FOR PUBLICATION
ATTORNEY FOR APPELLANT: APPELLEES PRO SE:
DEBORAH M. AGARD SEIJI BRYANT
Law Office of Deborah M. Agard JOSEPH BREWSTER
Indianapolis, Indiana Anderson, Indiana
Mar 27 2013, 9:02 am
IN THE
COURT OF APPEALS OF INDIANA
IN RE THE GUARDIANSHIP OF )
A.J.A. and L.M.A., Minor Children, )
)
J.C., )
)
Appellant-Intervenor, )
)
vs. ) No. 48A02-1204-GU-326
)
J.B. and S.B., )
)
Appellees-Petitioners. )
APPEAL FROM THE MADISON SUPERIOR COURT 2
The Honorable G. George Pancol, Judge
Cause No. 48D02-1011-GU-367
March 27, 2013
OPINION – FOR PUBLICATION
BAKER, Judge
Paternal Grandmother J.C. (Grandmother) appeals from the trial court’s order
vacating the grandparent visitation rights she had enjoyed since 2009 on the basis that the
trial court that initially granted these rights lacked the statutory authority to do so.
Among other things, Grandmother contends that her lack of standing under the
Grandparent Visitation Act was waived when her granddaughters’ guardians, J.B. and
S.B. (collectively, “the Guardians”), failed to appeal the original order. The Guardians
cross-appeal, arguing that even if their objection to the original order was waived,
Grandmother’s appeal is nevertheless moot because S.B., a non-relative, and J.B. have
since adopted the girls, and grandparent visitation rights do not survive adoption by a
non-relative.
We conclude that although Grandmother did lack standing to pursue the original
grandparent visitation order, the Guardians’ objections to her want of standing were
waived when they failed to appeal the original order. We also conclude that
Grandmother’s visitation rights were not terminated by the adoption because the girls
were not adopted only by S.B. but also by J.B., who is their uncle. As a result, we
reverse the judgment of the trial court.
FACTS
On April 23, 2008, M.A. shot his wife multiple times, killing her. Their two little
girls, A.J.A. and L.M.A., were present at the home at the time of the murder. That same
day, M.A.’s half brother, J.B., and J.B.’s partner, S.B., took A.J.A. and L.M.A. into their
2
home. Soon thereafter, J.B. and S.B. filed for guardianship of the girls with the support
of both families.
In May, the Guardians enrolled A.J.A. in counseling with Jean Manis, a licensed
clinical social worker. A.J.A. was diagnosed with Post-Traumatic Stress Disorder.
On June 5, 2008, J.B. asked Grandmother to pick A.J.A. up from a counseling
session. When Grandmother arrived, she took A.J.A. to the parking lot of the jail where
M.A. was being held in pre-trial detention. Grandmother told A.J.A. that her daddy was
living there and that he was safe. Grandmother had A.J.A. get out of the car, and M.A.,
who was outside for recreation time, yelled to A.J.A. that he loved her. Grandmother did
not inform J.B. or S.B. that she took A.J.A. to the jail until after A.J.A. told them.
Consequently, J.B. told Grandmother that she could no longer see the children without
supervision because he could not trust her judgment.
The guardianship was granted on July 3, 2008. On July 10, 2008, Grandmother
filed a motion to intervene in the guardianship and a petition for grandparent visitation
with A.J.A. and L.M.A. Grandmother’s motion to intervene was granted over the
objection of the Guardians, who argued that Grandmother did not have standing to pursue
grandparent visitation because she was the mother of M.A., who was still living.
In August 2008, the parties agreed to a provisional visitation schedule that allowed
for one hour of weekly supervised visitation for Grandmother for a six-week period. The
parties also agreed to start family counseling at Anderson Psychiatric Clinic to try to
facilitate further visitation. The guardianship court approved the provisional agreement.
3
Evidence on Grandmother’s visitation petition was presented by both parties over
four hearings in February, April, and May 2009. On June 1, 2009, the trial court entered
an order granting Grandmother unsupervised grandparent visitation according to a strict
schedule.
After Grandmother’s visitation petition was granted, the Guardians filed a motion
to correct error, arguing that the trial court erred by granting the petition and by failing to
make specific findings of fact and conclusions of law. On July 6, 2009, the trial court
issued an amended order with specific findings of fact and conclusions of law but kept
the remainder of the prior order intact. The Guardians did not appeal the amended order.
The Guardians filed a petition to adopt A.J.A. and L.M.A. in October 2009 after
the maternal aunt of A.J.A. and L.M.A. filed an adoption petition the month before. In
November 2010, the parties agreed to transfer the guardianship case to Madison Superior
Court II to be consolidated with the pending adoption matters. On April 5, 2011,
Grandmother filed a preemptive “Objection to Modification of Grandparent Visitation.”
Appellant’s App. p. 69.
In July 2011, a parenting coordinator was appointed to assist the Guardians in
facilitating visitation with the girls’ maternal aunt and other grandparents. On January 9,
2012, the parenting coordinator submitted documentation to the court stating that on at
least one occasion in December 2011, Grandmother had initiated a telephone
conversation between M.A. and one of the children. The parenting coordinator
recommended that all future grandparent visitation for Grandmother be supervised. On
4
January 19, 2012, a hearing was held on the parenting coordinator’s recommendation.
The court did not restrict Grandmother’s visitation but instead admonished her from
facilitating any type of contact between M.A. and the children during her visitation in the
future.
Later that same day, the Guardians filed a petition to terminate Grandmother’s
visitation. In their petition, the Guardians argued that Grandmother never had standing
under the grandparent visitation statute and that, therefore, the trial court had lacked
subject-matter jurisdiction to enter the original grandparent visitation order. On February
28, 2012, Grandmother filed her response, which alleged that the Guardians had waived
their standing argument by consenting to the provisional visitation agreement and by
failing to appeal the original grandparent visitation order.
On March 7, 2012, the trial court held a hearing on the Guardians’ motion to
terminate grandparent visitation. The attorneys for Grandmother and the Guardians made
legal arguments on the motion to terminate grandparent visitation, but no further
evidence was presented as to the grandparent visitation issue.
On March 26, 2012, the trial court found that the original grandparent visitation
order was void for lack of subject-matter jurisdiction because the court had lacked the
authority to grant Grandmother visitation rights when she was not the parent of the girls’
deceased parent and the marriage of the girls’ parents had not been dissolved at the time
5
of their mother’s death. Based on these conclusions, the trial court vacated the
grandparent visitation order. Grandmother now appeals.1
DISCUSSION AND DECISION
Grandmother challenges the trial court’s order terminating her grandparent
visitation rights on two grounds: (1) Grandmother did have standing because M.A.’s
marriage was dissolved when he murdered his wife; and (2) the Guardians waived their
objection to her lack of standing by failing to appeal the original grandparent visitation
order. The Guardians cross-appeal, claiming that because they have since adopted A.J.A.
and L.M.A. and S.B. is not biologically related to them, Grandmother’s visitation rights,
to the extent they ever existed, cannot survive.
I. Mootness
We first address whether Grandmother’s appeal is moot because A.J.A. and
L.M.A. have since been adopted by J.B., who is their biological father’s half brother, and
S.B., who is J.B.’s partner. The Guardians contend that because S.B. is not biologically
related to A.J.A. and L.M.A., the adoption terminated any grandparent visitation rights
enjoyed by Grandmother.
Indiana Code section 31-17-5-9 provides that grandparent visitation rights survive
the adoption of the child by a stepparent or certain biologically-related relatives,
1
On November 15, 2012, Grandmother filed a motion to strike certain materials from the Guardians’
appendix. This motion is granted in part as to pages 67 to 77 and 91 to 92 of the Guardians’ appendix.
Grandmother also requests attorney fees pursuant to Appellate Rule 66(E) on the basis that the Guardians’
inclusion of these materials was bad faith. We think otherwise and decline Grandmother’s invitation to
award attorney fees.
6
including an uncle. In interpreting the statutory language of the Act, we apply a de novo
standard of review. In re Guardianship of E.N., 877 N.E.2d 795, 798 (Ind. 2007). We
strive to give effect to the intent of the legislature, and we recognize that “the best
evidence of legislative intent is the language of the statute itself.” Cubel v. Cubel, 876
N.E.2d 1117, 1120 (Ind. 2007). “[T]he words in a statute must be given their plain and
ordinary meaning unless otherwise indicated by the statute.” Id.
We note that Indiana Code section 31-17-5-9 does not state that adoption by a
non-relative terminates grandparent visitation; rather, it provides situations when
grandparent visitation rights survive, and adoption by a biologically-related uncle is one
of those situations. The Guardians assert that because J.B. is a half brother rather than a
“full blooded brother” to M.A., he is not an “uncle” under the statute. Appellees’ Br. p.
16. However, the plain and ordinary meaning of “uncle” is “[t]he brother of one’s
mother or father.” American Heritage Dictionary of the English Language 1394 (1978).
And “brother” is defined as “[a] male having the same mother and father as another, full
brother, or one having one parent in common with another, half brother.” Id. at 169.
Accordingly, J.B. is an “uncle” under the statute such that Grandmother’s grandparent
visitation rights, to the extent they existed, survived his adoption of A.J.A. and L.M.A.
The fact that S.B. also adopted the girls is not dispositive. Grandmother’s appeal is not
moot.
II. Grandmother’s Claims
7
As noted above, Grandmother contends that she had standing to pursue
grandparent visitation because M.A.’s marriage was dissolved when he murdered his
wife, and that even if she did not have standing, the Guardians nevertheless waived their
objections to her standing when they failed to appeal the original order.
Today, the Grandparent Visitation Act (the Act) provides the sole remedy for
grandparents seeking court-ordered visitation with their grandchildren.2 Pursuant to the
Act, a grandparent may seek visitation if: (1) the child’s parent is deceased; (2) the
marriage of the child’s parents has been dissolved in Indiana; or (3) the child was born
out of wedlock. Ind. Code § 31-17-5-1. Moreover, grandparent visitation rights may
only be granted if a court determines that the visitation will be in the best interests of the
child. I.C. § 31-17-5-2(a).
For a grandparent to have standing on the basis of the child having a deceased
parent, that grandparent must be the parent of the deceased. In re Visitation of C.R.P.,
909 N.E.2d 1026, 1028 (Ind. Ct. App. 2009). Here, Grandmother is the parent of M.A.,
who is still alive, albeit likely incarcerated at least until the girls reach the age of
majority.3 Nevertheless, it appears that Grandmother was erroneously granted initial
2
Although many of this Court’s decisions refer to the Act as being enacted in derogation of the common
law, this is not entirely correct as there were some common law visitation rights afforded to grandparents
prior to its enactment. See In re Guardianship of Green, 525 N.E.2d 634, 636 (Ind. Ct. App. 1988)
(stating that despite the existence of preexisting common law rights, the courts have since strictly limited
grandparent visitation to the grounds recognized in the Act).
3
M.A. was sentenced to serve sixty years in the Indiana Department of Correction.
8
grandparent visitation rights on the basis of the children’s mother being deceased.
Appellant’s App. p. 51.
Grandmother now argues that the original trial court did not state on what basis it
found she had standing and that it could have granted her standing on the basis that her
son’s marriage was dissolved by virtue of him killing his wife. Because Grandmother did
not raise this argument in the underlying proceedings, it is waived on appeal. See Hite v.
Vanderburgh Cnty. Office of Family & Children, 845 N.E.2d 175, 180 (Ind. Ct. App.
2006).
Waiver notwithstanding, however, Grandmother’s argument still fails. It is true
that “dissolved” is not defined under the Act. However, we think that in context, the term
clearly refers to a marriage being terminated by a final dissolution decree. See Ind. Code
§ 31-9-2-41 (defining “dissolution decree” as a “judicial decree . . . [that] has the effect of
terminating the marriage and restoring the parties to the state of unmarried persons”); Ind.
Code § 31-15-2-16(d) (referring to a dissolution decree as a “decree that dissolves the
marriage”). Moreover, to give this subsection the interpretation desired by
Grandmother—that a marriage is dissolved when one of the parents is killed by the
other—would render the first subsection meaningless. See Pabey v. Pastrick, 816 N.E.2d
1138, 1148 (Ind. 2004) (stating that courts should not presume that the legislature would
enact a useless provision and thus should attempt to give effect to every word of a
statute). Therefore, Grandmother had no standing to seek grandparent visitation under
the Act.
9
As noted above, however, Grandmother contends that the Guardians’ failure to
appeal the original visitation order results in a waiver of her lack of standing under the
Act. More particularly, Grandmother asserts that her lack of standing resulted only in the
trial court having no jurisdiction over the case as opposed to no subject-matter
jurisdiction. Our Supreme Court has disapproved of the use of the term “jurisdiction over
the case” because it confuses subject-matter jurisdiction, which cannot be waived, with
legal errors that may be waived. K.S. v. State, 849 N.E.2d 538, 540-41 (Ind. 2006).
According to K.S., where subject-matter jurisdiction and personal jurisdiction exist, “a
court’s decision may be set aside for legal error only through direct appeal and not
through collateral attack.” Id. at 540.
Subject-matter jurisdiction exists where “a court has jurisdiction over the general
class of actions to which a particular case belongs.” Troxel v. Troxel, 737 N.E.2d 745
N.E.2d 745, 749 (Ind. 2000). Here, the trial court undoubtedly had jurisdiction to hear
grandparent visitation cases generally. See Ind. Code § 33-29-1-1.5(1) (stating that
superior courts have original jurisdiction over all civil and criminal cases). In addition,
there is no question that the court had personal jurisdiction over the parties, with the
Guardians submitting to the authority of the court by filing the initial guardianship
proceedings and Grandmother submitting to the court’s authority by intervening in those
proceedings. See Ind. Trial Rule 4(A).
Nevertheless, the Guardians maintain that the initial grandparent visitation order
was void ab initio because the legislature never intended for Grandmother to have
10
standing to pursue visitation. The Guardians seek to distinguish K.S. by directing us to
M.S. v. C.S., 938 N.E.2d 278 (Ind. Ct. App. 2010). In M.S., this Court held that a joint
custody order between a parent and a third party was void because the trial court lacked
the statutory authority to enter such an order “under any set of circumstances, and the
error was therefore impossible to cure.” 938 N.E.2d at 284.
Although M.S. was decided after K.S., it failed to address any implications that
K.S. might have had on its analysis and instead relied upon pre-K.S. reasoning from
earlier opinions of the Court of Appeals. In light of the above-quoted language from
K.S., however, we decline to follow the paradigm for void and voidable judgments as
explained in M.S. Accordingly, we conclude that although the initial grandparent
visitation order may have been erroneous, the Guardians nevertheless waived their
objections to Grandmother’s standing when they failed to appeal.
Notwithstanding this conclusion, we note that the trial court “may modify an order
granting or denying [grandparent] visitation rights whenever modification would serve
the best interests of the child.” I.C. § 31-17-5-7. Given that nearly a year has passed
since the grandparent visitation order has been vacated, it may be wise for the trial court
to schedule a hearing sua sponte on the children’s best interests to determine whether and
to what extent grandparent visitation should occur in the future.
The judgment of the trial court is reversed.
RILEY, J., and BARNES, J., concur.
11