C.B. v. Indiana Department of Child Services
2011 Ind. App. LEXIS 1210
| Ind. Ct. App. | 2011Background
- Parents’ six children were adjudicated CHINS due to domestic violence, drug use, and prior substantiated neglect, with the five younger children in foster care and the oldest in residential placement.
- In January 2010 the oldest child ran away from placement; in March 2010 DCS filed petitions to terminate parental rights as to all six children.
- The trial court issued two termination orders in August 2010: one for the five youngest children (Aug. 20) and one for the oldest child (Aug. 28), addressing special circumstances for the oldest.
- Mother’s and Father’s Notices of Intent to Appeal were filed August 30, 2010 and August 31, 2010 (trial counsel appointed).
- Appellate counsel filed a Notice of Appeal September 23, 2010; Parents then sought belated relief in January 2011, arguing the intent notices effectively initiated timely appeals.
- The court ultimately held the Notices of Intent to Appeal were insufficient to initiate a timely appeal, and dismissed the appeal for lack of a timely notice of appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Notices of Intent to Appeal sufficed to initiate timely appeal | Parents argue NOIAs were functionally equivalent to a Notice of Appeal. | The NOIAs did not meet Appellate Rule 9 requirements to initiate an appeal timely. | NOIs not timely; appeal dismissed for lack of timely Notice of Appeal. |
Key Cases Cited
- Bohlander v. Bohlander, 875 N.E.2d 299 (Ind. Ct. App. 2007) (failure to timely file a Notice of Appeal forfeits the right to appeal)
- Porter v. Fort Wayne Cmty. Schs., 743 N.E.2d 341 (Ind. Ct. App. 2001) (notice requirements liberalized for substantial compliance in tort claims context)
- Brown v. Alexander, 876 N.E.2d 376 (Ind. Ct. App. 2007) (notice requirements in Tort Claims Act treated as procedural prerequisite)
- In re D.B., 942 N.E.2d 867 (Ind. App. 2011) (appellate review deferential to trial court in termination cases; clear error standard)
- Bester v. Lake County Office of Family & Children, 839 N.E.2d 143 (Ind. 2005) (Fourteenth Amendment considerations in termination cases)