Chivers v. Marquardt (In re R.M.)
| Decision Date | 15 August 2014 |
| Docket Number | No. 02A05–1310–JP–496.,02A05–1310–JP–496. |
| Citation | 19 N.E.3d 417 (Table) |
| Parties | In re The PATERNITY OF R.M. Laura K. Chivers, Appellant–Petitioner, v. Jeffery L. Marquardt, Appellee–Respondent. |
| Court | Indiana Appellate Court |
Yvonne M. Spillers, Fort Wayne, IN, Attorney for Appellant.
Michael H. Michmerhuizen, Barrett & McNagny LLP, Fort Wayne, IN, Attorney for Appellee.
FRIEDLANDER
, Judge.
L.C. (Mother) appeals from the trial court's order modifying custody and parenting time. She presents a number of issues, which we consolidate and restate as follows:
We affirm.
Mother gave birth to R.M. (Child) in December 2001.1 Mother and J.M. (Father) lived together from before Child's birth until their relationship ended in 2004. Paternity was established in Father in January 2005, and Mother was awarded sole legal and physical custody of Child. Father was awarded parenting time in accordance with the Indiana Parenting Time Guidelines and ordered to pay support.
In the ensuing years, the parties' co-parenting relationship became highly contentious and was marked by frequent litigation. On January 12, 2011, Father filed a petition to modify custody, support, and parenting time, in which he requested sole legal and physical custody of Child. On the same date, Father also filed a motion for a custody evaluation. The parties subsequently stipulated to a custody evaluation to be conducted by Dr. Stephen Ross.
On February 17, 2012, Father filed a petition for emergency temporary custody of Child. In the petition, Father alleged that on the previous day, Mother's sister had telephoned him, the Fort Wayne Police Department, Child's school, and the parties' attorneys. Mother's sister reported that as a result of a telephone conversation she had with Mother, she feared that Mother would harm herself or Child. Father also asserted that Child was currently in his care and that he did not know Mother's condition or whereabouts. A hearing was held before a judge pro tempore on the same day the petition was filed. Father appeared at the hearing with counsel, and although Mother did not appear, counsel appeared on her behalf.2 At the conclusion of the hearing, the trial court awarded emergency temporary custody to Father.
The trial court held a de novo hearing on the issue of temporary custody on March 8, 2012, at which Mother and Father both appeared in person and with counsel.3 Following the hearing, the trial court ordered that Father retain temporary custody of Child and that Mother have four hours of supervised parenting time at a local facility called Family Connections. The order specifically provided that Mother's parenting time was “subject to Family Connections' reasonable conditions and rules for supervised parenting time” and that “[b]oth parties shall fully cooperate with the parenting time supervisor.” Appellant's Appendix at 57.
The trial court held a final hearing on Father's petition to modify permanent custody on August 1 and 2, 2013. At the hearing, evidence was presented concerning the events precipitating the emergency change in temporary custody. In 2009, Mother began treatment with a psychiatrist, Dr. Hani Ahmad. Dr. Ahmad diagnosed Mother with an anxiety disorder and panic attacks, and he prescribed .5 milligrams of Xanax
to be taken twice daily as needed. On February 16, 2012, Mother overdosed on Xanax. Although Mother claims that the overdose was accidental and denies any suicidal intent, there is evidence in the record indicating that on the day of her overdose, Mother called her father and told him that he would not see her again. Mother also left a voicemail for her sister in which she threatened to harm herself. Mother's father was concerned for Mother's safety, so he called 911 and went to check on her at her home. Mother was ultimately transported to the hospital for treatment. Hospital records show that Mother told medical personnel that she purposely took four Xanax tablets, but that she did not think that was too much. Mother apparently also told medical personnel that she had been prescribed the Xanax just three days earlier, but also that she “only takes Xanax once or twice a month” and that she “has various bottles around the house that have a little bit of Xanax in each of them, so she is never lacking for pills to take when she needs them.” Id. at 43. Mother testified that she stopped taking Xanax immediately after the overdose, but Dr. Ahmad testified that he was writing her prescriptions up until November of 2012, when Mother asked to discontinue the Xanax for fear it would be used against her in court.
Evidence was also presented concerning Mother's supervised visits with Child at Family Connections. The visitation records show that there were four visits scheduled in April and May 2012. At the first visit, on April 10, 2012, Child was initially very uneasy around Mother, but became more comfortable as the visit progressed. At the second visit, on April 17, 2012, Child was very angry with Mother. When Mother told Child that she had left several messages for Child and wanted Child to call her back, Child responded that she had called Mother back, but Mother had not answered, which Mother denied. Child stated . Appellee's Appendix at 19. The parenting time supervisor intervened and stated that they were not to talk about phone calls any longer. Child also accused Mother of breaking a window at Father's house, which she denied. Child also stated that Mother had intentionally overdosed and told Mother Id. at 20. Mother became angry and defensive, and the parenting time supervisor removed Child from the room. While Child was outside the room, Family Connections Supervisor Tonya Reilley spoke to Mother and provided her with ideas on how to redirect Child to more positive subjects. Reilley told Mother that if she became combative, defensive, or angry with Child, the visit would be terminated. Mother stated that she understood, but that she was extremely angry with Child. Child was then brought back into the room, and Mother was distant and gave curt responses to Child for the rest of the visit.
On April 20, 2012, Mother called Family Connections and stated that she was cancelling her visits because she was getting a new job and was unsure of her schedule, and also because the visits were uncomfortable and not beneficial for her or Child. On May 17, 2012, Mother called Family Connections and asked to resume visitation. Family Connections representatives decided that visits would be limited to one hour per week until Mother showed consistency in her visits. The next visit took place on May 22, 2012. When Child was brought into the room, Mother was writing in a notebook and did not acknowledge Child. Child then sat down and began reading a book. When Mother asked Child what she was reading, Child responded “Nothing.” Id. at 25. Mother then told the parenting time supervisor that she was Id. The parenting time supervisor responded that the visit was over and took Child back to Father. The entire visit lasted seven minutes.
Another visit was scheduled for May 29, 2012. When the parenting time supervisor went to get Child from the waiting room, Child was visibly distressed. Child was curled up in a fetal position, shaking, and clutching a book so tightly that her knuckles were white. When the parenting time supervisor asked Child what was wrong, she responded that she did not want to see Mother. The visit was cancelled due to Child's emotional state. Thereafter, Reilley suspended Mother's visitation, and Mother never again contacted Family Connections to resume visitation.
Dr. Ross testified at the hearing and his custody evaluation was admitted into evidence. Dr. Ross had spoken to the parties and Child both before and after Child was placed in Father's custody on a temporary basis. He noted that prior to the change in temporary custody, Child expressed a desire to stay with Mother and stated that Father was putting words in her mouth and trying to change her mind. After the change in temporary custody, however, Child expressed an adamant desire to stay with Father. Notably, Child told Dr. Ross that there were frequent arguments in Mother's home and that she had observed Mother taking pills. Child reported that on one occasion, Child's friend's mother had to drive Child home from a music lesson because Mother had taken medication. She also stated that Mother often had difficulty waking up in the morning, which caused Child to be late to school several times. Dr. Ross noted that Child had told her counselor that she did not feel safe with Mother because Mother “takes a lot of medicine” and “acts funny.” Id. at 89. Dr. Ross also noted a police report indicating that Mother had caused a disturbance at her former attorney's office by “yelling and throwing things.” Id. at 96. Additionally, Child's elementary school teacher reported that Mother had “verbally attacked” her at a parent-teacher conference in the presence of Child and many other students and parents. Id. at 103. On another occasion, around the time Father was awarded temporary custody, Mother tried to pick up Child from school. By her own admission, Mother became “extremely angry and out of control” when told she could not leave...
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