Erica Manis v. Trista McNabb

FILED
Jun 11 2018, 8:57 am

CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court

ATTORNEY FOR APPELLANT
Dorothy Ferguson
Anderson, Indiana

IN THE
COURT OF APPEALS OF INDIANA

Erica Manis, June 11, 2018
Appellant-Petitioner Court of Appeals Case No.
18A-GU-96
v. Appeal from the Madison Circuit
Court
Trista McNabb, The Honorable Thomas Newman,
Appellee-Respondent Jr., Judge
The Honorable Christopher A.
Cage, Master Commissioner
Trial Court Cause No.
48C03-1512-GU-593

Baker, Judge.

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[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.

1
The record does not reveal what prompted Guardian to file her petition or the substance of any pleadings or
hearings regarding the appointment of a temporary, and later, a permanent, guardian.

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[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.

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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.

***

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
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 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.

***

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.

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 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.

***

CONCLUSIONS OF LAW

***

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

2
The record does not reveal if or when Mother consented to the guardianship.

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 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. . . .

***

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.

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 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.

3
Guardian has not filed an appellate brief in this case. Accordingly, we may reverse if Mother presents a
prima facie case of error. In re Riddle, 946 N.E.2d 61, 70 (Ind. Ct. App. 2011). “Prima facie error is error at
first sight, on first appearance, or on the face of it.” Sand Creek Country Club, Ltd. v. CSO Architects, Inc., 582
N.E.2d 872, 876 (Ind. Ct. App. 1991) (internal quotation marks and citation omitted).

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 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. Mother also contends that the evidence did not support the trial

court’s findings of fact or conclusions of law.

[8] Indiana Code section 29-3-12-1(c)(4) provides that the trial court may terminate

any guardianship when the guardianship is no longer necessary. “All findings

and orders of the trial court in guardianship proceedings are within its

discretion.” In re Guardianship of Hollenga, 852 N.E.2d 933, 936 (Ind. Ct. App.

2006) (citing I.C. § 29-3-2-4(a)). We review custody decisions for error, with a

“preference for granting latitude and deference to our trial judges in family law

matters.” Matter of Guardianship of I.R., 77 N.E.3d 810, 813 (Ind. Ct. App.

2017). In determining whether the trial court erred, we review the court’s

findings and conclusions, which we may not set aside unless they are clearly

erroneous. Id. We will consider the evidence most favorable to the judgment

with all reasonable inferences drawn in favor of the judgment, and we will not

reweigh the evidence nor will we reassess the credibility of witnesses. Id.

[9] Pursuant to Indiana Code section 31-14-13-6, child custody may not be

modified unless the modification is in the best interests of the child and there is

a substantial change in one or more of the factors that the court may consider

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 under section 31-14-13-2.4 In re Guardianship of L.R.T., 979 N.E.2d 688, 690

(Ind. Ct. App. 2012). When a parent initiates an action to reobtain custody of a

child who has been in the custody of another, the burden of proof does not shift

to the parent, but instead is on the third party. Matter of Guardianship of I.R., 77

N.E.3d at 813. There is a strong presumption that a child’s interests are best

served by placement with the natural parent. Id. A parent’s burden to show a

modification of custody is justified is “minimal,” and after meeting “this

‘minimal’ burden of persuasion to terminate the guardianship, the third party

has the burden to prove by clear and convincing evidence that the child’s best

interests are substantially and significantly served by placement with another.”

Id. (internal quotation marks and citation omitted).

[10] Mother argues that the trial court erred by finding that it was in Child’s best

interest for the guardianship to continue in light of four findings of fact that the

trial court made: that Mother’s medication had helped her, that Mother has a

support network in place, that family and friends have seen a change in Mother

and that Mother watches her friend’s grandchildren, and that Mother manages

her own appointments.

4
Relevant factors include (1) the age and sex of the child, (2) the wishes of the child’s parents, (3) the wishes
of the child, (4) the interaction and interrelationship of the child with the child’s parents, siblings, and any
other person who may significantly affect the child’s best interest, (5) the child’s adjustment to home, school,
and community, (6) the mental and physical health of all individuals involved, (7) evidence of a pattern of
domestic or family violence by either parent, and (8) evidence that the child has been cared for by a de facto
custodian.

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[11] Initially, we note that Mother provided an incomplete record that does not

include Guardian’s petitions for temporary and permanent guardianship. Thus,

we do not know what prompted Guardian to file her petitions, and we are

unable to compare Mother’s situation at the time of the October 12, 2017,

hearing to her situation when the guardianship was ordered. As a result, we are

unable to discern whether there was a substantial change in one or more of the

factors that a trial court considers for modification of child custody. In

addition, Mother’s argument regarding these four findings of fact is a request

that we reweigh the evidence and reassess the credibility of the witnesses—an

invitation which we decline.

[12] During the hearing, testimony was elicited that Mother lives with her

grandparents, is financially dependent on them for her needs, and would be

financially dependent on them for Child’s needs; that Mother’s grandmother

had asked her twice to leave their home for being disrespectful, for using her

grandmother’s credit cards without permission, and for using drugs; that

Mother has been unemployed for nearly two years and that her most recent

attempt at working ended after one-half day; and that Mother is responsible for

three recent car accidents, two of which resulted in totaled cars. In other

words, the evidence showed that Mother’s living situation was not completely

stable; that Mother was not working on becoming self-sufficient; and that

Mother was either unable or unwilling to make safe decisions for herself.

Guardian met her burden to prove by clear and convincing evidence that

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 Child’s best interests are substantially and significantly served by placement

away from Mother.

[13] Mother also challenges three of the trial court’s findings of fact and conclusions

of law. First, she challenges the trial court’s finding of fact that she has not had

any contact with Child since summer of 2016, arguing that the lack of contact

between Mother and Child cannot be attributed to Mother. The record

supports this finding, and we note that the trial court did not attribute it to

Mother nor did it base its conclusion on this finding. Instead, the trial court

implicitly acknowledged Guardian’s role in keeping Mother from Child,

concluding that Mother’s threat to Guardian was not credible and should not

prevent her from having contact with Child and that Guardian should act to

remove Child from being a protected party under the protective order.

[14] Mother also challenges the trial court’s conclusion that “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.” Appealed Order p.

6. Mother argues that this conclusion is an error because she believed that the

guardianship was ordered based on her substance abuse issues and recent arrest.

During cross-examination, Guardian’s counsel asked Mother about a mental

health record from March 2, 2017, that reported that Mother presented

symptoms of substance abuse and appeared to be impaired; Mother denied that

she had been abusing substances or impaired at that time. Guardian’s counsel

also asked about a mental health record from September 21, 2016, that stated

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 that Mother had arrived at the treatment center acting suspicious and odd and

had admitted herself. Mother denied admitting herself for treatment or that she

had acted suspicious or odd. This testimony supports the trial court’s

conclusion that Mother believed that she did not have mental health or

substance abuse problems.

[15] As to the trial court’s conclusion that Mother believed Child was placed under a

guardianship because she was unemployed, we agree with Mother that the

record does not support this conclusion. However, Mother fails to show how

she was prejudiced by this conclusion or how her belief about why the

guardianship was ordered affects the outcome of this case. Therefore, Mother’s

argument on this point is unavailing.

[16] Finally, Mother contests the trial court’s conclusion that her “subsequent arrest,

[and] lack of acceptance of her history of drug use 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.” Id.

Mother argues that this conclusion is a contradiction that contrasts the findings

of fact. We see no contradiction. The trial court recognized that although

Mother had made some improvements in her life, she could have progressed

even further in establishing self-sufficiency if she had taken responsibility for her

actions and avoided another arrest and additional drug use. This conclusion is

easily supported by the findings of fact, which recognized that Mother had

taken some positive steps in her life but also continued to face real, and often

self-imposed, obstacles.

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[17] In sum, the trial court did not err by denying Mother’s petition or in its findings

of fact and conclusions of law.

II. Parenting Time
[18] Mother next argues that the trial court erred by concluding that it lacked

statutory or other authority to determine parenting time for Mother.

[19] The issue of whether a trial court has statutory or other authority to determine

and order parenting time for a parent whose child is placed with a guardian is a

matter of first impression.5 While no statute explicitly grants trial courts this

authority in guardianship proceedings, no statute precludes it, either. And

because our General Assembly has clearly intended for noncustodial parents to

have parenting time unless it would endanger or impair the physical or mental

health of the child, we find that a trial court has the authority to determine and

order parenting time for a parent whose child is placed with a guardian.

[20] The Fourteenth Amendment to the United States Constitution protects the

traditional right of parents to establish a home and raise their children. Bester v.

Lake Cty. Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). Our

society considers the parent-child relationship to be “one of the most valued

relationships.” Id. (internal quotation marks and citation omitted). The liberty

5
Nonetheless, trial courts have awarded parenting time in this situation. See, e.g., In re B.J.N., 19 N.E.3d 765,
769-70 (Ind. Ct. App. 2014) (discussing restriction of parenting time and requirement that it be supervised for
father whose child was placed with a guardian); see also In re Guardianship of A.L.C., 902 N.E.2d 343, 355-58
(Ind. Ct. App. 2009) (trial court determined that father should have parenting time with child who was
placed with a guardian because it was in child’s best interests).

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 interest “‘of parents in the care, custody, and control of their children . . . is

perhaps the oldest of the fundamental liberty interests recognized by this

Court.’” Perkinson v. Perkinson, 989 N.E.2d 758, 761 (Ind. 2013) (quoting Troxel

v. Granville, 530 U.S. 57, 65 (2000)). “‘It is cardinal with us that the custody,

care and nurture of the child reside first in the parents, whose primary function

and freedom include preparation for obligations the state can neither supply nor

hinder.’” Id. (quoting Prince v. Massachusetts, 321 U.S. 158, 166 (1944)). Our

society reflects “‘a strong tradition of parental concern for the nurture and

upbringing of their children. This primary role of the parents in the upbringing

of their children is now established beyond debate as an enduring American

tradition.’” Id. (quoting Wisconsin v. Yoder, 406 U.S. 205, 232 (1972)).

[21] Our Supreme Court explained that “‘Indiana has long recognized that the right

of parents to visit their children is a precious privilege that should be enjoyed by

noncustodial parents,’” and thus a noncustodial parent is “‘generally entitled to

reasonable visitation rights.’” Id. at 762 (quoting Duncan v. Duncan, 843 N.E.2d

966, 969 (Ind. Ct. App. 2006)). Indiana Code section 31-17-4-2 provides that

parenting time rights shall not be restricted unless there is a finding “that the

parenting time might endanger the child’s physical health or significantly

impair the child’s emotional development.” Our appellate courts have

interpreted this statute to require evidence establishing that visitation would

endanger or impair the physical or mental health of the child. Perkinson, 989

N.E.2d at 763. A trial court is empowered to specify and enforce the visitation

rights of the noncustodial parent pursuant to Indiana Code. Id. at 762.

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[22] The preamble to the Indiana Parenting Time Guidelines states that the

Guidelines “are based on the premise that it is usually in a child’s best interest

to have frequent, meaningful and continuing contact with each parent.” The

Guidelines further provide that “[a] child has the right both to support and

parenting time . . . .” Ind. Parenting Time Guidelines § I(E)(5). Indiana has a

“legislatively-expressed presumption in favor of parenting time with the

noncustodial parent.” Perkinson, 989 N.E.2d at 764. “[N]ot only does a

noncustodial parent have a presumed right of parenting time, but the child has

the correlative right to receive parenting time from the noncustodial parent

because it is presumed to be in the child’s best interest.” Id. “Extraordinary

circumstances must exist to deny parenting time to a parent, which necessarily

denies the same to the child.” Id. at 765.

[23] Thus, our General Assembly clearly intended for parents to have parenting

time, barring exceptional circumstances, when the parent and child do not live

together. Despite the lack of a statute explicitly addressing parenting time for a

parent whose child has been placed with a guardian, parenting time for such a

parent is indisputably within the realm of what our General Assembly

envisioned when considering the rights of a parent and the best interests of the

child. A trial court that orders parenting time for such a parent is, therefore,

effecting the legislature’s intent. Accordingly, we hold that a trial court has the

authority to determine whether parenting time is warranted and order

reasonable parenting time for a parent whose child is placed with a guardian.

In so doing, a trial court must balance a parent’s right to visit his or her child

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 with the best interests of the child. And in ordering parenting time in these

cases, it would be best practice for a trial court “to make specific findings to

support its parenting time order.” Perkinson, 989 N.E.2d at 765.

[24] Here, Mother has clearly expressed a desire to be part of Child’s life. At the

time of the October 12, 2017, hearing, she had not seen Child since July 2016.

Regarding Mother’s request for parenting time, the trial court simply accepted

Guardian’s opinion as to whether Mother should be able to see Child.6 And in

its order, the trial court ordered Guardian to “take all steps necessary to remove

the child from being a protected party so as to permit contact or visitation” and

stated that it would consider “the continued lack of contact with mother” when

reviewing the continuing appropriateness of Guardian to serve as the guardian

in the future. Appealed Order p. 6-7. In other words, the trial court allowed a

partial third party to decide whether and how much Mother should be able to

enjoy her constitutionally-protected “‘precious privilege’” and right to visit her

child. Perkinson, 989 N.E.2d at 762 (quoting Duncan, 843 N.E.2d at 969)).

[25] We find that the trial court erred. First, for the reasons discussed above, we

find that the trial court erred by not considering Mother’s request for parenting

time or determining whether and how much parenting time was appropriate.

Second, we find that the trial court erred by deferring to Guardian’s judgment

6
During the hearing, the trial court asked Guardian under what circumstances she thought it would be
appropriate for Mother and Child to visit; Guardian’s counsel then asked Guardian what Mother would need
to do to obtain visitation or terminate the guardianship.

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 about Mother’s parenting time. We simply do not understand why the trial

court would defer to Guardian, a person with a subjective perspective and

invested stake in the matter, about Mother’s constitutionally-protected right to

see her son. Guardian, having disregarded Mother’s position as Child’s mother

and Mother’s wishes to see Child, had already prevented Mother from seeing

Child for well over a year for a reason that the trial court concluded was

unfounded. And still the trial court left future parenting time to Guardian’s

discretion, thereby potentially further depriving Mother and Child of time

together and an opportunity to develop a meaningful relationship and bond.

[26] We cannot state strongly enough that a trial court should not allow a third party

alone to determine a parent’s parenting time with his or her child during

guardianship proceedings. If parties cannot agree on their own to a plan that is

in the best interests of the child, then the trial court must take an active role in

developing one. See Ind. Parenting Time Guidelines § II(A) (“When the parties

cannot reach an agreement on a parenting plan, the specific provisions which

follow are designed to assist parents and the court in the development of a

parenting plan. They represent the minimum recommended time a parent

should have to maintain frequent, meaningful, and continuing contact with a

child”) (emphasis added). We reverse the trial court’s order that it cannot

determine parenting time for Mother and remand for further proceedings

consistent with this opinion.

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[27] The judgment of the trial court is affirmed in part, reversed in part, and

remanded for further proceedings.

Kirsch, J., and Bradford, J., concur.

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