      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                        FILED
      regarded as precedent or cited before any                              Nov 27 2019, 10:15 am

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


      ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
      Andrea L. Ciobanu                                       Lauren E. Harpold
      Ciobanu Law, P.C.                                       Lainie A. Hurwitz
      Indianapolis, Indiana                                   Ruppert & Schaefer, P.C.
                                                              Indianapolis, Indiana


                                                IN THE
          COURT OF APPEALS OF INDIANA

      L.B.,                                                   November 27, 2019
      Appellant-Respondent,                                   Court of Appeals Case No.
                                                              19A-DC-993
              v.                                              Appeal from the Hamilton
                                                              Superior Court
      M.B.,                                                   The Honorable Jonathan M.
      Appellee-Petitioner                                     Brown, Judge
                                                              Trial Court Cause No.
                                                              29D02-1706-DC-5218



      Crone, Judge.


                                            Case Summary
[1]   L.B. (“Mother”) appeals the trial court’s findings of fact, conclusions thereon,

      and order (“the Order”), granting M.B. (“Father”) sole legal custody for

      Court of Appeals of Indiana | Memorandum Decision 19A-DC-993 | November 27, 2019                 Page 1 of 24
      medical decisions regarding their minor children, An.B., W.B., and As.B. (“the

      Children”) and ordering that the Children be vaccinated according to the

      recommendations of the American Academy of Pediatrics (“AAP”). Mother

      asserts that the trial court abused its discretion in excluding one of her expert

      witnesses and committed clear error in granting Father sole legal custody as to

      medical decisions and ordering that the Children be vaccinated. We conclude

      that the trial court did not abuse its discretion in excluding one of Mother’s

      expert witnesses and that the trial court’s decision to grant Father sole legal

      custody as to medical decisions is not clearly erroneous. Further, given that

      Father wants the Children to receive vaccinations, any error in the trial court’s

      order that the Children be vaccinated is harmless. Accordingly, we affirm.


                                 Facts and Procedural History
[2]   The undisputed findings of fact and the evidence most favorable to the trial

      court’s judgment show that Mother and Father were married in August 2002.

      An.B. was born in July 2006, W.B. was born in August 2008, and As.B. was

      born in January 2015. All three Children have health issues. An.B. has a

      history of food allergies, W.B. is diagnosed with Down’s Syndrome, and As.B.

      was born without a thyroid and with a congenital heart defect. Appealed Order

      at 3. As.B. requires the care of many specialists including an endocrinologist,

      pulmonologist, cardiologist, and a cranial facial team. Dr. Kristen Gollnick is

      the Children’s pediatrician. Dr. Damir Matesic is An.B.’s allergist. Dr. Zeina

      Nabhan is W.B.’s and As.B.’s pediatric endocrinologist. Dr. Catherine Rupp is

      a medical doctor who provided uninsured alternative allergy treatments to

      Court of Appeals of Indiana | Memorandum Decision 19A-DC-993 | November 27, 2019   Page 2 of 24
      An.B. starting in September 2016 and became involved in the Children’s

      thyroid care in October 2016. Dr. Rupp is not an endocrinologist. Dr. Casey

      Delcoco (formerly Reising) is a medical doctor Mother selected during the

      pendency of the case to oversee As.B.’s and W.B.’s thyroid care and

      simultaneously serve as the Children’s primary care provider with Dr. Gollnick.

      Dr. Delcoco is not an endocrinologist.


[3]   Until 2015 or 2016, the Children received scheduled vaccinations pursuant to

      the AAP. None of the Children experienced negative reactions due to the

      vaccinations they received. Id. at 61. However, Mother decided that she no

      longer wanted the Children to be vaccinated and began seeking various

      alternative medications and therapies. Mother sought and received a vaccine

      medical exemption for the Children from Dr. Rupp. Father wants the Children

      to continue to be vaccinated and disagrees with the general direction Mother

      has taken regarding the Children’s healthcare.


[4]   On June 5, 2017, Father filed a petition to dissolve the parties’ marriage. On

      August 30, 2017, the trial court approved the parties’ agreed provisional order,

      in which Mother and Father agreed to share legal and physical custody of the

      Children except as to their medical care and to undergo a custodial evaluation

      with Dr. Linda McIntire. Appellant’s App. Vol. 2 at 22. They also agreed that

      they had “differing and substantial views regarding the medical and health

      needs” of the Children and that they would maintain the status quo regarding

      the Children’s medical care until the final hearing. Id. On March 2, 2018, Dr.

      McIntire filed her custody evaluation with the trial court.

      Court of Appeals of Indiana | Memorandum Decision 19A-DC-993 | November 27, 2019   Page 3 of 24
[5]   On April 24, 2018, Father filed a motion to enforce the agreed provisional

      order, alleging that Dr. McIntire had recommended counseling for An.B. and

      had provided a list of doctoral-level psychologists, but the parties had been

      unable to agree to a therapist for An.B. Id. at 89. Father stated that he wished

      to use a provider recommended by Dr. McIntire and requested the court to

      select a therapist. Mother filed a response. Following a hearing, on June 22,

      2018, the trial court issued an order appointing a therapist for An.B. Id. at 103.


[6]   On July 13, 2018, Father filed a verified petition for rule to show cause, alleging

      that Mother had selected a new primary care provider, Dr. Delcoco, for the

      Children without his knowledge or consent and that Mother had not listed

      Father as an authorized party to receive the Children’s medical information in

      violation of the agreed provisional order. Mother filed a response. After a

      hearing on August 8, 2018, the trial court found Mother in contempt of the

      agreed provisional order for failing to notify Father of appointments she made

      with Dr. Delcoco and for changing the Children’s primary care provider

      without Father’s consent. Id. at 115. The trial court ordered that Dr. Gollnick

      remain the Children’s primary care provider. Id.


[7]   In August 2018, the parties each filed a final witness and exhibit list. Father

      filed a motion to exclude the testimony of three of Mother’s listed expert

      witnesses: Dr. Alvin Moss, Dr. Rupp, and Dr. Delcoco. Mother filed a

      response. Following a hearing, on September 21, 2018, the trial court entered

      an order granting Father’s motion in part and excluding Dr. Moss as a witness



      Court of Appeals of Indiana | Memorandum Decision 19A-DC-993 | November 27, 2019   Page 4 of 24
       on the basis that his testimony was irrelevant to the issues before the court. Id.

       at 139.


[8]    On September 25, 2018, the trial court approved the parties’ partial final

       agreement, which provided that the parties agreed to joint physical custody of

       the Children and joint legal custody on education and religious issues. Id. at

       140. In addition, the partial final agreement required that Mother and Father

       agree to a reunification therapist to repair the relationship between Father and

       An.B. Id. at 141. On November 6, 2018, Father filed a petition to enforce the

       partial final agreement, alleging that Mother had failed to respond to his

       attempts to communicate with her to select a reunification therapist. Id. at 152.

       At a later hearing, Mother and Father agreed to the selection of a therapist.


[9]    On November 29, 2018, the trial court entered a partial decree for dissolution of

       marriage, which granted Father’s petition for dissolution of the marriage and

       incorporated the partial final agreement. Id. at 162-63. The partial decree for

       dissolution awarded Mother and Father joint physical custody of the Children

       and joint legal custody on education and religious issues and declared that the

       only remaining issue for the court to decide was the issue of legal custody as to

       medical decisions for the Children.


[10]   On September 25 and 26, November 8 and 15, and December 6, 2018, the trial

       court heard evidence on the issues of legal custody as to medical decisions and

       whether the Children should receive vaccinations. Mother and Father each

       sought sole legal custody of medical decisions regarding the Children. Tr. Vol.


       Court of Appeals of Indiana | Memorandum Decision 19A-DC-993 | November 27, 2019   Page 5 of 24
       4 at 120; Tr. Vol. 6 at 237-38. Drs. McIntire, Gollnick, Rupp, and Delcoco

       testified. Dr. McIntire testified that in her opinion, Father should be granted

       sole legal custody for the Children’s medical care. Dr. Gollnick testified that it

       was her recommendation that the Children be vaccinated in accordance with

       the guidelines established by the AAP and the Centers for Disease Control

       (“CDC”). In addition, Dr. Gollnick testified that due to As.B.’s minor heart

       defect, As.B. was at a higher risk for some of the diseases the vaccinations

       protect against.


[11]   Dr. Rupp testified regarding her reasons for executing vaccine medical

       exemptions for the Children, but she also testified that her basis for signing the

       exemptions is inconsistent with the AAP guidelines and that the Children’s

       medical history does not exempt the Children from immunizations required by

       the guidelines set forth by the AAP and the CDC. Dr. Delcoco testified that

       she had only seen the Children for two appointments and she agreed with Dr.

       Rupp’s recommendation that the Children be medically exempt from

       vaccinations and explained the reasons for her agreement.


[12]   The parties requested findings of facts and conclusions thereon.1 Mother and

       Father each filed proposed findings and conclusions. On April 17, 2019, the

       trial court issued a sixty-nine-page Order granting Father sole legal custody as




       1
        Although Father states that he requested findings of facts and conclusions thereon, the chronological case
       summary indicates that Mother filed a motion for findings and conclusions on August 31, 2018. Appellant’s
       App. Vol. 2 at 8.

       Court of Appeals of Indiana | Memorandum Decision 19A-DC-993 | November 27, 2019               Page 6 of 24
to the Children’s medical decisions and ordering that the Children be

vaccinated in accordance with the schedules set forth by the AAP or otherwise

suggested by Dr. Gollnick or Dr. Stephanie Bergstein in the event that Dr.

Gollnick is unavailable. The Order provides in relevant part as follows:


        19. The record reflects that both parents are very knowledgeable
        concerning the medical care and needs of their children;


        ….


        33. The parties disagree concerning the overall health care
        necessary for the children, including which medical providers to
        use or how many medical providers are necessary; whether to
        utilize alternative and holistic medical treatments; whether to
        follow recommendations of providers; whether to use out of
        network and uninsured providers, treatments and interventions;
        what type of thyroid medication should be used for [As.B.] and
        [W.B.]; whether over the counter pain medication should be
        administered; and the children’s diet and use of toothpaste
        without fluoride;


        ….


        43. Dr. Rupp’s medical exemption suggests [An.B.] has had
        several anaphylactic reactions (none due to vaccinations).
        However, per the testimony of both parents, [An.B.] has only
        had two reactions when she accidentally ate food containing egg
        in her younger years and vomited as a result;


        ….




Court of Appeals of Indiana | Memorandum Decision 19A-DC-993 | November 27, 2019   Page 7 of 24
        105. Dr. Catherine Rupp maintains Rupp Hollistic Health and
        Integrative Medicine. From her testimony and her website, Dr.
        Rupp is a MD, who maintains a medical practice using
        alternatives to western medicine and a holistic medical practice.
        Dr. Catherine Rupp is no longer Board Certified in Pediatrics nor
        Internal Medicine and she testified she does not follow the
        guidelines set forth by the [AAP];


        106. Mother’s decision to obtain a vaccine medical exemption
        was not at the initiation of any of the children’s medical
        providers. ….


        ….


                               CONCLUSIONS OF LAW


        ….


        24. Mother and Father both believe they are fit and suitable to
        make medical legal custody decisions concerning the minor
        children, but it is apparent from the record that the parties are
        currently struggling to communicate effectively regarding the
        minor children. It does not appear they currently have the ability
        to work together for the best interests of their children at this
        time;


        ….


        26. Evidence was presented whereby Mother and Father
        communicated effectively with these decisions until the past three
        to four years, for which their disagreements as to the medical
        care for the children drove a wedge into their marriage which
        culminated in the instant cause of action;


Court of Appeals of Indiana | Memorandum Decision 19A-DC-993 | November 27, 2019   Page 8 of 24
        27. The parties generally agree on the medical issues that
        concern their children, but the issue of vaccinations and thyroid
        medication for the minor children form the bulk of the divide for
        the parties;


        ….


        30. Given these differing views, the parents are unable to
        cooperate to advance the children’s welfare with respect to health
        care. Mother often seeks alternative and holistic treatments, some
        of which can be expensive and unnecessary. The record
        demonstrates that Mother tends to seek out providers to endorse
        her medical views or a treatment she thinks the children need.
        On the other hand, Father seeks to follow the recommendations
        of the children’s on-going primary care doctor and specialists.
        Father objects to Mother’s desire to use alternative and non-
        conventional therapies, medications and doctors. While Mother
        may be an outstanding advocate for her children’s healthcare
        needs, it is not readily apparent whether that has netted better
        results or whether she is exposing her children to increased health
        risks;


        ….


        35. The record is clear that Mother has kept Father generally
        informed concerning the children’s medical care, but there have
        been some situations the Court finds concerning with regards to
        Dr. Delcoco and Dr. Rupp. As a result, this Court questions
        whether Mother will be forthright with providing information to
        Father if she were granted sole legal custody for medical
        decisions regarding the minor children;


        ….



Court of Appeals of Indiana | Memorandum Decision 19A-DC-993 | November 27, 2019   Page 9 of 24
        42. All three of the children have received some of their
        recommended vaccinations;


        43. No evidence was presented that the children have had any
        negative reaction to any vaccine they have been given;


        44. Though the Court has considered joint legal custody
        regarding medical decisions for the parties in this case, the court
        questions the fitness and suitability of Mother to maintain joint
        legal custody for medical decisions in light of the core disputes of
        the parties;


        ….


        46. The Court reasonably fears that if either party has sole
        decision[-]making as to legal custody for medical issues, that
        party will not consider any input from the other parent, however,
        the parties were clear that neither believed joint legal custody
        would be appropriate for this case;


        ….


        48. As the parties spent a majority of the marriage utilizing
        vaccines for their children, and as the parties now disagree on
        whether [to] vaccinate the children, the Court will order that all
        three children be vaccinated in accordance with the prescribed
        schedule as set forth by the [AAP];


        ….


        53. …. Mother went behind Father’s back to establish a new
        primary care and thyroid care provider with Dr. Delcoco for the
        children during the pendency of this case, when all eyes were
        watching. Mother failed to put the initial appointment on the
Court of Appeals of Indiana | Memorandum Decision 19A-DC-993 | November 27, 2019   Page 10 of 24
        family calendar, and added [As.B.’s] thyroid appointment on the
        family calendar less than 24 hours before [she] was scheduled to
        be seen. Per Dr. Delcoco’s testimony, it takes months to get into
        her office, and thus Mother could have easily put these
        appointments on the family calendar, and for reasons unknown
        to the Court, chose not to do so. Mother did not offer Father any
        specific information about Dr. Delcoco when asked;[ 2]


        ….


        57. Father has demonstrated a history of cooperating with
        Mother, and it is clear from the record he follows the
        recommendations of the children’s health care providers;


        58. Father has demonstrated a pattern of being cooperative and
        compromising with Mother, even if he does not agree with a
        decision Mother wants to make, and he has relied on Mother’s
        judgment for most medical decisions regarding the children;


        59. Mother has not demonstrated a pattern of being fully
        cooperative and compromising with Father, but seems rather
        inflexible in her decision[-]making process. While having an
        opinion and standing one’s ground are important, it doesn’t
        necessarily work well in a co-parenting environment;


        60. Mother has demonstrated she frequently makes unilateral
        medical and/or health care decisions concerning the girls,



2
  Conclusion 53 also stated, “Mother was not compliant with this court’s preliminary orders regarding legal
custody.” Appealed Order at 63. In her reply brief, Mother argues that the trial court’s determination that
she was in contempt for failing to abide by the parties’ agreed provisional order was improper because the
order was issued on August 30, 2017, and the medical appointment in question occurred on August 28, 2017.
Appellant’s Reply Brief at 7-8. Even if the agreed provisional order was issued after the appointment was
made and Mother was not technically in contempt of the agreed provisional order, Mother does not dispute
any other part of Conclusion 53.

Court of Appeals of Indiana | Memorandum Decision 19A-DC-993 | November 27, 2019              Page 11 of 24
        knowing they are contrary to Father’s wishes and sometimes
        against conventional norms. If the children were just Mother’s,
        this Court would not be a barrier to Mother’s wishes. However,
        there are two parents in this family and decision-making for
        healthcare in this family is going to be rebalanced;


        61. Mother has demonstrated she has shut Father out of major
        medical decisions, even during the pendency of this case, by
        trying to go behind his back to establish a new primary care
        provider and endocrinologist for the girls; unilaterally changing
        their thyroid medications; and failing to compromise on the
        vaccination of the children, even when Father was agreeable to a
        slower vaccination schedule;


        62. Mother asserts Father does not have in-depth knowledge or
        recollection of the children’s medical history, and this is not
        supported by the record. To the contrary, despite Mother being
        the stay at home parent and primarily charged with the
        responsibilities of getting the children to their doctor
        appointments, Father is familiar with the children’s medical care;


        ….


        65. If both parents were granted legal custody, based on the
        history of this case, and the evidence before this court, it is
        anticipated the parties will reach an impasse on important and
        fundamental medical decisions relating to their children, and this
        Court will undoubtedly be required to intervene to resolve their
        on-going disputes. This court has already had to intervene three
        times concerning disagreements over the medical care of the
        children;


        ….



Court of Appeals of Indiana | Memorandum Decision 19A-DC-993 | November 27, 2019   Page 12 of 24
        68. Mother has not been honest about the children’s medical
        issues/history, and the Court is concerned she will continue to
        slant the truth in order to obtain medical care for the children
        which she believes is appropriate, even though inconsistent with
        the recommendation of doctors. For example, Mother reported
        to [An.B.’s] allergist (Dr. Matesic) that it was Dr. Gollnick who
        had concerns regarding [An.B.] taking the MMR vaccine.
        However, Dr. Gollnick testified she never gave Mother any
        reason to believe the vaccinations needed to be slowed down for
        any of the children, and continued to ask Mother at every doctor
        visit to schedule more shots even if Mother refused. Further, Dr.
        Gollnick testified it was Mother who controlled the schedules of
        the shots, and not Dr. Gollnick;


        69. The Court questions Mother’s candor. Mother was not
        truthful during her deposition regarding her knowledge that Dr.
        Gollnick had in fact declined to sign a vaccine medical
        exemption for the children. Mother testified during her
        deposition she would be speculating about Dr. Gollnick’s
        opinion concerning the vaccine medical exemptions when in fact
        Mother already knew Dr. Gollnick had indeed declined to sign
        the exemption for specific reasons;


        ….


        71. [The] Court does not find Dr. Rupp’s certification of the girls’
        medical waivers legitimate. Dr. Rupp did not administer any test
        to support her basis for the waiver, even though testing was
        available to her, and did not confirm the family history with
        Father, who she knew did not support a medical waiver
        exempting the children from vaccinations. Dr. Rupp could have
        easily performed such tests and confirmed the family history with
        Father. Most significantly, none of the children have experienced
        a negative reaction to vaccinations, and none of the medical
        records reflect a concern that the children have or will experience
        a reaction to a vaccination. Dr. Rupp simply believes the
Court of Appeals of Indiana | Memorandum Decision 19A-DC-993 | November 27, 2019   Page 13 of 24
        children could experience a reaction, but also believes any person
        is susceptible to a negative reaction to any treatment. Perhaps
        this explains Dr. Rupp’s focus on natural and holistic medicine,
        and the decision to maintain a medical practice that sometimes
        prescribes treatments that are contrary to the guidelines of the
        [AAP] and the [CDC]. None of Dr. Rupp’s fees are covered by
        insurance;


        72. This Court finds the testimony of Dr. Gollnick most reliable,
        given she has been the children’s treating physician for the
        longest period of time and thus has a comprehensive
        understanding of their health care needs. She follows the
        standard of care and guidelines set forth by the [AAP], [CDC],
        and the Indiana State Department of Health, and both parties
        continue to trust her judgment and desire for her to continue as
        the children’s primary care provider. Dr. Gollnick is an approved
        provider under the children’s health insurance plan;


        73. This Court makes no determination regarding the medical
        efficacy of vaccinations, their effectiveness, or their risks. This
        Court has determined the children will be vaccinated based upon
        the desire of one of their parents, and as such, the Court orders
        the children to be vaccinated; and


        74. As such, at this time THE COURT AWARDS Father sole
        legal custody for medical decisions regarding the minor children.


Appealed Order at 7, 9-10, 13, 23, 52, 58-69 (underlining in original changed to

italics). This appeal ensued.




Court of Appeals of Indiana | Memorandum Decision 19A-DC-993 | November 27, 2019   Page 14 of 24
                                      Discussion and Decision

            Section 1 – The trial court did not abuse its discretion in
                      excluding Mother’s expert witness.
[13]   Mother challenges the trial court’s exclusion of her expert witness, Dr. Moss.

       The trial court is the gatekeeper for the admissibility of expert opinion under

       Indiana Evidence Rule 702, which provides,


               (a) If scientific, technical, or other specialized knowledge will
               assist the trier of fact to understand the evidence or to determine
               a fact in issue, a witness qualified as an expert by knowledge,
               skill, experience, training, or education, may testify thereto in the
               form of an opinion or otherwise.


               (b) Expert scientific testimony is admissible only if the court is
               satisfied that the scientific principles upon which the expert
               testimony rests are reliable.


[14]   “A trial court’s determination regarding the admissibility of expert testimony

       under Rule 702 is a matter within its broad discretion and will be reversed only

       for abuse of that discretion.” Person v. Shipley, 962 N.E.2d 1192, 1194 (Ind.

       2012) (quoting TRW Vehicle Safety Sys., Inc. v. Moore, 936 N.E.2d 201, 216 (Ind.

       2010)). “We presume that the trial court’s decision is correct, and the burden is

       on the party challenging the decision to persuade us that the trial court has

       abused its discretion.” Id.


[15]   At the hearing on Father’s motion to exclude, the trial court explained its

       reasoning for excluding Dr. Moss as follows:


       Court of Appeals of Indiana | Memorandum Decision 19A-DC-993 | November 27, 2019   Page 15 of 24
               [A]s Dr. Moss hasn’t treated the [Children], all Dr. Moss can do
               is offer this court an opinion on the efficacy of vaccinations. And
               as Dr. Moss has not treated any of these [C]hildren, I don’t know
               how Dr. Moss could provide any greater assistance to this Court,
               than the other doctors that are expected to testify, that have
               actually treated the [C]hildren with regards to their health, their
               physical health, and their issues with regard to vaccines.


       Tr. Vol. 2 at 156.


[16]   Mother contends that Dr. Moss’s expertise is relevant because the vaccination

       issue was a “battle of the experts of whether the [C]hildren should be medically

       exempt from vaccinations,” and “by calling the medical exemptions ‘not

       legitimate’ the trial court has implicitly conceded [that] experts regarding

       medical exemptions are certainly relevant to a determination in this case.”

       Appellant’s Br. at 24. Mother was permitted to call two expert witnesses, Dr.

       Rupp and Dr. Delcoco, both of whom were medical doctors who had seen the

       Children and who offered testimony specifically about the Children’s health

       issues and whether vaccination was medically indicated for each of them. They

       testified that in their opinions, the Children should not be vaccinated and

       explained the basis for their opinions. Dr. Moss apparently had not seen or

       treated the Children. The trial court reasonably concluded that Dr. Moss

       would have nothing to add to Dr. Rupp’s and Dr. Delcoco’s testimony.

       Although Mother claims that Dr. Moss’s testimony was relevant, all we can

       glean from her briefs is that he was going to be Mother’s expert regarding

       “vaccinations” and was going to testify “regarding the safety and efficacy of



       Court of Appeals of Indiana | Memorandum Decision 19A-DC-993 | November 27, 2019   Page 16 of 24
       vaccinations.” Id. at 21, 24. Accordingly, we cannot say that the trial court

       abused its discretion in excluding Dr. Moss’s testimony.


       Section 2 – The trial court’s decision to grant Father sole legal
        custody for medical decisions regarding the Children is not
                              clearly erroneous.
[17]   Mother argues that the trial court erred in granting Father sole legal custody for

       medical decisions regarding the Children. We observe that this Court accords

       great deference to trial courts in family law matters:


               Appellate deference to the determinations of our trial court
               judges, especially in domestic relations matters, is warranted
               because of their unique, direct interactions with the parties face-
               to-face, often over an extended period of time. Thus enabled to
               assess credibility and character through both factual testimony
               and intuitive discernment, our trial judges are in a superior
               position to ascertain information and apply common sense,
               particularly in the determination of the best interests of the
               involved children.


       Best v. Best, 941 N.E.2d 499, 502 (Ind. 2011).


[18]   Here, the trial court entered findings of fact and conclusions thereon at the

       parties’ request. Our standard of review is well established:


               Where the trial court has entered special findings of fact and
               conclusions thereon, our court will “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). Under our … two-tiered
               standard of review, we must determine whether the evidence
               supports the findings and whether those findings support the
       Court of Appeals of Indiana | Memorandum Decision 19A-DC-993 | November 27, 2019   Page 17 of 24
                judgment. We consider the evidence most favorable to the trial
                court’s judgment, and we do not reweigh evidence or reassess the
                credibility of witnesses. We will find clear error only if the record
                does not offer facts or inferences to support the trial court’s
                findings or conclusions of law.


       B.L. v. J.S., 59 N.E.3d 253, 258-59 (Ind. Ct. App. 2016) (citations and quotation

       marks omitted). 3


[19]   We note that the Order contains numerous “findings” that are mere recitations

       of witness testimony. Findings that merely state that the testimony or evidence

       was this or that are not true findings of fact. Maddux v. Maddux, 40 N.E.3d 971,

       975 n.4 (Ind. Ct. App. 2015). See also Garriott v. Peters, 878 N.E.2d 4431, 438

       (Ind. Ct. App. 2007) (“A court or an administrative agency does not find

       something to be a fact by merely reciting that a witness testified to X, Y, or Z.”)

       (quoting In re Adoption of T.J.F., 798 N.E.2d 867, 874 (Ind. Ct. App. 2003)),

       trans. denied (2008). We treat these findings as “mere surplusage” rather than

       harmful error. Perez v. U.S. Steel Corp., 426 N.E.2d 29, 33 (Ind. 1981).

       Therefore, we will ignore findings preceded by “testified that” and limit our

       review to the Order’s valid factual findings, regardless of whether they are

       labeled “findings” or “conclusions.” Further, we accept unchallenged findings

       as true. McMaster v. McMaster, 681 N.E.2d 744, 747 (Ind. Ct. App. 1997).




       3
         In her appellant’s brief, Mother failed to provide the standard of appellate review for such an order as
       required by Indiana Appellate Rule 46(A)(8)(b).

       Court of Appeals of Indiana | Memorandum Decision 19A-DC-993 | November 27, 2019                   Page 18 of 24
[20]   Initial custody determinations are governed by Indiana Code Section 31-17-2-8,

       which provides in relevant part,


               The court shall determine custody and enter a custody order in
               accordance with the best interests of the child. In determining the
               best interests of the child, there is no presumption favoring either
               parent. The court shall consider all relevant factors, including the
               following:


                    (1) The age and sex of the child.


                    (2) The wishes of the child’s parent or 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 parent or parents;


                         (B) the child’s sibling; and


                         (C) any other person who may significantly affect the
                         child’s best interests.


                    (5) The child’s adjustment to the child’s:


                         (A) home;


                         (B) school; and


       Court of Appeals of Indiana | Memorandum Decision 19A-DC-993 | November 27, 2019   Page 19 of 24
                         (C) community.


                    (6) The mental and physical health of all individuals
                    involved.


                    (7) Evidence of a pattern of domestic or family violence by
                    either parent.


[21]   A trial court may award joint legal custody if it finds that joint legal custody is

       in the best interests of the child. Ind. Code § 31-17-2-13. Section 31-17-2-15

       sets forth the matters a trial court is required to consider in determining whether

       joint legal custody is in the best interests of the child:


               [T]he court shall consider it a matter of primary, but not
               determinative, importance that the persons awarded joint
               custody have agreed to an award of joint legal custody. The
               court shall also consider:


               (1) the fitness and suitability of each of the persons awarded joint
               custody;


               (2) whether the persons awarded joint custody are willing and
               able to communicate and cooperate in advancing the child’s
               welfare;


               (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) whether the child has established a close and beneficial
               relationship with both of the persons awarded joint custody;


               (5) whether the persons awarded joint custody:
       Court of Appeals of Indiana | Memorandum Decision 19A-DC-993 | November 27, 2019   Page 20 of 24
                     (A) live in close proximity to each other; and


                     (B) plan to continue to do so; and


                (6) the nature of the physical and emotional environment in the
                home of each of the persons awarded joint custody.


[22]   Here, Mother asserts that the trial court erred in granting Father sole legal

       custody for medical decisions regarding the Children because (1) she and Father

       have historically been capable of co-parenting and reaching compromise on

       parenting decisions, including medical issues other than those of vaccinations

       and thyroid medication, and (2) Father has historically had much less

       involvement with the Children’s medical care than Mother. She contends that

       there are less extreme measures than granting Father sole legal custody, such as

       ordering that the Children be vaccinated and granting the parties joint legal

       custody over other medical decisions or granting the parties joint legal custody

       and appointing a parenting coordinator to assist the parties in making medical

       decisions. Mother did not request these arrangements below, but that alone

       would not preclude the trial court from adopting such options as long as the

       arrangement was in the Children’s best interests. 4




       4
         Father argues that Mother did not request anything other than sole legal custody for medical decisions, and
       therefore we should reject her argument outright as invited error. To be clear, the trial court is not precluded
       from entering a custody arrangement not specifically advanced by either party so long as that custody
       arrangement is in the child’s best interests. Richardson v. Richardson, 34 N.E.3d 696, 704 (Ind. Ct. App. 2015).

       Court of Appeals of Indiana | Memorandum Decision 19A-DC-993 | November 27, 2019                  Page 21 of 24
[23]   Mother attempts to argue that the parties’ disagreement was mainly about

       vaccinations, and once that issue was resolved they would be able to cooperate.

       However, the trial court found that although vaccination was a major area of

       disagreement between the parties, the parties also disagreed as to As.B.’s

       thyroid medication, which health providers should treat the Children, and

       whether to utilize alternative medical treatments. Significantly, medical

       decisions for the Children was the only area in which Mother and Father

       declined to agree on joint custody; that is why they sought the court’s

       intervention. Whatever degree of cooperation they were able to achieve in the

       past, they clearly did not believe they could cooperate on medical issues any

       longer, and each sought sole legal custody over those decisions. The trial court

       found that Mother and Father “were clear that neither believed joint legal

       custody would be appropriate in this case.” Appealed Order at 62. The trial

       court also found that Mother seemed inflexible in her decision-making process,

       had not shown a pattern of cooperation and compromise with Father, and had

       frequently made unilateral health care decisions for the Children, knowing that

       those decisions were contrary to Father’s wishes. The trial court found that the

       parties had already sought its intervention three times during the pendency of

       the case and that if they had equal decision-making authority, many

       disagreements over medical decisions would arise, leading to an impasse, and

       the trial court would “undoubtedly be required to intervene.” Id. at 66. The

       trial court’s findings show that it carefully considered whether any form of joint

       legal custody for medical decisions would be workable. As for the possibility of

       a parenting coordinator, Mother specifically rejected the appointment of a
       Court of Appeals of Indiana | Memorandum Decision 19A-DC-993 | November 27, 2019   Page 22 of 24
       parenting coordinator to assist the parties in making medical decisions for the

       Children, explaining that “[i]t would be another pan in the fire.” Tr. Vol. 6 at

       164. Accordingly, we conclude that the trial court did not clearly err in

       declining to award joint legal custody for medical decisions.


[24]   To the extent Mother is arguing that the trial court erred in granting Father,

       rather than Mother, sole legal custody for medical decisions, we note that the

       trial court found that Father had a history of cooperation and compromise

       regarding the Children’s health care. In addition to the above findings

       regarding Mother’s lack of cooperation and compromise and unilateral

       decision-making, the trial court also made findings regarding Mother’s lack of

       honesty and candor. Mother told An.B.’s allergist that Dr. Gollnick had

       concerns regarding the administration of the MMR vaccine, but Dr. Gollnick

       testified that she always recommended that Mother schedule the Children’s

       vaccinations. The trial court also found that Mother testified at her deposition

       that she did not know Dr. Gollnick’s opinion regarding vaccine medical

       exemptions, when in fact Mother knew that Dr. Gollnick had declined to sign

       vaccine medical exemptions for the Children. As to Mother’s assertion that

       Father’s involvement with the Children’s medical care was limited and he is not

       as knowledgeable as she is regarding the Children’s health care needs, the trial

       court considered and rejected those assertions. Although Father, as the parent

       who worked to provide financial resources for the family, may not have been as

       involved with the Children’s health care as Mother, who was the Children’s

       primary caretaker, that in itself does not call into question Father’s ability to


       Court of Appeals of Indiana | Memorandum Decision 19A-DC-993 | November 27, 2019   Page 23 of 24
       make health-care decisions in the Children’s best interests going forward. We

       conclude that the trial court’s unchallenged findings support its decision to

       award Father sole legal custody of medical decisions regarding the Children.


[25]   As a final matter, Mother contends that the trial court erred in ordering that the

       Children be vaccinated. Because we have determined that the trial court’s

       decision to award Father sole legal custody for medical decisions is not clearly

       erroneous and Father wants the Children to be vaccinated, any error in the trial

       court’s decision to order that the Children be vaccinated is harmless.


[26]   Based on the foregoing, we affirm the Order granting Father sole legal custody

       for medical decisions regarding the Children.


[27]   Affirmed.


       Baker, J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-DC-993 | November 27, 2019   Page 24 of 24
