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C.H. v. A.R.

Court of Appeals of Indiana

April 12, 2017

C.H., Appellant-Petitioner,
v.
A.R., Appellee-Respondent.

         Appeal from the Hamilton Circuit Court The Honorable Paul A. Felix, Judge The Honorable Todd L. Ruetz, Magistrate Trial Court Cause No. 29C01-1504-PO-2994

          Attorney for Appellant Jonathan R. Deenik

          Pyle, Judge.

         [¶1] C.H. ("Grandmother") appeals the trial court's order that dismissed her protective order petition and its ex parte protective order that she sought against A.R. ("Mother") for the protection of Mother's son, H.L. ("Son"). Grandmother also appeals the trial court's order granting Mother's petition for attorney fees. Grandmother argues that the trial court erred by dismissing her protective order petition based on a finding that she lacked standing to file it and by ordering her to pay Mother's attorney fees based on a finding of bad faith. Finding no error, we affirm the trial court's order dismissing Grandmother's petition and its order granting Mother's request for attorney fees.

         [¶2] We affirm.

         Issues

1.Whether the trial court erred by dismissing Grandmother's petition for a protective order.
2.Whether the trial court erred by granting Mother's request for attorney fees.

         Facts

         [¶3] Before delving into the facts, we pause to note that the record on appeal-most notably Grandmother's Appellant's Appendix-is scant in content, resulting in limited available facts. Contrary to Indiana Appellate Rule 50, Grandmother has failed to include in her Appellant's Appendix the vast majority of "pleadings and other documents from the Clerk's Record" that were part of this protective order proceeding. For example, she has failed to include a copy of her petition for a protective order that explained the basis or allegations supporting the petition. She also has failed to include the trial court's ex parte protection order. There were other pleadings filed and orders entered during the course of this proceeding-including a transfer of the case to Grant County and then a re-transfer back to Hamilton County-and Grandmother has not included these pleadings in her Appendix. Additionally, as part of the hearings in this case, the trial court took judicial notice of the records from other proceedings involving Mother and Grandmother; however, these records have not been included in the record on appeal. Grandmother's failure to include these documents has required us to rely mainly upon the chronological case summary and the trial court's order on attorney fees to piece together the relevant facts of this case.[1]

         [¶4] We now turn to the facts most favorable to the judgment. Mother is the mother of Son, who was born in September 1999. Mother was granted physical and legal custody of Son by a Grant Superior Court in a paternity proceeding filed in January 2000 under cause number 27D02-0001-JP-21 ("Grant County paternity case"). The father of Son is deceased.[2] Grandmother, who is the paternal grandmother of Son, obtained grandparent visitation rights after she intervened in the Grant County paternity case. The Grant Superior Court granted Grandmother and her husband visitation with Son for eight hours every other Saturday.

         [¶5] In April 2015, Mother and Son, who was sixteen years old at that time, were living in Hamilton County. On April 12, 2015, "an altercation occurred" between Mother and Grandmother, and Son "attempted to intervene in the altercation." (App. 9).

         [¶6] Subsequently, the State charged Mother with multiple charges, including battery against Grandmother and against Son, under cause number 29D03-1504-F6-3420 ("Hamilton County criminal case"). The trial court in the Hamilton County criminal case issued a no-contact order for Grandmother's protection, but it did not issue an order pertaining to Son. Additionally, the Department of Child Services ("DCS") investigated the incident. DCS "did not seek to detain or remove [Son] from Mother's care" nor did it file a child in need of services ("CHINS") petition. (App. 10). Nevertheless, Grandmother kept Son in her care and did not return him to Mother.

         [¶7] On April 17, 2015, Grandmother filed, in Hamilton Circuit Court, a petition for a protective order against Mother on behalf of Son ("Hamilton County protective order case").[3] It is this petition that is at issue in this appeal. In her petition, Grandmother "reported the child's residence as the grandmother's residence" and did not inform the court that Mother had obtained custody of Son pursuant to a court order in the Grant County paternity case. (App. 10). That same day, the trial court issued an ex parte order for protection. The order "required Mother to stay away from . . . [G]randmother's residence where [Son] was located and stay away from [his] school." (App. 11).

         [¶8] A few days later, on April 20, 2015, Grandmother filed an emergency petition for the appointment of guardianship over Son. She filed this motion in Hamilton Superior Court under cause number 29D03-1504-GU-45 ("Hamilton County guardianship case"). In her petition, Grandmother did not inform the court that "Mother had been granted sole legal and physical custody of [Son]" in the Grant County paternity case. (App. 11).

         [¶9] Immediately thereafter, Mother, who was then represented by counsel, filed petitions-in both Grant County and Hamilton County-in an effort to get Son back in her care. Specifically, Mother filed, in the Grant County paternity case, a "Motion for Sheriff Assistance for Immediate Return of Child to Hamilton County, " a "Motion to Suspend Grandparent Visitation, " and a "Motion to Transfer to Hamilton County." (App. 11).[4] In this Hamilton County protective order case, Mother filed a motion to dismiss the ex parte protection order, or, in the alternative, a request for an immediate hearing. Additionally, Mother filed, in the Hamilton County guardianship case, a motion to dismiss Grandmother's guardianship petition "due to the fact that a matter between the parties and [Son] was already pending" in the Grant County paternity case. (App. 11). In this motion, Mother alleged that Grandmother had "[e]ffectively stripped Mother of custody by denying her, as a custodial parent, the ability to contact and parent her child." (App. 11-12).

         [¶10] On April 28, 2015, the trial court in the Hamilton County guardianship case, held a hearing and then entered an order dismissing Grandmother's guardianship petition. The trial court's dismissal was "due to the Grant Superior Court having custody jurisdiction over [Son] by its paternity case." (App. 12). After the dismissal, Grandmother "continued with the Ex Parte Order for Protection and did not return [Son] to Mother's care." (App. 12).

         [¶11] The following day, the Hamilton Circuit Court transferred jurisdiction of this Hamilton County protective order case to the Grant Superior Court for a hearing in conjunction with the Grant County paternity case. Grandmother then filed a petition to modify custody in that paternity case.

         [¶12] Thereafter, on May 6, 2015, following an agreement reached in a telephonic attorney conference, the Grant Superior Court transferred the paternity case to Hamilton County under cause number 29C01-1505-JP-659 ("Hamilton County paternity case") and transferred the protective order case back under its original Hamilton County cause number. Grandmother continued to maintain control over Son.

         [¶13] Meanwhile, on September 25, 2015, Mother was acquitted, following a jury trial, of the battery charge against Son and convicted of the battery charge against Grandmother. Grandmother "continued to deprive Mother of custody over [Son] by the Ex Parte Order for Protection." (App. 13).

         [¶14] Immediately thereafter, on September 28, 2015, Mother filed a pro se motion to dismiss the ex parte protective order and a request for a hearing in this Hamilton County protective order case. Grandmother filed a response, contending that Mother's motion should be denied without a hearing because Mother had not filed her request for a hearing within thirty days of the ex parte order.

         [¶15] On February 10, 2016, the trial court held a hearing on Mother's motion to dismiss. At the beginning of the hearing, the trial court advised that it had reviewed the motions filed in the Grant County paternity case that were transferred to and pending in the Hamilton County paternity case. The trial court also took judicial notice of the records from Mother's Hamilton County criminal proceeding and the Hamilton County guardianship case.[5]

         [¶16] The trial court asked the parties to provide legal arguments as to whether Grandmother had standing under the protective order statute to seek a protective order for Son and whether the trial court had jurisdiction to enter an ex parte protective order. In response, Mother argued that she had had "sole custody" of Son since 2000, that Grandmother had filed the petition for the protective order after DCS had investigated and "unsubstantiated" any claim against Mother, and that Grandmother had misstated Son's residence on the petition by stating that Son lived with Grandmother. (Tr. 8, 10).

         [¶17] Grandmother acknowledged that DCS had not filed a CHINS petition and had not sought any court intervention to place Son with Grandmother. Grandmother, however, argued that she had standing to file a protective order on behalf of Son "because she [wa]s his grandmother and she was there to witness the events that occurred." (Tr. 9).

         [¶18] The trial court expressed its concern that Grandmother did not have standing and had sought the protective order "to bootleg around the intervention of police, CPS, guardianship, [and the] custody order on an ex parte basis[.]" (Tr. 13). The trial court also noted that, under the protective order statute- Indiana Code § 34-26-5-2(b)-only "a parent, a guardian, or another representative" is authorized to file a petition for a protective order on behalf of a minor. (Tr. 16).

         [¶19] Grandmother then asserted that she had standing to file a petition for a protective order on behalf of Son because she could be considered "another representative" under the protective order statute. She did not, however, provide ...


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