In re the Paternity of N.E., by Next Friend, Jody W. Elkins v. Jennifer L. Hahn, f/k/a Jennifer L. Benson (mem. dec.) ( 2017 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Mar 03 2017, 5:59 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
Gregory K. Blanford Robert J. Palmer
The Blanford Law Office May Oberfell Lorber
South Bend, Indiana Mishawaka, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In re the Paternity of N.E., by March 3, 2017
Next Friend, Court of Appeals Case No.
71A03-1605-JP-1066
Appeal from the Saint Joseph
Jody W. Elkins, Superior Court
Appellant-Petitioner, The Honorable Steven L.
Hostetler, Judge
v.
Trial Court Cause No.
71J01-0905-JP-534
Jennifer L. Hahn, f/k/a Jennifer
L. Benson,
Appellee-Respondent
Vaidik, Chief Judge.
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Case Summary
[1] Jody Elkins (“Father”) appeals the trial court’s denial of his request to modify
physical custody of his daughter, N.E. Father contends that the evidence does
not support the court’s findings of fact and that the findings of fact do not
support the judgment. Finding no error, we affirm.
Facts and Procedural History
[2] Jennifer Hahn (“Mother”) gave birth to a daughter, N.E., on March 21, 2008.
At the time of N.E.’s birth, Mother and Father were no longer romantically
involved, but Father established paternity in 2009. Since N.E.’s birth, Mother
and Father have engaged in a custody battle. Both parents have alleged that the
other has endangered N.E., including allegations of sexual and emotional
abuse. As a result, N.E., who is currently eight years old, has been questioned
multiple times by the Department of Child Services (DCS) and law-
enforcement personnel, undergone six physical examinations and one
psychosexual evaluation, and testified in court.
[3] In May 2010, Mother and Father agreed to joint legal and physical custody,
with each having equal parenting time. This agreement was in place for less
than a year when, in January 2011, Father petitioned the court to modify
physical custody and award him primary physical custody of N.E. Roughly
two weeks before the hearing on Father’s motion, DCS received a report that
Father had sexually molested N.E. Father’s parenting time was suspended
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during the investigation, and Mother was awarded sole legal custody. The
court delayed the custody hearing pending DCS’s findings. The molestation
claim was unsubstantiated, and the court reset the hearing. Approximately one
week before the reset hearing, DCS received another report alleging that Father
had sexually abused N.E. The court, again, delayed the hearing pending DCS’s
findings. This claim was also unsubstantiated. In June 2013, a temporary
order was entered allowing Father unsupervised parenting time every other
weekend; his original motion to modify physical custody remained pending.
[4] Mother and Father attended mediation to try and resolve their custody battle,
but they were unsuccessful. In August 2014, following the unsuccessful
mediation, the court appointed a Guardian Ad Litem (GAL) for N.E. and
instructed the GAL to investigate the issues of custody and parenting time.
While the GAL was conducting her investigation, N.E. began seeing a
therapist. A month after N.E. started therapy, the GAL submitted her initial
report to the court, recommending that Father have a few extra hours with N.E.
on his parenting weekends.
[5] During a therapy session in July 2015, N.E. told the therapist that she had lied
when she said that Father had sexually abused her. The therapist informed
Mother and Father that N.E. had recanted the allegations against Father (which
had already been unsubstantiated by DCS). Mother asked N.E. why she lied
about being abused. N.E. responded that she did not lie about the abuse, but
rather Father had told her to recant and say that he did not abuse her. See Tr. p.
265-66. Meanwhile, the GAL continued with her investigation, including
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talking with N.E.’s therapist, and submitted to the court a supplemental report
in December 2015. The GAL again recommended that Father have more
parenting time with N.E. However, the report explicitly stated that Father
should not have primary physical custody, as requested in his motion to modify
custody, because N.E. would perceive this change as a form of punishment and
loss of Mother’s love.
[6] In January 2016, N.E. began exhibiting behavioral problems—N.E. pulled
down her pants to show her buttocks to some girls in her class; she wrote a note
asking a classmate if he wanted to have sex with her; she had begun fighting
classmates; and she threatened to kill herself if she had to go to Father’s house.
As a result of these behaviors, N.E. was placed on medication. N.E.’s behavior
improved drastically due to the medication, so much so that her teacher sent
home a letter in March detailing how much better N.E. was doing in class. See
id. at 259.
[7] In April 2016, more than five years after filing a motion to modify custody, the
court held a hearing on Father’s motion. Over the course of the two-day
hearing, the court heard testimony from the GAL and N.E.’s therapist. Both
testified that Mother and Father needed help parenting. Mother had made
inappropriate comments to N.E. regarding these proceedings and led N.E. to
believe that Mother lost her job because she had to go to court to fight for
custody (Mother, in fact, had not lost her job). Father, on the other hand,
continued to hold grudges against Mother and refused to co-parent with her.
He videotaped every transfer of N.E., had not attended a school event since
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dropping N.E. off for her first day of first grade, and did not attend special
events in N.E.’s life, such as school functions or soccer and baseball games.
They also noted that N.E. had a strained relationship with Father’s wife. See id.
at 54 (stepmother called N.E. a “liar” to her face, is overwhelmed by N.E., and
needs support to help her parent); id. at 153 (stepmother told N.E. to “shut the
F up”); id. at 158 (stepmother needs parenting classes to address her problems
with N.E.). Following the hearing, the court received notice of allegations that
stepmother struck N.E. on April 25 and 26, just days after the hearing ended.
Appellant’s App. Vol. II p. 44.
[8] Regarding physical custody, both the GAL and the therapist testified that N.E.
was struggling emotionally due to the constant fighting between Mother and
Father. They also stated that N.E. loves both of her parents, but N.E. is afraid
that if Father is given primary physical custody she will never see Mother again
and will perceive the change in custody as a form of punishment.
Nevertheless, both the GAL and the therapist recommended (contrary to the
GAL’s reports) that Father have primary physical custody of N.E. and that
Mother have supervised parenting time for a few hours each week. The custody
change was recommended as a way to force Mother to co-parent with Father.
Even with the recommended change, both the GAL and the therapist stated
that N.E. needed to maintain a relationship with Mother and continue to attend
school in Mother’s district.
[9] After the hearing, the trial court issued findings of fact and conclusions. The
court ultimately ordered that Mother should retain primary physical custody of
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N.E. In reaching this conclusion, the court noted that the therapist’s
“recommendations are subject to question.” Id. at 38. The court questioned the
recommendations because: the therapist largely blamed Mother for N.E.’s
issues and ignored that “Father’s responsibility is also readily apparent”; the
therapist reached her “unusual” recommendation “not because she believes that
parenting time by Mother would be harmful to [N.E.], but because she believes
that is the only way Mother will become willing to co-parent [N.E.]”; and the
therapist accepted “at face value [N.E.’s] recanting of her molestation report,”
even though N.E. later recanted her recantation. Id. 37-38. The court also
“carefully scrutinized” the GAL’s recommendations because they were based
largely in part on the therapist’s recommendations and N.E.’s behavioral
problems at school. Id. at 38. The court concluded that no evidence was
presented that “N.E.’s problems at school are the result of being in Mother’s
primary physical custody. Nor was there any objective evidence that [N.E.’s]
problems would be solved by placing [her] in the primary physical custody of
Father.” Id. However, evidence was presented to show that there has been
“significant improvement now that [N.E.] is on medication.” Id. Based in part
on the allegations that stepmother had recently struck N.E., the court ordered
the GAL to investigate Father’s home and took away Father’s overnight
parenting time. Father’s parenting time was reduced to every other Saturday
and Sunday from 10:00 a.m. to 7:00 p.m.
[10] Father appeals.
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Discussion and Decision
[11] Father contends that the trial court erred when it denied his request to modify
primary physical custody of N.E. Custody modifications are reviewed “for
abuse of discretion with a preference for granting latitude and deference to our
trial judges in family law matters.” In re Paternity of J.G., 19 N.E.3d 278, 282
(Ind. Ct. App. 2014). When the trial court has entered findings of fact and
conclusions, “we first must determine whether the evidence supports the
findings and second, whether the findings support the judgment.” Albright v.
Bogue, 736 N.E.2d 782, 787 (Ind. Ct. App. 2000). “We consider the evidence
favorable to the judgment and all reasonable inferences following therefrom.”
Id. “[W]e are constrained to neither reweigh evidence nor judge the credibility
of witnesses.” Id.
[12] The facts of this case sadly are the result of what happens when parents, after
splitting up, refuse to co-parent and focus on the best interests of the child and
instead continually place the child in the middle of their fighting. In these
situations, the trial court is left to sort through a complex history of parental
fights to determine what is in the best interests of the child. Here, the trial court
was faced with an extensive history of allegations by both parents against one
another claiming sexual and emotional abuse of N.E., and it ultimately
concluded that N.E.’s best interests were served with Mother retaining primary
physical custody. We find no reason to overturn the trial court’s decision.
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[13] Father makes several contentions to support his overall argument that the
court’s findings of fact do not support its judgment.1 First, he argues that the
court’s finding that “[t]he problems between the minor child and [stepmother]
are particularly serious,” Appellant’s App. Vol. II p. 33, is not supported by
evidence. But during the hearing, there was ample testimony that stepmother
struggled to parent N.E., including calling N.E. a “liar” to her face and having
parenting classes recommended to her in order to address her issues with N.E.
Tr. pp. 54, 158. Furthermore, after the hearing concluded, the court received
notice of allegations that stepmother had struck N.E. on two separate
occasions. Appellant’s App. Vol. II p. 44. We find that there is sufficient
evidence to support this finding.
[14] Next, Father argues there is no evidence to support the trial court’s
characterization that his responsibility for N.E.’s behavioral issues is “readily
apparent.” Appellant’s Br. pp. 19-20. In his brief, Father acknowledges that
the court’s statement goes on to say, “Father has not attended a single activity
(including parent-teacher conferences) at [N.E.’s] school in the three years
[N.E.] has attended school. Father has attended not a single soccer game and
only one baseball game. Father has gone long stretches with no parenting time
1
One such contention asks this Court to review the record and enter additional findings of fact that
support his modification request. This is another way of asking the Court to reweigh the evidence,
which we will not do.
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at all.” Id.; Appellant’s App. p. 37. There is sufficient evidence to support the
court’s characterization.
[15] Last, Father contends that the multiple negative findings of fact regarding
Mother’s parenting of N.E. are evidence that Mother should not have primary
physical custody of N.E. The court’s findings of fact included statements that
negatively reflected on both Mother’s and Father’s ability to parent. Trial
courts are put in a difficult position when hearing custody cases like this one,
where, instead of co-parenting for the sake of N.E., Mother and Father have
continually engaged in legal battle after legal battle and placed N.E. at the
center of their conflict. The trial court weighed the options before it and issued
a well-thought-out decision that focused on the best interests of N.E. The
judgment is based on those interests and the evidence presented. In its analysis
the court stated, “But it is far from clear that Father having custody of N.E.
would present a better situation. . . . [T]here was no evidence presented that
N.E.’s problems at school are the result of being in Mother’s [primary] physical
custody.” Id. at 37-38. Accordingly, the findings of fact are supported by
evidence in the record, and the judgment is supported by the findings of fact.
[16] Mother, in her response to Father’s appeal, points out that we have the
discretion to remand this proceeding for an award of appellate attorney’s fees.
We decline her invitation to remand.
[17] Affirmed.
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Bradford, J., and Brown, J., concur.
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