cause informed her of her failure to meet the
                 deadline, to date only a partial accounting has been filed.
        5.       Dorothy Denise Carroll has been serving as a Resident
                 Agent for the Estate of Stacey Larkin (the wards’ mother),
                 thus allowing her sister (a Massachusetts resident) to be
                 the Personal Representative. However, Dorothy Denise
                 Carroll admitted under oath that she has not been an
                 Indiana resident during any times relevant to the matters
                 at hand. This troubles the Court and further evinces the
                 Court’s belief that she is no longer a person to be Guardian
                 of these Estates.
        6.       The Court, having appointed Jennifer Koethe as guardian
                 ad litem for the wards, and previously appointed a LaPorte
                 Court Appointed Special Advocate (CASA) to the wards,
                 hereby removes Dorothy Denise Carroll as guardian of the
                 wards’ estate and appoints Harbor Trust as Corporate
                 Guardian of the wards’ estate without bond as the Court
                 finds that bond is not necessary.
        7.       The Court ORDERS the GAL and CASA to submit a
                 report within thirty (30) days of this Court Order and
                 recommend whether Dorothy Denise Carroll should
                 remain Guardian of the Wards’ person.
        8.       Dorothy Denise Carroll is NOT absolved from providing a
                 complete accounting record of the wards’ estate to the
                 court. This accounting shall be submitted to the Court no
                 later than July 1, 2015.
        9.       The clerk shall issue to Harbor Trust upon guardian’s
                 filling [sic] of Oath and Acceptance as stated under Ind.
                 Code § 29-3-7-3(2)(A) and (B).
        IT IS, THEREFORE, ORDERED that these additional findings
        of fact be entered, that Dorothy Denise Carroll be removed as
Court of Appeals of Indiana | Memorandum Decision 46A04-1507-GU-921 | April 26, 2016   Page 10 of 18
               guardian of the wards’ estate, that Harbor Trust be appointed
               Corporate Guardian’s of the wards’ estate and that the GAL and
               CASA submit a report regarding whether Dorothy Denise
               Carroll should remain guardian of the wards’ person, that
               Dorothy Denise Carroll must submit a complete accounting
               report to the Court no later than July 1, 2015 and that the clerks
               issue a letter to Harbor Trust upon guardian’s filling [sic] of Oath
               and Acceptance.

       Appellant’s App. pp. 7-8.


[16]   On July 21, 2015, the GAL filed a motion to clarify the court’s June 17 order.

       Specifically, the GAL sought to clarify whether the trial court had removed

       Carroll as trustee in addition to removing her as guardian of the Children’s

       estates. The trial court responded on July 24, 2015, entering an order removing

       Carroll as trustee of the Children’s trusts.3 Carroll now appeals.

                                              Standard of Review

[17]   Carroll first argues that the trial court improperly removed her as guardian of

       the Children’s estates. Decisions in guardianship proceedings are within its

       discretion of the trial court. Ind. Code § 29-3-2-4(a) (“[A]ll findings, orders, or

       other proceedings under this [guardianship] article shall be in the discretion of

       the court unless otherwise provided in this article.”); see also In re Guardianship of

       M.N.S., 23 N.E.3d 759, 765 (Ind. Ct. App. 2014). Accordingly, we review the

       trial court’s order only for an abuse of this discretion. Id. On appeal, we will not




       3
        On September 8, 2015, the trial court granted Carroll’s motion for a change of judge and recused himself,
       and a special judge was appointed on September 25, 2015.

       Court of Appeals of Indiana | Memorandum Decision 46A04-1507-GU-921 | April 26, 2016           Page 11 of 18
       reweigh the evidence nor will we reassess the credibility of witnesses; instead,

       we will consider the evidence most favorable to the judgment with all

       reasonable inferences drawn in favor of the judgment. Id. at 766.


[18]   Tempering this deferential standard of review is the fact that only Carroll has

       filed an appellate brief. When the appellee fails to submit a brief, we will not

       undertake the burden of developing an argument on her behalf. Geico Ins. Co. v.

       Graham, 14 N.E.3d 854, 857 (Ind. Ct. App. 2014) (citing Trinity Homes, LLC v.

       Fang, 848 N.E.2d 1065, 1068 (Ind. 2006)). Instead, we will reverse the trial

       court’s judgment if the appellant’s brief presents a case of prima facie error. Id. In

       this context, prima facie error is defined as, “at first sight, on first appearance, or

       on the face of it.” Id. (quoting Fang, 848 N.E.2d at 1068)). This “prima facie

       error rule” protects the court on appeal and takes from us the burden of

       controverting arguments advanced for reversal, a duty which remains with the

       appellee. Id.


               I. Removal of Carroll as Guardian of the Children’s Estates

[19]   Carroll claims that the trial court abused its discretion in removing her as

       guardian of the Children’s estates. From the language of the order, it is evident

       that the trial court based its decision to remove Carroll as guardian on four

       grounds: (A) that Carroll had not diligently researched the financial soundness

       of purchasing Larkin’s home; (B) that Carroll had invested the Children’s

       money in an account that earned little interest; (C) that Carroll had not timely

       filed the accountings required by the guardianship statutes; and (D) that Carroll


       Court of Appeals of Indiana | Memorandum Decision 46A04-1507-GU-921 | April 26, 2016   Page 12 of 18
       was serving as resident agent of the personal estate of Stacey Larkin even

       though she was not currently living in Indiana.4


       A. Request to Purchase Larkin’s Home

[20]   With regard to the first basis for the trial court’s decision, Carroll argues that

       she presented evidence that the home was appraised at $850,000 without its

       contents and that she had negotiated a price of $650,000 for the house and its

       contents, in addition to allowing Larkin to live in the home in exchange for

       paying taxes, insurance, and utilities totaling $1,200. Of course, the trial court

       did not have to credit the testimony that the house was on the verge of

       foreclosure, and the trial court rightly noted that Carroll presented no evidence

       that she had offered to simply pay the mortgage payments or the balance of the

       note, as opposed to a deal which gave her brother almost $200,000 in profit.

       However, all the parties, even Stacey’s parents, agreed that it was in the best

       interests of the Children to stay in their family home. Also, the Children’s

       therapist thought that the Children should stay in their family home to assist in

       the process of dealing with the loss of their mother.

[21]   We also note that Carroll did not purchase the home from her brother. All she

       did was request the trial court’s approval of the purchase. We agree with Carroll

       that simply seeking the trial court’s approval should not be considered as a



       4
         Carroll is correct to note that the trial court’s inquiry into why she had not considered filing a wrongful
       death claim against Larkin on behalf of the Children was misplaced because she was not the personal
       representative of the estate of Stacey Larkin. The trial court, however, acknowledged this at the hearing and
       did not base its decision to remove Carroll as guardian on this basis.

       Court of Appeals of Indiana | Memorandum Decision 46A04-1507-GU-921 | April 26, 2016             Page 13 of 18
       reason for removing her as guardian of the Children’s estates. See Fletcher Trust

       Co. v. Hines, 211 Ind. 111, 118, 4 N.E.2d 562, 565 (1936) (“Although it is not

       necessary to obtain a court order to sell, it is certainly the wise and sound policy

       on the part of a guardian to secure such an order not only for the protection of

       the ward’s interest, but also for his own.”). Although her proposal might not

       have been the most financially prudent way for the Children to remain in the

       family home, it was not so unreasonable that simply seeking the trial court’s

       approval justifies removing her as guardian.


       B. Investment of Children’s Funds

[22]   Carroll also takes issue with the trial court’s criticism of her decision to invest

       the Children’s funds in a bank account earning only 0.8% interest, which the

       trial court believed was less than the rate of inflation. Carroll notes that no

       evidence was presented regarding the rate of inflation. Moreover, we may take

       judicial notice5 that the rate of inflation for 2015, as calculated by the federal

       Bureau of Labor Statistics, was 0.1187%. See http://www.bls.gov/data/

[23]   inflation_calculator.htm. Thus, the trial court was factually incorrect in

       concluding that the interest rate was less than the rate of inflation and should

       not have held the low rate of interest on the accounts against Carroll.




       5
         See Vore v. Vore, 563 N.E.2d 154, 157 (Ind. Ct. App. 1990), aff’d, 573 N.E.2d 397 (Ind. 1991) (approving trial
       court’s taking judicial notice of economic inflation); 31A C.J.S. Evidence § 140 (noting that courts have taken
       judicial notice of historical inflation rates).

       Court of Appeals of Indiana | Memorandum Decision 46A04-1507-GU-921 | April 26, 2016              Page 14 of 18
       C. Guardianship Accounting

[24]   The trial court also faulted Carroll for failing to file an accounting for the

       guardianships in a timely fashion. On appeal, Carroll argues that she did file the

       accountings on time, and even if she did not, she had a good faith basis for

       doing so, and no harm resulted. The relevant statute provides that, unless

       otherwise provided by the court, a guardian “shall file with the court . . . at least

       biennially, not more than thirty (30) days after the anniversary date of the

       guardian’s appointment . . . a verified account of the guardian’s

       administration.” Ind. Code § 29-3-9-6(a)(1). Thus, Carroll was required to file

       an accounting of her guardianship no later than thirty days after the two-year

       anniversary of her appointment. The confusion here arises from the calculation

       of the anniversary of Carroll’s appointment as guardian.

[25]   Carroll notes that the trial court’s guardianship appointment order provided

       that Carroll “shall serve upon taking an oath[.]” Appellant’s App. p. 13. This

       tracks the statutory requirement letters of appointment of a guardian may be

       issued only after the guardian takes an oath. See Ind. Code § 29-3-7-3(a)(1).

       Carroll filed her acceptance and oath on May 29, 2013. Thirty days from the

       two-year anniversary of this date is June 28, 2015. The trial court issued its

       show-cause order on May 20, 2015. Therefore, no accounting was yet due, nor

       was the accounting due at the time of the show-cause hearing on June 8, 2015,

       yet Carroll had already filed a complete accounting for one of the children and

       a partial accounting for the other children as of the hearing date. Accordingly,

       the trial court should not have considered that Carroll had not yet filed her

       Court of Appeals of Indiana | Memorandum Decision 46A04-1507-GU-921 | April 26, 2016   Page 15 of 18
       guardianship accountings as evidence that Carroll had not been diligent in her

       role as guardian.


       D. Carroll Serving as Resident Agent

[26]   The trial court also faulted Carroll for serving as resident agent of the Estate of

       Stacey Larkin even though she admitted that she was currently living in

       Chicago, Illinois. Pursuant to Indiana Code section 29-1-10-1(d)(2), a

       nonresident may serve as a personal representative if the nonresident meets

       certain qualifications, including “notice of the appointment of a resident agent

       to accept service of process, notices, and other documents.” We are unable to

       find a statutory definition of “resident agent” in the probate code, but Carroll

       argues on appeal that she could still serve as a resident agent even if her

       domicile was not in Indiana.

[27]   First, we think that this is only tangentially related to Carroll’s role as guardian.

       Moreover, the evidence was uncontroverted that, immediately after Stacey

       Larkin’s death, Carroll took time off under the FMLA and did reside with the

       Children in Indiana for several weeks. Even after she moved back to Illinois,

       Carroll spent approximately ten days per month with the Children in Indiana.

       Carroll’s address as resident agent was the Larkin family home. Therefore, she

       was still able to accept service of process, notices, and other documents as

       required by statute. Although we do not condone Carroll’s acting as a resident

       agent while not residing in Indiana, without any evidence of any resulting

       harm, we cannot say that this is grounds for removing her as guardian of the

       Children’s estates.
       Court of Appeals of Indiana | Memorandum Decision 46A04-1507-GU-921 | April 26, 2016   Page 16 of 18
[28]   In short, Carroll has established prima facie error in the trial court’s order

       removing her as guardian of the Children’s estates.

                 II. Removal of Carroll as Trustee of the Children’s Trusts

[29]   Carroll also claims that the trial court erred when it removed her as trustee of

       the Children’s trusts. Carroll notes that the trial court’s show-cause order did

       not mention anything about the potential of removing her as trustee, nor did the

       trial court’s initial order removing Carroll as guardian mention removing her as

       trustee. Instead, on July 21, 2015, the GAL filed a motion seeking to clarify

       whether the trial court’s order removed Carroll as trustee in addition to

       removing her as guardian of the Children’s estates. The trial court responded on

       July 24, 2015, entering an order removing Carroll as trustee of the Children’s

       trusts.

[30]   We agree that Carroll has established prima facie error in the trial court’s order

       removing her as trustee because she had no notice that her status as trustee was

       at issue. See State ex rel. Anderson-Madison Cty. Hosp. Dev. Corp. v. Superior Court of

       Madison Cty., 245 Ind. 371, 381, 199 N.E.2d 88, 93 (1964) (holding that removal

       of trustee was improper where the removal was sua sponte, without specific

       charges being filed and notice being given, and without a reasonable

       opportunity for the trustee to be heard); In re Kilgore, 120 Ind. 94, 22 N.E. 104,

       106 (1889) (holding that trustee had right to due notice and an opportunity to be

       heard before being removed as trustee). Without giving Carroll notice and

       without holding a hearing on the issue, the trial court could not properly

       remove Carroll as trustee.
       Court of Appeals of Indiana | Memorandum Decision 46A04-1507-GU-921 | April 26, 2016   Page 17 of 18
                                                  Conclusion

[31]   Carroll has established prima facie error in the trial court’s order removing her as

       guardian of the Children’s estates and the trial court’s order removing her as

       trustee of the Children’s trusts.


[32]   Reversed.


       Kirsch, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 46A04-1507-GU-921 | April 26, 2016   Page 18 of 18
