      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be
      regarded as precedent or cited before any                               FILED
      court except for the purpose of establishing                       Sep 29 2017, 11:16 am

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




      APPELLANT, PRO SE
      Daniel P. Foster
      Carlisle, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      In Re: The Paternity of E.B.:                            September 29, 2017

      Daniel P. Foster,                                        Court of Appeals Case No.
                                                               53A05-1703-JP-562
      Appellant,
                                                               Appeal from the Monroe Circuit
              v.                                               Court
                                                               The Honorable Bret Raper,
      Rebecca L. Baugh,                                        Commissioner
                                                               The Honorable Stephen R. Galvin,
      Appellee.
                                                               Judge
                                                               Trial Court Cause No.
                                                               53C07-1011-JP-845



      Pyle, Judge.


                                        Statement of the Case
[1]   Daniel Foster (“Father”) appeals pro se the trial court’s denial of his motion to

      correct error filed with respect to a judgment declining to order Rebecca Baugh
      Court of Appeals of Indiana | Memorandum Decision 53A05-1703-JP-562 | September 29, 2017    Page 1 of 11
      (“Mother”) to take the parties’ six-year-old daughter, E.B. (“E.B.”), to a prison

      facility for parenting time with Father. Concluding that the trial court did not

      abuse its discretion, we affirm the denial of Father’s motion to correct error.


[2]   Affirmed.


                                                         Issue
               Whether the trial court abused its discretion in denying Father’s
               motion to correct error.


                                                        Facts
[3]   In 2011, Father was convicted of attempting to murder Mother. The

      underlying facts of that conviction were set forth as follows in Father’s direct

      appeal:1

               On April 12, 2010, Rebecca Baugh was pregnant with Foster’s
               child. Baugh and Foster had been arguing over Foster’s
               relationship with another woman. Foster’s sister, Heather
               Foster, and his cousin, Wendy Campbell, were with Baugh and
               drove to Foster’s residence. Campbell was driving the truck,
               Baugh was sitting in the middle, and Heather was sitting on the
               passenger side. As they approached the driveway to Foster’s
               residence, Foster stepped from behind a tree, raised a gun, and
               shot at the truck. The bullet hit the windshield. Campbell
               decided to get out of the truck, but Baugh and Heather drove
               away and called the police. When the police arrived, Baugh had



      1
         Indiana Evidence Rule 201(d) provides that “[j]udicial notice may be taken at any stage of the proceeding,”
      which include appeals. Banks v. Banks, 980 N.E.2d 423, 426 (Ind. Ct. App. 2012), trans. denied. See also Fisher
      v. State, 878 N.E.2d 457, 462 (Ind. Ct. App. 2007), trans. denied, (concluding that this Court could take
      judicial notice of the record in Fisher’s original appeal).

      Court of Appeals of Indiana | Memorandum Decision 53A05-1703-JP-562 | September 29, 2017          Page 2 of 11
        pieces of glass in her ear and on her clothing. Baugh and
        Heather told the police officers that Foster had shot at the truck.
        Campbell refused to speak with the officers. The officers were
        unable to locate the bullet, but a roofer working on a nearby
        house reported hearing a gunshot. During an interview with
        police a few days later, Baugh claimed that Foster did not shoot
        at the truck.

        The State charged Foster with three counts of Class A felony
        attempted murder and three counts of Class C felony criminal
        recklessness. Foster and Baugh resumed their relationship and,
        during a bail hearing, Baugh testified that Foster did not shoot
        the truck. Heather and Campbell also testified at the bail hearing
        that Foster did not shoot the truck.

        At Foster’s jury trial, Baugh testified that she lied to the police
        officers during the second interview and that she lied at the bail
        hearing. Baugh testified that they decided to claim that a rock
        damaged the windshield. They fabricated estimates from two
        windshield repair businesses, including one from Thickstun Glass
        Company, and the fabricated estimates claimed that the rock was
        still embedded in the windshield at the time of the estimate.
        John Chester, a forensic scientist with the Indiana State Police
        Laboratory, testified that the hole in the windshield was caused
        by a high-velocity, low-mass impact and that microscopic traces
        of lead, which were consistent with a bullet, were found in the
        hole. Another expert, John Larsen, also testified that the
        windshield was damaged by a bullet. Heather and Campbell
        testified for Foster, claimed that a rock damaged the windshield,
        and claimed that they obtained estimates for repairing the
        windshield, which allegedly still had the rock stuck in it at the
        time of the estimates. On rebuttal, the State called Thomas
        Thickstun, the owner of a company that allegedly gave Foster an
        estimate to repair the windshield. Thickstun testified that his
        company did not produce Foster’s estimate to repair the
        windshield.


Court of Appeals of Indiana | Memorandum Decision 53A05-1703-JP-562 | September 29, 2017   Page 3 of 11
              The jury found Foster guilty of Class A felony attempted murder
              of Baugh and all three counts of Class C felony criminal
              recklessness. The jury found Foster not guilty of the attempted
              murder of Heather and Campbell. After Foster’s March 2011
              sentencing, he filed a motion to correct error based on allegedly
              newly discovered evidence. Foster submitted affidavits from
              Heather and Campbell. In her affidavit, Heather claimed that she
              lied in her testimony at the trial, that Foster did shoot at the truck
              but that Heather, Campbell, and Baugh were inside of the house
              at the time, and that she fabricated the windshield estimates. In
              her affidavit, Campbell claimed that Foster probably did shoot at
              the truck but that Heather, Campbell, and Baugh were inside of
              the house at the time and that she lied about a rock hitting the
              windshield. The trial court denied Foster’s motion to correct
              error.

      Foster v. State, No. 53A01-1105-CR-222, *2-4 (Ind. Ct. App. Jan 9, 2012).


[4]   Foster is currently incarcerated at the Wabash Valley Correctional Facility. In

      September 2016, Father filed a verified petition for parenting time with E.B.

      pursuant to INDIANA CODE § 31-14-14-1 wherein he requested “visitation with

      the minor child.” (App. 10).


[5]   At a hearing on the petition, Mother testified that she wanted E.B. to maintain

      a relationship with Father. According to Mother, she had read Father’s letters

      to E.B. and allowed E.B. to speak to Father on the telephone every week.

      However, after Mother and Father had a disagreement, Father stopped

      telephoning. E.B. was confused and wondered “why is daddy not calling?”

      (Tr. 7). Before the disagreement, Mother had also taken E.B. to the

      correctional facility to visit Father. However, Mother explained that the trip



      Court of Appeals of Indiana | Memorandum Decision 53A05-1703-JP-562 | September 29, 2017   Page 4 of 11
      was expensive because she was “supporting [E.B.] by herself” and that she did

      not like taking E.B. into the prison. (Tr. 8).

[6]   During the hearing, Father asked that he be allowed to send his daughter letters

      and gifts, such as handkerchiefs with drawings. Father also asked to be allowed

      to telephone E.B. once a month at an established time. Lastly, Father asked to

      see his daughter once a month at the prison. He explained that his mother

      (“Paternal Grandmother”) visited once a month and would be willing to

      transport E.B. to the visit.

[7]   Mother agreed to give E.B. letters and gifts sent from the prison and to make

      E.B. available for a monthly telephone call from Father. She asked the trial

      court to allow her time to see how the telephone calls went before ordering

      visitation at the prison. If the telephone calls went well, Mother agreed to take

      E.B. to the prison to visit with Father one time per month. Mother did not

      want Paternal Grandmother to transport E.B. to the prison because Paternal

      Grandmother typically wanted to discuss Father’s court case with Mother in

      front of E.B. Mother explained that she had given Paternal Grandmother three

      different opportunities to visit with E.B. and had informed Paternal

      Grandmother that she was not to discuss the case. However, Paternal

      Grandmother had “held [E.B.] for thirty seconds, passed her to her daughter,

      and then started going on about [Mother] and how [she had] put her son in

      prison for the rest of his life . . . .” (Tr. 22).




      Court of Appeals of Indiana | Memorandum Decision 53A05-1703-JP-562 | September 29, 2017   Page 5 of 11
[8]    Father testified that his conviction for attempting to murder Mother had been

       affirmed on appeal and that he was working on a post-conviction relief petition.

       He explained that Mother had told two attorneys that she had “lied on [Father]

       at the trial . . . .” (Tr. 28). Father expected that the post-conviction petition

       would be ready for filing within a year.

[9]    Following the hearing, on January 4, 2017, the trial court issued an order

       allowing Father to continue to mail letters to E.B. The order also provided that

       Mother should facilitate one telephonic parenting time visitation on the first

       Monday of each month. Lastly, the court “decline[d], at [that] time, to require

       Mother to take [E.B.] to the DOC facility.” (App. 10). Specifically, the trial

       court explained as follows:

               Even though Mother has previously taken the child to see Father
               on two (2) instances, she indicates that she is not presently
               comfortable doing so as Father and Father’s family members
               have been ‘pressuring’ Mother to recant her earlier statements to
               law enforcement about the crime, which in turn would assist
               Father in his ongoing Post-Conviction Relief Petition.

       (App. 10). The order further explained that the matter of Father receiving

       parenting time visits at the prison would be revisited at a later date.

[10]   Father responded to the trial court’s order by filing a motion to correct error

       wherein he argued that the trial court had improperly restricted his parenting

       time when it “severely curtailed both [Father’s] and [E.B.’s] right to parenting

       time through visitation, by ordering parenting time, by phone calls and letters

       only . . . .” (App. 13). According to Father, the trial court had failed to make

       Court of Appeals of Indiana | Memorandum Decision 53A05-1703-JP-562 | September 29, 2017   Page 6 of 11
       the required specific finding of physical endangerment or emotional impairment

       to justify the restriction as is required by INDIANA CODE § 31-14-14-1. He

       asked the trial court to reconsider its decision to decline to order Mother to take

       E.B. to the prison to visit Father.

[11]   In its order on Father’s motion to correct error, the trial court conceded that it

       had failed to “articulate its specific finding of physical endangerment or

       emotional impairment in the order limiting/restricting [Father’s] parenting time

       visitation.” (App. 22). Thereafter, in this regard, the trial court set forth the

       following specific findings in support of its denial of Father’s motion to correct

       error:

                10. As noted in the court’s 01/04/17 order, Father is serving a
                lengthy sentence in the Indiana Department of Correction for the
                criminal offense of attempted murder, and, as previously noted,
                Mother was Father’s intended victim. Father’s propensity for
                violence, as manifested against Mother, causes the court to
                conclude that Father’s unrestricted parenting time with the child
                would in fact pose a serious threat to the child’s physical safety
                and well-being.


                11. Additionally, as was noted in the 01/04/2017 order, Father
                has made repeated attempts to convince Mother to recant her
                incriminating statements made against Father during the course
                of Father’s underlying criminal cause. Father has filed a Petition
                for Post-Conviction Relief in his criminal case, and Mother’s
                ‘cooperation’ is crucial to Father’s petition. The court finds
                Father’s actions toward Mother – both the criminal offense itself
                as well as subsequent communications – to be abhorrent and
                unacceptable.



       Court of Appeals of Indiana | Memorandum Decision 53A05-1703-JP-562 | September 29, 2017   Page 7 of 11
               12. Father’s post-conviction requests of Mother to recant her
               statements have caused tremendous stress for Mother. Mother is
               the sole caretaker and provider for the child, and Mother’s
               continued stress from Father’s action would most certainly have
               an adverse impact upon on the child as well.


               13. Given Father’s apparent indifference to lawful behavior as
               well as his lack of respect for Mother as evidenced by his requests
               for Mother to recant, it is reasonable to infer that Father would in
               likelihood make inappropriate comments/requests to the child
               during any physical parenting time, urging the child to convince
               Mother to recant her statements. Thus the court remains
               convinced that Father’s physical contact with the child would
               endanger the child’s emotional wellbeing.


       (App. 22-23). Father now appeals the denial of his motion to correct error.


                                                   Decision
[12]   At the outset, we note that Mother has failed to file an appellee’s brief. When

       an appellee fails to submit a brief, we need not undertake the burden of

       developing an argument for the appellee. Santana v. Santana, 708 N.E.2d 886,

       887 (Ind. Ct. App. 1999). Applying a less stringent standard of review, we may

       reverse the trial court if the appellant can establish prima facie error. Id.

       However, we may in our discretion decide the case on the merits. Kladis v.

       Nick’s Patio, Inc., 735 N.E.2d 1216, 1219 (Ind. Ct. App. 2000). We exercise our

       discretion here to consider the merits of the issue presented in this case.


[13]   We further note that Father has chosen to proceed pro se. It is well-settled that

       pro se litigants are held to the same legal standards as licensed attorneys. Twin


       Court of Appeals of Indiana | Memorandum Decision 53A05-1703-JP-562 | September 29, 2017   Page 8 of 11
       Lakes Reg’l Sewer Dist. v. Teumer, 992 N.E.2d 744, 747 (Ind. Ct. App. 2013).

       This means that pro se litigants are bound to follow the established rules of

       procedure and must be prepared to accept the consequences of their failure to

       do so. Shepherd v. Truex, 819 N.E.2d 457, 463 (Ind. Ct. App. 2004). We will

       not become an “advocate for a party, or address arguments that are

       inappropriate or too poorly developed or expressed to be understood.” Perry v.

       Anonymous Physician 1, 25 N.E.3d 103, 105 n. 1 (Ind. Ct. App. 2014), trans.

       denied, cert. denied.


[14]   Turning to the issue in this case, we note that Father appeals the denial of his

       motion to correct error pursuant to Indiana Trial Rule 59 regarding the trial

       court’s parenting time order. Our standard of review in such cases is well-

       established. We review a trial court’s ruling on a motion to correct error for an

       abuse of discretion. Old Utica Sch. Pres., Inc. v. Utica Twp., 7 N.E.3d 327, 330

       (Ind. Ct. App. 2014), trans. denied. An abuse of discretion occurs when the trial

       court’s decision is contrary to the logic and effect of the facts and circumstances

       before it or the reasonable inferences therefrom. Id.


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

       the best interests of the child. Rickman v. Rickman, 993 N.E.2d 1166, 1168 (Ind.

       Ct. App. 2013). Parenting time decisions are generally reviewed for an abuse of

       discretion. Id. If the record reveals a rational basis for the trial court’s

       determination, there is no abuse of discretion. Id. We will not reweigh the

       evidence or reassess the credibility of witnesses. Id.



       Court of Appeals of Indiana | Memorandum Decision 53A05-1703-JP-562 | September 29, 2017   Page 9 of 11
[16]   Indiana has long recognized that the right of parents to visit their children is a

       precious privilege that should be enjoyed by noncustodial parents. Patton v.

       Patton, 48 N.E.3d 17, 21 (Ind. Ct. App. 2015). INDIANA CODE § 31-14-14-1,

       which sets forth the visitation rights of a noncustodial parent in a paternity

       action, provides that a “non-custodial parent is entitled to reasonable parenting

       time rights unless the court finds, after a hearing, that parenting time might: (1)

       endanger the child’s physical health and well-being; or (2) significantly impair

       the child’s emotional development.” Even though this statute uses the term

       “might,” this Court has interpreted the statute to mean that a court may not

       restrict parenting time unless that parenting time would endanger the child’s

       physical health or well-being or significantly impair the child’s emotional

       development. Walker v. Nelson, 911 N.E.2d 124, 130 (Ind. Ct. App. 2009). “By

       its plain language, INDIANA CODE § 31-14-14-1 requires a court to make a

       specific finding of physical endangerment or emotional impairment prior to

       placing a restriction on the noncustodial parent’s visitation. In re Paternity of

       V.A.M.C., 768 N.E.2d 990, 1000 (Ind. Ct. App. 2002), reh’g granted on other

       grounds by 773 N.E.2d 359 (Ind. Ct. App. 2002).


[17]   Here, Father contends that the trial court “committed a reversible error in

       restricting [his] parenting time with his minor child because the evidence does

       not support” the trial court’s specific finding of physical endangerment or

       emotional impairment. (Father’s Br. 2). The trial court stated that Father’s

       propensity for violence as manifested against Mother as well as Father’s

       indifference to lawful behavior and his lack of respect for Mother supported its


       Court of Appeals of Indiana | Memorandum Decision 53A05-1703-JP-562 | September 29, 2017   Page 10 of 11
       finding that Father’s physical contact with E.B. would physically endanger or

       emotionally impair the child. Our review of the evidence reveals that Father

       shot at Mother, his sister, and his cousin while Mother was pregnant with E.B.

       Mother told the police and then testified at a bail hearing that Father did not

       shoot at her. At trial, however, she admitted that she had lied during her police

       interview and at the bail hearing and testified that Father had shot at her. At

       the hearing on Father’s petition, Father testified that Mother had told his post-

       conviction attorneys that she had lied at trial, suggesting that she had recanted

       her trial testimony. This evidence supports the trial court’s findings and its

       denial of Father’s motion to correct error. We find no abuse of the trial court’s

       decision.

[18]   Affirmed.


       Riley, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 53A05-1703-JP-562 | September 29, 2017   Page 11 of 11
