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Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

FILED
Jun 14 2012, 8:51 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEY FOR APPELLANT: R. LEE MONEY Greenwood, Indiana

ATTORNEY FOR APPELLEE: RUSSELL T. CLARKE, JR. Emswiller Williams Noland & Clarke, PC Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
IN RE: THE VISITATION OF M.L.B. K.J.R., Appellant-Respondent, vs. M.A.B., Appellee-Petitioner. ) ) ) ) ) ) ) ) ) ) )

No. 41A01-1107-MI-285

APPEAL FROM THE JOHNSON SUPERIOR COURT The Honorable Kevin M. Barton, Judge Cause No. 41D01-1007-MI-31

June 14, 2012 MEMORANDUM DECISION - NOT FOR PUBLICATION KIRSCH, Judge

K.J.R. ("Mother") appeals from the trial court's order granting M.A.B.'s ("Grandfather") petition for grandparent visitation rights as to M.L.B. ("the Child"). Mother presents the following restated issues for our review: I. Whether the trial court's order is clearly erroneous because the trial court failed to address the due process requirements of Troxel v. Granville, 530 U.S. 57 (2000) and the factors set forth in McCune v. Frey, 783 N.E.2d 752 (Ind. Ct. App. 2003) when entering the visitation order; Whether the trial court's order exceeds the limitations of the Indiana Grandparent Visitation Act ("the Act"); Whether the trial court abused its discretion by entering the order that is the subject of this appeal prior to the order pertaining to the adoption petition.

II.

III.

We affirm. FACTS AND PROCEDURAL HISTORY The Child was born out of wedlock on October 11, 2004 to Mother and M.D.B. ("Father"). Mother, Father, and the Child lived together in Father's home for the first three months after the Child's birth. When Mother and Father's relationship deteriorated, Mother and the Child moved out of Father's house and into the maternal grandfather's house. Mother began a relationship with P.R., and they married in 2006. After moving out of Father's house, Mother allowed Father regular and frequent visits with the Child, either every other weekend, or a couple of evenings during the week. The relationship between Mother and Father further deteriorated to the point that Mother obtained a restraining order against Father, which expired sometime in 2006. Mother and Father

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verbally agreed at that time that Father could exercise parenting time visitation with the Child every other weekend. Father exercised parenting time with the Child until a dispute arose on Mother's Day 2007, after which Mother requested that Father's visits be supervised by Grandfather. Father did not have a permanent place of residence and had made threats of harm against Mother, her unborn child, and himself. When Father refused to agree to supervised visitation, Mother suggested that Father petition the trial court for parenting time. In January 2008, Father petitioned the trial court to establish paternity. On April 28, 2008, the trial court entered a judgment of paternity and support, deferring a decision on the issue of visitation, but also providing that either party could petition the trial court for a decision on that issue. Although Father did not petition the trial court for an order of visitation, Mother allowed the Child to visit with Grandfather, as well as Father's extended family. The Child attended several of Father's family's functions in 2007, 2008, and 2009; however, after the Child's third birthday party in 2007, Father had virtually no interaction with the Child for the next three years. On April 19, 2010, P.R. filed a petition for adoption of the Child. Father filed a motion to contest the adoption. Grandfather's subsequent motion to intervene in the adoption was granted by the trial court. Grandfather later filed a verified petition to establish grandparent visitation rights and then moved to consolidate the adoption and visitation actions. The trial court denied the motion to consolidate the actions, but heard evidence pertinent to both actions, at the same hearing. The trial court ultimately awarded Grandfather visitation rights as to the Child pursuant to Indiana Code section 31-17-5-1 prior to entering

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an order granting the adoption petition. Visitation rights under that chapter, if granted prior to a child's adoption, survive the adoption. See Ind. Code

Download In Re: The Visitation of M.L.B.; K.J.R. v. M.A.B..pdf

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