Court of Appeals of Indiana | Opinion 03A05-1601-JP-46 | July 29, 2016 Page 1 of 16

ATTORNEY FOR APPELLANT

R. Patrick Magrath

Alcorn Sage Schwartz & Magrath, LLP

Madison, Indiana

ATTORNEY FOR APPELLEE

Christopher L. Clerc

Columbus, Indiana

IN THE

COURT OF APPEALS OF INDIANA

In re the Paternity of P.B.,

M.L.B.,

Appellant-Respondent,

v.

D.L.B.,

Appellee-Petitioner

July 29, 2016

Court of Appeals Case No. 

03A05-1601-JP-46

Appeal from the Bartholomew 

Circuit Court

The Honorable Jonathan W. 

Webster, Special Judge

Trial Court Cause No. 

03C01-0110-JP-1440

Mathias, Judge.

[1] M.L.B. (“Father”) appeals the order of the Bartholomew Circuit Court denying 

his petition to enforce the trial court’s previous parenting time and reunification 

orders and his petition to hold D.L.B. (“Mother”) in contempt for her failure to 

cooperate with reunification and parenting time. On appeal, Father claims that 

the trial court abused its discretion by failing to enforce its previous orders. 
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[2] We reverse and remand. 

Facts and Procedural History1

[3] This case has a long procedural history, and this is the third time this case has 

come up on appeal to our court. P.B was born in July 2001, and paternity was 

established by agreement between Mother and Father on November 20, 2001. 

Mother was granted primary physical custody of the child, and Father was 

granted parenting time and ordered to pay child support. 

[4] From 2002 to 2004, the parties repeatedly litigated issues regarding parenting 

time and other related matters. In April 2007, the parties again litigated issues 

regarding parenting time, and the trial court found Mother in contempt for 

failing to comply with the court’s parenting time order. In December of 2008,

the parties once again litigated the issue of child support and parenting time, 

and Father was given “make-up” parenting time. 

[5] In 2009, Mother filed a petition for contempt against Father relating to an 

allegation that Father had failed to comply with the parenting time order. On

March 4, 2009, Mother filed an emergency petition to modify and terminate 

Father’s parenting time. This petition referenced allegations that Father had 

held a gun to P.B.’s head and had masturbated in his presence on separate 

occasions in late 2008. These allegations were reported to Child Protective 

 

1 We take much of the background facts from two of our prior decisions in this matter. See In re Paternity of 

P.B., 932 N.E.2d 712, 715 (Ind. Ct. App. 2010); In re Paternity of P.B., No. 03A01-1012-JP-653 (Ind. Ct. App. 

Oct. 12, 2011), aff’d on reh’g (Ind. Ct. App. Dec. 20, 2011). 
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Services (“CPS”), which found them to be unsubstantiated. On March 17, 

2009, Father filed a petition for contempt, apparently related to Mother’s 

alleged interference with and denial of parenting time, and a petition to modify 

parenting time. Father subsequently moved the trial court to appoint a guardian 

ad litem (“GAL”), appoint a counselor to conduct a psychological evaluation, 

and have all parties submit to counseling. On June 1, 2009, the trial court 

denied Father’s request to appoint a GAL and to appoint an evaluative 

counselor. On July 27, 2009, Mother filed another petition for contempt. 

[6] The court held a hearing on these pending motions, and on December 11, 2009, 

entered an order noting that although Mother’s November 17, 2008 petition 

facially sought only to modify parenting time, her request actually sought to 

terminate Father’s parenting time entirely. The trial court concluded that 

because Mother sought to eliminate all of Father’s parenting time, she had to 

demonstrate by “clear and convincing” evidence that termination of parenting 

time was in P.B.’s best interest, similar to the standard used when the State 

seeks to terminate parental rights. Applying this heightened standard to the 

evidence, the court concluded that Mother did not meet that burden and 

ordered that Father have parenting time pursuant to the Indiana Parenting 

Time Guidelines. 

[7] Mother appealed and we reversed, holding that the appropriate burden of proof 

was the preponderance of the evidence standard. See In re Paternity of P.B., 932 

N.E.2d 712, 720 (Ind. Ct. App. 2010). We remanded for the trial court to 

reconsider the matter applying the proper standard. Id. 
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[8] On remand, the trial court held another hearing and issued an order that found 

that, under the less burdensome preponderance of the evidence standard, 

Father’s parenting time should be limited but not eliminated or supervised “to 

allow for [Father] and [P.B.] to slowly reunify their relationship.” The court 

therefore granted father six hours of parenting time every Saturday in addition 

to Christmas Eve and New Year’s Day. 

[9] Mother again appealed, and we affirmed. In re Paternity of P.B., No. 03A01-

1012-JP-653, 2011 WL 4834251 (Ind. Ct. App. Oct. 12, 2011). In so doing, we 

noted that the trial court made no finding that parenting time with Father 

would endanger P.B.’s physical health or well-being or would significantly 

impair his emotional development. Id. at *3. In fact, instead of eliminating 

Father’s parenting time as requested by Mother, the trial court determined that 

Father should have six hours of unsupervised visitation per week. Id. We 

therefore concluded that the trial court “determined that Mother did not meet 

her burden to establish by a preponderance of the evidence that parenting time 

with Father would endanger or impair P.B.” Id. 

[10] Noting the evidence favorable to the trial court’s decision, we held that the trial 

court’s decision to not eliminate Father’s parenting time was not an abuse of its 

discretion.2 Id. 

 

2 This evidence included: 

Here, the allegations of inappropriate touching and disciplinary threats by Father were 

investigated by authorities and determined to be unsubstantiated. Father denied the 
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[11] Unsatisfied with this court’s decision, Mother sought rehearing. However, her 

petition did not point out any legal or factual error in our decision and merely 

asked us to reweigh the evidence. We denied Mother’s request but granted 

rehearing for the limited purpose of awarding Father appellate attorney fees due 

to Mother’s procedural bad faith in filing the petition for rehearing. In re 

Paternity of P.B., 03A01-1012-JP-653, 2011 WL 6660408 (Ind. Ct. App. Dec. 20, 

2011). The trial court subsequently awarded Father $1,024 in attorney fees 

pursuant to our decision on rehearing and appointed a counselor to assist in the 

reunification of Father and P.B. 

[12] Alas, this was not the end of the parties’ conflict. Mother continued to refuse to 

allow P.B. to visit Father. And P.B. began to refuse to visit Father. Therefore, 

 

allegations at the hearing, and P.B. did not testify that Father touched him or disciplined 

him inappropriately. Even though P.B. was alleged to suffer physical symptoms from 

post-traumatic stress syndrome such as urinating or defecating in his pants, his daycare 

records document no such incidents.

Rose Ellen Adams, a licensed social worker and Father’s friend, testified that she would 

not hesitate to leave her own children with Father, and described Father’s involvement in 

P.B.’s life as a non-custodial parent as “admirable.” Based on her observations, Father 

does not discipline P.B. harshly, and instead uses “time out” and “redirection” methods. 

Two teacher aides at P.B.’s school both testified that P.B. was not fearful when 

interacting with Father, and instead appeared happy to see him when Father visited for 

lunch. Two of P.B.’s football coaches also testified and both stated that P.B. did not 

appear afraid of Father. To the contrary, P.B. was very loving towards Father, and the 

two seemed to enjoy a loving father-son relationship.

Father’s brother also testified that P.B.’s relationship with Father is “positive” and that he 

has never observed Father perform any actions around P.B. that would concern him. 

Father’s landlord stated that Father’s discipline of P.B. was “very appropriate” and that 

P.B. had “great respect” for Father. He added that P.B. always seemed happy to be with 

Father, that they got along, and that P.B. was always smiling and happy regardless of 

what they were doing.

Id. (transcript citations omitted). 
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on February 13, 2012, Father filed a citation for contempt against Mother. Two 

days later, Mother filed a petition to modify custody and a citation for contempt 

against Father. The court held a hearing on these and other pending motions 

over three days, and on November 9, 2012, entered the following findings and 

conclusions: 

Findings of Fact

3. In this Court’s Order on Remand of December 8, 2010, 

[Father] was given parenting time as follows . . . . Despite the 

clarity of this Order, [Father] has had no parenting time since December 

25, 2009, because [Mother], by her own frank admission, has not allowed 

it. 

4. In May or June of 2010, [Father] attempted to attend an 

“award ceremony” at [P.B.]’s school. A school official asked him 

to leave, for reasons still unclear, and [Father] left so as not to 

create a scene. 

5. Since the Order on Remand of December, 2010, [P.B.] has 

continued to counsel with William C. “Pete” Link. Mr. Link 

also meets with [Mother], but has never met with [Father]. Mr. 

Link’s basic opinion in 2012 is unchanged from his previous 

opinion that something terribly bad has happened between [P.B.] 

and [Father] and that [Father] have no parenting time with [P.B.] 

and to permit parenting time will devastate [P.B.] 

6. On or about December 19, 2011, on [Father]’s motion, a 

“Reunification Counselor” was requested. On February 23, 2012, 

the Court appointed psychologist Dr. Steven House, Ph.D., 

HSPP, of Columbus. Dr. House filed his forty-five (45) page 

report with this Court on June 19, 2012. . . . 

7. In the end, Dr. House opined that [Mother] is opposed to 

any reunification or parenting time and that if parenting time is 

to occur, it can only be after intervention and he recommended 

Ms. Fran Taylor of Columbus. 
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8. Since December 2009, there have been two remarkable 

events which have occurred in this case: 

A. Another Report to the Indiana Department of Child 

Services, Bartholomew County Office. After the December, 

2009, visit, [Mother] and later, Pete C. Link, reported [Father] to 

the Indiana Department of Child Services, Bartholomew County 

Office, for allegations arising during the visit. As had been the 

case with all of [Mother]’s prior reports, the Bartholomew 

County Office investigated the allegations and determined them 

to be “unsubstantiated”. Despite [Mother]’s best efforts to 

dismiss this finding as vague or meaningless, the Bartholomew 

County Office AGAIN chose to take no action. 

What Ms. Gordon of the Bartholomew County Office did 

recommend to [Mother] and [Father] was that [Mother] take 

[P.B.] to the Child Advocacy Center for further interview and 

investigation. [Mother] has not done so. 

B. Report to the Columbus Police Department. As a result of 

the December 2009 visit, [Mother] also reported [Father] to the 

Columbus Police Department for allegations of inappropriate 

sexual contact with [P.B.]. This occurred on December 28, 2009. 

The Columbus Police Department conducted an investigation 

and found the allegation was without merit. The report was not 

even forwarded to the Bartholomew County Prosecutor’s Office. 

9. [R.B.], [Father]’s brother, testified that during the Christmas 

2009 visit, all was well and saw no reason for concern. 

10. After nearly four (4) [y]ears of accusations, days and days of 

trial time and an appeal to the Indiana Court of Appeals, there 

has yet to be one (1) criminal charge filed against [Father] nor 

any substantiated reports by the Indiana Department of Child 

Services, despite the fact there have been no less than four (4) 

reports made against [Father]. Coupled with this is now eleven 

(11) year old boy who seems to function in his day-to-day life and 

[Father], who by everyone’s account, except [Mother] and [P.B.], 

is a “normal” guy living and working a typical middle class life 

and a loving father. 
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11. [P.B.]’s allegations include [Father] holding a gun to his 

head, sexually molesting him, throwing a chair at him, and 

“infecting” him with scarlet fever, all of which seems greatly out 

of character for [Father] and bizarre, to say the least. Conversely, 

[Mother] and Pete Link insist [P.B.] hates [Father], wants him 

dead, and suffers physically at the sight of [Father]. 

12. [Father] clearly recognizes the problem and has offered to do 

anything to fix it. [Mother], unfortunately, has not. 

Conclusions

* * *

14. Within the next thirty (30) days, [Father] shall arrange for he

and [P.B.] to meet and counsel with Fran Taylor, if requested by 

her, and Fran Taylor shall be permitted to see Mr. Link’s reports, 

if she deems it advisable. 

15. Fran Taylor shall fashion a reunification schedule for 

[Father] and [P.B.], unless she finds reunification is not possible 

or would be harmful to [P.B.]. 

16. [Mother] shall fully cooperate with Fran Taylor, in making 

certain [P.B.] attends all scheduled visits and nothing in this 

Order shall preclude [Mother] from participating with Fran 

Taylor if Fran Taylor believes it helpful. 

17. If not already paid in full, [Mother] shall pay one thousand 

twenty-four dollars ($1,024.00) to [Father’s appellate attorney] by 

November 30, 2012 with eight percent (8%) interest retroactive to 

March 8, 2012. These are the previously ordered appellate 

attorney fees. 

18. [Mother]’s petition to modify is denied. 

19. Both [Mother] and [Father] have willfully disregarded this 

Court’s previous orders. [Mother] by flatly refusing any parenting 

time, and [Father] by non-payment of child support. Both are in 

contempt. Both shall pay their own attorney fees. 

20. [Father] shall continue to pay his child support of one 

hundred seventy-four dollars and fifty cents ($174.50) plus thirty 
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dollars ($30.00) per week on the arrearage of seven thousand six 

hundred seventy-seven dollars and fifty cents ($7,677.50) as of 

and including September 23, 2012. 

21. No youngster should have to endure what [P.B.] has during 

his first eleven (11) years of life. One of his parents, frankly, is, at 

best, a chronic, manipulative liar with no regard for [P.B.]. This 

Court is unable to determine which one it is, but [P.B.] knows 

and soon the day will come when he is old and mature enough to 

tell. Hopefully, the emotional damage will not be so severe that 

he suffers a lifetime from it. 

Appellant’s App. pp. 76-80 (bold emphasis in original, italic emphasis 

supplied). 

[13] The parties subsequently met with the reunification counselor, Ms. Taylor, who 

issued a report to the trial court on March 18, 2013. In her report, Ms. Taylor 

noted the animus between the parties and recommended: (1) P.B. continue 

therapy, (2) “when [P.B.] is ready, [Father] would be introduced into the 

therapeutic setting allowing [P.B.] to express his anger and concerns to his 

father in a therapeutic manner with supervision,” and (3) professionally 

supervised visitation for P.B. and Father when it was deemed appropriate. 

Appellant’s App. p. 82. 

[14] Thereafter, Father filed another contempt citation against Mother, claiming that 

she refused to bring P.B. to the counseling sessions with Ms. Taylor. Mother 

filed her own contempt citation against Father for failure to pay child support 

and denied that she had failed to comply with the court’s earlier order. Ms. 

Taylor then filed an updated report with the trial court, again recommending 
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counseling for Father and P.B. On August 7, 2013, the trial court ordered both 

parents to cooperate and participate with the counselor. 

[15] On October 13, 2013, Mother filed yet another citation for contempt, again 

alleging that Father was in arrears on his child support obligation. Father filed 

another citation for contempt on October 30, 2014, alleging that Mother was 

still failing to cooperate with reunification and obstructing his parenting time. 

At the same time, Father filed petitions to enforce the trial court’s December 8, 

2010 reunification and parenting time order. 

[16] The trial court held a hearing on these pending matters on June 1, 2015. The 

trial court also held an in camera interview with P.B. On July 15, 2015, the trial 

court issued the order that is the subject of the current appeal, which provided 

in relevant part: 

2. [P.B.] turned fourteen (14) . . . and will be an eighth grader at 

[middle school]. He is a physically healthy young man. He is 

well mannered, well spoken and articulate. 

* * *

4. Th[e] [child support] arrearage shall be paid at the rate of 

Thirty and no/100 Dollars ($30.00) per week as previously 

ordered. 
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5. There is no evidence [Mother] is using a name other than 

[P.B.] as ordered by Judge Heimann on December 8, 2008. His 

official school records do not show otherwise.[3]

6. [Father] has not seen his son in a parenting time visit since 

December 2009. In the intervening five (5) years, this Court has 

tried and tried to implement a plan for reunification, all having 

failed for a host of reasons, but most significantly by [P.B.]’s 

refusing to see [Father]. 

7. [Mother] has again made it quite clear she will not abide by any 

Court Order that forces [P.B.] to visit [Father]. 

8. Courts throughout Indiana are faced with the dilemma faced 

by this Court. How do you force parenting time between a 

fourteen (14) year old child and a parent? [P.B.] is presently six 

(6) feet tall. He is a young man. We cannot grab him and force 

him to go. We cannot strap him in his car seat. We cannot keep 

him from running away, if he is forced to go with [Father]. Yet, 

he is the child, not the parent. Could he also abate [Father]’s 

obligation to pay child support? Thus, the dilemma. This Court 

has tried and tried to fashion a remedy, including counseling, and 

without [P.B.] being a willing participant, counseling is a waste 

of time and money. 

9. The Court declines to force parenting time upon a fourteen 

(14) year old young man adamant about having no contact or 

relationship with his Father. 

10.[Father]’s Petition for Citation for Contempt is denied. 

[Father]’s Petition to Enforce Parenting Time Order is denied. 

[Father]’s Petition to Enforce Reunification Order is denied. 

[Father]’s Petition for Citation for Contempt of October 29, 2014 

is denied. [Mother]’s Petition and Application for Citation for 

Contempt for Failure to Pay Child Support is Denied. 

 

3 Contrary to this finding, P.B.’s school records, which were admitted into evidence, show that P.B. was 

registered at school using a compound or hyphenated last name composed of both Mother and Father’s last 

names. Ex. Vol., Respondent’s Ex. B-2. Father makes no claim of error in this regard. 
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11.Each party shall pay their own attorney’s fees and costs 

incurred herein. 

Appellant’s App. pp. 112-13. 

[17] Father filed a motion to correct error on August 14, 2015, and the trial court set 

the matter for a hearing to be held on December 3, 2015. Following the hearing, 

the trial court issued an order denying the motion to correct error on December 

7, 2015. Father now appeals. 

Discussion and Decision

[18] On appeal, Father claims that the trial court erred when it failed to enforce its 

previous visitation orders. Father contends that the effect of the trial court’s 

ruling is to wholly deprive him of parenting time, which is improper without a 

finding that parenting time would endanger P.B.’s physical or mental wellbeing. 

[19] The right of a non-custodial parent to visit with his or her children is a sacred 

and precious privilege, and, ideally, a child should have a well-founded 

relationship with both parents. Appolon v. Faught, 796 N.E.2d 297, 300 (Ind. Ct. 

App. 2003). Accordingly, it has been held that: 

[e]xtraordinary circumstances must exist to deny parenting time 

to a parent, which necessarily denies the same to the child. If the 

trial court finds such extraordinary circumstances do exist, then 

the trial court shall make specific findings regarding its 

conclusion that parenting time would endanger the child’s 

physical health or significantly impair the child’s emotional 

development.
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Perkinson v. Perkinson, 989 N.E.2d 758, 765 (Ind. 2013). This language from 

Perkinson tracks that of Indiana Code section 31-17-4-1, which provides that “[a] 

parent not granted custody of the child is entitled to reasonable parenting time 

rights unless the court finds, after a hearing, that parenting time by the 

noncustodial parent might endanger the child’s physical health or significantly 

impair the child’s emotional development.” Even though the statute uses the 

word “might,” this Court has previously interpreted the language to mean that 

a court may not restrict parenting time unless that parenting time “would” 

endanger the child’s physical health or emotional development. Hatmaker v. 

Hatmaker, 998 N.E.2d 758, 761 (Ind. Ct. App. 2013). 

[20] The party who seeks to restrict a parent’s visitation rights bears the burden of 

proving by a preponderance of the evidence a justification for such a restriction. 

Id. As in all parenting time controversies, courts are required to give foremost 

consideration to the best interests of the child. Id. On appeal, we review and 

will reverse a trial court’s determination of a parenting time issue only for an 

abuse of discretion. Id. 

[21] Father claims that this appeal is about his being deprived parenting time. 

Mother, however, claims it is simply about the trial court exercising its 

discretion to not find her in contempt. We think these two issues are 

inextricably interwoven in the present case because of Mother’s long and 

admitted history of interfering with Father’s parenting time. Thus, Father’s 

request to hold Mother in contempt was an effort to enforce the already existing
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order that he have parenting time. We therefore address both the issues of 

parenting time and contempt. 

[22] We first note that it is apparent from the face of the trial court’s order that the 

court did not find that parenting time by Father would endanger the P.B.’s 

physical health or significantly impair P.B.’s emotional development. Indeed, 

this court has already viewed the trial court’s December 2009 order as not

finding that P.B.’s physical health would not be endangered and his emotional 

development would not be significantly impaired by parenting time with 

Father. See In re Paternity of P.B., No. 03A01-1012-JP-653, 2011 WL 4834251 at 

*3. The trial court reaffirmed this view in its order of November 2012, when it 

yet again denied Mother’s request to deny Father parenting time. In its most 

recent order, the trial court does not suggest it has suddenly concluded 

otherwise. 

[23] The trial court also found, however, that Father has not had parenting time 

with P.B. since December 2009. Although part of this is obviously due to P.B.’s 

desire, rightly or wrongly, not to see his father, a great portion of it must be

placed at the feet of Mother. From December of 2009, Mother has completely 

denied Father court-ordered parenting time. Indeed, the trial court specifically 

found in its 2012 order that Father had not had any parenting time because of 

Mother’s “frank admission” that she had not allowed it. Again in its most 

recent order, the trial court specifically found that Mother “will not abide by 

any Court Order that forces [P.B.] to visit [Father].” Appellant’s App. p. 112. 
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[24] In light of this stark admission, we are at a loss as to why the trial court found 

that Mother was not in contempt. She has, over the past several years, 

repeatedly and flagrantly disobeyed the trial court’s parenting time orders, 

orders that have been affirmed on appeal by this court. Under these facts and 

circumstances, we have little choice but to conclude that the trial court abused 

its discretion when it concluded that Mother was not in contempt for failing to 

abide by the trial court’s previous parenting time and reunification orders. On 

remand, the trial court should determine what sanction is appropriate to 

remedy Mother’s obstinate disregard for the trial court’s authority. 

[25] While we sympathize with the dilemma with which the trial court was faced, 

the proper solution was not to refuse to enforce its orders. Instead, the trial 

court should have used its authority to ensure that its orders are obeyed and not 

disregarded as mere suggestions. No one, especially not a parent, should be 

under the impression that compliance with the trial court’s parenting time order 

is optional. 

[26] Because the trial court declined to enforce its earlier parenting time order, 

Father is left with no parenting time. Yet, as noted above, no finding would 

support the deprivation of Father’s parenting time. It is obvious that this is a 

difficult situation. Either Father abused his son or he did not. However, no 

charges have ever been filed against Father for his alleged behavior. In fact, all 

of the investigations have determined that the reports were unsubstantiated. 

More importantly, the trial court has never found that parenting time with 

Father would be harmful to P.B. Instead, the trial court has repeatedly declined 
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to deprive Father of parenting time and, instead, has ordered a process of 

gradual reunification. However, this reunification cannot take place unless the 

trial court’s orders are enforced and obeyed. 

[27] We therefore conclude that the trial court’s order currently on appeal must be 

reversed. The trial court abused its discretion in concluding that Mother was 

not in contempt for her admitted refusal to follow the clear mandate of the trial 

court’s earlier orders. If Father is to be deprived of his right to parenting time 

with his son, the law requires a finding that such parenting time would 

endanger his physical health or significantly impair his emotional development, 

but no such finding is in the record. We therefore reverse the trial court’s order 

and remand with instructions that the trial court enter a contempt sanction 

against Mother that will be sufficient to enforce its parenting time order. 

[28] Reversed and remanded for proceedings consistent with this decision. 

Vaidik, C.J., and Barnes, J., concur.