      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                     FILED
      regarded as precedent or cited before any                             Jul 25 2018, 9:08 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
      Theo Ciccarelli Cornetta                                  Justin K. Clouser
      Beth Silberstein                                          Kokomo, Indiana
      Indianapolis, Indiana


                                                 IN THE
          COURT OF APPEALS OF INDIANA

      J.S.,                                                     July 25, 2018
      Appellant-Respondent,                                     Court of Appeals Case No.
                                                                34A04-1711-MI-2715
              v.                                                Appeal from the Howard Superior
                                                                Court
      M.C.,                                                     The Honorable George A.
      Appellee-Petitioner                                       Hopkins, Judge
                                                                Trial Court Cause Nos.
                                                                34D04-1705-MI-377, 34D04-1705-
                                                                MI-379



      Altice, Judge.


                                                Case Summary


[1]   J.S. (Petitioner) appeals the trial court’s denial of her petition for third-party

      visitation with M.C.’s (Mother) fraternal twins (the Children).
      Court of Appeals of Indiana | Memorandum Decision 34A04-1711-MI-2715 | July 25, 2018          Page 1 of 8
[2]   We affirm.


                                       Facts & Procedural History


[3]   Petitioner and Mother met while both were living in Kentucky and began

      dating in 2005. Mother moved back to Indiana in 2006 after her father had a

      massive heart attack. The couple broke up at that time but continued to

      communicate and eventually rekindled their relationship. Petitioner moved to

      Indiana in July 2007 and began living in Mother’s home. Without marriage as

      an option in Kentucky or Indiana at the time, the couple had a commitment

      ceremony on September 8, 2007. Shortly thereafter, they executed reciprocal

      wills and powers of attorney. Additionally, Mother was added to Petitioner’s

      health insurance.


[4]   From the start of their relationship, Mother expressed her long-held desire to

      have children. The couple consulted fertility doctors and Mother eventually

      went through several rounds of artificial insemination and then a round of in

      vitro fertilization (IVF). All of these attempts to become pregnant failed, which

      took a toll on the couple’s relationship. Petitioner and Mother ended their

      relationship in 2010, with Petitioner moving out and purchasing her own home.


[5]   Despite the breakup, Mother continued with her quest to become pregnant.

      She discussed her decision with friends and family and indicated a preparedness

      to be a single parent. Mother eventually obtained a loan from her parents to

      pursue additional IVF treatments. Around December 2011, Mother and her

      mother had an initial appointment with a different fertility doctor. The first

      Court of Appeals of Indiana | Memorandum Decision 34A04-1711-MI-2715 | July 25, 2018   Page 2 of 8
      IVF attempt with the new doctor failed in early 2012, but the second attempt

      was successful a few months later.


[6]   Mother and Petitioner had begun talking again in 2012 and were back in an

      intimate relationship by the time of Mother’s successful IVF round. The

      couple, however, continued to maintain separate residences. Petitioner

      attended doctor appointments with Mother and was in the operating room

      when the Children were born on December 12, 2012. Petitioner cut one of the

      umbilical cords. After Mother and the Children returned home, Petitioner

      assisted around the house and with their care, as did others. Petitioner spent

      several nights a week at Mother’s home over the next several months.


[7]   Mother returned to work when the Children were about four months old, and

      she hired a nanny, Kelly Minglin, to care for them and do household chores.

      Minglin, who was with the family for about two years, viewed Mother as the

      Children’s only parent. Minglin, however, observed Petitioner at times provide

      care for the Children. At no point did Petitioner pay Minglin or otherwise

      provide financial support for the care of the Children.


[8]   The couple permanently ended their romantic relationship in 2013, just prior to

      the Children’s first birthday. They remained friends, and Petitioner continued

      to be involved in Mother and the Children’s lives, including sometimes going

      on vacations and spending holidays with them. Once the Children started

      preschool, Petitioner, whom the Children referred to as “Dot”, picked them up

      from school and watched them on Monday evenings so that Mother could run


      Court of Appeals of Indiana | Memorandum Decision 34A04-1711-MI-2715 | July 25, 2018   Page 3 of 8
       errands or work late. Rita Daily, a family friend, did the same for Mother on

       Tuesday nights. Daily, Petitioner, and others often assisted on other nights too.


[9]    Mother’s friendship with Petitioner began to slowly sour in the summer of

       2016, and Mother started to reduce the family’s contact with her. Petitioner,

       however, continued to watch the Children on Mondays and even attended a

       Thanksgiving meal with Mother, the Children, and Mother’s extended family.

       Following a heated conversation on December 12, 2016, Mother cut all ties

       with Petitioner and refused any further contact between Petitioner and the

       Children. Mother felt she was acting in the best interests of the Children even

       though they were bonded with Petitioner.


[10]   On April 6, 2017, under a separate cause number for each child, Petitioner filed

       a verified third-party petition for parenting time. The causes proceeded in

       tandem and were heard together, with evidentiary hearings held on August 31

       and September 22, 2017. The trial court took the matter under advisement and

       then issued a written ruling in each cause on October 26, 2017, denying the

       petitions. Petitioner appeals, and the causes have been consolidated on appeal.

       Additional facts will be provided below as needed.


                                           Discussion & Decision


[11]   On review, we will set aside the trial court’s findings of fact and conclusions

       only if they are clearly erroneous, giving due regard to the opportunity of the

       trial court to judge the credibility of witnesses. A.C. v. N.J., 1 N.E.3d 685, 688

       (Ind. Ct. App. 2013). “A judgment is clearly erroneous when the record

       Court of Appeals of Indiana | Memorandum Decision 34A04-1711-MI-2715 | July 25, 2018   Page 4 of 8
       contains no evidence supporting the findings, the findings fail to support the

       judgment, or when the trial court applies an incorrect legal standard to properly

       found facts.” Id. “As we have repeatedly observed in child custody cases, trial

       courts are in the position to see the parties, observe their conduct and

       demeanor, and hear their testimony; therefore, their decisions receive

       considerable deference on appeal.” Id. (quoting Nunn v. Nunn, 791 N.E.2d 779,

       787 (Ind. Ct. App. 2003)).1


[12]   To establish grounds for third-party visitation, a petitioner must first

       demonstrate the existence of a custodial and parental relationship with the

       children. Worrell v. Elkhart Cty. Office of Family & Children, 704 N.E.2d 1027,

       1028 (Ind. 1998). After this threshold requirement is established, the petitioner

       must show that visitation with petitioner would be in the best interests of the

       children. Id. In other words, if the petitioner does not establish “the threshold

       requisite of [a] custodial and parental relationship”, the court may not proceed

       to a best interest determination. Id. (quoting Tinsley v. Plummer, 519 N.E.2d

       752, 754 (Ind. Ct. App. 1988)). The threshold requirement recognizes the

       constitutional dimension of parental rights and the well-established

       presumption that “a fit parent acts in the child’s best interests in making

       decisions concerning visitation with third parties.” A.C., 1 N.E.3d at 697.




       1
           Pure questions of law are reviewed de novo. Id. at 689. In this case, however, the issues turn on the facts.


       Court of Appeals of Indiana | Memorandum Decision 34A04-1711-MI-2715 | July 25, 2018                  Page 5 of 8
[13]   Here, Petitioner clearly fell within a general class of individuals to which third-

       party visitation may be awarded. See id. at 697 (former same-sex partner had

       standing to seek visitation where “parties originally intended for the biological

       mother’s partner to fulfill the role of the child’s second parent and actively

       encouraged the development of a parental bond between the partner and the

       child”); c.f. Brown v. Lunsford, 63 N.E.3d 1057, 1064-65 (Ind. Ct. App. 2016)

       (holding that trial court abused its discretion by granting visitation to mother’s

       long-term, live-in boyfriend and distinguishing A.C., 1 N.E.3d 685, because the

       same-sex couple in A.C. could not be legally married in Indiana at the time of

       their domestic relationship). Petitioner, however, was still required to establish

       that she in fact had a custodial and parental relationship with the Children.


[14]   Petitioner’s appellate argument is largely based on her assertions that the

       Children “were born of her relationship with [Mother]” and that the two co-

       parented the Children. Appellant’s Brief at 9. But Mother presented ample

       evidence to the contrary. Further, this case is easily distinguishable from A.C.,

       where:


               Mother and Partner entered into a same-sex domestic
               relationship and lived together for several years. They had a
               commitment ceremony. They decided together to have a child
               and that Mother would carry the child conceived through
               artificial insemination. Partner was present at the child’s birth,
               and the three lived together as a family. The child referred to
               Mother and Partner as “Mama” and “Mommy,” respectively.
               Mother listed Partner as the child’s co-parent on school
               enrollment paperwork, and the two discussed Partner adopting


       Court of Appeals of Indiana | Memorandum Decision 34A04-1711-MI-2715 | July 25, 2018   Page 6 of 8
               the child. When the child was two years old, Mother and
               Partner ended their relationship.


       Brown, 63 N.E.3d at 1064-65 (internal citation to A.C. omitted).


[15]   Like in A.C., the parties had lived together for a number of years, had solidified

       their relationship with a commitment ceremony because same-sex marriage was

       not yet legal, and had decided to have children together, with Mother carrying

       any children. Additionally, Petitioner was in the operating room when the

       Children were born, and she cut one of the umbilical cords.


[16]   Unlike A.C., however, the couple broke up for over a year during which time

       Mother continued to pursue having children without Petitioner. Mother

       obtained a loan from her parents, sought out a new fertility doctor, and began

       IVF treatments with the assistance of her family. Mother had already begun the

       eventually-successful IVF round when she and Petitioner rekindled their

       relationship. Mother then welcomed Petitioner’s involvement in the doctor

       appointments and the birth of the Children, but she made clear that Petitioner

       would have no “formal legal right over the [C]hildren”. Appellant’s Brief at 7.

       After the birth, Petitioner maintained a separate residence for herself, spending

       several nights per week at Mother’s. Petitioner helped with the Children but

       did not provide financially for them. The parties ended their intimate

       relationship before the Children reached the age of one. Although Petitioner

       remained actively involved with the family over the next few years, she did not

       do so in a custodial or parental manner. The facts favorable to the judgment


       Court of Appeals of Indiana | Memorandum Decision 34A04-1711-MI-2715 | July 25, 2018   Page 7 of 8
       reveal that Mother has always been a single parent to the Children functioning

       with the loving assistance of others, including Petitioner.


[17]   Contrary to Petitioner’s assertion on appeal, the trial court did not

       discriminatorily focus on her sexual orientation or fail to relate its findings to its

       judgment. The trial court’s findings properly focus on facts relevant to its

       determination that Petitioner did not act in a custodial and parental relationship

       with regard to the Children, and the nature of Mother and Petitioner’s

       relationship was relevant to this determination. Most notably, Mother

       unilaterally decided to initiate the successful IVF round with the intent to be a

       single parent, Petitioner never provided financially for the Children, Mother

       and Petitioner did not live as a family unit after Mother gave birth to the

       Children, and Mother made all parental decisions.


[18]   Under the specific facts of this case, the trial court’s conclusion that Petitioner

       failed to demonstrate the existence of a custodial and parental relationship

       between herself and the Children is not clearly erroneous. Accordingly,

       Petitioner lacked standing to seek visitation with the Children and no best-

       interest determination was required.


[19]   Judgment affirmed.


       Najam, J. and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 34A04-1711-MI-2715 | July 25, 2018   Page 8 of 8
