In re the Adoption of L.J.M. (Minor Child) B.S. (Father) v. D.S.M. and C.S.M. (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: June 27, 2019
• Docket: 19A-AD-171
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jun 27 2019, 6:44 am

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 Nathan L. McElroy Lindsay H. Lepley Fort Wayne, Indiana Burt, Blee, Dixon, Sutton & Bloom, LLP Fort Wayne, Indiana

IN THE COURT OF APPEALS OF INDIANA

In re the Adoption of L.J.M. June 27, 2019 (Minor Child) Court of Appeals Case No. 19A-AD-171 Appeal from the Allen Superior B.S. (Father), Court Appellant-Respondent, The Honorable Sherry A. Hartzler, Judge Pro Tempore v. The Honorable Lori K. Morgan, Magistrate D.S.M. and C.S.M., Trial Court Cause No. Appellees-Petitioners 02D08-1707-AD-129

Crone, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-AD-171 | June 27, 2019 Page 1 of 5 Case Summary [1] B.S. (“Father”) appeals a trial court order denying his motion to contest the

adoption of his son, L.J.M., by the child’s maternal grandparents, D.S.M. and

C.S.M. (“Grandparents”). Claiming that his consent to adoption was legally

required, Father asks that we reverse the denial of his motion to contest and

dismiss Grandparents’ adoption petition. Concluding, sua sponte, that the

order from which Father appeals is neither a final judgment nor an appealable

interlocutory order, we dismiss his appeal as premature.

Facts and Procedural History [2] L.J.M. was born in May 2013, about six months after Father had petitioned to

dissolve his marriage to H.M. (“Mother”). Father’s paternity was established

through DNA testing. In 2014, Grandparents sought and were granted sole

legal and physical custody of L.J.M., and Father was granted supervised

parenting time and ordered to pay the costs associated with it. The trial court

ordered that Mother, Father, and Grandparents address the issue of child

support through mediation. In 2017, Grandparents filed a petition to adopt

L.J.M., and Mother executed her consent to adoption. Father filed a motion to

contest and dismiss the adoption. Following a hearing, in December 2018, the

trial court issued an order with findings of fact and conclusions thereon, finding

that Father’s consent to adoption was not required pursuant to Indiana Code

Section 31-19-9-8(a)(1) and -(2) and denying his motion to contest. The order

neither granted nor denied Grandparents’ adoption petition but was silent on

the finalization of the adoption. Father appeals the court’s determination that

Court of Appeals of Indiana | Memorandum Decision 19A-AD-171 | June 27, 2019 Page 2 of 5 his consent to the adoption is not required and asks that we reverse the denial of

his motion to contest and dismiss Grandparents’ adoption petition.

Discussion and Decision [3] The parties do not raise the issue of whether the trial court’s order is appealable.

Thus, we address it sua sponte. In re Adoption of S.J., 967 N.E.2d 1063, 1065

(Ind. Ct. App. 2012). Unless otherwise provided in our rules of appellate

procedure, this Court hears all appeals from final judgments. Ind. Appellate

Rule 5(A). 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 to all parties or put an end to the case because the relief requested in the adoption petition, i.e. the adoption of [L.J.M.], 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.

[4] 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:

Court of Appeals of Indiana | Memorandum Decision 19A-AD-171 | June 27, 2019 Page 3 of 5 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.

(Emphasis added.)

[5] 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.

[6] 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

Court of Appeals of Indiana | Memorandum Decision 19A-AD-171 | June 27, 2019 Page 4 of 5 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.

[7] The trial court’s order is neither final nor properly appealable as an

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

[8] Dismissed.

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

Court of Appeals of Indiana | Memorandum Decision 19A-AD-171 | June 27, 2019 Page 5 of 5