Stewart v. Stewart

• Decision Date: 20 April 1988
• Docket Number: No. 49A04-8702-CV-42,49A04-8702-CV-42
• Citation: 521 N.E.2d 956
• Parties: , 56 USLW 2646 Thomas R. STEWART, Appellant (Petitioner below), v. Debra R. STEWART, Appellee (Respondent below).
• Court: Indiana Appellate Court

Page 956

521 N.E.2d 956

86 A.L.R.4th 191, 56 USLW 2646

Thomas R. STEWART, Appellant (Petitioner below), v. Debra R. STEWART, Appellee (Respondent below).

No. 49A04-8702-CV-42.

Court of Appeals of Indiana Fourth District.

April 20, 1988.

Rehearing Denied May 18, 1988.

Timothy A. Rowe, David W. Hamilton, Austin, Rowe & Hamilton, Indianapolis, for appellant.

David F. Hamilton, Jean M. Terpstra, Barnes & Thornburg, Richard A. Waples, Indiana Civ. Liberties Union, Indianapolis, for Indiana Civ. Liberties Union and Amicus.

Leslie P. Simpson, Mary T. Wolf, Legal Services Organization of Indiana, Inc., Indianapolis, for appellee.

MILLER, Presiding Judge.

Thomas R. Stewart, who has tested positive for the AIDS virus, appeals the termination of his parental visitation rights with his two year old daughter, Kara Stewart. The issues raised on appeal include:

1. Whether the trial court abused its discretion in terminating Thomas' parental visitation rights on the basis that he presented a physical danger to Kara;

2. Whether the trial court abused its discretion in denying Thomas' due process rights by refusing to permit Thomas to present certain witnesses on his behalf; and

3. Whether Thomas was denied the opportunity to present his case in a fair and impartial forum.

Based on a thorough review of the record and pertinent case law, we conclude: (1) that the trial court's decision to deny Thomas' emergency petition for change of custody should be affirmed, and (2) that Thomas' visitation rights were improperly terminated.

On September 6, 1985, Thomas petitioned for the dissolution of his marriage to Debra Stewart. On December 6, 1985, a "Decree for Dissolution of Marriage" was entered. Debra was awarded custody of Kara, who had been born on October 31, 1984. At the time of the dissolution, Debra resided in California and Thomas in Indiana. As a result, the dissolution decree provided that Thomas was to have reasonable visitation with Kara which was defined as being not less than two months of visitation during the summer while Debra lived outside the State of Indiana. If Debra moved back to Indiana, visitation was to be on alternate weekends and alternate holidays.

On October 9, 1986, while Debra was in Indiana, Thomas filed a "Verified Petition for Emergency Temporary Custody and Contempt," alleging that Debra had refused to let Thomas exercise his visitation rights. It also asserted that Kara was not receiving adequate nourishment and was being given alcohol and narcotics, and an extreme emergency existed with regard to Kara's physical, mental and emotional condition. As a result of the petition, the trial court issued an order forbidding Debra to leave the jurisdiction. Debra denied all the allegations and filed a "Verified Petition for Modification of Custody and Contempt," alleging that Thomas had failed to make timely child support payments. She further claimed that Thomas led a homosexual lifestyle, was infected with the AIDS virus, lived in substandard housing with ten other occupants and lived in a household in which there was violence. Debra also asserted that the two month summer visitation out of her presence would upset two year old Kara, who had never been out of her mother's care.

On October 24, 1986, a hearing was held to consider the pending petitions. The parties agreed that, although Thomas would proceed first, the testimony of the witnesses could be considered in determining both petitions. Thomas' witnesses were himself, two doctors (whose testimony will be discussed later), his former wife Debra and his niece, Sandra Cole (also Debra's cousin). Thomas testified that he had a good home environment. He lived with his parents and sister and her three children in a 1,250 square foot, three bedroom, two-story home in a residential area. The home had all modern appliances. Thomas was self-employed in the excavating business. Since the divorce--granted less than a year before the hearing--Thomas fell behind 36 weeks in his support payments. He made a lump sum payment and was current at the time of the hearing. He based his contention that emergency custody was necessary solely on telephone conversations with Debra. He claimed that in the conversations Debra admitted that she was using drugs and alcohol and stated that she gave Kara beer, which she didn't consider harmful, and that on one occasion the child accidentally ate half a marijuana cigarette. Debra, on the other hand, denied making these statements to Thomas. She stated that, although she had suffered drug and alcohol problems in the past, she was not a current user. Thomas' niece, Sandra Cole, testified that she visited Debra in California for one day and in the evening, at a dinner party with six guests present, she observed the consumption of alcoholic beverages. She stated that she thought there was an unspecified drug present. She did not testify that Debra mistreated the child in her presence. At this point, Thomas represented to the court that his next witness, his father Fred Stewart, would corroborate the telephone conversation in which Debra allegedly stated that: (1) she gave Kara beer, and (2) Kara had accidentally eaten half a marijuana cigarette. However, the court did not permit Fred Stewart to testify, stating that, even assuming he would corroborate Thomas' testimony, the evidence was clearly insufficient to support the granting of an emergency petition for change of custody. The court then proceeded, apparently based upon the testimony of Thomas' witnesses, to find in favor of Debra's motion for modification, although Debra did not request total termination of Thomas' visitation. The court commented that Thomas had proven that he had AIDS and, under those circumstances, "even if there was a one percent chance that this child is going to contract it from him, I'm not going to expose her to it," and proceeded to terminate his visitation rights because of physical danger to the child. ¹ He further authorized the mother to return with the child to California. This appeal followed.

Thomas first argues that the trial court erred in not permitting his father to testify and corroborate his testimony. We agree. Of course, the parties should be permitted to present their witnesses in order to establish their case. This right can be abused, for instance, by presenting a number of witnesses with cumulative evidence. This was not the case here. But, while on the one hand we agree with Thomas' assertion of error, on the other hand we believe the error here to be harmless for several reasons. First, the evidence of emergency based on Debra's inadequacy as a parent was skimpy and supported for the most part by self-serving testimony by Thomas. There was no substantial testimony by anyone that they had direct contact with Debra in California and were familiar with her life style and the manner in which Kara was being raised. Further, the court was aware of Fred Stewart's potential testimony and indicated that Stewart's testimony would not affect the court's decision. Therefore, we conclude that the error committed by the trial court was harmless and, since the evidence was conflicting, we must affirm the trial court's decision to deny Thomas' emergency petition for custody.

The key issue in this case is whether the trial court abused its discretion in terminating Thomas' visitation rights with Kara. ² Visitation by non-custodial parents is provided for by IND.CODE 31-1-11.5-24 (Supp.1987), which states in part:

(a) A parent not granted custody of the child is entitled to reasonable visitation rights unless the court finds, after a hearing, that visitation by the parent might endanger the child's physical health or significantly impair his emotional development.

(b) The court may modify an order granting or denying visitation rights whenever modification would serve the best interests of the child, but the court shall not restrict a parent's visitation rights unless it finds that the visitation might endanger the child's physical health or significantly impair his emotional development. ³

Indiana has long recognized that the right of parents to visit their children is "a sacred and precious privilege" which should be enjoyed by non-custodial parents. Partridge v. Partridge, (1971) 257 Ind. 81, 272 N.E.2d 448, 450. However, the right of visitation is subordinated to the best interests of the child. Thus, under IND.CODE 31-1-11.5-24(a) and (b), visitation may be denied or restricted only if the trial court finds that visitation might endanger the child's physical health or significantly impair his emotional development.

The degree of proof required in actions involving the termination of a parental right was discussed in Santosky v. Kramer (1982), 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599. In Santosky, the natural parent's rights to visit, communicate with, or regain custody of the child were being permanently terminated pursuant to New York's permanent neglect statute. The state court determined that these parental rights could be permanently terminated if the state proved its allegations of neglect by a "fair preponderance of the evidence." The Supreme Court held that the state could not completely and irrevocably terminate the rights of parents unless the state supported its allegations with evidence that was at least clear and convincing. ⁴ In reaching this conclusion, the court examined and balanced three factors--the private interests affected by the proceeding; the risk of error created by the State's chosen procedure; and the countervailing governmental procedure--and stated, "Whether the loss threatened by a particular type of proceeding is sufficiently grave to warrant more than average certainty on the part of the factfinder turns on both the nature of the private interest threatened and the permanency of the threatened loss." Santosky, supra, 455 U.S. at 754, 102 S.Ct. at 1395-97. An examination of these factors...