In re: The Grandparent Visitation of C.S.N.: Brooke Neuhoff v. Scott A. Ubelhor and Angela S. Ubelhor , 14 N.E.3d 753 ( 2014 )

FOR PUBLICATION
ATTORNEYS FOR APPELLANT: ATTORNEY FOR APPELLEES:
WILLIAM J. KAISER MICHAEL H. HAGEDORN
MARGARET M. CHRISTENSEN Tell City, Indiana
Bingham Greenebaum Doll, LLP
Indianapolis, Indiana
Jul 15 2014, 10:17 am
IN THE
COURT OF APPEALS OF INDIANA
IN RE: THE GRANDPARENT VISITATION OF )
C.S.N.: )
)
BROOKE NEUHOFF, )
)
Appellant-Respondent, )
)
vs. ) No. 19A05-1311-MI-542
)
SCOTT A. UBELHOR and )
ANGELA S. UBELHOR, )
)
Appellee-Petitioners. )
APPEAL FROM THE DUBOIS CIRCUIT COURT
The Honorable William E. Weikert, Judge
Cause No. 19C01-1302-MI-117
July 15, 2014
OPINION - FOR PUBLICATION
RILEY, Judge
STATEMENT OF THE CASE
Appellant-Respondent, Brooke Neuhoff (Mother), appeals the trial court’s Order
awarding visitation with her minor child to the paternal grandparents, Appellees-
Petitioners, Scott A. Ubelhor (Grandfather) and Angela S. Ubelhor (Grandmother)
(collectively, Grandparents).
We reverse.
ISSUE
Mother raises one issue on appeal, which we restate as: Whether the trial court erred
in granting Grandparents’ Petition for Grandparent Visitation (Petition).
FACTS AND PROCEDURAL HISTORY
During her junior year of high school, Mother learned that she and her nineteen-
year-old boyfriend, Justin Ubelhor (Father), were expecting a baby. Just eleven weeks
before Mother gave birth, Father committed suicide. On June 8, 2010, by agreement
between Mother and Grandparents, the trial court entered an order establishing Father’s
paternity, and on June 17, 2010, Mother gave birth to a son, C.N. (the Child). Because
Mother was only seventeen years old when the Child was born, her parents (Maternal
Grandparents) were appointed as the Child’s guardians.1 Mother and the Child live in
Maternal Grandparents’ home in Huntingburg, Indiana.
In August of 2010, Mother returned to school for her senior year, and the Child was
enrolled in daycare. Mother continued her participation in extracurricular activities and
1
Maternal Grandparents’ guardianship over the Child was terminated on August 20, 2013.
2
graduated from high school with a grade point average of 3.9 on a 4.0 scale. Thereafter,
she enrolled in the University of Southern Indiana to study accounting. In addition to being
a full-time college student, Mother works for the accounting department of a large
remanufacturing company.
Following Father’s death, Mother maintained a close relationship with
Grandparents. Grandmother hosted a baby shower for Mother, and she was present during
the Child’s delivery. For nearly the first three years of the Child’s life, Mother made sure
Grandparents were involved in the Child’s baptism, birthday parties, holidays, and other
celebrations. Likewise, Grandparents invited Mother to attend their family events. In
addition to the special occasions, Mother took the Child for visits at Grandparents’ house
almost every Sunday. Although Mother stayed with the Child during the first few months
of his life, as he became older, she would sometimes leave for several hours so that she
could do homework, and Grandparents could enjoy their own time with the Child. The
Child never spent the night with Grandparents.
Sometime in January of 2013, Grandmother heard a rumor that Mother intended to
terminate Grandparents’ contact with the Child because Mother believed that Grandparents
“were low-life people[]” and “bad influences” who did not “deserve to be around [the
Child].” (Transcript p. 16). When confronted by Grandmother, Mother denied ever
making such statements and informed Grandmother that she “would never do that to
[Grandparents].” (Tr. p. 16). Unwilling to risk the chance that Mother might keep the
Child away from them, and because they wanted to have overnight visits with the Child,
Grandparents filed their Petition on February 22, 2013. For the next several weeks, despite
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Grandparents’ legal action, Mother continued to take the Child for his Sunday visits with
Grandparents.
Around this same time, Mother began to notice changes in the Child’s behavior
following his visits with Grandparents, specifically that the Child was crying more, acting
out, and being aggressive. The Child’s last visit with Grandparents occurred on Sunday,
March 17, 2013. When Mother picked the Child up from Grandparents’ house that
afternoon, she became concerned by the Child’s atypical behavior. Mother explained that
the Child
was crying and hitting and just terrified. . . . He cried for an hour and a half
straight. He wanted no one to touch him [and] [w]anted nothing to do with
anyone else. And then I . . . I started praying, and finally, he came up, and
he said, mama, hold me. And he was shaking and shivering and just seemed
really scared.
(Tr. pp. 67-68 (last alteration in original)). The next day, the Child had multiple potty-
training accidents at daycare, which was highly unusual for him, and that night, Mother
noticed that the Child had several bruises on his back. At this point, Mother decided to
discontinue the Child’s visitation with Grandparents. As a result, on April 12, 2013,
Grandparents filed an Emergency Petition for Grandparent Visitation, alleging that Mother
had retaliated against their Petition by denying them “all contact with [the Child] despite a
previous parenting time routine and relationship prior to the filing of this case.”
(Appellant’s App. p. 14). The trial court denied Grandparents’ Emergency Petition.
On August 15, 2013, the trial court conducted an evidentiary hearing on
Grandparents’ Petition. On October 8, 2013, the trial court issued its Order granting
visitation rights to Grandparents. In its findings of fact and conclusions thereon, the trial
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court concluded that “[i]t is in [the Child’s] best interest that he visit with [Grandparents].”
(Appellant’s App. p. 9). The trial court specified that, following a six-week transition
period consisting of both supervised and unsupervised visits, Grandparents are entitled to
unsupervised visitation time with the Child on alternating Sundays from 10:00AM to
6:00PM. On November 9, 2013, Mother filed a motion to stay the visitation Order pending
the outcome on appeal, which the trial court denied on December 10, 2013.
Mother appealed, and on April 4, 2014, our court issued a memorandum decision,
wherein we found that the trial court had failed to issue proper findings of fact and
conclusions of law. See In re Grandparent Visitation of C.S.N., No. 19A05–1311–MI–
542, 2014 WL 1356851 (Ind. Ct. App. Apr. 4, 2014). We retained jurisdiction, stayed the
visitation, and instructed the trial court to remit new findings and conclusions within thirty
days. On April 25, 2014, the trial court issued its Revised Order.
DISCUSSION AND DECISION
I. Standard of Review
In either granting or denying a petition for grandparent visitation, the trial court is
obligated to issue specific findings and conclusions in its decree. Ind. Code § 31-17-5-6.
Accordingly, we apply the two-tiered standard of review set forth in Indiana Trial Rule
52(A). First, we must consider whether the evidence supports the findings; second, we
determine whether those findings support the judgment. In re Visitation of M.L.B., 983
N.E.2d 583, 585 (Ind. 2013). We do not reweigh evidence or assess the credibility of
witnesses, and we consider the evidence and all reasonable inferences in favor of the trial
court’s judgment. Megyese v. Woods, 808 N.E.2d 1208, 1213 (Ind. Ct. App. 2004). We
5
will “not set aside the findings or judgment unless clearly erroneous.” Ind. Trial Rule
52(A). Regarding the factual findings, we “defer[] to the trial court’s superior opportunity
‘to judge the credibility of the witnesses.’” In re Visitation of M.L.B., 983 N.E.2d at 585
(quoting K.I. ex rel. J.I. v. J.H., 903 N.E.2d 453, 457 (Ind. 2009)). We will find the
judgment to be clearly erroneous if “the findings fail to support the judgment” or if “the
trial court applies the wrong legal standard to properly found facts.” Id.II. Grandparent Visitation Act
The “interest of parents in the care, custody, and control of their children [] is
perhaps the oldest of the fundamental liberty interests recognized by [the Supreme] Court.”
Troxel v. Granville, 530 U.S. 57, 65 (2000). As such, the Fourteenth Amendment
“provides heightened protection against government interference” in the right of parents
“to direct the upbringing of their children.” Id. In contrast, because “grandparents do not
have the legal rights or obligations of parents,” they “do not possess a constitutional liberty
interest in visitation with their grandchildren.” McCune v. Frey, 783 N.E.2d 752, 755 (Ind.
Ct. App. 2003). Rather, decisions about the level of grandparent involvement in the lives
of their grandchildren have historically been a matter of parental discretion. In re Visitation
of M.L.B., 983 N.E.2d at 585.
Nevertheless, states have recognized “that children should have the opportunity to
benefit from relationships with statutorily specified persons—for example, their
grandparents.” Troxel, 530 U.S. at 64. As a result, the Indiana General Assembly enacted
the Grandparent Visitation Act, which provides that there are limited circumstances under
which “[a] child’s grandparent may seek visitation rights.” I.C. § 31-17-5-1. In the present
6
case, Grandparents were entitled to file their Petition because Father is deceased, as well
as because the Child was born out of wedlock and Father’s paternity was established. See
I.C. § 31-17-5-1.
A trial court may grant grandparent visitation rights upon a determination that it
would be “in the best interests of the child.” I.C. § 31-17-5-2(a). In its evaluation of a
child’s best interests, a trial court “may consider whether a grandparent has had or has
attempted to have meaningful contact with the child.” I.C. § 31-17-5-2. However, this
consideration “is not the touchstone for determining the child’s best interests.” In re
Visitation of C.L.H., 908 N.E.2d 320, 328 (Ind. Ct. App. 2009). Because “a child’s best
interests do not necessarily override” the “fundamental constitutional right” of natural
parents “to direct their children’s upbringing without undue governmental interference,”
our courts have endeavored to “strik[e] a balance between parental rights and children’s
interests.” In re Visitation of M.L.B., 983 N.E.2d at 586. To this end, our court has
identified four factors that a trial court must consider in its decree granting or denying an
award of grandparent visitation:
(1) the presumption that a fit parent acts in his or her child’s best interests;
(2) the special weight that must be given to a fit parent’s decision to deny or
limit visitation;
(3) whether the grandparent has established that visitation is in the child’s
best interests; and
(4) whether the parent has denied visitation or has simply limited visitation.
McCune, 783 N.E.2d at 757. It was the trial court’s failure to address all four of these
“McCune Factors”—as they have come to be recognized—in its original Order that
necessitated our remand and clarification. See In re Visitation of M.L.B., 983 N.E.2d at
7
586. Having received the trial court’s revised findings and conclusions, we now address
Mother’s claim that, in light of her constitutional rights as a fit parent, the trial court clearly
erred in granting Grandparents’ Petition.
A. Fit Parent: Presumption and Special Weight
In evaluating the first and second McCune Factors, the trial court found, and
Grandparents concede, that Mother is a fit parent. Thus, the trial court acknowledged its
obligation to presume that Mother acted in the Child’s best interests in deciding to
discontinue the Child’s visits with Grandparents. In re Visitation of C.L.H., 908 N.E.2d at
328. “Acting under this presumption, courts must give special weight to a parent’s decision
to deny or limit visitation.” Id. However, the presumption favoring the parent is a
rebuttable one. Hicks v. Larson, 884 N.E.2d 869, 874 (Ind. Ct. App. 2008), trans. denied.
“Grandparents bear the burden of rebutting the presumption that [Mother’s] decision to
deny visitation was made in [the Child’s] best interests.” Id. at 874-75.
Here, the trial court concluded that Grandparents “have overcome the presumption
that [Mother], as a fit parent, acted in the Child’s best interest when terminating visitation
on March 17, 2013, and by refusing to reinstate visitation during the period March 17,
2013[,] down to and inclusive of August 15, 2013.” (Revised Order p. 10). Mother and
Grandparents now disagree about whether Grandparents presented sufficient evidence to
overcome “the significant burden of proof grandparents must carry to override [parental]
decisions.” In re Visitation of M.L.B., 983 N.E.2d at 587. Mother asserts that the trial court
inappropriately “inserted itself into the decision-making as to [the Child’s] best interests,
despite there being no reason to second guess [her] decisions.” (Appellant’s Br. p. 15).
8
Conversely, Grandparents argue that Mother is merely “seeking to have the evidence
reweighed and considered in a light most favorable to her.” (Appellees’ Br. p. 12).
Because the trial court awarded Grandparents less visitation time than they had under their
prior routine, Grandparents further contend that Mother “can hardly claim that the trial
court is unduly interfering in her fundamental right to [direct the Child’s] upbringing.”
(Appellees’ Br. p. 14).
During the trial, Mother cited several reasons in support of her decision to cease the
Child’s visits with Grandparents. In addition to the Child’s worrisome behavior following
his last visit with Grandparents, Mother’s other concerns included: Grandfather’s prior
convictions for manufacturing methamphetamine and for domestic battery against
Grandmother; Grandparents’ exhibitions of aggression and hostility, such as Grandfather’s
physical altercations with Father and Grandmother’s screaming match with a stranger in
front of the Child; Grandparents’ use of prescription drugs; and the unrelated individuals
whom Grandmother had permitted to temporarily reside in the house despite their illicit
drug use. While Mother’s decision must be accorded special weight, the trial court is under
no obligation to accept Mother’s proffered explanation for restricting or denying the
visitation “as necessarily true.” Hicks, 884 N.E.2d at 875. Instead, the trial court is charged
with hearing and weighing the evidence and determining whether Mother’s justification
for terminating Grandparents’ visitation is valid. Id.Contemplating Mother’s proffered reasons, the trial court “place[d] little, if any,
weight” on Grandfather’s convictions because they “were more than twelve and thirteen
years old by the time of trial.” (Rev. Order pp. 7-8). The trial court also found that
9
Grandparents “have a good relationship”; it is no longer possible for any conflicts to occur
between Grandfather and Father; Grandparents are prescribed medications for diagnosed
medical conditions and follow their physicians’ instructions; and “[t]he transient
individuals have left the home.” (Rev. Order p. 8). Additionally, because Mother had “full
knowledge of all [of these] facts/events” at “the time she approved of, promoted and even
fostered the healthy and meaningful relationship” between the Child and Grandparents, the
trial court gave little credence to Mother’s reasons for ceasing visitation. (Rev. Order p.
9). With respect to the Child’s concerning behavior, the trial court found, in part:
23. Despite [Mother’s] concerns, no evidence was produced that [the
Child] was injured at [Grandparents’] home, no evidence was
produced that [the Child’s] unusual behavior or accidents at day care
were the result of events that had occurred during grandparent
visitation, and no evidence was produced identifying the source of the
bruises resembling fingerprints discovered the following Monday
while bathing [the Child] after attending day care. A police report
was not filed. [The Department of Child Services] was not called.
[Mother] did not inquire of [Grandparents] if [the Child] had been
injured at their home.
****
38. Both experts, the [guardian ad litem] and [Mother’s] therapist, Alice
Berger [(Berger)], testified that there was no information indicating
that [the Child] would not be safe with [Grandparents].
39. [Mother] did not discuss [the Child’s] unusual conduct with
[Grandparents] to determine if something had happened during
visitation on March 17, 2013[,] that was responsible for the conduct.
[Mother] assumed that something had happened and as a result
terminated visitation. [Mother’s] decision was based, in part, on
speculation.
****
10
49. [Berger’s] testimony that “something happened to change the
[C]hild’s behavior” cannot be attributed to [Grandparents]. [Berger]
did not identify a reason for the change in behavior. Attributing the
change to [Grandparents] is without a factual basis and is based on
conjecture.
(Rev. Order pp. 6, 9, 11).
We are mindful of the deference to be accorded to the trial court regarding the
weight of the evidence and assessment of witness credibility. However, by citing Mother’s
failure to prove misconduct by Grandparents, the trial court improperly shifted the burden
to Mother to establish that she acted in accordance with the Child’s best interests.
Furthermore, we find that the failure of the trial court to mention certain evidence in its
findings “shakes our confidence that it actually afforded [Mother] the presumption” and
found that Grandparents presented sufficient evidence to overcome it. Ramsey v. Ramsey,
863 N.E.2d 1232, 1239 (Ind. Ct. App. 2007).
First, with the exception of an out-of-context statement by Mother’s therapist,
Berger, that there is no reason to believe the Child would be in danger at Grandparents’
house, the trial court omits from its findings the remainder of Berger’s opinion. Berger
testified that Mother noticed a change in the Child’s behavior surrounding the date that
Grandparents filed the Petition, explaining Mother’s concern that the Child cried more and
acted aggressively following visits with Grandparents. Berger agreed that she did not see
any safety problems with the recommendation of the guardian ad litem but noted that she
had never met Grandparents. Because of Grandfather’s past domestic violence, Berger
recommended supervised visits in order to see the interaction between Grandparents and
the Child. Berger also stated that Mother never accused Grandparents of mistreating the
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Child; rather, “[Mother and Maternal Grandmother] noticed what [the Child] was saying
to them about [Grandparents], and he was also having some difficulty after he left with his
behavior. Things he said. And also having loose stools, etcetera.” (Tr. p. 134). Because
Mother had explained that visitation had always gone very well, but then “suddenly it
didn’t[,]” Berger was concerned that something had interfered to cause such a change in
the Child’s behavior. (Tr. p. 134). As a result, Berger told Mother that, “until she got to
the bottom of it, it might be a good idea” to stop visitation during the pendency of the case.
(Tr. p. 136). Therefore, regardless of whether the evidence proves that Grandparents were
responsible for the Child’s behavior, the undisputed evidence establishes that Mother’s
decision to stop the visitation was based on a rational concern and was made after
consulting with her therapist.
Second, the trial court’s findings do not reflect a consideration of the reasons
proffered by Grandparents for filing the Petition. During the trial, Grandparents stated that
a primary motivator for filing the Petition was to secure overnight visits with the Child.
According to Grandfather,
We . . . told [Mother], you know, that we filed [the Petition]. We didn’t want
the papers just coming through the mail and be a surprise. And, you know,
we told her we didn’t want no arguments. We didn’t want a fight. We didn’t
want to drag this stuff out like this. We just wanted to keep him overnight.
(Tr. p. 84). Grandmother expressed a similar sentiment in the following colloquy at trial:
Q. You have testified that you’ve been involved in all of these events.
[Mother] would bring [the Child] to your house on Sundays. And
even with all of that, you petitioned for grandparent visitation,
correct?
A. Yes.
Q. Because you want more time than that?
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A. Yeah, we want overnight stays with him.
Q. And that’s the reason why you petitioned for the grandparents’
visitation?
A. That is the reason, and . . . they kept cutting our time shorter with him.
There was never a set time.
(Tr. p. 34). Our court has previously found that grandparents are not automatically entitled
to “to have the type of visitation they want.” Swartz v. Swartz, 720 N.E.2d 1219, 1222-23
(Ind. Ct. App. 1999). Here, although the trial court did not address this evidence, it is
apparent that Grandparents filed their Petition, in significant part, to override Mother’s
parental decision-making regarding overnight visits.
Grandmother also testified that one month before filing the Petition, she heard a
rumor from a friend (who had learned it from someone else) that Mother intended to sever
Grandparents’ ties with the Child. The trial court found that
[Mother] denied the statements and told [Grandmother] that she would never
do that (even though she had been progressively reducing the amount of time
[Grandparents] spent with [the Child]). [Mother] was informed that
[Grandparents] had consulted with an attorney for their protection. [Mother]
and [Maternal Grandparents] were invited to sit down and discuss the issues
but they would never speak about it. The instant litigation ensued following
this conversation and invitation.
(Rev. Order p. 5). We first note that Grandmother actually testified that she invited Mother
and Maternal Grandmother “to sit down and discuss this matter” after she and Grandfather
had filed the Petition. (Tr. p. 17). Despite its condemnation of Mother’s decision to
terminate visitation “based, in part, on speculation[,]” the trial court validated
Grandparents’ decision to sue for visitation rights based on an unverified, distant rumor
and speculation that Mother might decrease their visits with the Child. (Rev. Order p. 9).
As we have repeatedly held, courts cannot “infringe on the fundamental right of parents to
13
make childrearing decisions simply because a state judge believes a ‘better’ decision could
be made.” Crafton v. Gibson, 752 N.E.2d 78, 96 (Ind. Ct. App. 2001) (quoting Troxel, 530
U.S. at 72-73).
Finally, noticeably absent from the trial court’s findings is a consideration of the
fact that, by filing a lawsuit against Mother, Grandparents contributed to the parties’
discord and certainly did nothing to make Mother feel more comfortable about leaving the
Child alone in their care. See In re Visitation of C.L.H., 908 N.E.2d at 329. The undisputed
evidence reveals that Mother and Grandparents alike sensed the tension and hostility
resulting from the inexplicable decline of their relationship. Nonetheless, Mother
continued to drive the Child to Grandparents’ house every Sunday, even for several weeks
after Grandparents filed for visitation rights. Acknowledging that the Child exhibited
concerning behavior following his last visit with Grandparents, the trial court found
Mother’s decision to cease visitation was unreasonable because she “assumed” that
Grandparents were the cause without undertaking to investigate the actual reason. (Rev.
Order p. 12). In light of Grandparents’ significant burden to prove Mother’s decision was
contrary to the Child’s best interests, along with the hostile environment, the correlation of
the Child’s unusual behaviors with visitation days, and the lawsuit, we find the trial court
clearly erred as its findings do not indicate that it considered the totality of the
circumstances in determining that Mother’s decision to restrict visitation was
unreasonable.
B. Denial or Limitation of Visitation
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Regarding its analysis of the fourth McCune Factor, the trial court concluded that
Mother had “unreasonably denied visitation on March 17, 2013, and that the denial
continued through the trial date on August 15, 2013.” (Rev. Order p. 12). According to
Mother, “the record is uncontroverted that [she] had involved [Grandparents] in [the
Child’s] life since his birth without any court order, and that she expressed every intention
of doing so going forward.” (Appellant’s Br. p. 17). Conceding that Mother involved them
in the Child’s life for nearly three years, Grandparents assert that when their relationship
with Mother began deteriorating near the end of 2012, their “[v]isitation times kept getting
cut shorter and shorter.” (Appellees’ Br. p. 13).
Pursuant to McCune, the trial court must “give some weight to the fact that a parent
has agreed to some visitation.” Megyese, 808 N.E.2d at 1213. This factor is significant
because “once a parent agrees to some visitation, the dispute is no longer over whether the
grandparent will have any access to the child, but instead over how often and how much
visitation will occur.” Crafton, 752 N.E.2d at 97. Where a parent has denied all visitation,
the grandparent must “pursu[e] the right to have a relationship with the child.” Id. Thus,
“the case for judicial intervention” is strengthened. In re Visitation of M.L.B., 983 N.E.2d
at 587. However, where there is merely a “disagreement between parent and grandparent
over how much access is appropriate[,]” judicial intervention is more likely to infringe
upon the parent’s fundamental right. Id.; Crafton, 752 N.E.2d at 97.
In this case, we find it clear that the trial court accorded no weight to the fact that
Mother permitted Grandparents to have regular contact with the Child for the first three
years of his life and did not suspend the visitation until three weeks after Grandparents
15
filed the Petition. The trial court found that Mother’s denial was unreasonable in light of
a previous “routine [that] involved weekly visits at a minimum”; yet, the trial court failed
to credit Mother for the fact that she initiated and maintained that weekly visitation regime
without the court compelling her to do so. (Rev. Order p. 12). See In re Visitation of
M.L.B., 983 N.E.2d at 587. Even during the trial, Mother did not argue that Grandparents
should be denied all visitation; instead, she asserted her preference that visitation occur
once per month, for four to six hours, with no overnight stays and with supervision.
As we have stated, there is a significant difference in situations where a
grandparent’s visitation has been merely reduced versus denied entirely. Here, where the
dispute “is not whether [the Child] and [Grandparents] will have a relationship but on
whose terms it will be, there is no need for court intervention into [Mother’s] decisions as
a fit parent.” (Appellant’s Br. p. 17). Accordingly, the trial court’s finding that Mother
denied all contact between the Child and Grandparents is clearly erroneous based on the
substantial evidence that Mother did not restrict Grandparents’ visitation privileges until
after they had filed the Petition. Furthermore, even considering that Mother terminated all
visitation between the filing of the Petition and the trial, the trial court erred by conferring
no weight to Mother’s acknowledgment that the Child should continue to have a
relationship with Grandparents.2 The trial court’s Order/Revised Order awarding visitation
to Grandparents is hereby vacated, and Mother’s discretion to determine the level of
2
We do not address the third McCune Factor regarding the Child’s best interests because Mother does
not dispute that it is in the Child’s best interests to have a relationship and spend time with Grandparents.
Rather, it is Mother’s position that she—not Grandparents—has the constitutional right to establish the
parameters of the visitation.
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Grandparents’ visitation in accordance with her parental rights and the Child’s best
interests is restored.
CONCLUSION
Based on the foregoing, we conclude that the trial court clearly erred by awarding
visitation to Grandparents.
Reversed.
MAY, J. concurs
VAIDIK, C. J. dissents with separate opinion
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_______________________________________________________
IN THE
COURT OF APPEALS OF INDIANA
IN RE: THE GRANDPARENT VISITATION )
OF C.S.N.: )
)
BROOKE NEUHOFF, )
)
Appellant-Respondent, )
)
vs. ) No. 19A05-1311-MI-542
)
SCOTT A. UBELHOR and )
ANGELA S. UBELHOR, )
)
Appellees-Petitioners. )
VAIDIK, Chief Judge, dissenting.
18
The majority concludes that the trial court erred by awarding visitation to Scott and
Angela Ubelhor (“Grandparents”). Because I believe the trial court did not err, I
respectfully dissent.
Justin Ubelhor, Grandparents’ son, committed suicide in 2010. Less than two
months later, Brooke Neuhoff (“Mother”) gave birth to their son, C.N. For nearly three
years after C.N. was born, C.N. and Mother enjoyed, by all accounts, a healthy and loving
relationship with Grandparents. Grandparents were present at C.N.’s birth and baptism.
They attended C.N.’s birthday parties and spent time with C.N. during the holidays and at
other family celebrations. And every Sunday, Mother would bring C.N. to Grandparents’
home, where he would spend the day with Grandparents.
Things began to change in January 2013, when Mother’s friend told Grandparents
that Mother intended to terminate their relationship with C.N. because they were “low-life
people[],” “bad influences,” and “[didn’t] deserve to be around [C.N.].” Tr. p. 16. Mother
later denied saying such things. In February, Grandparents filed a petition for grandparent
visitation. Appellant’s App. p. 11-12.
For three weeks after Grandparents filed their petition, Mother continued to bring
C.N. to Grandparents’ home for Sunday visits. But when Mother suddenly cut off all
contact between Grandparents and C.N. in March 2013, Grandparents filed an emergency
petition for visitation. Id. at 13-14. The trial court denied the emergency request and set
the matter for a hearing in August 2013.
19
At the hearing, Grandmother described the relationship between C.N. and
Grandparents:
It was amazing. We got to see [C.N.] every weekend. Sometimes we would
actually see him more than one day. Sometimes, if we would get lucky, we’d
have him Friday, Saturday, and Sunday. If he would get sick, there would be
times that my daughter or I stayed home with him because [C.N.’s maternal
grandmother] had to work and [Mother] had school. It was an amazing . . . I
mean, every weekend we had this little boy.
Tr. p. 12-13. When C.N. visited, Grandparents would make his favorite breakfast, watch
movies, play with blocks and puzzles, and play outdoors on the swing set. Id. at. 18.
Grandmother described C.N. as a loving and affectionate “papa’s boy” who always wanted
his grandfather’s attention. Id. at 20.
Mother testified that she stopped allowing Grandparents to visit with C.N. because
he acted out after a visit with them in March 2013. Id. at 67. She also testified that C.N.
had four accidents at day care following his last visit with Grandparents, and after she
picked him up from day care, Mother noticed three bruises on his back. Id. at 51-52, 68.
Mother admitted that she did not know the source of the bruises and never asked
Grandparents or C.N.’s day-care provider about them. Id. at 53, 75. Mother also noted
other concerns, including Grandfather’s two criminal convictions from twelve years earlier
and both Grandparents’ use of prescribed medications; however, Mother acknowledged
that she knew these things before C.N.’s birth and nonetheless fostered C.N.’s relationship
with Grandparents. Id. at 70-74. When asked what visitation she would allow in the future,
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Mother said Grandparents could have supervised visitation with C.N. once a month, for
four to six hours.
Mother’s therapist also testified. She had consulted the guardian ad litem (GAL)
assigned to the case, and neither had concerns about Grandparents spending time with C.N.
Both recommended that Grandparents be granted visitation. Id. at 129-30.
The trial court ruled in Grandparents’ favor, and Mother appealed. On appeal, we
remanded for the trial court to enter the required findings and conclusions. On remand, the
trial court articulated its reasoning for granting Grandparents visitation with C.N. The
court discussed C.N.’s relationship with Grandparents and Mother’s concerns about
Grandparents:
[Grandparents] love [C.N.] very much. They are [C.N.’s] link to his father,
and that is a big part of who [C.N.] is. [C.N.] has had a happy, healthy
relationship with [Grandparents] during the past 2 years and 9 months.
* * * * *
Prior to the filing of the Petition[,] [Mother] never complained of the manner
in which [C.N.] was treated in [Grandparents’] home, except for the
occasional sweets given to him. [C.N.] had never been injured. There was no
physical discipline. [Mother’s] only complaint concerning [C.N.’s] care and
safety was registered after the Petition had been filed, at which time [Mother]
terminated [C.N.’s] relationship with [Grandparents].
Revised Order p. 5-6 (formatting altered). The court found that there was no evidence that
C.N. had been harmed while in Grandparents’ care:
There is no evidence that [Grandparents] were responsible for [C.N.’s]
unusual behavior on March 17, 2013, the potty accidents at day care, or the
bruising discovered during the bath on March 18, 2013. The[se] events . . .
were isolated in nature, when considered in the context of the positive and
21
flourishing relationship enjoyed by [C.N.] and [Grandparents] over the past
2 years and 9 months.
* * * * *
[Mother] did not discuss [C.N.’s] unusual conduct with [Grandparents] to
determine if something had happened during visitation . . . that was
responsible for the conduct. [Mother] assumed that something had happened
and as a result terminated visitation. [Mother’s] decision was based, in part,
on speculation.
Id. at 9 (emphasis added, formatting altered).
The court also acknowleged that Mother was a fit parent but expressed concern
about whether she would allow C.N. to have a relationship with Grandparents absent a
court order. See id. at 10 (“[Mother] told the GAL that she prefers [Grandparents] not have
any contact with [C.N.] at this time.”); 10-11 (“There is no reason, based on the evidence
introduced at the trial of this cause, to believe that [Mother] will voluntarily reestablish the
grandparent-grandchild relationship without a court order.”). The court also noted that
although Mother expressed concern about C.N.’s safety with Grandparents, the GAL and
Mother’s therapist did not share these concerns; in fact, they recommended that C.N. spend
time with Grandparents. Id. at 11. Finally, the court concluded:
[Mother’s] testimony of her concerns about [Grandparents] is in conflict with
her actual behavior over the past two years and nine months while fostering
and promoting [C.N.’s] relationship with [Grandparents]; the decline in her
relationship with [Grandparents] provide[d] an excuse to stop the
grandparent visitation; and, there was no effort on [Mother’s] part to discuss
and resolve any of the purported concerns she now expresses at the time the
concerns allegedly occurred.
[Mother’s] termination of the flourishing and healthy relationship between
[C.N.] and [Grandparents] may affect [C.N.’s] emotional development and
22
the bond established beginning with his birth [and continuing] to the date on
which she terminated the visitation, especially in light of the
recommendations made by the GAL and [Mother’s therapist]. [Mother’s]
decision interrupted a routine [C.N.] enjoyed[,] which was not in his best
interests.
Id. The court found that Grandparents had presented sufficient evidence to “overcome the
weight of [Mother’s] decision-making authority,” and had established that visitation was
in C.N.’s best interests. Id. at 12.
Indiana’s Grandparent Visitation Act requires specific findings of fact and
conclusions. See Ind. Code § 31-17-5-6; In re Visitation of M.L.B., 983 N.E.2d 583, 585
(Ind. 2013). The reviewing court applies “the two-tiered Indiana Trial Rule 52 standard of
review”—we first determine whether the evidence supports the findings, and then whether
the findings support the judgment. M.L.B., 983 N.E.2d at 585 (citations omitted). “We set
aside findings of fact only if they are ‘clearly erroneous,’ deferring to the trial court’s
superior opportunity ‘to judge the credibility of the witnesses.’” Id. (citations omitted).
The trial court’s judgment is clearly erroneous when the findings do not support the
judgment, or “when the trial court applies the wrong legal standard to properly found
facts.” Id. (citations omitted).
Four factors, called the McCune factors, guide trial courts in the grandparent-
visitation context. When determining whether to grant grandparent visitation, a trial court
must address the following:
(1) a presumption that a fit parent’s decision about grandparent visitation is
in the child’s best interests (thus placing the burden of proof on the
petitioning grandparents);
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(2) the “special weight” that must therefore be given to a fit parent’s decision
regarding nonparental visitation (thus establishing a heightened standard of
proof by which a grandparent must rebut the presumption);
(3) “some weight” given to whether a parent has agreed to some visitation or
denied it entirely (since a denial means the very existence of a child-
grandparent relationship is at stake, while the question otherwise is
merely how much visitation is appropriate); and
(4) whether the petitioning grandparent has established that visitation is in
the child’s best interests.
Id. at 586 (citing McCune v. Frey, 783 N.E.2d 752, 757-59 (Ind. Ct. App. 2003)).
“The first three [McCune] factors implement the constitutionally protected right of
fit parents to make child rearing decisions, and reflect the significant burden of proof
grandparents must carry to override those decisions.” Id. There is no dispute that Mother
is a fit parent; thus, her decision regarding grandparent visitation is presumed to be in
C.N.’s best interests. The trial court acknowledged this presumption but found that
Grandparents had rebutted it, and I agree.
It is well settled that a trial court is required to give special weight to a fit parent’s
decision regarding grandparent visitation. But this requirement does not mean that a trial
court must take at face value any explanation given by a parent. K.L. v. E.H., 6 N.E.3d
1021, 1032 (Ind. Ct. App. 2014) (citation omitted). “The trial court 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. “[I]t is the trial court’s prerogative to listen
to the evidence and determine whether a parent’s alleged justification for denying or
restricting visitation with grandparents holds water.” Id.24
The trial court ultimately determined that Mother’s justification for denying
Grandparents visitation did not, in fact, hold water. The trial court’s lengthy findings,
summarized here, explain why this is so:
 By all accounts, C.N. and Grandparents enjoyed a healthy and happy
relationship and an established a routine of visitation for nearly three
years before Mother terminated visitation
 Mother disrupted this routine and threatened C.N.’s emotional health by
cutting off all contact between C.N. and Grandparents
 Grandparents offer C.N. a link to his deceased father
 There was no evidence that Grandparents were responsible for C.N.’s
change in behavior after a March 2013 visit
 Mother’s other concerns—such as Grandfather’s criminal convictions
from twelve years ago and Grandparents’ authorized use of prescription
medication—existed well before C.N.’s birth, and Mother fostered a
relationship between C.N. and Grandparents despite this
 The GAL and Mother’s therapist had no concerns about C.N.’s safety in
Grandparents’ care and recommended that Grandparents be granted
visitation with C.N.
Citing the “amazing family relationship filled with love and affection” that C.N. enjoyed
with Grandparents before this litigation, the court also determined that visitation was in
C.N.’s best interests. Revised Order p. 3-4, 12. Notably, although Mother testified at trial
that she would be willing to allow visitation under limited circumstances, the trial court
found that “there [was] no reason . . . to believe that [Mother] will voluntarily reestablish
the grandparent-grandchild relationship without a court order.” Id. at 10-11. In light of
the foregoing evidence, and deferring to the trial court’s superior opportunity to judge the
credibility of the witnesses, I would find that the court did not abuse its discretion in
granting Grandparents’ petition.3
3
As our Supreme Court stated in M.L.B., the “Grandparent Visitation Act contemplates only
occasional, temporary visitation that does not substantially infringe on a parent’s fundamental right to
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Finally, the majority discusses Grandparents’ decision to file a petition for visitation
at length. Slip op. p. 12-14. The majority states that “by filing a lawsuit against Mother,
Grandparents contributed to the parties’ discord and did nothing to make Mother feel more
comfortable about leaving the child alone in their care.” Id. at 14. This sentiment gives
me pause. At the time they filed their petition, Grandparents had no legal right to spend
time with C.N., the only child of their deceased son. To Mother’s credit, she had previously
allowed Grandparents to spend time with C.N., but Mother’s relationship with
Grandparents had rapidly deteriorated in the months leading up to Grandparents’ filing.
Making matters worse, Grandparents heard that Mother intended to terminate their
relationship with C.N. A grandparent-visitation petition was Grandparents’ exclusive
means by which to safeguard their right to continue their relationship with their grandson.
The fact that Grandparents chose to take this action should not be held against them.
For these reasons, I respectfully dissent and would affirm the trial court.
control the upbringing, education, and religious training of their children.” 983 N.E.2d at 586. The
visitation awarded in this case—two hours per week at first, and eight hours every other Sunday at most—
is of the type contemplated by the Act.
26