APPEAL FROM THE HAMILTON SUPERIOR COURT. The Honorable Steven R. Nation, Judge. Cause No. 29D01-1301-MI-446.
ATTORNEY FOR APPELLANT: KAREN A. WYLE, Bloomington, Indiana.
BROWN, Judge. BARNES, J., concurs. ROBB, J., concurs in part and dissents in part with separate opinion.
K.L. (" Mother" ) appeals the trial court's order granting the petition for visitation filed by E.H., the paternal grandfather of Mother's child. Mother raises two issues which we revise and restate as:
I. Whether the trial court abused its discretion in excluding certain evidence; and
II. Whether the trial court abused its discretion in granting the paternal grandfather's petition for visitation.
FACTS AND PROCEDURAL HISTORY
On May 22, 2009, Mother and W.L. married, and they legally separated in November 2010. In April 2011, Mother and L.H. (" Father" ) began a relationship and at some point Mother became pregnant. Mother and W.L. divorced on September 2, 2011. Father's father, E.H. (" Grandfather" ), and his family welcomed Mother, and Mother went to Grandfather's house on occasion during that time.
On October 15, 2011, Father committed suicide. Immediately following Father's death, Grandfather did not have much contact with Mother due to the devastating nature of the loss.
On October 28, 2011, Mother filed a verified petition to establish paternity. The petition alleged that Mother was pregnant, the child was due on April 13, 2012, that she was not married to Father or anyone else at the time of conception, that Father was the father of the child, and that his date of death was October 15, 2011. The petition also requested that the coroner be ordered to hold a sample of Father's DNA so that genetic testing could be completed upon the child's birth.
On December 27, 2011, Mother moved back in with W.L. On December 28, 2011, Grandfather asked Mother to come to his house so they could talk, and Mother and B.S. went to Grandfather's house in early 2012. Grandfather apologized for not contacting sooner. On March 10, 2012, Mother had a baby shower and she invited Grandfather's family, and Z.H., Grandfather's wife. Grandfather and Z.H.'s daughters attended.
On April 4, 2012, Mother gave birth to L.L. Mother texted Grandfather the following day and invited him and his family to visit with L.L. Grandfather and Z.H. visited Mother and L.L. in the hospital. In early June 2012, Mother brought L.L. to Grandfather's house. After that visit, Grandfather requested on multiple occasions to see L.L. again via text messages, but Mother did not grant any of Grandfather's requests. Grandfather also requested a picture of L.L., but Mother did not provide one.
On August 16, 2012, Grandfather filed a verified motion to intervene in the paternity action alleging that he was Father's father and L.L.'s paternal grandfather. The motion alleged that Father was a Navy veteran and L.L. may be entitled to both Social Security and military benefits. The motion also stated that Grandfather desired visitation with L.L.
On October 8, 2012, the court entered a paternity decree finding that Father was L.L.'s biological father. On January 17, 2013, Grandfather filed a verified petition for grandparent visitation.
On January 25, 2013, the court held a hearing regarding Grandfather's petition for visitation. Z.H. testified that she raised her and Grandfather's five children together, that she works for Noblesville Schools as a special education teacher, and that she was supportive of Grandfather obtaining visitation. Grandfather testified that he works for the Department of Homeland Security, that his family welcomed Mother when she and Father were in a relationship, that he has a close-knit family, and that he did not have much contact with Mother shortly after Father died because he needed time to grieve. Grandfather testified that he apologized for not contacting Mother sooner during his visit with her in early 2012. He explained that it was a delicate situation
because he wanted to be involved with L.L. but did not want to impose on Mother. He further stated that he took care of his children on his own for two to three years, changed their diapers, bathed them, and fed them.
After hearing the testimony of Z.H. and Grandfather, the court indicated that it wanted the parties to speak with a family counselor or therapist. The court compared the arrangement with civil mediation and said that neither party could bring the mediator into court to testify as to what was discussed during the mediation and also informed the parties that anything that they said during counseling would be completely confidential. The court required Grandfather to be responsible for the cost of the family therapist.
On February 11, 2013, the court entered an order requiring the parties to participate in counseling with a counselor/therapist agreed upon by the parties or appointed by the court if the parties were unable to agree. The order stated that it was the court's hope that the parties could settle the matter without further court intervention. On March 6, 2013, Grandfather filed a request for the court to appoint a counselor/therapist, and the court later appointed Mary Halladay.
The mediation was unsuccessful, and the court held another hearing on May 3, 2013. Halladay filed a letter with the court, Grandfather filed a motion to strike the letter, and the court granted Grandfather's motion. At the beginning of the hearing, Mother's counsel moved to introduce the testimony of Halladay, which the court denied. Specifically, the court indicated that it sent the parties to a counselor in the form of a mediation and it wanted the parties to be free to discuss things without the fear of the counselor coming back into court and testifying. Mother's counsel then stated that he would not ask Halladay what was said by the parties and that Halladay would have testified that Grandfather terminated the counseling, that progress was being made, and that she felt if they would have continued they could have developed the trust necessary to make a functioning and workable agreement.
B.S. testified that Mother was stressed about the fact that she may have to share L.L. " with somebody who she doesn't have a relationship with," and that the visit with Grandfather in early 2012 was very awkward and Grandfather spoke very little. Id. at 64.
Mother testified that she lives with W.L. and L.L. and works as an independent subcontractor performing in-home interventions with autistic children on Mondays through Thursdays from about 8:15 until 4:00 or 5:00 and every other Friday from 9:00 until 5:00. Mother stated that she had four or five face-to-face interactions with Grandfather at family gatherings prior to Father's death at which she maybe said " hi, hello," but did not really converse with him. Id. at 79. She expressed concern with the dynamics within Grandfather's family and that the relationship between Grandfather and his daughter did not seem very warm. She described Grandfather as void of emotion, and said that the visit in June with him and L.L. was uncomfortable because he was not really talking to her and it was Z.H. who was mainly spearheading the conversation. Mother expressed worry that Grandfather would cause something negative in her relationship with L.L. and a " big fear" was that the " opportunity to tell [L.L.] when and if about her biological father [would] be taken out of [her] hands." Id. at 85-86. Mother stated:
I have limited time with my daughter. She's so young that she goes to bed so early and I have to work in order to provide for her, which I know is no,
that's not an exception, a lot of parents have to do that. But then my weekends are my time to be with her. It's my time to bond with her and to create this amazing environment and life that I want for her. So I feel that by having to interrupt that and then give her to somebody else, it's just going to upset the balance that I'm trying so desperately to establish.
Id. at 86-87. Mother expressed that she still firmly had trust issues with Grandfather and described him as a stranger to her. She went on to say that L.L. has to have a special kind of putty inserted into her ears before taking a bath or being around water and she did not have enough interaction with Grandfather to be able to say whether she had concerns with him following directives, that Z.H. had displayed a strong personality, and she did not know if her wishes would be honored.
On July 15, 2013, the court granted Grandfather's petition for visitation. In addition to making findings regarding the facts previously mentioned herein, the court in its order stated in part:
4. . . . Father and Mother resided together the summer of 2011 during which time [L.L.] was conceived. While together, Father and Mother attended family functions at Grandfather's home or otherwise with Grandfather's family. The evidence reflects that Father and Mother remained on good terms throughout their relationship. . . .
5. On October 15, 2011, [Father] died by suicide. . . . [Father] had a close relationship with his [Grandfather]. The relationship between Grandfather and Mother was, prior to [Father's] passing, cordial but not particularly close which appears, in part, to be the result of the brevity of Mother and Father's relationship.
* * * *
10. The day after the child's birth, April 5, 2012, Grandfather and members of Father's family met with Mother at the hospital to celebrate the delivery of the child. This occurred as a result of Mother's own invitation.
11. Subsequently, on June 2, 2012, or 5, 2012, Mother brought [L.L.] over to Grandfather's home to visit.
12. Grandfather has requested of Mother on multiple occasions to have further contact and visitation with [L.L.], however, Grandfather's requests were either ignored or denied by Mother without explanation. Grandfather's requests were all made by text messaging. Mother states that she received no invitations by personal phone calls. This demonstrates to the court an awkwardness in the relationship between Mother and Grandfather.
13. Both Mother and Grandfather reside in ...