In re the Visitation of Grant

836 P.2d 167, 114 Or. App. 549, 1992 Ore. App. LEXIS 1597

• Court: Court of Appeals of Oregon
• Decided: August 12, 1992
• Docket: 90-CV-0241-MS; CA A70127
• Status: Published

Opinions

BUTTLER, P. J.

This is an appeal from a judgment enforcing an order for grandparent visitation with a 10-year-old child. We reverse.

The child was born to Lane Grant and Alina Grant (mother), who were then husband and wife, on March 3, 1981. In May, 1982, the court dissolved the marriage and granted custody of the child to mother. In November, 1982, mother married Charles Keegan; the two raised the child as if he were their natural child. In January, 1990, Lane died. In June, 1990, Elery Grant, Lane’s father and the child’s paternal grandfather (petitioner), filed a petition for grandparent visitation pursuant to ORS 109.121. On November 15,1990, mother and Keegan filed a petition for the adoption of the child. On November 30,1990, an order was entered granting visitation rights to petitioner. On December 12, 1990, a different judge in the same county entered a decree of adoption.

Mother refused to honor petitioner’s visitation rights, and, in March, 1991, he moved for an order to show cause why mother should not be held in contempt for failing to comply with the visitation order. In May, 1991, he moved for an order to enforce visitation. The two motions were consolidated for hearing, and the court entered a “Judgment and Order enforcing Grandparent Visitation,” from which mother appeals.

Mother contends that, pursuant to ORS 109.041 (l)(b), the adoption decree terminated petitioner’s rights and obligations as a grandparent and, along with that, his right to visitation. ORS 109.041 provides:

“(1) The effect of a decree of adoption heretofore or hereafter granted by a court of this state shall be that the relationship, rights and obligations between an adopted person and the descendants of the adopted person and

“(a) The adoptive parents of the adopted person, their descendants and kindred, and

“(b) The natural parents of the adopted person, their descendants and kindred shall be the same to all legal intents and purposes after the entry of such decree as if the adopted person had been born in lawful wedlock to the adoptive parents and had not been born to the natural parents.

“ (2) Where a person has been or shall be adopted in this state by a stepparent, this section shall leave unchanged the relationship, rights and obligations between such adopted person and descendants of the adopted person and natural parent of the adopted person, who is the spouse of the person who adopted the person, and the descendants and kindred of such natural parent.” (Emphasis supplied.)

Petitioner is “kindred” of the child’s natural father, as the term is used in ORS 109.041.¹ Under the statute, after the entry of the adoption decree, the relationship, rights and obligations between the child and petitioner are “the same to all legal intents and purposes * * * as if the adopted person had been born in lawful wedlock to the adoptive parents and had not been born to the natural parents.” See Hood v. Hatfield, 235 Or 38, 383 P2d 1021 (1963).²

The question is whether, after the death of the child’s natural father and the child’s adoption by the husband of his natural mother, petitioner’s rights to visitation under the preexisting visitation order were altered. ORS 109.121 provides, in part:

“A child’s grandparent may, upon petition to the circuit court, be granted an order establishing reasonable rights of visitation between the grandparent and the child * *

The statute does not mention whether visitation rights would be affected by the adoption of the grandchild. Neither does it make a distinction between “legal” and natural grandparents, although it expressly provides that stepgrandparents are not “grandparents” as used in the statute.³ We conclude, however, that the statute contemplates visitation only by those having the legal status of grandparents. See Mickey v. Beinhauer, supra, n 1, 100 Or App at 532.

Petitioner argues that, because he did not receive notice of the adoption, his rights under the visitation order are not affected by the adoption judgment. Assuming, as he contends, that his preexisting visitation rights are legal rights that cannot be extinguished without notice and an opportunity to be heard, the hearing in this proceeding provided him that opportunity. Although the trial court, in its order enforcing petitioner’s visitation rights, recited the lack of notice, it also held that petitioner’s visitation rights were “not extinguished or terminated by the stepparent adoption,” because the natural father had died and there had been “no consent, relinquishment or termination of the deceased natural parent’s rights allowing stepparent adoption.” The court went on to hold that the child’s visitation with petitioner pursuant to the order was in the child’s best interests and enforced the order.

There are cases in other jurisdictions that have distinguished between an adoption based on the consent of the natural parent or on the termination of the natural parent’s rights and a stepparent adoption after the death of the natural parent. See Preston v. Mercieri, 573 A2d 128 (NH 1990); Mimkon v. Ford, 66 NJ 426, 332 A2d 199 (1975). Although those and other cases cited by petitioner make reasonable and, perhaps, desirable policy arguments in support of the distinction, we believe that it is for the legislature to make those policy decisions. It has not done so. Rather, it has declared that, after an adoption, the relationship and rights of the natural parents and their kindred shall be the same as if the adopted person had been born to the adoptive parents and had not been born to the natural parents.⁴

Therefore, we conclude that the trial court erred in ordering enforcement of the visitation order.

Reversed.

1 Black’s Law Dictionary 783 (5th ed 1979), defines “kin or kindred” as:

“Relation or relationship by hlood or consanguinity. Relatives by blood; by birth. May be either lineal (ascending or descending) or collateral.”

See Mickey v. Beinhauer, 100 Or App 529, 532, 786 P2d 1317, rev den 310 Or 121 (1990), where we held that a grandparent is “kindred” under ORS 109.041(1).

2 Despite the statute’s seemingly unqualified statement concerning the severance of the adopted person’s ties with the natural parent’s family as a consequence of adoption, there are exceptions that are not insignificant. For example, Oregon recognizes the right of a child to inherit through a deceased parent, even though the child is subsequently adopted by a stepparent. ORS 112.175 provides, in part:

“(2) An adopted person shall cease to be treated as the child of the person’s natural parents for all purposes of intestate succession by the adopted person, the issue and kindred of the adopted person and the natural parents, their issue and kindred, except:

<<* * * * *

“(b) If a natural parent of a person dies, the other natural parent remarries and the person is adopted by the stepparent, the adopted person shall continue also to be treated, for all purposes of intestate succession by any person through the deceased natural parent, as the child of the deceased natural parent.”

3 ORS 109.121(7)(a) provides:

“(7) As used in this section:

“(a) ‘Grandparent’ does not include a stepgrandparent.”

4 The dissent’s reliance on ORS 109.119 is misplaced. It applies to any person, including a grandfather, who has established a parent-child relationship with a child and gives that person standing to seek custody of, visitation with or guardianship over the child. Petitioner did not acquire visitation rights under that statute and does not even cite it.