J.B. and P.B. v. J v. and K v. (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: May 23, 2018
• Docket: 49A02-1712-MI-2754
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be May 23 2018, 8:49 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEES Jonathan D. Harwell Jennifer Hanley Harwell Legal Counsel LLC Hanley Myhls Attorneys at Law Indianapolis, Indiana Indianapolis, Indiana

AMICUS CURIAE Ron Mitchell Jeffersonville, Indiana

IN THE COURT OF APPEALS OF INDIANA

J.B. and P.B., May 23, 2018 Appellants-Petitioners, Court of Appeals Case No. 49A02-1712-MI-2754 v. Appeal from the Marion Superior Court J.V. and K.V., The Honorable John M.T. Chavis, Appellees-Respondents. II, Judge Trial Court Cause No. 49D05-1708-MI-31048

Brown, Judge.

Court of Appeals of Indiana | Memorandum Decision No. 49A02-1712-MI-2754 |May 23, 2018 Page 1 of 8 [1] J.B. and P.B. (together, “Grandparents”) appeal the trial court’s dismissal of

their petition for grandparent visitation and denial of their motion to correct

error. We affirm.

Facts and Procedural History

[2] L.D. was born in November 2003, and E.D. was born in April 2005. P.B. is the

biological mother of the children’s biological father and J.B. is married to P.B.

The children’s father, P.B.’s son, died in December 2011. The children were

subsequently placed in the care of J.V. and K.V. (together, “Adoptive

Parents”), the maternal aunt and uncle of the children.

[3] On September 25, 2013, Adoptive Parents filed a petition for adoption under

cause number 49D08-1309-AD-36107 (“Cause No. 107”). On October 7, 2013,

Grandparents filed a motion to contest and cross-petition for adoption. In their

cross-petition, Grandparents alleged that they are the children’s paternal

grandparents and that “the adoptive children’s siblings, from the same father

but different mother, currently reside with [Grandparents] and would be

reunited with the children.” Appellees’ Appendix Volume 2 at 9. They also

alleged that the father of the adoptive children is deceased and that, “[d]uring

his life and for a period of time after his death the adoptive children resided

with [Grandparents].” Id.

[4] On April 30, 2014, the court issued an order stating that it had held a hearing

on the petitions for adoption on March 24 and 25, 2013, and denying

Grandparents’ cross-petition for adoption. Neither party states that an appeal

Court of Appeals of Indiana | Memorandum Decision No. 49A02-1712-MI-2754 |May 23, 2018 Page 2 of 8 of that decision was filed. On June 19, 2014, the court entered a Final

Adoption Decree stating that a final hearing on Adoptive Parents’ petition for

adoption was held on that day and ordering that the children be adopted by

Adoptive Parents. In the Decree the court found that the children were wards

of the Marion County Department of Child Services and had resided with

Adoptive Parents since December of 2012 and that on September 18, 2013, the

children’s mother consented to the children’s adoption by Adoptive Parents.

[5] On August 11, 2017, Grandparents filed a petition for grandparent visitation in

the cause from which this appeal arises. Grandparents’ petition alleged that,

since the adoption, Adoptive Parents have refused to permit them any

visitation, and that prior to the children’s father’s death in December 2011, he

had custody of the children and Grandparents regularly had visits with them.

The petition also alleged that after December 2011 Grandparents regularly had

visits with the children for two years at the Children’s Bureau; that

Grandparents have continuously attempted communication with the children

and their attempts have been endlessly obstructed; and that Grandparents have

had a meaningful relationship with the children and for years exercised

consistent visitation with them. An entry in the chronological case summary

dated September 19, 2017, provides “[c]ounsel to provide case law or statutory

support for grandparent visitation in an adoption case, where the visitation

requested is post-adoption proceeding and the parent was deceased prior to the

conclusion of the contested adoption,” and Grandparents subsequently filed a

notice of statutory authority for grandparent visitation, citing Ind. Code § 31-17-

Court of Appeals of Indiana | Memorandum Decision No. 49A02-1712-MI-2754 |May 23, 2018 Page 3 of 8 5-1(a)(1), Ind. Code § 31-17-5-9(2), and Baker v. Lee, 901 N.E.2d 1107 (Ind. Ct.

App. 2009). Appellants’ Appendix Volume 2 at 4.

[6] On October 16, 2017, the court entered an order which states it “now denies the

petition [for grandparent visitation] and rules that this case be dismissed with

prejudice for lack of standing.” Id. at 12. The order states that the children

were adopted by Adoptive Parents in 2014; Grandparents did not petition for

grandparent visitation until August 11, 2017; and “there were no previous

orders of grandparent visitation issued prior to the date of the adoption” and, as

such, Grandparents were without standing to pursue grandparent visitation. Id.

Grandparents filed a motion to correct error, which included an attached

exhibit containing visitation records from the Children’s Bureau, and argued

that they had engaged in visitation for nearly two years prior to Adoptive

Parents’ unilateral termination of visitation. The court denied the motion to

correct error.

Discussion

[7] The issue is whether the trial court erred in dismissing Grandparents’ petition or

abused its discretion in denying their motion to correct error. We review

rulings on motions to correct error for an abuse of discretion. Speedway

SuperAmerica, LLC v. Holmes, 885 N.E.2d 1265, 1270 (Ind. 2008), reh’g denied.

We review a trial court’s dismissal for failure to state a claim de novo as it

involves a question of law. See Baker, 901 N.E.2d at 1109. Grandparents

historically had no common-law right to visitation with their grandchildren.

Court of Appeals of Indiana | Memorandum Decision No. 49A02-1712-MI-2754 |May 23, 2018 Page 4 of 8 Jocham v. Sutliff, 26 N.E.3d 82, 85 (Ind. Ct. App. 2015), trans. denied.

Grandparent visitation is governed by Ind. Code §§ 31-17-5, which is the

exclusive basis for a grandparent to seek visitation. Id. Because the

grandparent visitation statutes were enacted in derogation of the common law,

they must be strictly construed. Id. To seek visitation rights, a grandparent

must have standing as prescribed by the statutes; otherwise, the petition must be

dismissed as a matter of law. Id.

[8] Ind. Code § 31-17-5-1(a) provides: “A child’s grandparent may seek visitation

rights if: (1) the child’s parent is deceased; (2) the marriage of the child’s parents

has been dissolved in Indiana; or (3) subject to subsection (b), the child was

born out of wedlock.”1 Ind. Code § 31-9-2-77 provides that “‘[m]aternal or

paternal grandparent’, for purposes of IC 31-17-5, includes: . . . the parent of the

child’s parent.” Ind. Code § 31-17-5-3(a) provides that “[a] proceeding for

grandparent’s visitation must be commenced by the filing of a petition” and

describes the information the petition must include. Ind. Code § 31-17-5-3(b)

provides: “A petition described in subsection (a) must be filed prior to the date a

decree of adoption is entered.”2 Ind. Code § 31-17-5-9 provides: “Visitation

rights provided for in section 1 or 10[3] of this chapter survive the adoption of

1 Ind. Code § 31-17-5-1(b) provides: “A court may not grant visitation rights to a paternal grandparent of a child who is born out of wedlock under subsection (a)(3) if the child’s father has not established paternity in relation to the child.”

2 Subsection (b) was enacted by Pub. L. No. 16-2017, § 1 (eff. Jul. 1, 2017). 3 Ind. Code § 31-17-5-10 is applicable where the marriage of the child’s parents has been dissolved in another state.

Court of Appeals of Indiana | Memorandum Decision No. 49A02-1712-MI-2754 |May 23, 2018 Page 5 of 8 the child by any of the following: . . . (2) A person who is biologically related to

the child as: . . . (C) an aunt; [or] (D) an uncle . . . .”

[9] Grandparents argue that, although their petition for visitation was not filed

prior to the decree of adoption, at the time of the decree they were seeking to

adopt the children and contesting the Adoptive Parents’ petition for adoption.

They argue that they did not know before the adoption decree was entered who

would be granted adoption of the children. Grandparents further argue that,

prior to the decree of adoption, they did not need to seek grandparent visitation

as they had been engaging in visits with the children for over two years and had

no reason to believe those visits would stop if they did not obtain custody in the

adoption proceedings. Ron Mitchell filed a brief as amicus curiae in support of

Grandparents’ position that Grandparents have standing to seek grandparent

visitation subsequent to the adoption of the children by their aunt and uncle and

argues in part that Ind. Code § 31-17-5-3(b) has no application as the decree of

adoption in this case occurred before subsection (b) was added to the statute.

[10] Adoptive Parents respond that they became the legally-recognized parents of

the children on June 19, 2014, and that P.B. was no longer the grandmother of

the children after that date. They argue that P.B. had notice of the adoption

and “failed to make her request for grandparent visitation at any point during

the almost two months before the adoption of the children by [Adoptive

Parents] was granted” and that, “[h]ad she done so, she perhaps would have

obtained a court order for visitation that might have survived the adoption.”

Appellees’ Brief at 8.

Court of Appeals of Indiana | Memorandum Decision No. 49A02-1712-MI-2754 |May 23, 2018 Page 6 of 8 [11] We observe that Ind. Code § 31-17-5-3(b) became effective on July 1, 2017,

after the decree of adoption was entered in 2014 under Cause No. 107. See Pub.

L. No. 16-2017, § 1 (eff. Jul. 1, 2017). Thus, at the time the decree of adoption

was entered and during the adoption proceedings under Cause No. 107 in

which Grandparents participated, subsection (b) was not a part of Ind. Code §

31-17-5-3. Generally, statutes are to be given prospective effect only, unless the

legislature unequivocally and unambiguously intended retrospective effect as

well. Indiana Bureau of Motor Vehicles v. Watson, 70 N.E.3d 380, 385 (Ind. Ct.

App. 2017) (citations omitted). However the case law interpreting Ind. Code §

31-17-5-9, in effect since 1997, is clear that visitation rights must be established

prior to a decree of adoption in order to “survive” the adoption of the child. See

Jocham, 26 N.E.3d at 86-88 (observing that Sutliff as the child’s biological

grandparent had no existing grandparent visitation rights at the time of the

adoption and holding that, “[b]ecause Sutliff had not sought visitation rights

pursuant to section 31-17-5-1 prior to the adoption, no right to visitation had

already been given by a court, and she had no visitation rights for section 31-17-

5-9 to protect”); see also In re Visitation of M.L.B., 983 N.E.2d 583, 585 (Ind.

2013) (noting that, “[b]ecause the visitation order had been issued first, it

survived termination of the Father’s rights under Indiana Code section 31-17-5-

9”); Baker, 901 N.E.2d at 1108 (noting the trial court entered an order

approving of grandparent visitation prior to the adoption of the children and

that the right to visitation survived the adoption pursuant to Ind. Code § 31-17-

5-9). Grandparents had notice of the denial of the cross petition for adoption

for nearly two months prior to the decree of adoption entered in favor of Court of Appeals of Indiana | Memorandum Decision No. 49A02-1712-MI-2754 |May 23, 2018 Page 7 of 8 Adoptive Parents and did not file a petition for grandparent visitation. Further,

they waited over three years after the decree of adoption was entered to file

their petition for grandparent visitation. Under the circumstances, we find no

abuse of discretion by the trial court.

Conclusion

[12] For the foregoing reasons, we affirm the order of the trial court dismissing

Grandparents’ petition for grandparent visitation.

[13] Affirmed.

Bailey, J., and Crone, J., concur.

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