In Re the Paternity of H.A., A.A. v. R.M. and B.M. (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: August 26, 2015
• Docket: 57A03-1504-JP-128
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Aug 26 2015, 8:54 am regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Jeffrey T. Jones, Jr. Andrew P. Simmons Jones Law, PC Lindsey A. Davenport Warsaw, Indiana VanGilder & Trzynka Fort Wayne, Indiana

IN THE COURT OF APPEALS OF INDIANA

In Re the Paternity of H.A. August 26, 2015 Court of Appeals Case No. A.A. 57A03-1504-JP-128 Appellant, Appeal from the Noble Superior Court v. The Honorable James R. Heuer Trial Court Cause No. R.M. and B.M., 57C01-9809-JP-82 Appellee

Bailey, Judge.

Court of Appeals of Indiana | Memorandum Decision 57A03-1504-JP-128 | August 26, 2015 Page 1 of 12 Case Summary [1] A.A. (“Mother”) appeals the denial of her petition to modify the physical

custody of her now-seventeen-year-old daughter, H.A., who has been cared for

by R.M. and B.M. (“Intervenors”) since H.A.’s infancy. 1 We affirm.

Issues [2] Mother presents two issues for review:

I. Whether the trial court abused its discretion by denying a motion for appointment of a neutral custody evaluator to assist Mother’s court-appointed attorney; and

II. Whether there exists sufficient evidence to support the custody decision.

Facts and Procedural History [3] The parties agreed that the trial court would render its custody decision based

upon the submission of court-ordered mental health care provider reports,

parenting-time summaries, and other documentary exhibits. No evidentiary

1 When H.A.’s biological father, V.M., was still living, R.M. and B.M. were permitted to intervene in custody proceedings involving V.M. and Mother. Thus, R.M. and B.M. are referred to as Intervenors in court documents. It appears that they also acted as “de facto custodians.” Indiana law defines a “de facto custodian” as someone who has been the primary caregiver for, and financial support of, a child who has resided with the person for at least six months if the child is less than three years of age or one year if the child is at least three years of age. Ind. Code § 31-9-2-35.5. Here, the trial court found that Intervenors had provided primary care and supervision to H.A. for the majority of her life, under an informal custody arrangement.

Court of Appeals of Indiana | Memorandum Decision 57A03-1504-JP-128 | August 26, 2015 Page 2 of 12 hearing was conducted. Thus, our statement of the facts is based upon the

paper record before the trial court.

[4] During her later teenage years, Mother moved in with Intervenors. Also living

in the home were the Intervenors’ sons and another teenager, V.M. During

1997, Mother became pregnant by V.M. H.A. was born in May of 1998. Some

years later, Mother married one of Intervenors’ sons. They moved into a

marital residence but did not take H.A. to live with them full-time.

Subsequently, they divorced. 2

[5] Intervenors claim that H.A. has resided with them almost exclusively since

H.A.’s birth, with the maternal grandmother caring for H.A. for approximately

one month during her infancy, and Mother having some two-day visits.

According to Mother, she and Intervenors developed an informal shared

custody arrangement and she did not relinquish H.A.’s physical care to

Intervenors. Nonetheless, the first court order as to H.A.’s custody was entered

on March 16, 2010. At that time, Intervenors were awarded physical custody

of H.A. Mother was allowed supervised parenting time. 3

2 V.M. is now deceased. 3 Mother had been diagnosed with some mental health disorders and was experiencing suicidal ideations. Reportedly, she had made threats to take H.A. to the home of a relative Mother had accused of molesting Mother. According to Mother’s plan, she would tuck H.A. into bed and then leave and commit suicide. When H.A. awakened, she would be in the custody of the maternal relative and she would then experience and understand what Mother had experienced.

Court of Appeals of Indiana | Memorandum Decision 57A03-1504-JP-128 | August 26, 2015 Page 3 of 12 [6] On July 16, 2013, the trial court restricted Mother’s parenting time to

therapeutic supervised parenting time with Family Connections. The trial court

also ordered that Mother, H.A., and Intervenors participate in counseling

sessions with Dr. Amanda Mayle. Initially, visits at Family Connections went

well. However, H.A. began to report anxiety about the visits and she began to

refuse to actively participate. 4

[7] During a November 2013 session in Dr. Mayle’s office, H.A. was physically

aggressive with Mother and Mother called the police, seeking to have H.A.

placed in a juvenile facility away from the influence of Intervenors. Dr. Mayle

recommended to the trial court that the parenting time sessions be suspended.

According to Dr. Mayle, H.A.’s level of anger toward Mother had not

decreased despite the extensive participation in services, and Dr. Mayle feared

H.A. would exhibit self-destructive and physically aggressive behaviors in the

future if the sessions continued. At the same time, therapist Trish Fox (“Fox”)

reported that sessions at Family connections were not going well. An order of

December 10, 2013 suspended the therapeutic parenting time sessions.

[8] On April 9, 2014, Mother filed a Motion for Modification of Custody. She also

sought to have Intervenors held in contempt of court. After Mother’s attorney

4 H.A. has been diagnosed with a generalized anxiety disorder, attention-deficit disorder, and oppositional- defiant disorder.

Court of Appeals of Indiana | Memorandum Decision 57A03-1504-JP-128 | August 26, 2015 Page 4 of 12 was granted permission to withdraw, the trial court appointed an attorney for

Mother at public expense. A Guardian Ad Litem (“GAL”) was also appointed.

[9] In July of 2014, the GAL submitted her report to the trial court. She observed

that Mother’s personal therapist, Dr. Jason Cook, had opined that Mother was

a suitable caregiver for H.A. The GAL recommended the appointment of a

neutral custody evaluator to address possible parental alienation syndrome. On

August 27, 2014, Mother filed a request for a court-appointed custody

evaluator. Intervenors filed an objection. On September 23, 2014, Special

Judge James Heuer issued an order stating that the request would “remain

under advisement until the evidentiary hearing is conducted on December 17,

2014.” (App. at 114.)

[10] On December 17, 2014, the parties submitted a stipulation waiving a hearing

and providing that written briefs and exhibits would be submitted to the special

judge. On February 27, 2015, the special judge denied the motion for custody

modification. Intervenors were found not to be in contempt of court. H.A. was

to continue in individual counseling sessions, and parenting time remained

suspended. This appeal ensued.

Discussion and Decision Request for Custody Evaluator [11] The trial court was given reports from Dr. Mayle, Dr. Cook, the GAL, and

Fox. Mother also requested a custody evaluator who was not privy to the

Court of Appeals of Indiana | Memorandum Decision 57A03-1504-JP-128 | August 26, 2015 Page 5 of 12 history of the case. After a telephonic hearing, 5 the request was taken under

advisement until the scheduled hearing date. 6 However, on the scheduled

hearing date, the parties filed their stipulation of agreement to submit written

briefs and materials in lieu of testimony. Ultimately, the ruling upon the

request for a custody evaluator was made as part of the order denying custody

modification.

[12] Mother claims that the trial court abused its discretion by failing to appoint a

custody evaluator to assist her court-appointed attorney in countering Dr.

Mayle’s opinion. According to Mother, although she relied heavily upon Dr.

Cook’s reports to support her request for custody, Dr. Cook was at a

disadvantage because he had not examined H.A. or the Intervenors. Mother

opines that a custody evaluator would have uncovered indications of systematic

parental alienation efforts on the part of Intervenors.

[13] Mother does not point to authority suggesting that a litigant in a custody matter

is entitled to a custody evaluator at public expense. Rather, she asserts that she

was effectively stripped of all meaningful parental rights and thus suffered a

deprivation of such magnitude that it is analogous to the deprivation of liberty

experienced by criminal defendants. Even so, she acknowledges that

5 Mother asserts that an unrecorded telephonic hearing was held on August 29, 2014. We have no record of this hearing. Assuming that evidence was presented, Mother has not elected to prepare a verified statement of the evidence pursuant to Indiana Appellate Rule 31. 6 The trial court issued an order dated September 23, 2014 stating that the parties apparently lacked private funds for a custody evaluator, and the GAL had filed a “comprehensive report” with the court on July 30, 2014. (App. at 114.)

Court of Appeals of Indiana | Memorandum Decision 57A03-1504-JP-128 | August 26, 2015 Page 6 of 12 appointment of an expert for a criminal defendant is within the trial court’s

discretion and a defendant cannot simply rely upon a blanket statement of need.

See McConniel v. State, 974 N.E.2d 543, 557-58 (Ind. Ct. App. 2012) (discussing

the factors a trial court may consider when a defendant undertakes to make a

specific showing of the benefits of an expert: whether the expert’s services

would bear on an issue for which expert opinion would be necessary or the

request appears to be exploratory only, whether the services will likely answer a

substantial question or merely an ancillary one, the severity of the penalty

faced, the cost, and the complexity of the case).

[14] In this case, the trial court received expert advice from multiple sources. Dr.

Mayle submitted eight status reports regarding the joint therapy sessions for

Mother and H.A. conducted from July 2012 to November, 2013. Dr. Cook,

who was Mother’s therapist, and Fox, the therapist who supervised the

therapeutic parenting sessions, each submitted reports. Mother insists that a

new evaluator could have brought to light evidence of conduct on the part of

Intervenors amounting to parental alienation. However, given the wealth of

professional opinions already before the trial court, and a prior order of the trial

court explicitly finding that Intervenors had not engaged in alienation conduct,

this appears to be an exploratory wish. Mother has not demonstrated that the

trial court abused its discretion by refusing her request for a custody evaluator.

Court of Appeals of Indiana | Memorandum Decision 57A03-1504-JP-128 | August 26, 2015 Page 7 of 12 Sufficiency [15] Where, as here, the trial court has entered findings and conclusions in

accordance with Indiana Trial Rule 52, we employ a two-tiered standard of

review. In re Intervenorship of L.L., 745 N.E.2d 222, 227 (Ind. Ct. App. 2001),

trans. denied. We first determine whether the evidence supports the findings,

and then consider whether the findings support the judgment. Id. The trial

court’s findings and judgment will not be set aside unless they are clearly

erroneous. Id. A judgment is clearly erroneous when it is unsupported by the

conclusions drawn, and conclusions are clearly erroneous when they are not

supported by findings of fact. Id. A judgment is also clearly erroneous when

the trial court has applied the wrong legal standard to properly found facts.

Fraley v. Minger, 829 N.E.2d 476, 482 (Ind. 2005). In reviewing the order being

appealed, we will neither reweigh the evidence nor assess witness credibility. In

re M.B. and P.B., 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans. denied. Rather,

we will consider only the evidence that supports the trial court’s judgment

together with all reasonable inferences to be drawn therefrom. Id.

[16] The trial court made factual findings to the effect that: H.A. had exhibited

anger and hostility toward Mother; Mother lacked appropriate skills to interact

with H.A. when challenged; H.A. expressed a specific desire to discontinue

visits; she exhibited physical and behavioral problems after visits (including

“refusing to eat, indigestion, rages and rantings about her mother, exhaustion,

and inability to sleep”); after suspension of visits, H.A.’s mood, grades, and

Court of Appeals of Indiana | Memorandum Decision 57A03-1504-JP-128 | August 26, 2015 Page 8 of 12 willingness to engage in social activities had improved; and Dr. Mayle

recommended that H.A. not be forced into parental visits. (App. at 46.)

[17] Mother does not allege that the trial court’s findings of fact are unsupported by

the evidence. Rather, Mother contends that Intervenors failed to establish that

it is in H.A.’s best interests to remain with Intervenors. Mother argues that no

evidence was presented to show she was unfit, neglectful, or a physical danger

to H.A. However, she concedes that H.A. could not be immediately placed in

her physical custody “due to the state of their relationship.” (Appellant’s Br. at

23.) She requests placement with a “neutral family member” and involvement

of “a disinterested and new therapist for a fresh look.” (Appellant’s Br. at 24.)

As best we can discern Mother’s argument, she contends that – absent a specific

showing of her unfitness – she should be able to determine where H.A. resides

and the best placement would be with a maternal relative.

[18] Our Indiana Supreme Court described in detail the legal framework applicable

to custody disputes between a natural parent and a third party. In re K.I., 903

N.E.2d 453, 462 (Ind. 2009). In particular, K.I. involved a parent’s action to

take custody of his daughter and in so doing terminate her grandparents’

Intervenorship over her. First, the Court observed that custody modifications

are reviewed for an abuse of discretion, with a preference for deference to our

trial judges in family law matters. Id. at 457. The Court then recognized that,

pursuant to Indiana Code section 31-14-13-6, child custody may not be

modified unless the modification is in the best interests of the child, and there is

Court of Appeals of Indiana | Memorandum Decision 57A03-1504-JP-128 | August 26, 2015 Page 9 of 12 a substantial change in one or more of the factors that the court may consider

under section 31-14-13-2 and, if applicable, section 31-14-13-2.5. 7 Id.

[19] However, the Court in K.I. clearly reiterated that the non-parent must overcome

the “important and strong presumption” that a child’s best interests are best

served by placement with his or her natural parent. Id. at 459 (citing In re

Intervenorship of B.H., 770 N.E.2d 283, 287 (Ind. 2002)). The burden is one of

clear and convincing evidence proving that the child’s best interests are

“substantially and significantly” served by the third-party placement. Id. The

Court specifically rejected a “burden-shifting regime” placing the third party

and the parent on a level playing field, as this would be inconsistent with long-

standing State precedent. Id. at 460.

[20] Although the party seeking a change of custody must persuade the trial court

that modification is in the best interests of the child and there is a substantial

change in one of the afore-mentioned statutory factors, “these are modest

requirements where the party seeking to modify custody is the natural parent of

7 The non-exhaustive list of relevant factors includes (1) the age and sex of the child, (2) the wishes of the child’s parents, (3) the wishes of the child, (4) the interaction and interrelationship of the child with the child’s parents, siblings, and 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, and (8) evidence that the child has been cared for by a de facto custodian. Section 2.5 is applicable only if the court finds by clear and convincing evidence that the child has been cared for by a de facto custodian. If so, in addition to the factors listed in section 2, the court shall consider (1) the wishes of the child’s de facto custodian, the extent to which the child has been cared for, nurtured, and supported by the de facto custodian, the intent of the child’s parent in placing the child with the de facto custodian, and the circumstances under which the child was allowed to remain in the custody of the de facto custodian (including whether placement was to allow the parent to seek employment, work, or attend school). Ind. Code § 31-14-13-2.5(b). Pursuant to subsection (d), the court shall award custody of the child to the de facto custodian if the court determines that it is in the best interests of the child.

Court of Appeals of Indiana | Memorandum Decision 57A03-1504-JP-128 | August 26, 2015 Page 10 of 12 a child who is in the custody of a third party.” Id. The “parent comes to the

table with a strong presumption” and the burden imposed by the statutory

requirements is “minimal.” Id. When the parent meets this “minimal burden,”

the third party must prove by clear and convincing evidence that the child’s best

interests are substantially and significantly served by placement with another

person. Id. at 461 (citing B.H., 770 N.E.2d at 287). If the third party carries the

burden, custody of the child remains in the third party. Id. at 461. “Otherwise,

custody must be modified in favor of the child’s natural parent.” Id.

[21] In short, in a custody dispute between a parent and a third party, even where

the parent seeks to reobtain custody, the burden of proof that third-party

custody is warranted is always upon the third party. See id. Thus, Mother

correctly asserts that the Intervenors had to establish that H.A.’s best interests

were substantially and significantly served by the continued placement outside

Mother’s home. However, contrary to Mother’s suggestion, the Intervenors

need not have specifically established Mother’s unfitness to parent. See In re

B.H., 770 N.E.2d at 287 (observing that evidence of unfitness, acquiescence, or

creation of a strong emotional bond is important, but clarifying that a trial court

is not limited to these factors).

[22] Crucially, Mother is admittedly not able to take physical custody of H.A. Her

insistence that H.A. would benefit from yet another third-party placement – late

in her teenaged years – presents an invitation to reweigh the evidence of best

interests. This Court is prohibited from reweighing the evidence. Id. at 288.

Accordingly, we decline to do so.

Court of Appeals of Indiana | Memorandum Decision 57A03-1504-JP-128 | August 26, 2015 Page 11 of 12 Conclusion [23] The trial court did not abuse its discretion by refusing to appoint a custody

evaluator. There is sufficient evidence to support the custody decision.

[24] Affirmed.

Baker, J., and Brown, J., concur.

Court of Appeals of Indiana | Memorandum Decision 57A03-1504-JP-128 | August 26, 2015 Page 12 of 12