IN RE: L.C. (Minor Child) (2025)

MEMORANDUM DECISION

Statement of the Case

[1] E.M. (“Mother”) appeals the trial court's order that modified custody of her son, six-year-old L.C. (“L.C.”), in favor of B.C. (“Father”).¹ She argues that the trial court abused its discretion when it modified custody of L.C. in favor of Father. Concluding that the trial court did not abuse its discretion, we affirm the trial court's judgment.

We affirm.

Issue

Whether the trial court abused its discretion when it modified custody of L.C. in favor of Father.

Facts

[2] Mother and Father are the parents (collectively, “Parents”) of L.C., who was born in September 2017. L.C. was Mother's first child. Parents are not married but lived together with L.C. in a home that Father had purchased. A year or so following L.C.’s birth, Father noticed that Mother began suffering from mental health issues. Specifically, then forty-two-year-old Mother began demonstrating “the inherent need and obsession to have more children at any cost.” (Tr. Vol. 2 at 119). Over the ensuing years, when Mother failed to become pregnant, Mother's cognitive and emotional abilities began to deteriorate, and she developed an unhealthy obsession with L.C.

[3] In October 2023, Father returned home to find that Mother, who had started her period, had smeared a bloody tampon on Parents’ bed and had written “on the wall ‘not pregnant’ with her own blood.” (Tr. Vol. 2 at 128). Also, in October 2023, Mother pointed a loaded firearm at Father. As Mother and Father struggled for the firearm, Mother discharged the firearm into the floor while L.C. was in the home. Father immediately drove Mother to a stress center because he believed that she needed mental health treatment. However, Mother refused to be admitted to the stress center, and Parents returned home. When Mother began looking for the firearm, Father contacted law enforcement officers.

[4] That same day, the State charged Mother under Cause Number 7560 (“Cause Number 7560”) with multiple felonies and misdemeanors for discharging the firearm (“the criminal case”). In addition, the trial court issued an order prohibiting Mother from having contact with Father. Following Mother's arrest, L.C.’s co-op preschool (“the co-op preschool”) required L.C. to leave the school because of Mother's criminal charges.

[5] In November 2023, DCS filed a petition alleging that L.C. was a CHINS. DCS also removed L.C. from Parents’ home and placed him with paternal grandmother (“paternal grandmother”). In December 2023, DCS filed an amended CHINS petition. Later that month, the trial court returned L.C. to Father's care, and Father and L.C. returned to Father's home.

[6] In December 2023 or January 2024, Father registered L.C. in a Montessori preschool (“the Montessori”). At that time, Father told staff at the Montessori that he was the only parent who had the authority to drop off or pick up L.C. Two weeks later, in January 2024, Mother went to the Montessori, waited in her car during drop-off time, and then exited her vehicle to speak with L.C. Montessori staff contacted law enforcement, who arrived and detained Mother. In addition, Montessori staff subsequently advised Father that L.C. was not allowed to return to the school because the staff had safety concerns for the other children.

[7] The following day, DCS filed a motion to suspend Mother's visits with L.C. In its motion, DCS alleged that in addition to Mother visiting the Montessori, Mother's visitation supervisor had expressed concerns with Mother's behaviors during her visits with L.C. For example, Guardian Ad Litem Diane Crider (“GAL Crider”) had noticed during a supervised visit that Mother and L.C. were “bonded to an almost obsession by [Mother].” (Tr. Vol. 2 at 133). According to GAL Crider, during the visit, Mother had six-year-old L.C. sit on her lap to do everything and was constantly touching him. A few times, L.C. pushed Mother away, but Mother “would go back doing it again.” (Tr. Vol. 2 at 134). In addition, Mother automatically accompanied L.C. to the bathroom. GAL Crider thought it was “odd that a six[-]year[-]old needed his mother in the bathroom without asking for help.” (Tr. Vol. 2 at 133). The trial court granted DCS’ motion and suspended Mother's visits with L.C. Also, in January 2024, Mother participated in a forensic interview with a Dr. Westmoreland (“Dr. Westmoreland”), who recommended that Mother participate in an inpatient or an intensive outpatient treatment program.

[8] In February 2024, Father filed a verified motion asking the trial court to assume temporary jurisdiction over his pending paternity action and to enter custody and parenting time orders relating to L.C. In his motion, Father explained that because no custody order had been entered in the paternity action, pursuant to statute Mother had legal custody of L.C.² In addition, Father alleged that “[a] substantial and continuing change in circumstances ha[d] occurred which no longer ma[de] the present custodial arrangement reasonable or in [L.C.]’s best interest[s].” (App. Vol. 2 at 41). Father asked the trial court to award him sole legal and physical custody of L.C. In addition, Father stated that if the trial court modified custody of L.C. in Father's favor, the necessity of the on-going CHINS case would be obviated.

[9] In July 2024, the trial court held a hearing on Father's custody modification motion. Father testified that after Montessori staff had asked L.C. to leave the Montessori, Father had enrolled L.C. in a public school. Father further testified that L.C. had done well in the public school and was attending enrichment camps that summer. Father also testified that he is a television producer and that his employer understood his situation and had been flexible with Father's schedule. According to Father, although he sometimes had to travel for his job, paternal grandmother and maternal grandparents had taken care of L.C. while Father was gone.

[10] Father, who has a thirteen-year-old son and a twenty-year-old son from previous relationships, further testified that L.C. enjoyed spending time with his brothers. According to Father, he and L.C. participated in activities together, including riding bicycles, visiting the library, and playing video games. In addition, L.C. participated in baseball, swimming lessons, and karate. Father also testified that L.C. participated in therapy and was “very healthy, very happy, and ․ thriving.” (Tr. Vol. 2 at 116). In addition, Father testified that he believed that Mother had an “unhealthy obsession” with L.C. (Tr. Vol. 2 at 119).

[11] GAL Crider testified that Mother had not been willing to speak to her because Mother believed that GAL Crider had “been compromised.” (Tr. Vol. 2 at 132). GAL Crider further testified that the last time that she had spoken to Mother had been in May 2024, two months before the custody modification hearing. At that time, Mother had told GAL Crider never to call her again and had hung up the telephone on GAL Crider.

[12] DCS family case manager Holly Smith (“FCM Smith”) testified that, during the pendency of the CHINS proceedings, Mother had rarely responded to FCM Smith's text messages, phone calls, and email. In addition, Mother had never signed releases so that FCM Smith would have been able to speak with Mother's treatment providers. FCM Smith further testified that it was in L.C.’s best interests for Father to have custody of him.

[13] Mother also testified at the hearing. Specifically, she explained the bond that she shares with L.C. as follows:

It is hard to I guess put that into words because our bond is beyond that. It's intangible. I mean we love each other very, very much. He can finish my sentences. It's adorable, he started doing that at age three. So he can pretty much read my mind. I can read him, he doesn't even need to talk to me, we have a nonverbal communication we're so close.

(Tr. Vol. 2 at 179). In addition, Mother testified that, in her relationship with six-year-old L.C., there was “a lot of physical touch so we both enjoy that physical touch, it connects us.” (Tr. Vol. 2 at 179).

[14] Mother further testified that she was living in a domestic violence shelter in Ohio and that L.C. would be able to live with her in the shelter. When asked if she “honestly believe[d] it [was] in [L.C.]’s best interest that he live in a ․ shelter in ․ Ohio, away from all of his family rather than the residence that he grew up in[,]” Mother responded, “Yes.” (Tr. Vol. 2 at 183). Mother further explained that she had refused to speak with GAL Crider because GAL Crider had once said something during a telephone call that was “a red flag” for Mother. (Tr. Vol. 2 at 185).

[15] In addition, Dr. Kristen Varian (“Dr. Varian”), a psychologist who had been seeing Mother since March 2024, testified on Mother's behalf. According to Dr. Varian, she had diagnosed Mother with post-traumatic stress disorder, generalized anxiety disorder, major depressive disorder, recurring episodes of moderate separation anxiety disorder, ADHD, and psychophysiological insomnia. Dr. Varian further testified that she did not believe that Mother needed inpatient or intensive outpatient care.

[16] In addition, Dr. Varian testified that she was aware of Mother's criminal charges. However, Dr. Varian further testified that, based on what Mother had told her “about the situation in which the weapon [had been] discharged,” Dr. Varian did not have “concerns about [Mother's] ability to be an effective and impactful parent.” (Tr. Vol. 2 at 144). When asked what Mother had told her about the discharge of the firearm, Dr. Varian responded, “[f]rom what I know, the weapon was discharged in kind of a scuffle regarding the weapon[.]” (Tr. Vol. 2 at 144). During cross-examination, Dr. Varian acknowledged that she was not “aware of any of [Mother's] conduct outside of what [Mother was] reporting to [her].” (Tr. Vol. 2 at 151). Dr. Varian further acknowledged that she had never seen Mother interact with L.C.

[17] Mother's former spouse and two parents from the co-op school also testified on Mother's behalf. Mother's former spouse, who lived in California and who had only observed Mother's interaction with L.C. during video calls, testified that the interaction between Mother and L.C. had not concerned him or raised any red flags. In addition, one of the parents testified that Mother and L.C. had a bond. However, during cross-examination, that parent testified that she had not spoken to Mother for over a year and acknowledged that she had not been aware that Mother had been charged with “a felony of an unlawful discharge of a firearm around a minor child[.]” (Tr. Vol. 2 at 162). The other parent testified that Mother was a “great parent[.]” (Tr. Vol. 2 at 167). However, during cross-examination, she acknowledged that she had not known that L.C. had been asked to leave the co-op school because of Mother's behavior.

[18] At the end of the hearing, the trial court stated as follows:

So we have talked multiple times today about the criminal case pending so I am just going to state for the record that I am going to take judicial notice of that pending criminal case because we have talked about it multiple times today. That is, I'm just taking judicial notice of the pendency. It's [Cause Number 7560].

(Tr. Vol. 2 at 201). Mother did not object to the trial court taking judicial notice of the criminal case.

[19] In July 2024, the trial court issued an order granting Father's motion to modify custody of L.C. The trial court's order, which did not contain specific findings of fact and conclusions thereon, provides, in relevant part, as follows:

ORDER ON CUSTODY, PARENTING TIME, AND CHILD SUPPORT

* * * * *

․ The Court has considered the relevant factors, including the evidence, exhibits, and testimony of the witnesses. The Court has also considered the credibility and the demeanor of the witnesses in determining the following:

* * * * *

4. Court took judicial notice of cause number [7560], and the Court takes judicial notice of cause number ․ [RF-007571] [(“the red flag law case”)][3], and the Order issued by the Court on June 7, 2024, finding Mother to be “dangerous” as defined by I.C. 35-47-14-1.

* * * * *

9. It is [L.C.]’s best interest for [Father] to have sole physical and legal custody of [L.C.]

(App. Vol. 2 at 51, 52).

[20] Mother now appeals.

Decision

[21] Mother argues that the trial court abused its discretion in modifying custody of L.C. in favor of Father. We disagree.

[22] At the outset, we note that there is a well-established preference in Indiana “ ‘for granting latitude and deference to our trial judges in family law matters.’ ” Steele-Giri v. Steele, 51 N.E.3d 119, 124 (Ind. 2016) (quoting In re Marriage of Richardson, 622 N.E.2d 178, 178 (Ind. 1993)). In this regard, the Indiana Supreme Court has explained as follows:

Appellate deference to the determinations of our trial court judges, especially in domestic relations matters, is warranted because of their unique, direct interactions with the parties face-to-face, often over an extended period of time. Thus enabled to assess credibility and character through both factual testimony and intuitive discernment, our trial judges are in a superior position to ascertain information and apply common sense, particularly in the determination of the best interests of the involved children.

Best v. Best, 941 N.E.2d 499, 502 (Ind. 2011).

[23] We further note that the trial court in this case did not enter specific findings and conclusions thereon. We have long held that trial courts are not required to enter specific findings and conclusions thereon when modifying custody. Matter of Paternity of A.R.S., 198 N.E.3d 423, 431 (Ind. Ct. App. 2022). “Indeed, the plain language of the statute only requires a court to ‘consider’ the factors [set forth below], not to make a finding regarding each one.” Id. (cleaned up). Instead, specific findings are required only if requested in writing pursuant to Indiana Trial Rule 52(A). Id. Here, neither party made such a request.

[24] Although the trial court was not required to enter specific findings and conclusions thereon, we note that such findings are helpful to us as the reviewing court and to the parties. Id. Specific findings, especially when they cite to the relevant statutes, give us confidence that the trial court considered the requisite factors when modifying custody. Id.

[25] Still, we presume that trial courts know and follow the law. Id. “We will overlook this presumption only if the trial court's order leads us to conclude that an unjustifiable risk exists that the trial court did not follow the applicable law.” Id. (cleaned up). Absent clear indications to the contrary, we presume that the trial court considered all the relevant statutory factors when making its decision to modify custody of L.C. in favor of Father. See id.

[26] Because the trial court did not issue specific findings and conclusions thereon, we apply a general judgment standard. Id. at 430. Under this standard, we will reverse the award of custody only if the trial court's determination is clearly against the logic and effect of the facts and circumstances or the reasonable inferences to be drawn therefrom. Id. We will not reweigh the evidence or judge the credibility of witnesses. In re Paternity of C.S., 964 N.E.2d 879, 883 (Ind. Ct. App. 2012), trans. denied.

[27] Further, in order to reverse a trial court's custody determination, it is not enough that the evidence might have supported a different conclusion. Montgomery v. Montgomery, 59 N.E.3d 343, 350 (Ind. Ct. App. 2016), trans. denied. Rather, the evidence “must positively require the conclusion contended for by appellant before there is a basis for reversal.” Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002).

[28] Finally, because Father has not filed an appellee's brief, “we apply a less stringent standard of review with respect to the showing necessary to establish reversible error.” In re Paternity of S.C., 966 N.E.2d 143, 148 (Ind. Ct. App. 2012), aff'd on reh'g, 970 N.E.2d 248 (Ind. Ct. App. 2012), trans. denied. “In such cases, we may reverse if the appellant establishes prima facie error, which is an error at first sight, on first appearance, or on the face of it.” Id. “Moreover, we will not undertake the burden of developing legal arguments on the appellee's behalf.” Id. We now turn to Mother's argument that the trial court abused its discretion when it modified custody of L.C. in favor of Father.

[29] Indiana Code § 31-14-13-6 provides that a trial court may not modify an existing child custody order unless: (1) the modification is in the best interests of the child; and (2) there has been a substantial change in one or more of the statutory factors listed under INDIANA CODE § 31-14-13-2. These factors include:

(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[.]

Ind. Code § 31-14-13-2. A change in circumstances must be judged in the context of the whole environment, and it is the effect upon the child that renders a change substantial or inconsequential. In re Paternity of Winkler, 725 N.E.2d 124, 128 (Ind. Ct. App. 2000).

[30] Here, Mother specifically contends that “[t]he Trial Court Abused its Discretion Due to Insufficient Evidence to Support that a Substantial Change in Circumstances Existed[.]” (Mother's Br. 12). However, our review of the evidence reveals that, pursuant to statute, Mother had had custody of L.C. since his birth in September 2017. However, following L.C.’s birth, Mother began to develop mental health issues, which led to criminal charges after she fired a gun while L.C. was in the home. Mother's mental health issues have also led to L.C. being asked to leave two schools and to the suspension of Mother's parenting time with L.C. Despite these mental health issues, Mother failed to follow Dr. Westmoreland's recommendation that she attend inpatient or intensive outpatient treatment. Mother also refused to talk to GAL Crider and told GAL Crider never to contact her again. Further, despite attending therapy with Dr. Varian, Mother failed to sign releases so that GAL Crider and FCM Smith could have spoken to Dr. Varian. This evidence supports the trial court's finding that there was a substantial change in one or more of the factors listed in Indiana Code § 31-14-13-2.

[31] Mother also contends that “[t]he Trial Court Abused its Discretion Due to Insufficient Evidence to Support that ․ Modification was in [L.C.]’s Best Interests.” (Mother's Br. 12). However, our review of the record reveals that L.C. has a close relationship with Father and enjoys spending time with his brothers. When Father has to travel for his job, L.C. is able to spend time with paternal grandmother and maternal grandparents. We further note that Father has financial stability and that he and L.C. live in Father's home where L.C. has lived his entire life. Father and L.C. participate in activities together, including riding bikes, going to the library, and playing video games. In addition, L.C. is involved in activities, including baseball, swimming lessons, and karate. L.C. has done well in school and is participating in therapy. Further, FCM Smith testified that it was in L.C.’s best interests for Father to have custody of him. The totality of this evidence supports a determination that a modification of custody was in L.C.’s best interests.

[32] Mother's reliance on the testimony of Dr. Varian, Mother's former husband, and the two parents is an invitation for us to judge the credibility of witnesses and reweigh the evidence, which we cannot do. See Paternity of C.S., 964 N.E.2d at 886. The trial court did not abuse its discretion in modifying custody of L.C. in favor of Father.⁴

[33] Affirmed.

FOOTNOTES

1.   This custody action arose in a child in need of services (“CHINS”) proceeding. See Ind. Code § 31-30-1-13. DCS filed an appellee's brief to address Mother's judicial notice arguments, which we discuss in a footnote below. Father did not file an appellee's brief.

2.   See Ind. Code § 31-14-13-1.

3.   “ ‘Red flag laws’ generally allow law enforcement to seek a court order temporarily restricting a person's access to firearms if that person shows ‘red flags’ of being a threat of danger to themselves or others.” Redington v. State, 121 N.E.3d 1053, 1054 (Ind. Ct. App. 2019).

4.   Mother also argues that the trial court abused its discretion when it took judicial notice of the criminal case and the red flag case. However, we need not determine whether the trial court abused its discretion because even if it did, “[a]n error in taking judicial notice is subject to a harmless error analysis.” Campbell v. Shelton, 727 N.E.2d 495, 502 (Ind. Ct. App. 2000), reh'g denied, trans. denied. Our Indiana Supreme Court has explained that the harmless-error analysis is found in Appellate Rule 66(A). Hayco v. State, 211 N.E.3d 483, 492 (Ind. 2023), reh'g denied, cert. denied. Specifically, Appellate Rule 66(A)’s “probable impact test” controls. Id. “Under this test, the party seeking relief bears the burden of demonstrating how, in light of all the evidence in the case, the error's probable impact undermines confidence in the outcome of the proceeding below.” Id. “Ultimately, the error's probable impact is sufficiently minor when – considering the entire record – our confidence in the outcome is not undermined.” Id. Here, applying the probable impact test, we conclude that when considering the entire record in this case, our confidence in the trial court's judgment modifying custody of L.C. in favor of Father is not undermined. Accordingly, any error in the trial court's taking of judicial notice was harmless.Mother also argues that “[t]he trial court violated [her] due process rights to a fair proceeding and an opportunity to be heard by its improper use of judicial notice[.]” (Mother's Br. 3). “Generally stated, due process requires notice, an opportunity to be heard, and an opportunity to confront witnesses.” In re Adoption of K.M., 31 N.E.3d 533, 536 (Ind. Ct. App. 2015) (cleaned up). Here, Mother received due process at the custody hearing. Specifically, Mother received notice of the hearing, testified at the hearing, and had an opportunity to confront witnesses. We find no violation of Mother's due process rights.

Pyle, Judge.

Judges Weissmann and Felix concur. Weissmann, J., and Felix, J., concur.