author: FRIEDLANDER, Judge.

text:
    A.C., Appellant-Petitioner, v. N.J., Appellee-Respondent.
    No. 20A04-1301-DR-37.
    Court of Appeals of Indiana.
    Oct. 31, 2013.

      Lesa C. Duvall, Stephanie L. Bloomer, Kristin D. Caldwell, Duvall Bloomer & Caldwell, P.C., Indianapolis, IN, Attorneys for Appellant.
    Amy D. Griner, Griner & Company, Mishawaka, IN, Attorney for Appellee.
   OPINION

FRIEDLANDER, Judge.

During the course of their same-sex domestic partnership, N.J. (Mother) and A.C. (Partner) decided to have a child together. Mother was artificially inseminated with donor semen and gave birth to C.J. (Child), and for a time, Mother, Partner, and Child functioned as a family unit. When Child was two years old, Mother and Partner ended their relationship. Thereafter, Partner exercised regular visitation with Child for several months, until Mother stopped all contact between Partner and Child. Partner then filed a petition seeking joint custody and visitation, which the trial court denied. Partner now appeals, raising the following restated issues:

1. Did the trial court err in declining to enforce the parties' agreement that Partner would be a parent to Child?
2. Did the trial court err in denying Partner's request for joint custody?
3. Did the trial court err in concluding Partner lacked standing to be granted visitation?

We affirm in part, reverse in part, and remand with instructions.

Partner and Mother lived together in a same-sex domestic relationship for several years. In August 2007, when they had been together for two years, Partner and Mother had a commitment ceremony. The couple also decided to have a child via artificial insemination with donor semen, and they agreed that Mother would carry the child. As a result of the insemination, Mother became pregnant and gave birth to Child in April 2008. Partner was present at Child's birth and cut the umbilical cord.

After Child's birth, Mother, Partner, and Child lived together as a family unit for over two years, with the exception of an approximately two-month period shortly after Child's birth when Partner moved out due to difficulties in her relationship with Mother. During the time they all lived together, Mother was Child's primary caregiver and did not consistently work outside the home. Partner worked and provided financial support for the family for the majority of this time. Mother provided financial support as well, in the form of wages when she was working, unemployment compensation and short-term disability benefits when she was not, and student loans and a small inheritance. Child referred to Mother as "Mama" and Partner as "Mommy." Transcript at 9. When Child attended preschool, Mother listed Partner as the co-parent and emer-geney contact with the school. Mother and Partner discussed the possibility of Partner adopting Child, but no adoption proceedings were ever commenced.

Mother and Partner terminated their relationship and ceased living together in August 2010, when Child was a little over two years old. Mother maintained custody of Child and, for the next nine months, allowed Partner liberal visitation with Child-Child typically spent two or three overnights per week with Partner. According to Mother, Partner did not provide financial support during this time, with the exception of a few packages of diapers and approximately eighty dollars. Mother ended all contact between Partner and Child in July 2011 due to concerns about instability in Partner's living arrangements and possible drug use. Partner has not seen Child since October 2011, when she went to visit him at his daycare.

On January 18, 2012, Partner filed a petition seeking custody of Child, in which she argued it was always the parties' intent that both Partner and Mother would be considered Child's parents, and that it was in Child's best interests for Partner to have custody. Partner also asserted that she was a de facto custodian. When the matter came to trial on October 30, 2012, Partner clarified that she was seeking joint custody and visitation rather than sole custody. The trial court issued its order denying Partner's requests for joint custody and visitation on December 31, 2012. Partner now appeals.

When a trial court enters findings of fact and conclusions of law pursuant to Indiana Trial Rule 52(A), we apply a two-tiered standard of review. In re Visitation of M.L.B., 988 N.E.2d 583 (Ind.2013). We must first determine whether the evidence supports the findings, and second, whether the findings support the judgment. K.I. ex rel J.I. v. J.H., 903 N.E.2d 453, 457 (Ind.2009). We will set aside findings of fact and conclusions of law only if they are clearly erroneous, and " 'due regard shall be given to the opportunity of the trial court to judge the eredibility of witnesses'" M.S. v. C.S., 938 N.E.2d 278, 281-82 (Ind.Ct.App.2010) (quoting K.I. ex rel. J.I. v. J.H., 903 N.E.2d 453, 457 (Ind.2009)). A judgment is clearly erroneous when the record contains no evidence supporting the findings, the findings fail to support the judgment, or when the trial court applies an incorrect legal standard to properly found facts M.S. v. C.S., 938 N.E.2d 278.

Where, as here, a trial court enters findings of fact and conclusions of law sua sponte, the specific findings control only as to the issues they cover, while a general judgment standard applies to issues on which the trial court has not entered findings. Id. We may affirm a general judgment on any theory supported by the evidence. Id. "As we have repeatedly observed in child eustody cases, trial courts are in the position to see the parties, observe their conduct and demeanor, and hear their testimony; therefore, their decisions receive considerable deference on appeal." Nunn v. Nunn, 791 N.E.2d 779, 787 (Ind.Ct.App.2008). Pure questions of law, however, are reviewed de novo. M.S. v. C.S., 938 N.E.2d 278.

1.

Because the issue is potentially dispositive, we first address Partner's argument that the trial court erred in declining to enforce the agreement between Mother and Partner that Partner would be child's second parent. Mother does not dispute that she agreed to raise Child with Partner, but she argues that such agreements are unenforceable in Indiana.

Nearly a decade ago, this court first addressed the issue of whether two women in a same-sex domestic partnership who agree to bear and raise a child together by artificial insemination of one of the partners with donor semen are both the legal parents of the resulting child. In re A.B., 818 N.E.2d 126 (Ind.Ct.App.2004), vacated by King v. S.B., 837 N.E.2d 965 (Ind.2005). In that case, King and Benham lived together in a same-sex domestic relationship for nearly nine years. The couple participated in a commitment ceremony and held themselves out to their families, friends, and communities as being committed domestic partners. Several years later, the couple decided to raise a child together and agreed that Benham would be inseminated with semen donated by King's brother. All parties involved intended for King and Benham to be the co-parents of the resulting child. King was present for and participated in A.B.'s birth, and subsequently acted as A.B.'s second parent. Additionally, King filed a petition to adopt A.B. with Benham's consent, but when the couple briefly separated prior to the completion of the adoption, Benham withdrew her consent. The couple subsequently ree-onciled, but did not pursue the adoption further. King and Benham ended their relationship in January 2002, and King thereafter paid monthly support and had regular and liberal visitation with A.B. until July 2003, when Benham unilaterally terminated visitation and began rejecting support payments.

Thereafter, King filed a declaratory judgment action seeking to be recognized as A.B.'s legal parent, with all the rights and obligations attendant to that status. Alternatively, the complaint asserted that even if King was not A.B.'s legal parent, she was nonetheless entitled to continued visitation because she had acted in loco parentis and in a custodial capacity. Ben-ham filed a motion to dismiss the complaint pursuant to Ind. Trial Rule 12(B)(6) for failure to state a claim on which relief may be granted, which the trial court granted. This court reversed, reasoning as follows:

[We agree with [King] that "no [legit, imate] reason exists to provide the children born to lesbian parents through the use of reproductive technology with less security and protection than that given to children born to heterosexual parents through artificial insemination." As we have recently observed in the context of same-sex adoptions, we cannot close our eyes to the legal and social needs of our society; the strength and genius of the common law lies in its ability to adapt to the changing needs of the society it governs.
"[Olur paramount concern should be with the effect of our laws on the reality of children's lives. It is not the courts that have engendered the diverse composition of today's families. It is the advancement of reproductive technologies and society's recognition of alternative lifestyles that have produced families in which a biological, and therefore a legal, connection is no longer the sole organizing principle. But it is the courts that are required to define, declare and protect the rights of children raised in these families, usually upon their dissolution. At that point, courts are left to vindicate the public interest in the children's financial support and emotional well-being by developing theories of parenthood, so that "legal strangers" who are de facto parents may be awarded custody or visitation or reached for support. Case law and commentary on the subject detail the years of litigation spent in settling these difficult issues while the children remain in limbo, sometimes denied the affection of a "parent" who has been with them from birth."
We encourage the Indiana legislature to help us address this current social reality by enacting laws to protect children who, through no choice of their own, find themselves born into unconventional familial settings. Until the legislature enters this arena, however, we are left to fashion the common law to define, declare, and protect the rights of these children. We, therefore, hold that when two women involved in a domestic relationship agree to bear and raise a child together by artificial insemination of one of the partners with donor semen, both women are the legal parents of the resulting child.

In re A.B., 818 N.E.2d at 131-32 (citations and footnote omitted, emphasis supplied).

Were it still good law, In re A.B. might be dispositive. Our Supreme Court, however, granted transfer, vacating our opinion in full. See Ind. Appellate Rule 58(A); King v. S.B., 837 N.E.2d 965. On transfer, the Court agreed that dismissal for failure to state a claim under Trial Rule 12(B)(6) was inappropriate, but did so on much narrower procedural grounds. The court reasoned as follows:

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 BH. First, Indiana courts have authority to determine "whether to place a child with a person other than the natural parent," 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, cultural, and biological considerations that significantly benefit the child and serve the child's best interests." As such, Indiana trial courts are accorded deference in their determinations as to children's best interests in these cireumstances. 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.

King v. S.B., 837 N.E.2d at 967 (some citations omitted).

Justice Dickson dissented, raising a number of concerns related to the majority's holding, which he characterized as "permit[ting] 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." Id. at 967. Justice Dickson asserted that permitting such an action disregards Indiana's adoption laws, particularly the statutory requirement of maternal consent to an adoption. Id. at 967. Additionally, Justice Dickson noted that

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." In all other cases, an adoption operates to divest the child's parents of all rights with respect to the child. In addition, same-sex marriages are prohibited in Indiana. Even if King and [Benham] had not separated but were continuing to live together as same-sex domestic partners, it is my view that King could not 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. If 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.

Id. at 968-69 (footnote and citations omitted, emphasis in original). Justice Dick son also expressed concerns that the majority's holding would "open a veritable Pandora's Box of troublesome questions regarding" who might be permitted to seek parental rights notwithstanding opposition by the child's biological parent, and opined that extending such rights to only former same-sex partners "would raise grave questions" under article 1, section 23 of the Indiana Constitution. Id. at 969.

Finally, Justice Dickson expressed his belief that the majority's decision was an inappropriate extension of the common law. Specifically, he asserted that "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." Id. at 970. He further contended that "[the common law should not, in my opinion, be used to provide nonstatu-tory 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." Id. at 971. In support of this assertion, Justice Dickson cited Indiana's statutory prohibition against same-sex marriage, as well as the General Assembly's adoption of a resolution calling for a constitutional amendment prohibiting same-sex marriage.

The majority, however, "[did] not deem [itself] to have decided the various legal issues raised by the dissent." Id. at 967. In a separate concurrence, then-Chief Justice Shepard agreed, noting that he viewed the Court's ruling as "far more modest" than Justice Dickson suggested. Id.

Since King, the status of the law surrounding a lesbian partner's right, if any, to enjoy the rights of a legal parent of a child born to her partner under the circumstances presented here remains uncertain. When this court decided In re A.B., we solicited guidance from the General Assembly on this issue. In the years that have passed since then, none has been forthcoming. The existing statutory framework does not contemplate the increased use of assisted reproductive technologies. Accordingly, it provides no guidance in situations where an intended parent lacks a genetic connection to the child. That deficiency is exacerbated by the growing recognition of less traditional family structures. Our system of government entrusts the General Assembly, not the courts, to fashion a framework for deciding matters as tethered to social mores and sensibilities as this subject is. We feel the vacuum of such guidance even more acutely now than we did eight years ago, when King was decided. Indeed, what began as a trickle is rapidly becoming a torrent, and the number of children whose lives are impacted by rules that have yet to be written only increases with the passage of time. They, and we, would welcome a legislative roadmap to help navigate the novel legal landscape in which we have arrived.

Until that happens, however, we must do the best we can to resolve the issues that come before us. In the present case, what little guidance there is comes in the form of a reversal of this court's opinion in In re A.B. In that case, we held that when two women in a domestic partnership agree to join together in raising a child conceived by artificial insemination of one of the partners with donor semen, both women are the legal parents of the resulting child. Our Supreme Court, however, granted transfer and vacated that opinion in full. Although the Court did not expressly disapprove of this court's holding in In re A.B., we believe its decision to vacate our opinion and decide the case on a much narrower procedural basis amounts to the same thing; the Court's discomfort with the breadth of our holding bespeaks its disapproval. Therefore, we decline to reach the same result here. In the absence of a legislative directive, if full parental rights are to be recognized in a former same-sex partner under the circumstances presented here, that recognition must come from our Supreme Court.

Because the facts of King v. S.B. are directly on point, we are unpersuaded by Partner's attempts to analogize Tirey v. Tirey, 806 N.E.2d 360 (Ind.Ct.App.2004), trans. denied, and Levin v. Levin, 645 N.E.2d 601 (Ind.1994). In Tirey, this court held that a man who, during dissolution proceedings, requested the entry of a support order for a child he knew was not biologically his was bound by that agreement and could not later escape his support obligation on the basis that he was not the child's father. There are a number of obvious distinctions between the facts of this ease and those in Tirey. Specifically, Tirey dealt only with a support obligation; the court did not purport to bestow full parental rights on the support obligor. Moreover, the court in Tirey relied on dissolution statutes that are obviously inapplicable to the present case because the Mother and Partner were not married, and are indeed prohibited from marrying under Indiana law. Finally, and we think most importantly, to the extent Mother and Partner were at one point in agreement with respect to Partner's relationship with Child, that agreement was apparently never reduced to writing, much less entered as part of a court order. In Tirey, it was the petitioner's agreement to the entry of a support order that prevented him from later denying his support obligation.

In Levin v. Levin, our Supreme Court held that a husband who knowingly and voluntarily consents to the artificial insemination of his wife with donor semen is equitably estopped from later denying his support obligation to the resulting child. Partner concedes that Levin is distinguishable from the case before us, but nevertheless argues that "the holding should be equally applicable to the biological parent who wants to prevent the nonbiological parent from continuing her role as parent to the child in all ways, including parenting time and financial support." Appellant's Brief at 19. In In re A.B., this court agreed, and relied heavily on Levin in reaching its conclusion. 818 N.E.2d at 131 (reasoning that "[wlhile Levin v. Levin was certainly presented in the context of a marriage" its analysis "does not expressly hinge on the marital status of the parties and is equally applicable to the case at hand"). But, as we explained above, it appears to us that our Supreme Court tacitly disapproved of our interpretation of Levin. In light of King v. S.B., if the holding in Levin is to be extended to the cireumstances before us, we believe it is for our Supreme Court to do so. For all of these reasons, we cannot conclude that the trial court erred in declining to enforce the agreement between Mother and Partner that Partner would be Child's parent as well.

2.

Next, Partner argues that the trial court erred by applying the wrong legal standard to her request for joint custody. We disagree.

As an initial matter, although it is clear that a trial court has the authority to award custody of a child to a nonpar-ent under certain cireumstances, it should be noted that another panel has expressed the view that Ind.Code Ann. § 31-17-2-3 (West, Westlaw current with all 2013 legislation), which allows a nonparent to file a petition seeking a determination of child custody, "does not contemplate the creation of a shared custody arrangement between a parent and a nonparent[.]" M.S. v. C.S., 938 N.E.2d at 283 (emphasis supplied). But even assuming that the trial court's authority to award custody to a nonparent includes a power to require a parent to share joint custody with a non-parent, the trial court applied the correct legal standard. Our Supreme Court has set forth the standard applicable to such third-party requests for custody as follows:

before placing 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. The trial court must be convinced that placement with a person other than the natural parent represents a substantial and significant advantage to the child. . .. The issue is not merely the "fault" of the natural parent. Rather, it is whether the important and strong presumption that a child's interests are best served by placement with the natural parent is clearly and con-vinceingly overcome by evidence proving that the child's best interests are substantially and significantly served by placement with another person. This determination falls within the sound discretion of our trial courts, and their judgments must be afforded deferential review. A generalized finding that a placement other than with the natural parent is in a child's best interests, however, will not be adequate to support such determination, and detailed and specific findings are required.

In re Guardianship of B.H., 770 N.E.2d 283 (Ind.2002) (citations omitted).

In its order, the trial court cited In re Guardianship of B.H., 770 N.E.2d 283 and articulated the standard set forth therein. Accordingly, we cannot conclude that the trial court applied an incorrect legal standard. Partner makes no argument that the trial court's ultimate conclusion that Partner failed to rebut the presumption in favor of Mother as the natural parent is clearly erroneous. We therefore affirm the trial court's denial of Partner's request for joint custody.

3.

Finally, Partner argues that the trial court erred in concluding that she lacked standing to seek visitation with Child. This court first addressed the issue of whether visitation may be awarded to an unrelated third party in Collins v. Gilbreath, 403 N.E.2d 921 (Ind.Ct.App.1980). In that case, the trial court granted a stepfather visitation with his stepdaughters following the death of his wife, the girls' mother. This court affirmed the visitation order, reasoning as follows:

When the judicial system becomes involved in family matters concerning relationships between parent and child, simplistic analysis and the strict application of absolute legal principles should be avoided. The mere protest of a parent who asserts that visitation by another person would somehow harm his or her child should not be enough to deny visitation in all cases. This is especially true where the third party has cared for a child as his or her own. As in custody disputes, the well-being of the child must be paramount. Although the legal right of a parent to custody of a child is superior to the legal right of all others, this right is not absolute. As one court appropriately observed, a parent's right of custody is not akin to a property right, but is more in the nature of a trust which may be subject to the well-being of the child as perceived by the courts of this state.

Id. at 923 (citations omitted). The court went on to note, however, that its holding was not intended to "diminish the rights of a natural parent concerning his or her minor children" or to "open the door and permit the granting of visitation rights to a myriad of unrelated third persons, including grandparents, who happen to feel affection for a child." Id. at 923-24 (footnote omitted). The court explicitly limited its holding "to the type of factual situation presented by this case, e., where the party seeking visitation has acted in a custodial and parental capacity." Id. at 924.

In Tinsley v. Plummer, 519 N.E.2d 752, 754 (Ind.Ct.App.1988), this court noted that "the courts, rather than the legislature, recognized rights of visitation in third parties." The court went on to conclude, however, that when it enacted the Grandparent Visitation Act without altering the visitation rights of other nonparents as established by this court, "the legislature tacitly approved Collins and left the development of the law on the rights of parties, other than parents and grandparents, to the sound discretion of the courts." Id.

For several years following Collings, stepparents were granted visitation upon establishing the existence of a custodial and parental relationship and that visitation is in the best interests of the child. See Francis v. Francis, 654 N.E.2d 4 (Ind.Ct.App.1995); Caban v. Healey, 634 N.E.2d 540 (Ind.Ct.App.1994); In re Custody of Banning, 541 N.E.2d 283 (Ind.Ct.App.1989). In Schaffer v. Schaffer, 884 N.E.2d 423 (Ind.Ct.App.2008), this court altered the standard applicable to petitions for third-party visitation to give special weight to a parent's decision concerning visitation, in accordance with Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). Specifically, this court concluded that in considering a stepparent's request for visitation, the trial court must also consider the presumption that a fit parent acts in his or her child's best interests, the special weight afforded a fit parent's decision to deny visitation, and whether the parent has denied or simply limited visitation. Schaffer v. Schaffer, 884 N.E.2d 423.

This court's early third-party visitation cases did not hold, however, that standing to seek such visitation was limited to stepparents. See, e.g., Krieg v. Glassburn, 419 N.E.2d 1015 (Ind.Ct.App.1981) (holding, prior to the passage of the Grandparent Visitation Act, that grandparents may be granted third-party visitation), superseded by statute as recognized in In re Visitation of M.L.B., 983 N.E.2d 583 (Ind.2013). Moreover, when third-party visitation was denied, it was not done solely on the basis that the person seeking visitation was not a stepparent. Wolgamott v. Lanham, 654 N.E.2d 890 (Ind.Ct.App.1995) (affirming trial court's denial of mother's ex-boyfriend's petition to intervene in paternity action based on purported interest in visitation with child because he made no allegation that he was the child's stepparent or had even been part of the mother's household); Tinsley v. Plummer, 519 N.E.2d 752 (reversing award of visitation to great-aunt and great-uncle because they saw the child only five times a year at family gatherings, and therefore failed to establish a custodial and parental relationship).

Our Supreme Court substantially narrowed the seope of the right to seek third-party visitation in Worrell v. Elkhart Cnty. Office of Family & Children, 704 N.E.2d 1027 (Ind.1998). In Worrell, our Supreme Court addressed a petition for third-party visitation filed by former foster parents. In holding that foster parents lack standing to seek third-party visitation, the Court noted that in some cases, this court had "declined to extend visitation rights to third parties who are not step-parents." Id. at 1029 (citing Wolgamott v. Lanham, 654 N.E.2d 890; Tinsley v. Plummer, 519 N.E.2d 752). The Court expressed agreement "with the prior holdings limiting standing to step-parents" and held "that the right does not extend to foster parents." Id. In support of its holding, the Court reasoned that "[ulnlike parent and step-parent relationships, foster relationships are designed to be temporary, providing a safe, nurturing environment until the child can either be returned to the natural parents or adopted by new ones." Id. (quotation omitted). The Court noted further that such relationships are contractual in nature and that foster parents are reimbursed by the State, and further noted that children are often placed in a number of different foster homes before being reunited with their natural parents or adopted. Consequently, "if each of the potential profusion of foster parents had standing because he or she had custody of the child at some point, the natural or adoptive parents might be forced to defend visitation claims against a legion of petitioners." Id.

This brings us to our Supreme Court's decision in King v. S.B., 837 N.E.2d 965. As we explained above, in that case, same-sex domestic partners King and Benham chose to have a child together during the course of their relationship. Benham was inseminated with donor sperm and gave birth to A.B., and King functioned as A.B.'s second parent. When Benham unilaterally terminated King's visitation and began rejecting support payments, King filed a lawsuit seeking to be recognized as A.B.'s legal parent or, at a minimum, continued visitation with A.B. This court concluded that under these cireumstances, Benham and King should both be considered A.B.'s legal parents. Although our Supreme Court vacated our opinion in In re A.B., it reversed the trial court's dismissal of King's petition. The Court's conclusion that King's petition survived a TR. 12(B)(6) motion to dismiss for failure to state a claim necessarily indicates that at least some of the relief sought was not barred as a matter of law. King v. S.B., 837 N.E.2d at 967 (noting that "(alt least some of the relief sought in this case falls within that which [In re Guardianship of B.H., 770 N.E.2d 283] grants persons other than natural parents to seek and Indiana trial courts, where appropriate, discretion to award"). Although the Court did not elaborate on which of King's claims might be legally viable, the minimum relief she sought was continued visitation with the child.

This court has made note of the uncertainty, in light of King v. S.B., concerning whether former same-sex partners might fall within the class of nonparents with standing to seek third-party visitation, but we have not directly confronted the issue until today. See Kitchen v. Kitchen, 953 N.E.2d at 646, 649 (Ind.Ct.App.2011) (noting that King and M.S. v. C.S. "involved the unique situation of visitation rights of a former same-sex partner to a child born during the relationship[,]" and, as such, those cases were not particularly helpful in considering whether a great-aunt and great-uncle had standing to seek visitation); M.S. v. C.S., 938 N.E.2d at 286 (noting that King v. S.B. "casts doubt on the conclusion that third-party visitation is strictly limited to former stepparents").

At the outset, we recognize that there are good reasons to limit the class of individuals with standing to seek third-party visitation. After all, parental rights are of constitutional dimension, and it is presumed that a fit parent acts in the child's best interests in making decisions concerning visitation with third parties. See Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). On the other hand, by recognizing a right to third-party visitation, this court has acknowledged that a child's interest in maintaining relationships with those who have acted in a parental capacity will sometimes trump a natural parent's right to direct the child's upbringing. Moreover, although the reasons our Supreme Court articulated in Worrell for denying standing to former foster parents are beyond dispute, the rationale for limiting third-party visitation to stepparents alone is less clear. It appears to us that the Court viewed a stepparent relationship as a strong indicator that a custodial and parental relationship exists. But surely custodial and parental relationships may exist with third parties other than stepparents. Indeed, the situation presented here is characterized by even stronger indicia of a custodial and parental relationship. This is so because the parties originally intended for the biological mother's partner to fulfill the role of the child's second parent and actively encouraged the development of a parental bond between the partner and the child.

We believe the Court's decision in King v. S.B. signaled its amenability to expanding the class of petitioners with standing to seek third-party visitation to include individuals situated similarly to Partner. Thus, in the particular factual cireum-stances of this case, a partner who did not give birth to the child has standing to seek visitation with the child. This is not to say that a former domestic partner is automatically entitled to visitation in these ciream-stances-it must still be established that visitation is in the child's best interests. We therefore reverse the trial court's conclusion that Partner lacked standing to seek visitation with Child and remand with instructions to reconsider Partner's request for visitation under the standard set forth in our third-party visitation cases.

Affirmed in part, reversed in part, and remanded with instructions.

BAKER, J., and VAIDIK, J., concur.

      . We held oral argument in this matter on September 24, 2013. We commend counsel on the quality of their written and oral advocacy.

      . Following oral argument in this case, Partner filed a Notice of Additional Authorities Supporting Appellant's Position. Ind. Appellate Rule 48 provides as follows:
      When pertinent and significant authorities come to the attention of a party after the party's brief or Petition has been filed, or after oral argument but before decision, a party may promptly file with the Clerk a notice of those authorities setting forth the citations. There shall be a reference either to the page of the brief or to a point argued orally to which the citations pertain, with a parenthetical or a single sentence explaining the authority.
      (emphasis added). Far from simply alerting this court to the existence of additional authority, Partner's Notice of Additional Authority is more in the nature of an addendum to her Appellant's Brief, In it, Partner quotes long passages from a number of cases and provides arguments in support of her position. Accordingly, Partner's Notice of Additional Authority does not comply with Ind. App. R. 48. Moreover, Partner raises a federal constitutional argument for the first time in her Notice of Additional Authorities. Because she failed to raise this argument in her Appellant's Brief, it is waived. See Chupp v. State, 830 N.E.2d 119 (Ind.Ct.App.2005).

      . Mother also argues that Partner has waived any argument that she acquired parental rights by virtue of the agreement between Mother and Partner by failing to raise this argument before the trial court. We disagree. Although it appears Partner did not use the phrase "enforceable agreement", the entire thrust of her argument below was that she should be recognized as Child's parent based on the parties' agreement and intent that she would hold that status. We therefore conclude that Partner has preserved this question for appeal.

      . In the omitted footnote, Justice Dickson expressed his disagreement with the holdings of this court that same-sex domestic partners are permitted to adopt the biological children of their partners under the stepparent adoption statutes notwithstanding the fact that they are not married.

      . Mother argues that "this Court has already held that same-sex partners cannot attempt to circumvent the adoption laws by entering into a co-parenting agreement." Appellee's Brief at 15. In support of this argument, Mother cites M.S. v. C.S., 938 N.E.2d 278 (Ind.Ct.App.2010). But in M.S. v. C.S., this court held that a biological mother's former same-sex partner had waived any claim that she was the child's legal parent by failing to raise the issue before the trial court. Thus, M.S. v. C.S. is more properly understood as standing for the proposition that a parent and a third party who is not a legal parent may not circumvent the adoption laws by entering into a co-parenting agreement. Application of the waiver rule obviated the need for the court to address the question at issue in this appeal-whether a same-sex domestic partner may claim the rights of a parent.

      . Partner does, however, argue that the trial court's conclusion that she was not a de facto custodian for the purposes of Ind.Code Ann. § 31-9-2-35.5 (West, Westlaw current with all 2013 legislation) was not supported by the evidence. We need not address this argument. Even assuming Partner is a de facto custodian, she was still required to overcome the presumption in favor of Mother as the natural parent. See In re Paternity of TP., 920 N.E.2d 726, 731 (Ind.Ct.App.2010) (holding that de facto custodians are "still required to overcome the natural parent presumption in order to gain custody"). Because the trial court applied the correct standard and concluded that Partner had not overcome the presumption in favor of the natural parent, any error in its conclusion that Partner was not a de facto custodian would be harmless.

      . In M.S. v. C.S., this court assumed arguendo that a former same-sex partner had standing to seek visitation and affirmed the trial court's denial of visitation based on best interests of the child. Mother asks us to reach the same conclusion here and affirm the trial court's denial of visitation based on an application of the best-interest standard. Even assuming that a finding that visitation is not in Child's best interest might be supported by the evidence, it is clear that the trial court made no such finding in this case. Rather, the trial court expressed its belief that it was bound, as a matter of law, to deny Partner's request for visitation, irrespective of Child's best interests, because Partner is not a parent, grandparent, or stepparent. Accordingly, we decline to affirm the trial court's denial of visitation on the basis of a best-interests analysis that never occurred.


source: Caselaw Access Project

author: RILEY, Judge.

license: Public Domain

text:
    Heather HERREN, Appellant-Respondent, v. Jerry DISHMAN, Appellee-Petitioner.
    No. 18A04-1304-SC-162.
    Court of Appeals of Indiana.
    Nov. 5, 2013.

      Anthony J. Oliveira, The Law Office of B. Joseph Davis, P.C., Muncie, IN, Attorney for Appellant.
    Brandon E. Murphy, Cannon & Bruns, Muncie, IN, Attorney for Appellee.
   OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Appellant-Respondent, Heather Anne Herren (Herren), appeals the small claims court's Order of Replevin granting canine ownership to Appellee-Plaintiff, Jerry Dishman, Jr. (Dishman)..

We affirm.

ISSUE

Herren raises one issue on appeal, which we restate as: Whether the small claims court erred by failing to confer full faith and credit to an out-of-state protection order and granting canine ownership to Dishman.

FACTS AND PROCEDURAL HISTORY

At the center of this case is a dog named Sofie (Sofie), a black and white Chihuahua-Rat Terrier mix breed. In the latter part of 2010, Dishman acquired Sofie from his former girlfriend. In March of 2011, Herren and Dishman became acquainted through the Internet. Three months later, in June of 2011, Herren moved into Dish-man's apartment in Cowan, Indiana. In September 2011, Dishman was arrested, and Herren moved out, taking Sofie with her. Dishman was incarcerated for one month, during which time Herren kept Sofie. When Dishman was released, the Sheriffs Department, at Dishman's request, contacted Herren and directed her to return Sofie to Dishman; Herren complied. Shortly thereafter, Herren and Dishman reconciled their relationship.

Herren and Dishman lived together for another year, at which point Herren moved to North Carolina. Dishman remained in Indiana until Herren secured employment and a residence that permitted pets. In October 2012, Dishman-along with Sofie-relocated to North Carolina to be with Herren. Less than two months following Dishman's move to North Carolina, the relationship ended. On November 19, 2012, Dishman took So-fie and moved back to Indiana.

A dispute over Sofie's custody ensued. On December 5, 2012, more than two weeks after Dishman moved out, Herren filed for a Domestic Violence Protective Order (Protective Order) in the District Court of Chowan County, North Carolina (North Carolina Court) because Dishman had threatened Herren that he would return to North Carolina "to 'gut' [her] and throw her in a canal." (Appellant's App. p. 31). Dishman also "threaten[ed] to slit [Sofie's] throat." (Appellant's App. p. 31). On December 31, 2012, the North Carolina Court concluded that is a danger of serious and immediate injury" and granted the Protective Order. (Appellant's App. p. 32). The Protective Order, which is in effect until December 31, 2013, "granted the care, custody, and control of any animal owned, possessed, kept, or held as a pet by either party or minor child residing in the household" to Herren. (Appellant's App. p. 32). Herren thereafter travelled to Indiana and presented the Protective Order to the Muncie Police Department. The police retrieved Sofie from Dishman's apartment, and Herren transported her back to North Carolina.

On January 11, 2013, Dishman filed a Complaint for Replevin with the small claims court in Delaware County, Indiana. Dishman claimed that Herren had wrongfully taken his property and demanded possession of Sofie, as well as damages in the amount of $1,000. On February 8, 2013, Herren filed a motion to dismiss, asserting that the North Carolina Court had already awarded her custody of Sofie. The small claims court summarily denied this motion.

On Valentine's Day of 2013, the small elaims court conducted a bench trial; Her-ren represented herself and Dishman was represented by counsel. Herren and Dish-man both testified that they were entitled to Sofie as her rightful owner. Herren asserted that in August 2011-just before the couple's first break-up-Dishman had agreed that Herren could keep Sofie, which Dishman denied, stating he would never have given Sofie away. During her case-in-chief, Herren attempted to present "the whole case file" from the North Carolina Court as evidence that she had received "legal custody of the dog." (Transcript pp. 28-29). The small claims court denied admission of the file, agreeing with Dishman that it did not "matter[ ] whether there was a protective order in North Carolina." (Tr. p. 29). The same day, the small claims court issued an Order of Re-plevin, declaring Dishman to be Sofie's owner.

Herren now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

I. Standard of Review

"Judgments in small claims actions are 'subject to review as prescribed by relevant Indiana rules and statutes." Eagle Aircraft, Inc. v. Trojnar, 983 N.E.2d 648, 657 (Ind.Ct.App.2013) (quoting Ind. Small Claims Rule 11(A)). Indiana has specific rules for small claims cases, but the Indiana Rules of Trial Procedure will generally apply "unless the particular rule in question is inconsistent with something in the small claims rules." Bowman v. Kitchel, 644 N.E.2d 878, 879 (Ind.1995). In accordance with Trial Rule 52(A), the findings or judgments rendered in a bench trial must be upheld unless clearly erroneous. Deference to the small claims court is essential as the "trials are designed to speedily dispense justice by applying substantive law between the parties in an informal setting." Vance v. Lozano, 981 N.E.2d 554, 557 (Ind.Ct.App.2012); see Ind.Code § 33-28-3-5(d). This court considers the evidence and related inferences in a light most favorable to the judgment, presuming that the small claims court applied the law correctly and giving "due regard to the trial court's opportunity to judge the credibility of the witnesses." Eagle Aircraft, Inc., 983 N.E.2d at 657. "However, this deferential standard does not apply to the substantive rules of law, which are reviewed de novo just as they are in appeals from a court of general jurisdiction." Id. (internal quotation marks omitted). The burden of proof in a small claims civil suit is the same as it would be had the case been filed in a general trial court. Bonecutter v. Discover Bank, 953 N.E.2d 1165, 1169 (Ind.Ct.App.2011), trans. denied.

II. Full Faith and Credit

Herren claims that the small claims court erred in its judgment "because state and federal statute[s] require that the ... North Carolina Protective Order giving custody of the dog to Herren be conferred full faith and credit in Indiana." (Appellant's Br. p. 7). Under the United States Constitution, "Full Faith and Credit shall be given in each State to the Public Acts, Records and Judicial Proceedings of every other State." U.S. Const. art. IV, § 1. A state court's judgment "should be afforded the same credit, validity and effect in every other court of the United States which the judgment had in the state where it was pronounced." In re L.C., 659 N.E.2d 593, 597 (Ind.Ct.App.1995), trans. denied; cert. denied, 521 U.S. 1122, 117 S.Ct. 2515, 138 L.Ed.2d 1017 (1997).

The principal of full faith and credit has been codified in Indiana, requiring that authenticated "[rJecords and judicial proceedings ... shall have full faith and credit given to them in any court in Indiana as by law or usage they have in the courts in which they originated." I.C. § 34-39-4-3(b). Additionally, Indiana's Civil Protection Order Act (CPOA) specifies that full faith and eredit must be conferred upon an out-of-state protection order, so long as the protection order "is facially valid." IC. § 34-26-5-17(c). Within her overall argument that the small claims court should have conferred full faith and credit to the Protective Order, Herren presents three sub-arguments that the small claims court erred: (A) by denying her motion to dismiss Dishman's Complaint for Replevin; (B) by excluding the North Carolina Court file from evidence; and (C) by failing to examine the facial validity of the Protective Order. In general opposition to Her-ren's specific claims, Dishman asserts that the Protective Order is not a final judgment entitled to full faith and credit.

A. Denial of Herren's Motion to Dismiss

Herren first claims that the small claims court erred because giving full faith and credit to the Protective Order would demand granting her motion to dismiss Dishman's complaint. While the small claims court did not explain its reason for denying Herren's motion to dismiss, Dish-man contends that it properly did so based on Herren's failure to sign the motion. Trial Rule 11(A) provides a trial court with discretion to strike an unsigned pleading or motion "as sham and false." Ind. Trial Rule 11(A). In this case, Herren typed-rather than signed-her name below the contents of the motion. The Indiana Supreme Court has previously concluded that the validity of a signature is not contingent upon signing with any "specific instrument." Johnson v. State, 622 N.E.2d 172, 174 (Ind.1993). Herren's typed name is therefore a sufficient signing to certify the veracity of her motion.

Dishman also asserts that the small claims court was correct to deny Herren's motion because Herren "did not state a legal basis for dismissal." (Appel-lee's Br. p. 5). Herren's motion expressed that dismissal is appropriate because "[the case was already heard in [the North Carolina Court]." (Appellant's App. p. 34). Although Herren's motion may not replicate the language of Trial Rule 12(b)(6), it is clear that this argument for dismissal is premised upon a failure to state a claim upon which relief may be granted. For dismissal motions of this type, our review is de novo, and we consider the complaint in the light most favorable to the non-moving party. Watson v. Auto Advisors, Inc., 822 N.E.2d 1017, 1023 (Ind.Ct.App.2005), trans. denied. Our supreme court has previously stated that, in small claims cases, "a motion to dismiss is appropriate if the 'brief statement of the claim' reveals that, as a matter of law, the plaintiff cannot prevail." Niksich v. Cotton, 810 N.E.2d 1003, 1006 (Ind.2004). In Herren's dismissal motion, she references the North Carolina Court documents as evidence that the issue of canine custody had already been resolved. Under Trial Rule 12(b)(6), if

matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in [Trial] Rule 56. In such case, all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by [Trial] Rule 56.

T.R. 12(b)(6). Because the small claims court did not explain its basis for denying Herren's motion or receive arguments for summary judgment, we presume that it excluded the matters extraneous to the pleadings and denied Herren's request for dismissal based solely on the face of Dish-man's complaint, which-if taken as true-presents a legally sufficient basis for relief. We therefore conclude that the small claims court did not err in denying Her-ren's motion to dismiss.

B. Exclusion of Evidence

Herren next claims that the small claims court erred by excluding the North Carolina Court documents. Specifically, she contends that the small claims court should not have rejected the evidence without first evaluating whether the Protective Order was facially valid-a due process requirement of full faith and ered-it. See I.C. § 34-26-5-17(b). A small elaims court has broad discretion in determining whether to admit or exclude evidence. Barnett v. State, 916 N.E.2d 280, 286 (Ind.Ct.App.2009), trans. denied. We will only reverse an admissibility decision for a "manifest abuse of the trial court's discretion resulting in the denial of a fair trial." Elrod v. Brooks, 910 N.E.2d 231, 233 (Ind.Ct.App.2009).

Dishman counter-argues that because Herren "failed to make an adequate offer of proof{,]" she has waived the right to challenge the evidentiary ruling. (Appellee's Br. p. 5). To preserve the challenge of a trial court's exclusion of evidence for appellate review, a party must, through an offer of proof, make "the substance of the evidence" known to the trial court, as well as identify the grounds for admissibility and relevancy of the testimony. Arhelger v. State, 714 N.E.2d 659, 664 (Ind.Ct.App.1999). An examination of our State's case law reveals that an offer of proof is necessary to preserve error when the excluded evidence is testimony. See Menaugh v. Bedford Belt Rwy. Co., 157 Ind. 20, 60 N.E. 694, 696 (1901); Taflinger Farm v. Uhl, 815 N.E.2d 1015, 1018 (Ind.Ct.App.2004); Bedree v. Bedree, 747 N.E.2d 1192, 1195-96 (Ind.Ct.App.2001), trans. denied.

This case is distinct because Herren sought to admit tangible court documents from another court proceeding, which-contrary to unconstrained and unpredictable witness testimony-the small claims court could have inspected to ascertain their substance. Furthermore, when Her-ren attempted to introduce the evidence, she presented her justification for its admission:

All the paperwork [Dishman] submitted which is the signed [sic] he submitted here. All the vet bills, everything else, and including, I think I already filed where with the restraining order they gave me legal custody of the dog because of everything that had happened, if that's okay, including that he'd been served, that he knew that the ownership of the dog was in question. Custody of the dog was in question, everything. I have it all.

(Tr. pp 28-29). Because Herren conveyed the substance of the evidence and proffered possible grounds for admission and relevance, we find Herren has not waived this issue.

Dishman also contends that the North Carolina Court evidence is not relevant. Evidence is relevant if it "tends[ ] to make the existence of any fact that is of consequence to the determination of the action more probable or less probable." Ind. Evidence Rule 401. More particularly, Dishman argues that the Protective Order does "not by its language apply to Sofie." (Appellee's Br. p. 8). Because the Protective Order grants Herren "the care, custody, and control of any animal owned, possessed, kept or held as a pet by either party or minor child residing in the household [,]" Dishman insists that Sofie is outside the seope of the Protective Order because he, as Sofie's owner, did not reside in the household at the time Herren filed for the Protective Order. (Appellee's Br. p. 8 (Appellee's emphasis)).

We disagree with Dishman's interpretation. The descriptor "residing in the household" also applies to Herren, as a party, regardless of ownership of Sofie. This court established long ago that a person may have the right to possess a chattel "without having the ultimate legal title to the property." Whitehead v. Coyle, 1 Ind.App. 450, 27 N.E. 716, 717 (1891). Therefore, even if-as the small claims court found-Dishman is the legal owner of So-fie, Herren may still have the right to possess the dog under the terms of the Protective Order. Whether the Protective Order is entitled to full faith and credit in Indiana is dependent upon a finding of its validity, and the North Carolina Court documents are material to this assessment. We thus find that such evidence is relevant.

Notwithstanding our finding that the small claims court erred in excluding the evidence, we will uphold its decision absent a manifest abuse of discretion resulting in the denial of a fair trial. See Elrod, 910 N.E.2d at 233. It is an abuse of discretion if the small claims court's decision "is clearly against the logic and effect of the facts and cireumstances before the court." Williams v. State, 782 N.E.2d 1039, 1045 (Ind.Ct.App.2003), trans. denied. In this case, the small claims court rejected Her-ren's evidence without assessing the facial validity of the Protective Order as required by Indiana Code section 34-26-5-17. In so doing, the small claims court impeded Herren's due process rights. See Morton v. Ivacic, 898 N.E.2d 1196, 1199 (Ind.2008) (affirming tenet of due process that the "opportunity to be heard" consists of the "opportunity to present every available defense"). Therefore, we find it was a manifest abuse of discretion for the small claims court to reject the evidence without first evaluating the Protective Order's facial validity.

C. Facial Validity

Herren's final claim is that the small claims court erred by discarding the authority of the Protective Order "without any examination into whether it was facially valid." (Appellant's Br. p. 10). Herren argues that, at a minimum, if the small claims court "wish[ed] to disregard the full faith and credit it was required to give the [Protective] [O]rder under state and federal law, it should have undertaken an investigation into the adequacy of due process." (Appellant's Br. p. 10). The CPOA specifies that full faith and eredit must be conferred upon a protection order issued by a court of another state, so long as the protection order "is facially valid." I.C. § 34-26-5-17(c). "A facially valid foreign protection order is prima facie evidence of its validity." I.C. § 34-26-5-17(b). This court will find that a foreign protection order is facially valid if it:

(1) identifies the protected person and the respondent;
(2) is currently in effect;
(3) was issued by a state or tribal court with jurisdiction over the:
(A) parties; and
(B) subject matter; under the law of the issuing state or Indian tribe; and
(4) was issued after a respondent was given reasonable notice and an opportunity to be heard sufficient to protect the respondent's right to due process. In the case of an ex parte order, notice and opportunity to be heard must be provided within the time required by state or tribal law and within a reasonable time after the order is issued sufficient to protect the respondent's due process rights.

I.C. § 34-26-5-17(a). We note that there is no precedent in Indiana to guide our review of the mandate that out-of-state protection orders receive full faith and credit. Based on the plain and ordinary meaning of the CPOA, we must assess whether the Protective Order is facially valid in order to determine whether it is entitled to full faith and credit.

The first 'two elements of Indiana Code section 34-26-5-17(a) are clearly satisfied because the Protective Order identifies Herren and Dishman as the protected individual and respondent, respectively. Also, the Protective Order expires on December 31, 2018, so it was in effect at the time of the bench trial and has remained in force throughout this appeal. As to the third element, subject-matter jurisdiction exists by virtue of a state law endowing the North Carolina Court with "original jurisdiction over ... [alny action for a domestic violence protective order." N.C. Gen.Stat. § 50B-2. For the North Carolina Court to have personal jurisdiction over a non-resident-as Dish-man was at the time the Protective Order was issued-there must be authority under the State's long-arm jurisdiction statute, as well as sufficient minimum contacts between Dishman and North Carolina. Wells Fargo Bank, N.A. v. Affiliated FM Ins. Co., 193 N.C.App. 35, 666 S.E.2d 774, 777 (2008). North Carolina's long-arm statute confers personal jurisdiction over an individual "[in any action claiming injury to person or property ... within or without this State arising out of an act or omission within this State by the defendant." N.C. Gen.Stat. § 1-75.4(3). Here, the issuance of the Protective Order arose "directly out of [Dishman's] activities within and to the [SJtate of North Carolina." Fox v. Gibson, 176 N.C.App. 554, 626 S.E.2d 841, 844 (2006). While living in North Carolina, Dishman threatened Her-ren's life, and when he left for Indiana, Dishman "forcibly removed" Sofie from Herren's house. (Appellant's App. p. 16). "Due process requires that the defendant have minimum contacts with the state in order to satisfy traditional notions of fair play and substantial justice." Cooper v. Shealy, 140 N.C.App. 729, 537 S.E.2d 854, 857 (2000) (quoting Int'l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945)). In this case, Dishman lived with Herren in North Carolina for approximately two months, and, even after returning to Indiana, Dishman communicated numerous threats to Herren. See Fox, 626 S.E.2d at 845 (finding non-resident's "telephone conversations, e-mails, and sexual relations" with North Carolina resident created sufficient minimum contacts). Furthermore, "North Carolina has a strong interest in protecting its citizens from local injury caused by" non-residents. Cooper, 537 S.E.2d at 858. We find the North Carolina Court had personal and subject matter jurisdiction.

In considering the final element of facial validity-whether Dishman had reasonable notice and an opportunity to be heard-we look to the North Carolina Court doeu-ments. On December 5, 2012, Herren filed for an order of protection, and the North Carolina Court immediately issued an ex parte order, effective for six days. Dishman was not served with notice of this order or a hearing date. However, on December 11, 2012, a subsequent ex parte protective order was issued, to be in effect until a hearing on December 20, 2012. With this order, the North Carolina Court served Dishman with a summons, via certified mail to his Muncie address, informing him that an ex parte order had been granted, of the date and time of the hearing, and of his opportunity to file an answer to Herren's complaint. Dishman did not respond or attend the hearing. When the Protective Order was issued on December 31, 2012, Dishman was again served with notice and a copy of the Protective Order. Because we find that the North Carolina Court afforded Dishman the requisite due process prior to entering its final order, the Protective Order is facially valid and is entitled to full faith and credit.

D. Finality of Judgment

The purpose of the full faith and credit principle is to remedy the risk, inevitable in a nation of states each having an independent judicial system, that several states "will exercise their power over the same case or controversy, with the uncertainty, confusion, and delay that necessarily accompany relitigation of the same issue." Underwriters Nat'l Assurance Co. v. N.C. Life & Accident & Health Ins. Guar. Ass'n, 455 U.S. 691, 703-04, 102 S.Ct. 1357, 71 L.Ed.2d 558 (1982). As such, it is generally required that a judgment be a "final judgment" in order to merit full faith and credit. Lee v. DeShaney, 457 N.E.2d 604, 607 (Ind.Ct.App.1983).

Dishman claims that the Protec tive Order "is temporary and inherently modifiable{[,] ... [and] clearly not a final judgment over ownership of the property." (Appellee's Br. p. 7 (internal citation omitted)). He reasons that the doctrine of comity-rather than full faith and eredit-is applicable in this case. Under the comity doctrine, an Indiana court has the discretion to dismiss a case as a matter of courtesy and convenience when there are pending proceedings in an out-of-state court, but it is not constitutionally obligated to do so. MH Equity Managing Member, LLC v. Sands, 938 N.E.2d 750, 756 (Ind.Ct.App.2010), trans. denied. Dishman cites cases such as Ventura County v. Neice, 434 N.E.2d 907 (Ind.Ct.App.1982), and Kniffen v. Courtney, 148 Ind.App. 358, 266 N.E.2d 72, 75 (1971), to argue that the judgment is not final because an Indiana court may modify the Protective Order for "good cause shown." (Appellee's Br. p. 7). We find his reliance on these cases-which are subject to specific statutes for child custody and support-is misguided. Not only is Dishman's assertion that any court other than the North Carolina Court has the power to modify the Protective Order unfounded, the case at hand is governed by its own unique statute, which specifies that protection orders must receive full faith and credit and does not require that an order be final or unmodifiable.

Dishman also contends that the Protective Order is not a final judgment because it is not res judicata. He maintains that, because "property can be temporarily awarded without regard to ownership[,]" the issue of Sofie's ownership was not previously Htigated, and thus the small claims court was not required to confer full faith and credit. (Appellee's Br. p. 8). To succeed in a replevin action, a plaintiff must be "entitled to the immediate possession of the property in controversy." Whitehead, 27 N.E. at 717. The small claims court granted an Order of Replevin in Dishman's favor, thereby affirming his immediate right to possess Sofie. We find that this is "mutually inconsistent" with a facially valid Protective Order granting custody to Herren and "is precisely the situation the Full Faith and Credit Clause was designed to prevent." Underwriters Nat'l Assurance Co., 455 U.S. at 715, 102 S.Ct. 1357. We have already established that the Protective Order is facially valid. Therefore, despite Dishman's comity or res judicata arguments, the Protective Order is entitled to full faith and credit by virtue of State law and must be enforced to the same extent that it would have been in North Carolina. See Gardner v. Pierce, 838 N.E.2d 546, 551 (Ind.Ct.App.2005).

III. Timing of the Protective Order

Although we find that the Protective Order is entitled to enforcement in this State according to its terms, we do not alter the small claims court's factual determination that Dishman never gave the dog away to Herren, thus rendering Dishman the dog's owner. We agree with Dishman that the Protective Order's award of custody does not negate his status as Sofie's owner. Instead, we discern the pivotal issue to be whether, because the Protective Order went into effect more than one month after Dishman and Sofie returned to Indiana, Sofie could still have been considered "owned, possessed, kept or held as a pet by" Herren at that time. (Appellant's App. p. 32).

Herren does not dispute the small claims court's finding that Dishman never gave ownership of Sofie to Herren. Also, beyond her general claim that she was entitled to Sofie under the authority of the Protective Order, Herren has not provided further argument to justify her right to the custody of a dog that was not in her possession for more than a month prior to the date the Protective Order was issued. Accordingly, under the terms of the Protective Order, Herren is not entitled to possession of Sofie.

CONCLUSION

Based on the foregoing, we conclude that the small claims court clearly erred by failing to accord full faith and eredit to the out-of-state Protective Order, but because Herren neither owned nor possessed Sofie at the time of the Protective Order's issuance, Herren is not entitled to custody of the dog.

Affirmed.

ROBB, C.J. and KIRSCH, J. concur.

      . On August 12, 2013, Dishman filed a Motion to Dismiss and/or Strike Portions of Appellant's Appendix with this court. On September 17, 2013, the motions panel denied Dishman's motion to dismiss and ordered that his motion to strike be held in abeyance for ruling by the writing panel. By a separate order issued on today's date, we deny the motion to strike for the reasons discussed in Part II(B).

      . Under the Indiana Code, an Indiana court must accord full faith and credit to an out-of-state protection order that is "facially valid." I.C. § 34-26-5-17.

      . Herren also argues that the small claims court should have conferred full faith and credit to the Protective Order under 18 U.S.C. § 2265(a). Because this case can be resolved under the State law, we do not address Her-ren's federal law arguments.

      . The Protective Order states, "Only the Court can change this order{,]" and, when referring to the enforcement authority of other state courts, "court" is lower-cased. (Appellant's App. p. 30).


author: MATHIAS, Judge.

text:
    B.R., a Minor, by his Guardian, Teresa TODD, Appellant-Plaintiff, v. STATE of Indiana, Indiana Department of Child Services, Morgan County Office of Department of Child Services, and Adult and Child Mental Health Center, Inc., Appellee-Defendants.
    No. 55A05-1212-CT-639.
    Court of Appeals of Indiana.
    Nov. 21, 2013.

      David B. Wilson, Indianapolis, IN, W. Brent Gill, Nunn Law Office, Bloomington, IN, Attorneys for Appellant.
    Sheri Bradtke McNeil, Kopka, Pinkus, Dolin & Eads, P.C., Crown Point, IN, Attorney for Appellee Adult and Child Mental Health Center.
   OPINION

MATHIAS, Judge.

B.R., by his guardian, Teresa Todd argues that the trial court erred when it granted the Adult and Child Mental Health Center's ("the Health Center") Trial Rule 12(B)(1) motion to dismiss for lack of subject matter jurisdiction. The precise issue presented in this appeal is whether the Health Center was providing "health care" when it placed B.R. in respite therapeutic foster care, and therefore, whether B.R.'s claim was subject to the Indiana Medical Malpractice Act.

We reverse and remand for proceedings consistent with this opinion.

Facts and Procedural History

The Health Center is a certified mental health center in Indiana. The Health Center provides clinical services to children to address emotional, behavioral, and educational needs to children in foster care. The Health Center has a contract with the Marion County Office of Indiana Department of Child Services ("DCS") authorizing it to assess children removed from their homes, to provide recommendations for services for those children, to provide for their psychological and psychiatric needs, and to facilitate therapeutic foster care placements.

In July 2007, B.R. was three years old when DCS removed him from his home and placed him in therapeutic foster care. B.R. was referred to the Health Center for a mental health assessment. He was diagnosed with neglect of a child and disruptive behavior disorder. B.R. was also significantly developmentally delayed.

For all of these reasons, B.R. was placed with therapeutic foster parents Michelle Foster and Darrell Riley. A Health Center employee supervised this placement and served as B.R.'s case manager. Because therapeutic foster care can be quite stressful, respite care is made available from time to time, and Michelle Foster requested respite care for the weekend of September 21 to 28, 2007. B.R.'s case manager arranged for him to be placed in respite care with therapeutic foster parents Mark and Penny Hughes.

On September 22, 2007, B.R. ran from the Hugheses' residence onto an adjacent property where a swimming pool was located. B.R. entered the pool, and he was later found floating facedown and non-responsive. B.R. suffered catastrophic brain damage as a result of this near drowning.

This case was initiated under two separate cause numbers when B.R.'s biological parents individually filed complaints against the Hugheses and their neighbor. The biological parents were then ordered to file a joint complaint under a new cause number. On July 16, 2008, the joint complaint was filed, which added the following defendants: Indiana Department of Child Services, Marion County Department of Child Services, Morgan County Department of Child Services, Morgan County Emergency Management Agency, Green Township Fire Rescue, Michelle Foster, and Darrell Riley. The biological parents later amended their complaint and also added the Health Center as a defendant.

On July 2, 2009, the Health Center filed a motion for summary judgment and the trial court entered an order granting partial summary judgment. The trial court concluded that the following genuine issues of material fact precluded the entry of summary judgment: whether the Health Center adequately monitored and supervised B.R. and the Hugheses while B.R. was in their care, whether the Health Center was negligent in their inspection of the Hugheses' home and the surrounding area, and whether the Health Center was negligent for placing B.R. in the Hugheses' home. However, the trial court granted partial summary judgment on other issues such as whether the Health Center adequately trains foster parents and has proper procedures, assessments, and training for managing children with special needs or disabilities.

On September 7, 2011, with the trial court's permission, B.R. filed a second amended complaint for damages naming B.R. as the plaintiff, by his guardian Teresa Todd. In the complaint, B.R. alleged that the Health Center breached its duty to B.R. by (1) providing inadequate supervision and monitoring of B.R. while he was placed in therapeutic foster care; (2) failing to adequately supervise B.R.'s foster parents; (8) failing to provide for adequate supervision of B.R. by his foster parents; (4) failing to properly place B.R. given his special needs and disabilities; (5) failing to adequately inspect the Hugheses' home and surrounding area; (6) failing to adequately inspect the Hugheses' property before placing B.R. in the home; (7) failing to adequately inspect the surrounding area and neighborhood of the Hugheses' home to ensure B.R.'s safety; (8) failing to inform the Hugheses that B.R. needed to be watched at all times for his own protection and safety; (9) failing to warn the Hughes-es that B.R. had a tendency to run away; and (10) failing to take appropriate precautions to protect BR. given his special needs and characteristics Appellant's App. pp. 198-207.

The Health Center filed an answer to the second amended complaint and admitted its contractual relationship with DCS. The Health Center also pled immunity under the Tort Claims Act as an affirmative defense. Other motions were filed and adjudicated, and eventually, on August 9, 2012, the Health Center filed its motion to dismiss pursuant to Trial Rule 12(B)(1). In the motion, the Health Center alleged that B.R.'s action is a malpractice claim against a health care provider, which claim is subject to review by a medical review panel, and that since B.R. had not submitted his claim through the review panel process, the trial court lacked subject matter jurisdiction. A hearing was held on the motion, and on November 7, 2012, the trial court entered an order granting the Health Center's motion to dismiss. BR., by his guardian Teresa Todd, now appeals.

Standard of Review

"Subject matter jurisdiction is the power to hear and determine cases of the general class to which the proceedings then before the court belong." Hubbard v. Columbia Women's Hosp. of Indianapolis, 807 N.E.2d 45, 50 (Ind.Ct.App.2004).

In ruling on a motion to dismiss for lack of subject matter jurisdiction, the trial court may consider not only the complaint and motion but also any affidavits or evidence submitted in support. The trial court may weigh the evidence to resolve the jurisdictional issue. The standard of appellate review for Trial Rule 12(B)(1) motions to dismiss is dependent upon what occurred in the trial - court, that is: (1) whether the trial court resolved disputed facts; and (ii) if the trial court resolved disputed facts, whether it conducted an evidentiary hearing or ruled on a "paper record."

Wishard Mem'l Hosp. v. Kerr, 846 N.E.2d 1083, 1087 (Ind.Ct.App.2006) (internal quotations and citations omitted). Furthermore,

If the facts before the trial court are in dispute, then our standard of review focuses on whether the trial court conducted an evidentiary hearing. Under those cireumstances, the court typically engages in its classic factfinding function, often evaluating the character and credibility of witnesses. Thus, where the trial court conducts an evidentiary hearing, we give its factual findings and judgment deference. ...
However, where the facts are in dispute but the trial court rules on a paper record without conducting an evidentia-ry hearing, then no deference is afforded the trial court's factual findings or judgment because under those cireumstances a court of review is in as good a position as the trial court to determine whether the court has subject matter jurisdiction. Thus, we review de novo a trial court's ruling on a motion to dismiss where the facts before the court are disputed and the trial court rules on a paper record.

GKN Co. v. Magness, 744 N.E.2d 397, 401 (Ind.2001) (internal quotations and citations omitted).

Here, the jurisdictional facts were in dispute and the trial court held a hearing, which is most fairly characterized as an oral argument, rather than an eviden-tiary hearing. Therefore, the appropriate standard of review is de novo. See Popovich v. Danielson, 896 N.E.2d 1196 (Ind.Ct.App.2008) (de novo review is appropriate where the trial court rules on a motion to dismiss for lack of subject matter jurisdiction and holds a hearing at which the parties present legal arguments), trans. demied.

I. Medical Malpractice Act

To resolve the issues presented in this appeal, we proceed under the principle that the statutory procedures for bringing a medical malpractice action are in derogation of common law, and as such, they are to be strictly construed against limiting a claimant's right to bring suit. Weldon v. Universal Reagents, Inc., 714 N.E.2d 1104, 1107 (Ind.Ct.App.1999). When the legislature enacts a statute in derogation of common law, we presume that the legislature is aware of the common law, and does not intend to make any change beyond what is declared in express terms or by unmistakable implication. Id.

The Medical Malpractice Act, Indiana Code article 34-18, applies to a patient or the representative of a patient who has a claim "for bodily injury or death on account of malpractice[.]" I.C. § 34-18-8-1. "Malpractice" is defined as "a tort or breach of contract based on health care or professional services that were provided, or that should have been provided, by a health care provider, to a patient." I.C. § 34-18-2-18. A "patient" is "an individual who receives or should have received health care from a health care provider, under a contract, express or implied, and includes a person having a claim of any kind, whether derivative or otherwise, as a result of alleged malpractice on the part of a health care provider." I.C. § 34-18-2-22. And "health care" is "an act or treatment performed or furnished, or that should have been performed or furnished, by a health care provider for, to, or on behalf of a patient during the patient's medical care, treatment, or confinement." I.C. § 34-18-2-13.

Indiana Code section 34-18-8-4 provides that "an action against a health care provider may not be commenced in a court in Indiana before: (1) the claimant's proposed complaint has been presented to a medical review panel established under IC 34-18-10 (or IC 27-12-10 before its repeal); and (2) an opinion is given by the panel." Simply said, the Act grants subject matter jurisdiction over medical malpractice actions first to the medical review panel, and then to the trial court. H.D. v. BHC Meadows Hosp., Inc., 884 N.E.2d 849, 853 (Ind.Ct.App.2008), trans. denied (citation omitted).

B.R. concedes that the Health Center is a "health care provider" as that entity is defined in the Medical Malpractice Act and is therefore eligible for coverage under the Act, See I.C. §§ 34-18-2-13; 34-18-2-14(3). The Indiana Family and Social Services, through its Division of Mental Health and Addiction, certifies and regulates community health centers. See I.C. § 12-21-2-3. Mental health centers are required to have a combination of licensed clinical social workers, licensed mental health counselors, licensed family therapists, clinical nurse specialists, licensed psychologists and licensed psychiatrists on staff.

However, the Health Center's certification by the Division of Mental Health and Addiction does not allow it to facilitate and supervise foster care placements. Only DCS has authority to license entities to make and supervise foster care placements. IC. § 31-27-6-1. And child placement agencies are governed by regulations issued by DCS. Therefore, the Health Center's authority to make therapeutic foster care placements arises solely from its contract with DCS.

II. Was the Health Center providing health care to B.R. when it placed him with the Hugheses, as that term is defined in Indiana Code seetion 34-18-2-18 ?

As stated above, the Medical Malpractice Act defines "malpractice" as "a tort or breach of contract based on health care or professional services that were provided, or that should have been provided, by a health care provider, to a patient." I.C. § 34-18-2-18. Important ly, the Medical Malpractice Act "pertains to curative or salutary conduct of a health care provider acting within his or her professional capacity.] Murphy v. Mortell, 684 N.E.2d 1185, 1188 (Ind.Ct.App.1997), trans. denied. Moreover, the Act is designed to exclude that conduct which is not related to "'the promotion of a patient's health or the provider's exercise of professional expertise, skill, or judgment."" Id. (citation omitted); see also Peters v. Cummins Mental Health, Inc., 790 N.E.2d 572, 576 (Ind.Ct.App.2003), trans. denied (stating "[tlhe Act is not all-inclusive as to claims against medical providers, and a claim against a medical provider sounding in general negligence ... rather than medical malpractice is outside the Act").

Therefore, the plaintiff's status as a patient of a health care facility is not dispositive in determining whether the claim sounds in medical malpractice. Estate of O'Neal ex rel. Newkirk v. Bethlehem Woods Nursing & Rehab. Ctr., 878 N.E.2d 303, 311 (Ind.Ct.App.2007). The test to determine whether a claim sounds in medical malpractice is "whether the claim is based on the provider's behavior or practices while 'acting in his professional capacity as a provider of medical services.'" Madison Ctr., Inc. v. R.R.K., 853 N.E.2d 1286, 1288 (Ind.Ct.App.2006), trans. denied (quoting Collins v. Thakkar, 552 N.E.2d 507, 511 (Ind.Ct.App.1990), trans. denied ). "Applying this test has resulted in hairline distinctions between claims that sound in medical negligence and those that sound in ordinary negligence." Estate of O'Neal, 878 N.E.2d at 311.

A case sounds in ordinary negli-genee where the factual issues are capable of resolution by a jury without application of the standard of care prevalent in the local medical community. See Murphy, 684 N.E.2d at 1188. By contrast, a claim falls under the Medical Malpractice Act where there is a causal connection between the conduct complained of and the nature of the patient-health care provider relationship. See Putnam Cnty. Hosp. v. Sells, 619 N.E.2d 968, 971 (Ind.Ct.App.1993).

B.R. claims that the Health Center's decision concerning his placement and its provision of information to the respite therapeutic foster parents about his specific needs "is the practice of foster care management" and not health care. Appellant's Br. at 20. The Health Center's "liability is based on its case manager's negligence in placing [B.R.] with respite foster parents for the weekend. No physician, psychologist, or other health care professional played a role in either the placement decision or the provision of information to the respite foster parents." Id. at 21. B.R. argues that an "analysis of whether a health care provider's professional services constituted 'health care' focuses on whether a health care professional is required to participate in the provided services." Id. at 25.

In OB-GYN Associates of Northern Indiana P.C. v. Ransbottom, our court considered whether cosmetic laser hair removal was "health care" within the meaning of the Medical Malpractice Act. 885 N.E.2d 734, 735 (Ind.Ct.App.2008), trans. denied. The laser hair removal at issue in that case was performed by a nurse in a physician's office, but we did not find those facts to be determinative. We concluded that cosmetic laser hair removal was not health care because "physicians were not involved in Ransbottom's treatment, and the operator of the laser machine was not required to be a healthcare worker or possess healthcare credentials such as medical degrees, medical licensure, or medical certification in order to operate the machine." Id. at 739. We also stated:

[TJhis treatment can be, and often is, legally administered in beauty salons by beauty salon employees. With this in mind, it appears that, but for the fact that the laser machine's operator happened to be a registered nurse and the laser machine happened to be located in a medical facility, there would be no question but that Ransbottom's laser hair removal treatment did not constitute health care. Again, so far as we can tell, Ransbottom could have legally obtained the same treatment somewhere other than a healthcare facility, and could have legally done so without the assistance or participation of someone with valid healthcare licensing or certification eredentials In those respects, the laser hair removal treatment is analogous to tattooing or tanning, both of which alter the body for cosmetic purposes, but neither of which need be performed by a licensed or certified physician or healthcare professional.

Id. In support of this conclusion, we emphasized the fact that "no healthcare professional was required to" participate in the laser hair removal treatment. Id. at 740 (emphasis in original). See also Community Hosp. v. Avant, 790 N.E.2d 585, 587 (Ind.Ct.App.2003) (holding that although the plaintiff was involved in a fitness program at a facility owned by the hospital with a trainer employed by the hospital, the plaintiff was not a "patient" as that term is used in the Medical Malpractice Act because he was not under a physician's orders to start the program as part of a medical treatment plan).

In this case, a health care professional was not required to, and a health care professional did not, participate in B.R.'s case manager's decision to place him in the Hugheses' home for respite therapeutic foster care. Moreover, such placement decisions are routinely made by individuals with no health care training. While B.R.'s respite therapeutic foster care placement decision was made by an employee of a health care provider, as we noted in Ransbottom, that fact is not determinative.

We also agree with B.R.'s argument that a medical review panel "is no more equipped to consider" the Health Center's negligence than the average juror. Appellant's Br. at 26. In Collins v. Thakkar, 552 N.E.2d 507 (Ind.Ct.App.1990), trams. denied, our court discussed the General Assembly's purpose for requiring medical malpractice claims to be reviewed by a medical review panel:

The text of the Act itself thus leads one to conclude that the General Assembly intended to exclude from the legislation's purview conduct of a provider unrelated to the promotion of a patient's health or the provider's exercise of professional expertise, skill or judgment.
The legislature's establishment of a medical review panel, the sole purpose of which is to provide an expert determination on the question of whether a provider complied with the appropriate standard of care, suggests that the seope of the Act is likewise confined to actions premised upon the exercise of profession judgment.

Id. at 510-11.

The issues presented in this case surrounding B.R.'s case manager's alleged negligence are unquestionably within the understanding of the average lay juror. A medical professional is no better equipped than the average juror to consider whether the case manager complied with the appropriate standard of care. See eg. H.D. v. BHC Meadows Hospital, Inc., 884 N.E.2d 849, 855 (Ind.Ct.App.2008), trans. denied (stating "[wle fail to see why the therapist's act of faxing a patient's confidential information to a fax machine located in a school office without taking precautions to ensure that the materials are discreetly received by the intended recipient would necessitate consideration by a medical review panel" and observing that the average juror is equipped to understand the elements of invasion of privacy).

Yet, the Health Center argues that this case falls under the purview of the Medical Malpractice Act because, under its interpretation of the Act, a licensed social worker could serve on a medical review panel. Indiana Code section 34-18-10-5 provides that "all health care providers in Indiana, whether in the teaching profession or otherwise, who hold a license to practice in their profession shall be available for selection as members of the medical review panel. Health facility administrators may not be members of the medical review panel." A "health care provider" is defined in part as

An individual, a partnership, a limited liability company, a corporation, a professional corporation, a facility, or an institution licensed or legally authorized by this state to provide health care or professional services as a physician, psychiatric hospital, hospital, health facility, emergency ambulance service (IC 16-18-2-107), dentist, registered or licensed practical nurse, physician assistant, certified nurse midwife, optometrist, podiatrist, chiropractor, physical therapist, respiratory care practitioner, occupational therapist, psychologist, paramedic, advanced emergency medical technician, or emergency medical technician, or a person who is an officer, employee, or agent of the individual, partnership, corporation, professional corporation, facility, or imstitution acting in the course and scope of the person's employment.

I.C. § 34-18-2-14 (emphasis added).

We are not persuaded by the Health Center's reliance on this "catch-all provision." Considering the statute as a whole and the purpose of the Medical Malpractice Act, we conclude that the catch-all provision applies to persons providing health care to patients by virtue of their employment with a health care provider. To reach the conclusion urged by the Health Center, that a licensed individual need only be employed by a health care provider to serve on a medical review panel, would lead to absurd results. For example, under the Health Center's interpretation of the statute, a certified public accountant employed by a health care provider would be eligible to serve on a medical review panel. Our review of the Medical Malpractice Act leads us to conclude that the General Assembly did not intend that result. See Ind. Pesticide Rev. Bd. v. Black Diamond Pest & Termite Control Inc., 916 N.E2d 168, 181 (Ind.Ct.App.2009) (stating that the goal of statutory construction is to determine, give effect to, and implement the intent of the legislature), trans. denied.

Conclusion

The allegations in B.R.'s complaint, ie. that his case manager negligently placed him with the respite therapeutic foster parents and negligently failed to inform the foster parents that B.R. was an overly active child known to run from adults and escape his home, are not directly related to any medical care B.R. received from the Health Center. Furthermore, the foster care placement was not made by a health care professional. Because B.R.'s claims sound in general negligence, his claims fall outside the Medical Malpractice Act. See Peters, 790 N.E.2d at 576. For all of these reasons, we conclude that the trial court erred when it granted the Health Center's Trial Rule 12(B)(1) motion to dismiss.

Reversed and remanded for proceedings consistent with this opinion.

NAJAM, J., and BAILEY, J., concur.

      . Certain previously named defendants were dismissed prior to the filing of the second amended complaint under either settlement agreements or other dispositive motions.

      . We held oral argument in this case on October 24, 2013 at the Indiana University Robert H. McKinney School of Law. We thank the Law School for its generous hospitality and counsel for the quality of their written and oral advocacy.

      . See e.g. Methodist Hosp. of Ind., Inc. v. Rioux, 438 N.E.2d 315 (Ind.Ct.App.1982) (addressing whether the Medical Malpractice Act applied to patient's claim for injuries sustained when she fell and broke her hip while hospitalized), disapproved of by Winona Memorial Found of Indianapolis v. Lomax, 465 N.E.2d 731 (Ind.Ct.App.1984) (concluding that a physical therapy patient's claim for injuries sustained at a hospital facility when she tripped over a floorboard protruding above the floor and was not receiving care or treatment when injured was not covered under the Medical Malpractice Act).