text:
    In the Matter of the Termination of the Parent-Child Relationship of N.Q., Je.Q., Ja.Q., L.Q., Minor Children, T.Q., Mother, and A.Q., Father, Appellants-Respondents, v. Indiana Department of Child Services, Appellee-Petitioner.
    No. 82A04-1301-JT-42.
    Court of Appeals of Indiana.
    Oct. 8, 2013.

      Julianne L. Fox, Evansville, IN, Attorney for Appellants.
    Gregory F. Zoeller, Attorney General of Indiana, Christine Redelman, Deputy Attorney General, Robert J. Henke, Office of the Indiana Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BROWN, Judge.

T.Q. (“Mother”) and A.Q. (“Father,” and collectively with Mother, “Parents”) appeal the involuntary termination of their parental rights to their children, N.Q., Je.Q., Ja.Q., and L.Q. (collectively, the “Children”). Parents raise one issue, which we revise and restate as whether the evidence is sufficient to support the trial court’s judgment terminating their parental rights. We reverse and remand.

FACTS AND PROCEDURAL HISTORY We begin by reciting the underlying facts as set out by this court in our memorandum decision in In re N.Q., No. 82A05-1109-JT-511, 2012 WL 1744399 (Ind.Ct.App. May 16, 2012):

On December 11, 2009, [the Indiana Department of Child Services (“DCS”) ] removed the Children[] and two siblings from the Parents’ home because of unsafe home conditions, medical issues, and lack of supervision, among other reasons, and placed them in foster care. On December 15, 2009, DCS filed petitions alleging that all six children were children in need of services (“CHINS”). The Parents denied the allegations, and the trial court held a factfinding hearing. On April 13, 2010, the trial court entered orders adjudicating all six children as CHINS.
Indiana Code Section 31-34-19-1 provides that not more than thirty days after it finds that a child is a CHINS, the court must complete a dispositional hearing to consider, among other things, “[alternatives for the care, treatment, rehabilitation, or placement of the child” and “[t]he necessity, nature, and extent of the participation by a parent ... in the program of care, treatment, or rehabilitation of the child.” The trial court held a dispositional hearing on May 5, 2010, and the Children remained in foster care. The chronological case summaries indicate that the dispositional decrees were to be furnished to the trial court by DCS, but, apparently as a result of an oversight, the decrees were not filed until February 14, 2011, and were not entered in the court’s order book'until March 16, 2011....

Op. at *1. On December 14, 2010, or three months prior to the entry of the dispositional decrees, DCS filed petitions for the involuntary termination of the Parents’ parental rights as to the Children, and a hearing on the petitions was held over the course of several days between January and April 2011. Id. at *1-2. On July 13, 2011, the trial court issued an order granting the termination petitions. Id.

On appeal, DCS conceded that “the Children had not been removed from the Parents for at least six months under a dispositional decree when the termination petitions were filed, as required by Indiana Code Section 31-35-2-4(b)(2)(A)(i),” as well as “that it apparently failed to plead in its petitions that the alternative elements listed in subpara-graph (A) had been satisfied.” Id. at *3. We reversed the trial court’s termination order and remanded for further proceedings, noting that “our conclusion ‘should in no way be construed as a comment upon the sufficiency of the evidence relating to the remaining elements of the termination petitions].’ ” Id. at *3 (quoting In re D.D., 962 N.E.2d 70, 75-76 (Ind.Ct.App.2011)).

On May 16 and 17, 2012, DCS filed its second Petitions for Termination of Parental Rights for the Children, and on June 26, 2012, Parents appeared in court and denied the petitions. The court appointed counsel for Parents and set a hearing date of October 1, 2012, as well as a pretrial hearing date of September 18, 2012. The court held a pretrial hearing as scheduled.

On October 1, 2012, as scheduled, the court held a termination hearing (the “Second Termination Hearing”). At the outset of the hearing, the court admitted, over the objection of Parents, the transcript and exhibits of the previous termination hearing as DCS Exhibits 1 and 2. The court then admitted another twenty-two exhibits into the record without objection, including documents related to the CHINS proceedings of the Children, certified pleadings, certified records from Southwest Behavioral Healthcare concerning the Children, certified records from Easter Seals Rehabilitation Center, and certified dockets concerning Mother and Father regarding 2010 criminal convictions for neglect of a dependent as class D felonies.

Mother was then called to the stand and testified that in November of 2011 she and Father moved into a two-bedroom apartment in which their eldest daughter, sixteen-year-old C.Q., currently resides with them. Mother testified that C.Q. has made “[m]ost” of her appointments, noting that they were unable to make three but that those appointments were rescheduled and they “had gotten her in.” Transcript at 20-21. Mother testified that she has not worked since 2005, noting that she has several health problems including fibro-myalgia, asthma or COPD, anxiety, crushed cartilage in her left knee, mitosis and arthritis, and is legally deaf in one ear, as well as back issues including that her sciatic nerve and a muscle are protruding through her backbone. Mother testified that she does not currently receive disability but explained that “[a]s soon as [she] get[s her] lawyer paid off for [Father’s] disability” she can start receiving her own, and she noted that she needs to pay the attorney $100. Id. at 22. Mother testified that her family is “current on all of [their] bills.” Id. She also noted that the furniture in their home was donated.

Mother testified that they live in “Section 8” housing and that they currently pay $156 per month in rent. Id. at 24. She testified that they receive $1,019 per month from Father’s Social Security Disability (“SSD”), and that C.Q. receives an additional $88 per month from SSD. Mother testified that they were able to pay $800 for C.Q. to participate in band and drama at school. Mother also testified that they routinely clean them apartment, including doing the dishes and sweeping the floors. She also stated that they have discussed moving into a house with their housing manager if the Children are returned to them, and were advised that it would not be a problem, noting that the manager would “just have to know they’re coming for sure.” Id. at 30. Mother also testified that they do not currently own a vehicle and would need to take the bus to the Children’s appointments.

Father was next called as a witness and began by noting that he has a degenerate back disease for which he receives disability payments through SSD. He stated that he did not know if he would be able to work and that he “can’t really lift anything at all.” Id. at 32. Father testified that he possessed a driver’s license and a chauffeur’s license but that he could not imagine sitting in a ear all day with his back trouble, noting that he has been receiving therapy and shots approximately every six weeks and that the shots have “really helped [] a lot.” Id. at 44. Father also testified that the furniture they have was donated by their church but that they have “a lot of stuff in storage” as well, including tables and chairs. Id. at 34. He testified that he began receiving SSD on May 18, 2011, and that he received $10,000 in back disability payments and that he used “most ... for back pay on our rent and other church members that helped us. Made sure we took care of everybody that helped us get through the rough times.” Id. at 35. Father stated that although C.Q. has had some clothes donated to her, he and Mother “took her out on her birthday and bought her a complete western outfit,” and that “whatever [C.Q.] might need us to do for her, we will.” Id. at 36-37. He also noted that his mother visits two or three times a month and helps Parents buy groceries, and she would help with making appointments for C.Q. or the other Children if she were asked.

When asked to “tell the Court what you’ve done since the last trial date to be able to allow the younger kids to come home,” Father replied:

I didn’t have any source of income for ... since 2007. The first lawyer we went to he really didn’t do the job that was required. Then we obtained another attorney and he got my disability. With the money that we got we paid back everybody that helped us when we were down. And right now we’re in a nice place, a nice apartment, keep our bills current. We do keep a little bit extra back. We don’t keep it in the bank. We keep it at the house for emergencies.

Id. at 41. He also noted that if the Children were to be returned to Parents his monthly SSD payment would increase which would enable Parents to be able to care for the Children. He also noted that in addition to his mother, his brother and the pastor of the church would be able to help out with looking at prospective houses.

Next, DCS called Debra Gamache, who had been acting as a CASA for the Children for about the past three months. Ga-mache testified that the Children were “doing very well” in their foster placement and noted that they have had “ups and downs.” Id. at 46-47. She testified that all of the Children “have slight learning disabilities” and that “the foster parents are doing an amazing job keeping up with all the therapy appointments.... ” Id. at 47. Gamache recommended that the children “stay at the current foster placement and be free for adoption” and noted that her reasoning was that N.Q. “does not want to go back home” and that “[t]he little ones are also fearful of going home and they all want to stay where they are currently.” Id. at 48. On cross examination, Gamache noted that the children had “not had contact with their parents ... for quite a long time. There was an accidental meeting at Southwest in June....” Id. at 50. She also noted that as far as she knew, C.Q. is “on an extended trial home visit” and that contact between C.Q. and the other Children had not occurred since February or April of 2011. Id. at 52.

Next, DCS called Paula Wilson, the family case manager since February of 2012. She testified at the outset that C.Q. “is doing well enough to stay” with Parents, that “she is just a really good kid” and “does not have behavior issues at school,” and that she is “mature for her age” and is “able to take care of herself.” Id. at 54, 56-57. Wilson also indicated that C.Q. had missed some of her appointments, and noted that some of them were rescheduled, but in particular C.Q. is behind on her dental appointment and “no showed for a Doctor Evans appointment of the nurse practitioner ... at Southwestern.” Id. at 59. Wilson testified that the Children have made improvements in school since living with the foster parents. On cross examination, Wilson testified that “lots of therapists and people ... have to give their okay” before sibling visitation between C.Q. and the Children could occur because “they feel like [the Children] should be able to adjust to their situations without the influence of that sibling visit. ...” Id. at 62.

The court concluded the hearing and asked the parties to submit proposed findings. On January 8, 2013, the court issued its Findings of Fact and Conclusions of Law (the “Termination Order”) terminating the parent-child relationship of Parents and the Children. To the extent necessary, specifics from the Termination Order will be discussed below.

STANDARD OF REVIEW

When reviewing the termination of parental rights, we will not reweigh the evidence or judge the credibility of the witnesses. Bester v. Lake Cnty. Office of Family & Children, 839 N.E.2d 143, 147 (Ind.2005). Instead, we consider only the evidence and reasonable inferences that are most favorable to the judgment. Id. In accordance with Ind.Code § 31-35-2-8(c), the trial court’s judgment contains specific findings of fact and conclusions thereon. We therefore apply a two-tiered standard of review. First, we determine whether the evidence supports the findings, and second, we determine whether the findings support the judgment. Id. In deference to the trial court’s unique position to assess the evidence, we will set aside the court’s judgment terminating a parent-child relationship only if it is clearly erroneous. In re L.S., 717 N.E.2d 204, 208 (Ind.Ct.App.1999), reh’g denied, trans. denied; see also Bester, 839 N.E.2d at 147; In re A.N.J., 690 N.E.2d 716, 722 (Ind.Ct.App.1997) (noting that this court will reverse a termination of parental rights “only upon a showing of ‘clear error’ — that which leaves us with a definite and firm conviction that a mistake has been made”) (quoting Egly v. Blackford Cnty. Dep’t of Pub. Welfare, 592 N.E.2d 1232, 1235 (Ind.1992)). Thus, if the evidence and inferences support the trial court’s decision, we must affirm. In re L.S., 717 N.E.2d at 208.

The involuntary termination of parental rights is the most extreme measure that a court can impose and is designated only as a last resort when all other reasonable efforts have failed. In re S.P.H., 806 N.E.2d 874, 880 (Ind.Ct.App.2004). This policy is in recognition of the Fourteenth Amendment to the United States Constitution which provides parents with the right to establish a home and raise children. Id. However, these protected parental rights are not absolute and must be subordinated to the children’s interests to maintain the parent-child relationship. Id.; see also Egly, 592 N.E.2d at 1234 (noting that the “purpose of terminating parental rights is not to punish parents, but to protect the children”) (citing Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981), reh’g denied). Although parental rights are of a constitutional dimension, the law provides for the termination of these rights when parents are unable or unwilling to meet their parental responsibilities. In re R.H., 892 N.E.2d 144, 149 (Ind.Ct.App.2008). Moreover, a trial court need not wait until a child is irreversibly harmed before terminating the parent-child relationship. McBride v. Monroe Cnty. Office of Family & Children, 798 N.E.2d 185, 203 (Ind.Ct.App.2003).

Before parental rights may be involuntarily terminated in Indiana, the State is required to allege and prove, among other things:

(B) that one (1) of the following is true:
(i) There is a reasonable probability that the conditions that resulted in the child’s removal or the reasons for placement outside the home of the parents will not be remedied.
(ii) There is a reasonable probability that the continuation of the parent-child relationship poses a threat to the well-being of the child.
(iii) The child has, on two (2) separate occasions, been adjudicated a child in need of services;
(C) that termination is in the best interests of the child....

Ind.Code § 31-35-2-4(b)(2). The State’s burden of proof for establishing these allegations in termination cases “is one of ‘clear and convincing evidence.’” In re G.Y., 904 N.E.2d 1257, 1260-1261 (Ind.2009) (quoting Ind.Code § 31-37-14-2 (2008)), reh’g denied. “[I]f the court finds that the allegations in a petition described in section 4 of this chapter are true, the court shall terminate the parent-child relationship.” Ind.Code § 31-35-2-8(a) (emphasis added).

In making such a determination, the court must judge a parent’s fitness to care for his or her child at the time of the termination hearing, taking into consideration evidence of changed conditions. In re J.T., 742 N.E.2d 509, 512 (Ind.Ct.App.2001), trans. denied. Due to the permanent effect of termination, the trial court also must evaluate the parent’s habitual patterns of conduct to determine the probability of future neglect or deprivation of the child. Id. The statute does not simply focus on the initial basis for a child’s removal for purposes of determining whether a parent’s rights should be terminated, “but also those bases resulting in the continued placement outside the home.” In re A.I., 825 N.E.2d 798, 806 (Ind.Ct.App.2005), trans. denied. A court may properly consider evidence of a parent’s prior criminal history, drug and alcohol abuse, history of neglect, failure to provide support, and lack of adequate housing and employment. McBride, 798 N.E.2d at 199. Moreover, a trial court “can reasonably consider the services offered by the [DCS] to the parent and the parent’s response to those services.” Id. In addition, “[w]here there are only temporary improvements and the pattern of conduct shows no overall progress, the court might reasonably find that under the circumstances, the problematic situation will not improve.” In re A.H., 832 N.E.2d 563, 570 (Ind.Ct.App.2005). The burden for the DCS is to establish “only that there is a reasonable probability that the parent’s behavior will not change.” In re Kay L., 867 N.E.2d 236, 242 (Ind.Ct.App.2007).

DISCUSSION

We begin by recognizing that at the Second Termination Hearing, DCS relied heavily upon the previous proceedings which were held a year-and-a-half earlier, between January and April of 2011. At the outset of the hearing, DCS admitted, over the objection of Parents, the transcript and the exhibits of the first termination proceedings. Indeed, the Second Termination Hearing was quite brief. As an example, the direct testimony of Ga-mache, the CASA, is recited on pages 46-48, a scant three pages, of the transcript. The direct testimony of Wilson, the family case manager, was a bit longer and is represented on pages 53-61 of the transcript. The entire hearing transcript is seventy pages long.

In its Termination Order, the court’s findings focus primarily on the evidence presented at the first termination hearing, and it appears that the court may have used the initial termination order, prepared on July 1, 2011, and merely added a few new findings to the end of the recitation of the findings of fact. This problem with the Termination Order is underscored by the fact that some of the specific findings contain facts which were directly contradicted by Parents and not refuted by DCS at the October 1, 2012 hearing. For example, Finding 15 states:

Despite not having the children in their care and not paying any support for [the Children] during the wardship, [Parents] are behind in them rent. At the time of trial, they were $2500 behind in rent and had only paid $200.00 since October, 2010. The plan is pay the rent up when [Father] receives his disability check. The electric is also two months behind.

Appellant’s Appendix at 73. Also, Finding 20 states as follows:

The plan of [Parents] to resolve their financial issues and meet the needs of their children is to get on disability. Until then, the plan is to borrow from churches and their parents. [Parents] have failed to qualify for social security on several attempts, but they are hopeful with their new social security attorney.

Id. at 74.

At the October 1, 2012 hearing, undisputed evidence was presented that Father had qualified for SSD and was receiving payments of $1019 per month, that C.Q. was receiving an additional $88 per month from Father’s SSD, and that Father’s SSD was approved in May 2011. Parents also stated that they paid back those who had lent them money with the $10,000 Father received as part of his SSD back payments, and that they were current on their bill obligations.

Importantly, we observe that both Parents testified at the Second Termination Hearing that they have been keeping their current apartment clean, specifically noting that they were routinely doing the dishes and sweeping the floors. Indeed, Parents’ current living situation is such that it has been deemed adequate for C.Q. to reside with them. DCS at the Second Termination Hearing did not present evidence refuting Parents’ version of the current conditions that exist in their home, and the record does not reveal that DCS has investigated the living conditions since this court reversed the trial court’s initial termination order. Nevertheless, in its Termination Order the trial court recited findings regarding the unsanitary nature of Parents’ previous home based on the record from the initial termination hearing, and it failed to mention the uncontradicted testimony of Parents regarding the current sanitary conditions of the apartment. See id. at 72-75. This is despite the fact that the children were initially removed from Parents’ care primarily due to the unsanitary conditions which existed at their home in December of 2009. See Exhibit 2.

Thus, our review of the record reveals that the trial court based its decision to terminate Parents’ parental rights to the Children almost entirely on the evidence presented at the initial termination proceedings which occurred between January and April of 2011, and it did not adequately account for the current conditions as required. On this score, we reiterate that this court reversed the trial court’s initial termination order because DCS failed to comply with the dictates of Ind.Code § 31-35 — 2—4(b)(2)(A)(i). Specifically DCS did not file its petitions for termination at least six months following the entry of a disposi-tional decree — in fact, the dispositional decrees in this case were not filed until March 16, 2010, which was over three months following DCS’s petitions for termination.

Regarding the importance of a disposi-tional decree, we observe that the Indiana Supreme Court has stated that dispositional decrees are “one of many steps in the continuing procedural scheme for the care and protection of the children with the ultimate result of either returning them to their home or terminating the parental rights.” Matter of Robinson, 538 N.E.2d 1385, 1387 (Ind.1989). Dispositional hearings, and the orders which result therefrom, are used to set “a program to be pursued that will ultimately result in a final disposition of the cause.” Id. The Court in Matter of Robinson noted in that:

It was clearly established at that hearing that the children were wards of the Welfare Department in foster home care, that they were to remain so, and that the father was to be advised of the participation program already established in 1982 and given an opportunity to take part in it. That program required the father to visit his children, participate in counseling, establish himself in regular employment and pay a small amount of support money for the care of his children. The Welfare Department further stated that, as part of their program, if Robinson did not participate and rehabilitate himself they would subsequently move to terminate his parental rights. The judge explained to Robinson the provisions of the program, the dispositional order the court was about to enter, and asked him if he understood his obligations. Robinson stated he understood them and intended to take part in the program.

Id.; see also Parent-Child Relationship of L.B. and S.B. v. Morgan Cnty. Dep’t of Pub. Welfare, 616 N.E.2d 406, 408 (Ind.Ct.App.1993) (Conover, J., dissenting) (citations omitted) (citing Matter of Robinson, 538 N.E.2d at 1387) (“Within the six month period from the time of the dispositional decree until the welfare department files its termination petition with the court, the parent is given time in which to participate in the program set up by the welfare department designed to enable the parent to show he was willing and able to reassume the role of parent to the children. The welfare department is to advise the parent it would move to terminate parental rights if the parent fails to comply with the participation program.”), trans. denied.

Here, Parents were without the direction of a dispositional decree prior to DOS’s initial petitions for termination; this violation resulted in the reversal of the court’s initial termination order as fundamental error. N.Q., slip op. at 2. It is therefore troubling that DCS would then, at the Second Termination Hearing, rely almost entirely upon the transcript and exhibits from this hearing to prove that, as of October 1, 2012, Parents parental rights to the Children should be terminated. The timing requirements provided by Ind. Code § 31-35-2-4(b)(2)(A) are in place for a reason, namely, to insure that parents have an adequate opportunity to make the corrections necessary in order to keep their family unit intact. It would be bad policy to condone what occurred at the Second Termination Hearing, and it was error for the trial court to base its Termination Order primarily upon the evidence presented at the initial termination hearing.

Moreover, it was error for the court to issue its order which did not adequately consider the evidence presented by Parents of their current conditions, including Parents’ new income and their ability to keep current on their bills and maintain a clean residence. Indeed, the court also failed to consider the lack of evidence to the contrary presented by DCS, despite the fact that it was DOS’s burden to prove its case by a heightened “clear and convincing” standard. In re G.Y., 904 N.E.2d at 1260-1261. Our review of the record reveals that the crux of DOS’s presentation of evidence at the Second Termination Hearing was that the Children, who were ages six, seven, eight, and twelve at the time, did not want to leave their foster parents and be returned to Parents’ care. Also, the court’s lack of consideration of the evidence presented at the Second Termination Hearing is underscored by the fact that some of its findings which, although perhaps were correct findings of the conditions present on July 1, 2011, were directly contradictory to evidence presented by Parents and which DCS failed to refute in October 2012.

Although DCS demonstrated that the Children are thriving in a loving, pre-adoptive foster home, “a parent’s constitutional right to raise his or her own child may not be terminated solely because there is a better home available for the child.” In re D.B., 942 N.E.2d 867, 875 (Ind.Ct.App.2011) (citing In re K.S., 750 N.E.2d 832, 836 (Ind.Ct.App.2001)). Recognizing that the involuntary termination of parental rights is the most extreme measure that a court can impose and is only designated as a last resort when all other reasonable efforts have failed, In re A.I., 825 N.E.2d at 805, and in light of the fact that DCS chose to rely primarily on the initial termination proceedings which occurred a year-and-a-half prior to the October 1, 2012 Second Termination Hearing, that the Parents’ presented evidence that their current situation had changed significantly, and especially that DCS did not investigate the Parents’ current situation leading up to the Second Termination Hearing but chose rather to rely upon circumstances, some of which were over two years old, we conclude that the court committed clear error in terminating Parents’ parental rights to the Children. We reverse and remand for a hearing which fully considers the Parents’ current circumstances as well as their habitual patterns of conduct to the extent that such patterns exist.

CONCLUSION

For the foregoing reasons, we reverse the trial court’s order terminating the parent-child relationship between Parents and the Children, and we remand for proceedings consistent with this opinion.

Reversed and remanded.

NAJAM, J., and MATHIAS, J., concur.

      . Again, the Children include L.Q., a daughter born in 2006, Ja.Q., a son bom in 2005, Je.Q., a daughter born in 2004, and N.Q., a daughter bom in 2000.

      . Ind.Code § 31-35-2-4(b) provides in part that "a petition to terminate parental rights must meet the following relevant requirements: (2) The petition must allege: (A) that one (1) of the following is true: (i) The child has been removed from the parent for at least six (6) months under a dispositional decree. ...”

      . As of the October 1, 2012 hearing, C.Q. was a sophomore in high school.

      . We observe that the transcript from this consists of seventy pages, sixty-three of which constitute a recitation of the proceedings below.

      . We observe that Ind.Code § 31-35-2-4 was amended by Pub.L. No. 48-2012 (eff. July 1, 2012). The changes to the statute became effective after the filing of the termination petition involved herein and are not applicable to this case.

      . The July 1, 2011 order, or initial termination order, is not contained in the record.

      . We observe that Ind.Code § 31-34-20-1, titled “Entry of dispositional decrees; removal of child provides:
      (a) Subject to this section and section 1.5 of this chapter, if a child is a child in need of services, the juvenile court may enter one (1) or more of the following disposi-tional decrees:
      (1) Order supervision of the child by the department.
      (2) Order the child to receive outpatient treatment:
      (A) at a social service agency or a psychological, a psychiatric, a medical, or an educational facility; or
      (B) from an individual practitioner.
      (3) Remove the child from the child's home and authorize the department to place the child in another home or shelter care facility. Placement under this subdivision includes authorization to control and discipline the child.
      (4) Award wardship of the child to the department for supervision, care, and placement.
      (5) Partially or completely emancipate the child under section 6 of this chapter.
      (6) Order the child’s parent, guardian, or custodian to complete services recommended by the department and approved by the court under IC 31-34-16, IC 31-34-18, andIC 31-34-19.
      (7) Order a person who is a party to refrain from direct or indirect contact with the child.
      (8) Order a perpetrator of child abuse or neglect to refrain from returning to the child's residence.
      We also note that "[t]his Court has previously explained that ‘[f]or purposes of the element of the involuntary termination statute requiring a child to have been removed from the parent for at least six months under a disposi-tional decree before termination may occur ... such a dispositional decree is one that authorizes an out-of-home placement.' " In re D.D., 962 N.E.2d at 75 (internal quotations omitted) (quoting A.P. v. Porter Cnty. Office of Family & Children, 734 N.E.2d 1107, 1116 (Ind.Ct.App.2000), reh'g denied, trans. denied ).

      . While we acknowledge the statement of Indiana law that "even a complete failure to provide services would not serve to negate a necessary element of the termination statute and require reversal,” In re E.E., 736 N.E.2d 791, 796 (Ind.Ct.App.2000), we find that the lack of a dispositional decree on the record prior to DCS's filing of petitions for termination taints the proceedings held between January and April of 2011, and while we do not today hold that a record of such proceedings was inadmissible, we believe that the extent to which they were relied upon by DCS and the court is problematic at best.

      . We note that this case is unlike the situation in which this court reverses and remands with instructions to enter additional findings to support the judgment in accordance with Ind.Code § 31-35-2-4(b). See, e.g., In re J.Q., 836 N.E.2d 961, 967 (Ind.Ct.App.2005) (concluding that trial court’s judgment failed to adequately state its reasons for its disposition thereby necessitating reversal with instructions to "carefully follow the language and logic laid out by our legislature” in the CHINS and termination statutes), reh'g denied. In such a case, DCS is not required to reinitiate termination proceedings as there was no error with the proceedings themselves — rather, it is for the court to merely enter findings based on the initial proceedings complying with the statute. Here, by contrast, we held in N.Q. that DCS "failed to prove removal according to the mandates of [Indiana Code Section] 31 — 35—2—4(b)(2)(A)” and we remanded “for further proceedings consistent with this opinion.” Op. at *3 (emphasis added).
      We acknowledge that this court’s reversal in N.Q. was technical in nature, and we expressly noted that "our conclusion should in no way be construed as a comment upon the sufficiency of the evidence relating to the remaining elements of the termination petition.” Id. (internal quotations omitted). However, regardless of how Parents were given a "second bite at the apple” to refute DOS’s petition to terminate their parent-child relationship with the Children, the court was required to consider any changes in Parents’ circumstances at the time of the termination hearing, on October 1, 2012, which might support preserving the parent-child relationship. Indeed, assuming that DCS pushes forward with termination proceedings, Parents will receive a rare "third bite,” and the court shall consider the conditions as they exist at that time.


source: Caselaw Access Project

author: NAJAM, Judge.

license: Public Domain

text:
    David HOLBERT, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 49A05-1302-CR-54.
    Court of Appeals of Indiana.
    Oct. 8, 2013.

      Patricia Caress McMath, Marion County Public Defender Agency, Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Chandra K. Hein, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

David Holbert appeals his convictions for possession of marijuana, as a Class A misdemeanor, and public intoxication, as a Class B misdemeanor, following a bench trial. Holbert raises the following two issues for our review:

1. Whether the State violated Holbert’s rights under the Fourth Amendment to the United States Constitution or Article I, Section 11 of the Indiana Constitution when it stopped him and searched his person; and
2. Whether the State presented sufficient evidence to support his conviction for public intoxication.

We affirm in part and reverse and remand in part.

FACTS AND PROCEDURAL HISTORY

In the evening hours of August 4, 2012, Melissa Allen, a resident of Speedway, observed an unknown man twice cross her yard and enter her neighbor’s backyard. Allen then observed the man enter her neighbor’s garage. She called 9-1-1 to report a suspected burglary, and she described the man as an African-American male who was “wearing a yellow and blue jersey, dark colored pants[, and] with salt and pepper hair.” Transcript at 14. She reported to dispatch that the man was proceeding south along the public sidewalk on Tenth Street.

Officers Christopher Helmer and John Hammel of the Speedway Police Department promptly responded. They observed a man, Holbert, matching Allen’s description of the suspect walking south along Tenth Street. The officers activated their vehicle’s emergency lights and stopped Holbert. Allen, who had remained on the phone with dispatch, observed the officers stop the same man who had prompted her to call 9-1-1.

Upon stopping Holbert, the officers immediately placed him in handcuffs and patted him down for officer safety. The officers discovered a baggie of marijuana and a can of beer on Holbert’s person in the course of the pat down. After they had placed Holbert in handcuffs, the officers observed that Holbert’s eyes were glassy and bloodshot, he smelled of alcohol, he swayed while walking and standing, and his speech was “slow and slurred.” Id. at 66. The officers then brought Allen to Holbert’s location, and she identified him as the man she had observed entering her neighbor’s garage.

On August 6, the State charged Holbert with possession of marijuana, as a Class A misdemeanor, and public intoxication, as a Class B misdemeanor. During the ensuing bench trial, Holbert objected to the admission of the marijuana and evidence of his intoxication, which the trial court denied. The court found him guilty as charged and sentenced him accordingly. This appeal ensued.

DISCUSSION AND DECISION Issue One: Admission of Evidence

On appeal, Holbert first argues that the trial court abused its discretion when it admitted the evidence that was either seized or observed during the police stop. Our standard of review of a trial court’s admission or exclusion of evidence is an abuse of discretion. Speybroeck v. State, 875 N.E.2d 813, 818 (Ind.Ct.App.2007). A trial court abuses its discretion only if its decision is clearly against the logic and effect of the facts and circumstances before the court. Id. In reviewing the admissibility of evidence, we consider only the evidence in favor of the trial court’s ruling and any unrefuted evidence in the defendant’s favor. Dawson v. State, 786 N.E.2d 742, 745 (Ind.Ct.App.2003), trans. denied.

Holbert contends that the State’s seizure of his person was unreasonable under the Fourth Amendment to the United States Constitution and Article I, Section 11 of the Indiana Constitution. Both of those constitutional provisions protect citizens from unreasonable searches and seizures. See Hathaway v. State, 906 N.E.2d 941, 944-45 (Ind.Ct.App.2009), trans. denied. Generally, a search warrant is a prerequisite to a constitutionally proper search and seizure. Halsema v. State, 823 N.E.2d 668, 676 (Ind.2005). When a search or seizure is conducted without a warrant, the State bears the burden of proving that an exception to the warrant requirement existed at the time of the search or seizure. Id.

However, in Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the United States Supreme Court held that an officer may, consistent with the Fourth Amendment, conduct a brief investigatory stop when, based on a totality of the circumstances, the officer has a reasonable, articulable suspicion that criminal activity is afoot. Hardister v. State, 849 N.E.2d 563, 570 (Ind.2006). An investigatory stop allows a police officer to “temporarily freeze the situation in order to make an investigative inquiry.” Johnson v. State, 766 N.E.2d 426, 429 (Ind.Ct.App.2002), trans. denied. A Terry stop is a lesser intrusion on the person than an arrest and may include a request to see identification and inquiry necessary to confirm or dispel the officer’s suspicions. Id. (citing Hiibel v. Sixth Judicial Dist. Court of Nev., 542 U.S. 177, 185-89, 124 S.Ct. 2451, 159 L.Ed.2d 292 (2004)). Reasonable suspicion entails some minimal level of objective justification for making a stop, something more than an unparticularized suspicion or hunch, but less than the level of suspicion required for probable cause. Wilson v. State, 670 N.E.2d 27, 29 (Ind.Ct.App.1996) (citing United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989)). Indiana has adopted the Terry rationale in determining the legality of an investigatory stop under Article I, Section 11. Id.

Here, Holbert acknowledges that officers had reasonable suspicion to initiate a Terry stop but contends that that suspicion did not justify placing him in handcuffs. See Appellant’s Br. at 6. Holbert also asserts that the officers did not have proper justification to pat him down and that the officers could not have recognized the marijuana on his person through the plain feel doctrine. We cannot agree with any of these arguments.

It is beyond dispute that “an officer who stops a suspect on reasonable suspicion of [an inherently dangerous] offense may conduct a protective search.” N.W. v. State, 834 N.E.2d 159, 165 (Ind.Ct.App.2005) (quotation and alteration omitted), trans. denied. This right of the officer is “automatic whenever the suspect has been stopped upon the suspicion that he has committed, was committing, or was about to commit a type of crime for which the offender would likely be armed.” Id. It is equally well established that burglary is one such type of crime. Id. at 165-66.

There is no question that the officers stopped Holbert based on a reasonable suspicion that he had committed a burglary. Accordingly, their right to conduct a protective search by briefly placing him in handcuffs and frisking him was automatic. Further, in the course of executing this protective search the officers found marijuana on Holbert’s person, which they testified they immediately recognized, based on their experience and training, to be marijuana based on its feel. See Minnesota v. Dickerson, 508 U.S. 366, 375, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993). Thus, the officers properly stopped, frisked, observed, and seized the marijuana from Holbert, and the trial court did not abuse its discretion under either the federal or state constitution in the admission of this evidence.

Issue Two: Evidence of Public Intoxication

Holbert also argues that the State failed to present sufficient evidence to support his conviction for public intoxication, as a Class B misdemeanor. When reviewing a claim of sufficiency of the evidence, we do not reweigh the evidence or judge the credibility of the witnesses. Jones v. State, 783 N.E.2d 1132, 1139 (Ind.2003). We look only to the probative evidence supporting the judgment and the reasonable inferences that may be drawn from that evidence to determine whether a reasonable trier of fact could conclude the defendant was guilty beyond a reasonable doubt. Id. If there is substantial evidence of probative value to support the conviction, it will not be set aside. Id.

Historically, to prove public intoxication, as a Class B misdemeanor, it was enough for the State to show that the defendant was intoxicated while in a public place. See Moore v. State, 949 N.E.2d 343, 344 (Ind.2011). In Moore, the defendant consumed two beers at her sister’s house and called a friend to drive her home. En route, an officer pulled the friend’s car over on a public street for a nonfunctioning license plate light, and the officer cited the defendant for public intoxication. The defendant was subsequently convicted. This court reversed her conviction, but our supreme court affirmed it.

As a result of our supreme court’s decision in Moore, the General Assembly amended Indiana Code Section 7.1-5-1-3, effective July 1, 2012, to now state:

it is a Class B misdemeanor for a person to be in a public place or a place of public resort in a state of intoxication caused by the person’s use of alcohol ..., if the person:
(1) endangers the person’s life;
(2) endangers the life of another person;
(3) breaches the peace or is in imminent danger of breaching the peace; or
(4) harasses, annoys, or alarms another person.

Ind.Code § 7.1-5-l-3(a). The General Assembly’s addition of the four listed criteria “promotes public policy encouraging inebriated persons to avoid creating dangerous situations by walking, catching a cab, or riding home with a designated driver rather than driving while intoxicated.” Stephens v. State, 992 N.E.2d 935, 938 (Ind.Ct.App.2013). Thus, the amended statute reflects this court’s pre-Moore decisions that the ‘[t]he spirit of the public intoxication statute is to prevent people from becoming inebriated and then bothering and/or threatening the safety of other people in public places.’ ” Jones v. State, 881 N.E.2d 1095, 1098 (Ind.Ct.App.2008) (quoting Wright v. State, 772 N.E.2d 449, 456 (Ind.Ct.App.2002)).

Holbert argues that the State failed to meet its burden under the amended statute because, while he was plainly intoxicated in a public place, there is no evidence that he met any of the four enumerated criteria while in a public place. The State responds that Holbert’s behavior alarmed Allen when he walked across her yard and that she continued to be alarmed when she observed Holbert walking on the sidewalk. Thus, the State contends that it does not matter whether Holbert’s behavior in Allen’s yard, the behavior that initially alarmed her, did not occur in a public place because she remained alarmed after Hol-bert had entered onto the sidewalk.

This is a question of first impression in our interpretation of the amended statute. “When a statute has not previously been construed, our interpretation is controlled by the express language of the statute and the rules of statutory construction.” State v. Prater, 922 N.E.2d 746, 748 (Ind.Ct.App.2010), trans. denied. “We review the statute as a whole and presume the legislature intended logical application of the language used in the statute, so as to avoid unjust or absurd results.” Id. In other words, “we are obliged to suppose that the General Assembly chose the language it did for a reason.” Id. at 750.

Because the amended statute is relatively new, “we have little precedent concerning the new language.” Stephens, 992 N.E.2d at 938. In Stephens, the defendant was intoxicated but in his private residence when he engaged another man in an altercation. The defendant left his residence and called the police from a public parking lot. The police arrived and arrested him. The State charged him with public intoxication and the trial court convicted him of that charge, but we reversed his conviction on appeal, stating:

The mere fact that he was intoxicated in a public parking lot did not amount to a violation of the public intoxication statute. He did not breach the peace, and to the extent the trial court reasoned that he was in “imminent danger of breaching the peace” if he returned home, we find such a conclusion to be speculative.

Id. at 938.

We also considered the amended statute in Williams v. State, 989 N.E.2d 366 (Ind.Ct.App.2013). In that case, the defendant, while intoxicated, “refused to move off of the street and to the sidewalk although commanded by the police multiple times to do so”; “was belligerent with the officers”; “did not move out of the street until the officers physically escorted him off of the street”; “was staggering as the officers escorted him to the sidewalk”; and “jerked his arm away from [one officer] and shoved [another’s] hand away....” Id. at 370-71. We affirmed his conviction for public intoxication, as a Class B misdemeanor. Id. at 371.

Holbert’s case is closer to Stephens than to Williams. The behavior that alarmed Allen occurred while Holbert was on private property, not public property. And because the officers did not notice that Holbert was intoxicated until after they had stopped him and placed him in handcuffs, the State does not suggest that Holbert had placed himself in danger by walking down a public sidewalk, adjacent to a public roadway, while intoxicated. Thus, there is no evidence that Holbert engaged in any of the four listed criteria while he was in a public place.

This conclusion is supported by the text of the statute. Again, the statute provides that it is a Class B misdemeanor “to be in a public place ... in a state of intoxication ... if ’ the person is engaging in one of the four listed criteria. I.C. § 7.1-5-l-3(a). That is, the plain language of the statute conditions the entirety of the phrase “to be in a public place ... in a state of intoxication” on the occurrence of one of the four listed criteria. This reading is also consistent with this court’s recognition that “ ‘[t]he spirit of the public intoxication statute is to prevent people from becoming inebriated and then bothering and/or threatening the safety of other people in public places.’ Jones, 881 N.E.2d at 1098 (emphasis added) (quoting Wright, 772 N.E.2d at 456). Thus, the public intoxication statute requires that the prohibited behavior have occurred while the defendant was in a public place.

Moreover, “in interpreting a statute, we must consider not only what the statute says but what it does not say.” Curley v. Lake Cnty. Bd. of Elections & Registration, 896 N.E.2d 24, 34 (Ind.Ct.App.2008), trans. denied. The amended statute does not say, as the State’s argument suggests, that it is a Class B misdemeanor to be in a public place in a state of intoxication whenever one’s intoxication resulted in one of the four listed criteria. There is no question that Holbert’s behavior alarmed Allen, but there is also no question that his alarming behavior did not occur in a public place. Accordingly, we agree with Holbert that the State failed to present any evidence that he committed any of the four criteria listed in the public intoxication statute while in a public place and, as such, we must reverse his conviction for public intoxication, as a Class B misdemeanor. We remand with instructions that the trial court vacate Holbert’s public intoxication conviction.

Affirmed in part and reversed and remanded in part.

MATHIAS, J., and BROWN, J., concur.


author: BAKER, Judge.

text:
    In re the Marriage of L.C., Appellant-Respondent, v. T.M., Appellee-Petitioner.
    No. 32A01-1303-DR-91.
    Court of Appeals of Indiana.
    Oct. 9, 2013.

      Deborah M. Agard, Law Office of Deborah M. Agard, Indianapolis, IN, Attorney for Appellant.
   OPINION

BAKER, Judge.

In this case, appellant-respondent, L.C. (Mother) challenges the trial court’s denial of her petition to modify custody of the parties’ two children, K.M. and D.M. The original order that was entered in 2007 provided that Mother and appellee-peti-tioner, T.M. (Father), share both legal and physical custody over the children. Mother resides in Carmel where the children attended school and Father lives in Mooresville. Both of the children play in a Carmel travel soccer league that continues throughout the year.

Because of the logistics involved in the soccer league, the children’s desire to live with Mother, and other changed circumstances that have occurred since 2007, Mother filed a petition for custody modification that the trial court subsequently denied. Mother asserts that the trial court’s reliance on the parties’ initial agreed shared physical custody arrangement as a basis for denying the modification request is clearly erroneous because of the changed circumstances and modification is in the children’s best interests.

After reviewing the record, we believe that Mother presented sufficient evidence at trial warranting modification of custody. More particularly, Mother demonstrated that substantial changes in circumstances have occurred since the entry of the original decree, and that a change in the original physical custody order is in the children’s best interests. Therefore, we conclude that the trial court’s judgment denying Mother’s petition was clearly erroneous. Thus, we reverse the judgment of the trial court and remand this cause with instructions that an order be entered based on the evidence presented that modifies the custody arrangement in accordance with the children’s best interests.

FACTS

Mother and Father divorced in 2007, and submitted their partial custody, support, and property settlement agreement that the trial court approved on November 16, 2007. Under the agreement, the parents shared legal and physical custody of their children, D.M., born in 1999, and K.M., born in 2001. The children stay with Father, who resides in Mooresville, on Mondays, Tuesdays and alternate weekends from Friday through Sunday. They are with Mother on Wednesdays, Thursdays, and alternate weekends from Friday through Sunday. Mother lives in Carmel and the children are enrolled in the Carmel school system.

At some point, the trial court appointed a parenting coordinator for the family. Various orders were issued between September 2008, and April 2010, based on the parenting coordinator’s recommendations. These orders primarily concerned the parties’ reimbursement of expenses to each other, email exchanges, and counseling services.

In the trial court’s order of September 18, 2008, it was determined that

Father will enroll children in fall sports and cover the sign-up costs of each. Mother will enroll children in spring sports and cover the sign-up costs of each. Parents agree to purchase necessary equipment for each child for each sport to have at their house.

Appellant’s App. p. 24.'

When the children began the 2011-12 school year, the transportation arrangement changed so that all of Father’s parenting time exchanges occurred at the Sam’s Club parking lot on the west side of Indianapolis. On the days that D.M. and K.M. are scheduled to be in school, Father drives them from his home to the exchange point, and Mother or her husband picks up the children and takes them to school.

Mother enrolled KM. in travel soccer in the spring of 2012, and the program lasts the entire year. D.M. was in her second year playing for Carmel’s travel soccer team. Mother sought to modify the parties’ physical custody arrangement to better accommodate the children’s schedules, the travel distance between the parties’ residences, and the difficulties that the children were encountering when they stayed with Father.

Mother averred in her petition to modify custody filed on June 7, 2012, that substantial changes in circumstances had occurred. In particular, Mother contended that the children are required to spend many hours in the car being transported between Carmel and Mooresville, that the children expressed a strong desire to live with their mother, and that the children would benefit from having a structured routine primarily in their mother’s home. In fact, there were instances where the children had to do their homework in the car while being transported from one residence to another.

At the hearing that was conducted on November 12 and December 4, 2012, the Guardian ad Litem (GAL) testified that if the current arrangement is maintained, the children will become very angry with Father and it will “irreparably harm his relationship with his children.” Tr. p. 65-67. The GAL pointed out that because of the distance involved and the children’s desires to be with their friends, they— along with Mother — want to spend every other weekend with Father, rather than continuing to spend Mondays and Tuesdays at his residence. The children had also reported that there was some measure of distress they perceived as negative and disparate treatment of them in Father’s home as compared to the more favorable treatment of their step-siblings. The GAL also testified that the current arrangement will likely “drive a huge wedge between Dad and his children.” Id. at 66.

Following the GAL’s interviews with both parents, the step parents, the children, the parenting coordinator, a therapist, a prior GAL who has worked with the family, and the Carmel soccer coach, the GAL recommended that the parenting arrangement be modified such that:

1. [The children] spend every other weekend from Friday evening ... through Sunday ... with Father, and
2. All exchanges for the children will be at a parent’s home following the current Indiana Parenting Time Guideline recommendation that the receiving parent .picks up the child, and
3. If Father wishes to add a Sunday overnight to his weekend, Father is responsible for transporting the children to school on time for the start of school ... and
4. Father ensures that [the children] are at all commitments associated with their travel league soccer including practices, games and tournaments, and
5. If Father is unable, unwilling, incapable of fulfilling his obligation to getting the children to their soccer commitments that he forego his parenting time with [D.M.] and/or [K.M.], alternately Father may make appropriate timely arrangements for [D.M.] and/or [K.M.] to meet the commitments (carpooling, asking Mother to facilitate, etc.), and
6. Father is encouraged but not required to exercise a mid-week visit (no overnight) with the children (as soccer practices may well be during these evenings), and
7. If at all possible Father is encouraged to attend practice, scrimmage, or games as often as he is reasonably able to do so, and
8. The parents should continue to work with the Parenting Coordinator ... regarding the extended parenting time (school breaks, summer, etc.).

GAL Rpt. p. 16.

Following the hearing, the trial court determined that Mother’s enrollment of K.M. in the travel soccer league was a direct violation of the 2008 order that requires Mother to enroll the children in spring sports, and Father to enroll them in fall sports. Moreover, the trial court found that Mother failed to prove that a substantial change has occurred in at least one of the statutorily enumerated factors set forth in Indiana Code section 31-17-2-8. In denying Mother’s petition to modify custody, the trial court specifically found that

8. The Court understands that travel between the parents’ homes is inconvenient but these parents agreed to joint legal and joint physical custody of the children and equal parenting time. A significant part of the inconvenience here stems from the children’s involvement in soccer. Both parents support the children’s involvement in soccer. Therefore, the parents and children must accept and deal with the personal inconvenience that the children’s soccer programs create.

Appellant’s App. p. 21. Mother now appeals.

DISCUSSION AND DECISION

As noted above, Mother argues that the trial court erred in denying her motion to modify custody. Specifically, Mother contends that the trial court’s reliance on the parties’ original shared custody arrangement as a basis for denying the petition misapplies the law that governs custody modifications. Mother argues that the evidence established that the physical custody arrangement should be modified because the circumstances have substantially changed since the entry of the original decree, and that modification is in the children’s best interests.

I. Standard of Review

We initially observe that Father did not file an appellee’s brief. When an appellee does not submit a brief, we do not undertake the burden of developing arguments for that party. Spencer v. Spencer, 990 N.E.2d 496, 496 (Ind.Ct.App.2013). Instead, we apply a less stringent standard of review and may reverse if the appellant establishes prima facie error. Id. Prima facie error is “error at first sight, on first appearance, or on the face of it.” Van Wieren v. Van Wieren, 858 N.E.2d 216, 221 (Ind.Ct.App.2006).

Custody modification lies within the sound discretion of the trial court, and the decision will be reversed only upon a showing of manifest abuse of discretion. Fields v. Fields, 749 N.E.2d 100, 107-08 (Ind.Ct.App.2001). Such an abuse occurs when the trial court’s decision is clearly against the logic and effect of the facts and circumstances before the court. Id. at 108. We will neither judge the credibility of witnesses nor reweigh the evidence. Id.

Neither party requested, nor did the trial court enter, special findings in this case; therefore, it should be reviewed under the general judgment standard. Shelby Eng’g Co. v. Action Steel Supply, Inc., 707 N.E.2d 1026, 1027 (Ind.Ct.App.1999). Under this standard, the judgment will be affirmed if it can be sustained on any legal theory consistent with the evidence. Id.

II. Denial of Motion for Custody Modification

Indiana Code section 31-17-2-21 provides that a court may not modify a custody order unless the petitioner shows that (1)the modification would be in the best interests of the child, and that (2) a substantial change has occurred in one or more of the following facts a court must consider under Indiana Code section 31-17-2-8:

(1) The age and sex of the child.
(2) The wishes of the child’s parent or parents.
(3) The wishes of the child, with more consideration given to the child’s wishes if the child is at least fourteen (14) years of age.
(4) The interaction and interrelationship of the child with:
(A) the child’s parent or parents;
(B) the child’s sibling; and
(C) any other person who may significantly affect the child’s best interests.
(5) The child’s adjustment to the child’s:
(A) home;
(B) school; and
(C) community.
(6) The mental and physical health of all individuals involved.
(7) Evidence of a pattern of domestic or family violence by either parent.
(8) Evidence that the child has been cared for by a de facto custodian, and if the evidence is sufficient, the court shall consider the factors described in section 8.5(b) of this chapter.

In addressing the issues that Mother presents, we first deem it necessary to discuss this court’s opinion in D.C. v. J.A.C., 966 N.E.2d 158 (Ind.Ct.App.2012), along with our Supreme Court’s subsequent grant of transfer in that case.

In D.C., the parties had one son, B.C., born to the marriage in 2003. The marriage was dissolved on December 4, 2008. The parties shared legal custody of B.C., subject to Father’s parenting time of three overnight visits per week and two weekends per month.

On June 7, 2010, Mother filed a verified notice of intent to relocate, citing the reason for the relocation as a change in employment as a hospital director in Tennessee. At the time, Mother was working at St. Vincent Hospital in Indianapolis and earning an annual salary of $52,000. Not only was this advanced position essentially unavailable to her in the Indianapolis market, but it also came with a salary increase of over $30,000. Mother then filed a motion for temporary order permitting relocation. While this motion was pending, Mother took B.C. and moved to Hendersonville, Tennessee, near Nashville. The trial court denied Mother’s motion for a temporary location change on August 17, 2010. The trial court ordered that Mother return B.C. to Hendricks County, and she complied. Id. at 161.

On August 4, 2010, Father filed a motion to modify custody and prevent the relocation of B.C. and requested an evidentiary hearing. Following a hearing, the trial court issued its ruling, finding in part that:

Though Mother has repeatedly set forth in pleadings and through her testimony that her stated reason for relocation to Tennessee is new and better employment; the Court finds that her relationship with Jeffrey Jackson is the primary reason for her relocation. Mother moved into Mr. Jackson’s home in Tennessee upon her relocation. Mother’s relationship with Mr. Jackson and her current employment with a more regular work schedule, shorter shifts and a significantly higher salary of $84,400 are legitimate reasons and purpose. Mother’s relocation was made in good faith.

Id. (emphasis in original).

The trial court then noted that the burden was on Father to demonstrate that the relocation is not in B.C.’s best interests. The trial court recognized that the 300-mile distance that the relocation would create between Father and B.C. and the current high gasoline prices, but acknowledged that Father had already purchased a fuel-efficient vehicle to accommodate the increased driving for parenting time exchanges. It also observed that “[i]f the non-custodial parent would be able to conduct parenting time on a 3 day weekend, [B.C.] would be in a vehicle for 20 hours of a 72 hour weekend.” Id.

The trial court returned to Mother’s reasoning for relocating, noting:

Mother was well-employed in Indiana at St. Vincent’s Hospital with a salary of $52,000. As previously set forth, Mother’s salary has been significantly increased by her new employment. However, the primary reason for Mother’s relocation is her relationship with Mr. Jackson.

Id. at 13 (emphasis added).

Mother appealed, and we noted that her evidence and stated reason for relocating was to accept employment, with a shorter work schedule and a higher salary of $84,000, which was a significant gain from her current salary at St. Vincent Hospital in Indianapolis of $52,000. Nonetheless, the trial court found that Mother’s relationship with another individual was the primary reason for her relocation. Id. at 163.

In our opinion, we noted that Mother’s acceptance of a new position in Nashville “would permit Mother to advance beyond the position of registered nurse, which is an advancement not available in the Indianapolis market without additional education and the breakdown of institutional barriers. Moreover, the salary difference of $32,400 is certainly not inconsequential and would provide additional opportunities for Mother and B.C.” Id. We also noted that Mother has been B.C.’s primary caregiver and was awarded primary physical custody of B.C. following the dissolution of her and Father’s marriage. We then commented that

While we recognize that Father would not have as much contact with B.C. as he had previously enjoyed before the relocation, ‘if a relocation that deprives one parent of daily or weekly time with a child could never be in the child’s best interests, then the statute would never allow for a long-distance move when the nonrelocating parent has exercised parenting time, as it plainly does in the proper circumstances.’

Id. at 163.

As a result, we concluded that, when considering all of the facts and circumstances, the trial court’s order was clearly erroneous and we remanded with instructions “that the trial court be mindful of the relocation when establishing Father’s parenting time.” Id. at 164.

As noted above, our Supreme Court subsequently granted Father’s petition for transfer, and observed that

Appellate deference to the determinations of our trial court judges, especially in domestic relations matters, is warranted because of their unique, direct interactions with the parties face-to-face, often over an extended period of time. Thus enabled to access credibility and character through both factual testimony and intuitive discernment, our trial judges are in a superior position to ascertain information and apply common sense, particularly in the determination of the best interests of the involved children.

D.C. v. J.A.C., 977 N.E.2d 951, 956 (Ind.2012) (quoting Best v. Best, 941 N.E.2d 499, 502 (Ind.2011)).

It also observed that ‘“on the other hand, appellate courts are in a poor position to look at a cold transcript of the record, and conclude that the trial judge, who saw the witnesses, observed their demeanor, and scrutinized their testimony as it came from the witness stand, did not properly understand the significance of the evidence.’ ” Id. at 956-57 (quoting Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind.2002)).

Notwithstanding the facts and circumstances set forth above regarding Mother’s evidence that she presented at the hearing and her stated reasons for relocation, our Supreme Court affirmed the trial court’s decision, observing that

Contrary to the Court of Appeals’s assertion, the trial court here did not base its conclusion that relocation was not in the best interest of Child solely on the fact that Father would not have as much contact with Child. We agree with the Court of Appeals that there is no blanket rule that a relocation that deprives a parent of time with a child is always against the best interest of the child. But a trial court can, and in fact must, take into account the child’s relationship with parents, which is a best-interest factor listed in Indiana Code section 31-17-2-8(4)(A). Here, the trial court considered Father and Child’s relationship, among a host of other factors.
Accordingly, we cannot conclude, consistent with the applicable clear-error standard of review, that there are no facts to support the trial court’s judgment either directly or by inference. In fact, the trial court had ample support for its decision.

Id. at 957.

We are certainly mindful of our Supreme Court’s opinion in D.C. that admonishes against appellate reversal of custody orders and the reminder of the great deference afforded to trial courts in custody matters. However, we do not believe that the rationale espoused in D.C. stands for the proposition that an appellate court’s hands should be so inextricably bound against reversing decisions that do not serve the children’s best interests and promote stability. Indeed, continuity and stability in the life of children is an important component in determining the proper custodial arrangement for a child. Carmi chael v. Siegel, 754 N.E.2d 619, 636 (Ind.Ct.App.2001).

In this case, Mother presented evidence in accordance with Indiana Code section 31-17-2-21, establishing that the existing shared physical custody order was no longer in the children’s best interests and there had been substantial changes in the circumstances since the entry of the prior custody order that warranted modification. Indeed, the children were six and eight years old when the original custody order was issued in 2007. However, they were eleven and thirteen at the time of the 2012 modification hearing.

The GAL pointed out in her report that Most children ease away from their parents opting for more time spent among their peers as they seek to find their own way. It is not uncommon that parents who cling too tightly and ‘over control’ their child when the child seeks to become more independent find that the child that they love reacts by becoming ‘resentful,’ ‘distant,’ and/or ‘hateful in their demeanor towards the loving parent.’ Estrangement between the child and parent can be short lived or last a lifetime.

GAL Rpt. at 15.

Additionally, as discussed above, the GAL testified at the modification hearing that the children’s wishes had changed and that they had become distressed in light of the negative, disparate treatment they were receiving when compared to the better treatment that their step-siblings were receiving. Tr. p. 1-23, 57-58, 91, 98. In fact, the children were “adamant” that the parenting and custody schedule should change, and they felt that the environment in Father’s home was “hostile.” Id. at 57-58, 67. Also, KM expressed his desire to play in the Carmel soccer program because he. believed that it was more challenging than the Mooresville program.

The GAL recognized that as the children grew older, the danger of resentment increased as Father’s rigid and authoritarian parenting style remained constant. Also, the GAL’s report indicated that the “interpersonal relationships in Father’s home between Stepmother, D.M., and K.M., are troubling. If the home environment is hostile and angry as described by the children, reducing the amount of exposure is appropriate and strongly desired by the children.” GAL Rpt. p. 15.

The GAL also testified that

Well we can talk about distance. We can talk about travel soccer. We can talk about, you know, the school and their friends and all that. We can talk about their maybe rocky relationship within Dad’s household. What I fundamentally think that this really — the change needs to happen, the kids are very adamant that this is what they want. They have good reasons for it. I feel that if Dad holds firm to his cwrrent position, the kids are going to be so angry and so disenfranchised it will irreparably harm his relationship with his children for a long time and I would like to save that relationship. It’s not about the kids getting what they want and Dad losing everything. Absolutely not. I would love for Dad to be more involved with the kids and that maintain itself. He wants to be. He talks a good game but at this point if they are forced to continue in the current Monday, Tuesday at Dad’s, Wednesday, Thursday at Mom’s and alternating Friday, Saturday, Sunday at either parent[’]s, it’s going to drive a huge wedge between Dad and his children. ... would love to see Dad fully engaged in the kids and get his head around you know, that he is going to be a car dad. I hate to say that but I can see every other weekend is what the kids have asked for. Friday night through Sunday night. I suggest adding on to Monday morning if he can get them to Carmel school on time, not doing the exchange at Sam’s Club. I mean, we’re not young kids anymore. We’re pre-teens and teenagers and encourage Dad to come up and participate in a mid-week visit. I don’t think that the overnights work, and I think they need to, you know, kind of be settled. Dad says that they’re staying, spending so much time on the school bus any way, what difference does it make to travel. They’re with their peers. It makes a big difference.

Tr. p. 65-67 (emphases added).

The unrefuted evidence shows that the children informed the GAL that they wanted the schedule to change to alternate weekends with Father. GAL Rpt. p. 5-6. D.M. considered her involvement in the travel soccer league to be the center of her universe and aspired to play in high school and perhaps even college. Id. at 4. D.M.’s coach believed that such an aspiration was realistic in light of her talent. Id. at 15.

As noted above, the evidence also showed that the children have a difficult time having their friends at Father’s house because of the logistics that are involved in transportation. The drive time from Father’s residence to Mother’s house — not including the exchange of the children — is approximately one hour. Id. at 6. It was also established that the children were unable to maintain friendships with their peers in Carmel while visiting with Father on an equal-time basis in Mooresville.

The children’s relationship with Father, step-mother, and step-siblings deteriorated as the children grew older. K.M. in particular believed that they were treated differently in Father’s home than the stepchildren, citing the step-children’s ability to play soccer on Sundays, while Father’s children were prohibited from doing so because of his desire that the children attend church. Id. at 22-24. D.M. often felt “interrogated” when she talked with Father on the telephone. Id. at 21-22.

The Parenting Coordinator testified that “the problem is not limited to soccer. These folks live — they might as well be living in two states. I mean they are living far apart and for all of the children’s activities, whether it’s school, the logistics really have become consuming-time consuming problem for both parents to organize, try to reorganize, changes when their schedules change or the kids’ change.” Tr. p. 13. She also noted that the children were doing their homework in the car and that Father’s job requires him to be present for a certain number of hours that creates logistical difficulties regarding his ability to drive to Carmel. Id. at 14. Father wants Mother to deliver the children in Mooresville, and the Parenting Coordinator observed that the transportation issues have been a “logistic nightmare” and the current arrangement is very problematic for the children. Id. at 14-15.

In short, the professionals that the trial court appointed to assist this family observed that the current shared physical custody arrangement was not working for the children. Tr. p. 15, 19, 56, 65-67, 70. The Parenting Coordinator concluded that the parents’ differing parenting styles— Father as more rigid and authoritarian, and Mother as a little more laid back-makes “for a difficult shared co-parenting and joint legal and physical custody” arrangement. Id. at 12.

In our view, the trial court’s determination that the parties should remain bound to their shared physical custody arrangement, despite the intervening changes that affect the children’s welfare and best interest, cannot stand. The evidence showed that the children are negatively affected by maintaining the current schedule in light of the changes discussed above. Put another way, it is apparent that the trial court did not consider the reasonableness of the original and modified orders in determining the children’s best interests; nor did it weigh the children’s need for stability against any benefit derived from modified custody.

As a result, we believe that the evidence presented at the hearing established that a modification of custody would be in the children’s best interest, and that Mother established that a substantial change had occurred in at least one of the factors set forth in Indiana Code section 31-17-2-8. That said, we conclude that the trial court’s refusal to modify the shared physical custody order is prima facie error. Moreover, extensive evidence was presented that the children’s best interests compel such a change. Thus, we reverse the judgment of the trial court and remand this cause with instructions that an order be entered based on the evidence presented that modifies the custody arrangement in accordance with the children’s best interests.

The judgment of the trial court is reversed and remanded.

FRIEDLANDER, J., and VAIDIK, J., concur.

      . Although the trial court also found that it would not reward Mother for violating the 2008 order that required her to sign up the children for spring sports and for Father to sign them up for fall sports, it has been held that isolated incidents of misconduct should not form the basis for modifying custody because it would "impermissibly punish the parent for noncompliance with the custody agreement.” Hanson v. Spolnik, 685 N.E.2d 71, 78 (Ind.Ct.App.1997). Similarly, we believe that this rule should apply to custody modifications. Here, there was no evidence that Mother and K.M.’s wishes for K.M. to participate in a year-round soccer program amounted to an “egregious violation of that order placed a child's welfare at stake.” Id.