In Re: The Paternity of E.B.: Daniel P. Foster v. Rebecca L. Baugh (mem. dec.) ( 2017 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any FILED
court except for the purpose of establishing Sep 29 2017, 11:16 am
the defense of res judicata, collateral CLERK
estoppel, or the law of the case. Indiana Supreme Court
Court of Appeals
and Tax Court
APPELLANT, PRO SE
Daniel P. Foster
Carlisle, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In Re: The Paternity of E.B.: September 29, 2017
Daniel P. Foster, Court of Appeals Case No.
53A05-1703-JP-562
Appellant,
Appeal from the Monroe Circuit
v. Court
The Honorable Bret Raper,
Rebecca L. Baugh, Commissioner
The Honorable Stephen R. Galvin,
Appellee.
Judge
Trial Court Cause No.
53C07-1011-JP-845
Pyle, Judge.
Statement of the Case
[1] Daniel Foster (“Father”) appeals pro se the trial court’s denial of his motion to
correct error filed with respect to a judgment declining to order Rebecca Baugh
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(“Mother”) to take the parties’ six-year-old daughter, E.B. (“E.B.”), to a prison
facility for parenting time with Father. Concluding that the trial court did not
abuse its discretion, we affirm the denial of Father’s motion to correct error.
[2] Affirmed.
Issue
Whether the trial court abused its discretion in denying Father’s
motion to correct error.
Facts
[3] In 2011, Father was convicted of attempting to murder Mother. The
underlying facts of that conviction were set forth as follows in Father’s direct
appeal:1
On April 12, 2010, Rebecca Baugh was pregnant with Foster’s
child. Baugh and Foster had been arguing over Foster’s
relationship with another woman. Foster’s sister, Heather
Foster, and his cousin, Wendy Campbell, were with Baugh and
drove to Foster’s residence. Campbell was driving the truck,
Baugh was sitting in the middle, and Heather was sitting on the
passenger side. As they approached the driveway to Foster’s
residence, Foster stepped from behind a tree, raised a gun, and
shot at the truck. The bullet hit the windshield. Campbell
decided to get out of the truck, but Baugh and Heather drove
away and called the police. When the police arrived, Baugh had
1
Indiana Evidence Rule 201(d) provides that “[j]udicial notice may be taken at any stage of the proceeding,”
which include appeals. Banks v. Banks, 980 N.E.2d 423, 426 (Ind. Ct. App. 2012), trans. denied. See also Fisher
v. State, 878 N.E.2d 457, 462 (Ind. Ct. App. 2007), trans. denied, (concluding that this Court could take
judicial notice of the record in Fisher’s original appeal).
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pieces of glass in her ear and on her clothing. Baugh and
Heather told the police officers that Foster had shot at the truck.
Campbell refused to speak with the officers. The officers were
unable to locate the bullet, but a roofer working on a nearby
house reported hearing a gunshot. During an interview with
police a few days later, Baugh claimed that Foster did not shoot
at the truck.
The State charged Foster with three counts of Class A felony
attempted murder and three counts of Class C felony criminal
recklessness. Foster and Baugh resumed their relationship and,
during a bail hearing, Baugh testified that Foster did not shoot
the truck. Heather and Campbell also testified at the bail hearing
that Foster did not shoot the truck.
At Foster’s jury trial, Baugh testified that she lied to the police
officers during the second interview and that she lied at the bail
hearing. Baugh testified that they decided to claim that a rock
damaged the windshield. They fabricated estimates from two
windshield repair businesses, including one from Thickstun Glass
Company, and the fabricated estimates claimed that the rock was
still embedded in the windshield at the time of the estimate.
John Chester, a forensic scientist with the Indiana State Police
Laboratory, testified that the hole in the windshield was caused
by a high-velocity, low-mass impact and that microscopic traces
of lead, which were consistent with a bullet, were found in the
hole. Another expert, John Larsen, also testified that the
windshield was damaged by a bullet. Heather and Campbell
testified for Foster, claimed that a rock damaged the windshield,
and claimed that they obtained estimates for repairing the
windshield, which allegedly still had the rock stuck in it at the
time of the estimates. On rebuttal, the State called Thomas
Thickstun, the owner of a company that allegedly gave Foster an
estimate to repair the windshield. Thickstun testified that his
company did not produce Foster’s estimate to repair the
windshield.
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The jury found Foster guilty of Class A felony attempted murder
of Baugh and all three counts of Class C felony criminal
recklessness. The jury found Foster not guilty of the attempted
murder of Heather and Campbell. After Foster’s March 2011
sentencing, he filed a motion to correct error based on allegedly
newly discovered evidence. Foster submitted affidavits from
Heather and Campbell. In her affidavit, Heather claimed that she
lied in her testimony at the trial, that Foster did shoot at the truck
but that Heather, Campbell, and Baugh were inside of the house
at the time, and that she fabricated the windshield estimates. In
her affidavit, Campbell claimed that Foster probably did shoot at
the truck but that Heather, Campbell, and Baugh were inside of
the house at the time and that she lied about a rock hitting the
windshield. The trial court denied Foster’s motion to correct
error.
Foster v. State, No. 53A01-1105-CR-222, *2-4 (Ind. Ct. App. Jan 9, 2012).
[4] Foster is currently incarcerated at the Wabash Valley Correctional Facility. In
September 2016, Father filed a verified petition for parenting time with E.B.
pursuant to INDIANA CODE § 31-14-14-1 wherein he requested “visitation with
the minor child.” (App. 10).
[5] At a hearing on the petition, Mother testified that she wanted E.B. to maintain
a relationship with Father. According to Mother, she had read Father’s letters
to E.B. and allowed E.B. to speak to Father on the telephone every week.
However, after Mother and Father had a disagreement, Father stopped
telephoning. E.B. was confused and wondered “why is daddy not calling?”
(Tr. 7). Before the disagreement, Mother had also taken E.B. to the
correctional facility to visit Father. However, Mother explained that the trip
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was expensive because she was “supporting [E.B.] by herself” and that she did
not like taking E.B. into the prison. (Tr. 8).
[6] During the hearing, Father asked that he be allowed to send his daughter letters
and gifts, such as handkerchiefs with drawings. Father also asked to be allowed
to telephone E.B. once a month at an established time. Lastly, Father asked to
see his daughter once a month at the prison. He explained that his mother
(“Paternal Grandmother”) visited once a month and would be willing to
transport E.B. to the visit.
[7] Mother agreed to give E.B. letters and gifts sent from the prison and to make
E.B. available for a monthly telephone call from Father. She asked the trial
court to allow her time to see how the telephone calls went before ordering
visitation at the prison. If the telephone calls went well, Mother agreed to take
E.B. to the prison to visit with Father one time per month. Mother did not
want Paternal Grandmother to transport E.B. to the prison because Paternal
Grandmother typically wanted to discuss Father’s court case with Mother in
front of E.B. Mother explained that she had given Paternal Grandmother three
different opportunities to visit with E.B. and had informed Paternal
Grandmother that she was not to discuss the case. However, Paternal
Grandmother had “held [E.B.] for thirty seconds, passed her to her daughter,
and then started going on about [Mother] and how [she had] put her son in
prison for the rest of his life . . . .” (Tr. 22).
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[8] Father testified that his conviction for attempting to murder Mother had been
affirmed on appeal and that he was working on a post-conviction relief petition.
He explained that Mother had told two attorneys that she had “lied on [Father]
at the trial . . . .” (Tr. 28). Father expected that the post-conviction petition
would be ready for filing within a year.
[9] Following the hearing, on January 4, 2017, the trial court issued an order
allowing Father to continue to mail letters to E.B. The order also provided that
Mother should facilitate one telephonic parenting time visitation on the first
Monday of each month. Lastly, the court “decline[d], at [that] time, to require
Mother to take [E.B.] to the DOC facility.” (App. 10). Specifically, the trial
court explained as follows:
Even though Mother has previously taken the child to see Father
on two (2) instances, she indicates that she is not presently
comfortable doing so as Father and Father’s family members
have been ‘pressuring’ Mother to recant her earlier statements to
law enforcement about the crime, which in turn would assist
Father in his ongoing Post-Conviction Relief Petition.
(App. 10). The order further explained that the matter of Father receiving
parenting time visits at the prison would be revisited at a later date.
[10] Father responded to the trial court’s order by filing a motion to correct error
wherein he argued that the trial court had improperly restricted his parenting
time when it “severely curtailed both [Father’s] and [E.B.’s] right to parenting
time through visitation, by ordering parenting time, by phone calls and letters
only . . . .” (App. 13). According to Father, the trial court had failed to make
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the required specific finding of physical endangerment or emotional impairment
to justify the restriction as is required by INDIANA CODE § 31-14-14-1. He
asked the trial court to reconsider its decision to decline to order Mother to take
E.B. to the prison to visit Father.
[11] In its order on Father’s motion to correct error, the trial court conceded that it
had failed to “articulate its specific finding of physical endangerment or
emotional impairment in the order limiting/restricting [Father’s] parenting time
visitation.” (App. 22). Thereafter, in this regard, the trial court set forth the
following specific findings in support of its denial of Father’s motion to correct
error:
10. As noted in the court’s 01/04/17 order, Father is serving a
lengthy sentence in the Indiana Department of Correction for the
criminal offense of attempted murder, and, as previously noted,
Mother was Father’s intended victim. Father’s propensity for
violence, as manifested against Mother, causes the court to
conclude that Father’s unrestricted parenting time with the child
would in fact pose a serious threat to the child’s physical safety
and well-being.
11. Additionally, as was noted in the 01/04/2017 order, Father
has made repeated attempts to convince Mother to recant her
incriminating statements made against Father during the course
of Father’s underlying criminal cause. Father has filed a Petition
for Post-Conviction Relief in his criminal case, and Mother’s
‘cooperation’ is crucial to Father’s petition. The court finds
Father’s actions toward Mother – both the criminal offense itself
as well as subsequent communications – to be abhorrent and
unacceptable.
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12. Father’s post-conviction requests of Mother to recant her
statements have caused tremendous stress for Mother. Mother is
the sole caretaker and provider for the child, and Mother’s
continued stress from Father’s action would most certainly have
an adverse impact upon on the child as well.
13. Given Father’s apparent indifference to lawful behavior as
well as his lack of respect for Mother as evidenced by his requests
for Mother to recant, it is reasonable to infer that Father would in
likelihood make inappropriate comments/requests to the child
during any physical parenting time, urging the child to convince
Mother to recant her statements. Thus the court remains
convinced that Father’s physical contact with the child would
endanger the child’s emotional wellbeing.
(App. 22-23). Father now appeals the denial of his motion to correct error.
Decision
[12] At the outset, we note that Mother has failed to file an appellee’s brief. When
an appellee fails to submit a brief, we need not undertake the burden of
developing an argument for the appellee. Santana v. Santana, 708 N.E.2d 886,
887 (Ind. Ct. App. 1999). Applying a less stringent standard of review, we may
reverse the trial court if the appellant can establish prima facie error. Id.However, we may in our discretion decide the case on the merits. Kladis v.
Nick’s Patio, Inc., 735 N.E.2d 1216, 1219 (Ind. Ct. App. 2000). We exercise our
discretion here to consider the merits of the issue presented in this case.
[13] We further note that Father has chosen to proceed pro se. It is well-settled that
pro se litigants are held to the same legal standards as licensed attorneys. Twin
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Lakes Reg’l Sewer Dist. v. Teumer, 992 N.E.2d 744, 747 (Ind. Ct. App. 2013).
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. Shepherd v. Truex, 819 N.E.2d 457, 463 (Ind. Ct. App. 2004). We will
not become an “advocate for a party, or address arguments that are
inappropriate or too poorly developed or expressed to be understood.” Perry v.
Anonymous Physician 1, 25 N.E.3d 103, 105 n. 1 (Ind. Ct. App. 2014), trans.
denied, cert. denied.
[14] Turning to the issue in this case, we note that Father appeals the denial of his
motion to correct error pursuant to Indiana Trial Rule 59 regarding the trial
court’s parenting time order. Our standard of review in such cases is well-
established. We review a trial court’s ruling on a motion to correct error for an
abuse of discretion. Old Utica Sch. Pres., Inc. v. Utica Twp., 7 N.E.3d 327, 330
(Ind. Ct. App. 2014), trans. denied. An abuse of discretion occurs when the trial
court’s decision is contrary to the logic and effect of the facts and circumstances
before it or the reasonable inferences therefrom. Id.[15] A decision about parenting time requires us to give foremost consideration to
the best interests of the child. Rickman v. Rickman, 993 N.E.2d 1166, 1168 (Ind.
Ct. App. 2013). Parenting time decisions are generally reviewed for an abuse of
discretion. Id. If the record reveals a rational basis for the trial court’s
determination, there is no abuse of discretion. Id. We will not reweigh the
evidence or reassess the credibility of witnesses. Id.Court of Appeals of Indiana | Memorandum Decision 53A05-1703-JP-562 | September 29, 2017 Page 9 of 11
[16] Indiana has long recognized that the right of parents to visit their children is a
precious privilege that should be enjoyed by noncustodial parents. Patton v.
Patton, 48 N.E.3d 17, 21 (Ind. Ct. App. 2015). INDIANA CODE § 31-14-14-1,
which sets forth the visitation rights of a noncustodial parent in a paternity
action, provides that a “non-custodial parent is entitled to reasonable parenting
time rights unless the court finds, after a hearing, that parenting time might: (1)
endanger the child’s physical health and well-being; or (2) significantly impair
the child’s emotional development.” Even though this statute uses the term
“might,” this Court has interpreted the statute to mean that a court may not
restrict parenting time unless that parenting time would endanger the child’s
physical health or well-being or significantly impair the child’s emotional
development. Walker v. Nelson, 911 N.E.2d 124, 130 (Ind. Ct. App. 2009). “By
its plain language, INDIANA CODE § 31-14-14-1 requires a court to make a
specific finding of physical endangerment or emotional impairment prior to
placing a restriction on the noncustodial parent’s visitation. In re Paternity of
V.A.M.C., 768 N.E.2d 990, 1000 (Ind. Ct. App. 2002), reh’g granted on other
grounds by 773 N.E.2d 359 (Ind. Ct. App. 2002).
[17] Here, Father contends that the trial court “committed a reversible error in
restricting [his] parenting time with his minor child because the evidence does
not support” the trial court’s specific finding of physical endangerment or
emotional impairment. (Father’s Br. 2). The trial court stated that Father’s
propensity for violence as manifested against Mother as well as Father’s
indifference to lawful behavior and his lack of respect for Mother supported its
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finding that Father’s physical contact with E.B. would physically endanger or
emotionally impair the child. Our review of the evidence reveals that Father
shot at Mother, his sister, and his cousin while Mother was pregnant with E.B.
Mother told the police and then testified at a bail hearing that Father did not
shoot at her. At trial, however, she admitted that she had lied during her police
interview and at the bail hearing and testified that Father had shot at her. At
the hearing on Father’s petition, Father testified that Mother had told his post-
conviction attorneys that she had lied at trial, suggesting that she had recanted
her trial testimony. This evidence supports the trial court’s findings and its
denial of Father’s motion to correct error. We find no abuse of the trial court’s
decision.
[18] Affirmed.
Riley, J., and Robb, J., concur.
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