 Pursuant to Ind.Appellate Rule 65(D), this
 Memorandum Decision shall not be
 regarded as precedent or cited before any
 court except for the purpose of establishing
 the defense of res judicata, collateral
                                                                  May 22 2014, 10:34 am
 estoppel, or the law of the case.




ATTORNEY FOR APPELLANT:                            ATTORNEY FOR APPELLEE:

CHRIS M. TEAGLE                                    ROBERT G. FORBES
Muncie, Indiana                                    Forcum & Forbes, LLP
                                                   Hartford City, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

MEGAN M. HATZELL,                                  )
                                                   )
       Appellant/Defendant,                        )
                                                   )
               vs.                                 )     No. 38A02-1309-DR-820
                                                   )
TYLER A. HATZELL,                                  )
                                                   )
       Appellee/Plaintiff.                         )


                        APPEAL FROM THE JAY SUPERIOR COURT
                            The Honorable Max C. Ludy, Judge
                               Cause No. 38D01-1101-DR-5


                                          May 22, 2014

                MEMORANDUM DECISION - NOT FOR PUBLICATION

VAIDIK, Chief Judge
                                     Case Summary

       Megan M. Hatzell (“Mother”) appeals a custody-modification order granting

temporary custody of her three daughters to their father, Tyler A. Hatzell (“Father”).

Because we find that Mother has failed to establish that the trial court’s custody-

modification determination was clearly erroneous, we affirm.

                               Facts and Procedural History

       Mother and Father divorced in 2011. They have three daughters, Av.H., Au.H.,

and F.H. At the time of their divorce, the trial court granted Mother primary physical

custody of the children, and the parties shared legal custody. Sharing legal custody

required the parties to work together to make medical decisions for the children,

something they struggled to do. In August 2012, after a number of disputes between the

parties regarding medical treatment for Au.H., the trial court entered an order authorizing

a psychological evaluation for Au.H. Appellant’s App. p. 22. The court also expressed

“concern[] as to whether joint legal custody will remain viable in this case.” Id.

       Five months later, Mother filed a petition to modify custody. Father filed his own

custody-modification petition a short time later. The trial court heard evidence on the

petitions in September 2013.

       The majority of the evidence pertained to the parties’ daughter Au.H., who was

nine years old at the time.        Au.H. had been diagnosed with Attention Deficit

Hyperactivity Disorder (“ADHD”), mood disorder, and anxiety, and she was having




                                             2
violent emotional outbursts at Mother’s house.1 Mother described Au.H.’s behavior in

the following way:

       When [Au.H.] is at home it’s like walking on eggshells. You never know
       when she is going to be upset. When she does [get upset], she will come hit
       me in the back, she spit in my face, bit [me], pinched me, kicked me in the
       legs, screamed so loudly that her sisters have texted my mother to come
       down and help.

Tr. p. 14. According to Mother, Au.H.’s outbursts happened four to five times daily

without medication, but with medication, the outbursts occurred “once a week, if that.”

Id. at 15. Mother said that she was trying “new tactics” to deal with Au.H.’s behavior,

including walking away from Au.H., sending Au.H. to her room, and using a

“consequences reward chart.” Id. at 25. However, Mother admitted that she had locked

Au.H. in the garage to deal with her outbursts in the past. Id. at 25-26.

       Au.H.’s second-grade and third-grade teachers testified that Au.H. had emotional

outbursts at school as well. Id. at 46, 48-50. When asked whether changes in Au.H.’s

medications affected her behavior, the second-grade teacher said they did: “I believe it

was around March, [Au.H.] just started complaining about her stomach hurting and [she]

said that she had increased her medicine. That’s when I first started noticing the crying

issues seemed to become a problem.” Id. at 51. Au.H.’s third-grade teacher testified that

Au.H. had crying spells that occurred “almost daily.” Id. at 54. She said that Au.H.

“seemed to come in [to school] in high spirits after staying with her dad . . . . [T]hen there

[were] some days she said that she would fight with her mom and she would come in

with tears.” Id. at 55. Au.H.’s third-grade teacher also believed that changes in Au.H.’s

       1
          Au.H.’s therapist testified that Au.H. had been diagnosed with separation anxiety and
oppositional defiant disorder. Tr. p. 37. It is not clear from the record whether these are additional
diagnoses or Mother’s testimony regarding Au.H.’s diagnoses was incorrect.
                                                  3
medication adversely affected her behavior.      Id. at 54.   Both teachers also recalled

receiving unpleasant emails from Mother when they taught Au.H. Id. at 47, 53.

       Father testified that during his parenting time, Au.H. “pout[ed] from time to time,”

but she had “no explosive behavior.” Id. at 65. He also testified that Mother made recent

medical decisions—such as increasing the dosage of one of Au.H.’s medicines—without

his input, in violation of the court’s order that they make medical decisions together. Id.

at 68-70. Father asked the court for primary custody of all three children, saying, “I just

feel my parenting style and [] the atmosphere in the home is better for all the girls, but

especially for Au.H.’s sake.” Id. at 66.

       After taking the matter under advisement, the trial court granted Father’s

modification petition. The trial court found that there had been a substantial change in

the “interactions between the children and their parents” and “[Au.H.’s] adjustment to her

home and school” that warranted modification. Appellant’s App. p. 34. The trial court

also found that:

       [Mother] has made certain medical decisions that appear to be in violation
       of the court’s joint-custody order.

       Au.H. has crying and emotional problems in school that appear to be the
       result of her interactions with [Mother].

                               *      *     *      *      *

       [Mother] has problems controlling Au.H.’s behavior at times, and is
       dependent upon drugs to control Au.H.

       [Mother] has placed (or locked) Au.H. in the garage on occasion.

       The Court has had some concerns, since prior hearings, [about] the medical
       decisions that [Mother] has been making concerning the children.


                                            4
        [S]chool officials testified that they had received some unpleasant e-mails
        from [Mother] concerning Au.H.

        The e-mails in and of themselves are not terribly significant, but when tied
        [to] the lack of flexibility on parenting time, and the frequent medical
        examinations the children are being put through[,] said e-mails become part
        of a pattern of control on the part of [Mother].

Id. at 33-34. The court noted that although the majority of the evidence supporting

modification pertained to Au.H., “all three children should remain together.” Id. at 34.

The court concluded that “it is in the best interests of the children that temporary custody

be granted to [Father] to see if the children’s mental and physical health can be

stabilized.”2 The court granted Mother parenting time according to the Indiana Parenting

Time Guidelines.

        Mother now appeals.

                                      Discussion and Decision

        Mother contends that the trial court erred in granting Father’s petition for

modification of custody.         When we review a custody-modification determination, we

give considerable deference to the trial court that observes the parties’ conduct and

demeanor. In re Paternity of C.S., 964 N.E.2d 879, 883 (Ind. Ct. App. 2012), trans.

denied. Where, as here, the trial court issues special findings of fact and conclusions

thereon, we apply a two-tiered standard of review: we first determine whether the

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


        2
           The trial court provided that the “temporary change in custody may be reviewed at the
conclusion of the current school semester upon request by either party.” Appellant’s App. p. 35. In
addition, the trial court did not clearly state whether the change in primary physical custody also included
legal custody. However, it appears that Father was granted temporary primary physical custody and legal
custody, as the court ordered “[Father] [] not to make any changes in the medication or treatment of the
children without guidance from each of the children’s doctors,” and did not mention Mother. Id.
                                                     5
judgment. Id. We will set aside findings and conclusions only if they are clearly

erroneous. Id. A judgment is clearly erroneous if it leaves us with a firm conviction that

a mistake has been made or if it applies the wrong legal standard to properly found facts.

Kondamuri v. Kondamuri, 852 N.E.2d 939, 944 (Ind. Ct. App. 2006). When reviewing

the trial court’s determination, we do not reweigh evidence or judge witness credibility.

C.S., 964 N.E.2d at 883. Instead, we consider only the evidence and reasonable

inferences most favorable to the judgment. In re Marriage of Duckworth, 989 N.E.2d

352, 354 (Ind. Ct. App. 2013).

       Custody-modification determinations are governed by Indiana Code section 31-

17-2-21, which states:

              (a) The court may not modify a child custody order unless:
                      (1) the 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 8 and, if
                      applicable, section 8.5 of this chapter.
              (b) In making its determination, the court shall consider the factors
              listed under section 8 of this chapter.
              (c) The court shall not hear evidence on a matter occurring before
              the last custody proceeding between the parties unless the matter
              relates to a change in the factors relating to the best interests of the
              child as described by section 8 and, if applicable, section 8.5 of this
              chapter.

Subsection (b) requires that the trial court consider the following factors in determining

the best interests of the children in custody-modification cases:

              (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

                                             6
                      (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.
              (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 8.5(b) of this chapter.

Ind. Code § 31-17-2-8.

      “In summary, all that is required to support modification of custody under Indiana

Code section 31-17-2-21 is a finding that a change would be in the child’s best interests,

a consideration of the factors listed in Indiana Code section 31-17-2-8, and a finding that

there has been a substantial change in one of those factors.” Nienaber v. Nienaber, 787

N.E.2d 450, 456 (Ind. Ct. App. 2003). Although both parents are presumed to be equally

entitled to custody when an initial custody determination is made, a petitioner who later

seeks to modify custody bears the burden of demonstrating that the existing custody order

should be changed. Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002).

      At the hearings on the parties’ modification petitions, the trial court heard

evidence that Au.H. had been struggling with violent emotional outbursts at Mother’s

house and at school. Au.H.’s teachers suggested that her outbursts coincided with

changes in her medication and issues with Mother. Father testified that Au.H. did not

have violent outbursts during his parenting time. Father also testified that Mother had

been making medical decisions—such as increasing the dosage of one of Au.H.’s



                                            7
medicines—without his input, in violation of a court order that they make medical

decisions together.3

        The trial court found that there had been a substantial change in the interactions

between the children, particularly Au.H., and their parents, as well as Au.H.’s adjustment

to her home and school. The record supports the trial court’s findings, and the findings

support its conclusion that awarding custody to Father is in the children’s best interests.

We therefore conclude that the trial court’s custody-modification order is not clearly

erroneous.

        Affirmed.

NAJAM, J., and BROWN, J., concur.




        3
           Mother argues that this evidence pertains to Au.H. only—not Av.H. or F.H. Appellant’s Br. p.
11. Although the trial court acknowledged this in its order, it concluded that it was in the children’s best
interests to remain together. Appellant’s App. p. 34. Mother does not challenge that conclusion.
                                                     8
