In the Matter of the Adoption of O.R.: N.R. v. K.G. and C.G. ( 2014 )

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 Feb 28 2014, 10:08 am
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEES:
LEANNA WEISSMANN JAMIE H. HARVEY
Lawrenceburg, Indiana Smith Harvey Law Office
Connersville, Indiana
IN THE
COURT OF APPEALS OF INDIANA
IN THE MATTER OF THE ADOPTION OF O.R.: )
)
N.R., )
)
Appellant, )
)
vs. ) No. 21A01-1307-AD-322
)
K.G. and C.G., )
)
Appellees. )
APPEAL FROM THE FAYETTE CIRCUIT COURT
The Honorable Eugene A. Stewart, Special Judge
Cause No. 21C01-1207-AD-196
February 28, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
FRIEDLANDER, Judge
N.R. appeals from the trial court’s order granting the petition of C.G. and K.G.
(collectively, Adoptive Parents) to adopt O.R., N.R.’s biological daughter. Concluding that
we lack subject matter jurisdiction due to N.R.’s failure to file a timely notice of appeal, we
dismiss.
O.R. was born in August 2006 and placed in foster care with Adoptive Parents by the
Department of Child Services when she was just four months old. Thereafter, with the
exception of approximately one year during which O.R. resided with her biological mother,
O.R. has continuously lived with Adoptive Parents. Adoptive Parents were awarded
temporary guardianship over O.R. in 2008 and a permanent guardianship was established in
2009. In July 17, 2012, Adoptive Parents filed a petition to adopt O.R., who was by that time
six years old. O.R.’s biological mother consented to the adoption, but N.R., who was
incarcerated at the time, objected. A hearing was held on March 27, 2013, at which Adoptive
Parents and N.R. appeared with counsel. On May 9, 2013, the trial court issued an adoption
decree, in which it concluded that N.R.’s consent to the adoption was not required due to his
failure to communicate with and provide support for O.R.
On June 6, 2013, N.R. wrote a letter to the trial court requesting the appointment of
appellate counsel. On June 19, 2013, N.R.’s trial counsel filed a motion to withdraw, which
was granted on July 1, 2013. The trial court entered an order appointing appellate counsel
for N.R. on July 3, 2013. Nineteen days later, on July 22, 2013, N.R. filed a Verified Petition
to Accept Tendered Amended Notice of Appeal in this court. In the petition, N.R. argued
that his pro se letter to the trial court should be deemed a timely notice of appeal because it
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substantially complied with the Appellate Rule governing the content of a notice of appeal,
and the attached “amended” notice of appeal cured all of the pro se letter’s deficiencies. On
August 16, 2013, the motions panel of this court issued an order granting N.R.’s Petition to
Accept Tendered Amended Notice of Appeal, and this appeal ensued.
At the outset, we note that N.R. acknowledged the timeliness issue presented in this
case by filing his Verified Petition to Accept Tendered Amended Notice of Appeal, which
the motions panel granted. While we are reluctant to reverse a ruling of the motions panel,
we have the inherent authority to reconsider any such decision while the appeal remains in
fieri. Miller v. Hague Ins. Agency, Inc., 871 N.E.2d 406 (Ind. Ct. App. 2007).
We also note that neither party questions the timeliness of N.R.’s notice of appeal in
their appellate briefs. Nevertheless, the timely filing of a notice of appeal is a jurisdictional
prerequisite that this court may address sua sponte even where the parties do not raise the
issue. Tarrance v. State, 947 N.E.2d 494 (Ind. Ct. App. 2011). Indeed, this court lacks
subject matter jurisdiction over appeals that are not timely initiated, and subject matter
jurisdiction cannot be waived. Id.; Marlett v. State, 878 N.E.2d 860, 864 (Ind. Ct. App.
2007), trans. denied; see also Jernigan v. State, 894 N.E.2d 1044, 1047 (Ind. Ct. App. 2008)
(noting that “courts at all levels are required to consider the issue [of subject matter
jurisdiction] sua sponte”).
Indiana Appellate Rule 9(A)(1) provides that “[a] party initiates an appeal by filing a
Notice of Appeal . . . within thirty (30) days after the entry of a Final Judgment is noted in the
Chronological Case Summary.” Failure to timely file a notice of appeal results in forfeiture
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of the right to appeal. Ind. App. R. 9(A)(5); Sewell v. State, 939 N.E.2d 686 (Ind. Ct. App.
2010).
In this case, N.R.’s pro se letter to the trial court requesting the appointment of
appellate counsel was filed within the thirty-day time limit prescribed by App. R. 9.1 N.R.’s
Amended Notice of Appeal, however, was not filed until July 22, 2013, or seventy-four days
after the entry of final judgment. We were faced with a very similar situation in Tarrance v.
State, 947 N.E.2d 494. In that case, Tarrance wrote a pro se letter to the trial court indicating
that he wished to appeal his sentence and requesting the appointment of appellate counsel.
Although the letter was filed within the thirty-day time frame set forth in App. R. 9, appellate
counsel was not appointed until after the expiration of the thirty-day period in which to file a
notice of appeal. Thirty-six days after the entry of final judgment, Tarrance’s appointed
counsel filed an Amended Notice of Appeal. This court held that Tarrance’s pro se letter was
not a proper notice of appeal because it did not conform to the content requirements for a
notice of appeal, and that the subsequently filed Amended Notice of Appeal was untimely.
Id. (citing Sewell v. State, 939 N.E.2d 686 (Ind. Ct. App. 2010) (holding that pro se letter to
the trial court requesting an appeal and the appointment of appellate counsel was not a notice
of appeal because of multiple substantive deficiencies)).
Here, like in Tarrance, N.R.’s letter did not satisfy the content requirements for a
notice of appeal. We note that the applicable requirements for a notice of appeal have
1
N.R.’s appointed trial counsel did not file his motion to withdraw until June 19, 2013, and the motion was
granted on July 1, 2013. Thus, it appears that N.R. was still represented by his appointed trial counsel at the
time he filed the letter and throughout the entirety of the thirty-day time period for filing a notice of appeal.
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changed significantly since this court’s decisions in Tarrance and Sewell. Prior to a 2011
amendment, App. R. 9(F) required only that the notice of appeal designate the appealed
judgment or order and specify whether it was a final judgment or interlocutory order,
designate the court to which the appeal is taken, direct the trial court clerk to assemble the
Clerk’s Record, and include a request for a transcript, if needed. The current App. R. 9(F)
includes a number of additional requirements. Among other things, a notice of appeal must
now name all of the parties and the trial judge, include an attached copy of the judgment or
order being appealed, contain a signature by the attorney or pro se party as well as a number
of certifications, and include a certificate of filing and service indicating that the notice of
appeal has been filed and served upon a number of parties. Under either version of the rule,
N.R.’s letter fell far short of what is required for a notice of appeal.2 See Sewell v. State, 939
N.E.2d 686. Moreover, it is apparent that the letter was not intended to be a notice of appeal.
The letter did not purport to be a notice of appeal, and N.R. did nothing more than request
the appointment of counsel. For all of these reasons, we cannot conclude that N.R.’s
unsigned letter to the trial court qualifies as a notice of appeal, and N.R. cannot retroactively
convert the letter into a notice of appeal, and thereby circumvent the thirty-day time limit
imposed by App. R. 9(A)(1), by filing a purportedly “amended” notice of appeal seventy-four
days after the entry of final judgment. See Tarrance v. State, 947 N.E.2d 494. Because N.R.
2
We also note that the letter was filed with the trial court clerk. Prior to the 2011 amendment, notices of
appeal were filed with the trial court clerk. Pursuant to the amendment, notices of appeal are now required to
be filed with the Clerk of the Indiana Supreme Court, Court of Appeals, and Tax Court. The amended rule,
however, provides for a grace period, effective until January 1, 2014, during which a notice of appeal timely
filed with the trial court clerk is deemed timely. N.R.’s pro se letter was filed during this grace period;
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did not timely file a notice of appeal, this court lacks subject matter jurisdiction to consider
his appeal.
Dismissed.
KIRSCH, J., and BAILEY, J., concur.
accordingly, we do not rely on N.R.’s failure to file the letter with the appellate court clerk in concluding that
the letter was not a notice of appeal.
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