Father loses appeal of denied petition to terminate guardianship

A father’s failed attempt to vacate a guardianship order was upheld at the Indiana Court of Appeals, which also warned his counsel against “vitriolic language” accusing the opposing party and trial court of improper motives.

Child A.Y.H. was born in October 2010, and shortly thereafter he began living with his maternal great aunt and uncle. The boy’s father was in jail from February 2011 to 2012, and during that period, his mother gave her consent to the appointment of the aunt and uncle as the child’s permanent guardians.

The guardianship became official in November 2011, and the parents — who have since divorced — did not visit or financially support A.Y.H. for the next three years. However, in 2015, the father petitioned the Lake Superior Court to terminate the guardianship.

Proceedings continued until November 2017, when the father and the guardians executed an order under which the guardians would not pursue adoption, but the guardianship would continue until A.Y.H. turned 18. Meanwhile, the father would have phased-in parenting time that would eventually lead to parenting time under the state guidelines, including overnight and weekend visits.

But then, one year later, father again petitioned to terminate the guardianship. That petition was denied after a two-day hearing, and the Indiana Court of Appeals affirmed the denial Thursday in In the Matter of the Guardianship of A.Y.H. (Minor Child) Yahya Hemaid (Father) v. Rosegina Wheeler and Randall Wheeler (Guardians), 19A-GU-1759.

Judge Terry Crone noted as an initial point that father had waived any challenge to the accuracy or adequacy of the trial court’s findings by failing to provide the appellate court with a copy of the trial court transcript. He also waived his argument that the trial court erred by not specifying the standard of proof in its conclusions of law because he did not cite to relevant authority, Crone said.

The appellate court then rejected the father’s challenge to the merits of specific sections of the lower court’s conclusions.

“In short, paragraphs 6 and 7 list the salient reasons for the trial court’s decision to deny Father’s termination petition,” Crone wrote. “These include: Father’s failure to visit and failure to support Child for nearly seven years of his eight-year life; Father’s acquiescence by failing to challenge the guardianship for three years after his release from jail; Father’s failure to communicate with Child until the agreed order was executed in 2017; Child’s confusion, fear, and emotional problems that resulted from Father repeatedly telling him during parenting time that he would be removed from Guardians and would come to live with him soon; the fact that Guardians are the only parents Child has ever known; the strong bond between Child and Guardians that is ‘so interwoven that to attempt to uproot [] Child from his home environment would seriously mar and endanger the safety and stability of [] Child’; Guardians’ stable lifestyle, which allows Child to ‘thrive and properly develop physically, cognitively, and socially’; and the detriment to Child’s mental and emotional health and development if removed from Guardians.”

Thus, the trial court did not abuse its discretion in denying father’s termination motion, the COA said.

In a footnote, the appellate court also warned father’s counsel against briefs including “vitriolic language impugning the motives of both the trial court and Guardians.” That language included statements such as “it cannot be reasonably maintained that the deficiencies in the trial court’s conclusions of law were inadvertent” and “(g)uardians have taken indecent liberties with Father’s Argument.”

“We remind counsel that the purpose of appellate briefs is to present this Court with concise arguments supported by statutory law, case law, and the record,” the footnote says. It goes on to quote Brill v. Regent Commc’ns, Inc., 12 N.E.3d 299, 301 n.3 (Ind. Ct. App. 2014), which says that “(i)nvectives are not argument, and have no place in legal discussion … .”