P.M.S. v. T.P.W. (In re A.R.S.)

198 N.E.3d 423

In the MATTER OF the PATERNITY OF A.R.S. (Minor Child);

P.M.S., Appellant-Petitioner,

v.T.P.W., Appellee-Respondent.

Court of Appeals Case No. 22A-JP-529

Court of Appeals of Indiana.

Filed November 16, 2022

Attorney for Appellant: Jonathan M. Young, Law Office of Jonathan M. Young, P.C., Newburgh, Indiana

Attorney for Appellee: Robin R. Craig, Evansville, Indiana

Tavitas, Judge.

Case Summary

[1] P.M.S. ("Father") appeals the order of the trial court modifying custody of A.R.S. ("Daughter") in favor of T.P.W.

("Mother") and awarding Father parenting time pursuant to the Indiana Parenting Time Guidelines. Father claims that the trial court abused its discretion by: (1) modifying custody in favor of Mother; and (2) granting Father less parenting time than that called for in the Indiana Parenting Time Guidelines. We conclude that the trial court did not abuse its discretion by modifying custody in favor of Mother and that the trial court, in its written order, granted Father parenting time pursuant to the Indiana Parenting Time Guidelines. Accordingly, we affirm.

Issues

[2] Father presents two issues, which we restate as:

I. Whether the trial court abused its discretion by modifying the existing custody order to give Mother primary physical custody of Daughter and awarding the parties "joint legal custody" with Mother as "the final decision maker in areas of disagreement." Amended Notice of Completion of Clerk's Record pp. 3.

II. Whether the trial court abused its discretion by granting Father parenting time pursuant to the Indiana Parenting Time Guidelines.

Facts

[3] Daughter was born in July 2012 to Mother and Father ("Parents"). Father established paternity in 2013. In 2016, the trial court granted Father primary physical custody of Daughter and granted joint legal custody to Parents. Mother was granted parenting time pursuant to the Indiana Parenting Time Guidelines.

[4] Mother lives in Evansville, Indiana, with her husband and two other children. Mother's husband was previously on active duty in the United States Army, which required her to move several times in the past. Mother's husband was honorably discharged at the end of 2021 and has lived with Mother since his discharge. Father lives nearby in Newburgh, Indiana, with his girlfriend. He is employed as a contractor and occasionally tends bar at a lounge in Evansville. While in Father's care, Daughter often spent time with her paternal grandparents.

[5] In October 2021, Daughter told a friend at school that Daughter had been molested. The Department of Child Services ("DCS") investigated, and Daughter reported that her eleven-year-old cousin ("Cousin") had been having sexual contact with her, including sexual intercourse at the grandparents’ home. DCS Family Case Manager ("FCM") Erica Cornelius investigated the allegations and spoke with Mother, Father, and Father's parents. Father acknowledged that, for the past several months, he and Daughter had been staying at Father's parents’ house, due to his house being treated for fleas. FCM Cornelius arranged for Daughter to undergo a forensic interview on October 15, 2021.

[6] The day before the scheduled interview, Mother arranged to pick Daughter up from school to start the fall break. Father and Mother argued over which parent would have Daughter over the break, and Father ultimately conceded that Daughter would spend the break with Mother. When Mother went to pick Daughter up from school, however, Daughter was not there. Concerned, Mother attempted to contact Father to no avail. Eventually, Mother discovered that Father had picked up Daughter. As a result, Mother never spoke to Daughter prior to the forensic interview. Although Father stated that he instructed Daughter to tell the truth during the forensic interview, regardless of the consequences, Daughter failed to repeat her allegations of sexual abuse during the interview.

[7] Mother still believed Daughter's initial claims of being molested. Daughter began to have suicidal thoughts and ideations and wrote in her journal of her desire to kill herself. Upon discovering this journal entry, Mother took Daughter to a treatment center, where Mother was given a safety plan to ensure Daughter's physical safety. Mother also discovered that Father and his parents had recently told Daughter Aesop's fable "The Boy Who Cried Wolf,"¹ which Mother believed played a part in Daughter's failure to disclose the abuse during the first forensic interview.

[8] On October 19, 2021, Daughter again reported to a teacher at school that Cousin had sexually abused her, and DCS scheduled another forensic interview. This time, Daughter reported the sexual abuse to the interviewer. Daughter stated that Cousin had been sexually molesting her since she was four years old and that the molestations occurred at her paternal grandparents’ home when grandparents were present but the children were unsupervised. Cousin admitted the sexual abuse. Despite determining that there was sufficient evidence to substantiate Daughter's report of sexual abuse, DCS decided not to substantiate the claims due to Cousin's age and fear that the stigma of being a sexual abuser would follow him into adulthood. Instead, DCS and Cousin's parents agreed that Cousin would enter treatment for sexually maladaptive behavior.

[9] The DCS report notes that Father was upset by the molestation allegations and that he made inconsistent statements about whether he planned to keep Daughter away from Cousin. Father also "kept trying to change the focus to the child's mother and was not addressing the allegations. FCM had to keep bringing the conversation back [to] the importance of his own child's mental health." Ex. Vol. p. 29. After Father reviewed the contents of the forensic interview, "he again kept discussing being worried about his nephew [i.e., Cousin], his mother, and his sister, but was not sympathetic to his own child." Id.

[10] Per DCS's request, Mother arranged for Daughter to attend counseling. The only session she missed occurred when Daughter was in Father's care. Father claimed that Daughter was sick on that day and accused Mother of failing to remind him of the appointment, even though he had been notified of the counseling sessions via email.

[11] DCS also referred the family to Ireland Home Based Services, where case worker Princess Wimsatt was assigned to the case. Both parents cooperated with Wimsatt, who informed the parents that they should not discuss any court-related matters in front of Daughter. Despite this, Father discussed with Daughter the possibility of changing schools.

[12] Wimsatt recommended that Daughter have a means of contacting both parents at all times. Accordingly, Mother obtained a cell phone for Daughter. Father did not agree with providing Daughter with a cell phone, but Wimsatt told Mother that she did not need Father's permission to give the phone to Daughter.² Father was upset by Mother's decision to give Daughter the phone, and when Daughter returned to his house, he immediately took the phone from her and would not give it back to Daughter while she was in his care. This upset Daughter. Nevertheless, Father and paternal grandmother contacted Daughter via her phone several times while Daughter was in Mother's care.

[13] While in Father's care, Daughter began to have issues at her school. Daughter disclosed to her friends that she had been sexually abused. Some of her friends then told their parents, who, inexplicably, informed their children to avoid Daughter. As a result, Daughter was isolated and bullied at school and often would not even go outside at recess. Daughter's school advisor and Father discussed switching elementary schools within the same school district. Mother wanted Daughter to switch to a school in Mother's school district. The parents discussed the bullying issue with the school principal, who suggested that the parents consider transferring Daughter to a different school.³ The Guardian Ad Litem ("GAL")⁴ was also concerned with the bullying Daughter experienced at school and recommended a transfer to another school.

[14] According to the then existing parenting-time order, "[t]he parties shall provide the other with the Opportunity for Additional Parenting, pursuant to the 2013 Indiana Parenting Time Guidelines, for any period of time that the parent is unavailable for four (4) hours or more." Appellant's App. Vol. II p. 30. During the latter part of 2021, however, Father frequently took Daughter to stay with his parents instead of giving Mother the opportunity for additional parenting time. This concerned Mother because Daughter was molested while in the care of her paternal grandparents. During the 2021 holiday season, Daughter was to spend the first half of her Christmas break with Mother and the second half with Father. Father informed Mother that he was not going to be working during this time. Mother, however, later discovered that Father was working during the break and had taken Daughter to her paternal grandparents’ house, even though Mother was available to care for Daughter.

[15] On October 22, 2021, Mother filed a petition to modify custody, parenting time, and child support. The trial court held evidentiary hearings on Mother's petition on November 18, 2021, December 20, 2021, January 24, 2022, and February 8, 2022. The GAL filed his report on December 8, 2021. The GAL recommended that Mother have primary physical custody of Daughter and that Daughter attend school in Mother's school district. The GAL also recommended that Daughter have no contact with Cousin. The GAL explained that Mother took Daughter's report of sexual abuse seriously, whereas Father believed the sexual contact was "consensual." Tr. Vol. II p. 72.

[16] Father testified that he had difficulty "processing" Daughter's allegations because of how close his family was. Id. at 100. He stated:

[Cousin] and my daughter are as close as brothers and sisters. I am very close with his mothe

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