Jennifer Belinda Ann Burrage, Appellant-Petitioner v. Aaron Kidwell and Tymeisha Burrage, Appellees-Respondents (2025)

MEMORANDUM DECISION

[1] Jennifer Belinda Ann Burrage (“Grandmother”) appeals the Floyd Superior Court's order denying her petition to establish her as de facto custodian of her grandson J.K. (“Child”) and seeking physical and legal custody of Child. Grandmother presents one issue for our review, namely, whether the trial court erred when it denied her petition.

[2] We reverse and remand for further proceedings.

Facts and Procedural History

[3] In July 2021, Tymeisha Burrage (“Mother”) asked Grandmother to drive from Indiana to Alabama to get Child and take him to live with her.¹ Child has lived with Grandmother in Indiana since that time. However, sometime during the summer of 2022, Mother asked Grandmother to return Child to live with Mother in Alabama. Grandmother did not comply with Mother's request. Mother asked Grandmother three more times over the next two years to return Child to her care, but Grandmother refused each time.

[4] Finally, in July 2024, Mother traveled to Grandmother's house to get Child, and Grandmother filed a petition for an ex parte order of protection to prohibit Mother from having contact with Child. That ex parte order of protection was granted. Grandmother also filed a petition to establish her de facto custodian status and to grant her custody of Child. In November, Mother filed a petition for Child's immediate return to Mother's custody.

[5] Following a hearing, the trial court found that Grandmother had not presented sufficient evidence to show that she was Child's de facto custodian. Accordingly, the court denied Grandmother's petition for custody and granted Mother's petition for the immediate return of Child to Mother's custody. This appeal ensued.

Discussion and Decision

[6] Grandmother argues that the trial court erred when it denied her petition. As this Court has explained,

Indiana Code Section 31-9-2-35.5 defines “de facto custodian” in relevant part as follows:

“De facto custodian”, for purposes of IC 31-14-13 [paternity cases], IC 31-17-2 [custody and visitation cases], and IC 31-34-4 [juvenile cases], means 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.

Any period after a child custody proceeding has been commenced may not be included in determining whether the child has resided with the person for the required minimum period. The term does not include a person providing care for a child in a foster family home (as defined in IC 31-9-2-46.9).

Before custody can be awarded to a third party, that third party must demonstrate de facto custodian status by clear and convincing evidence. See Ind. Code § 31-17-2-8.5. In reviewing a judgment requiring proof by clear and convincing evidence, an appellate court may not impose its own view as to whether the evidence is clear and convincing, but must determine, by considering only the probative evidence and reasonable inferences supporting the judgment and without weighing evidence or assessing witness credibility, whether a reasonable trier of fact could conclude that the judgment was established by clear and convincing evidence. In re Guardianship of B.H., 770 N.E.2d 283, 288 (Ind. 2002).

A.J.L. v. D.A.L., 912 N.E.2d 866, 869-70 (Ind. Ct. App. 2009).

[7] Initially, we note that Mother has not filed an appellee's brief. When the appellee fails to file a brief on appeal, we may reverse the trial court's decision if the appellant makes a prima facie showing of reversible error. McGill v. McGill, 801 N.E.2d 1249, 1251 (Ind. Ct. App. 2004). In this context, prima facie error is defined as “at first sight, on first appearance, or on the face of it.” Orlich v. Orlich, 859 N.E.2d 671, 673 (Ind. Ct. App. 2006). This rule was established to make clear that it is not the burden of the court on appeal to rebut apparently valid arguments advanced for reversing the trial court's judgment. See McGill, 801 N.E.2d at 1251.

[8] The undisputed evidence shows that, although Mother maintained close communication with Child while he was living with Grandmother, Grandmother was the sole caregiver for Child for more than three years, and Mother did not provide financial support for Child while he was living with Grandmother. That is a prima face case that Grandmother was Child's de facto custodian.

[9] Still, the trial court found that because Mother had asked Grandmother to return Child to Mother's home in Alabama before one year had passed Grandmother failed to show that she was Child's de facto custodian. Nothing in the statute supports that determination. The statute tolls time only after a child custody proceeding has been commenced, not after one or more informal requests to return a child. Because the undisputed evidence shows that Grandmother satisfied the elements of the de facto custodian statute, we reverse the trial court's judgment.

[10] Having concluded that Grandmother is Child's de facto custodian, we remand to the trial court for further proceedings, namely, for it to consider custody over Child. As we explained in A.J.L.:

Once a court determines a “de facto custodian” exists and that individual has been made a party to a custody proceeding, in addition to the usual “best interests” of the child factors contained in Indiana Code Section 31-17-2-8, the court shall consider the following factors in determining the child's best interests:

(1) The wishes of the child's de facto custodian.

(2) The extent to which the child has been cared for, nurtured, and supported by the de facto custodian.

(3) The intent of the child's parent in placing the child with the de facto custodian.

(4) The circumstances under which the child was allowed to remain in the custody of the de facto custodian, including whether the child was placed with the de facto custodian to allow the parent seeking custody to:

(A) seek employment;

(B) work; or

(C) attend school.

Ind. Code § 31-17-2-8.5(b). “The court shall award custody of the child to the child's de facto custodian if the court determines that it is in the best interests of the child.” Ind. Code § 31-17-2-8.5(d).

912 N.E.2d at 871.

[11] For all these reasons, we reverse the trial court's denial of Grandmother's petition to establish de facto custody of Child and remand for proceedings regarding custody over Child.

[12] Reversed and remanded for further proceedings.

FOOTNOTES

1.   The record on appeal does not indicate Child's age, but the evidence shows that he was in middle school in January 2025. In that case, Child would have been of elementary school age in July of 2021 and certainly over the age of three.

Memorandum Decision by Judge Mathias

Vaidik, J., and Pyle, J., concur.