Matter of Adoption of KT

497 N.W.2d 163, 1992 Iowa App. LEXIS 322, 1992 WL 453882

• Court: Court of Appeals of Iowa
• Decided: December 29, 1992
• Docket: 92-153
• Status: Published

Opinions

HABHAB, Judge.

Martin and Jill Howard¹ are the adoptive parents of Kay², who was born on March 28, 1988. Except for three days after birth, Kay has lived in the Howard home. Their home has provided Kay with a stable environment where her emotional, mental, and physical needs have been provided in a nurturing manner since birth.

Kay’s paternal grandfather now seeks to have the adoption decree set aside. We note that neither the biological mother nor the biological father challenge the final adoption decree.

The district court denied the relief asked for by the grandfather. We affirm the district court and hold that he does not have standing to challenge the adoption decree. Accordingly, we affirm its validity.

FACTS

After Kay’s birth, the natural mother placed Kay with the Iowa Department of Human Services (DHS) for foster care placement. DHS then placed Kay in the foster care of appellees Martin and Jill Howard. Neither Kay’s biological father nor her biological mother has had the care of Kay for any period of time.

On January 5, 1989, Kay was adjudicated a child in need of assistance and, later, the juvenile court entered an order terminating the parental rights of the natural parents.³ It further ordered the guardianship and custody of Kay be transferred to the DHS.

In its order terminating parental rights, the juvenile court made extensive findings. It found that the biological father “has been conspicuous in this action only by his absence.” It further found that the father had taken no affirmative steps to be involved with Kay nor had he contacted her for over a year and a half. The juvenile court noted that the biological father had himself been declared to be a child in need of assistance and a delinquent in juvenile court and “has a history of antisocial behaviors including the sexual molestation of his younger brothers.”

In addition, the juvenile court found that the grandfather’s three older sons, which includes the father of Kay, have all presented “behavioral and/emotional problems necessitating juvenile court intervention with the need for ongoing therapeutic services for one of them.” Further, the juvenile court found one of the grandfather’s children is presently under the jurisdiction of the juvenile court and in placement at the Cherokee Mental Health Institute.

After the juvenile court entered its order terminating parental rights, Martin and Jill Howard filed a petition for adoption of Kay. Consent to -the adoption was granted by Kay’s custodian, the DHS. The district court entered a final adoption decree awarding the child to the Howards.

After the adoption decree was entered, the paternal grandparents filed a petition seeking to set aside the decree of adoption. They asserted they were custodians of Kay, and as custodians, were entitled to notice of the filing of the adoption petition. It appears that when the termination of parental rights order was entered a provision was inserted that provided:

IT IS FURTHER ORDERED that pending adoptive placement of [Kay] ..., [the grandparents] ... continue to be allowed grandparental visitations with [Kay] ... as is agreed upon between the Iowa Department of Human Services case worker assigned to the case, the foster parents and [the grandparents]. ...

(emphasis added). They asked the court to vacate the adoption decree.

In answer to the petition to vacate the adoption decree, Martin and Jill Howard filed a motion to dismiss, asserting the district court lacked subject matter jurisdiction and the grandparents lacked standing to attack the adoption decree. After a hearing on the motion to dismiss, the district court entered a ruling on the petition to vacate the adoption decree. It rejected their claim that they were entitled to notice of the adoption proceedings and concluded they lacked standing to petition for vacation of the adoption decree. It further found any visitation rights granted by the court pursuant to section 598.35(4) were automatically terminated by an adoption decree not involving a stepparent.

The grandfather and stepgrandmother appeal , contending essentially that the adoption decree should be vacated for they did not receive notice of the adoption proceedings.

We affirm.

SCOPE OF REVIEW

In this equity action, our review is de novo. Iowa R.App. P. 4. We have a duty to examine the entire record and adjudicate anew rights on the issues properly presented. In re Marriage of Steenhoek, 305 N.W.2d 448, 452 (Iowa 1981). We give weight to the fact findings of the trial court, especially when considering the credibility of witnesses, but are not bound by them. Iowa R.App. P. 14(f)(7).

ANALYSIS

We agree with the guardian ad litem that while the district court treated the hearing on a motion to dismiss as a hearing on the merits, the necessary issues and facts were before it and are now before us. Therefore, we rule on the merits.

The grandparents claim they have standing to petition for the vacation of an adoption decree because they are custodians of the minor child. We disagree. We affirm the district court’s dismissal of the appellants' petition to vacate the adoption decree.

We are unable to conclude the grandparents were entitled to notice of the adoption petition. Further, it is clear from the language of the termination decree the visitation rights conferred by the juvenile court in favor of the appellant grandparents were to be exercised pending adoptive placement of the minor child.

The record reveals that in the termination order, the court transferred guardianship and custody of Kay to the DHS in accordance with Iowa Code section 232.-117(3)(a) (1989). Kay’s custodian, the DHS, consented to the Howards’ adoption of Kay.

Iowa Code section 232.2(11) specifically defines the term custodian for use in chapter 232 as follows:

11. “Custodian” means a stepparent or a relative within the fourth degree of consanguinity to a child who has assumed responsibility for that child, a person who has accepted a release of custody pursuant to division IV, or a person appointed by a court or juvenile court having jurisdiction over a child. The rights and duties of a custodian with respect to a child are as follows:

a. To maintain or transfer to another the physical possession of that child.

b. To protect, train, and discipline that child.

c. To provide food, clothing, housing, and medical care for that child.

d. To consent to emergency medical care, including surgery.

e. To sign a release of medical information to a health professional.

All rights and duties of a custodian shall be subject to any residual rights and duties remaining in a parent or guardian.

Iowa Code § 232.2(11) (1989). It is clear from this specific definition the appellants do not meet the requirements of custodians. It follows that they were not entitled to notice of the adoption hearing under Iowa Code section 600.11(2) (1989).

The district court relied upon In re A. C., 428 N.W.2d 297 (Iowa 1988) and In re Adoption of Gardiner, 287 N.W.2d 555 (Iowa 1980), and concluded the appellants’ visitation rights were automatically terminated by the adoption decree. We agree.

The appellants’ visitation rights were granted pursuant to the provisions of Iowa Code section 598.35 (1989). This section, as amended, contains substantially all of the provisions of Iowa Code section 600A. 10(3) (1987), which was relied upon by the Iowa Supreme Court in In re A.C., 428 N.W.2d 297 (Iowa 1988), but has since been repealed by the Iowa legislature. In In re A. C., the court held that “grandparent visitation rights allowed pursuant to section 600A.10(3) are automatically terminated in cases of adoption by persons other than stepparents.” Id. at 302 (emphasis added).

In Gardiner, the court stated the following:

The grandparents’ status as grandparents, and hence their right to visitation under § 598.35, arises by virtue of the child’s relationship to the natural parents. When adoption terminated the natural parents’ rights in the child and thereby removes the basis for the grandparents’ rights, the grandparents’ rights also end.

[W]e would attribute a strange intention to the legislature were we to read section 600.13(4) as saying that any parental rights cease but grandparental rights to see and visit the child survive. We are inclined to think the legislative purpose in section 600.13(4), and in the confidentiality sections which accompany it, is to drop a curtain between the child and the blood relatives.

* Sj! ⅜ * * *

We therefore hold that section 598.35 does not authorize grandparental visitation privileges when a child is adopted.

Id. at 558-59 (emphasis added). The court reasoned adopted children should have a “fresh start,” which demands the complete breaking of old ties, including visitation by the natural grandparents. Id.

The appellants claim the case at bar is controlled by the case of Patterson v. Keleher, 365 N.W.2d 22, 25 (Iowa 1985). We disagree. In Patterson, the court distinguished its holding in Gardiner and held a stepparent’s adoption of a minor child did not cut off the natural grandmother’s rights of visitation which were established under a chapter 598A custody decree. Patterson, 365 N.W.2d at 24-25. The case provided in pertinent part:

Gardiner also is distinguishable on its facts. The opinion reasoned that adopted children should have a “fresh start,” which demands the “complete breaking of old ties.” In a case such as Gardiner, which was not a stepparent adoption, the policy of giving the child a “fresh start,” free from interference by past ties, may be compelling. This “fresh start” policy, however, is much less compelling where, as here, the child is adopted only by a stepparent. In a very real sense, in such an adoption, the status of the child changes very little. A natural parent remains a parent. The child’s home does not change. The adults caring for him or her are the same. In many cases the child’s name will not change. If there is any real change, it is primarily in the status of the adopting parent.

Patterson, 365 N.W.2d at 25 (citations omitted).

Patterson is simply an exception for situations where the adopting party is the minor child’s stepparent. Neither Martin nor Jill Howard is Kay’s stepparent. The “fresh start” policy and its underlying rationale are compelling in the case at bar. We find Gardiner and In re A.C. to be controlling.

We hold the visitation rights granted pursuant to Iowa Code section 598.35(4) are automatically terminated by an adoption decree not involving a stepparent. We also hold the appellant grandparents were not custodians entitled to notice of the adoption hearing for the adoption of their grandchild.

In light of the recently-filed dissent, we believe additional comments are necessary. The dissent, for reasons not entirely clear, seems to find standing to enforce visitation, but declines to find standing to set aside the adoption decree.

This result is sought even though the Howards have had Kay’s custody and provided for her entire wants for almost five years now. The disturbing aspect of this position is that neither the biological father nor the biological mother asks for visitation privileges nor do they challenge the adoption decree; and, they should not, for they have not had the care of Kay since her birth and have not made a meaningful attempt to develop a parental relationship.

As the dissent points out, adoption proceedings are purely creatures of statute. In interpreting our statute, our supreme court has held on any number of occasions grandparental rights are derived from parents and when the rights of a natural parent are terminated by adoption the grand-parental rights also end.

The Iowa legislature, in view of supreme court decisions, carved out an exception to grandparental rights when it authorized grandparental rights in stepparent adoptions when there is a finding it is in the best interests of the child and a substantial relationship exists prior to the filing of the adoption petition. But, here we do not have a stepparent adoption. It occurs to us that if this basic law is to be changed it should be done by the Iowa legislature and not through judicial decree.

We want to point out the Howards do not object to the grandparents visiting with Kay. In fact, by their letter of July 25, 1991 (see petitioner’s exhibit 4) they advised the grandparents they were willing to allow visitation between the child and both grandparents. The only thing the How-ards objected to was court-ordered visitation rights when under the circumstances here the biological parents cannot even have.

We recognized previously in our opinion the existence of the district court’s order entered over the objections of the biological mother that the grandparents have visitation rights. But, it cannot go unnoticed that those rights existed “pending adoptive placement.” Adoptive placement has taken place.

If indeed there exists a substantial involvement between the grandparent and the child, we see no reason why visitation should not continue. We in fact encourage it. But the extent of such visitation should be left with the adoptive parents. Why should the rights of adoptive parents to their children be treated any differently than those rights biological parents have? It would seem manifestly unfair to preclude adoptive parents from placing conditions on those who visit their children. For instance, the Howards should be able to say to the grandparents, “You can visit with Kay as long as her biological father, who sexually molested his younger brother, is not present.” This is a right that natural parents have and a right adoptive parents should not be denied.

Like in Gardiner, we would reach a strange conclusion if we were to say the parental rights of the biological parent cease but the grandparental rights to see and visit the child under court decree somehow survive the adoption decree. We believe Kay is indeed entitled to not only a “fresh start” life with the Howards but a continued life with them under the shelter of their love and protection. Adoption decrees must have a finality, and we believe it to be in Kay’s best interest that such finality exists here.

We, of course, agree that public confidence in our court system must be maintained at all costs. Thus, if the grandfather was entitled to notice and did not receive the same, then he is entitled to the relief asked for in his petition.

While we are on the subject of public confidence, we believe it is indispensable to justice in our society that this court address those questions presented to the trial court as they appear in the record. In this respect, we look to the record and the pleadings as filed in the district court.

It is beyond dispute that the grandfather’s petition seeks to vacate the decree of adoption on the grounds that he was entitled to notice and did not receive the same. He framed his petition as a “Petition to Vacate a Decree of Adoption”; at paragraph 11 he asks that the adoption petition be vacated in its entirety and in his prayer he asks the district court to sustain his petition and to "vacate the decree of adoption.” Putting it quite plainly, the grandfather wants to set aside the adoption decree and have it declared void; a relief, incidentally, that even the biological parents do not seek.

The dissent correctly frames the issue when it states that the question is whether a biological grandfather has standing to challenge an adoption decree entered without notice to him. The dissent believes the grandfather does have standing, but as pointed out earlier, the majority of this court, following the reasoning of the trial court, does not believe that he does.

We believe public confidence in our court system would be seriously impaired if we were to follow the reasoning of the dissent, for on the one hand we would conclude he has standing as to visitation rights, a relief not specifically asked for in his petition, but for some unexplained reason, he does not have standing to challenge the adoption decree, which is the relief asked for.

The dissent insists it is following the procedure as outlined in the Patterson case. However, procedurally, Patterson was a contempt action where the issue before the supreme court was whether the adoption decree terminated a grandparent’s visitation rights. Patterson, 365 N.W.2d at 22-23. We have previously distinguished the facts in Patterson from the facts in the case at bar, but we hasten to point out that the supreme court also held in Patterson, “we are not concerned here with what effect failure to give notice had on the adoption.” Id. at 26. In Patterson, the supreme court specifically referred to the case of In re Adoption of Cheney, 244 Iowa 1180, 1189, 59 N.W.2d 685, 689 (1953), a case where the adoption decree was set aside because of failure to give notice to a person having custody of the child at the time of the filing of the adoption petition.

Here, the specific issue is whether the adoption decree should be set aside. We hold that it should not because the grandfather lacks standing.

We affirm the dismissal of the appellants’ petition to vacate the adoption decree. After considering all issues presented, we affirm the district court in all respects.

Costs of this appeal are taxed to the appellants.

AFFIRMED.

All Judges concur except SACKETT and SCHLEGEL, JJ., who dissent.

1 . M.H. and J.H. are appellees’ initials. Martin and Jill Howard are not their given names.

2 . K. is the child’s first initial. Kay is not her given name.

3 .Although the biological mother presented evidence in resistance to termination of parental rights, the biological father did not.