J.S. v. M.C. (mem. dec.) ( 2018 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jul 25 2018, 9:08 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE
Theo Ciccarelli Cornetta Justin K. Clouser
Beth Silberstein Kokomo, Indiana
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
J.S., July 25, 2018
Appellant-Respondent, Court of Appeals Case No.
34A04-1711-MI-2715
v. Appeal from the Howard Superior
Court
M.C., The Honorable George A.
Appellee-Petitioner Hopkins, Judge
Trial Court Cause Nos.
34D04-1705-MI-377, 34D04-1705-
MI-379
Altice, Judge.
Case Summary
[1] J.S. (Petitioner) appeals the trial court’s denial of her petition for third-party
visitation with M.C.’s (Mother) fraternal twins (the Children).
Court of Appeals of Indiana | Memorandum Decision 34A04-1711-MI-2715 | July 25, 2018 Page 1 of 8
[2] We affirm.
Facts & Procedural History
[3] Petitioner and Mother met while both were living in Kentucky and began
dating in 2005. Mother moved back to Indiana in 2006 after her father had a
massive heart attack. The couple broke up at that time but continued to
communicate and eventually rekindled their relationship. Petitioner moved to
Indiana in July 2007 and began living in Mother’s home. Without marriage as
an option in Kentucky or Indiana at the time, the couple had a commitment
ceremony on September 8, 2007. Shortly thereafter, they executed reciprocal
wills and powers of attorney. Additionally, Mother was added to Petitioner’s
health insurance.
[4] From the start of their relationship, Mother expressed her long-held desire to
have children. The couple consulted fertility doctors and Mother eventually
went through several rounds of artificial insemination and then a round of in
vitro fertilization (IVF). All of these attempts to become pregnant failed, which
took a toll on the couple’s relationship. Petitioner and Mother ended their
relationship in 2010, with Petitioner moving out and purchasing her own home.
[5] Despite the breakup, Mother continued with her quest to become pregnant.
She discussed her decision with friends and family and indicated a preparedness
to be a single parent. Mother eventually obtained a loan from her parents to
pursue additional IVF treatments. Around December 2011, Mother and her
mother had an initial appointment with a different fertility doctor. The first
Court of Appeals of Indiana | Memorandum Decision 34A04-1711-MI-2715 | July 25, 2018 Page 2 of 8
IVF attempt with the new doctor failed in early 2012, but the second attempt
was successful a few months later.
[6] Mother and Petitioner had begun talking again in 2012 and were back in an
intimate relationship by the time of Mother’s successful IVF round. The
couple, however, continued to maintain separate residences. Petitioner
attended doctor appointments with Mother and was in the operating room
when the Children were born on December 12, 2012. Petitioner cut one of the
umbilical cords. After Mother and the Children returned home, Petitioner
assisted around the house and with their care, as did others. Petitioner spent
several nights a week at Mother’s home over the next several months.
[7] Mother returned to work when the Children were about four months old, and
she hired a nanny, Kelly Minglin, to care for them and do household chores.
Minglin, who was with the family for about two years, viewed Mother as the
Children’s only parent. Minglin, however, observed Petitioner at times provide
care for the Children. At no point did Petitioner pay Minglin or otherwise
provide financial support for the care of the Children.
[8] The couple permanently ended their romantic relationship in 2013, just prior to
the Children’s first birthday. They remained friends, and Petitioner continued
to be involved in Mother and the Children’s lives, including sometimes going
on vacations and spending holidays with them. Once the Children started
preschool, Petitioner, whom the Children referred to as “Dot”, picked them up
from school and watched them on Monday evenings so that Mother could run
Court of Appeals of Indiana | Memorandum Decision 34A04-1711-MI-2715 | July 25, 2018 Page 3 of 8
errands or work late. Rita Daily, a family friend, did the same for Mother on
Tuesday nights. Daily, Petitioner, and others often assisted on other nights too.
[9] Mother’s friendship with Petitioner began to slowly sour in the summer of
2016, and Mother started to reduce the family’s contact with her. Petitioner,
however, continued to watch the Children on Mondays and even attended a
Thanksgiving meal with Mother, the Children, and Mother’s extended family.
Following a heated conversation on December 12, 2016, Mother cut all ties
with Petitioner and refused any further contact between Petitioner and the
Children. Mother felt she was acting in the best interests of the Children even
though they were bonded with Petitioner.
[10] On April 6, 2017, under a separate cause number for each child, Petitioner filed
a verified third-party petition for parenting time. The causes proceeded in
tandem and were heard together, with evidentiary hearings held on August 31
and September 22, 2017. The trial court took the matter under advisement and
then issued a written ruling in each cause on October 26, 2017, denying the
petitions. Petitioner appeals, and the causes have been consolidated on appeal.
Additional facts will be provided below as needed.
Discussion & Decision
[11] On review, we will set aside the trial court’s findings of fact and conclusions
only if they are clearly erroneous, giving due regard to the opportunity of the
trial court to judge the credibility of witnesses. A.C. v. N.J., 1 N.E.3d 685, 688
(Ind. Ct. App. 2013). “A judgment is clearly erroneous when the record
Court of Appeals of Indiana | Memorandum Decision 34A04-1711-MI-2715 | July 25, 2018 Page 4 of 8
contains no evidence supporting the findings, the findings fail to support the
judgment, or when the trial court applies an incorrect legal standard to properly
found facts.” Id. “As we have repeatedly observed in child custody cases, trial
courts are in the position to see the parties, observe their conduct and
demeanor, and hear their testimony; therefore, their decisions receive
considerable deference on appeal.” Id. (quoting Nunn v. Nunn, 791 N.E.2d 779,
787 (Ind. Ct. App. 2003)).1
[12] To establish grounds for third-party visitation, a petitioner must first
demonstrate the existence of a custodial and parental relationship with the
children. Worrell v. Elkhart Cty. Office of Family & Children, 704 N.E.2d 1027,
1028 (Ind. 1998). After this threshold requirement is established, the petitioner
must show that visitation with petitioner would be in the best interests of the
children. Id. In other words, if the petitioner does not establish “the threshold
requisite of [a] custodial and parental relationship”, the court may not proceed
to a best interest determination. Id. (quoting Tinsley v. Plummer, 519 N.E.2d
752, 754 (Ind. Ct. App. 1988)). The threshold requirement recognizes the
constitutional dimension of parental rights and the well-established
presumption that “a fit parent acts in the child’s best interests in making
decisions concerning visitation with third parties.” A.C., 1 N.E.3d at 697.
1
Pure questions of law are reviewed de novo. Id. at 689. In this case, however, the issues turn on the facts.
Court of Appeals of Indiana | Memorandum Decision 34A04-1711-MI-2715 | July 25, 2018 Page 5 of 8
[13] Here, Petitioner clearly fell within a general class of individuals to which third-
party visitation may be awarded. See id. at 697 (former same-sex partner had
standing to seek visitation where “parties originally intended for the biological
mother’s partner to fulfill the role of the child’s second parent and actively
encouraged the development of a parental bond between the partner and the
child”); c.f. Brown v. Lunsford, 63 N.E.3d 1057, 1064-65 (Ind. Ct. App. 2016)
(holding that trial court abused its discretion by granting visitation to mother’s
long-term, live-in boyfriend and distinguishing A.C., 1 N.E.3d 685, because the
same-sex couple in A.C. could not be legally married in Indiana at the time of
their domestic relationship). Petitioner, however, was still required to establish
that she in fact had a custodial and parental relationship with the Children.
[14] Petitioner’s appellate argument is largely based on her assertions that the
Children “were born of her relationship with [Mother]” and that the two co-
parented the Children. Appellant’s Brief at 9. But Mother presented ample
evidence to the contrary. Further, this case is easily distinguishable from A.C.,
where:
Mother and Partner entered into a same-sex domestic
relationship and lived together for several years. They had a
commitment ceremony. They decided together to have a child
and that Mother would carry the child conceived through
artificial insemination. Partner was present at the child’s birth,
and the three lived together as a family. The child referred to
Mother and Partner as “Mama” and “Mommy,” respectively.
Mother listed Partner as the child’s co-parent on school
enrollment paperwork, and the two discussed Partner adopting
Court of Appeals of Indiana | Memorandum Decision 34A04-1711-MI-2715 | July 25, 2018 Page 6 of 8
the child. When the child was two years old, Mother and
Partner ended their relationship.
Brown, 63 N.E.3d at 1064-65 (internal citation to A.C. omitted).
[15] Like in A.C., the parties had lived together for a number of years, had solidified
their relationship with a commitment ceremony because same-sex marriage was
not yet legal, and had decided to have children together, with Mother carrying
any children. Additionally, Petitioner was in the operating room when the
Children were born, and she cut one of the umbilical cords.
[16] Unlike A.C., however, the couple broke up for over a year during which time
Mother continued to pursue having children without Petitioner. Mother
obtained a loan from her parents, sought out a new fertility doctor, and began
IVF treatments with the assistance of her family. Mother had already begun the
eventually-successful IVF round when she and Petitioner rekindled their
relationship. Mother then welcomed Petitioner’s involvement in the doctor
appointments and the birth of the Children, but she made clear that Petitioner
would have no “formal legal right over the [C]hildren”. Appellant’s Brief at 7.
After the birth, Petitioner maintained a separate residence for herself, spending
several nights per week at Mother’s. Petitioner helped with the Children but
did not provide financially for them. The parties ended their intimate
relationship before the Children reached the age of one. Although Petitioner
remained actively involved with the family over the next few years, she did not
do so in a custodial or parental manner. The facts favorable to the judgment
Court of Appeals of Indiana | Memorandum Decision 34A04-1711-MI-2715 | July 25, 2018 Page 7 of 8
reveal that Mother has always been a single parent to the Children functioning
with the loving assistance of others, including Petitioner.
[17] Contrary to Petitioner’s assertion on appeal, the trial court did not
discriminatorily focus on her sexual orientation or fail to relate its findings to its
judgment. The trial court’s findings properly focus on facts relevant to its
determination that Petitioner did not act in a custodial and parental relationship
with regard to the Children, and the nature of Mother and Petitioner’s
relationship was relevant to this determination. Most notably, Mother
unilaterally decided to initiate the successful IVF round with the intent to be a
single parent, Petitioner never provided financially for the Children, Mother
and Petitioner did not live as a family unit after Mother gave birth to the
Children, and Mother made all parental decisions.
[18] Under the specific facts of this case, the trial court’s conclusion that Petitioner
failed to demonstrate the existence of a custodial and parental relationship
between herself and the Children is not clearly erroneous. Accordingly,
Petitioner lacked standing to seek visitation with the Children and no best-
interest determination was required.
[19] Judgment affirmed.
Najam, J. and Robb, J., concur.
Court of Appeals of Indiana | Memorandum Decision 34A04-1711-MI-2715 | July 25, 2018 Page 8 of 8