Court of Appeals Lacked Jurisdiction Where Party Filed Notice of Appeal After 30 Days and No Excusable Neglect Existed – Published Opinion from Kentucky Supreme Court

Winged Vicotry Statute

Cabinet for Health and Family Services v. H.C., et al.


In a dependency, neglect, and abuse action, the Family Court denied an indigent Mother’s request for expert funding from the indigent funding pool pursuant to KRS 31.185 and KRS 31.110, on November 9, 2017. On December 21, 2017, the Family Court entered a final disposition order. On January 3, 2018, Mother attempted to file a notice of appeal of the December 21, 2017 order, but failed to include a motion to proceed in forma pauperis. The notice of appeal was returned to Mother as a result. Mother then, on January 25, 2018, refiled the notice along with a motion to proceed in forma pauperis. On the same day, she filed a Motion for Belated Appeal in the Family Court, arguing that the date stamp on her copy of the final order was difficult to read, and she believe it reflected an entry date of December 27, 2017. On January 26, 2018, the Family Court granted the belated appeal, citing excusable neglect pursuant to CR 73.02(1)(d).


The Court of Appeals vacated the final disposition order on the merits, while only briefly discussing the timeliness issue in a footnote—accepting jurisdiction despite Mother incorrectly moving for a belated appeal in the Family Court rather than the Court of Appeals. The Cabinet for Health and Family Services appealed to the Kentucky Supreme Court, arguing, in addition to the merits, that the failure to timely appeal requires dismissal.


The Supreme Court vacated the opinion of the Court of Appeals, holding it lacked jurisdiction. It reasoned that a notice of appeal and the filing fees or a motion to proceed in forma pauperis must be filed within 30 days of the date of service of an order. Without the properly filed motion, the Court of Appeals lacks jurisdiction. An exception exists, allowing a belated filing, where “a showing of excusable neglect based on a failure of a party to learn of . . . an order which affects the running of the time for taking an appeal.” However, “a misunderstanding over the filing date is not the type of excusable neglect that would enlarge the time for filing” the notice of appeal, and a misreading of an entry date is not “excusable neglect.”


Digested by Nathan R. Hardymon

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