FILED
Jul 29 2016, 9:01 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
R. Patrick Magrath Christopher L. Clerc
Alcorn Sage Schwartz & Magrath, LLP Columbus, Indiana
Madison, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In re the Paternity of P.B., July 29, 2016
M.L.B., Court of Appeals Case No.
03A05-1601-JP-46
Appellant-Respondent,
Appeal from the Bartholomew
v. Circuit Court
The Honorable Jonathan W.
D.L.B., Webster, Special Judge
Appellee-Petitioner Trial Court Cause No.
03C01-0110-JP-1440
Mathias, Judge.
[1] M.L.B. (“Father”) appeals the order of the Bartholomew Circuit Court denying
his petition to enforce the trial court’s previous parenting time and reunification
orders and his petition to hold D.L.B. (“Mother”) in contempt for her failure to
cooperate with reunification and parenting time. On appeal, Father claims that
the trial court abused its discretion by failing to enforce its previous orders.
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[2] We reverse and remand.
Facts and Procedural History1
[3] This case has a long procedural history, and this is the third time this case has
come up on appeal to our court. P.B was born in July 2001, and paternity was
established by agreement between Mother and Father on November 20, 2001.
Mother was granted primary physical custody of the child, and Father was
granted parenting time and ordered to pay child support.
[4] From 2002 to 2004, the parties repeatedly litigated issues regarding parenting
time and other related matters. In April 2007, the parties again litigated issues
regarding parenting time, and the trial court found Mother in contempt for
failing to comply with the court’s parenting time order. In December of 2008,
the parties once again litigated the issue of child support and parenting time,
and Father was given “make-up” parenting time.
[5] In 2009, Mother filed a petition for contempt against Father relating to an
allegation that Father had failed to comply with the parenting time order. On
March 4, 2009, Mother filed an emergency petition to modify and terminate
Father’s parenting time. This petition referenced allegations that Father had
held a gun to P.B.’s head and had masturbated in his presence on separate
occasions in late 2008. These allegations were reported to Child Protective
1
We take much of the background facts from two of our prior decisions in this matter. See In re Paternity of
P.B., 932 N.E.2d 712, 715 (Ind. Ct. App. 2010); In re Paternity of P.B., No. 03A01-1012-JP-653 (Ind. Ct. App.
Oct. 12, 2011), aff’d on reh’g (Ind. Ct. App. Dec. 20, 2011).
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Services (“CPS”), which found them to be unsubstantiated. On March 17,
2009, Father filed a petition for contempt, apparently related to Mother’s
alleged interference with and denial of parenting time, and a petition to modify
parenting time. Father subsequently moved the trial court to appoint a guardian
ad litem (“GAL”), appoint a counselor to conduct a psychological evaluation,
and have all parties submit to counseling. On June 1, 2009, the trial court
denied Father’s request to appoint a GAL and to appoint an evaluative
counselor. On July 27, 2009, Mother filed another petition for contempt.
[6] The court held a hearing on these pending motions, and on December 11, 2009,
entered an order noting that although Mother’s November 17, 2008 petition
facially sought only to modify parenting time, her request actually sought to
terminate Father’s parenting time entirely. The trial court concluded that
because Mother sought to eliminate all of Father’s parenting time, she had to
demonstrate by “clear and convincing” evidence that termination of parenting
time was in P.B.’s best interest, similar to the standard used when the State
seeks to terminate parental rights. Applying this heightened standard to the
evidence, the court concluded that Mother did not meet that burden and
ordered that Father have parenting time pursuant to the Indiana Parenting
Time Guidelines.
[7] Mother appealed and we reversed, holding that the appropriate burden of proof
was the preponderance of the evidence standard. See In re Paternity of P.B., 932
N.E.2d 712, 720 (Ind. Ct. App. 2010). We remanded for the trial court to
reconsider the matter applying the proper standard. Id.
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[8] On remand, the trial court held another hearing and issued an order that found
that, under the less burdensome preponderance of the evidence standard,
Father’s parenting time should be limited but not eliminated or supervised “to
allow for [Father] and [P.B.] to slowly reunify their relationship.” The court
therefore granted father six hours of parenting time every Saturday in addition
to Christmas Eve and New Year’s Day.
[9] Mother again appealed, and we affirmed. In re Paternity of P.B., No. 03A01-
1012-JP-653, 2011 WL 4834251 (Ind. Ct. App. Oct. 12, 2011). In so doing, we
noted that the trial court made no finding that parenting time with Father
would endanger P.B.’s physical health or well-being or would significantly
impair his emotional development. Id. at *3. In fact, instead of eliminating
Father’s parenting time as requested by Mother, the trial court determined that
Father should have six hours of unsupervised visitation per week. Id. We
therefore concluded that the trial court “determined that Mother did not meet
her burden to establish by a preponderance of the evidence that parenting time
with Father would endanger or impair P.B.” Id.
[10] Noting the evidence favorable to the trial court’s decision, we held that the trial
court’s decision to not eliminate Father’s parenting time was not an abuse of its
discretion.2 Id.
2
This evidence included:
Here, the allegations of inappropriate touching and disciplinary threats by Father were
investigated by authorities and determined to be unsubstantiated. Father denied the
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[11] Unsatisfied with this court’s decision, Mother sought rehearing. However, her
petition did not point out any legal or factual error in our decision and merely
asked us to reweigh the evidence. We denied Mother’s request but granted
rehearing for the limited purpose of awarding Father appellate attorney fees due
to Mother’s procedural bad faith in filing the petition for rehearing. In re
Paternity of P.B., 03A01-1012-JP-653, 2011 WL 6660408 (Ind. Ct. App. Dec. 20,
2011). The trial court subsequently awarded Father $1,024 in attorney fees
pursuant to our decision on rehearing and appointed a counselor to assist in the
reunification of Father and P.B.
[12] Alas, this was not the end of the parties’ conflict. Mother continued to refuse to
allow P.B. to visit Father. And P.B. began to refuse to visit Father. Therefore,
allegations at the hearing, and P.B. did not testify that Father touched him or disciplined
him inappropriately. Even though P.B. was alleged to suffer physical symptoms from
post-traumatic stress syndrome such as urinating or defecating in his pants, his daycare
records document no such incidents.
Rose Ellen Adams, a licensed social worker and Father’s friend, testified that she would
not hesitate to leave her own children with Father, and described Father’s involvement in
P.B.’s life as a non-custodial parent as “admirable.” Based on her observations, Father
does not discipline P.B. harshly, and instead uses “time out” and “redirection” methods.
Two teacher aides at P.B.’s school both testified that P.B. was not fearful when
interacting with Father, and instead appeared happy to see him when Father visited for
lunch. Two of P.B.’s football coaches also testified and both stated that P.B. did not
appear afraid of Father. To the contrary, P.B. was very loving towards Father, and the
two seemed to enjoy a loving father-son relationship.
Father’s brother also testified that P.B.’s relationship with Father is “positive” and that he
has never observed Father perform any actions around P.B. that would concern him.
Father’s landlord stated that Father’s discipline of P.B. was “very appropriate” and that
P.B. had “great respect” for Father. He added that P.B. always seemed happy to be with
Father, that they got along, and that P.B. was always smiling and happy regardless of
what they were doing.
Id. (transcript citations omitted).
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on February 13, 2012, Father filed a citation for contempt against Mother. Two
days later, Mother filed a petition to modify custody and a citation for contempt
against Father. The court held a hearing on these and other pending motions
over three days, and on November 9, 2012, entered the following findings and
conclusions:
Findings of Fact
3. In this Court’s Order on Remand of December 8, 2010,
[Father] was given parenting time as follows . . . . Despite the
clarity of this Order, [Father] has had no parenting time since December
25, 2009, because [Mother], by her own frank admission, has not allowed
it.
4. In May or June of 2010, [Father] attempted to attend an
“award ceremony” at [P.B.]’s school. A school official asked him
to leave, for reasons still unclear, and [Father] left so as not to
create a scene.
5. Since the Order on Remand of December, 2010, [P.B.] has
continued to counsel with William C. “Pete” Link. Mr. Link
also meets with [Mother], but has never met with [Father]. Mr.
Link’s basic opinion in 2012 is unchanged from his previous
opinion that something terribly bad has happened between [P.B.]
and [Father] and that [Father] have no parenting time with [P.B.]
and to permit parenting time will devastate [P.B.]
6. On or about December 19, 2011, on [Father]’s motion, a
“Reunification Counselor” was requested. On February 23, 2012,
the Court appointed psychologist Dr. Steven House, Ph.D.,
HSPP, of Columbus. Dr. House filed his forty-five (45) page
report with this Court on June 19, 2012. . . .
7. In the end, Dr. House opined that [Mother] is opposed to
any reunification or parenting time and that if parenting time is
to occur, it can only be after intervention and he recommended
Ms. Fran Taylor of Columbus.
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8. Since December 2009, there have been two remarkable
events which have occurred in this case:
A. Another Report to the Indiana Department of Child
Services, Bartholomew County Office. After the December,
2009, visit, [Mother] and later, Pete C. Link, reported [Father] to
the Indiana Department of Child Services, Bartholomew County
Office, for allegations arising during the visit. As had been the
case with all of [Mother]’s prior reports, the Bartholomew
County Office investigated the allegations and determined them
to be “unsubstantiated”. Despite [Mother]’s best efforts to
dismiss this finding as vague or meaningless, the Bartholomew
County Office AGAIN chose to take no action.
What Ms. Gordon of the Bartholomew County Office did
recommend to [Mother] and [Father] was that [Mother] take
[P.B.] to the Child Advocacy Center for further interview and
investigation. [Mother] has not done so.
B. Report to the Columbus Police Department. As a result of
the December 2009 visit, [Mother] also reported [Father] to the
Columbus Police Department for allegations of inappropriate
sexual contact with [P.B.]. This occurred on December 28, 2009.
The Columbus Police Department conducted an investigation
and found the allegation was without merit. The report was not
even forwarded to the Bartholomew County Prosecutor’s Office.
9. [R.B.], [Father]’s brother, testified that during the Christmas
2009 visit, all was well and saw no reason for concern.
10. After nearly four (4) [y]ears of accusations, days and days of
trial time and an appeal to the Indiana Court of Appeals, there
has yet to be one (1) criminal charge filed against [Father] nor
any substantiated reports by the Indiana Department of Child
Services, despite the fact there have been no less than four (4)
reports made against [Father]. Coupled with this is now eleven
(11) year old boy who seems to function in his day-to-day life and
[Father], who by everyone’s account, except [Mother] and [P.B.],
is a “normal” guy living and working a typical middle class life
and a loving father.
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11. [P.B.]’s allegations include [Father] holding a gun to his
head, sexually molesting him, throwing a chair at him, and
“infecting” him with scarlet fever, all of which seems greatly out
of character for [Father] and bizarre, to say the least. Conversely,
[Mother] and Pete Link insist [P.B.] hates [Father], wants him
dead, and suffers physically at the sight of [Father].
12. [Father] clearly recognizes the problem and has offered to do
anything to fix it. [Mother], unfortunately, has not.
Conclusions
***
14. Within the next thirty (30) days, [Father] shall arrange for he
and [P.B.] to meet and counsel with Fran Taylor, if requested by
her, and Fran Taylor shall be permitted to see Mr. Link’s reports,
if she deems it advisable.
15. Fran Taylor shall fashion a reunification schedule for
[Father] and [P.B.], unless she finds reunification is not possible
or would be harmful to [P.B.].
16. [Mother] shall fully cooperate with Fran Taylor, in making
certain [P.B.] attends all scheduled visits and nothing in this
Order shall preclude [Mother] from participating with Fran
Taylor if Fran Taylor believes it helpful.
17. If not already paid in full, [Mother] shall pay one thousand
twenty-four dollars ($1,024.00) to [Father’s appellate attorney] by
November 30, 2012 with eight percent (8%) interest retroactive to
March 8, 2012. These are the previously ordered appellate
attorney fees.
18. [Mother]’s petition to modify is denied.
19. Both [Mother] and [Father] have willfully disregarded this
Court’s previous orders. [Mother] by flatly refusing any parenting
time, and [Father] by non-payment of child support. Both are in
contempt. Both shall pay their own attorney fees.
20. [Father] shall continue to pay his child support of one
hundred seventy-four dollars and fifty cents ($174.50) plus thirty
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dollars ($30.00) per week on the arrearage of seven thousand six
hundred seventy-seven dollars and fifty cents ($7,677.50) as of
and including September 23, 2012.
21. No youngster should have to endure what [P.B.] has during
his first eleven (11) years of life. One of his parents, frankly, is, at
best, a chronic, manipulative liar with no regard for [P.B.]. This
Court is unable to determine which one it is, but [P.B.] knows
and soon the day will come when he is old and mature enough to
tell. Hopefully, the emotional damage will not be so severe that
he suffers a lifetime from it.
Appellant’s App. pp. 76-80 (bold emphasis in original, italic emphasis
supplied).
[13] The parties subsequently met with the reunification counselor, Ms. Taylor, who
issued a report to the trial court on March 18, 2013. In her report, Ms. Taylor
noted the animus between the parties and recommended: (1) P.B. continue
therapy, (2) “when [P.B.] is ready, [Father] would be introduced into the
therapeutic setting allowing [P.B.] to express his anger and concerns to his
father in a therapeutic manner with supervision,” and (3) professionally
supervised visitation for P.B. and Father when it was deemed appropriate.
Appellant’s App. p. 82.
[14] Thereafter, Father filed another contempt citation against Mother, claiming that
she refused to bring P.B. to the counseling sessions with Ms. Taylor. Mother
filed her own contempt citation against Father for failure to pay child support
and denied that she had failed to comply with the court’s earlier order. Ms.
Taylor then filed an updated report with the trial court, again recommending
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counseling for Father and P.B. On August 7, 2013, the trial court ordered both
parents to cooperate and participate with the counselor.
[15] On October 13, 2013, Mother filed yet another citation for contempt, again
alleging that Father was in arrears on his child support obligation. Father filed
another citation for contempt on October 30, 2014, alleging that Mother was
still failing to cooperate with reunification and obstructing his parenting time.
At the same time, Father filed petitions to enforce the trial court’s December 8,
2010 reunification and parenting time order.
[16] The trial court held a hearing on these pending matters on June 1, 2015. The
trial court also held an in camera interview with P.B. On July 15, 2015, the trial
court issued the order that is the subject of the current appeal, which provided
in relevant part:
2. [P.B.] turned fourteen (14) . . . and will be an eighth grader at
[middle school]. He is a physically healthy young man. He is
well mannered, well spoken and articulate.
***
4. Th[e] [child support] arrearage shall be paid at the rate of
Thirty and no/100 Dollars ($30.00) per week as previously
ordered.
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5. There is no evidence [Mother] is using a name other than
[P.B.] as ordered by Judge Heimann on December 8, 2008. His
official school records do not show otherwise.[3]
6. [Father] has not seen his son in a parenting time visit since
December 2009. In the intervening five (5) years, this Court has
tried and tried to implement a plan for reunification, all having
failed for a host of reasons, but most significantly by [P.B.]’s
refusing to see [Father].
7. [Mother] has again made it quite clear she will not abide by any
Court Order that forces [P.B.] to visit [Father].
8. Courts throughout Indiana are faced with the dilemma faced
by this Court. How do you force parenting time between a
fourteen (14) year old child and a parent? [P.B.] is presently six
(6) feet tall. He is a young man. We cannot grab him and force
him to go. We cannot strap him in his car seat. We cannot keep
him from running away, if he is forced to go with [Father]. Yet,
he is the child, not the parent. Could he also abate [Father]’s
obligation to pay child support? Thus, the dilemma. This Court
has tried and tried to fashion a remedy, including counseling, and
without [P.B.] being a willing participant, counseling is a waste
of time and money.
9. The Court declines to force parenting time upon a fourteen
(14) year old young man adamant about having no contact or
relationship with his Father.
10. [Father]’s Petition for Citation for Contempt is denied.
[Father]’s Petition to Enforce Parenting Time Order is denied.
[Father]’s Petition to Enforce Reunification Order is denied.
[Father]’s Petition for Citation for Contempt of October 29, 2014
is denied. [Mother]’s Petition and Application for Citation for
Contempt for Failure to Pay Child Support is Denied.
3
Contrary to this finding, P.B.’s school records, which were admitted into evidence, show that P.B. was
registered at school using a compound or hyphenated last name composed of both Mother and Father’s last
names. Ex. Vol., Respondent’s Ex. B-2. Father makes no claim of error in this regard.
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11. Each party shall pay their own attorney’s fees and costs
incurred herein.
Appellant’s App. pp. 112-13.
[17] Father filed a motion to correct error on August 14, 2015, and the trial court set
the matter for a hearing to be held on December 3, 2015. Following the hearing,
the trial court issued an order denying the motion to correct error on December
7, 2015. Father now appeals.
Discussion and Decision
[18] On appeal, Father claims that the trial court erred when it failed to enforce its
previous visitation orders. Father contends that the effect of the trial court’s
ruling is to wholly deprive him of parenting time, which is improper without a
finding that parenting time would endanger P.B.’s physical or mental wellbeing.
[19] The right of a non-custodial parent to visit with his or her children is a sacred
and precious privilege, and, ideally, a child should have a well-founded
relationship with both parents. Appolon v. Faught, 796 N.E.2d 297, 300 (Ind. Ct.
App. 2003). Accordingly, it has been held that:
[e]xtraordinary circumstances must exist to deny parenting time
to a parent, which necessarily denies the same to the child. If the
trial court finds such extraordinary circumstances do exist, then
the trial court shall make specific findings regarding its
conclusion that parenting time would endanger the child’s
physical health or significantly impair the child’s emotional
development.
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Perkinson v. Perkinson, 989 N.E.2d 758, 765 (Ind. 2013). This language from
Perkinson tracks that of Indiana Code section 31-17-4-1, which provides that “[a]
parent not granted custody of the child is entitled to reasonable parenting time
rights unless the court finds, after a hearing, that parenting time by the
noncustodial parent might endanger the child’s physical health or significantly
impair the child’s emotional development.” Even though the statute uses the
word “might,” this Court has previously interpreted the language to mean that
a court may not restrict parenting time unless that parenting time “would”
endanger the child’s physical health or emotional development. Hatmaker v.
Hatmaker, 998 N.E.2d 758, 761 (Ind. Ct. App. 2013).
[20] The party who seeks to restrict a parent’s visitation rights bears the burden of
proving by a preponderance of the evidence a justification for such a restriction.
Id. As in all parenting time controversies, courts are required to give foremost
consideration to the best interests of the child. Id. On appeal, we review and
will reverse a trial court’s determination of a parenting time issue only for an
abuse of discretion. Id.
[21] Father claims that this appeal is about his being deprived parenting time.
Mother, however, claims it is simply about the trial court exercising its
discretion to not find her in contempt. We think these two issues are
inextricably interwoven in the present case because of Mother’s long and
admitted history of interfering with Father’s parenting time. Thus, Father’s
request to hold Mother in contempt was an effort to enforce the already existing
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order that he have parenting time. We therefore address both the issues of
parenting time and contempt.
[22] We first note that it is apparent from the face of the trial court’s order that the
court did not find that parenting time by Father would endanger the P.B.’s
physical health or significantly impair P.B.’s emotional development. Indeed,
this court has already viewed the trial court’s December 2009 order as not
finding that P.B.’s physical health would not be endangered and his emotional
development would not be significantly impaired by parenting time with
Father. See In re Paternity of P.B., No. 03A01-1012-JP-653, 2011 WL 4834251 at
*3. The trial court reaffirmed this view in its order of November 2012, when it
yet again denied Mother’s request to deny Father parenting time. In its most
recent order, the trial court does not suggest it has suddenly concluded
otherwise.
[23] The trial court also found, however, that Father has not had parenting time
with P.B. since December 2009. Although part of this is obviously due to P.B.’s
desire, rightly or wrongly, not to see his father, a great portion of it must be
placed at the feet of Mother. From December of 2009, Mother has completely
denied Father court-ordered parenting time. Indeed, the trial court specifically
found in its 2012 order that Father had not had any parenting time because of
Mother’s “frank admission” that she had not allowed it. Again in its most
recent order, the trial court specifically found that Mother “will not abide by
any Court Order that forces [P.B.] to visit [Father].” Appellant’s App. p. 112.
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[24] In light of this stark admission, we are at a loss as to why the trial court found
that Mother was not in contempt. She has, over the past several years,
repeatedly and flagrantly disobeyed the trial court’s parenting time orders,
orders that have been affirmed on appeal by this court. Under these facts and
circumstances, we have little choice but to conclude that the trial court abused
its discretion when it concluded that Mother was not in contempt for failing to
abide by the trial court’s previous parenting time and reunification orders. On
remand, the trial court should determine what sanction is appropriate to
remedy Mother’s obstinate disregard for the trial court’s authority.
[25] While we sympathize with the dilemma with which the trial court was faced,
the proper solution was not to refuse to enforce its orders. Instead, the trial
court should have used its authority to ensure that its orders are obeyed and not
disregarded as mere suggestions. No one, especially not a parent, should be
under the impression that compliance with the trial court’s parenting time order
is optional.
[26] Because the trial court declined to enforce its earlier parenting time order,
Father is left with no parenting time. Yet, as noted above, no finding would
support the deprivation of Father’s parenting time. It is obvious that this is a
difficult situation. Either Father abused his son or he did not. However, no
charges have ever been filed against Father for his alleged behavior. In fact, all
of the investigations have determined that the reports were unsubstantiated.
More importantly, the trial court has never found that parenting time with
Father would be harmful to P.B. Instead, the trial court has repeatedly declined
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to deprive Father of parenting time and, instead, has ordered a process of
gradual reunification. However, this reunification cannot take place unless the
trial court’s orders are enforced and obeyed.
[27] We therefore conclude that the trial court’s order currently on appeal must be
reversed. The trial court abused its discretion in concluding that Mother was
not in contempt for her admitted refusal to follow the clear mandate of the trial
court’s earlier orders. If Father is to be deprived of his right to parenting time
with his son, the law requires a finding that such parenting time would
endanger his physical health or significantly impair his emotional development,
but no such finding is in the record. We therefore reverse the trial court’s order
and remand with instructions that the trial court enter a contempt sanction
against Mother that will be sufficient to enforce its parenting time order.
[28] Reversed and remanded for proceedings consistent with this decision.
Vaidik, C.J., and Barnes, J., concur.
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