MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        FILED
regarded as precedent or cited before any                               Dec 04 2017, 7:01 am
court except for the purpose of establishing
                                                                             CLERK
the defense of res judicata, collateral                                  Indiana Supreme Court
                                                                            Court of Appeals
estoppel, or the law of the case.                                             and Tax Court




ATTORNEY FOR APPELLANT
R. Patrick Magrath
Alcorn Sage Schwartz & Magrath, LLP
Madison, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

In re the Paternity of Titus A.                          December 4, 2017
Gambrel                                                  Court of Appeals Case No.
                                                         36A01-1706-JP-1475
Willa Royal,                                             Appeal from the Jackson Superior
                                                         Court
Appellant-Respondent,
                                                         The Honorable Bruce Markel III,
        v.                                               Special Judge
                                                         Trial Court Cause No.
Luke Gambrel,                                            36D02-1503-JP-23

Appellee-Petitioner



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 36A01-1706-JP-1475 | December 4, 2017          Page 1 of 8
                                             Case Summary
[1]   Willa Royal (“Mother”) appeals the trial court’s order finding her in contempt

      for denying Luke Gambrel (“Father”) his scheduled parenting time with the

      couple’s three-year-old son, Titus A. Gambrel (“Child”). She also challenges

      the trial court’s denial of her motion to modify parenting time to limit Father’s

      parenting time to supervised visits only. Finding that Mother has failed to

      establish prima facie error, we affirm.


                                 Facts and Procedural History
[2]   In February 2014, Child was born to Mother and Father out of wedlock. He

      was diagnosed with autism and is essentially nonverbal, communicating largely

      through sign language. He is involved in therapy five days per week, and his

      therapist considers him to be about six months behind the cognitive average.

      At some point, Mother and Father ended their romantic involvement, and their

      relationship became strained. In 2015, Father sought to establish paternity, and

      the trial court issued an order adjudicating Father as Child’s biological father.

      In August 2016, the court issued an order awarding joint legal custody to

      Father and Mother, with Mother having physical custody and Father paying

      child support. The court granted Father unsupervised parenting time in

      accordance with the Indiana Parenting Time Guidelines, which essentially

      amounted to ten-hour visits on Saturdays and Sundays of alternating weekends,

      with no overnights. Mother filed a petition for clarification of the parenting

      time order, which the trial court dismissed on Father’s motion.



      Court of Appeals of Indiana | Memorandum Decision 36A01-1706-JP-1475 | December 4, 2017   Page 2 of 8
[3]   On December 17, 2016, Child spent all day at Father’s house, which Father

      shares with his father and brother. Shortly before Mother’s evening pickup

      time, Father changed Child’s diaper and did not notice anything unusual.

      Around 7:00 p.m., Mother and her boyfriend (“Boyfriend”) dropped off Child

      at the home of Boyfriend’s mother (“Meme”). Mother did not change Child’s

      diaper before dropping him off. Meme’s other son Noah bathed Child that

      evening, and when Mother picked up Child around 1:00 a.m., Meme told her

      that Noah had noticed some bruises on Child. When Mother took Child home

      and changed his diaper, she saw small bruises on his leg and up one side of his

      body. She took photos of the bruises. The next morning, Mother and Father

      communicated by text concerning the inclement weather, which forced the

      cancellation of Father’s regular parenting time. Mother did not ask Father

      about the bruises, and Father later testified that he did not know about Child’s

      bruises until his sister-in-law informed him of it several days later.


[4]   Over the next couple days, Child’s bruises became more pronounced and

      discolored, and Mother notified the Department of Child Services (“DCS”).

      Mother told the assessing family case manager (“FCM”) that she believed that

      Father had physically abused Child. A medical assessment indicated that

      Child’s bruises were consistent with a finding of abuse. On December 22, 2016,

      Mother signed a DCS community services safety plan, which provided that

      Father would be limited to supervised visitation with Child, with Mother as

      monitor. Petitioner’s Ex. 1.




      Court of Appeals of Indiana | Memorandum Decision 36A01-1706-JP-1475 | December 4, 2017   Page 3 of 8
[5]   Father learned about the DCS safety plan a week later, when Mother texted

      him and included a screenshot of the document. In the ensuing weeks, Mother

      and Father traded numerous texts, most of which concerned Father asking to

      see Child, Mother telling Father that he could no longer see Child except at her

      house or at a public place under her supervision, and Father refusing Mother’s

      supervision and reminding her that court orders overrule DCS safety plans.


[6]   On February 16, 2017, Father filed a petition for rule to show cause why

      Mother should not be held in contempt for defying the trial court’s 2016

      parenting time order. On March 14, 2017, Mother filed a petition to modify

      Father’s parenting time to supervised visits only, per the DCS safety plan. At a

      combined hearing on both motions, FCM Debra Satterfield testified that

      according to her notes, no one from DCS contacted Father before they had

      Mother sign the safety plan. She noted that Father had denied the abuse

      allegations in an interview with police and that DCS had no witness statements

      or other information showing that Father was the source of Child’s bruises. She

      also reported that Mother had a DCS substantiation in 2014 for neglect of

      Child.1 Child’s therapist testified as to his special need for a consistent routine,

      and Mother and Father both testified on their own behalf. The trial court took

      matters under advisement and issued an order finding Mother in contempt and

      denying her petition for parenting time modification.



      1
         Mother testified that this substantiation was not for her but for her mother. Nevertheless, she admitted that
      she allowed her mother to pick up and drop off Child, even over Father’s objections. Tr. Vol. 2 at 35. See
      also Petitioner’s Ex. 4 (text message from Father objecting to driving arrangements for Child).

      Court of Appeals of Indiana | Memorandum Decision 36A01-1706-JP-1475 | December 4, 2017             Page 4 of 8
[7]    Mother now appeals. Additional facts will be provided as necessary.


                                      Discussion and Decision
[8]    Mother contends that the trial court abused its discretion in finding her in

       contempt and in denying her petition to modify parenting time. Because her

       arguments involve the same standard of review and underlying facts, we

       address them together. We review the trial court’s ruling on both a contempt

       petition and a parenting time modification petition using an abuse of discretion

       standard. See Van Wieren v. Van Wieren, 858 N.E.2d 216, 223 (Ind. Ct. App.

       2006) (contempt finding); Meisberger v. Bishop, 15 N.E.3d 653, 656 (Ind. Ct.

       App. 2014) (parenting time decision).


[9]    As a preliminary matter, we observe that Father has not filed an appellee’s

       brief. Where an appellee fails to file a brief, we do not undertake to develop

       arguments on his behalf; rather, we may reverse upon a prima facie showing of

       reversible error. Morton v. Ivacic, 898 N.E.2d 1196, 1199 (Ind. 2008). Prima

       facie error is error “at first sight, on first appearance, or on the face [of] it.” Id.


[10]   Father filed a petition for rule to show cause why Mother should not be held in

       indirect contempt of court for failing to adhere to the 2016 parenting time order.

       Indirect contempt of court “is the willful disobedience of any lawfully entered

       court order of which the offender has notice.” In re Paternity of M.F., 956

       N.E.2d 1157, 1163 (Ind. Ct. App. 2011) (quoting City of Gary v. Major, 822

       N.E.2d 165, 169 (Ind. 2005)). Thereafter, Mother filed a petition seeking to

       modify Father’s parenting time to supervised only. “A court may not restrict

       Court of Appeals of Indiana | Memorandum Decision 36A01-1706-JP-1475 | December 4, 2017   Page 5 of 8
       parenting time unless that parenting time ‘would’ endanger the child’s physical

       health or emotional development.” Hatmaker v. Hatmaker, 998 N.E.2d 758, 762

       (Ind. Ct. App. 2013) (quoting D.B. v. M.B.V., 913 N.E.2d 1271, 1274 (Ind. Ct.

       App. 2009), and Ind. Code § 31-17-4-1(a)). A party seeking to restrict a parent’s

       visitation rights has the burden of proving by a preponderance of evidence that

       a restriction is justified. Id. “[A]n order for supervision constitutes such a

       restriction.” Id.


[11]   Here, Mother predicated her petition to modify parenting time on Father’s

       alleged abuse of Child.2 Father steadfastly denied that he abused Child or did

       anything to cause Child’s bruises. FCM Satterfield testified that DCS had not

       interviewed Father but that Father had given an interview to local law

       enforcement in which he denied the abuse allegations. She also testified that

       DCS had not taken any witness statements that pointed to Father as the cause

       of Child’s bruises. Tr. Vol. 2 at 15. She admitted that DCS did not interview

       Meme or Noah, who had given Child his bath a few hours before Mother

       observed the bruises. Id. at 16. Mother admitted both to DCS and during the

       hearing that she had never observed Father being aggressive with Child and that

       she did not know whether Father had been the one who inflicted the bruises.

       Id. at 50. She said she knew that the bruising had happened “at [Father’s]

       residence.” Id. at 51. When asked how she could be so certain that Meme or


       2
         Mother’s brief includes a litany of Father’s alleged shortcomings as a parent, i.e., having a child support
       arrearage, not caring about Child’s therapy, and not having a toddler bed for Child at his house. However,
       these matters do not amount to a showing of endangerment sufficient to support a restriction in parenting
       time.

       Court of Appeals of Indiana | Memorandum Decision 36A01-1706-JP-1475 | December 4, 2017             Page 6 of 8
       Noah had not caused Child’s injuries during the five hours that they watched

       him, Mother said, “Your [sic] right I didn’t see it. It is true speculation, but I

       know these people like the back of my hand.” Id. at 50. Simply put, DCS

       based its safety plan on Mother’s assumption that Father had abused Child.


[12]   In examining whether Mother willfully defied a court order, we observe that

       she was aware of the 2016 parenting time order and had adhered to it for

       several months without issue. Yet, when she observed Child’s bruises, she went

       straight to DCS and accused Father of abuse without even informing him of the

       existence of the bruises, let alone asking if he knew how Child had gotten them.

       At the same time, she discounted any possible involvement of others who had

       watched Child after he returned from Father’s house. DCS issued the safety

       plan without verifying the accuracy of Mother’s assertions about Father, a plan

       that not only purported to prevent Father from having unsupervised visits with

       Child but also named Mother as the supervisor/monitor. Mother wielded the

       safety plan against Father, even though he reminded her that she was still

       subject to the trial court’s 2016 parenting time order. She claims that she chose

       to adhere to the safety plan because she feared reprisal from DCS. However,

       the timing of her petition to modify parenting time (filed shortly after Father’s

       petition for order to show cause) supports a reasonable inference that she was

       aware of the court order’s precedence over the safety plan and was simply

       attempting to avoid the consequences of having defied the court order. The

       record supports the trial court’s finding that Mother willfully disobeyed the

       parenting time order, which unquestionably takes precedence over the safety


       Court of Appeals of Indiana | Memorandum Decision 36A01-1706-JP-1475 | December 4, 2017   Page 7 of 8
       plan. Mother has failed to demonstrate prima facie error in the trial court’s

       finding of contempt and denial of her petition to modify parenting time.

       Accordingly, we affirm.


[13]   Affirmed


       Robb, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 36A01-1706-JP-1475 | December 4, 2017   Page 8 of 8
