In the Paternity of J.W. Bailey R. Dailey v. Justin L. Piersimoni , 79 N.E.3d 975 ( 2017 )

FILED
Jul 07 2017, 6:03 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT
Yvonne M. Spillers
Fort Wayne, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Paternity of J.W. July 7, 2017
Bailey R. Dailey, Court of Appeals Case No.
76A04-1610-JP-2476
Appellant,
Appeal from the Steuben Circuit
v. Court
The Honorable Randy Coffey,
Justin L. Piersimoni, Magistrate
Trial Court Cause No.
Appellee.
76C01-1105-JP-152
Bailey, Judge.
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Case Summary
[1] B.D. (“Mother”) appeals an order finding her in contempt of court, upon the
petition of J.P. (“Father”). We reverse.
Issues
[2] Mother presents two issues for review:
I. Whether the parenting time order with which Mother is to
comply incorporates an improper delegation of authority
to a service provider, such that Mother is restricted in the
exercise of her custodial rights; and
II. Whether Mother was willfully in contempt of the
parenting time order.
Facts and Procedural History
[3] Mother gave birth to J.W. (“Child”) on December 22, 2009. Father’s paternity
was established on November 13, 2012. At that time, Father was in prison after
having pled guilty to a battery upon Mother. Mother was granted full custody
of Child and Father was not ordered to pay child support.
[4] After Father’s release from prison, he sought parenting time with Child.
Mother opposed parenting time for Father, but argued that, if Father was
granted parenting time, he should exercise that time under supervision. On
May 17, 2016, the trial court issued an order granting Father limited parenting
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time under the control and supervision of Community Anti-Violence Alliance
Family Ties program (“Family Ties”) in Angola.
[5] Pursuant to the order, Father was to have fifteen one-hour visits, followed by
twenty two-hour visits (so long as the Family Ties Supervised Visitation
Program could accommodate the parties). Father was to arrange and pay for
parenting time sessions; Mother was to respond and cooperate. Both parents
were to abide by the rules of the program. The order specified that “the actual
day for such parenting time shall be arranged to fit the schedule of the CAVA
Family Ties Program,” but further stated that the parties might, by mutual
agreement, alter the times and days. (App. at 11.)
[6] Father was ordered to participate in any program of counseling recommended
by Family Ties for the protection of Child. Upon completion of the thirty-five
supervised parenting time sessions and any recommended counseling, Father
was to have seven hours of unsupervised parenting time on alternate Saturdays.
Father was to begin exercising parenting time as contemplated by the Indiana
Parenting Time Guidelines after June 3, 2017.1 The parenting time order was
not appealed.
1
However, Father’s exercise of overnight parenting time was contingent upon Father establishing a home of
his own, not controlled or owned by another person. Also, parental exchanges of Child were limited to a
Safe Exchange Program offered by Family Ties, as Father remained subject to a protective order for Mother’s
benefit.
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[7] Father began individual counseling with Jeremy Lewis, a Family Ties therapist
(“Lewis”). Because Child had not seen Father for several years, Family Ties
scheduled parenting time as therapeutic sessions with Lewis. On the second
visit, without Mother’s permission, Father’s mother (“Grandmother”) was
permitted to be present during parenting time. Mother took issue with this but
was advised by Executive Director Lee David (“David”) that Mother would
need a court order to prevent Grandmother’s attendance at a parenting time
session.
[8] During the third parenting time session, Child used a code word to indicate that
she was uncomfortable and wanted to leave. Lewis learned that Mother had
told Child that Father had pushed Mother and Child down stairs. Lewis
confronted Mother and accused her of “sabotaging” parenting time. (Tr. at 70.)
At some point, Mother expressed her disagreement with Child receiving
therapeutic sessions at Family Ties. Mother advised that Child already had a
counselor. She also expressed some interest in obtaining the services of another
person; Lewis responded with a comment suggesting that the other counselor
engaged in exorcisms.
[9] Mother obtained legal counsel, who drafted a letter to David requesting that
future visits between Child and Father be supervised “by anyone other than
Jeremy Lewis.” (Pet. Ex. 2.) The letter also stated that Mother “understands
that means the visits will not be therapeutic but rather only supervised.” (Pet.
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Ex. 2.) On July 27, 2016, counsel also filed a motion to have parenting time
relocated to the Children First Center.2
[10] David and Mother engaged in some discussion regarding proposed changes.
David offered a Wednesday evening time slot with a therapist other than Lewis.
Mother advised that Child had gymnastics on Wednesday nights. She
requested a Friday evening time, but the therapist available for assignment did
not work on Friday evenings. Mother notified Family Ties that Child would
not attend the first scheduled Wednesday evening session. David wrote a letter
to the trial court alleging Mother was non-compliant.3
[11] On August 30, 2016, Father filed a Petition for Contempt Citation and Rule to
Show Cause. He alleged that Mother had failed to appear at parenting time or
had left before the allotted time expired. Mother filed a motion for a Guardian
Ad Litem and an objection to ex parte communication by David, a non-party.
On October 4, 2016, the trial court conducted a hearing on the pending matters.
[12] Mother testified that she agreed with the existing court order for supervision of
parenting time and “everything [the judge] says” but contended that she had
“asked to reschedule” and Family Ties would not accommodate her. (Tr. at
78.) David testified to her belief that the court had entrusted Family Ties with
2
By that time, neither parent lived in Angola and Child was in elementary school. Travel to Family Ties
involved a two-hour round trip.
3
The trial court indicated that the letter was filed without being read. It is apparent, however, that the trial
court was made aware that David alleged Mother was non-compliant with services.
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“the authority to determine whether visits should be supervised or therapeutic.”
(Tr. at 91.) David opined that Lewis was the most suitable therapist for Father
and Child and it saved parental expense because he worked pursuant to a grant
of funds. Nonetheless, she had offered therapeutic sessions on Wednesday or
Sunday. Mother had agreed to neither.
[13] Lewis testified that he was providing ongoing counseling services to Father, and
that Father was “open to the idea of having supervised or therapeutic” visits.
(Tr. at 106.) Lewis opined that Mother’s conduct was part of a “parental
alienation dynamic.” (Tr. at 105.) Lewis conceded that he was aware that
Father was facing a new criminal charge related to violence.
[14] Father testified that the parenting time sessions had been going well before
interruption. He denied that he had pushed Mother down stairs when Child
was an infant, and found it inappropriate that Child had been given that
information. Father testified that he had slapped Mother, grabbed her hair, and
thrown her across the room; he denied pushing her down a flight of twenty-five
stairs, stealing her car, or stealing her purse. He also acknowledged that he was
facing a new criminal charge.
[15] On October 14, 2016, the trial court issued an order denying Mother’s motion
to move the parenting time location, her motion for a Guardian Ad Litem, and
her petition for attorney’s fees from David. The trial court found Mother in
contempt of the parenting time order “for denying parenting time.” (Order, pg.
6.) She was sentenced to serve 30 days in jail. Pursuant to the order, Mother
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could purge herself of contempt by paying $750.00 of Father’s attorney’s fees
and filing proof of compliance that she “demonstrate[d] an immediate and
sincere attempt to follow all mandates and requirements of the Court’s orders
[sic] dated May 17, 2016.” (Order, pg. 6.) The order specified that any prior
order not in conflict with the present order remained in full force and effect.
Mother now appeals.
Discussion and Decision
Prima Facie Error Standard of Review
[16] At the outset, we observe that Father has not filed an appellate brief. When an
appellee fails to submit an appellate brief, we do not undertake the burden of
developing an argument on the appellee’s behalf. Trinity Homes, LLC v. Fang,
848 N.E.2d 1065, 1068 (Ind. 2006). Rather, we reverse the trial court’s
judgment if the appellant’s brief presents a case of prima facie error. Id. Prima
facie error in this context is defined as, “at first sight, on first appearance, or on
the face of it.” Santana v. Santana, 708 N.E.2d 886, 887 (Ind. Ct. App. 1999).
Where an appellant is unable to meet this burden, we affirm. Id.
Delegation of Authority
[17] Mother first argues that the trial court infringed upon her parental rights by
delegating to David the sole discretion as to whether parenting time sessions
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would be therapeutic or supervised, which therapist would provide services if
the session was therapeutic, and when those sessions should occur.4
[18] Mother observes that she was granted the sole legal and physical custody of
Child, and she directs our attention to Indiana Code Section 31-14-13-4, which
provides: “Except as otherwise provided in an order by a court, the custodial
parent may determine the child’s upbringing, which includes education, health
care, and religious training, unless the court determines that the best interests of
the child require a limitation on this authority.” Further, this matter does not
involve an allegation by the State that Child is a Child in Need of Services
(“CHINS”).5
[19] Here, the trial court made no explicit determination that it is in Child’s best
interests that Mother’s authority be limited. Nor do the orders explicitly state
that Child needs mental health treatment. It appears that the focus of mental
health services in the original order was upon providing services to Father, who
had been convicted of a violent crime. Nonetheless, the orders as enforced
4
We acknowledge that Mother did not appeal the May 17, 2016 order within 30 days pursuant to Indiana
Appellate Rule 9. However, the contempt order on appeal is based upon the trial court’s interpretation and
re-affirmation of the original parenting time order.
5
A child is a child in need of services if, before the child becomes eighteen years old, the child’s physical or
mental condition is seriously impaired or endangered as a result of the inability, refusal, or neglect of the
child’s parent, guardian, or custodian to supply the child with necessary food, clothing, shelter, medical care,
education, or supervision; and the child needs care, treatment, or rehabilitation that the child is not receiving
and is unlikely to be provided or accepted without the coercive intervention of the court. Ind. Code § 31-34-
1-1.
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effectively limit Mother’s decision-making as to whether Child should receive
mental health services and with whom.
[20] According to Mother, the delegation of authority to Family Ties’ executive
director is akin to that reversed by a panel of this Court in Matter of Paternity of
A.R.R., 634 N.E.2d 786 (Ind. Ct. App. 1994). There, the trial court had ordered
supervised visitation “until Family Connection Center feels mother is no longer
acting against Family Connection Center’s rules.” Id. at 789. Visitation was to
be increased upon the recommendation of a specific therapist. In concluding
that an improper delegation had been made, the Court reasoned:
[A] modification of visitation may not be granted absent a
determination by the court that the modification would serve the
best interests of the child. No statute permits this determination
to be delegated to a caseworker, probation officer, guardian, or
other authority, and to do so would be to undermine the
safeguards inherent in reserving to a detached and impartial court
the task of weighing the many considerations relevant to
visitation. By authorizing the Family Connection Center to
determine when supervised visitation is no longer needed and
when the frequency of visitation may be increased, the court
impermissibly endowed that agency with judicial powers.
Id.
[21] Like the order involved in Matter of A.R.R., the instant parenting time order
confers upon an individual employed by a service agency authority that
properly resides with the parent or, in limited circumstances where court
intervention is necessary, with the court. See In re S.D., 2 N.E.3d 1283 (Ind.
Court of Appeals of Indiana | Opinion 76A04-1610-JP-2476 | July 7, 2017 Page 9 of 21
2014) (recognizing that the State’s parens patriate intrusion into the ordinarily
private sphere of the family is limited).
[22] Mother, as sole legal custodian, was to decide Child’s upbringing, including her
mental health care and extra-curricular activities. When Father was granted
parenting time, Mother sought protection from the trial court in the form of
additional requirements of Father. That is, Father’s time with Child was to be
supervised and he was to receive counseling appropriate for a domestic violence
perpetrator being reunited with his child. Mother did not seek mental health
care for Child, nor was Child adjudicated a CHINS. However, the trial court
ultimately enforced David’s assignment of Father’s individual therapist to
provide additional services to Child despite the lack of a specific finding that it
was in Child’s best interests to override Mother’s wishes. We conclude that
Mother has demonstrated prima facie error in this regard.
Finding of Contempt
[23] The trial court found Mother was in contempt of court for denial of parenting
time. In a section entitled “Contempt for Denying Parenting Time,” the order
stated:
[Mother] ignored the directives contained in the order of May 17,
2016. She did whatever she could to frustrate CAVA personnel
in its proper implementation of Court’s directives. She is in
contempt of court.
[Mother]’s continued defiance deserves coercive punishment to
insure compliance with this Court’s orders.
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(Order, pg. 5.) Mother contends that the basis for the finding of contempt is
unclear and that there is insufficient evidence of her willful disregard of a court
order.
[24] There are two types of contempt, direct and indirect. The willful disobedience
of any lawfully entered court order of which the offender had notice constitutes
indirect contempt. Akiwumi v. Akiwumi, 23 N.E.3d 734, 737 (Ind. Ct. App.
2014). In cases of indirect contempt, the person charged with indirect contempt
is entitled to be served with a rule to show cause. Id. at 738. Pursuant to
Indiana Code Section 34-47-3-5, the rule to show cause must, among other
requirements, clearly and distinctly set forth the facts that are alleged to
constitute the contempt. Here, the allegation against Mother was that she failed
to appear at parenting time or left before the allotted time expired.
[25] Whether a person is in contempt of a court order is a matter within the trial
court’s discretion. Mitchell v. Mitchell, 785 N.E.2d 1194, 1198 (Ind. Ct. App.
2003). We reverse the trial court’s finding of contempt only where an abuse of
discretion has been shown, which occurs when the trial court’s decision is
against the logic and effect of the facts and circumstances before it. Id. When
we review a contempt order, we neither reweigh the evidence nor judge the
credibility of the witnesses. Id. Mother bears the burden, prima facie, of
showing that her violation was not willful. Akiwumi, 23 N.E.3d at 741; Trinity
Homes, 848 N.E.2d at 1068.
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[26] The evidence against Mother is that she opposed having Child involved in
therapeutic visits with Father’s counselor, at least after the first few visits.6
Instead, she desired to have visits with Father monitored by a supervisor; as the
custodial parent, she was entitled to this preference. However, based upon the
service provider’s insistence that therapeutic sessions take place, Mother was
offered only those time slots. Mother continued to take Child to gymnastics
and notified Family Ties that Child would not appear at a Wednesday night
session. Although a rescheduling of gymnastics would undoubtedly have been
more cooperative, we find that Mother’s conduct is short of willful disobedience
given the broad and ambiguous language of the parenting time order. The trial
court’s order, even as re-affirmed after hearing, did not mandate therapy for
Child and contemplated schedule changes upon agreement. Mother has met
her burden, prima facie, of showing that her conduct did not amount to willful
disobedience.
Conclusion
[27] The trial court infringed upon the custodial rights of Mother, the sole custodial
parent, who was not subject to a CHINS proceeding, by delegating to a service
provider decision-making as to Child’s need for therapy. Mother has shown,
6
Mother may have acquiesced to an initial introduction to parenting time facilitated by a therapist. All
parties agreed that Father and Child had not had contact for several years. Apparently, Child expressed no
memories associated with Father.
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prima facie, that she was not in indirect contempt of court. As such, the trial
court’s order of contempt is an abuse of discretion.
[28] Reversed.
Robb, J., concurs in result with separate opinion.
Vaidik, C.J., dissents with separate opinion.
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IN THE
COURT OF APPEALS OF INDIANA
In the Paternity of J.W. Court of Appeals Case No.
76A04-1610-JP-2476
Bailey R. Dailey,
Appellant,
v.
Justin L. Piersimoni,
Appellee.
Robb, Judge, concurring in result.
[29] As a general premise, I agree with the law stated by both Judge Bailey and
Chief Judge Vaidik in their opinions. But I see the facts of this case differently
than either Judge Bailey or Chief Judge Vaidik and believe Mother’s situation
falls somewhere in between the law as stated by each of them. Nonetheless, I
ultimately agree with Judge Bailey that the trial court’s order finding Mother in
contempt should be reversed, and I therefore concur in result.
[30] In part, I agree with Judge Bailey that the trial court’s May 2016 order
constituted an improper delegation of parental authority to Family Ties, as it
allowed Family Ties to determine the day on which Father would exercise his
parenting time rather than allowing the parties in conjunction with Family Ties to
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set a schedule in keeping with the trial court’s order. However, I also note that,
unlike the situation in Matter of A.A.R., the court here specifically determined
the exact conditions under which Father’s parenting time would increase and
evolve, not leaving the question of modification of parenting time to a non-
judicial decision-maker. Rather, the trial court’s broad order that Family Ties
would “control and supervis[e]” parenting time allowed Family Ties to usurp
Mother’s decision-making about Child’s treatment and schedule and yet the
trial court had not found that Mother’s authority as sole custodian of Child
should be limited. Appendix of Appellant, Volume II at 11. To this extent, I
agree the trial court improperly delegated parental authority to Family Ties.
[31] I also acknowledge Chief Judge Vaidik’s point that if Mother was unhappy with
the trial court allowing Family Ties this discretion, she could have appealed the
order after it was entered in May of 2016. But the order as written did not put
undue burdens on Mother and therefore she had nothing to appeal. It was
later, when Family Ties began exercising its limited discretion in a manner that
was outside the bounds of the order with respect to Mother and Child, that
issues arose. When Mother took issue with how Family Ties was interpreting
and implementing the court’s order, she used the court process to try to resolve
the conflict by requesting that parenting time be relocated and a guardian ad
litem be appointed. She timely appeals the denial of those requests, and I
therefore do not believe she has forfeited her right to appeal.
[32] As for the trial court’s contempt finding, the trial court ordered Father to
participate in any program of counseling Family Ties recommended. Child
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already had a counselor and was not ordered by the court to participate in
therapeutic counseling. Mother was not ordered to facilitate the Child’s
participation in Father’s therapeutic counseling but only to cooperate with
parenting time. Therefore, Family Ties was unnecessarily and without
authority limiting its availability to supervise parenting time by its unilateral
imposition of a therapeutic element. In other words, at the time Mother
allegedly refused to comply with Family Ties’ requirements, she was under no
court obligation to satisfy those requirements. For these reasons, I agree the
contempt finding must be reversed.
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ATTORNEY FOR APPELLANT
Yvonne M. Spillers
Fort Wayne, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Paternity of J.W. July 7, 2017
Bailey R. Dailey, Court of Appeals Case No.
76A04-1610-JP-2476
Appellant, Appeal from the Steuben Circuit
Court
v.
The Honorable Randy Coffey,
Magistrate
Justin L. Piersimoni,
Trial Court Cause No.
Appellee 76C01-1105-JP-152
Vaidik, Chief Judge, dissenting.
[33] I respectfully dissent. Because the evidence supports the trial court’s conclusion
that Mother willfully disobeyed a clear court order by denying Father parenting
time, I would affirm the contempt finding.
[34] The trial court issued a five-page parenting-time order in May 2016. The order
gave Family Ties “control” over the parenting-time sessions between Father
and Child, including the “actual day” of the sessions, and ordered Mother and
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Father to “fully cooperate with the officials of [the] program.” Appellant’s
App. Vol. II p. 11. Mother initially complied with the court’s order, taking
Child to Family Ties five times (two of which were therapeutic sessions). Tr. p.
64. But after a month of sessions Mother became upset with Family Ties and
stopped complying with the May 2016 order. She filed a motion to modify the
location of the parenting time from Family Ties in Angola to Children First
Center in Auburn.7 While that motion was pending, Mother did not take Child
to Family Ties. Father responded by filing a petition for contempt, and the trial
court found Mother in contempt for “ignor[ing] the directives contained in the
order” and “denying [Father] parenting time.” Appellant’s App. Vol. II pp.
175-76.
[35] Mother now appeals her contempt finding, but it is hard to tell if she is doing so
by attacking the May 2016 order that gave Family Ties discretion or by
challenging the manner in which Family Ties exercised that discretion. In any
event, neither of these arguments has merit.
[36] Addressing the first basis, Mother claims that the trial court erred by
“delegat[ing]” its judicial authority to Family Ties to determine “whether the
supervised visits ought to be therapeutic” and “which date the visits must
occur.” Appellant’s Br. p. 16. Mother, however, did not appeal the May 2016
order within thirty days and therefore has forfeited her right to appeal this
7
Ironically, Mother’s motion to modify requested therapeutic parenting time at the new location.
Appellant’s App. Vol. II p. 16.
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order. In re D.J., 68 N.E.3d 574, 579 (Ind. 2017); In re Adoption of O.R., 16
N.E.3d 965, 971 (Ind. 2014). Nevertheless, a reviewing court may exercise
discretion to decide the merits of a forfeited appeal. D.J., 68 N.E.3d at 579.
The question is whether there are “extraordinarily compelling reasons” to
justify reaching the merits of a forfeited appeal. O.R., 16 N.E.3d at 971.
Because Mother has not identified such reasons here, I would not reach the
merits of this issue.
[37] As for the second basis, Mother asserts that Family Ties “interpreted the
Court’s Order as delegating to [it] the authority to determine if the supervised
sessions ought to be therapeutic in nature,” without the approval of the trial
court.8 Appellant’s Br. p. 17. As I already noted, Mother has changed her
position on appeal as she requested therapeutic parenting time in her motion to
modify. In any event, even if Mother believed that Family Ties was abusing the
discretion it had been given in the May 2016 order by requiring the visits to be
therapeutic as opposed to supervised, she still was not entitled to stop bringing
Child to Family Ties without a new court order in hand. Even though Mother
8
Judge Bailey likens this case to In re Paternity of A.R.R., 634 N.E.2d 786 (Ind. Ct. App. 1994). In that case,
the trial court ordered that visitation between the mother and the child would continue at Family Connection
Center with the same frequency and duration that was then occurring and that it would be fully supervised
until the Family Connection Center felt that the mother was no longer acting against the center’s rules. In
addition, the court ordered that visitation would increase upon the therapist’s recommendation. We reversed
this order on appeal because it left the determination of “when supervised visitation [was] no longer needed
and when the frequency of visitation may be increased” to Family Connection Center instead of to the trial
court. That impermissible endowment of judicial powers is simply not present here. The trial court’s May
2016 order carefully set out Father’s parenting time, starting with one hour per week for fifteen weeks under
the “control and supervision” of Family Ties and ending with overnight parenting time after June 3, 2017,
pursuant to the Indiana Parenting Time Guidelines, provided that Father had established a stable home of his
own. Appellant’s App. Vol. II p. 13.
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filed a motion to modify the parenting time from Family Ties in Angola to
Children First Center in Auburn, the court had not ruled on this motion. While
this motion was pending, Mother was still required to bring Child to Family
Ties. Mother’s failure to do so led to Father’s petition and the trial court’s
contempt finding.9
[38] Until modified or vacated, a court order remains in effect. A party can be held
in contempt for failing to follow a court’s order if the party willfully disobeys it.
City of Gary v. Major, 822 N.E.2d 165, 169-70 (Ind. 2005) (noting that a party
can even be held in contempt of an erroneous order and explaining that the
only remedy from an erroneous order is to appeal it). In addition, the order
must be clear and certain as to what the party must do or not do. Id. at 170.
Here, the trial court found that its May 2016 order should have been “easily
understood” and was written in a way to give Family Ties control over how the
parenting-time sessions were conducted. Appellant’s App. Vol. II p. 172; Tr. p.
86. I agree. The order provided that Family Ties had “control” over the
parenting-time sessions between Father and Child. Mother did not like how
9
Mother said she did not bring Child to Family Ties because Child had gymnastics class on the night that
Family Ties scheduled the sessions after she requested a change in therapist. But as the trial court explained
in its order:
The Court never heard anything about the gymnastic[s] classes. The Court is therefore unaware
where these classes occur or whether these classes occur on any other night. Most evidently
missing from the testimony is evidence which revealed whether such classes are available at
other gyms or facilities. This absence is especially troubling since the Court doubts that, in a
community the size of Fort Wayne, the only gymnastics class offered for seven year old girls is
at one location and is only offered on Wednesday nights. Other alternatives must exist.
Appellant’s App. Vol. II p. 172 n.1.
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Family Ties was exercising the control it was given. So she took matters into
her own hands and stopped going to Family Ties without a new court order. I
would therefore affirm the trial court’s finding that Mother was in contempt.
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