Brian Daniel Roper v. Ashley Dawn Roper

FILED Nov 29 2023, 9:07 am

CLERK Indiana Supreme Court Court of Appeals and Tax Court

ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE Andrew P. Martin Larry D. Stassin Sachs & Hess, P.C. Tanzillo, Stassin & Babcock, P.C. Crown Point, Indiana Dyer, Indiana

IN THE COURT OF APPEALS OF INDIANA

Brian D. Roper, November 29, 2023 Appellant-Respondent, Court of Appeals Case No. 23A-DC-750 v. Appeal from the Lake Circuit Court Ashley D. Roper, n/k/a Ashley The Honorable Marissa D. Darland, McDermott, Judge Appellee-Petitioner. The Honorable Samantha Wuletich, Magistrate Trial Court Cause No. 45C01-2005-DC-265

Opinion by Judge Kenworthy Judges Bailey and Tavitas concur.

Kenworthy, Judge.

Case Summary [1] After Brian Roper (“Father”) and Ashley Darland (“Mother”) divorced, they

shared joint legal and physical custody of their minor child (“Child”) and

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exercised parenting time on a four days on/four days off schedule. In March

2023, the trial court granted Mother’s petition to modify custody and parenting

time and ordered Father’s parenting time to be supervised. Father appeals and

raises one issue: Did the trial court err by restricting his parenting time without

providing a sufficient written explanation to justify deviating from the Indiana

Parenting Time Guidelines (“Guidelines”)? We conclude the trial court’s order

makes the appropriate finding and sufficiently explains its parenting time order.

Therefore, we affirm.

Facts and Procedural History [2] Father and Mother were divorced in 2021 when Child was two years old. The

trial court found joint legal and physical custody was in Child’s best interest “at

this point in time while the child is not in school and based on the age of the

child and the distance between the parties.” Appellant’s App. Vol. 2 at 45. 1 The

court also continued the parenting time arrangement the parties had been

exercising, “with a four-on-four-off schedule, exchanging the child every fifth

day[.]” Id. [3] In early 2022, Mother petitioned for modification of custody and parenting

time, anticipating Child would attend preschool in the fall and the “current

parenting schedule will no longer be feasible.” Id. at 49. The parties agreed to

the appointment of a guardian ad litem (“GAL”) to “investigate and report to

1 While the dissolution was pending, Father had moved to Illinois.

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the court on the issues related to” the petition. Id. at 51. At some point after

this, Father came to believe that one of Mother’s relatives had touched Child

inappropriately. [4] A final hearing on Mother’s modification petition was set for March 13, 2023.

On March 3, Mother and the GAL jointly filed a verified petition for an

emergency order temporarily restricting Father’s parenting time because of

Father’s erratic behavior and the unilateral actions he took in relation to his

belief that Child had been sexually abused. 2 Father was due to exercise his

parenting time from March 6 to March 10. On March 5, the trial court ordered

that Child not be returned to Father’s care until after the final hearing. [5] Father, representing himself; the GAL; and Mother all testified at the hearing

on March 13. The GAL testified that Father’s allegations had been investigated

by three entities in two states and none had substantiated abuse. She expressed

“serious concerns” about Father’s mental state, Tr. Vol. 2 at 31, because he

“was unwilling to face the facts in front of him[,]” id. at 16. She believed he

presented a “credible threat” to Child’s emotional well-being because he has a

“one-track mind believing that this abuse occurred by this person, and

programming his daughter to think that, to think that she’s in danger, to think

that somebody hurt her.” Id. at 30–31. She recommended Mother have sole

2 In addition to Father making three reports of abuse and taking Child for a forensic interview and a medical evaluation without informing Mother, Father’s father conducted surveillance at Mother’s house to see if her relative was visiting, and Father “interrogat[ed]” Child in a videotaped conversation, asking leading questions repeatedly until Child gave him the answer he seemed to want. Tr. Vol. 2 at 31.

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legal and physical custody of Child and Father’s parenting time be supervised at

an appropriate facility. The GAL did not believe Father’s parents—with whom

he lived—would be appropriate supervisors because “they are fairly blind to

what’s happening.” Id. at 32. Father testified he “one hundred percent

believe[d]” Mother’s relative has touched Child but asserted he never brings it

up with Child and he is not a threat to her. Id. at 141. Father told the court he

had been seeing a psychotherapist for four or five months. [6] At the end of the hearing, the trial court explained to Father:

The question is, despite that you and your daughter who are so bonded and she loves you so much and you love her so much, clearly. The question is, does that love you have for her, that fatherly instinct to protect her, has that caused you to go down a path that is causing her harm. . . . Do I think you would do anything to intentionally harm your child? I do not. Do I think that you have found yourself in a rabbit hole and that you are so intent on proving a point and proving that [Mother’s relative] did something that you are willing to do, and interact with your child in a way that you might not even . . . realize is not healthy.

Id. at 168–69. [7] Ruling from the bench, the trial court granted Mother sole legal and primary

physical custody of Child and ordered Father’s parenting time to be once a

week, supervised at a facility. The trial court set a hearing in sixty days to

revisit the supervision requirement and made an extensive statement explaining

the court’s ruling and expectations for those sixty days:

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[B]ased on what I saw here today, [Father,] and based on some of the reports from [the GAL] and what’s been going on, I have deep concern for you[.] . . . [M]aybe we can get you into a better mental spot.

***

[I]f you want to go back to the arrangement that you have where you see [Child] at your parents’ house, . . . during [the next sixty days] I expect you to continue whatever treatment plan you’ve got going with your current doctor, I want you to keep doing that. . . . You have to follow all his recommendations, because . . . this person is the one who can best dictate what is going to make you healthiest and most stable. . . . I need you to show to me that you’re doing that, so that then I feel comfortable saying, okay, you know what, we did the supervised visits and Dad is towing the line, he’s doing – he came in on March 13th and he sat there and told me “I will do whatever it takes to have my kid and actually he did it.” The next time I see you, I would like to be able to say that.

Id. at 188–90. The trial court also prohibited contact between Child and

Mother’s relative and admonished Father not to undertake his own

investigation about whether that order was being followed because “[i]t’s not

healthy for you [or] for this family unit as you move forward.” Id. at 191. [8] Mother’s counsel reduced the ruling to a written order which the trial court

signed. The order states, in pertinent part:

1. There has been a change in circumstances that warrants modification of custody, and it is in the best interests of the minor child that Mother shall have full legal and physical

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custody. Unsupervised parenting time with Father would cause harm at this time.

***

3. Father’s parenting time shall be supervised at a facility for at least the next 60 days, one time per week, based upon the facility schedule and availability.

Appellant’s App. Vol. 2 at 29. Father now appeals.

The Trial Court’s Parenting Time Order is Sufficient [9] Although Father addresses many facets of the trial court proceedings in his

briefing, 3 he does not challenge the underlying merits of the trial court’s

parenting time decision; that is, he does not claim the evidence is insufficient to

support the trial court’s finding of endangerment. See Appellant’s Br. at 15.

Instead, Father specifically raises only one issue: “Did the Trial Court err

restricting Father’s parenting time without rendering a written explanation to

justify the deviation from the presumptive schedule set forth in the Indiana

3 For instance, although Father says he is not appealing the ex parte temporary emergency order—and acknowledges he cannot appeal that order as it is moot—Father addresses the circumstances surrounding this order at length and appears to claim its issuance was a due process violation. See Appellant’s Br. at 12; Reply Br. at 6–7. Father also claims, without independent evidence to support his claim, that the ex parte order shows he was denied a fair modification hearing because the trial court had pre-judged the outcome. See Appellant’s Br. at 12, 16–18. Nonetheless, we take Father at his word that this is “[i]ntended as [b]ackground [i]nformation” and do not separately address these or any other potential issues Father’s brief appears to raise. Reply Br. at 6.

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Parenting Time Guidelines?” Id. at 4. Accordingly, that is the only issue we

address. [10] In making and reviewing parenting time decisions, courts are required to “give

foremost consideration to the best interests of the child.” Perkinson v. Perkinson,

989 N.E.2d 758, 761 (Ind. 2013) (quoting Marlow v. Marlow, 702 N.E.2d 733,

735 (Ind. Ct. App. 1998), trans. denied). Parenting time decisions are reviewed

for an abuse of discretion, and because they typically turn on the facts, will be

set aside only when they are clearly erroneous. Id. [11] Indiana recognizes the right of noncustodial parents “to visit with their children

is a ‘sacred and precious privilege.’” Appolon v. Faught, 796 N.E.2d 297, 300

(Ind. Ct. App. 2003) (quoting McCauley v. McCauley, 678 N.E.2d 1290, 1292

(Ind. Ct. App. 1997), trans. denied). A child “has the correlative right to receive

parenting time from the noncustodial parent because it is presumed to be in the

child’s best interest.” Perkinson, 989 N.E.2d at 764; see Ind. Parenting Time

Guidelines § I(E)(5). To this end, the Guidelines “represent the minimum time

a parent should have to maintain frequent, meaningful, and continuing contact

with a child.” Ind. Parenting Time G., Preamble. “There is a presumption that

the [Guidelines] are applicable in all cases” and deviations from the Guidelines

that result in parenting time less than the minimum time set forth “must be

accompanied by a written explanation indicating why the deviation is necessary

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or appropriate in the case.” Ind. Parenting Time G., Preamble C.3. 4 Although

the court may modify a parenting time order whenever modification would

serve the best interests of the child,

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.

Ind. Code § 31-17-4-2 (2005). 5 [12] Not every deviation below the minimum parenting time recommended by the

Guidelines is a “restriction” of parenting time requiring a finding of

endangerment or impairment. We have previously recognized the distinction:

[T]here is a difference between a “restriction” of parenting time, which requires a finding of endangerment or impairment, and a “deviation” from the parenting time contemplated by the Guidelines, which requires only a written explanation from the trial court.

4 The Guidelines also state they “are not applicable to situations involving family violence, substance abuse, risk of flight with a child, or any other circumstances the court reasonably believes endanger the child’s physical health or safety, or significantly impair the child’s emotional development.” Id., Preamble C.1. Although the latter part of this provision tracks the language of Section 31-17-4-2, the Guidelines contain many provisions that are applicable to a parent exercising any parenting time. Therefore, the Guidelines as a whole are applicable whenever a parent has been awarded any parenting time, even if restricted under Section 31-17-4-2 to less than the minimum time set forth in the schedules. 5 Although the statute uses the word “might,” this language has been interpreted to mean that a court may not restrict parenting time unless that parenting time “would” endanger the child’s health or impair the child’s emotional development. See Stewart v. Stewart, 521 N.E.2d 956, 960 n.3 (Ind. Ct. App. 1988), trans. denied.

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Randolph v. Randolph, 210 N.E.3d 890, 898 (Ind. Ct. App. 2023). Parenting

time rights are “restricted” when they are “curtailed in an unreasonable

manner.” In re Paternity of J.K., 184 N.E.3d 658, 667 (Ind. Ct. App. 2022); see In

re Paternity of Snyder, 26 N.E.3d 996, 999 (Ind. Ct. App. 2015) (concluding a

finding of endangerment or impairment was required to restrict father from

telling child he is her biological father); cf. Randolph, 210 N.E.3d at 899

(concluding a statutory finding of endangerment or impairment was not

required because “[t]his is not a case where [f]ather’s parenting time was

eliminated, required to be supervised, or significantly deviated from the

Guidelines”). An order for supervision of parenting time is a restriction

required to be justified by a finding of endangerment or impairment. Hatmaker

v. Hatmaker, 998 N.E.2d 758, 761 (Ind. Ct. App. 2013). [13] If the trial court simply deviates from the amount of parenting time

recommended by the Guidelines, it must explain why deviation is appropriate.

If, however, the trial court restricts parenting time, it must also make the finding

required by Section 31-17-4-2. Generally, where a trial court restricts parenting

time pursuant to Section 31-17-4-2, the finding of endangerment or impairment

is the explanation for a deviation from the Guidelines. [14] To the extent Father argues the trial court’s finding was insufficient, we

disagree. Father argues the order should have read, “‘[u]nsupervised parenting

time with Father will cause harm at this time because . . .,’ followed by an

explanation of the conduct that the Court found would cause harm, in sufficient

detail wherein Father understood what he did wrong, so he may have the

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opportunity to correct that behavior.” Appellant’s Br. at 22. 6 Father compares

this case to Rickman v. Rickman, a case in which the trial court denied the

father’s petition to modify an order that had suspended his parenting time rights

without holding a hearing and without offering any explanation for the denial.

993 N.E.2d 1166 (Ind. Ct. App. 2013). 7 Because the trial court did not hold a

hearing and did not indicate whether the petition was denied pursuant to

Section 31-17-4-2 or whether the court considered the Guidelines, we reversed

and remanded for the trial court to provide a written explanation of its reasons

for denying the petition. The Rickman Court stated, “a factual basis and a

finding as to potential endangerment of [the child’s] physical health or safety or

significant impairment of his emotional development are necessary” for the

Appellate Court to appropriately review the trial court’s decision. Id. at 1169–

70. [15] Father highlights “a factual basis [is] necessary” language from Rickman in

support of his position that the trial court needed to say more here. See

Appellant’s Br. at 23. For several reasons, we conclude the trial court’s order

was sufficient.

6 Father essentially invites us to articulate a new standard that goes beyond the requirements of Section 31- 17-4-2 and the Guidelines to describe exactly how detailed the required findings must be. See Appellant’s Br. at 21–22. We decline to adopt Father’s proposed standard. One, that is not our role, and two, there is already a vehicle for more specific findings—a request pursuant to Trial Rule 52(A). 7 As a point of comparison, Father states, “Like in Rickman, the Trial Court stripped the Father of his parenting time without a hearing.” Appellant’s Br. at 23. This is a reference to the ex parte order, which Father expressly disclaims as an issue on appeal. See supra n.3. The trial court’s order on appeal was entered after a hearing.

Court of Appeals of Indiana | Opinion 23A-DC-750 | November 29, 2023 Page 10 of 12 [16] First, Section 31-17-4-2 requires the trial court to “find” the existence of a

certain circumstance; it does not require specific “written findings.” Compare

I.C. § 31-17-4-2 with I.C. § 31-34-19-10(a) (requiring the court in a child in need

of services case to include in the dispositional decree “written findings and

conclusions upon the record”) (emphasis added), and I.C. § 31-37-18-9(a)

(requiring written findings when issuing a dispositional decree in a juvenile

delinquency case). That is, the plain language of the statute does not require

elaboration. See Arms v. Arms, 803 N.E.2d 1201, 1212 (Ind. Ct. App. 2004)

(observing trial court’s decision to limit parenting time “because more extensive

visitation or parenting time . . . would be emotionally and psychologically

harmful to the child” satisfies the statutory requirement “so long as it is

supported by the evidence”). [17] Second, the written explanation required by the Guidelines must state the

reason for a deviation but “need not be as formal as Findings of Fact and

Conclusions of Law.” Ind. Parenting Time G., Preamble C.3, Cmt. [18] And third, the circumstances of Rickman are entirely different than this case. In

Rickman, there was neither a hearing—and thus no “factual basis”—nor a

finding of endangerment or impairment, whereas here, there was both a hearing

and a finding that unrestricted parenting time would cause harm to Child. In

J.M. v. N.M., we affirmed a parenting time restriction even without an express

finding of endangerment or impairment because evidence was presented at a

hearing that would have supported such a finding. 844 N.E.2d 590, 600 (Ind.

Ct. App. 2006), trans. denied. Again, here, we have both, and the evidence from

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the hearing provides ample support for the trial court’s order. We also note the

trial court gave a detailed explanation from the bench of its reasoning and

offered an avenue for Father to regain unrestricted parenting time in as little as

sixty days. [19] The trial court ordered supervised parenting time and found that unsupervised

parenting time with Father would cause harm to Child. This finding has

support in the record and explains the court’s order; this is all that is required.

Overall, we conclude the trial court met the requirements of the statute and

made a parenting time decision with the best interests of the child at the

forefront. The trial court’s order is not clearly erroneous.

Conclusion [20] The trial court’s finding that unsupervised parenting time would cause harm to

Child both justifies deviation from the Guidelines and serves as the required

finding for a restriction of parenting time. The judgment is affirmed. [21] Affirmed.

Bailey, J., and Tavitas, J., concur.

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