In re the Paternity of P.B., M.L.B. v. D.L.B.

60 N.E.3d 1092, 2016 Ind. App. LEXIS 269, 2016 WL 4062092
CourtIndiana Court of Appeals
DecidedJuly 29, 2016
Docket03A05-1601-JP-46
StatusPublished
Cited by1 cases

This text of 60 N.E.3d 1092 (In re the Paternity of P.B., M.L.B. v. D.L.B.) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re the Paternity of P.B., M.L.B. v. D.L.B., 60 N.E.3d 1092, 2016 Ind. App. LEXIS 269, 2016 WL 4062092 (Ind. Ct. App. 2016).

Opinion

MATHIAS, Judge.

[1] M.L.B. (“Father”) appeals the order of the Bartholomew Circuit Court denying his petition to enforce the trial court's previous parenting time and reunification orders and his petition to hold D.L.B. (“Mother”) in contempt for her failure to cooperate with reunification and parenting time. On appeal, Father claims that the trial court abused its discretion by failing to enforce its previous orders.

[2] We reverse and remand.

Facts and Procedural History 1

[3] This case has a long procedural history, and this is the third time this case has come up on appeal to our court. P.B. was born in July 2001, and paternity was established by agreement between Mother and Father on November 20, 2001, Mother was granted primary physical custody of the child, and Father was granted parenting time and ordered to pay child support.

[4] From 2002 to 2004, the parties repeatedly litigated issues regarding parenting time and other related matters. In April 2007, the parties again litigated issues regarding parenting time, and the trial court found Mother in contempt for failing to comply with the court’s parenting time order. In December of 2008, the parties once again litigated the issue of child support and parenting time, and Father was given “make-up” parenting time.

[5] In 2009, Mother filed a petition for contempt against Father relating to an allegation that Father had failed to comply with the parenting time order. On March 4, 2009, Mother filed an emergency petition to modify and terminate Father’s parenting time. This petition referenced allegations that Father had held a gun to P.B.’s head and had masturbated in his presence on separate occasions in late 2008. These allegations were reported to Child Protective Services (“CPS”), which found them to be unsubstantiated. On March 17, 2009, Father filed a petition for contempt, apparently related to Mother’s alleged interference with and denial of parenting time, and a petition to modify parenting time. Father subsequently moved the trial court to appoint a guardian ad litem (“GAL”), appoint a counselor to conduct a psychological evaluation, and have all parties submit to counseling. On June 1, 2009, the trial court, denied Father’s request to appoint a GAL and to appoint an evaluative counselor. On July 27, 2009, Mother filed another petition for contempt.

[6] The court held a hearing on these pending motions, and on December 11, 2009, entered an order noting that although Mother’s November 17, 2008 petition facially sought only to modify parenting time, her request actually sought to terminate Father’s parenting time entirely. The trial court concluded that because Mother sought to eliminate all of Father’s parenting time, she had to demonstrate by “clear and convincing” evidence that termination of parenting time was in P.B.’s best interest, similar to the standard used when the State seeks to terminate parental rights. Applying this heightened standard to the evidence, the court concluded that Mother did not meet that burden and ordered that Father have parenting time pursuant to the Indiana Parenting Time Guidelines.

*1094 [7] Mother appealed and we reversed, holding that the appropriate burden of proof was the preponderance. of the evidence standard. See In re Paternity of P.B., 932 N.E.2d 712, 720 (Ind.Ct.App.2010). We remanded for the trial court to reconsider the matter applying the proper standard. Id.

[8] On remand, the trial court held another hearing and issued an order that found that, under the less burdensome preponderance of the evidence standard, Father’s parenting time should be limited but not eliminated or supervised “to allow for [Father] and [P.B.] to slowly reunify their relationship.” The court therefore granted father six hours of parenting time every Saturday in addition to Christmas Eve and New Year’s Day.

[9] Mother again appealed, and we affirmed. In re Paternity of P.B., No. 03A01-1012-JP-653, 2011 WL 4834251 (Ind.Ct.App. Oct. 12, 2011). In so doing, we noted that the trial court made no finding that parenting time with Father would endanger P.B.’s physical health or well-being or would significantly impair his emotional development. Id. at *3. In fact, instead of eliminating Father’s parenting time as requested by Mother, the trial court determined that Father should have six hours of unsupervised visitation per week. Id. We therefore concluded that the trial court “determined that Mother did not meet her burden to establish by a preponderance of the evidence that parenting time with Father would endanger or impair P.B,” Id.

[10] Noting the evidence favorable to the trial court’s decision, we held that the trial court’s decision to not eliminate Father’s parenting time was not an abuse of its discretion. 2 Id.

[11] Unsatisfied with this court’s decision, Mother sought rehearing. However, her petition did not point out any legal or factual error in our decision and merely asked us to reweigh the evidence.. We denied Mother’s request but granted rehearing for the limited purpose of awarding Father appellate attorney fees due to Mother’s procedural bad faith in filing the petition for rehearing. In re Paternity of P.B., 03A01-1012-JP-653, 2011 WL 6660408 (Ind.Ct.App. Dec. 20, 2011). The trial court subsequently awarded Father *1095 $1,024 in attorney fees pursuant to our decision on rehearing and appointed a counselor to assist in the reunification of Father and P.B.

[12] Alas, this was not the end of the parties’ conflict. Mother continued to refuse to allow P.B. to visit Father. And P.B. began to refuse to visit Father. Therefore, on February 13, 2012, Father filed a citation for contempt against Mother. Two days later, Mother filed a petition to modify custody and a citation for contempt against Father. The court held a hearing on these and other pending motions over three days, and on November 9, 2012, entered the following findings and conclusions:

Findings of Fact
3. In this Court’s Order on Remand of December 8, 2010, [Father] was given parenting time as follows.... Despite the clarity of this Order, [Father] has had no parenting time since December 25, 2009, because [Mother], by her own frank admission, has not allowed it.
4. In May or June of 2010, [Father] attempted to attend an “award ceremony” at [P.B.] ’s school. A school official asked him to leave, for reasons still unclear, and [Father] left so as not to create a scene.
5. Since the Order on Remand of December, 2010, [P.B.] has continued to counsel with William C. “Pete” Link. Mr. Link also meets with [Mother], but has never met with [Father]. Mr. Fink’s basic opinion in 2012 is unchanged from his previous opinion that something terribly bad has happened between [P.B.] and [Father] and that [Father] have no parenting time with [P.B.] and to permit-parenting time will devastate [P.B.]

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Bluebook (online)
60 N.E.3d 1092, 2016 Ind. App. LEXIS 269, 2016 WL 4062092, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-paternity-of-pb-mlb-v-dlb-indctapp-2016.