author: BAKER, Judge.

text:
    Floyd WEDDLE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 73A01-1209-CR-452.
    Court of Appeals of Indiana.
    June 19, 2013.

      Russell A. Johnson, Heath Y. Johnson, Suzy St. John, Johnson, Gray & MacAbee, Franklin, IN, Attorneys for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Brian L. Reitz, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BAKER, Judge.

In this case, the appellant-defendant Floyd Weddle challenges the trial court’s admission of certain evidence after police officers conducted a protective sweep of his residence and subsequently searched the premises following the issuance of a search warrant. Weddle claims that the scope of the protective sweep violated both the Fourth Amendment to the United States Constitution and Article I, Section 11 of the Indiana Constitution because the allegedly impermissible broad protective sweep of the residence led to the police officers’ discovery of drugs and paraphernalia.

We find that the scope of the protective sweep of the residence was reasonable because the officers heard additional movement in the house after taking Weddle into custody, indicating that another individual might be inside and thus presenting a risk of harm to them. The police officers did, in fact, locate other persons in the house. Therefore, the evidence that the police officers seized during the subsequent search of the residence was properly admitted at trial, and we affirm the judgment of the trial court.

FACTS

On October 15, 2010, at approximately 10:33 a.m., several officers from the Shelby County Sheriffs Department went to Wed-dle’s residence to serve him with an arrest warrant for the crimes of theft and false informing. At some point, Detective Darren Chandler had learned that Weddle and/or Vicki Hall were manufacturing and dealing in methamphetamine. Detective Chandler knew that Hall had been purchasing Sudafed, which contains pseu-doephedrine, from a local CVS drugstore.

When they arrived at Weddle’s residence, the officers saw two vehicles parked outside. One was registered to Weddle and the other to Hall. Detective Chandler also had additional information that April Adams, who had children with Weddle, sometimes stayed at Weddle’s residence.

Deputy Sheriff Larry Allen and Detective Chandler approached Weddle’s front porch, while Sergeant James Thurman walked to the side of the house. The officers noticed surveillance cameras on the front porch and near the garage.

Detective Chandler knocked on the front door of Weddle’s residence, announced his presence several times, and identified himself as a police officer. Immediately thereafter, the officers saw the blinds on Wed-dle’s front door move and heard movement inside the house. At that time, the officers decided to enter the house. The door was unlocked, and they walked in at 10:35 a.m. Deputy Allen testified that the front room looked like a “pig sty,” with “trash piled up.” Tr. p. 8, 15-17, 386. The officers saw Weddle in that room and placed him in custody at 10:36 a.m.

Sergeant Thurman and Detective Chandler heard additional movement in the back of the house and believed that there was another individual in the residence. Detective Chandler also heard noises from the back of the house. Detective Chandler asked Weddle if anyone else was in the house, and Weddle responded that Hall was in the bedroom. Sergeant Thurman heard a female voice, went into the bedroom, and saw Hall. He immediately ordered Hall to the living room.

Detective Chandler then asked Weddle whether anyone else was in the residence. Weddle stated that he “was not sure.” Tr. p. 63, 99, 456. Following Weddle’s response, the officers commenced a protective sweep of the residence. Sergeant Thurman stated they performed the task “so that we’re not both stuck in one area and trapped and ambushed.” Id. at 50, 456. Detective Chandler explained that the protective sweep amounted to a “quick look through the house to look for people” so that no one could “come up behind us, you know, with a gun, a knife or whatever, to make sure we’re safe standing in that house.” Id. at 457.

Detective Chandler walked toward the back of the house, through an open door, and moved “very quickly” through each room, searching for other individuals. Id. at 64, 67,101. In one of the rooms, Detective Chandler smelled an odor that he associated with the manufacture of methamphetamine and saw a marijuana plant in plain view on a work bench. In the back room, Detective Chandler observed a green blanket hanging from the wall, saw feet behind the blanket, and found a woman crouched behind the blanket. Detective Chandler escorted the woman to the front of the house at 10:42 a.m. The woman stated that she had no identification.

The identifying information that the woman initially supplied to the officers was not verifiable through police dispatch, which further raised the officers’ suspicions. The officers subsequently learned that the woman was Lindsay Burton, and a warrant for her arrest had been issued in Johnson County. Deputy Allen then arrested Burton and transported her to jail.

The officers ended the protective sweep after Burton was arrested. Detective Chandler testified that he did not search the entire residence; there were a “couple [rooms unsearched].” Tr. p. 105, 458. Moreover, the blanket was the only item that Detective Chandler looked behind during the protective sweep. Deputy Allen did not enter any of the other rooms, and Sergeant Thurman never went past the room where Hall was located.

Although Detective Chandler asked Weddle for his consent to search the remainder of the residence, Weddle refused. As a result, Detective Chandler obtained a search warrant and executed it at approximately 12:30 p.m. Indiana State Police Chemist Carl Sobieralski arrived at the scene and found two mason jars containing clear liquids, some coffee filters, an off-white substance, several plastic funnels, a one-gallon bottle of Crown Toluol, an organic solvent, pseudoephedrine, anhydrous ammonia, and ten marijuana plants.

Sobieralski testified that the items found in the residence were indicative of a methamphetamine laboratory. Samples of the liquids tested positive for methamphetamine, and the plants were confirmed as marijuana.

On October 15, 2010, Weddle was charged as follows:

Count I — Manufacturing Methamphetamine, a class A felony
Count II — Possession of Methamphetamine, a class B felony
Count III — Possession of Drug Lab Precursors, a class D felony
Count IV — Maintaining a Common Nuisance, a class D felony
Count V — Possession of Marijuana, a class A misdemeanor
Count VI — Possession of Marijuana, a class A misdemeanor.

Appellant’s App. p. 24-25,101-02.

On May 18, 2011, Weddle filed a motion to suppress, claiming that the police officers’ search of his residence was unconstitutional because he did not consent to the search. Weddle also alleged that the protective sweep of the residence exceeded the scope of a search that was allowable under the arrest warrant. As a result, Weddle claimed that his rights under the Fourth Amendment and Article I, Section 11 of the Indiana Constitution were violated. Following a hearing, the trial court denied Weddle’s motion to suppress on July 22, 2011.

We denied Weddle’s motion to accept jurisdiction of this case as an interlocutory appeal, and following a three-day jury trial that commenced on February 28, 2012, Weddle was found guilty as charged. Weddle was sentenced to an aggregate term of thirty-five years in the Indiana Department of Correction (DOC). The trial court subsequently granted Weddle’s motion to correct error in part and vacated the conviction in Count V. Weddle now appeals.

DISCUSSION AND DECISION

Weddle raises several arguments that we consolidate and restate as follows: Whether the scope of the protective sweep and warrantless search of the residence that the officers conducted were unreasonable under the Fourth Amendment to the United States Constitution and Article I, Section 11 of the Indiana Constitution? As a result, Weddle contends the trial court erred in admitting the evidence at trial that the police seized from the residence.

We initially observe that the decision to admit or exclude evidence is within the trial court’s sound discretion. Johnson v. State, 831 N.E.2d 163, 168-69 (Ind.Ct.App.2005). We will reverse only upon a showing of manifest abuse of discretion that results in the denial of a fair trial. Id. We do not reweigh the evidence and will consider conflicting evidence in a light most favorable to the trial court’s ruling. Cole v. State, 878 N.E.2d 882, 885 (Ind.Ct.App.2007).

I. Fourth Amendment Claims

Weddle argues that his convictions must be set aside because the police officers performed an impermissibly broad protective sweep of the entire residence, which resulted in the discovery of the drugs and paraphernalia. As a result, Weddle argues that the trial court should have excluded all of the evidence that was seized during the alleged improper search.

When executing an arrest warrant, a law enforcement officer may break open any outer or inner door or window, if he is not admitted inside following an announcement of authority and purpose. State v. Estep, 753 N.E.2d 22, 26 (Ind.Ct.App.2001); Ind.Code § 35-33-2-3(b). Thereafter, protective sweeps may be conducted, which our Supreme Court has observed as follows:

[A]s an incident to the arrest the officers could, as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched. Beyond that, however, we hold that there must be articulable facts- which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene.

Maryland v. Buie, 494 U.S. 325, 334-35, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990); see also Estep, 753 N.E.2d at 26.

A protective sweep is authorized under Buie either of rooms immediately adjoining the place of the arrest or of areas that might, given facts articulable by the searching officer, contain a hiding person who might jeopardize officers’ safety. Buie, 494 U.S. at 334-35, 110 S.Ct. 1093.

Notwithstanding this pronouncement, Weddle maintains that the evidence demonstrated that the alleged broad protective sweep in this ease was improperly performed as a matter of police department routine, and Weddle claimed that he “was not sure” if anyone else was in the house. Appellant’s Br. p. 12. Weddle also points out that Officer Allen stated that he did not hear anyone else in the house after Weddle had been secured. And Officer Thurman testified that although he heard movement after first encountering Weddle, he could not tell where the noise was coming from or how many people were in the house.

Weddle claims that because Detective Chandler did not actually know whether there was another person in the house, there was no justification for such a broad protective sweep. As a result, Weddle contends that the police officers’ actions were contrary to the rule set forth in Scott v. State, which provides that

[t]he combined knowledge of the facts that the manufacture of methamphetamine can be dangerous and that there were possibly other individuals on the property that were capable of causing bodily harm would cause any reasonable police officer to see the immediate need to identify any remaining persons on the property, and insure they did not pose a risk of harm.

803 N.E.2d 1231, 1236 (Ind.Ct.App.2004). Weddle suggests that although both his vehicle — and Hall’s — were at the residence and it was reasonable to infer that they were both inside, it was unreasonable for the officers to infer that there was someone else inside who might pose a danger to them.

Also, while Weddle argues that the officers’ entry into one of the adjoining rooms was appropriate, he claims that Detective Chandler’s search of additional rooms was not. In other words, Weddle claims that the officers had no reason to believe that a dangerous individual might have been inside the home.

In support of these contentions, Weddle asserts that the trial court’s reliance on Hannibal v. State, 804 N.E.2d 206 (Ind.Ct.App.2004), is misplaced. In Hannibal, police officers were serving a drug-related arrest warrant on Hannibal and a class A felony arrest warrant on Hall, who resided with Hannibal. The officers knew that “Hannibal had been investigated for handgun-related offenses and Hall had been in incidents involving firearms, resisting law enforcement, and serious bodily injury.” Id. at 208. When knocking on the apartment door, a detective “noticed the apartment’s window blinds move and heard the sound of running.” Id. The door to the apartment was then opened by Hannibal’s two-year-old son. Id. at 209.

Hannibal immediately ran to the door, slammed it on the police officers, and locked it. The officers then forced their way into the residence. Id. at 208. Following the arrests, the police officers had to make arrangements for Hannibal’s child. Because of the officers’ knowledge of the details surrounding Hall’s arrest warrant, Hannibal’s and Hall’s criminal histories, and the concern that some other individual may have run upstairs to another room, the officers performed a protective sweep of the apartment because they were uncomfortable standing with their backs to the apartment. Id. at 209.

On appeal, this Court concluded that the protective sweep was valid under the Fourth Amendment. More specifically, it was determined that “the officers had reasonable suspicion to believe their safety was threatened by the possible presence of an individual on the second floor.” Id. at 209-10. Also, the officers’ knowledge of Hall and Hannibal “gave them good reason to believe the two might be — or associate with those who are — disposed to safety-threatening activity.” Id. The evidence also showed that the police officers had reason to believe that someone might have been on the second floor because one of the detectives heard a noise like someone was running up the stairs. Id. at 210.

Weddle urges that this case is distinguishable from Hannibal because the officers did not go to Weddle’s house to serve an arrest warrant for a serious, violent felony or for a drug-related offense. The officers also did not have prior knowledge suggesting that Weddle was dangerous or that he was known to associate with dangerous individuals.

Notwithstanding Weddle’s claims, we find that the protective sweep of Wed-dle’s residence was justified because the police officers searched only adjoining rooms from which an attack could immediately occur. See Buie, 494 U.S. at 334, 110 S.Ct. 1093 (holding that police officers may look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched). And in interpreting Buie, at least one federal court of appeals has specifically held that Buie permits the police to “walk through rooms adjacent to the one in which they make an arrest to ensure that no danger lurks within.” United States v. Brown, 64 F.3d 1083, 1086 (7th Cir.1995).

In this case, Detective Chandler testified that he moved through “open doors” into the “connecting rooms of the residence.” Tr. p. 79, 459. The floor plan of the house demonstrates that an attack could take place immediately from those unconnected rooms.

We further find that the protective sweep was permissible because the officers had specific articulable facts that an individual, who could jeopardize their safety, was hiding in the back of the house. Relying on the rationale in Hannibal, the police officers may search rooms that are not immediately adjacent to the area of the arrest when there is reasonable suspicion that the rooms might contain a person who is hiding and may jeopardize officer safety. 804 N.E.2d at 209. At least one court has determined that

[ojfficers should not be forced to suffer preventable risk of ambush, even where a location is so isolated that the officers could conceivably be protected without entering the area. An ambush in a confined setting of unknown configuration is more to be feared than if it were in the open, more familiar surroundings.

United States v. Tapia, 610 F.3d 505, 511 (7th Cir.2010).

As discussed above, the evidence established that when the officers knocked and announced their presence, several individuals were heard inside moving around but no one answered the door. Tr. p. 6-7, 13-14, 23, 25, 60, 384. The police officers also had information that Weddle and/or Hall were involved in the manufacture and dealing of methamphetamine.

After securing Weddle, the police officers found Hall in another room, but she was initially uncooperative. The officers then heard movement in the back of the house, which they believed indicated at least one other person was present. In fact, the officers had particular information that another person, Adams, might be present. Tr. p. 98,112,114, 514.

Immediately thereafter, Detective Chandler asked Weddle if anyone else was in the house. Weddle was evasive and stated that he was “unsure” if anyone else was there. Id. at 63-64, 99, 456. In light of these circumstances, it was reasonable for the police to conduct the protective sweep of the residence. In fact, it may very well have been irresponsible for the police officers not to proceed in this manner. And they did, in fact, find Burton, who was wanted on an arrest warrant, hiding in the back of the house. Id. at 78, 90, 101, 461-62.

The State also correctly points out that Detective Chandler did not search the entire residence. Tr. p. 105, 458. In fact, the only item that the officers even moved was the blanket where they observed Burton’s feet protruding from the bottom of it while hiding from the police. Id. at 78, 90, 101, 461-62. Also, the officers ceased the five-minute protective sweep as soon as they found Burton. In short, Weddle’s claim that the scope of the protective sweep was excessive under the Fourth Amendment fails.

II. Indiana Constitution

Notwithstanding our conclusion that the protective sweep and warrantless search of the adjoining rooms in the residence did not violate the Fourth Amendment, Wed-dle contends that the police officers’ actions violated the provisions of Article I, Section 11 of the Indiana Constitution. More specifically, Weddle argues that “vague references to ‘movement,’ if any, from unknown sources and locations, and the absence of articulable facts suggesting the presence of a dangerous individual in the home, shows a lack of need to sweep the entire house.” Appellant’s Br. p. 21.

The purpose of Article I, Section 11 is “to protect from unreasonable police activity, those areas of life that Hoosiers regard as private.” Trotter v. State, 933 N.E.2d 572, 580 (Ind.Ct.App.2010). Although the language of Article I, Section 11 tracks the Fourth Amendment verbatim, Indiana has explicitly rejected the expectation of privacy as a test of the reasonableness of a search or seizure. Litchfield v. State, 824 N.E.2d 356, 359 (Ind.2005). Instead, the legality of a governmental search under the Indiana Constitution turns on an evaluation of the reasonableness of police conduct under the totality of the circumstances. Id.

The reasonableness of a search or seizure depends on a balance of: “1) the degree of concern, suspicion, or knowledge that a violation has occurred; 2) the degree of intrusion the method of the search or seizure imposes on the citizen’s ordinary activities; and 3) the extent of law enforcement needs.” Id. at 361. The burden is on the State to show that the intrusion was reasonable in light of the totality of the circumstances. Hathaway v. State, 906 N.E.2d 941, 945 (Ind.Ct.App.2009).

In this case, Weddle does not succeed in his claim that the degree of intrusion was beyond what was necessary to execute the arrest because the officers had sufficient concern or knowledge that a “knowing violation had occurred” under the first factor under Litchfield. The officers also learned that Weddle may have been involved in drug dealing and, therefore, could reasonably presume that armed and dangerous individuals could be present in the residence. Once Weddle had been arrested, the police officers heard additional movement, thus indicating that someone else was in the back of the house. In our view, these facts and circumstances supplied the officers with a high degree of concern that another person could be hiding in the house and attack them.

The second factor in Litchfield — the degree of intrusion — similarly weighs in favor of the protective sweep. Specifically, the officers legally entered Weddle’s unlocked residence to serve an arrest warrant when he refused to answer the door. I.C. § 35 — 33—2—3(b); Estep, 753 N.E.2d at 26. Weddle was placed in custody at 10:36 a.m., and the officers immediately conducted the low-intrusion protective sweep— quickly moving from room-to-room looking only for people, not searching containers or the like, and moving only the blanket after viewing Burton’s feet behind it. Tr. p. 101, 105, 459. The protective sweep lasted only about five minutes. Id. at 17, 89-90, 103, 457-58, 545. In short, the degree of intrusion was low.

Finally, the circumstances establish that the extent of the police officers’ need not to be ambushed or attacked was high. The police officers certainly had the right to serve Weddle with the arrest warrant, to enter the residence after Weddle’s refusal to let them in, and to protect their safety. Also, as discussed above, Weddle provided evasive answers about who was in the house based on the noise that came from the back of the house. Tr. p. 31, 45, 47-49, 51, 63-64, 99-100, 102, 116-17, 401, 455-56.

In our view, the circumstances here supplied the officers with a high degree of concern that another individual could be hiding in the house and attack them. Hence, the protective sweep and the subsequent search following the issuance of the search warrant were reasonable under the Indiana Constitution. Therefore, the trial court did not err in admitting the items into evidence that the police officers had seized during the search of the residence.

The judgment of the trial court is affirmed.

MAY, J., and BRADFORD, J., concur.

      . We heard oral argument in this case on May 22, 2013, in Indianapolis. We commend counsel for their able presentations.


source: Caselaw Access Project

author: WENTWORTH, J.

license: Public Domain

text:
    Dora BROWN, Ben Kindle, and Sonjia Graf, Petitioners, v. DEPARTMENT OF LOCAL GOVERNMENT FINANCE, Respondent.
    No. 49T10-0912-TA-83.
    Tax Court of Indiana.
    May 24, 2013.
    Beth H. Henkel, Kelli A. Arnold, Law Office of Beth Henkel LLC, Indianapolis, IN, Attorneys for Petitioners.
    Gregory F. Zoeller, Attorney General of Indiana, Jessica E. Reagan, Deputy Attorney General, Indianapolis, IN, Attorneys for Respondent.
   WENTWORTH, J.

Dora Brown, Ben Kindle, and Sonjia Graf appeal the final determination of the Department of Local Government Finance (DLGF) approving the Gregg Township Board’s loan resolution for the 2010 tax year. The Petitioners allege that the DLGF’s final determination must be reversed because it is contrary to law, not supported by substantial evidence, and in violation of their constitutional rights. The Court affirms the DLGF’s final determination in part and remands it in part.

FACTS AND PROCEDURAL HISTORY

Gregg Township is located in northwest Morgan County, Indiana. The Township encompasses 25 square miles of land and has a population of approximately 3,000. The Township is primarily rural, as there are no incorporated municipalities within its borders. The Township contracts with a private volunteer fire department (the only one in the Township) for the provision of its fire protection services.

On June 2, 2009, the Gregg Township Board issued a resolution, pursuant to Indiana Code § 36-8-13, authorizing the Township to incur a loan for the purchase of a fire engine. Specifically, the loan proceeds, not to exceed $400,000, would be used to replace the Township’s current frontline pumper, a 1992 Darley.

The Petitioners subsequently filed an objection petition stating, among other things, that the decision to incur a loan to purchase a new fire engine was unnecessary and unwise because “[t]he fire apparatus [] we currently have is sufficient enough to provide the fire services needed in our township.” (Cert. Admin. R. at 2.) Moreover, the objection petition asserted that because the new fire engine would also be used by the fire department to serve the fire protection needs of other townships, Gregg Township taxpayers should not bear the entire cost of the loan. The Morgan County Auditor forwarded the Petitioners’ objection petition to the DLGF. On August 11, 2009, the DLGF conducted a hearing on the matter.

During the hearing, Fire Chief Larry Hayes testified that because of its advanced age, the 1992 Darley did not comply with current National Fire Protection Association (NFPA) standards designed to keep the firefighters safe while they travel to and from the scene of an emergency, and lacked numerous features that new fire-fighting vehicles have. (See Cert. Admin. R. at 384-437, 566-67.) For instance, the current vehicle lacked roll-stability controls, anti-lock brakes, seat belts, backup cameras, helmet restraints, and the capability to control the mirrors from inside the vehicle. (Cert. Admin. R. at 384-437, 441-42, 568, 572-73, 578.) Chief Hayes also explained that the current vehicle had only 110 cubic feet of storage area and could not hold all the fire-fighting equipment now required to be on board (ie., requirements imposed after 1992), and as a result, the fire department often must respond with more than one vehicle. (See Cert. Admin. R. at 443, 580-81 (explaining that new fire-fighting vehicles have approximately 155 cubic feet of storage area).) Furthermore, he testified that because the current vehicle is grossly underpowered, it is difficult to maneuver it on and around the Township’s narrow, hilly roads and residential lanes. (See Cert. Admin. R. at 577-78, 580, 583-84, 587-88.) (See also Cert. Admin. R. at 532-33 (where Petitioner Graf acknowledges that the Township’s roads and residential driveways are difficult to maneuver).) Finally, Chief Hayes explained that the current vehicle has been in two accidents since its acquisition and that the damage to the vehicle from these accidents has also led to recurring vehicle maintenance problems beyond normal wear and tear. (See Cert. Admin. R. at 381, 562-63, 569-70.) In light of Chief Hayes’s testimony, Carol Snyder, the Township’s Trustee, explained that she had a duty as the Trustee to ensure that the Township (and thus the fire department with which it has contracted) has the equipment necessary to respond to an emergency: because the Township is “dealing with old[ ] and antiquated equipment that may or may not get [the fire department] to the scene, it’s time for us to start looking into alternatives[.]” (See Cert. Admin. R. at 554.)

On November 12, 2009, the DLGF issued a final determination approving the loan in its entirety:

The Department of Local Government Finance has reviewed [the Gregg Township Board’s] approval of a purchase of firefighting apparatus in the amount of $400,000 and the taxpayer objection to this purchase. After a review, the Department of Local Government Finance, pursuant to IC 86-8-13-6.5, and in consideration of all evidence provided, finds as follows:

Approved:

The purchase of firefighting apparatus in the amount of $400,000. The Indiana Tax Court has stated that the “decision as to how to best provide firefighting services within [a] township is one that properly lies with the local fire department and the [Township] Board.... [T]he DLGF [is] required to determine whether substantial evidence supports] that policy decision.” Perry v. Ind. Dep’t of Local Gov’t Fin., 892 N.E.2d 1281, 1286-1287 (Ind. Tax Ct.2008).
Therefore, the DLGF is not in the position to determine the necessity of this purchase, only whether or not the purchase and approval of the Township Board is supported by substantial evidence. The Department received significant testimony and hard copy evidence about the need for a new front-line pumper, including evidence that the current pumper has been involved in accidents and [has had] maintenance problems, that the pumper does not provide adequate safety for the firefighters while traveling to the scene of a fire, and a desire to be compliant with NFPA 1901 Standard for Firefighting Apparatus.

(Cert. Admin. R. at 11.)

The Petitioners subsequently filed this original tax appeal. On October 14, 2011, the Court heard oral arguments. Additional facts will be supplied as necessary.

STANDARD OF REVIEW

The Petitioners, in challenging the propriety of the DLGF’s final determination, bear the burden of demonstrating its invalidity. See Scopelite v. Indiana Dep’t of Local Gov’t Fin., 939 N.E.2d 1138, 1145 (Ind. Tax Ct.2010). Thus, the Petitioners must demonstrate to the Court that the DLGF’s final determination is arbitrary, capricious, an abuse of discretion, unsupported by substantial evidence or in contravention of the law. See State Bd. of Tax Comm’rs v. Gatling Gun Club, Inc., 420 N.E.2d 1324, 1326-29 (Ind.Ct.App.1981) (discussing the limited nature of the scope of judicial review of administrative agency decisions in general). See also Scopelite, 939 N.E.2d at 1147; DeKalb Cnty. E. Cmty. Sch. Dist. v. Dep’t of Local Gov’t Fin., 930 N.E.2d 1257, 1260-61 (Ind. Tax Ct.2010); Clark-Pleasant Cmty. Sch. Corp. v. Dep’t of Local Gov’t Fin., 899 N.E.2d 762, 769 (Ind. Tax Ct.2008) (discussing the Court’s scope of judicial review in DLGF cases).

ANALYSIS AND DECISION

On appeal, the Petitioners argue that the DLGF’s final determination must be reversed for three reasons. First, they argue that the final determination is contrary to law. Second, they argue that the DLGF’s final determination is not supported by substantial evidence. Finally, the Petitioners argue that the DLGF’s final determination violates certain rights guaranteed to them under Indiana’s Constitution.

I.

Indiana Code § 36-6-6-14 authorizes a township to borrow money if it finds there is “a need for fire and emergency services or other emergency requiring the expenditure of money not included in [its] budget estimates and levy.” See Ind.Code § 36-6-6-14(a),(b) (2009). The Petitioners explain that to determine whether a fire and emergency services need exists, Indiana Code § 36-6-6-14 requires that a township board and any other reviewing authority consider eight factors that the Petitioners refer to as the “needs analysis.” (See Oral Argument Tr. at 31-32.) On appeal, the Petitioners assert that because the DLGF’s final determination cites the Tax Court’s Perry decision alone, the DLGF must have failed to consider the eight factors set forth in Indiana Code § 36-6-6-14(d), and therefore, the DLGF’s final determination is contrary to law. (See Oral Argument Tr. at 31-32; Petrs’ Br. at 21-26.) ■

Indiana Code § 36-6-6-14 authorizes a township to borrow money for “non-budgeted” emergency items. See I.C. § 36-6-6-14. Here, however, the Gregg Township Board’s loan resolution sought to borrow money pursuant to its authority to make a capital purchase under an entirely different statutory scheme, Indiana Code § 36-8-13. (See Cert. Admin. R. at 20.) Indeed, Indiana Code § 36-8-13-3 authorizes a township to

[p]urchase firefighting and emergency services apparatus and equipment for the township, provide for the housing, care, maintenance, operation, and use of the apparatus and equipment to provide services within the township ... and employ full-time or part-time personnel to operate the apparatus and equipment to provide services in that area.

Ind.Code § 36-8-13-3(a)(l) (2009). See also Ind.Code §§ 36-8-13-6, -6 (2009) (explaining that a township may either make an appropriation from its budget or borrow money from a financial institution to make the purchase). Neither Indiana Code § 36-8-13 nor Indiana Code § 36-6-6-14(d) indicate that they are somehow interdependent. Accordingly, the DLGF was not required to perform the “needs analysis” set forth in Indiana Code § 36-6-6-14(d) before it approved the Gregg Township Board’s loan resolution under Indiana Code § 36-8-13. Therefore, the Court is not persuaded by the Petitioners’ first claim that the DLGF’s final determination is contrary to law.

II.

Next, the Petitioners argue that the DLGF’s final determination is not supported by substantial evidence. For example, they assert that in approving the Gregg Township Board’s loan resolution, the DLGF improperly afforded Fire Chief Hayes’s testimony too much weight because as an employee of the fire department, his interests are aligned with those of the fire department and not with those of the Township. (Oral Argument Tr. at 13-16; Petrs’ Br. at 14-19 (claiming that Hayes’s testimony merely went to why the fire department wanted a new vehicle, not why the Township needed it).) The Petitioners also explain that the Township’s evidence is conclusory, claiming for example that if the current vehicle had in fact been in various accidents, the Township should have presented the DLGF with “pictures evidencing damage[ as well as] invoices for [the vehicle’s] repair[.]” (Petrs’ Br. at 16 (footnote added).) Accordingly, the Petitioners maintain that the Township’s evidence demonstrates nothing more than Fire Chief Larry Hayes’s desire to have a new toy. (See Cert. Admin. R. at 534, 591.)

The Court will find that the DLGF’s final determination is not supported by substantial evidence if it determines that a reasonable person, upon reviewing the administrative record in its entirety, could not find enough relevant evidence to support the Township’s loan resolution decision. See Amax Inc. v. State Bd. of Tax Comm’rs, 552 N.E.2d 850, 852 (Ind. Tax Ct.1990). In making that determination, the Court cannot reweigh the evidence contained in the administrative record nor can it judge the credibility of the witnesses who testified at the administrative hearing. See Freudenberg-NOK Gen. P’ship v. State Bd. of Tax Comm’rs, 715 N.E.2d 1026, 1030 (Ind. Tax Ct.1999) (citations omitted), review denied. Here, however, the Petitioners have invited the Court to do exactly that: they invite the Court to reweigh the evidence, to judge the credibility of the Township’s witnesses, or to hold that the Township should have presented some other evidence for the DLGF to consider. (See, e.g., Petrs’ Br. at 20 (requesting that the Court give no weight to the Township’s evidence).) These invitations are not within the Court’s prerogative. See Freudenberg-NOK Gen. P’ship, 715 N.E.2d at 1030. Accordingly, the Court is not persuaded that the DLGF’s final determination is not supported by the evidence. See Clark-Pleasant Cmty. Sch. Corp., 899 N.E.2d at 765 (citations omitted) (explaining that the Court will give deference to any reason the DLGF bases its final determination on as long as that reason is supported by substantial evidence).

III.

Finally, the Petitioners claim that the DLGF’s final determination wrongly requires the taxpayers of Gregg Township to bear the entire cost of the loan even though the fire department will use the new vehicle to respond to calls outside Gregg Township. (Petrs’ Br. at 27-32.) Thus, allege the Petitioners, the DLGF’s final determination violates both Article 1, Section 23 and Article 10, Section 1 of the Indiana Constitution.

While the Petitioners raised this argument at the administrative hearing, the DLGF failed to address it in its final determination. (Cf. Cert. Admin. R. at 528-30, 533, 536 with Cert. Admin. R. at 11.) In reviewing the administrative record, the Court notes that the parties presented competing evidence with respect to this issue. Accordingly, the Court remands this issue to the DLGF so that it may fulfill its duty to review the evidence, weigh it, and make a determination thereon.

CONCLUSION

Based on the foregoing reasons, the DLGF’s final determination is AFFIRMED in part and REMANDED in part. On remand, the DLGF is instructed to take action consistent with this opinion.

      . For example, Indiana Code § 36-6-6-14(d) requires consideration of, among other things, the public safety payroll needs of the township, prior and budgeted annual expenditures for fire and emergency services, and the projected growth in a township’s assessed value of property requiring protection. Ind. Code § 36-6~6-14(d)(l), (6), (7) (2009).

      . For example, during the DLGF hearing, the Petitioners requested that the DLGF reject any and all evidence submitted by the Township that was not on letterhead. (See Cert. Admin. R. at 513.).

      . Article 1, § 23 of the Indiana Constitution provides that "[t]he General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms, shall not equally belong to all citizens.” Ind. Const, art. 1, § 23. The Petitioners allege that by approving the Township’s loan resolution, the DLGF has provided a privilege to those who live outside the Township (t.e., they do not have to pay taxes for the purchase of a fire truck from which they benefit) that is not equally shared by those who live in the Township (and who must pay for the purchase of the same fire truck in its entirety). (See Petrs' Br. at 27-29.).
      Article 10, § 1 of the Indiana Constitution requires (1) uniformity and equality in assessment, (2) uniformity and equality as to rate of taxation, and (3) a just valuation for taxation of all property. Ind. Const, art. 10, § 1. The Petitioners allege that this constitutional provision requires that the cost of purchasing the new fire truck be borne, on a pro-rata basis, by all who benefit from its use. (See Petrs’ Br. at 29-32.)

      . The Court reviewed an almost identical issue involving the same parties in a 2010 not-for-publication opinion. See In re: Emergency Fire Loan for Gregg Twp., Cause No. 49T10-0909-TA-52, slip op. at 12-15, 2010 WL 3418234 (Ind. Tax Ct. Aug. 31, 2010). The Court is confident that that opinion will assist the DLGF in reviewing the evidence on remand.


author: DAVID, Justice.

text:
    Michael D. PERKINSON, Jr., Appellant (Petitioner below), v. Kay Char PERKINSON, Appellee (Respondent below).
    No. 36S05-1206-DR-371.
    Supreme Court of Indiana.
    June 25, 2013.

      Amy 0. Carson, Indianapolis, IN, Attorney for Appellant.
    Thomas J. Lantz, Seymour, IN, Attorney for Appellee.
   DAVID, Justice.

The concept of parents negotiating away parenting time as a means to eliminate the obligation to pay child support is repugnant and contrary to public policy. Attorneys should refuse to be a part of such discussion and should advise their clients that any such discussion is unacceptable. Here, an agreement to forego parenting time in exchange for relief from child support is declared void against public policy.

In addition, under the circumstances of this case, the trial court’s prohibition against parenting time is not supported by the record. Trial courts are equipped with a plethora of options and a broad range of discretion to tailor each decision to the particular circumstances. However, their discretion is not absolute. We reverse the decision of the trial court which prohibited the father from exercising any parenting time with his child and provided no means by which he could earn parenting time.

Facts and Procedural History

Michael D. Perkinson (Father) married Kay Char Perkinson (Mother) in October 2004. [Appellant’s App. 56.] In August 2005, Mother gave birth to L.P. In September 2005, Father filed a petition for dissolution of the marriage. Father exercised parenting time with L.P. during the dissolution proceeding. Father also exercised parenting time with A.P., his child from a previous relationship.

A dissolution decree was entered in February 2006. It distributed marital assets and debts between Father and Mother and set out child support payments for L.P. Father and Mother entered into an agreement in which Father agreed to waive his parenting time rights in exchange for Mother assuming sole financial responsibility and waiving enforcement of Father’s child support arrearage.

The agreement also set out that if Father sought parenting time in the future, “he shall be obligated to pay any support arrearage through the date of the approval” of the agreement by the trial court. The agreement was approved by the court in March 2006.

In February 2008, Father filed a verified petition for modification of parenting time, seeking to reestablish visitation with L.P. The trial court denied that petition in April 2008. Father filed a motion to correct error in May 2008, which was denied by the trial court in July 2008. In December 2010, Father filed a second verified petition for modification of parenting time. In March 2011, a hearing was conducted on the petition and the trial court again denied his petition. Father submitted a motion to correct error in March 2011 and in June 2011, the trial court denied the motion to correct error. The Court of Appeals reversed and remanded. We granted transfer.

Discussion

Father appeals from the trial court’s denial of his motion to correct error. We review a trial court’s denial of motion to correct error for an abuse of discretion, reversing only where the trial court’s judgment is clearly against the logic and effect of the facts and circumstances before it or where the trial court errs on a matter of law. Hawkins v. Cannon, 826 N.E.2d 658, 663 (Ind.Ct.App.2005), trans. denied.

When the trial court enters findings sua sponte, the specific findings will not be set aside unless clearly erroneous. Hanson v. Spolnik, 685 N.E.2d 71, 76 (Ind.Ct.App.1997), trans. denied. “A finding is clearly erroneous when there are no facts or inferences drawn therefrom which support it.” Id. at 76-77. We neither reweigh the evidence nor judge the credibility of the witnesses. Id. at 77. We consider only the evidence and reasonable inferences drawn therefrom that support the findings. Id. We review the trial court’s legal conclusions de novo. Mansfield v. McShurley, 911 N.E.2d 581, 589 (Ind.Ct.App.2009).

This is ultimately a decision about parenting time, which requires us to “give foremost consideration to the best interests of the child.” Marlow v. Marlow, 702 N.E.2d 733, 735 (Ind.Ct.App.1998), trans. denied. Parenting time decisions are reviewed for an abuse of discretion. Id. Judgments in custody matters typically turn on the facts and will be set aside only when they are clearly erroneous. Baxendale v. Raich, 878 N.E.2d 1252, 1257 (Ind.2008). “We will not substitute our own judgment if any evidence or legitimate inferences support the trial court’s judgment.” Id. 1257-58.

The landmark Supreme Court case Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000), did an extensive historical analysis of parental rights in this country. “The liberty interest at issue in this case — the interest of parents in the care, custody, and control of their children — is perhaps the oldest of the fundamental liberty interests recognized by this Court.” Id. at 65, 120 S.Ct. 2054. “It is cardinal with us' that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.” Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 88 L.Ed. 645 (1944). “The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition.” Wisconsin v. Yoder, 406 U.S. 205, 232, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972).

A. Parenting Time Rights Cannot Be Contracted Away

It is incomprehensible to this Court to imagine that either parent would ever stipulate to give up parenting time in lieu of not paying child support. It has long been established by this Court that “[a]ny agreement purporting to contract away these [child support] rights is directly contrary to this State’s public policy of protecting the welfare of children.” Straub v. B.M.T., 645 N.E.2d 597, 600 (Ind.1994). See also Trent v. Trent, 829 N.E.2d 81, 86 (Ind.Ct.App.2005). In Halum v. Halum, 492 N.E.2d 30, 38 (Ind.Ct.App.1986), the Court of Appeals held that a “custodial parent may not bargain away the children’s right to support.” Such agreements between parents are void as a matter of public policy and our trial courts should be very careful not to allow the results which occurred in this case.

Even if it is not in a child’s best interest to visit with a parent, it is still in that child’s best interest to be financially supported by that parent. “It is well established that the right to child support lies exclusively with the child and that a custodial parent holds the support payments in trust for the benefit of the child.” Sickels v. State, 982 N.E.2d 1010, 1013 (Ind.2013) citing In re Hambright, 762 N.E.2d 98, 101 (Ind.2002); Hicks v. Smith, 919 N.E.2d 1169, 1171 (Ind.Ct.App.2010), trans. denied. Custodial parents who receive child support funds act as a trustee, and, “as a constructive trustee, [the custodial parent] may not contract away the benefits of the trust.” Nill v. Martin, 686 N.E.2d 116, 118 (Ind.1997). To do so would violate the fiduciary duty the custodial parent owes the child in relation to any child support funds.

Furthermore, the clause of the agreement purporting to obligate the Father to pay any support arrearage if he sought parenting time in the future acts to discourage the Father’s future involvement with his child. As our Court of Appeals previously held, “[visitation rights and child support are separate issues, not to be comingled. A court cannot condition visitation upon the payment of child support if a custodial parent is not entitled to do so.” Farmer v. Farmer, 735 N.E.2d 285, 288 (Ind.Ct.App.2000).

“Indiana has long recognized that the right of parents to visit their children is a precious privilege that should be enjoyed by noncustodial parents,” and thus a noncustodial parent is “generally entitled to reasonable visitation rights.” Duncan v. Duncan, 843 N.E.2d 966, 969 (Ind.Ct.App.2006) (citing, inter alia, Ind.Code § 31-17-4-1), trans. denied. Indiana Code section 31-17-4-2 states that parenting time rights shall not be restricted unless there is a finding “that the parenting time might endanger the child’s physical health or significantly impair the child’s emotional development.” A trial court is empowered to specify and enforce the visitation rights of the non-custodial parent pursuant to Indiana Code.

The Court of Appeals first addressed the appropriate standard for denying parenting time to a noncustodial parent in Stewart v. Stewart, 521 N.E.2d 956 (Ind.Ct.App.1988). In Stewart, the Court of Appeals reviewed the statutory language with respect to eliminating or restricting parenting time by a non-custodial parent. The Court of Appeals wrote:

Neither party suggests that the word “might” in the statute (“visitation by the parent might endanger the child’s physical health or significantly impair his emotional development”) requires only a mere possibility that the physical or mental health of the child would be endangered or impaired. In view of the nature of the parental right being cut off, such a construction would be an absurd one. Why would the legislature acknowledge the basic right of visitation of a noncustodial parent and then effectively abolish that right by permitting terminations supported only by speculative, possibility-type evidence. Thus, we have no hesitation in concluding that statute requires evidence establishing that visitation “would” (not “might”) endanger or impair the physical or mental health of the child.

Stewart, 521 N.E.2d at 960, n. 3, trans. denied. This has been the test utilized by the trial courts since Stewart. One of the fundamental rules of statutory construction is that the “failure of the Legislature to change a statute after a line of decisions of a court of last resort giving the statute a certain construction, amounts to an acquiescence by the Legislature in the construction given by the court, and that such construction should not then be disregarded or lightly treated.” Miller v. Mayberry, 506 N.E.2d 7, 11 (Ind.1987) (superseded by statute on other grounds), Blanch v. Ind. Dep’t of Corr., 829 N.E.2d 505 (Ind.2005); Heffner v. White, 221 Ind. 315, 318-19, 47 N.E.2d 964, 965 (1943); Baker v. Compton, 247 Ind. 39, 211 N.E.2d 162 (1965); Thompson v. Mossburg, 193 Ind. 566, 139 N.E. 307 (1923); Department of Revenue v. United States Steel Corp., 425 N.E.2d 659 (Ind.Ct.App.1981); Terre Haute Savings Bank v. Indiana State Bank, 177 Ind.App. 690, 380 N.E.2d 1288 (1978); Economy Oil Corp. v. Indiana Department of State Revenue, 162 Ind.App. 658, 321 N.E.2d 215 (1974); C & G Potts & Co. v. Fortney, 117 Ind.App. 195, 69 N.E.2d 752 (1946).

In D.B. v. M.B.V., father filed a request for mid-week parenting time. 913 N.E.2d 1271, 1273 (Ind.Ct.App.2009). After hearing testimony and evidence from numerous individuals, including a custody evaluator, guardian ad litem, and court appointed visitation supervisor, the trial court ordered that father have no parenting time with the children. Id. However, the Court of Appeals remanded and encouraged an order of supervised parenting time, noting the facts did not “approach the egregious circumstances in which we have previously found that parenting time may be terminated, such as when a parent sexually molests a child.” Id. at 1275. The Court of Appeals also noted that “our parenting time statute does not provide for the elimination of parenting time because reunification counseling has proved unusually challenging.” Id. The Court of Appeals held there may not be any restrictions unless the parenting time “would” endanger the child’s physical health or emotional development. Id. at 1274.

In In re Paternity of P.B., 932 N.E.2d 712, 718 (Ind.Ct.App.2010), the trial court denied mother’s request to terminate father’s parenting time. In that case, there were allegations that father held a gun to child’s head and engaged in sexual gratification in child’s presence. Id. at 715. The child’s therapist and pediatrician testified in support of mother to the trial court but DCS unsubstantiated the allegations. The Court of Appeals held the “effect of Mother’s motion to modify and terminate parenting time, if successful, is to essentially terminate parental rights while still maintaining the requirements of parental financial responsibility ... and, worse yet, cutting a child off from the parent.” Id. at 720. (internal quotations omitted) (emphasis omitted).

Furthermore in In re Paternity of W.C., the Court of Appeals stated that a court must “make a specific finding of physical endangerment or emotional impairment before placing a restriction on the noncustodial parent’s parenting time.” 952 N.E.2d 810, 816 (Ind.Ct.App.2011) (citations omitted). The party who is seeking “to restrict parenting time rights bears the burden of presenting evidence justifying such a restriction” by a preponderance of the evidence. Id. The trial court relied strictly on the custodial parent’s journal to terminate the noncustodial parent’s visitation rights. In reversing, the Court of Appeals cited the lack of “egregious circumstances” and mother’s desire to be part of the child’s life. Id. at 817.

As the Court of Appeals cases demonstrate, for twenty-five years, our courts have interpreted this statute to the higher threshold of the word “would” without any intervention from the legislature. Our neighboring states have equally similar language.

Indiana is not alone in recognizing a noncustodial parent’s right of visitation with his or her own children. Ohio held “the right of visitation, albeit not absolute, should be denied only under extraordinary circumstances.” Pettry v. Pettry, 20 Ohio App.3d 350, 352, 486 N.E.2d 213, 215 (1984); accord Sholty v. Sherrill, 129 Ariz. 458, 632 P.2d 268 (1981); Devine v. Devine, 213 Cal.App.2d 549, 29 Cal.Rptr. 132 (1963); In re Two Minor Children, 53 Del. (3 Storey) 565, 173 A.2d 876 (1961); Wilson v. Wilson, 73 Idaho 326, 252 P.2d 197 (1953); Willey v. Willey, 253 Iowa 1294, 115 N.W.2d 833 (1962); Radford v. Matczuk, 223 Md. 483, 164 A.2d 904 (1960); Syas v. Syas, 150 Neb. 533, 34 N.W.2d 884 (1948); Kresnicka v. Kresnicka, 42 A.D.2d 607, 345 N.Y.S.2d 118 (1973); Bussey v. Bussey, 148 Okla. 10, 296 P. 401 (1931); Venable v. Venable, 273 S.C. 96, 254 S.E.2d 309 (1979); Slade v. Dennis, 594 P.2d 898 (1979); Block v. Block, 15 Wis.2d 291, 112 N.W.2d 923 (1961). Illinois has held, “[tjhere is a presumption [non-eustodial parent] is entitled to reasonable visitation rights unless visitation would endanger seriously [child’s] physical, mental, moral, or emotional health.” In re J.W., 362 Ill.Dec. 111, 118, 972 N.E.2d 826 (Ill.App.Ct.2012).

As if the forgoing rationales were not supportive enough to deny effect to the parenting agreement in question here, there is yet another reason to do so. The Indiana Parenting Time Guidelines explicitly declares that “[a] child has the right both to support and parenting time ...” Ind. Parenting Time Guidelines § 1(E)(5) (emphasis added). This is not mere surplusage; Indiana has both long recognized the best interest of the child as being paramount in any custody consideration, see Buchanan v. Buchanan, 256 Ind. 119, 267 N.E.2d 155, 158 (1971), and has a legislatively-expressed presumption in favor of parenting time with the noncustodial parent. See Ind.Code § 31-17-4-2. The derivative of these dual declarations is that, not only does a noncustodial parent have a presumed right of parenting time, but the child has the correlative right to receive parenting time from the noncustodial parent because it is presumed to be in the child’s best interest. Just as allowing an agreement purporting to contract away a child’s right to support must be held void, an agreement to contract away a child’s right to parenting time, where the presumption that such parenting time is in the child’s best interest has not been defeated, must also be held void as a matter of public policy. This is consistent with the idea expressed in Stanley v. Illinois where our Supreme Court held the parent-child relationship “undeniably warrants deference and, absent a powerful countervailing interest, protection.” 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). Every child deserves better than to be treated as nothing more than a bargaining chip.

Finally, it is necessary for the trial court to make specific findings to support its parenting time order. In Farrell v. Lit-tell, the trial court did not make specific findings that visitation would endanger the child’s physical health or well-being or significantly impair the child’s emotional development and absent such a finding, the lower court did not have the authority to restrict father’s parenting time with the child. 790 N.E.2d 612, 618 (Ind.Ct.App.2003). In Duncan v. Duncan, the trial court made specific findings in denying father’s request to establish parenting time. 843 N.E.2d 966, 968 (Ind.Ct.App.2006), trans. denied. In Duncan, the father was arrested and charged with molesting his adopted daughter over a ten year period. Those are specific facts, and no such facts are present in the current case.

We agree with our brethren at the Court of Appeals and with the majority of the states. Extraordinary circumstances must exist to deny parenting time to a parent, which necessarily denies the same to the child. If the trial court finds such extraordinary circumstances do exist, then the trial court shall make specific findings regarding its conclusion that parenting time would endanger the child’s physical health or significantly impair the child’s emotional development. Therefore, the focus now shifts to whether there were specific findings of egregious or extraordinary circumstances that support the court’s denial of Father’s parenting time.

B. Application to this Case

Some of the greatest challenges a trial court will ever face are challenges in parenting time cases. This is one of those cases. For two years, Father was not in contact with L.P. However, for the past five years, the record is clear that Father has attempted to reenter L.P.’s life. He has twice petitioned the court for parenting time. He is currently raising a child younger than L.P. and has parenting time with his first born. These facts do support Father’s position that he no longer wants to remain disconnected from L.P.

Father believed that he and Mother agreed that he could reenter L.P.’s life at any time by paying child support arrearag-es. The record reflects Father was willing to pay the arrearages. Father provided the trial court with documentation of his efforts to maintain contact with L.P., including requests to Mother to visit L.P. Father has relocated, remarried, and had a third child. Father exercises parenting time with his older child from 6:00 p.m. on Friday until 8:00 a.m. on Tuesday. Father’s younger child lives with him and his wife. There is no evidence in the record that Father has a criminal record, or any abuse charges on any children. Mother argues that Father was verbally abusive to her and neglected L.P. as a child.

The trial court in the present case makes a finding that parenting time “would not be in the child’s best interest and would create significant emotional harm to her” but provides insufficient facts to support its finding other than its footnote asking “How do you explain to a six (6) year old that her Father exchanged time with her for money?” As horrific as that rhetorical question is, Mother agreed to it. And Mother’s attorney prepared the documentation.

In this case, Mother did not offer any DCS reports, therapist reports, or expert testimony to show that parenting time between Father and L.P. would not be in the child’s best interest. We understand Mother went through significant emotional turmoil in being a single mother while putting herself through college and testified she felt abandoned by Father. However, again, Mother agreed to this arrangement.

The only evidence before the trial court regarding any endangerment to the child was the testimony of the Mother. Again, there was no evidence by a guardian ad litem or therapist. The evidence presented by Mother in this case is weaker than the lineage of cases under Indiana case law dealing with this issue. While under the right circumstances, one parent’s testimony alone could be sufficient, here Mother’s testimony was only that Father was verbally abusive to Mother and Father’s oldest child in 2005, and that he threatened to destroy the relationship between Mother and L.P. While we find these facts problematic for Father, we find these facts an insufficient basis to deny parenting time to Father. There is no evidence to support Mother’s belief that it would not be in the best interests of L.P. to spend time with her Father.

The trial court has a host of tools at its disposal. It could order phased in professionally guided supervised visitation at Father’s expense. The trial court could require the testimony of a child psychiatrist or child psychologist to assist it in determining how best to structure reunification. Or perhaps the testimony of an expert would support the fact that even the introduction of parenting time would endanger the child’s well being. The trial court could even appoint a GAL or CASA to investigate and make recommendations to the trial court. These are but a few of the many courses of action the trial court could take, when, as the situation here, the facts do not support the child would be endangered by parenting time with his Father.

Conclusion

The decision of the trial court is reversed and this case is remanded.

DICKSON, C.J., and MASSA and RUSH, JJ., concur.

RUCKER, J., concurs in result.

      . Ind.Code 31-1-11.5-24 (Supp.1987) stated:
      (a) A parent not granted custody of the child is entitled to reasonable visitation rights unless the court finds, after a hearing, that visitation by the parent might endanger the child's physical health or significantly impair his emotional development.
      (b) The court may modify an order granting or denying visitation rights whenever modification would serve the best interests of the child, but the court shall not restrict a parent’s visitation rights unless it finds that the visitation might endanger the child’s physical health or significantly impair his emotional development.


author: RUCKER, Justice.

text:
    Brad W. PASSWATER, Appellant (Respondent below), v. STATE of Indiana, Appellee (Petitioner below).
    No. 48S05-1210-PC-583.
    Supreme Court of Indiana.
    June 28, 2013.

      Stephen T. Owens, Public Defender of Indiana, Richard Denning, Deputy Public Defender, Indianapolis, IN, Attorneys for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Andrew R. Falk, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   RUCKER, Justice.

After being charged with the murder of his mother, Brad W. Passwater was found guilty but mentally ill and sentenced to an executed term of years. He filed a petition for post-conviction relief alleging ineffective assistance of trial counsel for, among other things, counsel’s failure to object to the trial court’s instruction on the penal consequences of not responsible by reason of insanity and guilty but mentally ill. The post-conviction court denied relief. We affirm.

Facts and Procedural History

On October 26, 2002, Passwater struck his mother in the head twice with a frying pan and then stabbed her in the head with a knife. A few days later, the State charged Passwater with murder. On November 25, 2003, Passwater filed a notice of intent to present an insanity defense. The trial court appointed a psychiatrist, Dr. Susan Anderson, and a psychologist, Dr. Frank Krause, to make a determination concerning Passwater’s current competency and to evaluate his mental health. See Ind.Code § 35-36-3-1. Following a Competency Hearing the trial court concluded that Passwater was competent to stand trial.

The trial began in August 2004. During voir dire there was extended dialogue between the prospective jurors and the attorneys regarding the insanity defense. Several jurors expressed concerns that the defense was overused. One juror questioned whether a defendant who was mentally challenged would actually receive the treatment he needed before returning to society. Another juror opined that defendants who used the insanity defense “get a slap on the hand.” Voir Dire Tr. at 118.

During trial the healthcare professionals presented conflicting testimony regarding Passwater’s mental health. The defense offered Dr. George Parker who testified that Passwater suffered from paranoid schizophrenia, experienced a schizophrenic episode at the time of the offense, and lacked the ability to “appreciate the wrongfulness of his behavior.” Tr. at 472. The court’s first expert witness, Dr. Anderson, testified that she was unable to offer an opinion concerning Passwater’s sanity at the time of the offense in part because Passwater refused to cooperate with her evaluation. The court’s second expert, Dr. Krause, testified that he had an adequate opportunity to evaluate Pass-water and make a determination as to his state of mind. According to Dr. Krause, Passwater experienced some mental health issues but he was nonetheless able to appreciate the wrongfulness of his actions at the time of the offense. Various lay witnesses testified about Passwater’s calm and deliberate demeanor shortly before and after he struck his mother.

At the close of evidence, defense counsel requested a jury instruction on the penal consequences of guilty but mentally ill and not responsible by reason of insanity verdicts. He specifically requested a pattern jury instruction apparently used in the state of California. The trial court rejected the tendered instruction because it was inconsistent with Indiana law and instead gave an instruction proposed by the State and approved of by this Court in Georgopulos v. State, 735 N.E.2d 1138, 1143 n. 3 (Ind.2000). Defense counsel did not object to the State’s tendered instruction. After deliberation, the jury returned a verdict of guilty but mentally ill. The trial court sentenced Passwater to an executed term of sixty years in the Department of Correction. On review the Court of Appeals affirmed the conviction but remanded the cause for resentencing at which time the trial court entered a sentence of fifty-five years in accordance with Indiana Code section 35-50-2-3 (2002), that was in effect at the time of Passwater’s crime and sentencing. See Passwater v. State, No. 48A02-0501-CR-50, 841 N.E.2d 669 (Ind.Ct.App. Dec. 28, 2005).

Thereafter on April 17, 2007 Passwater filed a pro se petition for post-conviction relief that was later amended by counsel on August 27, 2010. As amended the petition essentially alleged that trial counsel rendered ineffective assistance for (1) failing to object to the trial court’s tendered instruction on the penal consequences of verdicts for not guilty by reason of insanity and guilty but mentally ill; (2) failing to provide information that had been requested before trial by one of the mental health professionals appointed to examine Pass-water; and (3) failing to rebut the State’s argument at sentencing that Passwater had been malingering.

The post-conviction court denied Pass-water’s request for relief and Passwater appealed raising the same claims he raised before the post-conviction court. In an unpublished memorandum decision the Court of Appeals rejected each of Passwa-ter’s claims and affirmed the post-conviction court’s judgment. See Passwater v. State, No. 48A05-1201-PC-17, 2012 WL 3028345 (Ind.Ct.App. July 25, 2012). Seeking transfer Passwater challenges only the disposition of his jury instruction claim. Specifically, Passwater acknowledges the Court of Appeals resolved this claim consistent with this Court’s Georgo-pulos opinion, but contends “that precedent is in need of reconsideration.” Pet. to Trans, at i. Having previously granted transfer thereby vacating the decision of the Court of Appeals, see Appellate Rule 58(A), we now address Passwater’s jury instruction claim. We summarily affirm that portion of the Court of Appeals’ decision concerning Passwater’s remaining claims. Additional facts are set forth below as necessary.

Standard of Review for Post-Conviction Proceedings

The petitioner in a post-conviction proceeding bears the burden of establishing grounds for relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5); Fisher v. State, 810 N.E.2d 674, 679 (Ind.2004). When appealing the denial of post-conviction relief, Petitioner stands in the position of one appealing from a negative judgment. Fisher, 810 N.E.2d at 679. To prevail from the denial of post-conviction relief, a petitioner must show that the evidence as a whole leads unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court. Weatherford v. State, 619 N.E.2d 915, 917 (Ind.1998). Further, the post-conviction court in this case made findings of fact and conclusions of law in accordance with Indiana Post>-Conviction Rule 1(6). Although we do not defer to the post-conviction court’s legal conclusions, “[a] post-conviction court’s findings and judgment will be reversed only upon a showing of clear error — that which leaves us with a definite and firm conviction that a mistake has been made.” Ben-Yisrayl v. State, 729 N.E.2d 102, 106 (Ind.2000) (quotation omitted).

Standard of Review for Ineffective Assistance of Counsel

To establish a post-conviction claim alleging violation of the Sixth Amendment right to effective assistance of counsel, a defendant must establish the two components set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Williams v. Taylor, 529 U.S. 362, 390, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). First, a defendant must show that counsel’s performance was deficient. Strickland, 466 U.S. at 687, 104 S.Ct. 2052. This requires a showing that counsel’s representation fell below an objective standard of reasonableness and that counsel made errors so serious that counsel was not functioning as “counsel” guaranteed to the defendant by the Sixth Amendment. Id. Second, a defendant must show that the deficient performance prejudiced the defense. Id. This requires a showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, meaning a trial whose result is reliable. Id. To establish prejudice, a defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Id. at 694, 104 S.Ct. 2052. A reasonable probability is one that is sufficient to undermine confidence in the outcome. Id. Further, when a petitioner contends that counsel was ineffective for failing to mount an objection at trial, in order to show prejudice petitioner must prove that the trial court would have sustained the objection. Lowery v. State, 640 N.E.2d 1031, 1042 (Ind.1994). Absent such a showing, the petitioner cannot satisfy the second prong of Strickland and thus may not prevail on his ineffective assistance claim. Id.

Discussion

As a general proposition a jury may not be instructed on specific penal ramifications of its verdicts. See Schweitzer v. State, 552 N.E.2d 454, 457 (Ind.1990). However, acknowledging the “potential for confusion in cases where the jury is faced with the option of finding a defendant not responsible by reason of insanity or guilty but mentally ill” this Court determined that when such options are before a jury “and the defendant requests a jury instruction on the penal consequences of these verdicts, the trial court is required to give an appropriate instruction or instructions as the case may be.” Georgopulos, 735 N.E.2d at 1143 (emphasis added) (footnote omitted). The Court then declared “[although not binding, the trial court may consider the following as appropriate instructions:” Id. at n. 3,

Whenever a defendant is found guilty but mentally ill at the time of the crime, the court shall sentence the defendant in the same manner as a defendant found guilty of the offense. At the Department of Correction, the defendant found guilty but mentally ill shall be further evaluated and treated as is psychiatrically indicated for his illness.

Id. (citing I.C. § 35-36-2-5).

Whenever a defendant is found not responsible by reason of insanity at the time of the crime, the prosecuting attorney shall file a written petition for mental health commitment with the court. The court shall hold a mental health commitment hearing at the earliest opportunity after the finding of not responsible by reason of insanity at the time of the crime, and the defendant shall be detained in custody until the completion of the hearing. If, upon the completion of the hearing, the court finds that the defendant is mentally ill and either dangerous or gravely disabled, then the court may order the defendant to be committed to an appropriate facility, or enter an outpatient treatment program of not more than ninety (90) days.

Id. (citing I.C. §§ 35-36-2-4; 12-26-6-8).

In this case, noting the apparent confusion displayed by some jurors during voir dire, defense counsel requested an instruction on the penal consequences of guilty but mentally ill and not responsible by reason of insanity. As a consequence the trial court gave the precise instruction this Court approved as “appropriate” in Geor-gopulos. On appeal from the denial of his petition for post-conviction relief, Passwa-ter insists that trial counsel rendered ineffective assistance for failing to object to the instruction. More specifically Passwa-ter takes issue with that portion of the instruction suggesting that he could be “committed to an out-patient treatment facility for a period of not more than ninety (90) days.” Br. of Appellant at 1. Acknowledging the instruction represents a correct statement of the law, Passwater contends the instruction was nonetheless misleading because he “would have been hospitalized in a secure facility for years. [Because] [t]here was no chance that [he] would have been treated in an outpatient treatment program after a commitment hearing.” Br. of Appellant at 13.

We make two observations. First, as the Court explained in Georgopu-los, when a defendant so requests the trial court is required to provide an appropriate instruction or instructions on the penal consequences of verdicts of guilty but mentally ill and not guilty by reason of insanity, Georgopulos, 735 N.E.2d at 1143, not solely the consequence that the defendant believes is the most likely outcome of a commitment hearing. Here, there was testimony presented at the post-conviction hearing that Passwater would not have been treated in an outpatient facility. However no such testimony was presented at trial. Hence there was no particular reason to believe that the instruction given by the trial court was misleading. Second, and more importantly, in order to prevail on a claim of ineffective assistance due to the failure to object, the defendant must show a reasonable probability that the objection would have been sustained if made. Wrinkles v. State, 749 N.E.2d 1179, 1192 (Ind.2001). On this point Passwater has not carried his burden. It bears repeating (i)the trial court was required to give an appropriate instruction at defense counsel’s request, (ii) the instruction at issue was and is a correct statement of the law, and (iii) the instruction is one which this Court declared “appropriate” where the verdicts faced by the jury are guilty but mentally ill and not responsible by reason of insanity. Passwater does not explain how trial counsel can be said to have rendered ineffective assistance for failing to object to an instruction this Court specifically endorsed. See, e.g., Warren v. State, 725 N.E.2d 828, 834 (Ind.2000) (rejecting claim that trial court abused its discretion by giving a jury instruction “which this Court authorized and recommended”). Further, the post-conviction court found, and Passwater does not contest, “the trial court had intended to give the Georgopulos instruction before the State proposed it, which indicates that the trial court would not have sustained defense counsel’s objection had he made it.” Appellant’s App. at 61. Failing to prove the trial court would have sustained his objection, Passwater has not satisfied the prejudice prong of Strickland and therefore cannot prevail on his ineffective assistance claim.

Notwithstanding, we accept Passwater’s invitation to reconsider the Georgopulos instruction. Several statutes control the disposition of a defendant found guilty but mentally ill or not responsible by reason of insanity. With respect to the former, the relevant statute provides in pertinent part:

whenever a defendant is found guilty but mentally ill at the time of the crime or enters a plea to that effect that is accepted by the court, the court shall sentence the defendant in the same manner as a defendant found guilty of the offense.... If a defendant who is found guilty but mentally ill at the time of the crime is committed to the department of correction, the defendant shall be further evaluated and then treated in such a manner as is psychiatrically indicated for the defendant’s mental illness.

I.C. § 35-36-2-5(a), (c). The first portion of the Georgopulos instruction essentially tracks the language of the statute. As for the latter, a number of statutory provisions come into play. In summary the statutes provide: (1) there will be a mental health commitment hearing after the finding of not responsible by reason of insanity and the defendant will remain in custody throughout the duration of the hearing, see I.C. §§ 12-26-6-4; 12-26-7-4; 35-36-2-4; (2) if the defendant is found to be mentally ill at the conclusion of the hearing the court may either require the defendant to enter an outpatient treatment program or order the defendant to a regular commitment at an appropriate mental health facility — depending on the severity of defendant’s mental illness, see I.C. §§ 12-26-6-1; 12-26-6-8; 12-26-14-1; 12-26-14-7; (3) a defendant who is ordered to enter an outpatient treatment program on a temporary 90-day basis must be assessed by the attending physician or superintendent of the treatment program during the 90 days, see I.C. § 12-26-6-11; (4) if a person originally ordered to serve a temporary outpatient commitment period continues to suffer from mental illness, the court must conduct another commitment hearing before the 90 days expires to determine whether a second temporary commitment period in outpatient therapy or regular commitment to a mental health facility is appropriate, see I.C. §§ 12-26-6-8; 12-26-6-10; 12-26-7-4; and (5) an individual ordered to a regular commitment will not be released until the attending physician or superintendent determines that they are no longer mentally ill and either dangerous or gravely disabled or so ordered by the court. See I.C. §§ 12-26-6-9; 12-26-7-5; 12-26-12-7.

Obviously not all of the foregoing provisions are appropriate for a jury instruction. Consequently the second part of the Georgopulos instruction endeavored to synthesize those portions of the statute relevant for a jury’s consideration in order to avoid confusion in cases where the jury is faced with the option of finding a defendant not responsible by reason of insanity or guilty but mentally ill. However, that does not mean to say that the instruction is flawless. Although not used by the trial court in this case, at least one attempt to suggest an improved instruction is found in Indiana Pattern Jury Instruction 11.20. Titled “Consequences of Not Guilty By Reason of Insanity or Guilty But Mentally Ill Verdicts” the instruction provides:

If the Defendant is found guilty but mentally ill at the time of the crime, the court will sentence the Defendant in the same manner as a Defendant found guilty of the offense. The Defendant will then be further evaluated and treated as is psychiatrically indicated for his illness.
If the Defendant is found not responsible by reason of insanity at the time of the crime, the prosecuting attorney will file a petition for mental health commitment with the court. The court will hold a mental health commitment hearing at the earliest opportunity. The Defendant will be detained in custody until the completion of the hearing. If the court finds that the Defendant is mentally ill and either dangerous or gravely disabled, then the court may order the Defendant to be either placed in an outpatient treatment program of not more than ninety (90) days, or committed to an appropriate mental health facility until a court determines commitment is no longer needed.

Indiana Pattern Jury Instructions — Criminal 11.20 (2013). We are of the view that the Pattern Instruction represents an improvement over the instruction this Court found appropriate in Georgopulos and thus endorse and approve its use.

Conclusion

We affirm the judgment of the post-conviction court.

DICKSON, C.J., and DAVID, MASSA and RUSH, JJ., concur.

      . The Indiana Pattern Jury Instructions are prepared under the auspices of the Indiana Judges Association and the Indiana Judicial Conference Criminal and Civil Instruction Committees. Although not formally approved for use, they are tacitly recognized by Indiana Trial Rule 51(E).