MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                     FILED
this Memorandum Decision shall not be                                 Sep 05 2019, 9:57 am
regarded as precedent or cited before any                                  CLERK
court except for the purpose of establishing                           Indiana Supreme Court
                                                                          Court of Appeals
the defense of res judicata, collateral                                     and Tax Court


estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Mark K. Phillips                                          Curtis T. Hill, Jr.
Boonville, Indiana                                        Attorney General of Indiana
                                                          Caryn N. Szyper
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

X.H.,                                                     September 5, 2019
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          19A-JV-335
        v.                                                Appeal from the Warrick Circuit
                                                          Court
State of Indiana,                                         The Honorable Greg Granger
Appellee-Plaintiff.                                       Trial Court Cause No.
                                                          87C01-1706-JD-124



Tavitas, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-JV-335 | September 5, 2019               Page 1 of 7
                                               Case Summary

[1]   X.H. appeals the denial of his motion to dismiss the allegation that he is a

      delinquent for an act that would be considered child molesting if committed by

      an adult, a Level 4 felony, due to several alleged procedural errors. We dismiss.


                                                      Issue

[2]   X.H. raises one issue on appeal; however, we raise, sua sponte, a separate issue

      that we find to be dispositive. The issue before us is whether this Court has

      jurisdiction over X.H.’s appeal.


                                                      Facts

[3]   X.H. was born in September 2000. On July 30, 2016, the State alleged that

      X.H. “did perform or submit to fondling or touching” seven-year-old K.K.

      Appellant’s App. Vol. II p. 17.


[4]   The petition alleging delinquency was filed May 11, 2017. On July 5, 2017, the

      juvenile court authorized the filing of the delinquency petition. The order

      indicates that the juvenile court “considered the preliminary inquiry and the

      evidence of probable cause.” Appellant’s App. Vol. II p. 18.


[5]   The trial court held the fact finding hearing on December 12, 2018. At the

      hearing, X.H. orally requested the petition to be dismissed and orally moved for

      certification of an interlocutory order, both of which the juvenile court denied.


[6]   X.H. argued the juvenile court failed to commence the fact finding hearing prior

      to X.H. turning eighteen, which X.H. alleges is required by Indiana Code

      Court of Appeals of Indiana | Memorandum Decision 19A-JV-335 | September 5, 2019   Page 2 of 7
      Section 31-9-2-13, and no waiver was filed before X.H.’s eighteenth birthday,

      which X.H. contends was required. Accordingly, X.H. moved for dismissal

      based upon lack of jurisdiction. The State countered that the case was filed

      before X.H. turned eighteen and, therefore, the juvenile court retained

      jurisdiction. The juvenile court disagreed with X.H.’s counsel’s interpretation

      of the law.


[7]   At the dispositional hearing on January 29, 2019, X.H.’s counsel continued to

      contest jurisdiction of the juvenile court. Additionally, the parties argued over

      whether an evaluation of X.H. would be necessary. After much debate, X.H.’s

      counsel requested the matter be stayed so X.H. could file his notice of appeal.

      The following discussion occurred:


              COURT: Okay, well the Court’s finding is that he is – that I’m
              Ordering that he receive a Diagnostic Evaluation.


              [X.H.’S COUNSEL]: * * * * * [We are] asking the Court to stay
              the sentence that’s now been imposed pending the Appeal, timely
              filing the Appeal and perfecting the Appeal. Obviously if we
              don’t perfect the Appeal then there’s nothing to stay.


                                                    *****


              COURT: Okay, with that understanding then I’d be inclined to –
              to stay the evaluation.


              [X.H.’S COUNSEL]: What I will do then, because we don’t as I
              explained to these people, the Notice of Appeal goes to the Court
              of Appeals, they (indiscernible) which I think is a little bit weird
              but that’s the way it is. What I think I will do is I will file the
      Court of Appeals of Indiana | Memorandum Decision 19A-JV-335 | September 5, 2019   Page 3 of 7
              Motion to Stay before we file the Notice of Appeal today so that
              you – because I think once we file the Notice of Appeal you don’t
              have jurisdiction as an operation of law I think you lose
              jurisdiction.


      Tr. Vol. II pp. 104-05. The juvenile court then advised X.H.’s parents of their

      right to appeal. The juvenile court entered an order titled “dispositional order,”

      which concluded:


              The court now finds as follows:


                       That the juvenile shall participate in a diagnostic
                       evaluation to determine his treatment needs, if any. The
                       Court stays this order pending the results of an appeal of
                       this order.


      Appellant’s App. Vol. II p. 12. Appellant now appeals.


                                                    Analysis

[8]   X.H. argues that the juvenile court erred in denying X.H.’s motion to dismiss.

      Instead, however, we raise, sua sponte, whether this appeal is properly before

      us. Upon review of the record, X.H. indicated on the notice of appeal that this

      appeal is from a final judgment; however, there has not yet been a final

      dispositional decree that disposes of all issues in this case. Furthermore, the

      proper steps for filing an interlocutory appeal were not followed. Accordingly,

      this Court does not have jurisdiction over this case in its current procedural

      posture.




      Court of Appeals of Indiana | Memorandum Decision 19A-JV-335 | September 5, 2019   Page 4 of 7
[9]    In juvenile delinquency cases, “appeals may be taken as provided by law.” Ind.

       Code § 31-32-15-1. Moreover, in juvenile hearings, “[i]t is after disposition that

       a final, appealable judgment exists. . . .” Matter of M.R., 452 N.E.2d 1085, 1089

       (Ind. Ct. App. 1983). “A final appealable order or judgment is one which

       disposes of all of the issues as to all of the parties and puts an end to the

       particular case.” F.E.H., Jr. v. State, 715 N.E.2d 1272, 1275 (Ind. Ct. App.

       1999) (quotations omitted). “An order of the court requiring something to be

       done or observed, but not determining the controversy, is an interlocutory

       order.” M.R., 452 N.E.2d at 1088. “Whether an order is a final judgment

       governs the appellate court’s subject matter jurisdiction.” Indy Auto Man, LLC v.

       Keown & Kratz, LLC, 84 N.E.3d 718, 719 (Ind. Ct. App. 2017).


[10]   Indiana Rule of Appellate Procedure 2(H) defines judgments as final if:


               (1) it disposes of all claims as to all parties;


               (2) the trial court in writing expressly determines under Trial
                   Rule 54(B) or Trial Rule 56(C) that there is no just reason for
                   delay and in writing expressly directs the entry of judgment (i)
                   under Trial Rule 54(B) as to fewer than all the claims or
                   parties, or (ii) under Trial Rule 56(C) as to fewer than all the
                   issues, claims or parties;


               (3) it is deemed final under Trial Rule 60(C);


               (4) it is a ruling on either a mandatory or permissive Motion to
                   Correct Error which was timely filed under Trial Rule 59 or
                   Criminal Rule 16; or



       Court of Appeals of Indiana | Memorandum Decision 19A-JV-335 | September 5, 2019   Page 5 of 7
               (5) it is otherwise deemed final by law.


[11]   The juvenile court’s order titled “dispositional order” stays the evaluation of

       X.H. and the apparent subsequent treatment plan for X.H. pending the

       evaluation. The order, however, is not a final dispositional decree.

       Specifically, the juvenile court’s order before us does not include “written

       findings and conclusions” in the dispositional decree as required by Indiana

       Code Section 31-37-18-9. The juvenile court’s order states: “That the juvenile

       shall participate in a diagnostic evaluation to determine his treatment needs, if

       any. The Court stays this order pending the results of an appeal of this order.”

       Appellant’s App. Vol. II p. 12 (emphasis added).


[12]   The juvenile court clearly was expecting X.H. to file an interlocutory appeal.

       X.H., however, failed to file a motion for interlocutory appeal as required by

       Indiana Rules of Appellate Procedure Rule 14(B), which states: “An appeal

       may be taken from other interlocutory orders if the trial court certifies its order

       and the Court of Appeals accepts jurisdiction over the appeal.” We decline to

       accept this appeal as an interlocutory appeal due to X.H.’s counsel’s failure to

       proceed as required by Rule 14(B).


[13]   We acknowledge that juvenile matters should not be drawn out; however,

       under these circumstances, we cannot properly consider the appeal as it is




       Court of Appeals of Indiana | Memorandum Decision 19A-JV-335 | September 5, 2019   Page 6 of 7
       before us because it is not yet ripe for our review as a final judgment. We,

       accordingly, dismiss. 1


                                                     Conclusion

[14]   We do not have jurisdiction over X.H.’s appeal because a final dispositional

       decree has not been entered. We dismiss.


[15]   Dismissed.


       Brown, J., and Altice, J., concur.




       1
         Although we dismiss this appeal, we note that X.H.’s brief included reference and argument to K.S. v. State,
       807 N.E.2d 769 (Ind. Ct. App. 2004). In fact, X.H. heavily relies on this case in both his initial brief and
       reply brief. We remind counsel that K.S. was vacated and overturned in our Supreme Court’s landmark case
       K.S. v. State, 849 N.E.2d 538 (Ind. 2006). There, our Supreme Court expressly rejected the jurisdictional
       analysis and concluded that the juvenile’s arguments were procedural, and not jurisdictional. We encourage
       counsel, in the future, to carefully vet cited sources.

       Court of Appeals of Indiana | Memorandum Decision 19A-JV-335 | September 5, 2019                   Page 7 of 7
