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McCUNE v. FREY, 40A05-0209-CV-449 (
CHRISTINA (FREY) McCUNE, Appellant-Respondent, v. TERRY and CAROLYN
FREY, Appellees-Petitioners.
No. 40A05-0209-CV-449
In The Court of Appeals of
APPEAL FROM THE
Judge, Cause No. 40C01-0109-MI-237, OPINION — FOR
PUBLICATION.
JENNIFER A. JOAS,
Williams Joas & Stotts,
ATTORNEY FOR APPELLANT
MIKE CARTER,
MATHIAS, Judge.
Terry and Carolyn
Frey ("the Freys") filed a petition for grandparent>
<visitation> in Jennings Circuit Court requesting a
set visitation schedule
with their grandson, B.F. Christina McCune
("Christina"), B.F.'s mother,
filed a response to the petition stating that she
discontinued visitation
with the Freys for the safety of her child after B.F.
alleged that Terry
Frey abused him.
After holding a
hearing on the petition and reviewing the Court
Appointed Special Advocate's ("CASA") report, the
trial court granted the
petition and awarded the Freys visitation with B.F. on the
first Sunday of
each month between the hours of 1:00 p.m. and
and raises two issues, which we restate as:
I. Whether the
trial court abused its discretion when it
granted the Freys'
petition for visitation because the
court failed to
determine that visitation was in B.F.'s
best interests and
failed to enter findings of fact and
conclusions of law;
and,
II. Whether the
<Grandparent> <Visitation> Act is
unconstitutional.
Because the trial
court failed to issue findings of fact and
conclusions of law as required under the <Grandparent>
<Visitation> Act, we
remand this case to the trial court for proceedings
consistent with this
opinion.
Facts and Procedural History
B.F. was born to
Christina and Christopher Frey ("Chris") on December
24, 1995, and after his birth, Christina, who was fourteen
years old, and
Chris, who was nineteen years old, were married. During the
marriage,
Christina had a good relationship with Chris's parents, the
Freys, and
the Freys saw B.F. on a regular basis.
In March, 1998,
Christina's and Chris's marriage was dissolved in
custody of B.F. with Christina having primary physical
custody. Chris was
awarded visitation with B.F. every weekend and the
visitation was to take
place in the Freys' home. After the marriage was dissolved,
the Freys
continued to have a good relationship with B.F. and had more
contact with
B.F. than Chris. The Freys maintained a relationship with
B.F.
independent of Chris, and Christina agrees that the Freys
played a
significant role in B.F.'s life.
On or about
as if he were afraid to go to the Freys' home for
visitation. On March
2, 2001, B.F. finally told Christina that he was afraid to
go with the
Freys because Terry Frey had "hit him in the
balls." Tr. p. 56. Several
weeks later, Christina discussed B.F.'s allegation with
Carolyn Frey,[fn1]
and visitation with the Freys ceased after the allegation
was made.
However, Christina did take B.F. to Terry Frey's birthday
party in
April, 2001. The Freys also attended B.F.'s kindergarten
graduation
ceremony at his school in May, 2001.
On
visitation in Jennings Superior Court because she no longer
wanted the
Freys to supervise Chris's visitation with B.F. In July,
2001, a CASA was
appointed to investigate the matter and prepare a written
report. Soon
thereafter, the Freys filed a petition for
<grandparent> <visitation> in
requested that her petition to modify Chris's visitation be
joined and
consolidated with the Freys' petition for
<grandparent> <visitation>, and
that a hearing should not be held on the Freys' petition
until the CASA
report was completed. The trial court denied her request to
consolidate,
but agreed to wait for completion of the CASA report before
holding a
hearing on the petition.
A hearing was held
on
testified that she has never seen Terry exhibit anger
towards B.F. or
touch B.F. in an inappropriate manner. Terry Frey stated
that he has
never struck B.F., disciplined him, or spanked him. Both
testified that
after the allegation was made, B.F. never acted as if he
were afraid of
Terry, and at Terry's birthday party, B.F. gave each of them
a hug.
Carolyn Frey also testified that Chris brought B.F. to their
house on
conversation with him. However, after that visit, B.F.
alleged that Terry
had kicked him in the testicles again. Finally, both Carolyn
and Terry
were asked if they would be willing to have visitation with
B.F. in
Christina's home, and both replied that they would not be
willing to do
so.
Christina testified
that B.F. has made consistent allegations of abuse
on more than one occasion. Christina indicated that she
would not have
denied visitation if B.F. had never made the allegations.
She also stated
that if she were present for visitation, she could ensure
that B.F. was
safe and that B.F. would likely feel safer as well. Also,
she
acknowledged that it would be uncomfortable for her to have
the Freys
visit B.F. in her home, but she "would be willing to do
it to try to come
to some type of agreement." Tr. p. 66. Christina
testified that the Freys
were welcome to attend B.F.'s school and sporting events
because she
would also be present. She also stated that B.F. was in
counseling, and
the Freys indicated that they would participate in
counseling if they
approved of the counselor.
The CASA report was
also admitted into evidence. The CASA interviewed
B.F., Christina, Chris, the Freys, Christina's husband and
parents, and
B.F.'s school counselor. Based on these interviews, the CASA
recommended
that B.F. should continue to see the Freys, but to put
Christina's fear
to rest, Terry Frey should "not be left alone with
[B.F.] at any time."
Ex. Vol., Petitioner's Ex. 1. The CASA also recommended that
weekend
visits at the Freys' home remain as stated in the divorce
decree, but
Terry Frey should not be left alone with B.F. at any time
during
visitation.
in-camera interview with B.F.
On
ORDERED that
Petitioners, Terry Frey and Carolyn Frey,
Grandparents herein,
shall be awarded the following
<grandparent>
<visitation> rights in regard to their grandson
[B.F.], to wit:
1.) Commencing on
shall have
visitation rights with their grandson from
the hours of 1:00
o'clock p.m. to 6:00 o'clock p.m.
Grandparents shall
have visitation with [B.F.] from
month thereafter. If
the first Sunday of the month
falls on a weekend
when Ms. McCune has custody of
[B.F.], then the
<grandparents>' <visitation> shall be on
the second Sunday of
the month.
2.) During the
visitation periods for the months of
September, October,
November and December of 2002,
Dr. Terry Frey and
Carolyn Frey must both be present
at all times during
the visitation. Commencing January
5, 2003, there shall
be no such restriction that both
grandparents be
present at the same time during the
visitation periods.
3.) Grandparents shall provide all
transportation to
exercise their
visitation so long as all parties
reside in
counties.
4.) The
Grandparents shall have additional
<grandparent>
<visitation> rights on each December 23rd,
and each
Grandparent's Day, from
5.) Each party
shall pay their own attorney fees and
costs herein.
Appellant's App. pp. 6-7. Christina now appeals.
Discussion and Decision
As an initial
matter, we note that by enacting the <Grandparent>
<Visitation> Act, our General Assembly has recognized
that "a child's best
interest is often served by developing and maintaining
contact with his
or her grandparents." Swartz v. Swartz, 720 N.E.2d
1219, 1221
(Ind.Ct.App. 1999). However, grandparents "do not have
the legal rights
or obligations of parents," and "do not possess a
constitutional liberty
interest in visitation with their grandchildren."
(citations omitted). In constrast, parents do have a
"constitutionally
recognized fundamental right to control the upbringing,
education, and
religious training of their children." Id. Furthermore,
in "our
traditions and collective conscience," we have
acknowledged that parents
"have the right to raise their children as they see
fit." Id. Therefore,
when it drafted the <Grandparent> <Visitation>
Act, our General Assembly had
to balance two competing interests: "the rights of
parents to raise their
children as they see fit and the rights of grandparents to
participate in
the lives of their grandchildren." Id. (citing Lockhart
v. Lockhart,
603 N.E.2d 864, 866 (Ind.Ct.App. 1992)).
Pursuant to the Act,
a grandparent may seek visitation only if the 1)
the child's parent is deceased; 2) the child's parents are
divorced; or
3) the child was born out of wedlock, but only if the
child's father has
established paternity. Ind. Code § 31-17-5-1 (1998). The
trial court
may grant a grandparent's petition for visitation if it
determines that
visitation is in the best interests of the child. Ind. Code
§ 31-17-5-2
(1998). Additionally, a trial court may modify an order
granting or
denying <grandparent> <visitation> rights any
time such modification would
serve the best interests of the child. Ind. Code § 31-17-5-7
(1998).
I.
Findings of Fact and Conclusions of Law
Christina argues
that the trial court abused its discretion when it
granted the Freys' petition for visitation. Specifically,
Christina
contends that the trial court abused its discretion because
the court
failed to find that <grandparent> <visitation>
was in the best interests of
B.F. and failed to issue findings of fact and conclusions of
law. In
support of her argument, Christina notes that Indiana Code
section
31-17-5-6 provides: "[u]pon hearing evidence in support
of and opposition
to a petition filed under this chapter, the court shall
enter a decree
setting forth the court's findings and conclusions."
Ind. Code §
31-17-5-6 (1998) (emphasis added).
The Freys argue that
Christina failed to request special findings of
fact and conclusions of law under Indiana Trial Rule 52, and
the trial
court was not required to enter findings of fact and
conclusions of law
where no such request was made. In support of their
argument, the Freys
rely on Sanders v. Sanders, 452 N.E.2d 1057 (Ind.Ct.App.
1983).[fn2] In
Sanders, although the grandmother was granted visitation
rights, she
appealed and argued that pursuant to Trial Rule 52(A)(3) and
the
<Grandparent> <Visitation> Act, the trial court
was required to issue special
findings of fact and conclusions of law. Id. at 1058. Trial
Rule 52(A)(3)
provides that in a case tried without a jury, the trial
court, upon its
own motion or a party's motion, "shall find the facts
specially and state
its conclusions thereon." However, the trial court is
required to make
special findings of fact without request "in any other
case provided by
these rules or by statute." Ind. Trial Rule 52(A)(3).
Our court determined
that although there were no special findings of
fact and conclusions of law entered by the trial court,
under the
circumstances in Sanders we were able to fully understand
the basis of
the trial court's decision, and it was not necessary to
remand the case
to the trial court. Sanders, 452 N.E.2d at 1058. We stated:
We are of the
opinion that the statutory language is
sufficiently clear
to require compliance by the trial
court with T.R.
52(A)(3). However, 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. There is no mandate in
that the trial judge
must state how or why he found
and concluded as he
did. The only statutory factors
necessary to invoke
the court's discretion are (1)
dissolution of
marriage; and (2) that such visitation
would be in the best
interests of the child. Factor
number (1) was
implicit in the proceeding and factor
number (2) was found
specifically by the court. These
questions were
resolved in favor of Grandmother. . .
. Any relief which
we would grant upon this issue
would be in the form
of a remand to the trial court
with instructions to
enter more specific findings and
conclusions.
However, such proceedings would be
unnecessary and
burdensome, and not in the interest of
judicial economy.
Grandmother cannot complain now of a
favorable result of
the grant of visitation
privileges.
Id. at 1058-59 (emphasis added) (internal citations
omitted). Therefore,
our court essentially concluded that under the
<Grandparent> <Visitation> Act
and Trial Rule 52(A)(3), the trial court is required to
issue findings of
fact and conclusions of law when issuing a decree granting
or denying
<grandparent> <visitation>.
As we noted above,
"[t]he purpose of findings of fact and conclusions
of law is to provide the parties and reviewing courts with
the theory
upon which the case was decided." F.E.H., Jr. v. State,
715 N.E.2d 1272,
1275 (Ind.Ct.App. 1999). It is important for parties and the
reviewing
court to have a clear understanding of how and why the trial
court made
its decision. It is particularly imperative in a
<grandparent> <visitation>
case because of the tension between a parent's fundamental
right to
control the upbringing of his or her child, and the fact
that a child's
best interests are "often served by developing and
maintaining contact
with his or her grandparents." See Swartz, 720 N.E.2d
at 1221.
Pursuant to the
plain language of Indiana Code section 31-17-5-6, we
conclude that when a trial court enters a decree granting or
denying
<grandparent> <visitation>, it must set forth
findings of fact and
conclusions of law in said decree. In those findings and
conclusions, the
trial court should address: 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.[fn3] See Crafton v. Gibson, 752 N.E.2d
78, 96-97
(Ind.Ct.App. 2001). Also, in determining the best interests
of the
child, the trial court "may consider whether a
grandparent has had or has
attempted to have meaningful contact with the
child."[fn4] See Ind. Code
§ 31-17-5-2 (1998).
In this case, the
trial court failed to enter a decree setting forth
its findings of fact and conclusions of law. The trial court
also failed
to find that visitation was in B.F.'s best interests. This
is
particularly troubling under the facts and circumstances of
this case
because there has been an allegation of abuse, and Christina
did not deny
or limit visitation before that allegation was made.
Therefore, we remand
this case to the trial court to enter findings of facts and
conclusions
of law as required by Indiana Code section 31-17-5-6.
Because we feel
that a discussion of the constitutionality of the
<Grandparent> <Visitation>
Act may be beneficial to the trial court on remand, we will
now address
that issue, which has also been raised by Christina in this
appeal.
II.
Constitutionality of the <Grandparent> <Visitation> Act
Christina argues
that the <Grandparent> <Visitation> Act is
unconstitutional on its face and the appropriate standard to
apply to a
Fourteenth Amendment challenge to the statute is the
"strict scrutiny"
standard. Applying that standard, Christina contends that
there is no
compelling state interest that "outweighs the
infringement on the rights
of parents to control the care and upbringing of a child's
life." Br. of
Appellant at 12. However, our court has previously
considered this issue
and determined that under either a rational basis or strict
scrutiny
standard, the <Grandparent> <Visitation> Act is
constitutional on its face.
See Crafton v. Gibson, 752 N.E.2d 78, 92 (Ind.Ct.App. 2001)
(citing
Sightes v. Barker, 684 N.E.2d 224, 233 (Ind.Ct.App. 1997),
trans.
denied).
Christina also
argues that the Act is unconstitutional as applied. "[A]
court may apply a facially sufficient statute in an
unconstitutional
manner. `The practical effect of holding a statute
unconstitutional `as
applied' is to prevent its future application in a similar
context, but
not to render it utterly inoperative.'" Id. (citation
omitted). In
Crafton,[fn5] we indicated that although the
<grandparent> <visitation> act
was constitutional on its face, it may be applied in an
unconstitutional
manner especially in light of our United States Supreme Court's
decision
in Troxel v. Granville, 530 U.S. 57 (2000). Id.
In Crafton, our
court initially observed that Indiana's <Grandparent>
<Visitation> Act is narrower than the Washington
statute at issue in
Troxel because Indiana's Act limits the right to petition
for visitation
to grandparents, and only under limited circumstances. Id.
at 95. Also,
once a petition has been filed, pursuant to the Act, the
trial court must
follow certain procedural steps and determine whether
visitation is in
the child's best interests. Id. at 95-96 (citing Ind. Code
§§ 31-17-5-2,
-7). Therefore, we found that Indiana's Act does not have
the
"overbreadth problem that afflicted the Washington
statute." Id. at 96.
However, we noted that the Troxel Court was also concerned
that under the
Washington statute "`a parent's decision that
visitation would not be in
the child's best interest is accorded no deference.'"
Id. (quoting
Troxel, 530 U.S. at 67).
Our courts presume
that a fit parent acts in his or her child's best
interests; therefore, a trial court "must give special
weight to a fit
parent's decision regarding nonparental visitation."
Id. In Sightes, our
court noted:
The Act does not
presume that <grandparent> <visitation>
is necessarily in
the children's best interest.
Instead, the burden
is on the grandparent, as the
petitioning party,
to demonstrate by a preponderance
of the evidence that
court-ordered visitation is in
the children's best
interest. If such a showing is
made, it falls to
the court to evaluate the evidence,
assess the
circumstances, and carefully devise a
visitation schedule
that is in the children's best
interest.
Id. (quoting Sightes, 684 N.E.2d at 230) (internal citations
omitted). As
the United States Supreme Court stated in Troxel,
"`[t]he Due Process
Clause does not permit a State to infringe on the
fundamental right of
parents to make childrearing decisions simply because a
state judge
believes a `better' decision could be made.'" Id.
(citing Troxel, 530
U.S. at 72-73). In Crafton, there was no allegation that
Crafton was not
a fit parent, and therefore, the trial court was required to
give special
weight to her decision to deny Gibson, the
<grandparent>, <visitation> with
the children; however, that is a rebuttable presumption, and
the
petitioning grandparent bears the burden of rebutting it.
Id. at 96-97.
Another factor the
Troxel Court determined that a trial court should
give some weight to is whether a parent has agreed to some
visitation.
Id. at 97. If the parent does agree to some visitation, then
the dispute
becomes how often and how much visitation will occur. Id.
"[T]here are
different interests at stake in cases where the parties
cannot agree to
the terms of visitation as opposed to cases where no access
has been
allowed," those interests being the right to have a
relationship with the
child versus a disagreement concerning how much access is
appropriate.
Id. (citing Swartz v. Swartz, 720 N.E.2d 1219, 1222
(Ind.Ct.App. 1999)).
In Crafton, we noted
that although the trial court indicated that it
had applied a Troxel analysis to the case, from our review
of the
record, it appeared that the trial court did not give any
special weight
to Crafton's decision concerning <grandparent>
<visitation>. Id. at 97-98.
Also, our review of the record gave us no indication
regarding whether
the trial court had determined if Crafton had denied Gibson
visitation or
had offered limited visitation. Id. at 98. We concluded that
without that
determination, we could not discern whether any weight was
given to
Crafton's offer of visitation. Id. Therefore, our court
determined that
the trial court failed to apply the presumption, which is
required by
Troxel, that a "fit parent's decision with regard to
<grandparent>
<visitation> is made in the child's best
interests." Id. We remanded the
case to the trial court for a new hearing because the
original hearing
occurred prior to the Troxel decision, and the record had
not been
adequately developed in order to allow Gibson an opportunity
to rebut the
presumption that Crafton's decision was in her children's
best interests.
Id.
In this case,
because the trial court failed to enter findings of fact
and conclusions of law, we do not know whether the trial
court applied
the Troxel analysis as discussed by our court in Crafton. It
is unclear
from the record before us whether the trial court applied
the presumption
that a fit parent's decision with regard to
<grandparent> <visitation> is
made in the child's best interests and whether the court
gave special
weight to that decision. Therefore, we remand this case to
the trial
court to review the evidence presented by the parties and
enter findings
of fact and conclusions of law in a manner consistent with
this opinion.
Conclusion
The
<Grandparent> <Visitation> Act requires the trial court to enter
findings of fact and conclusions of law. Because the trial
court failed
to do so in this case, it is not clear from the record
before us whether
the trial court applied the presumption that a fit parent
acts in his or
her child's best interests, and whether the court gave
special weight to
that decision. Therefore, we remand this case to the trial
court for
proceedings consistent with this opinion.
Remanded for
proceedings consistent with this opinion.
BAKER, J., and RILEY, J., concur.
[fn1] After her conversation with Carolyn Frey, Christina
contacted Child
Protective Services and took B.F. to the hospital for an
examination, but
the examination did not reveal any injury to B.F.
[fn2] We note that the <Grandparent>
<Visitation> Act was recodified
in 1997, but the statutory language at issue is identical to
the
statute upon which our court based its decision in Sanders.
[fn3] These factors will be discussed in our discussion of
the
constitutionality of the <Grandparent> <Visitation
Act.
[fn4] However, "this consideration is not the
touchstone for determining
the child's best interests." See Woodruff v. Klein, 762
N.E.2d 223, 228
(Ind.Ct.App. 2002), trans. denied.
[fn5] In Crafton, the trial court granted the grandparent's
petition for
visitation in 1998. After our United States Supreme Court
issued its
decision in Troxel v. Granville, the mother filed a motion
for relief
from judgment pursuant to Indiana Trial Rule 60(B)(7). Id.
at
80-81.