MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Nov 22 2016, 9:01 am
Memorandum Decision shall not be CLERK Indiana Supreme Court regarded as precedent or cited before any Court of Appeals and Tax Court court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE Michael T. Hotz David W. Stone, IV Spitzer Herriman Stephenson Stone Law Office & Legal Research Holderead Conner & Persinger, LLP Anderson, Indiana Marion, Indiana
IN THE COURT OF APPEALS OF INDIANA In re the Paternity of E.E., November 22, 2016 J.E., Court of Appeals Case No. 27A04-1601-JP-204 Appellant-Petitioner, Appeal from the Grant Superior v. Court The Honorable Jeffrey D. Todd, T.C., Judge Trial Court Cause No. Appellee-Respondent. 27D01-1109-JP-928
Brown, Judge.
Court of Appeals of Indiana | Memorandum Decision 27A04-1601-JP-204 | November 22, 2016 Page 1 of 16 [1] J.E. (“Father”) appeals from the order of the trial court awarding custody of
E.E. (“Child”) to T.C. (“Mother”). Father raises four issues which we
consolidate and restate as whether the court erred in determining the custody of
Child. We affirm.
Facts and Procedural History
[2] Child was born to Father and Mother on January 12, 2009, when Father was
eighteen years old and Mother was sixteen years old. Mother and Father lived
together several times during the first two and one-half years of Child’s life. At
some point, Father and Mother separated permanently, and sometime in March
2011 Father and Child moved in with Father’s father (“Grandfather”) and
mother (“Grandmother,” and together with Grandfather, “Grandparents”).
[3] On September 14, 2011, Father filed a Petition to Establish Paternity and for
Emergency Custody. On October 31, 2011, the court issued an Agreed Order
stating that the parties agreed that Father would have temporary custody of
Child until further order of the court, that Mother would have
supervised/restricted parenting time, and that, should something happen to
Father, Grandparents would be appointed custodians over Child. At some
point, Mother relocated from Marion, Indiana, to Decatur, Indiana, and
traveled to Marion to exercise parenting time with Child.
[4] On October 8, 2014, Mother filed a Petition to Modify Custody and requested a
hearing, and the court later appointed a guardian ad litem (the “GAL”). The
court held an evidentiary hearing on September 29 and November 5 and 6,
Court of Appeals of Indiana | Memorandum Decision 27A04-1601-JP-204 | November 22, 2016 Page 2 of 16 2015, at which it heard testimony from, among others, Father, Mother, child
services workers, Grandfather, Child’s school teacher, Mother’s current
husband, and a school psychologist. Father filed proposed findings of fact on
November 24, 2015, and Mother filed proposed findings of fact on December 1,
2015.
[5] On December 31, 2015, the court entered Findings of Fact, Conclusions of Law,
and Order for Judgment and attached a child support worksheet. Under a
heading for findings of fact, the court found that Father’s September 2011
petition resulted from the fact Child had been physically abused on or about
August 26, 2011 while in Mother’s care, and the abuse was immediately
reported to authorities, Mother was at work when the abuse occurred but
acknowledged that she was using drugs at that time in her life, she was not
charged criminally, and she and her boyfriend fled to Florida for approximately
ten days.1 The court found that Mother exercised supervised/restricted
parenting time until May 15, 2012, at which time the court entered an order
granting her unsupervised visitation, that on June 11, 2013, the court held a
hearing after which it ordered her parenting time to be supervised,2 and that
1 When asked how she returned, Mother testified she went to a place where there was a police officer, she was taken to hospital, her mother was contacted, and her mother and grandfather picked her up at the hospital. 2 The court found that, after the May 15, 2012 order, Mother violated the order by allowing non-family members to be present during her parenting time, as a result Father had petitioned to again restrict her parenting time, the court held a hearing on June 11, 2013, at which Mother failed to appear and of which she claims not to have received timely notice, and that following the presentation of evidence the court again ordered Mother’s parenting time to be supervised.
Court of Appeals of Indiana | Memorandum Decision 27A04-1601-JP-204 | November 22, 2016 Page 3 of 16 Mother thereafter relocated from Marion, Indiana to Decatur, Indiana with her
then boyfriend because he found a higher paying job in Decatur.
[6] The court found that Mother consistently traveled from Decatur to Marion over
the next two years to exercise parenting time with Child, that her time with
Child was sometimes supervised by Father but the majority of her visits were
primarily supervised by Grandfather, and that the parenting time sessions were
difficult in part because the two men supervising her time did little to hide their
animosity toward her. The court found that despite these difficulties Mother
continued to exercise her parenting time with Child when she was pregnant with
twins and after she gave birth to them, one of whom has special medical
needs, in August 2013. The court also noted that Mother filed her petition on
October 8, 2014, that by agreement she was granted unsupervised parenting time
on June 29, 2015, that this parenting time had gone well, and that Mother has
a high school degree and had not used illegal drugs for over four years. The
court found that Father has a GED and that, since October 31, 2011, he has
worked numerous jobs, mostly on third shift.
[7] The court further found that the evidence presented clearly demonstrates that
Grandparents had been Child’s primary caregivers and de facto custodians for
the last four years and that during this time Child has primarily lived at
Grandparents’ home where he has remained at least five nights per week. The
court stated it is troubled by the fact Grandfather routinely strips Child and
photographs him after Mother exercises parenting time, that Grandfather has
taken nearly one hundred photographs of Child, and that Father has done
Court of Appeals of Indiana | Memorandum Decision 27A04-1601-JP-204 | November 22, 2016 Page 4 of 16 nothing to stop it. It found that Father lost his job as a warehouse worker in
September 2015 and currently lived in Grandparents’ home, that he recently
became employed as a first shift cashier at a gas station and intends to continue
residing at Grandparents’ home, and that, unlike the majority of his life during
which he worked third shift jobs, Father believes his current job will allow him
to spend more time with Child before and after school.
[8] The court noted that Child was enrolled in the first grade, has experienced
problems since starting elementary school and was found to qualify for special
education services due to his emotional disability, that an individual education
plan had been developed to help Child, and that there have been some
improvements in Child’s behavior and performance since the plan was
implemented. The court found that Grandfather has been much more active
than Father in monitoring Child’s school progress, and that Grandfather and
Father would not tell Mother where Child was going to school and told her she
was not permitted to contact Child’s school. The court noted that the GAL,
after a thorough investigation, tendered a report recommending that Mother be
awarded primary physical custody of Child, that Mother has matured
significantly since she gave birth to Child at a very young age, and that she is
now married to a responsible man who has a good job and is supportive of her.
It also noted that Mother’s nurturing qualities were apparent to the court, and
that on the other hand Father does not appear to have matured significantly
since Child’s birth, has either left or been terminated from numerous jobs, has
Court of Appeals of Indiana | Memorandum Decision 27A04-1601-JP-204 | November 22, 2016 Page 5 of 16 married and divorced, has moved in and out of his parents’ home, and did not
exhibit nurturing qualities when he testified.
[9] In its conclusions of law, the court stated that, while a permanent custody order
was never entered, Father’s position was that the proceeding was one to modify
custody and that Mother captioned the pleading giving rise to the proceeding as
a petition to modify custody. The court noted there is precedent for using a
modification standard when a parent acquiesces to an emergency order that has
been in place for years, that nonetheless counsel for the parties met the court in
chambers minutes before the hearing on Mother’s petition and agreed that this
was an initial permanent custody determination, and that thereafter the court
announced on the record before any evidence was presented that this was an
initial custody determination and Father offered no objections. The court
concluded that Father waived any claim of error that the trial court used an
incorrect legal standard.
[10] The court concluded that the GAL’s report contains sound reasoning and was
issued following a thorough investigation, that it is in the best interest of Child
that Mother be awarded primary physical custody, and that Mother has
demonstrated she is the more mature, nurturing, and engaged parent which is
especially important as Child suffers from an emotional disability. The court
further concluded that, “[e]ven if it were to apply the stricter modification of
custody standard . . . , the Court finds that a modification of custody in favor of
Mother is in the best interest of child, and there is a substantial change in one
Court of Appeals of Indiana | Memorandum Decision 27A04-1601-JP-204 | November 22, 2016 Page 6 of 16 (1) or more of the factors considered under Ind. Code § 31-14-13-6,”3 namely,
that Child has been primarily cared for by Grandparents and that Child has
developed significant emotional and behavioral issues since the emergency
custody order was entered. The court ordered that Mother maintain primary
physical custody, that Father and Mother have joint legal custody, and that
Father have parenting time pursuant to the Indiana Parenting Time Guidelines
and pay child support of thirty-four dollars per week.
Discussion
[11] The issue is whether the trial court erred in the determining custody of Child.
The trial court’s findings control as to the issues they cover and a general
judgment will control as to the issues upon which there are no findings. Yanoff
v. Muncy, 688 N.E.2d 1259, 1262 (Ind. 1997). When a trial court has made
findings of fact, we apply the following two-tier standard of review: whether the
evidence supports the findings of fact, and whether the findings of fact support
the conclusions thereon. Id. Findings will be set aside if they are clearly
erroneous. Id. Findings are clearly erroneous only when the record contains no
facts to support them either directly or by inference. Id. A judgment is clearly
erroneous if it applies the wrong legal standard to properly found facts. Id. To
3 Ind. Code § 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 section 2 and, if applicable, section 2.5 of this chapter.
Court of Appeals of Indiana | Memorandum Decision 27A04-1601-JP-204 | November 22, 2016 Page 7 of 16 determine that a finding or conclusion is clearly erroneous, our review of the
evidence must leave us with the firm conviction that a mistake has been made.
Id. A general judgment entered with findings will be affirmed if it can be
sustained on any legal theory supported by the evidence. Id.
[12] Father asserts the trial court erred in failing to apply the standard applicable to a
request for a modification of custody, that he did not waive this argument, and
that he made the argument in his proposed findings. In addition, Father
contends that the evidence does not support the trial court’s findings that
Grandparents were de facto custodians of Child, that the court did not make
findings that Grandparents provided the majority of Child’s financial support,
that “[w]hile [Child’s] time with Grandparents varied throughout the four years
prior to the Court judgment, the record is filled with testimony that Father
cared for [Child] regularly,” and that the findings “essentially penalized Father
for allowing Grandparents to care for his son when at work.” Appellant’s Brief
at 18. Father also asserts the court did not properly examine all the statutory
factors in examining the best interest of Child including the wishes of Child,
Father’s interaction and relationship with Child, Child’s adjustment to his
home, school, and community, and the mental and physical health of Child if
forced to relocate.
[13] Mother maintains the court correctly treated the case as involving an initial
determination of custody because Father had been previously given temporary
custody and the court had not entered a permanent custody order, that there
was agreement of counsel for both parties that this was an initial custody
Court of Appeals of Indiana | Memorandum Decision 27A04-1601-JP-204 | November 22, 2016 Page 8 of 16 determination, that Father made no effort during the presentation of evidence to
claim that the proceeding was a modification hearing, and that Father has
waived this claim of error. Mother notes that the court’s order stated that
Grandparents never sought permanent custody and, accordingly, the custody
dispute is solely between Father and Mother, and she argues that any error by
the court in stating that Grandparents were de facto custodians is harmless since
it played no role in the court’s decision. Mother further argues the evidence
shows Child spent the vast majority of his out of school time with Grandparents
and that the GAL’s report concluded that it appears Grandparents were the ones
taking care of most of Child’s primary needs. In addition, Mother argues the
court properly awarded custody to her, that Father did not present any
evidence regarding Child’s wishes and Child was six years old at the time of the
court’s decision, and that the court made a number of statements regarding
Father’s relationship with Child and Child’s school performance which Father
does not challenge.
[14] We observe that, following Father’s September 14, 2011 Petition to Establish
Paternity and For Emergency Custody, the trial court entered an Agreed Order
on October 31, 2011, which provided that “[t]he parties agree that [F]ather shall
have the temporary custody of the parties’ minor son until further order of the
court.” Appellant’s Appendix at 75. Although Mother’s October 8, 2014
motion requesting a hearing was captioned a petition to modify custody, the
trial court clarified at the very beginning of the evidentiary hearing that it was
making an original custody determination. Specifically, the court stated:
Court of Appeals of Indiana | Memorandum Decision 27A04-1601-JP-204 | November 22, 2016 Page 9 of 16 Alright, just a few matters for the record before we actually begin with the presentation of evidence. This is an older file. The original Petition for Paternity and Custody was filed back in 2011. The only Order that’s ever been entered was an Emergency Order. There’s never been a permanent custody determination. So this is not a modification hearing. This is an original determination of permanent custody. . . .
Transcript at 3. Father does not argue or point to the record to show that he
objected to the trial court’s determination at that time or at any point during the
evidentiary hearing or argued to the trial court that the standard for custody
modification should apply because Mother acquiesced to an emergency custody
order. Accordingly, Father has waived our consideration of whether the
determination was one of initial custody or change of custody. See Werner v.
Werner, 946 N.E.2d 1233, 1245-1247 (Ind. Ct. App. 2011) (holding that the
mother waived her claim of error and observing that a timely objection is a
prerequisite to appellate review) (citing Trout v. Trout, 638 N.E.2d 1306, 1307-
1308 (Ind. Ct. App. 1994), trans. denied), trans. denied.4
[15] A trial court’s custody determination is afforded considerable deference as it is
the trial court that sees the parties, observes their conduct and demeanor, and
hears their testimony. Kondamuri v. Kondamuri, 852 N.E.2d 939, 945-946 (Ind.
Ct. App. 2006). Thus, on review, we will not reweigh the evidence, judge the
credibility of witnesses or substitute our judgment for that of the trial court. Id.
4 To the extent the language of Werner may be unclear regarding waiver under these circumstances, we note that a party cannot waive application of the appropriate standard of review.
Court of Appeals of Indiana | Memorandum Decision 27A04-1601-JP-204 | November 22, 2016 Page 10 of 16 at 946. We will reverse the trial court’s custody determination only if it is
clearly against the logic and effect of the facts and circumstances or the
reasonable inferences drawn therefrom. Id.
[16] The standard for an initial custody determination is set forth in Ind. Code § 31-
14-13-2, which provides:
The court shall determine custody and enter a custody order in accordance with the best interests of the child. In determining the best interests of the child, there is no 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 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.
Court of Appeals of Indiana | Memorandum Decision 27A04-1601-JP-204 | November 22, 2016 Page 11 of 16 (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 section 2.5(b) of this chapter.
[17] Ind. Code § 31-9-2-35.5 provides:
“De facto custodian”, for purposes of IC 31-14-13, IC 31-17-2, and IC 31-34-4, means a person who has been the primary caregiver for, and financial support of, a child who has resided with the person for at least: (1) six (6) months if the child is less than three (3) years of age; or (2) one (1) year if the child is at least three (3) years of age. Any period after a child custody proceeding has been commenced may not be included in determining whether the child has resided with the person for the required minimum period. . . .
[18] Ind. Code § 31-14-13-2.5(b) provides:
In addition to the factors listed in section 2 of this chapter, the court shall consider the following factors in determining custody: (1) The wishes of the child’s de facto custodian. (2) The extent to which the child has been cared for, nurtured, and supported by the de facto custodian. (3) The intent of the child’s parent in placing the child with the de facto custodian. (4) The circumstances under which the child was allowed to remain in the custody of the de facto custodian, including whether the child was placed with the de facto custodian to allow the parent now seeking custody to: (A) seek employment; (B) work; or
Court of Appeals of Indiana | Memorandum Decision 27A04-1601-JP-204 | November 22, 2016 Page 12 of 16 (C) attend school.
[19] We observe that the trial court entered findings that Grandparents have never
sought permanent custody of Child and that, accordingly, the custody dispute is
solely between Father and Mother. Ind. Code § 31-14-13-2 requires a trial
court, in making a custody determination in accordance with the best interests of
the child, to consider all relevant factors including evidence the child has
been cared for by a de facto custodian under subsection (8) and also evidence of
the other factors listed in subsections (1) through (7). Even if Grandparents were
not de facto custodians, the court was required to consider the interaction
and interrelationship of Child with his “parents . . . and . . . any other person
who may significantly affect [Child’s] best interests” under Ind. Code § 31-14-
13-2(4). The trial court’s findings reflect that, in determining whether to award
primary physical custody to Mother or Father, the court considered the extent to
which Child was cared for, nurtured, and supported by Grandparents and the
circumstances under which Child stayed with Grandparents. Further, the
evidence before the court included testimony regarding Father’s employment
and work schedule since he and Mother separated, the extent to which Father
and Child lived with Grandparents, the extent of the involvement of Father and
Grandparents in making decisions related to the care of Child, and the GAL’s
report regarding the involvement of Father and Grandparents in Child’s life,
including the GAL’s conclusions that it appeared Grandparents were the ones
taking care of most of Child’s primary needs. The court was troubled by the fact
Grandfather routinely strips Child and photographs him after Mother
Court of Appeals of Indiana | Memorandum Decision 27A04-1601-JP-204 | November 22, 2016 Page 13 of 16 exercises parenting time, that Grandfather has taken nearly one hundred
photographs of Child during this ritual, that despite making several reports no
charges have ever been filed against Mother, and that while Father knows about
the ritual and claims to disagree with it, he has done nothing to stop it.
[20] The trial court’s findings and conclusions reflect that it considered the other
factors set forth in Ind. Code § 31-14-13-2 as well. The order demonstrates the
court considered evidence of Child’s abuse, the interaction of Child and
Mother, Father, and Grandfather, Child’s adjustment in school, and the age,
mental health, and development of Child and the maturity of Mother and
Father. In particular, the court issued findings regarding the abuse of Child in
August 2011 and the subsequent investigation; Mother’s participation in
parenting time with Child and how well the parenting time had gone; the
previous conduct of Father and Grandfather during Mother’s parenting time;
Mother’s employment and the fact she is married to a responsible person who
has a good job and Father’s education, living arrangements, and numerous jobs
since October 2011. The order notes Child’s problems since starting school
including anger control, anxiety, difficulty starting and finishing tasks, difficulty
following instructions, and that he has urinated on other students; Child’s
evaluation by a school psychologist and qualification for special education
services, his individual education plan, his relative improvement since the plan
was implemented, and Father’s lack of interest in the psychologist’s report or
the education plan; and the behavior of Father and Grandfather in not telling
Mother where Child attended school and that she was not permitted to contact
Court of Appeals of Indiana | Memorandum Decision 27A04-1601-JP-204 | November 22, 2016 Page 14 of 16 Child’s school. The court stated it was very troubled by the fact Father only
skimmed the school psychologist’s report and did not appear particularly
interested in the report’s findings and that Father did not know Child’s
diagnosis and referred to it as “a big word.” Appellant’s Appendix at 13. The
court also found that Child began receiving counseling in late September 2015
and stated that it was difficult to understand why Father waited so long to seek
counseling for Child.
[21] With respect to Father’s argument that the court did not properly address the
opinions of Child’s teacher and school psychologist, the record shows that
Child’s teacher testified that she witnessed Child’s behaviors of name calling,
pulling down his pants in public, urinating on the floor and on other students,
hitting himself, stabbing himself with a pencil, and hitting, kicking, and pushing
other students, and that Child’s behavior did not improve “a lot” throughout the
school year but “a little to the positive towards the end of the year.”
Transcript at 228. The court also heard the testimony of the school
psychologist regarding her evaluation of Child, that Child’s individual
education plan would follow Child to whichever school system Child enrolls,
and that she could not speak to the level of support Child might receive at
another school.
[22] With respect to the wishes of Child, Ind. Code § 31-14-13-2 provides that a
court shall give more consideration to the child’s wishes if the child is at least
fourteen years of age. The court found that Child was born on January 12,
2009, and Father does not point to the record to show that he presented
Court of Appeals of Indiana | Memorandum Decision 27A04-1601-JP-204 | November 22, 2016 Page 15 of 16 evidence regarding Child’s wishes which the court failed to consider. The
GAL’s report indicated that she did not believe the age and sex of the child
favored an award of custody to either parent and that Child does not have the
emotional capacity to make a decision of this magnitude and is in no way able
to weigh in on this type of a decision. The court heard the testimony of Father,
Mother, Grandfather, Child’s teacher and school psychologist, and Mother’s
current husband, and counsel for the parties thoroughly examined each of the
witnesses. In light of the findings and conclusions of the court and the
testimony presented at the evidentiary hearing, we cannot say that the trial
court failed to consider Father’s interaction with Child, Child’s adjustment to
his home, school, and community, the mental and physical health of Child, or
the opinions of Child’s teacher or school psychologist.
[23] Based upon the record and the trial court’s order, we conclude that the trial
court did not err in determining that Mother shall have primary physical
custody of Child.
Conclusion
[24] For the foregoing reasons, we affirm the trial court’s custody determination.
[25] Affirmed.
Robb, J., and Mathias, J., concur.
Court of Appeals of Indiana | Memorandum Decision 27A04-1601-JP-204 | November 22, 2016 Page 16 of 16