MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                   FILED
regarded as precedent or cited before any                          Jun 21 2017, 8:29 am
court except for the purpose of establishing
                                                                        CLERK
the defense of res judicata, collateral                             Indiana Supreme Court
                                                                       Court of Appeals
estoppel, or the law of the case.                                        and Tax Court




ATTORNEY FOR APPELLANT
Richard J. Thonert
Fort Wayne, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Paternity of                         June 21, 2017
T.A., Minor Child                                         Court of Appeals Case No.
                                                          01A02-1611-JP-2729
                                                          Appeal from the Adams Circuit
By Next Friend,                                           Court
C.B.,                                                     The Honorable Chad E. Kukelhan,
Petitioner,                                               Judge
                                                          Trial Court Cause No.
        v.                                                01C01-1503-JP-11

L.A.,
Respondent




Altice, Judge.


                                          Case Summary



Court of Appeals of Indiana | Memorandum Decision 01A02-1611-JP-2729 | June 21, 2017        Page 1 of 11
[1]   C.B. (Mother) appeals from the trial court’s order granting L.A.’s (Father)

      Motion for Modification of Child Custody. Mother argues that the trial court

      abused its discretion in granting Father sole custody of T.A., the parties’ minor

      child (Child), and in restricting her parenting time.


[2]   We affirm in part, reverse in part, and remand with instructions.


                                       Facts & Procedural History


[3]   Child was born in September 2012. Mother and Father were never married, but

      Father signed a paternity affidavit establishing his paternity the day after

      Child’s birth. Mother and Father’s relationship ended sometime in 2013.

      Thereafter, Child resided with Mother and his nine-year-old half-sister in Berne,

      Indiana. Mother and Father voluntarily shared equal parenting time of Child

      and their arrangement worked “fairly well.” Transcript at 6. Mother eventually

      obtained employment in Decatur and arranged for Child to attend daycare

      nearby.


[4]   In May 2014, Mother met D.B. D.B. informed Mother that he was on

      probation after having served time in the Department of Correction for a Class

      C felony child molesting conviction.1 D.B. explained the circumstances giving

      rise to his conviction, admitting that when he was twenty-one, he and an




      1
          D.B. pleaded guilty.


      Court of Appeals of Indiana | Memorandum Decision 01A02-1611-JP-2729 | June 21, 2017   Page 2 of 11
      underage girl engaged in oral sex outside a bowling alley. 2 He claimed that he

      thought the girl was sixteen, but that she in fact was only thirteen.


[5]   Over the next six months, Mother and D.B. became better acquainted and

      eventually started dating. D.B. successfully completed his probation, finished

      his counseling, and passed a polygraph and other examinations administered by

      a mental health professional. Thereafter, the Adams Superior Court granted

      him permission to be in the presence of Mother’s three children. Father was

      not privy to D.B.’s request for permission to be around Child. D.B.’s probation

      officer and a mental health counselor both approved of the terms of a safety

      plan for D.B. to follow when in the presence of Mother’s children.


[6]   Father and Mother negotiated a Stipulation and Agreed Order (Custody Order)

      regarding custody and parenting time for Child. Father had met D.B. prior to

      submitting the Custody Order to the trial court, but Mother had not informed

      Father of D.B.’s criminal past. The trial court accepted the Custody Order

      submitted by Mother and Father on July 28, 2015. Paragraph 7 provided:

               It is agreed that both parties are fit and proper persons to have the
               primary physical custody of the minor child and, as such, Father
               and Mother shall have joint legal and equally shared physical
               custody of the parties’ minor child. For purposes of the holiday
               schedule in the Indiana Parenting Time Guidelines only, Mother



      2
        D.B. testified that he was required to register as a non-violent sex offender for a period of ten years, ending
      on May 16, 2024. He further testified that his mental health counselor put together a safety plan that
      included restrictions on where he could live and his interactions with children. The safety plan also provided
      that overnight visits with children were prohibited unless approved by the court. D.B.’s probation officer
      approved of the safety plan.

      Court of Appeals of Indiana | Memorandum Decision 01A02-1611-JP-2729 | June 21, 2017                Page 3 of 11
              shall be deemed the custodial parent. Father and Mother shall
              have parenting at all reasonable times agreed upon by the parties.
              However, if the parties cannot agree, then parenting time shall go
              to a two week schedule where Mother has the child Monday,
              Tuesday, and Wednesday, Father on Thursday and Friday, and
              Mother on Saturday and Sunday for week one. Week two shall
              see Father having custody Monday, Tuesday, and Wednesday,
              Mother on Thursday and Friday, and Father on Saturday and
              Sunday, with exchanges taking place at 7:00 p.m. at the
              McDonalds in Berne, Indiana or other place as the parties may
              agree.


      Appellant’s Appendix Vol. 2 at 29. Mother and Father further agreed:


              The parties agree that no modification of this joint legal custody
              agreement of the parties shall be made except upon a showing of
              substantial change in circumstances of the statutory
              considerations so as to make the existing joint legal custody order
              of this Court not in the best interests of the child. The parties
              agree that the remarriage of either party is not sufficient ground
              to satisfy the substantial change of circumstances standard for the
              purposes of modifying the joint legal custody arrangement.


      Id. at 31.


[7]   Mother and D.B. eventually married on June 10, 2016. Mother planned to

      move with Child into D.B.’s home in Fort Wayne on August 1, 2016. Mother

      gave Father a week’s notice of her impending marriage and informed him of

      her intent to relocate only after confronted by Father.


[8]   After Mother and D.B. married and Father learned of her intent to move with

      Child to Fort Wayne, Father conducted an internet search of D.B.’s address


      Court of Appeals of Indiana | Memorandum Decision 01A02-1611-JP-2729 | June 21, 2017   Page 4 of 11
       and learned that D.B. was a registered sex offender. Father confronted Mother

       with the information and informed her that he was terminating her physical

       custody until he could find out more about D.B. and the circumstances

       surrounding his conviction. Father told Mother that he would permit her to

       have visitation with Child so long as he or his mother were present to ensure

       that Mother would not have Child around D.B. Father offered Mother

       parenting time on several occasions, subject to his requested accommodations

       to prevent D.B. from being around Child, but Mother refused, believing that

       Child would not understand the circumstances.


[9]    On July 27, 2016, Father filed a Motion for Modification of Child Custody

       asserting that there had been a substantial change in circumstances such that a

       modification of the joint child custody order was in the best interests of Child.

       Specifically, Father stated that “it ha[d] come to [his] attention that Mother

       recently married [D.B.], who was convicted of child molesting . . . and is a

       registered sex offender,” and that he had “grave concerns about the safety of

       [Child] if [Child] is permitted to be around [D.B.]” Id. at 33, 34. On August

       25, 2016, Mother filed a Verified Application for Order to Show Cause, For

       Finding of Contempt, and For Enforcement of Custody Order based on

       Father’s refusal to allow Child to be in her care unless she agreed to his terms.


[10]   The trial court held a hearing on the parties’ motions on August 29, 2016.

       Father testified and requested that he be awarded sole custody of Child and that

       Mother have restricted visitation. Father admitted to the court that at the time

       of the hearing he was serving home detention for a conviction related to his

       Court of Appeals of Indiana | Memorandum Decision 01A02-1611-JP-2729 | June 21, 2017   Page 5 of 11
       possession of marijuana and paraphernalia. Mother, D.B., D.B.’s probation

       officer, and D.B.’s mental health counselor testified at the hearing. D.B.’s

       mental health counselor summarized his interactions with D.B., explained that

       the results of various assessments in which D.B. participated indicated that

       D.B. was not a danger to Child, and testified that he had formed a similar

       opinion. At the conclusion of the hearing, the trial court took the matter under

       advisement.


[11]   On September 21, 2016, the trial court entered its order granting Father sole

       custody and providing Mother with restricted parenting time. 3 Specifically, the

       court ordered that Mother was to have parenting time on alternate weekends

       and scheduled holidays for ten hours per day. The trial court found that

       overnight visitation with Mother was not appropriate and specified that Child

       was to be returned at least one hour before bedtime. The trial court also

       determined that Mother was to have no mid-week visitation on account of

       Child’s age and “the distance created between the parties by [M]other.” Id. at

       22. The trial court incorporated the safety plan4 devised by D.B.’s counselor




       3
        In its order, the trial court also denied Mother’s motion in all respects. Mother does not challenge the trial
       court’s order in this regard.
       4
         The safety plan required Mother to ensure that Child was never left alone with D.B.; that D.B. not be
       permitted to engage in any type of horseplay, tickling, wrestling, touching, hugging, or kissing with Child;
       that D.B. not be permitted to whisper or engage in private conversations with Child; that D.B. not be
       permitted to use any bathroom facility if Child is also in the facility; and that Mother ensure that Child is
       properly dressed during her parenting time.

       Court of Appeals of Indiana | Memorandum Decision 01A02-1611-JP-2729 | June 21, 2017                Page 6 of 11
       and ordered Mother to follow such plan during her parenting time with Child.

       Mother appeals this order.


                                           Discussion & Decision


[12]   We initially observe that Father has not filed an appellate brief. Accordingly,

       we will not undertake the burden of developing arguments for Father. See

       Maser v. Hicks, 809 N.E.2d 429, 432 (Ind. Ct. App. 2004). When an appellee

       does not file a brief, we apply a less stringent standard of review and may

       reverse when the appellant establishes prima facie error. Id. “‘Prima facie’ is

       defined as ‘at first sight, on first appearance, or on the face of it.’” Id. (quoting

       Parkhurst v. Van Winkle, 786 N.E.2d 1159, 1160 (Ind. Ct. App. 2003)).


[13]   Mother argues that the trial court abused its discretion in modifying custody.

       Our standard of review in such cases is well settled:

               When reviewing a custody determination, we afford the trial
               court considerable deference as it is the trial court that observes
               the parties’ conduct and demeanor and hears their testimonies.
               Kondamuri v. Kondamuri, 852 N.E.2d 939, 945-46 (Ind. Ct. App.
               2006). We review custody modifications for an abuse of
               discretion “with a preference for granting latitude and deference
               to our trial judges in family law matters.” Werner v. Werner, 946
               N.E.2d 1233, 1244 (Ind. Ct. App. 2011) (quoting K.I. ex rel. J.I. v.
               J.H., 903 N.E.2d 453, 457 (Ind. 2009)), trans. denied. We will not
               reweigh the evidence or judge the credibility of witnesses.
               Kondamuri, 852 N.E.2d at 946. Rather, we will reverse the trial
               court’s custody determination based only upon a trial court’s
               abuse of discretion that is “clearly against the logic and effect of
               the facts and circumstances or the reasonable inferences drawn
               therefrom.” Id. “[I]t is not enough that the evidence might

       Court of Appeals of Indiana | Memorandum Decision 01A02-1611-JP-2729 | June 21, 2017   Page 7 of 11
                support some other conclusion, but it must positively require the
                conclusion contended for by the appellant before there is a basis
                for reversal.” Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002)
                (quoting Brickley v. Brickley, 247 Ind. 201, 210 N.E.2d 850, 852
                (1965)).


       In re Paternity of C.S., 964 N.E.2d 879, 883 (Ind. Ct. App. 2012), trans. denied.


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

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

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

       factors that the court may consider under I.C. § 31-14-13-2. I.C. § 31-14-13-6.5

       I.C. § 31-14-13-2 provides that the court “shall consider all relevant factors,”

       including specifically:


                (1) The age and sex of the child.


                (2) The wishes of the child’s parents.


                (3) The wishes of the child, with more consideration given to the
                child’s wishes if the child is at least fourteen (14) years of age.


                (4) The interaction and interrelationship of the child with:




       5
         Mother and the trial court cite to Indiana Code §§ 31-17-2-21 and 31-17-2-8, - 15, which are applicable to
       determining the modification of custody in a dissolution proceeding. When determining the modification of
       custody in a paternity proceeding, as we have in this appeal, I.C. §§ 31-14-13-6 and 31-14-13-2 are applicable.
       Nevertheless, the paternity and dissolution statutes contain nearly identical language and now involve the
       same standard of review. See Joe v. Lebow, 670 N.E.2d 9, 16-20 (Ind. Ct. App. 1996) (discussing the history of
       the dissolution and paternity custody modification statutes).

       Court of Appeals of Indiana | Memorandum Decision 01A02-1611-JP-2729 | June 21, 2017              Page 8 of 11
                        (A) the child’s parents;


                        (B) the child’s siblings; and


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


               (5) The child’s adjustment to home, school, and community.


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


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


               (8) Evidence that the child has been cared for by a de facto
               custodian, and if the evidence is sufficient, the court shall
               consider the factors described in section 2.5(b) of this chapter.


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

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

       770 N.E.2d 304, 307 (Ind. 2002).


[15]   Here, the court concluded that there had been a substantial change “in Father’s

       wishes;” “the interaction and interrelationship of [Child] with Mother on

       account of her decision to marry [D.B.];” and in [Child’s] adjustment to the

       [Child’s] home and community on account of Mother’s decision to move to

       Fort Wayne with [D.B.]” Appellant’s Appendix Vol. 2 at 22. The trial court

       expressed concern about Mother’s failure to communicate with Father

       concerning important matters such as her impending marriage, intent to move,

       Court of Appeals of Indiana | Memorandum Decision 01A02-1611-JP-2729 | June 21, 2017   Page 9 of 11
       and D.B.’s criminal past. Implicit in the trial court’s findings is that the trial

       court found that custody modification was in Child’s bests interests. The trial

       court’s findings adequately support its decision to modify the joint custody

       order and award Father sole custody of Child. The trial court did not abuse its

       discretion in this regard.


[16]   Aside from the decision to modify custody, Mother argues that the trial court

       abused its discretion in restricting her parenting time without first determining

       that parenting time might endanger Child’s health and well-being or impair his

       emotional development.6 I.C. § 31-14-14-1, which outlines the parenting time

       rights of a noncustodial parent in a paternity action, provides that “[a]

       noncustodial 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 I.C. § 31-14-14-1 uses the term ‘might,’ this court

       interprets the statute to mean that a court may not restrict visitation unless that

       visitation 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) (quoting Farrell v. Littell, 790 N.E.2d 612,

       616 (Ind. Ct. App. 2003)). “By ‘its plain language,’ Indiana Code section 31-

       14-14-1 requires a court to make a specific finding ‘of physical endangerment or




       6
        In making this argument, Mother cites to Ind. Code § 31-1-11.5-24, which was repealed in 1997. The
       corollary to this statute applicable in this paternity action is found in Ind. Code § 31-14-14-1.

       Court of Appeals of Indiana | Memorandum Decision 01A02-1611-JP-2729 | June 21, 2017        Page 10 of 11
       emotional impairment prior to placing a restriction on the noncustodial parent’s

       visitation.’” Farrell, 790 N.E.2d at 616 (quoting In re Paternity of V.A.M.C., 768

       N.E.2d 990, 1001 (Ind. Ct. App. 2002), reh’g granted on other grounds).


[17]   Here, the trial court restricted Mother’s parenting time, but did not make a

       specific finding that visitation would endanger Child’s physical health or well-

       being or significantly impair Child’s emotional development. Mother has

       established prima facie error in this regard. Accordingly, we remand to the trial

       court with instructions to make findings to support the parenting time

       restrictions or enter an order without said restrictions. See Walker, 911 N.E.2d

       at 130 (remanding with instructions to trial court to enter an order with findings

       sufficient to support a restriction on visitation or to enter an order that did not

       contain a visitation restriction).


[18]   Judgment affirmed in part, reversed in part, and remanded with instructions.


       Kirsch, J. and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 01A02-1611-JP-2729 | June 21, 2017   Page 11 of 11
