Court of Appeals of Indiana | Memorandum Decision 33A04

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### MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.



### A TTORNEY FOR 

### A PPELLANT Anthony J. Saunders New Castle, Indiana



### I N T H E 

# COURT OF APPEALS OF INDIANA

D.P. , Appellant

- Respondent

,
v. 

### A

. L

. , Appellee

- Petitioner July 5, 2017 Court of Appeals Ca se No. 33A04

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- 323 Appeal from the Henry Circuit Court The Honorable Kit C. Dean Crane, Judge Trial Court Cause No. 33C02

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### Baker , Judge .Court of Appeals of Indiana | Memorandum Decision 33A04

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[1] 

### In April 2010, the marriage of D.P. (Father) and A.L. (Mother) was dissolved. One child, Da.P. (Child), was born of the marriage in October 2006. Pursuant to the dissolution decree, Mother was Child’s primary legal and physical custodian, and Father had parenting time with Child every weekend. In April 2011, Father pleaded guilty to Class D felony sexual battery 1 

### and is required to register as a sex offender until 2021.

[2] 

### On November 20, 2015, Mother filed a petition to, among other things, modify the part ies’ parenting time arrangement. Specifically, she asked that Father’s parenting time be supervised by another adult. At the September 7, 201 6 , hearing on Mother’s motion, Mother testified that the two primary reasons supporting her modification petition are Father’s 2011 sexual battery conviction and an increase in negative behaviors from Child following the weekends he spends with Father. She testified that, after returning from parenting time with Father, Child frequently hits himself and makes statem ents about wishing violence on Father. Tr. p. 8. On one occasion, Child had to be admitted for two weeks at an in patient mental health facility. Id.

[3] 

### Following the hearing, the trial court granted Mother’s motion, finding that “there has been a continuin g and substantial change in circumstances” since the dissolution decree was issued . Appealed Order p. 1. The trial court focused on Father’s 2011 conviction and the requirement that he register as a sex offender

1 The victim was a 16

- year - old individual who is unrelated to this appeal.Court of Appeals of Indiana | Memorandum Decision 33A04

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### as the changed circumstances. The trial c ourt then found that “[i]t is in the best interest of the minor child that [Father’s] overnight parenting time be suspended and [Father] shall have supervised visitation pursuant to the Indiana Parenting Time Guidelines. [Father’s] supervised visitation s hall occur by an adult agreed upon by both parties until further Order of this Court.” Id. Father now appeals.

[4] 

### A decision about parenting time requires us to give foremost consideration to the best interests of the child. Meisberger v. Bishop , 15 N.E.3d 653, 656 (Ind. Ct. App. 2014). In conducting our review, we will neither reweigh evidence nor reassess witness credibility. Id. We will reverse only where the trial court’s decision is clearly against the logic and effect of the facts and circumstances before it or where the trial court errs as a matter of law. Id.

[5] 

### Indiana Code section 31

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The court may modify an order granting or denying parenting time rights whenever modification would serve the best interests of the child. However, the court shall not restrict a parent’s parenting time rights unless the court finds that the parenting time might endanger the child’s physical health or significantly impair the child’s emotional development. We have found in the past that, in ruling on a motion to modify parenting time, the trial court must consider and make a finding as to potential endangerment of the child’s physical health or significant impairment of the child’s emotional development. Me isberger , 15 N.E.3d at 659

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### regarding endangerment of physical health or significant impairment of emotional development) ; Rickman v. Ri ckman , 993 N.E.2d 1166, 1169 (Ind. Ct. App. 2013) (finding that mere fact that father was incarcerated on child molestation charges was insufficient to deny his petition for parenting time modification; further findings and factual basis were needed)

.
[6] 

### Here , as in Meisberger and Rickman , the trial court neglected to include a sufficient factual basis addressing the factors set forth in Indiana Code section 31

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### While the trial court did reach a conclusion regarding the best interests of the child, it did not make a finding regarding endangerment of Child’s physical health or significant impairment of Child’s emotional development. Therefore, we remand for the trial court to determine and make one or more findings on these factors or, in its discretio n, to conduct other proceedings consistent with this opinion.

[7] 

### The judgment of the trial court is remanded with instructions.

Barnes, J., and Crone, J., concur

.

2 We also note that the trial court found a continuing and substantial change in circumstances. To modify parenting time, however, the trial court need not make such a finding, which is required only for modification of custody. See Ind. Code § 31

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