MEMORANDUM DECISION                                                           FILED
                                                                         May 03 2018, 5:53 am
Pursuant to Ind. Appellate Rule 65(D),                                        CLERK
this Memorandum Decision shall not be                                     Indiana Supreme Court
                                                                             Court of Appeals
regarded as precedent or cited before any                                      and Tax Court


court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                  ATTORNEY FOR APPELLEE
Holly J. Wanzer                                          Amy O. Carson
Nicole Makris                                            MASSILLAMANY JETER & CARSON
WANZER EDWARDS, PC                                       LLP
Indianapolis, Indiana                                    Fishers, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In re the Paternity of K.W.                              May 3, 2018
(Minor Child):                                           Court of Appeals Case No.
                                                         49A02-1711-JP-2639
                                                         Appeal from the Marion Superior
K.P.,                                                    Court
Appellant-Respondent,                                    The Honorable James B. Osborn,
                                                         Judge
        v.
                                                         Trial Court Cause No.
                                                         49D14-1701-JP-1552
W.W.,
Appellee-Petitioner.



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1711-JP-2639 | May 3, 2018                Page 1 of 10
                                          Case Summary
[1]   K.P. (“Mother”) appeals an order placing eight-year-old K.W. in the physical

      custody of W.W. (“Father”). We address a single, consolidated issue for

      review: whether the custody order was entered without affording Mother due

      process. We reverse and remand for further proceedings.



                            Facts and Procedural History
[2]   On October 14, 2009, K.W. was born out-of-wedlock to Mother and Father.

      Mother and Father had long been involved in an on-and-off romantic

      relationship. Their eldest child, W.T.W., was ten years old when K.W. was

      born.1 Over the years, Father and Mother maintained separate homes in

      Indianapolis, and their romantic relationship continued to be on-and-off.

      Father sometimes had an access code or key to Mother’s residence and stayed

      there. Father also purchased a residence in Ohio, where he has full-time

      employment.


[3]   When W.T.W. was a high school sophomore, he decided that he wanted to

      reside exclusively with Father in Ohio. Father obtained custody of W.T.W.

      through legal proceedings in Ohio. In 2013 or 2014, “when W.T.W. came to




      1
       W.T.W. is now emancipated and living in Ohio. K.W. and W.T.W. also have a half-sibling who is a few
      years older than K.W. and is Father’s child from another relationship.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1711-JP-2639 | May 3, 2018        Page 2 of 10
      live with Father,” Mother’s and Father’s romantic relationship ended. (Tr. Vol.

      I, pg. 114.) K.W. remained with Mother.


[4]   On January 10, 2017, Father filed a Verified Emergency Petition Regarding

      Denial of Parenting Time and Motion to Establish Custody, Parenting Time

      and Child Support. Father sought sole physical custody of K.W. and planned

      to move her to Ohio and enroll her in a private parochial school there. The

      parties reached an interim agreement permitting Father to exercise significant,

      almost half-time, overnights with K.W.


[5]   The trial court conducted hearings on October 10 and October 20, 2017. The

      parties stipulated to the amount of time to be allotted for the presentation of

      evidence. Three minutes before his time expired, Father was called as a

      rebuttal witness and proffered Exhibit 26 – consisting of 202 pages purportedly

      depicting text messages between the parties. The trial court excluded this

      proffered exhibit for lack of foundation. However, after the hearing was

      adjourned on October 20, 2017, the trial court entered an Admission Order of

      the same date. The order reversed the trial court’s exclusion of Father’s Exhibit

      26.


[6]   Four days later, on October 24, 2017, the trial court issued an order providing

      in relevant part:


              It is in the best interests of the Child that Father and Mother
              share joint legal custody of the Child with Father exercising
              primary physical custody. If there is an impasse on a decision,
              Father shall make the final determination.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1711-JP-2639 | May 3, 2018   Page 3 of 10
      (Appealed Order at 1.) The trial court, which had indicated by its commentary

      and exclusion of certain evidence that it was making an initial custody

      determination based only upon best interests of the child, did not enter findings

      related to a change in circumstances to support custody modification. Mother

      now appeals.



                                 Discussion and Decision
[7]   Mother alleges that she was denied due process. She argues that the trial court

      failed to enter adequate findings based upon the appropriate legal standard for

      making the custody determination and that the trial court’s sua sponte post-trial

      admission of evidence deprived her of any opportunity to challenge the

      belatedly-admitted evidence.


[8]   Procedural due process must be provided to protect the substantive rights of the

      parties in child custody proceedings, and an opportunity to be heard on veracity

      and probity of that considered by the trial court is essential before a parent can

      be deprived of custody. Jendreas v. Jendreas, 664 N.E.2d 367, 370 (Ind. Ct. App.

      1996) (citing Van Etta v. Van Etta, 583 N.E.2d 767, 768 (Ind. Ct. App. 1991),

      trans. denied. Also, the relevant statutes contemplate that a parent will not be

      deprived of custody without an evidentiary hearing to determine whether there

      has been a substantial change in one or more of the factors relevant to the

      child’s best interests and whether modification would in fact be in the child’s

      best interests. In re Paternity of R.A.F., 766 N.E.2d 718, 726 (Ind. Ct. App.

      2002).

      Court of Appeals of Indiana | Memorandum Decision 49A02-1711-JP-2639 | May 3, 2018   Page 4 of 10
[9]   Indiana Code Section 31-14-13-2 provides that the court shall make an initial

      custody determination in a paternity case by looking at all relevant factors,

      including the factors listed in subsections (1) through (8) of the statute, to

      determine the best interests of the child. Those factors are:


              (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:


                  (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[.]


      Court of Appeals of Indiana | Memorandum Decision 49A02-1711-JP-2639 | May 3, 2018   Page 5 of 10
[10]   Indiana Code Section 31-14-13-6 prescribes a stricter standard for modification

       of a child custody order in a paternity action. A custody order may be modified

       only if it is in the best interests of the child and there is a “substantial change in

       one (1) or more of the factors that the court may consider under [Ind. Code §

       31-14-13-2 or 31-14-13-2.5]…” Ind. Code § 31-14-13-6.


[11]   In an initial custody determination, there is no presumption in favor of either

       parent and the trial court’s determination is to be based upon the best interests

       of the child. See in re Paternity of Winkler, 725 N.E.2d 124, 127 (Ind. Ct. App.

       2000). However, to obtain a modification of custody, the burden is on the

       petitioner to demonstrate a substantial change in circumstances. Id. The

       stricter rationale is required because permanence and stability are deemed

       crucial for the wellbeing and happiness of the child. Id.


[12]   In determining whether an initial custody determination standard or

       modification standard is appropriate, we look to the unique facts of the case.

       Id. In Winkler, the father acquiesced to Mother having custody of the child for

       ten years and the mother had custody by operation of law because the child was

       born out of wedlock. See id. (citing Ind. Code § 31-14-13-1, which provides that

       “[a] biological mother of a child born out of wedlock has sole legal custody of

       the child, … unless a statute or court order provides otherwise[.]”). In those

       circumstances, we found the more stringent standard for modification of

       custody to be applicable despite the lack of an initial court determination. See

       id. at 128.



       Court of Appeals of Indiana | Memorandum Decision 49A02-1711-JP-2639 | May 3, 2018   Page 6 of 10
[13]   Here, there has not been a prior court order concerning K.W.’s custody.

       Mother had custody of K.W. by operation of law and Father acquiesced to

       Mother’s physical custody of K.W. for seven years before he filed his petition.

       In Winkler, we recognized that “the same concerns about stability and

       continuity” arose in the context of a long-standing custody arrangement even

       absent an “initial custody determination” by a court. Id. The Winkler Court

       held: “after a long acquiescence by a father in a paternity context, a trial court

       may not send a child to live with the other parent unless there is a showing

       pursuant to Ind. Code § 31-14-13-6.” Id. Although we recognize that Father’s

       acquiescence here is for a lesser term of years than was the father’s in Winkler, it

       is nonetheless a long acquiescence and Mother was deprived of custody she had

       long exercised. The trial court was obliged to go beyond a best interests

       inquiry, i.e., the court should have allowed relevant evidence to support

       consideration of whether there was a substantial change in one or more of the

       statutory factors.


[14]   Also, Mother claims that she was afforded no meaningful opportunity to be

       heard when the trial court made a sua sponte post-hearing decision to admit

       Father’s Exhibit 26. On the final hearing day, Father brought to court a

       compilation of 202 pages purportedly depicting text messages between the

       parents. During cross-examination of Mother, Father’s counsel asked Mother

       to recite her cellular telephone number and Mother did so. Father’s counsel

       sought to admit the exhibit during Mother’s testimony but, after objection from

       Mother’s counsel, indicated that the exhibit would be proffered during Father’s


       Court of Appeals of Indiana | Memorandum Decision 49A02-1711-JP-2639 | May 3, 2018   Page 7 of 10
       rebuttal testimony. At some point, the hearing was adjourned for five minutes

       to permit Mother to review the 202 pages.


[15]   Father was called as a rebuttal witness and the trial court cautioned that he had

       three minutes remaining to present evidence. Father testified that he had

       printed out texts that had been “on his current phone” using an application

       called WhatsApp. (Tr. Vol. II, pg. 77.) Father was unable to provide detail

       about the application; he did not testify to specific dates covered by Exhibit 26;

       and he did not establish the cellular number used by himself or Mother during

       the dates appearing on Exhibit 26. The trial court excluded the proffered

       exhibit because of lack of foundation to support its admission.


[16]   The trial court’s post-hearing order indicated that, upon review of the authority

       of In re Paternity of B.B., 1 N.E.3d 151 (Ind. Ct. App. 2013), the trial court had

       found Exhibit 26 to be admissible. There, a panel of this Court discussed

       admissibility of transcribed text messages between parents:


               When the substance of a text message is offered for an
               evidentiary purpose, the text message must be separately
               authenticated pursuant to Ind. Evidence Rule 901(a). Hape v.
               State, 903 N.E.2d 977, 990 (Ind. Ct. App. 2009), trans. denied.
               Rule 901 provides that “[t]he requirement of authentication or
               identification as a condition precedent to admissibility is satisfied
               by evidence sufficient to support a finding that the matter in
               question is what its proponent claims.” Absolute proof of
               authenticity is not required. Fry v. State, 885 N.E.2d 742, 748
               (Ind. Ct. App. 2008), trans. denied. When evidence establishes a
               reasonable probability that an item is what it is claimed to be, the
               item is admissible. Thomas v. State, 734 N.E.2d 572, 573 (Ind.
               2000).
       Court of Appeals of Indiana | Memorandum Decision 49A02-1711-JP-2639 | May 3, 2018   Page 8 of 10
       In re B.B., 1 N.E.3d at 156. The father in that case had acknowledged that the

       telephone numbers were his and the mother’s; the mother had described the

       evidentiary exhibit as consisting of texts sent between her and the father. See id.

       at 156-58. We found that there was sufficient evidence to support a finding that

       the text messages were what the mother claimed them to be, and that a

       sufficient foundation had been laid for their admission. Id. at 159.

       Accordingly, we found no abuse of discretion in the trial court’s decision to

       admit them. Id.


[17]   Be that as it may, we are not reviewing for an abuse of discretion the trial

       court’s decision to admit evidence over one party’s objection at a hearing.

       Rather, we are confronted with a post-hearing reversal of a decision on

       admissibility which, by its procedural irregularity and lack of specificity,2 denied

       Mother the opportunity to be heard. We agree with Mother that she was not

       afforded procedural due process in this regard. See Paternity of R.A.F., 766

       N.E.2d at 726 (“An opportunity to be heard is essential before a parent can be

       deprived of custody.”).




       2
         It is not apparent whether the trial court found all or less than all the texts to be relevant or to what extent
       the trial court relied upon the substance of any of the texts in making its custody determination.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1711-JP-2639 | May 3, 2018                     Page 9 of 10
                                               Conclusion
[18]   The trial court’s blanket exclusion of evidence of a substantial change in

       circumstances and post-hearing reversal of an evidentiary ruling deprived

       Mother of a meaningful opportunity to be heard.


[19]   Reversed and remanded for further proceedings consistent with this opinion.


       Crone, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1711-JP-2639 | May 3, 2018   Page 10 of 10
