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
