                                                                                FILED
                                                                           Mar 29 2019, 6:45 am

                                                                                CLERK
                                                                            Indiana Supreme Court
                                                                               Court of Appeals
                                                                                 and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEY FOR APPELLEE
      Christopher J. Evans                                       DawnMarie White
      Noblesville, Indiana                                       Swenson & Associates PC
                                                                 Carmel, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      In the Matter of the Paternity of                          March 29, 2019
      E.H.;                                                      Court of Appeals Case No.
                                                                 18A-JP-2137
      Paul Bobby Hernandez,
                                                                 Appeal from the Marion Circuit
      Appellant-Respondent,                                      Court
              v.                                                 The Honorable Sheryl L. Lynch,
                                                                 Judge
      Alvina Casillas and Paul                                   The Honorable Marie L. Kern,
      Hernandez,                                                 Magistrate

      Appellees-Petitioners.                                     Trial Court Cause Nos.
                                                                 49C01-1803-JP-10858
                                                                 49C01-1803-JP-10865



      Pyle, Judge.


                                         Statement of the Case
[1]   In this consolidated appeal, Paul Bobby Hernandez (“Father”) appeals the trial

      court’s order, which concluded that Alvina Casillas and Paul Hernandez

      (“Casillas and Hernandez”) have standing to seek grandparent visitation of

      Court of Appeals of Indiana | Opinion 18A-JP-2137 | March 29, 2019                            Page 1 of 9
      Father’s adopted children, E.H. (“E.H.”) and I.H. (“I.H.”) (collectively “the

      children”). Concluding that Casillas and Hernandez do not have standing to

      seek visitation, we reverse the trial court’s order.


[2]   We reverse.


                                                           Issue
                 Whether the trial court erroneously concluded that Grandparents
                 have standing to seek visitation of Father’s adopted children.


                                                           Facts
[3]   The facts are undisputed. E.H., who was born in March 2005, and I.H., who

      was born in December 2005, were adjudicated to be Children in Need of

      Services. In January 2017, the trial court terminated the parental rights of the

      children’s biological parents. Father, the children’s biological maternal uncle,

      and his significant other adopted the children. Father and his significant other

      are not married.


[4]   In March 2018, Casillas and Hernandez, the children’s biological maternal

      grandparents, filed petitions for grandparent visitation as maternal

      grandparents.1 Father filed motions to dismiss wherein he argued that Casillas

      and Hernandez lacked standing to pursue visitation with the children because




      1
          Casillas and Hernandez filed separate petitions for each child.


      Court of Appeals of Indiana | Opinion 18A-JP-2137 | March 29, 2019           Page 2 of 9
      no visitation order had been established before the adoption and their visitation

      petition had been filed after the adoption.


[5]   In July 2018, Casillas and Hernandez filed amended petitions for grandparent

      visitation as paternal grandparents. Father responded to the petitions with

      motions to dismiss wherein he argued that Casillas and Hernandez lacked

      standing to petition for grandparent visitation because they did not meet the

      statutory requirements to seek visitation.


[6]   Following a hearing, in September 2018, the trial court issued orders wherein it

      explained that because Father and his significant other were not married when

      they adopted the children, the children were “technically . . . ‘born’ out of

      wedlock.” (App. Vol. 2 at 46). Therefore, according to the trial court, Casillas

      and Hernandez had standing to seek grandparent visitation. Father appeals the

      trial court’s orders.2


                                                     Decision
[7]   Father appeals the trial court’s order concluding that Casillas and Hernandez

      had standing to seek grandparent visitation. He specifically argues that Casillas

      and Hernandez do not have standing to seek grandparent visitation because

      they do not meet the statutory requirements for standing. Casillas and

      Hernandez respond that they “have standing to seek grandparent visitation as




      2
          The two cases have been consolidated on appeal.


      Court of Appeals of Indiana | Opinion 18A-JP-2137 | March 29, 2019         Page 3 of 9
      paternity was established in [Father] through the adoption proceeding and the

      minor children were born out of wedlock as [Father] was not married when the

      adoption was finalized.” (Appellees’ Br. at 2).


[8]   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”),

      currently codified at INDIANA CODE §§ 31-17-5-1 through -10, 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. Id. If a

      grandparent lacks standing, the petition must be dismissed as a matter of law.

      Id. “Courts are not the proper forum for all inter-family disputes and we shall

      not open the doors of the court to resolve such personal problems as do not

      come within the statute relied upon.” In re Visitation of J.O., 441 N.E.2d 991,

      995 (Ind. Ct. App. 1982).


[9]   The GVA provides, in relevant part, as follows:


              (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 Indiana; or


      Court of Appeals of Indiana | Opinion 18A-JP-2137 | March 29, 2019        Page 4 of 9
                        (3)      subject to subsection (b), the child was born out of
                                 wedlock.


               (b)    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.


       IND. CODE § 31-17-5-1.

[10]   This case requires us to interpret the GVA.


               When interpreting a statute, the foremost objective is to
               determine and effect legislative intent. Statutes must be
               construed to give effect to legislative intent, and courts must give
               deference to such intent whenever possible. Thus, courts must
               consider the goals of the statute and the reasons and policies
               underlying the statute’s enactment. Courts are to examine and
               interpret a statute as a whole, giving words their common and
               ordinary meaning, and not overemphasize a strict, literal, or
               selective reading of individual words. Words and phrases are
               taken in their plain, ordinary, and usual meaning unless a
               different purpose is manifested by the statute. Where possible,
               every word must be given effect and meaning, and no part is to
               be held meaningless if it can be reconciled with the rest of the
               statute.


       A.J.A., 991 N.E.2d at 113 (quoting JKB, Sr. v. Armour Pharmaceutical Co., 660

       N.E.2d 602, 605 (Ind. Ct. App. 1996), trans. denied). “[C]ourts will reject an

       interpretation of a statute which produces an absurd result.” JKB at 605.


[11]   Our decision in A.J.A. is instructive in aiding in the interpretation of the GVA

       statute. In that case, father killed mother in the presence of their two small


       Court of Appeals of Indiana | Opinion 18A-JP-2137 | March 29, 2019               Page 5 of 9
       children and was subsequently sentenced to sixty years. Paternal grandmother

       filed a petition for grandparent visitation. She argued that she should have

       standing under sections (1) or (2) of the GVA because her son should be

       considered deceased based on his sixty-year prison sentence and the marriage

       was technically dissolved due to father murdering mother. The Indiana Supreme

       Court concluded that “both of [g]randmother’s theories would produce an absurd

       result.” A.J.A., 991 N.E.2d at 113. The Court specifically explained that her first

       theory, that her son was for all intents and purposes, deceased, was “an

       unfortunate attempt[] to circumvent the strict interpretation the statute [was] due

       and therefore her argument fail[ed].” Id. According to the Indiana Supreme

       Court, there is “clearly a difference between those who, as [g]randmother

       argue[d], are essentially dead because they are in prison, and those who are

       dead.” Id. The Supreme Court further concluded that grandmother’s other

       theory for grandparent visitation, that by virtue of the murder, the marriage was

       dissolved, “produce[d] an even more nonsensical result.” Id. at 114.


[12]   Here, as in A.J.A., Casillas and Hernandez’s theory, that the children were born

       out of wedlock because Father was single when he adopted them, would produce

       an absurd result and was surely not the intent of the legislature. Specifically,

       Casillas and Hernandez’ theory is an attempt to circumvent the strict

       interpretation of the statute. There is clearly a difference between being “born

       out of wedlock” and being adopted by an unmarried person. See id. A decree of

       adoption “‘severs forever every part of the parent and child relationship; severs

       the child entirely from its own family tree and engrafts it upon that of another.


       Court of Appeals of Indiana | Opinion 18A-JP-2137 | March 29, 2019        Page 6 of 9
       For all legal and practical purposes a child is the same as dead to its parents.’”

       Schmitter v. Fawley, 929 N.E.2d 859, 861 (Ind. Ct. App. 2010) (quoting In re

       Adoption of Thomas, 431 N.E.2d 506, 513 (Ind. Ct. App. 1982), superceded by rule

       on other grounds as recognized in Bowlers County Club, Inc., v. Royal Links USA, Inc.,

       846 N.E.2d 732, 745-36 (Ind. Ct. App. 2006), trans. denied). “‘This rule means

       when an adoption becomes final the adoptive parents becomes the actual parent

       of the child.’” Schmitter, (quoting In re the Visitation of Menzie, 469 N.E.2d 1225,

       1227 (Ind. Ct. App. 1984). An adoption is not a birth. Casillas and Hernandez

       do not have standing to seek grandparent visitation, and the trial court erred

       when it concluded that they did.


[13]   We further note that “[i]t has long been recognized in our traditions and

       collective conscience that parents have the right to raise their children as they see

       fit. Unless there is some compelling governmental interest, it is well-established

       that government will not intervene in private family matters.”            Lockhart v.

       Lockhart, 603 N.E.2d 864, 866 (Ind. Ct. App. 1992) (citing Griswold v. Connecticut,

       381 U.S. 479 (1965)). In light of our traditions, we do not believe that the

       legislature intended the GVA to apply where the grandparents seek visitation

       over the objection of a custodial parent who is their own child. See Olds v. Old,

       356 N.W.2d 571, 574 (Ia. 1984) (holding that the legislature did not intend statute

       allowing grandparent visitation to apply where the grandparents sought visitation

       over the objections of a custodial parent who was their own child). Rather, we

       believe that the GVA was intended to apply only when the parent who is not

       their child is the custodial parent. See id. In such cases, the grandparents’

       Court of Appeals of Indiana | Opinion 18A-JP-2137 | March 29, 2019           Page 7 of 9
       visitation rights are derivative of those of the noncustodial parent who is their

       child. See id.


[14]   This result is consistent with our decision in In re the Visitation of C.R.P., 909

       N.E.2d 1026, 1028 (Ind. Ct. App. 2009), trans. denied, wherein we held that

       INDIANA CODE § 31-17-5-1(a) confers standing only upon grandparents who are

       the parents of the child’s deceased parent. In such a situation, the grandparents

       have lost their opportunity to seek visitation through their deceased child. The

       GVA contemplates a subsequent dispute over a visitation between the

       grandparents and a custodian of the children who is not the grandparents’ child.

       The statute does not provide a means for court intervention, however, when the

       dispute is between the grandparents and a custodial parent who is their child.


[15]   Here, pursuant to the adoption, Father is the custodial parent of E.H. and I.H.

       The grandparents who seek visitation with the children are the parents of Father.

       They are therefore improperly seeking court intervention in a dispute with their

       own child. The legislature simply did not contemplate such a situation when

       enacting the GVA. This would “constitute an unwarranted encroachment into

       the right of [Father]] to raise [his children] as [he saw] fit.” In re Visitation of

       J.P.H., 709 N.E.2d 44, 47 (Ind. Ct. App. 1999).


[16]   Lastly, we note that E.H. and I.H. do not even meet the statutory definition of

       “child.” Specifically, INDIANA CODE § 31-9-2-13 defines child for the purpose of

       INDIANA CODE § 31-17 as a “child . . . of both parties to the marriage.” The term

       also includes “[c]hildren born out of wedlock to the parties” and “[c]hildren born


       Court of Appeals of Indiana | Opinion 18A-JP-2137 | March 29, 2019         Page 8 of 9
       or adopted during the marriage of the parties.” (Emphasis added). Here, the

       children were adopted, but the adoption did not occur during a marriage. This

       statutory definition simply does not include children adopted by single,

       unmarried persons.


[17]   Reversed.


       Najam, J., and Altice, J., concur.




       Court of Appeals of Indiana | Opinion 18A-JP-2137 | March 29, 2019   Page 9 of 9
