Court of Appeals of Indiana | Memorandum Decision 39A01-1512-GU-2289 | October 14, 2016 Page 1 of 31

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

Mary Beth Mock

Law Office of Mary Beth Mock

Madison, Indiana

ATTORNEY FOR APPELLEES

Jason J. Pattison

Jenner, Pattison, Sutter & Wynn, 

LLP

Madison, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

In the Guardianship of S.S. and 

J.N., Minor Children,

Marla New,

Appellant-Respondent,

v.

Kenneth Scrogham and Teresa 

Scrogham,

Appellees-Petitioners.

October 14, 2016

Court of Appeals Case No.

39A01-1512-GU-2289

Appeal from the Jefferson Circuit 

Court

The Honorable Darrell M. Auxier, 

Judge

Trial Court Cause No.

39C01-1405-GU-23

Brown, Judge.
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[1] Marla New (“Mother”) appeals the trial court’s order granting the petition for 

guardianship of her daughter, S.S., filed by S.S.’s paternal grandfather Kenneth

Scrogham and his wife Teresa (collectively, the “Scroghams”) and the denial of 

her motion to correct error. Mother raises four issues which we consolidate and 

restate as whether the court abused its discretion in granting the petition for 

guardianship. We affirm.

Facts and Procedural History

[2] Mother and Robert Scrogham are the biological parents of S.S., born February 

22, 2004.1 Mother and Brent Hammons are the biological parents of J.N., born 

May 25, 2005. 

[3] At some point, there were allegations that Mother had individuals staying at her 

home, that there was some sort of argument between one of those individuals 

and S.S., that someone pushed S.S., and that this person was still residing in the 

home. On April 22, 2014, Mother told Family Case Manager Dosha Campbell

(“FCM Campbell”) that her niece and her niece’s boyfriend, Derrick Gotts, had 

been staying there “on and off,” that Gotts pushed S.S., and that as soon as 

Mother found out about it she made her niece and Gotts leave the home

because they had “the evil spirits.” Transcript at 14-15. Mother made some 

“odd statements” regarding evil spirits and demons and said that she “would 

 

1 At the May 13, 2014 hearing, the Scroghams’ attorney indicated that he had a waiver and notice of hearing 

and consent to guardianship signed by Robert Scrogham. At the time of the December 2, 2014 hearing, 

Robert Scrogham was incarcerated. 
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tell S.S. to get on the right of her because that’s where the good spirits were 

were on the right.” Id. at 15. 

[4] The next day, FCM Campbell went back to Mother’s home, and Mother said 

that she was going to church, made a comment that “the Calvary was coming 

behind her,” she “just seemed really happy,” and she talked about going to the 

ocean and washing the demons away from her. Id. at 16. FCM Campbell did 

not think that Mother was necessarily under the influence of anything, but 

“thought that things were just odd, maybe more in the mental health issue.” Id.

at 18. FCM Campbell performed a drug screen, and it was positive for 

marijuana. 

[5] That same day, Pastor Peter A. Joudry, the lead pastor of Madison Assembly of 

God, was praying publicly when Mother, who had attended the church a few 

times and had been a part of a Bible study, came down the aisle with some 

feathers, shells, leaves, spice, and a package of cigarettes. Mother was dressed 

in “cowboy, western, maybe Indian dress” and was walking directly toward 

Pastor Joudry who stepped to the side. Id. at 7. Mother then walked by him, 

went onto the platform, sat cross-legged, and placed the items in front of her. 

Pastor Joudry asked her what she was doing, and Mother said that the devil 

was on the left and God was on the right and that she could prove it biblically. 

Pastor Joudry eventually asked Mother to take her seat, and Mother left the 

items on the platform and took a seat. Mother’s back was turned to Pastor 

Joudry and it “seemed like she might have been doing some --- maybe some 

ritual thing or bowing or whatever.” Id. at 8. Pastor Mia Tran eventually came 
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and escorted Mother into the lobby and Pastor Joudry “discerned at the time 

that . . . there may be some psychological issues . . . .” Id. at 9.

[6] On April 24, 2014, City of Madison Police Officer Brandon Decker was 

dispatched to Mother’s townhouse regarding a “juvenile problem” around 9:00 

p.m. after the neighbors called the police. Id. at 21. As he arrived, Officer 

Decker could hear screaming and it “sounded like a woman and children.” Id. 

Officer Decker drew his service weapon, announced his presence, knocked, and 

entered the residence through an unlocked door. The lights of the residence 

were off, Officer Decker illuminated the room with his service pistol’s mounted 

flashlight, and Mother calmly invited him inside. 

[7] Officer Decker observed S.S. and J.N. sitting on the couch, and they “seemed 

to be plastered against the couch very fearful of the situation that was going 

on.” Id. at 22-23. He asked if there was someone else in the residence, and 

Mother stated that she was “ridding the house of evils.” Id. at 23. The children 

then became “extremely upset” and burst out in tears and were crying louder, 

and Officer Decker turned on the lights. Id. He observed that the children were 

not wearing shoes or socks and that there was a “glass casserole-type server at 

their feet full of water” sitting on a towel. Id. He found that “odd” and went to 

speak with Mother in the kitchen. Id. 

[8] Mother told Officer Decker that “they were ridding the house of evils,” and he

asked her if she was on any type of medication because he could “kind of tell 

she was at an abnormal state-of-mind.” Id. Mother told him that she was not 
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on medication, but said: “I smoked pot earlier today, but that was years ago.” 

Id. at 24. Officer Decker noticed that there were trash bags containing school 

books, clothes, and an appliance, and that Mother had thrown away one shoe 

out of each pair of the children’s shoes. Mother said that she was going to ride 

her pony to South Carolina to marry her Indian husband. 

[9] Officer Decker asked the children about the pan of water, and they became 

upset and said that Mother had been repeatedly washing their feet and that 

Mother’s “activity was scaring them.” Id. at 25. Medical personnel arrived and 

took Mother to the hospital for a mental evaluation. The children were 

released to Kenneth Scrogham who was called to the scene. 

[10] Family Case Manager Cynthia Adams (“FCM Adams”) went to the scene and 

observed that the children were scared and crying. S.S. led FCM Adams to the 

kitchen to show her some of Mother’s writings in four or five notebooks that 

contained “a lot of erratic-looking kind of writings, spiritual stuff . . . .” Id. at 

32. FCM Adams did not “go through all the stuff, but there was apparently one 

of [S.S.’s] books that had a butterfly or something on it that [Mother] thought 

was evil and tore her text book up.” Id. at 33. Mother spent the night at the 

hospital and then went to Clark County Behavioral Health where she stayed for 

eleven days. 

[11] On May 5, 2014, Family Case Manager Daniel Hoffman (“FCM Hoffman”) 

was contacted by someone who stated that the children had exited the bus or 

that Mother had taken the children off the bus and there were some concerns 
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about whether or not the children should be with Mother. FCM Hoffman 

arrived at Mother’s house and spoke with her. Mother said that she had left the 

hospital at 11:00, that people do not understand her spiritual side, and that she 

can see things that other people cannot see. Mother was a “bit erratic” and was 

speaking “kind of fast,” and “it was hard to kind of follow what she was 

saying.” Id. at 48. The children seemed nervous. The principal from the 

children’s school arrived and talked to Mother while FCM Hoffman took S.S. 

outside the home and spoke to her. S.S. broke down in tears and said that she 

was scared to be there, was “afraid this is all going to happen again,” and that 

she thought that her Mother needed help. Id. at 47. FCM Hoffman felt 

uncomfortable for the children to be there. The principal exited the residence 

and indicated that she had talked with Mother and they had decided for the 

children to go with the grandparents. 

[12] On May 7, 2014, the Scroghams filed a Petition for Appointment of Temporary 

Co-Guardians Over Persons and Estates of Minor.2 On May 13, 2014, the 

court held a hearing on the petition. Pastor Joudry, FCM Campbell, Officer 

Decker, FCM Adams, Teresa Scrogham, and Mother testified. 

[13] Mother testified that she was unemployed, received social security disability for 

agoraphobia, did not have a fiancé, and told people that she had an Indian 

fiancé because she feels like “there is someone for me out there and that he will 

 

2 The record does not contain a copy of the petition.
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come, and I won’t be alone to raise the kids all by myself anymore.” Id. at 35. 

She testified that she is an Indian and that “[w]e rode our ponies out west and 

then we rode the iron horses back.” Id. When asked why she was washing her 

children’s feet, she stated that she was washing dirt off their feet and that it 

calmed them down. She said that J.N. was struggling and screaming and she 

may have raised her voice, and that she smokes marijuana “daily if I can.” Id.

at 36. She testified that she went to the church that day to let them know that 

she knows there is a God, she denied hearing voices or having hallucinations, 

and indicated that she was going to follow up with mental health counseling. 

She testified that she had a car but did not have a driver’s license because she 

was working on paying some fines. 

[14] Teresa testified that J.N. is not biologically related to her or Kenneth but that he 

has always known them as “ma-maw” and “pa-paw.” Id. at 50. Teresa 

testified that S.S. lived with them in 2006 for about seven months and that there 

were other periods of time a couple of weeks here and there when Mother 

called them and said that she was out of food or that her electricity was turned 

off and asked them to take S.S. for a while so that S.S. “wouldn’t be without.” 

Id. at 52. 

[15] At the end of the hearing, Mother testified: “I understand what you all are 

trying to do, and I’m so glad you’re trying to help, and if the Judge feels like 

they need to stay with you a little longer that’s fine with me.” Id. at 61. The

court granted a temporary guardianship. 
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[16] On August 7, 2014, the Scroghams filed a Petition for Appointment of CoGuardians Over Persons and Estates of Minors.3

 On September 25, 2014, J.N. 

was returned to Mother following allegations by three of the Scroghams’ young 

grandsons of acts between them and J.N. On November 17, 2014, the court 

entered an Agreed Order to Terminate Temporary Guardianship of J.N. and to 

Dismiss Petition for Permanent Guardianship Concerning J.N.4 

[17] On December 2, 2014, the court held a hearing. Mother testified that she did 

not consider marijuana a drug, that she last smoked marijuana “probably---a 

month ago,” and that she smokes it “occasionally” or “[o]nce a week, twice a 

week.” Id. at 103. She stated that after being released from Clark County 

Behavioral Health, she was given Prozac and Zyprexa for depression and 

anxiety, took them for maybe a week, and then stopped taking them because 

she “just didn’t feel right” and “[t]hey just weren’t for” her. Id. at 109. She 

indicated that she followed up with Centerstone and had an initial therapy 

session on November 29, 2014, and then one other therapy session. She 

testified that she tried to contact Lifesprings, but they said she needed a referral. 

She also testified that she tried to contact DCS, but they said that they did not 

have a case on her so they could not refer her. She again denied having 

 

3 The record does not contain a copy of the petition.

4 The record does not contain a copy of the agreed order. 
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delusions and when asked about what occurred at the church on April 23, 2014, 

with the “Indian ritual,” she answered:

I wouldn’t call it an Indian ritual, but the best way to describe 

that is I felt like I needed to go over there, and that’s the place 

you take things that you don’t want on you anymore, and I had a 

spiritual experience then. I took them over there and uh---

exercised [sic] some demons if you---that’s what happened.

Id. at 111. With respect to the washing of her children’s feet, Mother testified 

that the “children’s pastor of the church told me that when they get upset and 

they’re tired, she said, ‘Put water and oil on their feet and massage their feet, 

and it calms them down.’” Id. at 112. She also testified that she receives food 

stamps and that the children receive Medicaid. The court ordered that the 

temporary guardianship continue for the next ninety days. 

[18] On June 25, 2015, the court held another hearing. Mother testified that she had 

been unemployed since 2010 and received disability for “[a]goraphobia and 

panic and anxiety.” Id. at 274. She stated that she was diagnosed with PTSD 

and that her Centerstone records showed a long history of a bipolar diagnosis, 

but that she did not believe that she is bipolar. She testified that she first saw a 

mental health provider after she was struck from behind while riding a moped 

in 2010. She again denied ever having hallucinations or delusions, but 

conceded that her Centerstone records indicated that she had. She indicated

that Clark County Behavioral Health discharged her after an eleven-day inpatient stay following the April 2014 incident and that they told her to follow 

up with her local community mental health provider, but she did not 
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immediately do so. She was discharged with two medications, Prozac and 

Zyprexa. She stated that she then did not receive any mental health treatment 

until she received an evaluation in November 2014 from Centerstone, that she 

agreed with the records indicating that she had been there eight times since 

then, and that she missed one appointment but did not recall why. She also 

testified that she was currently on Paxil and Trazadone, that if S.S. was 

returned to her, she would continue to seek mental health treatment, and that 

she had not used marijuana since January 2015. 

[19] She testified that she still did not have a driver’s license and had only twentyfive dollars left to pay before she could be reinstated in Indiana and also 

acknowledged that her driving record indicates that she has at least $375 in 

reinstatement fees.5 She also acknowledged that she had thrown away a 

working PlayStation. 

[20] Guardian ad litem Marita J. Berry (“GAL Berry”) testified that she was first 

assigned the case in August 2014. When asked what was in S.S.’s best interest, 

GAL Berry testified that S.S. does much better with her grandparents and that 

S.S. has never wavered in her statement that she is afraid of the things Mother 

does and is still afraid to be at her Mother’s home. As for J.N., GAL Berry 

testified that she last saw him a week earlier, that he was clean, seemed to be 

 

5 Mother stated: “after I pay the 25-dollar fine I’ll be eligible to be reinstated. You have to pay the 25 before 

you can get started on the 380.” Transcript at 306. She later stated: “Once the 25 dollars is paid over here---

or, no, that doesn’t even apply.” Id.
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doing fine, and was happy to be with Mother. When asked about whether 

Mother was going to physically harm S.S., GAL Berry stated that “S.S. has told 

me every single time that [Mother] flies into a rage, she beats her chest, she 

screams, and that terrifies S.S. Now that’s not physical, but that’s certainly 

emotional abuse, and that is in my report.” Id. at 326. 

[21] After the Scroghams rested, Mother testified that she identified as being a 

Native American member of the Miami tribe, that she practiced a mixture 

between Native American spirituality and Christianity, that she believed in the 

Bible, God, the devil, and demons, and explained the purpose of tobacco and 

sage in Native American culture.

[22] On October 29, 2015, the court granted the petition for guardianship and 

ordered that Mother have parenting time with S.S. pursuant to the Indiana 

Parenting Time Guidelines in a very detailed, nineteen-page order which states 

in part:

FINDINGS OF FACT

* * * * *

17. On April 24, 2014, Brandon Decker, a Madison Police 

Department officer, was dispatched to Mother’s home in 

response to a disturbance call. Upon arriving he could hear 

screaming coming from a downstairs open window of Mother’s 

home. The screaming was so loud that he could hear it while 

still seated in his patrol car. Decker knocked and announced his 

presence but received no response. He then made entry into the 

home and discovered Mother, S.S. and J.N. in the living room. 
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The children were the source of the screaming. Both children 

appeared to be very fearful and “plastered” to the couch. Decker 

asked Mother what was going on and she replied that she was 

ridding the house of evil. The children then got extremely upset 

and began crying. Decker observed that the children did not 

have shoes and socks on and that there was a pan of water and a 

towel on the couch. Mother did not seem normal and Decker 

asked her if she was on medication. She replied that she had 

smoked marijuana earlier that day but that was years ago. She 

told Decker that she was removing all evil items from the house. 

There were garbage bags filled with belongings in the home. 

Textbooks, toys, medicine, and a playstation were some of the 

items being thrown away. One shoe out of every pair was 

thrown away and shoelaces were thrown away because they were 

evil. Mother later testified that the kids were screaming because 

she was throwing away their toys and that she could do this 

because she bought the toys. She also testified that she threw the 

playstation away because the kids were always fighting over it. 

The Court concludes that Mother was throwing away the items 

under the delusional belief that they were evil. Mother also 

informed Decker that she was going to ride a pony to South 

Carolina to marry her husband.

* * * * *

20. On April 24, 2014, after the incidents observed by Officer 

Decker, Mother was admitted to Clark County Behavioral 

Health for 11 days. In Mother’s words she was “overwhelmed” 

with life in general. She was released from Clark County 

Behavioral Health with instructions to follow up with a local 

mental health provider for therapy and prescriptions for 

medication. Mother had been prescribed Prozac and two other 

drugs but she stopped taking them without a doctor’s approval.

21. Mother then went to Centerstone, a mental health center, for 

counseling for PTSD and anxiety. She had attended eight 
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appointments as of the time of the last hearing. She has made 

some progress towards her goals of not yelling and screaming 

and being better able to interact with her children. Marita Berry, 

the GAL, who has been actively involved in this case for 

approximately 10 months, has observed no significant changes in 

Mother’s situation.

22. Mother suffers from Bipolar II disorder, cannabis use 

disorder, panic disorder, and posttraumatic stress disorder. She 

also suffers from agoraphobia which makes it difficult for her to 

leave her house. She is frequently stressed, restless, easily 

distracted, sometimes depressed, moody, and fearful. She angers 

easily and has frequent arguments with others. As noted by her 

therapist on November 5, 2014, she has a history of manic phases 

becoming psychotic with very odd behaviors and of non 

compliance with medication.

23. On the date Mother was released from Clark County 

Behavioral Health, she was visited by DCS caseworker, Dan 

Hoffman. Mother told him she could see things other people 

couldn’t see. He talked to the children alone and S.S. told him 

she was scared to be there and thought Mother needed help.

24. In the 2013-2014 school year, when the children were living 

[w]ith Mother, S.S. missed 22 and J.N. missed 18 days of school. 

The absences were due to Mother not getting them up in time to 

catch the school bus. During the 2013-2014 school year S.S. was 

very emotional; had a hard time making and keeping friends; got 

into arguments with other students easily; and despite being a 

diligent student, her homework completion was sporadic. 

During the 2014-2015 school year, when she was residing with 

the Scroghams, S.S. only missed 2 to 3 days of school. Her 

grades were better; she was more stable emotionally; and she was 

making and keeping friends much easier. She was involved in 

activities and her maturity level increased a lot.
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25. S.S. is adamant that she wants to continue living with the 

Scroghams. She feels unsafe when living with Mother and does 

not like the screaming and cursing that goes on there. She has 

threatened to run away if she is returned to Mother’s care. She is 

also afraid of Mother’s behavior concerning Indian rituals. As of 

January 26, 2015, Mother had started to do the “Indian thing” 

again. Mother maintains that S.S. shouldn’t be afraid when 

Mother talks about her Indian stuff. During S.S.’s visits with 

Mother, J.N. gets into S.S.’s face and yells motherf_cker. S.S. 

asks Mother to make him stop. Mother laughs and tells J.N. to 

stop but he doesn’t. S.S. can’t sleep well at Mother’s home and 

she has bad dreams. Mother has told S.S. not to tell anyone 

what happens when she is there for a visit. S.S. is emotional, 

upset, and cries sometimes after her visits with Mother. 

26. Mother has inappropriately discussed the instant case with 

S.S. Mother sat her in a chair and made her read the guardian ad 

litem’s report while Mother thumped her chest and swore. 

Mother made S.S. agree that she wanted to come back and live 

with her before she could get up out of the chair. S.S. started 

agreeing with her so she would stop yelling at her.

27. Mother is consumed with hate for the Scroghams. She has 

repeatedly made negative comments about them to and in the 

presence of S.S. Mother constantly screams about the 

Scroghams and calls them terrible names. S.S. asked Mother to 

stop calling the Scroghams names but Mother replied, “It’s 

impossible to not talk about what they are doing”. Mother has 

also been angry, belligerent, and threatening to the Scroghams 

during many of the visitation exchanges, all of which occurred in 

front of S.S.

28. Mother exhibits poor anger control and has a history of 

screaming and cursing at the children. Despite therapy to 

address the same, her behavior has only been somewhat better.
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29. S.S. has a strong bond with the Scroghams. Despite this 

bond, it is Mother’s intention to move to Kentucky and to not 

allow the Scroghams to see S.S. in the event that she regains 

custody.

30. Mother has taken several other inappropriate and 

irresponsible actions such as the following:

(a) Mother has allowed homeless persons to reside in the 

home with the children;

(b) Mother has had S.S. use her own money to buy 

cigarettes from a neighbor;

(c) During a home visit, Mother took the children to Wal 

Mart at 1:00 a.m. to get cigarettes. She accepted a ride 

home with a stranger. The children were afraid because 

Mother did not know the man;

(d) At the start of this action Mother smoked marijuana 

on a daily basis. While she may have ceased use since, she 

still maintains that marijuana is not an illegal drug but is 

rather a medicinal substance; and 

(e) Mother smokes in the home when S.S. is present 

despite the fact that the smoke makes it difficult for S.S. to 

breathe.

31. J.N. was nine years old when the temporary guardianship 

was granted. Mother had never taken J.N. to a dentist. J.N. had 

extensive dental work done while living with the Scroghams.

32. J.N. expressed his desire that he live with his mother citing 

as a reason that the Scroghams had too many rules. He was 
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placed back in Mother’s care in mid-November of 2014. As of 

December 12, 2014, Mother was having difficulty parenting J.N.

33. Kenneth and Teresa Scrogham have been married for twenty 

nine years and have lived in the same home during their entire 

marriage. Teresa works second shift as a human resource 

specialist. She has been consistently employed for more than two 

decades. Kenneth is disabled and serves as a stay at home mom 

for his four grandchildren. Neither of the Scroghams have a 

criminal history, mental health issues, or substance abuse issues.

34. The Scroghams have been actively involved in S.S.’s life 

since her birth. They have regularly celebrated holidays and 

birthdays with S.S. and have taken her to church. On several 

occasions, S.S. has stayed with them for several weeks due to 

Mother having no food or no electricity. On one occasion, S.S. 

lived with them approximately six months due to Mother having 

no electricity. When S.S. was living with Mother, Mother would 

frequently call Teresa for assistance with disciplining the 

children. Teresa would discipline the children over the 

telephone. [Mother] commented that “these kids are driving me 

crazy”.

35. S.S. is thriving while living with the Scroghams. She has 

structure and boundaries in the home. She has chores to do and 

enjoys being responsible. Her school attendance has improved 

dramatically and she is making excellent grades. She is more 

stable emotionally and is making and keeping friends much 

easier than she did while residing with Mother. She feels safe 

living with the Scroghams and she is adamant that she wants to 

continue to live with them.

DISCUSSION AND CONCLUSIONS OF LAW

* * * * *
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38. Before placing a child in the custody of a person other than 

the natural parent, a trial court must be satisfied by clear and 

convincing evidence that the best interests of the child require 

such a placement. Id[.]

39. The trial court must be convinced that placement with a 

person other than the natural parent represents a substantial and 

significant advantage to the child. The presumption will not be 

overcome merely because a third party could provide the better 

things in life for the child. Id[.]

* * * * * 

41. In the present case, the strong and important presumption 

that S.S.’s interests are best served with placement with Mother 

has been clearly and convincingly overcome by the facts set forth 

above and S.S.’s best interests are substantially and significantly 

served by placement with the Scroghams.

42. Such facts are more fully discussed as follows:

(a) Mother lacks the ability to appropriately discipline S.S. 

In the past, she has had to turn to Teresa Scrogham for 

assistance in disciplining the children. Presently, her 

method of discipline is to yell and curse at the children. 

Little improvement has occurred despite the fact Mother 

has been in therapy. This is hardly surprising since 

Mother has a history of angering easily and having 

frequent arguments with others. It is not in S.S.’s best 

interests to be exposed to Mother’s yelling and cursing.

(b) Mother has placed S.S. in the middle of this 

controversy and has inappropriately attempted to influence 

S.S. Mother forced S.S. to read the guardian ad litem’s 
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report. While S.S. was reading the report, Mother 

screamed and cried that the report was a lie; accused S.S. 

of lying to the GAL; and stated that she thought S.S. hated 

her. She sat S.S. in a chair and made her agree that she 

wanted to come back and live with her before she could 

get up out of the chair. The above actions evidence 

extremely poor judgment on Mother’s part. Mother either

does not understand the harmful effects of her behavior on 

S.S. or, if she does understand, does not care.

(c) Mother has inappropriately disparaged the Scroghams 

in the presence of S.S. S.S. is very attached to the 

Scroghams and does not want or need to hear Mother’s 

negative comments. She has asked Mother to stop making 

such remarks but Mother persists and finds it impossible to 

not talk about what the Scroghams are doing. Mother has 

also been angry, belligerent, and threatening to the 

Scroghams during many of the visitation exchanges, all of 

which occurred in the presence of S.S. Here again, 

Mother has engaged in inappropriate behavior which is 

harmful to S.S. Lastly, it is Mother’s intention that S.S. 

will never see the Scroghams again if S.S. is placed in her 

custody. The Scroghams have played an important role in 

S.S.’s life and S.S. has a strong bond with the Scroghams. 

It would not be in S.S.’s best interest to sever such bond.

(d) Mother may very well be of Indian heritage. She has, 

however, demonstrated delusional thoughts in connection 

therewith. Despite her statements to the contrary, Mother 

does not have an Indian husband waiting for her in South 

Carolina. Mother has also attributed evil properties to the 

children’s belongings and took steps to throw the 

belongings away to rid her home of evil. The children 

were frightened by Mother’s behavior. The issue here is 

not whether Mother’s Indian heritage and her actions in 

connection therewith are legitimate exercises of religion 
Court of Appeals of Indiana | Memorandum Decision 39A01-1512-GU-2289 | October 14, 2016 Page 19 of 31

but rather what effect the same have on S.S. S.S. and J.N. 

were obviously very frightened by Mother’s excessive 

washing of their feet. Mother maintains that she was 

doing so in order to comfort the children but Mother 

lacked the insight to see that her actions were actually 

upsetting the children rather than calming them. Despite 

the fact that S.S. is afraid of Mother’s Indian rituals, 

Mother started the “Indian” stuff again in early 2015. She 

sees no reason that S.S. would be afraid of her talking 

about her Indian stuff.

* * * * * 

44. The presumption that it is in the best interests of S.S. to be in 

the custody of Mother is further overcome by the fact that S.S. is 

afraid of going back to live with Mother. She does not like the 

screaming and cursing that goes on in Mother’s home and she is 

afraid of Mother’s Indian rituals. She cannot sleep well at 

Mother’s home and she has bad dreams. S.S. is emotional, 

upset, and often cries after her visits with Mother.

45. The Scroghams have established, by clear and convincing 

evidence, that S.S.’s best interests are substantially and 

significantly served by placement with the Scroghams. The 

Scroghams have been actively involved in S.S.’s life since her 

birth. S.S. has a strong bond with the Scroghams and is thriving 

in their care. She has structure and boundaries in the home. She 

has chores to do and enjoys being responsible. Her school 

attendance has improved dramatically. Her grades have also 

improved. She is more stable emotionally and she is making and 

keeping friends much easier. 

Appellant’s Appendix at 13-28.
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[23] On November 20, 2015, Mother filed a motion to correct errors, which the 

court denied. 

Discussion

[24] The issue is whether the trial court abused its discretion in granting the petition 

for guardianship. “All findings and orders of the trial court in guardianship 

proceedings are within the trial court’s discretion.” In re Guardianship of J.K., 

862 N.E.2d 686, 690 (Ind. Ct. App. 2007) (citing Ind. Code § 29-3-2-4). Thus, 

we will review those findings under an abuse of discretion standard. Id.; see also 

In re Guardianship of B.H., 770 N.E.2d 283, 288 (Ind. 2002) (“Child custody 

determinations fall squarely within the discretion of the trial court and will not 

be disturbed except for an abuse of discretion.”), reh’g denied. In determining 

whether the trial court abused its discretion, we look to the trial court’s findings 

of fact and conclusions thereon. We may not set aside the findings or judgment 

unless they are clearly erroneous. Menard, Inc. v. Dage-MTI, Inc., 726 N.E.2d 

1206, 1210 (Ind. 2000), reh’g denied. In our review, we first consider whether 

the evidence supports the factual findings. Id. Second, we consider whether the 

findings support the judgment. Id. “Findings are clearly erroneous only when 

the record contains no facts to support them either directly or by inference.” 

Quillen v. Quillen, 671 N.E.2d 98, 102 (Ind. 1996). A judgment is clearly 

erroneous if it relies on an incorrect legal standard. Menard, 726 N.E.2d at 

1210. We give due regard to the trial court’s ability to assess the credibility of 

witnesses. Id. While we defer substantially to findings of fact, we do not do so 

to conclusions of law. Id. We do not reweigh the evidence; rather we consider 
Court of Appeals of Indiana | Memorandum Decision 39A01-1512-GU-2289 | October 14, 2016 Page 21 of 31

the evidence most favorable to the judgment with all reasonable inferences 

drawn in favor of the judgment. Yoon v. Yoon, 711 N.E.2d 1265, 1268 (Ind.

1999); see also B.H., 770 N.E.2d at 288.

[25] Ind. Code § 29-3-5-1 provides that “[a]ny person may file a petition for the 

appointment of a person to serve as guardian for [a] . . . minor under this 

chapter or to have a protective order issued under IC 29-3-4.” Ind. Code § 29-3-

5-3 provides:

(a) Except under subsection (c), if it is alleged and the court finds 

that:

(1) the individual for whom the guardian is sought is . . . a 

minor; and

(2) the appointment of a guardian is necessary as a means 

of providing care and supervision of the physical person or 

property of the . . . minor;

the court shall appoint a guardian under this chapter.

* * * * *

(c) If the court finds that it is not in the best interests of the . . . 

minor to appoint a guardian, the court may:

(1) treat the petition as one for a protective order and 

proceed accordingly;

(2) enter any other appropriate order; or
Court of Appeals of Indiana | Memorandum Decision 39A01-1512-GU-2289 | October 14, 2016 Page 22 of 31

(3) dismiss the proceedings.

[26] “Indiana courts have long held that ‘[e]ven when a parent initiates an action to 

reobtain custody of a child that has been in the custody of another, the burden 

of proof does not shift to the parent . . . [r]ather, the burden of proof is always 

on the third party.’” In re K.I., 903 N.E.2d 453, 460 (Ind. 2009) (quoting J.K., 

862 N.E.2d at 692). We have previously recognized that a reason for placing

the burden on the third party is to encourage parents who are experiencing 

difficulties raising children to take advantage of an available safety net such as a 

grandparent who is willing to accept temporary custody of a child. J.K., 862 

N.E.2d at 692 n.2 (citing In re Guardianship of L.L., 745 N.E.2d 222, 233 (Ind. 

Ct. App. 2001), trans. denied).

[27] The Indiana Supreme Court has previously held:

[B]efore placing a child in the custody of a person other than the 

natural parent, a trial court must be satisfied by clear and 

convincing evidence that the best interests of the child require 

such a placement. The trial court must be convinced that 

placement with a person other than the natural parent represents 

a substantial and significant advantage to the child. The 

presumption will not be overcome merely because “a third party 

could provide the better things in life for the child.” In a 

proceeding to determine whether to place a child with a person 

other than the natural parent, evidence establishing the natural 

parent’s unfitness or acquiescence, or demonstrating that a strong 

emotional bond has formed between the child and the third 

person, would of course be important, but the trial court is not 

limited to these criteria. The issue is not merely the “fault” of the 

natural parent. Rather, it is whether the important and strong 

presumption that a child’s interests are best served by placement 
Court of Appeals of Indiana | Memorandum Decision 39A01-1512-GU-2289 | October 14, 2016 Page 23 of 31

with the natural parent is clearly and convincingly overcome by 

evidence proving that the child’s best interests are substantially 

and significantly served by placement with another person.

K.I., 903 N.E.2d at 458 (quoting B.H., 770 N.E.2d at 287 (citations omitted)).

[28] Mother argues that: (A) her due process rights were violated; and (B) there was 

insufficient evidence to grant the petition and the court failed to find that the 

guardianship was necessary.

A. Due Process

[29] Mother argues that the United States Supreme Court’s decision in Troxel v. 

Granville, 530 U.S. 57, 120 S. Ct. 2054 (2000), and the Fourteenth Amendment 

are incompatible with the Indiana line of cases allowing the presumption that a 

parent is acting in the best interest of the child to be overcome solely based on 

the child’s best interests. She also argues that Indiana’s reliance on the 

significant and substantial best interests of the child in lieu of a showing of 

unfitness, abandonment, or long acquiescence violates a parent’s Due Process 

rights under the Fourteenth Amendment to the United States Constitution. 

The Scroghams argue that Indiana’s approach to the standard necessary to 

implement a guardianship is above and beyond that necessary to satisfy due

process. 

[30] In Troxel, Tommie Granville, the mother of two children, opposed a petition for 

visitation filed by the paternal grandparents of the children. 530 U.S. at 60, 120 

S. Ct. at 2057. The Court addressed a Washington statute that provided: “Any 
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person may petition the court for visitation rights at any time including, but not 

limited to, custody proceedings. The court may order visitation rights for any 

person when visitation may serve the best interest of the child whether or not 

there has been any change of circumstances.”6 Id. at 61, 120 S. Ct. at 2057-

2058. The Court was asked to decide whether the statute as applied to a mother 

and her family violated the Federal Constitution. Id. at 65, 120 S. Ct. at 2059. 

[31] The plurality noted that the Fourteenth Amendment provides that no State 

shall deprive any person of life, liberty, or property, without due process of law, 

that the Clause guarantees more than fair process, and that the Clause also 

includes a substantive component that provides heightened protection against 

government interference with certain fundamental rights and liberty interests. 

Id. at 65, 120 S. Ct. at 2059-2060. 

[32] The plurality held that the Washington nonparental visitation statute was 

“breathtakingly broad,” that the statute’s language “effectively permits any 

third party seeking visitation to subject any decision by a parent concerning 

visitation of the parent’s children to state-court review,” and that “[o]nce the 

visitation petition has been filed in court and the matter is placed before a judge, 

a parent’s decision that visitation would not be in the child’s best interest is 

accorded no deference.” Id. at 67, 120 S. Ct. at 2061. The plurality concluded 

that the Washington Superior Court “failed to accord the determination of 

 

6

Justice O’Connor announced the judgment of the Court and delivered the opinion, in which Chief Justice 

Rehnquist, Justice Ginsburg, and Justice Breyer joined. 530 U.S. at 60, 120 S. Ct. at 2057.
Court of Appeals of Indiana | Memorandum Decision 39A01-1512-GU-2289 | October 14, 2016 Page 25 of 31

Granville, a fit custodial parent, any material weight” and that the statute, as 

applied, was unconstitutional. Id. at 72, 120 S. Ct. at 2063.

[33] Here, we cannot say that the Indiana statute is “breathtakingly broad.” The 

“the best interest standard is applicable in guardianship cases involving custody 

of a minor.” E.N. ex rel. Nesbitt v. Rising Sun-Ohio Cnty. Cmty. Sch. Corp., 720 

N.E.2d 447, 451 (Ind. Ct. App. 1999), reh’g denied, trans. denied; see also Ind. 

Code § 29-3-5-3(c) (“If the court finds that it is not in the best interests of the . . . 

minor to appoint a guardian, the court may: (1) treat the petition as one for a 

protective order and proceed accordingly; (2) enter any other appropriate order; 

or (3) dismiss the proceedings.”). Further, Ind. Code § 29-3-5-3 provides that a 

trial court may appoint a guardian to a minor if “the appointment of a guardian 

is necessary as a means of providing care and supervision of the physical person 

or property of the . . . minor.” This court has previously observed that the term 

“necessary” is not defined by the guardianship statute, and that two definitions 

of the word are “1. Absolutely essential . . . . 2. Needed to achieve a certain 

result or effect . . . .” E.N., 720 N.E.2d at 452 (quoting THE AMERICAN 

HERITAGE COLLEGE DICTIONARY 911 (3rd ed. 1993)). Further, unlike the trial 

court in Troxel, the trial court here observed that Indiana recognizes “the 

important and strong presumption that a child’s best interests are ordinarily 

served by placement in the custody of the natural parent,” that the burden of 

overcoming the presumption is on the third party seeking custody, and that the 

presumption will not be overcome merely because a third party could provide 
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the better things in life for the child. Appellant’s Appendix at 23. We cannot 

say that reversal is warranted based upon Troxel.

[34] To the extent Mother argues that Indiana’s reliance on the significant and 

substantial best interests of the child in lieu of a showing of unfitness, 

abandonment, or long acquiescence violates a parent’s Due Process rights 

under the Fourteenth Amendment to the United States Constitution, we 

observe that the Indiana Supreme Court discussed these factors in B.H. In that 

case, the Court observed that this Court restated the considerations expressed in 

Gilmore v. Kitson, 165 Ind. 402, 74 N.E. 1083 (1905), and had stated that to 

rebut the presumption that it will be in the best interests of the child to be placed 

in the custody of the natural parent “it must be shown by the attacking party 

that there is, (a) unfitness, (b) long acquiescence, or (c) voluntary 

relinquishment such that the affections of the child and third party have become 

so interwoven that to sever them would seriously mar and endanger the future 

happiness of the child.” 770 N.E.2d at 286 (quoting Hendrickson v. Binkley, 161 

Ind. App. 388, 393-394, 316 N.E.2d 376, 380 (1974), cert. denied, 423 U.S. 868 

(1975)). The Court went on to hold, that “[i]n a proceeding to determine 

whether to place a child with a person other than the natural parent, evidence 

establishing the natural parent’s unfitness or acquiescence, or demonstrating 

that a strong emotional bond has formed between the child and the third 

person, would of course be important, but the trial court is not limited to these 

criteria.” Id. at 287. In other words, the Court held that “the trial court is not 

limited to the three Hendrickson factors.” Id. at 288. It further held that the trial 
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court’s “detailed findings provide ample support for the judgment of the trial 

court in granting the stepfather’s guardianship petition,” and that “the trial 

court was clearly convinced that placement with the stepfather represents a 

substantial and significant advantage to the children.” Id. 

[35] The trial court in this case noted the “important and strong presumption that a 

child’s best interests are ordinarily served by placement in the custody of the 

natural parent,” that “[t]he burden of overcoming the presumption is on the 

third party seeking custody,” and that “[b]efore placing a child in the custody of 

a person other than the natural parent, a trial court must be satisfied by clear 

and convincing evidence that the best interests of the child require such a 

placement.” Appellant’s Appendix at 23. The court also noted it “must be 

convinced that placement with a person other than the natural parent represents 

a substantial and significant advantage to the child,” and that the “presumption 

will not be overcome merely because a third party could provide the better 

things in life for the child.” Id. at 23-24. Under the circumstances, we cannot 

say that Mother was deprived of due process. 

B. Sufficient Evidence

[36] Mother argues that there was insufficient evidence to grant the petition and 

asserts that the circumstances surrounding the temporary guardianship have 

been remedied. She points out that J.N. was returned by the Scroghams on 

September 25, 2014, and has remained in her care without incident. She

contends that the court’s determination is unconstitutional to the extent it based 
Court of Appeals of Indiana | Memorandum Decision 39A01-1512-GU-2289 | October 14, 2016 Page 28 of 31

its decision on her Native American and Christian beliefs, and that there is no 

law against adults smoking in the presence of their children in Indiana. She 

asserts that, contrary to Paragraph 42 of the court’s order, she did know that 

J.N. needed to see a dentist and had an appointment to take him to the dentist 

in April 2014 and that there is no evidence to support Finding 32 that she was 

having difficulty parenting J.N. as of December 12, 2014. Mother also argues 

that the trial court erroneously awarded the Scroghams guardianship without a 

showing or finding that the guardianship was necessary as required by statute. 

[37] The Scroghams assert that the evidence supports the findings and the findings 

support the conclusion. The Scroghams also argue that a trial court’s failure to 

include a specific finding on necessity will not be grounds for reversal if it is 

implicit in the findings and the findings support the conclusion that the 

guardianship is necessary. 

[38] As for Mother’s argument that the court based its decision on her religious 

beliefs, we observe the trial court’s statement that Mother “demonstrated 

delusional thoughts in connection” with her heritage and that “[t]he issue here 

is not whether Mother’s Indian heritage and her actions in connection therewith 

are legitimate exercises of religion but rather what effect the same have on S.S.” 

Appellant’s Appendix at 26-27. We cannot say that the trial court based its 

decision on Mother’s religious beliefs.

[39] With respect to her smoking, the court found that “Mother smokes in the home 

when S.S. is present despite the fact that the smoke makes it difficult for S.S. to 
Court of Appeals of Indiana | Memorandum Decision 39A01-1512-GU-2289 | October 14, 2016 Page 29 of 31

breathe.” Id. at 21. GAL Berry’s report filed on June 19, 2015, states that S.S. 

said Mother “is still smoking inside the apartment and it hurts her to breathe 

smoke.” Id. at 43. Further, GAL Berry testified that S.S. “would get a 

headache from the smoke in the house . . . .” Transcript at 322. We cannot say 

that this finding is clearly erroneous.

[40] As for the court’s statement that J.N. did not go to a dentist until the Scroghams 

took him during their temporary guardianship and that Mother knew or should 

have known that he was in need of dental work, we observe that Teresa testified

that she noticed J.N. had atrociously bad breath, that she looked in J.N.’s 

mouth and saw a “very rotten tooth,” that she asked him if he had ever been to 

a dentist, that J.N. said “No,” and that J.N.’s teeth were “in such bad shape 

because of having never been to a dentist in his life . . . .” Id. at 143, 145. GAL 

Berry testified that she noticed some discrepancies between what Mother had 

told her and Mother’s testimony. When asked about the discrepancies, GAL 

Berry stated: 

One of them was when I asked her, ‘Have the kids ever been to a 

dentist?’ She said, ‘No,’ but she had had an appointment for J.N. 

but it was not until the spring and that was like four or five 

months after his surgery that he had. That was the first time that 

she had uh---had a dentist appointment for him.

Id. at 321. We cannot say that the court’s finding is clearly erroneous. 

[41] Mother does not specifically argue that the evidence fails to support a number 

of the court’s findings including that she stated that she was “overwhelmed” 
Court of Appeals of Indiana | Memorandum Decision 39A01-1512-GU-2289 | October 14, 2016 Page 30 of 31

with life in general in April 2014, she stopped taking prescriptions without a 

doctor’s approval after being released from Clark County Behavioral Health, 

she suffers from Bipolar II disorder, cannabis use disorder, panic disorder, 

PTSD, and agoraphobia, that S.S. missed 22 days and J.N. missed eighteen 

days of school when they were living with Mother during the 2013-2014 school 

year because Mother did not wake them in time to catch the school bus, and 

that S.S. was scared to be with her, felt unsafe with her, and did not like the 

screaming and cursing that occurs in her house. Additionally, Mother does not 

contend the evidence fails to support the finding that her method of discipline is 

to yell and curse at the children, that S.S. is emotional, upset, and cries 

sometimes after her visits with her, that S.S. missed only two to three days of 

school during the 2014-2015 school year when residing with the Scroghams, 

and that S.S. is thriving and feels safe with them.

7

 

[42] We note that some of these findings relate to circumstances present at the time 

of the hearing. GAL Berry filed a report on June 19, 2015, and indicated she 

performed a home visit with S.S. who told her that Mother made her go to a 

neighbor’s house and buy cigarettes for her with S.S.’s money, Mother was 

“still smoking” inside the apartment, Mother constantly screams about the 

Scroghams, the dynamics of Mother’s home continues to be unchanged, and 

 

7 Mother asserts that it is bad public policy to base an award primarily on her mental health issues. We 

cannot say that the trial court granted the petition for guardianship based only upon Mother’s mental illness. 
Court of Appeals of Indiana | Memorandum Decision 39A01-1512-GU-2289 | October 14, 2016 Page 31 of 31

that S.S. is still afraid to go back and live with Mother. Appellant’s Appendix 

at 43.

[43] To the extent Mother argues that the trial court erroneously awarded the 

Scroghams guardianship without a showing it was necessary as required by 

statute, we have previously held that “a trial court’s failure to include a specific 

finding on necessity will not be grounds for reversal if it is implicit in the trial 

court’s evidentiary findings.” Hinkley v. Chapman, 817 N.E.2d 1288, 1291 (Ind. 

Ct. App. 2004) (citing E.N., 720 N.E.2d at 452). As discussed, the trial court 

entered a nineteen-page order with detailed findings. We conclude that implicit 

in these findings was the finding that the guardianship was necessary. See id.

(“Implicit in these findings is the trial court’s finding that the appointment of 

the Chapmans as guardians was necessary, i.e., absolutely essential or needed 

to rectify L.B.’s educational deficiencies. Therefore, we do not reverse the trial 

court’s determination for the absence of a specific finding.”).8

[44] We affirm the decision of the trial court.

Robb, J., and Mathias, J., concur.

 

8 Mother argues that this case is similar to In re Guardianship of L.L., in which we reversed and remanded with 

instructions to terminate a guardianship. 745 N.E.2d at 233. We observed that “there is absolutely no 

indication that [the mother] is presently an unfit parent,” that it was undisputed the mother had been 

successful in raising another child during the previous six years, that the custody evaluator’s report spoke of 

the mother’s parenting capabilities only in positive terms, and that the evaluator expressly testified that she 

believed the mother was capable of taking care of both children. 745 N.E.2d at 231. The circumstances in 

L.L. are not present here.