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COA: inequity in grandparent visitation act

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The Indiana Court of Appeals discovered an inequity in the Grandparent Visitation Act due to the lack of biological relationships between the parties in an adoption petition.

In the case, In Re: Adoption of L.D.; A.B. and N.E. v. Jo.D and Ja.D., No. 49A02-0907-CV-671, the appellate judges noted a potential and presumably unintended bias in Indiana Code Section 31-17-5-9, the Grandparent Visitation Act. Paternal grandparents Jo.D. and Ja.D. filed for adoption of their adopted son's child, L.D. Mother A.B.'s co-worker, N.E., cared for the boy while she was incarcerated; N.E. later adopted A.B.

A.B. and N.E. opposed L.D's adoption; the trial court granted some visitation to N.E. before the adoption was finalized. Once the adoption petition was granted, the paternal grandparents told N.E. they planned to phase out visitation with her.

The mother and N.E. appealed several issues, including N.E.'s rights to visitation as a grandparent. But based on the language of the act, her visitation can't continue now that the child has been adopted, the Court of Appeals concluded. The act provides that visitation rights survive adoption by a stepparent or person who is biologically related to the child. Since the paternal grandparents aren't biologically related to L.D., N.E. isn't entitled to visitations as a matter of law under the act, wrote Judge Edward Najam.

In addition, if N.E. had been the one to adopt the boy, then the paternal grandparents wouldn't have had any rights under the act because N.E. isn't biologically related to the boy.

"Whether this consequence was intended or should be rectified we leave for the Legislature to decide," wrote the judge.

The judges affirmed the trial court's order denying the motion to set aside the petition decree. The mother failed to show that the service of process by publication in a newspaper she was unlikely to read was inadequate. N.E. didn't show that the adoption statute's failure to require that she, as a grandparent, receive notice of the adoption proceeding violates her due process rights in that a grandparent does not have a liberty interest in visitation with grandchildren.

The appellate court also dismissed mother's argument that the paternal grandparents should have gotten her consent for the adoption because it wasn't properly before the court.

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