FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:
RICHARD S. EYNON MICHAEL L. ROGERS
Eynon, Harmon, Rocker & Glover, P.C. Rogers & Dove
Columbus, Indiana North Vernon, Indiana
IN THE
COURT OF APPEALS OF INDIANA
IN RE: THE MATTER OF THE GUARDIANSHIP)
OF L.L. and J.L. )
______)
TRUDY (LITTRELL) FROELICH, )
)
Appellant-Natural Mother, )
)
vs. ) No. 40A01-0008-CV-253
)
WILMA CLARK, )
)
Appellee-Guardian. )
APPEAL FROM THE JENNINGS CIRCUIT COURT
The Honorable Jon W. Webster, Judge
Cause No. 40C01-9209-GU-18
February 21, 2001
OPINION - FOR PUBLICATION
BARNES, Judge
Case Summary
Trudy Froelich, the mother of nine-year-old L.L., appeals the trial court’s denial of her petition to terminate Wilma Clark’s guardianship of L.L., her paternal grandchild. We reverse and remand.
Issue
We restate the sole issue presented as whether the findings entered by the trial court support its decision to deny Trudy’s petition to terminate guardianship.
Facts
Trudy filed a petition to terminate Wilma’s guardianship of L.L. in September 1998. The trial conducted a hearing on May 23, 2000, and entered the following findings on June 19, 2000. These findings adequately set forth additional facts of the case:
1.) In the fall of 1992, Jerry Littrell, Wilma’s son and Trudy were married and had returned from Florida to Jennings County with their two (2) sons, [J.L.], born January 1, 1989 and [L.L.], born February 8, 1992.
2.) Shortly after returning to Jennings County, in 1992, the two (2) young boys were left in Wilma’s care, primarily due to Jerry and Trudy’s tumultuous lifestyle including substance and alcohol abuse. Wilma was appointed temporary guardian of both her grandsons on August 10, 1992. On October 13, 1992, Wilma was appointed permanent guardian, apparently after an evidentiary hearing where both Wilma and Trudy were represented by counsel.
3.) On October 8, 1993 and May 4, 1994, Trudy attempted to dissolve the guardianship of the boys, but after hearing, failed. However, on November 7, 1994, [J.L.] only was returned to her care and has been with Trudy since. [L.L.] remains under the guardianship of Wilma. Again on May 5, 1995, Trudy tried to dissolve the guardianship concerning [L.L.], and again lost her bid.
5.)[sic] [L.L.] is now eight (8) years of age and a third grader at Graham Creek Elementary School in Jennings County. He is an A/B student. He lives with Wilma and Wilma’s daughter, Patty, in a farmhouse near Commiskey, Indiana. Wilma is divorced, but she is employed and works 8:30 a.m. to 4:30 p.m. She is sixty (60) years of age.
6.) Trudy, now age thirty-one (31), remarried to Matt Froelich in November of 1998. [J.L.] lives with them in Bartholomew County. Trudy works at Muscatatuck State Developmental Center earning Eleven Dollars and Sixty-eight Cents ($11.68) per hour. She works 6:30 a.m. to 2:45 p.m., 37.5 hours per week. Matt is a construction manager earning around Seventy-five Thousand Dollars ($75,000.00) per year. Matt appears to be a successful gentleman genuinely concerned and involved, not only with his own children, but also [J.L.] and [L.L.]. Matt, Trudy and [J.L.] live in a very nice country home with plenty of play space and good neighbors with young children.
7.) Jerry Littrell, [J.L.] and [L.L.]’s father, sees them on rare occasions and is virtually a nonexistent part of their lives.
8.) Wilma sees [J.L.] fairly regularly, and Trudy does likewise with [L.L.], although it isn’t clear exactly how often these young brothers spend time together. They do get along well when together.
9.) It is undisputed that Wilma is very emotionally attached to [L.L.] and he to her.
10.) It is further undisputed that Trudy has been successful in rearing [J.L.]. He is an articulate young man and a good student.
11.) [L.L.] used a bottle at bedtime until age four (4). As late as December, 1999, he slept in the same bed as Wilma. Wilma explains this was due to her concern for his health, primarily respiratory problems.
12.) Trudy currently takes Prozac for depression.
13.) Mike Morgan, Bill Howard and Ron and Kim Puckett, all professed their belief Matt Froelich and Trudy were good parents, good workers, and had no reservation recommending that [L.L.] live with Trudy.
14.) Bill Flowers, Ruby Miller, and Albert Sparkman all similarly testified about their favorable observations of Wilma and [L.L.] together and opined [L.L.] was fine living with Wilma.
15.) A custody evaluation performed by Dianne Farrar in the fall of 1999 recommends [L.L.] remain with Wilma, but also recommends significantly more time be spent by [L.L.] with Trudy as [L.L.] gets older.
16.) Trudy has remained drug and alcohol free for around six (6) years and attends Alcoholics Anonymous.
17.) [L.L.] is not involved in organized athletics or Scouting.
18.) Wilma and Trudy appear to have a good relationship with one another but for this ongoing dispute regarding [L.L.].
Record pp. 56-58.
Based on these findings, the trial court denied Trudy’s petition to terminate guardianship as to L.L. It did, however, terminate the guardianship of J.L., which had never previously been officially terminated. Trudy has now appealed; Wilma does not appeal the termination of J.L.’s guardianship.
Analysis
We have been asked to resolve a case involving the tension between the rights of a natural parent to raise her child, the “best interests” of that child, and the interests of a third party who has cared for and who desires to continue caring for the child. Trudy requested that the trial court enter findings and conclusions pursuant to Indiana Trial Rule 52, so we employ a two-tiered standard of review. We first determine whether the evidence supports the findings, and then we consider whether the findings support the judgment. In re Paternity of J.A.C., 734 N.E.2d 1057, 1059 (Ind. Ct. App. 2000). The trial court’s findings and judgment will not be set aside unless they are clearly erroneous. Id. A judgment is clearly erroneous when it is unsupported by the conclusions drawn, and conclusions are clearly erroneous when they are unsupported by findings of fact. Id. Trudy does not allege that the findings entered by the trial court are unsupported by the evidence, but claims that those findings do not support the denial of her petition to terminate guardianship.
Initially, we observe that the termination of guardianship statute simply provides that termination may occur whenever it is no longer necessary for any reason. Ind. Code §29-3-12-1(c)(4). Strictly applying this statute, it is undisputed that the original grounds for granting Wilma guardianship over L.L. – i.e., because Trudy and her ex-husband were drug and alcohol abusers and fought regularly – were no longer present when Trudy filed the current petition to terminate guardianship. However, our review of the case law in this area indicates that we generally have applied a more detailed test than might arguably be required by the plain language of the statute – whether the original grounds for granting the guardianship still exist – to determine whether a third party guardianship of a child should be terminated. This appears to be based on the concern that a guardianship proceeding in such circumstances is, in essence, a child custody proceeding that raises important concerns about parental rights and the “best interests” of children.
At the outset we acknowledge that the opinions rendered by this court in the area of natural parent-third party custody disputes over the past three decades, whether those disputes have arisen out of guardianship proceedings or other custody proceedings, have not been entirely consistent. It is well established that when a parent initiates an action to obtain custody, a nonparent seeking to retain custody must bear the burden of overcoming the parent’s presumptively superior right to custody. Hunt v. Whalen, 565 N.E.2d 1109, 1110-11 (Ind. Ct. App. 1991). How this presumption is rebutted, however, has been subject to differing interpretations. The starting point in our analysis is Hendrickson v. Bailey, 161 Ind.App. 388, 316 N.E.2d 376 (1974), cert. denied, 423 U.S. 868, 96 S. Ct. 131 (1975), in which we set forth the following three-part test for analyzing such disputes:
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.
Id. at 393-94, 316 N.E.2d at 380. Furthermore, we held that evidence to rebut the presumption in favor of custody in the natural parent had to be “clear and cogent.” Id. at 395-96, 316 N.E.2d at 381.
Another panel of this court expressly rejected this allegedly “mechanical approach” to resolving natural parent-third party custody disputes in Turpen v. Turpen, 537 N.E.2d 537, 539-40 n.2 (Ind. Ct. App. 1989). The Turpen court held that “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 [parent] had been sufficiently rebutted by the evidence.” Id. at 539 (emphasis added). Turpen also failed to mention the Hendrickson court’s requirement that the parental preference presumption could only be rebutted by “clear and cogent” evidence.
Cases following Turpen have split on the extent to which it has been followed. Some have continued to adhere strictly to the Hendrickson “mechanical approach.” See Matter of Guardianship of R.B., 619 N.E.2d 952, 954 (Ind. Ct. App. 1993). Others have wholeheartedly adopted Turpen’s holding. See In re Paternity of L.K.T., 665 N.E.2d 910, 912 (Ind. Ct. App. 1996). Between the thoughts articulated in these opinions are cases that acknowledge the three factors for rebutting the presumption in favor of the natural parent specified in Hendrickson, but recognize that other, nonspecific factors might exist in a particular case that would warrant rebutting that presumption. See, e.g., In re Marriage of Huber, 723 N.E.2d 973, 976 (Ind. Ct. App. 2000). Nevertheless, even when a case is analyzed using the “any evidence” test, we have held that a generalized finding that a child’s placement with a third party as opposed to a natural parent is in his or her “best interests” is insufficient to rebut the parental preference presumption. Id.
Additionally, we have noticed that some cases purporting to rely on Hendrickson to various degrees have altered a portion of its holding. As evidenced by the above quote, Hendrickson requires that a child be placed in the custody of the third party if the presumption in favor of the natural parent(s) is rebutted. However, Huber and Guardianship of R.B. both indicate that if the presumption in favor of the parent(s) is rebutted, “then the question becomes whether it is in the best interests of the child to be placed in the custody of the third party.” Huber, 723 N.E.2d at 975; Guardianship of R.B., 619 N.E.2d at 954. Under these cases, therefore, a third party does not automatically gain custody upon rebuttal of the presumption, but a separate “best interests” analysis then ensues.
We believe the approach of these later cases is the sounder one. We can conceive of cases where, for example, the presumption in favor of the parent has been rebutted because of his or her long acquiescence, but evidence at the time of the custody hearing indicates that the third party would not be an effective parental figure or other “best interest” factors would indicate custody should be with the natural parent.
Although not raised by either party at the appellate level, we cannot ignore the constitutional implications of this case. 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. Troxel v. Granville, -- U.S. --, 120 S. Ct. 2054, 2060 (2000).[1] Moreover, the Court said
there 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 further question the ability of that parent to make the best decisions concerning the rearing of that parent’s children.
Id. at 2061. Thus, the preference in favor of a parent having custody of his or her children, where the parent has not been shown to be unfit, is rooted in the United States Constitution.
Further adding to the potential confusion surrounding natural parent-third party custody disputes, our legislature amended the statutes governing certain custody proceedings in 1999 to provide that “de facto” custodians could be parties to such proceedings, in addition to the natural parents. A “de facto custodian” is defined as:
[A] person who has been the primary caregiver for, and financial support of, a child who has resided with the person for at least:
(1) six (6) months if the child is less than three (3) years of age; or
(2) 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. . . .
Ind. Code §31-9-2-35.5. A “de facto custodian” must be made a party to a custody proceeding following a paternity determination, pursuant to Indiana Code Section 31-14-13-2.5(c), or in a marital dissolution action, pursuant to Indiana Code Section 31-17-2-8.5(c). Once a court determines a “de facto custodian” exists and that individual has been made a party to a custody proceeding, the court shall consider the following factors in determining the child’s “best interests,” in addition to the usual “best interests” of the child factors contained in Indiana Code Sections 31-14-13-2 and 31-17-2-8: