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                    Mar 29 2017, 10:44 am

the defense of res judicata, collateral                              CLERK
estoppel, or the law of the case.                                Indiana Supreme Court
                                                                    Court of Appeals
                                                                      and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
John P. Brinson                                          Craig Goedde
Evansville, Indiana                                      Johnson, Carroll, Norton, Kent &
                                                         Goedde, P.C.
                                                         Evansville, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Valerie Jamison,                                         March 29, 2017
Appellant-Respondent,                                    Court of Appeals Case No.
                                                         82A01-1608-JP-1932
        v.                                               Appeal from the Vanderburgh
                                                         Superior Court
Mason Holden,                                            The Honorable Renee Ferguson,
Appellee-Petitioner.                                     Magistrate
                                                         Trial Court Cause No.
                                                         82D01-1202-JP-82



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 82A01-1608-JP-1932| March 29, 2017     Page 1 of 11
                                  Case Summary and Issue
[1]   Valerie Jamison (“Mother”) appeals the trial court’s order modifying custody of

      her child, J.H., from her to the child’s father, Mason Holden (“Father”). She

      raises several issues for our review, which we consolidate and restate as one:

      whether the trial court denied her due process by allowing her counsel to

      withdraw on the day of the hearing, denying her a continuance to find other

      counsel, and then not allowing her to present evidence, cross-examine

      witnesses, or be heard on her own behalf at the custody modification hearing.

      Concluding the trial court denied Mother due process by the manner in which it

      conducted the modification hearing, we reverse and remand.



                             Facts and Procedural History
[2]   Father established paternity of J.H. in 2012. Mother had primary custody of

      J.H. In June 2015, Mother was arrested, and on June 26, 2015, the Indiana

      Department of Child Services (“DCS”) opened child in need of services

      (“CHINS”) cases with respect to J.H. and Mother’s other child.1 Also on June

      26, 2015, Father filed in the paternity case an emergency petition to modify

      custody, requesting custody of J.H. be granted to him and Mother’s parenting

      time be restricted “to alleviate any harmful issues to the child.” Appellant’s




      1
        Father is not the parent of Mother’s other child. The events in J.H.’s case have had no impact on the other
      child’s CHINS case; as of the custody modification hearing in this case on June 13, 2016, that child remained
      a CHINS and was in a foster home.

      Court of Appeals of Indiana | Memorandum Decision 82A01-1608-JP-1932| March 29, 2017             Page 2 of 11
      Appendix, Volume 2 at 18. At the CHINS initial hearing on June 30, 2015, the

      CHINS court placed J.H. with Father. Mother was represented in both the

      CHINS and the paternity cases by private counsel.


[3]   In October 2015, J.H.’s CHINS and paternity cases were consolidated and the

      paternity court assumed jurisdiction. The parties agreed Father would have

      temporary custody of J.H. pending a modification hearing and Mother was

      given supervised parenting time. DCS then terminated its wardship of J.H. in

      the CHINS case. A modification hearing was scheduled for June 13, 2016.


[4]   On June 7, 2016, Mother’s counsel filed a motion to withdraw, alleging she had

      been unable to communicate with Mother and Mother had not maintained her

      contractual obligation to counsel. Counsel appeared at the scheduled

      modification hearing on June 13 and the trial court granted the motion to

      withdraw without objection from Mother. In sorting out who was in the

      courtroom and who should be allowed to stay before beginning the hearing, the

      following discussion occurred:

              Court: And, [Mother], did you intend to have your [m]other
              testify?
              Mother: I did not know that it was gonna – I thought I was
              gonna have longer – like more of a - I thought there was gonna
              be another court date before this one, actually.
              Court: No, we were set for trial today.
              Mother: Okay. It probably would help me. I mean, I -
              Court: Alright, [Mother’s mother], go ahead and have a seat out
              in the waiting area, please.
              Mother: I would really like to have an attorney when I -
              Court: You had an attorney, ma’am, that you didn’t cooperate

      Court of Appeals of Indiana | Memorandum Decision 82A01-1608-JP-1932| March 29, 2017   Page 3 of 11
              with.
              Mother: She withdrew while I was in rehab. She didn’t -
              Court: No, she withdrew – she didn’t file it until Friday.
              Mother: I didn’t get out until last night.
              ***
              Mother: Am I allowed to request Counsel?
              Court: Ma’am, you have already had – been afforded the
              opportunity to have an attorney and you did not cooperate with
              your attorney. . . . Ma’am you had an attorney that you hired.
              You failed to cooperate with that attorney and she has
              withdrawn her representation, which you had no objection to on
              the day of trial. We are no longer going to delay this matter.


      Transcript, Volume I at 6-8.


[5]   The trial court then took up the matter of a motion to quash filed by DCS.

      Apparently, Father had subpoenaed records from DCS, some of which involved

      Mother’s other child. Father’s attorney explained:

              [P]art of the Court’s order back on December 16, 2015 . . . I think
              the docket will reflect that there was a temporary order of
              custody that was granted to [Father]. Part of the Mother’s
              parenting time was conditioned upon the other child’s case. It
              was specifically referenced in the Court’s order.
              ***
              [T]he parenting time for [J.H.] was actually coupled on the other
              child’s case to ensure that the Mother was compliant with all
              services that were being provided to her [in that CHINS case].
              And if she was not then compliant with all those services there
              was to be no parenting time [with J.H.]


      Id. at 8-10. The trial court denied the motion to quash but ordered Father’s

      counsel to keep the information in the other child’s case file from being


      Court of Appeals of Indiana | Memorandum Decision 82A01-1608-JP-1932| March 29, 2017   Page 4 of 11
      disseminated or used for any purpose outside this case. The trial court then

      heard brief testimony from the DCS case manager for Mother’s other child.

      The case manager had been the child’s case manager for two and a half months

      and had not had contact with Mother. He testified the child had been in foster

      care since initially removed from Mother’s care in June 2015 and was doing

      well.


[6]   The trial court then ruled from the bench that it was granting Father’s petition

      for custody of J.H. and was ordering Mother to have parenting time with J.H.

      that mirrored what she was receiving with her other child through DCS.

      Mother protested:

              Mother: Your Honor, am I allowed to – you haven’t heard my
              words at all. You haven’t heard that I have so much to say. This
              is not fair.
              Court: Have I heard anything from the Father, ma’am?
              Mother: He doesn’t have to defend himself.
              Court: Have I heard anything from the Father?
              Mother: He has an attorney.
              Court: Have I heard anything from his attorney?
              Mother: Yes.
              Court: No, ma’am, I haven’t this morning. This record is – this
              is based strictly off your performance in your CHINS case.
              Mother: I have had contact with DCS. . . . I have two letters that
              I sent certified . . . letting her know when I went in.
              Court: [T]he Court is not changing its order. I am not holding
              this child in limbo any longer waiting for you to do whatever it is
              that you’re doing. So at this time I’m ordering that the Father
              has custody of the child, supervised parenting time.




      Court of Appeals of Indiana | Memorandum Decision 82A01-1608-JP-1932| March 29, 2017   Page 5 of 11
Id. at 14-15. The trial court reduced its ruling to a written order, which noted

Mother’s counsel was allowed to withdraw at the hearing and Mother’s request

for a continuance to hire new counsel was denied “inasmuch as today is the day

set for hearing in this matter . . ., Mother failed to adequately communicate . . .

with her prior attorney, for judicial economy, and that the best interests of the

child herein warrant some permanency to the Court’s prior temporary Orders.”

Appellant’s App., Vol. 2 at 11. The written order also notes the court took

judicial notice of the CHINS case for Mother’s other child and heard testimony

from the other child’s case manager.

        After hearing this testimony, having heard brief argument from
        the parties, having reviewed the pleadings filed in this matter,
        and being duly advised in the premises [the court] now finds as
        follows:


        ***


        4. The Court, having heard the facts and carefully considering
        the same to the custody factors outlined under Indiana Code §
        31-17-2-8, determines that [J.H.’s] best interests are best suited in
        the Father’s care and permanent custody.


Id. at 12-13. Mother filed a motion to correct error which the trial court denied.

This appeal ensued.



                           Discussion and Decision


Court of Appeals of Indiana | Memorandum Decision 82A01-1608-JP-1932| March 29, 2017   Page 6 of 11
                                     I. Standard of Review
[7]   We review a trial court’s custody modification decision for abuse of discretion,

      granting latitude and deference to our trial courts in family law matters. Wilson

      v. Myers, 997 N.E.2d 338, 340 (Ind. 2013). Accordingly, we will not reweigh

      the evidence, judge the credibility of the witnesses, or substitute our judgment

      for that of the trial court. Robertson v. Robertson, 60 N.E.3d 1085, 1091 (Ind. Ct.

      App. 2016). We will reverse the trial court’s custody decision only if it is clearly

      against the logic and effect of the facts and circumstances before the court or the

      reasonable inferences drawn therefrom. Id.


                                           II. Due Process
[8]   Mother contends the trial court’s order modifying custody following a hearing

      at which the trial court allowed her counsel to withdraw, denied her a

      continuance to obtain other counsel, and did not offer her an opportunity to

      speak or present evidence on her behalf resulted in a fundamentally unfair

      hearing and violated her due process rights.


[9]   The Due Process Clause of the United States Constitution prohibits state action

      that deprives a person of life, liberty, or property without a fair proceeding.

      D.T. v. Ind. Dep’t of Child Servs., 981 N.E.2d 1221, 1224 (Ind. Ct. App. 2013). A

      parent’s interest in the care, custody and control of his or her children is

      perhaps the oldest of our fundamental liberty interests. Bester v. Lake Cty. Office

      of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005) (quoting Troxel v.

      Granville, 530 U.S. 57, 65 (2000)). Because child custody proceedings implicate

      Court of Appeals of Indiana | Memorandum Decision 82A01-1608-JP-1932| March 29, 2017   Page 7 of 11
       the fundamental relationship between parent and child, Indiana courts

       recognize that procedural due process must be provided to protect the

       substantive rights of the parties. Fields v. Fields, 749 N.E.2d 100, 110 (Ind. Ct.

       App. 2001), trans. denied. It is axiomatic that one way a trial court may abuse

       its discretion in modifying custody is failing to follow proper procedure. Bailey

       v. Bailey, 7 N.E.3d 340, 343 (Ind. Ct. App. 2014). Due process requires

       reasonable notice and an opportunity to be heard before custody or support can

       be modified. White v. White, 796 N.E.2d 377, 383 (Ind. Ct. App. 2003).


[10]   If the State imparts a due process right, then it must give that right. A.P. v.

       Porter Cty. Office of Family & Children, 734 N.E.2d 1107, 1112 (Ind. Ct. App.

       2000), trans. denied. The Indiana legislature has provided a fairly detailed list of

       procedural requirements for courts to follow in custody and modification cases.

       See Ind. Code ch. 31-17-2.


               [W]hen such an important issue as the custody of children is
               involved, a modification generally can be ordered only after a
               party has filed a petition requesting such a modification, the
               other party has notice of the filing, and a proper evidentiary hearing
               is held at which both parties may be heard and the trial court [is] fully
               apprised of all necessary information regarding change of
               circumstances and a child’s best interests before deciding whether
               a modification should be ordered.


       Bailey, 7 N.E.3d at 344 (emphasis added). “An opportunity to be heard is

       essential before a parent can be deprived of custody.” Id. (citation omitted).




       Court of Appeals of Indiana | Memorandum Decision 82A01-1608-JP-1932| March 29, 2017   Page 8 of 11
[11]   Here, Father requested a change of custody, Mother had notice of the filing,

       and all parties appeared in court for a hearing. However, the trial court

       completely failed to give Mother a meaningful opportunity to be heard at the

       hearing. At the outset of the hearing, the trial court allowed Mother’s counsel

       to withdraw based on her counsel’s assertions that Mother had not been

       cooperative. Mother had no objection to this, but she also did not have much

       notice of it. According to Mother—and there is no evidence to the contrary—

       she was in rehab when counsel filed her motion to withdraw a week before the

       hearing, and only left rehab the day before the hearing. The trial court then

       denied Mother a continuance to seek other counsel or otherwise prepare to

       represent herself. Although the grant or denial of a motion for continuance is

       within the sound discretion of the trial court, denial of a continuance will be

       deemed an abuse of discretion if good cause is shown for granting the motion.

       F.M. v. N.B., 979 N.E.2d 1036, 1039 (Ind. Ct. App. 2012). The withdrawal of

       counsel does not entitle a party to an automatic continuance and the moving

       party must show diligence in procuring new counsel. Riggin v. Rea Riggin &

       Sons, Inc., 738 N.E.2d 292, 311 (Ind. Ct. App. 2000). In addition to only having

       a week’s notice of her counsel’s intent to withdraw, Mother apparently spent

       that week in rehab and her opportunities to procure other counsel were likely

       limited. That she did not object to her counsel’s withdrawal seems tied to her

       belief she would have additional time to prepare. Cf. Litherland v. McDonnell,

       796 N.E.2d 1237, 1240 (Ind. Ct. App. 2003) (noting no abuse of discretion will

       be found when the moving party has not shown she was prejudiced by the

       denial), trans. denied. We appreciate the trial court’s desire to bring this custody
       Court of Appeals of Indiana | Memorandum Decision 82A01-1608-JP-1932| March 29, 2017   Page 9 of 11
       matter to a close expeditiously. However, Father already had temporary

       custody of J.H., and therefore, a short continuance would have caused no

       prejudice to him and, more importantly, no harm to J.H. See J.P. v. G.M., 14

       N.E.3d 786, 790 (Ind. Ct. App. 2014) (“We must also consider whether a delay

       would have prejudiced the opposing party to an extent sufficient to justify

       denial of the continuance.”).


[12]   The denial of Mother’s motion for a continuance alone may not have deprived

       her of due process in this proceeding, but that denial must be considered in

       conjunction with the manner in which the trial court conducted the “hearing”

       in this case. The trial court did not offer Mother an opportunity to cross-

       examine the sole witness, present witnesses or evidence of her own, or allow

       her to speak on her own behalf. Both the trial court at the hearing and Father

       in his brief to this court assert there was no error in this because the trial court

       did not allow Father to present evidence or speak, either. See Tr., Vol. I at 14

       (“Have I heard anything from the Father, ma’am?”); Brief of Appellee at 9

       (“Mother fails to advise this Court that the Father also did not present any facts

       supporting his case.”). That does not excuse the trial court’s failure to allow

       Mother to be heard; in fact, it only bolsters our conclusion the trial court failed

       to fully apprise itself of all information necessary for deciding the question of

       modification. In fact, the only evidence adduced at the hearing concerned the

       CHINS proceeding for Mother’s other child. There was no evidence

       concerning J.H. at all. Although Mother’s entire situation is clearly relevant to

       the question of modifying custody of J.H., Indiana Code section 31-17-2-21


       Court of Appeals of Indiana | Memorandum Decision 82A01-1608-JP-1932| March 29, 2017   Page 10 of 11
       requires a court to find a substantial change in one or more statutory factors

       before it may modify custody. Those statutory factors concern “the child,”—

       here, J.H.—and his or her interaction with family members and adjustment to

       his or her living situation, among other things. Ind. Code § 31-17-2-8.

       Although the trial court stated in its order it had “heard the facts” and

       “carefully consider[ed]” them in relation to the relevant factors, Appellant’s

       App., Vol. 2 at 13, it is impossible to discern how it could have done so when

       no evidence was presented regarding those factors with respect to J.H.


[13]   The procedural irregularities in the trial court’s conduct of this modification

       hearing are of such significance that they denied Mother due process when

       modifying custody from her to Father. Accordingly, we reverse and remand

       this case for a proper evidentiary hearing at which all parties are allowed to be

       heard and the trial court receives and considers evidence concerning the

       statutory factors relevant to J.H. and any other evidence that bears on J.H.’s

       best interests.



                                               Conclusion
[14]   The trial court did not afford Mother a meaningful opportunity to be heard at

       the custody modification hearing and we therefore reverse the trial court’s order

       modifying custody of J.H. and remand for a full and complete hearing.


[15]   Reversed and remanded.


       Kirsch, J., and Barnes, J., concur.
       Court of Appeals of Indiana | Memorandum Decision 82A01-1608-JP-1932| March 29, 2017   Page 11 of 11
