In Re the Paternity of T.T.: L.H. v. L.T. and D.N. ( 2014 )

Pursuant to
Pursuant to Ind.Appellate
Ind.Appellate Rule
Rule 65(D),
65(D),
this Memorandum Decision
this Memorandum Decision shall shallnotnot
be Dec 19 2014, 10:36 am
be regarded as precedent or
regarded as precedent or cited before cited
before
any anyexcept
court courtforexcept for the
the purpose of
purpose of establishing the defense
establishing the defense of res judicata, of
res judicata,
collateral collateral
estoppel, or estoppel,
the law orof the
the
law
case. of the case.
ATTORNEYS FOR APPELLANT: APPELLEE PRO SE:
ANDREA L. CIOBANU D.N.
ALEX BEEMAN Fishers, Indiana
Ciobanu Law, P.C.
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
IN RE THE PATERNITY OF T.T.: )
)
L.H., )
)
Appellant-Petitioner, )
)
vs. ) No. 49A02-1404-DR-270
)
L.T., and D.N., )
)
Appellee-Respondents. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable John F. Hanley, Judge
The Honorable Christopher B. Haile, Magistrate
Cause No. 49D11-0510-DR-41507
December 19, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
BROWN, Judge
The maternal grandmother of T.T., L.H. (“Grandmother”), appeals the trial court’s
order granting the petition to modify custody of T.T. filed by D.N. (“Father”).
Grandmother raises two issues which we consolidate and restate as whether the trial court
abused its discretion in taking under advisement its decision on whether to interview T.T.
in camera until after the close of evidence and in denying Grandmother’s request for an
in camera interview with T.T. We affirm.
FACTS AND PROCEDURAL HISTORY
Grandmother cared for T.T. during the first part of his life and obtained custody.1
In 2007, the court ordered that Grandmother have physical custody of T.T., that
Grandmother and Father have joint legal custody, and that Father have parenting time.
On June 13, 2013, Father filed a verified petition for modification of custody and
emergency hearing. Father alleged that Grandmother was in the hospital due to a
recurring and possibly serious illness, that T.T.’s mother (“Mother”) and Mother’s
boyfriend moved into Grandmother’s home, that Mother had not been actively involved
in parenting T.T., and that Mother had been incarcerated for dealing cocaine at some
point and was convicted of criminal charges in Tennessee as recently as February 2013.
On March 26, 2014, the court held a hearing on Father’s motion. At the beginning
of the hearing, Grandmother’s counsel indicated that T.T. was fourteen years old and
stated that T.T. wished to be heard “so, we are requesting that the Court interview him in
chambers.” Transcript at 5. The court stated: “Well, my policy on in camera interviews
is to wait until I’ve heard the evidence and make a determination about whether I think
1
The record does not contain a copy of the initial custody order.
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it’s important or not.” Id. Grandmother’s counsel responded by saying “[o]kay.” Id.
The court asked whether the parties wanted to stipulate as to what T.T.’s wishes were,
and Grandmother’s counsel stated: “we would say that he wishes to stay with his
grandmother, stay in her custody, and, and not have modification of custody . . . .” Id. at
5-6. Father’s counsel stated that that may have been stated in the report by the Domestic
Relations Counseling Bureau (“DRCB”). The court asked “obviously, that didn’t sway
the DRCB regarding the recommendation,” and Father’s counsel stated “it did not, as far
as I know.” Id. at 6. Father’s counsel asked the court to take judicial notice of the DRCB
report that was ordered and completed, and the court stated: “So noted.” Id. at 8.
Father’s fiancée testified regarding Father’s relationship with her daughter and
T.T.’s relationship with her daughter. Father testified that Grandmother went to the
hospital three or four times within the past six to eight months, that the last time was for
ten days, and that no one called him at any time to tell him. Father testified regarding his
concern with certain individuals who smoke marijuana at Grandmother’s house. Father
also testified regarding his education and the fact that he was employed. Grandmother
testified that she wished T.T. would remain in her custody and she knew that T.T. agreed
with her wish. She testified that she was in the hospital for seven days. She also testified
that none of her children graduated from school and that she had been given custody of
her son’s daughter who was currently seventeen years old, pregnant, and “on the run.”
Id. at 100.
After the parties rested, the court stated:
Alright, Court is going to take this under advisement. I’m going to review
the record and my notes. If I determine that it’s, uh, necessary and helpful
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to talk with [T.T.] then I will contact, we will contact, um, counsel, to make
arrangements to have him brought in for an interview to be done, alright?
Id. at 123. Grandmother did not object.
On April 1, 2014, the court entered an order granting Father’s petition for
modification of custody. The order indicated that the DRCB recommended that custody
be modified and the court agreed with the recommendations of the DRCB. The court
ordered that Father have sole custody of T.T. and that Grandmother have parenting time
with T.T. on alternate weekends.
DISCUSSION
The issue is whether the trial court abused its discretion in taking under
advisement its decision on whether to interview T.T. in camera until after the close of
evidence, and in denying Grandmother’s request for an in camera interview.
Grandmother argues that the court abused its discretion because it should have inquired
as to the basis or reason why T.T. wished to remain in her custody. Grandmother argues
that the trial court’s decision to take her request under advisement until the close of the
evidence “effectively denied [her] the ability to compel a witness on her behalf.”
Appellant’s Brief at 11. She asserts that it should not be left to one party to place a child
in the middle of an adversarial custody battle and that “[o]ne can also infer that had
[Grandmother] attempted to call [T.T.] as a witness, the trial court would have summarily
denied the request in light of its decision on the in camera interview of [T.T.].” Id. She
also contends that the trial court’s errors were not harmless because they effectively
denied T.T. from being heard and denied her the ability to present evidence.
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Father, pro se, argues that Grandmother waived her challenge to the denial of her
request for an in camera interview because she presents her argument in a perfunctory
form. He contends that this court should dismiss the appeal because it is frivolous,
wholly without merit, and brought in bad faith, and that sanctions should be imposed. He
also asserts that the trial court acted entirely within in its discretion in denying
Grandmother’s request for an in camera interview.
In her reply brief, Grandmother contests Father’s assertions and argues that
“[s]anctions presupposes [sic] one incurred attorney’s fees in a matter” and that Father
“has allegedly filed his brief pro se and represented to this Court the same, though there
is all the indications that the brief was written by a ghost” given the “substantially perfect
Blue Book citation and [Father’s] request for sanctions.” Appellant’s Reply Brief at 8.
With respect to Father’s argument that we dismiss the case or impose sanctions,
we observe that Ind. Appellate Rule 46(A)(8)(a), which is cited by Father, provides: “The
argument must contain the contentions of the appellant on the issues presented, supported
by cogent reasoning. Each contention must be supported by citations to the authorities,
statutes, and the Appendix or parts of the Record on Appeal relied on, in accordance with
Rule 22.” We also observe that Ind. Appellate Rule 66(E) provides that “[t]he Court may
assess damages if an appeal, petition, or motion, or response, is frivolous or in bad faith.
Damages shall be in the Court’s discretion and may include attorneys’ fees.”
While Ind. Appellate Rule 66(E) provides this court with discretionary authority to
award damages on appeal, we must use extreme restraint when exercising this power
because of the potential chilling effect upon the exercise of the right to appeal. Thacker
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v. Wentzel, 797 N.E.2d 342, 346 (Ind. Ct. App. 2003) (citing Tioga Pines Living Ctr.,
Inc. v. Ind. Family & Soc. Serv. Admin., 760 N.E.2d 1080, 1087 (Ind. Ct. App. 2001),
aff’d on reh’g, trans. denied). A strong showing is required to justify an award of
appellate damages and the sanction is not imposed to punish mere lack of merit but
something more egregious. Harness v. Schmitt, 924 N.E.2d 162, 168 (Ind. Ct. App.
2010). Grandmother’s brief contains cogent reasoning and citations to authority. We
decline to dismiss the appeal or impose sanctions. Accordingly, we turn to the merits of
Grandmother’s arguments.
Indiana Code § 31-17-2-9(a) provides that when making a decision concerning
child custody, a trial court “may interview the child in chambers to ascertain the child’s
wishes.” (Emphasis added). Additionally, Indiana Code § 31-17-2-8(3) states that, when
making a child custody determination, the trial court “shall consider . . . [t]he wishes of
the child, with more consideration given to the child’s wishes if the child is at least
fourteen (14) years of age.”
We have noted that, under Indiana Code § 31-17-2-9, “the decision concerning
whether to conduct an in camera interview is within the trial court’s discretion.”
Cunningham v. Cunningham, 787 N.E.2d 930, 937 (Ind. Ct. App. 2003). To the extent
the trial court’s refusal to interview T.T. in camera was similar to an exclusion of
evidence, the admission of evidence is entrusted to the sound discretion of the court.
K.L. v. E.H., 6 N.E.3d 1021, 1030 (Ind. Ct. App. 2014). We will find an abuse of
discretion only where the court’s decision is against the logic and effect of the facts and
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circumstances before the court. Id. We will reverse only if the error is inconsistent with
substantial justice or if a substantial right of the party is affected. Id.
The record reveals that Grandmother’s counsel stated that T.T. wished to stay with
Grandmother. Grandmother testified that she wished T.T. would remain in her custody
and that she knew that T.T. agreed with her wish. While the record does not contain a
copy of the DRCB report, the record suggests that the report includes statements
indicating T.T.’s desire to remain with Grandmother, and the court took judicial notice of
the report. Thus, the trial court had before it argument and evidence that T.T. wished to
remain with Grandmother. We also note that Grandmother did not object to the trial
court’s statement at the beginning of the hearing that the court was going to wait until it
heard the evidence before making a determination on Grandmother’s request for an in
camera interview. And she did not object at the end of the hearing when the court stated
that it would take the matter under advisement. Grandmother also made no attempt to
call T.T. to testify as a witness, as she could have done, if she truly wished T.T. to be
heard by the trial court. See White v. White, 655 N.E.2d 523, 528-529 (Ind. Ct. App.
1995) (holding that option to conduct in camera interview of child pursuant to statute did
not permit trial court to disallow in-court testimony of competent child). Under the
circumstances, we cannot say that the denial of Grandmother’s request for an in camera
interview or the fact that the court took the matter under advisement requires reversal of
the trial court’s order.
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CONCLUSION
For the foregoing reasons, we affirm the trial court’s order granting Father’s
petition to modify custody.
Affirmed.
BAILEY, J., concurs.
ROBB, J., concurs in result without separate opinion.
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