Palma v. Keown (In re E.B.K.)

242 N.E.3d 500

In the MATTER OF the PATERNITY OF E.B.K.;

Genesis E. Palma, Appellant-Petitioner

v.Zachary K. Keown, Appellee-Respondent

Court of Appeals Case No. 23A-JP-2316

Court of Appeals of Indiana.

Filed August 14, 2024

Appeal from the Warrick Superior Court, The Honorable Benjamin R. Aylsworth, Magistrate, Trial Court Cause No. 87D02-2002-JP-20

Attorneys for Appellant: Trisha S. Dudlo-McCracken, Derrick W. McDowell, Dentons Bingham Greenbaum LLP, Evansville, Indiana

Attorney for Appellee: Lisa B. Harris, Long Law Office, P.C., Boonville, Indiana

Tavitas, Judge.

Case Summary

[1] Genesis Palma ("Mother") appeals the trial court’s grant of a modification of custody regarding E.K. ("Child"), which was filed by Zachary Keown ("Father"). The parties initially agreed to joint legal and physical custody; however, the trial court later granted Father’s petition for emergency temporary change of custody and ordered that Mother have supervised parenting time with the Child. Thirty-two months later, the trial court began final hearings regarding the Child’s custody.

The trial court granted Father’s petition for change of custody and granted Mother unsupervised parenting time.

[2] Mother argues that her due process rights were violated during these proceedings due to procedures used to grant the temporary change of custody, delays in conducting the final hearings, and the denial of guardian ad litem ("GAL") discovery. Mother also argues that the trial court erred by granting Father’s petition to modify custody. As for the due process argument, we conclude that Mother has failed to demonstrate a due process violation regarding the emergency temporary change of custody. We, however, conclude that Mother’s due process rights were violated by the extraordinary delays in conducting the final custody hearings and by the trial court’s denial of Mother’s discovery requests to the GAL. Moreover, regarding the petition to modify custody, Mother has demonstrated that the trial court failed to find a proper substantial change in circumstances and erred by granting the petition. Accordingly, we reverse and remand.

Issues

[3] Mother raises several issues, which we restate as:

I. Whether Mother’s due process rights were violated by the procedures used by the trial court to grant the temporary change of custody.

II. Whether Mother’s due process rights were violated by the delays in proceeding to the final custody hearing.

III. Whether Mother’s due process rights were violated by the trial court’s denial of Mother’s discovery requests to the GAL.

IV. Whether the trial court erred by granting Father’s petition to modify custody.

Facts

[4] The Child was born in June 2018 to Mother and Father. Mother has an older child, E.P., and Mother has sole legal and physical custody of E.P. David Heal was appointed as the GAL during the paternity proceedings for the Child. Due to concerns regarding Mother’s mental health, substance abuse by Mother, and an open Department of Child Services ("DCS") investigation, the GAL recommended joint physical custody as long as Mother lived with her parents and supervised visits for Mother if she moved to another residence, In February 2019, Mother and Father reached an agreement regarding custody, parenting time, and child support. The parties agreed to joint legal and physical custody. The agreement required ninety days written notice if either Mother or Father intended to change their residence.

[5] In January 2020, Mother married Clayton Alexander after dating him for approximately seven months, and she and the children moved out of her parents’ residence. On February 5, 2020, Father filed an emergency petition to modify custody. Father alleged that: Mother had a history of mental illness and substance abuse; the Child has had unexplained bruising; Mother no longer resided at her parents’ residence; Mother indicated a desire to move to Chicago; and Mother recently eloped and refused to provide any information about her new husband.

[6] The trial court held a hearing on the emergency petition on February 18, 2020. During Father’s testimony, Mother, who was pro se, requested a continuance to hire an attorney. The trial court denied Mother’s motion. Father testified that he often has the Child during Mother’s parenting time; the Child had unusual bruising during the past two months; Mother moved without any prior notice to Father; Mother made concerning statements to Father regarding her relationships with drug dealers and murderers, who according to Mother were following Father and his fiancée; and Mother threatened to relocate to Illinois. Father was concerned regarding Mother’s mental health, drug abuse, unstable living situation, and lack of stable employment.

[7] Father called Heal, the GAL in the 2018 paternity action, to testify. The GAL testified that, during his 2018 investigation, Mother failed to inform the GAL about an open DCS investigation, which had been substantiated. At the time, Mother was cutting herself and left a mental health facility without obtaining treatment. On one occasion, Mother had cocaine in her system when she went to the hospital. According to the GAL, Father also claimed that Mother battered him.¹

[8] Mother testified that: (1) she had been receiving counseling; (2) she was no longer cutting herself; and (3) she recently married. The trial court declined to grant the emergency custody change at that time, reappointed Heal as GAL, and set a progress hearing for April 7, 2020.

[9] On March 4, 2020, Father filed his second emergency petition to modify custody, in which he alleged that: (1) on February 13, 2020, officers responded to Mother’ residence due to a report of domestic violence and, the officers transported Mother to the hospital against her will because she was demonstrating signs of mental illness and was a danger to others; (2) on February 28, 2020, officers again responded to Mother’s residence due to a report of domestic violence in the presence of the Child; and (3) Mother cancelled her appointment with the GAL on the same day as one of the domestic violence incidents.

[10] On March 4, 2020, the GAL filed a written report with the trial court. The GAL reported Mother’s missed appointment with the GAL on February 28, 2020. Mother claimed she cancelled the appointment because the Child was ill. Additionally, the police department contacted the GAL to inform him of domestic violence between Mother and her husband, Alexander, on February 28, 2020. Officers reported to the GAL that the domestic violence occurred in front of Mother’s children; Mother had alcohol on her breath; Mother allegedly threatened people with a hammer and scissors; Mother had bruises on her arms; and Mother’s husband, Alexander, also had bruises. The officers reported the matter to DCS. The GAL made the following recommendation to the trial court:

The Guardian ad Litem shares the exact same concerns as two years ago. Mother should not have custody of these children without supervision. The Guardian ad Litem awaits to hear from the Department of Child Services. The Guardian ad Litem believes mother should have a mental evaluation done. (Not by Brentwood Springs).

Id. at 61.

[11] On March 11, 2020, the trial court held a hearing on Father’s emergency motion. Father’s counsel requested that the hearing be conducted in summary fashion, and Mother’s counsel agreed "to submit to the summary hearing …. " Tr. Vol. II p. 37. Mother’s counsel also orally requested findings of fact and conclusions thereon, which the trial court denied because the trial court did not "have time in [its] calendar to do that." Id. at 38. The GAL testified that he had concerns regarding Mother’s mental health and concerns that she was abusing substances. The GAL recommended that Mother have a psychological evaluation other than at Brentwood Springs because Mother had previously been evaluated by Brentwood Springs, and the evaluation was not comprehensive in the GAL’s opinion. The GAL also recommended that Father have custody of the Child and that Mother have supervised parenting time. Mother argued that Father failed to prove that Mother’s parenting time would endanger or impair the Child’s physical or mental health.

[12] On March 20, 2020, the trial court issued a written order granting Father’s petition for emergency modification of custody. The trial court found that a "bona fide emergency regarding the custody of [the Child] exists," that the previous joint physical and legal custody arrangement was "temporarily suspended," and that Father was granted legal and physical custody of the Child until further notice of the court. Appellant’s App. Vol. II pp. 64-65. The trial court granted Mother supervised parenting time of eight hours a week, ordered Mother to submit to a hair follicle analysis and a urinalysis, and ordered Mother to submit to a "psychological evaluation." Id. at 66. If Mother submitted the required drug testing and "psychological evaluation," the trial court indicated that it would consider allowing maternal grandmother to supervise Mother’s parenting time with the Child. Id.

[13] Mother immediately submitted to the drug testing and tested negative for unprescribed or illicit substances. Mother’s marriage to Alexander was annulled, and Mother obtained a protection order against him in March 2020. Mother entered into an Informal Adjustment with DCS regarding E.P.; Mother completed services, including a mental health evaluation and group therapy; and the Informal Adjustment was closed in March 2021. E.P. was never removed from Mother’s care by DCS.

[14] The Covid-19 pandemic interfered with Mother’s ability to engage in supervised parenting time with the Child. By May 21, 2020, Mother had not seen the Child in ten weeks except for limited Face-Time calls. Mother informed the trial court that Father was refusing to allow Mother to attend the Child’s doctor appointments; he limited and recorded FaceTime calls; and...