      MEMORANDUM DECISION
                                                                               Jan 27 2015, 10:04 am
      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 estoppel, or the law of the case.



      ATTORNEY FOR APPELLANT
      Joel C. Wieneke
      Wieneke Law Office, LLC
      Plainfield, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      In Re: The Paternity of R.R.,                            January 27, 2015
                                                               Court of Appeals Cause No.
                                                               54A05-1407-JP-325
      J.R. (Father)                                            Appeal from the Montgomery
      Appellant                                                County Circuit Court
                                                               The Honorable Harry Siamas,
                                                               Judge Cause No. 54C01-1308-
              v.                                               JP-191

      T.G. (Mother),
      Appellee




      Friedlander, Judge.

[1]   J.R. (Father) appeals from the trial court’s order modifying parenting time

      following a contempt hearing. On appeal, Father argues that the trial court

      committed reversible error by modifying parenting time without a petition



      Court of Appeals of Indiana | Memorandum Opinion 54A05-1407-JP-325 | January 27, 2015       Page 1 of 13
      requesting such modification and without a finding that modification of

      parenting time was in the child’s best interests.


[2]   We reverse and remand.


[3]   Father and T.G. (Mother) are the biological parents of R.R., who was born on

      December 8, 2012. On October 11, 2013, the trial court, under Cause No.

      54C01-1308-JP-191, approved an Agreed Entry on Petition for Support and

      Unreimbursed Past Public Assistance with Paternity Affidavit (Agreed Entry)

      that designated Father as the sole legal custodian of R.R. and directed that

      Mother have parenting time pursuant to an agreement by the parties.1 At the

      time the Agreed Entry was filed, R.R. had been placed with Father through a

      CHINS action instituted by the Department of Child Services (DCS) under a

      separate cause. R.R. continued to be a DCS ward.


[4]   Subsequent to the Agreed Entry, Mother and Father entered into an Agreement

      as to Custody and Visitation, which was approved by the trial court in the

      paternity action on November 25, 2013. Specifically, Father and Mother

      incorporated the terms established in the CHINS action and agreed as follows

      with regard to parenting time:

              It is in the best interests of the child that Mother’s parenting time shall
              be supervised until she has completed all of the requirements set forth
              in the most recent Child in Need of Services action under cause
              number 54C01 1212 JC 00321. Specifically, Mother must successfully
              complete a substance abuse program, following all recommendations

      1
       The Agreed Entry further provided that if the parties were unable to reach an agreement, the Indiana
      Parenting Time Guidelines were to be followed.

      Court of Appeals of Indiana | Memorandum Opinion 54A05-1407-JP-325 | January 27, 2015           Page 2 of 13
              made by the program and remain drug free. Mother must also
              participate in medication management and show proof from a
              physician that she is compliant in the use of her prescription
              medication.


      Appellant’s Appendix at 12.

[5]   On March 31, 2014, Mother filed a Verified Motion for Contempt Regarding

      Parenting Time (Visitation) Order in which she alleged that she had made

      several attempts to communicate with Father to make arrangements for

      parenting time, but that Father had not responded to her requests. Mother did

      not include in her motion for contempt any request for modification of

      parenting time or allege that she had satisfied the terms of the November 25,

      2013 order such that unsupervised parenting time was warranted.


[6]   The trial court held a hearing on Mother’s contempt motion on May 14, 2014.

      During that hearing, Mother testified that she had only seen R.R. once since

      November 25, 2013 order was issued and that she had made several attempts to

      communicate with Father via text messages, Facebook messages, and telephone

      to arrange visitation, but that Father had not responded. Father testified that on

      December 24, 2013, he and Mother had a disagreement because Mother was

      under the impression that DCS was no longer involved and that her visitations

      with R.R. no longer had to be supervised. Mother ultimately submitted to

      Father’s requirement that her visitation with R.R. be supervised and she had a

      successful visit with R.R. A few months later Mother sent Father a message

      through Facebook and told Father that he would not supervise her visit with

      R.R. and that she would see R.R. Father responded by insisting that Mother’s

      Court of Appeals of Indiana | Memorandum Opinion 54A05-1407-JP-325 | January 27, 2015   Page 3 of 13
      visits be supervised and agreeing to let Mother see R.R. at any time under that

      condition. Mother “started getting angry with [Father] and using profanity.”

      Transcript at 8. Father testified that in accordance with the advice of a Court

      Appointed Special Advocate appointed to look out for R.R.’s best interests, he

      ceased communicating with Mother until such time as the parties could appear

      in court.


[7]   After Mother rested at the hearing, the court inquired as to whether Mother had

      complied with the requirements set forth in the November 25 order accepting

      the parties’ agreement regarding visitation. Mother testified that she had

      completed a drug treatment program at Wabash Valley and that she was

      currently participating in a relapse prevention program and individual

      counseling. Mother further informed the court that she was taking a

      medication as prescribed for her drug addiction. In her closing statement to the

      court, Mother admitted that she “did a few times get a little nasty when [she]

      shouldn’t have,” but expressed her desire to have visitation with R.R. Id. at 12.

      Mother made no request for unsupervised visitation. In his closing statement to

      the court, Father admitted that he was not aware that Mother had participated

      in a drug treatment program. Father also expressed his desire that Mother be

      involved with R.R. and have regular visits, but asked the court to clarify for

      Mother’s sake that her visits with R.R. needed to be supervised per their

      agreement.


[8]   Thereafter, the trial court set forth its ruling and reasons therefor. Specifically,

      the court noted:

      Court of Appeals of Indiana | Memorandum Opinion 54A05-1407-JP-325 | January 27, 2015   Page 4 of 13
               it’s critical for any child, but particularly a child this young to have
               regular parenting time with each parent and unfortunately that has not
               happened. It was never the intention of the court, either in the CHINS
               case or in this paternity case, that [Mother] be excluded. The court’s
               only concern in the CHINS case was that [Mother] have drug, alcohol
               treatment and complete a program and that she remain drug free and
               that was the only reason for the [sic] that it should be supervised.




      Id. at 14. The court then found that, according to Mother’s testimony, she had

      completed the requirements for terminating supervised visitation with R.R. by

      completing drug abuse treatment and participating in medication management. The

      trial court therefore found that there was no reason for the supervision of Mother’s

      visits to continue, specifically noting that the supervision requirement was “meant to

      be short term” and not a “roadblock” for a parent to have visitation with their child.

      Id. at 15. The trial court therefore ordered that Mother have parenting time pursuant

      to the guidelines, explaining that “it’s essentially every other weekend, it’s one day

      during the week and then whatever else the guidelines state.”2 Id.

[9]   Father filed a Motion to Correct Errors on June 9, 2014, in which Father

      asserted that he was not provided notice that modification of parenting time

      would be a matter before the court at the hearing on Mother’s motion for

      contempt. Father also asserted that the court’s order that Mother’s parenting



      2
       The trial court’s written order likewise stated that Mother “should have parenting time with the child as set
      out in the Indiana Parenting Time Guidelines; with the first weekend parenting time to begin Friday May 16,
      2014 to Sunday, May 18, 2014.”2 Appellant’s Appendix at 20.


      Court of Appeals of Indiana | Memorandum Opinion 54A05-1407-JP-325 | January 27, 2015             Page 5 of 13
       time include full weekends was not appropriate given R.R.’s age. The trial

       court denied Father’s motion on June 13, 2014. Father now appeals.


[10]   We first note that Mother did not file an appellee’s brief. When an appellee

       fails to submit a brief, we apply a less stringent standard of review with respect

       to the showing necessary to establish reversible error. In re Paternity of S.C., 966

       N.E.2d 143 (Ind. Ct. App. 2012), trans. denied. In such cases, we may reverse if

       the appellant establishes prima facie error, which is an error at first sight, on

       first appearance, or on the face of it. Id. But even under the prima facie error

       standard, we are nevertheless obligated to correctly apply the law to the facts in

       the record to determine whether reversal is warranted. Tisdale v. Bolick, 978

       N.E.2d 30 (Ind. Ct. App. 2012).


[11]   We begin by noting that the parties appeared before the court on Mother’s

       motion for contempt, which motion she filed in the paternity action. The

       record indicates that there was a separate CHINS action involving the same

       parties. In both actions, the issue of visitation had been previously addressed.

       An agreement between the parties as to visitation in the paternity action

       incorporated the requirement of supervised visitation that was set out in the

       CHINS action. Further, the parties agreed that supervised visitation was to

       continue until Mother could show (1) that she had successfully completed a

       substance abuse program, (2) that she was following all recommendations of

       such program and remaining drug free, and (3) that she provide proof from a

       physician that she was compliant in her use of prescription medications.



       Court of Appeals of Indiana | Memorandum Opinion 54A05-1407-JP-325 | January 27, 2015   Page 6 of 13
[12]   The trial court in the paternity action, relying solely upon Mother’s testimony,

       found that Mother had met the requirements laid out in the visitation order in

       the CHINS action and agreement of the parties in the paternity action and

       therefore ordered that Mother have unsupervised visits with R.R., despite the

       lack of such a request from Mother.3 In Father’s motion to correct error, Father

       noted that the CHINS case was terminated after Mother entered into an

       agreement stating that she would have only supervised parenting time. 4 It

       seems apparent from the record before us that there are two conflicting court

       orders concerning Mother’s visitation with R.R. and whether such visitation is

       to be supervised or unsupervised. Opposing orders of this nature will only

       create further conflict between the parties.


[13]   Further, with regard to notice, we note that Father, unrepresented by counsel,

       appeared at the contempt hearing prepared to explain to the court why Mother

       had not had visitation with R.R. and why he should not be held in contempt. It

       is apparent from Father’s statement to the court that the “roadblock” to

       visitation was Mother’s mistaken belief that her visits with R.R. did not have to

       be supervised,5 not the requirement of supervision itself. Until the court’s ruling

       on Mother’s motion for contempt, there was no notice given to Father that the


       3
         As noted above, Mother never requested unsupervised visits in her motion for contempt or during the
       hearing on her motion for contempt. Mother testified that she just wanted to see her child. Further, Father
       testified that wanted Mother to be a part of R.R.’s life and that she could visit with R.R. at any time. Father
       simply asked the court to clarify for Mother’s sake that the visits had to be supervised.
       4
         The records from the CHINS case are not directly before us. As is noted, this information was gleaned
       from Father’s motion to correct error filed in response to the trial court’s ruling on Mother’s contempt
       petition in the paternity action.
       5
           As noted herein, Mother agreed that her visits with R.R. should be supervised.


       Court of Appeals of Indiana | Memorandum Opinion 54A05-1407-JP-325 | January 27, 2015               Page 7 of 13
       court would take it upon itself to modify the parties’ agreement regarding the

       necessity of supervised visitation.6


[14]   With regard to the trial court’s remarks regarding weekend parenting time, such

       statement is inconsistent with the Guidelines’ recommendations for a child of

       R.R.’s age. If the issue before us is any indication as to how the parties will

       respond to the trial court’s order, the inconsistencies between the trial court’s

       comments regarding weekend parenting time and the recommendations of the

       Guidelines will likely prove to be a source of contention between Mother and

       Father.


[15]   Based upon the record before us, we conclude that Father has established prima

       facie error in the trial court’s order on Mother’s motion for contempt. First,

       there are conflicting orders with regard to the supervision requirement of

       Mother’s visits with R.R. Second, Father had no notice that a parenting-time

       modification would be considered at the contempt hearing. And, finally, the

       court’s order as to full weekend visitation is inconsistent with the

       recommendation of the Parenting Time Guidelines. We therefore reverse the

       trial court’s order.




       6
         The Dissent seems to believe that it was incumbent upon Father to “express surprise” or “object” to the trial
       court’s comments and verbal ruling regarding unsupervised visitation. Slip op. at 2. First, we note that
       Father agreed with the trial court’s comments insofar as the court emphasized the importance of visitation
       between a child and his parent. Second, Father set forth his position to the court that he wanted the court to
       clarify for Mother that her visitation with R.R. was to be supervised per their agreement. The court’s oral
       ruling contrary to Father’s position, which was followed up with a written order, was appropriately
       challenged through Father’s motion to correct errors and this appeal.

       Court of Appeals of Indiana | Memorandum Opinion 54A05-1407-JP-325 | January 27, 2015             Page 8 of 13
[16]   Judgment reversed and remanded.


[17]   Kirsch, J., concurs and Crone, J., dissents.




       Court of Appeals of Indiana | Memorandum Opinion 54A05-1407-JP-325 | January 27, 2015   Page 9 of 13
                                                     IN THE
               COURT OF APPEALS OF INDIANA

       In Re: The Paternity of R.R.,                               January 27, 2015
                                                                   Court of Appeals Cause No.
                                                                   54A05-1407-JP-325
       J.R. (Father)                                               Appeal from the Montgomery County
       Appellant                                                   Circuit Court
                                                                   The Honorable Harry Siamas, Judge
                                                                   Cause No. 54D01-1308-JP-191
               v.

       T.G. (Mother),
       Appellee




       Crone, Judge dissenting.

[18]   Even under a prima facie error standard of review, I see no reason to reverse the trial

       court’s order. Therefore, I respectfully dissent.


[19]   This less stringent standard is the result of Mother’s failure to file an appellee’s brief.

       Since both parties appeared pro se for the hearing at issue, it may well be that her

       failure to file an appellee’s brief is due to a lack of funds and not a lack of interest. In

       reversing the order of the trial court – which presided over both the CHINS and the

       paternity proceedings – and remanding so that the court can “coordinate its

       determination as to Mother’s parenting time with the order in the CHINS action,”

       slip op. at 8, I feel that the majority is elevating form over substance and forcing

       parties of limited means to expend additional time and money so that the court can

       Court of Appeals of Indiana | Memorandum Opinion 54A05-1407-JP-325 | January 27, 2015   Page 10 of 13
       make the same decision in a slightly reworded order. This is not an efficient use of

       the parties’ or the trial court’s resources.


[20]   The CHINS case was terminated, so there is nothing left to coordinate. 7 At the

       conclusion of the contempt hearing, the trial court explained why it imposed

       supervised parenting time in the CHINS proceeding and also explained why it

       believed that supervision was no longer necessary in the paternity proceeding:

               The court’s only concern in the CHINS case was that [Mother] have drug,
               alcohol treatment and complete a program and that she remain drug free
               and that was the only reason […] that it should be supervised. The order
               that the parties agreed to in the [paternity] case stated that parenting time
               should be supervised until she’s completed the requirements set forth in the
               most recent child in need of services action and basically that she complete a
               substance abuse program and she says that she has. Completion of the IOP
               qualifies for that. Their recommendations were that she be in relapse
               prevention and she’s doing that and she said she’s drug free and following
               her medication management. So I don’t see any reason for the supervision
               to continue. Supervision is always meant to be short term. It’s never meant
               to be long term and the court finds it often is a roadblock to a parent getting
               their visits.


[21]   Tr. at 14-15.


[22]   Father knew that Mother’s contempt motion was about his alleged denial of

       visitation, and expansion of visitation is often a remedy when visitation has been

       withheld. Father did not express surprise at or object to the trial court’s comments



       7
         The majority suggests that the CHINS case was terminated after the contempt hearing, but Father’s motion to
       correct error indicates otherwise. See Appellant’s App. at 21-22 (“That further error was the court granting full
       parenting time …. Particularly, given the fact that Mother had just completed participation in a CHINS case where
       she was the perpetrator of neglect of the parties’ child …, which was terminated by Mother entering into an agreed
       entry whereby she would have only supervised parenting time.”) (emphasis added). In any event, either party may
       seek to reopen the CHINS proceeding and request a clarifying order, if he or she desires.
       Court of Appeals of Indiana | Memorandum Opinion 54A05-1407-JP-325 | January 27, 2015          Page 11 of 13
       and verbal ruling regarding unsupervised visitation, nor did he file an objection

       before the written order was issued. Trial courts dealing with pro se litigants in

       domestic situations are often thrust into awkward situations requiring creative and

       less formal approaches than possible with represented parties. Here, this trial judge

       had worked extensively and sincerely with these parties, and I am inclined to defer to

       his judgment in this circumstance. In sum, Father was given notice of and an

       opportunity to be heard on the issue of unsupervised visitation, and he failed to avail

       himself of that opportunity. “It is well settled that a party may not sit idly by, permit

       the court to act in a claimed erroneous manner, and subsequently attempt to take

       advantage of the alleged error.” Linenburg v. Linenburg, 948 N.E.2d 1193, 1197 (Ind.

       Ct. App. 2011) (citation, quotation marks, and brackets omitted).


[23]   Father complains about a lack of finding that an expansion of visitation would be in

       the child’s best interests, yet he ignores the trial court’s comments that “it’s critical

       for any child, but particularly a child this young to have regular parenting time with

       each parent and unfortunately that has not happened.” Tr. at 14. While some may

       quibble about whether these comments are technically a “finding” of the best

       interests of the child in this case, it seems clear to me what the trial court was

       intending and did in fact do.


[24]   As for Mother not showing proof from a physician that she was compliant in her use

       of prescription medication, I would point out that the trial court, who imposed that

       requirement, obviously found her testimony credible and was satisfied that its




       Court of Appeals of Indiana | Memorandum Opinion 54A05-1407-JP-325 | January 27, 2015   Page 12 of 13
       concerns regarding her substance abuse issues had been met. Thus, the court was

       well within its discretion to waive that requirement.8


[25]   And finally, although the trial court’s verbal remarks regarding weekend parenting

       time and the portion of its written order regarding “the first weekend parenting time”

       may not appear to be consistent with the Guidelines’ recommendations for a child

       R.R.’s age, the important thing is that the order specifically states that Mother

       “should have parenting time with [R.R.] as set out in” the Guidelines. Appellant’s

       App. at 20. Thus, the specific language of the Guidelines controls. The trial court

       gave each party a copy of the Guidelines, and therefore the parties are equally

       equipped to ensure that the Guidelines are followed. That being the case, I would

       affirm the trial court in all respects.




       8
         Or the court could have amended its prior order sua sponte. See Ind. Trial Rule 54(B) (stating that nonfinal
       judgments are “subject to revision at any time before the entry of judgment adjudicating all the claims and the rights
       and liabilities of all the parties”). But “[t]he law does not require the doing of a useless thing[.]” Stropes by Taylor v.
       Heritage House Childrens Ctr. of Shelbyville, Inc., 547 N.E.2d 244, 247 (Ind. Ct. App. 1989).
       Court of Appeals of Indiana | Memorandum Opinion 54A05-1407-JP-325 | January 27, 2015                 Page 13 of 13
