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Published by the Indiana Office of Court Services

In re Adoption of L.D., No. 49A02-0907-CV-671, __ N.E.2d. __ (Ind. Ct. App., Feb. 25, 2010)

February 26, 2010 Filed Under: Civil Tagged With: Appeals, E. Najam

NAJAM, J.
A.B. (“Mother”) [footnote omitted] and N.E. [footnote 2: “N.E. became L.D.’s adoptive maternal grandmother when she adopted Mother as an adult in 2005”] separately appeal from the trial court’s order denying their joint motion to set aside the court’s decree granting a petition filed by Jo.D. and Ja.D. (“Paternal Grandparents”) to adopt L.D. (“the Child”).
. . . .
The Grandparent Visitation Act provides the exclusive method for grandparents to seek visitation with a grandchild. Handshoe v. Ridgeway (In re J.E.M.), 870 N.E.2d 517, 519 (Ind. Ct. App. 2007) (citing In re Guardianship of Green, 525 N.E.2d 634, 636 (Ind. Ct. App. 1988)). The Act provides that
[v]isitation rights provided for in [Indiana Code Section 31-17-5-1 or Indiana Code Section 31-17-5-10] of this chapter survive the adoption of the child by any of the following:
(1) A stepparent.
(2) A person who is biologically related to the child as:
(A) a grandparent; (B) a sibling; (C) an aunt; (D) an uncle; (E) a niece; or (F) a nephew.
Ind. Code § 31-17-5-9 (emphasis added). In other words, whether a grandparent is entitled to visitation under the Act is determined by whether the adoptive parent was formerly a stepparent or someone from a list of persons biologically related to the child. See id.
Here, the Paternal Grandparents adopted Father as an infant. As such, the Paternal Grandparents are not biologically related to L.D. Thus, regardless of whether the visitation order in effect before the Decree is considered to be grandparent visitation granted under the Act, N.E. is not entitled to grandparent visitation with L.D. as a matter of law under Indiana Code Section 31-17-5-9.
Although not relevant to our determination on this issue, we pause to note the potential and presumably unintended inequity of Indiana Code Section 31-17-5-9 that is made evident by the particular facts of this case. Here, the Paternal Grandparents have been parents to Father since his infancy. Except for the lack of a biological relationship, they are for all intents and purposes Father’s parents and L.D’s grandparents. Yet, if N.E. had filed a petition to adopt L.D. and that petition had been granted, the Paternal Grandparents would as a matter of law have no visitation rights under the Act because N.E. is not biologically related to L.D., even though they have been lifelong parents to Father. Whether this consequence was intended or should be rectified we leave for the Legislature to decide.
FRIEDLANDER, J., and BRADFORD, J., concur.

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