FILED
Jun 06 2023, 9:01 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANTS ATTORNEYS FOR APPELLEE
Kyle Andrew Swick Darryn L. Duchon
Danville, Indiana Indianapolis, Indiana
David W. Stone IV
Anderson, Indiana
IN THE
COURT OF APPEALS OF INDIANA
H.P. and S.P., June 6, 2023
Appellants-Petitioners, Court of Appeals Case No.
22A-AD-2674
v. Appeal from the Hendricks
Superior Court
G.F., The Honorable Robert W. Freese,
Appellee-Plaintiff Judge
Trial Court Cause No.
32D01-1904-AD-22
Opinion by Chief Judge Altice
Judges Riley and Pyle concur.
Altice, Chief Judge.
Case Summary
[1] H.P. and S.P. (collectively, Adoptive Parents) appeal the trial court’s order
granting grandparent visitation to G.F. (Grandfather). Adoptive Parents
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present several issues for our review, but we need address only one: Did
Grandfather have standing to seek grandparent visitation rights at the time he
filed his petition?
[2] We reverse.
Facts & Procedural History
[3] K.F. (Child) was born in September 2016 to B.R. (Mother) and T.F. (Father).
Grandfather and S.P. are Child’s biological paternal grandparents. 1 Both
Mother and Father had serious substance abuse issues, resulting in Child
becoming a ward of the State through CHINS proceedings at the beginning of
2017. The Indiana Department of Child Services (DCS) placed Child in
relative care with Adoptive Parents during the week and Grandfather on the
weekends. Mother’s and Father’s parental rights were terminated in September
2018.
[4] Following termination of parental rights, DCS continued Child’s placement in
the homes of Grandfather and Adoptive Parents. At a CHINS hearing in
November 2018, which Grandfather attended, the trial court ordered a plan of
adoption. Adoptive Parents then began steps to adopt Child with the consent of
DCS. The adoption was granted on May 17, 2019, without any notice
provided to Grandfather.
1
Grandfather and S.P. were married between 1985 and 1991 and had two children – Father and another
son. After their divorce, S.P. married H.P. in 1999, and they had a daughter in 2001.
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[5] S.P. informed Grandfather of the finalized adoption around August 2019.
Notwithstanding the adoption, Adoptive Parents continued to voluntarily give
Grandfather regular weekend visitation with Child. Typical visitation would be
every weekend from Friday to Monday. Grandfather also traveled with Child
from time to time. He formed a strong bond with Child throughout her young
life and helped support her by providing clothing, shoes, play equipment, and
other items.
[6] In the years after the adoption, Child’s biological parents died – Father in July
2021 and Mother in January 2022. Around the time of Mother’s death, though
unrelated, Adoptive Parents began to develop concerns about Grandfather’s
time with Child – the details of which are not relevant to our disposition of this
appeal. The last visit they permitted between Grandfather and Child ended on
January 10, 2022.
[7] On April 6, 2022, Grandfather filed a Motion to Reopen Adoption and
Intervene, arguing that he had a right to pursue grandparent visitation because
he was not provided with proper notice of the adoption. After a contested
hearing, the trial court granted Grandfather’s motion to intervene on June 10,
2022. Grandfather then filed a Motion for Grandparent Visitation, which
Adoptive Parents opposed on the merits as well as on the basis that reopening
the adoption proceedings – nearly three years after the adoption was granted –
was improper.
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[8] The trial court held an evidentiary hearing on October 20, 2022. Then, on
November 17, 2022, the trial court issued its order awarding visitation to
Grandfather on alternating weekends from Friday after school until Monday
morning, or 6:00 p.m. and 9:00 a.m., respectively, when school is not in
session.
[9] Adoptive Parents have timely appealed, and their request for a stay of the
visitation order was granted by this court on November 18, 2022. The stay
remains in effect following the denial of Grandfather’s motion to reconsider.
Additional information will be provided below as needed.
Discussion & Decision
[10] Grandfather sought and obtained visitation under the Grandparent Visitation
Act (the Act), which was enacted by the Indiana General Assembly in 1982 and
continues to provide the exclusive basis for a grandparent to seek visitation with
their grandchildren. See In re Visitation of B.A.A., 173 N.E.3d 689, 691 (Ind. Ct.
App. 2021). The Act is now codified at Ind. Code Chap. 31-17-5. Because it is
in derogation of the common law, we strictly construe the Act. Jocham v. Sutliff,
26 N.E.3d 82, 85 (Ind. Ct. App. 2015), trans. denied. If a grandparent lacks
standing under the Act, their petition must be dismissed. Id.
[11] I.C. § 31-17-5-1(a)(1) provides a grandparent with the right to seek visitation if
the child’s mother or father is deceased, and pursuant to I.C. § 31-17-5-3(b), a
petition for grandparent visitation must be filed, if at all, before an adoption
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decree is entered. 2 For purposes of the Act, I.C. § 31-9-2-77 defines a
“grandparent” as including: “(1) the adoptive parent of the child’s parent; (2)
the parent of the child’s adoptive parent; and (3) the parent of the child’s
parent.”
[12] When Grandfather petitioned for visitation, Child’s parents – Adoptive Parents
– were alive and well and had been parenting Child for nearly three years.
Further, when Adoptive Parents adopted Child, Child’s biological parents were
still alive but had no parental rights to Child. And Grandfather was no longer
“the parent of child’s parent” once his son’s parental rights were terminated.
See In re G.R., 863 N.E.2d 323, 326 (Ind. Ct. App. 2007) (“In sum, at the
moment Mother’s rights were terminated, Grandmother no longer had standing
to pursue visitation rights as to G.R.”). Thus, by the time Grandfather finally
got around to filing his petition for visitation, he had lacked a legally recognized
grandparent relationship with Child for several years and no longer had
standing to seek grandparent visitation. See Jocham, 26 N.E.3d at 87
(“Following the adoption, Sutliff remained K.J.’s grandmother biologically,
emotionally, and morally, but at the time she filed her petition for grandparent
visitation, she was no longer legally his grandparent.”); In re Marriage of J.D.S. &
2
Already-established rights under the Act survive the adoption of a child by a person biologically related to
the child as a grandparent. I.C. § 31-17-5-9(2)(A). This provision is not at issue here because Grandfather
had no existing grandparent visitation rights at the time of the adoption, nor had he filed a petition to pursue
any. See Jocham, 26 N.E.3d at 88 (“Because 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.”).
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A.L.S., 953 N.E.2d 1187, 1190 (Ind. Ct. App. 2011) (“Because she did not file
her petition until after Father’s parental rights were terminated, Grandmother
no longer had standing as the parent of the children’s parent, and there were no
existing visitation rights upon which to bootstrap continued visitation in the
wake of the adoption.”), trans. denied; In re G.R., 863 N.E.2d at 326 (biological
maternal grandmother had no standing to bring petition after biological
mother’s paternal rights were terminated).
[13] Grandfather attempts to sidestep the standing issue by taking aim on the
adoption proceedings. That is, Grandfather argues that as a person having
“lawful custody” of Child, which he shared with Adoptive Parents during the
CHINS proceedings, his written consent to the adoption was required and he
was entitled to legal notice of the adoption proceedings. Grandfather reasons
that if he received proper notice, he would have been able to timely petition for
visitation under the Act before the adoption was granted.
[14] Ind. Code § 31-19-9-1(a)(3) provides that “a petition to adopt a child who is less
than eighteen (18) years of age may be granted only if written consent to
adoption has been executed by … [e]ach person, agency, or local office having
lawful custody of the child whose adoption is being sought.” Our Supreme
Court has interpreted the term “lawful custody” as used in this statute to
“encompass more circumstances and familial arrangements than court-ordered
legal custody.” In re Adoption of B.C.H., 22 N.E.3d 580, 585 (Ind. 2014). In
explaining its broad interpretation of the term, the Court observed:
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The General Assembly’s deliberate choice to require those with
lawful custody of a child to be given notice of and an opportunity
to withhold consent to the child’s adoption likely reflects its
policy judgment that, in determining whether the adoption is in
the child’s best interests, trial courts should hear from the party
with care, custody, and control of the child in question –
regardless of whether the party’s responsibility derives from a
court order. Moreover, those with lawful custody of the child are
exactly who trial judges want to hear from as they make one of
the toughest decisions they are called upon to decide. And who
better to know and speak to the child’s best interests than the
person(s) functioning as the child’s parent(s). As the statute
contemplates, a caregiver serving as a child’s lawful custodian
needs, and deserves, to have a voice in the child’s adoption
proceedings.
Id. at 585-86 (emphases in original).
[15] The determination of whether an individual has lawful custody of a child is
fact-sensitive and must be decided case-by-case. Id. at 586. In this case, the
trial court found that Grandfather “housed, financially supported, met the
needs of, formed a bond with and cared for [Child] on a weekly basis.”
Appendix at 15. Based on this consistent care and support throughout the
CHINS proceedings and leading up to the adoption, the trial court determined
that Grandfather shared “lawful custody” of Child with S.P. and that he had a
right to notice and an opportunity to withhold his consent.
[16] Adoptive Parents counter by arguing that Grandfather had not been Child’s
primary caregiver for some time. Child had lived with Adoptive Parents since
sometime in 2017 and only visited Grandfather on the weekends. Adoptive
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Parents seem to suggest that to be considered a lawful custodian one must meet
the statutory definition of a de facto custodian at the time the petition for
adoption is brought. We do not believe that the Supreme Court intended such
a narrow construction, but we need not determine whether the trial court
properly concluded that Child was in Grandfather’s lawful custody.
[17] Even assuming that Grandfather was a lawful custodian of Child entitled to
notice and an opportunity to contest the 2019 adoption, his 2022 challenge to
the adoption decree is plainly time-barred. I.C. § 31-19-14-4 provides
limitations on direct or collateral attacks of adoption decrees:
After the expiration of the period described in section 2 of this
chapter, neither a person whose parental rights are terminated by
the entry of an adoption decree nor any other person may
challenge the adoption decree even if:
(1) notice of the adoption was not given; or
(2) the adoption proceedings were in any other manner
defective.
The outer bounds of a challenge are six months after the entry of the adoption
decree or one year after the adoptive parents obtain custody of the child,
whichever is later. I.C. § 31-19-14-2. Grandfather’s challenge to the adoption
decree, nearly three years after it was entered, was far too late.3
3
Even after he received actual notice in August 2019 of the finalized adoption, Grandfather waited over two
years to reopen the adoption and seek grandparent visitation. Moreover, any suggestion by Grandfather that
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[18] Grandfather asserts that he is not seeking to set aside the adoption and that he
only wants to have grandparent visitation. Even so, this does not get him past
the obstacle of the above statute of limitations. 4
[19] In sum, we hold that Grandfather no longer has standing to seek grandparent
visitation and that his attempt to regain standing by attacking the adoption
decree is fruitless given the applicable statute of limitations. Accordingly, the
trial court erred by addressing the merits of Grandfather’s claim for grandparent
visitation under the Act. It may very well be that continued contact with
Grandfather is in Child’s best interests, but at this point, such a determination
must be left to her parents, not the court.
[20] Judgment reversed.
Riley, J. and Pyle, J., concur.
Adoptive Parents intentionally and fraudulently concealed the adoption until the statute of limitations had
run is without merit, as Grandfather’s own testimony reveals that S.P. informed him of the adoption well
within the statute of limitations.
4
Grandfather directs us to a case from Florida in which the Florida Supreme Court held that the
grandparents could intervene and reopen the adoption case where they had not received notice of the
adoption proceedings despite being interested parties due to their court-ordered visitation rights that existed
at the time of the adoption. In re Adoption of a Minor Child, 593 So.2d 185 (Fla. 1991). Even if we found it
helpful to look to Florida caselaw on this subject, which we do not, we note that Grandfather has ignored key
details from that case. That is, the court held that in order to have an opportunity to assert their rights, if any,
the grandparents “must first vacate the final judgment of adoption.” Id. at 190. The court then held that
grandparents were permitted to “attack [the] final judgment” because they filed within the one-year statute of
repose. Id.
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