Opinion
CV-24-22
12-11-2024
TIFFANY CROLEY APPELLANT v. JOSHUA FENECH APPELLEE
Leslie Copeland Law & Mediation, by: Leslie Copeland, for appellant. One brief only.
APPEAL FROM THE WASHINGTON COUNTY CIRCUIT COURT [NO. 72DR-23-182] HONORABLE BETH STOREY BRYAN, JUDGE
Leslie Copeland Law & Mediation, by: Leslie Copeland, for appellant.
One brief only.
MIKE MURPHY, JUDGE
This is a one-brief appeal. Appellant Tiffany Croley appeals the order of the Washington County Circuit Court awarding her ex-boyfriend, appellee Joshua Fenech, in loco parentis status to, and visitation with, her daughter, MC. MC was just a few days shy of her third birthday when the order from which Tiffany appeals was entered. We affirm.
On February 3, 2023, Joshua filed a petition to establish paternity of MC, who was two years old at the time. He alleged he is MC's biological father and he should be awarded primary custody. Tiffany answered and denied that Joshua is the father. She asked that Joshua be removed from MC's birth certificate. A DNA test was administered, and it was established that Joshua is not MC's father. Joshua then amended his complaint to allege that he stands in loco parentis to MC and requested joint custody. Tiffany denied that Joshua stood in loco parentis.
A hearing was held in June 2022. The court heard testimony from both Joshua and Tiffany. The evidence at the hearing established that Joshua and Tiffany were in a relationship, broke up for a little while, and then got back together around the time Tiffany found out she was pregnant with MC. Joshua was told, and he believed, he was MC's father. He was at the hospital for MC's birth. His name is on MC's birth certificate. MC has his last name. Joshua carries insurance on MC. Tiffany, Joshua, and MC lived together as a family in California from the time MC was born until they moved to West Fork, Arkansas, around February 2022. They continued to live together as a family in West Fork.
Around October 2022, Joshua started working as a long-haul truck driver and was away for up to a few weeks at a time. Joshua and Tiffany broke up around November 2022. Tiffany continued to live with Joshua, and the parties continued to coparent MC until around February 2023 when Tiffany moved out without any notice to Joshaua and took MC with her.
The testimony further established that Tiffany has been a stay-at-home mom for all of MC's life while Joshua worked and supported the family financially. Tiffany was undisputedly MC's primary caretaker, but both parties testified that Joshua would help parent whenever he was home. Joshua testified he changed diapers and clothes, made dinner, and "always put [MC] to bed." Even Tiffany testified that Joshua is the only father figure MC has ever known.
After hearing testimony from Joshua and Tiffany and argument from counsel, the court ruled from the bench:
All right. Thank you. All right. The uncontroverted testimony is that Mr. Fenech has been held out as the biological father of [MC] since -- well, prior to her birth, and certainly since her birth two and a half years ago. He shared in the caregiving responsibilities with Miss Croley ever since the child was born. While he certainly worked for long stretches of time,
most recently as an over-the-road truck driver, when he was home, he would assume caregiving responsibilities with Miss Croley.
The further uncontroverted testimony is that they moved to West Fork approximately one year ago in February of 2022. From February of '22 until March of '23 they resided in the home there in West Fork. They resided as a couple until November of 2022, and then resided more as roommates and co-parents until March of 2023.
Ms. Croley then left the residence in March of 2023 without prior notice to Mr. Fenech and has prohibited him from exercising visitation or seeing the minor child for at least the past 90 days. Certainly since March of 2023.
Really, with no good explanation, other than the fact that they'd broken up, and she had moved on with another boyfriend.
Again, it's uncontroverted that Mr. Fenech was believed to be the father, was placed on the birth certificate, was treated as the father, held the responsibilities and duties as the father, paid for almost all of the expenses of Miss Croley and the minor child since her birth, with occasional financial assistance from [ ] Miss Croley's mother, when there were extra expenses like the septic system needing repair or extra food needing to be purchased.
The Court finds that Mr. Fenech has met the burden to establish in loco parentis. Again, he has been viewed as, been treated as, and has acted as her only father since the date of her birth, and that only changed when Miss Croley found another boyfriend . . . and relocated to Harrison, Arkansas.
So based on that, the Court finds that it's in the child's best interest that visitation be granted for Mr. Fenech. I certainly do not find that either parent is unfit. I find both parents to be fit. They're just no longer able to co-parent together. Certainly living together now that each have moved on with another relationship.
After discussing how visitation would work, the circuit court admonished Tiffany as follows:
All right. Here's the deal, Miss Croley. It's really important -- you've held him out as the father, you told him he was the father, you put him on the birth certificate, he has acted as the father, your family members thought he was the father. So simply because you have moved on in your romantic relationship, it's not fair to suddenly cut off that relationship. Not only is it not fair to Mr. Fenech, but it's certainly not fair to your daughter. So it's important that you reaffirm and reestablish that relationship between the two of them if you've said anything in these last 90 days that would imply that she's not his [daughter]. Okay?
An order to that effect was entered on October 18. It recited that Joshua stood in loco parentis to MC and that it is in her best interests for him to be awarded visitation. Joshua was also ordered to pay child support. On appeal, Tiffany argues that the circuit court erred in granting Joshua in loco parentis status and awarding visitation.
This court has traditionally reviewed matters that sound in equity de novo on the record with respect to factual questions and legal questions. Daniel v. Spivey, 2012 Ark. 39, 386 S.W.3d 424. We will not reverse a finding made by the circuit court unless it is clearly erroneous. Id. We have further stated that a circuit court's finding is clearly erroneous when, despite supporting evidence in the record, the appellate court viewing all of the evidence is left with a definite and firm conviction that a mistake has been made. Id. We give due deference to the superior position of the circuit court to view and judge the credibility of the witnesses. Foust v. Montez-Torres, 2015 Ark. 66, at 3-4, 456 S.W.3d 736, 738. This deference to the circuit court is even greater in cases involving child custody or visitation because a heavier burden is placed on the circuit court to utilize to the fullest extent its powers of perception in evaluating the witnesses, their testimony, and the best interest of the children. Alphin v. Alphin, 364 Ark. 332, 219 S.W.3d 160 (2005).
It is notable that Tiffany does not argue on appeal that the award of visitation is contrary to MC's best interest. In the absence of any argument, we consider the point waived. See Daniel, 2012 Ark. 39, at 5 n.1, 386 S.W.3d at 428 n.1.
The Latin phrase "in loco parentis" literally translated means "in the place of a parent." Daniel, supra. This court has defined in loco parentis as "in place of a parent; instead of a parent; charged factitiously with a parent's rights, duties, and responsibilities." Standridge v. Standridge, 304 Ark. 364, 372, 803 S.W.2d 496, 500 (1991) (quoting Black's Law Dictionary, (5th ed. 1979)). A person who stands in loco parentis to a child puts himself or herself in the situation of a lawful parent by assuming the obligations incident to the parental relation without going through the formalities necessary to a legal adoption. Babb v. Matlock, 340 Ark. 263, 9 S.W.3d 508 (2000). This relationship involves more than a duty to aid and assist and more than a feeling of kindness, affection, or generosity. Daniel, 2012 Ark. 39, at 6, 386 S.W.3d at 428.
After a de novo review of the record, we are not left with a definite and firm conviction that a mistake was made. As the circuit court explained, Joshua "has been viewed as, been treated as, and has acted as [MC]'s only father since the date of her birth." It is hard to imagine anyone who puts himself more in the situation of a lawful parent than a man who believes himself to be and comports himself as a lawful parent.
On appeal, Tiffany argues that Joshua spent long hours away, she was the primary caretaker, and the time he did spend at home did not amount to a meaningful quantity of time. She explains that Joshua's relationship with MC can be likened to that of a "caring stepparent" like the parents found in Standridge, supra, and Daniel, supra.
In Standridge, our supreme court overturned a circuit court's decision that a stepfather stood in loco parentis to his wife's child. In that case, the stepfather had been married to the child's mother for fifteen months. The evidence showed that the stepfather provided monetary support for the child; that he took the child hunting, fishing, and swimming; and that the child accompanied the stepfather to work most every day. In reversing, we accepted that these facts were established in the record but held that "the court erred not in finding facts but in characterizing the relationship as one in loco parentis." Standridge, 304 Ark. at 370, 803 S.W.2d at 499. As the court later explained in Daniel, Standridge stood for the proposition that "something more than being a stepparent must be shown to establish an in loco parentis relationship." Daniel, supra (citing Stair v. Phillips, 315 Ark. 429, 867 S.W.2d 453 (1993)).
In Daniel, our supreme court reversed the circuit court's decision awarding visitation to the stepfather. In that case, the stepfather worked long hours as a welder and often had to travel for work, sometimes for several weeks at a time. Relying partly on Standridge, the Daniel court explained,
As discussed, our case law reflects that the hallmark of the in loco parentis relationship is the assumption of the rights, duties, and responsibilities associated with being a parent. Thus, one's mere status as a stepparent does not suffice. In ruling that appellee stood in loco parentis to the child, the circuit court considered the length of time appellee had been in the child's life and the testimony describing the closeness of the relationship as being like that of a parent and child. The circuit court noted that appellee and the child participated in recreational activities, and the court also found that appellee disciplined the child when necessary and praised her when justified. Upon our de novo review, we also take into account appellee's testimony that he occasionally tended to her needs, provided necessities, babysat, and attended school programs. While we will not overturn a circuit court's factual determinations unless they are clearly erroneous, we are free in a de novo review to reach a different result required by the law. All things considered, we are convinced that these facts do not rise to the level that is necessary to establish an in loco parentis relationship. In our view, the sum of these facts demonstrates that appellee assumed the role of a caring stepparent, but they fall well short of establishing that appellee embraced the rights, duties, and responsibilities of a parent. Thus, we hold that the circuit court erred by characterizing the relationship as one of in loco parentis, and we reverse the award of visitation.2012 Ark. 39, at 8-9, 386 S.W.3d at 429-30 (internal citations omitted).
Compare these stepfathers to the stepmother in McKenzie v. Moore, 2015 Ark.App. 6, 453 S.W.3d 686. In McKenzie, the stepmother petitioned for and received in loco parentis status of, and visitation with, the thirteen-year-old daughter of her recently deceased husband. The stepmother had been in the child's life since the girl was six, and at the time of her father's death, the child was living with her father and stepmother. The father was a pilot and traveled frequently, and the stepmother tended to the child's day-to-day needs, including school and extracurricular activities, haircuts, clothes shopping, and doctor's appointments. We affirmed the grant of visitation to the stepmother largely due to her role as the child's primary caregiver and the length of time the parent-child relationship existed.
Tiffany argues that Joshua's relationship with MC does not rise to the level of caregiving established in McKenzie and is instead more akin to the "caring stepfathers" in Daniel and Standridge. She acknowledges that Joshua provided financial support and loves MC, but he was away working- recently for weeks at a time-did not engage in MC's daily caretaking, and had not ever provided care for MC for an extended period by himself.
We are not persuaded that Joshua's work schedule and lack of status as a daily caretaker, however, are as fatal to his status with MC as it might be in cases where the stepparent is the petitioner. Joshua's and MC's relationship developed from before MC's birth as a genuine parentchild relationship, and the facts here are more similar to those in our same-sex-partnership decisions such as McCrillis v. Hicks, 2017 Ark.App. 221, 518 S.W.3d 734, and Bethany v. Jones, 2011 Ark. 67, 378 S.W.3d 731, where the child grows up believing a person to be his or her parent, and the parent raises and interacts with that child as his or her own, versus our stepparent cases in which the relationship with the child develops as a byproduct of a relationship with the child's biological parent.
In Bethany, our supreme court stated that the doctrine of in loco parentis focuses on the relationship between the child and the person asserting that he or she stands in loco parentis. Bethany, 2011 Ark. 67, at 10, 378 S.W.3d at 737. The focus should be on what, if any, bond has formed between the child and the nonparent. Id. Here, Joshua testified that
[MC] loves me. Like, if I would walk into the door, she would say, Daddy, Daddy, Daddy, and run up to me and give [me] a big ole hug. And she would literally wrap her arms around me, and her legs, and squeeze me.... I love her, even though she's not biologically mine. She's my whole world. I was happy that, you know, I thought she was mine. When she was born, she brightened my whole world.
In both Bethany and McCrillis our courts affirmed the circuit courts' finding that the nonbiological parents stood in loco parentis. In those cases, as in ours, the children called the nonbiological parents "mama" and "mommy" (here, Joshua is obviously "daddy"); the children had the nonbiological parent's last names; and after the children were born, the couples coparented the children. Furthermore, in McCrillis, this court specifically rejected the argument that Tiffany makes here that because McCrillis was not the stay-at-home parent, she had not proved that she had formed a sufficient bond with the child to establish in loco parentis status. McCrillis, 2017 Ark.App. 221, at 13, 518 S.W.3d at 742-43. In Bethany, the child was about four when the litigation began; in McCrillis, she was about a year and a half.
Having reviewed the record, we hold that there is evidence to support the circuit court's finding that Joshua stood in loco parentis to MC. Tiffany does not argue that the finding was not in MC's best interest. There is testimony that Joshua loves MC, and she loved him; there is ample evidence that he assumed the obligations and responsibilities of having a child-he paid MC's every bill from the day she was born, working long hours to do it; and he is the only father MC has ever known. We are not left with a definite and firm conviction that a mistake was made, and we affirm.
Affirmed.
ABRAMSON, GLADWIN, and WOOD, JJ., agree.
BROWN, J., dissents.
Waymond M. Brown, Judge, dissenting.
One of the most fundamental rights of a parent is the authority and responsibility to decide what is best for one's own child, which undoubtedly encompasses the right to choose whom to permit and whom to restrict access to the child. Here, against the express wishes of the natural mother, the majority is dispensing with that authority in favor of the mother's former boyfriend's assertion of rights based on his arguably limited involvement with the child over a two-and-a-half-year period. I cannot agree that Fenech, a nonparent, has demonstrated the high level of bonding or involvement in MC's care sufficient to establish in loco parentis standing.
The Due Process Clause of the Fourteenth Amendment protects the rights of parents to direct and govern the care, custody, and control of their children. A nonparent lacks standing to petition for custody or visitation where the nonparent does not stand in loco parentis to the child at the time of the petition.
See Troxel v. Granville, 530 U.S. 57 (2000).
Foust v. Montez-Torres, 2015 Ark. 66, 456 S.W.3d 736.
Although stated in the majority opinion, it bears repeating that in Daniel v. Spivey, our supreme court provided the following explanation of the doctrine of in loco parentis:
The Latin phrase, "in loco parentis," literally translated means "in place of a parent." Simms v. United States, 867 A.2d 200 (D.C. 2005). This court has defined in loco parentis as "in place of a parent; instead of a parent; charged factitiously with a parent's rights, duties, and responsibilities." Standridge v. Standridge, 304 Ark. 364, 372, 803 S.W.2d 496, 500 (1991). A person who stands in loco parentis to a child puts himself or herself in the situation of a lawful parent by assuming the obligations incident to the parental relation without going through the formalities necessary to a legal adoption. Babb v. Matlock, 340 Ark. 263, 9 S.W.3d 508 (2000). This relationship involves more than a duty to aid and assist, and more than a feeling of kindness, affection, or generosity. Simms, supra.
One's mere status as a stepparent does not support a finding of in loco parentis. Stair v. Phillips, 315 Ark. 429, 867 S.W.2d 453 (1993). "Something more must be shown to
qualify as standing in loco parentis." Id. at [435], 867 S.W.2d at 456. In loco parentis refers to a person who has fully put himself in the situation of a lawful parent by assuming all the obligations incident to the parental relationship and who fully discharges those obligations. Rutkowski v. Wasko, 286 A.D. 327 (N.Y.App.Div. 1955). A stepparent who furnishes necessities for a minor child of his or her spouse and who exercises some control over the child does not, by those acts alone, establish a parental relationship. Id. In making a determination as to whether a nonparent stands in loco parentis, courts consider the totality of the circumstances and do not lightly infer the intent of the person seeking to be considered as standing in loco parentis. Smith v. Smith, 922 So.2d 94 (Ala. 2005). While the length of time a person spends with a child is not determinative, it is a significant factor in considering whether that person intended to assume parental obligations or has performed parental duties. Id.
Our appellate courts have held that a stepparent may be awarded visitation with a child over the objection of the natural parent if the stepparent stands in loco parentis to the child and visitation is in the child's best interest. In Daniel, our supreme court reversed the circuit court's award of visitation to the stepfather. There, the stepfather alleged that he stood in loco parentis to the child for the past five years, living in the same home as the child both prior to and during his marriage to the child's natural mother. The record established that the stepfather's job as a welder involved long hours and often required travel that kept him away from home for weeks at a time. The stepfather testified that he took the child hunting, fishing, and frog gigging and contributed financial support toward expenses such as childcare and groceries. He further stated that he picked the child up from daycare on occasion and attended school-related events. The child's mother acknowledged that, when he was not working, the stepfather spent much of his time with her and the child. She admitted that he loves the child, accompanied her to the child's school functions, and contributed $1000 a month toward expenses. In reversing the circuit court's finding of in loco parentis, our supreme court stated that while the stepfather had "occasionally tended to [the child's] needs, provided necessities, babysat, and attended school programs . . . the sum of these facts demonstrates that appellee assumed the role of a caring stepparent, but they fall well short of establishing that appellee embraced the rights, duties, and responsibilities of a parent."
Bethany v. Jones, 2011 Ark. 67, 378 S.W.3d 731.
Supra.
Croley argues that the circumstances presented in this case are akin to the situation presented in Daniel. Like the stepparent in Daniel, Fenech provided financial support, loves MC, and helped care for her when he was not away working. She points out that Fenech did not engage in MC's daily caretaking, and he had not ever provided care for MC for an extended period without Croley present. Croley asserts that this falls short of the level that is required to establish an in loco parentis relationship. I agree.
Fenech testified that when he worked locally, he left for work at 2:00 or 3:00 a.m. and worked until 6:00 p.m.; sometimes he worked until 8:00 to 10:00 p.m. When he worked as an over-the-road truck driver, he was away for three- to four-week stretches at a time; however, he was only home for a few days before he had to leave again. The record definitively established that Fenech's job as a truck driver required him to work long hours and caused him to be away from home for weeks at a time, up to a month, with only a brief period at home before he left again. There was no testimony that he, at any time, remained off work and at home for any significant amount of time during MC's life. While he may have spent most of his time with Croley and MC when he was not working, there is no indication that this amounted to a meaningful quantity of time. Fenech admitted that Croley provided the care for MC while he was at work, which, plainly, was much of the time.
As to Fenech's testimony that he provided the most care for MC in terms of changing diapers and feeding, we hold that this defies logic and is in stark contrast to the testimony regarding his work schedule. Taking his own testimony as true, Fenech was on the road for weeks at a time; he also worked early mornings and late nights when he drove a truck locally. Furthermore, Fenech's testimony regarding the care he provided to MC stems largely from the period immediately following her birth, when Croley was recovering from her C-section; the care he detailed was short term and not indicative of his level of caregiving throughout MC's life.
As in Daniel, the testimony was that MC and Fenech had a father-child relationship prior to the parties' separation. In Daniel, the parties were married, and the nonparent was in the child's life for five years, significantly longer than the two years Fenech was in a nonmarried, dating relationship with Croley. Yet, even in Daniel, the courts overturned the in loco parentis finding, holding that something more is needed. This court has stated multiple times that actions of a nonparent must go beyond those of a loving stepparent to trump the objections of a parent and justify an award of visitation rights. The testimony, facts, and evidence presented in this case do not rise to such a high level. While I in no way diminish Fenech's contribution to MC's care and the benefit of his role in her life, I cannot say that his actions went above those of one acting as a stepparent. Because he was not MC's primary caretaker, he was not involved in her daily care, and his actions did not amount to the high level of active parenting and significant length of time required to establish in loco parentis status, I disagree with the majority's conclusion and would reverse the circuit court's finding that Fenech stood in loco parentis to MC and awarding him visitation rights to his ex-girlfriend's young daughter. By way of the majority opinion, we have opened the door for single parents to forever share coparenting responsibilities with an ex-partner who provided financial support; slept in the same home, albeit inconsistently; and participated in any aspect of the child's life, no matter how brief the relationship may have been. I would reserve in loco parentis status for the rare situations in which the parent-child relationship is much more deeply rooted. This decision has lowered the bar to the previously high standard held in these cases.
Furthermore, the majority notes that Fenech believed he was MC's biological father, signed her birth certificate, and gave her his last name. I am sympathetic to Fenech's position in discovering that he is not MC's father; however, a mistaken belief that one is the biological parent and proceeds accordingly does not confer rights to a child. There is no case law that provides a different standard in these situations. In my view, that is what the majority has done.
I also take the opportunity to address another issue with Fenech's in loco parentis status: intent. Literally translated, in loco parentis means "in place of a parent." In loco parentis standing is reserved for a person who puts himself or herself in the position of a lawful parent by assuming parental obligations without going through the adoption process. Fenech did not willfully assume parental obligations that he knew not to be his; he believed he was MC's lawful parent. Only once the parties separated did he discover that he was not required to undertake parental responsibilities for MC. Fenech did not go above and beyond to care for a child who he knew was not his biological child. In all other in loco parentis cases cited by the majority, the nonparent intentionally and willfully cared for, bonded with, financially supported, and otherwise undertook responsibilities for a child the nonparent knew he or she was not required to provide such care and support for. At the hearing, Fenech testified, "I thought she was mine." Clearly, the role he played in MC's life for two and a half years was based on his mistaken belief that he had a parental obligation to do so. This is not the same as providing a high level of care for a child because he chose to. Moreover, the majority likens this case to those involving in loco parentis issues within the realm of same-sex relationships. However, in those circumstances, the nonparent willingly and intentionally undertook parental responsibilities for a child known to not biologically be one's own natural child. It is the intent to assume parental duties to a child that one is not obligated to care for that is distinguishable from the facts presented here.
Daniel, 2012 Ark. 39, at 6, 386 S.W.3d at 428 (citing Simms, supra).
See Babb v. Matlock, 340 Ark. 263, 9 S.W.3d 508 (2000).
For the reasons stated herein, I respectfully dissent.
HARRISON, C.J., joins.