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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 defense of res judicata, collateral estoppel, or the law of the case.

FILED
Dec 31 2008, 9:10 am
of the supreme court, court of appeals and tax court

ATTORNEY FOR APPELLANT: DAVID P. FRIEDRICH Wilkinson, Goeller, Modesitt, Wilkinson & Drummy, LLP Terre Haute, Indiana

CLERK

IN THE COURT OF APPEALS OF INDIANA
IN RE THE PATERNITY OF: B.C. and H.C. (minor children by their next of friend), DARLENE F. PIRTLE, Appellant-Respondent, vs. WILLIAM COLLINS, Appellee-Petitioner. ) ) ) ) ) ) ) ) ) ) ) ) )

No. 77A01-0807-JV-344

APPEAL FROM THE SULLIVAN CIRCUIT COURT The Honorable Thomas E. Johnson, Judge Cause Nos. 77C01-0505-JP-79 & 77C01-0505-JP-80

December 31, 2008 MEMORANDUM DECISION - NOT FOR PUBLICATION

VAIDIK, Judge

Case Summary Darlene Pirtle ("Mother") and William Collins ("Father") had two children together before separating in 2005. Paternity was established, and Father was granted parenting time. However, in 2007, the trial court suspended Father's parenting time after allegations of abuse surfaced. At the 2008 hearing to determine whether to reinstate Father's parenting time, the trial court refused to consider evidence of abuse from before the 2007 hearing and reinstated Father's parenting time. Mother appeals the trial court's decision, arguing that the trial court erred by failing to require the Sullivan County Department of Child Services ("SCDCS") to file a report and by excluding evidence of abuse from before the 2007 hearing. Because we find that Mother did not make a sufficient offer of proof, we affirm. Facts and Procedural History After fifteen years of living together, Mother and Father separated in 2005. Mother and Father had two children together, H.C. and B.C. Paternity was established in Sullivan County Circuit Court in 2005. Mother was granted physical custody of the children, while Mother and Father were granted joint legal custody. Father was granted reasonable parenting time and ordered to pay child support. Mother and Father reached and filed with the court a mediated settlement agreement which provided in part that Father would have daily phone parenting time and in-person parenting time on the first and third weekends of each month, with an additional half weekend for months with a fifth weekend. 2

Mother and Father soon filed cross motions for rule to show cause, each alleging that the other had failed to comply with the terms of the mediated settlement agreement. The court held a hearing on February 27, 2007, and ordered that Father's parenting time be suspended pending an investigation by the SCDCS into allegations that Father had abused the children. The trial court ordered that Father would still have liberal telephone privileges with the children. The SCDCS filed a report with the trial court on September 17, 2007, explaining that it had not previously filed an investigation report with the trial court because the SCDCS had never received the February 27 order. The SCDCS reported to the trial court that its original records regarding the allegations had been expunged pursuant to its policy that all screened out and unsubstantiated records be expunged six months after the decision to screen out or expunge is approved. The SCDCS concluded that "[a]fter reviewing this [investigation] report, it was determined that this report had either already been investigated and unsubstantiated by the [SCDCS] or did not meet legal sufficiency to investigate." Appellant's App. p. 48. Father filed a motion to reinstate the previously-entered mediated settlement agreement. The trial court conducted its hearing on Father's motion on February 21, 2008. During the hearing, the trial court refused to consider any evidence of events occurring before the February 27, 2007, hearing. The trial court then granted Father's motion and reinstated the mediation agreement. Mother filed a motion to correct error, which was denied. Mother now appeals. Discussion and Decision 3

We initially note that Father has failed to submit an appellee's brief. When an appellee does not file a brief, we have no obligation to undertake the burden of developing an argument on its behalf. Trinity Homes, LLC v. Fang, 848 N.E.2d 1065, 1068 (Ind. 2006). If the appellant's brief presents a case of prima facie error, we will reverse the trial court's judgment. Id. (citing Gibson v. City of Indianapolis, 242 Ind. 447, 179 N.E.2d 291, 292 (1962)). Prima facie error in this context is defined as "at first sight, on first appearance, or on the face of it." Santana v. Santana, 708 N.E.2d 886, 887 (Ind. Ct. App. 1999) (quoting Johnson County Rural Elec. Membership Corp. v. Burnell, 484 N.E.2d 989, 991 (Ind. Ct. App. 1985)). If the appellant is unable to meet this burden, we will affirm. Trinity Homes, 848 N.E.2d at 1068. Upon review of a trial court's determination of a parenting time issue, we reverse only when the trial court manifestly abuses its discretion. Reno v. Haler, 734 N.E.2d 1095, 1101 (Ind. Ct. App. 2000), trans. denied. No abuse of discretion occurs if there is a rational basis in the record supporting the trial court's determination. Id. We will neither reweigh evidence nor judge the credibility of witnesses. Id. In all parenting time

controversies, courts are required to give foremost consideration to the best interests of the child. Pennington v. Pennington, 596 N.E.2d 305, 306 (Ind. Ct. App. 1992), trans. denied. Mother argues on appeal that the trial court abused its discretion by failing to require the SCDCS to complete an investigation and report regarding allegations of abuse against Father and by excluding from the hearing evidence of events occurring before February 27, 2007.

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As for Mother's first argument, the trial court did not err because the SCDCS did file a report informing the trial court that, although the record from the case had since been expunged, the abuse allegations had either been investigated and found unsubstantiated or did not meet legal sufficiency for an investigation. Appellant's App. p. 48-49. Mother presents no authority demonstrating that the trial court was required to delve further into the abuse allegations that the SCDCS had deemed unsubstantiated or legally insufficient. As for Mother's second argument, as a general matter, the decision to admit or exclude evidence is within a trial court's sound discretion and is afforded great deference on appeal. Strack & Van Til, Inc. v. Carter, 803 N.E.2d 666, 670 (Ind. Ct. App. 2004). A trial court's decision to exclude evidence constitutes an abuse of discretion if it is clearly against the logic and effect of the facts and circumstances before the court or it misinterprets the law. Southtown Props., Inc. v. City of Fort Wayne ex rel. Dep't of Redev., 840 N.E.2d 393, 399 (Ind. Ct. App. 2006), trans. denied. Although the statutes governing parenting time do not specifically require a change of conditions to modify parenting time, we have held that evidence of conduct occurring before the last parenting time proceeding is inadmissible.1 K.B. v. S.B., 415 N.E.2d 749, 754 (Ind. Ct. App. 1981). This principle prevents the relitigation of issues decided at previous hearings. Id.

However, as explained below, we need not decide today whether the trial court abused its discretion by excluding testimony at the February 2008 hearing.
In contrast, the statutes governing custody modifications specifically provide that evidence relating to a matter occurring before the last custody proceeding between the parties is inadmissible. Ind. Code

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