      MEMORANDUM DECISION
                                                                    Aug 20 2015, 9:56 am
      Pursuant to Ind. Appellate Rule 65(D), this
      Memorandum Decision shall not be regarded as
      precedent or cited before any court except for the
      purpose of establishing the defense of res judicata,
      collateral estoppel, or the law of the case.



      ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
      Charles P. Dargo                                         Caroline B. Briggs
      Law Offices of Charles P. Dargo, P.C.                    Lafayette, Indiana
      Demotte, Indiana



                                                  IN THE
         COURT OF APPEALS OF INDIANA

      In re the paternity of T.M.                              August 20, 2015
                                                               Court of Appeals Case No.
      T.M., by next friend, Jeffrey D.                         56A03-1409-JP-324
      Drinkski, Newton County
                                                               Appeal from the Newton Circuit
      Prosecuting Attorney and L.M.,                           Court
      Appellant-Petitioner,                                    Trial Court Cause No.
                                                               56C01-0908-JP-25
              v.
                                                               The Honorable Jeryl F. Leach,
                                                               Judge
      D.H.,
      Appellee-Respondent.




      Pyle, Judge.

[1]   Appellant/Petitioner L.M. (“Mother”) appeals the trial court’s order

      modifying physical custody of then five-year-old T.M. to

      Appellee/Respondent D.H. (“Father”). On appeal, Mother claims that the


      Court of Appeals of Indiana | Memorandum Decision 56A03-1409-JP-324 | August 20, 2015    Page 1 of 13
      trial court committed reversible error by not striking the testimony and report

      of the guardian ad litem (“GAL”) because of alleged bias. In addition, she

      argues that the trial court abused its discretion in modifying the custody order

      because Father did not present sufficient evidence satisfying the requirements

      of INDIANA CODE § 31-17-2-21. Concluding that the trial court did not abuse

      its discretion in denying the motion to strike or modifying custody of T.M. to

      Father, we affirm the trial court’s order.


[2]   We affirm.


                                                    Issues
              1. Whether the trial court erred when it denied Mother’s
                 motion to strike the testimony and report of the GAL.

              2. Whether the trial court abused its discretion in modifying
                 the custody order.



                                                    Facts
[3]   Mother and Father (collectively “the Parents”) are the parents of T.M., born

      in April of 2009. On July 19, 2010, the trial court issued an order establishing

      Father’s paternity. Father subsequently filed a motion seeking custody of

      T.M., and, on April 14, 2011, the trial court approved an agreement between

      the Parents establishing joint legal custody of T.M. Mother retained primary

      physical custody, and the agreement granted Father parenting time three

      weekends per month and seventeen days in the summer.



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[4]   In January of 2014, Mother sought treatment for T.M. through Wabash

      Valley Alliance (“WVA”) because he was displaying “angry and emotional”

      behavior. (Father’s Ex. 1 at 4). During an initial meeting, Mother noted that

      T.M.’s poor behavior had begun over a year and a half prior to seeking

      treatment, but T.M.’s behavior had recently worsened two months prior to

      beginning treatment.


[5]   WVA records showed that the objective for T.M.’s treatment was to help him

      develop “coping” and “calming” techniques to manage his behavior and

      feelings. (Father’s Ex. 1 at 35, 37). During the first few sessions, T.M., who

      was then almost five-years-old, performed well in following the directions of

      his case manager, Frankie Steepleton (“Steepleton”). However, he also

      showed an “inability to count beyond three and had difficulty with [a]

      preschool game.” (Father’s Ex. 1 at 33). In subsequent sessions over three

      months, T.M. continued to display angry and emotional behavior, and he

      would not consistently communicate his feelings.


[6]   Specifically, T.M. became easily frustrated when asked to write his name

      while coloring, could not describe how he felt about starting kindergarten or

      any other feeling in general, and, according to the treatment records, used

      noises instead of words to communicate. In one instance, T.M. stated,

      “Frankenstein gets mad when he does not get what he wants and when people

      are at the house.” (Father’s Ex. 1 at 30). When participating in activities

      during therapy, Mother would answer questions and perform tasks for T.M.

      instead of allowing him to do so. Treatment notes also revealed Mother’s

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       belief that the atmosphere in her home could be better and that she specifically

       needed to work “on her tone of voice (yelling), sarcasm, taking responsibility,

       and keeping adult conversation away from the children.” (Father’s Ex. 1 at

       31).


[7]    Father did not attend therapy sessions, but he did contact Steepleton for

       progress reports and suggestions on what he could work on with T.M. Father

       subsequently filed a motion to modify custody on May 13, 2014. The trial

       court appointed Mary K. Emmrich (“Emmrich”) as GAL on June 23, 2014

       and scheduled a hearing on the motion for August 6, 2014.


[8]    Emmrich filed her report with the trial court on July 18, 2014 and

       recommended that T.M. be placed with Father. She made this

       recommendation because of instability in Mother’s home and because the

       educational resources available to address T.M.’s behavioral issues were better

       in the district where Father resided.


[9]    During the hearing on August 6th, Emmrich testified that she did not

       personally know Father, Mother, or T.M. However, she did state that she

       knew Father’s mother-in-law. Specifically, Emmrich testified that she had

       attended high school with Father’s mother-in-law and had worked with her on

       a prior case. However, Emmrich testified that she had not had any contact

       with the mother-in-law regarding T.M.


[10]   After breaking for lunch, the hearing reconvened, and Mother moved to strike

       Emmrich’s testimony and report, claiming that she was inherently biased as a

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       result of her relationship with Father’s mother-in-law. Father responded that

       Emmrich’s testimony showed that she had not had contact with the mother-

       in-law. The trial court found “that there [was] not a showing sufficient to

       strike the report or Emmrich[’s] [testimony.]” (Tr. 29).


[11]   The court issued an order on August 18, 2014. It concluded, “there [was] a

       substantial and continuing change regarding the statutory factors to be

       considered in cases of this type that ma[de] it in the best interest of the child

       that custody and parenting time should be modified.” (Father’s App. 39).

       The trial court modified custody of T.M. to Father and ordered parenting time

       according to the Indiana Parenting Time Guidelines for Mother. Mother now

       appeals. We will provide additional facts as necessary.


                                                   Decision
[12]   On appeal, Mother claims that the trial court committed reversible error by

       not granting her motion to strike Emmrich’s testimony or report and abused

       its discretion by modifying the custody order. We address each of her

       arguments in turn.


[13]   1. Motion to Strike


[14]   The admission and exclusion of evidence falls within the sound discretion of

       the trial court, and we review the admission of evidence only for an abuse of

       discretion. Estate of Carter v. Szymczak, 951 N.E.2d 1, 5 (Ind. Ct. App. 2011),

       trans. denied. An abuse of discretion occurs when the trial court’s decision is

       clearly against the logic and effect of the facts and circumstances before it. Id.
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       This Court will not reverse the trial court’s admission of evidence absent a

       showing of prejudice. Id.


[15]   In order to preserve an appellate argument challenging the admission of

       evidence, a party must have made an objection contemporaneous with the

       presentation of evidence, and the failure to object will result in waiver of any

       alleged error. Raess v. Doescher, 883 N.E.2d 790, 796 (Ind. 2008), reh’g denied.


[16]   Here, it was only after returning from the lunch break that Mother moved to

       strike Emmrich’s testimony and report based on Indiana Rule of Evidence 616

       and Trial Rule 37. Because Mother failed to make a contemporaneous

       objection to Emmrich’s testimony and report, her challenge on appeal is

       waived. See, e.g., TRW Vehicle Safety Sys., Inc. v. Moore, 936 N.E.2d 201, 218

       (Ind. 2010) (Supreme Court declined to give consideration to objections that

       were not made at the time of witness’s testimony).


[17]   Waiver notwithstanding, the trial court did not err in denying Mother’s

       motion to strike Emmrich’s testimony or report pursuant to Indiana Evidence

       Rule 616. The rule provides that, “[e]vidence that a witness has a bias,

       prejudice, or interest for or against any party may be used to attack the

       credibility of the witness.” The rule should be read in conjunction with Rule

       403’s required balancing of probative value against the danger of unfair

       prejudice. Ingram v. State, 715 N.E.2d 405, 407 (Ind. 1999). “Unfair prejudice

       . . . looks to the capacity of the evidence to persuade by illegitimate means, or




       Court of Appeals of Indiana | Memorandum Decision 56A03-1409-JP-324 | August 20, 2015   Page 6 of 13
       the tendency of the evidence to suggest decision on an improper basis.” Id.

       (internal citation and quotation marks omitted).


[18]   Mother’s argument misapprehends the purpose of Rule 616. Again, Mother

       believes that the trial court should have striken Emmrich’s testimony and

       report because she was biased in favor of Father. However, a plain reading of

       the Rule shows that it permits the admission of evidence revealing a witness’s

       bias; it does not require trial court’s to exclude other evidence when bias is

       shown. “Indiana’s court’s long have recognized that once a witness’s bias has

       been demonstrated sufficiently that the [fact-finder] is unlikely to think the

       witness is testifying from a sense of citizenship rather than interest or bias, the

       court has discretion to move the trial forward.” Robert L. Miller Jr.,

       Courtroom Handbook on Indiana Evidence 238 (Thompson Reuters 2014-

       2015); See also Konopasek v. State, 946 N.E.2d 23, 27-28 (Ind. 2011). Because

       the trial court permitted the parties to present evidence of Emmrich’s alleged

       bias, Mother’s assertion of error goes to the weight the trial court placed upon

       Emmrich’s testimony and report, not its admissibility. Id.


[19]   Concerning Emmerich’s relationship with Father’s mother-in-law, the

       following colloquy took place during the hearing:

               Mother’s Counsel: Did you have knowledge of any other
               people involved [or] associated with the parties[] here prior to
               doing this report?

               Emmrich: Do I have knowledge of other people associated
               with the parties . . .

               Mother’s Counsel: Did you know any of the people . . .

       Court of Appeals of Indiana | Memorandum Decision 56A03-1409-JP-324 | August 20, 2015   Page 7 of 13
        Emmrich: I did not know [T.M.] and [Mother].

        Mother’s Counsel: And do you know any of the people who
        are associated . . .

        Emmrich: I know [Father’s mother-in-law] and her family.

        The Court: Ms. Emmrich

        Emmrich: Yes

        The Court: I need you to wait for the question to be finished
        before you start to answer.

        Emmrich: Thank you, your Honor.

        Mother’s Counsel: Ok, so you know [Father’s] wife’s family?

        Emmrich: Yes.

        Mother’s Counsel: Ok. Prior to . . . and how do you know
        them?

        Emmrich: I went to school with them. High [s]chool.

        Mother’s Counsel: Have you had any association with them
        in the last couple of years?

        Emmrich: I’ve had association with them, yes.

        Mother’s Counsel: I have no further questions at this point.

        The Court: Cross?

        Father’s Counsel: Yep, I am going to be a while at this point,
        if that’s going to be ok?

        The Court: We will go for a little while.


Court of Appeals of Indiana | Memorandum Decision 56A03-1409-JP-324 | August 20, 2015   Page 8 of 13
               Father’s Counsel: [H]ave you ever met [Father] before this
               event?

               Emmrich: Not before this matter.

               Father’s Counsel: And have you had any . . . you said you
               went to [h]igh [s]chool [with Father’s mother-in-law], was there any
               close
               relationship between your family and them?

               Emmrich: [Father’s] mother-in-law was employed at[]
               Indiana Developmental Technical School. I had
               been in contact with her on a previous CASA case.

               Father’s Counsel: Alright, but not on this particular matter?

               Emmrich: Not on this matter.

       (Tr. 16-17).


[20]   The record reveals that Emmrich’s “relationship” with Father’s mother-in-law

       is very remote. Under Rule 616, the trial court considered the evidence

       concerning Emmrich’s alleged bias, but, apparently, determined that there was

       no basis to discount Emmrich’s testimony or her report. We also note that

       when Father’s mother-in-law testified during the hearing, Mother did not

       question her regarding any contact or relationship with Emmrich. As a result,

       Mother has failed to persuade us that attending high school and working on

       one unrelated case with Father’s mother-in-law constitutes “unfair prejudice”.

       In addition, Mother points to no other evidence suggesting that the trial

       court’s decision was affected by improper bias. Accordingly, the trial court

       properly denied Mother’s motion to strike.


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[21]   Mother also cites Trial Rule 37 as grounds to strike the GAL’s testimony.

       However, Trial Rule 37 contemplates sanctions for violating a court order

       compelling discovery. Mother has made no showing that the GAL failed to

       cooperate in discovery or that she sought a court order compelling discovery.

       Accordingly, Trial Rule 37 is inapplicable. The trial court did not abuse its

       discretion in denying Mother’s motion to strike.


[22]   2. Modification of Custody Order


[23]   Mother argues that “Father failed to introduce sufficient evidence of probative

       value to substantiate a change of physical custody[.]” (Mother’s Br. 9).

       Father claims that the evidence is sufficient to support the trial court’s order.

       We agree with Father.


[24]   “[W]e review custody modifications for [an] abuse of discretion with a

       ‘preference for granting latitude and deference to our trial judges in family law

       matters.’” K.I. ex rel. J.I. v. J.H., 903 N.E.2d 453, 457 (Ind. 2009) (quoting

       Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002)). A trial court abuses its

       discretion if it renders a decision that is clearly against the logic and effect of

       the facts and circumstances before the court or the reasonable inferences to be

       drawn therefrom. White v. White, 655 N.E.2d 523, 531 (Ind. Ct. App. 1995).

       In determining whether a trial court has abused its discretion, we will not

       reweigh the evidence nor reassess witness credibility, and we consider only the

       evidence that supports the trial court’s decision. Bowman v. Bowman, 686

       N.E.2d 921, 925 (Ind. Ct. App. 1997).


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[25]   INDIANA CODE § 31-14-13-6 governs the modification of child custody in

       paternity proceedings. It provides that a “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 [INDIANA CODE § 31-14-13-2].” In turn, INDIANA CODE

       § 31-14-13-2 provides:


[26]           The court shall determine custody in accordance with the best
               interests of the child. In determining the child’s best interests,
               there is not a presumption favoring either parent. The court
               shall consider all relevant factors, including the following:
               (1) The age and sex of the child.

               (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 . .
               ..



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[27]   Here, the facts and circumstances before the trial court were that T.M., at

       almost the age of five, could not count past three and displayed behavioral

       problems that, according to the WVA documents, did not substantially

       improve during the time he was in therapy. The WVA documents also

       showed Mother’s acknowledgement that she was not fostering a positive

       environment for T.M.


[28]   The record also depicts drug use and domestic violence issues between Mother

       and her husband (“Stepfather”) that led to intervention by the Department of

       Child Services (“DCS”). Indeed, during a traffic investigation, Stepfather told

       sheriff’s deputies that he had spent the day looking for heroin and that Mother

       had sold T.M.’s Adderall. Mother, after arriving at the scene of the

       investigation, told deputies that Stepfather was a drug dealer.


[29]   Stepfather was also arrested for battering Mother in the presence of their

       infant child, T.M.’s half-brother. These incidents led to DCS implementing a

       safety plan requiring Mother and Stepfather to refrain from using illegal drugs

       or excessive alcohol, to properly administer T.M.’s prescription medication,

       and to refrain from acts of domestic violence. 1


[30]   In contrast, Father testified that during his parenting time, T.M. did not

       exhibit the behavior previously mentioned. Father’s wife, however, did state

       that T.M. would mention when Mother was having problems with her



       1
        Prior to this safety plan, DCS had initiated another safety plan for Mother and Stepfather that only
       addressed domestic violence between them.

       Court of Appeals of Indiana | Memorandum Decision 56A03-1409-JP-324 | August 20, 2015           Page 12 of 13
       husband. Father’s wife observed that T.M. appeared to be more “moody,

       crabby, [and] stressed out” when Mother and her husband were having issues.

       (Tr. 39). Further, Emmrich noted in her report that Father and his wife,

       unlike Mother and Stepfather, did not appear to have as much conflict in their

       relationship.


[31]   The reasonable inference from the facts and circumstances is that the trial

       court considered the mental health of T.M., his interactions with the Parents,

       and his adjustment to Mother’s home versus Father’s, and determined that

       there was a substantial change warranting modification of the custody order.

       Given the evidence and the deference that we show to the trial court in family

       law matters, we cannot say that an abuse of discretion occurred.


[32]   Affirmed.


       Crone, J., and Brown, J., concur.




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