Hicks v. Larson

884 N.E.2d 869, 2008 Ind. App. LEXIS 707, 2008 WL 961939
CourtIndiana Court of Appeals
DecidedApril 10, 2008
Docket26A01-0707-CV-302
StatusPublished
Cited by13 cases

This text of 884 N.E.2d 869 (Hicks v. Larson) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hicks v. Larson, 884 N.E.2d 869, 2008 Ind. App. LEXIS 707, 2008 WL 961939 (Ind. Ct. App. 2008).

Opinions

OPINION

MATHIAS, Judge.

Gary and Judy Larson filed in Gibson Circuit Court a petition for grandparent visitation. The Larsons (“Grandparents”) are the maternal grandparents of the children of James Hicks (“Father”). Father objected to Grandparents’ petition. The [872]*872trial court granted Grandparents’ petition for visitation. Father appeals and argues that his due process rights were violated when the court ordered grandparent visitation over his objection, and the evidence does not support the court’s finding that visitation is in the children’s best interests. We reverse and remand for proceedings consistent with this opinion.

Facts and Procedural History

Geri Hicks’s (“Mother”) and Father’s marriage resulted in two children. Mother was diagnosed with terminal cancer shortly after the birth of their second child, K.H. Because Father suffered a severe work-related injury at the same time Mother was undergoing chemotherapy, Mother and the children resided with Grandparents for a significant period of time prior to Mother’s death. Father continued to allow Grandparents to exercise regular visitation with the children after Mother’s death.

Father married Cortni Hicks (“Stepmother”) in June 2003, approximately one year after Mother’s death. Father’s relationship with Grandparents began to deteriorate at this time because Grandparents were upset about Father’s marriage. Moreover, Grandparents were unhappy with Father’s decision to place all photographs of Mother in photo albums, and with Father’s request that Grandparents not take the children to visit Mother’s grave or to a softball tournament held in her honor. Despite these disagreements, Father continued to allow Grandparents to have regular visitation with the children.

In January 2006, Stepmother overheard a conversation between K.H. and her cousin, in which K.H. stated that she watched Grandfather take a shower. Stepmother told K.H. not to go into the bathroom while Grandfather was showering. Father and Stepmother also learned that during overnight visitations, K.H. was sleeping with Grandfather in one bedroom while her sister was sleeping in another bedroom with Grandmother. Father informed Grandparents that he wanted the girls sleeping in a room together and Grandparents complied with that request.

On February 4, 2006, the children spent the night at Grandparents’ home. The next day, Stepmother observed four-year-old K.H. in her bed with her underwear and pants pulled down touching herself in what Stepmother felt was an inappropriate manner. Stepmother had observed K.H. engaging in this behavior previously, and finally asked K.H. why she continued to do it. K.H. replied, “Pawpaw says Mimi played with her pee pee when she was little. And I can too.” Tr. p. 75. K.H. then started shaking and said “No. Secret. Secret.” Id. at 75-76.

Father and Stepmother called the Department of Family and Children (“the DFC”) and case worker Ann Sulawske (“Sulawske”) met with K.H. on February 6, 2006. After her interview with K.H., Sulawske concluded that K.H. had been touched inappropriately and in a sexual manner by Grandfather. Appellant’s App. p. 151. The case was then referred to the Gibson County Sheriffs Department. Detective Deborah Borchelt (“Detective Bor-chelt”) also interviewed K.H. K.H. told the detective that Grandfather “put his hand on her pee pee inside her panties,” “that he moved his fingers up and down,” and that “it hurt and tickled.” Id. at 152. Detective Borchelt acknowledged that K.H.,’s statements were inconsistent. The Detective also interviewed KH.’s sister who stated that she “had seen [K.H.] lie on the bed and [Grandfather] would rub her private area on top of her gown.” Id. at 153.

Based on Sulawske’s and Detective Bor-chelt’s investigations, the DFC substantiated the claim of alleged molestation, Su-[873]*873lawske told Father and Stepmother that they “were not to allow the children to be in the presence of [Grandfather] since the claim had been substantiate^].” Appellant’s App. p. 151.

Upon completion of the molestation investigation, a Grand Jury was convened. In July 2006, the Grand Jury determined that there was not enough evidence to proceed with a criminal charge and it returned a No Bill against Grandfather. Father unsuccessfully sought to obtain a transcript of the grand jury proceedings.

On August 9, 2006, Grandparents filed a petition for visitation. After a hearing held on May 17, 2007, the trial court granted the petition. In its findings of fact and conclusions of law, the court found in part:

16. The evidence presented in this case establishes by clear and convincing evidence [that Grandfather] appropriately applied a cream or ointment medication upon the genital area of [K.H.] for treatment of a rash; that such conduct was not done knowingly or intentionally to arouse a sexual desire in [K.H.], approximately 4 years of age, the alleged victim or in himself to constitute a criminal action, a molestation or child abuse.

Appellant’s App. p. 11. Further, the court concluded:

2. The grandparents have had a meaningful contact with the children of [Father] and the late [Mother], The children had a meaningful relationship with [Grandparents] and the children enjoyed extensive visitation prior to the allege [sic] incident. Neither grandparent did any thing to legally harm the children.
3. It is in the best interest of [the children] to have a visitation relationship with [Grandparents].
4.The evidence is sufficient to rebut any presumption on behalf of the father[.]

Appellant’s App. p. 13. Finally, the court concluded that Grandparents would be irreparably harmed if they were not allowed visitation with the children. Father now appeals.1 Additional facts will be provided as necessary.

Standard of Review

“On review from a trial court’s order granting or denying grandparent visitation, we apply the familiar Ind. Trial Rule 52 standard, which provides that we may not set aside the findings or judgment unless clearly erroneous.” Megyese v. Woods, 808 N.E.2d 1208, 1213 (Ind.Ct.App.2004). First, we determine whether the evidence supports the findings and then whether the findings support the judgment. Id. “In deference to the trial court’s proximity to the issues, we disturb the judgment only where there is no evidence to support the findings or the findings fail to support the judgment.” Id. (citation omitted). We will not reweigh the evidence or the credibility of the witnesses. Id. Rather, we consider only the evidence most favorable to the trial court’s judgment, with all reasonable inferences drawn in favor of the judgment. Id.

Moreover, we note that “a trial court considering a request for grandparent visitation must enter findings addressing: 1) the presumption that a fit parent acts in his or her child’s best interests; 2) the special weight that must be given to a fit parent’s decision to deny or limit visitation; 3) whether the grandparent has established that visitation is in the child’s best interests; and 4) whether the parent [874]*874has denied visitation or has simply limited visitation.” In re Guardianship of J.E.M.,

Related

In Re: Grandparent Visitation of K.M., F.M. v. K.F.
42 N.E.3d 572 (Indiana Court of Appeals, 2015)
K.L. v. E.H.
Indiana Court of Appeals, 2014
Visitation of C.L.H. v. G.L.H.
908 N.E.2d 320 (Indiana Court of Appeals, 2009)
In Re Visitation of CLH
908 N.E.2d 320 (Indiana Court of Appeals, 2009)
Hicks v. Larson
884 N.E.2d 869 (Indiana Court of Appeals, 2008)

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884 N.E.2d 869, 2008 Ind. App. LEXIS 707, 2008 WL 961939, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hicks-v-larson-indctapp-2008.