Opinion
24A-DC-533
11-08-2024
Maegan Hiss, Appellant v. Matthew Hiss, et al., Appellees
ATTORNEYS FOR APPELLANT William McCarthy Megan Stuart Indianapolis, Indiana Jillian Chasen South Bend, Indiana ATTORNEYS FOR APPELLEES Dana K. Carlson Tyler J. Rotstein Fort Wayne, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Whitley Circuit Court The Honorable Matthew J. Rentschler, Judge Trial Court Cause Nos. 92C01-1903-DC-86, 92C01-2012-MI-952
ATTORNEYS FOR APPELLANT William McCarthy Megan Stuart Indianapolis, Indiana Jillian Chasen South Bend, Indiana
ATTORNEYS FOR APPELLEES Dana K. Carlson Tyler J. Rotstein Fort Wayne, Indiana
Chief Judge Altice Judges Bailey and Mathias concur.
MEMORANDUM DECISION
Altice, Chief Judge.
Case Summary
[¶1] Maegan Hiss (Mother), a single mother to four young children, suffered a near fatal stroke following a motor vehicle accident in December 2020. She was left severely incapacitated but with great resilience made a dramatic recovery over the next year. While Mother was incapacitated to the point of needing a guardian, her brother and his wife, Matthew (Uncle) and Sarah (Aunt) Hiss (collectively, the Hisses), cared for the children and obtained temporary legal custody of them. At each stage of her recovery, Mother's contact with the children and involvement with their lives increased, with the eventual goal of Mother regaining custody.
[¶2] In May 2022, believing that she was at a point in her recovery where she could fully care for the children, Mother filed a pro-se motion to modify custody. To avoid litigation and try to prove her capabilities to the Hisses, Mother entered into custody modification agreements with them at the end of May (the May 2022 Agreements). These agreements significantly increased her parenting time with the children. Then in November 2022, Mother again filed pro-se motions seeking custody, which were later amended by counsel.
[¶3] After a January 2024 factfinding hearing, the trial court denied Mother's request for the return of her children and ordered the parties to share joint legal and physical custody. The court determined that the parental presumption in favor of Mother had been rebutted because through the May 2022 Agreements Mother had "voluntarily relinquished" custody and her "long acquiescence" to third-party custody increased the bond between the Hisses and the children "such that severing that bond would seriously harm the current and future happiness of the children." Appellant's Appendix at 54. We agree with Mother that the trial court's voluntary relinquishment and acquiescence findings are clearly erroneous and that Mother, as a fit parent, is entitled to full custody of her children.
[¶4] We reverse and remand.
Facts &Procedural History
[¶5] Mother has three daughters with her ex-husband, Elmer Ortiz Del Cid (Elmer): R.O., born in 2014; I.O., born in 2015; and E.O., born in 2018 (collectively, the Girls). Mother and Elmer separated at the end of 2018, and their marriage was dissolved on June 28, 2019, in Cause No. 92C01-1903-DC-86 (the Dissolution Action). Pursuant to a dissolution settlement agreement, Mother was granted sole legal and primary physical custody of the Girls, and Elmer received parenting time but no overnights. Mother and the girls remained in Columbia City living in the home of and with her mother, Jill Hiss (Grandmother). Grandmother helped care for the Girls, as Mother worked full time as a manager at the local McDonald's and had various other part-time jobs.
[¶6] In November 2020, Mother gave birth to her son, M.H. (Son), whose father is Rene Hernandez (Rene). Son remained in the NICU after his birth. On December 2, 2020, days before Son's release from the hospital, Mother was involved in a motor vehicle accident and suffered a stroke during surgery. She was unresponsive for several days, and it was unclear whether she would survive. Upon Son's release from the NICU, therefore, the Hisses took him into their home and petitioned for third-party custody under Cause. No. 92C01-2012-MI-952 (the Third-Party Action). On December 15, 2020, pursuant to an agreement with Rene, the trial court granted the Hisses temporary legal and physical custody of Son.
[¶7] The Girls remained in Grandmother's care after the accident but then transitioned to the Hisses' home at the end of December. Around this same time, under Cause No. 92C01-2012-GU-42 (the Guardianship Action), Grandmother was appointed, first temporarily and then permanently, as guardian of Mother's person and estate due to Mother's mental and physical incapacitation.
[¶8] On January 6, 2021, the Hisses moved to intervene in the Dissolution Action and filed an emergency motion seeking temporary custody of the Girls through Mother's period of incapacitation. At a hearing on February 5, Elmer agreed to the Hisses having temporary custody, as he lived in Fort Wayne with others and did not have suitable housing for three more children. Accordingly, the court awarded temporary custody to the Hisses with Elmer having parenting time every weekend. The court also appointed Dawn Boyd to serve as Guardian Ad Litem (GAL) for the Girls.
[¶9] Mother was discharged from the hospital on January 21, 2021, to the care of Grandmother. At the time, Mother had limited mobility, difficulty communicating, and could not bathe, dress, or feed herself. Grandmother arranged for in-home health care and managed Mother's health care decisions. Grandmother also applied for and obtained Social Security Disability Insurance (SSDI) benefits for Mother, which she began receiving on Mother's behalf in June 2021. Throughout 2021, Mother participated in occupational, physical, and speech therapies and eventually regained the ability to walk, communicate, and care for herself.
In January 2022, the Hisses applied for auxiliary SSDI benefits for the children. Aunt served as the representative payee for the children, who each began receiving $190 per month in benefits.
[¶10] After Mother's acute months of recovery passed, Grandmother was able to take her to visit the children at the Hisses' home, which was less than ten minutes away. These visits increased as Mother's condition continued to improve, and Aunt eventually began also bringing the children over to Grandmother's house for visits. Toward the end of 2021, Mother wanted even more time with the children.
[¶11] On May 5, 2022, in the Guardianship Action, Grandmother filed a motion to terminate the guardianship due to Mother's improved mental and physical capabilities. The trial court granted the motion on May 13, 2022.
[¶12] Also on May 5, Mother filed a pro-se motion for modification of custody, listing both the Dissolution Action and the Third-Party Action. In her handwritten motion, Mother stated that she was "better now" and "would like to have my children in my custody now." Appellant's Appendix at 94. The Hisses resisted, believing that Mother was not ready to care full time for the children. To avoid litigation and prove to the Hisses that she was capable, Mother signed the May 2022 Agreements, which were drafted by the Hisses and established significant parenting time for Mother. The agreement relating to the Girls placed them with Mother for essentially the entire summer break, June 4 to August 7, 2022, and provided Mother with parenting time during the next school year. The agreement for Son provided Mother with summer parenting time of two daily visits per week from 10:00 a.m. to 5:00 p.m. plus an overnight visit every Saturday through Sunday evening. After the summer, Mother was to retain her Saturday overnights and one daily visit during the week. On June 2, 2022, the trial court entered orders in accordance with the May 2022 Agreements, which resolved Mother's pending motion to modify custody.
[¶13] Mother again filed pro-se motions to modify custody in the Third-Party Action and the Dissolution Action, on November 9 and 17, 2022, respectively. After the Hisses retained counsel later that month, Mother did the same. On January 9, 2023, Mother's counsel filed amended motions for modification of custody, providing in part:
Mother seeks modification of custody of the Children such that sole legal and physical custody of the Children is returned to her.
The emergency circumstance - Mother's incapacity due to traumatic health event - which prompted the [Hisses] to seek temporary third party custody of Children has ended. Mother has regained capacity. She completed physical, speech, and occupational therapies. She has obtained and maintained employment. Mother is engaged in vocational rehabilitation services. She has health insurance and provides health insurance for Children. Mother has stable housing. She sought and now receives [SSDI] benefits. Mother has regained the ability to manage her own financial and personal affairs and is capable of managing the same for Children. Mother's ability to drive a vehicle is impaired. She requires additional therapies to regain her ability to process written language. Nevertheless, Mother's health condition is greatly improved and she continues to receive appropriate medical and vocational services to advance toward her pre-accident level of functioning.Id. at 119-20 (the Dissolution Action); see also id. at 113-14 (the Third-Party Action).
Mother began working part-time at McDonald's in February 2022. In 2023, she earned about $16,000 from this employment. This income was in addition to her $1,600 monthly SSDI benefits.
[¶14] On March 21, 2023, and over Mother's objection, the trial court granted the Hisses' request for referral to mediation. At mediation in June 2023, the parties reached a provisional agreement, which the court accepted. The agreement expanded Mother's parenting time. That is, in the summer, Mother was to have the Girls all but a handful of days and Son each week from Saturday to Tuesday. During the school year, Mother would have the Girls on alternating weeks and Son during those same weeks from Saturday to Tuesday. The agreement also required GAL Boyd to file a report by December 1, 2023, and provided for custody to be transferred to Mother thereafter if GAL Boyd so recommended. The parties agreed to have a contested hearing in January if GAL Boyd did not recommend that Mother have custody.
[¶15] GAL Boyd filed her report with the trial court on December 6, 2023. She recommended that the Hisses retain third-party custody of the children, but that Mother receive increased parenting time with Son. The recommendation was based on GAL Boyd's opinion that Mother lacked the current fitness or capability to independently (that is, without Grandmother's help) provide fulltime care, support, and custody of the children.
[¶16] After a two-day contested hearing, the trial court issued its order on February 7, 2024, denying Mother's request for full custody. Instead, the court granted her shared legal custody and parenting time pursuant to the June 2023 mediation agreement except with one additional overnight with Son. The court also ordered the Hisses to share with Mother 50% of the auxiliary SSDI benefits received to provide qualifying items for the children at Mother's home.
[¶17] Mother now appeals. Additional information will be provided below as needed.
Standard of Review
[¶18] The trial court entered specific findings of fact and conclusions in its custody modification order. Pursuant to Indiana Trial Rule 52(A), we will not set aside the trial court's findings or judgment unless clearly erroneous, giving due regard to the trial court's ability to judge the credibility of witnesses. Steele-Giri v. Steele, 51 N.E.3d 119, 123 (Ind. 2016). Considering only the evidence most favorable to the judgment and all reasonable inferences derived therefrom, we will find clear error only where the evidence fails to support the findings, the findings fail to support the judgment, or the trial court applied the wrong legal standard to properly found facts. K.I. ex rel. J.I. v. J.H., 903 N.E.2d 453, 457 (Ind. 2009).
[¶19] On review, we keep in mind the preference in Indiana "for granting latitude and deference to our trial judges in family law matters." Steele-Giri, 51 N.E.3d at 124. It is not enough that the evidence might support a different conclusion; the evidence must positively require the conclusion contended for by the appellant. Id. Still, although we must be highly deferential to trial courts in cases such as this, that deference is not absolute. See Kirk v. Kirk, 770 N.E.2d 304, 307 n.5 (Ind. 2002) ("This is not to say that the circumstances of a custody or visitation case will never warrant reversal.").
Discussion &Decision
[¶20] In a custody dispute between a natural parent and a third party, there is an "important and strong presumption that a child's interests are best served by placement with the natural parent[.]" In re Guardianship of B.H., 770 N.E.2d 283, 287 (Ind. 2002). This presumption applies to custody modifications as well as initial custody determinations between a natural parent and a third party. K.I., 903 N.E.2d at 460.
[¶21] To overcome the parental presumption, a third party must establish by clear and convincing evidence that the child's "best interests are substantially and significantly served" by placement with the third party. Id. at 459. Though not an exhaustive list, evidence sufficient to overcome the presumption may include the parent's (1) present unfitness, (2) long acquiescence in the third party's custody, or (3) voluntary relinquishment/abandonment of the child "such that the affections of the child and third party have become so interwoven that to sever them would seriously mar and endanger the future happiness of the child." Id. (observing that while trial courts are not limited to considering these three factors from Hendrickson v. Binkley, 316 N.E.2d 376 (Ind.Ct.App. 1974), "such factors may provide guidance for trial courts in making custody determinations"); see also B.H., 770 N.E.2d at 287.
[¶22] Here, the trial court determined that the Hisses rebutted, by clear and convincing evidence, the presumption that Mother should have custody of her children. The court found in this regard: Mother voluntarily relinquished custody of the children to the Hisses after her period of incapacity by signing the May 2022 Agreements; Mother's long acquiescence to third-party custody had "increased the bond between the minor children and [the Hisses] such that a severing of that bond would seriously harm the current and future happiness of the children"; and the children have been in the Hisses' home since January 2021 and have become "significantly accustomed to their home, school, and community." Appellant's Appendix at 54.
The trial court also found that there had been "insufficient change in the statutory factors for modification from Mother's previous motion to modify custody and [the May 2022 Agreements] that custody should remain with [the Hisses]." Appellant's Appendix at 54. This appears to be in reference to Ind. Code § 31-17-2-21's requirement that Mother, as the party seeking modification, had the burden of showing a substantial change in at least one of the statutory best-interest factors. But as the Hisses recognize on appeal, our Supreme Court has made clear that when the moving party is a natural parent seeking to regain custody from a third-party, this "technical" burden "as a practical matter is no burden at all" or at most is "minimal." K.I., 903 N.E.2d at 460. The Hisses seem to concede that Mother met this minimal burden. Further, the trial court's grant of substantially more parenting time to Mother than ordered in 2022 - that is, a modification of the custody order - is inconsistent with the notion that Mother failed to establish a substantial change in the statutory factors.
[¶23] We agree with Mother that the trial court's findings of voluntary relinquishment and long acquiescence are clearly erroneous. It is undisputed that Mother was incapacitated at the time the Hisses gained third-party custody of the children in early 2021 and that she remained unable to regain custody throughout that year as she recovered from her stroke. Even still, as found by the trial court, Mother had "regular and increasing contact and parenting time with all four children" as her health allowed. Id. at 46. Then once Mother believed that she had recovered enough that she could care for the children, Mother filed her first pro-se motion in May 2022 seeking their return. Grandmother's guardianship of Mother was terminated at this same time.
[¶24] The Hisses contend that Mother voluntarily relinquished custody of the children when she signed the May 2022 Agreements, which resolved her motion to modify custody. But there was no relinquishing of custody by Mother, because the Hisses were the ones with custody at that time. Mother's ultimate intention remained reunification. The fact that she chose to avoid litigation and work amicably with her brother and his wife does not equate to voluntary relinquishment of custody. And the May 2022 Agreements provided Mother with greatly increased parenting time, during which she hoped to prove her capabilities to the Hisses.
[¶25] Within six months of entering into the May 2022 Agreements, Mother filed pro-se motions to regain custody of the children. She then retained an attorney and actively litigated to final judgment, all the while remaining involved in her children's lives and continuing to work on her own recovery. Mother neither voluntarily relinquished custody nor acquiesced for any significant period of time in the Hisses' custody of the children. See In re Guardianship of L.L., 745 N.E.2d 222, 231-32 (Ind.Ct.App. 2001) (holding that mother did not acquiesce in grandmother's continued guardianship of child where "beginning less than one year after the permanent guardianship was granted, [mother] sought to terminate the guardianship four separate times in five years"); cf. Hahn-Weisz v. Johnson, 189 N.E.3d 1136, 1146 (Ind.Ct.App. 2022) (reversing order that returned child to natural father and holding that parental presumption had been rebutted where father had minimal contact with child for several years, father acquiesced to grandmother's custody of child for well over two years, and child had experienced trauma years earlier when she was molested by her two halfbrothers in father's home).
The Hisses' suggestion that Mother voluntarily relinquished custody by entering into the mediated custody agreement in June 2023 is wholly without merit. Mother attempted to avoid mediation and go straight to a contested hearing, but the trial court granted the Hisses' request for mediation. The mediation resulted in a provisional agreement, which expanded Mother's parenting time while the litigation was pending and provided for a contested hearing if GAL Boyd's recommendation was not for Mother to regain custody.
[¶26] Even if Mother had long acquiesced to the Hisses having custody of the children, which she did not, the evidence does not support the trial court's finding that severing the bond between the Hisses and the children would seriously harm the current and future happiness of the children. As recognized by the trial court in its findings, Uncle testified that his "end goal" was still for the children to be returned to Mother's custody at some point. Transcript Vol. 3 at 56. Further, it was undisputed that the Girls had consistently expressed a desire to return to living with Mother full time, and GAL Boyd testified that "the kids are very comfortable with [Mother] and [Grandmother]." Id. at 69. In her report, GAL Boyd described her most-recent visit to Mother's home in late November 2023, noting that Son was "happy and familiar with [Mother]" and that the Girls were "comfortable and at home" and "content and happy." Appellant's Appendix at 151. GAL Boyd also noted in her report that Mother and the children have "a close and loving bond." Id. at 152.
Aunt also acknowledged the intended temporary nature of the custody arrangement. When asked whether removing the children from her custody would seriously endanger the children's happiness, Aunt responded, "Yes and no." Transcript Vol. 2 at 221. She explained simply that the children had "got[ten] used to doing what they are doing" and "are happy." Id. at 222.
[¶27] Ultimately, GAL Boyd's recommendation that the Hisses should retain primary physical custody was based only on her assessment that Mother was not yet capable of providing full-time care and support of the children. The trial court's findings of fact, however, belie the bases of this recommendation. For example, the court found that Mother manages her own medical care, contributes to household expenses (including car payments, car insurance, the children's school and clothing needs, utilities, and groceries), shares cooking and cleaning responsibilities with Grandmother, has a valid Indiana driver's license (with a restriction against highway/interstate driving), and owns an insured van large enough to accommodate the family. Although Grandmother helps with the children during Mother's parenting time, the court recognized in its findings that this was the arrangement before Mother's health issues too and that both Mother and Grandmother testified that Mother did not require Grandmother's assistance to care for the children. Most notably, the trial court's stated reasons for finding that the parental presumption had been rebutted did not include a finding that Mother was presently unfit to parent the children.
Even if Mother needed assistance from Grandmother at times, the evidence reveals that Grandmother was ready, willing, and able to help with the children.
[¶28] Finally, we address the trial court's finding that the children have been in the Hisses' home since January 2021 and have become significantly accustomed to their home, school, and community. This was listed by the trial court as a reason for abandoning the parental presumption. But standing alone, as it does now, this does not clear the high bar of establishing that the children's best interests are substantially and significantly served by keeping them in the custody of the Hisses, especially where Mother lives less than ten minutes away and the children have spent significant and increasing time in her home since early 2022. And, as noted above, the Girls have expressed their desire to return to Mother's care.
[¶29] Mother is a loving, involved parent who temporarily lost custody of her children due to a health emergency. She then worked tirelessly to get to a place where she could regain custody. When she sought the return of her children, the Hisses resisted, believing she was not yet ready to care for them full time on her own. GAL Boyd agreed with the Hisses and noted Mother's reliance on Grandmother. But as recognized by the trial court, it is not clear that GAL Boyd considered the parental presumption in her analysis of the children's best interests. The trial court ultimately did not make a specific finding that Mother was unfit, and we have found the trial court's other reasons for dispensing with the presumption to be clearly erroneous under the circumstances.
[¶30] Because the Hisses failed to prove by clear and convincing evidence that the children's best interests are substantially and significantly served by their continued custody, the children must be returned to Mother. See In re Guardianship of M.N.S., 23 N.E.3d 759, 766 (Ind.Ct.App. 2014) ("If the third party fails to carry this burden, then custody of the child must be modified in favor of the natural parent.").
[¶31] Reversed and remanded.
Bailey, J. and Mathias, J., concur.