MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                               Mar 03 2017, 5:59 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
Gregory K. Blanford                                      Robert J. Palmer
The Blanford Law Office                                  May Oberfell Lorber
South Bend, Indiana                                      Mishawaka, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

In re the Paternity of N.E., by                          March 3, 2017
Next Friend,                                             Court of Appeals Case No.
                                                         71A03-1605-JP-1066
                                                         Appeal from the Saint Joseph
Jody W. Elkins,                                          Superior Court
Appellant-Petitioner,                                    The Honorable Steven L.
                                                         Hostetler, Judge
        v.
                                                         Trial Court Cause No.
                                                         71J01-0905-JP-534
Jennifer L. Hahn, f/k/a Jennifer
L. Benson,
Appellee-Respondent



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 71A03-1605-JP-1066 | March 3, 2017            Page 1 of 10
                                          Case Summary
[1]   Jody Elkins (“Father”) appeals the trial court’s denial of his request to modify

      physical custody of his daughter, N.E. Father contends that the evidence does

      not support the court’s findings of fact and that the findings of fact do not

      support the judgment. Finding no error, we affirm.



                            Facts and Procedural History
[2]   Jennifer Hahn (“Mother”) gave birth to a daughter, N.E., on March 21, 2008.

      At the time of N.E.’s birth, Mother and Father were no longer romantically

      involved, but Father established paternity in 2009. Since N.E.’s birth, Mother

      and Father have engaged in a custody battle. Both parents have alleged that the

      other has endangered N.E., including allegations of sexual and emotional

      abuse. As a result, N.E., who is currently eight years old, has been questioned

      multiple times by the Department of Child Services (DCS) and law-

      enforcement personnel, undergone six physical examinations and one

      psychosexual evaluation, and testified in court.

[3]   In May 2010, Mother and Father agreed to joint legal and physical custody,

      with each having equal parenting time. This agreement was in place for less

      than a year when, in January 2011, Father petitioned the court to modify

      physical custody and award him primary physical custody of N.E. Roughly

      two weeks before the hearing on Father’s motion, DCS received a report that

      Father had sexually molested N.E. Father’s parenting time was suspended


      Court of Appeals of Indiana | Memorandum Decision 71A03-1605-JP-1066 | March 3, 2017   Page 2 of 10
      during the investigation, and Mother was awarded sole legal custody. The

      court delayed the custody hearing pending DCS’s findings. The molestation

      claim was unsubstantiated, and the court reset the hearing. Approximately one

      week before the reset hearing, DCS received another report alleging that Father

      had sexually abused N.E. The court, again, delayed the hearing pending DCS’s

      findings. This claim was also unsubstantiated. In June 2013, a temporary

      order was entered allowing Father unsupervised parenting time every other

      weekend; his original motion to modify physical custody remained pending.

[4]   Mother and Father attended mediation to try and resolve their custody battle,

      but they were unsuccessful. In August 2014, following the unsuccessful

      mediation, the court appointed a Guardian Ad Litem (GAL) for N.E. and

      instructed the GAL to investigate the issues of custody and parenting time.

      While the GAL was conducting her investigation, N.E. began seeing a

      therapist. A month after N.E. started therapy, the GAL submitted her initial

      report to the court, recommending that Father have a few extra hours with N.E.

      on his parenting weekends.

[5]   During a therapy session in July 2015, N.E. told the therapist that she had lied

      when she said that Father had sexually abused her. The therapist informed

      Mother and Father that N.E. had recanted the allegations against Father (which

      had already been unsubstantiated by DCS). Mother asked N.E. why she lied

      about being abused. N.E. responded that she did not lie about the abuse, but

      rather Father had told her to recant and say that he did not abuse her. See Tr. p.

      265-66. Meanwhile, the GAL continued with her investigation, including

      Court of Appeals of Indiana | Memorandum Decision 71A03-1605-JP-1066 | March 3, 2017   Page 3 of 10
      talking with N.E.’s therapist, and submitted to the court a supplemental report

      in December 2015. The GAL again recommended that Father have more

      parenting time with N.E. However, the report explicitly stated that Father

      should not have primary physical custody, as requested in his motion to modify

      custody, because N.E. would perceive this change as a form of punishment and

      loss of Mother’s love.

[6]   In January 2016, N.E. began exhibiting behavioral problems—N.E. pulled

      down her pants to show her buttocks to some girls in her class; she wrote a note

      asking a classmate if he wanted to have sex with her; she had begun fighting

      classmates; and she threatened to kill herself if she had to go to Father’s house.

      As a result of these behaviors, N.E. was placed on medication. N.E.’s behavior

      improved drastically due to the medication, so much so that her teacher sent

      home a letter in March detailing how much better N.E. was doing in class. See

      id. at 259.


[7]   In April 2016, more than five years after filing a motion to modify custody, the

      court held a hearing on Father’s motion. Over the course of the two-day

      hearing, the court heard testimony from the GAL and N.E.’s therapist. Both

      testified that Mother and Father needed help parenting. Mother had made

      inappropriate comments to N.E. regarding these proceedings and led N.E. to

      believe that Mother lost her job because she had to go to court to fight for

      custody (Mother, in fact, had not lost her job). Father, on the other hand,

      continued to hold grudges against Mother and refused to co-parent with her.

      He videotaped every transfer of N.E., had not attended a school event since

      Court of Appeals of Indiana | Memorandum Decision 71A03-1605-JP-1066 | March 3, 2017   Page 4 of 10
      dropping N.E. off for her first day of first grade, and did not attend special

      events in N.E.’s life, such as school functions or soccer and baseball games.

      They also noted that N.E. had a strained relationship with Father’s wife. See id.

      at 54 (stepmother called N.E. a “liar” to her face, is overwhelmed by N.E., and

      needs support to help her parent); id. at 153 (stepmother told N.E. to “shut the

      F up”); id. at 158 (stepmother needs parenting classes to address her problems

      with N.E.). Following the hearing, the court received notice of allegations that

      stepmother struck N.E. on April 25 and 26, just days after the hearing ended.

      Appellant’s App. Vol. II p. 44.

[8]   Regarding physical custody, both the GAL and the therapist testified that N.E.

      was struggling emotionally due to the constant fighting between Mother and

      Father. They also stated that N.E. loves both of her parents, but N.E. is afraid

      that if Father is given primary physical custody she will never see Mother again

      and will perceive the change in custody as a form of punishment.

      Nevertheless, both the GAL and the therapist recommended (contrary to the

      GAL’s reports) that Father have primary physical custody of N.E. and that

      Mother have supervised parenting time for a few hours each week. The custody

      change was recommended as a way to force Mother to co-parent with Father.

      Even with the recommended change, both the GAL and the therapist stated

      that N.E. needed to maintain a relationship with Mother and continue to attend

      school in Mother’s district.

[9]   After the hearing, the trial court issued findings of fact and conclusions. The

      court ultimately ordered that Mother should retain primary physical custody of

      Court of Appeals of Indiana | Memorandum Decision 71A03-1605-JP-1066 | March 3, 2017   Page 5 of 10
       N.E. In reaching this conclusion, the court noted that the therapist’s

       “recommendations are subject to question.” Id. at 38. The court questioned the

       recommendations because: the therapist largely blamed Mother for N.E.’s

       issues and ignored that “Father’s responsibility is also readily apparent”; the

       therapist reached her “unusual” recommendation “not because she believes that

       parenting time by Mother would be harmful to [N.E.], but because she believes

       that is the only way Mother will become willing to co-parent [N.E.]”; and the

       therapist accepted “at face value [N.E.’s] recanting of her molestation report,”

       even though N.E. later recanted her recantation. Id. 37-38. The court also

       “carefully scrutinized” the GAL’s recommendations because they were based

       largely in part on the therapist’s recommendations and N.E.’s behavioral

       problems at school. Id. at 38. The court concluded that no evidence was

       presented that “N.E.’s problems at school are the result of being in Mother’s

       primary physical custody. Nor was there any objective evidence that [N.E.’s]

       problems would be solved by placing [her] in the primary physical custody of

       Father.” Id. However, evidence was presented to show that there has been

       “significant improvement now that [N.E.] is on medication.” Id. Based in part

       on the allegations that stepmother had recently struck N.E., the court ordered

       the GAL to investigate Father’s home and took away Father’s overnight

       parenting time. Father’s parenting time was reduced to every other Saturday

       and Sunday from 10:00 a.m. to 7:00 p.m.

[10]   Father appeals.




       Court of Appeals of Indiana | Memorandum Decision 71A03-1605-JP-1066 | March 3, 2017   Page 6 of 10
                                  Discussion and Decision
[11]   Father contends that the trial court erred when it denied his request to modify

       primary physical custody of N.E. Custody modifications are reviewed “for

       abuse of discretion with a preference for granting latitude and deference to our

       trial judges in family law matters.” In re Paternity of J.G., 19 N.E.3d 278, 282

       (Ind. Ct. App. 2014). When the trial court has entered findings of fact and

       conclusions, “we first must determine whether the evidence supports the

       findings and second, whether the findings support the judgment.” Albright v.

       Bogue, 736 N.E.2d 782, 787 (Ind. Ct. App. 2000). “We consider the evidence

       favorable to the judgment and all reasonable inferences following therefrom.”

       Id. “[W]e are constrained to neither reweigh evidence nor judge the credibility

       of witnesses.” Id.


[12]   The facts of this case sadly are the result of what happens when parents, after

       splitting up, refuse to co-parent and focus on the best interests of the child and

       instead continually place the child in the middle of their fighting. In these

       situations, the trial court is left to sort through a complex history of parental

       fights to determine what is in the best interests of the child. Here, the trial court

       was faced with an extensive history of allegations by both parents against one

       another claiming sexual and emotional abuse of N.E., and it ultimately

       concluded that N.E.’s best interests were served with Mother retaining primary

       physical custody. We find no reason to overturn the trial court’s decision.




       Court of Appeals of Indiana | Memorandum Decision 71A03-1605-JP-1066 | March 3, 2017   Page 7 of 10
[13]   Father makes several contentions to support his overall argument that the

       court’s findings of fact do not support its judgment.1 First, he argues that the

       court’s finding that “[t]he problems between the minor child and [stepmother]

       are particularly serious,” Appellant’s App. Vol. II p. 33, is not supported by

       evidence. But during the hearing, there was ample testimony that stepmother

       struggled to parent N.E., including calling N.E. a “liar” to her face and having

       parenting classes recommended to her in order to address her issues with N.E.

       Tr. pp. 54, 158. Furthermore, after the hearing concluded, the court received

       notice of allegations that stepmother had struck N.E. on two separate

       occasions. Appellant’s App. Vol. II p. 44. We find that there is sufficient

       evidence to support this finding.

[14]   Next, Father argues there is no evidence to support the trial court’s

       characterization that his responsibility for N.E.’s behavioral issues is “readily

       apparent.” Appellant’s Br. pp. 19-20. In his brief, Father acknowledges that

       the court’s statement goes on to say, “Father has not attended a single activity

       (including parent-teacher conferences) at [N.E.’s] school in the three years

       [N.E.] has attended school. Father has attended not a single soccer game and

       only one baseball game. Father has gone long stretches with no parenting time




       1
        One such contention asks this Court to review the record and enter additional findings of fact that
       support his modification request. This is another way of asking the Court to reweigh the evidence,
       which we will not do.



       Court of Appeals of Indiana | Memorandum Decision 71A03-1605-JP-1066 | March 3, 2017              Page 8 of 10
       at all.” Id.; Appellant’s App. p. 37. There is sufficient evidence to support the

       court’s characterization.

[15]   Last, Father contends that the multiple negative findings of fact regarding

       Mother’s parenting of N.E. are evidence that Mother should not have primary

       physical custody of N.E. The court’s findings of fact included statements that

       negatively reflected on both Mother’s and Father’s ability to parent. Trial

       courts are put in a difficult position when hearing custody cases like this one,

       where, instead of co-parenting for the sake of N.E., Mother and Father have

       continually engaged in legal battle after legal battle and placed N.E. at the

       center of their conflict. The trial court weighed the options before it and issued

       a well-thought-out decision that focused on the best interests of N.E. The

       judgment is based on those interests and the evidence presented. In its analysis

       the court stated, “But it is far from clear that Father having custody of N.E.

       would present a better situation. . . . [T]here was no evidence presented that

       N.E.’s problems at school are the result of being in Mother’s [primary] physical

       custody.” Id. at 37-38. Accordingly, the findings of fact are supported by

       evidence in the record, and the judgment is supported by the findings of fact.

[16]   Mother, in her response to Father’s appeal, points out that we have the

       discretion to remand this proceeding for an award of appellate attorney’s fees.

       We decline her invitation to remand.

[17]   Affirmed.




       Court of Appeals of Indiana | Memorandum Decision 71A03-1605-JP-1066 | March 3, 2017   Page 9 of 10
Bradford, J., and Brown, J., concur.




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