Guardianship of R.B., Matter of

• Court: Indiana Appellate Court
• Writing for the Court: BARTEAU; SHARPNACK, C.J., and GARRARD
• Citation: Guardianship of R.B., Matter of, 619 N.E.2d 952 (Ind. App. 1993)
• Decision Date: 31 August 1993
• Docket Number: No. 48A05-9205-CV-152,48A05-9205-CV-152
• Parties: In the Matter of the GUARDIANSHIP OF R.B., Minor. Sharon GILMORE, Appellant-Guardian, v. Lora Brackett TUBBS, Appellee-Natural Mother.

Page 952

619 N.E.2d 952

In the Matter of the GUARDIANSHIP OF R.B., Minor Sharon GILMORE, Appellant-Guardian, v. Lora Brackett TUBBS, Appellee-Natural Mother.

No. 48A05-9205-CV-152.

Court of Appeals of Indiana Fifth District.

Aug. 31, 1993.

David W. Stone IV, Stone Law Office & Legal Research, Anderson, for appellant-guardian.

Douglas R. Long, Anderson, for appellee-natural mother.

BARTEAU, Judge.

Sharon Gilmore appeals the decision of the trial court terminating her guardianship over R.B. We affirm.

FACTS

R.B., age six at the time of the hearing in this case, is the daughter of Lora Tubbs. At the time of R.B.'s birth, August 16, 1985, Lora was married and living in South Carolina. Because of marital difficulties, Lora moved back to Indiana with R.B. shortly after the birth. Lora and R.B. moved in with Lora's mother, Sharon, and her step-father. After approximately seven months, Lora moved out of Sharon's home and left R.B. in Sharon's care. On September 11, 1987, when R.B. was two, Sharon was appointed her guardian with Lora's consent. On January 23, 1991, Lora filed a petition to terminate the guardianship and asked for R.B.'s return. The trial court terminated the guardianship and held that it was in R.B.'s best interests to be returned to Lora's custody and control.

BURDEN OF PROOF

A question is presented on appeal as to which party bore the burden of proof, although the record is devoid of any indication that this issue was disputed at trial. Nevertheless, for the sake of clarification, we will address the matter. 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. In order to rebut this presumption, the third-party must show: (1) unfitness of the natural parent; (2) long acquiescence; or (3) voluntary relinquishment such that the child and third party have become so interwoven that to sever the living arrangement would seriously mar and endanger the future happiness of the child. Hendrickson v. Binkley (1974), 161 Ind.App. 388, 316 N.E.2d 376. If one of the above factors is proven, then the question becomes whether it is in the best interests of the child to be placed in the custody of the third party. Id.

Sharon cites Harris v. Johnson (1971), 149 Ind.App. 512, 273 N.E.2d 779, for her contention that Lora bore the burden of proof in this case. Harris provides: "However, the natural father had the burden of proof and persuasion in this case." This statement is without citation to authority and is contrary to the majority of case law in this area. See Matter of Guardianship of Riley (1992), Ind.App., 597 N.E.2d 995; Hunt v. Whalen (1991), Ind.App., 565 N.E.2d 1109; In re Custody of McGuire (1985), Ind.App., 487 N.E.2d 457; Styck v. Karnes (1984), Ind.App., 462 N.E.2d 1327; Hendrickson, 161 Ind.App. 388, 316 N.E.2d 376. Thus, we decline to give it precedential value.

Sharon also makes an argument that Lora failed to establish adequate grounds for removal of a guardian. However, this was not a case of removing a guardian; rather, it was one for termination of the guardianship. The distinction between the two is that the former deals with the fitness of the guardian and the latter with the necessity for continuation of the guardianship. See Ind.Code 29-3-12-4(a) and I.C. 29-3-12-1. The termination of guardianship statute provides that the court may terminate a guardianship if the guardianship is no longer necessary for any reason. I.C. 29-3-12-1(c)(4). Because sufficient evidence was presented to the effect the guardianship was no longer necessary, the requirements of the appropriate statute were satisfied.

SUFFICIENCY OF THE EVIDENCE

Although presented as six separate issues by appellant, the only real issue raised is whether the evidence was sufficient to support the judgment of the trial court. The trial court entered the following findings of fact:

1. The guardianship was created with Lora's consent on September 11, 1987.

2. [R.B.] has lived with Sharon since [R.B.] was approximately nine days old. During the first seven months Lora lived in the household as well.

3. Lora voluntarily left [R.B.] with Sharon but was a frequent visitor to Sharon's home when she would visit for meals or to do laundry.

4. Lora maintained a good relationship with [R.B.] and took her on walks and for visits regularly.

5. [R.B.] has been well cared for and supported by Sharon.

6. When Lora moved from Sharon's home she had a series of low income jobs and moved her residence frequently.

7. Lora has maintained her relationship with [R.B.] through frequent visits and the bond between them has not been broken.

8. Lora has been at her current job for over one year, earns approximately Eight Dollars ($8.00) per hour and is off on weekends.

9. Lora has lived in her current home for approximately two years.

10. Lora has remarried on August 31, 1990 and has a good relationship with her husband, Scott. Scott has a good relationship with [R.B.].

11. Dr. Susan Spencer has described Lora as well adjusted mentally and emotionally.

12. It is in [R.B.]'s best interest that she be returned to Lora and that the guardianship be terminated.

It is not apparent from the judgment whether the trial court found that one of the factors enumerated in Hendrickson had been proven, but that it was nevertheless in the best interests of R.B. to have the guardianship terminated, or whether the trial court found that Sharon had failed to prove the existence of any of the Hendrickson factors. This lack of clarity, however, does not hinder our review because sufficient evidence was presented to sustain the judgment of the trial court under either scenario.

A child custody determination falls within the sound discretion of the trial court and such a determination will not be disturbed on appeal absent an abuse of discretion. Matter of Guardianship of Riley, 597 N.E.2d at 997. "Appellate courts are reluctant to reverse a trial court's determination concerning child custody unless the determination is clearly erroneous and contrary to the logic and effect of the evidence." Id. at 997. "While Indiana courts can award custody of a child to someone other than the parents, such awards usually are made only following a determination that the parents are either unfit or have all but abandoned the child to the care of that third person." Id. at 997. While conflicting evidence was presented, a review of the record reveals ample support...