Court of Appeals of Indiana | Opinion 22A-AD-2227 | March 29, 2023 Page 1 of 17

ATTORNEYS FOR APPELLANT

Amy O. Carson 

Christopher P. Jeter

Jacob W. Zigenfus

Massillamany Jeter & Carson LLP

Fishers, Indiana

Gillian Keiffner

Keiffner Law

Indianapolis, Indiana

ATTORNEY FOR APPELLEE

Timothy R. Stoesz

Stoesz & Stoesz

Noblesville, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

In Re: the Adoption of:

W.K., IV, and I.K.;

W.K.,

Appellant,

v.

T.M., 

Appellee.

March 29, 2023

Court of Appeals Case No.

22A-AD-2227

Appeal from the Hamilton 

Superior Court

The Honorable William J. Hughes, 

Judge

Trial Court Cause Nos.

29D03-1904-AD-524

29D03-1904-AD-525

Opinion by Judge Bailey

Judges Brown and Weissmann concur.

Bailey, Judge.
Court of Appeals of Indiana | Opinion 22A-AD-2227 | March 29, 2023 Page 2 of 17

Case Summary

[1] W.K. (“Father”) appeals the trial court’s order granting custody of W.K., IV 

(“W.K.”) and I.K. (collectively, “Children”) to T.M. (“Stepfather”). We 

affirm.

Issues

[2] Father raises three issues, which we consolidate and restate as the following 

two issues:

I. Whether Father suffered harm from the trial court’s denial 

of his motion to dismiss the petitions for adoption 

immediately following remand from this Court. 

II. Whether the trial court’s findings and judgment are clearly 

erroneous.

Facts and Procedural History

[3] Father and C.K. (“Mother”) were married in March of 2008. W.K. was born to 

them on December 9, 2008, and I.K. was born to them on April 14, 2010. 

Mother and Father were in the military and lived with Children in Japan. In 

May of 2013, Father and Mother separated, and Father moved to Texas. 

Mother and Children remained in Japan until July of 2013, at which time the 

three of them moved to California and lived with Children’s maternal 

grandparents.
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[4] Mother filed for dissolution of marriage in California, and the dissolution was 

finalized in March of 2014. The dissolution order provided that the parents had 

joint legal custody of Children, Mother had physical custody of Children, and 

Father had parenting time with Children. Beginning in the summer of 2014, 

Children spent summers with Father in Texas. No child support order was 

issued at the time of the dissolution, but Father made some informal child 

support payments to Mother. Father was not “formally ordered to pay child 

support” until late in 2016. In re Adoption of W.K., 163 N.E.3d 370, 372 (Ind. 

Ct. App. 2021), trans. denied.

[5] Mother began dating Stepfather, a police officer in Indiana. In the fall of 2014, 

Mother and Children moved to Indiana to live with Stepfather. Mother and 

Stepfather married in December of 2016, and, beginning in approximately 

September of 2017, maternal grandparents moved in with Mother, Stepfather, 

and Children in Indiana. In February of 2019, A.M. was born to Mother and 

Stepfather. When Mother gave birth to A.M., it was discovered that Mother

had stage four stomach cancer. Mother died on March 28, 2019. Maternal 

grandparents continued to live with Stepfather and Children.

[6] On April 1, 2019, Father appeared at Children’s home in Indiana to “pick up 

the children” to take them to Texas. Appealed Order at 4. That same day, 

maternal grandmother filed for emergency guardianship of Children, and 

Stepfather filed adoption petitions and an “Emergency Petition for Immediate 

Temporary Custody” of Children. Appellant’s App. v. II at 60. On April 3, 

Father filed a petition to domesticate the California dissolution decree and a 
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motion to dismiss the adoption petitions. On April 10, the trial court held 

emergency hearings on the pending petitions. The court granted Father’s 

petition to domesticate the California decree of dissolution. The court ordered 

temporary custody of Children to Stepfather for the remainder of the school 

year and then temporary custody to Father “until further Order of the Court.” 

Id. at 67. Grandmother’s guardianship petition was denied and dismissed. The 

trial court also appointed a Guardian Ad Litem (“GAL”).

[7] On July 26, 2019, Stepfather filed a “Petition for Emergency Hearing for 

Return of Child[ren] to Indiana” in which he alleged that Children’s school in 

Indiana started on August 6 but Father had refused to return Children to 

Indiana. Id. at 104. The court set the matter for an emergency hearing on 

August 2 and granted Father’s request to appear for the hearing telephonically. 

Following the August 2 hearing, the court ordered Father to return Children to 

Indiana on or before August 5, with Children to remain in Stepfather’s 

“temporary custody until further order of the Court” and with Father to have 

parenting time with Children during fall school break. W.K., 163 N.E.3d at 

373. 

[8] Father did not return Children on August 5 as ordered; rather, he initiated an 

action in Texas to enforce the dissolution decree and attempted to enroll 

Children in school in Texas. Stepfather filed a report with the police in 

Indiana, and Father was charged with two counts of Level 6 felony interference 

with child custody. In September, Father was arrested in Texas, and Stepfather 

drove to Texas and brought Children back to Indiana. Stepfather subsequently 
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requested that the charges against Father be dropped, and the charges were

dismissed with prejudice.

[9] On September 1, the GAL interviewed Children. Children reported to the 

GAL that Father “spanked” them repeatedly with his hand or a belt and that 

they were scared of Father. December 6, 2019, GAL report at 13.1 W.K. 

reported that Father hits the belt “on tables to scare them” sometimes. Id. at 

15. Children expressed their belief that Father was “angry all the time,” and 

W.K. reported remembering an incident when Father “thr[ew] a computer at 

Mother in the face and ma[de] her nose bleed.” Id. at 14. Children expressed 

fear “of what Father [would] do” if he discovered what Children told the GAL. 

Id. at 15. Children stated that they did not wish to live with Father. Children 

expressed happiness with Stepfather and a desire to live with Stepfather and 

visit Father during summers.

[10] On September 27, 2019, Father filed a “Renewed Motion to Dismiss” the 

adoption petitions. Appellant’s App. v. II at 7. On December 17, 2019, and 

April 28, 2020, the trial court held a hearing on Stepfather’s petition to adopt 

Children. Stepfather argued that Father’s consent to adoption was not 

necessary, and the trial court agreed. Father appealed, and a panel of this 

Court reversed the trial court order. This Court held that Father’s consent was 

1

 The December 2019 GAL report was not included in the record on this appeal but was accessed by this 

Court on Odyssey, the state court case management system. We note that the report is part of the record in 

this case. See Ind. Appellate Rule 27. 
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required for the adoption of Children, in part because the evidence did not 

establish that Father was an “unfit” parent. W.K., 163 N.E.3d at 375-76. 

[11] Following remand and a change of trial court judge, on July 9, 2021, Father 

filed a “renewed motion” to dismiss the adoption petitions and a request for 

emergency custody of Children. Appellant’s App. v. II at 172. On July 29, 

Stepfather filed a petition for custody of Children, citing Indiana Code Section 

31-19-11-5. On August 2, the trial court conducted a hearing on Father’s 

motion to dismiss the adoption petitions and denied it as “premature” because 

neither party had “rested its case” on all the issues raised in the adoption 

petitions and contest of adoption.

2

 Id. at 186. Stepfather subsequently filed a 

motion to intervene as a party in the dissolution action, which the court denied 

as “unnecessary,” and a request for custody as a de facto custodian of Children. 

Id. at 218. Father filed a motion for summary judgment on the issues of 

adoption and custody as a de facto custodian. 

[12] On May 26, 2022, the trial court conducted a hearing on the adoption petitions 

and all pending custody matters. The court heard testimony from Father, 

Stepfather, and the GAL, among others. GAL reports from September 2021, 

January 2022, and May 2022 were admitted into evidence. Each GAL report 

noted that Children wish to live with Stepfather, with parenting time to Father. 

2

 Father did not file a document entitled “Petition to Contest Adoptions” but the trial court found that 

Father’s “filing of September 27, 2019[,] titled Motion to Dismiss, while poorly titled, was sufficiently 

explicit to advise the parties that ... [Father] was contesting the adoption.” Appellant’s App. v. II at 224.
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The GAL reports also indicated that Father had ceased physical discipline of 

Children, and one report noted, “It appears Father has displayed some growth 

in how he parents the Children, and is less reliant on utilizing fear as a tactic 

with the Children.” Ex. at 112. 

[13] On August 30, 2022, the trial court issued its Final Order on custody, which 

included findings of fact and conclusions thereon. Regarding adoption, the trial 

court noted that, per this Court’s prior decision, Father’s consent was required 

for the adoption of Children. Because Father did not consent, the court denied 

Stepfather’s adoption petitions. Regarding custody, the trial court weighed the 

“best interests” of the children factors contained in Indiana Code Section 31-17-

2-8 and the de facto custodian custody factors listed in Indiana Code Section 

31-17-2-8.5.

3

 The trial court granted sole legal custody and primary physical 

custody of Children to Stepfather and ordered parenting time for Father. This 

appeal ensued.

Discussion and Decision

Delay in Dismissing Adoption Petitions

[14] Father maintains that the trial court erred when it denied his July 9, 2021, 

motion to dismiss the adoption petitions as being “premature” because neither 

3

 The trial court erroneously cited Indiana Code Section 31-14-13-8.5 rather than Indiana Code Section 31-

17-2-8.5, but it applied the correct statute. Appealed Order at 16.
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party had “rested its case” on all the issues raised in the adoption petitions and 

the contest of adoption. Appellant’s App. v. II at 186. Although he

acknowledges that the court dismissed the adoption petitions on August 30, 

2022, he asserts that the court committed reversible error by delaying its ruling 

until that time.

[15] Indiana law requires that, “[w]henever a motion to contest an adoption is filed, 

the court shall, before entering a decree under IC 31-19-11, set the matter for a 

hearing to contest the adoption.” Ind. Code § 31-19-10-5. After “hearing 

evidence at the hearing,” the court “shall” dismiss the adoption petition if it 

finds that “a required consent has not been obtained.” I.C. § 31-19-10-

6(2)(A)(ii). 

[16] Here, on December 17, 2019, and April 28, 2020, the trial court held a hearing 

on the issue of whether Father’s consent was required for Stepfather’s adoption 

of the children. The trial court concluded from that hearing that Father’s 

consent to the adoptions was not required. On appeal of that order, a panel of 

this Court reversed. Thus, at the time the trial court “[r]eopened” this case after 

it had received the Court of Appeals’ decision, it was clear that an evidentiary 

hearing on consent had been held and that Father’s consent was required but 

not given. Appellant’s App. v. II at 15. Therefore, under Indiana Code Section 

31-19-10-6(2)(A)(ii), the trial court was required to dismiss the adoption 

petitions. The trial court did so in its order of August 30, 2022. 
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[17] Father asserts that the trial court waited too long to dismiss the adoption 

petitions. However, he cites to no legal authority imposing a time limit for the 

dismissal, and we find none. Moreover, even assuming for the sake of 

argument only that the trial court erred by waiting until August of 2022 to 

dismiss the adoption petitions, Father has failed to show that he suffered any 

harm from that delay. See Ind. Trial R. 61 (providing no error in any ruling or 

order is grounds for reversal on appeal unless the error was “inconsistent with 

substantial justice” and “affect[ed] the substantial rights of the parties”).

[18] Indiana law clearly requires that, after an adoption petition is dismissed, the 

trial court “shall determine the person who should have custody of the child.” 

I.C. § 31-19-11-5(a). It is also clear that Stepfather had “temporary custody [of 

Children] until further order of the court,” i.e., pending a final custody decision. 

August 2, 2019, order of the trial court.4 The latter order was still in effect at 

the time Father sought dismissal of the adoption petitions following remand

from this Court. Thus, even if the trial court had immediately granted Father’s 

July 2021 request to dismiss the adoption petitions, Stepfather still would have 

had temporary custody of the children pending the final custody determination 

that was issued on August 30, 2022.

[19] Father has failed to cite any legal authority for his assertion that the trial court 

should have immediately granted his motion on remand to dismiss the adoption 

4

 Neither party provided a copy of the August 2, 2019, court order in their appendices on appeal. However, 

the order was accessible via Odyssey. 
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petitions, and he has failed to show any harm from the delay in dismissing 

those petitions. 

Custody Determination

[20] Father appeals the custody determination. Our standard of review in custody 

matters is well-settled: custody “determinations are within the trial court’s 

discretion and will not be disturbed except for an abuse of discretion.” Blasius v. 

Wilhoff, 863 N.E.2d 1223, 1229 (Ind. Ct. App. 2007), trans. denied. In 

determining whether the court abused its discretion, “[w]e will consider the 

evidence most favorable to the judgment with all reasonable inferences drawn 

in favor of the judgment, and we will not reweigh the evidence nor will we 

reassess the credibility of witnesses.” Matter of Guardianship of I.R., 77 N.E.3d 

810, 813 (Ind. Ct. App. 2017). 

[21] In addition, where there are findings of fact and conclusions thereon, as there 

are here, 

we first determine whether the evidence supports the findings and 

then whether findings support the judgment. On appeal we shall 

not set aside the findings or judgment unless clearly erroneous, 

and due regard shall be given to the opportunity of the trial court 

to judge the credibility of the witnesses. A judgment is clearly 

erroneous when there is no evidence supporting the findings or 

the findings fail to support the judgment. A judgment is also 

clearly erroneous when the trial court applies the wrong legal 

standard to properly found facts. 
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K.I. ex rel J.I. v. J.H., 903 N.E.2d 453, 457 (Ind. 2009) (quotations and citations 

omitted).

[22] As Father notes, in a custody dispute between a third party and a natural 

parent, there is a presumption that custody with the natural parent is in a child’s 

best interest. See, e.g., In re Guardianship of B.H., 770 N.E.2d 283, 287 (Ind. 

2002). To overcome this presumption and place a child “in the custody of a 

person other than the natural parent, a trial court must be satisfied by clear and 

convincing evidence that the best interests of the child require such a 

placement.” Id. That is, the trial court “must be convinced placement with a 

person other than the natural parent represents a substantial and significant 

advantage to the child.” Id. The burden of proof is on the third party, and, if 

the third party meets that burden, “then custody of the child remains in the 

third party. Otherwise, custody must be modified in favor of the child’s natural 

parent.” K.I., 903 N.E.2d at 461.

[23] In making the custody determination between a natural parent and a third 

party, the trial court may be guided by the “three step approach” outlined in 

Hendrickson v. Binkley, 316 N.E.2d 376, 380 (Ind. Ct. App. 1974) (abrogation on 

other grounds recognized by Riggs v. Riggs, 77 N.E.3d 792, 795 (Ind. Ct. App. 

2017), trans. denied): 

First, it is presumed it will be in the best interests of the child to 

be placed in the custody of the natural parent. Secondly, to rebut 

this presumption it must be shown by the attacking party that 

there is, (a) unfitness, (b) long acquiescence, or (c) voluntary 

relinquishment such that the affections of the child and third 
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party have become so interwoven that to sever them would 

seriously mar and endanger the future happiness of the child. 

The third step is that upon a showing of one of these above three 

factors, then it will be in the best interests of the child to be 

placed with the third party.

B.H., 770 N.E.2d at 286 (quoting Hendrickson).

[24] Father asserts that the trial court erred because it did not base its custody 

determination on the standard articulated in Hendrickson, above. However, our 

Supreme Court has made it clear that the trial court is not limited to the 

Hendrickson three-step approach when making its determination. Id. at 288. 

Rather, in determining the best interest of the child, the trial court must also 

consider the relevant statutory custody factors. In this case, those factors can be 

found at Indiana Code Section 31-17-2-8 and include:

5

(1) The age and sex of the child.

(2) The wishes of the child’s parent or 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.

5

Indiana Code Section 31-17-2-8 relates to initial custody determinations, and Indiana Code Section 31-17-

2-21 relates to modification of custody determinations. As the trial court noted, our Supreme Court has held 

that “the distinctions between the statutory factors required to obtain initial custody and those required for a 

subsequent custody modification are not significant enough to justify substantially different approaches in 

resolving custody disputes. Instead[,] both require a determination of the child’s best interest, and both 

require consideration of certain relevant factors.” K.I., 903 N.E.2d at 460. 
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(4) The interaction and interrelationship of the child with:

(A) the child’s parent or parents;

(B) the child’s sibling; and

(C) any other person who may significantly affect the 

child’s best interests.

(5) The child’s adjustment to the child’s:

(A) home;

(B) school; and

(C) 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 8.5(b) of this chapter.

(9) A designation in a power of attorney of:

(A) the child’s parent; or

(B) a person found to be a de facto custodian of the child.
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[25] The trial court did not abuse its discretion or clearly err in its findings applying 

the above statutory custody standard. The trial court noted that Children were 

thirteen and twelve years old, and both consistently expressed strong wishes to 

remain in the custody of Stepfather, with parenting time to Father. As to 

Children’s relationship with Father, the court noted the GAL testimony and 

report from December 6, 2019, in which the GAL stated Children were in fear 

of Father’s temper and uncomfortable with some of his behaviors such as 

drinking alcohol and hitting Children with a belt as punishment. However, the 

GAL’s more recent reports noted that Father had ceased using physical 

punishment on Children. 

[26] On the other hand, the court noted Children had strong, close relationships 

with Stepfather; their little sister, A.M.; and their maternal grandmother, all of 

whom lived with them in Indiana. Children had been living with Stepfather 

since they were four and three years old. During that time, Stepfather provided 

for Children financially and was a “constant presence in their lives[,] ... 

encourage[ing] them in their school work and extracurricular activities.” 

Appealed Order at 11. Children are “able to talk to [Stepfather] and share their 

concerns and worries with him.” Id. In contrast, Children did not believe they 

could share their feelings with Father, including their fear of physical 

punishment and retaliation for reporting such punishment and their feelings 

about Mother and her death. 

[27] Maternal grandmother was also a “constant presence in the children’s lives,” 

and Children described her as “an integral part of their lives.” Id. at 12. And 
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the GAL described Children’s relationship with A.M. as “close, supportive, and 

loving.” Id. Both Children wished to live with A.M. and maternal 

grandmother at Stepfather’s home in Indiana.

[28] The trial court also found that Children were very well adjusted to their home, 

school, and community in Westfield, Indiana. Children did well in school, had

friends and “good social skills,” and engaged in extracurricular activities. Id. 

Children were also in “good mental” and physical health, despite their grief 

over their Mother’s death. Id. at 13. Stepfather also appeared to be “well 

adjusted.” Id. 

[29] The trial court found that it had “very little information to form an opinion of 

Father’s mental health or physical health,” but noted he was “described to the 

GAL by others as being angry, aggressive, and impulsive.” Id. at 14. The court 

also noted that Father “appears to have little regard for or understanding of the 

impact” of involving Children in the custody proceedings and “frequently 

discussed issues about the case with them.” Id. The court found that Father’s 

relationship with Mother involved domestic violence and Father’s second 

marriage was also described by his second wife as “violent.” Id. at 15. 

[30] Given the above evidence, the trial court found that the best interests of the 

children factors contained in the custody statute weighed in favor of granting 

custody to Stepfather and parenting time to Father. The court found, 

based on the evidence before it and the actions of the litigants, 

[Children] will significantly benefit from a closer relationship 

with those important to them, Sister, Stepfather, Maternal 
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[Grandparents]..., Father, their friends, and fellow church 

members which is demonstrably more likely to be fostered by an 

award of custody to Stepfather. This is a significant advantage 

that cannot be duplicated in Father’s custody.

Id. at 21.

[31] The court held that the presumption in favor of Father “has been rebutted by 

the clear and convincing evidence.” Id. at 19. In reaching that conclusion, the 

trial court noted:

[a]fter watching Father and listening to him and reviewing all the 

evidence presented[,] this Court simply cannot find Father to be 

credible. He presents one conveniently rosey [sic] view of his 

circumstances and life in Texas that is not what is seen by the 

GAL at her visit, it is not supported by the statements of his own 

sons, it is not reflected in his actions in this cause of action, and it 

is not supported by his own collateral contacts who[,] instead of 

describing him as a good a[nd] loving father[,] describe him as 

violent and aggressive. On the other hand, the Court does find 

the Stepfather to be credible.

Id. at 20. 

[32] Those findings were supported by clear and convincing evidence, and the trial 

court’s judgment was supported by those findings.6 Father’s contentions to the 

6

 The trial court also found that Stepfather and Maternal Grandmother were de facto custodians of Children 

and applied the de facto custodian factors outlined in Indiana Code Section 31-17-2-8.5. However, the 

evidence does not support that finding. The court noted that Maternal Grandmother, “on occasion,” had 

cared for Children for “several months.” Appealed Order at 15-16. The court found that Stepfather had 

cared for Children “for a period of approximately 6 weeks prior to initiation of this action” and consistently 
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contrary are requests that we reweigh the evidence and judge witness 

credibility, which we may not do. See I.R., 77 N.E.3d at 813.

Conclusion

[33] Even assuming, without deciding, that the trial court erred in delaying dismissal 

of the adoption petitions, such error was harmless and not a basis for reversal. 

Further, the trial court’s relevant custody findings were supported by clear and 

convincing evidence, and those findings support the final custody 

determination.

[34] Affirmed.

Brown, J., and Weissmann, J., concur.

since the action. Id. at 16. However, a de facto custodian is defined, in relevant part, 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: 

... one (1) year if the child is at least three (3) years of age.” I.C. § 31-9-2-35.5. The one-year period does not 

include “[a]ny period after a child custody proceeding has been commenced[.]” Id. The evidence cited by 

the trial court does not support a finding that Maternal Grandmother or Stepfather were de facto custodians 

as they had not been the “primary caregiver” for children for at least one year, exclusive of the period 

following initiation of custody proceedings. However, we note that this error was harmless, as application of 

the relevant custody factors cited above support the trial court’s custody determination.