Justices affirm adoption despite father’s untimely appeal

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The Indiana Supreme Court in its decision affirming the adoption of a girl first tackled the issue of appellate jurisdiction to entertain the biological father’s appeal.

O.R.’s biological mother consented to her adoption by K.G. and C.G., with whom O.R. had been placed for most of her life once she was placed in foster care. Biological father N.R. did not consent to the adoption. For much of O.R.’s life, N.R. was serving a sentence in the Department of Correction for domestic battery and adjudication as a habitual offender.

The trial court granted the adoption petition May 9, 2013. N.R. wrote a letter to the court clerk filed June 6 asking for appointment of appellate counsel. On July 3, the trial court appointed appellate counsel, which filed an amended notice of appeal July 18. The Indiana Court of Appeals sua sponte dismissed his appeal on the grounds it lacked subject matter jurisdiction because father did not timely file his notice to appeal within the 30 days outlined in Appellate Rule 9(A).

Justice Robert Rucker asked in In the Matter of the Adoption of O.R., N.R. v. K.G. and C.G., 21S01-1409-AD-592, whether the timely filing of a notice of appeal is actually a matter of jurisdiction, in which the Supreme Court answered no. Rucker pointed out Rule 9(A) does not mention jurisdiction at all, only that the right to appeal shall be forfeited.

“Forfeiture and jurisdiction are not the same,” he wrote.  

“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,” he continued.

In light of Appellate Rule 1, N.R.’s attempt to perfect a timely appeal, and the constitutional dimensions of the parent-child relationship, the justices decided that his otherwise forfeited appeal deserves a determination on the merits.  

The justices focused on one of the three findings of the trial court: that N.R. failed without justifiable cause to communicate significantly with O.R. for at least one year, even though he was able to do so. Over a six-year period, the only communication N.R. had with his daughter was a phone call in 2011. Father never attempted to mail her letters from prison or make any other phone calls.

And because O.R. has lived with her adoptive family for most of her life and can provide her a loving, stable home, granting the adoption is in her best interests.

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