Pursuant to Ind.Appellate Rule 65(D),
FILED
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of Aug 20 2012, 9:34 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case. CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
SCOTT L. BARNHART DAVID J. KARNES
Keffer Gilley Barnhart LLP TARA M. SMALSTIG
Indianapolis, Indiana Dennis, Wenger & Abrell, P.C.
Muncie, Indiana
IN THE
COURT OF APPEALS OF INDIANA
IN RE THE PATERNITY OF A.W., )
T.W., )
)
Appellant-Respondent, )
)
vs. ) No. 68A05-1202-JP-59
)
J.P., )
)
Appellee-Petitioner. )
APPEAL FROM THE RANDOLPH CIRCUIT COURT
The Honorable Jay L. Toney, Judge
Cause No. 68C01-0101-JP-7
August 20, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
BAILEY, Judge
Case Summary
T.W. (“Mother”) appeals an order granting J.P. (“Father”) custody of their child, A.P.
We affirm.
Issues
Mother presents two issues for review:
I. Whether the trial court clearly erred by modifying custody; and
II. Whether the order is ambiguous as to modification of legal custody.
Facts and Procedural History
A.P. was born on January 8, 2001. Upon Father’s petition, A.P.’s paternity was
established in December of 2001. At that time, the parents agreed that Mother would have
custody of A.P.
In December of 2010, then nine-year-old A.P. ran to the home of neighbor Dana
Deffendall (“Deffendall”) to telephone his maternal grandmother for assistance. He told
C.W. (“Grandmother”) that “mommy’s drunk and being very mean.” (Tr. 178.) When
Grandmother arrived at Mother’s home, she found Mother “so drunk and bouncing off walls
and threatening to kill herself.” (Tr. 178.) Grandmother summoned Father to come get A.P.
so she could try to calm Mother. Mother refused to go to counseling.
Several times over the spring of 2011, A.P. ran to Deffendall’s house, “scared and
crying.” (Tr. 35.) Deffendall took A.P. home, worried about Mother’s drinking, but Mother
denied alcohol use. In May of 2011, Grandmother moved in with Mother and A.P. to help
out financially and assist with A.P.’s care. One evening, Grandmother came home and A.P.
met her outside, asking for help because his mother had been drinking and was preparing to
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take him to a Boy Scouts meeting. When Grandmother confronted Mother, she demanded
that Grandmother leave. Grandmother decided to contact Father and assist him in trying to
obtain temporary custody of A.P.
Father filed a petition for an emergency hearing and temporary custody. On October
13, 2011, the trial court conducted an emergency child custody hearing and granted Father
temporary custody of A.P. Mother sought personal counseling, complied with a court order
for an alcohol assessment, and then moved to dismiss the temporary order. Father requested
formal modification of A.P.’s custody. The trial court conducted hearings on December 12
and 20, 2011, and January 10, 2012. On January 10, 2012, the trial court entered an order
modifying A.P.’s custody to Father. Mother now appeals.
Discussion and Decision
I. Custody
In modifying custody, the trial court found that Mother had a long-term alcohol
addiction and history of refusal of treatment or lack of success in treatment. However, the
trial court also found that Mother has sought counseling and “seems to be making some
progress.” (App. 20.) Mother now contends that the trial court abused its discretion and that
the modification order is clearly erroneous. More specifically, Mother points out that she did
what the court wanted her to do, she is a fit parent, and A.P. wants to live with her.
Indiana Code Section 31-17-2-21 provides that a court may not modify a child custody
order unless the modification is in the best interests of the child and there is a substantial
change in one or more of the factors that the court may consider under section 8 when it
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originally determines custody. Section 31-17-2-8 sets forth factors to be considered by the
trial court, providing in relevant part:
The court shall determine custody and enter a custody order in accordance with
the best interests of the child. In determining the best interests of the child,
there is no 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 parent or 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 parent or parents;
(B) the child’s sibling; and
(C) any other person who may significantly affect the child’s best interests.
(5) The child’s adjustment to the child’s:
(A) home;
(B) school; and
(C) community.
(6) The mental and physical health of all individuals involved.
(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[.]
Judgments in custody matters will typically turn on essentially factual determinations.
Baxendale v. Raich, 878 N.E.2d 1252, 1257 (Ind. 2008). We do not reweigh evidence or
consider witness credibility, and will set aside a judgment only when it is clearly erroneous.
Id. “We will not substitute our own judgment if any evidence or legitimate inferences
support the trial court’s judgment.” Id. at 1257-58. This doctrine is reinforced by the
concern for finality in custody matters. Id. at 1258.
A.P. had been in Mother’s physical custody since birth, with significant assistance
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from Grandmother.1 A.P. testified that he wanted to return to Mother’s home. However, the
evidence presented to the trial court reveals that A.P. had assumed caretaking roles that were
not age appropriate. His grandmother and her former boyfriend each testified that A.P. had
been a very independent child, tending to himself as Mother had typically spent many hours
isolated in her bedroom. A.P. had been placed in the position of trying to stop his mother
from driving him when she was under the influence of alcohol. He had been forced on
multiple occasions to seek assistance from a neighbor and was helpless in the face of
Mother’s suicide threats, raging, and refusal of treatment. He had recently written a letter
(requested as part of Mother’s current treatment) stating that he “wanted to take care” of his
mother’s needs and help her. (Tr. 117.)
Mother had a history of cutting A.P. off from sources of support. She had denied him
contact with Grandmother, with Father, and with Deffendall after they had intervened and
challenged Mother regarding her alcohol use. Mother had recently spoken to A.P. of
“vengeance” that would be coming to Father, Grandmother, and Deffendall. (Tr. 109.)
According to A.P.’s testimony, Mother had said that she did not want to talk to Grandmother
or even “look at her,” although A.P. could see her in the future. (Tr. 110.)
Mother has commendably sought mental health treatment. She testified that she
recently sought treatment for personal issues but, once in counseling, began to address her
use of alcohol. She had completed eighteen weeks of alcohol abuse treatment and eleven
personal counseling sessions. Nonetheless, there is abundant evidence from which the trial
1
For example, A.P. remained with Grandmother while Mother served nine months of weekend incarceration in
a federal prison.
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court could conclude that Mother needs additional treatment before resuming full-time
parental responsibilities. In her testimony, Mother minimized her history of alcohol abuse,
essentially claiming that she had completed a treatment program in 2003 (after a driving
while intoxicated conviction), attended aftercare, maintained long sobriety, and had a relapse
in 2010.
However, several other witnesses indicated that Mother had a long-term battle with
alcohol abuse. Darren Tomlinson (“Tomlinson”), Grandmother’s former boyfriend, testified
that he had received a call in 2004 when Father was due to return A.P. from a visit but found
Mother drunk. Tomlinson then went to Mother’s home and persuaded Mother to let Father
keep A.P. temporarily.
Darryl Frenzel (“Frenzel”) testified that he had first met Mother at a bar in 2007 when
he was on a date with Grandmother and Mother had stopped in after an Alcoholics
Anonymous meeting. At Mother’s request, Frenzel bought her at least five drinks that
evening. He later employed Mother in a bar that he owned, but fired her after she came to
work drunk and he had received multiple reports of Mother being drunk on the job. Frenzel
described an instance in 2010 when Mother had called him and asked him to take A.P. to
Grandmother. According to Frenzel, Mother had been drunk, screaming, and “out of
control.” (Tr. 153.) Frenzel estimated that on five or six occasions he had seen Mother so
drunk that she would urinate on herself. She had urinated on Frenzel’s vehicle seat, sofa, and
garage floor. This took place from 2007 to 2011.
Grandmother testified that Mother’s depiction of lengthy sobriety was “absolutely not
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accurate.” (Tr. 167.) After Mother disappeared in 2003, Grandmother had gone door-to-
door hunting for her; she had sought the assistance of Mother’s federal probation officer. In
2004, she had received many calls to pick up her daughter in a drunken state. Nonetheless,
Mother refused treatment and threatened to bar Grandmother from having contact with A.P.
if Grandmother challenged Mother. In 2006, Grandmother had moved in with Mother and
A.P. According to Grandmother, Mother was “always in her bedroom.” (Tr. 173.) The
room reeked of alcohol, there were open alcohol containers in Mother’s car, and Mother
stashed alcohol under her bathroom sink. At times, Mother would begin or complete some
treatment, but Grandmother estimated that the longest she could maintain sobriety was a few
months.
Father testified that he worked as a DJ in a bar until a year prior to the hearing, when
he had obtained his LPN license. He described seeing Mother come into the bar on
weekends and drink until she had “wet her pants,” then keep on drinking. (Tr. 202.)
In sum, the evidence suggests that A.P. is strongly bonded with his mother but also
that he feels responsible for her well-being. While Mother is to be commended for
completing an eighteen-week intensive outpatient alcohol program, she has a long history of
struggles with alcohol and relapse. There is ample evidence to support the trial court’s
conclusion that it is in A.P.’s best interests that Father be awarded custody. Mother’s
emphasis on the difficulty of A.P.’s adjustment and his declining grades merely presents a
request to reweigh the evidence. We cannot do so. Baxendale, 878 N.E.2d at 1257. The
custody modification order is not clearly erroneous.
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II. Legal Custody
Mother asks that we remand the matter to the trial court for clarification of its custody
order. In particular, Mother complains that the trial court failed to specify whether the
parents now share legal custody of A.P.
In the “Agreed Final Order as to Custody, Support, and Visitation,” the parties
specified that Mother was to “have custody of the parties’ minor child.” (App. 65.) No
distinction was made as between physical and legal custody. Father’s petition for
modification of custody likewise made no such distinction. The trial court granted the
petition for modification, effectively vesting Father with physical and legal custody.
Conclusion
The custody modification order is not clearly erroneous.
Affirmed.
RILEY, J., and CRONE, J., concur.
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