In re E.H., No. 18A-JP-2137, __ N.E.3d __ (Ind. Ct. App., March 29, 2019).

Pyle, J.

Statement of the Case

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 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.

We reverse.

Issue

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

….

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 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).

….

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. 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 App. 1982), superceded by rule on other grounds as recognized in Bowlers County Club, Inc., v. Royal Links USA, Inc., 846 N.E.2d 732, 745-36 (Ind.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.

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’ visitation rights are derivative of those of the noncustodial parent who is their child. See id.

….

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).

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 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.

Reversed.

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

 

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