Court of Appeals of Indiana | Memorandum Decision 27A05-1706-JP-1382 | March 13, 2018 Page 1 of 13

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.

ATTORNEY FOR APPELLANT

David M. Payne

Ryan & Payne

Marion, Indiana

ATTORNEY FOR APPELLEE

William T. Myers

Marion, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

In re the Paternity of G.A.M. 

and G.A.M. (Minor Children):

Whitney McCreary,

Appellant-Petitioner,

v.

Raphael Ramirez,

Appellee-Respondent.

March 13, 2018

Court of Appeals Case No.

27A05-1706-JP-1382

Appeal from the Grant Superior 

Court

The Honorable Dana J. 

Kenworthy, Judge

The Honorable Brian F. McLane, 

Magistrate

Trial Court Cause No.

27D02-1304-JP-37

Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 27A05-1706-JP-1382 | March 13, 2018 Page 2 of 13

Case Summary

[1] Whitney McCreary (“Mother”) appeals a modification of custody order 

regarding her twin children, G.A.M. (“Son”) and G.A.M. (“Daughter”)

(collectively “the children”). The sole, restated issue she raises is whether the 

trial court clearly erred when it granted Raphael Ramirez’s (“Father”) petition 

to modify child custody.

[2] We affirm.

Facts and Procedural History

[3] Mother and Father are the biological parents of the children, who were born on 

February 23, 2013. Father’s paternity of the children was established in 

February of 2015, following which the trial court awarded Mother physical 

custody of the children and Father parenting time pursuant to the Indiana 

Parenting Time Guidelines. 

[4] On September 19, 2016, Father filed an emergency petition for child custody. 

The trial court appointed a guardian ad litem (“GAL”), and, in a consent order 

dated November 2, 2016, the trial court awarded the parties joint legal custody 

and awarded Father supplemental parenting time that included make-up 

parenting time. The GAL filed her report with the court on April 21, 2017, and 

the trial court held a hearing on Father’s petition to modify custody on May 2. 

On May 31, 2017, the trial court entered its Order on Custody, Parenting Time 
Court of Appeals of Indiana | Memorandum Decision 27A05-1706-JP-1382 | March 13, 2018 Page 3 of 13

and Child Support, in which it made the following relevant findings of fact and 

conclusions of law:

Findings of Fact

4. Mother currently resides with her mother in a home in 

Marion, Indiana. She has resided there for three years. 

She resides there with her mother and the parties’ two 

children.

5. Mother has not been employed since June 2016.

6. Father resides in Indianapolis in a three[-]bedroom home. 

His mother lives in Avon, Indiana.

7. Father is employed at a software company in Indianapolis.

8. Father began seeing the children when they were about 8 

to 9 months old.

9. [Son] has special needs. He is delayed in his speech and 

social skills and has demonstrated characteristics of autism 

and seizure disorder. The child’s physician had referred 

the child to First Steps and Easter Seals, but Mother did 

not follow up with services. The child began services at 

First Steps but Mother was not pleased with the schoollike setting and removed the child. This occurred in early 

2016 and Mother has not restarted services for the child 

since that time.

10. Mother alleged Father had sexually/physically abused 

[Daughter]. This matter was referred to the Department of 

Child Services and was unsubstantiated by them. Mother
Court of Appeals of Indiana | Memorandum Decision 27A05-1706-JP-1382 | March 13, 2018 Page 4 of 13

still believes that Father has sexually molested the child, 

regardless of what the investigation determined. Mother 

had shown the 4-year-old girl a picture of a man’s penis 

and asked her to identify it.

11. Mother has demonstrated behaviors that are concerning to 

the court. Specifically:

a. Mother has demonstrated indications of paranoia. 

Mother believed that coworkers were talking about her but 

there was no evidence provided to substantiate this claim. 

Mother went so far as to make a police report on the

situation, but she does not recall making that report. 

Mother referred to the incident as one involving “childish 

stalking.” Further, Mother believes that someone has 

“hacked” her computer and statements made by her would

automatically be uploaded to the website, Pinterest. In 

June 2016[,] Mother indicated to Father that she was being 

stalked by undercover agents. She indicated that special 

agents were following her and she was afraid they would

attack the twins. She told Father “(A)sk God to pray for 

me.”

b. At an exchange of the children, Mother asked 

[Daughter], “Is Daddy touching you[r] cuckoo again?” 

There was contradictory testimony, but Mother allegedly

threw rocks with words “Faith” and “Wisdom” at Father’s 

feet. Mother allegedly then pulled a bat from the trunk of 

her car and [Daughter] intervened. Mother denies these 

allegations but the court finds Father’s testimony

persuasive.

c. Mother has called Father at midnight or 1 AM and has 

accused him of harming the children.
Court of Appeals of Indiana | Memorandum Decision 27A05-1706-JP-1382 | March 13, 2018 Page 5 of 13

d. Mother communicated to Father that she was “(t)rying 

to get right with God so I can hold the twins[’] hands as 

they go into heaven.”[

1

]

Conclusions of Law[

2

]

12. Indiana Code §31-14-13-2 provides that a court shall 

determine custody in accordance with the best interests of 

the child, and sets forth multiple factors to be considered 

in this determination ...

13. The children [are] a boy and girl, both 4 years of age.

14. Both parents would like the children to reside with them. 

Due to the children’s young age, no weight is given to 

their wishes at this time.

15. The children seem to have a good relationship with both 

parents and the parties’ mothers.

16. Mother[’s] mental health is a significant concern. Mother 

has demonstrated irrational behaviors. Mother is 

convinced that Father has abused the children, especially

[Daughter]. Mother has gone so far as to show the child a 

[photograph of a] man’s penis in an attempt to prove the 

 

1

 The GAL report stated that Mother’s text to Father “said something such as ‘trying to get right with God 

so I can hold the twins[’] hands on our way to Heaven.” Appellant’s Confid. Supp. App. Vol II at 17

(emphasis added).

2

 We note that paragraphs 13-15 and 17 are findings of fact, even though they are listed under “conclusions 

of law.” And paragraph 16 contains mixed factual findings and legal conclusions. We treat all findings of 

fact as such, even if they are contained in the conclusions of law section of the opinion. See Coachman Indus., 

Inc. v. Crown Steel Co., 577 N.E.2d 602, 605 (Ind. Ct. App. 1991) (citing In re Marriage of Miles, 362 N.E.2d 171 

(Ind. Ct. App. 1977), trans. denied) (holding facts not stated in findings may be supplied by conclusions of 

law).
Court of Appeals of Indiana | Memorandum Decision 27A05-1706-JP-1382 | March 13, 2018 Page 6 of 13

child was molested. Mother believes she has been stalked 

by agents, and that her statements are being automatically 

uploaded to the web. Mother has acted violently toward 

Father in the presence of the children. Mother’s absolute 

belief that Father is a danger to the children has resulted in 

her acting in a manner that threatens the children’s

emotional development.

17. Mother is unable or unwilling to seek needed medical 

treatment for [Son].

18. For the foregoing reasons the court finds that there is a 

substantial change of circumstances in the children’s 

relationship with both parents, and Mother’s demonstrated 

lack of emotional stability. It is in the best interests, and 

the court orders, that custody be modified. Father is 

awarded custody of both children.

19. Further, the court finds that unrestricted parenting time 

would pose a substantial risk to the children’s emotional 

development and physical well-being. Mother is directed 

to obtain a psychological evaluation prior to a parenting 

time schedule being arranged. Given the restriction in 

Mother’s parenting time, the court names the paternal

grandmother as the temporary guardian in the event 

Father is unable to care for the children.[

3

]

***

 

3

 On February 16, 2018, Father filed a “Supplemental Memorandum” in this Court related solely to the 

parenting time order. However, Mother does not appeal the trial court’s parenting time order. Moreover, 

Father has no authority for the filing. See Ind. Appellate Rules 45, 46, 47. Therefore, we granted Mother’s 

Motion to Strike Appellee’s Supplemental Memorandum. 
Court of Appeals of Indiana | Memorandum Decision 27A05-1706-JP-1382 | March 13, 2018 Page 7 of 13

Appellant’s App., Vol. II at 95-100. This appeal ensued. We provide 

additional facts as necessary.

Discussion and Decision

[5] Mother asserts that the trial court erred when it modified the parties’ custody

order from joint legal custody—with Mother having physical custody—to 

Father having sole custody. Our standard of review in a custody modification 

is generally for abuse of discretion. J.B. v. S.W. (“In re Paternity of G.G.B.W.”), 

80 N.E.3d 264, 271 (Ind. Ct. App. 2017), trans. denied. However, when the trial 

court sua sponte enters findings and conclusions pursuant to Indiana Trial Rule 

52, as it did here,4 we apply a two-tiered standard of review to any issue covered 

by the findings. Steele-Giri v. Steele, 51 N.E.3d 119, 123 (Ind. 2016). That is, we 

look to “whether the evidence supports the findings, and whether the findings 

support the judgment.” Id. “Any issue not covered by the findings is reviewed 

under the general judgment standard, meaning a reviewing court should affirm 

based on any legal theory supported by the evidence.” Id. at 123-24.

[6] In conducting our review, we “are not to reweigh the evidence.” Id. at 124. 

And we “consider only the evidence and reasonable inferences that are most 

favorable to the judgment,” In re V.A., 51 N.E.3d 1140, 1143 (Ind. 2016), giving 

“due regard . . . to the opportunity of the trial court to judge the credibility of 

 

4

 The record does not disclose, and the parties do not tell us, whether either party requested findings. 

Therefore, we assume the trial court entered findings sua sponte.
Court of Appeals of Indiana | Memorandum Decision 27A05-1706-JP-1382 | March 13, 2018 Page 8 of 13

the witnesses,” T.R. 52(A). Moreover, we “shall not set aside the findings or 

judgment unless clearly erroneous.” Id. A trial court’s findings are clearly 

erroneous when the record contains no facts to support them either directly or 

by inference; a judgment is clearly erroneous if it applies the wrong legal 

standard to properly found facts. Town of Fortville v. Certain Fortville Annexation 

Territory Landowners, 51 N.E.3d 1195, 1198 (Ind. 2016). Ultimately, we will 

reverse only upon a showing of clear error: “that which leaves us with a definite 

and firm conviction that a mistake has been made.” Egly v. Blackford Cty. Dep’t 

of Pub. Welfare, 592 N.E.2d 1232, 1235 (Ind. 1992).

[7] In In re Paternity of G.G.B.W., 80 N.E.3d at 271-72, we noted that the trial court 

must consider three statutes when modifying legal custody in a paternity case: 

Indiana Code Sections 31-14-13-6, -2, and 2.3(c).

5

Indiana Code Section 31-14-

13-6 states in relevant part:

(a) The court may not modify a child custody order unless:

(1) the modification is in the best interests of the child; and

(2) there is a substantial change in one (1) or more of the 

factors that the court may consider under section 2 . . . of 

this chapter.

 

5

 We note that both parties incorrectly cited to Article 17 of Title 31, which is applicable to custody in 

dissolution of marriage, legal separation, or child support actions, see I.C. § 31-17-2-3, rather than Article 14, 

which is applicable to paternity actions.
Court of Appeals of Indiana | Memorandum Decision 27A05-1706-JP-1382 | March 13, 2018 Page 9 of 13

Indiana Code Section 31-14-13-2 contains factors that the trial court must 

consider when making a custody order, namely:

(1) The age and sex of the child.

(2) The wishes of the child’s parent or 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 parent or parents;

(B) the child’s sibling; and

(C) any other person who may significantly affect the 

child’s best interests.

(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 . . .

Finally, Indiana Code Section 31-14-13-2.3(c) contains factors that are pertinent 

specifically to joint legal custody:
Court of Appeals of Indiana | Memorandum Decision 27A05-1706-JP-1382 | March 13, 2018 Page 10 of 13

(1) the fitness and suitability of each of the persons awarded joint 

custody;

(2) whether the persons awarded joint custody are willing and 

able to communicate and cooperate in advancing the child's 

welfare;

(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) whether the child has established a close and beneficial 

relationship with both of the persons awarded joint custody;

(5) whether the persons awarded joint custody:

(A) live in close proximity to each other; and

(B) plan to continue to do so; 

(6) the nature of the physical and emotional environment in the 

home of each of the persons awarded joint custody; and 

(7) whether there is a pattern of domestic or family violence.

[8] Here, the trial court concluded that modification of custody from joint legal 

custody to sole custody with Father was in the best interests of the children and 

that there had been a substantial change in the factors contained in Indiana 

Code Section 31-14-13-2. The court based those conclusions on its findings 

that: Mother is “unable or unwilling” to seek needed medical treatment for 

Son, Appellant’s App., Vol. II at 98; Mother’s actions were causing a 
Court of Appeals of Indiana | Memorandum Decision 27A05-1706-JP-1382 | March 13, 2018 Page 11 of 13

substantial risk to the children’s emotional development and physical wellbeing; and Mother’s mental health is a significant concern. Mother challenges 

these factual findings, and we address each in turn.

[9] First, the evidence supports the trial court’s finding that Mother was not seeking 

needed medical treatment for Son. The GAL, who contacted Son’s educational 

providers and medical providers, reported that Son received services for his 

autism at First Steps until he was three years old; however, after that point, 

Mother took him out of a special education pre-school program and never reenrolled him in any other treatment for his autism. Although Mother contacted 

Hope Bridge to provide assistance to Son for his special needs, she did not 

follow through with the necessary steps for Son to actually obtain those 

services. Moreover, Son has a seizure disorder for which he was prescribed 

medication. However, the evidence establishes that at various points Mother 

reduced or discontinued Son’s medication without doctor approval. Thus, the 

trial court did not err when it found that Mother was unwilling or unable to 

provide Son with necessary medical care, one of the factors that may support a 

change in custody. See I.C. § 31-14-13-2(6). Mother’s contentions to the 

contrary are simply requests that we reweigh the evidence and judge the 

credibility of witnesses, which we will not do. Steele-Giri, 51 N.E.3d at 123.

[10] Second, the evidence supports the trial court’s findings that Mother’s statements 

and/or actions demonstrated a lack of emotional stability that “threaten[s] the 

children’s emotional development.” Appellant’s App., Vol. II at 98. There is 

no evidence in the record that Mother has been diagnosed with a mental illness. 
Court of Appeals of Indiana | Memorandum Decision 27A05-1706-JP-1382 | March 13, 2018 Page 12 of 13

However, the trial court found—based on the GAL report, Father’s testimony, 

and Mother’s own admissions—that Mother exhibits signs of paranoia. She 

believes that “someone hacked her computer” and that verbal statements she 

made in her home were “mysteriously” uploaded to the Pinterest website. 

Appellant’s Br. at 17.6 She further believes that “people were taking pictures of 

her,” “people were after her,” and “they would infiltrate the company” where 

she worked. Id. Mother also believes that she is being stalked by “special 

agents.” Id. And Mother does not deny making such statements and holding 

such beliefs. 

[11] Although there is no evidence that the above seemingly paranoid statements 

and beliefs have caused harm to the children, the GAL also reported, and 

Father testified, that, in the children’s presence, Mother threw rocks at Father 

and threatened him with a baseball bat until her young Daughter intervened. 

Although Mother denies those actions, the trial court found Father’s testimony 

on the matter more credible. Moreover, the GAL opined that Mother’s 

insistence on showing her young Daughter a picture of a penis in an attempt to 

prove Father was molesting Daughter—even after the Department of Child 

Services (“DCS”) investigated Father three times for Mother’s allegations and 

 

6

 Mother’s admissions in her brief cite to the transcript of her testimony at the May 2, 2017, custody 

modification hearing. However, that transcript has not been filed with this court; rather, it appears the trial 

court clerk erroneously filed a transcript from proceedings that took place in this case on October 19, 2017, 

well after Mother filed this appeal. However, because Mother admits on appeal that she made those 

statements during her testimony on May 2, 2017, and because Mother still maintains on appeal that there is 

no evidence those statements are not true statements of fact, see Appellant’s Br. at 17, we need not delay this 

appeal to obtain the correct transcript.
Court of Appeals of Indiana | Memorandum Decision 27A05-1706-JP-1382 | March 13, 2018 Page 13 of 13

found each time they were unsubstantiated—could cause Daughter emotional 

harm. Further, the GAL, who reviewed texts from Mother to Father, also 

noted that “(o)ne of [Mother’s] most concerning texts said something such as 

‘trying to get right with God so I can hold the twins[’] hands on our way to 

Heaven.’” Appellant’s Confid. Supp. App. Vol II at 17. Given that evidence, 

the trial court did not err in finding that Mother’s emotional instability—as 

shown by her statements and actions—threatens the children’s emotional wellbeing. See I.C. §§ 31-14-13-2(6) and (7); 31-14-13-2.3(c)(1), (6) and (7). Again, 

Mother’s contentions to the contrary are requests that we impermissibly 

reweigh the evidence and judge witness credibility.

Conclusion

[12] There is evidentiary support for the trial court’s findings that Mother failed to 

provide necessary medical care for Son and that Mother’s emotional instability 

threatens the children’s emotional—and possibly physical—well-being. And 

those findings support the trial court’s conclusions that a substantial change in 

circumstances justifies awarding custody to Father, and that such a 

modification of custody is in the children’s best interest. 

[13] Affirmed.

Kirsch, J., and Pyle, J., concur.