A.D. v. K.D. (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: September 24, 2015
• Docket: 65A01-1502-DR-67
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Sep 24 2015, 10:07 am regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE William W. Gooden Jean E. Hadley Mt. Vernon, Indiana New Harmony, Indiana

IN THE COURT OF APPEALS OF INDIANA

A.D., September 24, 2015 Appellant-Defendant, Court of Appeals Case No. 65A01-1502-DR-67 v. Appeal from the Posey Circuit Court K.D., The Honorable James M. Appellee-Plaintiff Redwine, Judge Trial Court Cause No. 65C01-1402-DR-89

Altice, Judge.

Case Summary

[1] Less than three months after her birth, M.D. was adjudicated a CHINS and

placed in foster care. Shortly thereafter, Mother filed for dissolution of her

Court of Appeals of Indiana | Memorandum Decision 65A01-1502-DR-67| September 24, 2015 Page 1 of 5 marriage to Father. The parties contested the issue of custody, and the trial

court granted sole physical and legal custody to Mother with Father having

supervised parenting time. On appeal, Father contends that he should have

been granted custody because Mother’s neglect resulted in the CHINS

adjudication.

[2] We affirm.

Facts & Procedural History

[3] Mother and Father were married on July 13, 2012. They separated shortly

before M.D.’s birth, November 9, 2013, and remained separated thereafter.

M.D. was the only child of the marriage. Mother, however, had another child,

A.R., who was about two years older than M.D. and of whom Mother had full

custody. Following her birth, Father provided no care or support for M.D.

Mother was her sole caretaker.

[4] Mother took M.D. for her one-month doctor visit on December 9, 2013. The

baby weighed seven pounds and nine ounces at the time. Thereafter, M.D.

began vomiting on a regular basis and not holding down food. Mother spoke

with the doctor during a visit later that month for A.R., at which M.D. was

present, and the doctor indicated that it was probably just an illness that would

pass. Mother called the doctor’s office several more times, but kept getting the

same response. Due to bad weather, Mother rescheduled M.D.’s two-month

checkup. Mother brought M.D. in for a sick visit on January 21, 2014, due to

the continued and progressively worse vomiting. At that time, the doctor

Court of Appeals of Indiana | Memorandum Decision 65A01-1502-DR-67| September 24, 2015 Page 2 of 5 discovered that M.D. weighed only five pounds and eleven ounces. The doctor

directed Mother to go to the emergency room with M.D. There she was found

to be malnourished, dehydrated, and near death. Later that night, the hospital

determined that M.D. had a birth defect that was causing the projectile

vomiting and failure to thrive.

[5] As a result of M.D.’s serious medical condition, she was adjudicated a CHINS

and placed in foster care. Criminal neglect charges were also brought against

Mother. A.R. remained in Mother’s care. Thereafter, on February 25, 2014,

Mother filed for dissolution of marriage.

[6] During the CHINS matter, Mother fully cooperated with services and,

according to Family Case Manager (FCM) Davita Hubbard, made “very good

progress” over the year. Transcript at 69. FCM Hubbard testified that Mother

“has done everything that I have asked her to do.” Id. at 83. At the time of the

final hearing in this dissolution case, Mother had unsupervised visitation with

M.D. every weekend and the case plan was reunification with Mother, with a

trial home visit beginning within the next six weeks.

[7] Father, on the other hand, never took advantage of the services offered, and he

visited M.D. only once in the year preceding the final hearing. FCM Hubbard

testified that Father historically did not follow through with scheduled visits.

She further noted that Father had at least four other children, none of whom

were in his custody. Father’s parental rights had been terminated with respect

to two of his children, his grandmother had guardianship of another, and the

Court of Appeals of Indiana | Memorandum Decision 65A01-1502-DR-67| September 24, 2015 Page 3 of 5 fourth lived out of state with the child’s mother. At the final hearing, Father

testified that he had been homeless and living in a shelter for the last several

months and only recently obtained employment. Father has previously served

time in prison for home invasion and domestic battery.

[8] FCM Hubbard testified that she would be “very concerned” if Father obtained

custody of M.D. Id. at 74. Despite many opportunities, Father had not

established “a pattern where he can commit to raising a child.” Id. at 90. FCM

Hubbard recommended that the trial court grant custody to Mother and

supervised parenting time to Father.

[9] At the conclusion of the final hearing on January 23, 2015, the trial court

granted Mother both legal and physical custody of M.D. The court ordered

supervised parenting time for Father.

Discussion & Decision

[10] On appeal, Father argues that the trial court abused its discretion by granting

custody of M.D. to Mother. He focuses on the circumstances leading up to the

CHINS adjudication and the fact that the infant was in Mother’s care at that

time. Accordingly, Father asserts, “[b]ecause of Mother’s neglect or inattention

to M.D.’s severe weight loss custody should have been granted to Father.”

Appellant’s Brief at 4.

A court must make custody determinations in accordance with the best interests

of the child. Ind. Code § 31-17-2-2. In doing so, the court is required to

Court of Appeals of Indiana | Memorandum Decision 65A01-1502-DR-67| September 24, 2015 Page 4 of 5 consider relevant factors, including but not limited to those explicitly listed in

the statute. Id. The trial court is not required to enter specific findings. Russell

v. Russell, 682 N.E.2d 513, 515 (Ind. 1997). Further, its custody determination

is reviewable only for an abuse of discretion. Id. An abuse of discretion occurs

where the decision is clearly against the logic and effect of the evidence before

the court. Id. On review, we will consider only the evidence favorable to the

judgment, without reweighing the evidence or assessing witness credibility.

Francies v. Francies, 759 N.E.2d 1106, 1115 (Ind. Ct. App. 2001), trans. denied.

[11] We reject Father’s blatant invitation to reweigh the evidence. While Mother

certainly made mistakes during M.D.’s early infancy, the record reveals that she

has consistently worked with service providers to learn how to properly care for

M.D. with her birth defect and possible other medical issues. According to

FCM Hubbard, who had worked with the family for about a year, Mother had

made “very good progress” and was ready to begin her trial home visit shortly

after the final hearing in the instant case. Transcript at 69. Father, on the other

hand, had made no progress in this regard and had visited M.D. only a couple

of times since birth.

[12] The trial court’s custody order is amply supported by the record. Accordingly,

we find no abuse of discretion.

[13] Judgment affirmed.

Riley, J., and Brown, J., concur.

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