Opinion
NO. 2011-CA-002264-ME NO. 2011-CA-002266-ME NO. 2011-CA-002267-ME NO. 2011-CA-002268-ME NO. 2011-CA-002269-ME
08-10-2012
R.C. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Mary M. Salyer Covington, Kentucky BRIEF FOR APPELLEE: Kelly S. Wiley Covington, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM KENTON CIRCUIT COURT
HONORABLE CHRISTOPHER J. MEHLING, JUDGE
ACTION NO. 07-J-00743
APPEAL FROM KENTON CIRCUIT COURT
HONORABLE CHRISTOPHER J. MEHLING, JUDGE
ACTION NO. 08-J-01891
APPEAL FROM KENTON CIRCUIT COURT
HONORABLE CHRISTOPHER J. MEHLING, JUDGE
ACTION NO. 08-J-01893
APPEAL FROM KENTON CIRCUIT COURT
HONORABLE CHRISTOPHER J. MEHLING, JUDGE
ACTION NO. 11-J-01416
OPINION
AFFIRMING IN PART, VACATING IN PART,
AND REMANDING
BEFORE: COMBS, DIXON AND VANMETER, JUDGES. DIXON, JUDGE: The Appellant, R.C., is the mother of four children who were found to be dependent, neglected, or abused in the proceedings underlying these five appeals. Four of the cases were adjudicated on November 18, 2011, and they are the primary cases addressed in this opinion. In those four cases, Appellant neither received service of process, nor participated in the proceedings. Because the court did not have personal jurisdiction to render those judgments against Appellant, we must vacate those orders and remand them for additional proceedings. The fifth case, 2011-CA-2267-ME, involves a disposition order relating to an earlier educational neglect proceeding in which Appellant fully participated. As to that case, no specific errors have been alleged on appeal; accordingly, we affirm the judgment and decline to further address that case in this opinion.
2011-CA-002264-ME, 2011-CA-002266-ME, 2011-CA-002268-ME, 2011-CA-002269-ME.
2011-CA-002267-ME: Specifically, this appeal arises from a disposition order entered November 10, 2011. One of the children was the subject of a July 21, 2011, adjudication hearing on allegations of educational neglect. Appellant received service of process and participated in the adjudication hearing; the court determined the child was neglected.
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On September 22, 2011, Lynn Young, a social worker from the Cabinet filed dependency, neglect, and abuse petitions against the Appellant on behalf of the four children. According to the petition, A.C., Appellant's sixteen-year-old daughter, had been sexually abused by Appellant's live-in boyfriend over a two-year period. Law enforcement officers attempted to serve Appellant with the petitions at her Covington, Kentucky, address; however, Appellant and the other three children had fled and could not be served. The Cabinet later learned that Appellant had taken her other children to Brooklyn, New York.
On September 26, 2011, the court held a temporary removal hearing pursuant to Kentucky Revised Statutes (KRS) 620.080, which Appellant did not attend. Counsel was appointed to represent Appellant and guardian ad litems (GAL) were appointed for the children. The court thereafter entered temporary orders committing all four children to the temporary custody of the Cabinet and a full adjudicatory hearing was scheduled for November 10, 2011. Upon learning of the whereabouts of Appellant and her other children through Facebook postings, the Cabinet forwarded the temporary custody orders to New York authorities who in turn removed the children from Appellant's custody. The Cabinet then retrieved the three children from New York and brought them back to Covington. However, it appears that no further attempts were made to serve Appellant with the summons regarding these petitions.
Appellant did not appear at the adjudicatory hearing on November 10. Appellant's counsel sought a continuance, asserting that it was improper to go forward when the Appellant had never been served. The court acknowledged counsel's argument, but denied the request for a continuance. At the conclusion of the hearing, the court left the record open for the limited purpose of accepting evidence contained in the children's recorded interviews. On November 18, 2011, the court rendered findings and conclusions adjudicating all four children as dependent, neglected, or abused. This appeal followed.
Appellant contends the trial court erred by entering judgments against her when she had not been served with the underlying petition and summons. The Cabinet asserts there was no error because, in its view, Appellant was aware of the proceedings and intentionally fled Kentucky to avoid service of process.
In Kentucky, personal service is required unless a statute or rule provides otherwise. Burton v. Dowell Div., 471 S.W.2d 708, 711 (Ky. 1971). Pursuant to KRS 620.070(2),
After a [dependency, neglect, or abuse] petition has been filed, the clerk of the court shall issue, and the sheriff or other authorized agent shall serve, a copy of the petition and a summons to the parent or other person exercising custodial control or supervision, unless their identity or
location is unknown, in which case the petition and summons shall be served on the nearest known adult relative.
Here, KRS 620.070 clearly contemplates personal service on a parent or nearest relative. It is undisputed that Appellant was never served. Nor is there any record of service on any other relative. The proceedings continued through trial and adjudication without any formal notice to or participation by Appellant.
Notice and an opportunity to be heard are bedrock principles of an individual's right to due process of law. Storm v. Mullins, 199 S.W.3d 156, 162 (Ky. 2006). There is no merit in the Cabinet's argument that Appellant's rights were not infringed because she allegedly had knowledge of the proceedings or intentionally fled the jurisdiction. "[M]ere knowledge of the pendency of an action is not sufficient to give the court jurisdiction, and, in the absence of an appearance, there must be a service of process." Burton, 471 S.W.2d at 710-11. "Furthermore, we are unaware of any requirement that a defendant voluntarily submit himself to the jurisdiction of the court when the defendant has not been properly served, even if the defendant has knowledge of the lawsuit pending against him." Miller v. McGinty, 234 S.W.3d 371, 376 (Ky. App. 2007). In sum, "[o]ne who is not served with process does not have the status of a party to the proceeding[;]" consequently, any judgment rendered against that defendant is void. Burton, 471 S.W.2d at 711.
While we agree with the Cabinet that there is circumstantial evidence that Appellant was—or should have been—aware of the date for the adjudicatory hearing, it is undisputed that the requirements of service under KRS 620.070 were not met. Appellant was not properly served with notice of the dependency, neglect, and abuse proceedings initiated against her. As a result, we are compelled by the fundamental requirements of due process to determine that the judgments in 2011-CA-002264-ME, 2011-CA-002266-ME, 2011-CA-002268-ME, and 2011-CA-002269-ME are void.
For the reasons stated herein, the judgments in 2011-CA-002264-ME, 2011-CA-002266-ME, 2011-CA-002268-ME, and 2011-CA-002269-ME are vacated and remanded. The judgment in 2011-CA-002267-ME is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Mary M. Salyer
Covington, Kentucky
BRIEF FOR APPELLEE: Kelly S. Wiley
Covington, Kentucky