MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Apr 15 2020, 8:41 am
regarded as precedent or cited before any CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Justin R. Wall Curtis T. Hill, Jr.
Wall Legal Services Attorney General of Indiana
Huntington, Indiana
Katherine A. Cornelius
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of A.J. (Child April 15, 2020
Alleged to be in Need of Court of Appeals Case No.
Services) and M.G. (Mother); 19A-JC-2740
M.G. (Mother), Appeal from the Wabash Circuit
Court
Appellant-Respondent,
The Honorable Robert McCallen,
v. III, Judge
Trial Court Cause No.
The Indiana Department of 85C01-1712-JC-95
Child Services,
Appellee-Petitioner
May, Judge.
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[1] M.G. (“Mother”) appeals the trial court’s order granting modification of
custody of A.J. (“Child”) to K.J. (“Father”). Mother argues modification of
custody was not in Child’s best interests and there had not been a substantial
change in circumstances as required by Indiana Code section 31-14-13-2. We
affirm.
Facts and Procedural History
[2] Mother gave birth to Child on November 18, 2012. In October 2014, Mother
filed a petition to establish paternity of Child and named Father as a potential
father because Mother knew Father for a brief time during the time of Child’s
conception. A DNA test confirmed paternity, and Father established paternity
of Child on February 4, 2015, in Miami County, Indiana. The trial court
granted Mother custody of Child and ordered Father to exercise parenting time
and pay child support. Father did not exercise parenting time on a regular
basis, but he began visiting with Child sporadically around May 2016. Father
paid all support as ordered.
[3] On November 30, 2017, the Department of Child Services (“DCS”) removed
Child and her younger sibling from Mother’s home after receiving and
substantiating a report that Mother was using illegal drugs. Child and her
younger sibling were placed with younger sibling’s father (“Stepfather”), who
did not live with Mother. On January 5, 2018, at a hearing before the Wabash
Circuit Court, Mother admitted Child and her younger sibling were Children in
Need of Services (“CHINS”). Father, who lived in Michigan, appeared before
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the court on January 5, 2018, and the trial court continued the initial hearing
regarding Child’s CHINS adjudication to January 26, 2018.
[4] On January 26, 2018, the trial court held Father’s initial hearing regarding
Child’s adjudication as a CHINS. Father admitted Child was a CHINS. The
trial court held the dispositional hearing for Mother and Father the same day.
The trial court ordered Mother to engage in homebased services, substance
abuse services, and drug screens. The trial court ordered Mother and Father to
remain in touch with DCS, maintain safe, suitable housing for Child, maintain
legal and consistent employment, and not consume alcohol or illegal
substances.
[5] From January 2018 to March 2018, Father regularly visited Child in her
placement with Stepfather. Father provided Child with clothes and offered to
help with expenses. Father and Stepfather spoke almost daily and were able to
communicate without conflict. Father attended all provider meetings and court
hearings, and he contacted DCS as required. During this time, Mother was
starting to engage in substance abuse services but was still testing positive for
illegal substances.
[6] On March 8, 2018, Mother filed a motion for change of placement and
visitation, asking the trial court to place Child with her or, in the alternative,
allow her visitation with Child. On March 15, 2018, Father filed a motion for
change of placement, asking the trial court to place Child with him. On March
23, 2018, the trial court held a hearing on Mother’s and Father’s competing
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motions for Child’s placement. The trial court granted Father placement of
Child, and Child moved with Father to Michigan. Upon adding Child to his
insurance policy in June 2018, Father scheduled Child to engage in therapy to
address some of her behavioral issues. Father also arranged for Child to get
glasses and receive dental treatment.
[7] On September 27, 2018, Father filed a motion for concurrent jurisdiction,
asking the trial court in the CHINS case to exercise jurisdiction over the
paternity case as well, because the two cases were in separate counties. The
trial court granted his motion the same day. On October 17, 2018, Mother
requested appellate counsel. The trial court granted her request but she later
dismissed the appeal. On November 27, 2018, DCS filed a permanency report
with the trial court indicating Mother had moved to Dayton, Ohio, to engage in
substance abuse treatment and individual counseling. The report also stated
that Mother’s drug screens had been negative since July 2018 and that Mother
was making progress towards reunification.
[8] Mother moved back to Peru, Indiana, in January 2019. On February 26, 2019,
Father filed a motion for modification of custody, asking the trial court to grant
him physical and legal custody of Child. On April 14, 2019, Mother began a
relationship with a married man, whose wife caused “drama” for Mother. (Tr.
Vol. III at 79.) Mother tested positive for non-prescribed Suboxone on March
14, 2019. In the Spring of 2019, while visiting with Mother, Child picked up a
hot rock from a fire and burned her hand. After that incident, Father denied
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Mother unsupervised visits. Mother subsequently did not see Child for eighteen
weeks, and Father reported Child’s behavior at home and school improved.
[9] The trial court held bifurcated hearings on the CHINS and custody issues on
May 30, 2019, and October 7, 2019. On October 31, 2019, the trial court
granted Father custody of Child and allowed Mother supervised parenting time
“as she and Father may reasonably agree.” (App. Vol. II at 232.) The trial
court “admonish[ed] Father to ensure he understands everything required of
him under the [Indiana Parenting Time] guidelines such as, without limitation,
communication and exchange of information.” (Id. at 233.) The trial court
ordered Mother to pay $20.00 per week in child support. The trial court also
stated in its order, “[p]ursuant to I.C. 31-30-1-13, this order shall survive the
termination of this CHINS proceeding and shall remain in effect until the
Paternity Court (Cause No. 52D01-1410-JP-66) reassumes primary jurisdiction
and modifies this Order.” (Id. at 234.)
Discussion and Decision
[10] When a party requests modification of custody, we review the court’s decision
for an abuse of discretion, because we give wide latitude to our trial court
judges in family law matters. Julie C. v. Andrew C., 924 N.E.2d 1249, 1256 (Ind.
Ct. App. 2010). A petitioner seeking modification has the burden to
demonstrate the existing custody arrangement needs to be altered. Id. As we
undertake our review, we neither reweigh the evidence nor assess witness
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credibility. Id. Rather, we consider only the evidence and inferences most
favorable to the trial court’s judgment. Id.
[11] Our legislature has defined the circumstances under which a custody order may
be modified following determination of paternity:
(a) The court may not modify a child custody order unless:
(1) the 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.
Ind. Code § 31-14-13-6. The factors the court may consider under Ind. Code §
31-14-13-2 include:
(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
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(C) any other person who may significantly affect the
child’s best interests.
(5) The child’s adjustment to the child’s home, school, and
community.
(6) The mental and physical health of all individuals involved.
(7) Evidence of a pattern of domestic or family violence by either
parent.
[12] When granting Father’s motion for modification of custody, the trial court
found:
As soon as [Child] was placed with him, Father got her into
counseling. Because of Father’s pro-active approach to engaging
in services for [Child], the local equivalent of the DCS in
Michigan felt it unnecessary to recommend any additional
services.
Thereafter, Father complied with [Child’s] case plan. Mother
partially complied with the case plan but she continued to have
issues with methamphetamine. Mother relapsed in July of 2018.
By all accounts, after that relapse, she has consistently tested
negative for any prohibited substances. During the pendency of
this action, Mother moved to the Dayton, Ohio area. She
testified she did so to change her people, places and things.
However, in January of this year she moved back to the area and
now lives in Peru, Indiana. The court was sorry to hear she has
now returned to the area because it was encouraged by her
decision to move away from the area for what the Court believes
were all the right reasons. Father has lived in Michigan since the
commencement of this proceeding. Mother is now living with a
man who, at the time of the last hearing, was still married. His
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soon to be ex-wife is apparently a source of strife in he and
Mother’s current household. Sadly, the chaos in Mother’s life
continues. To her credit, she has obtained a good job and, under
the circumstances, is probably doing the best she can. However,
the overarching concern of the Court is [Child’s] best interests.
[Child] is thriving in Father’s care and the serious behaviors she
was displaying following her removal from Mother have, for the
most part, subsided.
Eventually, Mother was awarded unsupervised parenting time
pursuant to the Indiana Parenting Time Guidelines and, to the
extent she was able, she exercised same. After parenting times
became unsupervised, Father noticed that [Child] was regressing
in her behaviors, which he attributed to unsupervised parenting.
As a result, he stopped allowing unsupervised visits. The Court
finds that his concerns justified his actions and that he is not in
contempt regarding parenting time. The Court further agrees
that, at this time, unsupervised parenting with Mother is harmful
to [Child’s] health and well-being.
Father’s Exhibit I[ 1] reflects that Mother has every intention of
attacking him, if given the opportunity. If only she could learn to
communicate, in an appropriate manner, her life would likely not
be as chaotic as it is. She lives a life of drama. She certainly was
not acting in [Child’s] best interests when she sent the text.
1
This exhibit is a text message from Mother to Father in which she indicated she would no longer cooperate
with Father.
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(App. Vol. II at 26-7) (original footnotes omitted) (footnote added). Mother
argues modification of custody was not in Child’s best interests 2 and that Father
did not prove there was a substantial change in circumstances as to warrant
modification.
1. Child’s Best Interests
[13] Mother argues the trial court’s order granting physical and legal custody of
Child to Father is not in Child’s best interests as required by Indiana Code
section 31-14-13-6 because the trial court “deliberately ignored Father’s lack of
care and effort to even maintain regular care and contact with Child until
March, 2018.” (Br. of Appellant at 19-20.) Mother urges this court to reverse
the trial court’s modification of custody order because Father did not act in
Child’s best interests when he was not involved in Child’s life prior to the
CHINS case and when Father denied Mother parenting time.
[14] However, Mother’s arguments ignore the evidence before the trial court that,
although Father was not involved in Child’s earliest years, when the CHINS
adjudication occurred, Father worked diligently to help Child and provide her
with a safe, suitable environment. Upon placement with Father, Child was
immediately engaged with a therapist who assisted Child with numerous
2
Mother also argues DCS was required to prove modification of custody was in Child’s best interests,
however, it is well settled that the party who petitions for custody modification has the burden of proof to
show modification is in Child’s best interests. See Julie C., 924 N.E.2d at 1256 (party who petitions for
modification of custody has the burden of proof to show the custody arrangement needs to be altered). That
party here is Father.
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behavior problems, which improved over time. Child’s therapist testified
Child’s anxiety increased and some disruptive behaviors resurfaced after
unsupervised visits with Mother. Father denied Mother unsupervised visits
with Child only after Child burned her had during visitation with Mother.
Mother reported Child had “picked up a hot rock that fell out of the fire.” (Tr.
Vol. III at 49.) Mother’s arguments are invitations for us to reweigh the
evidence and judge the credibility of witnesses, which we cannot do. See Julie
C., 924 N.E.2d at 1256 (appellate court does not reweigh evidence or judge the
credibility of witnesses). The trial court’s findings support its determination
that modification was in Child’s best interests.
2. Substantial Change in Circumstances
[15] Mother argues the trial court abused its discretion when it granted Father’s
petition for modification of custody because there was not a substantial change
in any of the factors listed in Indiana Code section 31-14-13-2. She asserts, “it
would appear that the trial court made its decision for Father despite all of
Mother’s positive actions, DCS and CASA’s recommendations, [and] Father’s
negative actions in thwarting Mother’s parenting time and communication.”
(Br. of Appellant at 24.) Mother contends the trial court focused on her failures
during the CHINS case, and not on the facts that she progressed in her journey
to sobriety and that she completed the services required by the CHINS
dispositional order. She also maintains the text message cited by the trial court
“is not an accurate representation of Mother’s co-parenting and communication
skills.” (Id. at 23.)
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[16] Mother’s arguments ignore the evidence presented supporting the trial court’s
decision. The original custody order was entered in 2015. In 2017, Child was
adjudicated as a CHINS based on Mother’s drug use. Immediately following
adjudicated, Child was placed with Father, who promptly engaged her in
therapy. Father presented evidence that Child’s behavior improved as a result
of therapy.
[17] The trial court noted that Father seemed to provide a stable atmosphere for
Child, while Mother continued to engage in activities that made her life chaotic.
Child’s therapist also testified that Child displayed anxiety when presented with
the possibility of moving between Mother and Father on a permanent basis.
Mother’s arguments are invitations for us to reweigh the evidence and judge the
credibility of witnesses, which we cannot do. See Julie C., 924 N.E.2d at 1256
(appellate court does not reweigh evidence or judge the credibility of witnesses).
The trial court did not abuse its discretion when it granted Father’s petition to
modify custody of Child. See Joe v. Lebow, 670 N.E.2d 9, 26 (Ind. Ct. App.
1996) (modification of custody supported by changes in circumstances
regarding child, including placement with non-custodial parent and
improvements in child’s mental and physical health because of that placement).
Conclusion
[18] The trial court did not abuse its discretion when it granted Father’s petition for
modification of custody because modification was in Child’s best interests and
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there had been a substantial change in circumstances as to warrant
modification. Accordingly, we affirm.
[19] Affirmed.
Robb, J., and Vaidik, J., concur.
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