MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                              FILED
regarded as precedent or cited before any                      Jul 05 2017, 8:39 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
Anthony J. Saunders
New Castle, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

D.P.,                                                    July 5, 2017
Appellant-Respondent,                                    Court of Appeals Case No.
                                                         33A04-1702-DR-323
        v.                                               Appeal from the Henry Circuit
                                                         Court
A.L.,                                                    The Honorable Kit C. Dean Crane,
Appellee-Petitioner                                      Judge
                                                         Trial Court Cause No.
                                                         33C02-1001-DR-14



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 33A04-1702-DR-323 | July 5, 2017     Page 1 of 4
[1]   In April 2010, the marriage of D.P. (Father) and A.L. (Mother) was dissolved.

      One child, Da.P. (Child), was born of the marriage in October 2006. Pursuant

      to the dissolution decree, Mother was Child’s primary legal and physical

      custodian, and Father had parenting time with Child every weekend. In April

      2011, Father pleaded guilty to Class D felony sexual battery 1 and is required to

      register as a sex offender until 2021.


[2]   On November 20, 2015, Mother filed a petition to, among other things, modify

      the parties’ parenting time arrangement. Specifically, she asked that Father’s

      parenting time be supervised by another adult. At the September 7, 2016,

      hearing on Mother’s motion, Mother testified that the two primary reasons

      supporting her modification petition are Father’s 2011 sexual battery conviction

      and an increase in negative behaviors from Child following the weekends he

      spends with Father. She testified that, after returning from parenting time with

      Father, Child frequently hits himself and makes statements about wishing

      violence on Father. Tr. p. 8. On one occasion, Child had to be admitted for

      two weeks at an inpatient mental health facility. Id.


[3]   Following the hearing, the trial court granted Mother’s motion, finding that

      “there has been a continuing and substantial change in circumstances” since the

      dissolution decree was issued. Appealed Order p. 1. The trial court focused on

      Father’s 2011 conviction and the requirement that he register as a sex offender




      1
          The victim was a 16-year-old individual who is unrelated to this appeal.


      Court of Appeals of Indiana | Memorandum Decision 33A04-1702-DR-323 | July 5, 2017   Page 2 of 4
      as the changed circumstances. The trial court then found that “[i]t is in the best

      interest of the minor child that [Father’s] overnight parenting time be suspended

      and [Father] shall have supervised visitation pursuant to the Indiana Parenting

      Time Guidelines. [Father’s] supervised visitation shall occur by an adult agreed

      upon by both parties until further Order of this Court.” Id. Father now

      appeals.


[4]   A decision about parenting time requires us to give foremost consideration to

      the best interests of the child. Meisberger v. Bishop, 15 N.E.3d 653, 656 (Ind. Ct.

      App. 2014). In conducting our review, we will neither reweigh evidence nor

      reassess witness credibility. Id. We will reverse only where the trial court’s

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

      before it or where the trial court errs as a matter of law. Id.


[5]   Indiana Code section 31-17-4-2 provides as follows:


              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
              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.


      We have found in the past that, in ruling on a motion to modify parenting time,

      the trial court must consider and make a finding as to potential endangerment

      of the child’s physical health or significant impairment of the child’s emotional

      development. Meisberger, 15 N.E.3d at 659-60 (finding that trial court could not

      restrict incarcerated father’s parenting time with child absent specific findings
      Court of Appeals of Indiana | Memorandum Decision 33A04-1702-DR-323 | July 5, 2017   Page 3 of 4
      regarding endangerment of physical health or significant impairment of

      emotional development); Rickman v. Rickman, 993 N.E.2d 1166, 1169 (Ind. Ct.

      App. 2013) (finding that mere fact that father was incarcerated on child

      molestation charges was insufficient to deny his petition for parenting time

      modification; further findings and factual basis were needed).


[6]   Here, as in Meisberger and Rickman, the trial court neglected to include a

      sufficient factual basis addressing the factors set forth in Indiana Code section

      31-17-4-2.2 While the trial court did reach a conclusion regarding the best

      interests of the child, it did not make a finding regarding endangerment of

      Child’s physical health or significant impairment of Child’s emotional

      development. Therefore, we remand for the trial court to determine and make

      one or more findings on these factors or, in its discretion, to conduct other

      proceedings consistent with this opinion.


[7]   The judgment of the trial court is remanded with instructions.


      Barnes, J., and Crone, J., concur.




      2
        We also note that the trial court found a continuing and substantial change in circumstances. To modify
      parenting time, however, the trial court need not make such a finding, which is required only for
      modification of custody. See Ind. Code § 31-17-2-21 (requiring the trial court to find a substantial change in
      statutory factors to modify custody). Instead, the trial court should focus on Indiana Code section 31-17-4-2,
      which governs parenting time modification.

      Court of Appeals of Indiana | Memorandum Decision 33A04-1702-DR-323 | July 5, 2017                 Page 4 of 4
