Jena M. Anderson v. Derick A. Willis (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Sep 08 2020, 8:36 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
APPELLANT PRO SE
Jena Anderson
Bloomington, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jena M. Anderson, September 8, 2020
Appellant, Court of Appeals Case No.
19A-JP-3099
v. Appeal from the Monroe Circuit
Court
Derick A. Willis, The Honorable Catherine Berg
Appellee. Stafford, Judge
The Honorable Stephen R. Galvin,
Judge
The Honorable Bret D. Raper,
Commissioner
Trial Court Cause Nos.
53C04-0911-DR-773
53C07-1405-JP-299
Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-JP-3099 | September 8, 2020 Page 1 of 8
Statement of the Case
[1] Jena Anderson (“Mother”), pro se, appeals the trial court’s grant of a petition to
permanently modify custody over her minor children filed by Derick Willis
(“Father”) and the denial of her counter-petition to have her minor children
returned to her care. However, Mother makes no cogent argument and has
failed to provide any citation to relevant case law. Accordingly, Mother has not
met her burden on appeal to demonstrate that the trial court erred, and we
affirm the trial court’s order.
Facts and Procedural History
[2] Mother and Father have two children together: D.W., born August 4, 2008,
and M.W., born March 24, 2014 (collectively, the “Children”). Following their
births, Mother was the custodial parent of the Children. 1 But on December 14,
2018, Father filed an emergency petition for modification of custody in which
he alleged that the Children were not safe with Mother because she “had
substance abuse issues.” Tr. Vol. 4 at 5. The court held a hearing on Father’s
petition on January 15, 2019. Following a hearing during which Mother
admitted that she had “an issue” with heroin, the court entered a provisional
order granting Father custody of the Children. Tr. Vol. 2 at 25.
[3] Thereafter, Father filed a petition to permanently modify custody over the
Children. In response, Mother filed a counter-petition to have the Children
1
The record does not indicate whether Mother and Father ever lived together.
Court of Appeals of Indiana | Memorandum Decision 19A-JP-3099 | September 8, 2020 Page 2 of 8
returned to her care. 2 Following a hearing, the court entered findings of fact
and conclusions thereon as follows:
2. On December 14, 2018[,] Father filed for an emergency
custody hearing based on Mother’s substance abuse issues.
Mother had been recently charged with Possession of
Methamphetamine[] (53C05-1809-F6-001012).
3. A hearing was conducted on January 15, 2019, and as a result
this court issued a Provisional Order awarding Father primary
physical custody of the [C]hildren, with the matter to be reviewed
on March 29, 2019. During this hearing the court found
testimony from the Maternal Grandmother to be compelling
when she suggested the [C]hildren should at least temporarily
remain under Father’s custody as Mother was unstable.
4. A custody review hearing was conducted on March 29, 2019,
and the court determined that Father should continue to
maintain provisional custody of the parties’ minor children as
Mother’s felony case was still pending. A subsequent review
hearing was scheduled for June 28, 2018.
5. On or about May 23, 2019[,] the State of Indiana (Monroe
County) filed additional criminal charges against Mother under
Cause No. 53C05-1905-FS-000569 for the alleged offenses of
Robbery (Level 5 Felony) and Possession of Methamphetamine
(Level 6 Felony). Mother was arrested and booked into the
Monroe County Jail on these charges.
6. On or about May 30, 2019[,] Mother was released from the
Monroe County Jail on her own recognizance on the condition
2
Mother has not provided a copy of any of the custody petitions in her appendix on appeal.
Court of Appeals of Indiana | Memorandum Decision 19A-JP-3099 | September 8, 2020 Page 3 of 8
that she report to Monroe County Community Corrections
and[/]or be subject to random drug screens.
7. On or about June 18, 2019[,] a criminal arrest warrant was
issued for Mother for an alleged violation of the terms and
conditions of her pre-trial release. Mother was arrested and
booked into the Monroe County Jail on or about June 21, 2019.
Mother was subsequently released on or about June 25, 2019[,]
subject to case management with Day Reporting.
8. On June 28, 2019[,] Mother filed a Verified Petition for
Modification of Child Custody. In her petition Mother requested
that the matter be heard as soon as possible, alleging the Father
was possibly abusing prescription medication. Mother further
asserted that Father was thwarting her contact with the
[C]hildren.
9. On or about July 3, 2019[,] a First Amended Notice of Non-
Compliance and Violation of Pre-Trial Supervision against
Mother was filed by the Monroe County Probation Department,
and an arrest warrant was issued.
10. Sometime in early August 2019, Mother relocated to
Houston, Texas. Mother may have notified the criminal court of
her relocation, but she did not advise this court of the same.
11. On or about Friday, September 20, 2019[,] Father permitted
the Maternal Grandmother to take the two (2) boys to a soccer
game on the following Saturday morning (9/21). Mother drove
to Bloomington, Indiana from Houston, Texas, arriving in
Bloomington on September 21, 2019. Mother visited with the
two (2) boys at the Maternal Grandmother’s residence, and she
told the Maternal Grandmother she was as going to take the
[C]hildren to breakfast.
Court of Appeals of Indiana | Memorandum Decision 19A-JP-3099 | September 8, 2020 Page 4 of 8
12. Mother then drove the [C]hildren from Indiana to reside
with her in Texas without consent from Father, the Maternal
Grandmother, and/or this court. Mother subsequently returned
the [C]hildren back to Father, and her parenting time remained
suspended pending further hearing. Mother was permitted to
spend time with the [C]hildren following the hearing on
November 19, 2019.
13. Mother continues to reside in Houston, Texas, which she
claims is a better environment for her to address
addiction/sobriety issues. Mother resides with her sister and her
sister’s four children. Mother’s criminal matters are not yet
resolved, although Mother is confident that she will not be
serving any prison time.
14. Mother has been attending a treatment program at Phoenix
House since August 2019. Mother has routinely provided
“clean” UDS screens, and the staff at Phoenix House report that
Mother exhibits a positive attitude and that Mother is motivated
in her recovery.
15. Mother is presently employed at “The Crab” restaurant in
Houston.
16. The [C]hildren are presently enrolled in Summit School
(MCCSC) and are passing. There have been some minor
attendance and behavioral issues, especially with the younger
Child.
17. Father described a “typical” day with the [C]hildren, which
includes work on homework, playtime, and meal time. The
[C]hildren enjoy parks, travel, video games, and sleepovers while
with Father. Father has a three bedroom trailer and he is
attempting to receive government assistance with housing.
Father is also pursuing obtaining commercial driver’s license.
Court of Appeals of Indiana | Memorandum Decision 19A-JP-3099 | September 8, 2020 Page 5 of 8
18. Father has pending criminal matters (child support related as
to another child), but Father has been complying with his child
support program, and there is no imminent concern that he will
be incarcerated. Father otherwise provides a safe and stable
residence for the [C]hildren.
19. DCS investigator Brian Barber testified that DCS recently
received an abuse neglect allegation as to Father on or about
October l, 2019. An investigation ensued, and the allegation was
ultimately unsubstantiated. Father did decline a UDS at the
urging of his girlfriend. Father concedes that he has used
marijuana.
20. The court spoke with the oldest child, [D.W.,] during a
private in camera interview. [D.W.] generally reported that things
are going well at Father’s residence, and he would prefer to stay
with Father. [D.W.] advised that he did not know what his
younger brother’s wishes were.
* * *
23. In the present case the court concludes that Father should
maintain primary physical custody of the [C]hildren. He has
provided a safe and stable residence for the [Children] and they
have generally thrived under his care. Mother has made great
strides in her recovery, and she is to be commended, but her
criminal cases are not yet resolved and she continues to address
her own addiction issues.
Appellant’s App. Vol. 2 at 40-43 (some emphases removed). Accordingly, the
trial court granted Father’s motion to permanently modify custody and denied
Mother’s counter-petition to have the Children returned to her care. This
appeal ensued.
Court of Appeals of Indiana | Memorandum Decision 19A-JP-3099 | September 8, 2020 Page 6 of 8
Discussion and Decision
[4] Mother appeals the trial court’s grant of Father’s petition to permanently
modify custody over the Children and the denial of her petition to have the
Children returned to her care. We first note that Father has not filed an
appellee’s brief. Where the appellee fails to file a brief on appeal, we may, in
our discretion, reverse the trial court’s decision if the appellant makes a prima
facie showing of reversible error. McGill v. McGill, 801 N.E.2d 1249, 1251 (Ind.
Ct. App. 2004). In this context, prima facie error is defined as error “at first
sight, on first appearance, or on the face of it.” Orlich v. Orlich, 859 N.E.2d 671,
673 (Ind. Ct. App. 2006).
[5] We also note that Mother is proceeding pro se. “It is well settled that pro se
litigants are held to the same legal standards as licensed attorneys. This means
that pro se litigants are bound to follow the established rules of procedure and
must be prepared to accept the consequences of their failure to do so.” Basic v.
Amouri, 58 N.E.3d 980, 983-84 (Ind. Ct. App. 2016) (internal citation omitted).
[6] The Indiana Appellate Rules require an appellant to include in her brief an
argument section that “contain[s] the contentions of the appellant on the issues
presented, supported by cogent reasoning. Each contention must be supported
by citation to the authorities, statutes, and the Appendix or parts of the Record
on Appeal relied on[.]” Ind. Appellate Rule 46(A)(8)(a). This is because
cogent argument supported by adequate citation to authority “promotes
impartiality in the appellate tribunal. A court which must search the record and
Court of Appeals of Indiana | Memorandum Decision 19A-JP-3099 | September 8, 2020 Page 7 of 8
make up its own arguments because a party has not adequately presented them
runs the risk of becoming an advocate rather than an adjudicator.” Young v.
Butts, 685 N.E.2d 147, 151 (Ind. Ct. App. 1997). We will not address
arguments so poorly developed or expressed that they cannot be understood.
Basic, 58 N.E.3d at 984 (quotation marks omitted).
[7] Here, Mother’s brief on appeal wholly fails to comply with Indiana Appellate
Rule 46(A)(8)(a). Mother has not supported her contentions by cogent
reasoning, and she does not cite any case law or other legal authority to support
her assertions. And Mother has failed to state our standard of review as
required by Indiana Appellate Rule 46(A)(8)(b).
[8] Nevertheless, we have read and considered Mother’s arguments on appeal. We
conclude that, even if Mother had complied with the Rules of Appellate
Procedure, her arguments amount to a request for this Court to reweigh the
evidence, which we cannot do. See Steele-Giri v. Steele, 51 N.E.3d 199, 124 (Ind.
2016). Thus, Mother has failed to meet her burden on appeal to demonstrate
that the trial court erred, and we affirm the trial court’s order.
[9] Affirmed.
Bradford, C.J., and Mathias, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-JP-3099 | September 8, 2020 Page 8 of 8