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In re Guardianship of A.Y.H.

Court of Appeals of Indiana

December 12, 2019

In the Matter of the Guardianship of A.Y.H. (Minor Child)
v.
Rosegina Wheeler and Randall Wheeler (Guardians), Appellees-Respondents Yahya Hemaid (Father), Appellant-Petitioner,

          Appeal from the Lake Superior Court The Honorable Alexis Vazquez Dedelow, Special Judge Trial Court Cause No. 45D06-1110-GU-152

          ATTORNEY FOR APPELLANT David Paul Allen Hammond, Indiana

          ATTORNEY FOR APPELLEES R. Cordell Funk Funk & Wendlinger, LLC Schererville, Indiana

          Crone, Judge.

         Case Summary

         [¶1] Yahya Hemaid ("Father") appeals the trial court's denial of his petition to terminate a permanent guardianship order designating Rosegina Wheeler and Randall Wheeler (collectively "Guardians") as guardians of his eight-year-old child A.Y.H. ("Child"). We affirm.

         Facts and Procedural History

         [¶2] Child was born to Father and Robynleigh Hemaid ("Mother") in October 2010. Shortly after his birth, he began living with Guardians, who are his maternal great aunt and uncle. Father was incarcerated from February 2011 through February 2012. In October 2011, Guardians filed a petition for permanent guardianship, and Mother signed a consent to the appointment. The trial court issued a permanent guardianship order in November 2011. In February 2012, Mother and Father dissolved their marriage. In the ensuing three years, neither Mother nor Father visited or provided financial support for Child.

         [¶3] In 2015, Father filed a petition to terminate the guardianship. The matter remained unresolved until November 2017, when Father and Guardians executed an agreed order pursuant to which Guardians agreed to forgo pursuing adoption of Child, and the parties agreed that the guardianship would continue until Child's eighteenth birthday. The agreed order also provided that Father would have phased-in parenting time that would eventually lead to parenting time pursuant to the Indiana Parenting Time Guidelines, with overnight and alternating-weekend visits.

         [¶4] On November 5, 2018, Father filed a second petition to terminate the guardianship. The trial court conducted hearings over two days, after which the parties submitted proposed findings of fact and conclusions thereon pursuant to Indiana Trial Rule 52(A). On July 3, 2019, the trial court issued an order with findings of fact and conclusions thereon denying Father's petition to terminate the guardianship. Father now appeals. Additional facts will be provided as necessary.

         Discussion and Decision

         [¶5] Father asserts that the trial court erred in denying his petition to terminate the guardianship. Guardianship proceedings are guided by Indiana Code Section 29-3-12-1(c)(4), which reads, "The court may terminate any guardianship if … the guardianship is no longer necessary[.]"

         [¶6] We review the trial court's order in guardianship proceedings for an abuse of discretion, with a preference for granting latitude and deference to our trial judges in family law matters. In re Guardianship of M.N.S., 23 N.E.3d 759, 765-66 (Ind.Ct.App. 2014). Where the trial court issues findings of fact and conclusions thereon, we typically employ a two-tiered standard of review, determining first whether the evidence supports the findings and then whether the findings support the judgment. In re Guardianship of L.R.T., 979 N.E.2d 688, 689 (Ind.Ct.App. 2012), trans. denied (2013). While we review the trial court's conclusions de novo, we will not set aside the findings unless they are clearly erroneous, meaning that our review of the record leaves us firmly convinced that a mistake has been made. In re Guardianship of B.W., 45 N.E.3d 860, 866 (Ind.Ct.App. 2015). In conducting our review, we neither reweigh evidence nor reassess witness credibility but rather consider the evidence and reasonable inferences most favorable to the judgment. Matter of Guardianship of I.R., 77 N.E.3d 810, 813 (Ind.Ct.App. 2017).

         [¶7] As a preliminary matter, we note that Father has not provided us a copy of the transcript of the trial court proceedings. Indiana Appellate Rule 9(F)(5) requires the appellant's Notice of Appeal to include "[a] designation of all portions of the Transcript necessary to present fairly and decide the issues on appeal." Rule 9(F)(5) also specifies that "[i]f the appellant intends to urge on appeal that a finding of fact or conclusion thereon is unsupported by the evidence or is contrary to the evidence, the Notice of Appeal shall request a Transcript of all the evidence." Father claims that he intentionally omitted the transcript because he does not challenge the sufficiency of the evidence supporting any of the findings. However, he lists certain findings in his brief and asserts that they are incomplete, insufficient, or incorrect. We have no basis for evaluating such claims, given the deficient record before us. Thus, Father has waived any allegations of error pertaining to the accuracy and/or adequacy of the findings. See Lifeline Youth & Family Servs., Inc. v. Installed Bldg. Prods., Inc., 996 N.E.2d 808, 814 (Ind.Ct.App. 2013) ("Although not fatal to the appeal, failure to include a transcript works a waiver of any ...


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