K.M. v. A.M. (mem. dec.)

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D),
Aug 11 2016, 8:39 am
this Memorandum Decision shall not be
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Shana D. Tesnar Kathleen M. Meek
Adler Tesnar & Whalin Bowen & Associates, LLC
Noblesville, Indiana Carmel, Indiana

IN THE
COURT OF APPEALS OF INDIANA

K.M., August 11, 2016
Appellant-Respondent, Court of Appeals Case No.
29A02-1602-DR-258
v. Appeal from the Hamilton Circuit
Court
A.M., The Honorable Paul A. Felix,
Appellee-Petitioner Judge
Trial Court Cause No.
29C01-1403-DR-2047

Baker, Judge.

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[1] K.M. (Mother) appeals the order of the trial court, which modified her

parenting time to be contingent on her participation in mental health treatment.

Finding that the trial court made no error by modifying Mother’s parenting

time, we affirm.

Facts
[2] Mother and A.M. (Father) were married on April 10, 1999, and had four

children together. In March 2014, Father filed a petition to dissolve the

marriage.

[3] The trial court ordered an evaluation of each parent by a custody evaluator, Dr.

Louis Pilipis. After completing the evaluation, Dr. Pilipis found that both

parents had mental health issues, but that Mother’s “mental health issues are

severe and chronic in nature and require longstanding treatment.” Appellee’s

App. p. 216. Dr. Pilipis found a 2013 incident particularly troubling, where

Mother stabbed Father in the back with a pair of scissors. Dr. Pilipis also found

that Mother frequently goes into a state of rage, and worried that if Father were

not around to bear the brunt of this rage, it might be directed toward the

children. Dr. Pilipis listened to several recordings that Father made of Mother’s

behavior. In one recording, Mother tells Father that one of their children “got

his ass whooped” for watching television instead of cleaning. Id. at 195.

Mother went on to refer to this child, who is developmentally disabled, as an

“ungrateful brat,” “selfish,” a “leech,” and a “resource drain.” Id. Throughout

this tirade, Mother threatened the child with further physical punishment.

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[4] After her evaluation, Dr. Pilipis recommended that Father be given physical

custody of the children and that Mother “be court ordered to participate in

mental health treatment, which should be frequent (i.e., at least twice a month)

and ongoing (i.e., for at least 6 months). Parenting time should be contingent

upon [Mother] adhering to court ordered treatment recommendations.” Id. at

219.

[5] The parties mediated a dissolution decree, and a final settlement agreement (the

Agreement) was approved by the trial court on November 5, 2014. As part of

this Agreement, the parties agreed that Father would have sole legal and

physical custody of the children, and that Mother would have three hours of

supervised parenting time per week, subject to further orders by the trial court.

[6] On February 11, 2015, Father petitioned the trial court to modify the parenting

time arrangement. He argued that several alleged incidents that had taken

place since the settlement agreement indicated that Mother’s untreated mental

illness was resulting in harm to the children. He requested that the trial court

modify the Agreement to adopt the recommendation of Dr. Pilipis that any

future supervised visitation by Mother be contingent on her participating in

psychiatric treatment. Appellant’s App. p. 45.

[7] On April 2, 2015, Father filed an addendum to this petition, which informed

the trial court of the following. Mother had been using the Mending Fences

agency for her supervised visitations. On February 24, 2015, Mother attempted

to bring a concealed knife into the facility. When the staff questioned her, she

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 simply took the knife out to her car. Because this violated Mending Fences’

policy on not bringing weapons to supervised parenting time, Mending Fences

refused to conduct further supervised parenting time for Mother.

[8] The trial court held a hearing on the matter on October 27, 2015. At the

hearing, Dr. Pilipis reiterated her recommendation that Mother’s parenting

time be contingent on her engaging in intensive mental health treatment. She

expressed concern over the concealed knife incident, given that Mother had

previously stabbed Father. Father testified that Mother had not attempted to

contact him or the children since her visitation ended in February 2015. At the

hearing, Mother said she did not want to participate in mental health therapy

because she did not believe that she had any mental illness.

[9] Following the hearing, the trial court issued an order, which—among other

issues that are not before us—modified Mother’s parenting time,

to reflect that all of Mother’s supervised parenting time shall be
contingent upon Mother complying with the Court ordered
mental health treatment. However, Father does not have the
right to discontinue the parenting time simply because he believes
that Mother is not complian[t] with the Court ordered
counseling. Only the Court can make that determination, and
any decision by Father to discontinue Mother’s parenting time
can result in him being found in contempt.

Appellant’s App. p. 20. Mother was ordered to attend six mental health

treatment sessions over the course of six months. Id. On November 30, 2015,

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 Mother filed a motion to correct error, which the trial court denied on January

11, 2016. Mother now appeals.

Discussion and Decision
[10] Mother argues that the trial court erred by making her continued supervised

visitation contingent on her engaging in mental health treatment.

[11] Restriction or denial of parenting time is governed by Indiana Code section 31-

17-4-2, which 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.

Indiana recognizes that the right of a noncustodial parent to visit his or her

children is a “precious privilege.” Duncan v. Duncan, 843 N.E.2d 966, 969 (Ind.

Ct. App. 2006). Even though the statute uses the word “might,” courts have

long held that a noncustodial parent’s right to visit his or her child is important

enough that it should not be restricted unless it “would” endanger the child’s

physical health or emotional development. See Stewart v. Stewart, 521 N.E.2d

956, 960 n.3 (Ind. Ct. App. 1988). A party who seeks to restrict a parent’s

visitation rights bears the burden of presenting evidence justifying such a

restriction. Farrell v. Littell, 790 N.E.2d 612, 616 (Ind. Ct. App. 2003).

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[12] Mother points to Farrell for the proposition that the trial court was required to

make specific findings of fact before modifying the noncustodial parent’s

parenting time. However, we have previously distinguished that language to

only apply where “no parenting time was granted to the noncustodial parent,”

not where “parenting time was ordered to be supervised and within certain

parameters designed to protect the best interests of” the child. J.M. v. N.M., 844

N.E.2d 590, 599-600 (Ind. Ct. App. 2006) (emphasis original). Therefore, since

the trial court in this case explicitly refused to terminate Mother’s parenting

time, the trial court was not required to make specific findings of fact.

[13] Generally speaking, parenting time decisions are committed to the sound

discretion of the trial court. In re B.J.N., 19 N.E.3d 765, 769 (Ind. Ct. App.

2014). A trial court errs when its decision is clearly against the logic and effect

of the facts and circumstances before the court or if the court has misinterpreted

the law. Id. Where, as here, the trial court did not enter specific findings of

fact, a general judgment standard applies. Id. We may affirm a general

judgment on any theory supported by the evidence at trial. Id.

[14] We find ample evidence to support the judgment of the trial court. The trial

court was presented with the work of the custody evaluator, Dr. Pilipis, who

confirmed that Mother was suffering from borderline personality disorder and

bipolar disorder. Mother has been recorded being physically and verbally

abusive to the children. She has previously stabbed Father, and was caught

bringing a knife to a supervised visitation with her children. All of this evidence

would support a finding by the trial court that, absent mental health treatment,

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 parenting time would endanger the children’s physical health or significantly

impair the child’s emotional development.

[15] The trial court’s decision is abundantly justified by the facts and circumstances

before it—it ordered Mother, who has been diagnosed with mental illness and

has a history of family violence, to attend six mental health therapy sessions in

order to continue supervised visitations. The trial court made no error in this

regard.

[16] The judgment of the trial court is affirmed.

Vaidik, C.J., and Najam, J., concur.

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