MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                           FILED
regarded as precedent or cited before any                             Dec 10 2018, 9:19 am

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


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Robert Owen Vegeler                                     Douglas E. Johnston
Vegeler Law Office LLC                                  Angelica N. Fuelling
Fort Wayne, Indiana                                     Tourkow, Crell, Rosenblatt &
                                                        Johnston, LLP
                                                        Fort Wayne, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the                                    December 10, 2018
Guardianship of Zachary                                 Court of Appeals Case No.
Johnson:                                                18A-GU-816
Adam D. Johnson,                                        Appeal from the
                                                        Allen Superior Court
Appellant-Respondent,
                                                        The Honorable
        v.                                              Phillip E. Houk, Magistrate
                                                        Trial Court Cause No.
Sarah Oswalt,                                           02D09-1412-GU-242

Appellee-Petitioner.



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-GU-816 | December 10, 2018               Page 1 of 8
[1]   Adam D. Johnson (“Adam”) appeals the trial court’s order that removed him

      as guardian for his adult son, Zachary Johnson (“Zach”), and that appointed

      Sarah Oswalt (“Sarah”), Zach’s mother, as Zach’s successor guardian. Adam

      raises the following issue: whether the trial court abused its discretion in

      terminating his role as guardian and appointing Sarah as permanent successor

      guardian.


[2]   We affirm.


                                 Facts and Procedural History
[3]   Zach is unable to manage his personal and financial affairs because he suffers

      from Autism Spectrum Disorder, depression, anxiety, ADHD, and Smith

      Lemli Opitz Syndrome. Tr. Vol. 2 at 41, 52-53; Appellant’s App. Vol. 2 at 16.

      Zach turned eighteen years of age in December of 2014, so in May of 2015,

      Adam and Sarah agreed that Adam would serve as Zach’s guardian. Id. at 19-

      23.


[4]   Sarah later wanted to increase her parenting time, so in February of 2016, she

      filed a motion to modify parenting time. Id. at 24. The trial court ordered

      mediation, but before mediation could begin, Adam moved with Zach to North

      Carolina. Tr. Vol. 2 at 56. Adam neither consulted Sarah about the move, nor

      sought or received permission from the trial court for the move. Id. at 56, 129.

      Adam’s move to North Carolina hindered Sarah’s efforts to communicate with

      Zach. Id. at 57. In the nearly one year that Zach was in North Carolina, Adam

      did not procure services for Zach. Id. at 97, 125, 130-31.

      Court of Appeals of Indiana | Memorandum Decision 18A-GU-816 | December 10, 2018   Page 2 of 8
[5]   On March 2, 2017, Sarah filed a verified petition to remove Adam as guardian.

      Appellant’s App. Vol. 2 at 6, 26-27. The trial court issued an interim order

      requiring Adam to facilitate contact between Sarah and Zach. Id. at 28- 30. It

      also ordered Adam and Sarah to coordinate an Indiana Trial Rule 35

      evaluation of Zach and reschedule mediation, which the trial court said could

      be conducted by telephone. Id. at 29.


[6]   Adam failed to have Zach evaluated as directed by the trial court and did not

      participate in any mediation sessions. Tr. Vol. 2 at 130-31. He also did not

      allow Sarah to visit Zach. Id. at 124-25. Therefore, Sarah filed a motion for

      immediate temporary change of guardianship, which the trial court heard on an

      emergency basis without Adam attending the hearing. Appellant’s App. Vol. 2 at

      9; 31-33. Citing Adam’s disregard for its orders, the trial court suspended

      Adam’s authority as guardian and appointed Sarah as temporary guardian. Id.

      at 34-35. Specifically, the trial court found that “[Adam’s] conduct in ignoring

      the court’s orders and preventing the mother/son relationship from advancing

      is directly and adversely affecting the best interests of [Zach] and causing

      immediate and substantial injury to him.” Id.


[7]   Sarah then travelled to North Carolina to bring Zach back to Indiana. Tr. Vol. 2

      at 57. Because Zach had not received services for nearly one year, Sarah

      immediately tried to coordinate services for Zach, even as she was driving back

      to Indiana. Id. at 58. She eventually arranged services with Todd Clark

      (“Clark”), a behavioral therapist, and Taylor Hartsock (“Hartsock”), a day



      Court of Appeals of Indiana | Memorandum Decision 18A-GU-816 | December 10, 2018   Page 3 of 8
      program supervisor at Passages Incorporated, a not-for-profit organization that

      serves individuals with developmental disabilities. Id. at 8; 18-20.


[8]   Once back in Indiana, Sarah made sure that Zach immediately received

      medical and dental care. Id. at 62-64. Further, she made efforts to maintain a

      positive relationship between Zach and Adam by arranging visits and regular

      communication through text messaging. Id. at 64.


[9]   At the hearing on Sarah’s verified petition to remove Adam as guardian and

      appoint her as successor guardian, Clark, Hartsock, and Michael Setlak

      (“Setlak”), Zach’s guardian ad litem, testified about Sarah’s efforts to obtain

      services for Zach, the appropriateness of her home, her qualities as a parent, her

      efforts to maintain a relationship between Zach and Adam, and whether it was

      in Zach’s best interests for her to become Zach’s permanent guardian. For

      instance, when Clark was asked about Sarah’s interaction with Zach, he

      testified that she was “[e]xcellent... she was very on the ball it seemed to me.”

      Id. at 10. Clark also testified that Sarah was an excellent parent: “she would be

      in the top of the parents I have met, honestly.” Id. Clark had no concerns

      about Sarah’s small home1 or Zach’s interactions with his siblings. Id. at 11, 17.

      Hartsock’s testimony about Sarah was also positive. Hartsock said that Sarah




      1
        The residence is about 1100 square feet and houses four people (five people when Sarah’s boyfriend spends
      the night) and six pets. Tr. Vol 2 at 71, 76-77.

      Court of Appeals of Indiana | Memorandum Decision 18A-GU-816 | December 10, 2018                 Page 4 of 8
       was “very involved” in the intake process and that “she kept in communication

       [and was] very pleasant.” Id. at 20.


[10]   Donovan Martin (“Martin”), a licensed mental health counselor, also testified,

       stating that his testing of Sarah had shown that reunifying her with Zach was

       appropriate. Id. at 33-34. Martin also attested to Sarah’s ability to procure

       appropriate services for Zach, stating that she was able to obtain services “faster

       than I have seen a lot of people do it.” Id. at 42. Setlak also praised Sarah’s

       ability to arrange services for Zach, testifying that Sarah did more in the

       preceding four or five months to procure services for Zach than Adam had done

       over a fifteen-month period. Id. at 140. When asked about the possibility of

       letting Adam resume his role as guardian, Setlak worried that Adam would

       once again cut off contact between Zach and Sarah. Id. at 140-41. Thus, Setlak

       recommended that the trial court appoint Sarah as Zach’s permanent guardian.

       Id. at 144.


[11]   In its final order addressing Sarah’s verified petition to remove Adam as Zach’s

       guardian and appoint her as successor guardian, the trial court found and

       ordered as follows:


               3. [Sarah], in a relatively short time, has procured services and
               implemented a broad strategy to assist in [Zach’s] development
               and increasing [Zach’s] self-reliance. The continued utilization
               of these services and implementation of this strategy is in
               [Zach’s] best interests.


               4. [Sarah] has demonstrated a high degree of cooperation
               regarding [Zach’s] visitation with . . . [Adam].
       Court of Appeals of Indiana | Memorandum Decision 18A-GU-816 | December 10, 2018   Page 5 of 8
               Therefore, the Court discharges [Adam] as Guardian and
               appoints [Sarah] to serve as the Successor Guardian of [Zach].


       Appellant’s App. Vol. 2 at 14-15. Adam now appeals.


                                     Discussion and Decision
               A trial court is vested with discretion in making determinations
               as to the guardianship of an incapacitated person. See Ind. Code §
               29-3-2-4; In re Guardianship of Atkins, 868 N.E.2d 878, 883 (Ind.
               Ct. App. 2007), trans. denied. This discretion extends to both its
               findings and its order. [In re] Atkins, 868 N.E.2d at 883. Thus,
               we apply the abuse-of-discretion standard to review the trial
               court’s findings and order. Id. An abuse of discretion occurs
               when the trial court’s decision is clearly against the logic and
               effect of the facts and circumstances presented. Id.


       In re Guardianship of Morris, 56 N.E.3d 719, 723 (Ind. Ct. App. 2016).


[12]   “The trial court’s paramount consideration in making its determination of the

       person to be appointed guardian is the best interest of the incapacitated person.”

       In re Atkins, 868 N.E.2d at 883. A court “may remove a guardian on its own

       motion or on petition of the protected person or any person interested in the

       guardianship, after notice and hearing, on the same grounds and in the same

       manner as is provided under [Indiana Code section] 29-1-10-6 for the removal

       of a personal representative.” Ind. Code § 29-3-12-4(a). These grounds include

       the failure “to perform any duty imposed by law or by any lawful order of the

       court, or [if the guardian] has ceased to be domiciled in Indiana.” Ind. Code §

       29-1-10-6(b). With the approval of the trial court, a guardian may “change the

       physical presence of the protected person to another place in Indiana or to
       Court of Appeals of Indiana | Memorandum Decision 18A-GU-816 | December 10, 2018   Page 6 of 8
       another state if the court finds that such a change is in the best interests of the

       protected person.” Ind. Code § 29-3-9-2.


[13]   Here, the trial court did not abuse its discretion in removing Adam as Zach’s

       guardian as Adam defied court orders, undermined Sarah’s relationship with

       Zach, and failed to perform duties imposed by law. Specifically, Adam defied

       the trial court’s orders to 1) participate in mediation, 2) facilitate visits between

       Zach and Sarah, 3) obtain a Trial Rule 35 evaluation of Zach and 4) procure

       services for Zach. See Tr. Vol. 2 at 57, 97, 124-25, 130-31. Adam violated the

       law when he moved with Zach to North Carolina without first seeking

       permission from the trial court. Id. at 56, 129; see also I.C. § 29-3-9-2. Of equal

       concern was Setlak’s testimony that letting Adam continue as guardian would

       possibly undermine Sarah’s relationship with Zach. Tr. Vol. 2 at 140-41.


[14]   Likewise, the trial court did not abuse its discretion in appointing Sarah as

       permanent successor guardian as nearly all evidence about her was positive.

       For instance, once she picked up Zach in North Carolina, Sarah immediately

       reached out to experts to arrange services for Zach, something that Adam was

       unable or unwilling to do during a fifteen-month period. Id. at 58, 140. Sarah

       tried to maintain a positive relationship between Zach and Adam by arranging

       visits and regular communication, while Adam had stymied all of Sarah’s

       efforts to maintain a relationship with Zach while Zach lived with Adam in

       North Carolina. Id. at 64, 124-25. Upon arrival in Indiana, Sarah immediately

       attended to Zach’s dental and medical needs. Id. at 62-64.



       Court of Appeals of Indiana | Memorandum Decision 18A-GU-816 | December 10, 2018   Page 7 of 8
[15]   The glowing testimony from Zach’s service providers about Sarah also illustrate

       that the trial court did not abuse its discretion in appointing Sarah as successor

       guardian. For example, Clark described Sarah's interaction with Zach as

       “[e]xcellent... she was very on the ball it seemed to me” and that ““she would

       be in the top of the parents I have met . . . .” Id. at 10. Both Martin and Setlak

       were impressed with Sarah’s ability to procure services for Zach. Id. at 42, 140.


[16]   In arguing that the trial court’s ruling was an abuse of discretion, Adam invites

       us to reweigh the evidence. For instance, he contends that his more spacious,

       pet-free living quarters, where Zach would have his own bedroom, would make

       him a better guardian than Sarah. See Appellant’s Br. at 7. He also claims he

       would make a better guardian because Zach’s grandparents would help

       supervise Zach, and Adam would ensure that Zach regularly attends church.

       See id. This evidence was before the trial court, and its ruling shows that it

       found it was outweighed by the evidence that Zach’s best interests were served

       by appointing Sarah as successor guardian. See In re Atkins, 868 N.E.2d at 883.

       The prerogative to weigh evidence belongs to the trial court, not this court, and

       we will not second guess its assessment of the evidence. See In re Morris, 56

       N.E.3d at 723.


[17]   Affirmed.


       Vaidik, C.J., and Riley, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-GU-816 | December 10, 2018   Page 8 of 8
