ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Daniel F. Zielinski Sharon L. Hammond
Deckard & O'Brien Greencastle, Indiana
Danville, Indiana
In The
INDIANA SUPREME COURT
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In re the GUARDIANSHIP OF B.H. and )
S.H., minor children ) 67S05-0101-JV-36
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APPEAL FROM THE PUTNAM CIRCUIT COURT
The Honorable Diana LaViolette, Judge
Cause No. 67C01-9812-GU-37
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On Petition To Transfer
June 21, 2002
DICKSON, Justice
In this appeal, the father of two children challenges an order
appointing their stepfather as permanent guardian following the death of
the children's mother. The Court of Appeals reversed. In re Guardianship
of B.H., 730 N.E.2d 743 (Ind. Ct. App. 2000). We granted transfer, Holley
v. Childress, 753 N.E.2d 1 (Ind. 2001), and now affirm the trial court.
B.H. and S.H. were born to Edward and Sherrie Holley during their
marriage. Edward and Sherrie separated in 1991. The children moved with
their mother to Indiana. During this time, their father, who was serving
in the Army, was stationed in Germany and Boston. The children remained
with their mother, who began living with John Childress, Sr., in September
1994. The Holley's marriage was dissolved in December 1996 pursuant to a
decree reflecting the parties' agreement that the mother have custody of
the children and the father have specified visitation. The decree ordered
the father to pay child support. The mother and Childress were married in
August 1997. The mother died on December 22, 1998, when the children were
13 and 14 years old. Childress, as their stepfather, immediately sought
and obtained an emergency order appointing him temporary guardian of the
children. On January 11, 1999, the father filed a petition to terminate
the temporary guardianship. Three days later, the stepfather petitioned
for appointment as permanent guardian, which the father sought to dismiss.
Following a contested hearing on the pending motions, the trial court
denied the father's motions and appointed the stepfather as permanent
guardian.
In his appeal, the father contends that the trial court abused its
discretion and that the evidence does not establish any of the factors
required in Hendrickson v. Binkley, 161 Ind. App. 388, 316 N.E.2d 376
(1974). The stepfather acknowledges that Hendrickson is a pivotal case,
but argues that the evidence amply supported several of its required
factors.
Indiana law has long recognized that "natural parents are entitled to
the custody of their minor children, except when they are unsuitable
persons to be entrusted with their care, control, and education." Gilmore
v. Kitson, 165 Ind. 402, 406, 74 N.E. 1083, 1084 (1905)); see also Ind.Code
§ 29-3-3-3, -6 (implicitly recognizing the natural parent presumption).
Unless otherwise determined in a dissolution decree or in another
proceeding authorized by law, a surviving parent has the right to custody
of minor children. Ind.Code § 29-3-3-3. In Gilmore, a natural father
sought the custody of his daughter following the death of his wife, whose
will expressed her desire that her sister, not her husband, have custody of
their daughter. Reversing an award of custody to the sister, this Court
noted that "the interest of the child is the paramount consideration" in
settling disputed custody claims, but emphasized that "we can not conceive
that it should be invoked or enforced against a parent under no
disabilities, unless he has forfeited his right by misconduct, or lost it
by voluntary relinquishment or by long acquiescence in the care and custody
of his child by another." 165 Ind. at 407, 74 N.E. at 1084. The opinion
stated:
The principle of the welfare of the child may be applied to
defeat the claims of a parent when he has voluntarily relinquished to
others the custody and care of his child until the affections of the
child and its foster parents have become so firmly interwoven that to
sunder them would seriously mar and endanger the future happiness and
welfare of the child.
Id. at 407-08, 74 N.E. at 1084.
While this Court has consistently recited that the child's interests
are paramount, our cases reflect a variation in the relative consideration
given to the rights of the natural parent. In contrast to the elevated
concerns for the natural parents emphasized in Gilmore, other cases appear
to have given this factor diminished weight. In Glass v. Bailey, 233 Ind.
266, 118 N.E.2d 800 (1954), we affirmed a judgment adverse to the natural
mother, observing that "the natural rights of the parent are entitled to
due consideration, but the welfare and happiness of the child is the
paramount consideration." 233 Ind. at 267-68, 188 N.E.2d at 801. We
similarly noted in Gilchrist v. Gilchrist, 225 Ind. 367, 75 N.E.2d 417
(1947), that "the rights of parents, however, are not absolute. They must
yield to the welfare of the child. Its welfare and best interest are the
paramount and controlling considerations . . . ." Id. at 372, 75 N.E.2d at
419.
Both Glass and Gilchrist stress that these cases are best placed in
the sound discretion of the trial court. "Hard and fast rules of law do
not prevail. The question presented rests upon the exercise of a sound
judicial discretion by the trial judge." Glass, 233 Ind. at 268, 118 N.E.2d
at 801. "The disposition of children is not controlled by hard and fast
rules of law but by the exercise of the sound judicial discretion of the
court confronted with the problem. Review by an appellate court of such
disposition is limited to the question of abuse of judicial discretion."
Gilchrist, 225 Ind. at 372, 75 N.E.2d at 419.
The Court of Appeals has also struggled with this issue. In
Hendrickson v. Binkley, 161 Ind. App. 388, 316 N.E.2d 376 (1974), the Court
of Appeals restated the Gilmore considerations in the following "three step
approach":
First, it is presumed it will be in the best interests of the child to
be placed in the custody of the natural parent. Secondly, to rebut
this presumption it must be shown by the attacking party that there
is, (a) unfitness, (b) long acquiescence, or (c) voluntary
relinquishment 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. The third step is that
upon a showing of one of these above three factors, then it will be in
the best interests of the child to be placed with the third party.
161 Ind. App. at 393-94, 316 N.E.2d at 380. To overcome the presumption
favoring the natural parent, one of the factors in the second step must be
shown by "clear and cogent evidence." Id. at 395, 316 N.E.2d at 381. Some
of its opinions follow the parental presumption approach of Hendrickson.
See, e.g. In re Guardianship of R.B., 619 N.E.2d 952, 954 (Ind. Ct. App.
1993); In re Guardianship of Riley, 597 N.E.2d 995, 997 (Ind. Ct. App.
1992); In re Custody of McGuire, 487 N.E.2d 457, 460 (Ind. Ct. App. 1985);
Kissinger v. Shoemaker, 425 N.E.2d 208, 210-11 (Ind. Ct. App. 1981); In re
Guardianship of Phillips, 178 Ind. App. 220, 224, 383 N.E.2d 1056, 1059
(1978).
Beginning with Turpen v. Turpen, 537 N.E.2d 537 (Ind. Ct. App. 1989),
however, several opinions by the Court of Appeals have avoided a strict
application of the Hendrickson methodology. In Turpen, the Court of
Appeals criticized this methodology because it "suggest[ed] to litigants
that the trial court must employ a mechanical approach in evaluating the
evidence before it." Id. at 539-40 n.2. Turpen instead applied an
ostensibly simplified analysis:
The question before us then is whether there is any evidence in favor
of the trial court's determination that the presumption the interest
of the child would best be served by placing him in the custody of the
natural mother had been sufficiently rebutted by the evidence.
537 N.E.2d at 539. Several opinions of the Court of Appeals have expressed
a preference for the Turpen formulation. See e.g., In re Marriage of
Huber, 723 N.E.2d 973 (Ind. Ct. App. 2000)(agreeing with trial court that
there may be circumstances outside the three Hendrickson factors that could
support granting custody to a nonparent); In re Paternity of L.K.T., 665
N.E.2d 910, 912 (Ind. Ct. App. 1996)(approving Turpen view that the child's
best interests is the preeminent concern, prevailing over other
considerations); Atteberry v. Atteberry, 597 N.E.2d 355, 357 (Ind. Ct. App.
1992)(declaring "[o]ur law clearly prefers to consider the best interests
of the child over the presumption that custody must be in a natural
parent"). We believe the Turpen approach is inadequate.
Despite the differences among Indiana's appellate court decisions
confronting child placement disputes between natural parents and other
persons, most of the cases generally recognize the important and strong
presumption that the child's best interests are ordinarily served by
placement in the custody of the natural parent. This presumption does
provide a measure of protection for the rights of the natural parent, but,
more importantly, it embodies innumerable social, psychological, cultural,
and biological considerations that significantly benefit the child and
serve the child's best interests. To resolve the dispute in the caselaw
regarding the nature and quantum of evidence required to overcome this
presumption, we hold that, before placing a child in the custody of a
person other than the natural parent, a trial court must be satisfied by
clear and convincing evidence that the best interests of the child require
such a placement. The trial court must be convinced that placement with a
person other than the natural parent represents a substantial and
significant advantage to the child. The presumption will not be overcome
merely because "a third party could provide the better things in life for
the child." Hendrickson, 161 Ind. App. at 396, 316 N.E.2d at 381. In a
proceeding to determine whether to place a child with a person other than
the natural parent, evidence establishing the natural parent's unfitness or
acquiescence, or demonstrating that a strong emotional bond has formed
between the child and the third person, would of course be important, but
the trial court is not limited to these criteria. The issue is not merely
the "fault" of the natural parent. Rather, it is whether the important and
strong presumption that a child’s interests are best served by placement
with the natural parent is clearly and convincingly overcome by evidence
proving that the child’s best interests are substantially and significantly
served by placement with another person. This determination falls within
the sound discretion of our trial courts, and their judgments must be
afforded deferential review. A generalized finding that a placement other
than with the natural parent is in a child's best interests, however, will
not be adequate to support such determination, and detailed and specific
findings are required. Huber, 723 N.E.2d at 976.
"In deference to the trial court's proximity to the issues, 'we
disturb the judgment only where there is no evidence supporting the
findings or the findings fail to support the judgment.'" Oil Supply Co.,
Inc. v. Hires Parts Serv., Inc., 726 N.E.2d 246, 248 (Ind. 2000)(quoting
Chidester v. City of Hobart, 631 N.E.2d 908, 910 (Ind. 1994)(citing
Indianapolis Convention & Visitors Ass'n v. Indianapolis Newspapers, Inc.,
577 N.E.2d 208 (Ind.1991))). We do not reweigh the evidence, but consider
only the evidence favorable to the trial court's judgment. Id. A
challenger thus labors under a heavy burden, and must show that the trial
court's findings are clearly erroneous. Ind.Trial Rule 52(A); Chidester,
631 N.E.2d at 909-10. Child custody determinations fall squarely within
the discretion of the trial court and will not be disturbed except for an
abuse of discretion. Clark v. Clark, 726 N.E.2d 854, 856 (Ind. Ct. App.
2000). Reversal is appropriate only if we find the trial court's decision
is against the logic and effect of the facts and circumstances before the
Court or the reasonable inferences drawn therefrom. Id. We also note
that, in reviewing a judgment requiring proof by clear and convincing
evidence, an appellate court may not impose its own view as to whether the
evidence is clear and convincing but must determine, by considering only
the probative evidence and reasonable inferences supporting the judgment
and without weighing evidence or assessing witness credibility, whether a
reasonable trier of fact could conclude that the judgment was established
by clear and convincing evidence. See Bud Wolf Chevrolet, Inc., v.
Robertson, 519 N.E.2d 135, 137 (Ind. 1988).
Basing his appeal on the Hendrickson three-step test, the father
argues that the presumption favoring placement with the natural parent was
not overcome because there was no evidence that he was an unfit parent nor
that he had long acquiesced in the children's placement with the
stepfather, nor that the children would be harmed if their relationship
with their stepfather were severed. As we explained above, however, the
trial court is not limited to the three Hendrickson factors.
The trial court's findings of fact and conclusions of law indicate
that it relied on many factors in determining that the stepfather should be
appointed guardian of the children: the estranged relationship between the
children and their father and his lack of any significant interaction with
them since his 1991 separation from their mother; the failure of the father
to stay current in paying his child support for the children; instances of
abuse before the separation and the father's violent confrontation with the
children's maternal aunt after the separation; the father's history of
excessive drinking that resulted in an arrest for driving while intoxicated
in 1998 and a citation for public intoxication after he moved to Houston,
Texas in 1996; the stepfather's role as the only psychological father the
children have known since December 1991; the children's connections with
the community and the proximity of extended family provided by placement
with the stepfather; the teenaged children's strong desire to remain in
Indiana with the stepfather; the recommendations of the CASA report and the
children's psychotherapist that it is in the best interests of the child to
remain in Indiana with the stepfather; and the stepfather's role as the
primary source of financial support for the children for the previous four
years.
These detailed findings provide ample support for the judgment of the
trial court in granting the stepfather's guardianship petition. The trial
court was clearly convinced that placement with the stepfather represents a
substantial and significant advantage to the children. According the trial
court proper deference, as we must, we decline to find its findings to be
clearly erroneous or its judgment to be against the logic and effect of the
evidence.
The judgment of the trial court appointing the stepfather, John Ray
Childress, Sr., as permanent guardian of B.H. and S.H. is affirmed.
BOEHM and RUCKER, JJ., concur. SHEPARD, C.J., concurs in result with
separate opinion in which SULLIVAN, J., concurs.
SHEPARD, Chief Justice, concurring in result.
At least since 1905, this Court has held that there is a strong
presumption that natural parents are the proper custodians of their own
children. In Gilmore v. Kitson, 165 Ind. 402, 74 N.E.1083 (1905), we
spelled out the rather dire circumstances under which this presumption
might be overcome such that someone other than the parent could obtain
custody: forfeiture by misconduct, abandonment, or long acquiescence in
custody by another. Id., 165 Ind. at 407, 74 N.E. at 1084.
The more recent expression of this rule appeared in Hendrickson v.
Binkley, 161 Ind. App. 388, 316 N.E.2d 376 (1974), which relied on Gilmore.
Judge Lowdermilk’s opinion in Hendrickson has been perhaps the cornerstone
of our law in this field over the last quarter century.
Until recently. As Justice Dickson points out, some very recent
decisions of the Court of Appeals hold that a court may strip a parent of
his or her role on simpler grounds. Such seemed to be the holding, for
example, in Attebury v. Attebury, 597 N.E.2d 355, 397 (Ind. Ct. App. 1992)
(“Our law clearly prefers to consider the best interests of the child over
the presumption that custody must be in a natural parent.”).
The apparent object of Justice Dickson’s opinion is to disapprove the
rather casual approach to taking children away from parents represented by
Attebury and other opinions in the Turpen line of cases. Instead, today’s
opinion says, courts may place a child with a non-parent only when a
rigorous standard is met. There is an “important and strong presumption”
in favor of the child’s natural parent. Slip op. at 6. A non-parent must
overcome this presumption by “clear and convincing evidence.” Id. The
fact that the non-parent might be better as a provider or presents evidence
that merely leads the trial judge to conclude that placement with the non-
parent is “in the best interests of the child” do not suffice to overcome
this presumption. Id. at 6-7.
I embrace the objective of requiring a rather considerable showing to
overcome the natural parent. I do not join today’s opinion, however,
because I think what the Court ends up saying about the required showing
actually weakens the parental presumption as it has usually been applied by
us and by the Court of Appeals over the last five generations.
The tests from Gilmore and Hendrickson, today’s opinion says, are
“important,” but hardly exhaustive, because “[t]he issue is not the ‘fault’
of the natural parent but whether the best interests of the child will be
substantially and significantly served by placement with another person.”
Slip op. at 7. This declaration seems to take us back to Turpen and
Attebury, the very line of cases the opinion seeks to disapprove.
Whether Gilmore/Hendrickson or Turpen is now the rule seems
unresolved. Today’s opinion counsels against the “rigid” three factors
from Gilmore and Hendrickson, suggesting that the father in this case might
well prevail if the trial court was limited to examining proof of those
three factors. Slip op. at 8. But, the opinion says, the father loses
anyway, because there are “many factors” other than the Gilmore three to
demonstrate that the stepfather should prevail.
As I see it, nearly all of these “many factors” fall within the
Gilmore formula. The Court cites abuse, violence, and excessive drinking,
all of which I see as evidence the father is “unfit” under Gilmore. It
cites failure to care for the children since 1991 and chronic failure to
pay support, called “abandonment” in Gilmore. And, it cites the
stepfather’s role as the only psychological father the children have known,
called “emotional interweaving” in Gilmore and Hendrickson.
Labeling all these facts as “factors” sufficient to warrant removing
a child as long as the trial judge is willing to say “clear and convincing”
actually makes it somewhat easier to remove a child than it has been under
Gilmore and Hendrickson. I think this is not what Justice Dickson intends,
and perhaps asking the question another way will highlight why. If the
evidence showed that the natural parent was a fit parent, that he/she was
caring regularly for the child, and that no third person was emotionally
central to the child’s life, what “non-Gilmore factors” would suffice to
remove the child from the natural parent? It is hard to imagine what such
factors would be.
I think the Gilmore/Hendrickson line of cases has served well
historically and serves well for the case before us. Today’s opinion
abandons that tether, in favor of a regime under which any old facts may
suffice.
Sullivan, J., concurs.