MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this
                                                                              FILED
Memorandum Decision shall not be regarded as                             Oct 12 2016, 9:26 am
precedent or cited before any court except for the                            CLERK
purpose of establishing the defense of res judicata,                      Indiana Supreme Court
                                                                             Court of Appeals
collateral estoppel, or the law of the case.                                   and Tax Court




ATTORNEYS FOR APPELLANT
Bryan L. Ciyou
Darlene R. Seymour
Ciyou & Dixon, PC
Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

In Re: The Paternity of A.R.                             October 12, 2016
(Minor Child)                                            Court of Appeals Cause No.
A.R. (Minor Child) by Next Friend,                       41A04-1409-JP-436
C.T., III,
                                                         Appeal from the Johnson
Appellant-Petitioner,                                    Superior Court
                                                         The Honorable Terry K.
        v.                                               Snow, Special Judge

J.R.,                                                    Cause No. 41D02-1312-JP-
                                                         222
Appellee-Respondent.



Riley, Judge.




Court of Appeals of Indiana | Memorandum Opinion 41A04-1409-JP-436 | October 12, 2016             Page 1 of 13
                                   STATEMENT OF THE CASE

[1]   Appellant-Petitioner, Conrad Terhune (Father), appeals the trial court’s Order,

      denying his petition to modify child custody of his minor daughter, A.R.T. (the

      Child).


[2]   We affirm.


                                                     ISSUE

[3]   Father raises two issues on appeal, which we restate as: Whether the trial court

      abused its discretion by denying Father’s petition to modify child custody.


                             FACTS AND PROCEDURAL HISTORY


[4]   On January 8, 2008, Jessica Rees (Mother) gave birth to the Child. At the time

      the Child was born, paternity had not been established. Mother also has two

      daughters with two different fathers, A.R.D. born on September 13, 2000, and

      L.R.S., born on March 8, 2002. On April 3, 2008, Mother filed a petition to

      establish paternity. Father’s paternity of the Child was conclusively established

      on July 8, 2008. On July 31, 2008, Father filed a motion for a custody

      evaluation referral, and the trial court referred the parties to Youth Connections

      in Johnson County on August 11, 2008. An Agreed Paternity was filed on

      November 19, 2008, in which the parties agreed to share joint legal custody of

      the Child, with Mother having primary physical custody. Parenting time was

      awarded to Father according to the Indiana Parenting Time Guidelines

      (Guidelines). In addition, the parties agreed that the Child’s birth certificate

      would be amended to reflect Father’s last name.
      Court of Appeals of Indiana | Memorandum Opinion 41A04-1409-JP-436 | October 12, 2016   Page 2 of 13
[5]   Even with the existence of a mutual custody agreement, Mother consistently

      refused to allow Father to exercise regular overnight parenting time, and she

      would not adhere to the holiday parenting time schedule as ordered. In

      January of 2009, the parties submitted a Stipulation and Order Appointing

      Parenting Time Coordinator which was approved on January 29, 2009. With

      the help of a Parenting Coordinator (PC) from Youth Connections, the parties

      were to work on issues regarding parenting time. For the most part, Mother

      was very uncooperative. In a report dated September 29, 2009, the PC reported

      that a meeting had been scheduled for September 10, 2009, and adequate

      notices had been given to the parties; however, Mother failed to attend. In

      another report, the PC indicated that Mother had exhibited signs of being

      irrational in discussions, and the PC recommended counseling for Mother. The

      PC further stated that Mother had hung up on her phone calls several times,

      became verbally abusive when she was asked to follow the parenting time

      schedule, and at one time refused to leave the PC’s office when she was asked

      to leave.


[6]   On July 30, 2009, Father filed a petition for modification of child custody based

      on Mother’s actions denying him parenting time. The parties participated in

      mediation, and on August 7, 2009, the trial court approved the parties’

      Mediated Agreement. This agreement specified, in part, that Father’s weekend

      parenting time to commence Friday evening until Monday at noon on

      alternating weekends, and his mid-week parenting time to run from Wednesday

      evening until Thursday at noon.


      Court of Appeals of Indiana | Memorandum Opinion 41A04-1409-JP-436 | October 12, 2016   Page 3 of 13
[7]   Relevant to this appeal, on September 11, 2012, Father filed a second petition

      to modify custody. Father alleged, in part, that he had “grave concerns that . . .

      the [C]hild had been exposed to inappropriate behaviors” by members of

      Mother’s household; and Mother was dating multiple men and her involvement

      with these men “confuses the [C]hild.” (Appellant’s App. p. 63). On March 8,

      2013, Father requested a final hearing on the pending issues, and then on April

      3, 2013, he requested the appointment of a Guardian Ad Litem (GAL). On April

      15, 2013, the trial court appointed a GAL.


[8]   On April 27, 2013, the Child was at Father’s home. Father resided with his

      teenage daughter, M.T., born from a previous relationship; his girlfriend,

      Shellie Hichert (Hichert); and Hichert’s teenage children from a past

      relationship—daughter, M.S., and son, C.S. On that day, the GAL made an

      unannounced visit to Father’s home and interviewed the Child as well as M.T.

      and M.S. Thereafter, on April 29, 2013, the GAL visited Mother’s home to

      interview Mother. Mother subsequently filed a petition to remove the GAL. In

      her petition, Mother alleged that the GAL appeared intent on questioning her

      oldest daughter, A.R.D., about a report of unsubstantiated sexual abuse

      involving the Child. Specifically, there had been an allegation in February 2012

      stating that A.R.D. had touched the Child’s private area. The GAL responded

      by filing a motion to strike portions of Mother’s petition. On July 22, 2013,

      four months after Mother’s petition to remove the GAL, Mother filed a motion

      to withdraw and thereafter, the GAL visited Mother’s home to interview the




      Court of Appeals of Indiana | Memorandum Opinion 41A04-1409-JP-436 | October 12, 2016   Page 4 of 13
       Child, A.R.D., and Mother’s other daughter, L.R.S. Mother closely monitored

       the interview, and according to the GAL, it seemed coached.


[9]    On August 9, 2013, Mother wrote an email to the GAL inviting her to speak

       with the Child. According to Mother, the Child had something she wanted to

       share with the GAL. On Sunday, August 18, 2013, the GAL visited Mother’s

       home unannounced. The GAL tried to talk to the Child while on a walk, but

       the Child walked very fast. Throughout the interview, the Child did not

       disclose anything to the GAL and appeared to have no idea why the GAL was

       meeting with her, and spent her time drawing. In October of 2013, the GAL

       asked Mother what the Child wanted to share, and Mother informed the GAL

       that the Child had alleged that Hichert, Father’s live-in girlfriend, had hit her in

       anger and Father had called the Child a liar. The GAL also visited Father’s

       home in that same month to interview the Child. The Child spoke minimally

       and spent most of the time drawing with markers.


[10]   Although there had been unsubstantiated allegation of sexual abuse involving

       A.R.D. touching the Child’s private area, Father remained concerned because

       the Child displayed inappropriate behavior. Specifically, in September of 2012,

       when Father picked up the Child from daycare, he found the Child with

       “another little boy in the bathroom and everyone was kind of checking each

       other out.” (Tr. p. 98). More than a year after the sexual abuse allegation

       relating to A.R.D., in or about October of 2013, Mother made a report to DCS

       that Hichert’s teenage son, C.S., touched the Child’s private area. That

       allegation was later found to be unsubstantiated.

       Court of Appeals of Indiana | Memorandum Opinion 41A04-1409-JP-436 | October 12, 2016   Page 5 of 13
[11]   Father states that Mother had exposed the Child to numerous men. First,

       Father states that Michael Childers (Childers), Mother’s current fiancé, has a

       criminal record—i.e., a burglary conviction in 2008. In addition, Mother failed

       to disclose to the GAL her relationship with Childers or that he was living in

       her home. Mother’s relationship with Childers had been on and off since 2008.

       Somewhere between 2008 and 2012, Mother became romantically involved

       with Gregg Smith (Smith), and there was a claim that Mother dated another

       man, Josh Hosman (Hosman), but the record shows that Hosman was Mother’s

       friend.


[12]   On November 12, 2013, the GAL filed her twenty-nine-page report with the

       trial court. A bifurcated evidentiary hearing for Father’s petition to modify the

       existing custody arrangement was held on March 11, 2014, and April 14, 2014.

       At the hearing, Mother, GAL, Mother’s father, Father, and Hichert, testified.

       The GAL advised for the modification of custody based on her findings, and

       further opined that Father was a better parent. Mother indicated that she

       wished to maintain the status quo. At the close of the hearing, the trial court

       concluded that there was no substantial change in the circumstances to warrant

       modification of custody.


[13]   Father now appeals. Additional facts will be provided as necessary.




       Court of Appeals of Indiana | Memorandum Opinion 41A04-1409-JP-436 | October 12, 2016   Page 6 of 13
                                   DISCUSSION AND DECISION

                                            I. Standard of Review

[14]   Father argues that the trial court abused its discretion in refusing to modify

       custody. The trial court entered a number of orders at the conclusion of the

       hearing. These orders do not contain any purported conclusions of law, except

       for a single order denying modification of custody. Six other directives related

       to the parties’ parenting time, the Child’s insurance, the parties’ obligation to

       disclose who resided in their homes, and the parties’ obligation to report in the

       event of a relocation.


[15]   We note that sua sponte findings control only the issues they cover, and a

       general judgment standard of review will control as to the issues upon which

       there are no findings. In re Trust Created Under Last Will & Testament of Mitchell,

       788 N.E.2d 433, 435 (Ind. Ct. App. 2003). “A general judgment entered with

       findings will be affirmed if it can be sustained on any legal theory supported by

       the evidence.” Id. In reviewing a judgment, we will neither reweigh the

       evidence nor judge the credibility of the witnesses. Id


[16]   We grant latitude and deference to trial courts in family matters. Heagy v. Kean,

       864 N.E.2d 383, 388 (Ind. Ct. App. 2007), trans. denied. “Therefore, custody

       modifications are left to the sound discretion of the trial court, and we may

       reverse only for an abuse of that discretion.” Id. “[I]t is not enough that the

       evidence might support some other conclusion, but it must positively require

       the conclusion contended for by appellant before there is a basis for reversal.”


       Court of Appeals of Indiana | Memorandum Opinion 41A04-1409-JP-436 | October 12, 2016   Page 7 of 13
       Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002) (quoting Brickley v. Brickley, 247

       Ind. 201, 210 N.E.2d 850 (1965)).


                                             II. Modification of Custody

[17]   As a preliminary matter, we note that Mother did not file an appellee’s brief.

       When an appellee does not submit a brief, we do not undertake the burden of

       developing arguments for that party. Thurman v. Thurman, 777 N.E.2d 41, 42

       (Ind. Ct. App. 2002). Instead, we apply a less stringent standard of review and

       may reverse if the appellant establishes prima facie error. Id. Prima facie error is

       “error at first sight, on first appearance, or on the face of it.” Van Wieren v. Van

       Wieren, 858 N.E.2d 216, 221 (Ind. Ct. App. 2006).


[18]   In Indiana, following establishment of paternity, “[t]he [trial] 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 2. . . .” Ind. Code § 31-14-13-

       6. Indiana Code section 31-14-13-2, in turn, sets forth the following factors: 1




       1
         Father cited to the statutory provisions for modification of custody in a dissolution action, Indiana Code
       section 31-17-2-21, rather than the statutory provisions for modification of custody in a paternity action,
       Indiana Code section 31-14-13-6. Although Father cites the incorrect article, his argument is unaffected as
       the legal standards included in Article 14 of Title 31 are, in pertinent part, identical to those in Article 17.

       Court of Appeals of Indiana | Memorandum Opinion 41A04-1409-JP-436 | October 12, 2016                 Page 8 of 13
               (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

               (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 . . .

       I.C. § 31-14-13-2.


[19]   At the close of the evidentiary hearing, the trial court concluded that “[F]ather

       has failed to show sufficient evidence to make it unreasonable to continue the

       custody arrangement that the parties agreed to previously. And that there is

       nothing to show that it’s not in the best interest[,] or that it would be in the best

       interest of the child to change it.” (Tr. p. 74). We note that in the trial court’s

       Court of Appeals of Indiana | Memorandum Opinion 41A04-1409-JP-436 | October 12, 2016   Page 9 of 13
       order denying Father modification of custody, the trial court did not expressly

       indicate which of the above factors it considered when it determined that a

       change in custody would not be in the Child’s best interest.


[20]   Because Father filed the petition to modify child custody, he carries the burden

       of establishing circumstances so substantial and continuous as to make the

       terms of the original child custody determination unreasonable. Father first

       notes that there was a substantial change in the Child’s mental and physical

       health based on the sexual abuse allegations. Although Father concedes that

       the sexual abuse claims against A.R.D. and C.S. were found to be

       unsubstantiated by DCS, Father claims that the Child endured trauma by

       undergoing DCS investigation. Father’s argument fails, since the trial court

       appears to have deferred to the DCS’s closure of the sexual abuse assertions

       against the Child with the designation that they had been unsubstantiated. 2




       2
          Father also claims that Mother had anger problems, and he directs us to the PC’s recommendations that
       Mother should have undergone counseling. We note that the PC’s counseling recommendation was
       prompted in June 2009 when she noted Mother’s erratic behavior on the times she interacted with Mother
       regarding parenting time, as well as Mother’s inability to stay rational in those discussions. In his appellate
       brief, Father now posits that if Mother followed the counseling recommendation, she would be able to
       “rectify the emotional issues she has, facilitate her children’s best interest, and perhaps even diffuse her anger
       towards Father.” (Appellant’s Br. p. 12). Although the PC ’s recommendation was approved by the trial
       court, shortly thereafter, in August 2009, the parties entered into mediation and resolved “all other pending
       issues in the captioned case.” (Appellant’s App. p. 58).

       Court of Appeals of Indiana | Memorandum Opinion 41A04-1409-JP-436 | October 12, 2016               Page 10 of 13
[21]   Next, Father claims that Mother had exposed the Child to “a number of men

       with criminal backgrounds.” (Appellant’s Br. p. 13). We recognize that a trial

       court considers the child’s relationship not only with his or her parents, but also

       with “any other person who may significantly affect the child’s best interests.”

       See I.C. § 31-17-2-8(4)(C). Looking at the record, we find no evidence to

       demonstrate that Mother had exposed the Child to several boyfriends. The only

       evidence in the record indicates that Mother had two boyfriends. Mother began

       dating Childers in 2008, and her relationship with Childers was on and off.

       Mother dated Smith, and then resumed her relationship with Childers. At the

       time of the evidentiary hearing, Mother was engaged to Childers. Here, the

       record counters Father’s claim that Mother dated numerous men, and despite

       Mother’s choice of dating a man with a criminal history, no evidence was

       presented that Mother’s relationship or cohabitation with Childers presented

       any adverse effect to the Child’s well-being.


[22]   In addition, Father argues that his petition to modify custody should have been

       granted because Mother exhibited a desire to obtain retribution against him.

       Father posits that a change of custody would reduce the “antagonism” between

       him and Mother, and he cites, in this regard, Needham v. Needham, 408 N.E.2d

       562, 564 (Ind. Ct. App. 1980), holding that the trial court could consider

       mother’s antagonism toward father and mother’s attempts to “poison” the

       father in the children’s minds. In advancing his claim, Father directs us to

       Mother’s report to the police disclosing Hichert’s location which resulted in an

       arrest. The record shows that Father and Hichert run a concrete business


       Court of Appeals of Indiana | Memorandum Opinion 41A04-1409-JP-436 | October 12, 2016   Page 11 of 13
       together, and there was an arrest warrant for Hichert for collection of money in

       relation to that business. In October of 2013, Mother informed the police that

       Hichert would be dropping off the Child to her at a certain location. The police

       detained Hichert at that location. According to Father, Mother was being

       vengeful. We find that Mother’s actions, painted by Father as being vindictive,

       was an isolated event. This court has held that isolated acts of misconduct by a

       custodial parent do not mandate a custody modification. In re Paternity of

       M.J.M., 766 N.E.2d 1203, 1209 (Ind. Ct. App. 2002).


[23]   Not surprisingly, Father places much emphasis on the GAL’s testimony that, in

       her opinion, it would be in the Child’s best interest to be placed in Father’s

       custody. That testimony, however, was merely one item of evidence for the

       trial court to consider in reviewing all of the pertinent factors for modifying

       custody. A trial court is not required to accept opinions of experts regarding

       custody. Clark v. Madden, 725 N.E.2d 100, 109 (Ind. Ct. App. 2000).


[24]   Frequently, trial courts are required to make difficult decisions in custody

       disputes. Father has failed to demonstrate that the Child’s mental health was in

       jeopardy based on the unsubstantiated sexual abuse allegation, that Mother’s

       boyfriends negatively affected the Child, or that Mother’s conduct of calling the

       police on Hichert was so egregious to warrant a custody modification. We find

       Father’s arguments are essentially an invitation to reweigh the evidence and

       judge the credibility of the witnesses, which we cannot do. In re Trust Created

       Under Last Will & Testament of Mitchell, 788 N.E.2d at 435. Based on all of the

       evidence before us we cannot say that the trial court abused its discretion by

       Court of Appeals of Indiana | Memorandum Opinion 41A04-1409-JP-436 | October 12, 2016   Page 12 of 13
       finding that no substantial change occurred in one of the statutory factors or

       that modification was not in Child’s best interests. Accordingly, we conclude

       that the trial court did not abuse its discretion by denying Father’s petition for

       modification of custody.


                                                CONCLUSION


[25]   Based on the foregoing, we conclude that the trial court did not abuse its

       discretion by denying Father’s petition to modify custody.


[26]   Affirmed.


[27]   Barnes, J. concurs


[28]   Bailey, J. concurs in result




       Court of Appeals of Indiana | Memorandum Opinion 41A04-1409-JP-436 | October 12, 2016   Page 13 of 13
