ILNews

Court of Appeals dismisses termination-order appeal

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Because the parents of six children who were removed from their home did not timely initiate the appeal of termination of their parental rights, the Indiana Court of Appeals dismissed their appeal.

Father F.L. and mother C.B. appealed the trial court orders terminating their parental rights. The five youngest children were placed in foster care because of domestic violence and drug use; the oldest child was already out of the home in a residential placement due to a delinquency case. All the children were adjudicated as children in need of services.

On Aug. 20, 2010, the trial court terminated their parental rights to the five youngest children; on Aug. 23, the court terminated their parental rights to the oldest child. On Aug. 30, C.B. filed a notice of intent to appeal and request for appointment of counsel with the trial court; the father filed an identical notice the next day. The same appellate counsel was appointed to represent the parents. On Sept. 23, their appellate attorney filed a notice of appeal, requesting assembly of the clerk’s record and preparation of the transcript.

The parents filed a motion for permission to file belated notice of appeal with the trial court on Jan. 18, 2011. The trial court entered an order finding it had no authority to grant such relief in a civil matter, and filed with the COA a Notice to Court of Appeals of Untimely Notice of Appeal.

In Term. of Parent-Child Rel. of D.L., et al.; F.L. and C.B. v. I.D.C.S., No. 20A05-1009-JT-635, the appellate court found the parents’ appeal to be untimely. The judges rejected the parents’ argument that their notice of intent to appeal is “functionally equivalent” to the required notice of appeal. The notices of intent filed in August didn’t fulfill the requirements of a notice of appeal as described in Indiana Appellate Rule 9, wrote Chief Judge Margret Robb.

The parents also claimed that the notice of appeal is similar to the Indiana Tort Claims Act’s notice of tort claim requirements. But compliance with the notice requirements of the Tort Claims Act is a procedural precedent; the notice of appeal is jurisdictional, the judge wrote.

“Moreover, even if we were inclined to agree that the two should be treated similarly, the Notices of Intent to Appeal filed by Parents in this case do not fulfill the purpose of the notice of appeal requirement – to serve as a mechanism to alert the trial court and the parties of the initiation of an appeal and to trigger action by the trial court clerk and court reporter, setting in motion the filing deadlines imposed by the Appellate Rules,” she wrote.

The judges then reviewed the record because of the constitutional dimensions of the case and found no clear error in the trial court’s decision.

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  2. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  3. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

  4. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

  5. I am the mother of the child in this case. My silence on the matter was due to the fact that I filed, both in Illinois and Indiana, child support cases. I even filed supporting documentation with the Indiana family law court. Not sure whether this information was provided to the court of appeals or not. Wish the case was done before moving to Indiana, because no matter what, there is NO WAY the state of Illinois would have allowed an appeal on a child support case!

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