July 1, 2011

On June 28, 2011, the Indiana Court of Appeals held that a party's substantial compliance with App. R. 9 is insufficient to initiate an appeal in In re D.L., ___ N.E.2d ___ (Ind. Ct. App. 2011), Cause No. 20A05-1009-JT-635. Only strict compliance with the Appellate Rules will allow a party to successfully initiate an appeal.

In this case, a trial court issued orders terminating two parents' parental rights. Within 2 weeks of these orders, the parents each filed a "Notice of Intent to Appeal and Request for Appointment of Counsel." The trial court appointed counsel the same day and, almost a month later, appellate counsel filed a notice of appeal.

On appeal, the Court held that the Notices of Intent to Appeal were not functionally equivalent to a notice of appeal because "[i]t is clear that the purpose of this pleading was to have counsel appointed who would then file a Notice of Appeal on behalf of Parents." Moreover, the Court could not excuse the lack of strict compliance by a finding of substantial compliance because the notice of appeal described in App. R. 9 is jurisdictional.

Because of the constitutional dimensions of a case involving the termination of parental rights, the Court went on to address the merits of that case, but you should not rely on the Court doing the same for you–-particularly since you will be seeking a reversal. Make sure your notice of appeal fully complies with Appellate Rule 9.

Lesson:

1. A notice of appeal's substantial compliance with Appellate Rule 9 is insufficient to initiate an appeal; you must strictly comply with that Rule.