K.J.R. v. M.A.B. (In re M.L.B.)

• Court: Indiana Appellate Court
• Writing for the Court: KIRSCH
• Citation: K.J.R. v. M.A.B. (In re M.L.B.), 969 N.E.2d 140 (Ind. App. 2012)
• Decision Date: 14 June 2012
• Docket Number: No. 41A01–1107–MI–285.,41A01–1107–MI–285.
• Parties: In re The VISITATION OF M.L.B. K.J.R., Appellant–Respondent, v. M.A.B., Appellee–Petitioner.

969 N.E.2d 140

In re The VISITATION OF M.L.B.K.J.R., Appellant–Respondent,

v.M.A.B., Appellee–Petitioner.

No. 41A01–1107–MI–285.

Court of Appeals of Indiana.

June 14, 2012.

Appeal from the Johnson Superior Court; The Honorable Kevin M. Barton, Judge; Cause No. 41D01–1007–MI–31.

R. Lee Money, Greenwood, IN, Attorney for Appellant.

Russell T. Clarke, Jr., Emswiller Williams Noland & Clarke, PC, Indianapolis, IN, Attorney for Appellee.

MEMORANDUM DECISION—NOT FOR PUBLICATION

KIRSCH, Judge.

K.J.R. (“Mother”) appeals from the trial court's order granting M.A.B.'s (“Grandfather”) petition for grandparent visitation rights as to M.L.B. (“the Child”). Mother presents the following restated issues for our review:

I. Whether the trial court's order is clearly erroneous because the trial court failed to address the due process requirements of Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) and the factors set forth in McCune v. Frey, 783 N.E.2d 752 (Ind.Ct.App.2003) when entering the visitation order;

II. Whether the trial court's order exceeds the limitations of the Indiana Grandparent Visitation Act (“the Act”);

III. Whether the trial court abused its discretion by entering the order that is the subject of this appeal prior to the order pertaining to the adoption petition.

We affirm.

FACTS AND PROCEDURAL HISTORY

The Child was born out of wedlock on October 11, 2004 to Mother and M.D.B. (“Father”). Mother, Father, and the Child lived together in Father's home for the first three months after the Child's birth. When Mother and Father's relationship deteriorated, Mother and the Child moved out of Father's house and into the maternal grandfather's house. Mother began a relationship with P.R., and they married in 2006.

After moving out of Father's house, Mother allowed Father regular and frequent visits with the Child, either every other weekend, or a couple of evenings during the week. The relationship between Mother and Father further deteriorated to the point that Mother obtained a restraining order against Father, which expired sometime in 2006. Mother and Father verbally agreed at that time that Father could exercise parenting time visitation with the Child every other weekend.

Father exercised parenting time with the Child until a dispute arose on Mother's Day 2007, after which Mother requested that Father's visits be supervised by Grandfather. Father did not have a permanent place of residence and had made threats of harm against Mother, her unborn child, and himself. When Father refused to agree to supervised visitation, Mother suggested that Father petition the trial court for parenting time. In January 2008, Father petitioned the trial court to establish paternity. On April 28, 2008, the trial court entered a judgment of paternity and support, deferring a decision on the issue of visitation, but also providing that either party could petition the trial court for a decision on that issue. Although Father did not petition the trial court for an order of visitation, Mother allowed the Child to visit with Grandfather, as well as Father's extended family. The Child attended several of Father's family's functions in 2007, 2008, and 2009; however, after the Child's third birthday party in 2007, Father had virtually no interaction with the Child for the next three years.

On April 19, 2010, P.R. filed a petition for adoption of the Child. Father filed a motion to contest the adoption. Grandfather's subsequent motion to intervene in the adoption was granted by the trial court. Grandfather later filed a verified petition to establish grandparent visitation rights and then moved to consolidate the adoption and visitation actions. The trial court denied the motion to consolidate the actions, but heard evidence pertinent to both actions, at the same hearing. The trial court ultimately awarded Grandfather visitation rights as to the Child pursuant to Indiana Code section 31–17–5–1 prior to entering an order granting the adoption petition. Visitation rights under that chapter, if granted prior to a child's adoption, survive the adoption. SeeInd.Code § 31–17–5–9. The visitation order provided, in part, that Grandfather was entitled to up to ten hours with the Child in which to celebrate Easter, Thanksgiving, and Christmas with Grandfather's extended family and a summer vacation of up to ten days in duration. Mother now appeals. Additional facts will be supplied.

DISCUSSION AND DECISION

I. Clearly Erroneous Findings

The Act provides that under certain circumstances, a trial court may award visitation rights to a grandparent where doing so is in the best interest of the child. Ind.Code § 31–17–5–1, –2. In pertinent part under the Act, a grandparent may seek visitation rights if the child was born out of wedlock and paternity has been established. Ind.Code § 31–17–5–1(a)(3), (b). We will reverse a trial court's determination of the best interests of the child only upon a showing of an abuse of discretion. Swartz v. Swartz, 720 N.E.2d 1219, 1221 (Ind.Ct.App.1999).

In granting grandparent visitation rights to Grandfather, the trial court entered specific findings and conclusions as required by statute. SeeInd.Code § 31–17–5–6. When a trial court's judgment contains specific findings of fact and conclusions thereon, we apply a two-tiered standard of review. Bester v. Lake Cnty. Office of Family & Children, 839 N.E.2d 143, 147 (Ind.2005). First, we determine whether the evidence supports the findings, and second, we determine whether the findings support the judgment. Id . “Findings are clearly erroneous only when the record contains no facts to support them either directly or by inference.” Quillen v. Quillen, 671 N.E.2d 98, 102 (Ind.1996). If evidence and inferences support the trial court's decision, we must affirm. In re L.S., 717 N.E.2d 204, 208 (Ind.Ct.App.1999). We do not reweigh the evidence or determine the credibility of witnesses. Woodruff v. Klein, 762 N.E.2d 223, 227 (Ind.Ct.App.2002). We consider the evidence most favorable to the judgment, with all reasonable inferences drawn in favor of the judgment. Id. A judgment is clearly erroneous if it relies on an incorrect legal standard. Columbus Med. Servs. Org., LLC v. Liberty Healthcare Corp., 911 N.E.2d 85, 94 (Ind.Ct.App.2009). Mother appeals from an adverse judgment, as she did not bear the burden of proof at trial. See Romine v. Gagle, 782 N.E.2d 369, 376 (Ind.Ct.App.2003) (adverse judgment is one entered against party defending).

The Act acknowledges that “a child's best interest is often served by developing and maintaining contact with his or her grandparents.” Swartz, 720 N.E.2d at 1221. When the legislature drafted the Act, it had to balance “the rights of parents to raise their children as they see fit and the rights of grandparents to participate in the lives of their grandchildren.” Id. at 1221–22 (citing Lockhart v. Lockhart, 603 N.E.2d 864, 866 (Ind.Ct.App.1992)). “Grandparents ... do not have the legal rights or obligations of parents.” Id. Parents, on the other hand, “have a constitutionally recognized fundamental right to control the upbringing, education, and religious training of their children.” Id. at 1222. “Grandparents do not possess a constitutional liberty interest in visitation with their grandchildren.” Id.

Trial courts are to presume that a fit parent's decision regarding visitation is in the best interests of the child. Crafton v. Gibson, 752 N.E.2d 78, 96 (Ind.Ct.App.2001) (applying Troxel v. Granville, 530U.S. 57 (2000)). Atrial court must give special weight to a parent's decision to deny or limit visitation. Id. at 96–97. Further, a trial court should give some weight to the fact that a parent has agreed to some visitation. Id. at 97. Grandparents bear the burden of rebutting the presumption that a parent's decision to deny visitation was made in the child's best interests. Hicks v. Larson, 884 N.E.2d 869, 874–75 (Ind.Ct.App.2008).

In Troxel v. Granville, the United States Supreme Court considered the State of Washington's nonparent visitation statute. That statute provided that any person may petition the court for visitation rights at any time and the trial court could grant such rights whenever visitation served the best interest of the child. 530 U.S. at 67. In the plurality opinion, the Supreme Court reiterated the principle that the Due Process Clause of the Fourteenth Amendment to the United States Constitution protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children. Id. at 66. In finding the statute overbroad and an unconstitutional infringement of the right of parents to rear their children, the Supreme Court held that “so long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent's children.” Id. at 68–69.

We note at the outset that during the combined hearing Mother testified that she did not have any objection to Grandfather, his wife, and extended family continuing to see the Child, and did not object to them spending more time with the Child. When the issue was revisited during the hearing, Mother testified that she had not changed her position about the Child having contact with Grandfather and his family. Mother remained resolute, however, in her objection to Father having contact with the Child. Grandfather testified that he would abide by a court order that Father not be present during Grandfather's visitation with the Child if that was part of the order.

When the trial court enters a decree setting forth its findings and conclusions, the trial court should address: 1) the presumption that a fit parent acts in his or her child's best interests; 2) the special weight that must be given to a fit...