In Re: The Paternity of A.R. (Minor Child) A.R. (Minor Child) by Next Friend, C.T., III v. J.R. (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: October 12, 2016
• Docket: 41A04-1409-JP-436
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this FILED Memorandum Decision shall not be regarded as Oct 12 2016, 9:26 am precedent or cited before any court except for the CLERK purpose of establishing the defense of res judicata, Indiana Supreme Court Court of Appeals collateral estoppel, or the law of the case. and Tax Court

ATTORNEYS FOR APPELLANT Bryan L. Ciyou Darlene R. Seymour Ciyou & Dixon, PC Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In Re: The Paternity of A.R. October 12, 2016 (Minor Child) Court of Appeals Cause No. A.R. (Minor Child) by Next Friend, 41A04-1409-JP-436 C.T., III, Appeal from the Johnson Appellant-Petitioner, Superior Court The Honorable Terry K. v. Snow, Special Judge

J.R., Cause No. 41D02-1312-JP- 222 Appellee-Respondent.

Riley, Judge.

Court of Appeals of Indiana | Memorandum Opinion 41A04-1409-JP-436 | October 12, 2016 Page 1 of 13 STATEMENT OF THE CASE

[1] Appellant-Petitioner, Conrad Terhune (Father), appeals the trial court’s Order,

denying his petition to modify child custody of his minor daughter, A.R.T. (the

Child).

[2] We affirm.

ISSUE

[3] Father raises two issues on appeal, which we restate as: Whether the trial court

abused its discretion by denying Father’s petition to modify child custody.

FACTS AND PROCEDURAL HISTORY

[4] On January 8, 2008, Jessica Rees (Mother) gave birth to the Child. At the time

the Child was born, paternity had not been established. Mother also has two

daughters with two different fathers, A.R.D. born on September 13, 2000, and

L.R.S., born on March 8, 2002. On April 3, 2008, Mother filed a petition to

establish paternity. Father’s paternity of the Child was conclusively established

on July 8, 2008. On July 31, 2008, Father filed a motion for a custody

evaluation referral, and the trial court referred the parties to Youth Connections

in Johnson County on August 11, 2008. An Agreed Paternity was filed on

November 19, 2008, in which the parties agreed to share joint legal custody of

the Child, with Mother having primary physical custody. Parenting time was

awarded to Father according to the Indiana Parenting Time Guidelines

(Guidelines). In addition, the parties agreed that the Child’s birth certificate

would be amended to reflect Father’s last name. Court of Appeals of Indiana | Memorandum Opinion 41A04-1409-JP-436 | October 12, 2016 Page 2 of 13 [5] Even with the existence of a mutual custody agreement, Mother consistently

refused to allow Father to exercise regular overnight parenting time, and she

would not adhere to the holiday parenting time schedule as ordered. In

January of 2009, the parties submitted a Stipulation and Order Appointing

Parenting Time Coordinator which was approved on January 29, 2009. With

the help of a Parenting Coordinator (PC) from Youth Connections, the parties

were to work on issues regarding parenting time. For the most part, Mother

was very uncooperative. In a report dated September 29, 2009, the PC reported

that a meeting had been scheduled for September 10, 2009, and adequate

notices had been given to the parties; however, Mother failed to attend. In

another report, the PC indicated that Mother had exhibited signs of being

irrational in discussions, and the PC recommended counseling for Mother. The

PC further stated that Mother had hung up on her phone calls several times,

became verbally abusive when she was asked to follow the parenting time

schedule, and at one time refused to leave the PC’s office when she was asked

to leave.

[6] On July 30, 2009, Father filed a petition for modification of child custody based

on Mother’s actions denying him parenting time. The parties participated in

mediation, and on August 7, 2009, the trial court approved the parties’

Mediated Agreement. This agreement specified, in part, that Father’s weekend

parenting time to commence Friday evening until Monday at noon on

alternating weekends, and his mid-week parenting time to run from Wednesday

evening until Thursday at noon.

Court of Appeals of Indiana | Memorandum Opinion 41A04-1409-JP-436 | October 12, 2016 Page 3 of 13 [7] Relevant to this appeal, on September 11, 2012, Father filed a second petition

to modify custody. Father alleged, in part, that he had “grave concerns that . . .

the [C]hild had been exposed to inappropriate behaviors” by members of

Mother’s household; and Mother was dating multiple men and her involvement

with these men “confuses the [C]hild.” (Appellant’s App. p. 63). On March 8,

2013, Father requested a final hearing on the pending issues, and then on April

3, 2013, he requested the appointment of a Guardian Ad Litem (GAL). On April

15, 2013, the trial court appointed a GAL.

[8] On April 27, 2013, the Child was at Father’s home. Father resided with his

teenage daughter, M.T., born from a previous relationship; his girlfriend,

Shellie Hichert (Hichert); and Hichert’s teenage children from a past

relationship—daughter, M.S., and son, C.S. On that day, the GAL made an

unannounced visit to Father’s home and interviewed the Child as well as M.T.

and M.S. Thereafter, on April 29, 2013, the GAL visited Mother’s home to

interview Mother. Mother subsequently filed a petition to remove the GAL. In

her petition, Mother alleged that the GAL appeared intent on questioning her

oldest daughter, A.R.D., about a report of unsubstantiated sexual abuse

involving the Child. Specifically, there had been an allegation in February 2012

stating that A.R.D. had touched the Child’s private area. The GAL responded

by filing a motion to strike portions of Mother’s petition. On July 22, 2013,

four months after Mother’s petition to remove the GAL, Mother filed a motion

to withdraw and thereafter, the GAL visited Mother’s home to interview the

Court of Appeals of Indiana | Memorandum Opinion 41A04-1409-JP-436 | October 12, 2016 Page 4 of 13 Child, A.R.D., and Mother’s other daughter, L.R.S. Mother closely monitored

the interview, and according to the GAL, it seemed coached.

[9] On August 9, 2013, Mother wrote an email to the GAL inviting her to speak

with the Child. According to Mother, the Child had something she wanted to

share with the GAL. On Sunday, August 18, 2013, the GAL visited Mother’s

home unannounced. The GAL tried to talk to the Child while on a walk, but

the Child walked very fast. Throughout the interview, the Child did not

disclose anything to the GAL and appeared to have no idea why the GAL was

meeting with her, and spent her time drawing. In October of 2013, the GAL

asked Mother what the Child wanted to share, and Mother informed the GAL

that the Child had alleged that Hichert, Father’s live-in girlfriend, had hit her in

anger and Father had called the Child a liar. The GAL also visited Father’s

home in that same month to interview the Child. The Child spoke minimally

and spent most of the time drawing with markers.

[10] Although there had been unsubstantiated allegation of sexual abuse involving

A.R.D. touching the Child’s private area, Father remained concerned because

the Child displayed inappropriate behavior. Specifically, in September of 2012,

when Father picked up the Child from daycare, he found the Child with

“another little boy in the bathroom and everyone was kind of checking each

other out.” (Tr. p. 98). More than a year after the sexual abuse allegation

relating to A.R.D., in or about October of 2013, Mother made a report to DCS

that Hichert’s teenage son, C.S., touched the Child’s private area. That

allegation was later found to be unsubstantiated.

Court of Appeals of Indiana | Memorandum Opinion 41A04-1409-JP-436 | October 12, 2016 Page 5 of 13 [11] Father states that Mother had exposed the Child to numerous men. First,

Father states that Michael Childers (Childers), Mother’s current fiancé, has a

criminal record—i.e., a burglary conviction in 2008. In addition, Mother failed

to disclose to the GAL her relationship with Childers or that he was living in

her home. Mother’s relationship with Childers had been on and off since 2008.

Somewhere between 2008 and 2012, Mother became romantically involved

with Gregg Smith (Smith), and there was a claim that Mother dated another

man, Josh Hosman (Hosman), but the record shows that Hosman was Mother’s

friend.

[12] On November 12, 2013, the GAL filed her twenty-nine-page report with the

trial court. A bifurcated evidentiary hearing for Father’s petition to modify the

existing custody arrangement was held on March 11, 2014, and April 14, 2014.

At the hearing, Mother, GAL, Mother’s father, Father, and Hichert, testified.

The GAL advised for the modification of custody based on her findings, and

further opined that Father was a better parent. Mother indicated that she

wished to maintain the status quo. At the close of the hearing, the trial court

concluded that there was no substantial change in the circumstances to warrant

modification of custody.

[13] Father now appeals. Additional facts will be provided as necessary.

Court of Appeals of Indiana | Memorandum Opinion 41A04-1409-JP-436 | October 12, 2016 Page 6 of 13 DISCUSSION AND DECISION

I. Standard of Review

[14] Father argues that the trial court abused its discretion in refusing to modify

custody. The trial court entered a number of orders at the conclusion of the

hearing. These orders do not contain any purported conclusions of law, except

for a single order denying modification of custody. Six other directives related

to the parties’ parenting time, the Child’s insurance, the parties’ obligation to

disclose who resided in their homes, and the parties’ obligation to report in the

event of a relocation.

[15] We note that sua sponte findings control only the issues they cover, and a

general judgment standard of review will control as to the issues upon which

there are no findings. In re Trust Created Under Last Will & Testament of Mitchell,

788 N.E.2d 433, 435 (Ind. Ct. App. 2003). “A general judgment entered with

findings will be affirmed if it can be sustained on any legal theory supported by

the evidence.” Id. In reviewing a judgment, we will neither reweigh the

evidence nor judge the credibility of the witnesses. Id

[16] We grant latitude and deference to trial courts in family matters. Heagy v. Kean,

864 N.E.2d 383, 388 (Ind. Ct. App. 2007), trans. denied. “Therefore, custody

modifications are left to the sound discretion of the trial court, and we may

reverse only for an abuse of that discretion.” Id. “[I]t 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.”

Court of Appeals of Indiana | Memorandum Opinion 41A04-1409-JP-436 | October 12, 2016 Page 7 of 13 Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002) (quoting Brickley v. Brickley, 247

Ind. 201, 210 N.E.2d 850 (1965)).

II. Modification of Custody

[17] As a preliminary matter, we note that Mother did not file an appellee’s brief.

When an appellee does not submit a brief, we do not undertake the burden of

developing arguments for that party. Thurman v. Thurman, 777 N.E.2d 41, 42

(Ind. Ct. App. 2002). Instead, we apply a less stringent standard of review and

may reverse if the appellant establishes prima facie error. Id. Prima facie error is

“error at first sight, on first appearance, or on the face of it.” Van Wieren v. Van

Wieren, 858 N.E.2d 216, 221 (Ind. Ct. App. 2006).

[18] In Indiana, following establishment of paternity, “[t]he [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 2. . . .” Ind. Code § 31-14-13-

6. Indiana Code section 31-14-13-2, in turn, sets forth the following factors: 1

1 Father cited to the statutory provisions for modification of custody in a dissolution action, Indiana Code section 31-17-2-21, rather than the statutory provisions for modification of custody in a paternity action, Indiana Code section 31-14-13-6. Although Father cites the incorrect article, his argument is unaffected as the legal standards included in Article 14 of Title 31 are, in pertinent part, identical to those in Article 17.

Court of Appeals of Indiana | Memorandum Opinion 41A04-1409-JP-436 | October 12, 2016 Page 8 of 13 (1) The age and sex of the child.

(2) The wishes of the child’s parent or 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 parent or parents;

(B) the child’s sibling; and

(C) any other person who may significantly affect the child’s best interests.

(5) The child’s adjustment to the child’s:

(A) home;

(B) school; and

(C) 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 . . .

I.C. § 31-14-13-2.

[19] At the close of the evidentiary hearing, the trial court concluded that “[F]ather

has failed to show sufficient evidence to make it unreasonable to continue the

custody arrangement that the parties agreed to previously. And that there is

nothing to show that it’s not in the best interest[,] or that it would be in the best

interest of the child to change it.” (Tr. p. 74). We note that in the trial court’s

Court of Appeals of Indiana | Memorandum Opinion 41A04-1409-JP-436 | October 12, 2016 Page 9 of 13 order denying Father modification of custody, the trial court did not expressly

indicate which of the above factors it considered when it determined that a

change in custody would not be in the Child’s best interest.

[20] Because Father filed the petition to modify child custody, he carries the burden

of establishing circumstances so substantial and continuous as to make the

terms of the original child custody determination unreasonable. Father first

notes that there was a substantial change in the Child’s mental and physical

health based on the sexual abuse allegations. Although Father concedes that

the sexual abuse claims against A.R.D. and C.S. were found to be

unsubstantiated by DCS, Father claims that the Child endured trauma by

undergoing DCS investigation. Father’s argument fails, since the trial court

appears to have deferred to the DCS’s closure of the sexual abuse assertions

against the Child with the designation that they had been unsubstantiated. 2

2 Father also claims that Mother had anger problems, and he directs us to the PC’s recommendations that Mother should have undergone counseling. We note that the PC’s counseling recommendation was prompted in June 2009 when she noted Mother’s erratic behavior on the times she interacted with Mother regarding parenting time, as well as Mother’s inability to stay rational in those discussions. In his appellate brief, Father now posits that if Mother followed the counseling recommendation, she would be able to “rectify the emotional issues she has, facilitate her children’s best interest, and perhaps even diffuse her anger towards Father.” (Appellant’s Br. p. 12). Although the PC ’s recommendation was approved by the trial court, shortly thereafter, in August 2009, the parties entered into mediation and resolved “all other pending issues in the captioned case.” (Appellant’s App. p. 58).

Court of Appeals of Indiana | Memorandum Opinion 41A04-1409-JP-436 | October 12, 2016 Page 10 of 13 [21] Next, Father claims that Mother had exposed the Child to “a number of men

with criminal backgrounds.” (Appellant’s Br. p. 13). We recognize that a trial

court considers the child’s relationship not only with his or her parents, but also

with “any other person who may significantly affect the child’s best interests.”

See I.C. § 31-17-2-8(4)(C). Looking at the record, we find no evidence to

demonstrate that Mother had exposed the Child to several boyfriends. The only

evidence in the record indicates that Mother had two boyfriends. Mother began

dating Childers in 2008, and her relationship with Childers was on and off.

Mother dated Smith, and then resumed her relationship with Childers. At the

time of the evidentiary hearing, Mother was engaged to Childers. Here, the

record counters Father’s claim that Mother dated numerous men, and despite

Mother’s choice of dating a man with a criminal history, no evidence was

presented that Mother’s relationship or cohabitation with Childers presented

any adverse effect to the Child’s well-being.

[22] In addition, Father argues that his petition to modify custody should have been

granted because Mother exhibited a desire to obtain retribution against him.

Father posits that a change of custody would reduce the “antagonism” between

him and Mother, and he cites, in this regard, Needham v. Needham, 408 N.E.2d

562, 564 (Ind. Ct. App. 1980), holding that the trial court could consider

mother’s antagonism toward father and mother’s attempts to “poison” the

father in the children’s minds. In advancing his claim, Father directs us to

Mother’s report to the police disclosing Hichert’s location which resulted in an

arrest. The record shows that Father and Hichert run a concrete business

Court of Appeals of Indiana | Memorandum Opinion 41A04-1409-JP-436 | October 12, 2016 Page 11 of 13 together, and there was an arrest warrant for Hichert for collection of money in

relation to that business. In October of 2013, Mother informed the police that

Hichert would be dropping off the Child to her at a certain location. The police

detained Hichert at that location. According to Father, Mother was being

vengeful. We find that Mother’s actions, painted by Father as being vindictive,

was an isolated event. This court has held that isolated acts of misconduct by a

custodial parent do not mandate a custody modification. In re Paternity of

M.J.M., 766 N.E.2d 1203, 1209 (Ind. Ct. App. 2002).

[23] Not surprisingly, Father places much emphasis on the GAL’s testimony that, in

her opinion, it would be in the Child’s best interest to be placed in Father’s

custody. That testimony, however, was merely one item of evidence for the

trial court to consider in reviewing all of the pertinent factors for modifying

custody. A trial court is not required to accept opinions of experts regarding

custody. Clark v. Madden, 725 N.E.2d 100, 109 (Ind. Ct. App. 2000).

[24] Frequently, trial courts are required to make difficult decisions in custody

disputes. Father has failed to demonstrate that the Child’s mental health was in

jeopardy based on the unsubstantiated sexual abuse allegation, that Mother’s

boyfriends negatively affected the Child, or that Mother’s conduct of calling the

police on Hichert was so egregious to warrant a custody modification. We find

Father’s arguments are essentially an invitation to reweigh the evidence and

judge the credibility of the witnesses, which we cannot do. In re Trust Created

Under Last Will & Testament of Mitchell, 788 N.E.2d at 435. Based on all of the

evidence before us we cannot say that the trial court abused its discretion by

Court of Appeals of Indiana | Memorandum Opinion 41A04-1409-JP-436 | October 12, 2016 Page 12 of 13 finding that no substantial change occurred in one of the statutory factors or

that modification was not in Child’s best interests. Accordingly, we conclude

that the trial court did not abuse its discretion by denying Father’s petition for

CONCLUSION

[25] Based on the foregoing, we conclude that the trial court did not abuse its

discretion by denying Father’s petition to modify custody.

[26] Affirmed.

[27] Barnes, J. concurs

[28] Bailey, J. concurs in result

Court of Appeals of Indiana | Memorandum Opinion 41A04-1409-JP-436 | October 12, 2016 Page 13 of 13