MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Dec 20 2017, 10:01 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Glen E. Koch II Curtis T. Hill, Jr. Boren, Oliver & Coffey, LLP Attorney General of Indiana Martinsville, Indiana Robert J. Henke Katherine A. Cornelius Deputy Attorneys General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
In the Matter of the December 20, 2017 Guardianships of Ja.R.J,1 Je.R.J, Court of Appeals Case No. and Ju.R.J., Minor Children, 40A01-1706-GU-1297 H.L.R., Appeal from the Jennings Circuit Court Appellant-Petitioner, The Honorable v. Jon W. Webster, Judge
1 We recognize that H.L.R. is not appealing the juvenile court’s denial of his petition for guardianship as to minor child Ja.R.J. However, because Ja.R.J. was one of three siblings over whom H.L.R. had requested guardianship appointment at the trial court level (Cause Nos. 40C01-1608-GU-28, -29, -30), we find it appropriate to include her in the caption pursuant to Indiana Trial Rule 17(A), which provides that a party of record in the trial court shall be a party on appeal.
Court of Appeals of Indiana | Memorandum Decision 40A01-1706-GU-1297 | December 20, 2017 Page 1 of 14 Indiana Department of Child Trial Court Cause Nos. Services, 40C01-1608-GU-29 40C01-1608-GU-30 Appellee-Intervenor.
Kirsch, Judge.
[1] H.L.R. sought to be appointed as guardian for his former step-grandchildren,
three siblings: Ja.J., Je.J, and Ju.J. The trial court denied his request, and
H.L.R. now appeals that decision as to Je.J. and Ju.J. (together, “Brothers”).
He raises one issue that we restate as: whether the trial court’s decision to deny
H.L.R.’s petitions to establish guardianship over Brothers was contrary to law.
[2] We affirm.
Facts and Procedural History [3] H.L.R. (“Proposed Guardian”) was, for a time, married to Brothers’ maternal
grandmother, K.R. (“Grandmother”). Their marriage was dissolved in 2014.
At that time, Brothers and their sister Ja.J. (together, “the Children”), all
minors, were living with their biological father, J.R.J., Sr. (“Father”) and his
wife (“Stepmother”). In 2011, Father had been awarded legal custody of the
Court of Appeals of Indiana | Memorandum Decision 40A01-1706-GU-1297 | December 20, 2017 Page 2 of 14 Children, when Ja.J was five years old, Je.J. was two, and Ju.J. was one.2
Their biological mother S.W. (“Mother”) abused drugs and was only
sporadically in their lives. At all relevant times, Proposed Guardian lived near
Father’s residence, and he saw the Children on a regular basis, such as on
weekends and attending their extracurricular activities and events, as well as
holidays and birthdays.
[4] Father was engaged in dealing drugs, including in his home and in the
Children’s presence. In early April 2014, Stepmother ingested
methamphetamine that Father had given her, was hospitalized, and died. The
Indiana Department of Child Services (“DCS”) removed the Children from
Father’s home on April 10, 2014 on allegations of illegal drug use and domestic
battery. On April 11, 2014, Father was arrested on federal criminal drug
charges; he has been continuously incarcerated since his arrest.
[5] DCS filed a child in need of services (“CHINS”) petition for each of the
Children, and they were placed for some months with Mother’s sister, and then
due to her family obligations, the Children were placed with a foster family. In
January 2015, the trial court adjudicated the Children as CHINS, and, in
February 2015, it issued a dispositional order and parenting participation order.
By June 2015, the trial court changed the permanency plan from reunification
to termination of parental rights. In 2015, the Children exercised some visits
2 Ja.J. was born in August 2004, Je.J. was born in April 2007, and Ju.J. was born in July 2008.
Court of Appeals of Indiana | Memorandum Decision 40A01-1706-GU-1297 | December 20, 2017 Page 3 of 14 with Mother, although she would relapse and disappear for periods of time. In
January 2016, Mother died. In March 2016, Father was found guilty after a
federal jury trial of Conspiracy to Distribute 300 Grams or More of
Methamphetamine (Causing Death) and Distribution of Methamphetamine
(Causing Death). Father received two concurrent life sentences for the
convictions.3
[6] On February 1, 2016, DCS filed a petition for termination of Father’s parental
rights. At that time, the Children were still with the foster family where they
had originally been placed, and they remained there throughout the CHINS
and termination proceedings. The Children exercised some visits with
Proposed Guardian on weekends at times that he coordinated with the foster
mother; Ja.J. participated in those for a short time, but then quit going for
visitation with Proposed Guardian.
[7] On August 8, 2016, the Proposed Guardian, who was the Children’s ex-step-
grandfather, filed three petitions for guardianship, one for each of the three
Children, and Father consented to the guardianship. DCS filed a motion to
intervene, which the trial court granted. The trial court held a consolidated
hearing on DCS’s termination of parental rights petitions and on Proposed
Guardian’s petitions for guardianship of the Children. The hearing began on
3 Father’s appeal of his convictions and sentence was pending at the time of the termination hearing in February and April 2017; however, the Seventh Circuit Court of Appeals affirmed his convictions and sentence on August 4, 2017. United States v. Maggard, 865 F.3d 960 (7th Cir. 2017).
Court of Appeals of Indiana | Memorandum Decision 40A01-1706-GU-1297 | December 20, 2017 Page 4 of 14 February 17, 2017, and, due to time constraints, was concluded on April 11,
2017.
[8] At the hearing, Father acknowledged that the Children had suffered trauma in
their lives and that they needed a permanent home, but he preferred that the
Children be placed in guardianship with Proposed Guardian, rather than
terminate his parental rights. Tr. Vol. II at 35. Father testified that Proposed
Guardian had “always been a sense of security” in the Children’s lives and that
his home was “right down the street” from Father’s. Id. at 28, 36. About the
Proposed Guardian, Father said, “[the Children] love him.” Id. at 35. Father
did not want the Children to feel that he had abandoned them and wanted to be
able to communicate with them, which Proposed Guardian had indicated
Father could do if he were to receive guardianship of the Children.
[9] Among others, DCS called as witnesses Sherry Moore (“Moore”), who was the
Children’s therapist at Life Springs, and Melanie Young (“Young”), who was
the Children’s case manager at Life Springs. Moore began seeing the Children
in November 2014. When she first saw them, they had “[a] lot of trauma which
presented with anger. They would shut down a lot. [Ja.J] especially was
angry.” Id. at 49. She elaborated:
Their trauma was considered chronic because of the exposure to drugs, witnessing drug use, witnessing people in and out of the house, seeing you know drugs being sold, the death of their stepmother was another issue that they were dealing with, incarceration of their father, removal of the home, they had two
Court of Appeals of Indiana | Memorandum Decision 40A01-1706-GU-1297 | December 20, 2017 Page 5 of 14 placements — they were with their aunt, then they went into foster care[.]
Id. Moore also noted that their foster father died from cancer sometime in
2016. Moore testified that Ja.J. still experienced anxiety, worrying about what
was going to happen to her and her brothers, and that because she was the
caregiver for her brothers for so long, she struggled with being a sister and not a
mother. Moore said that Ja.J. had indicated “on numerous occasions” that she
wanted a home “with a mom and a dad,” so that she could be a kid like others
her age and not a mother. Id. at 55. The brothers had been diagnosed with
ADHD and oppositional defiant disorder, which includes aggression and
inability to regulate emotions. Moore stated that Je.J. internalizes everything
and had made less progress because “he holds everything in.” Id. at 51. Ju.J.
also has reactive attachment disorder, caused by not having his needs met when
he was younger, so he experienced difficulty getting along with people in social
situations and had been hospitalized on four occasions due to outbursts and
behavior issues. Id. at 52.
[10] Moore said that Proposed Guardian had participated in some of the Children’s
therapy sessions, but that Ja.J. did not always want to be in the session if he
was there, and Ja.J. refused to go to his house for visits. Ja.J. expressed to
Moore that returning to the same county, school, and area where she lived with
Father would be “re-traumatizing to her all over again.” Id. at 56. Moore was
aware that DCS had identified a possible adoptive family, consisting of a
mother and father and children, and that the Children had told her that they
Court of Appeals of Indiana | Memorandum Decision 40A01-1706-GU-1297 | December 20, 2017 Page 6 of 14 “loved going over there” and “wish[ed] they could be adopted by that family.”
Id. at 58.
[11] Young, in her job as a case manager at Life Springs, helped to teach social skills
and coping skills. She provided services to the Children in school and out of
school, in the community, to work on social skills and getting along with
others, giving prompts to the Children to avoid getting into physical or verbal
altercations with peers or teachers. She began working with Ju.J. in November
2014 and with Ja.J. and Je.J. in July 2015. She said Ja.J. was doing well and
that Je.J. was struggling, but had improved. Young shared that Ju.J. was “back
to full days at school,” as he had been only attending partial days due to
disruptive behaviors in the classroom. Id. at 63. She testified, “They absolutely
need to continue services,” having made gains but requiring continued
reinforcement. Id.
[12] Although Young had not been present at any visits between Brothers and
Proposed Guardian, she indicated that she had concerns about placing the
Children with him due to the fact that there would not be a mother in the
house, stating that both Ja.J., as well as Brothers, “need a strong female role
model” in the house. Id. at 64. Moore was aware of a possible family that
might be interesting in adopting the Children and that the Children had visited
with the family.
[13] DCS family case manager Debra Scatterfield (“FCM Scatterfield”) also
testified. She became involved in the case in May 2014, after the initial removal
Court of Appeals of Indiana | Memorandum Decision 40A01-1706-GU-1297 | December 20, 2017 Page 7 of 14 and assessment, and was the family case manager on the case until August or
September 2015, when family case manager Ryan Matern (“FCM Matern”)
took over the case, but FCM Scatterfield remained on the case as his supervisor.
FCM Scatterfield described the Children’s emotional, mental, and behavioral
issues when she was assigned to the case, their respective diagnoses, as well as
their progress and current status. During her time as FCM on the case,
Scatterfield arranged some visitations with Mother during 2015, until Mother
passed away in January 2016. She said that Proposed Guardian did not have
any visitations with the Children during her time as FCM. Id. at 47.
[14] FCM Matern, who assumed responsibility on the case in or around September
2015, also testified. He stated that Brothers had been having visits during
weekends, generally for five hours or so, with Proposed Guardian for
approximately a year, but that Ja.J. was not willing to participate in those visits.
FCM Matern opined that termination, not the proposed guardianship, was in
the Children’s best interests because (1) Ja.J. did not want to visit with
Proposed Guardian, and (2) DCS was concerned about having the Children
return to the same area “where everything went down[,]” referring to the drug
activity, arrest of their Father, and removal from his home. Id. at 72. DCS
wanted the Children to have a “fresh start in a different place or with a new
family.” Id.
[15] After DCS rested its case, Proposed Guardian and Grandmother testified.
Proposed Guardian was then fifty-one years old, was steadily employed for
seventeen or eighteen years, lived alone, and had no criminal convictions.
Court of Appeals of Indiana | Memorandum Decision 40A01-1706-GU-1297 | December 20, 2017 Page 8 of 14 Proposed Guardian testified that, for approximately a year, he had been having
visits during most weekends for five hours or so with Brothers and that there
had been no problems. Proposed Guardian indicated that his visits with Ja.J.
“stopped a good while back,” but he said he did not know why, stating, “I have
no idea, she doesn’t act like the same [Ja.J.].” Id. at 84, 89. He presented
pictures of his home and a van he purchased so that he could easily transport
the Children. Proposed Guardian testified to attending the Children’s activities
and sporting events. He said that, if he were to be awarded guardianship, he
would want the Children to stay in the same school that they were currently
attending, although he currently did not reside or work in that county.
Proposed Guardian stated that, if he were to be awarded guardianship, he
would move his residence to the county where the Children were attending
school. When asked who would care for the Children while he was at work,
third shift, he stated that Grandmother would babysit them while he was at
work, although she too lived in a different county from where the Children
were then attending school, and that he might seek to change from working
third shift.
[16] Grandmother testified that she would, if asked, be willing to babysit for the
Children at Proposed Guardian’s home, if he were awarded guardianship of
them. Grandmother had gone to Proposed Guardian’s home on some
occasions to visit with Brothers when they were at his home. She said that Ja.J.
had come for a few visits, but then stopped visiting, although she did not know
the reason why Ja.J. did not want to participate in visits with Proposed
Court of Appeals of Indiana | Memorandum Decision 40A01-1706-GU-1297 | December 20, 2017 Page 9 of 14 Guardian. When asked if she had any concerns with the proposed
guardianship, Grandmother said, “Yeah I do[,]” stating that sometimes there is
yelling and arguing at Proposed Guardian’s home, which sometimes is between
her and Proposed Guardian, but sometimes Brothers get into it as well. Id. at
97-98. She opined, “[T]hey’ve been around enough of the yelling and arguing”
and “I don’t think they need to be associated with any of that.” Id. at 99.
Grandmother testified that in her opinion the three Children “should stay
together” and not be separated through any guardianship or adoption. Id. at
100, 102.
[17] The trial court asked the parties to submit proposed findings and conclusions as
to the termination and guardianship, and it took the matter under advisement.
On May 15, 2017, it issued its Order4 Denying Petition for Appointment of
Guardian Over Minors (“Order”).5 Proposed Guardian now appeals the trial
court’s refusal to appoint him as guardian for Brothers, Je.J. and Ju.J.
Discussion and Decision [18] In this case, where Father had received two concurrent life sentences and
Mother was deceased, the trial court was presented with competing options for
4 We note that the juvenile court issued a separate order for each of the three Petitions, but because the orders are identical other than the child’s name in the caption, we will, for ease and clarity, refer to the three orders collectively as one “Order.” 5 On May 18, 2017, the juvenile court issued an Order Terminating Parental Rights of Father, and Father appealed. This court will address Father’s appeal of the termination of his parental rights by separate decision.
Court of Appeals of Indiana | Memorandum Decision 40A01-1706-GU-1297 | December 20, 2017 Page 10 of 14 the Children’s placement: (1) terminate Father’s parental rights, allowing DCS
to move forward with adoption; or (2) grant Proposed Guardian’s request for
guardianship of the Children. In Indiana, any person may file a petition for the
appointment of a guardian for an incapacitated person or a minor. Ind. Code §
29-3-5-1(a). Indiana Code section 29-3-5-3, concerning appointment of a
guardian, provides in relevant part:
(a) Except under subsection (c), if it is alleged and the court finds that:
(1) The individual for whom the guardian is sought is an incapacitated person or a minor; and
(2) 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 this chapter.
....
(c) If the court finds that it is not in the best interests of the incapacitated person or minor to appoint a guardian, the court may:
(2) enter any other appropriate order; or
(3) dismiss the proceedings.
Court of Appeals of Indiana | Memorandum Decision 40A01-1706-GU-1297 | December 20, 2017 Page 11 of 14 The court is to give due regard to, among other things, the best interest of the
child. Ind. Code §§ 29-3-5-3(c), 29-3-5-4(8).
[19] After a two-day hearing and taking the matter under advisement, the trial court
denied Proposed Guardian’s petitions for guardianship of the Children.
Generally speaking, all guardianship findings, orders, and proceedings are
committed to the sound discretion of the trial court. Ind. Code § 29-3-2-4(a).
We therefore review guardianship decisions for an abuse of discretion, which
occurs if the decision is against the logic and effect of the facts and
circumstances before the court or if the court has misinterpreted the law. In re
Guardianship of N.R., 26 N.E.3d 97, 100 (Ind. Ct. App. 2015). Where, as here,
the trial court did not enter specific findings of fact, a general judgment
standard applies. In re B.J.N., 19 N.E.3d 765, 769 (Ind. Ct. App. 2014). We
may affirm a general judgment on any theory supported by the evidence at trial.
Id. Because Proposed Guardian had the burden of proof at trial, he is appealing
from a negative judgment. A party appealing from a negative judgment must
show that the evidence points unerringly to a conclusion opposite that reached
by the trial court. In re. J.C., 735 N.E.2d 848, 849 (Ind. Ct. App. 2000). We
will reverse a negative judgment only where the trial court’s decision is contrary
to law. Indiana Dep’t of Child Servs. v. J.D., 77 N.E.3d 801, 806 (Ind. Ct. App.
2017), trans. denied. In determining whether a negative judgment is contrary to
law, we neither reweigh the evidence nor judge the credibility of witnesses, and
consider only the evidence most favorable to the prevailing party, together with
all reasonable inferences flowing therefrom. J.C., 735 N.E.2d at 849.
Court of Appeals of Indiana | Memorandum Decision 40A01-1706-GU-1297 | December 20, 2017 Page 12 of 14 [20] On appeal, Proposed Guardian readily acknowledges the numerous traumas
that Brothers, indeed all three of the Children, have suffered, including
witnessing the sale and use of drugs, removal from their home, Stepmother’s
death, Father’s life sentences of federal incarceration, DCS placements with a
maternal aunt and then a foster family, Mother’s death, and the death of their
foster father. Proposed Guardian argues that, while DCS believes that the best
interests of Brothers would be served “by resetting their lives,” it would be a
disservice to Brothers, and not in their best interests, to try to erase the boys’
“relationship and bond with their ex-step-grandfather and their grandmother.”
Appellant’s Br. at 9. Proposed Guardian urges that he has been involved in their
lives since birth and has been a source of stability, and, moreover, placement
with him would allow Brothers to visit Grandmother. A guardianship, he
argues, would thus retain “the remainder of the family bonds” and is preferable
to adoption by a family who is unfamiliar to Brothers. Id. at 13.
[21] The trial court heard and considered Proposed Guardian’s testimony
concerning his continuing bond with Brothers, his home, his steady
employment, his lack of criminal history, and his willingness to move his
residence if he received guardianship. In addition, the trial court was presented
with DCS’s evidence that these particular Children need placement in a home
with a mother and a father, that the three Children get along well with each
other and share a bond, and that Ja.J. has anxiety about what is going to
happen to her and her brothers. Moore testified that, at least as to Ja.J., going
back to the same neighborhood where they lived with Father and witnessed
Court of Appeals of Indiana | Memorandum Decision 40A01-1706-GU-1297 | December 20, 2017 Page 13 of 14 drug sales and abuse would be re-traumatizing. Proposed Guardian had been
having visits with Brothers for the year or so preceding the hearing, but Ja.J.
was unwilling to join for those visits, and she also would not participate in
therapy if Proposed Guardian was present. Father testified that Proposed
Guardian would allow Father to communicate with the Children, but evidence
was presented that the Children rarely speak of Father and have not responded
to his letters. FCM Matern testified that he was aware of the proposed
guardianship, but that, in his opinion, termination and adoption, was in the
Children’s best interests. Grandmother felt that the three Children should stay
together, and not be separated, and she acknowledged that she had concerns
about the Children being placed with Proposed Guardian due to arguing
occurring between him and her, in which Brothers sometimes became involved.
[22] The trial court heard and considered the evidence, judged the credibility of the
witnesses, and determined that the best interests of the Children was
termination of parental rights, and not guardianship. Given the record before
us, and our deferential standard of review, we cannot say that the evidence
points unerringly to a conclusion opposite that reached by the trial court. The
trial court’s decision to deny Proposed Guardian’s petitions for appointment of
guardianship of Je.J. and Ju.J was not contrary to law.
[23] Affirmed.
Najam, J., and Brown, J., concur.
Court of Appeals of Indiana | Memorandum Decision 40A01-1706-GU-1297 | December 20, 2017 Page 14 of 14