HIV AIDS Resource Guide/HIV-AIDS Resource Guide.iso/STAT/CASES/STEWART.ASC

Text File | 1993-01-14 | 45KB | 799 lines

/* This case is reported in 521 N.E.2d 956 (Ct. of Apps. Ind. 4th
Dist. 1988). The opinion of Fourth District Court of Appeals of
Indiana, reported at 521 N.E. 2d 956(Ind. App. 4th Dist. 1989)
This is one of the few cases in which child custody was sought to
be terminated with a parent, who had no history of child abuse,
just because the parent was HIV positive. */

MILLER, Presiding Judge.

 Thomas R. Stewart, who has tested positive for the AIDS virus,
appeals the termination of his parental visitation rights with
his two year old daughter, Kara Stewart. The issues raised on
appeal include:

  1. Whether the trial court abused its discretion in
 terminating Thomas' parental visitation rights on the basis
 that he presented a physical danger to Kara;

  2. Whether the trial court abused its discretion in denying
 Thomas' due process rights by refusing to permit Thomas to
 present certain witnesses on his behalf; and

  3. Whether Thomas was denied the opportunity to present his
 case in a fair and impartial forum.

 Based on a thorough review of the record and pertinent case
law, we conclude: (1) that the trial court's decision to deny
Thomas' emergency petition for change of custody should be
affirmed, and (2) that Thomas' visitation rights were improperly
terminated.

 On September 6, 1985, Thomas petitioned for the dissolution of
his marriage to Debra Stewart. On December 6, 1985, a "Decree for
Dissolution of Marriage" was entered. Debra was awarded custody
of Kara, who bad been born on October 31, 1984. At the time of
the dissolution, Debra resided in California and Thomas in
Indiana.  As a result, the dissolution decree provided that
Thomas was to have reasonable visitation with Kara which was
defined as being not less than two months of visitation during
the summer while Debra lived outside the State of Indiana. If
Debra moved back to Indiana, visitation was to be on alternate
weekends and alternate holidays.

On October 9, 1986, while Debra was in Indiana, Thomas filed a
"verified Petition for Emergency Temporary Custody and Contempt,"
alleging that Debra had refused to let Thomas exercise his
visitation rights. It also asserted that Kara was not receiving
adequate nourishment and was being given alcohol and narcotics,
and an extreme emergency existed with regard to Kara's physical,
mental and emotional condition. As a result of the petition, the
trial court issued an order forbidding Debra to leave the
jurisdiction. Debra denied all the allegations and filed a
"verified Petition for Modification of Custody and Contempt,"
alleging that Thomas had failed to make timely child support
payments. She further claimed that Thomas led a homo-sexual
lifestyle, was infected with the AIDS virus, lived in substandard
housing with ten other occupants and lived in a household in
which there was violence. Debra also asserted that the two month
summer visitation out of her presence would upset two year old
Kara, who had never been out of her mother's care.

On October 24,1986, a hearing was held to consider the pending
petitions. The parties agreed that, although Thomas would proceed
first, the testimony of the witnesses could be considered in
determining both petitions.  Thomas' witnesses were himself, two
doctors (whose testimony will be discussed later), his former
wife Debra and his niece, Sandra Cole (also Debra's cousin).
Thomas testified that he had a good home environment  He lived
with his parents and sister and her three children in a 1,250
square foot, three bedroom, two-story home in a residential area.
The home had all modern appliances.  Thomas was self-employed  in
the excavating business. Since the divorce- granted less than a
year before the hearing- Thomas fell behind 36 weeks in his
support payments. He made a lump sum payment and was current at
the time of the hearing.  He based his contention that emergency
custody was necessary solely on telephone conversations with
Debra.  He claimed that in the conversations Debra admitted that
she was using drugs and alcohol and stated that she gave Kara
beer, which she didn't consider harmful, and that on one occasion
the child accidentally ate half a marijuana cigarette. Debra, on
the other hand, denied making these statements to Thomas.  She
stated that, although she had suffered drug and alcohol problems
in the past, she was not a current user. Thomas' niece, Sandra
Cole, testified that she visited Debra in California for one day
and in the evening, at a dinner party with six guests present,
she observed the consumption of alcoholic beverages. She stated
that she thought there was an unspecified drug present She did
not testify that Debra mistreated the child in her presence.  At
this point, Thomas represented to the court that his next
witness, his father Fred Stewart, would corroborate the telephone
conversation in which Debra allegedly stated that (1) she gave
Kara beer, and (2) Kara had accidentally eaten half a marijuana
cigarette. However, the court did not permit Fred Stewart to
testily, stating that, even assuming he would corroborate Thomas'
testimony, the evidence was clearly insufficient to support the
granting of an emergency petition for change of custody. The
court then proceeded, apparently based upon the testimony of
Thomas' witnesses, to find in favor of Debra's motion for
modification, although Debra did not request total termination of
Thomas' visitation. The court commented that Thomas had proven
that he had AIDS and, under those circumstances, "even if there
was a one percent chance that this child is going to contract it
from him, I'm not going to expose her to it," and proceeded to
terminate his visitation rights because of physical danger to the
child. He further authorized the mother to return with the child
to California. Appeal followed.

/* The court's finding even given the early date was extreme. */

 [1-3] Thomas first argues that the trial court erred in not
permitting his father to testily and corroborate his testimony.
We agree.  Of course, the parties should be permitted to present
their witness in order to establish their case. This right can be
abused, for instance, by presenting a number of witnesses with
cumulative evidence. This was not the case here. But, while on
the one band we agree with Thomas, assertion of error, on the
other hand we believe the error here to be harmless for several
reasons.  First, the evidence of emergency based on Debra's
inadequacy as a parent was skimpy and supported for the most part
by self serving testimony by Thomas.  There was no substantial
testimony by anyone that they had direct contact with Debra in
California and were familiar with her life style and the manner
in which Kara was being raised. Further, the court was aware of
Fred Stewart's potential testimony and indicated that Stewart's
testimony would not affect the court's decision.  Therefore, we
conclude that the error committed by the trial court was harmless
and, since the evidence was conflicting, we must affirm the trial
court's decision to deny Thomas' emergency petition for custody.

[4-9] The key issue in this case is whether the trial court
abused its discretion in terminating Thomas' visitation rights
with Kara. [2] Visitation by non-custodial parents is provided
for by IND.CODE 31-1-11.524 (Supp.1987), which states in
part,

     (a) A parent not granted custody of the child is entitled to
     reasonable visitation rights unless the court finds, after a
     hearing, that visitation by the parent might endanger the
     child's physical health or significantly impair his
     emotional development.
     (b) The court may modify an order granting or denying
     visitation rights whenever modification would serve the best
     interests of the child, but the court shall not restrict a
     parent's visitation rights unless it finds that the
     visitation might endanger the child's physical health or
     significantly impair his emotional development.

Indiana has long recognized that the right of parents to visit
their children is "a sacred and precious privilege" which should
be enjoyed by noncustodial parents. Partridge v. Partridge,
(1971) 257 Ind.2d 81, 272 N.E.2d 448, 450.  However, the right of
visitation is subordinated to the best interests of the child.
Thus, under IND.CODE 31-1-11.524(a) and (b), visitation may be
denied or restricted only if the trial court finds that
visitation might endanger the child's physical health or
significantly impair his emotional development.

 [l0] The degree of proof required in actions involving the
termination of a parental right was discussed in Santosky v.
Kramer (1982), 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed. 2d 599.  In
Santosky, the natural parent's rights to visit, communicate with,
or regain custody of the child were being permanently terminated
pursuant to New York's permanent neglect statute. The state court
determined that these parental rights could be permanently
terminated if the state proved its allegations of neglect by a
"fair preponderance of the evidence."  The Supreme Court held
that the state could not completely and irrevocably terminate the
rights of parents unless the state supported its allegations with
evidence that was at least clear and convincing.[4] In reaching
this conclusion, the court examined and balanced three factors-
the private interests affected by the proceeding; the risk of
error created by the State's chosen procedure; and the
countervailing governmental procedure and stated, "Whether the
loss threatened by a particular type of proceeding is
sufficiently grave to warrant more than average certainty on the
part of the fact finder turns on both the nature of the private
interest threatened and the permanency of the threatened
loss."  Santosky, supra, 455 U.S. at 754, 102 S.Ct at 1395-97.
An examination of these factors leads us to conclude that, unlike
Santosky, the present case does not involve a total irrevocable
termination of parental rights. Rather, only the right of
visitation has been terminated.  While there is authority using
the clear and convincing test where less than all parental rights
are terminated,[5] we observe our supreme court has very recently
held that where parental rights are being terminated, and the
termination is revocable, the preponderance of the evidence
standard is appropriate. In re Guardianship of Thompson (1987),
Ind., 514 N.E.2d 618.

In Thompson, the court determined that a guardianship could be
established for a child whose adoptive parents lived in Texas.
The Texas couple, immediately after adopting the child, consented
to the adoption of the child by an Indiana couple and permitted
the child to be taken to Indiana pending the adoption.  When the
Indiana couple immediately thereafter filed its adoption
petition, the Texas couple withdrew their consent and requested
the child be returned to them in Texas.  The trial judge denied
the adoption petition because consent had been withdrawn but
permitted the case to remain open pending further possible
action.  Then the Indiana couple filed a petition to be appointed
guardians of the child which, after an evidentiary hearing, was
granted.  The creation of the guardianship, affirmed by our
supreme court, essentially acted as a termination of the Texas
couple's parental rights until the issue of adoption by the
Indiana couple was ultimately resolved. In affirming, our supreme
court did not specifically state the standard of proof applied,
but a review of its decision leads to the conclusion that the
court utilized a preponderance of the evidence test. The evidence
in Thompson was conflicting in several areas, including the
fitness of the Texas couple as parents. However, the evidence
favorable to the Texas couple showed that the Texas Welfare
Department, only months before the Indiana proceeding, had
conducted a thorough investigation of the couple and found them
to be fit parents. It is notable that the Texas couple had two
children of their own who continued to live with them throughout
this proceeding. There was evidence that the Texas couple was
acting under a great deal of stress at the time they consented to
the adoption by the Indiana couple-- evidence which was
corroborated by their Texas attorney who was also an in-law of
the Indiana couple. On the other hand, the supreme court cited
evidence before the trial court from which the court could have
found the Texas couple was not acting in the best interests of
the child [6] and concluded "[t]here were conflicts in all of
these facts but the conflicts were before the trial court for
resolution." it at 621.  We must conclude from the result in
Thompson that dear and convincing evidence was not required in
order for the trial court to establish the guardianship which, in
effect, deprived the Texas couple of all their parental rights
for a temporary, but indefinite, period of time.  The case before
us presents an analogous situation. Here, while the loss of
visitation is the loss of a significant parental right, it is not
necessarily a permanent loss.  A future change in condition could
remove the basis for termination of visitation.  Thus, we
conclude the Thompson opinion would indicate that the burden of
proof required in this case is a "preponderance of the evidence."

[11] The case before us is also distinguishable from Santosky in
that it involves a dispute between two parents as to visitation.
It does not present a situation in which the state, of its own
volition, is seeking to terminate a parental right on the basis
of neglect. The private interests involved in the termination of
parental visitation include the non-custodial parent's right to
maintain contact with the child, the custodial parent's right to
protect the child and the child's interest in maintaining contact
with both parents. The state's interest is to ensure that the
health and welfare of the child are protected. Unlike its role in
a neglect termination proceeding, the state's role in the present
proceeding does not require it to prove that the parents are
unfit. Rather, the Indiana visitation statute requires the party
filing the petition for modification to prove that the non-
custodial parent presents a physical or mental danger to the
child before the non-custodial parent's visitation rights can he
curtailed or terminated. IND.CODE 31-1-11.5-24 states that the
non custodial parent "is entitled to reasonable visitation." This
language gives rise to the presumption that visitation will be in
the child's best interest unless it is shown that the parent
"might endanger the child's physical health or impair his
emotional development."  Thus, the presumption favoring
visitation is rebuttable and unless it is rebutted, the non
custodial parent is entitled to visitation. In this context, the
burden of proof establishes the level of proof required to rebut
the presumption. It is the custodial parent or petitioner's
responsibility to rebut that presumption.  Thus, the role of the
state is completely different than in a proceeding in which the
state seeks to permanently terminate parental rights on the basis
of neglect.

 [12] Further, under Indiana law, a party may obtain a
modification of visitation so long as evidence is presented which
shows a change in circumstances since the last visitation order
was entered. See State ex rel Jemiolo v. Laporte Circuit Court
(1982), Ind., 442 N.E.2d 1060, 1062. Thus, a termination of
visitation is not permanent nor does it necessarily prohibit the
parent from maintaining contact with the child through
correspondence, telephone calls or other methods. We are aware
that physical visitation is more satisfying and more meaningful
but it must be acknowledged that contact with the child is not
completely and irrevocably terminated when visitation is
denied.[7]  Because the private interest at stake, although
great, is not permanently terminated and the state is not the
initiator of the termination, we conclude the decision in
Thompson is controlling here and, therefore, the party seeking
termination is obligated to prove its case only by a
preponderance of the evidence.  In the present case, this burden
was not met.

On appeal, we will reverse a judgment concerning noncustodial
parent visitation upon a showing of a manifest abuse of the trial
judge's discretion. An abuse of discretion occurs when the trial
court's decision is "clearly against the logic and effect of the
facts and circumstances before the court, or the reasonable,
probable, and actual deductions to be drawn therefrom." Carter v.
Dec (1985), Ind.App., 480 N.E.2d 564, 566 (quoting KB. v. S.B.
(1981), Ind. App., 415 N.E.2d 749, 755). In conducting our
review, we will neither reweigh the evidence nor judge the
credibility of the witnesses.  Carter, supra at 566.

 [13] In the present case, the medical evidence presented at the
hearing on the parties' motions consisted of testimony by Dr.
Robert Baker, Thomas' personal physician, and Dr. Charles
Barrett, an epidemiologist employed by the Indiana State Board of
Health in the area of Chronic and Communicable Disease Control.
Dr. Baker stated that Thomas came to him after testing positive
for the Human Immunodeficiency Virus. Dr. Baker is board
certified in infectious diseases and has treated multiple
patients for the virus over the past four to five years. Dr.
Baker ran a complete blood count and a test on Thomas' immune
system. These tests were essentially normal. Although Thomas does
not have AIDS, Dr. Baker indicated that Thomas was "potentially
contagious to people who would be transfused with his blood or
people he would have sexual intercourse with." (R. 139) When
asked if Thomas could infect anyone in his family by everyday
household contact, Dr. Baker replied, "there have been no
reported cases of that occurring in all the people who've had
infection with this virus in households.  That has not been, that
has not occurred." (R. 140) On cross-examination, Dr. Baker was
asked if it were possible for Thomas to pass the virus if he cut
his finger while extracting one of Kara's baby teeth.  Dr. Baker
replied that it would be possible. Dr. Baker was not asked about
the probability of AIDS being transmitted under those
circumstances.

Dr. Barrett's testimony was similar to Dr. Baker's. Dr. Brett is
an epidemiologist and had previously testified in the Ryan White
school admission case. Dr. Barrett had also worked with the AIDS
program at the State Board of Health. In fact, Dr., Barrett was
the director of the division which carried out most of the State
Board of Health's work in the area of AIDS.  During the direct
examination of Dr. Barrett, the following exchange occurred:

     Q.   If a man had AIDS, he actually had the disease AIDS,
     would a two year old child, living with him in the same
     household, be susceptible to that virus also, just by living
     in that household?
     A.   Would the child be susceptible to it, or ...?
     Q.   Yes. What are the chances of that two year old
     A. That
     Q. getting the..
     A. that transmission of the virus might occur, which is a
     little different than being susceptible, but the evidence I
     would say is quite to the contrary now.  There have been a
     number of studies done even a year or so ago, there were
     nine studies already being reported, which involved more
     than three hundred household contacts of approximately a
     hundred AIDS cases and these studies subsequently have been
     enlarged upon, the studies, themselves, have enrolled  more
     individuals, there've been additional studies done and none
     of these household contacts involved in any of these studies
     have become  infected.  And of course, you don't have to
     wait to see if they're gonna develop AIDS because of the
     antibody test that we were talking about earlier. A person
     who becomes infected with HIV will generally become positive
     for the antibody within a period of about three weeks to
     three months, and so these individuals have been followed
     very closely with antibody testing to see if they might sero-
     convert, that is develop, the antibody themselves, and they
     have not.
     Q.   Okay.  Doctor, you're speaking of someone that actually
     had AIDS, I. that true?
     A.   That is correct.
     Q.   Okay, if a person were to not have AIDS,  but  have
     the antibody present, does that lessen the chances of being
     contagious to someone else in the household?
     A.   Well, we have to assume that a person who is positive
     for the antibodies infected with the virus and would have
     the virus present in their blood, at least at that time and
     would be capable, under the right circumstances, of
     transmitting the virus to someone else.
     Q.   Okay, Doctor, have there been any reported cases of
     transmission of the disease through blood, which was not,
     through blood, in any cases which weren't involving
     hypodermic needles or blood transfusions, for instance, cuts
     or scrapes?
     A.   There've been no cases documented as occurring through
     that manner, the transmission modes are via the sharing of
     hypodermic needles, via blood transfusions and blood
     products, which are given hemophiliacs, for example, and
     result in the infection.

(R 153-55) When asked on cross-examination whether it would be
possible for a parent to infect a child while extracting the
child's tooth, Dr. Barrett replied: "I think we would have to say
that there would be a theoretical possibility... of such a direct
mode, yes." (R.158) Dr. Barrett was questioned regarding the
probability of such a transmission.

No other medical evidence or testimony was presented by either
party. The only other evidence presented related to the living
conditions and lifestyles of both parents. An examination of the
evidence leads to but one conclusion: the medical evidence and
studies available at the time of the trial showed that AIDS is
not transmitted through everyday household contact. The only
evidence to the contrary was the doctors' agreement that there
was a theoretical possibility that transmission could occur
during the extraction of a tooth. However, as previously noted,
the doctors were not asked the probability of such an occurrence,
especially in light of the fact that under the existing
visitation order Thomas would have Kara only two months out of
the year.

     Even if the evidence of Thomas' living conditions, lifestyle
and infection with the virus supported a modification of some
type, it did not support a complete termination of his visitation
rights.  See e.g., Annot., 86 A.L.R.4th 986 (discussing the
imposition of visitation restrictions based on a parent's
homosexual or lesbian lifestyle).  Notably, Debra did not request
complete termination of visitation. Rather, the trial court,
after hearing Thomas' case, inaccurately stated, "[w]hat you have
proved is that Mr. Stewart has AIDS, and even if, even if there's
a one percent chance that this child is going to contract it from
him, I'm not going to expose her to it." (R. 193) In light of the
medical evidence presented, the complete termination of
visitation was an extreme and unwarranted action. When courts are
confronted with new situations and problems regarding visitation,
they must be sure that the action taken corresponds to the danger
presented.  Many parents suffer from varying degrees of handicaps
and illnesses. Yet those parents cannot be deprived of all
visitation with their children merely because some danger exists.
The level of danger must be examined and appropriate precautions
taken.[8] Only in this way can both the parent's visitation
rights and the child's health and welfare be fairly and fully
protected. This was not done in the present case.

Finally, we can find only one reported case dealing with the
termination of visitation of a parent infected with AIDS. In
"Jane" W v. "John" W (1987), N.Y.Sup.Ct., 137 Misc.2d 24, 519
N.Y.S.2d 608, the trial court held that the father was not
precluded from visiting pendente lite with his one and one half
year old daughter because he was diagnosed as having AIDS. The
father was then employed as a health care worker at a hospital
and was aware of the precautions which must be taken to avoid the
spread of AIDS. The court heard the medical testimony of Dr.
Jeffrey Vieira, the Chief of Infectious Diseases at Brooklyn-
Caledonia Hospital and a teacher at Downstate Medical school. The
court described his testimony as follows:

     Dr. Vieira testified about the nature of AIDS. It is
     transmitted through direct mixing of bodily fluids.  He
     explained that the known methods of transmittal are sexual
     contact, the sharing of needles among intravenous drug
     abusers and the transfusion of blood (though this last
     method has been drastically reduced with the discovery of a
     blood test for the disease). Another possible transmission
     method is through breast milk. The doctor explained that
     theoretical transmission routes are through saliva, bite
     wounds, sharing a handkerchief or tissues and the sharing of
     dining utensils (ie. a glass or a fork) though he noted that
     there are not any known transmissions through these methods.
     He also referred to an ongoing study being conducted by
     Montifiore Medical Center which has followed 50 families in
     which one member had AIDS. The study has found that there
     has been no transmission of the AIDS virus within the close
     contact of familial groupings. Defendant is Dr. Visira's
     patient  Dr. Vieira has seen defendant at least every three
     weeks since the summer of 1986. Since January of this year
     he has seen defendant more often than that. Dr. Vieira
     testified that upon his release in December of 1986,
     defendant was in a good emotional state.  He was anxious but
     this was reasonable given the AIDS diagnosis. Defendant is
     presently taking the drug AZT, which appears to inhibit the
     progress of the disease.  The drug may also suppress the
     likelihood of transmitting the virus.  Defendant is
     tolerating the drug well. Defendant was given medical
     approval to return to his health care work. Dr. Vieira, as a
     final analysis determined that defendant is a responsible,
     reasonable person who knows the nature of the disease which
     afflicts him. Defendant is also aware of the precautions
     which must be taken to avoid its spread (i.e. avoid sexual
     contact or have 'safe sex,' avoid kissing in which a large
     amount of saliva would pass, do not share utensils which
     have been immediately used, do not share tooth brushes or
     razors, and clean spills of urine or other bodily secretions
     with bleach).

519 N.Y.S.2d at 604. Relying primarily on the testimony of Dr.
Vieira, the trial court held:

     ... [t]hat the issues of the defendant having AIDS and the
     possible transmittal of the AIDS virus should play little if
     any role in determining this pendente lite application for
     visitation.

519 N.Y.S.2d at 605.  Further, the court noted that the father
had training in pediatric care and therefore ordered unsupervised
visitation one day a week from 10:00 p.m. until 6:00 p.m.

 The medical testimony in "Jane" W is similar to the testimony
in the case before us.  "Jane" W supports our conclusion that the
court was in error when it cut off Thomas' visitation rights.

Finally, Thomas asserts that he was denied a fair and impartial
forum because the judge was prejudiced against anyone infected
with AIDS.  In the argument section of his brief, he calls to our
attention only, one specific comment by the judge, which we have
quoted earlier and which occurred when the judge cut off his
visitation rights.  We have found that the judge's decision in
this regard was erroneous. We have no reason to believe that on
remand the trial court will not follow our direction and, absent
any further evidence establishing that Thomas is unfit will grant
appropriate visitation to Thomas.

 The decision of the trial court to deny Thomas' emergency
petition for change of custody is affirmed. The case is reversed
and remanded for the following purposes: (1) to hear further
evidence on Debra's petition for modification of visitation: (2)
to hear any further medical evidence by either pretty with
respect to current information on AIDS; and (3) to fashion a
visitation order based upon the evidence presented to the court,
which visitation order shall not preclude visitation to Thomas
solely on the basis that he is infected with the AIDS virus'

 SULLIVAN, J., concurs.
 CONOVER, J., dissents with separate opinion.

 CONOVER, Judge, dissenting.

 I respectfully dissent because I do not believe the trial court
has manifestly abused its discretion in this matter.

 As Chief Judge Ratliff recently said

 When reviewing a trial court's determination concerning
visitation by a noncustodial parent we may review only upon a
showing of a manifest abuse of the trial judge's discretion.  in
re Julien, Ind.App., 897 N.E.2d 651.

     Such an abuse of discretion will not be found unless the
     trial court's decision I. clearly against the logic and
     effect of the facts and circumstances before the court, or
     the reasonable, probable, and actual deductions to be drawn
     therefrom. Our function on appeal is 'to examine the
     decision of the trial court and determine whether the record
     discloses evidence or reasonable inferences to be drawn
     therefrom which serve as a rational basis to support the
     finding of the trial court' We will not reweigh the evidence
     or judge the credibility of the witnesses. [Citations
     omitted]. KB. v. S.B. (1981), Ind.App., 415 N.E.2d 749, 755.

     Carter v. Dec (1985), Ind.App., 480 N.E.2d 564, 566. Thus,
     the question becomes what is the breadth of a trial court's
     discretion concerning the grant or withholding of visitation
     rights of the noncustodial parent in this case? Our
     legislature has clearly defined those parameters. IND.CODE
     31-1-11.5-24 provides in part
          SEC. 24. (a) a parent not granted custody of the child
          is entitled to reasonable visitation rights unless the
          court finds, after a hearing, that visitation by the
          parent might endanger the child's physical health.
          (b)the court may modify an order granting or denying
          visitation rights whenever modification would serve the
          best interests of the child, but the court shall not
          restrict a parent's visitation rights unless it finds
          that the visitation might endanger the child's physical
          health. ....... (Emphasis supplied).

Our legislature has determined as a matter of public policy the
best interests of the child are paramount, and trial courts are
to deny noncustodial parents visitation if such visitation might
endanger the child's physical health.

I do not agree with the majority we are to restrict the meaning
of "might" as used in the statute to mean visitation may be
restricted only when it "would" endanger the child's physical
well being. Such was not the intent of the legislature in my
opinion.  Had it so intended, that body would have used
appropriate language such as "probably will", "reasonably may" or
words of similar import. It is apparent to me the legislature
intended "might" as used in the statute to carry its ordinary
meaning which includes the "possibility" of an event occurring.

Our sole function on appeal is to determine whether the trial
court's decision constituted a manifest abuse of discretion. The
experts in this case testified to essentially two degrees of
certainty as to methods by which the AIDS virus may be
transmitted. First, it is reasonably certain the AIDS virus with
which appellant Thomas is infected may be transmitted to third
parties through sexual intercourse, the sharing of hypodermic
needles, and blood transfusions.

 Secondly, it is theoretically possible for a parent to infect a
child with the AIDS virus while excising a child's tooth. [1]
Under these circumstances, a parent "might" infect his child with
AIDS. Because the statute clearly invests the trial court with a
broad discretion in this area, I believe the trial court did not
manifestly abuse its discretion by denying appellant his
visitation rights under these circumstances.

 We may not weigh the evidence nor determine the credibility of
witnesses on appeal.  While we might have decided the matter
differently had we been sitting as the trial court, that reason
standing alone does not authorize reversal.

 In sum, I would affirm because the trial court did not
manifestly abuse its discretion.

NOTES TO MAJORITY OPINION:

1. At the bearing, the trial court actually stated that it was
terminating Thomas' parental rights.  This statement, however,
was clarified by the trial court's docket entry which limited the
termination to visitation rights.

     2.  Thomas, Debra and the amicus curiae (Indiana Civil
Liberties Union) all have submitted appendices with their briefs.
The materials contained in the appendices vary but basically fall
into three categories: cases, medical articles mentioned by the
expert witness at trial and medical articles not mentioned by the
experts at trial.  None of the materials was introduced as
evidence at trial. While there is no dispute that the cases are
subject to consideration, there is a question concerning the
medical literature. Debra takes the position that we may not
consider any of the medical literature presented in the
appendices while Thomas suggest we may take judicial notice of
the materials and consider them in reaching our decision or may
consider the materials because of the important public issue
involved. Judicial notice may be taken of medical facts that are
not subject to reasonable dispute. Hardy v. Johns-Mansville
Sales Corp. (1982), 5th Cir., 681 F.2d 334, 347. Facts that are
judicially noted must be generally known or capable of accurate
determination by resort to sources whose accuracy cannot
reasonably be questioned. Prestige Homes, Inc. v. Legouffe
(1983), Colo., 658 P. 2d 850, 853. Judicial notice has
traditionally been used cautiously and only when the facts
judicially nosed cannot reasonably be disputed. Judicial notice
may not be used on appeal to fill gaps in the evidence. City of
New Brunswick v. Borough of Milltown (1982), 3d Cir., 686 F.2d
120, 131, n. 15.

     In the present case, we are asked to take judicial notice of
several articles containing in-depth information regarding the
AIDS Virus. Unlike the court in Evans v. Indiana University
Medical Center (1951), 121 Ind. App. 679, 100 N.E. 2d 828, 830
where the court judicially noted that pulmonary tuberculosis was
a disease to which the general public was exposed, we, in essence
are being asked to judicially note the specific methods by which
AIDS is communicated. While we have no problem with noting that
AIDS is a severe and communicable disease, we cannot judicially
note the ways in which it is communicated.  Research continues in
an attempt to specify the methods of communication but the data
is not all collected and the methods of communication are not so
firmly established as to be beyond reasonable dispute.  Taking
judicial notice of the scientific and medical data contained in
the articles would put us in the role of expert witnesses and
thereby result in the expansion of judicial notice far beyond its
intended scope. Prestige Homes, Inc., supra, 100 NE. 2d at 854.
Sea also Roe v. Wade (1973), 410 US. 113, 207. 93 S.Ct 705, 755.
35 L.Ed.2d 147 (Burger, CJ. concurring).

 We recognize that judicial notice may be taken of government
publications that have not been introduced into evidence. See
Kavanaugh v. Butorac (1966), 140 Ind.App. 139.221 N.E. 2d 824,
833. However, because of the continuing nature of AIDS research.
the proper method of presenting medical information in the
present case is through experts familiar with the disease and the
current developments in research. Therefore, the review on appeal
will be limited to the evidence presented at trial.  However.
even if the medical literature contained in the appendices were
considered, the result of this decision would remain the same.

[3] Neither party suggests that the word "might" in the statute
("visitation by the parent might endanger the child's physical
health or significantly impair his emotional development")
requires only a mere possibility that the physical or mental
health of the child would be endangered or impaired. In view of
the nature of the parental right being cut off, such a
construction would be an absurd one. Why would the legislature
acknowledge the basic right of visitation of a non-custodia1
parent and then effectively abolish that right by permitting
assertions supported only by speculative, possibility-type
evidence. Thus, we have no hesitation in concluding that statute
requires evidence establishing that visitation "would" (not
"might") endanger or impair the physical or mental health of the
child. Case law supports our treatment of the word "might" in
this context as being more than a mere possibility.  In
Louisville and Southern Indiana Traction Co. v. Montgomery
(1917), 186 Ind. 354, 115 N.E. 673, our supreme court held that
an allegation in a complaint that a motorman started his car
while a surrey was so near the track that the car could not hear
it, as the motorman "might" have discovered by ordinary care, was
not insufficient. The court stated:

     (W)e may concede that the grammarian recognizes a technical
     distinction of the correct use of the words might and
     'should,' and that the failure to observe this distinction
     has on occasion been criticized in judicial decisions.
     Monroeville v. Weihl, 6 Ohio Cir.Ct.R. 188, 196. On the
     other hand, it must be noted that the error is one of
     frequent occurrence with courts and textwriters alike, and
     that, at most, the difference between the two words is
     hardly potential enough to constitute legal irregularity
     sufficient to require the reversal of a judgment,
     particularly as applied to the situation presented in this
     case.

Similarly, in U.S. v. Harrington, 388 F.2d. 520, 524 (2d
Cir.1968), the court noted the standard for relevance and
materiality of information sought by an internal revenue summons
was whether the information sought "might" throw light upon tax
liabilities under the investigation. The court held the word
"might" as used in that standard meant simply that there must be
"a realistic expectation rather than an idle hope that something
may be discovered." See also, United States v. Campbell (1975),
390 F. Supp. 711.

4.    The burden of proof essentially allocates the risk of
 error between the various parties to an action. The degree of
 proof required must be set for a given class of proceedings. It
 cannot be determined on a case by case basis because litigants
 must know at the outset of their case how the risk of error
 will be allocated. Santosky v. Kramer (1982), 455 U.S. 745, 102
 S.Ct. 1388, 1397, 71 L.Ed.2d 599.

5. In Petition of Meyer (1984), Ind.App. 471 N.E. 2d 718 (Miller,
 J., concurring in result), a custodial mother petitioned to
 change her four and a half year old daughter's last name to
 match the name the mother took upon her remarriage. The child's
 natural father objected to the name change. The majority
 stated:
while a change of name action seems to sever but one of these
parental rights rather than all of them, as an adoption
proceeding does, one seeking to sever the rights here in question
must meet this same burden of proof, that is, the evidence
favoring a change of name in such circumstances must be clear and
convincing. Id. at 720-21.  The evidence in favor of the name
change consisted of the mother's testimony that both she and her
daughter, Sarah, desired it. The child did not testify. Other
reasons for the name change were that it would be easier for the
child in school if she had the same name as her mother and
stepfather, and having the same name as her mother and stepfather
would give the child a more secure feeling of family unity. The
majority concluded:
 No substantive evidence to support these reasons was
 introduced, however. The record shows only generalized
 allegations by Penny [the mother] these results would inure
 from the name change. Mere unsupported assertions by a party
 are not substantive evidence. Coghill v. Badger (1982),
 Ind.App., 430 N.E. 2d 405, 406-407. There was no showing Sarah
 presently lacked a feeling of family unity by having a last
 name different from her mother's or she was in any way troubled
 by her last name. Absent any facts to rebut the statutory
 presumption in favor of retaining Sarah's present name, the
 order of the trial judge must be reversed.
Id. at 721 (emphasis added).
Since the court held there were no facts to rebut the statutory
presumption in favor of retaining the child's name, it could be
logically argued that the petitioner in that case failed to meet
even the preponderance of the evidence test.

6. "The facts in the instant case clearly showed the Thompsons
did not live in Indiana. Other facts in evidence raised the
question of whether the Thompons were properly performing their
duties as natural guardians.  The Thompsons had deliberately
placed Billy Joe in the Gorman's custody with the understanding
that she would he brought to Indiana and adopted by the Gormans.
The evidence indicated this was the Thompsons' intent at the time
they adopted Billy Joe in Texas. They deliberately kept this
information from the judge during the Texas adoption proceedings
while the Gormans were with Billy Joe in a separate room. There
was evidence from which the court could find that the Thompsons
were more concerned with money than they were with Billy Joe's
interests.  There are facts which demonstrate the Thompsons at
one time had an interest in taking Billy Joe into their home but
lost that interest. Also also are facts which demonstrate the
Thompsons were willing to give Billy Joe to the Gormans for
adoption and later changed their minds. It also was also
demonstrated to the guardianship court that the child was being
well cared for in the Gorman home. Id. at 621.

7. We recognize that maintaining contact with a two year old
child would be difficult absent actual visitation. The point,
however, is that the loss of visitation, although great, is not
necessarily permanent.

 8. For example, the facts in a particular case might justify the
denial of visitation to a parent who is often intoxicated and
thereby constitutes a danger to the child. However, "the tendency
of the courts seems to be to allow visitation but to require that
the visit be made in the presence of some other person or under
circumstances as will guarantee that the child will not be
exposed to a parent who is under the influence of liquor." 24
Am.Jur.2d, Divorce and Separation # 1000.

 9. Three recent federal cases have affirmed the right of a
teacher with AIDS to teach in public school and the right of
children with AIDS and children who tested seropositive for Human
Immunodeficiency Virus to attend public school. Chlak v. U.S.
Dist. Court, Central Dist. of Califoria, (1988), 840 F.2d
701(9th. Cir. Ca;.); Ray v. School Dist. of DeSoto COuntry, 666
F.SUpp. 1524; Thomas v. Astascadero Unified School District,
(1987), 662 F.Supp. 376. The was no medical evidence in any of
these cases of any substantial risk of harm to school personnel
or students.

Footnotes to dissent:

1. Admittedly, a poor example upon which to base a hypothesis, but
that was the evidence before the trial court.