                                                                                 FILED
                                                                            Aug 15 2019, 8:48 am

                                                                                 CLERK
                                                                             Indiana Supreme Court
                                                                                Court of Appeals
                                                                                  and Tax Court




      ATTORNEY FOR APPELLANTS                                    ATTORNEY FOR APPELLEE
      George T. Catanzarite                                      Mark F. James
      Stipp Law, LLC                                             Anderson, Agostino & Keller, P.C.
      South Bend, Indiana                                        South Bend, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Allison Campbell n/k/a Allison                             August 15, 2019
      Lanthier and Kyle Lanthier,                                Court of Appeals Case No.
      Appellants-Respondents,                                    19A-MI-6
                                                                 Appeal from the St. Joseph Circuit
              v.                                                 Court
                                                                 The Honorable John E. Broden,
      Tara Eary,                                                 Judge
      Appellee-Petitioner.                                       Trial Court Cause No.
                                                                 71C01-1112-MI-225



      Najam, Judge.


                                         Statement of the Case
[1]   The issue in this appeal is whether a grandparent visitation order over two

      children born out of wedlock survives after the children have been legitimized

      by the marriage of the children’s biological parents. We hold that it does not.

      Accordingly, we reverse the trial court’s judgment and remand with

      instructions.
      Court of Appeals of Indiana | Opinion 19A-MI-6 | August 15, 2019                               Page 1 of 7
                                  Facts and Procedural History
[2]   Allison Lanthier (“Mother”) gave birth to R.L. in June of 2008 and to L.L. in

      September of 2010. Kyle Lanthier (“Father”) is the biological father of both

      children, but Mother and Father were not married at the time of either child’s

      birth. Father did not file a paternity affidavit, but Father’s name appears on

      each child’s birth certificate.


[3]   In December of 2011, Tara Eary, Mother’s mother (“Grandmother”),

      petitioned the trial court for an order of grandparent visitation over the children

      pursuant to Indiana’s Grandparent Visitation Act, Indiana Code Sections 31-

      17-5-0.2 to -10 (2019) (“the Act”). In particular, she requested visitation under

      Indiana Code Section 31-17-5-1(a)(3) on the ground that the children were born

      out of wedlock. The trial court granted Grandmother’s request and, in its

      order, established a visitation schedule (“the visitation order”).


[4]   In September of 2013, Mother and Father married. Thereafter, Father moved

      to intervene in Grandmother’s visitation action, which the trial court granted,

      and Mother and Father jointly moved to “dismiss” the visitation order on the

      ground that their marriage had legitimized the children and that, as a matter of

      law, the visitation order did not survive the marriage. Appellants’ App. Vol. 2

      at 14-15. The trial court disagreed and denied Mother and Father’s joint

      motion to dismiss. The court then certified its order for interlocutory appeal,

      which we accepted.




      Court of Appeals of Indiana | Opinion 19A-MI-6 | August 15, 2019           Page 2 of 7
                                      Discussion and Decision
[5]   Mother and Father (hereinafter, “the Parents”) appeal the trial court’s denial of

      their joint motion to dismiss. They assert that the Act does not provide for the

      survival of the visitation order after the Parents have legitimized the children by

      their marriage. The Parents’ argument on appeal turns entirely on statutory

      construction, which we undertake de novo. E.g., State v. Reinhart, 112 N.E.3d

      705, 710 (Ind. 2018).


[6]   “Historically, grandparents had no special common-law right to have visitation

      with a grandchild.” K.J.R. v. M.A.B. (In re Visitation of M.L.B.), 983 N.E.2d 583,

      585 (Ind. 2013). However, “by enacting the Grandparent Visitation Act, our

      General Assembly has recognized that a child’s best interest is often served by

      developing and maintaining contact with his or her grandparents.” McCune v.

      Frey, 783 N.E.2d 742, 755 (Ind. Ct. App. 2003) (quotation marks omitted). The

      Act thus seeks “to balance two competing interests: the rights of parents to

      raise their children as they see fit and the rights of grandparents to participate in

      the lives of their grandchildren.” Id.


[7]   The Act is in derogation of the common law and is “the exclusive basis for a

      grandparent to seek visitation.” In re Visitation of M.L.B., 983 N.E.2d at 585. As

      such, it “must be strictly construed.” J.C. v. J.B. (In re Guardianship of A.J.A.),

      991 N.E.2d 110, 113 (Ind. 2017) (discussing B.M. v. J.J.P. (In re Visitation of

      C.R.P.), 909 N.E.2d 1026, 1028 (Ind. Ct. App. 2009), trans. denied) (quotation

      marks omitted). The Act “contemplates only occasional, temporary visitation


      Court of Appeals of Indiana | Opinion 19A-MI-6 | August 15, 2019             Page 3 of 7
       that does not substantially infringe on a parent’s fundamental right to control

       the upbringing, education, and religious training of their [sic] children.” In re

       Visitation of M.L.B., 983 N.E.2d at 586 (quotation marks omitted).


[8]    The Act does not speak to whether existing grandparent visitation orders

       survive the subsequent legitimation by marriage of a child born out of wedlock.

       We thus begin our review of the Act as relevant here by first recognizing that

       Grandmother had lawfully obtained a visitation order under Indiana Code

       Section 31-17-5-1(a)(3), which permits a child’s grandparent to seek visitation

       rights if “the child was born out of wedlock.”


[9]    With a lawful order on that basis in place, the Act expressly contemplates two,

       and only two, circumstances in which such an order “survives” the subsequent

       assumption of a parental role over a child who is the subject of such a visitation

       order. First, Indiana Code Section 31-17-5-8(b) provides that, when a child is

       born out of wedlock, “[v]isitation rights provided for in section 1 . . . survive the

       establishment of paternity of a child by a court proceeding other than an

       adoption proceeding.” Second, Indiana Code Section 31-17-5-9 provides that

       visitation rights “survive the adoption of the child” by “[a] stepparent” or by

       “[a] person who is biologically related to the child as: (A) a grandparent; (B) a

       sibling; (C) an aunt; (D) an uncle; (E) a niece; or (F) a nephew.”


[10]   The Act expressly addresses those two circumstances in which a grandparent

       visitation order over a child born out of wedlock survives, which implies that

       such an order does not survive under other circumstances. As our Supreme


       Court of Appeals of Indiana | Opinion 19A-MI-6 | August 15, 2019            Page 4 of 7
       Court has explained, “[u]nder the doctrine of expressio unius est exclusio alterius,

       when certain items or words are specified or enumerated in a statute then, by

       implication, other items or words not so specified or enumerated are excluded.”

       A.A. v. Eskenazi Health/Midtown CMHC, 97 N.E.3d 606, 614 (Ind. 2018)

       (alteration and quotation marks omitted). Here, the Act does not include the

       subsequent marriage of a child’s natural parents as a circumstance in which an

       existing grandparent visitation order survives. Thus, we conclude that a

       grandparent visitation order does not survive the subsequent marriage of the

       natural parents of a child born out of wedlock.


[11]   Our interpretation is consistent with our legislature’s intent underlying the Act.

       This is especially clear from the language of Indiana Code Section 31-17-5-8(b).

       Again, the statute provides that a grandparent visitation order that is entered

       over a child born out of wedlock survives the “establishment of paternity of a

       child by a court proceeding.” I.C. § 31-17-5-8(b) (emphasis added). The phrase

       “by a court proceeding” necessarily excludes the legitimation of a child by his

       or her parents’ subsequent marriage. A marriage is not a court proceeding,

       even if it occurs at a courthouse or is performed by a judicial officer. 1 Thus,

       again, a strict construction of Indiana Code Section 31-17-5-8(b) indicates that

       an existing grandparent visitation order does not survive after the parents have

       legitimized their child by their subsequent marriage.



       1
         A civil court proceeding, by contrast, “is commenced by filing with the court a complaint or such
       equivalent pleading or document as may be specified by statute,” Ind. Trial Rule 3, which results in a case
       number being assigned to the proceeding in accordance with Indiana Administrative Rule 8.

       Court of Appeals of Indiana | Opinion 19A-MI-6 | August 15, 2019                                   Page 5 of 7
[12]   Further, the circumstances in which the Act provides that a grandparent

       visitation order survives a subsequent adoption are not equivalent to the

       legitimation of a child by the subsequent marriage of the child’s natural parents.

       A fit biological parent holds a privileged, and constitutionally protected, place

       with respect to his or her child. See, e.g., J.I. v. J.H. (In re Paternity of K.I.), 903

       N.E.2d 453, 460-61 (Ind. 2009). Indiana Code Section 31-17-5-9 speaks to the

       survival of a grandparent visitation order following the adoption of the child by

       a stepparent or a biologically related nonparent. Given the text of the statute,

       we decline to analogize or equate those persons with married and fit biological

       parents, who enjoy unique constitutional rights vis-à-vis their children.


[13]   In sum, the Act is in derogation of the common law and must be strictly

       construed. Instead, Grandmother’s argument on appeal asks this Court to read

       words into the Act that are not there. We will not read the Act to say

       something it plainly does not say, and we will not disregard the words actually

       chosen by our General Assembly to strike the balance between allowing for

       grandparent visitation while also protecting a fit biological parent’s rights over

       his or her children. We hold that the plain language of the Act does not provide

       for the survival of an existing grandparent visitation order when the biological

       parents legitimize their children by their subsequent marriage. As such, we

       reverse the trial court’s judgment and remand with instructions to vacate the

       visitation order.


[14]   Reversed and remanded with instructions.



       Court of Appeals of Indiana | Opinion 19A-MI-6 | August 15, 2019                  Page 6 of 7
Bailey, J., and May, J., concur.




Court of Appeals of Indiana | Opinion 19A-MI-6 | August 15, 2019   Page 7 of 7
