      MEMORANDUM DECISION
                                                                      Sep 24 2015, 10:12 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 APPELLANTS                                 ATTORNEY FOR APPELLEES
      Dominic W. Glover                                       Casey D. Cloyd
      Coriden Coriden Andrews & Glover,                       Indianapolis, Indiana
      LLC
      Columbus, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Rachel Ann Nelson and Corey                             September 24, 2015
      Joe Dennison,                                           Court of Appeals Case No.
                                                              03A01-1502-DR-62
      Appellants-Respondents,
                                                              Appeal from the Bartholomew
              v.                                              Circuit Court

                                                              The Honorable Stephen R.
      Tammy Sue Nelson and Pamela                             Heimann, Judge
      Nelson,
      Appellees-Petitioners.                                  Cause No. 03C01-1204-DR-1639




      Najam, Judge.


                                         Statement of the Case
[1]   Rachel Ann Nelson (“Mother”) appeals the trial court’s denial of her verified

      petition to terminate an order of custody regarding her minor child J.N.


      Court of Appeals of Indiana | Memorandum Decision 03A01-1502-DR-62 | September 24, 2015   Page 1 of 8
      Mother presents a single issue for our review, namely, whether the trial court

      abused its discretion when it ordered that J.N. remain in the custody of Tammy

      Sue Nelson and Pamela Nelson, J.N.’s maternal grandmother and great aunt,

      respectively. We affirm.1


                                  Facts and Procedural History
[2]   On October 19, 2006, Mother, who was unmarried at the time, gave birth to

      J.N. During all but approximately eight months of her life since birth, J.N. has

      lived in Tammy Sue’s home, sometimes with Mother and sometimes while

      Mother lived elsewhere. On April 2, 2012, Tammy Sue and Pamela, who live

      in adjoining apartments, filed a petition for custody of J.N. At a final hearing

      on that petition on June 21, 2012, Mother testified that she “had no place to

      live, no job, no source of income, a number of outstanding criminal issues and

      no vehicle.” Appellant’s Amended App. at 11. And Mother testified that “she

      believed it was in the best interests of her daughter for the Court to award

      custody of [J.N.] to [Tammy Sue and Pamela].” Id. J.N.’s father was not

      present at that hearing. The trial court granted the custody petition.


[3]   On September 8, 2014, Mother filed a verified petition to terminate the June

      2012 custody order. At a hearing on that petition, the trial court heard the

      following evidence: Mother was on probation following a possession of




      1
        Corey Joe Dennison, J.N.’s father, is a named Appellant/Petitioner. But he did not join Mother in her
      petition to terminate the custody order, and he does not participate in this appeal.



      Court of Appeals of Indiana | Memorandum Decision 03A01-1502-DR-62 | September 24, 2015         Page 2 of 8
      methamphetamine conviction in 2013; Mother had not failed any drug screens

      while on probation; Mother’s criminal history includes “two conversions and a

      battery,” Tr. at 13-14; Mother completed substance abuse treatment; Mother is

      married and gave birth to twins in July 2014; Mother’s husband is not the

      biological father of the twins; Mother works part-time at a hotel; Mother lives in

      a one-bedroom apartment with her husband and twins; Mother’s husband is on

      probation for a driving while intoxicated conviction; and Mother has exercised

      visitation with J.N., including overnights, every weekend or every other

      weekend. Tammy Sue and Pamela testified that they believed it was in J.N.’s

      best interests to remain in their custody. The trial court denied Mother’s

      verified petition. This appeal ensued.


                                     Discussion and Decision
[4]   Mother contends that the trial court abused its discretion when it denied her

      verified petition to terminate the custody order. Our standard of review is well-

      settled. We review custody modifications for an abuse of discretion, with a

      “preference for granting latitude and deference to our trial judges in family law

      matters.” Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002) (quoting In re Marriage

      of Richardson, 622 N.E.2d 178, 178 (Ind. 1993)). We set aside judgments only

      when they are clearly erroneous, and will not substitute our own judgment if

      any evidence or legitimate inferences support the trial court’s judgment. Id.


[5]   In Indiana, we apply “the important and strong presumption that a child’s

      interests are best served by placement with the natural parent.” In re


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Guardianship of B.H., 770 N.E.2d 283, 287 (Ind. 2002). And, as our supreme

court has explained with respect to third party custody proceedings,

        the distinctions between the statutory factors required to obtain
        initial custody and those required for a subsequent custody
        modification are not significant enough to justify substantially
        different approaches in resolving custody disputes. Instead both
        require a determination of the child’s best interest, and both
        require consideration of certain relevant factors. See Ind. Code §
        31-14-13-2 (Factors for custody determination), Ind. Code § 31-
        14-13-6 (Modification of child custody order). And importantly,
        Indiana courts have long held that “[e]ven when a parent initiates
        an action to reobtain custody of a child that has been in the
        custody of another, the burden of proof does not shift to the
        parent . . . [r]ather, the burden of proof is always on the third
        party.” In re Guardianship of J.K., 862 N.E.2d 686, 692 (Ind. Ct.
        App. 2007) (quoting In re Custody of McGuire, 487 N.E.2d 457,
        460-61 (Ind. Ct. App. 1985)). A burden shifting regime that
        places “the third party and the parent on a level playing field,”
        Z.T.H., 839 N.E.2d at 253, is inconsistent with this State’s long-
        standing precedent. . . .

        It is of course true that 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.” I.C. §
        31-14-13-6; see also Heagy v. Kean, 864 N.E.2d 383, 388 (Ind. Ct.
        App. 2007) (holding that “[m]odification of child custody may
        occur only when a parent can demonstrate ‘modification is in the
        best interests of the child, and there is a substantial change in one
        or more factors the court may consider.’”). But these are modest
        requirements where the party seeking to modify custody is the
        natural parent of a child who is in the custody of a third party.
        The parent comes to the table with a “strong presumption that a
        child’s interests are best served by placement with the natural

Court of Appeals of Indiana | Memorandum Decision 03A01-1502-DR-62 | September 24, 2015   Page 4 of 8
              parent.” B.H., 770 N.E.2d at 287. Hence the first statutory
              requirement is met from the outset. . . . In essence, although in a
              very technical sense, a natural parent seeking to modify custody
              has the burden of establishing the statutory requirements for
              modification by showing modification is in the child’s best
              interest, and that there has been a substantial change in one or
              more of the enumerated factors, as a practical matter this is no
              burden at all. More precisely, the burden is minimal. 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.” B.H., 770 N.E.2d at 287. 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.


      In re K.I., 903 N.E.2d 453, 460-61 (Ind. 2009).


[6]   Here, at the hearing on Mother’s petition, the trial court acknowledged K.I. but

      erroneously concluded that, because K.I. involved a guardianship, it was

      inapposite to this case. The trial court did not make special findings in its

      written order, but, at the conclusion of the hearing, the trial court had stated as

      follows:

              This Court believes that the appropriate standard, since this is not
              a guardianship, and since this is a modification of a set Custody
              Order, this court believes in reviewing the law that’s been
              presented here and the Court’s experience . . . in the past is that
              this modification of custody, since there’s already been custody
              established, is such that mother would have the burden to prove
              these things under [Indiana Code Section] 31-17-2-8 and that the
              modification is in the best interest of the child and there has been
              a substantial change in one or more of the factors such that it
              would be in the best interest of the minor child. Okay. What
      Court of Appeals of Indiana | Memorandum Decision 03A01-1502-DR-62 | September 24, 2015   Page 5 of 8
              that burden is then, is at issue. But regardless of what that
              burden is, whether it’s a minimal burden, by the natural parent,
              or whether it is a more stringent burden, the Court must . . .
              determine credibility of witnesses as it relates to the testimony
              that’s come here. And the court notes that specifically in this
              case. In determining that mother has not met her burden, that it
              is in the best interest of the minor child that custody be dissolved
              under this case, and that she receive custody of the minor child,
              as a result of her being the child’s mother. The Court does note
              that mother has made improvements in her life, but I will
              reiterate the credibility of the witnesses as it relates to the
              controverted issues here today, and the Court is relying upon that
              in making this determination. And so, therefore, I am going to
              find that Mother’s petition is denied at this point.


      Tr. at 92-93.


[7]   Mother contends that, in light of those statements, it is obvious that the trial

      court “failed to apply the standards outlined in K.I.” Appellant’s Br. at 7. In

      particular, Mother argues that


              K.I. indicates that Natural Mother meets her initial statutory
              burden—the burden that the trial court here indicates Natural
              Mother failed to prove—“from the onset” by virtue of her
              relationship with the child. Once Natural Mother meets that
              burden the third party must then prove by clear and convincing
              evidence that the child’s best interests are substantially and
              significantly served by placement with another person. That was
              never proven here.

              The trial court here put the third parties and the parent on a level
              playing field and indicated that Natural Mother failed to carry
              her burden of proof. The trial court then also failed to find by
              clear and convincing evidence that [J.N.]’s best interests are
              substantially and significantly served by placement with another
      Court of Appeals of Indiana | Memorandum Decision 03A01-1502-DR-62 | September 24, 2015   Page 6 of 8
              person. The evidence failed to indicate that [J.N.]’s best interests
              are substantially and significantly served by continued placement
              with the third parties.


      Id.


[8]   Tammy Sue and Pamela agree that “K.I. correctly states the controlling Indiana

      law about resolution of custody disputes between natural parents and third

      parties.” Appellees’ Br. at 7. Thus, they contend that Mother’s burden of proof

      here was minimal, and the burden then shifted to them to prove by clear and

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

      significantly served by placement with another person. K.I., 903 N.E.2d at 460-

      61. Tammy Sue and Pamela maintain that they satisfied that burden, and they

      point out that we can affirm the trial court’s denial of Mother’s petition on that

      ground. We must agree.


[9]   In Baxendale v. Raich, 878 N.E.2d 1252, 1257-58 (Ind. 2008), our supreme court

      reiterated that,


              “[i]n the absence of special findings, we review a trial court
              decision as a general judgment and, without reweighing evidence
              or considering witness credibility, affirm if sustainable upon any
              theory consistent with the evidence.” Perdue Farms, Inc. v. Pryor,
              683 N.E.2d 239, 240 (Ind. 1997)). Judgments in custody matters
              typically turn on essentially factual determinations and will be set
              aside only when they are clearly erroneous. We will not
              substitute our own judgment if any evidence or legitimate
              inferences support the trial court’s judgment. The concern for
              finality in custody matters reinforces this doctrine. See Kirk v.



      Court of Appeals of Indiana | Memorandum Decision 03A01-1502-DR-62 | September 24, 2015   Page 7 of 8
                  Kirk, 770 N.E.2d 304, 307 (Ind. 2002) (citing In re Marriage of
                  Richardson, 622 N.E.2d 178, 178 (Ind. 1993)).


[10]   The trial court did not enter special findings to explain its denial of Mother’s

       petition. However, at the conclusion of the hearing, the trial court expressly

       stated that it found Mother to be not credible, and we cannot reassess credibility

       on appeal. Id. Regardless of what burden was used by the trial court, in light of

       the overwhelming evidence presented by Tammy Sue and Pamela and the fact

       that the trial court found Mother not to be credible, any error was harmless. See

       P.S. by Harbin v. W.S., 452 N.E.2d 969, 976-77 (Ind. 1983). In particular, the

       evidence shows that: J.N. has lived with Tammy Sue for all but approximately

       eight months of her life;2 Mother admitted to having “had lots of criminal

       cases” in the past, including a January 2013 conviction for possession of

       methamphetamine, for which she spent approximately five months in jail;

       Mother has not participated in any parent-teacher meetings concerning J.N.

       and has not asked to see J.N.’s report cards; and Mother has a habit of bringing

       J.N. back home to Tammy Sue and Pamela when J.N. becomes ill during visits

       with Mother. We affirm the trial court’s denial of Mother’s petition for

       termination of custody order.


[11]   Affirmed.


       Vaidik, C.J., and Kirsch, J., concur.


       2
           At the time of the hearing, J.N. was eight years old.



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