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E.W. v. J.W.

Court of Appeals of Indiana

November 17, 2014

E. W., Appellant/Plaintiff-Petitioner, O. W., Co-Appellant/Plaintiff-Petitioner,
J. W., Appellee-Respondent,

Page 890

[Copyrighted Material Omitted]

Page 891

APPEAL FROM THE VANDERBURGH SUPERIOR COURT. The Honorable Brett Niemeier, Judge. Cause No. 82D01-0803-JP-91, Cause No. 82D07-1211-AD-166, Cause No. 82D03-1210-PO-5227.

ATTORNEY FOR APPELLANT: JULIANNE L. FOX, Fox & Lutz, LLC, Evansville, Indiana.


ROBB, Judge. BAKER, J., and KIRSCH, J., concur.


Page 892

ROBB, Judge

Case Summary and Issues

The appellants in this matter, E.W. (" Father" ) and O.W. (" Grandmother" ) (collectively, " Appellants" ), appeal from the trial court's orders in favor of J.W. (" Mother" ) in three consolidated causes, two of which concern Father and Mother's child, R.W. The trial court issued separate orders denying Grandmother's petition to adopt R.W., denying Father's petition to terminate Mother's parenting time, and denying Father's petition for a permanent protection order against Mother. Appellants raise three issues for our review: (1) whether the trial court's denial of Grandmother's petition for adoption is clearly erroneous; (2) whether the trial court abused its discretion by denying Father's request to terminate Mother's parenting time; and (3) whether the trial court erred by denying Father's petition for a protection order against Mother. We conclude the trial court's decisions regarding the petition for adoption and request to terminate parenting time were not erroneous, and we affirm those decisions in all respects. However, we conclude the trial court's order relating to Father's petition for a protection order did not comply with Indiana Trial Rule 52(A), and we remand for further proceedings on that issue. Accordingly, we affirm in part and remand.

Facts and Procedural History

Mother and Father share one child together: R.W. On May 12, 2010, due to Mother's issues with drug abuse and her relationship with an abusive spouse, Father was granted primary physical custody of R.W. Mother's visitation was restricted to a single three-hour visit per week at the Parenting Time Center at Mother's expense. The trial court ordered that Mother's child support obligation was limited to one-half of any medical, pharmaceutical, and dental expenses.

On November 4, 2011, Mother filed a motion to modify custody and a request for additional parenting time. A hearing was held on that motion at which Mother testified that she was no longer abusing illegal drugs, and the trial court ordered Mother to submit to a drug test. Mother did not appear for the drug test, and the trial court presumed Mother's nonattendance meant that she would have tested positive. On April 24, 2012, the trial court issued an order denying Mother's request for additional parenting time. Rather than terminate Mother's parenting time, the trial court ordered that Mother would continue to have three-hour visitations on a weekly basis to be supervised by the maternal grandmother. Additionally, the trial court ordered that " [n]either Mother nor [maternal] grandmother may bring [R.W.] gifts unless it is the child's birthday, Christmas, or other holiday." Appellant's Appendix at 83-84. Finally, the trial court's order noted that " [i]f Father has a reasonable suspicion that Mother is under the influence of drugs, Father may request Mother submit to a hair follicle test and/or urinalysis test at her expense up to three times per year." Id. at 84.

Mother continued with her visitation, as ordered, until September 2012, when Father requested that Mother submit to a hair follicle test. Mother did not comply with Father's request, and Father unilaterally discontinued Mother's visitation and refused to allow any communication between Mother and R.W. Thereafter, a number of motions and petitions from Mother, Father, and Grandmother were filed in relatively short succession.

Page 893

On October 11, 2012, Father filed a motion to terminate Mother's parenting time. On October 22, 2012, Father filed for and received an ex parte protection order against Mother. On November 5, 2012, Grandmother filed her petition to adopt R.W., to which Father gave consent conditioned on the retention of his parental rights. Also on November 5, 2012, Mother filed a request to hold Father in contempt for violation of the trial court's order regarding Mother's visitation. All of the above were consolidated into the present cause. A hearing on these matters was held over the course of three days in September 2013.

After Father obtained primary custody of R.W. in May 2010, Mother continued to struggle with drug abuse and with involvement in abusive relationships. Mother had some issues with methamphetamine use and was a habitual marijuana smoker. Most recently, Mother was arrested in March 2013 for driving while intoxicated. However, in the six months preceding the September 2013 hearings, Mother was no longer in an abusive relationship and was drug free.

At the time of the September 2013 hearing, Father had not allowed Mother to see or communicate with R.W. for an entire year. Prior to Father's decision to disallow visitation, Mother had visited six straight weeks prior to September 12, 2012, and Mother made use of a majority of her weekly visitation opportunities going back one year from that date. Mother's visitation with R.W. was largely without incident, and it is clear that R.W. loves Mother. Mother had a number of gifts saved that she had been unable to give to R.W. in the last year.

Sarah Dotson, a caseworker with the Indiana Department of Child Services (" DCS" ), testified at the hearing. She explained that she was acquainted with Mother because DCS filed a case alleging that R.W.'s half-sibling, who was in Mother's care, was a child in need of services (" CHINS" ). The CHINS proceeding was instituted in March 2013, and Dotson stated that Mother had cooperated with DCS and provided clean drug screens since that time. The child at issue in the CHINS proceeding had been returned to Mother, and the CHINS matter was set to close in November 2013.

On October 15, 2013, the trial court issued three separate orders. The first order denied Grandmother's petition for adoption, concluding Mother's consent was required for adoption. The second order denied Father's motion to terminate Mother's parenting time and denied Mother's request to hold Father in contempt. The third order denied Father's request for a permanent protection order. Father and Grandmother filed motions to correct error as to the issues of adoption, parenting time, and the protection order. The trial ...

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