Bailey, J.
Case Summary
B.D. (“Mother”) appeals an order finding her in contempt of court, upon the petition of J.P. (“Father”). We reverse.
Issues
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.
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Mother first argues that the trial court infringed upon her parental rights by delegating to David the sole discretion as to whether parenting time sessions would be therapeutic or supervised, which therapist would provide services if the session was therapeutic, and when those sessions should occur. [Footnote omitted.]
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Here, the trial court made no explicit determination that it is in Child’s best interests that Mother’s authority be limited. Nor do the orders explicitly state that Child needs mental health treatment. It appears that the focus of mental health services in the original order was upon providing services to Father, who had been convicted of a violent crime. Nonetheless, the orders as enforced effectively limit Mother’s decision-making as to whether Child should receive mental health services and with whom.
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Mother, as sole legal custodian, was to decide Child’s upbringing, including her mental health care and extra-curricular activities. When Father was granted parenting time, Mother sought protection from the trial court in the form of additional requirements of Father. That is, Father’s time with Child was to be supervised and he was to receive counseling appropriate for a domestic violence perpetrator being reunited with his child. Mother did not seek mental health care for Child, nor was Child adjudicated a CHINS. However, the trial court ultimately enforced David’s assignment of Father’s individual therapist to provide additional services to Child despite the lack of a specific finding that it was in Child’s best interests to override Mother’s wishes. We conclude that Mother has demonstrated prima facie error in this regard.
Finding of Contempt
The trial court found Mother was in contempt of court for denial of parenting time….Mother contends that the basis for the finding of contempt is unclear and that there is insufficient evidence of her willful disregard of a court order.
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The evidence against Mother is that she opposed having Child involved in therapeutic visits with Father’s counselor, at least after the first few visits. [Footnote omitted.] Instead, she desired to have visits with Father monitored by a supervisor; as the custodial parent, she was entitled to this preference. However, based upon the service provider’s insistence that therapeutic sessions take place, Mother was offered only those time slots. Mother continued to take Child to gymnastics and notified Family Ties that Child would not appear at a Wednesday night session. Although a rescheduling of gymnastics would undoubtedly have been more cooperative, we find that Mother’s conduct is short of willful disobedience given the broad and ambiguous language of the parenting time order. The trial court’s order, even as re-affirmed after hearing, did not mandate therapy for Child and contemplated schedule changes upon agreement. Mother has met her burden, prima facie, of showing that her conduct did not amount to willful disobedience.
Conclusion
The trial court infringed upon the custodial rights of Mother, the sole custodial parent, who was not subject to a CHINS proceeding, by delegating to a service provider decision-making as to Child’s need for therapy. Mother has shown, prima facie, that she was not in indirect contempt of court. As such, the trial court’s order of contempt is an abuse of discretion.
Reversed.
Robb, J., concurs in result with separate opinion.
Vaidik, C.J., dissents with separate opinion.
Robb, Judge, concurring in result.
As a general premise, I agree with the law stated by both Judge Bailey and Chief Judge Vaidik in their opinions. But I see the facts of this case differently than either Judge Bailey or Chief Judge Vaidik and believe Mother’s situation falls somewhere in between the law as stated by each of them. Nonetheless, I ultimately agree with Judge Bailey that the trial court’s order finding Mother in contempt should be reversed, and I therefore concur in result.
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Vaidik, Chief Judge, dissenting.
I respectfully dissent. Because the evidence supports the trial court’s conclusion that Mother willfully disobeyed a clear court order by denying Father parenting time, I would affirm the contempt finding.
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