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In re Grandparent Visitation of C.S.N.

Court of Appeals of Indiana

July 15, 2014

SCOTT A. UBELHOR and ANGELA S. UBELHOR, Appellee-Petitioners

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APPEAL FROM THE DUBOIS CIRCUIT COURT. The Honorable William E. Weikert, Judge. Cause No. 19C01-1302-MI-117.



RILEY, Judge. MAY, J. concurs. VAIDIK, C. J. dissents with separate opinion.


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RILEY, Judge


Appellant-Respondent, Brooke Neuhoff (Mother), appeals the trial court's Order awarding visitation with her minor child to the paternal grandparents, Appellees-Petitioners, Scott A. Ubelhor (Grandfather) and Angela S. Ubelhor (Grandmother) (collectively, Grandparents).

We reverse.


Mother raises one issue on appeal, which we restate as: Whether the trial court erred in granting Grandparents' Petition for Grandparent Visitation (Petition).


During her junior year of high school, Mother learned that she and her nineteen-year-old boyfriend, Justin Ubelhor (Father), were expecting a baby. Just eleven weeks before Mother gave birth, Father committed suicide. On June 8, 2010, by agreement between Mother and Grandparents, the trial court entered an order establishing Father's paternity, and on June 17, 2010, Mother gave birth to a son, C.N. (the Child). Because Mother was only seventeen years old when the Child was born, her parents (Maternal Grandparents) were appointed as the Child's guardians.[1] Mother and the Child live in Maternal Grandparents' home in Huntingburg, Indiana.

In August of 2010, Mother returned to school for her senior year, and the Child was enrolled in daycare. Mother continued her participation in extracurricular activities and graduated from high school with a grade point average of 3.9 on a 4.0 scale. Thereafter, she enrolled in the University of Southern Indiana to study accounting. In addition to being a full-time college student, Mother works for the accounting department of a large remanufacturing company.

Following Father's death, Mother maintained a close relationship with Grandparents. Grandmother hosted a baby shower for Mother, and she was present during the Child's delivery. For nearly the first three years of the Child's life, Mother made sure Grandparents were involved in the Child's baptism, birthday parties, holidays, and other celebrations. Likewise, Grandparents invited Mother to attend their family events. In addition to the special occasions, Mother took the Child for visits at Grandparents' house almost every Sunday. Although Mother stayed with the Child during the first few months of his life, as he became older, she would sometimes leave for several hours so that she could do homework, and Grandparents could enjoy their own time with the Child. The Child never spent the night with Grandparents.

Sometime in January of 2013, Grandmother heard a rumor that Mother intended to terminate Grandparents' contact with the Child because Mother believed that Grandparents " were low-life people[]" and " bad influences" who did not " deserve to be around [the Child]." (Transcript p. 16). When confronted by Grandmother, Mother denied ever making such statements and informed Grandmother that she " would never do that to [Grandparents]." (Tr. p. 16). Unwilling to risk the chance that Mother might keep the Child away from them, and because they wanted to have overnight visits with the Child, Grandparents filed their Petition on February 22, 2013. For the next several weeks, despite Grandparents' legal action, Mother continued to take the Child for his Sunday visits with Grandparents.

Around this same time, Mother began to notice changes in the Child's behavior following his visits with Grandparents, specifically that the Child was crying more, acting

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out, and being aggressive. The Child's last visit with Grandparents occurred on Sunday, March 17, 2013. When Mother picked the Child up from Grandparents' house that afternoon, she became concerned by the Child's atypical behavior. Mother explained that the Child

was crying and hitting and just terrified. . . . He cried for an hour and a half straight. He wanted no one to touch him [and] [w]anted nothing to do with anyone else. And then I . . . I started praying, and finally, he came up, and he said, mama, hold me. And he was shaking and shivering and just seemed really scared.

(Tr. pp. 67-68 (last alteration in original)). The next day, the Child had multiple potty-training accidents at daycare, which was highly unusual for him, and that night, Mother noticed that the Child had several bruises on his back. At this point, Mother decided to discontinue the Child's visitation with Grandparents. As a result, on April 12, 2013, Grandparents filed an Emergency Petition for Grandparent Visitation, alleging that Mother had retaliated against their Petition by denying them " all contact with [the Child] despite a previous parenting time routine and relationship prior to the filing of this case." (Appellant's App. p. 14). The trial court denied Grandparents' Emergency Petition.

On August 15, 2013, the trial court conducted an evidentiary hearing on Grandparents' Petition. On October 8, 2013, the trial court issued its Order granting visitation rights to Grandparents. In its findings of fact and conclusions thereon, the trial court concluded that " [i]t is in [the Child's] best interest that he visit with [Grandparents]." (Appellant's App. p. 9). The trial court specified that, following a six-week transition period consisting of both supervised and unsupervised visits, Grandparents are entitled to unsupervised visitation time with the Child on alternating Sundays from 10:00AM to 6:00PM. On November 9, 2013, Mother filed a motion to stay the visitation Order pending the outcome on appeal, which the trial court denied on December 10, 2013.

Mother appealed, and on April 4, 2014, our court issued a memorandum decision, wherein we found that the trial court had failed to issue proper findings of fact and conclusions of law. See In re Grandparent Visitation of C.S.N., No. 19A05-1311-MI-542, 10 N.E.3d 101, 2014 WL 1356851 (Ind.Ct.App. Apr. 4, 2014). We retained jurisdiction, stayed the visitation, and instructed the trial court to remit new findings and conclusions within thirty days. On April 25, 2014, the trial court issued its Revised Order.


I. Standard of Review

In either granting or denying a petition for grandparent visitation, the trial court is obligated to issue specific findings and conclusions in its decree. Ind. Code § 31-17-5-6. Accordingly, we apply the two-tiered standard of review set forth in Indiana Trial Rule 52(A). First, we must consider whether the evidence supports the findings; second, we determine whether those findings support the judgment. In re Visitation of M.L.B., 983 N.E.2d 583, 585 (Ind. 2013). We do not reweigh evidence or assess the credibility of witnesses, and we consider the evidence and all reasonable inferences in favor of the trial court's judgment. Megyese v. Woods, 808 N.E.2d 1208, 1213 (Ind.Ct.App. 2004). We will " not set aside the findings or judgment unless clearly erroneous." Ind. Trial Rule 52(A). Regarding the factual findings, we " defer[] to the trial court's superior opportunity 'to judge the credibility of the witnesses.'" In re Visitation of M.L.B., 983 N.E.2d at 585 (quoting K.I. ex rel. J.I. v. J.H., 903 N.E.2d 453, 457 (Ind. 2009)). We

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will find the judgment to be clearly erroneous if " the findings fail to support the judgment" or if " the trial court applies the wrong legal standard to properly found facts." Id.

II. Grandparent Visitation Act

The " interest of parents in the care, custody, and control of their children [] is perhaps the oldest of the fundamental liberty interests recognized by [the Supreme] Court." Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). As such, the Fourteenth Amendment " provides heightened protection against government interference" in the right of parents " to direct the upbringing of their children." Id. In contrast, because " grandparents do not have the legal rights or obligations of parents," they " do not possess a constitutional liberty interest in visitation with their grandchildren." McCune v. Frey, 783 N.E.2d 752, 755 (Ind.Ct.App. 2003). Rather, decisions about the level of grandparent involvement in the lives of their grandchildren have historically been a matter of parental discretion. In re Visitation of M.L.B., 983 N.E.2d at 585.

Nevertheless, states have recognized " that children should have the opportunity to benefit from relationships with statutorily specified persons--for example, their grandparents." Troxel, 530 U.S. at 64. As a result, the Indiana General Assembly enacted the Grandparent Visitation Act, which provides that there are limited circumstances under which " [a] child's grandparent may seek visitation rights." I.C. § 31-17-5-1. In the present case, Grandparents were entitled to file their Petition because Father is deceased, as well as because the Child was born out of wedlock and Father's paternity was established. See I.C. § 31-17-5-1.

A trial court may grant grandparent visitation rights upon a determination that it would be " in the best interests of the child." I.C. § 31-17-5-2(a). In its evaluation of a child's best interests, a trial court " may consider whether a grandparent has had or has attempted to have meaningful contact with the child." I.C. § 31-17-5-2. However, this consideration " is not the touchstone for determining the child's best interests." In re Visitation of C.L.H., 908 N.E.2d 320, 328 (Ind.Ct.App. 2009). Because " a child's best interests do not necessarily override" the " fundamental constitutional right" of natural parents " to direct their children's upbringing without undue governmental interference," our courts have endeavored to " strik[e] a balance between parental rights and children's interests." In re Visitation of M.L.B., 983 N.E.2d at 586. To this end, our court has identified four factors that a trial court must consider in its decree granting or denying an award of grandparent visitation:

(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, 783 N.E.2d at 757. It was the trial court's failure to address all four of these " McCune Factors" --as they have come to be recognized--in its original Order that necessitated our remand and clarification. See In re Visitation of M.L.B., 983 N.E.2d at 586. Having received the trial court's revised findings and conclusions, we now address Mother's claim that, in light of her constitutional rights as a fit

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parent, the trial court clearly erred in granting ...

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