Jason Keel v. April Najdowski ( 2014 )

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
May 15 2014, 5:58 am
APPELLANT PRO SE:
JASON KEEL
Bunker Hill, Indiana
IN THE
COURT OF APPEALS OF INDIANA
JASON KEEL, )
)
Appellant, )
)
vs. ) No. 29A02-1305-DR-463
)
APRIL NAJDOWSKI, )
)
Appellee. )
APPEAL FROM THE HAMILTON SUPERIOR COURT
The Honorable Gail Bardach, Judge
Cause No. 29D06-0504-DR-1818
May 15, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
ROBB, Judge
Case Summary and Issues
Jason Keel (“Father”), pro se, appeals the trial court’s denial of his petition for
reinstatement of his parenting time. He raises several issues, which we consolidate and
restate as whether the trial court abused its discretion in limiting his contact with his
daughter, S.K., and whether the trial court violated Father’s Fourteenth Amendment rights.
Finding no error, we affirm.
Facts and Procedural History
In 2002, S.K. was born to Father and April Najdowski (“Mother”). Father and Mother
divorced on July 6, 2005, and Father was initially not awarded any parenting time. In 2006,
Father and Mother agreed upon a modification of visitation where Father would have
parenting time on weekend afternoons. In 2007, Mother filed a petition to suspend Father’s
parenting time, which was granted by the trial court. A number of motions were filed by
Father between 2007 and 2012, but he never was successful in reestablishing parenting time.
Father eventually petitioned for a change of judge, and a new judge qualified and accepted
the case. In March 2012, the court held a hearing and determined that based on the facts
presented, Father’s parenting time would not be modified until he was released from
incarceration. The court set the next hearing for August 10, 2012, assuming Father would be
released from custody at that point. That hearing was continued twice upon request to July 2,
2013. Father was still in custody as of July 2.1 Despite the fact Father was again
1
There was a short period of time between the March 2012 and July 2013 hearings that Father was
released from custody, but the exact dates are unclear.
2
incarcerated, the court held the hearing to reconsider its March 2012 order denying parenting
time.2
After the hearing, the court issued an order finding Father only had sporadic and
inconsistent contact with S.K., who was then ten years old, and that any prior contact
between the two was insufficient to establish a meaningful relationship. Further, the court
found that the continuation or re-institution of a relationship between Father and S.K. would
impair S.K.’s emotional well-being and development. The court’s order allowed Father to
send S.K. a letter once per month, as well as a birthday card, in order to rebuild a
relationship. Finally, the court ordered Father will not have in-person parenting time until he
is released from custody; submits to a substance abuse assessment and completes all
treatment recommended by the assessment; completes both anger and stress management
classes; and does not commit any probation violations for six months — the earliest he will
be able to complete these requirements is January 2015. Father now appeals.
Discussion and Decision
I. Abuse of Discretion
A. Standard of Review
Mother did not file an appellee’s brief. We apply a less stringent standard of review
with respect to showings of reversible error when an appellee fails to file a brief. Zoller v.
Zoller, 858 N.E.2d 124, 126 (Ind. Ct. App. 2006). We will not undertake the burden of
2
The court issued a transport order so Father was physically present and participated fully in this
hearing.
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developing the arguments for the appellee, and we may reverse if the appellant establishes
prima facie error. Id. When the appellant fails to sustain that burden, we will affirm. Murfitt
v. Murfitt, 809 N.E.2d 332, 333 (Ind. Ct. App. 2004).
B. Father’s Parenting Time
A court may grant or deny parenting time whenever modification serves the best
interests of the child. Ind. Code § 31-17-4-2.3 It shall not restrict parenting time rights unless
it finds the parenting time might endanger the child’s physical health or significantly impair
the child’s emotional development. Id. Despite the word “might” in the statute, this Court
has interpreted the language in the statute to mean “a court may not restrict parenting time
unless that parenting time ‘would’ endanger the child’s physical health or emotional
development.” D.B. v. M.B.V., 913 N.E.2d 1271, 1274 (Ind. Ct. App. 2009).
Father’s first argument is Mother did not prove beyond a reasonable doubt that
visitations would cause S.K. any harm. Mother, though, was not required to prove beyond a
reasonable doubt that the visitations would cause S.K. harm. Rather, a party who seeks to
restrict a parent’s visitation bears the burden of presenting evidence justifying a restriction by
a preponderance of the evidence. Hatmaker v. Hatmaker, 998 N.E.2d 758, 761 (Ind. Ct. App.
2013). The trial court explicitly found “there is sufficient evidence that’s been introduced,
3
Father cites Indiana Code section 31-14-14-1(a) throughout his brief to make his argument. That
section governs parenting time following a determination of paternity, not parenting time determinations made
during or after a divorce proceeding. The texts of the statutes are substantially similar, though, so this error is
of little consequence. (Compare Ind. Code § 31-17-4-2 (“The court may modify an order granting or denying
parenting time rights whenever modification would serve the best interests of the child. However, the court
shall not restrict a parent’s parenting time rights unless the court finds that the parenting time might endanger
the child’s physical health or significantly impair the child’s emotional development.”), with Ind. Code § 31-
14-14-1(a) (“A noncustodial parent is entitled to reasonable parenting time rights unless the court finds, after a
hearing, that parenting time might: (1) endanger the child’s physical health and well-being; or (2) significantly
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your present contact with your daughter [S.K.], would impair her emotional development.”
Transcript at 96. Father has not made a prima facie showing that suspending visitation until
Father complied with the court’s order was not in S.K.’s best interest.
To the extent Father argues the “[t]rial court does not conform to Indiana code” and
the “trial court has clearly acted out side [sic] the scope of being a mediator in this case,”
Brief of Appellant at 7-8, Father has not presented a cogent argument or reasoning as
required by our rules. Ind. Appellate Rule 46(A)(8)(a). The fact that Father is pro se does
not excuse him from complying with the Appellate rules. Terpstra v. Farmers and Merchants
Bank, 483 N.E.2d 749, 754 (Ind. Ct. App. 1985), trans. denied. His argument is thus
forfeited.
Father’s second argument is that Father is denied his constitutional right to rebuild his
relationship with S.K. by the court preventing parenting time. Father cites a Kentucky case
and McCurdy v. McCurdy, 173 Ind. App. 437, 363 N.E.2d 1298 (1977) for support of his
position that it is “so blatant of the trial court to abuse its powers as to not award child
visitation in prison.” Brief of Appellant at 9. To the extent Father’s argument is the trial
court abused its discretion by ordering Father not to have visitation with S.K. until he is no
longer incarcerated, we disagree. McCurdy involved a mother who did not want her children
to confront their father in the surroundings of prison life, and it was the place, not the father,
that triggered her concern. Id. at 442. Here, the court found that a relationship with Father
would impair S.K.’s emotional development, and Father would not be able to rectify the
underlying issues until he was released from incarceration. The trial court’s order then was
impair the child’s emotional development.))
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not to deny Father parenting time only because he was incarcerated. Father has not made a
prima facie showing of error.
Father’s third and fourth arguments revolve around the portion of the court’s order
that limits Father’s contact with S.K. to one letter a month and the trial court’s observation
that Father’s contact with S.K. has been inconsistent. Father fails to make a cogent argument
on these points with citations to the record or authority, so these arguments are forfeited.
App. R. 46(A)(8)(a).
II. Violation of Fourteenth Amendment Rights
Father lastly argues the trial court violated his Fourteenth Amendment rights “by
placing him under duress, threatening and intimidation by modifying his probation . . . to
include conditions which prevent Father from seeing [S.K.] and placing [him] in harm’s
way.” Br. of App. at 1. Father actually only mentions the Fourteenth Amendment in the
summary of issues presented section of his brief; he fails to present any argument in the body
of his brief regarding which of his rights were violated, aside from alleging the court placed
him under duress when it asked if he would be willing to modify the terms of his probation.
While this argument was somewhat difficult to understand and lacked citation to any
authority or the record, we prefer to reach the merits of a case when possible, so we will
address this issue as we understand it. Hass v. State, Dep’t of Transp., 843 N.E.2d 994, 997
(Ind. Ct. App. 2006), trans. denied.
We interpret this as an allegation that Father’s due process rights were violated when
the court placed him under duress and threatened him to get him to change the terms of his
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probation. The trial court, in its order, noted that Father agreed to a modification of the
conditions of his probation previously imposed, and successful completion of probation is a
condition precedent for Father to regain in-person parenting time. Father argues that he had
no choice but to accept this modification, and he felt that if he did not agree or accept the
changes, he would be denied parenting time. Our reading of the record is quite different. At
least six times during the July 2, 2013, proceedings Father stated he wanted to get himself
into a drug and alcohol treatment program, see, e.g., tr. at 39, 58-60, 80, 83, and he
volunteered that he was willing to complete the programs before he had in-person parenting
time. Id. at 39. The court asked Father if he meant he would be willing to wait until he was
released from custody to complete a six to eight month drug and alcohol course before actual
parenting time with S.K., and Father affirmatively replied. Id. at 59. After the presentation
of evidence, the court asked Father again if he would be willing to complete a CARE
assessment and comply with any recommended programs, and take anger and stress
management classes, as part of his probation. The court stated that its parenting time
determination would not depend on Father’s probation modification. It also cautioned Father
about the potential harms in altering the probation terms, and that he was “under no
obligation whatsoever to agree to that as additional – or those as additional conditions of
probation.” Id. at 95. Father’s argument that he was under duress at the time he agreed to
the modification of his probation fails.
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Conclusion
Concluding the trial court did not abuse its discretion in restricting Father’s parenting
time and Father’s Fourteenth Amendment rights were not violated, we affirm.
Affirmed.
RILEY, J., and BRADFORD, J., concur.
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