C ourt of Appeals of Indiana | Mem orandum Decision 19A

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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 de fense of res judicata, collateral estoppel, or the law of the case

.
A TTORNEY FOR A PPELLANT Thomas B. O’Farrell McClure | O’Farrell Indianapolis, Indiana A TTORNEY FOR A PPELLEE Chr istopher J. Evans Dollard Evans Whalin LLP Noblesville, Indiana


### IN THE 

# COUR T OF APPEALS OF INDIANA

P

. G ., Appellant

- Respondent ,
v. 

### M

. G

. , App ellee

- P

etitioner April 14, 2020 Court of Appeals Ca se No. 19A

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- 2177 Appeal from the Hamilton Superior Court The Honorable Michael A. Casati, Judge Trial Court Cause No. 29D01

- 1511

- D R

- 9608

Crone , Judge .C ourt of Appeals of Indiana | Mem orandum Decision 19A

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### Case Su mmar y
[1] P.G. ( “ Mother ” ) appeals the trial c ourt ’ s order which addressed , among other things, cross - petition s for modifi c ation of child custody and paren ting time regarding A.G., the mino r child Mother shares with h er ex - spou se , M.G. ( “ Father ” )

. Mother contends that the trial court abused its discr etion in admitting certain evidence at the modification hearing and in modif y ing the original custody order and granting prima ry physical cus to dy o f A.G. to Father. Fi nding no abuse o f discretion, we affirm

. 

### Facts and Procedural History
[2] A.G. was born to M other and Fa ther on August 15, 2013 . Mother and Father married approximatel y t wo years later on June 20, 2015 . Less t h an six months after the marriage , the parties separated , and Fat her petitione d for diss olution of the marriage in November 2015. In Mar ch 2017, the parties ente red into a settlemen t agreement wh erein they agreed to share joint legal custody of A .G., with Mother havin g primary p hysical custody. The trial court approve d the settlement agreement a n d incorporated it into the dissolution decr ee on March 27, 2017.

[3] In J u ne 2018, Father f iled a motion for leave to perfo r m discovery seeking discovery of certain records and info rmation r elated to Mother ’ s medical and mental hea lth treatment foll owing the dissolution of the marria ge. Father cited hi s concerns surrounding what appeared to be a decline in Mother ’ s mental heal t h since the dissolution , and its impact on the welfare of A.G. whi le inC ourt of Appeals of Indiana | Mem orandum Decision 19A

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- 2177 | April 14, 2020 Page 3 of 13 Mother ’ s care
. T he motion provided that the discovery was an attempt to avoid the filing of a premature or unnecessary petition for cus tody modification in th e hopes that the discover y would alleviate Fathe r ’ s concerns
. The trial court granted F ather ’ s motion permitting discovery of the rec ords.

[4] Thereafter, i n August 2018, Father filed a petition to modify chil d custody and parenting time

. Father al leged that t here had been a substanti a l and continuing change in Mother ’ s mental health, including her l ack of ho nesty with Father about the same , and that it was in A.G

. ’ s best interests for Father to be granted prim ary ph ysical custod y. Father also filed a pe ti tion for r el ease of M other ’ s

m e ntal heal th records and a motion for rule to show cause stat ing tha t Mother had refused to release the rec ords despite previous requests and court orders

. Mother fi led an object ion to Fa ther ’ s petition for release of her mental health records as well as motion for a protective orde r. Mother subsequently filed a
cross - pe t ition for modification of c hild custod y seeking, in addition to physical custody, full legal custody of A.G.

[5] The trial court held a hearing on the parties ’ cross - petitio ns fo r modification of child custody and Father ’ s motion for rule to show cause on A ugust 16, 20 1 9. On S eptember 9, 2019, t he trial court entered its order which stated in relevant part:
25. LEGA L CUSTODY : The parties shall continue to share joint legal custo dy of the minor child.
2 6. PHYSIC AL CUSTODY : Physical cus tody shall be modified such that Father shall receive primar y physical custody of theC ourt of Appeals of Indiana | Mem orandum Decision 19A

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27. PAR ENTING TIME : Mo ther sha ll receive parenting time in accordanc e with the India na Parentin g Time G uidelines, which are incor p orated herein by reference, and which the parties are or dered to f ollow. As a modifi cation to the guideline parentin g time , the Sund ay of Mother ’ s w eekend p arenting time shall be overnight with Mother taking the minor chi ld to school the followin g Monda y morning.
a. Mother s hall not permit [A.G. ’ s ] maternal gr an df ather to drive [A.G. ] or to p rovide sole care for [A.G.]
b. Mother shall comp ly with he r tr eatment recommendations of her therapist and the person who presc ribes her m edication.

c . If Mother seeks i n - patient treatment or takes a le ave of absence fro m work sh e must immediate ly inform Father.

.... 31. Mother is in contemp t for her knowing a nd w il lful failure to comply with the Court ’ s Order and for failing to offer t he opportunity for additional p arenting time to Father

. ... 32. Du e to Mother ’ s action s in hiding information fro m Father, fighting and objecting at every step of the p rocess to provi de Father with relev ant and necessary inf ormation about her treatme nt and due to Mother ’ s con tempt, Mother shall pay a por tion of Father ’ s reasonable attorney fees in the amount of $2 ,50 0. 00 within 12 0 days of the Court ’ s Order. The sa me to be reduced to a j udgment in the event it is un pai d. The Court finds that based upo n the e vidence p resented, Mother has the ability to pay the ordered attorney ’ s fees. App eale d Order at 6

- 8 ( underlining omitted)

. This appeal ensued.C ourt of Appeals of Indiana | Mem orandum Decision 19A

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### Discussion and Decision Section 1

– Moth er w as not prejudice d by the admissi on of certain evidence.
[6] Mothe r first asserts that the trial court abused its di scretion in admitting certain medical and ment al health records i nto evidence during the modification hearing over her hears ay objection s
. W e review a tria l court ’ s decision to admit or exclude evidence fo r an abuse of discretion

. In re S.W. , 920 N.E.2d 783, 788 (Ind. Ct. App. 2010) . A n abuse of di scretion occurs if th e trial court ’ s decision is clearly against the logi c and effect of the fac ts and circumstances before it

. Id

. A claim of error in the admission or exclusion of evidence will not prevail on ap peal unless a substantial right of the party is af fected. Ind. E vidence Rule 103(a) . “[E]rrors in the admission of evidence are to be disre garded a s harmless error unless they affect the sub stantial rights of a party. ’ ” In re Des.B ., 2 N.E.3d 828, 834 (Ind. Ct. App. 2014) . To determine w hether the ad missi on of evidence affected a party ’ s substantial righ ts, we assess the probable impact of th e evidence upon the finder of fact. Id

.
[7] Hearsay is an out

- of

- court statement offered in evidence to p rove the truth of the matter asserted. Ind. Evid ence R ule 801(c)

. Although hear say e vidence is g enerally inadmissible, see I nd. Evid e nce R u le 802 , Father sought admission of the challenged medical and mental health records pursuant to Indiana Evid ence Rule 803(6) . That rule provides that the following records ar e not exclu ded as hear say regardless of w hether th e declarant is available as a witness:C ourt of Appeals of Indiana | Mem orandum Decision 19A

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- 2177 | April 14, 2020 Page 6 of 13 Records of a Regularly Conduct ed Activity

. A record of an act, event, condition, opinion, or diagnosis if: (A) the record was made at or near the time by

-- or from inf ormation transmitted by

-- someone with knowledge; ( B) the record was kept in the cou rse of a regul arly conducted activit y of a business, organization, occupation, or calling, whether or not for profit; (C) making the record was a regular practice of that ac tivity; (D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a cert ification that complies with Rule 902(9) or (10) [ 1 ] or with a statute permitting certification; and (E) neither the source of information nor the method or circumstances of preparation in dicate a lack of trustworth iness.

I n d. Evidence Rule 803(6)

. “In essence, the basis for the business records exception is that reliability i s assured because the maker of the r ecord relies o n the record in the ordinary course of business activities.” In re Te rmination of Parent

– Child Relationship of E. T. , 80 8 N.E.2d 639, 643 (Ind. 2004)

.
[8] O n appeal, Mother do es not claim that the entirety of her medi c al and mental health recor ds constituted inad missible hearsay

. R ather , s he contends that

1 Mother concedes that the challenged document s were properly authenticated by affidav it o f the custodian of records pursuant to Indiana E videnc e R u le 902

.C ourt of Appeals of Indiana | Mem orandum Decision 19A

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- 2177 | April 14, 2020 Page 7 of 13 cer tain portions of t he records were in admissible pursuant to the busine ss records exception because they contained medical opinions and/or diagnoses regarding her mental health

. Our s upreme c ourt has state d, “Although Rule 803(6) accommodates the inclusio n of ‘opinions ’ in business records our courts have long recogniz ed, at l east in the context of medical or hospital records, that the ex pertise of the opinion giver must be established.” Id

. a t 644 (citing Fendley v. Ford , 458 N.E.2d 1167, 1171 n.3 (Ind. Ct. App. 1984) (“Expressions of opinion with in medical or hospital records historically have not been admissible under the business records exception because their accuracy cannot b e evaluate d without the sa feguard of cross

- exa mination of the person offering the opinion.”)). Mother complains that Fa ther did not call the opini on giver s to testify and establish their expertise, and the ir opini ons were not subj e ct to cross
examination.

[9] To the extent that the medical records here co ntained certain inadmissi ble hearsay expression s of opinion regarding Mot her ’ s me ntal health , M other has
not demonstrat ed that she suffered pr ejudice . I t is well settled that t he improper admission of evidence is har mless error when the judgment is suppor ted by substantial independent evidence to satisfy the reviewing court th at there is no substan tial likelihood that the questioned evidence co ntributed to the judgment. E.T. , 808 N.E.2d at 6 46

. Based upon our thorough review of the re cord before
us, we are confident that the trial court need n ot have relied upon the questione d evidence to arri ve at its custody modificati on decision . A s we discuss more fully below, we con clude that t he re is a mple independent evidenceC ourt of Appeals of Indiana | Mem orandum Decision 19A

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- 2177 | April 14, 2020 Page 8 of 13 provided by the other portions of the questioned documents , as well as witness testimony , to support the t rial court ’ s order

. Accordi ngly, any error in the admission of the records was , at mo st, harm less. 

### S ection 2

– The trial c ourt did not abuse it s discretion in modifying the original cus tod y order . [10] M other contends that the trial court abused it s di scretion whe n it modified the orig i nal cus to dy order and g ranted Father primary physica l custody of A.G. We review custody modi fic ations only for an abuse of discretion

. Wern er v. W erner , 946 N.E.2d 1233, 1244 (Ind. Ct. App. 2011) , trans. denied

. There is a well

- estab lished preference in Indi ana for granting significant latitude and defere nce to our trial judges in family law mat ters. Steele

- Giri v. Steele , 51 N.E.3d 119, 124 (Ind. 2016)

. Appellate courts “are in a poor position to look at a cold transcript of the rec ord, and conclude th a t the trial judge, who saw the witnesses, observed t heir demeanor, and s crutinized their testimony as it came from the witness stand, did not prope rly understand the significance of the evidence.” Kirk v. Kirk , 770 N.E.2d 304, 307 (Ind . 2002)

. Therefore, on appeal

we will not “ rew eigh the evidence nor reas sess witness credib ility, and the evidence should be viewed most favorably to the judgment.” Be st v. Best , 941 N.E.2d 499, 502 (Ind. 2011)

. W e wil l reverse the trial court ’ s custody determination only if the decision is “clearly against the logic and effe ct of the facts an d circumstances or the reasonable inferences drawn therefrom.” In re Paternity of C.S. , 964 N.E.2d 87 9, 883 (I nd. Ct. App. 2012) , trans. denied . “[I]t is
not enough that the evidence mig h t support some other conclusion, but it mus tC ourt of Appeals of Indiana | Mem orandum Decision 19A

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- 2177 | April 14, 2020 Page 9 of 13 posit ively require the conclusion contended for by appellant before there is a bas is for reve rsal. ” Kirk , 770 N.E.2d at 307

.
[11] Indiana Code Section 31

- 1 7

- 2

- 21 provides th at a t rial court may not modify an exist ing custody order unless (1) the modification is in the best interests of the child, and (2) there has been a substantial change i n one or more statutory factors that are outlined in Indiana Code S ection 31

- 17

- 2

- 8 . T h ose factors are: (1) The age and sex of the child. (2) The wishes of the chi ld ’ s parent or parents

. (3) The wishes of the child, with more consideration given to the c hild ’ s wishes if the child i s at least fourteen (14) years of age. (4 ) The interaction a nd 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 be st interests. (5) The child ’ s adjustment to the child ’ s: (A) home; (B) school; andC ourt of Appeals of Indiana | Mem orandum Decision 19A

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- 2177 | April 14, 2020 Page 10 of 13 (C) c ommunity. (6) The mental and physical he alth of all individuals involved. (7) Evidence of a pattern of d omestic or family violence by either parent. (8) Evidence that t he child has been cared for by a de facto custo dian ....

Ind. Code § 31

- 17

- 2

- 8

.
[12] In inter preting s ection 31

- 17

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- 21 , this Court h as held that “all that i s require d to support modification of custody ... is a finding that a change would be in the child ’ s bes t interests, a consideration of t he factors listed in I.C. § 31

– 17

– 2

– 8 , and a finding th at there has been a substantial change i n one of those factors.” Nienaber v. Nienaber , 787 N.E.2d 450, 456 (Ind. Ct. App. 2003)

. Here, it appears that neither party re quested special findings under Indiana Trial Ru le 52(A)

. Instead, the partie s submit ted proposed orders

. We therefore treat the trial

c ou rt ’ s order as sua spo nte findings of fact

. Piles v. Gosman , 851 N.E.2d 1009, 1012 (Ind. Ct. A pp. 2006 ) . “As to the issues covered by the findings, we apply the two

- tiered standard of w hether the evidence supports the findings, and whether the fi ndings su pport the j udgment.” In re S.D ., 2 N.E.3d 1283, 1287 (Ind. 2014) . We review any remaining issue s under the gener al judgment standard, wh ere the judgment will be affirmed if it can be sus tained on any legal theory consistent with th e evidence. Id

. “[W]e may look both to other findings and beyond the fi ndings to the evidence o f record to determine if the result isC ourt of Appeals of Indiana | Mem orandum Decision 19A

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- 2177 | April 14, 2020 Page 11 of 13 against the facts and circumstances before the court.” S tone v. Stone , 991 N. E.2 d 992, 998 (Ind. Ct. App. 20 13) , aff ’ d on reh ’ g , 4 N.E.3d 666

.
[13] Her e, there is ample evidence in the record to establish that a change in custody

w as in A.G. ’ s be st interests due to a subst antial change in Mother ’ s mental he alth , as well as Mother ’ s lac k of transp arenc y regarding rec ent de clines in her mental hea lth

. Witness testim o ny , which included the parties, Mother ’ s sister , and Mother ’ s therapist, indicates tha t Mother has attempted s uicide since the original cus tody orde r w as entered, and that she suffers from continued suicid al ideation and depre ssion

. S he has been hospitalized and has taken leaves of absence from work due to the decline in her condition. Th e record further establi she s that Mother has not been forthrig ht with Father , her therapist , or the trial court rega rdi ng her mental health

. Du ring her testimony , Mother continued to downpla y the seriousness of her depression and suicid al id eation , descri bing suicide as a “ [v] ery fluid ” conc ept in medical ter ms . Tr. Vol. 2 at 142

- 44

. Rightfully so, the trial court expre ssed “ substantial concerns ” r e garding Mother ’ s “ lack of ho nesty/self

- awareness of her mental he al th history and conditio n. ” Appealed Orde r at 6

. The evidence sup ports a finding that a decline in Mother ’ s mental health , and her lack of transparency about i t , constitutes a substantial c hange in cir c umstances.

[14] St ill, Mother maintains that “ there is no evidence ” that the re cent change in her

m ental h ealth has “ had any ef fe ct whatever[sic] on A.G. ” Appel lant ’ s Br. at 26

. Simpl y put, t his assertion is incorrec t

. As noted by the trial cour t, Mother ’ s extreme denial regard ing the seriousness of her decline in mental hea lth sinceC ourt of Appeals of Indiana | Mem orandum Decision 19A

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- 2177 | April 14, 2020 Page 12 of 13 the dissolution is evide n t from her November 2 018 hearing testimony that she

“ did not thin k it was dan gerous for [A.G.] to have a suici dal pa re nt

. ” Appe aled Order at 4

. I ndeed, her deni al continued during the modification hearing when she admitted that A.G. had d eclared concern for her prior to Mother ’ s h ospit a lization by stating , “ Momm y, I just want you to live , ” despite supposedly know ing nothing about, and being u naffected by , Mother ’ s depression and thoughts of suicid e
. Tr. Vol. 2 at 120

. M o reover, t he record establ ishes that Mother has conti nuall y tried to hide her struggles from Father rather than considering what is best for A .G

. 2 The e vidence is clear that n ot only has M other ’ s decline in mental health affected A.G., but Mother ’ s complete failure to acknowledge the de cline has negatively affected A.G. Th is evidence convince d the trial cour t, and convinces us, that a change in t he
current custody arrange ment i s in A. G ’ s b est interest s
.
[15] Rather than challenging the evidence supporting the trial court ’ s cus tody mod ification , Mother simply and repeatedly asserts that we must reverse the trial court ’ s modification order because it “ l acks the re quisite findings ” t h at there has been a substantial change in one of th e enumerated statutory factors and that a change in cus tody would be in A.G. ’ s best interests

. App ellant ’ s Br. at 22 , 26. Cont r ar y to Mother ’ s asse rtion , a bsent a request by a party, t he trial court does not have to enter special findings tha t specify which factor(s) has substantially changed and expl ain why a change in custody is in the best

2 The record indicat es that Mother participated in extended i npatient treat me nt without notifying Father and all owing Father to aid in caring for A.G. by exercis ing parentin g time.C ourt of Appeals of Indiana | Mem orandum Decision 19A

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- 2177 | April 14, 2020 Page 13 of 13 interests of the child. In re Paternity of P.R. , 940 N.E.2d 3 46 , 351 (Ind. Ct. App. 2010)

. The trial court ’ s modi fica t i on o rder is supported by the evidence

. 3 B ecause Mother has failed t o show tha t th e court ’ s order is clearly against the logic and effect of the facts an d circumstances or the reasonable inferences drawn the refrom , we affirm

.
[16] Af firmed.
Bailey, J., a nd Altice, J., concur.

3 T h e t rial court ’ s modifi cation order pro vided that , during her parenting time, “Mother shall not permit [A.G. ’s] m ate rnal grandfather to drive [A .G.] or to provide sole care for [A.G. ] ” A ppe aled Order at 7

. Mother claims that th e trial cour t violated a nd/o r interfered with maternal grandfather ’s due process rights by entering such order without notice and an opportunit y to be heard. In essence, M oth er seeks to enforce the rights of a third perso n who is not a party to this actio n . S h e may not do so

. C ons titutional rights are personal to an individual , and Mother can not claim a violation of maternal grandfather ’s due process rights on h is behal f

. R ichardson v. Richardson , 34 N.E.3d 696, 702 , n. 3 ( Ind. Ct. App. 2015)

.