In Re: The Guardianship of C.R. and A.R. E.R. v. M.S. and D.S. (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Dec 27 2016, 6:45 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEES E. Kent Moore Amy O. Carson Laszynski & Moore Massillamany & Jeter, LLP Lafayette, Indiana Fishers, Indiana

IN THE COURT OF APPEALS OF INDIANA

In Re: The Guardianship of C.R. December 27, 2016 and A.R. Court of Appeals Case No. 79A02-1603-GU-569 E.R., Appeal from the Tippecanoe Appellant-Respondent, Circuit Court v. The Honorable Thomas Busch, Judge M.S. and D.S., Trial Court Cause No. 79C01-1205-GU-45 Appellees-Petitioners.

Riley, Judge. Court of Appeals of Indiana | Memorandum Decision 79A02-1603-GU-569 | December 27, 2016 Page 1 of 31

STATEMENT OF THE CASE

[1] Appellant-Respondent, E.R. (Adoptive Father) 1 appeals the trial court’s Order

awarding visitation to the Appellees-Petitioners, M.S. (Grandfather) and D.S.

(Grandmother) (collectively, Paternal Grandparents) with his minor children

C.R. and A.R. (collectively, Children). [2] We reverse.

ISSUE

[3] Adoptive Father raises two issues on appeal, which we consolidate and restate

as the following single issue: Whether the trial court abused its discretion in

denying Adoptive Father’s request to modify the Paternal Grandparents’

visitation.

FACTS AND PROCEDURAL HISTORY

[4] We observe that this is Adoptive Father’s third appeal and we adopt the

recitation of the relevant facts as set forth in Adoptive Father’s first appeal as:

[T]he biological parents of C.[R]. and A.[R]. 2 divorced in May 2009. At the time, they had two children: four-year-old C.R. and two-year-old A.[R]. Approximately one month later, Biological Father went to Biological Mother’s house and attacked her with a hammer, killing her. C.[R]. witnessed at least a portion of the

1 Adoptive Father is also the Children’s biological maternal grandfather. 2 In the First Appeal, the Children were using Biological Father’s last name and were referred to as C.S. and A.S. However, later on, the Children began using their biological mother’s maiden name and were referred to as C.R. and A.R.

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attack. Shortly after Biological Mother’s death, the [C]hildren were the focus of a CHINS proceeding that culminated in the [C]hildren being placed in Adoptive Father’s custody. In conjunction with that proceeding, the [trial] court determined that the [biological] Paternal Grandparents would have visitation with the [C]hildren one day each week, plus every other weekend.

In January 2010, Adoptive Father sought guardianship of [the Children]. His request was granted. At some point, the Paternal Grandparents sought to have Adoptive Father removed as guardian, and further sought guardianship of the [C]hildren themselves. Meanwhile, Adoptive Father observed that the [C]hildren began to exhibit behavioral problems after returning from visits with the Paternal Grandparents. These problems included nightmares, night terrors, and C.[R]. waking up screaming in the middle of the night. Adoptive Father petitioned the [trial] court to reduce the amount of the Paternal Grandparents’ visitation to one visit per month. Following a hearing, the trial court denied the request and ordered that the existing visitation order remain in effect.

Gloria Hood, a long-time therapist who worked at the Indiana Center for Children and Families, had been appointed by the [trial] court to work therapeutically with the [C]hildren shortly after their mother’s murder. During her work with the [C]hildren, Hood consulted on a regular basis with Dr. Ann Annamis, a psychiatrist practicing with North Meridian Psychiatric Associates. Hood and Annamis discussed the case “frequently.” During the course of working with the [C]hildren, utilizing especially the therapeutic technique of play therapy, Hood eventually diagnosed C.[R]. as suffering from post- traumatic stress disorder (PTSD). In December 2010, Hood was asked to engage the services of another health-care professional, in this case psychiatrist Dr. David Crane, to “make sure that my assessment of [C.R.] in particular was on target and that I was

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not missing anything psychiatrically that I should be aware of.” Dr. Crane reviewed materials that Hood sent him in relation to her therapy with the [C]hildren and conducted several therapy sessions with C.[R]. He formed the opinion that she was doing “a very adequate job” and thus, although he continued to counsel separately with C.[R]., Dr. Crane adopted a relatively passive therapeutic role with the child.

As therapy progressed, Hood noted that C.[R]. “experience[ed] post-traumatic stress in some relationship to the visits in the [Paternal Grandparents’] home.” C.[R]. shared with Hood on a number of occasions that “[the Paternal Grandparents] want [the Children] to come live with them.” A.[R]. also shared with Hood that the Paternal Grandparents wanted her to come live with them, but that she preferred to live with Adoptive Father. Ultimately, both Adoptive Father and the Paternal Grandparents sought separately to adopt the [C]hildren. The [trial] court granted Adoptive Father’s petition and he adopted them. Sometime around March 2012, after Adoptive Father had adopted the [C]hildren, Hood became concerned that visitation with the Paternal Grandparents might involve “some other situation that is continuing to keep the issue of his father having killed his mother and his struggle about what that means in his life active for [C.R.].” As a result, Hood opined that the visitation arrangement with the Paternal Grandparents should be modified, at least for a time. Specifically, she recommended that for a period of at least six months, the [C]hildren should visit with the Paternal Grandparents an hour or two every week or every other week and that the visits should be supervised. Dr. Crane believed that Hood’s recommendation “should be given a lot of weight.”

In light of Hood’s recommendation, on June 22, 2012, Adoptive Father filed a Petition For Extended Hearing For Modifying And Supervising Grandparent Visitation.

Court of Appeals of Indiana | Memorandum Decision 79A02-1603-GU-569 | December 27, 2016 Page 4 of 31 In re Guardianship of C.S., No. 79A02-1210-GU-863 (Ind. Ct. App. Aug. 5, 2013) (internal citations omitted). Following a hearing on Adoptive Father’s petition to modify, on October 1, 2012, the trial court entered extensive findings of fact and conclusions of law denying the petition. The relevant findings of fact and conclusions stated:

8) Shortly after the CHINS case was closed . . ., [Adoptive Father] informed [the Paternal Grandparents] that they would not be allowed their upcoming week night visit, nor would they be allowed their visit the following weekend. While the testimony is divided as to whether it was [Adoptive Father’s] intent to eliminate all visits or significantly curtail the visits, it is clear that, at a minimum, it was [Adoptive Father’s] intent to greatly reduce the [Paternal Grandparents’] visitation time with the children.

9) [Adoptive Father] has now filed with this court a motion to reduce [the Paternal Grandparents’] visitation, this time [to] two (2) hours per month, supervised in an agency setting.

10) [Adoptive Father] has raised his belief that [the Paternal Grandparents] have facilitated contact between the children and [Biological Father], as his reason for making this request.

****

CONCLUSIONS OF LAW

7) In applying the law to the facts in this case, this court finds [Adoptive Father’s] decision to eliminate, or to allow only two (2) hours per month of supervised visitation, to be unreasonable. Therefore, [the Paternal Grandparents] have overcome the

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presumption that a fit parent’s decision regarding grandparent visitation is best.

9) It is also clear that the [Paternal Grandparents] have had a significant and ongoing relationship with [C.R.] and [A.R.] for the entire lives of the [C]hildren. It is in the [C]hildren’s best interests to continue their visitation with [the Paternal Grandparents].

In re Guardianship of C.S., No. 79A02-1210-GU-863, at *3. [5] Adoptive Father appealed (First Appeal). Adoptive Father argued that the trial

court’s judgment was erroneous as some of its findings were not supported by

the evidence. Upon review, we first concluded that the trial court had come to

the erroneous conclusion that Adoptive Father’s petition to modify visitation

was premised upon his own selfish desire to reduce contact between the

Children and the Paternal Grandparents. On this issue, we noted that Adoptive

Father’s petition to modify grandparent visitation, was based upon Hood’s

recommendation and was not driven by his personal interest. Secondly, we

found the trial court’s finding that Adoptive Father’s petition was instituted on

the belief that Paternal Grandparents had enabled some contact between the

Children and Biological Father was likewise erroneous. Specifically, we

concluded that although Adoptive Father believed that the Paternal

Grandparents were facilitating contact, that fact was not mentioned in his

petition. Lastly, we concluded that the trial court’s finding, stating that Father’s

petition requested a reduction of the grandparent visitation to two hours, was

equally erroneous. On this issue, we established that Father’s petition did not

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propose or request a specific visitation schedule. Instead, Adoptive Father had

requested the trial court to modify visitation in accordance with Hood’s

recommendation—i.e., that the new visitation arrangement should include only

supervised visitation and without any specification as to how long each visit

should last. Accordingly, we reversed the trial court’s order denying Adoptive

Father’s petition to modify grandparent visitation and remanded with the

following instructions:

It will be the trial court’s task upon remand to determine how many times per week or month the Paternal Grandparents should visit with the [Children] and how long each visit should last. As indicated previously, whatever the frequency and duration, the visitation must be supervised, and this schedule will last for six months, after which Hood will evaluate the [C]hildren’s therapeutic progress and fashion her recommendation as to the future course of visitation, accordingly.

In re Guardianship of C.S., No. 79A02-1210-GU-863, at *9. [6] Following remand, Adoptive Father requested a change of venue and the

matter was transferred from Tippecanoe County Circuit Court to Carroll

County Circuit Court. On January 22, 2014, the Paternal Grandparents filed a

petition to resume visitation and for a visitation evaluation. Adoptive Father

filed his response and the trial court held a hearing on March 10, 2014. On

March 20, 2014, the trial court issued an order establishing a visitation schedule

that for a period of six months, visitation was to be supervised by professionals

employed by Child and Family Partners, Inc. in Lafayette, Indiana. The trial

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court awarded a total of twelve hours of visits per month with no more than six

hours per visit. Also, the trial court granted the Paternal Grandparents’ request

for a visitation evaluation. [7] Thereafter, Adoptive Father filed his second notice of appeal (Second Appeal).

In In re Guardianship of C.R. & A.R., 22 N.E.3d 657, 661 (Ind. Ct. App. 2014),

we addressed Adoptive Father’s issue regarding the March 20, 2014 order

granting the Paternal Grandparents’ request for a visitation evaluation.

Adoptive Father contended that the Paternal Grandparents did not have any

basis to request a visitation evaluation, and the trial court did not have the

authority to order such an evaluation. We concluded that under the plain

language of Indiana Code section 31-17-2-12, “the trial court does not have the

authority to order [a child custody] evaluation in a visitation proceeding, absent

a request to do so from a parent or custodian.” Id. We therefore reversed the

sections of the trial court’s order concerning the visitation study. [8] Visitation commenced on April 1, 2014, and the visits were supervised by

Debra Apple (Apple) of Child and Family Partners. Apple’s role was to

maintain the Children’s safety during the visits. With each visit, Apple allowed

C.R. to pick the room where visits would take place and she informed the

Children that they could alert with sounds and signals whenever they felt

uncomfortable. Apple supervised approximately seventy-two hours of visits

and she provided detailed reports after each visit. Apple was always within

hearing and visual reach during the visits. During the visits, the Paternal

Grandparents brought food, games, and belated holiday gifts with them. Also,

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because the Children’s birthdays fell during the visitation period, the Paternal

Grandparents brought birthday gifts. According to Apple, with almost each

visit, the Children hugged and kissed the Paternal Grandparents without

prompting, they were comfortable, and made expressions of love and

endearment. During the course of the visits, Apple once heard A.R. state that

she wished she could go to the Paternal Grandparents’ house, and C.R. agreed.

In another visit, C.R. told Grandmother that he was always happy spending

time with her and that God was number one is his life and Grandmother was

number two. Apple also observed the Children’s demeanor. She noted that,

routinely, the Children would “be very subdued and almost sad” when they

arrived at the facility for the visits; however, they would be very happy upon

seeing the Paternal Grandparents. (Tr. p. 226). Apple’s overall observation

was that the Children were closely bonded with the Paternal Grandparents.

The last visit occurred in September of 2014, and the Children were dismayed

by the fact that it would be the last time they visited with the Paternal

Grandparents. According to Apple, throughout the visits, she did not observe

any interaction between the Children and the Paternal Grandparents that gave

her any concern. Based on her observations, toward the end of the supervised

visits, Apple suggested that the supervised visits should be moved into the

Paternal Grandparents’ home. Apple pointed out that the Child and Family

Partners offices was a sterile environment to have visitations. [9] In accordance with the March 20, 2014 order which required Hood to assess

the Children’s therapeutic progress and proffer her recommendation at the end

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of the six-month period, Hood issued her findings and recommendations on

March 26, 2015. Prior to issuing her report, Hood received Apple’s visitation

notes. Hood noted that

When visitation moved to a supervised setting, [C.R.] maintained his confidence and school performance but showed greater emotional disregulation. [C.R.] related in play therapy that he preferred visiting in the supervised setting, as compared to in the [Paternal Grandparents’] home. PTSD themes though minimized re-occurred.

(Conf. Exh. D). With regard to Apple’s role as visitation supervisor, Hood was

of the opinion that Apple was biased. Specifically, Hood stated that Apple was

of the false impression that the Paternal Grandparents, and not the Children,

were her clients. Based on her findings, Hood recommended to appoint a new

visitation supervisor; and that visitation should be supervised and occur at least

four times a year for a period of four to six hours. [10] On December 1, 7, and 16, 2016, the trial court held a status hearing to evaluate

the future course of the Paternal Grandparents’ visits. Hood testified that prior

to the First Appeal, when visitation was occurring in the Paternal

Grandparents’ home, C.R. was emotionally withdrawn: he had melt downs and

lacked confidence. Hood testified that C.R. showed PTSD symptoms which

were demonstrated repeatedly during play therapy sessions. It was Hood’s

opinion that when the visitation was suspended following our remand in the

First Appeal, from August of 2013 until April of 2014, C.R. demonstrated

increased confidence, diminished emotional distress, began sleeping well on his

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own, and enhanced his performance at school. Hood also reported that A.R. is

happy in Adoptive Father’s home. It was Hood’s opinion that there is an

obvious affection between Adoptive Father and the Children, and the Children

depend on Adoptive Father for nurturing, safety, and comfort. [11] At the time of the status hearing, Hood’s frequency in meeting with the

Children had lessened to approximately once every five weeks for C.R. and

even less often for A.R. primarily due to their progress and adjustment. In

2015, Hood met with C.R. a total of eight times. Hood testified that C.R. has

developed into a well-adjusted child who is getting straight A’s in school, sleeps

in his own bed, attends Boy Scouts, and has friends. With respect to Apple’s

request, Hood rejected the idea of moving visitations from the facility to the

Paternal Grandparents’ home. At the close of her testimony, Hood

recommended the appointment of a different visitation supervisor and

preservation of supervised visits to occur at least four times a year for about four

to six hours. Hood’s status report of March 26, 2015, did not set an end-date to

the quarterly supervised visits that she had proposed; however, at trial, she

advised that these supervised visits should perhaps remain until C.R. entered

his teenage years “where he could [] speak about his own adjustment and his

own needs.” (Tr. p. 68). At the time of the hearing, C.R. was eleven years old

and A.R. was eight years old. [12] While the First Appeal was pending, in 2013, Hood referred C.R. to Dr. Jane

Yipp (Dr. Yipp), a neuro scientist and a visiting professor at Purdue University,

to undergo brain mapping. Hood believed that Dr. Yipp would aid her with

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additional information other than what she had established in her play therapy

sessions with C.R. Dr. Yipp testified that she conducted a review of C.R.’s

brain activity and brain circuit connectivity. Five tests were conducted in 2013

and a single test in 2015. Dr. Yipp stated that she tracked C.R.’s results and

compared them with a statistical data base of individuals that are considered

“normal.”. (Tr. p. 81). Dr. Yipp described the process as completely automated

and was similar to a blood or urine test. Dr. Yipp testified to at least 10,000

peer reviewed articles supporting this sort of testing. Dr. Yipp explained C.R.’s

brain mapping results after visiting with the Paternal Grandparents as showing

brain activity that is outside the normal range to the point of concern. On the

other hand, the one test conducted in 2015, when C.R. was not visiting with the

Paternal Grandparents, the results showed significant normalization of the

brain map. [13] Following Dr. Yipp’s testimony, Dr. Tracy Gunter (Dr. Gunter), an associate

professor for clinical psychiatry and professor of law at Indiana University,

testified as an expert witness for the Paternal Grandparents. Dr. Gunter

specified that the equipment that Dr. Yipp used for the brain mapping was not

FDA approved for providing a diagnoses, and further reported that there were

no peer reviewed studies to support her study. Dr. Gunter was of the opinion

that if there were concerns with C.R.’s stress levels while visiting with the

Paternal Grandparents, then the Paternal Grandparents should have been

present during the testing. In addition, Dr. Gunter opined that the stress

exhibited by C.R. was not necessarily a bad thing. Dr. Gunter concluded that

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Dr. Yipp’s brain mapping tests had not achieved any degree of acceptance in

the relevant scientific community and her reports were of no benefit to the trial

court in determining the visitation. [14] C.R.’s psychiatrist, Dr. Crane, also testified. Dr. Crane, who was seventy-eight

years old, stated that he had seen C.R. intermittently over the past five years

and estimated he had nearly forty sessions with C.R. Dr. Crane indicated that

his appointments with C.R. had been less frequent in the last few years, and in

2015, he saw C.R. on two occasions. At the status hearing, Dr. Crane rejected

the idea that a child may suffer from PTSD. Following Dr. Crane’s testimony,

Adoptive Father called Dr. Crane’s wife. Dr. Crane’s wife stated that five years

ago, Dr. Crane was examined by a neurologist for early signs of dementia. Dr.

Crane’s wife added that in the past six months, Dr. Crane had limited ability,

on occasion, to piece his thoughts together. Dr. Crane’s wife stated that when

Dr. Crane testified on December 1, 2015, there was some confusion with his

testimony—i.e., Dr. Crane was asked how long he had practiced as a physician

or an attorney, and he stated those were hard questions. In addition, Dr.

Crane’s wife testified that following Dr. Crane’s reversal of C.R.’s PTSD

diagnosis, “there was weeping that occurred when he was confronted with the

report[,] he began speaking of some of the men or veterans in Vietnam and the

content changed from [C.R.].” (Tr. p. 264). In conclusion, Dr. Crane’s wife

indicated that her husband exhibited early signs of dementia. [15] At the close of the evidence, the trial court instructed the parties to file their

proposed findings of fact and legal conclusions. On February 16, 2016, the trial

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court entered its Order stating, in part, that the Paternal Grandparents had

overcome the presumption that Adoptive Father’s decision to limit their

visitation was in the Children’s best interest. As such, the trial court concluded

that Hood’s proposal that Paternal Grandparents’ visitation should be limited to

quarterly supervised visits by a new agency for an indefinite period of time was

unreasonable; and Adoptive Father’s decision to rely on Hood’s commendation

was likewise unreasonable. Thus, the trial court ordered the reestablishment of

unsupervised visitation of “every other weekend from 10:00 a.m. Saturday to

6:00 p.m. Sunday.” (Amended Appellant’s App. Vol II, p. 47). In addition, the

trial court granted the Paternal Grandparents “two (2) weeks of uninterrupted

parenting time each summer.” (Amended Appellant’s App. Vol II, p. 47). [16] Adoptive Father appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

I. Standard of Review

[17] In determining matters of family law, we accord “substantial deference” to the

decisions of the trial court. In re Visitation of L-A.D.W., 38 N.E.3d 993, 997,

(Ind. 2015). Pursuant to Indiana Code section 31-17-5-6, the trial court

supported its Order for grandparent visitation with specific findings of fact and

conclusions thereon. As such, on appeal, our court applies the well-established,

two-tiered Indiana Trial Rule 52 standard of review: first, we consider whether

the evidence supports the trial court’s findings; second, we determine whether

the findings support the judgment. In re Visitation of H.B., 21 N.E.3d 867, 870

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(Ind. Ct. App. 2014) (quoting In re visitation of M.L.B., 983 N.E.2d 583, 585

(Ind. 2013)). We “shall not set aside the findings or judgment unless clearly

erroneous, and due regard shall be given to the opportunity of the trial court to

judge the credibility of the witnesses.” Ind. Trial Rule 52(A). We will find

clear error if “there is no evidence supporting the findings or the findings fail to

support the judgment [,]” or if the trial court “applies the wrong legal standard

to properly found facts.” K.I. ex rel. J.I. v. J.H., 903 N.E.2d 453, 457 (Ind. 2009).

II. Grandparent Visitation

[18] Grandparents “do not have the legal rights or obligations of parents,” and “do

not possess a constitutional liberty interest in visitation with their

grandchildren.” Swartz v. Swartz, 720 N.E.2d 1219, 1221-22 (Ind. Ct. App.

1999). On the other hand, parents do have a “constitutionally recognized

fundamental right to control the upbringing, education, and religious training of

their children.” Id.; see also Troxel v. Granville, 530 U.S. 57, 65-66, (2000).

However, our legislature has enacted the Grandparent Visitation Act (Act), Ind.

Code § 31-17-5-1, recognizing that “a child’s best interest is often served by

developing and maintaining contact with his or her grandparents.” Swartz, 720

N.E.2d at 1221; see Troxel, 530 U.S. at 63-64 (discussing rationale for protecting

relationship between grandparent and child). Accordingly, Indiana Code

section 31-17-5-1 constitutes a balance between “the rights of parents to raise

their children as they see fit and the rights of grandparents to participate in the

lives of their grandchildren.” Id.

Court of Appeals of Indiana | Memorandum Decision 79A02-1603-GU-569 | December 27, 2016 Page 15 of 31 [19] Under the Act, a trial court may grant visitation rights if it determines that

“visitation rights are in the best interest of the child.” I.C. § 31-17-5-2. This

determination is a matter for the trial court’s discretion, and we will reverse

only upon a showing of an abuse of that discretion. Swartz, 720 N.E.2d at

1221. An abuse of discretion exists where the trial court’s decision is clearly

against the logic and effects of the facts and circumstances before the trial court

or the reasonable, probable deductions to be drawn therefrom. Id. We will

neither reweigh the evidence nor judge the credibility of the witnesses. Id. [20] We note that grandparent visitation must be balanced with the fact that the

“natural parents have a fundamental constitutional right to direct their

children’s upbringing without undue governmental interference,” and “a child’s

best interests do not necessarily override that parental right.” Id. at 586. To

protect this fundamental right, our supreme court has mandated that a trial

court’s order on grandparent visitation must address the following four factors:

(1) a presumption that a fit parent’s decision about grandparent visitation is in the child’s best interests (thus placing the burden of proof on the petitioning grandparents);

(2) the “special weight” that must therefore be given to a fit parent’s decision regarding nonparental visitation (thus establishing a heightened standard of proof by which a grandparent must rebut the presumption);

(3) “some weight” given to whether a parent has agreed to some visitation or denied it entirely (since a denial means the very existence of a child-grandparent relationship is at stake, while the

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question otherwise is merely how much visitation is appropriate); and

(4) whether the petitioning grandparent has established that visitation is in the child’s best interests.

Id. Moreover, “the Grandparent Visitation Act contemplates only occasional,

temporary visitation that does not substantially infringe on a parent’s

fundamental right” to direct his or her child’s upbringing. Id. at 588. [21] In the instant case, after our remand in the First Appeal, there is no dispute that

the trial court followed our instructions and ordered supervised visitation. In its

visitation order of March 20, 2015, the trial court directed that the supervised

visits should run for six months and Hood to proffer her recommendations

thereafter. In a three-day evidentiary hearing in December 2015, the trial court

heard testimonies of the parties and then on February 16, 2016, the trial court

issued its Order stating, in part,

41. The court finds that [Dr.] Yipp’s brain mapping tests are not based on generally accepted scientific principles and that the tests were not concluded in a way that could yield valid results. The [c]ourt disregards the testimony and the findings of [Dr.] Yipp entirely.

42. The [c]ourt finds that [Dr.] Crane no longer adheres to a diagnosis of PTSD for [C.R.] and therefore Hood’s continued diagnosis of PTSD lacks medical basis. Dr. Crane’s dementia makes his supervision of Hood unreliable with respect to the specific questions whether Hood’s current recommendation is valid.

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43. The [c]ourt finds that the recommendation of Hood reflect[s] bias. An unbiased therapist would have allowed Apple to observe visitation in the [Paternal Grandparents’] home to determine whether visitation in that venue was causing stress to [C.R.]. The refusal to proceed with that examination reflect[s] a bias. The recommendation that supervised visits continue indefinitely reflect a bias.

****

CONCLUSIONS OF LAW

****

2. The [] [Paternal Grandparents] have overcome the presumption that [Adoptive Father’s] decision to limit their visitation is in the best interest of the [Children] by clear and convincing evidence.

3. [] Hood’s recommendation that grandparent visitation be limited to quarterly visits supervised by a new agency for indefinite period of time is unreasonable and lacks reasonable basis.

4. [Adoptive Father’s] decision to accept recommendation of [] Hood is unreasonable.

5. It is in the [C]hildren’s best interest to resume unsupervised visitation with the [Paternal Grandparents].

6. The [Paternal Grandparents] shall have unsupervised visitation every other weekend from 10:00 a.m. Saturday to 6:00 p.m. Sunday.

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7. The [Paternal Grandparents] shall have two (2) weeks of uninterrupted parenting time each summer. Written notice of the dates of parenting time shall be given to [Adoptive Father] at least ninety (90) days in advance.

(Amended Appellant’s App. Vol II, pp. 45-46). On appeal, Adoptive Father

raises two main contentions: (1) the trial court’s findings and conclusions

relating to Hood’s recommendation is unsupported by the evidence; and (2) the

trial court’s finding concerning Dr. Crane is facially contradictory and

unsupported by the evidence.

A. Hood’s Recommendation

[22] Finding #43 of the February 16, 2016 Order stated that Hood’s

recommendation was biased, since an unbiased therapist would have allowed

Apple to observe visitation in the Paternal Grandparents’ home in order to

determine whether visitation in that venue was causing stress to C.R. The trial

court further stated that Hood’s proposal that supervised visits should continue

indefinitely was also prejudiced. [23] In his appellate brief, Adoptive Father contends that Apple had no therapeutic

relationship with the Children, and Hood’s rejection of Apple’s request is not a

reflection of bias. Adoptive Father first points out that Apple was not the

Children’s therapist and was therefore not in a positon to make pertinent

recommendations with regard to visitation. Further, Adoptive Father contends

that “Apple did not have the history of the case, had not had significant or long

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lasting contact with the [C]hildren, and functioned solely as a supervisor for the

[Paternal Grandparents’] visits.” (Appellant’s Br. p. 17). [24] At the status hearing in December 2015, Apple stated that she has a Master’s of

Science in guidance and counseling with an emphasis on community

counseling. Apple testified that her primary role in the instant case was to

maintain the safety of the Children during the visits. Apple indicated that she

was familiar with the background of the case. Specifically, Apple testified that

toward the beginning of her appointment as a visitation supervisor, Hood called

her and indicated that she wanted her to have “all the appropriate information”

regarding the case. (Tr. p. 224). Apple stated that Hood thereafter sent an

email of “some drawing that [C.R.] had created in therapy,” and accompanying

information with respect to that diagram was offered via telephone. (Tr. p.

224). When Apple was questioned as to why she advised that the visits be

relocated to the Paternal Grandparents’ home, she explained that after

“speaking with [] Hood,” she highlighted that she did not observe “anything of

concern,” and that Child and Family and Partners was a “very sterile

environment” to have visitations. (Tr. pp. 235-36). Apple further explained

that her proposal was based on Hood’s previous concern “that something was

occurring in the home” therefore causing stress for C.R. (Tr. p. 236). At the

close of her testimony, and over Adoptive Father’s objection, Apple stated that

she would recommend future unsupervised visitations to occur at least twice

monthly “for these parents and it could be weekends.” (Tr. p. 240). Apple

testified that her endorsement took into consideration the importance of the

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Children having a “meaningful relationship” with the Paternal Grandparents.

(Tr. p. 241). During cross-examination, Apple was again asked about her

contextual knowledge regarding the case. Apple testified she was unaware of

the date when biological mother was killed, or whether C.R. observed it. Apple

indicated that “I do not know all of the specifics, I know the generalities of

what happened in this case and how it opened. I didn’t profess to be an expert

on the history.” (Tr. p. 242). In addition, Apple testified that she had not

reviewed any of Hood’s or Dr. Crane’s reports regarding the Children, and had

only gone through “a few court orders;” however, she could not recall the

specific orders she had read. (Tr. p. 243). [25] The record shows that Hood has been the Children’s therapist since June of

2009 after biological mother’s murder. Hood has a Bachelor’s Degree in social

work, a Master’s of Science with an emphasis in marriage and family therapy,

and twenty-six years of experience in the area of abuse and neglect for children

and families of trauma. Hood testified that she had “a large body of

information from [her] own relationship and interaction with the [C]hildren in

hours of therapy.” (Tr. p. 47). Hood stated that in recommending future

supervised visits, she took into account various factors: First, she highlighted

C.R.’s past PTSD symptoms while visiting with the Paternal Grandparents; the

fact that C.R.’s PTSD symptoms had greatly narrowed during the period of

supervised visitation; and that C.R.’s PTSD symptoms were nonexistent when

the visits were not taking place. Accordingly, Hood stated that in balancing

those factors and based on the importance of ensuring that C.R. had a “life that

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is free from the former symptoms,” future supervised visitations were vital. (Tr.

p. 25). When asked as to why she disregarded Apple’s proposal to move the

supervised visits from the facility to the Paternal Grandparents’ home, Hood

testified that

[I] questioned the validity of her conclusions based on the fact that I think her observations were in a very narrow context. She had no history of a case, was not interested in gathering history of the case from me and I think that [she] was basing her recommendations simply on what she saw and not on a larger context of information that was available. This case had gone on for many years before it got to [] Apple and I didn’t believe that it was appropriate for a recommendation to be made based on observations of visitation and limited setting as well as []Apple had specifically emphasized to me that her clients in this situation were not the [C]hildren but her clients were the [Paternal Grandparents]. I found that to be rather odd and also suggest[ed] some bias towards the [Paternal Grandparents] best interest as opposed to the [C]hildren’s best interest.

(Tr. pp. 52-53). [26] We observe that our instructions on remand in the First Appeal was that the

Paternal Grandparents’ visitation would be supervised and last for six months.

The trial court’s March 2014 visitation order clarified that visitation would be

overseen in an agency setting and Hood should offer her recommendations

thereafter. From the record, it appears that Apple and Hood had comparable

educational backgrounds and both were qualified therapists. However, the

March 2014 visitation order set their roles apart. The trial court appointed

Child and Family Partners to supervise the visitation sessions. Hood remained

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as the Children’s therapist and her role was to tender her recommendation after

the six months of supervised visits. Based on the March 2014 visitation order,

Apple, having a supervisory role, overstepped her mandate by suggesting that

the visits should be moved to the Paternal Grandparents’ home. Moreover, as

we noted in the foregoing, Hood’s rejection of Apple’s proposal was based on

some genuine concerns, i.e., the fact that Apple’s recommendation was based

on a very narrow context, Apple had limited background information, and

because Apple viewed the Paternal Grandparents as her clients. [27] In light of the foregoing, we conclude that Finding #43, stating, in part, that

Hood’s denial of Apple’s request showed bias, is unsupported by the evidence.

Hood’s focus in the instant case had been to provide therapeutic support to the

Children. In the First Appeal, we valued Hood’s role as the Children’s

therapist. We noted Hood’s concern of C.R.’s heightened stress levels when he

visited with the Paternal Grandparents. Notably, part of the reason we

remanded was because the “evidence showed that something in relation to

those visits was, as Hood phrased it, stirring up C.[R].” In re Guardianship of

C.S., No. 79A02-1210-GU-863, at *9. Remarkably, in the most recent order of

February 16, 2016, the trial court even credited Hood’s therapy sessions and it

specified in Finding # 44 that C.R.’s progress from “wildcat to well-adjusted,

normally developed child” was partly attributed by Hood’s therapy. (Amended

Appellant’s App. p. 46). At the grandparent visitation status hearing in

December 2015, Hood stated, “I do have bias and it is for the best interests of

[C.R.]. Now in saying that it’s important to be objective and my bias is not

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toward what [Adoptive Father] thinks is best or what [the Paternal

Grandparents] think is best but towards what therapeutically appears to be best

for . . . [C.R.]” (Tr. p. 60). More significantly is that the visitation order of

March 2014 mandated Hood to offer her commendation after the six months of

supervised visits. Apple’s role was specifically limited to a supervisory role and

her recommendation on whether the visits should be moved to the Paternal

Grandparents’ home or how future visitations should proceed, was out-of-place. [28] That said, we also address the trial court’s Conclusion #3 stating that Hood’s

recommendation that visitation should be supervised four times a year for an

indefinite period of time was unreasonable. Adoptive Father challenges this

conclusion stating that it is erroneous and we agree. Hood’s status report dated

March 26, 2015, undeniably did not propose an end-date for the future

supervised visits; however, at the status hearing, she advised that these

supervised visits should possibly remain until C.R. entered his teen years

“where he could [] speak about his own adjustment and his own needs.” (Tr. p.

68). Because Hood did give an end-date to the proposed supervised quarterly

visits, we conclude that the trial court’s conclusion is erroneous in this respect. [29] Consequently, we find Conclusion #4 is equally erroneous and unsupported by

the evidence. As noted, the trial court concluded that Adoptive Father was

unreasonable on relying on Hood’s recommendation of future supervised visits.

As discussed above, we concluded that Hood’s recommendation on future

supervised visits was reasonable because it was based on the Children’s

therapeutic needs, the fact that Apple was not aware of all the background

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information, and because Apple viewed the Paternal Grandparents as her

clients. [30] Moreover, we find that Adoptive Father had some sincere reservations. At the

status hearing in December 2015, Adoptive Father stated that when visitation

was not taking place between August of 2013 and April of 2014, C.R.

“recovered remarkably. [C.R.] went from a child that had trouble dealing with

things to a normal child that wanted to do more things, expressed more things

and became a happy child.” (Tr. p. 138). Adoptive Father added that during

the six months of supervised visitation, C.R. “became more irritated . . . [,]short

tempered[,] and could not handle small problems so to speak.” (Tr. p. 134).

When asked if he concurred with Hood’s recommendation of future quarterly

supervised visits, Adoptive Father reiterated Hood’s statement that the Children

were well bonded with the Paternal Grandparents and that “there should be

some contact.” (Tr. p. 142). Based on our conclusion that Hood’s

recommendation was reasonable, and coupled with Adoptive Father’s

legitimate concern that C.R. was exhibiting problems following the six months

of supervised visitation, we hold that the trial court’s conclusion that Father

was unreasonable in relying on Hood’s recommendation is unsupported by the

evidence and therefore erroneous.

B. Dr. Crane’s Diagnosis of C.R.’s PTSD Symptoms

[31] Next, we address Adoptive Father’s contention that the trial court’s findings

regarding Dr. Crane are inconsistent and not supported by the evidence.

Finding #42 of the trial court’s order stated in its first sentence that Dr. Crane Court of Appeals of Indiana | Memorandum Decision 79A02-1603-GU-569 | December 27, 2016 Page 25 of 31

no longer adheres to C.R.’s PTSD diagnosis and therefore, Hood’s continued

diagnosis of PTSD lacked medical basis. In its second sentence, the trial court

noted that Dr. Crane’s dementia makes his supervision of Hood unreliable with

regard to whether Hood’s current recommendation is valid. Adoptive Father

argues that this finding is erroneous because (1) Dr. Crane originally approved

Hood’s recommendation with regards to C.R.’s PTSD diagnosis; and (2) the

trial court’s statement that Dr. Crane suffers from dementia but also giving

significant weight to his testimony with respect to his nullification of C.R.’s

former PTSD diagnosis, is an unclear and inconsistent statement. [32] At the grandparent visitation status hearing in December 2015, Hood testified

that she continued to see the Children for therapy while the supervised visits

were ongoing. Hood stated that C.R. showed noticeable reduction in his PTSD

symptoms during the period of supervised visitation and continued

improvement was exhibited when visitation did not occur. Hood indicated

that, presently, C.R. is a well-adjusted child who is getting straight A’s in

school, and his anxiety was much lower during the period of supervised visits,

and nonexistent when he was not visiting with the Paternal Grandparents.

Ultimately, Hood’s recommendation was that, going forward, visitation should

be supervised on a quarterly basis so as to “allow C.R. [to] have a life that is

free from the former symptoms that he experienced.” (Tr. p. 25). [33] Notably, during her direct examination, Hood testified that she is not qualified

to issue a PTSD diagnosis, however, as a licensed medical and family therapist,

she is “qualified to suggest a diagnosis which is confirmed by a psychiatrist.”

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(Tr. p. 39). The record shows that shortly after biological mother’s murder in

2009, Hood was appointed by the trial court to work therapeutically with the

Children. Hood indicated that she discussed the case frequently with Dr.

Annamis, the psychiatrist supervisor at the Indiana Center for Children and

Families. Hood testified that Dr. Annamis was responsible for reviewing

“treatment plans as well as our diagnosis.” (Tr. p. 11). From the record, it

appears that Dr. Annamis was involved at the initial stages, i.e., sometime

between 2009 and 2010 after which she had no further involvement. Between

2009 and 2010, Hood saw the Children for therapy, and after several sessions of

play therapy, Hood diagnosed C.R. with PTSD. In December 2010, Hood was

asked to engage the services of another psychiatrist, in this case, Dr. Crane. Dr.

Crane reviewed the materials that Hood had sent him in relation to her therapy

with the Children and conducted several assessments. Dr. Crane confirmed

Hood’s recommendation of C.R.’s PTSD symptoms. [34] An integral issue in the First Appeal was whether C.R. suffered from PTSD. At

the hearing of Adoptive Father’s first petition to modify grandparent visitation,

Dr. Crane established that he agreed with Hood’s diagnosis of C.R.’s PTSD. In

the First Appeal, we valued Hood’s recommendation mainly due to Dr. Crane’s

endorsement and we partly determined that the trial court’s order was

erroneous because the evidence from the therapists, including Hood, confirmed

C.R.’s PTSD symptoms, and those symptoms were heightened when C.R. was

visiting with the Paternal Grandparents.

Court of Appeals of Indiana | Memorandum Decision 79A02-1603-GU-569 | December 27, 2016 Page 27 of 31 [35] Also, we agree with Adoptive Father’s contention that Finding #42 is

inconsistent and unclear in the following respects: In the first portion of that

finding, the trial court stated that Dr. Crane no longer adhered to C.R.

diagnosis of PTSD; however, in the second portion of that finding, it

discredited Dr. Crane’s supervision of Hood’s recommendation based on his

dementia. It seems as if the trial court credited Dr. Crane’s repudiation of

C.R.’s PTSD diagnosis; nonetheless, failed to give weight to his testimony

based on his dementia. The conflicting nature of the two statements makes the

clarity of this finding difficult. Moreover, we find that the last portion of

Finding #42 inferring that Dr. Crane was responsible for supervising Hood’s

current recommendation, incorrect. Hood testified at the grandparent visitation

status hearing in December 2015 that she needed a psychiatrist to approve any

of her PTSD diagnoses. In the First Appeal, Hood’s PTSD diagnosis of C.R.

was endorsed by Dr. Annamis, and Dr. Crane. It was Hood’s testimony at the

status hearing that supervised visits were imperative so as to maintain the

Children’s overall progress. She noted that future supervised visits would also

ensure that C.R. had a life that was free from former PTSD symptoms. Here, we

find that it was not necessary for Hood’s current recommendation, absent a

PTSD diagnosis, to be endorsed by a psychiatrist. Her recommendation was

simply based on the best interest of the child. As such, the trial court’s

suggestion that Dr. Crane was essential in endorsing Hood’s current

recommendation is an incorrect statement. Given the erroneous issues we have

identified in this finding, we lack confidence in the accuracy of the judgment.

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III. Remedy on Remand.

[36] Based on our discussion, we have concluded that certain significant findings of

the trial court were not supported by the evidence, and that significant

conclusions were entered based upon those erroneous findings. Specifically, we

have determined that Hood’s decision to reject Apple’s request of moving

supervised visits to the Paternal Grandparents’ home was not biased. On this

issue, we established that Hood’s refusal was founded on authentic concerns,

i.e., Apple’s recommendation was based on a very narrow context, Apple had

limited background information regarding the case, and because Apple viewed

the Paternal Grandparents as her clients. Moreover, we noted that the March

2014 visitation order restricted visitation in agency setting and Apple’s role was

limited to supervising those visits. Accordingly, we established that Apple

exceeded her mandate by suggesting how visits should proceed. Also, we

determined that Hood’s recommendation of supervised visits had a proposed

end-date, i.e., Hood stated that supervised visits should perhaps remain until

C.R. entered his teenage years “where he could [] speak about his own

adjustment and his own needs.” (Tr. p. 68). In addition, we determined

Father’s reliance on Hood’s recommendation was reasonable. With respect to

the finding regarding Dr. Crane, we found that finding conflicting in some

respects—the trial court assigned more weight to Dr. Crane’s repudiation of

C.R.’s former PTSD diagnosis while at the same time discrediting his testimony

with respect to his dementia. Finally, we determined that it was not necessary

for Hood’s current recommendation of future quarterly supervised visitations,

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absent a PTSD diagnosis, to be endorsed Dr. Crane. Accordingly, we reverse

the trial court’s order based on the fact that those erroneous findings and

conclusions go to the very heart of the matter and form a substantial portion of

the trial court’s judgment. [37] As we set out above, in the First Appeal, we determined that there was

something stirring up C.R. when he visited with the Paternal Grandparents. In

light of that, on remand, we directed supervised visits lasting six months. Hood

was to fashion her recommendation following the six months of visitation.

Again, the main contested issue is the future course of the Paternal

Grandparents’ visitation following the six-month period. At the grandparent

visitation status hearing in December 2015, Adoptive Father introduced

substantial evidence relating to C.R.’s former PTSD diagnosis, how those

symptoms were exacerbated when C.R. visited with the Paternal Grandparents;

how C.R. was alleviated from those symptoms when visitation was not

occurring between August 2013 and April 2014; and the recurrence of those

PTSD symptoms during the six-months of supervised visits. Hood also gave

her therapeutic opinion regarding C.R.’s PTSD symptoms since 2009. Hood

testified that in order to dispel all future concerns on the relapse of C.R.’s

former PTSD symptoms, it was in C.R.’s best interest that future visits, at best

be supervised four times a year. [38] Having determined that the trial court’s order is defective, we must now

determine the appropriate remedy. We have previously concluded that an

appropriate remedy on remand is entry of new findings and conclusions based

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upon the existing record. See In re Guardianship of A.L.C., 902 N.E.2d 343, 359-

60 (Ind. Ct. App. 2009) (remanding for “more specific findings and

conclusions,” but “without a hearing.”). Given the evidence before us, we hold

that the trial court’s order granting unsupervised visits to the Paternal

Grandparents did not overcome Adoptive Father’s fit decision to limit visitation

based on Hood’s recommendation. See McCune, 783 N.E.2d at 759.

Accordingly, we remand to the trial court for entry of new findings and legal

conclusions consistent with this opinion.

CONCLUSION

[39] In sum, we remand this case to the trial court for new findings and conclusions

without hearing new evidence. [40] Reversed. [41] Bailey, J. and Barnes, J. concur

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