 Pursuant to
Pursuant     to Ind.Appellate
                Ind.Appellate Rule
                                 Rule 65(D),
                                       65(D),
 this  Memorandum        Decision
this Memorandum Decision shall     shallnotnot
                                             be     Dec 19 2014, 10:36 am
 be   regarded    as   precedent   or
regarded as precedent or cited before    cited
 before
any        anyexcept
       court      courtforexcept    for the
                            the purpose       of
 purpose   of  establishing   the defense
establishing the defense of res judicata,    of
 res judicata,
collateral       collateral
             estoppel,   or estoppel,
                             the law orof the
                                            the
 law
case. of the case.

ATTORNEYS FOR APPELLANT:                              APPELLEE PRO SE:

ANDREA L. CIOBANU                                     D.N.
ALEX BEEMAN                                           Fishers, Indiana
Ciobanu Law, P.C.
Indianapolis, Indiana




                                 IN THE
                       COURT OF APPEALS OF INDIANA

IN RE THE PATERNITY OF T.T.:                          )
                                                      )
L.H.,                                                 )
                                                      )
        Appellant-Petitioner,                         )
                                                      )
                 vs.                                  )     No. 49A02-1404-DR-270
                                                      )
L.T., and D.N.,                                       )
                                                      )
        Appellee-Respondents.                         )


                       APPEAL FROM THE MARION SUPERIOR COURT
                             The Honorable John F. Hanley, Judge
                         The Honorable Christopher B. Haile, Magistrate
                              Cause No. 49D11-0510-DR-41507



                                           December 19, 2014


                  MEMORANDUM DECISION - NOT FOR PUBLICATION


BROWN, Judge
      The maternal grandmother of T.T., L.H. (“Grandmother”), appeals the trial court’s

order granting the petition to modify custody of T.T. filed by D.N. (“Father”).

Grandmother raises two issues which we consolidate and restate as whether the trial court

abused its discretion in taking under advisement its decision on whether to interview T.T.

in camera until after the close of evidence and in denying Grandmother’s request for an

in camera interview with T.T. We affirm.

                            FACTS AND PROCEDURAL HISTORY

      Grandmother cared for T.T. during the first part of his life and obtained custody.1

In 2007, the court ordered that Grandmother have physical custody of T.T., that

Grandmother and Father have joint legal custody, and that Father have parenting time.

On June 13, 2013, Father filed a verified petition for modification of custody and

emergency hearing.         Father alleged that Grandmother was in the hospital due to a

recurring and possibly serious illness, that T.T.’s mother (“Mother”) and Mother’s

boyfriend moved into Grandmother’s home, that Mother had not been actively involved

in parenting T.T., and that Mother had been incarcerated for dealing cocaine at some

point and was convicted of criminal charges in Tennessee as recently as February 2013.

      On March 26, 2014, the court held a hearing on Father’s motion. At the beginning

of the hearing, Grandmother’s counsel indicated that T.T. was fourteen years old and

stated that T.T. wished to be heard “so, we are requesting that the Court interview him in

chambers.” Transcript at 5. The court stated: “Well, my policy on in camera interviews

is to wait until I’ve heard the evidence and make a determination about whether I think


      1
          The record does not contain a copy of the initial custody order.

                                                     2
it’s important or not.” Id. Grandmother’s counsel responded by saying “[o]kay.” Id.

The court asked whether the parties wanted to stipulate as to what T.T.’s wishes were,

and Grandmother’s counsel stated: “we would say that he wishes to stay with his

grandmother, stay in her custody, and, and not have modification of custody . . . .” Id. at

5-6. Father’s counsel stated that that may have been stated in the report by the Domestic

Relations Counseling Bureau (“DRCB”). The court asked “obviously, that didn’t sway

the DRCB regarding the recommendation,” and Father’s counsel stated “it did not, as far

as I know.” Id. at 6. Father’s counsel asked the court to take judicial notice of the DRCB

report that was ordered and completed, and the court stated: “So noted.” Id. at 8.

       Father’s fiancée testified regarding Father’s relationship with her daughter and

T.T.’s relationship with her daughter. Father testified that Grandmother went to the

hospital three or four times within the past six to eight months, that the last time was for

ten days, and that no one called him at any time to tell him. Father testified regarding his

concern with certain individuals who smoke marijuana at Grandmother’s house. Father

also testified regarding his education and the fact that he was employed. Grandmother

testified that she wished T.T. would remain in her custody and she knew that T.T. agreed

with her wish. She testified that she was in the hospital for seven days. She also testified

that none of her children graduated from school and that she had been given custody of

her son’s daughter who was currently seventeen years old, pregnant, and “on the run.”

Id. at 100.

       After the parties rested, the court stated:

       Alright, Court is going to take this under advisement. I’m going to review
       the record and my notes. If I determine that it’s, uh, necessary and helpful

                                               3
       to talk with [T.T.] then I will contact, we will contact, um, counsel, to make
       arrangements to have him brought in for an interview to be done, alright?

Id. at 123. Grandmother did not object.

       On April 1, 2014, the court entered an order granting Father’s petition for

modification of custody. The order indicated that the DRCB recommended that custody

be modified and the court agreed with the recommendations of the DRCB. The court

ordered that Father have sole custody of T.T. and that Grandmother have parenting time

with T.T. on alternate weekends.

                                      DISCUSSION

       The issue is whether the trial court abused its discretion in taking under

advisement its decision on whether to interview T.T. in camera until after the close of

evidence, and in denying Grandmother’s request for an in camera interview.

Grandmother argues that the court abused its discretion because it should have inquired

as to the basis or reason why T.T. wished to remain in her custody. Grandmother argues

that the trial court’s decision to take her request under advisement until the close of the

evidence “effectively denied [her] the ability to compel a witness on her behalf.”

Appellant’s Brief at 11. She asserts that it should not be left to one party to place a child

in the middle of an adversarial custody battle and that “[o]ne can also infer that had

[Grandmother] attempted to call [T.T.] as a witness, the trial court would have summarily

denied the request in light of its decision on the in camera interview of [T.T.].” Id. She

also contends that the trial court’s errors were not harmless because they effectively

denied T.T. from being heard and denied her the ability to present evidence.



                                             4
       Father, pro se, argues that Grandmother waived her challenge to the denial of her

request for an in camera interview because she presents her argument in a perfunctory

form. He contends that this court should dismiss the appeal because it is frivolous,

wholly without merit, and brought in bad faith, and that sanctions should be imposed. He

also asserts that the trial court acted entirely within in its discretion in denying

Grandmother’s request for an in camera interview.

       In her reply brief, Grandmother contests Father’s assertions and argues that

“[s]anctions presupposes [sic] one incurred attorney’s fees in a matter” and that Father

“has allegedly filed his brief pro se and represented to this Court the same, though there

is all the indications that the brief was written by a ghost” given the “substantially perfect

Blue Book citation and [Father’s] request for sanctions.” Appellant’s Reply Brief at 8.

       With respect to Father’s argument that we dismiss the case or impose sanctions,

we observe that Ind. Appellate Rule 46(A)(8)(a), which is cited by Father, provides: “The

argument must contain the contentions of the appellant on the issues presented, supported

by cogent reasoning. Each contention must be supported by citations to the authorities,

statutes, and the Appendix or parts of the Record on Appeal relied on, in accordance with

Rule 22.” We also observe that Ind. Appellate Rule 66(E) provides that “[t]he Court may

assess damages if an appeal, petition, or motion, or response, is frivolous or in bad faith.

Damages shall be in the Court’s discretion and may include attorneys’ fees.”

       While Ind. Appellate Rule 66(E) provides this court with discretionary authority to

award damages on appeal, we must use extreme restraint when exercising this power

because of the potential chilling effect upon the exercise of the right to appeal. Thacker


                                              5
v. Wentzel, 797 N.E.2d 342, 346 (Ind. Ct. App. 2003) (citing Tioga Pines Living Ctr.,

Inc. v. Ind. Family & Soc. Serv. Admin., 760 N.E.2d 1080, 1087 (Ind. Ct. App. 2001),

aff’d on reh’g, trans. denied). A strong showing is required to justify an award of

appellate damages and the sanction is not imposed to punish mere lack of merit but

something more egregious. Harness v. Schmitt, 924 N.E.2d 162, 168 (Ind. Ct. App.

2010). Grandmother’s brief contains cogent reasoning and citations to authority. We

decline to dismiss the appeal or impose sanctions. Accordingly, we turn to the merits of

Grandmother’s arguments.

       Indiana Code § 31-17-2-9(a) provides that when making a decision concerning

child custody, a trial court “may interview the child in chambers to ascertain the child’s

wishes.” (Emphasis added). Additionally, Indiana Code § 31-17-2-8(3) states that, when

making a child custody determination, the trial court “shall consider . . . [t]he wishes of

the child, with more consideration given to the child’s wishes if the child is at least

fourteen (14) years of age.”

       We have noted that, under Indiana Code § 31-17-2-9, “the decision concerning

whether to conduct an in camera interview is within the trial court’s discretion.”

Cunningham v. Cunningham, 787 N.E.2d 930, 937 (Ind. Ct. App. 2003). To the extent

the trial court’s refusal to interview T.T. in camera was similar to an exclusion of

evidence, the admission of evidence is entrusted to the sound discretion of the court.

K.L. v. E.H., 6 N.E.3d 1021, 1030 (Ind. Ct. App. 2014). We will find an abuse of

discretion only where the court’s decision is against the logic and effect of the facts and




                                            6
circumstances before the court. Id. We will reverse only if the error is inconsistent with

substantial justice or if a substantial right of the party is affected. Id.

       The record reveals that Grandmother’s counsel stated that T.T. wished to stay with

Grandmother. Grandmother testified that she wished T.T. would remain in her custody

and that she knew that T.T. agreed with her wish. While the record does not contain a

copy of the DRCB report, the record suggests that the report includes statements

indicating T.T.’s desire to remain with Grandmother, and the court took judicial notice of

the report. Thus, the trial court had before it argument and evidence that T.T. wished to

remain with Grandmother. We also note that Grandmother did not object to the trial

court’s statement at the beginning of the hearing that the court was going to wait until it

heard the evidence before making a determination on Grandmother’s request for an in

camera interview. And she did not object at the end of the hearing when the court stated

that it would take the matter under advisement. Grandmother also made no attempt to

call T.T. to testify as a witness, as she could have done, if she truly wished T.T. to be

heard by the trial court. See White v. White, 655 N.E.2d 523, 528-529 (Ind. Ct. App.

1995) (holding that option to conduct in camera interview of child pursuant to statute did

not permit trial court to disallow in-court testimony of competent child). Under the

circumstances, we cannot say that the denial of Grandmother’s request for an in camera

interview or the fact that the court took the matter under advisement requires reversal of

the trial court’s order.




                                                7
                                    CONCLUSION

      For the foregoing reasons, we affirm the trial court’s order granting Father’s

petition to modify custody.

      Affirmed.

BAILEY, J., concurs.

ROBB, J., concurs in result without separate opinion.




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