Denial of grandparental visitation reversed in ‘unusual circumstances’

Ruling in a case presenting “somewhat unusual circumstances,” the Indiana Court of Appeals reversed the denial of a petition for grandparent visitation, finding the trial court had erred in determining the visitation would not be in the granddaughter’s best interests. The appeals court remanded for proceedings to establish a grandparent visitation order in the case.

J.I. is an 18-month-old whose mother consented to her adoption by the child’s aunt, Jessica McVey, after the Department of Child Services determined the baby was a child in need of services due to mother’s drug abuse problems. Her whereabouts are unknown, and the child’s father is serving a child molesting sentence in the Department of Correction.

Jennifer and Azael Romero, the paternal grandmother and step-grandfather, petitioned for visitation and moved to intervene in the CHINS proceeding. DCS and the court appointed special advocate for J.I. objected, even though DCS had authorized grandparent contact throughout the proceedings.

Indeed, McVey “testified that she supports J.I.’s relationship with other members of the Romero family and would not attempt to ‘terminate any . . . family connections,’” Judge Robert Altice wrote for the panel in Jennifer Romero and Azael Romero v. Jessica McVey, et al., 20A-MI-1983.

“McVey also explained that J.I. ‘needs as many people as she potentially can have loving her and encouraging her.’ … Notwithstanding Grandparents’ concern, McVey characterized J.I.’s relationship with Grandparents as ‘healthy,’ and acknowledged that she planned to continue J.I.’s visits with Grandparents on a regular basis.”

The Tippecanoe Superior Court denied the visitation petition, finding among other things that the circumstances in this case were unusual, that decisions regarding visitation were best left to McVey and that she would restrict the grandparents’ contact with the child after her adoption, which is still pending.

The COA reversed, noting the predicament the grandparents face in this case, despite the good intentions of the parties involved.

“While McVey is J.I.’s caretaker, she is not her legal parent. And even assuming that relevant documents have been filed to begin the adoption process, McVey has no fundamental right with respect to J.I. at this time because no adoption has occurred,” Altice wrote. “Our statutes contemplate that it is the trial court’s duty to determine what is in the best interests of a child, as Grandparents are at risk of losing all rights and visitation with J.I. if the adoption occurs.

“… It was established that J.I., who is almost two years old, is forming bonds and relationships with the people who love her. Grandparents have had consistent and meaningful contact with J.I. to the extent that DCS and McVey have permitted, and it is apparent from this record that Grandparents are acting in J.I.’s best interests. As a result, the evidence presented at the hearing and the trial court’s findings do not support the determination that court-ordered visitation would not be in J.I.’s best interests,” the panel ruled.

“We therefore conclude that the denial of Grandparents’ petition for visitation was clearly erroneous. We reverse and remand with instructions that the trial court conduct further proceedings as necessary to determine the appropriate amount of Grandparent visitation and enter a decree establishing said visitation.”

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