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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 the defense of res judicata, collateral estoppel, or the law of the case.

FILED
Feb 18 2011, 10:13 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEY FOR APPELLANT: SHANNON L. ROBINSON Bloomington, Indiana

ATTORNEY FOR APPELLEE: KENDRA G. GJERDINGEN Bloomington, Indiana

IN THE COURT OF APPEALS OF INDIANA
HOLLY ANN LEWIS (STAGGS), Appellant-Petitioner, vs. GARY A. STAGGS, JR., Appellee-Respondent, DIANA NICHOLSON, Intervenor. ) ) ) ) ) ) ) ) ) ) ) ) )

No. 53A01-1006-DR-316

APPEAL FROM THE MONROE CIRCUIT COURT The Honorable Elizabeth Cure, Judge Cause No. 53C04-0803-DR-120

February 18, 2011 MEMORANDUM DECISION - NOT FOR PUBLICATION FRIEDLANDER, Judge

Holly Staggs Lewis (Mother) appeals from the trial court's order granting paternal grandmother, Diana Nicholson (Grandmother), visitation with Mother's minor son, B.S. Mother presents three issues for our review, one of which we find dispositive: Did the trial court err in granting Grandmother's motion to intervene in the dissolution action? We reverse. Mother and Gary Staggs (Father) married and one child, B.S., was born during the marriage. Mother also had an older son, B.R., from a prior relationship. On March 4, 2008, approximately two months before B.S. was born, Mother filed a petition for dissolution of marriage from Father. At the time of B.S.'s birth, Father was in jail. Father filed a crosspetition for dissolution of marriage on June 25, 2008. In the interim, Grandmother filed a Motion to Intervene and Request for Grandparent Visitation in the divorce action on May 27, 2008. The trial court held a hearing on all pending motions on June 27, 2008. Mother appeared pro se and Grandmother was present with counsel. At the conclusion of the hearing, the court entered an order summarily dissolving the marriage of Mother and Father. The court further noted that the child born during the marriage was presumed to be a child of the marriage. Because Mother believed another man may have been B.S.'s biological father, the court ordered genetic testing to establish paternity. The court took Grandmother's motion to intervene and request for visitation under advisement. The court held a status hearing on August 27, 2008, at which time Mother admitted in open court that B.S. was Father's biological son. Because Father was still incarcerated, the court did not order any specific parenting time for Father. The court ordered, however, that Grandmother be permitted to "care for [B.S.] at such times as may be reasonable and proper."
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Appellant's Appendix at 120. At that time, Grandmother provided care for B.S. twice a week (in the evenings) and on weekends, and eventually just on weekends, while Mother worked.1 In September 2008, Mother wrote a letter to the court expressing concerns about Grandmother's behavior and care for B.S. As a result of the letter, the court set a visitation review hearing for December 16, 2008. Grandmother requested a continuance of the review hearing. The trial court issued an order on December 8, 2008, granting Grandmother's request for a continuance and rescheduling the review hearing for February 5, 2009. In its order, the court, while noting that "no grandparent visitation petition was filed (or order issued) in strict compliance with IC 31-17-5," stated that "paternal grandmother intervened as a party early in the case." Id. at 122. The court ordered Mother and Grandmother to participate in mediation regarding "paternal grandmother having parenting time with child and whether a formal petition for grandparent visitation is warranted, appropriate, or opposed." Id. Mother, pro se, and Grandmother participated in mediation and submitted their agreement to the court, which the court approved on January 20, 2009. Pursuant to the mediated agreement, Grandmother was to have visitation with B.S. one time per week for one and a half hours with the visit to occur in a public place of Mother's choosing and at a time convenient for Mother. They further agreed that B.S. would visit with Father on the second and fourth Sundays of every month with the possibility of an extended visit with

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Grandmother also cared for B.R., her step-grandchild.

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Father to take place on a regular Sunday visit. Additional visits could occur upon agreement of the parties. Over the course of the next year, Mother and Grandmother cooperated with each other with regard to Grandmother's visitation time with B.S. For several months, Mother and Grandmother followed the terms of the mediation agreement by having Grandmother meet with B.S. for short periods of time at Kmart and Subway. Eventually, Mother began leaving B.S. (and also B.R.) with Grandmother for longer periods of time, including overnight on the weekends. In the fall of 2009, Mother frequently used Grandmother as a babysitter for both B.S. and B.R. In December 2009, Mother moved in with her boyfriend (now husband) and thereafter, B.S.'s time with Grandmother was significantly reduced. On March 23, 2010, Grandmother filed a Verified Petition for Rule to Show Cause and for Modification of Visitation. In her petition, Grandmother requested that her visitation with B.S. be modified "so that she has parenting guideline visitation with [B.S.]." Appellant's Appendix at 131. In response to Grandmother's petition, Mother filed a letter with the court setting forth her concerns. The trial court held a hearing on Grandmother's petition on June 23, 2010. Mother appeared pro se and Grandmother appeared in person and by counsel. After Grandmother presented her evidence, Mother made the following statement on her own behalf: All that I was going to say was I just want the best for [B.S.] I have no problem with [Grandmother] seeing him. I never have other than the issue we had in 2008 which we resolved. I would rather my son not stay the weekend anymore. He was being taken to the prison, which I didn't have a problem with until [Father] . . . had gotten in trouble for a scheduled controlled substance. I didn't know what it was but I didn't really want my son there. I just didn't think it was a safe place for him to be.
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Transcript at 70. Mother presented no additional evidence. The court then proceeded to question Mother, expressing clear disapproval of Mother's explanation for the reduction in the amount of time B.S. was visiting Grandmother. At the conclusion of the hearing, the court directed the following statements to Mother: THE COURT: . . . [Father] is [B.S.]'s father for better or worse you chose him. I didn't[,] no one else did and that's a fact that is not going to change. If, when he gets out of prison, in 2011, he does not stay clean and presents any sort of threat or danger or it's no longer in [B.S.]'s best interest that he have a relationship with him for whatever reason I will be the first person to step up. That will be no problem. But that's not where we are right now. Right now he has a father, uh, I'm not going to order you to tell him not to call Jason [Mother's new husband] dad but if you want to do what is in your son's best interest you won't encourage it. I'm going to allow him to go visit his father. I'm going to trust the Branchville Department of Corrections [sic] to monitor that. There is absolutely no evidence whatsoever that [B.S.] has been used for any vicarious purposes and that anything has happened as pictures with your wristband, your wrist in here and he's going for his father, I mean he has a relationship with him as well as he should. So I'm going to allow those visits to continue at the discretion of [Grandmother]. I'm going to grant the visitation every other weekend over night. [MOTHER]: My son don't even know her anymore. THE COURT: Sorry, that's not true. It's just what it is. You used her for a year as your babysitter. She had him every single weekend for three days at a time. You can't just remove a child from a person like that. There [sic] bonds that develop and if you think that child doesn't know you are wrong. You've tried your best. You've kept [Grandmother] from [B.S.] since February but he's going to get to see her and he is going to spend the weekend with her. [MOTHER]: He's only two years old. THE COURT: I know all this. She was fine to have him every other weekend when it was your convenience. You allowed her to do things for him and do things for you over and over and over again until there was an emotional bond that formed. It is in that child's best interest that bond continues. I can't order you to take [B.R.] but I think you will find that you are doing your children harm by keeping them from someone they've grown to love and know. I'm
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going to grant every other weekend visitation from Friday at four to Sunday at four and one night during the week. . . . *** THE COURT: . . . You can not just create (inaudible) kids know, they know, and [B.S.] will know his grandmother when he sees her and he will know his father when he sees him again. And you will have them every other weekend. You can make whatever arrangements you guys agree on but she has a right to them every other weekend. I'm ordering you to appear with your son. . . . Id. at 81-83. A discussion then ensued about the location where Mother and Grandmother would meet to exchange B.S. for scheduled visits and a convenient weekday for the weekly visits. During this discussion, Mother interjected and the following colloquy occurred: [MOTHER]: . . . Is there any way we could do some type of (inaudible

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