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T.H. v. R.J.

Court of Appeals of Indiana

December 18, 2014

T.H. and C.H., Appellants-Petitioners,
R.J. and K.J., Appellees-Respondents

Page 777

APPEAL FROM THE JOHNSON CIRCUIT COURT. The Honorable K. Mark Loyd, Judge. The Honorable Marla Clark, Magistrate. Cause No. 41C01-1109-MI-77.


ATTORNEYS FOR APPELLEE: DANIEL J. LAYDEN, MICHELLE L. FINDLEY, Williams Barrett & Wilkowski, LLP Greenwood, Indiana.

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

Page 778


PYLE, Judge


This is the second time that C.H. (" Grandmother" ) and T.H. (" Step-grandfather" ) (collectively, the " Grandparents" ) appear before us. Previously, we affirmed the trial court's denial of their Trial Rule 60(B) and Trial Rule 59 motions to set aside the adoption of their granddaughter, B.J., by her stepfather, K.J. (" Stepfather" ). In re Adoption of B.C.H., 7 N.E.3d 1000 (Ind.Ct.App. 2014), trans. granted.

Now, Grandparents appeal the juvenile court's order granting sole physical and legal custody of B.J. to R.J. (" Mother" ) and Stepfather (collectively, the " Parents" ). The juvenile court had previously adjudicated Grandparents as de facto custodians of B.J., thereby giving them the ability to seek custody. On appeal, Grandparents argue that the evidence did not support the juvenile court's findings of fact and its ultimate conclusions. The Grandparents also claim they were entitled to continued court-ordered visitation with B.J.

Concluding that the evidence supported the juvenile court's factual findings, that the Grandparents failed to rebut the presumption of awarding custody of B.J. to the Parents, and that there was no error in discontinuing court-ordered visitation with Grandparents, we affirm the juvenile court's order.

We affirm.


1. Whether the juvenile court erred by awarding custody of B.J. to the Parents.

Page 779

2. Whether the juvenile court erred by discontinuing Grandparents' court-ordered visitation with B.J.


Mother became pregnant with B.J. at age seventeen while still in high school, working, and residing with her mother and stepfather, the Grandparents. Prior to B.J.'s birth, Grandparents insisted that Mother move into her own apartment. B.J. was born on November 29, 2007. Mother spent two days in the hospital and then went to her apartment, where Grandmother stayed with Mother and B.J. for three days. After five days, Mother and B.J. stayed with Grandparents at their home.

Mother and B.J. eventually returned to her apartment. When Mother returned to work as a server at a restaurant, she frequently dropped B.J. off at Grandparents' home early in the day and returned later in the evenings to pick her up. Mother's work schedule was so unpredictable that B.J. began spending the night at Grandparents' house so that B.J. would have some consistency in her schedule. Mother eventually let B.J. remain with Grandparents to accommodate her work and school schedule and to provide consistency for B.J.

In February 2008, the State, through paternity proceedings, adjudicated T.M. as B.J.'s biological father. The court granted T.M. visitation rights, ordered him to pay child support, and granted sole primary and legal custody of B.J. to Mother. From the time of her birth, B.J. has had no meaningful relationship with T.M. Later in 2008, Mother met Stepfather, an Iraq war veteran, and began dating him.

By February 2010, Parents moved into an apartment together and began keeping B.J. at least one night per week. Mother became pregnant about a month later, and Parents eventually married on July 4, 2010. Around this time, Stepfather mentioned to Grandparents that he had an opportunity to train as a drill sergeant in Georgia and that Parents wanted to take B.J. with them. According to Mother, Grandmother told Parents, " you [. . .] and this new baby can go down to Georgia, but you are not taking my baby." (Tr. 694). At the final hearing, Grandmother stated she " didn't put it like that," but did say that she thought it " wouldn't be right" because " [B.J.] had bonded to [Grandparents]" and that their home was the " only home she had ever known." (Tr. 447). Parents did not move, and B.J. continued to split time between Parents and Grandparents. Later in 2010, Parents initiated proceedings for Stepfather to adopt B.J. In January 2011, Mother gave birth to a girl, P.J. For about four weeks after P.J.'s birth, B.J. did not visit with Parents. After Mother recovered from giving birth, B.J.'s visits with Parents resumed.

Tension between Parents and Grandparents eventually boiled over in September of 2011. At that time, Grandmother witnessed Stepfather and B.J. having a pillow fight. Grandmother thought that Stepfather was being too rough with B.J. Mother was present at the time and tried to assure Grandmother that everything was okay. Mother pointed out that no one was hurt and that B.J. was laughing. Grandmother nonetheless insisted that Stepfather was playing too rough with the child and claimed that she was injured. Grandmother took B.J. to a chiropractor for an examination after the pillow fight. After an examination, the chiropractor diagnosed B.J. with whiplash.[1]

Page 780

The next day, Stepfather dropped the children off at Grandparents' home so that Parents could go to a doctor's appointment. When the Parents returned, Grandmother told Parents that Stepfather needed to watch how he played with B.J. because of the chiropractor's diagnosis. Parents were skeptical, and Stepfather said that he would continue to play with B.J. in the same manner. He and Grandmother began to argue, and Stepfather told Mother to get the kids so that they could leave. However, Grandmother locked herself in a room with B.J. and refused to come out. The Parents left with P.J., but B.J. remained with Grandparents.

The day after the argument, on or about September 4, 2011, Parents were supposed to pick up B.J. from Grandparents' house. When Mother arrived at the house, Grandparents were not there. Mother was concerned because Grandparents had changed the garage door access code and the blinds to their house were down, which Mother found to be unusual. When Mother called Grandparents, she did not receive a response. Mother called Stepfather, and he suggested that she give Grandparents more time to respond. After waiting two hours, Parents called the police. The police located Grandparents at their property in Owen County and asked that they return to Johnson County with B.J. Grandparents eventually returned B.J. to Parents, and she began living exclusively with them. After taking custody of B.J., Parents took her to an emergency room for examination of any injuries from the pillow fight. Doctors at the hospital found no injuries during their examination.

On September 14, 2011, Grandparents filed a verified motion to establish custody in the person of de facto custodians regarding B.J. In their motion, Grandparents alleged that Mother had effectively abandoned B.J., that removing B.J. from their care would " cause severe mental harm and physical risk" to B.J., and that it was in B.J.'s best interest to be placed with Grandparents on a temporary and eventually permanent basis. (App. 58). Grandparents also filed a motion for a bonding assessment. The trial court granted the motion for a bonding assessment and set the matter for a hearing to determine de facto custodian status and temporary custody.[2]

Ehrman & Associates completed the bonding assessment and filed it with the court on October 28, 2011. Dr. John Ehrman (" Dr. Ehrman" ), who completed the assessment, concluded that B.J. was very well bonded to Grandparents. Dr. Ehrman also included information in his report essentially questioning the physical and emotional well-being of B.J. However, during his testimony at the final hearing, Dr. Ehrman acknowledged that the only source of his information was Grandmother, and that he had never met the Parents prior to the final hearing.

On November 15, 2011, the juvenile court held the evidentiary hearing to determine de facto custodian status. On the same day, Grandparents also filed a petition for a custody evaluation. After hearing evidence and accepting proposed findings of fact and conclusions thereon, the juvenile court entered an order adjudicating Grandparents as de facto custodians. However, the court left B.J. in the custody of Parents and ordered that Grandparents would ...

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