In the Matter of the Guardianship of B.W. E.W. v. L.G.

45 N.E.3d 860, 2015 Ind. App. LEXIS 708, 2015 WL 6940130
CourtIndiana Court of Appeals
DecidedNovember 10, 2015
Docket40A01-1501-GU-27
StatusPublished
Cited by4 cases

This text of 45 N.E.3d 860 (In the Matter of the Guardianship of B.W. E.W. v. L.G.) 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 the Matter of the Guardianship of B.W. E.W. v. L.G., 45 N.E.3d 860, 2015 Ind. App. LEXIS 708, 2015 WL 6940130 (Ind. Ct. App. 2015).

Opinion

RÓBB, Judge.

Case Summary and Issue

[1] C.F. (“Grandmother”) filed a petition for guardianship over B.W., which the trial court granted. E.W. (“Mother”) consented to the guardianship. Four-and-a-half years later, L.G. (“Great Aunt”) filed a petition requesting she be appointed guardian over B.W. Soon after, Grandmother filed a petition-to terminate her guardianship over B.W. Grandmother’s petition stated the guardianship was no longer necessary because M.other was now “capable of and is caring for the minor child.” Appellant’s Appendix at 16. The trial court scheduled a hearing for .both petitions on December 4,2014.

[2] During the hearing on December 4, 2014, the trial court .granted Grandmother’s petition to terminate guardianship but took Great Aunt’s petition under advisement. -The trial • court subsequently awarded Great Aunt custody of B.W. Mother appeals the trial court’s order, raising two issues for our review, one of which we find dispositive:, whether the trial court’s findings establish Great Aunt has rebutted the presumption that B.W.’s interests would be best served by placement with her natural parent. Concluding *862 the findings fail to support the trial court’s judgment that Great Aunt has overcome the presumption in favor of Mother by clear and convincing evidence, we reverse and remand with instructions.

Facts and Procedural History

[3] Mother gave birth to B.W. on September 19, 2009. B.W. tested positive for methadone at birth. As a result, the Indiana Department of Child Services (“DCS”) placed B.W. with Grandmother and initiated Child in Need of Services (“CHINS”) proceedings. Thereafter, at the suggestion of DCS, Grandmother filed a petition for guardianship over B.W. Mother consented to the guardianship; due to her substance abuse, Mother was unable to care for B.W. at that time. DCS dismissed the CHINS petition after the trial court appointed Grandmother guardian over B.W. on January 19, 2010.

[4] From approximately • September 2009 to May 2010, B.W. lived with Grandmother. Great Aunt and Great Aunt’s mother (“Great Grandmother”) 1 also lived with Grandmother during this time. Great Aunt cared for both Great Grandmother and B.W. while Grandmother was at work.

[5] In May 2010, B.W.,. Great Aunt, and Great Grandmother moved' out of Grandmother’s house 'and into Great Grandmother’s newly constructed house. Grandmother agreed B.W. should live with Great Aunt. Unlike Great Aunt, Grandmother worked during the day, and Grandmother did not want to place B.W. in daycare at such a young age. In addition, Grandmother was then going through a divorce and believed Great Aunt’s house would be “the best stable place for [B.W.].” Transcript at 93.

[6] From May 2010 to May 2014, B.W. lived primarily with’ Great Aunt, and Mother visited B.W. only ten to fifteen times. Mother continued to. struggle with substance abuse. In 2012, Mother was convicted of operating a vehicle while intoxicated, and Mother admits she used hy-drocodone and methamphetamine from 2012 to 2013. Mother agrees Great Aunt “took good care of B.W., loved B.W. very much[,] and formed a bond with B.W.” during this period. Appellant’s Brief at 9.

[7] In mid-2013, Mother stopped using drugs when she became pregnant with her second child, K.W. Mother moved in with Grandmother, and the child was born in April 2014 without drugs in her system. Around this time, Mother attempted to have more contact with B.W., but Great Aunt would not allow Mother to see. B.W. According to Grandmother, “[Great Aunt] was trying to ... keep [Mother] and [B.W.] apart. She wasn’t allowing [Mother] to be around [B.W.],” even after Mother had been “clean for a number of months.” Tr. at 95-96. Great Aunt told Grandmother, “I’m’ [B.W.]’s mother. ■ I’m not going to allow anybody else to raise her.” Id, at 97.

’ [8] In May 2014, following a visit with Great Grandmother in the hospital, Grandmother suggested she take -B.W. for the night. ¡Great- Aunt said, “Okay, bring her back tomorrow,” but .Grandmother stated she would not be. bringing B.W. back. Id. at 23-24. From May,. 2014 to September 2014, Mother, B.W., and K.W. lived with Grandmother, and Grandmother observed Mother caring for B.W. and K.W. In addition, Mother completed certified nurse aide (“CNA”) training and began working as a CNA, a job that requires Mother to submit to random drug screening.

[9] Nevertheless, Great Aunt filed a petition in June 2014’requesting she be appointed guardian over B.W. In July 2014, Grandmother filed a petition to ter- *863 mínate her guardianship over B.W. Grandmother’s petition stated the guardianship was no longer necessary because Mother was now “capable of and is caring for the minor child.” Appellant’s App. at 16. The trial court scheduled a .hearing for both petitions on December 4,2014.

[10] In the months leading up to the hearing, Mother moved in with her boyfriend. Mother took B.W. and K.W. with her, but maintained contact between B.W. and Great Aunt. During the hearing on December 4, 2014, the trial court granted Grandmother’s petition to terminate guardianship but took Great Aunt’s petition under advisement after hearing testimony from six witnesses, including Mother, Grandmother, and Great Aunt. Mother acknowledged the bond between Great Aunt and B.W. and stated she wants Great Aunt to continue to have a relationship with B.W. But Mother also stated she believes Great Aunt’s role “should be as a great aunt.” Tr, at 65. Mother testified she wants to have a mother-daughter relationship with B.W. Id. at 54 (“My intent is to have the relationship that I’m supposed to have with my daughter.... ”).

[11] At the time of the hearing, Mother had been working as a CNA for five months, had a place to live, had no criminal charges pending, and had passed the last random drug screen administered by her employer in September 2014. Great Aunt admitted she had little to no firsthand knowledge of what was “going on” in Mother’s life. Id. at 44. Grandmother testified to Mother’s sobriety and the other lifestyle changes Mother had made since becoming pregnant with K.W.:

Q Okay in the state that [Mother] was in at certain times because of her drag addiction, were there times that you would not have allowed her around your granddaughter?
A Yes there were times that I would not have allowed it.
Q Let me ask you this. If [Mother] was using drugs and on drugs, would you let [B.W.] be around her?
A No.
Q Now, I want to move forward. [Mother] testified that she has been clean for a year. Based upon your observations, do you believe that to be true?
A Ido.
Q Have you seen your daughter over the years when she was using drugs?
A Yes I have.
Q And over the past 12 months, does she appear to be sober to you?
A Yes she does.
Q What kind of changes have you seen since, say, two years ago to now in your daughter?

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45 N.E.3d 860, 2015 Ind. App. LEXIS 708, 2015 WL 6940130, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-the-matter-of-the-guardianship-of-bw-ew-v-lg-indctapp-2015.