Court of Appeals of Indiana | Opinion 19A

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- 1759 | December 12, 2019 Page 1 of 11 A TTORNEY FOR A PPELLANT David Paul Allen Hammond, Indiana A TTORNEY FOR A PPELLEE S R. Cordell Funk Funk & Wendlinger, LLC Schere r ville, Indiana



### IN THE 

# COURT OF APPEALS OF INDIANA

In the Matter of the Guardianship of A.Y.H. ( Minor Child ) Yah ya Hemaid (Father) , Appellant

- Petitioner ,

v. 

### Rosegina Wheeler and Randall Wheeler (Guardians) , Appellee s-

Respondents December 12, 2019 Court of Appeals Ca se No. 19A

- GU -1759 Appeal from the Lake Superior Court The Honorable Alexis Vazquez Dedelow, Special Judge Trial Court Cause No. 45D06 -1110- GU -152

Crone , Judge
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- 1759 | December 12, 2019 Page 2 of 11 

### Case Summary

[1] Yahya Hemaid (“Father”) appeals the trial court’s denial of his petition to terminate a permanent guardianship order designat ing Rosegina Wheeler and Randall Wheel er (collectively “Guardians”) as guardians of his e ight

- year - old child A.Y.H. (“Child”)

. We affirm

. 

### Facts and Procedural History

[2] Child was born to Father and Robynleigh Hemaid (“Mother”) in October 201 0

. Shortly after his birth, he began living with Guardians , who are his maternal great aunt and uncle

. Father was incarcerated from February 2011 through February 2012. In October 2011, Guardians filed a petition for permanent guardianship, and Mother signe d a consent to the appointment. The trial court issued a permanent guardianship order in November 2011. In February 2012, Mother and Father dissolved their marriage. In the ensuing three years, neither Mother nor Father visited or provided financial sup port for Child.

[3] In 2015, Father filed a petition to terminat e the guardianship. The matter remained unresolved until November 2017, when Father and Guardians executed an a greed o rder pursuant to which Guardians agree d to forgo pursuing adoption of Child , and the parties agreed that the guardianship would continue until Child’s eighteenth birthday. The a greed o rder also provided that Father would have phased

- in parenting time that would eventually lead to parenting tim e pursuant to the Indiana Parenting Time Guidelines, with overnight and alternating

- weekend visits

.Court of Appeals of Indiana | Opinion 19A

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- 1759 | December 12, 2019 Page 3 of 11 [4] On November 5, 2018, Father filed a second petition to terminate the guardianship. The trial court conducted hearings over two days, after which the part ies submitted proposed findings of fact and conclusions thereon pursuant to Indiana Trial Rule 52(A)

. On July 3, 2019, the trial court issued an order with findings of fact and conclusions t hereon denying Father’s petition to terminate the guardianship. Father now appeals. Additional facts will be provided as necessary.


### Discussion and Decision

[5] Father asserts that the trial court erred in denying his petition to terminate the guardianship. Gua rdianship proceedings are guided by Ind iana Code Section
29

- 3

- 12

- 1(c)(4) , which reads, “ The court may terminate any guardianship if

... the guardianship is no longer necessary[.]”

[6] We review the trial court’s order in guardianship proceedings for an abuse of discretion , with a preference for gr an ting latitude and deference to our trial judges in family law matters. In re Guardianship of M.N.S. , 23 N.E.3d 759, 765

- 66 (Ind. Ct. App. 2014)

. Where the trial court issues findings of fact and conclusions thereon, we ty pically employ a two

- tiered standard of review, determi ning first whether the evidence supports the findings and then whether the findings support the judgment. In re Guardianship of L.R.T. , 979 N.E.2d 688, 689 (Ind. Ct. App. 2012) , trans. denied (2013)

. W hile we review the trial court’s conclusions de novo, w e will not set aside t he findin gs unless they are clearly

erroneous , meaning that our review of the record leaves us firmly convin c edCourt of Appeals of Indiana | Opinion 19A

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- 1759 | December 12, 2019 Page 4 of 11 that a mistake has been made. In re Guardianship of B.W. , 45 N.E.3d 860, 866 (Ind. Ct. App. 2015)

. In conducting our review, w e neither reweigh evidence

nor reassess witness credibility but rather consider the evidence and reasonable inferences most favorable to the judgment

. Matter of Guardianship of I.R. , 77 N.E.3d 810, 813 (Ind. Ct. App. 2017)

.

[7] As a preliminary matter, we n ote that Father has not provided us a copy of the transcript of the trial court proceedings

. Indiana Appellate Rule 9 ( F)(5) requires the appellant ’s Notice of Appeal to include “[a] designat ion of all portions of the Transcript necessary to present fairly and decide the issues on appeal

. ” Rule 9(F)(5) also specifies that “[i]f the appellant intends to urge on appeal that a finding of fact or conclusion thereon is unsupported by the evidence or is contrary to the evidence, the Notice of Appeal shall request a Transcript of all the evidence.” Father claims that he intentionally omitted the transcript because he does not challenge the sufficiency of the evidence supporting any of the findings. However, he lists certain findings in his brief and asserts that they are incomplete , insufficient, or incorrect

. W e have no basis for evaluating such claims , given the deficient record before us. Thus, Father has waived any allegations of error pertaining to the accuracy and/or adequacy of the findings. See Lifeline Youth & Family Servs., Inc. v. Installed Bldg.
Prods

. , Inc. , 996 N.E.2d 808 , 814 (Ind. Ct. App. 2013) (“ A lthough not fatal to the appeal, failure to include a transcript works a waiver of any specifications of error which depend upon the evidence.” ) (quoting In re Walker , 665 N.E.2d 586, 588 (Ind. 1996)

. Accordingly, w e l imit our discussion to whether the findingsCourt of Appeals of Indiana | Opinion 19A

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- 1759 | December 12, 2019 Page 5 of 11 support the judgment. T.B. v. Ind. Dep’t of Child Servs. , 971 N.E.2d 104, 110 (Ind. Ct. App. 2012), trans. denied

.

[8] The trial court f ound in pertinent part as follows: 1

4. [M] ore than three years after this Court had appointed Guardians over Child , Father filed a Motion to Terminate Gu ardianship

. 5. On November 3, 2 0 17, the parties filed an Agreed Order wherein “the guardians agree not to seek an adoption based on either p are n t’s failure to visit or support” and “the guardianship shall remain in place until Child reaches the age of eighteen (18) .” Furthermore, the Agreed Order set out Father’s pare nting time to be phased in for a period of eight (8) weeks, after which Father would have parenting time pursuant to the Indiana Parenting Time Guidelines.
6. On November 5, 2018, Father filed a Petition to Terminate Guardianship [.]

.... 8. Child is eight (8) years old and has lived with Guardians since birth.... 9. Father spent tw elve (12) months in Lake County Jail commencing in February of 2011.

... 10. Father

... did not file his first Motion to Terminate Guardianship until March 2015 , more than two years after his

1 To the extent that the trial court used proper names or other designations for the parties, for consistency ’s sake, we refer to the m as previously designated

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- 1759 | December 12, 2019 Page 6 of 11 release from jail.

11. Father did not see Child for approximately six (6) years , from the time he was incarcerated in 2011 until December of 2017 . Father did not provide child support for Child throughout those six (6) years.

.... 13. Pursuant to the parties’ Agreed Ord er

... Father began his phased in parenting time in December 2017. After Father saw Child at Guardian ’s (sic) home, Father had

.... [several] day time visits with Child

... . [and] overnight visits o f two or more days about 20 times; which included, some extende d overnights of three to five days.

... 14. Prior to the phased in parenting time that began in December 2017, Child had not seen or heard from Father since he was less than a year old. Child is experiencing issues adjusting to seeing Father for the first time since he was an infant

.... Child is currently in counseling

... . Father was invited to participate with said counseling, but only attended one session. Father believes that Child ’s counselo r is biased and Father did not want to continue to participate with Child ’s counseling.

15. Child also participates in counseling with his school counselor

.... 16.

.... Father has

... told Child that he will take him to the police if he does not behave.

.... 18. Alt hough Father has access to the teachers and counselors at school, Father has not reached out to ei t her teachers or Child ’s school counselor.

... Father has also had the opportunity to meet with Child at school and have lunch with Child but Father hasCourt of Appeals of Indiana | Opinion 19A

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- 1759 | December 12, 2019 Page 7 of 11 not part icipated in said lunch. Guar dians ha ve provided Fat h er with medical records and school records.

1 9

. Child has been in the care of Guardians since b irth. Guardians have provided the day

- to

- day care of Child and have supported Child since birth. Child has bonded well with Guardians and is thriving in their care.
Appealed Order at 1

- 3. Because Father has waived any challenge to the findings, they stand as proven. See McMaster v. McMaster , 681 N.E.2d 744, 747 (Ind. Ct. App. 1997) (unchallenged findings are accepted as true).

[9] As we consider whether the trial court’s findings support the judgment , we are mindful that Father’s appeal involves a parent see k ing to gain custody of his child , who has been under the guardianship of a third party/nonparent . As such, we note the following with respe ct to the relative burdens of the parties:
Indiana courts have long held that even 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 ... rather, the bu rden of proof is always on the third party. There is a strong presumption that a child’s interests are best served by placement with the natural parent. 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.

I

.R. , 77 N.E.3d at 813 (citations , quotation marks and brackets omitted).Court of Appeals of Indiana | Opinion 19A

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- 1759 | December 12, 2019 Page 8 of 11 [10] In determining whether the third party has present ed cle ar and convincing evidence sufficient to overcome the presumption in favor of the natural parent , the trial court will consider evidence presented by the third party as to the parent’s “(a) unfitness, (b) long acquiescence , or (c) voluntary relinquishment such that the affections of the child and the third party have become so interwoven that to sever the m would seriously mar and endanger ” the child’s future happiness

. K.I. ex rel. J.I. v. J.H

. , 903 N.E.2d 453, 459 (Ind. 2009) (quoting In re Guardianship of B

. H. , 770 N.E.2d 283, 286 (Ind. 2002) ). But the trial court’s inquiry is not limited to the se three factors

. B.H. , 770 N.E.2d at 287

. Ultimately , t he court’s determination must rest on “ whether the important and strong presumpt ion that a child ’s interests are best served by placement with the natural parent is clearly and convincingly overcome ” by the third party’s evidence concerning the child’s best interests. Id

.

[11] With respect to the trial court’s conclusions of law , Father first contends that the trial court committed reversible error by failing to specify in its order that the Guardians were su bject to a “ clear and convincing” standard of proof. However, the case that he cites does not support the proposition that the trial court must specify the standard of proof in its findings or conclusions. See
M.N.S. , 23 N.E.3d at 766 ( stating that third party must meet clear and convincing evidence standard of proof ). Thus, the case cited by Father does not support the proposition for which it was cited , and he therefore has waived th is allegation of error by failing to support his proposition with a citation to relevant authority as required by Indiana Appellate Rule 46(A)(8)

. Even so, weCourt of Appeals of Indiana | Opinion 19A

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- 1759 | December 12, 2019 Page 9 of 11 note that trial court s are presumed to have considered the relevant factors and followed the appli cable law , and the party challenging th e trial court’s conclusion must overc ome this strong presumption

. Del Priore v. Del Priore , 6 5 N.E.3d 1065, 1072 (Ind. Ct. App. 2016) , trans. denied (2017).

[12] Father also challenges paragraphs 6 and 7 of the trial court’s c onclusions , essentially claiming that they are more accurately characterized as findings of fact, which he claims to be inaccurate , incomplete , or in consistent with the

court ’s labeled findings

. As discussed, the findings themselves stand as proven due to Father’s waiver for failing to request a transcript of the proceedings below. Notwithstanding, w e find these paragraphs to be ultimate findings /conclusions

– the application of the relevant facts to the law

– which trial courts commonly include in their comprehensive orders. 2 In short , paragraphs 6 and 7 list the salient reasons for the trial court’s decision to deny Father’s termination petition. These include: Father’s failure to visit and failure to support Child for nearly seven years of his eight

- year life ; Father’s acquiescence by failing to challenge the guardianship for three years after his

2 Father’s briefs include vitriolic language impugning the motives of both the trial court and Guardians. S ee, e.g. , Appellant’s Br. at 25 (“it cannot be reasonably maintained that the deficiencies in the trial court’s conclusions of law were inadvertent.”); Reply Br. at 7 (“A rational inf erence is that the trial court knew full well the mentioned legal standards but failed to mention them for the want of evidence satisfying those standards.”); id . at 6 (“Guardians have taken indecent liberties with Father’s Argument.”); id . at 5

- 6 (“[The A greed Order’s existence is testament to the vileness of extracting such a concession from a noncustodial Father”). We remind counsel that the purpose of appellate briefs is to present this Court with concise arguments supported by statutory law, case law, and the record. Ind. App ellate R ule 46(A)(8) . “Invectives are not argument, and have no place in legal discussion ....” Brill v. Regent Commc’ns, Inc. , 12 N.E.3d 299, 301 n.3 (Ind. Ct. App. 2014) (quoting Pittsburgh, Cincinnati, Chicago & St. Louis Ry. Co. v. Muncie & Portland Traction Co. , 166 Ind. 466, 468, 77 N.E. 941, 942 (1906) ), trans. denied

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- 1759 | December 12, 2019 Page 10 of 11 release from jail ; Father’s failure to communicat e with Child un til the a greed

o rder was executed in 2017; Child’s confusion, fear, and emotional problems that resulted from Father repeatedly telling him during parenting time that he would be removed from Guardians and would come to live with him soon ; the fact that Guardians a re the only parents Child has ever known; the strong bond between Child and Guardians that is “so interwoven that to att e mpt to uproot [] Child from his home environment would seriously mar and endanger the safety and stability of [] Child” ; Guardians’ stable lifestyle , which allow s Child to

“ thrive and properly develop physically, cognitively, and socially ”; and the detriment to Child’s mental and emotional health and development if removed from Guardians. Appealed Order at 4

- 5.

[13] I n sum, the trial court’s findings and conclusions support the strong presumption that the trial court followed the applicable law and employed the presumption favoring the natural parent over the third part ies but simply rendered a decision that is contrary to Father’s desire d outcome

. We find no abuse of discretion in the trial court’s denial of Father’s petition to terminate the guardianship. 3 Accordingly, we affirm.

3 Because we find no abuse of discretion in the trial court’s decision , w e need not address Guardians’ alternat e argument that Father is contractually bound by the a greed o rder ’s provision that the guardianship shall continue until Child is eighteen

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- 1759 | December 12, 2019 Page 11 of 11 [14] Affirmed.

May, J., and Pyle, J., concur.