MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                   FILED
this Memorandum Decision shall not be
                                                                    May 29 2019, 9:25 am
regarded as precedent or cited before any
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
Kristina L. Lynn                                        Justin R. Wall
Lynn and Stein, P.C.                                    Wall Legal Services
Wabash, Indiana                                         Huntington, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

In re the Adoption of D.J.B.,                           May 29, 2019
B.B. and B.M.B. (Minor                                  Court of Appeals Case No.
Children)                                               19A-AD-120
                                                        Appeal from the Huntington
                                                        Circuit Court
D.B. (Father),
                                                        The Honorable Jeffrey R.
Appellant-Respondent,                                   Heffelfinger, Judge Pro Tem

        v.                                              Trial Court Cause Nos.
                                                        35C01-1811-AD-28, -30, -31

D.T. (Stepfather) and E.T.
(Mother),
Appellees-Petitioners




Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-AD-120 | May 29, 2019                  Page 1 of 5
[1]   In 2013, D.T. (“Stepfather”) married E.T. (“Mother”) (collectively

      “Appellees”). Since then, Appellees have lived with Mother’s three minor

      children, D.J.B., B.B., and B.M.B. (collectively “the Children”). In 2018,

      Appellees filed petitions for Stepfather to adopt the Children. The Children’s

      father, D.B. (“Father”), contested the adoption petitions. Following a hearing,

      in December 2018, the trial court issued an order concluding that Father’s

      consent to adoption was not required pursuant to Indiana Code Section 31-19-

      9-8(a)(1) and -(a)(2) and set a final hearing date on the adoption petitions.

      Father appeals the court’s determination that his consent to the adoption is not

      required. Appellees challenge this Court’s jurisdiction to hear the appeal.

      Concluding that the order from which Father appeals is neither a final

      judgment nor an appealable interlocutory order, we dismiss.


[2]   Appellees maintain that this Court lacks subject matter jurisdiction over this

      appeal. A challenge to appellate subject matter jurisdiction may be raised at

      any time by either party or sua sponte. In re Adoption of S.J., 967 N.E.2d 1063,

      1065 (Ind. Ct. App. 2012). Indiana Appellate Rule 5(A) gives this Court

      jurisdiction in all appeals from final judgments. 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

      Court of Appeals of Indiana | Memorandum Decision 19A-AD-120 | May 29, 2019    Page 2 of 5
              to all parties or put an end to the case because the relief requested
              in the adoption petition, i.e. the adoption of [the Children], 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.


[3]   Father asserts that the trial court specifically gave him the right to appeal by

      including the following language in its order: “Respondent has been notified in

      open court that he has the right to appeal this Order and that he must file his

      Notice of Appeal with[in] thirty (30) days of today’s date.” Appealed Order at

      1. 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:


              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.




      Court of Appeals of Indiana | Memorandum Decision 19A-AD-120 | May 29, 2019            Page 3 of 5
      (Emphasis added.) Father is correct that 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.


[4]   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

      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.




      Court of Appeals of Indiana | Memorandum Decision 19A-AD-120 | May 29, 2019   Page 4 of 5
[5]   The trial court’s order is neither final nor properly appealable as an

      interlocutory order. As such, we dismiss Father’s appeal.1


[6]   Dismissed.


      Bradford, J., and Tavitas, J., concur.




      1
       Appellees argue that they are entitled to appellate attorney’s fees pursuant to Indiana Appellate Rule 66(E),
      which gives us discretion to award attorney’s fees when an appeal is frivolous or in bad faith. We reject
      Appellees’ argument and deny their request for attorney’s fees.

      Court of Appeals of Indiana | Memorandum Decision 19A-AD-120 | May 29, 2019                        Page 5 of 5
