Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re Adoption of O.R.

Supreme Court of Indiana

September 25, 2014

IN THE MATTER OF THE ADOPTION OF O.R., N.R., Appellant (Plaintiff below),
v.
K.G. AND C.G., Appellees (Defendants below)

Appeal from the Fayette Circuit Court, No. 21C01-1207-AD-196. The Honorable Eugene A. Stewart, Special Judge. On Petition To Transfer from the Indiana Court of Appeals, No. 21A01-1307-AD-322.

Page 966

ATTORNEY FOR APPELLANT: Leanna Weissmann, Lawrenceburg, Indiana.

ATTORNEY FOR APPELLEE: Jamie H. Harvey, Smith Harvey Law Office, Connersville, Indiana.

Rucker, Justice. Rush, C.J., and Dickson, David and Massa, JJ., concur.

OPINION

Page 967

Rucker, Justice.

The biological parent of a minor child attempted to appeal the trial court's order granting an adoption petition in favor of third parties. Because the Notice of Appeal was not timely filed, the Court of Appeals dismissed the case on grounds that it lacked jurisdiction to hear the appeal. Although we affirm the trial court's judgment, we conclude the untimely filing

Page 968

of a Notice of Appeal is not a jurisdictional bar precluding appellate review.

Facts

O.R. (" Child" ) was born out of wedlock in August 2006, and when Child was four months old she was placed in foster care with K.G. and C.G. (" Adoptive Parents" ). Child has lived with Adoptive Parents for most of her life, except for a period of about one year around 2007, when she lived with her biological parents. During that time Adoptive Parents exercised regular visitation with Child. At some point in 2008, Child's biological father N.R. (" Father" ) contacted Adoptive Parents and asked them to assume guardianship of Child. Father later changed his mind, but the trial court awarded Adoptive Parents temporary guardianship in 2008 and permanent guardianship in June 2009. Also in 2009, Father was serving a seven and a half year sentence in the Indiana Department of Correction for domestic battery and an adjudication as a habitual offender.[1] In July 2012, Adoptive Parents filed a petition to adopt Child, who by that time was six years old. Child's biological mother consented to the adoption, but Father refused to consent. After a hearing at which Adoptive Parents and Father appeared with counsel, the trial court entered an order on May 9, 2013 in favor of Adoptive Parents. Among other things the trial court concluded that Father's consent to adoption was not required because of Father's failure to communicate with and provide support for Child.

The deadline for filing a Notice of Appeal from the trial court's order was June 10, 2013. Asserting that he was acting on the advice of his trial counsel, Father wrote a letter to the trial court clerk which the clerk filed on June 6, 2013 requesting appointment of appellate counsel " for the purpose of appealing the decision rendered" by the trial court. Appellant's App. at 52. Father's trial counsel did not file a Notice of Appeal but on June 19, 2013, nine days after the Notice of Appeal was due, counsel filed a motion to withdraw. The trial court granted the motion on July 1 and on July 3--twenty-three days after the deadline to appeal had passed--entered an order appointing appellate counsel for Father. Fifteen days later, on July 18, Father's new counsel filed in the Court of Appeals a petition to accept " Amended Notice of Appeal," which was tendered with the petition. Counsel argued that Father's June 6 pro se letter to the trial court clerk should be deemed a timely filed Notice of Appeal in substantial compliance with the appellate rules. On August 16, the motions panel of the Court of Appeals granted Father's petition to accept his Amended Notice of Appeal.

After the issues were fully briefed on the merits, in a memorandum decision, the writing panel of the Court of Appeals sua sponte dismissed Father's appeal on grounds that it lacked subject matter jurisdiction because Father did not timely file a Notice of Appeal. See In re Adoption of O.R., 6 N.E.3d 506 (Ind.Ct.App. Feb. 28, 2014). We now grant Father's petition to transfer thereby vacating the Court of Appeals' dismissal of Father's appeal. In this opinion we explore the question of appellate jurisdiction to entertain this appeal, and address the merits of Father's claims. In doing so, we affirm the judgment of the trial court. Additional facts are provided below as necessary.

Discussion

I. Historical Overview

This Court promulgated the first Indiana Rules of Appellate Procedure in

Page 969

1970. See Judge Robert H. Staton & Gina M. Hicklin, The History of the Court of Appeals of Indiana, 30 Ind. L. Rev. 203, 216 (1997). The Rules provided in pertinent part, " [a]n appeal is initiated by filing with the clerk of the trial court a praecipe designating what is to be included in the record of the proceedings." App. R. 2(A) (1970). The Rules further provided: " Every appeal shall be deemed submitted and the appellate tribunal deemed to have acquired jurisdiction thereof on the date the record of the proceedings is filed with the clerk of the Supreme and Appellate Courts." App. R. 3(A) (1970). By 1999 the language of the Rules had been revised to provide that the praecipe " shall be filed within thirty (30) days after the entry of a final judgment . . . ." and " [u]nless the praecipe is filed within such time period, the right to appeal will be forfeited." App. R. 2(A) (1999) (emphasis added). In January 2001 an entirely new set of Rules of Appellate Procedure went into effect. Among them was Appellate Rule 9(A), which provided in relevant part, " [a] party initiates an appeal by filing a Notice of Appeal with the trial court clerk within thirty (30) days after the entry of a Final Judgment. . . . Unless the Notice of Appeal is timely filed, the right to appeal shall be forfeited except as provided by P.C.R. 2." (emphasis added). Becoming effective in 2012, the current Appellate Rule 9(A) is similarly worded:

A party initiates an appeal by filing a Notice of Appeal with the Clerk . . . within thirty (30) days after the entry of a Final Judgment is noted in the Chronological Case Summary. * * * Unless the Notice of Appeal is timely filed, the right ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.