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Thursday, September 25, 2014

Ind. Decisions - Supreme Court decides one today, re consent to adoption and re an untimely filing of a notice of appeal

In In the Matter of the Adoption of O.R., N.R. v. K.G. and C.G., a 13-page, 5-0 opinion, Justice Rucker writes:

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

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. 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. [NFP], No. 21A01-1307-AD-322 (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. * * *

The untimely filing of a Notice of Appeal is not a jurisdictional defect depriving the appellate courts of the ability to entertain an appeal. Instead, the timely filing of a Notice of Appeal is jurisdictional only in the sense that it is a Rule-required prerequisite to the initiation of an appeal in the Court of Appeals. Timely filing relates neither to the merits of the controversy nor to the competence of the courts on appeal to resolve the controversy. * * *

Here, in light of Appellate Rule 1, Father’s attempt to perfect a timely appeal, and the constitutional dimensions of the parent-child relationship, we conclude that Father’s otherwise forfeited appeal deserves a determination on the merits. * * *

In sum not only does the record support the trial court’s conclusion that Father’s consent to the adoption of O.R. was not required, but the record also supports the trial court’s conclusion that the Adoptive Parents’ adoption of O.R. is in the child’s best interest. We find no error in this regard.

Conclusion. We affirm the judgment of the trial court.

Posted by Marcia Oddi on September 25, 2014 10:40 AM
Posted to Ind. Sup.Ct. Decisions