author: Barnes, Judge.

text:
    In re: The MATTER OF the ADOPTION OF: E.M.L., (Minor)
    S.L., Appellant-Petitioner, v. K.G., Appellee-Respondent.
    Court of Appeals Case No. 29A05-1710-AD-2250
    Court of Appeals of Indiana.
    Filed May 25, 2018
    Attorney for Appellant: Karen Celestino-Horseman, Indianapolis, Indiana
    Attorney for Appellee: Alan D. Wilson, Kokomo, Indiana
   Barnes, Judge.

Case Summary

[1] S.L. ("Father") appeals the granting of the adoption petition filed by K.G. ("Stepfather") for Father's biological child, E.M.L. ("Child"). We reverse.

Issue

[2] Father essentially raises two issues. We need only address the dispositive issue of whether the trial court properly concluded that Father's consent to Child's adoption by Stepfather was unnecessary.

Facts

[3] Child was born in 2009 to T.G. ("Mother"). Father, Mother, and Child lived together for about a year before Mother and Child moved out. Father established paternity in December 2011 and was ordered to pay child support. Mother and Father were granted joint physical and legal custody of Child. From the time of Child's birth, he spent approximately every other weekend with his paternal grandparents in Brown County. Father often visited with Child when he was at the grandparents' house. Mother and Stepfather married in 2012.

[4] Between December 2011 and December 2012, Father paid about $620 of the $3,380 he would have owed in child support . There is scant evidence in the record as to Father's employment situation during that time frame; evidently, Father was employed as a machinist when his child support obligation was calculated but lost that job sometime thereafter, according to Mother.

[5] In March 2012, Father was arrested for dealing in methamphetamine. On July 1, 2013, Mother filed a motion to modify custody. On October 9, 2013, the trial court granted Mother sole legal and primary physical custody of Child. This order contained no requirement that Child's visitation with Father be supervised or otherwise placed any limitations on his visitation or contact with Child.

[6] Father was convicted of dealing in methamphetamine in March 2013 and was incarcerated through July 2014. Father sought and was granted a complete abatement of his child support obligation to $0 while he was incarcerated. Father frequently telephoned and spoke with Child when Child was visiting Father's parents.

[7] After being released from incarceration, Father resumed frequent visitation with Child through Child's weekend visits with Father's parents. However, on June 9, 2015, Father filed a pro se "request" regarding parenting time and custody, alleging that Mother improperly refused to allow Child to continue visiting Father in Father's own home and refused to allow Father any unsupervised visitation with Child. App. Vol. II p. 113. A hearing on the matter originally was scheduled for August 6, 2015, but was continued to November, and then December, and finally to February 10, 2016.

[8] Before a hearing was held, Father was arrested in November 2015 on a domestic battery charge for slapping a girlfriend in front of two children. He remained in jail until he pled guilty in February 2016, at which time he was released on probation. He moved in with his parents thereafter. Meanwhile, Father's June 2015 petition regarding parenting time was dismissed after he failed to appear at the February 2016 hearing on the matter, apparently held while he was still incarcerated. However, the trial court ordered an abatement of Father's support obligation while he was incarcerated.

[9] Mother and paternal grandmother ("Grandmother") frequently communicated by text message regarding Child and Father, Child's visitation with paternal grandparents, and Child's sports activities in Noblesville that Mother invited paternal grandparents but not Father to attend. After Mother learned of Father's domestic violence arrest in November 2015, she texted Grandmother, "I don't trust [Father's] judgement [sic] with his girlfriends that he affiliates himself with, which is why I never thought it was a good idea for [Child] to be around [Father] and his girlfriend." Ex. 8, p. 42. On November 27, 2015, Mother texted Grandmother,

I wanted to let you know that [Child] knows that [Father] is in jail. Unfortunately with what I've learned about [Father's ] behavior in the last year, that until [Father] and I talk to each other and get things resolved in court, that it's in [Child's] best interest for [Father] to not talk with [Child] over the phone. I know this is tough for you, but I'm trusting you to be sure that there's no communication going on between [Child] and [Father].

Id. at 44. Grandmother responded to this text,

I will respect your wishes, but I don't know what you mean about his behavior in the last year? The issues he had was between him and that girl. Nothing to do with [Child] at all. He has not been on any drugs and was doing good, until the incidents with her. I think it would hurt [Child] more by not being able to talk to his Dad.... Please answer the phone when [Father] triesto call you ....

Id.

[10] On November 29, 2015, Grandmother texted Mother,

I told [Child] last night when [Father] called, that he couldn't talk to him, he buried his head in the couch with tears and asked why? I broke down and let him talk to him for a minute. I know I told you I wouldn't but he broke my heart when I seen him. I am sorry. I told [Child] when he asked why, he would need to talk to you. Please don't be to [sic] upset with me....

Id. at 45. Mother responded, "I'm not upset with you, I'm just really disappointed with [Father]." Id.

[11] On Christmas Day 2015, Grandmother texted Mother, "[Paternal grandfather] will be picking up [Child] today. Can you please find it in your heart to let [Child] talk to his Daddy today?" Id. at 48. Mother responded,

[Child] can not [sic] talk to [Father]. I'm raising [Child] to be responsible for his own actions and respectful of women and [Father] is supposed to be a positive role model with this for [Child] and doesn't demonstrate that for him, therefore [Father] doesn't need to be talking with [Child] until [Father] gets the help that he needs. We know that this is not a one time incident and that this has been a reoccurring pattern for a while with [Father].

Id.

[12] On Child's birthday, January 17, 2016, Grandmother texted Mother asking if Father could call and wish Child a happy birthday. Mother responded that he could do so. Grandmother then texted, "I just talked to him before you texted back. He said he tried calling several times today. I hope he tries again ...." Id. at 50. Fifteen minutes later Mother texted, "We just got off the phone with him." Id. At trial, Mother initially testified that Father did not call Child on his birthday in 2016, but admitted after seeing these text messages that Father must have done so.

[13] On February 12, 2016, Grandmother texted Mother that Father had just been released from jail and was living with paternal grandparents. Mother replied,

I know that [Father] has been released and in order for me to ensure [Child's] safety and stability, [Child] will not be able to visit with you guys down there for a while. You and [paternal grandfather] are more than welcome to visit [Child] up here [in Noblesville]. I'm sure you're aware of [Father] requesting an appearance in court with us over parenting time which we appeared for so he doesn't have any rights to parenting time for [Child]. Please understand that this isn't a grandparent issue, but a [Father] issue.

Id. at 52. Despite what Mother stated in this text, there never was a court order entered restricting Father's parenting time.

[14] On March 4, 2016, Grandmother texted Mother,

I wish you would reconsider and let him [Child] come home with us. His second family misses him terribly. I know that you and [Father] are having trouble communicating, and he hangs up, [Father] and I have talked about this extensively. His feelings are you can not [sic] talk to him without talking down to him in a demeaning manner.... Not sure if you know this, [Father] will be having surgery on the 14th for a double hernia. He has been suffering through this for many months. He will be glad to get it taken care of so he can get back to work.

Id. at 55. Mother responded, "I need you to understand that at this point I'm not okay with [Father] talking to or seeing [Child], however I'm fine with you talking to him and visiting him in Noblesville." Id.

[15] On March 14, 2016, Grandmother texted Mother, "Would you let [Child] call [Father] tonight? He is in recovery after a pretty painful surgery." Id. at 57. Mother responded,

[Child] has never asked me if he can call [Father], so there's absolutely no reason for [Child] to call him. Please stop asking me if [Child] can talk to [Father], I have been very direct with you about why [Child] is not to have any contact with [Father] and I'm going to tell you for the last time. [Father] is NOT a good role model for [Child] and that [Father] has a lot of areas in his life that he needs to improve on before being coming in contact with children. If you want to talk to [Child], feel free to call him while [Father] is not around.

Id. at 57-58.

[16] On March 29, 2016, Grandmother texted Mother that Father had moved into his own place and asked if Child could visit and stating that Father "won't see or talk to him per your request." Id. at 58. Still, Child did not resume visitation with paternal grandparents, although they continued attending sports activities in Noblesville; Father never attended these events. On June 28, 2016, Mother explicitly informed Grandmother, "I don't think it's a good idea for [Child] to visit you guys down there ...." Id. at 63.

[17] On August 18, 2016, Stepfather filed a petition to adopt Child, which Father contested. During the year prior to the filing of the adoption petition, Father paid $3,189.74 in child support toward his total obligation of $3,380. All but $222.00 of that amount was from tax intercepts. In the year prior to that, from August 2014 to August 2015, Father regularly paid weekly child support. As mentioned in one of Grandmother's texts above, he had a severe hernia in the summer of 2015 but was unable to have it operated on until March 2016 due to lack of insurance and he had an extended recovery period thereafter; Mother does not dispute that Father had a hernia and surgery to repair it. Father claimed his hernia and post-surgery recovery impacted his ability to work. In June 2016, Father began working steadily as a cook and began having child support regularly withdrawn from his paycheck beginning in August 2016.

[18] The trial court held a hearing on July 26, 2017 to address whether Father's consent to the adoption was required, at which Father appeared and participated. On August 18, 2017, the trial court entered an order with findings and conclusions stating that Father's consent to the adoption was not required. The court found that Father had failed to support Child during three separate periods: from December 2011 to December 2012, during his incarceration from January 2013 to August 2014, and from August 2015 to August 2016. The court also found that Father had failed to significantly communicate with Child in the year preceding the filing of the adoption petition.

[19] On September 6, 2017, the trial court held a final hearing to address whether Child's adoption by Stepfather would be in Child's best interests. Father and his attorney appeared at the hearing. At the outset, counsel for Stepfather moved to exclude Father from the courtroom. Father's attorney objected. The trial court overruled the objection, based on its order of August 18, 2017, and ordered Father and his attorney to leave the courtroom. After hearing testimony from Stepfather and Mother, the trial court granted the adoption petition. Father now appeals.

Analysis

[20] Father contends there was insufficient evidence to support the trial court's conclusion that his consent to Child's adoption by Stepfather was not required. The granting of an adoption petition over a natural parent's objection results in termination of parental rights and implicates the traditional right of parents under the Fourteenth Amendment to the United States Constitution to establish a home and raise their children. In re Adoption of O.R. , 16 N.E.3d 965, 972 (Ind. 2014). "A parent's interest in the care, custody, and control of his or her children is 'perhaps the oldest of the fundamental liberty interests.' " Id. (quoting Troxel v. Granville , 530 U.S. 57, 65, 120 S.Ct. 2054, 2060, 147 L.Ed.2d 49 (2000) ).

[21] We will reverse a trial court's decision in an adoption proceeding only if the evidence leads to one conclusion and the trial court reached the opposite conclusion. E.W. v. J.W. , 20 N.E.3d 889, 894 (Ind. Ct. App. 2014), trans. denied. "We do not reweigh evidence, and we consider the evidence most favorable to the decision together with reasonable inferences drawn from that evidence." Id. We also recognize that trial courts are in the best position to judge facts, determine witness credibility, ascertain family dynamics, and evaluate the parents and their relationship with their child or children. Id.

[22] The trial court here entered findings of fact and conclusions thereon sua sponte. In such a case, we apply a two-tiered standard of review, determining: (1) whether the evidence supports the findings of fact and (2) whether the findings support the judgment. Id. We will set aside the trial court's findings or judgment only if they are clearly erroneous. Id. "A finding of fact is clearly erroneous if the record lacks evidence or reasonable inferences from the evidence to support it." Id. When findings are entered sua sponte, they control only as to the issues upon which the court has found, but they do not otherwise affect our general judgment standard of review, and we may look both to other findings and beyond the findings to the evidence of record to determine if the result is against the facts and circumstances before the court. C.B. v. B.W. , 985 N.E.2d 340, 344 (Ind. Ct. App. 2013), trans. denied.

[23] Indiana Code Section 31-19-9-8(a)(2) provides that a biological parent's consent to adoption is not required if, among other possibilities:

A parent of a child in the custody of another person if for a period of at least one (1) year the parent:
(A) fails without justifiable cause to communicate significantly with the child when able to do so; or (B) knowingly fails to provide for the care and support of the child when able to do so as required by law or judicial decree.

Because the statute is written in the disjunctive, the existence of any of the listed circumstances would provide sufficient reason to dispense with consent. In re O.R. , 16 N.E.3d at 973. A party seeking to adopt bears the burden of proving by clear and convincing evidence that a noncustodial parent's consent is not required. In re Adoption of M.S. , 10 N.E.3d 1272, 1279 (Ind. Ct. App. 2014).

A. Support

[24] We first address the trial court's finding that there were three separate year-long-plus periods, totaling forty-two months, in which Father failed to provide for Child's care and support. Stepfather had the burden of proving that Father had the ability to make child support payments but that Father knowingly failed to do so. See In re Adoption of K.F. , 935 N.E.2d 282, 288 (Ind. Ct. App. 2010), trans. denied .

"[The ability to pay] cannot be adequately shown by proof of income standing alone. To determine that ability, it is necessary to consider the totality of the circumstances. In addition to income, it is necessary to consider whether that income is steady or sporadic and what the non-custodial parent's necessary and reasonable expenses were during the period in question."

Id. (quoting In re Adoption of Augustyniak , 508 N.E.2d 1307, 1308 (Ind. Ct. App. 1987), trans. denied ).

[25] The first period of nonsupport found by the trial court was from December 2011 to December 2012. During that time frame, Father paid $620 in support toward a total annual obligation of $3,380. Even if this constituted a gross underpayment of support, there is no evidence whatsoever in the record of the totality of the circumstances regarding that year of underpayment. All that is known is that the original child support calculation was based on Father's job as a machinist but that he lost that job sometime thereafter for unknown reasons. Stepfather's attorney did not question Father about this time period, though he did about the other two periods in question. It was not Father's burden to present evidence explaining why he did not pay the full amount of support; it was Stepfather's burden to prove that Father was able to pay it. Thus, although the trial court found that Father was able to pay the full amount of support for that year, there is a lack of evidence to support that finding, and it is clearly erroneous. Cf. In re M.S. , 10 N.E.3d at 1272 (holding there was sufficient evidence biological mother had ability to pay support, despite claims of high medical expenses and loss of business, where there was evidence mother still maintained gainful employment, lived in and paid to redecorate house purchased by grandmother, and had multiple pets).

[26] The second period of nonpayment was during Father's incarceration from March 2013 through July 2014. Although Father's child support obligation was reduced to $0 during his incarceration, the trial court concluded nonetheless that Father had a duty to continue paying some support, based on approximate monthly income of $30 from a prison job. We conclude that the trial court's decision to essentially penalize Father for not paying any child support while incarcerated, despite having had his support obligation reduced to $0, is contrary to the policies underlying our supreme court's decision in Clark v. Clark , 902 N.E.2d 813 (Ind. 2009). In that case, the court held that incarceration may be considered a substantial change in circumstances justifying modification of a child support order. Clark , 902 N.E.2d at 817. The court stated:

Proscribing the consideration of incarceration as a substantial change in circumstances justifying the modification of a child support order is not in the best interest of children. When released, most obligated parents face the twin barriers of large arrearages and difficulty finding employment. Such a situation makes it more likely that the newly-released obligated parent will face jail time as a result of non-payment of child support or participate in the underground economy-once again straining family relationships, if not jeopardizing public safety.

Id. Here, the trial court's decision to effectively impose a retroactive child support obligation upon Father while incarcerated put the ultimate strain upon a family relationship, as it was used as partial justification to terminate his parental rights. Its finding that Father's nonpayment of support while incarcerated obviated the need for his consent to Child's adoption is clearly erroneous, as there is insufficient evidence he had the ability to pay during that time.

[27] Finally, the trial court found Father knowingly failed to pay support when able to do so between August 2015 and August 2016. During that time, Father paid $3,189.74 in child support toward his total obligation of $3,380.00, and all but $222.00 of that amount was from tax intercepts. Although the total amount of these payments nearly equaled Father's total obligation for the year, Mother and the trial court discount the amount that resulted from tax intercepts because they were not, strictly speaking, "voluntary" payments. Father notes that he was again incarcerated for a part of that time period, and argues that he had a hernia and resulting surgery and recovery that prevented him from working for much of the rest of the time period.

[28] Those arguments aside, the fact that much of the support paid in that time period came from tax intercepts does not mean that it should have been disregarded by the trial court. Such intercepts would constitute support for purposes of any criminal action for nonsupport of a dependent. See Long v. State , 716 N.E.2d 51, 54 (Ind. Ct. App. 1999). Additionally, if the tax intercepts had caused more to be paid in child support than Father owed for the one-year period, he may have been entitled to reimbursement of that amount as an involuntary overpayment of child support. See Matson v. Matson , 569 N.E.2d 732, 734 (Ind. Ct. App. 1991). Regardless of the form in which support was paid from August 2015 to August 2016, it was paid and the fact that most of it came from tax intercepts should not have been held against Father when considering whether his consent to Child's adoption was required. The trial court's finding that Father knowingly failed to provide for Child's support during this time period is clearly erroneous.

B. Communication

[29] We now turn to whether there is sufficient evidence that Father failed to communicate significantly with Child, when able to do so and without justifiable cause, for the year preceding the filing of the adoption petition. It is well-settled that, " 'Efforts of a custodial parent to hamper or thwart communication between a parent and child are relevant in determining the ability to communicate.' " E.W. , 20 N.E.3d at 896-97 (quoting In re Adoption of A.K.S. , 713 N.E.2d 896, 899 (Ind. Ct. App. 1999), trans. denied ). Also, "It has been held that visitation by paternal family members may constitute indirect communication by a non-custodial father."

In re Adoption of S.W. , 979 N.E.2d 633, 641 (Ind. Ct. App. 2012).

[30] The evidence is clear and undisputed that Mother made efforts to curtail, and then completely terminate, Father's ability to communicate with Child in the year preceding the filing of the adoption petition. At trial, Mother did not deny what is reflected in the text messages between her and Grandmother: that she wanted Father to have no communication with Child beginning with his November 2015 incarceration, and no contact at all with Child when he was released from incarceration in February 2016. It required begging on Grandmother's part for Mother to allow Father to make a brief phone call to Child on his birthday in January 2016. After Father's release from incarceration, Mother terminated the previous arrangement-in place since Child's infancy-whereby Child frequently spent weekends with Grandmother, which facilitated visitation between Father and Child even when Mother refused to allow Child to spend time alone with Father at his own residence. On occasion, Father did phone Mother to attempt to arrange some communication or visitation with Child. Unfortunately, these phone calls would disintegrate into arguments when Mother insisted that Father had to, for example, undergo counseling before he could see or talk to Child.

[31] Mother and the trial court discounted her clear efforts to hamper communication between Child and Father by essentially claiming that he should have expended more effort to force such communication, through legal channels or by simply, for example, showing up at Child's sporting events in Noblesville unannounced and without Mother's invitation and in contravention of Mother's clearly-expressed desire that Father have no contact with Child. We conclude, however, that Father's failure to fight Mother more aggressively with respect to communicating with Child does not mean he lacked justifiable cause for failing to communicate or that he was practically able to communicate.

[32] Father's parenting time rights were never curtailed by any court order. We do not wish to be overly critical of Mother's natural desire to protect Child, and there is no question that Father has been far from an ideal parent. However, there are established legal procedures to follow if a custodial parent believes restriction or complete cessation of a noncustodial parent's parenting time is warranted. See I.C. § 31-14-14-1(a) (applying to paternity cases and stating, "A noncustodial parent is entitled to reasonable parenting time rights unless the court finds, after a hearing, that parenting time might: (1) endanger the child's physical health and well-being; or (2) significantly impair the child's emotional development"). Those procedures were not followed here. A custodial parent should not be able to unilaterally limit, place conditions on, or completely terminate a noncustodial parent's parenting time, and then successfully assert in an adoption proceeding that the noncustodial parent was able to communicate with the child but failed to do so without justifiable cause. In sum, we conclude the trial court clearly erred in finding that Father failed to significantly communicate with Child, when able to do so and without justifiable cause, in the year preceding the filing of the adoption petition.

Conclusion

[33] The trial court's findings that Father failed to support Child for at least a year when able to do so, and that he failed without justifiable cause to communicate significantly with Child for at least a year when able to do so, are clearly erroneous. Thus, it erred in ultimately concluding that Father's consent to Child's adoption by Stepfather was not required. We reverse the granting of Stepfather's adoption petition.

[34] Reversed.

Vaidik, C.J., and Pyle, J., concur.

      The State, in a Title IV-D action, had first sought a total abatement of Father's support obligation while he was incarcerated. This request was dismissed when Father failed to appear telephonically at a hearing while incarcerated. Father subsequently filed his own motion seeking a child support abatement, which was granted.

      Mother does not dispute the accuracy or veracity of these text messages as introduced into evidence. Also, Father never had a cell phone with which he could have texted Mother.

      The page numbers with respect to the exhibits refers to the page of the entire exhibit volume, not the individual exhibit.

      Because the statutory period of required noncommunication is at least one year, we need not examine the three-to-four-month time period between August and November 2015.

      A noncustodial parent's conviction for child molesting or child exploitation creates a rebuttable presumption that parenting time may be curtailed or, if granted, supervised. I.C. § 31-14-14-1(c) & (d). Father has not been convicted of either offense.

      Given our resolution of this issue, we need not address Father's alternative argument that he was denied due process when the trial court precluded him and his attorney from attending or participating in the hearing that addressed whether adoption was in Child's best interests.


source: Caselaw Access Project

author: Robb, Judge.

license: Public Domain

text:
    D.H., a Minor, BY her Parent, A.M.J., and A.M.J., Individually, Appellants-Plaintiffs, v. Mary WHIPPLE, Appellee-Defendant, and Robert Whipple (Deceased), Defendant Below.
    Court of Appeals Case No. 48A05-1706-CT-1345
    Court of Appeals of Indiana.
    FILED May 29, 2018 Rehearing denied August 6, 2018
    Attorneys for Appellants: Robert H. Ebbs, Theresa L.D. Ebbs, Katherine M. Marshall, Glaser & Ebbs, Indianapolis, Indiana
    Attorneys for Appellee: Michael R. Bain, Lauren M. Hardesty, Hume Smith Geddes Green & Simmons, LLP, Indianapolis, Indiana
    Attorney for Amicus Curiae Indiana Trial Lawyers Association: Scott A. Faultless, Craig Kelley & Faultless LLC, Indianapolis, Indiana
    Attorneys for Amicus Curiae Defense Trial Counsel of Indiana: Lucy R. Dollens, Jacob V. Bradley, Quarles & Brady LLP, Indianapolis, Indiana
   Robb, Judge.

Case Summary and Issue

[1] D.H. ("Child"), through her mother and guardian, A.M.J. ("Mother"), and Mother individually (collectively, the "Appellants"), bring this interlocutory appeal from the trial court's grant of summary judgment on the issue of negligence in favor of Mary Whipple, Mother's mother and Child's maternal grandmother. Appellants present only one question for our review, whether the trial court properly granted summary judgment. Concluding genuine issues of material fact remain, we reverse and remand.

Facts and Procedural History

[2] Robert Whipple, Child's step-grandfather and Mary's husband until his death in 2017, had a history of child molestation.

Robert molested his seven-year-old daughter on multiple occasions in the 1960s and his six-year-old niece on multiple occasions in 1980. As a result of his 1980 conduct, Robert was charged with child molesting, a Class B felony. He confessed to the underlying conduct and accepted a plea agreement involving counseling in lieu of incarceration.

[3] Mary met Robert sometime in 1990 and the two were married on December 6, 1991. For medical reasons, Mary and Robert were unable to have sex during their twenty-six-year marriage. By the time of Mary and Robert's marriage, Mother was an adult and living on her own. Sometime prior to 2009, Mother and Child moved from Indianapolis to Anderson to help with Mary's and Robert's many health issues. During this time, and often at Mary's invitation, Child would visit and stay the night at the Whipples' home.

[4] These visits increased in December 2009, after Child turned thirteen, because she was no longer eligible to continue attending her daycare facility. Through phone calls with Mary, Mother arranged for Child to stay at the Whipples' home while Mother was at work. Mary, who was working in Indianapolis at the time, told Mother that she would be home shortly after Child was dropped off at the home. Mother would drop Child off around 4:30 p.m. and Mary would arrive home around 5:30 or 6:00 p.m. Mary told Mother that it was "all right" for Child to be with Robert until she returned home from work in Indianapolis. Appendix of Appellants, Volume III at 50. From December 2009 through January 2010, Robert molested Child on some twelve occasions. Child did not initially report the molestations, however, because Robert threatened to kill Mother. Almost two years later, Child met with a detective and reported the molestations, resulting in Robert's arrest. Following a jury trial in May 2013, Robert was found guilty of two counts of child molesting as Class A felonies, and one count of child molesting as a Class C felony. Robert was sentenced to thirty-five years in the Indiana Department of Correction.

[5] In June 2013, Appellants commenced this action by filing a complaint for damages against Robert and Mary. Count I alleged that Robert committed assault, battery, invasion of privacy, intentional infliction of emotional distress, and negligent infliction of emotional distress. Count II alleged negligence on behalf of Mary. Specifically, Appellants allege in Count II:

12. On said occasions when Plaintiff Child was in the custody, care and control of Defendant Mary Whipple, the Defendant had a special responsibility to supervise Plaintiff Child, to keep her from harm and out of danger, to make careful preparations to enable Defendant to be vigilant in ascertaining risks that may occur and to exercise reasonable care for Child's safety and protection.
13. Defendant Mary Whipple was, without limitation:
a) Negligent in her supervision of Child as she knew, or should have known, that Defendant Robert Whipple was sexually molesting and assaulting Child, and Defendant Mary Whipple failed to warn Child and/or [Mother] of the dangers, or otherwise protect Child from said wrongful acts of her husband, Defendant Robert Whipple, and the harm to result therefrom; and,
b) Negligent and careless in failing to provide a safe environment and/or premises for Plaintiff Child, a child of thirteen (13) years of age, when Defendant Mary Whipple accepted the responsibility to care for Child and was entrusted with her safety and well-being.

App. of Appellants, Vol. II at 18-19.

[6] Mary denied the allegations and eventually filed a motion for summary judgment. As evidence in opposition to the motion, Appellants designated the affidavit of Scott Sanderson, a detective with the Anderson Police Department, who had interviewed both Robert and Mary in the course of investigating the molestations. Detective Sanderson's affidavit included the following:

10. I interviewed Robert E. Whipple on February 24, 2012, at the Anderson Police Department, in the course of my investigation of the State of Indiana v. Robert E. Whipple, Cause Number 48C06-1204-FA-000655 case; and,
a. During that interview, Robert E. Whipple admitted to molesting two children, other than [Child], in the past; one was his biological daughter, and the other was his niece by marriage.
b. During that interview, Robert E. Whipple informed me that he had told his wife Mary Whipple that he had molested a girl in the past.
c. It was and is my impression that, prior to December 20, 2009, Robert E. Whipple informed Mary Whipple that he molested a child.
d. A true and accurate copy of the Anderson Police Department Advice of Rights and my hand written notes which were contained on the back side of the Advice of Rights are attached hereto as Exhibit B.
e. A true and accurate copy of my type written notes of my February 24, 2012 interview with Robert E. Whipple are attached hereto as Exhibit C.
11. I spoke in person with Mary Whipple on February 24, 2012, while she was at the Anderson Police Department with Robert E. Whipple; and,
a. During that conversation, Mary Whipple stated that a long time ago Robert E. Whipple told her that he had what she referred to as a "small or minor indiscretion" a long time ago.
b. It was and is my impression that the "small or minor indiscretion" that Mary Whipple was referring was child molest.
c. It was and is also my impression that Mary Whipple had knowledge prior to December 20, 2009 that Robert E. Whipple molested at least one (l) child.
d. During that conversation, I spoke with Mary Whipple about the allegations [Child] had made against Robert E. Whipple; and, although she denied the allegations, she advised basically that it was all her fault because she worked all of the time, and Robert E. Whipple was home alone with [Child].
e. A true and accurate copy of my hand written notes which were contained on the back side of the Advice of Rights are attached hereto as Exhibit B.
f. A true and accurate copy of my type written notes of my February 24, 2012 conversation with Mary Whipple are attached hereto as Exhibit C.

App. of Appellants, Vol. III at 85-86.

[7] Appellants' designated evidence also included the following testimony from Mary's deposition:

[Question]: If Detective Sanderson indicated that you made a statement to him that you were aware of indiscretions that [Robert] had had, would you have any reason to dispute that?
[Mary]: If I was aware of any indiscretions. I don't know if I-don't know if I would have said that. I wouldn't dispute anything I would have said to him because if I said to him, it's on record, but you have to remember that this is just such a blur, I can't remember specifics.
[Question]: Do you recall using the words indiscretions-or word indiscretion?
[Mary]: That would be a word I would use.
[Question]: And what would you use that word for?
[Mary]: Well, these issues, these sexual issues are most definitely indis-you know, it's wrong.
[Question]: When did you first learn about what you're calling indiscretions?
[Mary]: I would say when I was either with Child Protective Services or Investigator Brooks. And I don't know what dates or years.
[Question]: Detective Brooks would be after 2009. Would CPS be before or after 2009?
[Mary]: It-it ran very close. I don't know.

Id. at 33. After a hearing, the trial court granted Mary's motion for summary judgment. Appellants now appeal.

Discussion and Decision

I. Standard of Review

[8] When reviewing a grant or denial of a motion for summary judgment, our standard of review is the same as it was for the trial court in ruling on the motion initially. Knighten v. E. Chi. Hous. Auth. , 45 N.E.3d 788, 791 (Ind. 2015). The moving party carries the burden of showing there are no genuine issues of material fact and it is entitled to judgment as a matter of law. Id. "A fact is 'material' if its resolution would affect the outcome of the case, and an issue is 'genuine' if a trier of fact is required to resolve the parties' differing accounts of the truth, or if the undisputed material facts support conflicting reasonable inferences." Hughley v. State , 15 N.E.3d 1000, 1003 (Ind. 2014). Unlike federal practice, the moving party must go beyond merely showing the party carrying the burden of proof lacks evidence on a necessary element and "affirmatively negate an opponent's claim." Id. If the moving party carries Indiana's "more onerous burden," then the non-moving party must present evidence establishing the existence of a genuine issue of material fact. Id. ; Knighten , 45 N.E.3d at 791. We consider only the evidence the parties designated to the trial court and we construe all factual inferences in favor of the non-moving party, resolving all doubts regarding the existence of a material issue against the moving party. See Ind. Trial Rule 56(C), (H) ; Knighten , 45 N.E.3d at 791.

[9] Indiana's heightened summary judgment standard "consciously errs on the side of letting marginal cases proceed to trial on the merits, rather than risk short-circuiting meritorious claims." Hughley , 15 N.E.3d at 1004. Summary judgment is rarely appropriate in negligence cases because they are "particularly fact sensitive and are governed by a standard of the objective reasonable person-one best applied by a jury after hearing all of the evidence." Rhodes v. Wright , 805 N.E.2d 382, 387 (Ind. 2004) (internal citations and quotations omitted).

II. Admissible Evidence

[10] As an initial matter, Mary alleges that Appellants rely on "mere speculation in their statement of facts, argument, and appendix." Appellee's Brief at 10. Specifically, Mary's argument focuses on Appellants' reliance on Detective Sanderson's affidavit in which he gives his "impressions" from his interviews with Robert and Mary. See App. of Appellants, Vol. III at 85-86.

[11] In ruling on a motion for summary judgment, a trial court may only consider material deemed appropriate by Indiana Trial Rule 56(E). Duncan v. Duncan , 764 N.E.2d 763, 766 (Ind. Ct. App. 2002), trans. denied . That rule provides:

Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies not previously self-authenticated of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.

The affidavit requirements of Trial Rule 56(E) are mandatory and a court considering a summary judgment motion should disregard inadmissible information contained in supporting or opposing affidavits. Id. The party offering the affidavit into evidence bears the burden of establishing its admissibility. Id.

[12] At the summary judgment hearing, Mary alleged that Detective Sanderson's speculations were based solely on inadmissible hearsay and violated the Indiana Dead Man's Statute, arguing:

Just to add an additional wrinkle to this case. It's hearsay. Whatever [Robert] told affidavit [sic] or told Detective Sanderson what is more it's in violation of the dead man [sic] statutes. He passed away in February of two thousand seventeen. So you need to have more evidence then [sic] [Robert] telling an Officer two and a half years after the incident yeah I did molest someone in the past. There is if they can point to any evidence from Mary Whipple stated yes I knew that he had done this act prior to December of two thousand nine after fifty hours of depositions, I am still looking for it. It's not there and that and I will leave it at that.

Transcript, Volume I at 34-35.

[13] However, on appeal, although Mary employs a subheading titled, "Appellants rely on hearsay and speculation as factual evidence," Appellee's Br. at 10, she never advances an argument regarding hearsay or the Indiana Dead Man's Statute. Indiana Appellate Rule 46(A)(8) provides that the argument section of the appellant's brief must "contain the contentions of the appellant on the issues presented, supported by cogent reasoning," along with citations to the authorities, statutes, and parts of the record relied upon, and a clear showing of how the issues and contentions in support thereof relate to the particular facts under review. Because Mary failed to do so, she has therefore waived these arguments. See, e.g., Reed v. Reid , 980 N.E.2d 277, 297 (Ind. 2012) ("Failure to comply with this rule results in waiver of the argument on appeal.").

[14] In place of those arguments, Mary alleges that Detective Sanderson's use of the word "impression" constitutes improper opinion testimony by a lay witness. Appellee's Br. at 10. "A mere general objection, or an objection on grounds other than those raised on appeal, is ineffective to preserve an issue for appellate review." Raess v. Doescher , 883 N.E.2d 790, 797 (Ind. 2008). As such, we view Mary's somewhat casual comments regarding hearsay and the Indiana Dead Man's Statute as insufficient to preserve the error of improper opinion testimony. Mary has therefore waived any objection and Detective Sanderson's affidavit may be considered. See Riggin v. Rea Riggin & Sons, Inc., 738 N.E.2d 292, 306 n.9 (Ind. Ct. App. 2000) (concluding that we may consider affidavits regardless of impropriety where party failed to adequately object to their admission).

[15] Waiver notwithstanding, we do not view Deputy Sanderson's "impression" statement as improper opinion testimony. Appellee's Br. at 10. Mary seemingly confines this argument to one instance: that it was Detective Sanderson's "impression that, prior to December 20, 2009, Robert B. Whipple informed Mary Whipple that he that he molested a child." App. of Appellants, Vol. III at 85. Opinion testimony by a lay witness is limited to those opinions rationally based on some combination of the witness's own personal observation, knowledge, and past experience. Ackles v. Hartford Underwriters Ins. Corp. , 699 N.E.2d 740, 743 (Ind. Ct. App. 1998), trans. denied . "Lay witness opinion testimony must not only be based on the personal perception of the witness, it also must be 'rationally' based on that perception. Thus, speculation or testimony based on improper inferences is inadmissible." Id.

[16] Here, Mary argues that Detective Sanderson does not have personal knowledge that "prior to December 20, 2009," Robert informed Mary that he molested a child. Appellee's Br. at 10. In context, immediately preceding that statement, Detective Sanderson stated that "Robert E. Whipple informed me that he had told his wife Mary Whipple that he had molested a girl in the past." App. of Appellants, Vol. III at 85. Thus, the issue becomes only whether Robert told Mary that information prior to December 20, 2009-the date of the first molestation underlying Appellants' cause of action.

[17] In Satterfield v. State , our supreme court explained:

Helpful opinions are not exclusive to experts or skilled witnesses. Any witness "not testifying as an expert"-whether an ordinary lay witness or a skilled witness-may testify "in the form of an opinion" if it is "(a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness's testimony or determination of a fact in issue." Ind. Evidence Rule 701. "The requirement that the opinion be 'rationally based' on perception simply means that the opinion must be one that a reasonable person could normally form from the perceived facts," Davis v. State , 791 N.E.2d 266, 268 (Ind. Ct. App. 2003), trans. denied , which are facts received "directly through any of the [witness's own] senses," Ashworth v. State , 901 N.E.2d 567, 572 (Ind. Ct. App. 2009) (quoting Kubsch v. State , 784 N.E.2d 905, 922 (Ind. 2003) (defining "perception" under Evidence Rule 701 ) ), trans. denied . And the witness's opinion is "helpful" "if the testimony gives substance to facts, which were difficult to articulate." McCutchan v. Blanck , 846 N.E.2d 256, 262 (Ind. Ct. App. 2006).

33 N.E.3d 344, 352 (Ind. 2015).

[18] Here, Detective Sanderson's "impression" is both rationally based on his perception and helpful to a clear understanding of his testimony. Indeed, even absent an express statement, there are countless context clues in the course of a conversation from which the recipient of information can determine, or at least opine, the order in which events occurred. Mary argues, however, that this "impression" is not rational considering Mary's and Robert's subsequent testimony-referring to the fact that both Mary and Robert denied having any such conversation. But this is no matter. As noted above, a statement is rational if a reasonable person could form the opinion from the perceived facts and we need not look to other testimony to determine whether the opinion is consistent. Davis , 791 N.E.2d at 268. Therefore, even if Mary had not waived this issue for our review, Detective Sanderson's "impression" would nevertheless be admissible evidence for the trial court's evaluation on summary judgment.

III. Negligent Supervision

[19] Having concluded Appellants' designated evidence was admissible, we turn to Appellants' claim that the trial court improperly granted summary judgment to Mary on the issue of negligence. We agree.

[20] Appellants advance two general theories of negligence against Mary: (1) negligent supervision; and (2) premises liability. See App. of Appellants, Vol. II at 18-19. For all claims of negligence, a plaintiff must show a duty owed to the plaintiff by the defendant, a breach of that duty, and a compensable injury proximately caused by the breach. Kroger Co. v. Plonski , 930 N.E.2d 1, 6 (Ind. 2010). We begin with negligent supervision.

[21] At the core of this appeal is whether Mary owed Appellants a duty of care because, "[a]bsent a duty, there can be no breach and, therefore, no recovery in negligence." Bowman ex rel. Bowman v. McNary , 853 N.E.2d 984, 990 (Ind. Ct. App. 2006) (citation and quotation omitted). Generally, the existence of a duty is a pure question of law appropriate for disposition by summary judgment. Ind. Dep't of Transp. v. Howard , 879 N.E.2d 1119, 1122 (Ind. Ct. App. 2008). However, where factual questions are interwoven, the existence of a duty may be a mixed question of law and fact to be determined by the fact-finder. Id.

A. Waiver

[22] As a preliminary matter, Mary alleges that the Appellants waived arguments regarding "in loco parentis, custodians, and assumed duty" pertaining to the claim of negligent supervision because they "were not properly raised at the trial court level." Appellee's Br. at 7.

[23] It is well established that Appellants "may not change [their] theory on appeal and argue an issue that was not properly presented to the trial court." Pardue v. Smith , 875 N.E.2d 285, 289-90 (Ind. Ct. App. 2007). "Nor may a party raise a new issue on appeal under the cloak of evidence relevant to a similar, yet distinct issue that was properly pled before the trial court." Id. This is based on notions of fairness which require an opposing party have notice of an issue which was not previously pleaded at the trial court level. Id.

[24] We have explained, however:

The rule that parties will be held to trial court theories by the appellate tribunal does not mean that no new position may be taken, or that new arguments may not be adduced; all it means is that substantive questions independent in character and not within the issues or not presented to the trial court shall not be first made upon appeal. Questions within the issues and before the trial court are before the appellate court, and new arguments and authorities may with strict propriety be brought forward.

Dedelow v. Pucalik, 801 N.E.2d 178, 183-84 (Ind. Ct. App. 2003) (quotation omitted) (agreement expressed by Wagner v. Yates, 912 N.E.2d 805, 811 n.3 (Ind. 2009) ).

[25] With the exception of in loco parentis , which was not adequately developed until Appellants' reply brief, we conclude that Appellants sufficiently raised the issues they now argue on appeal. See Felsher v. Univ. of Evansville, 755 N.E.2d 589, 593 n.6 (Ind. 2001) (noting that appellants are not permitted to present new arguments in their reply briefs, and any argument an appellant fails to adequately raise in their initial brief is waived for appeal). Accordingly, Appellants have not waived the remaining arguments.

B. Duty

[26] Returning to the core of this appeal-the element of duty-Mary argues that to determine whether a duty existed, we must look to the three-part balancing test originally outlined in Webb v. Jarvis : (1) the relationship between the parties; (2) the foreseeability of harm; and (3) public policy concerns. 575 N.E.2d 992, 995-97 (Ind. 1991). However, as our supreme court has long held and Appellants now argue, "a judicial determination of the existence of a duty is unnecessary where the element of duty has already been declared or otherwise articulated." Rogers v. Martin , 63 N.E.3d 316, 321 (Ind. 2016) (quotation and citation omitted). Here, we conclude that genuine questions of material fact remain regarding (1) whether Mary possessed a duty of care as a person to whom the care of a child was entrusted; and/or (2) whether Mary assumed a duty a care.

1. Entrusted with the Care of a Child

[27] Appellants first allege, "The duty of a person who assumes custody of a child to exercise reasonable care for the safety of the child has already been declared and is well established in this state and throughout the country." Br. of Appellants at 13. Indeed, Indiana law recognizes a duty of care on behalf of a person to whom the care of a child is entrusted. See, e.g., Vetor by Weesner v. Vetor , 634 N.E.2d 513, 515 (Ind. Ct. App. 1994) (noting that child's grandfather "owed her a duty of reasonable care as the person to whom her care had been entrusted."). "The duty exists whether or not the supervising party has agreed to watch over the child for some form of compensation." Davis v. LeCuyer , 849 N.E.2d 750, 757 (Ind. Ct. App. 2006), trans. denied .

[28] In Pfenning v. Lineman , 947 N.E.2d 392 (Ind. 2011), a sixteen-year-old accompanied her grandfather to a golf outing with the permission of her mother. Grandfather then volunteered granddaughter, who was unfamiliar with the sport of golf, to operate a beverage cart during the golf outing. After making several trips around the golf course, granddaughter was struck in the mouth with an errant tee-ball, injuring her mouth, jaw, and teeth. Granddaughter sued her grandfather alleging, inter alia , negligent supervision and, in turn, grandfather argued that he did not owe his granddaughter a duty of care. The trial court granted summary judgment in favor grandfather and we affirmed on appeal.

[29] On transfer, our supreme court declined grandfather's invitation to apply Webb 's three-part balancing test and instead relied upon the "well recognized duty in tort law that persons entrusted with children ... have a special responsibility by the common law to supervise their charges." Id. at 410. The court then concluded that a duty existed because granddaughter "was explicitly entrusted to her grandfather's care and supervision by her mother." Id.

[30] Here, it remains a question of fact whether Mother entrusted Child to Mary's care and supervision. See Ind. Dep't of Transp. , 879 N.E.2d at 1122 (noting the existence of a duty may be a mixed question of law and fact). Mother made the arrangements for Child to stay at the Whipples' home on the phone with Mary and Mary repeatedly invited Child to stay at the home and went so far as to give Child her own room at the residence. Mary told Mother that it was "all right" for Child to be with Robert until she returned home from work and that she would be home shortly after Child was dropped off. App. of Appellants, Vol. III at 50. On these facts, a reasonable factfinder could conclude that Mother entrusted Child's care and supervision to Mary, her own mother, and not to Robert.

2. Assumed Duty

[31] Alternatively, a factfinder could reasonably conclude that Mary assumed a duty of care. In Yost v. Wabash College , our supreme court explained:

"A duty of care may ... arise where one party assumes such a duty, either gratuitously or voluntarily. The assumption of such a duty creates a special relationship between the parties and a corresponding duty to act in the manner of a reasonably prudent person." Delta Tau Delta , [Beta Alpha Chapter v. Johnson , 712 N.E.2d 968, 975 (Ind. 1999) ] (alteration in original) (quoting Plan-Tec, Inc. v. Wiggins , 443 N.E.2d 1212, 1219 (Ind. Ct. App. 1983) ), trans. not sought . The assumption of such a duty requires affirmative, deliberate conduct such that it is "apparent that the actor ... specifically [undertook] to perform the task that he is charged with having performed negligently, 'for without the actual assumption of the undertaking there can be no correlative legal duty to perform that undertaking carefully.' " Lather v. Berg , 519 N.E.2d 755, 766 (Ind. Ct. App. 1988) (quoting Blessing v. United States , 447 F.Supp. 1160, 1188-89 (E.D. Pa. 1978) ), reh'g and trans. denied ; see also King v. Northeast Sec., Inc. , 790 N.E.2d 474, 486-87 (Ind. 2003) (quoting Lather ). Where "the record contains insufficient evidence to establish such a duty, the court will decide the issue as a matter of law." Delta Tau Delta , 712 N.E.2d at 975. The liability for the breach of assumed duty is expressed in the Restatement (Third) of Torts: Physical and Emotional Harm § 42 (2012), which states:
An actor who undertakes to render services to another and who knows or should know that the services will reduce the risk of physical harm to the other has a duty of reasonable care to the other in conducting the undertaking if:
(a) the failure to exercise such care increases the risk of harm beyond that which existed without the undertaking, or
(b) the person to whom the services are rendered or another relies on the actor's exercising reasonable care in the undertaking.
Thus, to impose liability resulting from breach of assumed duty, it is essential to identify and focus on the specific services undertaken. Liability attaches only for the failure to exercise reasonable care in conducting the "undertaking."

3 N.E.3d 509, 517 (Ind. 2014).

[32] Mary argues the record contains insufficient evidence to establish a specific assumed duty, other than a "vague claim" of failure to provide care, and urges the application of our decision in Merchants Nat'l Bank v. Simrell's Sports Bar & Grill, Inc., 741 N.E.2d 383 (Ind. Ct. App. 2000). Appellee's Br. at 18. Although Mary's argument is correct in the sense that we must "focus on the specific services undertaken," Yost, 3 N.E.3d at 517, we nevertheless find the designated evidence sufficient to create a question of fact for the jury.

[33] In Merchants National Bank , the plaintiff was shot and killed by another bar patron shortly after leaving a bar. After his death, his estate sued the bar alleging, inter alia , that the bar assumed a duty to protect its patrons from the criminal acts of third persons. In finding no assumed duty, we concluded:

there is no designated evidence that [the bar], through affirmative conduct or agreement, gratuitously undertook a duty to protect [the plaintiff] from the unforeseeable criminal act of a third-party. The Administrator points to evidence that [the bar] provided security for its patrons on Thursday, Friday and Saturday nights when it featured a band. However, it is undisputed that [the plaintiff] was shot on a Tuesday night. The evidence is insufficient to establish, as a matter of law, that [the bar] assumed a duty to protect [the plaintiff] from [the] criminal act.

741 N.E.2d at 388.

[34] Here, we may generally categorize Mary's assumed duty as one to protect Child from the foreseeable criminal attacks of third parties. The facts underlying Appellants' assumed duty argument are essentially the same as those underlying whether Mary had a duty as a person to whom the care of a child was entrusted. Similarly, the designated facts are sufficient to create a question of fact as to whether Mary engaged in "affirmative, deliberate conduct" such that it was apparent that she specifically undertook to protect Child from a foreseeable criminal attack. Yost , 3 N.E.3d at 517 ; see also Merchants Nat'l Bank, 741 N.E.2d at 388 (noting the "existence and extent" of an assumed duty "is ordinarily a question of fact for the trier of fact"). For, if a factfinder so concludes, this assumption of duty would create "a special relationship between the parties and a corresponding duty to act in the manner of a reasonably prudent person." Yost , 3 N.E.3d at 517.

[35] Underlying our decisions in many assumption of duty cases is our reluctance to impute broad definitions of duty that essentially render a party the guarantor of another's safety. See Hous. Auth. of City of South Bend v. Grady, 815 N.E.2d 151, 160 (Ind. Ct. App. 2004) ; Merchants Nat'l Bank, 741 N.E.2d at 389 ; Fast Eddie's v. Hall , 688 N.E.2d 1270, 1274 (Ind. Ct. App. 1997), trans. denied. This concern, however, is not present where a party takes affirmative action in creating a foreseeable harm-as is alleged here. Accordingly, we conclude questions of fact remain regarding whether Mary assumed a duty to protect Child from the foreseeable criminal attacks of third parties.

C. Breach

[36] Turning to the second element of negligence-breach-Appellants allege this too remains a question of fact. We agree.

[37] "The question of the breach of a duty is usually one for the trier of fact." Cox v. Paul , 828 N.E.2d 907, 911 (Ind. 2005). "However, if any reasonable jury would conclude that a specific standard of care was or was not breached, the question of breach becomes a question of law for the court." Id. at 912.

[38] First, in the context of a duty of care on behalf of a person to whom the care of a child is entrusted, we return to our discussion of Pfenning , where a sixteen-year-old accompanied her grandfather to a golf outing and was struck with an errant golf ball. 947 N.E.2d at 397. In reversing the trial court's grant of summary judgment, our supreme court explained:

While the mechanism of her injury, being struck by an errant golf ball, is not an unusual risk to adults on a golf course, a possible viable claim for breach of duty is nevertheless shown by the particular circumstances of the present case. The grandfather does not challenge the facts and inferences indicating that he was aware of the plaintiff's age, her lack of familiarity with golf, and particularly her lack of awareness of the risk of injury from wayward golf balls. The designated evidence does not establish that the plaintiff's mother was aware of and agreed to her daughter's exposure to such risks. As to the issue of breach of duty, whether it was reasonable for him to subject her to such risks depends upon genuine issues of fact for determination at trial.

Id. at 410. Although the mechanism of injury here is quite different from that of Pfenning , we find its reasoning persuasive regarding negligent supervision of a child and its accompanying standard of care.

[39] Taking the facts, as we must, in favor of Appellants, the designated evidence supports a finding that Mary breached her duty of care when she allowed Child to be left alone with an individual, indeed her husband, whom she knew to have previously molested a child. Perhaps more importantly, however, knowing this past, Mary reassured Mother that it was "all right" for Child to be left alone with Robert until she returned home from work in Indianapolis. App. of Appellants, Vol. III at 50. And, like Pfenning , the evidence fails to establish that Mother was aware of and agreed to Child's exposure to such risks and a determination of whether it was reasonable for Mary to subject Child to such risks "depends upon genuine issues of fact for determination at trial." Id. at 410.

[40] As to breach of an assumed duty, Mary argues simply that "absent a duty, there can be no breach." Appellee's Br. at 20. However, in her motion for summary judgment, Mary relied on Restatement (Second) of Torts Section 315 for the proposition that generally a person has no duty to control the conduct of a third person, nor to warn those endangered by such conduct, in the absence of a "special relationship" either to the third person or to the victim. Appellants' App., Vol. II at 216-17.

[41] Finding no Indiana precedent directly on point, we turn to Pamela L. v. Farmer , 112 Cal. App. 3d 206, 169 Cal.Rptr. 282 (1980), where the Second District (Division 5) of the California Courts of Appeal addressed an analogous factual situation and faced a similar argument on appeal. There, three minors sued a husband and wife alleging, inter alia , negligence arising from husband's sexual molestation of the minors in their home. The minors alleged that wife already knew of husband's prior history of molesting women and children but nevertheless encouraged and invited plaintiffs to use the swimming pool at her house and told plaintiffs' parents that it was safe for their children to play at her house while she was at work and her husband was home. In holding that wife had assumed a "special relationship," the court explained:

Respondent cites the principle that generally a person has no duty to control the conduct of a third person, nor to warn those endangered by such conduct, in the absence of a "special relationship" either to the third person or to the victim. However, this rule is based on the concept that a person should not be liable for "nonfeasance" in failing to act as a "good Samaritan." It has no application where the defendant, through his or her own action (misfeasance) has made the plaintiff's position worse and has created a foreseeable risk of harm from the third person. In such cases the question of duty is governed by the standards of ordinary care.
This latter principle is embodied in Restatement Second of Torts section 302B which provides: "An act or an omission may be negligent if the actor realizes or should realize that it involves an unreasonable risk of harm to another through the conduct of the other or a third person which is intended to cause harm, even though such conduct is criminal."
Here respondent did not merely fail to prevent harm to plaintiffs from [her husband]. Respondent by her own acts increased the risk of such harm occurring. According to the allegations ..., respondent "encouraged and invited" the children to play in her swimming pool, prepared refreshments to "entice" the children, and "encouraged the parents ... to permit" the children to come to her premises by telling them it would be perfectly safe for the girls to swim when respondent was not there, because her husband would be there. This was done, it is alleged, with knowledge that [her husband] had molested women and children in the past and that it was reasonably foreseeable he would do so again if left alone with the children on the premises. By encouraging and inviting the children to be alone with [her husband] under circumstances where he would have peculiar opportunity and temptation to commit such misconduct, respondent could be held to have unreasonably exposed the children to harm.

Id. at 209-10, 169 Cal.Rptr. 282 (citations and footnote omitted).

[42] On these surprisingly similar facts, we find Pamela L. 's reasoning appropriate here, too. Accordingly, the designated facts are sufficient to create a question of fact as to whether Mary undertook a "special relationship" with Child and, more importantly, whether Mary breached a duty of care by permitting-or even encouraging-Child to be left alone with someone she may have known to have molested a child in the past.

D. Proximate Cause

[43] Finally, Appellants argue the trial court's grant of summary judgment was inappropriate because proximate causation remains a question of fact. Again, we agree.

[44] A negligent act is said to be the proximate cause of an injury "if the injury is a natural and probable consequence, which in the light of the circumstances, should have been foreseen or anticipated." Bader v. Johnson , 732 N.E.2d 1212, 1218 (Ind. 2000).

Proximate cause in Indiana negligence law has two aspects. The first-causation in fact-is a factual inquiry for the jury. If the injury would not have occurred without the defendant's negligent act or omission, there is causation in fact. A second component of proximate cause is the scope of liability. That issue, which is also for the trier of fact, turns largely on whether the injury "is a natural and probable consequence, which in the light of the circumstances, should have been foreseen or anticipated." Under this doctrine, liability may not be imposed on an original negligent actor who sets into motion a chain of events if the ultimate injury was not reasonably foreseeable as the natural and probable consequence of the act or omission.

City of Gary v. Smith & Wesson , 801 N.E.2d 1222, 1243-44 (Ind. 2003) (citations omitted).

[45] On appeal, Mary argues that Robert's actions constituted "intervening criminal act[s] of a third party" which broke the causal chain of liability as it relates to Mary, Appellee's Br. at 24, because the "willful, malicious, criminal act of a third party is an intervening act which breaks the causal chain between the alleged negligence and the resulting harm." Id. at 23-24 (quoting Fast Eddie's , 688 N.E.2d at 1274 ).

[46] On this point, we turn to our supreme court's decision in Frankenmuth Mut. Ins. Co. v. Williams by Stevens, 690 N.E.2d 675 (Ind. 1997). There, a babysitter's husband molested one of the children in her care and while examining the child's claim of negligent supervision and the insurance company's motion for summary judgment based on exclusions in its policy, our supreme court explained:

Where a person's negligence creates a situation in which a third party might commit an intentional tort or criminal act, the negligence is not a proximate cause of any resulting injuries unless the negligent person "realized or should have realized the likelihood that such a situation might be created, and that a third person might avail himself of the opportunity to commit such a tort or crime." Restatement (Second) of Torts § 448 (1965) ; cf. Hooks SuperX, Inc. v. McLaughlin , 642 N.E.2d 514, 520-21 (Ind. 1994) (holding as matter of law that voluntary and willful suicide constitutes intervening cause). A factfinder in White's case would have had to decide (1) whether she was negligent and (2) whether she knew or should have known that her husband would molest [the child].

Id. at 678. Therefore, if it can be said that Mary realized or should have realized the likelihood that such a situation might be created, and that Robert might avail himself of the opportunity to commit such a tort or crime, then Mary may still be found liable for her negligence. Id.

[47] Here, we conclude that because the record contains conflicting evidence regarding Mary's role in Child being left alone with Robert and whether Mary knew or should have known about Robert's past, both components of proximate cause-causation in fact and scope of liability-remain questions of fact for the jury. Accordingly, the trial court's grant of summary judgment was inappropriate.

Conclusion

[48] Because genuine questions of material fact remain regarding all three elements of negligence, the trial court erred by granting summary judgment. We therefore reverse the judgment of the trial court and remand for further proceedings consistent with this opinion.

[49] Reversed and remanded.

Crone, J., and Bradford, J., concur.

      Robert died in 2017 while serving his sentence and the allegations against Robert are not involved in this appeal.

      Even if Mary had not waived the issue of the Indiana Dead Man's Statute by failing to advance an argument on appeal, the litigation involving Robert's estate is not before us. See ¶ 5, supra ; Ind. Code § 34-45-2-4(a)(3) (the statute applies to suits or proceedings: "where a judgment or allowance may be made or rendered for or against the estate represented by the executor or administrator"). Moreover, rather than excluding evidence, the statute prevents a particular class of witnesses from testifying as to the claims against the estate, Paullus v. Yarnelle , 633 N.E.2d 304, 308 (Ind. Ct. App. 1994), and there is no evidence that Detective Sanderson is a "necessary party to the issue," Ind. Code § 34-45-2-4(d) (providing that for a witness to be incompetent to testify, with minor exceptions, they must be both "a necessary party to the issue or record" and have an interest which is "adverse to the estate"). Because Detective Sanderson would neither gain, nor lose, by the direct legal operation of the judgment, he does not have an interest which renders him incompetent to testify. See Fisher v. Estate of Haley, 695 N.E.2d 1022, 1028 (Ind. Ct. App. 1998) (holding that although the plaintiff was not a direct party to the action, because he stood to gain from a judgment for retained corporate earnings, he was therefore a "party to the issue").

      There is no duty to control the conduct of a third person as to prevent him from causing physical harm to another unless
      (a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person's conduct, or
      (b) a special relation exists between the actor and the other which gives to the other a right to protection.

      Because we conclude genuine questions of material fact on the issue of negligent supervision remain, we need not address the alternative negligence claim based on premises liability.


author: Baker, Judge.

text:
    IN RE the ESTATE OF James E. HURWICH,
    Scott D. Hurwich, Appellant-Plaintiff, v. Stacey R. MacDonald, Appellee-Defendant
    Court of Appeals Case No. 71A04-1705-EU-990
    Court of Appeals of Indiana.
    FILED May 30, 2018
    Attorneys for Appellant: James M. Lewis, Michael J. Hays, Tuesley Hall Konopa LLP, South Bend, Indiana
    Attorney for Appellee: Timothy J. Maher, Barnes & Thornburg LLP, South Bend, Indiana
   Baker, Judge.

[1] James Hurwich was the father of Scott Hurwich ("Hurwich") and Stacey MacDonald. The Estate of James Hurwich ("the Estate") was opened in 2004 following his death. MacDonald administered the Estate until it closed in 2007. In 2013, Hurwich petitioned to reopen the Estate, which the probate court granted. In 2014, Hurwich filed a complaint against MacDonald, alleging that she had mismanaged the Estate's assets and breached her fiduciary duties. MacDonald filed a motion to dismiss Hurwich's complaint, which the probate court granted. Hurwich then filed a motion for leave to amend his complaint, which the probate court denied. Meanwhile, a successor personal representative administered the Estate, issued a final report, and requested closure of the Estate. The probate court then closed the Estate.

[2] Hurwich now appeals the probate court's denial of his motion for leave to amend his complaint and the procedure the probate court followed when closing the Estate. Finding no reversible error regarding Hurwich's motion but that the probate court failed to follow statutory procedure when closing the Estate, we affirm in part, reverse in part, and remand.

Facts

[3] The Estate was opened in 2004. MacDonald was appointed administrator of the Estate, and she administered it unsupervised until it was closed in 2007. Apparently, MacDonald failed to distribute approximately 600 items and assets belonging to her father before the Estate was closed. On March 6, 2013, Hurwich petitioned to reopen the Estate; the probate court granted Hurwich's petition. On June 18, 2013, the probate court appointed Paul Cholis as successor personal representative for the Estate. On October 3, 2014, Hurwich filed a complaint against MacDonald, under the Estate cause number EU-56, alleging that she had mismanaged the Estate's assets and breached her fiduciary duties. On November 14, 2014, MacDonald filed a motion to dismiss Hurwich's complaint under Indiana Trial Rule 12(B)(6), alleging that it had been untimely filed after the applicable statute of limitations had run. On June 12, 2015, the probate court granted MacDonald's motion and dismissed Hurwich's complaint with prejudice.

[4] On June 22, 2015, Hurwich filed a motion to reconsider. On July 27, 2015, a hearing on the motion to reconsider took place, and the probate court took the issue under advisement. Then, on February 9, 2016, while the motion to reconsider was still pending, Hurwich filed a motion for leave to amend his complaint. In his proposed amended complaint, he alleged that MacDonald had committed fraud when, in closing the Estate, she represented that she had fully administered the Estate and properly distributed all assets; he also alleged that she had taken personal property from the Estate for her own use.

[5] On May 6, 2016, Cholis filed a petition for instructions for "recovery of assets formerly owned by the decedent or in his possession at the time of his death." Appellant's App. Vol. II p. 42. In this petition, Cholis:

• Stated that MacDonald testified at her deposition that she had received gifts, including paintings, necklaces, diamond rings, and liquor bottles, from her father within five years of his death.
• Stated that MacDonald "testified that she, as the former Personal Representative of the estate, did distribute to herself certain items of tangible personal property which [Cholis] believe[d] constituted partial distributions to her and which should be taken into account by charging her with the value of such items so distributed upon the final distribution of the remaining tangible personal property; ..." Id. at 43.
• Stated that there were "numerous items of tangible personal property" located at the decedent's former residence that Cholis "believe[d] can and should be distributed among the three residuary beneficiaries of the estate" through an in-kind selection process and a public auction. Id.
• Requested the probate court to direct him to not attempt to recover items of tangible personal property that MacDonald identified as gifts that she received from her father before his death. Cholis cited to time limits in the probate code for proceedings against personal representatives and to case law in which a petition to re-open an estate was time-barred.

[6] On June 24, 2016, Hurwich filed a response to Cholis's petition in which Hurwich stated that the parties wanted instruction from the probate court about how to determine whether the items that MacDonald testified were gifts were actually gifts from their father or whether they were self-distributed items. Hurwich requested, among other things, that Cholis identify and catalog each of the individual items in question. Hurwich also argued that the issue was not time-barred.

[7] A hearing took place on July 27, 2016. On July 29, 2016, the probate court denied Hurwich's motion for leave to amend his complaint, finding that Hurwich was not entitled to amend a complaint that had been properly dismissed pursuant to the statute of limitations for relief against fraud. The probate court also found that Hurwich's complaint was not a valid cause of action because Hurwich filed it as part of the estate administration, rather than a separate cause of action, and therefore failed to pay a filing fee or have a summons issued. The probate court ordered for Hurwich and another beneficiary to have access to the decedent's home for an in-kind selection process of the 600 items located there and for all assets not selected to be sold at a public auction. Lastly, the probate court ordered that Hurwich's claim against MacDonald about gifts received before their father's death was time-barred under the statute of limitations.

[8] Throughout the fall of 2016, Cholis distributed the Estate's assets as ordered by the probate court. On March 10, 2017, Cholis filed a Supplemental Report of Distribution ("the Report") in which he summarized the distribution of the Estate's assets; listed the value of the assets that Hurwich, MacDonald, and another beneficiary received; requested that he be discharged as personal representative; and requested that the court order the Estate closed. That same day, the probate court approved the report and entered an order closing the Estate. On March 20, 2017, Cholis served a copy of the Report and the probate court's signed order to Hurwich and other interested parties. On March 30, 2017, Hurwich filed a motion to correct error, asking the probate court to vacate its order approving the Report because there was neither service nor an opportunity to object to the Report. On April 10, 2017, the probate court denied his motion. Hurwich now appeals.

Discussion and Decision

I. Motion for Leave to Amend Complaint

[9] Hurwich first argues that the probate court erred by denying his motion for leave to amend his complaint because he has a "right" to re-plead his claim pursuant to Trial Rule 12(B). Appellant's Br. p. 11. The probate court denied Hurwich's motion for leave to amend his complaint, finding that Hurwich's claim of fraud in his proposed complaint was barred by the six-year statute of limitations for relief against fraud and that his complaint was not a valid cause of action. Hurwich argues that he has a right to amend under Indiana Trial Rule 12(B), that the probate court failed to consider his proposed allegation of fraudulent concealment that could toll the statute of limitations, and that the probate court misconstrued the nature of his complaint. MacDonald argues that Hurwich's action was time-barred under the probate code and that Hurwich did not file a valid action. Although we reach the same outcome as the probate court, we disagree with the probate court's and the parties' analysis.

[10] Indiana Trial Rule 12(B)(6) allows a party to move to dismiss a pleading for failure to state a claim upon which relief can be granted. Trial Rule 12(B) also provides that when a court dismisses a pleading under Rule 12(B)(6), "the pleading may be amended once as of right pursuant to Rule 15(A) within ten [10] days after service of notice of the court's order sustaining the motion and thereafter with permission of the court pursuant to such rule." Under Trial Rule 15(A), "[a] party may amend his pleading once as a matter of course at any time before a responsive pleading is served .... Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be given when justice so requires." To facilitate decisions on the merits, "the Indiana Trial Rules generally implement a policy of liberal amendment of pleadings, absent prejudice to an opponent." Kimberlin v. DeLong , 637 N.E.2d 121, 128 (Ind. 1994). The probate court has broad discretion in granting or denying amendments to the pleadings, and we will reverse only if the probate court's decision is clearly against the logic and effect of the facts and circumstances before it or the reasonable deductions to be drawn therefrom. Kuehl v. Hoyle , 746 N.E.2d 104, 107 (Ind. Ct. App. 2001).

[11] According to Hurwich, Trial Rule 12(B) gives him the right to amend his complaint. However, Hurwich ignores the part of the rule that limits when a pleading may be amended as of right-it must be done within ten days after service of notice of the court's order granting the motion to dismiss. Hurwich filed his motion for leave to amend his complaint on February 9, 2016, nearly eight months after the probate court granted MacDonald's motion to dismiss. Accordingly, when Hurwich filed his motion for leave to amend his complaint, he had no automatic right to do so. And although a court may, under Rules 12(B) and 15(A), allow a party to amend a pleading after those ten days have passed, the court is required to do so only "when justice so requires." T.R. 15(A). Hurwich did not argue that justice required an amendment, and we decline to make the argument for him. The probate court did not err by denying his motion for leave to amend his complaint.

[12] Hurwich also challenges the probate court's decision to dismiss his motion with prejudice, arguing that a Trial Rule 12(B)(6) dismissal should be without prejudice. Hurwich is correct that a dismissal under this rule "is without prejudice, since the complaining party remains able to file an amended complaint within the parameters of the rule." In re Scott David Hurwich 1986 Irrevocable Tr. , 59 N.E.3d 977, 984 (Ind. Ct. App. 2016) (citations and internal quotation marks omitted). Thus, the probate court erred by dismissing his complaint with prejudice. But a dismissal with prejudice is a final judgment, id. at 980, and the time to appeal a final judgment is within thirty days after its entry is noted in the Chronological Case Summary. Ind. Appellate Rule 9(A)(1). The probate court dismissed Hurwich's complaint with prejudice on June 12, 2015. Hurwich did not appeal that decision until he filed his notice of appeal on May 9, 2017, nearly two years after the dismissal of his complaint. His challenge to the probate court's decision is untimely and unavailing.

II. The Report

[13] Hurwich next argues that the probate court erred by denying him his statutory right to object to the Report. Our primary goal in statutory construction is to ascertain and give effect to the intent of the legislature. Meyer v. Beta Tau House Corp. , 31 N.E.3d 501, 513 (Ind. Ct. App. 2015). We apply a de novo standard of review to questions of statutory interpretation. Id.

[14] Indiana's Probate Code provides that when an estate is ready to be closed, the personal representative must "render a final account and at the same time petition the court to decree the final distribution of the estate." Ind. Code § 29-1-17-2(a) (2007). "Upon the filing of any account in a decedent's estate, hearing and notice thereof shall be had as set forth in this section." I.C. § 29-1-16-6(a) (emphases added). The statute explains that

If the account is for final settlement the court or clerk shall set a date by which all objections to such final account and petition for distribution must be filed in writing and the clerk shall give notice to all persons entitled to share in the final distribution of said estate that a final report has been filed and will be acted upon by the court on the date set unless written objections are presented to the court on or before that date. The personal representative shall at the time said account is filed furnish to the clerk the names and addresses of all persons entitled to share in the distribution of the residue of said estate, whose names and addresses are known to the personal representative or may by reasonable diligence be ascertained as set forth in the personal representative's petition for distribution, together with sufficient copies of said notice prepared for mailing. The clerk shall send a copy of said notice by ordinary mail to each of said parties at least fourteen (14) days prior to such date....

I.C. § 29-1-16-6(b) (emphases added).

[15] Hurwich argues that the probate court erred by denying him an opportunity to object to the Report. The probate code explicitly mandates notice following the filing of any account. It requires that, following the filing of an account for final settlement, the personal representative give to the clerk the names and addresses of those entitled to share in the distribution of the estate and copies of notice prepared for mailing. It also requires that, when an account for final settlement is filed, the court or the clerk set a timeframe for objections and give notice to those entitled to share in the distribution of the estate that a final report has been filed and that the court will act upon it on a certain date unless the court receives written objections within the stated timeframe. Here, it is undisputed that Hurwich is entitled to share in the distribution of the Estate, that Cholis knew Hurwich's name to furnish to the clerk for notice, and that Cholis did not fulfill his duties to ensure that notice was given regarding the Report. It is also undisputed that neither the probate court nor the clerk set a timeframe for objections or gave notice about the Report or the timeframe for objections. In other words, the probate court failed to follow proper statutory procedure when closing the Estate.

[16] MacDonald suggests that this error was harmless and not prejudicial because Hurwich had an opportunity to be heard before and during the July 27, 2016, hearing. It is true that Hurwich filed a written objection to Cholis's petition for instructions before that hearing. But whether Hurwich objected to those instructions has no bearing on and is irrelevant to whether he had an opportunity to object to the Report, which was filed more than seven months later, on March 10, 2017. The probate code explicitly requires notice and an opportunity for objections to accounts for final settlements. Among other things, the Report leaves questions about how the assets that MacDonald distributed to herself were administered. Hurwich had a statutory right to receive notice of the filing of the Report and an opportunity to object to it, and he was denied this right. As it is apparent that he had reason to object, we find that he was harmed by the probate court's failure to follow the procedure described in the probate code.

[17] We reverse the closure of the Estate and remand for further proceedings giving Hurwich the opportunity to object to the Report.

[18] The judgment of the probate court is affirmed in part, reversed in part, and remanded for further proceedings.

Kirsch, J., and Bradford, J., concur.

      Cholis filed a petition for instructions on May 6, 2016. In this petition, he stated that MacDonald "testified that she, as the former Personal Representative of the estate, did distribute to herself certain items of tangible personal property which the [successor personal representative] believes constituted partial distributions to her and which should be taken into account by charging her with the value of such items so distributed upon the final distribution of the remaining tangible personal property; ..." Appellant's App. Vol. II p. 43. In other words, Cholis concluded that MacDonald had improperly distributed certain assets from the Estate and intended to take that distribution into account during the administration of the Estate. However, it is unclear from the Report whether MacDonald's partial distributions to herself were, in fact, accounted for.