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In re Paternity of J.W.

Court of Appeals of Indiana

July 7, 2017

In the Paternity of J.W.
Justin L. Piersimoni, Appellee. Bailey R. Dailey, Appellant,

         Appeal from the Steuben Circuit Court The Honorable Randy Coffey, Magistrate Trial Court Cause No. 76C01-1105-JP-152

          ATTORNEY FOR APPELLANT Yvonne M. Spillers Fort Wayne, Indiana

          Bailey, Judge.

         Case Summary

         [¶1] B.D. ("Mother") appeals an order finding her in contempt of court, upon the petition of J.P. ("Father"). We reverse.


         [¶2] Mother presents two issues for review:

I. Whether the parenting time order with which Mother is to comply incorporates an improper delegation of authority to a service provider, such that Mother is restricted in the exercise of her custodial rights; and
II. Whether Mother was willfully in contempt of the parenting time order.

         Facts and Procedural History

         [¶3] Mother gave birth to J.W. ("Child") on December 22, 2009. Father's paternity was established on November 13, 2012. At that time, Father was in prison after having pled guilty to a battery upon Mother. Mother was granted full custody of Child and Father was not ordered to pay child support.

         [¶4] After Father's release from prison, he sought parenting time with Child. Mother opposed parenting time for Father, but argued that, if Father was granted parenting time, he should exercise that time under supervision. On May 17, 2016, the trial court issued an order granting Father limited parenting time under the control and supervision of Community Anti-Violence Alliance Family Ties program ("Family Ties") in Angola.

         [¶5] Pursuant to the order, Father was to have fifteen one-hour visits, followed by twenty two-hour visits (so long as the Family Ties Supervised Visitation Program could accommodate the parties). Father was to arrange and pay for parenting time sessions; Mother was to respond and cooperate. Both parents were to abide by the rules of the program. The order specified that "the actual day for such parenting time shall be arranged to fit the schedule of the CAVA Family Ties Program, " but further stated that the parties might, by mutual agreement, alter the times and days. (App. at 11.)

         [¶6] Father was ordered to participate in any program of counseling recommended by Family Ties for the protection of Child. Upon completion of the thirty-five supervised parenting time sessions and any recommended counseling, Father was to have seven hours of unsupervised parenting time on alternate Saturdays. Father was to begin exercising parenting time as contemplated by the Indiana Parenting Time Guidelines after June 3, 2017.[1] The parenting time order was not appealed.

         [¶7] Father began individual counseling with Jeremy Lewis, a Family Ties therapist ("Lewis"). Because Child had not seen Father for several years, Family Ties scheduled parenting time as therapeutic sessions with Lewis. On the second visit, without Mother's permission, Father's mother ("Grandmother") was permitted to be present during parenting time. Mother took issue with this but was advised by Executive Director Lee David ("David") that Mother would need a court order to prevent Grandmother's attendance at a parenting time session.

         [¶8] During the third parenting time session, Child used a code word to indicate that she was uncomfortable and wanted to leave. Lewis learned that Mother had told Child that Father had pushed Mother and Child down stairs. Lewis confronted Mother and accused her of "sabotaging" parenting time. (Tr. at 70.) At some point, Mother expressed her disagreement with Child receiving therapeutic sessions at Family Ties. Mother advised that Child already had a counselor. She also expressed some interest in obtaining the services of another person; Lewis responded with a comment suggesting that the other counselor engaged in exorcisms.

         [¶9] Mother obtained legal counsel, who drafted a letter to David requesting that future visits between Child and Father be supervised "by anyone other than Jeremy Lewis." (Pet. Ex. 2.) The letter also stated that Mother "understands that means the visits will not be therapeutic but rather only supervised." (Pet. Ex. 2.) On July 27, 2016, counsel also filed a motion to have parenting time relocated to the Children First Center.[2]

         [¶10] David and Mother engaged in some discussion regarding proposed changes. David offered a Wednesday evening time slot with a therapist other than Lewis. Mother advised that Child had gymnastics on Wednesday nights. She requested a Friday evening time, but the therapist available for assignment did not work on Friday evenings. Mother notified Family Ties that Child would not attend the first scheduled Wednesday evening session. David wrote a letter to the trial court alleging Mother was non-compliant.[3]

         [¶11] On August 30, 2016, Father filed a Petition for Contempt Citation and Rule to Show Cause. He alleged that Mother had failed to appear at parenting time or had left before the allotted time expired. Mother filed a motion for a Guardian Ad Litem and an objection to ex parte communication by David, a non-party. On October 4, 2016, the trial court conducted a hearing on the pending matters.

         [¶12] Mother testified that she agreed with the existing court order for supervision of parenting time and "everything [the judge] says" but contended that she had "asked to reschedule" and Family Ties would not accommodate her. (Tr. at 78.) David testified to her belief that the court had entrusted Family Ties with "the authority to determine whether visits should be supervised or therapeutic." (Tr. at 91.) David opined that Lewis was the most suitable therapist for Father and Child and it saved parental expense because he worked pursuant to a grant of funds. Nonetheless, she had offered therapeutic sessions on Wednesday or Sunday. Mother had agreed to neither.

         [¶13] Lewis testified that he was providing ongoing counseling services to Father, and that Father was "open to the idea of having supervised or therapeutic" visits. (Tr. at 106.) Lewis opined that Mother's conduct was part of a "parental alienation dynamic." (Tr. at 105.) Lewis conceded that he was ...

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