Harris v. Smith, 47A01-0011-JV-405.

• Court: Court of Appeals of Indiana
• Citation: 752 N.E.2d 1283
• Docket Number: No. 47A01-0011-JV-405.,47A01-0011-JV-405.
• Parties: Carl J. HARRIS and Carolyn Harris, Appellants (Intervenors Below), v. Rebekah Lynn SMITH, Appellee (Respondent Below), and Jackie Devron Harris, Nominal Appellee (Petitioner Below).
• Decision Date: 14 August 2001

752 N.E.2d 1283

Carl J. HARRIS and Carolyn Harris, Appellants (Intervenors Below),
v.
Rebekah Lynn SMITH, Appellee (Respondent Below), and
Jackie Devron Harris, Nominal Appellee (Petitioner Below)

No. 47A01-0011-JV-405.

Court of Appeals of Indiana.

August 14, 2001.

Rehearing Denied September 4, 2001.

752 N.E.2d 1286

George A. Lohmeier, Allen Wellman McNew, Greenfield, IN, Attorney for Appellant

Thomas A. Berry, Bloomington, IN, Attorney for Appellee.

752 N.E.2d 1284

752 N.E.2d 1285

OPINION

SULLIVAN, Judge.

Appellants, Carl J. and Carolyn Harris (the Harrises), challenge the trial court's order granting custody of their minor grandchild, A.S.H., to Rebekah Lynn Smith, the child's mother. The Harrises present two issues for our review, which we restate as: 1) whether the trial court used an incorrect standard of law in determining that Rebekah should have custody of A.S.H.; and 2) whether the trial court's decision amounted to an abuse of discretion.

We affirm.

The record reveals that A.S.H. was born to Rebekah on April 22, 1996. On May 26, 1997, Rebekah was convicted of misdemeanor possession of marijuana. In April 1998, by agreement of the parties, the Harrises' son, Jackie Devron Harris, established paternity of A.S.H. On May 28, 1998, after Rebekah had tested positive for marijuana use, the State petitioned to revoke the suspended sentence she received for marijuana possession. On August 31, 1998, Rebekah and A.S.H. moved into the Harrises' home. On March 30, 1999, Rebekah pleaded guilty to operating a vehicle while intoxicated (OWI), and was given a suspended sentence. In May 1999, Rebekah left the Harrises' home to live with a girlfriend. Although Rebekah had custody of A.S.H., the Harrises cared for A.S.H. in their home after Rebekah moved out. On October 18, 1999, the State petitioned to revoke the suspended sentence Rebekah received for her OWI conviction because of her failure to pay court costs as provided for in her plea agreement.

At this point, Rebekah had no job, was being evicted from her residence, and was facing the possibility of incarceration for the OWI conviction. Thereafter, on December 2, 1999, Rebekah, A.S.H.'s father, and the Harrises filed a joint petition for modification of custody, wherein the parties agreed to give custody of A.S.H. to the Harrises. At approximately the same time, the Harrises gave Rebekah $5000 and an automobile and agreed to pay certain court costs and fines. The trial court issued an order granting the petition the same day it was filed.¹

The order granting the Harrises custody of A.S.H. stated that both parents "shall be entitled to visit [A.S.H.] at all reasonable and proper times agreeable to Carl J. Harris and Carolyn Harris." Record at 20. The Harrises initially allowed Rebekah to have unsupervised overnight visitations with A.S.H. However, they eventually tried to avoid contact with Rebekah, limited her visitation, and required her to come to their home to visit A.S.H. On February 6, 2000, Rebekah pleaded guilty to a charge of criminal mischief. On April

752 N.E.2d 1287

5, 2000, due to continuing problems with the allowed visitation, Rebekah wrote a letter to the trial court requesting custody of A.S.H. The trial court treated this as a pro se petition to modify custody. On May 9, 2000, Rebekah filed a formal petition requesting custody of A.S.H. On June 23, 2000, Rebekah was again arrested for OWI

Eventually, a hearing on Rebekah's petition to modify custody was held before a special judge. After the hearing, both parties filed briefs per the trial court's request. On November 13, 2000, the trial court entered an order awarding custody to Rebekah.² The Harrises now appeal.³

In Indiana, there has long been a presumption that a parent, rather than a third party, should have custody of his or her child. As noted by our Supreme Court in Duckworth v. Duckworth, 203 Ind. 276, 282-83, 179 N.E. 773, 775 (1932):

"Ordinarily a parent who is of good moral character and a proper person to have the custody of a child and is reasonably able to provide for it is entitled to its custody as against other persons ... even though such others are in all respects suitable to have the custody, are much attached to the child, and better able to afford it material advantages and although the child is attached to and may be happier with such third person." (citations omitted).

See also Hendrickson v. Binkley, 161 Ind. App. 388, 393-94, 316 N.E.2d 376, 380 (1974), cert. denied, 423 U.S. 868, 96 S.Ct. 131, 46 L.Ed.2d 98 (1975); In re Custody of McGuire, 487 N.E.2d 457, 460 (Ind.Ct. App.1985); Sebastian v. Sebastian, 524 N.E.2d 29, 34 (Ind.Ct.App.1988); Teegarden v. Teegarden, 642 N.E.2d 1007, 1009 (Ind.Ct.App.1994) (all holding that it is presumed it will be in the best interests of the child to be placed in the custody of the natural parent).

The Harrises cite Duckworth for the proposition that once the parent has lost custody by judicial determination, the parent is required to show a change in circumstances, his or her reformation, and that the best interests of the child would be served by such custody modification. 203 Ind. at 285, 179 N.E. at 776. However, in McGuire this court held that a non-parent who seeks to displace the parent as custodian must rebut the parent's presumptively superior right to custody. 487 N.E.2d at 460. Even when a parent initiates an action to re-obtain custody of a child who has been in the custody of a third party, the burden of rebutting this presumption remains upon the third party. Id. at 460-461.

The Harrises ask us to reject or modify McGuire, arguing that when there has been a judicial finding of parental unfitness, no presumption in favor of the parent should exist. However, it is not necessary for us to reject or modify McGuire; a third party may rebut the parent's presumptively superior right to custody by showing, "by clear and cogent evidence, that the parent is unfit...." Id. at 460 (emphasis supplied). Here, the trial court did not find Rebekah to be an unfit parent. Nevertheless, the Harrises argue:

752 N.E.2d 1288

"[W]hen parents get to the point when they are ready to concede that it is not in the best interest of their children to be in their care, and responsible third parties apply to a court to ratify that decision with a judicial decree of custody, they ought no longer be allowed simply to change their mind at any moment and walk back into a courtroom and have it presumed that they are entitled to have their child returned to them, all as though they had never lost them or given them up in the first place." Appellant's Brief at 16.

Thus, the Harrises claim Rebekah's agreement to put A.S.H. in their custody is tantamount to an admission of unfitness. We do not agree. As recently noted by this court in Froelich v. Clark, 745 N.E.2d 222, 233 (Ind.Ct.App.2001), trans. denied:

"For the sake of children, society should encourage parents who are experiencing difficulties raising them to take advantage of an available `safety net,' such as a grandparent who is willing to accept temporary custody of a child.

...