Marriage of Bingaman v. Bingaman

CASE SUMMARY

CHEZEM, Judge.

Appellant/Petitioner, Wilbur Roy Binga-man, appeals the trial court's order removing custody of his two minor children from him and awarding custody of the children to the Cass County Department of Public Welfare. We affirm but remand with instructions.

ISSUES

The issues presented by the husband can be stated as follows:

I. Whether there was sufficient evidence to support the trial court's finding that the requisite change of circumstances was sufficiently substantial and lasting as to make the existing custody order unreasonable.

II. Whether the trial court could award custody of the two children to the welfare department, a third party and not a party to the dissolution.

III. Whether visitation should have been awarded to Wilbur.

FACTS

Wilbur Bingaman and Pamela Bingaman were divorced on February 21, 1980. At that time, the custody of their two children, E.B. and C.B. was awarded to Pamela. In May, 1987, Wilbur petitioned the court for a modification of the custody order. After a hearing, the court awarded custody to Wilbur finding that Pamela's conduct in caring for the children, along with the condition of her home, were a change of circumstances so substantial and continuing as to make the prior custody order unreasonable. In May, 1989, Pamela then petitioned the court for a modification of the 1987 custody order. Both Pamela Binga-man and Wilbur Bingaman testified at the hearing. The judge interviewed the children in his chambers; however, no record was made of that interview. The court then issued the following order:

1. There is absolutely no doubt in this Court's mind that the minor children's continued residence/custody with their father is clearly not in their best interests.

2. The Court is well aware that the necessary showing of substantial and continuing changes in circumstances does not relate to the economic or daily changes in the life of the non-custodial parent. Living conditions at the [wife's] residence were apparently deplorable as of the Court's October 29, 1987, order. Little evidence was cross-examined at the recent hearing regarding her current living conditions because [husband] relied, instead, on the requirement of showing substantial and continuing changes in circumstances.

3. Either parent's right to custody of their minor children is not absolute. The Court can award custody of the minor children to a third party, and this Court strongly believes that this particular situation is more a CHIN situation than a custody modification situation. The allegations of drug and alcohol use/encouragement, living conditions, emotional deprivation, and neglect are sufficient for this Court to award custody of [E.B.], born June 28, 1978, and [C.B.], born March 25, 19[77] to the Cass County Department of Public Welfare, for placement, oversight and supervision in the home of [wife], Pamela Jo Bingaman.

DISCUSSION AND DECISION

The first issue is whether there was sufficient evidence to support the trial court's finding that the requisite change of circumstances was sufficiently substantial and lasting as to make the existing custody order unreasonable. The modification of a custody order is within the sound discretion of the trial court and we review only for an abuse of that discretion. Brown v. Brown (1984), Ind.App., 463 N.E.2d 310.

Wilbur argues that while there may have been sufficient evidence to support a finding of substantial and continuing change of Pamela's circumstances, the evidence as to his circumstances was not sufficient to justify a finding that the custody order of 1987 was unreasonable. While noting that a change in the economic or environmental cireumstances of a non-custodial parent will not in and of itself constitute substantial and continuing change of cireumstances as to justify a change of custody, Isom v. Isom (1989), Ind.App., 538 N.E.2d 261, Pea v. Pea (1986), Ind.App., 498 N.E.2d 110, consideration of these changes in the non-custodial household is not precluded in determining whether a substantial and continuing change of circumstances does in fact exist. As such, Wilbur's argument amounts to an invitation to reweigh the evidence. This we will not do. Thompson v. Thompson (1990), Ind.App., 550 N.E.2d 1332.

The history of this matter shows that in the dissolution order of February 21, 1980, the custody of E.B. and C.B. was given to Pamela. On October 29, 1987, the trial court changed custody of the two children to Wilbur; this change was based on representations made by Wilbur as to improvements he would make to his home and the deplorable condition of Pamela's home. Wilbur did not make those improvements, and Pamela improved her home. There were also allegations that the relationship between the children and Wilbur had deteriorated. These circumstances are of such a substantial and continuing nature that the trial court could find the existing custody order of October 29, 1987, was unreasonable.

The second issue to be addressed is whether the trial court could award custody of the two children to the welfare department, a third party and not a party to the dissolution. There is precedent allowing the trial court to award custody in a dissolution proceeding to a third party: Moody v. Moody (1986), Ind.App., 488 N.E.2d 378 (child awarded to grandparents); Fox v. Fox (1984), Ind.App., 466 N.E.2d 789 (child awarded to welfare department). Further, we find no persuasive authority¹ or logic that limits the trial court to these options at initial custody determinations only. Indeed, I.C. 31-1-11.5-21 provides "the trial court shall determine custody and enter a custody order." The only limitation of the application of .C. 81-1-11.5-21 or 22 is contained in IC. 31-1-11.5-22(d) which prescribes the standard to be used to determine whether a custody order should be modified. While the obvious preference of the law is to award custody of the children to their parents, if a child cannot be safely placed with a parent, the trial court cannot ignore the risk to the child's well-being.

If the trial court believes that neither parent can adequately parent these children, the trial court may order an investigation under the authority of I.C. 31-1-11.5-22. The tris! court may also appoint a guardian ad litem as provided for by LC. 31-1-11.5-28. The information can be referred to the Welfare Department in the form of an intake. However, the welfare department is not required to file a petition to have these children adjudicated as children in need of services. LC. 81-6-4-10(3) provides "[the prosecutor or the attorney for the county department may request the juvenile court to authorize the filing of a petition alleging that a child is a child in need of services." Until such time either the prosecutor or county department chooses to file a petition to determine that E.B. and C.B. are children in need of services, the dissolution court must award custody of the children to someone. The trial judge determined that placing the children in the physical custody of Pamela under welfare supervision was in the best interests of the children. We do not believe that this was an abuse of discretion.

Notwithstanding, the third issue we should address is the failure of the trial court to award visitation to Wilbur. We believe that omission to be an oversight as there was no finding to deny visitation. Therefore, we remand to the trial court to enter a visitation order or to make such findings pursuant to IC. 81-1-11.5-24 which would allow the denial of visitation.

SULLIVAN, J., concurs. MILLER, J., dissents with separate opinion.

1 . This court in Brown v. Brown (1984), Ind.App., 463 N.E.2d 310 stated that LC. 31-1-11.5-21 does not apply to modification of custody proceedings. However, that interpretation does not follow Truden v. Jacquay (1985), Ind.App., 480 N.E.2d 974 which allowed the use of the interview procedure in a visitation modification. While it is clear that a different standard in determining modification of existing custody and visitation orders must be used in subsequent proceedings, the prohibition against the use of the reports, investigations, interviews, and other means authorized by I.C. 31-1-11.5-21 in a subsequent custody hearing seems to frustrate the ends of justice.