Dismissing Appeal for Failure to Name Cabinet for Health and Family Services as Appellee on Notice of Appeal and Appealing from a Non-Final Order – Published Opinion from Ky. Court of Appeals


D.L.B. v. Commonwealth


Father appealed a finding that he physically abused his son. The caption of Father’s notice of appeal listed “In re: [D.L.B., IV, a minor child” and “Commonwealth of Kentucky, Cabinet for Health and Family Services” as Petitioners. The body of the notice of appeal named Father as the appellant and “the Commonwealth of Kentucky” as the appellee. The certificate of service listed the assistant county attorney who litigated the DNA case, the trial judge, the guardian ad litem, and Mother’s attorney. No representative for the Cabinet was listed on the certificate of service, and the Cabinet did not participate in the appeal. Father appealed from Family Court’s adjudication order.

The Court of Appeals held that failure to give actual notice of the appeal to the Cabinet may result in dismissal, because just including the Cabinet in the caption of the notice of appeal does not amount to substantial compliance with CR 73.03, requiring naming all parties to the appeal and a certificate that all parties have been served with the notice. The Court of Appeals also held that disposition orders are the final and appealable orders—not adjudication orders. For those reasons, the appeal was dismissed.

Judge Thompson dissented and argued that the Court of Appeals should consider the merits of the appeal, because Father substantially complied with the requirements of CR 73.03 by naming the Commonwealth of Kentucky as a party to the appeal, because the Cabinet is merely the agency through which the Commonwealth acts.

Digested by Nathan R. Hardymon

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