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, 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, cul3 
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 § 31-19-9-1(a)(2).2

 This requirement of maternal consent is recognized under our state adoption laws regardless of the nature of any relationship 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 maternal 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 terminated 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 authorized 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 together, 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 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 “coparent.” 

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 support 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 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 

Article 1, Section 23 of the Indiana Constitution. Current and former co-habiting heterosexual 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 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 

9 
decisions in matters not governed by statutory law. But resort to common law jurisprudence 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 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. 

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 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 

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 overwhelming.” Id. at 293, 252 N.E.2d at 804, 806.

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.” Ind. Code § 31-11-1-1. 

Furthermore, our General Assembly has just adopted, by an overwhelming vote,4

 a resolution 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 marital 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 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-

 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 domestic relationships as family entities suitable for parenting children. 

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.”). 

12 
 Because I believe that the plaintiff’s action is precluded by existing statutes governing 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 dissent. 

13