Arriaga v. State (In re M.S.)

146 N.E.3d 951

In the PATERNITY OF M.S., L.S. and S.S.

Maria Arriaga, Appellant-Proposed Intervenor,

v.State of Indiana as Next Friend; Gabriela Ivonne De Landa, (Mother), and Samuel Salazar, (Father), Appellees-Respondents.

Court of Appeals Case No. 19A-JP-1595

Court of Appeals of Indiana.

FILED April 6, 2020

Case Summary

[1] Maria Arriaga appeals the trial court's order regarding a petition for modification of custody filed by Samuel Salazar ("Father"). We reverse and remand.

Issues

[2] Arriaga raises four issues, which we consolidate and restate as:

I. Whether the trial court erred by denying Arriaga's motion to reopen the evidence.

II. Whether the trial court erred by denying Arriaga's motion to intervene.

Facts

[3] Father and Gabriela De Landa ("Mother") are the parents of M.S., born in 2009; L.S. (the "Child"), born in 2010; and S.S., born in 2012 (collectively, the "Children"). Father and Mother were never married, and Father's paternity of each of the Children was established by a paternity affidavit. Shortly before the Child's birth, the State brought a Title IV-D proceeding regarding support for M.S.; a similar action regarding the Child was filed in February 2011 and consolidated with the action regarding M.S. In April 2011, the trial court entered an order confirming Father's paternity of M.S. and the Child, granting Mother custody of M.S. and the Child, and ordering Father to pay child support.¹

[4] Despite the establishment of paternity of the Child, there is a possibility that the Child's biological father is Jerry Hernandez, Arriaga's son. In June 2011, Mother left the Child with Arriaga, and the Child has remained in Arriaga's care since that time.

[5] In March 2018, Father filed a petition to modify the existing custody and child support order regarding the Children. Father alleged that the Child had been in Arriaga's care "for the past year" but that the Child should be in the care of a parent instead of a third party. Appellant's App. Vol. II p. 25. Regarding M.S. and S.S., Father alleged that: (1) by agreement with Mother, Father had custody of M.S. and S.S. from May 2017² until November 2017, when Mother took back custody of M.S. and S.S.; (2) after returning to Mother's care, M.S. and S.S. were missing school, and their grades were dropping; (3) while M.S. and S.S. were in Father's care, Mother was convicted of two drug-related felonies;³ (4) Mother moved four times in the preceding year; and (5) M.S. reported being inappropriately touched by Mother's fifteen-year-old brother, who regularly cared for the Children when the Children were with Mother. The trial court then appointed a GAL. The trial court also entered a provisional order giving custody of M.S. and S.S. to Father and continued the Child's placement with Arriaga.

[6] Arriaga filed a motion to intervene in September 2018 and alleged that Arriaga was the Child's de facto custodian. Arriaga later filed a "Motion for Formal Recognition of Arriaga Status and Custody Rights" in December 2018. In her motion for recognition of her custody rights, Arriaga noted: "It has always been, and continues to be, in [the Child's] best interests for [Arriaga] to be recognized and treated as her legal custodian, since [Arriaga] has been her primary care provider virtually all of her life."⁴ Id. at 49.

[7] In the initial GAL report, the GAL recommended that the Child remain in Arriaga's care because "[t]hat placement appears to be the least disruptive to her life and maintains the status quo." Id. at 37. In the later, updated GAL's report, the GAL noted that Arriaga "now feels that [the Child] should be in the custody of [Mother]. If, however, that is not possible, she wants to retain [the Child] in her custody." Id. at 52. The GAL ultimately recommended that all of the Children be placed with Father.

[8] At the March 2019 evidentiary hearing,⁵ the GAL, Mother, Father, and Arriaga testified. The GAL testified that Mother and Arriaga alleged Father was involved in gang activity and used drugs. Mother provided the GAL with photographs and an audio recording, which were taken by M.S. The GAL did not offer the photographs or recording into evidence. The GAL stated the photographs were not clear, and as for the recording, the GAL testified, in part:

It was a discussion. I believe it was after I had gone to the home and spoke [to] one [of] the children. Then there was a discussion between [M.S.] and [Father] and his wife with regard to – I guess I don't – talking about why [M.S.] should stay in their custody and why Mother shouldn't have custody of – of the child, and some – kind of a little bit of an argument between them. And it apparently has been recorded. It had made reference to usage of drugs or possible usage of drugs....

Tr. Vol. II p. 27. On cross-examination, Arriaga offered the photos referenced by the GAL into evidence, but she did not offer the recording or ask the GAL why he did not offer it into evidence himself. The GAL testified that it would be beneficial for the Child to be with her siblings and recommended that Father be granted custody of all three children.

[9] Arriaga testified that the Child has lived with her since the Child was an infant and that Arriaga was willing to have all of the Children live with her. Arriaga further testified that she still believed the Children should live with Mother. Arriaga also testified as follows:

Q. Do you feel they should be with you or with their mother?

A. That is hard because [the Child] has always lived with me, and the other children live with [Mother]. But in the end, I do believe that all three should be together.

Id. at 70. Mother also testified that, if she did not get custody of the children, she would prefer that Arriaga get custody. During closing arguments, Arriaga's counsel argued that there was no reason to change the current custody situation. Counsel proposed two solutions: (1) "leave things status quo until we can move down the line a little further and establish more stability and get more evidence"; or (2) "put the kids together in either Mom's custody or [Arriaga's] custody." Id. at 85. At the conclusion of the March 21, 2019 hearing, the trial court took the matter under advisement.

[10] In April 2019, Arriaga filed a motion to submit additional evidence and sought to submit the recording of Father and his wife made by M.S. The trial court denied Arriaga's motion.

[11] In May 2019, the trial court issued an order granting Father's motion to modify custody. The trial court noted that "all Parties appeared to concede that Father may not be [the Child's] biological father, and that [Arriaga] is indeed the mother of the man who is—or at least might be" the biological father. Appellant's App. Vol. II p. 10. As for Arriaga, the trial court denied each of her motions. Specifically, the trial court denied Arriaga's motion to intervene because it determined Arriaga was not a de facto custodian. The trial court found:

De facto custodians must have provided care for a Child for certain periods of time: six months for certain younger children, and one year for certain older children. Ind. Code § 31-9-2-35.5. However, "any period after a child custody proceeding has been commenced may not be included in determining whether the child has resided with the person for the required minimum period." Id.

As above, this proceeding "commenced" with respect to L. on February 9, 2011, under the cause number, since consolidated into this one, of 71J01-1102-JP-93. The Court entered its order establishing paternity a little over two months later, April 26, 2011. Given [the Child's] December, 2010, birthdate, any period of time another person cared for her cannot have reached six months before a child custody proceeding commenced.

Because Petitioner is not a de facto custodian, her intervention is not mandatory under Ind. Code 31-14-13-2.5(c), nor is she entitled to the quasi-presumption in favor of her custody established by Ind. Code 31-14-13[-]2.5(d). She may still, however, be entitled to discretionary intervention under Indiana Rule of Trial Procedure 24, and may be entitled to custody as a nonparent pursuant to Ind. Code 31-17-2-3(2), subject to the parent's constitutional right to raise the Child.

Id. at 10-11.

[12] The trial court then considered the factors of Indiana Code Section 31-14-13-2, granted Father's motion to modify custody, and issued an order "awarding custody of all three children to Father." Id. at 13. The trial court granted Mother supervised parenting time and denied each of Arriaga's motions. The trial court further found that it had no authority to grant visitation between Arriaga and the Child.

[13] Arriaga filed a motion to reconsider, which was deemed denied pursuant to Indiana Trial Rule 53.4. Arriaga then filed a motion to correct error for the trial court to consider "newly discovered material evidence" of the recording. Id. at 68. Arriaga claimed that the GAL "failed to fulfill his duty in representing the children" when he did not present the recording to the trial court. Id. at 69. The trial court denied Arriaga's motion to correct error. Arriaga now appeals.

Analysis

[14] At the outset, we note that no appellee's brief was filed in this case. "When an appellee fails to submit a brief, we apply a less stringent standard of review with respect to the showing necessary to establish reversible error." In re Paternity of S.C. , 966 N.E.2d 143, 148 (Ind. Ct. App. 2012), aff'd on reh'g , 970 N.E.2d 248 (Ind. Ct. App. 2012), trans. denied . "In such cases, we may reverse if the appellant establishes prima facie error, which is an error at first sight, on first appearance, or on the face of it." Id. "Moreover, we will not undertake the burden of developing legal arguments on the appellee's behalf." Id.

I. Motion to Reopen Evidence

[15] Arriaga argues that the trial court erred by denying her motion to reopen the evidence. Evidence must be offered during the course of a trial, and it is a matter...