In Re the Adoption of: S.A.C., Minor Child, M.M. v. Indiana Department of Child Services

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Mar 09 2020, 9:05 am

regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Nathan D. Hoggatt Curtis T. Hill, Jr. Fort Wayne, Indiana Attorney General of Indiana Robert J. Henke Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA In Re the Adoption of: S.A.C., March 9, 2020 Minor Child Court of Appeals Case No. 19A-AD-1923 M.M., Appeal from the Allen Superior Appellant, Court v. The Honorable Charles F. Pratt, Judge Indiana Department of Child Trial Court Cause No. Services, 02D08-1508-AD-101

Appellee. Brown, Judge. Court of Appeals of Indiana | Memorandum Decision 19A-AD-1923 | March 9, 2020 Page 1 of 7 [1] M.M. appeals the Allen Superior Court’s December 11, 2018 order. While he

presents several issues for review, we find one issue dispositive, which is

whether the trial court’s order is an appealable order. We dismiss.

Facts and Procedural History [2] On September 2, 2005, S.C. (“Child”) was born to L.B. and T.M. (“Mother”),

who married M.M. in July of the same year. 1 On August 17, 2015, M.M. filed

a petition for adoption of Child under cause number 02D08-1508-AD-101

(“Cause No. 101”). [3] In June 2016, the Department of Child Services (“DCS”) filed a petition for the

termination of parental rights of Mother and L.B. under cause numbers 02D08-

1510-JT-124 and -125, respectively. In September 2016, DCS filed a motion to

intervene as a party in M.M.’s adoption, which the court granted in January

2017. [4] On February 7, 2017, the court terminated the parental rights of Mother and

L.B. in an order stating in part:

THE COURT NOW FINDS AND CONCLUDES that:

*****

3. On November 18, 2014, this Court found probable cause to believe [Child] was a Child in Need of Services under Ind. Code

1 M.M. and Mother divorced in May 2016, remarried in October 2017, and divorced again in June 2018.

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31-34-1-1 [in cause number 02D08-1411-JC-551 (“Cause No. 551”)] . . . .

*****

5. On December 11, 2014, an Additional Initial Hearing was held in which the child was continued in licensed foster care and a Fact Finding Trial was set.

6. A Review hearing was held on February 12, 2015 and the Court ordered the child continued in licensed foster care.

7. On February 24, 2015, a second Additional Initial Hearing was held in which [Mother], [M.M.] and [L.B.] made admissions to establish a factual basis for the Court to adjudicate the child a Child in Need of Services under Ind. Code 31-34-1-1 [in Cause No. 551].

Exhibits Volume I at 105-106. The court further ordered Child be made a ward

of DCS “for all purposes including adoption” and that DCS provide the

necessary supervision and services to insure Child’s care and permanency under

Cause No. 551. Id. at 115. [5] In April 2017, Child’s foster parents, J.C. and P.C. (together, “Foster Parents”),

filed a petition for adoption under cause number 02D08-1704-AD-72 (“Cause

No. 72”), which they later amended. On June 12, 2017, the court issued an

order stating Cause Nos. 101 and 72 were consolidated. [6] On August 24, 2018, the court held a hearing to determine whether the consent

of DCS to M.M.’s petition for adoption was required. On September 20, 2018,

M.M. filed a motion to supplement the record with newly discovered evidence.

The court held a hearing on the motion before issuing on December 11, 2018,

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its “Findings and Order Re: Motion to Supplement the Record and Findings

and Order Regarding the Requirement of Consent By the Department of Child

Services.” The court denied the motion to supplement and found DCS “is

acting in [Child’s] best interest in withholding its consent” to M.M.’s adoption,

the refusal to consent was not unreasonably withheld, and the consent of DCS

to M.M.’s petition to adoption is necessary. Appellant’s Appendix Volume II

at 11, 14. [7] On January 11, 2019, M.M. filed a Motion to Correct Error. The court held a

hearing on the motion on June 18, 2019, during which M.M., Foster Parents,

and DCS appeared by counsel. On July 24, 2019, the court issued an order

denying the motion. M.M. filed a notice of appeal on August 16, 2019.

Discussion [8] The dispositive issue is whether the trial court’s December 11, 2018 order is an

appealable order. “The authority of the Indiana Supreme Court and Court of

Appeals to exercise appellate jurisdiction is generally limited to appeals from

final judgments.” Ramsey v. Moore, 959 N.E.2d 246, 251 (Ind. 2012) (quoting

Allstate Ins. Co. v. Fields, 842 N.E.2d 804, 806 (Ind. 2006), reh’g denied). We have

the duty to determine whether we have jurisdiction over an appeal before

proceeding to determine the rights of the parties on the merits. Allstate Ins. Co. v.

Scroghan, 801 N.E.2d 191, 193 (Ind. Ct. App. 2004), trans. denied. Pursuant to

Ind. Appellate Rule 5, this Court has jurisdiction over appeals from final

judgments of trial courts and only those interlocutory orders from trial courts

that are brought in accordance with Ind. Appellate Rule 14. Court of Appeals of Indiana | Memorandum Decision 19A-AD-1923 | March 9, 2020 Page 4 of 7

[9] Ind. Appellate Rule 2(H) provides that a judgment is a final judgment 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

(5) it is otherwise deemed final by law. [10] The record reveals that the trial court terminated the parental rights of Mother

and L.B. with regard to Child, which it made a ward of DCS “for all purposes

including adoption,” and ordered M.M.’s petition consolidated for trial

purposes with Foster Parents’ petition in June 2017. Appellant’s Appendix

Volume II at 41. M.M. appeals from the December 11, 2018 “Findings and

Order Re: Motion to Supplement the Record and Findings and Order

Regarding the Requirement of Consent By the Department of Child Services.”

Notice of Appeal, August 16, 2019. Though it found DCS’s consent to M.M.’s

adoption necessary and further that DCS had not unreasonably withheld its

consent to that adoption, the court did not resolve fully the contested adoption

of Child. Furthermore, although M.M. filed a motion on January 11, 2019,

titled “Motion to Correct Error,” that motion is more accurately characterized

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as a motion to reconsider the trial court’s December 11, 2018 order. See

Hubbard v. Hubbard, 690 N.E.2d 1219, 1221 (Ind. Ct. App. 1998) (“[M]otions to

reconsider are properly made and ruled upon prior to the entry of final

judgment” (citing Ind. Trial Rule 53.4(A)); Trial Rule 59(C) (providing that

motions to correct error are to be filed “not later than thirty (30) days after the

entry of a final judgment”) (emphasis added)). Under the circumstances, the

December 11, 2018 judgment was not a final judgment from the consolidated

pending cases, and the court did not state there was no just reason for delay

under Ind. Trial Rule 54. [11] M.M. is therefore appealing from an interlocutory order. Parties are permitted

to appeal “as a matter of right” certain interlocutory orders. 2 The court’s order

does not fall under any of these categories. Thus, M.M. was not entitled to

2 Ind. Appellate Rule 14(A) provides: Appeals from the following interlocutory orders are taken as a matter of right by filing a Notice of Appeal with the Clerk within thirty (30) days after the notation of the interlocutory order in the Chronological Case Summary: (1) For the payment of money; (2) To compel the execution of any document; (3) To compel the delivery or assignment of any securities, evidence of debt, documents or things in action; (4) For the sale or delivery of the possession of real property; (5) Granting or refusing to grant, dissolving, or refusing to dissolve a preliminary injunction; (6) Appointing or refusing to appoint a receiver, or revoking or refusing to revoke the appointment of a receiver; (7) For a writ of habeas corpus not otherwise authorized to be taken directly to the Supreme Court; (8) Transferring or refusing to transfer a case under Trial Rule 75; and (9) Issued by an Administrative Agency that by statute is expressly required to be appealed as a mandatory interlocutory appeal.

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appeal the order as a matter of right. An appeal may be taken from other

interlocutory orders if the trial court certifies its order and this Court accepts

jurisdiction over the appeal, Ind. Appellate Rule 14(B), or if an interlocutory

appeal is provided by statute. Ind. Appellate Rule 14(D). There is no

indication that M.M. sought certification from the trial court or permission

from this Court to file a discretionary interlocutory appeal, and he has not

stated a statutory right to appeal. [12] For the foregoing reasons, we dismiss M.M.’s appeal of the trial court’s

December 11, 2018 order. [13] Dismissed.

Baker, J., and Riley, J., concur.

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