MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                     FILED
this Memorandum Decision shall not be                                 May 11 2018, 8:20 am

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


ATTORNEY FOR APPELLANT                                  ATTORNEY FOR APPELLEES
Matthew C. Maples                                       Pamela G. Grant-Taylor
Hocker & Associates, LLC                                Law Office of Pamela Grant
Indianapolis, Indiana                                   Taylor
                                                        Indianapolis, Indiana




                                          IN THE
    COURT OF APPEALS OF INDIANA

In re the Guardianship of: A.S.S.                       May 11, 2018

Glen Scisney,                                           Court of Appeals Case No.
                                                        49A02-1708-GU-1921
Appellant-Respondent,
                                                        Appeal from the Marion Superior
        v.                                              Court
                                                        The Honorable Steven R.
Saleem Adams and Tamara                                 Eichholtz, Judge
Adams,                                                  Trial Court Cause No.
                                                        49D08-1604-GU-11850
Appellees-Petitioners.



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1708-GU-1921 | May 11, 2018            Page 1 of 14
[1]   Glen Scisney appeals the trial court’s order naming Saleem and Tamara Adams

      as the guardians of A.S.S. (“Child”). Scisney raises several issues which we

      revise and restate as whether the trial court abused its discretion in naming the

      Adamses as the guardians of Child. We affirm.


                                       Facts and Procedural History

[2]   Child and A.E.S., who was Child’s twin sibling (Child and A.E.S., together, the

      “Children”), were born on January 27, 2016, to Kimberly Scisney (“Mother”). 1

      Mother was overwhelmed with the idea of parenting the Children and

      approached the Adamses, who attended the same church as Mother, as

      potential persons who might adopt the Children. The Children were placed

      with the Adamses on March 20, 2016, and Mother later signed a power of

      attorney and health powers of attorney granting attorney-in-fact powers to the

      Adamses to act on behalf of the Children. A short time later, Mother died as a

      result of an automobile accident. On April 5, 2016, the Adamses filed a

      petition requesting that the court appoint them as Child’s guardians and stating

      that Child had been in their care since March 20, 2016, when Mother expressed

      that her desire for Child to live with them, and that both of Child’s parents had

      signed a power of attorney on March 28, 2016. The court appointed a guardian

      ad litem (the “GAL”), and the GAL filed a report with the court on June 20,




      1
       The trial court issued a similar order naming the Adamses as the guardians of A.E.S. under cause number
      49D08-1604-GU-11848 (“Cause No. 848”). We also issue a memorandum decision today affirming the trial
      court’s order in Cause No. 848.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1708-GU-1921 | May 11, 2018          Page 2 of 14
      2016. The court held a hearing on that day and later issued an order stating

      that Scisney is the maternal grandfather of Child and that Scisney appeared at

      the June 20, 2016 hearing and indicated he would be seeking guardianship and

      did not contest the appointment of the Adamses as temporary guardians and

      granting temporary guardianship of Child to them. On August 17, 2016,

      Scisney filed a motion to contest the appointment of guardianship. On August

      25, 2016, Scisney filed a counter-petition requesting that the court appoint him

      as the permanent guardian of Child.


[3]   On December 5, 2016, the court held a hearing at which it admitted into

      evidence the GAL’s report and other documentary evidence and heard

      testimony from Scisney, the Adamses, the GAL, and Devante Connor, the

      putative father of the Children, among others. On June 13, 2017, after Scisney

      filed a motion to produce order, the court issued an order naming the Adamses

      as the guardians of Child. The order provides:


              3. Kimberly Scisney is the biological mother of [the Children].

              4. Devonte Connor is the alleged father but has never filed to
              establish paternity.

              5. Kimberly Scisney was killed in an automobile accident a few
              months after giving birth to the twins.

              6. Saleem and Tamara Adams belonged to the same church that
              Kimberly Scisney attended.

              7. Kimberly Scisney approached Saleem and Tamara Adams
              about taking care of her children shortly before she died in a car
              accident.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1708-GU-1921 | May 11, 2018   Page 3 of 14
        8. Kimberly Scisney turned the twins over to Saleem and
        Tamara Adams on March 20, 2016 along with health care and
        personal power[s] of attorney[] so they could obtain medical
        attention for the children.

        9. The alleged father, Devonte Conner [sic], also signed the
        aforementioned power[s] of attorney[] even though he had not
        established paternity.

        10. Counter/Petitioner, Glenn [sic] Scisney, is the biological
        maternal grandfather of the minor twins and filed his
        Counter/Petition on August 25, 2016.

        11. Glenn Scisney resides in Madisonville, KY with his present
        wife . . . and two children . . . .

        12. The Court appointed Kids’ Voice of Indiana as Guardian ad
        Litem of the minor twins . . . .

        13. The Guardian ad Litem interviewed the petitioners and
        many other relatives and non-relatives and submitted its’ [sic]
        report to the Court on June 20, 2016.

        14. Saleem and Tamara Adams are both employed and Tamara
        Adams works from home which allows her to care for [the
        Children] at the same time.

        15. Tamara Adams testified that they now live in a home with
        3290 square feet and five bedrooms.

        16. Both of the twins suffer from medical conditions that the
        Adams[es] have monitored and taken them to doctors visits.
        [A.E.S.] has been diagnosed with sickle cell anemia and [Child]
        with tracheomalacia and laryngomalacia.

        17. Saleem and Tamara Adams have not been convicted of a
        felony.




Court of Appeals of Indiana | Memorandum Decision 49A02-1708-GU-1921 | May 11, 2018   Page 4 of 14
        18. Testimony was given that the reason the mother, Kimberly
        Scisney, did not want [Scisney] to have custody of the minor
        twins is that he had been very abusive to her.

        19. Glenn Scisney is the biological grandfather of [the Children].

        20. Glenn Scisney testified that he is employed and has two part
        time jobs one of which is in Indianapolis.

        21. Glenn Scisney also testified that he is building an addition to
        his home to accommodate his grandsons.

        22. Glenn Scisney has not had much contact with the twins and
        testified that the reason for that is the Adams[es] refused to let
        him have visitation. The report of the Guardian ad Litem
        confirms that the Adams[es] refused to allow Glenn Scisney
        visitation based on the allegations of Kimberly Scisney of his
        abusive actions against her.

        23. As mentioned above the Guardian ad Litem interviewed the
        parties to this matter and also other relatives and non-relatives
        and submitted its recommendation to the Court in its report
        dated June 20, 2016.

        24. Based on the evidence and testimony presented, the Court
        grants guardianship of the [Children], to Saleem and Tamara
        Adams.

        25. The Court also orders Saleem and Tamara Adams to allow
        visitation to Glenn Scisney based on their schedules.

        26. IT IS THEREFORE ORDERED, ADJUDGED, AND
        DECREED, that Saleem and Tamara Adams, Petitioners, are
        hereby appointed Guardians of the Person of [A.E.S.] and
        [Child], and the Clerk is directed to issue Letters of Guardianship
        to Saleem and Tamara Adams upon subscribing an Oath.




Court of Appeals of Indiana | Memorandum Decision 49A02-1708-GU-1921 | May 11, 2018   Page 5 of 14
      Appellant’s Appendix Volume 2 at 15-17. Scisney filed a motion to correct

      error, which the trial court denied.


                                                 Discussion

[4]   The issue is whether the trial court abused its discretion in naming the Adamses

      as guardians of Child. The trial court is vested with discretion in making

      determinations as to the guardianship of an incapacitated person or minor. In

      re Guardianship of A.L.C., 902 N.E.2d 343, 352 (Ind. Ct. App. 2009). This

      discretion extends to both its findings and its order. Id. We apply the abuse of

      discretion standard to review the trial court’s findings and order. Id. Because

      the court set forth findings, we look to those findings to determine whether the

      court abused its discretion. See id. The findings will not be set aside unless

      clearly erroneous. Id. Findings are clearly erroneous when the record lacks any

      facts or reasonable inferences to support them. Id. Further, we will not set

      aside the judgment unless clearly erroneous. Id. A judgment is clearly

      erroneous when unsupported by the findings of fact and conclusions thereon.

      Id.


[5]   Scisney asserts the court’s findings are not supported by the evidence, that the

      court abused its discretion in finding that the Adamses were the most suitable

      persons to be guardians of Child, that he is the most stable party in this matter

      and the most suitable person to be named guardian of Child, and that it would

      be in Child’s best interest for him to be named guardian. He argues that he

      requested the power of attorney documents but never received them, those

      documents were not offered into evidence, and the finding in paragraph 8 of the
      Court of Appeals of Indiana | Memorandum Decision 49A02-1708-GU-1921 | May 11, 2018   Page 6 of 14
      trial court’s order is not supported by evidence. He argues that the evidence

      does not support the court’s finding in paragraph 18 and that, if these findings

      were to be set aside, the remaining evidence most favorable to the Adamses

      would not support the court’s determination. He also asserts the evidence does

      not support the findings in paragraphs 7 and 14 of the court’s order. Scisney

      further argues that he is clearly the most suitable party to be named guardian

      over his own grandchild. In support of his argument, he points to his housing

      and room for Child, the length of his marriage and residence in his house, the

      fact an elementary school is located approximately one-quarter of a mile from

      his home, his employment teaching autistic children part time, and that he is

      the only relative who has petitioned to be appointed guardian. He also argues

      that the Adamses deceived Child’s family and friends by posting fake crowd-

      sourcing websites to raise money in the name of Child, have an unstable

      income, and were evicted during the proceedings in this case.


[6]   The Adamses maintain that the trial court did not err in naming them as the

      guardians of Child and correctly determined they were suitable persons to be

      appointed under Ind. Code § 29-3-5-4(2). They argue the court was not

      required to enter special findings and that the evidence supports the court’s

      findings. They assert that the GAL’s report was admitted into evidence,

      contained a copy of the power of attorney executed by Mother and Connor,

      and included information gathered from family members of Mother which

      substantiate the claim that Mother desired for Child to be in their custody. The




      Court of Appeals of Indiana | Memorandum Decision 49A02-1708-GU-1921 | May 11, 2018   Page 7 of 14
      Adamses also maintain that Scisney’s argument is simply a request to reweigh

      the evidence and reassess the credibility of the witnesses.


[7]   The guardianship statutes provide for the appointment of guardians for minors.

      See Ind. Code § 29-3-5-1. Ind. Code §§ 29-3-5 set forth proceedings for the

      appointment of a guardian, and Ind. Code § 29-3-5-3 provides that, if it is

      alleged and the court finds that the individual for whom the guardian is sought

      is an incapacitated person or a minor and the appointment of a guardian is

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

      or property of the incapacitated person or minor, the court shall appoint a

      guardian under the chapter.


[8]   At the time of the December 2016 hearing, Ind. Code § 29-3-5-4 provided:


              The court shall appoint as guardian a qualified person or persons
              most suitable and willing to serve, having due regard to the
              following:

                      (1)      Any request made by a person alleged to be an
                               incapacitated person, including designations in a
                               durable power of attorney under IC 30-5-3-4(a).

                      (2)      Any request contained in a will or other written
                               instrument.

                      (3)      A designation of a standby guardian under IC 29-3-
                               3-7.

                      (4)      Any request made by a minor who is at least
                               fourteen (14) years of age.

                      (5)      Any request made by the spouse of the alleged
                               incapacitated person.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1708-GU-1921 | May 11, 2018   Page 8 of 14
                        (6)      The relationship of the proposed guardian to the
                                 individual for whom guardianship is sought.

                        (7)      Any person acting for the incapacitated person
                                 under a durable power of attorney.

                        (8)      The best interest of the incapacitated person or
                                 minor and the property of the incapacitated person
                                 or minor.


      (Subsequently amended by Pub. L. No. 194-2017, § 7 (eff. Jul. 1, 2017)).2


[9]   Ind. Code § 29-3-5-5 provided:


               (a)      The following are entitled to consideration for
                        appointment as a guardian under section 4 of this chapter
                        in the order listed:

                        (1)      A person designated in a durable power of attorney.

                        (2)      A person designated as a standby guardian under IC
                                 29-3-3-7.

                        (3)      The spouse of an incapacitated person.

                        (4)      An adult child of an incapacitated person.

                        (5)      A parent of an incapacitated person, or a person
                                 nominated by will of a deceased parent of an
                                 incapacitated person or by any writing signed by a
                                 parent of an incapacitated person and attested to by
                                 at least two (2) witnesses.



      2
       The 2017 amendment inserted a new subsection (2) and redesignated former subsections (2) to (8) as
      subsections (3) to (9). The new subsection (2) provides: “(2) Any request made for a minor by: (A) a parent
      of the minor; or (B) a de facto custodian of the minor, including a designation in a power of attorney under
      IC 30-5-3-4(b) or IC 30-5-3-4(c).”

      Court of Appeals of Indiana | Memorandum Decision 49A02-1708-GU-1921 | May 11, 2018               Page 9 of 14
                       (6)      Any person related to an incapacitated person by
                                blood or marriage with whom the incapacitated
                                person has resided for more than six (6) months
                                before the filing of the petition.

                       (7)      A person nominated by the incapacitated person
                                who is caring for or paying for the care of the
                                incapacitated person.

               (b)     With respect to persons having equal priority, the court
                       shall select the person it considers best qualified to serve as
                       guardian. The court, acting in the best interest of the
                       incapacitated person or minor, may pass over a person
                       having priority and appoint a person having a lower
                       priority or no priority under this section.


       (Subsequently amended by Pub. L. No. 194-2017, § 8 (eff. Jul. 1, 2017)).


[10]   The court, pursuant to Ind. Code § 29-3-5-4, must give due regard to the best

       interest of a minor and, acting in the best interest of the minor, may pass over a

       person having priority and appoint a person having a lower priority or no

       priority under Ind. Code § 29-3-5-5. In re Guardianship of A.L.C., 902 N.E.2d at

       353. The key consideration, in essence, in selecting a guardian for Child is

       whether the choice of guardian is in Child’s best interest. See id.


[11]   To the extent Scisney contests the trial court’s findings in paragraphs 7, 8, 14

       and 18 of its June 13, 2017 order, we observe that Tamara testified that the

       Children had come into her care and custody on March 20, 2016, and that

       Mother had contacted her and Saleem shortly after the Children were born.

       The GAL’s report indicated that Mother was overwhelmed with the idea of

       single parenthood prior to the birth of the Children, that she attended the same

       Court of Appeals of Indiana | Memorandum Decision 49A02-1708-GU-1921 | May 11, 2018   Page 10 of 14
       church as the Adamses, and that she had approached the Adamses as potential

       persons who might adopt the Children. We further observe that the GAL’s

       report stated that, “[t]o ensure that they had the full ability to the extent

       reasonably necessary to provide all the care that might be necessary in the short

       time that they were supposed to have the children, the Adams[es] requested that

       they be given power of attorney for the children and health power of attorney”

       and “[t]hey received and kept the executed documents (which were also signed

       by the putative father, despite his legal claim as a father/parent being tenuous,

       if not nonexistent), and the GAL reviewed these during the home visit.”

       Guardian Ad Litem Exhibit I at 5. The GAL’s report included attached

       executed documents including a power of attorney and health powers of

       attorney dated in March 2016 and signed by Mother which granted attorney-in-

       fact powers to the Adams[es] to act on behalf of Child.3 Tamara testified that

       she works from home using a customer service system and phone, that she has

       the ability to care for the Children while working, and that her office is in the

       room where the Children take their naps, and Saleem indicated he is employed

       as a customer service agent for a company which provides tax return

       preparation assistance.


[12]   Further, the GAL’s report indicated that Roberta Edwards, the Children’s

       maternal grandmother, stated that she was somewhat surprised and upset that

       her daughter had not considered her for guardianship but instead went straight



       3
           The Power of Attorney for Child instrument was also signed by Connor.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1708-GU-1921 | May 11, 2018   Page 11 of 14
       to the Adamses, that in any event she could not accept care or custody of the

       Children, that she was of the opinion that Scisney has been verbally abusive to

       Mother, that she had observed Mother crying and upset after speaking with

       Scisney on the phone a few times, that Mother had unequivocally expressed a

       desire for the Adamses to have and hopefully adopt the Children, and that they

       allowed her and any of her extended family to see the Children. The report also

       indicated that Crista Spiller, Mother’s cousin, stated that Scisney “was the last

       person to find out from [Mother] about the pregnancy and that [Mother] had

       stated to her that [Scisney] was the very last person on earth that she would

       want to have her children” and that “[s]he recalled that [Scisney] had told

       [Mother] he would disown her if she ever got pregnant, and that he did in fact

       do so when he found out.” Id. at 9-10. The report further indicated that

       Scisney stated he had counseled his daughter not to become pregnant out of

       wedlock and having such “bastards” would be wrong and greatly disappoint

       him, that Mother would become upset at this fatherly advice, and that in no

       way was the interaction ever abusive or less than fatherly or loving. Id. at 12.

       The GAL’s report, in its summary, indicated that it was widely acknowledged

       that Mother desired that the Children be placed with the Adamses. We cannot

       say that the record lacks any facts or reasonable inferences to support the

       court’s findings in paragraphs 7, 8, 14 and 18 of its order.


[13]   The record further reveals that the court admitted documentary evidence and

       testimony related to the suitability of the Adamses and Scisney as guardians

       and the considerations set forth in Ind. Code §§ 29-3-5-4 and -5. The court


       Court of Appeals of Indiana | Memorandum Decision 49A02-1708-GU-1921 | May 11, 2018   Page 12 of 14
admitted evidence regarding the parties’ financial resources, employment and

earnings, and the stability of those resources and earnings. It also heard

testimony regarding the Adamses’ care of the Children, the health histories of

the Children, the history and stability of the Adamses’ housing, and that Go

Fund Me funds were established to solicit donations for the Children and

Mother.4 The court also heard testimony regarding Scisney’s home and room

for the Children, his marriage and children, his proximity to an elementary

school, and his work with children and other work. The reports regarding

Mother’s relationship with Scisney and her desire for the Children to be placed

with the Adamses were also before the court. Mother and Connor executed a

Power of Attorney for Child in favor of the Adamses with respect to the care of

Child on March 28, 2016. The court was able to review and consider the

evidence, including the evidence related to the parties’ resources and families

and to Mother’s wishes, in exercising its discretion in determining the most

suitable persons to be appointed as the guardians of Child under the

circumstances. Scisney has not shown that the trial court’s findings are not

supported by the record or that the court’s judgment is not supported by its

findings.




4
  The GAL’s report attached copies of a Go Fund Me webpage indicating that $300 had been raised for
Children and a similar page indicating that $135 had been raised for Mother. The Go Fund Me page for
Mother indicates it was established or sponsored by Edwards, and the GAL testified that the Adamses
indicated that the funds were transferred to their personal account.

Court of Appeals of Indiana | Memorandum Decision 49A02-1708-GU-1921 | May 11, 2018         Page 13 of 14
[14]   Based upon the evidence and testimony presented at the December 5, 2016

       hearing, we are unable to conclude that the trial court abused its discretion in

       appointing the Adamses as the guardians of Child.


                                                  Conclusion

[15]   For the foregoing reasons, we affirm the order of the trial court naming the

       Adamses as guardians of Child.


[16]   Affirmed.


       Bailey, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1708-GU-1921 | May 11, 2018   Page 14 of 14
