                                                              Nov 26 2014, 9:07 am
FOR PUBLICATION


ATTORNEY FOR APPELLANT:                         ATTORNEY FOR APPELLEES:

DANIEL J. MOORE                                 KATHLEEN M. SWEENEY
Laszynski & Moore                               Sweeney Hayes, LLC
Lafayette, Indiana                              Indianapolis, Indiana




                               IN THE
                     COURT OF APPEALS OF INDIANA

IN RE THE GUARDIANSHIP OF                       )
C.R. AND A.R.,                                  )
                                                )
                                                )
E.R.,                                           )
                                                )
        Appellant,                              )       No. 79A05-1404-GU-176
                                                )
               vs.                              )
                                                )
M.S. AND D.S.,                                  )
                                                )
        Appellees.                              )
                                                )

                     APPEAL FROM THE TIPPECANOE CIRCUIT COURT
                       The Honorable Benjamin A. Diener, Special Judge
                               Cause No. 79C01-1205-GU-45



                                    November 26, 2014


                              OPINION - FOR PUBLICATION


BRADFORD, Judge
                                           CASE SUMMARY

        Appellant E.R. is the maternal grandfather and adoptive father of minor children C.R.

and A.R (collectively “the Children”). Appellees are the paternal grandparents of the

Children (the “Grandparents”). The trial court awarded Grandparents visitation rights and,

upon Grandparents’ motion, ordered that a visitation evaluation be conducted. E.R. appeals

the trial court’s order on the visitation evaluation, arguing that the trial court did not have the

authority to order the evaluation. E.R. does not contest the trial court’s decision regarding

the parameters of the visitation granted to Grandparents. Finding that the trial court did not

have the authority to order a visitation evaluation, we reverse.

                            FACTS AND PROCEDURAL HISTORY

        On August 5, 2013, this court issued a memorandum decision regarding a prior appeal

in this case. In re Guardianship of C.S., Cause No. 79A02–1210–GU–863 (Ind. Ct. App.

2013). As outlined in that decision, the relevant background of this case is as follows:

               The facts are that the biological parents of C.S. and A.S.[1] divorced in
        May 2009. At the time, they had two children: four-year-old C.S. and two-
        year-old A.S. Approximately one month later, Biological Father went to
        Biological Mother’s house and attacked her with a hammer, killing her. C.S.
        witnessed at least a portion of the attack. Shortly after Biological Mother’s
        death, the children were the focus of a CHINS proceeding that culminated in
        the children being placed in Adoptive Father’s custody. In conjunction with
        that proceeding, the court determined that the Paternal Grandparents would
        have visitation with the children one day each week, plus every other weekend.
               In January 2010, Adoptive Father sought guardianship of C.S. and A.S.
        His request was granted. At some point, the Paternal Grandparents sought to
        have Adoptive Father removed as guardian, and further sought guardianship of
        the children themselves. Meanwhile, Adoptive Father observed that the

        1
          Although it is not mentioned in the record, we presume that C.R. and A.R. (as they will be referred to
in this opinion) have begun using their mother’s maiden name since the time of this court’s decision in In re
C.S., in which they were referred to as C.S. and A.S.

                                                       2
children began to exhibit behavioral problems after returning from visits with
the Paternal Grandparents. These problems included nightmares, night terrors,
and C.S. waking up screaming in the middle of the night. Adoptive Father
petitioned the court to reduce the amount of the Paternal Grandparents’
visitation to one visit per month. Following a hearing, the trial court denied
the request and ordered that the existing visitation order remain in effect.
        Gloria Hood, a long-time therapist who worked at the Indiana Center
for Children and Families, had been appointed by the court to work
therapeutically with the children shortly after their mother’s murder. During
her work with the children, Hood consulted on a regular basis with Dr. Ann
Annamis, a psychiatrist practicing with North Meridian Psychiatric Associates.
Hood and Annamis discussed the case “frequently”. Transcript at 16. During
the course of working with the children, utilizing especially the therapeutic
technique of play therapy, Hood eventually diagnosed C.S. as suffering from
post-traumatic stress disorder (PTSD). In December 2010, Hood was asked to
engage the services of another health-care professional, in this case psychiatrist
Dr. David Crane, to “make sure that my assessment of [C.S.] in particular was
on target and that I was not missing anything psychiatrically that I should be
aware of.” Id. at 19. Dr. Crane reviewed materials that Hood sent him in
relation to her therapy with the children and conducted several therapy sessions
with C.S. He formed the opinion that she was doing “a very adequate job” and
thus, although he continued to counsel separately with C.S., Dr. Crane adopted
a relatively passive therapeutic role with the child. Id. at 75.
        As therapy progressed, Hood noted that C.S. “experience[ed] post-
traumatic stress in some relationship to the visits in the [Paternal Grandparent]
home.” Id. at 35. C.S. shared with Hood on a number of occasions that
“[Paternal Grandparents] want [the children] to come live with them.” Id. at
36. A.S. also shared with Hood that the Paternal Grandparents wanted her to
come live with them, but that she preferred to live with Adoptive Father.
Ultimately, both Adoptive Father and the Paternal Grandparents sought
separately to adopt the children. The court granted Adoptive Father’s petition
and he adopted them. Sometime around March 2012, after Adoptive Father
had adopted the children, Hood became concerned that visitation with the
Paternal Grandparents might involve “some other situation that is continuing
to keep the issue of his father having killed his mother and his struggle about
what that means in his life active for [C.S.].” Id. at 37. As a result, Hood
opined that the visitation arrangement with the Paternal Grandparents should
be modified, at least for a time. Specifically, she recommended that for a
period of at least six months, the children should visit with the Paternal
Grandparents an hour or two every week or every other week and that the
visits should be supervised. Dr. Crane believed that Hood’s recommendation
“should be given a lot of weight”. Id. at 80.


                                        3
               In light of Hood’s recommendation, on June 22, 2012, Adoptive Father
        filed a Petition For Extended Hearing For Modifying And Supervising
        Grandparent Visitation. In it, Adoptive Father stated:

                 It is now in the best interest of [C.S.] and [A.S.] that the paternal
                 grandparent visitation continue pursuant to Gloria Hood’s
                 recommendation, wherein for a period of time the grandparent
                 visitation will be supervised by an agency for at least six (6)
                 months, that the contact of [Paternal Grandparents] with [C.S.]
                 and [A.S.] be limited to that agency setting for at least six (6)
                 months, and thereafter a determination be made as to what is the
                 appropriate continued visitation between [C.S.] and [A.S.] and
                 their paternal grandparents.

        Id. at 32. Following a hearing, the trial court denied Adoptive Father’s motion,
        entering extensive findings of fact and conclusions of law in support of its
        ruling. This is the ruling that Adoptive Father challenges. Further facts will
        be supplied where relevant.

In re C.S., slip op. at 1-2 (first set of brackets supplied; all others in original). On appeal, we

reversed the trial court’s ruling denying E.R.’s motion and remanded with the following

instructions:

        It will be the trial court’s task upon remand to determine how many times per
        week or month the Paternal Grandparents should visit with the grandchildren
        and how long each visit should last. As indicated previously, whatever the
        frequency and duration, the visitation must be supervised, and this schedule
        will last for six months, after which Hood will evaluate the children’s
        therapeutic progress and fashion her recommendation as to the future course of
        visitation, accordingly.

In re C.S., slip op at 9. On January 16, 2014, Paternal Grandparents filed a petition to resume

visitation and requesting a parenting time evaluation.2 E.R. filed a response and a motion in


        2
          Grandparents’ expert witness, Dr. Jeffrey Vanderwater-Piercy, testified that the requested evaluation
would consist of clinical psychologists conducting several interviews with the parties involved, reviewing
records, and consulting with other professionals, all of which would cost $6,000 (if performed by his office as
Grandparents requested). Dr. Vanderwater-Piercy estimated that each interview would take multiple hours,
depending on the depth of information needed from the interviewee.

                                                      4
limine which requested that the trial court not hear testimony from Grandparents’ expert

witnesses, who were called to testify on the potential benefits of a visitation evaluation. At a

hearing concerning the petition, the trial court denied E.R.’s motion in limine and

subsequently issued an order which reads, in pertinent part, as follows:

       6) Grandparents shall be entitled to exercise supervised visitation up to twelve
       (12) hours per month.
                                             ****
       12) Father must, at a minimum, allow grandparent visitation pursuant to
       paragraphs six (6) through nine (9).
                                             ****
       16) Grandparents may subject the children to and pay for what has been
       referenced as a visitation study or a forensic analysis (“requested study”).
       17) Grandparents shall be responsible for costs associated with the requested
       study (“requested study costs”).
                                             ****
       22) [E.R.] is advised that he is not ordered to participate in the requested
       study, but that a decision to not participate in the requested study may result in
       the neutral third party making findings regarding [E.R.] that are not favorable
       to [E.R.].
       23) The requested study’s benefit to the children is speculative; accordingly
       the costs of the requested study shall be paid by the Grandparents and shall not
       be covered by the children’s trust.

Appellants’ App. 42-43 (brackets supplied).

                              DISCUSSION AND DECISION

       On appeal, E.R. contends that the Grandparents did not have any basis to request a

visitation evaluation, and the trial court did not have the authority to order such an

evaluation. In the alternative, E.R. argues that the trial court abused its discretion by ordering

the study despite evidence that it would not be in the Children’s best interest. E.R. does not

contest the trial court’s determination regarding the terms of Grandparents’ visitation.

                                     I.   Standard of Review


                                                5
       Determining the extent of the trial court’s authority in this case, specifically whether it

has the authority to order a visitation evaluation, obliges this court to render a statutory

interpretation.

       “Statutory interpretation is a question of law reserved for the court and is
       reviewed de novo. De novo review allows us to decide an issue without
       affording any deference to the trial court’s decision…. Our goal in statutory
       construction is to determine, give effect to, and implement the intent of the
       legislature.”

In re N.S., 908 N.E.2d 1176, 1180 (Ind. Ct. App. 2009) (quoting Shaffer v. State, 795 N.E.2d

1072, 1076 (Ind. Ct. App. 2003).

             II. Whether the Trial Court Had Authority to Order a Forensic
                    Visitation Evaluation of the Minor Children

       Indiana Code section 31-17-2-12 provides the statutory basis for requesting and

ordering a parenting time evaluation: “In custody proceedings after evidence is submitted

upon the petition, if a parent or the child’s custodian so requests, the court may order an

investigation and report concerning custodial arrangements for the child.” (emphasis added).

A “[c]hild custody proceeding” is defined as “a proceeding in which legal custody, physical

custody, or visitation with respect to a child is an issue.” Ind. Code section 31-21-2-5. For

purposes of juvenile law, a “custodian” is “a person with whom a child resides.” Ind. Code

section 31-9-2-31.

       Under the express language of Indiana Code 31-17-2-12, Grandparents are not eligible

to request a custody evaluation as they are neither the parents of nor the custodians for C.R.

and A.R. Additionally, under the plain language of the statute, the trial court does not have

the authority to order such an evaluation, in a visitation proceeding, absent a request to do so


                                                6
from a parent or custodian. Grandparents provide no alternative authority under which they

would be entitled to request a visitation evaluation, nor is this court aware of any such

authority. When asked by the trial court whether they were aware of any authority for a

visitation examination, Grandparents responded, “I can’t find any statutory authority for that,

but many items in family law don’t have specific statutory authority, but nonetheless, the

Court can craft methods to determine the child’s best interest in what the Court wants to do.”

Tr. p. 15. However, Grandparents did not provide any examples at the petition hearing or in

their appellate brief which illustrate other ways in which a trial court is allowed to “craft

methods” to determine a child’s best interest absent authority. In fact, The Indiana

Grandparent Visitation Act, Indiana Code chapter 31-17-5, expressly provides additional

means by which the court may ascertain the best interests of the child, such as interviewing

the child in chambers. Ind. Code section 31-17-5-2(c). Noticeably absent from this list is

any type of visitation evaluation or investigation.

       After the Grandparents conceded that they knew of no authority entitling them to a

visitation evaluation, the trial court expressed its reluctance to grant such a large degree of

rights to grandparents.

       I don’t think the law, at least as currently written, provides grandparents that
       extent of rights, and so that is the reservation this Court would have is if we
       are putting the grandparents on equal footing as the father and allowing for
       parenting time evaluations and things of that nature, what’s the end game?
       Because we are not going to have a modification of custody hearing. The
       grandparents that are exercising visitation are never going to come close to the
       legal relationship with the child that they’re potentially seeking. So what’s the
       end game?




                                              7
Tr. p. 16. Despite the trial court’s reservations, it denied E.R.’s motion in limine and heard

testimony from experts regarding what the proposed evaluations would entail and whether

the evaluations would help the court determine the best interests of the Children. After E.R.

voiced his disagreement, the trial court responded, “[a]lthough I think your motion is

completely accurate with the status of the law. I think we are probably exceeding the scope

of what grandparent visitation is and can be, but we will run that risk and then we will make

findings and enter orders later.” Tr. p. 21.

       As the trial court acknowledged, the law currently provides no authority for

grandparents to request visitation evaluations and this court finds no reason to read Indiana

Code section 31-17-2-12 to provide as such. “The cardinal rule of statutory construction is

that if a statute is unambiguous, then we need not and cannot interpret it; rather, we must

apply its plain and clear meaning.” Vanderburgh Cnty. Election Bd. v. Vanderburgh Cnty.

Dem. Cent. Comm., 833 N.E.2d 508, 510 (Ind. Ct. App. 2005). The Indiana Legislature

could have added grandparents with visitation rights to the list of individuals eligible to

request a parenting time study under Indiana Code section 31-17-2-12; however, it chose not

to. Although we cannot know the intent of the legislature, we do not believe this exclusion

was unintentional. In other Indiana family law statutes, the legislature has limited the power

of the trial court when determining grandparents’ visitation rights, as opposed to rights of a

parent or custodian. Indiana Code section 31-17-6-1, the authorizing statute for court

appointment of Guardians ad litem and Court Appointed Special Advocates (“CASA”), reads

as follows: “A court, in a proceeding under [Indiana Code sections] 31-17-2, [] 31-17-4, this



                                               8
chapter, [] 31-17-7, or [] 31-28-5, may appoint a guardian ad litem, a [CASA], or both, for a

child at any time.” The Grandparent Visitation Act, Indiana Code Chapter 31-17-5, was not

included, presumably because the legislature did not think it appropriate for courts to have

such a potentially burdensome appointment power in cases of grandparent visitation. The

Grandparent Visitation Act itself makes no mention of a grandparent’s ability to request or

compel a visitation evaluation, or any other evaluation for that matter. Furthermore, the

Grandparent Visitation Act has been subject to strict interpretation. “The Grandparent

Visitation [Act] was enacted in derogation of the common law, creating rights which had not

previously existed. Where a statute creates rights in derogation of the common law, the

statute must be strictly construed.” In re Visitation of J.D.G., 756 N.E.2d 509, 512 (Ind. Ct.

App. 2001).

       Presumably, the legislature does not want grandparent visitation issues to have the

potential to escalate into something akin to full blown custody disputes or subject children to

psychological evaluations against the wishes of the parent or guardian. To that point, this

court has staunchly limited the visitation rights of grandparents, especially when those rights

are in conflict with the wishes of a fit parent. See generally In re Visitation of C.L.H., 908

N.E.2d 320, 329 (Ind. Ct. App. 2009) (courts must give special weight to a fit parent’s

decision to deny or limit grandparent visitation and grandparents seeking visitation bear the

burden of rebutting the presumption that a fit parent’s decision to deny visitation was made in

the child’s best interest); In re Visitation of C.S.N., 14 N.E.3d 753 (Ind. Ct. App. 2014)

(“because grandparents do not have the legal rights or obligations of parents, they do not



                                              9
possess a constitutional liberty interest in visitation with their grandchildren.”). It is not this

court’s place to provide grandparents with a newfound right to request psychological

evaluations for their grandchildren against the wishes of the parents. Should the legislature

wish to provide grandparents that power, it can do so at any time.

       Accordingly, we find that Grandparents did not have standing to petition the trial court

for a parenting time evaluation and that the trial court did not have the authority to order

such an evaluation sua sponte. Because there was no authority to order the evaluation, we

need not address whether the evaluation was in the best interest of the Children. We reverse

the portions of the trial court’s March 20, 2014 order concerning the visitation study

(Sections 16 through 23). The provisions of the order concerning Grandparents visitation

time with the Children are unaffected by this decision.

       The judgment of the trial court is reversed.

BARNES, J., and BROWN, J., concur.




                                                10
