In the Matter of the Paternity of E.H. Paul Bobby Hernandez v. Alvina Casillas and Paul Hernandez , 121 N.E.3d 594 ( 2019 )

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
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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.
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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.
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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
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(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
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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.
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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’
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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
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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.
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