                                                                              Oct 31 2013, 5:25 am
 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.



ATTORNEYS FOR APPELLANTS:                          ATTORNEY FOR APPELLEES:

BRYAN L. CIYOU                                     R. PATRICK MAGRATH
LORI S. SCHMELTZER                                 Alcorn, Goering & Sage, LLP.
Ciyou & Dixon, P.C.                                Madison, Indiana
Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

IN THE MATTER OF CUSTODY OF:                       )
                                                   )
L.T. and A.B, minor children,                      )
                                                   )
R.L. and P.L.,                                     )
                                                   )
       Appellants-Petitioners,                     )       No. 39A05-1305-MI-235
                                                   )
           vs.                                     )
                                                   )
A.B. and R.B.,                                     )
                                                   )
       Appellees-Respondents.                      )

                    APPEAL FROM THE JEFFERSON CIRCUIT COURT
                     The Honorable Sally A. Blankenship, Special Judge
                            Cause Nos. 39C01-1211-MI-1033



                                        October 31, 2013

                 MEMORANDUM DECISION – NOT FOR PUBLICATION

MATHIAS, Judge
       R.L. and P.L. (“Grandparents”) appeal the Jefferson Circuit Court’s order

dismissing Grandparents’ petition to modify custody of L.T. and A.J.B. (“the Children”)

under principles of res judicata. Grandparents present the sole issue of whether the trial

court erred in concluding that res judicata bars their petition.

                              Facts and Procedural History

       The Children’s mother, A.B. (“Mother”), is the granddaughter of Grandparents.

Eight-year-old L.T.’s biological father is not involved in L.T.’s upbringing. On May 18,

2006, Mother married R.B. and gave birth to A.J.B. approximately three months later.

R.B. (“Father”) is A.J.B.’s biological father.        A.J.B. was diagnosed with Downs

Syndrome. He is now six years old.

       In 2006, just before A.J.B. was born, Mother and Father, who live in Virginia, sent

seventeen-month-old L.T. to live with Grandparents in Indiana for a period of one to four

months.    Mother and Father were struggling financially and were having difficulty

providing for the child. Approximately eight months later, Mother and Father again sent

L.T. and eight-month-old A.J.B. to live with Grandparents for a period of four to five

months. In September 2007, the Children were once more sent to live with Grandparents.

Two months later, in November 2007, Mother and Father consented to Grandparents’

legal guardianship of the Children so that Grandparents could obtain medical insurance

benefits for the Children.

       Four years later, on November 9, 2011, Mother and Father filed a petition to

terminate Grandparents’ guardianship. On July 31, 2012, over Grandparents’ objection,

and after a two-day hearing, the trial court terminated the guardianship. Grandparents

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appealed and another panel of this court affirmed the trial court’s order, holding that

Grandparents had not “overcome the ‘important and strong presumption’ that a child’s

best interests are best served by placement with his or her natural parent” because

Grandparents failed to prove by clear and convincing evidence that “the child’s best

interests are ‘substantially and significantly’ served by the third-party placement.” In re

Guardianship of L.R.T., 979 N.E.2d 688, 690 (Ind. Ct. App. 2012) trans. denied (quoting

In re K.I., 903 N.E.2d 453, 459 (Ind. 2009)).1 On February 28, 2013, the Indiana

Supreme Court denied Grandparents’ request for transfer. L.R.T. v. A.B., 983 N.E.2d

1157 (Ind. 2013).

         On November 7, 2012, a month before this court issued its opinion reviewing the

trial court’s termination of Grandparents’ guardianship of the Children, Grandparents

filed a petition to “Establish/Modify Custody in the Person of De Facto Custodians”

under a new cause number. On March 14, 2013, after this court had issued its opinion

and our supreme court denied transfer, Mother and Father filed a motion to dismiss

Grandparents’ petition, arguing that Grandparents were seeking to re-litigate the trial


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    This court concluded that
       [t]he parties agree that the reason for the Children’s placement with Guardians was
       Mother’s and Father’s lack of stable housing and employment. After hearing evidence of
       current conditions, the trial court found that Father was employed in a factory making
       $16.63 per hour and Mother was employed at Subway, they had decided to buy a house
       that would provide suitable family accommodations, and Mother had made inquiries to
       address A.J.B.’s special educational needs. The trial court found that both Children could
       be expected to make the necessary adjustments. Guardians’ strenuous argument that
       Mother and Father have shown instability in the past and likely cannot adequately
       address A.J.B.’s special needs in the present is an invitation to reweigh the evidence.
       This Court is prohibited from reweighing the evidence. Accordingly, we decline to do
       so.
Guardianship of L.R.T., 979 N.E.2d at 691 (internal citation omitted).


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court’s prior order terminating their guardianship and that the petition was barred by

principles of res judicata.   Specifically, Mother and Father noted that in the prior

guardianship case, “[Grandparents] argued to [the Indiana Court of Appeals and the

Indiana Supreme Court] that they were the de facto custodians” and “[t]he Court of

Appeals included a review of the de facto custodian statute [in its] Opinion affirming the

trial court’s Termination of the Guardianship.” Appellant’s App. p. 54. Mother and

Father further emphasized that “[t]he Court of Appeal[s] specifically held that [the] legal

standard governing the burden of proof required to be met by any third party seeking

custody of a child is identical in guardianship and de facto custody proceedings.” Id.

       The trial court, by a special judge, held a hearing on Mother and Father’s motion

to dismiss on April 9, 2013. On May 13, 2013, the trial court issued an order granting the

motion to dismiss. The trial court’s order provided, in part:

       5. The Court of Appeals in its opinion as to the custody of L.R.T. and
       A.J.B., did discuss the status of [Grandparents] as de facto custodians and
       the standard of change of custody as it related to a de facto custodian as
       contemplated in I.C. §31-14-13-2.5.

       6. The Court finds based on the foregoing that this matter has been litigated
       and Res Judicata applies and that further review or further request for
       modification cannot be initiated in a new cause of action.

Appellant’s App. pp. 7-8.

       Grandparents now appeal.

                                Discussion and Decision

       Indiana Trial Rule 12(B)(6) tests the legal sufficiency of a claim, rather than the

facts supporting it. City of South Bend v. Century Indem. Co., 821 N.E.2d 5, 9 (Ind. Ct.


                                             4
App. 2005), trans. denied. We review a trial court’s grant or denial of a Trial Rule

12(B)(6) motion to dismiss de novo, viewing the complaint in the light most favorable to

the non-moving party and drawing every reasonable inference in favor of that party.

Town of Plainfield v. Town of Avon, 757 N.E.2d 705, 710 (Ind. Ct. App. 2001), trans.

denied. We must stand in the trial court’s shoes, looking only at the complaint itself, and

determine whether the trial court erred when it applied the law. City of South Bend, 821

N.E.2d at 9; D.L. v. Huck, 978 N.E.2d 429, 432-33 (Ind. Ct. App. 2012), aff’d on reh’g.

Where it is clear that the facts alleged in the complaint are insufficient to support relief

under any set of circumstances, the trial court’s grant of the motion to dismiss is proper.

D.L., 978 N.E.2d at 432.

       Res judicata prevents the repetitious litigation of disputes that are essentially the

same where a final judgment has been rendered on the merits by a court of competent

jurisdiction. See Matter of Sheaffer, 655 N.E.2d 1214, 1217 (Ind. 1995); French v.

French, 821 N.E.2d 891, 896 (Ind. Ct. App. 2005). The principles of res judicata are

divided into two branches: claim preclusion and issue preclusion, the latter also referred

to as collateral estoppel.   French, 821 N.E.2d at 896.       Collateral estoppel bars the

subsequent re-litigation of the same fact or issue where the fact or issue was necessarily

adjudicated in a former suit and the same fact or issue is presented in a subsequent action.

In re L.B., 889 N.E.2d 326, 333 (Ind. Ct. App. 2008). “[I]t has long been the case that res

judicata ‘embraces not only what was actually determined, but every matter which the

parties could have had litigated in the cause.      The judgment in the former case is

conclusive and bars a subsequent action if an opportunity was presented to litigate the

                                             5
entire subject matter in the first action.’” Finke v. N. Ind. Pub. Serv. Co., 899 N.E.2d 5,

10 (Ind. Ct. App. 2008) (quoting Smith v. Lake County, 863 N.E.2d 464, 470 (Ind. Ct.

App. 2007)).

       In their prior appeal, Grandparents argued that they were de facto custodians of the

Children and that, as such, “‘there would be no burden of proof as with an initial custody

determination or Mother and Father/Step–Father would have to prove a substantial

change in circumstances to have custody modified back to them.’” Guardianship of

L.R.T., 979 N.E.2d at 689-90 (quoting Appellants’ Br. at 27). After examining Indiana’s

de facto custodian statute and relevant case law, this court affirmed the trial court’s order,

emphasizing that

       although the party seeking a change of custody must persuade the trial court
       that modification is in the best interests of the child and there is a
       substantial change in one of the afore-mentioned statutory factors, “these
       are modest requirements where the party seeking to modify custody is the
       natural parent of a child who is in the custody of a third party.” The
       “parent comes to the table with a strong presumption” and the burden
       imposed by the statutory requirements is “minimal.” When the parent
       meets this “minimal burden,” the third party must prove by clear and
       convincing evidence that the child’s best interests are substantially and
       significantly served by placement with another person. If the third party
       carries the burden, custody of the child remains in the third party.
       “Otherwise, custody must be modified in favor of the child’s natural
       parent.”

Id. at 691 (quoting In re K.I., 903 N.E.2d 453, 459, 461-62 (Ind. 2009) (internal citations

omitted).

       Grandparents argue that the doctrine of res judicata does not bar their petition

because “[t]he previous matter involving the parties was a termination of guardianship

proceeding, and [Grandparents] were never adjudicated de facto custodians, and never

                                              6
motioned for custody of the Children.” Appellant’s Br. at 7. They assert, “[s]imply

because [Grandparents] argued on appeal that the guardianship trial court erred in failing

to give deference to the de facto custody statutes, does not mean that the issue of if

[Grandparents] are de facto custodians was actually litigated and determined.”

Appellant’s Br. at 7-8.

       We disagree. This court previously affirmed the trial court’s determination in the

guardianship proceeding that Grandparents failed to overcome the presumption in favor

of Mother and Father, the natural parents. In doing so, we noted that the apparent

purpose of the de facto custodian statute is not to weaken the presumption in favor of the

natural parent, but, rather, to ensure that a third party seeking custody of a child has

standing to do so. Guardianship of L.R.T., 979 N.E.2d at 690. Indeed, the strong

presumption in favor of natural parents applies as a threshold issue whether the case is a

guardianship case or a de facto custodian case. See In re Guardianship of L.L., 745

N.E.2d 222, 230 (Ind. Ct. App. 2001). In both types of proceedings, the “nonparent

seeking to retain custody must bear the burden of overcoming the parent’s presumptively

superior right to custody.” Id. at 227.

       Therefore, when Grandparents attempted to relitigate custody of the Children by

classifying their subsequent claim as one seeking to establish de facto custody rather than

one opposing the termination of a guardianship, the trial court properly held that the

threshold issue applicable in both cases, whether Grandparents had overcome the

presumption in favor of the natural parents, had already been decided in favor of Mother

and Father and that the cause was barred under the doctrine of res judicata.

                                             7
                                       Conclusion

      For all of these reasons, we conclude that the trial court’s dismissal of

Grandparents’ petition was proper under principles of res judicata.

      Affirmed.

NAJAM, J., and BROWN, J., concur.




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