dissenting.
I respectfully dissent from the majority's conclusion that the trial court did not abuse its discretion in denying Lindsay and Krag's petition to terminate Barbara's guardianship.
It is well-settled that when a parent initiates an action to obtain custody, a non-parent seeking to retain custody must bear the burden of overcoming the parent's presumptively superior right to custody. Hunt v. Whalen, 565 N.E.2d 1109, 1110-11 (Ind.Ct.App.1991). However, the manner in which this presumption is rebutted has been subjected to various interpretations. In Froelich v. Clark, 745 N.E.2d 222 (Ind.Ct.App.2001), trans. denied, this court evaluated the relevant case law, statutory amendments, and constitutional concerns, holding that the following is the appropriate standard for court to apply when considering a parent/non-parent child custody dispute:
First, there is a presumption in all cases that the natural parent should have custody of his or her child. The third party *1278bears the burden of overcoming this presumption by clear and cogent evidence. Evidence sufficient to rebut the presumption may, but need not necessarily, consist of the parent's present unfitness, or past abandonment of the child such that the affections of the child and third party have become so interwoven that to sever them would seriously mar and endanger the future happiness of the child. However, a general finding that it would be in the child's "best interest" to be placed in the third party's custody is not sufficient to rebut the presumption. If the presumption is rebutted, then the court engages in a general "best interests" analysis. The court may, but is not required to, be guided by the "best interests" factors listed in Indiana Code Sections 31-14-13-2, 31-14-13-2.5, 81-17-2-8, and 831-17-2-8.5, if the proceeding is not one explicitly governed by those sections. If a decision to leave or place custody of a child in a third party, rather than a parent, is to be based solely upon the child's "best interests," as opposed to a finding of parental unfitness, abandonment, or other wrongdoing, such interests should be specifically delineated, as well as be compelling and in the "real and permanent" interests of the child.
Id. at 230-31. (citation omitted).
I believe that the trial court's findings do not support the judgment denying Lindsay and Krag's petition to terminate Barbara's guardianship of T.C. A non-parent seeking custody of a child is required to prove the parent's unfitness at the present time, not at some time in the past. Froelich, 745 N.E.2d at 282. In the present case, it is my determination that Barbara failed to rebut Lindsay's presumptively superior right to custody with clear and cogent evidence showing that Lindsay was presently unfit. Id. Although the majority acknowledges the fact that the trial court did not specifically find that Lindsay was presently an unfit parent, the majority chose to base its decision on the trial court's finding that "Barbara's concerns about Lindsay's inability to care for T.C. are justified." (Appellant's Appendix at 56).
A review of the trial court's findings shows that Lindsay had a "sketchy" employment history. (Appellant's Appendix at 54). In fact, Lindsay was fired from three jobs in the past. The evidence also reflects Lindsay's history of not paying bills in a timely manner and that she maintained a messy home. However, there were also findings presented by the trial court that Lindsay is presently employed and has been employed at the same job for the past seven months. The job pays above minimum wage and her employer considers her to be a good employee. Lindsey also has moved into her own house in order to provide a home for T.C. I believe that Barbara had the burden to prove Lindsay's unfitness at the present time, not at some time in the past. The trial court's findings do not support Barbara's contention that Lindsay is presently an unfit mother. See Froelich, 745 N.E.2d at 230-31; Harris v. Smith, 752 N.E.2d 1283, 1290 (Ind.Ct.App.2001).
Additionally, there is no finding that Lindsay voluntarily relinquished T.C. for any considerable amount of time. It is clear from the findings of the trial court that Lindsay and Krag initially consented to placing T.C. in Barbara's custody for the purpose of providing medical insurance. However, Lindsay and Krag have always remained active in T.C.'s life. The findings also show that Barbara allowed Lindsay to take T.C. and move in with Krag. Further, Barbara allowed Lindsay to live alone with T.C. in the Winslow Farms house. Barbara may have been the *1279court appointed guardian of T.C., but she permitted Lindsay to act as a primary caretaker of T.C. From the time of T.C.'s birth until the time of filing the petition, Lindsay and Barbara co-parented and shared the parenting responsibilities of T.C., from his physical care to transporting him to and from daycare. Therefore, I find that Lindsay never voluntarily relinquished her maternal role with T.C. to a degree that the affections of T.C. and Barbara are so interwoven that to sever them would seriously mar and endanger the future happiness of T.C. See id.
Finally, Lindsay did not acquiesce in the guardianship by relying heavily upon Barbara for help in caring for T.C. It is true that Barbara provided for T.C. and Lindsay financially, but I believe that financial reasons alone are insufficient to rebut the presumption of the fundamental and superior right of Lindsay to have custody of her child. It would undermine public policy to base a petition for termination of guardianship on financial reasons alone. Thus, I decline to promote such a policy. The Record shows that Barbara never intended for the guardianship to last forever. T.C. will not be the first or the last minor child to be raised by a single or divorced mother who is receiving assistance from a third party. To deny Lindsay her superi- or right to parent T.C. based on the evidence presented to the trial court is viola-tive of her fundamental right to parent. See Harris, 752 N.E.2d at 1288-89. As we noted in Froelich, 745 N.E.2d at 233:
For the sake of children, society should encourage parents who are experiencing difficulties raising them to take advantage of an available "safety net," such as a grandparent who is willing to accept temporary custody of a child. It would discourage such action by parents in difficult straits and discourage efforts to "reform" or better their life situation if their chances of later reuniting with their children were reduced. ©
In the present case, Lindsay took advantage of the available "safety net" in Barbara for the past five years. Lindsay now has a full-time job, a house, and a way to provide health insurance for T.C. The trial court did not find Lindsay to be an unfit parent. In fact, the trial court found that Lindsay was capable of sharing the parental responsibilities of T.C. on a half-time basis with Barbara. I think that the majority failed to consider this fact when it changed the standard from proving a parent is "presently unfit" to "a non-parent proving that her concerns about the parent's inability to care for a child are justified."
Consequently, I find that the trial court's findings do not reveal that Lindsay is an unfit parent, that she voluntarily relinquished her maternal role with T.C. to a degree that the affections of T.C. and Barbara are so interwoven that to sever them would seriously mar and endanger the future happiness of T.C., or that her conduct constitutes a long acquiescence of T.C. to Barbara. See Froelich, 745 N.E.2d at 230-31. Nor do I believe that the findings reveal the existence of any compelling, real and permanent interest of T.C. that would be best served by the continuance of Barbara's guardianship. Id. Accordingly, I conclude that the trial court abused its discretion when it denied Lindsay and Krag's Petition to Terminate Guardianship and Restore Custody of Minor Child to Mother with Appropriate Order for Father because the findings of the trial court were insufficient to rebut the presumption in favor of Lindsay's obtaining custody of T.C. See In re Paternity of J.A.C., 734 N.E.2d 1057, 1059 (Ind.Ct.App.2000). Therefore, I dissent.