In re Guardianship of BH

• Decision Date: 21 June 2002
• Docket Number: No. 67S05-0101-JV-36.,67S05-0101-JV-36.
• Citation: 770 N.E.2d 283
• Parties: In re the GUARDIANSHIP OF B.H. and S.H., minor children.
• Court: Indiana Supreme Court

770 N.E.2d 283

In re the GUARDIANSHIP OF B.H. and S.H., minor children.

No. 67S05-0101-JV-36.

Supreme Court of Indiana.

June 21, 2002.

Daniel F. Zielinski, Deckard & O'Brien, Danville, Indiana, Attorney for Appellant.

Sharon L. Hammond, Greencastle, Indiana, Attorney for Appellee.

On Petition To Transfer

DICKSON, Justice.

In this appeal, the father of two children challenges an order appointing their stepfather as permanent guardian following the death of the children's mother. The Court of Appeals reversed. In re Guardianship of B.H., 730 N.E.2d 743 (Ind.Ct. App.2000). We granted transfer, Holley v. Childress, 753 N.E.2d 1 (Ind.2001), and now affirm the trial court.

B.H. and S.H. were born to Edward and Sherrie Holley during their marriage. Edward and Sherrie separated in 1991. The children moved with their mother to Indiana. During this time, their father, who was serving in the Army, was stationed in Germany and Boston. The children remained with their mother, who began living with John Childress, Sr., in September 1994. The Holleys' marriage was dissolved in December 1996 pursuant to a decree reflecting the parties' agreement that the mother have custody of the children and the father have specified visitation. The decree ordered the father to pay child support. The mother and Childress were married in August 1997. The mother died on December 22, 1998, when the children were 13 and 14 years old. Childress, as their stepfather, immediately sought and obtained an emergency order appointing him temporary guardian of the children. On January 11, 1999, the father filed a petition to terminate the temporary guardianship. Three days later, the stepfather petitioned for appointment as permanent guardian, which the father sought to dismiss. Following a contested hearing on the pending motions, the trial court denied the father's motions and appointed the stepfather as permanent guardian.

In his appeal, the father contends that the trial court abused its discretion and that the evidence does not establish any of the factors required in Hendrickson v. Binkley, 161 Ind.App. 388, 316 N.E.2d 376 (1974). The stepfather acknowledges that Hendrickson is a pivotal case, but argues that the evidence amply supported several of its required factors.

Indiana law has long recognized that "natural parents are entitled to the custody of their minor children, except when they are unsuitable persons to be entrusted with their care, control, and education." Gilmore v. Kitson, 165 Ind. 402, 406, 74 N.E. 1083, 1084 (1905); see also Ind.Code § 29-3-3-3, -6 (implicitly recognizing the natural parent presumption). Unless otherwise determined in a dissolution decree or in another proceeding authorized by law, a surviving parent has the right to custody of minor children. Ind.Code § 29-3-3-3. In Gilmore, a natural father sought the custody of his daughter following the death of his wife, whose will expressed her desire that her sister, not her husband, have custody of their daughter. Reversing an award of custody to the sister, this Court noted that "the interest of the child is the paramount consideration" in settling disputed custody claims, but emphasized that "we can not conceive that it should be invoked or enforced against a parent under no disabilities, unless he has forfeited his right by misconduct, or lost it by voluntary relinquishment or by long acquiescence in the care and custody of his child by another." 165 Ind. at 407, 74 N.E. at 1084. The opinion stated:

The principle of the welfare of the child may be applied to defeat the claims of a parent when he has voluntarily relinquished to others the custody and care of his child until the affections of the child and its foster parents have become so firmly interwoven that to sunder them would seriously mar and endanger the future happiness and welfare of the child.

Id. at 407-08, 74 N.E. at 1084.

While this Court has consistently recited that the child's interests are paramount, our cases reflect a variation in the relative consideration given to the rights of the natural parent. In contrast to the elevated concerns for the natural parents emphasized in Gilmore, other cases appear to have given this factor diminished weight. In Glass v. Bailey, 233 Ind. 266, 118 N.E.2d 800 (1954), we affirmed a judgment adverse to the natural mother, observing that "the natural rights of the parent are entitled to due consideration, but the welfare and happiness of the child is the paramount consideration." 233 Ind. at 267-68, 118 N.E.2d at 801. We similarly noted in Gilchrist v. Gilchrist, 225 Ind. 367, 75 N.E.2d 417 (1947), that "the rights of parents, however, are not absolute. They must yield to the welfare of the child. Its welfare and best interest are the paramount and controlling considerations...." Id. at 372, 75 N.E.2d at 419.

Both Glass and Gilchrist stress that these cases are best placed in the sound discretion of the trial court. "Hard and fast rules of law do not prevail. The question presented rests upon the exercise of a sound judicial discretion by the trial judge." Glass, 233 Ind. at 268, 118 N.E.2d at 801. "The disposition of children is not controlled by hard and fast rules of law but by the exercise of the sound judicial discretion of the court confronted with the problem. Review by an appellate court of such disposition is limited to the question of abuse of judicial discretion." Gilchrist, 225 Ind. at 372, 75 N.E.2d at 419.

The Court of Appeals has also struggled with this issue. In Hendrickson v. Binkley, 161 Ind.App. 388, 316 N.E.2d 376 (1974), the Court of Appeals restated the Gilmore considerations in the following "three step approach":

First, it is presumed it will be in the best interests of the child to be placed in the custody of the natural parent. Secondly, to rebut this presumption it must be shown by the attacking party that there is, (a) unfitness, (b) long acquiescence, or (c) voluntary relinquishment such that the affections of the child and third party have become so interwoven that to sever them would seriously mar and endanger the future happiness of the child. The third step is that upon a showing of one of these above three factors, then it will be in the best interests of the child to be placed with the third party.

161 Ind.App. at 393-94, 316 N.E.2d at 380. To overcome the presumption favoring the natural parent, one of the factors in the second step must be shown by "clear and cogent evidence." Id. at 395, 316 N.E.2d at 381. Some of its opinions follow the parental presumption approach of Hendrickson. See, e.g. In re Guardianship of R.B., 619 N.E.2d 952, 954 (Ind.Ct.App. 1993)

; In re Guardianship of Riley, 597 N.E.2d 995, 997 (Ind.Ct.App.1992); In re Custody of McGuire, 487 N.E.2d 457, 460 (Ind.Ct.App.1985); Kissinger v. Shoemaker, 425 N.E.2d 208, 210-11 (Ind.Ct.App. 1981); In re Guardianship of Phillips, 178 Ind.App. 220, 224, 383 N.E.2d 1056, 1059 (1978).

Beginning with Turpen v. Turpen, 537 N.E.2d 537 (Ind.Ct.App.1989), however, several opinions by the Court of Appeals have avoided a strict application of the Hendrickson methodology. In Turpen, the Court of Appeals criticized this methodology because it "suggest[ed] to litigants that the trial court must employ a mechanical approach in evaluating the evidence before it." Id. at 539-40 n. 2. Turpen instead applied an ostensibly simplified analysis:

The question before us then is whether there is any evidence in favor of the trial court's determination that the presumption the interest of the child would best be served by placing him in the custody of the natural mother had been sufficiently rebutted by the evidence.

537 N.E.2d at 539. Several opinions of the Court of Appeals have expressed a preference for the Turpen formulation. See e.g., In re Marriage of Huber, 723 N.E.2d 973 (Ind.Ct.App.2000)

(agreeing with trial court that there may be circumstances outside the three Hendrickson factors that could support granting custody to a nonparent); In re Paternity of L.K.T., 665 N.E.2d 910, 912 (Ind.Ct.App.1996)(approving Turpen view that the child's best interests is the preeminent concern, prevailing over other considerations); Atteberry v. Atteberry, 597 N.E.2d 355, 357 (Ind.Ct.App.1992)(declaring "[o]ur law clearly prefers to consider the best interests of the child over the presumption that custody must be in a natural parent"). We believe the Turpen approach is inadequate.

Despite the differences among Indiana's appellate court decisions confronting child placement disputes between natural parents and other persons, most of the cases generally recognize the important and strong presumption that the child's best interests are ordinarily served by placement in the custody of the natural parent. This presumption does provide a measure of protection for the rights of the natural parent, but, more importantly, it embodies innumerable social, psychological, cultural, and biological considerations that significantly benefit the child and serve the child's best interests. To resolve the dispute in the caselaw regarding the nature and quantum of evidence required to overcome this presumption, we hold that, before placing a child in the custody of a person other than the natural parent, a trial court must be satisfied by clear and convincing evidence that the best interests of the child require such a placement. The trial court must be convinced that placement with a person other than the natural parent represents a substantial and significant advantage to the child. The presumption will not be overcome merely because "a third party could provide the better things in life for the child." Hendrickson, 161 Ind.App. at 396, 316 N.E.2d at 381. In a proceeding to determine whether to place a child with a person other than the natural parent, evidence establishing the natural parent's unfitness or acquiescence, or demonstrating that a strong emotional bond has formed between the child...