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.




Court of Appeals of Indiana | Memorandum Decision No. 49A02-1712-MI-2754 |May 23, 2018           Page 1 of 8
[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

      Court of Appeals of Indiana | Memorandum Decision No. 49A02-1712-MI-2754 |May 23, 2018   Page 2 of 8
      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-


      Court of Appeals of Indiana | Memorandum Decision No. 49A02-1712-MI-2754 |May 23, 2018   Page 3 of 8
      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.


      Court of Appeals of Indiana | Memorandum Decision No. 49A02-1712-MI-2754 |May 23, 2018   Page 4 of 8
      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.

      Court of Appeals of Indiana | Memorandum Decision No. 49A02-1712-MI-2754 |May 23, 2018               Page 5 of 8
       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.

       Court of Appeals of Indiana | Memorandum Decision No. 49A02-1712-MI-2754 |May 23, 2018   Page 6 of 8
[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
       Court of Appeals of Indiana | Memorandum Decision No. 49A02-1712-MI-2754 |May 23, 2018   Page 7 of 8
       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.




       Court of Appeals of Indiana | Memorandum Decision No. 49A02-1712-MI-2754 |May 23, 2018   Page 8 of 8
