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

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.
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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
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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:
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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
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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.
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