In the Matter of the Guardianship of Zachary Johnson: Adam D. Johnson v. Sarah Oswalt (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: December 10, 2018
• Docket: 18A-GU-816
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Dec 10 2018, 9:19 am

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

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Robert Owen Vegeler Douglas E. Johnston Vegeler Law Office LLC Angelica N. Fuelling Fort Wayne, Indiana Tourkow, Crell, Rosenblatt & Johnston, LLP Fort Wayne, Indiana

IN THE COURT OF APPEALS OF INDIANA

In the Matter of the December 10, 2018 Guardianship of Zachary Court of Appeals Case No. Johnson: 18A-GU-816 Adam D. Johnson, Appeal from the Allen Superior Court Appellant-Respondent, The Honorable v. Phillip E. Houk, Magistrate Trial Court Cause No. Sarah Oswalt, 02D09-1412-GU-242

Appellee-Petitioner.

Kirsch, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-GU-816 | December 10, 2018 Page 1 of 8 [1] Adam D. Johnson (“Adam”) appeals the trial court’s order that removed him

as guardian for his adult son, Zachary Johnson (“Zach”), and that appointed

Sarah Oswalt (“Sarah”), Zach’s mother, as Zach’s successor guardian. Adam

raises the following issue: whether the trial court abused its discretion in

terminating his role as guardian and appointing Sarah as permanent successor

guardian.

[2] We affirm.

Facts and Procedural History [3] Zach is unable to manage his personal and financial affairs because he suffers

from Autism Spectrum Disorder, depression, anxiety, ADHD, and Smith

Lemli Opitz Syndrome. Tr. Vol. 2 at 41, 52-53; Appellant’s App. Vol. 2 at 16.

Zach turned eighteen years of age in December of 2014, so in May of 2015,

Adam and Sarah agreed that Adam would serve as Zach’s guardian. Id. at 19-

23.

[4] Sarah later wanted to increase her parenting time, so in February of 2016, she

filed a motion to modify parenting time. Id. at 24. The trial court ordered

mediation, but before mediation could begin, Adam moved with Zach to North

Carolina. Tr. Vol. 2 at 56. Adam neither consulted Sarah about the move, nor

sought or received permission from the trial court for the move. Id. at 56, 129.

Adam’s move to North Carolina hindered Sarah’s efforts to communicate with

Zach. Id. at 57. In the nearly one year that Zach was in North Carolina, Adam

did not procure services for Zach. Id. at 97, 125, 130-31.

Court of Appeals of Indiana | Memorandum Decision 18A-GU-816 | December 10, 2018 Page 2 of 8 [5] On March 2, 2017, Sarah filed a verified petition to remove Adam as guardian.

Appellant’s App. Vol. 2 at 6, 26-27. The trial court issued an interim order

requiring Adam to facilitate contact between Sarah and Zach. Id. at 28- 30. It

also ordered Adam and Sarah to coordinate an Indiana Trial Rule 35

evaluation of Zach and reschedule mediation, which the trial court said could

be conducted by telephone. Id. at 29.

[6] Adam failed to have Zach evaluated as directed by the trial court and did not

participate in any mediation sessions. Tr. Vol. 2 at 130-31. He also did not

allow Sarah to visit Zach. Id. at 124-25. Therefore, Sarah filed a motion for

immediate temporary change of guardianship, which the trial court heard on an

emergency basis without Adam attending the hearing. Appellant’s App. Vol. 2 at

9; 31-33. Citing Adam’s disregard for its orders, the trial court suspended

Adam’s authority as guardian and appointed Sarah as temporary guardian. Id.

at 34-35. Specifically, the trial court found that “[Adam’s] conduct in ignoring

the court’s orders and preventing the mother/son relationship from advancing

is directly and adversely affecting the best interests of [Zach] and causing

immediate and substantial injury to him.” Id.

[7] Sarah then travelled to North Carolina to bring Zach back to Indiana. Tr. Vol. 2

at 57. Because Zach had not received services for nearly one year, Sarah

immediately tried to coordinate services for Zach, even as she was driving back

to Indiana. Id. at 58. She eventually arranged services with Todd Clark

(“Clark”), a behavioral therapist, and Taylor Hartsock (“Hartsock”), a day

Court of Appeals of Indiana | Memorandum Decision 18A-GU-816 | December 10, 2018 Page 3 of 8 program supervisor at Passages Incorporated, a not-for-profit organization that

serves individuals with developmental disabilities. Id. at 8; 18-20.

[8] Once back in Indiana, Sarah made sure that Zach immediately received

medical and dental care. Id. at 62-64. Further, she made efforts to maintain a

positive relationship between Zach and Adam by arranging visits and regular

communication through text messaging. Id. at 64.

[9] At the hearing on Sarah’s verified petition to remove Adam as guardian and

appoint her as successor guardian, Clark, Hartsock, and Michael Setlak

(“Setlak”), Zach’s guardian ad litem, testified about Sarah’s efforts to obtain

services for Zach, the appropriateness of her home, her qualities as a parent, her

efforts to maintain a relationship between Zach and Adam, and whether it was

in Zach’s best interests for her to become Zach’s permanent guardian. For

instance, when Clark was asked about Sarah’s interaction with Zach, he

testified that she was “[e]xcellent... she was very on the ball it seemed to me.”

Id. at 10. Clark also testified that Sarah was an excellent parent: “she would be

in the top of the parents I have met, honestly.” Id. Clark had no concerns

about Sarah’s small home1 or Zach’s interactions with his siblings. Id. at 11, 17.

Hartsock’s testimony about Sarah was also positive. Hartsock said that Sarah

1 The residence is about 1100 square feet and houses four people (five people when Sarah’s boyfriend spends the night) and six pets. Tr. Vol 2 at 71, 76-77.

Court of Appeals of Indiana | Memorandum Decision 18A-GU-816 | December 10, 2018 Page 4 of 8 was “very involved” in the intake process and that “she kept in communication

[and was] very pleasant.” Id. at 20.

[10] Donovan Martin (“Martin”), a licensed mental health counselor, also testified,

stating that his testing of Sarah had shown that reunifying her with Zach was

appropriate. Id. at 33-34. Martin also attested to Sarah’s ability to procure

appropriate services for Zach, stating that she was able to obtain services “faster

than I have seen a lot of people do it.” Id. at 42. Setlak also praised Sarah’s

ability to arrange services for Zach, testifying that Sarah did more in the

preceding four or five months to procure services for Zach than Adam had done

over a fifteen-month period. Id. at 140. When asked about the possibility of

letting Adam resume his role as guardian, Setlak worried that Adam would

once again cut off contact between Zach and Sarah. Id. at 140-41. Thus, Setlak

recommended that the trial court appoint Sarah as Zach’s permanent guardian.

Id. at 144.

[11] In its final order addressing Sarah’s verified petition to remove Adam as Zach’s

guardian and appoint her as successor guardian, the trial court found and

ordered as follows:

3. [Sarah], in a relatively short time, has procured services and implemented a broad strategy to assist in [Zach’s] development and increasing [Zach’s] self-reliance. The continued utilization of these services and implementation of this strategy is in [Zach’s] best interests.

4. [Sarah] has demonstrated a high degree of cooperation regarding [Zach’s] visitation with . . . [Adam]. Court of Appeals of Indiana | Memorandum Decision 18A-GU-816 | December 10, 2018 Page 5 of 8 Therefore, the Court discharges [Adam] as Guardian and appoints [Sarah] to serve as the Successor Guardian of [Zach].

Appellant’s App. Vol. 2 at 14-15. Adam now appeals.

Discussion and Decision A trial court is vested with discretion in making determinations as to the guardianship of an incapacitated person. See Ind. Code § 29-3-2-4; In re Guardianship of Atkins, 868 N.E.2d 878, 883 (Ind. Ct. App. 2007), trans. denied. This discretion extends to both its findings and its order. [In re] Atkins, 868 N.E.2d at 883. Thus, we apply the abuse-of-discretion standard to review the trial court’s findings and order. Id. An abuse of discretion occurs when the trial court’s decision is clearly against the logic and effect of the facts and circumstances presented. Id.

In re Guardianship of Morris, 56 N.E.3d 719, 723 (Ind. Ct. App. 2016).

[12] “The trial court’s paramount consideration in making its determination of the

person to be appointed guardian is the best interest of the incapacitated person.”

In re Atkins, 868 N.E.2d at 883. A court “may remove a guardian on its own

motion or on petition of the protected person or any person interested in the

guardianship, after notice and hearing, on the same grounds and in the same

manner as is provided under [Indiana Code section] 29-1-10-6 for the removal

of a personal representative.” Ind. Code § 29-3-12-4(a). These grounds include

the failure “to perform any duty imposed by law or by any lawful order of the

court, or [if the guardian] has ceased to be domiciled in Indiana.” Ind. Code §

29-1-10-6(b). With the approval of the trial court, a guardian may “change the

physical presence of the protected person to another place in Indiana or to Court of Appeals of Indiana | Memorandum Decision 18A-GU-816 | December 10, 2018 Page 6 of 8 another state if the court finds that such a change is in the best interests of the

protected person.” Ind. Code § 29-3-9-2.

[13] Here, the trial court did not abuse its discretion in removing Adam as Zach’s

guardian as Adam defied court orders, undermined Sarah’s relationship with

Zach, and failed to perform duties imposed by law. Specifically, Adam defied

the trial court’s orders to 1) participate in mediation, 2) facilitate visits between

Zach and Sarah, 3) obtain a Trial Rule 35 evaluation of Zach and 4) procure

services for Zach. See Tr. Vol. 2 at 57, 97, 124-25, 130-31. Adam violated the

law when he moved with Zach to North Carolina without first seeking

permission from the trial court. Id. at 56, 129; see also I.C. § 29-3-9-2. Of equal

concern was Setlak’s testimony that letting Adam continue as guardian would

possibly undermine Sarah’s relationship with Zach. Tr. Vol. 2 at 140-41.

[14] Likewise, the trial court did not abuse its discretion in appointing Sarah as

permanent successor guardian as nearly all evidence about her was positive.

For instance, once she picked up Zach in North Carolina, Sarah immediately

reached out to experts to arrange services for Zach, something that Adam was

unable or unwilling to do during a fifteen-month period. Id. at 58, 140. Sarah

tried to maintain a positive relationship between Zach and Adam by arranging

visits and regular communication, while Adam had stymied all of Sarah’s

efforts to maintain a relationship with Zach while Zach lived with Adam in

North Carolina. Id. at 64, 124-25. Upon arrival in Indiana, Sarah immediately

attended to Zach’s dental and medical needs. Id. at 62-64.

Court of Appeals of Indiana | Memorandum Decision 18A-GU-816 | December 10, 2018 Page 7 of 8 [15] The glowing testimony from Zach’s service providers about Sarah also illustrate

that the trial court did not abuse its discretion in appointing Sarah as successor

guardian. For example, Clark described Sarah's interaction with Zach as

“[e]xcellent... she was very on the ball it seemed to me” and that ““she would

be in the top of the parents I have met . . . .” Id. at 10. Both Martin and Setlak

were impressed with Sarah’s ability to procure services for Zach. Id. at 42, 140.

[16] In arguing that the trial court’s ruling was an abuse of discretion, Adam invites

us to reweigh the evidence. For instance, he contends that his more spacious,

pet-free living quarters, where Zach would have his own bedroom, would make

him a better guardian than Sarah. See Appellant’s Br. at 7. He also claims he

would make a better guardian because Zach’s grandparents would help

supervise Zach, and Adam would ensure that Zach regularly attends church.

See id. This evidence was before the trial court, and its ruling shows that it

found it was outweighed by the evidence that Zach’s best interests were served

by appointing Sarah as successor guardian. See In re Atkins, 868 N.E.2d at 883.

The prerogative to weigh evidence belongs to the trial court, not this court, and

we will not second guess its assessment of the evidence. See In re Morris, 56

N.E.3d at 723.

[17] Affirmed.

Vaidik, C.J., and Riley, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-GU-816 | December 10, 2018 Page 8 of 8