In re the Paternity of K.W. (Minor Child): K.P. v. W.W. (mem. dec.) ( 2018 )

MEMORANDUM DECISION FILED
May 03 2018, 5:53 am
Pursuant to Ind. Appellate Rule 65(D), CLERK
this Memorandum Decision shall not be Indiana Supreme Court
Court of Appeals
regarded as precedent or cited before any and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE
Holly J. Wanzer Amy O. Carson
Nicole Makris MASSILLAMANY JETER & CARSON
WANZER EDWARDS, PC LLP
Indianapolis, Indiana Fishers, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In re the Paternity of K.W. May 3, 2018
(Minor Child): Court of Appeals Case No.
49A02-1711-JP-2639
Appeal from the Marion Superior
K.P., Court
Appellant-Respondent, The Honorable James B. Osborn,
Judge
v.
Trial Court Cause No.
49D14-1701-JP-1552
W.W.,
Appellee-Petitioner.
Bailey, Judge.
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Case Summary
[1] K.P. (“Mother”) appeals an order placing eight-year-old K.W. in the physical
custody of W.W. (“Father”). We address a single, consolidated issue for
review: whether the custody order was entered without affording Mother due
process. We reverse and remand for further proceedings.
Facts and Procedural History
[2] On October 14, 2009, K.W. was born out-of-wedlock to Mother and Father.
Mother and Father had long been involved in an on-and-off romantic
relationship. Their eldest child, W.T.W., was ten years old when K.W. was
born.1 Over the years, Father and Mother maintained separate homes in
Indianapolis, and their romantic relationship continued to be on-and-off.
Father sometimes had an access code or key to Mother’s residence and stayed
there. Father also purchased a residence in Ohio, where he has full-time
employment.
[3] When W.T.W. was a high school sophomore, he decided that he wanted to
reside exclusively with Father in Ohio. Father obtained custody of W.T.W.
through legal proceedings in Ohio. In 2013 or 2014, “when W.T.W. came to
1
W.T.W. is now emancipated and living in Ohio. K.W. and W.T.W. also have a half-sibling who is a few
years older than K.W. and is Father’s child from another relationship.
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live with Father,” Mother’s and Father’s romantic relationship ended. (Tr. Vol.
I, pg. 114.) K.W. remained with Mother.
[4] On January 10, 2017, Father filed a Verified Emergency Petition Regarding
Denial of Parenting Time and Motion to Establish Custody, Parenting Time
and Child Support. Father sought sole physical custody of K.W. and planned
to move her to Ohio and enroll her in a private parochial school there. The
parties reached an interim agreement permitting Father to exercise significant,
almost half-time, overnights with K.W.
[5] The trial court conducted hearings on October 10 and October 20, 2017. The
parties stipulated to the amount of time to be allotted for the presentation of
evidence. Three minutes before his time expired, Father was called as a
rebuttal witness and proffered Exhibit 26 – consisting of 202 pages purportedly
depicting text messages between the parties. The trial court excluded this
proffered exhibit for lack of foundation. However, after the hearing was
adjourned on October 20, 2017, the trial court entered an Admission Order of
the same date. The order reversed the trial court’s exclusion of Father’s Exhibit
26.
[6] Four days later, on October 24, 2017, the trial court issued an order providing
in relevant part:
It is in the best interests of the Child that Father and Mother
share joint legal custody of the Child with Father exercising
primary physical custody. If there is an impasse on a decision,
Father shall make the final determination.
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(Appealed Order at 1.) The trial court, which had indicated by its commentary
and exclusion of certain evidence that it was making an initial custody
determination based only upon best interests of the child, did not enter findings
related to a change in circumstances to support custody modification. Mother
now appeals.
Discussion and Decision
[7] Mother alleges that she was denied due process. She argues that the trial court
failed to enter adequate findings based upon the appropriate legal standard for
making the custody determination and that the trial court’s sua sponte post-trial
admission of evidence deprived her of any opportunity to challenge the
belatedly-admitted evidence.
[8] Procedural due process must be provided to protect the substantive rights of the
parties in child custody proceedings, and an opportunity to be heard on veracity
and probity of that considered by the trial court is essential before a parent can
be deprived of custody. Jendreas v. Jendreas, 664 N.E.2d 367, 370 (Ind. Ct. App.
1996) (citing Van Etta v. Van Etta, 583 N.E.2d 767, 768 (Ind. Ct. App. 1991),
trans. denied. Also, the relevant statutes contemplate that a parent will not be
deprived of custody without an evidentiary hearing to determine whether there
has been a substantial change in one or more of the factors relevant to the
child’s best interests and whether modification would in fact be in the child’s
best interests. In re Paternity of R.A.F., 766 N.E.2d 718, 726 (Ind. Ct. App.
2002).
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[9] Indiana Code Section 31-14-13-2 provides that the court shall make an initial
custody determination in a paternity case by looking at all relevant factors,
including the factors listed in subsections (1) through (8) of the statute, to
determine the best interests of the child. Those factors are:
(1) The age and sex of the child.
(2) The wishes of the child’s 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 parents;
(B) the child’s siblings; and
(C) any other person who may significantly affect the child’s
best interest.
(5) The child’s adjustment to home, school and 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[.]
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[10] Indiana Code Section 31-14-13-6 prescribes a stricter standard for modification
of a child custody order in a paternity action. A custody order may be modified
only if it is in the best interests of the child and there is a “substantial change in
one (1) or more of the factors that the court may consider under [Ind. Code §
31-14-13-2 or 31-14-13-2.5]…” Ind. Code § 31-14-13-6.
[11] In an initial custody determination, there is no presumption in favor of either
parent and the trial court’s determination is to be based upon the best interests
of the child. See in re Paternity of Winkler, 725 N.E.2d 124, 127 (Ind. Ct. App.
2000). However, to obtain a modification of custody, the burden is on the
petitioner to demonstrate a substantial change in circumstances. Id. The
stricter rationale is required because permanence and stability are deemed
crucial for the wellbeing and happiness of the child. Id.
[12] In determining whether an initial custody determination standard or
modification standard is appropriate, we look to the unique facts of the case.
Id. In Winkler, the father acquiesced to Mother having custody of the child for
ten years and the mother had custody by operation of law because the child was
born out of wedlock. See id. (citing Ind. Code § 31-14-13-1, which provides that
“[a] biological mother of a child born out of wedlock has sole legal custody of
the child, … unless a statute or court order provides otherwise[.]”). In those
circumstances, we found the more stringent standard for modification of
custody to be applicable despite the lack of an initial court determination. See
id. at 128.
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[13] Here, there has not been a prior court order concerning K.W.’s custody.
Mother had custody of K.W. by operation of law and Father acquiesced to
Mother’s physical custody of K.W. for seven years before he filed his petition.
In Winkler, we recognized that “the same concerns about stability and
continuity” arose in the context of a long-standing custody arrangement even
absent an “initial custody determination” by a court. Id. The Winkler Court
held: “after a long acquiescence by a father in a paternity context, a trial court
may not send a child to live with the other parent unless there is a showing
pursuant to Ind. Code § 31-14-13-6.” Id. Although we recognize that Father’s
acquiescence here is for a lesser term of years than was the father’s in Winkler, it
is nonetheless a long acquiescence and Mother was deprived of custody she had
long exercised. The trial court was obliged to go beyond a best interests
inquiry, i.e., the court should have allowed relevant evidence to support
consideration of whether there was a substantial change in one or more of the
statutory factors.
[14] Also, Mother claims that she was afforded no meaningful opportunity to be
heard when the trial court made a sua sponte post-hearing decision to admit
Father’s Exhibit 26. On the final hearing day, Father brought to court a
compilation of 202 pages purportedly depicting text messages between the
parents. During cross-examination of Mother, Father’s counsel asked Mother
to recite her cellular telephone number and Mother did so. Father’s counsel
sought to admit the exhibit during Mother’s testimony but, after objection from
Mother’s counsel, indicated that the exhibit would be proffered during Father’s
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rebuttal testimony. At some point, the hearing was adjourned for five minutes
to permit Mother to review the 202 pages.
[15] Father was called as a rebuttal witness and the trial court cautioned that he had
three minutes remaining to present evidence. Father testified that he had
printed out texts that had been “on his current phone” using an application
called WhatsApp. (Tr. Vol. II, pg. 77.) Father was unable to provide detail
about the application; he did not testify to specific dates covered by Exhibit 26;
and he did not establish the cellular number used by himself or Mother during
the dates appearing on Exhibit 26. The trial court excluded the proffered
exhibit because of lack of foundation to support its admission.
[16] The trial court’s post-hearing order indicated that, upon review of the authority
of In re Paternity of B.B., 1 N.E.3d 151 (Ind. Ct. App. 2013), the trial court had
found Exhibit 26 to be admissible. There, a panel of this Court discussed
admissibility of transcribed text messages between parents:
When the substance of a text message is offered for an
evidentiary purpose, the text message must be separately
authenticated pursuant to Ind. Evidence Rule 901(a). Hape v.
State, 903 N.E.2d 977, 990 (Ind. Ct. App. 2009), trans. denied.
Rule 901 provides that “[t]he requirement of authentication or
identification as a condition precedent to admissibility is satisfied
by evidence sufficient to support a finding that the matter in
question is what its proponent claims.” Absolute proof of
authenticity is not required. Fry v. State, 885 N.E.2d 742, 748
(Ind. Ct. App. 2008), trans. denied. When evidence establishes a
reasonable probability that an item is what it is claimed to be, the
item is admissible. Thomas v. State, 734 N.E.2d 572, 573 (Ind.
2000).
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In re B.B., 1 N.E.3d at 156. The father in that case had acknowledged that the
telephone numbers were his and the mother’s; the mother had described the
evidentiary exhibit as consisting of texts sent between her and the father. See id.
at 156-58. We found that there was sufficient evidence to support a finding that
the text messages were what the mother claimed them to be, and that a
sufficient foundation had been laid for their admission. Id. at 159.
Accordingly, we found no abuse of discretion in the trial court’s decision to
admit them. Id.
[17] Be that as it may, we are not reviewing for an abuse of discretion the trial
court’s decision to admit evidence over one party’s objection at a hearing.
Rather, we are confronted with a post-hearing reversal of a decision on
admissibility which, by its procedural irregularity and lack of specificity,2 denied
Mother the opportunity to be heard. We agree with Mother that she was not
afforded procedural due process in this regard. See Paternity of R.A.F., 766
N.E.2d at 726 (“An opportunity to be heard is essential before a parent can be
deprived of custody.”).
2
It is not apparent whether the trial court found all or less than all the texts to be relevant or to what extent
the trial court relied upon the substance of any of the texts in making its custody determination.
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Conclusion
[18] The trial court’s blanket exclusion of evidence of a substantial change in
circumstances and post-hearing reversal of an evidentiary ruling deprived
Mother of a meaningful opportunity to be heard.
[19] Reversed and remanded for further proceedings consistent with this opinion.
Crone, J., and Brown, J., concur.
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