Jenny Stacey v. Judy Morrow, et al. (NFP)

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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. ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEES: CASSANDRA HINE Indianapolis, Indiana RYAN P. RAY Indianapolis, Indiana FILED Jun 11 2010, 10:08 am IN THE COURT OF APPEALS OF INDIANA J.S., Appellant-Respondent, vs. J.M. and M.M., Appellees-Petitioners. ) ) ) ) ) ) ) ) ) No. 75A03-0911-CV-535 APPEAL FROM THE STARKE CIRCUIT COURT The Honorable Roger V. Bradford, Special Judge Cause No. 75C01-0809-MI-41 June 11, 2010 MEMORANDUM DECISION - NOT FOR PUBLICATION DARDEN, Judge CLERK of the supreme court, court of appeals and tax court STATEMENT OF THE CASE J.S. ( Mother ) appeals the trial court s order granting visitation with her minor daughter C.G.M. ( C. ) to C. s paternal grandparents (collectively, Grandparents ) -J.M. ( Grandmother ) and M.M. ( Grandfather ). We affirm. ISSUES 1. Whether the trial court abused its discretion when it found that it was in C. s best interest that Grandparents have visitation with her. 2. Whether the trial court abused its discretion when it granted Grandparents visitation with C. for seven hours on each Sunday. FACTS Mother and Grandparents son S. are the unmarried parents of C., who was born on September 21, 2006. According to the Chronological Case Summary, on September 11, 2008, Grandparents filed a petition for grandparent visitation.1 At the evidentiary hearing on August 6, 2009, the following evidence was heard. Subsequent to C. s birth, Mother and S. had an on and off relationship. (Tr. 18). When things were good, Grandparents would see C.; but when Mother and S. were at odds, Mother would not allow them any contact with her. At some point after being adjudicated C. s father, S. sought a court order for visitation. On July 1, 2008, an order 1 Mother did not include the petition in her Appendix. 2 was issued granting him visitation each Sunday from 9 a.m. until 4 p.m. 2 Apparently Mother did not comply with the order. In December of 2008, the court admonished Mother that if she didn t allow visitation he was going to put [her] in jail, (tr. 32), and a second order was issued for S. to have visitation.3 S. s visitation with C. began in January 2009, and Grandparents saw C. for seven hours each Sunday during S. s visitation. After visitation on May 3, 2009, S. was jailed for forgery.4 At the hearing on August 6, 2009, Grandparents testified that whenever Mother was not getting along with S., they were not able to see C. They further testified that after S. s May 3, 2009 visitation, Mother refused to allow Grandparents any contact with C. Mother admitted this, and further admitted that if there were no court order to do so, she would never let Grandparents see C.5 Grandmother testified to her healthy relationship with her other grandchildren, and her desire to have a relationship with C., for C. to know [her] as a grandmother. (Tr. 7). She further testified that during the months when they had seen C. in their home weekly, C. was very comfortable with them. (Tr. 19). Grandfather testified that C. s 2 At the August 6, 2009 evidentiary hearing, the trial court took judicial notice of the July 2008 order. However, Mother did not include the order in her Appendix. 3 The trial court also took judicial notice of this December 2008 order at the August 2009 evidentiary hearing. Again, it is not included in the Appendix submitted with Mother s appeal. 4 Father was released after eighty-eight days, on July 29, 2009. 5 In response to a question from her own counsel, Mother testified that she would not object to Grandparents having supervised parenting time with [C.]. (Tr. 38). 3 visits to their home had been good, and that they had had a good relationship with C. she likes us and she loves us. (Tr. 22). Mother testified that she did not approve of C. seeing Grandparents. (Tr. 31). When asked what [she] mean[t] by that, Mother answered that Grandparents don t put in the plug-in things where the kids cannot stick their fingers in it ; did not always put up the gate for their stairway that is open, had been drinking alcohol and become intoxicated in front of C.; and had smok[ed] in front of C. (Tr. 31, 40, 32). Grandmother testified that all electrical sockets were now covered; a locked door now closed off the stairway; that she did not drink, but on a single occasion in the past twentyfive years, Grandfather had become intoxicated at his son s wedding; and that they never smoked around [their] grandchildren always going outside. (Tr. 50). Mother testified that she was getting ready to report to Family and Children s Services [FCS] her belief that S. had molested C. (tr. 29); however, she admitted that her previous report to FCS that S. had molested her oldest daughter had been investigated and found unsubstantiated. At the conclusion of the August 6, 2009, hearing, the trial court ordered that Grandparents have visitation with C. each Sunday from 9:00 a.m. until 4:00 p.m. On August 26, 2009, Mother filed a motion to correct error, asserting that the trial court erred when it failed to enter findings of fact and conclusions of law as required by Indiana Code section 31-17-5-6. 4 On October 7, 2009, according to the Chronological Case Summary, the trial court conducted an additional hearing at which evidence [was] submitted. (App. 6). 6 On October 16, 2009, the trial court issued its order -- with findings of fact and conclusions of law -- granting Grandparents petition for visitation. It began by noting that C. was now three years old ; it found that Mother s testimony made abundantly clear her great . . . animosity toward C. s father, S., but that there was no evidence presented that [Grandparents] . . . have ever done anything to harm C. or that would put her in a position to be harmed. (App. 8, 9). It further found that Grandparents had a previous relationship with C. Id. Finally, it concluded that it was in the best interests of C. for [Grandparents] . . . to have visitation with her. Id. DECISION Our Supreme Court has stated that [a]lthough grandparents do not have the legal rights or obligations of parents and do not possess a constitutional liberty interest with their grandchildren, Indiana Code section 31-17-5-1, commonly referred to as the Grandparent Visitation Act, represents a Legislative recognition that a child s best interest is often served by developing and maintaining contact with his or her grandparents. K.I. ex rel. J.I. v. J.H., 903 N.E.2d 453, 462 (Ind. 2009) (quoting Swartz v. Swartz, 720 N.E.2d 1219, 1221 (Ind. Ct. App. 1999)). The Act represents the Legislature s balancing of two competing interests: the rights of the parents to raise 6 No transcript from this hearing is included in Mother s Appendix. 5 their children as they see fit and the rights of grandparents to participate in the lives of their grandchildren. Id. (further quoting Swartz at 1222). K.I., however, was not litigated under the Grandparent Visitation Act. Id. Therefore, it did not apply a standard of review in that regard. In Swartz, we held that [t]he determination of the best interests of the child is committed to the sound discretion of the trial court. 720 N.E.2d at 1221. Hence, a trial court s order awarding grandparent visitation under the Act will be reversed on appeal only upon a showing of an abuse of that discretion. Id. An abuse of discretion exists where the trial court s decision is clearly against the logic and effects of the facts and circumstances before the trial court or the reasonable, probable deductions to be drawn therefrom. Id. We will not reweigh the evidence or judge the credibility of witnesses. Id. 1. Grant of Visitation Mother argues that the trial court abused its discretion when it granted Grandparents visitation with C.7 She first reminds us that when considering grandparent visitation, there is a presumption that a fit parent acts in his or her child s best interests, K.I., 903 N.E.2d at 462; and asserts that Grandparents did not even attempt to rebut the presumption that she is a fit parent acting in C. s best interest. Mother s Br. at 7. However, we believe that Mother s testimony to the trial court regarding why she did not want C. to have any contact with Grandparents presents a credibility determination for Mother makes the broad claim that the evidence did not support the Court s findings and the . . . findings did not support its conclusions. Mother s Br. at 5. However, having made that contention, she does not challenge any of the findings or develop it. 7 6 the trier of fact. Mother enumerated her reasons for not approv[ing] contact between C. and Grandparents, (tr. 31), and the trial court heard responsive testimony. The trial court then weighed the evidence and witness credibility and concluded that regardless of Mother s fitness as a parent, her desire to bar C. s contact with Grandparents was not in C. s best interest. Mother further argues that the record lacks evidence presented by [Grandparents] showing that visitation with them is in C[.] s best interest. Mother s Br. at 7. To the contrary, the trial court heard testimony that Grandparents had a long-term, stable marriage and home life; they enjoyed a regular healthy relationship with other grandchildren; they had treasured their time with C. when they were allowed to see her, and she loved them and had enjoyed their company in return; they were being refused contact with C.; and they desired to develop and maintain a loving grandparental relationship with C. This evidence before the trial court supports its conclusion that it is in C. s best interest for Grandparents to have visitation with her. Therefore, we find no abuse of discretion in this regard. 2. Amount of Visitation Time Mother also argues that the trial court abused its discretion when it granted Grandparents visitation with C. from 9:00 a.m. until 4:00 p.m. each Sunday. She contends that such exceeds the bounds of occasional, temporary visitation contemplated by the Act. Mother s Br. at 9. We are not persuaded. 7 In Swartz, we stated that [v]isitation rights conferred by the Act are not a substantial infringement on the parent s fundamental rights because the Act only contemplates temporary visitation as found to be in the best interest of the child. 720 N.E.2d at 1222 (citing Sightes v. Barker, 684 N.E.2d 224, 230 (Ind. Ct. App. 1997), trans. denied). We find the critical principle in that statement to be that the visitation is that which is in the best interest of the child. Id. Further, our Supreme Court expressly observe[d] in K.I. that the amount of visitation is left to the sound discretion of the trial court. 903 N.E.2d at 462 (emphasis added). We find that the trial court did not abuse its discretion when it determined that it was in C. s best interest for Grandparents to have visitation with her. Based upon the evidence presented and the fact that C. was three years of age at the time, we do not find that the trial court s grant of visitation for a seven-hour period each week is an abuse of discretion as exceeding the bounds of occasional, temporary visitation contemplated by the Act. Affirmed. BAKER, C.J., and CRONE, J., concurs. 8

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