Summary
naming the "Commonwealth of Kentucky" as an appellee in the caption and body of the notices of appeal was not sufficient to include the Cabinet and fatal to the appeals
Summary of this case from D.L.B. v. CommonwealthOpinion
NO. 2019-CA-001097-ME NO. 2019-CA-001098-ME NO. 2019-CA-001099-ME NO. 2019-CA-001100-ME
02-07-2020
A.S.-H. APPELLANT v. COMMONWEALTH OF KENTUCKY; AND A.S., a child APPELLEES A.S.-H. APPELLANT v. COMMONWEALTH OF KENTUCKY; AND N.S.-H., a child APPELLEES A.S.-H. APPELLANT v. COMMONWEALTH OF KENTUCKY; AND A.S.-L., a child APPELLEES
BRIEF FOR APPELLANT: Vickie Masden Arrowood Louisville, Kentucky BRIEF FOR APPELLEE: David A. Sexton Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE DERWIN L. WEBB, JUDGE
ACTION NO. 05-J-500133-003 APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE DERWIN L. WEBB, JUDGE
ACTION NO. 10-J-500221-002 APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE DERWIN L. WEBB, JUDGE
ACTION NO. 16-J-501586-002 APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE DERWIN L. WEBB, JUDGE
ACTION NO. 18-J-502223-001 OPINION AND ORDER
DISMISSING APPEALS
Parties should take note that this decision is designated an "opinion and order" and, therefore, falls under Kentucky Rules of Civil Procedure (CR) 76.38. Thus, petitions for rehearing are not authorized under CR 76.32(1)(a).
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BEFORE: GOODWINE, KRAMER, AND MAZE, JUDGES. GOODWINE, JUDGE: A.S.-H. (Mother) appeals from the Jefferson Family Court's May 9, 2019 orders finding she abused or neglected her four children. After thorough review, we dismiss these appeals for failure to name an indispensable party, the Cabinet for Health and Family Services (the Cabinet).
Mother filed notices of appeal on June 11, 2019. In the body and caption of the notices of appeal, Mother named herself as appellant and named the "Commonwealth of Kentucky" as appellee. She failed to name the Cabinet.
We note that in addition to failing to name the Cabinet as appellee in her notices of appeal, she also failed to name her four children. However, she did list each child's name in the notices' heading, which sufficiently satisfied the requirement.
These cases are strikingly similar to two unpublished cases decided by different panels of this Court—K.H. v. Commonwealth, No. 2017-CA-001863-ME, 2018 WL 5310145 (Ky. App. Oct. 26, 2018) and M.D. v. Cabinet for Health & Family Servs., No. 2009-CA-000615-ME, 2009 WL 2971533 (Ky. App. Sept. 18, 2009).
Like the cases before us, the parents in K.H. and M.D. failed to name the Cabinet in their respective notices of appeal. Under CR 73.03(1), a notice of appeal shall specifically identify all appellants and all appellees. The failure to name an indispensable party in the notice of appeal is a jurisdictional defect, resulting in dismissal of the appeal. Slone v. Casey, 194 S.W.3d 336, 337 (Ky. App. 2006) (citing CR 19.02; City of Devondale v. Stallings, 795 S.W.2d 954 (Ky. 1990)). And when the Cabinet files a dependency, neglect, or abuse petition, it acts as the plaintiff. Commonwealth, Cabinet for Health and Family Servs. v. Byer, 173 S.W.3d 247, 249 (Ky. App. 2005). Thus, for appeals of those dependency, neglect, and abuse cases, the Cabinet is an indispensable party. Id.
Kentucky Rules of Civil Procedure.
In these cases, Mother named the "Commonwealth of Kentucky" as an appellee in the body of the notices of appeal. However, upon review of the notices of appeal, it is clear Mother failed to name the Cabinet as a party. As the Commonwealth consists of hundreds of agencies, departments, boards, and commissions, merely naming the Commonwealth of Kentucky, rather than the Cabinet, is insufficient as a matter of law. As previously stated, our case law clearly holds that where the Cabinet was the initiating party in a dependency, neglect, and abuse action, it is an indispensable party to the appeal. See Byer, 173 S.W.3d at 249. As the Cabinet initiated the dependency, neglect, and abuse actions in these cases, it is an indispensable party to these appeals, and Mother's failure to name it is fatal to the appeals.
The notices of appeal reflect that Mother served copies on the Assistant Counsel of the Cabinet's Department for Community Based Services. But this does not satisfy the requirement of CR 73.03 for naming the Cabinet as a party to the appeals.
Had Mother's notices of appeal met the requirements of CR 73.03(1) listing all indispensable parties, her arguments lack merit. Under Kentucky law, the term "abused or neglected child" means a child whose health or welfare is harmed or threatened with harm when "[h]is or her parent, guardian, person in a position of authority or special trust, . . .
3. Engages in a pattern of conduct that renders the parent incapable of caring for the immediate and ongoing needs of the child, including but not limited to parental incapacity due to a substance use disorder as defined in KRS 222.005;KRS 600.020(1)(a)3, 4, 8. Kentucky's dependency statutes, KRS 620.060-KRS 620.100, create a procedure that permits the Cabinet's removal of abused or neglected children from their homes. The removal intends to: (1) protect the children; and (2) permit the Cabinet to provide rehabilitative services to the parents and the children. The complainant, the Cabinet here, bears the burden of proving abuse or neglect "by a preponderance of the evidence." KRS 620.100(3).
4. Continuously or repeatedly fails or refuses to provide essential parental care and protection for the child, considering the age of the child;
. . .
8. Does not provide the child with adequate care, supervision, food, clothing, shelter, and education or medical care necessary for the child's well-being.
Kentucky Revised Statutes. --------
In this case, Mother argues the Cabinet presented no sufficient evidence to establish the children were medically neglected. Further, she contends the allegations of her drug problems, failure to provide for her children, and that her children were medically neglected before she had to leave Maternal Grandmother's home were unproven. And she also believes moving into Maternal Grandmother's home, in and of itself, demonstrated she cared for her children's well-being. We disagree.
Specifically, the family court heard from two witnesses regarding Mother's conduct relative to her children. According to the investigative worker, Mother had no intention of taking her kids to mental health services and Mother never disclosed to the school required information for treatment. Additionally, at least one of her children was unable to receive dental care because she refused to give Maternal Grandmother a medical card. Mother also never financially assisted in the well-being of her children.
Mother's refusal to cooperate, in the most basic way, with the Cabinet and Maternal Grandmother demonstrated her ability to place her children at risk for medical neglect. The family court's determination as to the weight and credibility of the evidence on this issue was not clearly erroneous. Given this determination, the evidence clearly supported the family court's finding that the children were at risk for medical neglect.
Therefore, even if her appeals had survived dismissal for failure to name an indispensable party, we conclude there was substantial evidence supporting the family court's finding of neglect in these cases.
ORDER
Therefore, we ORDER Appeal Nos. 2019-CA-001097-ME; 2019-CA-001098-ME; 2019-CA-001099-ME; AND 2019-CA-001100-ME be DISMISSED for failure to name an indispensable party.
ALL CONCUR.
ENTERED: February 7, 2020
/s/ Pamela R. Goodwine
JUDGE, COURT OF APPEALS BRIEF FOR APPELLANT: Vickie Masden Arrowood
Louisville, Kentucky BRIEF FOR APPELLEE: David A. Sexton
Louisville, Kentucky