MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                          FILED
regarded as precedent or cited before any                                 Mar 15 2018, 9:03 am
court except for the purpose of establishing
                                                                               CLERK
the defense of res judicata, collateral                                    Indiana Supreme Court
                                                                              Court of Appeals
estoppel, or the law of the case.                                               and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
John S. Capper, IV                                       Kyle D. Gobel
Capper Tulley & Reimondo                                 Collier Gobel Homann, LLC
Crawfordsville, Indiana                                  Crawfordsville, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Andrew Haniford,                                         March 15, 2018
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         54A01-1709-JP-2161
        v.                                               Appeal from the Montgomery
                                                         Circuit Court
Chelsy Lawrence,                                         The Honorable Harry A. Siamas,
Appellee-Respondent.                                     Judge
                                                         Trial Court Cause No.
                                                         54C01-1507-JP-153



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 54A01-1709-JP-2161 | March 15, 2018              Page 1 of 12
[1]   Andrew Haniford (“Father”) appeals the trial court’s denial of his petition to

      modify child custody. Father raises one issue which we revise and restate as

      whether the trial court erred in denying his petition to modify custody. We

      affirm.


                                      Facts and Procedural History

[2]   On August 20, 2015, the court approved an agreed entry finding that Chelsy

      Lawrence (“Mother”) and Father were the biological parents of M.H., born on

      January 15, 2015, that Mother would have sole legal custody of M.H., and that

      Father would have parenting time pursuant to the Indiana Parenting Time

      Guidelines.


[3]   On October 12, 2016, the Department of Child Services (“DCS”) filed a verified

      petition in the Montgomery Circuit Court alleging M.H. to be a child in need of

      services (“CHINS”) and that Mother was using heroin while in a sole caregiver

      role to M.H.. The Petition alleged that Mother admitted on September 20,

      2016, to previous drug use, she refused a drug screen, law enforcement searched

      the home on October 11, 2016, and found paraphernalia, including a used

      syringe in a drawer easily accessible to a toddler, M.H. had been removed from

      the home with the assistance of law enforcement, and DCS had not located

      Father.


[4]   On March 24, 2017, Father filed a verified petition to modify custody in the

      Montgomery Circuit Court based upon Mother’s lifestyle and arrest, the

      CHINS action, and the placement of M.H. with Father.


      Court of Appeals of Indiana | Memorandum Decision 54A01-1709-JP-2161 | March 15, 2018   Page 2 of 12
[5]   On August 9, 2017, the court entered an Order Approving Permanency Plan in

      the CHINS action, finding that it was most appropriate and consistent with the

      best interests of M.H. to be returned to or continued in the custodial care of

      Mother.


[6]   The same day, the court held a hearing on Father’s petition.1 Danielle Jeanette

      Long, a registered nurse and Father’s half-sister, testified that M.H. was placed

      in her care on October 25, 2016 and was placed with Father on February 7,

      2017. She stated that she had concerns with Mother’s ability to care for him

      including Mother’s tendency to not pay attention to M.H. after an hour or two

      of visitation and her inability to handle M.H. during his meltdowns. She

      testified that she had concerns about Mother’s care, that there were diaper rash

      issues when Mother had unsupervised visits, and that M.H. “would come home

      with severe flaming red diaper rash.” Transcript Volume II at 9. She described

      Father as extremely interactive with M.H. and stated that M.H. had adjusted

      very well to living with Father, his fiancée, and the fiancée’s three children. On

      cross-examination, Long indicated that Father did not have contact with M.H.

      from his birth to October 2017, that Father has three children older than M.H.,

      and that one of those children was in the care of Father’s sister.


[7]   Mandy Fruits, Father’s fiancée, testified that she began her relationship with

      Father in November 2015, she has three children, Father was a “very good




      1
       Judge Harry Siamas signed the August 9, 2017 Order Approving Permanency Plan and also conducted the
      hearing on Father’s petition to modify custody.

      Court of Appeals of Indiana | Memorandum Decision 54A01-1709-JP-2161 | March 15, 2018    Page 3 of 12
      dad,” M.H. adjusted to her children, and M.H. loved Father the “very first

      moment he saw him.” Id. at 21. She testified that M.H. would come home

      with severe diaper rash following visitation with Mother, that Father had a

      structure in the house regarding bedtimes, eating, and naptime and that M.H.

      adjusted well to the structure, and they moved to a four-bedroom house on

      three acres. On cross-examination, Fruits testified that M.H. was not in

      Father’s home from November 2015 to November 2016 and that there were

      times when Father’s older children visited the house resulting in seven children

      being there.


[8]   Father testified that he did not receive visitation with M.H. after the August

      2015 order because Mother refused visitation, that he began visiting with M.H.

      when DCS became involved, and that he completed everything DCS asked him

      to complete. He testified that M.H. was placed with him in February 2017 and

      that it had been only a few days since M.H. was returned to Mother’s care

      through the CHINS action. He stated that he has visitation with one of his

      other children and pays forty dollars a week in support for that child, and that

      M.H. has “done really good with” the other children in the house. Id. at 33.


[9]   On cross-examination, Father clarified that he obtained custody of one of his

      other children and that child lives with Father’s sister. He responded that his

      other two children were in the care of their mothers but that he had parenting

      time with the three children. He testified that his relationship with Mother fell

      apart after M.H.’s birth and that he saw M.H. a handful of times between his

      birth in January 2015 and DCS becoming involved in October 2016. When

      Court of Appeals of Indiana | Memorandum Decision 54A01-1709-JP-2161 | March 15, 2018   Page 4 of 12
       asked if it was accurate to say that he saw M.H. less than ten times in that “two

       year or so stretch,” Father answered: “It was probably about ten times.” Id. at

       39.


[10]   Mother testified that she did not try to keep M.H. from Father following M.H.’s

       birth and that Father saw M.H. about three times prior to the end of their

       relationship in April 2015. She stated that she had no contact with Father

       between December 31, 2015, and October 2016, and that she lived in the same

       place and had the same phone number during that time. She testified that she

       reached out to Father to see if he could help with diapers or Tylenol, “but it was

       always no and it was never how’s [M.H.] doing or can I see him or anything it

       was just that was the extent of the conversation after he said no.” Id. at 45. She

       testified that she had concerns with Father’s parenting time including that

       M.H.’s sleep schedule was off, he had quit taking naps and was up until

       midnight, M.H. told her that he would eat “always dry cereal or a Lunchables

       or it’s never a meal,” and that his fingernails and toenails always had dirt caked

       underneath them. Id. at 56. She also testified that M.H. had severe diaper rash

       with Father. She acknowledged that M.H. was injured in her care in August

       2016 when she was throwing him in the air and catching him and he just

       slipped through her hands and fell onto the floor.


[11]   According to Mother’s testimony, she was twenty-nine years old and her first

       period of addiction was from age eighteen to twenty-three and that she was

       mostly addicted to pain medicine. She went to prison when she was twenty-

       three years old, was released in April 2013, maintained a period of sobriety, and

       Court of Appeals of Indiana | Memorandum Decision 54A01-1709-JP-2161 | March 15, 2018   Page 5 of 12
       relapsed in September 2016 following a job loss and her car breaking down.

       She went to detox the last week of September and did not use drugs for a period

       of time, relapsed, and was arrested on October 11, 2016, for possession of a

       syringe. She was released from jail on November 12, 2016, and immediately

       began engaging in services through DCS. She last used controlled substances

       on December 7, 2016, she completed an inpatient rehab, continued with

       treatment following rehab, started relapse prevention and individual counseling,

       and maintained employment. Mother also testified that she received drug

       screens with DCS and her last positive screen was on November 29, 2016.


[12]   Mother’s mother, Dora Hardacker, testified that Mother, Mother’s other child,

       and M.H. live with her. She testified that she called DCS in October 2016

       because she felt Mother had relapsed and that if there is an issue she is

       straightforward. She stated that Mother can stay in her home as long as she

       needs to and she has plenty of room.


[13]   The court took judicial notice of the CHINS action and its records and

       pleadings. A monthly progress report dated May 30, 2017, for Mother from

       Wabash Valley Alliance states: “When scheduled for therapy, [Mother] is an

       active participant in treatment, appears highly motivated to complete all DCS

       requirements and maintain sobriety in order to be reunited with her son. She is

       an active participant in relapse prevention group showing good insight into her

       sobriety and recovery.” Appellee’s Appendix Volume 2 at 28. A document

       from Wabash Valley Alliance dated May 31, 2017, indicates under the heading

       “Clinical Assessment” that Mother “does a good job in engaging [M.H.]. She

       Court of Appeals of Indiana | Memorandum Decision 54A01-1709-JP-2161 | March 15, 2018   Page 6 of 12
demonstrates good parenting skills with him.” Id. at 55. A monthly progress

report signed June 1, 2017, states:


        Presenting Issues: [Mother] continues to go through the process
        of having supervised visits with [M.H.]. She has had to
        demonstrate her parenting skills in situations where [M.H.]
        required some redirection or discipline. [Mother] has also had to
        show that she can care for [M.H.’s] well-being.

        Family Functional Strengths: [Mother] continues to demonstrate
        good parenting skills. She provides food for [M.H.] at the
        beginning of the visits, as he does not tend to eat breakfast before
        the visit. She engages him in age-appropriate play and will play
        age-appropriate cartoons on the TV. [Mother] has occasionally
        had to use discipline with [M.H.] by placing him in time out for
        no longer than 2 minutes. She makes sure that she talks to him
        after his time out in reminding him to listen or to not tell her no,
        but she also makes sure to cuddle him and reassure him of her
        affection after the time out is over. [Mother] has demonstrated
        that she can care for his well-being [and] is determined to show
        that she is a safe and appropriate caregiver for her children.

Id. at 37-38. A document titled Child and Family Team Meeting Notes dated

July 5, 2017, states that M.H. was “conditionally safe at placement with”

Father and that current safety concerns included: “[s]till reporting that ‘daddy

does it’ with injuries,” concerns about bedtime and M.H. going to bed late,

“[s]till has a bit of a rash, possible allergy to Desitin,” and “[s]tarting to say ‘oh

shit,’ ‘god’, ‘I’m gonna slap you’ – discussed concerns about other children

saying these things.” Id. at 80. The document also states: Mother “is great at

engaging in creative, imaginative play with [M.H.]. She is passionate about her

role as a mother. [Mother] continues to push forward through barriers.” Id. at


Court of Appeals of Indiana | Memorandum Decision 54A01-1709-JP-2161 | March 15, 2018   Page 7 of 12
       81. A document titled Child and Family Team Meeting Notes dated July 7,

       2017, states that Father and his fiancée had addressed safety concerns in a

       timely manner and Father had completed the home-based services that DCS

       requested.


[14]   On August 18, 2017, the trial court denied Father’s petition to modify custody.


                                                    Discussion

[15]   The issue is whether the trial court erred in denying Father’s petition to modify

       custody. Generally, we review custody modifications for an abuse of discretion

       and have a “preference for granting latitude and deference to our trial judges in

       family law matters.” Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002). “We set

       aside judgments only when they are clearly erroneous, and will not substitute

       our own judgment if any evidence or legitimate inferences support the trial

       court’s judgment.” Id. The Indiana Supreme Court explained the reason for

       this deference in Kirk:


               While we are not able to say the trial judge could not have found
               otherwise than he did upon the evidence introduced below, this
               Court as a court of review has heretofore held by a long line of
               decisions that we are in a poor position to look at a cold
               transcript of the record, and conclude that the trial judge, who
               saw the witnesses, observed their demeanor, and scrutinized their
               testimony as it came from the witness stand, did not properly
               understand the significance of the evidence, or that he should
               have found its preponderance or the inferences therefrom to be
               different from what he did.




       Court of Appeals of Indiana | Memorandum Decision 54A01-1709-JP-2161 | March 15, 2018   Page 8 of 12
       Id. (quoting Brickley v. Brickley, 247 Ind. 201, 204, 210 N.E.2d 850, 852 (1965)).

       Therefore, “[o]n appeal it is not enough that the evidence might support some

       other conclusion, but it must positively require the conclusion contended for by

       appellant before there is a basis for reversal.” Id. “The party seeking to modify

       custody bears the burden of demonstrating the existing custody should be

       altered.” Steele-Giri v. Steele, 51 N.E.3d 119, 124 (Ind. 2016).


[16]   Where, as here, the trial court did not make special findings, we review the trial

       court’s decision as a general judgment and, without reweighing the evidence or

       considering witness credibility, affirm it if sustainable upon any theory

       consistent with the evidence. Walker v. Nelson, 911 N.E.2d 124, 127 (Ind. Ct.

       App. 2009) (citing Baxendale v. Raich, 878 N.E.2d 1252, 1257 (Ind. 2008)).

       Judgments in custody matters generally turn on essential factual determinations

       and will be set aside only when they are clearly erroneous. Baxendale, 878

       N.E.2d at 1257. We will not substitute our own judgment if any evidence or

       legitimate inferences support the trial court’s judgment. Id. at 1257-1258.


[17]   The child custody modification statute provides that “[t]he court may not

       modify a child custody order unless: (1) 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 § 31-14-13-2] . . . .” Ind. Code §

       31-14-13-6. Ind. Code § 31-14-13-2 lists the following factors:


               (1) The age and sex of the child.

               (2) The wishes of the child’s parents.


       Court of Appeals of Indiana | Memorandum Decision 54A01-1709-JP-2161 | March 15, 2018   Page 9 of 12
               (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 parents;

                        (B) the child’s siblings; and

                        (C) any other person who may significantly affect the
                        child’s best interest.

               (5) The child’s adjustment to home, school, and community.

               (6) The mental and physical health of all individuals involved.

               (7) Evidence of a pattern of domestic or family violence by either
               parent.

[18]   Father argues that M.H.’s close bond with him and his family, M.H.’s

       adjustment to living with him, and Mother’s substance abuse addiction are

       substantial changes to the initial paternity custody determination factors which

       warrant a modification of custody. He asserts that the best interests of M.H.

       would be served by modifying custody because he and his family have

       committed to providing M.H. with a stable home and care, while Mother has

       struggled with parenting skills and criminal behaviors.


[19]   Mother argues that the court did not abuse its discretion and points out that

       Father had no or limited contact with M.H. for periods of time and has three

       older children of whom he does not have custody. She acknowledges that her

       substance abuse and arrest were significant causes of concern, but asserts she

       took all necessary steps to address her substance abuse and had been sober more



       Court of Appeals of Indiana | Memorandum Decision 54A01-1709-JP-2161 | March 15, 2018   Page 10 of 12
       than seven months at the time of the modification hearing. She also points out

       that the CHINS court placed M.H. back in her care.


[20]   The record reveals that, while Long testified that she was concerned with

       M.H.’s diaper rash issues when Mother had unsupervised visits, Mother

       testified that M.H. had severe diaper rash with Father. While a CHINS action

       was initiated, Father testified that M.H. was returned to Mother by the court

       through the CHINS action. Indeed, in its Order Approving Permanency Plan

       on August 9, 2017, the court found that it was most appropriate and consistent

       with the best interests of M.H. to be returned to or continued in the custodial

       care of Mother. Mother testified that she last used controlled substances on

       December 7, 2016, she completed an inpatient rehab, continued with treatment

       following rehab, started relapse prevention and individual counseling, and

       maintained employment. The court heard Mother’s testimony regarding her

       concerns with Father’s parenting. The court also heard the testimony of

       Mother’s mother and was able to review the documents in the CHINS case.

       We conclude that Father asks that we reweigh the evidence and judge the

       credibility of the witnesses, which we cannot do. See Fields v. Fields, 749 N.E.2d

       100, 108 (Ind. Ct. App. 2001), trans. denied. We will not substitute our own

       judgment if any evidence or legitimate inferences support the trial court’s

       judgment. Baxendale, 878 N.E.2d at 1257-1258. We cannot say that the trial

       court’s judgment was clearly erroneous.




       Court of Appeals of Indiana | Memorandum Decision 54A01-1709-JP-2161 | March 15, 2018   Page 11 of 12
                                                   Conclusion

[21]   For the foregoing reasons, we affirm the trial court’s denial of Father’s petition

       to modify the custody of M.H.


[22]   Affirmed.


       Baker, J., and Riley, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 54A01-1709-JP-2161 | March 15, 2018   Page 12 of 12
