A grandmother who says she helped pick up the pieces in her grandchild’s life after the minor was molested in her father’s home has won a reversal in an Indiana appeals court in a custody battle.
Samuel C. Johnson and Amber Johnson, the parents of child JJ, separated in November 2015. The child was left in her father’s care but reported to her mother that she was molested by her two half-brothers at her father’s home.
Criminal charges were filed against the brothers, the child then lived with her mother and was not returned to her father’s care.
As of February 2019, JJ was living with her grandmother, Jacquetta Hahn-Weisz. Amber Johnson signed informal guardianship and custody documents purporting to give Hahn-Weisz custody of the child, but those documents were never filed in court.
Despite this, the grandmother continued to take care of the child for the next few years. Neither parent provided financial support.
When the parents filed for divorce in July 2019, Hahn-Weisz intervened and filed an application for third-party custody for JJ. The parties temporarily agreed that JJ would remain in Hahn-Weisz’s custody on the recommendation of a court-appointed special counsel.
Subsequent CASA reports recommended that the child continue to live with his grandmother, despite incremental advances in reunion therapy between the child and his father.
CASA’s March 2021 final report noted that JJ’s relationship with her father continued to improve and that “[c]Default from [the Child] is currently not an issue” because the parties are “ready”. [the Child] to remain in the care of her grandmother.”
However, Samuel filed a custody alternation motion in July 2021, which the Union Circuit Court granted in part. The court found that since the half brothers had moved out and one of them was imprisoned, the danger posed by removing the child from Samuel’s home no longer existed.
However, the Court of Appeals reversed the case, consistent with Hahn-Weisz, who argued on appeal that the trial court failed to consider the relevant laws and the best interests of the child.
“We find that the court’s condensed findings do not discuss the relevant statutes, our Supreme Court’s cases on the subject, the burdens of the parties, or the best interests of this child,” Justice Elizabeth Tavitas wrote. “…Our review leads us to conclude that the grandmother has met her burden of providing clear and compelling evidence that a change in custody is not in the child’s best interests.”
In support of its conclusion, the COA cited JJ’s early life trauma, the fact that Samuel had minimal contact with her, and the fact that, with Samuel’s consent, she had lived with Hahn-Weisz for several years.
In addition, the COA noted that it could not determine whether the trial court considered the factors in Indiana Code § 31-17-2-8.5 and that the record was silent as to whether the trial court found that the grandmother de was in fact a guardianship.
“We conclude that grandmother demonstrated an apparent defect,” Tavitas wrote. “The trial court clearly erred in granting the father’s motion to change custody of the child. Accordingly, we turn back.”
The case is Jacquetta Hahn-Weisz v. Samuel C. Johnson and Amber Johnson, 22A-DC-36.
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