                                                                  Feb 19 2015, 9:31 am




ATTORNEY FOR APPELLANT                                     ATTORNEY FOR APPELLEE
Carlos I. Carrillo                                         Gregg S. Theobald
Lafayette, Indiana                                         Lafayette, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

In re the Paternity of Snyder,                             February 19, 2015
                                                           Court of Appeals Cause No.
M.S.,                                                      79A02-1407-JP-497
Appellant-Petitioner,                                      Appeal from the Tippecanoe Circuit
                                                           Court; The Honorable Donald L.
        v.                                                 Daniel, Judge;
                                                           79C01-1304-JP-20
D.A.,
Appellee-Respondent.




May, Judge.




Court of Appeals of Indiana | Opinion 79A02-1407-JP-497 | February 19, 2015               Page 1 of 8
[1]   M.S. (Father) appeals the order denying his request to modify parenting time

      with his daughter, M.A. We affirm in part and reverse in part.


                                   Facts and Procedural History
[2]   Father and D.A. (Mother) are the parents of M.A., born May 6, 2008. Mother

      and Father lived together until M.A. was approximately six months old, at

      which time Father moved to Texas, where he has remained during the relevant

      proceedings. On March 13, 2012, Mother petitioned for and was granted a

      protective order against Father. On April 3, 2013, Father filed a petition to

      establish paternity and custody.


[3]   On September 12, 2013, after several filings and hearings on the matter, the trial

      court entered an order establishing child support, denying Father’s request to

      change M.A.’s name, and allowing Mother and Father to claim M.A. on their

      taxes in alternate years. The trial court also approved the parties’ agreed order

      regarding Father’s visitation with M.A. The order provided visitation would be

      supervised by therapist Theresa Slayton and it modified the protective order to

      permit the visitation.


[4]   On March 10, 2014, Mother filed a petition to extend the protective order,

      which was later dismissed at her request. On June 30, 2014, the trial court held

      a hearing regarding all pending matters in the paternity action, during which

      Father made argument to extend his parenting time, change therapists, allow

      regular communication with M.A. via Skype, and allow Father to tell M.A. he

      is her father. The same day, the trial court entered an order maintaining the

      Court of Appeals of Indiana | Opinion 79A02-1407-JP-497 | February 19, 2015   Page 2 of 8
      status quo of therapeutic visitation for one hour with Slayton, allowing Father

      weekly communication with M.A. via Skype at Slayton’s office, and denying

      Father’s requests to change therapists and tell M.A. he is her father.


                                      Discussion and Decision
[5]   The trial court entered findings of fact and conclusions of law. Therefore,

              we must determine whether the evidence supports the findings and
              whether the findings support the judgment. The judgment will be
              reversed only when clearly erroneous. To determine whether the
              findings or judgment are clearly erroneous, we consider only the
              evidence favorable to the judgment and all reasonable inferences
              flowing therefrom.


      Speaker v. Speaker, 759 N.E.2d 1174, 1179 (Ind. Ct. App. 2001) (citations and

      internal quotation marks omitted). We will not reweigh the evidence or

      reassess the credibility of the witnesses before the court. Speed v. Old Fort Supply

      Co., Inc., 737 N.E.2d 1217, 1219 (Ind. Ct. App. 2000). Rather, we will affirm if

      there is sufficient evidence of probative value to support the decision, viewing

      the evidence most favorable to the judgment and the reasonable inferences

      drawn therefrom. Id.


[6]   Because the court’s entry of findings was sua sponte, we review any issue on

      which the court has not made findings under a general judgment standard.

      Myers v. Leedy, 915 N.E.2d 133, 140 (Ind. 2009). We affirm a general judgment

      on any legal theory supported by the evidence. Id.




      Court of Appeals of Indiana | Opinion 79A02-1407-JP-497 | February 19, 2015   Page 3 of 8
                                 1. Modification of Existing Restrictions

[7]   “The court may modify an order granting or denying parenting time rights

      whenever modification would serve the best interests of the child.” Ind. Code §

      31-17-4-2. In determining if modification is appropriate, the trial court

      considers the “mental and physical health of all individuals involved.” Ind.

      Code § 31-17-2-8.


[8]   We review1 the trial court’s order as to these proposed modifications as follows:

               We review custody modifications for abuse of discretion, with a
               preference for granting latitude and deference to our trial judges in
               family law matters. In the initial custody determination, both parents
               are presumed equally entitled to custody, but a petitioner seeking
               subsequent modification bears the burden of demonstrating that the
               existing custody should be altered. When reviewing a trial court’s
               decision modifying custody, we may not reweigh the evidence or judge
               the credibility of the witnesses. Instead, we consider only the evidence
               most favorable to the judgment and any reasonable inferences
               therefrom.


      Julie C. v. Andrew C., 924 N.E.2d 1249, 1256 (Ind. Ct. App. 2010) (citations

      omitted).




      1
        Father asserts our standard of review should be based on the court’s placement of restrictions on his
      parenting time, which would impose on Mother a burden to prove Father’s parenting time should be
      restricted. We disagree. While a party requesting a restriction on parenting time initially has the burden to
      prove endangerment or impairment as required by statute, In re Paternity of P.B., 932 N.E.2d 712, 719 (Ind.
      Ct. App 2010), Father agreed to some restrictions as part of the Settlement Agreement. His petition to
      remove the restrictions is a request to modify that original custody agreement. Thus, we apply the standard
      of review for modification to the trial court’s order as to these restrictions.



      Court of Appeals of Indiana | Opinion 79A02-1407-JP-497 | February 19, 2015                        Page 4 of 8
[9]    The trial court ordered:

               1.       [Father’s] parenting time shall continue to be supervised by a
                        therapist.


               2.       [Father] and [M.A.] shall have the opportunity to communicate
                        by Skype once each week for up to fifteen minutes.


               3.       Said Skype visits will be supervised by Theresa Slayton or a
                        member of her staff.


               4.       Each party shall pay one half of the cost of the Skype calls and
                        the supervision fee.


                                                       *****


               7.       [Father’s] request that the Court order a different therapist is
                        denied.


       (App. at 41-42.)


[10]   At the time of the order in the instant case, Father had attended six therapeutic

       visitation sessions with M.A. since the September 12, 2013, order. The

       therapist, Slayton, testified visits were going well but expressed concern

       regarding the consistency of Father’s visits. Father had seen M.A. only five

       hours in nine months, missed one visit, and indicated he might take a job

       overseas, which would effectively terminate the therapeutic visitation with

       M.A. for an extended period of time.


[11]   Father agreed to the initial restrictions on his parenting time and did not appeal

       the 2013 order continuing those restrictions. He has not demonstrated the
       Court of Appeals of Indiana | Opinion 79A02-1407-JP-497 | February 19, 2015         Page 5 of 8
       findings were unsupported by evidence and he has not demonstrated there was

       a change in circumstances to warrant a change in parenting time beyond the

       modification that now permits Father to talk to M.S. via Skype one time each

       week. His argument is an invitation for us to reweigh the evidence, which we

       cannot do. See Speed, 737 N.E.2d at 1219 (court on appeal cannot reweigh the

       evidence supporting the trial court’s findings).


                                         2. Order of New Restriction

[12]   However, we find error regarding the trial court’s denial of Father’s request to

       tell M.A. he is her father. In parenting time disputes, our collective goal in

       Indiana is to seek an environment in which a child can have a “‘well-founded

       relationship with each parent.’” Hatmaker v. Hatmaker, 998 N.E.2d 758, 761

       (Ind. Ct. App. 2013) (quoting Appolon v. Faught, 796 N.E.2d 297, 300 (Ind. Ct.

       App. 2003)). This goal recognizes “[t]he right of non-custodial parents to visit

       with their children [as] a ‘sacred and precious privilege.’” Id. Nonetheless,

       parenting time in paternity cases can be restricted under Indiana Code § 31-14-

       4-1(a), if the court finds that “parenting time might: (1) endanger the child’s

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

       development.” (emphasis added). We review these decisions for an abuse of

       discretion. Id. “A trial court abuses its discretion when its decision is clearly

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

       the court has misinterpreted the law.” Id.


[13]   Father’s parental status is determined by statute; that is, once paternity is

       established or acknowledged, Father is M.A.’s birth parent. Ind. Code § 31-9-2-
       Court of Appeals of Indiana | Opinion 79A02-1407-JP-497 | February 19, 2015   Page 6 of 8
       10. Once paternity has been established, the named father receives rights and

       responsibilities, including becoming subject to a child-support order. Ind. Code

       § 16-37-2-2.1. Indeed, parental rights and responsibilities are so important that

       once paternity is established it may not be disestablished, unless fraud, duress,

       or a material mistake of fact is shown to have existed at the time the paternity

       affidavit was executed. In re Paternity of T.M., 953 N.E.2d 96, 98 (Ind. Ct. App.

       2011), trans. denied; See also Ind. Code § 16-37-2-2.1(l).


[14]   In this case, the record reveals that Father’s paternity was established, and a

       support order was entered. In addition, Father’s parenting time was initially

       restricted because of an allegation of domestic violence against Mother. Since

       the trial court’s initial order, Father has exercised infrequent visitation that is

       supervised by Slayton. Slayton believes that Father has not “earned the title” of

       “dad[]”; that this revelation would result in six-year-old M.A. “spending more

       time trying to figure out who everybody is at her age[]”; and Father’s desire to

       inform his daughter of his status should be used as leverage to move him

       toward more frequent visits. (Tr. at 8.) While this goal is laudable, it is not a

       legally sufficient basis for denying a Father the ability to proclaim his status to

       his child.


[15]   There is no evidence in the record suggesting how M.A.’s physical health or

       emotional development would be impaired by telling M.A. that Father is her

       biological father. See Ind. Code § 31-14-14-1(a); Farrell v. Littell, 790 N.E.2d 612

       (Ind. Ct. App. 2003) (statute requires specific finding of physical endangerment

       or emotional impairment prior to imposing restriction). As such a finding is

       Court of Appeals of Indiana | Opinion 79A02-1407-JP-497 | February 19, 2015   Page 7 of 8
       required by statute, the trial court erred when it denied Father’s request to tell

       M.A. he is her father, and we accordingly reverse that portion of the trial

       court’s decision.


[16]   Affirmed in part, reversed in part.


       Barnes, J., and Pyle, J., concur.




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