In re Paternity of L.J.S.

• Decision Date: 16 March 2010
• Docket Number: No. 69A01-0904-JV-181.,69A01-0904-JV-181.
• Citation: 923 N.E.2d 458
• Parties: In re the Matter of the PATERNITY OF L.J.S., M.W.S., Father, Appellant-Respondent, v. M.S.S., Mother, Petitioner, L.S. and B.S., Maternal Grandparents, Appellees-Intervenors.
• Court: Indiana Appellate Court

923 N.E.2d 458

In re the Matter of the PATERNITY OF L.J.S M.W.S., Father, Appellant-Respondent, v. M.S.S., Mother, Petitioner L.S. and B.S., Maternal Grandparents, Appellees-Intervenors.

No. 69A01-0904-JV-181.

Court of Appeals of Indiana.

March 16, 2010.

Karl L. Mulvaney, Nana Quay-Smith, Natalie M. Snyder, Bingham McHale LLP, Indianapolis, IN, Attorneys for Appellant.

R. Patrick Macgrath, Merritt K. Alcorn, Alcorn Goering & Sage, Madison, IN, Attorneys for Appellees.

OPINION

KIRSCH, Judge.

L.J.S. was born out of wedlock. In a custody dispute between L.J.S.'s maternal grandparents, L.S. and B.S. ("Grandparents"), and his natural father, M.W.S. ("Father"), the trial court granted Grandparents' request for custody. Father appeals, raising the following restated issue: whether the important and strong presumption that L.J.S.'s interests are best served by placement with Father has been clearly and convincingly overcome by evidence proving that the child's best interests are substantially and significantly served by placement with Grandparents.

We hold that it has not. Accordingly, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

On January 3, 2006, M.S.S. ("Mother") gave birth to L.J.S. At the time, Mother lived with Grandparents in their Holton, Indiana home and returned there with L.J.S. upon their release from the hospital. On September 8, 2006, Mother filed a petition to establish paternity and child support. That same day, Mother and Father (together, "Parents") entered into an Agreed Judgment of Paternity ("Agreed Order").

The Agreed Order granted custody of L.J.S. to Mother and granted Father visitation "as agreed by the parties but no less than the Indiana Shared Parenting Time Guidelines." Appellant's App. at 23. As part of the Agreed Order, the trial court established a $192.00 weekly child support obligation and directed Father to reimburse Medicaid and Mother for the expenses associated with L.J.S.'s birth.

Mother and L.J.S. continued to live with Grandparents for the first fifteen months of L.J.S.'s life. In April 2007, Mother and L.J.S. moved out of Grandparents' home to live in Madison, Indiana, with Mother's new boyfriend. Grandparents and Mother mutually agreed that L.J.S. would continue to stay at Grandparents' home three nights a week, both because L.J.S. was "imbedded" in Grandparents' home and because it was convenient in light of Mother's work schedule and L.J.S.'s daycare schedule. Tr. at 29. This arrangement continued for the eight-month period that Mother and L.J.S. lived in Madison. On January 1, 2008, L.J.S. and Mother moved back to Grandparents' house, where they lived for the next six months. In June 2008, Mother moved to Kentucky but, by mutual agreement of Mother and Grandparents, L.J.S. remained with Grandparents.

Meanwhile, in September 2006, following the entry of the Agreed Order, Father began regular visitation with L.J.S. Initially, Father would pick L.J.S. up every other weekend and would take the child to Father's home for a day and would bring him back. During the first six months of 2007, Father continued to live and work in New Albany, Indiana. To make more money, Father moved to Carrollton, Kentucky in June 2007 to work for a power plant, but was laid off three months later. Occasionally, work commitments required Father to call Mother and reschedule his weekend visits. Father testified that he and Mother "worked very well together on this ... and there [were] some weekends [he] would go two (2) weekends in a row at that time." Tr. at 161.

Father then moved to Winchester, Indiana, where he worked construction from September 2007 until June 2008 and earned $21.00 per hour. Father moved to Winchester to be closer to home. While in Winchester, Mother and Father arranged Father's visitation, and L.J.S. had overnight visits with Father every other weekend.

Father's child support payments were made through employer withholdings. On August 29, 2007, the State filed a petition for contempt against Father, alleging he was $1,398.05 in arrears on his child support payments.

On June 2, 2008, Father went to Oklahoma for job training. While away, maternal grandfather, L.S. ("Grandfather"), called Father to inform him that Mother had moved to Kentucky and had left L.J.S. in Grandparents' care. Grandfather stated that, in order to have some type of legal recourse in case something would happen to L.J.S., Grandparents' attorney had prepared guardianship papers, which Mother had signed. Initially, Father also seemed agreeable to sign. About a week later, Father changed his mind and told Grandfather that he "[did not] want to sign those papers." Tr. at 44.

During Father's time in Oklahoma, Father was unable to visit with L.J.S., but was in constant contact with Grandfather. Father completed his training and returned from Oklahoma on July 11, 2008. Before his return, Father and maternal grandmother, B.S., agreed that Father's every-other weekend visitation would again commence. Father had a three-day visitation with L.J.S. on July 19, 2008, and planned to have visitation two weeks later.

After Father returned from Oklahoma, he contacted his attorney, who prepared a stipulation to: (1) grant Father sole legal and physical custody of L.J.S.; (2) preclude Mother from having any parenting time with L.J.S.; (3) forgive Father's arrearage; and (4) remove Mother's future obligation to pay child support. During the first week of August 2008, Father traveled to Kentucky and obtained Mother's signature on the stipulation. Believing that he had the right to have L.J.S. in his care, Father picked L.J.S. up from Grandparents' home on August 3, 2008, and took L.J.S. to visit Father's family in Tennessee.

On August 7, 2008, Father filed the signed stipulation with the trial court. The following day, the trial court "decline[d] to approve [the] stipulation," for the reason that it "provide[d] for no visitation and no child support without evidence to substantiate a deviation from the child support and parenting time guidelines." Appellant's App. at 53. After learning that, without the stipulation, he had no right to keep L.J.S. in his care, Father returned L.J.S. to Grandparents. Thereafter, Father paid the $1,635.00 in delinquent child support.

Grandparents filed petitions on August 13, 2008 requesting that they be named L.J.S.'s de facto custodians and granted legal custody of L.J.S. A few days later, Father filed his own petition for custody of L.J.S. Mother did not object to her custody being modified.

From August 18, 2008 through the January 15, 2009 custody modification hearing, Father worked in Kentucky, and earned "approximately $26.40 per hour for 40 hours [plus] ... some overtime every other weekend." Appellant's App. at 14. Father continued visitation with L.J.S. during this time.

On January 15, 2009, the trial court conducted a hearing on all pending motions and issued its findings of fact, conclusions thereon, and order on February 27, 2009 (the "Order"). The Order modified the custody of L.J.S. from Mother to Grandparents, and Parents were granted reasonable visitation pursuant to the Indiana Parenting Time Guidelines. Father filed his notice of appeal on March 16, 2009. On March 19, 2009, the trial court granted the Grandparents' petition that the findings be amended nunc pro tunc to reflect that Grandparents' petitions for recognition as de facto custodians and for change of custody had been granted.

Although a notice of appeal was filed, Father's prior counsel failed to timely file an appellant's brief, and the appeal was dismissed. Our court granted Father's petition for rehearing and allowed the appeal to be reinstated on September 24, 2009. Additional facts will be added as needed.

DISCUSSION AND DECISION

Father argues that the trial court erred in granting custody of L.J.S. to Grandparents rather than Father when Father did not abandon L.J.S., acquiesce to Grandparents' custody, or act as an unfit parent.¹

Pursuant to the Agreed Order, Mother was granted custody of L.J.S., and Father was granted visitation rights. A petitioner seeking a subsequent modification bears the burden of demonstrating that the existing custody order should be altered. Kondamuri v. Kondamuri, 852 N.E.2d 939, 945 (Ind.Ct.App.2006). All parties agree that, under the circumstances, modification of L.J.S.'s custody from Mother was required. The only question presented is whether the trial court erred in granting custody to Grandparents.

Here, we are not confronted with a custody dispute between two parents. Mother's abandonment of custody of L.J.S. changes the custody analysis from one between parents to one between a natural parent and a third party. As a result, "the focus is significantly different because the parties are not on par." In re Custody of McGuire, 487 N.E.2d 457, 460 (Ind.Ct.App.1985); see In re Paternity of K.I., 903 N.E.2d 453, 460 (Ind.2009) (in custody dispute between parent and third party, burden is always on third party).

Where the dispute involves a parent and a third party, we cannot ignore the constitutional implications; the relationship of a parent and a child is of a constitutional dimension. In re K.S., 750 N.E.2d 832, 836 (Ind.Ct.App.2001); In re Guardianship of L.L., 745 N.E.2d 222, 228 (Ind.Ct.App.2001), trans. denied. "As the United States Supreme Court has recently reiterated, the Fourteenth Amendment's Due Process Clause protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children." In re L.L., 745 N.E.2d at 228-29 (citing Troxel v. Granville, 530 U.S. 57, 66, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000)).² Moreover,

"[T]here is a presumption that fit parents act in the best interests of their children.... [S]o long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to...