In re the VISITATION OF A.R., a Minor Child.
Tamara J. Sexton, Appellant-Petitioner,
v.
Carey Glen Rowe and Tina Marie Rowe, Appellees-Respondents.
Court of Appeals of Indiana.
*477 Donn H. Wray, Kathleen M. Burch, Attorneys for Appellant.
Miсhael P. Scopelitis, South Bend, Indiana, Attorney for Appellees.
OPINION
RATLIFF, Senior Judge
STATEMENT OF THE CASE
Petitioner-Appellant Tamara J. Sexton appeals the trial court's judgment in favor *478 of Respоndents-Appellees Carey Glen Rowe and Tina Marie Rowe (collectively, "the Rowes").
We affirm in part and reverse in part.
ISSUES
Sexton raises three issues for our review, which we consolidate and restate as:
I. Whether Ind.Code § 31-19-16-2 provides the exclusive means of asserting visitation rights by a biological parent who has consented to adoption.
II. Whether the trial court еrred in granting the Rowes' request for attorney fees pursuant to Ind.Code § 34-52-1-1.
FACTS AND PROCEDURAL HISTORY
Tamara and Carey were married in 1988, and their marriage was dissolved in 1996. Upon the dissolution of the marriage, Tamara was granted custody of A.R., the child of the marriage born in 1990. In January of 1998, however, A.R. went to live with Carey and his new wife, Tina. Carey was granted custody of A.R. on April 6, 1998. Tamara wаs given visitation rights by stipulation.
On April 13, Tamara's consent to the adoption of A.R. and Tina's petition for adoption were filed with the St. Joseph Probate Court. An adoption hеaring was subsequently held, and the adoption petition was granted on June 12, 1998.
During the period from April through December of 1998, Tamara visited with A.R. at least one time per month. Howеver, beginning in January of 1999, the Rowes refused to allow Tamara to have contact with A.R.
On April 29, 1999, Tamara filed a petition to establish visitation rights with A.R. In the hearing on the petition, thе parties presented argument on the applicable statutes but did not present evidence. Tamara argued that based on the fact that her parental rights were terminated by way of the adoption proceeding, she should be allowed to petition for visitation as a non-parent third party. The Rowes argued that the grant оf post-adoption visitation privilege is governed by Ind.Code § 31-19-16-1 and Ind.Code § 31-19-16-2 and that Tamara failed to comply with the procedural requirements of the latter statute. The trial court subsequently denied Tamara's petition and awarded attorney fees to the Rowes. Tamara now appeals.
DISCUSSION AND DECISION
STANDARD OF REVIEW
In this case, the propriety of the trial court's judgment turns on the interpretation of various statutes. The interpretation of statutes by a trial court is a question of law, and we will conduct a de novo review. Indiana State Department of Natural Resources v. Hensley,
I. APPLICATION OF THE STATUTES
The crux of the issue before us is whether Ind.Code § 31-19-16-2 provides the exclusive means for a birth parent to obtain post-adoption visitation privileges. Ind.Code § 31-19-16-1 provides that "[a]t the time an adoрtion decree is entered, the court entering the adoption decree may grant [post-adoption] contact privileges under section 2 of this chapter to a birth parent who has . . . consented to the adoption." Ind.Code § 31-19-16-2 provides that a trial court may grant post-adoption privileges if (1) the grant of post-adoрtion contact privileges is in the best interests of the child; (2) the child is at least two years of age and there is a significant emotional attachment between the child аnd the birth parent; (3) each adoptive parent consents to the granting of the post-adoption privileges; (4) the adoptive parents and the birth parents exеcute a post-adoption contact agreement and file the agreement with the trial court; (5) any licensed child-placing *479 agency sponsoring the adoрtion or other such entity, coupled with any special advocate or guardian ad litem appointed under Ind.Code § 31-32-3-1 et seq., recommends the post-adoptiоn contact agreement; (6) the adopted child, if over twelve years of age, gives consent to the post-adoption contact; and (7) the post-adoрtion contact agreement is approved by the court. In the present case, there is no dispute that the procedural requirements of Ind.Code § 31-19-16-2 have not been met.
The statutes at issue do not state explicitly that the procedures outlined therein are exclusive. To the extent that the statutes are rendered uncleаr or ambiguous by the absence of a clear statement of exclusivity, we will construe the provisions found therein. See Smith v. Medical Licensing Bd. of Indiana,
The right of adoption in Indiana was unknown to the common lаw; however, as early as 1855, the legislature provided for the statutory right. See In re Perry,
In 1997, the general rule of total divestiture, codified as Ind.Code § 31-3-1-9, and the exception thereto, codified as Ind.Code § 31-3-1-13, were repealed and recodified without substantive change as Ind.Code § 31-19-16-1 and Ind.Code § 31-19-16-2. See P.L. 1-1997. In the same public law, the legislature also repealed and recodified the statutes pertaining to visitation by grandparents. In so doing, the legislature created a new statute, Ind.Code § 31-17-5-9, which governed thе visitation rights of grandparents when the child is adopted by stepparents, siblings, aunts, uncles, nieces, and nephews.
The aforementioned history outlines the creation of а very specific and significant exception to the general rule of total divestiture of a birth parent's rights, while at the same time demonstrating that the post-adoption rights of birth parents differ significantly from those of other parties. It is this history which convinces us that the legislature intends Ind.Code § 31-19-16-2 to provide the exclusive means by which a birth parent mаy acquire post-adoption visitation rights. Furthermore, we do not believe that the legislature intended that a birth parent's failure to comply with Ind.Code § 31-19-16-2, resulting in the forfeiture of his or her newly-created right to post-adoption contact, should subsequently act as a means for that birth parent, under the guise of a non-parent third party, to circumvent the statute's requirements.
We hold as a matter of law that Tamara, having failed to comply with the procedure set forth in Ind.Code 31-19-16-2, cannot now remedy that failure by sеeking visitation as a non-parent third party. Accordingly, the trial court did not err in denying Tamara's petition or in denying her an evidentiary hearing on the issue of whether she met the factual prerequisites for visitation as a non-parent third party.
*480 II. ATTORNEY FEES
Tamara contends that the trial court erred in awarding attorney fees pursuant to Ind.Code § 34-52-1-1(b)(1), which authorizes the award of attorney fees if the court finds that a party brought an action that is "frivolous, unreasonable, or groundless." The trial court's decision is reviewed under an abusе of discretion standard. Garza v. Lorch,
In the present case, the issue regarding the exclusivity of Ind.Code § 31-19-16-1 and Ind.Code § 31-19-16-2 is one of first impression. We have determined that Tamara erred in questioning the statutes' exclusivity; howеver we do not believe that her claim was "frivolous, unreasonable, or groundless." Accordingly, we hold that the trial court erred in awarding attorney fees to the Rowes.
CONCLUSION
The trial court was correct in denying Tamara's petition for post-adoption visitation.[1] The trial court erred, however, in awarding attorney fees pursuant to Ind. Code § 34-52-1-1(b)(1).
Wе affirm in part and reverse in part. We remand with instructions that the trial court vacate its attorney fee award.
ROBB, J., and BAILEY, J., concur.
NOTES
Notes
[1] We note that in her reply brief, Tamara questions whether hеr consent to the adoption was voluntary. The issue of voluntariness is pertinent to the question of whether the adoption should be set aside. No motion to set aside the adoption has been filed, and we will consider neither the legal issue nor the factual issues pertinent thereto.