ILNews

Court reverses grandparent visitation

Jennifer Nelson
January 1, 2008
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The Indiana Court of Appeals agreed with a father that his due process rights were violated when a trial court ordered grandparent visitation over his objection. The majority reversed the petition for grandparent visitation filed by the children's maternal grandparents, with one judge dissenting and writing the ruling would give parents a carte blanche to deny visitation for any reason.

In James M. Hicks v. Gary Larson and Judy Larson, No. 26A01-0707-CV-302, Hicks had two children with Geri Hicks, the daughter of the Larsons. The grandparents were allowed regular visitation while Geri and the children lived with the Larsons while she was going through chemotherapy because James had suffered a severe work-related injury. After Geri died, James remarried and his relationship with the Larsons deteriorated. Despite disagreements between Hicks and the grandparents, he allowed them to continue to see his daughters.

Three years after his second marriage, the daughters' stepmother became concerned Gary was behaving inappropriately with her stepdaughter, K.H., after overhearing the girl say she watched her grandfather take a shower and that K.H. slept in the same bed with her grandfather when she would visit overnight.

After an overnight visit, the stepmother saw K.H. touching herself inappropriately, and K.H. said she did so because her grandfather told her she could do it. Hicks and his wife called the Department of Family and Children, and caseworker Ann Sulawske interviewed K.H. The Gibson County Sheriff's Department also investigated the claim that alleged Gary inappropriately touched K.H.

The DFC substantiated the alleged molestation claims, telling the Hickses to not let the children be in the presence of Gary. After the investigation, a grand jury determined there wasn't enough evidence to support the molestation claim and returned a No Bill against him. The grandparents then filed a petition for visitation. The trial court concluded the Larsons would be irreparably harmed if they weren't allowed to visit with their grandchildren. The trial court noted that K.H. had developed a rash on her genital area; and the grandmother directed the grandfather to rub ointment on the affected area and he appropriately applied it.

It's a trial court's discretion to determine what is in a child's best interest and to presume a fit parent's decision is in the child's best interest, wrote Judge Paul Mathias. Grandparents bear the burden of rebutting the parent's decision to deny visitation was made in the child's best interest.

Even though the grandparents played a large role in the children's lives and the grand jury returned a No Bill against the grandfather regarding the molestation allegations, the DFC substantiated the molestation claim, concluding K.H. had been touched inappropriately and in a sexual way by her grandfather.

Gary's testimony at trial does not support the trial court's findings and at most established he may have touched K.H.'s genitals to apply a rash cream. His statements "do not support the trial court's conclusion under the clear and convincing evidence standard it cites that it is certain his only reason for touching K.H.'s genitals was to apply diaper rash cream," wrote Judge Mathias.

Because of Hicks' concern that Gary inappropriately touched K.H., it's his belief it's in the best interest of his children they do not have visitation with their grandparents. The parties conceded Hicks is a fit parent and the grandparents failed to rebut the presumption made by Hicks, wrote Judge Mathias.

Judge Margret Robb dissented, stating none of the evidence in way of testimony by the caseworker, K.H., or the sheriff's department is inconsistent with the trial court's finding and conclusion. The trial court heard all the evidence and determined Gary didn't molest his granddaughter, so therefore Hicks' belief is otherwise unreasonable, Judge Robb wrote. She suggests a more structured visitation plan including supervised visits to allow the grandchildren and grandparents to stay connected.

"My concern with the majority's statement is that it could give a parent almost carte blanche to deny grandparent visitation for any reason or no reason at all. The trial court, after listening to the testimony, concluded that the parent's reasons for denying visitation were unfounded and that awarding grandparents visitation with the children was in the children's best interests; thus, visitation in at least some form should be allowed," she wrote.
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  1. My daughters' kids was removed from the home in March 2015, she has been in total compliance with the requirements of cps, she is going to court on the 4th of August. Cps had called the first team meeting last Monday to inform her that she was not in compliance, by not attending home based therapy, which is done normally with the children in the home, and now they are recommending her to have a psych evaluation, and they are also recommending that the children not be returned to the home. This is all bull hockey. In this so called team meeting which I did attend for the best interest of my child and grandbabies, I learned that no matter how much she does that cps is not trying to return the children and the concerns my daughter has is not important to cps, they only told her that she is to do as they say and not to resist or her rights will be terminated. I cant not believe the way Cps treats people knowing if they threaten you with loosing your kids you will do anything to get them back. My daughter is drug free she has never put her hands on any of her children she does not scream at her babies at all, but she is only allowed to see her kids 6 hours a week and someone has to supervise. Lets all tske a stand against the child protection services. THEY CAN NO LONGER TAKE CHILDREN FROM THERE PARENTS.

  2. Planned Parenthood has the government so trained . . .

  3. In a related story, an undercover video team released this footage of the government's search of the Planned Parenthood facilities. https://www.youtube.com/watch?v=ZXVN7QJ8m88

  4. Here is an excellent movie for those wanting some historical context, as well as encouragement to stand against dominant political forces and knaves who carry the staves of governance to enforce said dominance: http://www.copperheadthemovie.com/

  5. Not enough copperheads here to care anymore, is my guess. Otherwise, a totally pointless gesture. ... Oh wait: was this done because somebody want to avoid bad press - or was it that some weak kneed officials cravenly fear "protest" violence by "urban youths.."

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