In re the Adoption of D.J.B., B.B. and B.M.B. (Minor Children) D.B. (Father) v. D.T. (Stepfather) and E.T. (Mother) (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: May 29, 2019
• Docket: 19A-AD-120
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be May 29 2019, 9:25 am regarded as precedent or cited before any court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEES Kristina L. Lynn Justin R. Wall Lynn and Stein, P.C. Wall Legal Services Wabash, Indiana Huntington, Indiana

IN THE COURT OF APPEALS OF INDIANA

In re the Adoption of D.J.B., May 29, 2019 B.B. and B.M.B. (Minor Court of Appeals Case No. Children) 19A-AD-120 Appeal from the Huntington Circuit Court D.B. (Father), The Honorable Jeffrey R. Appellant-Respondent, Heffelfinger, Judge Pro Tem

v. Trial Court Cause Nos. 35C01-1811-AD-28, -30, -31

D.T. (Stepfather) and E.T. (Mother), Appellees-Petitioners

Crone, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-AD-120 | May 29, 2019 Page 1 of 5 [1] In 2013, D.T. (“Stepfather”) married E.T. (“Mother”) (collectively

“Appellees”). Since then, Appellees have lived with Mother’s three minor

children, D.J.B., B.B., and B.M.B. (collectively “the Children”). In 2018,

Appellees filed petitions for Stepfather to adopt the Children. The Children’s

father, D.B. (“Father”), contested the adoption petitions. Following a hearing,

in December 2018, the trial court issued an order concluding that Father’s

consent to adoption was not required pursuant to Indiana Code Section 31-19-

9-8(a)(1) and -(a)(2) and set a final hearing date on the adoption petitions.

Father appeals the court’s determination that his consent to the adoption is not

required. Appellees challenge this Court’s jurisdiction to hear the appeal.

Concluding that the order from which Father appeals is neither a final

judgment nor an appealable interlocutory order, we dismiss.

[2] Appellees maintain that this Court lacks subject matter jurisdiction over this

appeal. A challenge to appellate subject matter jurisdiction may be raised at

any time by either party or sua sponte. In re Adoption of S.J., 967 N.E.2d 1063,

1065 (Ind. Ct. App. 2012). Indiana Appellate Rule 5(A) gives this Court

jurisdiction in all appeals from final judgments. Appellate Rule 2(H)(1) defines

a final judgment as one that “disposes of all claims as to all parties[.]” Here, as

in S.J., the trial court specifically concluded that Father’s consent to the

adoption was not required but did not finalize the adoption. We conclude, as

did the S.J. court,

[that] the trial court’s … order concluding that Father’s consent to the adoption was not required did not dispose of all issues as

Court of Appeals of Indiana | Memorandum Decision 19A-AD-120 | May 29, 2019 Page 2 of 5 to all parties or put an end to the case because the relief requested in the adoption petition, i.e. the adoption of [the Children], was neither granted nor denied. Rather, the trial court ruled that, provided all other statutory requirements for the adoption were met, the petition could proceed to a final hearing. Accordingly, the trial court’s order concluding that Father’s consent to the adoption was not required is not a final judgment within the meaning of Appellate Rule 2(H)(1) because it left the question of whether the adoption petition would be granted for future determination.

967 N.E.2d at 1065.

[3] Father asserts that the trial court specifically gave him the right to appeal by

including the following language in its order: “Respondent has been notified in

open court that he has the right to appeal this Order and that he must file his

Notice of Appeal with[in] thirty (30) days of today’s date.” Appealed Order at

1. Trial Rule 54(B) provides an avenue for the trial court to enter a final

judgment on fewer than all claims and reads in relevant part:

the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.... A judgment as to one or more but fewer than all of the claims or parties is final when the court in writing expressly determines that there is no just reason for delay, and in writing expressly directs entry of judgment, and an appeal may be taken upon this or other issues resolved by the judgment; but in other cases a judgment, decision or order as to less than all the claims and parties is not final.

Court of Appeals of Indiana | Memorandum Decision 19A-AD-120 | May 29, 2019 Page 3 of 5 (Emphasis added.) Father is correct that the trial court may deem final and

appealable an otherwise nonfinal, non-appealable order by inserting certain

language into its order. However, that language must be the specific language

used in Trial Rule 54(B). S.J., 967 N.E.2d at 1065-66. See Martin v. Amoco Oil

Co., 696 N.E.2d 383, 385 (Ind. 1998) (adopting “bright line” rule requiring strict

compliance with Trial Rule 54(B) before order disposing of fewer than all

claims will be deemed final and appealable by right), cert. denied. In its written

order, the trial court neither specified that “there is no just reason for delay” nor

“expressly directed entry of judgment.” The trial court did not use the specific

language required by the rule and case law, and as such, the order is not a final,

appealable order.

[4] That said, Indiana Appellate Rule 14 provides yet another vehicle for obtaining

appellate subject matter jurisdiction, the interlocutory appeal. Subsection (A) of

the rule lists interlocutory orders that may be appealed as a matter of right, and

the trial court’s order is not one of those orders. As such, Father was limited to

seeking a discretionary interlocutory appeal pursuant to Appellate Rule 14(B).

Id. However, a discretionary interlocutory appeal requires certification of the

order by the trial court and acceptance of jurisdiction by this Court. Id. (citing

Ind. Appellate Rule 14(B)). Here, certification and acceptance did not occur.

As a result, the challenged order is not appealable pursuant to Indiana

Appellate Rule 14.

Court of Appeals of Indiana | Memorandum Decision 19A-AD-120 | May 29, 2019 Page 4 of 5 [5] The trial court’s order is neither final nor properly appealable as an

interlocutory order. As such, we dismiss Father’s appeal.1

[6] Dismissed.

Bradford, J., and Tavitas, J., concur.

1 Appellees argue that they are entitled to appellate attorney’s fees pursuant to Indiana Appellate Rule 66(E), which gives us discretion to award attorney’s fees when an appeal is frivolous or in bad faith. We reject Appellees’ argument and deny their request for attorney’s fees.

Court of Appeals of Indiana | Memorandum Decision 19A-AD-120 | May 29, 2019 Page 5 of 5