Court of Appeals of Indiana | Opinion 18A-GU-96 | June 11, 2018 Page 1 of 19

ATTORNEY FOR APPELLANT

Dorothy Ferguson

Anderson, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Erica Manis,

Appellant-Petitioner

v.

Trista McNabb,

Appellee-Respondent

June 11, 2018

Court of Appeals Case No.

18A-GU-96

Appeal from the Madison Circuit 

Court

The Honorable Thomas Newman, 

Jr., Judge

The Honorable Christopher A. 

Cage, Master Commissioner

Trial Court Cause No.

48C03-1512-GU-593

Baker, Judge.
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[1] Erica Manis (Mother) appeals the trial court’s denial of her petition to terminate 

Trista McNabb’s (Guardian) guardianship of her child, J.F. (Child), and its 

denial of her request for parenting time. She argues that the trial court erred by 

denying her petition to terminate the guardianship because the evidence 

showed that she was able to care for Child and that the trial court erred by 

concluding that it lacked authority to order parenting time for Mother. Finding 

that the trial court did not err by denying Mother’s petition to terminate the 

guardianship, but that the trial court erred by refusing to consider Mother’s 

request for parenting time, we affirm in part, reverse in part, and remand for 

further proceedings.

Facts

[2] Child was born in 2012. On December 14, 2015, Guardian filed a petition for 

appointment of a guardian for Child.1 A hearing took place on January 5, 

2016, and the following day, the trial court appointed Guardian as Child’s 

temporary guardian. On February 3, 2016, Mother filed a motion to terminate 

the temporary guardianship and a motion requesting parenting time. On 

February 26, 2016, Guardian filed a motion to extend the temporary 

guardianship. On March 10, 2016, the trial court ordered the temporary

guardianship extended.

 

1 The record does not reveal what prompted Guardian to file her petition or the substance of any pleadings or 

hearings regarding the appointment of a temporary, and later, a permanent, guardian.
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[3] Hearings took place on June 7 and 24, 2016, and July 21, 2016. On July 25, 

2016, Mother was charged with unlawful possession or use of a legend drug, 

possession of a controlled substance, and possession of paraphernalia. On 

August 17, 2016, the trial court appointed Guardian as Child’s permanent 

guardian. The trial court did not order parenting time for Mother, instead 

“leaving that issue to the discretion of the Guardian to act in the best interests 

of the minor child in maintaining meaningful contact with all family.” 

Appellant’s App. Vol. II p. 110. 

[4] On March 6, 2017, Mother pleaded guilty to unlawful possession or use of a 

legend drug, and the other charges were dismissed. Mother was placed on 

probation and ordered to participate in random drug screens and treatment at a 

substance abuse rehabilitation center. On May 3, 2017, Mother filed a petition

to terminate the guardianship, arguing that her condition had improved such 

that she could care and provide for Child, or in the alternative, requesting 

parenting time with Child. On May 11, 2017, the trial court denied Mother’s 

request for parenting time, stating that no statutory or other authority existed 

under which the trial court could order parenting time during the guardianship 

proceeding.

[5] On May 10 and July 26, 2017, Guardian filed motions to dismiss Mother’s 

petition to terminate guardianship. The trial court denied both of Guardian’s 

motions. On August 18, 2017, Guardian filed a motion to establish child 

support. A hearing on Mother’s petition to terminate guardianship and 

Guardian’s motion to establish child support took place on October 12, 2017. 
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On December 20, 2017, the trial court denied Mother’s petition and granted 

Guardian’s, making the following findings of fact and conclusions of law:

6. That after this Court imposed its original guardianship order, 

the Mother went inpatient at several facilities . . . . During her 

stay at [one facility] mother was alleged to have made threats of 

harm about the guardian. As such, the guardian, Trista McNabb 

obtained a protected order against mother.

***

8. Mother continues to reside with her grandparents who furnish 

her with everything she needs financially.

9. Mother testified that she hasn’t worked in nearly two years 

but did recently try to work at Pizza King but quit that 

employment after only one-half day.

10. Mother has been in multiple car [collisions] in recent years, 

the most recent of which involved another car that was provided 

by her grandmother when she rear-ended another driver on 

August 31, 2017. In the two years prior, she had totaled two 

other cars through her own fault.

11. Mother currently is unemployed due to a broken leg which 

she received in a recent car accident, but has a pending 

application for Social Security benefits.

12. Jeannie Manis, grandmother of Mother, admitted that 

Mother had used her credit card without authorization. She 

admitted she had made Mother leave the house in fall of 2016 

because she was being “disrespectful”. When furnished with 

copies of electronic communications that Guardian argued was 

evidence of Mother was still engaging [sic] in drug seeking 
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behavior, grandmother acknowledged that this was also another 

reason that Mother had been asked to leave.

13. Witness Lexi Manis recalled a similar incident where 

Mother had been asked to leave her grandmother’s home again 

in summer of 2017, which lasted for only a short time.

***

18. Mother continues to maintain that she does not have a drug 

problem and maintains that she has not abused drugs in over two 

years. She claimed she had not “actively used” since before 

[Child] was born.

19. Mother testified that she attends treatment [at the substance 

abuse rehabilitation center through] individual counseling and a 

psychiatrist. Mother testified that she also attends Narcotics 

Anonymous and a local church.

20. There was evidence presented that as a result of mother’s 

treatment . . . she has seen a psychiatrist that has adjusted her 

medication. Mother’s medication was adjusted in the summer of 

2017. Such an adjustment has had a positive impact on mother.

21. Mother provided mental health records showing five visits 

she had . . . between August 4, 2016, and April 11, 2017. These 

records are inconclusive to show progress is being made, as they 

fail to show regular appointments. The records indicate that 

[Mother] was not compliant with recommendations that were 

made.

22. The evidence is clear that Mother now has a better support 

network in place, than at the time of the imposition of the 

guardianship.
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23. Family and friends have seen a change in mother’s behaviors 

and attitudes over the past six months. Mother regularly watches 

her friend’s grandchildren for long periods of time without issue.

24. The mother sets and manages her own probation, mental 

health and medical appointments.

25. Family members assist Mother to travel to her various 

appointments.

26. Mother has not had any contact with her son since the

summer of 2016. At the time that [she] initially consented to the 

guardianship,[

2

] Mother believed that her contact with her child 

would continue once permanent guardianship was granted.

27. It is also clear that at the time of the imposition of the 

permanent guardianship, Mother opposed it vigorously; aware 

that visitation would not be an issue that the Court would enter 

in the event of the imposition of the guardianship.

***

CONCLUSIONS OF LAW

***

2. The Court has taken in the well-being and best interests of the 

child in making its decision. It is the Court’s conclusion that it is 

 

2 The record does not reveal if or when Mother consented to the guardianship.
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in the best interests of the child that the guardianship continue 

and DENIES Mother’s request to terminate it herein.

3. The Court concludes that the guardian is entitled to an order 

of child support in the sum of $51.00 per week. . . .

***

6. The limited mental records Mother submitted to the court 

were some months old, did not show that she was compliant 

with recommendations, and did not demonstrate or indicate her 

to be a fit parent to the extent that the Court was convinced that 

the need for the guardianship was no longer present; or that 

dismissing the guardianship would be in the best interests of the 

child.

7. Mother expressed belief that at the time of the imposition of 

the original guardianship, she did not have a mental health 

problem or substance abuse problem, instead believing [Child] 

was taken from her because she didn’t have a job.

8. Mother’s subsequent arrest, [and] lack of acceptance of her 

history of drug abuse have limited the progress which she has 

been able to make toward establishing independence despite the 

undoubted improvements that have been witnessed by family and 

friends.

9. The Court concludes that her claimed her [sic] “threat to harm 

the guardian” were not credible threats against the guardian 

when viewed in context of the evidence presented. When taken 

in context, they were generalized statements that do not and 

should not prevent her from having contact with the minor child 

herein.
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10. The Court concludes that Guardian shall take all steps 

necessary to remove the child from being a protected party so as 

to permit contact or visitation. While the Court has no discretion 

in this cause to [] direct that Guardian seek to dismiss or the 

current protective order as it appl[ies] to herself; the Court would 

consider that factor in the future as to whether the current 

guardian is the best person suited to be guardian in the future.

11. As to parenting time/visitation with the child, the Court has 

long expressed its belief that it lacks authority in a Guardianship 

to order a parenting time/visitation schedule; the continued lack 

of contact with mother is a factor that the Court will consider the 

allowance or denial of that contact in the future in reviewing the 

continuing appropriateness of Guardian to serve in that capacity.

Appealed Order p. 3-7. Mother now appeals.3

Discussion and Decision

[6] Mother raises three issues on appeal, which we consolidate and restate as: 1) 

whether the trial court erred by denying her petition to terminate guardianship, 

and 2) whether the trial court erred by concluding that it lacked authority to 

consider and determine parenting time for Mother.

 

3 Guardian has not filed an appellate brief in this case. Accordingly, we may reverse if Mother presents a 

prima facie case of error. In re Riddle, 946 N.E.2d 61, 70 (Ind. Ct. App. 2011). “Prima facie error is error at 

first sight, on first appearance, or on the face of it.” Sand Creek Country Club, Ltd. v. CSO Architects, Inc., 582 

N.E.2d 872, 876 (Ind. Ct. App. 1991) (internal quotation marks and citation omitted).
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I. Petition to Terminate Guardianship

[7] Mother argues that the trial court erred by denying her petition to terminate 

guardianship. Specifically, Mother argues that the evidence showed that she 

was able to care for Child and that Guardian failed to present any evidence to 

the contrary. Mother also contends that the evidence did not support the trial 

court’s findings of fact or conclusions of law.

[8] Indiana Code section 29-3-12-1(c)(4) provides that the trial court may terminate 

any guardianship when the guardianship is no longer necessary. “All findings 

and orders of the trial court in guardianship proceedings are within its 

discretion.” In re Guardianship of Hollenga, 852 N.E.2d 933, 936 (Ind. Ct. App. 

2006) (citing I.C. § 29-3-2-4(a)). We review custody decisions for error, with a 

“preference for granting latitude and deference to our trial judges in family law 

matters.” Matter of Guardianship of I.R., 77 N.E.3d 810, 813 (Ind. Ct. App. 

2017). In determining whether the trial court erred, we review the court’s 

findings and conclusions, which we may not set aside unless they are clearly 

erroneous. Id. We will consider the evidence most favorable to the judgment 

with all reasonable inferences drawn in favor of the judgment, and we will not 

reweigh the evidence nor will we reassess the credibility of witnesses. Id.

[9] Pursuant to Indiana Code section 31-14-13-6, child custody may not be 

modified unless the modification is in the best interests of the child and there is 

a substantial change in one or more of the factors that the court may consider 
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under section 31-14-13-2.

4

 In re Guardianship of L.R.T., 979 N.E.2d 688, 690 

(Ind. Ct. App. 2012). When a parent initiates an action to reobtain custody of a 

child who has been in the custody of another, the burden of proof does not shift 

to the parent, but instead is on the third party. Matter of Guardianship of I.R., 77 

N.E.3d at 813. There is a strong presumption that a child’s interests are best 

served by placement with the natural parent. Id. A parent’s burden to show a 

modification of custody is justified is “minimal,” and after meeting “this 

‘minimal’ burden of persuasion to terminate the guardianship, the third party 

has the burden to prove by clear and convincing evidence that the child’s best 

interests are substantially and significantly served by placement with another.” 

Id. (internal quotation marks and citation omitted).

[10] Mother argues that the trial court erred by finding that it was in Child’s best 

interest for the guardianship to continue in light of four findings of fact that the 

trial court made: that Mother’s medication had helped her, that Mother has a 

support network in place, that family and friends have seen a change in Mother 

and that Mother watches her friend’s grandchildren, and that Mother manages 

her own appointments. 

 

4 Relevant factors include (1) the age and sex of the child, (2) the wishes of the child’s parents, (3) the wishes 

of the child, (4) the interaction and interrelationship of the child with the child’s parents, siblings, and any 

other person who may significantly affect the child’s best interest, (5) the child’s adjustment to home, school, 

and community, (6) the mental and physical health of all individuals involved, (7) evidence of a pattern of 

domestic or family violence by either parent, and (8) evidence that the child has been cared for by a de facto 

custodian.
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[11] Initially, we note that Mother provided an incomplete record that does not 

include Guardian’s petitions for temporary and permanent guardianship. Thus, 

we do not know what prompted Guardian to file her petitions, and we are 

unable to compare Mother’s situation at the time of the October 12, 2017, 

hearing to her situation when the guardianship was ordered. As a result, we are 

unable to discern whether there was a substantial change in one or more of the 

factors that a trial court considers for modification of child custody. In 

addition, Mother’s argument regarding these four findings of fact is a request 

that we reweigh the evidence and reassess the credibility of the witnesses—an 

invitation which we decline.

[12] During the hearing, testimony was elicited that Mother lives with her 

grandparents, is financially dependent on them for her needs, and would be

financially dependent on them for Child’s needs; that Mother’s grandmother 

had asked her twice to leave their home for being disrespectful, for using her 

grandmother’s credit cards without permission, and for using drugs; that 

Mother has been unemployed for nearly two years and that her most recent 

attempt at working ended after one-half day; and that Mother is responsible for 

three recent car accidents, two of which resulted in totaled cars. In other 

words, the evidence showed that Mother’s living situation was not completely 

stable; that Mother was not working on becoming self-sufficient; and that 

Mother was either unable or unwilling to make safe decisions for herself. 

Guardian met her burden to prove by clear and convincing evidence that 
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Child’s best interests are substantially and significantly served by placement 

away from Mother. 

[13] Mother also challenges three of the trial court’s findings of fact and conclusions 

of law. First, she challenges the trial court’s finding of fact that she has not had 

any contact with Child since summer of 2016, arguing that the lack of contact 

between Mother and Child cannot be attributed to Mother. The record 

supports this finding, and we note that the trial court did not attribute it to 

Mother nor did it base its conclusion on this finding. Instead, the trial court 

implicitly acknowledged Guardian’s role in keeping Mother from Child, 

concluding that Mother’s threat to Guardian was not credible and should not 

prevent her from having contact with Child and that Guardian should act to 

remove Child from being a protected party under the protective order.

[14] Mother also challenges the trial court’s conclusion that “Mother expressed 

belief that at the time of the imposition of the original guardianship, she did not 

have a mental health problem or substance abuse problem, instead believing 

[Child] was taken from her because she didn’t have a job.” Appealed Order p. 

6. Mother argues that this conclusion is an error because she believed that the 

guardianship was ordered based on her substance abuse issues and recent arrest. 

During cross-examination, Guardian’s counsel asked Mother about a mental 

health record from March 2, 2017, that reported that Mother presented 

symptoms of substance abuse and appeared to be impaired; Mother denied that 

she had been abusing substances or impaired at that time. Guardian’s counsel 

also asked about a mental health record from September 21, 2016, that stated 
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that Mother had arrived at the treatment center acting suspicious and odd and 

had admitted herself. Mother denied admitting herself for treatment or that she 

had acted suspicious or odd. This testimony supports the trial court’s 

conclusion that Mother believed that she did not have mental health or 

substance abuse problems. 

[15] As to the trial court’s conclusion that Mother believed Child was placed under a 

guardianship because she was unemployed, we agree with Mother that the 

record does not support this conclusion. However, Mother fails to show how 

she was prejudiced by this conclusion or how her belief about why the 

guardianship was ordered affects the outcome of this case. Therefore, Mother’s 

argument on this point is unavailing.

[16] Finally, Mother contests the trial court’s conclusion that her “subsequent arrest, 

[and] lack of acceptance of her history of drug use have limited the progress 

which she has been able to make toward establishing independence despite the 

undoubted improvements that have been witnessed by family and friends.” Id. 

Mother argues that this conclusion is a contradiction that contrasts the findings 

of fact. We see no contradiction. The trial court recognized that although 

Mother had made some improvements in her life, she could have progressed 

even further in establishing self-sufficiency if she had taken responsibility for her 

actions and avoided another arrest and additional drug use. This conclusion is 

easily supported by the findings of fact, which recognized that Mother had 

taken some positive steps in her life but also continued to face real, and often 

self-imposed, obstacles.
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[17] In sum, the trial court did not err by denying Mother’s petition or in its findings 

of fact and conclusions of law. 

II. Parenting Time

[18] Mother next argues that the trial court erred by concluding that it lacked 

statutory or other authority to determine parenting time for Mother.

[19] The issue of whether a trial court has statutory or other authority to determine 

and order parenting time for a parent whose child is placed with a guardian is a 

matter of first impression.5 While no statute explicitly grants trial courts this 

authority in guardianship proceedings, no statute precludes it, either. And 

because our General Assembly has clearly intended for noncustodial parents to 

have parenting time unless it would endanger or impair the physical or mental 

health of the child, we find that a trial court has the authority to determine and 

order parenting time for a parent whose child is placed with a guardian.

[20] The Fourteenth Amendment to the United States Constitution protects the 

traditional right of parents to establish a home and raise their children. Bester v. 

Lake Cty. Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). Our 

society considers the parent-child relationship to be “one of the most valued 

relationships.” Id. (internal quotation marks and citation omitted). The liberty 

 

5 Nonetheless, trial courts have awarded parenting time in this situation. See, e.g., In re B.J.N., 19 N.E.3d 765, 

769-70 (Ind. Ct. App. 2014) (discussing restriction of parenting time and requirement that it be supervised for 

father whose child was placed with a guardian); see also In re Guardianship of A.L.C., 902 N.E.2d 343, 355-58 

(Ind. Ct. App. 2009) (trial court determined that father should have parenting time with child who was 

placed with a guardian because it was in child’s best interests). 
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interest “‘of parents in the care, custody, and control of their children . . . is 

perhaps the oldest of the fundamental liberty interests recognized by this 

Court.’” Perkinson v. Perkinson, 989 N.E.2d 758, 761 (Ind. 2013) (quoting Troxel 

v. Granville, 530 U.S. 57, 65 (2000)). “‘It is cardinal with us that the custody, 

care and nurture of the child reside first in the parents, whose primary function 

and freedom include preparation for obligations the state can neither supply nor 

hinder.’” Id. (quoting Prince v. Massachusetts, 321 U.S. 158, 166 (1944)). Our 

society reflects “‘a strong tradition of parental concern for the nurture and 

upbringing of their children. This primary role of the parents in the upbringing 

of their children is now established beyond debate as an enduring American 

tradition.’” Id. (quoting Wisconsin v. Yoder, 406 U.S. 205, 232 (1972)). 

[21] Our Supreme Court explained that “‘Indiana has long recognized that the right 

of parents to visit their children is a precious privilege that should be enjoyed by 

noncustodial parents,’” and thus a noncustodial parent is “‘generally entitled to 

reasonable visitation rights.’” Id. at 762 (quoting Duncan v. Duncan, 843 N.E.2d 

966, 969 (Ind. Ct. App. 2006)). Indiana Code section 31-17-4-2 provides that 

parenting time rights shall not be restricted unless there is a finding “that the 

parenting time might endanger the child’s physical health or significantly 

impair the child’s emotional development.” Our appellate courts have 

interpreted this statute to require evidence establishing that visitation would

endanger or impair the physical or mental health of the child. Perkinson, 989 

N.E.2d at 763. A trial court is empowered to specify and enforce the visitation 

rights of the noncustodial parent pursuant to Indiana Code. Id. at 762.
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[22] The preamble to the Indiana Parenting Time Guidelines states that the 

Guidelines “are based on the premise that it is usually in a child’s best interest 

to have frequent, meaningful and continuing contact with each parent.” The 

Guidelines further provide that “[a] child has the right both to support and

parenting time . . . .” Ind. Parenting Time Guidelines § I(E)(5). Indiana has a 

“legislatively-expressed presumption in favor of parenting time with the 

noncustodial parent.” Perkinson, 989 N.E.2d at 764. “[N]ot only does a 

noncustodial parent have a presumed right of parenting time, but the child has 

the correlative right to receive parenting time from the noncustodial parent 

because it is presumed to be in the child’s best interest.” Id. “Extraordinary 

circumstances must exist to deny parenting time to a parent, which necessarily 

denies the same to the child.” Id. at 765.

[23] Thus, our General Assembly clearly intended for parents to have parenting 

time, barring exceptional circumstances, when the parent and child do not live 

together. Despite the lack of a statute explicitly addressing parenting time for a 

parent whose child has been placed with a guardian, parenting time for such a 

parent is indisputably within the realm of what our General Assembly

envisioned when considering the rights of a parent and the best interests of the 

child. A trial court that orders parenting time for such a parent is, therefore,

effecting the legislature’s intent. Accordingly, we hold that a trial court has the 

authority to determine whether parenting time is warranted and order

reasonable parenting time for a parent whose child is placed with a guardian. 

In so doing, a trial court must balance a parent’s right to visit his or her child 
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with the best interests of the child. And in ordering parenting time in these 

cases, it would be best practice for a trial court “to make specific findings to 

support its parenting time order.” Perkinson, 989 N.E.2d at 765. 

[24] Here, Mother has clearly expressed a desire to be part of Child’s life. At the 

time of the October 12, 2017, hearing, she had not seen Child since July 2016. 

Regarding Mother’s request for parenting time, the trial court simply accepted

Guardian’s opinion as to whether Mother should be able to see Child.

6

 And in 

its order, the trial court ordered Guardian to “take all steps necessary to remove 

the child from being a protected party so as to permit contact or visitation” and 

stated that it would consider “the continued lack of contact with mother” when 

reviewing the continuing appropriateness of Guardian to serve as the guardian 

in the future. Appealed Order p. 6-7. In other words, the trial court allowed a 

partial third party to decide whether and how much Mother should be able to 

enjoy her constitutionally-protected “‘precious privilege’” and right to visit her 

child. Perkinson, 989 N.E.2d at 762 (quoting Duncan, 843 N.E.2d at 969)).

[25] We find that the trial court erred. First, for the reasons discussed above, we 

find that the trial court erred by not considering Mother’s request for parenting 

time or determining whether and how much parenting time was appropriate. 

Second, we find that the trial court erred by deferring to Guardian’s judgment

 

6 During the hearing, the trial court asked Guardian under what circumstances she thought it would be 

appropriate for Mother and Child to visit; Guardian’s counsel then asked Guardian what Mother would need 

to do to obtain visitation or terminate the guardianship.
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about Mother’s parenting time. We simply do not understand why the trial 

court would defer to Guardian, a person with a subjective perspective and 

invested stake in the matter, about Mother’s constitutionally-protected right to 

see her son. Guardian, having disregarded Mother’s position as Child’s mother 

and Mother’s wishes to see Child, had already prevented Mother from seeing 

Child for well over a year for a reason that the trial court concluded was 

unfounded. And still the trial court left future parenting time to Guardian’s 

discretion, thereby potentially further depriving Mother and Child of time 

together and an opportunity to develop a meaningful relationship and bond. 

[26] We cannot state strongly enough that a trial court should not allow a third party 

alone to determine a parent’s parenting time with his or her child during 

guardianship proceedings. If parties cannot agree on their own to a plan that is 

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

developing one. See Ind. Parenting Time Guidelines § II(A) (“When the parties 

cannot reach an agreement on a parenting plan, the specific provisions which 

follow are designed to assist parents and the court in the development of a 

parenting plan. They represent the minimum recommended time a parent 

should have to maintain frequent, meaningful, and continuing contact with a 

child”) (emphasis added). We reverse the trial court’s order that it cannot 

determine parenting time for Mother and remand for further proceedings 

consistent with this opinion.
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[27] The judgment of the trial court is affirmed in part, reversed in part, and 

remanded for further proceedings.

Kirsch, J., and Bradford, J., concur.