Substantial Compliance with CR 73.03 Exists if the G.A.L. Is Given Adequate Notice of Appeal of TPR Action, Even If the Children Are Not Named Parties – Published Opinion from Supreme Court of Ky.

Wooden Puzzle

M.A.B. v. Com., Cabinet for Health & Fam. Servs.

Barren Circuit Court

Questions Presented: Appellate Procedure. Children as Indispensable Parties in an Appeal from a Termination of Parental Rights. Notice to the Guardian Ad Litem. The issue is whether children are indispensable parties on appeal in a termination of parental rights case or whether notice to the guardian ad litem is sufficient to protect the children’s interest on appeal.

The issue in this case is whether there is substantial compliance with CR 73.03, which requires that a notice of appeal specify by name all appellants and appellees, where, although the children of the termination of parental rights case were not named as parties, the guardian ad litem received adequate notice of the appeal. The Supreme Court of Kentucky held that service of the notice of appeal upon a child’s guardian ad litem is sufficient to provide adequate notice to the child and to confer jurisdiction over that child to an appellate court. 73.02 only requires dismissal of an appeal if a party fails to timely file a notice of appeal, cross-appeal, or motion for discretionary review. Failure to comply with other rules relating to appeals or motions for discretionary review permit other sanctions up to and including dismissal of the appeal. The sanction imposed should bear some resemblance to the seriousness of the defect. Dismissal is not a proper remedy when no substantial harm or prejudice has resulted from the defect. The statutorily mandated appointment of a guardian ad litem for children at issue in a termination proceeding sufficiently protects their interests, as long as the guardian ad litem is served with the notice of appeal.

Digested by Nathan R. Hardymon

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