Fougerousse v. Dardeen

• Decision Date: 06 October 2021
• Docket Number: Court of Appeals Case No. 21A-DC-599
• Citation: 176 N.E.3d 583 (Table)
• Parties: Steven Michael FOUGEROUSSE, Appellant-Respondent, v. Dawn M. (Fougerousse) DARDEEN, Appellee-Petitioner
• Court: Indiana Appellate Court

176 N.E.3d 583 (Table)

Steven Michael FOUGEROUSSE, Appellant-Respondent,

v.Dawn M. (Fougerousse) DARDEEN, Appellee-Petitioner

Court of Appeals Case No. 21A-DC-599

Court of Appeals of Indiana.

FILED October 6, 2021

Attorney for Appellant: Paul J. Watts, Watts Law Office, P.C., Spencer, Indiana

MEMORANDUM DECISION

Crone, Judge.

Case Summary

[1] Steven Michael Fougerousse (Father) appeals the trial court's orders restricting his parenting time, claiming that no evidence was presented that parenting time would endanger his children's physical health or significantly impair their emotional development. We affirm.

Facts and Procedural History

[2] Father and Dawn M. (Fougerousse) Dardeen (Mother) have two daughters (the Children): M.F., born in July 2003, and H.F., born in January 2007. Father and Mother were divorced in 2009. Mother received primary custody, and Father was granted parenting time. Mother resides in Danville, and Father resides in Bloomington. As of October 2020, Father regularly exercised standard parenting time pursuant to the Indiana Parenting Time Guidelines (alternating weekends plus extended time during the summer),¹ and he was obligated to pay Mother $250 weekly in child support.

[3] On October 5, Mother filed a verified emergency motion to suspend Father's parenting time, alleging that Father's "abuse of alcohol and other behaviors during his parenting time with the Children might endanger the Children's physical safety" and "significantly impairs the Children's emotional development." Appellant's App. Vol. 2 at 37. Among other things, Mother alleged that Father "has been intoxicated in public locations with the Children[,]" "has been so intoxicated while in his home exercising parenting time with the Children that he has ‘passed out,’ " had "scream[ed] and rag[ed] at his family members and his girlfriend" within earshot of the Children, and "acts toward the Children in an intimidating manner." Id. at 36, 37. Mother also filed a verified motion to modify Father's parenting time and child support.

[4] On October 16, the trial court held an evidentiary hearing on Mother's emergency motion. The Children's licensed mental health counselor, Jean Crane, testified that the Children told her during their first session several months earlier that Father "is intoxicated during the entire visit that they have with him ...." Tr. Vol. 2 at 12. During their second session, the Children stated that "they were too afraid to address it with him because they were really afraid that he would get angry with them[,]" that "his family has known about this problem with drinking but they haven't done anything and his girlfriend who currently lives with him also knows that he's drinking the whole time ...." Id. Crane was so concerned that she contacted Child Protective Services, "because obviously [Father is] not available to supervise the way that he should during the visit and it is also no sort of quality relationship being built if he's spending the whole time intoxicated ...." Id. According to Crane, the Children told her "that they couldn't even remember a time for the past years that they've been going down [to Father's residence] that he hasn't been intoxicated during the whole visit[,]" and that they spend as much of their visit "as they possibly can up in their room away from him because he can tend to get angry or upset with them ...." Id. at 12, 13.

[5] Mother testified that M.H. drives H.F. to Father's residence for parenting time and has "been doing that since she got her driver's license" approximately one year earlier. Id. at 23. According to Mother, she initiated the Children's counseling with Crane after "an argument at their grandparent[s’] house that they had witnessed between [Father] and their grandfather." Id. at 24. She testified that Father's "excessive drinking" had been an issue "[f]or years[,]" and she was concerned "[n]ot so much [for the Children's] physical safety but more their mental and emotional safety[.]" Id. at 24, 25.

[6] Father's girlfriend testified that she had "never witnessed" the Children exhibiting any fear of Father and had "never seen" Father "incapacitated to the point to where he's unable to parent his children." Id. at 29, 31. She further testified that she had "never seen anything where [Father was] verbally or emotionally abusive" or anything that gave her a "fear" that Father "might in fact have an alcohol problem[.]" Id. at 33, 34. One of Father's former girlfriends offered similar testimony. Father denied having any issues with alcohol and denied verbally or emotionally abusing the Children, and he testified that the Children had never exhibited or communicated any fear to him. He did acknowledge having a "heated conversation" with his father, as well as being convicted of operating while intoxicated (OWI) in 2008 and 2018. Id. at 52.

[7] The parties did not call the Children as witnesses, and the trial court interviewed them in camera. See Ind. Code § 31-17-4-1(b) ("The court may interview the child in chambers to assist the court in determining the child's perception of whether parenting time by the noncustodial parent might endanger the child's physical health or significantly impair the child's emotional development.").² At the conclusion of the hearing, the court told the parties,

You know a judge's job in these types of cases, uh, is to take everything that he hears and try to reconcile it. When you have two diametrically opposed positions where two people are saying completely polar opposite things that can be challenging so there are certain things, certain patterns that a judge looks for, certain pieces to try to move the barometer to one side or the other. And I guess [Father] what I'll tell you is that the pieces that I'm hearing from your side don't move the barometer but the pieces that I'm hearing from the other side including, uh, what I heard from your daughters convinced me that I need to grant this motion here today. There's clearly a disconnect, uh, whether it be from your prospective [sic] on your use of alcohol or whatever is going on when the girls are with you. The things that I look for when I interview children in terms of, uh, reliability, coaching, none of that existed when I talked to your daughters. They both independently told me things that were consistent but enough inconsistent minor details that led me to conclude that they weren't being rehearsed. Both of them told me when I asked them flat out no one had told them what to say but they had asked to come. They've been dealing with a circumstances [sic] during parenting time for quite a long time because they're seventeen and they're thirteen. They didn't know how to deal with it. And it got to the point where we're at today because they didn't know how to deal with it emotionally a seventeen and a thirteen-year-old don't know how to deal with those things and that's why we're here today. They wanted this.[...] And so I heard enough from both of them in their stories and their consistency to reconcile it with the other things that I heard here today to led [sic] me to believe that what I was hearing from you is not consistent with what I'm hearing from the other piece, okay? That's why I'm granting Mother's motion.

Tr. Vol. 2 at 105-06.

[8] The trial court stated that it was suspending Father's parenting time pending review at the forthcoming hearing on Mother's motion to modify and issued a written order that reads in relevant part as follows:

1. Mother's Motion to Suspend Father's Parenting Time is granted until further order of this court.

2. Father is to engage in counseling and participate in person or remotely as directed by the Counselor, Jean Crane.

3. Father is ordered to complete Substance Abuse and Alcohol Evaluation with a DMHA approved provider at Father's cost and is ordered to complete any recommended treatment.

Appealed Order at 1. Father did not object to the trial court's ruling at the hearing or initiate an appeal from the written order.

[9] The evidentiary hearing on Mother's motion to modify was held on March 18, 2021. Crane testified that she and Father and the Children had "been meeting regularly" since December and that the "counseling sessions [had] gone well." Tr. Vol. 2 at 114, 115. She acknowledged that she had not communicated with the therapist that Father was seeing pursuant to the trial court's order. Regarding parenting time, Crane stated,

I don't have any problem with going back to state minimum guidelines in the fact that I feel that [Father] has worked really hard to, uh, do everything that's been asked of him and I appreciate that so much, but I also think that it could be in the girls’ best interests for us to continue to monitor this for a little longer.

....

I mean my professional opinion would be that I think it actually could be a good thing to do two one night overnights per month and then I personally think it would be good for [H.F.] to do one of those overnights by herself because you know [M.F.’s] going off to college [at Purdue in August 2021] so [H.F.] will be doing those overnights by herself so just to kind of while we're still in counseling and making sure that everything's going well that she wants to give her opinion of how things are going. I don't think there's anything wrong with that. I feel like that's a pretty good compromise when it comes to, you know, making sure that we're working on quality not just quantity.

Id. at 119, 121. According to Crane, Father had "never admitted to [her] that [he has] an actual addiction [to alcohol] but he has [...] said that he has used alcohol a lot in the past." Id. at 124. The Children had reported to Crane that Father did not consume alcohol during recent brief outings that they had together, but Crane testified that she had recently received an email from M.F. indicating that Father "had asked her to call him later that night and then she had called him and then the next day he said I guess you were too...