MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                  FILED
regarded as precedent or cited before any                         Apr 17 2017, 5:44 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
Jared Michel Thomas                                       Patrick A. Duff
Evansville, Indiana                                       Duff Law, LLC
                                                          Evansville, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

In re the Paternity of D.J. b/n/f:                        April 17, 2017

Desiree Jennings,                                         Court of Appeals Case No.
                                                          82A01-1606-JP-1406
Appellant-Petitioner,
                                                          Appeal from the Vanderburgh
        v.                                                Superior Court
                                                          The Honorable Richard G.
Leewayne Johnson,                                         D’Amour, Judge
                                                          Trial Court Cause No.
Appellee-Respondent
                                                          82D07-1004-JP-245



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 82A01-1606-JP-1406 | April 17, 2017      Page 1 of 16
                                           Case Summary
[1]   Desiree Jennings (“Mother”) appeals the trial court’s order granting Lee Wayne

      Johnson (“Father”) primary physical custody and sole legal custody of their

      daughter. Finding that the evidence supports the court’s modification of

      physical and legal custody but that the reduction of Mother’s parenting time is a

      drastic change unsupported by the record, we affirm in part and remand with

      instructions.



                            Facts and Procedural History
[2]   Mother gave birth to a daughter, D.J., on January 13, 2010. Later that year,

      DNA testing established Father’s paternity, but Mother maintained primary

      physical custody and sole legal custody of D.J. Father then petitioned the court

      for parenting time with D.J. and was awarded time pursuant to the Indiana

      Parenting Time Guidelines.

[3]   In August 2014, Father petitioned the trial court to modify custody, child

      support, and parenting time. After multiple procedural delays, the court held a

      hearing on Father’s petition a year later, in August 2015. At the conclusion of

      the hearing, the court issued a temporary order that Mother and Father “shall

      have joint legal custody of the child who shall reside one week with Mother and

      then one week with Father.” Appellant’s App. Vol. II p. 66. The trial court’s

      order also stated, “The Mother has a history of unstable relationships with men

      including multiple instances of domestic violence. There have been instances


      Court of Appeals of Indiana | Memorandum Decision 82A01-1606-JP-1406 | April 17, 2017   Page 2 of 16
      where the [child was] present during these episodes.” Id. at 65. The court

      concluded that Mother’s home was more unstable than Father’s and that

      Mother has unresolved anger issues. As a result of her anger issues, Mother

      was ordered to attend and complete an anger-management course within four

      months of the court’s order; she was also ordered to provide the court with a

      certificate of completion for the course.

[4]   The court held a follow-up hearing on May 19, 2016. Father testified that he

      was concerned about D.J.’s hygiene during Mother’s parenting time. Mother

      and Father were exercising the every-other-week parenting-time schedule, and

      Father said that “at the next exchange date my daughter would come home to

      me and she would still have, uh, [the] same underwear on that she left my

      house with the last previous Sunday.” Tr. p. 14. D.J.’s underwear would be

      extremely dirty, and Father was “left with the impression that she had not been

      cleaned[.]” Id.; see Father’s Exs. D – G (photos of D.J.’s dirty underwear). As

      a result of the dirty underwear, Father noticed that D.J. had a “bad odor” and

      took her to the doctor. Tr. p. 43. The doctor diagnosed D.J. with a bladder

      infection or urinary-tract infection (UTI) (Father could not remember the exact

      diagnosis); the doctor told Father that the infection was a result of D.J.’s dirty

      underwear.

[5]   In addition to D.J.’s dirty underwear, Father had other concerns with Mother’s

      parenting. During her parenting time, Mother surrendered on felony charges of

      fraud on a financial institution. Mother did not inform Father that she was

      surrendering, and Father was unaware of who cared for D.J. while Mother was

      Court of Appeals of Indiana | Memorandum Decision 82A01-1606-JP-1406 | April 17, 2017   Page 3 of 16
      in jail. Father only learned that Mother was in jail from his wife’s co-worker.

      After learning that Mother was in jail, Father called the police to meet him at

      Mother’s house so that he could take custody of D.J. At the same time, Mother

      bonded out of jail and arrived home to find Father and the police. Father

      remained in his car, which was parked in front of a neighbor’s home. He heard

      Mother scream at the officer to get off her property, curse at the officer, and call

      the officer “white trash.” Id. at 57. D.J. was inside the house during this

      altercation.

[6]   Father also stated that he was concerned about Mother’s relationship with

      Michael Anderson, with whom she has a history of domestic violence,

      including an incident in front of D.J. One domestic-violence incident with

      Anderson resulted in Mother being arrested. Father stated that Anderson has

      been with Mother at the majority of the parenting-time exchanges.

[7]   Regarding his relationship with Mother, Father testified that they have a

      strained relationship and do not communicate with one another. He stated that

      when they have communicated in the past, they have only done so via text

      message. He said that most of the time Mother does not respond to his

      messages. Father also said that they do not talk during the parenting-time

      exchanges. One example Father offered of their lack of communication dealt

      with a dentist appointment for D.J.; Mother made the appointment during

      Father’s parenting time but did not tell him about the appointment. He only

      learned of the appointment when he found the reminder postcard in D.J.’s

      backpack, two days before the appointment. During her testimony, Mother

      Court of Appeals of Indiana | Memorandum Decision 82A01-1606-JP-1406 | April 17, 2017   Page 4 of 16
      agreed that she and Father do not communicate. Mother admitted that she

      does not listen to Father when he talks, including his testimony during their

      hearing:

              Q: And you didn’t listen when he testified where he’s employed?


              A: No.


              Q: Or at the last hearing when he testified he’s employed?


              A: Uh, nope.


      Id. at 78. Mother countered Father’s dentist story by saying that he failed to

      notify her that D.J.’s school-bus schedule had changed. The school had

      provided D.J. with notice of the change during Father’s parenting time, but

      Father did not share this information with Mother.

[8]   Regarding D.J.’s underwear and hygiene, Mother stated that she washes the

      clothes that D.J. wears at the parenting-time exchange (Father to Mother) and

      then dresses D.J. in the same clothes for the exchange the following week

      (Mother to Father). Mother claimed that the underwear was dirty from old

      stains and from being worn all day. Mother said that D.J. has a bathroom

      inside her bedroom and that “taking a bath is a normal thing in the household.”

      Id. at 95.


[9]    When asked about Father’s other parenting concerns, Mother refused to

       answer any questions about her fraud case and invoked her Fifth Amendment


      Court of Appeals of Indiana | Memorandum Decision 82A01-1606-JP-1406 | April 17, 2017   Page 5 of 16
        privilege against self-incrimination. Additionally, Mother informed the court

        that she and Anderson, the man with whom she has a history of domestic

        violence, had gotten married in July 2015. Mother had not informed Father or

        the trial court of her marriage despite being asked about her relationship status

        with Anderson at the previous hearing, which was held two months after the

        wedding. Despite being married, Anderson does not live with Mother on a

        full-time basis. Mother explained their living arrangements:

               [H]e comes over, if he spends the night he may spend the night,
               he might not come over for two (2) weeks, he may [come over]
               once a month, so I don’t write down how many times
               [Anderson] comes over to my house but he’s welcome to [come
               over], he’s always welcome to come over to the home.


       Id. at 65.


[10]   Throughout her testimony Mother was “disrespectful” to the court and both

       attorneys. Appellant’s App. Vol. II p. 24. At one point, the court prevented

       Mother from testifying about events that occurred before the August 2015

       hearing, and she got upset. The court warned Mother that she would be

       “spending the next couple [of] nights in the Vanderburgh County Jail okay, if

       you have another outburst of snide, sarcastic comments directed to the Court . .

       . .” Tr. p. 102. Mother responded, “I’m sure you would like that, make

       [Father] look better, have more time with [D.J.].” Id. Mother was found in

       contempt and sentenced to ten days in jail. After a brief recess, Mother was

       given the opportunity to “purge herself” of the contempt ruling and said, “I

       apologize, that’s all I have to say.” Id. at 103-04. As a result, the court purged
       Court of Appeals of Indiana | Memorandum Decision 82A01-1606-JP-1406 | April 17, 2017   Page 6 of 16
       the contempt charge but noted that Mother’s apology was “somewhat half-

       hearted.” Id. at 111.


[11]   At the conclusion of the testimony, the trial court asked Mother for a copy of

       her anger-management completion certificate because it had not received a

       copy from her. The temporary court order had required Mother to submit

       proof of completion in January, four months earlier. Mother replied, “Anger

       management wasn’t recommended with a therapist and I didn’t get a certificate,

       no.” Id. at 107-08.


[12]   In its final order, the trial court found a “substantial and continuing change in

       circumstances” from its temporary order: (1) Mother continued to struggle with

       anger issues and ignored the court’s order to attend and complete anger

       management; (2) Mother married Michael Anderson, who had engaged in

       domestic disputes with Mother in front of D.J.; (3) Mother has “a total

       disrespect for any person of authority,” including police officers, attorneys, and

       the court; (4) Mother “seems to be unable to care for the general hygiene of her

       child,” and D.J’s underwear “appear[s] never to be changed and [is] filthy”; and

       (5) Mother was arrested on felony charges for fraud against a financial

       institution. Appellant’s App. Vol. II pp. 24-25. The court granted Father sole

       legal custody and primary physical custody of D.J. Regarding Mother’s

       parenting time, the trial court found that “unsupervised parenting time is not in

       the child’s best interests and, in fact, would be dangerous to the child’s physical

       and emotional health. The Mother shall have supervised parenting time . . . for

       one hour each weekend at her expense.” Id.

       Court of Appeals of Indiana | Memorandum Decision 82A01-1606-JP-1406 | April 17, 2017   Page 7 of 16
[13]   Mother now appeals.



                                  Discussion and Decision
[14]   Mother argues that the evidence is insufficient to support the trial court’s order

       modifying physical custody and that the trial court abused its discretion when it

       awarded Father sole legal custody of D.J. “Modification of custody is an area

       committed to the sound discretion of the trial court, and we are constrained to

       neither reweigh evidence nor judge the credibility of witnesses.” Albright v.

       Bogue, 736 N.E.2d 782, 787 (Ind. Ct. App. 2000). Custody modifications will

       be reversed “only upon a showing of abuse of discretion, or where the decision

       is clearly against the logic and effect of the circumstances before the court.” Id.

       (physical custody); see also Higginbotham v. Higginbotham, 822 N.E. 2d 609, 611

       (Ind. Ct. App. 2004) (legal custody).


                                         I. Physical Custody
[15]   Mother argues that the evidence is insufficient to support the trial court’s order

       granting Father primary physical custody of D.J. and Mother only one hour of

       supervised parenting time per week. To modify an existing custody order, the

       trial court must find that modification is in the best interests of the child and

       that there is a substantial change in one or more of the factors to be considered

       by the court. Ind. Code § 31-14-13-6. The court is to consider all relevant

       factors to the case, including:

               (1) The age and sex of the child.

       Court of Appeals of Indiana | Memorandum Decision 82A01-1606-JP-1406 | April 17, 2017   Page 8 of 16
               (2) The wishes of the child’s 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 parents;


                        (B) the child’s siblings; and


                        (c) any other person who may significantly affect the
                        child’s best interests.


               (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.


               (8) Evidence that the child has been cared for by a de facto
               custodian, and if the evidence is sufficient, the court shall
               consider the factors described in section 2.5(b) of this chapter.


       Ind. Code § 31-14-13-2.

[16]   Mother raises multiple challenges to the sufficiency of the evidence. Mother’s

       first argument is that “there was no evidence offered that [Mother] had made

       any negative or inappropriate statements to law enforcement officers in front of

       D.J.” Appellant’s Br. p. 15. Father testified that when Mother was in jail for

       Court of Appeals of Indiana | Memorandum Decision 82A01-1606-JP-1406 | April 17, 2017   Page 9 of 16
       her pending felony case, he went to her house with police to gain custody of

       D.J. While an officer was at the house, Mother showed up and began

       screaming and cursing at the officer. Father believed D.J. was in the house

       during the altercation. Father remained in his car, which was parked in front of

       a neighbor’s house, and heard every word that Mother was screaming at the

       officer. Mother did not deny this incident with the officer nor did she rebut

       Father’s claim that D.J. was inside the house at the time. We do not find it

       illogical for the court to conclude that D.J. was inside Mother’s home at the

       time of this incident or that D.J. could hear Mother screaming and cursing at

       police. See Albright, 736 N.E.2d at 787 (“Reversal is warranted . . . where the

       decision is clearly against the logic and effect of the circumstances before the

       court.”)


[17]   Mother also claims that the trial court ordered the change in physical custody as

       punishment for her behavior in court. She correctly points out that “an award

       of custody may not be made or changed in order to punish a parent.” Clark v.

       Clark, 404 N.E.2d 23, 35 (Ind. Ct. App. 1980). However, to prevail on this

       claim, “[Mother] must show not merely that the evidence might support her

       allegation, but that it positively requires her conclusion before we reverse.” Id.

       (citing Brickley v. Brickley, 247 Ind. 201, 210 N.E.2d 850 (Ind. 1965)). Mother

       has not met her evidentiary burden. There is ample evidence in the record—

       Mother’s altercation with police in her front yard, Mother’s history of domestic

       violence with Anderson, and D.J.’s dirty underwear that caused her UTI or




       Court of Appeals of Indiana | Memorandum Decision 82A01-1606-JP-1406 | April 17, 2017   Page 10 of 16
       bladder infection—to show that the trial court’s order was not retaliatory for

       Mother’s disrespectful behavior at the May hearing.1

[18]   Last, Mother challenges the court’s conclusion that “unsupervised parenting

       time is not in the child’s best interest[s] and, in fact, would be dangerous to the

       child’s physical and emotional health.” Appellant’s App. Vol. II p. 25. She

       argues that there is no evidence to support the conclusion that she poses a threat

       to D.J. “A parent not granted custody of the child is entitled to reasonable

       parenting time rights unless the court finds, after a hearing, that parenting time

       by the noncustodial parent might endanger the child’s physical health or

       significantly impair the child’s emotional development.” Ind. Code § 31-17-4-

       1(a). Father provided the court with photos of D.J.’s dirty underwear, and D.J.

       was diagnosed with a bladder infection or UTI because of the dirty underwear.

       Furthermore, there was evidence that Mother had been involved in domestic

       disputes with Anderson, her husband, in front of D.J., Appellant’s App. Vol. II

       p. 25, and that she had been arrested for at least one domestic-violence incident

       involving Anderson, see Tr. p. 66. We find that there is sufficient evidence to

       support the conclusion that Mother poses a danger to D.J.’s physical and

       emotional health and that the trial court was acting within its discretion when it

       ordered supervised parenting time for Mother However, we conclude that the




       1
         Mother also argues that “there was no evidence that the parties’ minor child had ever witnessed any anger
       issues by [Mother].” Appellant’s Br. p. 18. The court heard testimony that Mother screamed and cursed at
       an officer outside her home while D.J. was inside the home. Additionally, evidence was presented that
       domestic-violence incidents between Mother and Anderson have occurred in front of D.J. We conclude that
       there is sufficient evidence to show that D.J. has witnessed Mother’s anger issues.

       Court of Appeals of Indiana | Memorandum Decision 82A01-1606-JP-1406 | April 17, 2017         Page 11 of 16
       reduction of Mother’s parenting time to one hour per week is a drastic change

       that is not supported by the record nor is it in D.J.’s best interests. We remand

       to the trial court to issue a new order granting Mother additional supervised

       parenting time with D.J.


                                           II. Legal Custody
[19]   Mother also contends that the trial court abused its discretion when it modified

       its prior order and granted Father sole legal custody of D.J. Parents who are

       awarded joint legal custody “will share authority and responsibility for the

       major decisions concerning the child’s upbringing, including the child’s

       education, health care, and religious training.” Ind. Code § 31-9-2-67. The

       issue of joint legal custody, in paternity proceedings, is governed by Indiana

       Code section 31-14-13-2.3, which states, in subsection (a), that “the court may

       award legal custody of a child jointly if the court finds that an award of joint

       legal custody would be in the best interest[s] of the child.” To determine what

       is in the best interests of the child, subsection (c) provides a list of factors for the

       court to consider:

               (1) the fitness and suitability of each of the persons awarded joint
               legal custody;


               (2) whether the persons awarded joint custody are willing and
               able to communicate and cooperate in advancing the child’s
               welfare;


               (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;

       Court of Appeals of Indiana | Memorandum Decision 82A01-1606-JP-1406 | April 17, 2017   Page 12 of 16
               (4) whether the child has established a close and beneficial
               relationship with both of the persons awarded joint custody;


               (5) whether the persons awarded joint custody:


                        (A) live in close proximity to each other; and


                        (B) plan to continue to do so;


               (6) the nature of the physical and emotional environment in the
               home of each of the persons awarded joint custody;


               (7) whether there is a pattern of domestic or family violence.


       Ind. Code § 31-14-13-2.3(c). We have previously held that factor (2) is

       “[p]articularly germane to whether joint legal custody should be modified.”

       Julie C. v. Andrew C., 924 N.E.2d 1249, 1260 (Ind. Ct. App. 2010) (discussing

       joint legal custody in a dissolution proceeding, under Indiana Code section 31-

       17-2-15).

[20]   Mother contends that “the entire record is devoid of any reasons for seeking a

       modification of joint legal custody.” Appellant’s Br. p. 23. We disagree. The

       record is replete with evidence that Mother and Father do not communicate

       with one another, even regarding D.J. Mother did not alert Father to a dentist

       appointment that she made for D.J. during Father’s parenting time. Father

       only learned of the appointment because he found the reminder postcard in

       D.J.’s backpack. Furthermore, Mother testified that she does not listen to



       Court of Appeals of Indiana | Memorandum Decision 82A01-1606-JP-1406 | April 17, 2017   Page 13 of 16
       Father when he talks, including to the testimony that he provided at the custody

       hearings for D.J.

[21]   Additionally, Mother has been involved in numerous domestic-violence

       disputes with her husband, including one instance that resulted in Mother being

       arrested. At least one of these domestic-violence disputes took place in front of

       D.J. We disagree with Mother’s contention that the record is devoid of any

       evidence to support a modification of joint legal custody. We conclude that the

       court did not abuse its discretion when it modified its award of joint legal

       custody and granted Father sole legal custody of D.J.


[22]   Affirmed in part and remanded with instructions.

       Brown, J., concurs.

       Bradford, J., concurs in part and dissents in part with separate opinion.




       Court of Appeals of Indiana | Memorandum Decision 82A01-1606-JP-1406 | April 17, 2017   Page 14 of 16
                                                  IN THE
           COURT OF APPEALS OF INDIANA

       In re the Matter of the Paternity                         April 17, 2017
       of D.J. By Next Friend:                                   Court of Appeals Case No.
                                                                 82A01-1606-JP-1406
       Desiree L. Johnson,                                       Appeal from the Vanderburgh
       Appellant-Petitioner,                                     Superior Court
                                                                 The Honorable Richard G.
               v.                                                D’Armour, Judge
                                                                 Trial Court Cause No.
       Lee Wayne Johnson,                                        82D07-1004-JP-245
       Appellee-Respondent.



       Bradford, Judge, concurring in part, dissenting in part.


[23]   I fully concur with the majority’s conclusion that the trial court acted within its

       discretion in granting physical and sole legal custody of D.J. to Father.

       However, I must respectfully dissent from the majority’s conclusion that the

       trial court abused its discretion in reducing Mother’s parenting time with D.J.

       to one supervised hour per week. Because I believe that the trial court was in

       the best position to determine the appropriate manner and amount of visitation
       Court of Appeals of Indiana | Memorandum Decision 82A01-1606-JP-1406 | April 17, 2017   Page 15 of 16
exercised by Mother, I would affirm the trial court’s order in this regard. See

Duncan v. Duncan, 843 N.E.2d 966, 969 (Ind. Ct. App. 2006) (providing that

“[u]pon review of a trial court’s determination of a visitation issue, we will

grant latitude and deference to our trial courts”), trans. denied. I also trust that

the trial court would be in the best position to grant appropriate increases in

Mother’s parenting time once she has made sufficient progress in addressing her

issues. As such, I concur in part and dissent in part.




Court of Appeals of Indiana | Memorandum Decision 82A01-1606-JP-1406 | April 17, 2017   Page 16 of 16
