MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Aug 04 2016, 9:01 am
regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE Carl Paul Lamb Shannon L. Robinson Carl Lamb & Associates Shannon Robinson Law Bloomington, Indiana Bloomington, Indiana
IN THE COURT OF APPEALS OF INDIANA
Alison Truelove, August 4, 2016 Appellant/Cross-Appellee-Respondent, Court of Appeals Case No. 53A01-1511-DR-1879 v. Appeal from the Monroe Circuit Court Graham M. Hennessey, The Honorable Appellee/Cross-Appellant-Petitioner. Stephen R. Galvin, Judge Trial Court Cause No. 53C07-1210-DR-531
Kirsch, Judge.
[1] Alison Truelove (“Mother”) appeals the trial court’s order modifying custody,
which granted legal and physical custody to Graham M. Hennessey (“Father”).
Mother raises the following restated issues for our review:
Court of Appeals of Indiana | Memorandum Decision 53A01-1511-DR-1879 | August 4, 2016 Page 1 of 22 I. Whether the trial court erred in finding that there was a substantial change in the children’s interaction and interrelationship with Mother; and
II. Whether the trial court erred in failing to properly consider Father’s history of domestic and family violence, substance abuse, relationship with the children, and the children’s adjustment to home, school, and community when it found that modifying custody was in the children’s best interests.
Father cross-appeals and raises the following restated issue: whether the trial
court abused its discretion when it granted Mother unsupervised parenting time
with the children.
[2] We affirm.
Facts and Procedural History [3] Father is a citizen of the United Kingdom and lives in Ashford-Kent, England.
Mother is a citizen of the United States and lives in Bloomington, Indiana.
Mother attended boarding school in the United Kingdom when she was fifteen,
and afterwards, attended the University of Kent in Canterbury, England, where
she obtained her degree in 2004. Mother and Father met in 2002 while Mother
was attending the university and were married on October 14, 2004, in Ashford-
Kent. During the marriage, Mother and Father had two daughters, O.H., born
on October 20, 2005, and S.H., born on April 22, 2008 (together, “the
Children”).
Court of Appeals of Indiana | Memorandum Decision 53A01-1511-DR-1879 | August 4, 2016 Page 2 of 22 [4] In September 2007, Mother took O.H., without Father’s knowledge or consent,
to the United States. Mother stayed with her mother in Virginia. Mother and
O.H. returned to England in November 2007. S.H. was born a few months
later in England.
[5] During their marriage, Mother and Father fought frequently, particularly over
money and Father’s drinking. Although Mother alleged that Father was
physically violent with her, Father denied any allegations of physical violence.
One time in 2008, Mother called the police during an argument, and Father
was cautioned with no further action occurring. Father was never charged with
any acts of domestic violence.
[6] On August 25, 2008, Mother, again without Father’s knowledge or consent,
took the Children and flew to the United States and to her mother’s home in
Virginia. Mother called Father a week later and told him she and the Children
were in the United States. At that time, Father felt that the Children had been
abducted by Mother. In subsequent conversations, Mother and Father agreed
that Mother and the Children would return to England. Father purchased
tickets for the trip; however, Mother and the Children did not return. After
refusing to return to England, Mother told Father she would help him to obtain
a visa to travel to the United States. However, when Father went to the
American Embassy to get the visa, he learned that Mother would not support
his application for the visa as she had promised.
Court of Appeals of Indiana | Memorandum Decision 53A01-1511-DR-1879 | August 4, 2016 Page 3 of 22 [7] In 2010, Father contacted the Hague Convention Office in London, which put
him in contact with Patrick Stiehm, an attorney in Virginia, to represent Father
in negotiations with Mother. On July 29, 2010, Mother and Father signed a
Limited Separation Agreement (“the Agreement”), which contained Agreed
Visitation Orders that were to be filed with the juvenile court in Virginia. The
Agreement stated that the parties must inform each other in writing at least
thirty days prior to any proposed change of residence. It also provided, “Each
party acknowledges that to the best of his or her knowledge and understanding
the other party is a fit and proper person to have custody of the children.”
Resp’t’s Ex. 2 at 15. The Agreed Visitation Orders stated that Father was to
have two six-week visits with the Children in the United Kingdom each year.
Father was also to have telephone and webcam contact with the Children three
times per week for thirty minutes.
[8] After the Agreement was signed, Father did have contact with the Children via
telephone and webcam for a period of time. He also sent them cards and gifts.
However, Father did not register the Agreed Visitation Orders in England.
Mother, therefore, did not allow the Children to travel to England for visits
with Father, and Father refused to pay child support as provided for in the
Agreement. In 2010, Mother tried to enforce the child support order in
England. The British court found the Children had been unlawfully abducted
from the United Kingdom and did not require Father to pay child support
pursuant to the Agreement.
Court of Appeals of Indiana | Memorandum Decision 53A01-1511-DR-1879 | August 4, 2016 Page 4 of 22 [9] Mother began dating Melinda Herald (“Herald”) in the summer of 2010.
Herald has two sons, N.H., who was fifteen years old at the time of the
modification hearing, and P.H., who was eleven years old at the time of the
modification hearing. In August 2011, Mother and the Children moved to
Bloomington, Indiana to live with Herald and did not give Father notice of her
relocation. After the move to Bloomington, Father had very little contact with
the Children. Mother filed a petition for dissolution of her marriage to Father
in Monroe County in October 2012. At the time, Mother claimed she did not
know how to locate Father and obtained notice of the petition on Father by
publication. Mother achieved this by publishing the notice in a Bloomington,
Indiana newspaper, making it unlikely that Father would see the published
notice. A hearing on the petition for dissolution was held, at which Father did
not attend. The trial court issued a decree of dissolution on December 10,
2012, in which sole legal and physical custody of the Children was awarded to
Mother. As to parenting time, the decree specifically stated, “Agreement
previously executed by parties adopted [and] incorporated into this decree.”
Appellant’s App. at 37. Child support was not ordered because “Respondent’s
income and location are unknown.” Id. at 38.
[10] On December 22, 2012, Mother sent an email to Father, notifying him that the
dissolution was final. She also advised Father that the trial court had found
that the prior orders for parenting time were void. She went on to tell Father
that, because she had full legal and physical custody of the Children, she would
decide if and when Father could speak to the Children and that all contact
Court of Appeals of Indiana | Memorandum Decision 53A01-1511-DR-1879 | August 4, 2016 Page 5 of 22 between Father and the Children would be in her discretion. Resp’t’s Ex. 9.
Mother also told Father that, “no child support means no contact.” Id. After
this email, Mother cut off all contact between Father and the Children. Father
continued to send letters, cards, and gifts to the Children even after Mother cut
off communication. During this time when Mother severed communication
between Father and the Children, Father was able to obtain information about
the Children by regularly contacting the school that the Children attended.
[11] Mother and Herald were married on April 30, 2013 in New York. In 2013,
Mother, Herald, and Father exchanged some inappropriate and “nasty”
electronic communications. Tr. at 217. In these communications, Mother
threatened to move with the Children and not tell Father where she had gone.
Id. Father threatened suicide if he could not speak to the Children. On one
occasion, Mother called the police in England after she, Herald, and Father
exchanged a series of threatening tweets. The police arrested Father, and he
was cautioned, but no further action was taken.
[12] On September 1, 2014, Mother entered the living room in her home in
Bloomington and found N.H. performing oral sex on S.H. Mother separated
the children and called Herald to come home. When Herald came home, the
police were called. Caseworker Natalie Hamer (“Hamer”) from the
Department of Child Services (“DCS”) conducted an investigation. On
September 3, 2014, Hamer interviewed Mother regarding the molestation of
S.H. At that time, Mother told Hamer that she had no reason to believe that
sexual abuse was occurring in the home before September 1, but that she had a
Court of Appeals of Indiana | Memorandum Decision 53A01-1511-DR-1879 | August 4, 2016 Page 6 of 22 “gut feeling” this was not the first time. Id. at 299. During this meeting,
Mother told Hamer that she did not know how to contact Father.
[13] Both O.H. and S.H. were interviewed at the local child advocacy center on
September 5, 2014. During this interview, O.H. described numerous acts of
molestation by N.H. Both of the Children stated that N.H. would negotiate
with them, offering favors in return for sexual contact. The sexual abuse began
in 2012, and O.H. stated that, after Herald caught N.H. and O.H. engaging in
sexual acts, the abuse stopped for about a year. Mother and Herald did not
believe O.H. about the allegations at that time and threatened to send her to a
treatment facility. N.H. later confessed that he lied and admitted the
molestation. Regarding the 2012 incident, Mother asked O.H. if she liked it, to
which O.H. responded no. Approximately one year later, the molestations by
N.H. began again and continued for about a year and a half.
[14] After the interview with the Children, Mother told Hamer that she may have
witnessed a prior occurrence in 2012 where N.H. was hunched over O.H.
Mother provided a detailed description of the event, but then stated that she
was not sure she actually saw it. Resp’t’s Ex. 10 at 42. Mother also told Hamer
that O.H. was “manipulative and good at lying.” Tr. at 302. Following this
2012 incident, Mother stated that she and Herald had taken measures to ensure
it would not occur again, including a no touch rule and a rule that the children
would not be left alone together in their rooms. Id. At the conclusion of
speaking with Hamer, Mother informed her that she planned for N.H. to return
to the home and that she did not plan to take the Children out of the home. Id.
Court of Appeals of Indiana | Memorandum Decision 53A01-1511-DR-1879 | August 4, 2016 Page 7 of 22 at 303. Mother stated that it was not fair that her relationship with Herald
should be split up due to N.H.’s actions. Id. Mother also told Hamer she did
not want counseling for the Children. Resp’t’s Ex. 10 at 42.
[15] Based on the information given to Hamer, DCS removed the Children from
Mother’s care, and they were placed in foster care. The Children were removed
because of ongoing sexual abuse, lack of supervision by Mother, and Mother’s
failure to protect the Children after she learned of the prior incidents of
molestation. A petition alleging the Children to be Children in Need of
Services (“CHINS”) was filed by DCS. Before the CHINS detention hearing
on September 9, 2014, Mother told Hamer that O.H. and S.H. were both lying
and that she did not believe them about their most recent disclosures. Tr. at
306. Mother also stated that she had called the school in an attempt to obtain a
statement that O.H. was a liar. Id. at 307.
[16] At the CHINS fact-finding hearing, Mother testified that she was not sure if it
was her or Herald who had witnessed the prior incident in 2012, but that there
was no obvious sexual behavior between the children. Resp’t’s Ex. 10 at 42. She
also testified that she did not remember stating the Children were liars. Id. The
juvenile court found her statements “vague and confusing” and did not “accept
her testimony as truthful.” Id. The Children were found to be CHINS. The
juvenile court specifically found that “[g]iven [Mother’s] pattern of failing to
protect [the Children] from sexual abuse, her belief that [the Children] are liars,
and her failure to provide truthful testimony, it [was] clear that the coercive
Court of Appeals of Indiana | Memorandum Decision 53A01-1511-DR-1879 | August 4, 2016 Page 8 of 22 intervention of the court [was] necessary to protect the health and safety of the
[C]hildren.” Id. at 43.
[17] At the time of removal, Mother told Hamer that Mother had no contact
information for Father and that he was a dangerous person. Hamer was able to
discover Father’s contact information from the Children’s elementary school.
She contacted him and found him to be very appropriate and cooperative.
Hamer believed that placement with Father at that time would have been
appropriate if he lived locally. During the CHINS proceedings, the Children
were placed in foster care with Dawn Mullins (“Mullins”). While the Children
lived with Mullins, she regularly arranged for the Children to communicate
with Father by Skype. Thereafter, Father had regular contact with the Children
and sent them packages every two weeks. The Children would state to Mullins
that they loved Father. During the time the Children were in foster care,
Mullins had little contact with Mother, and Mother had only supervised
visitation with the Children that increased in duration over time.
[18] After removal from Mother’s care, the Children began attending therapy with
Nancy Groover (“Groover”). Groover employed a certain behavioral therapy
to address the Children’s needs, and when she reached a critical phase that
required the participation of a trusted parental figure, Groover did not believe
that Mother was appropriate to participate as Mother had not been supportive
of therapy. Instead, Groover recommended that Mullins participate in this
phase of therapy with the Children. Groover also did an assessment on Father
and found that he performed well on the assessment.
Court of Appeals of Indiana | Memorandum Decision 53A01-1511-DR-1879 | August 4, 2016 Page 9 of 22 [19] On November 25, 2014, Father filed a petition for modification of custody in
the dissolution action. Hearings were held on this petition on May 26, 2015,
July 31, 2015, and August 4, 2015. At the time of the hearings, Father was
thirty-three years old and lived in a two-story, three-bedroom home in Ashford-
Kent, England. Father resided with his girlfriend and her two children. He was
employed as a chef and waiter at a restaurant near his home and had worked
there for three years. Father’s mother, the Children’s grandmother, lived two
blocks from Father’s home and visited frequently.
[20] Evidence was presented that Father had a history of alcohol abuse and abused
alcohol during his marriage to Mother. Father had been convicted of drunk
driving in 1999 when he was seventeen years old and in 2002 when he was
twenty years old; he also had a conviction for threatening to damage or destroy
property in 2004 when he was twenty-two years old. He also had several
cautions, which in the United Kingdom are arrests with no conviction, but
cautioned to not engage in the behavior again. These were for shoplifting in
1997, destroying or damaging property in 2002, sending a letter or other article
conveying a threat in 2008,1 and sending false message by public electronic
communication network to cause annoyance/inconvenience/anxiety in 2013. 2
At the time of the hearings, Father was on probation for a battery conviction
that had occurred in October 2013. He completed alcohol treatment as a part of
1 This incident involved Mother and an argument regarding her taking the Children to the United States. 2 This incident also involved Mother after she cut off all communication between Father and the Children.
Court of Appeals of Indiana | Memorandum Decision 53A01-1511-DR-1879 | August 4, 2016 Page 10 of 22 his probation, and at the time of the hearings, he had not consumed alcohol for
five months.
[21] At the time of the hearings, Mother was still living with Herald in Bloomington
and had no other family in the area. Herald’s child, P.H., lived with Mother
and Herald, and Herald’s mother had petitioned for guardianship of N.H.
Mother was employed at Walmart as a stocker and cashier. Neither she nor
Father have a driver’s license.
[22] In July 2015, Mullins accompanied the Children to England to visit Father for
two weeks. The Children adjusted well to Father’s home and got along well
with Father’s girlfriend and her children. Mullins’s observations of the
interaction between Father and the Children was that Father loved the Children
and is a genuinely caring Father. Tr. at 345-46. Mullins testified that she had
no concerns about the safety of the Children if they were placed in Father’s
custody. Id. at 349.
[23] At the conclusion of the hearings, the trial court issued an order modifying
custody. In the order, the trial court awarded legal and physical custody of the
Children to Father and gave Mother unsupervised parenting time. Mother’s
parenting time is to be six weeks each summer and two weeks each Christmas
holiday. Mother is also allowed to communicate with the Children by Skype,
telephone, or other electronic means for thirty minutes three time a week while
they are in Father’s custody. While the Children are spending time with
Mother, Father is allowed to communicate with the Children for thirty minutes
Court of Appeals of Indiana | Memorandum Decision 53A01-1511-DR-1879 | August 4, 2016 Page 11 of 22 three times a week. Mother was also ordered that she must not allow N.H. to
have any contact with the Children, she must allow DCS immediate access to
the Children at any time during her parenting time, and must not listen to the
communications between the Children and Father. Mother now appeals, and
Father cross-appeals.
Discussion and Decision [24] We review custody modifications for an abuse of discretion and must grant
latitude and deference to trial courts in family law matters. Bailey v. Bailey, 7
N.E.3d 340, 343 (Ind. Ct. App. 2014) (citing Wilson v. Myers, 997 N.E.2d 338,
340 (Ind. 2013)). We will set aside judgments on custody modifications only
when they are clearly erroneous, and we will not substitute our own judgment if
any evidence or legitimate inferences support the trial court’s judgment. In re
Paternity of M.P.M.W., 908 N.E.2d 1205, 1208 (Ind. Ct. App. 2009). When
reviewing the trial court’s decision, we may neither reweigh evidence nor judge
the credibility of witnesses. In re Marriage of Sutton, 16 N.E.3d 481, 484 (Ind.
Ct. App. 2014). We consider only the evidence favorable to the trial court’s
judgment and all reasonable inferences derived from it. Id. Mother is appealing
from a decision in which the trial court entered specific findings of fact and
conclusions thereon. See Ind. Trial Rule 52(A). Therefore, we must first
determine whether the evidence supports the findings and, second, whether the
findings support the judgment. In re M.P.M.W., 908 N.E.2d at 1208.
Court of Appeals of Indiana | Memorandum Decision 53A01-1511-DR-1879 | August 4, 2016 Page 12 of 22 [25] A trial court may not modify a child custody order unless: “(1) the
modification is in the best interests of the child; and (2) there is a substantial
change in one (1) or more of the factors that the court may consider under
section 8 and, if applicable, section 8.5 of this chapter.” Ind. Code § 31-17-2-
21(a)). Factors to consider in deciding whether to modify custody include
whether there has been a substantial change related to the child’s age; the
wishes of the parent(s); the child’s wishes; the relationship the child has with his
or her parent(s), sibling(s), and others; the child’s adjustment to home, school,
and community; the mental and physical health of all involved; any evidence of
domestic or family violence; and any evidence that the child has been cared for
by a de facto custodian. Ind. Code § 31-17-2-8. A party seeking modification
of custody bears the burden of demonstrating that the existing arrangement is
no longer in the best interests of the child and that there has been a substantial
change in one or more of the enumerated statutory factors. Bailey, 7 N.E.3d at
343.
I. Substantial Change in Circumstances [26] Mother argues that the trial court abused its discretion in modifying custody of
the Children in favor of Father because the trial court failed to properly identify
which of the statutory factors had been substantially affected. She asserts that,
even though the trial court concluded that “[t]here has clearly been a substantial
change in the [C]hildren’s interactions with their mother,” there were not
enough facts or circumstances to support that determination. Appellant’s App. at
20. Mother claims that DCS involvement in the lives of her and the Children
Court of Appeals of Indiana | Memorandum Decision 53A01-1511-DR-1879 | August 4, 2016 Page 13 of 22 should not have constituted a substantial change because she had put
reasonable safeguards in place after her suspicion of inappropriate behavior in
2012, and she notified the authorities following her discovery of the incident in
2014. She believes that these actions should be viewed as appropriate attempts
to fix a problematic situation and not evidence of her irresponsibility and
unfitness as a parent.
[27] In its order modifying custody, the trial court concluded that custody of the
Children should be modified in favor of Father based on a substantial change in
the interaction and interrelationship of the Children with Mother. The
evidence most favorable to the trial court’s judgment showed that the Children
were removed from Mother’s care in September 2014 due to repeated
molestations by N.H., their step-brother. Mother and Herald were aware of
previous sexual contact between N.H. and O.H. in 2012, and Mother did not
take adequate measures to protect the Children from further sexual abuse by
N.H. When the incident occurred in September 2014, Mother was not truthful
in her statements to DCS regarding her knowledge of N.H.’s prior molestation
of O.H. Mother also initially refused to have N.H. leave the home and told
Hamer that the Children were lying; Mother also attempted to get
documentation form the Children’s school that O.H. was a liar. Further,
Mother’s testimony at the modification hearing was not consistent with prior
statements that she had made to Hamer. At the time of the hearing, the
Children had not been returned to Mother’s care since their removal, and
Mother failed to take responsibility for allowing the Children to be repeatedly
Court of Appeals of Indiana | Memorandum Decision 53A01-1511-DR-1879 | August 4, 2016 Page 14 of 22 molested by N.H. Mother was also not supportive of the Children’s therapy,
and their therapist, Groover, found that Mother was not an appropriate person
to participate in the Children’s treatment with them.
[28] Mother cites to Wiggins v. Davis, 737 N.E.2d 437 (Ind. Ct. App. 2000) for
support of her argument. In that case, the trial court modified custody of a
child to father because the child had been molested by a half-brother while in
the mother’s custody and found that the molestation constituted a substantial
change in the child’s interaction and interrelationship with the child’s siblings.
Id. at 442. In her argument, Mother seems to acknowledge that if the trial court
in the present case had made the same conclusion, “the facts and law may have
supported it,” but that, since the trial court concluded there was a substantial
change in the interaction and interrelationship with Mother, such a conclusion
was not supported. Appellant’s Br. at 16. However, we find that the evidence in
the present case surpasses that in Wiggins, and therefore, that case is not
inconsistent with the trial court’s conclusion in the present case. The evidence
here established that Mother had knowledge of past acts of molestation by N.H.
and failed to take appropriate steps to protect the Children from further
molestation. After the Children were removed, Mother called the Children
liars, initially refused to take steps to ensure the Children were safe from
molestations, made inconsistent statements about her knowledge of the
incidents of molestation, and denied that the Children needed counseling. Her
actions caused the Children to be placed in foster care, where they remained for
Court of Appeals of Indiana | Memorandum Decision 53A01-1511-DR-1879 | August 4, 2016 Page 15 of 22 over a year. We cannot say that the trial court erred in awarding custody to
Father.
[29] We conclude that, based on this evidence, there was a substantial change in the
Children’s interaction and interrelationship with Mother because she failed to
protect the Children from being sexually abused by N.H. The evidence
established that, although Mother was aware of an incident of molestation by
N.H. in 2012, she failed to take proper actions to ensure the safety of the
Children from further molestation. Mother’s arguments to the contrary are
requests for this court to reweigh the evidence, which we cannot do. In re
Marriage of Sutton, 16 N.E.3d at 484.
II. Best Interests of the Children [30] Mother argues that the trial court erred in awarding custody to Father because
its determination that a modification of custody was in the Children’s best
interests was an abuse of discretion. She specifically contends that it was error
to modify custody in favor of Father due to his history of domestic and family
violence, substance abuse, and his lack of a relationship with the Children.
Mother further asserts that the trial court failed to consider the Children’s
adjustment to their home, school, and community when it modified custody.
[31] Initially, we note that Mother’s argument is merely an invitation for this court
to reweigh the evidence, which we do not do on appeal. Id. In its order
modifying custody, the trial court made specific findings and conclusions
regarding allegations of domestic violence and Father’s alcohol abuse. In its
Court of Appeals of Indiana | Memorandum Decision 53A01-1511-DR-1879 | August 4, 2016 Page 16 of 22 findings, the trial court discussed Mother’s allegations of domestic violence, the
fact that the couple argued regularly, that the police were called once due to an
argument, Father’s alcohol abuse, and his alcohol-related offenses. Appellant’s
App. at 14, 18. In its conclusions, the trial court discussed Mother’s allegations
of domestic abuse and concluded that, “[g]iven [Mother’s] evasive and
untruthful testimony, there is insufficient evidence to conclude that acts of
domestic violence occurred between [Father] and [Mother] during their
marriage.” Id. at 20. We, therefore, find that the trial court considered
Mother’s allegations of domestic violence and found them not to be credible,
which was totally within the court’s province to do, and we give deference to
that determination. Bailey, 7 N.E.3d at 343.
[32] As for Father’s history of alcohol abuse, the trial court concluded that Father
clearly had a history and it was of great concern. Appellant’s App. at 20.
However, Father’s two convictions for drunk driving were over thirteen years
before the hearing dates, and Father had recently undergone alcohol treatment
as part of his probation. Id. The trial court also concluded that although
Father’s alcohol abuse was concerning, he had established a stable home, living
with his girlfriend and her two children and maintaining stable employment.
We, therefore, find that the trial court considered Father’s history of alcohol
abuse and weighed the evidence in making its determination, which was totally
within the court’s province to do, and we give deference to that determination.
Bailey, 7 N.E.3d at 343.
Court of Appeals of Indiana | Memorandum Decision 53A01-1511-DR-1879 | August 4, 2016 Page 17 of 22 [33] As to Father’s lack of a close relationship with the Children, the trial court
made findings regarding Mother’s consistent denial of contact between Father
and the Children. Mother initially took the Children with her to the United
States without any notice to Father, and then after agreeing that they would
return to England, Mother never used the plane tickets purchased by Father.
Appellant’s App. at 14. After the Agreed Visitation Orders were issued by the
court in Virginia, Mother never allowed the Children to visit Father in England.
Id. Although Father did have contact with the Children via telephone and
webcam, Mother later cut off all contact between the Children and Father after
the dissolution decree was issued. Id. at 14, 15. After the Children were
removed from Mother’s custody and placed in foster care, Father resumed
contact with the Children, which continued up to the date of the modification
hearings. Id. at 17. Therefore, Father’s prior lack of a close relationship with
the Children was largely Mother’s creation. It was within the purview of the
trial court to reject any allegations regarding the lack of a close relationship.
[34] Lastly, Mother’s assertion that the trial court failed to consider the Children’s
adjustment to their home, school, and community when it modified custody
ignores the fact that the Children had been removed from Mother’s home and
in foster care for over a year at the time of the modification hearings, which had
already necessitated a change in home and school. Mother’s argument seems
to be that the trial court erred in granting modification because there was not
sufficient evidence to conclude that a substantial change occurred in the
Children’s adjustment to their home, school, and community, necessitating
Court of Appeals of Indiana | Memorandum Decision 53A01-1511-DR-1879 | August 4, 2016 Page 18 of 22 modification. However, in making a determination to modify custody, the trial
court is only required to find a substantial change in one of the factors
enumerated in Indiana Code sections 31-17-2-8 or 31-17-2-8.5. Ind. Code § 31-
17-2-21(a). Here, the trial court found that a substantial change had occurred in
the interaction and interrelationship of the Children and Mother, which was
sufficient to modify custody. We, therefore, conclude that the trial court did
not abuse its discretion in finding that modification of custody to Father was in
the best interests of the Children.
III. Cross-Appeal [35] Father cross-appeals, arguing that the trial court abused its discretion when it
granted Mother unsupervised parenting time with the Children. He contends
that granting Mother unsupervised parenting time would endanger the
Children’s physical health or significantly impair their well-being and emotional
development. Father asserts that, at the time of the final hearings dates, Mother
only had supervised visitation with the Children and that DCS believed it was
in the Children’s best interests not to be left unsupervised with Mother due to
her failure to previously protect them from years of sexual abuse. He also
claims that the safeguards that the trial court put in place were insufficient to
protect the Children.
[36] “‘In all visitation controversies, courts are required to give foremost
consideration to the best interests of the child.’” Hatmaker v. Hatmaker, 998
N.E.2d 758, 760 (Ind. Ct. App. 2013) (quoting Marlow v. Marlow, 702 N.E.2d
733, 735 (Ind. Ct. App. 1998), trans. denied). We review parenting time Court of Appeals of Indiana | Memorandum Decision 53A01-1511-DR-1879 | August 4, 2016 Page 19 of 22 decisions for an abuse of discretion. Id. at 761. A trial court abuses its
discretion when its decision is clearly against the logic and effect of the facts
and circumstances before the court or if the court has misinterpreted the law.
Id. If the record reveals a rational basis supporting the trial court’s
determination, no abuse of discretion is found. Marlow, 702 N.E.2d at 735. We
will not reweigh evidence or judge the credibility of witnesses. Id.
[37] “The right of non-custodial parents to visit with their children is a ‘sacred and
precious privilege.’” Appolon v. Faught, 796 N.E.2d 297, 300 (Ind. Ct. App.
2003) (quoting McCauley v. McCauley, 678 N.E.2d 1290, 1292 (Ind. Ct. App.
1997), trans. denied). Restriction of parenting time is governed by Indiana Code
section 31-17-4-1(a), which provides:
A parent not granted custody of the child is entitled to reasonable parenting time rights unless the court finds, after a hearing, that parenting time by the noncustodial parent might endanger the child’s physical health or significantly impair the child’s emotional development.
“Even though the statute uses the word ‘might,’ this [c]ourt has previously
interpreted the language to mean that a court may not restrict parenting time
unless that parenting time ‘would’ endanger the child’s physical health or
emotional development.” Hatmaker, 998 N.E.2d at 761 (citing D.B. v. M.B.V.,
913 N.E.2d 1271, 1274 (Ind. Ct. App. 2009)). A party who seeks to restrict a
parent’s visitation rights bears the burden of presenting evidence justifying such
a restriction. Id. The burden of proof is by a preponderance of the evidence.
Id. Court of Appeals of Indiana | Memorandum Decision 53A01-1511-DR-1879 | August 4, 2016 Page 20 of 22 [38] Here, in its order, the trial court made conclusions regarding Mother’s
parenting time, specifically that establishing appropriate parenting time that
sufficiently protects the health and safety of the Children is complicated by
Mother’s failure to protect the Children in the past and that the distance
between the parents further complicates the issue. Appellant’s App. at 21. The
trial court concluded that certain restrictions should be placed on Mother’s
parenting time, including that Mother must not allow N.H. to have any contact
with the Children and that when the Children are in her care, Father should be
allowed to communicate with the Children via Skype, telephone, or other
electronic means for thirty minutes, three times per week without Mother
listening to the communication. Id. Additionally, Mother was ordered that she
must allow DCS representatives to have immediate access to the Children at
any time during her parenting time. Id. at 22. Any violations of the trial court’s
order shall be punishable by contempt, including incarceration. Id.
[39] It was within the trial court’s discretion to grant unsupervised parenting time,
and the trial court set up safeguards to ensure the safety of the Children. Such
safeguards were to be followed with the consequence of contempt for non-
compliance. We, therefore, conclude that it was not against the logic and effect
of the facts and circumstances before the court to grant Mother unsupervised
parenting time with the Children and adequate safeguards were put in place to
protect the Children. The trial court did not abuse its discretion.
[40] Affirmed.
Court of Appeals of Indiana | Memorandum Decision 53A01-1511-DR-1879 | August 4, 2016 Page 21 of 22 Riley, J., and Pyle, J., concur.
Court of Appeals of Indiana | Memorandum Decision 53A01-1511-DR-1879 | August 4, 2016 Page 22 of 22