J.E. v. W.L. (In re In re I.E.)

• Decision Date: 17 October 2013
• Docket Number: No. 72A01–1212–JP–567.,72A01–1212–JP–567.
• Citation: 997 N.E.2d 358
• Parties: In re the Matter of I.E.: J.E., Appellant, v. W.L. and R.L. and N.V., Appellees.
• Court: Indiana Appellate Court

997 N.E.2d 358

In re the Matter of I.E.:J.E., Appellant,

v.W.L. and R.L. and N.V., Appellees.

No. 72A01–1212–JP–567.

Court of Appeals of Indiana.

Aug. 14, 2013.

Ordered Published Oct. 11, 2013.

Rehearing Denied Oct. 17, 2013.

R. Patrick Magrath, Alcorn Goering & Sage, LLP, Madison, IN, Attorney for Appellant.

Bryan L. Ciyou, Ciyou & Dixon, P.C., Indianapolis, IN, Attorney for Appellees.

OPINION

FRIEDLANDER, Judge.

J.E. (Father) is the biological father of I.E.; N.V. (Mother) is I.E.'s biological mother. W.L. and R.L. (Guardians) were former guardians of I.E. This appeal involves questions concerning custody and visitation rights of the parties with respect to the child. It appears that the Guardians and Mother are joined as appellees in this appeal, and, unless otherwise indicated, we will refer to them collectively as the Appellees. For the sake of clarity, we will first address issues presented by the Appellees upon cross-appeal. Those consolidated, restated issues are:

1. Did the trial court apply an incorrect standard in determining whether to grant Father's motion for change of custody, and did the trial court err in granting Father's motion?

2. Did the trial court err in granting visitation rights to the Guardians?

We restate the final issue, presented by Father upon direct appeal, as follows:

3. Did the trial court err in declining to grant reasonable visitation to Mother?

We affirm and reverse in part.

The facts are that I.E. was born sometime in September 2009 to Mother. Mother was married to another man, not Father, at the time. The Guardians took I.E. home from the hospital with the consent of Mother. On September 18, 2009, the Guardians filed a petition to adopt I.E. On October 6, 2009, Father filed a petition to establish paternity of I.E. under cause number 72C01–0910–JP–68 (the paternity action). On November 5, 2009, the Guardians petitioned to intervene in the paternity action. That petition was granted. On November 6, 2009, the Guardians filed a guardianship action under cause number 72 C01–091–GU–40 (the guardianship action). Shortly thereafter, Father filed a petition to intervene in the guardianship action. From that point on, the two causes were addressed at the same time.

The trial court granted the Guardians' petition to establish temporary guardianship of I.E. Following a March 18, 2010 hearing, the trial court found that Father was I.E.'s father. I.E. remained in the sole care and custody of the Guardians until April 1, 2010 when Father was granted visitation pursuant to the Indiana Parenting Time Guidelines. On May 7, 2010, the parties reached an agreement following mediation. Pursuant to that agreement, the Guardians would have “joint legal and physical custody” of I.E., and Father and the Guardians would have specific times allocated for parenting time. Appellant's Appendix at 27. Mother would also have parenting time, which she would exercise during the Guardians' parenting time. Under this arrangement, the Guardians and Mother had I.E. approximately eight days every two weeks, while Father had the remainder. On December 15, 2011, Father filed petitions to terminate the guardianship and to modify custody. After granting two continuances at Mother's request, the trial court held a hearing on May 15, 2012. On August 31, 2012, the trial court appointed a guardian ad litem for I.E. A second hearing was held on November 8, 2012.

On December 4, 2012 the trial court issued an order terminating the guardianship and granting custody of I.E. to Father. Further, the court granted visitation rights to the Guardians in the paternity action, as reflected in the following:

4. All future proceedings concerning the Child shall be conducted under Cause No. 72 C01–0910–JP–68. The Guardians are a party to the paternity case.

* * * * * *

7. Having found that there is no legal reason for the continuation of the guardianship, there should be a transition to where the Guardians have a relationship with the Child that is consistent with a visitation relationship and not a joint custodian relationship.

8. At this time the Guardian shall have visitations schedule [sic] with Standard Indiana Parenting Time Guidelines with the exception that there shall be no extended visitation in the summer other than a one week visitation.

9. The Court makes no parenting time order for the Mother at this time as there is no formal motion before the Court on her behalf for parenting time; she has been limited in her contact with the Child and has exercised that parenting time at the home of the Guardians. The Court denies the Mother's alternative motion for custody of the Child as there is no evidence to support such a finding that placement of the Child in her custody would be in the best interests of the Child.

Id. at 70.

1.

The Guardians contend the trial court applied an incorrect standard when ruling upon Father's petition to modify custody, and that the court erred in granting the petition. According to the Guardians, the trial court erred in failing to require Father to show a substantial and continuing change of circumstances, which they claim is required for a modification. Further, they contend that the trial court erred in requiring the Appellees to show by clear and convincing evidence that Father was unfit, had long acquiesced in the current custody arrangement, or voluntarily relinquished I.E. in such a way that the affections of I.E. and the Guardians became interwoven so that severing them would seriously endanger I.E.'s future happiness.

We have set out the standard of review for custody modifications, as follows:

We review custody modifications for abuse of discretion with a “preference for granting latitude and deference to our trial judges in family law matters.” Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind.2002) (quoting In re Marriage of Richardson, 622 N.E.2d 178, 178 (Ind.1993)). Also, as with all cases tried by the court without a jury, the trial judge in this case entered special findings and conclusions thereon pursuant to Indiana Trial Rule 52(A). In reviewing findings made pursuant to Rule 52, we first determine whether the evidence supports the findings and then whether findings support the judgment. Stonger v. Sorrell, 776 N.E.2d 353, 358 (Ind.2002). On appeal we “shall not set aside the findings or judgment unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.” Ind. Trial Rule 52(A). A judgment is clearly erroneous when there is no evidence supporting the findings or the findings fail to support the judgment. Fraley v. Minger, 829 N.E.2d 476, 482 (Ind.2005). A judgment is also clearly erroneous when the trial court applies the wrong legal standard to properly found facts. Id.

K.I. ex rel. J.I v. J.H., 903 N.E.2d 453, 457 (Ind.2009).

We start by considering K.I., a case that is factually similar to the present case, and a case in which the court discussed the circumstances under which custody of a child may be awarded to a party other than a natural parent. As was the case here, the child in K.I. was born out-of-wedlock. The father was not aware that the mother had been impregnated as a result of the relationship until after the baby was born. Approximately six weeks after the baby's birth, the mother left the child in the custody of her mother (the grandmother). The grandmother and her husband filed a petition seeking guardianship of the child, and that petition was granted. During a chance encounter, the mother informed the father that a child had been born and showed him the child's picture. The grandmother filed a petition to establish paternity, seeking an order declaring the father as the child's biological father. She also sought an order awarding custody of the child to her (grandmother) and directing the father to pay child support. Subsequent genetic tests established a 99.89% probability that the father was the biological father of the child.

The parties thereafter entered an agreement providing that all of the parties, includingthe father, mother, and grandmother, would exercise visitation rights. The agreement also provided that grandmother would retain custody of the child. This arrangement was in place for approximately eighteen months, during which the father exercised regular visitation with the child. At that point, the father filed a petition for change of custody, seeking custody of the child. After a hearing, the trial court awarded custody of the child to her father and granted visitation rights to the grandmother. The grandmother appealed the change-of-custody award. In her appeal, the grandmother argued that the trial court applied the wrong legal standard for custody modification from a grandparent to a natural parent.

The Court began its analysis by disapproving language in a previous case from this court, i.e., “a burden shifting approach is the most appropriate way to protect parental rights and the best interests of the child.” Id. at 459 (quoting In re the Paternity of Z.T.H., 839 N.E.2d 246, 252 (Ind.Ct.App.2005)). The Court stated, “the distinctions between the statutory factors required to obtain initial custody and those required for a subsequent custody modification are not significant enough to justify substantially different approaches in resolving custody disputes,” because both require a determination of the child's best interest and both require consideration of certain relevant factors. Id. at 460. The Court also stated, “importantly, Indiana courts have long held that ‘[e]ven when a parent initiates an action to reobtain custody of a child that has been in the custody of another, the burden of proof does not shift to the parent[,] ... [r]ather, the burden of proof is always on the third party.’ ” Id. (quoting In re Guardianship of J.K., 862 N.E.2d 686, 692 (Ind.Ct.App.2007)). This is because a “burden shifting regime that places ‘the third party and the parent...