Joe v. Lebow, 49A02-9504-JV-189

Decision Date18 July 1996
Docket NumberNo. 49A02-9504-JV-189,49A02-9504-JV-189
Citation670 N.E.2d 9
PartiesLinda D. JOE, Appellant-Respondent, v. Robert F. LEBOW, Appellee-Petitioner.
CourtIndiana Appellate Court
OPINION

SULLIVAN, Judge.

In this case arising from a prior determination of paternity, Linda D. Joe (Mother) appeals the order of the trial court granting the petition of Robert F. Lebow (Father) for modification of custody of their daughter, N.D.L., and awarding Father permanent custody.

Mother presents the following issues, as restated and reordered, for our review:

I. Whether the recently-revised statutory provision addressing custody modification in the paternity context should be interpreted to incorporate the standards applied in the former statutory provision addressing custody modification in the dissolution context;

II. Whether the trial court erred in considering evidence concerning improvement in N.D.L.'s condition during the period when Father had temporary custody of N.D.L. pending resolution of his petition;

III. Whether the evidence was sufficient to sustain the trial court's order modifying custody and awarding custody to Father; and

IV. Whether the trial court improperly placed the burden of proof upon Mother to demonstrate changes within the custodial home?

We affirm.

Shortly after N.D.L.'s birth on January 12, 1983, Father filed a petition to establish paternity. The parties stipulated to Father's paternity of N.D.L., and Father did not object to Mother having legal custody. The parties did, however, dispute the issue of visitation by Father, and the issue was litigated before a Special Judge, who entered an order granting Father visitation for two weeks out of each month. The Special Judge granted Father such frequent visitation despite the fact that, during the pendency of the litigation, Mother moved from Indianapolis, where Father resides, to Maryland, in order to undertake a medical fellowship. Ultimately, the case was appealed to this court, which in 1985 reversed the Special Judge's visitation order. 1 Thereafter, the visitation issue was mediated, and an agreed-upon schedule was approved by Judge Payne on November 3, 1986. Pursuant to this schedule, Father had visitation with N.D.L. for two separate three-week periods in the summer, for five days at Thanksgiving, from Christmas to somewhat after the new year, and over N.D.L.'s spring break. Mother and Father apparently honored the terms of this schedule without significant conflict until 1994.

N.D.L., who continued to reside with Mother in Maryland through 1994, was born with a number of health problems, including a spinal neurological degeneration which was thought at birth to be progressive, but which at some point stabilized. She also suffers from scoliosis, which necessitated major surgery in 1992 to correct a sixty-degree curvature in her spine and resulted in her thereafter being in a body cast for three months. N.D.L. also suffers from an undefined learning disorder which causes her to transpose words and have difficulty "finding words" when she is speaking. Record at 354. To assist her in overcoming her learning and speech difficulties, Mother placed N.D.L. at an early age into a special educational program, which culminated in N.D.L.'s gradual mainstreaming into the general educational population in the third grade. Further, to provide assistance in overcoming her physical challenges, N.D.L. received physical therapy until kindergarten.

During his first three-week summer visit with N.D.L. in 1994, Father developed serious concerns regarding N.D.L.'s condition. N.D.L. had always been an obese child, and as early as summer 1993, Father had placed N.D.L. on a calorie-restricted diet during his first visitation with N.D.L., which resulted in her losing ten pounds over the three-week period. When N.D.L. returned for her second 1993 summer visitation, however, she had, according to Father, "gained the ten pounds back plus some." Record at 284. Further, when N.D.L. returned for her visitation with Father in summer 1994, she weighed 194 pounds, fully forty pounds heavier than she had been in the summer of 1993. Father was particularly concerned that about twenty pounds of the weight gain had occurred between N.D.L.'s visit with him during her 1994 spring break in April and her first visit in July 1994, a period of less than three months. Father also observed during the first summer 1994 visit that N.D.L. appeared depressed and expressed unhappiness with her life in Maryland. N.D.L. specifically claimed that she was alone for significant periods of time at night before Mother returned from work and frequently had to make her own meals. N.D.L. also stated that she wanted help losing weight.

Based upon his observations of N.D.L.'s physical and emotional condition, Father took N.D.L. in July 1994 to see Dr. Philomena Dias, a pediatrician and specialist in adolescent medicine. Dr. Dias diagnosed N.D.L. as being morbidly obese and suffering from high blood pressure. Dr. Dias described N.D.L.'s forty-pound weight gain over the course of one year as "dramatic" for a child of N.D.L.'s age. Record at 151. Further, during a psychological screening described by Dr. Dias as routine practice in adolescent medicine, N.D.L. revealed that she was depressed and expressed thoughts of suicide or self-harm.

While Dr. Dias was concerned by N.D.L.'s expression of suicidal thoughts, she did not feel that N.D.L. was at a stage where she was likely to act on her thoughts, since N.D.L. did not have an organized plan for suicide or self-harm. Further, N.D.L. was scheduled to go on a vacation with Mother shortly after the medical exam, and was looking forward to the trip. Dr. Dias stated that, since vacations are natural "stress relievers," and since N.D.L. would be supervised by Mother throughout the trip, she felt it would be acceptable for N.D.L. to return to Mother in order to go on the vacation, so long as appropriate arrangements were made for counseling upon N.D.L.'s return to Indianapolis, which was to occur right after the vacation with Mother was completed.

Shortly after N.D.L.'s return to Indianapolis in August 1994, Dr. Dias again examined N.D.L.. N.D.L. stated that she was still depressed, and had been "unable to connect with her mom" while on the trip. Record at 132. Dr. Dias also observed that N.D.L. had developed a problem with shortness of breath which had not appeared during the July exam. N.D.L. told Dr. Dias that she did not wish to return to Maryland with Mother, and that she felt "really alone and isolated" while in Mother's care. Record at 136. Shortly after the August exam, Dr. Dias contacted Mother and reported her concerns about N.D.L.'s depression and suicidal thoughts. Mother was unaware of N.D.L.'s depression or suicidal thoughts, and thus had not instituted treatment for this problem. Further, Mother testified that she was unaware of N.D.L.'s forty-pound weight gain over the past year, and N.D.L.'s pediatrician in Maryland, who had not seen N.D.L. for a year, was not treating her for a weight problem. Mother did testify that she was aware that N.D.L. had a general weight problem, which was being addressed with "a regiment [sic] of mild diet restriction and lots of activity as much as she would tolerate." Record at 383.

Dr. Dias referred N.D.L. in August to Marsha Goldfarb, a clinical social worker, for further evaluation of N.D.L.'s depression. Ms. Goldfarb met with N.D.L., who reported that she felt "a sense of extreme loneliness" while living with Mother. Record at 159. N.D.L. stated that, although she would not act upon her thoughts of self-harm or suicide, she had those thoughts on a daily basis. N.D.L. reported a very negative self-image, which stemmed in part from teasing she received at school due to her weight, and in part from her sense of loneliness and isolation at home. N.D.L. reported to Ms. Goldfarb that she was often left home alone late, sometimes until ten or eleven o'clock at night. It was soon learned, however, that N.D.L. had in fact exaggerated the amount of time she was left alone, since Mother usually returned home from work before seven o'clock, and employed houseworkers to look after N.D.L. until she arrived home.

Ms. Goldfarb opined that N.D.L.'s embellishment of the amount of time she was alone was motivated by her "need to have other people understand how lonely she felt. Whether or not she was actually alone all that time or not, her perception was that she was alone far too much and needed some other connection or nurturing or watching over her." Record at 163. When specifically asked whether Mother was meeting N.D.L.'s emotional needs, Ms. Goldfarb responded in the negative, based on N.D.L.'s "sense of isolation". Record at 174. Ms. Goldfarb also stated, in response to being asked whether N.D.L. had difficulty relating to Mother, that "there is an area where [N.D.L.] is afraid to risk perceived rejection from her mother. If [N.D.L.] said something her mother [did] not like, that could have negative consequences to [N.D.L.]." Record at 175. Ms. Goldfarb concluded that N.D.L. required immediate intervention or counseling, and recommended that N.D.L. not return to Maryland.

Based upon his observations of N.D.L., along with the reports of Dr. Dias and Ms. Goldfarb, Father filed a "Verified Emergency Petition for Temporary Custody" of N.D.L. on August 19, 1994, attaching an affidavit of Ms. Goldfarb attesting, in relevant part, to the results of her examination of N.D.L. indicated above. Judge Payne granted the petition on August 20 and set a date for a permanent custody hearing. The hearing, which was originally scheduled for September 27, was held on December 6 and 13, 1994.

Prior to the hearing, Dr. John Ehrmann, a clinical psychologist, performed a custody evaluation of N.D.L., Mother, and Father...

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