IN RE: the Guardianship of Dana Karr III (2025)

MEMORANDUM DECISION

Statement of the Case

[1] Less than one month after Dana and Margaret Karr (“Guardians”) obtained guardianship of Dana Karr III (“Child”), Casey Asher intervened in the guardianship case and filed a petition to remove Guardians and to have herself appointed as Child's guardian. Guardians filed a motion to dismiss Asher's petition, which the trial court granted. Asher now appeals and raises one issue for review: Whether the trial court erred by dismissing her petition.

[2] We affirm.

Facts and Procedural History

[3] In August 2024, Asher was married to Child's father but had filed to dissolve that marriage. In late August, with Asher's support, Guardians petitioned for guardianship of Child, and this petition was granted after a hearing at which Asher appeared, although she was not a party to the case. Three days after the guardianship petition was granted, Asher filed a motion to intervene. Once Asher's intervention motion was granted, she filed a petition (the “Removal Petition”) to remove Guardians as Child's guardians and to appoint herself as Child's successor guardian. Guardians filed a motion to dismiss the Removal Petition pursuant to Indiana Trial Rule 12(B)(6), arguing that Asher had failed to “state a basis upon which a successor guardian may be appointed” under Indiana Code sections 29-3-12-4 and 29-1-10-6. Appellant's App. Vol. II at 18. The trial court agreed and dismissed the Removal Petition. This appeal ensued.

Discussion and Decision

The Trial Court Did Not Err by Dismissing the Removal Petition

[4] Asher challenges the trial court's decision to dismiss the Removal Petition pursuant to Trial Rule 12(B)(6). We review such a ruling de novo. Safeco Ins. Co. of Ind. v. Blue Sky Innovation Grp., Inc., 230 N.E.3d 898, 901 (Ind. 2024) (citing Caesars Riverboat Casino, LLC v. Kephart, 934 N.E.2d 1120, 1122 (Ind. 2010)), reh'g denied (June 3, 2024). A Trial Rule 12(B)(6) motion “tests the legal sufficiency of a complaint”; that is, it tests “whether the allegations in the complaint establish any set of circumstances under which a plaintiff would be entitled to relief.” Id. (quoting Trail v. Boys & Girls Clubs of Nw. Ind., 845 N.E.2d 130, 134 (Ind. 2006)). On appeal, we “do not test the sufficiency of the facts alleged regarding their adequacy to provide recovery but test the sufficiency of whether a legally actionable injury has occurred in a plaintiff's stated factual scenario.” Id. at 902 (citing Trail, 845 N.E.2d at 134). We accept the alleged facts as true and draw “every reasonable inference in favor of the non-moving party.” Id. (citing Trail, 845 N.E.2d at 134). We will affirm an order to dismiss “when it is ‘apparent that the facts alleged in the challenged pleading are incapable of supporting relief under any set of circumstances.’ ” Id. (quoting McQueen v. Fayette Cnty. Sch. Corp., 711 N.E.2d 62, 65 (Ind. Ct. App. 1999), trans. denied).

[5] Before moving to the merits of Asher's arguments, we note that Guardians did not file an appellees’ brief, so we will reverse the trial court's judgment if Asher's brief presents a case of prima facie error. See Salyer v. Washington Regular Baptist Church Cemetery, 141 N.E.3d 384, 386 (Ind. 2020) (quoting Front Row Motors, LLC v. Jones, 5 N.E.3d 753, 758 (Ind. 2014)). “Prima facie error in this context means ‘at first sight, on first appearance, or on the face of it.’ ” Id. (quoting Front Row Motors, 5 N.E.3d at 758).

[6] Asher specifically contends that the Removal Petition “clearly and unequivocally alleges that the Guardians are not acting in [Child]’s best interests,” so Guardians “could be removed if the facts adduced at trial support [Asher]’s allegations.” Appellant's Br. at 8. Pursuant to Indiana Code sections 29-3-12-4(a) and 29-1-10-6(b), a court may remove a person as guardian if that person (1) becomes incapacitated, (2) becomes disqualified, (3) becomes unsuitable or incapable of discharging that person's duties, (4) has mismanaged the estate, (5) has failed to perform any duty imposed by law or by any lawful order of the court, or (6) has ceased to be domiciled in Indiana.

[7] In the Removal Petition, Asher alleged that Guardians “are less suitable as guardians as compared to [Asher]. Though suitable in the absence of [Asher] seeking guardianship, the fact that it is in [C]hild's best interests [Asher] be appointed guardian of Child results in [Asher] being more suitable than [ ]Guardians.” Appellant's App. Vol. II at 12. In other words, Asher does not contend that Guardians are unsuitable, only that they are less suitable than she is. Asher does not allege any other statutory factor that would permit Guardians to be removed. Accepting the facts alleged in the Removal Petition as true and drawing every reasonable inference in favor of Asher inevitably leads to the conclusion that Guardians are not unsuitable guardians for Child, so the alleged facts are incapable of supporting relief under Indiana Code sections 29-3-12-4(a) and 29-1-10-6(b). We therefore cannot say that the trial court erred by dismissing the Removal Petition, and we affirm that decision.

[8] Affirmed.

Felix, Judge.

Brown, J., and Scheele, J., concur.