Court of Appeals of Indiana | Opinion 19A-GU-1759 | December 12, 2019 Page 1 of 11

ATTORNEY FOR APPELLANT

David Paul Allen

Hammond, Indiana

ATTORNEY FOR APPELLEES

R. Cordell Funk

Funk & Wendlinger, LLC

Schererville, Indiana

IN THE

COURT OF APPEALS OF INDIANA

In the Matter of the 

Guardianship of A.Y.H. (Minor 

Child) 

Yahya Hemaid (Father), 

Appellant-Petitioner, 

v. 

Rosegina Wheeler and Randall 

Wheeler (Guardians), 

Appellees-Respondents

December 12, 2019

Court of Appeals Case 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. 
Court of Appeals of Indiana | Opinion 19A-GU-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 designating Rosegina Wheeler and 

Randall Wheeler (collectively “Guardians”) as guardians of his eight-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 2010. 

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 signed 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 support for Child. 

[3] In 2015, Father filed a petition to terminate the guardianship. The matter

remained unresolved until November 2017, when Father and Guardians 

executed an agreed order pursuant to which Guardians agreed to forgo 

pursuing adoption of Child, and the parties agreed that the guardianship would 

continue until Child’s eighteenth birthday. The agreed order also provided that 

Father would have phased-in parenting time that would eventually lead to 

parenting time pursuant to the Indiana Parenting Time Guidelines, with 

overnight and alternating-weekend visits. 
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[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 parties 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 thereon 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. Guardianship proceedings are guided by Indiana 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 granting 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 typically employ a two-tiered standard of review, 

determining 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). While we review the trial court’s 

conclusions de novo, we will not set aside the findings unless they are clearly 

erroneous, meaning that our review of the record leaves us firmly convinced 
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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, we 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 note 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] designation 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. We 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) (“Although 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, we limit our discussion to whether the findings 
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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 found 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 

Guardianship.

5. On November 3, 2017, the parties filed an Agreed Order 

wherein “the guardians agree not to seek an adoption based on 

either parent’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 parenting 

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 twelve (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 them as previously designated. 
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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 Order ... 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 of two or more days 

about 20 times; which included, some extended 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 counselor 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. Although Father has access to the teachers and counselors at 

school, Father has not reached out to either 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 has 
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not participated in said lunch. Guardians have provided Father 

with medical records and school records. 

19. Child has been in the care of Guardians since birth. 

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 seeking to gain custody of his 

child, who has been under the guardianship of a third party/nonparent. As 

such, we note the following with respect 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 burden 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). 
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[10] In determining whether the third party has presented clear 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 them 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 these three factors. B.H., 770 N.E.2d at 

287. Ultimately, the court’s determination must rest on “whether the important 

and strong presumption 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 subject 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 this 

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, we 
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note that trial courts are presumed to have considered the relevant factors and 

followed the applicable law, and the party challenging the trial court’s 

conclusion must overcome this strong presumption. Del Priore v. Del Priore, 65 

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 conclusions, 

essentially claiming that they are more accurately characterized as findings of 

fact, which he claims to be inaccurate, incomplete, or inconsistent 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, we 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. See, 

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 inference 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 

Agreed 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. Appellate Rule 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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release from jail; Father’s failure to communicate with Child until the agreed 

order 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 are the only parents Child has ever known; the strong bond 

between Child and Guardians that is “so interwoven that to attempt to uproot [] 

Child from his home environment would seriously mar and endanger the safety 

and stability of [] Child”; Guardians’ stable lifestyle, which allows 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] In 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 parties but simply

rendered a decision that is contrary to Father’s desired 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, we need not address Guardians’ 

alternate argument that Father is contractually bound by the agreed order’s provision that the guardianship 

shall continue until Child is eighteen. 
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[14] Affirmed.

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