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Ashley Eilene Franklin, Appellant-Petitioner v. II (2024)

Court of Appeals of Indiana.2024-04-22No. Court of Appeals Case No. 23A-JP-2416

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Opinion

MEMORANDUM DECISION

Weissmann, Judge.

[1] During a paternity action over B.F. (Child), Ashley Franklin (Mother) failed to complete court ordered drug tests and a psychological assessment. In response, the trial court granted Brent Fifer (Father) sole custody and restricted Mother to supervised visits with Child. Mother challenges the trial courts order that she only be allowed supervised visits with Child. Finding no abuse of the trial courts discretion, we affirm.

Facts

[2] In January 2023, Father petitioned to establish paternity rights to Child. Within a month, on February 16, the trial court ordered, temporarily, joint legal custody for Mother and Father and primary physical custody for Mother. The trial court also ordered each party to undergo drug tests. Mother did not comply with this requirement and was eventually found to be in contempt. In response, the trial court ordered Mother to complete a psychological assessment by a psychologist recommended by the assigned guardian ad litem (GAL).

[3] Mother failed to complete the psychological assessment. After a hearing to discuss the GALs report that summer, the trial court granted Father primary physical and legal custody over Child and restricted Mother to supervised visits only. In explaining its reasoning, the trial court noted:

Mother has failed to follow the court order of February 16, 2023, failed to timely attain [a] hair follicle drug screen, failed to be assessed by [the psychologist], continues to have erratic behaviors, appears to be self medicating with illegal drugs, [and the] court determines child is not safe in her care.

App. Vol. II, p. 47.

[4] That fall, Mother moved for the trial court to reconsider its order and suspend the requirement that she complete a psychological evaluation and only have supervised visits with Child. Id. at 61. The trial court quickly reaffirmed the order “until the Court receives a competent [psychological] assessment that the Court has approved for the Mother.” Id. at 63. Mother appealed.

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Discussion and Decision

[5] “ ‘Indiana has long recognized that the right of parents to visit their children is a precious privilege that should be enjoyed by noncustodial parents,’ and thus a noncustodial parent is ‘generally entitled to reasonable visitation rights.’ ” Perkinson v. Perkinson, 989 N.E.2d 758, 762 (Ind. 2013) (quoting Duncan v. Duncan, 843 N.E.2d 966, 969 (Ind. Ct. App. 2006). By statute,

A parent not granted custody of the child 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.

Indiana Code § 31–17–4–1(a). On top of these requirements, the trial courts order granting or denying parenting time rights may be modified only when “modification would serve the best interests of the child.” Ind. Code § 31-17-4-2.

[6] Thus, review of a visitation order requires appellate courts to “give foremost consideration to the best interests of the child.” Hatmaker v. Hatmaker, 998 N.E.2d 758, 760 (Ind. Ct. App. 2013) (quoting Marlow v. Marlow, 702 N.E.2d 733, 735 (Ind.Ct.App.1998)). Parenting time decisions are reviewed for an abuse of discretion. Id. “A trial court abuses its discretion when its decision is clearly against the logic and effect of the facts and circumstances before the court or if the court has misinterpreted the law.” Id.

[7] The trial court did not abuse its discretion here. First, we start with the trial courts explicit finding that “child [is] not safe in [Mothers] care.” Appellants App. Vol. II p. 47. Mothers argument that no evidence supports this conclusion simply ignores the record. To wit, Mother disobeyed the trial courts ordered drug screen and refused to complete the ordered psychological assessment. And from the GALs report to the trial court, “Mother continues to behave erratically and her communications with Father border on harassment.” Appellees App. Vol. II, p. 3 (cleaned up). The GAL also reported that Mother appeared to be self-medicating with illegal drugs and Mother did not seem to understand “the reality of her situation.” Id. at 3-4. In short, the GAL expressed that she was “very concerned about [Mothers] mental health.” Id. The trial courts finding is sufficient under Indiana Code § 31-17-4-1(a).

[8] Accordingly, we affirm the trial courts order requiring Mother to have supervised visits with Child pending her required psychological assessment and any resulting orders from the trial court.

FOOTNOTES

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.   As a preliminary matter, we reject Fathers threshold argument that Mothers appeal is not based on a final order and thus not properly before this Court. See Ind. Appellate Rule 2(H)(1).

Memorandum Decision by Judge Weissmann

Judges Mathias and Tavitas concur.

Mathias, J., and Tavitas, J., concur.