Brian Blankenship v. Kathy F. and Larry G. Duke

FILED Aug 09 2019, 8:45 am

CLERK Indiana Supreme Court Court of Appeals and Tax Court

ATTORNEY FOR APPELLANT Cara Schaefer Wieneke Wieneke Law Office, LLC Brooklyn, Indiana

IN THE COURT OF APPEALS OF INDIANA

Brian Blankenship, August 9, 2019 Appellant-Respondent, Court of Appeals Case No. 19A-GU-518 v. Appeal from the Perry Circuit Court Kathy F. and Larry G. Duke, The Honorable Appellees-Petitioners Lucy Goffinet, Judge The Honorable Karen Werner, Magistrate Trial Court Cause Nos. 62C01-1711-GU-21 62C01-1711-GU-22

Vaidik, Chief Judge.

Case Summary [1] In this case, the trial court appointed grandparents as guardians over their

grandchildren and awarded the father parenting time with the children “as

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agreed upon by the parties.” The father now appeals, arguing that because the

evidence shows that he and the grandparents do not get along, the trial court

essentially awarded him no parenting time at all. We agree with the father,

vacate this part of the trial court’s order, and remand this case to the trial court.

On remand, the trial court should order reasonable parenting time for the

father, balancing his right to visit the children with the children’s best interests.

Facts and Procedural History [2] Brian Blankenship (“Father”) and Shannon Blankenship (“Mother”), who are

divorced, have two daughters, A.B., born in 2001, and G.B., born in 2005

(collectively, “Children”). In July 2017, the Indiana Department of Child

Services (DCS) filed a petition alleging that Children were children in need of

services (CHINS) because of Father’s and Mother’s drug use. As part of the

CHINS case, Children were placed with Mother’s parents, Larry and Kathy

Duke (collectively, “the maternal grandparents”). [3] On November 17, 2017, the maternal grandparents filed a separate action

seeking a guardianship over Children, alleging that Father and Mother were

“not presently capable of properly caring for” them. Appellant’s App. Vol. II p.

8. The maternal grandparents requested supervised visitation for both Father

and Mother:

If this Guardianship is granted, the Petitioners propose that [Father and Mother] have supervised visitation with their

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child[ren] at all reasonable times and places as agreed to by the parties.

Id. [4] Father and Mother appeared at a hearing on December 12. Mother consented

to the guardianship, but Father did not. The trial court continued the

guardianship hearing and later appointed counsel for Father.1 [5] At the guardianship hearing, Hollie Dawson, the family case manager (FCM)

in the CHINS case, testified that ever since Father had started receiving

supervised visits with Children in the CHINS case in December 2017, he had

attended nearly every visit and that the visit notes indicated that Father had a

good relationship with Children and was attentive to them and their needs. She

also testified that Father was compliant with his drug screens. However, FCM

Dawson believed that it was in the best interests of Children that the maternal

grandparents be appointed guardians because Children were “safe” and

“comfortable” in their home. Tr. p. 187. She also believed that it was in the

1 The trial court appointed counsel for Father on January 2, 2018, and Father’s counsel filed a Motion for Automatic Change of Judge on January 19. After a hearing on the issue, the trial court denied Father’s motion. On appeal, Father states that he had thirty days from the date the case was placed and entered on the CCS to file a motion for change of judge pursuant to Indiana Trial Rule 76(C). He admits that he did not file his motion for change of judge within thirty days of November 17, 2017; however, he claims that his delay “should be excused” because he wasn’t served with notice of the guardianship proceedings. Appellant’s Br. p. 12. Assuming that Father wasn’t served with notice of the guardianship proceedings, Father appeared at the December 12 hearing and said that he had heard about the proceedings from someone else. Therefore, even if we started the thirty-day clock on December 12, Father still filed his motion for change of judge more than thirty days later, on January 19. As for Father’s claim that the thirty-day clock shouldn’t start until counsel is appointed, he cites no authority for this proposition, and we decline to carve out such an exception.

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best interests of Children that they have a relationship with Father and that this

relationship should include parenting time. Id. at 195-96. In fact, she said that

reunification was still the goal in the CHINS case. [6] The maternal grandmother testified that Children had lived with her and her

husband for about four years and that Father had supervised visits with

Children every Sunday for two hours in the CHINS case. She added that she

and her husband had a “No Trespassing Order” against Father. Id. at 54. The

maternal grandmother also testified that if she were allowed to determine

Father’s parenting time, she would “l[eave] it up to the girls, when they wanted

to see” him. Id. at 62. When asked if she would encourage a relationship

between Father and Children, the maternal grandmother responded, “Well, if

[Father] changed. I don’t see that. But if he . . . had changed I would. Yes.”

Id. at 65. Finally, when asked if it would be useful for her and Father to

communicate regarding Children, the maternal grandmother said no because

“we can’t get along together.” Id. at 67. In fact, the maternal grandmother said

that she had not tried to communicate with Father “at all.” Id. at 55.

Court of Appeals of Indiana | Opinion 19A-GU-518 | August 9, 2019 Page 4 of 8 [7] In December 2018, the trial court issued an order granting the guardianship.2

Specifically, the court found:

9. The DCS caseworker state[d] that it is in [C]hildren’s best interest that Kathy and Larry Duke be granted guardianship over [them]. The DCS caseworker stated that [F]ather is compliant with drug screens and that he has attended most visits with his children since he started receiving visits in the CHINS case around December, 2017.

10. The Court finds [F]ather to be unfit to care for these children on a day to day basis.

11. The Court finds that the appointment of a guardian is necessary as a means of providing care and supervision for [Children].

12. The Court finds it is in [C]hildren’s best interest to appoint Kathy and Larry Duke as guardians over [them].

13. Visitation by [M]other and [F]ather shall be as agreed upon by the parties.

Appellant’s App. Vol. II pp. 43-44 (emphasis added). Father filed a motion to

correct error asking for more specificity regarding his visitation with Children:

7. Testimony by Father and by [the maternal grandmother] indicated a high level of animosity between the parties. [The

2 A few days later, the trial court in the CHINS case entered an order closing the case because permanency had “been achieved through an approved permanency plan of guardianship.” See Cause Nos. 62C01-1707- JC-168, -170.

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maternal grandmother] testified that she had never tried to facilitate any visits between Father and the Children during the nearly four years that the Children had been living with her.

*****

16. In only granting Father visitation with the children “as agreed upon by the parties,” the Court failed to address the legal imperative to maintain the Children’s relationship with their Father even if a guardianship was granted, especially given the testimony from [FCM Dawson] that it is in the Children’s best interest to continue to have parenting time with Father.

Id. at 45, 46-47. The trial court denied Father’s motion to correct error. [8] Father now appeals.

Discussion and Decision [9] We first note that the maternal grandparents have not filed an appellees’ brief.

When the appellee fails to submit a brief, we will not develop an argument on

her behalf but, instead, we may reverse the trial court’s judgment if the

appellant’s brief presents a case of prima facie error. GEICO Ins. Co. v. Graham,

14 N.E.3d 854, 857 (Ind. Ct. App. 2014).

Court of Appeals of Indiana | Opinion 19A-GU-518 | August 9, 2019 Page 6 of 8 [10] Father contends that the trial court “did not adequately provide for

parenting/visitation for [him] with his children.”3 Appellant’s Br. p. 10. He

points out that “it is clear from the hearing that [the maternal grandparents]

have great difficulty communicating with [him], and no desire to overcome

those hurdles.” Id. at 10-11. Accordingly, Father claims that the trial court’s

order allowing him visitation “as agreed up by the parties” will “inevitably

result in conflict and denial of visitation to [him].” Id. at 11. He therefore asks

us to remand this case so that the trial court “can articulate a minimum amount

of visitation that he should receive each week with his daughters, and articulate

any reasons for limitations or restrictions on that visitation.” Id. at 19. [11] This Court’s opinion in Manis v. McNabb, 104 N.E.3d 611 (Ind. Ct. App. 2018),

is helpful. In that case, we held that when a trial court orders parenting time in

a guardianship case, it cannot allow the guardian, who often has a personal

stake in the matter, to determine the parent’s parenting time with their child

during the guardianship proceedings. Id. at 621. We cautioned that doing so

has the potential to deprive the parent and the child of time together and an

opportunity to develop a meaningful relationship and bond. Id. We explained

that if the parties cannot agree on their own to a parenting-time plan that is in

the best interests of the child, then the trial court must take an active role in

developing one. Id.

3 Father does not challenge the appropriateness of the guardianship itself. He only challenges the part of the trial court’s order regarding parenting time.

Court of Appeals of Indiana | Opinion 19A-GU-518 | August 9, 2019 Page 7 of 8 [12] Here, the trial court awarded Father parenting time “as agreed upon by the

parties.” But as Father argues, the evidence before the trial court was that he

and the maternal grandparents do not get along. And the maternal

grandparents have not filed an appellees’ brief arguing otherwise. By making

the parties agree upon parenting time, the trial court has essentially allowed the

maternal grandparents to determine Father’s parenting time with Children. It

was error for the court to do so. We therefore vacate this part of the trial court’s

order. On remand, the trial court should “order reasonable parenting time for”

Father, balancing his right to visit Children with Children’s best interests. Id. at

620-21 (explaining that when ordering parenting time in guardianship cases, the

“best practice” is for the trial court to make specific findings to support its

parenting-time order). [13] Reversed and remanded.

Riley, J., and Bradford, J., concur.

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