MEMORANDUM DECISION
Case Summary
[1] Alex R. Payne (“Father”) appeals the trial courts denial of his petition to modify parenting time. We affirm.
Facts and Procedural History
[2] Father and Brooke Schaefer (“Mother”) married in November 2018, and L.C.P. (“Child”) was born the next month. In June 2019, when Child was six months old, Father was arrested in Kentucky for twelve felony counts of possessing or viewing matter portraying a sexual performance by a minor, six felony counts of use of a minor in a sexual performance (victim under sixteen), and one felony count of use of a minor in a sexual performance (victim under eighteen). Father was incarcerated pending trial. For the first few months, Mother brought Child to jail once a week to visit him, as he insisted that he was innocent of the charges. But around October or November, when Child was not yet one year old, Mother stopped bringing her to visit Father because she no longer believed he was innocent. Child has not seen or communicated with Father since then.
[3] Mother filed for divorce in December 2019. In October 2020, while Fathers criminal case was still pending, the trial court entered an order dissolving the parties’ marriage. The court awarded sole legal and physical custody of Child to Mother. The court said Father was not entitled to “parenting time as long as he is incarcerated” because “[p]arenting time might impair [Childs] emotional health.” Appellants App. Vol. II p. 17. The court added that Father could “petition for parenting time upon his release from custody.” Id. Father did not appeal.
[4] In September 2022, Father was convicted and sentenced to seventy-seven years in prison.
1
In March 2023, Father petitioned to modify parenting time, seeking in-person or video visits, phone calls, and letters with Child. A hearing was held in July. Mother appeared by counsel, and Father, who represented himself, appeared remotely from prison in Kentucky. Mother testified that she didnt want Father to have any contact with Child—visits, phone calls, or letters—because it would be detrimental to Childs mental health. She explained that Child didnt know who Father was and that Father was serving a long prison sentence for crimes involving children. The court denied Fathers request, finding that “parenting time might impair [Childs] emotional health.” Id. at 12.
[5] Father, pro se, now appeals.
Discussion and Decision
[6] Father appeals the trial courts denial of his petition to modify parenting time.
2
Mother did not file an appellees brief. When an appellee does not respond to an appeal, we will not undertake the burden of developing an argument on their behalf. Trinity Homes, LLC v. Fang, 848 N.E.2d 1065, 1068 (Ind. 2006). Rather, we will reverse the trial courts judgment if the appellants brief presents a case of prima facie error. Id. In this context, “prima facie error” means error “at first sight, on first appearance, or on the face of it.” Id.
[7] “Indiana has long recognized that the rights of parents to visit their children is a precious privilege that should be enjoyed by noncustodial parents.” Duncan v. Duncan, 843 N.E.2d 966, 969 (Ind. Ct. App. 2006), trans. denied. As a result, a noncustodial parent “is entitled to reasonable parenting time rights unless the court finds, after a hearing, that parenting time by the noncustodial parent might endanger the childs physical health or significantly impair the childs emotional development.” Ind. Code § 31-17-4-1. Indiana Code section 31-17-4-2 addresses modification of parenting time, which is at issue here:
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 parents parenting time rights unless the court finds that the parenting time might endanger the childs physical health or significantly impair the childs emotional development.
Despite the statutes’ use of the word “might,” Indiana courts have interpreted them to require evidence that parenting time “would” endanger the childs physical health or significantly impair the childs emotional development. Perkinson v. Perkinson, 989 N.E.2d 758, 763 (Ind. 2013).
[8] Father acknowledges the trial court found that “parenting time might impair [Childs] emotional health,” as required by Section 31-17-4-2. He claims, however, that more findings are required. He cites Perkinson, where our Supreme Court held that a trial court must make “specific findings regarding its conclusion that parenting time would endanger the childs physical health or significantly impair the childs emotional development.” Id. at 765. Father says that because the court did not make specific findings here, its “unclear” why the court denied his petition to modify parenting time. Appellants Br. p. 11. He therefore asks us to remand the case for the court to make the “required findings.” Id. at 13.
[9] Father is correct that the trial court should have made specific findings supporting its conclusion. But we cant say that remand is necessary. Indiana Appellate Rule 66(A) provides that not every trial-court error is grounds for granting relief:
No error or defect in any ruling or order or in anything done or omitted by the trial court or by any of the parties is ground for granting relief or reversal on appeal where its probable impact, in light of all the evidence in the case, is sufficiently minor so as not to affect the substantial rights of the parties.
Here, it is clear why the trial court denied Fathers petition to modify parenting time. Father was arrested when Child was six months old and last saw or communicated with her in October or November 2019, when she was less than a year old. The trial court dissolved the parties’ marriage in October 2020, ruling that Father was not entitled to any parenting time. Father did not appeal that order. Had he done so, perhaps he would have been granted some relief, as at that point Mother bore the burden of proving that parenting time would significantly impair Childs emotional health. But instead, nearly three years passed with no communication between Father and Child. In March 2023, after Father had been sentenced to seventy-seven years in prison, he petitioned to modify parenting time. But by that time, it was too late. Mother testified that any communication between Father and Child would be detrimental to Childs emotional health as Child had “no idea” who he was. Tr. p. 33. In addition, Father is serving a seventy-seven-year sentence for crimes involving children and isnt eligible for parole until Child is an adult, at which point (as Mother explained) Child can make her own decision about Father. Given this evidence, the basis for the trial courts denial of Fathers petition to modify parenting time is clear, and there is no need to remand for more specific findings.
[10] Father says this case is like Rickman v. Rickman, 993 N.E.2d 1166 (Ind. Ct. App. 2013). There, a father who was serving a fifty-year sentence petitioned to modify parenting time, seeking communication with his child by phone and mail. The trial court did not hold a hearing and simply denied his request without making the required finding that parenting time would endanger the childs physical health or significantly impair the childs emotional development. This Court remanded the case. Here, unlike Rickman, a hearing was held, and the trial court found that “parenting time might impair [Childs] emotional health.” Although the trial court used the statutory term “might” instead of “would,” as just explained above the evidence supports that parenting time “would” impair Childs emotional health. Because Father has failed to establish prima facie error, we affirm the trial court.
[11] Affirmed.
FOOTNOTES
1
. According to the Kentucky Online Offender Lookup, Fathers release date is June 2089, though he is eligible for parole in June 2039.
2
. Father also argues the trial court erred in denying his “Motion for Acceleration of Trial Date and/or Appointment of Special Judge” because he was entitled to a change of judge under Indiana Trial Rule 76. But that motion didnt request a change of judge under Trial Rule 76. It made a passing reference to the possibility of a “Judge Pro Tempore” for scheduling reasons but did not cite Trial Rule 76. See Appellants App. Vol. II p. 22.
Vaidik, Judge.
May, J., and Kenworthy, J., concur.