In re the Paternity of E.E., J.E. v. T.C. (mem. dec.)

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), this Nov 22 2016, 9:01 am

Memorandum Decision shall not be CLERK
Indiana Supreme Court
regarded as precedent or cited before any Court of Appeals
and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Michael T. Hotz David W. Stone, IV
Spitzer Herriman Stephenson Stone Law Office & Legal Research
Holderead Conner & Persinger, LLP Anderson, Indiana
Marion, Indiana

IN THE
COURT OF APPEALS OF INDIANA
In re the Paternity of E.E., November 22, 2016
J.E., Court of Appeals Case No.
27A04-1601-JP-204
Appellant-Petitioner,
Appeal from the Grant Superior
v. Court
The Honorable Jeffrey D. Todd,
T.C., Judge
Trial Court Cause No.
Appellee-Respondent. 27D01-1109-JP-928

Brown, Judge.

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[1] J.E. (“Father”) appeals from the order of the trial court awarding custody of

E.E. (“Child”) to T.C. (“Mother”). Father raises four issues which we

consolidate and restate as whether the court erred in determining the custody of

Child. We affirm.

Facts and Procedural History

[2] Child was born to Father and Mother on January 12, 2009, when Father was

eighteen years old and Mother was sixteen years old. Mother and Father lived

together several times during the first two and one-half years of Child’s life. At

some point, Father and Mother separated permanently, and sometime in March

2011 Father and Child moved in with Father’s father (“Grandfather”) and

mother (“Grandmother,” and together with Grandfather, “Grandparents”).

[3] On September 14, 2011, Father filed a Petition to Establish Paternity and for

Emergency Custody. On October 31, 2011, the court issued an Agreed Order

stating that the parties agreed that Father would have temporary custody of

Child until further order of the court, that Mother would have

supervised/restricted parenting time, and that, should something happen to

Father, Grandparents would be appointed custodians over Child. At some

point, Mother relocated from Marion, Indiana, to Decatur, Indiana, and

traveled to Marion to exercise parenting time with Child.

[4] On October 8, 2014, Mother filed a Petition to Modify Custody and requested a

hearing, and the court later appointed a guardian ad litem (the “GAL”). The

court held an evidentiary hearing on September 29 and November 5 and 6,

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 2015, at which it heard testimony from, among others, Father, Mother, child

services workers, Grandfather, Child’s school teacher, Mother’s current

husband, and a school psychologist. Father filed proposed findings of fact on

November 24, 2015, and Mother filed proposed findings of fact on December 1,

2015.

[5] On December 31, 2015, the court entered Findings of Fact, Conclusions of Law,

and Order for Judgment and attached a child support worksheet. Under a

heading for findings of fact, the court found that Father’s September 2011

petition resulted from the fact Child had been physically abused on or about

August 26, 2011 while in Mother’s care, and the abuse was immediately

reported to authorities, Mother was at work when the abuse occurred but

acknowledged that she was using drugs at that time in her life, she was not

charged criminally, and she and her boyfriend fled to Florida for approximately

ten days.1 The court found that Mother exercised supervised/restricted

parenting time until May 15, 2012, at which time the court entered an order

granting her unsupervised visitation, that on June 11, 2013, the court held a

hearing after which it ordered her parenting time to be supervised,2 and that

1
When asked how she returned, Mother testified she went to a place where there was a police officer, she
was taken to hospital, her mother was contacted, and her mother and grandfather picked her up at the
hospital.
2
The court found that, after the May 15, 2012 order, Mother violated the order by allowing non-family
members to be present during her parenting time, as a result Father had petitioned to again restrict her
parenting time, the court held a hearing on June 11, 2013, at which Mother failed to appear and of which she
claims not to have received timely notice, and that following the presentation of evidence the court again
ordered Mother’s parenting time to be supervised.

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 Mother thereafter relocated from Marion, Indiana to Decatur, Indiana with her

then boyfriend because he found a higher paying job in Decatur.

[6] The court found that Mother consistently traveled from Decatur to Marion over

the next two years to exercise parenting time with Child, that her time with

Child was sometimes supervised by Father but the majority of her visits were

primarily supervised by Grandfather, and that the parenting time sessions were

difficult in part because the two men supervising her time did little to hide their

animosity toward her. The court found that despite these difficulties Mother

continued to exercise her parenting time with Child when she was pregnant with

twins and after she gave birth to them, one of whom has special medical

needs, in August 2013. The court also noted that Mother filed her petition on

October 8, 2014, that by agreement she was granted unsupervised parenting time

on June 29, 2015, that this parenting time had gone well, and that Mother has

a high school degree and had not used illegal drugs for over four years. The

court found that Father has a GED and that, since October 31, 2011, he has

worked numerous jobs, mostly on third shift.

[7] The court further found that the evidence presented clearly demonstrates that

Grandparents had been Child’s primary caregivers and de facto custodians for

the last four years and that during this time Child has primarily lived at

Grandparents’ home where he has remained at least five nights per week. The

court stated it is troubled by the fact Grandfather routinely strips Child and

photographs him after Mother exercises parenting time, that Grandfather has

taken nearly one hundred photographs of Child, and that Father has done

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 nothing to stop it. It found that Father lost his job as a warehouse worker in

September 2015 and currently lived in Grandparents’ home, that he recently

became employed as a first shift cashier at a gas station and intends to continue

residing at Grandparents’ home, and that, unlike the majority of his life during

which he worked third shift jobs, Father believes his current job will allow him

to spend more time with Child before and after school.

[8] The court noted that Child was enrolled in the first grade, has experienced

problems since starting elementary school and was found to qualify for special

education services due to his emotional disability, that an individual education

plan had been developed to help Child, and that there have been some

improvements in Child’s behavior and performance since the plan was

implemented. The court found that Grandfather has been much more active

than Father in monitoring Child’s school progress, and that Grandfather and

Father would not tell Mother where Child was going to school and told her she

was not permitted to contact Child’s school. The court noted that the GAL,

after a thorough investigation, tendered a report recommending that Mother be

awarded primary physical custody of Child, that Mother has matured

significantly since she gave birth to Child at a very young age, and that she is

now married to a responsible man who has a good job and is supportive of her.

It also noted that Mother’s nurturing qualities were apparent to the court, and

that on the other hand Father does not appear to have matured significantly

since Child’s birth, has either left or been terminated from numerous jobs, has

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 married and divorced, has moved in and out of his parents’ home, and did not

exhibit nurturing qualities when he testified.

[9] In its conclusions of law, the court stated that, while a permanent custody order

was never entered, Father’s position was that the proceeding was one to modify

custody and that Mother captioned the pleading giving rise to the proceeding as

a petition to modify custody. The court noted there is precedent for using a

modification standard when a parent acquiesces to an emergency order that has

been in place for years, that nonetheless counsel for the parties met the court in

chambers minutes before the hearing on Mother’s petition and agreed that this

was an initial permanent custody determination, and that thereafter the court

announced on the record before any evidence was presented that this was an

initial custody determination and Father offered no objections. The court

concluded that Father waived any claim of error that the trial court used an

incorrect legal standard.

[10] The court concluded that the GAL’s report contains sound reasoning and was

issued following a thorough investigation, that it is in the best interest of Child

that Mother be awarded primary physical custody, and that Mother has

demonstrated she is the more mature, nurturing, and engaged parent which is

especially important as Child suffers from an emotional disability. The court

further concluded that, “[e]ven if it were to apply the stricter modification of

custody standard . . . , the Court finds that a modification of custody in favor of

Mother is in the best interest of child, and there is a substantial change in one

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 (1) or more of the factors considered under Ind. Code § 31-14-13-6,”3 namely,

that Child has been primarily cared for by Grandparents and that Child has

developed significant emotional and behavioral issues since the emergency

custody order was entered. The court ordered that Mother maintain primary

physical custody, that Father and Mother have joint legal custody, and that

Father have parenting time pursuant to the Indiana Parenting Time Guidelines

and pay child support of thirty-four dollars per week.

Discussion

[11] The issue is whether the trial court erred in the determining custody of Child.

The trial court’s findings control as to the issues they cover and a general

judgment will control as to the issues upon which there are no findings. Yanoff

v. Muncy, 688 N.E.2d 1259, 1262 (Ind. 1997). When a trial court has made

findings of fact, we apply the following two-tier standard of review: whether the

evidence supports the findings of fact, and whether the findings of fact support

the conclusions thereon. Id. Findings will be set aside if they are clearly

erroneous. Id. Findings are clearly erroneous only when the record contains no

facts to support them either directly or by inference. Id. A judgment is clearly

erroneous if it applies the wrong legal standard to properly found facts. Id. To

3
Ind. Code § 31-14-13-6 provides:
The court may not modify a child custody order unless:
(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.

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 determine that a finding or conclusion is clearly erroneous, our review of the

evidence must leave us with the firm conviction that a mistake has been made.

Id. A general judgment entered with findings will be affirmed if it can be

sustained on any legal theory supported by the evidence. Id.

[12] Father asserts the trial court erred in failing to apply the standard applicable to a

request for a modification of custody, that he did not waive this argument, and

that he made the argument in his proposed findings. In addition, Father

contends that the evidence does not support the trial court’s findings that

Grandparents were de facto custodians of Child, that the court did not make

findings that Grandparents provided the majority of Child’s financial support,

that “[w]hile [Child’s] time with Grandparents varied throughout the four years

prior to the Court judgment, the record is filled with testimony that Father

cared for [Child] regularly,” and that the findings “essentially penalized Father

for allowing Grandparents to care for his son when at work.” Appellant’s Brief

at 18. Father also asserts the court did not properly examine all the statutory

factors in examining the best interest of Child including the wishes of Child,

Father’s interaction and relationship with Child, Child’s adjustment to his

home, school, and community, and the mental and physical health of Child if

forced to relocate.

[13] Mother maintains the court correctly treated the case as involving an initial

determination of custody because Father had been previously given temporary

custody and the court had not entered a permanent custody order, that there

was agreement of counsel for both parties that this was an initial custody

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 determination, that Father made no effort during the presentation of evidence to

claim that the proceeding was a modification hearing, and that Father has

waived this claim of error. Mother notes that the court’s order stated that

Grandparents never sought permanent custody and, accordingly, the custody

dispute is solely between Father and Mother, and she argues that any error by

the court in stating that Grandparents were de facto custodians is harmless since

it played no role in the court’s decision. Mother further argues the evidence

shows Child spent the vast majority of his out of school time with Grandparents

and that the GAL’s report concluded that it appears Grandparents were the ones

taking care of most of Child’s primary needs. In addition, Mother argues the

court properly awarded custody to her, that Father did not present any

evidence regarding Child’s wishes and Child was six years old at the time of the

court’s decision, and that the court made a number of statements regarding

Father’s relationship with Child and Child’s school performance which Father

does not challenge.

[14] We observe that, following Father’s September 14, 2011 Petition to Establish

Paternity and For Emergency Custody, the trial court entered an Agreed Order

on October 31, 2011, which provided that “[t]he parties agree that [F]ather shall

have the temporary custody of the parties’ minor son until further order of the

court.” Appellant’s Appendix at 75. Although Mother’s October 8, 2014

motion requesting a hearing was captioned a petition to modify custody, the

trial court clarified at the very beginning of the evidentiary hearing that it was

making an original custody determination. Specifically, the court stated:

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 Alright, just a few matters for the record before we actually begin
with the presentation of evidence. This is an older file. The
original Petition for Paternity and Custody was filed back in
2011. The only Order that’s ever been entered was an
Emergency Order. There’s never been a permanent custody
determination. So this is not a modification hearing. This is an
original determination of permanent custody. . . .

Transcript at 3. Father does not argue or point to the record to show that he

objected to the trial court’s determination at that time or at any point during the

evidentiary hearing or argued to the trial court that the standard for custody

modification should apply because Mother acquiesced to an emergency custody

order. Accordingly, Father has waived our consideration of whether the

determination was one of initial custody or change of custody. See Werner v.

Werner, 946 N.E.2d 1233, 1245-1247 (Ind. Ct. App. 2011) (holding that the

mother waived her claim of error and observing that a timely objection is a

prerequisite to appellate review) (citing Trout v. Trout, 638 N.E.2d 1306, 1307-

1308 (Ind. Ct. App. 1994), trans. denied), trans. denied.4

[15] A trial court’s custody determination is afforded considerable deference as it is

the trial court that sees the parties, observes their conduct and demeanor, and

hears their testimony. Kondamuri v. Kondamuri, 852 N.E.2d 939, 945-946 (Ind.

Ct. App. 2006). Thus, on review, we will not reweigh the evidence, judge the

credibility of witnesses or substitute our judgment for that of the trial court. Id.

4
To the extent the language of Werner may be unclear regarding waiver under these circumstances, we note
that a party cannot waive application of the appropriate standard of review.

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 at 946. We will reverse the trial court’s custody determination only if it is

clearly against the logic and effect of the facts and circumstances or the

reasonable inferences drawn therefrom. Id.

[16] The standard for an initial custody determination is set forth in Ind. Code § 31-

14-13-2, which provides:

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.

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 (8) Evidence that the child has been cared for by a de facto
custodian, and if the evidence is sufficient, the court shall
consider the factors described in section 2.5(b) of this
chapter.

[17] Ind. Code § 31-9-2-35.5 provides:

“De facto custodian”, for purposes of IC 31-14-13, IC 31-17-2,
and IC 31-34-4, means a person who has been the primary
caregiver for, and financial support of, a child who has resided
with the person for at least: (1) six (6) months if the child is less
than three (3) years of age; or (2) one (1) year if the child is at
least three (3) years of age.
Any period after a child custody proceeding has been
commenced may not be included in determining whether the
child has resided with the person for the required minimum
period. . . .

[18] Ind. Code § 31-14-13-2.5(b) provides:

In addition to the factors listed in section 2 of this chapter, the
court shall consider the following factors in determining custody:
(1) The wishes of the child’s de facto custodian.
(2) The extent to which the child has been cared for, nurtured,
and supported by the de facto custodian.
(3) The intent of the child’s parent in placing the child with
the de facto custodian.
(4) The circumstances under which the child was allowed to
remain in the custody of the de facto custodian, including
whether the child was placed with the de facto custodian
to allow the parent now seeking custody to:
(A) seek employment;
(B) work; or

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 (C) attend school.

[19] We observe that the trial court entered findings that Grandparents have never

sought permanent custody of Child and that, accordingly, the custody dispute is

solely between Father and Mother. Ind. Code § 31-14-13-2 requires a trial

court, in making a custody determination in accordance with the best interests of

the child, to consider all relevant factors including evidence the child has

been cared for by a de facto custodian under subsection (8) and also evidence of

the other factors listed in subsections (1) through (7). Even if Grandparents were

not de facto custodians, the court was required to consider the interaction

and interrelationship of Child with his “parents . . . and . . . any other person

who may significantly affect [Child’s] best interests” under Ind. Code § 31-14-

13-2(4). The trial court’s findings reflect that, in determining whether to award

primary physical custody to Mother or Father, the court considered the extent to

which Child was cared for, nurtured, and supported by Grandparents and the

circumstances under which Child stayed with Grandparents. Further, the

evidence before the court included testimony regarding Father’s employment

and work schedule since he and Mother separated, the extent to which Father

and Child lived with Grandparents, the extent of the involvement of Father and

Grandparents in making decisions related to the care of Child, and the GAL’s

report regarding the involvement of Father and Grandparents in Child’s life,

including the GAL’s conclusions that it appeared Grandparents were the ones

taking care of most of Child’s primary needs. The court was troubled by the fact

Grandfather routinely strips Child and photographs him after Mother

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 exercises parenting time, that Grandfather has taken nearly one hundred

photographs of Child during this ritual, that despite making several reports no

charges have ever been filed against Mother, and that while Father knows about

the ritual and claims to disagree with it, he has done nothing to stop it.

[20] The trial court’s findings and conclusions reflect that it considered the other

factors set forth in Ind. Code § 31-14-13-2 as well. The order demonstrates the

court considered evidence of Child’s abuse, the interaction of Child and

Mother, Father, and Grandfather, Child’s adjustment in school, and the age,

mental health, and development of Child and the maturity of Mother and

Father. In particular, the court issued findings regarding the abuse of Child in

August 2011 and the subsequent investigation; Mother’s participation in

parenting time with Child and how well the parenting time had gone; the

previous conduct of Father and Grandfather during Mother’s parenting time;

Mother’s employment and the fact she is married to a responsible person who

has a good job and Father’s education, living arrangements, and numerous jobs

since October 2011. The order notes Child’s problems since starting school

including anger control, anxiety, difficulty starting and finishing tasks, difficulty

following instructions, and that he has urinated on other students; Child’s

evaluation by a school psychologist and qualification for special education

services, his individual education plan, his relative improvement since the plan

was implemented, and Father’s lack of interest in the psychologist’s report or

the education plan; and the behavior of Father and Grandfather in not telling

Mother where Child attended school and that she was not permitted to contact

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 Child’s school. The court stated it was very troubled by the fact Father only

skimmed the school psychologist’s report and did not appear particularly

interested in the report’s findings and that Father did not know Child’s

diagnosis and referred to it as “a big word.” Appellant’s Appendix at 13. The

court also found that Child began receiving counseling in late September 2015

and stated that it was difficult to understand why Father waited so long to seek

counseling for Child.

[21] With respect to Father’s argument that the court did not properly address the

opinions of Child’s teacher and school psychologist, the record shows that

Child’s teacher testified that she witnessed Child’s behaviors of name calling,

pulling down his pants in public, urinating on the floor and on other students,

hitting himself, stabbing himself with a pencil, and hitting, kicking, and pushing

other students, and that Child’s behavior did not improve “a lot” throughout the

school year but “a little to the positive towards the end of the year.”

Transcript at 228. The court also heard the testimony of the school

psychologist regarding her evaluation of Child, that Child’s individual

education plan would follow Child to whichever school system Child enrolls,

and that she could not speak to the level of support Child might receive at

another school.

[22] With respect to the wishes of Child, Ind. Code § 31-14-13-2 provides that a

court shall give more consideration to the child’s wishes if the child is at least

fourteen years of age. The court found that Child was born on January 12,

2009, and Father does not point to the record to show that he presented

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 evidence regarding Child’s wishes which the court failed to consider. The

GAL’s report indicated that she did not believe the age and sex of the child

favored an award of custody to either parent and that Child does not have the

emotional capacity to make a decision of this magnitude and is in no way able

to weigh in on this type of a decision. The court heard the testimony of Father,

Mother, Grandfather, Child’s teacher and school psychologist, and Mother’s

current husband, and counsel for the parties thoroughly examined each of the

witnesses. In light of the findings and conclusions of the court and the

testimony presented at the evidentiary hearing, we cannot say that the trial

court failed to consider Father’s interaction with Child, Child’s adjustment to

his home, school, and community, the mental and physical health of Child, or

the opinions of Child’s teacher or school psychologist.

[23] Based upon the record and the trial court’s order, we conclude that the trial

court did not err in determining that Mother shall have primary physical

custody of Child.

Conclusion

[24] For the foregoing reasons, we affirm the trial court’s custody determination.

[25] Affirmed.

Robb, J., and Mathias, J., concur.

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