CHAPTER 14 GUARDIANSHIP/THIRD-PARTY CUSTODY

CHAPTER 14 GUARDIANSHIP/THIRD-PARTY CUSTODY Table of Contents I. DEFINITIONS A. Statutory Definitions 1. Guardian 2. Guardianship/Third-Party Custody.. 14-3 3. Minor. 14-3 B. Case Law. 14-3 II. SCOPE AND PURPOSE OF CHAPTER... 14-3 III. JURISDICTION AND VENUE A. Statutes Concerning Jurisdiction.. 14-4 B. Case Law Concerning Jurisdiction... 14-4 1. Dissolution/Paternity Custody and Guardianship Jurisdiction 14-5 2. Uniform Child Custody Jurisdiction Act... 14-10 3. CHINS Conflict With Guardianship Jurisdiction a. Statutory Obligation to Refer to Juvenile Court 14-10 b. Concurrent Jurisdiction.... 14-11 c. Practical Considerations to Resolve CHINS and Guardianship Jurisdiction 14-13 C. Continuing Jurisdiction Over Guardian and Guardian s Attorney... 14-13 D. Venue 1. Statutes IV. 2. Case Law.... 14-13 INITIATING A GUARDIANSHIP PROCEEDING A. Petition.. 14-14 1. Who May File Petition.. 14-14 2. Contents of Petition.. 14-14 B. Notice 1. Who Must Be Notified.. 14-15 2. Notifying Putative Fathers 3. Methods of Notification... 14-15 C. Case Law on Effect of Lack of Notice 14-15 D. Consents and Waiver of Notice E. Guardian ad Litem Appointment 1. Statutes 2. Guardian ad Litem Duties and Report... 14-16 3. Guardian ad Litem Fees V. TEMPORARY GUARDIANSHIP/THIRD-PARTY CUSTODY A. Statutory Requirements For Appointment 14-16 1. General Statute and Case Law Regarding Temporary Guardianship/Third- Party Custody...... 14-17 2. Temporary Guardianship Statute in Restricted Visitation Cases 3. Delegation by Power of Attorney... 14-18 B. Joinder With Other Proceedings C. Powers and Duties of Temporary Guardian/Third-Party Custodian 14-18 D. Case Law VI. APPOINTMENT OF GUARDIAN/THIRD-PARTY CUSTODIAN A. Legal Requirements 1. Statutes.... 14-19 2014 Supp. Ch. 14-1

2. Case Law.... 14-20 3. Considerations For Selection of Guardian... 14-21 4. Investigation by DCS or Office of the Secretary of Family and Social Services. 14-22 B. Limited Guardianship 1. Statutes 2. Case Law C. Guardianship/Third-Party Custody Proceedings With Parental Consent and Waiver D. Guardianship/Third-Party Custody Proceedings Without Parental Consent and Waiver 1. Appointment of Counsel for Non-Consenting Parents 2. Case Law on Standard of Proof and Burden of Proof..... 14-23 3. Statute and Case Law Regarding Rebuttable Presumption for Parental Custody.. 14-24 4. Visitation For Parents in Guardianship/Third-Party Custodianship Cases... 14-32 E. Appellate Review Standard... 14-32 VII. RESPONSIBILITITES AND DUTIES OF MINOR S GUARDIAN/THIRD-PARTY CUSTODIAN A. Statutes 1. Required Powers and Duties 14-33 2. Permissive Powers and Duties 3. Delegation of Powers and Duties. 14-34 4. Compensation.... 14-34 B. Case Law 1. Generally 14-35 2. Sterilization C. Local Rules and Practices Concerning Minor s Property VIII. RESIGNATION, REMOVAL AND APPOINTMENT OF SUCCESSOR GUARDIAN A. Resignation B. Removal of Guardian 1. Statutory Reasons For Removal 2. Initiating a Removal Proceeding 3. Emergency Suspension. 14-35 4. Case Law Concerning Removal of Guardian... 14-35 C. Appointment of Successor Guardian 1. Statutory Authority 2. Case Law IX. TERMINATION OF GUARDIANSHIP/THIRD-PARTY CUSTODIANSHIP A. Statutory Provisions.... 14-35 B. Initiating a Petition For Termination of Guardianship/Third-Party Custodianship... 14-37 C. Burden of Proof... 14-37 D. Case Law.... 14-38 E. Appellate Review Standard.... 14-46 X. ASSISTED GUARDIANSHIP FOR CHINS... 14-46 A. Child Eligibility B. Guardian s Eligibility C. County Office of Family and Children Responsibilities and Duties D. Monetary Payments to Guardians E. Guardian s Responsibilities and Duties 1. Cooperation With Office of Family and Children and Title IV-D Program 2. Health Insurance 3. Notification of Additional Proceedings F. Terminating Assisted Guardianship G. Local Subsidized Guardianship For CHINS 2014 Supp. Ch. 14-2

I. DEFINITIONS I. A. Statutory Definitions I. A. 1. Guardian CHAPTER 14 GUARDIANSHIP/THIRD-PARTY CUSTODY I. A. 2. Guardianship/Third-Party Custody The 2001 CHINS Deskbook noted although there is no formal definition of guardianship in the Probate or Juvenile Code, there is a legal definition of guardianship provided by the Indiana Adoption and Safe Families Act. The correct citation for that statue is IC 31-34-21-7.5(c)(1)(E). Third-party custody does not have a statutory definition. It is used herein to refer to situations, other than guardianships, in which a child is legally placed in the custody of a person(s) who is not the child s parent. Guardianships are actually third-party custodianships created pursuant to, and governed by Title 29. I. A. 3. Minor The 2001 Chins Deskbook noted that guardianship terminates by operation of law according to IC 29-3-12-1 when the minor reaches the age of eighteen years. Two newly added statutes, discussed below, provide exceptions to IC 29-3-12-1. IC 29-3-12-6(a) provides that if a protected person is a minor who has been adjudicated an incapacitated person, the court may not terminate the guardianship when the minor turns eighteen years old. IC 29-2-12-6(b) provides that if a minor is a protected person who is also a recipient or beneficiary of financial assistance provided by DCS through a guardianship described in IC 31-9-2-17.8(1)(E), the court may not terminate the guardianship when the minor turns eighteen years old. IC 29-3-12-7 applies to the guardianship of a minor who has not been adjudicated an incapacitated person. IC 29-2-12-7(b) provides that a protected person who is at least seventeen years old and the guardian of the protected person may jointly petition the court to extend the duration of the guardianship beyond the date on which the protected person turns eighteen years old earlier of the following: (1) a termination date, if any, set forth in the petition; or (2) the date the protected person attains twenty-two (22) years of age. IC 29-2-12-7(c) requires that this petition must be verified. IC 29-2-12-7(d) states that the court, after notice and hearing, may extend a guardianship under this section if the court finds that extending the guardianship is in the best interests of the protected person. This extension of a guardianship does not place the protected person under a legal disability. I. B. Case Law See this Chapter at IX., this Supplement, for a discussion of the case law currently applicable to the termination of guardianship and third-party custody. II. SCOPE AND PURPOSE OF CHAPTER In 2005, 470 I.A.C. 3-10.5-4 was transferred without changes to 465 I.A.C. 2-8-4. The 2001 CHINS Deskbook noted that knowledge of guardianship law is essential to CHINS practitioners because the 2014 Supp. Ch. 14-3

appointment of a guardian is a permanency option. The correct citation for this statute is IC 31-34-21-7.5(c)(1)(E). III. JURISDICTION AND VENUE III. A. Statutes Concerning Jurisdiction IC 31-30-1-1 and IC 29-3-2-1 were modified to give the juvenile court exclusive original jurisdiction (1) in guardianship of the person proceedings for a child adjudicated as a CHINS who is the subject of (a) an approved permanency plan providing for the appointment of a guardian of the person and (b) a pending CHINS proceeding; and (2) over matters related to those guardians and guardianships. See this Chapter at III.B.3.b. for a more detailed discussion. Indiana s Uniform Child Custody Jurisdiction Law, (UCCJL), IC 31-17-3-1 to -25, was repealed effective August 15, 2007, and supplanted by the Uniform Child Custody Jurisdiction Act, (UCCJA ) at IC 31-21. Regarding this change and interstate subject matter jurisdiction generally, see Chapter 3 at II.H.6. and 7., CHINS Deskbook 2001 and this Supplement. III. B. Case Law Concerning Jurisdiction In In Re Guardianship S.M., 918 N.E.2d 746, 749-50 (Ind. Ct. App. 2009), the Court reversed and remanded the trial court s order appointing Aunt permanent guardian of two children. The children s parents had divorced in Vermillion County, Illinois (Illinois court), in 2002. The Illinois court grant custody of the children to Father, but in 2007, the Illinois court modified custody to Mother, who lived in Indiana. The children moved into Aunt s home when Mother became ill with cancer. Mother died in November 2008, when the children were ages ten and eight. Two days after Mother s death, Aunt petitioned for and was granted an emergency temporary guardianship of the children by Madison Superior Court (trial court) in Indiana. The trial court held an evidentiary hearing in January 2009. Father appeared at the January hearing and informed the trial court that the parents divorce and all proceedings regarding the children had been handled in the Illinois court. The trial court appointed Aunt the children s permanent guardian and granted parenting time to Father, who continued to reside in Illinois. The trial court also said that the Illinois court could determine jurisdiction, but the purpose of the January 2009 guardianship hearing was to determine the children s best interests until a jurisdiction determination was made. The Court determined that the trial court lacked subject matter jurisdiction to modify the Illinois court s child custody order; therefore, its order appointing Aunt the children s permanent guardian was void ab initio. The Court discussed IC 31-21-5-3, which controls whether an Indiana trial court may modify another state s existing child custody order. It states that, except as otherwise provided, an Indiana court may not modify a child custody determination made by a court of another state unless: (1) the court of the other state determines that: (A) it no longer has exclusive, continuing jurisdiction under IC 31-21-5-8; or (2) an Indiana court or a court of the other state determines that: (A) the child; (B) the child s parents; and (C) any person acting as a parent; do not presently reside in the other state. The Court found that IC 31-21-5-3(1) did not apply because neither party suggested that the Illinois court had determined that it lacked jurisdiction or that Indiana would be a more convenient forum. The Court found that IC 31-21-5-3(2) did not apply because it requires a determination that the parents and others do not presently reside in the other state and it was undisputed that Father resides in Illinois. The Court opined that Father was entitled to custody of the children as a matter of law upon Mother s death. In In Re Guardianship of M.E.T., 888 N.E.2d 197, 198-99 (Ind. Ct. App. 2008), an adult guardianship case, the Court held that the trial court did not have subject matter jurisdiction to determine the guardianship of a nonresident of Indiana. The Court based its finding on IC 29-3-2-2014 Supp. Ch. 14-4

1(a)(1) which provides that the probate court has jurisdiction of [t]he business affairs, physical person, and property of every incapacitated person and minor residing in Indiana, and IC 29-3-2-5 which provides that [t]he residence of a person shall be determined by actual presence rather than technical domicile. In In Re Guardianship of K.T., 743 N.E.2d 348 (Ind. Ct. App. 2001) the Court affirmed the modification of the former guardians visitation with the child, made by the trial court which had lost jurisdiction when the guardianship was terminated. The former guardians had waived any objection to the trial court s exercise of jurisdiction over the case by failing to raise the issue at the earliest available opportunity, either by filing a motion to correct errors or initiating an appeal with respect to the trial court s November 1999 order granting them visitation upon the termination of the guardianship. See also In Re Guardianship of J.E.M., 870 N.E.2d 517 (Ind. Ct. App. 2007) (finding that any right to visitation with child which Maternal Grandmother may have is provided by Grandparent Visitation Act (GVA), IC 31-17-5, and, although her visitation was not originally granted in accordance with GVA, inasmuch as no party objected to original order, it cannot now be challenged on basis that it was not issued in compliance with the GVA). III. B. 1. Dissolution/Paternity Custody and Guardianship Jurisdiction In In Re Adoption of L.T., 9 N.E.3d 172, 176-77 (Ind. Ct. App. 2014), the Court reversed the trial court s decision which dismissed the guardianship for lack of subject matter jurisdiction and granted Father immediate custody of the child. The Court remanded the case with instructions to conduct a hearing in the best interests of the child. The Court held that (1) although Hamilton County Superior Court did not lack subject matter jurisdiction, the issue was improper venue; (2) the remedy for improper venue was to transfer the case to the correct venue, which was Marion County; (3) upon transfer, Marion Superior Court, Probate Division, was required to complete the proceedings that had commenced in Hamilton County. See this Chapter at III.D.2. and IX.D for further discussion. In Fry v. Fry, 8 N.E.3d 209, 215-17 (Ind. Ct. App. 2014), the Court affirmed the trial court s order which modified the custody of Mother s daughter (Daughter) to Mother s former Husband. The Court opined that a trial court adjudicating a dissolution case may award custody of a child to a natural or adoptive parent of a child or to a de facto custodian (emphasis in opinion). The Court concluded that the trial court had jurisdiction and committed no legal error. Mother married Husband when Daughter was three years old. Husband was not the father of Daughter. When Mother and Husband divorced, the trial court awarded joint legal custody of the parties son of the marriage (Son), with Mother having primary physical custody and Husband having reasonable, liberal, and flexible parenting time with Son pursuant to the parties settlement agreement. In addition, the parties agreement included that all of Husband s parenting time rights may include Daughter at Husband s option. In the ensuing years, Husband included Daughter when he exercised parenting time with Son whenever possible. About seven years after the divorce, Husband filed an emergency petition for modification of custody and parenting time, in which he requested physical custody of both Son and Daughter because Mother s diagnosis of Huntington s disease had progressively diminished her ability to care for the children physically, mentally, and emotionally. The trial court conducted a hearing on the motion and also held an in camera interview with Daughter. Among the evidence submitted to the court was a letter from Mother s doctor stating that Mother had abnormal cognitive function and poor judgment and was unable to parent her children safely and effectively, her condition was progressive and untreatable, and no appreciable improvement could be expected. The 2014 Supp. Ch. 14-5

trial court found that Husband was not Daughter s biological or legal father, but he had acted in the capacity of her father with Mother s encouragement and consent for many years, and the dissolution decree granted him parenting time with her. The trial court modified physical custody of both children to Husband and ordered supervised parenting time for Mother. Nine months after the trial court s order was issued, Mother filed a Trial Rule 60 motion seeking to declare the court s orders relating to Daughter void because Daughter is not a child of the marriage and the trial court had no jurisdiction to award custody of Daughter to Husband. The trial court denied Mother s motion, and she appealed. The Court, quoting K.S. v. State, 849 N.E.2d 538, 540 (Ind. 2006), observed that the Indiana Supreme Court has explained, [l]ike the rest of the nation s courts, Indiana trial courts possess two kinds of jurisdiction. Subject matter jurisdiction is the power to hear and determine cases of the general class to which any particular proceeding belongs. Personal jurisdiction requires that appropriate process be effected over the parties. The Fry Court opined that if a claim falls within the general scope of authority conferred on a court by the Indiana Constitution or statute, the court has subject matter jurisdiction over that claim. The Court said that courts of general jurisdiction are presumed to have subject matter jurisdiction. Quoting L.M.A. v. M.L.A., 755 N.E.2d 1172, 1175 (Ind. Ct. App. 2001), the Court noted that Title 31 of the Indiana Code grants trial courts the incidental specific authority to decide child custody matters within the general grant of subject matter jurisdiction to hear actions for dissolution and child support. The Fry Court opined that the trial court not only has subject matter jurisdiction over a child custody determination for a child of the marriage, but also over a child custody determination involving a third party outside the marriage. Noting that Mother had raised no issue over the trial court s personal jurisdiction over the parties, the Court concluded that the trial court therefore possessed the two forms of jurisdiction required to render a valid judgment. The Court opined that Mother s claim was not a true jurisdictional one, and the judgment was not void for lack of jurisdiction. The Court disagreed for several reasons with Mother s argument that she was otherwise entitled to relief because Husband had no legal right to pursue custody of Daughter and the trial court was therefore not permitted to hear the issue. The Court stated the following reasons for its disagreement with Mother s argument: (1) IC 31-17-2-25 allows for emergency placement of a child with a person other than a parent; therefore, Husband had a legal right pursuant to this statute to seek such relief; (2) a trial court adjudicating a dissolution may award custody to a de facto custodian, citing In Re Custody of G.J., 796 N.E.2d 756, 762 (Ind. Ct. App. 2003), trans. denied, and IC 31-9-2-35.5; (3) Husband was entitled to consideration in custody matters as a de facto custodian; (4) instead of appealing the trial court s order which gave emergency custody to Husband as erroneous, Mother acquiesced in the custody order, seeking only to exercise parenting time as the court ordered. In In Re Marriage of Huss, 888 N.E.2d 1238, 1241-44, 1248, n.3 (Ind. 2008), the Supreme Court affirmed the dissolution court s award to Husband of the custody of all four of Wife s children, including the youngest child, who was not the biological child of Husband. During the first nine years of their marriage, Husband and Wife had three children. They then separated for eight months, but subsequently reconciled when Wife was pregnant with another man s child. When the fourth child was born, Wife listed Husband as the father on the birth certificate and gave the child Husband s last name. Four years later, Husband and Wife sought dissolution of their marriage in the Adams Circuit Court (hereinafter dissolution court). In the dissolution petition, Husband asserted that there were four unemancipated children born of the marriage, named each of them, and expressly requested that a provision be made with respect to the custody and support of these children. Mother counter-petitioned and petition identified the same four children as born to this marriage. Each party asked for 2014 Supp. Ch. 14-6

a provisional order granting them custody of the children. During the pendency of the dissolution proceeding, Mother filed for, and received a judgment in Wells Circuit Court (hereinafter paternity court) establishing paternity of the fourth child in a man other than Husband and awarding her custody of the fourth child. The dissolution court granted the divorce and, among other things, awarded custody of all four children to Husband. The Huss Court held: (1) that the dissolution court did not err by failing to give effect to the intervening paternity judgment by the paternity court, where the subject matter of child custody of all four children, including the child who was the subject of the paternity judgment, was before the dissolution court from the start of the dissolution action; (2) that the dissolution court had jurisdiction over the child of whom Husband was not the biological father; and (3) that the dissolution court s authority to determine custody of all four children, including the child of whom Husband was not the biological father, was not impaired by the paternity statute s general presumption of sole custody for the biological mother; even if Mother were to be considered sole custodian of the child by reason of the paternity judgment or the operation of the paternity statute, the dissolution court in this case would be authorized to consider whether to make a superseding award of child custody to Husband as a nonbiological parent of the child. As to the third-party custody issue, the Huss Court found that the evidence was not insufficient to support the dissolution trial court s award of custody to Husband, a nonparent third party, rather than to Mother as the child s biological mother. In making this determination, the Court noted the following facts: (1) during the marriage, Husband was at home evenings and spent time helping the children with their homework; (2) Husband prepared meals and shared doing the laundry and shopping with Mother; (3) during the almost one year period following the provisional order granting him custody, Husband was primary caretaker for all four children; (4) Husband fully accepted the subject child as his own, and treated all four children equally; (5) Husband regularly made several trips to school each day to facilitate the children s participation in extracurricular activities; (6) there was considerable testimony regarding the close relationship between the four children and both parties extended families who lived nearby; (7) Maternal Grandmother s testimony that what the children needed was stability, and they were getting that from being with Husband; (8) witnesses testimony about Mother s plans to move with the subject child to Louisiana, and how this would negatively impact the child s stability and family relationships; and (9) the dissolution trial court interviewed the children in chambers. The Court also observed that it could not reweigh the evidence as Mother urged. As to the dissolution court s conclusion that the husband was and had been a de facto custodian of the child, the Court concluded that, inasmuch as Mother did not assert any appellate claim that such de facto status was a necessary prerequisite to the custody award, the correctness of this finding was not a determinative issue. The Court did observe in a footnote, however, that there is an unresolved issue regarding whether de facto custodian status is a necessary prerequisite in a dissolution proceeding to a spouse receiving custody of a child for whom the spouse is not the biological parent. The Court (1) listed non-dissolution cases which have held that a party who is not a natural parent need not allege or claim status as a de facto custodian in order to pursue custody; (2) noted that dicta in Custody of G.J., 796 N.E.2d 756, 762, (Ind. Ct. App. 2003) suggested that, in a dissolution proceeding, the award of custody of a child to a nonbiological parent may be restricted to a person who qualifies as a de facto custodian; and (3) this conclusion is not expressly stated in the language of the de facto custody statutes. In Christian v. Durm, 866 N.E.2d 826, 829 (Ind. Ct. App. 2007), trans. denied, the Court held that the trial court had not erred by proceeding with the merits of the third party 2014 Supp. Ch. 14-7

custodian s claim despite the dismissal of the underlying dissolution petition and affirmed the trial court s award of custody of the child to the custodian rather than the parents. Father filed a petition to dissolve the marriage and requested custody of the only child of the marriage who was seven months old. Four days earlier, Father had left the child in the custodian s around-the-clock care. He told the custodian he needed to look for work and he did not want to leave the child in his home with ants all over the floor. The child weighed only thirteen pounds, exhibited a blank stare, did not attempt to crawl, stank, and suffered from a severe diaper rash that was raw and red. Father signed a document giving the custodian guardianship of the child for the purpose of seeking medical attention. Father told the custodian to feed the child 2% milk and that the child did not like water. After being fed infant formula, baby foods, and cereal, the child began to thrive, gained approximately six pounds in six weeks, and began to smile, laugh and crawl. Two and one-half months after Father left the child with her, the custodian petitioned to intervene in the dissolution action and sought custody of the child. The trial court scheduled a hearing on the custody petition before the occurrence of which, Father and Mother each filed motions advising that they had reconciled, and requesting dismissal of the dissolution petition. The trial court dismissed the dissolution petition but held the custody hearing as scheduled. At the hearing, after presentation of the custodian s witnesses, Father and Mother moved for dismissal of the custody petition on grounds that custody was not properly at issue because the dissolution petition had been dismissed. The trial court denied the motion and granted custody of the child to the third party custodian. On appeal, Father and Mother asserted that the trial court lacked jurisdiction to hear the custody petition because the petition for marital dissolution had been dismissed. The Court noted: The question of subject matter jurisdiction entails a determination of whether a court has jurisdiction over the general class of actions to which a particular case belongs, and personal jurisdiction requires submission of the individual parties to the authority of the court. K.S. v. State, 849 N.E.2d 538, 542 (Ind. 2006). Here, according to the Court, both subject matter and personal jurisdiction were satisfied, thus the issue was not jurisdictional, but rather whether the trial court committed legal error by refusing to dismiss the intervenor s claim after the presentation of her case because the underlying claim had been voluntarily dismissed. The Court held that, as an intervenor, the custodian enjoyed equal standing with the other parties, Father and Mother, and she had a pending claim to pursue. In In Re Custody of G.J., 796 N.E.2d 756, 761-64 (Ind. Ct. App. 2003), trans. denied, the Court reversed and remanded the trial court s dismissal of the paternal uncle s petition seeking custody of the child. The mother and father were married when the child was born. They later filed for divorce, but before the dissolution proceedings were final, the father died. Within a matter of weeks of the father s death, the mother remarried and brought the child into that marriage. The paternal uncle filed, in the dissolution court, a Petition for Custody of the child which asserted that the paternal uncle was entitled to file the petition pursuant to IC 31-17-2-3(2). The petition alleged that the mother s new husband was a convicted child molester who also collected child pornography; that a court order in the dissolution action had prohibited the mother from allowing the child to have any contact with the new husband; and that in the past the mother had lost custody of other children to DCS. The mother moved to dismiss the uncle s petition for lack of standing to pursue custody in this cause. The trial court granted the motion, concluding that IC 31-17-2-3 was relative only to dissolutions of marriage, and suggesting that the uncle would properly file under the guardianship statute. The paternal uncle appealed. 2014 Supp. Ch. 14-8

On review, the G.J. Court held that IC 31-17-2-3(2) means that any person other than a parent may seek custody of a child by initiating an independent cause of action for custody that is not incidental to a marital dissolution, legal separation, or child support action. The Court opined that no Indiana appellate court had previously, directly addressed or answered the question presented in this case: [W]hat is the meaning, relevance, and scope of subsection (2) of IC 31-17-2-3. The Court noted its recent decision in Nunn v. Nunn, 791 N.E.2d 779, 784 (Ind. Ct. App. 2003), in which it relied on the de facto custodian amendments to hold that the trial court did have jurisdiction to determine custody orders concerning [the child] even though she was not a child of the marriage. Here, the Court disagreed with the mother s contention that a party must claim to be a de facto custodian in order to pursue custody of a child under IC 31-17-2-3 in an independent cause of action. The Court arrived at its conclusion regarding the statute s meaning through statutory construction as well as its determination that such a conclusion was consistent with Indiana public policy. IC 31-17-2-3 provides: A child custody proceeding is commenced in the court by: (1) a parent by filing a petition under IC 31-15-2-4 [governing commencement of dissolution actions], IC 31-15-3-4 [governing commencement of legal separation actions], or IC 31-16-2-3 [governing commencement of child support actions]; or (2) a person other than a parent by filing a petition seeking a determination of custody of the child. The Court opined that IC 31-17-2-3 appeared unambiguous on its face, but was rendered ambiguous by other parts of Title 31 and cases. IC 31-9-2-13 defines Child, for the purposes of IC 31-17, [as] a child or children of both parties to the marriage. Indiana courts have construed the predecessor to this section in conjunction with the predecessor to IC 31-17-2-3, as meaning that a court in a dissolution action had no jurisdiction to award custody of a child to one who is not the child s parent. See Russell v. Russell, 682 N.E.2d 513, 515-516 (Ind. 1997). The Court observed that the placement of Section 31-17-2-3(2) in the child custody article, with no mention of marital dissolution in subsection (2), suggested that it is relevant not just to dissolution proceedings. The Court also observed that a child with respect to a person other than a parent is not a child as defined in IC 31-9-2-13(a) or Russell. But, if a trial court lacked jurisdiction at all times to award custody to someone other than a parent under Chapter 31-17-2, then Section 31-17-2-3(2) would appear to be entirely meaningless. Such a construction of the statute would be absurd and would effectively amount to ignoring the existence and plain language of Section 31-17-2-3(2). The G.J. Court opined that its conclusion with regard to the meaning of IC 31-17-2-3(2) did not conflict with Russell which did not address the predecessor to IC 31-17-2-3(2) and solely dealt with the child custody proceeding that was incidental to a marital dissolution action. It further observed that it would seem to make more sense to file an action that is truly a child custody action under the child custody statutes set forth in the family law code than to seek a guardianship under the probate code. Accordingly, the Court concluded that the uncle had standing to file a direct action for custody of the child under IC 31-17-2-3(2). See also Nunn v. Nunn, 791 N.E.2d 779 (Ind. Ct. App. 2003) (dissolution trial court vested with jurisdiction to consider awarding custody of stepdaughter to Husband despite DNA results excluding Husband as father, because of inclusion in custody statutes of IC 31-14-13-2.5 and IC 31-17-2-8.5, regarding consideration of de facto custodian factors). 2014 Supp. Ch. 14-9

III. B. 2. Uniform Child Custody Jurisdiction Act and Guardianship/Third-Party Custody Jurisdiction Indiana s Uniform Child Custody Jurisdiction Law, (UCCJL), IC 31-17-3-1 to -25, was repealed effective August 15, 2007, and supplanted by the Uniform Child Custody Jurisdiction Act (UCCJA ), at IC 31-21. Regarding this change and interstate subject matter jurisdiction generally, see Chapter 3 at II.H.6 and 7, CHINS Deskbook 2001 and this Supplement. In Meyer v. Meyer, 756 N.E.2d 1049 (Ind. Ct. App. 2001), the Court affirmed the trial court s dismissal of the stepfather s petition for custody of his ex-wife s child who had been born prior to their marriage. The stepfather filed the petition in the trial court that had dissolved their marriage. Neither party had sought custody of the child in the divorce pleadings, and the final order had not addressed her custody. In March 1999, the court had ordered dissolution of the marriage and awarded custody of the two children of the marriage to the husband (stepfather). In mid-1999, the ex-wife and the child moved to Rhode Island and the stepfather remained in Indiana with the two children of the marriage. In January 2000, the stepfather filed his petition for custody. The Appeals Court held that the petition for custody was not a continuation of the previous dissolution action because the child whose custody the stepfather was seeking was not a child of the marriage, and her custody had not been previously litigated in Indiana or anywhere else. Further, the Court held that Indiana courts did not have jurisdiction over the custody matter pursuant to the Uniform Child Custody Jurisdiction Act (UCCJA, recodified at IC 31-21). In its analysis, the Court explained that Indiana was not the child s home state so Indiana did not have jurisdiction pursuant to IC 31-17-3-3(1)(A). Further, the Court found that there was not substantial evidence concerning the child s present or future care, protection, training, and personal relationships available in Indiana such that IC 31-17-3-3(2) would provide the needed jurisdiction. The Court in In Re Guardianship of C.M.W., 755 N.E.2d 644, 647-49 (Ind. Ct. App. 2001) affirmed the trial court s order dismissing the grandfather s petition for guardianship. The Court agreed that Indiana courts did not have jurisdiction under the guardianship statute (IC 29-3-2-1(a)(1)) because the child did not reside in Indiana. Further, jurisdiction was not found pursuant to the Uniform Child Custody Jurisdiction Act (UCCJA) (recodified at IC 31-21) because Indiana was not the child s home state and Indiana did not have a significant connection to this controversy to establish personal and subject matter jurisdiction. III. B. 3. CHINS Conflict With Guardianship Jurisdiction III. B. 3. a. Statutory Obligation to Refer to Juvenile Court IC 31-30-1-6(b)(2) was amended to provide that if the allegations in a guardianship petition or allegations at guardianship proceedings indicate that the child for whom the guardianship is requested meets the definition of a CHINS, the probate court shall: (1) send the petition for guardianship or the record of guardianship to DCS; and (2) direct DCS to initiate an assessment to determine whether the child is a CHINS. IC 31-30-1-6(d) was added, and it provides that if a juvenile court (1) issues an order establishing or modifying a guardianship of a minor; and (2) requests additional proceedings regarding the guardianship of the minor; the probate court that retains jurisdiction over the case or another appropriate court shall conduct additional proceedings. 2014 Supp. Ch. 14-10

III. B. 3. b. Concurrent Jurisdiction The concerns regarding concurrent jurisdiction expressed in this section of the CHINS Deskbook 2001 were alleviated by legislation passed in 2001, subsequent to publication of the Deskbook. IC 31-30-1-1(10) was added to give the juvenile court exclusive original jurisdiction in: (10) Guardianship of the person proceedings for a child: (A) who has been adjudicated [a CHINS]; (B) for whom a juvenile court has approved a permanency plan under IC 31-34-21-7 that provides for the appointment of a guardian of the person; and (C) who is the subject of a pending [CHINS] proceeding under IC 31-34. IC 31-30-1-1(12) was added, which gives the juvenile court exclusive original jurisdiction in proceedings under the interstate compact for juveniles (IC 11-13-4.5-1.5). IC 31-30-1-1(13) was also added, giving the juvenile court exclusive original jurisdiction in proceedings under IC 31-28-5.8 (collaborative care). The amendments also modified IC 29-3-2-1, IC 31-30-2-1, IC 31-34-21-4, IC 31-34-21-7.7, and IC 31-35-2-6.5, consistent with this change of jurisdiction in IC 31-30-1-1(10): IC 29-3-2-1(b) was amended by adding the phrase with respect to an individual who is not an adult (as defined in IC 29-3.5-1-2(1)). IC 29-3-2-1(c)(2) was added to provide that a juvenile court has exclusive original jurisdiction over (2) Matters related to guardians of the person and guardianships of the person described in IC 31-30-1-1(10). IC 31-30-2-1(d), (e), (f), and (g) were added and amended to provide: (d) The jurisdiction of the juvenile court over a proceeding described in IC 31-30-1-1(10) for a guardianship of the person continues until the earlier of the date that: (1) the juvenile court terminates the guardianship of the person; or (2) the child becomes: (A) nineteen (19) years of age, if a child who is at least eighteen (18) years of age is a full-time student in a secondary school or the equivalent level of vocational or career and technical education; or (B) eighteen (18) years of age, if clause (A) does not apply. If the guardianship of the person continues after the child becomes the age specified in subdivision (2), the juvenile court shall transfer the guardianship of the person proceedings to a court having probate jurisdiction in the county in which the guardian of the person resides. If the juvenile court has both juvenile and probate jurisdiction, the juvenile court may transfer the guardianship of the person proceeding to the probate docket of the court. (e) The jurisdiction of the juvenile court to enter, modify, or enforce a support order under IC 31-40-1-5 continues during the time that the court retains jurisdiction over a guardianship of the person proceeding described in IC 31-30-1-1(10). (f) At any time, a juvenile court may, with the consent of a probate court, transfer to the probate court guardianship of the person proceedings and any related support order initiated in the juvenile court. 2014 Supp. Ch. 14-11

(g) A juvenile court may retain jurisdiction over an older youth, as defined in IC 31-28-5.8-4, who is a recipient or beneficiary of: (1) kinship guardianship assistance under Title IV-E of the federal Social Security Act (42 U.S.C. 673), as amended; or (2) other financial assistance provided to or for the benefit of a child who: (A) was previously adjudicated as [CHINS] or delinquent child; (B) is a protected person under a legal guardianship if IC 29-3-8-9(f) applies; and (C) is approved for assistance under a rule or published policy of DCS. IC 31-34-21-7.7 was added and amended to provide: (a) If the juvenile court approves a permanency plan under section 7 of this chapter that provides for the appointment of a guardian for a child, the juvenile court may appoint a guardian of the person and administer a guardianship for the child under IC 29-3. (b) If a guardianship of the person proceeding for the child is pending in a probate court, the probate court shall transfer the proceeding to the juvenile court. (c) In creating a guardianship of a minor, a probate or juvenile court may include in an order the requirements and terms and conditions described in IC 29-3-8-9(a). (d) If the juvenile court closes a [CHINS] case after creating a guardianship, the juvenile court order creating the guardianship survives the closure of the [CHINS] case. (e) If the juvenile court closes the [CHINS] case after creating a guardianship, the probate court may assume or reassume jurisdiction of the guardianship and take further action as necessary. IC 31-34-21-4(a)(2) was modified to require that notice be sent to An attorney who has entered an appearance on behalf of the child s parent, guardian, or custodian. IC 31-35-2-6.5(c)(1) also provides that a child s custodian must receive notice of a hearing on a petition or motion filed under IC 31-35. IC 31-35-2-6.5(c)(2) was modified to require that notice be sent to An attorney who has entered an appearance on behalf of the child s parent, guardian, or custodian. IC 31-35-2-6.5(c)(4) provides that any other person who: (A) [DCS] has knowledge is currently providing care for the child; and (B) is not required to be licensed under IC 12-17.2 or IC 31-27 to provide care for the child must also receive notice of hearing on a petition or motion filed under IC 31-35. Other persons entitled to notice are Any other suitable relative or person who [DCS] knows has had a significant or caretaking relationship to the child. IC 31-35-2-6.5(c)(5). This could include present or past guardians. However, IC 31-35-2-6.5(g) provides that A person described in subsection (c)(2) through (c)(5) or subsection (d) does not become a party to a 2014 Supp. Ch. 14-12

proceeding under this chapter as the result of the person's right to notice and the opportunity to be heard under this section. III. B. 3. c. Practical Considerations to Resolve CHINS and Guardianship Jurisdiction IC 29-3-3-4 was amended and notice requirements for temporary guardianship have been added. For further discussion, see this Chapter at V. III. C. Continuing Jurisdiction Over Guardian and Guardian s Attorney Problems in CHINS and Guardianship jurisdiction were alleviated by 2001 legislation after publication of the CHINS Deskbook 2001. See this Chapter at III.B.3.b., this Supplement. III. D. Venue III. D. 1. Statutes III. D. 2. Case Law In In Re Adoption of L.T., 9 N.E.3d 172, 177-9 (Ind. Ct. App. 2014), the Court reversed the Marion Superior Court, Probate Division s order dismissing or terminating Maternal Grandparents guardianship of their three-year-old granddaughter for lack of subject matter jurisdiction and granting immediate custody of the child to adjudicated Father, her only living parent. The Court remanded with instructions to conduct a hearing on the best interests of the child. Mother had been granted custody of the child in the Marion Circuit Court, Paternity Division, and Father was granted parenting time and ordered to pay child support. After Mother s death, Maternal Grandparents filed a petition in the Hamilton Superior Court seeking guardianship of the child. Attached to the petition was a waiver of notice of hearing and consent to the guardianship, purportedly bearing Father s notarized signature. Two months later, Father filed his motion to dismiss the guardianship in Hamilton Superior Court due to lack of subject matter and personal jurisdiction. The Marion Circuit Court, Paternity Division, then entered an order to transfer the guardianship matter and consolidate it with paternity proceedings in Marion Circuit Court; thereafter, the Hamilton Superior Court entered an order of transfer. Meanwhile, Maternal Grandparents had filed a petition to adopt the child in the Marion Superior Court, Probate Division. The Marion Circuit Court transferred the matter to the Marion Superior Court, Probate Division; all proceedings were then consolidated in the probate court. After hearing argument, the Marion Superior Court, Probate Division, issued its order providing that the Hamilton Superior Court lacked subject matter jurisdiction to enter any guardianship orders, terminated the guardianship, and ordered the child to be return to her father immediately. The L.T. Court observed that Father was not litigating custody in Marion County when the authority of the Hamilton Superior Court was invoked, as he had relinquished his right to physical custody of the child by signing a consent to guardianship. The Court opined that the instant controversy distilled to the consequences of improper venue, not subject matter jurisdiction. The Court, citing State Ex Rel. Knowles v. Elkhart Circuit Court, 268 N.E.2d 79, 80 (Ind. 1971), said that the filing of a case in a county in which venue does not properly reside does not divest the trial court of subject matter jurisdiction. The L.T. Court looked at IC 29-3-2-2(c), which directs that a guardianship proceeding that was commenced in the wrong county may be transferred by the court in which the matter was filed to another court in Indiana, upon which the receiving court shall complete the proceeding as if it were originally commenced in that court (emphasis in opinion). The Court determined that the use of the word complete in the statute meant a continuation of the proceedings, and that the receiving court was to continue from the current status of proceedings in the sending court. 2014 Supp. Ch. 14-13

The Court also noted that Indiana Trial Rule 75(B) also provides that whenever a proceeding is filed in an improper venue, the action is not to be dismissed, but instead, should be transferred to the correct venue and court. The Court opined that to decide otherwise would result in courts not giving proper effect to existing valid orders, allowing an end run around previous lawful orders. Since Marion Superior Court, Probate Division, was the receiving court and Hamilton Superior Court was the transferring court, the Marion Superior Court, Probate Division was required to complete the proceedings which had commenced in Hamilton Superior Court. The Marion Superior Court, Probate Division erred in granting relief from the guardianship order on the grounds that the order was void for lack of subject matter jurisdiction. See this Chapter at III.B.1 and IX.D. for further discussion. In Allen v. Proksch, 832 N.E.2d 1080, 1095-97, (Ind. Ct. App. 2005), the Court held that Father was estopped from challenging the trial court s jurisdiction (venue) over the particular case because he filed various motions with the trial court which constituted acts of seeking affirmative relief from the trial court. The Court noted that Father went beyond the matters of defense and sought the benefit of the trial court s jurisdiction. The case had been transferred to the trial court from another county pursuant to an unverified petition and without notice to Father or a hearing, all of which are contrary to the requirements of IC 31-16-20-3 regarding a petition to transfer the jurisdiction of a child support order between counties. IV. INITIATING A GUARDIANSHIP PROCEEDING IV. A. Petition IC 29-3-4-1 was amended to provide that in addition to filing for a guardianship, a person may also file for a protective order to be issued under IC 29-3-4 on behalf of a minor. The requirements of filing for a protective order are substantially similar to filing a guardianship petition and are addressed in IC 29-3-5-1. IV. A. 1. Who May File Petition IC 29-3-5-1(a) now allows "any person to file a petition for a protective order on behalf of a minor pursuant to IC 29-3-4, as well as appointment of guardian. IV. A. 2. Contents of Petition IC 29-3-5-1(a) was amended and now provides that the following information must be stated in the petition for appointment of guardian: (1) The name, age, residence, and post office address of the alleged minor for whom the guardian is sought to be appointed or the protective order issued. (2) The nature of the incapacity. (3) The approximate value and description of the property of the minor, including any compensation, pension, insurance, or allowance to which the minor may be entitled. (4) If a limited guardianship is sought, the particular limitations requested. (5) Whether a protective order has been issued or a guardian has been appointed or is acting for the minor in any state. (6) The residence and post office address of the proposed guardian or person to carry out the protective order and the relationship to the alleged incapacitated person of: (A) the proposed guardian; or (B) the person proposed to carry out the protective order. (7) The names and addresses, as far as known or as can reasonably be ascertained, of the persons most closely related by blood or marriage to the person for whom the guardian is sought to be appointed or the protective order is issued. 2014 Supp. Ch. 14-14

IV. B. Notice (8) The name and address of the person or institution having the care and custody of the person for whom the guardian is sought to be appointed or the protective order is issued. (9) The names and addresses of any other incapacitated persons or minors for whom the proposed guardian or person to carry out the protective order is acting if the proposed guardian or person is an individual. (10) The reasons the appointment of a guardian or issuance of a protective order is sought and the interest of the petitioner in the appointment or issuance. (11) The name and business address of the attorney who is to represent the guardian or person to carry out the protective order. (12) Whether a CHINS petition or a program of informal adjustment has been filed regarding the minor for whom a guardianship is being sought, and, if so, whether the case regarding the minor is open at the time the guardianship petition is filed. Please note that IC 29-3-5-1(a)(12) is a new subsection. IV. B. 1. Who Must Be Notified IC 29-3-6-1 now provides for who must be given notice of both the petition for appointment of a guardian of a minor as well as for the issuance of a protective order. A temporary guardian may be appointed without notice in certain emergency situations pursuant to IC 29-3-3-4. See this Chapter V for discussion of temporary guardianship. IV. B. 2. Notifying Putative Fathers IV. B. 3. Methods of Notification IC 29-3-6-1 was amended, effective July 1, 2007, to delete (c) which provided that notices required by this section shall be given in the manner prescribed by IC 29-1-1-12 through IC 29-1-1-14, and, effective July 1, 2009, to provide that notice of the petition and the hearing on the petition shall to be given by first class postage prepaid mail. IC 29-1-1-12 was rewritten effective July 1, 2007. The only significant change, however, was to modify IC 29-1-1-12(a)(3) to provide for service by first class post prepaid mail rather than by registered or certified mail, return receipt requested. IV. C. Case Law on Effect of Lack of Notice In In Re Adoption of J.L.J., 4 N.E.3d 1189, 1198 (Ind. Ct. App. 2014), a consolidated guardianship and adoption appeal, the Court found that the trial court had not abused its discretion in concluding that the paternal grandmother, who had cared for the children occasionally, was not entitled to notice of the guardianship proceedings pursuant to IC 29-3-6-1(a)(3). The trial court had determined that the children were only in the grandmother s care for one day of the sixty days that preceded the filing of the guardianship petition. The Court said that the evidence did not support a finding that the grandmother was the children s primary caregiver and thus entitled to notice (emphasis in opinion). The Court, quoting Wells v. Guardianship of Wells, 737 N.E.2d 1047, 1050 (Ind. Ct. App. 2000), trans. denied, said that there is no authority for the proposition that the failure to comply with the notice requirements of IC 29-3-6-1 automatically invalidates an appointment of permanent guardianship. See Chapter 3 at II.H.7 and Chapter 13 at III.A.3. and V.E., this Supplement for further discussion. IV. D. Consents and Waiver of Notice 2014 Supp. Ch. 14-15

IV. E. Guardian ad Litem Appointment IV. E. 1. Statutes IV. E. 2. Guardian ad Litem Duties and Report In In Re Guardianship of Hickman, 805 N.E.2d 808, 821-24 (Ind. Ct. App. 2004), trans. denied, the Court affirmed the trial court s judgment granting permanent guardianship of the person and property of an adult. On appeal, the Court addressed three issues, including whether the trial court abused its discretion by admitting certain testimony of the guardian ad litem (GAL). The Court found that the appellant had waived the arguments it raised on appeal of this issue by failing to make a contemporaneous objection to the admission of the evidence at trial on those grounds. Notwithstanding waiver, however, the Court noted that Indiana courts had not addressed the admissibility of a GAL s opinion. After discussing statutory provisions regarding GALs in child custody matters and the guardianship statutes lack of provisions regarding the admissibility of the GAL s recommendations, the Court found that it did not need to decide the admissibility of a GAL s opinion in this case. The Court stated that, even assuming the trial court abused its discretion by admitting the evidence, any error in the advisory jury hearing the guardian ad litem s testimony was harmless and that, when a case is tried to the bench, it is presumed on appeal that the trial court ignored inadmissible evidence in reaching its judgment. The Court noted, however, that it did not mean to suggest that statements and other submissions from a GAL made before a nonadvisory jury were not completely subject to the rules of evidence for their admissibility. See In Re Guardianship of B.H., 770 N.E.2d 283 (Ind. 2002) (recommendations of Court Appointed Special Advocate report cited by Court as one of factors noted in trial court s detailed findings of facts which Court found provided ample support for trial court s judgment granting stepfather s guardianship petition); Allen v. Proksch, 832 N.E.2d 1080, 1101, (Ind. Ct. App. 2005) (Guardian ad litem s recommendation that, despite presumption in favor of natural parent, custody of child should remain with Grandmother with future goal of reunification with Father, was cited by Court as one of factors which Court found provided ample support for trial court s judgment granting Grandmother third-party custody of child); Hinkley v. Chapman, 817 N.E.2d 1288 (Ind. Ct. App. 2004) (cites testimony of guardian ad litem, who had reviewed child s psychological evaluation, as well as other information, that because of child s educational deficiency it was in his best interests to be placed with his adult sister and her husband who were seeking guardianship of child); In Re Guardianship of Hickman, 811 N.E.2d 843, 852 (Ind. Ct. App. 2004) (in adult guardianship case, Court held that appointment of guardian ad litem did not preclude award of attorney fees to guardianship petitioner), trans. denied; and Francies v. Francies, 759 N.E.2d 1106, 1116-17 (Ind. Ct. App. 2001) (trial court and Court referred to guardian ad litem s report as supporting evidence for finding that Grandmother who sought custody and child had become strongly emotionally attached), trans. denied. IV. E. 3. Guardian ad Litem Fees V. TEMPORARY GUARDIANSHIP/THIRD-PARTY CUSTODY V. A. Statutory Requirements For Appointment IC 29-3-3-4 was amended to provide that the court may appoint a temporary guardian for a minor for up to ninety (90) days, pursuant to any person s petition or on the court s own motion. Previously, this time frame was sixty (60) days. 2014 Supp. Ch. 14-16

V. A. 1. General Statute and Case Law Regarding Temporary Guardianship/Third-Party Custody Amendments were made to IC 29-3-3-4 concerning notice requirements when a temporary guardianship is requested. IC 29-3-3-4(a) now provides that if a temporary guardian is appointed without advance notice and the alleged incapacitated person or minor files a petition that the guardianship be terminated or the court order modified, the court shall hear and determine the petition at the earliest possible time. (emphasis added). IC 29-3-3-4(b) was added, and it provides that if: (1) a petition is filed under this section for the appointment of a temporary guardian; and (2) each person required to receive notice under IC 29-3-6-1(a) has not: (A) received a complete copy of the petition and notice required by IC 29-3-6-2 before the court considers and acts on the petition; or (B) received actual notice of the filing of the petition and specifically waived in writing the necessity for service of the notice required under IC 29-3-6-2 before the court considers and acts on the petition; the petitioner shall, on the earlier of the date the court enters an order scheduling a hearing on the petition or the date the court enters an order appointing a temporary guardian, serve complete copies of the petition, the court's order, and the notice required by IC 29-3-6-2 on every person entitled to receive notice under IC 29-3-6-1(a) and on each additional person to whom the court directs that notice be given. The requirements of this subsection are in addition to the petitioner's obligations under Rule 65 of the Indiana Rules of Trial Procedure to make a specific showing of the petitioner's efforts to provide advance notice to all interested persons or the reasons why advance notice cannot or should not be given. IC 29-3-7-7 and IC 31-30-1-2.5 limit whom a juvenile court may appoint as a child s guardian or custodian. Please note that there are differing versions of this statute with different effective dates, with changes made to reflect the changes in criminal code classifications. See this Chapter at VI.A.1. for further discussion. The Health Care Consent Law is now codified at IC 16-36-1. The Court in Francies v. Francies, 759 N.E.2d 1106, 1110-12 (Ind. Ct. App. 2001), trans. denied, found that the period of more than two years between the emergency order granting temporary third-party custody of the child to paternal Grandmother and the trial court s final custody determination did not deprive Mother of due process requiring reversal of the final custody determination. The Court distinguished cases relied upon by Mother. In this case, a hearing was set the day the emergency order was entered and, at this hearing which was held thirteen days later, Mother was represented by counsel and the trial court heard evidence and determined that the child should remain in Grandmother s custody. The Court also noted that, immediately before the hearing, the trial court conducted an in-depth in camera interview of the child. More importantly, according to the Court, part of the delay was attributable to Mother s request for a continuance and request for further hearing. Also, other irregularities alleged by Mother either were not attributable to the trial court or were waived by Mother by failing to object to the trial court. Moreover, Mother s visitation was not limited to supervised visitation during the period, as it was in one of the cases Mother used as supporting authority. V. A. 2. Temporary Guardianship Statute in Restricted Visitation Cases 2014 Supp. Ch. 14-17

V. A. 3. Delegation by Power of Attorney IC 29-3-9-1 provides a means of delegating guardian-like powers without a court proceeding. Since its amendments in 2008, 2011, and 2014, it now provides: (a) Except as provided in subsection (b), by a properly executed power of attorney, a parent of a minor or a guardian (other than a temporary guardian) of a protected person may delegate to another person for: (1) any period during which the care and custody of the minor or protected person is entrusted to an institution furnishing care, custody, education, or training; or (2) a period not exceeding twelve (12) months; any powers regarding support, custody, or property of the minor or protected person. A delegation described in this subsection if effective immediately unless otherwise stated in the power of attorney. (b) A parent of a minor or a guardian of a protected person may not delegate under subsection (a) the power to: (1) consent to the marriage or adoption of a protected person who is a minor; or (2) petition the court to request the authority to petition for dissolution of marriage, legal separation, or annulment of marriage on behalf of a protected person as provided under IC 29-3-9-12.2 (c) A person having a power of attorney executed under subsection (a) has and shall exercise, for the period during which the power is effective, all other authority of the parent or guardian respecting the support, custody, or property of the minor or protected person except any authority expressly excluded in the written instrument delegating the power. However, the parent or guardian remains responsible for any act or omission of the person having the power of attorney with respect to the affairs, property, and person of the minor or protected person as though the power of attorney had never been executed. (d) Except as otherwise stated in the power of attorney delegating powers under this section, a delegation of powers under this section may be revoked by a written instrument of revocation that: (1) identifies the power of attorney revoked; and (2) is signed by the: (A) parent of a minor; or (B) guardian of a protected person; who executed the power of attorney. V. B. Joinder With Other Proceedings V. C. Powers and Duties of Temporary Guardian/Third-Party Custodian Due to amendments which added new subsection, IC 29-3-3-4(d) now provides that a temporary guardian appointed under this section only has the powers and responsibilities that are ordered by the court. V. D. Case Law VI. APPOINTMENT OF GUARDIAN/THIRD-PARTY CUSTODIAN VI. A. Legal Requirements 2014 Supp. Ch. 14-18

VI. A. 1. Statutes IC 29-3-8-9(a) was amended to provide that A probate or juvenile court may include in its order creating a guardianship of a minor the following: (1) A requirement that the minor must reside with the guardian until the guardianship is terminated or modified. (2) Any terms and conditions that a parent must meet in order to seek modification or termination of the guardianship. This affects the ability of a parent to terminate the guardianship. See this chapter, this Supplement at IX.A. IC 29-3-8-9(e) was amended to provide that if a minor who is the subject of a guardianship petition was also either the subject of a CHINS petition or an informal adjustment, the court must do the following at a hearing regarding any guardianship petition: (1) Consider the position of [DCS]. (2) If requested by [DCS], allow [DCS] to present evidence regarding: (A) whether the guardianship should be modified or terminated; (B) the fitness of the parent to provide for the care and supervision of the minor at the time of the hearing; (C) the appropriate care and placement of the child; and (D) the best interests of the child. IC 29-3-7-7 and IC 31-30-1-2.5 both limit whom a juvenile court may appoint as a child s guardian or custodian, and contain the same provisions with similar language. Both have been amended since their addition to the Indiana Code. Both statues prevent the following people from serving as guardians or third party custodians of a child: (1) sexually violent predators (IC 35-38-1-7.5); (2) a person who was at least eighteen at the time the person committed child molesting (IC 35-42-4-3) or sexual misconduct with a minor (IC 35-42-4-9) against a child less than sixteen years old, and did so by using or threatening the use of deadly force, or while armed with a deadly weapon, or that resulted in serious bodily injury; (3) a person who was less than eighteen years old but was tried and convicted as an adult for rape [IC 35-42-4-1], criminal deviate conduct [IC 35-42-4-2 before its repeal], child molesting as a Class B or B felony, or Level 2 or 4 felony [IC 35-42-4-3], or vicarious sexual gratification [IC 35-42-4-5(a)(1) through (3), IC 35-42-4-5(b)(1) as a Class A or B felony, or Level 2, 3, or 4 felony, IC 35-42-4-5(b)(2), and IC 35-42-4-5(b)(3) as a Class A or B felony, or Level 2, 3, or 4 felony] [practice note: IC 35-42-4-5(a)(3) no longer exists, but appears to have been incorporated into IC 35-42-4-5(a)(2) as part of 2013 amendments; see IC 35-42-4-5(a)(2)(C)]; (4) a person who attempts to commit or conspires to commit any of the crimes listed in number (3); or (5) a person who commits, attempts to commit, or conspires to commit any of these crimes under the laws of another jurisdiction, including a military court, that is substantially the same as the above listed offenses. Legislation added IC 31-17-2-25 which provides that, if a custodial parent or guardian of a child dies or becomes unable to care for the child and a person other than a parent files a petition to determine or modify custody of the child, the person filing may request an initial hearing by alleging facts and circumstances warranting emergency placement with a person other than the noncustodial parent pending a final determination of custody. If a hearing is so requested, unless specific conditions appear to exist, the court must set an initial hearing not later that four business days after filing to determine whether such emergency placement of the child should be granted. The court is not required to set an initial hearing under any of these specific conditions: (1) it appears from the pleadings that no emergency requiring placement with a person other than the noncustodial parent exists; (2) it appears from the pleading that the petitioner does not have a reasonable likelihood of success on the merits; or (3) manifest injustice would result. 2014 Supp. Ch. 14-19

If a temporary conditional custodian has been named under IC 31-17-2-11, IC 31-17-2-11(c) provides that if the custodial parent dies, the temporary custodian named by the court may petition the court having probate jurisdiction over the estate of the child's custodial parent for an order under IC 29-3-3-6 naming the temporary custodian as the temporary guardian of the child. VI. A. 2. Case Law In Fry v. Fry, 8 N.E.3d 209 (Ind. Ct. App. 2014),the Court affirmed the dissolution court s order which appointed Mother s former Husband as primary physical custodian of Mother s daughter (Daughter), who was born three years before Mother s marriage to Husband. Husband was not the biological or adoptive father of Mother s daughter, but Husband was awarded parenting time with Daughter by the agreement of Mother and Husband in their dissolution. Husband exercised parenting time with Daughter when he had parenting time with the son of his marriage to Mother. Mother filed a Trial Rule 60(B) motion seeking to void the order granting custody of Daughter to her former Husband. Although Mother argued that the dissolution court s order was void for want of jurisdiction, the Court concluded that the dissolution court had jurisdiction and committed no error. See this Chapter at III.B.1 for further discussion. In M.S. v. C.S., 938 N.E.2d 278, 282-3 (Ind. Ct. App. 2010), the Court affirmed the trial court s order which vacated the trial court s previous order granting Domestic Partner joint legal custody of and parenting time with Mother s child. Domestic Partner and Mother lived together in a same-sex relationship for more than ten years. During the relationship, Mother gave birth to a child conceived through artificial insemination. Four years after the child s birth, Domestic Partner and Mother sought to establish a legal relationship between Domestic Partner and the child by filing a Joint Petition to Determine Custody. In the petition, Mother and Domestic Partner agreed that they should have joint legal custody of the child, with Mother as the primary physical custodian and that Domestic Partner should have parenting time as agreed by the parties, or, in the event they could not agree, in accordance with the Indiana Parenting Time Guidelines. The trial court entered an order providing for custody and parenting time as set forth in the petition. Nineteen months after the entry of the order, Mother and Domestic Partner ended their relationship after a heated argument during which Domestic Partner physically attacked Mother and threatened Mother s life in the sixyear-old child s presence. Mother then filed her Revocation of Any and All Consents to Joint Custody of Minor Child, and the trial court vacated the joint custody order after an evidentiary hearing. The Court observed that Mother s and Domestic Partner s Joint Petition to Determine Custody sought to establish a shared custody arrangement. The Court concluded that IC 31-17-2-3 does not contemplate the creation of a shared custody arrangement between a parent and a nonparent, regardless of the consent of the parties. The Court opined that the General Assembly did not intend to allow parents to establish joint custody with third parties by simply filing a joint petition with the trial court, because to do so would allow parents and third parties to circumvent the requirements of the Adoption Act. The Court concluded that the original entry of the joint custody order was clearly erroneous. In Hinkley v. Chapman, 817 N.E.2d 1288, 1291 (Ind. Ct. App. 2004), the Court held that, although the trial court did not make the finding contemplated by IC 29-3-5-3(a)(2), the guardianship appointment was necessary as a means of providing care and supervision of the physical person or property of the minor, and such a finding was implicit in the trial court s extensive findings in support of its conclusion that the appointment was in the child s best interests. Thus, according to the Court, the statutory requirement for such a finding of 2014 Supp. Ch. 14-20

necessity was met. E.N. Ex. Rel. Nesbitt v. Rising Sun-Ohio, 720 N.E.2d 447 (Ind. Ct. App. 1999). The Court noted that, in this regard, the trial court had found that: (1) although the child was ten years old, he was reading at a first grade level and performing mathematics at a third grade level; and (2) the child s educational deficiencies were not the result of a mental impairment, which thwarted his ability to learn, but resulted from inadequate homeschooling, which deprived the child of the opportunity to learn. VI. A. 3. Considerations For Selection of Guardian In In Re Guardianship of J.Y., 942 N.E.2d 148, 153-4 (Ind. Ct. App. 2011), an adult guardianship case, the Court held, as a matter of first impression, that the requirements of a personal representative of an estate are not the same as the requirements for a guardian, and, as a result, a nonprofit corporation not authorized as a corporate fiduciary in Indiana may serve as guardian. The Court concluded that the trial court was within its discretion to appoint Carey, a domestic nonprofit corporation, as guardian of the person of the incapacitated adult who was the subject of contested guardianship proceedings. Carey is a nonprofit corporation specializing in support services for persons with disabilities and had provided daytime care for the incapacitated adult for fifty years. In Re Guardianship of A.L.C., 902 N.E.2d 343, 353-355 (Ind. Ct. App. 2009), discusses the application of IC 29-3-5-5(a)(4) which gives relative priority to a person nominated in a writing signed by a parent and attested to by at least two witnesses. In this case, Mother and Father had executed a paternity affidavit the day after the child was born out of wedlock. Prior to Mother s death in a single-car accident: Mother and Father lived with the child in a house purchased by Paternal Grandparents; Paternal Grandparents provided the couple with money; Mother was addicted to alcohol; Father had a criminal record and used illegal drugs; and Paternal Grandparents, Maternal Grandmother, and Maternal Great Grandmother provided child care for the child. After Mother s death, three couples vied for guardianship of the two year old child. The couples consisted of Maternal Grandfather and Step- Grandmother, Maternal Grandmother and Step-Grandfather, and Paternal Grandparents. During the guardianship proceedings, Paternal Grandparents submitted a document, entitled Father s Nomination of [Paternal Grandparents], which was witnessed by two people and in which Father asked that Paternal Grandparents be appointed guardians over the person and estate of the child. The trial court, among other things, granted permanent guardianship of the child to Maternal Grandmother and Step-Grandfather, and ordered that they be joined by Maternal Grandfather as guardians of the child s estate. Paternal Grandparents appealed, arguing, among other things, that they were required to be appointed as the child s coguardians under IC 29-3-5-4 and -5. The A.L.C. Court held that Paternal Grandparents are not entitled to be appointed coguardians as a matter of law by virtue of Father s Nomination requesting that they be appointed guardians of the child and his estate, inasmuch as the best interest of the child is the overriding factor the trial court must consider when appointing a guardian. The Court observed that IC 29-3-5-5(a)(4), which, here, gives Paternal Grandparents priority consideration because of Father s written Nomination of them to be the guardians, was applicable to the present case, and to the extent the trial court found to the contrary, it abused its discretion because the evidence does not support that finding. The Court opined that the choice of guardian is guided by statute, and IC 29-3-5-4 provides, in relevant part, that the court shall appoint as a guardian a qualified person or persons most suitable and willing to serve, having due regard to... (2) [a]ny request contained in a will or other written instrument[;] * * * 2014 Supp. Ch. 14-21

(5) [t]he relationship of the proposed guardian to the individual for whom guardianship is sought[; and] (7) [t]he best interest of the incapacitated person or minor and the property of the incapacitated person or minor. The A.L.C. Court also noted relevant sections of IC 29-3-5-5: (a) The following are entitled to consideration for appointment as a guardian under section 4 of this chapter in the order listed: * * * (4) A parent of an incapacitated person, or a person nominated by will of a deceased parent of an incapacitated person or by any writing signed by a parent of an incapacitated person and attested to by at least two (2) witnesses. (5) Any person related to an incapacitated person by blood or marriage with whom the incapacitated person has resided for more than six (6) months before the filing of the petition. * * * (b) With respect to persons having equal priority, the court shall select the person it considers best qualified to serve as guardian. The court, acting in the best interest of the incapacitated person or minor, may pass over a person having priority and appoint a person having a lower priority or no priority under this section. (emphasis added by the Court) Citing to IC 29-3-5-4(7) and IC 29-3-5-5(b), the A.L.C. Court found that, while Paternal Grandparents fell within one of the priority categories in IC 29-3-5-5(a) entitling them to priority consideration for appointment as the child s guardian, that status did not entitle them to the appointment, inasmuch as the best interest of the child is the overriding factor the trial court must consider when appointing a guardian. VI. A 4. Investigation by DCS or Office of the Secretary of Family and Social Services IC 29-3-9-11 has been amended multiple times. It now provides that the office of the secretary of family and social services shall investigate and report to the court concerning the conditions and circumstances of a minor and the fitness and conduct of the guardian or the proposed guardian whenever ordered to do so by the court. If a child who is the subject of a guardianship petition or a petition or terminate a guardianship was also the subject of a CHINS petition or an informal adjustment, DCS may also be entitled to be contacted about, notified of, investigate, and present evidence for the guardianship petition. See IC 29-3-8-9(c), (d), and (e). IC 29-3-8-9(c) applies in circumstances where a court, when it established a guardianship, also set terms and conditions that a parent must meet before petitioning to terminate the guardianship (IC 29-3-8-9(a)(2)). If a petition is subsequently filed to terminate or modify the guardianship before the parent meets those terms and conditions, and the child was the subject of a CHINS petition or an informal adjustment, the court shall refer the petition to [DCS] for [DCS] to determine the placement of the child in accordance with the best interests of the child. IC 29-3-8-9(d) provides that if a court appointed a guardian for a child who was the subject of a CHINS petition or an informal adjustment, and subsequently to appointing a guardian for that child, a petition to modify or terminate the guardianship is filed, the court shall notify DCS of any hearings related to the petitions. 2014 Supp. Ch. 14-22

IC 29-3-8-9(e) provides items that the court must perform at any hearing on a petition to terminate or modify a guardianship of a child was the subject of a CHINS petition or an informal adjustment: (1) Consider the position of DCS; (2) If requested by DCS, allow DCS to present evidence regarding: (A) whether the guardianship should be modified or terminated; (B) the fitness of the parent to provide for the care and supervision of the minor at the time of the hearing; (C) the appropriate care and placement of the child; and (D) the best interests of the child. VI. B. Limited Guardianship VI. B. 1. Statutes VI. B. 2. Case Law VI. C. Guardianship/Third-Party Custody Proceedings With Parental Consent and Waiver VI. D. Guardianship/Third-Party Custody Proceedings Without Parental Consent and Waiver VI. D. 1. Appointment of Counsel for Non-Consenting Parents VI. D. 2. Case Law on Standard of Proof and Burden of Proof See In Re Guardianship of B.H., 770 N.E.2d 283 (Ind. 2002) (to overcome strong presumption child s best interests are ordinarily served by placement in custody of natural parent, before placing child in custody of person other than natural parent, trial court must be satisfied by clear and convincing evidence that best interests of child require such placement and that such placement represents a substantial and significant advantage to child); In Re Custody of J.V., 913 N.E.2d 207, 210-11 (Ind. Ct. App. 2009) (in paternity proceeding, Court held that evidence supported trial court s conclusion that Grandmother was child s de facto custodian, but remanded award of third-party custody to Grandmother because trial court had failed to make determination that awarding custody of child to Grandmother was in child s best interests as required by In Re Guardianship of B.H., 770 N.E.2d 283, 287 (Ind. 2002); A.J.L. v. D.A.L., 912 N.E.2d 866, 875 (Ind. Ct. App. 2009) (in dissolution proceeding, relying on In Re L.L. & J.L., 745 N.E.2d 222, 230 (Ind. Ct. App. 2001), Court held trial court did not err when it concluded that paternal great aunt and great uncle (Aunt and Uncle) were children s de facto custodians and awarded them custody of the children, where clear and convincing evidence (1) showed that Mother had relinquished care and control of children to Aunt and Uncle for significant periods of time and that affections between children and Aunt and Uncle were completely interwoven, and (2) supported trial court s conclusion that Aunt and Uncle had rebutted presumption that Mother, as natural parent, should have custody of children); Christian v. Durm, 866 N.E.2d 826, 829-30 (Ind. Ct. App. 2007) (Court applied B.H., 770 N.E.2d 283 standard), trans. denied; Blasius v. Wilhoff, 863 N.E.2d 1223, 1231 (Ind. Ct. App. 2007) (trial court applied standard set out in B.H., 770 N.E.2d 283, 287) trans. denied; Allen v. Proksch, 832 N.E.2d 1080, 1093, 1099-100 (Ind. Ct. App. 2005) (trial court stated that party seeking third-party custody had burden of presenting clear and convincing evidence that child s best interests required that the party seeking third-party custody be given custody and Court cited holding in In Re Guardianship of B.H., 770 N.E.2d 283 (Ind. 2002) regarding requirement of clear and convincing standard of proof); Hinkley v. Chapman, 817 N.E.2d 1288, 1294 (Ind. Ct. App. 2004) (Court found trial court did not abuse its discretion in appointing guardians; cited holding in In Re Guardianship of B.H., 770 N.E.2d 283 (Ind. 2002) regarding requirement of clear and 2014 Supp. Ch. 14-23

convincing standard of proof; noted that trial court could have concluded that the judgment was established by clear and convincing evidence; and noted trial court s conclusion that parties seeking guardianship had met their burden of proof); Nunn v. Nunn, 791 N.E.2d 779,783-785 (Ind. Ct. App. 2003) (third-party seeking custody has burden of proving trial court has jurisdiction regarding issue as well as burden of overcoming parental presumption by clear and cogent evidence); and Francies v. Francies, 759 N.E.2d 1106, 1113 (Ind. Ct. App. 2001) (non-parent seeking to displace parent as custodian bears burden of overcoming, with clear and persuasive evidence, presumption that parent, rather than non-parent, should have custody of child), trans. denied. VI. D. 3. Statute and Case Law Regarding Rebuttable Presumption for Parental Custody In In Re Guardianship of B.H., 770 N.E.2d 283, 287-90 (Ind. 2002), the Indiana Supreme Court resolved the then existing dispute in the case law regarding the nature and quantum of evidence required to overcome the strong presumption that the child s best interests are ordinarily served by placement in the custody of the natural parent. This dispute was defined by the Appeals Court s holdings in Hendrickson v. Binkley, 316 N.E.2d 376 (Ind. Ct. App. 1974), (restating the considerations set forth by the Supreme Court in Gilmore v. Kitson, 74 N.E. 1083 (Ind. 1905)) and Turpen v. Turpen, 537 N.E.2d 537 (Ind. Ct. App. 1989), as well as their progeny. To resolve this dispute, the B.H. Court held: [T]hat, 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. B.H. at 287. The Court found the Turpen approach to be inadequate. Regarding the Hendickson approach, it stated: 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. Id. The Court reasoned, 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. The Court also held that this determination falls within the sound discretion of our trial courts, and their judgments must be afforded deferential review. But the Court noted that, A generalized finding that a placement other than with the natural parent is in the child s best interests, however, will not be adequate to support such determination, and detailed and specific findings are required. B.H. at 287. B.H. involved the father of two children appealing the trial court s appointment of the children s stepfather as the children s guardian following the death of the children s mother. The Court of Appeals, in In Re Guardianship of B.H., 730 N.E.2d 743 (Ind. Ct. App. 2000), had reversed and remanded, holding that the trial court s findings that the father was unfit, that he had abandoned his children, and that it was in the children's best interests to remain in the custody of their stepfather were not supported by sufficient evidence to rebut the presumption of the father's right to custody. The Supreme Court, however, granted transfer, vacated 730 N.E.2d 743, and affirmed the trial court s guardianship appointment. The 2014 Supp. Ch. 14-24

Supreme Court found the many factors given in the trial court s findings of fact and conclusions of law sufficient to grant the stepfather s guardianship petition. The listed factors were: (1) 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; (2) the failure of the father to stay current in paying his child support for the children; (3) instances of abuse before the separation and the father s violent confrontation with the children s maternal aunt after the separation; (4) 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; (5) the stepfather s role as the only psychological father the children had known since December 1991; (6) the children s connections with the community and the proximity of extended family provided by placement with the stepfather; (7) the teenaged children s strong desire to remain in Indiana with the stepfather; (8) the recommendations of the court appointed special advocate report and the children s psychotherapist that it was in the best interests of the children to remain in Indiana with the stepfather; and (9) the stepfather s role as the primary source of financial support for the children for the previous four years. Chief Justice Shepard concurred in the result of the B.H. opinion, but wrote a separate opinion with which Justice Sullivan concurred. The Chief Justice embraced the objective of requiring a rather considerable showing to overcome the parental presumption, but did not join the majority opinion because I think what the court ends up saying about the required showing actually weakens the parental presumption as it has usually been applied over the last five generations. He also opined that the majority opinion left unresolved which line of cases set forth what was now the rule. In In Re Adoption of L.T., 9 N.E.3d 172, 177-9 (Ind. Ct. App. 2014), the Court reversed the Marion Superior Court, Probate Division s order dismissing or terminating Maternal Grandparents guardianship of their three-year-old granddaughter for lack of subject matter jurisdiction and granting immediate custody of the child to adjudicated Father, her only living parent. The Court remanded with instructions to conduct a hearing on the best interests of the child. Mother had been granted custody of the child in the Marion Circuit Court, Paternity Division, and Father was granted parenting time and ordered to pay child support. After Mother s death, Maternal Grandparents filed a petition in the Hamilton Superior Court seeking guardianship of the child. Attached to the petition was a waiver of notice of hearing and consent to the guardianship, purportedly bearing Father s notarized signature. Two months later, Father filed his motion to dismiss the guardianship in Hamilton Superior Court due to lack of subject matter and personal jurisdiction. The Marion Circuit Court, Paternity Division, then entered an order to transfer the guardianship matter and consolidate it with paternity proceedings in Marion Circuit Court; thereafter, the Hamilton Superior Court entered an order of transfer. Meanwhile, Maternal Grandparents had filed a petition to adopt the child in the Marion Superior Court, Probate Division. The Marion Circuit Court transferred the matter to the Marion Superior Court, Probate Division; all proceedings were then consolidated in the probate court. After hearing argument, the Marion Superior Court, Probate Division, issued its order providing that the Hamilton Superior Court lacked subject matter jurisdiction to enter any guardianship orders, terminated the guardianship, and ordered the child to be return to her father immediately. The L.T. Court was not persuaded that Father had an absolute right to custody upon the death of Mother, and determined that the trial court erred in not conducting a hearing on the best interests of the child and on changed circumstances that would warrant a modification of custody. Father argued that he was automatically entitled to custody of the child when Mother 2014 Supp. Ch. 14-25

died. In making this argument, Father relied upon IC 29-3-3-3, which provides that parents or a surviving parent have the right to custody of a minor without the appointment of a guardian; however, this statute provides for several exceptions, such as court orders from other custody proceedings or other proceedings authorized by law. The Court determined that the plain language in this statute did not give Father an absolute right to physical custody of the child regardless of a prior court order. Father argued that the language in the concurring opinion of In re Paternity of J.A.C., 734 N.E.2d 1057 (Ind. Ct. App. 2000) indicated that custody of the child should be immediately given to Father when Mother died. The Court determined that this language in the concurring opinion was dicta, and therefore was not binding law. The Court also noted that even in the case that Father cited, the trial court did not dispense with a hearing which inquired into the best interests of the child. The Court opined that case law, while indicating that the factor of a substantial change in circumstances is almost always met at the outset in a custody dispute between a parent seeking to regain custody and a non-parent seeking to retain custody because of the strong parental presumption, does not summarily dispense with the necessary inquiry into a child s best interests in a custody dispute between a parent and a non-parent. (citing In re Paternity of K.I., 903 N.E.2d 453, 457 (Ind. 2009)). For further discussion on this case, see this Supplement at IX.D. In In Re Paternity of A.S., 984 N.E.2d 646, 651-3 (Ind. Ct. App. 2013), trans. denied, the Court reversed and remanded the trial court s award of physical custody of the nine-year-old child to Grandmother, thereby returning custody to Mother. The Court instructed the trial court to determine the details of Father s visitation and to determine what, if any, visitation rights are due to Grandmother under the Grandparent Visitation Act. The child had lived with Mother and Grandmother for the first five years of the child s life, and Grandmother provided the majority of the child s financial support. After Mother s marriage to Stepfather, the child attended pre-school and lived with Grandmother during the school week and Mother and Stepfather on weekends for the school year. When she was six years old, the child began living with Mother and Stepfather and was living with them at the time of the custody hearing. The child had weekend visits with Grandmother, but later Mother refused to allow Grandmother to have contact with the child for one year. Stepfather petitioned to adopt the child, but Birth Father, who had had no contact with the child, objected to the adoption. Birth Father petitioned to establish paternity. Grandmother petitioned for grandparent visitation and also petitioned for custody based on her status as de facto custodian. The trial court joined the cases, ordered mediation, and the parties entered into a facilitation agreement approved by the court. The agreement provided, in pertinent part, that: (1) Birth Father was the child s biological father; (2) Stepfather had withdrawn his request for adoption and custody; (3) Mother was the custodial parent; and (4) Father was to begin supervised visitation with the child. The trial court also ordered supervised visitation for Grandmother, which lasted for four sessions. Grandmother then began exercising unsupervised visitation with the child every other Saturday for twelve hours, an arrangement that was in effect at the time of the custody hearing. The trial court also appointed a guardian ad litem for the child, who submitted a report in which he recommended that: (1) Mother retain custody of the child; (2) Grandmother be granted visitation; (3) Father be granted supervised visitation with the goal of Indiana Parenting Time Guideline visitation. The trial court held a custody hearing at which: (1) Grandmother and Father presented evidence of Mother s battle with schizoaffective disorder, former alcoholism, and early post adolescent gang involvement; (2) Mother made a statement to counteract some of the claims made by other witnesses; (3) the Guardian ad Litem s report was placed into evidence, and he testified that physical custody should remain with Mother. The trial court awarded physical custody of the child to Grandmother and visitation rights to Mother and Father. The trial court subsequently denied Mother s Motion to Correct Error and Motion for Rehearing. Mother appealed, arguing that 2014 Supp. Ch. 14-26

the evidence is insufficient to overcome the presumption that it is in the child s best interests that she remain in the custody of her natural parent. The A.S. Court concluded that the evidence did not support the trial court s conclusion that Grandmother had overcome the parental presumption. The Court noted that, in a dispute between a parent and a third party, the Court cannot ignore the constitutional implications; the relationship of a parent and a child is of a constitutional dimension. The Court, quoting In Re Paternity of T.P., 920 N.E.2d 726, 731 (Ind. Ct. App. 2010), trans. denied, said that the parental presumption will not be overcome merely because a third party could provide the better things in life for the child. The Court observed that the third party has the burden to rebut the presumption that a child should be in the custody of her natural parent. The Court noted the following in support of its opinion: (1) Mother s schizoaffective disorder medication is working and Mother has both the desire and ability to make sure that appropriate adjustments will be made to the medication; (2) there is no evidence that Mother will again abuse alcohol; (3) there is no evidence that Mother, a thirty-eight-year-old stay at home mom with a husband and three daughters will return to the gang-related life of her late adolescence; (4) there is evidence that Mother, with the help of Stepfather, has so far parented an above average student who is articulate, direct, and respectful and who enjoys her life with Mother, Stepfather, and sisters; (5) the child is well adjusted in Mother s home. In Parks v. Grube, 934 N.E.2d 111,113-118 (Ind. Ct. App. 2010), the Court affirmed the trial court s order granting custody of Mother s three children to Paternal Grandparents despite Mother s argument that there was insufficient evidence to support the order. When Mother s and Father s dissolution of marriage was granted, Father was awarded custody of the children. Mother was granted visitation according to the Indiana Parenting Time Guidelines. The trial court subsequently approved the parents agreed modification of custody, granting custody of the oldest child (whose custody is not at issue in this appeal) to Mother. Father maintained custody of the three younger children. Mother remained very active in the children s lives, exercising her parenting time and attending parent/teacher conferences, doctor s appointments, and school activities. Because Father was a truck driver, Mother had physical custody of the children several days and nights during the week and for one-half of the summer. Father unexpectedly died, and his will requested that Paternal Grandparents be granted custody of the children. Mother filed a Petition to Modify, seeking custody of the children. Paternal Grandparents filed a Petition for Leave to Intervene and Petition for Modification of Custody. Hearings on the competing custody petitions were held, and evidence of Mother s alcohol abuse was presented, along with pages from two of the children s journals. The trial court also conducted a modified in camera interview with two of the children. The trial court entered findings of fact and conclusions of law and awarded custody of the children to Paternal Grandparents, and Mother appealed. The Parks Court opined that Paternal Grandparents were not required to prove that Mother is unfit. The Court noted that in custody disputes between natural parents and third parties, a presumption exists that it is in the best interest of the child to be placed in the custody of the natural parent. Citing In Re Guardianship of B.H., 770 N.E.2d 283, 287 (Ind. 2002), the Court said: (1) third parties can rebut the parental presumption by presenting clear and convincing evidence that the best interests of the child will be served by placing the child in the custody of the third party; (2) the trial court must be convinced that placement with a third party represents a substantial and significant advantage to the child; (3) evidence establishing the natural parent s unfitness or acquiescence, or demonstrating that a strong emotional bond has formed between the child and the third parties is not limited to these criteria; (4) the issue is not merely the fault of the natural parent; rather it is whether the important and strong 2014 Supp. Ch. 14-27

presumption that 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. The Parks Court observed that, although evidence that a natural parent is unfit is important, it is not the only criteria the trial court may consider. The Court could not conclude that the trial court impermissibly relied on Mother s previous alcohol-related arrests or her history of alcohol abuse. The Court found that the trial court did not err when it considered the children s preference to live with Paternal Grandparents. The Court did not agree with Mother s argument that the trial court based its decision solely on the preferences of the two older children. The Court also cited IC 31-17-2-8(3), which states that [t]he wishes of the child, with more consideration given to the child s wishes if the child is at least fourteen (14) years of age, is a relevant factor when determining a child s best interests. In In Re Paternity of L.J.S., 923 N.E.2d 458,464-5 (Ind. Ct. App. 2010), trans. denied, the Court reversed the trial court s order which modified custody of the child from Mother to Grandparents. Mother had consented to the Grandparents having custody of the child, but Father requested that he have custody. The Court remanded the case with instructions to the trial court to grant sole custody to Father and to order appropriate visitation and child support. The Court opined that the findings do not support the trial court s judgment which modified custody to Grandparents and do not clearly and convincingly overcome the strong presumption that the child should be placed in Father s custody. Therefore, the trial court erred in granting custody of the child to Grandparents. Among the findings noted by the Court were: (1) Father was temporarily delinquent in child support payments; (2) the child s physical and emotional development were normal but he had asthma, and he should not be exposed to tobacco smoke; (3) the child began living with Grandparents at birth and continues to reside with them; (4) the child has a special bond with Grandparents; (5) Mother s opinion that it would be in the child s best interests to live with Grandparents. The Court opined that these findings say nothing about Father s fitness as a parent nor do they suggest that Father abandoned the child, relinquished his rights, or otherwise abdicated his authority and were inadequate to clearly and convincingly overcome the important and strong presumption that the child s interests are best served by placement with Father. The Court also reviewed and commented on the following findings which pertain to Father: (1) although Father did not have much contact with the child for the first nine months, Father testified that he refrained from visiting because he did not know the child was his son; (2) Father s employment changes did not reflect on Father s unfitness or instability because the employment changes were conscious changes to increase his salary and to enable him to live closer to the child; (3) the facts that Father works in Kentucky but lives three hours away in Indiana and that the child s visitation with Father requires extensive driving show that Father wanted to see the child enough to travel great distances; (4) although Father smokes, he does not smoke in the house or car when the child is present and there is no finding or showing that Father s smoking has exposed the child to harm; (5) Father s failure to attend parenting classes and to timely reimburse Mother for the child s birth do not, as the trial court concludes, establish Father s disregard for the child s welfare.. The Court opined that the specific findings of the trial court are nothing more than [a] generalized finding that a placement other than with the natural parent is in [the] child s best interests, which our Supreme Court has held will not be adequate to support such [a] determination. In In Re Paternity of T.P., 920 N.E.2d 726, 731-4, 736 (Ind. Ct. App. 2010), the Court affirmed the trial court s conclusion that Interveners (Caretakers) did not qualify as the child s de facto custodians. The Court also affirmed the trial court s denial of Caretakers petition seeking joint legal custody and permanent physical custody of the child. The child 2014 Supp. Ch. 14-28

had been adjudicated a CHINS and was ordered placed with Caretakers, who had formerly employed the child s parents. The CHINS case was closed and the child was returned to Mother s care, but Caretakers continued to care for the child many days out of the month with Mother s permission. Caretakers provided Mother and child with food and money. Mother moved multiple times and lacked proper housing. Caretakers cared for the child for a total of 244 days between May 2007, and September 2008. Mother admitted to having used drugs, including crack, and Mother and her brother were involved in a physical altercation and arrested. Caretakers filed an emergency petition to intervene in parents paternity case, seeking temporary and permanent modification of custody due to substantial change in circumstances. By the time of the hearing Mother s house had adequate electricity, running water, and standard appliances such as a refrigerator and stove. Mother had made improved efforts regarding the child s education, Mother and her live-in boyfriend tested negative for drug use, and Mother had begun escorting the child to and from school daily to ensure the child s safety. Mother was unemployed and relied upon her boyfriend, who received unemployment and worked for a temporary employment agency to pay her rent. The trial court denied Caretakers petition seeking modification of custody and awarded Caretakers visitation with the child, permitting them one overnight visit per month. The T.P. Court held that Caretakers did not present clear and convincing evidence to overcome the presumption that the child s interests were best served by placement with Mother. The Court found no clear error by the trial court based upon the factors of acquiescence and strong emotional bond. The Court observed: (1) the trial court concluded Mother had permitted liberal visitation by Caretakers but had no acquiesced in their having custody of the child; and (2) the fact that the child and Caretakers have spent a great deal of time together and have a strong bond does not negate the finding that Mother and the child have similarly spent a great deal of time together and maintain a stronger bond. The Court found no clear error in the trial court s declining to use the factor of Mother s unfitness due to allegedly improper influences of drug use, sexual activity, and crime in Mother s neighborhood. The Court noted the following evidence in support of the trial court s determination regarding these issues: (1) the child s difficulties in school were attributed to her possible learning disability and the late start to her school year rather than to alleged dangerous influences at her home; (2) there was no evidence that Mother s present behavior included ongoing drug use following Mother s summer of 2008 relapse; (3) sexual allegations were deemed unsubstantiated by DCS; (4) medical evaluations did not raise concerns regarding Mother s care of the child; (5) Mother had taken steps to ensure the child s safety, including walking the child to and from school; (6) the child had adjusted to her community, and no community was immune from crime; (7) the child denied that Mother s drug use and sexual activity had occurred in front of the child; (8) Mother s homes had heat, working appliances, and, with the exception of one month-long residence, running water; and (9) by the time of the hearing, the Guardian ad Litem reported that Mother s housing conditions were adequate. In In Re Marriage of Huss, 888 N.E.2d 1238, 1242-44, 1248, n.3 (Ind. 2008), which is discussed in more detail at III.B.1., this Chapter, the Supreme Court affirmed the dissolution trial court s award to Husband of the custody of all four of Wife s children, including the youngest child who was not the biological child of Husband. The Court found that the evidence was not insufficient to support the dissolution trial court s award of custody to Husband, a non-parent third party, rather than to Wife as the child s biological mother. In making this determination, the Court noted the following facts: (1) during the marriage, Husband was at home evenings and spent time helping the children with their homework; (2) Husband prepared meals and shared doing the laundry and shopping with Wife; (3) during 2014 Supp. Ch. 14-29

the almost one year period following the provisional order granting him custody, Husband was primary caretaker for all four children; (4) Husband fully accepted the subject child as his own, and treated all four children equally; (5) Husband regularly made several trips to school each day to facilitate the children s participation in extracurricular activities; (6) there was considerable testimony regarding the close relationship between the four children and both parties extended families who lived nearby; (7) Wife s mother s testimony that what the children needed was stability, and they were getting that from being with Husband; (8) witnesses testimony about Wife s plans to move with the subject child to Louisiana, and how this would negatively impact the child s stability and family relationships; and (9) the dissolution trial court interviewed the children in chambers. King v. S.B., 837 N.E.2d 965, 967 (Ind. 2005) (Dickson, J., dissenting) was on appeal from a Trial Rule 12(B)(6) dismissal of the declaratory judgment request filed by Mother s former domestic partner. The declaratory judgment request sought a judicial declaration that she was entitled to parenting time rights, child support obligations, and certain other parental rights and responsibilities with respect to Mother s child who Mother and she jointly decided to bear and raise together, and who was conceived by artificial insemination using semen donated by domestic partner s brother. The Court reversed and remanded, holding that at least some of the relief sought in the case fell within that which In Re Guardianship of B.H., 770 N.E.2d 283 (Ind. 2002) grants persons other than natural parents to seek and Indiana trial courts, where appropriate, discretion to award. In Truelove v. Truelove, 855 N.E.2d 311, 314-15 (Ind. Ct. App. 2006), the Court affirmed the dissolution trial court s award of the custody of the two children of the marriage to their paternal grandparents. Applying the holdings of In Re Guardianship of B.H., 770 N.E.2d 283 (Ind. 2002), the Court held that there was clear and convincing evidence that the children s best interests were substantially served by placement with the paternal grandparents, and the trial court was not required to make specific findings of Mother s unfitness or her acquiescence in the children s living arrangements. The Court in Allen v. Proksch, 832 N.E.2d 1080, 1095-97 (Ind. Ct. App. 2005), affirmed the trial court s order granting custody of the child to Maternal Grandmother as third-party custodian. It applied the holdings of In Re Guardianship of B.H., 770 N.E.2d 283 (Ind. 2002) and found that the trial court s findings provided ample support for its order in granting Grandmother custody of the child. In doing so, the Court cited the following trial court findings: (1) Father's "sporadic" contact with the child from the time of the marriage dissolution when the child was less than one year old until the time when the child was approximately five years old; (2) Father's act of telling Mother that the child should not stay with him during the summer of 2001; (3) Father's abandonment of any personal contact with the child in the summer of 2001 until 2003, when Mother petitioned the trial court to modify child support; (4) Father's minimal effort to contact Mother or the child; (5) allegations that Father had hit the child when the child had stayed with him prior to 2001; (6) the child's special behavioral and emotional needs and his need to be in a stable environment; (7) Grandmother's ability to provide the child with stability and her involvement with the child's mental health treatment and school activities; and (8) the child s attachment to Grandmother and his desire to remain with Grandmother. The Court also noted these facts: (1) the guardian ad litem recommended that, despite the presumption in favor of the natural parent, custody of the child should remain with Grandmother with a future goal of reunification with Father; (2) the child s therapist from Riley Hospital testified he had concerns about the child s mental health declining if he had an abrupt change in his living conditions and that it would be better to have the child ease into a relationship with Father; 2014 Supp. Ch. 14-30

(3) the child s therapist also testified that it was important for the child to have a stable environment and that Grandmother had been a stable influence, but that Father did not have stability with the child; and (4) despite his recommendation that Father should have custody, the psychologist hired by Father testified that Grandmother had provided stability to the child, had "possibly even saved his life[,]" and that an abrupt change of custody of the child from Grandmother to Father would cause "more chaos" for the child and "would precipitate more damages." In Hinkley v. Chapman, 817 N.E.2d 1288, 1293-94 (Ind. Ct. App. 2004), the Court (1) cited the standard in In Re Guardianship of B.H., 770 N.E.2d 283 (Ind. 2002); (2) held that based upon the facts delineated by the trial court, the trial court had concluded that the parties seeking guardianship had met their burden; (3) determined that the trial court could have concluded that the judgment was established by clear and convincing evidence; and (4) therefore, held that the trial court did not abuse its discretion in appointing the guardians. The Court noted that the trial court had found (1) that the child, although ten years old, was reading at a first grade level and performing mathematics at a third grade level; (2) citing the psychological evaluation, that the child s developmental lag was not the result of a learning disability, but of Mother s failure to educate him using age-appropriate materials; (3) that Mother s recent attempts to seek help for the child had been driven by the adult sister s decision to intervene; (4) that Mother s intention to enroll the child in public school in the future was insincere; and (5) that the parties seeking guardianship had legitimate concern for [the child]. The Court in Nunn v. Nunn, 791 N.E.2d 779, 784-85 (Ind. Ct. App. 2003), found that the trial court had jurisdiction to decide the custody dispute between Wife and Husband, who was not the child s father, and remanded the case for resolution. It cited In Re Guardianship of L.L, 745 N.E.2d 222, 230-31 (Ind. Ct. App. 2001) for the propositions that, in cases involving a custody dispute between a natural parent and a third-party, there is a presumption that the natural parent should have custody of the child, and the third-party bears the burden of overcoming this presumption by clear and cogent evidence. The Court remanded this issue to the trial court for consideration under the framework announced in L.L. Evidence the Court found tending to rebut the parental presumption included: (1) the stepfather did not know the child was not his biological child until the dissolution proceeding; (2) he had been a father figure to the child her entire life; and (3) he and the child had developed a deep fatherdaughter bond. The Court also alluded to evidence indicating that awarding custody to the stepfather might be in the child s best interest which included testimony that he was instrumental in the child s daily care and financial support. See also Fry v. Fry, 8 N.E.3d 209( Ind. Ct. App. 2014), discussed in detail at III.B., this Chapter, in which the Court affirmed the dissolution court s order awarding custody of Mother s Daughter to Mother s former Husband. See also In Re Custody of J.V., 913 N.E.2d 207, 210-11 (Ind. Ct. App. 2009) (in paternity proceeding, relying on In Re L.L. & J.L., 745 N.E.2d 222, 230 (Ind. Ct. App. 2001), Court held that evidence supported trial court s conclusion that Grandmother was child s de facto custodian, but remanded award of third-party custody to Grandmother because trial court had failed to make determination that awarding custody of child to Grandmother was in child s best interests as required by In Re Guardianship of B.H., 770 N.E.2d 283, 287 (Ind. 2002); A.J.L. v. D.A.L., 912 N.E.2d 866, 875 (Ind. Ct. App. 2009) (in dissolution proceeding, relying on In Re L.L. & J.L., 745 N.E.2d 222, 230 (Ind. Ct. App. 2001), Court held trial court did not err when it concluded that paternal great aunt and great uncle (Aunt and Uncle) were children s de facto custodians and awarded them custody of the children, where clear and 2014 Supp. Ch. 14-31

convincing evidence showed that (1) Mother had relinquished care and control of children to Aunt and Uncle for significant periods of time and that affections between children and Aunt and Uncle were completely interwoven, and (2) supported trial court s conclusion that Aunt and Uncle had rebutted presumption that Mother, as natural parent, should have custody of children); Christian v. Durm, 866 N.E.2d 826, 829-30 (Ind. Ct. App. 2007) (Court quoted and applied In Re Guardianship of B.H., 770 N.E.2d 283 (Ind. 2002) language regarding rebuttable presumption in favor of parents and held trial court not required to make specific finding of unfitness or abandonment), trans. denied; Blasius v. Wilhoff, 863 N.E.2d 1223, 1229 (Ind. Ct. App. 2007) (Court held that trial court applied B.H. standard regarding rebuttable presumption and, although evidence establishing biological parent s unfitness or acquiescence, or demonstrating that strong emotional bond had formed between child and third party seeking custody would be important, trial court is not limited to these criteria), trans. denied; and Francies v. Francies, 759 N.E. 2d 1106, 1113-15 (Ind. Ct. App. 2001) (Court held trial court s finding that Grandmother, who was seeking third party custody of child, had successfully rebutted parental presumption). VI. D. 4. Visitation For Parents in Guardianship/Third-Party Custodianship Cases See In Re Paternity of Z.T.H., 839 N.E.2d 246, 248, 253 (Ind. Ct. App. 2005) (Crone, J., dissenting) (throughout the third-party custodianship, Father telephoned the child regularly, attended a majority of the child s sporting events and school activities, and consistently exercised visitation); Allen v. Proksch, 832 N.E.2d 1080, 1095-97 (Ind. Ct. App. 2005) (trial court granted Father parenting time with child as provided in Indiana Parenting Time Guidelines for non-custodial parent where Grandmother was awarded custody of child as third-party custodian); In Re Guardianship of A.R.S., 816 N.E.2d 1160, 1162-63 (Ind. Ct. App. 2004) (Crone, J., dissenting) (Mother abandoned earlier effort to terminate guardianship of her children after establishing a fixed visitation schedule); Roydes v. Cappy, 762 N.E.2d 1268, 1270 (Ind. Ct. App. 2002) (Riley, J., dissenting) (trial court entered an order requiring Mother and Guardian, who was maternal grandmother, to follow a visitation schedule); and Harris v. Smith, 752 N.E.2d 1283, 1288-90 (Ind. Ct. App. 2001) (order granting third parties custody of child stated Mother and Father shall be entitled to visit [the child] at all reasonable and proper times agreeable to [third-party custodians] ). See Chapter 8 at VI. for more in-depth discussion of statutes and case law regarding parenting time and visitation generally. VI. E. Appellate Review Standard In In Re Guardianship of B.H., 770 N.E.2d 283, 287-88 (Ind. 2002), regarding the appellate standard of review, the Supreme Court stated: In deference to the trial court s proximity to the issues, we disturb the judgment only where there is no evidence supporting 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 2014 Supp. Ch. 14-32

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. Bud Wolf Chevrolet, Inc. v. Robertson, 519 N.E.2d 135, 137 (Ind. 1988). See also In Re Marriage of Huss,, 888 N.E.2d 1238, 1245 (Ind. 2008), (Supreme Court applied In Re Guardianship of B.H., 770 N.E.2d 283, 287 (Ind. 2002) standard of review, specifically reciting its statement that an appellate court should not disturb a trial court determination awarding child custody to a non-parent unless there is no evidence supporting the findings or the findings fail to support the judgment ); Christian v. Durm, 866 N.E.2d 826, 829-30 (Ind. Ct. App. 2007) (Court applied In Re Guardianship of B.H., 770 N.E.2d 283 (Ind. 2002) standard of review), trans. denied; Blasius v. Wilhoff, 863 N.E.2d 1223, 1231 (Ind. Ct. App. 2007) (Court held that according the trial court the appropriate deference, as we must, we cannot conclude its findings are clearly erroneous or that its judgment is against the logic and effect of the evidence inasmuch as (1) evidence supports trial court s findings, and trial court s findings provide support for its judgment to grant custody of child to third party custodians; (2) trial court applied standard of review set out in B.H.; and (3) trial court was clearly convinced that placement with third party custodians represented substantial and significant advantage to child), trans. denied; Allen v. Proksch, 832 N.E.2d 1080, 1095-97, (Ind. Ct. App. 2005) (stated standard of review essentially as stated in In Re Guardianship of B.H., 770 N.E.2d 283 (Ind. 2002)); Hinkley v. Chapman, 817 N.E.2d 1288 (Ind. Ct. App. 2004) (quoted In Re Guardianship of B.H., 770 N.E.2d 283 (Ind. 2002) regarding appellate review standard); In Re Custody of G.J., 796 N.E.2d 756 (Ind. Ct. App. 2003) (regarding allegation that party lacks standing, deference to trial court s decision is not required because allegation is treated as motion to dismiss under Indiana Trial Rule 12(B)(6)), trans. denied; Nunn v. Nunn, 791 N.E.2d 779 (Ind. Ct. App. 2003) (abuse of discretion is standard of review); and Francies v. Francies, 759 N.E.2d 1106, 1115-16 (Ind. Ct. App. 2001) (abuse of discretion is standard of review), trans. denied. VII. RESPONSIBILITITES AND DUTIES OF MINOR S GUARDIAN/THIRD-PARTY CUSTODIAN VII. A. Statutes VII. A 1. Required Powers and Duties IC 29-3-8-9(a) was added and subsequently amended. Among other changes and additions, it provides that (a) A probate or juvenile court may include in its order creating a guardianship of a minor the following: (1) A requirement that the minor must reside with the guardian until the guardianship is terminated or modified IC 29-3-8-9(f) provides that either DCS or the proposed guardian must notify the guardianship court if DCS has approved financial assistance to a guardian for the minor as a component of child services (as defined in IC 31-9-2-17.8(1)(E)). If the guardian will be provided assistance as a component of child services, the court shall order the guardian to provide financial support to the protected person to the extent the following resources do not fully support the needs of the protected person: (1) The guardianship property of the protected person. (2) Child support or other financial assistance received by the guardian from the protected person's parent or parents. 2014 Supp. Ch. 14-33

(3) Periodic payments the guardian receives from DCS for support of the protected person as set forth in DCS s rules or the terms of the guardianship assistance agreement. VII. A 2. Permissive Powers and Duties VII. A 3. Delegation of Powers and Duties IC 29-3-9-1 has been amended multiple times. IC 29-3-9-1(a) now provides that, except as provided in (b), a parent of a minor or a guardian (other than a temporary guardian) of a protected person may delegate to another person ), by a properly executed power of attorney for: (1) any period during which the care and custody of the minor or protected person is entrusted to an institution furnishing care, custody, education, or training; or (2) a period not exceeding twelve (12) months; any powers regarding support, custody, or property of the minor or protected person. These described delegations are effective immediately unless otherwise stated in the power of attorney. IC 29-3-9-1(b) is new as of 2014, and it provides that a parent of a minor or a guardian of a protected person may not delegate under subsection (a) the power to: (1) consent to the marriage or adoption of a protected person who is a minor; or (2) petition the court to request the authority to petition for dissolution of marriage, legal separation, or annulment of marriage on behalf of a protected person as provided under IC 29-3-9-12.2. IC 29-3-9-1(c) which states that if a person has a power of attorney described in (a), while the power of attorney is effective, he or she has and shall exercise all other authority of the parent or guardian regarding the support, custody, or property of the minor. Authorities must be expressly excluded in power of attorney in order to limit the power of attorney. The parent or guardian remains responsible for any act or omission of the person having the power of attorney with respect to the affairs, property, and person of the minor as though the power of attorney had never been executed. IC 29-3-9-1(d), which was formerly IC 29-3-9-1(c), was added, was also amended and it states that, except as otherwise provided, a delegation of powers under this section may be revoked in writing by a document that: (1) identifies the power of attorney revoked; and (2) is signed by the: (A) parent of a minor; or (B) guardian of a protected person; who executed the power of attorney. VII. A 4. Compensation In In Re Guardianship of Hickman, 811 N.E.2d 843, 852 (Ind. Ct. App. 2004), trans. denied, an adult guardianship case, the Court affirmed the trial court s order awarding attorney fees from the estate for guardianship petitioner s attorneys despite another party s argument that, because a guardian ad litem had been appointed, the involvement of the guardianship petitioner was no longer necessary. The Court opined that a trial court is required to appoint a guardian ad litem to represent the interests of an alleged incapacitated person. The Court further stated that, unlike the guardian ad litem, a guardianship petitioner is not required to act in accordance with the incapacitated person s best interests. Because the guardianship petitioner s interests might have been different from the incapacitated adult s interests, the argument that attorney fees for the guardianship petitioner were unreasonable was without merit. VII. B. Case Law 2014 Supp. Ch. 14-34

VII. B. 1. Generally In In Re Guardianship of Stalker, 953 N.E.2d 1094, 1106-8 (Ind. Ct. App. 2011), an adult guardianship case, the Court concluded that the guardian breached her fiduciary duty to protect, preserve, and properly manage her ward s property, her fiduciary duty of loyalty to her ward, and violated her ward s due process. The Court remanded to the trial court to determine the ward s harm and award damages. VII. B. 2. Sterilization VII. C. Local Rules and Practices Concerning Minor s Property VIII. RESIGNATION, REMOVAL AND APPOINTMENT OF SUCCESSOR GUARDIAN VIII.A. Resignation VIII.B. Removal of Guardian VIII.B. 1. Statutory Reasons For Removal VIII.B. 2. Initiating a Removal Proceeding VIII.B. 3. Emergency Suspension IC 29-3-3-4(c) now provides that that if the court finds that a previously appointed guardian is not effectively performing fiduciary duties and the welfare of the minor requires immediate action, the court may suspend the authority of the previously appointed guardian. The previously appointed guardian s is suspended as long as the temporary guardian as the authority under this subsection to act. The court may appoint a temporary guardian for any period fixed by the court. IC 29-3-3-4(d) now provides that the court shall order only those powers that are necessary to prevent immediate and substantial injury or loss to the minor s person or property. VIII.B. 4. Case Law Concerning Removal of Guardian Schwartz v. Schwartz, 773 N.E.2d 348, 353 (Ind. Ct. App. 2002) (Court affirmed trial court s removal of guardian of estate of incapacitated adult because guardian of estate had mismanaged estate assets, failed to follow court orders, and failed to follow tax laws). VIII.C. Appointment of Successor Guardian VIII.C. 1. Statutory Authority VIII.C. 2. Case Law IX. TERMINATION OF GUARDIANSHIP/THIRD-PARTY CUSTODIANSHIP IX. A. Statutory Provisions IC 29-3-8-9 was added in 2011 and subsequently amended in several ways relevant to termination of guardianships. IC 29-3-8-9(a) provides that initially, when establishing a guardianship, a probate or juvenile court may include in its order any terms and conditions that a parent must meet in order to seek modification or termination of the guardianship. 2014 Supp. Ch. 14-35

IC 29-3-8-9(b) states that, if a guardianship order sets terms and conditions as described in subsection (a), except as otherwise provided (in IC 29-3-12), the court may modify or terminate the guardianship only if the parent complies with the terms and conditions, and proves, by a preponderance of the evidence, his or her current fitness to assume all parental obligations. IC 29-3-8-9(c) applies in circumstances where a court, when it established a guardianship, also set terms and conditions that a parent must meet before petitioning to terminate the guardianship (IC 29-3-8-9(a)(2)). If a petition is subsequently filed to terminate or modify the guardianship before the parent meets those terms and conditions, and the child was the subject of a CHINS petition or an informal adjustment, the court shall refer the petition to DCS for DCS to determine the placement of the child in accordance with the best interests of the child. IC 29-3-8-9(d) provides that if a court appointed a guardian for a child who was the subject of a CHINS petition or an informal adjustment, and subsequently to appointing a guardian for that child, a petition to modify or terminate the guardianship is filed, the court shall notify DCS of any hearings related to the petitions. IC 29-3-8-9(e) provides items that the court must perform at any hearing on a petition to terminate or modify a guardianship of a child was the subject of a CHINS petition or an informal adjustment: (1) Consider the position of DCS; (2) If requested by DCS, allow DCS to present evidence regarding: (A) whether the guardianship should be modified or terminated; (B) the fitness of the parent to provide for the care and supervision of the minor at the time of the hearing; (C) the appropriate care and placement of the child; and (D) the best interests of the child. IC 29-3-12-1(a) was amended to add references to IC 29-3-12-6 and 7, both of which provide circumstances under which a guardianship could be extended past age 18. IC 29-2-12-6(a) provides that if a protected person is a minor who has been adjudicated an incapacitated person, the court may not terminate the guardianship when the minor turns eighteen years old. IC 29-2-12-6(b) provides that if a minor is a protected person who is also a recipient or beneficiary of financial assistance provided by DCS through a guardianship described in IC 31-9- 2-17.8(1)(E), the court may not terminate the guardianship when the minor attains eighteen (18) years of age. IC 29-2-12-7 applies to the guardianship of a minor who has not been adjudicated an incapacitated person. IC 29-2-12-7(b) provides that a protected person who is at least seventeen years old and the guardian of the protected person may jointly petition the court to extend the duration of the guardianship beyond the date on which the protected person turns eighteen years old earlier of the following: (1) A termination date, if any, set forth in the petition; or (2) The date the protected person attains twenty-two (22) years of age. IC 29-2-12-7(c) requires that the petition described in (b) must be verified. IC 29-2-12-7(d) states that the court, after notice and hearing, may extend a guardianship under this section if the court finds that extending the guardianship is in the best interests of the protected person. This extension of a guardianship does not place the protected person under a legal disability. The age at which some guardianships, over which juvenile court jurisdiction, terminate has been modified by legislation passed subsequent to publication of the CHINS Deskbook 2001. Statutes dealing with a minor s age and termination of a guardianship or the juvenile court s jurisdiction over the minor are IC 31-30-1-1(13) (collaborative care); IC 31-30-2-1(d) (juvenile court jurisdiction over guardianship past age of 18); IC 31-30-2-1(g) (juvenile court jurisdiction over an 2014 Supp. Ch. 14-36

older youth). For more information on these statutes, please see this Chapter, this Supplement, at III.B.3.b. IX. B. Initiating a Petition For Termination of Guardianship/Third-Party Custodianship Parents and counsel for parents who seek to terminate a guardianship should be mindful of IC 29-3-8-9(a) and (b). IC 29-3-8-9(a) provides that initially, when establishing a guardianship, a probate or juvenile court may include in its order any terms and conditions that a parent must meet in order to seek modification or termination of the guardianship. IC 29-3-8-9(b) provides that [e]xcept as provided in IC 29-3-12, if an order creating a guardianship contains terms and conditions described in subsection (a)(2), the court may modify or terminate the guardianship only if the parent: (1) complies with the terms and conditions; and (2) proves the parent's current fitness to assume all parental obligations by a preponderance of the evidence. In White v. White, 796 N.E.2d 377 (Ind. Ct. App. 2003), the Court held that, because Guardian of the child was not notified of the petition to change custody and terminate support, the paternity court order that terminated Father s responsibility to pay child support was void. The Court noted that the failure by Mother and Father in this case to give notice to the child rendered the judgment only voidable, but reasoned that a guardian is in a situation distinguishable from a child without a guardian, who presumably lives with the mother or father who must be given notice. IX. C. Burden of Proof In K.I. ex rel. J.I. v. J.H., 903 N.E.2d 453, 459-61 (Ind. 2009), the Supreme Court held that, when ruling on a parent s petition to modify custody of a child who is already in the custody of a third party, (1) although in a very technical sense, a natural parent seeking to modify custody has the burden of establishing the statutory requirements for modification by showing modification is in the child s best interest, and that there has been a substantial change in one or more of the enumerated factors, as a practical matter, this burden is minimal; and (2) once this minimal burden is met, to retain custody of the child, the third party must prove by clear and convincing evidence that the child s best interests are substantially and significantly served by placement with another person. In Re Guardianship of B.H., 770 N.E.2d 283, 287 (Ind. 2002). If the third party carries this burden, then custody of the child remains in the third party; otherwise, custody must be modified in favor of the child s natural parent. The Court discussed In Re Paternity of Z.T.H., 839 N.E.2d 246 (Ind. Ct. App. 2005) and explicitly disapproved the Z.T.H. court s conclusion that, where a parent requests to modify a third party s custody, a burden shifting approach is the most appropriate way to protect parental rights and the best interests of the child. The Court noted that, even though, in accordance with IC 31-14-13-6, a party seeking a change of custody must persuade the trial court that modification is in the best interests of the child and that there is a substantial change in one or more of the factors that the court may consider under section 2 and, if applicable, section 2.5 of this chapter, (1) these are modest requirements where the party seeking to modify custody is the natural parent of a child who is in the custody of a third party; (2) inasmuch as, in accordance with B.H. at 287, the parent comes to the table with a strong presumption that a child s interests are best served by placement with the natural parent the first statutory requirement is met from the outset; and (3) because a substantial change in any one of the statutory factors will suffice, the interaction and interrelationship of the child with... the child s parents one of the grounds on which the trial court relied in this case satisfies the second statutory requirement. See this Chapter at IV.D. for more detailed discussion of this case. NOTE: The provisions of IC 31-14-13-6, IC 31-14-13-2, and IC 31-14-13-2.5 are substantively identical to IC 31-17-2-21(a), IC 31-17-2-8, and IC 31-17-2-8.5, respectively. 2014 Supp. Ch. 14-37

In In Re I.E., 997 N.E.2d 358, 363 (Ind. Ct. App. 2013), the Court explained the burden of proof in a paternity custody modification case and a termination of guardianship case that were addressed at the same time. The Court said that Father was required to prove that modification of custody was in the child s best interests and that there was a substantial change in one or more of the factors that the court may consider under IC 31-14-13-2(2). The Court said that the best interest requirement is met from the outset because of the strong presumption that a child s best interests are served by placement with a natural parent. The Court concluded that the record clearly demonstrated that there had been a change with respect to Father s wishes concerning custody of the child and that there had been a change in the interaction and interrelationship between the child and Father, so Father had carried his burden. The Court said that, at that point, the burden shifted to Guardians to prove by clear and convincing evidence that the child s best interests are substantially and significantly served by placement with another person. (quoting K.I. Ex Rel. J.J. v. J.H., 903 N.E.2d 453, 460 (Ind. 2009)). In In Re Guardianship of L.R.T, 979 N.E.2d 688, 691 (Ind. Ct. App. 2012), trans. denied, the Court affirmed the trial court s order terminating the guardianship. The Court stated that, in a custody dispute between a parent and a third party, even where the parent seeks to re-obtain custody, the burden of proof is always upon the third party. The Court further said that, although the party seeking a change of custody must persuade the trial court that modification is in the child s best interests and there is a substantial change in one of the custody factors listed at IC 31-14-13-6, these are modest requirements where the party seeking to modify custody is the natural parent of a child who is in the custody of a third party. In Re K.I., 903 N.E.2d 453, 460 (Ind. 2009). The Court opined that Guardians cannot prevail upon their suggestion that the trial court should have disregarded a parent presumption because Guardians have provided long-term care for the children. See this Chapter at IX. D. for further discussion. See also In Re M.K., 867 N.E.2d 271, 275 (Ind. Ct. App. 2007) (Court reversed trial court s refusal to terminate guardianship, holding, among other things, that guardians had not met their burden of rebutting parental presumption by clear and convincing evidence); In Re Guardianship of J.K., 862 N.E.2d 686, 692 (Ind. Ct. App. 2007), (Court held that, even in actions filed by parents to terminate guardianship, guardians bear burden of proving by clear and convincing evidence that guardianship should continue); In Re Guardianship of A.R.S., 816 N.E.2d 1160, 1162-63 (Ind. Ct. App. 2004) (Crone, J., dissenting) (standard of proof is clear and convincing evidence); In Re Paternity of V.M., 790 N.E.2d 1005, 1008-09 (Ind. Ct. App. 2003) (standard of proof is clear and convincing evidence); Roydes v. Cappy, 762 N.E.2d 1268, 1276 (Ind. Ct. App. 2002) (Riley, J., dissenting) (standard of proof is clear and cogent showing); Harris v. Smith, 752 N.E.2d 1283, 1290 (Ind. Ct. App. 2001) (burden of proof lies with the third-party custodian and is clear and persuasive showing); and In Re Guardianship of L.L., 745 N.E.2d 222 (Ind. Ct. App. 2001) (the third party bears the burden of overcoming the parental presumption by clear and cogent evidence), trans. denied. IX. D. Case Law In its March 25, 2009 decision in K.I. ex rel. J.I. v. J.H., 903 N.E.2d 453, 459-61 (Ind. 2009), the Supreme Court spoke directly to the standard to be applied in determining whether to modify custody from the guardian or third party custodian back to a parent, thus terminating the guardianship or third party custodianship. The K.I. Court held that, when ruling on a parent s petition to modify custody of a child who is already in the custody of a third party, (1) although in a very technical sense, a natural parent seeking to modify custody has the burden of establishing the statutory requirements for modification by showing modification is in the child s best interest, and that there has been a substantial change in one or more of the enumerated factors, as a 2014 Supp. Ch. 14-38

practical matter, this burden is minimal; and (2) once this minimal burden is met, to retain custody of the child, the third party must prove by clear and convincing evidence that the child s best interests are substantially and significantly served by placement with another person. In Re Guardianship of B.H., 770 N.E.2d 283, 287 (Ind. 2002). If the third party carries this burden, then custody of the child remains in the third party; otherwise, custody must be modified in favor of the child s natural parent. In K.I., the child was born out of wedlock on November 28, 2001. At the time the parties relationship ended, Father was unaware that Mother was pregnant. About six weeks after the child s birth, Mother left the child in the custody of maternal grandmother (Grandmother) who, with her husband, filed for guardianship of the child which was granted September 17, 2002. Sometime in September or October of 2002, during a chance encounter between Mother and Father, Mother showed Father a picture of the child and told Father he might be the child s biological father. On March 12, 2004, acting as next friend of the child, Grandmother filed a petition to establish paternity in Father, and sought an order awarding custody to Grandmother and directing Father to pay child support and reimbursement of medical and hospital expenses. Following a September 13, 2004 hearing, based on genetic testing results, the trial court entered an order declaring Father to be the child s biological father and memorializing the parties agreement on the other issues which included leaving the child in Grandmother s custody. Over the next eighteen months, Father spent a significant amount of time with the child. On August 29, 2006, the State on behalf of the Grandmother filed a motion to modify child support. On September 25, 2006, Father filed a Petition for Change of Custody. After a hearing, on June 15, 2007, the trial court entered an order, among other things, awarding custody of the child to Father. In her appeal of the custody order, Grandmother relied on In Re Paternity of Z.T.H., 839 N.E.2d 246 (Ind. Ct. App. 2005) (holding that, in addressing a parent s request to modify the long-term permanent custody of a third party, a burden shifting approach is the most appropriate way to protect parental rights and the best interests of the child: (1) first, the third party must rebut the parental presumption with clear and convincing evidence establishing the natural parent s unfitness or acquiescence, or demonstrating that a strong emotional bond has formed between the child and the third party; and (2) if the third party succeeds, then the third party is essentially in the same position as any custodial parent objecting to the modification of custody, and the parent seeking to modify custody must establish the statutory requirements for modification by showing that modification is in the child s best interests and that there has been a substantial change in one or more of the factors enumerated at IC 31-14-13-2 and, if applicable, IC 31-14-13-2.5). In K.I., the Supreme Court discussed In Re Paternity of Z.T.H., 839 N.E.2d 246 (Ind. Ct. App. 2005) and explicitly disapproved the Z.T.H. court s conclusion that, where a parent requests to modify a third party s custody, a burden shifting approach is the most appropriate way to protect parental rights and the best interests of the child. Here, the Court saw the central issues as (1) what standard a trial court should apply when ruling on a parent s petition to modify custody of a child who is already in the custody of a third party, and (2) what role, if any, the presumption in favor of the natural parent plays in a modification proceeding. The Court explained that: (1) the distinctions between the statutory factors required to obtain initial custody and those required for a subsequent custody modification are not significant enough to justify substantially different approaches in resolving custody disputes; (2) both require consideration of certain relevant factors; (3) importantly, Indiana courts have long held that, even when a parent initiates an action to reobtain custody of a child that has been in the custody of another, the burden of proof does not shift to the parent, rather the burden of proof is always on the third party; (4) a burden shifting regime that places the third party and the parent on a level playing field, as does the one in Z.T.H., is inconsistent with this State s long standing precedent; and (5) here, even though Father 2014 Supp. Ch. 14-39

never had custody in the first place, he is the child s natural parent and the underlying rationale is the same. The Court further noted that, even though, in accordance with IC 31-14-13-6, a party seeking a change of custody must persuade the trial court that modification is in the best interests of the child and that there is a substantial change in one or more of the factors that the court may consider under section 2 and, if applicable, section 2.5 of this chapter, (1) these are modest requirements where the party seeking to modify custody is the natural parent of a child who is in the custody of a third party; (2) inasmuch as, in accordance with B.H. at 287, the parent comes to the table with a strong presumption that a child s interests are best served by placement with the natural parent the first statutory requirement is met from the outset; and (3) because a substantial change in any one of the statutory factors will suffice, the interaction and interrelationship of the child with... the child s parents one of the grounds on which the trial court relied in this case satisfies the second statutory requirement. NOTE: The provisions of IC 31-14-13-6, IC 31-14-13-2, and IC 31-14-13-2.5 are substantively identical to IC 31-17-2-21(a), IC 31-17-2-8, and IC 31-17-2-8.5, respectively. In In Re Adoption of L.T., 9 N.E.3d 172, 177-9 (Ind. Ct. App. 2014), the Court reversed the Marion Superior Court, Probate Division s order dismissing or terminating Maternal Grandparents guardianship of their three-year-old granddaughter for lack of subject matter jurisdiction and granting immediate custody of the child to adjudicated Father, her only living parent. The Court remanded with instructions to conduct a hearing on the best interests of the child. Mother had been granted custody of the child in the Marion Circuit Court, Paternity Division, and Father was granted parenting time and ordered to pay child support. After Mother s death, Maternal Grandparents filed a petition in the Hamilton Superior Court seeking guardianship of the child. Attached to the petition was a waiver of notice of hearing and consent to the guardianship, purportedly bearing Father s notarized signature. Two months later, Father filed his motion to dismiss the guardianship in Hamilton Superior Court due to lack of subject matter and personal jurisdiction. The Marion Circuit Court, Paternity Division, then entered an order to transfer the guardianship matter and consolidate it with paternity proceedings in Marion Circuit Court; thereafter, the Hamilton Superior Court entered an order of transfer. Meanwhile, Maternal Grandparents had filed a petition to adopt the child in the Marion Superior Court, Probate Division. The Marion Circuit Court transferred the matter to the Marion Superior Court, Probate Division; all proceedings were then consolidated in the probate court. After hearing argument, the Marion Superior Court, Probate Division, issued its order providing that the Hamilton Superior Court lacked subject matter jurisdiction to enter any guardianship orders, terminated the guardianship, and ordered the child to be return to her father immediately. The L.T. Court was not persuaded that Father had an absolute right to custody upon the death of Mother, and determined that the trial court erred in not conducting a hearing on the best interests of the child and on changed circumstances that would warrant a modification of custody. Father argued that he was automatically entitled to custody of the child when Mother died. Father relied on IC 29-3-3-3, which provides that parents or a surviving parent have the right to custody of a minor without the appointment of a guardian; however, this statute provides for several exceptions, such as court orders from other custody proceedings or other proceedings authorized by law. The Court determined that the plain language in this statute did not give Father an absolute right to physical custody of the child regardless of a prior court order. Father argued that the language in the concurring opinion of In re Paternity of J.A.C., 734 N.E.2d 1057 (Ind. Ct. App. 2000) indicated that custody of the child should be immediately given to Father when Mother died. The Court determined that this language in the concurring opinion was dicta, and therefore was not binding law. The Court also noted that even in the case that Father cited, the trial court did not dispense with a hearing which inquired into the best interests of the child. 2014 Supp. Ch. 14-40

The L.T. Court further opined that case law, while indicating that the factor of a substantial change in circumstances is almost always met at the outset in a custody dispute between a parent seeking to regain custody and a non-parent seeking to retain custody because of the strong parental presumption, does not summarily dispense with the necessary inquiry into a child s best interests in a custody dispute between a parent and a non-parent. The Court noted that when a natural parent seeks to regain custody of his or her child from a non-parent, [t]he natural parent must meet a minimal burden of showing a change in a permissible custodial factor, but then the [non-parent] must prove by clear and convincing evidence that the child s best interests are substantially and significantly served by [continued placement with the non-parent]. (citing In re Paternity of K.I., 903 N.E.2d at 460-61). If the [non-parent] carries this burden, then custody of the child remains with the [non-parent]. Otherwise, custody must be modified in favor of the child s natural parent. (citing In re Paternity of K.I., 903 N.E.2d at 461). Since Father had signed a consent to guardianship after Mother s death and the order granting guardianship was valid, a hearing on the termination of the guardianship was necessary. Since no hearing was conducted, the record was devoid of any evidence of changed circumstances and any evidence of the best interests of the child indicating that the guardianship should be terminated. See this Supplement at III.B.1 and III.D.2 for further discussion of this case. In In Re I.E., 997 N.E.2d 358, 364-6 (Ind. Ct. App. 2013), the Court affirmed the trial court s order terminating the child s guardianship and granting custody of the child to Father. Guardians had taken the child home from the hospital after birth with the consent of Mother. Father filed a paternity action when the child was one month old. Guardians filed a guardianship action one month later. The trial court granted Guardians petition to intervene in the paternity action and also granted Father s petition to intervene in the guardianship action. From that point on, both cases were addressed at the same time. The trial court granted temporary guardianship to Guardians, and the child remained in the sole care and custody of Guardians until the child was about eight months old, when Father was granted visitation pursuant to the Indiana Parenting Time Guidelines. Following mediation, the parties reached an agreement that Guardians would have joint legal and physical custody of the child and Father and Guardians would have specific times allocated for parenting time. When the child was two years old, Father filed petitions to terminate the guardianship and to modify custody. After hearings, the trial court issued an order terminating the guardianship and granting visitation to Guardians in the paternity action pursuant to the Parenting Time Guidelines, with the exception that there would be only one week of extended visitation in the summer. Guardians appealed. The I.E. Court opined that Guardians failed to present evidence that the child s best interests would be substantially and significantly served by continued placement with Guardians to overcome the strong presumption that Father should have custody of the child. The Court observed that the evidence established that since the time he was apprised of the child s existence, Father had done exactly what the law and society expects of him when faced with the birth of a child born out of wedlock, he has vigorously and appropriately pursued what is right, to be a father to his son. The Court reversed the order granting visitation to Guardians, finding that the order was void, because courts have no authority to grant third-party visitation to persons other than stepparents or grandparents. In In Re Guardianship of L.R.T., 979 N.E.2d 688, 689-91 (Ind. Ct. App. 2012), trans. denied, the Court affirmed the trial court s order terminating the guardianship. Mother, the granddaughter of Guardians, gave birth to the older child in 2004 and to the younger child, who was diagnosed with Down s syndrome, in 2006. The younger child had significant delays in verbal communication. The father of the older child was not involved in the child s life, but Mother 2014 Supp. Ch. 14-41

married the younger child s father. Mother and Father had difficulty maintaining a residence and employment sufficient to support the children and Father s child from another relationship, who lived with Father s mother. After some lengthy visits, the children came to live with Guardians in September 2007. The guardianship was formalized in November 2007, so that Guardians could obtain medical insurance benefits for the children. The children thrived in Guardians care. Four years later, Mother filed a motion to terminate the guardianship. The Guardians objected to the proposed termination. The trial court heard evidence and granted Mother s petition. The Court noted that the parties agree that the reason for the children s placement with Guardians was Mother s and Father s lack of stable housing and employment. The Court cited the following evidence in support of the trial court s decision: (1) Father was currently employed in a factory and Mother was employed at Subway; (2) the parents had decided to buy a house that would provide suitable family accommodations; (3) Mother had made inquiries to address the younger child s special educational needs; (4) both children could be expected to make the necessary adjustments. The Court characterized Guardians strenuous argument that Mother and Father have shown instability in the past and likely cannot adequately address the younger child s special needs as an invitation to reweigh the evidence, which the Court is not permitted to do. Current case law holds that, in deciding whether to terminate a guardianship or third-party custodianship, the clear and convincing evidence standard must be used, and detailed and specific findings, rather than a generalized finding, are required. See this Chapter at VI.D. for a discussion of In Re Guardianship of B.H., 770 N.E.2d 283, 287-88 (Ind. 2002) and its impact on guardianship and third-party custody case determinations. The Court in In Re M.K., 867 N.E.2d 271, 275 (Ind. Ct. App. 2007), reversed and remanded the trial court s denial of Mother s petition to terminate the guardianship of her two children. The Court held that the presumption in favor of Mother obtaining custody of her daughters was not rebutted in that (1) there was absolutely no indication that, at the time of the hearing, Mother was an unfit parent; (2) Mother did not voluntarily abandon her daughters for any considerable length of time; and (3) there was no compelling, real, or permanent interests of the children that would be best served by their remaining in the custody of the guardians. When Mother and Father divorced in the 1990 s, Mother was awarded physical custody of the children. She married again and her new husband treated the children as his own. In September 2000, the children found Mother s husband dead of an overdose of prescription pills. Mother was so grief-stricken and depressed that she became suicidal, and in October 2000, she overdosed on prescription pills. The children were placed in foster care and adjudicated to be CHINS. Mother maintained contact with the children and reunification was ordered in June 2002. However, the day the children were scheduled to return home, Mother took an overdose of prescription pills, and the reunification was cancelled. Because of a statutory time requirement, a petition to terminate Mother s parental rights was filed, but because of the close bond between Mother and the children, an alternative permanency plan of guardianship by the children s aunt and uncle was put in place and the petition to terminate was dismissed. The aunt and uncle were granted guardianship of the children in August 2002. In April 2005, Mother filed a petition to terminate the guardianship. After a hearing in May 2006, the trial court denied the Mother s petition. Mother appealed. On appeal, the M.K. Court emphasized the existence of a presumption in favor of the parent in a third party custody dispute and that the third party bears the burden of overcoming this presumption by clear and cogent evidence. The Court noted that, here, (1) Mother left the children with their aunt and uncle in 2002 because of her depression and substance abuse; (2) the aunt and uncle were appointed the children s guardians in August 2002; (3) Mother has since completed two drug and alcohol recovery programs and has been sober since January 2003; (4) Mother attends four to seven AA or NA meetings per week, leads recovery groups, and 2014 Supp. Ch. 14-42

sponsors other members; (5) Mother continues to see a therapist regularly and takes medication for her depression; (6) Mother receives Social Security Disability benefits and will receive child support from the children s father; (7) Mother has been in a stable relationship for four years and lives in a house with room for the children; (8) Mother kept in regular contact with the children during the course of their guardianship; (9) Mother speaks to the children at least three times a week, and sometimes daily; and (10) the children have spent summers and holidays with Mother. In In Re Guardianship of J.K., 862 N.E.2d 686, 691-93 (Ind. Ct. App. 2007) (Crone, J., dissenting), the Court affirmed the termination of the guardianship of the child. The Court held that the trial court s termination of the guardianship was not clearly erroneous, where (1) the trial court concluded that the circumstances warranting the guardianship had changed and the guardianship should now be terminated; (2) the Court held it could not say that the guardians proved by clear and convincing evidence that the guardianship should continue; (3) the evidence of the current fitness of the parents was conflicting; and (4) the Court could not reweigh the evidence and judge the witnesses credibility. On appeal, the guardians challenged the propriety of the trial court placing the burden of proof on them, arguing that they had met their burden of proof when the guardianship was established and the parents should have had the burden of proving they were fit in subsequent requests to terminate the guardianship. The Court cited numerous cases which hold that, even when the parents file to reobtain custody of the child, the burden of proof stays with the guardian or third-party custodian and does not shift to the parent. Consequently, the Court concluded that, here, even though the parents filed the petition to terminate the guardianship, the guardians had the burden of proving the requirements set forth by the Indiana Supreme Court in In Re Guardianship of B.H., 770 N.E.2d 283 (Ind. 2002). The evidence showed the following: (1) the mother was now working and nearing the end of probation; (2) the father had qualified for some type of disability and was receiving payments; (3) the parents now had their own apartment; (4) the parents divorce proceedings had been dismissed; (5) the criminal cases and protective order against father were dismissed; and (6) no evidence of drug abuse was presented. On the other hand: (1) the parents were behind in their rent payments; (2) they could not afford a telephone; (3) they had been threatened and the father had been assaulted by a person involved in the prior criminal cases; and (4) the mother had lied to the welfare department to improperly receive benefits, and it was unknown if criminal charges would be filed as a result. In In Re Guardianship of A.R.S., 816 N.E.2d 1160, 1162-63 (Ind. Ct. App. 2004) (Crone, J., dissenting), the Court reversed and remanded the trial court s denial of the mother s petition to terminate the guardianship of her two children by the maternal grandfather and step-grandmother. In so doing, the Court held that a generalized finding that a placement other than with the natural parent is in a child s best interests will not be adequate to support such determination, and detailed and specific findings are required. Further, the Court reversed because, absent any findings and in light of confusion at the trial regarding what standard of review to apply to the action, the Court could not be certain that the proper standard of review, the clear and convincing evidence standard, was employed. Judge Crone dissented, stating that he does not agree the Court should expand the special findings requirement to subsequent guardianship proceedings once the threshold for establishing a guardianship has been met; and he believes such petitions should be treated the same as other petitions to modify custody. The A.R.S. Court stated two purposes for special findings of fact: (1) to provide the parties and the reviewing court with the theory upon which the case was decided; and (2) as a means of alerting parents of the reasons why their children are not being returned to their custody, thereby effectively putting the parents on notice as to what steps they must take before their children will be returned to them. The Court acknowledged that the statute does not require specific factual 2014 Supp. Ch. 14-43

findings, but relying on In Re Guardianship of B.H., 770 N.E.2d 283, 287 (Ind. 2002) (discussed at VI.D.3., this Chapter) noted our supreme court has explicitly mandated trial courts to issue detailed and specific findings when a child is placed in the care and custody of a person other than a natural parent. The Court applied the following B.H. standard: 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 is 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 convincing overcome by evidence proving that the child s best interests are substantially and significantly served by placement with another person.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. B.H. at 287 The Court in In Re Paternity of V.M., 790 N.E.2d 1005, 1008-09 (Ind. Ct. App. 2003) affirmed the trial court s denial of Father s petition to modify the permanent custody of his two children which had been previously placed with the maternal grandfather. The Court held that the record supported the conclusion that the presumption in favor of Father having custody of the children was rebutted by evidence of Father s past unfitness, voluntary abandonment of the children, long acquiescence in the grandfather s custody, and other factors that would rebut the strong presumption in favor of the Father; and that the best interests of the children were served by continued placement with the maternal grandparents. The Court relied on the standard to be applied in custody disputes between a natural parent and a third party as articulated by the supreme court in In Re Guardianship of B.H., 770 N.E.2d 283, 287 (Ind. 2002), which states in part: 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. The Court noted that, here, the trial court concluded that staying with the maternal grandparents was in the children s best interests, and it articulated the following specific reasons for its conclusion. In Roydes v. Cappy, 762 N.E.2d 1268, 1274-76 (Ind. Ct. App. 2002) (Riley, J., dissenting), the Court affirmed the trial court s denial of the parents petition for termination of guardianship. The Court opined that, although the guardianship was originally granted to obtain health insurance for the child, the Court could look beyond the original grounds for granting the guardianship in making its decision to terminate the guardianship. The Court concluded that the trial court had not abused its discretion in denying the parents petition to terminate, even though the trial court did not specifically find that the mother was unfit. The trial court had found the following: (1) the grandmother s concerns about the mother s inability to care for the child were valid; (2) the mother had a history of losing jobs and not paying bills; (3) the mother had been physically violent toward the grandmother; and (4) the mother had been physically violent towards the father in the child s presence. The Court further opined that a parent s very recent history of financial irresponsibility and employment instability, especially if it is consistent with an established pattern of such behavior, could be considered in determining whether a parent is presently fit to regain custody of a child. The Court noted that the mother had been unable to maintain her former residence and automobile even with the guardian s assistance, and that the mother s income was insufficient to meet the financial needs of herself and the child. 2014 Supp. Ch. 14-44

In Harris v. Smith, 752 N.E.2d 1283, 1288-90 (Ind. Ct. App. 2001), the Court affirmed the trial court s order modifying custody from the paternal grandparents to the mother. On appeal the grandparents claimed that the mother s agreement to place the child in the custody of the grandparents was tantamount to an admission of unfitness. The Court disagreed with this argument, but acknowledged that the trial court was required to consider the stability of the child in making its decision. The Court also opined that there is a constitutionally based preference that a parent, rather than a non-parent have custody when the parent has not been shown to be unfit. The Court also stated that a non-parent seeking custody is required to prove the parent s unfitness at the present time, not at some time in the past. The Court opined that the grandparents had not successfully rebutted the mother s presumptively superior right to custody with a clear and persuasive showing that the mother was presently unfit. The evidence supporting the trial court s decision included the following: (1) the mother s employment as assistant manager at a café where she could earn up to $600.00 per week; (2) the mother s employer s testimony that the mother was a good employee; (3) the mother had a two bedroom trailer home with her boyfriend and her son; (4) the maternal grandmother was available to baby-sit with the grandchild and to transport the mother to work because the mother s license was suspended; (5) the mother s testimony that she had stopped using drugs, but still drank beer; and (6) the mother s testimony that the child in this case had stated that she wanted to stay with her mother and brother. In In Re Guardianship of L.L., 745 N.E.2d 222, 229-31 (Ind. Ct. App. 2001), trans. denied, the Court reversed the trial court s denial of the mother s petition to terminate the paternal grandmother s guardianship of the child. The Court considered the relevant case law, the de facto custodian statutory amendments, and constitutional concerns and set forth the appropriate standard for courts to apply when considering a natural parent-third party child custody dispute. That standard provides: (1) there is a presumption in all cases that the natural parent should have custody of the child; (2) the third party bears the burden of overcoming the parental presumption by clear and cogent evidence; (3) evidence to rebut the presumption may, but does not need to 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; (4) 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; (5) if a decision to leave or place custody in the third party 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; (6) if the presumption is rebutted, then the trial court engages in a general best interests analysis; and (7) the trial court may, but is not required to be guided by the best interests factors listed in IC 31-14-13-2, IC 31-14-13-2.5, IC 31-17-2-8, and IC 31-17-2-8.5, if the proceeding is not explicitly governed by them. The L.L. Court also provided other guidance regarding custody disputes involving a third party. Following a statutory interpretation analysis, the Court held that the intent of the de facto custodian 1999 amendments (IC 31-14-13-2.5 and IC 31-17-2-8.5) was not to displace the parental preference presumption, but was to clarify that a third party may have standing in certain custody proceedings, and that it may be in a child s best interests to be placed in that party s custody. Further, the Court noted that, while custody evaluations may be a useful tool in resolving parent-third party child custody disputes, when the evaluation does not consider the parental presumption, its ultimate custody recommendation should be given less deference than it might be in a custody dispute between two natural parents. The Court instructed that, in such a case, the trial court should look beyond the recommendation to determine if the report contains evidence 2014 Supp. Ch. 14-45

of parental unfitness, abandonment, or other wrongdoing or of compelling, real, and permanent interests of the child that require his or her custody with a third party. See In Re Guardianship of K.T., 743 N.E.2d 348 (Ind. Ct. App. 2001) (Court stated that Grandparent Visitation Act was the exclusive vehicle through which the former guardians of the child, the maternal grandparents, should have been granted visitation with the child). See also In Re Guardianship of J.E.M., 870 N.E.2d 517 (Ind. Ct. App. 2007) (finding that any right to visitation with child which Maternal Grandmother may have is provided by Grandparent Visitation Act (GVA), IC 31-17-5, and, although her visitation was not originally granted in accordance with GVA, inasmuch as no party objected to original order, it cannot now be challenged on basis that it was not issued in compliance with the GVA). IX. E. Appellate Review Standard In In Re Guardianship of L.R.T., 979 N.E.2d 688, 689 (Ind. Ct. App. 2012), trans. denied, a termination of guardianship case, the Court observed that the trial court may terminate any guardianship when the guardianship is no longer necessary. The Court explained the following process concerning appellate review: (1) when the trial court has entered findings and conclusions pursuant to Indiana Trial Rule 52, the Court first determine whether the evidence supports the findings, and then considers whether the findings support the judgment; (2) the findings and judgment will not be set aside unless they are clearly erroneous; (3) a judgment is clearly erroneous when it is unsupported by the conclusions drawn, and conclusions are clearly erroneous when they are not supported by findings of fact; (4) a judgment is also clearly erroneous when the trial court has applied the wrong legal standard to properly found facts; (5) the Court will neither reweigh the evidence nor assess witness credibility; (6) the Court will consider only the evidence that supports the trial court s judgment together with all reasonable inferences. In K.I. Ex Rel. J.I. v. J.H., 903 N.E.2d 453, 457 (Ind. 2009), a paternity case in which the Supreme Court affirmed the trial court s order modifying custody of the child from the maternal grandmother to the father, the Court observed that it reviews custody modifications for abuse of discretion with a preference for granting latitude and deference to our trial judges in family law matters. Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002). The Court said that on appeal it will not set aside the trial court s findings or judgment unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of witnesses. See the following cases on appellate review of trial court orders modifying third party custody: In Re I.E., 997 N.E.2d 358, 361 (Ind. Ct. App. 2013) (Court quoted appellate review standard enunciated in K.I. at 457); In Re Paternity of A.S., 984 N.E.2d 646, 651 (Ind. Ct. App. 2013) trans. denied (Court said that, in order to determine that a finding or conclusion is clearly erroneous, Court must come to the firm conviction that a mistake has been made); Parks v. Grube, 934 N.E.2d 111, 114 (Ind. Ct. App. 2010) (Court said that [r]eversal 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, quoting In Re Guardianship of B.H., 770 N.E.2d 283, 288 (Ind. 2002)). X. ASSISTED GUARDIANSHIP FOR CHINS In 2005, 470 I.A.C. 3-10.5-1 through 13 was transferred to 465 I.A.C. 2-8-1 through 13. There have been no other changes to the codification of the Indiana assisted guardianship program since publication of the CHINS Deskbook 2001. X. A. Child Eligibility 2014 Supp. Ch. 14-46

X. B. Guardian s Eligibility X. C. County Office of Family and Children Responsibilities and Duties X. D. Monetary Payments to Guardians X. E. Guardian s Responsibilities and Duties X. E. 1. Cooperation With Office of Family and Children and Title IV-D Program X. E. 2. Health Insurance X. E. 3. Notification of Additional Proceedings X. F. Terminating Assisted Guardianship X. G. Local Subsidized Guardianship For CHINS 2014 Supp. Ch. 14-47