Preview:

ATTORNEY FOR APPELLANT Sean C. Lemieux Fishers, Indiana

ATTORNEYS FOR APPELLEE Kendra Gowdy Gjerdingen Andrew C. Mallor Bloomington, Indiana ATTORNEYS FOR AMICI CURIAE INDIANA CIVIL LIBERTIES UNION, INC. Jacquelyn Bowie Suess Indianapolis, Indiana LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. Wayne C. Kreuscher Indianapolis, Indiana Patricia Logue Heather C. Sawyer Chicago, Illinois STATE OF INDIANA Steve Carter Attorney General of Indiana Thomas M. Fisher Solicitor General of Indiana Rebecca Walker Deputy Attorney General Indianapolis, Indiana

________________________________________________________________________

In the

Indiana Supreme Court
_________________________________ No. 53S01-0511-JV-606 IN RE PARENTAGE OF A.B., DAWN KING, ON HER OWN BEHALF AND AS NEXT FRIEND OF A.B., A MINOR, Appellant (Petitioner below), v. S.B., Appellee (Respondent below).

_________________________________ Appeal from the Monroe Circuit Court, No. 53C03-0310-JP-00613 The Honorable Kenneth G. Todd, Judge _________________________________ On Petition to Transfer from the Indiana Court of Appeals, No. 53A01-0407-JV-284 _________________________________ November 23, 2005 Sullivan, Justice.

Dawn King seeks a judicial declaration that she is entitled to parenting time rights, child support obligations, and certain other parental rights and responsibilities with respect to a now six-year-old child, A.B. The trial court dismissed the lawsuit under the authority of Indiana Trial Rule 12(B)(6) for "failure to state a claim upon which relief may be granted." The Court of Appeals reversed, holding that by virtue of her agreement with A.B.'s mother, King is a "legal parent." In re Parentage of A.B., 818 N.E.2d 126, 132 (Ind. Ct. App. 2004). We grant transfer and thereby vacate the opinion of the Court of Appeals. Ind. Appellate Rule 58(A).

When reviewing a motion to dismiss for failure to state a claim, this Court accepts as true the facts alleged in the complaint. King's complaint indicates that, after living together for several years, Stephanie Benham and King jointly decided to bear and raise a child together. Benham was artificially inseminated with semen donated by King's brother in August, 1998, and A.B. was born on May 15, 1999. All expenses associated with the pregnancy and birth that were not covered by insurance were paid from Benham and King's joint bank account; Benham and King assumed equal roles in A.B.'s care and support until the relationship between Benham and King ended in January, 2002. King paid monthly child support thereafter and continued to have regular and liberal visitation with A.B. until late July, 2003. At that point, Benham unilaterally terminated visitation and began rejecting King's support payments.

On October 31, 2003, King filed this lawsuit, seeking to be recognized as A.B.'s

2

legal parent with the rights and obligations of a biological parent. Alternatively, King contended that, even if King is not A.B.'s legal parent, King nonetheless acted in loco parentis and in a custodial and parental capacity entitling King to, at a minimum, continued visitation with A.B. Benham moved to dismiss the complaint for failure to state a claim upon which relief may be granted. Ind. Trial Rule 12(B)(6). The trial court granted that motion on March 8, 2004. The Court of Appeals reversed. In re Parentage of A.B., 818 N.E.2d at 133. We grant transfer, thereby vacating the opinion of the Court of Appeals. Ind. Appellate Rule 58(A).

In reviewing a 12(B)(6) motion to dismiss, we look at the complaint in the light most favorable to the plaintiff, with every inference drawn in its favor, to determine if there is any set of allegations under which the plaintiff could be granted relief. State Civil Rights Comm'n v. County Line Park, Inc., 738 N.E.2d 1044, 1049 (Ind. 2000) (citing Ind. Civil Rights Comm'n v. Indianapolis Newspapers, Inc., 716 N.E.2d 943, 945 (Ind. 1999); Ratliff v. Cohn, 693 N.E.2d 530, 534 (Ind. 1998); Cram v. Howell, 680 N.E.2d 1096, 1096 (Ind. 1997)). A dismissal under Trial Rule 12(B)(6) is improper unless it appears to a certainty that the plaintiff would not be entitled to relief under any set of facts. County Line Park, 738 N.E.2d at 1049 (citing Thomson Consumer Elecs., Inc. v. Wabash Valley Refuse Removal, Inc., 682 N.E.2d 792, 793 (Ind. 1997)). Dismissals under Trial Rule 12(B)(6) are "rarely appropriate." County Line Park, 738 N.E.2d at 1049 (citing Obremski v. Henderson, 497 N.E.2d 909, 910 (Ind. 1986)).

That is our conclusion here. Our 2002 decision, In re Guardianship of B.H., in which this Court affirmed a trial court's grant of permanent guardianship to two children's stepfather after the death of their mother, rejected the children's biological father's motion to dismiss the stepfather's request. 770 N.E.2d 283 (Ind. 2002). Several things are clear from B.H. First, Indiana courts have authority to determine "whether to place a child with a person other than the natural parent," id. at 287, which we hold necessarily includes the authority to determine whether such a person has the rights and obligations of a parent. Second, Indiana law "provide[s] a measure of protection for the rights of the natural parent, but, more importantly, it embodies innumerable social, psychological, cul-

3

tural, and biological considerations that significantly benefit the child and serve the child's best interests." Id. As such, Indiana trial courts are accorded deference in their determinations as to children's best interests in these circumstances. Id. At least some of the relief sought in this case falls within that which B.H. grants persons other than natural parents to seek and Indiana trial courts, where appropriate, discretion to award.

Given the procedural posture of this case and the guidance provided by B.H., we find it unnecessary to comment further on the facts of this particular case or King's entitlement, if any, to the relief sought. We do not deem ourselves to have decided the various legal issues raised by the dissent.

As previously mentioned, we grant transfer, vacating the opinion of the Court of Appeals. Ind. Appellate Rule 58(A). We also reverse the trial court's dismissal of King's complaint and remand this case to the trial court for further proceedings.

Boehm and Rucker, JJ., concur. Shepard, C.J., concurs with separate opinion. Dickson, J., dissents with separate opinion.

4

Shepard, Chief Justice, concurring. I write separately only to highlight what the majority has already said about the limited nature of today's ruling, which I see as far more modest than my friend Justice Dickson suggests. Whether any element of King's claims will be legally sustainable remains an open question for resolution after a hearing on the merits.

5

Dickson, Justice, dissenting.

The majority opinion today permits a declaratory judgment action to be pursued by a woman seeking to establish her "co-parentage" of a minor child conceived by artificial insemination and born to another woman during the two women's relationship as domestic partners. I dissent, believing that the plaintiff's action fails to state any claim upon which relief can be granted. Indiana Trial Rule 12(B)(6). I reach this conclusion for several reasons, chiefly the following: (1) permitting this proceeding to continue disregards Indiana's adoption laws, particularly the statutory requirement for the mother's consent to an adoption; (2) reinstating this declaratory judgment action raises grave questions regarding whether such device may be used by various other people, who are not natural parents of a child, to bypass our adoption laws and to intrude upon the lawful parental rights of others; and (3) advancing special policy interests that have not become well-established changes in society exceeds an appropriate exercise of common law jurisprudence.

Existing Adoption Law Controls

In the present case, A.B. was born out of wedlock. During the pendency of King's adoption petition the parties separated and the natural mother, S.B., withdrew her consent for King's adoption of A.B. King thereafter dismissed her adoption petition. But she now seeks to accomplish the same result (obtaining a judicial declaration that she is A.B.'s parent, and thus entitled to interfere with the natural mother's parental rights) through a declaratory judgment action. 1 In dismissing King's complaint "for Declaratory Judgment to Establish Parentage," the trial court noted that adoption was the only method by which King could seek to co-parent A.B. Appellant's App'x. at 7. In response to
1

King's complaint for declaratory judgment seeks the following relief: (1) "to be declared A.B.'s legal second parent under the law," Appellant's App'x. at 14; (2) to have her rights "with respect to custody, visitation, support, and other parent-child matters . . . determined in the same manner as those of a non-biological parent and child in the context of heterosexual couple who conceive a child through artificial insemination," id. at 15; (3) to be "awarded joint legal custody and visitation with A.B. and that she provide financial support for A.B." id. at 16, 17; and (4) "to be awarded reasonable and liberal visitation with A.B." id. at 17.

6

King's appellate brief, S.B. points to Indiana adoption law and asserts that King cannot be A.B.'s legal parent. Appellee's Brief at 5-6. But the majority opinion is silent regarding its conflict with Indiana adoption law and the statutory prerequisite for the mother's consent.

The Indiana legislature has determined the persons eligible and the procedures to be followed when a person not a child's parent wishes to become the child's legal parent. With respect to a child born out of wedlock, an adoption petition may be granted only if a written consent to the adoption has been executed by the mother and, under certain circumstances, the father. Ind. Code

Download Dawn King v. S.B..pdf

Indiana Law