MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                                       FILED
court except for the purpose of establishing                               Aug 01 2018, 8:23 am

the defense of res judicata, collateral                                         CLERK
                                                                            Indiana Supreme Court
estoppel, or the law of the case.                                              Court of Appeals
                                                                                 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                         August 1, 2018
T.A. (Minor Child):                                       Court of Appeals Case No.
                                                          18A-JP-238
                                                          Appeal from the Adams Circuit
C.B.,                                                     Court
Appellant-Petitioner,                                     The Honorable Chad E. Kukelhan,
                                                          Judge
        v.
                                                          Trial Court Cause No.
                                                          01C01-1503-JP-11
L.A.,
Appellee-Respondent.



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-JP-238 | August 1, 2018                       Page 1 of 11
                                           Case Summary
[1]   C.B. (“Mother”) appeals an order restricting her parenting time with T.A.

      (“Child”), such that overnights are excluded, upon the petition of L.A.

      (“Father”). She presents the sole issue of whether the trial court, in response to

      this Court’s order of remand, entered findings insufficient to support the

      parenting time restriction. We affirm.



                            Facts and Procedural History
[2]   The relevant facts were recited by this Court in the original direct appeal:


              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.” Mother
              eventually obtained employment in Decatur and arranged for
              Child to attend daycare nearby.


              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. D.B.
              explained the circumstances giving rise to his conviction,
              admitting that when he was twenty-one, he and an underage girl
              engaged in oral sex outside a bowling alley. He claimed that he
              thought the girl was sixteen, but that she in fact was only
              thirteen.




      Court of Appeals of Indiana | Memorandum Decision 18A-JP-238 | August 1, 2018   Page 2 of 11
        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.


        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 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


Court of Appeals of Indiana | Memorandum Decision 18A-JP-238 | August 1, 2018   Page 3 of 11
                 the McDonalds in Berne, Indiana or other place as the
                 parties may agree.


        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 [a] 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.


        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.


        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 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.



Court of Appeals of Indiana | Memorandum Decision 18A-JP-238 | August 1, 2018   Page 4 of 11
        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.]” 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.


        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
        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.


        On September 21, 2016, the trial court entered its order granting
        Father sole custody and providing Mother with restricted
        parenting time. 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

Court of Appeals of Indiana | Memorandum Decision 18A-JP-238 | August 1, 2018   Page 5 of 11
              distance created between the parties by [M]other.” The trial
              court incorporated the safety plan devised by D.B.’s counselor
              and ordered Mother to follow such plan during her parenting
              time with Child.


      In the Matter of the Paternity of T.A., No. 01A02-1611-JP-2729, slip op. at 1-3

      (Ind. Ct. App. June 21, 2017) (internal citations and footnotes omitted).


[3]   On appeal, Mother argued that the trial court abused its discretion in granting

      Father sole custody of T.A. and in restricting her parenting time. See id. at 1.

      As to the custody decision, we found no abuse of discretion. Id. at 4. However,

      with respect to the parenting time restriction, we found remand necessary,

      stating:


              [T]he 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.


      Id. at 5.


[4]   On remand, the trial court entered its “Order of the Court Supporting Parenting

      Time Restriction” in fourteen paragraphs:


              1. Mother chose to begin a relationship with a convicted child
                 molester.


              2. Mother chose to marry a convicted child molester.

      Court of Appeals of Indiana | Memorandum Decision 18A-JP-238 | August 1, 2018   Page 6 of 11
        3. Mother chose to move the child into the home of a convicted
           child molester.


        4. Mother failed to disclose the facts contained in paragraphs 1,
           2, and 3 of this order in a timely manner to Father.


        5. Mother chose to deceive Father and placed her relationship
           with a convicted child molester above the best interest of her
           child.


        6. Mother created and perpetuated a feeling of distrust between
           she and Father.


        7. Father’s distrust of Mother and said convicted child molester
           permeates the relationships between Mother, Father, child
           molester and most of all the Child.


        8. A safety plan remains in full force and effect to protect the
           Child from the convicted child molester during daytime
           parenting time with Mother.


        9. Mother was afforded no overnights with the child as the
           Court finds that the Child is more vulnerable at night when
           Mother will be sleeping.


        10. The Court ordered Mother’s overnight parenting time
            restricted based on the evidence and conclusions contained in
            paragraphs 1-9 of this order.


        11. The Court further finds that the evidence and conclusions
            contained in paragraphs 1-9 support a finding and conclusion
            that it would be unreasonable to allow overnight parenting
            time.


Court of Appeals of Indiana | Memorandum Decision 18A-JP-238 | August 1, 2018   Page 7 of 11
              12. In addition, overnight parenting time would (1) endanger the
                  child’s physical health and well-being or (2) significantly
                  impair the child’s emotional development.


              13. All prior Orders of the Court to remain in full force and effect.


              14. The Clerk shall furnish a copy of this Order to the parties and
                  attorneys of record.


      Appealed Order at 1-2. Mother now appeals.



                                 Discussion and Decision
[5]   At the outset, we note that Father has not filed an appellee’s brief. When an

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

      an argument for the appellee. Santana v. Santana, 708 N.E.2d 886, 887 (Ind. Ct.

      App. 1999). Applying a less stringent standard of review, we may reverse the

      trial court if the appellant can establish prima facie error. Id. “Prima facie” has

      been defined as “at first sight, on first appearance, or on the face of it.”

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


[6]   Indiana has long recognized that the right of parents to visit their children is a

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

      Patton, 48 N.E.3d 17, 21 (Ind. Ct. App. 2015). A party who seeks to restrict a

      parent’s visitation bears the burden of presenting evidence justifying a

      restriction. In re Paternity of P.B., 932 N.E.2d 712, 719 (Ind. Ct. App. 2010).




      Court of Appeals of Indiana | Memorandum Decision 18A-JP-238 | August 1, 2018   Page 8 of 11
[7]   Indiana Code Section 31-14-14-1 provides that a “non-custodial parent is

      entitled to reasonable parenting time rights unless the court finds, after a

      hearing, that parenting time might: (1) endanger the child’s physical health and

      well-being; or (2) significantly impair the child’s emotional development.”

      Even though the statute uses the term “might,” this Court has interpreted the

      statute to mean that a court may not restrict parenting time unless that

      parenting time would endanger the child’s physical health or well-being or

      significantly impair the child’s emotional development. Walker v. Nelson, 911

      N.E.2d 124, 130 (Ind. Ct. App. 2009). “Indiana Code § 31-14-14-1, by its plain

      language, requires a court to make a finding of physical endangerment or

      emotional impairment prior to placing a restriction on the noncustodial parent’s

      visitation.” In re Paternity of V.A.M.C., 768 N.E.2d 990, 1001 (Ind. Ct. App.

      2002).


[8]   Here, the trial court’s order on remand restricted Mother from exercising

      overnight parenting time and specified, “overnight parenting time would (1)

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

      the child’s emotional development.” Appealed Order at 2. In compliance with

      this Court’s remand order, the trial court entered the requisite statutory finding

      to support the restriction it imposed.


[9]   However, Mother contends that the order does not provide for adequate

      appellate review and asks that we vacate it or remand the matter a second time.

      Specifically, Mother argues that the trial court entered “conclusions, not

      findings from the evidence on the trial record,” Appellant’s Brief at 17, the

      Court of Appeals of Indiana | Memorandum Decision 18A-JP-238 | August 1, 2018   Page 9 of 11
       reference to endangerment lacked “explanation by [the] trial court as to how the

       Conclusion was reached from the evidence,” id. at 19, some paragraphs relate

       to “bad judgment” as opposed to a “statutory factor,” id. at 22, and reference is

       made to a “safety plan [that] was terminated upon D.B.’s satisfactory

       completion of probation on May 16, 2016,” id.


[10]   To the extent that Mother suggests the trial court was required to enter findings

       of fact and conclusions thereon pursuant to Indiana Trial Rule 52, the statute at

       issue does not incorporate this requirement. It is clear from the trial court’s

       findings and order on remand that the trial court considered D.B.’s criminal

       history and Mother’s concealment of that history from Father in evaluating the

       risk of harm to Child. To the extent that Mother suggests reweighing of the

       evidence, we cannot oblige. Parenting time decisions are committed to the

       sound discretion of the trial court, and we will neither reweigh the evidence nor

       reexamine the credibility of the witnesses. Walker, 911 N.E.2d at 130.


[11]   As for Mother’s contention that the trial court entered an “erroneous

       unsupported conclusion,” Appellant’s Brief at 25, with reference to an expired

       safety plan, we disagree. D.B.’s testimony about the safety plan expiration was

       equivocal but he appeared to believe that the plan would remain in place until

       he completed counseling.1 His therapist testified and clarified that there was

       “no court punishment for violating the safety plan” because D.B. had



       1
        D.B. testified that the safety plan would expire “as soon as [he] was released from counseling,” but when
       asked “so your safety plan is expired,” he replied: “I have no idea.” (Tr. at 26.)

       Court of Appeals of Indiana | Memorandum Decision 18A-JP-238 | August 1, 2018                  Page 10 of 11
       completed probation. (Tr. at 41.) However, the therapist opined that it was a

       “good practice” to incorporate such a safety plan into the custody order. Id.

       Thereafter, Father’s counsel requested inclusion of a safety plan and Mother’s

       attorney assured the trial court “there’s a safety plan in place.” (Tr. at 46.) As

       we observed during the prior appeal, “The trial court incorporated the safety

       plan devised by D.B.’s counselor and ordered Mother to follow such plan

       during her parenting time with Child.” In re T.A., slip op at 3. As such, the

       subsequent order’s recognition of the ongoing safety plan was not erroneous.



                                                Conclusion
[12]   The findings of the trial court upon remand were sufficient to permit appellate

       review. The trial court entered the requisite statutory finding of endangerment

       to support a restriction of Mother’s parenting time. Mother cannot prevail on

       her argument that the trial court failed to comply with the order of remand.


[13]   Affirmed.


       Mathias, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-JP-238 | August 1, 2018   Page 11 of 11
