Opinion
24A-JC-237
10-17-2024
In the Matter of N.K., a Child in Need of Services; C.J. (Mother), Appellant-Respondent v. R.K. (Father), et. al., Appellees-Petitioners.
Attorney for Appellant Alexander N. Moseley Dixon & Moseley, P.C. Indianapolis, Indiana Attorney for Appellee, R.K. Michael C. Price Michael Price Law Office, P.C. Zionsville, Indiana Attorneys for Appellee, Indiana Department of Child Serices Theodore E. Rokita Attorney General of Indiana David E. Corey Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Madison Circuit Court The Honorable Stephen J. Koester, Judge Trial Court Cause No. 48C02-2204-JC-137
Attorney for Appellant Alexander N. Moseley Dixon & Moseley, P.C. Indianapolis, Indiana
Attorney for Appellee, R.K. Michael C. Price Michael Price Law Office, P.C. Zionsville, Indiana
Attorneys for Appellee, Indiana Department of Child Serices Theodore E. Rokita Attorney General of Indiana
David E. Corey Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
PYLE, JUDGE
Statement of the Case
[¶1] C.J. ("Mother") appeals the trial court's order that modified custody of her daughter, six-year-old N.K. ("N.K."), in favor of R.K. ("Father"). She argues that the trial court abused its discretion when it: (1) denied her motion to continue the custody modification hearing; and (2) modified custody of N.K. in favor of Father. Concluding that the trial court did not abuse its discretion, we affirm the trial court's judgment.
This custody action arose in a child in need of services ("CHINS") proceeding. See IND. CODE § 31-30-1-13.
[¶2] We affirm.
Issues
1. Whether the trial court abused its discretion when it denied Mother's motion to continue the custody modification hearing.
2. Whether the trial court abused its discretion when it modified custody of N.K. in favor of Father.
Fact
[¶3] Mother and Father are the parents (collectively, "Parents") of N.K., who was born in October 2017. Father was present at N.K.'s birth, and Parents and N.K. lived together for the first year of N.K.'s life. Parents then separated in 2018. At some point, Father filed a paternity action, and the trial court awarded Mother custody of N.K. and Father parenting time with N.K. In 2019, when N.K. turned two years old, the trial court's parenting time order authorized Father to have overnight visits with N.K. However, Mother refused to allow N.K. to spend the night at Father's home.
[¶4] Father filed "a contempt and also a [m]otion to file for custody" of N.K. (Tr. Vol. 3 at 13). Shortly thereafter, DCS began receiving reports that Father was sexually abusing N.K. Specifically, these allegations were reported to DCS in March 2019, December 2020, August 2021, October 2021, and January 2022. DCS investigated each of the allegations, and N.K. participated in several forensic interviews and sexual assault nurse examiner ("SANE") examinations. Following each investigation, DCS determined that the allegations were unsubstantiated.
In February 2020, DCS substantiated an allegation against Parents that N.K. had been sexually abused. N.K. was removed from both parents and placed in foster care while DCS investigated the allegations. However, DCS was unable to determine the perpetrator of the abuse and subsequently returned N.K. to Mother's care.
[¶5] On April 7, 2022, DCS received another report that Father had sexually abused four-year-old N.K. Specifically, DCS received a report that N.K. had told Mother that Father had sexually abused N.K. Before DCS family case manager Timothy Kalvaitis ("FCM Kalvaitis") had had the opportunity to meet with Mother to discuss the allegations, Mother reported the allegations to law enforcement officers ("the officers") the following night. The officers requested that a DCS family case manager assist in the report, and FCM Kalvaitis met the officers at Mother's home. Mother told the officers that N.K. was with Father at that time, and the officers and FCM Kalvaitis met with Father at his mother's ("paternal grandmother") home. Father denied the allegations. FCM Kalvaitis interviewed four-year-old N.K., who also denied the allegations. FCM Kalvaitis contacted a staff person at Kids Talk about conducting a forensic interview with N.K. However, the staff person told FCM Kalvaitis that it was not in N.K.'s best interests to be interviewed again because N.K. had already participated in several forensic interviews. When FCM Kalvaitis told Mother that, at that time, he had no reason to remove N.K. from Father's care, Mother became "irate." (Tr. Vol. 1 at 60).
[¶6] A few days later, Mother requested that FCM Kalvaitis meet with N.K. at her school. FCM Kalvaitis went to the school and interviewed N.K. She told FCM Kalvaitis that "daddy touched [her] gina." (Tr. Vol. 1 at 62). FCM Kalvaitis gave N.K. a pen and paper and asked her to draw a picture indicating where she had been touched. N.K. began drawing and then just stopped. She returned the pen and paper to FCM Kalvaitis and told him that she did not know.
[¶7] Thereafter, FCM Kalvaitis went to Mother's home and met with Mother and her boyfriend, Christopher Reed ("Reed"). FCM Kalvaitis told Mother and Reed that he would attempt to schedule another forensic examination for N.K. Mother requested that FCM Kalvaitis "detain [N.K.] from Father's care[.]" (Tr. Vol. 1 at 63). However, FCM Kalvaitis told Mother that after speaking with N.K., he did not have enough evidence that any sexual abuse had occurred.
[¶8] Later that night, Mother took N.K. to the emergency room at a hospital in Anderson and reported her concerns that N.K. had been sexually abused. Another DCS family case manager ("the other family case manager") went to the hospital to investigate the case. Mother told the other family case manager that Mother had asked N.K. "if [F]ather had put his fingers inside of [N.K.]'s vagina[,]" and N.K. had responded that Father had touched her "inside and outside of her vagina[.]" (Tr. Vol. 1 at 64). Staff at the hospital declined to perform a SANE examination, which "is a very intrusive exam" that is traumatic to a child. (Tr. Vol. 1 at 95). Specifically, the staff at the hospital did not believe that they had enough evidence to support a SANE examination on N.K.
[¶9] The following day, FCM Kalvaitis contacted Kids Talk again about conducting another forensic interview with N.K. A staff person at Kids Talk reiterated that it was not in N.K.'s best interests to participate in another forensic interview and refused to conduct one. FCM Kalvaitis again told Mother that Kids Talk had refused to conduct another forensic examination. Mother became upset and again asked FCM Kalvaitis to keep N.K. from Father because N.K. had an upcoming visit with Father that evening. FCM Kalvaitis told Mother that she could not restrict Father's access to N.K. However, Mother refused to allow N.K. to visit Father that evening.
[¶10] Also, that same day, FCM Kalvaitis spoke with Father. Father explained that N.K. had told him that Mother had told N.K. to make the allegations against Father. FCM Kalvaitis also spoke with N.K.'s therapist ("N.K.'s therapist"), who told FCM Kalvaitis that N.K.'s disclosures were inconsistent with her demeanor and body language. N.K.'s therapist further told FCM Kalvaitis that she had no concerns that Father was sexually abusing N.K.
[¶11] Thereafter, FCM Kalvaitis spoke with his supervisor, and they determined that:
the evidence did not point to [Father] sexually abusing [N.K.] but rather information pointed to [M]other was coaching [N.K.] to make statements and that in doing so [M]other was exposing [N.K.] to unnecessary intrusive examinations such as the SANE examination and forensic interviews which are ultimately going to be detrimental to the child's overall health and wellbeing.(Tr. Vol. 1 at 75).
[¶12] On April 25, 2022, DCS filed a petition alleging that N.K. was a CHINS. The petition specifically alleged, in relevant part, as follows:
This petition is based upon, and is supported by, the following alleged material facts: * * * * *
d. [N.K.] has been the subject of multiple reports made to the Department of Child Services (DCS) pertaining to allegations of physical and sexual abuse, many of which have been unsubstantiated.
e. During the course of those assessments, [N.K.] has been subjected to multiple invasive examinations and interviews.
p. Given the family's history and the inconsistencies surrounding [N.K.]'s statements, DCS and law enforcement are concerned that [N.K.] is being coached to make false disclosures of sexual abuse.
q. DCS further believes that the pattern of unsubstantiated reports pertaining to sexual abuse and their corresponding invasive examinations and interviews are harmful to [N.K.], and that that pattern is unlikely to be broken without intervention from DCS and the Court.(App. Vol. 2 at 32).
[¶13] On April 27, 2022, the trial court held the initial hearing in the CHINS case. Mother was represented by private counsel Roland B. Wilson III ("Attorney Wilson"), and Father appeared pro se. The trial court authorized DCS to remove N.K. from Mother and to place the child with Father. In addition, the trial court scheduled the CHINS factfinding hearing for June 17, 2022.
[¶14] In May 2022, Mother married Reed. In June 2022, DCS filed a petition to continue the scheduled factfinding hearing because it planned to file an amended CHINS petition with new allegations. Also in June 2022, Father filed a written request for the appointment of a public defender. The trial court granted DCS' motion to continue the hearing and appointed a public defender to represent Father.
[¶15] The following month, July 2022, DCS filed an amended CHINS petition. According to the petition, Father had reported to DCS "some concerning behavior" from Mother and Reed. (App. Vol. 2 at 50). Specifically, Father had reported that he had been seeing Mother and/or Reed "with unusual frequency and/or [at] unusual locations[,]" including in front of his place of employment and at a restaurant where he was dining with N.K. (App. Vol. 2 at 50).
[¶16] The trial court held an initial hearing on the amended CHINS petition in July 2022. Mother was represented by Attorney Wilson, and Father was represented by a public defender. Mother and Father agreed to engage in mediation. However, Mother subsequently filed a motion to vacate the scheduled mediation and asked the trial court to set the matter for a factfinding hearing. The trial court granted Mother's motion and scheduled the CHINS factfinding hearing for October 3, 2022.
[¶17] In September 2022, Father filed a motion asking the trial court to award him custody of N.K. and to dismiss the CHINS case. One week later, DCS filed a motion asking the trial court to hear the custody matter first. According to DCS, if the trial court granted Father's motion for custody of N.K., a CHINS factfinding hearing would not be necessary.
[¶18] The trial court held the first day of the factfinding hearing as scheduled on October 3, 2022. At the hearing, the trial court heard the facts as set forth above through the testimony of FCM Kalvaitis. At the end of the day, the trial court scheduled the second day of the hearing for December 12, 2022.
[¶19] On November 16, 2022, Attorney Wilson filed a motion to withdraw his appearance because Mother had "failed to pay her bill." (Father's App. Vol. 2 at 19). The trial court granted Attorney Wilson's motion the following day. Twelve days later, on November 28, 2022, private counsel Trina Saunders ("Attorney Saunders") entered an appearance on Mother's behalf.
[¶20] At a December 7, 2022 status conference, Attorney Saunders orally asked the trial court to continue the December 12 factfinding hearing. According to Attorney Saunders, Mother had retained her just before Thanksgiving, and she had not had time to prepare for the case. The trial court granted Attorney Saunders' motion and scheduled the factfinding hearing for March 13, 2023.
[¶21] At the beginning of the March 13 hearing, DCS' counsel told the trial court that DCS and Mother had entered into an agreement ("the agreement"). Pursuant to the terms of the agreement, Mother had admitted that N.K. was a CHINS. Mother had also agreed to: (1) complete a parenting assessment; (2) participate in individual therapy; (3) complete a psychological assessment; and (4) participate in supervised visits with N.K. Also, pursuant to the terms of the agreement, DCS had agreed to make the necessary referrals for Mother's services. DCS' counsel also asked the trial court to "step[] down" Mother's therapeutic supervised visits with N.K. to general supervised visits. (Tr. Vol. 2 at 15).
[¶22] Regarding the custody matter, Father, DCS, and the CASA asked the trial court to proceed with the custody hearing. However, Attorney Saunders asked the trial court to continue the custody hearing because she wanted "to give [Mother] a little bit of time and . . . let things kind of settle down." (Tr. Vol. 2 at 12). The trial court granted Mother's motion to continue the custody hearing, entered a dispositional order in the CHINS case, and granted DCS's request to step down Mother's visits with N.K. to general supervised visits.
[¶23] On September 5, 2023, Attorney Saunders filed a motion to withdraw her appearance because Mother had "failed to comply with the Retainer Agreement." (App. Vol. 2 at 132). The trial court granted Attorney Saunders' motion. Within two weeks, private counsel Nathan Vining ("Attorney Vining") had entered an appearance on Mother's behalf.
[¶24] Attorney Vining represented Mother at a CHINS permanency hearing on September 20, 2023. The trial court's order approving the permanency plan reveals that Mother had participated in a parenting assessment. In addition, Mother was participating in individual counseling and supervised visits with N.K. The trial court's order also noted that N.K. had been placed with Father for the previous seventeen months and that she was progressing well. The trial court scheduled the custody hearing for October 23, 2023.
[¶25] Six days before the custody hearing, on October 17, 2023, Attorney Vining filed a motion to withdraw his appearance. Attorney Vining specifically explained that "[i]t would impose an unreasonable financial burden on [him] to require continued representation of [Mother] in this matter." (Father's App. Vol. 2 at 39). The trial court granted Attorney Vining's motion.
[¶26] Three days before the custody hearing, Mother filed a pro se motion to continue the hearing. On October 23, 2023, the trial court granted Mother's motion but specifically stated in its order that "[a]bsent an emergency, no further continuances will be considered." (Father's App. Vol. 2 at 46). In addition, the trial court rescheduled the custody hearing for December 5, 2023.
[¶27] On November 20, 2023, private attorney Deidra Haynes ("Attorney Haynes") entered an appearance on Mother's behalf. Attorney Haynes also filed an emergency motion to continue the hearing because she needed time to prepare for it. DCS filed an objection to Mother's motion. According to DCS, Mother's request for a continuance did not qualify as an emergency and "[a]ny more continuances ha[d] the potential to delay permanency for [N.K.]" (Father's App. Vol. 2 at 53).
[¶28] Father also filed an objection to the continuance. According to Father, Mother's retention of and failure to maintain several private counsels had delayed the proceedings on multiple occasions. Father further contended that "Mother's request f[ell] into the same pattern of using her own inability or refusal to meet her contractual obligations, to postpone the substantive hearing which [was] likely to end the CHINS proceedings once the substance [was] addressed." (Father's App. Vol. 2 at 55). Lastly, Father argued that Mother "should not use her attorney retention issues as a means to delay permanency for [N.K.]" (Father's App. Vol. 2 at 55).
[¶29] The trial court denied Mother's motion to continue the custody hearing. Thereafter, Attorney Haynes filed a motion to withdraw her appearance, which the trial court granted.
[¶30] At the beginning of the December 5, 2023 custody hearing, Mother told the trial court that she had filed a motion to continue the hearing that morning because she had not had enough time to retain another counsel. Father argued that "Mother ha[d] . . . bounced back and forth between multiple attorneys . . . the timing of them sometimes ha[d] been right on top of hearings exactly like this that ha[d] postponed . . . proceedings on multiple occasions[,]" and asked the trial court to deny Mother's motion. (Tr. Vol. 2 at 199). In addition, DCS pointed out that, at any time in the proceedings, Mother could have requested a public defender.
[¶31] The trial court denied Mother's motion to continue and proceeded with the custody hearing. At the hearing, Mother represented herself. She did not request a public defender.
[¶32] The testimony of Father's witnesses revealed that N.K., who was six years old at that time, was a "very joyful child[,]" who had a good relationship with Father. (Tr. Vol. 2 at 204). The testimony further revealed that Father had a stable job and that he and N.K. lived in a large home, where N.K. had her own bedroom. Father also helped N.K. with her school work, such as preparing for her spelling tests, and N.K. was doing well in school. The testimony also revealed that N.K. had a close relationship with paternal grandmother, paternal aunt, and two cousins. N.K. spent time with these relatives nearly every day and attended school with her two cousins. In addition, the testimony revealed that if the trial court granted Father's motion to modify custody of N.K., DCS would ask the trial court to dismiss the CHINS petition and would close the CHINS case. Mother vigorously cross-examined Father's witnesses.
[¶33] Mother also testified at the hearing. When asked if she thought that N.K. was safe in Father's care, Mother responded, "I can't say yes or no to that." (Tr. Vol. 3 at 8). Mother further testified that she still had "concerns about . . . [N.K.'s] disclosures[.]" (Tr. Vol. 3 at 11).
[¶34] In addition, Mother called witnesses to testify on her behalf. Specifically, Reed testified that he had known N.K. for three years. Reed also testified that he was concerned about N.K.'s safety because he "truly believe[d] that [N.K. was] still being sexually assaulted in Father's care." (Tr. Vol. 3 at 58).
[¶35] On December 28, 2023, the trial court issued an order granting Father's motion to modify custody of N.K. The trial court's order, which did not contain specific findings of fact and conclusions thereon, noted that custody had been established in a paternity action and that the modification of custody order should be filed under the paternity action's cause number "so as to sustain same following the formal dismissal of the . . . CHINS matter." (Father's App. Vol. 2 at 65). The trial court also dismissed the CHINS case.
[¶36] Mother now appeals.
Decision
[¶37] Mother argues that the trial court abused its discretion when it: (1) denied her motion to continue the custody modification hearing; and (2) modified custody of N.K. in favor of Father.
1. Motion to Continue
[¶38] Mother first argues that the trial court abused its discretion when it denied her motion to continue the custody modification hearing. We disagree.
[¶39] We review a trial court's decision to grant or deny a motion to continue for an abuse of discretion. In re K.W., 12 N.E.3d 241, 243-44 (Ind. 2014). We will reverse a trial court only for an abuse of that discretion. Smith v. Smith, 136 N.E.3d 656, 658 (Ind.Ct.App. 2019) (cleaned up). "A trial court abuses its discretion when it reaches a conclusion which is clearly against the logic and effect of the facts or the reasonable and probable deductions which may be drawn therefrom." Id. at 659 (cleaned up).
[¶40] "An abuse of discretion may be found on the denial of a motion for a continuance when the moving party has shown good cause for granting the motion." Id. at 658-59 (cleaned up). There are no "mechanical tests" for determining whether a request for a continuance was made for good cause. Matter of M.S., 140 N.E.3d 279, 285 (Ind. 2020) (cleaned up). Rather, the decision to grant or deny a continuance turns on the circumstances present in a particular case. Id.
[¶41] "[A]mong the things to be considered on appeal from the denial of a motion for continuance, we must consider whether the denial of a continuance resulted in the deprivation of counsel at a crucial stage in the proceedings." F.M. v. N.B., 979 N.E.2d 1036, 1040 (Ind.Ct.App. 2012) (cleaned up). We also consider whether the record demonstrates dilatory tactics on the part of the movant designed to delay coming to trial. Id. at 1041.
[¶42] When a trial court denies a party's motion for a continuance, there is a strong presumption that the trial court properly exercised its discretion. In re B.H., 44 N.E.3d 745, 748 (Ind.Ct.App. 2015), trans. denied. In addition, this Court has previously recognized that delays in the adjudication of a child case "impose significant costs upon the functions of government as well as an intangible cost to the lives of the children involved." In re B.J., 879 N.E.2d 7, 17 (Ind.Ct.App. 2008) (cleaned up), trans. denied.
[¶43] Here, our review of the evidence reveals that Mother had a pattern of retaining private attorneys and failing to pay them shortly before scheduled hearings. Not long after each private attorney had withdrawn from the case, Mother had retained another private attorney, who was able to obtain a continuance of the previously scheduled hearing in order to have time to prepare for it. In October 2023, after nearly a year of granting Mother's multiple motions to continue, the trial court specifically told Mother that it would not grant another motion to continue unless there was an emergency. Yet, Mother filed another motion to continue, which the trial court denied. At that time, the custody case had been pending for fifteen months. The trial court was not required to put N.K.'s permanency on hold any longer. Mother has failed to show that her motion to continue was made for good cause.
[¶44] Further, our review of the record reveals that when the trial court denied Mother's final motion to continue, Mother represented herself at the hearing. She vigorously cross-examined Father's witnesses, testified on her own behalf, and also called and questioned her own witnesses. Based on these facts and circumstances, we conclud that the trial court did not abuse its discretion when it denied Mother's motion to continue the custody hearing.
2. Child Custody Modification
[¶45] Mother next argues that the trial court abused its discretion in modifying custody of N.K. in favor of Father. Again, we disagree.
[¶46] At the outset, we note that there is a well-established preference in Indiana "'for granting latitude and deference to our trial judges in family law matters.'" Steele-Giri v. Steele, 51 N.E.3d 119, 124 (Ind. 2016) (quoting In re Marriage of Richardson, 622 N.E.2d 178, 178 (Ind. 1993)). In this regard, the Indiana Supreme Court has explained as follows:
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).
[¶47] We further note that the trial court in this case did not enter specific findings and conclusions thereon. We have long held that trial courts are not required to enter specific findings and conclusions thereon when modifying custody. Matter of Paternity of A.R.S., 198 N.E.3d 423, 431 (Ind.Ct.App. 2022). "Indeed, the plain language of the statute only requires a court to 'consider' the factors [set forth below], not to make a finding regarding each one." Id. (cleaned up). Instead, specific findings are required only if requested in writing pursuant to Indiana Trial Rule 52(A). Id. Here, neither party made such a request.
[¶48] Although the trial court was not required to enter specific findings and conclusions thereon, we note that such findings are helpful to us as the reviewing court and to the parties. Id. Specific findings, especially when they cite to the relevant statutes, give us confidence that the trial court considered the requisite factors when modifying custody. Id.
[¶49] Still, we presume that trial courts know and follow the law. Id. "We will overlook this presumption only if the trial court's order leads us to conclude that an unjustifiable risk exists that the trial court did not follow the applicable law." Id. (cleaned up). Absent clear indications to the contrary, we presume that the trial court considered all the relevant statutory factors when making its decision to modify custody of N.K. in favor of Father. See id.
[¶50] Because the trial court did not issue specific findings and conclusions thereon, we apply a general judgment standard. Id. at 430. Under this standard, we will reverse the award of custody only if the trial court's determination is clearly against the logic and effect of the facts and circumstances or the reasonable inferences to be drawn therefrom. Id. We will not reweigh the evidence or judge the credibility of witnesses. In re Paternity of C.S., 964 N.E.2d 879, 883 (Ind.Ct.App. 2012), trans. denied.
[¶51] Further, in order to reverse a trial court's custody determination, it is not enough that the evidence might have supported a different conclusion. Montgomery v. Montgomery, 59 N.E.3d 343, 350 (Ind.Ct.App. 2016), trans. denied. Rather, the evidence "must positively require the conclusion contended for by appellant before there is a basis for reversal." Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002).
[¶52] INDIANA CODE § 31-14-13-6 provides that a trial court may not modify an existing child custody order unless: (1) the modification is in the best interests of the child; and (2) there has been a substantial change in one or more of the statutory factors listed under INDIANA CODE § 31-14-13-2. These factors include:
(1) The age and sex of the child.
(2) The wishes of the child's 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 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[.]IND. CODE § 31-14-13-2. A change in circumstances must be judged in the context of the whole environment, and it is the effect upon the child that renders a change substantial or inconsequential. In re Paternity of Winkler, 725 N.E.2d 124, 128 (Ind.Ct.App. 2000).
[¶53] Here, Mother specifically contends that "the evidence presented fails to show that there had been a substantial change in one of the statutory factors[.]" (Mother's Br. 24). However, our review of the evidence reveals that the trial court in the paternity action awarded custody of N.K. to Mother. Since that custody order was entered, DCS has received several reports that Father has sexually abused N.K. As a result of these allegations, N.K. had to participate in several forensic interviews and SANE examinations. Following each investigation, DCS determined that the allegations were unsubstantiated.
[¶54] When the allegations against Father continued to be reported, and professional service providers declined to further interview and examine N.K., DCS determined that the evidence revealed that Mother had been coaching N.K. to make statements and had also been exposing N.K. to unnecessary intrusive examinations that would ultimately be detrimental to N.K.'s health and wellbeing. DCS filed a CHINS petition and placed N.K. in Father's care while Mother participated in services. During the course of the CHINS proceedings, Mother married Reed.
[¶55] At the custody hearing, which was held nearly two years after the commencement of the CHINS proceeding, Mother testified that she still had concerns about N.K.'s disclosures. Reed testified that he truly believed that Father was still sexually abusing N.K. This evidence supports the trial court's finding that there was a substantial change in one or more of the factors listed in INDIANA CODE § 31-14-13-2. Specifically, this evidence supports a substantial change in statutory factor 4(A), the interaction and interrelationship of N.K. with Mother, and 4(C), the interaction and interrelationship of N.K. with Reed, who now lives in Mother's home and may significantly affect N.K.'s best interest.
[¶56] Mother also contends that "the evidence presented fails to show . . . that modification is in [N.K.]'s best interests." (Mother's Br. 24). However, our review of the record reveals that N.K. has a close relationship with Father, paternal grandmother, paternal aunt, and two cousins, who attend school with N.K. Father has financial stability and a house where N.K. has her own bedroom. Father also helps N.K. with her school work, including studying for spelling tests, and N.K. is doing well in school. We further note that Mother and Reed continue to believe that Father is sexually assaulting N.K. These beliefs threaten to undermine N.K.'s relationship with Father. The totality of this evidence supports a determination that a modification of custody was in N.K.'s best interests. Mother's argument is an invitation for us to judge the credibility of witnesses and reweigh the evidence, which we cannot do. See Paternity of C.S., 964 N.E.2d at 886. The trial court did not abuse its discretion in modifying custody of N.K. in favor of Father.
[¶57] Affirmed.
May, J., and Brown, J., concur.