Manis v. McNabb

• Decision Date: 11 June 2018
• Docket Number: Court of Appeals Case No. 18A–GU–96
• Citation: 104 N.E.3d 611
• Parties: Erica MANIS, Appellant–Petitioner v. Trista MCNABB, Appellee–Respondent
• Court: Indiana Appellate Court

104 N.E.3d 611

Erica MANIS, Appellant–Petitioner

v.Trista MCNABB, Appellee–Respondent

Court of Appeals Case No. 18A–GU–96

Court of Appeals of Indiana.

Filed June 11, 2018

Attorney for Appellant: Dorothy Ferguson, Anderson, Indiana

Baker, Judge.

[1] Erica Manis (Mother) appeals the trial court's denial of her petition to terminate Trista McNabb's (Guardian) guardianship of her child, J.F. (Child), and its denial of her request for parenting time. She argues that the trial court erred by denying her petition to terminate the guardianship because the evidence showed that she was able to care for Child and that the trial court erred by concluding that it lacked authority to order parenting time for Mother. Finding that the trial court did not err by denying Mother's petition to terminate the guardianship, but that the trial court erred by refusing to consider Mother's request for parenting time, we affirm in part, reverse in part, and remand for further proceedings.

Facts

[2] Child was born in 2012. On December 14, 2015, Guardian filed a petition for appointment of a guardian for Child.¹ A hearing took place on January 5, 2016, and the following day, the trial court appointed Guardian as Child's temporary guardian. On February 3, 2016, Mother filed a motion to terminate the temporary guardianship and a motion requesting parenting time. On February 26, 2016, Guardian filed a motion to extend the temporary guardianship. On March 10, 2016, the trial court ordered the temporary guardianship extended.

[3] Hearings took place on June 7 and 24, 2016, and July 21, 2016. On July 25, 2016, Mother was charged with unlawful possession or use of a legend drug, possession of a controlled substance, and possession of paraphernalia. On August 17, 2016, the trial court appointed Guardian as Child's permanent guardian. The trial court did not order parenting time for Mother, instead "leaving that issue to the discretion of the Guardian to act in the best interests of the minor child in maintaining meaningful contact with all family." Appellant's App. Vol. II p. 110.

[4] On March 6, 2017, Mother pleaded guilty to unlawful possession or use of a legend drug, and the other charges were dismissed. Mother was placed on probation and ordered to participate in random drug screens and treatment at a substance abuse rehabilitation center. On May 3, 2017, Mother filed a petition to terminate the guardianship, arguing that her condition had improved such that she could care and provide for Child, or in the alternative, requesting parenting time with Child. On May 11, 2017, the trial court denied Mother's request for parenting time, stating that no statutory or other authority existed under which the trial court could order parenting time during the guardianship proceeding.

[5] On May 10 and July 26, 2017, Guardian filed motions to dismiss Mother's petition to terminate guardianship. The trial court denied both of Guardian's motions. On August 18, 2017, Guardian filed a motion to establish child support. A hearing on Mother's petition to terminate guardianship and Guardian's motion to establish child support took place on October 12, 2017. On December 20, 2017, the trial court denied Mother's petition and granted Guardian's, making the following findings of fact and conclusions of law:

6. That after this Court imposed its original guardianship order, the Mother went inpatient at several facilities .... During her stay at [one facility] mother was alleged to have made threats of harm about the guardian. As such, the guardian, Trista McNabb obtained a protected order against mother.

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8. Mother continues to reside with her grandparents who furnish her with everything she needs financially.

9. Mother testified that she hasn't worked in nearly two years but did recently try to work at Pizza King but quit that employment after only one-half day.

10. Mother has been in multiple car [collisions] in recent years, the most recent of which involved another car that was provided by her grandmother when she rear-ended another driver on August 31, 2017. In the two years prior, she had totaled two other cars through her own fault.

11. Mother currently is unemployed due to a broken leg which she received in a recent car accident, but has a pending application for Social Security benefits.

12. Jeannie Manis, grandmother of Mother, admitted that Mother had used her credit card without authorization. She admitted she had made Mother leave the house in fall of 2016 because she was being "disrespectful". When furnished with copies of electronic communications that Guardian argued was evidence of Mother was still engaging [sic] in drug seeking behavior, grandmother acknowledged that this was also another reason that Mother had been asked to leave.

13. Witness Lexi Manis recalled a similar incident where Mother had been asked to leave her grandmother's home again in summer of 2017, which lasted for only a short time.

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18. Mother continues to maintain that she does not have a drug problem and maintains that she has not abused drugs in over two years. She claimed she had not "actively used" since before [Child] was born.

19. Mother testified that she attends treatment [at the substance abuse rehabilitation center through] individual counseling and a psychiatrist. Mother testified that she also attends Narcotics Anonymous and a local church.

20. There was evidence presented that as a result of mother's treatment ... she has seen a psychiatrist that has adjusted her medication. Mother's medication was adjusted in the summer of 2017. Such an adjustment has had a positive impact on mother.

21. Mother provided mental health records showing five visits she had ... between August 4, 2016, and April 11, 2017. These records are inconclusive to show progress is being made, as they fail to show regular appointments. The records indicate that [Mother] was not compliant with recommendations that were made.

22. The evidence is clear that Mother now has a better support network in place, than at the time of the imposition of the guardianship.

23. Family and friends have seen a change in mother's behaviors and attitudes over the past six months. Mother regularly watches her friend's grandchildren for long periods of time without issue.

24. The mother sets and manages her own probation, mental health and medical appointments.

25. Family members assist Mother to travel to her various appointments.

26. Mother has not had any contact with her son since the summer of 2016. At the time that [she] initially consented to the guardianship,^[2] Mother believed that her contact with her child would continue once permanent guardianship was granted.

27. It is also clear that at the time of the imposition of the permanent guardianship, Mother opposed it vigorously; aware that visitation would not be an issue that the Court would enter in the event of the imposition of the guardianship.

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CONCLUSIONS OF LAW

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2. The Court has taken in the well-being and best interests of the child in making its decision. It is the Court's conclusion that it is in the best interests of the child that the guardianship continue and DENIES Mother's request to terminate it herein.

3. The Court concludes that the guardian is entitled to an order of child support in the sum of $51.00 per week....

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6. The limited mental records Mother submitted to the court were some months old, did not show that she was compliant with recommendations, and did not demonstrate or indicate her to be a fit parent to the extent that the Court was convinced that the need for the guardianship was no longer present; or that dismissing the guardianship would be in the best interests of the child.

7. Mother expressed belief that at the time of the imposition of the original guardianship, she did not have a mental health problem or substance abuse problem, instead believing [Child] was taken from her because she didn't have a job.

8. Mother's subsequent arrest, [and] lack of acceptance of her history of drug abuse have limited the progress which she has been able to make toward establishing independence despite the undoubted improvements that have been witnessed by family and friends.

9. The Court concludes that her claimed her [sic] "threat to harm the guardian" were not credible threats against the guardian when viewed in context of the evidence presented. When taken in context, they were generalized statements that do not and should not prevent her from having contact with the minor child herein.

10. The Court concludes that Guardian shall take all steps necessary to remove the child from being a protected party so as to permit contact or visitation. While the Court has no discretion in this cause to [ ] direct that Guardian seek to dismiss or the current protective order as it appl[ies] to herself; the Court would consider that factor in the future as to whether the current guardian is the best person suited to be guardian in the future.

11. As to parenting time/visitation with the child, the Court has long expressed its belief that it lacks authority in a Guardianship to order a parenting time/visitation schedule; the continued lack of contact with mother is a factor that the Court will consider the allowance or denial of that contact in the future in reviewing the continuing appropriateness of Guardian to serve in that capacity.

Appealed Order p. 3–7. Mother now appeals.³

Discussion and Decision

[6] Mother raises three issues on appeal, which we consolidate and restate as: 1) whether the trial court erred by denying her petition to terminate guardianship, and 2) whether the trial court erred by concluding that it lacked authority to consider and determine parenting time for Mother.

I. Petition to Terminate Guardianship

[7] Mother argues that the trial court erred by denying her petition to terminate guardianship. Specifically, Mother argues that the evidence showed that she was able to care for Child and that Guardian failed to present any evidence to the contrary. Mo...