The opinion
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Sean C. Lemieux Kendra Gowdy Gjerdingen
Fishers, Indiana 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, contin-
ued 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) (cit-
ing 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)). Dis-
missals 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 chil-
dren’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 enti-
tlement, if any, to the relief sought. We do not deem ourselves to have decided the vari-
ous 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 re-
mains 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 artifi-
cial 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 dis-
regards Indiana’s adoption laws, particularly the statutory requirement for the mother’s
consent to an adoption; (2) reinstating this declaratory judgment action raises grave ques-
tions 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 pa-
rental 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 ju-
risprudence.
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 de-
clared 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 cus-
tody 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 regard-
ing 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 cir-
cumstances, the father. Ind. Code § 31-19-9-1(a)(2). 2 This requirement of maternal con-
sent is recognized under our state adoption laws regardless of the nature of any relation-
ship that may have developed between the child and the person seeking to adopt such
child. The fact that the child has only one living or known parent does not alter the ma-
ternal consent requirement for an adoption.
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.” Ind. Code § 31-19-15-2(a) (emphasis
added). In all other cases, an adoption operates to divest the child’s parents of all rights
with respect to the child. Ind. Code § 31-19-15-1. In addition, same-sex marriages are
prohibited in Indiana. Ind. Code § 31-11-1-1. Even if King and S.B. had not separated
but were continuing to live together as same-sex domestic partners, it is my view that
King could not be lawfully adopt A.B. because stepparent adoptions require the adoptive
parent to be married to the child’s parent, and same-sex marriages are not permitted. 3 If
2
A parent’s consent to adoption is not required under various circumstances such as
abandonment or failure to provide for care or support, as prescribed by statute. See Ind. Code §
31-19-9-8. And consent is not required of a child’s parent whose parental rights have been termi-
nated to protect the child or for other reasons. See Ind. Code §§ 31-35-6-4(a)(2), 31-35-2-4, 31-
35-1-1, 31-35-3-4. None of these exceptions are alleged in this case.
3
This reasoning was not followed, however, and contrary results were reached in two
Court of Appeals opinions from which review by this Court was not sought. In In re Adoption of
M.M.G.C., 785 N.E.2d 267 (Ind. Ct. App. 2003), trans. not sought, the Court of Appeals author-
ized a woman to adopt children previously adopted by her same-sex domestic partner, but with
the partner’s consent. In the other case, Matter of Adoption of K.S.P., 804 N.E.2d 1253 (Ind. Ct.
7
a stepparent adoption is contrary to statute for same-sex domestic partners living to-
gether, it is likewise illegal after the termination of the couple’s relationship.
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 tem-
porary guardianship to permanent status for the stepfather of two teenage children follow-
ing 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 pre-
sumption by evidence proving that the child’s best interests are substantially and signifi-
cantly 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 chil-
dren’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.
App. 2004), trans. not sought, a woman was permitted to seek adoption of two children born to
the woman’s same-sex domestic partner. For reasons expressed herein, I believe that both
M.M.G.C. and K.S.P. were incorrect. One additional Court of Appeals decision has upheld the
validity of a same-sex adoption. Mariga v. Flint, 822 N.E.2d 620 (Ind. Ct. App. 2005) trans.
pending. Because Mariga is based on K.S.P., M.M.G.C., and the Court of Appeals decision in the
present case, I believe that the basis for the court’s decision was erroneous. But I agree with its
result that operates to deny the request of a same-sex adoptive parent seeking relief from a sup-
port obligation she voluntarily undertook when she sought and obtained a same-sex adoption with
the consent of the child’s mother. A person who voluntarily agrees to a support obligation and
thus induces another party to rely and act thereon is estopped from denying this obligation. Levin
v. Levin, 645 N.E.2d 601, 604-05 (Ind. 1995).
8
Troublesome Consequences Raised
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 notwithstand-
ing the refusal of consent by the child’s custodial parent.
Is this holding limited to only former same-sex domestic partners? Such limita-
tion would raise grave questions under the prohibition of special privileges provision in
Article 1, Section 23 of the Indiana Constitution. Current and former co-habiting hetero-
sexual partners presently have no statutory right to adopt without the consent of the
child’s mother, but today’s decision places these well-established principles in jeopardy.
In addition, the majority’s opinion may also encourage future claims that any per-
son who may have resided and developed bonds of affinity with a minor child be permit-
ted 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 chil-
dren.
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
9
decisions in matters not governed by statutory law. But resort to common law jurispru-
dence is inappropriate when employed to supersede or alter existing statutes regarding the
establishment of parental status over the child of another, which has been governed by
adoption statutes in Indiana for at least 150 years. See, e.g., Indiana Acts 1855, c. 56, § 1,
p.122; Hunter v. Bradshaw, 209 Ind. 71, 72, 198 N.E. 73, 74 (1935). Adoption law is
strictly statutory, the right of adoption being unknown at common law. In Re Perry, 83
Ind.App. 456, 464-65, 148 N.E. 163, 166 (1925); see also Robbins v. Baxter, 799 N.E.2d
1057, 1060 (Ind. 2003).
As to non-statutory matters already governed by common law, modification is ap-
propriate 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 can-
not 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.
Id. at 7.
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 pref-
erences, 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
10
(1969), this Court modified the common law to hold “that a wife in this state is entitled to
recover for loss of consortium against a wrong-doer who has injured her husband.” Id. at
294, 252 N.E.2d at 806. Recognizing that “[t]he common law must keep pace with
changes in our society, and in our opinion the change in the legal and social status of
women in our society forces us to recognize a change in the doctrine with which we are
concerned in this opinion,” the Court grounded its decision to alter the common law on
the fact that “[t]he change taking place in the authorities appears to us to be overwhelm-
ing.” Id. at 293, 252 N.E.2d at 804, 806.
But there is no such “overwhelming” change in current society regarding the ac-
ceptance, approval, and substantial prevalence of same-sex parenting arrangements. The
common law should not, in my opinion, be used to provide non-statutory privileges aris-
ing out of same-sex domestic relationships when, as here, not only is Indiana public opin-
ion deeply fractured, but also a significant majority of Indiana citizens favor a public pol-
icy 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.” Ind. Code § 31-11-1-1.
Furthermore, our General Assembly has just adopted, by an overwhelming vote, 4 a reso-
lution calling for the addition of a new provision to the Indiana Constitution that would
provide: “(a) Marriage in Indiana consists only of the union of one man and one woman.
(b) This Constitution or any other Indiana law may not be construed to require that mari-
tal status or the legal incidents of marriage be conferred upon unmarried couples or
groups.”
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 rec-
ognition and promotion of same-sex families and parenting structures remains a contro-
versial and strongly disapproved social policy in Indiana. It does not constitute estab-
4
This proposed constitutional amendment, Senate Joint Resolution 7, passed the Indiana
Senate on February 21, 2005, by a vote of 42 to 8 (84% approval), and on March 22, 2005, it
passed the Indiana House of Representatives by a vote of 76 to 23 (76% approval).
11
lished social change. As the judicial branch of government, I believe that Indiana courts
should therefore refrain from implying legitimacy or judicial approval for same-sex do-
mestic relationships as family entities suitable for parenting children.
Conclusion
As a co-equal and independent branch of government, the judiciary must be em-
powered to truly interpret and apply our constitutions and laws without concern for po-
litical 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 Gen-
eral 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 ob-
tain 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. Mel-
roe 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.”).
12
Because I believe that the plaintiff’s action is precluded by existing statutes gov-
erning adoption, and that the judiciary serves best when it refrains from intruding into the
legislature’s prerogative to determine public policy on social issues, I respectfully dis-
sent.
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