In re the Matter of the Paternity of: C.A.S.R. (Minor Child), Tara Marie Seitz v. Christopher Adam Rhodaback (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jul 22 2020, 9:10 am

court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Bryan L. Ciyou JoAnn Jacob Krantz
Alexander N. Moseley Kristin T.M. McLaughlin
Ciyou and Dixon, P.C. Fine & Hatfield, P.C.
Indianapolis, Indiana Evansville, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In re the Matter of the Paternity July 22, 2020
of: C.A.S.R. (Minor Child), Court of Appeals Case No.
19A-JP-1527
Tara Marie Seitz, Appeal from the Warrick Superior
Court
Appellant-Petitioner,
The Honorable Leslie C. Shively,
v. Special Judge
Trial Court Cause No.
Christopher Adam Rhodaback, 87D02-1206-JP-145

Appellee-Respondent,

Robb, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-JP-1527 | July 22, 2020 Page 1 of 34
 Case Summary and Issue
[1] Since a paternity decree issued in 2012, Tara Seitz (“Mother”) and Christopher

Rhodaback (“Father”) have shared joint legal custody of their son, C.A.S.R.

(“Child”) with Mother having primary physical custody of Child and Father

exercising parenting time. In 2017, Father filed a motion to modify primary

physical custody and the trial court granted the motion. Mother appeals and

raises one issue for our review, namely whether the trial court’s order

modifying primary physical custody to Father was clearly erroneous.

Concluding it was not, we affirm.

Facts and Procedural History
[2] Mother and Father are the biological parents of Child, born January 31, 2012.1

The parties had been in a relationship for some time but broke up several weeks

before Child was born. Mother also has three other biological children, one

teenage daughter she shares with her ex-spouse, Kurt, and two other adult

children. Mother and Kurt share physical custody of their daughter and

exercise equal parenting time.

[3] Since 2011, Mother has been employed as a team leader with the American

Red Cross supervising blood drives, which requires some travel within a two-

1
Child had a twin brother, Z.E.R., who died in his sleep approximately five and a half months after birth
while in Father’s care.

Court of Appeals of Indiana | Memorandum Decision 19A-JP-1527 | July 22, 2020 Page 2 of 34
 hour radius of Evansville. Mother works approximately forty hours each week

working shifts ranging from 5:00 a.m. to 9:30 p.m. depending on the location of

the blood drive. Mother receives her schedule approximately two weeks in

advance. Father works at a bank forty hours each week from 8:30 a.m. to 4:00-

5:00 p.m. and works the occasional Saturday from 8:00 or 9:00 a.m. to noon.

[4] On June 4, 2012, Mother filed a petition to establish paternity. The trial court

subsequently issued an order establishing paternity and awarding joint legal

custody with Mother having primary physical custody of Child. Since July

2012, Mother has resided with Nancy, her mother and Child’s maternal

grandmother (“Maternal Grandmother”). In April 2013, Father married his

wife, Amanda, Child’s stepmother (“Stepmother”).

[5] In 2013, the parties entered into an agreed entry regarding child support and

other matters, which was approved by the trial court. In their March 12, 2013

Agreed Entry, the parties agreed to continued joint legal custody with Mother

having primary physical custody and Father having parenting time each

Monday and Wednesday evening from 5:30-7:30 p.m. and every other weekend

from 5:30 p.m. on Friday to 8:00 a.m. on Monday. They agreed that “any

evening or weekend Mother is unable to care for [C]hild, Father shall have [the]

right of first refusal to parenting time” with Child. Appellant’s Appendix,

Volume 2 at 48. In addition, the parties agreed to change Child’s legal name

from C.A.R. to C.A.S.R. See id. at 47. From October 2013 to April 2015,

Father and Stepmother lived in Michigan before moving back to Indiana.

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[6] On July 15, 2015, the trial court approved another agreed entry pursuant to

which the parties agreed to reduce Father’s child support payments, and agreed

that when Child enters preschool, they would share any costs equally. With

respect to Father’s parenting time, they agreed it would be at a minimum every

other Friday from 5:00 p.m. through Monday at 8:00 a.m., as well as every

Monday and Wednesday from 5:30-8:30 p.m. See id. at 51-52.

[7] In January 2016, Mother was arrested for domestic battery against Father in the

presence of Child. See Exhibits, Volume I at 229; see also Appellant’s App., Vol.

2 at 73. As a result, a no contact order was issued requiring Father and

Maternal Grandmother to communicate regarding Child. Sometime in 2017,

Maternal Grandmother began primarily caring for Child while Mother worked.

Because the parties were unable to agree on a preschool for Child to attend, he

was not enrolled in any preschool. In July 2017, Mother enrolled Child in

Kindergarten at Hebron Elementary School without first consulting Father.

[8] On August 24, 2017, Father filed his Petition to Modify Custody alleging a

material change in circumstances had occurred since the last custody order –

the July 2015 Agreed Entry. Specifically, Father alleged, in part:

2. Child is being raised in a maternal grandparent headed
family, which is causing developmental, behavioral and
emotional problems for the parties’ Child.

3. Child has not participated in early childhood education to
be prepared for Kindergar[t]en.

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 4. Mother . . . has unreasonably delayed Kindergar[t]en
enrollment.

5. . . . Father should have primary physical and legal custody
of the Child.

Appellant’s App., Vol. 2 at 54. Father also filed a verified petition for the

appointment of a guardian ad litem (“GAL”). On January 23, the trial court

appointed Amy Brandsasse as GAL to represent Child’s interests.

[9] Throughout Child’s Kindergarten year (2017-2018 school year), Child had

behavioral issues in the classroom. These issues were communicated through

Child’s agenda book that was sent home with Child and required a daily

signature by a parent or guardian. Based on behavior, students could earn a

daily “Hawk stamp” in their agenda book, which represents “a school wide

procedure . . . [of] positive reinforcement instead of . . . negative

consequences.” Transcript of Evidence, Volume II at 85-86. With respect to

the “HAWKS” acronym, “H is honesty, A accountability, W work hard, K

show kindness, and S self control.” Id. at 85. Typically, Mother or Maternal

Grandmother signed the agenda book; Father never saw the book. Kelsey

Krohn, Child’s Kindergarten teacher, reported that Child frequently squeezed

his genitals during class, was aggressive with other students, and often

untruthful with her. In response to Child’s behavior of holding his private

parts, Mother met with Ms. Krohn and the Assistant Principal in April 2018.

Father was not notified of the meeting. At some point during the year, there

was an incident in which another student bit Child. At home, Child was also

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 untruthful with his parents and, while at his Father’s house, he began sleeping

in his Father’s bed and Stepmother would sleep in another room.

[10] On June 7, 2018, Father filed an Information for Contempt alleging he was

entitled to extended summer parenting time but Mother had failed to comply

with the extended summer parenting time provision contained in the Indiana

Parenting Time Guidelines. See Appellant’s App., Vol. 2 at 66-67. The trial

court held a hearing on June 27 to address summer parenting time. Following

the hearing, the trial court ordered that Father have extended summer parenting

time and that:

Mother shall not have the Maternal Grandmother provide care,
beyond the work day period, for [C]hild, if Mother is unable [to]
care for [C]hild. Mother shall immediately notify the Father and
offer him the opportunity for additional parenting time. Mother
shall timely provide her work schedules, so the Father can make
timely elections.

***

Mother shall transport [C]hild at the start of her parenting time
and the Father shall transport [C]hild at the end of the Mother’s
parenting time. The parent responsible to arrange transportation
may not utilize a third party for transportation.

Appendix of Appellee, Volume 2 at 2-3. The trial court deferred the contempt

issue until a later scheduled hearing.

[11] The GAL filed her first report on July 23, 2018, which summarized her

observations and concerns based on documentation and interviews with Child,
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 Mother, Father, Maternal Grandmother, Stepmother, and Ms. Krohn.

Ultimately, the GAL opined that a significant change in circumstances had

occurred in that “the evidence shows [Mother] has interfered with the

parent/child relationship between [Child] and [Father] by allowing [Maternal

Grandmother] to be a primary caregiver for [Child], not communicating about

[Child]’s educational needs, medical needs, dental needs, and lacking in overall

co-parenting.” Appellant’s App., Vol. 2 at 87. Therefore, she recommended

that physical custody be changed to Father before the 2018-2019 school year,

that Child stay in his current school district, and that Mother have parenting

time according to the Guidelines with extra parenting time to be offered when

Father is not available to care for Child for more than two hours. The GAL

identified several problems that Child should immediately begin counseling to

address, including learning and demonstrating (1) the identities and roles of his

immediate and extended family; (2) appropriate boundaries with his body and

others’ bodies; (3) truthful behaviors; (4) coping skills regarding his twin brother

who passed away, domestic violence between his parents, and the transition

from one parent to the other; and (5) sleeping in his own bed. See id. at 88.

[12] Following a July 31 hearing during which Ms. Krohn testified about the agenda

book, the GAL obtained additional documentation, including Child’s

Kindergarten agenda book, text messages between Mother and Ms. Krohn

regarding Child’s behavioral issues, and a binder of text messages between

Mother and Father submitted to refute statements Father made to the GAL that

were included in her previous report. After reviewing the additional

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 information, the GAL filed an updated report on September 7, 2018, solidifying

her previous recommendation and recommending that Child be seen at

Midwest Behavioral Health for counseling within ten days. See App. of

Appellee, Vol. 2 at 10.

[13] Mother disagreed that Child needed counseling and had Child evaluated by

Laura Ellsworth, a licensed counselor, to refute the GAL’s recommendation.

In September 2018, Mother attended an intake appointment with Ellsworth and

Child later met with Ellsworth for two one-hour sessions. Following the

sessions, Ellsworth completed a written mental health assessment and

recommended the following:

[C]hild would not be harmed by engaging in counseling with a
trained and experienced certified play therapist to assist [C]hild
with issues which may not have been addressed by this
evaluation, or in the event [C]hild displays future issues (grief,
anxiety, boundaries). It is suggested the therapist have a clinical
understanding of custody and high conflict co-parenting in order
to avoid being put in the middle of the parent issues. It [is] also
recommended the parents not be allowed to use [C]hild’s
counseling for future litigation.

Exhibits, Vol. III at 179.

[14] At a March 26, 2019 hearing, Mother still had not yet submitted the paperwork

to change Child’s legal name (pursuant to the March 12, 2013 Agreed Entry)

and the trial court ordered that she do so within five business days. On the

same day, Mother testified that she accepted a new full-time job working

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 Monday through Friday from 8:00 a.m. to 5:00 p.m. and one Saturday per

month.

[15] Following the presentation of evidence over the course of nine-days,2 the trial

court issued an order awarding joint legal custody to the parties, primary

physical custody to Father, and additional parenting time for Mother. The trial

court made findings, which will be detailed below, and concluded that the

“evidence before the Court, which supports the Court’s findings demonstrate a

substantial change in circumstances so substantial and continuing as to make

the terms of the current child custody order unreasonable such that

modification of the child custody order is appropriate.” Appealed Order at 15.

As such, the trial court ordered that Father be the primary physical custodian of

Child, the parties continue to have joint legal custody of Child, and “in the best

interest of the [C]hild[,] Mother have parenting time beyond the minimum

provided for under the parenting time guidelines.” Id. Mother now appeals.

Discussion and Decision
I. Standard of Review
[16] On appellate review of judgments with findings of fact and conclusions of law,

we “shall not set aside the findings or judgment unless clearly erroneous, and

2
The trial court held hearings on June 27, July 31, September 17, October 12 and 16, 2018, and February 22
and 25, and March 11 and 26, 2019.

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 due regard shall be given to the opportunity of the trial court to judge the

credibility of the witnesses.” Ind. Trial Rule 52(A)). When a party has

requested special findings of fact and conclusions thereon pursuant to Indiana

Trial Rule 52(A),3 we may affirm the judgment on any legal theory supported

by the findings. Werner v. Werner, 946 N.E.2d 1233, 1244 (Ind. Ct. App. 2011),

trans. denied.

[17] When reviewing such findings, we apply a two-tiered standard of review.

Tompa v. Tompa, 867 N.E.2d 158, 163 (Ind. Ct. App. 2007). We first determine

whether the evidence supports the findings and then whether the findings

support the judgment. Id. We will set aside the trial court’s findings and

conclusions only if clearly erroneous. Id. “Findings are clearly erroneous only

when the record contains no facts to support them either directly or by

inference.” Yanoff v. Muncy, 688 N.E.2d 1259, 1262 (Ind. 1997). A judgment is

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

Id.

[18] We do not reweigh the evidence or assess the credibility of the witnesses. D.C.

v. J.A.C., 977 N.E.2d 951, 954 (Ind. 2012). Instead, we view the evidence most

favorably to the judgment. Id. “In conjunction with the Trial Rule 52

standard, there is a longstanding policy that appellate courts should defer to the

3
On July 31, 2018, Mother requested specific findings. See Appellant’s App., Vol. 2 at 92.

Court of Appeals of Indiana | Memorandum Decision 19A-JP-1527 | July 22, 2020 Page 10 of 34
 determination of trial courts in family law matters.” D.G. v. S.G., 82 N.E.3d

342, 348 (Ind. Ct. App. 2017), trans. denied. Our supreme court has stated:

Appellate deference to the determinations of our trial court
judges, especially in domestic relations matters, is warranted
because of their unique, direct interactions with the parties face-
to-face, often over an extended period of time. Thus enabled to
assess credibility and character through both factual testimony
and intuitive discernment, our trial judges are in a superior
position to ascertain information and apply common sense,
particularly in the determination of the best interests of the
involved children.

Best v. Best, 941 N.E.2d 499, 502 (Ind. 2011).

II. Modification of Custody
[19] Modification of custody is a determination that rests in the sound discretion of

the trial court. In re Marriage of Sutton, 16 N.E.3d 481, 484 (Ind. Ct. App. 2014).

Accordingly, we review the trial court’s decision to modify custody for an abuse

of this discretion, affording wide latitude and deference to the trial court.

Collyear-Bell v. Bell, 105 N.E.3d 176, 183 (Ind. Ct. App. 2018). An abuse of

discretion occurs when a decision is clearly against the logic and effect of the

evidence before the court. Russell v. Russell, 682 N.E.2d 513, 515 (Ind. 1997).

A. Findings of Fact
[20] First, Mother argues that twenty-two of the trial court’s sixty-seven findings are

clearly erroneous. Mother challenges findings 8, 18, 22-23, 27, 31, 33, 37-39,

41, 43-47, 49-51, 62, 64, and 67:

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 8. Father filed his Information for Contempt on June 7, 2018,
regarding the Mother’s failure to abide by the extended summer
parenting time provisions of the Indiana Parenting Time
Guidelines (“IPTG”).

***

Significant Events Regarding Resolution of Pending Issues

***

18. The [GAL] testified that the Mother was uncooperative in
scheduling her preliminary meeting with the [GAL]. The [GAL]
testified that the Mother cancelled her first appointment with her
and that the Mother only contacted the [GAL] after being
ordered to do so. Conversely, the [GAL] testified that the Father
was responsive to the [GAL] in scheduling his appointment,
attending the appointment and signing and returning the proper
paperwork.

Schooling

***

22. Ms. Krohn . . . testified that the . . . failure to enroll
[Child] in preschool affected his socialization and behavior
during Kindergarten.

23. The [GAL] testified that the Mother failed to
communicate information relayed by [Child]’s school to home
through the Agenda book to the Father.

Custody and Parenting Time

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 ***

27. [Child] attended Kindergarten at Hebron Elementary for
the 2017-2018 academic year. The Mother waited until
approximately one (1) week prior to school commencing to
enroll [Child].

***

31. [Child]’s pediatrician, Dr. Selby, testified that [Child]
exhibited “abnormal” behavior or a “tick” in excessively
touching his genitals[.] The Mother failed to communicate this
information to the Father.

***

33. Despite the [order] as to [Child]’s legal name, the Mother
has contributed to [Child]’s identity issues by hyphenating
[Child]’s last name on multiple occasions, which is not his legal
name.

***

37. The Mother allows [Maternal Grandmother] . . . to co-
parent [Child]. The Updated [GAL] Report September 7, 2018
showed that [Child] spent twenty-five (25) days in the care of
[Maternal Grandmother] between January 8, 2018 and June 15,
2018, when [Child] could have been with his Father.

38. The Mother allowed [Maternal Grandmother] . . . to sign
[Child] up for extracurricular activities in 2018, such a Hebron
basketball, YMCA soccer, and drum lessons, without the
Father’s knowledge.

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 39. The Mother does not communicate or co-parent with the
Father as evidenced by the following:

• failure to enroll [Child] in preschool;

• failure to inform the Father of the biting incident at
[Child]’s school;

• failure to inform the Father of a school conference
regarding [Child]’s behavior [of] touching himself in
class;

• failure to inform the Father of extracurricular activities;

• failure to notify the Father of [Child]’s doctor’s
appointments;

• failure to notify the Father of regular and ongoing
behavior problems at school [Child]’s entire
kindergarten year;

• failure to notify the Father of opportunities for
additional parenting time when the Mother worked late
and instead allowing [Child] to be care for by his
[M]aternal [G]randmother; and

• failure to inform the Father of the meeting between the
Mother, Ms. Krohn and the Assistant Principal in April
2018.

***

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 41. The Mother testified that she does not think [Child] needs
to be in counseling. The Mother refused to enroll [Child] in
counseling despite the [GAL]’s recommendation.

***

43. Rather than choose a therapist to meet the needs of
[Child], which were identified in the [GAL’s] Report July 23,
2018, the Mother retained Ms. Ellsworth for a mental health
assessment[.]

44. The Mother’s expert witness, Laura Ellsworth, MA,
rendered a report based upon her mental health assessment of
[Child]. It was Ms. Ellsworth’s clinical opinion that “[Child]
would not be harmed by engaging in counseling with a trained and
experienced certified play therapist to assist [Child] with issues which
may not have been addressed by this evaluation, or in the event [Child]
displays future issues (grief, anxiety, boundaries).” Ms. Ellsworth’s
clinical opinion was not inconsistent with the [GAL’s] Report of
July 23, 2018.

45. The Father scheduled [Child] for an appointment with
Midwest Behavioral Health (hereinafter, “MBH”). Mother was
notified of the appointment. The Mother did not appear for the
appointment. Mother did not complete necessary paperwork
requested by MBH after notice by the Father that the paperwork
needed to be completed.

46. The next scheduled [counseling] appointment in January
2019 was rescheduled to February 26, 2019 due [to Child’s]
illness.

47. On February 25, 2019, the Mother participated for the first
time, in [Child]’s counseling.

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 ***

49. The Report of July 23, 2018 states that the Mother was not
in a domestic relationship based upon GAL’s interview of
Mother. Mother, however, testified that she has been in a
domestic relationship since September 2018 with “Eddie” [who]
lives in Oakland City, Indiana. “Eddie” has been with [Child]
on two (2) occasions. The Mother failed to report this
relationship to the [GAL].

50. Mother’s ex-spouse . . . testified that he and the Mother
share “equal time” with their biological daughter. However, [he]
posted on Facebook that he has had “personal challenges in
having to raise [his] daughter alone.”

51. The Mother denied ever being arrested. However, the
Mother was arrested on January 7, 2016, for domestic battery
against the Father in the presence of [Child], a minor less than
sixteen (16) years old.

***

62. From the end of summer 2018 to February 25, 2019, the
Mother did not provide the Father with her work schedule as
ordered by this court . . . effectively denying the Father
opportunities to enjoy additional parenting time with [Child].

***

64. The Mother testified that she knowingly and willfully
violated the Order June 27, 2018 that she not utilize a third party
to provide transportation for [Child]. The Mother allowed
[Maternal Grandmother] to regularly provide transportation for
[Child] in direct violation of the Court’s Order June 27, 2018.

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 ***

67. [Child] had regular and ongoing behavioral problems at
school his entire Kindergarten academic year. The Mother failed
to notify the Father of these problems.

Appealed Order at 2, 4-10, 12-13.

[21] A finding of fact is clearly erroneous only when there is no evidence in the

record to support it directly or by inference. Yanoff, 688 N.E.2d at 1262. Based

on careful review of the record, we conclude there is evidence in the record to

support all but one of the challenged findings.4

B. Challenged Findings
[22] We begin our analysis with the only clearly erroneous finding. In finding 45,

the trial court found that Father scheduled an appointment for Child at MBH,

Mother was notified but did not attend, and Mother did not complete the

necessary paperwork. Appealed Order at 9. In the GAL’s updated report, she

recommended that Child have a counseling appointment scheduled at MBH

within ten days. See App. of Appellee, Vol. 2 at 10. Father initially contacted

MBH to make the appointment; however, he was unable to schedule an

appointment because Mother was the custodial parent and insurance carrier.

See Tr., Vol. III at 20-21. Father relayed this information to Mother and she

4
Mother claims many of the trial court’s other findings are “mere surplusage[.]” Appellant’s Brief at 15.

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 eventually scheduled an appointment for September 26, 2018. Id. at 21.

Mother was unable to attend, so Father took Child to the appointment where

he completed the necessary paperwork. Id. Although Father initially reached

out to MBH to make the appointment, Mother scheduled the appointment

because she was the custodial parent and insurance carrier. Therefore, only this

portion of the trial court’s finding is erroneous. Nonetheless, as discussed

below, we conclude that despite this erroneous statement in finding 45, the

remaining challenged and unchallenged findings are sufficient to support the

trial court’s modification order. See In re A.S., 17 N.E.3d 994, 1003-06 (Ind. Ct.

App. 2014) (holding that, in the context of a termination of parental rights

proceeding, despite several clearly erroneous findings of fact, there was

sufficient evidence to support the juvenile court’s order terminating parental

rights even absent the erroneous findings), trans. denied.

[23] Mother argues finding 8 is clearly erroneous because the parties never agreed to

follow the Indiana Parenting Time Guidelines. However, the record reveals

and finding 8 recites that Father did file an Information for Contempt in June

2018 alleging that he was entitled to extended summer parenting time and

Mother failed to comply with the extended parenting time provision contained

in the IPTG. See Appellant’s App., Vol. 2 at 66-67. Here, the trial court is

simply setting forth the pertinent procedural history of the case – not making

any finding as to whether or not the parties agreed to follow the IPTG.

[24] The GAL’s testimony supports finding 18 that Mother was uncooperative. At

the September 17, 2018 hearing, the GAL testified, “Whenever I reached out to

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 [Mother] in the beginning to schedule the intake appointment, just to get the

case started, she did not cooperate. . . . Meaning she didn’t call me. She

scheduled an appointment, canceled the appointment. Just didn’t cooperate.”

Tr., Vol. II at 121. Although Mother may disagree with the finding and points

to other evidence in the record to refute its accuracy, we cannot conclude there

is no evidence in the record to support this finding.

[25] Mother contends finding 22 is “frankly shocking” because there is no evidence

in the record to support a finding that Ms. Krohn believed Child suffered as a

result of not attending preschool. Appellant’s Brief at 15. On cross

examination, Ms. Krohn agreed she reported to the GAL that “sometimes

[Child] did not know how to act.” Tr., Vol. II at 93. She testified that Child

would display aggression with the other students. For example, “[m]aybe they

didn’t wanna play and [Child] did and he didn’t know . . . how to respond to

that.” Id. Ms. Krohn also acknowledged she reported to the GAL that Child’s

behavior was not uncommon given that Child had never been in a formal

school setting, such as preschool, before attending Kindergarten. Id. at 93-94.

We conclude that the trial court’s finding that the failure to attend preschool

affected (not suffered, as Mother characterizes it) Child’s behavior and

socialization during Kindergarten is a reasonable interpretation of this

testimony and not clearly erroneous.

[26] With respect to finding 23, Ms. Krohn testified that the agenda book required a

daily signature and either Mother or Maternal Grandmother initialed or signed

Child’s agenda book. See id. at 83. For the GAL’s updated report, she

Court of Appeals of Indiana | Memorandum Decision 19A-JP-1527 | July 22, 2020 Page 19 of 34
 reviewed Child’s agenda book and noted there were sixty-six entries throughout

the school year which reported Child had behavioral problems. See App. of

Appellee at 5-6. Father testified he was not provided with the agenda book as it

was never sent home with Child on the weekend. See Tr., Vol. III at 19. The

GAL testified that Ms. Krohn had reported Child “was a bully” and noted that

Father had believed Child was being bullied “because there [was] not the

information being passed along from [Mother] through the agenda book, and

gave a completely different view of what was happening in the classroom.” Id.,

Vol. II at 141. This evidence supports the trial court’s finding.5

[27] Finding 27 concerns Child’s last-minute Kindergarten enrollment. Mother

argues this finding is clearly erroneous because it has “no bearing on whether

there has been a substantial change in circumstances to justify a modification of

custody” and she enrolled Child in Kindergarten within the enrollment period.

Appellant’s Br. at 18. However, this finding is supported by Father’s testimony

that he and Mother discussed enrolling Child in Castle Elementary school but

5
Mother uses finding 23 to illustrate what she characterizes as “a significant issue in this case, that being the
GAL’s overall failure to stay as a neutral in the case and make recommendations in the best interests of
[Child]. The GAL routinely sided with Father, which resulted in a biased or inaccurate report being
submitted to the Court.” Appellant’s Br. at 17. At the September 17, 2018 hearing, with respect to a portion
of the GAL’s report and Child’s pediatrician’s testimony, Mother’s attorney stated, “My hope is an unbiased
individual that has had contact with [Child] could identify what type of – should [Mother] have been telling
me that . . . he received a note in his agenda book . . . .” Tr., Vol. II at 184. Father objected to the GAL
being characterized as biased. Id. Later, Mother’s attorney conceded she “inadvertently implied” the GAL
was biased or unbiased in the case, and the GAL confirmed she did not have any knowledge of either party,
their significant others, family members, or anything else that would lead to bias. See id. at 222. Although
Mother may have hinted that she believed the GAL was biased, she did not properly raise the issue before the
trial court. Mother’s failure to object to the GAL’s report or raise this issue to the trial court results in waiver
on appeal and as such, we decline to address it. Thalheimer v. Halum, 973 N.E.2d 1145, 1150 (Ind. Ct. App.
2012).

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 Mother “flat out told [him] no [because s]he didn’t want to.” Tr., Vol. III at 11.

Instead, Mother enrolled Child in Hebron Elementary school at the end of July

– several days before school began – without first communicating with Father.

Father testified that a few days before school, “She just told me ‘He’s been

enrolled’” and told Father what school supplies Child needed. Id. at 12. We

find no error because the finding clearly relates to communication between the

parties, a factor to be considered in modifying custody.

[28] With respect to finding 31, Mother takes issue with the trial court’s

characterization of Dr. William Selby’s, Child’s pediatrician, testimony

regarding Child’s excessive touching of his private area in the classroom. Dr.

Selby testified, “I would consider it to be abnormal but not alarming in any way,

as ticks or behaviors like this are presented quite frequently in this age range

and often are of no consequence.” Tr., Vol. II at 178 (emphasis added). As

such, the trial court’s finding that Dr. Selby testified that Child “exhibited

‘abnormal’ behavior or a ‘tick’ in excessively touching his genitals” is not

clearly erroneous. Appealed Order at 6.

[29] Findings 33, 37 and 636 are supported by the GAL’s July report, in which she

stated: Child “potentially has identity issues as a result of having his twin pass

away. This is further complicated by [Mother] clearly hyphenating [Child]’s

last name on multiple occasions, which is not his legal name[;]” and Mother

6
Mother contends this finding is “merely a rewording” of finding 37 and the same analysis applies.
Appellant’s Br. at 40.

Court of Appeals of Indiana | Memorandum Decision 19A-JP-1527 | July 22, 2020 Page 21 of 34
 worked past 6:00 p.m. on forty-two days, twenty-five of which were days where

Child could have spent extra parenting time with Father instead of Maternal

Grandmother, which the GAL believed was “very telling of [Mother]

promoting [Maternal Grandmother]’s relationship with [Child] over [Father]’s,

regardless of whether or not there was a court order.” Appellant’s App., Vol. 2

at 84, 86.

[30] In findings 38, 41, 43, 46-47, 49, the trial court found that Maternal

Grandmother signed Child up for extracurricular activities; Mother does not

believe Child needs counseling; Mother attended Child’s second counseling

session for the first time in February 2019; and Mother failed to inform the

GAL she was in a relationship. These findings are supported by the following

evidence in the record:

• In her July report, the GAL stated that Maternal Grandmother reported

she signed Child up for various extracurricular activities. Id. at 80.

• The GAL’s July report recommended that Child be enrolled in therapy.

Mother testified she does not believe Child needs counseling and instead,

sought a clinical assessment for Child with Ellsworth. See Tr., Vol. IV at

96-97, 99. The GAL testified that Mother “did it to refute what my

recommendations were, not to promote [Child]’s best interest.” Tr., Vol.

II at 140; see also App. of Appellee, Vol. 2 at 137 (Mother’s text message

to Father stating Ellsworth is “seeing [Child] as a rebuttal to your

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 claims”). Therefore, the trial court’s interpretation that Mother “refused

to enroll” Child in counseling is reasonable. Appealed Order at 9, ¶ 41.

• Child had a second appointment at MBH scheduled for January 2019;

however, Child was ill with the flu and the appointment was rescheduled

for February 25. See Tr., Vol. III at 169. Mother was unable to attend

the first appointment on September 26, 2018 because she had to work,

and she participated in counseling for the first time at Child’s second

appointment on February 25. See Appellant’s Br. at 36-37 (Mother does

not challenge the accuracy of the finding 47 but rather how the finding

allegedly “paint[s her] as an uninvolved parent”).

• The GAL’s July report indicated Mother was not in a relationship, which

was true at the time. At the March 26, 2019 hearing, Mother testified

that she had been in a relationship since September 2018 but never

reported the relationship to the GAL. Tr., Vol. IV at 103-04.

Because there is evidence in the record to support each of these findings, we

cannot conclude they are clearly erroneous. We find no error.

[31] Mother contends finding 44 is clearly erroneous because Ellsworth’s clinical

opinion that Child would not be harmed by counseling with a certified licensed

counselor that understood custody/high conflict co-parenting issues differed

from the GAL’s general recommendation that Child begin counseling. See Tr.,

Vol. III at 113-14. The fact that Ellsworth may have been more specific and

tailored her recommendation to the high conflict situation does not render the

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 trial court’s finding that the two recommendations were not inconsistent clearly

erroneous.

[32] With respect to finding 50, Mother claims the finding “mischaracterizes what

[her ex-spouse’s Facebook] post was truly about.” Appellant’s Br. at 38. Here,

once again, Mother does not challenge the accuracy of her ex-spouse’s

testimony or the content of his Facebook post. Instead, she disapproves of the

trial court’s interpretation of the evidence and asks us to reweigh the evidence,

which we cannot do. D.C., 977 N.E.2d at 954.

[33] In finding 51, the trial court found Mother denied ever being arrested. Mother

argues she was confused by the line of questioning – causing her to answer

incorrectly. At the March 26 hearing, when asked, “Have you ever been

arrested[?]” Mother responded “No.” Tr., Vol. IV at 74. Later, when presented

with her arrest record, Mother admitted she had been arrested and explained

she turned herself in. Id. at 91. Given this evidence, we find no error.

[34] Mother contends finding 62 is clearly erroneous because she was unaware that

she was required to provide Father with her work schedule beyond the summer

as the June 27, 2018 order only addressed summer parenting time. See

Appellant’s Br. at 39. Mother concedes she did not provide Father with her

work schedule from the end of summer until February 2019 and we conclude

the trial court’s interpretation of its own order is sufficient to support this

finding.

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[35] Finding 64 concerns Mother’s violation of the June 27 order prohibiting her

from utilizing a third party to transport Child. Mother concedes that she

allowed Maternal Grandmother to transport Child and at trial, Mother also

conceded that she understood the order but agreed that she violated it anyway.

Tr., Vol. IV at 96. As such, this finding is not clearly erroneous.

[36] Findings 39 and 67 concern Mother’s failure to enroll Child in preschool and

inform or notify Father of Child’s behavioral issues at school, medical

appointments, extracurricular activities, and opportunities for additional

parenting time. See Appealed Order at 7-8, 13. Mother argues the “only

evidence to support [these findings] is Father’s self-serving testimony, and a

biased or inaccurate GAL report based only on Father’s statements.”

Appellant’s Br. at 25 (internal quotation omitted). Here, Mother acknowledges

there is evidence to support these findings – she just disagrees with the weight

the trial court assigned to Father’s testimony and the GAL’s reports. Mother’s

argument is simply a request for this court to reweigh the evidence and assess

witness credibility in her favor, which we cannot do. D.C., 977 N.E.2d at 954.

Nonetheless, we conclude there is ample evidence in the record to support the

trial court’s findings:

• Father testified that he obtained information about several preschools,

visited them, and provided this information to Mother; however, he

“pretty much got a no [from Mother]. . . . I would give her information. .

. . She said no.” Tr., Vol. III at 10-11. Mother also testified that she and

Father discussed preschool but “just couldn’t agree on where[,]” so Child

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 was never enrolled. Tr., Vol. IV at 53. Further, the GAL wrote in her

report that Child “did not go to preschool due to a lack of co-parenting.”

App. of Appellee, Vol. 2 at 9.

• The GAL testified that Father observed a bite mark on Child’s arm

during parenting time and contacted the school directly to find out what

happened. Tr., Vol. II at 217. Ms. Krohn also testified that Father

reached out to her via email asking whether Child was being bullied –

referring to the biting incident. See id. at 90; see also Id., Vol. IV at 40

(Mother’s testimony indicating she was aware of the biting incident).

• Ms. Krohn testified that on April 17, 2018, she, Mother, and the

Assistant Principal met to discuss Child’s behavior of holding his private

parts. See Tr., Vol. II at 91. The GAL reported that Mother failed to

inform Father of the biting incident, the school conference regarding

Child holding his private parts during class, and extracurricular

activities.7 Appellant’s App., Vol. II at 86.

• Father testified that he was not aware of most of Child’s medical

appointments until after they were over. See Tr., Vol. III at 50-51. In

addition, the GAL’s September report found that Mother “only informed

[Father] of two (2) doctor’s appointments out of ten (10) as documented

7
Although Mother points to several examples in which she provided information on extracurricular activities
via text message to Father, the GAL reported that Mother failed to inform Father of these activities and we
must view the evidence most favorably to the trial court’s judgment. D.C., 977 N.E.2d at 954.

Court of Appeals of Indiana | Memorandum Decision 19A-JP-1527 | July 22, 2020 Page 26 of 34
 by Dr. Selby’s medical records. On September 7, 2017, [Mother]

informed [Father] after she was already on her way to the appointment

[and then] after an appointment on December 26, 2017.” App. of

Appellee, Vol. 2 at 7.

• The GAL indicated in her September report that Father was not notified

that Child had regular and ongoing behavioral issues at school

throughout the year. Id. at 9. Throughout Child’s Kindergarten year,

there were sixty-six entries in his agenda book where Child was cited for

lack of self-control in the classroom, id. at 5-6, but Father testified he

never saw the agenda book, tr., vol. III at 19.

• In the GAL’s July report, she reviewed Mother’s work schedule from

January 8 through June 15, 2018 and found forty-two days on which

Mother worked past 6:00 p.m. and twenty-five of those days were days

when Child could have had extra parenting time with Father instead of

being with Maternal Grandmother. Appellant’s App., Vol. II at 84-86.

[37] In addition to her challenges to specific findings, Mother argues that the trial

court’s findings are inadequate because “the vast majority of [them] merely

recite witness testimony or procedural history[.]” Appellant’s Br. at 11.

Indeed, “[a] finding of fact must indicate, not what someone said is true, but

what is determined to be true, for that is the trier of fact’s duty.” Moore v. Ind.

Family & Soc. Servs. Admin., 682 N.E.2d 545, 547 (Ind. Ct. App. 1997).

However, we disagree with Mother.

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[38] Based on how the trial court articulated its findings, we conclude that its

findings are not merely a litany of each witnesses’ testimony. Rather, the trial

court, as trier of fact, picked out aspects of testimony it determined to be

credible and established those as facts. This is not a “he said/she said”

situation, in which the trial court simply provides a recitation of each witnesses’

testimony. Cf. Hazelett v. Hazelett, 119 N.E.3d 153, 159-60 (Ind. Ct. App. 2019)

(remanding custody order after holding that the trial court’s findings of fact

were “merely a recitation of each party’s contentions, arguments, proposed

findings, and portions of relevant statutory provisions” and therefore, were an

inadequate basis for the appellate court to determine whether the trial court

made a proper custody determination) (emphasis added). Viewing the trial

court’s findings as a whole, it is clear that the trial court, through these findings,

made credibility determinations. It is the trial court that listened to the

testimony over the course of nine days, directly interacted with the parties, and

assessed the witnesses’ “credibility and character through both factual

testimony and intuitive discernment[,]” tasks solely entrusted to the trial court.

Best, 941 N.E.2d at 502. The fact that the modification hearing took place over

nine days only supports our conclusion that the trial court carefully selected the

portions of testimony it found as fact. And we will not second guess the trial

court in this regard.

[39] In sum, despite one erroneous provision contained in finding 45 (that Father

made the September counseling appointment at MBH for Child when Mother

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 actually made the appointment), we conclude the evidence in the record

supports the challenged findings and therefore, they are not clearly erroneous.

B. Conclusions of Law
[40] Next, Mother challenges the trial court’s modification of physical custody in

favor of Father. Specifically, she contends that the trial court’s findings are

insufficient to support such modification because they “are completely devoid

of any mention of the Best Interests Factors [and] fail[] to make one (1)

finding[] as to how, or why a custody modification would be in the best

interest” of Child. Appellant’s Br. at 42-43. She contends that the trial court

“simply makes a generalized statement that ‘a substantial change has occurred’

yet failed to say what substantial change occurred. Clearly, no substantial

change occurred based on the trial court’s [f]indings. More importantly, the

trial court failed to find that modification would be in the best interests” of

Child. Id. at 43. We disagree.

[41] A modification of custody in the paternity context is governed by Indiana Code

section 31-14-13-6, which allows a trial court to modify a child custody order

only if modification is in the child’s best interests and a substantial change in

one or more of the designated statutory factors has occurred. The trial court

must consider all relevant factors, including:

(1) The age and sex of the child.

(2) The wishes of the child’s parents.

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 (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 parents;

(B) the child’s siblings; and

(C) any other person who may significantly affect the
child’s best interest.

(5) The child’s adjustment to 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.

(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) [de facto
custodian factors] of this chapter.

Ind. Code 31-14-13-2.

[42] A substantial change in any one of these factors is sufficient to support

modification of custody. K.I. ex rel. J.I. v. J.H., 903 N.E.2d 453, 460 (Ind. 2009).

The trial court must consider all relevant factors, but it is not required to make

specific findings on each factor unless requested to do so by the parties. H.H. v.

A.A., 3 N.E.3d 30, 36 (Ind. Ct. App. 2014). Here, Mother filed a request for
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 specific findings of fact. In making a determination regarding modification of

custody, the trial court may not hear evidence of things occurring before the last

custody proceeding unless it relates to a change in the factors relating to the

child’s best interests. Ind. Code § 31-14-13-9.

[43] Here, listed under “Significant Events Regarding Resolution of Pending Issues”

of the order, the trial court made extensive findings with respect to Child’s

schooling, custody, and parenting time. Appealed Order at 4. Taking the trial

court’s order as a whole, it is apparent that it did consider the best interest

factors and then made extensive and specific findings on the applicable factors,

including Child’s age, his relationships and adjustment to both homes and

school, his documented behavioral and health issues, and domestic violence

between the parents:

• Child is seven years old and had a twin who passed away. Id., ¶¶ 16-17.

• Child was not enrolled in preschool, which “affected his socialization

and behavior during Kindergarten.” Id. at 5, ¶ 22.

• Child has exhibited various behavioral issues throughout his

Kindergarten school year. Id. at 6, 13, ¶¶ 31, 66-67. And Mother has

demonstrated a pattern of failing to communicate these issues to Father.

Id. at 5, 13, ¶¶ 23, 67.

• Child potentially has identity issues as a result of his twin passing away;

Mother has contributed to these issues by failing to change Child’s legal

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 name as the parties agreed, and Mother was ordered by the court to

submit the necessary paperwork on March 26, 2019. Id. at 6-7, ¶¶ 32-36.8

• Mother allows Maternal Grandmother to co-parent Child and sign Child

up for numerous extracurricular activities. Id. at 7, ¶¶ 37-38.

• Mother does not co-parent or communicate with Father as demonstrated

by her failure to enroll Child in preschool and failure to inform Father of

important decisions or issues in Child’s life, including medical

appointments, extracurricular activities, and behavioral issues. Id. at 7-8,

¶ 39.

• The GAL identified Child’s specific problems and recommended that

Child begin therapy to address these issues, such as appropriate

boundaries with his body, identity of family members, and coping skills.

Id. at 8-9, ¶¶ 40, 42.

• Mother disagreed that Child needed counseling and instead of getting

Child into counseling, Mother sought a mental health assessment for

Child to refute the GAL’s recommendation. Id. at 9, ¶¶ 41-44.

• In January 2016, Mother was arrested for domestic battery committed

against Father with Child present. Id. at 10, ¶ 51.

8
It appears the trial court inadvertently listed two separate findings as finding 35.

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 • Mother failed to provide her work schedule to Father from the end of

summer 2018 to February 25, 2019, in violation of the June 27 order. As

a result, Mother “effectively den[ied] the Father opportunities” for

additional parenting time. Id. at 12, ¶ 62. During this time, Mother

worked past 6:00 p.m. on forty-two days – twenty-five of which were

days where Child was with Maternal Grandmother, but Father could

have had extra parenting time. The GAL reported that Mother promotes

Child’s relationship with Maternal Grandmother over Father. Id. at 12, ¶

63.

• The GAL recommended that primary physical custody be changed to

Father. Id. at 6, ¶ 28.

[44] These findings address a substantial change in Child’s schooling, relationships,

behavior, and adjustment to both homes and school, as well as domestic

violence between the parents. Contrary to Mother’s argument, by going

through each of the applicable best interest factors, the trial court is finding that

modification is in the Child’s best interests. It is clear the trial court afforded

substantial weight to the GAL’s reports and testimony and Mother’s arguments

constitute an invitation for this court to reweigh the evidence and assess witness

credibility in her favor, which we cannot do. D.C., 977 N.E.2d at 954.

Nonetheless, we may affirm the trial court’s modification order on any legal

theory supported by the findings, Werner, 946 N.E.2d at 1244, and we conclude

the findings support the trial court’s order modifying physical custody.

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[45] Because the evidence in the record supports the trial court’s findings, which

support the modification order, we conclude the trial court’s judgment was not

clearly erroneous.9

Conclusion
[46] We conclude the evidence supports the findings and those findings support the

trial court’s modification order. As such, the trial court’s judgment was not

clearly erroneous. Accordingly, we affirm.

[47] Affirmed.

May, J., and Vaidik, J., concur.

9
One of the significant issues in this case was Mother’s unavailability to spend time with Child – leaving
Maternal Grandmother to essentially be Child’s primary custodian and thereby preventing any additional
parenting time for Father. Nonetheless, Mother asks this court to reverse the trial court’s order awarding
Father primary physical custody. Under the circumstances of this case, the trial court’s order awarding joint
legal custody and extra parenting time for Mother is extremely generous.

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