M.L. v. B.M. (mem.dec.)

• Court: Indiana Court of Appeals
• Decided: June 21, 2017
• Docket: 41A04-1612-GU-2700
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Jun 21 2017, 8:46 am regarded as precedent or cited before any 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.

APPELLANT PRO SE Michelle Lewis Monticello, Indiana

IN THE COURT OF APPEALS OF INDIANA

M.L., June 21, 2017 Appellant-Defendant, Court of Appeals Case No. 41A04-1612-GU-2700 v. Appeal from the Johnson County Superior Court B.M., et al., The Honorable Kevin Barton, Appellees-Plaintiffs Judge Trial Court Cause No. 41D01-1303-GU-29

Altice, Judge.

Case Summary

[1] M.L. (Mother) appeals, pro se, the trial court’s order denying her petition for

termination of a guardianship over her teenage son (Child) held by B.M.

(Grandmother) and M.M. (collectively, Grandparents). Mother presents a

Court of Appeals of Indiana | Memorandum Decision 41A04-1612-GU-2700 | June 21, 2017 Page 1 of 10 number of arguments on appeal, but we determine the essence of her argument

to be that the trial court abused its discretion by denying her petition.

[2] We affirm.

Facts & Procedural History

[3] Child was born February 14, 2001, during the marriage of Mother and T.P.

(Father). Mother and Father divorced while living in Colorado when Child

was about eight years old. Father maintained custody of Child, and Mother

exercised parenting time, which was sometimes sporadic. Mother has never

paid support for Child.

[4] Due to a long history of seizures, Mother does not have a driver’s license. Her

medical condition also affects her ability to maintain employment. She moved

a number of times within Colorado following her divorce.

[5] Father remarried in 2011 and had a daughter with his new wife in Colorado.

From 2011 to 2013, Mother’s visits with Child were infrequent. Throughout

his childhood, Child regularly visited and spent summers with Grandparents –

his paternal grandmother and step-grandfather – in Indiana. Father had a

tumultuous relationship at times with each of his wives, and Grandparents

offered refuge and stability for Child.

[6] In February 2013, Father sent Child to stay with Grandparents. Father then

committed suicide on February 19, 2013, in Colorado. Grandparents notified

Mother and bought a plane ticket for her to move back to Indiana in March.

Court of Appeals of Indiana | Memorandum Decision 41A04-1612-GU-2700 | June 21, 2017 Page 2 of 10 Mother was not healthy enough or financially secure to take custody of Child,

so she consented to Grandparents’ guardianship. On April 1, 2013, an order

appointing Grandparents as guardians over Child was entered.

[7] Mother and Grandparents had a good relationship, and Grandparents did not

restrict Mother’s access to Child. They even assisted in transportation for

parenting time, as Mother did not live in the same town and could not drive.

Mother was always welcome in Grandparents’ home.

[8] Mother met M.S. in July 2013 and introduced him to Child about a month

later, indicating that she was going to marry M.S. and regain custody of Child.

Thereafter, on August 22, Mother forwarded to Grandmother a bio Mother had

received from M.S. when they met online. Something just did not seem right to

Grandmother, so she performed an internet search using M.S.’s name. She

learned that M.S. had committed a string of bank robberies in 2008. M.S. was

described in an article as a “troubled man with mental-health issues” who had

also “victimized relatives”. Exhibits, Exhibit P-5. Further, while at an inpatient

mental health center awaiting trial on the robbery charges, M.S. left the facility

and robbed another bank to cover a bar bill. Along with the imposition of a

four and one-half year federal prison sentence in August 2009, M.S. was

ordered to undergo psychiatric treatment in prison. M.S.’s mental health issues

apparently included “major depression, chronic bi-polar disorder, chronic

schizoaffective disorder, and alcoholism.” Exhibits, Exhibit P-7.

Court of Appeals of Indiana | Memorandum Decision 41A04-1612-GU-2700 | June 21, 2017 Page 3 of 10 [9] After discovering this information, Grandmother became concerned and

notified Mother via email on August 28, 2013. Mother confronted M.S. that

night about his undisclosed criminal past and mental health issues. She then

contacted Grandmother the following day to express that M.S. was a changed

man and deserves a second chance. Grandmother responded in part:

I believe that people can change and that they deserve a chance to prove they are changed. However, I don’t believe that you have known [M.S.] long enough to know for sure if he is changed. And from what you have told me, it doesn’t sound like he was honest with you about his past until you confronted him about my e-mail. The bio you shared with me from [M.S.] certainly does not indicate his criminal past or his mental illness or his alcoholism. I am willing to give him time to prove he is a changed man, but I am not willing to take chances with [Child’s] safety…. It would certainly be in [Child’s] best interest and yours for you to get to know [M.S.] well enough to know for sure if he is being honest with you and that he is changed….

[We] are willing to bring [Child] up to visit as long as [M.S.] is not going to be there; but until we are more comfortable with this situation, we will be staying in Lowell and bringing him back home. We believe this is the best right now since you don’t see anything wrong with this situation.

You have always been welcome in our home, and still are if you want to come here sometimes to visit….

Exhibits, Exhibit P-3. Mother and M.S. married in October 2013.

[10] The relationship between Mother and Grandmother became strained when

Grandmother restricted visits and requested certain information regarding M.S.

Court of Appeals of Indiana | Memorandum Decision 41A04-1612-GU-2700 | June 21, 2017 Page 4 of 10 that Mother and M.S. refused to provide. Grandparents’ home remained open

for visits, but Mother refused to spend the night there “[a]s a matter of

principle” because M.S. was not welcome. Appellant’s Brief at 9. Additionally,

Grandparents drove Child to visit Mother for holidays and special occasions,

but after December 2013, they would not allow overnight stays. In sum,

Mother did not see Child regularly after marrying M.S. Mother’s

communication with Child became primarily through text messages.

[11] On June 1, 2016, more than three years after Grandparents obtained custody of

Child, Mother filed a petition for termination of guardianship. In the petition,

Mother claimed that she was now financially, emotionally, and mentally able to

provide a stable and supportive home for Child.

[12] In a series of text messages in early August 2016, Mother and Child discussed

whether Child wanted to move and live with Mother and M.S. Child indicated

that he was comfortable with his life and wished to stay with Grandparents.

Child was sad because he did not want to hurt Mother or have her blame

Grandmother for his decision.

[13] A brief evidentiary hearing on the petition was held on September 1, 2016, at

which Mother represented herself and Grandparents were represented by

counsel. In addition to Mother and Grandmother testifying, exhibits were

admitted into evidence and the trial court conducted an in-camera interview

with Child – who was then fifteen years old. The court then took the matter

under advisement.

Court of Appeals of Indiana | Memorandum Decision 41A04-1612-GU-2700 | June 21, 2017 Page 5 of 10 [14] On October 3, 2016, the trial court issued its order denying Mother’s motion to

terminate the guardianship. The court recognized that Mother’s epilepsy was

being addressed through medication and that she now had a stable residence as

a result of her marriage. Based on the strong emotional bond between Child

and Grandparents and Child’s lack of a close relationship with Mother,

however, the court concluded that Grandparents had established by clear and

convincing evidence that the guardianship should continue. The court

continued:

A relationship between Mother and [Child] needs to be normalized as a precondition to termination of guardianship. Regular visitation needs to be established. Mother has made clear that her husband will be involved in visitation. From the evidence, the Court does not find that [Grandparents] have established endangerment of the child’s physical condition or significant impairment of emotional development under Indiana Code 31-17-4-1. While [M.S.] does have a prior history of mental illness and criminal convictions, the evidence is that the mental illness is controlled by medication and the character statements offered by Mother into evidence are not adverse to establishment of visitation.

Appendix at 9-10. Accordingly, the court granted Mother parenting time in

accordance with the Indiana Parenting Time Guidelines.

Discussion & Decision

[15] Mother’s pro-se arguments on appeal are all over the place. She asserts that the

trial court’s findings are clearly erroneous but then does not attack any specific

findings of fact. She also claims that the trial court based its decision on

Court of Appeals of Indiana | Memorandum Decision 41A04-1612-GU-2700 | June 21, 2017 Page 6 of 10 “distorted conception of the facts.” Appellant’s Brief at 7. Mother argues that

Grandparents alienated Child from her as a result of the restrictions they

imposed on the exercise of her parenting time. She also asserts, without further

explanation, that the trial court failed to take into account “any of the

undisputed claims of wrong doings of [Grandparents] that have gone

unanswered. i.e. constructive fraud, perjury and contempt.” Id. at 10. Finally,

Mother claims that the trial court was not impartial because it conducted an in-

camera interview of Child and that the court committed fundamental error.

[16] We remind Mother that a pro-se litigant is held to the same standards as a

licensed attorney. See Basic v. Amouri, 58 N.E.3d 980, 983 (Ind. Ct. App. 2016).

Where a litigant fails to present cogent arguments on appeal, we will not

become an advocate for that party or address arguments that are inappropriate

or too poorly developed or expressed to be understood. Id. at 984. Waiver

notwithstanding, we will address whether the trial court abused its discretion by

refusing to terminate the guardianship.

[17] Trial court orders in guardianship proceedings are reviewed for an abuse of

discretion with a preference for granting latitude and deference to our trial

courts in family law matters. In re Guardianship of M.N.S., 23 N.E.3d 759, 765-

66 (Ind. Ct. App. 2014). In determining whether the court abused its discretion,

we review its findings and conclusions, and we may not set aside the findings or

judgment unless they are clearly erroneous. Id. at 766. We will not reweigh the

evidence nor reassess the credibility of witnesses; instead, we will consider the

Court of Appeals of Indiana | Memorandum Decision 41A04-1612-GU-2700 | June 21, 2017 Page 7 of 10 evidence most favorable to the judgment with all reasonable inferences drawn

in favor of the judgment. Id.

[18] “In a custody dispute between a natural parent and a third party, there is a

strong presumption in all cases that the natural parent should have custody of

his or her child.” In re Guardianship of B.W., 45 N.E.3d 860, 866 (Ind. Ct. App.

2015). In a termination of guardianship proceeding, once the natural parent

meets his or her minimal burden of persuasion – which was met in this case –

the guardian must prove by clear and convincing evidence that the child’s best

interests are substantially and significantly served by continued placement with

the guardian. See In re Guardianship of M.N.S., 23 N.E.3d at 766. Our Supreme

Court has explained this burden as follows:

The trial court must be convinced that placement with a person other than the natural parent represents a substantial and significant advantage to the child. The presumption will not be overcome merely because “a third party could provide the better things in life for the child.” In a proceeding to determine whether to place a child with a person other than the natural parent, evidence establishing the natural parent’s unfitness or acquiescence, or demonstrating that a strong emotional bond has formed between the child and the third person, would of course be important, but the trial court is not limited to these criteria. The issue is not merely the “fault” of the natural parent. Rather, it is whether the important and strong presumption that a child’s interests are best served by placement with the natural parent is clearly and convincingly overcome by evidence proving that the child’s best interests are substantially and significantly served by placement with another person.

In re Guardianship of B.H., 770 N.E.2d 283, 287 (Ind. 2002) (citations omitted). Court of Appeals of Indiana | Memorandum Decision 41A04-1612-GU-2700 | June 21, 2017 Page 8 of 10 [19] In the instant case, the trial court determined that Mother was not unfit to care

for Child and that the stability issues that had led to the guardianship no longer

existed. Despite this, the court concluded that it was clearly and convincingly

in Child’s best interests to remain with Grandparents. This conclusion was

based on the strong emotional bond Child had formed with Grandparents and

his lack of a close relationship with Mother. Additionally, the trial court noted

that Child would likely have difficulty transitioning to a public-school setting,

which would occur if Mother obtained custody.

[20] Mother complains that the relationship issues with Child were caused by

Grandparents’ restriction of her parenting time after she married M.S. The

record does not compel – and the trial court did not make – such a finding.

Certainly, Mother bore much of the responsibility for the quality of her

relationship with Child. She and M.S. steadfastly refused to provide

Grandparents with information to alleviate concerns regarding M.S.’s alarming

past. Mother also rejected opportunities to spend time with Child at

Grandparents’ home, where she had always been welcomed. Essentially, for at

least two years, she acquiesced in seeing Child only on special occasions and

otherwise communicating with him through text messages. Mother waited

until June 2016 to file her petition to terminate the guardianship and to

challenge the restrictions imposed on her parenting time. By this time, Child

was fifteen and had formed a much stronger bond with Grandparents than

Mother, who had not had custody of Child since her divorce from Father when

child was an eight-year old.

Court of Appeals of Indiana | Memorandum Decision 41A04-1612-GU-2700 | June 21, 2017 Page 9 of 10 [21] The trial court’s determination was, of course, influenced by its in-camera

interview with Child. Despite Mother’s protests below and on appeal, there

was nothing improper about the trial court speaking to the fifteen-year old

about his desires regarding custody. See Ind. Code § 31-17-2-8(3) (in making

custody determinations, trial court shall consider “[t]he wishes of the child,

with more consideration given to the child’s wishes if the child is at least

fourteen (14) years of age”).

[22] Although the trial court denied the petition to terminate the guardianship, it

recognized the need to establish regular parenting time between Mother and

Child. To this end, the court found that the evidence did not establish that

parenting time by Mother would endanger Child’s physical health or

significantly impair his emotional development. See I.C. § 31-17-4-1(a).

Accordingly, the trial court granted Mother parenting time in accordance with

the Indiana Parenting Time Guidelines.

[23] On this record, we cannot conclude that the trial court abused its discretion

when it denied Mother’s petition to terminate the guardianship.

[24] Judgment affirmed.

[25] Kirsch, J. and Mathias, J., concur.

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