FILED Feb 16 2024, 9:48 am
CLERK Indiana Supreme Court Court of Appeals and Tax Court
IN THE
Court of Appeals of Indiana In the Matter of A.M.J. and A.L.J., Minor Children Alleged to be Children in Need of Services; S.J. (Father), Appellant-Respondent
v.
Indiana Department of Child Services, Appellee-Petitioner
February 16, 2024 Court of Appeals Case No. 23A-JC-2241 Appeal from the Allen Superior Court The Honorable Lori K. Morgan, Judge The Honorable Sherry A. Hartzler, Magistrate Trial Court Cause Nos. 02D08-2203-JC-149 02D08-2203-JC-150
Court of Appeals of Indiana | Opinion 23A-JC-2241 | February 16, 2024 Page 1 of 22 02C01-1007-JP-465
Opinion by Judge Tavitas Judges Mathias and Weissmann concur.
Tavitas, Judge.
Case Summary [1] S.J. (“Father”) appeals the trial court’s order modifying custody of his sons,
A.M.J. and A.L.J. (collectively “the Children”), in favor of L.G. (“Maternal
Grandmother”). The Children previously lived with Maternal Grandmother
after the death of their mother. After the Children returned to Father, they
were adjudicated CHINS based, in part, on Father’s substance abuse and
physical abuse of the Children. The Children were removed from Father and
placed with Maternal Grandmother throughout the CHINS proceedings, during
which Father made little progress on the services he was required to complete.
The trial court then modified custody of the Children in favor of Maternal
Grandmother. Father argues that the trial court erred by modifying custody
because the trial court should have given him more chances to complete the
services and work towards reunification. We are not persuaded by Father’s
arguments. Accordingly, we affirm.
Court of Appeals of Indiana | Opinion 23A-JC-2241 | February 16, 2024 Page 2 of 22 Issue [2] Father raises one issue, which we restate as whether the trial court abused its
discretion by modifying custody in favor of Maternal Grandmother.
Facts [3] A.M.J. and A.L.J. are the sons of Father and A.G. (“Mother”). A.M.J. was
born in March 2010, and A.L.J. was born in June 2012. Father’s paternity was
later adjudicated, and on May 20, 2014, the paternity court awarded Mother
primary physical custody of the Children.
[4] In November 2016, Mother died from an overdose. In re A.L.J., No. 22A-JC-
2558, slip op. p. 4 (Ind. Ct. App. May 11, 2023) (mem.). At the time, Father
was incarcerated or on home detention, and he either requested or consented to
the Children living with Maternal Grandmother. The Children lived with
Maternal Grandmother for the next three years.
[5] At some point, the Children began living with Father. The Department of
Child Services (“DCS”) received reports that Father was abusing alcohol and
drugs and was physically abusing the Children. In March 2022, DCS removed
the Children from Father and placed them with Maternal Grandmother and
filed a petition that alleged the Children were children in need of services
(“CHINS” and “CHINS petition”). 1 The Children remained with Maternal
1 The CHINS petition was filed pursuant to Indiana Code Section 31-34-1-1, which provides:
A child is a child in need of services if before the child becomes eighteen (18) years of age:
Court of Appeals of Indiana | Opinion 23A-JC-2241 | February 16, 2024 Page 3 of 22 Grandmother throughout the CHINS proceedings. Father was originally
ordered to have supervised visits with the Children; however, the trial court
later ordered that those visits be “therapeutic[ally] supervised.” Tr. Vol. II p.
10.
[6] On June 13, 2022, the trial court adjudicated the Children to be CHINS. In its
order, the trial court found the following: Father physically abused the
Children, often “for no reason”; Father “put a gun to [A.L.J.]’s face with
[Father’s] finger on the trigger”; the Children witnessed Father engage in
domestic violence with his partner; Father had previous convictions for
domestic battery and a history of involvement with DCS; A.L.J. felt “terrified”
of Father and “unsafe” around him; A.M.J. had trouble sleeping at Father’s
house due to Father’s behavior, which affected A.M.J.’s performance at school;
Father drove while intoxicated with the Children in the vehicle; Father tested
positive for cocaine and “cannabinoids/THC” 2 on the day the CHINS petition
was filed and used cocaine on at least one additional occasion during the
(1) the child’s physical or mental condition is seriously impaired or seriously endangered as a result of the inability, refusal, or neglect of the child’s parent, guardian, or custodian to supply the child with necessary food, clothing, shelter, medical care, education, or supervision: (A) when the parent, guardian, or custodian is financially able to do so; or (B) due to the failure, refusal, or inability of the parent, guardian, or custodian to seek financial or other reasonable means to do so; and (2) the child needs care, treatment, or rehabilitation that: (A) the child is not receiving; and (B) is unlikely to be provided or accepted without the coercive intervention of the court. 2 Tetrahydrocannabinol, commonly abbreviated as THC, is the main active chemical in marijuana. Medina v. State, 188 N.E.3d 897, 900 (Ind. Ct. App. 2022).
Court of Appeals of Indiana | Opinion 23A-JC-2241 | February 16, 2024 Page 4 of 22 CHINS proceedings; and Father had not engaged in any of the services offered
by DCS. Ex. Vol. pp. 74-76.
[7] In its June 28, 2022 dispositional order, the trial court ordered Father to, as
relevant here: (1) refrain from criminal activity and “physical discipline” of the
Children; (2) refrain from the use of alcohol, illegal drugs, and other substance
abuse; (3) complete substance abuse treatment recommendations and submit to
random drug screening; (4) complete a drug and alcohol counseling program,
family counseling program, and home based services program, including
“parenting, discipline, developmental stages, coping skills, and stress
management without substance use”; (5) submit to a diagnostic assessment to
“identify and recommend reunification/preservation services” and follow those
recommendations; (6) cooperate with DCS caseworkers and the guardian ad
litem (“GAL”); and (7) attend and “appropriately participate” in all visits with
the Children. Id. at 78-79.
[8] Father appealed the CHINS adjudication, and in an unpublished opinion, this
Court affirmed the adjudication. See A.L.J, No. 22A-JC-2558. In particular,
this Court noted that: A.M.J. wrote a letter to school personnel stating that he
“wished Father would stop physically abusing him”; A.L.J. reported that
Father “waved” a gun in A.L.J.’s face, Father’s “finger slipped on the trigger,”
and the gun fired, with the bullet missing A.L.J. “by mere inches”; Father
“admitted to hitting the Children with an open hand on the back of their heads
on a daily basis and giving them a ‘good whooping’ about once a month”; the
Children were diagnosed with stress disorders based on Mother’s death and
Court of Appeals of Indiana | Opinion 23A-JC-2241 | February 16, 2024 Page 5 of 22 Father’s parenting; and the Children felt safer with Maternal Grandmother. Id.
at 2, 7, 10.
[9] In March 2023, the permanency plan changed from the concurrent plan of
reunification with Father or the granting of custody to Maternal Grandmother,
to only the granting of custody to Maternal Grandmother. On April 4, 2023,
DCS filed a “Motion for Permanency & Joinder,” in which DCS sought to join
Maternal Grandmother as a party to the CHINS proceedings and to modify
custody of the Children in her favor. Ex. Vol. p. 96. The trial court held a
hearing on that motion on June 11, 2023.
[10] At the hearing, the trial court heard testimony from Father’s caseworker,
Family Case Manager (“FCM”) Paulette Eldridge. According to FCM
Eldridge, Father had not started the court-ordered individual counseling
services, Father was disruptive during a group substance abuse treatment
program, and Father was unsuccessfully discharged from an individual
substance abuse treatment program because he was making only “minimal
progress.” Tr. Vol II p. 44. Father had also refused numerous drug screens
and, although he had several negative drug screens, Father had tested positive
for THC and cocaine during the previous few months. FCM Eldridge believed
it was “unsafe” for the Children to return to Father’s care. Id. at 48.
[11] The trial court also heard testimony from Zarifa Nazarov, the therapist who led
Father’s therapeutically supervised visits with the Children, which took place
weekly for one hour. Nazarov was chiefly concerned with Father’s anger
Court of Appeals of Indiana | Opinion 23A-JC-2241 | February 16, 2024 Page 6 of 22 management. According to her, Father “has a temper” and “[s]mall things set
him off and he becomes aggressive and talks in a high pitch.” Id. at 12. Father
would become aggressive and disrespectful when Nazarov intervened during
visits, and Nazarov often felt threatened and needed to “de-escalate” Father.
Id. at 30. On one occasion, Father became frustrated and, when Nazarov took
the Children to the parking lot to meet Maternal Grandmother, Father drove
around the parking lot and called Nazarov inappropriate names in the presence
of the Children. Father did not leave until one of the Children told him that
Nazarov felt threatened and would call the police. On a different occasion,
Father became frustrated when Nazarov intervened, approached Nazarov
aggressively, and ended the session early.
[12] After several months, due to Father’s behavior during visits, Wilbert Monroe,
Father’s Fatherhood Engagement services provider, also began attending the
visits to help Father manage his aggression. Nazarov testified that it was
“unusual” to have more than one person supervise visits. Id. at 23.
[13] Nazarov recommended that therapeutically supervised visits continue because
of Father’s inappropriate behavior and because Father had not begun court-
ordered parenting skills and anger management services. She was also
concerned with Father’s psychological evaluation, which placed him at an
“extremely high [risk] for future child abuse.” Id. at 56. Nazarov could not
predict when visits would progress from therapeutically supervised to
supervised.
Court of Appeals of Indiana | Opinion 23A-JC-2241 | February 16, 2024 Page 7 of 22 [14] The GAL was concerned with Father’s failure to complete services,
unwillingness to engage in substance abuse treatment, recent substance abuse
related charges, criminal history, and the risk of future child abuse. The GAL
recognized that the Children loved Father and that A.M.J. desired to return to
Father one day; however, the GAL recommended that visits remain
therapeutically supervised and that custody be modified in favor of Maternal
Grandmother.
[15] As for Maternal Grandmother, the Children were doing well in school, playing
sports, and thriving in her care. Maternal Grandmother testified that she would
facilitate Father’s continued involvement in the Children’s lives. Lastly, Father
testified and opposed the modification of custody. He requested that the trial
court give him more chances to complete services and work toward
reunification.
[16] On August 31, 2023, the trial court issued its order joining Maternal
Grandmother in the proceedings, granting custody of the Children to her, and
terminating DCS’s wardship over the Children. In doing so, the trial court
found the following: (1) Father has not demonstrated “appropriate parenting
techniques, despite having received homebased parenting education”; (2)
Father behaved inappropriately during visits; (3) Father has not refrained from
abusing substances and was unwilling to do so; (4) Father tested positive for
“marijuana and cocaine” in May 2023; (5) Father had “pending criminal
charges and prior convictions for resisting arrest, conversion, and public
nudity” and a “history of convictions related to substance abuse”; (6) despite
Court of Appeals of Indiana | Opinion 23A-JC-2241 | February 16, 2024 Page 8 of 22 the age of the case, visits had not progressed beyond one hour weekly; (7)
Father “wa[]ved a gun in the face of [A.L.J.]”; (8) the Children were “not safe”
in Father’s care; and (9) the Children were “thriving” in Maternal
Grandmother’s care. Appellant’s App. Vol. II pp. 35-37.
[17] The trial court concluded:
26. The Court finds that there has been a change of circumstances so substantial and continuing as to make the terms of the custody, support and parenting time orders entered by the court . . . unreasonable. The Court finds that there has been a substantial change in one or more of the factors which the Court may consider under I.C. 31- 14-13-2 and I.C. 31-14-[1]3-6 for purposes of modifying custody.
27. [F]rom the facts recited hereinabove, including the fact that [Father has] not completed the services required for reunification in the Child In Need of Services case, the Court concludes that [the] presumption favoring [Father] has been rebutted.
28. The Court find[s] that there is clear and convincing evidence that it is in the best interests of the children to grant [Maternal Grandmother] sole legal and physical custody.
29. The Court ultimately concludes that these proceedings began with child abuse and now unfortunately end with a high probability of child abuse occurring, but for the protection of placement with [Maternal Grandmother]. Despite there being some benefit from services and a bond observed with the Father and children, it is not presently safe to expand visitations beyond one hour in a therapeutic session with three professionals to redirect Father and
Court of Appeals of Indiana | Opinion 23A-JC-2241 | February 16, 2024 Page 9 of 22 protect the children. Father further has not addressed his substance use and continues to use illegal substances and has not demonstrated an ability to benefit from substance abuse counseling.
Id. at 37-38. Father now appeals.
Discussion and Decision [18] Father argues that the trial court erred by modifying custody in favor of
Maternal Grandmother. Father has not carried his burden of persuasion.
I. Standard of Review
[19] As a general matter,
[T]here is a well-established preference in Indiana for granting latitude and deference to our trial judges in family law matters. Appellate courts are in a poor position to look at a cold transcript of the record, and conclude that the trial judge, who saw the witnesses, observed their demeanor, and scrutinized their testimony as it came from the witness stand, did not properly understand the significance of the evidence. On appeal it is not enough that the evidence might support some other conclusion, but it must positively require the conclusion contended for by appellant before there is a basis for reversal.
Hahn-Weisz v. Johnson, 189 N.E.3d 1136, 1141 (Ind. Ct. App. 2022) (quoting
Steele-Giri v. Steele, 51 N.E.3d 119, 124 (Ind. 2016)) (internal citations omitted).
Given our deferential review, we review orders granting custody to a third party
rather than a natural parent only for abuse of discretion. In re Paternity of L.J.,
Court of Appeals of Indiana | Opinion 23A-JC-2241 | February 16, 2024 Page 10 of 22 223 N.E.3d 716, 720 (Ind. Ct. App. 2023); accord K.I. ex rel. J.I. v. J.H., 903
N.E.2d 453, 457 (Ind. 2009).
[20] Additionally, where, as here, neither party requested special findings under
Indiana Trial Rule 52(A) and the trial court entered its findings and conclusions
sua sponte:
[W]e apply the two-tiered standard of whether the evidence supports the findings, and whether the findings support the judgment.” In re S.D., 2 N.E.3d 1283, 1287 (Ind. 2014). We reverse “the findings only if they are clearly erroneous.” In re Adoption of I.B., 32 N.E.3d 1164, 1169 (Ind. 2015). We review any remaining issues under the general judgment standard, under which we will affirm the judgment “if it can be sustained on any legal theory supported by the evidence.” S.D., 2 N.E.3d at 1287. We neither reweigh the evidence nor judge the credibility of the witnesses, and we review the trial court’s legal conclusions de novo. Perkinson v. Perkinson, 989 N.E.2d 758, 761 (Ind. 2013).
Hahn-Weisz, 189 N.E.3d at 1141. When, as in this case, the factual findings are
unchallenged, we accept those findings as true. In re C.C., 170 N.E.3d 669, 675
(Ind. Ct. App. 2021) (citing In re S.S., 120 N.E.3d 605, 614 n.2 (Ind. Ct. App.
2019)).
Court of Appeals of Indiana | Opinion 23A-JC-2241 | February 16, 2024 Page 11 of 22 II. Concurrent Jurisdiction
[21] We first clarify that the trial court had concurrent jurisdiction to modify custody
of the Children here. At the time of the custody hearing, Indiana Code Section
31-30-1-13 provided, in relevant part: 3
(a) Subject to subsection (b), a court having jurisdiction under IC 31-14 over establishment or modification of paternity, child custody, parenting time, or child support in a paternity proceeding has concurrent original jurisdiction with another juvenile court for the purpose of establishing or modifying paternity, custody, parenting time, or child support of a child who is under the jurisdiction of the other juvenile court because:
(1) the child is the subject of a child in need of services proceeding; or
(2) the child is the subject of a juvenile delinquency proceeding that does not involve an act described under IC 31-37-1-2.
*****
(c) If, under this section, a juvenile court:
3 After the hearing in this matter but before the trial court’s order was issued, Indiana Code Section 31-30-1- 13 was subsequently amended to its current language, which explicitly states that “a court having jurisdiction over a child who is the subject of a child in need of services proceeding or juvenile delinquency proceeding has concurrent jurisdiction with a court having jurisdiction under IC 31-14 [paternity actions] for the purpose of establishing or modifying paternity, custody, parenting time, or child support of the child.” Ind. Code § 31-30-1-13(b) (effective July 1, 2023). Under either version of the statute, the trial court had concurrent jurisdiction here.
Court of Appeals of Indiana | Opinion 23A-JC-2241 | February 16, 2024 Page 12 of 22 (1) establishes or modifies paternity, custody, child support, or parenting time of a child; and
(2) terminates a child in need of services proceeding or a juvenile delinquency proceeding regarding the child;
the order establishing or modifying paternity, custody, child support, or parenting time survives the termination of the child in need of services proceeding or the juvenile delinquency proceeding until the court having concurrent original jurisdiction under subsection (a) assumes or reassumes primary jurisdiction of the case to address all other issues.
(d) A court that assumes or reassumes jurisdiction of a case under subsection (c) may modify child custody, child support, or parenting time in accordance with applicable modification statutes.[ 4]
As this Court has observed, this statute “evidences a clear intent by the
legislature for a CHINS court to be able to establish or modify custody, child
support, or parenting time of a child over whom it exercises jurisdiction,” even
when the child is also subject to a paternity action. 5 M.M. v. Ind. Dep’t of Child
Servs., 118 N.E.3d 70, 77 (Ind. Ct. App. 2019).
4 Indiana Code Section 31-30-1-12 contains similar provisions regarding concurrent jurisdiction between trial courts in dissolution and children in need of services cases. 5 We note that Indiana Code Section 31-17-2-3(a)(3) requires that a child custody proceeding be commenced by “a child, by the child’s next friend, if the child is the subject of a” CHINS petition. A “child’s next friend” means “(1) the department; (2) the child’s court appointed special advocate; or (3) the child’s guardian ad litem.” I.C. § 31-17-2-3(b). As Father makes no argument regarding this statute, we do not address it.
Court of Appeals of Indiana | Opinion 23A-JC-2241 | February 16, 2024 Page 13 of 22 III. Third-Party Custody
[22] Where a third party seeks to modify custody in favor of the third party rather
than the natural parent, our courts engage in a three-step analysis. First,
Indiana recognizes the presumption that “‘natural parents are entitled to the
custody of their minor children, except when they are unsuitable persons to be
entrusted with their care, control, and education.’” In re Guardianship of B.H.,
770 N.E.2d 283, 285 (Ind. 2002) (quoting Gilmore v. Kitson, 74 N.E. 1083, 1084
(Ind. 1905)). The parent “comes to the table with a ‘strong presumption that a
child’s interests are best served by placement with the natural parent.’” K.I.,
903 N.E.2d at 460 (quoting B.H., 770 N.E.2d 287)). Accordingly, when
custody is at issue between a third party and a natural parent, we begin with the
presumption in favor of the natural parent. Id.
[23] In the second step, the third party must rebut the natural-parent presumption
with clear and convincing evidence. Id.; B.H., 770 N.E.3d at 287. “‘The
presumption will not be overcome merely because a third party could provide
the better things in life for the child.’” B.H., 770 N.E.2d at 287. Instead, in
determining whether the presumption is overcome, the trial court may seek
“guidance” from the three Hendrickson 6 factors: “(i) unfitness on the part of the
parent, (ii) long acquiescence in the third party’s custody of the child, or (iii)
voluntary relinquishment of the child such that the affections of the child and
6 Hendrickson v. Binkley, 316 N.E.2d 376 (1974).
Court of Appeals of Indiana | Opinion 23A-JC-2241 | February 16, 2024 Page 14 of 22 third party have become so interwoven that to sever them would seriously mar
and endanger the future happiness of the child.” K.I., 903 N.E.2d at 459. The
trial court is also free to rely on relevant factors other than the Hendrickson
factors. Id.
[24] Additionally, in determining whether the natural-parent presumption has been
overcome, the trial court must make “‘detailed and specific findings . . . .’” In re
Guardianship of B.W., 45 N.E.3d 860, 866 (Ind. Ct. App. 2015) (quoting B.H.,
770 N.E.2d at 287). “A generalized finding that placement with a third party is
in the child’s best interests is insufficient to overcome the presumption in favor
of the natural parent.” Id. (citing B.H., 770 N.E.2d at 287). “And if a decision
to place custody of a child in a third party, rather than a parent, is based solely
upon the child’s ‘best interests,’ as opposed to a finding of parental unfitness,
abandonment, or other wrongdoing, ‘such interests should be specifically
delineated, as well as be compelling and in the real and permanent interests of
the child.’” Id. (quoting In re Guardianship of L.L., 745 N.E.2d 222, 231 (Ind. Ct.
App. 2001), trans. denied).
[25] If the third party overcomes the natural-parent presumption, the trial court
proceeds to the third step. In the third step, the third party must demonstrate
that, based on the relevant custody statutes, a “substantial change” occurred
and that “‘the child’s best interests are substantially and significantly served by
placement’” with the third party. K.I., 903 N.E.2d at 460-61 (quoting B.H., 770
N.E.2d at 287); Ind. Code § 31-30-1-13(e) (providing that “[a] court that
assumes or reassumes jurisdiction of a case under subsection (d) [governing the
Court of Appeals of Indiana | Opinion 23A-JC-2241 | February 16, 2024 Page 15 of 22 modification of custody and termination of CHINS proceedings in the same
action] may modify child custody, child support, or parenting time in
accordance with applicable modification statutes”). 7 The third-party’s burden
of proof in this step remains proof by clear and convincing evidence. K.I., 903
N.E.2d at 460-61.
[26] In sum, to modify custody in favor of Maternal Grandmother here, the trial
court was required to begin with the presumption in favor of Father, the
Children’s natural parent. Then, in the second step, the trial court was required
to find by clear and convincing evidence that the natural-parent presumption
was overcome. Lastly, if the trial court so found, the trial court was required to
find, also by clear and convincing evidence, that, based on the relevant custody
statutes: (1) a substantial change occurred, and (2) modifying custody was in
the Children’s best interests.
IV. The trial court did not abuse its discretion by modifying custody in favor of Maternal Grandmother
[27] We conclude that the trial court did not abuse its discretion by modifying
custody in favor of Maternal Grandmother. Beginning with the natural-parent
presumption, DCS overcame this presumption with evidence that Father was
“unfit[]” as a parent. K.I., 903 N.E.2d at 459.
7 This provision was codified at subsection (d) at the time of the custody hearing here.
Court of Appeals of Indiana | Opinion 23A-JC-2241 | February 16, 2024 Page 16 of 22 [28] Father’s unfitness is demonstrated by his substance abuse and physical abuse of
the Children. The Children were adjudicated CHINS based, in part, on these
factors. And despite services offered in the CHINS proceeding, Father’s
substance abuse was unresolved. Father abused alcohol, marijuana, and
cocaine; drove while intoxicated with the Children in the vehicle; and has
several substance abuse related convictions. By the time of the custody hearing
here, Father had failed several drug tests, failed to complete substance abuse
related treatment services, and had not demonstrated any willingness to curb
his substance abuse. Cf. In re Adoption of T.W., 859 N.E.2d 1215, 1218 (Ind. Ct.
App. 2006) (affirming finding that parent was unfit based, in part, on parent’s
“drug use and criminal convictions” and affirming children’s adoption by
relatives).
[29] As for Father’s physical abuse of the Children, Father admitted at the CHINS
fact-finding hearing that he regularly physically disciplined the Children.
Inexplicably, Father also accidentally fired a gun near A.L.J.’s head. Father
and the Children engaged in therapeutically supervised visits to help the family
address trauma and work toward reunification; however, Father demonstrated
aggressive tendencies toward the therapist and failed to demonstrate proper
anger management and appropriate parenting skills. Psychological testing
placed Father at an extremely high risk of abusing the Children in the future.
The trial court concluded that the Children were “not safe” in Father’s care.
Appellant’s App. Vol. II p. 37.
Court of Appeals of Indiana | Opinion 23A-JC-2241 | February 16, 2024 Page 17 of 22 [30] Turning to the significant change and best interests elements, the trial court
relied on statutes governing modification of custody in paternity actions,
Indiana Code Sections 31-14-13-2 and 31-14-13-6. Indiana Code Section 31-14-
13-6 provides:
The court may not modify a child custody order unless:
(1) 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 [Indiana Code Section 31-14-13-2] and, if applicable, [Indiana Code Section 31-14-13-2.5].
Indiana Code Section 31-14-13-2, in turn, provides:
The court shall determine custody in accordance with the best interests of the child. In determining the child’s best interests, there is not a presumption favoring either parent. The court shall consider all relevant factors, including the following:
(1) The age and sex of the child.
(2) The wishes of the child’s parents.
(3) The wishes of the child, with more consideration given to the child’s wishes if the child is at least fourteen (14) years of age.
(4) The interaction and interrelationship of the child with:
(A) the child’s parents;
Court of Appeals of Indiana | Opinion 23A-JC-2241 | February 16, 2024 Page 18 of 22 (B) the child’s siblings; and
(C) any other person who may significantly affect the child’s best interest.
(5) The child’s adjustment to home, school, and community.
(6) The mental and physical health of all individuals involved.
(7) Evidence of a pattern of domestic or family violence by either parent.
(8) Evidence that the child has been cared for by a de facto custodian, and if the evidence is sufficient, the court shall consider the factors described in [Indiana Code Section 31-14-13- 2.5].[ 8]
[31] The trial court found that, based on these statutes, a substantial change
occurred and modifying custody was in the Children’s best interests. Father’s
substance abuse and physical abuse of the Children, coupled with the fact that
the Children were thriving with Maternal Grandmother, support this finding.
See Ind. Code § 31-14-13-2 (listing relevant factors as the “interaction and
interrelationship of the child with . . . the child’s parents,” (§ 2(4)(A)); the
8 Indiana Code Section 31-14-13-2.5(a) provides, “This section applies only if the court finds by clear and convincing evidence that the child has been cared for by a de facto custodian.” The trial court here did not make a finding regarding whether Maternal Grandmother was a de facto custodian of the Children. Accordingly, we do not analyze this statute. Cf. Hahn-Weisz, 189 N.E.3d at 1141 (Ind. Ct. App. 2022) (declining to analyze de facto custodian statute applicable in dissolution proceedings, Indiana Code Section 31-17-2-8.5, when trial court made no findings regarding de facto custodianship).
Court of Appeals of Indiana | Opinion 23A-JC-2241 | February 16, 2024 Page 19 of 22 “child’s adjustment to home” (§ 2(5)); the “mental and physical health of all
individuals involved (§ 2(6)); and a “pattern of . . . family violence” by the
parent” (§ 2(7))).
[32] Father makes no argument regarding whether the evidence overcame the
natural-parent presumption. Rather, Father only challenges the best interests
element. Father argues that he made progress in his Fatherhood Engagement
program, which did not begin until December 2022. Father also argues that his
visits with the Children improved after Monroe became involved. Father
ultimately argues that he should be given more chances to complete the court-
ordered services and that “[m]oving this quickly to permanency, through a
change of custody to the maternal grandmother, does not allow Father to
continue with his improvement and succeed through reunification with his
children.” 9 Appellant’s Br. pp. 15-16.
[33] We are not persuaded by this argument, as Father has had ample time to make
progress on the court-ordered services. The Children were removed in March
2022 and adjudicated CHINS in June 2022. On June 28, 2022, the trial court
ordered Father to engage in services. By the time the custody hearing took
place on June 11, 2023, nearly one year had passed since the trial court ordered
Father to engage in these services. Although Father was participating in the
9 Additionally, Father argues that the trial court erred by finding that “the conditions that gave rise to the children’s removal would not be remedied.” Appellant’s Br. p. 15. The trial court made no such finding, and moreover, that standard applies in termination of parental rights proceedings, see Ind. Code § 31-35-2- 4(b)(2)(B)(i), which are not at issue here.
Court of Appeals of Indiana | Opinion 23A-JC-2241 | February 16, 2024 Page 20 of 22 Fatherhood Engagement program, he had not completed any of the other
required services. Father had also not demonstrated meaningful progress on his
substance abuse treatment. Finally, Father and the Children had engaged in
therapeutically supervised visits for over one year, yet the therapist was unable
to predict when visits would progress to supervised, let alone unsupervised,
visits.
[34] Based on these circumstances, we cannot say that the trial court erred by
finding that the natural-parent presumption was overcome, that a significant
change occurred, and that modifying custody in favor of Maternal
Grandmother was in the Children’s best interests. Accordingly, the trial court
did not abuse its discretion by modifying custody.
Conclusion [35] We cannot say that the trial court abused its discretion by modifying custody of
the Children in favor of Maternal Grandmother. Accordingly, we affirm.
[36] Affirmed.
Mathias, J., and Weissmann, J., concur.
ATTORNEY FOR APPELLANT Roberta L. Renbarger Fort Wayne, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Court of Appeals of Indiana | Opinion 23A-JC-2241 | February 16, 2024 Page 21 of 22 Marjorie Lawyer-Smith Deputy Attorney General Indianapolis, Indiana
Court of Appeals of Indiana | Opinion 23A-JC-2241 | February 16, 2024 Page 22 of 22