Valerie Jamison v. Mason Holden (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any FILED
court except for the purpose of establishing Mar 29 2017, 10:44 am
the defense of res judicata, collateral CLERK
estoppel, or the law of the case. Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
John P. Brinson Craig Goedde
Evansville, Indiana Johnson, Carroll, Norton, Kent &
Goedde, P.C.
Evansville, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Valerie Jamison, March 29, 2017
Appellant-Respondent, Court of Appeals Case No.
82A01-1608-JP-1932
v. Appeal from the Vanderburgh
Superior Court
Mason Holden, The Honorable Renee Ferguson,
Appellee-Petitioner. Magistrate
Trial Court Cause No.
82D01-1202-JP-82
Robb, Judge.
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Case Summary and Issue
[1] Valerie Jamison (“Mother”) appeals the trial court’s order modifying custody of
her child, J.H., from her to the child’s father, Mason Holden (“Father”). She
raises several issues for our review, which we consolidate and restate as one:
whether the trial court denied her due process by allowing her counsel to
withdraw on the day of the hearing, denying her a continuance to find other
counsel, and then not allowing her to present evidence, cross-examine
witnesses, or be heard on her own behalf at the custody modification hearing.
Concluding the trial court denied Mother due process by the manner in which it
conducted the modification hearing, we reverse and remand.
Facts and Procedural History
[2] Father established paternity of J.H. in 2012. Mother had primary custody of
J.H. In June 2015, Mother was arrested, and on June 26, 2015, the Indiana
Department of Child Services (“DCS”) opened child in need of services
(“CHINS”) cases with respect to J.H. and Mother’s other child.1 Also on June
26, 2015, Father filed in the paternity case an emergency petition to modify
custody, requesting custody of J.H. be granted to him and Mother’s parenting
time be restricted “to alleviate any harmful issues to the child.” Appellant’s
1
Father is not the parent of Mother’s other child. The events in J.H.’s case have had no impact on the other
child’s CHINS case; as of the custody modification hearing in this case on June 13, 2016, that child remained
a CHINS and was in a foster home.
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Appendix, Volume 2 at 18. At the CHINS initial hearing on June 30, 2015, the
CHINS court placed J.H. with Father. Mother was represented in both the
CHINS and the paternity cases by private counsel.
[3] In October 2015, J.H.’s CHINS and paternity cases were consolidated and the
paternity court assumed jurisdiction. The parties agreed Father would have
temporary custody of J.H. pending a modification hearing and Mother was
given supervised parenting time. DCS then terminated its wardship of J.H. in
the CHINS case. A modification hearing was scheduled for June 13, 2016.
[4] On June 7, 2016, Mother’s counsel filed a motion to withdraw, alleging she had
been unable to communicate with Mother and Mother had not maintained her
contractual obligation to counsel. Counsel appeared at the scheduled
modification hearing on June 13 and the trial court granted the motion to
withdraw without objection from Mother. In sorting out who was in the
courtroom and who should be allowed to stay before beginning the hearing, the
following discussion occurred:
Court: And, [Mother], did you intend to have your [m]other
testify?
Mother: I did not know that it was gonna – I thought I was
gonna have longer – like more of a - I thought there was gonna
be another court date before this one, actually.
Court: No, we were set for trial today.
Mother: Okay. It probably would help me. I mean, I -
Court: Alright, [Mother’s mother], go ahead and have a seat out
in the waiting area, please.
Mother: I would really like to have an attorney when I -
Court: You had an attorney, ma’am, that you didn’t cooperate
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with.
Mother: She withdrew while I was in rehab. She didn’t -
Court: No, she withdrew – she didn’t file it until Friday.
Mother: I didn’t get out until last night.
***
Mother: Am I allowed to request Counsel?
Court: Ma’am, you have already had – been afforded the
opportunity to have an attorney and you did not cooperate with
your attorney. . . . Ma’am you had an attorney that you hired.
You failed to cooperate with that attorney and she has
withdrawn her representation, which you had no objection to on
the day of trial. We are no longer going to delay this matter.
Transcript, Volume I at 6-8.
[5] The trial court then took up the matter of a motion to quash filed by DCS.
Apparently, Father had subpoenaed records from DCS, some of which involved
Mother’s other child. Father’s attorney explained:
[P]art of the Court’s order back on December 16, 2015 . . . I think
the docket will reflect that there was a temporary order of
custody that was granted to [Father]. Part of the Mother’s
parenting time was conditioned upon the other child’s case. It
was specifically referenced in the Court’s order.
***
[T]he parenting time for [J.H.] was actually coupled on the other
child’s case to ensure that the Mother was compliant with all
services that were being provided to her [in that CHINS case].
And if she was not then compliant with all those services there
was to be no parenting time [with J.H.]
Id. at 8-10. The trial court denied the motion to quash but ordered Father’s
counsel to keep the information in the other child’s case file from being
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disseminated or used for any purpose outside this case. The trial court then
heard brief testimony from the DCS case manager for Mother’s other child.
The case manager had been the child’s case manager for two and a half months
and had not had contact with Mother. He testified the child had been in foster
care since initially removed from Mother’s care in June 2015 and was doing
well.
[6] The trial court then ruled from the bench that it was granting Father’s petition
for custody of J.H. and was ordering Mother to have parenting time with J.H.
that mirrored what she was receiving with her other child through DCS.
Mother protested:
Mother: Your Honor, am I allowed to – you haven’t heard my
words at all. You haven’t heard that I have so much to say. This
is not fair.
Court: Have I heard anything from the Father, ma’am?
Mother: He doesn’t have to defend himself.
Court: Have I heard anything from the Father?
Mother: He has an attorney.
Court: Have I heard anything from his attorney?
Mother: Yes.
Court: No, ma’am, I haven’t this morning. This record is – this
is based strictly off your performance in your CHINS case.
Mother: I have had contact with DCS. . . . I have two letters that
I sent certified . . . letting her know when I went in.
Court: [T]he Court is not changing its order. I am not holding
this child in limbo any longer waiting for you to do whatever it is
that you’re doing. So at this time I’m ordering that the Father
has custody of the child, supervised parenting time.
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Id. at 14-15. The trial court reduced its ruling to a written order, which noted
Mother’s counsel was allowed to withdraw at the hearing and Mother’s request
for a continuance to hire new counsel was denied “inasmuch as today is the day
set for hearing in this matter . . ., Mother failed to adequately communicate . . .
with her prior attorney, for judicial economy, and that the best interests of the
child herein warrant some permanency to the Court’s prior temporary Orders.”
Appellant’s App., Vol. 2 at 11. The written order also notes the court took
judicial notice of the CHINS case for Mother’s other child and heard testimony
from the other child’s case manager.
After hearing this testimony, having heard brief argument from
the parties, having reviewed the pleadings filed in this matter,
and being duly advised in the premises [the court] now finds as
follows:
***
4. The Court, having heard the facts and carefully considering
the same to the custody factors outlined under Indiana Code §
31-17-2-8, determines that [J.H.’s] best interests are best suited in
the Father’s care and permanent custody.
Id. at 12-13. Mother filed a motion to correct error which the trial court denied.
This appeal ensued.
Discussion and Decision
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I. Standard of Review
[7] We review a trial court’s custody modification decision for abuse of discretion,
granting latitude and deference to our trial courts in family law matters. Wilson
v. Myers, 997 N.E.2d 338, 340 (Ind. 2013). Accordingly, we will not reweigh
the evidence, judge the credibility of the witnesses, or substitute our judgment
for that of the trial court. Robertson v. Robertson, 60 N.E.3d 1085, 1091 (Ind. Ct.
App. 2016). We will reverse the trial court’s custody decision only if it is clearly
against the logic and effect of the facts and circumstances before the court or the
reasonable inferences drawn therefrom. Id.
II. Due Process
[8] Mother contends the trial court’s order modifying custody following a hearing
at which the trial court allowed her counsel to withdraw, denied her a
continuance to obtain other counsel, and did not offer her an opportunity to
speak or present evidence on her behalf resulted in a fundamentally unfair
hearing and violated her due process rights.
[9] The Due Process Clause of the United States Constitution prohibits state action
that deprives a person of life, liberty, or property without a fair proceeding.
D.T. v. Ind. Dep’t of Child Servs., 981 N.E.2d 1221, 1224 (Ind. Ct. App. 2013). A
parent’s interest in the care, custody and control of his or her children is
perhaps the oldest of our fundamental liberty interests. Bester v. Lake Cty. Office
of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005) (quoting Troxel v.
Granville, 530 U.S. 57, 65 (2000)). Because child custody proceedings implicate
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the fundamental relationship between parent and child, Indiana courts
recognize that procedural due process must be provided to protect the
substantive rights of the parties. Fields v. Fields, 749 N.E.2d 100, 110 (Ind. Ct.
App. 2001), trans. denied. It is axiomatic that one way a trial court may abuse
its discretion in modifying custody is failing to follow proper procedure. Bailey
v. Bailey, 7 N.E.3d 340, 343 (Ind. Ct. App. 2014). Due process requires
reasonable notice and an opportunity to be heard before custody or support can
be modified. White v. White, 796 N.E.2d 377, 383 (Ind. Ct. App. 2003).
[10] If the State imparts a due process right, then it must give that right. A.P. v.
Porter Cty. Office of Family & Children, 734 N.E.2d 1107, 1112 (Ind. Ct. App.
2000), trans. denied. The Indiana legislature has provided a fairly detailed list of
procedural requirements for courts to follow in custody and modification cases.
See Ind. Code ch. 31-17-2.
[W]hen such an important issue as the custody of children is
involved, a modification generally can be ordered only after a
party has filed a petition requesting such a modification, the
other party has notice of the filing, and a proper evidentiary hearing
is held at which both parties may be heard and the trial court [is] fully
apprised of all necessary information regarding change of
circumstances and a child’s best interests before deciding whether
a modification should be ordered.
Bailey, 7 N.E.3d at 344 (emphasis added). “An opportunity to be heard is
essential before a parent can be deprived of custody.” Id. (citation omitted).
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[11] Here, Father requested a change of custody, Mother had notice of the filing,
and all parties appeared in court for a hearing. However, the trial court
completely failed to give Mother a meaningful opportunity to be heard at the
hearing. At the outset of the hearing, the trial court allowed Mother’s counsel
to withdraw based on her counsel’s assertions that Mother had not been
cooperative. Mother had no objection to this, but she also did not have much
notice of it. According to Mother—and there is no evidence to the contrary—
she was in rehab when counsel filed her motion to withdraw a week before the
hearing, and only left rehab the day before the hearing. The trial court then
denied Mother a continuance to seek other counsel or otherwise prepare to
represent herself. Although the grant or denial of a motion for continuance is
within the sound discretion of the trial court, denial of a continuance will be
deemed an abuse of discretion if good cause is shown for granting the motion.
F.M. v. N.B., 979 N.E.2d 1036, 1039 (Ind. Ct. App. 2012). The withdrawal of
counsel does not entitle a party to an automatic continuance and the moving
party must show diligence in procuring new counsel. Riggin v. Rea Riggin &
Sons, Inc., 738 N.E.2d 292, 311 (Ind. Ct. App. 2000). In addition to only having
a week’s notice of her counsel’s intent to withdraw, Mother apparently spent
that week in rehab and her opportunities to procure other counsel were likely
limited. That she did not object to her counsel’s withdrawal seems tied to her
belief she would have additional time to prepare. Cf. Litherland v. McDonnell,
796 N.E.2d 1237, 1240 (Ind. Ct. App. 2003) (noting no abuse of discretion will
be found when the moving party has not shown she was prejudiced by the
denial), trans. denied. We appreciate the trial court’s desire to bring this custody
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matter to a close expeditiously. However, Father already had temporary
custody of J.H., and therefore, a short continuance would have caused no
prejudice to him and, more importantly, no harm to J.H. See J.P. v. G.M., 14
N.E.3d 786, 790 (Ind. Ct. App. 2014) (“We must also consider whether a delay
would have prejudiced the opposing party to an extent sufficient to justify
denial of the continuance.”).
[12] The denial of Mother’s motion for a continuance alone may not have deprived
her of due process in this proceeding, but that denial must be considered in
conjunction with the manner in which the trial court conducted the “hearing”
in this case. The trial court did not offer Mother an opportunity to cross-
examine the sole witness, present witnesses or evidence of her own, or allow
her to speak on her own behalf. Both the trial court at the hearing and Father
in his brief to this court assert there was no error in this because the trial court
did not allow Father to present evidence or speak, either. See Tr., Vol. I at 14
(“Have I heard anything from the Father, ma’am?”); Brief of Appellee at 9
(“Mother fails to advise this Court that the Father also did not present any facts
supporting his case.”). That does not excuse the trial court’s failure to allow
Mother to be heard; in fact, it only bolsters our conclusion the trial court failed
to fully apprise itself of all information necessary for deciding the question of
modification. In fact, the only evidence adduced at the hearing concerned the
CHINS proceeding for Mother’s other child. There was no evidence
concerning J.H. at all. Although Mother’s entire situation is clearly relevant to
the question of modifying custody of J.H., Indiana Code section 31-17-2-21
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requires a court to find a substantial change in one or more statutory factors
before it may modify custody. Those statutory factors concern “the child,”—
here, J.H.—and his or her interaction with family members and adjustment to
his or her living situation, among other things. Ind. Code § 31-17-2-8.
Although the trial court stated in its order it had “heard the facts” and
“carefully consider[ed]” them in relation to the relevant factors, Appellant’s
App., Vol. 2 at 13, it is impossible to discern how it could have done so when
no evidence was presented regarding those factors with respect to J.H.
[13] The procedural irregularities in the trial court’s conduct of this modification
hearing are of such significance that they denied Mother due process when
modifying custody from her to Father. Accordingly, we reverse and remand
this case for a proper evidentiary hearing at which all parties are allowed to be
heard and the trial court receives and considers evidence concerning the
statutory factors relevant to J.H. and any other evidence that bears on J.H.’s
best interests.
Conclusion
[14] The trial court did not afford Mother a meaningful opportunity to be heard at
the custody modification hearing and we therefore reverse the trial court’s order
modifying custody of J.H. and remand for a full and complete hearing.
[15] Reversed and remanded.
Kirsch, J., and Barnes, J., concur.
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