FOR PUBLICATION


ATTORNEY FOR APPELLANT:                          APPELLEES PRO SE:

DEBORAH M. AGARD                                 SEIJI BRYANT
Law Office of Deborah M. Agard                   JOSEPH BREWSTER
Indianapolis, Indiana                            Anderson, Indiana

                                                                      Mar 27 2013, 9:02 am

                                 IN THE
                       COURT OF APPEALS OF INDIANA

IN RE THE GUARDIANSHIP OF                        )
A.J.A. and L.M.A., Minor Children,               )
                                                 )
J.C.,                                            )
                                                 )
        Appellant-Intervenor,                    )
                                                 )
                 vs.                             )      No. 48A02-1204-GU-326
                                                 )
J.B. and S.B.,                                   )
                                                 )
        Appellees-Petitioners.                   )


                       APPEAL FROM THE MADISON SUPERIOR COURT 2
                             The Honorable G. George Pancol, Judge
                                Cause No. 48D02-1011-GU-367



                                       March 27, 2013

                                 OPINION – FOR PUBLICATION

BAKER, Judge
       Paternal Grandmother J.C. (Grandmother) appeals from the trial court’s order

vacating the grandparent visitation rights she had enjoyed since 2009 on the basis that the

trial court that initially granted these rights lacked the statutory authority to do so.

Among other things, Grandmother contends that her lack of standing under the

Grandparent Visitation Act was waived when her granddaughters’ guardians, J.B. and

S.B. (collectively, “the Guardians”), failed to appeal the original order. The Guardians

cross-appeal, arguing that even if their objection to the original order was waived,

Grandmother’s appeal is nevertheless moot because S.B., a non-relative, and J.B. have

since adopted the girls, and grandparent visitation rights do not survive adoption by a

non-relative.

       We conclude that although Grandmother did lack standing to pursue the original

grandparent visitation order, the Guardians’ objections to her want of standing were

waived when they failed to appeal the original order.            We also conclude that

Grandmother’s visitation rights were not terminated by the adoption because the girls

were not adopted only by S.B. but also by J.B., who is their uncle. As a result, we

reverse the judgment of the trial court.

                                           FACTS

       On April 23, 2008, M.A. shot his wife multiple times, killing her. Their two little

girls, A.J.A. and L.M.A., were present at the home at the time of the murder. That same

day, M.A.’s half brother, J.B., and J.B.’s partner, S.B., took A.J.A. and L.M.A. into their



                                             2
home. Soon thereafter, J.B. and S.B. filed for guardianship of the girls with the support

of both families.

       In May, the Guardians enrolled A.J.A. in counseling with Jean Manis, a licensed

clinical social worker. A.J.A. was diagnosed with Post-Traumatic Stress Disorder.

       On June 5, 2008, J.B. asked Grandmother to pick A.J.A. up from a counseling

session. When Grandmother arrived, she took A.J.A. to the parking lot of the jail where

M.A. was being held in pre-trial detention. Grandmother told A.J.A. that her daddy was

living there and that he was safe. Grandmother had A.J.A. get out of the car, and M.A.,

who was outside for recreation time, yelled to A.J.A. that he loved her. Grandmother did

not inform J.B. or S.B. that she took A.J.A. to the jail until after A.J.A. told them.

Consequently, J.B. told Grandmother that she could no longer see the children without

supervision because he could not trust her judgment.

       The guardianship was granted on July 3, 2008. On July 10, 2008, Grandmother

filed a motion to intervene in the guardianship and a petition for grandparent visitation

with A.J.A. and L.M.A.      Grandmother’s motion to intervene was granted over the

objection of the Guardians, who argued that Grandmother did not have standing to pursue

grandparent visitation because she was the mother of M.A., who was still living.

       In August 2008, the parties agreed to a provisional visitation schedule that allowed

for one hour of weekly supervised visitation for Grandmother for a six-week period. The

parties also agreed to start family counseling at Anderson Psychiatric Clinic to try to

facilitate further visitation. The guardianship court approved the provisional agreement.

                                            3
       Evidence on Grandmother’s visitation petition was presented by both parties over

four hearings in February, April, and May 2009. On June 1, 2009, the trial court entered

an order granting Grandmother unsupervised grandparent visitation according to a strict

schedule.

       After Grandmother’s visitation petition was granted, the Guardians filed a motion

to correct error, arguing that the trial court erred by granting the petition and by failing to

make specific findings of fact and conclusions of law. On July 6, 2009, the trial court

issued an amended order with specific findings of fact and conclusions of law but kept

the remainder of the prior order intact. The Guardians did not appeal the amended order.

       The Guardians filed a petition to adopt A.J.A. and L.M.A. in October 2009 after

the maternal aunt of A.J.A. and L.M.A. filed an adoption petition the month before. In

November 2010, the parties agreed to transfer the guardianship case to Madison Superior

Court II to be consolidated with the pending adoption matters.            On April 5, 2011,

Grandmother filed a preemptive “Objection to Modification of Grandparent Visitation.”

Appellant’s App. p. 69.

       In July 2011, a parenting coordinator was appointed to assist the Guardians in

facilitating visitation with the girls’ maternal aunt and other grandparents. On January 9,

2012, the parenting coordinator submitted documentation to the court stating that on at

least one occasion in December 2011, Grandmother had initiated a telephone

conversation between M.A. and one of the children.               The parenting coordinator

recommended that all future grandparent visitation for Grandmother be supervised. On

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January 19, 2012, a hearing was held on the parenting coordinator’s recommendation.

The court did not restrict Grandmother’s visitation but instead admonished her from

facilitating any type of contact between M.A. and the children during her visitation in the

future.

          Later that same day, the Guardians filed a petition to terminate Grandmother’s

visitation. In their petition, the Guardians argued that Grandmother never had standing

under the grandparent visitation statute and that, therefore, the trial court had lacked

subject-matter jurisdiction to enter the original grandparent visitation order. On February

28, 2012, Grandmother filed her response, which alleged that the Guardians had waived

their standing argument by consenting to the provisional visitation agreement and by

failing to appeal the original grandparent visitation order.

          On March 7, 2012, the trial court held a hearing on the Guardians’ motion to

terminate grandparent visitation. The attorneys for Grandmother and the Guardians made

legal arguments on the motion to terminate grandparent visitation, but no further

evidence was presented as to the grandparent visitation issue.

          On March 26, 2012, the trial court found that the original grandparent visitation

order was void for lack of subject-matter jurisdiction because the court had lacked the

authority to grant Grandmother visitation rights when she was not the parent of the girls’

deceased parent and the marriage of the girls’ parents had not been dissolved at the time




                                              5
of their mother’s death.         Based on these conclusions, the trial court vacated the

grandparent visitation order. Grandmother now appeals.1

                                 DISCUSSION AND DECISION

        Grandmother challenges the trial court’s order terminating her grandparent

visitation rights on two grounds: (1) Grandmother did have standing because M.A.’s

marriage was dissolved when he murdered his wife; and (2) the Guardians waived their

objection to her lack of standing by failing to appeal the original grandparent visitation

order. The Guardians cross-appeal, claiming that because they have since adopted A.J.A.

and L.M.A. and S.B. is not biologically related to them, Grandmother’s visitation rights,

to the extent they ever existed, cannot survive.

                                             I. Mootness

        We first address whether Grandmother’s appeal is moot because A.J.A. and

L.M.A. have since been adopted by J.B., who is their biological father’s half brother, and

S.B., who is J.B.’s partner. The Guardians contend that because S.B. is not biologically

related to A.J.A. and L.M.A., the adoption terminated any grandparent visitation rights

enjoyed by Grandmother.

        Indiana Code section 31-17-5-9 provides that grandparent visitation rights survive

the adoption of the child by a stepparent or certain biologically-related relatives,


1
  On November 15, 2012, Grandmother filed a motion to strike certain materials from the Guardians’
appendix. This motion is granted in part as to pages 67 to 77 and 91 to 92 of the Guardians’ appendix.
Grandmother also requests attorney fees pursuant to Appellate Rule 66(E) on the basis that the Guardians’
inclusion of these materials was bad faith. We think otherwise and decline Grandmother’s invitation to
award attorney fees.
                                                   6
including an uncle. In interpreting the statutory language of the Act, we apply a de novo

standard of review. In re Guardianship of E.N., 877 N.E.2d 795, 798 (Ind. 2007). We

strive to give effect to the intent of the legislature, and we recognize that “the best

evidence of legislative intent is the language of the statute itself.” Cubel v. Cubel, 876

N.E.2d 1117, 1120 (Ind. 2007). “[T]he words in a statute must be given their plain and

ordinary meaning unless otherwise indicated by the statute.” Id.

        We note that Indiana Code section 31-17-5-9 does not state that adoption by a

non-relative terminates grandparent visitation; rather, it provides situations when

grandparent visitation rights survive, and adoption by a biologically-related uncle is one

of those situations. The Guardians assert that because J.B. is a half brother rather than a

“full blooded brother” to M.A., he is not an “uncle” under the statute. Appellees’ Br. p.

16. However, the plain and ordinary meaning of “uncle” is “[t]he brother of one’s

mother or father.” American Heritage Dictionary of the English Language 1394 (1978).

And “brother” is defined as “[a] male having the same mother and father as another, full

brother, or one having one parent in common with another, half brother.” Id. at 169.

Accordingly, J.B. is an “uncle” under the statute such that Grandmother’s grandparent

visitation rights, to the extent they existed, survived his adoption of A.J.A. and L.M.A.

The fact that S.B. also adopted the girls is not dispositive. Grandmother’s appeal is not

moot.

                                II. Grandmother’s Claims



                                            7
          As noted above, Grandmother contends that she had standing to pursue

grandparent visitation because M.A.’s marriage was dissolved when he murdered his

wife, and that even if she did not have standing, the Guardians nevertheless waived their

objections to her standing when they failed to appeal the original order.

          Today, the Grandparent Visitation Act (the Act) provides the sole remedy for

grandparents seeking court-ordered visitation with their grandchildren.2 Pursuant to the

Act, a grandparent may seek visitation if: (1) the child’s parent is deceased; (2) the

marriage of the child’s parents has been dissolved in Indiana; or (3) the child was born

out of wedlock. Ind. Code § 31-17-5-1. Moreover, grandparent visitation rights may

only be granted if a court determines that the visitation will be in the best interests of the

child. I.C. § 31-17-5-2(a).

          For a grandparent to have standing on the basis of the child having a deceased

parent, that grandparent must be the parent of the deceased. In re Visitation of C.R.P.,

909 N.E.2d 1026, 1028 (Ind. Ct. App. 2009). Here, Grandmother is the parent of M.A.,

who is still alive, albeit likely incarcerated at least until the girls reach the age of

majority.3 Nevertheless, it appears that Grandmother was erroneously granted initial




2
  Although many of this Court’s decisions refer to the Act as being enacted in derogation of the common
law, this is not entirely correct as there were some common law visitation rights afforded to grandparents
prior to its enactment. See In re Guardianship of Green, 525 N.E.2d 634, 636 (Ind. Ct. App. 1988)
(stating that despite the existence of preexisting common law rights, the courts have since strictly limited
grandparent visitation to the grounds recognized in the Act).
3
    M.A. was sentenced to serve sixty years in the Indiana Department of Correction.
                                                      8
grandparent visitation rights on the basis of the children’s mother being deceased.

Appellant’s App. p. 51.

         Grandmother now argues that the original trial court did not state on what basis it

found she had standing and that it could have granted her standing on the basis that her

son’s marriage was dissolved by virtue of him killing his wife. Because Grandmother did

not raise this argument in the underlying proceedings, it is waived on appeal. See Hite v.

Vanderburgh Cnty. Office of Family & Children, 845 N.E.2d 175, 180 (Ind. Ct. App.

2006).

         Waiver notwithstanding, however, Grandmother’s argument still fails. It is true

that “dissolved” is not defined under the Act. However, we think that in context, the term

clearly refers to a marriage being terminated by a final dissolution decree. See Ind. Code

§ 31-9-2-41 (defining “dissolution decree” as a “judicial decree . . . [that] has the effect of

terminating the marriage and restoring the parties to the state of unmarried persons”); Ind.

Code § 31-15-2-16(d) (referring to a dissolution decree as a “decree that dissolves the

marriage”).      Moreover, to give this subsection the interpretation desired by

Grandmother—that a marriage is dissolved when one of the parents is killed by the

other—would render the first subsection meaningless. See Pabey v. Pastrick, 816 N.E.2d

1138, 1148 (Ind. 2004) (stating that courts should not presume that the legislature would

enact a useless provision and thus should attempt to give effect to every word of a

statute). Therefore, Grandmother had no standing to seek grandparent visitation under

the Act.

                                              9
       As noted above, however, Grandmother contends that the Guardians’ failure to

appeal the original visitation order results in a waiver of her lack of standing under the

Act. More particularly, Grandmother asserts that her lack of standing resulted only in the

trial court having no jurisdiction over the case as opposed to no subject-matter

jurisdiction. Our Supreme Court has disapproved of the use of the term “jurisdiction over

the case” because it confuses subject-matter jurisdiction, which cannot be waived, with

legal errors that may be waived. K.S. v. State, 849 N.E.2d 538, 540-41 (Ind. 2006).

According to K.S., where subject-matter jurisdiction and personal jurisdiction exist, “a

court’s decision may be set aside for legal error only through direct appeal and not

through collateral attack.” Id. at 540.

       Subject-matter jurisdiction exists where “a court has jurisdiction over the general

class of actions to which a particular case belongs.” Troxel v. Troxel, 737 N.E.2d 745

N.E.2d 745, 749 (Ind. 2000). Here, the trial court undoubtedly had jurisdiction to hear

grandparent visitation cases generally.    See Ind. Code § 33-29-1-1.5(1) (stating that

superior courts have original jurisdiction over all civil and criminal cases). In addition,

there is no question that the court had personal jurisdiction over the parties, with the

Guardians submitting to the authority of the court by filing the initial guardianship

proceedings and Grandmother submitting to the court’s authority by intervening in those

proceedings. See Ind. Trial Rule 4(A).

       Nevertheless, the Guardians maintain that the initial grandparent visitation order

was void ab initio because the legislature never intended for Grandmother to have

                                            10
standing to pursue visitation. The Guardians seek to distinguish K.S. by directing us to

M.S. v. C.S., 938 N.E.2d 278 (Ind. Ct. App. 2010). In M.S., this Court held that a joint

custody order between a parent and a third party was void because the trial court lacked

the statutory authority to enter such an order “under any set of circumstances, and the

error was therefore impossible to cure.” 938 N.E.2d at 284.

       Although M.S. was decided after K.S., it failed to address any implications that

K.S. might have had on its analysis and instead relied upon pre-K.S. reasoning from

earlier opinions of the Court of Appeals. In light of the above-quoted language from

K.S., however, we decline to follow the paradigm for void and voidable judgments as

explained in M.S.      Accordingly, we conclude that although the initial grandparent

visitation order may have been erroneous, the Guardians nevertheless waived their

objections to Grandmother’s standing when they failed to appeal.

       Notwithstanding this conclusion, we note that the trial court “may modify an order

granting or denying [grandparent] visitation rights whenever modification would serve

the best interests of the child.” I.C. § 31-17-5-7. Given that nearly a year has passed

since the grandparent visitation order has been vacated, it may be wise for the trial court

to schedule a hearing sua sponte on the children’s best interests to determine whether and

to what extent grandparent visitation should occur in the future.

       The judgment of the trial court is reversed.

RILEY, J., and BARNES, J., concur.



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