In re W.C.

• Decision Date: 29 July 2011
• Docket Number: No. 82A04–1008–JP–496.,82A04–1008–JP–496.
• Citation: 952 N.E.2d 810
• Parties: In re PATERNITY OF W.C., b/n/fP.S., Appellant–Respondent,v.W.C., Appellee–Petitioner.
• Court: Indiana Appellate Court

952 N.E.2d 810

In re PATERNITY OF W.C., b/n/fP.S., Appellant–Respondent,

v.W.C., Appellee–Petitioner.

No. 82A04–1008–JP–496.

Court of Appeals of Indiana.

July 29, 2011.

Garvin D. Senn, III, Legal Aid Society of Evansville, Inc., Evansville, IN, Attorney for Appellant.Michael H. Hagedorn, Hagedorn Law Office, Tell City, IN, Attorney for Appellee.

OPINION

VAIDIK, Judge.

Case Summary

P.S. (“Mother”) appeals the trial court's order suspending her parenting time and any other contact with her minor child. Because W.C. (“Father”) failed to present evidence justifying suspension of Mother's parenting time, we conclude that the trial court abused its discretion. We therefore reverse and remand.

Facts and Procedural History

Mother and Father have one child together, W.C., who was born February 14, 2000. W.C. has been diagnosed with autism spectrum disorder.

Father admitted paternity of W.C. in 2002 and was given parenting time according to the Indiana Parenting Time Guidelines. In March 2009, Father filed a petition to modify custody, which was granted in August 2009. The record does not reveal why custody was modified or what Mother's parenting time schedule was when Father gained custody.

In May 2010, the trial court issued an order modifying Mother's parenting time to visits on Sundays from noon to 1:00 p.m. at McDonald's in Tell City, Indiana, supervised by Father, and telephone contact on Wednesdays between 3:00 p.m. and 5:00 p.m. with the length of the calls limited to W.C.'s attention span. The order provided that if Mother did not call Father by 10:00 a.m. on Saturday, Father could assume that Mother did not intend to exercise her Sunday parenting time. Mother was further ordered to treat W.C. appropriately for his age and to refrain from discussing adult topics with him. The trial court also granted a protective order prohibiting Mother from any contact with W.C., Father, or Father's wife outside of the ordered times. A review hearing was set for July 2010.

Father maintained a three-page journal in which he documented Mother's conduct during parenting time and the effects on W.C. between the May modification order and the July review hearing. Father submitted this journal to the trial court during the review hearing, and the court used the journal to question Mother and Father. The following are the journal entries for the McDonald's visits:

May 23, 2010—Brought [W.C.] calendar with court dates, [spoke with] him about court, fed him

May 30, 2010—Brought cassette player and would make him record various things like “I love you” and “I miss you[.]” Brought up how he use[d] to cuss and she would make him eat [Ta]basco sauce. [W.C.] started cussing that night [.] She was laughing [to W.C.] about how he use[d] to cuss ...

June 6, 2010–brought [W.C.] another calendar with court dates. [Spoke with] him about how she missed him and ... about his old school, the last time he visited her—purposely making him upset. Also [spoke with] him about court again and fed him

June 13, 2010—she did not call until almost noon on [S]aturday and left a message we could not understand—visit was denied

June 20, 2010—brought recorder and tried to record [W.C.] again but he would not do it. Played him songs about missing him. Brought preschool books—[S]esame [S]treet & Clifford[.] Referred to him often as a baby, wiped his mouth and fed him. Was whispering things to him. Gave book with up[s]etting things wr[itten] in it.

June 27, 2010—[Spoke with] him about court and that he would come back to stay with her. Whispered alot [sic]. Overheard her tell him this was a bad place and he should be with her. Was very “out of sorts today[.]” She was hard to understand and seemed to be on something

July 4, 2010—she continued to feed him & refer to court and attorneys often. Referred to what would happen after the 14th often. [W.C.] tried to tell her about new bike and the fair he went to and she told him how dangerous it all was and how he could get hurt and bust his head open. [W.C.] very upset—pooped his pants that day

July 11, 2010—talked to him about how she could die with her illness. Spoke continually about the “14th” and how he should pray that everything goes well in court. fed him milkshake with a spoon[,] fed him candy by hand

Appellant's App. p. 55–56. Regarding Mother's phone calls to W.C., Father's journal states that “each call has been an exten[s]ion of the visits. Speaking to him in baby talk. Most of the calls could not even be understood. VERY slurred speech on every call.” Id. at 54. Finally, Father's journal lists W.C.'s behavioral issues that he did not exhibit before the visits:

Pooped in his pants

Started cussing

Reverted back to baby talk

Started yelling

Became obsessed with baby things RE: toys, [TV] shows ( [S]esame [S]treet etc) when he had previously been on 10 yr old level such as cars, trucks, video games

Id.

At the review hearing, Father confirmed the substance of his journal entries and added a few more details. He claimed that Mother told W.C. that Father's wife was a bad person and that W.C. lived in a bad place. He told the court that he and his wife “talk to [W.C.] about everything and put structure in his life and anything he wants to do we're there for him. You know, we try to encourage him to do things.” Tr. p. 25. As to Mother's Wednesday calls to W.C., Father said he hears the conversations because he turns on the speaker phone. He further told the court that W.C.'s school has taught him to communicate in the form of a story if he becomes upset, and that on the way to McDonald's for the July 11 visit, W.C. told Father and his wife, “I'm going to tell you a story ... about a little boy that doesn't want to go to McDonald's, I want to stay home.” Id. at 29; see also Appellant's App. p. 54. Father stated, “[Mother]'s not any way, shape, or form, a positive influence in his life at all.” Tr. p. 29. He claimed that nothing had changed regarding Mother's treatment of W.C. for a year and a half and implored the court for help.

Most of the trial court's questions asked Mother to explain her actions as documented in Father's journal. Mother claimed the only time she fed W.C. was when she showed him how to get the last bit of his milkshake with a spoon. She acknowledged showing W.C. how to hold his Big Mac but denied ever feeding him his sandwiches or fries. She said W.C. loves calendars so she gave him two from Legal Aid, and she did not think he understood what the highlighted court dates meant. She also said she gave him a puppy calendar the week before the hearing. She stated that W.C. brought up the topic of court by asking her how many more Sundays he would get to see her, and she told him that it was up to other grown-ups and that they would find out in July.

Mother said that she asked W.C. to make the voice recordings because “I don't hear [his voice] around the house no more” and because “he used to love to do that.” Id. at 11. Mother admitted that she asked W.C. whether he had been cussing. As to talking about W.C.'s old school, Mother explained that she asked W.C. the date school started, and when he responded, she told him he was lucky because his old school started earlier. Mother claimed that she showed W.C. a picture of when he was younger because she wanted to show him that she had noticed how much he had grown. She explained to him, “This is how you looked last year. This is how you look this year. You're no longer my little nine year old boy that went away last year.” Id. at 13. Regarding the missed visit, Mother explained that she called late on Saturday about parenting time on Sunday because she was suffering from a cluster of kidney stones and neglected to notice the time. As to Father's journal entry that Mother played W.C. songs about missing him, Mother said that she played W.C. a Kings of Leon song because he used to sing it along with her. Mother admitted bringing W.C. Spider Man and Clifford books but also said she brought him Hot Wheels books and a book about the earth.

When the court asked Mother whether she referred to W.C. as “Baby,” Mother responded that she had been calling him “Big Man.” She did not remember calling W.C. “Baby” or wiping his mouth. Later, when the court asked her to address Father's claim that she used baby talk during the Wednesday phone calls, Mother admitted that she may inadvertently call W.C. “Baby” sometimes, but that she is trying to treat him like a pre-teen.

Mother stated that she does not talk loudly during the visits since they are at McDonald's and denied saying anything about Father's wife. Instead, she claimed she asked W.C. whether he “still had Baby Jesus in his heart” and told him to “pray for the middle of July where maybe Mommy can get you for the day.” Id. at 20, 21. When W.C. told Mother that he went to the fair and rode the Scrambler, Mother said she told him that the Scrambler used to be her favorite ride. As to W.C. telling Mother about his new bike, Mother said, “I was worried he does not know how to ride a bike and I was worried that they wouldn't get him training wheels and a helmet. Because I even told him that next Wednesday ‘I got two helmets, if you don't have one you can have one.’ ” Id. at 23–24. When W.C. said something to Mother about her hair growing back, Mother explained that she wore a headband because her hair was clipped after her second aneurism and that she considered herself lucky because eighty percent of people who have aneurisms die.

The trial court ordered Mother's parenting time rights and any other contact with W.C. immediately suspended, stating in relevant part:

Having reviewed and considered [Father]'s diary filed of record; statements and explanations from [Mother] and [Father] concerning [Mother]'s supervised parenting time and telephonic communication with the child, [W.C.], since May 11, 2010; and, statements of counsel, being duly advised in the premises, the Court now Orders [Mother]'s...