ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
CURTIS E. SHIRLEY EDWARD O. DELANEY
Indianapolis, Indiana PETER J. RUSTHOVEN
BART A. KARWATH
ERIC ALLAN KOCH MARK J. CRANDLEY
Bloomington, Indiana Barnes & Thornburg
JOHN R. SCHAIBLEY, III
ROBERT K. STANLEY
KATHY L. OSBORN
Baker & Daniels
IN THE COURT OF APPEALS OF INDIANA
IN THE MATTER OF THE GUARDIANSHIP ) OF JOSEPHINE A. HICKMAN ) ) LEO E. HICKMAN, JR., ) ) Appellant-Respondent, ) ) vs. ) No. 53A01-0211-CV-446 ) JOSEPH D. HICKMAN, ) ) Appellee-Petitioner. )
APPEAL FROM THE MONROE CIRCUIT COURT
The Honorable Viola J. Taliaferro, Judge
Cause No. 53C07-0108-GU-60
March 26, 2004
OPINION - FOR PUBLICATION
Leo E. Hickman, Jr., (Leo) appeals the trial courts grant of a petition
for guardianship over the person and estate of Josephine A. Hickman (Josephine) filed
by Joseph D. Hickman (Joseph). Leo raises three issues, which we restate
Whether the trial court abused its discretion by denying Leos motion for change of judge;
Whether the trial court erred by denying Leos request for a jury trial
in the guardianship proceeding; and
Whether the trial court abused its discretion by admitting certain testimony of the
guardian ad litem.
The relevant facts follow. This is the second in a series of three appeals from a contentious family dispute over the guardianship of Josephine. See In re Hickman, No. 53A01- 0208-CV-328, mem. op. (Ind. Ct. App. July 17, 2003), and Hickman v. Irwin Union Bank, No. 53A01-0306-CV-220 (appeal pending). See footnote In February 1988, Josephine fell and hit her head on a concrete driveway, resulting in a severe head injury. Although she eventually regained consciousness, she never regained her full mental capacity. Josephine is now in her eighties and resides in a comprehensive care unit of the Meadowood retirement community in Bloomington, Indiana. Josephine frequently fails to recognize the Meadowood staff and her physician and does not always recognize her children. She is unable to perform basic daily hygiene tasks or take her medicine without assistance. Because Josephine has violent episodes in which she throws objects or attempts to hit people, she is not allowed to eat her meals with the other residents and is restricted from participating in social activities with the other residents.
Prior to her accident, Josephine ran Hoosier Outdoor Advertising Corporation (Hoosier Outdoor), which is a family-owned corporation located in Bloomington, Indiana. Josephines seven children, Leo, Joseph, Ruth Hickman, Jamie Hickman Thompson, Paul Hickman, Richard Hickman, and John Hickman, were shareholders, as well as officers or directors, in Hoosier Outdoor. Leo, Jamie, and Joseph each worked at Hoosier Outdoor, and Leo was vice-president.
On July 19, 2001, Leo visited Josephine in her nursing home and obtained her signature on documents purporting to transfer enough shares of voting stock to give Leo control of Hoosier Outdoor. On that same day, Leo removed his siblings as officers and directors of Hoosier Outdoor and replaced them with his wife and daughter. In March 2002, Leo also terminated Josephs and Jamies employment at Hoosier Outdoor.
On August 1, 2001, Joseph filed a petition for appointment of a temporary guardian over Josephines person and estate, and Leo objected to the petition. The trial court appointed attorney Susan H. Nelson as Josephines guardian ad litem. On January 22, 2002, Nelson filed a written report with the trial court recommending that a guardian be appointed for Josephines person and estate. Nelson recommended that Joseph be appointed guardian of Josephines person and a bank or other institution having a trust department be appointed guardian of Josephines estate. On March 19, 2002, Joseph filed a petition for appointment of a permanent guardian of Josephines person and estate. The petition listed Leo as one of the persons most closely related to Josephine, and notice of the petition was sent to Leo through his counsel. On March 21, 2002, Leo filed a written response to Josephs petition and requested trial by Jury on all issues and matters raised in the guardianship petition and counterclaim. Appellants Appendix at 139.
On June 25, 2002, Joseph filed Verified Motion for Temporary Restraining Order and Injunction Preventing Pending Cancellation of Health Insurance. Id. at 146. On the same day, the trial court granted the temporary restraining order without notice to Leo or his attorneys and set a hearing date for Josephs request for a preliminary injunction. The trial court also entered an order granting all interested parties forty-eight hours in which to respond to the request. Soon thereafter, Leo filed a motion for change of judge, alleging in part that the order granting the temporary restraining order was an ex parte communication and that the order violated Ind. Trial Rule 65. The trial court denied Leos motion for change of judge and granted Josephs motion for a preliminary injunction. See footnote
The trial court set Josephs petition for permanent guardianship for trial with an advisory jury. Leo objected to the use of an advisory jury and to the trial courts denial of his jury demand. At the beginning of the trial, the trial court denied Leos objection on the record and later issued the following written order:
[Leo] is not a party to this action. The only parties in a guardianship case are the petitioner and the person who is named as a person who is in need of a guardian due to his or her incapacitation. The right to a trial by jury is available to the alleged incapacitated person. It is not available to the petitioner nor is it available to a person who is permitted by the court to participate in the proceedings.
[Leo] became involved in this cause without requesting prior permission from the court. The statute is clear that persons other than the petitioner and the alleged incapacitated person must request participation, and persons who are permitted to participate can do so only as authorized by the court.
The right to a trial by jury in a guardianship proceeding is found in the guardianship statute and not in the Constitutions of the United States or the State of Indiana. Guardianship proceedings are equitable in nature.
If there is a request for a jury trial by the alleged incapacitated person, the jury can only decide whether the person is incapacitated and whether the appointment of a guardian is necessary to assist the person in the care of the persons physical person and/or his property.
[Leos] insistence that the jury should determine who should be the guardian is without merit. IC 29-3-5-3(a) clearly states that the court shall appoint the guardian. There is no language in the guardianship statutes that make any reference to the jury deciding who should be the guardian of the physical person or of the property of an incapacitated person. IC 29-3-5-4 provides a list of persons with priority to serve as a guardian, and the court is required to select a guardian from that list.
At the beginning of the jury trial that began on September 3, 2002, the court denied the instant motion on the record. Despite the courts ruling, [Leos] counsel continued to object to what he terms the courts unilateral decision at various times throughout the course of the four-day jury trial.
It is clear that [Leo] had no right to a jury trial in this cause. The court stated at the pretrial conference on July 24, 2002 that the jury would be an advisory jury. [Leo] and his counsel were present at the pretrial conference. Trial Rule 39(B) permits the court to have an advisory jury when the request for a jury is made by a party with no right to a jury.
Id. at 38-39.
On the first day of the trial, Leo filed a motion in limine regarding the guardian ad litems report and recommendation. Id. at 259. Leo argued that Nelson had the ability to introduce admissible evidence, call and cross examine witnesses, but [did] not have the ability to testify on matters not involving admissible, personal knowledge. Her report is based on all levels of hearsay and involves conclusions on ultimate issues in this case that are reserved for the jury. Id. at 259-260. At the end of the trial, Nelson began to testify about her background. Id. at 298-299. Leo pointed out that he had filed a Motion in Limine concerning her taking the stand and testifying in this case and presenting the Guardian Ad Litems report. Id. at 299. Leo objected to her taking the stand and testifying in this matter on anything and [reasserted his] Motion in Limine . . . . Id. The trial court denied Leos objection, and Nelson then continued testifying regarding her background and her investigation of the matter. Nelson concluded as follows:
It is my recommendation that a guardian be appointed for both [Josephines] person, I believe that there are healthcare decisions as this lady, this grand lady of seven (sic) continues to age, that there may need to be some healthcare decisions made. I think it is one thing to consent to medical treatment and its another thing to meaningfully participate in a course of medical treatment[,] and I dont think she can do this at this point. I also believe that a guardian needs to be appointed for her estate. Mr. Delaney very kindly erased the estate plan there, but I think as Mr. Olson testified there are some decisions that need to be made in her best interests, whatever happens with the corporation and those need to be done now, and I dont believe that she can meaningfully participate in estate planning or the management of her funds.
Id. at 302. After Nelson had completed her testimony, Leo moved to
strike the testimony on the basis of all of the reasons mentioned in
the Motion in Limine . . . . Id. at 303.
Leo also argued that the Guardian Ad Litem has made a purported expert
opinion to this jury as to how they should conclude and how they
should find and what they should rule on in this case and that
is totally improper for any witness unless they qualify under the rules under
some . . . other area . . . . Id. at
304. The trial court denied Leos request to strike the testimony.
During deliberations, the advisory jury sent questions to the trial court regarding the guardian ad litems role in the case and her testimony. Id. at 315, 324, 330. Over Leos objections, the trial court reread the introduction of Nelson that it had made at the beginning of the trial: Ms. Susan Nelson has been appointed by the Court as Josephine Hickmans Guardian Ad Litem and Ms. Nelson will be representing the best interests of Josephine A. Hickman. Id. at 328-329. The trial court also replayed a recording of Nelsons testimony for the jury.
The advisory jury returned verdicts as follows:
We, the jury, deny the Petition and find that whether or not Josephine A. Hickman is an incapacitated person, the appointment of a guardian is not necessary as a means of providing care and supervision of her physical person.
Id. at 34, 36. The trial court accepted the advisory jurys verdict
as to the appointment of a guardian of Josephines property but rejected the
advisory jurys verdict as to the appointment of a guardian of Josephines person.
The trial court entered findings of fact and conclusions thereon granting Josephs
petition for a permanent guardian over Josephines person. The trial court then
appointed Joseph as the guardian of Josephines person and Irwin Union Bank as
guardian of Josephines estate. On appeal, Leo argues that the following three
procedural errors occurred during the guardianship proceeding.
Ind. Code § 29-3-5-1(e) (emphasis added). This section of the guardianship statutes
does not specify who is permitted to request a jury trial. We
conclude that this language is susceptible to more than one interpretation, and, thus,
we must attempt to ascertain the legislatures intent. In doing so, we
must read the guardianship statutes as a whole. Citizens Action Coalition of
Ind., Inc. v. Ind. Statewide Assn of Rural Elec. Coops., Inc., 693 N.E.2d
1324, 1327 (Ind. Ct. App. 1998).
In general, the guardianship statutes provide that [a]ny person may file a petition for the appointment of a person to serve as guardian for an incapacitated person. I.C. § 29-3-5-1(a). The petition must contain certain information, including:
the name, age, residence, and post office address of the alleged incapacitated person or minor for whom the guardian is sought to be appointed;
the nature of the incapacity;
the approximate value and description of the property of the incapacitated person or minor, including any compensation, pension, insurance, or allowance to which the incapacitated person or minor may be entitled;
if a limited guardianship is sought, the particular limitations requested;
whether a guardian has been appointed or is acting for the incapacitated person or minor in any state;
the residence and post office address of the proposed guardian and the proposed guardians relationship to the alleged incapacitated person;
the names and addresses, as far as known or as can reasonably be ascertained, of the persons most closely related by blood or marriage to the person for whom the guardian is sought to be appointed;
the name and address of the person or institution having the care and custody of the person for whom the guardian is sought to be appointed;
the names and addresses of any other incapacitated persons or minors for whom the proposed guardian is acting if the proposed guardian is an individual;
the reasons the appointment of a guardian is sought and the interest of the petitioner in the appointment;
the name and business address of the attorney who is to represent the guardian.
I.C. § 29-3-5-1 (emphasis added). In the case of an alleged incapacitated
person, when the guardianship petition is filed, notice of the petition and the
hearing on the petition must be given to certain persons, including [t]he alleged
incapacitated person, the alleged incapacitated persons spouse, and the alleged incapacitated persons adult
children, or if none, the alleged incapacitated persons parents. Ind. Code §
29-3-6-1(a)(4)(A) (1998). As Josephines adult child and a person most closely related
by blood to Josephine, Leo was entitled to notice of the petition and
was required to be listed on the petition.
Another section of the guardianship statutes is essential to our interpretation of whether Leo has the right to request a jury trial. Following Ind. Code § 29-3-5-1(e), which discusses the right to request a jury trial, the section also provides that:
Any person may apply for permission to participate in the proceeding, and the court may grant the request with or without hearing upon determining that the best interest of the alleged incapacitated person or minor will be served by permitting the applicants participation. The court may attach appropriate conditions to the permission to participate.
I.C. § 29-3-5-1(f).
Leo argues that a reading of the guardianship statutes as a whole indicates an intent that he, as an adult child of Josephine, should be permitted to request a jury trial. Leo points out that he was entitled to notice of the petition as an adult child of the alleged incapacitated person and he was listed in the petition. Leo also argues that when interpreting the guardianship statutes to determine who may request a jury trial in a guardianship proceeding, we should liberally construe the statutes to allow the presentation of a defense on behalf of the alleged incapacitated person. According to Leo, [t]he policies embodied in the guardianship laws are far better promoted by permitting any interested person who properly appears in the trial court to respond to the petition and request a jury determination of the issues raised by the petition and response. Appellants Brief at 28.
Joseph contends that the guardianship statutes indicate a desire to provide the incapacitated person with various procedural protections, including a right to request a jury. Appellees Brief at 9. Joseph argues that Leos involvement with the guardianship proceeding stems solely from Ind. Code § 29-3-5-1(f), under which a trial court may grant a person leave to participate in the proceeding. Moreover, Joseph highlights the fact that the guardianship statutes do not even discuss such participants until after the subsection addressing the right to a jury. According to Joseph, the guardianship statutes and the legislative history indicate an intent to allow only the alleged incapacitated person to request a jury trial.
We first address Leos contention that he was entitled to request a jury because he was listed on the petition and received notice of the petition. Ind. Code § 29-3-5-1(a) requires that several persons be listed on the petition, including: (1) persons most closely related by blood or marriage; (2) the person or institution having the care and custody or the person for whom the guardian is sought; (3) any other incapacitated person or minors for whom the proposed guardian is acting if the proposed guardian is an individual; and (4) the attorney who is to represent the guardian. Nothing in the guardianship statutes indicates that simply being listed on the petition gives a person rights in the guardianship proceeding, such as the right to request a jury trial. In fact, some persons listed on the petition, such as other incapacitated persons or minors for whom the proposed guardian is acting, are not even entitled to notice of the petition. Consequently, simply being listed on the petition does not give a person rights in the guardianship.
Ind. Code § 29-3-6-1 requires notice of the petition and hearing to be given to several persons, including: (1) the alleged incapacitated persons spouse, and the alleged incapacitated persons adult children, or if none, the alleged incapacitated persons parents; (2) [a]ny person who is serving as a guardian for, or who has the care and custody of, the alleged incapacitated person; or (3) at least one (1) of the persons most closely related by blood or marriage to the alleged incapacitated person. As with the persons listed on the petition, nothing in the guardianship statutes indicates that receiving notice of the petition and the hearing gives a person rights in the guardianship proceeding. Such notice is simply to provide other immediate family members with notification of the proposed guardianship and an opportunity to request leave to participate in the guardianship under Ind. Code § 29-3-5-1(f). Ind. Code § 29-3-5-1(f) does not differentiate between persons listed on the petition or persons receiving notice of the petition and other interested persons in requiring that such persons request leave of the trial court to participate in the proceedings.
Leo argues that it would be incongruous, at the very least, to require that notice of the petition be provided to the alleged incapacitated persons spouse and adult children, but to deny them the opportunity to appear and respond to the petition. Appellants Brief at 25. However, such persons are not denied the opportunity to participate in the action. Rather, they are simply required to request the trial courts permission to do so, and the trial court considers the alleged incapacitated persons best interests in determining whether the person should be granted permission to participate. I.C. § 29-3-5-1(f).
We conclude that a reading of the guardianship statutes as a whole indicates that, although the guardianship statutes require that persons such as Leo be listed within the petition and receive notice of the petition and hearing on the petition, the guardianship statutes do not confer specific rights or responsibilities upon such persons. Rather, such persons must request permission from the trial court to participate. Ind. Code § 29-3-5-1(f) provides that the trial court may attach appropriate conditions to the permission to participate. Nothing in the guardianship statutes indicates that the trial court must grant such persons the right to a jury trial if requested.
This conclusion is strengthened by the legislative history. Our current guardianship statutes went into effect on July 1, 1989. See footnote See Pub. L. No. 169-1988, § 1, amended by Pub. L. No. 33-1989, § 68. In considering the adoption of new guardianship statutes, the General Assembly created the Probate Code Study Commission to study and recommend changes in the probate code, including the guardianship statutes. See Ind. Code § 2-5-16 (1988). The Commission considered [w]hether the right to a jury trial in a guardianship proceeding should be retained and determined that [s]ince the right to a jury trial in guardianship proceedings currently exists in the Indiana Code, the right to a jury trial in guardianship proceedings should be retained in the new guardianship code. Final Report of the Probate Code Study Commission, Nov. 1988; Appellees Addendum at 8-9.
The right to a jury trial that the Commission determined should be retained was set forth in the following provision of the prior guardianship statutes:
Upon the filing of the petition . . . in the case of any person alleged to be incompetent for any reason other than his minority, and after notice . . . , such court shall cause said person to be produced in court and if said petition is not already at issue by answer of such person, shall cause an issue to be made by the clerk of such court denying the facts set forth in such statement; which issue shall be tried as the issues in civil actions are tried, by the court, or by a jury to be impaneled under the direction of said court, if a jury is requested.
Ind. Code § 29-1-18-19 (repealed by Pub. L. No. 169-1988, § 8 (eff.
July 1, 1989)). This section indicated an intent that the alleged incapacitated
person could respond to the petition or the clerk of the court could
enter a general denial and the issues raised by the petition and such
response could be tried by a jury if requested. The prior guardianship
statutes also required the petition to list the person most closely related by
blood or marriage to the incompetent but only required that notice of the
petition be given to the alleged incompetent, the person having the care and
custody of the incompetent, if any, and [a]ny other person directed by the
court. Ind. Code § 29-1-18-11(f), 29-1-18-14 (repealed by Pub. L. No. 169-1988,
§ 8 (eff. July 1, 1989)). Thus, adult children of the alleged
incapacitated person were not even required to receive notice of the petition.
Further, the prior guardianship statutes contained no provision for other interested persons, such
as other family members, to participate in the determination of whether the alleged
incapacitated person needed a guardian. Thus, under the prior guardianship statutes such
persons could not request a jury trial in determining whether a guardian should
be appointed. The legislature indicated an intent that the right to a
jury trial should remain the same in the new guardianship statutes.
As for Leos argument that he should be allowed to respond to the petition and request a jury trial to allow the presentation of a defense for the alleged incapacitated person, we conclude that the guardianship statutes adequately provide for a defense for the alleged incapacitated person. Ind. Code § 29-3-5-1(c) provides that [u]nless an alleged incapacitated person is already represented by counsel, the court may appoint an attorney to represent the incapacitated person. Further, Ind. Code § 29-3-2-3(a) (1998) provides that the court shall appoint a guardian ad litem to represent the interests of the alleged incapacitated person or minor if the court determines that the alleged incapacitated person or minor is not represented or is not adequately represented by counsel.
According to Leo, the policy of liberally construing the law in guardianship proceedings to allow the presentation of a defense of the alleged incapacitated person is best served by allowing a close family member who is willing to shoulder the defense to appear in opposition to the petition and request a jury trial in order to assure that the alleged incapacitated person is afforded the full measure of the rights the law allows. Appellants Brief at 27. We disagree. Especially in circumstances such as the case at issue here, where families engage in a bitter and contentious dispute over the alleged incapacitated person and her estate, the alleged incapacitated person is better served by representation by disinterested counsel and/or a guardian ad litem appointed by the trial court. We agree with Joseph that these fiduciaries should be the ones to make the sensitive determination about how Josephines rights and status should be adjudicated. Appellees Brief at 15.
In summary, we conclude that the legislature indicated an intent in the guardianship statutes that persons such as Leo, i.e., persons other than the petitioner or alleged incapacitated person, be required to request permission from the trial court to participate in the determination of whether the alleged incapacitated person is in need of a guardian. Further, nothing in the statute indicates that such persons should be allowed to request a trial by jury. See footnote The statute governing persons requesting permission to participate provides that [t]he court may attach appropriate conditions to the permission to participate. I.C. § 29-3-5-1(f). Here, although Leo never requested permission to participate in the proceedings, the trial court impliedly permitted him to participate by accepting and ruling on Leos various pleadings. However, Leo did not have the right to request a jury trial. Consequently, the trial court did not abuse its discretion by denying Leos request for a jury trial, and the trial court properly impaneled an advisory jury under Ind. Trial Rule 39(B).See footnote
Id. at 302. After Nelson completed her testimony, Leo moved to strike
Nelsons testimony on the basis of all of the reasons mentioned in the
Motion in Limine . . . . Id. at 303. Leo
also argued that the Guardian Ad Litem has made a purported expert opinion
to this jury as to how they should conclude and how they should
find and what they should rule on in this case and that is
totally improper for any witness unless they qualify under the rules under some
. . . other area . . . . Id. at 304.
Leo argues that Nelsons testimony that Josephine was in need of a guardian of her person and estate did not qualify as admissible opinion testimony under either Ind. Evidence Rule 701, which addresses opinion testimony by lay witnesses, or Ind. Evidence Rule 702, which addresses opinion testimony by expert witnesses. Leo also contends that Nelsons opinions were based largely upon inadmissible hearsay. According to Leo, the alleged erroneous admission of Nelsons testimony was not harmless because the jurys questions during deliberations focused upon Nelsons role in the proceeding and her testimony.
We first note that Leo did not object at the trial on the basis of Ind. Evidence Rule 701. A party may not present one ground for an objection at trial and assert a different one on appeal. Lashbrook v. State, 762 N.E.2d 756, 759 (Ind. 2002). Consequently, Leo has waived this argument. As for Leos argument under Ind. Evidence Rule 702, the only mention of Nelsons testimony as expert testimony occurred after Nelson had already concluded her testimony. The failure to make a contemporaneous objection to the admission of evidence at trial, so as to provide the trial court an opportunity to make a final ruling on the matter in the context in which the evidence is introduced, results in waiver of the error on appeal. Brown v. State, 783 N.E.2d 1121, 1125 (Ind. 2003). Consequently, Leo also waived his argument under Ind. Evidence Rule 702.
We are left only with Leos argument that Nelsons opinions were based largely upon inadmissible hearsay. At the beginning of Nelsons testimony, Leo reassert[ed] his motion in limine, in which he argued that Nelson could only testify to matters involving admissible, personal knowledge. See footnote Appellants Appendix at 259-260. Nelson then continued her testimony and testified regarding her background, the steps that she took in her investigation of this matter, and her recommendations. Leos objection is based upon Nelsons recommendation that a guardian be appointed for Josephines person and estate. However, Leo did not object at the time that Nelson gave her recommendations. Rather, after Nelson completed her testimony, Leo moved to strike and appeared to argue that Nelsons recommendations were based upon inadmissible hearsay. As noted above, the failure to make a contemporaneous objection to the admission of evidence at trial, so as to provide the trial court an opportunity to make a final ruling on the matter in the context in which the evidence is introduced, results in waiver of the error on appeal. Brown, 783 N.E.2d at 1125. Consequently, Leo also waived this argument.
Waiver notwithstanding, Indiana courts have not addressed the admissibility of a guardian ad litems opinion. See footnote In actions for child custody or modification, the trial court is permitted by statute to order an investigation by a guardian ad litem, and the guardian ad litems report: (1) may be received in evidence at the hearing; and (2) may not be excluded on the grounds that the report is hearsay or otherwise incompetent. Ind. Code § 31-17-2-12 (1998). Further, the statute provides that the guardian ad litem may be called to testify and may be subject to cross examination. Id. Although the guardianship statutes provide that the purpose of the guardian ad litem is to represent the interests of the alleged incapacitated person, the guardianship statutes contain no provisions regarding the admissibility of the guardian ad litems recommendations. Ind. Code § 29-3-2-3(a). Other jurisdictions have dealt with the admissibility of a guardian ad litems recommendation in the absence of statutory authority regarding the admissibility in a variety of manners. See Lidman, Raven & Hollingsworth, Betsy, The Guardian Ad Litem in Child Custody Cases: The Contours of Our Judicial System Stretched Beyond Recognition, George Mason Law Review, Winter 1998; see also Heistand v. Heistand, 673 N.W.2d 541, 550 (Neb. 2004) (holding that the opinion testimony of a guardian ad litem and the hearsay incorporated therein were erroneously admitted); In re Duvall, 67 S.W.3d 736, 740 (Missouri Ct. App. 2002) (holding that the trial court did not err by permitting the guardian ad litem to give his recommendation or by relying on the [guardian ad litems] recommendation as the recommendation was supported by evidence received at trial).
We need not decide this issue today because, even if we assume that the trial court abused its discretion by admitting the evidence, any error in the advisory jury hearing Nelsons testimony was harmless. When a case is tried to the bench, we presume that the court ignored inadmissible evidence in reaching its judgment. Estate of Fowler v. Perry, 681 N.E.2d 739, 744 n.2 (Ind. Ct. App. 1997), trans. denied. Because we have held that Leo was not entitled to request a jury trial, any error in admitting Nelsons testimony was harmless. The jury was advisory only, and we presume that the trial court ignored any inadmissible evidence in determining that Josephine was in need of a guardian of her person and estate. Even if we ignore Nelsons recommendations, a substantial amount of evidence was presented indicating that Josephine was in need of a guardian of her person and estate. Consequently, any error in admitting Nelsons testimony was harmless. We do not, however, mean to suggest that statements and other submissions from a guardian ad litem made before a nonadvisory jury are not completely subject to the rules of evidence for their admissibility.
For the foregoing reasons, we affirm the judgment of the trial court granting permanent guardianship of Josephines person and property.
MATHIAS, J. and VAIDIK, J. concur
In any case where there are issues upon which a jury trial has
not been demanded or has not properly been demanded or upon which there
is no right to trial by jury as of right, the court may
submit any or all of such issues to a jury for trial.
The verdict shall be advisory unless, before the jury retires, the court, with
the consent of both parties or their attorneys, orders that the verdict shall
have the same effect as if a trial by jury had been a
matter of right. Such order shall be granted at the courts discretion,
and all issues shall be tried as if subject to jury trial as
a matter of right unless the parties consent is limited to fewer issues,
or unless the court limits its order to fewer of those issues upon
which consent has been given.
During the testimony of guardian ad litem Jan Fleener, Mother moved to strike
as hearsay the following response:
Q: Ms. Fleener, could you summarize, based upon your interview with [D.H.] and
your assessment, what you observed his wishes to be?
A: Yes. [D.H.] made it very clear to me that he did
not want to have any ongoing contact with his mother, that he wanted
to remain in E.W.'s home, in her care, forever. And that E.W.
was, in his mind, his mother.
Record, p. 1004.
The trial court instructed the guardian ad litem to refrain from repeating verbatim
statements made by D.H. However, he observed that IND. CODE 31-6-3-4 (providing
for the appointment of a guardian ad litem to represent the childs interests)
contemplates some summarization of the childs desires and state of mind. We
agree, and find no abuse of discretion in the admission of Fleeners testimony.
Id. at 638-639. However, D.V.H. was decided before the adoption of our
rules of evidence. Further, although we allowed the guardian ad litem to
summarize the childs desires, we did not specifically address whether the guardian ad
litems recommendations were admissible.