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.




Court of Appeals of Indiana | Memorandum Decision 19A-AD-171 | June 27, 2019                   Page 1 of 5
                                             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

      Court of Appeals of Indiana | Memorandum Decision 19A-AD-171 | June 27, 2019   Page 2 of 5
      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:

      Court of Appeals of Indiana | Memorandum Decision 19A-AD-171 | June 27, 2019   Page 3 of 5
              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


      Court of Appeals of Indiana | Memorandum Decision 19A-AD-171 | June 27, 2019           Page 4 of 5
      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.




      Court of Appeals of Indiana | Memorandum Decision 19A-AD-171 | June 27, 2019   Page 5 of 5
