MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Sep 05 2019, 9:57 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Mark K. Phillips Curtis T. Hill, Jr. Boonville, Indiana Attorney General of Indiana Caryn N. Szyper Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
X.H., September 5, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-JV-335 v. Appeal from the Warrick Circuit Court State of Indiana, The Honorable Greg Granger Appellee-Plaintiff. Trial Court Cause No. 87C01-1706-JD-124
Tavitas, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-JV-335 | September 5, 2019 Page 1 of 7 Case Summary
[1] X.H. appeals the denial of his motion to dismiss the allegation that he is a
delinquent for an act that would be considered child molesting if committed by
an adult, a Level 4 felony, due to several alleged procedural errors. We dismiss.
Issue
[2] X.H. raises one issue on appeal; however, we raise, sua sponte, a separate issue
that we find to be dispositive. The issue before us is whether this Court has
jurisdiction over X.H.’s appeal.
Facts
[3] X.H. was born in September 2000. On July 30, 2016, the State alleged that
X.H. “did perform or submit to fondling or touching” seven-year-old K.K.
Appellant’s App. Vol. II p. 17.
[4] The petition alleging delinquency was filed May 11, 2017. On July 5, 2017, the
juvenile court authorized the filing of the delinquency petition. The order
indicates that the juvenile court “considered the preliminary inquiry and the
evidence of probable cause.” Appellant’s App. Vol. II p. 18.
[5] The trial court held the fact finding hearing on December 12, 2018. At the
hearing, X.H. orally requested the petition to be dismissed and orally moved for
certification of an interlocutory order, both of which the juvenile court denied.
[6] X.H. argued the juvenile court failed to commence the fact finding hearing prior
to X.H. turning eighteen, which X.H. alleges is required by Indiana Code
Court of Appeals of Indiana | Memorandum Decision 19A-JV-335 | September 5, 2019 Page 2 of 7 Section 31-9-2-13, and no waiver was filed before X.H.’s eighteenth birthday,
which X.H. contends was required. Accordingly, X.H. moved for dismissal
based upon lack of jurisdiction. The State countered that the case was filed
before X.H. turned eighteen and, therefore, the juvenile court retained
jurisdiction. The juvenile court disagreed with X.H.’s counsel’s interpretation
of the law.
[7] At the dispositional hearing on January 29, 2019, X.H.’s counsel continued to
contest jurisdiction of the juvenile court. Additionally, the parties argued over
whether an evaluation of X.H. would be necessary. After much debate, X.H.’s
counsel requested the matter be stayed so X.H. could file his notice of appeal.
The following discussion occurred:
COURT: Okay, well the Court’s finding is that he is – that I’m Ordering that he receive a Diagnostic Evaluation.
[X.H.’S COUNSEL]: * * * * * [We are] asking the Court to stay the sentence that’s now been imposed pending the Appeal, timely filing the Appeal and perfecting the Appeal. Obviously if we don’t perfect the Appeal then there’s nothing to stay.
*****
COURT: Okay, with that understanding then I’d be inclined to – to stay the evaluation.
[X.H.’S COUNSEL]: What I will do then, because we don’t as I explained to these people, the Notice of Appeal goes to the Court of Appeals, they (indiscernible) which I think is a little bit weird but that’s the way it is. What I think I will do is I will file the Court of Appeals of Indiana | Memorandum Decision 19A-JV-335 | September 5, 2019 Page 3 of 7 Motion to Stay before we file the Notice of Appeal today so that you – because I think once we file the Notice of Appeal you don’t have jurisdiction as an operation of law I think you lose jurisdiction.
Tr. Vol. II pp. 104-05. The juvenile court then advised X.H.’s parents of their
right to appeal. The juvenile court entered an order titled “dispositional order,”
which concluded:
The court now finds as follows:
That the juvenile shall participate in a diagnostic evaluation to determine his treatment needs, if any. The Court stays this order pending the results of an appeal of this order.
Appellant’s App. Vol. II p. 12. Appellant now appeals.
Analysis
[8] X.H. argues that the juvenile court erred in denying X.H.’s motion to dismiss.
Instead, however, we raise, sua sponte, whether this appeal is properly before
us. Upon review of the record, X.H. indicated on the notice of appeal that this
appeal is from a final judgment; however, there has not yet been a final
dispositional decree that disposes of all issues in this case. Furthermore, the
proper steps for filing an interlocutory appeal were not followed. Accordingly,
this Court does not have jurisdiction over this case in its current procedural
posture.
Court of Appeals of Indiana | Memorandum Decision 19A-JV-335 | September 5, 2019 Page 4 of 7 [9] In juvenile delinquency cases, “appeals may be taken as provided by law.” Ind.
Code § 31-32-15-1. Moreover, in juvenile hearings, “[i]t is after disposition that
a final, appealable judgment exists. . . .” Matter of M.R., 452 N.E.2d 1085, 1089
(Ind. Ct. App. 1983). “A final appealable order or judgment is one which
disposes of all of the issues as to all of the parties and puts an end to the
particular case.” F.E.H., Jr. v. State, 715 N.E.2d 1272, 1275 (Ind. Ct. App.
1999) (quotations omitted). “An order of the court requiring something to be
done or observed, but not determining the controversy, is an interlocutory
order.” M.R., 452 N.E.2d at 1088. “Whether an order is a final judgment
governs the appellate court’s subject matter jurisdiction.” Indy Auto Man, LLC v.
Keown & Kratz, LLC, 84 N.E.3d 718, 719 (Ind. Ct. App. 2017).
[10] Indiana Rule of Appellate Procedure 2(H) defines judgments as final if:
(1) it disposes of all claims as to all parties;
(2) the trial court in writing expressly determines under Trial Rule 54(B) or Trial Rule 56(C) that there is no just reason for delay and in writing expressly directs the entry of judgment (i) under Trial Rule 54(B) as to fewer than all the claims or parties, or (ii) under Trial Rule 56(C) as to fewer than all the issues, claims or parties;
(3) it is deemed final under Trial Rule 60(C);
(4) it is a ruling on either a mandatory or permissive Motion to Correct Error which was timely filed under Trial Rule 59 or Criminal Rule 16; or
Court of Appeals of Indiana | Memorandum Decision 19A-JV-335 | September 5, 2019 Page 5 of 7 (5) it is otherwise deemed final by law.
[11] The juvenile court’s order titled “dispositional order” stays the evaluation of
X.H. and the apparent subsequent treatment plan for X.H. pending the
evaluation. The order, however, is not a final dispositional decree.
Specifically, the juvenile court’s order before us does not include “written
findings and conclusions” in the dispositional decree as required by Indiana
Code Section 31-37-18-9.
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Sep 05 2019, 9:57 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Mark K. Phillips Curtis T. Hill, Jr. Boonville, Indiana Attorney General of Indiana Caryn N. Szyper Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
X.H., September 5, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-JV-335 v. Appeal from the Warrick Circuit Court State of Indiana, The Honorable Greg Granger Appellee-Plaintiff. Trial Court Cause No. 87C01-1706-JD-124
Tavitas, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-JV-335 | September 5, 2019 Page 1 of 7 Case Summary
[1] X.H. appeals the denial of his motion to dismiss the allegation that he is a
delinquent for an act that would be considered child molesting if committed by
an adult, a Level 4 felony, due to several alleged procedural errors. We dismiss.
Issue
[2] X.H. raises one issue on appeal; however, we raise, sua sponte, a separate issue
that we find to be dispositive. The issue before us is whether this Court has
jurisdiction over X.H.’s appeal.
Facts
[3] X.H. was born in September 2000. On July 30, 2016, the State alleged that
X.H. “did perform or submit to fondling or touching” seven-year-old K.K.
Appellant’s App. Vol. II p. 17.
[4] The petition alleging delinquency was filed May 11, 2017. On July 5, 2017, the
juvenile court authorized the filing of the delinquency petition. The order
indicates that the juvenile court “considered the preliminary inquiry and the
evidence of probable cause.” Appellant’s App. Vol. II p. 18.
[5] The trial court held the fact finding hearing on December 12, 2018. At the
hearing, X.H. orally requested the petition to be dismissed and orally moved for
certification of an interlocutory order, both of which the juvenile court denied.
[6] X.H. argued the juvenile court failed to commence the fact finding hearing prior
to X.H. turning eighteen, which X.H. alleges is required by Indiana Code
Court of Appeals of Indiana | Memorandum Decision 19A-JV-335 | September 5, 2019 Page 2 of 7 Section 31-9-2-13, and no waiver was filed before X.H.’s eighteenth birthday,
which X.H. contends was required. Accordingly, X.H. moved for dismissal
based upon lack of jurisdiction. The State countered that the case was filed
before X.H. turned eighteen and, therefore, the juvenile court retained
jurisdiction. The juvenile court disagreed with X.H.’s counsel’s interpretation
of the law.
[7] At the dispositional hearing on January 29, 2019, X.H.’s counsel continued to
contest jurisdiction of the juvenile court. Additionally, the parties argued over
whether an evaluation of X.H. would be necessary. After much debate, X.H.’s
counsel requested the matter be stayed so X.H. could file his notice of appeal.
The following discussion occurred:
COURT: Okay, well the Court’s finding is that he is – that I’m Ordering that he receive a Diagnostic Evaluation.
[X.H.’S COUNSEL]: * * * * * [We are] asking the Court to stay the sentence that’s now been imposed pending the Appeal, timely filing the Appeal and perfecting the Appeal. Obviously if we don’t perfect the Appeal then there’s nothing to stay.
*****
COURT: Okay, with that understanding then I’d be inclined to – to stay the evaluation.
[X.H.’S COUNSEL]: What I will do then, because we don’t as I explained to these people, the Notice of Appeal goes to the Court of Appeals, they (indiscernible) which I think is a little bit weird but that’s the way it is. What I think I will do is I will file the Court of Appeals of Indiana | Memorandum Decision 19A-JV-335 | September 5, 2019 Page 3 of 7 Motion to Stay before we file the Notice of Appeal today so that you – because I think once we file the Notice of Appeal you don’t have jurisdiction as an operation of law I think you lose jurisdiction.
Tr. Vol. II pp. 104-05. The juvenile court then advised X.H.’s parents of their
right to appeal. The juvenile court entered an order titled “dispositional order,”
which concluded:
The court now finds as follows:
That the juvenile shall participate in a diagnostic evaluation to determine his treatment needs, if any. The Court stays this order pending the results of an appeal of this order.
Appellant’s App. Vol. II p. 12. Appellant now appeals.
Analysis
[8] X.H. argues that the juvenile court erred in denying X.H.’s motion to dismiss.
Instead, however, we raise, sua sponte, whether this appeal is properly before
us. Upon review of the record, X.H. indicated on the notice of appeal that this
appeal is from a final judgment; however, there has not yet been a final
dispositional decree that disposes of all issues in this case. Furthermore, the
proper steps for filing an interlocutory appeal were not followed. Accordingly,
this Court does not have jurisdiction over this case in its current procedural
posture.
Court of Appeals of Indiana | Memorandum Decision 19A-JV-335 | September 5, 2019 Page 4 of 7 [9] In juvenile delinquency cases, “appeals may be taken as provided by law.” Ind.
Code § 31-32-15-1. Moreover, in juvenile hearings, “[i]t is after disposition that
a final, appealable judgment exists. . . .” Matter of M.R., 452 N.E.2d 1085, 1089
(Ind. Ct. App. 1983). “A final appealable order or judgment is one which
disposes of all of the issues as to all of the parties and puts an end to the
particular case.” F.E.H., Jr. v. State, 715 N.E.2d 1272, 1275 (Ind. Ct. App.
1999) (quotations omitted). “An order of the court requiring something to be
done or observed, but not determining the controversy, is an interlocutory
order.” M.R., 452 N.E.2d at 1088. “Whether an order is a final judgment
governs the appellate court’s subject matter jurisdiction.” Indy Auto Man, LLC v.
Keown & Kratz, LLC, 84 N.E.3d 718, 719 (Ind. Ct. App. 2017).
[10] Indiana Rule of Appellate Procedure 2(H) defines judgments as final if:
(1) it disposes of all claims as to all parties;
(2) the trial court in writing expressly determines under Trial Rule 54(B) or Trial Rule 56(C) that there is no just reason for delay and in writing expressly directs the entry of judgment (i) under Trial Rule 54(B) as to fewer than all the claims or parties, or (ii) under Trial Rule 56(C) as to fewer than all the issues, claims or parties;
(3) it is deemed final under Trial Rule 60(C);
(4) it is a ruling on either a mandatory or permissive Motion to Correct Error which was timely filed under Trial Rule 59 or Criminal Rule 16; or
Court of Appeals of Indiana | Memorandum Decision 19A-JV-335 | September 5, 2019 Page 5 of 7 (5) it is otherwise deemed final by law.
[11] The juvenile court’s order titled “dispositional order” stays the evaluation of
X.H. and the apparent subsequent treatment plan for X.H. pending the
evaluation. The order, however, is not a final dispositional decree.
Specifically, the juvenile court’s order before us does not include “written
findings and conclusions” in the dispositional decree as required by Indiana
Code Section 31-37-18-9. The juvenile court’s order states: “That the juvenile
shall participate in a diagnostic evaluation to determine his treatment needs, if
any. The Court stays this order pending the results of an appeal of this order.”
Appellant’s App. Vol. II p. 12 (emphasis added).
[12] The juvenile court clearly was expecting X.H. to file an interlocutory appeal.
X.H., however, failed to file a motion for interlocutory appeal as required by
Indiana Rules of Appellate Procedure Rule 14(B), which states: “An appeal
may be taken from other interlocutory orders if the trial court certifies its order
and the Court of Appeals accepts jurisdiction over the appeal.” We decline to
accept this appeal as an interlocutory appeal due to X.H.’s counsel’s failure to
proceed as required by Rule 14(B).
[13] We acknowledge that juvenile matters should not be drawn out; however,
under these circumstances, we cannot properly consider the appeal as it is
Court of Appeals of Indiana | Memorandum Decision 19A-JV-335 | September 5, 2019 Page 6 of 7 before us because it is not yet ripe for our review as a final judgment. We,
accordingly, dismiss. 1
Conclusion
[14] We do not have jurisdiction over X.H.’s appeal because a final dispositional
decree has not been entered. We dismiss.
[15] Dismissed.
Brown, J., and Altice, J., concur.
1 Although we dismiss this appeal, we note that X.H.’s brief included reference and argument to K.S. v. State, 807 N.E.2d 769 (Ind. Ct. App. 2004). In fact, X.H. heavily relies on this case in both his initial brief and reply brief. We remind counsel that K.S. was vacated and overturned in our Supreme Court’s landmark case K.S. v. State, 849 N.E.2d 538 (Ind. 2006). There, our Supreme Court expressly rejected the jurisdictional analysis and concluded that the juvenile’s arguments were procedural, and not jurisdictional. We encourage counsel, in the future, to carefully vet cited sources.
Court of Appeals of Indiana | Memorandum Decision 19A-JV-335 | September 5, 2019 Page 7 of 7