MEMORANDUM DECISION
[1] Donzell Eugene Brown (“Father”) appeals from the denial of his petition for modification of custody of L.J.R.B. (“Child”), the child he shares with Deneya Lanae Jeanne Putman (“Mother”). Father raises the following restated issues for our review:
I. Whether the trial court erred when it awarded Mother sole legal custody of Child; and
II. Whether the trial court erred when it denied Fathers request for additional parenting time.
[2] We affirm.
Facts and Procedural History
[3] Mother and Father are the parents of Child, born out of wedlock on June 15, 2017. The court confirmed the establishment of paternity on January 29, 2018, in its Order Confirming Paternity (“the Order”). The Order granted Mother temporary custody of Child and provided Father parenting time, but deferred ruling on the issue of joint legal custody. Prior to a hearing on the issue of custody, the parties entered into a stipulated agreement resolving all contested issues, which was approved by the court in November 2018, and provided in pertinent part, that:
1) ․ Fathers parenting time shall occur on every Wednesday from 7:00pm to 9:00pm and alternating weekends commencing on Friday at 7:00pm and concluding on Sunday at 7:00pm.
2) Father shall pick up [Child] to commence his parenting time and Mother shall pick up [Child] to commence her parenting time.
3) ․ the parties shall follow the Indiana Parenting Time Guidelines for holiday and special days based on the age of the child. Father shall have an increase in parenting time for his holiday parenting time in which any day shall be extended from the ten (10) hour period to a total of forty eight (48) hours.
4) ․ the parties shall share joint legal custody of [Child].
Appellants App. Vol 2 p. 19.
[4] On September 10, 2021, Father filed a “Verified Petition to Modify Custody Emergency,” alleging that there had been a substantial change in circumstances because Mother asked him to take Child for a couple of weeks while she sought treatment for her mental health. The court denied Fathers request for emergency relief and set a status hearing on the matter. At the status conference, the court scheduled an evidentiary hearing on Fathers request to modify custody which was continued several times. Mother again voluntarily checked herself into a hospital, informed Father, and offered Father the opportunity to care for Child for the time being. Father filed a “Request for Immediate Hearing on Issues,” alleging that Mother was in the hospital and that Child had been in his care. The court reviewed Fathers request and set a status hearing. At the status conference, the court denied Fathers request for an immediate hearing, modified the parenting time schedule for the summer, and ordered that Child only go to Father and no other third party “[i]n the event Mother becomes hospitalized, needs treatment or needs time away.” Id. An evidentiary hearing on Fathers request to modify custody was held on November 2, 2022, and January 30, 2023. Father, Fathers fiancée, Mother, and Tiffany Conley (“Conley”), a close friend of Mother, testified at the hearing.
[5] Father expressed concerns pertaining to Mothers mental health rendering her unable to care for Child and relying on other people to care for Child. There was evidence that Mother checked herself into a psychiatric ward for “depression and anxiety.” Tr. Vol. 2 pp. 51–52. Mother asked Father if he could care for Child, Father told her that “he would not be able to keep her overnight and that [Child] could stay with Thaias [Burris (“Burris”), Mothers ex-boyfriend and Father of Childs younger half-brother].” Id. at 73. While she was in the psychiatric ward, Father returned Child to Burris. After she was released, Mother was prescribed medication. Mother checked herself into the hospital a second time and called Father from the hospital to inform him and have him care for Child while she was in the hospital. When Mother was released, her prescribed medication remained the same. During her testimony, Mother revealed that she voluntarily sought inpatient mental health treatment on two separate occasions and offered Child to Father on each occasion. Mother has “had physical custody of [Child]” for the past seven months since her second release from the hospital. Id. at 187. Mother is currently in therapy and has a session “[o]nce a week at Oaklawn.” Id. at 186. Mother is also compliant with her medication and takes the medication as prescribed.
[6] There was evidence presented that Father and Mother had different ideas regarding the school Child should attend, and as time went on, it got “more and more difficult [for them] to come to an agreement.” Id. at 178. Father wants Child to change schools. Father and his fiancée have other children in addition to Child. Childs current school and their other childrens schools “timeframes wont meet up” when Fathers fiancée has to drop Child off at her current school. Id. at 106. The other children would be late and Fathers fiancé would be late to work every day if Child remains enrolled in her current school. Mother, on the other hand, wants Child to remain enrolled at her current school because Child has a consistent routine that involves Mother taking Child to school “every single morning and pick[ing] her up.” Id. at 181. When Mother is unable to pick Child up, Conley—who lives “[a] block away” from Childs school—can pick Child up. Id. at 24. Conley sometimes provides after school care to Child while Mother is at work.
[7] Father expressed concerns regarding Mother relying on Burris, Amy Burris—(“Amy”)
1
—, and Conley to care for Child which Mother has done since Child was an infant. See id. at 49, 72, 168. As to Burris, Father revealed that he began having a problem with Burris being around Child “when [Mother and Burris] were not together” anymore. Id. at 167. As to Amy, Counsel for Father asked the court to take judicial notice of Amys criminal charges for corrupt business influence and four felony theft counts in Cause No. 71D01-1902-F5-20, and possession of cocaine in Cause No.71D01-2204-F6-305. The former charges were filed before Child was born
2
and the latter charge was filed in April of 2022. Mother testified that she has “not left Child with [Amy]” since October 1, 2022. Id. at 93. Amy plead guilty to possession of cocaine on February 23, 2023.
3
As to Conley, Fathers concerns pertained to her use of drugs which Conley admitted she had done in the past. However, there was evidence presented that Conley has been sober for sixteen months and that she was “not an addict” anymore. Id. at 171.
[8] Father also expressed concerns regarding Childs maternal grandfather (“Maternal Grandfather”), who was recently released from prison in Iowa after serving twenty years for a rape conviction and had interacted with Child since “she was six months old[.]” Id. at 37. Mother had previously taken Child to visit Maternal Grandfather while he was in prison, and Child and Maternal Grandfather have “talked on the phone.” Id. at 37. When Maternal Grandfather was released on parole, Mother took Child to see him in Iowa. Since Maternal Grandfathers release, Mother has never left Child alone with him, never had an overnight with him and Child in the same home, and never received a court order prohibiting contact between Maternal Grandfather and Child. When asked if she agreed that she would not leave Child unsupervised around Maternal Grandfather, Mother answered in the affirmative and testified that she “will always be around[.]” Id. at 74.
[9] During the testimony of Mother and Father, there were numerous text messages between Father and Mother admitted into evidence. The text messages depict back and forth arguments between Mother and Father regarding matters pertaining to Child with neither parent agreeing with the other parents request. See Ex. Vol. 1 pp. 4–17.
[10] On April 30, 2023, the court issued its “Order on Petition to Modify Custody” (“Modification Order”) which denied Fathers request to modify custody, modified legal custody of Child to sole legal custody for Mother, and modified the Order by eliminating Fathers opportunity for additional parenting time. Appellants App. Vol. 2 p. 6. The Modification Order made the following pertinent findings:
․ Burris, played an active role in [Childs] life, as Mother indicated that she and ․ Burris were almost married ․ Burris continued to spend time with [Child] and would, at times, be called upon to provide care for [Child]. This was a point of contention with Father who felt that Mother would allow ․ Burris to watch [Child] rather than contacting Father. Mother admitted that there were times she asked ․ Burris to watch [Child] rather than Father. However, ․ Burris has a lengthy criminal history and is currently serving time in prison ․
․ [Amy], also had played a role in [Childs] life and would often provide care or take [Child] along with her younger [half-]brother when [Amy] was spending time with her grandson. This was another point of contention of Fathers as he held that Mother would call [Amy] to watch [Child] rather than him. There was evidence that [Amy] was also facing criminal charges. However, at the time of the evidentiary hearing ․ there was no update provided by the parties as to whether those matters had been resolved.
There was also testimony involving Mothers long-time friend, ․ Conley ․ who ․ provides the after school care for [Child] when it is required by Mother ․ Conley testified that she, at one time, used [drugs] but that she has been clean and sober for over a year. There was no evidence presented to refute that claim.
To a lesser extent in terms of regular interaction, there was evidence presented about the Maternal Grandfather. [Maternal Grandfather] had been convicted of rape and served approximately 20 years in prison in Iowa. Mother, without the consent of Father, took [Child] to visit [Maternal] [G]randfather when he was released from prison. The Court shares Fathers concerns that [Child] should not be alone with her [Maternal] [G]randfather under any circumstances. However, the Court believes that its Order that Mother fully supervise all interactions between [Child] and her [Maternal] [G]randfather will suffice in making certain that [Child] remains safe.
․
․ There was credible evidence that Mother has been dealing with mental health issues. Mother voluntarily checked herself into the hospital in September 2021 and June 2022 seeking help with what was diagnosed, according to Mother, as depression and anxiety. There was no evidence that Mothers mental health issues specifically impacted [Childs] health, well-being or safety. The unrefuted evidence is that Mother voluntarily checked herself in seeking help with these issues; has been following the advice of her treating physicians; is compliant as to her medications and is in therapy at Oaklawn Hospital ․
At the trial, much of the testimony about Mothers mental health issues centered on Father being upset that other people were contacted before him to watch [Child]. The Court understands this frustration, but it finds that Mother made the best efforts she could to contact Father while hospitalized to let him know that he should get [Child].
Id. at 7–8.
[11] As to the opportunity for additional parenting time, the court stated:
․ Given the nearly complete lack of ability ․ of the parents to communicate effectively with one another, this will just be another issue upon which Mother and Father will disagree and argue ․ The Court finds it appropriate that [Fathers] fianc[ée] be able to care for [Child] if/when ․ Father is on duty and ․ Mother shall not use the fact that Father is not present during overnights to demand that [Child] be with her for additional time ․ This Order also means that when [Child] is in Mothers care, she shall decide with whom [Child] will be cared for if she is unavailable. The Court hopes that Mother and Father reach a point where they can offer the other the chance for additional time with [Child]. However, at this time, the Court believes the distrust and anger and arguments between the parents are ultimately going to negatively impact [Child], especially as she gets older ․ Certainly if the parents reach a point where they believe that reinstating the chance for additional parenting time is a viable option, the Court would entertain a stipulation stating as much[.]
Id. at 9.
[12] Father filed a Motion to Correct Error. A hearing on the motion was held on July 28, 2023. By the passage of time, the motion was deemed denied as no order was issued. Father now appeals.
Discussion and Decision
[13] We initially note that Mother did not file an appellees brief. “When an appellee fails to submit a brief, we apply a less stringent standard of review with respect to the showing necessary to establish reversible error.” In re Paternity of S.C., 966 N.E.2d 143, 148 (Ind. Ct. App. 2012), affd on rehg, trans. denied. “In such cases, we may reverse if the appellant establishes prima facie error, which is an error at first sight, on first appearance, or on the face of it.” Id. “Moreover, we will not undertake the burden of developing legal arguments on the appellees behalf.” Id. The appellees failure to file a brief does not relieve us of our obligation to correctly apply the law to the facts in the record in order to determine whether reversal is required. Vandenburgh v. Vandenburgh, 916 N.E.2d 723, 725 (Ind. Ct. App. 2009).
[14] We review custody determinations for an abuse of discretion. McDaniel v. McDaniel, 150 N.E.3d 282, 288 (Ind. Ct. App. 2020), trans. denied. “There is a well-established preference in Indiana for granting significant latitude and deference to our trial judges in family law matters.” Id. (citing Steele-Giri v. Steele, 51 N.E.3d 119, 124 (Ind. 2016)). Appellate courts “are in a poor position to look at a cold transcript of the record, and conclude that the trial judge, who saw the witnesses, observed their demeanor, and scrutinized their testimony as it came from the witness stand, did not properly understand the significance of the evidence.” Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002). Therefore, on appeal we will not “reweigh the evidence nor reassess witness credibility, and the evidence should be viewed most favorably to the judgment.” Best v. Best, 941 N.E.2d 499, 502 (Ind. 2011). We will reverse the trial courts custody determination only if the decision is “clearly against the logic and effect of the facts and circumstances or the reasonable inferences drawn therefrom.” McDaniel, 150 N.E.3d at 288 (quoting In re Paternity of C.S., 964 N.E.2d 879, 883 (Ind. Ct. App. 2012), trans. denied). “[I]t is not enough that the evidence might support some other conclusion, but it must positively require the conclusion contended for by appellant before there is a basis for reversal.” Kirk, 770 N.E.2d at 307.
[15] Indiana Code Section 31-17-2-21 provides that a trial court may not modify an existing custody order unless (1) the modification is in the best interests of the child, and (2) there has been a substantial change in one or more statutory factors that are outlined in Indiana Code Section 31-17-2-8. Those factors are:
(1) The age and sex of the child.
(2) The wishes of the childs parent or parents.
(3) The wishes of the child, with more consideration given to the childs wishes if the child is at least fourteen (14) years of age.
(4) The interaction and interrelationship of the child with:
(A) the childs parent or parents;
(B) the childs sibling; and
(C) any other person who may significantly affect the childs best interests.
(5) The childs adjustment to the childs:
(A) home;
(B) school; and
(C) 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 ․
Ind. Code § 31-17-2-8.
[16] Here, it appears that neither party requested special findings under Indiana Trial Rule 52(A) and that the trial court entered its findings sua sponte. “As to the issues covered by the findings, we apply the two-tiered standard of whether the evidence supports the findings, and whether the findings support the judgment.” In re S.D., 2 N.E.3d 1283, 1287 (Ind. 2014). “We accept unchallenged findings as true.” Henderson v. Henderson, 139 N.E.3d 227, 232 (Ind. Ct. App. 2019). We review any remaining issues under the general judgment standard, where the judgment will be affirmed if it can be sustained on any legal theory consistent with the evidence. Id. “[W]e may look both to other findings and beyond the findings to the evidence of record to determine if the result is against the facts and circumstances before the court.” Stone v. Stone, 991 N.E.2d 992, 998 (Ind. Ct. App. 2013). Clear error occurs when the appellate courts review of the evidence most favorable to the trial courts judgment leaves us firmly convinced that a mistake has been made. Quinn v. Quinn, 62 N.E.3d 1212, 1220 (Ind. Ct. App. 2016). “However, we must give due regard to the trial courts ability to assess the credibility of witnesses and will not reweigh the evidence, and must consider only the evidence most favorable to the judgment along with all reasonable inferences drawn in favor of the judgment.” Stone, 991 N.E.2d at 999. Father claims that the trial courts order denying his petition to modify custody, ultimately awarding Mother sole legal custody, and denying his opportunity for additional parenting time is clearly erroneous. We address each contention in turn.
I. Legal Custody
[17] Father asks us to reverse the modification of legal custody and remand with instructions for the court to either grant him sole legal custody or reinstate joint legal custody and give him the right to choose Childs school. According to Father, the modification of legal custody was not in the best interests of Child because of Mothers mental health, Mothers violation of Fathers opportunity for additional parenting time, and Mothers poor judgment in permitting Burris, Amy, and Conley to watch Child. Fathers arguments are an invitation for us to reweigh evidence which we will not do.
[18] As to Mothers mental health, Father argues that “the court should not have ignored ․ [Mothers] mental health issues.” Appellants Br. p. 16. However, the court specifically addressed this issue in its Modification Order and found that Mothers mental health issues had not “specifically impacted [Childs] health, well-being[,] or safety.” Appellants App. Vol. 2 p. 8. Indeed, the record revealed that Mother voluntarily sought inpatient treatment for her mental health issues on two separate occasions (September 2021 and June 2022), and both times, Mother informed Father as soon as practicable and offered Child to Father while she received the proper treatment. At the evidentiary hearing, no evidence was presented demonstrating that Mothers mental health affected her parenting abilities. Instead, the evidence indicated—and the court acknowledged—that, due to her mental health, Mother participates in therapy once a week and that Mother is compliant with her prescribed medication. Moreover, Mother has cared for Child during her parenting time the entirety of the seven months between her second release and the evidentiary hearing. We cannot say the court erred when it considered Mothers mental health and found that Mothers mental health did not affect her abilities to care for Child, a determination well supported by the record.
[19] Father also claims that Mother interfered with his opportunity for additional parenting time while receiving inpatient mental health treatment. Father claims he should have had Child rather than Burris, Amy, or Conley. The trial court acknowledged Fathers concerns and frustration that other people were contacted before him to watch Child, but concluded that Mother had made the “best efforts she could” to contact Father given the circumstances. Id. The record supports the courts determination.
[20] As to the individuals Mother entrusts with Child, Father himself testified that he did not have a problem with Burris being around Child until Mother and Burris stopped being in a relationship, which is contrary to his contention on appeal that it was when he “learned of [Burriss] gun [possession] charges.” Appellants Br. p. 17. Conley has been clean and sober for over a year, and no evidence was presented to refute her testimony. At the time of the evidentiary hearing, Amy was facing criminal charges to which she entered a plea of guilty in February of 2023. However, Mother has not left Child under the care of Amy since October of 2022, almost five months prior to Amys guilty plea. There was also no evidence presented that these three individuals harmed Child in any way. In fact, the evidence revealed that these individuals have known and cared for Child since she was an infant. Although the court expressed concerns about Maternal Grandfather, who was recently released from prison having served twenty years for rape, Mother testified that she would not leave Child unsupervised with Maternal Grandfather and that she will always be around during their interactions. The court as fact-finder assessed Mothers testimony and determined that Mother would comply with its order mandating her to fully supervise all interactions between Child and Maternal Grandfather.
[21] Again, we reiterate that Fathers arguments are an invitation for us to reweigh the evidence which we will not do. The trial court considered each of Fathers concerns, but it came to a different conclusion than the one Father advocated. Based on the reasons outlined above, we conclude that the courts judgment was not clearly erroneous.
II. Denial of Additional Parenting Time
[22] Father next argues that the courts order denying his opportunity for additional parenting time is erroneous. Father claims that Mother, on several occasions, “fail[ed] to offer [Father] the opportunity for additional parenting time when she needed help with [Child which was in violation] of the prior order, as were the times” Mother had Burris, Conley, and Amy care for Child instead of Father. Appellants Br. pp. 17, 18. According to Father, he is fourth in line when Mother needs someone to care for Child which is contrary to Indiana Parenting Time Guideline I(C)(4) and its commentary. Id. at 20. Father further argues that the “only thing that gets in the way of [him] spending more time with [Child] is [Mothers] refusal to have [Child] attend [his preferred school].” Id. at 22. Father argues that Mother is frequently unable to pick Child up from her current school which leads to Mother using non-household members for pick-ups, denying Child from receiving “greater benefit from being with a parent rather than being with a childcare provider who is not a household member.” Id. at 21 (internal quotations omitted). We disagree.
[23] Indiana Parenting Time Section I(C)(4) provides, in pertinent part, that:
When it becomes necessary that a child be cared for by a person other than a parent or a responsible household family member, the parent needing the child care shall first offer the other parent the opportunity for additional parenting time, if providing the child care by the other parent is practical considering the time available and the distance between residences.
[24] The commentary to the subsection explains:
The rule providing for opportunities for additional parenting time promotes the concept that a child receives greater benefit from being with a parent rather than a child care provider. It is also intended to be practical. When a parents work schedule or other regular recurring activities require hiring a child care provider, the other parent should be given the opportunity to provide the care. Distance, transportation or time may make the rule impractical. Parents should agree on the amount of child care time and the circumstances that require the offer be made.
[25] The Guidelines imposition of a preference for parental childcare is founded upon the premise that it is usually in a childs best interest to have frequent, meaningful, and continued contact with each parent. Shelton v. Shelton, 835 N.E.2d 513, 517–18 (Ind. Ct. App. 2005), summarily affd, 840 N.E.2d 835 (Ind. 2006). It is presumed that the Guidelines apply in all cases which they cover; however, a trial court may, within its discretion, determine that a deviation is necessary or appropriate. Id. Any such deviation must be accompanied by a written explanation. Id.
[26] Here, the court deviated from the additional parenting time guidelines, emphasizing Father and Mothers inability to effectively communicate with one another when it comes to matters involving Child and that it was likely that modifying the order as to the opportunity for additional parenting time would “just be another issue upon which Mother and Father ․ disagree and argue.” Appellants App. Vol. 2 p. 9. The record reveals that Father and Mother consistently argued about matters involving Child such as where Child attends school and the people with whom the other parent entrusts Child. The court deemed it appropriate that Fathers fiancée care for Child when Child is in Fathers care. The court also determined that Mother shall decide whom to entrust Child with when Child is in Mothers care if Mother is unavailable. In light of evidence supporting Father and Mothers inability to communicate and coparent, the court did not abuse its discretion when it denied Fathers ability to exercise additional parenting time. See B.L. v. J.S., 59 N.E.3d 253, 264 (Ind. Ct. App. 2016) (concluding that the trial court did not abuse its discretion when it denied Fathers request for additional parenting time because it determined that it was in the Childs best interest to attend the afterschool program, where Child would exercise, interact, and play with other children, and get homework done, instead of spending every available moment with Father.)
Conclusion
[27] Based on the foregoing, we conclude that the trial court did not abuse its discretion when it awarded Mother sole legal custody of Child and denied Father the opportunity for additional parenting time.
[28] Affirmed.
FOOTNOTES
1
. Amy is Burriss mother.
2
. See mycase.IN.gov, State v. Burris, Cause No. 71D01-1902-F5-20, https://public.courts.in.gov/mycase/#/vw/Search (last accessed June 27, 2024).
3
. See mycase.IN.gov, State v. Burris, Cause No. 71D01-2204-F6-305, https://public.courts.in.gov/mycase/#/vw/Search (last accessed June 27, 2024).
Foley, Judge.
Riley, J., and Brown, J., concur.