Collard v. Enyeart, No. 48A05-9905-CV-198.

• Docket Nº: No. 48A05-9905-CV-198.
• Citation: 718 N.E.2d 1156
• Case Date: November 05, 1999
• Court: Court of Appeals of Indiana

718 N.E.2d 1156

Gary COLLARD and Kathy Collard, Appellants-Petitioners,
v.
Derrell J. ENYEART, Jr. and Cindy L. Enyeart, Appellees-Respondents

No. 48A05-9905-CV-198.

Court of Appeals of Indiana.

November 5, 1999.

718 N.E.2d 1158

Patrick R. Ragains, Smith, Ragains & Cotton, Anderson, Indiana, Attorney for Appellant

Robert W. Rock, Anderson, Indiana, Attorney for Appellee.

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OPINION

ROBB, Judge.

Gary and Kathy Collard (collectively the "Collards") appeal the trial court's order dismissing their petition seeking visitation with M.E., the adopted child of Derrell and Cindy Enyeart (collectively the "Enyearts"), under the Grandparent Visitation Act (the "Act").¹ We affirm.

Issue

The Collards raise one issue for our review, which we restate as whether the trial court properly dismissed the Collards' petition for grandparent visitation with M.E.

Facts and Procedural History

The facts most favorable to the judgment reveal that in 1987, the Collards' daughter gave birth to M.E. The Collards later adopted M.E. In 1993, the Collards gave their consent for the Enyearts to adopt M.E. The consents by the Collards contained a provision for weekly visitation with M.E. The decree granting adoption, however, terminated the Collards' parental rights and did not contain any provision for visitation. After the Collards exercised visitation for some period of time, their relationship with the Enyearts soured.

In 1996, the Collards brought an action wherein they requested relief from the decree and requested visitation. In the alternative, the Collards requested that the adoption of M.E. by the Enyearts be set aside. The trial court found that the Collards were not entitled to relief on the merits and that they did not timely pursue their request for relief from the 1993 decree. This court later affirmed the trial court's denial of the Collards' claims. Collard v. Enyeart, 48A04-9708-CV-333, 691 N.E.2d 522 (Ind.Ct.App. Feb. 9, 1998).

Thereafter, the Collards filed a petition with the trial court seeking grandparent visitation with M.E. under the Act. In response, the Enyearts filed a motion to dismiss which was later granted by the trial court. This appeal ensued.

Discussion And Decision

The Collards contend that the trial court erred in dismissing their petition to visit M.E. under the Act. Specifically, the Collards argue that because their daughter was the mother of M.E., they are his grandparents and thus, have standing under the Act to petition the trial court for visitation. Further, they argue that their adoption of M.E. did not terminate their status as his grandparents. We disagree.

I. Standard of Review

A motion to dismiss² under Indiana Trial Rule 12(B)(6) tests the legal sufficiency of the claim, not the facts which support it. Absher v. Clark County Rural Electric Membership Corp., 629 N.E.2d 870, 871 (Ind.Ct.App.1994), trans. denied. Review of a dismissal under Trial Rule 12(B)(6) is de novo, and thus deference

718 N.E.2d 1159

is not required with regard to the trial court's decision. Wilhoite v. Melvin Simon & Associates, Inc., 640 N.E.2d 382, 384 (Ind.Ct.App.1994). On review, we determine whether the complaint states any allegation upon which relief can be granted. Absher, 629 N.E.2d at 871. We evaluate the complaint in the light most favorable to the plaintiff with every intent regarded in his favor. Runde v. Vigus Realty, Inc., 617 N.E.2d 572, 575 (Ind.Ct.App.1993). A complaint cannot be dismissed under 12(B)(6) unless it appears to a certainty that the plaintiff would not be entitled to relief under any set of facts. Absher, 629 N.E.2d at 871. To state a claim for relief, a complaint need only contain: (1) a short and plain statement of the claim; and (2) a demand for relief. See T.R. 8(A)

II. Standing Under the Act

The Collards contend that they have standing under the Act to petition the trial court for visitation with M.E. Standing refers to the question of whether a party has an actual demonstrable injury for purposes of a lawsuit. Hammes v. Brumley, 659 N.E.2d 1021, 1029 (Ind. 1995). It is a prudential limitation on the ability of individuals to seek redress in our courts. Cablevision of Chicago v. Colby Cable Corp., 417 N.E.2d 348, 352 (Ind.Ct. App.1981). Standing "may be raised at any point during the litigation and if not raised by the parties it is the duty of the reviewing court to determine the issue sua sponte." McGaharan v. City of Fort Wayne, 178 Ind.App. 228, 381 N.E.2d 1093, 1095 (1978). The main purpose of standing is to insure that the party before the court has a substantive right to enforce the claim that is being made in the litigation. Pence v. State, 652 N.E.2d 486, 487 (Ind.1995). Standing remains an essential element in litigation which serves as a check on the exercise of judicial power by Indiana courts and thereby maintains our state constitutional scheme of separation of powers. Id. at 488. It mandates that the courts act in real cases, and refrain when called to engage in abstract speculation. Id.

The Collards assert that as his biological grandparents, they have a right to visit M.E. We have held that "[t]he only circumstances in which a grandparent may seek visitation rights are those enumerated in the Act." Sightes v. Barker, 684 N.E.2d 224, 226 (Ind.Ct.App.1997), trans. denied. Furthermore, grandparents must have standing to seek visitation of grandchildren under the Act. Lockhart v. Lockhart, 603 N.E.2d 864, 867 (Ind.Ct.App. 1992). If the Act does not provide standing for a particular class of grandparents to seek visitation rights, their petition must be denied as a matter of law. Id. The Act was enacted to strengthen familial bonds in an era which has seen a general disintegration of family bonds. Sightes, 684 N.E.2d at 231. The policy of the Act is to promote inter-generational contact and strengthen the bonds of the extended family when the nuclear family has been dissolved. Id.

Before the enactment of the Act, grandparents could seek visitation as could other interested third parties under limited circumstances. In re Visitation of J.O., 441 N.E.2d 991, 994 (Ind.Ct.App.1982). The Act was enacted in derogation of the common law, creating rights which had not previously existed. In re Visitation of J.P.H., 709 N.E.2d 44, 47 (Ind.Ct.App. 1999). Where statutory acts create rights in derogation of the common law, the statute creating those rights must be strictly construed. Wolf v. Boren, 685 N.E.2d 86, 88 (Ind.Ct.App.1997), trans. denied.

The Act provides that:

(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

(3) subject to subsection (b), the child is born out of wedlock.

(b) A court may not grant visitation rights to a paternal grandparent of a

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child who is born out of wedlock under subsection (a)(3) if the child's father has not established paternity

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