MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                                 FILED
regarded as precedent or cited before any                                        Aug 24 2020, 9:54 am
court except for the purpose of establishing
                                                                                      CLERK
the defense of res judicata, collateral                                          Indiana Supreme Court
                                                                                    Court of Appeals
estoppel, or the law of the case.                                                     and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
Andrea L. Ciobanu                                        Cassandra A. Kruse
Ciobanu Law, P.C.                                        Emswiller, Williams, Noland &
Indianapolis, Indiana                                    Clarke, LLC
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Sean Milligan,                                           August 24, 2020
Appellant/Respondent,                                    Court of Appeals Case No.
                                                         20A-DC-412
        v.                                               Appeal from the Marion Superior
                                                         Court
Kelli Milligan,                                          The Hon. Gary L. Miller, Judge

Appellee/Petitioner.                                     The Hon. Deborah J. Shook,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         49D03-1702-DC-7323



Bradford, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 20A-DC-412 | August 24, 2020       Page 1 of 25
                                          Case Summary
[1]   Sean and Kelli Milligan (“Father” and “Mother,” respectively) are the parents

      of A.M., who was born in 2012, when Father and Mother were still married. In

      2014, Father was convicted of Level 6 felony sexual battery of Mother’s

      daughter from a prior relationship and was required to register as a sex offender

      for ten years. In around 2016, Father and Mother divorced. For a time, Father

      and Mother had joint legal and shared physical custody of A.M. In October of

      2018, while exercising parenting time with A.M., Father was arrested for failing

      to register as a sex offender. In June of 2019, the trial court issued an order on

      several pending matters, awarding, inter alia, Mother sole legal custody of A.M.

      as to healthcare matters due to Father’s interference with A.M.’s therapy.

[2]   On July 11, 2019, Father was arrested on a new charge of failing to register as a

      sex offender, and instead of informing Mother or offering her additional

      parenting time, left A.M. with a friend. The same day, Mother filed an

      emergency motion for modification of custody, request for modification of

      parenting time, and motion for rule to show cause why Father should not be

      held in contempt of court for failing to notify her of his arrest or offer her

      additional parenting time. In August of 2019, Mother filed an additional

      motion for rule to show cause based on Father’s failure to pay child support.

      Also in August of 2019, the trial court ordered Father to undergo a

      psychosexual evaluation, which was conducted in November.

[3]   In December of 2019, the trial court ordered that Father be limited to

      supervised visitation once a week, was not entitled to private telephone


      Court of Appeals of Indiana | Memorandum Decision 20A-DC-412 | August 24, 2020   Page 2 of 25
      conversations with A.M., and was limited to once-a-month communication

      with A.M.’s therapist, in writing. The trial court also found Father in contempt

      of court for failing to pay child support as ordered; inform Mother of his July

      11, 2019, arrest; and offer her additional parenting time after that arrest. The

      trial court also awarded Mother $2000.00 in attorney’s fees. Father contends

      that the trial court abused its discretion in limiting him to supervised visitation

      with A.M., forbidding private telephone calls, limiting his access to A.M.’s

      therapist, finding him to be in contempt for failing to inform Mother of his July

      11 arrest, and finding him to be in contempt for failing to offer Mother

      additional parenting time following that arrest. Because we disagree with all of

      Father’s contentions except for the second-to-last, we affirm in part, reverse in

      part, and remand with instructions.


                            Facts and Procedural History
[4]   Father and Mother married in 2011, and their daughter A.M. was born in June

      of 2012. In 2014, Father was convicted of Class D felony sexual battery of his

      twelve-year-old stepdaughter (and A.M.’s half-sister) and was required to

      register as a sex offender for ten years. In around 2016, Father and Mother

      divorced. On July 28, 2017, the trial court awarded joint legal and shared

      physical custody of A.M. to Parents.

[5]   Between April of 2018 and April of 2019, both parties filed several motions and

      petitions with the trial court. Meanwhile, in October of 2018, Father was

      arrested for failing to register as a sex offender while A.M. was in his care, and

      he notified Mother, who was able to retrieve A.M. before Father was taken into


      Court of Appeals of Indiana | Memorandum Decision 20A-DC-412 | August 24, 2020   Page 3 of 25
formal custody. On June 25, 2019, the trial court issued an order on

outstanding matters, ordering, inter alia, modification of custody such that

Father and Mother were awarded joint legal custody of A.M., awarding Mother

sole legal custody of A.M. with respect to healthcare decisions, and granting

Father parenting time consistent with the Indiana Parenting Time Guidelines.

The trial court’s order contained the following findings regarding A.M.’s

participation in counseling:

             20. Neither party disputes that on August 23, 2018,
        Mother contacted Father about [A.M.] starting counseling.
        […]
               22. Neither party disputes that prior to Mother reaching
        out to Father to obtain his consent, [A.M.] had not yet begun
        counseling.
               23. Father consented to [A.M.] starting counseling
        services, both Mother and Father had individual intake
        appointments and [A.M.] started counseling with Kimberly
        Joyce.
              24. After [A.M.] began counseling, Father revoked his
        consent. Mother then ceased the counseling until permitted by
        order of this Court to resume the same.
        [….]
                27. [A Domestic Relations Counseling Bureau
        (“DRCB”)] report supported [A.M.]’s counseling, recommending
        that it continue and found troubling the fact Father insisted it be
        terminated.
        [….]
               53. On the date of the final hearing, [A.M.] was
        finishing first grade in Fishers, had been in counseling with
        [Joyce] for nearly eight months, the parties had utilized the
        services of the parenting coordinator [(“the PC”)], participated in

Court of Appeals of Indiana | Memorandum Decision 20A-DC-412 | August 24, 2020   Page 4 of 25
        a DRCB investigation, Father was arrested during his parenting
        time for failing to properly register as a sex offender, and both
        parties had been investigated by DCS.
        [….]
               57. After Father’s revocation of his consent to therapy
        for [A.M.], because the parties shared legal custody, Mother was
        forced to seek an order from the Court to resume the [A.M.]’s
        therapy because Father refused to provide consent for the same.
               58. At the date of final hearing, [A.M.]’s therapy was
        again interrupted and was scheduled to terminate after the school
        year with no new therapist in place for summer.
               59. Father acknowledged he demanded a meeting with
        the therapist’s supervisor, and after Father’s meeting the therapy
        with [Joyce] was terminated.
              60. Father did not tell Mother about the meeting with
        [A.M.]’s therapy team either before or after it occurred stating it
        was none of Mother’s business.
              61. At final hearing, despite his position prior, Father
        now claimed he was supportive of [A.M.] obtaining therapy.
              62. Mother agreed Father could take charge of selecting
        a new counselor to avoid another fight and avoid any delay in
        [A.M.] receiving therapy.
              63. As of the date of the final hearing, no new counselor
        had been selected.
        [….]
              66. Father’s actions since the July 28, 2017 Order,
        including the incidents above, have caused delay in [A.M.]
        obtaining medical and mental health care.
        [….]
               73. The Court finds it is in [A.M.]’s best interest that
        Mother be awarded sole legal custody with respect to healthcare
        decisions, including therapy and counseling decisions. […]



Court of Appeals of Indiana | Memorandum Decision 20A-DC-412 | August 24, 2020   Page 5 of 25
                     74. Mother shall continue to keep Father informed of
              all healthcare appointments for [A.M.].
                    75. Father may not interfere with [A.M.]’s counseling,
              including making excessive contact with any provider.
      Appellant’s App. Vol. II pp. 26, 30, 31, 32, 33. Additionally, the trial court

      ordered that “Father shall never share a bed with [A.M.] and shall always

      provide her a separate place to sleep [and] shall never role play with [A.M.]”

      Appellant’s App. Vol. II p. 35. Father did not appeal this order.

[6]   On July 11, 2019, during Father’s parenting time with A.M., he was again

      arrested during a court hearing in Owen County for failing to register as a sex

      offender, and, instead of contacting Mother to inform her of his arrest and

      allowing her to retrieve A.M., allowed his friend April Bricker to take her.

      Mother learned of Father’s arrest from his mother, eventually discovered

      Bricker’s whereabouts, and, when she approached the front door of Bricker’s

      residence, was told to leave or the police would be called. After making bail,

      Father arrived at Bricker’s residence and refused to release A.M. to Mother’s

      care. Later that day, Mother filed an emergency motion for modification of

      custody, request for modification of parenting time, and motion for rule to

      show cause why Father should not be held in contempt of court for failing to

      notify her of his arrest or offer her additional parenting time.

[7]   On August 19, 2019, Mother filed an additional motion for rule to show cause

      why Father should not be held in contempt for failure to pay child support as

      ordered. The same day, the trial court held a hearing at which Mother and

      Father testified. Father testified that he had two pending charges for Level 6



      Court of Appeals of Indiana | Memorandum Decision 20A-DC-412 | August 24, 2020   Page 6 of 25
      felony failing to register as a sex offender and acknowledged that he had not

      notified Mother when he was arrested on July 11. After the hearing, the trial

      court ordered a forensic psychosexual evaluation of Father. On October 17,

      2019, Father pled guilty to one count of Level 6 felony failing to register as a

      sex offender.

[8]   On November 5, 2019, Father underwent a forensic psychosexual evaluation

      conducted by Ron Smith, MS, LMHC, LCAC, CADACIV. Smith interviewed

      Father and considered a summary of a March of 2019 assessment of alleged

      child abuse or neglect (“the Summary”). During the interview, Father denied

      that he needed help for sexually battering his stepdaughter. Smith noted that,

      according to the Summary, A.M. had been lying, stealing, and engaging in

      boyfriend-girlfriend role-playing with Father; she had grabbed the front of a

      two-year-old male cousin’s pants; there were concerns that Father had been

      grooming her for sexual abuse and telling her to lie in therapy; and she had

      reported that she and Father would cuddle in bed together. Smith opined that

      Father was in denial regarding his risk level, with Father believing that he posed

      no threat to A.M. Smith also noted that Father had not completed any

      specialized sex-offender therapy that would reduce the risk of reoffending. On

      November 15, 2019, Father filed a motion for rule to show cause why Mother

      should not be held in contempt of court for interfering with his attempts to

      participate in A.M.’s therapy.

[9]   On November 18, 2019, the trial court held another hearing. Mother

      introduced evidence that Father had made only four child support payments



      Court of Appeals of Indiana | Memorandum Decision 20A-DC-412 | August 24, 2020   Page 7 of 25
       since March 22, 2019, and was currently $3776.00 in arrears. Mother testified

       that on September 6, 2019, Father asked if he could take A.M. to dinner with

       his mother during Mother’s parenting time but, in fact, took her to a concert

       instead. Mother also testified regarding Father’s interactions with A.M.’s

       therapists, first Joyce and then Maria Cottone. After Father met with Joyce’s

       supervisor, A.M. was removed from school-based therapy with Joyce, which

       made scheduling and attending appointments more difficult for Mother, who

       testified that she now usually has to remove A.M. from school to attend. As for

       Cottone, Mother indicated that Father began calling her in October of 2019 and

       that she was concerned that his contact will lead to Cottone’s removal as

       A.M.’s therapist. According to Mother, in video calls during Father’s parenting

       time, she had seen A.M. and Father “laying on the couch together and

       watching movies and snuggling [with A.M.] on his lap.” Tr. Vol. II p. 152.

       Mother testified that A.M. had had two bedwetting incidents since June of 2019

       and one incident where she had stood in the hallway and urinated on the floor,

       fully awake. When asked if any changes in his behavior to A.M. would be

       appropriate given his conviction for a sex crime against her half-sister, Father

       indicated that “[n]o changes would be appropriate.” Tr. Vol. II p. 189.

[10]   On December 3, 2019, the trial court issued its order on pending matters, which

       order provided, in part, as follows:

                                        CONTEMPT MOTIONS
                     27. Father is in contempt for failing to pay child support
               as ordered.




       Court of Appeals of Indiana | Memorandum Decision 20A-DC-412 | August 24, 2020   Page 8 of 25
               28. Father paid no child support for the support of the
        parties’ daughter from March 22, 2019 through October 1, 2019
        and since March 22, 2019, Father has paid $230.00 in support.
              29. Father’s current support arrearage has increased to
        $3,776.00 as of November 16, 2019.
               30. Father, by choice, remains self-employed in the
        resale business of buying and reselling used items at a mark-up
        despite Father having two bachelor’s degrees.
              31. The Court admonishes Father to begin making child
        support payments as ordered and attorney fees are addressed
        below.
               32. At the time of the August 19, 2019 emergency
        hearing, Father still had yet to notify Mother that he had been
        arrested with the minor child despite the requirement in the Final
        Order that he communicate with Mother regarding his pending
        criminal case.
               33. The Court finds Father in contempt for failing to
        notify Mother that he had been arrested during his parenting
        time, failing to first offer Mother time with the Child instead of a
        family friend while he was in jail, and failing to provide Mother
        with contact information regarding the Child’s whereabouts
        while he was in jail.
                34. The Court admonishes Father and orders Father to
        strictly comply with the prior orders regarding notifying Mother
        of his pending criminal matters and attorney fee sanctions are
        addressed below.
              35. There was no evidence before the Court that
        Mother interfered with Father’s appointment with the Child’s
        therapist.
               36. The evidence before the Court is that Father was
        able to have an appointment with the Child’s therapist [Cottone]
        on November 13, 2019 and Father spoke with [Cottone] directly
        about the Child’s therapy.



Court of Appeals of Indiana | Memorandum Decision 20A-DC-412 | August 24, 2020   Page 9 of 25
              37. There was no evidence that Mother cancelled said
        appointment and rescheduled it for November 15, 2019.
               38. The evidence also supports that Mother executed a
        release for Father to obtain the Child’s therapy records, provided
        Father the name of the Child’s therapist and that Mother has
        kept Father informed of the Child’s appointments.
                 39.     The Court does not find Mother in contempt.
                        PARENTING TIME MODIFICATION
               40. The parties currently share legal custody with the
        exception that Mother was awarded sole legal custody with
        respect to healthcare decisions, including therapy and counseling
        decisions; and Mother having primary physical custody with
        Father exercising parenting time on alternating weekends, one
        additional weekend every 60 days, holiday parenting time, and
        extended summer parenting time with one extra week during the
        summer.
               41. Mother requested the Court order Father’s
        parenting time with the Child supervised by an agency at
        Father’s expense until Father completes a psychosexual
        education program as recommended by Ron Smith; or in the
        alternative, the Court order Father to exercise regular minimum
        Guideline parenting with no extra weekend and no extra time
        during the summer.
                 42.     Ind. Code §31-17-4-2 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.
              43. The Indiana Court of Appeals: “has affirmed the
        suspension of visitation ‘at this time’ where the father requesting


Court of Appeals of Indiana | Memorandum Decision 20A-DC-412 | August 24, 2020   Page 10 of 25
        visits had sexually molested another of his children, the abuse
        had been substantiated, the father had threatened the oldest child
        with a loaded gun, and he showed no remorse and refused
        counseling sessions.” See Duncan v. Duncan, 843 N.E.2nd 966,
        972 (Ind. Ct. App. 2006).
               44. The Indiana Court of Appeals has held that “unlike
        a modification of physical custody, a modification of parenting
        time does not require a showing of a substantial change”. See
        Miller v. Carpenter, 965 N.E.2d 104, 110 (Ind. Ct. App. 2012).
               45. In the instant case, there are several similar facts as
        to those in Duncan, mainly there is no dispute Father committed
        a sex crime against his step-daughter with whom he was residing,
        Father has not received specified counseling for the same, and
        Father’s remorse is lacking.
               46. The Court finds it concerning that, in light of the
        Final Order restricting Father’s contact with [A.M.]’s mental
        health providers, Father continues to demand in person,
        personalized sessions with [A.M.]’s current therapist.
              47. The Court finds it equally concerning that Father
        never notified Mother of his arrest on July 11, 2019 and then put
        [A.M.] in the care of a third party (who refused to release [A.M.]
        to Mother) .
              48. Even after Mother filed her Emergency Motion to
        Modify, Father continued in a pattern of evasiveness when
        Father admittedly lied to Mother about taking [A.M.] to a
        concert for preteen girls.
              49. Father acknowledged he told Mother his family was
        in town and had requested additional parenting time so [A.M.]
        could go out to dinner with her paternal grandmother.
              50. Father acknowledges that at the time he made this
        request, he had no intent of taking [A.M.] to dinner with his
        family, but instead had plans to take [A.M.] to the Jojo Siwa (a
        preteen female musical artist) concert without telling Mother in
        advance.


Court of Appeals of Indiana | Memorandum Decision 20A-DC-412 | August 24, 2020   Page 11 of 25
               51. Father continues to demand Mother provide him
        private phone calls with [A.M.] and this is a continued source of
        dispute for the parties. Father places demands on Mother to
        notify him of all happenings in [A.M.]’s life, yet Father does not
        adhere to the same rules for himself when it comes to notifying
        Mother of important information regarding [A.M.].
              53. Given Father’s criminal conviction for
        inappropriate sexual acts with a minor, this behavior is deeply
        concerning to the Court.
               54. The Court finds that Father’s parenting time shall
        be restricted[,] and Father shall exercise supervised parenting
        time at an agency once per week for a period of up to three hours
        at Father’s expense.
              55. The parties, if unable to coordinate the same
        amongst themselves, shall coordinate the supervised parenting
        time with the PC.
                56. Father’s parenting time shall continue to be
        supervised until such time that Father has successfully completed
        a psychosexual educational program as recommended by Ron
        Smith by a provider specializing in the same. Ron Smith’s report
        shall be provided to the provider in advance to ensure the topics
        listed in his report are covered.
              57. Father may petition the Court to amend the
        supervised parenting time upon completion of the educational
        program above.
                                   ANCILLARY ISSUES
               58. The Final Order prohibiting Father from role
        playing with the Child and prohibiting him from sharing a bed
        with the Child remain in full force and effect.
               59. Father has shown a pattern of deliberately pushing
        the envelope regarding Court orders, including a prior incident
        where Father was found in contempt for his excessive farewells
        with the Child against the recommendation of the PC approved
        by and made an Order of this Court.


Court of Appeals of Indiana | Memorandum Decision 20A-DC-412 | August 24, 2020   Page 12 of 25
               60. Father is enjoined from the continued scheduling of
        in person appointments with [A.M.]’s therapist. Such continued
        contact with [A.M.]’s therapist frustrates the Court’s order
        enjoining Father from excessive contact with any of [A.M.]’s
        providers.
              61. The Court clarifies the June 25, 2019 Final Order
        and specifies that Father may contact [A.M.]’s therapist no more
        than once per month in writing at his own cost, if any.
              62. The Court cautions Father with regard to the
        frequency, duration and type of contact with [A.M.]’s providers
        moving forward.
             63.         Father is not entitled to private phone calls with
        [A.M.].
                                     ATTORNEY FEES
               64. The Court finds that Mother has incurred attorney
        fees due in large part to Father’s arrest on July 11, 2019 and his
        behavior thereafter including several instances of being dishonest
        with Mother about [A.M.]’s whereabouts and his failure to pay
        child support.
               65. Additionally, due to the findings of contempt
        against Father herein, the Court orders Father to pay $2,000.00
        toward Mother’s attorney fees within sixty (60) days of this
        order, in addition to the fees already ordered against Father on
        June 25, 2019.
               66. Should Father fail to pay the same, that amount
        shall be reduced to judgment against Father and in favor of
        Mother, including statutory interest.
Appellant’s App. Vol. II pp. 80–85.


                           Discussion and Decision




Court of Appeals of Indiana | Memorandum Decision 20A-DC-412 | August 24, 2020   Page 13 of 25
                                       I. Terms of Visitation
[11]   Father alleges that the trial court abused its discretion in limiting him to

       supervised visitation with A.M., ordering that he have no private telephone

       calls with her, and imposing specific restrictions on his access to A.M.’s

       therapist. “Indiana has long recognized that the rights of parents to visit their

       children is a precious privilege that should be enjoyed by noncustodial parents.”

       Duncan, 843 N.E.2d at 969 (citing Lasater v. Lasater, 809 N.E.2d 380, 400–01

       (Ind. Ct. App. 2004)), trans. denied. “As a result a noncustodial parent is

       generally entitled to reasonable visitation rights.” Id. (citing Ind. Code § 31-17-

       4-1). “A court may modify an order granting or denying visitation rights

       whenever this modification would serve the best interests of the child.” Id.

       (citing Ind. Code § 31-17-4-2).


               When reviewing the trial court’s resolution of the visitation issue,
               we reverse only when the trial court manifestly abused its
               discretion. In re Marriage of Julien (1979), Ind. App., 397 N.E.2d
               651. If the record reveals a rational basis supporting the trial
               court’s determination, no abuse of discretion occurred. Carter v.
               Dec (1985), Ind. App., 480 N.E.2d 564. We will not reweigh
               evidence or reassess the credibility of witnesses. Id.
       Pennington v. Pennington, 596 N.E.2d 305, 306 (Ind. Ct. App. 1992), trans. denied.

       As the Indiana Supreme Court has noted,

               The disposition of children presents a delicate and perplexing
               task which has taxed the wisdom of judges since the day of
               Solomon. The trial court is better able to arrive at a sound and
               safe conclusion than can a court of review which has only the
               cold printed or typed record before it. [E]ven where evidentiary
               facts are admitted different inferences and conclusions may be


       Court of Appeals of Indiana | Memorandum Decision 20A-DC-412 | August 24, 2020   Page 14 of 25
               drawn therefrom, and conclusions and judgments may hang
               upon intangibles and impressions not cognizable to a court of
               review.
       Gilchrist v. Gilchrist, 255 Ind. 367, 372, 75 N.E.2d 417, 419 (1947).

[12]   Indiana Code section 31-17-4-2 provides that:

               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.
       Although the statute uses the word “might,” Indiana Courts have long

       interpreted it to require evidence that parenting time “‘would’ (not ‘might’)

       endanger or impair the physical or mental health of the child.” Perkinson v.

       Perkinson, 989 N.E.2d 758, 763 (Ind. 2013) (quoting Stewart v. Stewart, 521

       N.E.2d 956, 960 n.3 (Ind. Ct. App. 1988), trans. denied). However, “unlike a

       modification of physical custody, a modification of parenting time does not

       require a showing of a substantial change.” Miller v. Carpenter, 965 N.E.2d 104,

       110 (Ind. Ct. App. 2012).

                                      A. Supervised Visitation
[13]   The trial court ordered that Father’s visitation with A.M. would be limited to

       supervised parenting time at an agency once a week for up to three hours at

       Father’s expense. An order of supervised parenting time constitutes a

       restriction of parenting time pursuant to Indiana Code section 31-17-4-1.

       Hatmaker v. Hatmaker, 998 N.E.2d 758, 761 (Ind. Ct. App. 2013). A party who

       seeks to restrict a parent’s visitation rights bears the burden of presenting


       Court of Appeals of Indiana | Memorandum Decision 20A-DC-412 | August 24, 2020   Page 15 of 25
       evidence justifying such a restriction. Farrell v. Littell, 790 N.E.2d 612, 616 (Ind.

       Ct. App. 2003). The burden of proof is by a preponderance of the evidence. In

       re Paternity of W.C., 952 N.E.2d 810, 816 (Ind. Ct. App. 2011).

[14]   The trial court ordered that Father’s visitation rights be restricted based on the

       following findings: (1) Father committed a sex crime against his step-daughter,

       has not undergone targeted therapy related to that crime, and lacks remorse; (2)

       Father failed to notify Mother of his July 11, 2019, arrest and placed A.M. in

       the care of a third party; and (3) Father admittedly lied to Mother about taking

       A.M. to a concert instead of to dinner with his mother. We unsurprisingly

       consider the first of these justifications to be the most compelling. To date,

       Father has consistently maintained that his prior sexual battery does not need to

       be further addressed and has not participated in any targeted therapy.

       According to Father, no changes in his behavior regarding A.M. need to be

       made, despite evidence that he is in denial and engaging in grooming behavior.

       Father’s lack of self-awareness and refusal to accept responsibility for his

       previous sexual battery are demonstrated by the fact that it was deemed

       necessary to not only order him not to cuddle with A.M., share a bed with her,

       or engage in boyfriend-girlfriend role-playing, but to reiterate in a second order

       not to do those things. Father’s refusal to appropriately address concerns about

       his sexual battery of A.M.’s half-sister, along with his tendency to lie and

       violate court orders, fully justify an order limiting him to supervised visitation

       for the time being.




       Court of Appeals of Indiana | Memorandum Decision 20A-DC-412 | August 24, 2020   Page 16 of 25
[15]   Father draws our attention to evidence that he does not pose a threat to A.M.

       and suggests that our disposition in K.B. v. S.B., 415 N.E.2d 749 (Ind. Ct. App.

       1981), supports a reversal in this case. To the extent that Father relies on some

       evidence from his therapist and Smith that he does not pose a threat to A.M.,

       he is asking us to reweigh the evidence, which we will not do. See, e.g.,

       Pennington, 596 N.E.2d at 306. As for K.B., it is true that it is a case in which

       we affirmed the trial court’s grant of visitation to the father despite conflicting

       evidence that he had improperly fondled his daughter. K.B., 415 N.E.2d at 751.

       K.B., however, does not help Father, as it stands for nothing more than the

       proposition that we will not second-guess a trial court’s determination in the

       face of conflicting evidence. Id. at 756. Contrary to Father’s suggestion, K.B.

       most certainly does not support the notion that unsupervised visitation should

       always be granted whenever there is conflicting evidence of improper sexual

       behavior.

                       B. Prohibition of Private Telephone Calls
[16]   Father contends that the trial court abused its discretion in ordering that he was

       not entitled to have private telephone calls with A.M. The Indiana Parenting

       Time Guidelines (“the Guidelines”) outline rules for communication between a

       parent and a child and provide as follows:

               A child and a parent shall be entitled to private communications
               without interference from the other parent. A child shall never
               be used by one parent to spy or report on the other. Each parent
               shall encourage the child to respect and love the other parent.
               Parents shall at all times avoid speaking negatively about each



       Court of Appeals of Indiana | Memorandum Decision 20A-DC-412 | August 24, 2020   Page 17 of 25
               other in or near the presence of the child, and they shall firmly
               discourage such conduct by relatives or friends.
       Ind. Parenting Time Guideline I(A)(2).

[17]   Section I(A)(3) of the Guidelines addresses telephonic communications in

       particular and provides as follows:

               Both parents shall have reasonable phone access to their child.
               Telephone communication with the child by either parent to the
               residence where the child is located shall be conducted at
               reasonable hours, shall be of reasonable duration, and at
               reasonable intervals, without interference from the other parent.
               If a parent uses an answering machine, voice mail or a pager,
               messages left for a child shall be promptly communicated to the
               child and the call returned.
[18]   So, while it is true that the Guidelines generally provide that telephone calls will

       be private, they provide for deviations when warranted:

               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 safely, 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.
       Ind. Parenting Time G. Preamble (C)(1) (emphasis added).

[19]   We cannot say that the trial court abused its discretion in ordering that Father is

       not entitled to private telephone calls with A.M. As mentioned, there are

       indications in the record that Father is grooming A.M. for sexual abuse and

       Court of Appeals of Indiana | Memorandum Decision 20A-DC-412 | August 24, 2020   Page 18 of 25
       telling her not to talk in therapy, things that could, to say the least, endanger

       A.M.’s safety or significantly impair her emotional development. While Father

       would not be able to do such things in supervised visitation, he most certainly

       could in a private telephone call. Under the circumstances, Father has failed to

       establish an abuse of discretion in this regard.

                               II. Access to A.M.’s Therapist
[20]   Father contends that the trial court abused its discretion in limiting his access to

       Cottone to once-a-month contact in writing. As an initial matter, Father seems

       to argue that this restriction is tantamount to a complete denial of access to

       A.M.’s medical records as they relate to her therapy and cites to law related to

       access to such records. While it is generally true that “[a] custodial parent and

       a noncustodial parent of a child have equal access to the child’s mental health

       records[,]” Ind. Code § 16-32-2-9(b), nothing in the trial court’s order even

       suggests that it is restricting Father’s access to A.M.’s mental-health records.

       The statutory and Guidelines provisions relied upon by Father have no bearing

       on this case.

[21]   What we are left with, then, is the trial court’s June 25, 2019, order that “Father

       may not interfere with [A.M.]’s counseling, including making excessive contact

       with any provider.” Appellant’s App. Vol. II p. 33. As mentioned, Father did

       not appeal from this order, so he is now limited to arguing that the trial court

       abused its discretion in applying it in its December 3, 2019, order. Father

       initially gave his consent to therapy for A.M. in or around August of 2018

       before withdrawing it, forcing Mother to obtain a court order allowing therapy


       Court of Appeals of Indiana | Memorandum Decision 20A-DC-412 | August 24, 2020   Page 19 of 25
       to continue with Joyce. In the spring of 2019, however, Father demanded a

       meeting with Joyce’s supervisor without informing Mother, after which school-

       based therapy with Joyce was terminated, which has caused Mother great

       inconvenience. Cottone began treating A.M. later in 2019, and Father began

       calling her in October of 2019 and met with her alone on November 13, 2019,

       causing Mother to indicate that she was concerned Father was attempting to

       have therapy with Cottone terminated.

[22]   The trial court interpreted Father’s actions as interference with A.M.’s therapy

       and excessive contact with Cottone, and we cannot say that its interpretation is

       unreasonable. Since initially giving and then withdrawing consent to A.M.’s

       therapy, Father has shown a pattern of interference with and resistance to it, up

       to and including causing (it would seem) therapy with Joyce to be terminated.

       Mother initially allowed Father to select a replacement for Joyce, which Father

       apparently never did. More recently, Father has sought in-person contact with

       Cottone, despite having unrestricted access to A.M.’s records and being fully

       informed of upcoming appointments. In our view, Father’s interference with

       Cottone’s treatment of A.M. fully justifies Mother’s concerns that he will

       attempt to have Cottone removed as well. Father’s history and recent actions

       support the trial court’s findings that he was interfering with A.M.’s therapy

       and making excessive contact with Cottone, in violation of the June 25, 2019,

       order. Father has not established an abuse of discretion in this regard.




       Court of Appeals of Indiana | Memorandum Decision 20A-DC-412 | August 24, 2020   Page 20 of 25
                                                 III. Contempt
[23]   Father contends that the trial court abused its discretion in finding him in

       contempt of court for failing to inform Mother when he was arrested on July

       11, 2019, and for failing to offer her additional parenting time after his arrest.1

                The determination of whether a party is in contempt of court is a
                matter within the trial court’s discretion and the trial court’s
                decision will only be reversed for an abuse of that discretion.
                Williamson v. Creamer, 722 N.E.2d 863, 865 (Ind. Ct. App. 2000).
                A court has abused its discretion when its decision is against the
                logic and effect of the facts and circumstances before the court or
                is contrary to law. Id. When reviewing a contempt order, we
                will neither reweigh the evidence nor judge the credibility of
                witnesses. Id. Our review is limited to considering the evidence
                and reasonable inferences drawn therefrom that support the trial
                court’s judgment. Id. Unless after a review of the entire record
                we have a firm and definite belief a mistake has been made by the
                trial court, the trial court’s judgment will be affirmed. Id.
                Furthermore, this court will only reverse the trial court’s
                contempt judgment if there is no evidence to support it. Id.
       Norris v. Pethe, 833 N.E.2d 1024, 1029 (Ind. Ct. App. 2005). In order to be

       punished for contempt of a trial court’s order, there must be an order

       commanding the accused to do or refrain from doing something, and the trial

       court must find that the party violated that order with willful disobedience. Id.

       Father bears the burden of showing that his violations of the trial court’s orders

       were not willful. See id.




       1
         Father does not contest the trial court’s conclusion that he was in contempt of court for failing to pay child
       support.



       Court of Appeals of Indiana | Memorandum Decision 20A-DC-412 | August 24, 2020                     Page 21 of 25
                            A. Failure to Inform Mother of Arrest
[24]   The trial court found Father to be in contempt of court for failing to notify

       Mother of his July 11, 2019, arrest. The trial court’s June 25, 2019, order,

       however, provided that “Father shall provide Mother […] notice of any changes

       regarding the pending criminal case within 24 hours of any change[,]” Appellant’s

       App. Vol. II p. 35 (emphasis added), and the only criminal case that we are

       certain was pending against Father on June 25 was the charge of failure to

       register as a sex offender brought in cause number 60C01-1809-F6-0548, for

       which he had been arrested in October of 2018. In light of the fact that the

       order refers to “the pending criminal case[,]” we conclude that the only

       reasonable reading of this provision is that Father was obligated to inform

       Mother of developments in cause number 60C01-1809-F6-548 but not any

       others.

[25]   Consequently, pursuant to the June 25 order’s plain language, Father was under

       no obligation to notify Mother of his July 11, 2019, arrest in cause number

       60C01-1906-F6-0407.2 The trial court, we suppose, could have ordered Father

       to notify Mother of arrests or developments in any new criminal cases, but it

       did not. The trial court consequently abused its discretion in finding Father to




       2
          It is undisputed that Father did not know about cause number 60C01-1906-F6-0407 until he was arrested
       on July 11, 2019. Moreover, while the cause number of the second charge indicates that it was filed in June
       of 2019, the record does not indicate that it was filed before June 25. Even if it had been, we do not think the
       trial court’s order could be reasonably read to require Father to inform Mother of developments in criminal
       cases he did not even know existed. Finally, even if Father had been obligated to inform Mother of his July
       11, 2019, arrest, the trial court’s order provided that he had twenty-four hours to inform her. Mother,
       however, became aware of the arrest long before that. We are not certain that it would be reasonable to hold
       Father in contempt for failing to inform Mother of his arrest if his window for doing so had yet to close.



       Court of Appeals of Indiana | Memorandum Decision 20A-DC-412 | August 24, 2020                    Page 22 of 25
       be in contempt of court for failing to notify Mother of his arrest on a new

       charge on July 11, 2019.

                    B. Failure to Offer Parenting Time to Mother
[26]   Father contends that the trial court abused its discretion in finding him in

       contempt of court for failing to offer Mother additional parenting time

       following his July 11, 2019, arrest, having Bricker take A.M. instead. The trial

       court’s June 25, 2019, order noted that an earlier order stated that “all other

       ancillary provisions of the [Guidelines] shall apply” and reiterated that “[t]he

       parties shall adhere to the [Guidelines] for summer parenting time[.]”

       Appellant’s App. Vol. II pp. 24, 35. The Guidelines provide, in part, that

               [w]hen it becomes necessary that a child be cared for by a person
               other than a parent or a responsible household family member,
               the parent needing the child care shall first offer the other parent
               the opportunity for additional parenting time, if providing the
               child care by the other parent is practical considering the time
               available and the distance between residences.
       Parenting Time G. Section I(C)(3).

[27]   Father argues that it was not practical to offer Mother additional parenting time

       due to the distance involved and the immediacy of his situation, which was that

       he was being arrested. The simple fact is that Father had no way of knowing

       whether it was practical to offer Mother parenting time unless he had actually

       contacted her and offered it to her, which he did not do. Had Father contacted

       Mother, he would have known that she was available and approximately one

       hour and ten to fifteen minutes away in Fishers. Instead, Father seems to have

       gone out of his way to make it difficult for Mother to ascertain A.M.’s


       Court of Appeals of Indiana | Memorandum Decision 20A-DC-412 | August 24, 2020   Page 23 of 25
       whereabouts. Father admitted that he did not call Mother, attempt to notify her

       by other means, or provide authorities with her contact information. Although

       Mother found out that Father had been arrested from his Mother, she had to

       call the jail to find out that Father had left A.M. with Bricker and, even then,

       had to conduct further investigation to learn Bricker’s address. Moreover,

       Father could have asked the authorities in Owen County if it would have been

       possible to delay his formal arrest until Mother could arrive, something which

       had in fact occurred the first time he was arrested in October of 2018. Finally,

       while Father seems to have assumed that he would only be in custody a short

       while, we are not certain that such an assumption is warranted when one gets

       arrested. As it happened, Father was able to make bail, but only with help from

       his mother. Had Father’s mother not been immediately available, or if bail had

       been set higher than it was, Father might have been incarcerated overnight or

       even longer. Under the circumstances, we cannot say that the trial court abused

       its discretion in finding Father in contempt of court for failing to offer Mother

       parenting time when he was arrested on July 11, 2019.

                                           IV. Attorney’s Fees
[28]   Finally, Father argues that the trial court’s award of $2000.00 of attorney’s fees

       should be reduced proportionally in light of the fact that some were improperly

       awarded based on Father’s failure to report his July 11, 2019, arrest to Mother.3




       3
         Father actually argues that fees related to his failure to offer Mother additional parenting time should be
       eliminated also, but we have determined that the trial court properly held him in contempt for that failure.



       Court of Appeals of Indiana | Memorandum Decision 20A-DC-412 | August 24, 2020                    Page 24 of 25
       Mother’s attorney indicated in an affidavit of attorney’s fees that, between July

       11 and August 19, 2019, Mother had accrued $1200.00 in attorney’s fees related

       to Mother’s July 11 emergency motion for modification of custody, request for

       modification of parenting time, and motion for rule to show cause why Father

       should not be held in contempt of court for failing to notify her of his arrest or

       offer her additional parenting time. Also on August 19, 2019, Mother filed her

       second motion for rule to show cause, which was restricted to child support. By

       the hearing on November 18, 2019, Mother was requesting $2000 in attorney’s

       fees, some of which were presumably accrued in further litigating her first

       motion for rule to show cause, and some of which were accrued in litigating her

       second. Based on the record before us, there is no way to determine with any

       degree of certainty how much of the $2000.00 award of attorney’s fees was

       related to Mother’s rejected claim that Father wrongly failed to inform her of

       his July 11, 2019, arrest. Consequently, we remand with instructions to

       determine this amount and reduce the award of attorney’s fees accordingly.

[29]   We affirm the judgment of the trial court in part, reverse in part, and remand

       with instructions.


       Najam, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A-DC-412 | August 24, 2020   Page 25 of 25
