S.S. v. C.D. (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: May 25, 2017
• Docket: 75A03-1612-DR-2887
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be May 25 2017, 10:04 am regarded as precedent or cited before any court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE Timothy J. Lemon Lizbeth W. Pease Knox, Indiana Nichols & Wallsmith Knox, Indiana

IN THE COURT OF APPEALS OF INDIANA

S. S., May 25, 2017 Appellant-Respondent, Court of Appeals Case No. 75A03-1612-DR-2887 v. Appeal from the Starke Circuit Court C. D., The Honorable Kim Hall, Judge Appellee-Petitioner. Trial Court Cause No. 75C01-1210-DR-109

Bailey, Judge.

Court of Appeals of Indiana | Memorandum Decision 75A03-1612-DR-2887 | May 25, 2017 Page 1 of 7 Case Summary [1] S.S. (“Mother”) appeals an order granting the custody modification petition of

C.D. (“Father”) as to two of their three children. She presents the sole issue of

whether the custody modification order lacks sufficient evidentiary support.

We affirm.

Facts and Procedural History [2] The parties were married on August 9, 1999, and separated on March 20, 2012.

They had three children, M.D. (born in 1999), A.D. (born in 2001), and L.D.

(born in 2009). The marriage was dissolved on November 19, 2013. The

parents shared legal custody of all three children. Father was awarded the

physical custody of M.D. and Mother was awarded the physical custody of the

two younger children. After Father experienced a house fire and housing

insecurity, M.D.’s custody was changed to Mother.

[3] In 2016, when Mother had physical custody of all the children, M.D. wrote a

letter to the trial court expressing her desire to return to Father’s custody.

Around the same time, A.D. contacted Father via text to report that L.D. had

been struck in the face by his maternal grandfather.1 Both M.D. and A.D. sent

Father photo images showing L.D.’s black eye and swollen lip.

1 The Department of Child Services investigated and concluded that L.D.’s injuries were self-inflicted.

Court of Appeals of Indiana | Memorandum Decision 75A03-1612-DR-2887 | May 25, 2017 Page 2 of 7 [4] On September 20, 2016, Father filed a petition to modify custody of M.D. and

L.D.2 In the petition, Father stated that circumstances had changed

substantially. He averred that M.D. wished to return to his custody. He also

averred that L.D. had been hit in the face by an “unknown” person, resulting in

a black eye. (App. at 10.) Father alleged that L.D. had appeared for parenting

time with bruises “on a number of occasions.” (App. at 10.) Finally, Father

asserted that L.D. is a child with behavioral issues but Mother refused testing by

a specialist. Father requested, alternatively, physical custody of L.D. or an

order that Mother be required to obtain further evaluation for L.D.

[5] Hearings were conducted on November 1 and November 9, 2016. The trial

court also conducted an in-camera interview with M.D. On November 30,

2016, the trial court granted Father’s petition to modify physical custody of

M.D. and L.D. to him. Mother now appeals.

Discussion and Decision [6] Indiana Code Section 31-17-2-21 provides that a trial court “may not modify a

child custody order unless: (1) the 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 [Ind. Code Section 31-17-2-8] …” Indiana Code

Section 31-17-2-8 sets forth relevant factors that must be considered, including:

2 By all indications, A.D. wished to remain with Mother and Father did not oppose this.

Court of Appeals of Indiana | Memorandum Decision 75A03-1612-DR-2887 | May 25, 2017 Page 3 of 7 (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.

(8) Evidence that the child has been cared for by a de facto custodian …

Court of Appeals of Indiana | Memorandum Decision 75A03-1612-DR-2887 | May 25, 2017 Page 4 of 7 The party seeking to modify custody bears the burden of demonstrating that the

existing custody order should be altered. Steele-Giri v. Steele, 51 N.E.3d 119, 124

(Ind. 2016).

[7] On appeal from a family law decision, we accord great deference to the trial

court judge, who was in the position to see witnesses, observe their demeanor,

and scrutinize their testimony. Id. We do not reverse a decision because the

evidence might support some other conclusion; rather, the evidence must

positively require the conclusion contended for by the appellant before there is a

basis for reversal. Id. Appellate judges will not reweigh the evidence nor

reassess witness credibility, and we will view the evidence most favorably to the

judgment. Id.

[8] The evidence most favorable to the judgment is that M.D.’s and Mother’s

relationship had deteriorated to the point of a physical altercation. When

police temporarily removed M.D. from Mother’s home, she was taken to an

aunt’s home because Mother advised the police that Father did not possess

parental rights. M.D. was permitted to call Father only after police were

summoned to the aunt’s home.

[9] Father and the paternal grandmother each testified that L.D. had often

appeared for parenting time with bruises. The grandmother testified that she

had seen a handprint bruise. Father recalled seeing bruising on one arm from

the wrist to the elbow and other bruises on L.D.’s hips and thigh. He described

one bruise as a “baseball size.” (Tr. Vol. II at 19.) Father testified that he

Court of Appeals of Indiana | Memorandum Decision 75A03-1612-DR-2887 | May 25, 2017 Page 5 of 7 confronted Mother about corporal punishment and she replied that a paddle

was “the only thing that works.” (Tr. Vol. II at 22.) Per Father’s testimony, he

had encouraged Mother to obtain testing of L.D. “for behavioral issues,” but

Mother had not agreed. (Tr. Vol. II at 25.) She had obtained prescriptions for

L.D., but stopped and started his medication.

[10] After L.D. was barred from riding the school bus,3 Father had urged Mother to

investigate special education options for L.D. Mother initially disagreed with

that plan. However, after school personnel urged the use of an Individualized

Educational Plan, Mother agreed but did not inform Father of the meeting. On

at least two occasions, Mother removed Father’s information from the school

records. She did not consult Father as to medical appointments and did not

inform him when M.D. was involved in a vehicle accident.

[11] Mother concedes that there had been a change in the relationship between

herself and M.D. However, she argues that M.D.’s expressed wishes provide

an inadequate basis for a change of custody. She also notes that there was

evidence of a lack of parental communication and cooperation, but insists that

her shortcomings in this regard did not amount to egregious behavior. Mother

requests a reweighing of the evidence, something we will not do. Steele-Giri, 51

N.E.3d at 124.

3 This was apparently due to L.D. banging his head on the bus windows when he was upset.

Court of Appeals of Indiana | Memorandum Decision 75A03-1612-DR-2887 | May 25, 2017 Page 6 of 7 [12] The evidentiary record discloses evidence of a change in one or more statutory

circumstances that a trial court is to consider in a custody modification

proceeding. Also, there is evidence to support the trial court’s determination

that a change of custody is in the best interests of M.D. and L.D.

[13] Affirmed.

Vaidik, C.J., and Robb, J., concur.

Court of Appeals of Indiana | Memorandum Decision 75A03-1612-DR-2887 | May 25, 2017 Page 7 of 7