In re the Paternity of A.H., Minor Child, D.H. v. K.M. (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Sep 30 2019, 9:13 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT
Thomas J. Gaunt
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In re the Paternity of A.H., September 30, 2019
Minor Child, Court of Appeals Case No.
19A-JP-442
D.H.,
Appeal from the Johnson Circuit
Appellant, Court
v. The Honorable Michael T. Bohn,
Judge
K.M., The Honorable Andrew S.
Roesener, Judge
Appellee.
Trial Court Cause No.
41C01-1703-JP-44
Brown, Judge.
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[1] D.H. (“Father”) appeals from the order of the trial court regarding the custody
of A.H. Father raises one issue which we revise and restate as whether the
court erred in granting joint physical custody and in granting K.M. (“Mother”)
legal custody. We affirm.
Facts and Procedural History
[2] Father and Mother began dating in November 2015. In January 2016, Mother
learned she was pregnant. In February 2016, Father and Mother moved in
together at the house of Father’s grandmother. Mother gave birth to A.H. on
August 31, 2016. In December 2016, Mother told Father they were no longer a
couple, but they continued to cohabitate.
[3] On March 14, 2017, Mother took A.H. to Dr. Christina Fox for a wellness visit.
The report of Dr. Fox’s progress notes states: “Current concerns at this visit
include concern that bruises on [A.H.] came from [Father who] said it was from
her toy but [Mother does not] believe it . . . .” Petitioner’s Exhibit C (some
capitalization omitted). The report also states: “Circular bruise on left cheek
with some pooling toward the mouth. ‘pinch’ style bruise on left arm just above
elbow, fainter bruising on right back by hip.” Id. Later that month, Mother
moved to Michigan with A.H. On March 23, 2017, Father filed a petition to
establish paternity of A.H.
[4] An Assessment of Alleged Child Abuse or Neglect by the Indiana Department
of Child Services (“DCS”) dated June 2017 indicated that Michigan Child
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Protective Services made an unannounced visit to Mother’s home on March 27,
2017, as a courtesy for DCS and observed the home to be appropriate and did
not note any new bruising. The assessment also contained the following
concluding statement:
Physical abuse, specifically bruises/cuts/welts and child neglect,
specifically environmental life/health endangering are
substantiated against [Father] and [Mother] as to [A.H.].
[Father] maintains that he was there with [A.H.] when she got
the bruise on her cheek, however his explanation for the bruise is
not consistent with the bruising. [A.H.] spent most of the time
prior to the other bruises with [Mother], giving her the most
opportunity to cause the injuries. With both parents stating that
they felt that there were concerns for the other prior to the
assessment, they have both exposed the child to unsafe
conditions in the home.
Petitioner’s Exhibit D.
[5] On June 22, 2017, the court held a hearing at which it indicated that the orders
it would issue that day were going to be temporary in nature except for the issue
of paternity. After hearing from Father and Mother, the court stated: “I’m
going to leave primary physical and sole legal custody with [Mother] for now.
This is going to be very difficult moving forward. Just because I’m doing this
today doesn’t mean I’m not going to give [Father] physical custody ultimately.”
Transcript Volume II at 16. The court stated: “I don’t know that this is perfect,
but the fairest way I can think to do it is like every third week [Father] gets a
week of time with [A.H.].” Id. The court ordered the parties to participate in
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mediation and that Mother “provisionally has primary physical and sole legal.”
Id. at 20.
[6] On July 11, 2017, the court entered an order establishing Father as the legal and
biological father of A.H. and ordering that Mother have primary physical
custody and sole legal custody. The court also ordered that Father have
parenting time as follows: “One week long visit on the third (3rd) week of each
month. Father’s first visit shall commence July 2, 2017 at 12:00 p.m. and
concluding July 9, 2017 at 12:00 p.m.” Appellant’s Appendix Volume II at 71.
[7] On October 12, 2017, the court held a status conference. In support of her
motion for change of venue, Mother stated that she lived in Michigan, went to
her mother’s home where she grew up, and had a life established with school
and playdates for A.H. The court denied her request for change of venue.
[8] On November 2, 2017, Mother petitioned for a personal protection order
against Father in a Michigan trial court, and the court denied the petition on
November 30, 2017.
[9] On April 9, 2018, Guardian ad Litem Andrew Woods (“GAL Woods”) filed a
report which stated the following under the heading summary and
recommendation:
This is a difficult case. I have concerns about the issue of
bruising on [A.H.]. Both Dr. Fox and Dr. Thompson observed
bruising on [A.H.]. Dr. Thompson’s report clearly identifies the
bruising as non-accidental. Further, Dr. Thompson opines that
[A.H.] is at high risk for continued injury without intervention of
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some sort. The DCS investigation consisted of interviews with
both parents, review of the medical records and the involvement
of the Greenwood Police Department. Neglect/abuse was
substantiated against both parents. A CHINS case was not filed.
Both parents point to the other as the culprit. Father believes
that Mother inflicted the injuries in part to give her an excuse to
leave Indiana and move to Michigan. Mother describes a pattern
of inappropriate and rough parenting by Father to support her
contention that he caused the injuries. The authorities involved
apparently didn’t have enough evidence to move forward. What
is left are a number of questions without answers. Each parent
provided conflicting stories buttressed by witness accounts. Each
parent did their best to convince me that the other was at fault.
In the end, I can’t render an opinion one way or the other based
upon the information provided.
I’m troubled by Mother’s sudden departure. She left Indiana
abruptly relating that it was to get away from [Father] and the
bruising he caused to [A.H.]. However, by all accounts Mother
left [A.H.] alone with Father for periods of time prior to her
move to Michigan. If Father caused the injuries to [A.H.],
leaving him alone with her was a lapse in judgment on Mother’s
part. I have no doubt the parties’ relationship was troubled.
They strike me as quite different people. However, Mother made
a choice to leave the state and then did not allow Father access to
[A.H.] for a long period of time. Mother’s attempt to file a
protective order in Michigan belies [sic] her efforts to keep Father
from having a relationship with [A.H.]. Mother mentioned that
the move was in part to escape [Father], but she seems to have
little appreciation for how that distance would impact Father’s
ability to parent [A.H.].
Mother has lived in Michigan for over a year. She has done little
to stabilize a life for [A.H.] by obtaining full-time employment
and a permanent home outside of maternal grandmother’s
residence. While not critical of co-habitation with extended
family members, I’m worried for [A.H.] that Mother has failed to
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demonstrate an ability to support and maintain a home that
provides permanency for [A.H.].
Father is not without his flaws. I tend to agree with Jessica[]
Powers[’s] description of Father as having an “intense
personality.” He persisted to text Mother on a daily basis asking
about [A.H.’s] welfare after Mother asked him to stop. Mother’s
friends at Pets Smart [sic] both noted Father’s demeanor in an
unfavorable manner which, in part, supports Mother’s
complaints that Father was controlling and authoritative in their
relationship. Many of Father’s text messages to Mother were
critical of the manner in which she addressed or failed to address
[A.H.’s] medical issues. I have concerns that if awarded primary
custody of [A.H.] he will discount input by Mother.
Father demonstrates more stability than does Mother. He has a
full-time job he appears to enjoy. He has a goal to someday
manage the department where he works. He has his own home
and maintains this household. Father is organized and presents a
plan for [A.H.] if she were to live with him on a more permanent
basis.
[A.H.] is clearly loved by both parents. Presently [A.H.] travels
approximately 8 hours twice a month so she can spend time with
Father. This is troublesome. It’s a long drive for such a young
child, with no clear solution other than awarding one parent
custody with the other parent having diminished time with their
daughter. The Court can maintain the current arrangement, but .
. . a more definitive decision will need to be rendered once [A.H.]
starts school.
Ideally, if distance weren’t such a factor, I’d recommend a shared
parenting model with the parties utilizing a co-parenting app to
assist in resolution of disputes. However, that is not the reality of
the current situation. This is such a close call, I’m reluctant to
recommend either parent as a distinct candidate for primary
physical custody. They both have their strengths and
weaknesses. Based upon the information available if I were
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forced to choose, I think Father can provide a more stable and
structured home for [A.H.] at this point. This recommendation
is tempered. If Father demonstrates behavior that proves
alienating of Mother’s relationship with [A.H.], then the issue of
physical custody should be reviewed. While I empathize with
Mother’s departure and understand her reasoning for the same, it
was rash and without forethought.
GAL Exhibit 1.
[10] On January 4, 2019, the court held a hearing. Father appeared with counsel,
and Mother appeared pro se. The court stated: “So we are set for basically final
hearing on that provisional order.” Transcript Volume II at 43. Mother
objected to the admission of the GAL’s report on hearsay grounds and because
she disagreed with the outcome. The court admitted the report over Mother’s
objection.
[11] Father testified that he worked at Costco Wholesale as a tire installer and part-
time supervisor, graduated from Greenwood Community High School, lived in
Greenwood, and exercised parenting time since the matter was commenced.
He testified that the distance between his residence and Mother’s residence was
about 470 miles and it took about eight and one-half hours “[f]rom door to
door.” Id. at 47.
[12] He testified that Mother said something on March 10, 2017, about being
extremely angry. He stated that A.H. fell over two days later and hit her face
on an activity cube toy resulting in a small bruise on her cheek, that Mother
took A.H. to a doctor on March 14th for a wellness visit, and that he discovered
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CPS paperwork, the doctor’s report, and domestic violence paperwork in the
diaper bag later that day. He stated that, when he left for work that morning,
A.H. had one bruise on her cheek from when she fell and that she had five
bruises by the time he found the paperwork. He also detailed his difficulties in
using Skype to communicate with A.H. when she was with Mother. He
testified that A.H. had twenty-six yeast infections since parenting time began,
that he thought there was a continuing problem with diapering and cleanliness
of A.H., and that he brought the yeast infections to a doctor’s attention ten to
fifteen times. When asked if there was ever an occasion where he saw A.H.
injured or harmed by Mother as a result of her carelessness or negligence, he
answered: “That I witnessed? No.” Id. at 75. Father testified that there was
plenty of risk of harm and stated: “Leaving [A.H.] unbuckled in car seats while,
you know, sitting in a place, or leaving her unbuckled in a swing, leaving her
unbuckled in her bouncing chair, an infant bouncing chair, which is one that
they’re laying in, so they bounce up and down in.” Id. at 76. He denied ever
shaking A.H. or muffling her crying. He stated that Mother informed him on
March 21st that she was moving to Michigan with A.H. the following day and
that he filed a petition for custody two days later. He testified that he rents his
home in Greenwood and intends to become a homeowner. He indicated he
had concerns about Mother including forgetting to provide A.H. medications or
change her diaper and “just kind of benign neglect.” Id. at 57.
[13] Father’s sister testified that she watched A.H. five days a week when Mother
and Father were living together and that she would be available to help care for
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A.H. if Father was awarded custody. She testified that she observed a few
occasions when Mother was unsafe with A.H. such as when A.H. was not
buckled into her swing. She stated that Mother told her that she forgot to
buckle A.H. into her car seat and when they arrived home A.H. “flipped out of
the car seat” and landed on the concrete porch. Id. at 92. She testified that she
never heard Mother say that she was afraid of Father’s care. She also stated
that she did not think Mother changed A.H.’s diaper as frequently as she should
have. On cross-examination, she indicated that she remembered offering her
house to Mother “for refuge if anything happened at [Mother’s] home.” Id. at
98. On redirect examination, she stated that she made the offer when Mother
and Father “weren’t getting along.” Id. at 99.
[14] Jonathan Goens testified that he worked with Mother at PetSmart for some
time and became friends with Father. He stated that there had been times
where Mother seemed distracted and that Father usually cared for A.H.
Marcus Guido testified that he was in a romantic relationship with Mother for
approximately a year and that Mother blindsided him on the temple on one
occasion. He also stated that Mother “made the comment that raising a child is
no different than raising a dog, trying to make the comparison with raising a
child to that of an animal needing food and needing water, needing to go
outside to go to the bathroom, the basic needs of a dog or a cat.” Id. at 112. On
cross-examination, he denied that his cheating on Mother ended their
relationship and when asked, “You don’t remember kneeling then and begging
me to punch you,” he answered: “No, I really don’t.” Id. at 114.
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[15] Jennifer Dresslar, Father’s friend, testified that Father was a great dad and that
she went with him to pick up A.H. on occasions and observed that A.H. had
dirt underneath her nails, smelled bad, wore dirty clothes, and had a yeast
infection almost every time they picked her up. She stated that Mother was
always pleasant but seemed to ignore Father when he wanted to bring things to
her attention.
[16] Mother testified that she just started a business, A.H. was in school, she and
A.H. have their own apartment, A.H. has a play group on Thursdays, she is
with A.H. every night, and A.H. has a very reliable daycare center, a dentist,
and a primary physician. She stated that Father sent a text message which
stated: “I think you’d be a great mom. Believe me, out of the two of us, I’m the
one who shouldn’t be a parent.” Id. at 127. She stated: “I do believe that me
having full custody is in her best interests, and I pray the Court has that interest
as well.” Id. at 128. On cross-examination, she acknowledged that there was
one occasion when A.H. fell onto pavement because she forgot to buckle her
into her car seat.
[17] On February 1, 2019, the court entered an order awarding Mother and Father
joint physical custody and appointing Mother as the sole legal custodian. The
order states:
FINDINGS OF FACT
*****
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14. Since the provisional order was established, Father has
regularly exercised his court ordered parenting time.
15. Mother currently resides in Lincoln, Michigan. Lincoln is
approximately 470 miles from Father’s home in Indiana and it
takes around 8 hours to travel from Father’s home to Mother’s
home.
16. The parties have used a half-way point to meet for the
exchange of [A.H.].
*****
19. [A.H.] is set to start pre-school in April of 2020.
20. Father was ordered to pay thirty dollars ($30.00) per week
pursuant to the Court’s July 11, 2017 Order Establishing
Paternity and Provisional Orders Concerning Custody, Parenting
Time and Child support.
21. Father is currently employed at Costco as an installer and
part time supervisor. Father’s weekly income is $590 per week.
22. Mother is currently self-employed. She has recently started
her own pet grooming service. Mother’s weekly income through
her new business is approximately $233.00 per week.
23. The Court finds that Mother is capable of full-time
employment and imputes $290.00 per week in income for
purposes of a child support calculation.
24. Mother currently pays $100 per week for work-related child
care expenses. Father currently pays $45 per week for work-
related child care expenses.
25. Father filed three separate contempt petitions against Mother
alleging that she 1) failed to follow the procedures in I.C. 31-17-
2.2-1(b)(4) and (5) with respect to a relocation; 2) failed to allow
Father an opportunity for additional parenting time pursuant to
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the provisions of the Indiana Parenting Time Guidelines; and 3)
failed to allow reasonable visitation via Skype.
26. The “Third Motion to Amend Contempt” also sought relief
from Mother’s habitual non-compliance with pick-up/drop-off
times.
CONCLUSIONS OF LAW
*****
6. The Court gives great weight to the report and
recommendations of the GAL. Specifically, the GAL’s
recommendation for a shared parenting model if distance were
not a factor.
7. Additionally, the GAL correctly noted that since [A.H.] is not
currently in school, the Court can maximize the parenting time
of each parent before needing to make a more permanent
decision on physical custody.
8. The current parenting schedule has Mother exercising two
weeks of parenting time followed by one week of parenting time
for Father.
9. It is apparent that both Father and Mother love [A.H.] and
seek to have primary physical custody of her.
10. The Court finds that it is in [A.H.’s] best interest to for [sic]
the parents to share physical custody of the child. The parenting
schedule shall be modified to allow each parent two consecutive
weeks of parenting time.
11. The Court takes into consideration the GAL’s concerns with
the distance between the parties in making this parenting time
determination. The Court finds that a weekly car trip of
approximately eight hours would not be in the child’s best
interest.
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12. However, the Court understands that given the age of
[A.H.], and that she has bonded with both parents, it is important
that she maintain regular weekly contact with each parent while
in the custody of the other.
13. The parties have attempted to utilize parenting time via
Skype with limited success. The major problem after reviewing
the exhibits introduced into evidence, from the Court’s
perspective, is lack of a definite day and time for the Skype
sessions to take place.
14. The Court orders the parties participate in Skype parenting
time on each and every Tuesday and Thursday at 7:30 p.m. for a
period of fifteen (15) minutes.
*****
16. It is apparent from the communications entered into
evidence through the various exhibits that the parents are not
willing and able to communicate in advancing the child’s welfare
as contemplated in I.C. 31-14-13-2.3(c).
17. Additionally, the parents live approximately eight hours
apart making everyday communications regarding issues . . .
related to school, religion, and medical decisions more difficult.
18. Leading up to the final hearing, Mother has exercised
primary legal custody of [A.H.].
19. Father has taken initiative in having [A.H.] seen by her
pediatrician in Indiana and has sought medical treatment for the
reoccurring yeast infections suffered by [A.H.].
20. Mother has sought medical treatment for [A.H.] in Michigan
and has taken the steps to have her enrolled in pre-school.
21. The Court does not find the parents to be suitable individuals
to share joint legal custody of [A.H.] given the difficulty in
communication between the parties and the distance between
their respective residences.
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22. The Court awards Mother sole legal custody of [A.H.].
*****
24. Based on the evidence presented at trial, the Court does not
find that Mother has willfully violated the prior orders of this
Court as alleged by Father.
25. The Parties are admonished that they should make great
efforts to arrive on time for all future parenting time exchanges.
26. The Court finds that the GAL recommendation of a co-
parenting application would greatly assist the Court and parties
in [] future contempt issues regarding parenting time.
JUDGMENT
1. Mother and Father are awarded joint physical custody of the
minor child. Each parent shall enjoy two continuous weeks of
parenting time with the pick-up/drop-offs to occur on Saturdays
at the half-way point previously decided on by the parties.
2. Father’s first full two weeks of parenting time shall occur on
his first visit after the issuance of this order.
3. The parties are ordered to allow Skype parenting time to occur
each and every Tuesday and Thursday at 7:30 p.m. for a period
of at least fifteen (15) minutes unless otherwise modified by
agreement.
4. Mother shall be the sole legal custodian of [A.H.].
5. Father is ordered to continue to pay $30 per week in child
support. Based on the figures presented, the Court does not find
a 20% deviation to allow for a child support modification. (For
purposes of calculating the child support obligation, the Court
reduced the weekly work-related child care expense paid by each
parent by one-half since the child is in the other parent’s care for
one-half of the year.)
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6. Weekly support payments (and the annual child support
administrative fees as required by the Indiana Code) shall be paid
by Father . . . .
7. The parties shall split the uninsured medical expenses with
Father paying sixty-seven percent (67%) and Mother paying
thirty-three percent (33%) of all uninsured medical, dental,
orthodontic, ophthalmologist, and pharmalogical expenses.
8. Father shall claim the minor child as a dependent for state and
federal tax purposes commencing in 2019 (for taxes paid during
calendar year 2018) and each even numbered year thereafter.
Mother shall claim the child in all odd numbered years.
*****
9. The parties are ordered to use OurFamilyWizard.com, or an
alternate parenting app agreed upon by the parties, for all
communications regarding the scheduling and implementation of
parenting time.
Appellant’s Appendix Volume III at 94-103.
Discussion
[18] Before addressing Father’s arguments, we note that Mother did not file an
appellee’s brief. When an appellee fails to submit a brief, we do not undertake
the burden of developing arguments, and we apply a less stringent standard of
review, that is, we may reverse if the appellant establishes prima facie error.
Zoller v. Zoller, 858 N.E.2d 124, 126 (Ind. Ct. App. 2006). This rule was
established so that we might be relieved of the burden of controverting the
arguments advanced in favor of reversal where that burden properly rests with
the appellee. Wright v. Wright, 782 N.E.2d 363, 366 (Ind. Ct. App. 2002).
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[19] The issue is whether the trial court erred in granting joint physical custody and
in granting Mother legal custody. Father asserts that he provided extensive
testimony about his love and care for A.H. and his employment. He also points
to the testimony of his witnesses and the GAL report. He asserts that Mother’s
income of $232 on her child support worksheet is not well-founded. He
contends that he is cooperative, generated the initiative in Skyping, and
attempts to reschedule Mother’s missed Skype appointments.
[20] A trial court’s findings control as to the issues they cover, and a general
judgment will control as to the issues upon which there are no findings. Yanoff
v. Muncy, 688 N.E.2d 1259, 1262 (Ind. 1997). When a trial court has made
findings of fact, we apply the following two-tier standard of review: whether the
evidence supports the findings of fact, and whether the findings of fact support
the conclusions thereon. Id. Findings will be set aside if they are clearly
erroneous. Id. Findings are clearly erroneous only when the record contains no
facts to support them either directly or by inference. Id. A judgment is clearly
erroneous if it applies the wrong legal standard to properly found facts. Id. To
determine that a finding or conclusion is clearly erroneous, our review of the
evidence must leave us with the firm conviction that a mistake has been made.
Id. A general judgment entered with findings will be affirmed if it can be
sustained on any legal theory supported by the evidence. Id.[21] A trial court’s custody determination is afforded considerable deference as it is
the trial court that sees the parties, observes their conduct and demeanor, and
hears their testimony. Kondamuri v. Kondamuri, 852 N.E.2d 939, 945-946 (Ind.
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Ct. App. 2006). Thus, on review, we will not reweigh the evidence, judge the
credibility of witnesses, or substitute our judgment for that of the trial court. Id.
at 946. We will reverse the trial court’s custody determination only if it is
clearly against the logic and effect of the facts and circumstances or the
reasonable inferences drawn therefrom. Id.[22] The standard for an initial custody determination is set forth in Ind. Code § 31-
14-13-2, which provides:
The court shall determine custody in accordance with the best
interests of the child. In determining the child’s best interests,
there is not a presumption favoring either parent. The court shall
consider all relevant factors, including the following:
(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.
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(7) Evidence of a pattern of domestic or family violence by
either parent.
(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.
[23] The record reveals that GAL Woods indicated that he would recommend a
shared parenting model if distance were not a factor. While his report stated
that if he “were forced to choose” he thought Father could provide a more
stable and structured home, it also stated that “[t]his recommendation is
tempered,” that this case is such a close call he was reluctant to recommend
either parent as a distinct candidate for primary physical custody, both parents
have their strengths and weaknesses, he had concerns if Father were awarded
primary custody that he would discount input by Mother, and that it was a
difficult case. GAL Exhibit 1. The Assessment of Alleged Child Abuse or
Neglect dated June 2017 indicated that Michigan Child Protective Services
observed that A.H. did not have any new bruising during an unannounced visit.
The court was able to hear the witnesses including Mother’s testimony that she
had started a business, A.H. was in school, she and A.H. had their own
apartment, and A.H. had a very reliable daycare center, a dentist, and a
primary physician. Based upon the evidence as set forth above and in the
record, we conclude that the trial court’s findings and conclusions are not
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clearly erroneous and that the court did not err in granting joint physical
custody to Mother and Father and in granting Mother legal custody. 1
[24] For the foregoing reasons, we affirm the judgment of the trial court.
[25] Affirmed.
Altice, J., and Tavitas, J., concur.
1
To the extent Father asserts that Mother’s income of $232 on her child support worksheet is not well-
founded, we note that the trial court used a weekly gross income amount of $290 for Mother in calculating
his support obligation.
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