IN RE: the Paternity of: C.R.S. Stacie M. Brown (2025)

MEMORANDUM DECISION

[1] Stacie Brown (“Mother”) appeals the Fountain Circuit Court's order modifying custody over her son C.S. (“Child”). Mother presents two issues for our review:

1. Whether the trial court denied Mother her right to due process.

2. Whether the trial court abused its discretion when it modified custody over Child.

[2] We affirm.

Facts and Procedural History

[3] Mother and Gregory Scattergood, Jr. (“Father”) (collectively, “Parents”) are the parents of Child, who was born on January 17, 2017. After Parents ended their romantic relationship, they entered into an agreed provisional entry in January 2020. Pursuant to that agreement, Mother had custody over Child and Father exercised parenting time. The parties did not resolve the issue of child support at that time.

[4] In October 2021, the State moved to intervene and filed a petition to establish child support. In February 2022, the trial court ordered Father to pay $68 per week in child support retroactive to October 2021. In September 2022, Father filed a motion to modify his child support due to his unemployment and disability. While that motion was pending, in March 2023, Father filed a petition to modify custody over Child. Due to an error in his pleading, Father amended it in June.

[5] During a July 10 hearing on a motion for rule to show cause filed by the State, the trial court scheduled a hearing on Father's petition to modify custody for July 24. Mother appeared at the July 10 hearing via Zoom. However, due to technical difficulties, Mother did not appear via Zoom, as expected, for the July 24 hearing on Father's petition to modify. The trial court conducted that hearing in her absence, after which it found and concluded as follows:

1. Father has been exercising extended summer parenting time with the minor child, [Child], age 6, since May 28, 2023.

2. Father filed a Verified Petition to Modify Custody without an Agreement on March 6, 2023. However, there were errors in Father's filing and pages were missing from his Petition. Father filed an amended Petition on June 7, 2023. Since the filing of Father's initial petition, Parties have appeared and agreed to continue several occasions. Both parties previously appeared on July 10, 2023, and agreed to set a final hearing on today's date.

3. Father testifies Mother has relocated from her previous residence, is no longer living with maternal grandfather, and that he has concerns that mother is using drugs due to reports and photos sent to him.

4. Father reports the child has a psychiatrist appointment next week and he has concerns [that] the child has suffered trauma in Mother's care.

5. Mother has not visited the child since Father's extended summer parenting time began and has only called three times. After each call, the child exhibited behaviors including bed wetting.

6. Father has safety concerns for the child in Mother's care.

7. At this time, the Court finds it is in the best interest of the child to temporarily modify custody from Mother to Father.

8. Both parties shall submit to a hair follicle drug screen and file said results with the Court.

9. Mother's parenting time shall be temporarily supervised. Supervision may occur by an agreed upon third party.

10. Father's child support is temporarily abated to $0 beginning today's date.

The Court sets this matter for further hearing on August 28, 2023[,] at 2:30 PM. All parties are ordered to appear IN PERSON.

Appellant's App. Vol. 2, p. 41.

[6] Two weeks later, on August 29, the court “conducted a subsequent hearing” on Father's petition to modify custody. Id. at 60. Mother appeared, pro se, and asked for a continuance so that she could find counsel. The trial court granted that continuance. The court also modified Mother's parenting time as the parties could agree but ordered that visitation occur in Indiana (Mother was living out of state). The court scheduled an evidentiary hearing on Father's petition for November 27.

[7] On November 27, counsel for Mother filed an appearance, and Mother moved to continue the evidentiary hearing. The court then scheduled the hearing for March 4, 2024. Following that hearing, which took three days and concluded in May, the trial court issued its order granting Father's petition. The court concluded in relevant part as follows:

42. It is in the best interests of the child to modify primary physical custody from Mother to Father.

43. Mother has moved two times since the parties’ separation, each time a further distance from Father. Each time, Mother failed to file a notice of intent to relocate as required by Ind. Code [section] 31-17-2.2-1. Most notably, in October 2023, Mother moved nearly an hour further from Father's residence while this Petition to Modify Custody was pending and the child was temporarily placed in Father's custody. The child has some family members in the Milwaukee area, but he otherwise does not have any significant connection with the community or the schools in Milwaukee.

44. Mother's current residence will not accommodate the child on a full time basis as she resides with maternal grandmother in a one bedroom duplex.

45. Mother's history with substance abuse and failure to submit to a court ordered drug screen for over three months causes great concern as to Mother's sobriety.

* * *

47. Mother has failed to maintain meaningful contact with the child while he has been in Father's care as she has gone weeks at a time without calling the child.

48. Father has maintained a stable and consistent household and relationship with the child.

49. Father has ensured the child's mental and physical health needs are met.

50. The child has been thriving in Father's care.

51. The child has developed and maintained significant connections with his school, paternal aunt, and paternal great-grandmother while in Father's care.

52. The Court finds the provisions of Ind. Code [section] 31-17-2-21[1] have been met as there has been a substantial change in circumstances regarding the Mother's residence and her ability to safely care for the child. Physical custody shall be modified from Mother to Father.

53. Father shall have primary physical custody of the child with Mother exercising parenting time in accordance with the Indiana Parenting Time Guidelines.

Id. at 63. This appeal ensued.

Discussion and Decision

Standard of Review

[8] In granting Father's petition to modify custody, the court entered findings of fact and conclusions thereon following an evidentiary hearing. In such appeals, we review the court's judgment under our clearly erroneous standard. Jones v. Gruca, 150 N.E.3d 632, 640 (Ind. Ct. App. 2020), trans. denied. “We ‘neither reweigh evidence nor judge witness credibility.’ ” Id. (quoting R.L. v. Ind. Dep't of Child Servs. & Child Advocates, Inc., 144 N.E.3d 686, 689 (Ind. 2020)). Rather, a judgment is clearly erroneous only when there are no record facts that support the judgment or if the court applied an incorrect legal standard to the facts. Id.

[9] Father has not filed an appellee's brief in response to Mother's arguments on appeal. Accordingly, “the trial court's judgment will be reversed” if Mother establishes “prima facie error.” In re Paternity of B.Y., 159 N.E.3d 575, 578 (Ind. 2020). “Prima facie error in this context is defined as, ‘at first sight, on first appearance, or on the face of it.’ ” Trinity Homes, LLC v. Fang, 848 N.E.2d 1065, 1068 (Ind. 2006) (citation omitted).

Issue One: Due Process

[10] Mother first contends that the trial court denied her the right to due process in two respects, namely, when it entered a provisional order modifying custody following a hearing where she was unable to appear and when it delayed its final resolution of Father's petition to modify custody. “Child custody proceedings implicate the fundamental relationship between parent and child, so procedural due process must be provided to protect the substantive rights of the parties.” Bixler v. Delano, 185 N.E.3d 875, 878 (Ind. Ct. App. 2022). Whether a party is denied due process is a question of law, which we review de novo. McClendon v. Triplett, 184 N.E.3d 1202, 1210 (Ind. Ct. App. 2022), trans. denied.

[11] Mother first argues that her due process rights were violated when, following the July 24, 2023, hearing at which she did not appear, the trial court entered a provisional order modifying custody of Child and restricting her parenting time. However, Mother did not pursue an interlocutory appeal of that order, and the trial court has since entered a final custody modification order following an evidentiary hearing. Because we are unable to render her any effective relief, the issue is moot. See Palma v. Keown (In re Paternity of E.B.K.), 242 N.E.3d 500, 511 (Ind. Ct. App. 2024) (citing McDaniel v. McDaniel, 150 N.E.3d 282, 292 (Ind. Ct. App. 2020), trans. denied).

[12] Next, Mother argues that she was deprived of her right to due process when the trial court delayed the final evidentiary hearing on Father's petition. Indiana Code section 31-17-2-6 provides that custody proceedings must receive priority in being set for hearing.

[13] Mother maintains that,

[b]y proceeding to have the July 24, 2023[,] hearing in Mother's absence, it was not until March 4, 2024, that Mother was finally afforded any opportunity to speak on the all-important rights of child custody and parenting time. By the numbers, all told, from Father's initial motion to modify custody on March 6, 2023, until Mother first testified at the March 4, 2024, [hearing,] she was made to suffer in silence for almost an entire year, 364 days before she would have an opportunity to speak at the first custody hearing on March 4, 2024.

Appellant's Br. at 23.

[14] Mother grossly mischaracterizes the procedural history. Yes, the trial court held the July 2023 hearing in Mother's absence and issued a provisional order modifying custody on August 14. But just two weeks after that provisional order, Mother appeared in court for an evidentiary hearing on Father's modification petition, and, rather than taking advantage of her right to present evidence, she moved for a continuance. On November 27, Mother filed another motion to continue the hearing. The court granted that motion and set the evidentiary hearing for March 4, 2024. The hearing began on March 4 and concluded on May 13. The Commissioner signed the final order granting Father's custody modification petition on July 25, and the trial court approved it on August 1.

[15] Mother was not forced to stay “silent” for a full year, as she alleges on appeal. Rather, the trial court scheduled a final evidentiary hearing only two weeks after it had entered the provisional custody modification order. Mother moved to continue that hearing twice, and she cannot now complain about the delay.

[16] We reject Mother's attempt to analogize the delay in this case to the delays in Brown v. Brown, 463 N.E.2d 310 (Ind. Ct. App. 1984), and Wilcox v. Wilcox, 635 N.E.2d 1131 (Ind. Ct. App. 1994). In Brown, we held that the father had been denied due process due to the cumulative effect of three procedural irregularities: a two-month delay following an emergency custody order, his lack of access to a welfare report, and the court's failure to comply with statutory requirements in making its final determination. 463 N.E.2d at 314. In Wilcox, the trial court delayed the final hearing for fifteen months after a temporary change in custody was ordered. 635 N.E.2d at 1137. We observed that, “[a]t no time did Mother seek a continuance of the hearing date; therefore, the delay in the hearing is attributable to the trial court alone.” Id. at 1137. Mother's reliance on these cases is misplaced.

[17] In sum, Mother's appeal of the provisional custody order is moot. And Mother has not shown any violation of her right to due process with respect to the timing of the final evidentiary hearing on Father's modification petition.

Issue Two: Custody Modification

[18] Next, Mother contends that the trial court abused its discretion when it granted Father's petition to modify custody of Child. Indiana Code section 31-14-13-6 requires the party seeking to modify an existing custody order to prove that: (1) modification is in the best interests of the Child; and (2) there has been a substantial change in one or more of the factors set forth in Indiana Code section 31-14-13-2. The factors set forth in Indiana Code section 31-14-13-2 (“Section 2”) are:

(1) The age and sex of the child.

(2) The wishes of the child's parents.

(3) The wishes of the child, with more consideration given to the child's wishes if the child is at least fourteen (14) years of age.

(4) The interaction and interrelationship of the child with:

(A) the child's parents;

(B) the child's siblings; and

(C) any other person who may significantly affect the child's best interest.

(5) The child's adjustment to home, school, and community.

(6) The mental and physical health of all individuals involved.

(7) Evidence of a pattern of domestic or family violence by either parent.

(8) Evidence that the child has been cared for by a de facto custodian, and if the evidence is sufficient, the court shall consider the factors described in section 2.5(b) of this chapter.

[19] It is well settled that evidence of improvement of a child's condition during a temporary change of custody cannot be the basis of a substantial change in one of the above factors. See Joe v. Lebow, 670 N.E.2d 9 (Ind. Ct. App. 1996). In Joe, we held that,

to permit a noncustodial parent to utilize an ex parte order to gain temporary custody of a child, then permit permanent custody to be transferred to that parent based upon evidence of “improvement” in the child's condition while in that parent's temporary care, might tend to encourage noncustodial parents to bring such petitions not on their merits, but as a conduit to obtain temporary custody of a child, then present evidence of such “improvement” as a “back-door” way of relitigating the initial custody determination. As stated, the proper inquiry in a modification hearing under the revised standard is not who would make the “better” parent; rather, the focus is upon whether a substantial change in one of the factors relevant to the determination of a child's best interests has occurred. Thus, we hold that the “substantial change” necessary to support a modification of custody may not be premised upon evidence of improvement in a child's condition while that child has been in the temporary custody of a noncustodial parent.

Joe, 670 N.E.2d at 22 (footnote omitted). A child's improving condition, however, may be part of a trial court's consideration of the child's best interests. Id. at 23.

[20] Mother argues that the trial court here impermissibly relied on improvements in Child's life that have occurred since the provisional change of custody order when it concluded that there had been a substantial change in circumstances to support the modification. Mother is incorrect. While the trial court made findings regarding such improvements, the court explicitly concluded that “there has been a substantial change in circumstances regarding the Mother's residence and her ability to safely care for the child.” Appellant's App. Vol. 2, p. 77.

[21] In support of that conclusion, the trial court found that Mother had moved farther and farther away from Father's home (without first filing notices to relocate as required by statute); Mother does not live independently or have a bedroom for Child; Mother minimizes her history of substance abuse, including evidence that she once had been found passed out at the dining room table in the presence of Child; Mother did not timely comply with the court's order to submit to a hair follicle test; and Mother “does not believe [her past substance abuse] affected her ability to parent the child as she would use while the child was at preschool or with maternal grandfather.” Id. at 75.

[22] Mother also contends that,

[a]side from the fact that the trial court abused its discretion by using supposed improvements the child made during his stay with Father during his temporary custody, the trial court's findings otherwise either exaggerated some evidence, minimized other evidence or just flat out ignored evidence altogether seemingly in an effort to justify finding that there had been substantial and continuing changes that warranted modification of custody in favor of father.

Appellant's Br. at 27. But Mother's argument in support of that contention is merely a request that we reweigh the evidence or reassess witnesses’ credibility, which we will not do on appeal.

[23] For all these reasons, the trial court did not abuse its discretion when it granted Father's petition to modify custody of Child.

[24] Affirmed.

FOOTNOTES

1.   The trial court erroneously cited the statute used in dissolution proceedings. But there is no substantive difference between that statute and the statute that applies to paternity proceedings. Thus, the error is harmless.

Mathias, Judge.

Judges Foley and Felix concur. Foley, J., and Felix, J., concur.