MEMORANDUM DECISION
                                                                       FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                             Oct 14 2016, 8:42 am

regarded as precedent or cited before any                              CLERK
                                                                   Indiana Supreme Court
court except for the purpose of establishing                          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
Mary Beth Mock                                           Jason J. Pattison
Law Office of Mary Beth Mock                             Jenner, Pattison, Sutter & Wynn,
Madison, Indiana                                         LLP
                                                         Madison, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Guardianship of S.S. and                          October 14, 2016
J.N., Minor Children,                                    Court of Appeals Case No.
                                                         39A01-1512-GU-2289
                                                         Appeal from the Jefferson Circuit
Marla New,                                               Court
Appellant-Respondent,                                    The Honorable Darrell M. Auxier,
                                                         Judge
        v.
                                                         Trial Court Cause No.
                                                         39C01-1405-GU-23
Kenneth Scrogham and Teresa
Scrogham,
Appellees-Petitioners.




Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 39A01-1512-GU-2289 | October 14, 2016    Page 1 of 31
[1]   Marla New (“Mother”) appeals the trial court’s order granting the petition for

      guardianship of her daughter, S.S., filed by S.S.’s paternal grandfather Kenneth

      Scrogham and his wife Teresa (collectively, the “Scroghams”) and the denial of

      her motion to correct error. Mother raises four issues which we consolidate and

      restate as whether the court abused its discretion in granting the petition for

      guardianship. We affirm.


                                       Facts and Procedural History

[2]   Mother and Robert Scrogham are the biological parents of S.S., born February

      22, 2004.1 Mother and Brent Hammons are the biological parents of J.N., born

      May 25, 2005.


[3]   At some point, there were allegations that Mother had individuals staying at her

      home, that there was some sort of argument between one of those individuals

      and S.S., that someone pushed S.S., and that this person was still residing in the

      home. On April 22, 2014, Mother told Family Case Manager Dosha Campbell

      (“FCM Campbell”) that her niece and her niece’s boyfriend, Derrick Gotts, had

      been staying there “on and off,” that Gotts pushed S.S., and that as soon as

      Mother found out about it she made her niece and Gotts leave the home

      because they had “the evil spirits.” Transcript at 14-15. Mother made some

      “odd statements” regarding evil spirits and demons and said that she “would




      1
       At the May 13, 2014 hearing, the Scroghams’ attorney indicated that he had a waiver and notice of hearing
      and consent to guardianship signed by Robert Scrogham. At the time of the December 2, 2014 hearing,
      Robert Scrogham was incarcerated.

      Court of Appeals of Indiana | Memorandum Decision 39A01-1512-GU-2289 | October 14, 2016        Page 2 of 31
      tell S.S. to get on the right of her because that’s where the good spirits were

      were on the right.” Id. at 15.


[4]   The next day, FCM Campbell went back to Mother’s home, and Mother said

      that she was going to church, made a comment that “the Calvary was coming

      behind her,” she “just seemed really happy,” and she talked about going to the

      ocean and washing the demons away from her. Id. at 16. FCM Campbell did

      not think that Mother was necessarily under the influence of anything, but

      “thought that things were just odd, maybe more in the mental health issue.” Id.

      at 18. FCM Campbell performed a drug screen, and it was positive for

      marijuana.


[5]   That same day, Pastor Peter A. Joudry, the lead pastor of Madison Assembly of

      God, was praying publicly when Mother, who had attended the church a few

      times and had been a part of a Bible study, came down the aisle with some

      feathers, shells, leaves, spice, and a package of cigarettes. Mother was dressed

      in “cowboy, western, maybe Indian dress” and was walking directly toward

      Pastor Joudry who stepped to the side. Id. at 7. Mother then walked by him,

      went onto the platform, sat cross-legged, and placed the items in front of her.

      Pastor Joudry asked her what she was doing, and Mother said that the devil

      was on the left and God was on the right and that she could prove it biblically.

      Pastor Joudry eventually asked Mother to take her seat, and Mother left the

      items on the platform and took a seat. Mother’s back was turned to Pastor

      Joudry and it “seemed like she might have been doing some --- maybe some

      ritual thing or bowing or whatever.” Id. at 8. Pastor Mia Tran eventually came

      Court of Appeals of Indiana | Memorandum Decision 39A01-1512-GU-2289 | October 14, 2016   Page 3 of 31
      and escorted Mother into the lobby and Pastor Joudry “discerned at the time

      that . . . there may be some psychological issues . . . .” Id. at 9.


[6]   On April 24, 2014, City of Madison Police Officer Brandon Decker was

      dispatched to Mother’s townhouse regarding a “juvenile problem” around 9:00

      p.m. after the neighbors called the police. Id. at 21. As he arrived, Officer

      Decker could hear screaming and it “sounded like a woman and children.” Id.

      Officer Decker drew his service weapon, announced his presence, knocked, and

      entered the residence through an unlocked door. The lights of the residence

      were off, Officer Decker illuminated the room with his service pistol’s mounted

      flashlight, and Mother calmly invited him inside.


[7]   Officer Decker observed S.S. and J.N. sitting on the couch, and they “seemed

      to be plastered against the couch very fearful of the situation that was going

      on.” Id. at 22-23. He asked if there was someone else in the residence, and

      Mother stated that she was “ridding the house of evils.” Id. at 23. The children

      then became “extremely upset” and burst out in tears and were crying louder,

      and Officer Decker turned on the lights. Id. He observed that the children were

      not wearing shoes or socks and that there was a “glass casserole-type server at

      their feet full of water” sitting on a towel. Id. He found that “odd” and went to

      speak with Mother in the kitchen. Id.


[8]   Mother told Officer Decker that “they were ridding the house of evils,” and he

      asked her if she was on any type of medication because he could “kind of tell

      she was at an abnormal state-of-mind.” Id. Mother told him that she was not


      Court of Appeals of Indiana | Memorandum Decision 39A01-1512-GU-2289 | October 14, 2016   Page 4 of 31
       on medication, but said: “I smoked pot earlier today, but that was years ago.”

       Id. at 24. Officer Decker noticed that there were trash bags containing school

       books, clothes, and an appliance, and that Mother had thrown away one shoe

       out of each pair of the children’s shoes. Mother said that she was going to ride

       her pony to South Carolina to marry her Indian husband.


[9]    Officer Decker asked the children about the pan of water, and they became

       upset and said that Mother had been repeatedly washing their feet and that

       Mother’s “activity was scaring them.” Id. at 25. Medical personnel arrived and

       took Mother to the hospital for a mental evaluation. The children were

       released to Kenneth Scrogham who was called to the scene.


[10]   Family Case Manager Cynthia Adams (“FCM Adams”) went to the scene and

       observed that the children were scared and crying. S.S. led FCM Adams to the

       kitchen to show her some of Mother’s writings in four or five notebooks that

       contained “a lot of erratic-looking kind of writings, spiritual stuff . . . .” Id. at

       32. FCM Adams did not “go through all the stuff, but there was apparently one

       of [S.S.’s] books that had a butterfly or something on it that [Mother] thought

       was evil and tore her text book up.” Id. at 33. Mother spent the night at the

       hospital and then went to Clark County Behavioral Health where she stayed for

       eleven days.


[11]   On May 5, 2014, Family Case Manager Daniel Hoffman (“FCM Hoffman”)

       was contacted by someone who stated that the children had exited the bus or

       that Mother had taken the children off the bus and there were some concerns


       Court of Appeals of Indiana | Memorandum Decision 39A01-1512-GU-2289 | October 14, 2016   Page 5 of 31
       about whether or not the children should be with Mother. FCM Hoffman

       arrived at Mother’s house and spoke with her. Mother said that she had left the

       hospital at 11:00, that people do not understand her spiritual side, and that she

       can see things that other people cannot see. Mother was a “bit erratic” and was

       speaking “kind of fast,” and “it was hard to kind of follow what she was

       saying.” Id. at 48. The children seemed nervous. The principal from the

       children’s school arrived and talked to Mother while FCM Hoffman took S.S.

       outside the home and spoke to her. S.S. broke down in tears and said that she

       was scared to be there, was “afraid this is all going to happen again,” and that

       she thought that her Mother needed help. Id. at 47. FCM Hoffman felt

       uncomfortable for the children to be there. The principal exited the residence

       and indicated that she had talked with Mother and they had decided for the

       children to go with the grandparents.


[12]   On May 7, 2014, the Scroghams filed a Petition for Appointment of Temporary

       Co-Guardians Over Persons and Estates of Minor.2 On May 13, 2014, the

       court held a hearing on the petition. Pastor Joudry, FCM Campbell, Officer

       Decker, FCM Adams, Teresa Scrogham, and Mother testified.


[13]   Mother testified that she was unemployed, received social security disability for

       agoraphobia, did not have a fiancé, and told people that she had an Indian

       fiancé because she feels like “there is someone for me out there and that he will




       2
           The record does not contain a copy of the petition.


       Court of Appeals of Indiana | Memorandum Decision 39A01-1512-GU-2289 | October 14, 2016   Page 6 of 31
       come, and I won’t be alone to raise the kids all by myself anymore.” Id. at 35.

       She testified that she is an Indian and that “[w]e rode our ponies out west and

       then we rode the iron horses back.” Id. When asked why she was washing her

       children’s feet, she stated that she was washing dirt off their feet and that it

       calmed them down. She said that J.N. was struggling and screaming and she

       may have raised her voice, and that she smokes marijuana “daily if I can.” Id.

       at 36. She testified that she went to the church that day to let them know that

       she knows there is a God, she denied hearing voices or having hallucinations,

       and indicated that she was going to follow up with mental health counseling.

       She testified that she had a car but did not have a driver’s license because she

       was working on paying some fines.


[14]   Teresa testified that J.N. is not biologically related to her or Kenneth but that he

       has always known them as “ma-maw” and “pa-paw.” Id. at 50. Teresa

       testified that S.S. lived with them in 2006 for about seven months and that there

       were other periods of time a couple of weeks here and there when Mother

       called them and said that she was out of food or that her electricity was turned

       off and asked them to take S.S. for a while so that S.S. “wouldn’t be without.”

       Id. at 52.


[15]   At the end of the hearing, Mother testified: “I understand what you all are

       trying to do, and I’m so glad you’re trying to help, and if the Judge feels like

       they need to stay with you a little longer that’s fine with me.” Id. at 61. The

       court granted a temporary guardianship.



       Court of Appeals of Indiana | Memorandum Decision 39A01-1512-GU-2289 | October 14, 2016   Page 7 of 31
[16]   On August 7, 2014, the Scroghams filed a Petition for Appointment of Co-

       Guardians Over Persons and Estates of Minors.3 On September 25, 2014, J.N.

       was returned to Mother following allegations by three of the Scroghams’ young

       grandsons of acts between them and J.N. On November 17, 2014, the court

       entered an Agreed Order to Terminate Temporary Guardianship of J.N. and to

       Dismiss Petition for Permanent Guardianship Concerning J.N. 4


[17]   On December 2, 2014, the court held a hearing. Mother testified that she did

       not consider marijuana a drug, that she last smoked marijuana “probably---a

       month ago,” and that she smokes it “occasionally” or “[o]nce a week, twice a

       week.” Id. at 103. She stated that after being released from Clark County

       Behavioral Health, she was given Prozac and Zyprexa for depression and

       anxiety, took them for maybe a week, and then stopped taking them because

       she “just didn’t feel right” and “[t]hey just weren’t for” her. Id. at 109. She

       indicated that she followed up with Centerstone and had an initial therapy

       session on November 29, 2014, and then one other therapy session. She

       testified that she tried to contact Lifesprings, but they said she needed a referral.

       She also testified that she tried to contact DCS, but they said that they did not

       have a case on her so they could not refer her. She again denied having




       3
           The record does not contain a copy of the petition.
       4
           The record does not contain a copy of the agreed order.


       Court of Appeals of Indiana | Memorandum Decision 39A01-1512-GU-2289 | October 14, 2016   Page 8 of 31
       delusions and when asked about what occurred at the church on April 23, 2014,

       with the “Indian ritual,” she answered:


               I wouldn’t call it an Indian ritual, but the best way to describe
               that is I felt like I needed to go over there, and that’s the place
               you take things that you don’t want on you anymore, and I had a
               spiritual experience then. I took them over there and uh---
               exercised [sic] some demons if you---that’s what happened.


       Id. at 111. With respect to the washing of her children’s feet, Mother testified

       that the “children’s pastor of the church told me that when they get upset and

       they’re tired, she said, ‘Put water and oil on their feet and massage their feet,

       and it calms them down.’” Id. at 112. She also testified that she receives food

       stamps and that the children receive Medicaid. The court ordered that the

       temporary guardianship continue for the next ninety days.


[18]   On June 25, 2015, the court held another hearing. Mother testified that she had

       been unemployed since 2010 and received disability for “[a]goraphobia and

       panic and anxiety.” Id. at 274. She stated that she was diagnosed with PTSD

       and that her Centerstone records showed a long history of a bipolar diagnosis,

       but that she did not believe that she is bipolar. She testified that she first saw a

       mental health provider after she was struck from behind while riding a moped

       in 2010. She again denied ever having hallucinations or delusions, but

       conceded that her Centerstone records indicated that she had. She indicated

       that Clark County Behavioral Health discharged her after an eleven-day in-

       patient stay following the April 2014 incident and that they told her to follow

       up with her local community mental health provider, but she did not
       Court of Appeals of Indiana | Memorandum Decision 39A01-1512-GU-2289 | October 14, 2016   Page 9 of 31
       immediately do so. She was discharged with two medications, Prozac and

       Zyprexa. She stated that she then did not receive any mental health treatment

       until she received an evaluation in November 2014 from Centerstone, that she

       agreed with the records indicating that she had been there eight times since

       then, and that she missed one appointment but did not recall why. She also

       testified that she was currently on Paxil and Trazadone, that if S.S. was

       returned to her, she would continue to seek mental health treatment, and that

       she had not used marijuana since January 2015.


[19]   She testified that she still did not have a driver’s license and had only twenty-

       five dollars left to pay before she could be reinstated in Indiana and also

       acknowledged that her driving record indicates that she has at least $375 in

       reinstatement fees.5 She also acknowledged that she had thrown away a

       working PlayStation.


[20]   Guardian ad litem Marita J. Berry (“GAL Berry”) testified that she was first

       assigned the case in August 2014. When asked what was in S.S.’s best interest,

       GAL Berry testified that S.S. does much better with her grandparents and that

       S.S. has never wavered in her statement that she is afraid of the things Mother

       does and is still afraid to be at her Mother’s home. As for J.N., GAL Berry

       testified that she last saw him a week earlier, that he was clean, seemed to be




       5
        Mother stated: “after I pay the 25-dollar fine I’ll be eligible to be reinstated. You have to pay the 25 before
       you can get started on the 380.” Transcript at 306. She later stated: “Once the 25 dollars is paid over here---
       or, no, that doesn’t even apply.” Id.

       Court of Appeals of Indiana | Memorandum Decision 39A01-1512-GU-2289 | October 14, 2016            Page 10 of 31
       doing fine, and was happy to be with Mother. When asked about whether

       Mother was going to physically harm S.S., GAL Berry stated that “S.S. has told

       me every single time that [Mother] flies into a rage, she beats her chest, she

       screams, and that terrifies S.S. Now that’s not physical, but that’s certainly

       emotional abuse, and that is in my report.” Id. at 326.


[21]   After the Scroghams rested, Mother testified that she identified as being a

       Native American member of the Miami tribe, that she practiced a mixture

       between Native American spirituality and Christianity, that she believed in the

       Bible, God, the devil, and demons, and explained the purpose of tobacco and

       sage in Native American culture.


[22]   On October 29, 2015, the court granted the petition for guardianship and

       ordered that Mother have parenting time with S.S. pursuant to the Indiana

       Parenting Time Guidelines in a very detailed, nineteen-page order which states

       in part:

                                          FINDINGS OF FACT


                                                    *****


               17. On April 24, 2014, Brandon Decker, a Madison Police
               Department officer, was dispatched to Mother’s home in
               response to a disturbance call. Upon arriving he could hear
               screaming coming from a downstairs open window of Mother’s
               home. The screaming was so loud that he could hear it while
               still seated in his patrol car. Decker knocked and announced his
               presence but received no response. He then made entry into the
               home and discovered Mother, S.S. and J.N. in the living room.

       Court of Appeals of Indiana | Memorandum Decision 39A01-1512-GU-2289 | October 14, 2016   Page 11 of 31
        The children were the source of the screaming. Both children
        appeared to be very fearful and “plastered” to the couch. Decker
        asked Mother what was going on and she replied that she was
        ridding the house of evil. The children then got extremely upset
        and began crying. Decker observed that the children did not
        have shoes and socks on and that there was a pan of water and a
        towel on the couch. Mother did not seem normal and Decker
        asked her if she was on medication. She replied that she had
        smoked marijuana earlier that day but that was years ago. She
        told Decker that she was removing all evil items from the house.
        There were garbage bags filled with belongings in the home.
        Textbooks, toys, medicine, and a playstation were some of the
        items being thrown away. One shoe out of every pair was
        thrown away and shoelaces were thrown away because they were
        evil. Mother later testified that the kids were screaming because
        she was throwing away their toys and that she could do this
        because she bought the toys. She also testified that she threw the
        playstation away because the kids were always fighting over it.
        The Court concludes that Mother was throwing away the items
        under the delusional belief that they were evil. Mother also
        informed Decker that she was going to ride a pony to South
        Carolina to marry her husband.


                                             *****


        20. On April 24, 2014, after the incidents observed by Officer
        Decker, Mother was admitted to Clark County Behavioral
        Health for 11 days. In Mother’s words she was “overwhelmed”
        with life in general. She was released from Clark County
        Behavioral Health with instructions to follow up with a local
        mental health provider for therapy and prescriptions for
        medication. Mother had been prescribed Prozac and two other
        drugs but she stopped taking them without a doctor’s approval.


        21. Mother then went to Centerstone, a mental health center, for
        counseling for PTSD and anxiety. She had attended eight
Court of Appeals of Indiana | Memorandum Decision 39A01-1512-GU-2289 | October 14, 2016   Page 12 of 31
        appointments as of the time of the last hearing. She has made
        some progress towards her goals of not yelling and screaming
        and being better able to interact with her children. Marita Berry,
        the GAL, who has been actively involved in this case for
        approximately 10 months, has observed no significant changes in
        Mother’s situation.


        22. Mother suffers from Bipolar II disorder, cannabis use
        disorder, panic disorder, and posttraumatic stress disorder. She
        also suffers from agoraphobia which makes it difficult for her to
        leave her house. She is frequently stressed, restless, easily
        distracted, sometimes depressed, moody, and fearful. She angers
        easily and has frequent arguments with others. As noted by her
        therapist on November 5, 2014, she has a history of manic phases
        becoming psychotic with very odd behaviors and of non
        compliance with medication.


        23. On the date Mother was released from Clark County
        Behavioral Health, she was visited by DCS caseworker, Dan
        Hoffman. Mother told him she could see things other people
        couldn’t see. He talked to the children alone and S.S. told him
        she was scared to be there and thought Mother needed help.


        24. In the 2013-2014 school year, when the children were living
        [w]ith Mother, S.S. missed 22 and J.N. missed 18 days of school.
        The absences were due to Mother not getting them up in time to
        catch the school bus. During the 2013-2014 school year S.S. was
        very emotional; had a hard time making and keeping friends; got
        into arguments with other students easily; and despite being a
        diligent student, her homework completion was sporadic.
        During the 2014-2015 school year, when she was residing with
        the Scroghams, S.S. only missed 2 to 3 days of school. Her
        grades were better; she was more stable emotionally; and she was
        making and keeping friends much easier. She was involved in
        activities and her maturity level increased a lot.


Court of Appeals of Indiana | Memorandum Decision 39A01-1512-GU-2289 | October 14, 2016   Page 13 of 31
        25. S.S. is adamant that she wants to continue living with the
        Scroghams. She feels unsafe when living with Mother and does
        not like the screaming and cursing that goes on there. She has
        threatened to run away if she is returned to Mother’s care. She is
        also afraid of Mother’s behavior concerning Indian rituals. As of
        January 26, 2015, Mother had started to do the “Indian thing”
        again. Mother maintains that S.S. shouldn’t be afraid when
        Mother talks about her Indian stuff. During S.S.’s visits with
        Mother, J.N. gets into S.S.’s face and yells motherf_cker. S.S.
        asks Mother to make him stop. Mother laughs and tells J.N. to
        stop but he doesn’t. S.S. can’t sleep well at Mother’s home and
        she has bad dreams. Mother has told S.S. not to tell anyone
        what happens when she is there for a visit. S.S. is emotional,
        upset, and cries sometimes after her visits with Mother.


        26. Mother has inappropriately discussed the instant case with
        S.S. Mother sat her in a chair and made her read the guardian ad
        litem’s report while Mother thumped her chest and swore.
        Mother made S.S. agree that she wanted to come back and live
        with her before she could get up out of the chair. S.S. started
        agreeing with her so she would stop yelling at her.


        27. Mother is consumed with hate for the Scroghams. She has
        repeatedly made negative comments about them to and in the
        presence of S.S. Mother constantly screams about the
        Scroghams and calls them terrible names. S.S. asked Mother to
        stop calling the Scroghams names but Mother replied, “It’s
        impossible to not talk about what they are doing”. Mother has
        also been angry, belligerent, and threatening to the Scroghams
        during many of the visitation exchanges, all of which occurred in
        front of S.S.


        28. Mother exhibits poor anger control and has a history of
        screaming and cursing at the children. Despite therapy to
        address the same, her behavior has only been somewhat better.


Court of Appeals of Indiana | Memorandum Decision 39A01-1512-GU-2289 | October 14, 2016   Page 14 of 31
        29. S.S. has a strong bond with the Scroghams. Despite this
        bond, it is Mother’s intention to move to Kentucky and to not
        allow the Scroghams to see S.S. in the event that she regains
        custody.


        30. Mother has taken several other inappropriate and
        irresponsible actions such as the following:


                (a) Mother has allowed homeless persons to reside in the
                home with the children;


                (b) Mother has had S.S. use her own money to buy
                cigarettes from a neighbor;


                (c) During a home visit, Mother took the children to Wal
                Mart at 1:00 a.m. to get cigarettes. She accepted a ride
                home with a stranger. The children were afraid because
                Mother did not know the man;


                (d) At the start of this action Mother smoked marijuana
                on a daily basis. While she may have ceased use since, she
                still maintains that marijuana is not an illegal drug but is
                rather a medicinal substance; and


                (e) Mother smokes in the home when S.S. is present
                despite the fact that the smoke makes it difficult for S.S. to
                breathe.


        31. J.N. was nine years old when the temporary guardianship
        was granted. Mother had never taken J.N. to a dentist. J.N. had
        extensive dental work done while living with the Scroghams.


        32. J.N. expressed his desire that he live with his mother citing
        as a reason that the Scroghams had too many rules. He was
Court of Appeals of Indiana | Memorandum Decision 39A01-1512-GU-2289 | October 14, 2016   Page 15 of 31
        placed back in Mother’s care in mid-November of 2014. As of
        December 12, 2014, Mother was having difficulty parenting J.N.


        33. Kenneth and Teresa Scrogham have been married for twenty
        nine years and have lived in the same home during their entire
        marriage. Teresa works second shift as a human resource
        specialist. She has been consistently employed for more than two
        decades. Kenneth is disabled and serves as a stay at home mom
        for his four grandchildren. Neither of the Scroghams have a
        criminal history, mental health issues, or substance abuse issues.


        34. The Scroghams have been actively involved in S.S.’s life
        since her birth. They have regularly celebrated holidays and
        birthdays with S.S. and have taken her to church. On several
        occasions, S.S. has stayed with them for several weeks due to
        Mother having no food or no electricity. On one occasion, S.S.
        lived with them approximately six months due to Mother having
        no electricity. When S.S. was living with Mother, Mother would
        frequently call Teresa for assistance with disciplining the
        children. Teresa would discipline the children over the
        telephone. [Mother] commented that “these kids are driving me
        crazy”.


        35. S.S. is thriving while living with the Scroghams. She has
        structure and boundaries in the home. She has chores to do and
        enjoys being responsible. Her school attendance has improved
        dramatically and she is making excellent grades. She is more
        stable emotionally and is making and keeping friends much
        easier than she did while residing with Mother. She feels safe
        living with the Scroghams and she is adamant that she wants to
        continue to live with them.


                  DISCUSSION AND CONCLUSIONS OF LAW


                                             *****

Court of Appeals of Indiana | Memorandum Decision 39A01-1512-GU-2289 | October 14, 2016   Page 16 of 31
        38. Before placing a child in the custody of a person other than
        the natural parent, a trial court must be satisfied by clear and
        convincing evidence that the best interests of the child require
        such a placement. Id[.]


        39. The trial court must be convinced that placement with a
        person other than the natural parent represents a substantial and
        significant advantage to the child. The presumption will not be
        overcome merely because a third party could provide the better
        things in life for the child. Id[.]


                                             *****


        41. In the present case, the strong and important presumption
        that S.S.’s interests are best served with placement with Mother
        has been clearly and convincingly overcome by the facts set forth
        above and S.S.’s best interests are substantially and significantly
        served by placement with the Scroghams.


        42. Such facts are more fully discussed as follows:


                (a) Mother lacks the ability to appropriately discipline S.S.
                In the past, she has had to turn to Teresa Scrogham for
                assistance in disciplining the children. Presently, her
                method of discipline is to yell and curse at the children.
                Little improvement has occurred despite the fact Mother
                has been in therapy. This is hardly surprising since
                Mother has a history of angering easily and having
                frequent arguments with others. It is not in S.S.’s best
                interests to be exposed to Mother’s yelling and cursing.


                (b) Mother has placed S.S. in the middle of this
                controversy and has inappropriately attempted to influence
                S.S. Mother forced S.S. to read the guardian ad litem’s

Court of Appeals of Indiana | Memorandum Decision 39A01-1512-GU-2289 | October 14, 2016   Page 17 of 31
                report. While S.S. was reading the report, Mother
                screamed and cried that the report was a lie; accused S.S.
                of lying to the GAL; and stated that she thought S.S. hated
                her. She sat S.S. in a chair and made her agree that she
                wanted to come back and live with her before she could
                get up out of the chair. The above actions evidence
                extremely poor judgment on Mother’s part. Mother either
                does not understand the harmful effects of her behavior on
                S.S. or, if she does understand, does not care.


                (c) Mother has inappropriately disparaged the Scroghams
                in the presence of S.S. S.S. is very attached to the
                Scroghams and does not want or need to hear Mother’s
                negative comments. She has asked Mother to stop making
                such remarks but Mother persists and finds it impossible to
                not talk about what the Scroghams are doing. Mother has
                also been angry, belligerent, and threatening to the
                Scroghams during many of the visitation exchanges, all of
                which occurred in the presence of S.S. Here again,
                Mother has engaged in inappropriate behavior which is
                harmful to S.S. Lastly, it is Mother’s intention that S.S.
                will never see the Scroghams again if S.S. is placed in her
                custody. The Scroghams have played an important role in
                S.S.’s life and S.S. has a strong bond with the Scroghams.
                It would not be in S.S.’s best interest to sever such bond.


                (d) Mother may very well be of Indian heritage. She has,
                however, demonstrated delusional thoughts in connection
                therewith. Despite her statements to the contrary, Mother
                does not have an Indian husband waiting for her in South
                Carolina. Mother has also attributed evil properties to the
                children’s belongings and took steps to throw the
                belongings away to rid her home of evil. The children
                were frightened by Mother’s behavior. The issue here is
                not whether Mother’s Indian heritage and her actions in
                connection therewith are legitimate exercises of religion

Court of Appeals of Indiana | Memorandum Decision 39A01-1512-GU-2289 | October 14, 2016   Page 18 of 31
                but rather what effect the same have on S.S. S.S. and J.N.
                were obviously very frightened by Mother’s excessive
                washing of their feet. Mother maintains that she was
                doing so in order to comfort the children but Mother
                lacked the insight to see that her actions were actually
                upsetting the children rather than calming them. Despite
                the fact that S.S. is afraid of Mother’s Indian rituals,
                Mother started the “Indian” stuff again in early 2015. She
                sees no reason that S.S. would be afraid of her talking
                about her Indian stuff.


                                             *****


        44. The presumption that it is in the best interests of S.S. to be in
        the custody of Mother is further overcome by the fact that S.S. is
        afraid of going back to live with Mother. She does not like the
        screaming and cursing that goes on in Mother’s home and she is
        afraid of Mother’s Indian rituals. She cannot sleep well at
        Mother’s home and she has bad dreams. S.S. is emotional,
        upset, and often cries after her visits with Mother.


        45. The Scroghams have established, by clear and convincing
        evidence, that S.S.’s best interests are substantially and
        significantly served by placement with the Scroghams. The
        Scroghams have been actively involved in S.S.’s life since her
        birth. S.S. has a strong bond with the Scroghams and is thriving
        in their care. She has structure and boundaries in the home. She
        has chores to do and enjoys being responsible. Her school
        attendance has improved dramatically. Her grades have also
        improved. She is more stable emotionally and she is making and
        keeping friends much easier.


Appellant’s Appendix at 13-28.




Court of Appeals of Indiana | Memorandum Decision 39A01-1512-GU-2289 | October 14, 2016   Page 19 of 31
[23]   On November 20, 2015, Mother filed a motion to correct errors, which the

       court denied.


                                                   Discussion

[24]   The issue is whether the trial court abused its discretion in granting the petition

       for guardianship. “All findings and orders of the trial court in guardianship

       proceedings are within the trial court’s discretion.” In re Guardianship of J.K.,

       862 N.E.2d 686, 690 (Ind. Ct. App. 2007) (citing Ind. Code § 29-3-2-4). Thus,

       we will review those findings under an abuse of discretion standard. Id.; see also

       In re Guardianship of B.H., 770 N.E.2d 283, 288 (Ind. 2002) (“Child custody

       determinations fall squarely within the discretion of the trial court and will not

       be disturbed except for an abuse of discretion.”), reh’g denied. In determining

       whether the trial court abused its discretion, we look to the trial court’s findings

       of 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

       Court of Appeals of Indiana | Memorandum Decision 39A01-1512-GU-2289 | October 14, 2016   Page 20 of 31
       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); see also B.H., 770 N.E.2d at 288.


[25]   Ind. Code § 29-3-5-1 provides that “[a]ny person may file a petition for the

       appointment of a person to serve as guardian for [a] . . . minor under this

       chapter or to have a protective order issued under IC 29-3-4.” Ind. Code § 29-3-

       5-3 provides:


               (a) Except under subsection (c), if it is alleged and the court finds
               that:


                       (1) the individual for whom the guardian is sought is . . . a
                       minor; and


                       (2) the appointment of a guardian is necessary as a means
                       of providing care and supervision of the physical person or
                       property of the . . . minor;


               the court shall appoint a guardian under this chapter.


                                                    *****


               (c) If the court finds that it is not in the best interests of the . . .
               minor to appoint a guardian, the court may:


                       (1) treat the petition as one for a protective order and
                       proceed accordingly;


                       (2) enter any other appropriate order; or


       Court of Appeals of Indiana | Memorandum Decision 39A01-1512-GU-2289 | October 14, 2016   Page 21 of 31
                       (3) dismiss the proceedings.


[26]   “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.’” In re K.I., 903 N.E.2d 453, 460 (Ind. 2009) (quoting J.K.,

       862 N.E.2d at 692). We have previously recognized that a reason for placing

       the burden on the third party is to encourage parents who are experiencing

       difficulties raising children to take advantage of an available safety net such as a

       grandparent who is willing to accept temporary custody of a child. J.K., 862

       N.E.2d at 692 n.2 (citing In re Guardianship of L.L., 745 N.E.2d 222, 233 (Ind.

       Ct. App. 2001), trans. denied).


[27]   The Indiana Supreme Court has previously held:


               [B]efore placing a child in the custody of a person other than the
               natural parent, a trial court must be satisfied by clear and
               convincing evidence that the best interests of the child require
               such a placement. The trial court must be convinced that
               placement with a person other than the natural parent represents
               a substantial and significant advantage to the child. The
               presumption will not be overcome merely because “a third party
               could provide the better things in life for the child.” In a
               proceeding to determine whether to place a child with a person
               other than the natural parent, evidence establishing the natural
               parent’s unfitness or acquiescence, or demonstrating that a strong
               emotional bond has formed between the child and the third
               person, would of course be important, but the trial court is not
               limited to these criteria. The issue is not merely the “fault” of the
               natural parent. Rather, it is whether the important and strong
               presumption that a child’s interests are best served by placement
       Court of Appeals of Indiana | Memorandum Decision 39A01-1512-GU-2289 | October 14, 2016   Page 22 of 31
               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.


       K.I., 903 N.E.2d at 458 (quoting B.H., 770 N.E.2d at 287 (citations omitted)).


[28]   Mother argues that: (A) her due process rights were violated; and (B) there was

       insufficient evidence to grant the petition and the court failed to find that the

       guardianship was necessary.


       A. Due Process


[29]   Mother argues that the United States Supreme Court’s decision in Troxel v.

       Granville, 530 U.S. 57, 120 S. Ct. 2054 (2000), and the Fourteenth Amendment

       are incompatible with the Indiana line of cases allowing the presumption that a

       parent is acting in the best interest of the child to be overcome solely based on

       the child’s best interests. She also argues that Indiana’s reliance on the

       significant and substantial best interests of the child in lieu of a showing of

       unfitness, abandonment, or long acquiescence violates a parent’s Due Process

       rights under the Fourteenth Amendment to the United States Constitution.

       The Scroghams argue that Indiana’s approach to the standard necessary to

       implement a guardianship is above and beyond that necessary to satisfy due

       process.


[30]   In Troxel, Tommie Granville, the mother of two children, opposed a petition for

       visitation filed by the paternal grandparents of the children. 530 U.S. at 60, 120

       S. Ct. at 2057. The Court addressed a Washington statute that provided: “Any

       Court of Appeals of Indiana | Memorandum Decision 39A01-1512-GU-2289 | October 14, 2016   Page 23 of 31
       person may petition the court for visitation rights at any time including, but not

       limited to, custody proceedings. The court may order visitation rights for any

       person when visitation may serve the best interest of the child whether or not

       there has been any change of circumstances.”6 Id. at 61, 120 S. Ct. at 2057-

       2058. The Court was asked to decide whether the statute as applied to a mother

       and her family violated the Federal Constitution. Id. at 65, 120 S. Ct. at 2059.


[31]   The plurality noted that the Fourteenth Amendment provides that no State

       shall deprive any person of life, liberty, or property, without due process of law,

       that the Clause guarantees more than fair process, and that the Clause also

       includes a substantive component that provides heightened protection against

       government interference with certain fundamental rights and liberty interests.

       Id. at 65, 120 S. Ct. at 2059-2060.


[32]   The plurality held that the Washington nonparental visitation statute was

       “breathtakingly broad,” that the statute’s language “effectively permits any

       third party seeking visitation to subject any decision by a parent concerning

       visitation of the parent’s children to state-court review,” and that “[o]nce the

       visitation petition has been filed in court and the matter is placed before a judge,

       a parent’s decision that visitation would not be in the child’s best interest is

       accorded no deference.” Id. at 67, 120 S. Ct. at 2061. The plurality concluded

       that the Washington Superior Court “failed to accord the determination of



       6
        Justice O’Connor announced the judgment of the Court and delivered the opinion, in which Chief Justice
       Rehnquist, Justice Ginsburg, and Justice Breyer joined. 530 U.S. at 60, 120 S. Ct. at 2057.

       Court of Appeals of Indiana | Memorandum Decision 39A01-1512-GU-2289 | October 14, 2016     Page 24 of 31
       Granville, a fit custodial parent, any material weight” and that the statute, as

       applied, was unconstitutional. Id. at 72, 120 S. Ct. at 2063.


[33]   Here, we cannot say that the Indiana statute is “breathtakingly broad.” The

       “the best interest standard is applicable in guardianship cases involving custody

       of a minor.” E.N. ex rel. Nesbitt v. Rising Sun-Ohio Cnty. Cmty. Sch. Corp., 720

       N.E.2d 447, 451 (Ind. Ct. App. 1999), reh’g denied, trans. denied; see also Ind.

       Code § 29-3-5-3(c) (“If the court finds that it is not in the best interests of the . . .

       minor to appoint a guardian, the court may: (1) treat the petition as one for a

       protective order and proceed accordingly; (2) enter any other appropriate order;

       or (3) dismiss the proceedings.”). Further, Ind. Code § 29-3-5-3 provides that a

       trial court may appoint a guardian to a minor if “the appointment of a guardian

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

       or property of the . . . minor.” This court has previously observed that the term

       “necessary” is not defined by the guardianship statute, and that two definitions

       of the word are “1. Absolutely essential . . . . 2. Needed to achieve a certain

       result or effect . . . .” E.N., 720 N.E.2d at 452 (quoting THE AMERICAN

       HERITAGE COLLEGE DICTIONARY 911 (3rd ed. 1993)). Further, unlike the trial

       court in Troxel, the trial court here observed that Indiana recognizes “the

       important and strong presumption that a child’s best interests are ordinarily

       served by placement in the custody of the natural parent,” that the burden of

       overcoming the presumption is on the third party seeking custody, and that the

       presumption will not be overcome merely because a third party could provide




       Court of Appeals of Indiana | Memorandum Decision 39A01-1512-GU-2289 | October 14, 2016   Page 25 of 31
       the better things in life for the child. Appellant’s Appendix at 23. We cannot

       say that reversal is warranted based upon Troxel.


[34]   To the extent Mother argues that Indiana’s reliance on the significant and

       substantial best interests of the child in lieu of a showing of unfitness,

       abandonment, or long acquiescence violates a parent’s Due Process rights

       under the Fourteenth Amendment to the United States Constitution, we

       observe that the Indiana Supreme Court discussed these factors in B.H. In that

       case, the Court observed that this Court restated the considerations expressed in

       Gilmore v. Kitson, 165 Ind. 402, 74 N.E. 1083 (1905), and had stated that to

       rebut the presumption that it will be in the best interests of the child to be placed

       in the custody of the natural parent “it must be shown by the attacking party

       that there is, (a) unfitness, (b) long acquiescence, or (c) voluntary

       relinquishment such that the affections of the child and third party have become

       so interwoven that to sever them would seriously mar and endanger the future

       happiness of the child.” 770 N.E.2d at 286 (quoting Hendrickson v. Binkley, 161

       Ind. App. 388, 393-394, 316 N.E.2d 376, 380 (1974), cert. denied, 423 U.S. 868

       (1975)). The Court went on to hold, that “[i]n a proceeding to determine

       whether to place a child with a person other than the natural parent, evidence

       establishing the natural parent’s unfitness or acquiescence, or demonstrating

       that a strong emotional bond has formed between the child and the third

       person, would of course be important, but the trial court is not limited to these

       criteria.” Id. at 287. In other words, the Court held that “the trial court is not

       limited to the three Hendrickson factors.” Id. at 288. It further held that the trial


       Court of Appeals of Indiana | Memorandum Decision 39A01-1512-GU-2289 | October 14, 2016   Page 26 of 31
       court’s “detailed findings provide ample support for the judgment of the trial

       court in granting the stepfather’s guardianship petition,” and that “the trial

       court was clearly convinced that placement with the stepfather represents a

       substantial and significant advantage to the children.” Id.


[35]   The trial court in this case noted the “important and strong presumption that a

       child’s best interests are ordinarily served by placement in the custody of the

       natural parent,” that “[t]he burden of overcoming the presumption is on the

       third party seeking custody,” and that “[b]efore placing a child in the custody of

       a person other than the natural parent, a trial court must be satisfied by clear

       and convincing evidence that the best interests of the child require such a

       placement.” Appellant’s Appendix at 23. The court also noted it “must be

       convinced that placement with a person other than the natural parent represents

       a substantial and significant advantage to the child,” and that the “presumption

       will not be overcome merely because a third party could provide the better

       things in life for the child.” Id. at 23-24. Under the circumstances, we cannot

       say that Mother was deprived of due process.


       B. Sufficient Evidence


[36]   Mother argues that there was insufficient evidence to grant the petition and

       asserts that the circumstances surrounding the temporary guardianship have

       been remedied. She points out that J.N. was returned by the Scroghams on

       September 25, 2014, and has remained in her care without incident. She

       contends that the court’s determination is unconstitutional to the extent it based


       Court of Appeals of Indiana | Memorandum Decision 39A01-1512-GU-2289 | October 14, 2016   Page 27 of 31
       its decision on her Native American and Christian beliefs, and that there is no

       law against adults smoking in the presence of their children in Indiana. She

       asserts that, contrary to Paragraph 42 of the court’s order, she did know that

       J.N. needed to see a dentist and had an appointment to take him to the dentist

       in April 2014 and that there is no evidence to support Finding 32 that she was

       having difficulty parenting J.N. as of December 12, 2014. Mother also argues

       that the trial court erroneously awarded the Scroghams guardianship without a

       showing or finding that the guardianship was necessary as required by statute.


[37]   The Scroghams assert that the evidence supports the findings and the findings

       support the conclusion. The Scroghams also argue that a trial court’s failure to

       include a specific finding on necessity will not be grounds for reversal if it is

       implicit in the findings and the findings support the conclusion that the

       guardianship is necessary.


[38]   As for Mother’s argument that the court based its decision on her religious

       beliefs, we observe the trial court’s statement that Mother “demonstrated

       delusional thoughts in connection” with her heritage and that “[t]he issue here

       is not whether Mother’s Indian heritage and her actions in connection therewith

       are legitimate exercises of religion but rather what effect the same have on S.S.”

       Appellant’s Appendix at 26-27. We cannot say that the trial court based its

       decision on Mother’s religious beliefs.


[39]   With respect to her smoking, the court found that “Mother smokes in the home

       when S.S. is present despite the fact that the smoke makes it difficult for S.S. to


       Court of Appeals of Indiana | Memorandum Decision 39A01-1512-GU-2289 | October 14, 2016   Page 28 of 31
       breathe.” Id. at 21. GAL Berry’s report filed on June 19, 2015, states that S.S.

       said Mother “is still smoking inside the apartment and it hurts her to breathe

       smoke.” Id. at 43. Further, GAL Berry testified that S.S. “would get a

       headache from the smoke in the house . . . .” Transcript at 322. We cannot say

       that this finding is clearly erroneous.


[40]   As for the court’s statement that J.N. did not go to a dentist until the Scroghams

       took him during their temporary guardianship and that Mother knew or should

       have known that he was in need of dental work, we observe that Teresa testified

       that she noticed J.N. had atrociously bad breath, that she looked in J.N.’s

       mouth and saw a “very rotten tooth,” that she asked him if he had ever been to

       a dentist, that J.N. said “No,” and that J.N.’s teeth were “in such bad shape

       because of having never been to a dentist in his life . . . .” Id. at 143, 145. GAL

       Berry testified that she noticed some discrepancies between what Mother had

       told her and Mother’s testimony. When asked about the discrepancies, GAL

       Berry stated:


               One of them was when I asked her, ‘Have the kids ever been to a
               dentist?’ She said, ‘No,’ but she had had an appointment for J.N.
               but it was not until the spring and that was like four or five
               months after his surgery that he had. That was the first time that
               she had uh---had a dentist appointment for him.


       Id. at 321. We cannot say that the court’s finding is clearly erroneous.


[41]   Mother does not specifically argue that the evidence fails to support a number

       of the court’s findings including that she stated that she was “overwhelmed”


       Court of Appeals of Indiana | Memorandum Decision 39A01-1512-GU-2289 | October 14, 2016   Page 29 of 31
       with life in general in April 2014, she stopped taking prescriptions without a

       doctor’s approval after being released from Clark County Behavioral Health,

       she suffers from Bipolar II disorder, cannabis use disorder, panic disorder,

       PTSD, and agoraphobia, that S.S. missed 22 days and J.N. missed eighteen

       days of school when they were living with Mother during the 2013-2014 school

       year because Mother did not wake them in time to catch the school bus, and

       that S.S. was scared to be with her, felt unsafe with her, and did not like the

       screaming and cursing that occurs in her house. Additionally, Mother does not

       contend the evidence fails to support the finding that her method of discipline is

       to yell and curse at the children, that S.S. is emotional, upset, and cries

       sometimes after her visits with her, that S.S. missed only two to three days of

       school during the 2014-2015 school year when residing with the Scroghams,

       and that S.S. is thriving and feels safe with them.7


[42]   We note that some of these findings relate to circumstances present at the time

       of the hearing. GAL Berry filed a report on June 19, 2015, and indicated she

       performed a home visit with S.S. who told her that Mother made her go to a

       neighbor’s house and buy cigarettes for her with S.S.’s money, Mother was

       “still smoking” inside the apartment, Mother constantly screams about the

       Scroghams, the dynamics of Mother’s home continues to be unchanged, and




       7
        Mother asserts that it is bad public policy to base an award primarily on her mental health issues. We
       cannot say that the trial court granted the petition for guardianship based only upon Mother’s mental illness.



       Court of Appeals of Indiana | Memorandum Decision 39A01-1512-GU-2289 | October 14, 2016          Page 30 of 31
       that S.S. is still afraid to go back and live with Mother. Appellant’s Appendix

       at 43.


[43]   To the extent Mother argues that the trial court erroneously awarded the

       Scroghams guardianship without a showing it was necessary as required by

       statute, we have previously held that “a trial court’s failure to include a specific

       finding on necessity will not be grounds for reversal if it is implicit in the trial

       court’s evidentiary findings.” Hinkley v. Chapman, 817 N.E.2d 1288, 1291 (Ind.

       Ct. App. 2004) (citing E.N., 720 N.E.2d at 452). As discussed, the trial court

       entered a nineteen-page order with detailed findings. We conclude that implicit

       in these findings was the finding that the guardianship was necessary. See id.

       (“Implicit in these findings is the trial court’s finding that the appointment of

       the Chapmans as guardians was necessary, i.e., absolutely essential or needed

       to rectify L.B.’s educational deficiencies. Therefore, we do not reverse the trial

       court’s determination for the absence of a specific finding.”).8


[44]   We affirm the decision of the trial court.


       Robb, J., and Mathias, J., concur.




       8
         Mother argues that this case is similar to In re Guardianship of L.L., in which we reversed and remanded with
       instructions to terminate a guardianship. 745 N.E.2d at 233. We observed that “there is absolutely no
       indication that [the mother] is presently an unfit parent,” that it was undisputed the mother had been
       successful in raising another child during the previous six years, that the custody evaluator’s report spoke of
       the mother’s parenting capabilities only in positive terms, and that the evaluator expressly testified that she
       believed the mother was capable of taking care of both children. 745 N.E.2d at 231. The circumstances in
       L.L. are not present here.



       Court of Appeals of Indiana | Memorandum Decision 39A01-1512-GU-2289 | October 14, 2016          Page 31 of 31
