MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                           FILED
regarded as precedent or cited before any
court except for the purpose of establishing                                Aug 30 2017, 6:39 am

the defense of res judicata, collateral                                         CLERK
                                                                            Indiana Supreme Court
estoppel, or the law of the case.                                              Court of Appeals
                                                                                 and Tax Court




APPELLANT PRO SE                                         ATTORNEY FOR APPELLEE
James Strong                                             Katherine S. Brown
Greencastle, Indiana                                     Brown & Somheil
                                                         Brazil, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

James Strong,                                            August 30, 2017
Appellant-Movant,                                        Court of Appeals Case No.
                                                         67A04-1703-JP-633
        v.                                               Appeal from the Putnam Circuit
                                                         Court
Shandra Snowden,                                         The Honorable Matthew L.
Appellee-Respondent                                      Headley, Judge
                                                         Trial Court Cause No.
                                                         67C01-0308-JP-70



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 67A04-1703-JP-633 | August 30, 2017               Page 1 of 11
[1]   James Strong (Father) appeals the trial court’s order denying his motion to

      modify parenting time and restricting the parenting time he was already

      exercising.1 Father raises a number of issues, which we consolidate and restate

      as an argument that there is insufficient evidence supporting the trial court’s

      ruling. Finding the evidence sufficient, we affirm.


                                                          Facts
[2]   Father and Shandra Snowden (Mother) have one child together: D.E., who

      was born in 2003 to the unmarried parents. Mother and Father are no longer in

      a romantic relationship and have not been so since the time of D.E.’s birth.

      Since D.E.’s birth, Mother has had primary legal and physical custody of the

      child and, for many years, Father exercised reasonable parenting time pursuant

      to guidelines put in place by the trial court.


[3]   In December 2014, Father was exercising parenting time with D.E. every other

      Friday night until Monday morning and every Wednesday night until Thursday

      morning. Around that time, eleven-year-old D.E. brought a boy and another

      girl to Father’s house while he was at work. Mother punished D.E., including

      grounding her for the remainder of the school year, suspending internet

      privileges, calling the boy’s mother, and calling the mother of the girl who was

      with D.E. during the incident. Father’s response has been to monitor all of




      1
        His motion requested other relief as well, but the only portion of the ruling at issue in this appeal relates to
      the requested modification of parenting time.

      Court of Appeals of Indiana | Memorandum Decision 67A04-1703-JP-633 | August 30, 2017                  Page 2 of 11
      D.E.’s text communications and social media posts, installing an app so he can

      monitor her cell phone, and generally being extremely rigid with her. Two and

      one-half years later, Father is still “very fixated” on the incident when the boy

      came to his house: “He still seems very fixated on, any time she, you know

      what’s [sic] she’s wearing, who’s [sic] she’s with. Very concerned about those

      kind of things. About her being sexy.” Tr. Vol. II p. 175.


[4]   As a result of the incident and Father’s response to it, among other things, the

      relationship between D.E. and Father began to deteriorate dramatically. In

      June 2015, Father enrolled D.E. in counseling to try to repair their relationship.

      D.E. saw a therapist for a period of time who retired in April 2016; at that time,

      Dana Glessner took over the child’s therapy.


[5]   On February 12, 2016, Father filed a petition to, among other things, modify

      the parties’ parenting time structure. On March 31, 2016, Mother filed a

      motion for an emergency hearing regarding parenting time. It had come to

      light that Father had pinched or touched a bra that D.E. was wearing. The

      Department of Child Services became involved but eventually unsubstantiated

      allegations of inappropriate sexual contact. Father describes the encounter as

      follows:


              . . . Father noticed that [D.E.’s] bra looked inappropriate for her
              age. Father became upset, because he had been having to
              address the way that D.E. was dressing a lot, prior to that. The
              bra had a lot of black lace and straps, and looked more like
              lingerie, and appeared to be a push up bra. . . . Father pinched
              the padding of the bra to see if it was a push-up bra. Father never
              touched D.E.’s breasts.
      Court of Appeals of Indiana | Memorandum Decision 67A04-1703-JP-633 | August 30, 2017   Page 3 of 11
      Appellant’s Br. p. 11. Because of this encounter, the trial court held an

      emergency hearing and conducted an in camera interview with D.E.; the trial

      court subsequently restricted Father’s parenting time to public places with no

      overnights until the parties participated in family counseling.


[6]   In Glessner’s words, D.E.’s mental health is negatively impacted by her

      relationship with Father in the following ways:


          • When D.E. is at Father’s house, she felt cut off from her friends because
            she would not bring her phone to his house. He also refused to let her
            participate in social activities, which Glessner believed was limiting
            D.E.’s emotional and social development and was too restrictive. Tr.
            Vol. II p. 164. D.E. has significant concerns and anxiety because Father
            will not “allow her to go to those activities that she loves.” Id. at 166.
          • Spending overnights at Father’s house is “a huge stressor for her that
            really takes her away from things that she should be focusing on. Takes
            a lot of mental, emotional energy to her for deal [sic] with things with
            Dad and it’s, you know it takes a lot of recovery time for her after she’s
            you know had some of those visits.” Id. at 167.
          • D.E. told Glessner that “ninety nine percent of sources of her stress and
            anxiety and depression was from her Dad.” Id. at 171.
          • Father has called D.E. a “slut” and a “baby” and “blames her for getting
            upset when he calls her names[.]” Id. at 174.
          • Father has indicated that if he found out D.E. was sexually active, he
            would kill himself. Id.

      Father attended three counseling sessions with D.E. and Glessner, but stopped

      attending after a June 9, 2016, session because he did not like what Glessner

      was telling him. Father later returned to counseling in November 22, 2016, and

      resumed overnights with D.E. in December 2016.



      Court of Appeals of Indiana | Memorandum Decision 67A04-1703-JP-633 | August 30, 2017   Page 4 of 11
[7]   Glessner has diagnosed D.E. with anxiety and depression, the vast majority of

      which is attributable to her relationship with Father. While D.E. had been

      making progress in terms of her mental health leading up to December 2016,

      her anxiety and depression returned and worsened almost immediately after

      resuming overnights with Father. D.E.’s struggles now include physical

      symptoms, including vomiting before visits with Father, sleeplessness at

      Father’s home, increased crying, and difficulty concentrating.


[8]   Glessner has made a number of suggestions to Father about ways he could

      improve his relationship with D.E., but he has not been receptive to those

      suggestions. Glessner believes that Father needs to learn to be warm,

      encouraging, and supportive, and relax his rigid rules so that D.E. can exercise

      an appropriate amount of independence for her age. Glessner recommended

      that until Father and D.E. made progress in their relationship, overnights

      should be suspended because of the risk of harm to D.E.’s emotional and

      mental well-being.


[9]   The trial court held an evidentiary hearing on Father’s petition to modify

      parenting time on January 27, 2017. On March 1, 2017, the trial court denied

      Father’s petition. In relevant part, the trial court found and held as follows:


              6.       . . . Glessner testified at the hearing that she had
                       previously believed that the child’s mental and emotional
                       health will be damaged by being required to spend time
                       with her father. . . . She further stated that Respondent
                       Father would not listen to the child’s concerns and would
                       simply state that he did nothing wrong. . . .

      Court of Appeals of Indiana | Memorandum Decision 67A04-1703-JP-633 | August 30, 2017   Page 5 of 11
                                                 ***


        8.       . . . Glessner has . . . expressed concerns that Respondent
                 Father is doing many of the same things that caused her to
                 believe that spending time with her father is damaging to
                 [D.E.’s] mental and emotional health. Included in those
                 concerns are that the Respondent father makes accusations
                 about the child being dressed inappropriately, that the
                 child cannot be trusted, grilling her about innocent posts
                 she makes on social media, and his controlling nature in
                 general that includes not allowing her to participate in
                 extra-curricular activities during his parenting time. That
                 Respondent father’s handling of such issues upsets the
                 child and causes her feelings of depression and anxiety, to
                 the point that on one visit, she became physically sick
                 before having to go to her Father’s home. Father’s
                 controlling nature seems to go beyond healthy parenting
                 and to the level of extreme misery for the child. Her
                 emotional development and well-being are severely
                 hampered by Father’s actions towards her.


        9.       . . . Glessner believes that the parenting time should be
                 scaled back and that overnights be suspended, until such
                 time that real progress is made by Father in
                 counseling. . . . Ms. Glessner opines that mother has been
                 doing the right things for the child, and the Court finds
                 nothing to refute that.


        10.      . . . Respondent Father’s intentions may be genuine but his
                 techniques continually strain his relationship and any
                 feeling of trust that the two of them can have. Father
                 seems to ignore the fact that the child is growing up and
                 wants to spend time with friends, as he previously stated,
                 that his time is exactly that, his time with the child and not
                 to take her places or let her have time with friends over.


Court of Appeals of Indiana | Memorandum Decision 67A04-1703-JP-633 | August 30, 2017   Page 6 of 11
        11.      . . . Mother states that it is so bad that the child does not
                 want to see Father at all. However, mother does continue
                 to encourage the child to see her father.


                                                 ***


        13.      . . . The child wants to continue to live with Mother and
                 does not want to spend the night at Father’s home. . . .


                                                 ***


                                            Judgement


        1.       . . . The Court concludes that the mental health of the
                 child is at risk given the testimony of mother, father, and
                 therapist.


        2.       The Court concludes that I.C. 31-17-4-2 and the
                 interpretation of Patton v. Patton, 48 N.E.3d 17 (Ind. Ct.
                 App. 2015), allows the Court that continuing overnight
                 visitation with the child and [F]ather is negatively affecting
                 the child’s mental and emotional development. Father
                 shall be entitled to parenting time with the child every
                 other Saturday from 8:00 a.m. until 5:00 p.m., and on [a]
                 mid-week day for up to four (4) hours. . . .


        3.       The Court concludes and Orders that the parties shall
                 continue family counseling/therapy with the ultimate goal
                 that Father have [parenting time pursuant to the] Indiana
                 Parenting Time Guidelines[;] how long that will take or if
                 that ever occurs, will be determined by how the parties
                 progress through counseling. . . . [T]he Court believes the
                 best person to determine how they are progressing is the
                 counselor. Overnights shall resume when the counselor

Court of Appeals of Indiana | Memorandum Decision 67A04-1703-JP-633 | August 30, 2017   Page 7 of 11
                        deems that Father and child have a positive relationship
                        and that overnights would no longer negatively affect the
                        child’s mental and emotional development. The frequency
                        and duration shall be left to the discretion of the
                        counselor. . . . The Court concludes that father most likely
                        needs to come to grips with the reality that the child is now
                        moving into young adulthood. She must be allowed some
                        freedom. It is a delicate balance between child freedom
                        and parental responsibility, however, through work with
                        the counselor, this Court believes that father will learn to
                        understand how/what “normal” teenagers’ activities
                        consist of. . . .


       Appealed Order p. 2-8. Father now appeals.


                                    Discussion and Decision
[10]   Father argues that the trial court erred by denying his petition to modify

       parenting time and by restricting the parenting time he was already exercising.

       Indiana “has long recognized that the rights of parents to visit their children is a

       precious privilege that should be enjoyed by noncustodial parents.” Duncan v.

       Duncan, 843 N.E.2d 966, 969 (Ind. Ct. App. 2006). Consequently, a

       noncustodial parent is generally entitled to reasonable visitation rights. Patton v.

       Patton, 48 N.E.3d 17, 21 (Ind. Ct. App. 2015).


[11]   When reviewing a trial court’s resolution of a parenting time matter, we will

       reverse only if the trial court made a manifest error. Id. If the record reveals a

       rational basis supporting the trial court’s determination, no error occurred. Id.

       In conducting our review, we will neither reweigh the evidence nor reassess

       witness credibility. Id. We will afford considerable deference to the trial court’s

       Court of Appeals of Indiana | Memorandum Decision 67A04-1703-JP-633 | August 30, 2017   Page 8 of 11
       findings in family law matters because “the trial court is in the best position to

       become acquainted with the relationship between parents and their children.”

       D.B. v. M.B.V., 913 N.E.2d 1271, 1274 (Ind. Ct. App. 2009).


[12]   Indiana Code section 31-17-4-2 provides that a trial 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.


       Our Supreme Court has noted that despite the statute’s use of the word

       “might,” the statute “requires evidence establishing that visitation ‘would’ (not

       ‘might’) endanger or impair the physical or mental health of the child.”

       Perkinson v. Perkinson, 989 N.E.2d 758, 763 (Ind. 2013) (quoting Stewart v.

       Stewart, 521 N.E.2d 956, 960 n.3 (Ind. Ct. App. 1988)).


[13]   Here, there is ample evidence in the record supporting the trial court’s

       conclusions that if Father’s parenting time with D.E. were not restricted, her

       mental and/or emotional health would be significantly impaired. Specifically,

       D.E.’s therapist testified that D.E. suffers from anxiety and depression

       stemming almost entirely from time spent with Father, particularly times when

       she has to spend the night at his home. D.E. had been improving to a point

       that overnight visits were resumed, and very quickly her mental and emotional

       well-being deteriorated significantly. Before, during, and after her overnight

       visits with Father, D.E. experienced vomiting, difficulty concentrating,
       Court of Appeals of Indiana | Memorandum Decision 67A04-1703-JP-633 | August 30, 2017   Page 9 of 11
       increased crying, and sleeplessness. Father called D.E. names and got angry

       when that behavior upset her; he also threatened to commit suicide if she

       became sexually active. Father was either unable or unwilling to work with

       D.E.’s therapist to ameliorate the situation and begin to repair his relationship

       with his daughter. This evidence readily supports the trial court’s conclusions

       that granting Father’s petition to modify parenting time would not have been in

       D.E.’s best interests and that continuing to allow him to exercise overnight

       visitation with her would significantly impair her mental and/or emotional

       well-being. Father’s arguments to the contrary largely amount to a request that

       we reweigh evidence and reassess witness credibility—a request we decline.2


[14]   Father contends that the trial court erroneously relied on Patton in restricting his

       parenting time. In Patton, we affirmed the trial court’s decision to continue to

       require supervised parenting time until the non-custodial parent and child

       attended joint counseling and obtained the counselor’s written recommendation

       for unsupervised parenting time. 48 N.E.3d at 22. Father is correct that the

       underlying reason for the parenting time restriction is different in Patton as

       compared to the case at hand, but both cases included evidence from a

       counselor/evaluator that the requested parenting time created a risk to the

       minor child’s emotional development. Id. at 20, 22. The mere fact that the




       2
         Father highlights many of the trial court’s findings of fact, contending that the findings are erroneous. His
       argument in this regard, however, consists of directing our attention to evidence in the record supporting his
       position rather than the trial court’s findings. This is an inappropriate request that we reweigh evidence,
       which we decline to do. The testimony of Glessner and Mother readily supports the trial court’s findings of
       fact.

       Court of Appeals of Indiana | Memorandum Decision 67A04-1703-JP-633 | August 30, 2017             Page 10 of 11
       factual situations are different does not render Patton inapposite. Indeed, the

       trial court in this case took a proverbial page from Patton’s book by providing a

       clear road map for Father to remove the parenting time restriction. As in

       Patton, we find here that “the trial court took a thoughtful approach to the

       visitation issue and has struck a balance that adequately addresses the concerns

       of all, while still providing Father with opportunities for more rewarding

       parenting time with [the minor child], immediately and in the future.” Id. at 22.

       We find no error in the trial court’s reliance on Patton.


[15]   Finally, Father argues that the trial court erred by failing to address his

       contention that Mother has interfered in his relationship with D.E. and has

       alienated the child from him. We disagree, inasmuch as the trial court’s order

       explicitly noted that “mother has been doing the right things for the child” and

       that “mother does continue to encourage the child to see her father.” Appealed

       Order p. 4. These findings implicitly refute Father’s allegation that Mother has

       interfered in his relationship with D.E., and his arguments to the contrary

       amount to an improper request that we reweigh the evidence and reassess

       witness credibility.


[16]   The judgment of the trial court is affirmed.


       Bailey, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 67A04-1703-JP-633 | August 30, 2017   Page 11 of 11
