Bristow v. Konopka, 1--575--A--96

• Decision Date: 29 October 1975
• Docket Number: No. 1--575--A--96,1--575--A--96
• Citation: 336 N.E.2d 397,166 Ind.App. 357
• Court: Indiana Appellate Court
• Parties: Marcella BRISTOW and Carma Hall, Movants-Appellants, v. Debra Sue KONOPKA, Guardian-Appellee.

Page 397

336 N.E.2d 397

166 Ind.App. 357

Marcella BRISTOW and Carma Hall, Movants-Appellants, v. Debra Sue KONOPKA, Guardian-Appellee.

No. 1--575--A--96.

Court of Appeals of Indiana, First District.

Oct. 29, 1975.

Rehearing Denied Nov. 25, 1975.

John D. Clouse, Evansville, for movants-appellants.

Bates, Warrum & Noffsinger, Evansville, for guardian-appellee.

LOWDERMILK, Judge.

Plaintiffs-appellants Marcella Bristow (Bristow) and Carma Hall (Hall) appeal the trial court's overruling of their petition to set aside the appointment of a guardian.

FACTS:

On December 28, 1971, Misty Dawn Konopka was born to Gale and Debra Sue Konopka. The evidence is clear that Debra's mother-in-law, Marjorie Konopka, often helped care for Misty and that Misty was left in Marjorie's exclusive care on numerous occasions. ¹ On August 15, 1974, Marjorie legally adopted Misty, and the rights and obligations of the biological parents with regard to the child were thereby relinquished. ²

Marjorie subsequently died on December 13, 1974, and Misty was cared for by Bristow (Misty's great aunt) and other members of Misty's extended family.

On December 17, 1974, Debra filed a petition to be appointed guardian for Misty, and said petition was granted that day without notice. The following day, the trial court issued an order directing that Misty be released to Debra's custody.

After Debra's appointment, Bristow and Shirley Ashby (Marjorie's sister) filed separate motions to set aside the appointment of Debra as guardian; each motion also contained a request that the movant be named guardian. Both motions were denied.

I.

Initially we must consider the standing of Hall as a party to this appeal. She at no time had legal custody of Misty. Further, she did not file a motion to set aside the appointment of a guardian, either separately or in conjunction with Bristow. While she was called as a witness, and was named in orders of the trial court, her first appearance as a litigant is in name only as a party to the motion to correct errors.

In support of her standing, Hall cites the following section of the Probate Code, which is included by reference in IC 1971, 29--1--18--3 (Burns Code Ed.) as part of the guardianship statutes:

'Any person considering himself aggrieved by any decision of a court having probate jurisdiction in proceedings under this (Probate) Code may prosecute an appeal to the court having jurisdiction of such appeal. Such appeal shall be taken as appeals are taken in civil causes. Executors, administrators, guardians and fiduciaries may have a stay of proceedings without bond.'

IC 1971, 29--1--1--22 (Burns Code Ed.)

We agree that the above section is applicable. State ex rel. Lacy v. Marion Probate Court (1962), 243 Ind. 30, 182 N.E.2d 416. Further we note that one need not be a party, and need only 'consider' himself aggrieved. While the question as to who may be an aggrieved party is a close one, given the nature of the proceedings in this case, we find Hall, under the above statute, has standing to join the present appeal.

II.

Bristow and Hall raise two questions in their brief:

1) Whether the proceeding to appoint a guardian was improper since they, and other interested persons, received no notice;

2) Whether the guardianship proceeding was improperly used to decide the issue of custody.

In support of the first alleged error, Bristow and Hall contend that they stand in loco parentis to Misty, and that the statute regulating notice in guardianship proceedings requires notice to those of such status.

Further, it is contended that the failure to provide notice violates federal and state constitutional guarantees.

Debra responds that the notice provisions do not require notice to Hall and Bristow. In addition, it is argued that even if the statute required notice to those standing in loco parentis, Hall and Bristow never alleged such status in the motion to correct errors, and cannot now assert it on appeal.

The statute specifying notice procedures reads, in part, as follows:

'Notice of hearing on petition for guardianship.--When an application for the appointment of a guardian is filed with the court, notice of the hearing shall be served as follows:

(a) When the application is for the appointed of a temporary or a successor guardian, no notice shall be served unless ordered by the court;

(b) When the application is for the appointment of a guardian for a minor, notice shall be served upon the parents or surviving parent of such minor, if the whereabouts of such minor's parents or surviving parent are known, but no other notice shall be necessary rules ordered by the court;

(c) When the application is for the appointment of a guardian for an incompetent person as defined in subsection (c)(2) of IC 1971, 29--1--18--1 notice of hearing shall be served upon the following unless they have signed the petition or have waived notice of the hearing;

(1) the incompetent, if over fourteen (14) years of age;

(2) the person having the care and custody of the incompetent, if any;

(3) any other person directed by the court.'

(Our emphasis.) IC 1971, 29--1--18--14 (Burns Code Ed., Supp.1974.)

We note that while a minor may be an incompetent (see, IC 1971, 29--1--18--1(c)(1)), subsection (c) above relates only to those insane, mentally ill or otherwise infirm.

There can be little dispute that subsection (b) clearly does not require notice to Bristow and Hall, as they are not the parents of Misty. The only question is whether notice should have been given to those who were temporarily caring for Misty. The court is clearly given the power, in subsection (b), supra, to require notice not specifically mandated by other language. In this regard, we must consider the contention that those in loco parentis should receive notice.

We find that the authority cited in support of the above contention is not persuasive. The case of Sturrup v. Mahan (1974), Ind., 305 N.E.2d 877 defines in loco parentis as the assumption of legal obligation without formal adoption. The conclusion reached by the Supreme Court based on that definition was that a legal guardian stands in loco parentis, and is a de facto parent. While Hall and Bristow may have acted under moral obligation, they have assumed no legal obligations which would bring them within the definition cited in their authority. See also, Treschman v. Treschman (1901), 28 Ind.App. 206, 61 N.E. 961.

We must yet, however, address a problem raised by the peculiar facts of this case. The biological parents of Misty Dawn Konopka, by consenting to her adoption, relinquished all rights...