EN Ex Rel. Nesbitt v. RISING SUN-OHIO CTY. COMMUNITY SCH. CORP.

• Court: Indiana Appellate Court
• Writing for the Court: RUCKER.
• Citation: EN Ex Rel. Nesbitt v. RISING SUN-OHIO CTY. COMMUNITY SCH. CORP., 720 N.E.2d 447 (Ind. App. 1999)
• Decision Date: 07 December 1999
• Docket Number: No. 58A01-9903-CV-81.,58A01-9903-CV-81.
• Parties: E.N., By Her Parent And Next Friend, Patricia NESBITT, and Patricia Nesbitt, Individually, Appellants-Respondents, v. RISING SUN-OHIO COUNTY COMMUNITY SCHOOL CORP., and Ripley-Ohio-Dearborn Special Education Cooperative, Appellees-Petitioners.

720 N.E.2d 447

E.N., By Her Parent And Next Friend, Patricia NESBITT, and Patricia Nesbitt, Individually, Appellants-Respondents, v. RISING SUN-OHIO COUNTY COMMUNITY SCHOOL CORP., and Ripley-Ohio-Dearborn Special Education Cooperative, Appellees-Petitioners.

No. 58A01-9903-CV-81.

Court of Appeals of Indiana.

December 7, 1999.

Sherwood P. Hill, Clinton E. Blanck, Maurer Rifkin & Hill, P.C., Indianapolis, Indiana, Attorneys for Appellant.

Thomas E. Wheeler II, Kevin S. Smith, Bose McKinney & Evans, Indianapolis, Indiana, Attorneys for Appellee.

OPINION

RUCKER, Judge

Case Summary

When Patricia Nesbitt (Mother) refused to cooperate with the Rising Sun-Ohio County Community School Corporation and the Ripley-Ohio-Dearborn Special Education Cooperative (referred to collectively as "School") concerning the education of her sixteen-year-old developmentally disabled daughter, E.N., School filed a petition seeking to find Mother in contempt. School also filed a petition seeking the appointment of a limited guardian over E.N. for purposes of making educational decisions on her behalf. The trial court determined that Mother had absolved herself of contempt, but granted School's petition for a guardianship. Mother and E.N. now appeal raising three issues for our review. We address a dispositive issue: did the trial court abuse its discretion in granting the guardianship petition? We conclude that it did and therefore reverse.

Background

Both federal and state laws guarantee a free and appropriate education for disabled children.¹ The law seeks to provide a disabled child with an educational program in the least restrictive setting possible given the child's disabilities. Accordingly, a public school is required to determine whether a child is disabled under applicable rules and statutes, develop individual educational programs (IEP) for each disabled child, and offer support services that will allow the child to benefit from the education.² The IEP is developed by members of a Case Conference Committee (CCC), which includes representatives from the school, the student's teacher, the student if appropriate, and the parent.

Facts and Procedural History

E.N. is a sixteen-year-old student enrolled in Rising Sun High School. She has a lifelong history of seizures secondary to a condition of chronic status encephalopathy. The seizures have proved difficult to control with medication. As a result of her condition, E.N. has experienced developmental delay, behavioral problems, and difficulty attending and functioning in school. E.N.'s disability requires special educational considerations and accommodations. In 1996, during E.N.'s transition from middle school to high school, School opposed the accommodations Mother felt should be included in her daughter's IEP. As a result tension developed between Mother and School. Among other things Mother refused to agree to the IEPs proposed by School and refused to attend several CCC meetings scheduled to discuss them. Mother also refused a request that she provide School a copy of E.N.'s medical records.

On August 18, 1997, in response to a proposed IEP developed by School, Mother initiated a due process hearing with the Indiana Department of Education. Mother requested that an Independent Hearing Officer be appointed to review whether School was providing E.N. a free and appropriate public education as required by law.³ The Hearing Officer issued three separate preliminary discovery orders requiring Mother to release E.N.'s medical records. Mother refused to comply with each order. School then petitioned the Ohio Superior Court under the Administrative Orders and Procedures Act to enforce the Hearing Officer's orders. School also sought the appointment of a guardian for E.N. More specifically School alleged that E.N. was incapacitated in that she was a minor and that a limited educational guardian was needed to represent the minor relating to the following:

Participating in case conferences, annual case review, or other parent-teacher conferences;

Granting or denying written permission for evaluation, placement, or change of placement as well as permission for the student's physician to communicate with the School and/or its evaluators;

Accessing and reviewing the student's educational and medical records and sharing them with the school;

Requesting mediation, due process hearings, filing complaints, or terminating such proceedings; and

Exercising any other rights a parent has in behalf of a student under 511 IAC 7-3-1 et seq., Indiana law, or federal law.

R. at 52-53. The trial court ordered Mother to sign a release that would allow School to gain access to E.N.'s medical records. Mother initially declined. However, after School sought to have Mother held in contempt, she ultimately acquiesced. After a hearing, the trial court found that Mother had absolved herself of contempt. However the trial court ordered the appointment of a limited educational guardian to act for E.N. This appeal followed.

Discussion and Decision

At Mother's request the trial court entered findings of fact and conclusions thereon pursuant to Ind. Trial Rule 52(A). All findings and orders of the trial court in guardianship proceedings are within the trial court's discretion. Ind. Code § 29-3-2-4. Thus, we will review those findings under an abuse of discretion standard. In re the Guardianship of V.S.D., 660 N.E.2d 1064, 1066 (Ind.Ct.App. 1996). In determining whether the trial court abused its discretion, we look to the trial court's finding of fact required by Ind. Trial Rule 52. See Northern Indiana Pub. Service v. Dozier, 674 N.E.2d 977, 989 (Ind.Ct.App. 1996) The findings will not be set aside unless clearly erroneous. Id. Findings of fact are clearly erroneous when the record lacks any facts or reasonable inferences to support them. DeHaan v. DeHaan, 572 N.E.2d 1315, 1320 (Ind.Ct. App.1991). Further, because of the two tiered standard of review applicable here, we also will not set aside the judgment unless clearly erroneous. McGinley-Ellis v. Ellis, 638 N.E.2d 1249, 1252 (Ind.1994). A judgment is clearly erroneous when unsupported by the findings of fact and conclusions thereon. DeHaan, 572 N.E.2d at 1320.

Ind.Code § 29-3-5-1 et seq. controls proceedings for the appointment of a guardian and provides in relevant part "[a]ny person may file a petition for the appointment of a person to serve as guardian for an incapacitated person or minor...." Ind.Code § 29-3-5-1(a). The trial court is required to appoint a guardian if it is alleged and the trial 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 a minor." Ind.Code § 29-3-5-3(a). In addition, the trial court may limit the responsibilities and powers of the guardian. Ind.Code § 29-3-8-8. In this case the trial court made the following relevant findings:

[E.N.] is a 16 year old female with life-long history of difficult to control seizures, secondary to a condition of chronic static encephalopathy, who also experiences developmental delay and behavior problems related to her condition.

[E.N.]'s medical condition has had a negative effect on her ability to attend school and to function in school.

Mrs. Nesbitt has refused and failed [sic] case conferences which were for the purpose of assessing [E.N.]'s condition and to attempt to provide solutions for [E.N.]'s problems.

Mrs. Nesbitt has consistently obstructed the school corporation with reference to [E.N.]'s education.

That it is in the best interest of [E.N.] for a limited guardian to be appointed for [E.N.] for the limited purpose of determining the educational program for [E.N.]

R. at 216-217. Although School alleged, the trial court did not specifically find that E.N. was either incapacitated or a minor. This is not particularly problematic in that the trial court found that E.N. was 16 years of age. See South Bend Community Schools Corp. v. Widawski, 622 N.E.2d 160, 162 (Ind.1993) (defining "incapacitated person" to include persons under eighteen years of age). More problematic, however, is that the trial court did not find that the appointment of a guardian was "necessary" as a means to provide for the care or supervision of E.N. Rather, the trial court determined that the appointment of a limited guardian was in E.N.'s best interest.

We observe that the best interest standard is applicable in guardianship cases involving custody of a minor. See, e.g., Matter of Guardianship of R.B., 619 N.E.2d 952, 954 (Ind.Ct.App.1993) ("In disputes between natural parents and third parties, a presumption exists that it is in the best interests of the child to be placed in the custody of the natural parent."). However our research reveals no Indiana cases concerning non-custodial limited guardianships, and hence no discussion of the best interest standard in that context. We have recognized that the right of parents to maintain custody and control of their children is subject to the children's welfare and best interests. Styck v. Karnes, 462 N.E.2d 1327, 1330 (Ind.Ct. App.1984); see also E.P. v. Marion County Office of Family and Children, 653 N.E.2d 1026, 1032 (Ind.Ct.App.1995) (a parent's constitutionally protected right to raise her child "must at all times yield to the child's best interest as determined by the courts of this state."). We have also held that the "polestar of every statute governing the parent-child relationship is the best interests of the child." Walker v. Campbell, 711 N.E.2d 42, 50 (Ind.Ct.App. 1999), reh'g denied (case concerning Indiana's adoption statute). Hence, although appointment of a guardian under Ind.Code § 29-3-5-3 does not specifically require such a finding, we conclude that the best interest of the child or incapacitated person is implicit in ...