Adoption of Gardiner, Matter of

• Decision Date: 23 January 1980
• Docket Number: No. 2-63109,2-63109
• Citation: 287 N.W.2d 555
• Parties: In the Matter of the ADOPTION of Timothy O'Brien GARDINER, a minor. Chester CRAWLEY and Lavona Crawley, Appellants, v. Dale GARDINER and Kathleen Gardiner, Appellees.
• Court: Iowa Supreme Court

Page 555

287 N.W.2d 555

In the Matter of the ADOPTION of Timothy O'Brien GARDINER, a minor.

Chester CRAWLEY and Lavona Crawley, Appellants, v. Dale GARDINER and Kathleen Gardiner, Appellees.

No. 2-63109.

Supreme Court of Iowa.

Jan. 23, 1980.

Donald R. Ferree, Panora, for appellants.

Robert Y. Taylor of Taylor, Taylor & Feilmeyer, Guthrie Center, for appellees.

Considered by LeGRAND, P. J., and REES, UHLENHOPP, ALLBEE, and LARSON, JJ.

UHLENHOPP, Justice.

This appeal involves the question of the jurisdiction of an adoption court to grant visitation privileges to the natural grandparents of the child. Chester and Lavona Crawley, maternal grandparents, appeal from a decree modifying a clause in an adoption decree allowing them to visit their grandchild Timothy O'Brien Gardiner. The adoption decree named Dale and Kathleen Gardiner as Timothy's adoptive parents. The Crawleys assert that the trial court committed a number of errors in the modification proceeding. With permission, the parties filed supplemental briefs on the question of the jurisdiction of an adoption court to grant grandparental visitation. We do not reach the alleged errors the Crawleys originally assigned, since we find the appeal turns on the power of an adoption court to grant visitation. Although the adoption decree in question purports to grant visitation rights to additional relatives, this appeal actually involves only the Crawleys' visitation.

Timothy was born to Larry Dean and Peggy Sue Gardiner on May 8, 1975. Peggy Sue died on February 19, 1976. The Guthrie County District Court terminated Larry's parental rights on September 12, 1977, and placed Timothy in the custody of the Iowa Department of Social Services.

The Crawleys are Peggy Sue's parents. They apparently had the actual care of Timothy for approximately three weeks following Peggy Sue's death. On March 9, 1976, Timothy was placed in the home of Dale and Kathleen Gardiner; Dale is Larry Dean's brother. On August 16, 1978, on recommendation of the Iowa Department of Social Services, the district court entered an adoption decree naming Dale and Kathleen as Timothy's parents.

The adoption decree granted specific visitation rights to the Crawleys. The visitation clause reads thus:

Monthly visitation commencing with the fourth weekend of each month beginning with the month of June, 1978, from Saturday morning at 10:00 A.M. to Sunday evening at 6:00 P.M. and out of the adoptive parents home with the visiting parties to give reasonable notice of at least 24 hours prior to said monthly visitation if they will be unable to exercise the same; a summer visitation consisting of two weeks and sometime between the months of June through August of each year, commencing with the summer of 1978 with the visiting parties to give fourteen (14) days advance notice of the time they will commence the exercise of said visitation right, a Christmas visitation period with said child of at least three (3) days, commencing with Christmas Day during the said period and to alternate Christmas Day thereafter with the adoptive parents and with the visiting parties to give at least fourteen (14) days advance notice of the specific time they will exercise said Christmas visitation. . . .

The adoption court based its authority to permit visitation on "the power . . . granted under Chapter 600, Chapter 633, Chapter 598 of the Code of Iowa (1977), and pursuant to the inherent powers held by this Court sitting as a Court of equity to establish and determine the best interests of all parties concerned, including Timothy O'Brien Gardiner."

On December 13, 1978, Dale and Kathleen petitioned the district court for modification of the visitation rights in the adoption decree. The court granted the modification, and the Crawleys appealed.

We are not dealing with consensual visitation where, by agreement of all concerned, natural grandparents visit a child adopted by others. We deal here with a purported legally enforceable Right of visitation by grandparents.

I. We can find no authorization in chapter 600 for the visitation clause in the adoption decree. Adoption was unknown at common law; it is statutory. In re Fitzgerald's Estate, 223 Iowa 141, 145, 272 N.W. 117, 119 (1937). Chapter 600 authorizes adoption in this state and makes no reference to visitation rights of any kind. Although section 600.1 states that the "welfare of the person to be adopted shall be the paramount consideration in interpreting this division," it goes on to provide that "the interests of the adopting parents shall be given due consideration in this interpretation." Without more specific legislative authorization, we are unable to find that chapter 600 empowers Iowa courts to grant grandparental visitation in adoption decrees. This is especially true in view of section 600.13(4) which expressly terminates the rights of natural parents upon an adoption.

II. Neither do we find any authorization in chapter 633 of the Code for the visitation clause in the adoption decree. That chapter contains our probate code. The provision of the chapter which refers specifically to the effect of adoption is section 633.223. The section states essentially that an adopted person inherits from the adoptive parents and the adoptive parents inherit from the adopted person, the same as if the adopted person were a natural born child. We find no intimation in this provision, or in any of the others in the chapter, that natural parents or their parents may be granted visitation privileges in an adoption proceeding.

III. One section in chapter 598 of the Code provides a stronger basis for the visitation clause in the adoption decree. Section 598.35 expressly authorizes the award of grandparental visitation in several situations:

The grandparents of a child may petition the district court for grandchild visitation rights when:

1. The parents of the child are divorced, or

2. A petition for dissolution of marriage has been filed by one of the parents of the child, or

3. The parent of the child, who is the child of the grandparents, has died, or

4. The child has been placed in a foster home.

A petition for grandchild visitation rights shall be granted only upon a finding that the visitation is in the best interests of the child.

Apparently the provision principally relied on by the trial court in granting the Crawleys visitation privileges is paragraph 3 of section 598.35.

Section 598.35 was placed in the chapter of the Code on marriage dissolutions, but this appears to be the action of the Code Editor. The act which created section 598.35 was an independent one containing only the provisions of that section; it was not amendatory of chapter 598 or any other chapter. 1974 Session, 65th G.A., ch. 1253.

In applying statutes similar to section 598.35, the courts in several jurisdictions have had to resolve an apparent conflict between those statutes and the adoption laws. This conflict involves tension between the goals of creating a new family unit for adopted children, on the one hand, and of allowing continuing grandparental contact with grandchildren who have lost a parent, on the other.

This state's policy of providing a "fresh start" for adopted children is reflected in section 600.13(4) of the adoption chapter, which provides that

(a) final adoption decree terminates any parental rights, except those of a spouse of the adoption petitioner, existing at the time of its issuance and establishes the parent-child relationship between the adoption petitioner and the person petitioned to be adopted. Unless otherwise specified by law, such parent-child relationship shall be deemed to have been created at the birth of the child.

See also §§ 600.16, 600.24 (restrictions on access to adoption records); § 600.13(5) (issuance of new birth certificate).

A. Jurisdictions which have addressed the question of whether an adoption decree which terminates parental rights also terminates rights provided by grandparental visitation statutes are split on the issue. Apparently the greater number hold that adoption does not permit a legal grant of visitation privileges to natural grandparents. See Poe v. Case, 565 S.W.2d 612, 614 (Ark.1978); Lee v. Kepler, 197 So.2d 570, 573 (Fla.Dist.Ct.App.1967); Browning v. Tarwater, 215 Kan. 501, 506, 524 P.2d 1135, 1139 (1974); Smith v. Trosclair, 321 So.2d 514, 516 (La.1975); Bikos v. Nobliski, 88 Mich.App. 157, 163, 276 N.W.2d 541, 544 (1979); Levine v. Rado, 54 Misc.2d 843, 845, 283 N.Y.S.2d 483, 486 (Sup.Ct.1967); Acker v. Barnes, 33 N.C.App. 750, 752, 236 S.E.2d 715, 716, Cert. denied, 293 N.C. 360, 238 S.E.2d 149 (1977); In re Fox, 567 P.2d 985, 986 (Okl.1977); Deweese v. Crawford, 520 S.W.2d 522, 526 (Tex.Ct.App.1975). See also, 2 Am.Jur.2d Adoption § 85, at 929 (1962) ("(W)here the adoption statute gives the adopted child the status of a natural child and frees the natural parents of legal obligations toward it, a court in granting an adoption decree is without authority to include in the adoption decree a grant of visitation privileges to the parent or members of the parents' family."). Several other courts have found that adoption does not, in all instances, prohibit a grant of visitation by natural grandparents. See Futral v. Henry, 45 Ala.App. 214, 215, 228 So.2d 827, 828 (1969) (dictum); Roquemore v. Roquemore, 275 Cal.App.2d 912, 917, 80 Cal.Rptr. 432, 435 (1969); Mimkon v. Ford, 66 N.J. 426, 437, 332 A.2d 199, 202 (1975); Scranton v. Hutter, 40 A.D.2d 296, 299, 339 N.Y.S.2d 708, 711 (Sup.Ct.1973); Graziano v. Davis, 50 Ohio App.2d 83, 90, 361 N.E.2d 525, 530 (1976).

Two basic arguments, both policy-oriented, underlie the reasoning of the courts which hold that adoption prevents a grant of grandparental visitation. In reaching the same result, we rely on only the second of those grounds.

The first reason advanced by the courts is that grandparental visitation, when against the wishes of the adoptive parents,...