                                                                                              FILED
                                                                                         May 30 2017, 8:35 am

                                                                                              CLERK
                                                                                          Indiana Supreme Court
                                                                                             Court of Appeals
                                                                                               and Tax Court




      ATTORNEYS FOR APPELLANT                                   ATTORNEY FOR APPELLEE
      Shana D. Tesnar                                           Amber M. Neal
      Christopher J. Evans                                      Delk McNally LLP
      Adler Tesnar & Whalin                                     Muncie, Indiana
      Noblesville, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      In the Matter of the                                      May 30, 2017
      Guardianship of I.R.,                                     Court of Appeals Case No.
                                                                18A05-1610-GU-2431
      M.P. and D.P.,
                                                                Appeal from the
      Appellants-Respondents,                                   Delaware Circuit Court
              v.                                                The Honorable
                                                                Marianne L. Vorhees, Judge
      M.M.J.S.,                                                 Trial Court Cause No.
                                                                18C01-1501-GU-7
      Appellee-Petitioner.




      Kirsch, Judge.


[1]   M.P. and D.P. (together, “Guardians”) appeal the trial court’s order granting

      M.M.J.S.’s (“Mother”) petition to terminate their guardianship over I.R.

      (“Child”). Guardians raise the following issue for our review: whether the trial

      court erred in terminating their guardianship because the evidence did not

      support the trial court’s order.

      Court of Appeals of Indiana | Opinion 18A05-1610-GU-2431 | May 30, 2017                   Page 1 of 12
[2]   We affirm.


                                  Facts and Procedural History
[3]   Child is the biological child of Mother and was born on March 7, 2012. In

      December 2014, when Child was two years old, Mother was arrested for

      neglect of a dependent. At that time, with Mother’s consent, Child was placed

      in the care of Guardians, who were Mother’s aunt and uncle. On January 27,

      2015, Guardians filed a petition for temporary guardianship of Child, to which

      Mother consented, and the petition was granted by the trial court on February

      24, 2015. On May 12, 2015, a review hearing was held, during which, the trial

      court granted the Guardians permanent guardianship of Child. In the order

      granting permanent guardianship, the trial court ordered that Mother must

      meet certain conditions prior to modifying or terminating the guardianship.

      Appellant’s App. at 26-27. These conditions were as follows:


              a. Mother must show she has housing that is safe and stable for
              the Child to the satisfaction of this Court;


              b. Mother must show she has stable income for a reasonable
              period of time to support and financially care for the Child to the
              satisfaction of this Court;


              c. Mother must show that she has been evaluated for substance
              abuse and mental health and that she is receiving regular
              treatment for the same and has a reasonable plan to continue
              treatment as recommend[ed] and confirmed by the treating
              professionals to the satisfaction of this Court;



      Court of Appeals of Indiana | Opinion 18A05-1610-GU-2431 | May 30, 2017   Page 2 of 12
              d. Mother must show that she is making progress and is healthy
              for a reasonable period of time, which includes a showing that
              she is sober and mentally stable and not a danger to herself or to
              the Child, to the satisfaction of this Court;


              e. Mother must show that she is committed to staying healthy
              and is able to care for and offer a stable environment for the
              Child, to the satisfaction of this Court.


      Id. Mother consented to the guardianship of Child and to the conditions for

      modification and termination. Id. at 24.


[4]   On November 25, 2015, Mother filed a “Verified Petition to Modify and/or

      Terminate Guardianship and Request for Expedited Hearing.” Id. at 29. The

      Guardians filed three motions to continue the hearing on Mother’s petition,

      which were granted by the trial court. A final hearing was held on September

      9, 2016, at which evidence was heard.


[5]   At the hearing, Mother testified that she was living in an apartment, where she

      had resided for over four years. Tr. at 8. The apartment had two bedrooms,

      and Child had his own room. Id. Mother was working at McDonald’s and had

      been employed there for a year; she had started as a crew member and worked

      her way up to being a manager. Id. at 9. Although her hours fluctuated at the

      time of the hearing, she had made arrangements to have more stable hours if

      Child was returned to her care. Id. at 9-10.


[6]   Mother had previously pleaded guilty to her charge of neglect of a dependent

      and received eighteen months of probation. Id. at 4-5. At the time of the

      Court of Appeals of Indiana | Opinion 18A05-1610-GU-2431 | May 30, 2017      Page 3 of 12
      hearing, Mother had almost completed her probation period and was set to be

      released from probation on October 8, 2016. Id. at 5. As part of her probation,

      Mother was subject to random drug screening, and she passed all of the screens.

      Id. at 6. Mother underwent a substance abuse evaluation through Delaware

      County Community Corrections (“DCCC”) and followed the

      recommendations of DCCC. Id. at 11. She met with a substance abuse

      counselor every two weeks for a period of time and was also being treated by a

      doctor at Meridian Services concerning her substance abuse issues. Id. at 11-12.

      Mother also sought a mental health evaluation and had been treated for her

      mental health issues by a doctor since March 2016. Id. at 13. Mother had

      attempted to seek treatment in October or November 2015, but was put on a

      waiting list and not seen until March 2016. Id. At the time of the hearing,

      Mother was still seeing her doctor and was taking antidepressant medication for

      depression and anxiety. Id. at 14-15. At a prior hearing, Mother testified she

      had been diagnosed as bipolar, but her new doctor determined that diagnosis

      was incorrect. Id. at 28.


[7]   Initially, Mother had supervised visitation with Child that occurred once a

      week for two hours. Id. at 17. This visitation schedule lasted for almost a full

      year. Id. She was later allowed to visit with Child for one day a week from

      8:00 a.m. to 7:00 p.m. Id. at 16-17. Mother never missed any visitation with

      Child. Id. at 18.


[8]   While Child stayed with Guardians, he displayed behavioral issues at school,

      and Guardians took him to Dr. Sara Davis (“Dr. Davis”) in November 2015.
      Court of Appeals of Indiana | Opinion 18A05-1610-GU-2431 | May 30, 2017   Page 4 of 12
       Id. at 41, 43. Dr. Davis treated Child for his issues involving interaction with

       his classmates and testified that Child was diagnosed with post-traumatic stress

       disorder, attention deficit disorder, and disruptive attachment issues. Id. at 42,

       43. Dr. Davis testified that she believed it was in Child’s best interest to have

       Mother participate in Child’s therapy, and Mother did participate in the therapy

       sessions when allowed. Id. at 52, 60. Dr. Davis stated that Child had a hard

       time with transitions, and that a transition plan should be implemented to

       prepare Child for a transition from Guardians to Mother. Id. at 66. Child also

       required an Individualized Educational Plan (“IEP”), which Dr. Davis and

       Child’s pre-school teacher both testified could be transitioned to another school

       if he was placed with Mother. Id. at 68, 77, 131.


[9]    At the conclusion of the hearing, the trial court issued an order terminating the

       guardianship. In the order, the trial court found that Mother had satisfied all of

       the conditions set forth in the order granting permanent guardianship.

       Appellant’s App. at 8-9. The trial court thus found that Mother had carried her

       burden to show she had met all of the conditions and also found that Guardians

       failed to carry their burden to overcome the presumption in Mother’s favor that

       she should raise Child. Id. at 9-10. The trial court ordered a transition period

       for custody to return Child to Mother’s care. Id. at 10. Guardians now appeal.


                                      Discussion and Decision
[10]   “‘All findings and orders of the trial court in guardianship proceedings are

       within its discretion.’” In re Guardianship of M.N.S., 23 N.E.3d 759, 765 (Ind.


       Court of Appeals of Indiana | Opinion 18A05-1610-GU-2431 | May 30, 2017   Page 5 of 12
       Ct. App. 2014) (quoting In re Guardianship of Hollenga, 852 N.E.2d 933, 936

       (Ind. Ct. App. 2006) (citing Ind. Code § 29-3-2-4(a))). We will review the trial

       court’s order for an abuse of discretion. Id. Therefore, “[w]e review custody

       modifications[,]” such as the one that occurred in this termination of the

       guardianship, “for abuse of discretion with a ‘preference for granting latitude

       and deference to our trial judges in family law matters.’” K.I. ex rel. J.I. v. J.H.,

       903 N.E.2d 453, 457 (Ind. 2009) (quoting Kirk v. Kirk, 770 N.E.2d 304, 307

       (Ind. 2002)). In determining whether the trial court abused its discretion, we

       review the court’s findings and conclusions, which we may not set aside unless

       they are clearly erroneous. In re M.N.S., 23 N.E.3d at 766 (citing In re

       Guardianship of J.K, 862 N.E.2d 686, 690-91 (Ind. Ct. App. 2007)). We will

       consider the evidence most favorable to the judgment with all reasonable

       inferences drawn in favor of the judgment, and we will not reweigh the

       evidence nor will we reassess the credibility of witnesses. Id.


[11]   Guardians argue that the trial court erred in terminating their guardianship of

       Child. They assert that, although Mother has a constitutional right to raise

       Child, such a right does not overcome Child’s best interest, which is served by

       continued placement with Guardians. Guardians contend that Mother failed to

       make a sufficient showing that she had met all of the conditions ordered in the

       permanent guardianship order. They maintain that the only evidence that

       Mother presented during the hearing to establish that she met the conditions

       was her own self-serving testimony. Guardians further claim that, even if

       Mother had shown that she met all of the conditions, they presented evidence


       Court of Appeals of Indiana | Opinion 18A05-1610-GU-2431 | May 30, 2017      Page 6 of 12
       to successfully rebut the presumption of custody in favor of Mother. They

       allege that their evidence established that Child had spent a considerable

       amount of time in their care and had bonded with them, terminating the

       guardianship would be harmful to Child, and Child has psychological and

       behavioral issues that Mother is not prepared to accommodate. Therefore,

       Guardians urge that insufficient evidence was presented to support the trial

       court’s order terminating their guardianship of Child.


[12]   “Indiana courts have long held that ‘[e]ven when a parent initiates an action to

       reobtain custody of a child that has been in the custody of another, the burden

       of proof does not shift to the parent . . . [r]ather, the burden of proof is always

       on the third party.’” K.I., 903 N.E.2d at 460 (quoting In re J.K., 862 N.E.2d at

       692)). There is a strong presumption that a child’s interests are best served by

       placement with the natural parent. Id. (citing In re Guardianship of B.H., 770

       N.E.2d 283, 287 (Ind. 2002), reh’g denied). A parent’s burden to show a

       modification of custody is justified is “minimal,” and after meeting “this

       ‘minimal’ burden of persuasion to terminate the guardianship, the third party

       has the burden to prove ‘by clear and convincing evidence that the child’s best

       interests are substantially and significantly served by placement with another.’”

       In re M.N.S., 23 N.E.3d at 766 (quoting In re B.H., 770 N.E.2d at 27).


[13]   Here, in order to meet her burden, Mother was required to show that she had

       met the conditions set forth in the trial court’s order granting permanent

       guardianship to Guardians. Under the first condition, Mother was required to

       show that she had safe and stable housing for Child. Appellant’s App. at 26. At

       Court of Appeals of Indiana | Opinion 18A05-1610-GU-2431 | May 30, 2017     Page 7 of 12
       the hearing, Mother presented evidence that she lived in her own apartment,

       which had two bedrooms, and that she had lived there for over four years. Tr.

       at 8. Under the second condition, Mother was required to show that she had

       stable income for a reasonable period of time that would enable her to support

       and financially care for Child. Appellant’s App. at 26. Mother testified at the

       hearing that she was working at McDonald’s as a manager and had been

       employed there for a year. Tr. at 9. Guardians do not challenge these two

       conditions, and we agree with the trial court that Mother presented sufficient

       evidence to meet these two conditions.


[14]   Under the third condition, Mother was required to show that she had been

       evaluated for substance abuse and mental health, was receiving regular

       treatment, and had a reasonable plan to continue treatment as recommended

       and confirmed by the treating professionals to the satisfaction of this Court.

       Appellant’s App. at 26 (emphasis added). The evidence at the hearing established

       that Mother had been subject to random drug screening as part of her probation

       and had passed all of the screens. Tr. at 6. Mother underwent a substance

       abuse evaluation through DCCC and followed their recommendations,

       including meeting with a substance abuse counselor and being treated by a

       doctor at Meridian Services concerning her substance abuse issues. Id. at 11-12.

       Mother also obtained a mental health evaluation and had been treated for her

       mental health issues by a doctor since March 2016. Id. at 13. We conclude that

       Mother presented sufficient evidence to support the trial court’s findings that

       she had met the third condition. Guardians’ arguments to the contrary are

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       merely requests for this court to reweigh the evidence, which we cannot do. In

       re M.N.S., 23 N.E.3d at 766.


[15]   Under conditions four and five, Mother was required to show, to the

       satisfaction of the trial court, that: (1) she was making progress and had been

       healthy for a reasonable period of time, which included a showing that she is

       sober and mentally stable and not a danger to herself or to Child; and (2) she

       was committed to staying healthy and was able to care for and offer a stable

       environment for Child. While it is unclear whether Guardians are arguing that

       Mother failed to meet these conditions, there was sufficient evidence presented

       to support the trial court’s findings that Mother met conditions four and five.

       As stated previously, Mother testified that she was seeing a substance abuse

       counselor and being treated by a doctor for her substance abuse issues and that

       she was being treated by a doctor for her mental health issues. Tr. at 11-13.

       Mother never missed any visitation with Child and had secure housing and

       stable employment. Mother’s testimony demonstrated that she had made great

       effort to turn her life around and was committed to continuing her treatment.

       We, therefore, conclude that sufficient evidence was presented to show that

       Mother had met the conditions set forth in the order granting permanent

       guardianship.


[16]   Because Mother sufficiently met her burden of showing that she satisfied the

       conditions set forth by the trial court, Guardians then had the burden to prove

       ‘by clear and convincing evidence that the child’s best interests are substantially

       and significantly served by placement with another.’” In re M.N.S., 23 N.E.3d

       Court of Appeals of Indiana | Opinion 18A05-1610-GU-2431 | May 30, 2017   Page 9 of 12
       at 766 (quoting In re B.H., 770 N.E.2d at 27). In support of their contention that

       Child’s best interests would be served by leaving Child in their care, Guardians

       contend that removing him from their care would be traumatic and point to

       testimony by Dr. Davis that it would be a “trauma” to terminate their

       guardianship. Tr. at 57. However, Guardians misstate Dr. Davis’s testimony.

       She testified that an immediate removal from Guardians’ care would be

       “another trauma” for Child, but did not give testimony that a gradual transition

       would have the same effect. Id. In its order terminating the guardianship, the

       trial court ordered a transition period to gradually increase Mother’s parenting

       time with Child until she had full-time care of Child. Appellant’s App. at 10-11.

       Additionally, there was also no testimony that transitioning Child back to

       Mother’s care would be harmful because of his bond with Guardians.


[17]   Guardians also assert that the trial court did not consider the passage of time

       and its effect on their bond with Child, specifically the finding from the order

       granting permanent guardianship that, “[i]f a long period of time has elapsed

       before Mother can show she is able to meet the above conditions, such period

       of time and the affect [sic] of such time on the Child will also be considered in

       determining modification and/or termination of the guardianship.” Appellant’s

       App. at 22. Guardians claim that they have had guardianship of Child for

       almost half of Child’s life, and in its order terminating the guardianship, the

       trial court ignored the finding, in its previous order, regarding the passage of

       time. Mother filed her petition to terminate guardianship on November 25,

       2015, which was less than one year after Child was placed with Guardians and


       Court of Appeals of Indiana | Opinion 18A05-1610-GU-2431 | May 30, 2017   Page 10 of 12
       about six months after the order granting permanent guardianship was issued.

       After the petition was filed, Guardians filed three motions to continue the

       proceedings, which may have added to the length of the proceedings.

       Guardians do not point to any evidence how the lapse of time was of such great

       length that it would have been harmful to return Child to Mother’s care,

       especially in light of the evidence that Mother filed her petition within one year

       of Child being placed with Guardians and six months of the permanent

       guardianship order and that Mother consistently had visitation with Child.


[18]   Guardians next contend that the trial court did not give proper consideration to

       Mother’s alleged lack of appreciation of and preparation for Child’s

       psychological and behavioral issues. However, the trial court did specifically

       recognize Guardians’ argument that Child’s special needs would best be served

       by remaining in their care; it found that the evidence did not establish that

       Mother could not address Child’s special needs and that the fact that Child had

       special needs did not “preclude [Mother] from the opportunity and the right to

       parent her child.” Appellant’s App. at 9-10. The trial court further found,

       because the Guardians had limited Mother’s parenting time with Child and had

       no plan to increase Mother’s time with Child, that it was difficult to determine

       whether Mother had the ability to properly care for Child and that Guardians

       had not given Mother an opportunity to demonstrate her ability to care for

       Child. Id. at 10. The evidence supported these findings by the trial court. We,

       therefore, conclude that Guardians did not carry their burden to overcome the




       Court of Appeals of Indiana | Opinion 18A05-1610-GU-2431 | May 30, 2017   Page 11 of 12
       presumption in Mother’s favor that Child’s best interests are served by

       placement with her.1


[19]   Affirmed.


[20]   Mathias, J., and Altice, J., concur.




       1
         Guardians make a brief reference in their conclusion to the fact that a guardian ad litem was not appointed
       in this matter with no citation to authority or argument. We conclude that any issue as to the failure to
       appoint a guardian ad litem is waived for failure to support their argument with cogent reasoning or citation
       to authority. Ind. Appellate Rule 46(A)(8)(a).

       Court of Appeals of Indiana | Opinion 18A05-1610-GU-2431 | May 30, 2017                         Page 12 of 12
