MEMORANDUM DECISION                                                                 FILED
Pursuant to Ind. Appellate Rule 65(D),                                         Oct 30 2017, 9:03 am

this Memorandum Decision shall not be                                               CLERK
                                                                                Indiana Supreme Court
regarded as precedent or cited before any                                          Court of Appeals
                                                                                     and Tax Court
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
Laura M. Longstreet                                       Bridgette F. Greene
Longstreet Law, LLC                                       Elkhart, Indiana
South Bend, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

April Gilbert,                                            October 30, 2017
Appellant,                                                Court of Appeals Case No.
                                                          20A03-1703-JP-627
        v.                                                Appeal from the Elkhart Superior
                                                          Court
Matthew Sweet,                                            The Honorable David C.
Appellee.                                                 Bonfiglio, Judge
                                                          The Honorable Dean O. Burton,
                                                          Magistrate
                                                          Trial Court Cause No.
                                                          20D06-1105-JP-319



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A03-1703-JP-627 | October 30, 2017            Page 1 of 13
                                Case Summary and Issue
[1]   Matthew Sweet (“Father”) and April Gilbert (“Mother”) are the parents of

      R.S., born in November 2009. Father’s paternity was established in 2011, and

      in 2014, the parties were granted joint legal custody of R.S., with Mother

      having primary physical custody and Father exercising standard parenting time.

      In December 2015, Father filed a petition to modify custody, and physical

      custody was temporarily changed to Father pending a full evidentiary hearing.

      After the hearing in December 2016, the trial court found it would be in R.S.’s

      best interests to permanently remain in Father’s custody. Mother appeals,

      raising several issues for our review, which we consolidate and restate as:

      whether the trial court abused its discretion in modifying custody from Mother

      to Father. Concluding the trial court did not abuse its discretion in modifying

      custody, we affirm.



                            Facts and Procedural History
[2]   R.S. was born on November 22, 2009. Father’s paternity of R.S. was

      established in 2011, and he was ordered to pay child support. Mother retained

      legal and physical custody of R.S. In 2014, on Father’s motion, the trial court

      ordered the parties to share joint legal custody, with physical custody remaining

      with Mother. Mother and R.S. resided with Mother’s parents; all three adults

      were smokers and smoked in the house in R.S.’s presence. R.S. has asthma

      which her pediatrician called “poorly controlled” due to being exposed to

      “heavy amounts” of cigarette smoke in her home. Appellee’s Amended

      Court of Appeals of Indiana | Memorandum Decision 20A03-1703-JP-627 | October 30, 2017   Page 2 of 13
      Appendix, Volume 2 at 12. Despite R.S.’s doctor attempting to counsel Mother

      about the connection between R.S.’s asthma and her exposure to second hand

      smoke, Mother “chooses not to believe” her smoking is a trigger. Id. R.S.

      began kindergarten in fall of 2015, and by the first week in December, she had

      twenty-seven absences and was tardy fourteen times. Many of her absences

      were due to her being sick.


[3]   On December 17, 2015, Father filed a Motion to Modify Custody alleging there

      had been a substantial change in circumstances that made Mother’s physical

      custody of R.S. no longer in the best interests of the child because of her poor

      health and poor school attendance while in Mother’s care. The trial court held

      an emergency hearing on December 29, 2015, at which time the court noted

      R.S.’s physical well-being “is certainly at risk in mother’s care.” Transcript,

      Volume I at 10. The trial court ordered R.S. to be immediately placed in

      Father’s care pending an evidentiary hearing. Mother was ordered to exercise

      her parenting time “outside of her home and no overnights.” Id. Mother

      moved out of her parents’ home shortly thereafter. In February of 2016, the

      guardian ad litem (“GAL”)1 filed a report with the court after visiting Mother’s

      new home. The GAL found no indication anyone smoked inside the home.

      The GAL observed that Mother “is willing to offer [R.S.] a smoke free

      environment” and recommended that Mother be granted standard parenting

      time including overnights. Appellee’s Amended App., Vol. 2 at 3. The GAL



      1
          The GAL was also serving in the capacity of parenting time coordinator for these parties.


      Court of Appeals of Indiana | Memorandum Decision 20A03-1703-JP-627 | October 30, 2017          Page 3 of 13
      also recommended R.S. be allowed to visit with her maternal grandparents

      during Mother’s parenting time for short periods of no more than one to two

      hours “so long as there is no smoking in the home.” Id. The trial court adopted

      the GAL’s recommendations.


[4]   Due to various continuances requested by the parties, the evidentiary hearing

      on Father’s motion to modify custody was not held until December 27 and 28,

      2016. The GAL testified to changes in R.S. since the temporary change of

      custody: R.S.’s “asthma improved tremendously. [Her] school attendance

      improved tremendously.” Tr., Vol. I at 20; see also Exhibits Volume I,

      Respondent’s Exhibit A (patient notes from visits to R.S.’s pediatrician noting

      on December 31, 2015, R.S. had a “severe[,] persistent” cough; on January 25,

      2016, that R.S.’s asthma is “improving” and the symptoms are “occasional”;

      and on February 24, 2016, that R.S. “has been doing better overall”). The

      GAL also noted that despite Mother’s testimony that she had stopped smoking,

      and despite the GAL’s recommendation and the trial court’s order that R.S.’s

      time at her grandparents’ house be limited, Mother had allowed R.S. to spend

      significant time in the grandparents’ home, including overnights. The GAL did

      acknowledge that Father also smokes, but noted “a vast difference” between

      Mother’s behavior and Father’s in that he only smokes outside of the home and

      does not allow anyone else to smoke inside the house whether R.S. is there or

      not. Tr., Vol. I at 55.


[5]   After the temporary change of custody, R.S. began counseling at the GAL’s

      suggestion. The counselor communicated to the GAL that R.S.’s most

      Court of Appeals of Indiana | Memorandum Decision 20A03-1703-JP-627 | October 30, 2017   Page 4 of 13
      significant source of stress was the conflict between her parents, generally

      instigated by Mother. The GAL testified to her concern that Mother does not

      understand that R.S. needs to be protected from the conflict between the parties

      and noted that Mother “completely disregards what is best for [R.S.] and does

      what she wants to do.” Id. at 67. And although the GAL had also taken issue

      with some of Father’s actions, the “difference is [Father] is open to suggestion;

      [Mother] is not.” Id.at 69. Ultimately, the GAL recommended that Father be

      granted permanent primary physical and legal custody of R.S. with Mother to

      have standard parenting time with limited visits to the grandparents’ home.


[6]   Following the hearing, the magistrate took the matter under advisement and on

      February 21, 2017, issued extensive findings. The magistrate disagreed with

      Mother’s position that just because she had moved out of her parents’ home

      and stopped smoking “she has resolved the issues that gave rise to the

      temporary transfer of custody and that custody should be returned to her,” and

      recommended, “based upon the examination of the factors set forth in I.C. 31-

      14-13-6,” that R.S.’s “continuation of custody with her Father would be in her

      best interests.” Appealed Order at 4, 6. The magistrate’s recommendation was

      approved by the court. Mother now appeals.



                                 Discussion and Decision
                                      I. Standard of Review
[7]   We review custody modifications for an abuse of discretion “with a preference

      for granting latitude and deference to our trial judges in family law matters.”
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      Werner v. Werner, 946 N.E.2d 1233, 1244 (Ind. Ct. App. 2011), trans. denied.

      This is because it is the trial court that observes the parties’ conduct and

      demeanor and hears their testimony. In re Paternity of C.S., 964 N.E.2d 879, 883

      (Ind. Ct. App. 2012), trans. denied. We will not reweigh the evidence or judge

      the credibility of the witnesses. Id. Rather, we will reverse the trial court’s

      custody determination only if the decision is “clearly against the logic and effect

      of the facts and circumstances or the reasonable inferences drawn therefrom.”

      Id. “[I]t is not enough that the evidence might support some other conclusion,

      but it must positively require the conclusion contended for by the appellant

      before there is a basis for reversal.” Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind.

      2002).


[8]   The trial court made special findings and conclusions thereon pursuant to

      Indiana Trial Rule 52(A). In reviewing findings made pursuant to Rule 52, we

      first determine whether the evidence supports the findings and then whether the

      findings support the judgment. K.I. ex rel. J.I. v. J.H., 903 N.E.2d 453, 457 (Ind.

      2009). On appeal we “shall not set aside the findings or judgment unless clearly

      erroneous, and due regard shall be given to the opportunity of the trial court to

      judge the credibility of the witnesses.” Ind. Trial Rule 52(A). A judgment is

      clearly erroneous when there is no evidence supporting the findings or the

      findings fail to support the judgment. K.I., 903 N.E.2d at 457. A judgment is

      also clearly erroneous when the trial court applies the wrong legal standard to

      properly found facts. Id.




      Court of Appeals of Indiana | Memorandum Decision 20A03-1703-JP-627 | October 30, 2017   Page 6 of 13
                                  II. Modification of Custody                           2




[9]   Following the establishment of paternity, a trial court may modify a child

      custody order only upon a showing that modification is in the child’s best

      interest and that there has been a substantial change in one or more of the

      factors that the court may consider under Indiana Code section 31-14-13-2.

      Ind. Code § 31-14-13-6. Section 31-14-13-2 provides that the court “shall

      consider all relevant factors,” including specifically:


               (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 interest.




      2
        None of the cases cited by Mother in her brief and reply brief include pinpoint citations. See Ind. Appellate
      R. 22(A). In addition, the Table of Authorities in Mother’s briefs are not prepared alphabetically. See A.R.
      46(A)(2). These deficiencies hampered our review and we direct counsel’s attention to the appellate rules for
      future filings in this court.

      Court of Appeals of Indiana | Memorandum Decision 20A03-1703-JP-627 | October 30, 2017             Page 7 of 13
                (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, and if the evidence is sufficient, the court shall
                consider the factors described in section 2.5(b) of this chapter.


       The party seeking modification of an existing custody order bears the burden of

       demonstrating that the existing custody order should be altered. Kirk, 770

       N.E.2d at 307.


[10]   Mother argues the trial court erred in finding that there had been a substantial

       change in circumstances warranting the modification of custody and in finding

       that R.S.’s best interests were served by placing her in Father’s care. 3


[11]   The trial court acknowledged that “[b]oth parties have engaged in behavior that

       is disconcerting. . . . It appears that both parties share some blamed [sic] for



       3
         Father contends Mother’s appeal should be dismissed as moot because approximately two weeks after the
       trial court entered the order on appeal, Father filed a motion to modify Mother’s parenting time due to
       Mother’s “caustic comments” and “disparaging statements” to R.S. about Father and about the trial court’s
       custody decision. Appellee’s Amended App., Vol. 2 at 4. The trial court scheduled an evidentiary hearing
       and temporarily ordered Mother’s visitation to be supervised “at the highest level available” – sight and
       sound – to monitor Mother’s “words and manner of communicating those words” to R.S. Id. at 5. Prior to
       the hearing, the parties agreed the court’s temporary order on parenting time would remain in full effect and
       Mother’s visitation would continue to be supervised until otherwise ordered by the court. Id. at 7. Father
       contends we are therefore unable to grant Mother the relief she seeks. We disagree. The parties entered into
       the agreement knowing the issue of custody was on appeal. In entering the agreement, Mother did not agree
       to dismiss her appeal and she did not agree that custody should remain with Father.

       Court of Appeals of Indiana | Memorandum Decision 20A03-1703-JP-627 | October 30, 2017           Page 8 of 13
their inability to co-parent.” App. of Appellant, Vol. II at 7-8. With that in

mind, the trial court made explicit findings about each of the factors weighing

on a modification decision:


        (1) The age and sex of the child. . . . [R.S.’s] age and sex do not
        appear to have a significant bearing on either parent’s ability to
        act as custodian in this case.


        (2) The wishes of the child’s parent or parents. The evidence
        reflects that both parents are closely bonded with [R.S.] and both
        love her and desire to have custody of her.


        (3) The wishes of the child . . . . Little evidence was produced as
        to [R.S.’s] desires; however, this Court does note an examination
        of the notes from [R.S.’s] counselor [indicate] a desire to return
        to her mom’s. She also indicated that she would be sad but okay
        with a decision that she remain with her father.


        (4) The interaction and inter-relationship of the child [with
        significant persons]. This Court finds that generally [R.S.]
        interacts very well with both parents; however, arguments
        repeatedly occur in front of [her], and this Court believes that the
        evidence reflects that the Mother is primarily at fault in
        instigating, or escalating, the arguments. Again, both parties,
        however, must share some responsibility for a failure to co-
        parent. . . . [O]ther persons who appear to have a significant
        impact in [R.S.’s] life include [R.S.’s] maternal grandfather with
        whom [R.S.] appears to be closely bonded with and [Father’s]
        current girlfriend, again, with whom [R.S.] appears to be bonded
        with.


        (5) The child’s adjustment to [home and school]. This court
        finds that [R.S.’s] repeated exposure to smoking in her living
        environment with Mother to be a concern by this Court. . . .

Court of Appeals of Indiana | Memorandum Decision 20A03-1703-JP-627 | October 30, 2017   Page 9 of 13
        [T]his Court is very concerned and finds that since the original
        custody Order . . . [R.S.] has missed significant amounts of
        school while in the Mother’s primary physical care. This Court
        would consider such factor alone to be a substantial change in
        circumstances warranting modification of custody in this cause.


        (6) The mental and physical health of all individuals involved.
        Again, this Court has grave concerns about [R.S.’s] health while
        in her Mother’s custody. This Court finds Mother’s refusal to
        modify her environment to eliminate [R.S.’s] exposure to smoke
        to be a substantial change in circumstances warranting
        modification and placement of [R.S.] with her Father. Evidence
        was presented as to the Mother’s diagnosis of a bipolar disorder,
        however, this Court cannot find that this factor alone warrants a
        modification of custody. This Court does have concerns as to
        Mother’s testimony that she recently took herself off of a
        prescribed medication for her mental health.


        (7) Evidence of a pattern of domestic or family violence by either
        parent. No evidence was presented as to domestic or family
        violence. . . .


        (8) No evidence was presented that the child was cared for by a
        de facto custodian.


        Based upon the foregoing, this Court finds that modification of
        custody would be appropriate and that it would be in [R.S.’s] best
        interests to remain in the care and custody of her Father. This
        Court also finds that based upon the communication between the
        parties, there appears to be an inability by these parents to
        effectively co-parent and, based upon the guardian ad litem’s
        recommendation and testimony, this Court finds that joint legal
        custody would not be appropriate. This Court finds specifically
        when considering the factors set forth in I.C. 31-17-2-15 that the
        parties in this case are simply not willing or able at this time to

Court of Appeals of Indiana | Memorandum Decision 20A03-1703-JP-627 | October 30, 2017   Page 10 of 13
               communicate effectively to cooperate in advancing [R.S.’s]
               welfare.


       Id. at 8-11.


[12]   Mother does not argue that any of the trial court’s findings are erroneous, and

       there is no conflicting evidence about any of the factors. “[A] change in

       circumstances must be judged in the context of the whole environment, and the

       effect on the child is what renders a change substantial or inconsequential.”

       Steele-Giri v. Steele, 51 N.E.3d 119, 127 (Ind. 2016) (internal quotation and

       citation omitted). The evidence at trial showed that in the six months preceding

       Father’s petition, R.S.’s constant exposure to smoke had resulted in severe

       asthmatic reactions, she had visited the doctor six times, had missed twenty-

       seven days of school, and was tardy fourteen times. This evidence implicates a

       change in both R.S.’s physical health and her adjustment to her home and

       school since the original custody order in 2014. Despite medical advice,

       Mother was unwilling to change her behavior or to remove R.S. from her

       grandparents’ home. It was only after the trial court made a temporary change

       in custody that Mother took the admonitions seriously enough to stop smoking

       and move to a smoke-free environment. Mother’s argument that in doing so,

       she “appropriately responded” to the trial court’s temporary custody order and

       has therefore “remed[ied] the issues presented” is misleading. Brief of

       Appellant at 21. The circumstances leading to the temporary and ultimately

       permanent change in custody were not a one-time occurrence. And despite the

       positive steps Mother took, she still takes R.S. to her grandparents’ home

       Court of Appeals of Indiana | Memorandum Decision 20A03-1703-JP-627 | October 30, 2017   Page 11 of 13
       frequently and does not limit her time there so as to also limit her exposure to

       smoke, which demonstrates Mother does not understand the true nature of the

       issue.


[13]   As for R.S.’s best interests, evidence of a child’s improving condition is a

       consideration in determining a child’s best interest. Wiggins v. Davis, 737

       N.E.2d 437, 442 (Ind. Ct. App. 2000). R.S.’s health and school attendance

       have both improved “tremendously” in Father’s custody. Tr., Vol. I at 20. The

       trial court also noted its concern over the parties’ “constant ongoing conflict”

       and Mother’s role as the instigator rather than the protector when it comes to

       shielding R.S. from that conflict. App. of Appellant, Vol. II at 7.


[14]   The “more stringent standard” for custody modifications has been met in this

       case. Steele-Giri, 51 N.E.3d at 124. The trial court did not abuse its discretion

       in finding that Father proved a substantial change in one or more of the relevant

       circumstances and further proved that a change of custody was in R.S.’s best

       interest.4



                                                  Conclusion




       4
         We note that a year passed between the “temporary” change of custody to Father and the trial court’s order
       making the change permanent. Such a lengthy delay flies in the face of our position that “permanence and
       stability are considered best for the welfare and happiness of the child.” Steele-Giri, 51 N.E.3d at 124. It is
       incumbent on all involved in a custody modification proceeding – the parties and the trial court – to see that
       custody matters are attended to promptly.

       Court of Appeals of Indiana | Memorandum Decision 20A03-1703-JP-627 | October 30, 2017            Page 12 of 13
[15]   There was ample evidence to support the trial court’s determination that a

       substantial change in one or more custody factors had occurred and that a

       modification of custody was in R.S.’s best interest. The judgment of the trial

       court is affirmed.


[16]   Affirmed.


       Riley, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A03-1703-JP-627 | October 30, 2017   Page 13 of 13
