In re the Paternity of K.W. (Minor Child): K.P. v. W.W. (mem. dec.)

MEMORANDUM DECISION FILED May 03 2018, 5:53 am Pursuant to Ind. Appellate Rule 65(D), CLERK this Memorandum Decision shall not be Indiana Supreme Court Court of Appeals regarded as precedent or cited before any and Tax Court

court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE Holly J. Wanzer Amy O. Carson Nicole Makris MASSILLAMANY JETER & CARSON WANZER EDWARDS, PC LLP Indianapolis, Indiana Fishers, Indiana

IN THE COURT OF APPEALS OF INDIANA

In re the Paternity of K.W. May 3, 2018 (Minor Child): Court of Appeals Case No. 49A02-1711-JP-2639 Appeal from the Marion Superior K.P., Court Appellant-Respondent, The Honorable James B. Osborn, Judge v. Trial Court Cause No. 49D14-1701-JP-1552 W.W., Appellee-Petitioner.

Bailey, Judge. Court of Appeals of Indiana | Memorandum Decision 49A02-1711-JP-2639 | May 3, 2018 Page 1 of 10

Case Summary [1] K.P. (“Mother”) appeals an order placing eight-year-old K.W. in the physical

custody of W.W. (“Father”). We address a single, consolidated issue for

review: whether the custody order was entered without affording Mother due

process. We reverse and remand for further proceedings.

Facts and Procedural History [2] On October 14, 2009, K.W. was born out-of-wedlock to Mother and Father.

Mother and Father had long been involved in an on-and-off romantic

relationship. Their eldest child, W.T.W., was ten years old when K.W. was

born.1 Over the years, Father and Mother maintained separate homes in

Indianapolis, and their romantic relationship continued to be on-and-off.

Father sometimes had an access code or key to Mother’s residence and stayed

there. Father also purchased a residence in Ohio, where he has full-time

employment. [3] When W.T.W. was a high school sophomore, he decided that he wanted to

reside exclusively with Father in Ohio. Father obtained custody of W.T.W.

through legal proceedings in Ohio. In 2013 or 2014, “when W.T.W. came to

1 W.T.W. is now emancipated and living in Ohio. K.W. and W.T.W. also have a half-sibling who is a few years older than K.W. and is Father’s child from another relationship.

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live with Father,” Mother’s and Father’s romantic relationship ended. (Tr. Vol.

I, pg. 114.) K.W. remained with Mother. [4] On January 10, 2017, Father filed a Verified Emergency Petition Regarding

Denial of Parenting Time and Motion to Establish Custody, Parenting Time

and Child Support. Father sought sole physical custody of K.W. and planned

to move her to Ohio and enroll her in a private parochial school there. The

parties reached an interim agreement permitting Father to exercise significant,

almost half-time, overnights with K.W. [5] The trial court conducted hearings on October 10 and October 20, 2017. The

parties stipulated to the amount of time to be allotted for the presentation of

evidence. Three minutes before his time expired, Father was called as a

rebuttal witness and proffered Exhibit 26 – consisting of 202 pages purportedly

depicting text messages between the parties. The trial court excluded this

proffered exhibit for lack of foundation. However, after the hearing was

adjourned on October 20, 2017, the trial court entered an Admission Order of

the same date. The order reversed the trial court’s exclusion of Father’s Exhibit

26. [6] Four days later, on October 24, 2017, the trial court issued an order providing

in relevant part:

It is in the best interests of the Child that Father and Mother share joint legal custody of the Child with Father exercising primary physical custody. If there is an impasse on a decision, Father shall make the final determination.

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(Appealed Order at 1.) The trial court, which had indicated by its commentary

and exclusion of certain evidence that it was making an initial custody

determination based only upon best interests of the child, did not enter findings

related to a change in circumstances to support custody modification. Mother

now appeals.

Discussion and Decision [7] Mother alleges that she was denied due process. She argues that the trial court

failed to enter adequate findings based upon the appropriate legal standard for

making the custody determination and that the trial court’s sua sponte post-trial

admission of evidence deprived her of any opportunity to challenge the

belatedly-admitted evidence. [8] Procedural due process must be provided to protect the substantive rights of the

parties in child custody proceedings, and an opportunity to be heard on veracity

and probity of that considered by the trial court is essential before a parent can

be deprived of custody. Jendreas v. Jendreas, 664 N.E.2d 367, 370 (Ind. Ct. App.

1996) (citing Van Etta v. Van Etta, 583 N.E.2d 767, 768 (Ind. Ct. App. 1991),

trans. denied. Also, the relevant statutes contemplate that a parent will not be

deprived of custody without an evidentiary hearing to determine whether there

has been a substantial change in one or more of the factors relevant to the

child’s best interests and whether modification would in fact be in the child’s

best interests. In re Paternity of R.A.F., 766 N.E.2d 718, 726 (Ind. Ct. App.

2002).

Court of Appeals of Indiana | Memorandum Decision 49A02-1711-JP-2639 | May 3, 2018 Page 4 of 10 [9] Indiana Code Section 31-14-13-2 provides that the court shall make an initial

custody determination in a paternity case by looking at all relevant factors,

including the factors listed in subsections (1) through (8) of the statute, to

determine the best interests of the child. Those factors are:

(1) The age and sex of the child.

(2) The wishes of the child’s parents.

(3) The wishes of the child, with more consideration given to the child’s wishes if the child is at least fourteen (14) years of age.

(4) The interaction and interrelationship of the child with:

(A) the child’s parents;

(B) the child’s siblings; and

(C) any other person who may significantly affect the child’s best interest.

(5) The child’s adjustment to home, school and community.

(6) The mental and physical health of all individuals involved.

(7) Evidence of a pattern of domestic or family violence by either parent.

(8) Evidence that the child has been cared for by a de facto custodian[.]

Court of Appeals of Indiana | Memorandum Decision 49A02-1711-JP-2639 | May 3, 2018 Page 5 of 10 [10] Indiana Code Section 31-14-13-6 prescribes a stricter standard for modification

of a child custody order in a paternity action. A custody order may be modified

only if it is in the best interests of the child and there is a “substantial change in

one (1) or more of the factors that the court may consider under [Ind. Code §

31-14-13-2 or 31-14-13-2.5]…” Ind. Code § 31-14-13-6. [11] In an initial custody determination, there is no presumption in favor of either

parent and the trial court’s determination is to be based upon the best interests

of the child. See in re Paternity of Winkler, 725 N.E.2d 124, 127 (Ind. Ct. App.

2000). However, to obtain a modification of custody, the burden is on the

petitioner to demonstrate a substantial change in circumstances. Id. The

stricter rationale is required because permanence and stability are deemed

crucial for the wellbeing and happiness of the child. Id. [12] In determining whether an initial custody determination standard or

modification standard is appropriate, we look to the unique facts of the case.

Id. In Winkler, the father acquiesced to Mother having custody of the child for

ten years and the mother had custody by operation of law because the child was

born out of wedlock. See id. (citing Ind. Code § 31-14-13-1, which provides that

“[a] biological mother of a child born out of wedlock has sole legal custody of

the child, … unless a statute or court order provides otherwise[.]”). In those

circumstances, we found the more stringent standard for modification of

custody to be applicable despite the lack of an initial court determination. See

id. at 128.

Court of Appeals of Indiana | Memorandum Decision 49A02-1711-JP-2639 | May 3, 2018 Page 6 of 10 [13] Here, there has not been a prior court order concerning K.W.’s custody.

Mother had custody of K.W. by operation of law and Father acquiesced to

Mother’s physical custody of K.W. for seven years before he filed his petition.

In Winkler, we recognized that “the same concerns about stability and

continuity” arose in the context of a long-standing custody arrangement even

absent an “initial custody determination” by a court. Id. The Winkler Court

held: “after a long acquiescence by a father in a paternity context, a trial court

may not send a child to live with the other parent unless there is a showing

pursuant to Ind. Code § 31-14-13-6.” Id. Although we recognize that Father’s

acquiescence here is for a lesser term of years than was the father’s in Winkler, it

is nonetheless a long acquiescence and Mother was deprived of custody she had

long exercised. The trial court was obliged to go beyond a best interests

inquiry, i.e., the court should have allowed relevant evidence to support

consideration of whether there was a substantial change in one or more of the

statutory factors. [14] Also, Mother claims that she was afforded no meaningful opportunity to be

heard when the trial court made a sua sponte post-hearing decision to admit

Father’s Exhibit 26. On the final hearing day, Father brought to court a

compilation of 202 pages purportedly depicting text messages between the

parents. During cross-examination of Mother, Father’s counsel asked Mother

to recite her cellular telephone number and Mother did so. Father’s counsel

sought to admit the exhibit during Mother’s testimony but, after objection from

Mother’s counsel, indicated that the exhibit would be proffered during Father’s

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rebuttal testimony. At some point, the hearing was adjourned for five minutes

to permit Mother to review the 202 pages. [15] Father was called as a rebuttal witness and the trial court cautioned that he had

three minutes remaining to present evidence. Father testified that he had

printed out texts that had been “on his current phone” using an application

called WhatsApp. (Tr. Vol. II, pg. 77.) Father was unable to provide detail

about the application; he did not testify to specific dates covered by Exhibit 26;

and he did not establish the cellular number used by himself or Mother during

the dates appearing on Exhibit 26. The trial court excluded the proffered

exhibit because of lack of foundation to support its admission. [16] The trial court’s post-hearing order indicated that, upon review of the authority

of In re Paternity of B.B., 1 N.E.3d 151 (Ind. Ct. App. 2013), the trial court had

found Exhibit 26 to be admissible. There, a panel of this Court discussed

admissibility of transcribed text messages between parents:

When the substance of a text message is offered for an evidentiary purpose, the text message must be separately authenticated pursuant to Ind. Evidence Rule 901(a). Hape v. State, 903 N.E.2d 977, 990 (Ind. Ct. App. 2009), trans. denied. Rule 901 provides that “[t]he requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Absolute proof of authenticity is not required. Fry v. State, 885 N.E.2d 742, 748 (Ind. Ct. App. 2008), trans. denied. When evidence establishes a reasonable probability that an item is what it is claimed to be, the item is admissible. Thomas v. State, 734 N.E.2d 572, 573 (Ind. 2000). Court of Appeals of Indiana | Memorandum Decision 49A02-1711-JP-2639 | May 3, 2018 Page 8 of 10

In re B.B., 1 N.E.3d at 156. The father in that case had acknowledged that the

telephone numbers were his and the mother’s; the mother had described the

evidentiary exhibit as consisting of texts sent between her and the father. See id.

at 156-58. We found that there was sufficient evidence to support a finding that

the text messages were what the mother claimed them to be, and that a

sufficient foundation had been laid for their admission. Id. at 159.

Accordingly, we found no abuse of discretion in the trial court’s decision to

admit them. Id. [17] Be that as it may, we are not reviewing for an abuse of discretion the trial

court’s decision to admit evidence over one party’s objection at a hearing.

Rather, we are confronted with a post-hearing reversal of a decision on

admissibility which, by its procedural irregularity and lack of specificity,2 denied

Mother the opportunity to be heard. We agree with Mother that she was not

afforded procedural due process in this regard. See Paternity of R.A.F., 766

N.E.2d at 726 (“An opportunity to be heard is essential before a parent can be

deprived of custody.”).

2 It is not apparent whether the trial court found all or less than all the texts to be relevant or to what extent the trial court relied upon the substance of any of the texts in making its custody determination.

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Conclusion [18] The trial court’s blanket exclusion of evidence of a substantial change in

circumstances and post-hearing reversal of an evidentiary ruling deprived

Mother of a meaningful opportunity to be heard. [19] Reversed and remanded for further proceedings consistent with this opinion.

Crone, J., and Brown, J., concur.

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