Paternity: Genesis Palma v. Zachary Kent Keown ( 2024 )

IN THE
Court of Appeals of Indiana
In the Matter of the Paternity of E.B.K.; FILED
Aug 14 2024, 10:25 am
Genesis E. Palma,
CLERK
Appellant-Petitioner Indiana Supreme Court
Court of Appeals
and Tax Court
v.
Zachary K. Keown,
Appellee-Respondent
August 14, 2024
Court of Appeals Case No.
23A-JP-2316
Appeal from the Warrick Superior Court
The Honorable Benjamin R. Aylsworth, Magistrate
Trial Court Cause No.
87D02-2002-JP-20
Opinion by Judge Tavitas
Judge Bradford concurs.
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Judge Crone dissents with separate opinion.
Tavitas, Judge.
Case Summary
[1] Genesis Palma (“Mother”) appeals the trial court’s grant of a modification of
custody regarding E.K. (“Child”), which was filed by Zachary Keown
(“Father”). The parties initially agreed to joint legal and physical custody;
however, the trial court later granted Father’s petition for emergency temporary
change of custody and ordered that Mother have supervised parenting time
with the Child. Thirty-two months later, the trial court began final hearings
regarding the Child’s custody. The trial court granted Father’s petition for
change of custody and granted Mother unsupervised parenting time.
[2] Mother argues that her due process rights were violated during these
proceedings due to procedures used to grant the temporary change of custody,
delays in conducting the final hearings, and the denial of guardian ad litem
(“GAL”) discovery. Mother also argues that the trial court erred by granting
Father’s petition to modify custody. As for the due process argument, we
conclude that Mother has failed to demonstrate a due process violation
regarding the emergency temporary change of custody. We, however, conclude
that Mother’s due process rights were violated by the extraordinary delays in
conducting the final custody hearings and by the trial court’s denial of Mother’s
discovery requests to the GAL. Moreover, regarding the petition to modify
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custody, Mother has demonstrated that the trial court failed to find a proper
substantial change in circumstances and erred by granting the petition.
Accordingly, we reverse and remand.
Issues
[3] Mother raises several issues, which we restate as:
I. Whether Mother’s due process rights were violated by
the procedures used by the trial court to grant the
temporary change of custody.
II. Whether Mother’s due process rights were violated by
the delays in proceeding to the final custody hearing.
III. Whether Mother’s due process rights were violated by
the trial court’s denial of Mother’s discovery requests to
the GAL.
IV. Whether the trial court erred by granting Father’s
petition to modify custody.
Facts
[4] The Child was born in June 2018 to Mother and Father. Mother has an older
child, E.P., and Mother has sole legal and physical custody of E.P. David Heal
was appointed as the GAL during the paternity proceedings for the Child. Due
to concerns regarding Mother’s mental health, substance abuse by Mother, and
an open Department of Child Services (“DCS”) investigation, the GAL
recommended joint physical custody as long as Mother lived with her parents
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and supervised visits for Mother if she moved to another residence. In
February 2019, Mother and Father reached an agreement regarding custody,
parenting time, and child support. The parties agreed to joint legal and physical
custody. The agreement required ninety days written notice if either Mother or
Father intended to change their residence.
[5] In January 2020, Mother married Clayton Alexander after dating him for
approximately seven months, and she and the children moved out of her
parents’ residence. On February 5, 2020, Father filed an emergency petition to
modify custody. Father alleged that: Mother had a history of mental illness and
substance abuse; the Child has had unexplained bruising; Mother no longer
resided at her parents’ residence; Mother indicated a desire to move to Chicago;
and Mother recently eloped and refused to provide any information about her
new husband.
[6] The trial court held a hearing on the emergency petition on February 18, 2020.
During Father’s testimony, Mother, who was pro se, requested a continuance to
hire an attorney. The trial court denied Mother’s motion. Father testified that
he often has the Child during Mother’s parenting time; the Child had unusual
bruising during the past two months; Mother moved without any prior notice to
Father; Mother made concerning statements to Father regarding her
relationships with drug dealers and murderers, who according to Mother were
following Father and his fiancée; and Mother threatened to relocate to Illinois.
Father was concerned regarding Mother’s mental health, drug abuse, unstable
living situation, and lack of stable employment.
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[7] Father called Heal, the GAL in the 2018 paternity action, to testify. The GAL
testified that, during his 2018 investigation, Mother failed to inform the GAL
about an open DCS investigation, which had been substantiated. At the time,
Mother was cutting herself and left a mental health facility without obtaining
treatment. On one occasion, Mother had cocaine in her system when she went
to the hospital. According to the GAL, Father also claimed that Mother
battered him. 1
[8] Mother testified that: (1) she had been receiving counseling; (2) she was no
longer cutting herself; and (3) she recently married. The trial court declined to
grant the emergency custody change at that time, reappointed Heal as GAL,
and set a progress hearing for April 7, 2020.
[9] On March 4, 2020, Father filed his second emergency petition to modify
custody, in which he alleged that: (1) on February 13, 2020, officers responded
to Mother’ residence due to a report of domestic violence and, the officers
transported Mother to the hospital against her will because she was
demonstrating signs of mental illness and was a danger to others; (2) on
February 28, 2020, officers again responded to Mother’s residence due to a
report of domestic violence in the presence of the Child; and (3) Mother
1
There was no objection made pursuant to Indiana Code Section 31-17-2-21(c), which provides: “The court
shall not hear evidence on a matter occurring before the last custody proceeding between the parties unless
the matter relates to a change in the factors relating to the best interests of the child . . . .”
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cancelled her appointment with the GAL on the same day as one of the
domestic violence incidents.
[10] On March 4, 2020, the GAL filed a written report with the trial court. The
GAL reported Mother’s missed appointment with the GAL on February 28,
2020. Mother claimed she cancelled the appointment because the Child was ill.
Additionally, the police department contacted the GAL to inform him of
domestic violence between Mother and her husband, Alexander, on February
28, 2020. Officers reported to the GAL that the domestic violence occurred in
front of Mother’s children; Mother had alcohol on her breath; Mother allegedly
threatened people with a hammer and scissors; Mother had bruises on her arms;
and Mother’s husband, Alexander, also had bruises. The officers reported the
matter to DCS. The GAL made the following recommendation to the trial
court:
The Guardian ad Litem shares the exact same concerns as two
years ago. Mother should not have custody of these children
without supervision. The Guardian ad Litem awaits to hear
from the Department of Child Services. The Guardian ad Litem
believes mother should have a mental evaluation done. (Not by
Brentwood Springs).
Id. at 61.
[11] On March 11, 2020, the trial court held a hearing on Father’s emergency
motion. Father’s counsel requested that the hearing be conducted in summary
fashion, and Mother’s counsel agreed “to submit to the summary hearing . . . .”
Tr. Vol. II p. 37. Mother’s counsel also orally requested findings of fact and
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conclusions thereon, which the trial court denied because the trial court did not
“have time in [its] calendar to do that.” Id. at 38. The GAL testified that he
had concerns regarding Mother’s mental health and concerns that she was
abusing substances. The GAL recommended that Mother have a psychological
evaluation other than at Brentwood Springs because Mother had previously
been evaluated by Brentwood Springs, and the evaluation was not
comprehensive in the GAL’s opinion. The GAL also recommended that
Father have custody of the Child and that Mother have supervised parenting
time. Mother argued that Father failed to prove that Mother’s parenting time
would endanger or impair the Child’s physical or mental health.
[12] On March 20, 2020, the trial court issued a written order granting Father’s
petition for emergency modification of custody. The trial court found that a
“bona fide emergency regarding the custody of [the Child] exists,” that the
previous joint physical and legal custody arrangement was “temporarily
suspended,” and that Father was granted legal and physical custody of the
Child until further notice of the court. Appellant’s App. Vol. II pp. 64-65. The
trial court granted Mother supervised parenting time of eight hours a week,
ordered Mother to submit to a hair follicle analysis and a urinalysis, and
ordered Mother to submit to a “psychological evaluation.” Id. at 66. If Mother
submitted the required drug testing and “psychological evaluation,” the trial
court indicated that it would consider allowing maternal grandmother to
supervise Mother’s parenting time with the Child. Id.
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[13] Mother immediately submitted to the drug testing and tested negative for
unprescribed or illicit substances. Mother’s marriage to Alexander was
annulled, and Mother obtained a protection order against him in March 2020.
Mother entered into an Informal Adjustment with DCS regarding E.P.; Mother
completed services, including a mental health evaluation and group therapy;
and the Informal Adjustment was closed in March 2021. E.P. was never
removed from Mother’s care by DCS.
[14] The Covid-19 pandemic interfered with Mother’s ability to engage in supervised
parenting time with the Child. By May 21, 2020, Mother had not seen the
Child in ten weeks except for limited FaceTime calls. Mother informed the trial
court that Father was refusing to allow Mother to attend the Child’s doctor
appointments; he limited and recorded FaceTime calls; and he alienated the
Child from Mother. Mother was eventually able to participate in supervised
parenting time at a parenting time center, and at some point during the
proceedings, Mother’s parents were allowed to supervise some of Mother’s
weekly parenting time with the Child. Over the next several months, the parties
engaged in repeated contentious disputes over: (1) Mother’s supervised
parenting time; (2) the trial court’s requirement that Mother participate in a
psychological evaluation, and (3) discovery. Id. The discovery disputes and
other scheduling delays resulted in repeated continuances of the final hearing
dates.
[15] Of relevance to this appeal, in April 2020, Mother issued a subpoena duces
tecum to the GAL and requested the following documents:
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1. Copies of any and all records obtained by you or provided to
you in the matter;
2. Copies of any and all records requests that you have made
since January 1, 2020 in this matter;
3. Copies of all reports that you have filed with the Court in
this matter;
4. Any and all copies of correspondence, including, but not
limited to, emails, text messages, voice recordings, and
telephone calls between you and the following parties:
a. David W. Heal and [Mother];
b. David W. Heal and [Father];
c. David W. Heal and Clayton Alexander;
d. David W. Heal and [ ] Lisa B. Harris [Father’s counsel];
and
e. David W. Heal and any other party that was
communicated with regarding this matter.
Appellant’s App. Vol. II p. 72. The GAL filed a response and claimed that his
personal notes, emails, and deliberative materials were excluded from
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disclosure pursuant to Indiana Administrative Rule 9(G)(2)(i). 2 The GAL also
claimed that it was “totally unethical” to request documentation on
conversations, emails, and text messages between the GAL and opposing
counsel. Id. at 75. Father also submitted a response in support of the GAL.
The trial court appointed an attorney to represent the GAL, and a hearing was
held on the matter in June 2020. 3 The trial court denied Mother’s request for
production of records from the GAL and denied Mother’s request to depose the
GAL. 4
[16] In April 2021, Mother filed a motion for change of judge, which the trial court
denied. In April 2021, Mother also filed a petition to modify custody. Mother
alleged that: (1) the DCS cases had been dismissed; (2) Mother completed
counseling and services through DCS; (3) Mother had not been allowed
significant contact with the Child for more than one year; and (4) Father had
requested continuances of evidentiary hearings for the purpose of conducting
discovery, but he had failed to conduct additional discovery. Mother requested
that she be relieved of supervised parenting time requirements.
[17] Although the trial court had earlier denied the motion for change of judge, in
May 2021, the trial court recused, and Judge Benjamin Aylsworth was selected
2
This provision of Administrative Rule 9 was repealed and replaced by Access to Court Records Rule 5,
effective January 1, 2020.
3
The record does not indicate whether the GAL was an attorney; the record merely indicates that the GAL
has a degree in business.
4
We have not been provided with a transcript of this hearing.
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as the special judge. Mother then repeatedly requested that a final hearing be
scheduled. The Chronological Case Summary, however, reflects little progress
in moving the case forward until September 2022, when a scheduling
conference was held, and final hearing dates were set in November and
December of 2022. By the parties’ agreement, the trial court vacated the
November 2022 hearing date to “allow the parties to continu[e] working toward
a resolution.” Id. at 22. Ultimately, the trial court conducted the final hearing
over five days in December of 2022 and January and February of 2023.
[18] Shortly before the hearings, Mother filed a motion to quash the GAL’s
testimony because she was denied “the opportunity to conduct appropriate
discovery . . . .” Id. at 101. Mother argued that she was entitled to depose the
GAL; review the GAL’s “investigation and file”; and obtain any and all
documents considered by, obtained by, or provided to the GAL. Id. at 116.
The trial court declined to reconsider the initial trial court’s June 2020 order
and denied Mother’s motion.
[19] During the December hearing, the GAL testified that he closed the case in May
2022 because Mother stopped communicating with him. He still recommended
that Mother submit to a psychological evaluation and have supervised visits.
The GAL testified that he destroyed his physical file on the matter after he
closed the case. During his testimony, the GAL had a printout of his personal
notes from a computer file. Mother objected to the GAL using the notes to
refresh his recollection because her attorney had not seen these notes. The trial
court then let the GAL decide if: (1) he was going to use the notes and provide
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a copy to the attorneys; or (2) testify without his notes. In response, the GAL
ripped up his notes on the stand and testified without the notes.
[20] Mother testified that she submitted to a mental health assessment through her
DCS Informal Adjustment and participated in group therapy. 5 Mother
obtained her own apartment and her own cleaning business; she cares for her
older child, who has never been removed from her care; she sees a psychiatrist
and is in therapy; she goes to church; and she has been sober from alcohol and
illicit substances for three years. Mother testified that she is prescribed Adderall
for ADHD and takes various vitamins. In the past three years, Father has not
consulted with Mother regarding the Child’s daycare or health care. Mother
requested sole physical custody of the Child.
[21] Father testified that the Child is now four years old. Father testified regarding
the continued hostility between Mother and Father and Father’s family. Father
expressed continued concern regarding Mother’s mental health, the possibility
of physical abuse of the Child, Mother’s driving abilities, and Mother’s history
of substance abuse. Father requested that Mother’s parenting time with the
Child remain supervised.
5
The medical records admitted at the hearing indicate that Mother has been diagnosed with an unspecified
personality disorder. The medical records also indicate that Mother states she was diagnosed with a bipolar
disorder. Mother’s formal mental health diagnosis, however, is unclear from the records.
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[22] Following the evidentiary hearing, the trial court entered findings of fact and
conclusions thereon modifying custody of the Child on May 4, 2023, as follows:
25. During the time Mother was married to Clayton Alexander,
the GAL provided reports expressing concern over domestic
violence occurring in Mother’s home.
26. On March 11, 2020, the GAL testified and made
recommendations and the Court ultimately ordered Mother
“shall enroll in treatment and provide proof of the same.” Also,
“Court further orders Mother’s assessment shall not be in
Brentwood.” The Court’s Order failed to provide any written
findings or further reasoning or explanation at that time what
specific “treatment” Mother was to “enroll and complete” and
why any required assessment could not occur at Brentwood, a
facility regularly used in Warrick County by the Courts.
27. Since the birth of the child Mother has obtained mental
health treatment from the following providers: Evansville
Psychiatric Associates; Christian Counseling; Southwestern
Behavioral Healthcare; and Brentwood.
28. The GAL testified during the later contested hearing dates
that he withdrew from the cause since the child was safe in
Father’s care, it was in the child’s best interests to remain in
Father’s care and since Mother had failed to contact him for an
extended period of time.
29. Father has failed to inform Mother of the minor child’s
speech therapy appointments, dentist appointments, preschool
enrollment and counseling sessions despite the parties continuing
to share joint legal custody at all times.
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30. Father testified he has never intentionally taken actions to
alienate Mother from the minor child.
31. Father could not cite any reason during testimony as to what
a full psychological evaluation completed by Mother would
uncover or why that would help him feel more comfortable with
Mother’s return to having unsupervised parenting time.
32. Father testified that Mother has never actually harmed the
child.
33. Father’s wife--the child’s stepmother, and both the Paternal
and Maternal Grandmother of the child likewise testified that
Mother has never harmed the child.
34. No witness ever testified that Mother has ever actually
harmed the child.
35. The testimony and GAL reports indicate Father has made
numerous allegations against Mother and concerns for her
behavior which were not proven credible after GAL investigation
or later during contested hearing.
36. The GAL testified that Mother never harmed or presented a
danger to the child during his entire involvement in the matter
since his first appointment in 2018.
37. The GAL retired prior to the final three (3) days of contested
trial.
38. Mother has never tested positive for any unprescribed or
illegal substances throughout the duration of this matter.
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Appellant’s App. Vol. II pp. 41-42.
[23] The trial court then concluded:
47. After full review of the evidence and testimony and
considering the required factors as listed above, the Court does
FIND a substantial and continuing change in circumstances has
occurred and that it is in the best interests of the minor child at
this time to modify the prior 50/50 custody and parenting time
order dated February 4, 2019.
48. Specifically, the Court FINDS that factor (5)--the child’s
adjustment to home, school and community is a substantial and
continuing change in circumstances as the minor child has
resided solely with Father since March of 2020 with Mother only
having minimal parenting time. This substantial and continuing
change in circumstances was directly caused by another
substantial change listed under factor (7) that occurred around
March 2020, when Mother was in a domestic violence
relationship with her prior husband for years--an extended period
of time. This has caused a substantial and continuing
detrimental effect as well on factor (6)--Mother’s mental health,
which ultimately affected her ability to safely and properly parent
and be a full 50/50 joint custodian at that time. The substantial
changes in Mother’s mental health due to the pattern of domestic
violence were continuing as well until she eventually ended the
relationship with her prior husband after over three (3) years.
49. As a result of the Court finding a substantial and continuing
change in circumstances in one of the factors requiring
modification of the prior order and finding the modification [is]
in the best interests of the minor child at this time . . . .
Id. at 45-46.
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[24] The trial court granted the parties “joint legal custody” of the Child with Father
having “final decision-making authority” in the event of a dispute between
Father and Mother regarding the Child’s “health, education, religion and/or
any other future matter related to the child’s best interests.” 6 Id. at 47. The trial
court granted Father primary physical custody and Mother unsupervised
parenting time. The trial court also concluded:
The Court ultimately FINDS that the long amount of time (in
excess of 3 years) that has passed since the prior Judicial Officer’s
Order for Mother’s “treatment” to be conducted by a provider
other than Brentwood without explanation is hereby abated and
deemed moot by this Court at this time. This Court determines
that requirement to be overly broad and not supported by written
findings or present evidence under the immediate facts and
circumstances. The Court also cannot ignore the fact that
Mother has had continuous, sole and unsupervised custody of
her other child throughout the entire duration of this matter
which further signifies her present ability as a proper parent.
Id. Mother now appeals the custody order.
Discussion and Decision
[25] Mother challenges the trial court’s modification of custody. “‘Appellate
deference to the determinations of our trial court judges, especially in domestic
relations matters, is warranted because of their unique, direct interactions with
the parties face-to-face, often over an extended period of time.’” Hahn-Weisz v.
6
This is not joint legal custody, but the issue is not argued on appeal.
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Johnson, 189 N.E.3d 1136, 1141 (Ind. Ct. App. 2022) (quoting Best v. Best, 941
N.E.2d 499, 502 (Ind. 2011)). “‘Thus enabled to assess credibility and character
through both factual testimony and intuitive discernment, our trial judges are in
a superior position to ascertain information and apply common sense,
particularly in the determination of the best interests of the involved children.’”
Id. (quoting Best, 941 N.E.2d at 502).
Additionally, there is a well-established preference in Indiana for
granting latitude and deference to our trial judges in family law
matters. Appellate courts are in a poor position to look at a cold
transcript of the record, and conclude that the trial judge, who
saw the witnesses, observed their demeanor, and scrutinized their
testimony as it came from the witness stand, did not properly
understand the significance of the evidence. On appeal it is not
enough that the evidence might support some other conclusion,
but it must positively require the conclusion contended for by
appellant before there is a basis for reversal.
Steele-Giri v. Steele, 51 N.E.3d 119, 124 (Ind. 2016) (citations and internal
quotations omitted).
I. Mother’s Due Process Rights
[26] Mother first argues that her due process rights were violated by alleged
irregularities in the custody proceedings. The Fourteenth Amendment of the
United States Constitution prohibits any state from depriving any person of
“life, liberty, or property, without due process of the law.” U.S. Const. amend.
XIV, § 1. Article 1, Section 12 of the Indiana Constitution provides: “All courts
shall be open; and every person, for injury done to him in his person, property,
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or reputation, shall have remedy by due course of law.” The “identification of
the specific dictates of due process generally requires consideration of three
distinct factors”: (1) the private interest that will be affected by the official
action; (2) the “risk of an erroneous deprivation of such interest through the
procedures used, and the probable value, if any, of additional or substitute
procedural safeguards”; and (3) the State’s interest, “including the function
involved and the fiscal and administrative burdens that the additional or
substitute procedural requirement would entail.” Mathews v. Eldridge, 424 U.S.
319, 335, 96 S. Ct. 893, 903 (1976). We must also keep in mind “the general
proposition that if the State imparts a due process right, then it must give that
right.” A.P. v. Porter Cnty. Off. of Fam. & Child., 734 N.E.2d 1107, 1112 (Ind. Ct.
App. 2000), trans. denied.
[27] “[T]he interest of parents in the care, custody, and control of their children [ ] is
perhaps the oldest of the fundamental liberty interests recognized” by the
United States Supreme Court. Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct.
2054, 2060 (2000). “Child custody proceedings implicate the fundamental
relationship between parent and child, so procedural due process must be
provided to protect the substantive rights of the parties.” Bixler v. Delano, 185
N.E.3d 875, 878 (Ind. Ct. App. 2022). In the context of a termination of
parental rights, we have recognized there is “an inherent increased risk of error”
where the record “is replete with procedural irregularities.” A.P., 734 N.E.2d at
1118. Thus, while one irregularity “by itself” may not rise to the level of a due
process violation, we may find a due process violation where there are “plain,
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numerous, and substantial” irregularities. Id. Whether a party is denied due
process is “a question of law,” which “we review de novo.” McClendon v.
Triplett, 184 N.E.3d 1202, 1210 (Ind. Ct. App. 2022), trans. denied.
A. March 2020 Emergency, Temporary Custody Modification
[28] Mother first argues that her due process rights were violated because the trial
court restricted her custody and parenting time without an evidentiary hearing
and without written findings in the emergency custody modification order.
According to Mother, the trial court’s March 2020 order was based upon a
“short, summary hearing wherein no evidence was taken except for a brief
questioning from the GAL.” Appellant’s Br. p. 24. Mother also contends that
the trial court failed to make a written determination that Mother’s custody
would endanger the Child’s physical health and well-being or significantly
impair the Child’s emotional development.
[29] First, to the extent Mother is attacking the validity of the trial court’s temporary
custody order, we note that Mother did not seek interlocutory appeal and that
the trial court has now made a final custody determination in this case. We are
“unable to render her any effective relief,” and we find that the issue is moot.
McDaniel v. McDaniel, 150 N.E.3d 282, 292 (Ind. Ct. App. 2020), trans. denied.
Moreover, Mother agreed to a summary presentation of evidence at the
emergency hearing and, thus, has waived this issue. See D.G. v. S.G., 82 N.E.3d
342, 347 (Ind. Ct. App. 2017) (rejecting a due process violation argument where
the mother invited the error and, “[u]nder the invited error doctrine, a party
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may not take advantage of an error that she commits, invites, or which is the
natural consequence of his own neglect or misconduct”), trans. denied.
B. Delay of Final Custody Determination
[30] Next, Mother argues that the thirty-two month delay between the emergency
custody modification in March 2020 and the start of final custody hearings in
December 2022 violated her due process rights. Final hearings on Father’s
petition for modification of custody were held over five days in December 2022,
January 2023, and February 2023; thirty-two months elapsed between the
March 2020 order and the start of those final hearings. The trial court’s order
was then issued in May 2023; thus, Mother was required to have supervised
parenting time from March 2020 to May 2023—more than thirty-seven months.
[31] Indiana Code Section 31-17-2-6 provides that “[c]ustody proceedings must
receive priority in being set for hearing.” Thus, the trial court had a duty and
responsibility to timely set custody matters for hearing. This is especially true
where, as here, the trial court granted an emergency, temporary change of
custody.
[32] We addressed a similar issue in Wilcox v. Wilcox, 635 N.E.2d 1131 (Ind. Ct.
App. 1994). There, the noncustodial father obtained an ex parte temporary
change of custody, and a hearing was eventually held more than fifteen months
after the temporary custody change. The trial court then granted custody to the
father. On appeal, the mother argued that the trial court committed reversible
error by failing to give the hearing on permanent custody a priority setting.
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[33] We noted the adage that “justice delayed is justice denied” and emphasized that
“[a] prompt hearing is especially essential in a custody case where the parties
are dueling for a child’s affections and the longer a delay, the more chance one
party has to influence the child.” Wilcox, 635 N.E.2d at 1136 (quoting Brown v.
Brown, 463 N.E.2d 310, 313 (Ind. Ct. App. 1984)). “[A] delay in [a] custody
hearing may increase the chances of a custodial parent eventually being
deprived of custody. . . .” Id. (quoting Brown, 463 N.E.2d at 313). We
discussed our concerns about the delayed permanent custody hearing as
follows:
By the time the hearing was conducted, the children had lived
with Father for almost two years—a considerable amount of time
in the lives of these young children. They became firmly
entrenched in Father’s life. Mother, on the other hand, was
permitted only limited supervised visitation with her children.
She was effectively removed from the children’s lives for almost
two years before having an opportunity to be heard. Thus,
Father had ample opportunity to influence the children while
Mother was out of the picture.
Id. at 1136-37. We concluded that “the delay of fifteen months severely
prejudiced Mother’s right to a hearing on continued custody so as to deny her
procedural due process.” Id. at 1137. We reversed the trial court’s order
granting the father permanent custody and ordered that custody of the children
be returned to the mother pending further proceedings. Id.
[34] Father argues that Wilcox is distinguishable because the temporary change in
Wilcox occurred after an ex parte order while, here, Mother was granted two
Court of Appeals of Indiana | Opinion 23A-JP-2316 | August 14, 2024 Page 21 of 38
hearings and a GAL investigation before the temporary custody modification.
Mother was also given the opportunity to present evidence and cross-examine
the GAL before the restriction of her parenting time was implemented. We,
however, have significant concerns over the thirty-seven-month time period
between the temporary custody order and the permanent custody order here.
The extreme number of delays and limited, supervised contact between Mother
and the Child allowed the Child to become firmly entrenched in Father’s care,
which is evidenced by the trial court’s final custody order. The delay here
clearly prejudiced Mother.
[35] Although both parties’ behaviors contributed to the delays, the trial court was
under a statutory duty to expedite the matter. 7 Even when Mother filed
motions to set a final hearing date, the trial court denied those motions, and the
case became stale. The trial court then left it to the parties to move the case
forward, but the parties are not under the same statutory duty as the trial court.
Under these circumstances, we conclude that the extraordinary delay here
prejudiced Mother and violated her due process rights.
7
We must also acknowledge, however, that the delays were caused by the parties’ contentious behavior.
Extensive disputes regarding discovery, the GAL’s obligations, details of Mother’s supervised parenting time,
and the meaning of the initial trial court’s requirement that Mother obtain a psychological evaluation
permeated this litigation. Further delays occurred when Mother requested a change of judge. The initial trial
court judge eventually recused, and a special judge was appointed. Mother repeatedly requested a final
hearing date, which the special judge denied, but then months passed without either party requesting a
hearing on the matter or filing any pleadings.
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C. GAL’s Testimony
[36] Finally, Mother argues that the trial court violated her due process rights by: (1)
denying Mother’s request for production of documents of the GAL and request
to depose the GAL; (2) denying Mother’s request to quash the GAL’s
testimony; and (3) relying on the GAL’s testimony. 8
1. Mother Was Entitled to GAL Discovery.
[37] We look to statutory authority and the rules of trial procedure to determine if
the trial court erred. First, in general, a guardian ad litem is statutorily defined
as:
an attorney, a volunteer, or an employee of a county program
designated under IC 33-24-6-4 who is appointed by a court to:
(1) represent and protect the best interests of a child; and
(2) provide the child with services requested by the court,
including:
(A) researching;
8
Mother also argues that allowing the GAL to testify after the destruction of his investigation file and notes
was a due process violation. Indiana Evidence Rule 612(a)(1) provides: “If, while testifying, a witness uses a
writing or object to refresh the witness’s memory, an adverse party is entitled to have the writing or object
produced at the trial, hearing, or deposition in which the witness is testifying.” The trial court gave the GAL
the option of producing his notes and using them to refresh his memory or testifying without his notes. The
GAL chose to testify without his notes. The trial court’s ruling complies with Rule 612(a)(1), and we find no
due process violation.
Court of Appeals of Indiana | Opinion 23A-JP-2316 | August 14, 2024 Page 23 of 38
(B) examining;
(C) advocating;
(D) facilitating; and
(E) monitoring;
the child’s situation.
Ind. Code § 31-9-2-50. “A guardian ad litem or court appointed special
advocate shall represent and protect the best interests of the child.” Ind. Code §
31-17-6-3. The guardian ad litem is considered an “officer[ ] of the court for the
purpose of representing the child’s interests.” I.C. § 31-17-6-4.
[38] Indiana Code Section 31-17-2-12 allows the trial court to order an investigation
and report in custody proceedings, and the investigation may be performed by a
guardian ad litem. 9 Indiana Code Section 31-17-2-12 further provides:
9
Indiana Code Section 31-17-2-12(a) provides that the trial court may appoint a GAL, among others, to
perform an investigation, “[i]n custody proceedings after evidence is submitted upon the petition, if a parent
or the child’s custodian so requests . . . .” (emphasis added). There seems to be an inconsistency with the
statute, as the GAL is often appointed before evidence is submitted on a petition for modification of custody.
The parties here do not raise the issue, and we do not address it further. See, e.g., Deasy-Leas v. Leas, 693
N.E.2d 90, 94 (Ind. Ct. App. 1998) (holding that “the record does not disclose that the threshold triggering
mechanism to order an investigation and report, that is ‘custody proceedings after evidence is submitted upon
the petition,’ has been met” and concluding that “[l]acking the triggering circumstances, the statute is
inapplicable to the present circumstances”), trans. denied, abrogated on other grounds by Martin v. State, 774
N.E.2d 43 (Ind. 2002).
Court of Appeals of Indiana | Opinion 23A-JP-2316 | August 14, 2024 Page 24 of 38
(c) [T]he investigator shall make the following available to
counsel and to any party not represented by counsel:
(1) The investigator’s file of underlying data and reports.
(2) Complete texts of diagnostic reports made to the
investigator under subsection (b).
(3) The names and addresses of all persons whom the
investigator has consulted.
(d) Any party to the proceeding may call the investigator and any
person whom the investigator has consulted for cross-
examination. A party to the proceeding may not waive the
party’s right of cross-examination before the hearing.
(emphasis added). The guardian ad litem “may subpoena witnesses and
present evidence regarding: (1) the supervision of the action; or (2) any
investigation and report that the court requires of the guardian ad litem . . . .”
I.C. § 31-17-6-6. “If the court finds it necessary to protect the child’s welfare
that the record of any interview, a report, or an investigation in a custody
proceeding not be a public record, the court may make an appropriate order
accordingly.” I.C. § 31-17-2-20. Further, proceedings under Indiana Code
Chapter 31-17-2 for child custody and modification of child custody must
“comply with the Indiana Rules of Civil Procedure.” I.C. § 31-17-2-2.
[39] “Indiana’s discovery rules are designed to permit ‘liberal discovery’ in order to
provide the maximum amount of information possible to both parties as they
prepare their cases and reduce the possibility of surprise at trial.” Minges v.
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State, 192 N.E.3d 893, 897 (Ind. 2022). The Trial Rules, however, also impose
limits, and “certain material is protected from disclosure” pursuant to Trial
Rule 26(C). 10 Id. at 898.
[40] We discussed these statutory provisions and related trial rules in Deasy-Leas v.
Leas, 693 N.E.2d 90, 95 (Ind. Ct. App. 1998), trans. denied, abrogated on other
grounds by Martin v. State, 774 N.E.2d 43 (Ind. 2002). There, the guardian ad
litem filed motions to quash discovery regarding the guardian ad litem’s files
10
Trial Rule 26(C) provides:
Protective Orders. Upon motion by any party or by the person from whom discovery is sought,
and for good cause shown, the court in which the action is pending or alternatively, on matters
relating to a deposition, the court in the county where the deposition is being taken, may make
any order which justice requires to protect a party or person from annoyance, embarrassment,
oppression, or undue burden or expense, including one or more of the following:
(1) that the discovery not be had;
(2) that the discovery may be had only on specified terms and conditions, including a
designation of the time or place;
(3) that the discovery may be had only by a method of discovery other than that selected by the
party seeking discovery;
(4) that certain matters not be inquired into, or that the scope of the discovery be limited to
certain matters;
(5) that discovery be conducted with no one present except the parties and their attorneys and
persons designated by the court;
(6) that a deposition after being sealed be opened only by order of the court;
(7) that a trade secret or other confidential research, development, or commercial information
not be disclosed or be disclosed only in a designated way;
(8) that the parties simultaneously file specified documents or information enclosed in sealed
envelopes to be opened as directed by the court. If the motion for a protective order is denied in
whole or in part, the court may, on such terms and conditions as are just, order that any party or
person provide or permit discovery. The provisions of Trial Rule 37(A)(4) apply to the award of
expenses incurred in relation to the motion.
(9) that a party need not provide discovery of electronically stored information from sources that
the party identifies as not reasonably accessible because of undue burden or cost. On motion to
compel discovery or for a protective order, the party from whom discovery is sought must show
that the information is not reasonably accessible because of undue burden or cost. If that
showing is made, the court may nonetheless order discovery from such sources if the requesting
party shows good cause. The court may specify conditions for the discovery.
Court of Appeals of Indiana | Opinion 23A-JP-2316 | August 14, 2024 Page 26 of 38
and sought protective orders regarding the same. The trial court found that “no
Indiana statute or trial rule . . . imposes any confidentiality or privilege upon
the guardian ad litem/child relationship.” Deasy-Leas, 693 N.E.2d at 92. The
trial court denied the guardian ad litem’s motions, and the guardian ad litem
appealed. On appeal, we noted that “[t]he guardian is a party to the
proceedings and is subject to examination and cross-examination.” Id. at 97.
Although no statute creates a guardian ad litem/child privilege, and in
determining whether the guardian ad litem’s file is subject to discovery, we
must consider “the general statutory design and discovery rules on
confidentiality.” Id. at 95.
[41] Indiana Code Section 31-17-2-20 allows the trial court to remove certain
documents from the public record, but this provision “does not specifically
apply to discovery or to parties.” Id. Instead, the discovery rules must be
considered. We held that “a trial court may rely upon the protective powers of
T.R. 26(C) when a guardian ad litem or any other party requests
confidentiality.” Id. at 96.
2. The Trial Court’s Denial of Mother’s Discovery Requests to the
GAL Resulted in a Due Process Violation.
[42] Here, Mother requested that the GAL provide documentation of his
conversations, text messages, and emails with the parties and their attorneys,
Court of Appeals of Indiana | Opinion 23A-JP-2316 | August 14, 2024 Page 27 of 38
and the GAL refused to do so. 11 The GAL also refused to provide his personal
notes. This information was discoverable pursuant to Indiana Code Section 31-
17-2-12(c)(1) as the GAL’s “underlying data.”
[43] The GAL, however, argued that the information was not subject to discovery
due to Indiana Rule 5(D)(5) on Access to Court Records, which provides for
the exclusion from public access of: “All personal notes, organizers, or
calendars; e-mail; and deliberative material of judges, jurors, court staff, and
judicial agencies, whether recorded electronically or on paper.” 12 Although the
GAL is considered an officer of the court, the GAL is not and cannot be part of
the “court staff” subject to Rule 5(D)(5). Other than a guardian ad litem,
11
Mother relies in part upon Proposed Guardian ad Litem Guidelines Rule 3.11, which provides:
If a party so requests, the GAL must make their file available to any requesting party or their
counsel as is outlined in IC 31-17-2-12. A GAL may file a motion for a protective order under
the Indiana Trial Rules.
Commentary: Upon request, the GAL must make their GAL file available to any party or
counsel for party requesting the file as outlined in Indiana law. The GAL should produce
underlying data and reports, complete texts of diagnostic reports made to and obtained by the
GAL, and the names and contact information of all persons with whom the GAL consulted or
interviewed. Any party or counsel for a party may seek copies of this information and that party
or counsel is responsible for any costs pertaining to making such copies.
A GAL may seek a protective order to prevent disclosure of highly sensitive information in the
GAL file. A GAL may also seek orders from the court protecting the GAL file if the GAL
reasonably believes that a party is attempting to use the GAL as a vehicle to obtain information
to which the party is not entitled, or if the GAL can reasonably demonstrate that a party is
making multiple file requests in an effort to hinder the GAL’s investigation.
These proposed guidelines, however, have not yet been adopted and specifically provide: “These guidelines
have not been approved and should not be used in any official capacity.” Accordingly, we cannot consider
this proposed rule.
12
Below, the GAL erroneously relied upon Administrative Rule 9, which was repealed and replaced by
Indiana Access to Court Records Rule 5, effective January 1, 2020. The rules, however, contain similar
language. Effective January 1, 2024, Rule 5(D)(5) was amended and now provides for the exclusion from
public access of: “All personal notes, organizers, or calendars; electronic communications, including without
limitation e-mail, text messages, photographs, and all related electronic data; and deliberative material of
judges, jurors, court staff, and judicial agencies, whether recorded electronically or on paper.”
Court of Appeals of Indiana | Opinion 23A-JP-2316 | August 14, 2024 Page 28 of 38
multiple persons are considered officers of the court but clearly are not
considered court staff. See, e.g., B & L Appliance & Servs., Inc. v. McFerran, 712
N.E.2d 1033, 1037 (Ind. Ct. App. 1999) (noting that members of the bar are
officers of the court); State ex rel. Dep’t of Fin. Insts. v. Kaufman, 30 N.E.2d 978,
980 (Ind. 1941) (noting that a personal representative is regarded as an officer of
the court); Towne & Terrace Corp. v. City of Indianapolis, 156 N.E.3d 703, 716
(Ind. Ct. App. 2020) (noting that a receiver is an officer of the court), trans.
denied. Father cites no authority that the GAL is “court staff” merely because
the GAL is an officer of the court.
[44] The information at issue here was discoverable pursuant to Indiana Code
Section 31-17-2-12; further, the parties cite no relevant authority that the GAL
could not be deposed. We have not been provided with the transcript of the
hearing regarding the discovery dispute, and we are unable to ascertain the
basis for the trial court’s decision to deny Mother’s discovery requests. Under
these circumstances, we conclude that the trial court abused its discretion by
denying Mother’s request for discovery from the GAL, and Mother’s due
process rights were violated.
II. Grant of Father’s Petition to Modify Custody
[45] Next, Mother challenges the trial court’s grant of Father’s petition to modify
custody. Indiana Code Section 31-14-13-6 requires the party seeking to modify
an existing custody order to prove that: (1) modification is in the best interests
of the Child; and (2) there has been a substantial change in one or more of the
Court of Appeals of Indiana | Opinion 23A-JP-2316 | August 14, 2024 Page 29 of 38
factors set forth in Indiana Code Sections 31-14-13-2 or 31-14-13-2.5. 13 The
factors set forth in Indiana Code Section 31-14-13-2 (“Section 2”) are:
(1) The age and sex of the child.
(2) The wishes of the child’s parents.
(3) The wishes of the child, with more consideration given to the
child’s wishes if the child is at least fourteen (14) years of age.
(4) The interaction and interrelationship of the child with:
(A) the child’s parents;
(B) the child’s siblings; and
(C) any other person who may significantly affect the
child’s best interest.
(5) The child’s adjustment to home, school, and community.
(6) The mental and physical health of all individuals involved.
(7) Evidence of a pattern of domestic or family violence by either
parent.
13
Indiana Code Section 31-14-13-2.5 applies only when the trial court finds by clear and convincing evidence
that the child has been cared for by a de facto custodian, which is inapplicable in this case.
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(8) Evidence that the child has been cared for by a de facto
custodian, and if the evidence is sufficient, the court shall
consider the factors described in section 2.5(b) of this chapter.
In making a child custody determination under Section 2, a trial court “shall”
consider “all relevant factors,” including each factor listed above. I.C. § 31-14-
13-2; see also In re of Paternity of A.R.S., 198 N.E.3d 423, 430-31 (Ind. Ct. App.
2022).
[46] Our Courts have long held that evidence of improvement of a child’s condition
during a temporary change of custody cannot be the basis of a substantial
change in one of the above factors. See Joe v. Lebow, 670 N.E.2d 9 (Ind. Ct.
App. 1996). In Joe, we held:
[T]o . . . permit permanent custody to be transferred to that
parent based upon evidence of “improvement” in the child’s
condition while in that parent’s temporary care, might tend to
encourage noncustodial parents to bring such petitions not on
their merits, but as a conduit to obtain temporary custody of a
child, then present evidence of such “improvement” as a “back-
door” way of relitigating the initial custody determination. . . .
Thus, we hold that the “substantial change” necessary to support
a modification of custody may not be premised upon evidence of
improvement in a child’s condition while that child has been in
the temporary custody of a noncustodial parent.
Id. at 22 (footnote omitted). A child’s improving condition, however, may be
part of a trial court’s consideration of the child’s best interests. Id. at 23.
[47] Here, the trial court found the following substantial change:
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[T]he Court FINDS that factor (5)--the child’s adjustment to
home, school and community is a substantial and continuing
change in circumstances as the minor child has resided solely
with Father since March of 2020 with Mother only having
minimal parenting time. This substantial and continuing change
in circumstances was directly caused by another substantial
change listed under factor (7) that occurred around March 2020,
when Mother was in a domestic violence relationship with her
prior husband for years--an extended period of time. This has
caused a substantial and continuing detrimental effect as well on
factor (6)--Mother’s mental health, which ultimately affected her
ability to safely and properly parent and be a full 50/50 joint
custodian at that time. The substantial changes in Mother’s
mental health due to the pattern of domestic violence were
continuing as well until she eventually ended the relationship
with her prior husband after over three (3) years.
Appellant’s App. Vol. II p. 46.
[48] First, as in Joe, the trial court erred by using the fact that the Child resided with
Father since March 2020 pursuant to Father’s emergency petition as a
substantial change in one of the Section 2 factors. The extraordinary delays
here allowed the Child to become “firmly entrenched” in Father’s life. Wilcox,
635 N.E.2d at 1136. The trial court, thus, abused its discretion by using the
Child’s adjustment to Father’s home as a substantial change to warrant a
modification of custody.
[49] Accordingly, we examine the rest of the trial court’s finding to determine if the
trial court identified any other substantial change. The domestic violence
referred to in the finding began shortly after Mother’s January 2020 wedding
and ended in March 2020, when Mother and Alexander separated, and the trial
Court of Appeals of Indiana | Opinion 23A-JP-2316 | August 14, 2024 Page 32 of 38
court’s custody order was entered in May 2023. The domestic violence was no
longer an issue and had not been an issue for three years.
[50] We note that the trial court’s finding is clearly erroneous regarding the length of
Mother’s relationship with Alexander, her former husband. The evidence
showed that Mother began relationship with Alexander in 2019; they married
in January 2020; the abuse began shortly after the marriage; the marriage was
annulled in 2020; and Mother obtained a protection order against Alexander in
March 2020. Mother was not “in a domestic violence relationship with her
prior husband for years,” and this finding is clearly erroneous. Appellant’s
App. Vol. II p. 46. Likewise, the finding that Mother “eventually ended the
relationship with her prior husband after over three (3) years,” is clearly
erroneous. Id. Father concedes that this portion of the finding is clearly
erroneous.14 See Appellee’s Br. p. 38.
[51] Likewise, the trial court mentioned that Mother’s mental health suffered as a
result of the domestic violence. Earlier in its order, the trial court found that
“Mother has had prior issues with mental health, specifically concerning the
relationship with her prior husband and has received treatment from multiple
mental health treatment providers to improve her stability.” Appellant’s App.
Vol. II p. 45. No evidence, however, was presented of ongoing severe mental
14
Mother’s swift and successful resolution of the domestic violence is commendable.
Court of Appeals of Indiana | Opinion 23A-JP-2316 | August 14, 2024 Page 33 of 38
health issues or substance abuse issues that would constitute a substantial
change in one of the Section 2 factors.
[52] Under these circumstances, we conclude that the trial court clearly erred by
granting Father’s petition to modify custody. The trial court improperly used
temporary, already resolved, circumstances in Mother’s life and the
extraordinary delays in this case to find a substantial change. We conclude that
the trial court failed to identify a valid substantial change in one of the Section 2
factors and, thus, erred by granting Father’s petition for modification of
custody. Accordingly, despite the substantial deference that we give the trial
court in custody matters, we must reverse.
Conclusion
[53] Mother fails to demonstrate that her due process rights were violated by the
emergency temporary change of custody. We, however, conclude that
Mother’s due process rights were violated by the extraordinary delays in
conducting the final custody hearings and the trial court’s denial of Mother’s
discovery requests to the guardian ad litem. Moreover, Mother has
demonstrated that the trial court failed to identify a valid substantial change in
one of the Section 2 factors.
[54] The trial court erred by granting Father’s petition for modification of custody,
and we must reverse and remand. Because we reverse the trial court’s final
determination, we return the parties to their joint legal and physical custody
Court of Appeals of Indiana | Opinion 23A-JP-2316 | August 14, 2024 Page 34 of 38
agreement, which was in effect before the temporary emergency custody order
was entered.
[55] Reversed and remanded.
Bradford, J., concurs.
Crone, J., dissents with separate opinion.
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Crone, Judge, dissenting.
[56] I agree with the majority that Mother’s challenge to the March 2020 emergency
custody modification order is both moot and waived and that Mother had a
right to seek the discovery that she requested from the GAL. But that is where
my agreement with the majority ends.
[57] Regarding the interval between the emergency custody modification order and
the start of final custody hearings, I find it significant that after the trial court set
the final hearing dates in September 2022, Mother agreed to vacate the
November hearing date to “allow the parties to continu[e] working toward a
resolution.” Appellant’s App. Vol. 2 at 22. If Mother truly believed that time
was of the essence, she should not have acquiesced to any postponement.
Moreover, far from being prejudiced by the delay, Mother was given an
opportunity to get her life in order and establish her fitness for reinstatement of
joint custody. Also, I fail to see how Mother was harmed by the trial court’s
denial of her discovery requests, given that the GAL testified without using his
notes or a summary thereof and Mother was able to fully cross-examine him. 15
[58] Finally, I believe that the majority has improperly substituted its judgment for
the trial court’s in overturning the custody modification. If a trial court’s
custody determination is supported by substantial evidence, we will not disturb
15
The majority states that “[t]he record does not indicate whether the GAL was an attorney.” Slip op. at 10
n.3. At the hearing, the GAL recited his “education background[,]” which culminated with a “bachelor’s
degree in business.” Tr. Vol. 2 at 120.
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it, “even though we might have reached a different conclusion if we had been
the triers of fact.” In re Marriage of Richardson, 622 N.E.2d 178, 179 (Ind. 1993)
(quoting Meehan v. Meehan, 425 N.E.2d 157, 161 (Ind. 1981)). There is no
indication that Father obtained temporary custody of Child with the goal of
presenting evidence of Child’s “‘improvement’ as a ‘back-door’ way of
relitigating the initial custody determination.” Joe, 670 N.E.2d at 22. Rather,
the record indicates that the emergency custody modification was prompted by
legitimate concerns regarding Mother’s mental health and substance abuse
issues and domestic violence, which reportedly occurred in Child’s presence.
[59] Regardless, as the majority acknowledges, a child’s improving condition “may
be part of a trial court’s consideration of the child’s best interests.” Slip op. at 31
(citing Joe, 670 N.E.2d at 23). And here, the trial court determined that
modifying the original custody arrangement was in Child’s best interests.
Although I might have reached a different conclusion if I had been the trier of
fact, I am disinclined to reverse the ruling of “the trial judge, who saw the
witnesses, observed their demeanor, and scrutinized their testimony as it came
from the witness stand[.]” Steele-Giri, 51 N.E.3d at 124. Therefore, I respectfully
dissent.
ATTORNEYS FOR APPELLANT
Trisha S. Dudlo-McCracken
Derrick W. McDowell
Dentons Bingham Greenbaum LLP
Evansville, Indiana
Court of Appeals of Indiana | Opinion 23A-JP-2316 | August 14, 2024 Page 37 of 38
ATTORNEY FOR APPELLEE
Lisa B. Harris
Long Law Office, P.C.
Boonville, Indiana
Court of Appeals of Indiana | Opinion 23A-JP-2316 | August 14, 2024 Page 38 of 38