FOR PUBLICATION                                                  Sep 10 2013, 5:35 am




APPELLANT PRO SE:

MYRON JAY RICKMAN
Bunker Hill, Indiana




                            IN THE
                  COURT OF APPEALS OF INDIANA

MYRON JAY RICKMAN,                           )
                                             )
     Appellant-Respondent,                   )
                                             )
            vs.                              )    No. 27A02-1211-DR-950
                                             )
SHEILA RENA RICKMAN,                         )
                                             )
     Appellee-Petitioner.                    )


                    APPEAL FROM THE GRANT CIRCUIT COURT
                        The Honorable Mark E. Spitzer, Judge
                          Cause No. 27C01-0603-DR-181



                                 September 10, 2013


                            OPINION - FOR PUBLICATION


BROWN, Judge
        Myron Jay Rickman, pro se, appeals the trial court’s denial of his petition for

modification of visitation order and denial of his motion to correct error. Rickman raises

one issue which we revise and restate as whether the court erred in denying Rickman’s

petition for modification of visitation order and motion to correct error. We reverse and

remand.

                           FACTS AND PROCEDURAL HISTORY

        On May 4, 1996, Rickman and Sheila Rickman were married and had one child,

M.R., who was born on November 26, 1996.1 On June 5, 1997, Sheila filed a petition for

dissolution of marriage and petition for joint preliminary injunction and temporary

restraining order. In February 1998, the court appointed a special advocate (a “CASA”)

for M.R. On March 25, 1998, the court terminated restricted visitation.

        On November 23, 1998, the court entered a custody and visitation decree which

stated that the CASA recommended that Sheila have sole legal custody of M.R. and that

Rickman “be granted supervised visitation on the basis of the CASA’s investigation into

three (3) alleged child molestation reports brought against” Rickman.                      Appellant’s

Appendix at 33. The court granted Sheila sole legal and physical custody of M.R. and

gave Rickman supervised visitation.

        On July 16, 1999, the CASA filed an emergency request for modification of

visitation between M.R. and Rickman. On July 19, 1999, the court granted the CASA’s

request and terminated visitation between M.R. and Rickman pending a hearing on




        1
          Rickman states that Sheila was granted a name change for M.R. to M.J., but does not cite to the
record for such a name change.
                                                   2
August 23, 1999. Following the hearing, on August 26, 1999, the court suspended

Rickman’s visitation rights.

       In 2000, Rickman was sentenced to an aggregate term of fifty years for eight

counts of child molesting as class A felonies, child molesting as a class C felony, and

criminal confinement as a class C felony.2 See Rickman v. State, No. 27A04-1002-CR-

80, slip op. at 3 (Ind. Ct. App. August 5, 2010).

       On September 20, 2012, Rickman, pro se, filed a verified petition for modification

of visitation order. He requested that the court grant him telephone access with M.R. and

communication via mail. Rickman also suggested that “any/all determination of his

modification (of visitation) request be conveyed directly to [M.R.] by the court, in

camera, so as to preclude parental pressure.” Appellant’s Appendix at 41. On September

27, 2012, the court denied Rickman’s petition without a hearing. The chronological case

summary (“CCS”) contains an entry which states: “The Court, having reviewed

[Rickman’s] Verified Petition for Modification of Visitation Order, now denies such

petition without hearing.         [Rickman] is incarcerated at the Indiana Department of

Corrections on Child Molesting charges.” Id. at 17.

       On October 24, 2012, Rickman filed a motion to correct error. He alleged that the

court erred in utilizing his incarceration “as a premise for denying his visitation right(s),

in toto, . . . via the Indiana Parenting Time Guidelines” and that the trial court did not find

nor did the State assert “that the [child molesting] charge[s were] in any way associated




       2
           The victim of Rickman’s offenses was not M.R. Rickman, slip op. at 2-3.

                                                    3
with his own child.” Id. at 44. On October 30, 2012, the court denied Rickman’s motion

to correct error.

                                       DISCUSSION

       Before addressing Rickman’s arguments, we note that Sheila did not file an

appellee’s brief. When an appellee fails to submit a brief, we do not undertake the

burden of developing appellee’s arguments, and we apply a less stringent standard of

review, that is, we may reverse if the appellant establishes prima facie error. Zoller v.

Zoller, 858 N.E.2d 124, 126 (Ind. Ct. App. 2006). This rule was established so that we

might be relieved of the burden of controverting the arguments advanced in favor of

reversal where that burden properly rests with the appellee. Wright v. Wright, 782

N.E.2d 363, 366 (Ind. Ct. App. 2002). However, questions of law are still reviewed de

novo. McClure v. Cooper, 893 N.E.2d 337, 339 (Ind. Ct. App. 2008).

       The issue is whether the court erred in denying Rickman’s petition for

modification of visitation order and motion to correct error. A decision about parenting

time requires us to give foremost consideration to the best interests of the child.

Perkinson v. Perkinson, 989 N.E.2d 758, 761 (Ind. 2013). Generally, parenting time

decisions are reviewed for an abuse of discretion. Id. If the record reveals a rational

basis for the trial court’s determination, there is no abuse of discretion. In re Paternity of

G.R.G., 829 N.E.2d 114, 122 (Ind. Ct. App. 2005). We will not reweigh evidence or

reassess the credibility of witnesses. Id. We review a trial court’s denial of a motion to

correct error for an abuse of discretion, reversing only where the trial court’s judgment is




                                              4
clearly against the logic and effect of the facts and circumstances before it or where the

trial court errs on a matter of law. Perkinson, 989 N.E.2d at 761.

       Rickman argues that the Indiana Parenting Time Guidelines encourage

communication with a child by telephone and mail and that “[t]his is exactly what [he] is

requesting if . . . [M.R.] is receptive.” Appellant’s Brief at 8. He contends that “the court

shall not restrict a parent’s parenting time rights unless the court finds that the parenting

time might endanger the child’s physical health or significantly impair the child’s

emotional development.” Id. (citing Ind. Code § 31-17-4-2). He requests that we remand

this case to the trial court with instructions that the court conduct an in camera interview

and notify the parties of M.R.’s decision as to his desire to have communication with

him.

       To the extent that Rickman suggests that the trial court did not make the requisite

finding under Ind. Code § 31-17-4-2, we observe that the statute governs the

modification, denial, and restriction of parenting time rights and provides:

       The court may modify an order granting or denying parenting time rights
       whenever modification would serve the best interests of the child.
       However, the court shall not restrict a parent’s parenting time rights unless
       the court finds that the parenting time might endanger the child’s physical
       health or significantly impair the child’s emotional development.

Ind. Code § 31-17-4-2. The trial court did not make any finding that a restriction on

Rickman’s parenting time consisting of telephone and mail contact might endanger

M.R.’s physical health or significantly impair his emotional development, as required by

Ind. Code § 31-17-4-2.




                                             5
      To the extent that Rickman cites the Indiana Parenting Time Guidelines, we

observe that the Guidelines provide that “[b]oth parents shall have reasonable phone

access to their child” and “[a] parent and a child shall have a right to communicate

privately by . . . cards, letters, and packages, without interference by the other parent.”

Ind. Parenting Time Guideline I(A). At the time that Rickman filed his petition, Part C of

the Preamble of the Parenting Time Guidelines provided:

      These Guidelines are applicable to all child custody situations, including
      paternity cases and cases involving joint legal custody where one person
      has primary physical custody. However, they are not applicable to
      situations involving family violence, substance abuse, risk of flight with a
      child, or any other circumstances the court reasonably believes endanger
      the child’s physical health or safety, or significantly impair the child’s
      emotional development. In such cases one or both parents may have legal,
      psychological, substance abuse or emotional problems that may need to be
      addressed before these Guidelines can be employed. The type of help that
      is needed in such cases is beyond the scope of these Guidelines.

                                         *****

      There is a presumption that the Indiana Parenting Time Guidelines are
      applicable in all cases covered by these guidelines. Any deviation from
      these Guidelines by either the parties or the court must be accompanied by
      a written explanation indicating why the deviation is necessary or
      appropriate in the case.

                                      Commentary

      The written explanation need not be as formal as Findings of Fact and
      Conclusions of Law; however, it must state the reason(s) for the deviation.

(Emphasis added) (subsequently amended January 4, 2013, effective March 1, 2013).

      The question to be addressed, then, is whether the Guidelines apply to this

situation. As noted, the CCS entry is devoid of explanation and contains no finding that

there are circumstances which “the court reasonably believes endanger the child’s


                                            6
physical health or safety, or significantly impair the child’s emotional development.”

Preamble of the Parenting Time Guidelines.

       We note that absent potential endangerment or significant impairment of the

child’s health, safety, or emotional development, the plain language of the Parenting

Time Guidelines presumes that the Guidelines would apply in this case. Further, the

Indiana Supreme Court has implied that the Parenting Time Guidelines apply when one

parent is incarcerated. Specifically, in Clark v. Clark, 902 N.E.2d 813, 814 (Ind. 2009),

the Indiana Supreme Court addressed whether incarceration constituted a substantial

change in circumstances justifying modification of an existing child support obligation.

In its discussion, the Court held that “[s]trengthening marriages and relationships

between children and non-custodial parents has emerged as a national strategy for

enhancing the well-being of children.” 902 N.E.2d at 817 (noting: “See Preamble for Ind.

Parenting Time Guidelines (2009); U.S. Government Accountability Office, Healthy

Marriage and Responsible Fatherhood Initiative: Further Progress Is Needed in

Developing a Risk–Based Monitoring Approach to Help HHS Improve Program

Oversight (2008), http://www.gao.gov/new. items/d081002.pdf; Responsible Fatherhood

and Healthy Families Act of 2007, S. 1626, 110th Cong. (2007) (introduced by Senators

Evan Bayh and Barack Obama specifically discussing the pressures on incarcerated

parents of the child support system)”).

       The CCS entry related to the denial of Rickman’s petition states only that the

petition was denied without a hearing and that Rickman was incarcerated on child

molesting charges. That statement is factual and does not constitute a sufficient written


                                             7
explanation indicating why the petition was denied or whether it was denied pursuant to

Ind. Code § 31-17-4-2, or whether the court considered the Parenting Time Guidelines.

In either event, a factual basis and a finding as to potential endangerment of M.R.’s

physical health or safety or significant impairment of his emotional development are

necessary.

       If on remand, the trial court determines the Guidelines to be applicable, it must

then proffer an explanation for its departure from the Guidelines. Thus, the trial court

must reflect upon the best interests of the child and the possible consequences of its

departure from the provisions of Indiana Parenting Time Guideline I(A). Doing so would

enable us to thoroughly and appropriately review the trial court’s deviation and the

reasons behind it.

       Under these circumstances and recognizing that Sheila did not file an appellee’s

brief, we remand for the trial court to provide a written explanation for its reasons for

denying the petition or to conduct other proceedings consistent with this opinion.

       For the foregoing reasons, we reverse the trial court’s denial of Rickman’s petition

for modification of visitation and remand for proceedings consistent with this opinion.

       Reversed and remanded.

NAJAM, J., and MATHIAS, J., concur.




                                            8
