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.) ( 2019 )

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.
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[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
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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.
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(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.
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[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.
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