Massa, J.
E. is a baby girl lucky enough to be wanted by two sets of parents: her biological father, R.M., and her prospective adoptive parents, Jason and Justina Kramer. Unfortunately for the Kramers, our legal system gives priority to the rights of biological parents over adoptive parents, and the Kramers were forced to give up E. shortly after Christmas, having had custody for the first eight months of E.’s life. The Kramers then turned their understandable anguish upon Catholic Charities, the agency they had hired to facilitate the adoption, alleging Catholic Charities should have checked the putative father registry prior to placing E. with them, or alternatively, that Catholic Charities had a duty to disclose to the Kramers its failure to conduct a pre-placement check of the registry. Because the applicable Indiana statute does not impose the requirement of a pre-placement registry check, and because the Kramers failed to demonstrate that Catholic Charities had any duties in excess of its statutory obligations, we affirm the trial court’s grant of summary judgment.
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Here, the parties agree that Catholic Charities complied with Indiana Code section 31-19-5-15 by checking the putative father registry on the 31st day after E.’s birth, the minimum statutory standard for adoption agencies. This constitutes a prima facie showing of both the extent of Catholic Charities’ duty with respect to the registry, and Catholic Charities’ satisfaction of that duty. Accordingly, the Kramers bear the burden to set forth specific facts showing that there is a genuine issue for trial on the elements of duty and breach. See Ind. Trial Rule 56(E).
The Kramers argue that irrespective of its statutory obligations, Catholic Charities had a duty to check the registry prior to E.’s placement. But they cite no authority or evidence beyond Catholic Charities’ informal practice of conducting such pre-placement checks. In Wal-Mart Stores, Inc. v. Wright, this Court ruled such internal practices, standing alone, do not “tend[] to show the degree of care recognized by [the defendant] as ordinary care” because they may be “established for any number of reasons having nothing to do with . . . ordinary care,” and thus are only admissible into evidence before a jury “with an express caution that they are merely evidentiary and not to serve as a legal standard.” 774 N.E.2d 891, 894–95 (Ind. 2002). [Footnote omitted.] We thus find the Kramers failed to raise a genuine issue of fact as to whether Catholic Charities assumed a duty to conduct a pre-placement check of the registry on behalf of the Kramers. See also Yost v. Wabash Coll., 3 N.E.3d 509, 516–18 (Ind. 2014) (awarding summary judgment to defendant college despite plaintiff’s designation of evidence that college had “strict policy against hazing and use of the ‘Gentlemen’s Rule’ to guide student behavior,” finding such evidence insufficient to show that college assumed the duty to protect plaintiff from hazing by a particular fraternity, since college’s “specific undertaking did not extend to direct oversight and control of the behavior of individual student members of the local fraternity,” and noting that “where the record contains insufficient evidence to establish such a duty, the court will decide the issue as a matter of law” (internal citations omitted)). The Kramers also argue Catholic Charities had a duty to disclose its failure to check the registry prior to E.’s placement (in violation of its informal practice to do so) because the Kramers and Catholic Charities were in a fiduciary relationship. [Footnote omitted.] “Whether the defendant must conform his conduct to a certain standard for the plaintiff’s benefit is a question of law for the court to decide.” Estate of Heck ex rel. Heck v. Stoffer, 786 N.E.2d 265, 268 (Ind. 2003). This analysis involves balancing three factors: (1) the relationship between the parties, (2) the reasonable foreseeability of harm to the injured party, and (3) public policy concerns. Id.; Webb v. Jarvis, 575 N.E.2d 992, 995 (Ind. 1991).
With respect to the relationship between the parties, both parties agree Catholic Charities acted as the Kramers’ agent with respect to the potential adoption of E. [Footnote omitted.] The nature of an agency relationship is generally determined by the terms of the agreement between the parties. [Footnote omitted.] N. Ind. Pub. Serv. Co. v. Bloom, 847 N.E.2d 175, 187 (Ind. 2006); Dep’t of Treasury v. Ice Serv., 220 Ind. 64, 68, 41 N.E.2d 201, 203 (1942); Restatement (Third) of Agency § 8.07 (2006).
Here, the Kramers had the right to “obtain[] information about the risks and benefits . . . of services they [would] receive.” App at 262. The Kramers also agreed to provide “honest and complete information to Catholic Charities,” while Catholic Charities agreed only to “be honest and forthcoming in all phases of the adoption process.” App. at 212. Catholic Charities also expressly reserved the right to revise its policies and practices at any time. (App. at 214). Debra Schmidt, the executive director of Catholic Charities, further stated Catholic Charities had a duty to provide truthful and accurate information to the Kramers regarding the adoption process, and to disclose all of the information it was aware of at the time of E.’s placement.
Utterly absent from the record is any indication that Catholic Charities made any of the following representations to the Kramers, in writing or otherwise: (a) a promise to conduct a pre-placement check of the putative father registry; (b) a statement disclosing the existence of Catholic Charities’ informal practice of conducting such pre-placement checks; (c) a promise to provide complete and total information to the Kramers of Catholic Charities’ adoption practices; (d) a false statement regarding Catholic Charities’ adoption practices; or (e) a false statement regarding E.’s parentage at any point during the adoption process. Any one of these would have supported an inference that Catholic Charities had a duty to disclose its failure to conduct a pre-placement check of the putative father registry. But Catholic Charities did not assume any such duty under the terms of its agreement with the Kramers. See Shawnee Const. & Eng’g, Inc. v. Stanley, 962 N.E.2d 76, 86 (Ind. Ct. App. 2011) (finding no contractual duty where agreements at issue did not contain “specific language that the parties clearly intended to charge [defendant] with a specific duty of care for the safety of all employees on the project”), trans. denied, 963 N.E.2d 1124 (Ind. 2012).
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The three-factor test for imposition of a duty under these circumstances is thus equally split. The Kramers, however, bore the burden of persuasion. Ind. Trial Rule 56(E); Williams, 914 N.E.2d at 762. Accordingly, the Kramers failed to demonstrate that Catholic Charities had any duties with respect to the putative father registry in excess of statutory requirements. [Footnote omitted.}
Conclusion
For the foregoing reasons, the trial court’s grant of summary judgment in favor of Catholic Charities dismissing the Kramers’ complaint is affirmed.
Rush, C.J., and Rucker, David, JJ., concur.
Dickson, J., dissents with separate opinion.
Dickson, J., dissenting:
The majority opinion concludes that Catholic Charities, by showing that it complied with Indiana Code section 31-19-5-15(b)(1), which requires adoption agencies to check the putative father registry at least one day after the close of the putative father’s deadline, met its initial burden of making a prima facie case for summary judgment. I respectfully disagree.
Under Indiana tort law, when applying the “duty-breach-damages” analysis to determine the tort of negligence, “the duty of care is well established—that care which is reasonable under the circumstances.” Estate of Heck ex rel. Heck v. Stoffer, 786 N.E.2d 265, 270 (Ind. 2003). Except when a specific duty is declared by statute or common law, it is the duty of reasonable care under the circumstances that governs. The parties do not dispute that Catholic Charities owed to the Kramers the duty of reasonable care. Thus, the issue in this case is not whether there was a special duty to take or refrain from specific action, for example, a duty to conduct a pre-placement check, a duty to disclose the failure to conduct checks, or a duty to inform of risks. The essence of the parties’ disagreement here is whether the action and/or lack of action of Catholic Charities satisfied the single overriding duty of reasonable care under the circumstances, or in other words, whether the duty was breached. Because it involves an evaluation of reasonableness under the circumstances, breach of duty is rarely appropriate for summary judgment. I believe this case to be no exception.
I believe that, as the party moving for summary judgment, Catholic Charities did not affirmatively demonstrate that its exercise of reasonable care for the Kramers under the circumstances is established by undisputed facts. For this reason, the motion for summary judgment filed by Catholic Charities should be denied, and the Kramers’ negligence claim should be permitted to proceed to trial.