MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Jul 31 2018, 8:21 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 Nicole A. Zelin Julie A. Camden Pritzke & Davis, LLP Camden & Meridew, P.C. Greenfield, Indiana Fishers, Indiana
IN THE COURT OF APPEALS OF INDIANA
In re The Matter of July 31, 2018 D.G. (Minor Child): Court of Appeals Case No. 18A-JC-156 J.E. (Mother), Appeal from the Hancock Circuit Court Appellant-Respondent, The Honorable Richard D. Culver, v. Judge N.G. (Father), The Honorable R. Scott Sirk, Court Commissioner Appellee-Respondent, Trial Court Cause No. and 30C01-1609-JC-338
The Indiana Department of Child Services, Appellee-Petitioner.
Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-JC-156 | July 31, 2018 Page 1 of 25 Case Summary and Issues [1] J.E. appeals the juvenile court’s custody determination which provided for joint
physical and legal custody of her son, D.G. (“Child”). J.E. raises four issues for
our review, which we restate as 1) whether sufficient evidence supported a
modification of custody, 2) whether the juvenile court abused its discretion
when it excluded J.E.’s proffered evidence, 3) whether the juvenile court was
the appropriate forum for the custody determination, and 4) whether the
juvenile court abused its discretion when it denied J.E.’s motion to correct error
seeking a child support arrearage order. Concluding that the juvenile court did
not abuse its discretion when it ordered that the parties exercise joint custody of
Child, any error in the exclusion of J.E.’s evidence was harmless, the juvenile
court was the appropriate court to render the custody determination, and that,
even if J.E. had not waived her claim, the juvenile court did not abuse its
discretion in denying J.E.’s Motion to Correct Error, we affirm.
Facts and Procedural History [2] Child was born in June of 2011 to J.E. and N.G. (“Father”), who continued to
cohabitate until approximately eighteen months after Child’s birth. Between
approximately January of 2013 and November 9, 2014, Father had contact with
Child on a weekly basis. In February of 2015, Father, who resided in Marion
County, filed a petition in Marion Circuit Court (“the paternity court”) to
establish paternity and a child support order (“the paternity case”). On May 11,
2015, the paternity court issued its order establishing paternity, granting sole
Court of Appeals of Indiana | Memorandum Decision 18A-JC-156 | July 31, 2018 Page 2 of 25 physical custody to J.E., and ordering Father to pay $161.00 per week for
Child’s support. The paternity court did not issue any order regarding
parenting time. Thereafter, Father saw Child approximately once each month.
In July of 2016, Father moved to establish parenting time and for a
modification of the child support order.
[3] On September 23, 2016, J.E., who was living in Hancock County with Child,
was arrested for possession of marijuana, Xanax, Suboxone, and paraphernalia.
J.E. was also charged with neglect of a dependent for leaving Child without a
caregiver. The Indiana Department of Child Services (“DCS”) filed a verified
petition in the Hancock Circuit Court (“the juvenile court”) alleging that Child
was a Child in Need of Services (“the CHINS case”) based upon the fact that
J.E. had been arrested and was incarcerated. Child was removed from J.E.’s
care and placed with his maternal grandparents.
[4] On September 28, 2016, Father moved for custody of Child in the paternity
case. On October 5, 2016, J.E. and Father appeared in the CHINS case. J.E.
admitted that she had ongoing substance abuse issues. J.E. and Father
admitted that Child was a CHINS. The juvenile court adjudicated Child a
CHINS and placed Child with Father. Child was to be transitioned over the
course of a month from the maternal grandparents’ home to Father’s home so
that Child could become acclimated to Father and his home. J.E. was to have
supervised parenting time with Child. On October 11, 2016, the paternity court
stayed proceedings on Father’s custody motion in light of the ongoing CHINS
proceedings. Child was fully transitioned to Father’s home by November 1,
Court of Appeals of Indiana | Memorandum Decision 18A-JC-156 | July 31, 2018 Page 3 of 25 2016. A dispositional hearing in the CHINS case was set for November 2,
2016.
[5] A pre-dispositional report prepared for the CHINS case revealed the following
facts. Both parents were employed at that time. Child, who was healthy and
appeared to be developing normally, had a strong bond with J.E., Father, and
his grandparents. Father had participated in Child and Family Team Meetings.
DCS recommended supervised parenting time, substance abuse assessment,
random drug screens, and home-based therapy for J.E. DCS recommended
that Father participate in father engagement services. The DCS’s permanency
plan was to reunite Child with J.E. Family Case Manager Jessica Clagg
appeared at the dispositional hearing and reported that Child’s transition to
Father’s home was going well. The juvenile court adopted the DCS
recommendation for services for J.E. and Father and continued Child’s
placement with Father.
[6] On December 27, 2016, Father moved for custody of Child in the CHINS case
alleging that J.E. was unable to care for Child, J.E. had a history of denying
Father parenting time, J.E. had an ongoing criminal case, and that a custody
modification was in Child’s best interests. DCS progress reports filed with the
juvenile court on December 29, 2016, and March 3, 2017, indicated that Child
was doing well in Father’s home, enjoying good physical and psychological
health. One report noted that “[Child] is currently place[d] with his Father, [],
as he is able to provide him with a safe, stable home and meet all of his needs.”
Appellant’s Appendix, Volume II at 65. The report concluded that Child’s
Court of Appeals of Indiana | Memorandum Decision 18A-JC-156 | July 31, 2018 Page 4 of 25 placement with Father helped all of Child’s caregivers to maintain their bond
with Child and that Child had stability in his school and routine. Both parents
were engaging in services. DCS added a recommendation that J.E. begin
intensive outpatient treatment for her substance abuse issues. J.E. had
exercised her parenting time and had begun having Child for overnight stays in
her home twice a week.
[7] On March 15, 2017, the juvenile court held a combined hearing on Father’s
custody motion and to review matters in the CHINS case. Case Manager
Clagg testified at the hearing that Child continued to do well in Father’s home
and that she had no safety concerns. Clagg’s review report was admitted into
evidence. Clagg was cross-examined by J.E.’s counsel and counsel for DCS.
Her testimony revealed the following. Child had sustained a black eye on two
separate occasions resulting from accidents while he was in Father’s care.
Child went to the emergency room for one of these incidents, and he made a
second visit to the emergency room when he contracted pneumonia. Father did
not take Child to the hospital on either occasion. After Child visited the
emergency room for pneumonia, Father took Child to work with him despite
the recommendation that Child go home and rest. Father missed follow-up
appointments for the emergency room visits, and J.E. had taken the lead on
ensuring that Child had his prescription medication and attended doctor’s
appointments. J.E. had also taken Child to the dentist because she was
concerned that Father would not address Child’s dental issues. Father did not
attend the dental appointments.
Court of Appeals of Indiana | Memorandum Decision 18A-JC-156 | July 31, 2018 Page 5 of 25 [8] At the close of Clagg’s testimony, the juvenile court noted that it was short on
time and requested that counsel for J.E. and Father summarize what their
evidence would be. J.E.’s counsel objected to this procedure, and the juvenile
court noted counsel’s continuing objection. J.E.’s counsel represented that
J.E.’s proposed evidence would show that
There have been several issues that have occurred while the child’s been in Father’s care. We believe the December 20th– I wrote it down here – ER visit when Father didn’t take the child to the hospital, following that ER visit there were some issues with the prescriptions and the child did not receive the prescriptions that he was supposed to receive. When the child was returned Mother and Grandmother had to get the child back on the prescriptions as the – as the doctor ordered. There was no follow up scheduled even despite the doctor’s order that a follow up visit be scheduled. Father failed to show up to any of the dental appointments. Father failed to schedule any of the follow ups with dental care. There was a second ER visit where the child was diagnosed with pneumonia in February. Again, Mother and Grandmother took the child to the ER, received prescriptions and a diagnosis of – of pneumonia and a request for a follow up visit. The child was not supposed to stay at home and be rested, not go to school. The very next day from the ER visit Father picked child up, took child – based on what my client was told from Father – finished up his work day, went home with the child, did not provide the child with the prescriptions until he was asked to do so by DCS. No follow up visit on that ER visit was schedule [sic] by Father either. We’ve also had some issues with schooling. The child’s come home with behavior charts that have to be signed and initialed and more than a month’s worth weren’t signed or initialed by Father. Mother and Grandmother had to get that (inaudible) and get it signed. There was also a family project with school that had – Father had two months to complete and it didn’t get completed. Mother had to go to the
Court of Appeals of Indiana | Memorandum Decision 18A-JC-156 | July 31, 2018 Page 6 of 25 school and get the prop, get the assignment and get it completed before school. These are all incidents Father has been warned about or – or asked to change his behavior on by Mother and by Grandmother. Grandmother, [], is here to testify on Mother’s behalf and to verified [sic] the allegations we’ve made in the summary. [Grandfather], the father of [J.E.], is also here to testify in her regard.
Transcript, Volume II at 108-09. The juvenile court recommended that the
parties work together to ensure Child’s well-being. The juvenile court took
Father’s modification request under advisement and set the case for a
Permanency Hearing on September 6, 2017.
[9] By May of 2017, J.E. had made substantial progress in her case plan by
completing her substance abuse treatment. DCS reported that her reunification
risk level was low, and the juvenile court approved a trial home visit for Child
in J.E.’s home. Under this arrangement, Child would reside principally with
J.E., with Father exercising parenting time. DCS worked with J.E. and Father
to establish a parenting time schedule, but J.E. and Father were unable to reach
an agreement.
[10] After the trial home visit began, Father believed that J.E. was restricting his
parenting time. On June 5, 2017, Father filed an emergency motion to modify
custody seeking to exercise equal parenting time of Child with J.E. A DCS
progress report filed the same day indicated that Child did well on the trial
home visit with J.E. The report noted that both parents were compliant with
their services, J.E. was sober, and Father was a “great provider. He
Court of Appeals of Indiana | Memorandum Decision 18A-JC-156 | July 31, 2018 Page 7 of 25 demonstrates this by consistently having stable employment to meeting [sic]
[Child’s] needs. Father is a loving Father. He demonstrates this by fighting
hard to be able to maintain in [Child’s] life.” Appellant’s App., Vol. II at 107.
DCS recommended that Father speak with a therapist to help him connect with
Child and that Father have home-based therapy to help him with his feelings of
disconnection to Child. J.E. was admonished that she should not interfere with
Father’s parenting time. On June 23, 2017, DCS reported that J.E. had tested
positive for methamphetamine. J.E. was directed to increase her contacts with
her outpatient treatment providers to three times a week due to the positive
drug screen.
[11] On June 28, 2017, the juvenile court held a hearing on Father’s motions for
custody. The trial court indicated that it wished to hear evidence only as to
events that had occurred since the date of the last hearing, March 15, 2017.
Case Manager Clagg’s report was admitted into evidence. She testified at the
hearing that two unsubstantiated reports had been made on Father to Child
Protective Services. As a follow up to these reports, Clagg had interviewed
Child, who she felt had been coached to say that he did not wish to spend time
with Father. Father was compliant with all of his services. J.E. had missed two
group substance abuse treatment sessions and screens, claiming she had not
been informed they were required when, in fact, she had been so informed.
Clagg noted that Child had come out of his shell during the trial home visit with
J.E., and Clagg did not feel that there was any reason for either Father or J.E.
Court of Appeals of Indiana | Memorandum Decision 18A-JC-156 | July 31, 2018 Page 8 of 25 to exercise more parenting time than the other. J.E. and Father both presented
testimony at the hearing.
[12] On July 1, 2017, the juvenile court entered an order which directed Father and
J.E. to exercise equal parenting time but did not alter Child’s custody. On
August 25, 2017, DCS moved the juvenile court for a permanency hearing and
determination of custody. A permanency report revealed that J.E. had
completed her substance abuse services and had been successfully discharged
from home-based therapy. Father had completed his father engagement
services and home-based therapy. Both parents had attended the August 15,
2017, Team Meeting. DCS, J.E., and Father were all in agreement that the
CHINS case could be closed.
[13] A permanency hearing and custody determination hearing was held on
September 6, 2017, at which DCS reported that Child was thriving under the
equal parenting time arrangement. DCS had no safety concerns with either
parent. DCS recommended that the juvenile court enter an order on custody
that allowed for each parent to exercise equal parenting time. J.E. testified at
the hearing and objected to joint custody of Child based upon her belief that
Child spent too much time commuting to and from school in Hancock County
while he was at Father’s home in Marion County. Child, who was not then
enrolled in school, did not have any absences or tardies from school when he
did attend. Father planned to move to Hancock County and requested equal
parenting time with J.E.
Court of Appeals of Indiana | Memorandum Decision 18A-JC-156 | July 31, 2018 Page 9 of 25 [14] In its September 22, 2017, Order on Permanency and Determination of
Custody, the juvenile court found that parents had substantially complied with
its provisional order and that Child had thrived under both parents’ care. The
trial court found that “[Child] needs both of his parents, and the parenting time
arrangement provides the best opportunity for both parents to be a significant
support in [Child’s] life.” Appellant’s App., Vol. II at 141. The juvenile court
found as follows:
14. There has been a change of circumstances so substantial and continuing as to make the terms of the aforesaid custody, parenting time and support orders unreasonable.
15. There has been a substantial change in one or more of the factors which the Court may consider under Indiana Code § 31- 17-2-8 for purposes of modifying custody.
16. That the best interests of [Child] is substantially and significantly served by modifying the custody, parenting time, and support orders entered by the [paternity court] and granting [J.E.] and [F]ather joint physical and legal custody of child.
Appellant’s App., Vol. II at 142. The juvenile court entered a child support
order which did not address any arrearage owed by Father under the previous
support order entered by the paternity court. The juvenile court further found
that the conditions necessitating the CHINS case had been resolved and
dismissed the CHINS case.
[15] Both parties subsequently filed motions pertaining to the juvenile court’s child
support order. In her October 6, 2017, Motion to Correct Error, J.E. alleged
that the juvenile court should have included in its September 22, 2017, child Court of Appeals of Indiana | Memorandum Decision 18A-JC-156 | July 31, 2018 Page 10 of 25 support order the child support arrearage owed by Father, which she alleged to
be $8,694.00. Appellant’s App., Vol. II at 150. After a December 20, 2017,
hearing on both parties’ motions, the juvenile court declined to alter its
September 22, 2017, child support order and deferred any further litigation of
child support issues to the paternity court. J.E. now appeals the juvenile court’s
custody determination and its child support order. 1
Discussion and Decision I. Custody Determination A. Standard of Review [16] J.E. first challenges the evidence supporting the juvenile court’s determination
that a substantial change in circumstances justifying a custody modification had
occurred. “A trial court’s custody determination is afforded considerable
deference on appeal as it is the trial court that sees the parties, observes their
conduct and demeanor, and hears their testimony.” Robertson v. Robertson, 60
N.E.3d 1085, 1090-91 (Ind. Ct. App. 2016). On review, we do not reweigh the
evidence, rejudge the credibility of witnesses, or substitute our judgment for that
of the trial court. Id. Reversal of the trial court’s custody determination is
1 Although DCS was a party in the proceedings below, it filed a Notice of Intent Not to File Brief of Appellee and does not participate in this appeal.
Court of Appeals of Indiana | Memorandum Decision 18A-JC-156 | July 31, 2018 Page 11 of 25 merited only if it is clearly against the logic and effect of the facts and
circumstances or the reasonable inferences drawn therefrom. Id.
B. Sufficiency of the Evidence [17] Indiana Code section 31-17-2-21(a) provides that the trial court may modify a
child custody order when: “(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.”2 The trial court is required to consider the factors of section 8, which
include the relationship the child has with his or her parents, siblings, and
others, the child’s adjustment to home, school, and community, and the mental
and physical health of all involved. Ind. Code § 31-17-2-8(1)-(8).
[18] Here, Father, J.E., and Child lived together until Child was approximately
eighteen months old. Thereafter, J.E. was originally granted primary physical
custody of Child in the paternity case. Father continued to have contact with
Child, although on a much less frequent basis. On September 23, 2016, J.E.
was arrested for drug possession and charged with neglect of a dependent,
resulting in Child being removed from her care, a CHINS case being opened,
and Child’s eventual placement with Father.
2 The juvenile court cited the custody modification statute applicable to dissolution proceedings rather than Indiana Code section 31-14-13-2 which applies to custody modifications within paternity proceedings. The statutes are substantially the same. For consistency’s sake, we cite the statute cited by the juvenile court.
Court of Appeals of Indiana | Memorandum Decision 18A-JC-156 | July 31, 2018 Page 12 of 25 [19] During the pendency of the CHINS case, Child thrived during his placement in
Father’s care. Father had significant parenting time with Child and was able to
form a strong bond with Child. Father addressed deficiencies in his parenting
and his connection with Child through the father engagement services and
home-based therapy provided him in the CHINS case. Child continued to
thrive after the juvenile court entered its July 1, 2017, order directing Father
and J.E. to exercise equal parenting time. By the time of the permanency and
custody hearing on September 6, 2017, DCS recommended that the juvenile
court enter a permanent order granting joint custody of Child to the parties. In
light of this evidence, the juvenile court reasonably concluded that it was in
Child’s best interests that J.E. and Father exercise joint custody because a
substantial and positive change in Child’s relationship with Father had occurred
through Father’s increased involvement in Child’s life and through Child’s
inclusion in Father’s home.
[20] J.E. argues that the juvenile court abused its discretion when modifying custody
because it did not specify which statutory factors it found had substantially
changed that merited a modification of custody. See Brief of Appellant at 13-14.
However, we agree with Father that the juvenile court was not required to
make any such findings. See Appellee’s Brief at 10. When neither party
requests special findings of fact and conclusions of law, the trial court is not
required to make special findings regarding which of the factors listed in
Indiana Code section 31-17-2-8 it relied upon in modifying custody. Kanach v.
Rogers, 742 N.E.2d 987, 989 (Ind. Ct. App. 2001). All that is required is that the
Court of Appeals of Indiana | Memorandum Decision 18A-JC-156 | July 31, 2018 Page 13 of 25 trial court consider the statutory factors before concluding that a substantial
change has occurred. Id. Here, neither party requested special findings of fact,
and the juvenile court’s order included a general finding that a substantial
change in one or more of the statutory factors had occurred. Appellant’s App.,
Vol. II at 142.
[21] J.E. also draws our attention to what she considers to be deficiencies in Father’s
parenting as well as to her own positive qualities as a mother. These arguments
are unpersuasive given that, pursuant to our standard of review, we do not
reweigh the evidence or substitute our own judgment for the juvenile court’s.
See Robertson, 60 N.E.3d at 1090. Lastly, we find no support in the record for
J.E.’s contention that the trial court impermissibly punished her for interfering
with Father’s parenting time by modifying custody in this matter. See Br. of
Appellant at 14. Finding that the juvenile court did not abuse its discretion and
that its custody modification determination was supported by the evidence, we
affirm.
II. Summary Proceeding [22] J.E. next contends that the trial court erred when it directed the parties to
present a summary of their evidence through counsel at the March 15, 2017,
CHINS and custody hearing in lieu of additional live testimony of witnesses.
A. Standard of Review [23] J.E. does not favor us with a standard of review in this section of her argument.
Br. of Appellant at 15-17. However, we note that, as a general matter, the
Court of Appeals of Indiana | Memorandum Decision 18A-JC-156 | July 31, 2018 Page 14 of 25 admission or exclusion of evidence is within the sound discretion of the trial
court, and we will reverse a trial court’s evidentiary ruling only upon an abuse
of that discretion. In re Des.B., 2 N.E.3d 828, 834 (Ind. Ct. App. 2014).
B. Preliminary Considerations [24] As a preliminary matter, we disagree with Father that J.E. failed to preserve this
issue for appeal by neglecting to make an offer to prove. See Appellee’s Br. at
12-13. An offer to prove is necessary to preserve for appeal the issue of whether
a trial court improperly excluded evidence. Duso v. State, 866 N.E.2d 321, 324
(Ind. Ct. App. 2007). An adequate offer to prove usually consists of an offer of
the substance of the evidence, an explanation of its relevance, and the proposed
grounds for admissibility. Id. Here, J.E.’s summary of her proposed evidence
operated as a functional offer to prove that was adequate to preserve the issue
for appeal since it was made in response to the juvenile court’s request and not
to any evidentiary objection on J.E.’s part. Tr., Vol. II at 107-09. However,
J.E. did not mention any proposed documentary evidence in her summary, and
so we do not address her contention that the juvenile court erred when it
disallowed her “documented evidence.” See Br. of Appellant at 15.
[25] In addition, contrary to Father’s contention on appeal, see Appellee’s Br. at 8,
J.E. has timely appealed this issue. J.E. filed a motion to correct error on
October 6, 2017. The juvenile court issued its ruling on that motion at a
hearing conducted on December 20, 2017. Tr., Vol. II at 200-01. J.E. had
thirty days within which to file her appeal of the juvenile court’s final order.
Court of Appeals of Indiana | Memorandum Decision 18A-JC-156 | July 31, 2018 Page 15 of 25 Ind. Appellate Rule 9(A)(1). J.E. filed her Notice of Appeal on January 19,
2018, which was within the thirty-day timeframe. Docket, No. 18A-JC-156.
C. Exclusion of J.E.’s Evidence [26] We have long recognized that child custody proceedings implicate the
fundamental relationship between parent and child, necessitating that
procedural due process be provided to protect the substantive rights of the
parties. Brown v. Brown, 463 N.E.2d 310, 313 (Ind. Ct. App. 1984). “An
opportunity to be heard is essential before a parent can be deprived of custody.”
Id. In furtherance of this goal, the Indiana custody modification statute
contemplates a hearing prior to modification. See Ind. Code § 31-17-2-6
(“Custody proceedings must receive priority in being set for hearing”).
[27] Our supreme court recently addressed the use of summary proceedings in the
family law context. In Wilson v. Myers, 997 N.E.2d 338 (Ind. 2013), the court
found that the trial court had committed reversible error by conducting a
summary custody modification hearing without the appropriate procedural
safeguards. Id. at 341. In that case, the trial court did not swear in any
witnesses, no documentary evidence was introduced, and no courtroom
formalities were observed. Id. The hearing amounted to little more than an
“unorganized shouting match.” Id. at 342. Furthermore, in its order modifying
custody, the trial court failed to mention whether modification was in the best
interest of the children involved or that a substantial change in any of the
necessary statutory factors had occurred. Id. at 341. The court concluded that
Court of Appeals of Indiana | Memorandum Decision 18A-JC-156 | July 31, 2018 Page 16 of 25 reversal was required because it could not infer from the record that the trial
court had contemplated those matters because nothing in the transcript of
proceedings allowed such an inference. Id.
[28] In Bogner v. Bogner, 29 N.E.3d 733 (Ind. 2015), cited by both parties on appeal,
the use of summary proceedings in a child support matter was at issue. Father
and Mother were both present at the support hearing, and each was represented
by counsel. Id. at 739. Father assented when the trial court inquired if the
parties were proceeding in a summary fashion, and he did not offer any
procedural objections during the hearing. Id. The court found the use of a
summary proceeding to be appropriate because the parties had stipulated to it
and because they did not contest most of the relevant facts necessary for the
trial court to make its determination. Id. at 739-40.
[29] In light of this authority, we conclude that the trial court abused its discretion
when it proceeded in a summary fashion at the March 15 hearing. Unlike the
litigants in Bogner, J.E. did object to proceeding in a summary fashion, and the
juvenile court noted her continuing objection. Given the importance of the
fundamental interests at stake in a child custody hearing, the trial court erred
when it disallowed J.E.’s evidence at the March 15 hearing over her counsel’s
objection.
[30] However, any error in a trial court’s use of a summary proceeding will not
require reversal absent a showing of prejudice. Neese v. Kelley, 705 N.E.2d 1047,
1050 (Ind. Ct. App. 1999). Here, we cannot conclude that J.E. was prejudiced
Court of Appeals of Indiana | Memorandum Decision 18A-JC-156 | July 31, 2018 Page 17 of 25 when the trial court excluded her witnesses and directed the parties to
summarize their evidence. The matters set forth in J.E.’s offer to prove
concerning Child’s ER visits and their aftermath, his dental issues, and matters
pertaining to his schooling were not seriously contested by Father. Indeed, our
review of the record did not uncover any direct denial by Father regarding the
matters set forth in J.E.’s offer to prove at the March 15 hearing or at the
subsequent custody hearings held on June 28 and September 6, 2017, prior to
the juvenile court rendering its final custody determination.
[31] Although J.E. claims that she was prejudiced because the juvenile court limited
the scope of the subsequent June 28, 2017, hearing, see Br. of Appellant at 17,
no such limit was placed upon the September 6, 2017, hearing. In addition,
much of the information concerning Child’s visits to the ER and their aftermath
came into evidence during the March 15 hearing through the testimony and
cross-examination of Clagg, and thus any further testimony on those matters
would have been cumulative. See In re C.G., 933 N.E.2d 494, 507 (Ind. Ct.
App. 2010), aff’d on trans., 954 N.E.2d 910 (holding that the exclusion of
evidence was harmless where it would have merely been cumulative of other
evidence presented).
[32] Furthermore, the March 15 hearing was not a free-for-all bereft of procedural
safeguards or the admission of any substantive evidence. The hearing was
conducted in an orderly fashion, Clagg’s report was admitted into evidence, and
Clagg testified and was cross-examined by J.E.’s counsel. In addition, unlike
the custody order at issue in Wilson, the juvenile court in this case made the
Court of Appeals of Indiana | Memorandum Decision 18A-JC-156 | July 31, 2018 Page 18 of 25 statutorily required findings and, as set forth above, those findings were
supported by other evidence in the record on appeal. Thus, we find that any
error committed by the juvenile court in conducting the March 15 hearing to be
harmless.
III. Forum of Custody Determination [33] J.E. also contends that the juvenile court erred when it modified custody within
the ongoing CHINS case because modification was not necessary for the
resolution of the CHINS case. Rather, J.E. asserts that the paternity court was
the better court to determine custody.
A. Waiver [34] J.E. neglects to cite a standard of review for her argument on this issue. Br. of
Appellant at 17-20. As we discuss in further detail below, because the paternity
court and the juvenile court had concurrent jurisdiction over the custody issues
in this case, we find that this matter is properly framed as whether the juvenile
court was the proper venue for the custody determination. See Cabanaw v.
Cabanaw, 648 N.E.2d 694, 697 (Ind. Ct. App. 1995) (“Jurisdiction involves a
court’s power to hear a particular group of cases; venue connotes the proper
situs for the trial of an action”). The question of whether a matter is litigated in
the proper venue must be raised by a preliminary motion or by affirmative
defense. Ind. Trial Rules 12(B)(3); 75(A). If a party challenging venue does not
raise the issue by filing a motion or by raising it as an affirmative defense, the
issue is waived. See Ind. Trial Rule 12(H)(1).
Court of Appeals of Indiana | Memorandum Decision 18A-JC-156 | July 31, 2018 Page 19 of 25 [35] Inasmuch as J.E. attempts to challenge the venue of the custody determination
in this case, we hold that she has waived the issue. J.E. did not challenge the
propriety of the juvenile court to hear issues relating to Child’s custody either by
filing a motion in response to Father’s petition for custody in the CHINS case
or by raising the issue as an affirmative defense in a subsequent pleading. As
such, she has waived the issue for our review. Id.
B. The Juvenile Court Appropriately Modified Custody [36] However, even if J.E. had properly preserved her claim for appeal, we find that
the issue of custody was properly before the juvenile court. The paternity court
and the juvenile court had concurrent jurisdiction over custody issues, venue
properly rested in the juvenile court, and it was in the best interests of Child to
have the determination made by the juvenile court.
[37] Indiana Code section 31-30-1-13 provides in relevant part as follows:
(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 . . . .
Thus, a juvenile court exercising jurisdiction in a CHINS proceeding also has
jurisdiction to entertain custody matters, even if a paternity court previously
had jurisdiction over those matters.
Court of Appeals of Indiana | Memorandum Decision 18A-JC-156 | July 31, 2018 Page 20 of 25 [38] Here, paternity was established in the paternity court in May of 2015.
Therefore, the paternity court had original jurisdiction over paternity and
custody matters. The CHINS proceeding was then initiated in September of
2016 in the juvenile court, which then acquired concurrent jurisdiction over the
issue of custody. Ind. Code § 31-30-1-13 (a)(1). On October 13, 2016, the
paternity court stayed the custody proceedings being litigated in that court
pending resolution of those matters in the juvenile court. Venue of the custody
matters properly rested in the juvenile court in Hancock County, as both J.E.
and Child resided there at the time of the filing of Father’s custody motion. See
Ind. Trial Rule 75(A)(1) (providing that preferred venue for a matter rests where
any defendant resides).
[39] The juvenile court maintained jurisdiction over the CHINS and custody issues
from September of 2016, until September 22, 2017, when it determined custody
and closed the CHINS case. During that period, the juvenile court received
numerous reports from DCS detailing Child’s status and the status of both
parents as they undertook services through the CHINS proceedings. The
juvenile court also held several hearings for review of the CHINS matters.
Between the two courts having concurrent jurisdiction over custody issues, the
juvenile court was the better court to entertain the issue of custody having heard
evidence generated in the CHINS proceedings that was directly relevant to a
custody determination, such as J.E.’s progress in addressing her substance
abuse issues, Father’s progress in developing his parenting skills, and Child’s
status while in the care of both parents. It was in the best interests of Child and
Court of Appeals of Indiana | Memorandum Decision 18A-JC-156 | July 31, 2018 Page 21 of 25 of judicial economy for the juvenile court to have made the custody
determination rather than delaying justice by deferring to the paternity court to
relitigate many of the same issues addressed in the CHINS case.
[40] Nevertheless, J.E. argues that the paternity court should have determined
custody because the juvenile court had “limited time and resources to address
the issues of custody once reunification was complete.” See Br. of Appellant at
18-19. J.E. does not support this argument with citation to the record, and we
find none. Concluding that the juvenile court was the appropriate forum for
addressing the custody issue in this matter, we will not disturb its custody
determination.
IV. Child Support Order [41] J.E. further argues that the juvenile court erred when it deferred to the paternity
court any further litigation of the issue of child support arrearages owed by
Father pursuant to the May 2015 child support order. Since this issue was the
subject of J.E.’s Motion to Correct Error, we frame the argument on appeal as
whether the juvenile court erred when it denied her Motion to Correct Error.
A. Waiver [42] We begin by noting that J.E. failed to request that the juvenile court consider
child support arrears in issuing its support order, raising the issue for the first
time in her Motion to Correct Error. Issues raised for the first time in a motion
to correct error are waived. See Troxel v. Troxel, 737 N.E.2d 745, 752 (Ind.
2000). Because J.E. never raised this issue to the juvenile court until she filed
Court of Appeals of Indiana | Memorandum Decision 18A-JC-156 | July 31, 2018 Page 22 of 25 her Motion to Correct Error on October 6, 2017, we find that she has waived
this issue for appeal.
B. Motion to Correct Error [43] Even if J.E. had not waived her claim, we note that the juvenile court properly
denied J.E.’s Motion to Correct Error seeking an order addressing Father’s
alleged support arrears. We review a trial court’s ruling on relief from judgment
for an abuse of discretion. In re Adoption of C.B.M., 992 N.E.2d 687, 691 (Ind.
2013). Here, we find no such abuse of discretion. The juvenile court had no
obligation to address the issue of support arrearages sua sponte. See Ind. Code §
31-16-12-3(b) (providing that a trial court may issue an order on arrearages
“upon request of a person or an agency entitled to receive child support
payments”) (emphasis added).
[44] Furthermore, the juvenile court could not have properly granted the relief J.E.
sought in her Motion to Correct Error. Indiana Code section 31-30-1-13
provides as follows:
(c) If, under this section, a juvenile court:
(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 Court of Appeals of Indiana | Memorandum Decision 18A-JC-156 | July 31, 2018 Page 23 of 25 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.
[45] Id. at (c)-(d). Thus, the applicable statues contemplate that, once a juvenile
court closes a CHINS case, its jurisdiction to entertain child support matters
reverts to the court of original jurisdiction. Here, after the juvenile court
entered its child support order and closed the CHINS proceeding, its authority
to determine child support issues reverted to the paternity court which, in any
event, had issued the order upon which any arrearage calculation would be
based. It cannot be said that the juvenile court abused its discretion in failing to
grant relief on a matter over which it no longer had jurisdiction. Therefore, we
find no error in the juvenile court’s denial of J.E.’s Motion to Correct Error,
and we affirm its child support order.
Conclusion [46] Concluding that the juvenile court did not abuse its discretion in reaching its
custody determination which was supported by the evidence, that any error in
the juvenile court’s exclusion of J.E.’s evidence was harmless, that the juvenile
Court of Appeals of Indiana | Memorandum Decision 18A-JC-156 | July 31, 2018 Page 24 of 25 court was an appropriate forum to modify custody, and that it did not abuse its
discretion in denying J.E.’s Motion to Correct Error, we affirm.
[47] Affirmed.
Najam, J., and Altice, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-JC-156 | July 31, 2018 Page 25 of 25