M.S. v. M.S. (In re A.S.)

• Decision Date: 31 January 2013
• Docket Number: No. 64A03–1204–JP–171.,64A03–1204–JP–171.
• Citation: 984 N.E.2d 646
• Parties: In re the PATERNITY OF A.S. M.S., Appellant, v. M.S., and B.H., Appellees.
• Court: Indiana Appellate Court

984 N.E.2d 646

In re the PATERNITY OF A.S.

M.S., Appellant,

v.M.S.,andB.H., Appellees.

No. 64A03–1204–JP–171.

Court of Appeals of Indiana.

Jan. 31, 2013.

Jeffrey A. Golding, Valparaiso, IN, Attorney for Appellant.

Steven M. Bush, Valparaiso, IN, Attorney for Appellees.

OPINION

PYLE, Judge.

STATEMENT OF THE CASE

M.S. (“Mother”) appeals the trial court's order awarding custody of her daughter, A.S., to the maternal grandmother, M.D. (“Grandmother”).

We reverse.

ISSUE

Whether Grandmother rebutted the presumption that A.S.'s interests are best served by placement with Mother.

FACTS AND PROCEDURAL HISTORY

On February 19, 2002, Mother gave birth to A.S. After their release from the hospital, both Mother and A.S. moved into Grandmother's Crown Point, Indiana home. For an unspecified period, Grandmother provided primary care to both Mother, who was suffering from postpartum depression, and A.S. According to Grandmother, once Mother felt better, “we [Mother and Grandmother] jointly cared and raised [A.S.]” (Tr. 78). Grandmother provided the majority of A.S.'s financial support. Mother sporadically worked outside the home, and Grandmother worked full time as a nurse at a local hospital.

Mother and A.S. continued to live with Grandmother until April of 2007, when Mother moved out of the house to live with her current husband and A.S.'s step-father, Mi.S. (“Stepfather”). In approximately May of 2007, Mother and Stepfather began living in an apartment in Lowell, Indiana. In August of 2007, Mother was convicted of operating a vehicle while intoxicated, and her driver's license was suspended. At that time, Mother had already registered A.S. for pre-school in the Crown Point District, and Mother, Stepfather, and Grandmother agreed that A.S. would continue to live with Grandmother during the school week and live with Mother and Stepfather on weekends. This arrangement continued until May, 2008, the end of the 2007/2008 school year.

After May of 2008, A.S. lived with Mother and Stepfather in their Valparaiso apartment and was living with them at the time of the custody hearing. From May of 2008 until December of 2009, A.S. visited Grandmother on the weekends. On April 22, 2009, Mother gave birth to Mother and Stepfather's first child, Av.S. In July of 2009, Mother again became pregnant, and in December of 2009, Mother experienced life-threatening complications that required her to be hospitalized on December 26, 2009, in an Illinois hospital.

On that date, A.S. was already visiting Grandmother. At Stepfather's request, Grandmother agreed to babysit Av.S. while he visited Mother in the hospital. On December 28, 2009, Grandmother called Stepfather and told him to pick up Av.S., who was crying uncontrollably. Stepfather arrived at Grandmother's house on December 29, 2009, with the intention of picking up both A.S. and Av.S. Stepfather and Grandmother disagreed about whether Mother had authorized him to pick up A.S., and he left Grandmother's house without A.S. Subsequently, Stepfather pushed Grandmother during a confrontation at the hospital.

On January 1, 2010, Mother picked up A.S. from Grandmother's house, and A.S. resumed living with Mother and Stepfather, as she had prior to Mother's hospitalization. Because of the tension between the families, Mother refused contact with Grandmother, and Grandmother did not see A.S. again until January of 2011.

On January 5, 2010, Stepfather filed a petition to adopt A.S. On the same date, Stepfather filed a petition for temporary custody alleging that Mother was being treated for an unspecified medical condition and could not care for A.S. on a full-time basis. The trial court granted the petition for temporary custody on the basis that “placing the child with the petitioner for adoption pending the hearing on the petition for adoption is in the best interests of the child.” (Ex. Book 139).

Sometime thereafter, Mother's sister contacted A.S.'s biological father, B.H. (“Father”), on Facebook and informed him that he had a nine-year-old daughter who was about to be adopted by her stepfather. Father is an Illinois resident who knew that he had impregnated Mother but assumed she had lost the child due to complications during the pregnancy. During the years following A.S.'s birth, Father made only one attempt to ascertain whether Mother had given birth, and Mother and Grandmother made no attempt to inform him of the birth. On February 11, 2010, Father filed his “Objection to Petition for Adoption of Minor Child” and a petition to establish paternity.

Meanwhile, on February 5, 2010, Grandmother filed a petition for grandparent's visitation rights. On April 6, 2010, Grandmother followed the filing of the petition for visitation with a petition for custody based on her status as a de facto custodian.

The trial court joined the causes and ordered mediation, and the parties entered into a facilitation agreement on November 18, 2010. The trial court issued a December 6, 2010 order incorporating the facilitation agreement, finding in pertinent part that (1) Father was A.S.'s biological father; (2) Stepfather had withdrawn his request for adoption and custody; (3) Mother was the custodial parent; and (4) Father was to begin supervised visitation with A.S. In the order, the trial court reserved other matters for future adjudication.

In a separate order, however, the trial court stated that Grandmother could exercise visitation under the supervision of Family House. This supervised visitation began on January 2, 2011 and lasted for four sessions. Grandmother then began exercising unsupervised visitation with A.S. every other Saturday from 8 a.m. until 8 p.m., an arrangement that was in effect at the time of the custody hearing.

The trial court appointed Mark Roscoe to serve as guardian ad litem for A.S. The guardian ad litem reviewed A.S.'s school progress reports and Mother's medical records, met with Mother, Stepfather, A.S., Grandmother, and Father, and then submitted a report in which he stated:

[Grandmother] disapproves of the way her daughter has chosen to live her life and contends that she is incapable of caring for [A.S.] in the same manner that [Grandmother] has provided for said child in the past. Although [A.S.'s stepsisters, Av.S. and Al.S.] are also the biological grandchildren of [Grandmother], she has not expressed the same concerns regarding the care of said children. It is evident to this writer that [Grandmother] has developed a maternal bond with her granddaughter, [A.S.], and views her as her own child. As the perceived primary care giver of said child from [A.S.'s] date of birth through 2007, it is not unusual for a grandparent to develop such a bond. However, what concerns this writer is the extent to which [Grandmother] has gone to discredit her daughter and prove that she is incompetent to care for [A.S.], even to the extent of further damaging [Mother's] mental health. This process may impede the reconciliation efforts of all parties involved.

* * * * * *

My client, [A.S.], is nine (9) years of age and currently resides with her Mother, Stepfather and two (2) siblings. [A.S.] is a third grade student ... [and] her favorite subject is Art. She is an above average student and typically earns A's and B's on her report cards. [A.S.] enjoys painting, baking, swimming, playing with her two (2) cats, Penelope and Henry, and playing outside with her friends. She also enjoys spending time with her Mother, Stepfather, and sisters. Although she was sad when she was physically separated from her Grandmother, she reports she has made the adjustment but still misses her. [A.S.] is articulate, direct and a respectful young girl.

* * * * * *

[T]here is no doubt in my mind that [Grandmother] has played a major role in providing care and support for [A.S.] throughout the majority of her life, but [Mother] and [Father] are the biological parents of [A.S.] and should be charged with the responsibility of providing care and support for said child. Although [Mother's] progress has been slow with respect to the treatment of her Schizoaffective Disorder, she is maintaining said condition through her medications and has the current ability to recognize when her medications require adjustments. It is unclear to me why [Grandmother] believes that [Mother] is incapable of raising [A.S.] but yet capable of raising [Grandmother's] two other grandchildren, Av.S. and Al.S. I suspect that [Grandmother] is of the belief that [Stepfather], as the biological father of Av.S. and Al.S., is capable of providing care for said children if [Mother] falls short of her responsibility. However, as the Court is aware, this action began with an adoption petition filed by [Stepfather] wherein he was seeking to adopt [A.S.].

(Mother's App. 71; 74).

The guardian ad litem, recommended that (1) Mother retain custody of A.S.; (2) Grandmother be granted visitation; and (3) Father initially be granted supervised visitation with the goal that he eventually be afforded visitation under the Indiana Parenting Time Guidelines. (Mother's App. 75–76).

On October 11, 2011, the trial court held a custody hearing to determine whether Mother, Father, or Grandmother should exercise physical custody of A.S. At the hearing, Grandmother and Father were represented by counsel who presented evidence of Mother's battle with a schizoaffective disorder, former alcoholism, and an early post-adolescent involvement with gangs. Mother appeared pro se, and although she asked no questions of opposing witnesses, she gave a statement to counteract some of the claims made by other witnesses. The guardian ad litem's report was placed into evidence, and the guardian ad litem testified that physical custody should remain with Mother. Grandmother requested that the trial court issue findings pursuant to Indiana Trial Rule 52, and Grandmother and Father filed joint proposed findings on November 10, 2011.

On November 15, 2011, the trial court issued...