MEMORANDUM DECISION
                                                                         FILED
Pursuant to Ind. Appellate Rule 65(D), this                         Nov 22 2016, 9:01 am

Memorandum Decision shall not be                                         CLERK
                                                                     Indiana Supreme Court
regarded as precedent or cited before any                               Court of Appeals
                                                                          and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEY FOR APPELLEE
Michael T. Hotz                                           David W. Stone, IV
Spitzer Herriman Stephenson                               Stone Law Office & Legal Research
Holderead Conner & Persinger, LLP                         Anderson, Indiana
Marion, Indiana


                                           IN THE
     COURT OF APPEALS OF INDIANA
In re the Paternity of E.E.,                              November 22, 2016
J.E.,                                                     Court of Appeals Case No.
                                                          27A04-1601-JP-204
Appellant-Petitioner,
                                                          Appeal from the Grant Superior
        v.                                                Court
                                                          The Honorable Jeffrey D. Todd,
T.C.,                                                     Judge
                                                          Trial Court Cause No.
Appellee-Respondent.                                      27D01-1109-JP-928




Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 27A04-1601-JP-204 | November 22, 2016      Page 1 of 16
[1]   J.E. (“Father”) appeals from the order of the trial court awarding custody of

      E.E. (“Child”) to T.C. (“Mother”). Father raises four issues which we

      consolidate and restate as whether the court erred in determining the custody of

      Child. We affirm.


                                       Facts and Procedural History

[2]   Child was born to Father and Mother on January 12, 2009, when Father was

      eighteen years old and Mother was sixteen years old. Mother and Father lived

      together several times during the first two and one-half years of Child’s life. At

      some point, Father and Mother separated permanently, and sometime in March

      2011 Father and Child moved in with Father’s father (“Grandfather”) and

      mother (“Grandmother,” and together with Grandfather, “Grandparents”).


[3]   On September 14, 2011, Father filed a Petition to Establish Paternity and for

      Emergency Custody. On October 31, 2011, the court issued an Agreed Order

      stating that the parties agreed that Father would have temporary custody of

      Child until further order of the court, that Mother would have

      supervised/restricted parenting time, and that, should something happen to

      Father, Grandparents would be appointed custodians over Child. At some

      point, Mother relocated from Marion, Indiana, to Decatur, Indiana, and

      traveled to Marion to exercise parenting time with Child.

[4]   On October 8, 2014, Mother filed a Petition to Modify Custody and requested a

      hearing, and the court later appointed a guardian ad litem (the “GAL”). The

      court held an evidentiary hearing on September 29 and November 5 and 6,


      Court of Appeals of Indiana | Memorandum Decision 27A04-1601-JP-204 | November 22, 2016   Page 2 of 16
      2015, at which it heard testimony from, among others, Father, Mother, child

      services workers, Grandfather, Child’s school teacher, Mother’s current

      husband, and a school psychologist. Father filed proposed findings of fact on

      November 24, 2015, and Mother filed proposed findings of fact on December 1,

      2015.


[5]   On December 31, 2015, the court entered Findings of Fact, Conclusions of Law,

      and Order for Judgment and attached a child support worksheet. Under a

      heading for findings of fact, the court found that Father’s September 2011

      petition resulted from the fact Child had been physically abused on or about

      August 26, 2011 while in Mother’s care, and the abuse was immediately

      reported to authorities, Mother was at work when the abuse occurred but

      acknowledged that she was using drugs at that time in her life, she was not

      charged criminally, and she and her boyfriend fled to Florida for approximately

      ten days.1 The court found that Mother exercised supervised/restricted

      parenting time until May 15, 2012, at which time the court entered an order

      granting her unsupervised visitation, that on June 11, 2013, the court held a

      hearing after which it ordered her parenting time to be supervised,2 and that




      1
       When asked how she returned, Mother testified she went to a place where there was a police officer, she
      was taken to hospital, her mother was contacted, and her mother and grandfather picked her up at the
      hospital.
      2
        The court found that, after the May 15, 2012 order, Mother violated the order by allowing non-family
      members to be present during her parenting time, as a result Father had petitioned to again restrict her
      parenting time, the court held a hearing on June 11, 2013, at which Mother failed to appear and of which she
      claims not to have received timely notice, and that following the presentation of evidence the court again
      ordered Mother’s parenting time to be supervised.


      Court of Appeals of Indiana | Memorandum Decision 27A04-1601-JP-204 | November 22, 2016          Page 3 of 16
      Mother thereafter relocated from Marion, Indiana to Decatur, Indiana with her

      then boyfriend because he found a higher paying job in Decatur.


[6]   The court found that Mother consistently traveled from Decatur to Marion over

      the next two years to exercise parenting time with Child, that her time with

      Child was sometimes supervised by Father but the majority of her visits were

      primarily supervised by Grandfather, and that the parenting time sessions were

      difficult in part because the two men supervising her time did little to hide their

      animosity toward her. The court found that despite these difficulties Mother

      continued to exercise her parenting time with Child when she was pregnant with

      twins and after she gave birth to them, one of whom has special medical

      needs, in August 2013. The court also noted that Mother filed her petition on

      October 8, 2014, that by agreement she was granted unsupervised parenting time

      on June 29, 2015, that this parenting time had gone well, and that Mother has

      a high school degree and had not used illegal drugs for over four years. The

      court found that Father has a GED and that, since October 31, 2011, he has

      worked numerous jobs, mostly on third shift.

[7]   The court further found that the evidence presented clearly demonstrates that

      Grandparents had been Child’s primary caregivers and de facto custodians for

      the last four years and that during this time Child has primarily lived at

      Grandparents’ home where he has remained at least five nights per week. The

      court stated it is troubled by the fact Grandfather routinely strips Child and

      photographs him after Mother exercises parenting time, that Grandfather has

      taken nearly one hundred photographs of Child, and that Father has done

      Court of Appeals of Indiana | Memorandum Decision 27A04-1601-JP-204 | November 22, 2016   Page 4 of 16
      nothing to stop it. It found that Father lost his job as a warehouse worker in

      September 2015 and currently lived in Grandparents’ home, that he recently

      became employed as a first shift cashier at a gas station and intends to continue

      residing at Grandparents’ home, and that, unlike the majority of his life during

      which he worked third shift jobs, Father believes his current job will allow him

      to spend more time with Child before and after school.


[8]   The court noted that Child was enrolled in the first grade, has experienced

      problems since starting elementary school and was found to qualify for special

      education services due to his emotional disability, that an individual education

      plan had been developed to help Child, and that there have been some

      improvements in Child’s behavior and performance since the plan was

      implemented.        The court found that Grandfather has been much more active

      than Father in monitoring Child’s school progress, and that Grandfather and

      Father would not tell Mother where Child was going to school and told her she

      was not permitted to contact Child’s school. The court noted that the GAL,

      after a thorough investigation, tendered a report recommending that Mother be

      awarded primary physical custody of Child, that Mother has matured

      significantly since she gave birth to Child at a very young age, and that she is

      now married to a responsible man who has a good job and is supportive of her.

      It also noted that Mother’s nurturing qualities were apparent to the court, and

      that on the other hand Father does not appear to have matured significantly

      since Child’s birth, has either left or been terminated from numerous jobs, has




      Court of Appeals of Indiana | Memorandum Decision 27A04-1601-JP-204 | November 22, 2016   Page 5 of 16
       married and divorced, has moved in and out of his parents’ home, and did not

       exhibit nurturing qualities when he testified.


[9]    In its conclusions of law, the court stated that, while a permanent custody order

       was never entered, Father’s position was that the proceeding was one to modify

       custody and that Mother captioned the pleading giving rise to the proceeding as

       a petition to modify custody. The court noted there is precedent for using a

       modification standard when a parent acquiesces to an emergency order that has

       been in place for years, that nonetheless counsel for the parties met the court in

       chambers minutes before the hearing on Mother’s petition and agreed that this

       was an initial permanent custody determination, and that thereafter the court

       announced on the record before any evidence was presented that this was an

       initial custody determination and Father offered no objections. The court

       concluded that Father waived any claim of error that the trial court used an

       incorrect legal standard.


[10]   The court concluded that the GAL’s report contains sound reasoning and was

       issued following a thorough investigation, that it is in the best interest of Child

       that Mother be awarded primary physical custody, and that Mother has

       demonstrated she is the more mature, nurturing, and engaged parent which is

       especially important as Child suffers from an emotional disability. The court

       further concluded that, “[e]ven if it were to apply the stricter modification of

       custody standard . . . , the Court finds that a modification of custody in favor of

       Mother is in the best interest of child, and there is a substantial change in one



       Court of Appeals of Indiana | Memorandum Decision 27A04-1601-JP-204 | November 22, 2016   Page 6 of 16
       (1) or more of the factors considered under Ind. Code § 31-14-13-6,”3 namely,

       that Child has been primarily cared for by Grandparents and that Child has

       developed significant emotional and behavioral issues since the emergency

       custody order was entered. The court ordered that Mother maintain primary

       physical custody, that Father and Mother have joint legal custody, and that

       Father have parenting time pursuant to the Indiana Parenting Time Guidelines

       and pay child support of thirty-four dollars per week.


                                                           Discussion

[11]   The issue is whether the trial court erred in the determining custody of Child.

       The trial court’s findings control as to the issues they cover and a general

       judgment will control as to the issues upon which there are no findings. Yanoff

       v. Muncy, 688 N.E.2d 1259, 1262 (Ind. 1997). When a trial court has made

       findings of fact, we apply the following two-tier standard of review: whether the

       evidence supports the findings of fact, and whether the findings of fact support

       the conclusions thereon. Id. Findings will be set aside if they are clearly

       erroneous. Id. Findings are clearly erroneous only when the record contains no

       facts to support them either directly or by inference. Id. A judgment is clearly

       erroneous if it applies the wrong legal standard to properly found facts. Id. To




       3
           Ind. Code § 31-14-13-6 provides:
                  The court may not modify a child custody order unless:
                           (1) modification is in the best interests of the child; and
                           (2) there is a substantial change in one (1) or more of the factors that the court
                           may consider under section 2 and, if applicable, section 2.5 of this chapter.


       Court of Appeals of Indiana | Memorandum Decision 27A04-1601-JP-204 | November 22, 2016                  Page 7 of 16
       determine that a finding or conclusion is clearly erroneous, our review of the

       evidence must leave us with the firm conviction that a mistake has been made.

       Id. A general judgment entered with findings will be affirmed if it can be

       sustained on any legal theory supported by the evidence. Id.


[12]   Father asserts the trial court erred in failing to apply the standard applicable to a

       request for a modification of custody, that he did not waive this argument, and

       that he made the argument in his proposed findings. In addition, Father

       contends that the evidence does not support the trial court’s findings that

       Grandparents were de facto custodians of Child, that the court did not make

       findings that Grandparents provided the majority of Child’s financial support,

       that “[w]hile [Child’s] time with Grandparents varied throughout the four years

       prior to the Court judgment, the record is filled with testimony that Father

       cared for [Child] regularly,” and that the findings “essentially penalized Father

       for allowing Grandparents to care for his son when at work.” Appellant’s Brief

       at 18. Father also asserts the court did not properly examine all the statutory

       factors in examining the best interest of Child including the wishes of Child,

       Father’s interaction and relationship with Child, Child’s adjustment to his

       home, school, and community, and the mental and physical health of Child if

       forced to relocate.


[13]   Mother maintains the court correctly treated the case as involving an initial

       determination of custody because Father had been previously given temporary

       custody and the court had not entered a permanent custody order, that there

       was agreement of counsel for both parties that this was an initial custody

       Court of Appeals of Indiana | Memorandum Decision 27A04-1601-JP-204 | November 22, 2016   Page 8 of 16
       determination, that Father made no effort during the presentation of evidence to

       claim that the proceeding was a modification hearing, and that Father has

       waived this claim of error. Mother notes that the court’s order stated that

       Grandparents never sought permanent custody and, accordingly, the custody

       dispute is solely between Father and Mother, and she argues that any error by

       the court in stating that Grandparents were de facto custodians is harmless since

       it played no role in the court’s decision. Mother further argues the evidence

       shows Child spent the vast majority of his out of school time with Grandparents

       and that the GAL’s report concluded that it appears Grandparents were the ones

       taking care of most of Child’s primary needs. In addition, Mother argues the

       court properly awarded custody to her, that Father did not present any

       evidence regarding Child’s wishes and Child was six years old at the time of the

       court’s decision, and that the court made a number of statements regarding

       Father’s relationship with Child and Child’s school performance which Father

       does not challenge.


[14]   We observe that, following Father’s September 14, 2011 Petition to Establish

       Paternity and For Emergency Custody, the trial court entered an Agreed Order

       on October 31, 2011, which provided that “[t]he parties agree that [F]ather shall

       have the temporary custody of the parties’ minor son until further order of the

       court.” Appellant’s Appendix at 75. Although Mother’s October 8, 2014

       motion requesting a hearing was captioned a petition to modify custody, the

       trial court clarified at the very beginning of the evidentiary hearing that it was

       making an original custody determination. Specifically, the court stated:


       Court of Appeals of Indiana | Memorandum Decision 27A04-1601-JP-204 | November 22, 2016   Page 9 of 16
               Alright, just a few matters for the record before we actually begin
               with the presentation of evidence. This is an older file. The
               original Petition for Paternity and Custody was filed back in
               2011. The only Order that’s ever been entered was an
               Emergency Order. There’s never been a permanent custody
               determination. So this is not a modification hearing. This is an
               original determination of permanent custody. . . .

       Transcript at 3. Father does not argue or point to the record to show that he

       objected to the trial court’s determination at that time or at any point during the

       evidentiary hearing or argued to the trial court that the standard for custody

       modification should apply because Mother acquiesced to an emergency custody

       order. Accordingly, Father has waived our consideration of whether the

       determination was one of initial custody or change of custody. See Werner v.

       Werner, 946 N.E.2d 1233, 1245-1247 (Ind. Ct. App. 2011) (holding that the

       mother waived her claim of error and observing that a timely objection is a

       prerequisite to appellate review) (citing Trout v. Trout, 638 N.E.2d 1306, 1307-

       1308 (Ind. Ct. App. 1994), trans. denied), trans. denied.4

[15]   A trial court’s custody determination is afforded considerable deference as it is

       the trial court that sees the parties, observes their conduct and demeanor, and

       hears their testimony. Kondamuri v. Kondamuri, 852 N.E.2d 939, 945-946 (Ind.

       Ct. App. 2006). Thus, on review, we will not reweigh the evidence, judge the

       credibility of witnesses or substitute our judgment for that of the trial court. Id.




       4
         To the extent the language of Werner may be unclear regarding waiver under these circumstances, we note
       that a party cannot waive application of the appropriate standard of review.


       Court of Appeals of Indiana | Memorandum Decision 27A04-1601-JP-204 | November 22, 2016        Page 10 of 16
       at 946. We will reverse the trial court’s custody determination only if it is

       clearly against the logic and effect of the facts and circumstances or the

       reasonable inferences drawn therefrom. Id.


[16]   The standard for an initial custody determination is set forth in Ind. Code § 31-

       14-13-2, which provides:

               The court shall determine custody and enter a custody order in
               accordance with the best interests of the child. In determining
               the best interests of the child, there is no presumption favoring
               either parent. The court shall consider all relevant factors,
               including the following:
               (1)      The age and sex of the child.
               (2)      The wishes of the child’s parent or 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 parent or parents;
                        (B)     the child’s sibling; and
                        (C)     any other person who may significantly affect the
                                child’s best interests.
               (5)      The child’s adjustment to the child’s:
                        (A)     home;
                        (B)     school; and
                        (C)     community.
               (6)      The mental and physical health of all individuals involved.
               (7)      Evidence of a pattern of domestic or family violence by
                        either parent.


       Court of Appeals of Indiana | Memorandum Decision 27A04-1601-JP-204 | November 22, 2016   Page 11 of 16
               (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.

[17]   Ind. Code § 31-9-2-35.5 provides:

               “De facto custodian”, for purposes of IC 31-14-13, IC 31-17-2,
               and IC 31-34-4, means a person who has been the primary
               caregiver for, and financial support of, a child who has resided
               with the person for at least: (1) six (6) months if the child is less
               than three (3) years of age; or (2) one (1) year if the child is at
               least three (3) years of age.
               Any period after a child custody proceeding has been
               commenced may not be included in determining whether the
               child has resided with the person for the required minimum
               period. . . .

[18]   Ind. Code § 31-14-13-2.5(b) provides:

               In addition to the factors listed in section 2 of this chapter, the
               court shall consider the following factors in determining custody:
               (1)      The wishes of the child’s de facto custodian.
               (2)      The extent to which the child has been cared for, nurtured,
                        and supported by the de facto custodian.
               (3)      The intent of the child’s parent in placing the child with
                        the de facto custodian.
               (4)      The circumstances under which the child was allowed to
                        remain in the custody of the de facto custodian, including
                        whether the child was placed with the de facto custodian
                        to allow the parent now seeking custody to:
                        (A)     seek employment;
                        (B)     work; or


       Court of Appeals of Indiana | Memorandum Decision 27A04-1601-JP-204 | November 22, 2016   Page 12 of 16
                        (C)     attend school.

[19]   We observe that the trial court entered findings that Grandparents have never

       sought permanent custody of Child and that, accordingly, the custody dispute is

       solely between Father and Mother. Ind. Code § 31-14-13-2 requires a trial

       court, in making a custody determination in accordance with the best interests of

       the child, to consider all relevant factors including evidence the child has

       been cared for by a de facto custodian under subsection (8) and also evidence of

       the other factors listed in subsections (1) through (7). Even if Grandparents were

       not de facto custodians, the court was required to consider the interaction

       and interrelationship of Child with his “parents . . . and . . . any other person

       who may significantly affect [Child’s] best interests” under Ind. Code § 31-14-

       13-2(4). The trial court’s findings reflect that, in determining whether to award

       primary physical custody to Mother or Father, the court considered the extent to

       which Child was cared for, nurtured, and supported by Grandparents and the

       circumstances under which Child stayed with Grandparents. Further, the

       evidence before the court included testimony regarding Father’s employment

       and work schedule since he and Mother separated, the extent to which Father

       and Child lived with Grandparents, the extent of the involvement of Father and

       Grandparents in making decisions related to the care of Child, and the GAL’s

       report regarding the involvement of Father and Grandparents in Child’s life,

       including the GAL’s conclusions that it appeared Grandparents were the ones

       taking care of most of Child’s primary needs. The court was troubled by the fact

       Grandfather routinely strips Child and photographs him after Mother


       Court of Appeals of Indiana | Memorandum Decision 27A04-1601-JP-204 | November 22, 2016   Page 13 of 16
       exercises parenting time, that Grandfather has taken nearly one hundred

       photographs of Child during this ritual, that despite making several reports no

       charges have ever been filed against Mother, and that while Father knows about

       the ritual and claims to disagree with it, he has done nothing to stop it.


[20]   The trial court’s findings and conclusions reflect that it considered the other

       factors set forth in Ind. Code § 31-14-13-2 as well. The order demonstrates the

       court considered evidence of Child’s abuse, the interaction of Child and

       Mother, Father, and Grandfather, Child’s adjustment in school, and the age,

       mental health, and development of Child and the maturity of Mother and

       Father. In particular, the court issued findings regarding the abuse of Child in

       August 2011 and the subsequent investigation; Mother’s participation in

       parenting time with Child and how well the parenting time had gone; the

       previous conduct of Father and Grandfather during Mother’s parenting time;

       Mother’s employment and the fact she is married to a responsible person who

       has a good job and Father’s education, living arrangements, and numerous jobs

       since October 2011. The order notes Child’s problems since starting school

       including anger control, anxiety, difficulty starting and finishing tasks, difficulty

       following instructions, and that he has urinated on other students; Child’s

       evaluation by a school psychologist and qualification for special education

       services, his individual education plan, his relative improvement since the plan

       was implemented, and Father’s lack of interest in the psychologist’s report or

       the education plan; and the behavior of Father and Grandfather in not telling

       Mother where Child attended school and that she was not permitted to contact


       Court of Appeals of Indiana | Memorandum Decision 27A04-1601-JP-204 | November 22, 2016   Page 14 of 16
       Child’s school. The court stated it was very troubled by the fact Father only

       skimmed the school psychologist’s report and did not appear particularly

       interested in the report’s findings and that Father did not know Child’s

       diagnosis and referred to it as “a big word.” Appellant’s Appendix at 13. The

       court also found that Child began receiving counseling in late September 2015

       and stated that it was difficult to understand why Father waited so long to seek

       counseling for Child.


[21]   With respect to Father’s argument that the court did not properly address the

       opinions of Child’s teacher and school psychologist, the record shows that

       Child’s teacher testified that she witnessed Child’s behaviors of name calling,

       pulling down his pants in public, urinating on the floor and on other students,

       hitting himself, stabbing himself with a pencil, and hitting, kicking, and pushing

       other students, and that Child’s behavior did not improve “a lot” throughout the

       school year but “a little to the positive towards the end of the year.”

       Transcript at 228. The court also heard the testimony of the school

       psychologist regarding her evaluation of Child, that Child’s individual

       education plan would follow Child to whichever school system Child enrolls,

       and that she could not speak to the level of support Child might receive at

       another school.


[22]   With respect to the wishes of Child, Ind. Code § 31-14-13-2 provides that a

       court shall give more consideration to the child’s wishes if the child is at least

       fourteen years of age. The court found that Child was born on January 12,

       2009, and Father does not point to the record to show that he presented

       Court of Appeals of Indiana | Memorandum Decision 27A04-1601-JP-204 | November 22, 2016   Page 15 of 16
       evidence regarding Child’s wishes which the court failed to consider. The

       GAL’s report indicated that she did not believe the age and sex of the child

       favored an award of custody to either parent and that Child does not have the

       emotional capacity to make a decision of this magnitude and is in no way able

       to weigh in on this type of a decision. The court heard the testimony of Father,

       Mother, Grandfather, Child’s teacher and school psychologist, and Mother’s

       current husband, and counsel for the parties thoroughly examined each of the

       witnesses. In light of the findings and conclusions of the court and the

       testimony presented at the evidentiary hearing, we cannot say that the trial

       court failed to consider Father’s interaction with Child, Child’s adjustment to

       his home, school, and community, the mental and physical health of Child, or

       the opinions of Child’s teacher or school psychologist.


[23]   Based upon the record and the trial court’s order, we conclude that the trial

       court did not err in determining that Mother shall have primary physical

       custody of Child.


                                                    Conclusion

[24]   For the foregoing reasons, we affirm the trial court’s custody determination.

[25]   Affirmed.


       Robb, J., and Mathias, J., concur.




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