Opinion
No. 33A01-1102-GU-79
08-05-2011
IN THE MATTER OF THE GUARDIANSHIP OF L.W. S.M., Appellant, v. M.W. and S.W., Appellees.
ATTORNEY FOR APPELLANT: ANTHONY J. SAUNDERS New Castle, Indiana ATTORNEY FOR APPELLEES: JOEL E. HARVEY Hayes Copenhaver Crider, LLP New Castle, Indiana
Pursuant to Ind.Appellate Rule 65 (D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT:
ANTHONY J. SAUNDERS
New Castle, Indiana
ATTORNEY FOR APPELLEES:
JOEL E. HARVEY
Hayes Copenhaver Crider, LLP
New Castle, Indiana
APPEAL FROM THE HENRY SUPERIOR COURT
The Honorable Michael D. Peyton, Judge
Cause No. 33D01-0701-GU-0003
MATHIAS , Judge
S.M. ("Mother") challenges the Henry Superior Court's denial of her petition to terminate M.W.'s ("Grandfather") and S.W.'s ("Grandmother") (collectively "the Grandparents") guardianship over Mother's son, L.W. On appeal, Mother claims that the trial court abused its discretion in determining that L.W.'s best interests are substantially and significantly served by continuation of the guardianship.
We affirm.
Facts and Procedural History
L.W. was born in April of 2003 to I.W. ("Father") and Mother. In October 2006, Father asked the Grandparents, who are his parents, to come and pick up L.W. because Mother had cursed at then three-year-old L.W. and struck him with a hairbrush. At this time, Mother and Father's marital relationship was deteriorating. The Grandparents picked up L.W. from Mother and Father's home in Indianapolis and brought him back to their home in rural Henry County. L.W. has resided with his grandparents at their home ever since. In January 2007, the Grandparents were appointed as L.W.'s guardians, with the consent of both Mother and Father.
Both Mother and Father were "recreational" drug users, and Mother had been diagnosed with bi-polar disorder. Mother also suffers from anxiety and depression issues and received disability benefits based upon her mental heath issues. Father too received disability benefits based on his mental health issues, which include depression and post-traumatic stress disorder.
The Grandparents provided L.W. with a supportive and stable environment. Grandfather is a college professor and Grandmother is a science teacher, and they have lived at their home for over thirty years. When L.W. began to attend kindergarten at the local elementary school, he had behavioral problems and was unable to sit still and focus. The Grandparents therefore took L.W. to a counselor to help him with his behavioral issues. The counselor talked with school officials about L.W., and the school developed an individual education plan ("IEP") to address L.W.'s issues. As a result, L.W.'s behavior improved. By the end of first grade, L.W. even made the honor roll. In addition, L.W. became active in extra-curricular activities such as swimming and t-ball at the local YMCA. He also has several pets at the Grandparents' home.
After her divorce from Father, Mother remarried and had another child. Although Mother is unemployed, her current husband works for the State of Indiana in Indianapolis. Mother and her new family live in Indianapolis, and if L.W. resided with Mother, he would attend Washington Township schools.
During the Guardianship, both Mother and Father have regularly exercised parenting time with L.W., with L.W. spending extensive time with both of his parents during the summer. Mother and Father, however, still have a contentious relationship, which has been reported as "hating" each other. As a result of their acrimonious relationship, Mother and Father are unable to agree on a plan of care for their son. Neither Mother nor Father has provided any financial support for L.W. during the guardianship, apart from providing for him during their respective parenting time. Mother was not terribly involved with L.W.'s education, but she did attend a school Christmas program and spoke with one of L.W.'s teacher's on one occasion.
On October 19, 2009, Mother filed a petition to terminate the Grandparents' guardianship over L.W. After mediation was unable to resolve all of the parties' differences, the trial court held a hearing on Mother's petition on June 15, 2010. On January 19, 2011, the trial court entered an order denying Mother's petition to terminate the guardianship, concluding that the Grandparents had overcome the presumption that L.W. should be placed with a natural parent by clear and convincing evidence and that the best interests of the L.W. were significantly and substantially served by continuing placement with the Grandparents. Mother now appeals.
Standard of Review
Child custody determinations fall squarely within the discretion of the trial court and will not be disturbed except for an abuse of discretion. In re Guardianship of B.H., 770 N.E.2d 283, 288 (Ind. 2002). We will reverse the trial court's decision only if it is against the logic and effect of the facts and circumstances before the court or the reasonable inferences drawn therefrom. Id. In deference to the trial court's proximity to the issues, we disturb the trial court' judgment only where there is no evidence to supporting the findings or the findings fail to support the judgment. Id. at 287. We do not reweigh the evidence, but consider only the evidence favorable to the trial court's judgment. Id. at 288. Thus, a challenger labors under a heavy burden, and must show that the trial court's findings are clearly erroneous. Id. In reviewing a judgment requiring proof by clear and convincing evidence, "an appellate court may not impose its own view as to whether the evidence is clear and convincing but must determine, by considering only the probative evidence and reasonable inferences supporting the judgment and without weighing evidence or assessing witness credibility, whether a reasonable trier of fact could conclude that the judgment was established by clear and convincing evidence." Id.
Discussion and Decision
There is an important and strong presumption that a child's best interests are ordinarily served by placement in the custody of the natural parent. Id. at 287. This presumption provides "a measure of protection for the rights of the natural parent, but, more importantly, it embodies innumerable social, psychological, cultural, and biological considerations that significantly benefit the child and serve the child's best interests." Id. Before placing a child in the custody of a person other than the natural parent, the trial court must be satisfied by clear and convincing evidence that the best interests of the child require such a placement. Id. The trial court must be convinced that placement with a person other than the natural parent represents a "substantial and significant advantage to the child," not simply that the third party could provide "'the better things in life for the child.'" Id. Evidence establishing the natural parent's unfitness or acquiescence, or demonstrating that a strong emotional bond has formed between the child and the third person, are important, but the trial court is not limited to these criteria. Id. The issue is not merely the "fault" of the natural parent; instead, the issue is whether "the important and strong presumption that a child's interests are best served by placement with the natural parent is clearly and convincingly overcome by evidence proving that the child's best interests are substantially and significantly served by placement with another person." Id. Of course, this determination falls within the sound discretion of the trial court, whose judgment must be afforded deferential review. Id. A generalized finding that a placement other than with the natural parent is in a child's best interests is adequate to support such determination, and detailed and specific findings are required. Id.
Although in a technical sense, a natural parent seeking to modify custody has the burden of establishing the statutory requirements for modification by showing modification is in the child's best interest, and that there has been a substantial change in one or more of the enumerated factors, as a practical matter this is no burden at all. K.I. ex rel. J.I. v. J.H., 903 N.E.2d 453, 460 (Ind. 2009). "More precisely, the burden is minimal." Id. Once the natural parent meets this minimal burden, "the third party must prove by clear and convincing evidence 'that the child's best interests are substantially and significantly served by placement with another person.'" Id. at 460-61 (quoting B.H., 770 N.E.2d at 287). If the third party carries this burden, then custody of the child remains in the third party. Otherwise, custody must be modified in favor of the natural parent. Id.
In the present case, Mother claims that the trial court abused its discretion in concluding that the presumption in favor of placement with a natural parent was clearly and convincingly overcome by evidence proving that L.W.'s best interests were substantially and significantly served by placement with the Grandparents. Mother claims that any concerns for L.W.'s educational needs are unfounded and cannot support the trial court's judgment. Specifically, Mother claims that there was no evidence that L.W.'s educational needs would be harmed by moving him to the Metropolitan School District of Washington Township in Indianapolis. However, there was evidence that L.W. was doing quite well in his current elementary school. After initially struggling with his attention problems in kindergarten, the Grandparents took L.W. to a counselor, and the school set up an IEP for L.W. At the end of first grade, L.W. had even made the honor roll. The trial court found that the teachers at L.W.'s current school "appear to go out of their way to help the child." Appellant's App. p. 21. We cannot fault the trial court for its hesitation to remove L.W. from this educational environment.
Mother also claims that the trial court's ruling effectively deprives her of her right to live and send L.W. to the school she so desires. Mother claims that, if she lived in the school district where L.W. currently attends school, then the trial court would have terminated the guardianship. This contention overlooks the other evidence favoring the trial court's decision. The trial court's concern over sending L.W. to a larger school where he might not receive the same level of attention obviously played a large role in the trial court's decision, but it was not the only factor. For example, the trial court was also concerned with Mother's level of involvement with L.W.'s education. In this regard, Mother argues that the trial court's findings regarding her limited involvement in L.W.'s education is contrary to her testimony. Obviously, however, the trial court simply did not credit Mother's testimony. Mother's current argument is simply a request that we judge the credibility of a witness, which we will not do.
Mother also claims that there was no evidence that termination of the guardianship would be either a physical or emotional threat to L.W. The fact that she and Father cannot get along, Mother claims, is insufficient to support the trial court's decision. We note, however, that the trial court heard evidence that both parents had anger management problems. Indeed, there was evidence that when L.W. was only three years old, Mother struck the child with a hairbrush and cursed at him. Moreover, there was ample evidence that both parents have significant mental health problems. Father suffers from severe depression and post-traumatic stress disorder, and has received disability benefits as a result. There was also evidence that Mother has been treated for bi-polar disorder and has also received disability benefits as a result of her mental health issues. Both parents still have trouble communicating with each other and are unable to agree with regard to L.W.'s care. These facts and circumstances support the trial court's decision to deny Mother's petition to terminate the guardianship.
The trial court was within its discretion to discredit Mother's claim that the doctor who diagnosed her with bi-polar disorder was "unscrupulous." Tr. p. 61.
Mother further contends that the trial court's ruling sets a dangerous precedent in favoring a rural or small-town environment over her more urban home. However, we do not read the trial court's order as favoring a rural or small-town lifestyle over an urban one. Instead, the trial court simply noted that L.W. was thriving in his current environment, which happens to be more rural. In addition to doing well in school, L.W. is involved in athletic activities at the local YMCA, has friends in the area, and has several pets at the Grandparents' home. The trial court concluded that taking L.W. from this lifestyle and putting him in a larger school in a community where he would have fewer ties and support is in L.W.'s best interests. We cannot say that the trial court abused its discretion in this regard.
Mother cites Allen v. Proksch, 832 N.E.2d 1080 (Ind. Ct. App. 2005), in support of her argument that the trial court abused its discretion. In that case, the natural father appealed the trial court's order granting legal and physical custody of his son to the child's maternal grandmother. This court affirmed the trial court's custody order, noting that the father had only sporadically visited his son, and had almost completely abandoned him from 2001 to 2003 and made minimal effort to contact his son. Id. at 1101. Further, there were allegations that the father had hit the child, and that the child had special emotional and behavioral needs and needed to be in a stable environment. Id. And the evidence in that case showed that the maternal grandmother had the ability to provide such stability, was involved in the child's mental health treatment and school activities. Id. Moreover, the child was attached to and desired to stay with his grandmother. Id.
Mother claims that here, in contrast to Allen, there was no evidence that she similarly abandoned L.W. or that L.W. suffers from severe emotional problems that would justify placement with a non-parent. We disagree. Although the facts of the present case might not be as strongly supportive of placement with a non-parent as were the facts in Allen, Mother and Father both have mental health issues and are unable to effectively communicate with regard to their son's care. Both have anger management problems, with evidence that Mother has struck her son in the past. Moreover, L.W. is overcoming his attention problem and doing well in his current educational environment. The Grandparents are actively involved in L.W.'s education and have taken L.W. to a counselor. L.W. is doing well in this stable, supportive environment, and the trial court's decision to not terminate the guardianship was not an abuse of its broad discretion. Especially in family law matters, we must give wide latitude and deference to trial court judges because:
[W]e are in a poor position to look at a cold transcript of the record, and conclude that the trial judge, who saw the witnesses, observed their demeanor, and scrutinized their testimony as it came from the witness stand, did not properly understand the significance of the evidence, or that he should have found its preponderance or the inferences therefrom to be different from what he did.Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002); accord Allen, 832 N.E.2d at 1102. The question is not whether we think the judgment was established by clear and convincing evidence, but whether a reasonable trier of fact could conclude that the judgment was established by clear and convincing evidence. B.H., 770 N.E.2d at 288. And here, we are unable to say that no reasonable trier of fact could have come to the same conclusion as the trial court. We are therefore bound by the applicable standard of review to affirm the judgment of the trial court.
Affirmed.
KIRSCH, J., and VAIDIK, J., concur.