A.J.L. v. D.A.L.

• Decision Date: 09 September 2009
• Docket Number: No. 43A04-0902-CV-106.,43A04-0902-CV-106.
• Citation: 912 N.E.2d 866
• Parties: A.J.L., Appellant-Respondent, v. D.A.L., Appellee-Petitioner,<SMALL><SUP>1</SUP></SMALL> J.K.C. and T.C., Appellees-Intervenors.
• Court: Indiana Appellate Court

912 N.E.2d 866

A.J.L., Appellant-Respondent, v. D.A.L., Appellee-Petitioner,¹ J.K.C. and T.C., Appellees-Intervenors.

No. 43A04-0902-CV-106.

Court of Appeals of Indiana.

September 9, 2009.

Beverly S. Peters, Beverly S. Peters and Associates, P.C., Elkhart, IN, Attorney for Appellant.

Christopher D. Kehler, Kehler Law Firm, PC, Warsaw, IN, Attorney for Appellees.

OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

A.J.L. ("Mother") appeals from the trial court's decree dissolving her marriage to D.L. ("Father"), following a final hearing. In that decree, the court awarded custody of Mother and Father's children ("the Children") to Intervenors, J.K.C. ("Aunt") and T.C. ("Uncle"). Mother presents the following issues for review:

1. Whether the trial court erred when it concluded that Aunt and Uncle are the de facto custodians of the Children.

2. Whether the evidence is sufficient to support the trial court's award of custody of the Children to Aunt and Uncle.

We affirm.

FACTS AND PROCEDURAL HISTORY

Mother and Father have three children: I.R.L., born June 24, 1997; T.L.L., born August 19, 1998; and J.C.L., born May 31, 2002. Mother and Father married on July 3, 2002. Father is the nephew of Aunt and Uncle. Aunt and Uncle regularly assisted Mother and Father with the Children by providing childcare, which included having the children at Aunt and Uncle's home for extended overnight stays. In 2002, on one such occasion, Aunt and Uncle kept the children for a week for the duration of Mother and Father's trip to Las Vegas to get married.

Father filed a pro se petition for dissolution on January 5, 2006. The Children lived with Aunt and Uncle fifty percent of the time from January 2006 through February 2007 and sixty to seventy percent of the time from February 2007 to February 2008. During those periods, Aunt and Uncle provided the Children with food, clothes, and medical care and attended to their educational needs. Other family members also helped with childcare and medical care during the period from 2006 to 2008. Throughout those periods, Mother had several different residences and lived with several different people, sometimes with several different adults at one time, and she did not always have utilities. The Children spent some weekends and other periods of time with Mother in 2006 and 2008.

On May 9, 2008, Aunt and Uncle filed a Verified Petition for Emergency Custody Order and Temporary Restraining Order, a Verified Petition to Intervene, and a Verified Petition for Custody. On May 13, 2008, Mother filed her Motion for Specific Parenting Time. On June 24, 2008, the court entered an order appointing a Court Appointed Child Advocate ("CASA"). The CASA office responded in writing that there was insufficient time before the final hearing to prepare a CASA report. As a result, on June 30, the court vacated the order appointing a CASA.

The final hearing commenced on July 24, 2008, and continued on August 12, August 15, and August 29. On December 12, 2008, the court entered its Decree of Dissolution, which provides in part as follows:

The Court FURTHER FINDS that [Aunt and Uncle], the intervening parties herein, are the aunt and uncle of [Father] and that the intervening parties herein are and have been the de[]facto custodians of the minor children herein as defined by I.C. 31-9-2-35 .5. The Court further finds by clear and convincing evidence that the minor children herein have been cared for by the de[]facto custodians, namely [Aunt and Uncle], for more than one year prior to the commencement of the child custody proceedings herein, and that [Aunt and Uncle] have been the primary caregivers for and financial support of the children during that time. Therefore, the Court further finds that it is appropriate to consider the factors set forth in I.C. 31-17-2-8.5 regarding child custody in making a determination as to the best interests of the minor children herein.

The Court FURTHER FINDS that [Father and Mother] have a history of abusing illegal drugs, that [Mother] has not maintained a stable residence nor stable employment, that [Mother] does not have a valid driver's license, and that [Mother] is unable to provide adequate support or care for the minor children. The Court further finds that [Mother] placed the minor children in the care of [Aunt and Uncle], the intervening parties herein, and allowed them to remain in the custody of the de[ ]facto custodians for significant periods of time, thereby allowing the children to be cared for, nurtured and supported by the de[ ]facto custodians. The Court further finds that [Mother's] long acquiescence and voluntary relinquishment of the minor children herein has left the intervening parties as the de facto custodians and the lives and affections of the children and the Intervening Parties [are] completely interwoven.

The Court FURTHER FINDS that [Mother] is not now pregnant; and that there are three (3) minor children of the marriage, namely: [I.R.L.], born on June 24, 1997; [T.L.L.], born on August 19, 1998; and [J.C.L.], born on May 13, 2002, and that it is in the best interest of the minor children that [Aunt and Uncle], the Intervening Parties, have the care, custody and control of the minor children, subject to the [Mother and Father's] right of reasonable visitation in accordance with the General and Standing Order of the Court Relating to Child Custody, Parenting Time and Support, dated January 6, 2004,² which is annexed to this decree and the parties should be ordered to strictly comply therewith.

Appellant's App. at 19-20, 22. Based on those findings, the court awarded custody of the Children to Aunt and Uncle. Mother now appeals.

DISCUSSION AND DECISION

Issue One: De Facto Custodians

Mother contends that the trial court erred when it concluded that Aunt and Uncle are the de facto custodians of the Children. In particular, Mother alleges that the Children "had not resided with the [Aunt and Uncle] for the requisite one-year period required to establish themselves as de facto custodians." Appellant's Brief at 9. We cannot agree.

Indiana Code Section 31-9-2-35.5 defines "de facto custodian" in relevant part as follows:

"De facto custodian", for purposes of IC 31-14-13 [paternity cases], IC 31-17-2 [custody and visitation cases], and IC 31-34-4 [juvenile cases], means a person who has been the primary caregiver for, and financial support of, a child who has resided with the person for at least ... one (1) year if the child is at least three (3) years of age.

Any period after a child custody proceeding has been commenced may not be included in determining whether the child has resided with the person for the required minimum period. The term does not include a person providing care for a child in a foster family home (as defined in IC 31-9-2-46.9).

Before custody can be awarded to a third party, that third party must demonstrate de facto custodian status by clear and convincing evidence. See Ind.Code § 31-17-2-8.5. In reviewing a judgment requiring proof by clear and convincing evidence, an appellate court may not impose its own view as to whether the evidence is clear and convincing, but must determine, by considering only the probative evidence and reasonable inferences supporting the judgment and without weighing evidence or assessing witness credibility, whether a reasonable trier of fact could conclude that the judgment was established by clear and convincing evidence. In re Guardianship of B.H., 770 N.E.2d 283, 288 (Ind.2002).

At the final hearing, Aunt testified that the Children had resided with her and Uncle fifty percent of the time from January 2006 to February 2007 and sixty to seventy percent of the time from February 2007 to February 2008.³ The Children lived with Mother for two to three weeks in February 2008, then returned to living with Aunt and Uncle in March 2008. Father also testified that the Children have "[p]retty much" lived with Aunt and Uncle since January 2006. Transcript at 12.

During the periods that the Children resided with Aunt and Uncle, Aunt and Uncle provided for the Children's food, and, together with other family members, provided for the Children's clothing and medical expenses. Aunt and Uncle also paid for babysitters they hired to watch the children when Aunt and Uncle were out. Mother did not provide financial assistance during those periods. When the Children were with Mother, Aunt and Uncle occasionally provided food or other household items, they paid one of Mother's utility bills, and Aunt occasionally gave Mother "a dab of money." Id. at 361. Aunt and Uncle also tended to the Children's educational needs. Aunt met with I.R.L.'s teacher twenty-five to thirty times from February 2008, when I.R.L. changed schools, to May 2008 when the school year ended to address that child's failing grades. And Uncle regularly helped I.R.L. with his math homework.

Mother argues that Aunt and Uncle did not establish the one-year residency requirement in Indiana Code Section 31-9-2-35.5. Specifically, Mother argues that Aunt and Uncle were merely babysitters and that she had "coordinat[ed] with the babysitters [Aunt and Uncle] in the form of a schedule." Appellant's Brief at 9. But the evidence is sufficient to show by clear and convincing evidence that the Children resided with Aunt and Uncle a majority of the time for unspecified non-consecutive periods over the preceding two years and that Aunt and Uncle provided the basic necessities for the Children during that period. See In re Custody of J.V., No. 27A02-0903-JV-232, ___ N.E.2d ___, 2009 WL 1939798, at *3, 2009 Ind.App. LEXIS 943, at *7-*8 (July 7, 2009), not yet certified. Mother's contention amounts to a request that we reweigh the evidence, which we will not do. The trial court did not err when it concluded that Aunt and Uncle are the de facto custodians of the Children.

Issue Two: Sufficiency of Evidence

Mother next contends that the evidence is...