MEMORANDUM DECISION Apr 28 2015, 6:43 am 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 ATTORNEY FOR APPELLEES Christopher C. Crawford Lisa Gilkey Schoetzow Elkhart, Indiana Thorne Grodnik, LLP Elkhart, Indiana
IN THE COURT OF APPEALS OF INDIANA
In re the Guardianship of M.M. April 28, 2015 et al Court of Appeals Case No. 20A05-1409-GU-441 Melissa Miller, Appeal from the Elkhart Superior Appellant, Court The Honorable Evan S. Roberts, v. Judge Trial Court Cause No. FaithAnn Breden and Richard 20D01-1005-GU-39 Breden, Appellees.
Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A05-1409-GU-441 | April 28, 2015 Page 1 of 13 Case Summary and Issues [1] Melissa Miller (“Mother”) is the mother of two children, M.M., born in 2006,
and J.M., born in 2008. In 2010, a guardianship was established over the
children and they were placed in the custody of the guardians, Richard Breden
and FaithAnn Breden (collectively referred to as “Guardians”). In 2012, the
children were returned to Mother’s custody but the guardianship remained
open. Ultimately, M.M. was returned by agreement to the custody of
Guardians while J.M. remained in Mother’s custody. In 2014, Mother was
found in contempt on a motion for rule to show cause filed by Guardians. At a
review hearing on that contempt finding, the trial court ordered that J.M. be
immediately placed in the temporary custody of Guardians and set an
evidentiary hearing for full consideration of a change of custody.
[2] Mother appeals the temporary change of custody, raising two issues for our
review: 1) whether her due process rights were violated when the trial court
immediately removed J.M. from her custody and did not set an evidentiary
hearing for approximately three months in the future, and 2) whether the trial
court abused its discretion in temporarily changing custody of J.M. Concluding
Mother’s due process rights were not violated and the trial court did not abuse
its discretion in entering a temporary change of custody order, we affirm.
Court of Appeals of Indiana | Memorandum Decision 20A05-1409-GU-441 | April 28, 2015 Page 2 of 13 Facts and Procedural History [3] The facts as we are able to glean them from the Chronological Case Summary
(“CCS”) and the transcript of the review hearing 1 are these: Richard Breden is
Mother’s father, and FaithAnn Breden is his wife. The Bredens were appointed
guardians of J.M. and M.M. in 2010 in conjunction with Mother’s pending
divorce from the children’s father.2 Mother and Guardians have a contentious
relationship which has resulted in multiple appearances in court since the
guardianship was established. At the review hearing, the trial court
summarized the state of the case as follows:
So we have two children with one being with [Guardians] and one being with [Mother]. We’ve had very little success over the years with cooperative exchanges for parenting time, we’ve had transportation issues, we’ve had 19 pages of chronological case summary here, and it’s clear to me that very few people seem to be listening and following court orders. . . . I’ll also note for the record that I don’t seem to be making any headway towards getting the case resolved, stopping the fighting, which is commonly associated with this case. There needs to be a stop. Transcript at 24-25.
[4] On June 5, 2014, Guardians filed a verified motion for rule to show cause
against Mother. Neither that motion nor the order ruling on it are included in
1 Mother’s Appendix includes only the CCS, the trial court’s order being appealed, a guardian ad litem’s report that was submitted to the trial court in advance of the hearing, and excerpts from the transcript of the review hearing. This makes it difficult to gain a full picture of these proceedings which began in 2010. Further, Indiana Appellate Rule 50(F) states that “parties should not reproduce any portion of the Transcript in the Appendix” because the transcript is transmitted to the court in full from the trial court clerk. 2 The children’s father is now deceased.
Court of Appeals of Indiana | Memorandum Decision 20A05-1409-GU-441 | April 28, 2015 Page 3 of 13 the record, but from the information contained in the CCS, it appears that the
motion alleged Mother was not in compliance with court orders regarding
parenting time. On June 16, 2014, Mother filed a notice of intent to relocate to
Florida. At a June 23, 2014, hearing on the motion for rule to show cause,
Guardians filed an objection to Mother’s notice of relocation and a request to
modify child custody and parenting time.3 The trial court found Mother in
contempt and sentenced her to fifteen days at the county jail, with jail time
suspended pending a review hearing regarding her compliance with court
orders. In addition, the trial court ordered that no party was to relocate and
neither minor child was to be removed from the county pending further order of
the court. Finally, the trial court admonished the parties “that there are to be
no discussions concerning this matter with the children and they are prohibited
from making disparaging comments about one another. Parties are further
admonished to fully comply with all Court orders.” Appellant’s App. at 10. A
review hearing was scheduled for August 18, 2014.
[5] The children’s Guardian ad Litem (“GAL”) filed a report with the court in
advance of the August 18, 2014 review hearing. The GAL noted several recent
incidents reported by Guardians that reflected poorly on Mother. The GAL
also noted that Mother has historically been unable or unwilling to hold a job or
independently maintain stable housing for herself and her children and
3 The request to modify custody also does not appear in the record, but from context, it appears it was a request to change the custody of J.M. from Mother to Guardians.
Court of Appeals of Indiana | Memorandum Decision 20A05-1409-GU-441 | April 28, 2015 Page 4 of 13 “continues to make very poor parenting choices . . . . She will not provide a
stable home for herself and her sons and continues to make poor choices
regarding who she allows into her life.” Appellant’s App. at 23. Accordingly,
the GAL recommended that Guardians
retain permanent guardianship of [M.M.]. [J.M.] should also be placed in their home and they should have permanent guardianship of him also. [Mother] should have supervised parenting time . . . and a No Contact order should be put in place so she cannot disrupt the [Guardians’] home . . . . [Mother] needs to get and maintain full time employment and get a home of her own before any extended parenting time will take place. Id.
[6] Mother and Guardians each appeared by counsel at the review hearing. The
GAL was also present. The trial court noted at the outset of the review hearing
that it had received and reviewed the GAL’s report. The parties’ positions were
summarized by their counsel, and no testimony was taken. Guardians
requested that the trial court adopt the GAL’s recommendation and place J.M.
in their custody. Mother provided information from J.M.’s school about her
involvement there, asserted that she had obtained a job that she was to start that
evening, and argued that Guardians’ home had its share of drawbacks as well.
Although her counsel asserted there was no emergency which would necessitate
a change in custody without an evidentiary hearing, he also acknowledged that
“[t]here is never going to be [a] situation in this case where anything is ever
Court of Appeals of Indiana | Memorandum Decision 20A05-1409-GU-441 | April 28, 2015 Page 5 of 13 going to change in regards to this matter.”4 Tr. at 8. The GAL reiterated her
concerns that Mother has not been able to maintain stable employment in the
past and wondered how long her new job would last. The GAL noted that
Mother
continues to live off the grace and favor of other people. That does not make a stable home for a child. . . . [J.M.] is being moved from place to place to place. . . . I want to see [Mother] be able to provide a home for herself and the boys, to be able to meet their needs, medically, food, clothing, shelter. That’s not possible at this point. . . . I’m very concerned about [J.M.] He needs stability. I don’t know how else to give that to him at this point. Tr. at 14-15.
[7] At the conclusion of the hearing, the trial court noted that it was “quite familiar
with the case, I read what’s filed with the court so I have a pretty good idea
what’s going on here. . . . This is going to stop and today is that day.” Tr. at 28.
Accordingly, the trial court found Mother was entitled to an evidentiary hearing
and set one for November 21, 2014. “However, as a temporary order what
we’re going to do today is the following: Effective immediately, [J.M.] will be
placed back into the [Guardians’] care without prejudice to reconsideration
based upon what I have in the [GAL’s] report and the arguments of counsel.”
Tr. at 25. The trial court followed up its ruling from the bench with a written
order stating custody of J.M. was temporarily and immediately placed with
4 Counsel’s remark echoes the trial court’s statement quoted above, and is also reflected in the GAL’s statement during the hearing that she does not “know how to make this case move forward. We just seem to be treading water . . . .” Tr. at 14-15.
Court of Appeals of Indiana | Memorandum Decision 20A05-1409-GU-441 | April 28, 2015 Page 6 of 13 Guardians “[b]ased on Mother’s unstable employment history, frequent
changes in living situation including a recent eviction and instability for the
minor child in her custody . . . .”5 Appellant’s App. at 20. Mother now
appeals.
Discussion and Decision I. Due Process [8] Mother contends the trial court violated her due process rights in immediately
changing custody of J.M. and failing to set an evidentiary hearing sooner than
three months out.
[9] “The parent-child relationship is one of the most valued relationships in our
culture . . . [a]nd a parent’s interest in the upbringing of their child is perhaps
the oldest of the fundamental liberty interests recognized by the courts.” In re
K.T.K., 989 N.E.2d 1225, 1230 (Ind. 2013) (citations and alterations omitted).
“[D]ecisions regarding marriage, family life, and raising children are of basic
importance in our society and are rights protected by the Fourteenth
Amendment from the State’s unwarranted interference.” C.A. v. Indiana Dep’t of
Child Servs., 15 N.E.3d 85, 93 (Ind. Ct. App. 2014) (citing M.L.B. v. S.L.J., 519
U.S. 102, 116-17 (1996)).
5 Mother’s parenting time was originally taken under advisement, but on August 26, 2014, the trial court ordered that she have supervised parenting time with the children awaiting the evidentiary hearing.
Court of Appeals of Indiana | Memorandum Decision 20A05-1409-GU-441 | April 28, 2015 Page 7 of 13 [10] “Due process” has never been defined, but it embodies the concept of
“fundamental fairness.” In re C.G., 954 N.E.2d 910, 917 (Ind. 2011). In
Mathews v. Eldridge, 424 U.S. 319 (1976), the Supreme Court stated that “[t]he
fundamental requirement of due process is the opportunity to be heard at a
meaningful time and in a meaningful manner.” Id. at 333 (citation and
quotation omitted).
[11] In support of her position, Mother cites two cases, which she claims are very
similar to this situation. In Brown v. Brown, 463 N.E.2d 310 (Ind. Ct. App.
1984), this court held that a delay of two months between the granting of a
temporary ex parte order immediately transferring custody of children from
father to mother and a full custody hearing was one of several procedural
irregularities that combined to constitute an abuse of the trial court’s discretion.
Id. at 313 (“Because a delay in custody hearing may increase the chances of a
custodial parent eventually being deprived of custody, it is not reasonable for a
custody hearing to follow an ex parte transfer of custody by two months.”)
(emphasis added). And in Wilcox v. Wilcox, 635 N.E.2d 1131 (Ind. Ct. App.
1994), this court held that a delay of fifteen months between the granting of an
emergency ex parte order immediately transferring custody of children was a
significant enough delay to alone be a denial of due process. Id. at 1136-37 (“In
order to protect the welfare of the child, the court may enter an ex parte order.
To protect the relationship between the parent and the children, the court is
required by statute to hold a prompt hearing—with notice and an opportunity to
be heard—on the custody issue.”) (emphasis in original).
Court of Appeals of Indiana | Memorandum Decision 20A05-1409-GU-441 | April 28, 2015 Page 8 of 13 [12] Both Brown and Wilcox are distinguishable from the case at bar because they
involved ex parte orders changing custody. The fact that the parent in each of
those cases was denied an opportunity to be heard on the change of custody at
all until after the passage of some amount of time was integral to each decision.
Here, Guardians filed a request to modify custody in advance of the hearing,
and the GAL filed a report summarizing her recommendations regarding
custody prior to the hearing. Although it may be that the review hearing was
not set for the specific purpose of deciding custody issues, it could not have
been a surprise to Mother that custody would be addressed. 6 At the hearing,
Mother was represented by counsel and heard by the trial court regarding a
change in custody before the court entered its temporary order. Thus, we do
not believe it is appropriate to consider the trial court’s action in this case to be
an ex parte order. See Stratton v. Stratton, 834 N.E.2d 1146, 1147-48 (Ind. Ct.
App. 2005) (noting that, where custody was temporarily modified following the
first day of a two-day trial at which both parties were present, it was not an ex
parte order and holding that a delay of seven months in holding the second day
of trial did not constitute a denial of due process).
[13] The trial court here recognized the need for a full evidentiary hearing on this
matter and set a date for that hearing before the parties left the courtroom that
6 Because we do not have the transcript of the June 23, 2014 hearing, we do not know precisely what matters the trial court set the August 18, 2014 hearing to review. That the GAL filed a report with the court in the interim concerning her recommendations for custody could be an indication that custody was one of those matters.
Court of Appeals of Indiana | Memorandum Decision 20A05-1409-GU-441 | April 28, 2015 Page 9 of 13 day. Admittedly, that hearing was set three months into the future. But as
Wilcox recognized, Brown does not stand for the proposition that a delay of two
months between an ex parte order changing custody and a full hearing is
necessarily too long, as the cumulative effect of several procedural regularities
compelled the result in Brown. 635 N.E.2d at 1137. And the delay in Wilcox
which the court held “severely prejudiced” the parent’s right to a hearing, id.,
was five times as long as the delay here. The length of the delay in this case is
not per se unreasonable.
[14] Further, the three month delay in holding a hearing in this case did not
prejudice Mother. As her counsel acknowledged, “the idea of a guardianship is
for the parties to be able to work together to the extent possible for [Mother] to
get into a position to be able to have the care and custody of her children.” Tr.
at 12. The review hearing leading up to the trial court’s temporary custody
order focused on several areas of Mother’s life where she was not in that
position—her housing and employment situations in particular. Setting an
evidentiary hearing three months into the future would give Mother an
opportunity to address those areas and show the court that she was in a position
to have custody of her children before the trial court made a permanent ruling
on Guardians’ request to modify custody.
[15] In sum, Mother had notice that custody was at issue in this case, the trial
court’s order transferring custody of J.M. to Guardians was temporary, and
Mother had an opportunity to be heard by counsel before a change of custody
was ordered with assurances of an opportunity to be heard more fully in short
Court of Appeals of Indiana | Memorandum Decision 20A05-1409-GU-441 | April 28, 2015 Page 10 of 13 order. We thus conclude that the trial court’s temporary order did not violate
Mother’s due process rights.
II. Temporary Modification of Custody [16] Mother also contends the trial court abused its discretion in modifying custody
when there was no showing of an emergency and the change was based on a
one-sided GAL report. We review findings and orders in a guardianship
proceeding for an abuse of discretion. In re Guardianship of Hollenga, 852 N.E.2d
933, 937 (Ind. Ct. App. 2006) (citing Ind. Code § 29-3-2-4(a)). We also review
custody modifications for an abuse of discretion with a “preference for granting
latitude and deference to our trial judges in family law matters.” K.I. ex rel. J.I.
v. J.H., 903 N.E.2d 453, 457 (Ind. 2009) (quoting Kirk v. Kirk, 770 N.E.2d 304,
307 (Ind. 2002)). An abuse of discretion occurs when the decision is clearly
against the logic and effect of the facts and circumstances before the court.
Hollenga, 852 N.E.2d at 937.
[17] In considering a natural parent-third party custody dispute, there is a
presumption that the natural parent should have custody of the child. In re
Guardianship of L.L., 745 N.E.2d 222, 230 (Ind. Ct. App. 2001), trans. denied.
The third party bears the burden of overcoming this presumption by clear and
convincing evidence, such as evidence of the parent’s present unfitness. Id. If
the presumption is overcome, then the court engages in a consideration of the
statutory modification factors and a “best interests” analysis. Id. at 231; see Ind.
Code § 31-14-13-6. Keeping in mind that this was a temporary change in
Court of Appeals of Indiana | Memorandum Decision 20A05-1409-GU-441 | April 28, 2015 Page 11 of 13 custody “without prejudice to reconsideration” following a full evidentiary
hearing, tr. at 25, we cannot say the trial court abused its discretion here.
[18] It appears to be true that the details in the GAL report were provided to the
GAL by Guardians. However, leaving aside the more salacious allegations
made by Guardians and included in the GAL’s report, there seems to be no
dispute regarding the GAL’s report that Mother had moved frequently with
J.M. and did not have steady employment. Mother had been found in
contempt of court for her actions with regard to parenting time as recently as
two months before this hearing. Moreover, this case has been before the trial
court for more than four years, and the court noted it was “quite familiar” with
the case and the dynamics of the situation. Tr. at 28; see In re Adoption of O.R.,
16 N.E.3d 965, 973 (Ind. 2014) (noting that we grant considerable deference to
a trial court’s decision in family law matters because “we recognize that the trial
judge is in the best position to judge the facts, determine witness credibility, get
a feel for the family dynamics, and get a sense of the [parties] and their
relationship with [the] children.”) (quotations omitted). On an emergency,
temporary basis, the trial court could have reasonably found based on the facts
and circumstances before the court that Mother was presently unfit to care for
J.M. and that it was in J.M.’s best interests to be immediately placed with
Guardians pending a full evidentiary hearing.7
7 Notwithstanding the temporary change in custody, at such evidentiary hearing, it remains Guardians’ burden to rebut the presumption that Mother is the appropriate person to have the custody of J.M. Cf. K.I.,
Court of Appeals of Indiana | Memorandum Decision 20A05-1409-GU-441 | April 28, 2015 Page 12 of 13 Conclusion [19] Mother’s due process rights were not violated by the manner in which the trial
court entered its temporary change of custody order or in the setting of an
evidentiary hearing. Further, the trial court did not abuse its discretion in
temporarily changing the custody of J.M. from Mother to Guardians.
Accordingly, the trial court’s temporary order is affirmed.
[20] Affirmed.
Bailey, J., and Brown, J., concur.
903 N.E.2d at 460 (“Even when a parent initiates an action to reobtain custody of a child that has been in the custody of another, the burden of proof does not shift to the parent . . . .”) (quotation omitted). If Guardians can rebut the presumption, then the trial court must examine the custody situation as it existed prior to the temporary order in determining whether the standard for modification of custody has been met. See Walker v. Chatfield, 553 N.E.2d 490, 497 (Ind. Ct. App. 1990) (“Temporary custody merely preserves the status quo until a final determination based on all the facts can be made.”).
Court of Appeals of Indiana | Memorandum Decision 20A05-1409-GU-441 | April 28, 2015 Page 13 of 13