In re the Guardianship of: A.E.S. Glen Scisney v. Saleem Adams and Tamara Adams (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: May 11, 2018
• Docket: 49A04-1708-GU-1923
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be May 11 2018, 8:31 am

regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEES Matthew C. Maples Pamela G. Grant-Taylor Hocker & Associates, LLC Law Office of Pamela Grant Indianapolis, Indiana Taylor Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In re the Guardianship of: A.E.S. May 11, 2018

Glen Scisney, Court of Appeals Case No. 49A04-1708-GU-1923 Appellant-Respondent, Appeal from the Marion Superior v. Court The Honorable Steven R. Saleem Adams and Tamara Eichholtz, Judge Adams, Trial Court Cause No. 49D08-1604-GU-11848 Appellees-Petitioners.

Brown, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A04-1708-GU-1923 | May 11, 2018 Page 1 of 10 [1] Glen Scisney appeals the trial court’s order naming Saleem and Tamara Adams

as the guardians of A.E.S. (“Child”). The trial court issued a similar order

naming the Adamses as the guardians of A.S.S. under cause number 49D08-

1604-GU-11850 (“Cause No. 850”). A.S.S. is the twin sibling of Child (Child

and A.S.S., together, the “Children”). We affirm the court’s appointment of

the Adamses as the guardians of Child under this cause, and we also issue a

memorandum decision today under cause number 49A02-1708-GU-1921

(“Cause No. 1921”) affirming the court’s appointment of the Adamses as the

guardians of A.S.S. in Cause No. 850.

Facts and Procedural History

[2] Child was born on January 27, 2016, to Kimberly Scisney (“Mother”). Mother

was overwhelmed with the idea of parenting the Children and approached the

Adamses, who attended the same church as Mother, as potential persons who

might adopt the Children. The Children were placed with the Adamses on

March 20, 2016, and Mother later signed a power of attorney and health

powers of attorney granting attorney-in-fact powers to the Adamses to act on

behalf of the Children. A short time later, Mother died as a result of an

automobile accident. On April 5, 2016, the Adamses filed a petition requesting

that the court appoint them as Child’s guardians and stating that Child had

been in their care since March 20, 2016, when Mother expressed her desire for

Child to live with them, and that both of Child’s parents had signed a power of

attorney on March 28, 2016. The court appointed a guardian ad litem (the

“GAL”), and the GAL filed a report with the court on June 20, 2016. The

Court of Appeals of Indiana | Memorandum Decision 49A04-1708-GU-1923 | May 11, 2018 Page 2 of 10 court issued an order stating that Scisney is the maternal grandfather of Child

and granting temporary guardianship of Child to the Adamses. On August 17,

2016, Scisney filed a motion to contest the appointment of guardianship, and

on August 25, 2016, he filed a counter-petition requesting that the court appoint

him as the permanent guardian of Child.

[3] On December 5, 2016, the court held a hearing at which it admitted into

evidence the GAL’s report and other documentary evidence and heard

testimony from Scisney, the Adamses, the GAL, and Devante Connor, the

putative father of the Children, among others. On June 13, 2017, the court

issued an order naming the Adamses as the guardians of Child. Scisney filed a

motion to correct error, which the trial court denied. Discussion

[4] The issue is whether the trial court abused its discretion in naming the Adamses

as guardians of Child. The trial court is vested with discretion in making

determinations as to the guardianship of an incapacitated person or minor. In

re Guardianship of A.L.C., 902 N.E.2d 343, 352 (Ind. Ct. App. 2009). This

discretion extends to both its findings and its order. Id. We apply the abuse of

discretion standard to review the trial court’s findings and order. Id. Because

the court set forth findings, we look to those findings to determine whether the

court abused its discretion. See id. The findings will not be set aside unless

clearly erroneous. Id. Findings are clearly erroneous when the record lacks any

facts or reasonable inferences to support them. Id. Further, we will not set

aside the judgment unless clearly erroneous. Id. A judgment is clearly

Court of Appeals of Indiana | Memorandum Decision 49A04-1708-GU-1923 | May 11, 2018 Page 3 of 10 erroneous when unsupported by the findings of fact and conclusions thereon.

Id.

[5] Scisney argues that the trial court’s findings are not supported by the evidence,

that he is the most suitable person to be named guardian of Child, and that it

would be in Child’s best interest that he be named guardian. The Adamses

maintain that the trial court did not err in naming them as the guardians of

Child under Ind. Code § 29-3-5-4, that the GAL’s report admitted into evidence

contained the power of attorney executed by Mother and Connor, and that

Scisney’s argument is a request to reweigh the evidence and reassess the

credibility of witnesses.

[6] The guardianship statutes provide for the appointment of guardians for minors.

See Ind. Code § 29-3-5-1. Ind. Code §§ 29-3-5 set forth proceedings for the

appointment of a guardian, and Ind. Code § 29-3-5-3 provides that, if it is

alleged and the court finds that the individual for whom the guardian is sought

is an incapacitated person or a minor, and the appointment of a guardian is

necessary as a means of providing care and supervision of the physical person

or property of the incapacitated person or minor, the court shall appoint a

guardian under the chapter.

[7] At the time of the December 2016 hearing, Ind. Code § 29-3-5-4 provided:

The court shall appoint as guardian a qualified person or persons most suitable and willing to serve, having due regard to the following:

Court of Appeals of Indiana | Memorandum Decision 49A04-1708-GU-1923 | May 11, 2018 Page 4 of 10 (1) Any request made by a person alleged to be an incapacitated person, including designations in a durable power of attorney under IC 30-5-3-4(a).

(2) Any request contained in a will or other written instrument.

(3) A designation of a standby guardian under IC 29-3- 3-7.

(4) Any request made by a minor who is at least fourteen (14) years of age.

(5) Any request made by the spouse of the alleged incapacitated person.

(6) The relationship of the proposed guardian to the individual for whom guardianship is sought.

(7) Any person acting for the incapacitated person under a durable power of attorney.

(8) The best interest of the incapacitated person or minor and the property of the incapacitated person or minor.

(Subsequently amended by Pub. L. No. 194-2017, § 7 (eff. Jul. 1, 2017)).1

[8] Ind. Code § 29-3-5-5 provided:

1 The 2017 amendment inserted a new subsection (2) and redesignated former subsections (2) to (8) as subsections (3) to (9). The new subsection (2) provides: “(2) Any request made for a minor by: (A) a parent of the minor; or (B) a de facto custodian of the minor, including a designation in a power of attorney under IC 30-5-3-4(b) or IC 30-5-3-4(c).”

Court of Appeals of Indiana | Memorandum Decision 49A04-1708-GU-1923 | May 11, 2018 Page 5 of 10 (a) The following are entitled to consideration for appointment as a guardian under section 4 of this chapter in the order listed:

(1) A person designated in a durable power of attorney.

(2) A person designated as a standby guardian under IC 29-3-3-7.

(3) The spouse of an incapacitated person.

(4) An adult child of an incapacitated person.

(5) A parent of an incapacitated person, or a person nominated by will of a deceased parent of an incapacitated person or by any writing signed by a parent of an incapacitated person and attested to by at least two (2) witnesses.

(6) Any person related to an incapacitated person by blood or marriage with whom the incapacitated person has resided for more than six (6) months before the filing of the petition.

(7) A person nominated by the incapacitated person who is caring for or paying for the care of the incapacitated person.

(b) With respect to persons having equal priority, the court shall select the person it considers best qualified to serve as guardian. The court, acting in the best interest of the incapacitated person or minor, may pass over a person having priority and appoint a person having a lower priority or no priority under this section.

(Subsequently amended by Pub. L. No. 194-2017, § 8 (eff. Jul. 1, 2017)).

Court of Appeals of Indiana | Memorandum Decision 49A04-1708-GU-1923 | May 11, 2018 Page 6 of 10 [9] Pursuant to Ind. Code § 29-3-5-4, the court must give due regard to the best

interest of a minor and, acting in the best interest of the minor, may pass over a

person having priority and appoint a person having a lower priority or no

priority under Ind. Code § 29-3-5-5. In re Guardianship of A.L.C., 902 N.E.2d at

353. The key consideration, in essence, in selecting a guardian for Child is

whether the choice of guardian is in Child’s best interest. See id.

[10] As we observe in our memorandum decision in Cause No. 1921, to the extent

Scisney contests the trial court’s findings in paragraphs 7, 8, 14 and 18 of its

June 13, 2017 order, we observe that Tamara testified that the Children had

come into her care and custody on March 20, 2016, and that Mother had

contacted her and Saleem shortly after the Children were born. The GAL’s

report indicated that Mother was overwhelmed with the idea of single

parenthood prior to the birth of the Children, that she attended the same church

as the Adamses, and that she had approached the Adamses as potential persons

who might adopt the Children. The GAL’s report stated that “the Adams[es]

requested that they be given power of attorney for the children and health

power of attorney” and “[t]hey received and kept the executed documents

(which were also signed by the putative father, despite his legal claim as a

father/parent being tenuous, if not nonexistent), and the GAL reviewed these

during the home visit.” Guardian Ad Litem Exhibit I at 5. The GAL’s report

included attached executed documents including a power of attorney and

Court of Appeals of Indiana | Memorandum Decision 49A04-1708-GU-1923 | May 11, 2018 Page 7 of 10 health powers of attorney dated in March 2016 and signed by Mother which

granted attorney-in-fact powers to the Adamses to act on behalf of Child.2

[11] The court heard testimony regarding when the Children were placed in the care

of the Adamses and the employment of the Adamses. According to the GAL’s

report, Roberta Edwards, the Children’s maternal grandmother, stated that she

was of the opinion that Scisney had been verbally abusive to Mother, she had

observed Mother crying and upset after speaking with Scisney on the phone a

few times, and Mother had unequivocally expressed a desire for the Adamses to

have and hopefully adopt the Children. Crista Spiller, Mother’s cousin,

reported that Mother “had stated to her that [Scisney] was the very last person

on earth that she would want to have her children” and that Scisney “had told

[Mother] he would disown her if she ever got pregnant, and that he did in fact

do so when he found out.” Id. at 10. Scisney reported that he had counseled

his daughter not to become pregnant out of wedlock and having such

“bastards” would be wrong and greatly disappoint him, that Mother would

become upset at this fatherly advice, and that in no way was the interaction

ever abusive or less than fatherly or loving. Id. at 12. The report indicated that

it was widely acknowledged that Mother desired that the Children be placed

with the Adamses. We cannot say that the record lacks any facts or reasonable

2 The Power of Attorney for Child instrument was also signed by Connor.

Court of Appeals of Indiana | Memorandum Decision 49A04-1708-GU-1923 | May 11, 2018 Page 8 of 10 inferences to support the court’s findings in paragraphs 7, 8, 14 and 18 of its

order.

[12] In addition, as we observe in our memorandum decision in Cause No. 1921,

the record reveals that the court admitted evidence and testimony related to the

suitability of the Adamses and Scisney as guardians and the considerations set

forth in Ind. Code §§ 29-3-5-4 and -5. The court admitted evidence regarding

the parties’ financial resources, their employment and earnings, the Adamses’

care of the Children, the health histories of the Children, the history and

stability of the parties’ housing, the fact the Adamses obtained money from Go

Fund Me funds established to solicit donations for the Children and Mother,

the reports regarding Mother’s relationship with Scisney and her desire for the

Children to be placed with the Adamses, and the Power of Attorney for Child

executed by Mother and Connor in favor of the Adamses with respect to the

care of Child. The court was able to consider the evidence, including the

evidence of the parties’ resources and Mother’s wishes, in exercising its

discretion in determining the most suitable persons to be appointed as guardians

of Child. Scisney has not shown that the court’s findings are not supported by

the record or that its judgment is not supported by its findings.

[13] Based upon the evidence and testimony presented at the December 5, 2016

hearing, we are unable to conclude that the trial court abused its discretion in

appointing the Adamses as guardians of Child.

Court of Appeals of Indiana | Memorandum Decision 49A04-1708-GU-1923 | May 11, 2018 Page 9 of 10 Conclusion

[14] For the foregoing reasons, we affirm the order of the trial court naming the

Adamses as guardians of Child.

[15] Affirmed.

Bailey, J., and Crone, J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A04-1708-GU-1923 | May 11, 2018 Page 10 of 10