JOHNSON v. Michael Johnson, Appellee-Respondent. (2025)

MEMORANDUM DECISION

Case Summary

[1] Cora J. Johnson (Mother) appeals the trial court's order granting grandparent visitation to Leigh Anne Carrington (Grandmother). Because the trial court's order does not contain sufficient findings of fact and conclusions of law, we remand.

Facts and Procedural History

[2] Mother and Michael Johnson (Father)¹ (collectively, Parents) are the parents of T.J., born in February 2013, and O.J., born in December 2017, (collectively, Children). Grandmother is Children's paternal grandmother. Parents were married in 2014. During the marriage, Grandmother and her husband (Step-Grandfather) saw Parents and Children regularly, including providing childcare while Mother worked, socializing together, and celebrating holidays.

[3] In October 2020, Parents divorced, and Mother received physical custody of Children while Father received parenting time. Grandmother and Step-Grandfather continued to be actively involved in Children's lives, often helping Mother with childcare. However, Mother began limiting Children's visits with Grandmother, concerned that Grandmother's physical health prevented her from “keep[ing] up with the kids.” Tr. Vol. II p. 124. In 2021, Father was incarcerated, and a court issued a protective order against him for Mother and Children. As a result, his parenting time was terminated. In October 2021, Mother stopped visits with Grandmother due to her belief that Grandmother was not adhering to “boundaries” Mother had set regarding Children's communications with and about Father. Tr. Vol. III p. 17. Visits resumed in January 2022.

[4] In November 2023, Mother observed an incident between five-year-old O.J., Grandmother, and Step-Grandfather which led to her making a report with Indiana Department of Child Services (DCS). After making the report, she “cut contact” with Grandmother and Step-Grandfather. Id. at 34. DCS investigated and found the report to be unsubstantiated.

[5] In January 2024, Grandmother filed a petition for grandparent visitation pursuant to Indiana Code chapter 31-17-5. A hearing was held over two days in August 2024. Grandmother testified as to her close relationship with Children. She stated she has many serious health issues, including congestive heart failure, that led to Mother setting “reasonable limitations” on visits in 2021 but denied the allegations arising from the November 2023 incident. Tr. Vol. II p. 124. She also testified as to her willingness to do therapeutic visitation to ease back into seeing Children and twice stated she was “not asking for overnight” visits. Tr. Vol. III pp. 135-36. Mother testified as to the DCS report she had made, as well as other “safety issues” she had concerning visitation, including Grandmother's communications with Father and Grandmother's physical ability to supervise the children. Id. at 15. She also testified that T.J., who has autism and is mostly non-verbal, had previously shown inappropriate sexual and self-injurious behavior as well as elopement but had improved since visits with Grandmother had ceased.

[6] After the hearing, the trial court issued an order containing the following findings and conclusions:

FINDINGS OF FACT

1. Cora (Johnson) Bailey, herein after “Mother” is the custodial parent of [O.J.], age 6 and [T.J.], age 10.

2. Michael Johnson herein and after “Father” has had his parenting time suspended due to incarceration and therefore does not regularly exercise parenting time.

3. Grandmother is the paternal grandmother of [Children] and has historically [ ] enjoyed close relationship with both grandchildren.

4. Grandmother is seeking reasonable visitation rights with [Children].

5. Grandmother resides ․ [in] Greencastle, Indiana 46135.

6. Mother resides ․ [in] Terre Haute, Indiana, 47803.

7. Father resides ․ [in] Plainfield, Indiana 47868.

8. Grandmother is seeking grandparent rights pursuant to Indiana Code 31-17-5-1(a)(3).

9. Father has no parenting time order and the Court is unconvinced that the Mother has presented sufficient evidence to prove that the grandparents should not be allowed grandparent visitation rights. Specifically, DCS testified at length that any allegations made have been unsubstantiated.

CONCLUSIONS OF LAW

1. Indiana Code 31-17-5-1 states that child's grandparent may seek visitation rights if: (1) The child's parent is deceased; (2) The marriage of the child's parents has been dissolved in Indiana; or (3) Subject to subjection (b), the child was born out of wedlock. (4) A court may not grant visitation rights to a paternal grandparent of child who is born out of wedlock under subjection (a) (3) if the child's father has not established paternity in relation to the child.

2. Indiana Code 31-17-5-2 states that: (a) The court may grant visitation rights if the court determines that visitation rights are in the best interest 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. (c) The court may interview the child in chambers to assist the court in determining the child's perception of whether visitation by a grandparent is the best interests of the child.

3. The Court concludes based upon the evidence and testimony presented at the hearing that it is in the best interest of the minor child to have visitation with [Grandmother] based upon the clearly strong relationship that had previously been established between [Grandmother] and minor child.

4. Grandparent visitation cannot rely on Indiana Parenting Time Guidelines as Grandparents are not afforded the same rights as parent. In Re: Visitation of L.A.D.W, 38 NE 3rd 993 (Ind. 2015).

App. Vol. II pp. 12-13.

[7] The court awarded Grandmother visitation ² for five hours on the last Sunday of every month as well as a regular overnight visit.³ Mother now appeals.

Discussion and Decision

[8] As an initial matter, Grandmother did not file an appellee's brief. When the appellee fails to file a brief on appeal, we may reverse the trial court's decision if the appellant makes a prima facie showing of reversible error. McGill v. McGill, 801 N.E.2d 1249, 1251 (Ind. Ct. App. 2004). In this context, prima facie error is defined as “at first sight, on first appearance, or on the face of it.” Orlich v. Orlich, 859 N.E.2d 671, 673 (Ind. Ct. App. 2006). This rule was established for our protection so that we can be relieved of the burden of controverting the arguments advanced in favor of reversal where that burden properly rests with the appellee. McGill, 801 N.E.2d at 1251.

[9] Mother argues the trial court's findings of fact and conclusions of law are insufficient to support its grandparent visitation order. We agree.

[10] Historically, grandparents did not have a common-law right to visitation with a grandchild. In re Visitation of M.L.B., 983 N.E.2d 583, 585 (Ind. 2013). This is because grandparents do not have the legal rights of parents and do not possess a constitutional liberty interest with their grandchildren. Fergason v. Brooks, 189 N.E.3d 1102, 1104 (Ind. Ct. App. 2022). “In [contrast,] parents do have a constitutionally recognized fundamental right to control the upbringing, education, and religious training of their children.” McCune v. Frey, 783 N.E.2d 752, 755-56 (Ind. Ct. App. 2003) (internal citations omitted). But recognizing that “a child's best interest is often served by developing and maintaining contact with his or her grandparents,” Indiana has enacted Indiana Code chapter 31-17-5. Swartz v. Swartz, 720 N.E.2d 1219, 1221 (Ind. Ct. App. 1999). The chapter, also known as the Grandparent Visitation Act, allows grandparents in some cases to assert a right to visitation. The Act contemplates only “occasional, temporary visitation” that does not substantially infringe on a parent's fundamental right “to raise their children as they see fit[.]” Id.

[11] When a trial court enters a decree granting or denying grandparent visitation, it is required to set forth findings of fact and conclusions of law. In re K.I., 903 N.E.2d 453, 462 (Ind. 2009). In those findings and conclusions, the court must address:

(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);

(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.

M.L.B., 983 N.E.2d at 586 (Ind. 2013) (citing McCune, 783 N.E.2d at 757-59). “The first three required 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. at 587.

[12] Here, despite a two-day hearing the trial court made only nine findings of fact—the majority of which simply identify the parties and the issues—and four conclusions. Nowhere in the findings or conclusions does the trial court indicate that it afforded Mother the benefit of the presumption that her decision was in Children's best interests or that it gave special weight to her decision. In fact, the court appears to have done the opposite, finding a presumption in favor of Grandmother and requiring Mother to rebut this. See App. Vol. II p. 12 (Finding 9 which provides, “․ the Court is unconvinced that the Mother has presented sufficient evidence to prove that the grandparents should not be allowed grandparent visitation rights.”).⁴

[13] The lack of findings and conclusions on the requisite factors, standing alone, “render this order unconstitutional.” M.L.B., 983 N.E.2d at 587. Such findings are particularly important here, where the trial court ordered overnight visitation—that Grandmother did not request—despite allegations of abuse and Mother's concerns over Grandmother's ability to supervise T.J.—an autistic twelve-year-old boy with a history of elopement and inappropriate sexual and self-injurious behavior. See McCune, 783 N.E.2d at 757 (noting trial court's failure to make one of the required findings was “particularly troubling ․ because there has been an allegation of abuse[.]”); see also M.L.B., 983 N.E.2d at 587-88 (addressing need for findings where trial court's decision to award visitation was in excess of what the grandparent requested).

[14] Because the trial court failed “to issue specific findings in accordance with McCune, the order is voidable, and the remedy on appeal is a remand to the trial court instructing it to enter a proper order containing the required findings.” In re Guardianship of A.L.C., 902 N.E.2d 343, 359 (Ind. Ct. App. 2009). We therefore remand to the trial court for entry of new findings and conclusions revealing its consideration of the required findings.⁵

[15] Remanded with instructions.

FOOTNOTES

1.   Father does not participate in this appeal.

2.   The trial court's order refers to this visitation as “parenting time.” This is incorrect. See Fergason v. Brooks, 189 N.E.3d 1102, 1104 (Ind. Ct. App. 2022) (noting the trial court should not refer to grandparent visitation as “parenting time” because “[g]randparents are not afforded the same legal rights as parents and do not have a constitutional liberty interest with their grandchildren.”).

3.   It is unclear when the overnight visitation is supposed to occur. The court's order refers to it as occurring “every quarter on the third Friday of the month ․” App. Vol. II p. 13.

4.   While the trial court refers to “grandparents” in this finding, the record indicates only Grandmother is seeking visitation.

5.   Mother also argues that there is insufficient evidence to support the grandparent visitation order. But “the purpose of special findings of fact and conclusions of law is to provide the reviewing court with the legal basis upon which the decision was reached.” McCune, 783 N.E.2d at 756 (quoting Sanders v. Sanders, 452 N.E.2d 1057, 1058-59 (Ind. Ct. App. 1983)). As such, we remand for these findings without reaching this issue.

Scheele, Judge.s

Foley, J., and Kenworthy, J., concur.