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In re Visitation of H.B.

Court of Appeals of Indiana

November 24, 2014

IN RE THE VISITATION OF H.B., ADAM BURRIS, Appellant-Respondent,
v.
TIMOTHY W. SCHMIDT and ANITA J. SCHMIDT, Appellees-Petitioners

APPEAL FROM THE WARRICK SUPERIOR COURT. The Honorable Robert R. Aylsworth, Judge. Cause No. 87D02-1307-MI-854.

ATTORNEY FOR APPELLANT: MATTHEW J. MCGOVERN, Anderson, Indiana.

ATTORNEYS FOR APPELLEES: TRISHA S. DUDLO, KELLY A. LONNBERG, Bamberger, Foreman, Oswald and Hahn, LLP, Evansville, Indiana.

NAJAM, Judge. BAILEY, J., and PYLE, J., concur.

OPINION

Page 868

NAJAM, Judge

STATEMENT OF THE CASE

Adam Burris (" Father" ) appeals the trial court's grandparent visitation order in favor of Timothy W. Schmidt and Anita J. Schmidt (" the Grandparents" ) and with respect to Burris' minor daughter, H.B. Father raises two issues for our review, which we consolidate and restate as whether the trial court's order is clearly erroneous. We reverse.

Page 869

FACTS AND PROCEDURAL HISTORY

We stated the relevant facts in a prior appeal:

H.B. was born in June 2008 to Father and K.M. (" Mother" ). Father and Mother were not married. Mother and H.B. have occasionally lived with [Mother's] parents, Grandparents. Although Mother initially had custody of H.B., an Illinois court modified that custody in March 2012 due to Mother's alcohol abuse and instability. Father was awarded sole custody of H.B., and Mother was awarded visitation. In August 2012, Mother's visitation was modified to visitation on the first, second, and third Sundays of each month from 3:00 p.m. to 5:00 p.m. at a restaurant with visitation to be supervised by Father or his parents. Grandparents visited with H.B. once a month during Mother's supervised visitation. Grandparents also attended H.B.'s sporting events, and Father allowed H.B. to attend a picnic and a birthday party with Grandparents.

A.B. v. T.S. (In re H.B.), No. 87A01-1309-MI-415, 11 N.E.3d 573, Id. at *1 (Ind.Ct.App. May 9, 2014).

In July of 2013, the Grandparents filed a petition for grandparent visitation pursuant to Indiana Code Chapter 31-17-5. After a hearing, the trial court granted the Grandparents' petition. Father appealed, and we remanded to the trial court with instructions that the court enter an order that expressly met certain requirements enumerated by the Indiana Supreme Court in K.J.R. v. M.A.B. (In re M.L.B.), 983 N.E.2d 583 (Ind. 2013).

Following our instructions, on remand the trial court entered the following findings of fact:

2. [H.B.] and [M]other lived with the [Grandparents] for approximately two and one[-]half years after [H.B.] was born.
3. Pursuant to the Illinois order determining the rights of the parties, the [Grandparents'] daughter, [Mother], receives only six hours of contact with [H.B.] at a McDonald['s] restaurant on the West side of Evansville, two hours at a time and on three Sundays per month. The [G]randparents previously attended one two[-]hour period per month.
4. [F]ather allowed no time to the [G]randparents for them to visit with [H.B.] outside of his supervision and control and, without the coercive intervention of the court, there will be no other time allowed by [F]ather to the [G]randparents.
5. . . . The [Grandparents'] son Chad . . . resides in Evansville. The[ir] family often congregates at the family farm [there] where [H.B.] stays with her [G]randparents during the one weekend per month they are permitted to have her.
6. The [G]randparents' right to exercise this limited parenting time with [H.B.] is conditional upon them not permitting the [M]other . . . to have any personal contact with [H.B.] while she is with them.
7. The [G]randparents' contact with [H.B.] by phone has been limited, and permitting them one phone call per week is a minimal intrusion upon [F]ather, reasonable[,] and in [H.B.'s] best interest.
8. The [G]randparents assuming the burden for transportation to and from their home in Illinois results in very little inconvenience and virtually no expense to [F]ather for the [Grandparents] to exercise ...

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