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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.

ATTORNEY FOR APPELLANT: JOSHUA I. TOURKOW Tourkow, Crell, Rosenblatt & Johnston Fort Wayne, Indiana

ATTORNEY FOR APPELLEE: JILL M. DENMAN Matheny, Michael, Hahn & Bailey, LLP Huntington, Indiana

IN THE COURT OF APPEALS OF INDIANA
ROBYN HAYDEN, Appellant-Respondent, vs. GUARDIANSHIP OF D.H., Appellee-Petitioner. ) ) ) ) ) ) ) ) )

No. 35A02-0701-CV-91

APPEAL FROM THE HUNTINGTON CIRCUIT COURT The Honorable Jeffrey R. Heffelfinger, Judge Cause No. 35C01-0607-GU-20

June 27, 2007 MEMORANDUM DECISION - NOT FOR PUBLICATION

RILEY, Judge

STATEMENT OF THE CASE Appellant-Respondent, Robyn Hayden (Mother), appeals the trial court's Order awarding guardianship over the minor child, D.H., to Jeff (Uncle) and Sherry (Aunt) Frame (collectively, the Frames). We affirm. ISSUE Mother raises one issue on appeal which we restate as follows: Whether the trial court abused its discretion by granting guardianship over D.H. to the Frames. FACTS AND PROCEDURAL HISTORY D.H., born on June 16, 1992, is the son of Mother and Chris Hayden (Father). Father passed away on March 17, 2004. At some point prior to March of 2004, Mother and Father divorced. As part of the Decree of Dissolution, the Frames, the paternal Aunt and Uncle, were awarded standard visitation rights with D.H.. On July 5, 2006, at D.H.'s request, the Frames filed a Petition for Appointment of Guardian of a Minor Child. The trial court conducted hearings on the petition on October 12, 2006, October 18, 2006, and December 12, 2006. On January 4, 2007, the trial court issued its findings of fact and conclusions of law appointing the Frames as guardians of D.H. The trial court's Order states, in pertinent part: FINDINGS OF FACT * * *

11. [D.H.] had been living, for the year preceding the filing of the petition for guardianship, with [Uncle] and [Aunt], his paternal aunt and uncle. A calendar, created by the Frames and [D.H.], was presented which shows the

dates that [D.H.] was with Uncle or Aunt from November 2005 through August 2006. 12. [Uncle] and [Aunt] have assumed responsibility and care for [D.H.], including, but not limited to: (1) taking him to the hospital for surgery and caring for him after surgery, (2) enrolling him in sports and attending his baseball games, (3) assisting him with his homework, (4) providing him with food and shelter, and (5) providing love, structure and discipline for him. 13. According to [D.H.], for the majority of his life, he has lived somewhere other than with his Mother. He has lived with the Frames and with his [maternal] grandmother, []. 14. [D.H.] desires to live with [Uncle] and [Aunt] because he wants consistency and stability in his life. 15. [Mother] admitted that [D.H.] is very close to [Uncle], [Aunt], and [their son. L.F.]. 16. [D.H.] has concerns about his Mother's drug and alcohol use. 17. [Mother] denied drug and alcohol use, including prior treatment for the same. However, [Mother] has been court ordered previously to attend drug and alcohol counseling. 18. [Mother] stated that she hardly ever drinks and has only been intoxicated one time. However, [Mother] has prior criminal convictions which resulted in her being ordered into alcohol treatment programs. 19. [Mother] has recently moved back into her mother's residence. 20. [Mother] admitted that when [D.H.] comes to her mother's home, he spends most of the time in his room with the door shut. 21. [Mother] admitted that she has difficulty communicating with [D.H.]. 22. [Mother] did not attend any of the minor child's baseball games during the summer of 2006. 23. [Mother] has been unemployed for approximately two (2) years. Her only source of income is [D.H.'s] social security benefits.

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24. [Mother] takes prescription pain medications for a prior injury. 25. [Mother] stated that [D.H.] only went to the Frames on average of one (1) time per week over the past year. However the bus driver and the Frames' neighbor [] both placed him at the Frame residence significantly more than one (1) time per week. [Mother's] testimony is not credible. 26. According to [Mother], [D.H.] rarely rode the school bus to the Frame residence. [Mother] testified that, during the 2005-2006 school year, she picked [D.H.] up from school on average five (5) times per week. However, the school bus driver, [], testified that she drove [D.H.] on the school bus to the Frame's residence in Roanoke a minimum of three (3) times and sometimes five (5) times per week. Again, [Mother's] testimony is not credible. 27. Diane Sills, [Mother's] mother, testified that in 2005 [D.H.] lived with her. According to [Mother's] own testimony, during that time, [Mother] was living with her boyfriend, Craig Hill. Thus, even assuming that Diane Sills' testimony is credible, [D.H.] was still living someplace other than with his Mother. 28. Craig Hill, [Mother's] live-in boyfriend, testified that [D.H.] only lived with him and [Mother] fifty percent (50%) of the time from 2002 until 2006. 29. It is clear that [Mother] has allowed her son to reside with other family members, whether it be Diane Sills or the Frames, rather than raising her son herself. The child is bounced around between different peoples homes. 30. Stability is best for any child. 31. During the pendency of this matter, while in [Mother's] care, [D.H.] was allowed to miss school on at least two (2) occasions. On one of those dates, he was allowed to go to a friend's house to visit and on the other to go to a football game. CONCLUSIONS OF LAW 1. The [c]ourt finds that [Uncle] and [Aunt] are suitable and proper persons to be guardians over [D.H.]. 2. The trial court is aware that the standard in guardianship, when custody is being requested by a party other than the natural parent, is that the [c]ourt 4

be satisfied by clear and convincing evidence that the best interest of the child require a placement with someone other than the natural parent. In Re the Guardianship of B.H. and S.H., minor children, 770 N.E.2d 283 (Ind. 2002). 3. In determining whether or not it is in [D.H.'s] best interest to be placed with [the Frames], the [c]ourt looks at the following factors: (1) the parent's fitness or unfitness, (2) whether the natural parent[] acquiesces [to] the minor child living with another person, (3) whether or not a strong emotional bond has formed between the child and the proposed guardians, and (4) any other factors which would indicate that it is in [D.H.'s] best interest to be placed with someone other than his [M]other. In Re the Guardianship of B.H. and S.H., [770 N.E.2d] at 287. 4. The [c]ourt notes, as the case law clearly indicates in guardianship matters, that the issue is not merely the fault of [M]other. "Rather, it is whether the important and strong presumption that a child's best interests are best served by placement with the natural parent is clearly and convincingly overcome by evidence proving that the child's best interests are substantially and significantly served by placement with another person." In Re the Guardianship of B.H. and S.H., [770 N.E.2d] at 287. 5. Having applied these standards, the [c]ourt finds that the Frames have rebutted the presumption in favor of a natural parent and that it is in [D.H.'s] best interest to be placed with [Uncle] and [Aunt] for the foregoing reasons: a. [Uncle] and [Aunt] can provide the stability and structure necessary for [D.H.] to succeed in life. b. [Mother] acquiesced in allowing [D.H.] to reside with [Uncle] and [Aunt] as illustrated by the testimony of the Frames, [D.H.], [the] bus driver [], and [the Frames' neighbor]. c. [D.H.] has formed a very strong bond with [Uncle] and [Aunt] and their son [L.F.]. d. [Mother] and [D.H.] cannot communicate with one another, as both acknowledged. e. [D.H.] has concerns regarding his [M]other's drug and alcohol use.

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f. The conflicting testimony presented leads the [c]ourt to believe that [Mother's] testimony is not credible. g. The Frames place importance on [D.H.'s] education. h. [Mother] is unemployed and has no income other than the social security benefits received for [D.H.]. i. [Mother] is not a fit parent. She has allowed others to raise, parent, and support [D.H.] while she has continued to receive social security benefits on his behalf. j. [D.H.] consents to guardianship. (Appellant's App. pp. 6-11). Mother now appeals. Additional facts will be provided as necessary. DISCUSSION AND DECISION I. Standard of Review The determination of guardianship falls within the sound discretion of our trial courts and their judgments must be afforded deferential review. Hinkley v. Chapman, 817 N.E.2d 1288, 1293 (Ind. Ct. App. 2004). Because a trial court is required to enter findings, we will reverse the trial court's judgment when there is no evidence to support the findings or the findings do not support the judgment. Id. Upon appeal, we consider only the evidence favorable to the judgment. Id. "[A]n appellate court may not impose its own view as to whether the evidence is clear and convincing but must determine, by considering only the probative evidence and reasonable inferences supporting the judgment and without weighing evidence or assessing witness credibility, whether a reasonable trier of fact could conclude that the judgment was established by clear and convincing evidence. Id. 6

II. Award of Guardianship to Aunt and Uncle Mother's contention upon appeal is two-fold. She first contends that the trial court failed to enter a finding that the appointment of a guardian for D.H. was necessary. Additionally, she challenges the trial court's ultimate decision to appoint the Frames as guardians because it failed to establish sufficient findings supporting their appointment. A. Necessity The guardianship statute provides for the appointment of guardians for minors. See Ind. Code

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