Carrie Bennett v. Frederick Bennett (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before any Mar 26 2019, 8:44 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Jonathan R. Deenik Trenna S. Parker
Deenik Law, LLC Trenna S. Parker Law Office, P.C.
Greenwood, Indiana Noblesville, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Carrie Bennett, March 26, 2019
Appellant-Respondent, Court of Appeals Case No.
18A-DR-1550
v. Appeal from the Hamilton
Superior Court
Frederick Bennett, The Honorable David K. Najjar,
Appellee-Petitioner. Judge
Trial Court Cause No.
29D05-1309-DR-8368
Mathias, Judge.
[1] Carrie Bennett (“Mother”) appeals the Hamilton Superior Court’s order
restricting her parenting time with the parties’ minor child to supervised
parenting time in a therapeutic setting. Mother argues that the court’s order is
not supported by the evidence.
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[2] We affirm.
Facts and Procedural History
[3] Mother and Frederick Bennett (“Father”) have five children, but four of the five
children are now legally adults. The youngest child at issue in this appeal is
seventeen-year-old C.B.
[4] The parties’ marriage was dissolved in July 2014. Their marriage and the
dissolution proceedings were contentious, but the parties continued to reside in
close proximity to each other and shared joint custody of the children. Shortly
after the parties were divorced, Father obtained employment in New Mexico.
In December 2014, the parties agreed to a temporary custody arrangement
awarding Father sole legal and physical custody of C.B., who was thirteen years
old, and her brother, who was fourteen years old.1
[5] During the divorce proceedings, and the ensuing custody and parenting time
modification proceedings, the trial court appointed a guardian ad litem (“GAL”)
for the children. The children told the GAL that Mother was physically and
emotionally abusive. The children also reported that Mother’s home was not
clean and smelled strongly of cat and dog urine. Mother denied abusing or
harming the children.
1
Mother was awarded sole legal and physical custody of the parties’ sixteen-year-old daughter.
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[6] In June 2015, the GAL concluded that Mother and the children had significant
problems in their relationship, that Mother blamed Father and the children for
the issues between Mother and the children, and Mother refused to
acknowledge any responsibility in the damaged relationship with her children.
On June 29, 2015, the parties agreed that Father would have sole legal and
physical custody of the minor children in New Mexico, subject to Mother’s
parenting time. The parties agreed that Mother would have seven weeks of
parenting time in the summer, spring break, and one half of the children’s
winter break.
[7] Over the next few years, Mother’s relationship with the children continued to
deteriorate. When C.B.’s sister and brother turned eighteen, they refused to
have any contact with Mother. Mother continued to place blame for her
troubled relationship with the children on Father.
[8] C.B. continues to receive individual therapy in New Mexico, as well as in
Indiana while she is in the state for parenting time with Mother. C.B. suffers
from anxiety and depression. C.B. exhibits increased symptoms of anxiety
before she returns to Indiana for parenting time with Mother. C.B.’s therapist in
New Mexico believes that C.B. suffers from post-traumatic stress disorder as a
result of Mother’s abuse over the years.
[9] C.B. was particularly anxious about returning to Indiana for parenting time
with Mother by herself after her brother turned eighteen. C.B.’s therapist
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concluded that C.B. is emotionally vulnerable, and C.B. expressed that any
contact with her mother was “very distressing.” Tr. Vol. II, p. 45.
[10] On February 2, 2017, Father filed a petition to modify parenting time. The
court ordered both parties to undergo psychological evaluations, and the GAL
was re-appointed. As a result of Mother’s psychological evaluation, she was
diagnosed with personality disorder with mixed personality problems including
histrionic, narcissistic, borderline, and compulsive personality traits.
Appellant’s App. Vol. III, p. 87.
[11] Mother and C.B. began participating in reunification therapy in 2017, which
was recommended by the GAL. C.B. has expressed that she does not trust
Mother and does not want a relationship with her. In April 2018, the GAL
issued another report recounting C.B.’s opinion that reunification therapy was
not helpful. C.B. continued to report stress, anxiety, depression and insomnia as
a result of contact and therapy with Mother. C.B.’s grades in school also
declined.
[12] Hearings were held on December 1, 2017, April 20, 2018, and May 25, 2018.
The GAL also filed her final report on May 14, 2018. The GAL concluded that
Mother and C.B.’s relationship continues to be “deeply fractured.” Appellee’s
App. Vol. II, p. 100. C.B. did not have any interest in continuing with
reunification therapy. C.B. reported that reunification therapy causes her
significant stress, anxiety, and depression. C.B. also told the GAL that she has
suicidal thoughts. She also expressed frustration that Father is encouraging her
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to continue with reunification therapy. Id. at 100–01. Due to stress and
depression, C.B.’s grades dropped significantly, and she does not want to spend
time with friends. The GAL expressed significant concern over C.B.’s
emotional well-being. Id. at 103.
[13] On June 5, 2018, the trial court issued its order adjudicating the parties’
pending motions concerning parenting time. The trial court found that the
“previously agreed upon” parenting time schedule “presents a significant threat
to” C.B.’s mental health, and therefore, “there is a substantial and continuing
change in circumstances that warrants a modification of” Mother’s parenting
time. Appellant’s App. Vol. II, p. 31. The court modified Mother’s parenting
time ordering that “[s]upervised parenting time shall only occur in a therapeutic
setting through reunification therapy or may be done in person through a
different reunification therapist in New Mexico.” Id. The court also determined
that Mother could exercise additional parenting time by agreement of the
parties. Mother now appeals.
Discussion and Decision
[14] In all parenting time controversies, courts must give foremost consideration to
the best interests of the child. In re Paternity of C.H., 936 N.E.2d 1270, 1273 (Ind.
Ct. App. 2010), trans. denied. We review a trial court’s parenting time decision
for an abuse of discretion. Hatmaker v. Hatmaker, 998 N.E.2d 758, 761 (Ind. Ct.
App. 2013). An abuse of discretion occurs when the trial court's decision is
clearly against the logic and effect of the facts and circumstances before the
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court or if the court misinterpreted the law. Id. “If there is a rational basis for
the trial court’s determination, then no abuse of discretion will be found.” In re
Paternity of C.H., 936 N.E.2d at 1273.
[15] Mother argues that “for all practical purposes” the trial court entered “an order
denying Mother parenting time” because her financial circumstances make it
impossible for her to travel to New Mexico for supervised parenting time.2
Appellant’s Br. at 6. Mother also argues that the parenting time restriction is not
supported by the evidence.3
[16] “A parent not granted custody of the child is entitled to reasonable parenting
time rights unless the court finds, after a hearing, that parenting time by the
noncustodial parent might endanger the child’s physical health or significantly
impair the child's emotional development.” Ind. Code § 31-17-4-1(a). “Even
though the statute uses the word ‘might,’ this Court has previously interpreted
the language to mean that a court may not restrict parenting time unless that
parenting time ‘would’ endanger the child’s physical health or emotional
2
Concerning Mother’s economic argument, we observe that the right of parenting time is subordinated to the
best interests of the child. Lasater v. Lasater, 809 N.E.2d 380, 401 (Ind. Ct. App. 2004). “Accordingly, if
unsupervised parenting time would pose a danger to a child, the parent is not entitled to dispense with
supervision because of the costs associated with supervisory programs.” Hatmaker v. Hatmaker, 998 N.E.2d
758, 762 (Ind. Ct. App. 2013). Mother would have to incur significant expense to participate in in-person
reunification therapy in New Mexico with C.B. But the trial court’s order also permits reunification therapy
via phone or other electronic means.
3
Mother also argues that the trial court erred when it ordered that she could “exercise parenting time by
agreement of the parties.” In support of her argument she relies on Hatmaker, but in that case, the trial court
did not make the requisite finding of endangerment to support the restriction of the Father’s parenting time.
See 998 N.E.2d at 762. In the event that reunification therapy between Mother and C.B. is successful, we
encourage Father to agree to allow Mother additional parenting time.
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development[, and] an order for supervision constitutes such a restriction.”
Hatmaker, 998 N.E.2d at 761.
[17] Indiana Code section 31-17-4-2 allows a trial court to modify a parenting time
order “whenever modification would serve the best interests of the child.” But
[e]xtraordinary circumstances must exist to deny parenting time
to a parent, which necessarily denies the same to the child. If the
trial court finds such extraordinary circumstances do exist, then
the trial court shall make specific findings regarding its
conclusion that parenting time would endanger the child’s
physical health or significantly impair the child’s emotional
development.
Perkinson v. Perkinson, 989 N.E.2d 758, 765 (Ind. 2013).
[18] C.B. and Mother’s relationship is “deeply fractured.” Appellee’s App. Vol. II,
p. 100. C.B.’s therapists testified that C.B. suffers from stress, anxiety and
depression. C.B. is emotionally vulnerable and is likely suffering from post-
traumatic stress disorder. Tr. Vol. II, pp. 38–39. Although Mother now accepts
some responsibility for her troubled relationship with C.B., she continues to
place significant blame on Father even though Father has encouraged C.B. to
maintain a relationship with Mother.
[19] After hearing the evidence, the trial court commented:
[T]he relationship has broken down, death by a thousand paper
cuts. Little things over the years that have added up and added
up to a complete loss of trust and a complete and utter
breakdown of the parent-child relationship. . . .
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In the Court’s assessment of what has happened thus far, and
what has happened specifically in the last six to eight months, it
is that the situation continues to get worse and that attempts to
fix this part or that part of the relationship, nothing has improved
it. And even when there is perhaps a good day, . . . [o]verall the
situation does not improve and continues to get worse. And now
we are in a situation where the child has expressed suicidal
thoughts as an alternative to participating in parenting time.
Tr. Vol. IV, p. 48.
[20] In support of her argument, Mother cites to cases where our court has
addressed the lack of sufficient evidence to support a restriction on parenting
time.4 And Mother appropriately observes that “our parenting time statute does
not provide for the elimination of parenting time because reunification
counseling has proved unusually challenging[.]” See D. B. v. M.B.V., 913 N.E.2d
1271, 1275 (Ind. Ct. App. 2009).
[21] But each case must be evaluated on its own unique and particular facts. In this
case, the evidence supports the trial court’s findings that C.B.’s emotional
health is endangered by continued unsupervised parenting time with Mother.
For all of these reasons, we conclude that the evidence supports the trial court’s
4
See In re Paternity of W.C., 952 N.E.2d 810 (Ind. Ct. App. 2011) (concluding that although Mother needed to
improve her parenting skills for her special needs child, the record did not support terminating Mother’s
parenting time); D.B. v. M.B.V., 913 N.E.2d 1271 (Ind. Ct. App. 2009) (reversing the order terminating
Father’s parenting time where there was no specific finding that parenting time would cause harm to the
children).
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order restricting Mother’s parenting time to supervised time during
reunification therapy.
[22] Affirmed.
Vaidik, C.J., and Crone, J., concur.
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