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.
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[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
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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-
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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.
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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.
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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.
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[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
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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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