FOR PUBLICATION
ATTORNEYS FOR APPELLANT: ATTORNEY FOR APPELLEES:
ROBERT L. JONES JULIE P. VERHEYE
JOANMARIE ILARIA DAVOLI Mishawaka, Indiana
MARY FRANCES BLAZEK
South Bend, Indiana
IN THE
COURT OF APPEALS OF INDIANA
JENNIFER M. MEGYESE, )
)
Appellant-Respondent, )
)
vs. ) No. 71A03-0401-CV-33
)
ANTHONY C. WOODS and )
BOBBIE J. WOODS, )
)
Appellees-Petitioners. )
APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
The Honorable William C. Whitman, Judge
Cause No. 71D06-0308-MI-48
May 28, 2004
OPINION - FOR PUBLICATION
SHARPNACK, Judge
Jennifer Megyese (Mother) appeals the trial courts grant of visitation to Anthony Woods
(Grandfather) and Bobbie Woods (Grandmother) (collectively, Grandparents). Mother raises one issue, which
we restate as whether the trial courts order granting Grandparents visitation with G.W.
and J.W. (collectively, the Children) is clearly erroneous. We affirm.
The relevant facts follow. Mother and Terrell Woods (Father) had two children,
G.W., born August 24, 2000, and J.W., born September 7, 2001. Fathers
paternity of G.W. was established by the St. Joseph County Probate Court, and
shortly after J.W.s birth, Father signed an affidavit acknowledging that he was J.W.s
father.
Mother and Father moved in with Grandparents shortly before G.W. was born.
While Mother was pregnant with G.W. and after G.W. was born, Grandmother took
Mother to all of her doctors appointments. G.W. was colicky, and Grandmother
also helped Mother care for G.W. at night when she was crying, and
sometimes Grandmother would take G.W. to bed with her. Grandmother also
helped Mother find a job, and when Mother went back to work, Grandmother
drove G.W. to and from her babysitter. On one occasion, Mother told
Grandmother, [G.W.] is more attached to you than to me, and she told
Grandmother that she was her guardian angel. Transcript at 13, 16.
About four months after G.W. was born, Mother moved out of Grandparents house
and into an apartment. After Mother moved, Grandmother became concerned about Mother
and G.W. because Mother appeared to be down and not wanting to do
anything or get up and clean [herself up] or take care of [G.W.]
like she should. Id. at 18. Grandmother told Mother that she
needed to take better care of herself and G.W. During this time,
Grandparents continued to have contact with Mother and G.W.
Approximately three months later, Mother moved to her parents house and cut off
contact between Grandparents and G.W. Approximately two to three months later, Mother
began to visit Father who was still living at Grandparents house. On
September 7, 2001, Mother and Fathers second child, J.W., was born. When
J.W. was born, Mother was living with her parents, but about two weeks
after his birth, she went to live with Father at Grandparents house.
Mother, Father, and the Children moved into an apartment about one month later
but only stayed there for about two weeks because Mother and Father split
up. Mother and the Children moved back to Mothers parents home, and
approximately three months later, Grandparents helped Father get court ordered visitation rights with
the Children. Grandparents then saw the Children during Fathers visitation. Father
was murdered on February 7, 2003, and after Fathers funeral, Grandmother called Mother
and asked her if she could see the Children. Mother said that
she could, but despite Grandmothers repeated requests to visit the Children, a visit
was never arranged.
Grandparents then filed for grandparent visitation. Mother objected to Grandparents request for
visitation, and the trial court held a hearing. During the hearing, Grandmother
testified that she desired visitation with the Children because both sides make a
whole, and we can give to them just as her family have things
that they can give to them as well. I think we are
a loving family. We have other grandkids, we love them dearly.
We love all our grandkids dearly. Thats all we want, we just
want to be a part of them, to have . . . them
. . . know us, and us to know them, and contribute the
love that we have for them. Id. at 32-33. During the
hearing, Grandfather said that he desired visitation with the Children because Id like
to spend as much time as I can with my grandkids to offer
whatever advice I could give them. . . . we dont want
the kids, we have already raised our kids. Its just the idea,
we want to see our grandkids, thats what it all boil[s] down to.
Id. at 51-52.
Mother testified that when she starting dating Father, she and Grandmother had a
good relationship, but when Father became abusive, her relationship with Grandmother deteriorated.
Mother said that on one occasion, she and Father fought, and Father busted
[her] head open. Id. at 104. Mother told Father that he
had to leave, Grandmother picked Father up, and Grandmother told Mother she would
whip [Mothers] ass up and down Main Street if she [was not] able
to see her grandbabies. Id. at 103-104. Grandmother also took some
clothes, which she had given G.W. and told Mother that she would give
them back when she got back together with Father. Grandmother denied making
any threatening statements to Mother but said that she did take G.W.s clothes
to wash them.
Mother also testified that Grandparents house was not safe for the Children.
Mother said that she had seen Grandfather smoke marijuana in his house and
was concerned about cousins carrying handguns in Grandparents house. Grandparents disputed Mothers
assertion that Grandfather smoked marijuana in the house, and Grandmother said that she
had never let any of her relatives come to her house with a
gun. Mother was also concerned about Children spending time with Grandparents extended
family because two weeks after Father was murdered, Grandparents niece was shot and
killed.
Mother said that Grandparents have no relationship with J.W., and Grandfather has had
little contact with G.W. Id. at 118. Mother also said that
Grandparents question whether J.W. is Fathers child and have requested that J.W. get
a blood test in order to determine his paternity. Grandfather admitted that
he has questioned J.W.s paternity, but said, [m]y son accepted him, so I
have to go along with my sons wishes. Id. at 57.
Likewise, Grandmother said, [m]y son signed the paperwork, and as far as I
am concerned, thats my grandchild. I would treat him just like I
do with the rest, any of the rest, with loving care. Id.
at 132. Mother said that because Grandparents question whether J.W. is Fathers
son, Grandparents treat G.W. and J.W. differently. Grandmother denied this accusation.
J.W. has separation anxiety and will scream bloody murder if he is separated
from Mother. Id. at 117. Mother has not told the Children
about the circumstances surrounding Fathers murder, and she is concerned that Grandparents will
tell the Children about the circumstances of Fathers murder against Mothers wishes.
Grandmother said that she would not discuss the circumstances surrounding Fathers murder with
the Children.
After the hearing, the trial court issued an order granting Grandparents visitation rights
with the Children. The trial courts findings of fact were as follows:
[G.W.] is the three year old child (d.b. 8/24/00) of [Mother] and [Father],
who was murdered on February 7, 2003. [Mother] and [Father] never married.
[Fathers] paternity was established by the St. Joseph Probate Court.
[J.W.] is the two year old child (d.b. 9/7/01) of [Mother] and [Father]
pursuant to the Paternity Affidavit signed by [Father] and [Mother] on September 8,
2001, a copy of which was attached to [Grandparents] petition. [Grandparents] are
the parents of the late [Father] and, therefore, the grandparents of [the Children].
[Grandparents] met [Mother] in 1999 when she and [Father] were dating. [Mother]
and [Father] visited [Grandparents] home frequently. When [Mother] became pregnant with [G.W.]
in 2000, [Grandmother] often took her to her appointments with the doctor.
Following [G.W.s] birth on August 24, 2000, [Father], [Mother], and [G.W.] moved in
with [Grandparents]. [Grandmother] was actively involved in the hands on care of
[G.W.] from birth until the three left [Grandparents] home in December of 2000
and took up residency in Carriage House Apartments. During that period both
[Grandmother] and [Mother] described their relationship as good.
In the winter of 2001 [Mother] and [Father] separated. [Mother] returned with
[G.W.] to her parents house. Notwithstanding [Grandmothers] efforts to keep in touch
with [G.W.], contact was cut off at that juncture by [Mother], apparently at
the behest of her parents.
During the ensuing months, the extent to which [Grandparents] saw [G.W.] depended upon
the state of the relationship between [Mother] and [Father]. When their relationship
was good [Grandparents] saw [G.W.] When they were bad, they did not.
On September 7, 2001 [J.W.] was born. When [Mother] was released from
the hospital, she, [Father, and the Children] once again moved back into [Grandparents]
home. They resided there for about one month when they relocated to
an apartment for a brief period. [Mother] and [Father] split up again,
with [Mother] returning to her parents home. Consistent with the pattern of
her previous return to the home of her parents, [Grandmothers] visits with [the
Children] came to an abrupt end at that juncture.
In the meantime, [Father] petitioned the court for parenting time with [G.W.] which
was granted around August or September of 2002. [Grandparents] began to see
[the Children] during [Fathers] parenting time periods. That was the situation until
[Fathers] death on February 7, 2003.
Following [Fathers] funeral [Grandmother] and [Mother] conversed concerning [Grandmothers] wish to see [the
Children]. [Mother] initially agreed. Notwithstanding, [Grandmothers] repeated requests, however, [Mother] has
allowed no contact since [Fathers] death.
In her testimony [Grandmother] expressed her desire to be a part of [the
Childrens] lives, believing both sides make a whole. She described her large
family as loving, and felt that [the Childrens] best interest would be served
by being a part of it. In his testimony [Grandfather] expressed a
desire to be a grandparent to [the Children] just as he is to
his other grandchildren.
In her testimony [Mother] expressed a commendable position: I want my children to
be safe. Nonetheless her feeling that [Grandparents] live in an unsafe environment
simply was unsupported by any credible, cogent evidence. [Grandparents] appear to be
responsible, productive people. They are blessed with a supportive family and circle
of friends. The court is unprepared to make a quantum leap of
logic that would suggest that because [Father] died a violent death, [the Children]
are somehow at risk by being in the presence of [Fathers] parents.
Appellants Appendix at 3-5. The trial courts conclusions of law were as
follows:
[Mothers] decision to prevent any visitation by [Grandparents] must, of course, be given
special weight pursuant to Troxel v. Granville, 530 U.S. 57, 120 S. Ct.
2054, 147 L.E.2d 49, and the Indiana cases that have applied and followed
it. Accordingly, a presumption exists that her decision is in [the Childrens]
best interests. Nonetheless, . . . this presumption is rebuttable and
the petitioning grandparent has the burden of rebutting this presumption. Crafton v.
Gibson, [752 N.E.2d 78, 98 (Ind. Ct. App. 2001)].
Accordingly, it is the trial courts prerogative to listen to the evidence and
determine, in light of that evidence, whether a parents alleged justification for denying
or restricting visitation with grandparents holds water. Spaulding v. Williams, [793 N.E.2d
252, 260 (Ind. Ct. App. 2003)].
The greater weight of the evidence:
rebuts [Mothers] decision to terminate contact with [Grandparents], the reasons for which appear
unfounded; and
supports the proposition that visitation with their paternal grandparents is in [the Childrens]
best interests.
Id. at 5-6.
The sole issue is whether the trial courts order granting Grandparents visitation with
the Children is clearly erroneous. Ind. Code § 31-17-5-1 (1998) governs grandparent
visitation rights, and provides that:
(a) A childs grandparent may seek visitation rights if:
(1) the childs parent is deceased;
(2) the marriage of the childs parents has been dissolved in Indiana;
or
(3) subject to subsection (b), the child was born out of wedlock.
(b) A court may not grant visitation rights to a paternal grandparent of
a child who is born out of wedlock under subsection (a)(3) if the
childs father has not established paternity in relation to the child.
Ind. Code § 31-17-5-2 (1998) provides that:
(a) The court may grant visitation rights if the court determines that visitation
rights are in the best interests of the child.
(b) In determining the best interests of the child under this section, the
court may consider whether a grandparent has had or has attempted to have
meaningful contact with the child.
On review from a trial courts order granting or denying grandparent visitation, we
apply the familiar Ind. Trial Rule 52 standard, which provides that we may
not set aside the findings or judgment unless clearly erroneous. Woodruff v.
Klein, 762 N.E.2d 223, 226 (Ind. Ct. App. 2002), trans. denied.
In applying a two-tiered standard of review, we first determine whether the evidence
supports the findings and then whether the findings support the judgment. Id.
In deference to the trial courts proximity to the issues, we disturb the
judgment only where there is no evidence to support the findings or the
findings fail to support the judgment. Id. (citations and quotations omitted).
We do not reweigh the evidence or determine witness credibility. Id. at
227. Rather, we consider only the evidence most favorable to the
trial courts judgment, with all reasonable inferences drawn in favor of the judgment.
Id.
Mother argues that the trial courts order granting Grandparents visitation with the Children
is clearly erroneous because: (A) the trial applied the incorrect legal standard by
failing to accord a presumption in favor of Mothers decision to deny visitation;
and (B) the trial court failed to make specific findings of fact as
required by the Grandparent Visitation Act (Act), Ind. Code §§ 31-17-5-1 10, and
T.R. 52(A)(3). We will address each of Mothers arguments separately.
A.
The first issue is whether the trial courts order is clearly erroneous because
it applied the incorrect legal standard by failing to accord a presumption in
favor of Mothers decision to deny visitation. Our grandparent visitation statute is
a legislative recognition that a childs best interest is often served by developing
and maintaining contact with his or her grandparents. Swartz v. Swartz, 720
N.E.2d 1219, 1221 (Ind. Ct. App. 1999). Grandparents are members of the
extended family whom society recognizes as playing an important role in the lives
of their grandchildren, the importance of which has been given added meaning by
the legislatures policy judgment underlying the Act. Sightes v. Barker, 684 N.E.2d
224, 230 (Ind. Ct. App. 1997), trans. denied. When determining whether to
grant or deny grandparent visitation, trial courts are to presume that a fit
parents decision is in the best interests of the child. Crafton v.
Gibson, 752 N.E.2d 78, 96 (Ind. Ct. App. 2001) (citing Troxel v. Granville,
530 U.S. 57, 69, 120 S. Ct. 2054, 2062 (2000)). Acting under
this presumption, trial courts must give special weight to a parents decision to
deny or limit visitation. Id. at 96-97. A trial court should
also give some weight to the fact that a parent has agreed to
some visitation. Id. at 97. Still, while we must presume
that a fit parents decision regarding visitation is in the childs best interests,
that presumption is rebuttable. Id. at 97. Thus, a grandparent seeking
visitation has the burden of rebutting the presumption that a decision made by
a fit parent to deny or limit visitation was made in the childs
best interest. Id. Here, Grandparents had the burden of rebutting the
presumption that Mothers decision not to allow visitation was in the Childrens best
interest.
Mother argues that the trial court applied a presumption in favor of Grandparents
that required Mother to prove that grandparent visitation would not be in the
Childrens best interests. She insists that the trial court ignored portions of
her testimony wherein she said that grandparent visitation would not be in the
Childrens best interest. For example, Mother expressed concern about Grandparents extended family
members who were often at Grandparents house, including cousins who carried handguns in
Grandparents house. Mother also expressed concern about the fact that she felt
that Grandparents treated the Children differently because they question whether J.W. is Fathers
son. Mother also expressed concern that Grandparents would discuss the circumstances surrounding
Fathers death with the Children against her wishes, and she was concerned about
the fact that Grandfather smoked marijuana in the house. However, Grandparents specifically
disputed each of these allegations.
Nothing in Troxel or our cases following Troxel indicate that the trial court
must accept a parents reasons for denying or restricting visitation with grandparents as
necessarily true. Spaulding, 793 N.E.2d at 260. Moreover, the special weight
requirement does not require a trial court to take at face value any
explanation given by a parent. Id. (internal quotations omitted). Rather, the
trial court in grandparent visitation matters must exercise the same duties it has
in any other matter pending before it, namely, the duties of weighing the
evidence and judging witness credibility. Id. It is the trial courts
prerogative to listen to the evidence and determine, in light of that evidence,
whether a parents alleged justification for denying or restricting visitation with grandparents holds
water. Id. Therefore, here, the trial court was not obligated to
blindly accept Mothers assertions about Grandparents and was free to weigh the evidence
and judge the witnesses credibility.
The record indicates that Grandparents had developed a close relationship with the Children.
The Children had, from time to time, lived at Grandparents house.
After G.W. was born, Grandmother would often help Mother care for her and
would sometimes bring G.W. to bed with her, and on one occasion, Mother
told Grandmother, [G.W.] is more attached to you than me. Transcript at
13. When Mother and the Children were not living with Grandparents, Grandparents
consistently sought to visit with the Children, and when Mother and Father separated,
Grandparents assisted Father in getting court awarded visitation rights with the Children.
Grandparents would visit with the Children during Fathers visitation. After Fathers death,
Mother completely cut off Grandparents contact with the Children.
During the hearing, Grandmother said that she wanted visitation with the Children because,
we can give to them just as her family have things that they
can give to them as well. I think we are a loving
family. We have other grandkids, we love them dearly. We love
all our grandkids dearly. Thats all we want, we just want to
be a part of them, to have . . . them . .
. know us, and us to know them, and contribute the love that
we have for them. Id. at 32-33. Grandfather said that he
wanted visitation with the Children because, Id like to spend as much time
as I can with my grandkids to offer whatever advice I could give
them. . . . we dont want the kids, we have already
raised our kids. Its just the idea, we want to see our
grandkids, thats what it all boil[s] down to. Id. at 51-52.
In granting visitation rights to Grandparents, the trial court recognized that a presumption
exists that Mothers decision is in the Childrens best interests, but found that
Grandparents met their burden of rebutting that presumption. See Crafton, 752 N.E.2d
at 97. The trial court also concluded that Mothers reasons for denying
visitation were unfounded and noted that Grandparents appeared to be responsible, productive people,
who are blessed with a supportive family and circle of friends. Appellants
Appendix at 5. The trial court also noted that Mother had completely
terminated any contact between Grandparents and the Children. The trial court was
required to weigh the evidence and judge the witnesses credibility in order to
determine whether Mothers alleged justification for denying or restricting visitation with grandparents holds
water. Spaulding, 793 N.E.2d at 260. Here, the trial court, after
listening to the testimony, concluded that awarding Grandparents visitation with the Children was
in the Childrens best interests. The trial court did not fail to
accord a presumption in favor of Mothers decision to deny visitation. Rather,
it weighed the evidence and concluded that Mothers reasons for denying visitation were
unfounded. Based upon our review of the record, we cannot say that
there is no evidence to support the findings or that the findings fail
to support the judgment. See, e.g., Spaulding, 793 N.E.2d at 260.
B.
Mother also argues that the trial courts order is clearly erroneous because the
trial court failed to make specific findings of fact and conclusions thereon as
required by the Act and Ind. T.R. 52(A)(3).
See footnote Ind. Code § 31-17-5-6
(1998) provides that: Upon hearing evidence in support of and opposition to a
petition filed under this chapter, the court shall enter a decree setting forth
the courts findings and conclusions. In
McCune v. Fry, we held that
when a trial court issues an order granting or denying grandparent visitation, it
is required to issue findings of fact and conclusions of law, addressing:
the presumption that a fit parent acts in his or her childs best
interests;
the special weight that must be given to a fit parents decision to
deny or limit visitation;
whether the grandparent has established that visitation is in the childs best interests;
and
whether the parent has denied visitation or has simply limited visitation.
783 N.E.2d 752, 757 (Ind. Ct. App. 2003). We added that the
trial court may consider whether a grandparent has had or has attempted to
have meaningful contact with the child. Id.
The trial court expressly entered findings of fact and conclusions thereon, therefore satisfying
the requirements of T.R. 52 and I.C. § 31-17-5-6, so we must determine
whether the trial court complied with the more specific requirements of McCune.
An examination of the trial courts order reveals that first, the trial court
noted that a presumption exists that [Mothers] decision is in [the Childrens] best
interests, and second, it acknowledged that [Mothers] decision to prevent any visitation by
[Grandparents] must, of course, be given special weight. Appellants Appendix at 5-6.
Third, the trial court entered findings that supported its conclusion that Grandparents
visitation is in the Childrens best interests. For example, the trial court
found that following G.W.s birth, Mother and Father moved in with Grandparents, and
Grandmother was actively involved in the hands on care of [G.W.] from birth
until the three left [Grandparents] home in December of 2000 and took up
residency in Carriage House Apartments. Id. at 4. The trial court
also found that after J.W. was born, Mother, Father, and the Children, once
again, moved in with Grandparents, and that after Mother and Father separated, Grandparents
would visit the Children during Fathers parenting time periods. The trial court
also found that after Fathers death Grandmother asked Mother if she could see
the Children. While Mother initially agreed, she never allowed Grandmother to visit
with the Children, despite Grandmothers repeated requests to see the Children. The
trial court also included some of Grandmothers testimony, wherein she expressed a desire
to have a relationship with the Children and be a part of their
lives because both sides make a whole. Id. at 5. The
trial court ultimately concluded that [t]he greater weight of the evidence: . .
. supports the proposition that visitation with their paternal grandparents is in [the
Childrens] best interests. Id. at 6. The trial court also addressed
Mothers reasons for denying Grandparents visitation, concluding that such reasons were unfounded.
Id. at 6. Finally, the trial court entered findings indicating that Mother
had completely denied Grandparents visitation with the Children as opposed to simply limiting
Grandparents visitation. Specifically, the trial court found that shortly after J.W.s birth,
[Grandmothers] visits with [the Children] came to an abrupt end. Id. at
4. Again, the trial court also found that after Fathers death Mother
has allowed no contact between Grandparents and the Children, despite Grandmothers repeated requests
to see the Children.
Based upon our review of the trial courts order, we conclude that the
trial court complied with the requirements of the Act, T.R. 52(A)(3), and McCune.
The trial court did not fail to make specific findings of fact
and conclusions thereon, explaining why Grandparents visitation is in the Childrens best interests.
In summary, the trial court did not fail to accord a presumption in
favor of Mothers decision to deny visitation. Rather, it weighed the evidence
and concluded that Mothers reasons for denying visitation were unfounded. Moreover, the
trial court did not fail to make specific findings of fact and conclusions
thereon, explaining why Grandparents visitation is in the Childrens best interests. Therefore,
the trial courts order granting Grandparents visitation with the Children is not clearly
erroneous.
For the forgoing reasons, we affirm the judgment of the trial court awarding
Grandparents visitation rights with the Children.
Affirmed.
DARDEN, J. and ROBB, J. concur
Footnote:
T.R. 52(A)(3) provides that:
In the case of issues tried upon the facts without a jury or
with an advisory jury, the court shall determine the facts and judgment shall
be entered thereon pursuant to Rule 58. Upon its own motion, or
the written request of any party filed with the court prior to the
admission of evidence, the court in all actions tried upon the facts without
a jury or with an advisory jury (except as provided in Rule 39[D])
shall find the facts specially and state its conclusions thereon. The court
shall make special findings of fact without request
* * * * *
(3) in any other case provided by these rules or by statute.