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It is not uncommon for children to live with people who do not have legal rights to care for them.
"I would say that ... there's probably a greater number of children living in situations in which no one has the legal parental rights more than most people would think about," said Peggy Shively, executive director of Kosciusko County Child and Family Services.
The issue surfaced following the Jan. 26 death of Lois Marie Ozenbaugh at the home of her mother, Christine Crooks, 19, North Webster.
Crooks was due in court that day to respond to Dave and Vicki Dittman's filing for guardianship of Lois. The child had lived with the Dittmans for 10 months with Crooks' permission, but without court approval.
Shively said that children often stay with grandparents and stepparents and often that caregiver has no more legal right to the child than a neighbor.
An autopsy found five cigarettes in Lois' stomach. Authorities fear the infant died of nicotine poisoning.
But the Dittmans are still filing for custody of Lois' sister, Autumn, who also stayed with them for 10 months.
"My personal experience, from other situations, not this one, is that the burden of proof is pretty stiff, " said Shively.
Kosciusko County Prosecutor David Kolbe concurred with Shively, saying that it takes persuasive evidence to convince a judge to give custodial rights to a nonblood relative.
Crooks was coming into court that day without an attorney, Kolbe said. "It is difficult to win a case without an attorney in those circumstances," said Kolbe.
To lose parental rights the standard is called clear and convincing, which is difficult to prove, the prosecutor said. But for a parent to lose custody an attorney would have to tip the scales of proof just more than 50 percent, he said.
Children have a parent, guardian or custodian, and certain relationships have legal rights to obtain medical care for a child, to make educational decisions for a child, and that relationship usually belongs to the natural parent.
If there are two natural parents and there has been a separation between those two, both parents still maintain the right to make decisions, Shively said. She added that those rights have to be removed by court action.
Shively said most children are often in the care of persons who could not legally take care of their legal needs. Those persons include babysitters, grandparents, aunts and uncles.
Children are placed with a babysitter for a temporary period. "We give that person the ability to make personal decisions for that child, but they still could not obtain medical, technically, or emergency care for the child," said Shively.
If children are left with people over a longer period of time, Family Services will encourage people to take legal guardianship of the child so the caregivers can get emergency medical care for the child.
Caregivers can petition for guardianship and receive it easily if the child's parents approve. "If the parent is unwilling it typically does not happen," said Shively.
"There is a burden of proof as to why this person can't have that child," she said.
The other thing with guardianship is that the parents can go to court and request that a guardianship be set aside. Usually it would be set aside for the parent, Shively explained.
