                                                                             FILED
                                                                       Apr 06 2020, 11:26 am

                                                                             CLERK
                                                                        Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court




ATTORNEY FOR APPELLANT
Robert J. Palmer
May Oberfell Lorber
Mishawaka, Indiana



                                             IN THE
     COURT OF APPEALS OF INDIANA

In the Paternity of M.S., L.S.                               April 6, 2020
and S.S.                                                     Court of Appeals Case No.
                                                             19A-JP-1595
Maria Arriaga,
                                                             Appeal from the
Appellant-Proposed Intervenor,                               St. Joseph Probate Court
         v.                                                  The Honorable
                                                             Jason A. Cichowicz, Judge
State of Indiana as Next Friend;                             The Honorable
                                                             Graham C. Polando, Magistrate
Gabriela Ivonne De Landa,
                                                             Trial Court Cause No.
(Mother), and Samuel Salazar,
                                                             71J01-1012-JP-1164
(Father),
Appellees-Respondents.



Tavitas, Judge.




Court of Appeals of Indiana | Opinion 19A-JP-1595 | April 6, 2020                               Page 1 of 27
                                               Case Summary
[1]   Maria Arriaga appeals the trial court’s order regarding a petition for

      modification of custody filed by Samuel Salazar (“Father”). We reverse and

      remand.


                                                       Issues
[2]   Arriaga raises four issues, which we consolidate and restate as:


               I.       Whether the trial court erred by denying Arriaga’s motion
                        to reopen the evidence.

               II.      Whether the trial court erred by denying Arriaga’s motion
                        to intervene.

                                                        Facts
[3]   Father and Gabriela De Landa (“Mother”) are the parents of M.S., born in

      2009; L.S. (the “Child”), born in 2010; and S.S., born in 2012 (collectively, the

      “Children”). Father and Mother were never married, and Father’s paternity of

      each of the Children was established by a paternity affidavit. Shortly before the

      Child’s birth, the State brought a Title IV-D proceeding regarding support for

      M.S.; a similar action regarding the Child was filed in February 2011 and

      consolidated with the action regarding M.S. In April 2011, the trial court

      entered an order confirming Father’s paternity of M.S. and the Child, granting




      Court of Appeals of Indiana | Opinion 19A-JP-1595 | April 6, 2020         Page 2 of 27
      Mother custody of M.S. and the Child, and ordering Father to pay child

      support. 1


[4]   Despite the establishment of paternity of the Child, there is a possibility that the

      Child’s biological father is Jerry Hernandez, Arriaga’s son. In June 2011,

      Mother left the Child with Arriaga, and the Child has remained in Arriaga’s

      care since that time.


[5]   In March 2018, Father filed a petition to modify the existing custody and child

      support order regarding the Children. Father alleged that the Child had been in

      Arriaga’s care “for the past year” but that the Child should be in the care of a

      parent instead of a third party. Appellant’s App. Vol. II p. 25. Regarding M.S.

      and S.S., Father alleged that: (1) by agreement with Mother, Father had

      custody of M.S. and S.S. from May 2017 2 until November 2017, when Mother

      took back custody of M.S. and S.S.; (2) after returning to Mother’s care, M.S.

      and S.S. were missing school, and their grades were dropping; (3) while M.S.

      and S.S. were in Father’s care, Mother was convicted of two drug-related

      felonies; 3 (4) Mother moved four times in the preceding year; and (5) M.S.




      1
          A similar order was entered in December 2012 regarding the paternity of S.S.
      2
       Father has convictions for possession of a controlled substance in 2014 and resisting law enforcement and
      driving without a license in 2016. Father was released from the Indiana Department of Correction in May
      2017.
      3
        The initial guardian ad litem (“GAL”) report indicates that Mother was charged with possession of cocaine,
      a Level 6 felony; unlawful possession of a legend drug, a Level 6 felony; and possession of marijuana, a Class
      B misdemeanor. According to the report: “She entered a plea and was sentenced on all charges on January
      24, 2018.” Appellant’s App. Vol. II p. 33.

      Court of Appeals of Indiana | Opinion 19A-JP-1595 | April 6, 2020                                Page 3 of 27
      reported being inappropriately touched by Mother’s fifteen-year-old brother,

      who regularly cared for the Children when the Children were with Mother.

      The trial court then appointed a GAL. The trial court also entered a

      provisional order giving custody of M.S. and S.S. to Father and continued the

      Child’s placement with Arriaga.


[6]   Arriaga filed a motion to intervene in September 2018 and alleged that Arriaga

      was the Child’s de facto custodian. Arriaga later filed a “Motion for Formal

      Recognition of Arriaga Status and Custody Rights” in December 2018. In her

      motion for recognition of her custody rights, Arriaga noted: “It has always

      been, and continues to be, in [the Child’s] best interests for [Arriaga] to be

      recognized and treated as her legal custodian, since [Arriaga] has been her

      primary care provider virtually all of her life.” 4 Id. at 49.


[7]   In the initial GAL report, the GAL recommended that the Child remain in

      Arriaga’s care because “[t]hat placement appears to be the least disruptive to

      her life and maintains the status quo.” Id. at 37. In the later, updated GAL’s

      report, the GAL noted that Arriaga “now feels that [the Child] should be in the

      custody of [Mother]. If, however, that is not possible, she wants to retain [the

      Child] in her custody.” Id. at 52. The GAL ultimately recommended that all of

      the Children be placed with Father.




      4
        Indiana Code Section 31-17-2-3 provides: “A child custody proceeding is commenced in the court by: . . .
      (2) a person other than a parent by filing a petition seeking a determination of custody of the child.”

      Court of Appeals of Indiana | Opinion 19A-JP-1595 | April 6, 2020                               Page 4 of 27
[8]   At the March 2019 evidentiary hearing, 5 the GAL, Mother, Father, and Arriaga

      testified. The GAL testified that Mother and Arriaga alleged Father was

      involved in gang activity and used drugs. Mother provided the GAL with

      photographs and an audio recording, which were taken by M.S. The GAL did

      not offer the photographs or recording into evidence. The GAL stated the

      photographs were not clear, and as for the recording, the GAL testified, in part:


               It was a discussion. I believe it was after I had gone to the home
               and spoke [to] one [of] the children. Then there was a discussion
               between [M.S.] and [Father] and his wife with regard to – I guess
               I don’t – talking about why [M.S.] should stay in their custody
               and why Mother shouldn’t have custody of – of the child, and
               some – kind of a little bit of an argument between them. And it
               apparently has been recorded. It had made reference to usage of
               drugs or possible usage of drugs. . . .


      Tr. Vol. II p. 27. On cross-examination, Arriaga offered the photos referenced

      by the GAL into evidence, but she did not offer the recording or ask the GAL

      why he did not offer it into evidence himself. The GAL testified that it would

      be beneficial for the Child to be with her siblings and recommended that Father

      be granted custody of all three children.


[9]   Arriaga testified that the Child has lived with her since the Child was an infant

      and that Arriaga was willing to have all of the Children live with her. Arriaga




      5
        It appears that additional evidence was presented at a hearing in August 2018, before Arriaga filed her
      motion to intervene and motion to establish her custody rights. We were not provided with the transcript of
      that hearing.

      Court of Appeals of Indiana | Opinion 19A-JP-1595 | April 6, 2020                               Page 5 of 27
       further testified that she still believed the Children should live with

       Mother. Arriaga also testified as follows:


                Q. Do you feel they should be with you or with their mother?


                A. That is hard because [the Child] has always lived with me,
                and the other children live with [Mother]. But in the end, I do
                believe that all three should be together.


       Id. at 70. Mother also testified that, if she did not get custody of the children,

       she would prefer that Arriaga get custody. During closing arguments, Arriaga’s

       counsel argued that there was no reason to change the current custody

       situation. Counsel proposed two solutions: (1) “leave things status quo until we

       can move down the line a little further and establish more stability and get more

       evidence”; or (2) “put the kids together in either Mom’s custody or [Arriaga’s]

       custody.” Id. at 85. At the conclusion of the March 21, 2019 hearing, the trial

       court took the matter under advisement.


[10]   In April 2019, Arriaga filed a motion to submit additional evidence and sought

       to submit the recording of Father and his wife made by M.S. The trial court

       denied Arriaga’s motion.


[11]   In May 2019, the trial court issued an order granting Father’s motion to modify

       custody. The trial court noted that “all Parties appeared to concede that Father

       may not be [the Child’s] biological father, and that [Arriaga] is indeed the

       mother of the man who is—or at least might be” the biological father.

       Appellant’s App. Vol. II p. 10. As for Arriaga, the trial court denied each of her

       Court of Appeals of Indiana | Opinion 19A-JP-1595 | April 6, 2020          Page 6 of 27
       motions. Specifically, the trial court denied Arriaga’s motion to intervene

       because it determined Arriaga was not a de facto custodian. The trial court

       found:


                De facto custodians must have provided care for a Child for
                certain periods of time: six months for certain younger children,
                and one year for certain older children. Ind. Code § 31-9-2-35.5.
                However, “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.


                As above, this proceeding “commenced” with respect to L. on
                February 9, 2011, under the cause number, since consolidated
                into this one, of 71J01-1102-JP-93. The Court entered its order
                establishing paternity a little over two months later, April 26,
                2011. Given [the Child’s] December, 2010, birthdate, any period
                of time another person cared for her cannot have reached six
                months before a child custody proceeding commenced.


                Because Petitioner is not a de facto custodian, her intervention is
                not mandatory under Ind. Code 31-14-13-2.5(c), nor is she
                entitled to the quasi-presumption in favor of her custody
                established by Ind. Code 31-14-13[-]2.5(d). She may still,
                however, be entitled to discretionary intervention under Indiana
                Rule of Trial Procedure 24, and may be entitled to custody as a
                nonparent pursuant to Ind. Code 31-17-2-3(2), subject to the
                parent’s constitutional right to raise the Child.


       Id. at 10-11.


[12]   The trial court then considered the factors of Indiana Code Section 31-14-13-2,

       granted Father’s motion to modify custody, and issued an order “awarding

       Court of Appeals of Indiana | Opinion 19A-JP-1595 | April 6, 2020            Page 7 of 27
       custody of all three children to Father.” Id. at 13. The trial court granted

       Mother supervised parenting time and denied each of Arriaga’s motions. The

       trial court further found that it had no authority to grant visitation between

       Arriaga and the Child.


[13]   Arriaga filed a motion to reconsider, which was deemed denied pursuant to

       Indiana Trial Rule 53.4. Arriaga then filed a motion to correct error for the trial

       court to consider “newly discovered material evidence” of the recording. Id. at

       68. Arriaga claimed that the GAL “failed to fulfill his duty in representing the

       children” when he did not present the recording to the trial court. Id. at 69.

       The trial court denied Arriaga’s motion to correct error. Arriaga now appeals.


                                                      Analysis
[14]   At the outset, we note that no appellee’s brief was filed in this case. “When an

       appellee fails to submit a brief, we apply a less stringent standard of review with

       respect to the showing necessary to establish reversible error.” In re Paternity of

       S.C., 966 N.E.2d 143, 148 (Ind. Ct. App. 2012), aff’d on reh’g, 970 N.E.2d 248

       (Ind. Ct. App. 2012), trans. denied. “In such cases, we may reverse if the

       appellant establishes prima facie error, which is an error at first sight, on first

       appearance, or on the face of it.” Id. “Moreover, we will not undertake the

       burden of developing legal arguments on the appellee’s behalf.” Id.


                                        I. Motion to Reopen Evidence

[15]   Arriaga argues that the trial court erred by denying her motion to reopen the

       evidence. Evidence must be offered during the course of a trial, and it is a

       Court of Appeals of Indiana | Opinion 19A-JP-1595 | April 6, 2020            Page 8 of 27
       matter of discretion whether a trial court will permit a party to present

       additional evidence after the close of all evidence. In re D.Q., 745 N.E.2d 904,

       908 (Ind. Ct. App. 2001). We will disturb the trial court’s decision only if there

       is a clear abuse of discretion. Id.


[16]   Here, Arriaga sought to reopen the evidence to introduce the recording of

       Father and his wife. This recording was apparently taken by M.S. and provided

       to the GAL by Mother. The content of the recording was discussed in the

       GAL’s updated report and discussed at length during the evidentiary hearing,

       and we see no reason why the evidence could not have been offered at that

       time. 6 We have held that a trial court does not abuse its discretion in refusing

       to reopen the evidence “when it plainly appears that such evidence could have

       been offered earlier.” Preuss v. McWilliams, 141 Ind. App. 602, 607, 230 N.E.2d

       789, 792 (1967). The recording plainly could have been offered earlier, and the

       trial court did not abuse its discretion by denying Arriaga’s motion to reopen

       the evidence. 7




       6
         Moreover, we have not been provided with the recording. It appears, however, that the actual recording
       would have been cumulative of the GAL’s testimony regarding the recording. Arriaga has failed to
       demonstrate any prejudice from the denial of her motion to reopen the evidence. See Ind. Appellate Rule
       66(A) (“No error or defect in any ruling or order or in anything done or omitted by the trial court or by any of
       the parties is ground for granting relief or reversal on appeal where its probable impact, in light of all the
       evidence in the case, is sufficiently minor so as not to affect the substantial rights of the parties.”).
       7
         Arriaga also contends that the GAL “did not introduce a copy of the recording into evidence, did not
       provide a transcript of the recording, did not go into detail regarding the contents of the recording, and
       apparently did not provide a copy of the recording to any of the other interested parties in the case,” and that
       the GAL “failed to fulfill his statutory duties” and such a “failure can only be remedied by reopening the
       evidence.” Appellant’s Br. pp. 23-25. Arriaga, however, cites no authority supporting her assertion that the


       Court of Appeals of Indiana | Opinion 19A-JP-1595 | April 6, 2020                                   Page 9 of 27
                               II. Motion to Intervene/De Facto Custodian

[17]   Arriaga argues that the trial court erred by denying her motion to intervene.

       The grant or denial of a petition to intervene is within the discretion of the trial

       court and is reviewed for an abuse of that discretion. Granite State Ins. Co. v.

       Lodholtz, 981 N.E.2d 563, 566 (Ind. Ct. App. 2012), trans. denied. An abuse of

       discretion occurs when the trial court’s decision is clearly against the logic and

       effect of the facts and circumstances before the court or the reasonable and

       probable inferences to be drawn therefrom. Id.


[18]   Arriaga’s motion to intervene specifically alleged that Arriaga was the Child’s

       de facto custodian. The trial court, however, found that Arriaga did not qualify

       as a de facto custodian. On appeal, Arriaga argues that the trial court erred by

       denying her motion to intervene and by granting custody to Father. 8 We

       conclude that the trial court erred when it found Arriaga was not a de facto

       custodian and that, as a result, Arriaga was harmed when the trial court failed




       GAL was required to introduce a copy of the recording into evidence. Arriaga has waived this argument.
       See Ind. Appellate Rule 46(A)(8)(a).
       8
         The dissent contends that we are addressing issues not raised on appeal. We disagree. We acknowledge
       that Arriaga’s appellate argument on these issues lacks clarity. By denying Arriaga’s motion to intervene, the
       trial court left Arriaga in an unfortunate situation; Arriaga is not a party and cannot challenge the trial court’s
       custody decision if she is not a party to the action. Arriaga argues, “Assuming that the probate court’s ruling
       that [Arriaga] does not meet the definition of ‘de facto custodian,’ thereby giving her a right to intervene
       pursuant to Trial Rule 24(A)(1) is correct, [Arriaga] nevertheless qualifies for intervention of right under Trial
       Rule 24(A)(2).” Appellant’s Br. p. 25. Arriaga “claim[ed] an interest” in the modification of custody as the
       Child’s “custodian.” Id. Arriaga does specifically argue that the trial court erred by denying her motion to
       intervene, and we agree, although on a different basis than she argues. Arriaga also specifically argued to the
       trial court that she was the Child’s de facto custodian, and the trial court specifically addressed whether
       Arriaga was a de facto custodian. Under these circumstances, we will address the issue.

       Court of Appeals of Indiana | Opinion 19A-JP-1595 | April 6, 2020                                    Page 10 of 27
       to follow the relevant statutory provisions in ruling on Father’s petition to

       modify custody.


[19]   In denying Arriaga’s motions, the trial court first determined that Arriaga was

       not a de facto custodian. Indiana Code Section 31-9-2-35.5 defines “de facto

       custodian” 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. The term does not include a person providing care for a
                child in a foster family home (as defined in IC 31-9-2-46.9).


[20]   The following are the relevant dates in this action. The Child was born on

       December 22, 2010. The State brought a Title IV-D proceeding regarding

       support for the Child in February 2011. In April 2011, the trial court entered an

       order, in part, confirming Father’s paternity of the Child, granting Mother

       custody of the Child, and ordering Father to pay child support. In

       approximately June 2011, when the Child was “six months old,” the Child

       began living with Arriaga. Tr. Vol. II p. 61. The Child was still living with

       Arriaga when Father filed a petition to modify custody in March 2018.

       Court of Appeals of Indiana | Opinion 19A-JP-1595 | April 6, 2020                Page 11 of 27
[21]   In determining the exclusion for the “period after a child custody proceeding

       has been commenced” under Indiana Code Section 31-9-2-35.5, the trial court

       found that “this proceeding ‘commenced’ with respect to [the Child] on

       February 9, 2011 . . . .” Appellant’s App. Vol. II p. 10. The trial court then

       found that, given the Child’s December 2010 birthdate, “any period of time

       another person cared for her cannot have reached six months before a child

       custody proceeding commenced.” Id. at 11 (emphasis added).


[22]   The trial court’s finding implies that the six-month required minimum period

       for a de facto custodian determination, which applies here, can run only before

       but not after a custody determination. The trial court’s finding does not

       account for the fact that, although the Title IV-D proceeding was commenced

       in February 2011, it was concluded in April 2011, and Arriaga has been caring

       for the Child since June 2011. The relevant time period for the de facto

       custodian determination, however, did not start until after the Title IV-D child

       custody proceeding ended and concluded when Father filed his petition to

       modify custody in March 2018.


[23]   The trial court’s finding would mean that, after a child custody proceeding has

       been commenced, the required minimum period for a de facto custodian

       determination is forever tolled and cannot be restarted. Under that

       interpretation, once a child is subject to an initial custody determination, the

       child could never have a de facto custodian. We hold that the six-month

       required minimum period under Indiana Code Section 31-9-2-35.5 can be

       established either before a child custody proceeding has been commenced or

       Court of Appeals of Indiana | Opinion 19A-JP-1595 | April 6, 2020        Page 12 of 27
       after such an initial proceeding has been concluded. Thus, the trial court

       misinterpreted the statute when it determined that Arriaga is not a de facto

       custodian of the Child.


[24]   Our Courts have not yet had an opportunity to interpret the provision in the

       statute that excludes from the period required to establish de facto custody

       “[a]ny period after a child custody proceeding has been commenced,” so we are

       presented with an issue of first impression. “Matters of statutory interpretation,

       which inherently present pure questions of law, are reviewed de novo.”

       Paquette v. State, 101 N.E.3d 234, 237 (Ind. 2018). “The primary purpose of

       statutory interpretation ‘is to ascertain and give effect to’ the intent of the

       legislature.” 21st Amend., Inc. v. Ind. Alcohol and Tobacco Comm’n, 84 N.E.3d

       691, 696 (Ind. Ct. App. 2017) (quoting City of Greenwood v. Town of Bargersville,

       930 N.E.2d 58, 68 (Ind. Ct. App. 2010)), trans. denied. “The best evidence of

       legislative intent is the statutory language itself, ‘and we strive to give the words

       in a statute their plain and ordinary meaning.’” Id. (quoting City of Greenwood,

       930 N.E.2d at 68). “As we interpret the statute, we are mindful of both ‘what it

       does say and what it does not say.’” ESPN, Inc. v. Univ. of Notre Dame Police

       Dep’t, 62 N.E.3d 1192, 1195 (Ind. 2016) (quoting Day v. State, 57 N.E.3d 809,

       812 (Ind. 2016)). “[W]e do not presume that the Legislature intended language

       used in a statute to be applied illogically or to bring about an unjust or absurd

       result.” Id. at 1196 (quoting Anderson v. Gaudin, 42 N.E.3d 82, 85 (Ind. 2015)

       (internal quotation omitted)).




       Court of Appeals of Indiana | Opinion 19A-JP-1595 | April 6, 2020           Page 13 of 27
[25]   Again, the statute provides in relevant part that a person is a de facto custodian

       over a child who is under the age of three if the child resides with the person for

       a period of at least six months, excluding any period of time “after a child

       custody proceeding has been commenced[.]” I.C. § 31-9-2-35.5. Here, the

       undisputed evidence shows that the Child has lived with Arriaga since June

       2011, when the Child was six months old. The record shows that, while the

       State filed a Title IV-D petition for child support in February 2011, that petition

       was granted in April 2011, and the trial court granted custody of the Child to

       Mother. Thus, the “child custody proceeding” had concluded, and custody was

       vested in Mother, prior to June 2011, when Mother turned over care and

       custody of the Child to Arriaga. 9


[26]   Considering what the statute says and does not say, the word “commenced” is

       significant. We conclude that the time period relevant to establishing a de facto

       custodianship excludes any period of time after a child custody proceeding has

       been commenced and while it is pending. After a child custody proceeding has

       been commenced and has concluded, however, the calculation of the time

       relevant to a de facto custodian determination is not tolled. Indeed, to interpret

       the statute otherwise would lead to an absurd result. Here, because the Child

       began living with Arriaga in June 2011, after the Title IV-D proceeding had

       concluded and the trial court had granted custody of the Child to Mother, the




       9
        Whether a Title IV-D petition filed by the State constitutes a “child custody proceeding” for purposes of the
       de facto custodian statute is a question for another day.

       Court of Appeals of Indiana | Opinion 19A-JP-1595 | April 6, 2020                                Page 14 of 27
       entire time the Child has lived with Arriaga counts toward the statutory time

       requirement. The Child lived with Arriaga from the age of six months, and she

       was eight years old when Father filed his petition for modification of custody,

       which is more than enough time to prove Arriaga’s de facto custodian status.


[27]   Accordingly, we hold that the trial court erred by determining that Arriaga was

       not a de facto custodian. Indiana Code Section 31-14-13-2.5(c) provides: “If a

       court determines that a child is in the custody of a de facto custodian, the court

       shall make the de facto custodian a party to the proceeding.” 10 Given Arriaga’s

       status as a de facto custodian, the trial court abused its discretion by denying

       Arriaga’s motion to intervene. 11




       10
            We also note that Indiana Trial Rule 19(A) provides:
                A person who is subject to service of process shall be joined as a party in the action if:
                (1) in his absence complete relief cannot be accorded among those already parties; or
                (2) he claims an interest relating to the subject of the action and is so situated that the
                disposition of the action in his absence may:
                  (a) as a practical matter impair or impede his ability to protect that interest, or
                  (b) leave any of the persons already parties subject to a substantial risk of incurring double,
                  multiple, or otherwise inconsistent obligations by reason of his claimed interest.
                If he has not been so joined, the court shall order that he be made a party. If he should join as a
                plaintiff but refuses to do so, he may be made a defendant.
       See, e.g., Dunson v. Dunson, 769 N.E.2d 1120, 1126 (Ind. 2002) (holding that the teenager requesting child
       support from his parents was required to move, pursuant to Indiana Trial Rule 19, to join his aunt as a de
       facto custodian or dismiss for lack of an indispensable party).
       11
           When Arriaga filed her motion to intervene as a de facto custodian, the trial court should have held a
       hearing on the motion and made Arriaga a party to the proceeding at that time. We acknowledge that the
       trial court allowed Arriaga to participate in the hearing, present evidence, and cross-examine witnesses. The
       trial court, however, then failed to apply the relevant statute and cases relating to de facto custodians.

       Court of Appeals of Indiana | Opinion 19A-JP-1595 | April 6, 2020                                      Page 15 of 27
[28]   The trial court’s failure to consider Arriaga a de facto custodian was not

       harmless. See Ind. Trial Rule 61 (“The court at every stage of the proceeding

       must disregard any error or defect in the proceeding which does not affect the

       substantial rights of the parties.”); Ind. Appellate Rule 66(A) (“No error or

       defect in any ruling or order . . . is ground for granting relief or reversal on

       appeal where its probable impact, in light of all the evidence in the case, is

       sufficiently minor so as not to affect the substantial rights of the parties.”).

       Because the trial court erred in determining that Arriaga was not a de facto

       custodian, the trial court did not follow the applicable custody modification

       statutes and caselaw with respect to a de facto custodian, which tainted the

       proceedings. The trial court’s failure to properly recognize Arriaga as a de facto

       custodian cannot be viewed as harmless error.


[29]   Child custody modifications in paternity actions are governed by Indiana Code

       Section 31-14-13-6, which provides:


                The court may not modify a child custody order unless:


                (1) modification is in the best interests of the child; and


                (2) there is a substantial change in one (1) or more of the factors
                that the court may consider under section 2 and, if applicable,
                section 2.5 of this chapter.


[30]   Section 2 provides:


                The court shall determine custody in accordance with the best
                interests of the child. In determining the child’s best interests,

       Court of Appeals of Indiana | Opinion 19A-JP-1595 | April 6, 2020             Page 16 of 27
         there is not a presumption favoring either parent. The court shall
         consider all relevant factors, including the following:


         (1) The age and sex of the child.


         (2) The wishes of the child’s parents.


         (3) The wishes of the child, with more consideration given to the
         child’s wishes if the child is at least fourteen (14) years of age.


         (4) The interaction and interrelationship of the child with:


                  (A) the child’s parents;


                  (B) the child’s siblings; and


                  (C) any other person who may significantly affect the
                  child’s best interest.


         (5) The child’s adjustment to home, school, and community.


         (6) The mental and physical health of all individuals involved.


         (7) Evidence of a pattern of domestic or family violence by either
         parent.


         (8) Evidence that the child has been cared for by a de facto custodian,
         and if the evidence is sufficient, the court shall consider the factors
         described in section 2.5(b) of this chapter.


Ind. Code § 31-14-13-2 (emphasis added).


Court of Appeals of Indiana | Opinion 19A-JP-1595 | April 6, 2020                  Page 17 of 27
[31]   Because the Child was cared for by a de facto guardian, Indiana Code Section

       31-14-13-2.5 is applicable here. The trial court, however, failed to consider this

       statute, which provides:


                (a) This section applies only if the court finds by clear and
                convincing evidence that the child has been cared for by a de
                facto custodian.


                (b) In addition to the factors listed in section 2 of this chapter, the
                court shall consider the following factors in determining custody:


                         (1) The wishes of the child’s de facto custodian.


                         (2) The extent to which the child has been cared for,
                         nurtured, and supported by the de facto custodian.


                         (3) The intent of the child’s parent in placing the child with
                         the de facto custodian.


                         (4) The circumstances under which the child was allowed
                         to remain in the custody of the de facto custodian,
                         including whether the child was placed with the de facto
                         custodian to allow the parent seeking custody to:


                                  (A) seek employment;


                                  (B) work; or


                                  (C) attend school.




       Court of Appeals of Indiana | Opinion 19A-JP-1595 | April 6, 2020             Page 18 of 27
                (c) If a court determines that a child is in the custody of a de facto
                custodian, the court shall make the de facto custodian a party to
                the proceeding.


                (d) The court shall award custody of the child to the child’s de
                facto custodian if the court determines that it is in the best
                interests of the child.


                (e) If the court awards custody of the child to the child’s de facto
                custodian, the de facto custodian is considered to have legal
                custody of the child under Indiana law.


[32]   In making the custody modification determination here, the trial court should

       also have been guided by our Supreme Court’s opinions in In re Guardianship of

       B.H., 770 N.E.2d 283 (Ind. 2002), and K.I. ex rel. J.I. v. J.H., 903 N.E.2d 453

       (Ind. 2009). 12 In B.H., our Supreme Court recognized a strong presumption

       “that the child’s best interests are ordinarily served by placement in the custody

       of the natural parent.” B.H., 770 N.E.2d at 287. The Court then held that:


                In a proceeding to determine whether to place a child with a
                person other than the natural parent, evidence establishing the
                natural parent’s unfitness or acquiescence, or demonstrating that a strong
                emotional bond has formed between the child and the third person, would
                of course be important, but the trial court is not limited to these criteria.
                The issue is not merely the “fault” of the natural parent. Rather,
                it is whether the important and strong presumption that a child’s
                interests are best served by placement with the natural parent is
                clearly and convincingly overcome by evidence proving that the



       12
          We recognize that the trial court mentioned B.H. The trial court, however, failed to apply the relevant
       statutes and failed to properly apply B.H. and K.I.

       Court of Appeals of Indiana | Opinion 19A-JP-1595 | April 6, 2020                                Page 19 of 27
                child’s best interests are substantially and significantly served by
                placement with another person.


       Id. (emphasis added). In K.I., our Supreme Court expanded upon B.H. and

       addressed the burden of proof where a child was in the custody of a third party

       and a natural parent sought a change of custody, which is the situation here.


[33]   Because the trial court found that Arriaga was not a de facto custodian, the trial

       court failed to consider the factors of Indiana Code Section 31-14-13-2.5 and the

       relevant decisions of our Supreme Court on this issue. This failure prejudiced

       Arriaga’s substantial rights and was not harmless. We reverse and remand for

       the trial court to reconsider its custody modification determination and apply

       the relevant statutes and cases pertaining to de facto custodians.13


                                                    Conclusion
[34]   As a result of the trial court’s erroneous finding that Arriaga was not a de facto

       custodian, the trial court abused its discretion by denying Arriaga’s motion to

       intervene. This error also led to the trial court’s failure to apply the proper

       statutes and case authority regarding de facto custodians in the custody

       modification proceeding. We reverse the trial court’s denial of Arriaga’s

       motion to intervene and determination that Arriaga was not a de facto

       custodian. We remand for the trial court to reconsider its custody modification




       13
         We express no opinion on the outcome of this custody modification determination. We merely remand
       for the trial court to apply the correct statutes and cases.

       Court of Appeals of Indiana | Opinion 19A-JP-1595 | April 6, 2020                        Page 20 of 27
       determination and apply the relevant statutes and cases pertaining to de facto

       custodians.


[35]   Reversed and remanded.


       Najam, J., concurs.


       Vaidik, J., concurs in part, dissents in part.




       Court of Appeals of Indiana | Opinion 19A-JP-1595 | April 6, 2020      Page 21 of 27
                                                    IN THE
            COURT OF APPEALS OF INDIANA

       In the Paternity of M.S., L.S.
       and S.S.                                                     Court of Appeals Case No.
                                                                    19A-JP-1595
       Maria Arriaga,
       Appellant-Proposed Intervenor,

                v.

       State of Indiana as Next Friend;
       Gabriela Ivonne De Landa,
       (Mother), and Samuel Salazar,
       (Father),
       Appellees-Respondents.



       Vaidik, Judge, concurring in part, dissenting in part.


[36]   I respectfully concur in part and dissent in part. I agree with the majority that

       the trial court did not err by denying Arriaga’s motion to reopen the case. I

       would then address—and reject—Arriaga’s only other substantive argument:

       that Samuel Salazar is not Child’s biological father and that the trial court

       Court of Appeals of Indiana | Opinion 19A-JP-1595 | April 6, 2020                        Page 22 of 27
       therefore abused its discretion by placing Child in his custody. See Ind. Code §

       16-37-2-2.1(p) (an executed paternity affidavit conclusively establishes the man

       as the legal father of a child without any further proceedings by a court).

       Instead, the majority reverses the trial court’s custody decision, which is not

       clearly erroneous, based on arguments that are nowhere to be found in

       Arriaga’s brief, namely, that the trial court should have (1) found Arriaga to be

       a de facto custodian and, accordingly, (2) analyzed custody under Indiana Code

       section 31-14-13-2.5. That is where I must dissent.


[37]   At the outset, I have no qualms with the general propositions that a de facto

       custodian is entitled to intervene in a paternity lawsuit, that such an

       intervention sets up procedural hoops that must be jumped through, and that in

       some cases failing to abide by those rules may result in reversible error. I

       dissent because Arriaga simply does not make this de facto-custodian argument

       on appeal, and given the facts, she wisely concedes that denying her

       intervention did not have any bearing on the court’s ruling. Nonetheless, the

       majority reverses on this issue.


[38]   First, this issue is not raised on appeal. 14 Arriaga raises the intervention issue

       for one limited reason—“to preserve [her] standing to pursue her appeal and to




       14
            The majority glosses over the fact that this issue was not raised, in footnote 8 of the opinion:

                  We acknowledge that Arriaga’s appellate argument on this issue lacks clarity. By denying Arriaga’s
                  motion to intervene, the trial court left Arriaga in an unfortunate situation; Arriaga is not a party
                  and cannot challenge the trial court’s custody decision if she is not a party to the action. . . . Arriaga
                  does specifically argue that the trial court erred by denying her motion to intervene, and we agree,


       Court of Appeals of Indiana | Opinion 19A-JP-1595 | April 6, 2020                                       Page 23 of 27
avoid any argument that she waived her right to appeal.” Appellant’s Br. p. 15.

Nowhere in her brief does Arriaga argue that the trial court did not consider her

rights as a de facto custodian under Indiana Code section 31-14-13-2.5, let alone

argue that this failure prejudiced her substantial rights. Indeed, Arriaga never

once cites Section 31-14-13-2.5 in her brief, and she does not even argue that

she was entitled to de facto-custodian status. Rather, Arriaga uses the term “de

facto custodian” only once in the argument section of her brief, in the following

sentence about Indiana Trial Rule 24: “Assuming that the probate court’s ruling

that [Arriaga] does not meet the definition of a ‘de facto custodian,’ thereby

giving her a right to intervene pursuant to Trial Rule 24(A)(1) is correct,

[Arriaga] nevertheless qualifies for intervention [as] of right under Trial Rule

24(A)(2).” Appellant’s Br. p. 25. Failing to raise this issue on appeal is fatal to

Arriaga’s case. She bears the burden of convincing us that the trial court’s

judgment is clearly erroneous. In K.I., our Supreme Court explained the

burden of proof:


         The parent comes to the table with a strong presumption that a
         child’s interests are best served by placement with the natural



         although on a different basis than she argues. Arriaga also specifically argued to the trial court that
         she was the Child’s de facto custodian, and the trial court specifically addressed whether Arriaga
         was a de facto custodian. Under these circumstances, we will address the issue.
It is true that Arriaga argued to the trial court that she should be recognized as Child’s de facto custodian, but
she did not argue to the trial court that it should consider Indiana Code section 31-14-13-2.5 when making its
custody decision. On appeal, Arriaga argues that the trial court erred in denying her motion to intervene
only so this court would not dismiss her appeal for lack of standing. I would decide this case against Arriaga
assuming she has standing to complain.


.

Court of Appeals of Indiana | Opinion 19A-JP-1595 | April 6, 2020                                   Page 24 of 27
                parent. . . . In essence, although in a very technical sense, a
                natural parent seeking to modify custody has the burden of
                establishing the statutory requirements for modification by
                showing modification is in the child’s best interest, and that there
                has been a substantial change in one or more of the enumerated
                factors, as a practical matter this is no burden at all. More
                precisely, the burden is minimal. Once this minimal burden is
                met, 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 this burden, then the custody of the child remains in the
                third party. Otherwise, custody must be modified in favor of the
                child’s natural parent.


       903 N.E.2d at 460-61 (internal quotations and citations omitted). As was the

       case in K.I., Arriaga did not carry her burden. Furthermore, given our limited

       role as an appellate court, we should not bear the burden for her.


[39]   Second, Arriaga concedes the issue. As she says in her brief, “From a practical

       perspective, the probate court’s denial of the Motion to Intervene appears to

       have no bearing on its ruling on the Motion to Modify Custody. The issue is

       raised solely to avoid any argument that the appeal is waived by failing to

       challenge the ruling on intervention.” Id. Arriaga wisely concedes the issue

       because the trial court did consider the factors of Indiana Code section 31-14-

       13-2.5. And contrary to the majority’s opinion, the trial court did consider the

       seminal case of In re B.H., 770 N.E.2d 283 (Ind. 2002).


[40]   Finally, Arriaga was not prejudiced—let alone substantially prejudiced—by the

       procedure used by the trial court. Arriaga was present during all court

       proceedings, was represented by counsel, and called and cross-examined
       Court of Appeals of Indiana | Opinion 19A-JP-1595 | April 6, 2020          Page 25 of 27
       witnesses. In the trial court’s detailed six-page order, it is clear that the trial

       court considered Arriaga as a potential custodian. The trial court found that

       Arriaga “appears to have provided excellent care for [Child], and her

       enrollment of [Child] in a private school is a significant point in her favor.”

       Appellant’s App. Vol. II p. 12. But ultimately, citing In re B.H., the trial court

       found that “such an education falls more along the lines of the ‘better things in

       life for a child,’ against which the Indiana Supreme Court has cautioned in

       evaluating third-party custody.” Id. Furthermore, the trial court determined

       that the three children’s relationship with one another “further weighs against

       [Arriaga]” and that Arriaga was not credible when she testified that she would

       take all three children into her custody. Id.


[41]   This is a tough case. Mother is unfit as a parent. Father has a sordid past but

       has straightened out his life and married a woman who the trial court found

       was a significant advantage to the children. Arriaga wanted custody of the one

       child she believed to be her natural grandchild, only if Mother was not granted

       custody. Arriaga told Child throughout her life that Father was not her father,

       denied visitation to him, and exaggerated his criminal history. The trial court

       weighed the credibility of the witnesses and following the recommendation of

       the GAL, a family-law attorney, concluded that it is in the best interests of these

       children to be together with Father.


[42]   I understand that the majority may not agree with the decision of the trial court.

       But we are a court miles and months away from the courtroom and testimony



       Court of Appeals of Indiana | Opinion 19A-JP-1595 | April 6, 2020            Page 26 of 27
       in this case. We should not disturb a judgment that is not clearly erroneous on

       arguments not raised by the parties.


[43]   Our decisions from above have real-world consequences. Remand to the trial

       court will only accomplish insecurity and financial stress for this fledgling

       family. 15 I would affirm the trial court in all respects.




       15
         Father likely was not able to afford an attorney on appeal and since he and his wife have been supporting
       four children on a limited income for nearly a year, it is doubtful that he will be able to afford an attorney
       upon remand.



       Court of Appeals of Indiana | Opinion 19A-JP-1595 | April 6, 2020                                 Page 27 of 27
