MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                          FILED
this Memorandum Decision shall not be                                     Jul 28 2020, 9:37 am

regarded as precedent or cited before any                                       CLERK
court except for the purpose of establishing                              Indiana Supreme Court
                                                                             Court of Appeals
                                                                               and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
Julianne L. Fox                                          Jonathan M. Young
Evansville, Indiana                                      Law Office of Jonathan M. Young,
                                                         P.C.
                                                         Newburgh, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In re the Matter of the Paternity                        July 28, 2020
of:                                                      Court of Appeals Case No.
L.W. and M.W. (Minor Children)                           19A-JP-2652
                                                         Appeal from the Vanderburgh
Aaron Williams,                                          Superior Court
                                                         The Honorable Sheila M.
Appellant-Petitioner,
                                                         Corcoran, Senior Judge
        v.                                               Trial Court Cause No.
                                                         82D01-1607-JP-926
Kayla Handy,
Appellee-Respondent,



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-JP-2652 | July 28, 2020                     Page 1 of 11
                                Case Summary and Issue
[1]   Aaron Williams (“Father”) and Kayla Handy (“Mother”) have two minor

      children together. Following an incident in which Mother’s then-boyfriend,

      Shastin Handy, physically abused one of the children, the trial court granted

      Father primary physical custody of the children with Mother having supervised

      visitation and prohibited any contact between the children and Handy. Mother

      subsequently filed a petition to modify parenting time. Following a hearing, the

      trial court issued an order granting Mother unsupervised parenting time and

      allowing contact between the children and Handy, now Mother’s husband.

      Father appeals and presents one issue for our review: whether the trial court

      abused its discretion in modifying Mother’s parenting time to allow contact

      between the children and Handy. Concluding the trial court did not abuse its

      discretion, we affirm.



                            Facts and Procedural History
[2]   Mother and Father are the unwed biological parents of M.W., born July 7,

      2012, and L.W., born September 16, 2013 (“Children”). Mother and Handy

      share one child together and Handy has custody of his two children from

      another relationship. Mother originally had primary physical custody of

      Children and Father exercised parenting time.


[3]   In March 2017, the Indiana Department of Child Services (“DCS”) received a

      report alleging that Handy physically abused M.W. Specifically, Handy had


      Court of Appeals of Indiana | Memorandum Decision 19A-JP-2652 | July 28, 2020   Page 2 of 11
      spanked her as a form of corporal punishment leaving bruises on her bottom.

      As a result, DCS opened a child in need of services case (“CHINS”).


[4]   On April 11, Father filed a Verified Petition for Emergency Change of

      Custody.1 In his petition, Father stated that Children had been placed with him

      temporarily through the CHINS matter, alleged that Handy physically abused

      M.W., and requested emergency custody of Children and a protective order

      against Handy. At a hearing in May, the parties agreed that Father would have

      temporary custody of Children, with Mother’s parenting time to be supervised

      by an agreed-upon third party. Handy was prohibited from being present

      during Mother’s visitation. Ultimately, Handy admitted to the allegations and

      DCS closed the CHINS case on May 23. At some point after the incident,

      Mother and Handy were married.2


[5]   On January 16, 2018, the trial court held a progress hearing and continued

      Father’s temporary custody. On December 13, 2018, the trial court held a

      contested hearing on several pending motions and on January 28, 2019, the trial

      court issued an order granting Father primary physical custody of Children and

      Mother supervised visitation; ordering that Father discuss any major decisions

      regarding education, non-emergency medical care, and religious matters with



      1
       The trial court assigned separate cause numbers for each child in this paternity action: 82D06-1607-JP-926
      for L.W. and 82D06-1607-JP-927 for M.W. The Chronological Case Summary and appealed order for each
      cause is identical. See Appellant’s Appendix, Volume II at 2-5, 6-28. A copy of Father’s petition for
      emergency custody was not included in the record. Pursuant to Indiana Evidence Rule 201, however, we
      have taken judicial notice of the record of the court below as necessary to inform our decision.
      2
          The record is unclear as to whether the two were married in December of 2017 or 2018.


      Court of Appeals of Indiana | Memorandum Decision 19A-JP-2652 | July 28, 2020                   Page 3 of 11
      Mother, but allowing Father to make the final decision; permitting Mother to

      attend Children’s activities; and prohibiting Handy from being present or in

      contact with Children. See Appellant’s App., Vol. II at 36-37.


[6]   On April 17, Mother filed her Motion to Set Aside Entry and Request for

      Clarification and Verified Petition to Modify Parenting Time and Child

      Support. See id. at 29.3 Regarding her petition to modify parenting time,

      Mother alleged “Father will only agree to the paternal grandmother or the

      maternal grandparents to act as a third-party supervisor. Due to the Father’s

      schedule and the schedules of the supervisors the Father will agree to

      supervising, [she] is not receiving her full allotment of parenting time.” Id. at

      30. As such, Mother requested that the court remove the supervision

      requirement and increase her parenting time.


[7]   The trial court held a hearing on Mother’s motion on August 12 and 28 and

      took the matter under advisement. On October 22, 2019, the trial court issued

      an order granting Mother’s petition to modify parenting time, which stated, in

      relevant part:


               [I]t is in the best interests of [Children] that Mother’s parenting
               time be modified. The Court finds that commencing on the date
               of this Order Mother shall have unsupervised parenting time with
               [Children] every other weekend beginning Friday after school
               day care until Sunday evening at 8:00 p.m. and every Wednesday



      3
       Mother later clarified that her motion to set aside judgment sought relief from a child support order. See
      Transcript of Evidence, Volume II at 32.

      Court of Appeals of Indiana | Memorandum Decision 19A-JP-2652 | July 28, 2020                     Page 4 of 11
              after school day care until 8:00 p.m. . . . [Handy] may be present
              during such parenting time if personally supervised by Mother or
              by a third party agreed upon by the parents. No one shall use
              corporal discipline on [Children]. [Handy]’s supervised
              parenting time will be terminated sixty days from this Order.


      Appealed Order at 1. Father now appeals.



                                 Discussion and Decision
                                     I. Standard of Review
[8]   “In all parenting time controversies, courts must give foremost consideration to

      the best interests of the child.” Hazelett v. Hazelett, 119 N.E.3d 153, 161 (Ind.

      Ct. App. 2019). When reviewing a parenting time issue, we give deference to

      the trial court’s determination and reverse only for an abuse of discretion. M.S.

      v. C.S., 938 N.E.2d 278, 285 (Ind. Ct. App. 2010). An abuse of discretion

      occurs when the trial court’s decision is clearly against the logic and effect of

      the facts and circumstances before the court or if the court misinterpreted the

      law. Hatmaker v. Hatmaker, 998 N.E.2d 758, 761 (Ind. Ct. App. 2013). “If there

      is a rational basis for the trial court’s determination, then no abuse of discretion

      will be found.” In re Paternity of C.H., 936 N.E.2d 1270, 1273 (Ind. Ct. App.

      2010), trans. denied. As such, “it is not enough on appeal that the evidence

      might support some other conclusion; rather, it must positively require the

      conclusion advanced by the appellant.” M.S., 938 N.E.2d at 285. We may not

      reweigh the evidence or judge the credibility of the witnesses. Downey v.

      Muffley, 767 N.E.2d 1014, 1017 (Ind. Ct. App. 2002).

      Court of Appeals of Indiana | Memorandum Decision 19A-JP-2652 | July 28, 2020   Page 5 of 11
                                        II. Parenting Time
[9]   We begin by addressing Father’s argument that the trial court “modified legal

      custody without a proper request before the court and without [his] knowledge

      to litigate the issue.” Appellant’s Brief at 12. Specifically, he contends:


              As a fit parent who has consistently made decisions in the best
              interests of his children, Father should be given deference in
              regard to any contact that [Handy] has with these children –
              especially in light of the physical abuse that occurred by [Handy].
              Father, who has sole legal custody did not agree to removing the
              no contact order, and he specifically requested to continue no
              contact with [Handy] who admittedly and unremorsefully
              physically abused one of these girls. Against Father’s wishes, the
              trial court granted third-party parenting time, specifically,
              “[Handy]’s supervised parenting time will be terminated sixty
              days from the date of this order.”


      Id. at 13 (record citations and emphasis omitted). Father’s assertions are

      incorrect. “Legal custody” refers to a parent’s authority and responsibility for

      making major decisions concerning his or her child’s upbringing, including

      education, health care, and religion. See Ind. Code § 31-9-2-67. And as the

      parent with sole legal custody, Father would be entitled to decide who his

      Children have contact with if the trial court had not weighed in by issuing a

      parenting time order. “A trial court is empowered to specify and enforce the

      visitation rights of the non-custodial parent pursuant to Indiana Code[,]”

      Perkinson v. Perkinson, 989 N.E.2d 758, 762 (Ind. 2013), and there is nothing to

      suggest that the trial court in this case did not have the right to weigh in on the

      matter. Mother filed a petition to modify parenting time and the trial court held

      Court of Appeals of Indiana | Memorandum Decision 19A-JP-2652 | July 28, 2020   Page 6 of 11
       a hearing, heard the evidence, and rendered a decision. The trial court did not

       modify legal custody and its decision does not, in any way, impact Father’s

       own parenting time with Children.


[10]   Similarly, we are unpersuaded by Father’s argument that the issue of the no

       contact provision in the parenting time order was not properly before the trial

       court and he did not have notice that the issue would be litigated at the hearing.

       See Appellant’s Br. at 13-14. Although Mother did not specifically request that

       the no contact order be removed in her motion to modify parenting time, it is

       clear from our review of the transcript that Mother asked that the restriction be

       lifted and the parties litigated this issue. See Tr., Vol. II at 28 (Mother’s

       attorney stating that “[t]he order is that [Handy] have no contact with [Children

       and w]e’re asking for a change in that order”). At the hearing, after the parties

       agreed to unsupervised parenting time for Mother, Father’s attorney stated,

       “The only issue still before this Court is whether [Handy] will be permitted to

       be [present during Mother’s parenting time] or not.” Id. at 108-09. And the

       trial court made it clear that it would be “determining parenting time and

       whether it’s supervised or unsupervised and whether [Handy] can be present or

       not present.” Id. at 109. It is apparent that this was an issue properly before the

       court and Father presented multiple witnesses for purposes of demonstrating

       that the no contact provision should remain in place. Therefore, Father’s

       argument fails.


[11]   We now turn to the heart of this appeal, namely the removal of the contact

       order. Father does not challenge the trial court’s decision to allow Mother to

       Court of Appeals of Indiana | Memorandum Decision 19A-JP-2652 | July 28, 2020   Page 7 of 11
       have unsupervised parenting time; he challenges the trial court’s order only to

       the extent it allows Handy to have contact with Children. Father contends

       there was no rational basis for or any “evidence to support the removal of the

       no contact order or show the same to be in [C]hildren’s best interest.”

       Appellant’s Br. at 8. We disagree.


[12]   Indiana Code section 31-17-4-2 governs the modification, denial, and restriction

       of parenting time and provides: “The court may modify an order granting or

       denying parenting time rights whenever modification would serve the best

       interests of the child. However, the court shall not restrict a parent’s[4] 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.” “Even though the statute uses the word ‘might,’ this Court has

       previously interpreted the language to mean that a court may not restrict

       parenting time unless that parenting time ‘would’ endanger the child’s physical

       or emotional development.” Hatmaker, 998 N.E.2d at 761.


[13]   Father argues that “[t]here is a rational basis for the no contact order which

       does not restrict Mother’s parenting time.” Appellant’s Br. at 11. However, the

       issue in this case is whether there is a rational basis for the trial court’s order

       effectively removing the no contact order, not an analysis of the previous

       parenting time order containing the no contact order. The order at issue




       4
           “Parent” is defined as “a biological or an adoptive parent.” Ind. Code § 31-9-2-88(a).


       Court of Appeals of Indiana | Memorandum Decision 19A-JP-2652 | July 28, 2020                Page 8 of 11
       requires that contact between Handy and Children be supervised for sixty days

       and allows unsupervised contact thereafter.


[14]   Here, the trial court concluded that modification of its previous parenting time

       order, which required Mother’s parenting time to be supervised and prohibited

       any contact between Children and Handy, should be modified. The record

       shows that in March 2017, Handy spanked one of the Children as a form of

       corporal punishment. DCS intervened and opened a CHINS case, which

       caused the restriction to be implemented immediately after the incident.


[15]   At the time of the most recent hearing, the CHINS case had been closed for

       over two years. And since the incident, Handy has not had any contact with

       Children. Mother and Handy both testified that they have not used corporal

       punishment or any other form of inappropriate discipline with children in their

       household since the incident. See Tr., Vol. II at 28, 50, 54. Mother testified,

       “Our discipline, if the children get in trouble or anything, it is a time out or

       we’ll take away their Nintendo Switch or no movie at bedtime.” Id. at 25.

       When asked what she had learned by going through the CHINS process, she

       stated: “To be a lot more patient, that’s for sure. And that if the children are

       acting out or they get in trouble, it is best to just take a deep breath, reevaluate

       the situation and then handle it appropriately.” Id.


[16]   In the event Handy were to use corporal punishment, Mother stated she “would

       immediately put a stop to it[,] would probably get a hold [sic] of authorities to

       handle the situation” and prevent it from escalating. Id. at 27. She further


       Court of Appeals of Indiana | Memorandum Decision 19A-JP-2652 | July 28, 2020   Page 9 of 11
       testified that she and the children “wouldn’t be in the house or we would figure

       out ways to take steps to better [Handy.]” Id.


[17]   Mother does not believe it is in Children’s best interest for Handy to be

       prohibited from having contact with them. She explained, “In the beginning, [it

       was] possibly [in their best interest], but since it’s been so long, I feel like there

       should be no reason that they don’t have any contact” with him. Id. at 29.

       Handy also believes it is in Children’s best interests to have a relationship with

       him. At the hearing, Handy was asked what he has done to educate himself

       since the incident. He responded, “I took part of a class that [DCS] ordered me

       to take, but it ended up interfering with my job. And I learned a few things

       from that.” Id. at 54. He learned how to handle various stressors in his life and

       as a result, he and Mother “changed [their] whole discipline technique.” Id.

       They do not “put [their] hands on the children” and instead, they discipline the

       children with time outs or not allowing them to go somewhere on the weekend

       or watch a movie at night. Id.


[18]   Ultimately, the record establishes that the incident occurred over two years ago.

       Since that time, Mother and Handy have gotten married, ceased all corporal

       punishment, learned how to handle stress, and have been able to appropriately

       discipline their children by taking away their Nintendo, placing them in time

       out, or not allowing them to do certain activities. It is clear the trial court found

       this evidence convincing, concluded modification of parenting time was in

       Children’s best interests, and modified parenting time accordingly. To illustrate

       there is no rational basis for the order, Father points to several witnesses,

       Court of Appeals of Indiana | Memorandum Decision 19A-JP-2652 | July 28, 2020   Page 10 of 11
       primarily his family, who testified that it was not in Children’s best interests to

       have contact with Handy. Father’s argument, however, is merely a request for

       this court to reweigh the evidence in his favor, which we cannot do. See

       Downey, 767 N.E.2d at 1017. We afford great deference to the trial court’s

       decision as it was in the best possible position to evaluate the evidence and

       judge the credibility of the witnesses. See M.S., 938 N.E.2d at 285. Because our

       review of the record reveals a rational basis for the trial court’s parenting time

       decision, we cannot conclude the trial court abused its discretion.



                                               Conclusion
[19]   A rational basis supports the trial court’s parenting time order and therefore, the

       trial court did not abuse its discretion. Accordingly, we affirm.


[20]   Affirmed.


       May, J., and Vaidik, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-JP-2652 | July 28, 2020   Page 11 of 11
