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In re Adoption of O.R.

Court of Appeals of Indiana

February 28, 2014

IN THE MATTER OF THE ADOPTION OF O.R.
v.
K.G. and C.G., Appellees N.R., Appellant,

Editorial Note:

These opinions are not precedents and cannot be cited or relied upon unless used when establishing res judicata or collateral estoppel or in actions between the same party. Indiana Rules of Appellate Procedure 65(D).

APPEAL FROM THE FAYETTE CIRCUIT COURT. The Honorable Eugene A. Stewart, Special Judge. Cause No. 21C01-1207-AD-196.

ATTORNEY FOR APPELLANT: LEANNA WEISSMANN, Lawrenceburg, Indiana.

ATTORNEY FOR APPELLEES: JAMIE H. HARVEY, Smith Harvey Law Office, Connersville, Indiana.

FRIEDLANDER, Judge. KIRSCH, J., and BAILEY, J., concur.

OPINION

MEMORANDUM DECISION - NOT FOR PUBLICATION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 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 of the right to appeal. ...


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