MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                           FILED
regarded as precedent or cited before any                                  Mar 23 2018, 9:10 am

court except for the purpose of establishing                                    CLERK
the defense of res judicata, collateral                                     Indiana Supreme Court
                                                                               Court of Appeals
                                                                                 and Tax Court
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                  ATTORNEY FOR APPELLEE
Monty K. Woolsey                                         Diana C. Bauer
Andrew R. Bloch                                          BAUER LEGAL LLC
CROSS, PENNAMPED, WOOLSEY &                              Fort Wayne, Indiana
GLAZIER, P.C.
Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In re the Paternity of A.M. and                          March 23, 2018
A.M. (Minor Children):                                   Court of Appeals Case No.
                                                         43A03-1710-JP-2369
                                                         Appeal from the Kosciusko
Brandi Miller,                                           Superior Court
Appellant-Respondent,                                    The Honorable David C. Cates,
                                                         Judge
        v.
                                                         Trial Court Cause No.
                                                         43D01-1705-JP-164
Brock Hawthorne,
Appellee-Petitioner.



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 43A03-1710-JP-2369 | March 23, 2018               Page 1 of 14
                                                Case Summary
[1]   Brandi Miller (“Mother”) appeals the trial court order granting Brock

      Hawthorne (“Stepfather”) third-party visitation rights with her children, A.M.

      and A.M. (“the twins”). While we agree with Mother that the trial court erred

      as a matter of law when it granted Stepfather visitation pursuant to the de facto

      custodian statute,1 we affirm on the grounds that Stepfather was entitled to step-

      parent visitation because he had a custodial and parental relationship with the

      twins and visitation is in the twins’ best interests.


[2]   Affirmed.



                                Facts and Procedural History
[3]   On March 2, 2007, Mother gave birth to the twins. The twins’ putative father is

      Travis Miller,2 but the record does not disclose whether paternity of the twins

      has ever been established. In June 2007, Mother and the twins moved into

      Stepfather’s home in Syracuse, Indiana. Mother gave birth to D.H., her and

      Stepfather’s child, on March 24, 2009, and Mother and Stepfather married in

      August or September of 2014. In June 2016, Mother and Stepfather separated

      and Stepfather filed for dissolution of marriage.3




      1
          Ind. Code § 31-9-2-35.5 (2017).
      2
          Travis Miller did not participate in the trial court proceedings, and he does not participate in this appeal.
      3
          The record does not disclose the outcome of the dissolution of marriage action.


      Court of Appeals of Indiana | Memorandum Decision 43A03-1710-JP-2369 | March 23, 2018                  Page 2 of 14
[4]   On May 1, 2017, Stepfather filed a “Verified Motion for De Facto Custody [of

      the twins] or[,] in the Alternative, Step Parent Parenting Time.”4 Appellant’s

      App. at 3. On May 26, the trial court appointed James L. Walmer as guardian

      ad litem (“the GAL”) for the children, and the GAL filed his report on July 7.5

      At a custody hearing on July 10, 2017, the GAL testified that he had

      interviewed the twins and D.H. and that all three children wished to live with

      Stepfather. The GAL testified that the twins and D.H. all had a very close

      relationship with each other; that the twins became upset when D.H. was

      permitted to visit Stepfather but the twins were not; and that the twins were

      “adamant” that they wanted to live with Stepfather, who they called “father.”

      Tr. at 7-8. In fact, the twins thought Stepfather was their biological father until

      Mother informed them otherwise when they were around nine and a half years

      old. The twins never had any contact with their putative father.


[5]   The GAL testified that Stepfather and Mother had both raised the twins and

      that it was “clear” that the twins loved them both. Id. at 9-10. From June 2007

      until he separated from Mother in June 2016, Stepfather took care of the twins

      while Mother was at work by cooking meals for the twins, putting them to bed,

      helping them with homework, and spending a lot of time with them. The GAL




      4
        Stepfather filed the current case as a new cause of action. Appellant’s App. at 2-3. And, while the CCS
      indicates the “action” is a “petition to establish paternity of a child,”—with a case type code of “JP”—the
      record contains no petition to establish paternity of the twins, and Stepfather has not alleged that he is the
      twins’ biological father. Thus, it appears this case should have been classified as a “Domestic Relations with
      Children” case, with the case type “DC.” Ind. Administrative Rule 8(B)(3).
      5
          Neither the GAL report nor any other exhibits are contained in the record on appeal.


      Court of Appeals of Indiana | Memorandum Decision 43A03-1710-JP-2369 | March 23, 2018             Page 3 of 14
      opined that it was in the twins’ best interests for Stepfather to have custody of

      the twins because the twins had reported to him that Mother’s new boyfriend

      had “hit them on their shoulders.” Id. at 22-23. However, the GAL

      acknowledged that the Indiana Department of Child Services (“DCS”) had

      investigated the allegations of abuse by Mother’s boyfriend and found the

      allegations unsubstantiated.


[6]   On July 18, 2017, the trial court, sua sponte, entered the following findings and

      order:


               1. That Respondent, Brandi Miller, is the Mother of [the twins,
                  A.M. and A.M.], both born March 2, 2007.


               2. That Respondent, Travis Miller, is alleged to be the Father of
                  [the twins] but, despite service, is not participating herein, and
                  has not been a part of the children’s lives.


               3. That Petitioner, Brock Hawthorne, resided with Respondent,
                  Brandi Miller, as well as with [the twins,] for approximately 8
                  ½ years.


               4. That during the period in which [the twins] resided with
                  Petitioner, Petitioner provided financial support for such
                  children, although the primary financial support for the
                  children came from Respondent, Brandi Miller.


               5. That during the period Petitioner, Brock Hawthorne, resided
                  with [the twins], Petitioner provided substantial care for the
                  minor children, as if he was their father.




      Court of Appeals of Indiana | Memorandum Decision 43A03-1710-JP-2369 | March 23, 2018   Page 4 of 14
        6. That there is a substantial bond between Petitioner and the
           children and harming or severing that bond would be
           emotionally harmful for the children.


        7. That it is in the best interests of the minor children that
           Petitioner have custody of those children, including, but not
           limited to:


            7.1 Petitioner [is] known by the children as “dad” and was the
                only “dad” these children knew until recently when
                Respondent, Brandi Miller, deliberately harmed the
                children by informing them that Petitioner was not the
                children’s biological father.


            7.2 Petitioner was the primary caretaker for each of the
                children much of the children’s lives, including helping the
                children with homework, preparing meals for the children,
                and acting in a parental role to the children.


            7.3 Petitioner has provided and can provide a more stable,
                loving[,] and appropriate home, free from violence, than
                has Respondent, Brandi Miller.


            7.4 Respondent, Brandi Miller, has attempted to influence the
                children and their communications with officials from the
                Department of Child Services and this Court’s Guardian
                Ad Litem.


            7.5 Respondent, Brandi Miller, uses the children as pawns to
                effectuate her own purposes and has limited the children’s
                contact with Petitioner for selfish purposes.




Court of Appeals of Indiana | Memorandum Decision 43A03-1710-JP-2369 | March 23, 2018   Page 5 of 14
            7.6 Petitioner Brock Hawthorne’s residence has sufficient
                space and is an appropriate environment for the care of the
                minor children.


            7.7 Respondent, Brandi Miller, has, at various times, utilized
                Petitioner Brock Hawthorne’s surname for and on behalf
                of the children and when referring to the children.


        8. That the due process clause of the 14th Amendment to the
           United States Constitution protects the fundamental right of
           parents to make decisions concerning the care, custody[,] and
           control of their children[,] Troxel v. Granville, 530 US 57
           (2000), and most recently, Respondent, Brandi Miller, has
           permitted Petitioner, Brock Hawthorne, visitation with the
           minor children.


        9. That Respondent, Brandi Miller, while certainly not a model
           parent, cannot be determined to be unfit, has not long
           acquiesced in Petitioner Brock Hawthorne’s custody of the
           children, and has not voluntarily relinquished custody of the
           children to Petitioner, Brock Hawthorne. See Hendrickson v.
           Binkley, 316 N.E.2d 376 (1974).


        10. That while Petitioner, Brock Hawthorne, has certainly acted
            in a positive fashion in the children’s best interests and has
            been more of a parent to these children than either of the
            children’s biological parents, the Court cannot find Petitioner,
            Brock Hawthorne, to be a de facto custodian as set forth in
            I.C. 31-9-2-35.5 and as is [sic] interpreted by Brown v.
            Lungsford, 63 N.E.3d 1057 (Ind. [Ct.] App. 2016).


        WHEREFORE, BE IT ORDERED, ADJUDGED AND
        DECREED that Petitioner’s Petition and Verified Motion for De
        Facto Custody or in the [A]lternative for Step-Parent Parenting
        Time is DENIED, subject to this Court reconsidering the same
Court of Appeals of Indiana | Memorandum Decision 43A03-1710-JP-2369 | March 23, 2018   Page 6 of 14
              should Respondent, Brandi Miller[,] deny visitation to Petitioner
              moving forward.


      Appellant’s App. at 11-13.


[7]   On July 27, Stepfather filed a Motion to Correct Error and Motion to

      Reconsider, and the trial court set the motions for a hearing. At the August 30

      hearing, the GAL once again testified. He had spoken with the twins earlier

      that same day and the twins had informed him that they wanted to live with

      Mother and did not wish to even visit Stepfather “because he’s mean and he

      hurts them and all that stuff.” Tr. at 208. However, the GAL testified that it

      would “adversely affect [the children] in their life” [sic] if they were “cut off”

      from Stepfather. Id. at 201. The GAL stated that, in his “personal view,”

      Mother would be “unfit” if she did not give Stepfather parenting time with the

      twins. Id. at 213. The GAL believed Mother and Stepfather were speaking

      badly about each other in front of the children and that behavior was

      influencing the children’s statements regarding their wishes for custody and

      visitation.


[8]   In an order dated September 12, 2017, the trial court granted, in part,

      Stepfather’s motion to correct error, stating in relevant part:


              1. That Petitioner’s Motion to Correct Errors should be granted
                 to the extent that paragraph nine (9) of the Order entered
                 herein on July 18, 2017, is modified and henceforth shall read
                 as follows:




      Court of Appeals of Indiana | Memorandum Decision 43A03-1710-JP-2369 | March 23, 2018   Page 7 of 14
                     9. That Respondent, Brandi Miller, has not acted as a
                     fit parent in denying Brock Hawthorne access to and
                     visitation with the minor children, but has not long
                     acquiesced in Petitioner Brock Hawthorne’s custody of
                     the children and has not voluntarily relinquished
                     custody of the children to Petitioner, Brock Hawthorne.
                     See Hendrickson v. Binkley, 316 N.E.2d 276 ([Ind.] 1974).


        2. That paragraph ten (10) of this Court’s Order of July 18, 2017,
           shall henceforth read as follows:


                 10. That while Petitioner, Brock Hawthorne, has certainly
                 acted in a positive fashion in the children’s best interests
                 and has been more of a parent to these children than either
                 of the children’s biological parents, the Court cannot find
                 Petitioner, Brock Hawthorne[,] to be a de facto custodian
                 for custodial purposes as set forth in I.C. 31-9-2-35.5, and
                 as is [sic] interpreted by Brown v. Lungsford, 63 N.E.3d
                 1057 (Ind. [Ct.] App. 2016); however, Brock Hawthorne is
                 a de facto custodian as set forth in I.C. 31-9-2-35.5 for
                 purposes of visitation.


        3. That following entry of this Court’s Order of July 18, 2017,
           Respondent, Brandi Miller, without good cause, and in
           dereliction of the best interests of the minor children,
           prevented Brock Hawthorne from having visitation with said
           children, and said children with [sic] having visitation with
           Brock Hawthorne.


        4. That it is in the best interests of the minor children that they
           have visitation with Brock Hawthorne, and that, henceforth,
           Brock Hawthorne shall have visitation as if he were the
           biological father of each of these children, with such visitation
           to be had in accordance with the Indiana Parenting Time
           Guidelines as presently construed, with the parties to share

Court of Appeals of Indiana | Memorandum Decision 43A03-1710-JP-2369 | March 23, 2018   Page 8 of 14
                  the children and have the children in their respective custody
                  together as much as is reasonably possible.


                                                 ***


      Appellant’s App. at 9-10. Mother now appeals.



                                 Discussion and Decision
                                        Standard of Review
[9]   When the trial court sua sponte enters findings and conclusions pursuant to

      Indiana Trial Rule 52, as it did here,


              the findings “control only as to the issues they cover and a
              general judgment will control as to the issues upon which there
              are no findings.” Tracy v. Morell, 948 N.E.2d 855, 862 (Ind. Ct.
              App. 2011). We review findings for clear error and we review
              conclusions of law de novo. Bowyer v. Ind. Dep’t of Natural Res.,
              944 N.E.2d 972, 983 (Ind. Ct. App. 2011). A judgment is clearly
              erroneous if no evidence supports the findings, the findings do
              not support the judgment, or the trial court applies an incorrect
              legal standard. Id. at 983–84.


      K.S. v. B.W., 954 N.E.2d 1050, 1051 (Ind. Ct. App. 2011), trans. denied.

      However, we may affirm a trial court’s judgment on any legal theory supported

      by the evidence. See, e.g., J.M. v. Review Bd. of Ind. Dep’t of Workforce Dev., 975

      N.E.2d 1283, 1289 (Ind. 2012) (quoting Dowdell v. State, 720 N.E.2d 1146, 1152

      (Ind. 1999)).




      Court of Appeals of Indiana | Memorandum Decision 43A03-1710-JP-2369 | March 23, 2018   Page 9 of 14
[10]   In addition, the visitation decision Mother challenges was made on a motion to

       correct error.


                The trial court’s decision on a motion to correct error comes to
                an appellate court cloaked in a presumption of correctness, and
                the appellant has the burden of proving that the trial court abused
                its discretion. Volunteers of Am. v. Premier Auto Acceptance Corp.,
                755 N.E.2d 656, 658 (Ind. Ct. App. 2001). In making our
                determination, we may neither reweigh the evidence nor judge
                the credibility of witnesses. Id. Instead, we look at the record to
                determine if: “(a) the trial court abused its judicial discretion; (b)
                a flagrant injustice has been done to the appellant; or (c) a very
                strong case for relief from the trial court’s [order] ... has been
                made by the appellant.” Id. (citation omitted) (omission in
                original).


       Page v. Page, 849 N.E.2d 769, 771 (Ind. Ct. App. 2006).


                                    De Facto Custodian Statute
[11]   Mother contends that the trial court erred as a matter of law when it granted

       Stepfather visitation6 with the twins pursuant to Indiana’s “de facto custodian”

       statute. We agree.


[12]   Indiana law defines a “de facto custodian” as a person




       6
         Although the trial court referred to the parenting time guidelines, only parents may be awarded “parenting
       time” pursuant to the Indiana Parenting Time Guidelines. See K.I. ex rel. J.I. v. J.H., 903 N.E.2d 453, 461
       (Ind. 2009). “[V]isitation, on the other hand, may be awarded to an unrelated third party, such as a
       stepparent, under certain circumstances…” Richardson v. Richardson, 34 N.E.3d 696, 700 n.2 (Ind. Ct. App.
       2015). Since Step-father is not a parent, we will refer to the trial court’s order as a visitation order and not a
       parenting time order. Id.

       Court of Appeals of Indiana | Memorandum Decision 43A03-1710-JP-2369 | March 23, 2018                Page 10 of 14
               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.


       I.C. § 31-9-2-35.5. Our Supreme Court has clearly held that status as a de facto

       custodian “bears only on the question of custody,” and does not give a trial

       court authority to award visitation to a non-parent. K.I., 903 N.E.2d at 461-62.


[13]   Here, the trial court found that Stepfather was not a de facto custodian of the

       twins “for custodial purposes.” Appellant’s App. at 9. That finding is supported

       by the evidence that, while Stepfather did provide “substantial” care and

       support for the twins, he was not the “primary” caregiver and provider of

       financial support for them. Id. at 11.


[14]   However, the trial court also held that Stepfather was a de facto custodian “for

       purposes of visitation.” Id. at 9. That was an erroneous legal conclusion, as the

       de facto custodian statute only applies to custody, not visitation. K.I., 903

       N.E.2d at 461-62; see also K.S. v. B.W., 954 N.E.2d 1050, 1051-52 (Ind. Ct. App.

       2011) (emphasis added) (“Our legislature specifically provided the definition of

       de facto custodian applies only to custody proceedings following the determination

       of paternity (Ind. Code § 31-14-13-2.5), actions for child custody or

       modification of child custody orders (Ind. Code § 31-17-2-8.5), and temporary




       Court of Appeals of Indiana | Memorandum Decision 43A03-1710-JP-2369 | March 23, 2018   Page 11 of 14
       placement of a child in need of services who is taken into custody (Ind. Code §

       31-34-4-2).”), trans. denied.


                                         Step-Parent Visitation
[15]   However, we may affirm the trial court’s judgment on any theory supported by

       the evidence. J.M., 975 N.E.2d at 1289. Here, the evidence supports the

       judgment that Stepfather is entitled to third-party visitation rights with the

       twins.


[16]   Parents have a fundamental constitutional right to determine the care, custody,

       and control of their children. Troxel v. Granville, 530 U.S. 57, 66 (2000) (citing

       the Due Process Clause of the Fourteenth Amendment to the United States

       Constitution). Thus, the courts must presume that a fit parent acts in her child’s

       best interests, and they must give special weight to a fit parent’s decision to

       deny or limit visitation to third parties. Brown v. Lunsford, 63 N.E.3d 1057, 1064

       (Ind. Ct. App. 2016). However, that does not mean that the parent may impose

       an absolute veto on any non-parent visitation. See, e.g., Francis v. Francis, 654

       N.E.2d 4, 7 (Ind. Ct. App. 1995) (holding that “[a] parent’s mere protest that

       visitation with the third party would somehow harm the family is not enough to

       deny visitation in all cases, particularly where the third party cared for the

       children as his own”), trans. denied. Rather, non-parents7 may obtain visitation




       7
         Grandparents visitation rights—which are not at issue here—must be established pursuant to the separate
       statutory scheme in the Grandparent Visitation statutes. I.C. § 31-17-5-0.2 through § 31-17-5-10. Worrell v.
       Elkhart Cnty. Office of Family & Children, 704 N.E.2d 1027, 1028 n.1 (Ind. 1998).

       Court of Appeals of Indiana | Memorandum Decision 43A03-1710-JP-2369 | March 23, 2018           Page 12 of 14
       rights if they establish the existence of a custodial and parental relationship and

       that visitation is in the children’s best interests. Richardson v. Richardson, 34

       N.E.3d 696, 701 (Ind. Ct. App. 2015) (citing Worrell, 704 N.E.2d at 1028). “A

       stepparent relationship is a strong indicator that a custodial and parental

       relationship exists,” and “a child’s interest in maintaining relationships with

       those who have acted in a parental capacity will sometimes trump a natural

       parent’s right to direct the child’s upbringing.” Id.


[17]   Here, the evidence supports the trial court’s finding that Stepfather had a

       custodial and parental relationship with the twins. He lived with, raised, and

       cared for the twins for about eight and a half years. The twins called him “dad”

       and he was the only father they ever knew. He also provided some financial

       support for the twins. This is sufficient evidence of a custodial and parental

       relationship. See, e.g., Nunn v. Nunn, 791 N.E.2d 779, 786 (Ind. Ct. App. 2003)

       (finding a custodial and parental relationship between the child and stepfather

       where the stepfather and the child’s mother both were involved in raising the

       child during the four-year period of their marriage, and stepfather cared for the

       child while mother was at work); cf. Brown, 63 N.E.3d at 1064-65 (holding

       mother’s boyfriend, who was not a stepparent and had shown no custodial and

       parental relationship to mother’s child, did not have standing to seek third-party

       visitation rights with the child).


[18]   The evidence also supports the trial court’s finding that visitation with

       Stepfather is in the twins’ best interest. The twins were not only close with

       Stepfather but also with their half-brother, D.H., and the twins became upset

       Court of Appeals of Indiana | Memorandum Decision 43A03-1710-JP-2369 | March 23, 2018   Page 13 of 14
       when D.H. was permitted to visit Stepfather but they were not. The GAL

       testified that it would be harmful to the twins if they were not permitted to visit

       with Stepfather. See Richardson, 34 N.E.3d at 702-03 (holding visitation was in

       the child’s best interests where the stepfather had provided financial, emotional,

       physical, and educational support to the child for almost eight years); Francis,

       654 N.E.2d at 7 (holding that, where the children lived with the stepfather for

       six-plus years and he was the only father they knew, continued significant

       contact between the stepfather and the children was in the children’s best

       interests). And, although the GAL testified at the last hearing that the children

       did not wish to visit Stepfather, reportedly because he was “mean” and “hurt

       them,” the DCS did not substantiate those allegations and the GAL gave those

       allegations little credit. Clearly, the trial court also chose to give little weight to

       those claims, and we may not reweigh that evidence. Page, 849 N.E.2d at 771.



                                               Conclusion
[19]   Although the trial court erred as a matter of law when it granted Stepfather

       visitation with the twins pursuant to the de facto custodian statute, we affirm

       the judgment on the grounds that Stepfather had a custodial and parental

       relationship with the twins and visitation is in the twins’ best interests.


[20]   Affirmed.


       Crone, J., and Brown, J., concur.



       Court of Appeals of Indiana | Memorandum Decision 43A03-1710-JP-2369 | March 23, 2018   Page 14 of 14
