Tuesday, June 25, 2019

Motion to Restrict, Terminate or have Supervised Parenting Time - Indiana Code 31-17-4-1(a)

In my last posting I elucidated formulating a response to a report of child abuse or neglect. Like there, when confronted with a Motion to Restrict, Terminate or have Supervised Parenting Time a response should be formulated while in a calm, rational state of mind.

Step one is to always stay calm. Easier said than done you may think. But think of it this way. Your child has not just fallen into a river. There is no need to activate your limbic system, increase your heart rate, cut off blood to the intestines and rush to aid your child. When you get the Motion the court is a stop light and you are sitting there in neutral waiting. It’s going to be a long light. You are wasting energy and will burn yourself out if you sit there with the pedal to the floor at 6000 RPMs. Instead, you want to shift your response from originating in the Amygdala [emotional] to the Cerebral Cortex [logical thinking].

Once you have settled yourself somewhere on the mental spectrum between pensive thought and nirvana, review the allegations. Next review the relevant statutory provisions. The court is statutorily bound when considering restricting parenting time. Also, familiarize yourself with the Indiana Trial Rules. Particularly TR52(a) - Findings and Conclusions.[fn1]

In the case at hand the attorney for Mother filed the Motion concurrent with the ongoing CPS investigation. In Mother’s purported June 20, 2019 motion to cease parenting time or for supervised parenting time, she alleges, among other things, that father failed to cooperate with the CPS investigation. She bases her motion upon allegations made to CPS and that “Your children are afraid of you and do not want to go to your house.”

Mother fails to grasp the meaning of the term “cooperate” though. Father voluntarily met with the CPS caseworker assigned to investigate the malicious allegations. However, he did first question the caseworker as to who made the report and what could be done against that person for making a false report. The caseworker told Father that she could not disclose who made the report but attorney Niehaus later confirmed that it was the children’s pediatrician Dr. Meredith Potrzebowski, a member of Community Physicians Network. It was her practice to which Father made a complaint to the Medical Licensing Board of Indiana last year for failing to comply with statutory requirements relating to the children’s medical records.

On Friday June 21, 2019 Father spoke with Shannon Pickering at DCS who is the supervisor of Channing Reed, the case worker who did the investigation. Pickering stated to Father that this case will be closed on Wednesday June 26, 2019 as “unsubstantiated.”

Mother’s Motion was based upon two prongs. The first, she alleges that the children do not want to go to Father’s house. The Indiana Parenting Time Guidelines [IPTG] at Section I(C)(1) states that the children should not be allowed to decide parenting time. This is because it can put them in the middle of conflict. The Commentary to this section specifically states that parenting time may not be justifiably denied because, “The child unjustifiably hesitates or refuses to go.” Mother has unilaterally terminated Father’s parenting time and also insists that Father enroll in a parenting class before parenting time may resume. The same Commentary additionally provides that parenting time may not be justifiably denied because, “The other parent failed to meet preconditions established by the custodial parent.”

Her second basis for her Motion is the unsubstantiated abuse and neglect allegations apparently made by the children’s pediatrician in retaliation for Father’s complaint against her last year. These unsubstantiated allegations do not rise to the level of that which would clearly show that Father’s continued parenting time would endanger the children. That is the standard for restricting parenting time. I will repeat it - would clearly show that Father’s continued parenting time would endanger the children.

Restriction of parenting time is governed by Indiana Code 31-17-4-1(a), which provides: 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 child’s physical health or significantly impair the child’s emotional development. Even though the statute uses the word “might,” the Indiana Court of Appeals has previously interpreted the statute’s language to mean that a trial court may not restrict parenting time unless that parenting time “would” endanger the child’s physical health or emotional development. D.B. v. M.B.V., 913 N.E.2d 1271, 1274 (Ind. Ct. App. 2009).

Note that, under this statutory framework, parenting time may not be restricted until “after a hearing”.

In making a ruling on this matter a court must make a specific finding. That is, a general decision finding in favour of the Movant [person seeking to restrict parenting time] is not acceptable. "By 'its plain language,' [the statute] requires a court to make a specific finding 'of physical endangerment or emotional impairment prior to placing a restriction on the noncustodial parent's visitation.'" Farrell v. Littell, 790 N.E.2d 612, 616 (Ind. Ct. App. 2003) (interpreting Ind. Code § 31-14-14-1) (quoting In re Paternity of V.A.M.C., 768 N.E.2d 990, 1001 (Ind. Ct. App. 2002).

In all parenting time hearings I suggest that parties request TR52(a) - Findings and Conclusions. What this does is give the parties an opportunity to brief the court on the facts and law of the hearing. It also creates a lower standard for a reviewing court [fn2] to reverse the judgment unlike the general judgment standard[fn3] which requires deference to the trial court and must be supported on any theory.

Mother has, by basing her motion upon allegations which were found by CPS to be “unsubstantiated”, clearly failed to demonstrate a prima facia showing that continuing Father’s parenting time “might” or, more importantly, “would” endanger the children’s physical health or emotional development.

Finally, I note that Father did not receive a copy of the purported filing by Mother but was only given a synopsis from her by email in which she sought to amicably reach a settlement agreement prior to hearing. I doubt that any agreement will happen.

For all of these reasons it is apparent to me that Mother’s motion will be denied by the court without hearing. Father plans to file a response soon as he calmly reviews the sparse information that was given to him and marshals relevant evidence.


[1] Rule 52. Findings by the Court
(A) Effect. In the case of issues tried upon the facts without a jury or with an advisory jury, the court shall determine the facts and judgment shall be entered thereon pursuant to Rule 58. Upon its own motion, or the written request of any party filed with the court prior to the admission of evidence, the court in all actions tried upon the facts without a jury or with an advisory jury (except as provided in Rule 39[D]) shall find the facts specially and state its conclusions thereon. The court shall make special findings of fact without request
(1) in granting or refusing preliminary injunctions;
(2) in any review of actions by an administrative agency; and
(3) in any other case provided by these rules or by statute.
On appeal of claims tried by the court without a jury or with an advisory jury, at law or in equity, the court on appeal shall not set aside the findings or judgment unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. The findings of a master, and answers to questions or interrogatories submitted to the jury shall be considered as findings of the court to the extent that the court adopts them. If an opinion or memorandum of decision is filed, it will be sufficient if the findings of fact and conclusions appear therein. Findings of fact are unnecessary on decisions of motions under Rules 12 or 56 or any other motion except as provided in Rule 41(B) (dismissal) and 59(J) (motion to correct errors).

[2] Where the trial court enters findings of fact and conclusions thereon pursuant to Indiana Trial Rule 52(A), our standard of review is well-settled. First, we determine whether the evidence supports the findings and second, whether the findings support the judgment. Kwolek v. Swickard, 944 N.E.2d 564, 570 (Ind. Ct. App. 2011), trans. denied. In deference to the trial court’s proximity to the issues, we disturb the judgment only when there is no evidence supporting the findings or the findings fail to support the judgment. Id. We do not reweigh the evidence, but consider only the evidence favorable to the trial court’s judgment. Id. Challengers must establish that the trial court’s findings are clearly erroneous. Id. Findings are clearly erroneous when a review of the record leaves us firmly convinced a mistake has been made. Id. However, while we defer substantially to findings of fact, we do not do so to conclusions of law. Id. Additionally, a judgment is erroneous under Indiana Trial Rule 52, if it relies on an incorrect legal standard. Id. We evaluate questions of law de novo and owe no deference to a trial court’s determination of such questions. Id.

[3] Where there are no specific findings, a general judgment standard applies and we may affirm on any legal theory supported by the evidence adduced at trial.” Trust No. 6011, Lake Cty. Trust Co. v. Heil’s Haven Cond. Homeowners Ass’n, 967 N.E.2d 6, 14 (Ind. Ct. App. 2012).

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