Opinion
No. 03A01-1012-JP-653
10-12-2011
ATTORNEY FOR APPELLANT : DAN A. PATTERSON Jones Patterson & Tucker, PC Columbus, Indiana ATTORNEY FOR APPELLEE : R. PATRICK MAGRATH Alcorn Goering & Sage Madison, Indiana
Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT:
DAN A. PATTERSON
Jones Patterson & Tucker, PC
Columbus, Indiana
ATTORNEY FOR APPELLEE:
R. PATRICK MAGRATH
Alcorn Goering & Sage
Madison, Indiana
APPEAL FROM THE BARTHOLOMEW CIRCUIT COURT
The Honorable Jon W. Webster, Special Judge
Cause No. 03C01-0110-JP-1440
MEMORANDUM DECISION - NOT FOR PUBLICATION
BAILEY , Judge
Case Summary
Appellant-petitioner D.B. ("Mother") appeals the court's order granting appellee-respondent M.B. ("Father") six hours of weekly unsupervised parenting time with their child, P.B. She raises a single issue for our review: whether the court abused its discretion when it did not entirely eliminate Father's parenting time. We affirm.
Facts and Procedural History
P.B. was born on July 8, 2001, and paternity was established by agreement between Mother and Father on November 20, 2001. Mother was granted physical custody; Father had parenting time and was ordered to pay child support. Over the next several years, the parties' parenting relationship was contentious, and each made multiple motions on various issues as well as numerous contempt filings.
On November 17, 2008, Mother filed a Petition to Modify Parenting Time, wherein she requested that Father's parenting time be restricted and reduced. Then, on March 4, 2009, Mother filed an Emergency Petition to Modify Parenting Time seeking to temporarily terminate Father's parenting time based on allegations that Father had inappropriately touched P.B. and threatened him with a gun as a disciplinary measure. The court took up these motions—as well as several others filed by the parties—in a hearing held over several days on May 11, 2009, September 23-24, 2009, and November 23, 2009.
The court issued its "Order on all Pending Issues" on December 11, 2009. In that order, the court noted that although Mother's November 17, 2008 petition facially sought only to modify parenting time, "her request in Court was to terminate parenting time entirely" and therefore the court addressed the issue of whether Father's parenting time should be eliminated. Tr. 46. Regarding this matter, the court concluded that because Mother sought to eliminate all of Father's parenting time, she had to demonstrate by "clear and convincing" evidence that termination of parenting time was in P.B.'s best interest, similar to the standard used when the State seeks to terminate parental rights. App. 47-48. Applying this standard to the evidence, the court concluded that Mother did not meet that burden and ordered that Father have parenting time pursuant to the Indiana Parenting Time Guidelines. Mother appealed and we reversed, holding that the preponderance of the evidence standard applies:
Although we are sympathetic to the trial court's concerns, we observe that the termination of Father's parenting time would not necessarily be permanent, unlike in a termination of parental rights proceeding. We further observe that, unlike in a termination of parental rights proceeding, it is the child's custodial parent, and not the State, that has requested the restriction of parenting time. For these reasons, and until our legislature or our supreme court determines otherwise, we conclude that the preponderance standard is the appropriate burden of proof in this situation.In re Paternity of P.B., 932 N.E.2d 712, 720 (Ind. Ct. App. 2010).
Pursuant to our opinion, the trial court held a hearing on December 3, 2010, and then issued an "Order on Remand" on December 8, 2010 that stated:
Using the lesser standard of proof required by remand, the Court now finds that parenting time be limited, but not eliminated, nor supervised, to allow for Respondent and [P.B.] to slowly reunify their relationship. Therefore, parenting time hereafter shall be every Saturday (except Christmas Day) from noon to 6:00 p.m. beginning December 18, 2010, and Christmas Eve from noon to 6:00 p.m. and New Year's Day from noon until 6:00 p.m.App. 19.
Mother now appeals this order. Additional facts will be supplied as necessary.
Discussion and Decision
Standard of Review
Decisions regarding parenting time are committed to the sound discretion of the court, and we may reverse such decisions only upon a showing of a manifest abuse of discretion. Walker v. Nelson, 911 N.E.2d 124, 130 (Ind. Ct. App. 2009). A court abuses its discretion when its decision is clearly against the logic and effect of the facts and circumstances before it. Id. When reviewing such decisions, we neither reweigh the evidence nor reexamine the credibility of the witnesses. Id. Instead, we view the evidence in the light most favorable to the court's decision to determine whether the evidence and reasonable inferences therefrom support its decision. Id.
Analysis
Mother appeals the court's decision not to eliminate Father's parenting time and instead grant him six hours of weekly unsupervised time. Specifically, Mother argues that because the court found that parenting time with Father would endanger P.B.'s health and well-being or significantly impair P.B.'s emotional development, it was an error not to eliminate Father's parenting time. Father maintains that the court made no finding of endangerment or impairment, and contends that the court's Order on Remand should be affirmed.
Indiana recognizes that a non-custodial parent's parenting time with his or her child is a "precious privilege." D.B. v. M.B.V., 913 N.E.2d 1271, 1275 (Ind. Ct. App. 2009) (quoting Duncan v. Duncan, 843 N.E.2d 966, 969 (Ind. Ct. App. 2006), trans. denied). A court "may modify an order granting or denying parenting time rights whenever modification would serve the best interests of the child." I.C. § 31-14-14-2. However, pursuant to Indiana Code Section 31-14-14-1:
A noncustodial parent is entitled to reasonable parenting time unless the court finds, after a hearing, that parenting time might:
(1) endanger the child's physical health; or
(2) significantly impair the child's emotional development.
Even though the statute uses the word "might," this court interprets the statute to mean that a court may not restrict parenting time unless that time would endanger the child's physical health or well-being or significantly impair the child's emotional development. Farrell v. Littell, 790 N.E.2d 612, 616 (Ind. Ct. App. 2003). "By its plain language, Indiana Code § 31-14-14-1 requires a court to make a specific finding of physical endangerment or emotional impairment prior to placing a restriction on the noncustodial parent's visitation." Id. (citation and quotation marks omitted). A party who seeks to restrict a parent's visitation bears the burden of presenting evidence justifying such a restriction, id., which that party must do by a preponderance of the evidence. P.B., 932 N.E.2d at 720.
Here, the parties dispute whether or not the court concluded that parenting time with Father would endanger P.B.'s physical health or well-being or would significantly impair his emotional development. A review of the court's order, however, reveals that nowhere in the order's language does it indicate that the court made such a finding, which it must specifically do before denying Father reasonable parenting time. Instead of eliminating his parenting time as Mother requested, the court concluded that Father should have six hours each week, and that it be unsupervised. Thus, we must agree with Father and conclude that the court determined that Mother did not meet her burden to establish by a preponderance of the evidence that parenting time with Father would endanger or impair P.B. In so doing, we reject Mother's argument that the court must have found that parenting time with Father would endanger or impair P.B. because six hours of parenting time is an unreasonable restriction (even though Father makes no such argument). Simply put, we refuse to infer a factual finding that the court is required to make expressly before denying Father reasonable parenting time rights.
Moreover, given the evidence in the record, we cannot say that the court's order is an abuse of discretion or is not in P.B.'s best interest. Similar to the situation in Farrell, "[t]his case illustrates the tension between protecting children from heinous sexual abuse and protecting innocent parents from interruption and loss of parental rights, which almost inevitably accompanies a charge of sexual abuse—no matter how loosely those charges are grounded in fact." 790 N.E.2d at 616-17. Here, the allegations of inappropriate touching and disciplinary threats by Father were investigated by authorities and determined to be unsubstantiated. Father denied the allegations at the hearing, and P.B. did not testify that Father touched him or disciplined him inappropriately. Even though P.B. was alleged to suffer physical symptoms from post-traumatic stress syndrome such as urinating or defecating in his pants, his daycare records document no such incidents.
Before its orders of December 11, 2009 and December 8, 2010, Father had parenting time Wednesday evenings and every other weekend. The court's order for six hours of weekly parenting time therefore represents a modification and reduction in Father's parenting time since the court's last parenting time order. However, since filing her petition, Mother has allegedly unilaterally denied Father all parenting time and therefore Father does not challenge the court's modification. Instead, he argues that it is an appropriate schedule to phase in parenting time because he has had a significant lack of contact with P.B. See Indiana Parenting Time Guidelines, Section II ("Where there is a significant lack of contact between a parent and a child, there may be no bond, or emotional connection, between the parent and child. It is recommended that scheduled parenting time be 'phased in' to permit the parent and child to adjust to their situation.")
Rose Ellen Adams, a licensed social worker and Father's friend, testified that she would not hesitate to leave her own children with Father, and described Father's involvement in P.B.'s life as a non-custodial parent as "admirable." Tr. 477, 496. Based on her observations, Father does not discipline P.B. harshly, and instead uses "time out" and "redirection" methods. Two teacher aides at P.B.'s school both testified that P.B. was not fearful when interacting with Father, and instead appeared happy to see him when Father visited for lunch. Two of P.B.'s football coaches also testified and both stated that P.B. did not appear afraid of Father. To the contrary, P.B. was very loving towards Father, and the two seemed to enjoy a loving father-son relationship.
Father's brother also testified that P.B.'s relationship with Father is "positive" and that he has never observed Father perform any actions around P.B. that would concern him. Tr. 651. Father's landlord stated that Father's discipline of P.B. was "very appropriate" and that P.B. had "great respect" for Father. Tr. 585. He added that P.B. always seemed happy to be with Father, that they got along, and that P.B. was always smiling and happy regardless of what they were doing.
Given all of this evidence, and the unsubstantiated nature of the allegations against Father, we cannot say that the court abused its discretion in concluding that Mother failed to meet her burden and in fashioning its parenting time order. Addressing any arguments to the contrary would involve reweighing the evidence or assessing witness credibility, which we will not do. Walker, 911 N.E.2d at 130.
Affirmed. MATHIAS, J., and CRONE, J., concur.
Father urges us to assess damages in the form of appellate attorney fees, but we decline to do so. Indiana Appellate Rule 66(E) provides that "[t]he court may assess damages if an appeal.. .is frivolous or in bad faith. Damages shall be in the Court's discretion and may include attorney's fees." However, our discretion to award attorney's fees is limited to instances when an appeal is permeated with meritlessness, bad faith, frivolity, harassment, vexatiousness, or purpose of delay. Thacker v. Wentzel, 797 N.E.2d 342, 346 (Ind. Ct. App. 2003). We do not think that Mother's appeal rises to the level of appellate abuse, and therefore it does not warrant damages.
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