In Re: the Paternity of D.Y.E., M.D. (Father) v. A.G. (Mother) (mem. dec.)

MEMORANDUM DECISION
Feb 03 2015, 8:41 am
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.
ATTORNEY FOR APPELLANT
Adam J. Sedia
Rubino, Ruman, Crosmer & Polen
Dyer, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In Re: the Paternity of D.Y.E. February 3, 2015
Court of Appeals Cause No.
M.D. (Father), 64A03-1408-JP-289
Appellant, Appeal from the Porter Circuit Court
The Honorable Mary R. Harper,
v. Judge
The Honorable Gwenn
Rinkenberger, Maigstrate
A.G. (Mother), Cause No. 64C01-1307-JP-671
Appellee
Friedlander, Judge.
[1] After Father’s paternity of P.D. was established, the trial court entered an order
establishing custody, support, and parenting time. Father appeals the portion of
the order regarding parenting time. He presents the following consolidated and
restated issue on appeal: Did the trial court err when it ordered a short period
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of supervised parenting time before Father could exercise parenting time
pursuant to the Indiana Parenting Time Guidelines (the Guidelines)?
[2] We affirm.
[3] P.D. was born in April 2012, and Father lived with Mother and P.D. until June
2013. On July 19, 2013, Mother filed a petition to establish paternity, custody,
support, and parenting time. Father apparently left the State around September
to attend to personal issues and did not return until April 2014. Father did not
see P.D. during this time.
[4] At the initial hearing on April 10, 2014, Father requested DNA testing, which
the trial court ordered at Father’s expense. The day before the scheduled
testing, Father withdrew his request. He stipulated to paternity at the
subsequent hearing on May 21, 2014 and stipulated that Mother should have
custody of P.D. On that date, the court entered a provisional custody and
support order. The parties and the court also addressed interim parenting time,
and the court indicated that it would approve supervised parenting time at
Family House to help reintroduce Father and P.D.1
1
At the conclusion of the hearing and after setting the next hearing date, the court stated:
In the meantime if the parties are willing or able of trying to work together I would
suggest it in terms of, you know, go to Family House, have an independent person tell
everybody how it works and then you’ll be closer to unsupervised. Because Court is
inclined to, I’m not saying that I – I just usually do not disregard the, ah, what mothers
want or think are in the best … in the best interest of their children. I’m not saying I
listen to them carte blanche but I give mothers great weight because they’re mothers.
Transcript at 37.
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[5] The parties appeared for the final hearing on July 24, 2014 and stipulated that
parenting time was the only remaining issue.2 Since the previous hearing,
Father had arranged for and had only one visit at Family House, which was
two days prior. Due to the length of time Father had gone without being in his
son’s life, Mother asked the court to order consistent, supervised parenting time
at Family House twice a week for six weeks to allow P.D. to become
reacquainted with Father. Parenting time pursuant to the Guidelines would
then follow. Mother also asked that if Father wanted to bring his eight-year-old
son with him to Family House, Father arrange additional visits during the six-
week period. Father, through counsel, responded that he did not “have a
problem conducting phase-in visitation at the Family House” but requested the
court to consider the cost and number of visits. Transcript at 53.
[6] With respect to parenting time, the court’s order provided:
6. That the Court finds that Father did not avail himself of the
supervised parenting time that has been available to him for the last 10
weeks and, therefore, orders that Father shall have parenting time with
[P.D.] supervised at Family House for six (6) consecutive weeks, two
(2) times each week, for one (1) hour each session. If Father
consistently visits with [P.D.], as stated, Father may include his older
child…in the last two (2) weeks of his supervised parenting time at
Family House.
2
Mother’s petition for rule to show cause for Father’s failure to pay support was also before the court. The
court found Father in contempt, ordering him to pay a portion of Mother’s attorney fees and entering an
income withholding order for future support and arrearage payments. Father does not appeal this ruling.
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7. That Father’s parenting time at Family House shall be at his
own expense.
8. That, if Father successfully completes parenting time with
[P.D.] for six (6) consecutive weeks, two (2) times each week, for one
(1) hour each session at Family House, Father’s parenting time with
[P.D.] shall thereafter be extended to that set out for a child [P.D.’s]
age in the Indiana Parenting Time Guidelines.
Appendix at 5.
On appeal, Father contends that Mother presented no evidence that he posed a
physical threat to P.D. or that unsupervised parenting time would significantly
impair P.D.’s emotional development. Directing us to a statute governing
modifications of existing parenting time orders,3 he argues that the order for
supervised parenting time violated Indiana law.
[7] We observe that this was an initial determination of parenting time, not a
modification. Thus, I.C. § 31-17-4-1 (West, Westlaw current with all 2014
Public Laws of the 2014 Second Regular Session and Second Regular Technical
Session of the 118th General Assembly), rather than I.C. § 31-17-4-2, was the
applicable statute. This statute provides in relevant part:
(a) A parent not granted custody of the child is entitled to reasonable
parenting time rights unless the court finds, after a hearing, that the
parenting time by the noncustodial parent might endanger the child’s
3
Ind. Code Ann. § 31-17-4-2 (West, Westlaw current with all 2014 Public Laws of the 2014 Second Regular
Session and Second Regular Technical Session of the 118th General Assembly).
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physical health or significantly impair the child’s emotional
development.
Id. Father presents no argument that the short term of supervised parenting
time, intended to reacquaint him with his two-year-old son before full parenting
time pursuant to the Guidelines, was unreasonable.
[8] Moreover, at the final hearing, Father expressly agreed to a period of phase-in
supervised parenting time at Family House. Father simply expressed concern
over the number of visits and the cost. Under the circumstances, Father cannot
now be heard to complain that the short period of supervised parenting time
ordered by the trial court violated Indiana law.
[9] Father also asserts a fundamental error argument that is difficult to follow. He
makes no effort to establish that fundamental error is applicable in this civil
context and then focuses on cases not involving fundamental error but, rather,
trial court bias.4 We find this argument unavailing.
[10] Judgment affirmed.
Kirsch, J., and Crone, J., concur.
4
While the trial court’s statement at the conclusion of the provisional hearing (see supra n.1) was imprudent,
we are confident, based on our review of the record, that the hearings were conducted in an impartial
manner. C.f. Brokus v. Brokus, 420 N.E.2d 1242, 1249 (Ind. Ct. App. 1981) (reversing custody order for abuse
of discretion where “record [was] replete with statements and actions by the trial court exemplifying its
prejudice [in favor of mother]”).
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