MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                                    FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                                    Feb 27 2019, 6:25 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
Denise F. Hayden                                          Richard A. Mann
Lacy Law Office                                           Megan L. Gehring
Indianapolis, Indiana                                     Mann Law, P.C.
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In re the Paternity of L.B.,                              February 27, 2019
                                                          Court of Appeals Case No.
Rita Maxwell,                                             18A-JP-2049
Appellant-Respondent,                                     Appeal from the Hendricks
                                                          Superior Court
        v.                                                The Honorable Mark A. Smith,
                                                          Judge
Randall S. Bertram,                                       Trial Court Cause No.
Appellee-Petitioner                                       32D04-1709-JP-137




Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-JP-2049 | February 27, 2019                     Page 1 of 7
[1]   Rita Maxwell1 (Mother) appeals the trial court’s order authorizing Randall

      Bertram (Father) to have unsupervised parenting time with their child, L.B.

      (Child), arguing that the evidence does not support the order. Finding the

      evidence sufficient, we affirm.


                                                      Facts
[2]   Child was born on April 29, 2012; at the time of her birth, Father and Mother

      executed a paternity affidavit.2 She was born prematurely and spent the first

      four months of her life in the Neonatal Intensive Care Unit. Child continues to

      have significant medical challenges. She has been diagnosed with Failure to

      Thrive because she has been unable to gain and maintain appropriate weight.

      She also has a strict eating and oral exercise regimen recommended by her

      healthcare providers.


[3]   Child has primarily lived with Mother. Father has participated regularly in

      Child’s life, exercising parenting time on a consistent basis. He has also

      provided financial support.


[4]   Father sometimes accompanied Child to her appointments at a feeding program

      center for children in Evansville. He was reluctant, or refused altogether, to

      participate in learning how to feed her or how to help her use the oral



      1
       Evidently Maxwell has gotten married and changed her last name to Seal, but as she is called “Rita
      Maxwell” in all underlying documents, we will do the same herein.
      2
       Mother and Father were engaged in a relationship in the past but have since separated, though they have
      continued to co-parent Child.

      Court of Appeals of Indiana | Memorandum Decision 18A-JP-2049 | February 27, 2019               Page 2 of 7
      techniques being demonstrated by the therapists. He has not strictly abided by

      the list of approved foods created by Child’s medical team, nor has he strictly

      complied with Child’s eating schedule when she is in his care.


[5]   On September 7, 2017, Father filed a petition to establish paternity, custody,

      and child support. On September 18, 2017, Mother filed a counter-petition in

      which she agrees that paternity should be established, asks for sole custody of

      Child, and asks for supervised parenting time for Father. At Mother’s request,

      the trial court appointed a guardian ad litem (GAL) for Child. After

      investigating, the GAL agreed that Mother should have sole custody and that

      Father should have supervised parenting time.


[6]   An evidentiary hearing took place on June 7, 2018. Following the hearing, the

      trial court entered an order establishing paternity, awarding sole custody of

      Child to Mother, and awarding Father unsupervised parenting time pursuant to

      the Indiana Parenting Time Guidelines. In pertinent part, the trial court found

      and held as follows:


              6.       The Court finds that it is in [Child’s] best interest to award
                       legal custody to Mother. Based upon the evidence, the
                       Court finds that Mother is more attuned to [Child’s]
                       serious medical issues because of her premature birth. It
                       appears that Father has been unable and/or unwilling to
                       avail himself of many opportunities to properly educate
                       himself regarding [Child’s] very structured eating
                       schedule. . . .


                                                       ***


      Court of Appeals of Indiana | Memorandum Decision 18A-JP-2049 | February 27, 2019   Page 3 of 7
               8.       Mother shall maintain primary physical custody subject to
                        Father’s parenting time. . . .


               9.       Commencing the first day of the 2018-2019 academic year
                        at [Child’s] school . . . , Father shall have parenting time
                        pursuant to the Indiana Parenting Time Guidelines
                        (IPTG) when distance is a factor.[3] Mother shall make
                        every effort to schedule [Child’s] feeding clinic
                        appointments so as not to overlap Father’s parenting time.
                        Father shall also be entitled to weekly contact with [Child]
                        at reasonable times and intervals via telephone and/or by
                        use of programs such as Skype or FaceTime.


                                                           ***


               12.      Father shall be properly trained on [Child’s] feeding plan.
                        Father shall faithfully follow and administer the feeding
                        plan while he exercises parenting time with [Child].


      Appealed Order p. 2-3. Mother filed a motion to correct error, which the trial

      court summarily denied. She now appeals.


                                      Discussion and Decision
[7]   Mother argues that the portion of the trial court’s order awarding Father

      unsupervised parenting time pursuant to the Parenting Time Guidelines is

      erroneous and based on insufficient evidence.




      3
        Mother notified the trial court of her intent to relocate to Virginia with Child. The trial court approved the
      relocation.

      Court of Appeals of Indiana | Memorandum Decision 18A-JP-2049 | February 27, 2019                     Page 4 of 7
[8]    When reviewing a trial court’s parenting time decision, if we find that there is a

       rational basis for the decision, we will affirm. Meisberger v. Bishop, 15 N.E.3d

       653, 656 (Ind. Ct. App. 2014). We will neither reweigh evidence nor reassess

       witness credibility in reviewing the order. Id.


[9]    The central inquiry when considering parenting time is the best interests of the

       child. Id. We must also keep in mind that the right of a noncustodial parent to

       spend time with his child is a sacred and precious privilege. Hatmaker v.

       Hatmaker, 998 N.E.2d 758, 761 (Ind. Ct. App. 2013). Indeed, the General

       Assembly has codified this right in a statute providing that “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.” Ind. Code § 31-17-4-2 (emphases added).

       This Court has previously interpreted this language “to mean that a court may

       not restrict parenting time unless that parenting time ‘would’ endanger the

       child’s physical health or emotional development.” D.B. v. M.B.V., 913 N.E.2d

       1271, 1274 (Ind. Ct. App. 2009). The child, likewise, has a right to that

       parenting time. Ind. Parenting Time Guideline I(E)(5). Therefore, our analysis

       must take into account the rights of both Father and Child to a mutual

       relationship.


[10]   Mother argues that the evidence does not support the trial court’s conclusion

       that unsupervised parenting time is in Child’s best interest. While we

       acknowledge Mother’s genuine concerns, as well as the GAL’s



       Court of Appeals of Indiana | Memorandum Decision 18A-JP-2049 | February 27, 2019   Page 5 of 7
recommendation and the evidence supporting their position, we must focus on

the evidence in the record that supports the trial court’s order.


    • Both Mother and Father keep food logs to track Child’s food intake.
      Appellant’s App. Vol. III p. 8. Father has filled out the food log every
      time he fed Child during his parenting time. Tr. Vol. II p. 188.
    • Father was initially trained by Mother on the feeding program and
      followed it until Mother began restricting his parenting time. Id. at 19,
      180-81. He also attended Child’s feeding clinics on multiple occasions to
      ensure that he understands the requirements of her program. Id. at 49,
      182.
    • Father had extended parenting time with Child during May and June
      2017. During that time, Child’s weight increased from 31.6 to 33
      pounds. Id. at 38-39, 40-41.
    • Father has a loving and close relationship with Child. She is bonded to
      both of her parents and her paternal grandparents. Id. at 43; Appellant’s
      App. Vol. III p. 56.
    • While Mother notes that Father gave Child food that was not on the
      approved list of foods provided by the feeding clinic, nothing in the
      record indicates that Child cannot have foods that are not on the list. In
      fact, the Home Meal Protocol itself states that the list is merely
      “suggestions on foods to select, calorie boosting, and combining items.”
      Tr. Ex. 9.
    • In fact, one of the foods not on the list that Father gave to Child was
      peanut butter, and the record reflects that a nurse for Child’s home
      healthcare services gave Child a peanut butter and jelly sandwich for
      lunch. Tr. Vol. II p. 116. One of the reasons that Father gave Child
      peanut butter is because it is a high caloric food that could help increase
      her weight. Appellant’s App. Vol. III p. 26.

We find that this evidence supports the trial court’s conclusion that

unsupervised parenting time is in Child’s best interest. Although Mother

highlights other evidence in the record supporting her position, this amounts to
Court of Appeals of Indiana | Memorandum Decision 18A-JP-2049 | February 27, 2019   Page 6 of 7
       a request that we reweigh evidence and assess witness credibility, which we

       may not do.


[11]   Mother also directs our attention to the trial court’s finding that Father “has

       been unable and/or unwilling to avail himself of many opportunities to educate

       himself regarding [Child’s] very structured eating schedule,” appealed order p.

       2, arguing that this finding establishes that supervised parenting time should

       have been ordered. We disagree. This finding is the trial court’s way of

       acknowledging that Father has had some shortcomings in terms of learning

       about Child’s needs; but it does not amount to a finding that unsupervised

       parenting time would endanger Child’s physical health. To address that

       concern, the trial court ordered that Father get properly trained on the feeding

       plan and faithfully follow and administer the plan when he exercises parenting

       time. In this way, the trial court addressed its own concern as well as Mother’s.


[12]   Should Mother conclude that Father is not complying with this court order,

       thereby endangering Child’s well-being, she is free to file a rule to show cause

       as well as a motion to modify the parenting time order. But assuming that

       Father complies with the order, Child’s needs—as well as the relationship

       between Father and Child—are protected.


[13]   The judgment of the trial court is affirmed.


       May, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-JP-2049 | February 27, 2019   Page 7 of 7
