MEMORANDUM DECISION
Sep 24 2015, 10:12 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 APPELLANTS ATTORNEY FOR APPELLEES
Dominic W. Glover Casey D. Cloyd
Coriden Coriden Andrews & Glover, Indianapolis, Indiana
LLC
Columbus, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Rachel Ann Nelson and Corey September 24, 2015
Joe Dennison, Court of Appeals Case No.
03A01-1502-DR-62
Appellants-Respondents,
Appeal from the Bartholomew
v. Circuit Court
The Honorable Stephen R.
Tammy Sue Nelson and Pamela Heimann, Judge
Nelson,
Appellees-Petitioners. Cause No. 03C01-1204-DR-1639
Najam, Judge.
Statement of the Case
[1] Rachel Ann Nelson (“Mother”) appeals the trial court’s denial of her verified
petition to terminate an order of custody regarding her minor child J.N.
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Mother presents a single issue for our review, namely, whether the trial court
abused its discretion when it ordered that J.N. remain in the custody of Tammy
Sue Nelson and Pamela Nelson, J.N.’s maternal grandmother and great aunt,
respectively. We affirm.1
Facts and Procedural History
[2] On October 19, 2006, Mother, who was unmarried at the time, gave birth to
J.N. During all but approximately eight months of her life since birth, J.N. has
lived in Tammy Sue’s home, sometimes with Mother and sometimes while
Mother lived elsewhere. On April 2, 2012, Tammy Sue and Pamela, who live
in adjoining apartments, filed a petition for custody of J.N. At a final hearing
on that petition on June 21, 2012, Mother testified that she “had no place to
live, no job, no source of income, a number of outstanding criminal issues and
no vehicle.” Appellant’s Amended App. at 11. And Mother testified that “she
believed it was in the best interests of her daughter for the Court to award
custody of [J.N.] to [Tammy Sue and Pamela].” Id. J.N.’s father was not
present at that hearing. The trial court granted the custody petition.
[3] On September 8, 2014, Mother filed a verified petition to terminate the June
2012 custody order. At a hearing on that petition, the trial court heard the
following evidence: Mother was on probation following a possession of
1
Corey Joe Dennison, J.N.’s father, is a named Appellant/Petitioner. But he did not join Mother in her
petition to terminate the custody order, and he does not participate in this appeal.
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methamphetamine conviction in 2013; Mother had not failed any drug screens
while on probation; Mother’s criminal history includes “two conversions and a
battery,” Tr. at 13-14; Mother completed substance abuse treatment; Mother is
married and gave birth to twins in July 2014; Mother’s husband is not the
biological father of the twins; Mother works part-time at a hotel; Mother lives in
a one-bedroom apartment with her husband and twins; Mother’s husband is on
probation for a driving while intoxicated conviction; and Mother has exercised
visitation with J.N., including overnights, every weekend or every other
weekend. Tammy Sue and Pamela testified that they believed it was in J.N.’s
best interests to remain in their custody. The trial court denied Mother’s
verified petition. This appeal ensued.
Discussion and Decision
[4] Mother contends that the trial court abused its discretion when it denied her
verified petition to terminate the custody order. Our standard of review is well-
settled. We review custody modifications for an abuse of discretion, with a
“preference for granting latitude and deference to our trial judges in family law
matters.” Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002) (quoting In re Marriage
of Richardson, 622 N.E.2d 178, 178 (Ind. 1993)). We set aside judgments only
when they are clearly erroneous, and will not substitute our own judgment if
any evidence or legitimate inferences support the trial court’s judgment. Id.
[5] In Indiana, we apply “the important and strong presumption that a child’s
interests are best served by placement with the natural parent.” In re
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Guardianship of B.H., 770 N.E.2d 283, 287 (Ind. 2002). And, as our supreme
court has explained with respect to third party custody proceedings,
the distinctions between the statutory factors required to obtain
initial custody and those required for a subsequent custody
modification are not significant enough to justify substantially
different approaches in resolving custody disputes. Instead both
require a determination of the child’s best interest, and both
require consideration of certain relevant factors. See Ind. Code §
31-14-13-2 (Factors for custody determination), Ind. Code § 31-
14-13-6 (Modification of child custody order). And importantly,
Indiana courts have long held that “[e]ven when a parent initiates
an action to reobtain custody of a child that has been in the
custody of another, the burden of proof does not shift to the
parent . . . [r]ather, the burden of proof is always on the third
party.” In re Guardianship of J.K., 862 N.E.2d 686, 692 (Ind. Ct.
App. 2007) (quoting In re Custody of McGuire, 487 N.E.2d 457,
460-61 (Ind. Ct. App. 1985)). A burden shifting regime that
places “the third party and the parent on a level playing field,”
Z.T.H., 839 N.E.2d at 253, is inconsistent with this State’s long-
standing precedent. . . .
It is of course true that a party seeking a change of custody must
persuade the trial court that “(1) modification is in the best
interests of the child; and (2) there is a substantial change in one
(1) or more of the factors that the court may consider under
section 2 and, if applicable, section 2.5 of this chapter.” I.C. §
31-14-13-6; see also Heagy v. Kean, 864 N.E.2d 383, 388 (Ind. Ct.
App. 2007) (holding that “[m]odification of child custody may
occur only when a parent can demonstrate ‘modification is in the
best interests of the child, and there is a substantial change in one
or more factors the court may consider.’”). But these are modest
requirements where the party seeking to modify custody is the
natural parent of a child who is in the custody of a third party.
The parent comes to the table with a “strong presumption that a
child’s interests are best served by placement with the natural
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parent.” B.H., 770 N.E.2d at 287. Hence the first statutory
requirement is met from the outset. . . . In essence, although in a
very technical sense, a natural parent seeking to modify custody
has the burden of establishing the statutory requirements for
modification by showing modification is in the child’s best
interest, and that there has been a substantial change in one or
more of the enumerated factors, as a practical matter this is no
burden at all. More precisely, the burden is minimal. Once this
minimal burden is met, the third party must prove by clear and
convincing evidence “that the child’s best interests are
substantially and significantly served by placement with another
person.” B.H., 770 N.E.2d at 287. If the third party carries this
burden, then custody of the child remains in the third party.
Otherwise, custody must be modified in favor of the child’s
natural parent.
In re K.I., 903 N.E.2d 453, 460-61 (Ind. 2009).
[6] Here, at the hearing on Mother’s petition, the trial court acknowledged K.I. but
erroneously concluded that, because K.I. involved a guardianship, it was
inapposite to this case. The trial court did not make special findings in its
written order, but, at the conclusion of the hearing, the trial court had stated as
follows:
This Court believes that the appropriate standard, since this is not
a guardianship, and since this is a modification of a set Custody
Order, this court believes in reviewing the law that’s been
presented here and the Court’s experience . . . in the past is that
this modification of custody, since there’s already been custody
established, is such that mother would have the burden to prove
these things under [Indiana Code Section] 31-17-2-8 and that the
modification is in the best interest of the child and there has been
a substantial change in one or more of the factors such that it
would be in the best interest of the minor child. Okay. What
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that burden is then, is at issue. But regardless of what that
burden is, whether it’s a minimal burden, by the natural parent,
or whether it is a more stringent burden, the Court must . . .
determine credibility of witnesses as it relates to the testimony
that’s come here. And the court notes that specifically in this
case. In determining that mother has not met her burden, that it
is in the best interest of the minor child that custody be dissolved
under this case, and that she receive custody of the minor child,
as a result of her being the child’s mother. The Court does note
that mother has made improvements in her life, but I will
reiterate the credibility of the witnesses as it relates to the
controverted issues here today, and the Court is relying upon that
in making this determination. And so, therefore, I am going to
find that Mother’s petition is denied at this point.
Tr. at 92-93.
[7] Mother contends that, in light of those statements, it is obvious that the trial
court “failed to apply the standards outlined in K.I.” Appellant’s Br. at 7. In
particular, Mother argues that
K.I. indicates that Natural Mother meets her initial statutory
burden—the burden that the trial court here indicates Natural
Mother failed to prove—“from the onset” by virtue of her
relationship with the child. Once Natural Mother meets that
burden the third party must then prove by clear and convincing
evidence that the child’s best interests are substantially and
significantly served by placement with another person. That was
never proven here.
The trial court here put the third parties and the parent on a level
playing field and indicated that Natural Mother failed to carry
her burden of proof. The trial court then also failed to find by
clear and convincing evidence that [J.N.]’s best interests are
substantially and significantly served by placement with another
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person. The evidence failed to indicate that [J.N.]’s best interests
are substantially and significantly served by continued placement
with the third parties.
Id.
[8] Tammy Sue and Pamela agree that “K.I. correctly states the controlling Indiana
law about resolution of custody disputes between natural parents and third
parties.” Appellees’ Br. at 7. Thus, they contend that Mother’s burden of proof
here was minimal, and the burden then shifted to them to prove by clear and
convincing evidence that the child’s best interests are substantially and
significantly served by placement with another person. K.I., 903 N.E.2d at 460-
61. Tammy Sue and Pamela maintain that they satisfied that burden, and they
point out that we can affirm the trial court’s denial of Mother’s petition on that
ground. We must agree.
[9] In Baxendale v. Raich, 878 N.E.2d 1252, 1257-58 (Ind. 2008), our supreme court
reiterated that,
“[i]n the absence of special findings, we review a trial court
decision as a general judgment and, without reweighing evidence
or considering witness credibility, affirm if sustainable upon any
theory consistent with the evidence.” Perdue Farms, Inc. v. Pryor,
683 N.E.2d 239, 240 (Ind. 1997)). Judgments in custody matters
typically turn on essentially factual determinations and will be set
aside only when they are clearly erroneous. We will not
substitute our own judgment if any evidence or legitimate
inferences support the trial court’s judgment. The concern for
finality in custody matters reinforces this doctrine. See Kirk v.
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Kirk, 770 N.E.2d 304, 307 (Ind. 2002) (citing In re Marriage of
Richardson, 622 N.E.2d 178, 178 (Ind. 1993)).
[10] The trial court did not enter special findings to explain its denial of Mother’s
petition. However, at the conclusion of the hearing, the trial court expressly
stated that it found Mother to be not credible, and we cannot reassess credibility
on appeal. Id. Regardless of what burden was used by the trial court, in light of
the overwhelming evidence presented by Tammy Sue and Pamela and the fact
that the trial court found Mother not to be credible, any error was harmless. See
P.S. by Harbin v. W.S., 452 N.E.2d 969, 976-77 (Ind. 1983). In particular, the
evidence shows that: J.N. has lived with Tammy Sue for all but approximately
eight months of her life;2 Mother admitted to having “had lots of criminal
cases” in the past, including a January 2013 conviction for possession of
methamphetamine, for which she spent approximately five months in jail;
Mother has not participated in any parent-teacher meetings concerning J.N.
and has not asked to see J.N.’s report cards; and Mother has a habit of bringing
J.N. back home to Tammy Sue and Pamela when J.N. becomes ill during visits
with Mother. We affirm the trial court’s denial of Mother’s petition for
termination of custody order.
[11] Affirmed.
Vaidik, C.J., and Kirsch, J., concur.
2
At the time of the hearing, J.N. was eight years old.
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