J.S. v. M.C. (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: July 25, 2018
• Docket: 34A04-1711-MI-2715
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jul 25 2018, 9:08 am

court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE Theo Ciccarelli Cornetta Justin K. Clouser Beth Silberstein Kokomo, Indiana Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

J.S., July 25, 2018 Appellant-Respondent, Court of Appeals Case No. 34A04-1711-MI-2715 v. Appeal from the Howard Superior Court M.C., The Honorable George A. Appellee-Petitioner Hopkins, Judge Trial Court Cause Nos. 34D04-1705-MI-377, 34D04-1705- MI-379

Altice, Judge.

Case Summary

[1] J.S. (Petitioner) appeals the trial court’s denial of her petition for third-party

visitation with M.C.’s (Mother) fraternal twins (the Children). Court of Appeals of Indiana | Memorandum Decision 34A04-1711-MI-2715 | July 25, 2018 Page 1 of 8 [2] We affirm.

Facts & Procedural History

[3] Petitioner and Mother met while both were living in Kentucky and began

dating in 2005. Mother moved back to Indiana in 2006 after her father had a

massive heart attack. The couple broke up at that time but continued to

communicate and eventually rekindled their relationship. Petitioner moved to

Indiana in July 2007 and began living in Mother’s home. Without marriage as

an option in Kentucky or Indiana at the time, the couple had a commitment

ceremony on September 8, 2007. Shortly thereafter, they executed reciprocal

wills and powers of attorney. Additionally, Mother was added to Petitioner’s

health insurance.

[4] From the start of their relationship, Mother expressed her long-held desire to

have children. The couple consulted fertility doctors and Mother eventually

went through several rounds of artificial insemination and then a round of in

vitro fertilization (IVF). All of these attempts to become pregnant failed, which

took a toll on the couple’s relationship. Petitioner and Mother ended their

relationship in 2010, with Petitioner moving out and purchasing her own home.

[5] Despite the breakup, Mother continued with her quest to become pregnant.

She discussed her decision with friends and family and indicated a preparedness

to be a single parent. Mother eventually obtained a loan from her parents to

pursue additional IVF treatments. Around December 2011, Mother and her

mother had an initial appointment with a different fertility doctor. The first

Court of Appeals of Indiana | Memorandum Decision 34A04-1711-MI-2715 | July 25, 2018 Page 2 of 8 IVF attempt with the new doctor failed in early 2012, but the second attempt

was successful a few months later.

[6] Mother and Petitioner had begun talking again in 2012 and were back in an

intimate relationship by the time of Mother’s successful IVF round. The

couple, however, continued to maintain separate residences. Petitioner

attended doctor appointments with Mother and was in the operating room

when the Children were born on December 12, 2012. Petitioner cut one of the

umbilical cords. After Mother and the Children returned home, Petitioner

assisted around the house and with their care, as did others. Petitioner spent

several nights a week at Mother’s home over the next several months.

[7] Mother returned to work when the Children were about four months old, and

she hired a nanny, Kelly Minglin, to care for them and do household chores.

Minglin, who was with the family for about two years, viewed Mother as the

Children’s only parent. Minglin, however, observed Petitioner at times provide

care for the Children. At no point did Petitioner pay Minglin or otherwise

provide financial support for the care of the Children.

[8] The couple permanently ended their romantic relationship in 2013, just prior to

the Children’s first birthday. They remained friends, and Petitioner continued

to be involved in Mother and the Children’s lives, including sometimes going

on vacations and spending holidays with them. Once the Children started

preschool, Petitioner, whom the Children referred to as “Dot”, picked them up

from school and watched them on Monday evenings so that Mother could run

Court of Appeals of Indiana | Memorandum Decision 34A04-1711-MI-2715 | July 25, 2018 Page 3 of 8 errands or work late. Rita Daily, a family friend, did the same for Mother on

Tuesday nights. Daily, Petitioner, and others often assisted on other nights too.

[9] Mother’s friendship with Petitioner began to slowly sour in the summer of

2016, and Mother started to reduce the family’s contact with her. Petitioner,

however, continued to watch the Children on Mondays and even attended a

Thanksgiving meal with Mother, the Children, and Mother’s extended family.

Following a heated conversation on December 12, 2016, Mother cut all ties

with Petitioner and refused any further contact between Petitioner and the

Children. Mother felt she was acting in the best interests of the Children even

though they were bonded with Petitioner.

[10] On April 6, 2017, under a separate cause number for each child, Petitioner filed

a verified third-party petition for parenting time. The causes proceeded in

tandem and were heard together, with evidentiary hearings held on August 31

and September 22, 2017. The trial court took the matter under advisement and

then issued a written ruling in each cause on October 26, 2017, denying the

petitions. Petitioner appeals, and the causes have been consolidated on appeal.

Additional facts will be provided below as needed.

Discussion & Decision

[11] On review, we will set aside the trial court’s findings of fact and conclusions

only if they are clearly erroneous, giving due regard to the opportunity of the

trial court to judge the credibility of witnesses. A.C. v. N.J., 1 N.E.3d 685, 688

(Ind. Ct. App. 2013). “A judgment is clearly erroneous when the record

Court of Appeals of Indiana | Memorandum Decision 34A04-1711-MI-2715 | July 25, 2018 Page 4 of 8 contains no evidence supporting the findings, the findings fail to support the

judgment, or when the trial court applies an incorrect legal standard to properly

found facts.” Id. “As we have repeatedly observed in child custody cases, trial

courts are in the position to see the parties, observe their conduct and

demeanor, and hear their testimony; therefore, their decisions receive

considerable deference on appeal.” Id. (quoting Nunn v. Nunn, 791 N.E.2d 779,

787 (Ind. Ct. App. 2003)).1

[12] To establish grounds for third-party visitation, a petitioner must first

demonstrate the existence of a custodial and parental relationship with the

children. Worrell v. Elkhart Cty. Office of Family & Children, 704 N.E.2d 1027,

1028 (Ind. 1998). After this threshold requirement is established, the petitioner

must show that visitation with petitioner would be in the best interests of the

children. Id. In other words, if the petitioner does not establish “the threshold

requisite of [a] custodial and parental relationship”, the court may not proceed

to a best interest determination. Id. (quoting Tinsley v. Plummer, 519 N.E.2d

752, 754 (Ind. Ct. App. 1988)). The threshold requirement recognizes the

constitutional dimension of parental rights and the well-established

presumption that “a fit parent acts in the child’s best interests in making

decisions concerning visitation with third parties.” A.C., 1 N.E.3d at 697.

1 Pure questions of law are reviewed de novo. Id. at 689. In this case, however, the issues turn on the facts.

Court of Appeals of Indiana | Memorandum Decision 34A04-1711-MI-2715 | July 25, 2018 Page 5 of 8 [13] Here, Petitioner clearly fell within a general class of individuals to which third-

party visitation may be awarded. See id. at 697 (former same-sex partner had

standing to seek visitation where “parties originally intended for the biological

mother’s partner to fulfill the role of the child’s second parent and actively

encouraged the development of a parental bond between the partner and the

child”); c.f. Brown v. Lunsford, 63 N.E.3d 1057, 1064-65 (Ind. Ct. App. 2016)

(holding that trial court abused its discretion by granting visitation to mother’s

long-term, live-in boyfriend and distinguishing A.C., 1 N.E.3d 685, because the

same-sex couple in A.C. could not be legally married in Indiana at the time of

their domestic relationship). Petitioner, however, was still required to establish

that she in fact had a custodial and parental relationship with the Children.

[14] Petitioner’s appellate argument is largely based on her assertions that the

Children “were born of her relationship with [Mother]” and that the two co-

parented the Children. Appellant’s Brief at 9. But Mother presented ample

evidence to the contrary. Further, this case is easily distinguishable from A.C.,

where:

Mother and Partner entered into a same-sex domestic relationship and lived together for several years. They had a commitment ceremony. They decided together to have a child and that Mother would carry the child conceived through artificial insemination. Partner was present at the child’s birth, and the three lived together as a family. The child referred to Mother and Partner as “Mama” and “Mommy,” respectively. Mother listed Partner as the child’s co-parent on school enrollment paperwork, and the two discussed Partner adopting

Court of Appeals of Indiana | Memorandum Decision 34A04-1711-MI-2715 | July 25, 2018 Page 6 of 8 the child. When the child was two years old, Mother and Partner ended their relationship.

Brown, 63 N.E.3d at 1064-65 (internal citation to A.C. omitted).

[15] Like in A.C., the parties had lived together for a number of years, had solidified

their relationship with a commitment ceremony because same-sex marriage was

not yet legal, and had decided to have children together, with Mother carrying

any children. Additionally, Petitioner was in the operating room when the

Children were born, and she cut one of the umbilical cords.

[16] Unlike A.C., however, the couple broke up for over a year during which time

Mother continued to pursue having children without Petitioner. Mother

obtained a loan from her parents, sought out a new fertility doctor, and began

IVF treatments with the assistance of her family. Mother had already begun the

eventually-successful IVF round when she and Petitioner rekindled their

relationship. Mother then welcomed Petitioner’s involvement in the doctor

appointments and the birth of the Children, but she made clear that Petitioner

would have no “formal legal right over the [C]hildren”. Appellant’s Brief at 7.

After the birth, Petitioner maintained a separate residence for herself, spending

several nights per week at Mother’s. Petitioner helped with the Children but

did not provide financially for them. The parties ended their intimate

relationship before the Children reached the age of one. Although Petitioner

remained actively involved with the family over the next few years, she did not

do so in a custodial or parental manner. The facts favorable to the judgment

Court of Appeals of Indiana | Memorandum Decision 34A04-1711-MI-2715 | July 25, 2018 Page 7 of 8 reveal that Mother has always been a single parent to the Children functioning

with the loving assistance of others, including Petitioner.

[17] Contrary to Petitioner’s assertion on appeal, the trial court did not

discriminatorily focus on her sexual orientation or fail to relate its findings to its

judgment. The trial court’s findings properly focus on facts relevant to its

determination that Petitioner did not act in a custodial and parental relationship

with regard to the Children, and the nature of Mother and Petitioner’s

relationship was relevant to this determination. Most notably, Mother

unilaterally decided to initiate the successful IVF round with the intent to be a

single parent, Petitioner never provided financially for the Children, Mother

and Petitioner did not live as a family unit after Mother gave birth to the

Children, and Mother made all parental decisions.

[18] Under the specific facts of this case, the trial court’s conclusion that Petitioner

failed to demonstrate the existence of a custodial and parental relationship

between herself and the Children is not clearly erroneous. Accordingly,

Petitioner lacked standing to seek visitation with the Children and no best-

interest determination was required.

[19] Judgment affirmed.

Najam, J. and Robb, J., concur.

Court of Appeals of Indiana | Memorandum Decision 34A04-1711-MI-2715 | July 25, 2018 Page 8 of 8