D.P. v. A.L. (mem. dec.)

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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jul 05 2017, 8:39 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 Anthony J. Saunders New Castle, Indiana

IN THE COURT OF APPEALS OF INDIANA

D.P., July 5, 2017 Appellant-Respondent, Court of Appeals Case No. 33A04-1702-DR-323 v. Appeal from the Henry Circuit Court A.L., The Honorable Kit C. Dean Crane, Appellee-Petitioner Judge Trial Court Cause No. 33C02-1001-DR-14

Baker, Judge. Court of Appeals of Indiana | Memorandum Decision 33A04-1702-DR-323 | July 5, 2017 Page 1 of 4 [1] In April 2010, the marriage of D.P. (Father) and A.L. (Mother) was dissolved.

One child, Da.P. (Child), was born of the marriage in October 2006. Pursuant

to the dissolution decree, Mother was Child’s primary legal and physical

custodian, and Father had parenting time with Child every weekend. In April

2011, Father pleaded guilty to Class D felony sexual battery 1 and is required to

the parties’ parenting time arrangement. Specifically, she asked that Father’s

parenting time be supervised by another adult. At the September 7, 2016,

hearing on Mother’s motion, Mother testified that the two primary reasons

supporting her modification petition are Father’s 2011 sexual battery conviction

and an increase in negative behaviors from Child following the weekends he

spends with Father. She testified that, after returning from parenting time with

Father, Child frequently hits himself and makes statements about wishing

violence on Father. Tr. p. 8. On one occasion, Child had to be admitted for

two weeks at an inpatient mental health facility. Id. [3] Following the hearing, the trial court granted Mother’s motion, finding that

“there has been a continuing and substantial change in circumstances” since the

dissolution decree was issued. Appealed Order p. 1. The trial court focused on

Father’s 2011 conviction and the requirement that he register as a sex offender

1 The victim was a 16-year-old individual who is unrelated to this appeal.

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as the changed circumstances. The trial court then found that “[i]t is in the best

interest of the minor child that [Father’s] overnight parenting time be suspended

and [Father] shall have supervised visitation pursuant to the Indiana Parenting

Time Guidelines. [Father’s] supervised visitation shall occur by an adult agreed

upon by both parties until further Order of this Court.” Id. Father now

appeals. [4] A decision about parenting time requires us to give foremost consideration to

the best interests of the child. Meisberger v. Bishop, 15 N.E.3d 653, 656 (Ind. Ct.

App. 2014). In conducting our review, we will neither reweigh evidence nor

reassess witness credibility. Id. We will reverse only where the trial court’s

decision is clearly against the logic and effect of the facts and circumstances

before it or where the trial court errs as a matter of law. Id. [5] Indiana Code section 31-17-4-2 provides as follows:

The court may modify an order granting or denying parenting time rights whenever modification would serve the best interests of the child. However, the court shall not restrict a parent’s parenting time rights unless the court finds that the parenting time might endanger the child’s physical health or significantly impair the child’s emotional development.

We have found in the past that, in ruling on a motion to modify parenting time,

the trial court must consider and make a finding as to potential endangerment

of the child’s physical health or significant impairment of the child’s emotional

development. Meisberger, 15 N.E.3d at 659-60 (finding that trial court could not

restrict incarcerated father’s parenting time with child absent specific findings Court of Appeals of Indiana | Memorandum Decision 33A04-1702-DR-323 | July 5, 2017 Page 3 of 4

regarding endangerment of physical health or significant impairment of

emotional development); Rickman v. Rickman, 993 N.E.2d 1166, 1169 (Ind. Ct.

App. 2013) (finding that mere fact that father was incarcerated on child

molestation charges was insufficient to deny his petition for parenting time

modification; further findings and factual basis were needed). [6] Here, as in Meisberger and Rickman, the trial court neglected to include a

sufficient factual basis addressing the factors set forth in Indiana Code section

31-17-4-2.2 While the trial court did reach a conclusion regarding the best

interests of the child, it did not make a finding regarding endangerment of

Child’s physical health or significant impairment of Child’s emotional

development. Therefore, we remand for the trial court to determine and make

one or more findings on these factors or, in its discretion, to conduct other

proceedings consistent with this opinion. [7] The judgment of the trial court is remanded with instructions.

Barnes, J., and Crone, J., concur.

2 We also note that the trial court found a continuing and substantial change in circumstances. To modify parenting time, however, the trial court need not make such a finding, which is required only for modification of custody. See Ind. Code § 31-17-2-21 (requiring the trial court to find a substantial change in statutory factors to modify custody). Instead, the trial court should focus on Indiana Code section 31-17-4-2, which governs parenting time modification.

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