Opinion
NO. 2020-CA-1211-ME NO. 2020-CA-1212-ME NO. 2020-CA-1213-ME
04-09-2021
M.S. AND C.S. APPELLANTS v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANTS: M.S., pro se Henderson, Kentucky C.S., pro se Henderson, Kentucky BRIEF FOR APPELLEE: Lawson Lambert Henderson, Kentucky
NOT TO BE PUBLISHED APPEAL FROM HENDERSON CIRCUIT COURT
HONORABLE SHEILA N. FARRIS, JUDGE
ACTION NO. 15-J-00008-007 APPEAL FROM HENDERSON CIRCUIT COURT
HONORABLE SHEILA N. FARRIS, JUDGE
ACTION NO. 17-J-00047-006 APPEAL FROM HENDERSON CIRCUIT COURT
HONORABLE SHEILA N. FARRIS, JUDGE
ACTION NO. 19-J-00345-003 OPINION AND ORDER
DISMISSING
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BEFORE: ACREE, DIXON, AND MCNEILL, JUDGES. DIXON, JUDGE: M.S. and C.S. appeal the orders of the Henderson Circuit Court entered July 30, 2020, adjudicating that H.S., L.S., and M.S. were neglected or abused children. In each of the above-captioned cases, the child subject of the action was not named in either the caption or body of the notices of appeal. This Court issued orders for Appellants to show cause why these appeals should not be dismissed for failure to name an indispensable party. Appellants responded conceding the children were not named but noting their guardian ad litem (GAL) was served with the notices of appeal. By order entered December 15, 2020, a motion panel of this Court passed the issue of whether the appeals should be dismissed to the panel assigned to determine the merits. After careful review, we order that these appeals be dismissed.
CR 73.03(1) states "the notice of appeal shall specify by name all appellants and all appellees[.]" The failure to name an indispensable party is a jurisdictional defect that cannot be remedied after the period for filing a notice of appeal has expired and necessitates dismissal of the appeal. Browning v. Preece, 392 S.W.3d 388 (Ky. 2013); City of Devondale v. Stallings, 795 S.W.2d 954 (Ky. 1990). While the Appellants note they served the children's GAL, service alone is insufficient to transfer jurisdiction of the children to this Court and will not prevent dismissal if the children are indispensable parties to these appeals. See Stallings, 795 S.W.2d 954. The children are indispensable parties if they have an interest that would be affected, positively or negatively, by a decision of this Court. Browning, 392 S.W.3d at 391.
Kentucky Rules of Civil Procedure.
Considering the primary focus of dependency, neglect, and abuse (DNA) actions is the preservation of a child's fundamental right to care and protection, quite plainly, the children have an interest that would be affected by a decision of this Court. See KRS 620.010. Further, we are guided by the reasoning of R.L.W. v. Cabinet for Human Resources, 756 S.W.2d 148 (Ky. App. 1988), wherein a prior panel of this Court held that children are indispensable parties to appeals from termination of parental rights (TPR) actions. Like TPR actions, DNA actions are required to be brought in re the interest of the child; GALs are appointed to represent the child; the child is identified as a party who can take an appeal; and, again, the child's interest is the primary focus of the action. See KRS 610.020, 620.100, 620.155, and 620.010. Accordingly, the children are indispensable parties to these appeals.
Kentucky Revised Statutes. --------
For the foregoing reasons, we find that Appellants failed to show sufficient cause to prevent dismissal. Therefore, the Court ORDERS that 2020-CA-1211-ME, 2020-CA-1212-ME, and 2020-CA-1213-ME be DISMISSED.
ALL CONCUR.
ENTERED: April 9, 2021
/s/ Donna Dixon
Judge, Court of Appeals BRIEFS FOR APPELLANTS: M.S., pro se
Henderson, Kentucky C.S., pro se
Henderson, Kentucky BRIEF FOR APPELLEE: Lawson Lambert
Henderson, Kentucky