Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT:                              ATTORNEY FOR APPELLEES:

JASON SPINDLER                                       MICHAEL R. COCHREN
Spindler Law                                         Princeton, Indiana
Princeton, Indiana

                                                                             Apr 04 2013, 9:30 am
                               IN THE
                     COURT OF APPEALS OF INDIANA

R.D,                                                 )
                                                     )
       Appellant,                                    )
                                                     )
               vs.                                   )     No. 26A01-1208-JP-372
                                                     )
A.W. & M.W.,                                         )
                                                     )
       Appellees.                                    )


                       APPEAL FROM THE GIBSON CIRCUIT COURT
                            The Honorable Jeffrey Meade, Judge
                               Cause No. 26C01-1111-JP-60




                                           April 4, 2013



                 MEMORANDUM DECISION - NOT FOR PUBLICATION




ROBB, Chief Judge
                                 Case Summary and Issue

       R.D. (“Father”) appeals the trial court’s award of custody of A.W. (“Child”) to An.W.

and M.W. (“Step-Grandparents”). Father raises one restated issue on appeal: whether the

trial court erred in awarding custody to the Step-Grandparents. Concluding that the trial

court did not err, we affirm.

                                Facts and Procedural History

       The Child was born on February 23, 2011. At the time of conception, D.P.W.

(“Mother”) was married to R.W. (“Husband”), but had left Husband briefly and entered into

a relationship with Father. After becoming pregnant, Mother ended the relationship with

Father, returned to Husband, and, before giving birth, moved to Texas. The Texas

Department of Child Services became involved, and the Child was placed with Husband’s

parents, the Step-Grandparents, here in Indiana on June 15, 2011. A half-sibling to the Child

was placed with the Step-Grandparents at the same time; the Step-Grandparents already had

guardianship over another of the Child’s half-siblings.1

       It appears that, after Mother moved to Texas, Father attempted to track her and the

Child down via family members and calls to authorities in Texas, but was unsuccessful. At

some point, Mother moved back to Indiana. Eventually, Father learned that the Child and

Mother were in Indiana, and soon thereafter, on November 10, 2011, filed a petition to

establish paternity. The court ordered DNA testing, and set the matter for a hearing.

Paternity was established and a hearing was held on January 10, 2012. The parties agreed

that child support would be waived and Father would have supervised visitation time with the



                                             2
Child, and the court appointed a guardian ad litem (“GAL”) for the Child. That same day,

the Step-Grandparents filed for custody of the Child.

       On April 4, 2012, Father filed for custody of the Child. A trial was held on the

custody dispute over two days, July 9 and 10, 2012. Following trial, the trial court entered an

order with findings of facts and conclusions of law. The court concluded that the Step-

Grandparents were de facto custodians of the Child, that they had overcome the presumption

in favor of awarding custody to the natural parent by clear and convincing evidence, and that

it was in the Child’s best interest for the Step-Grandparents to have physical and legal

custody of her. The court granted Father supervised visitation with the Child, and left open

the possibility of future modifications allowing for increased visitation if Father underwent a

psychiatric evaluation, cooperated with the evaluation, and followed all resulting

recommendations. This appeal followed.

                                      Discussion and Decision

                                        I. Standard of Review

       We review a determination awarding child custody to a non-parent for clear error. In

re Marriage of Huss, 888 N.E.2d 1238, 1245 (Ind. 2008). We will not disturb the trial court’s

determination unless there is no evidence supporting the findings, or unless the findings do

not support the judgment. Id. We do not reweigh the evidence, and we consider only the

evidence favorable to the trial court’s judgment. Id. An award of custody to a non-parent

requires clear and convincing evidence, and an appellate court



       1
           The two half-siblings are the children of Mother and Husband.

                                                    3
       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.

Id. (citation omitted).

                                  II. De Facto Custodians

       In awarding child custody to a non-parent, the first step a court must take is to

determine whether the non-parent may be considered a de facto custodian, as defined by

Indiana Code section 31-9-2-35.5. See In re Guardianship of L.L., 745 N.E.2d 222, 229 (Ind.

Ct. App. 2001), trans. denied. If the non-parent is found to be a de facto custodian, then the

non-parent will be made a party to the custody proceedings. Ind. Code § 31-14-13-2.5(c).

For a child under three years of age, a de facto custodian is “a person who has been the

primary caregiver for, and financial support of, a child who has resided with the person for at

least” six months. Ind. Code § 31-9-2-35.5. “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.” Id.

       In the current case, the Child lived with and was supported by the Step-Grandparents

for more than six months before the Step-Grandparents filed for custody on January 10, 2012.

Father does not argue that the Step-Grandparents cared for the Child for less than six

months, or that the Step-Grandparents were not the primary caregivers or financial support

for the Child during that time. Father contends, however, that the clock should toll on the six

month requirement once Father filed for paternity, because Father could not seek custody


                                              4
until paternity was determined, and could not petition to establish paternity until he located

Mother and Child, and further that Father made reasonable efforts to locate Mother and

establish paternity. Father cites no authority to support this position, nor are we aware of

any. It seems clear that if the legislature had wanted to exclude from the determination of de

facto custodian status any time after a paternity action was filed, it could easily have done so.

Instead, the statute excludes time after a custody proceeding has been commenced. The

Step-Grandparents further observe that the structure of the statute itself indicates the

legislature considered the possibility that de facto custodianship could be established before

paternity was established, as de facto custodians are considered in a family law chapter titled

“Custody Following Determination of Paternity.” Ind. Code § 31-14-13.

       In essence, Father asks us to rewrite the law to provide for tolling of the relevant time

period once at petition for paternity, rather than custody, is filed. We are unable to do so.

We agree with the trial court’s determination that the Step-Grandparents were de facto

custodians of the Child. We also note that a determination that a person is a de facto

custodian only allows that person to be a party to the case. It in no way guarantees that he or

she will be awarded custody. To gain custody, that person must additionally rebut the

presumption in favor of awarding custody to the natural parent, and the court must determine

that it is in the child’s best interest to award that person custody, as discussed below.

                        III. Presumption in Favor of Natural Parent

       We have noted that “[i]t 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



                                               5
parent’s presumptively superior right to custody.” L.L., 745 N.E.2d at 227. The presumption

must be rebutted by clear and convincing evidence. Id. at 230. Evidence rebutting the

presumption may, but need not necessarily, include the “parent’s present unfitness, or past

abandonment of the child 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.” Id. at 230-31. A general finding that it would be in the child’s best interest to be

placed in the nonparent’s custody is insufficient to rebut the presumption. Id. at 231.

However, as discussed below, if the presumption is rebutted, then the court must further

engage in a “best interests” analysis. Id.

       The trial court here did not explicitly state that the evidence rebutting the presumption

went to Father’s present unfitness, although that seems to be the implication. We conclude

that the record supports the findings of the court, and those findings support the judgment

that the presumption was rebutted by clear and convincing evidence. Father argues that there

was no evidence that he abandoned the Child, and Step-Grandparents do not contend that he

did. Father also argues that there was no evidence presented that he was unfit. We disagree

with Father, and agree with Step-Grandparents that sufficient evidence was presented to

allow a reasonable trier of fact to conclude that Father’s unfitness was established by clear

and convincing evidence.

       The GAL submitted a lengthy report detailing her review of Father’s medical records,

her inspection of both Father’s and Step-Grandparents’ homes, her observation of some of

Father’s visits with the Child as well as Step-Grandparents’ interactions with the Child, and



                                               6
her interviews of other family members and friends. She additionally performed background

and criminal history checks on both parties. She concluded that Father has a worrisome

mental health history, and was concerned about Father’s ability to parent based on not only

his history but her observation of him, and that he had unrealistic expectations of what a child

requires. She also concluded that the Step-Grandparents provide good care for the Child and

the Child’s half-siblings, and she had no concerns about the Step-Grandparents. She

recommended that the Step-Grandparents be awarded custody of the Child, that Father

continue supervised visits, and that Father undergo a psychiatric evaluation.

       The record shows that Father has had mental illness since childhood. His history

includes multiple suicide attempts, hallucinations, voluntary and involuntary inpatient

admissions to mental health facilities, threats to take others with him when he commits

suicide, and references to wanting to kill other people. He has taken medication, including

lithium, for his illnesses in the past, but is not currently taking medication or in counseling.

The court found that Father does not recognize the gravity or extent of his mental health

condition. While we are not suggesting that a history of even serious mental health issues

would automatically render a parent unfit, where, as here, the issues appear to be

unacknowledged and unresolved, the trial court was right to find that Father’s illness would

put the Child at risk both physically and emotionally. Further, the record also shows that

Father’s interactions with the Child indicate someone who does not have realistic

expectations of what would be involved with being a full-time single parent. We conclude




                                               7
that the trial court did not err when it determined that the Step-Grandparents had, by clear

and convincing evidence, overcome the presumption in favor of awarding custody to Father.

                                IV. Best Interests of the Child

       Finally, having overcome the presumption in favor of the natural parent, the final

hurdle for nonparents is a “best interests” analysis. L.L., 745 N.E.2d at 231. Indiana Code

details considerations relevant to the case at hand. Factors include the interaction of the child

with the parents and siblings, the child’s adjustment to home, and the mental and physical

health of all individuals involved, among other considerations. Ind. Code § 31-14-13-2.

Additionally, where a de facto custodian is involved, the court shall consider the wishes of

the custodian, and the extent to which the custodian has cared for and nurtured the child,

among other considerations. Ind. Code § 31-14-13-2.5.

       Here, in addition to the evidence of Father’s unfitness as outlined above, the record

shows that the Step-Grandparents have provided the Child with a safe and appropriate home,

that their interactions with her are good and reasonable, that they are also caring for the

Child’s two half-siblings, and that a strong emotional bond has formed between the Child

and the Step-Grandparents as well as between the Child and her half-siblings.

       Father’s main argument against placement with the Step-Grandparents being in the

Child’s best interest is that the Step-Grandparents have history with the Indiana Department

of Child Services (“DCS”). While the GAL did not find any DCS records relating to the

Step-Grandparents, although she did find at least one record relating to Father, the Step-

Grandmother testified at trial that years ago there had been an issue with two of their adopted



                                               8
children. It was not clear whether DCS officially became involved. It appears from the

record that the Step-Grandparents had adopted at least two children, in addition to having

natural born children, and it was implied that the adopted children at issue were older when

they were adopted and had some problems. At one point, the female child accused the male

child of molesting her. The record indicates that it was Step-Grandmother herself who

reported this in an effort to get counseling and figure out what to do next. She made sure that

the children were never alone together until the issue was resolved, going so far as to have

the male child sleep at Step-Grandmother’s mother’s house every night in the interim, so that

he would not be in the same house as the female child. Eventually, it seems that the situation

was resolved and the female child recanted; further, it seems that the female child had a

history of somewhat shocking untruthfulness in attempts to get attention. Nonetheless, Step-

Grandmother testified that the male child, now an adult, would not be allowed to be around

the Child alone, out of an abundance of caution.

       Given the whole of Step-Grandparents’ interactions with and care of the Child,

Father’s mental health issues, and Father’s unrealistic expectations of parenting, we conclude

that the trial court did not err in determining that the Child’s best interests would be served

by placing her in the custody of Step-Grandparents.

                                         Conclusion

       Concluding that the trial court correctly determined that the Step-Grandparents were

de facto custodians, and that the evidence supports the findings and the findings support the

judgment, we affirm.



                                              9
      Affirmed.

KIRSCH, J., and VAIDIK, J., concur




                                     10
