J.S. v. J.D.

941 N.E.2d 1107, 2011 Ind. App. LEXIS 112

• Court: Indiana Court of Appeals
• Decided: February 7, 2011
• Docket: No. 29A05-1004-DR-204
• Status: Published

Opinions

OPINION

BRADFORD, Judge.

In this appeal from a dissolution action, Appellants-Respondents J.S., who is A.H.'s biological mother, and CH. and MH., who are AH.'s adoptive parents, challenge the trial court's granting a visitation petition in favor of A.H.'s biological father, Petitioner-Appellee J.D. Upon appeal, the Respondents challenge the trial court's judgment on a number of grounds, one of which we find dispositive: whether a biological parent who has consented to the adoption of his child but who wishes to petition for visitation must follow the procedures outlined in Indiana Code section 31-19-16-2 (2009). Concluding that seetion 31-19-16-2 is the exclusive means for asserting visitation rights, and that J.D. did not follow the procedures listed therein, we reverse and remand with instructions to vacate the trial court's grant of visitation.

FACTS AND PROCEDURAL HISTORY

J.D. and J.S. are the biological parents of AH., who was born on January 23, 2002. At the time of A.H.'s birth, J.D. and J.S. were in high school and unmarried. AH. was born with a congenital heart defect requiring medical care and expense. J.S.'s parents and A.H.'s maternal grandparents, C.H. and MH., adopted A.H. on February 6, 2002, and provided medical insurance and childeare for her, along with other support, financial and otherwise. J.D. does not dispute that he consented to A.H.'s adoption by C.H. and M.H. He contends, however, that he did so because of C.H. and M.H.'s ability to provide insurance and their alleged reassurances that he would continue to be "daddy" to A.H.

Following A.H.'s birth, J.S. lived with her at C.H. and M.H.'s home. J.D. visited AH. there. AH. was included in both J.S.'s and J.D.'s family celebrations, and she referred to them as "Mom" and "Dad," respectively. According to J.D., he did not have to ask for permission from C.H. and MH. to take A.H. various places.

J.D. and J.S. were married in May 2005. Following their marriage, J.D. and J.S. resided with A.H. in C.H. and M.H.'s home for some months. Thereafter, CH. and M.H. built a home and rented it to J.D. and J.S., who moved there with A.H. J.D. and J.S. had a second child, E.D., on January 18, 2007. |

On July 16, 2007, J.D. and J.S. filed a petition to adopt A.H., alleging that they had placed A.H. for adoption with C.H. and M.H. because they were not in a position to provide for her but that their situation had changed dramatically. In an affidavit attached to the petition, M.H. and C.H. consented to this adoption. The adoption was never finalized.

J.D. and J.S. experienced difficulties in their marriage. In approximately August 2008, J.S. filed a dissolution action against J.D. J.S. did not name A.H. in the dissolution petition. Af some point following the dissolution petition but before the dissolution decree was entered, the adoption petition was dismissed without the knowledge or consent of J.D.

During the pendency of the dissolution proceedings, J.D. exercised regular visitation with A.H. at the same time he exercised visitation with E.D. At some later point, however, M.H. restricted J.D.'s access to A.H. and threatened to terminate it if J.D. did not sign the divorcee decree.

The marriage of J.D. and J.S. was dissolved on March 10, 2009, pursuant to a settlement agreement. The settlement agreement did not mention or provide for J.D. to have visitation with A.H. Nevertheless, J.D. continued to exercise visitation with A.H., which generally occurred when he visited with E.D. There were times, however, when J.D.'s visitation with AH. was terminated for certain periods of time.

J.S. began dating B.S. in August 2008 and married him in 2009. Disputes regarding J.D.'s visitation with A.H. were partly attributable to B.S.'s participation in the exchanges. Shortly after J.S. and B.S. married, J.S. and B.S. filed a petition for the adoption of AH., to which C.H. and M.H. consented. This petition was still pending at the time of the trial court's judgment in the instant action. J.D.'s visitation with A.H. has been limited since J.S. and B.S.'s marriage.

On August 10, 2009, J.D. filed a petition to establish visitation with A.H. On that same date, J.D. additionally filed a petition for joinder of necessary parties, contending that C.H. and MH. were necessary parties to his visitation petition. On August 13, 2009, J.S. filed a motion to dismiss J.D.'s petitions on the grounds that the trial court lacked authority in J.D. and J.S.'s dissolution proceedings to issue orders pertaining to A.H., who was the legal adoptee of C.H. and MH.

Following a November 24, 2009 hearing, the trial court granted J.D.'s petition to join C.H. and MH. as necessary parties. The trial court held a. December 30, 2009 hearing on the merits of the visitation petition. On March 30, 2010, the court issued a judgment granting J.D.'s visitation petition on the grounds that, pursuant to Collins v. Gilbreath, 403 N.E.2d 921 (Ind.Ct.App.1980), J.D. qualified as a third-party nonparent custodian whose court-ordered visitation with A.H. was in her best interests.¹ The trial court specifically declined to address the merits of the adoption decree, which was apparently the subject of a separate pending action, and specifically stated that its decision had no effect on the decree's existence. This appeal follows.

DISCUSSION AND DECISION

Upon appeal, Respondents challenge the trial court's grant of visitation. Among other grounds, Respondents argue that J.D. is limited to the procedures set forth in Indiana Code section 81-19-16-2 to establish postadoption visitation with A.H.

I. Standard of Review

In the instant case, the trial court entered findings of fact and conclusions thereon sua sponte. In such cases, the specific findings control only as to the issues they cover, while a general judgment standard applies to any issues upon which the court has not found. Harris v. Harris, 800 N.E.2d 930, 934 (Ind.Ct.App.2003), trams. denied. Thus, in reviewing this judgment, we must apply a two-tiered standard. Id. First, we determine whether the evidence supports the findings and second, whether the findings support the judgment. Id. In deference to the trial court's proximity to the issues, we will reverse a judgment only when it is shown to be clearly erroneous. Id. A judgment is clearly erroneous when it is unsupported by the findings of fact and conclusions entered on the findings. Id. In determining the validity of the findings or judgment, we consider only the evidence favorable to the judgment and all reasonable inferences to be drawn therefrom, and we will not reweigh the evidence or assess the credibility of witnesses. Id. However, although we defer substantially to findings of fact, we do not do so to conclusions of law. Id. We evaluate questions of law de novo and owe no deference to a trial court's determinations of such questions. Id.

II. Analysis

There is no dispute that A.H. is J.D.'s biological child and that she was adopted by C.H. and MH. with J.D.'s stated consent. Indiana Code section 81-19-16-2, which provides means for .a birth parent to obtain postadoption visitation privileges, states as follows:

A court may grant postadoption contact privileges if:

(1) the court determines that the best interests of the child would be served by granting postadoption contact privileges;

(2) the child is at least two (2) years of age and the court finds that there is a significant emotional attachment between the child and the birth parent;

(3) each adoptive parent consents to the granting of postadoption contact privileges;

(4) the adoptive parents and the birth parents:

(A) execute a postadoptlon contact agreement; and

(B) file the agreement with the court;

(5) the licensed child placing agency sponsoring the adoption and the child's court appointed special advocate or guardian ad litem appointed under IC 31-32-38 recommends to the court the postadoption contact agreement, or if there is no licensed child placing agency sponsoring the adoption, the county office of family and children or other agency that prepared an adoption report under IC 31-19-8-5 is informed of the contents of the postadoption contact agreement and comments on the agreement in the agency's report to the court; (6) consent to postadoption contact is obtained from the child if the child is at least twelve (12) years of age; and (7) the postadoption contact agreement is approved by the court.

The trial court specifically indicated that its judgment did not affect the adoption decree, and proceedings relating to the adoption and its validity were a separate action. Accordingly, there is no dispute that the court's grant of visitation was not made 'pursuant to the above procedures.

Yet the plain language of section 31-19-16-2 clearly applied. When interpreting a statute, the first step is to determine whether the legislature has spoken clearly and unambiguously on the point in question. City of N. Vernon v. Jennings NW Regional Utils., 829 N.E.2d 1, 4 (Ind.2005). When a statute is clear and unambiguous, we need not apply any rules of construction other than to require that words and phrases be taken in their plain, ordinary, and usual sense. Id. Clear and unambiguous statutes leave no room for judicial construction. Id. In the instant case, A.H. was adopted, her birth parent was J.D., and J.D. wished to establish postadoption visitation. These are the very cireumstances for which section 31-19-16-2 provides.

Moreover, this court has previously concluded, in In re Visitation of A.R., 723 N.E.2d 476, 479 (Ind.Ct.App.2000), that section 31-19-16-2 is the exclusive means for seeking relief. AR. involved a birth parent who, like J.D., maintained contact with a biological child after consenting -to the child's adoption, was subsequently denied contact, and sought to establish visitation.² As in the instant case, the biological parent in A.R. petitioned for postadoption visitation as a nonparent third party and did not follow the procedures in section 31-19-16-2. Id. at 478. The AR. court rejected the parent's petition. Id. at 479. In doing so, the A.R. court looked to the legislative history of section 31-19-16-2, which demonstrated that the General Assembly had intended to create a very "specific and significant exception to the general rule of total divestiture of a birth parent's rights, while at the same time demonstrating that the post-adoption rights of birth parents differ significantly from those of other parties." Id. Based upon this history, the A.R. court concluded that section 31-19-16-2 was the exclusive means by which a birth parent could acquire postadoption visitation rights. Id. In reaching this conclusion, the A.R. court specifically rejected the argument that the birth parent should be permitted to petition for visitation as a nonparent third party. See id. ("[Wle do not believe that the legislature intended that a birth parent's failure to comply with Ind. Code § 31-19-16-2, resulting in the forfeiture of his or her newly-created right to post-adoption contact, should subsequently act as a means for that birth parent, under the guise of a non-parent third party, to cireumvent the statute's requirements.").

Here, the judgment at issue grants J.D. visitation pursuant to Collins, which is not an available avenue of relief given the clear statutory procedures for postadoption visitation by a birth parent. See A.R., 723 N.E.2d at 479. We must therefore vacate that visitation order. In reaching this holding, we are mindful that the trial court, in assessing the facts, believed AH.'s best interests would be served if she maintained her relationship with J.D., whom she has known to be her father. To the extent the visitation J.D. seeks with AH. is available, it must be pursued under section 31-19-16-2. *

The judgment of the trial bouljig is reversed, and the cause is remanded with instructions to vacate the visitation order.

KIRSCH, J., concurs. CRONE, J., concurs in result with opinion.

1 . In certain cases, a third party non-parent is eligible for visitation upon demonstrating the existence of a custodial and parental relationship and that visitation would be in the child's best interest. Worrell v. Elkhart County Office of Family and Children, 704 N.E.2d 1027, 1028 (Ind.1998) (citing Collins v. Gilbreath, 403 N.E.2d 921, 923-24 (Ind.Ct.App.1980)).

2 . The mother in A.R. was initially awarded custody of her then six-year-old child following dissolution proceedings with the child's father. A.R., 723 N.E.2d at 478. Approximately two years later, the child's father was awarded custody, and the mother consented to the father's new wife's adoption of the child. Id. Following the adoption proceedings, the mother was permitted at least once-per-month visitation for approximately nine months, at which point she was denied contact. Id.