Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited                              FILED
                                                            Jan 29 2013, 9:31 am
before any court except for the purpose
of establishing the defense of res
judicata, collateral estoppel, or the law                          CLERK
                                                                 of the supreme court,
of the case.                                                     court of appeals and
                                                                        tax court




ATTORNEYS FOR APPELLANT:                        ATTORNEYS FOR APPELLEE:

AARON M. FREEMAN                                MARGARET LOIS JANSEN
TYLER D. HELMOND                                Indianapolis, Indiana
Voyles Zahn & Paul
Indianapolis, Indiana                           I. MARSHALL PINKUS
                                                Pinkus Pinkus
                                                Indianapolis, Indiana

                              IN THE
                    COURT OF APPEALS OF INDIANA

IN RE: THE PATERNITY OF K.G.,                   )
                                                )
J.G.,                                           )
                                                )
        Appellant-Intervenor,                   )
                                                )
and,                                            )
                                                )
S.S.,                                           ) No. 49A05-1206-JP-307
                                                )
        Appellee-Petitioner,                    )
                                                )
and,                                            )
                                                )
A.S.,                                           )
                                                )
        Respondent Below.                       )


                      APPEAL FROM THE MARION CIRCUIT COURT
                           The Honorable Louis Rosenberg, Judge
                      The Honorable Sheryl Lynch, Master Commissioner
                               Cause No. 49C01-0204-JP-929
                                        January 29, 2013

                MEMORANDUM DECISION – NOT FOR PUBLICATION

BARNES, Judge
                                        Case Summary

        J.G. (“Grandfather”) appeals the trial court’s order awarding S.S. (“Mother”)

custody of her daughter, K.G. We affirm.

                                              Issue

        Grandfather raises one issue, which we restate as whether the trial court properly

granted Mother’s motion to modify custody.

                                              Facts

        K.G. was born on March 22, 2002.1 In September 2002, Mother was arrested for

burglary. While she was incarcerated, Mother signed a document giving Grandfather

custody of K.G. In October 2002, while Mother was still in jail, the trial court awarded

Grandfather physical custody of K.G., and Mother was ordered to pay child support and

was awarded visitation.

        Although the burglary charges against Mother were eventually dismissed and she

was released from jail in November 2002, Mother’s involvement with K.G. was sporadic

and, in 2004 and 2005, she was convicted of additional alcohol and property-related

offenses resulting in intermittent incarceration. Mother was last incarcerated in October

2007.


1
  K.G.’s father did not participate in the custody modification proceedings and consented to Mother
obtaining custody of K.G.


                                                2
       In 2005, Mother began asking Grandfather for custody of K.G., and Grandfather

denied the requests. In June 2010, Mother filed a petition to modify custody. Until that

point, Grandfather had cared for, nurtured, and financially and emotionally supported

K.G. After Mother filed her motion, she began having regular visitation with K.G. At

the time of the Spring 2012 hearing, Mother had matured, was married, had purchased a

home with her husband, and had had another child with her husband. Following the

hearing, the trial court granted Mother’s motion to modify custody, awarding Mother

custody of K.G. and granting Grandfather visitation with K.G. Grandfather now appeals.

                                        Analysis

       Grandfather argues that the trial court abused its discretion when it modified

custody. It is well-settled that custody modifications are reviewed for abuse of discretion

with a preference for granting latitude and deference to our trial courts in family law

matters. Id. More specifically, our supreme court has made clear:

              Appellate deference to the determinations of our trial court
              judges, especially in domestic relations matters, is warranted
              because of their unique, direct interactions with the parties
              face-to-face, often over an extended period of time. Thus
              enabled to assess credibility and character through both
              factual testimony and intuitive discernment, our trial judges
              are in a superior position to ascertain information and apply
              common sense, particularly in the determination of the best
              interests of the involved children.

Best v. Best, 941 N.E.2d 499, 502 (Ind. 2011).

       Here, the trial court entered special findings and conclusions thereon pursuant to

Indiana Trial Rule 52(A). “In reviewing findings made pursuant to Rule 52, we first

determine whether the evidence supports the findings and then whether findings support

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the judgment.” K.I. ex rel. J.I. v. J.H., 903 N.E.2d 453, 457 (Ind. 2009). “On appeal we

‘shall not set aside the findings or judgment unless clearly erroneous, and due regard

shall be given to the opportunity of the trial court to judge the credibility of the

witnesses.’” Id. (quoting Ind. Trial Rule 52(A)). “A judgment is clearly erroneous when

there is no evidence supporting the findings or the findings fail to support the judgment.”

Id. “A judgment is also clearly erroneous when the trial court applies the wrong legal

standard to properly found facts.” Id.

       In K.I., our supreme court set out the legal standard for a parent seeking to modify

custody from a third party. The court explained that, as an initial matter, “a party seeking

a change of custody must persuade the trial court that ‘(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.’” Id. at 460 (quoting Ind. Code § 31-14-13-6). According to K.I., the best

interests requirement is met from the outset because the parent comes to the table with a

strong presumption that a child’s interests are best served by placement with the natural

parent. Id. As for the substantial change in one or more of the statutory factors, a trial

court may consider the interaction or interrelationship of the child with the child’s parent.

See I.C. § 31-14-13-2(4)(A). Thus, although in a technical sense a parent seeking to

modify custody has the burden of establishing the statutory requirements for

modification, “as a practical matter this is no burden at all. More precisely, the burden is

minimal.” Id. Grandfather agrees that Mother met this burden.



                                             4
        “Once this minimal burden is met, the third party must prove by clear and

convincing evidence ‘that the child’s best interests are substantially and significantly

served by placement with another person.’” Id. at 460-61 (quoting In re Guardianship of

B.H., 770 N.E.2d at 283, 287 (Ind. 2002)). “If the third party carries this burden, then

custody of the child remains in the third party. Otherwise, custody must be modified in

favor of the child’s natural parent.” Id. at 461.

        Grandfather argues that the trial court wrongly held that K.G.’s best interests were

not substantially and significantly served by continued placement in his custody. In

attacking the trial court’s fifteen-page order, Grandfather argues that some of the trial

court’s findings were not supported by the evidence and that the trial court ignored

evidence that K.G.’s best interests were substantially and significantly served by

continuing to live with him.

                              I. Evidence Supporting the Findings

        Grandfather asserts that the evidence does not support the trial court’s findings

that Mother’s intent in placing K.G. with Grandfather was temporary due to her

incarceration, that Grandfather resisted giving Mother custody without court

intervention,2 that Mother was intimidated by Grandfather, and that Mother did not



2
   In many of his arguments, Grandfather takes a rather myopic view of the findings. When read as
whole, the trial court’s findings paint a much more favorable picture of Grandfather than Grandfather’s
brief suggests. For example, Grandfather argues, “the trial court’s characterization of grandfather’s
‘refusal’ to return the child to the mother’s custody without court intervention is curious and equally
unsupportable.” Appellant’s Br. p. 10. However, in Finding 7, the trial court stated, “Mother was not
financially able to get an attorney to go to Court to get custody of her child until 2010, given
[Grandfather’s] resistance to just give Mother custody of her child without Court intervention.” App. p.
21. Further, in Finding 31, the trial court stated, “[Grandfather] as the De Facto custodian of the child
                                                   5
acquiesce to Grandfather’s continued custody over all these years. To the contrary,

Mother’s testimony supports all of these findings. See, e.g., Tr. pp. 46-50, 52, 73, 97,

236. To the extent Grandfather directs us to other evidence, he is asking us to reweigh

the evidence and assess witness credibility, which we cannot do. It was within the trial

court’s discretion to determine that, although Mother initially acquiesced to Grandfather

obtaining custody of K.G., she did not acquiesce during the entire time K.G. was in

Grandfather’s custody.

        Grandfather next asserts that certain findings about Mother were not supported by

the evidence, namely that her legal problems were over, that her interaction and

interrelationship with K.G. were good, and that K.G. would have adequate living

arrangements with Mother. At the hearing, however, Mother was more than candid about

her criminal history and testified that she was last incarcerated in 2007 and has had no

further criminal history. See Tr. p. 72. There was evidence that Mother is a “great mom”

and that she is “nurturing” and “patient” with K.G. Id. pp. 297, 328. Even Grandfather

agreed that K.G. loved Mother.           See id. at 468.       Finally, there was testimony and

photographic evidence about Mother’s house, and Mother’s employment and household

income were discussed during the hearing.

        Although Grandfather directs us to evidence of Mother’s shortcomings, the trial

court was aware of this evidence and even acknowledged some of it in its order.

Grandfather has not established that the evidence does not support these findings.



was entitled to not voluntarily give the child back to Mother without Court intervention. The Court does
not hold that against [Grandfather].” Id. at 25.
                                                   6
       Finally Grandfather challenges certain findings related to his testimony about

appropriate visitation, his and his wife’s ages and physical conditions, his knowledge of

K.G.’s friends’ names, and the hostility between Grandfather and Mother. Grandfather’s

arguments regarding his meaning when he used the word “appropriate” to describe

visitation and his wife’s testimony about wanting to be grandparent to K.G. are based on

what he characterizes as “the trial court’s complete disregard for context.” Appellant’s

Br. p. 15. The hearing was conducted over the course of three days, and during that time

the trial court had the opportunity to observe the witnesses, assess their demeanor, and

gauge their credibility through both factual testimony and intuitive discernment. See

Best, 941 N.E.2d at 502. Thus, it was within the trial court’s discretion to determine the

context in which the various statements were made and weigh them accordingly.

       Grandfather takes issue with the trial court’s concern for his health and ability to

meet the needs of K.G going forward and claims that these findings were not supported

by the evidence. To the contrary, Grandfather testified that K.G. is “very active,” that she

has been diagnosed with ADHD, and that, contrary to the recommendations of a

psychological evaluation, he did not enroll her in any extracurricular activities other than

bowling with him. Tr. p. 468. Further, the trial court viewed Grandfather’s demeanor in

court and was able to assess his physical ability to keep up with an active ten-year-old

and compare it to Mother’s ability. Grandfather has not shown that there is no evidence

to support these findings.




                                             7
       In his arguments regarding knowing the names of K.G.’s friends and allowing her

to attend sleepovers, Grandfather asks us to credit certain testimony over other testimony,

which we cannot do. This argument is unavailing.

       Regarding the hostility between Mother and Grandfather, Grandfather claims there

is no evidence that K.G. did not want to upset Mother and Grandfather. To the contrary,

Mother testified that K.G. does not want to upset either one of them, that she is torn, that

she hears bad things, and that it makes her upset. See Tr. p. 130. The evidence supports

this finding.

       Grandfather also asserts that he did not primarily cause the hostility and that the

evidence does not support the trial court’s concern that the continued hostility will

damage the relationship with Mother and K.G. if Grandfather continues to have custody.

Contrary to Grandfather’s assertion, the record supports this finding. Throughout the

record, there is evidence of Grandfather’s reluctance to allow visitation and his

inflexibility regarding visitation.   There is also evidence that Grandfather has made

comments to K.G. regarding Mother that Grandfather admitted were not appropriate and

that he has belittled Mother in front of K.G. See Tr. pp. 478, 479, 496. This evidence

supports the trial court’s finding that continued custody with Grandfather would

negatively impact the relationship between Mother and K.G.

                                      II. Best Interests

       Grandfather also asserts that resounding evidence showed that K.G.’s best

interests were substantially and significantly served by continued placement with him. In

making this argument, Grandfather again focuses on evidence most favorable to his

                                              8
position, including a January 2011 custody evaluation. Based on a complete reading of

the trial court’s order, however, it is clear that the trial court carefully considered the

evidence, including the custody evaluation, and applied the correct legal standards when

it concluded that modification of custody was in K.G.’s best interests. We may not

second guess the trial court’s decision because “our trial judges are in a superior position

to ascertain information and apply common sense, particularly in the determination of the

best interests of the involved children.” Best, 941 N.E.2d at 502.

                                       Conclusion

       Grandfather has not established that the trial court’s findings are not supported by

the evidence or that the trial court clearly erred when it concluded it was not convinced

that placement with Grandfather represented a substantial and significant advantage to

K.G. We affirm.

       Affirmed.

BAKER, J., and RILEY, J., concur.




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