Matter of Adoption of KT

SACKETT, Judge

(dissenting).

I dissent.

I would hold the adoption did not affect the validity of a district court decree that granted the grandfather visitation rights. I would find the grandfather has standing to challenge the adoption proceedings. I would reverse the order dismissing his petition and remand to the trial court for the limited purpose of holding a hearing to specify the extent of the visitation. I would affirm the order dismissing the petition of the stepgrandmother. I would not set aside the adoption decree. I would only make it subject to the grandfather’s visitation rights.

The question in this case is whether a biological grandfather who has been given visitation rights with a child by a district court has standing to challenge an adoption decree entered without notice to him. The decree made his granddaughter the legal child of long-term foster parents, but failed to recognize visitation rights that had been granted to him by the district court under Iowa Code section 598.35. The grandfather’s visitation rights have never been repealed by a district court. The grandfather has had substantial involvement with the child since her birth. The district court, in establishing his grandparent visitation rights, found his visitations with the child were in her best interest. The grandfather had been granted grandparent visitation rights under Iowa Code section 598.35 before the child’s parental rights were terminated. When the child’s parental rights were terminated, the termination court had found, in making any decision concerning the adoptive placement, the court would give weight and priority to the likelihood the adoptive parents would allow the visitations to continue.

I have serious problems with the majority decision finding the grandfather has no standing. I think in arriving at its decision the majority has incorrectly interpreted current Iowa statutory and case law and has arrived at a decision that jeopardizes the rights of children to maintain ties with biological relatives who, like this grandfather who had the district court establish his visitation rights, have exercised the rights and made considerable and conscious efforts to contribute to the children’s welfare.

One of the disturbing things about this case is that the State and the foster parents, despite prior court orders establishing the grandfather’s visitation rights and finding visitation was in the child’s best interest and determining any decision concerning adoptive placement, would give priority to the adoptive parents allowing the grandfather’s visitation to continue, elected not to notify the grandfather of the pending adoption petition and conducted the adoption hearing without notice to him. Consequently, the adoptive court was without the benefit of the grandfather being a part of the proceedings. This grandfather did not know a court was in the process of cutting off visitation rights he had exercised with his granddaughter for over two years until after the adoption decree was filed, and the attorney for the former foster parents, now the adoptive parents, said there would be no further visitation rights.

My review of the orders convinces me a person in the grandfather’s position would not expect a court to cut off his visitation rights with his grandchild without notifying him of the hearing and giving him the opportunity to be heard. While, as will be discussed later in this dissent, I clearly find the grandfather was entitled to notice, I also find that when hearings such as the adoption hearing are conducted without notice to persons vitally affected, we undermine the public confidence in the courts and our system of justice. It is disappointing to me that the State sought to condone the adoption being handled in this manner.

*169But irrespective of my strong personal feelings about conducting such proceedings without notifying the grandfather, I also find the majority, in attempting to establish what it calls a “fresh start” for this child, has not followed existing case and statutory law and has deprived the child of an established and beneficial link to her biological family.

The legislature in enacting section 598.35 recognized the importance of grandparents to children. I have found, in examining cases where biological parents do not have adequate parenting skills, that grandparents frequently are able to provide a safety net and stability for children. Furthermore, there is strong evidence that children suffer when biological family ties are severed.

Even if “fresh starts” are the desired result, and my continued study convinces me they may not be the desired result, this is clearly not a fresh start situation.

The adoptive parents took this child as a foster child in April 1988. They did not adopt her until June 1991. During the time the child was in the adoptive parents’ foster care, the grandfather exercised his visitation. Therefore, if the grandfather is to continue to have visitation, the child’s status will not change. See In re A.C., 428 N.W.2d 297, 300 (Iowa 1988). The court, in talking about a fresh start policy, says, in part, “This ‘fresh start’ policy, however, is much less compelling where, ... the status of the child changes very little.... The child’s home does not change. The adults caring for him or her are the same.... If there is any real change, it is primarily in the status of the adopting parent.” Id. at 300-01.

The district court in a February 5, 1989 order established visitation rights for the grandfather. After establishing the grandfather had the right of visitation, the district court deferred to the juvenile court the setting and enforcing visitation times and indicated the district court would become involved in that issue only if the juvenile court no longer had jurisdiction. The juvenile court decree terminating the biological parents’ parental rights did not terminate the grandfather’s visitation rights, nor could it have terminated the visitation order because the visitation order had been entered by the district court.

This case, therefore, is controlled by the case of Patterson v. Keleher, 365 N.W.2d 22 (Iowa 1985). Patterson determined that an order for visitation rights is a “custody determination” under Iowa Code section 598A.12 and binds all persons who have been served in this State until that determination is modified pursuant to law. Id. at 25. The Iowa Department of Human Services appeared and participated in the district court proceeding. Consequently, it was bound by the district court order of February 5, 1989, providing, “The petitioner, D.D., is granted grandparent visitation with the child,.... ” Therefore, the order terminating parental rights and granting custody to the Department of Human Services was subject to the visitation provisions of the district court decree, and the department was bound to accord the grandfather these rights until they were modified. See Patterson, 365 N.W.2d at 25.

The adoptive parents should also be bound by the visitation order. The adoptive parents did not appear at the hearing in district court establishing the grandfather’s visitation. The adoptive mother did appear at the termination hearing. The adoptive parents were well aware of the visitation provisions, because the child went from their home for visitation. Under the directive of Patterson, and In re Guardianship of Nemer, 419 N.W.2d 582 (Iowa 1988), the right to visitation granted by the trial court in the February 5, 1989 order has never been repealed.

I also disagree with the majority conclusion that the grandfather was not a custodian entitled to notice of the adoption proceeding. Iowa Code section 600.11 provides for notice of an adoption hearing to be given to a custodian. The first error the majority makes is in using the definition of section 232.2(11) to define custodian. This is an adoption. Adoption is purely a creature of statute. The only Iowa statutory authority for adoption is Iowa Code chapter 600. The procedure for an adoption is set *170out there. Any failure to follow statutorily prescribed procedures in any material respect is fatal to the power of the court to decree an adoption. In re Marriage of Holcomb, 471 N.W.2d 76, 78 (Iowa App.1991). When the grandfather was afforded visitation rights by the district court under chapter 598, he became a custodian. See Patterson, 365 N.W.2d at 26; see also Iowa Code § 598.A2.

The majority in reaching its position has put considerable reliance on A.C. A.C. is not controlling here. Furthermore, A. C. is factually very distinguishable. A.C. is a case where grandparents attempted to establish postadoption visitation rights under a specific statute, which has now been repealed. In A.C., 428 N.W.2d at 302, the court recognized the issue in A. C. was different from cases where an order for visitation had been issued by a court having jurisdiction to do so, and the visitation order preceded the adoption and was not an attempt to establish postadoption visitation. In A. C, the court recognized the holding of In re Guardianship and Conservatorship of Ankeney, 360 N.W.2d 733 (Iowa 1985) (grandparent visitation upheld where it had been ordered by a court having probate jurisdiction prior to the adoption); and Patterson, 365 N.W.2d 22 (Iowa 1985) (grandparent visitation had been ordered under chapter 598 prior to the adoption decree); and Nemer, 419 N.W.2d at 582 (valid decree of adoption does not automatically terminate prior guardianship order granting grandparent visitation).

The majority also relies on In re Adoption of Gardiner, 287 N.W.2d 555 (Iowa 1980). In Patterson, 365 N.W.2d at 25, the court recognized “that Gardiner does not say an adoption decree automatically nullified another valid decree granting grandparent visitation.”

If court ordered grandparent visitation rights are cut off, it should happen after a hearing, not by a summary determination that an adoption will take place without notice.

I would follow the directive of Patterson, 365 N.W.2d at 26, and hold that the grandfather’s visitation rights were not cut off by the adoption decree.

I would affirm as to the stepgrandmother’s appeal. Although I recognize she has shown considerable care and concern for her husband’s biological grandchild, she was not granted any visitation rights by the district court. I do not find the legislature has provided for granting visitation to stepgrandmothers.

The majority relies on an interpretation of section 600A.10(3) in finding that section 598.35 does not provide for grandparent visitation when a child is adopted.

The situation here is more parallel to Patterson. 365 N.W.2d at 26, and Nemer, 419 N.W.2d at 584, where critical to the courts’ holdings were the fact that the guardianship proceedings had not been terminated prior to the adoption. Nemer, Ankeney, and Patterson all stand for authority that an adoption decree does not automatically terminate a visitation order. I would reverse.

While the majority seems to think the adoptive parents will give the grandfather visitation, I find no assurance they will, remembering they were parties to the adoption proceeding conducted without notice to the grandfather and after the adoption they discontinued visitation.

SCHLEGEL, J., joins this dissent.