In Re: The Paternity of E.B.: Daniel P. Foster v. Rebecca L. Baugh (mem. dec.)
53A05-1703-JP-562
Ind. Ct. App.Sep 29, 2017Background
- In 2011 Father (Daniel Foster) was convicted of attempted murder and criminal recklessness for shooting at a truck containing Mother while she was pregnant with the parties’ child, E.B. Father is incarcerated at Wabash Valley Correctional Facility.
- In September 2016 Father filed a verified petition for parenting time under Ind. Code § 31-14-14-1 seeking visitation, letters, telephone contact, and monthly in-person visits at the prison.
- Mother allowed letters and weekly phone calls historically, but after a dispute she stopped calls; she is sole caretaker and was reluctant to bring E.B. into the prison due to expense and discomfort, and opposed paternal grandmother transporting E.B. because of inappropriate discussions about Father’s criminal case.
- Trial court ordered continued mailings and one telephonic parenting-time session monthly, declined at that time to require Mother to take E.B. to the DOC, and said the prison-visit issue would be revisited.
- Father moved to correct error arguing the court restricted his parenting time without the specific statutory findings (physical endangerment or emotional impairment) required by Ind. Code § 31-14-14-1.
- The trial court then entered explicit findings that (1) Father’s violent propensity and attempted murder of Mother posed a threat to the child’s safety, (2) Father had pressured Mother to recant, causing her stress as sole caretaker, and (3) Father likely would make inappropriate requests/comments to the child, risking emotional harm; the court denied the motion to correct error.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether court abused discretion by denying Father’s motion to correct error restricting in-person prison visits | Foster: Court restricted parenting time without specific statutory finding of physical endangerment or emotional impairment | Trial court: Specific findings (violence, pressure on Mother to recant, risk of emotional harm to child) justify limiting in-person visits | Court: No abuse of discretion; findings supported restriction and motion denial |
Key Cases Cited
- Santana v. Santana, 708 N.E.2d 886 (Ind. Ct. App. 1999) (appellee’s failure to file brief permits reversal only on prima facie showing of error)
- Kladis v. Nick’s Patio, Inc., 735 N.E.2d 1216 (Ind. Ct. App. 2000) (appellate court may exercise discretion to decide case on merits)
- Twin Lakes Reg’l Sewer Dist. v. Teumer, 992 N.E.2d 744 (Ind. Ct. App. 2013) (pro se litigants held to same standards as attorneys)
- Shepherd v. Truex, 819 N.E.2d 457 (Ind. Ct. App. 2004) (pro se litigant must follow procedural rules)
- Perry v. Anonymous Physician 1, 25 N.E.3d 103 (Ind. Ct. App. 2014) (court will not act as advocate for poorly developed pro se arguments)
- Old Utica Sch. Pres., Inc. v. Utica Twp., 7 N.E.3d 327 (Ind. Ct. App. 2014) (motion to correct error reviewed for abuse of discretion)
- Rickman v. Rickman, 993 N.E.2d 1166 (Ind. Ct. App. 2013) (parenting-time decisions reviewed for abuse of discretion; child’s best interests control)
- Patton v. Patton, 48 N.E.3d 17 (Ind. Ct. App. 2015) (parental visitation is a precious privilege for noncustodial parents)
- Walker v. Nelson, 911 N.E.2d 124 (Ind. Ct. App. 2009) (court may not restrict parenting time absent findings that it would endanger physical health or significantly impair emotional development)
- In re Paternity of V.A.M.C., 768 N.E.2d 990 (Ind. Ct. App. 2002) (statute requires specific finding of physical endangerment or emotional impairment before restricting visitation)