Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
FILED
Jul 07 2009, 9:06 am
of the supreme court, court of appeals and tax court
ATTORNEY FOR APPELLANT: KEVIN G. HARVEY Allen Wellman McNew, LLP Greenfield, Indiana
CLERK
IN THE COURT OF APPEALS OF INDIANA
K.L.M., Appellant-Petitioner, vs. D.M.M. and J.R.M. Appellees-Respondents. ) ) ) ) ) ) ) ) )
No. 18A02-0903-CV-214
APPEAL FROM THE DELAWARE CIRCUIT COURT The Honorable John Feick, Judge Cause No. 18C04-0810-MI-64
July 7, 2009
MEMORANDUM DECISION - NOT FOR PUBLICATION
FRIEDLANDER, Judge
K.L.M. (Mother) appeals the trial court’s grant of D.M.M. and J.R.M.’s (Grandmother and Grandfather, respectively; collectively referred to as Grandparents) Petition to Set Grandparent Visitation. Mother presents the following consolidated and restated issue for review: Is the trial court’s grandparent visitation order clearly erroneous? We reverse. Grandparents are the paternal grandparents of G.M, born March 1, 2005, and B.M., born January 18, 2008, and the parents of the children’s deceased father (Father). Father and Mother were married for about five years leading up to his death on January 9, 2008. Father died after an unsuccessful ten-month battle with cancer. Prior to Father’s diagnosis, Father, Mother, and G.M. spent time with Grandparents on a regular basis, and the family was very close. Although Grandparents saw G.M. almost daily, G.M. spent the night with them only once during her first two years of life. Father’s cancer diagnosis in March 2007 brought the family even closer together, and Grandparents spent significant additional time caring for G.M. In the fall of 2007, it became apparent that Father’s treatment was not working. Father, Mother (about six-months pregnant with B.M.), and G.M. moved into Grandparents’ home for about six weeks. After they returned to their own home, Grandparents continued to provide significant support to Father, Mother, and G.M., with Grandmother spending many nights at their home. Suffice it to say, Mother and Grandparents shared a close relationship leading up to Father’s death. B.M. was born nine days after Father’s death, and Grandparents continued to offer strong support and care for Mother and the children during this difficult time. The relationship between Mother and Grandparents remained close until about mid-April, when
Mother began to date S.W. (Mother’s current husband and Grandmother’s cousin). Grandparents, particularly Grandmother, reacted strongly and with disfavor toward Mother regarding her relationship with S.W., a relationship that eventually led to cohabitation and then marriage. During the first week or two of her new relationship with S.W., Mother did not call or visit Grandparents. Grandmother became extremely emotional about the situation. Things escalated on Mother’s Day, May 11, 2008, with a heated exchange between Grandparents and Mother at Grandparents’ house. Mother told them about her relationship with S.W. and also explained that she did not like coming to their house because they “were sad” and needed to “move on” because Father was dead. Transcript at 15. Eventually, there were raised voices, and Mother left when Grandfather called her a slut. Grandfather, however, apologized to Mother the next day for making this comment.1 Though her relationship with Grandparents was clearly strained, Mother continued taking the children to their home on a regular basis following the confrontation. Soon thereafter, however, Mother was informed through an intermediary that Grandparents no longer wanted her to stay during visits with the children. Mother testified that this constraint necessarily changed the amount of time the children were going to be at Grandparents’ home because, as a full-time working mother, she was “going to jealously guard [her] parenting time with [her] kids.” Id. at 65. The parties subsequently experienced difficulty agreeing on
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Although it is not clear when the comment was made, Grandmother admitted telling Mother on one occasion before the instant petition was filed that she was going to knock out her front teeth.
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visitation, even with the help of an intermediary,2 and Mother refused a few requests for overnight visits. Despite their disagreements, however, Mother did drop the children off at Grandparents’ home once or twice a week during the summer for a couple hours at a time, often while she ran errands. G.M. spent the night at least once before the school year started, and both children stayed with Grandparents for one full day. After the school year began in mid-August, the children went to Grandparents’ home every Monday and Friday afternoon while Mother, a school teacher, worked. Further, over Labor Day weekend, Grandparents enjoyed visitation with the children all day on Saturday (August 30) and kept G.M. overnight. Grandparents were not satisfied with the terms of the visitation being offered by Mother, so they filed a petition for grandparent visitation on September 8, 2008. They sought court-ordered visitation of two weekends per month and one week in the summer. Within a week of the petition being filed, Mother, through her attorney, proposed a temporary visitation schedule while the matter was pending. Although the parties failed to agree on a precise schedule, Grandparents did continue to enjoy visitation with the children from October through December 2008, including an overnight visit with G.M., several day visits with both children, and holiday visits.3 The evidentiary hearing regarding Grandparents’ petition took place on January 13, 2009. At the hearing, Grandparents acknowledged that Mother had never cut off their access
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By sometime in July, Mother and Grandmother stopped all direct communication. Mother’s brother acted as an intermediary in an attempt to negotiate visits.
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There was a relatively short period of time following the filing of the petition in which Grandparents did not have visitation at their house and saw the children only twice a week at G.M.’s soccer games. Grandmother
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to visitation with the children. Rather, they claimed to have been put into more of “just a babysitting role”, and they wanted the children to know them as grandparents. Id. at 17. Mother recognized that they were good grandparents and it was in her children’s best interests to have a relationship with them. Further, Mother testified that Grandparents had regularly visited with the children and that she had never even threatened to deny them visitation. She claimed that communication had broken down because of Grandmother’s verbal attacks but indicated that she believed she could effectively communicate with Grandparents regarding visitation as long as Grandparents were reasonable. Thereafter, on February 17, 2009, the trial court issued its order, along with findings of fact and conclusions of law, awarding visitation to Grandparents for one weekend per month and one week each summer. The order provides in part: Findings of Fact: 9. *** Said dating/cohabitation arrangement caused significant discord between the parties, eventually resulting in a total breakdown in communication. *** [G.M.] spent time with her grandparents almost daily prior to [Father’s] death and that time included weekends, holidays and evenings. During this same time, [Grandparents] had extensive experience in caring for [G.M.] The amount of time [G.M.] spent with her grandparents was then reduced to very little to no time by summer 2008. [Grandparents] testified that, by summer 2008, they were relegated to “babysitters for one to two hours per week, mostly at times that they were not together with the children.” [Grandfather] works afternoons and [Grandmother] works mornings. Between summer and fall 2008, [Mother] would only allow
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approached Mother during the first two soccer games (that is, the week the petition was filed) and was subsequently asked by Mother’s counsel not to approach Mother in public again.
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[Grandparents] to spend 1-2 hours per week with [the children], and some weeks even less than that. Many times [Mother] would not allow [Grandparents] direct contact with the children, but would only allow them to attend [G.M.’s] soccer games. There was also a two week period of time where [Grandparents] were allowed no contact. *** 19. [Mother] has allowed [Grandparents] some overnight visitation with [G.M.] as part of the temporary arrangements worked out through counsel. *** 21. [Mother] also testified that she did not want to be around [Grandparents] because they were “sad” and life needed to go on. 22. That [Mother] also testified that she went with the children to [Grandparents’] but when she was asked to not come over with them, she further reduced the time the children were allowed to spend with [Grandparents]. 23. All of the parties testified that [Grandparents] enjoy a close relationship with the children, especially [G.M.]… 24. [Mother] admitted during her testimony that [Grandparents] have only about one half hour at home together during the weekdays, which is typically when she has allowed [Grandparents] to see the children. Conclusions of Law: *** 4. Although [Mother] is a fit parent, and although she opposed the … visitation petition, she was unable to articulate any credible reason to restrict such visitation, particularly in light of the evidence, discussed below, that the grandparents and children have a good relationship and that visitation between them is in the children’s best interest. 5. The Court, upon weighing all of the evidence, concludes that [Mother’s] judgment on the issue of grandparent visitation for the children has been clouded by the understandable lingering emotional issues concerning the untimely death of [Father], the subsequent related breakdown in communication between her and [Grandparents], and her personal emotional distress that arises from communicating with the parents of her deceased husband. The substantial evidence supporting this conclusion was more than sufficient to overcome the presumption and special weight factors described above. a. [Mother’s] assertion that she has not denied [Grandparents] visitation with their grandchildren is not well taken. She has constructively denied meaningful contact with the children by limiting their contact to times when she goes shopping, and to times when they may not spend time with their
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grandchildren together due to their work schedules. b. While this Court notes that [Mother’s] decision to limit contact with [Grandparents] must be given special weight, this Court finds that her decision to limit is very much not in the children’s best interest. The Court hereby finds that there was overwhelming positive evidence about the time [Grandparents] and their grandchildren have spent together and of the warmth and quality of [Grandparents’] relationship with their grandchildren such that the Court is obliged to conclude that visitation with [Grandparents] is very clearly in the best interest of [the children]. a. Within an approximate four month period, [G.M.] not only lost her father, she also constructively lost meaningful contact with her grandparents – grandparents with whom she had established a special and material bond with over her entire life. [Grandparents’] testimony established that [G.M.] had clearly been affected by the loss of this bond. b. It was very much in [G.M.’s] best interest that this relationship not have been damaged as it was and it is very much not in her interest to have that relationship threatened or reduced presently. c. [Mother’s] refusal to provide consistent grandparent visitation and denial that she has done so in the light of credible evidence to the contrary, suggest that the children’s best interests require the permanency and consistency that can only be assured by a grandparent visitation order. The Court has considered that [Mother] has at times restricted [Grandparents’] visitation with [the children] and has, for some period of time, completely prevented visitation. Separately and combined, this history makes it unlikely that [Grandparents] will receive the consistent and predictable time with their grandchildren that would be in the children’s best interest.
Order The Court has reviewed all of the evidence and the applicable law and finds as follows: 1. The Court finds that in order for [Grandparents] to continue a bond with [G.M.] and establish a bond with [B.M.], a grandparent visitation order must be entered. 2. The Court finds that if a visitation order is not entered, [Mother] will continue to limit the children’s contact with [Grandparents] to
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the extent that there will be no meaningful contact and that this would not be in the children’s best interest. 3. While the Court recognizes that a temporary schedule was worked out between counsel after [Grandparents] filed their petition, the Court finds this would not likely continue without constant intervention of counsel due to the testimony of all parties that communication between the parties had broken down completely, and that even the assistance of a mediator did not resolve the issue. In addition, even if the schedule were continued, it is inadequate to meet the best interests of the children. 4. The Court was troubled by [Mother’s] comment that “she did not want to be around [Grandparents] because they were sad and life must go on,” and finds that this attitude has played a significant role in her limiting contact between the children and [Grandparents]. [Grandparents] are entitled to their grieving period without [Mother’s] interference with their time with the grandchildren and the best interest of the children trump [Mother’s] personal preference to avoid [Grandparents]. *** Appendix at 6-9. Mother appeals from this order, claiming that the trial court
unconstitutionally infringed upon her right to raise her children free of state intervention, improperly concluded Grandparents were entitled to consistent and predictable visitation, and abused its discretion when it concluded that Mother had constructively denied meaningful contact between Grandparents and the children. Our standard of review is well settled. When a trial court enters findings of fact and conclusions of law pursuant to Indiana Trial Rule 52, we will not set aside the findings or judgment unless clearly erroneous. “Thus, we must determine whether the evidence supports the findings and whether the findings support the judgment.” Schaffer v. Schaffer, 884 N.E.2d 423, 425 (Ind. Ct. App. 2008). “In deference to the trial court’s proximity to the issues, we disturb the judgment only where there is no evidence supporting the findings or
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the findings fail to support the judgment.” Woodruff v. Klein, 762 N.E.2d 223, 226 (Ind. Ct. App. 2002) (citations and internal quotations omitted), trans. denied. We, therefore, do not reweigh the evidence or determine the credibility of witnesses. Woodruff v. Klein, 762 N.E.2d 223. Rather, we consider the evidence most favorable to the judgment and draw all reasonable inferences in favor of the judgment. Id. Finally, we note that a judgment is clearly erroneous when the trial court applies the wrong legal standard to properly found facts. Schaffer v. Schaffer, 884 N.E.2d 423. Before reaching the merits of this case, we initially observe that Grandparents have not filed an appellate brief in this case. “Accordingly, we do not undertake the burden of developing arguments for the appellee because that is appellee’s duty.” Maser v. Hicks, 809 N.E.2d 429, 432 (Ind. Ct. App. 2004). When an appellee does not file a brief, we generally apply a less stringent standard of review and may reverse the trial court’s decision if the appellant makes a prima facie showing of reversible error. Maser v. Hicks, 809 N.E.2d 429. “Prima facie” is defined as “at first sight, on first appearance, or on the face of it.” Id. at 432 (quoting Parkhurst v. Van Winkle, 786 N.E.2d 1159, 1160 (Ind. Ct. App. 2003)). Further, under these circumstances, we deem the statement of facts in the appellant’s brief to be accurate and sufficient for a full disposition of the appeal. In re C.L.H., No. 32A01-0812CV-597, __ N.E.2d __ (June 23, 2009). Under Indiana’s Grandparent Visitation Act (the Act), a grandparent may seek visitation rights if, inter alia, the child’s parent is deceased. Ind. Code Ann. § 31-17-5-1(a) (West, PREMISE through 2008 2nd Regular Sess.). A trial court may grant said rights if the
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court determines that visitation rights are in the best interests of the child. I.C. § 31-17-52(a) (West, PREMISE through 2008 2nd Regular Sess.). In making this determination, the court “may consider whether a grandparent has had or has attempted to have meaningful contact with the child.” I.C. § 31-17-5-2(b). But see Woodruff v. Klein, 762 N.E.2d at 228 (while the court may consider past meaningful contact, “this consideration is not the touchstone for determining the child’s best interests”). The issue of court-ordered grandparent visitation under the Act raises constitutional concerns. See e.g., Troxel v. Granville, 530 U.S. 57, 66 (2000) (“it cannot be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children”); Swartz v. Swartz, 720 N.E.2d 1219 (Ind. Ct. App. 1999) (recognizing a parent’s fundamental right to control the upbringing of their children and noting, by contrast, that grandparents do not possess a constitutional liberty interest in visitation with their grandchildren). Although not unconstitutional on its face, there are a number of factors a court must consider when determining a child’s best interests to avoid an unconstitutional application of the Act. Crafton v. Gibson, 752 N.E.2d 78 (Ind. Ct. App. 2001) (applying Troxel v. Granville, 530 U.S. 57). See also In re C.L.H., __ N.E.2d __; Woodruff v. Klein, 762 N.E.2d 223. First, courts must “presume that a fit parent’s decision is in the best interest of the child.” [Crafton v. Gibson, 752 N.E.2d] at 96. Acting under this presumption, courts must accord special weight to a parent’s decision to deny or limit visitation. Finally, a court should give some weight to the fact that a parent has previously agreed to some visitation.
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Schaffer v. Schaffer, 884 N.E.2d at 426-27 (some citations omitted).4 The burden, therefore, is on the grandparent to rebut the presumption that a fit parent acts in his or her children’s best interest and demonstrate that court-ordered visitation is in the children’s best interest. Crafton v. Gibson, 752 N.E.2d 78. In the instant case, it is undisputed that Mother is a fit parent, who has consistently allowed visitation between Grandparents and her children even in the face of hostile treatment. In fact, Mother concedes that grandparent visitation is in the best interests of her children. The issue, therefore, is how much visitation. Under the circumstances presented here, we believe Mother is best suited to make this decision for her children. We have previously observed that “once a parent agrees to some visitation, the dispute is no longer over whether the grandparent will have any access to the child, but instead over how often and how much visitation will occur.” Id. at 97. [T]here are different interests at stake in cases where the parties cannot agree to the terms of visitation as opposed to cases w[h]ere no access has been allowed. In the later case, a grandparent would be pursuing the right to have a relationship with the child, while the former case boils down to a mere disagreement between parent and grandparent over how much access is appropriate. Id. (citations omitted).
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Accordingly, in grandparent visitation cases, we have held that a trial court is required to set forth findings and conclusions addressing: 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 parent’s decision to deny or limit visitation; 3) whether the grandparent has established that visitation is in the child’s best interests; and 4) whether the parent has denied visitation or has simply limited visitation. McCune v. Frey, 783 N.E.2d 752, 757 (Ind. Ct. App. 2003). In the instant case, the trial court addressed each of these factors in its findings and conclusions.
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As found by the trial court, Grandparents spent significant time with their grandchildren, as well as Mother, until about three months after Father’s death. When Mother began dating and later cohabitating with her current husband, the trial court found that significant discord arose between the parties, eventually resulting in a total breakdown in communication. The trial court’s findings, however, fail to recognize that the discord and resulting limitations on visits were the direct result of the actions and attitudes of Grandparents towards Mother regarding her relationship with S.W.5 Cf. In re C.L.H., slip op. at 15, __ N.E.2d __ (“Grandparents did not have clean hands when they filed their petition for visitation. Confrontations initiated by Grandparents created unnecessary conflict and stress within the family”). Grandmother and Grandfather freely admitted at trial that they had made cruel comments to Mother. Further, they admitted that soon after the blow-up on Mother’s Day, Mother was informed that she was no longer wanted in their home during visits with the children (the youngest of which was only four months old at the time). Mother explained at trial that this constraint, imposed by Grandparents, necessarily changed the amount of time the children were going to be at their home because, as a full-time working mother, she was “going to jealously guard [her] parenting time with [her] kids.” Transcript at 65. We find nothing unreasonable about Mother’s position in this regard and disagree with the trial court’s conclusion that Mother was unable to articulate any credible reason to restrict
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We disagree with the trial court that a primary reason Mother limited contact between Grandparents and the children was because of her attitude that Grandparents were sad and life must go on. On the contrary, the evidence reveals that the family discord and reduced contact were caused by Grandparents’ negative attitudes. While they were certainly entitled to their grieving period, they were not free, without consequence, to turn that grief into anger toward Mother.
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visitation. Though reduced, Grandparents continued to enjoy visitation with the children throughout the summer. The trial court found that visitation was reduced to “very little to no time by summer 2008” and concluded that Mother had “constructively denied meaningful contact with the children”. Appendix at 6, 8. Among others, we find that these findings and conclusions are clearly erroneous. The timing of every visit might not have been optimal for Grandparents, but the evidence reveals that they had visitation with the children on a weekly basis during the summer, often twice a week, up until the filing of their petition.6 In fact, a week before filing the petition, Grandparents enjoyed three visits in one week. One of these visits was over Labor Day weekend and included an overnight with G.M. Grandparents’ contact with the children over the summer was far from insignificant. The trial court concluded that Grandparents were entitled to “consistent and predictable” visitation with the children. Appendix at 8. We have previously observed, however, that “the Act only contemplates occasional, temporary visitation as found to be in the best interest of the child.” Swartz v. Swartz, 720 N.E.2d at 1222. This is exactly the type of visitation Mother was allowing prior to the filing of the instant petition, as well as after.7 The trial court’s decision to grant court-ordered visitation to Grandparents was clearly
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There was a one- or two-week period in which Grandparents did not see the children. The evidence reveals, however, that this was in the spring, not summer, when Mother began dating S.W. and the family discord began.
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After the petition was filed, Grandparents did not see the children in the month of September, outside of G.M.’s soccer games. This was during the time that the parties were negotiating a temporary visitation schedule, and it is not clear that Mother denied visitation during this brief period. To be sure, the evidence reveals that within a week of the petition being filed, Mother proposed a temporary visitation schedule to Grandparents through her counsel.
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erroneous. In their grief over losing their son, Grandparents’ urge to hold close to their grandchildren is understandable. Unfortunately, they have attempted to do so while pushing the children’s mother, a fit mother, away. Mother clearly desires for her children to have a close relationship with Grandparents, despite the wounds they have inflicted upon her. In time, these wounds will likely heal, and Grandparents are well advised not to create new ones. There is no doubt that Grandparents and Mother dearly love G.M. and B.M. In the best interests of the children, as well as Father’s memory, Mother and Grandparents need to put aside their recent differences and move forward.8 In doing so, Grandparents must accept that they are not entitled to visitation on their terms. As set forth above, Mother is best suited to schedule the children’s visits, ideally after consultation with Grandparents. Regardless, the facts and circumstances presented here do not warrant state intervention. Judgment reversed. NAJAM, J., and VAIDIK, J., concur.
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We note that by all accounts Mother and Grandparents had a strong, loving relationship for many years and that this relationship soured only four or five months before the instant petition was filed.
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