MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Feb 26 2020, 8:04 am
court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANTS ATTORNEYS FOR APPELLEE Bruce Carr Cory A. Shoffner LaPorte, Indiana Brody B. Shoffner Shoffner & Shoffner, LLP LaPorte, Indiana
IN THE COURT OF APPEALS OF INDIANA
In re: The Adoption of A.S., February 26, 2020 a minor child, Court of Appeals Case No. 19A-AD-1250 S.J., and P.M., Appeal from the LaPorte Superior Court Appellants-Intervenors, The Honorable Richard R. v. Stalbrink, Jr., Judge Trial Court Cause Nos. A.H., 46D02-1807-AD-27 46D02-1709-GU-115 Appellee-Petitioner,
Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-AD-1250 | February 26, 2020 Page 1 of 22 Case Summary and Issue [1] A.H. was appointed guardian of A.S. and later adopted her. After the adoption
was granted and the guardianship dismissed, P.M. and S.J. filed motions to
intervene in both the guardianship and adoption actions. They also requested
the trial court correct error and grant them relief from judgment to reopen the
proceedings so a guardian ad litem could be appointed and A.S.’s best interests
re-litigated. The trial court denied their motion to intervene and, in turn, their
motions to correct error and for relief from judgment. P.M. and S.J. now
appeal, and we address the following issue: whether the trial court abused its
discretion when it determined neither P.M. nor S.J. had standing to intervene
and request relief in these actions. Concluding the trial court did not err, we
affirm.
Facts and Procedural History [2] The people involved in this case and their relationships are:
• A.S. (“Child”) – the child at the center of both the guardianship and
adoption proceedings
• S.M.S. (“Mother”) – Child’s biological mother
• M.S. – Child’s father as evidenced by the paternity affidavit he executed
following Child’s birth and his registration with the putative father
registry
• P.M. (“Grandmother”) – Child’s maternal grandmother
Court of Appeals of Indiana | Memorandum Decision 19A-AD-1250 | February 26, 2020 Page 2 of 22 • A.H. (“Guardian”) – Child’s legally-appointed guardian and later,
adoptive mother
• S.J. – man alleged by Grandmother to be Child’s father
• “Appellants” – collectively, Grandmother and S.J.
[3] Child was born on August 27, 2009. M.S. completed a paternity affidavit on
August 28 and is registered with the putative father registry. From September
2015 to August 2016 and intermittently from June 2017 to September 2017,
Child resided with Grandmother. On September 14, 2017, Guardian filed a
petition to be appointed Child’s guardian. Mother and M.S. were served with
notice of the petition. M.S. consented to the appointment of Guardian.
Mother never appeared or otherwise participated in the action. On October 4,
2017, Guardian was appointed temporary emergency guardian, and on
December 1, 2017, the guardianship was made permanent.
[4] On August 10, 2018, Grandmother filed a Petition of Grandparent for Rights of
Visitation in the guardianship cause number. On Guardian’s motion, the trial
court struck the pleading because Grandmother was not a party to the
guardianship action and the petition was not filed in accordance with the
statutory requirements for a grandparent visitation action.1 Thereafter,
1 Indiana Code chapter 31-17-5 provides that a child’s grandparent may obtain visitation rights if, among other things, the child was born out of wedlock and the court finds that visitation rights are in the best interests of the child. Ind. Code §§ 31-17-5-1(a)(3), -2(a). Critically, the grandparent visitation statute also provides that a proceeding for grandparent visitation is commenced by the filing of a verified petition entitled “In Re the Visitation of _____” in a court in the county in which the child resides. Ind. Code §§ 31-17-5-3(a), -
Court of Appeals of Indiana | Memorandum Decision 19A-AD-1250 | February 26, 2020 Page 3 of 22 Grandmother filed an “Objection to Guardianship Unless Granted Rights of
Visitation.”2 Guardian again moved to strike and requested attorney fees. The
trial court set a hearing on Guardian’s motion for December 11, 2018. On
September 28, 2018, Grandmother filed a Motion for Appointment of Guardian
Ad Litem, alleging that Grandmother had heard that S.J. may be Child’s father
and requesting a guardian ad litem be appointed to represent Child’s best
interests in the case. Guardian moved to strike this pleading as well, and on
October 10, 2018, the trial court denied Grandmother’s motion because
Grandmother was not a party to the guardianship case. Grandmother then
filed a motion to reconsider this ruling. The trial court added the motion to
reconsider to the matters to be considered on December 11.
[5] Meanwhile, on July 16, 2018, Guardian filed a petition to adopt Child. M.S.
consented to the adoption and Guardian gave notice to Mother. Mother never
appeared. On August 17, 2018, Grandmother filed in the adoption proceeding
an “Objection to Adoption Unless Granted Rights of Visitation,” identical in
almost all respects to the objection filed on the same date in the guardianship
case.3 The trial court granted Guardian’s motion to strike the objection because
4(1). Thus, a petition seeking grandparent visitation cannot just be bootstrapped into an existing cause but is a cause unto itself. 2 This pleading is virtually identical to the Petition for Grandparent Visitation with the primary exception of the prayer for relief. In the petition for visitation, Grandmother requested reasonable visitation rights; in the objection, Grandmother requested that A.H.’s guardianship of Child be revoked and Grandmother be granted temporary guardianship unless she is awarded reasonable visitation rights. 3 On this date, Grandmother also filed a Petition of Grandparent for Rights of Visitation in a separate cause number. See Verified Motion to Intervene and Correct Error in Cause No. 46D02-1709-GU-115/46D02-
Court of Appeals of Indiana | Memorandum Decision 19A-AD-1250 | February 26, 2020 Page 4 of 22 Grandmother was not a party to the adoption action and because grandparent
visitation is not appropriately addressed in this way. A home study was
conducted, a final hearing held, and a decree of adoption was issued on
October 29, 2018, granting Guardian’s petition to adopt Child.
[6] On December 10, 2018, Guardian filed a motion to dismiss the guardianship
action because the guardianship was no longer necessary due to the adoption
being finalized. The trial court granted the motion to dismiss and cancelled the
hearing set for December 11.
[7] The two cases converged when, on January 9, 2019, Grandmother filed nearly
identical “Motions to Intervene and Correct Error” in both cases. The motions
purported to be filed on behalf of both Grandmother and S.J., but no
appearance was ever entered for S.J. and he never appeared in court to advance
his own interests. In part, the motions alleged:4
Comes now Intervenors [S.J.] and [Grandmother], by counsel, and pursuant to Trial Rules 21(A) and 24(A) of the Indiana Rules of Civil Procedure, move the Court for leave to intervene in this
1807-AD-27, ¶ 13 (mentioning that “Grandmother filed her separate visitation action on August 17, 2018 under Cause No. 46D02-1808-MI-001290”). This petition for grandparent visitation is also virtually identical to the objections filed in the guardianship and adoption proceedings. It does not appear that any proceedings have been had on this petition, as the only entry on the Chronological Case Summary for Cause No. 46D02- 1808-MI-1290 is the filing of the petition. Therefore, it is not clear whether the petition was served upon A.H. as required by Indiana Code section 31-17-5-5. 4 Grandmother has not included a copy of these pleadings (or many others) in her appendix. Contra Ind. Appellate Rule 50(A)(2)(f) (stating the appendix in a civil appeal shall include “pleadings and other documents from the Clerk’s Record . . . that are necessary for resolution of the issues raised on appeal[.]”). Pursuant to Indiana Evidence Rule 201, however, we have taken judicial notice of the records of the court below necessary to inform our decision.
Court of Appeals of Indiana | Memorandum Decision 19A-AD-1250 | February 26, 2020 Page 5 of 22 action, and pursuant to T.R. 59 and T.R. 60(B) move the Court to correct its order[s] entered, [10/29/18 allowing Guardian to adopt the Minor Child and] 12/11/18 dismissing the [guardianship] cause.
***
7. Indiana’s Guardianship statute is intended to protect the rights of the natural parents and specifically precludes a guardianship Court from entering orders in the absence of notice to the parents and requires the Court to consider the best interests of the Minor.
8. Indiana’s Adoption Statute requires notice of the proceedings be given to the natural parent and grandparent of the child and the Court to consider the best interests of the minor.
9. The Guardian in the instant case, who is also the petitioner for adoption . . ., wholly failed to provide the natural father and grandparent (intervenors herein), with notice of the adoption proceeding and/or final hearing therein or to consider the best interest of the Minor.
42. There is no question that Intervenors have standing to complain of this Court’s ruling. They have alleged a personal
Court of Appeals of Indiana | Memorandum Decision 19A-AD-1250 | February 26, 2020 Page 6 of 22 stake in the outcome of the controversy and, as Father [5] and Grandmother, seek the best interests of the Minor.
44. The natural bond between the natural father, the maternal Grandmother, and the minor child is sacred, and the petition for adoption and guardianship in this case failed to establish that the natural father had freely and voluntarily surrendered his child for adoption.
54. Neither the Grandmother nor the Father had notice of the Minor’s final adoption by the Guardian until after the Court had already granted the relief requested by the Guardian.
Wherefore, for the reasons set forth above, Intervenors respectfully move the Court for leave to intervene in this action, for the Court to correct the errors in its order of adoption entered on October 29, 2018 [and dismissal entered December 11, 2018] and to reinstate [these] action[s] . . . .
5 Appellants’ insistence on calling S.J. “Father” throughout the trial and appellate proceedings (and for that matter, calling Grandmother “Custodial Grandmother” in their brief to this court) is a misnomer. M.S. signed a paternity affidavit at Child’s birth and registered with the putative father registry. Legally, M.S. is Child’s father. S.J. has done nothing to assert his alleged biological ties to Child, including appearing personally in these cases to represent his own interests.
Court of Appeals of Indiana | Memorandum Decision 19A-AD-1250 | February 26, 2020 Page 7 of 22 Verified Motion to Intervene and Correct Error in Cause No. 46D02-1709-GU-
115/46D02-1807-AD-27.
[8] A hearing was held on the motions over two days in February and March of
2019. The trial court issued an order on May 9, 2019, denying what it
characterized as Appellants’ motions to intervene, correct errors, and for relief
from judgment:
Findings of Fact
1. [Mother] and [M.S.] are the biological parents of the Child.
2. The Putative Father Registry that was submitted to the Court clearly lists [M.S.] as the father of the Child.
3. [M.S.] consented to both the Guardianship and Adoption petitions.
4. [Mother] did not appear at the guardianship hearing, adoption hearing or any of the subsequent hearings on these issues.
5. [Grandmother] is the Child’s maternal grandmother. However, [Grandmother] has not attempted to file for grandparent visitation through any of the appropriate channels afforded to her under Indiana law.
6. [S.J.] appeared on behalf of [Guardian] in the Guardianship case and gave no indication or testimony that he believed he was the biological father of the [Child].
Court of Appeals of Indiana | Memorandum Decision 19A-AD-1250 | February 26, 2020 Page 8 of 22 7. No evidence has been presented to the Court that [S.J.] is the [f]ather of the Child other than statements made in filings under these cause numbers. . . . [S.J.] did not appear at either hearing in which [Grandmother] was attempting to intervene both personally and on his behalf. Additionally, [S.J.] has not made any attempts to assert paternity over the [C]hild through any of the appropriate channels afforded to him by Indiana law.
10. Despite filing multiple documents under both cause numbers starting in August of 2018, [Grandmother] and [S.J.] did not file a Petition to Intervene in either cause until January 9, 2019. This formal attempt to intervene coming after the adoption had been granted on September 29, 2018 and the guardianship discharged on December 11, 2018.
I. Motion to Intervene Pursuant to Trial Rules 21 and 24
1. In order to request the Final Adoption Order and the Guardianship Dismissal Order be set aside pursuant to Trial Rule 59, [S.J.] and [Grandmother] must first prove that they have standing to intervene in these actions.
2. Trial Rule 24(A) . . . states in relevant part that upon timely motion, anyone shall be permitted to intervene in an action when a statute confers an unconditional right to intervene.
3. Pursuant to I.C. § 31-19-4, a putative father is entitled to notice of an adoption if he has registered with the putative father registry.
Court of Appeals of Indiana | Memorandum Decision 19A-AD-1250 | February 26, 2020 Page 9 of 22 5. Therefore, because [S.J.] has not registered with the putative father registry nor established paternity in a separate proceeding, [S.J.] was not entitled to notice of the Petition for Adoption of the [Child].
6. Regarding notice of a pending guardianship petition over a minor, I.C. § 29-3-6-1(a)(3) states [to whom notice must be given].
7. [N]either [Grandmother] nor [S.J.] were entitled to notification of the Guardianship Petition.
8. Pursuant to I.C. § 31-19-4.5-1.5, notice to a grandparent regarding an adoption petition is limited to the issue of visitation and may not be used to contest an adoption.
9. [Grandmother] received notice of the adoption proceedings as evidenced by her attorney’s filing of his appearance just twenty- five (25) days after the filing of the Petition for Adoption.
11. Therefore, because [Grandmother] received the limited notice regarding visitation, [she] was not entitled to notice regarding the final adoption hearing because she was not a party to the proceeding and is also precluded from intervening in the adoption proceedings.
13. Therefore, because [Grandmother] and [S.J.] are precluded from intervening in the adoption, neither party has standing to request for the Order to be set aside.
Court of Appeals of Indiana | Memorandum Decision 19A-AD-1250 | February 26, 2020 Page 10 of 22 ***
II. Motion to Correct Error Pursuant to Trial Rule 59
1. Trial Rule 59(A) states in relevant part that . . . a Motion to Correct Error may be made by the trial court or by any party.
2. Neither [Grandmother] nor [S.J.] are parties to the adoption or guardianship proceedings, nor do either have the right to intervene. Therefore, both individuals are precluded from requesting a Motion to Correct Error.
3. Notwithstanding the preclusion of filing the Motion, the Motion was filed more than 30 days after the final judgment in violation of Trial Rule 59(C).
III. Relief from Judgment or Order Pursuant to Trial Rule 60
2. Like Trial Rule 59, Trial Rule 60 contains the same requirement that one must be a party to file a Motion for Relief from Judgment.
3. As previously stated, [Grandmother] and [S.J.] are precluded from filing a Motion for Relief from Judgment in these proceedings based on the fact that they are not and cannot be parties to the above actions.
4. Assuming, arguendo, that either individual could request a Motion for Relief from Judgment, there was no testimony or evidence provided to support the allegations by [Grandmother] of fraud and/or misrepresentations, as required by Trial rule 60(B),
Court of Appeals of Indiana | Memorandum Decision 19A-AD-1250 | February 26, 2020 Page 11 of 22 to justify setting aside the Dismissal of the Guardianship and/or the Adoption Order. Furthermore, although [Grandmother]’s counsel argued that the Orders should be set aside based on the best interests of the [C]hild, the best interest of the child standard is not a factor in Trial Rule 60(B).
Wherefore, it is hereby ordered, adjudged and decreed that [Grandmother] and [S.J.’s] Motions to Intervene, Correct Error[,] and Motion for Relief from Judgment, and any other outstanding motions not specifically mentioned, be, and are hereby, denied.
Appealed Order at 3-9.6 Grandmother and S.J. now appeal the trial court’s
order denying their motions.
Discussion and Decision I. “Best Interests” [9] We begin by noting that Grandmother and S.J. ostensibly appeal the trial
court’s order denying their motions to intervene, their motions to correct error,
and their motions for relief from judgment. See Notice of Appeal at 2;
Appealed Order. However, the bulk of Grandmother and S.J.’s brief is directed
6 The trial court’s order also sua sponte struck certain GPS records that were attached to Appellants’ proposed order on their Motion to Intervene and Correct Error because they had not been admitted at the hearing on the basis that they were hearsay. Grandmother and S.J. do not challenge the trial court’s ruling on these records.
Court of Appeals of Indiana | Memorandum Decision 19A-AD-1250 | February 26, 2020 Page 12 of 22 to the substantive issues underlying the guardianship and adoption decisions; in
particular, their desire to have both the guardianship and the adoption
proceedings reopened to appoint a guardian ad litem to represent Child’s
allegedly unrepresented best interests and basically start anew. See, e.g.,
Amended Brief of Appellants at 5 (stating one of the issues on appeal as
“[w]hether the trial court erred when it refused to consider the child’s best
interests to appoint a guardian ad litem in her guardianship and adoption
proceedings.”); id. at 17 (appellants arguing that “the trial court erred when it
did not protect the best interests of the child and appoint a guardian ad litem for
her”); id. at 23 (appellants concluding “the trial court should have appointed a
guardian ad litem, heard evidence to determine what was in the [Child’s] best
interests, and then made a decision which fell within the bounds of the
evidence”). Although Grandmother and S.J. allege that the best interests of
Child were never considered in these proceedings, the statutory authority for
both guardianship and adoption proceedings requires that the trial court
consider the best interests of the child before either appointing a guardian or
approving an adoption. See Ind. Code § 29-3-5-4(9) (stating the court shall
appoint as guardian a qualified person most suitable and willing to serve giving
due consideration to, among other things, the best interest of the minor); § 31-
19-11-1(a) (stating the court shall grant a petition for adoption if, among other
things, the adoption is in the best interest of the child). Therefore, to argue that
Child’s best interests were never considered by the trial court is misleading when
what Appellants are actually asserting is that the trial court did not hear what
they consider to be Child’s best interests. Court of Appeals of Indiana | Memorandum Decision 19A-AD-1250 | February 26, 2020 Page 13 of 22 [10] Moreover, as the trial court reminded counsel during the hearing when counsel
repeatedly tried to argue Child’s best interests, if Grandmother and S.J. proved
they were entitled to intervene and if they further proved they were entitled to
relief from the guardianship and adoption judgments, “then we would get to the
evidentiary side of that.” Transcript, Volume II at 19 (emphasis added). That
Guardian “did not establish this burden [of proving Child’s best interests were
served by the guardianship/adoption] at the February . . . or March . . . [motion
to intervene] hearings” is of no consequence because one, Guardian was under
no obligation to do so in this proceeding on a procedural issue where the burden
was on the Appellants to show entitlement to relief, and two, the trial court had
already found that Child’s best interests were proven when it issued the orders in
the guardianship and adoption proceedings that Grandmother and S.J. now
wish to overturn. Amended Br. of Appellants at 13. By repeatedly invoking
Indiana’s emphasis on the best interests of the child, the Appellants,
intentionally or otherwise, have attempted to obfuscate the only issue we are at
liberty to decide based on the procedural posture of this case: whether the trial
court properly denied the motions to intervene, to correct error, and to grant
relief from judgment. And by focusing single-mindedly on the best interests
issue, the Appellants have almost wholly failed to provide any argument
showing error in the trial court’s rulings. We have nonetheless endeavored
herein to address the issues as we discern them from the procedural history of
this case and from our review of the trial court’s thorough order.
Court of Appeals of Indiana | Memorandum Decision 19A-AD-1250 | February 26, 2020 Page 14 of 22 II. Motion to Intervene [11] Appellants’ motion to intervene alleged they were entitled to intervene as of
right under Indiana Trial Rule 24(A) because S.J. may be Child’s biological
father and Grandmother has a right to reasonable visitation, and thus, they
were entitled to notice of the proceedings and have standing to object to the
lack of notice.7 Trial Rule 24(A) provides:
(A) Intervention of Right. Upon timely motion anyone shall be permitted to intervene in an action:
(1) when a statute confers an unconditional right to intervene[.]
The grant or denial of a motion to intervene is within the discretion of the trial
court and we will reverse only for an abuse of that discretion. Granite State Ins.
Co. v. Lodholtz, 981 N.E.2d 563, 566 (Ind. Ct. App. 2012), trans. denied. An
abuse of discretion occurs when the trial court’s decision is clearly against the
logic and effect of the facts and circumstances before it. Id.
[12] Although Trial Rule 24(C) allows intervention for purposes of filing a motion to
correct error or for relief from judgment, a petition to intervene after a judgment
is disfavored. Hiles v. Null, 716 N.E.2d 1003, 1005 (Ind. Ct. App. 1999).
Accordingly, a party seeking to intervene after judgment has been entered must
make a showing of “extraordinary or unusual circumstances[.]” Id. This is
7 Appellants did not invoke the provisions of Trial Rule 24(B) regarding permissive intervention.
Court of Appeals of Indiana | Memorandum Decision 19A-AD-1250 | February 26, 2020 Page 15 of 22 particularly true in adoption cases where we have acknowledged that the
finality of an adoption decree “is desirable in order to prevent the emotional
strain which would otherwise be imposed upon both the adoptive child and
parents, making it difficult for a normal parent-child relationship to develop.”
M.R. ex rel. Ratliff v. Meltzer, 487 N.E.2d 836, 840 (Ind. Ct. App. 1986)
(quotation omitted), trans. denied.
A. Guardianship Proceedings [13] Notice of a guardianship proceeding over a minor must be given to:
(A) The minor, if at least fourteen (14) years of age, unless the minor has signed the petition.
(B) Any living parent of the minor, unless parental rights have been terminated by a court order.
(C) Any person alleged to have had the principal care and custody of the minor during the sixty (60) days preceding the filing of the petition.
(D) Any other person that the court directs.
Ind. Code § 29-3-6-1(3).
[14] We do not have the benefit of most of the filings in the guardianship case, as
they were not provided to this court. See supra, n.4. However, the trial court
found that notice to Child was not required because she is not yet fourteen
years of age; notice was given to both Mother and M.S., the “living parents” of
Court of Appeals of Indiana | Memorandum Decision 19A-AD-1250 | February 26, 2020 Page 16 of 22 Child; Guardian had the principal care and custody of Child for at least sixty
days prior to filing the guardianship petition; and the trial court did not direct
notice be given to any other person. There is no evidence in the record that
would contradict any of these findings and Grandmother does not say under
what provision she believes she was entitled to notice of the guardianship
petition. To the extent S.J. contends he should have received notice because he
may be Child’s biological father, he had taken no steps to establish (or even
assert) his paternity at the time the guardianship petition was filed, and thus
would not have been entitled to notice under this statute as he was not legally a
“parent.”
[15] Moreover, failure to comply with the notice requirements of the guardianship
statute does not automatically invalidate the appointment of a permanent
guardian. Wells v. Guardianship of Wells, 731 N.E.2d 1047, 1050 (Ind. Ct. App.
2000), trans. denied. This is especially true where, as here, the guardianship was
dismissed before Appellants objected to the lack of notice. Because
Grandmother and S.J. have not shown that they were entitled to notice of the
guardianship proceedings, they have not shown a right to intervene in the
guardianship action and the trial court did not err in denying their motions to
intervene.
B. Adoption Proceedings [16] As relevant to this case, notice of adoption proceedings are to be given to a:
person whose consent to adoption is required under IC 31-19-9-1;
Court of Appeals of Indiana | Memorandum Decision 19A-AD-1250 | February 26, 2020 Page 17 of 22 [and]
(3) grandparent described in IC 31-19-4.5-1(3) of a child sought to be adopted.
Ind. Code § 31-19-2.5-3.
[17] Indiana Code section 31-19-9-1, for purposes of this case, requires notice of a
petition for adoption be given to the mother of a child born out of wedlock and
the father of a child whose paternity has been established by a court proceeding
other than the adoption proceeding or by a paternity affidavit, Ind. Code § 31-
19-9-1(a)(2). The “father” referenced in this section is not S.J. S.J. did not
complete a paternity affidavit; M.S. did, and M.S. is therefore the “father”
entitled to notice by this section. To the extent S.J. is trying to establish
paternity by being named in the motion to intervene in the adoption
proceedings that baldly asserts his paternity, such does not entitle him to notice
as his paternity must be established in a proceeding “other than the adoption
proceeding[.]” Ind. Code § 31-19-9-1(a)(2)(A) (emphasis added). Thus, no
statute confers on S.J. an unconditional right to intervene in the adoption
proceeding.
[18] Indiana Code section 31-19-4.5-1(3), found in the chapter concerning “other
persons entitled to notice of adoption,” states that notice must be given to a
grandparent who:
(A) is the grandparent of a child sought to be adopted; and
Court of Appeals of Indiana | Memorandum Decision 19A-AD-1250 | February 26, 2020 Page 18 of 22 (B) has:
(i) an existing right to petition for visitation under IC 31- 17-5; and
(ii) a right to visitation that will not be terminated after the adoption under IC 31-17-5-9;
at a time prior to the date of the filing of the petition.
(Emphasis added.)
[19] As the grandparent of a child who was born out of wedlock, Grandmother did
have an existing right to petition for visitation under Indiana Code chapter 31-
17-5 prior to the date the adoption petition was filed in this case, although she
had not yet taken the proper steps to assert that right. 8 See Ind. Code § 31-17-5-
1(a)(3). However, grandparent visitation rights survive an adoption only if the
child is adopted by a stepparent or a person who is biologically related to the
child. Ind. Code § 31-17-5-9. There is no evidence that A.H. is Child’s
stepparent or biologically related to her. Therefore, section 31-19-4.5-1(3) does
not grant Grandmother the right to notice of the adoption proceedings and
accordingly, she had no standing to intervene pursuant to this statute.
8 Indiana Code section 31-17-5-3(b) provides that a petition for grandparent visitation “must be filed prior to the date a decree of adoption is entered.” Grandmother’s petition for visitation was filed on August 17, 2018, and the adoption decree was entered on October 19, 2018.
Court of Appeals of Indiana | Memorandum Decision 19A-AD-1250 | February 26, 2020 Page 19 of 22 [20] Moreover, even if Grandmother had been entitled to notice, her involvement in
the adoption proceedings would have been limited to the issue of her own
visitation and would not extend to contesting the adoption. Ind. Code § 31-19-
4.5-1.5(1). In other words, notice is intended only to allow a grandparent to
timely file the necessary petition to secure visitation rights, not to allow the
grandparent to intervene in the adoption proceedings to contest the adoption,
which is precisely what Grandmother was attempting to do here. See In re
Adoption of Z.D., 878 N.E.2d 495, 498 (Ind. Ct. App. 2007) (holding that
noncustodial grandparents are not entitled to intervene in adoption
proceedings); see also Krieg v. Glassburn, 419 N.E.2d 1015, 1020 (Ind. Ct. App.
1981) (concluding that the consent of noncustodial grandparents, even those
with visitation rights, is not required for adoption), superseded by statute on other
grounds.
III. Motions to Correct Error and for Relief from Judgment [21] Trial Rule 59, governing motions to correct error, provides that the motion
“may be made by the trial court, or by any party.” Ind. Trial Rule 59(B)
(emphasis added). Likewise, Trial Rule 60, governing motions for relief from
judgment or order, provides that the court “may relieve a party or his legal
representative from a judgment[.]” T.R. 60(B) (emphasis added). Because we
conclude that the trial court did not err in denying the motions to intervene, we
also conclude that it properly denied the motions to correct error and motions
Court of Appeals of Indiana | Memorandum Decision 19A-AD-1250 | February 26, 2020 Page 20 of 22 for relief from judgment, as Grandmother and S.J. were not proper parties to
either action absent intervention.9
Conclusion [22] We are sympathetic to Grandmother’s desire to remain a part of Child’s life,
and we respect the attempt to determine if S.J. is indeed Child’s biological
father. However, Indiana law does not give either Grandmother or S.J. the
right to intervene in these actions, especially at this late date. See In re Adoption
of T.L.W., 835 N.E.2d 598, 601-02 (Ind. Ct. App. 2005) (noting, in the context
of a Trial Rule 60(B) motion to review an adoption order, that the “demand for
prompt action” in a case that “has the potential to impact the lives of young
children” is a “logical and necessary outgrowth of the State’s legitimate interest
in children’s need for permanence and stability”). The trial court did not abuse
its discretion in denying the motions to intervene, and absent the right to
9 A.H. requests an award of appellate attorney’s fees, arguing that the Appellants’ appeal is groundless. A strong showing is required to justify an award of appellate damages, and the sanction is not imposed to punish a mere lack of merit, but something more egregious. Harness v. Schmidt, 924 N.E.2d 162, 168 (Ind. Ct. App. 2010). “[W]e must use extreme restraint when exercising this power because of the potential chilling effect upon the exercise of the right to appeal.” Townsend v. Townsend, 20 N.E.3d 877, 880 (Ind. Ct. App. 2014), trans. denied. Although Appellants’ appeal is ultimately unsuccessful, we cannot say that their arguments are utterly devoid of all plausibility. “Unsuccessful” does not equate to “groundless” and we cannot say that Appellants’ arguments on appeal were “something more egregious” than “mere lack of merit.” See Harness, 924 N.E.2d at 168. As such, we decline A.H.’s request for an award of appellate attorney’s fees. See Matter of Guardianship of Lamey, 87 N.E.3d 512, 527 (Ind. Ct. App. 2017) (providing that appellate attorney’s fees should only be awarded when the arguments on appeal are utterly devoid of all plausibility).
Court of Appeals of Indiana | Memorandum Decision 19A-AD-1250 | February 26, 2020 Page 21 of 22 intervene, in denying the motions to correct error and for relief from judgment.
The judgment of the trial court is affirmed.
[23] Affirmed.
Bradford, C.J., and Altice, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-AD-1250 | February 26, 2020 Page 22 of 22