                                                                                    FILED
                                                                                Jul 28 2016, 8:45 am

                                                                                    CLERK
                                                                                Indiana Supreme Court
                                                                                   Court of Appeals
                                                                                     and Tax Court




      ATTORNEYS FOR APPELLANT                                    ATTORNEY FOR APPELLEE
      Bryan L. Ciyou                                             Daniel G. Petrie
      Darlene R. Seymour                                         Henthorn, Harris & Weliever
      Ciyou & Dixon, P.C.                                        Crawfordsville, Indiana
      Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Jessica Robertson,                                         July 28, 2016
      Appellant-Petitioner,                                      Court of Appeals Case No.
                                                                 54A01-1509-DR-1374
              V.                                                 Appeal from the Montgomery
                                                                 Superior Court
      Brian Robertson,                                           The Honorable Heather Dennison,
      Appellee-Respondent.                                       Judge
                                                                 Trial Court Cause No.
                                                                 54D01-0912-DR-517



      Pyle, Judge.




                                        Statement of the Case
[1]   In this child custody case, Jessica Robertson (“Mother”) argues that the trial

      court abused its discretion in modifying custody of the parties’ two young

      children in favor of Brian Robertson (“Father”). On cross-appeal, Father

      Court of Appeals of Indiana | Opinion 54A01-1509-DR-1374| July 28, 2016                           Page 1 of 14
      argues that this Court does not have jurisdiction over the matter because

      Mother failed to timely file her Notice of Appeal. In light of Mother’s attempt

      to perfect a timely appeal and the constitutional dimensions of the parent-child

      relationship, we review Mother’s appeal on the merits. Further, because the

      evidence supports the trial court’s modification of custody in favor of Father,

      we find no abuse of discretion and affirm.


[2]   We affirm.


                                                      Issues
              1. Whether this appeal is reviewable on the merits.

              2. Whether the trial court abused its discretion in modifying
              custody in favor of Father.

                                                      Facts
[3]   Mother and Father’s marriage was dissolved in 2010. At that time, the

      dissolution court granted Mother custody of the parties’ two children, K.R.,

      born in 2006, and C.R., born in 2007. Mother married Damien Terry

      (“Stepfather”) in October 2014. In February 2015, Father filed a petition to

      modify custody and a request for a guardian ad litem (“GAL”). In the petition,

      Father alleged that Stepfather was “a bad influence and example for the

      children.” (App. 23). Specifically, Father alleged that Stepfather “use[d] illegal

      substances and ha[d], at times, been the sole caretaker of the children.” (App.

      23).



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[4]   The trial court appointed a GAL, which filed its report in July 2015. The trial

      court subsequently held a two-day hearing on Father’s petition on August 7 and

      August 12, 2015. Testimony at the hearing revealed that Father was stationed

      in the military at Fort Riley, Kansas. He had requested an early discharge

      because of family issues and expected to be released from his military obligation

      within sixty days. He planned to relocate to Crawfordsville, Indiana, to be

      closer to his children and was seeking employment in the area. He also planned

      to further his education at Ivy Tech. At the time of the hearing, Father spoke

      with the children on the phone two to three times per week and had just spent

      ten days with them.


[5]   Father expressed concern that when he talked to his children on the telephone,

      Stepfather frequently interrupted the conversation and told the children what to

      say. At times, the children told Father that they could not answer his questions

      because Stepfather would be angry. Father also expressed concern that K.R.

      was in the car with Stepfather when Stepfather was arrested for driving while

      suspended. Father was also worried that Stepfather has fallen asleep holding a

      cigarette in his hand. Father testified that he had remained close to Mother’s

      family, and that Mother’s mother (“Grandmother”) and Mother’s sister

      (“Aunt”) both supported his request for custody of the children.


[6]   Grandmother testified that she has observed significant changes in the

      children’s behavior since Mother married Stepfather. Specifically, K.R.

      recently cried and asked Grandmother to call the police so that he would not

      have to return to Mother’s home. Grandmother explained that Mother used to

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      be very attentive to her children but had moved them to “the back burner”

      following her marriage to Stepfather. (Tr. 123). Grandmother opined that it

      was not in the children’s best interests to continue in Mother’s custody.


[7]   Mother’s friends, Adam and Nekisha Shahan (“Adam” and “Nekisha”), who

      also testified at the hearing, noticed that K.R. and C.R. had become lethargic

      and withdrawn. Adam and Nekisha’s children regularly played with K.R. and

      C.R. until Mother married Stepfather. At the time of the hearing, Mother

      regularly denied requests for the children to play together. Adam further

      testified that the children now cowered when he reached out to hug them or pat

      them on the head. He also testified that he attended a family Christmas dinner

      with Mother’s family in 2014. At one point, when K.R. walked past Stepfather

      and said nothing, Stepfather grabbed K.R. by the arm and screamed, “I told

      you it’s not time to open presents yet so go sit down.” (Tr. 84). That same day,

      Stepfather passed out at the dinner table while he was eating and later rested his

      head on a window sill while standing at the sink. Adam also saw Stepfather

      “down on one knee talking to this cat in weird voices, just like, like he was

      having a conversation with it.” (Tr. 85). Nekisha, a registered nurse that

      routinely works with addicts and patients abusing prescription medications,

      believed that Stepfather was abusing controlled substances. She also believed

      that it was not in the children’s best interests to continue in Mother’s custody.


[8]   The GAL testified that Stepfather did not treat the children kindly and had a

      forceful attitude with them. The GAL pointed out that Stepfather had a

      criminal record, was unemployed, and tried to isolate Mother and the children

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       from Mother’s family and friends. The GAL recommended that custody of the

       children be placed with Father because: (1) Mother placed her relationship with

       Stepfather ahead of her relationship with her children; (2) Stepfather was not a

       proper role model; and (3) it was not in the children’s best interests to continue

       in Mother’s custody. The GAL agreed that Stepfather “coming into the picture

       [was] a continuing and substantial change of circumstances.” (Tr. 314).


[9]    During the hearing, Stepfather admitted that he had a criminal history that

       included convictions for burglary, theft, unlawful possession of a syringe,

       possession of a synthetic drug, and driving while suspended. He also admitted

       that he took prescription pain relievers for his back, including hydrocodone,

       percocet, and oxycodone, and neurotonins, including gabapentin, for nerve

       damage in his legs. He admitted that he had hit C.R. for playing at the dinner

       table and that he had driven with K.R. in the car when he knew that his license

       was suspended.


[10]   As part of its consideration of changed circumstances, the trial court

       interviewed K.R. in chambers. However, the interview was not recorded. At

       the end of the two-day hearing, the trial court orally concluded that “based

       upon the evidence that the child[ren]’s welfare . . . is at risk in the continued

       custody of their mother, . . . the children shall be placed immediately in the

       custody of their father until further order of the Court.” (Tr. 322). Because

       Mother had requested special findings pursuant to Indiana Trial Rule 52(A), the

       trial court gave the parties fourteen days to submit their proposed findings.

       That same day, the trial court issued a written provisional order which awarded

       Court of Appeals of Indiana | Opinion 54A01-1509-DR-1374| July 28, 2016    Page 5 of 14
       Father temporary emergency custody until further order of the court and

       ordered the parties to submit proposed findings of fact and conclusions no later

       than August 26, 2015. The trial court also ordered Father to notify the court

       within forty-eight hours of “who shall be named as temporary custodian in case

       Father becomes unable or unwilling to continue as custodian due to his death

       or disability.” (App. 16).


[11]   Two days later, on August 14, 2015, Father filed a motion to appoint Aunt as

       temporary custodian for the children, which the trial court granted. That same

       day, Mother filed an objection to the form of Father’s motion as well as a

       motion to restore primary custody to her should Father leave the area without

       the children. On August 18, the trial court issued an order, which denied

       Mother’s request to restore primary custody to her.


[12]   Both parties filed proposed findings of fact and conclusions on August 26, 2015.

       On September 11, 2015, before the trial court entered a final custody

       modification order, Mother filed a Notice of Appeal, wherein she stated that

       she was appealing the trial court’s: (1) August 12 order regarding temporary

       emergency custody; (2) August 14 order regarding the appointment of a

       temporary custodian; and (3) August 18 order regarding Mother’s objection to

       the form of Father’s motion to appoint a temporary custodian and motion to

       restore physical custody.


[13]   Shortly thereafter, on October 19, Father filed a notice of relocation and a

       motion to terminate the temporary custodian, wherein he explained that he had


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       been honorably discharged from the army and had returned to Indiana where

       he was living with Grandmother. An entry in the Chronological Case

       Summary (“CCS”) reveals that the trial court took no action on the motion

       “due to jurisdiction being with Indiana Court of Appeals.” (App. 13).


[14]   Father also filed in this Court a Motion to Dismiss Mother’s appeal.

       Specifically, Father argued that Mother’s appeal should be dismissed because it

       was not the appeal of a final order. According to Father, the trial court could

       not issue Mother’s requested findings of fact and conclusions until the appeal

       was dismissed. Mother responded that these appealed orders, which modified

       custody “under the guise of being ‘temporary’” and appointed a third party as

       the Children’s guardian, were “de facto if not actual, final custody [o]rders.”

       (Mother’s Response 2). This Court’s motions panel denied Father’s motion to

       dismiss, temporarily stayed the appeal, and ordered the trial court to issue its

       final findings of fact and conclusions on Father’s custody modification petition.


[15]   The trial court issued its final order, which included ten pages of findings of fact

       and conclusions, on January 19, 2016. In the order, the trial court concluded

       that based on the evidence presented at the hearing, modification of custody in

       favor of Father was in the children’s best interests. The court further concluded

       that “there ha[d] been a substantial change to one or more of the statutory

       factors for the Court’s consideration regarding custody such that a modification

       [was] necessary.” (App. 48). According to the trial court’s order:

               Mother ha[d] supplanted the best interests of the children with
               her own desires and her relationship with her now husband.

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               Mother [was] certainly free to choose with whom she want[ed] to
               be in a relationship but when she [did] so at the detriment to the
               children, she [had to] live with the consequences. It [was]
               irrefutable that the children [had] been adversely affected by the
               current circumstances.


       (App. 48).


[16]   In March 2016, Father filed with this Court a second motion to dismiss

       Mother’s appeal and a request for attorney fees. The gravamen of his argument

       was that Mother had failed to file a Notice of Appeal after the trial court had

       issued its final order and that her appeal of the August 2015 orders was an

       impermissible interlocutory appeal that had not been certified. Mother

       responded that Father’s second motion to dismiss was identical to his first

       motion to dismiss, which had been denied. The motions panel denied Father’s

       second motion to dismiss and ordered Father to file his appellate brief within

       thirty days of the date of its order.


[17]   Mother now appeals the trial court’s modification of custody in favor of Father.


                                                    Decision
[18]   Mother argues that the trial court erred in modifying custody in favor of Father.

       On cross-appeal, Father resurrects his motion to dismiss arguments, contending

       that this Court does not have jurisdiction over the matter. Because Father’s

       argument on cross-appeal is potentially dispositive, we address it first.




       Court of Appeals of Indiana | Opinion 54A01-1509-DR-1374| July 28, 2016     Page 8 of 14
       1. Review on the Merits

[19]   On cross-appeal, Father argues that this Court does not have jurisdiction over

       the matter. The gravamen of his argument is that Mother improperly filed a

       Notice of Appeal for the August 2015 interlocutory order and then failed to

       properly file a Notice of Appeal after the trial court issued its “final appealable

       order in the form of the trial court’s findings of fact and conclusions of law.”

       (Father’s Br. 5).


[20]   First, we note that the motions panel previously denied Father’s motions to

       dismiss on the same issues. We are reluctant to overrule orders issued by the

       motions panel unless we have determined that there is clear authority

       establishing that the motions panel erred. Estate of Mayer v. Lax, Inc., 998

       N.E.2d 238, 245 (Ind. Ct. App. 2013), trans. denied. We find no such authority

       in this case. Rather, although cited by neither party, the holding in In re

       Adoption of O.R., 16 N.E.3d 965 (Ind. 2014), is instructive on this issue and

       supports the motions panel’s decisions.


[21]   In O.R., the trial court entered a May 9, 2013, order, which concluded that

       Father’s consent to O.R.’s adoption was not required because Father had failed

       to communicate with and support O.R. The Notice of Appeal was due June

       10, 2013. On June 6, 2013, Father, stating that he was acting on the advice of

       his trial counsel, wrote a letter to the trial court clerk requesting the

       appointment of appellate counsel for the purpose of appealing the May 9 order.

       Father’s counsel did not file a Notice of Appeal. However, on June 19, 2013,

       nine days after the Notice of Appeal was due, trial counsel filed a motion to

       Court of Appeals of Indiana | Opinion 54A01-1509-DR-1374| July 28, 2016     Page 9 of 14
       withdraw. The trial court granted the motion and entered an order appointing

       appellate counsel on July 3. On July 18, Father’s counsel filed an amended

       Notice of Appeal. Counsel argued that Father’s June 6 pro se letter to the trial

       court clerk should be deemed a timely filed Notice of Appeal.


[22]   Although the motions panel granted Father’s petition to accept the amended

       Notice of Appeal, the writing panel of this Court sua sponte dismissed Father’s

       appeal on grounds that it lacked subject matter jurisdiction because Father did

       not timely file his Notice of Appeal. See In re Adoption of O.R., No. 21A01-1307-

       AD-322, 2014 WL 819428 (Ind. Ct. App. Feb. 28, 2014). The Indiana Supreme

       Court granted transfer and concluded that although a party forfeits its right to

       appeal for failing to timely file a Notice of Appeal, this untimely filing is not a

       jurisdictional defect depriving the appellate courts of authority to entertain the

       appeal. O.R., 16 N.E.3d at 971 (citing Ind. Appellate Rule 9(A)). Rather, the

       Indiana Supreme Court explained that “timely filing relates neither to the

       merits of the controversy nor to the competence of the courts on appeal to

       resolve the controversy.” Id. Instead, the timely filing of a Notice of Appeal is

       jurisdictional only in the sense that it is a Rule-required prerequisite to the

       initiation of an appeal in the Court of Appeals. Id.


[23]   The Indiana Supreme Court, therefore, concluded that although Father’s

       untimely filing of his Notice of Appeal resulted in Father losing his right to

       appeal, the question was whether there were “extraordinarily compelling

       reasons” why the appeal should have been restored. Id. This question was

       answered in the affirmative for three reasons. First, the Appellate Rules

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       themselves provide a mechanism allowing the Court to resurrect an otherwise

       forfeited appeal. See App. R. 1 (providing in relevant part that the “Court may,

       upon the motion of a party or the Court’s own motion, permit deviation from

       these Rules”). Id. at 972. Second, Father attempted to perfect a timely appeal

       when he sought appointment of appellate counsel for the purpose of appealing

       the decision and then filed an amended Notice of Appeal, which the motions

       panel accepted as being sufficient. Id. Third, a parent’s interest in the custody

       of his child is a fundamental liberty interest, and the parent-child relationship is

       one of the most valued relationships in our culture. Id.


[24]   We reach the same result in the case before us for the same reasons.

       Specifically, in light of: (1) Appellate Rule 1; (2) Mother’s attempt to perfect a

       timely appeal by filing the September 2015 Notice of Appeal, which the

       motions panel accepted as being sufficient; and (3) the constitutional

       dimensions of the parent-child relationship, we conclude that Mother’s appeal

       also deserves a determination on the merits.


[25]   2. Custody Modification


[26]   Mother argues that the trial court abused its discretion in modifying custody in

       favor of Father.1 A trial court’s custody determination is afforded considerable




       1
        Mother also argues that the trial court erred in: (1) appointing a third-party as temporary custodian; and (2)
       entering a general judgment when special findings were requested by Mother. However, both of these issues
       arise from the August 2015 provisional order. That order was extinguished by the final order issued in
       January 2016. See Mosser v. Mosser, 729 N.E.2d 197, 200 n. 3 (Ind. Ct. App. 2000) (explaining that the
       provisional order merges with and is extinguished by the final order). These issues are therefore moot. See

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       deference on appeal as it is the trial court that sees the parties, observes their

       conduct and demeanor, and hears their testimony. Kondamuri v. Kondamuri,

       852 N.E.2d 939, 945-46 (Ind. Ct. App. 2006). Thus, on review, we will not

       reweigh the evidence, judge the credibility of witnesses, or substitute our

       judgment for that of the trial court. Id. at 946. We will reverse the trial court’s

       custody determination only if it is clearly against the logic and effect of the facts

       and circumstances or the reasonable inferences drawn therefrom. Id.


[27]   Where, as here, the trial court issued findings of fact and conclusions at the

       request of one of the parties, we apply a two-tiered standard of review. Maddux

       v. Maddux, 40 N.E.3d 971, 974 (Ind. Ct. App. 2015). First, we determine

       whether the evidence supports the findings, and second, whether the findings

       support the judgment. Id. The trial court’s findings are controlling unless the

       record includes no facts to support them either directly or by inference. Id.

       Legal conclusions, however, are reviewed de novo. Id. at 975. We set aside a

       trial court’s judgment only if it is clearly erroneous. Id. at 974. “Clear error

       occurs when our review of the evidence most favorable to the judgment leaves

       us firmly convinced that a mistake has been made.” Id. at 974-75.


[28]   The trial court may modify a child custody order when: “(1) the modification is

       in the best interests of the child; and (2) there is a substantial change in one or

       more of the factors that the court may consider under section 8 and, if




       Francies v. Francies, 759 N.E.2d 1106, 1110-11 (Ind. Ct App. 2001) (explaining that final custody
       determination renders provisional custody determination moot), reh’g denied, trans. denied.

       Court of Appeals of Indiana | Opinion 54A01-1509-DR-1374| July 28, 2016                             Page 12 of 14
       applicable, section 8.5 of this chapter.” IND. CODE § 31-17-2-21. The trial court

       is also required to consider the factors of section 8, which include: (1) the

       child’s age and sex; (2) the wishes of the parents; (3) the child’s wishes; (4) the

       relationship the child has with his or her parents, siblings, and others; (5) the

       child’s adjustment to home, school, and community; (6) the mental and

       physical health of all involved; (7) any evidence of domestic or family violence;

       and (8) any evidence that the child has been cared for by a defacto custodian.

       I.C. § 31-17-2-21; I.C. § 31-17-2-8(1)-(8).


[29]   Here, Mother contends we “should reverse the trial court’s order modifying

       custody to Father as there is no evidence in the Record to show a substantial

       change in circumstances relating to the Children.” (Mother’s Br. 17).

       However, our review of the evidence reveals that the children’s relationships

       with family and friends have changed since Mother married Stepfather.

       Specifically, the formerly carefree and talkative children have become

       withdrawn and lethargic. They are no longer allowed to spend as much time as

       they previously did with family and friends, and when the children do see

       friends, they cower when the friends attempt to hug them. In addition, Mother

       has been less attentive to the children since she married Stepfather.


[30]   The evidence further reveals that Stepfather has shown signs of abusing

       prescription medication for back pain and nerve damage. At a family event, he

       passed out mid-bite at the dinner table and exhibited odd behavior by talking to

       a cat. Another time, he fell asleep while smoking a cigarette. Stepfather also

       slapped C.H. for laughing at the dinner table and was arrested for driving while

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       suspended when K.R. was in the car. In addition, the trial court met in

       chambers with K.R., who had previously asked Grandmother to call the police

       so that he would not have to return to Mother’s home.


[31]   This evidence supports the trial court’s conclusion that there has been a

       substantial change in circumstances relating to the children and that

       modification of custody in favor of Father is in their best interests. The trial

       court did not abuse its discretion in modifying custody in favor of Father.


[32]   Affirmed.


       Kirsch, J., and Riley, J., concur.




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