S.R. v. P.C.

634 N.E.2d 786, 1994 Ind. App. LEXIS 590
CourtIndiana Court of Appeals
DecidedMay 25, 1994
DocketNo. 49A05-9305-JV-174
StatusPublished
Cited by3 cases

This text of 634 N.E.2d 786 (S.R. v. P.C.) 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
S.R. v. P.C., 634 N.E.2d 786, 1994 Ind. App. LEXIS 590 (Ind. Ct. App. 1994).

Opinion

SHARPNACK, Chief Judge.

S.R. appeals the trial court's order of December 22, 1992, in S.R.'s action against P.C. to determine the paternity of S.R.'s daughter ARR. and to resolve issues of custody, visitation, and child support, among other matters. We affirm in part and reverse in part.

S.R. presents three issues for our review, which we restate as follows:

1. whether the court erred in granting S.R. supervised visitation only;
2. whether the court abused its discretion in denying S.R.'s requests for the appointment of a guardian ad litem for ARR. and for the completion of a homestudy; and
3. whether the standard for modification of custody in Indiana's paternity statute violates the equal protection clauses of the constitutions of Indiana and United States.

Facts

ARR. was born to S.R. on November 11, 1987. Paternity was not established at that time, and A.R.R. remained in the custody of her mother. In the spring of 1991, SR. discovered that A.R.R. had been molested by J.R., S.R.'s brother. In August, 1991, A.R.R. told P.C.'s wife, V.C., about the molestations. V.C. reported the molestation to the police, and consequently charges were filed against J.R. J.R. pleaded guilty, and S.R. was later charged with failure to report child abuse, to which she pleaded guilty on December 30, 1991.

S.R. filed a paternity action against P.C. on August 19, 1991. P.C. filed his response on September 16, 1991, acknowledging paternity of ARR. On September 19, 1991, the parties filed an agreed entry providing that P.C. would have custody pendente lite and that S.R. would have reasonable visitation.

In January, 1992, the court granted P.C.'s petition for a visitation review by the Domestic Relations Counseling Bureau. On February 10, 1992, S.R. moved for a hearing to show cause, alleging that P.C. was in contempt by denying her reasonable visitation. On April 9, 1992, after a hearing, the court found that P.C. was not in contempt and that his failure to adhere to the agreed entry had been justified. The court ordered that S.R. was to have supervised visitation with A.R.R. pending S.R.'s participation in parenting classes and counseling. P.C. filed an amended counter-petition to establish paternity on April 14, 1992, requesting permanent custody of A.R.R. On April 30, 1992, S.R. petitioned the court to appoint a guardian ad litem for ARR. On May 14, 1992, the court denied S.R.'s request.

Further hearings were held in the matter of A.R.R.'s paternity and related matters on August 24, 1992, October 2, 1992, and December 14, 1992. The court's final decision, entered December 22, 1992, awarded custody to P.C. and ordered that supervised visitation continue for S.R. subject to the discretion of the court-appointed family therapist.

I

S.R. argues that the court erred in granting S.R. supervised visitation only. Specifically, S.R. argues (1) that the court's final order is unsupported by probative evidence because the court failed to make findings of fact or to express what factors it considered, and (2) that the court erred in delegating discretion regarding supervision of S.R.'s visitation with A.R.R. to the Family Connection Center and its employee, therapist Joanne Bates.

S.R. acknowledges that decisions involving visitation rights are committed to the sound discretion of the trial court and will be reversed on appeal only upon a showing of an abuse of discretion. Matter of Paternity of Joe (1985), Ind.App., 486 N.E.2d 1052, 1055.

"An abuse of discretion exists, as a general rule, where the trial court's decision is clearly against the logic and effect of the facts and circumstances before the trial court or the reasonable, probable and actual deductions to be drawn therefrom. K.B. v. S.B. (1981), Ind.App., 415 N.E.2d 749. Put differently, this court will find no abuse of discretion if there is substantial probative evidence to support the conclu[789]*789sion of the trial court. Griffith v. Webb (1984), Ind.App., 464 N.E.2d 384. ... The trial court's discretion is limited in a case such as the present case, however, to the extent that it must be exercised in furtherance of the child's best interests."

Matter of Joe, 486 N.E.2d at 1055.

As to S.R.'s first contention, the record shows that the trial court refused S.R.'s motion for findings of fact and conclusions of law because it was not filed until the commencement of court proceedings on December 14, 1992, the fourth and final hearing in the case. Under Ind.Trial Rule 52(A), the trial court may make findings of fact upon its own motion or "the written request of any party filed with the court prior to the admission of evidence." TR. 52(A). Because evidence had been admitted prior to S.R.'s motion, the court acted within its discretion in denying the motion.

SR. contends collaterally that the court failed to state explicitly the factors it considered in making its visitation determination. SR. alleges that the court was required to consider the factors enumerated in Ind.Code § 31-6-6.1-11 for use in determining custody. S.R.'s argument is without merit. The relevant statutory provision is 1.0. § 81-6-6.1-12, which provides general standards for the grant, denial, or modification of visitation rights for a noncustodial parent. The statute contains no requirement that the court set forth in its decision the factors that influenced its determination.1

As to S.R.'s second contention, after an examination of the applicable statutory provisions, we find that the trial court erred in delegating discretion over the frequency and supervision status of S.R.'s visitation with A.R.R. to the Family Connection Center and Joanne Bates.

The court's order reads in pertinent part as follows:

"[Vlisitation at Family Connection Center will continue with the same frequency and duration that is now occurring. This Visitation is to be fully supervised until Family Connection Center feels mother is no longer acting against Family Connection Center's rules. Visitation is to be increased upon therapist's recommendations, therapist being, Joanne Bates."

Record, p. 93.

Under I.C. § 31-6-6.1-10(a), in determining issues of support, custody, and visitation, the court may order a caseworker to prepare a report to assist its determination. Thus, it was appropriate for the trial court to seek the recommendations of the Family Connection Center and Joanne Bates in determining visitation.

However, I.C. § 31-6-6.1-12(b) provides that "[the court may modify an order granting or denying visitation rights whenever modification would serve the best interests of the child." I.C. § 31-6-6.1-12(b) (emphasis added). In other words, a modification of visitation may not be granted absent a determination by the court that the modification would serve the best interests of the child.

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Related

In Re Paternity of VAMC
768 N.E.2d 990 (Indiana Court of Appeals, 2002)
Moden v. Corr
768 N.E.2d 990 (Indiana Court of Appeals, 2002)
Matter of Paternity of ARR
634 N.E.2d 786 (Indiana Court of Appeals, 1994)

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Bluebook (online)
634 N.E.2d 786, 1994 Ind. App. LEXIS 590, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sr-v-pc-indctapp-1994.