In the Matter of the Guardianship of J.W., Elaine Kuhns v. Britton and Hollie Shoellhorn (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing FILED
the defense of res judicata, collateral Jun 25 2020, 10:27 am
estoppel, or the law of the case. CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEES
Jonathan R. Deenik Heather L. George Myers
Deenik Lowe, LLC Greenwood, Indiana
Greenwood, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the June 25, 2020
Guardianship of J.W., Court of Appeals Case No.
19A-GU-2813
Elaine Kuhns,
Appeal from the Johnson Circuit
Appellant-Intervenor, Court
v. The Honorable Andrew S.
Roesener, Judge
Britton and Hollie Shoellhorn, Trial Court Cause No.
41C01-1708-GU-129
Appellees-Petitioners.
Bradford, Chief Judge.
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Case Summary
[1] Since 2017, J.W. has been under the guardianship of Britton and Hollie
Shoellhorn. In August of 2018, the Shoellhorns and J.W.’s paternal
grandparents, Dan Koebler and Elaine Kuhns, entered into an agreement (the
“Agreed Entry,”) which established the Shoellhorns as J.W.’s guardians and
granted Koebler and Kuhns, inter alia, visitation and communication with J.W.
and the ability to participate in her counseling/therapy. In February of 2019,
the Shoellhorns moved to modify the Agreed Entry. Following an evidentiary
hearing, the trial court modified Koebler and Kuhns’s visitation and allegedly
modified their ability to participate in J.W.’s counseling. Kuhns contends that
the trial court’s modification order was erroneous.1 Because we disagree, we
affirm.
Facts and Procedural History
[2] J.W.’s biological father was killed while serving in the military. J.W.’s mother
married Jason Wojcik, who also was Kuhns’s son, and he subsequently adopted
J.W. It is believed that Wojcik murdered J.W.’s mother and then took his own
life. Following the deaths of her parents, J.W. began living with the Shoellhorns
in 2017. Around that time, the Shoellhorns, Koebler, and Kuhns engaged in a
1
Koebler does not participate in this appeal.
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custody/guardianship dispute regarding J.W.2 On August 3, 2018, the parties
resolved the dispute under the Agreed Entry, which formally established the
Shoellhorns as J.W.’s guardians and granted Kuhns visitation rights as follows:
During the pendency of the guardianship, it is the parties’
intention that the family members listed as Parties herein shall
have regular visitation with [J.W.] The family members
designated as Parties for purposes of sharing visitation shall
include the Barbers, the Chemsaks, the Grigsbys, and Dan
Koebler and Elain Kuhns (hereinafter “Family Members”).
Britton and Hollie Shoellhorn shall be designated as the custodial
parents for purposes of the Indiana Parenting Time Guidelines.
The parties agree that all Family Members herein shall share the
time set forth in the IPTG for a non-custodial parent, with
modifications as set forth herein. Due to the distance between the
Parties, this shall not include midweek visits. During the school
year, the Parties shall modify the IPTG to provide that Family
Members shall exercise their weekend visitation during the first
and second weekends of each month. During the school year, the
Family Members shall use their best efforts to ensure that [J.W.]
completes her schoolwork during their weekend visitation. The
parties agree that Mother’s Day and Father’s Day shall be with
the Shoellhorns. Holidays shall take precedence over regularly
scheduled visitation. If the Family Members wish to exercise any
holidays which are only one day in the IPTG, they must exercise
those holidays within [J.W.’s] community. The guardians and
the Family Members will use their best efforts to divide summer
visitation in a manner which will allow [J.W.] to participate in
camp and school activities. It shall be the responsibility of the
Family Members to reach agreement on the Family Members’
division of the allocated visitation. If the Family Members cannot
2
Jacob and Anna Chemsak, Harry and Becky Barber, and Teresa Grigsby were also engaged in the dispute
and obtained visitation rights; however, they do not participate in this appeal.
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reach agreement on the division of allocated visitation, they may
elect to utilize a parenting coordinator if they so agree.
Appellant’s App. Vol. II p. 41. The Agreed Entry also stated that Kuhns “may
communicate with [J.W.’s] service providers to obtain information and
participate in [J.W.’s] plan as necessary and appropriate.” Id. at 43.
[3] On February 27, 2019, the Shoellhorns moved to modify the Agreed Entry after
Kuhns’s and Koebler’s allegedly inappropriate conduct resulted in J.W. having
“experienced increased symptoms of depression, vocalized suicidal ideations
and [] expressed great resentment for her grandparents.” Appellant’s App. Vol.
II p. 66. On July 31 and October 30, 2019, the trial court held an evidentiary
hearing regarding, inter alia, the Shoellhorns’ motion to modify the Agreed
Entry. Following the hearing, the trial court found the following:
5. It bears noting that the litigation preceding the acceptance of
the “Agreed Entry” was wrought by emotion and was marked by
discord and contentiousness.
6. This trend, unfortunately, continues to prevail as it relates to
[the Shoellhorns] and [Koebler and Kuhns].
7. The vast majority of the motions pending before the Court are
a direct result of the ongoing bellicosity between [the
Shoellhorns] and [Koebler and Kuhns].
8. [J.W.] continues to suffer as a direct result.
9. [J.W.] continues to participate in counseling/therapy with
Nicole Ryan and to receive case management services from
Linda Hershman.
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10. Ms. Ryan has been providing counseling/therapy services to
[J.W.] for two (2) years.
11. [J.W.] continues to need robust support and assistance from
both Ms. Ryan and Ms. Hershman.
12. [J.W.] is, presently, experiencing a period of equilibrium as it
relates to her mental health symptoms.
13. This occurrence is, however, very recent.
14. From roughly January of 2019 through May of 2019 [J.W.]
was articulating suicidal thoughts and ideations.
15. The acuteness of her symptoms required that she be admitted
into a partial hospitalization program through St. Vincent
Hospital and a subsequent intensive outpatient program.
16. The [Shoellhorns] have been vigilant in ensuring that [J.W.]
receives appropriate professional support for her conditions(s) as
well as genuine love and affection in their home.
[…]
22. The evidence presented at the hearing of this matter lays bare
the erosion of trust between [Koebler and Kuhns] and the
[Shoellhorns] and the resulting collapse of the mechanics of the
“Agreed Entry.”
23. The evidence supports the finding that visitation between
[J.W.] and [Koebler and Kuhns] has resulted in the exacerbation
of mental health symptoms in [J.W.]
24. [J.W.] has formed an opinion that [Koebler and Kuhns] and
the [Shoellhorns] are at odds with one another. (An opinion that
is supported by the evidence presented herein.).
25. [J.W.’s] mental health condition(s) can produce episodes of
physical and verbal aggression. Examples of this aggression are
numerous. Two (2) examples are provided below:
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a. [J.W.] has lashed out physically and emotionally toward
the [Shoellhorns,] including an episode wherein [J.W.]
attempted to assault Britton Shoellhorn with a hammer.
b. [J.W.] has verbally attacked [Koebler and Kuhns]
during a telephone conversation.
26. Nicole Ryan has expended significant time attempting to
ameliorate the regression in [J.W.’s] emotional state as a result of
her visitation and communication with [Koebler and Kuhns]. (It
bears noting that not every instance of visitation or
communication with [Koebler and Kuhns] produces exacerbated
mental symptoms in [J.W.] It is true, however, that a not
insignificant number of visitations and communications between
[Koebler and Kuhns] and [J.W.] have resulted in harmful mental
health consequences for [J.W.]).
27. Linda Hershman frequently spends thirty (30) minutes
preparing [J.W.] for telephone calls with [Koebler and Kuhns].
28. [J.W.] feels that [Koebler and Kuhns] do not “hear” her and
are attempting to take her away from the [Shoellhorns].
29. These beliefs have caused a great deal of angst on the part of
[J.W.] and have certainly contributed to the difficulties in the
relationship between [J.W.] and [Koebler and Kuhns].
30. It is [J.W.’s] desire to remain in the home of the
[Shoellhorns].
31. [J.W.] has formed a strong and positive bond with the
[Shoellhorns].
32. The [Shoellhorns] have articulated a desire to adopt [J.W.]
(Any petition to adopt [J.W.] is prohibited for a period of thirty
(30) months pursuant to the terms of the “Agreed Entry”.)
33. The evidence supports the finding that the work done by
Nicole Ryan and Linda Hershman was, for lack of a better
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description, “undone” following some visits and phone calls
between [J.W.] and [Koebler and Kuhns].
34. Certain examples from the hearing provide examples of the
issues arising following communications between [J.W.] and
[Koebler and Kuhns] as well as the disconnect that has occurred
during communications:
a. [J.W.] became suicidal in January 2019 following her
Christmas/New Year’s visitation with [Koebler and
Kuhns];
b. A March 2019 phone call between [J.W.] and Elaine
Kuhns became heated when [J.W.] refused to
acknowledge Ms. Kuhns’ birthday and refused to sing
“Happy Birthday” on the phone. Ms. Kuhns, frustrated,
terminated the phone call. [J.W.] was emotionally
distressed as a result and stated she wished Ms. Kuhns was
dead;
c. During a phone conversation in the Spring of 2019
between [J.W.] and [Koebler and Kuhns,] [J.W.] became
highly agitated. [J.W.] expressed suicidal thoughts, stated
that [Koebler and Kuhns] were mean to the [Shoellhorns;]
and, among other statements, referred to Ms. Kuhn’s [sic]
as a liar and not her real grandmother. [Koebler and
Kuhns] became defensive and upset and, as a result, the
call was abruptly terminated.
35. The above annotated examples are not the only examples of
acrimony, but are illustrative of the fragility of [J.W.’s] emotional
condition and how her contact with [Koebler and Kuhns] has, in
certain circumstances, operated to her detriment.
36. Nicole Ryan testified unequivocally that contact between
[J.W.] and [Koebler and Kuhns] should be supervised.
37. As events like those annotated in paragraph thirty-four (34)
have occurred, the [Shoellhorns] have become more protective of
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[J.W.] and the relationship between the [Shoellhorns] and
[Koebler and Kuhns] has deteriorated.
38. The [Shoellhorns,] by fiat, imposed restrictions and limited
the contact and communication between [Koebler and Kuhns]
and [J.W.] in contravention of the “Agreed Entry” of August 3,
2018.
39. The [Shoellhorns,] for example:
a. Refused to provide [Koebler and Kuhns] with
information about [J.W.’s] school;
b. Mandated a change in the location of the pick-up and
drop-off for visitation; and
c. Limited [Koebler’s and Kuhns’s] communication with
[J.W.]
40. These acts were done in willful defiance of the “Agreed
Entry” and are, therefore, contemptuous of that order.
41. As a result of the actions taken by the [Shoellhorns], [Koebler
and Kuhns,] in turn, became more agitated and aggressive
toward the [Shoellhorns].
42. For example, [Koebler and Kuhns] were a part in some or all
of six (6) welfare checks and/or complaints that targeted the
[Shoellhorns].
43. These welfare checks/complaints were made to [J.W.’s]
school; the Greenwood Police Department; the Johnson County
Sheriff’s Department; the Johnson County Commissioner’s
Office; Victory Christian Church; and the National Guard.
44. These acts by [Koebler and Kuhns] were an overreaction and
led to a further deterioration of the already fractured relationship.
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45. Adding fuel to the fire, [Koebler and Kuhns] also initiated a
lawsuit against the [Shoellhorns] regarding a train set in
possession of the [Shoellhorns].
46. The timing of this action was, at best, poorly considered and,
at worst, a malicious attempt to inject more vitriol into an
already damaged relationship.
47. This miasma of punch and counter-punch serves as the
backdrop for the instant hearing.
48. [Koebler and Kuhns] assert that if the guardianship is
terminated and [J.W.] is placed in their care in Pennsylvania,
that the conflicts and difficulties that are presently at issue will be
remedied.
50. This belief, in the words of the Guardian Ad Litem, is
“optimistic” and in the Court’s estimation is naïve.
Appellant’s App. Vol. II pp. 23–24, 25–29. Based on its findings, the trial court
modified the Agreed Entry to permit Koebler and Kuhns to visit J.W. for a
supervised forty-eight-hour period every three months and to participate in any
counseling or therapy with J.W. if requested by J.W.’s counselor/therapist and
approved by the Shoellhorns.
Discussion and Decision
I. Visitation Modification
[4] Kuhns contends that the trial court erroneously modified her visitation with
J.W. In K.I. ex rel. J.I. v. J.H., the Indiana Supreme Court noted that there was
authority for the proposition that the only circumstance under which a
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grandparent may seek visitation rights is by filing a petition under Indiana Code
section 31-17-5-1, commonly referred to as the Grandparent Visitation Act,
which Kuhns did not do in this matter. 903 N.E.2d 453, 463 n.8 (Ind. 2009). In
K.I., the Court concluded, however, that because the parties had already
expended substantial time and resources litigating the matter and for purposes
of judicial economy, the filing of a separate grandparent visitation petition was
unnecessary. Id.3 Here, although Kuhns’s visitation was provided pursuant to
the Agreed Entry rather than the Grandparents Visitation Act, both parties use
the modification standard set forth in the Act and therefore our review will as
well. “Under the Grandparent Visitation Act, the amount of visitation is left to
the sound discretion of the trial court.” In re Visitation of L-A.D.W., 38 N.E.3d
993, 997 (Ind. 2015) (internal quotations omitted). A trial court abuses its
discretion only when “its decision is against the logic and effect of the facts and
circumstances before the court or is contrary to law.” D.G. v. W.M., 118 N.E.3d
26, 29 (Ind. Ct. App. 2019), trans. denied. Indiana Code section 31-17-5-7
provides that “[t]he court may modify an order granting or denying visitation
rights whenever modification would serve the best interests of the child.” The
party seeking a modification in a grandparent visitation order bears the burden
of showing that the order should be modified. In re Adoption of A.A., 51 N.E.3d
380, 390 (Ind. Ct. App. 2016), trans. denied.
3
The Court ultimately reversed the trial court’s award of visitation which relied upon the Indiana Parenting
Time Guidelines and remanded the matter with instructions for the trial court to enter findings and
conclusions consistent with the Grandparent Visitation Act. Id. at 462–63.
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[5] Here, we conclude that the trial court was well within its discretion to modify
Kuhns’s visitation. The evidence presented demonstrates that visitation and
telephone calls with Kuhns often escalated J.W.’s mental health issues. At the
July of 2019 hearing, J.W.’s case-manager Linda Hershman testified that
“[t]here were multiple times that [J.W.] expressed suicidal thoughts after
returning from visitation.” Tr. Vol. II p. 4. Hershman also testified that J.W.
struggled with being unable to share her emotions with Koebler and Kuhns
during phone calls and, as a result, was unable to deescalate afterwards, leading
to her expressing suicidal thoughts. J.W.’s therapist Nicole Ryan testified that a
lot of J.W.’s issues escalated “around visitation, being moved, having to talk to
grandparents – paternal grandparents about her emotions, how she’s feeling,
not being heard.” Tr. Vol. II p. 31. Ryan also testified that J.W.’s mental health
issues escalated around visits or phone calls with Koebler and Kuhns that did
not go well. Moreover, at the October of 2019 hearing, Ryan testified that since
the beginning of the evidentiary hearing in July of 2019, J.W. has been “more
of a normal child” and “stable.” Tr. Vol. II pp. 62–63. Ryan no longer has to
keep track of J.W.’s suicidal ideations or anxiety. Ryan noted that since the
July of 2019 hearing, visitation with Kuhns had ceased and phone calls were
supervised. Ryan recommended supervised visitation in order to help Kuhns
communicate with and meet the needs of J.W. when she feels as though Kuhns
is not listening to her. Kuhns argues that it is not her visits with J.W. that
caused J.W.’s mental health issues, but, rather, the information regarding the
on-going litigation that the Shoellhorns shared with J.W. This argument is
merely an invitation to reweigh the evidence, which we will not do. See In re
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Adoption of O.R., 16 N.E.3d 965, 973 (Ind. 2014) (noting that we generally give
considerable deference to trial court in family law cases, because it is in the best
position to judge the facts, determine witness credibility, and “get a feel for the
family dynamics[.]”).
II. J.W.’s Counseling/Therapy
[6] Because the issue was allegedly neither pled nor tried by the consent of the
parties, Kuhns contends that the trial court erroneously modified her ability to
participate in and/or seek information regarding J.W.’s counseling and
treatment pursuant to the Agreed Entry. We, however, disagree with Kuhns’s
characterization of the trial court’s order. We conclude that the trial court
merely clarified the Agreed Entry rather than modifying it. The Agreed Entry
provided that Kuhns “may communicate with [J.W.’s] service providers to
obtain information and participate in [J.W.’s] plan as necessary and appropriate.”
Appellant’s App. Vol. II p. 43 (emphasis added). The trial court’s order stated
that Kuhns was “authorized to participate in any counseling or therapy with
[J.W.] if requested by [J.W.’s] therapist/counselor and approved by the
[Shoellhorns]. Appellant’s App. Vol. II p. 35.
[7] As we read it, the trial court’s order does not alter Kuhns’s ability to seek
information regarding J.W.’s counseling/therapy. Moreover, it does not modify
Kuhns’s ability to participate in J.W.’s counseling/therapy. Pursuant to the
Agreed Entry, Kuhns agreed that her participation in J.W.’s
counseling/therapy would be as necessary and appropriate, and the trial court’s
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order merely clarifies what amount of Kuhns’s participation is currently
necessary and appropriate. Given the trial court’s findings regarding Kuhns’s
actions and their effect on J.W.’s mental health, we cannot say this clarification
is unfounded. Kuhns has failed to establish that the trial court erred in this
regard.
[8] The judgment of the trial court is affirmed.
Baker, J., and Pyle, J., concur.
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