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).
No. 53S01-0511-JV-606
Indiana Supreme Court
November 23, 2005
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
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
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
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
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
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-
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.
Boehm and Rucker, JJ., concur. Shepard, C.J., concurs with separate opinion. Dickson, J., dissents with separate opinion.
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.
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.
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
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.
In addition to the statutory requirement for a mother‘s consent, Indiana adoption law expressly addresses stepparent adoptions, permitting them if “the adoptive parent of a child is married to a biological parent of the child.”
I do not agree with the majority‘s application of our holding in In re Guardianship of B.H., 770 N.E.2d 283 (Ind. 2002), to the facts of this case. In B.H., a guardianship proceeding, this Court did not grant status as a “co-parent,” but merely converted a temporary guardianship to permanent status for the stepfather of two teenage children following the death of his wife, the children‘s natural mother, notwithstanding the opposition of the child‘s non-custodial but natural father. The mother had been the custodial parent of the children for seven years and, along with the stepfather, had provided a home for the children for four years prior to her death. Acknowledging the strong presumption that a child‘s interests are best served by placement with a natural parent, we required that a guardian seeking custody of the child must clearly and convincingly overcome this presumption by evidence proving that the child‘s best interests are substantially and significantly served by placement with the guardian. Our decision in B.H. did not diminish the parental rights possessed by the natural father before the death of his ex-wife, the children‘s mother and custodial parent. It did not create a new non-statutory status of “co-parent.”
Unlike B.H., permitting King access to the courts to obtain parental status or privileges violates both the statutory requirement for a mother‘s consent to an adoption of a child born out of wedlock and the spirit and intent of those provisions permitting a stepparent adoption only by a person of the opposite sex who is married to the biological parent.
I am concerned that the majority opinion today may open a veritable Pandora‘s Box of troublesome questions regarding who may seek its new remedy of adoption, or of interference with a custodial parent‘s rights, by declaratory judgment, and notwithstanding the refusal of consent by the child‘s custodial parent.
Is this holding limited to only former same-sex domestic partners? Such limitation would raise grave questions under the prohibition of special privileges provision in
In addition, the majority‘s opinion may also encourage future claims that any person who may have resided and developed bonds of affinity with a minor child be permitted to compel an adoption or interference with natural parental rights by declaratory judgment despite the mother‘s refusal of consent. Will this remedy thus be available, for example, to grandparents, siblings, aunts, uncles, in-laws, foster parents, and former or current spouses or domestic companions, etc.? If so, today‘s opinion may create an enormous opportunity for future litigation disruptive to the stability and security of children.
Misapplication of Common Law
I also believe that with its opinion today, the majority has exercised this Court‘s common law jurisdiction in a manner inconsistent with the proper function and role of the common law. The common law may not supersede statutory law, and the common law properly serves only to reflect established social change.
The common law is a valuable and important body of law that consists of court
As to non-statutory matters already governed by common law, modification is appropriate to reflect clearly established, widespread social changes, not to advance or favor one movement over another. As Chief Justice Shepard wrote for the Court in Bartrom v. Adjustment Bureau, Inc., 618 N.E.2d 1 (Ind. 1993):
While the Court of Appeals is correct in observing that Indiana courts should not hesitate to modify common law rules when their existence cannot be justified in light of the realities of modern life, such determinations should be consonant with the evolving body of public policy adopted by the General Assembly.
In 1972, this Court in Brooks v. Robinson, 259 Ind. 16, 284 N.E.2d 794 (1972), abolished the doctrine of interspousal immunity, noting the absence of legislation. Id. at 22, 284 N.E.2d at 797. We pointed out that “the common law doctrine of interspousal immunity . . . is, and always has been, subject to amendment, modification, or abrogation by this Court.” Id. at 24, 284 N.E.2d at 798. In abolishing the doctrine, this Court was not attempting to transform social mores or to impose certain judges’ social policy preferences, but we were rather seeking only to make the law consistent with the prevailing norms of society. “The strength and genius of the common law lies in its ability to adapt to the changing needs of the society it governs.” Id. at 22-23, 284 N.E.2d at 797.
In another significant opinion, Troue v. Marker, 253 Ind. 284, 252 N.E.2d 800
But there is no such “overwhelming” change in current society regarding the acceptance, approval, and substantial prevalence of same-sex parenting arrangements. The common law should not, in my opinion, be used to provide non-statutory privileges arising out of same-sex domestic relationships when, as here, not only is Indiana public opinion deeply fractured, but also a significant majority of Indiana citizens favor a public policy that does not promote same-sex families. Indiana law declares that “[o]nly a female may marry a male” and that “[o]nly a male may marry a female.”
The common law does not exist to enable judges to advance or impose social policies that are not generally accepted. It functions, rather, to enable the courts, in the absence of legislation, to keep pace with generally established societal changes. The recognition and promotion of same-sex families and parenting structures remains a controversial and strongly disapproved social policy in Indiana. It does not constitute estab-
Conclusion
As a co-equal and independent branch of government, the judiciary must be empowered to truly interpret and apply our constitutions and laws without concern for political or other reprisal. See Fraley v. Minger, 829 N.E.2d 476, 492 (Ind. 2005). Public trust and confidence in an independent judiciary is enhanced when judges exercise their authority with restraint and respect for the role and function of the legislative branch to decide questions of public policy. Id. The judiciary must respect the fact that the General Assembly is likewise a co-equal and independent branch. Id. Having enacted a body of law that prescribes the eligibility and procedure applicable for persons seeking to obtain parental rights with respect to another person‘s child, the legislature‘s determination should be respected and followed by the judicial branch.
Courts “must be careful to avoid substituting their judgment for those of the more politically responsive branches.” Sanchez v. State, 749 N.E.2d 509, 516 (Ind. 2001). “In our separation of powers democracy, the constitution empowers the legislative branch to make law.” Baldwin v. Reagan, 715 N.E.2d 332, 337-38 (Ind. 1999). “The legislature has wide latitude in determining public policy, and we do not substitute our belief as to the wisdom of a particular statute for those of the legislature.” State v. Rendleman, 603 N.E.2d 1333, 1334 (Ind. 1992). As explained by former United States Chief Justice John Marshall: “Judicial power is never exercised for the purpose of giving effect to the will of the Judge; always for the purpose of giving effect to the will of the Legislature; or in other words, to the will of the law.” Osborne v. Bank of the United States, 9 Wheat. 738, 866 (1824). Of course, the General Assembly may always enact legislation that overrides the majority opinion‘s exercise of common law authority in this case. McIntosh v. Melroe Co., 729 N.E.2d 972, 977 (Ind. 2000) (“This Court has long recognized the ability of the General Assembly to modify or abrogate the common law.“).