ATTORNEY FOR APPELLANT FILED Patrick L. Jessup Nov 30 2020, 9:02 am
Yoder Kraus & Jessup, P.C. CLERK Indiana Supreme Court Kendallville, Indiana Court of Appeals and Tax Court
IN THE COURT OF APPEALS OF INDIANA
Roxanna Prater, November 30, 2020 Appellant-Respondent. Court of Appeals Case No. 20A-GU-895 v. Appeal from the Noble Circuit Court Dianne Wineland and Steven The Honorable Michael J. Kramer, Wineland, Judge Appellee-Petitioners. Trial Court Cause No. 57C01-1507-GU-29
Pyle, Judge.
Statement of the Case [1] Roxanna Prater (“Mother”) is the parent of an eleven-year-old daughter, R.W.
(“R.W.”), who is currently under a guardianship with her paternal
grandparents, Dianne and Steven Wineland (“Paternal Grandparents”).
Mother filed a petition for visitation with R.W., and the trial court denied it
without a hearing. On appeal, Mother contends that the trial court erred in Court of Appeals of Indiana | Opinion 20A-GU-895 | November 30, 2020 Page 1 of 7 denying her petition without a hearing. Concluding that Mother is correct, we
reverse and remand with instructions for the trial court to grant Mother a
hearing to consider her visitation petition.
[2] We reverse and remand with instructions.
Issue The sole issue for our review is whether the trial court erred in denying Mother’s petition for visitation with R.W. without a hearing.
Facts [3] Mother is the parent of R.W., who was born in September 2009. R.W. began
residing in Paternal Grandparent’s home in 2011. In July 2015, Paternal
Grandparents filed a petition seeking de facto custody of R.W., which the trial
court treated as a petition for guardianship. The trial court held a hearing on
the petition in November 2015 and issued an order appointing Paternal
Grandparents as R.W.’s legal guardians that same month. The trial court’s
order found that “[t]he present circumstances of [Mother] d[id] not permit her
to exercise custody over the minor child” and that Mother had consented to the
guardianship. (App. Vol. 2 at 29). The trial court further ordered that Mother
should have visitation at “reasonable times and places.” (App. Vol. 2 at 30).
[4] In September 2016, Mother, who was incarcerated in the county jail, wrote the
trial court a letter explaining that Paternal Grandparents had not allowed her to
speak on the phone with R.W. Mother, who had been attending parenting
Court of Appeals of Indiana | Opinion 20A-GU-895 | November 30, 2020 Page 2 of 7 classes and A.A. meetings while she was incarcerated, told the trial court that
she was scheduled to be released from jail on December 1, 2016. She asked the
trial court to schedule a hearing “to resolve this matter.” (App. Vol. 2 at 33).
The trial court scheduled a hearing for October 2016. However, because of
Paternal Grandparents’ numerous requests for continuances, which the trial
court granted, the hearing was not held until May 2017. Following the hearing,
which Mother attended, the trial court issued an order “declin[ing] to modify
[the guardianship] order.” (App. Vol. 2 at 11).
[5] Three months later, in August 2017, Mother sent the trial court another letter
requesting visitation with R.W. According to Mother, she had not seen her
daughter in eight months, and Paternal Grandparents were not returning her
calls or texts. Mother, who was again incarcerated in the county jail, was
scheduled to be released in September 2017. The trial court took no action on
Mother’s request.
[6] In 2018 and 2019, Mother sent the trial court additional letters requesting
contact with R.W. For example, in February 2019, Mother told the trial court
that she had not had any contact with R.W. since December 2016. She asked
the trial court to “review [her] requests and let [her] know how to proceed with
this situation.” (App. Vol. 2 at 38). In June 2019, Mother, who was
incarcerated in the Department of Correction, wrote another letter to the trial
court explaining that she was “trying . . . to have a relationship with [R.W.]”
(App. Vol. 2 at 40). She asked the trial court to “please have a court hearing to
Court of Appeals of Indiana | Opinion 20A-GU-895 | November 30, 2020 Page 3 of 7 at least give [her] a chance.” (App. Vol. 2 at 40). The trial court took no action
on Mother’s requests.
[7] In March 2020, Mother filed a pro se petition for visitation with R.W. The trial
court summarily denied the petition without a hearing. Specifically, the
following March 9, 2020, entry in the trial court’s Chronological Case
Summary provides: “After reviewing letter filed by [Mother], Court now
respon[ds] as follows: As guardians of the child, the guardians may decide
what is best for the child.” (App. Vol. 2 at 21).
[8] Mother filed her notice of appeal on March 23, 2020.
Decision [9] As a preliminary matter, we note that Mother appears to believe that her notice
of appeal was not timely filed with the Clerk of the Appellate Courts (“the
Clerk”). However, our review of the trial court’s Chronological Case Summary
reveals that the trial court issued its order denying Mother’s petition for
visitation on March 9, 2020. In addition, our Clerk’s docket reveals that
Mother’s notice of appeal was file-stamped on March 28, 2020. Mother’s
notice of appeal was therefore timely filed. See Appellate Rule 9 (stating that
“[a] party initiates an appeal by filing a Notice of Appeal with [the Clerk]
within thirty (30) days after the entry of a Final Judgment is noted in the
Chronological Case Summary.”) We therefore turn to the merits of Mother’s
appeal.
Court of Appeals of Indiana | Opinion 20A-GU-895 | November 30, 2020 Page 4 of 7 [10] At the outset, we note that Paternal Grandparents did not file an appellate brief
in this matter. We do not develop arguments on behalf of appellees who fail to
file a brief. WindGate Properties., LLC v. Sanders, 93 N.E.3d 809, 813 (Ind. Ct.
App. 2018). In such cases, we will reverse if the appellant establishes prima facie
error, meaning error at first sight or error on the face of it. Id. However, even
in light of this relaxed standard, we still have the obligation to correctly apply
the law to the facts in the record to determine whether reversal is required. Id.
[11] Mother argues that “[t]he trial court’s summary denial of her petition was
contrary to law and policy” and that she “should receive a hearing on her
petition for visitation.” (Mother’s Br. 10). We agree.
[12] “‘Indiana has long recognized that the rights of parents to visit their children is
a precious privilege that should be enjoyed by noncustodial parents.’” Patton v.
Patton, 48 N.E.3d 17, 21 (Ind. Ct. App. 2015) (quoting Duncan v. Duncan, 843
N.E.2d 966, 969 (Ind. Ct. App.2006), trans. denied). “‘As a result a
noncustodial parent is generally entitled to reasonable visitation rights.’” Patton,
48 N.E.3d at 21 (quoting Duncan, 843 N.E.2d at 969). INDIANA CODE § 31-17-
4-1 specifically provides that “a parent not granted custody of the child is
entitled to reasonable parenting time rights, unless the court finds, after a
hearing, that parenting time by the noncustodial parent might endanger the
child’s physical health or significantly impair the child’s emotional
development.” (Emphasis added).
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ATTORNEY FOR APPELLANT FILED Patrick L. Jessup Nov 30 2020, 9:02 am
Yoder Kraus & Jessup, P.C. CLERK Indiana Supreme Court Kendallville, Indiana Court of Appeals and Tax Court
IN THE COURT OF APPEALS OF INDIANA
Roxanna Prater, November 30, 2020 Appellant-Respondent. Court of Appeals Case No. 20A-GU-895 v. Appeal from the Noble Circuit Court Dianne Wineland and Steven The Honorable Michael J. Kramer, Wineland, Judge Appellee-Petitioners. Trial Court Cause No. 57C01-1507-GU-29
Pyle, Judge.
Statement of the Case [1] Roxanna Prater (“Mother”) is the parent of an eleven-year-old daughter, R.W.
(“R.W.”), who is currently under a guardianship with her paternal
grandparents, Dianne and Steven Wineland (“Paternal Grandparents”).
Mother filed a petition for visitation with R.W., and the trial court denied it
without a hearing. On appeal, Mother contends that the trial court erred in Court of Appeals of Indiana | Opinion 20A-GU-895 | November 30, 2020 Page 1 of 7 denying her petition without a hearing. Concluding that Mother is correct, we
reverse and remand with instructions for the trial court to grant Mother a
hearing to consider her visitation petition.
[2] We reverse and remand with instructions.
Issue The sole issue for our review is whether the trial court erred in denying Mother’s petition for visitation with R.W. without a hearing.
Facts [3] Mother is the parent of R.W., who was born in September 2009. R.W. began
residing in Paternal Grandparent’s home in 2011. In July 2015, Paternal
Grandparents filed a petition seeking de facto custody of R.W., which the trial
court treated as a petition for guardianship. The trial court held a hearing on
the petition in November 2015 and issued an order appointing Paternal
Grandparents as R.W.’s legal guardians that same month. The trial court’s
order found that “[t]he present circumstances of [Mother] d[id] not permit her
to exercise custody over the minor child” and that Mother had consented to the
guardianship. (App. Vol. 2 at 29). The trial court further ordered that Mother
should have visitation at “reasonable times and places.” (App. Vol. 2 at 30).
[4] In September 2016, Mother, who was incarcerated in the county jail, wrote the
trial court a letter explaining that Paternal Grandparents had not allowed her to
speak on the phone with R.W. Mother, who had been attending parenting
Court of Appeals of Indiana | Opinion 20A-GU-895 | November 30, 2020 Page 2 of 7 classes and A.A. meetings while she was incarcerated, told the trial court that
she was scheduled to be released from jail on December 1, 2016. She asked the
trial court to schedule a hearing “to resolve this matter.” (App. Vol. 2 at 33).
The trial court scheduled a hearing for October 2016. However, because of
Paternal Grandparents’ numerous requests for continuances, which the trial
court granted, the hearing was not held until May 2017. Following the hearing,
which Mother attended, the trial court issued an order “declin[ing] to modify
[the guardianship] order.” (App. Vol. 2 at 11).
[5] Three months later, in August 2017, Mother sent the trial court another letter
requesting visitation with R.W. According to Mother, she had not seen her
daughter in eight months, and Paternal Grandparents were not returning her
calls or texts. Mother, who was again incarcerated in the county jail, was
scheduled to be released in September 2017. The trial court took no action on
Mother’s request.
[6] In 2018 and 2019, Mother sent the trial court additional letters requesting
contact with R.W. For example, in February 2019, Mother told the trial court
that she had not had any contact with R.W. since December 2016. She asked
the trial court to “review [her] requests and let [her] know how to proceed with
this situation.” (App. Vol. 2 at 38). In June 2019, Mother, who was
incarcerated in the Department of Correction, wrote another letter to the trial
court explaining that she was “trying . . . to have a relationship with [R.W.]”
(App. Vol. 2 at 40). She asked the trial court to “please have a court hearing to
Court of Appeals of Indiana | Opinion 20A-GU-895 | November 30, 2020 Page 3 of 7 at least give [her] a chance.” (App. Vol. 2 at 40). The trial court took no action
on Mother’s requests.
[7] In March 2020, Mother filed a pro se petition for visitation with R.W. The trial
court summarily denied the petition without a hearing. Specifically, the
following March 9, 2020, entry in the trial court’s Chronological Case
Summary provides: “After reviewing letter filed by [Mother], Court now
respon[ds] as follows: As guardians of the child, the guardians may decide
what is best for the child.” (App. Vol. 2 at 21).
[8] Mother filed her notice of appeal on March 23, 2020.
Decision [9] As a preliminary matter, we note that Mother appears to believe that her notice
of appeal was not timely filed with the Clerk of the Appellate Courts (“the
Clerk”). However, our review of the trial court’s Chronological Case Summary
reveals that the trial court issued its order denying Mother’s petition for
visitation on March 9, 2020. In addition, our Clerk’s docket reveals that
Mother’s notice of appeal was file-stamped on March 28, 2020. Mother’s
notice of appeal was therefore timely filed. See Appellate Rule 9 (stating that
“[a] party initiates an appeal by filing a Notice of Appeal with [the Clerk]
within thirty (30) days after the entry of a Final Judgment is noted in the
Chronological Case Summary.”) We therefore turn to the merits of Mother’s
appeal.
Court of Appeals of Indiana | Opinion 20A-GU-895 | November 30, 2020 Page 4 of 7 [10] At the outset, we note that Paternal Grandparents did not file an appellate brief
in this matter. We do not develop arguments on behalf of appellees who fail to
file a brief. WindGate Properties., LLC v. Sanders, 93 N.E.3d 809, 813 (Ind. Ct.
App. 2018). In such cases, we will reverse if the appellant establishes prima facie
error, meaning error at first sight or error on the face of it. Id. However, even
in light of this relaxed standard, we still have the obligation to correctly apply
the law to the facts in the record to determine whether reversal is required. Id.
[11] Mother argues that “[t]he trial court’s summary denial of her petition was
contrary to law and policy” and that she “should receive a hearing on her
petition for visitation.” (Mother’s Br. 10). We agree.
[12] “‘Indiana has long recognized that the rights of parents to visit their children is
a precious privilege that should be enjoyed by noncustodial parents.’” Patton v.
Patton, 48 N.E.3d 17, 21 (Ind. Ct. App. 2015) (quoting Duncan v. Duncan, 843
N.E.2d 966, 969 (Ind. Ct. App.2006), trans. denied). “‘As a result a
noncustodial parent is generally entitled to reasonable visitation rights.’” Patton,
48 N.E.3d at 21 (quoting Duncan, 843 N.E.2d at 969). INDIANA CODE § 31-17-
4-1 specifically provides that “a parent not granted custody of the child is
entitled to reasonable parenting time rights, unless the court finds, after a
hearing, that parenting time by the noncustodial parent might endanger the
child’s physical health or significantly impair the child’s emotional
development.” (Emphasis added). Pursuant to this statutory provision, the
trial court erred when it denied Mother’s visitation petition without a hearing.
Court of Appeals of Indiana | Opinion 20A-GU-895 | November 30, 2020 Page 5 of 7 [13] We further note that in Manis v. McNabb, 104 N.E.3d 611, 621 (Ind. Ct. App.
2018), this Court held that “a trial court has the authority to determine whether
parenting time is warranted and order reasonable parenting time for a parent
whose child is placed with a guardian.” We also held that when a trial court
orders parenting time in a guardianship case, it cannot allow the guardian, who
often has a personal stake in the matter, to determine the parent’s parenting
time with her child during the course of the guardianship. Id. We cautioned
that doing so has the potential to deprive the parent and child of time together
and an opportunity to develop a meaningful relationship and bond. Id. We
further explained that if the parties are unable to agree on their own to a
parenting-time plan that is in the best interests of the child, then the trial court
must take an active role in developing one. Id. See also Blankenship v. Duke, 132
N.E.3d 410, 413 (Ind. Ct. App. 2019) (holding that “[b]y making the parties
agree upon parenting time, the trial court has essentially allowed the maternal
grandparents to determine Father’s parenting time with Children. It was error
for the court to do so.”).
[14] Because the trial court erroneously failed to grant Mother a hearing on her
visitation petition, we reverse and remand with instructions for the trial court to
hold a hearing on Mother’s petition. We further note that the “best practice” is
for the trial court to make specific findings in support of its parenting time
order. See Manis, 104 N.E.3d at 621.
Court of Appeals of Indiana | Opinion 20A-GU-895 | November 30, 2020 Page 6 of 7 [15] Reversed and remanded with instructions.
[16] Vaidik, J., and Brown, J., concur.
Court of Appeals of Indiana | Opinion 20A-GU-895 | November 30, 2020 Page 7 of 7