                                                                            Feb 06 2015, 6:24 am




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Robert E. Shive                                            Jonathan R. Deenik
      Hollingsworth & Zivitz, P.C.                               Cross Pennamped Woolsey & Glazier
      Carmel, Indiana                                            Carmel, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Kirk R. Jocham,                                           February 6, 2015

      Appellant-Respondent,                                     Court of Appeals Cause No.
                                                                29A02-1406-DR-424
              v.
                                                                Appeal from the Hamilton Superior
      Melba Sutliff,                                            Court
                                                                Cause No. 29D03-0803-DR-359
      Appellee-Intervenor,
                                                                The Honorable William J. Hughes,
                                                                Judge




      Robb, Judge.



                                 Case Summary and Issue
[1]   Kirk Jocham (“Jocham”) appeals the trial court’s order granting grandparent

      visitation to Melba Sutliff (“Sutliff”). Jocham raises several issues for our

      review, of which we find the following dispositive: whether Sutliff had standing

      to petition for grandparent visitation. Concluding that Sutliff was not a


      Court of Appeals of Indiana | Opinion 29A02-1406-DR-424 | February 6, 2015                   Page 1 of 12
      “grandparent” entitled to seek visitation rights at the time she filed her petition,

      we reverse.



                             Facts and Procedural History
[2]   Sutliff is Stephenie Jocham’s (“Stephenie”) mother. Jocham and Stephenie

      were married and had one child together, K.J., born in 2004. Jocham and

      Stephenie divorced in Hamilton County in 2008. Jocham married Emily

      Jocham (“Emily”) on March 12, 2011. On June 2, 2011, Stephenie passed

      away. On September 20, 2012, pursuant to a decree entered by the Hancock

      Superior Court, Emily adopted K.J. and a new birth certificate was issued

      showing K.J. as the child of “Kirk Robert and Emily Rebecca Jocham.”

      Exhibit B.


[3]   On July 16, 2013, Sutliff filed a Petition to Intervene in the Hamilton County

      dissolution case for the purposes of filing a Petition for Grandparent Visitation.

      Over Jocham’s objection, the Petition to Intervene was granted and the Petition

      for Grandparent Visitation was scheduled for hearing. The trial court took the

      matter under advisement following the hearing and allowed the parties to file

      written summaries of their arguments. The trial court thereafter issued an order

      denying the Petition for Grandparent Visitation, finding in pertinent part as

      follows:

              7. I.C. 31-17-5 et seq controls the issues of visitation sought by a
              grandparent. I.C. 31-17-5-1 provides, in relevant part: (a) 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

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               Indiana. . . I.C. 31-17-5-9 provides, in relevant part: Visitation rights
               provided for in section 1 or 10 . . . of this chapter survive the adoption
               of the child by any of the following: (1) a stepparent.


               8. The visitation rights of a grandparent provided for in these sections
               are those acquired by a grandparent by court order prior to the
               adoption of a child by a stepparent. An adoption by a stepparent
               extinguishes any right of a grandparent (parent of a deceased biological
               parent) to subsequently petition a court for an order establishing
               grandparent visitation.


               9. . . . The court is without authority to order grandparent visitation
               for [Sutliff] even though it may well be in the best interests of [K.J.]


      Appellant’s Appendix at 64.


[4]   Sutliff then filed a Motion to Correct Error, alleging the trial court erred in

      essentially finding she was without standing to pursue her Petition for

      Grandparent Visitation. Following a hearing, the trial court granted the

      motion,1 finding that notwithstanding Emily’s adoption of K.J.:

               . . . [Stephenie] was, remains, and always will be K.J.’s biological
               mother. Accordingly, [Sutliff] is the “maternal grandparent” under
               I.C. 31-9-2-77. She may seek, pursuant to I.C. § 31-17-5-1, visitation
               rights with K.J. because the child’s parent is deceased, and because
               [Sutliff] is the biological parent of the child’s deceased biological
               parent. The right provided for in section 1 is the right to seek




      1
        A senior judge originally heard Sutliff’s petition and issued the order denying it because the regular sitting
      judge of the Hamilton Superior Court was on temporary medical leave. See Appellant’s App. at 83. The
      regular judge heard the motion to correct error, issued the order granting the motion to correct error, and
      subsequently heard and decided the merits of Sutliff’s petition for grandparent visitation. Id.

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              grandparent visitation rights, and it is that right of [Sutliff’s] that has
              survived the adoption of K.J.


      Id. at 87 (emphasis in original) (citations omitted).


[5]   Following a hearing on the merits of Sutliff’s petition for grandparent visitation,

      the court issued the order that is the subject of this appeal granting Sutliff’s

      petition and ordering visitation per a schedule set out therein, to include one

      weekend a month, one week in the summer, and extra time around the

      holidays. Jocham now appeals the trial court’s grant of Sutliff’s motion to

      correct error and subsequent grant of her petition for grandparent visitation.



                                  Discussion and Decision
                                      I. Standard of Review
[6]   Grandparents historically had no common-law right to visitation with their

      grandchildren. In re Visitation of M.L.B., 983 N.E.2d 583, 585 (Ind. 2013). In

      1982, the Indiana legislature passed the Grandparent Visitation Act (“GVA”),

      which is the exclusive basis for a grandparent to seek visitation. Id. Because

      the GVA was enacted in derogation of the common law, it must be strictly

      construed. In re Guardianship of A.J.A., 991 N.E.2d 110, 113 (Ind. 2013). To

      seek visitation rights, a grandparent must have standing as prescribed by the

      GVA; otherwise, the petition must be dismissed as a matter of law. Id.


[7]   We generally review a ruling on a motion to correct error for an abuse of

      discretion. Kornelik v. Mittal Steel USA, Inc., 952 N.E.2d 320, 324 (Ind. Ct. App.

      Court of Appeals of Indiana | Opinion 29A02-1406-DR-424 | February 6, 2015            Page 4 of 12
      2011), trans. denied. However, Sutliff’s motion to correct error raised a question

      regarding the interpretation of the GVA. Interpretation of a statute is a

      question of law that we review de novo, giving no deference to the trial court’s

      interpretation. Andrews v. Mor/Ryde Int’l, Inc., 10 N.E.3d 502, 504 (Ind. 2014).

      In other words, we independently review the statute’s meaning and apply it to

      the facts of the case we are reviewing. Id. Our goal in interpreting a statute is

      to determine and give effect to the legislature’s intent, primarily by examining

      the statute’s language. State v. Coats, 3 N.E.3d 528, 531 (Ind. 2014), cert. denied,

      2015 WL 133244 (2015). “If a statute is clear and unambiguous, [we] do not

      apply any rules of construction other than giving effect to the plain and ordinary

      meaning of the language.” N.L. v. State, 989 N.E.2d 773, 777 (Ind. 2013)

      (citation omitted).


                         II. Sutliff’s Standing under the GVA
[8]   Sutliff asserted below, and the trial court ultimately agreed, that she has

      standing to pursue grandparent visitation pursuant to Indiana Code section 31-

      17-5-1(a)—which allows, inter alia, the grandparent of a child whose parent is

      deceased or whose parents’ marriage has been dissolved to seek visitation

      rights—and Indiana Code section 31-17-5-9—which provides that grandparent

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

      Jocham asserts that, notwithstanding section 31-17-5-9, Sutliff lacked standing

      to pursue grandparent visitation because she filed her petition to establish

      grandparent visitation rights after Emily adopted K.J.



      Court of Appeals of Indiana | Opinion 29A02-1406-DR-424 | February 6, 2015   Page 5 of 12
[9]    There is no question that Sutliff is the parent of Stephenie, who is the biological

       parent of K.J. Furthermore, there is no question that Jocham and Stephenie’s

       marriage was dissolved in 2008 or that Stephenie is now deceased.

       Accordingly, had Sutliff filed a petition for grandparent visitation at any time

       after Jocham and Stephenie filed for divorce up to the day Emily’s adoption of

       K.J. was final, we would agree with the trial court that she had the right to

       petition for visitation rights and that any visitation rights granted to her as a

       result of the petition survived the adoption.


[10]   In In re Visitation of Menzie, 469 N.E.2d 1225 (Ind. Ct. App. 1984), trans. denied,

       the child’s biological mother passed away in 1975 and her father subsequently

       remarried. After the GVA was enacted in 1982, the maternal grandmother

       sought and was granted visitation rights with the child. The child’s stepmother

       then adopted the child in 1983 and the child’s parents filed a petition to modify

       or terminate the grandparent visitation order which was denied. On appeal, we

       held that the adoption cut off the grandmother’s existing visitation rights. Id. at

       1227. In 1985, following the Menzie decision, the GVA was amended to add

       now-section 31-17-5-9 providing that visitation rights survive a stepparent

       adoption. When Menzie came before this court again following legislative

       amendments to the GVA, we noted that the legislature had recognized a

       difference between a traditional adoption resulting in a wholly new family unit

       and an adoption resulting in a new member joining an existing family unit and

       had “obviously chosen” to extend special protection to existing

       grandparent/grandchild ties when it provided for post-adoptive visitation.


       Court of Appeals of Indiana | Opinion 29A02-1406-DR-424 | February 6, 2015   Page 6 of 12
       Bailey v. Menzie, 542 N.E.2d 1015, 1017-18 (Ind. Ct. App. 1989). Subsequent

       cases have therefore held that stepparent adoption does not extinguish

       preexisting grandparent visitation rights. See, e.g., Sightes v. Barker, 684 N.E.2d

       224, 227 (Ind. Ct. App. 1997) (holding where there was no dispute that

       grandmother was a “grandparent” within the meaning of the GVA when she

       filed her petition, her visitation rights with child were not extinguished by

       child’s subsequent adoption by stepfather), trans. denied; cf. Baker v. Lee, 901

       N.E.2d 1107, 1110 (Ind. Ct. App. 2009) (holding that because paternal

       grandfather had obtained a court order for visitation through guardianship

       proceedings because of his status as child’s grandparent, and because that order

       predated child’s adoption by maternal grandparents, there was a sufficient

       existing right to visitation to allow filing of a petition under the GVA post-

       adoption).


[11]   In this case, however, Sutliff had no existing grandparent visitation rights at the

       time of the adoption, nor was she pursuing any. As noted above, at common

       law, a grandparent had no right to visitation. See In re M.L.B., 983 N.E.2d at

       585. Therefore, the GVA does not protect an existing right, it confers a right

       upon a person who is statutorily entitled to ask for it. When Emily adopted

       K.J., she became his legal mother in Stephenie’s stead. See Ind. Code § 31-19-

       15-2(c) (stating that after a stepparent adoption, the adoptive parent “occup[ies]

       the same position toward the child that the adoptive [parent] would occupy if

       the adoptive [parent] [was] the biological [parent] . . . .”); see also In re Menzie,

       469 N.E.2d at 1227 (noting the stepparent adoption statute “places the adoptive


       Court of Appeals of Indiana | Opinion 29A02-1406-DR-424 | February 6, 2015    Page 7 of 12
       mother in the position of the child’s natural mother. Thus the adoptive mother

       becomes the natural mother of the child. All legal ties between the adopted

       child and her biological mother are severed.”). 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. A “grandparent” is defined for purposes of the grandparent

       visitation statute as “(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.” Ind.

       Code § 31-9-2-77. Sutliff has none of those relationships to Emily, who, as of

       September 20, 2012, is legally recognized as K.J.’s parent. Therefore, on July

       16, 2013, Sutliff had no standing to bring her petition. Cf. In re G.R., 863

       N.E.2d 323, 326 (Ind. Ct. App. 2007) (holding that trial court properly denied

       grandmother’s petition for grandparent visitation where mother’s parental rights

       to child were terminated and grandmother’s petition was filed later that same

       day; grandmother had no standing when she filed her petition because when

       mother’s rights were terminated, she was no longer a “grandparent” as defined

       by the GVA).


[12]   Our decision is not inconsistent with and does not render section 31-17-5-9

       meaningless. Previous court precedent has defined the “[v]isitation rights”

       referenced in section 31-17-5-9 as visitation rights already exercised or

       established by court order under section 31-17-5-1 prior to the adoption. See,

       e.g., Sightes, 684 N.E.2d at 227; In re Marriage of J.D.S. and A.L.S., 953 N.E.2d

       1187, 1190 (Ind. Ct. App. 2011) (although paternal grandmother at one time


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had visitation rights, they were terminated by court order; thus, when biological

father’s parental rights were later terminated simultaneously with mother’s new

husband adopting the child, “there were no existing visitation rights upon

which to bootstrap continued visitation in the wake of the adoption” and

grandmother did not have standing to pursue a post-adoption petition to

reinstate visitation), trans. denied. Our decision today is in line with those

decisions. Moreover, in the recently decided case In re Adoption of B.C.H., 22

N.E.3d 580 (Ind. 2014), our supreme court made it clear, in a different though

similar context, that we must carefully parse the words the legislature uses in a

statute in determining its intent. In B.C.H., it was the words “lawful custody”

in the statute describing persons who must consent to an adoption. See id. at

581 (referencing Ind. Code § 31-19-9-1(a)). Here, it is the words “visitation

rights” in section 31-17-5-9 regarding what right survives stepparent adoption.

The trial court believed what survives is “the right to seek grandparent visitation

rights . . . .” Appellant’s App. at 87 (emphasis in original). Our careful reading

of section 31-17-5-1, however, makes it clear that the phrase “visitation rights”

in the GVA does not mean the right to go to court to get visitation but rather,

the right established to visit. The language of section 1 states a grandparent

“may seek visitation rights” in certain circumstances. It does not say the

grandparent “has a right to seek visitation.” Therefore, reference to “visitation

rights” is not a reference to the right to seek visitation but rather to the right of

visitation already established. Correspondingly, section 31-17-5-9’s reference to

the “[v]isitation rights provided in section 1” as surviving stepparent adoption

means not that the ability to go to court survives the adoption but that the right
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       to visit already given by a court survives. 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.


[13]   We note the trial court’s concern that Sutliff did not get notice of the adoption

       petition, the granting of which ultimately cut off her right to seek visitation.

       However, she was not entitled to any notice. 2 See Ind. Code ch. 31-19-2.5.

       Moreover, this is not a situation where Jocham strung Sutliff along by giving

       her time with K.J. to placate her and then suddenly and without warning cut

       her off after the adoption. In this case, although Sutliff alleged she was

       unaware of the filing of the petition for adoption, she was clearly aware that she

       should perhaps seek to protect her continued relationship with K.J., and

       moreover, she had ample time to do so. Sutliff could have sought grandparent

       visitation rights as early as 2008 when Jocham and Stephenie were divorced or

       after Stephenie’s death in 2011. And her overnight visits with K.J. were

       curtailed in June of 2012, after which she saw K.J. only sporadically. K.J.’s

       adoption by Emily was final in late September of 2012. Sutliff did not file her

       petition until July of 2013.




       2
         One way to avoid cutting off a grandparent’s opportunity to seek visitation rights by catching him or
       her unawares would be to amend the adoption statute to require notice of a petition for adoption be
       given to anyone who would be eligible under the GVA to seek grandparent visitation rights as of the
       time the petition is filed.

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[14]   In the original order denying Sutliff’s petition for lack of standing, the trial court

       acknowledged that grandparent visitation “may well be in the best interests of

       [K.J.],” Appellant’s App. at 64, and, upon granting Sutliff’s motion to correct

       error and hearing the merits of her petition, the trial court specifically found in

       its order granting grandparent visitation that Jocham’s conduct had been

       unreasonable and that “a visitation order in this case promotes K.J.’s best

       interests,” id. at 105.3 We sympathize with Sutliff’s plight, and we recognize

       that, especially in family law matters, more is undoubtedly involved than the

       legally relevant facts disclose. But the legally relevant facts are those upon

       which we must base our decision, and here, those facts lead inescapably to the

       conclusion that Sutliff had no legal right to seek grandparent visitation at the

       time she filed her petition. Regrettably, in situations such as this, the result may

       be inequitable and may not serve the purpose of the GVA, which is to

       “strengthen familial bonds and promote inter-generational contact” when the

       nuclear family no longer exists. In re Visitation of J.D.G., 756 N.E.2d 509, 512

       (Ind. Ct. App. 2001). However, it is not our place to judicially expand the

       statute beyond its explicit terms or to craft exceptions for specific circumstances.




       3
         Where issues involving a child arise, the primary concern is the best interests of that child. But the trial
       court can only engage in a best interests inquiry when a case is properly before it. The best interests of the
       child do not determine who has standing to raise the issue; they only determine whether a person with legal
       standing is entitled to the relief sought. When ruling on a properly filed petition, the trial court can assess the
       reasonableness of each party’s actions and level the playing field between an unreasonable denial of visitation
       by a parent and an unreasonable demand for visitation by a grandparent by carefully crafting a visitation
       order in terms of the time, frequency, and conditions of visitation that will best suit the child’s interests.
       Here, though, the trial court should not have reached these questions, and because we hold the trial court
       erred in allowing Sutliff’s petition to proceed, we do not reach them either.

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       The legislature drew a fine line on this issue between protecting inter-

       generational relationships and protecting newly-formed adoptive family units.

       Stepping into the role of an adoptive parent and building a successful new

       family unit takes courage and support. There must be some assurance that the

       circumstances as they exist at the time of the adoption will not be thrown into

       disarray months or even years later by a grandparent newly seeking visitation.


[15]   The trial court erred in finding Sutliff had standing, in granting her motion to

       correct error, and in ordering grandparent visitation between Sutliff and K.J.



                                                Conclusion
[16]   Because Sutliff filed her petition seeking grandparent visitation after K.J. had

       been adopted by Emily, she was no longer legally entitled to grandparent

       visitation rights. The trial court erred as a matter of law in granting Sutliff’s

       motion to correct error, considering her petition on the merits, and ordering

       grandparent visitation. The judgment of the trial court is reversed.


[17]   Reversed.


       Bailey, J., and Brown, J., concur.




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