MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                       FILED
this Memorandum Decision shall not be                                    Oct 26 2017, 9:08 am
regarded as precedent or cited before any
                                                                             CLERK
court except for the purpose of establishing                             Indiana Supreme Court
                                                                            Court of Appeals
the defense of res judicata, collateral                                       and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEES
Nancy A. McCaslin                                        Laura M. Longstreet
McCaslin & McCaslin                                      Longstreet Law, LLC
Elkhart, Indiana                                         South Bend, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

In Re the Matter of                                      October 26, 2017

Patricia Rumfelt,                                        Court of Appeals Case No.
                                                         No. 20A03-1703-MI-536
Appellant-Petitioner,
                                                         Appeal from the Elkhart Superior
        v.                                               Court
                                                         The Honorable David C.
Alicia Hollars and Harry Arndt,                          Bonfiglio, Judge
                                                         Trial Court Cause No.
Appellees-Respondents.
                                                         20D06-1510-MI-309



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision No. 20A03-1703-MI-536 |October 26, 2017        Page 1 of 22
[1]   Patricia Rumfelt appeals the trial court’s denial of her petition for grandparent

      visitation. Rumfelt raises one issue which we revise and restate as whether the

      trial court abused its discretion in denying her request for grandparent

      visitation. A.B. (“Mother”) requests attorney fees. We affirm and deny

      Mother’s request for attorney fees.


                                      Facts and Procedural History

[2]   On October 22, 2015, Rumfelt filed a petition for grandparent visitation stating

      that she is the paternal grandmother of A.A. (“Child”) and that Mother is the

      natural and custodial mother of Child. Rumfelt further alleged that Child was

      born out of wedlock and her father’s paternity has been established, that she

      had a meaningful relationship with Child but that Mother has prohibited further

      contact, and that she believes it is in the best interest of Child to have a

      relationship with her and with father’s side of the family. Following a hearing,

      the court appointed a guardian ad litem (the “GAL”). On August 1, 2016,

      Mother filed a motion requesting the court to exclude evidence related to

      Child’s relationship with her paternal great-aunt (“Great-Aunt”), and the

      following day the court entered an order stating that it would determine

      admissibility of evidence at trial.


[3]   On March 8, 2016, the GAL filed a report with the court stating that Child was

      ten years old, that Child’s father has had no contact with Child for eight years,

      and that despite this Child has been a guest in the home of Great-Aunt. The

      GAL’s report provides that “[t]he petition filed under Patricia Rumfelt’s name


      Court of Appeals of Indiana | Memorandum Decision No. 20A03-1703-MI-536 |October 26, 2017   Page 2 of 22
      was actually initiated by” Great-Aunt; that, while Rumfelt would have time

      with Child, Child would mainly be with Great-Aunt and Child’s paternal great-

      grandmother (“Paternal Great-Grandmother”) who reside in the same home;

      and that Child did not know Rumfelt was her grandmother until recently.

      Appellant’s Appendix Volume 2 at 18. The report provides that Mother made a

      decision to take Child to a specialist in Fort Wayne for treatment; Child was

      very ill and needed blood transfusions and eventually required surgery at Riley

      hospital; and Mother stated Great-Aunt was upset with her for deciding to take

      Child to Fort Wayne and showed up at Mother’s home to tell her she thought

      Mother was being ridiculous by taking Child to Fort Wayne. The report further

      provides that early one morning in September 2015 Mother received a call from

      a staff person at the South Bend office wanting to talk further about a

      conversation she and Mother had engaged in earlier that morning; Mother

      informed the staff that she had not talked to anyone in their office but the staff

      insisted they had talked to her; finally it was determined that Great-Aunt had

      contacted the doctor’s office and either told them that she was Mother or

      allowed them to believe she was Mother; and in any event Great-Aunt

      maintains that she was the one who had Child’s medical records transferred to

      the Fort Wayne doctor.


[4]   The GAL’s report states that, around the same time, Child received a text

      message from Great-Aunt stating that Mother was not taking good care of her

      and Child should live with Great-Aunt, and at this point Mother decided that

      Great-Aunt had overstepped her boundaries on more than one occasion and


      Court of Appeals of Indiana | Memorandum Decision No. 20A03-1703-MI-536 |October 26, 2017   Page 3 of 22
      told that Child was too sick to come to her home for weekend visits because of

      the needed blood transfusions. The report also states that Mother, concerned

      about Great-Aunt’s interference, instructed hospital staff that the only allowed

      visitors were Mother, her husband, and Child’s maternal grandparents, that

      soon after this Great-Aunt told Child that she was going to take Mother to court

      so she could be with Child, and at that point Mother ended all contact. The

      report states that Child had surgery, Child is well into recovery and doing well

      physically, Child expresses that she does not want to see Great-Aunt because

      she is upset that Great-Aunt “took mom to Court,” and “[f]rom [Child’s]

      perspective [Great-Aunt] got [Mother] in trouble.” Id. at 19.


[5]   The GAL’s report further states in her report that Mother has been married to

      her husband for seven years and they have two other children, in her interview

      with Mother she found Mother to be a responsible and sensible parent, Mother

      sought out the best medical treatment for Child and followed the doctor’s

      advice regarding care and treatment, and that she had no reason to believe that

      Mother was anything less than attentive and responsive when it came to Child’s

      medical needs. The report states that Great-Aunt did overstep when she

      contacted Child’s doctor and must have in some way indicated she was Child’s

      parent or the staff would not have spoken to her due to HIPPA regulations, and

      that Great-Aunt caused Child to be emotionally upset by implying that Mother

      was not taking care of her properly and was taking Mother to court. The GAL

      states that, in her opinion, Mother is doing what she believes to be in Child’s

      best interest; that encouraging Child to have a relationship with her biological


      Court of Appeals of Indiana | Memorandum Decision No. 20A03-1703-MI-536 |October 26, 2017   Page 4 of 22
      father’s family, even though her father was not active in her life, shows Mother

      is placing Child’s needs first; that she had no indication there was any

      vindictiveness or malice in Mother’s decision to stop contact; that Mother said

      if Child wants contact she will do what she believes best at that time but, for

      now, Child still harbors sad and angry feelings toward Great-Aunt and does not

      want to see her.


[6]   On November 7, 2016, Mother filed a motion to dismiss under Ind. Trial Rule

      12(B)(6) arguing that Rumfelt is not a grandparent under Ind. Code § 31-9-2-77

      as an adoption was finalized on October 27, 2016, under cause number 20D01-

      1609-AD-75 (“Cause No. 75”), terminating the parental rights of Child’s

      father.1 The chronological case summary shows that Rumfelt filed an objection

      on the following day. Following a hearing, the court issued an order on

      December 1, 2016, denying Mother’s motion to dismiss. The court’s order

      stated that Rumfelt’s petition for grandparent visitation was filed on October

      22, 2015, that Mother and her husband filed an adoption proceeding on

      September 6, 2016, that the adoption decree was issued on November 1, 2016,

      and that Mother knew the adoption was pending and that the visitation matter

      would not be resolved until after the adoption was approved.


[7]   On January 20, 2017, the court held an evidentiary hearing on Rumfelt’s

      petition. At the hearing, Rumfelt indicated that she had an issue with her




      1
          The trial court took judicial notice of Cause No. 75.


      Court of Appeals of Indiana | Memorandum Decision No. 20A03-1703-MI-536 |October 26, 2017   Page 5 of 22
      ability to hear and testified: “I was born with a RH factor with my parents and

      it did some brain damage. And all it did was my hearing loss. And the speech

      just happens. It comes up whenever it feels like it, I guess.” Transcript at 33.

      She indicated she has learned to read lips and has about twenty percent hearing

      loss. When asked how long her son and Mother were together after Child was

      born, Rumfelt answered “[u]ntil she was two years old” and “I’m not really

      sure.” Id. at 41. She testified that, when Child was first born, she would babysit

      Child. When asked how often she would babysit, Rumfelt answered “[j]ust

      varies; when they needed me, mostly.” Id. at 42. Rumfelt testified that Great-

      Aunt and Paternal Great-Grandmother lived together. When asked how the

      split between her son and Mother affected her relationship with Mother,

      Rumfelt answered “[n]ot really sure why; it went sour.” Id. at 43. She

      indicated her son moved to Fort Wayne, where he lived until two years ago,

      and that now he is in Washington State. She testified that her son saw Mother

      and Child when Child was around two years of age and that he has had no

      contact with Child since then. When asked if she attempted to contact Mother

      to see Child, Rumfelt answered that one night she went to Mother’s apartment

      because she knew that Child was at Paternal Great-Grandmother’s house and

      that Mother would not answer the door and that she would call her and Mother

      would not answer the phone, and that “then I just decided she didn’t want to

      talk to me.” Id. at 45.


[8]   Rumfelt indicated that, after her son left, it was two or three years before she

      saw Child again, that during this time Great-Aunt saw Child, that Mother told


      Court of Appeals of Indiana | Memorandum Decision No. 20A03-1703-MI-536 |October 26, 2017   Page 6 of 22
      Great-Aunt that Rumfelt was not allowed to be there, and “I just went along

      with it.” Id. at 46. She testified she started to see Child again when she was

      five or six years old, that Child was eleven years old now, and that the last time

      she saw Child was in August of 2015. When asked “[n]ow, [Child] has some

      medical problems, is that correct,” Rumfelt answered “I presume, that’s what

      they tell me, I’m trying to find out what it is.” Id. at 51. When asked about the

      GAL’s statement that “this really isn’t about you, it’s your sister,” Rumfelt

      replied “[w]ell, I think [Great-Aunt] overstepped her boundaries a little bit.” Id.

      at 52. Rumfelt indicated that Child was about or less than two years old in

      December of 2007 and that in the summer of 2007 Child was at her house,

      Child crawled into her dog’s cage, the dog followed her in, and she took a

      photograph of Child in the cage. She indicated that Mother did not want her to

      have Child by herself and she did not have much of a relationship with Child

      until she was approximately five or six years old, that she then began to visit

      with Child at Great-Aunt and Paternal Great-Grandmother’s house and saw

      Child “[m]aybe twice a month,” and that she never reached out to Mother to

      request time with Child from the time Child was five years old until Child was

      about to have surgery. Id. at 64.


[9]   Great-Aunt indicated that she took care of Child while Mother worked before

      Mother and Child’s father split, that after they split Child would visit her on the

      weekends, and that Mother told her not to leave Child alone with Rumfelt.

      Great-Aunt testified she went to the hospital after Child had a blood transfusion

      and that Mother was very distant. She stated that she contacted the office of


      Court of Appeals of Indiana | Memorandum Decision No. 20A03-1703-MI-536 |October 26, 2017   Page 7 of 22
       Child’s doctor in South Bend and asked that Child’s records be transferred to

       Child’s new doctor in Fort Wayne, that she called the South Bend doctor again

       a week later to follow up, and that she never told the office that she was

       Mother. When asked how she found out the hospital where Child was having

       her blood transfusion, Great-Aunt replied that she called the hospital to see if

       Child was registered and that Mother did not tell her the location of the

       transfusion. When asked whether she or Rumfelt had the better relationship

       with Child, Great-Aunt testified “[p]robably me.” Id. at 105.


[10]   The GAL testified that, when she did her initial home visit at Rumfelt’s home,

       Great-Aunt was present and informed her that she and Paternal Great-

       Grandmother were the ones who were involved with Child for the vast majority

       of the time she would visit. The GAL stated that the majority of the

       conversation was with Great-Aunt and that Rumfelt said very little. The GAL

       testified that she had seen nothing to indicate that Mother is not an attentive,

       caring parent and that she met and spoke with Mother’s husband and has no

       issues with him. The GAL testified she “came away with the understanding

       that [Great-Aunt] was the primary person [Child] spent time with,” “that’s just

       the way it was,” “I know that [Mother] had some issues with [Rumfelt] [and]

       was concerned about [Child] being alone with [Rumfelt],” “I think part of that

       was to accommodate . . . because of [Mother’s] concerns,” “but it was clear that

       the visits were between [Great-Aunt] and [Child] and they . . . would spend

       some time with [Rumfelt].” Id. at 123.




       Court of Appeals of Indiana | Memorandum Decision No. 20A03-1703-MI-536 |October 26, 2017   Page 8 of 22
[11]   The GAL further testified she met with Child three or four times and had

       conversations with her outside the presence of Mother and that Child is very

       articulate and clear about how she feels and what she likes and does not like.

       The GAL indicated that Great-Aunt affirmatively told her that she initiated this

       action in Rumfelt’s name.


[12]   The GAL stated that Child’s position from the first meeting with her is that she

       loves Mother, that Mother took good care of her, that she did not like it when

       Great-Aunt said that Mother did not take good care of her and Child should

       come live with her, and that was really disturbing to Child. The GAL testified

       that her impression is that Mother is trying to protect Child and that Child does

       not need to be dealing with the conflict between the adults. She stated that the

       last time she met with Child, Child’s position was unchanged, that “in her

       mind, [Great-Aunt] got mom in trouble” and “took mom to court,” that Child

       was upset because she loves Mother and Mother takes care of her, and that

       Child was offended that somebody would criticize Mother in that way. Id. at

       134-135. The GAL also testified that “I think when [Child] talks about Auntie,

       grandma, you know, she kind of, she does kind of lump them all together, but

       the primary relationship is auntie.” Id. at 135. She indicated that Child is not

       expressing a desire to see and spend time with Great-Aunt. She also indicated

       that, when she first discussed visitation with Great-Aunt in August, Child was

       hesitant and not thrilled but indicated that she could be okay with that, but

       when the GAL brought it up again later, Child said “No. No” and that Child is




       Court of Appeals of Indiana | Memorandum Decision No. 20A03-1703-MI-536 |October 26, 2017   Page 9 of 22
       worried about Great-Aunt’s statement that Child should live with her. Id. at

       136.


[13]   The GAL also noted that Child is intelligent and articulate that her feelings

       need to be heard and seriously considered, and that she believes Mother is

       doing what she believes to be best for Child. The GAL also indicated that

       Rumfelt had ample opportunity to contact her and to discuss her feeling in this

       case. When asked her recommendation, the GAL responded that she does not

       want Child to be in a position where it is implied or outright stated that Mother

       has created problems and that is “just not true” in her opinion, that she thinks

       Great-Aunt owes Child and Mother an apology, and that she thinks Mother is

       the best one to decide. Id. at 139.


[14]   Mother’s husband testified about his relationship with Mother and Child and

       Mother’s care for Child over the years, he had been married to Mother for over

       seven years, he met Child when she was eighteen months old and regarded her

       as his daughter, he had no reason to believe Mother has acted in a way that is

       not in Child’s best interest, and that he had been introduced to Rumfelt but that

       was the extent of it.


[15]   Mother testified that Child was eleven years old, that she had not heard from

       Child’s father since December of 2007, and that she personally did not have

       much of a relationship with Rumfelt except that she was her former boyfriend’s

       mother. When asked about Rumfelt’s testimony that she came to her

       apartment to ask about visitation with Child, Mother indicated that she was not


       Court of Appeals of Indiana | Memorandum Decision No. 20A03-1703-MI-536 |October 26, 2017 Page 10 of 22
       aware of that occurring and that, with respect to the timeframe Rumfelt

       referenced, Mother was not living there and was living at her now brother-in-

       law’s house with her current husband. Mother testified that there was an

       instance in the summer of 2007 when she went to pick up Child from Rumfelt’s

       house and, when she pulled up, she walked into the garage and Child was in a

       car alone, the windows were rolled up, and Child was sleeping in a car seat.


[16]   Mother testified that, after she and Child’s father split, she expressed to Great-

       Aunt that she did not want Child to be alone with Rumfelt, that Rumfelt had

       never tried to contact her until this court proceeding, and that she did not hear

       from Rumfelt directly for about eight years. Mother indicated that Child would

       see Great-Aunt on weekends, that to her knowledge Rumfelt did not see Child

       on a regular basis, and that she discovered Rumfelt was at Great-Aunt’s house

       when Child visited because Child told Mother when she returned home.

       Mother indicated that Child learned that Rumfelt was her grandmother in

       October 2015, that she received a phone call that she was going to court and

       then it was necessary to explain to Child that Rumfelt was her paternal

       grandmother, and that Child had referred to Rumfelt as “Patty.” Id. at 178.


[17]   Mother stated that Child became ill and had several tests in February 2015, a

       procedure was scheduled in South Bend, Great-Aunt invited another person

       who was a priest or pastor to be present, and Child was not thrilled that person

       was present. She testified there were issues with medications and Child’s

       symptoms and that communication with the doctor’s office was horrible, she

       asked Child’s pediatrician for a referral to another doctor, she was referred to a

       Court of Appeals of Indiana | Memorandum Decision No. 20A03-1703-MI-536 |October 26, 2017 Page 11 of 22
       specialist in Fort Wayne, the doctor in Fort Wayne was “right on top of things”

       and helped with Child’s medications, and at one point Child traveled to Fort

       Wayne every two weeks while a medicine was administered intravenously. Id.

       at 181.


[18]   Mother testified that after she started to take Child to Fort Wayne, Great-Aunt

       stopped by her house unannounced and told her that it was an inconvenience

       for Mother to take Child there. Mother stated that the day Child needed a

       blood transfusion she was not in the hospital room for five minutes before

       Great-Aunt arrived and that it was a concern to her that Great-Aunt obtained

       the information from the hospital that Child was there.


[19]   Mother testified that, the following week, she found the text message that

       Great-Aunt had sent to Child stating that Mother was not taking care of her

       properly and that she became upset, and that, during the week after her second

       transfusion, Child received a phone call that Great-Aunt was taking Mother to

       court. Id. at 184. Mother testified she does not believe that it is in Child’s

       interest for the court to enforce a visitation schedule between Child and

       Rumfelt, that she felt Child is “mature enough . . . to know where she wants to

       be,” that she does not want to force Child to do anything she does not want to

       do, and that if Child asked “if she can go over there, if she can see them, then I

       would. I would definitely say then yes she can see them.” Id. at 187. When

       asked if Child has been asking that, Mother answered in the negative.




       Court of Appeals of Indiana | Memorandum Decision No. 20A03-1703-MI-536 |October 26, 2017 Page 12 of 22
[20]   Mother testified she has had the same phone number for eight years and

       Rumfelt had never contacted her until May 2016, immediately after the first

       court hearing, in which Rumfelt asked for visitation and she replied “No.”

       Mother testified she was very intimidated by Great-Aunt, that “hence the fact I

       could hardly ever say, ‘No’ to her,” and that her “anxiety would be so bad

       around her.” Id. at 192. When asked why she told Great-Aunt not to allow

       Rumfelt to be alone with Child, Mother answered “I don’t feel that she is

       competent to . . . make sure that she is safe . . . after finding her in . . . the car in

       the garage with the windows up sleeping” and stated that Child was less than

       two years old at that time. Id. at 195.


[21]   Mother’s mother testified regarding her observations of Mother and Child and

       that to her knowledge Child has no relationship with Rumfelt. Mother’s father

       also testified regarding his observations of Mother and Child, that as far as he

       knew Child had no relationship with Rumfelt, and that he would describe the

       relationship between Mother and Child as strong. The court took the matter

       under advisement. The parties submitted written closing arguments to the

       court.


[22]   On February 10, 2017, the trial court entered an order denying Rumfelt

       visitation. The order provides in part:


                Biological father, petitioner’s son, had little contact with the child
                for many years and his parental rights were terminated when
                mother’s husband adopted the child under [Cause No. 75].



       Court of Appeals of Indiana | Memorandum Decision No. 20A03-1703-MI-536 |October 26, 2017 Page 13 of 22
        Based upon the manner and content of Patricia Rumfelt’s
        testimony in this proceeding, she appears to suffer from
        impairments from what she described as “brain damage at birth.”
        She has had some contact over the years with [Child]. Her sister,
        [Great-Aunt], has spent substantially more time with the child
        than [Rumfelt]. [Rumfelt’s] more recent contacts with the child
        have been when the child was in [Great-Aunt’s] care. Until the
        summer of 2015, the child did not know [Rumfelt] was her
        grandmother, but just another family member she visited with
        when she was at [Great-Aunt’s] home. The child found some
        photographs in mother’s home and figured out that [Rumfelt]
        was her father’s mother.

        [Child] has suffered serious medical issues and [Great-Aunt] has
        attempted to interfere with the manner of treatment she was
        receiving. This resulted in [Great-Aunt] texting [Child] telling
        her that [Mother] was not taking good care of her and that
        [Child] should live with her. [Child] to this day harbors
        resentment toward [Great-Aunt] for these actions and she
        harbors resentment toward [Great-Aunt] for these proceedings.
        [Child] does not want to see her. [Child] does not see [Rumfelt]
        as the main character in this drama, but rather [Great-Aunt] as
        the main character. [Child’s] responses concerning grandparent
        visitation were always responded to by her as to what [Great-
        Aunt] was doing. The GAL is of the same belief which appears
        to be an accurate understanding of the situation. “The petition
        filed under Patricia Rumfelt’s name was actually initiated by
        [Great-Aunt].” See: GAL Report filed in this case March 8,
        2016, as well as, testified to during these proceedings.

        Grandparent has not shown by a preponderance of the evidence
        that it is in [Child’s] best interest to have grandparent visitation.
        The court finds [Child] has emotional distress concerning
        continued contact with her biological father’s family including
        [Rumfelt] at this time in her life.

        Mother has consistently acted in [Child’s] best interest and she
        does not have any vindictiveness or malice toward [Great-Aunt]
Court of Appeals of Indiana | Memorandum Decision No. 20A03-1703-MI-536 |October 26, 2017 Page 14 of 22
               or [Rumfelt]. She understands the need for [Child] to continue
               her connection to her father’s biological family when [Child] is
               ready and desires that contact. [Child] has been through much
               emotional distress from learning at 10 years of age who, in fact, is
               her biological father and who is her biological paternal
               grandmother. Furthermore, she has gone through major health
               problems resulting in major surgery, as well as, feeling
               threatened, by [Great-Aunt], to be taken away from the only
               consistent family she has known; that is, [Mother]. Although
               [Great-Aunt] assisted mother in prior years with care of [Child]
               those ties have been broken over the years by the events that have
               occurred. Mother will act in [Child’s] best interest. Further,
               [Child] does not want this contact because she is resentful of
               [Great-Aunt’s] interference and she does not see her paternal
               grandmother as a major factor in her life. When she thinks of her
               father’s family, she thinks of [Great-Aunt]. The court finds
               insufficient evidence to substitute its judgment for mother’s
               judg[e]ment in regard to [Child’s] contact with her father’s
               family.


       Appellant’s Appendix at 11-12.


                                                      Discussion

[23]   The issue is whether the trial court abused its discretion in denying Rumfelt’s

       petition for grandparent visitation. Grandparent visitation is governed by Ind.

       Code §§ 31-17-5. Consistent with Ind. Code § 31-17-5-6,2 the trial court’s order

       denying Rumfelt’s petition for grandparent visitation includes findings and

       conclusions. This Court applies the well-established Indiana Trial Rule 52




       2
        Ind. Code § 31-17-5-6 provides: “Upon hearing evidence in support of and opposition to a petition filed
       under this chapter, the court shall enter a decree setting forth the court’s findings and conclusions.”

       Court of Appeals of Indiana | Memorandum Decision No. 20A03-1703-MI-536 |October 26, 2017 Page 15 of 22
       standard of review: first, we consider whether the evidence supports the

       findings; second, we determine whether the findings support the judgment. In

       re Visitation of K.M., 42 N.E.3d 572, 575-576 (Ind. Ct. App. 2015). We shall not

       set aside the findings or judgment unless clearly erroneous, and due regard shall

       be given to the opportunity of the trial court to judge the credibility of the

       witnesses. Id. at 576. We will find clear error if there is no evidence supporting

       the findings or the findings fail to support the judgment or if the trial court

       applies the wrong legal standard to properly found facts. Id. Additionally, our

       review is conducted with a preference for granting latitude and deference to our

       trial judges in family law matters. In re Visitation of L-A.D.W., 38 N.E.3d 993,

       997 (Ind. 2015). Because Rumfelt appeals a negative judgment, she must show

       that the evidence points unerringly to a conclusion different from that reached

       by the trier of fact. See Wilder-Newland v. Kessinger, 967 N.E.2d 558, 560 (Ind.

       Ct. App. 2012), trans. denied.


[24]   Rumfelt asserts that, while the trial court’s finding regarding her brain damage

       at birth is factually correct because she has hearing loss attributable to brain

       damage at birth, the evidence does not support the implication that she suffers

       an intellectual impairment. She argues that the evidence does not support the

       finding that Mother understands the need for Child to continue her connection

       to her father’s biological family when she is ready and desires that contact, that

       Child did not testify, that it was Mother who ended all contacts with the

       biological family of Child’s father, and that Rumfelt did not want to adopt

       Child or take her from Mother. She further argues that Great-Aunt’s


       Court of Appeals of Indiana | Memorandum Decision No. 20A03-1703-MI-536 |October 26, 2017 Page 16 of 22
       involvement with Child and possible overstepping of her boundaries should not

       have been relevant in the decision as to whether Rumfelt should have visitation

       with Child. She contends that Mother denied her the opportunity to visit with

       Child, she did not know why she was denied visitation, the record does not

       reflect that Child was ever injured or harmed while visiting with her, that

       although Child had visited with her, Great-Aunt, and Paternal Great-

       Grandmother in the past, Mother suddenly denied visitation shortly after Child

       learned about her biological father, and that she had visitation with Child

       during the early years of Child’s life.


[25]   Mother responds that Child has not had a significant relationship with Rumfelt,

       that Child sees Rumfelt only occasionally when Child is at the home of Great-

       Aunt and Paternal Great-Grandmother, that Rumfelt has not had Child by

       herself for eight years, and that during that period Rumfelt never contacted

       Mother about why she was not allowed to have Child without supervision.

       Mother asserts there is no doubt that she is a fit parent and that she acted in

       Child’s best interest in arranging medical care for Child. Mother also argues

       that Rumfelt is not entitled to visitation under Ind. Code §§ 31-17-5 because she

       no longer qualifies as a grandparent and, at the time of Child’s adoption by

       Mother’s husband, Rumfelt did not have any already-established right to

       visitation with Child.


[26]   Ind. Code § 31-17-5-1 provides that “[a] child’s grandparent may seek visitation

       rights” under certain circumstances including if the child was born out of



       Court of Appeals of Indiana | Memorandum Decision No. 20A03-1703-MI-536 |October 26, 2017 Page 17 of 22
       wedlock.3 Ind. Code § 31-17-5-2 provides in part that the court may grant

       visitation rights “if the court determines that visitation rights are in the best

       interests of the child” and that, in determining the best interests of the child, the

       court may consider whether a grandparent has had or has attempted to have

       meaningful contact with the child. Ind. Code § 31-17-5-9 provides in part that

       visitation rights provided for in section 1 survive the adoption of the child by a

       stepparent. “Maternal or paternal grandparent,” for purposes of Ind. Code §§

       31-17-5, includes the adoptive parent of the child’s parent, the parent of the

       child’s adoptive parent, and the parent of the child’s parent. Ind. Code § 31-9-2-

       77.


[27]   Grandparent visitation must be balanced with the fact that the natural parents

       have a fundamental constitutional right to direct their children’s upbringing

       without undue governmental interference. In re Visitation of M.L.B., 983 N.E.2d

       583, 586 (Ind. 2013). To protect this fundamental right, a trial court’s order on

       grandparent visitation must address the following factors:


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

                (2) the “special weight” that must therefore be given to a fit
                parent’s decision regarding nonparental visitation (thus




       3
        Ind. Code § 31-17-5-1(b) provides that a court may not grant visitation rights to a paternal grandparent of a
       child who is born out of wedlock if the child’s father has not established paternity in relation to the child.

       Court of Appeals of Indiana | Memorandum Decision No. 20A03-1703-MI-536 |October 26, 2017 Page 18 of 22
               establishing a heightened standard of proof by which a
               grandparent must rebut the presumption);

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

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


       Id. (citations omitted). “The first three required factors implement the

       constitutionally protected right of fit parents to make child rearing decisions,

       and reflect the significant burden of proof grandparents must carry to override

       those decisions.” Id. at 587. As for the fourth factor, in determining the child’s

       best interests, the court may consider whether a grandparent has had or has

       attempted to have meaningful contact with the child. In re Visitation of K.M., 42

       N.E.3d 572, 577 (Ind. Ct. App. 2015) (citing Ind. Code § 31-17-5-2(b)). A

       child’s best interests do not necessarily override a parent’s right to control his or

       her child’s upbringing. Id. (citing M.L.B., 983 N.E.2d at 586).


[28]   Even assuming that Rumfelt is a person qualified to seek grandparent visitation

       under Ind. Code §§ 31-17-5, we cannot find that the trial court’s order denying

       her petition is clearly erroneous. The record reveals that the trial court heard

       the testimony of Rumfelt, Great-Aunt, the GAL, Mother, Mother’s husband,

       and Mother’s parents and that each of the witnesses was thoroughly examined

       and cross-examined by counsel for the parties. Rumfelt does not argue that

       Mother is an unfit parent. The evidence and testimony presented supports the
       Court of Appeals of Indiana | Memorandum Decision No. 20A03-1703-MI-536 |October 26, 2017 Page 19 of 22
       trial court’s findings that Rumfelt has had some contact over the years with

       Child, Great-Aunt has spent substantially more time with Child than Rumfelt,

       Rumfelt’s more recent contacts with Child have been when she was in Great-

       Aunt’s care, and until 2015 Child did not know Rumfelt was her grandmother.

       The testimony also supports the court’s findings that Great-Aunt has attempted

       to interfere with the manner of treatment Child was receiving, that Great-Aunt

       sent a text message to Child telling her that Mother was not taking good care of

       her and that Child should live with her, that Child harbors resentment toward

       Great-Aunt for these actions and for these proceedings and does not want to see

       her, and that, although Great-Aunt assisted Mother in prior years with care of

       Child, those ties have been broken over the years by the events that have

       occurred. The trial court found that Rumfelt has not shown that it is in Child’s

       best interest to have grandparent visitation, that Mother has consistently acted

       in Child’s best interest, and the evidence was insufficient to substitute its

       judgment for that of Mother in regard to Child’s contact with her father’s

       family. The evidence supports the conclusion that Mother is a fit parent, and

       thus special weight must be given to her decision regarding nonparental

       visitation. The trial court’s order does not preclude visitation, and Mother may

       grant visitation at her discretion.


[29]   Based upon the evidence as set forth above and in the record, and in light of our

       preference for granting latitude and deference to trial judges in family law

       matters and giving due regard for the opportunity of the trial judge to determine

       the credibility of the witnesses, we cannot conclude that the judgment of the


       Court of Appeals of Indiana | Memorandum Decision No. 20A03-1703-MI-536 |October 26, 2017 Page 20 of 22
       trial court is clearly erroneous. See Wilder-Newland, 967 N.E.2d at 563-566

       (noting that a fit parent’s decisions are entitled to special weight and that the

       trial court’s order did not preclude visitation and the mother has complete

       discretion and the ability to grant visitation on the terms she decides, and

       affirming the trial court’s order declining grandparent visitation where it

       ultimately concluded that doing so was in the children’s best interest consistent

       with the mother’s decision).


[30]   As for Mother’s request for attorney fees, Ind. Code § 34-52-1-1 provides in part

       that the court in a civil action may award attorney fees as part of the cost to the

       prevailing party if it finds that either party brought an action or continued to

       litigate an action that is frivolous, unreasonable, or groundless or litigated the

       action in bad faith. Appellate Rule 66(E) provides in part that this Court “may

       assess damages if an appeal, petition, or motion, or response, is frivolous or in

       bad faith. Damages shall be in the Court’s discretion and may include

       attorneys’ fees.” Our discretion to award attorney fees under Ind. Appellate

       Rule 66(E) is limited to instances when “an appeal is permeated with

       meritlessness, bad faith, frivolity, harassment, vexatiousness, or purpose of

       delay.” Thacker v. Wentzel, 797 N.E.2d 342, 346 (Ind. Ct. App. 2003). We must

       use extreme restraint when exercising this power because of the potential

       chilling effect upon the exercise of the right to appeal. Id. To prevail on a

       substantive bad faith claim, the party must show that the appellant’s

       contentions and arguments are utterly devoid of all plausibility. Id. Procedural

       bad faith occurs when a party flagrantly disregards the form and content


       Court of Appeals of Indiana | Memorandum Decision No. 20A03-1703-MI-536 |October 26, 2017 Page 21 of 22
       requirements of the rules of appellate procedure, omits and misstates relevant

       facts appearing in the record, and files briefs written in a manner calculated to

       require the maximum expenditure of time both by the opposing party and the

       reviewing court. Id. at 346-347. We cannot say that Rumfelt’s petition was

       frivolous or that her arguments are utterly devoid of all plausibility and decline

       to order Rumfelt to pay Mother’s attorney fees.


                                                   Conclusion

[31]   For the foregoing reasons, we affirm the order of the trial court denying

       Rumfelt’s petition for grandparent visitation and deny Mother’s request for

       attorney fees.


[32]   Affirmed.


       Najam, J., and Kirsch, J, concur.




       Court of Appeals of Indiana | Memorandum Decision No. 20A03-1703-MI-536 |October 26, 2017 Page 22 of 22
