In re the Paternity of N.E., by Next Friend, Jody W. Elkins v. Jennifer L. Hahn, f/k/a Jennifer L. Benson (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Mar 03 2017, 5:59 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE Gregory K. Blanford Robert J. Palmer The Blanford Law Office May Oberfell Lorber South Bend, Indiana Mishawaka, Indiana

IN THE COURT OF APPEALS OF INDIANA

In re the Paternity of N.E., by March 3, 2017 Next Friend, Court of Appeals Case No. 71A03-1605-JP-1066 Appeal from the Saint Joseph Jody W. Elkins, Superior Court Appellant-Petitioner, The Honorable Steven L. Hostetler, Judge v. Trial Court Cause No. 71J01-0905-JP-534 Jennifer L. Hahn, f/k/a Jennifer L. Benson, Appellee-Respondent

Vaidik, Chief Judge. Court of Appeals of Indiana | Memorandum Decision 71A03-1605-JP-1066 | March 3, 2017 Page 1 of 10

Case Summary [1] Jody Elkins (“Father”) appeals the trial court’s denial of his request to modify

physical custody of his daughter, N.E. Father contends that the evidence does

not support the court’s findings of fact and that the findings of fact do not

support the judgment. Finding no error, we affirm.

Facts and Procedural History [2] Jennifer Hahn (“Mother”) gave birth to a daughter, N.E., on March 21, 2008.

At the time of N.E.’s birth, Mother and Father were no longer romantically

involved, but Father established paternity in 2009. Since N.E.’s birth, Mother

and Father have engaged in a custody battle. Both parents have alleged that the

other has endangered N.E., including allegations of sexual and emotional

abuse. As a result, N.E., who is currently eight years old, has been questioned

multiple times by the Department of Child Services (DCS) and law-

enforcement personnel, undergone six physical examinations and one

psychosexual evaluation, and testified in court. [3] In May 2010, Mother and Father agreed to joint legal and physical custody,

with each having equal parenting time. This agreement was in place for less

than a year when, in January 2011, Father petitioned the court to modify

physical custody and award him primary physical custody of N.E. Roughly

two weeks before the hearing on Father’s motion, DCS received a report that

Father had sexually molested N.E. Father’s parenting time was suspended

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during the investigation, and Mother was awarded sole legal custody. The

court delayed the custody hearing pending DCS’s findings. The molestation

claim was unsubstantiated, and the court reset the hearing. Approximately one

week before the reset hearing, DCS received another report alleging that Father

had sexually abused N.E. The court, again, delayed the hearing pending DCS’s

findings. This claim was also unsubstantiated. In June 2013, a temporary

order was entered allowing Father unsupervised parenting time every other

weekend; his original motion to modify physical custody remained pending. [4] Mother and Father attended mediation to try and resolve their custody battle,

but they were unsuccessful. In August 2014, following the unsuccessful

mediation, the court appointed a Guardian Ad Litem (GAL) for N.E. and

instructed the GAL to investigate the issues of custody and parenting time.

While the GAL was conducting her investigation, N.E. began seeing a

therapist. A month after N.E. started therapy, the GAL submitted her initial

report to the court, recommending that Father have a few extra hours with N.E.

on his parenting weekends. [5] During a therapy session in July 2015, N.E. told the therapist that she had lied

when she said that Father had sexually abused her. The therapist informed

Mother and Father that N.E. had recanted the allegations against Father (which

had already been unsubstantiated by DCS). Mother asked N.E. why she lied

about being abused. N.E. responded that she did not lie about the abuse, but

rather Father had told her to recant and say that he did not abuse her. See Tr. p.

265-66. Meanwhile, the GAL continued with her investigation, including

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talking with N.E.’s therapist, and submitted to the court a supplemental report

in December 2015. The GAL again recommended that Father have more

parenting time with N.E. However, the report explicitly stated that Father

should not have primary physical custody, as requested in his motion to modify

custody, because N.E. would perceive this change as a form of punishment and

loss of Mother’s love. [6] In January 2016, N.E. began exhibiting behavioral problems—N.E. pulled

down her pants to show her buttocks to some girls in her class; she wrote a note

asking a classmate if he wanted to have sex with her; she had begun fighting

classmates; and she threatened to kill herself if she had to go to Father’s house.

As a result of these behaviors, N.E. was placed on medication. N.E.’s behavior

improved drastically due to the medication, so much so that her teacher sent

home a letter in March detailing how much better N.E. was doing in class. See

id. at 259. [7] In April 2016, more than five years after filing a motion to modify custody, the

court held a hearing on Father’s motion. Over the course of the two-day

hearing, the court heard testimony from the GAL and N.E.’s therapist. Both

testified that Mother and Father needed help parenting. Mother had made

inappropriate comments to N.E. regarding these proceedings and led N.E. to

believe that Mother lost her job because she had to go to court to fight for

custody (Mother, in fact, had not lost her job). Father, on the other hand,

continued to hold grudges against Mother and refused to co-parent with her.

He videotaped every transfer of N.E., had not attended a school event since

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dropping N.E. off for her first day of first grade, and did not attend special

events in N.E.’s life, such as school functions or soccer and baseball games.

They also noted that N.E. had a strained relationship with Father’s wife. See id.

at 54 (stepmother called N.E. a “liar” to her face, is overwhelmed by N.E., and

needs support to help her parent); id. at 153 (stepmother told N.E. to “shut the

F up”); id. at 158 (stepmother needs parenting classes to address her problems

with N.E.). Following the hearing, the court received notice of allegations that

stepmother struck N.E. on April 25 and 26, just days after the hearing ended.

Appellant’s App. Vol. II p. 44. [8] Regarding physical custody, both the GAL and the therapist testified that N.E.

was struggling emotionally due to the constant fighting between Mother and

Father. They also stated that N.E. loves both of her parents, but N.E. is afraid

that if Father is given primary physical custody she will never see Mother again

and will perceive the change in custody as a form of punishment.

Nevertheless, both the GAL and the therapist recommended (contrary to the

GAL’s reports) that Father have primary physical custody of N.E. and that

Mother have supervised parenting time for a few hours each week. The custody

change was recommended as a way to force Mother to co-parent with Father.

Even with the recommended change, both the GAL and the therapist stated

that N.E. needed to maintain a relationship with Mother and continue to attend

school in Mother’s district. [9] After the hearing, the trial court issued findings of fact and conclusions. The

court ultimately ordered that Mother should retain primary physical custody of

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N.E. In reaching this conclusion, the court noted that the therapist’s

“recommendations are subject to question.” Id. at 38. The court questioned the

recommendations because: the therapist largely blamed Mother for N.E.’s

issues and ignored that “Father’s responsibility is also readily apparent”; the

therapist reached her “unusual” recommendation “not because she believes that

parenting time by Mother would be harmful to [N.E.], but because she believes

that is the only way Mother will become willing to co-parent [N.E.]”; and the

therapist accepted “at face value [N.E.’s] recanting of her molestation report,”

even though N.E. later recanted her recantation. Id. 37-38. The court also

“carefully scrutinized” the GAL’s recommendations because they were based

largely in part on the therapist’s recommendations and N.E.’s behavioral

problems at school. Id. at 38. The court concluded that no evidence was

presented that “N.E.’s problems at school are the result of being in Mother’s

primary physical custody. Nor was there any objective evidence that [N.E.’s]

problems would be solved by placing [her] in the primary physical custody of

Father.” Id. However, evidence was presented to show that there has been

“significant improvement now that [N.E.] is on medication.” Id. Based in part

on the allegations that stepmother had recently struck N.E., the court ordered

the GAL to investigate Father’s home and took away Father’s overnight

parenting time. Father’s parenting time was reduced to every other Saturday

and Sunday from 10:00 a.m. to 7:00 p.m. [10] Father appeals.

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Discussion and Decision [11] Father contends that the trial court erred when it denied his request to modify

primary physical custody of N.E. Custody modifications are reviewed “for

abuse of discretion with a preference for granting latitude and deference to our

trial judges in family law matters.” In re Paternity of J.G., 19 N.E.3d 278, 282

(Ind. Ct. App. 2014). When the trial court has entered findings of fact and

conclusions, “we first must determine whether the evidence supports the

findings and second, whether the findings support the judgment.” Albright v.

Bogue, 736 N.E.2d 782, 787 (Ind. Ct. App. 2000). “We consider the evidence

favorable to the judgment and all reasonable inferences following therefrom.”

Id. “[W]e are constrained to neither reweigh evidence nor judge the credibility

of witnesses.” Id. [12] The facts of this case sadly are the result of what happens when parents, after

splitting up, refuse to co-parent and focus on the best interests of the child and

instead continually place the child in the middle of their fighting. In these

situations, the trial court is left to sort through a complex history of parental

fights to determine what is in the best interests of the child. Here, the trial court

was faced with an extensive history of allegations by both parents against one

another claiming sexual and emotional abuse of N.E., and it ultimately

concluded that N.E.’s best interests were served with Mother retaining primary

physical custody. We find no reason to overturn the trial court’s decision.

Court of Appeals of Indiana | Memorandum Decision 71A03-1605-JP-1066 | March 3, 2017 Page 7 of 10 [13] Father makes several contentions to support his overall argument that the

court’s findings of fact do not support its judgment.1 First, he argues that the

court’s finding that “[t]he problems between the minor child and [stepmother]

are particularly serious,” Appellant’s App. Vol. II p. 33, is not supported by

evidence. But during the hearing, there was ample testimony that stepmother

struggled to parent N.E., including calling N.E. a “liar” to her face and having

parenting classes recommended to her in order to address her issues with N.E.

Tr. pp. 54, 158. Furthermore, after the hearing concluded, the court received

notice of allegations that stepmother had struck N.E. on two separate

occasions. Appellant’s App. Vol. II p. 44. We find that there is sufficient

evidence to support this finding. [14] Next, Father argues there is no evidence to support the trial court’s

characterization that his responsibility for N.E.’s behavioral issues is “readily

apparent.” Appellant’s Br. pp. 19-20. In his brief, Father acknowledges that

the court’s statement goes on to say, “Father has not attended a single activity

(including parent-teacher conferences) at [N.E.’s] school in the three years

[N.E.] has attended school. Father has attended not a single soccer game and

only one baseball game. Father has gone long stretches with no parenting time

1 One such contention asks this Court to review the record and enter additional findings of fact that support his modification request. This is another way of asking the Court to reweigh the evidence, which we will not do.

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at all.” Id.; Appellant’s App. p. 37. There is sufficient evidence to support the

court’s characterization. [15] Last, Father contends that the multiple negative findings of fact regarding

Mother’s parenting of N.E. are evidence that Mother should not have primary

physical custody of N.E. The court’s findings of fact included statements that

negatively reflected on both Mother’s and Father’s ability to parent. Trial

courts are put in a difficult position when hearing custody cases like this one,

where, instead of co-parenting for the sake of N.E., Mother and Father have

continually engaged in legal battle after legal battle and placed N.E. at the

center of their conflict. The trial court weighed the options before it and issued

a well-thought-out decision that focused on the best interests of N.E. The

judgment is based on those interests and the evidence presented. In its analysis

the court stated, “But it is far from clear that Father having custody of N.E.

would present a better situation. . . . [T]here was no evidence presented that

N.E.’s problems at school are the result of being in Mother’s [primary] physical

custody.” Id. at 37-38. Accordingly, the findings of fact are supported by

evidence in the record, and the judgment is supported by the findings of fact. [16] Mother, in her response to Father’s appeal, points out that we have the

discretion to remand this proceeding for an award of appellate attorney’s fees.

We decline her invitation to remand. [17] Affirmed.

Court of Appeals of Indiana | Memorandum Decision 71A03-1605-JP-1066 | March 3, 2017 Page 9 of 10 Bradford, J., and Brown, J., concur. Court of Appeals of Indiana | Memorandum Decision 71A03-1605-JP-1066 | March 3, 2017 Page 10 of 10