MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
FILED
this Memorandum Decision shall not be May 11 2018, 8:31 am
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEES
Matthew C. Maples Pamela G. Grant-Taylor
Hocker & Associates, LLC Law Office of Pamela Grant
Indianapolis, Indiana Taylor
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In re the Guardianship of: A.E.S. May 11, 2018
Glen Scisney, Court of Appeals Case No.
49A04-1708-GU-1923
Appellant-Respondent,
Appeal from the Marion Superior
v. Court
The Honorable Steven R.
Saleem Adams and Tamara Eichholtz, Judge
Adams, Trial Court Cause No.
49D08-1604-GU-11848
Appellees-Petitioners.
Brown, Judge.
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[1] Glen Scisney appeals the trial court’s order naming Saleem and Tamara Adams
as the guardians of A.E.S. (“Child”). The trial court issued a similar order
naming the Adamses as the guardians of A.S.S. under cause number 49D08-
1604-GU-11850 (“Cause No. 850”). A.S.S. is the twin sibling of Child (Child
and A.S.S., together, the “Children”). We affirm the court’s appointment of
the Adamses as the guardians of Child under this cause, and we also issue a
memorandum decision today under cause number 49A02-1708-GU-1921
(“Cause No. 1921”) affirming the court’s appointment of the Adamses as the
guardians of A.S.S. in Cause No. 850.
Facts and Procedural History
[2] Child was born on January 27, 2016, to Kimberly Scisney (“Mother”). Mother
was overwhelmed with the idea of parenting the Children and approached the
Adamses, who attended the same church as Mother, as potential persons who
might adopt the Children. The Children were placed with the Adamses on
March 20, 2016, and Mother later signed a power of attorney and health
powers of attorney granting attorney-in-fact powers to the Adamses to act on
behalf of the Children. A short time later, Mother died as a result of an
automobile accident. On April 5, 2016, the Adamses filed a petition requesting
that the court appoint them as Child’s guardians and stating that Child had
been in their care since March 20, 2016, when Mother expressed her desire for
Child to live with them, and that both of Child’s parents had signed a power of
attorney on March 28, 2016. The court appointed a guardian ad litem (the
“GAL”), and the GAL filed a report with the court on June 20, 2016. The
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court issued an order stating that Scisney is the maternal grandfather of Child
and granting temporary guardianship of Child to the Adamses. On August 17,
2016, Scisney filed a motion to contest the appointment of guardianship, and
on August 25, 2016, he filed a counter-petition requesting that the court appoint
him as the permanent guardian of Child.
[3] On December 5, 2016, the court held a hearing at which it admitted into
evidence the GAL’s report and other documentary evidence and heard
testimony from Scisney, the Adamses, the GAL, and Devante Connor, the
putative father of the Children, among others. On June 13, 2017, the court
issued an order naming the Adamses as the guardians of Child. Scisney filed a
motion to correct error, which the trial court denied. Discussion
[4] The issue is whether the trial court abused its discretion in naming the Adamses
as guardians of Child. The trial court is vested with discretion in making
determinations as to the guardianship of an incapacitated person or minor. In
re Guardianship of A.L.C., 902 N.E.2d 343, 352 (Ind. Ct. App. 2009). This
discretion extends to both its findings and its order. Id. We apply the abuse of
discretion standard to review the trial court’s findings and order. Id. Because
the court set forth findings, we look to those findings to determine whether the
court abused its discretion. See id. The findings will not be set aside unless
clearly erroneous. Id. Findings are clearly erroneous when the record lacks any
facts or reasonable inferences to support them. Id. Further, we will not set
aside the judgment unless clearly erroneous. Id. A judgment is clearly
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erroneous when unsupported by the findings of fact and conclusions thereon.
Id.
[5] Scisney argues that the trial court’s findings are not supported by the evidence,
that he is the most suitable person to be named guardian of Child, and that it
would be in Child’s best interest that he be named guardian. The Adamses
maintain that the trial court did not err in naming them as the guardians of
Child under Ind. Code § 29-3-5-4, that the GAL’s report admitted into evidence
contained the power of attorney executed by Mother and Connor, and that
Scisney’s argument is a request to reweigh the evidence and reassess the
credibility of witnesses.
[6] The guardianship statutes provide for the appointment of guardians for minors.
See Ind. Code § 29-3-5-1. Ind. Code §§ 29-3-5 set forth proceedings for the
appointment of a guardian, and Ind. Code § 29-3-5-3 provides that, if it is
alleged and the court finds that the individual for whom the guardian is sought
is an incapacitated person or a minor, and the appointment of a guardian is
necessary as a means of providing care and supervision of the physical person
or property of the incapacitated person or minor, the court shall appoint a
guardian under the chapter.
[7] At the time of the December 2016 hearing, Ind. Code § 29-3-5-4 provided:
The court shall appoint as guardian a qualified person or persons
most suitable and willing to serve, having due regard to the
following:
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(1) Any request made by a person alleged to be an
incapacitated person, including designations in a
durable power of attorney under IC 30-5-3-4(a).
(2) Any request contained in a will or other written
instrument.
(3) A designation of a standby guardian under IC 29-3-
3-7.
(4) Any request made by a minor who is at least
fourteen (14) years of age.
(5) Any request made by the spouse of the alleged
incapacitated person.
(6) The relationship of the proposed guardian to the
individual for whom guardianship is sought.
(7) Any person acting for the incapacitated person
under a durable power of attorney.
(8) The best interest of the incapacitated person or
minor and the property of the incapacitated person
or minor.
(Subsequently amended by Pub. L. No. 194-2017, § 7 (eff. Jul. 1, 2017)).1
[8] Ind. Code § 29-3-5-5 provided:
1
The 2017 amendment inserted a new subsection (2) and redesignated former subsections (2) to (8) as
subsections (3) to (9). The new subsection (2) provides: “(2) Any request made for a minor by: (A) a parent
of the minor; or (B) a de facto custodian of the minor, including a designation in a power of attorney under
IC 30-5-3-4(b) or IC 30-5-3-4(c).”
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(a) The following are entitled to consideration for
appointment as a guardian under section 4 of this chapter
in the order listed:
(1) A person designated in a durable power of attorney.
(2) A person designated as a standby guardian under IC
29-3-3-7.
(3) The spouse of an incapacitated person.
(4) An adult child of an incapacitated person.
(5) A parent of an incapacitated person, or a person
nominated by will of a deceased parent of an
incapacitated person or by any writing signed by a
parent of an incapacitated person and attested to by
at least two (2) witnesses.
(6) Any person related to an incapacitated person by
blood or marriage with whom the incapacitated
person has resided for more than six (6) months
before the filing of the petition.
(7) A person nominated by the incapacitated person
who is caring for or paying for the care of the
incapacitated person.
(b) With respect to persons having equal priority, the court
shall select the person it considers best qualified to serve as
guardian. The court, acting in the best interest of the
incapacitated person or minor, may pass over a person
having priority and appoint a person having a lower
priority or no priority under this section.
(Subsequently amended by Pub. L. No. 194-2017, § 8 (eff. Jul. 1, 2017)).
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[9] Pursuant to Ind. Code § 29-3-5-4, the court must give due regard to the best
interest of a minor and, acting in the best interest of the minor, may pass over a
person having priority and appoint a person having a lower priority or no
priority under Ind. Code § 29-3-5-5. In re Guardianship of A.L.C., 902 N.E.2d at
353. The key consideration, in essence, in selecting a guardian for Child is
whether the choice of guardian is in Child’s best interest. See id.
[10] As we observe in our memorandum decision in Cause No. 1921, to the extent
Scisney contests the trial court’s findings in paragraphs 7, 8, 14 and 18 of its
June 13, 2017 order, we observe that Tamara testified that the Children had
come into her care and custody on March 20, 2016, and that Mother had
contacted her and Saleem shortly after the Children were born. The GAL’s
report indicated that Mother was overwhelmed with the idea of single
parenthood prior to the birth of the Children, that she attended the same church
as the Adamses, and that she had approached the Adamses as potential persons
who might adopt the Children. The GAL’s report stated that “the Adams[es]
requested that they be given power of attorney for the children and health
power of attorney” and “[t]hey received and kept the executed documents
(which were also signed by the putative father, despite his legal claim as a
father/parent being tenuous, if not nonexistent), and the GAL reviewed these
during the home visit.” Guardian Ad Litem Exhibit I at 5. The GAL’s report
included attached executed documents including a power of attorney and
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health powers of attorney dated in March 2016 and signed by Mother which
granted attorney-in-fact powers to the Adamses to act on behalf of Child.2
[11] The court heard testimony regarding when the Children were placed in the care
of the Adamses and the employment of the Adamses. According to the GAL’s
report, Roberta Edwards, the Children’s maternal grandmother, stated that she
was of the opinion that Scisney had been verbally abusive to Mother, she had
observed Mother crying and upset after speaking with Scisney on the phone a
few times, and Mother had unequivocally expressed a desire for the Adamses to
have and hopefully adopt the Children. Crista Spiller, Mother’s cousin,
reported that Mother “had stated to her that [Scisney] was the very last person
on earth that she would want to have her children” and that Scisney “had told
[Mother] he would disown her if she ever got pregnant, and that he did in fact
do so when he found out.” Id. at 10. Scisney reported that he had counseled
his daughter not to become pregnant out of wedlock and having such
“bastards” would be wrong and greatly disappoint him, that Mother would
become upset at this fatherly advice, and that in no way was the interaction
ever abusive or less than fatherly or loving. Id. at 12. The report indicated that
it was widely acknowledged that Mother desired that the Children be placed
with the Adamses. We cannot say that the record lacks any facts or reasonable
2
The Power of Attorney for Child instrument was also signed by Connor.
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inferences to support the court’s findings in paragraphs 7, 8, 14 and 18 of its
order.
[12] In addition, as we observe in our memorandum decision in Cause No. 1921,
the record reveals that the court admitted evidence and testimony related to the
suitability of the Adamses and Scisney as guardians and the considerations set
forth in Ind. Code §§ 29-3-5-4 and -5. The court admitted evidence regarding
the parties’ financial resources, their employment and earnings, the Adamses’
care of the Children, the health histories of the Children, the history and
stability of the parties’ housing, the fact the Adamses obtained money from Go
Fund Me funds established to solicit donations for the Children and Mother,
the reports regarding Mother’s relationship with Scisney and her desire for the
Children to be placed with the Adamses, and the Power of Attorney for Child
executed by Mother and Connor in favor of the Adamses with respect to the
care of Child. The court was able to consider the evidence, including the
evidence of the parties’ resources and Mother’s wishes, in exercising its
discretion in determining the most suitable persons to be appointed as guardians
of Child. Scisney has not shown that the court’s findings are not supported by
the record or that its judgment is not supported by its findings.
[13] Based upon the evidence and testimony presented at the December 5, 2016
hearing, we are unable to conclude that the trial court abused its discretion in
appointing the Adamses as guardians of Child.
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Conclusion
[14] For the foregoing reasons, we affirm the order of the trial court naming the
Adamses as guardians of Child.
[15] Affirmed.
Bailey, J., and Crone, J., concur.
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