MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Aug 11 2016, 8:39 am this Memorandum Decision shall not be 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 Shana D. Tesnar Kathleen M. Meek Adler Tesnar & Whalin Bowen & Associates, LLC Noblesville, Indiana Carmel, Indiana
IN THE COURT OF APPEALS OF INDIANA
K.M., August 11, 2016 Appellant-Respondent, Court of Appeals Case No. 29A02-1602-DR-258 v. Appeal from the Hamilton Circuit Court A.M., The Honorable Paul A. Felix, Appellee-Petitioner Judge Trial Court Cause No. 29C01-1403-DR-2047
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 29A02-1602-DR-258 | August 11, 2016 Page 1 of 7 [1] K.M. (Mother) appeals the order of the trial court, which modified her
parenting time to be contingent on her participation in mental health treatment.
Finding that the trial court made no error by modifying Mother’s parenting
time, we affirm.
Facts [2] Mother and A.M. (Father) were married on April 10, 1999, and had four
children together. In March 2014, Father filed a petition to dissolve the
marriage.
[3] The trial court ordered an evaluation of each parent by a custody evaluator, Dr.
Louis Pilipis. After completing the evaluation, Dr. Pilipis found that both
parents had mental health issues, but that Mother’s “mental health issues are
severe and chronic in nature and require longstanding treatment.” Appellee’s
App. p. 216. Dr. Pilipis found a 2013 incident particularly troubling, where
Mother stabbed Father in the back with a pair of scissors. Dr. Pilipis also found
that Mother frequently goes into a state of rage, and worried that if Father were
not around to bear the brunt of this rage, it might be directed toward the
children. Dr. Pilipis listened to several recordings that Father made of Mother’s
behavior. In one recording, Mother tells Father that one of their children “got
his ass whooped” for watching television instead of cleaning. Id. at 195.
Mother went on to refer to this child, who is developmentally disabled, as an
“ungrateful brat,” “selfish,” a “leech,” and a “resource drain.” Id. Throughout
this tirade, Mother threatened the child with further physical punishment.
Court of Appeals of Indiana | Memorandum Decision 29A02-1602-DR-258 | August 11, 2016 Page 2 of 7 [4] After her evaluation, Dr. Pilipis recommended that Father be given physical
custody of the children and that Mother “be court ordered to participate in
mental health treatment, which should be frequent (i.e., at least twice a month)
and ongoing (i.e., for at least 6 months). Parenting time should be contingent
upon [Mother] adhering to court ordered treatment recommendations.” Id. at
219.
[5] The parties mediated a dissolution decree, and a final settlement agreement (the
Agreement) was approved by the trial court on November 5, 2014. As part of
this Agreement, the parties agreed that Father would have sole legal and
physical custody of the children, and that Mother would have three hours of
supervised parenting time per week, subject to further orders by the trial court.
[6] On February 11, 2015, Father petitioned the trial court to modify the parenting
time arrangement. He argued that several alleged incidents that had taken
place since the settlement agreement indicated that Mother’s untreated mental
illness was resulting in harm to the children. He requested that the trial court
modify the Agreement to adopt the recommendation of Dr. Pilipis that any
future supervised visitation by Mother be contingent on her participating in
psychiatric treatment. Appellant’s App. p. 45.
[7] On April 2, 2015, Father filed an addendum to this petition, which informed
the trial court of the following. Mother had been using the Mending Fences
agency for her supervised visitations. On February 24, 2015, Mother attempted
to bring a concealed knife into the facility. When the staff questioned her, she
Court of Appeals of Indiana | Memorandum Decision 29A02-1602-DR-258 | August 11, 2016 Page 3 of 7 simply took the knife out to her car. Because this violated Mending Fences’
policy on not bringing weapons to supervised parenting time, Mending Fences
refused to conduct further supervised parenting time for Mother.
[8] The trial court held a hearing on the matter on October 27, 2015. At the
hearing, Dr. Pilipis reiterated her recommendation that Mother’s parenting
time be contingent on her engaging in intensive mental health treatment. She
expressed concern over the concealed knife incident, given that Mother had
previously stabbed Father. Father testified that Mother had not attempted to
contact him or the children since her visitation ended in February 2015. At the
hearing, Mother said she did not want to participate in mental health therapy
because she did not believe that she had any mental illness.
[9] Following the hearing, the trial court issued an order, which—among other
issues that are not before us—modified Mother’s parenting time,
to reflect that all of Mother’s supervised parenting time shall be contingent upon Mother complying with the Court ordered mental health treatment. However, Father does not have the right to discontinue the parenting time simply because he believes that Mother is not complian[t] with the Court ordered counseling. Only the Court can make that determination, and any decision by Father to discontinue Mother’s parenting time can result in him being found in contempt.
Appellant’s App. p. 20. Mother was ordered to attend six mental health
treatment sessions over the course of six months. Id. On November 30, 2015,
Court of Appeals of Indiana | Memorandum Decision 29A02-1602-DR-258 | August 11, 2016 Page 4 of 7 Mother filed a motion to correct error, which the trial court denied on January
11, 2016. Mother now appeals.
Discussion and Decision [10] Mother argues that the trial court erred by making her continued supervised
visitation contingent on her engaging in mental health treatment.
[11] Restriction or denial of parenting time is governed by Indiana Code section 31-
17-4-2, which provides as follows:
The court may modify an order granting or denying parenting time rights whenever modification would serve the best interests of the child. However, the court shall not restrict a parent’s parenting time rights unless the court finds that the parenting time might endanger the child’s physical health or significantly impair the child’s emotional development.
Indiana recognizes that the right of a noncustodial parent to visit his or her
children is a “precious privilege.” Duncan v. Duncan, 843 N.E.2d 966, 969 (Ind.
Ct. App. 2006). Even though the statute uses the word “might,” courts have
long held that a noncustodial parent’s right to visit his or her child is important
enough that it should not be restricted unless it “would” endanger the child’s
physical health or emotional development. See Stewart v. Stewart, 521 N.E.2d
956, 960 n.3 (Ind. Ct. App. 1988). A party who seeks to restrict a parent’s
visitation rights bears the burden of presenting evidence justifying such a
restriction. Farrell v.
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MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Aug 11 2016, 8:39 am this Memorandum Decision shall not be 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 Shana D. Tesnar Kathleen M. Meek Adler Tesnar & Whalin Bowen & Associates, LLC Noblesville, Indiana Carmel, Indiana
IN THE COURT OF APPEALS OF INDIANA
K.M., August 11, 2016 Appellant-Respondent, Court of Appeals Case No. 29A02-1602-DR-258 v. Appeal from the Hamilton Circuit Court A.M., The Honorable Paul A. Felix, Appellee-Petitioner Judge Trial Court Cause No. 29C01-1403-DR-2047
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 29A02-1602-DR-258 | August 11, 2016 Page 1 of 7 [1] K.M. (Mother) appeals the order of the trial court, which modified her
parenting time to be contingent on her participation in mental health treatment.
Finding that the trial court made no error by modifying Mother’s parenting
time, we affirm.
Facts [2] Mother and A.M. (Father) were married on April 10, 1999, and had four
children together. In March 2014, Father filed a petition to dissolve the
marriage.
[3] The trial court ordered an evaluation of each parent by a custody evaluator, Dr.
Louis Pilipis. After completing the evaluation, Dr. Pilipis found that both
parents had mental health issues, but that Mother’s “mental health issues are
severe and chronic in nature and require longstanding treatment.” Appellee’s
App. p. 216. Dr. Pilipis found a 2013 incident particularly troubling, where
Mother stabbed Father in the back with a pair of scissors. Dr. Pilipis also found
that Mother frequently goes into a state of rage, and worried that if Father were
not around to bear the brunt of this rage, it might be directed toward the
children. Dr. Pilipis listened to several recordings that Father made of Mother’s
behavior. In one recording, Mother tells Father that one of their children “got
his ass whooped” for watching television instead of cleaning. Id. at 195.
Mother went on to refer to this child, who is developmentally disabled, as an
“ungrateful brat,” “selfish,” a “leech,” and a “resource drain.” Id. Throughout
this tirade, Mother threatened the child with further physical punishment.
Court of Appeals of Indiana | Memorandum Decision 29A02-1602-DR-258 | August 11, 2016 Page 2 of 7 [4] After her evaluation, Dr. Pilipis recommended that Father be given physical
custody of the children and that Mother “be court ordered to participate in
mental health treatment, which should be frequent (i.e., at least twice a month)
and ongoing (i.e., for at least 6 months). Parenting time should be contingent
upon [Mother] adhering to court ordered treatment recommendations.” Id. at
219.
[5] The parties mediated a dissolution decree, and a final settlement agreement (the
Agreement) was approved by the trial court on November 5, 2014. As part of
this Agreement, the parties agreed that Father would have sole legal and
physical custody of the children, and that Mother would have three hours of
supervised parenting time per week, subject to further orders by the trial court.
[6] On February 11, 2015, Father petitioned the trial court to modify the parenting
time arrangement. He argued that several alleged incidents that had taken
place since the settlement agreement indicated that Mother’s untreated mental
illness was resulting in harm to the children. He requested that the trial court
modify the Agreement to adopt the recommendation of Dr. Pilipis that any
future supervised visitation by Mother be contingent on her participating in
psychiatric treatment. Appellant’s App. p. 45.
[7] On April 2, 2015, Father filed an addendum to this petition, which informed
the trial court of the following. Mother had been using the Mending Fences
agency for her supervised visitations. On February 24, 2015, Mother attempted
to bring a concealed knife into the facility. When the staff questioned her, she
Court of Appeals of Indiana | Memorandum Decision 29A02-1602-DR-258 | August 11, 2016 Page 3 of 7 simply took the knife out to her car. Because this violated Mending Fences’
policy on not bringing weapons to supervised parenting time, Mending Fences
refused to conduct further supervised parenting time for Mother.
[8] The trial court held a hearing on the matter on October 27, 2015. At the
hearing, Dr. Pilipis reiterated her recommendation that Mother’s parenting
time be contingent on her engaging in intensive mental health treatment. She
expressed concern over the concealed knife incident, given that Mother had
previously stabbed Father. Father testified that Mother had not attempted to
contact him or the children since her visitation ended in February 2015. At the
hearing, Mother said she did not want to participate in mental health therapy
because she did not believe that she had any mental illness.
[9] Following the hearing, the trial court issued an order, which—among other
issues that are not before us—modified Mother’s parenting time,
to reflect that all of Mother’s supervised parenting time shall be contingent upon Mother complying with the Court ordered mental health treatment. However, Father does not have the right to discontinue the parenting time simply because he believes that Mother is not complian[t] with the Court ordered counseling. Only the Court can make that determination, and any decision by Father to discontinue Mother’s parenting time can result in him being found in contempt.
Appellant’s App. p. 20. Mother was ordered to attend six mental health
treatment sessions over the course of six months. Id. On November 30, 2015,
Court of Appeals of Indiana | Memorandum Decision 29A02-1602-DR-258 | August 11, 2016 Page 4 of 7 Mother filed a motion to correct error, which the trial court denied on January
11, 2016. Mother now appeals.
Discussion and Decision [10] Mother argues that the trial court erred by making her continued supervised
visitation contingent on her engaging in mental health treatment.
[11] Restriction or denial of parenting time is governed by Indiana Code section 31-
17-4-2, which provides as follows:
The court may modify an order granting or denying parenting time rights whenever modification would serve the best interests of the child. However, the court shall not restrict a parent’s parenting time rights unless the court finds that the parenting time might endanger the child’s physical health or significantly impair the child’s emotional development.
Indiana recognizes that the right of a noncustodial parent to visit his or her
children is a “precious privilege.” Duncan v. Duncan, 843 N.E.2d 966, 969 (Ind.
Ct. App. 2006). Even though the statute uses the word “might,” courts have
long held that a noncustodial parent’s right to visit his or her child is important
enough that it should not be restricted unless it “would” endanger the child’s
physical health or emotional development. See Stewart v. Stewart, 521 N.E.2d
956, 960 n.3 (Ind. Ct. App. 1988). A party who seeks to restrict a parent’s
visitation rights bears the burden of presenting evidence justifying such a
restriction. Farrell v. Littell, 790 N.E.2d 612, 616 (Ind. Ct. App. 2003).
Court of Appeals of Indiana | Memorandum Decision 29A02-1602-DR-258 | August 11, 2016 Page 5 of 7 [12] Mother points to Farrell for the proposition that the trial court was required to
make specific findings of fact before modifying the noncustodial parent’s
parenting time. However, we have previously distinguished that language to
only apply where “no parenting time was granted to the noncustodial parent,”
not where “parenting time was ordered to be supervised and within certain
parameters designed to protect the best interests of” the child. J.M. v. N.M., 844
N.E.2d 590, 599-600 (Ind. Ct. App. 2006) (emphasis original). Therefore, since
the trial court in this case explicitly refused to terminate Mother’s parenting
time, the trial court was not required to make specific findings of fact.
[13] Generally speaking, parenting time decisions are committed to the sound
discretion of the trial court. In re B.J.N., 19 N.E.3d 765, 769 (Ind. Ct. App.
2014). A trial court errs when its decision is clearly against the logic and effect
of the facts and circumstances before the court or if the court has misinterpreted
the law. Id. Where, as here, the trial court did not enter specific findings of
fact, a general judgment standard applies. Id. We may affirm a general
judgment on any theory supported by the evidence at trial. Id.
[14] We find ample evidence to support the judgment of the trial court. The trial
court was presented with the work of the custody evaluator, Dr. Pilipis, who
confirmed that Mother was suffering from borderline personality disorder and
bipolar disorder. Mother has been recorded being physically and verbally
abusive to the children. She has previously stabbed Father, and was caught
bringing a knife to a supervised visitation with her children. All of this evidence
would support a finding by the trial court that, absent mental health treatment,
Court of Appeals of Indiana | Memorandum Decision 29A02-1602-DR-258 | August 11, 2016 Page 6 of 7 parenting time would endanger the children’s physical health or significantly
impair the child’s emotional development.
[15] The trial court’s decision is abundantly justified by the facts and circumstances
before it—it ordered Mother, who has been diagnosed with mental illness and
has a history of family violence, to attend six mental health therapy sessions in
order to continue supervised visitations. The trial court made no error in this
regard.
[16] The judgment of the trial court is affirmed.
Vaidik, C.J., and Najam, J., concur.
Court of Appeals of Indiana | Memorandum Decision 29A02-1602-DR-258 | August 11, 2016 Page 7 of 7