In Re the Guardianship of A.L.C.

902 N.E.2d 343, 2009 Ind. App. LEXIS 398, 2009 WL 653039
CourtIndiana Court of Appeals
DecidedMarch 12, 2009
Docket73A04-0805-CV-264
StatusPublished
Cited by19 cases

This text of 902 N.E.2d 343 (In Re the Guardianship of A.L.C.) 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
In Re the Guardianship of A.L.C., 902 N.E.2d 343, 2009 Ind. App. LEXIS 398, 2009 WL 653039 (Ind. Ct. App. 2009).

Opinions

OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

Intervenors Kim and Karen Conover (collectively "the Conovers"), Kent and Brenda Smith (collectively "the Smiths"), and Bradley J. and Jacqueline Jones ("the Joneses") are all grandparents of the minor A.L.C. In the proceedings below, the Smiths and Brad Jones ("Jones") on the one hand and the Conovers on the other hand sought guardianship over the person and estate of A.L.C. The Conovers now appeal from the trial court's orders granting temporary and permanent guardianship A.L.C. to the Smiths and Jones. The Conovers present the following issues for review:

1. Whether the trial court abused its discretion when it awarded temporary guardianship of A.L.C. to Brad and Jacqueline Jones (collectively "the Joneses") and subsequently to the Smiths.
2. Whether the trial court abused its discretion when it appointed permanent guardianship over the person of A.L.C. to the Smiths and over the estate of A.L.C. to the Smiths and Brad Jones.

On eross-appeal, the Smiths and Brad Jones present a single issue for review, namely, whether the trial court's visitation award to the Conovers was an abuse of discretion.

[346]*346We affirm in part, reverse in part, and remand with instructions.

FACTS AND PROCEDURAL HISTORY

On August 27, 2005, Natalie Jones ("Mother") gave birth to a son, A.L.C. Mother was unmarried at the time, but the following day Dustin Conover ("Father") and Mother executed a joint paternity affidavit. Mother was addicted to alcohol, and Father had a eriminal record and used illegal drugs. Mother and Father lived in a home purchased by Father's parents, the Conovers. In addition to buying the house for Mother and Father, the Conovers also provided the couple .with money and watched AL.C. Brenda Smith, Mother's mother, and Shirley Sider, mother's grandmother, also provided childeare for AL.C. at times.

On May 28, 2007, Mother was killed in a single-car accident. At the time, the Con-overs were watching A.L.C. for Mother. On May 25, Brenda Smith picked up A.L.C. from the Conovers' home and took him to the home of the Joneses, Mother's father and stepmother. The Joneses then filed an Emergency Petition for the Appointment of Temporary Guardians over the Person and Estate of a Minor Child ("Emergency Petition"). The court sent notice of the petition to Father, the Joneses, the Smiths, and the Conovers via certified mail. In the petition the Joneses stated that they were unaware of any adjudication of paternity. As a result, the petition listed only the Joneses and the Smiths as persons most closely related by blood to A.L.C. The Joneses and the Smiths waived a hearing, and the court granted the petition, awarding temporary guardianship of A.L.C. to the Joneses.

On June 5, Father filed his verified petition for appointment of guardian ad litem and counsel for A.L.C. pursuant to Indiana Code Section 29-3-2-3. Father attached the joint paternity affidavit as an exhibit. He also filed a petition for parenting time and request for a hearing. On June 12, Brad Jones and Brenda Smith filed an Amended Emergency Petition for Appoint, ment of Temporary Co-Guardians Over the Person and Estate of a Minor Child ("Amended Emergency Petition"). The following day, the Joneses filed a motion for testing to determine illegal drug use by Father and a motion for genetic marker testing to establish paternity. And on June 21, Brad Jones and the Smiths filed a petition for the appointment of the Smiths as permanent guardians over the person of ALC. and the Smiths and Brad Jones over the estate of A.L.C. The Smiths and Brad Jones also filed a verified petition for the appointment of a guardian ad litem.

On July 5, the court held a hearing on "outstanding issues[.]" Appellants' App. at 4. At that hearing, Father testified that the Smiths should be A.L.C.'s guardian if he were to test positive for drugs. After taking evidence, the court recessed and continued the hearing to August 1. Before adjourning, the court found "more than sufficient evidence to continue" the temporary guardianship as originally ordered. Transcript at 128. But, by agreement of the Joneses, the Smiths, and Father, the court appointed the Smiths to be temporary guardians over the person of A.L.C. and appointed the Smiths and Brad Jones as temporary guardians over the estate of ALC.1 The court also ordered a hair follicle drug sereen for Father, appointed a guardian ad litem for A.L.C., directed visi[347]*347tation for Father, and ordered a paternity test.

On August 8, the Smiths and/or the Joneses 2 filed a motion to modify visitation to be supervised by a third party. On August 14, the Conovers filed a motion to intervene, a notice of intention to seek appointment as co-guardians, a verified petition for custody/parenting time evaluation, and a motion to vacate the CASA appointment and home study. And in late September, Father withdrew his bid for custody of A.L.C.

On December 13, 2007, the Conovers filed a petition for the removal of co-guardians along with Father's Nomination of Kim and Karen Conover to be guardians. On that same date, the court heard additional evidence regarding permanent guardianship. The court resumed that hearing on February 26, 2008. The court heard evidence on the competing petitions for permanent guardianship and on the Conovers' petition to remove co-guardians. At the conclusion of the hearing, the court denied the Conovers' petition to remove co-guardians and ordered the parties to submit proposed findings of fact and conclusions thereon.

On April 3, 2008, the court entered its findings of fact and conclusions ("Findings") thereon regarding permanent guardianship, in part as fellows:

3. [Father] is not requesting physical custody of [A.L.C.]
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7. On July 5, 2007, [Father], the Joneses and the Smiths agreed that the Smiths should serve as temporary guardians over the person of [A.L.C.] and that the Smiths and Bradley Jones should serve as temporary guardians over the estate of [A.L.C.], which agreement was approved by this Court. Bradley Jones and the Smiths have served as guardians, in this capacity, 'since July 5, 2007. The Conovers did not intervene as parties in this matter until August 15, 2007.
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9. For several years prior to [A.L.C.'s] birth and until [Mother's] death, [Father] and [Mother] abused drugs and alcohol. [Father] has continued to use illegal substances and violate the law during the pendency of these proceedings.
10. This Court finds that it is in [A.L.C.'s] best interests that [A.L.C.] has parenting time with [Father], which should be supervised until further order of this Court. It is this Court's hope that [Father] will make the changes in his behavior that are necessary for him to become a responsible and effective parent.
11. [Father] testified only at the hearing on July 5, 2007. Among other things he stated:
a. That if he tested positive for drugs, then he believed Brenda and Kent Smith should eare for [A.L.C.] A hair follicle drug test ordered by the Court upon samples submitted by [Father] on July 9, 2007, was positive for cocaine and marijuana.
b.

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In Re the Guardianship of A.L.C.
902 N.E.2d 343 (Indiana Court of Appeals, 2009)

Cite This Page — Counsel Stack

Bluebook (online)
902 N.E.2d 343, 2009 Ind. App. LEXIS 398, 2009 WL 653039, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-guardianship-of-alc-indctapp-2009.