IN RE GUARDIANSHIP OF LL

• Decision Date: 21 February 2001
• Docket Number: No. 40A01-0008-CV-253.,40A01-0008-CV-253.
• Citation: 745 N.E.2d 222
• Parties: In re the Matter of the GUARDIANSHIP OF L.L. and J.L. Trudy (Littrell) Froelich, Appellant-Natural Mother, v. Wilma Clark, Appellee-Guardian.
• Court: Indiana Appellate Court

745 N.E.2d 222

In re the Matter of the GUARDIANSHIP OF L.L. and J.L.

Trudy (Littrell) Froelich, Appellant-Natural Mother, v. Wilma Clark, Appellee-Guardian.

No. 40A01-0008-CV-253.

Court of Appeals of Indiana.

February 21, 2001.

Transfer Denied June 20, 2001.

Richard S. Eynon, Eynon, Harmon, Rocker & Glover, P.C., Columbus, IN, Attorney for Appellant.

Michael L. Rogers, Rogers & Dove, North Vernon, IN, Attorney for Appellee.

OPINION

BARNES, Judge

Case Summary

Trudy Froelich, the mother of nine-year-old L.L., appeals the trial court's denial of her petition to terminate Wilma Clark's guardianship of L.L., her paternal grandchild. We reverse and remand.

Issue

We restate the sole issue presented as whether the findings entered by the trial court support its decision to deny Trudy's petition to terminate guardianship.

Facts

Trudy filed a petition to terminate Wilma's guardianship of L.L. in September 1998. The trial conducted a hearing on May 23, 2000, and entered the following findings on June 19, 2000. These findings adequately set forth additional facts of the case:

1.) In the fall of 1992, Jerry Littrell, Wilma's son and Trudy were married and had returned from Florida to Jennings County with their two (2) sons, [J.L.], born January 1, 1989 and [L.L.], born February 8, 1992.

2.) Shortly after returning to Jennings County, in 1992, the two (2) young boys were left in Wilma's care, primarily due to Jerry and Trudy's tumultuous lifestyle including substance and alcohol abuse. Wilma was appointed temporary guardian of both her grandsons on August 10, 1992. On October 13, 1992, Wilma was appointed permanent guardian, apparently after an evidentiary hearing where both Wilma and Trudy were represented by counsel.

3.) On October 8, 1993 and May 4, 1994, Trudy attempted to dissolve the guardianship of the boys, but after hearing, failed. However, on November 7, 1994, [J.L.] only was returned to her care and has been with Trudy since. [L.L.] remains under the guardianship of Wilma. Again on May 5, 1995, Trudy tried to dissolve the guardianship concerning [L.L.], and again lost her bid.

5.)[sic] [L.L.] is now eight (8) years of age and a third grader at Graham Creek Elementary School in Jennings County. He is an A/B student. He lives with Wilma and Wilma's daughter, Patty, in a farmhouse near Commiskey, Indiana. Wilma is divorced, but she is employed and works 8:30 a.m. to 4:30 p.m. She is sixty (60) years of age.

6.) Trudy, now age thirty-one (31), remarried to Matt Froelich in November of 1998. [J.L.] lives with them in Bartholomew County. Trudy works at Muscatatuck State Developmental Center earning Eleven Dollars and Sixty-eight Cents ($11.68) per hour. She works 6:30 a.m. to 2:45 p.m., 37.5 hours per week. Matt is a construction manager earning around Seventy-five Thousand Dollars ($75,000.00) per year. Matt appears to be a successful gentleman genuinely concerned and involved, not only with his own children, but also [J.L.] and [L.L.]. Matt, Trudy and [J.L.] live in a very nice country home with plenty of play space and good neighbors with young children.

7.) Jerry Littrell, [J.L.] and [L.L.]'s father, sees them on rare occasions and is virtually a nonexistent part of their lives.

8.) Wilma sees [J.L.] fairly regularly, and Trudy does likewise with [L.L.], although it isn't clear exactly how often these young brothers spend time together. They do get along well when together.

9.) It is undisputed that Wilma is very emotionally attached to [L.L.] and he to her.

10.) It is further undisputed that Trudy has been successful in rearing [J.L.]. He is an articulate young man and a good student.

11.) [L.L.] used a bottle at bedtime until age four (4). As late as December, 1999, he slept in the same bed as Wilma. Wilma explains this was due to her concern for his health, primarily respiratory problems.

12.) Trudy currently takes Prozac for depression.

13.) Mike Morgan, Bill Howard and Ron and Kim Puckett, all professed their belief Matt Froelich and Trudy were good parents, good workers, and had no reservation recommending that [L.L.] live with Trudy.

14.) Bill Flowers, Ruby Miller, and Albert Sparkman all similarly testified about their favorable observations of Wilma and [L.L.] together and opined [L.L.] was fine living with Wilma.

15.) A custody evaluation performed by Dianne Farrar in the fall of 1999 recommends [L.L.] remain with Wilma, but also recommends significantly more time be spent by [L.L.] with Trudy as [L.L.] gets older.

16.) Trudy has remained drug and alcohol free for around six (6) years and attends Alcoholics Anonymous.

17.) [L.L.] is not involved in organized athletics or Scouting.

18.) Wilma and Trudy appear to have a good relationship with one another but for this ongoing dispute regarding [L.L.].

Record pp. 56-58.

Based on these findings, the trial court denied Trudy's petition to terminate guardianship as to L.L. It did, however, terminate the guardianship of J.L., which had never previously been officially terminated. Trudy has now appealed; Wilma does not appeal the termination of J.L.'s guardianship.

Analysis

We have been asked to resolve a case involving the tension between the rights of a natural parent to raise her child, the "best interests" of that child, and the interests of a third party who has cared for and who desires to continue caring for the child. Trudy requested that the trial court enter findings and conclusions pursuant to Indiana Trial Rule 52, so we employ a two-tiered standard of review. We first determine whether the evidence supports the findings, and then we consider whether the findings support the judgment. In re Paternity of J.A.C., 734 N.E.2d 1057, 1059 (Ind.Ct.App.2000). The trial court's findings and judgment will not be set aside unless they are clearly erroneous. Id. A judgment is clearly erroneous when it is unsupported by the conclusions drawn, and conclusions are clearly erroneous when they are unsupported by findings of fact. Id. Trudy does not allege that the findings entered by the trial court are unsupported by the evidence, but claims that those findings do not support the denial of her petition to terminate guardianship.

Initially, we observe that the termination of guardianship statute simply provides that termination may occur whenever it is no longer necessary for any reason. Ind.Code § 29-3-12-1(c)(4). Strictly applying this statute, it is undisputed that the original grounds for granting Wilma guardianship over L.L.—i.e., because Trudy and her ex-husband were drug and alcohol abusers and fought regularly— were no longer present when Trudy filed the current petition to terminate guardianship. However, our review of the case law in this area indicates that we generally have applied a more detailed test than might arguably be required by the plain language of the statute—whether the original grounds for granting the guardianship still exist—to determine whether a third party guardianship of a child should be terminated. This appears to be based on the concern that a guardianship proceeding in such circumstances is, in essence, a child custody proceeding that raises important concerns about parental rights and the "best interests" of children.

At the outset we acknowledge that the opinions rendered by this court in the area of natural parent-third party custody disputes over the past three decades, whether those disputes have arisen out of guardianship proceedings or other custody proceedings, have not been entirely consistent. It is well established that when a parent initiates an action to obtain custody, a nonparent seeking to retain custody must bear the burden of overcoming the parent's presumptively superior right to custody. Hunt v. Whalen, 565 N.E.2d 1109, 1110-11 (Ind.Ct.App.1991). How this presumption is rebutted, however, has been subject to differing interpretations. The starting point in our analysis is Hendrickson v. Binkley, 161 Ind.App. 388, 316 N.E.2d 376 (1974), cert. denied, 423 U.S. 868, 96 S.Ct. 131, 46 L.Ed.2d 98 (1975), in which we set forth the following three-part test for analyzing such disputes:

First, it is presumed it will be in the best interests of the child to be placed in the custody of the natural parent. Secondly, to rebut this presumption it must be shown by the attacking party that there is, (a) unfitness, (b) long acquiescence, or (c) voluntary relinquishment such that the affections of the child and third party have become so interwoven that to sever them would seriously mar and endanger the future happiness of the child. The third step is that upon a showing of one of these above three factors, then it will be in the best interests of the child to be placed with the third party.

Id. at 393-94, 316 N.E.2d at 380. Furthermore, we held that evidence to rebut the presumption in favor of custody in the natural parent had to be "clear and cogent." Id. at 395-96, 316 N.E.2d at 381.

Another panel of this court expressly rejected this allegedly "mechanical approach" to resolving natural parent-third party custody disputes in Turpen v. Turpen, 537 N.E.2d 537, 539-40 n. 2 (Ind.Ct. App.1989). The Turpen court held that "the question before us then is whether there is any evidence in favor of the trial court's determination that the presumption the interest of the child would best be served by placing him in the custody of the natural [parent] had been sufficiently rebutted by the evidence." Id. at 539 (emphasis added). Turpen also failed to mention the Hendrickson court's requirement that the parental preference presumption could only be rebutted by "clear and cogent" evidence.

Cases following Turpen have split on the extent to which it has been followed. Some have continued to adhere strictly to the Hendrickson "mechanical approach." See Matter of Guardianship of R.B., 619 N.E.2d 952, 954 (Ind.Ct.App.1993)

. Others have wholeheartedly adopted Turpen's holding. See In re Paternity of L.K.T., 665 N.E.2d...