D.P. v. A.L. (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 Jul 05 2017, 8:39 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT
Anthony J. Saunders
New Castle, Indiana
IN THE
COURT OF APPEALS OF INDIANA
D.P., July 5, 2017
Appellant-Respondent, Court of Appeals Case No.
33A04-1702-DR-323
v. Appeal from the Henry Circuit
Court
A.L., The Honorable Kit C. Dean Crane,
Appellee-Petitioner Judge
Trial Court Cause No.
33C02-1001-DR-14
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 33A04-1702-DR-323 | July 5, 2017 Page 1 of 4
[1] In April 2010, the marriage of D.P. (Father) and A.L. (Mother) was dissolved.
One child, Da.P. (Child), was born of the marriage in October 2006. Pursuant
to the dissolution decree, Mother was Child’s primary legal and physical
custodian, and Father had parenting time with Child every weekend. In April
2011, Father pleaded guilty to Class D felony sexual battery 1 and is required to
register as a sex offender until 2021.
[2] On November 20, 2015, Mother filed a petition to, among other things, modify
the parties’ parenting time arrangement. Specifically, she asked that Father’s
parenting time be supervised by another adult. At the September 7, 2016,
hearing on Mother’s motion, Mother testified that the two primary reasons
supporting her modification petition are Father’s 2011 sexual battery conviction
and an increase in negative behaviors from Child following the weekends he
spends with Father. She testified that, after returning from parenting time with
Father, Child frequently hits himself and makes statements about wishing
violence on Father. Tr. p. 8. On one occasion, Child had to be admitted for
two weeks at an inpatient mental health facility. Id.
[3] Following the hearing, the trial court granted Mother’s motion, finding that
“there has been a continuing and substantial change in circumstances” since the
dissolution decree was issued. Appealed Order p. 1. The trial court focused on
Father’s 2011 conviction and the requirement that he register as a sex offender
1
The victim was a 16-year-old individual who is unrelated to this appeal.
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as the changed circumstances. The trial court then found that “[i]t is in the best
interest of the minor child that [Father’s] overnight parenting time be suspended
and [Father] shall have supervised visitation pursuant to the Indiana Parenting
Time Guidelines. [Father’s] supervised visitation shall occur by an adult agreed
upon by both parties until further Order of this Court.” Id. Father now
appeals.
[4] A decision about parenting time requires us to give foremost consideration to
the best interests of the child. Meisberger v. Bishop, 15 N.E.3d 653, 656 (Ind. Ct.
App. 2014). In conducting our review, we will neither reweigh evidence nor
reassess witness credibility. Id. We will reverse only where the trial court’s
decision is clearly against the logic and effect of the facts and circumstances
before it or where the trial court errs as a matter of law. Id.
[5] Indiana Code section 31-17-4-2 provides as follows:
The court may modify an order granting or denying parenting
time rights whenever modification would serve the best interests
of the child. However, the court shall not restrict a parent’s
parenting time rights unless the court finds that the parenting
time might endanger the child’s physical health or significantly
impair the child’s emotional development.
We have found in the past that, in ruling on a motion to modify parenting time,
the trial court must consider and make a finding as to potential endangerment
of the child’s physical health or significant impairment of the child’s emotional
development. Meisberger, 15 N.E.3d at 659-60 (finding that trial court could not
restrict incarcerated father’s parenting time with child absent specific findings
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regarding endangerment of physical health or significant impairment of
emotional development); Rickman v. Rickman, 993 N.E.2d 1166, 1169 (Ind. Ct.
App. 2013) (finding that mere fact that father was incarcerated on child
molestation charges was insufficient to deny his petition for parenting time
modification; further findings and factual basis were needed).
[6] Here, as in Meisberger and Rickman, the trial court neglected to include a
sufficient factual basis addressing the factors set forth in Indiana Code section
31-17-4-2.2 While the trial court did reach a conclusion regarding the best
interests of the child, it did not make a finding regarding endangerment of
Child’s physical health or significant impairment of Child’s emotional
development. Therefore, we remand for the trial court to determine and make
one or more findings on these factors or, in its discretion, to conduct other
proceedings consistent with this opinion.
[7] The judgment of the trial court is remanded with instructions.
Barnes, J., and Crone, J., concur.
2
We also note that the trial court found a continuing and substantial change in circumstances. To modify
parenting time, however, the trial court need not make such a finding, which is required only for
modification of custody. See Ind. Code § 31-17-2-21 (requiring the trial court to find a substantial change in
statutory factors to modify custody). Instead, the trial court should focus on Indiana Code section 31-17-4-2,
which governs parenting time modification.
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