Altice, J.
Case Summary
T.W. appeals the trial court’s order for involuntary temporary commitment. He argues that the order is defective because it lacked the trial judge’s signature and contained only the signature of a commissioner. Additionally, T.W. contends that there was insufficient evidence to support his temporary commitment.
We affirm.
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We initially address T.W.’s claim that the order for temporary commitment is defective because it contains only the signature of Commissioner Scanlan and lacked the required judge’s signature. Indeed, at the time the order was issued, Indiana law expressly barred Commissioner Scanlan from entering a final appealable order in this case. See Ind. Code § 33-23-5-8; Capehart v. Capehart, 771 N.E.2d 657, 662 (Ind. Ct. App. 2002) (“magistrates and commissioners have identical authority”). [FN 2: This statute has since been amended, effective July 1, 2018. The amendment removed the limitation regarding magistrates (and, thus, commissioners) entering a final appealable order. I.C. § 33-23-5-9(a), however, still requires that the court “enter the final order” in instances such as this.]
Regardless, T.W. has waived appellate review of this issue because he did not object to the commitment order at any point prior to this appeal. “‘[I]t has been the long-standing policy of [the Indiana Supreme Court] to view the authority of the officer appointed to try the case not as affecting the jurisdiction of the court’ – and so ‘the failure of a party to object at trial to the authority of a court officer to enter a final appealable order waives the issue for appeal.’” In re Adoption of I.B., 32 N.E.3d 1164, 1173 n.6 (Ind. 2015) (quoting Floyd v. State, 650 N.E.2d 28, 32 (Ind. 1994)); see also City of Indianapolis v. Hicks, 932 N.E.2d 227, 231 (Ind. Ct. App. 2010) (“defects in the authority of a court officer, as opposed to jurisdiction of the trial court itself, to enter a final order will be waived if not raised through a timely objection”), trans. denied. “[A]ny objection to the authority of an adjudicative officer must be raised at the first instance the irregularity occurs, or at least within such time as the tribunal is able to remedy the defect.” Hicks, 932 N.E.2d at 231.
In Hicks, this court held that the appellant had waived a claim of error by failing to timely object to an order signed by a magistrate but not a judge. Id. We noted that the appellant called the trial court’s attention to the error well after the deadline for ruling on the motion to correct error had expired. Id. In other words, the appellant “fail[ed] to challenge at the first instance an irregularity apparent on the face of the order” and “failed to raise the issue until a point when the trial court could no longer correct the error by issuing an amended order bearing the trial judge’s signature.” Id. Here, T.W. likewise failed to timely object to the order that was signed by only Commissioner Scanlan. [Footnote omitted.] We, therefore, conclude that he has waived the issue for our review. [FN 4: The dissent relies on a recent opinion issued by another panel of this court that found the identical issue (involving the same commissioner and judge) was not waived despite the fact that it was not raised at the trial level. See L.J. v. Health & Hosp. Corp, No. 18A-MH-152, slip op. at 7 n.4 (Ind. Ct. App. October 18, 2018). The L.J. court dismissed the appeal and remanded for the probate court judge to review the matter and enter a final order. We understand the strong desire to address the clear impropriety of the trial court’s handling of the matter, which appears to be a pattern, but we cannot agree with its ultimate decision to dismiss the appeal…]
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Judgment affirmed.
Brown, J., concurs. Tavitas, J., dissents with opinion.
Tavitas, Judge, dissenting.
I respectfully dissent. I differ with the majority’s determination that waiver analysis is dispositive here. I am guided by In Re Civil Commitment of L.J., No. 18A-MH-152, slip op. at pp. 4-6, 8 (Ind. Ct. App. Oct. 18, 2018), in which a panel of this court recently held that the trial judge’s entry of a blanket business record order summarily approving all of the commissioner’s recommendations without review by the trial court warranted dismissal of the respondent’s appeal and remand to the trial court judge to review the matter and enter a final order…
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…It is undisputed that the commissioner had authority to hear the petition for commitment; however, the commissioner did not have statutory authority to enter a final appealable order. See I.C. § 33-33-49-16(a) (stating that “all matters handled by a hearing judge or commissioner under this subsection are under the final jurisdiction and decision of the judge of the probate division”). I conclude, as did the majority, that the commissioner did not have authority to enter a final order here.
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The instant case is not a case in which an inadvertent oversight by the trial court resulted in a final order that was not approved by the trial court judge. Rather, here, as in L.J., the trial court judge expressly abdicated his statutory duties under Indiana Code Section 33-33-49-16. The trial court judge issued a blanket order under the court business docket, which summarily approved all recommendations of the court commissioner without specifically reviewing the case(s) and indicating the trial court judge’s intention to approve the commissioner’s recommendations relating thereto. In so doing, the trial court clearly delegated to the commissioner, without statutory authority, the trial court’s duty to render final decisions.
Here, the trial court judge was required to enter a “decision,” pursuant to Indiana Code Section 33-33-49-16(a) and failed to do so. The waiver analysis employed by the majority falls short under these unique circumstances because the respondent is penalized for failing to “timely” urge the trial court judge to perform his or her statutory duty. A litigant cannot waive a trial court judge’s exercise of statutory responsibility.
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For these reasons, the underlying commitment order here is defective because the trial judge did not specifically review and approve the commissioner’s recommendations as to T.W. Accordingly, I would remand to the trial court for review and approval of the commissioner’s recommended order for temporary commitment. I acknowledge that the issue is moot as to this particular appellant; however, to correct the record, such approval by the trial court judge is necessary.