MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                               FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any
                                                                Nov 23 2016, 10:28 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                                  ATTORNEY FOR APPELLEE
Erik H. Carter                                          Michael R. Auger
Carter Legal Services LLC                               Franklin, Indiana
Noblesville, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

In Re the Visitation of:                                November 23, 2016
K.W. and A.W. (Minors),                                 Court of Appeals Case No.
                                                        41A05-1605-MI-1046
E.B.,
                                                        Appeal from the Johnson Superior
Appellant-Petitioner,                                   Court
        v.                                              The Honorable Marla Clark, Judge
                                                        Trial Court Cause No.
J.W.,                                                   41D04-1409-MI-164
Appellee-Respondent




Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 41A05-1605-MI-1046 | November 23, 2016   Page 1 of 10
[1]   E.B. (Grandmother) appeals the judgment of the trial court, which granted the

      request of J.W. (Father) that he be allowed to deny Grandmother and J.B.

      (Grandfather) (collectively, Grandparents) visitation with K.W. (Son) and

      A.W. (Daughter) (collectively, Children). Grandmother argues the following:

      (1) the trial court improperly excluded one statement from evidence; (2) the trial

      court should have ruled on Grandparents’ petition to appoint a guardian ad

      litem before holding hearings; (3) the trial court did not properly consider

      certain factors regarding their visitation rights; and (4) the trial court’s findings

      were not supported by the record. Finding no error, we affirm.


                                                    Facts
[2]   Father and Mother were married and had two children together: Son, born in

      2002, and Daughter, born in 2004. Father filed a petition to dissolve the

      marriage in 2006. Father and Mother contested custody. Grandmother

      intervened in the divorce, also seeking custody. She alleged that Father had

      sexually assaulted Daughter, an allegation investigated by the Department of

      Child Services (DCS) but never substantiated. When Father was granted

      custody of Children in 2007, both Mother and Grandmother continued,

      unsuccessfully, to attempt to obtain custody.


[3]   Mother passed away in August 2014. A month later, Grandparents sought a

      grandparent visitation order, which the trial court granted in December 2014 by

      agreement of the parties. The parties were able to abide by this order, but




      Court of Appeals of Indiana | Memorandum Decision 41A05-1605-MI-1046 | November 23, 2016   Page 2 of 10
      Grandparents continued to contact DCS, alleging that Father was neglecting

      Children. These allegations were also unsubstantiated.


[4]   In March 2015, Children were in Grandparents’ care but were staying the night

      at Children’s aunt’s house. Son sexually assaulted his six-year-old cousin.

      When the aunt told Father about the incident, Father called DCS and the

      police, and Son was placed in juvenile detention for two months. Son has been

      on probation and has received counseling since the incident. Shortly after this

      incident, Daughter attended a “Good Touch, Bad Touch” instructional

      program at her school. After the class was over, Daughter disclosed that Son

      had inappropriately touched her three years earlier. Father has since placed an

      alarm on Son’s bedroom door and instituted a rule that Son cannot be alone

      with children younger than him. In the opinion of the trial court, “[f]aced with

      a difficult parenting issue, [Son]’s sexual assault of a relative, Father has acted

      appropriately and taken reasonable steps to hold [Son] accountable, get him

      needed treatment, and protect other members of the household.” Appellant’s

      App. p. 13. Since the March 2015 incident, Grandparents have requested

      visitations with Daughter, but not with Son.


[5]   Over the course of 2015, Grandparents filed two contempt petitions in response

      to Father’s noncompliance with the visitation order; one was granted, the other

      withdrawn. The trial court ordered additional visitation to make up for these

      missed visits.




      Court of Appeals of Indiana | Memorandum Decision 41A05-1605-MI-1046 | November 23, 2016   Page 3 of 10
[6]   In December 2015, Daughter was visiting with Grandparents and had a fever.

      Without administering any over the counter medication or contacting Father,

      Grandparents took Daughter to the emergency room. When the hospital

      contacted Father, he refused to give his consent for treatment. Father did,

      however, take Daughter to the doctor the following day. Since this incident,

      Grandparents have not had any visitation with Children.


[7]   Grandparents’ relationship with Father, needless to say, is not a healthy one.

      Grandmother has called DCS on several occasions. Other members of

      Mother’s side of the family have also called DCS; Father estimates that DCS

      has visited him at least twice per year, every year, since he obtained custody.

      None of the allegations against him have been substantiated. The parties’

      communications are often contentious; on one occasion, Father requested

      Grandmother to stop harassing him, to which she responded in a text message,

      “U are just the sperm donor.” Appellant’s App. p. 12. Grandmother has told

      Daughter that Father is not a good parent. Grandparents’ request that they

      only want visitation with Daughter but not Son has caused Son to feel

      unwanted.


[8]   On January 14, 2016, Father filed a Petition for Modification of Visitation,

      alleging that Grandmother’s conduct rendered grandparent visitation no longer

      in the best interests of Children. Five days later, Grandparents filed an

      Emergency Petition for Guardianship, alleging that Father “is not willing to

      protect his daughter from ongoing sexual abuse.” Id. at 26-27. Grandparents

      also requested that the trial court appoint a guardian ad litem (GAL).

      Court of Appeals of Indiana | Memorandum Decision 41A05-1605-MI-1046 | November 23, 2016   Page 4 of 10
[9]    The trial court held a hearing on March 29, 2016, at which Father,

       Grandmother, and others testified. On April 14, 2016, the trial court granted

       Father’s petition, denied Grandparents’ petitions, and ordered Grandmother to

       pay $1,500 in attorney fees to Father. Grandmother now appeals.1


                                      Discussion and Decision
[10]   Grandmother has four arguments on appeal: (1) the trial court improperly

       excluded one statement from evidence; (2) the trial court erred by not

       appointing a GAL; (3) the trial court did not consider all appropriate factors in

       its decision to terminate Grandparents’ visitation; and (4) there was insufficient

       evidence supporting some of the trial court’s findings of fact.


                                        I. Excluded Statement
[11]   Grandmother argues that the trial court should not have sustained a hearsay

       objection, made by Father after Grandmother began a statement with, “I got

       [Daughter] and then she come up to me and said . . . .” Tr. p. 52.

       Grandmother argues that the conclusion to this sentence was necessary to

       decide the case.


[12]   Grandmother’s argument is unavailing. To reverse a trial court’s decision to

       exclude evidence, there must have been error by the court that affected a party’s

       substantial rights and the party must have made an offer of proof or the



       1
        Grandparents are divorced. Grandfather lives out of state, has not exercised visitation, and is not
       participating in this appeal.

       Court of Appeals of Indiana | Memorandum Decision 41A05-1605-MI-1046 | November 23, 2016          Page 5 of 10
       evidence must have been clear from the context. Harman v. State, 4 N.E.3d 209,

       215 (Ind. Ct. App. 2014). Grandmother did not make any offer of proof, nor is

       the substance of what she was planning to say clear from the context. We

       simply have no idea what evidence she was seeking to admit and, therefore, we

       cannot say that her substantial rights were affected.


                                  II. Appointment of a GAL
[13]   Grandmother next argues that the trial court committed reversible error when it

       did not rule on the GAL petition before ruling in Father’s favor.


[14]   The appointment of a guardian ad litem is a matter left to the trial court’s sound

       discretion. Gilbert v. Gilbert, 7 N.E.2d 316, 323 (Ind. Ct. App. 2014). Here, the

       trial court made the following conclusion in its order: “The appointment of a

       Guardian ad Litem is not in the children’s best interest. The children have

       already undergone interviews with trained professionals about the facts at issue

       here. It would be harmful to them to have to talk to yet another person about

       these issues.” Appellant’s App. p. 14.


[15]   Although this case certainly includes some very troubling circumstances, the

       proper authorities have been notified and involved throughout. DCS

       investigated and eventually closed the case of Son’s sexual assault. DCS has

       also investigated the allegations made against Father and found them to be

       unsubstantiated. The trial court did not err by finding that it did not need to

       appoint a GAL to make its decision, and we decline to reverse on this basis.



       Court of Appeals of Indiana | Memorandum Decision 41A05-1605-MI-1046 | November 23, 2016   Page 6 of 10
                                       III. McCune Factors
[16]   Grandmother also argues that the trial court did not address all of the factors

       required to decide a case involving grandparent visitation.


[17]   In Indiana, a child’s grandparent may seek visitation rights if the child’s parent

       is deceased. Ind. Code § 31-17-5-1. On the other hand, “natural parents have a

       fundamental constitutional right to direct their children’s upbringing without

       undue governmental interference, and . . . a child’s best interests do not

       necessarily override that parental right.” In re Visitation of M.L.B., 983 N.E.2d

       583, 585-86 (Ind. 2013) (citing Troxel v. Granville, 530 U.S. 57 (2000)). In

       striking this balance, our Supreme Court has clarified that a grandparent

       visitation order “must address” the following factors, known as the McCune

       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
               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


       Court of Appeals of Indiana | Memorandum Decision 41A05-1605-MI-1046 | November 23, 2016   Page 7 of 10
               (4) whether the petitioning grandparent has established that
               visitation is in the child’s best interests.


       Id. at 586 (emphasis original).


[18]   Grandmother acknowledges that the trial court made findings tailored to the

       first two factors: it found that “[a]ll of the evidence supports the conclusion that

       Father is a fit parent.” Appellant’s App. p. 13. It also acknowledged the

       “special weight” given to Father’s wish to terminate Grandparents’ visitation.

       Id.


[19]   Grandmother alleges that trial court did not address the other two factors, but

       she is mistaken. Regarding whether Father is completely or partially denying

       Grandparents’ access to Children, the trial court acknowledged that Father was

       denying all visitation but found that “[t]he level of conflict that grandparent

       visitation introduces into Father’s family is extreme and harmful to the

       children.” Id. at 13. Moreover, the trial court noted that Father still allows

       contact with other members of Mother’s family. Id.


[20]   Regarding whether Grandparents have established that visitation is in

       Children’s best interests, the trial court made the following conclusion:

       “Visitation with Grandfather has not been taking place. Visitation between

       Grandmother and [Son] is not in [Son]’s best interest. Visitation between

       Grandmother and [Daughter] is not in [Daughter]’s best interest.” Id.


[21]   In short, the trial court properly addressed all of the McCune factors. It (1)

       found that Father was a fit parent, (2) accorded his decision special weight, (3)

       Court of Appeals of Indiana | Memorandum Decision 41A05-1605-MI-1046 | November 23, 2016   Page 8 of 10
       properly noted that Father is seeking to terminate all visitation, but (4) found

       that this decision was in Children’s best interests. The trial court made no error

       in this regard.


                           IV. Evidence Supporting Findings
[22]   Finally, Grandmother argues that several findings of the trial court are not

       supported by evidence. We will set aside findings of fact only if they are

       “clearly erroneous,” deferring to the trial court’s superior opportunity to

       “judgment the credibility of the witnesses.” M.L.B., 983 N.E.2d 583, at 585.


[23]   Grandmother contends that there is no evidence supporting the trial court’s

       finding that Children are being emotionally scarred by visitation with

       Grandparents. Appellant’s App. p. 13. But at the hearing, Father was

       specifically asked about the emotional health of Children, and he testified that

       visitations were “significantly, emotionally harming” Daughter. Tr. p. 32.

       Grandmother also contends that there is no evidence supporting the trial court’s

       finding that “Father . . . provides a safe, healthy, drug free, and appropriate

       home . . . .” Appellant’s App. p. 13. Again, Father testified that he did so. Tr.

       p. 35-36. Grandmother also challenges the finding that “[t]he parties have no

       ability to effectively communicate. There is constant conflict regarding

       scheduling, exchange times, and locations.” Appellant’s App. p. 12. But the

       trial court had evidence that Grandmother referred to Father as a mere “sperm

       donor,” language that is not conducive to effective communication. Tr. p. 24.




       Court of Appeals of Indiana | Memorandum Decision 41A05-1605-MI-1046 | November 23, 2016   Page 9 of 10
[24]   In short, Grandmother disagrees with several of the findings of fact made by the

       trial court and, essentially, asks us to reweigh testimony to make different

       findings. As the trial court was in a much better position to judge the credibility

       of witnesses, this is a request that we deny.


[25]   The judgment of the trial court is affirmed.


       Vaidik, C.J., and Najam, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 41A05-1605-MI-1046 | November 23, 2016   Page 10 of 10
