L.K.H. v. CABINET FOR HEALTH AND FAMILY SERVICES; AND M.D.H.
Annotate this Case
Download PDF
RENDERED:
JANUARY 5, 2007; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2006-CA-000153-ME
L.K.H.
APPELLANT
APPEAL FROM MARION CIRCUIT COURT
HONORABLE DOUGHLAS M. GEORGE, JUDGE
ACTION NO. 04-CI-00226
v.
CABINET FOR HEALTH AND
FAMILY SERVICES; AND M.D.H.
APPELLEES
OPINION AND ORDER
DISMISSING
** ** ** ** **
BEFORE:
ACREE, SCHRODER1 AND VANMETER, JUDGES. SCHRODER, JUDGE:
L.K.H. has appealed from the orders of the Marion Circuit Court
dismissing her Petition for Custody of her granddaughter and
denying her motion to alter, amend or vacate.
Because L.K.H.
failed to name an indispensable party (the child) in her notice
of appeal and the appeal is untimely, we must dismiss the abovestyled appeal.
1
Judge Wilfrid A. Schroder completed this opinion prior to the expiration of
his term of office on December 31, 2006. Release of the opinion was delayed
by administrative handling.
L.K.H., a resident of Indiana, is the paternal
grandmother of B.J.H., born April 21, 1996, to M.D.H. and B.S.B,
who were never married.
In early 2004, an Indiana court
adjudged B.S.B., who passed away in 2000, to be B.J.H.’s natural
father.
filed.
M.D.H. was incarcerated at the time the petition was
B.J.H. and her two half-siblings have been in the
custody of the Cabinet for Health and Family Services since late
2002 with a permanency goal of adoption, and an involuntary
termination of parental rights action was filed in Marion County
in early 2004 (Confidential Action No. 04-AD-00001).
On July 13, 2004, L.K.H. filed a Petition for Custody
in Marion Circuit Court seeking sole custody of B.J.H.2
The
Cabinet moved to dismiss her petition, citing improper venue,
L.K.H.’s failure to state a claim in that she lacked standing
(L.K.H. is not her parent, B.J.H. was not in her custody, and
she did not qualify as a de facto custodian), and her failure to
name B.J.H. as an indispensable party.
The circuit court later
permitted L.K.H. to amend her petition to add B.J.H. as a party
and for the appointment of guardians ad litem for the child and
her mother.
L.K.H. then moved to intervene in the termination
of parental rights case that had been filed earlier that year.
The Cabinet objected to this motion, again citing L.K.H.’s lack
2
We note that Judge Doughlas M. George is the presiding judge in both the
termination case and L.K.H.’s custody case.
-2-
of standing as a non-parent without actual possession or control
of the child.
In response to the motion to dismiss and objection to
her motion to intervene, L.K.H. argued that she had standing
pursuant to KRS 403.420(4)(b), which allowed a non-parent to
file for custody if the child was not in the physical custody of
one of the parents.
In this case, B.J.H. was not in the
physical custody of either parent when she filed her petition,
as M.D.H. was incarcerated and B.S.B. was deceased.
However,
the Cabinet pointed out in a supplemental pleading in response
that KRS 403.420 had been repealed on July 13, 2004, the same
date on which L.K.H. filed her petition.
Under the newly
enacted HB 91, a person must qualify as a de facto custodian or
a person acting as a parent, and have physical custody for a
specified time before being permitted to seek custody of the
child.
Here, B.J.H. had been in the custody of the Cabinet
since 2002, and resided with foster parents.
On November 22, 2004, the circuit court entered an
order dismissing L.K.H.’s petition for custody, finding that the
new law applied and that she did not have standing as she could
not establish physical custody of the child.
On November 30,
2004, the circuit court entered an order in the termination
action denying L.K.H.’s motion to intervene, citing her lack of
standing and noting that it had previously ordered that she
-3-
could not establish physical custody of B.J.H. sufficient to
maintain her custody action.
On December 2, 2004, L.K.H. filed
a CR 59.05 motion to alter, amend, or vacate the November 30,
2004, order, but referenced her custody petition in the body of
the memorandum in support of the motion.
The circuit court then
decided to hold the motion to alter, amend, or vacate in
abeyance pending a decision in the termination case.
Apparently
M.D.H.’s parental rights were terminated, because the Cabinet
notified the circuit court in August, 2005, that B.J.H.’s foster
parents filed an adoption petition on July 25, 2005.
The
Cabinet then suggested that Baker v. Webb, 127 S.W.3d 622 (Ky.
2004), addressing the right of a relative to intervene in an
adoption proceeding, mandated that the issue of B.J.H.’s
permanent custody be resolved in the pending adoption case.
Agreeing with the Cabinet, the circuit court entered an order on
January 3, 2006, denying the motion to alter, amend, or vacate,
and finding that L.K.H. had a right to intervene in the adoption
proceeding pursuant to Baker.
This appeal from the November 22,
2004, and the January 3, 2006, orders followed.
In her brief, L.K.H. argues that the Cabinet did not
act in the best interests of the child by failing to give
preference to relatives, that application of the de facto
custodian definition was improper, that KRS 403.270(1) is
unconstitutional, and that the circuit court prematurely denied
-4-
her motion to alter, amend or vacate prior to allowing her to
present favorable evidence.
The Cabinet, in turn, continues to
argue that L.K.H. does not qualify as a de facto custodian, that
she does not have standing to pursue a custody action, and that
KRS 403.270 is constitutional.
In our review of this appeal, we have identified two
procedural defects that appear to be fatal as both affect our
subject matter jurisdiction to review the case.
First, L.K.H.
failed to name B.J.H. or her guardian ad litem as an appellee in
her notice of appeal, either in the caption or in the body.
An
appellant is required by CR 73.03 to “specify by name all
appellants and all appellees” in the notice of appeal.
Early in
this case, the Cabinet had moved to dismiss the Petition for
Custody, citing L.K.H.’s failure to name B.J.H. as a necessary
party.
In response to this motion, L.K.H. promptly moved for
leave to amend her petition in order to name B.J.H. as a party
and for the appointment of a guardian ad litem to protect her
interests, which the circuit court granted.
However, L.K.H.
failed to name B.J.H. as a party in the appeal.
We liken the situation in this case to a proceeding to
terminate parental rights, especially as the Petition for
Custody was intertwined with a pending termination of parental
rights case.
The law is well settled in this Commonwealth that
children are necessary parties in both termination proceedings
-5-
as well as appeals from rulings in such cases.
R.L.W. v.
Cabinet for Human Resources, 756 S.W.2d 148 (Ky.App. 1988).
An
appellant’s failure to name an indispensable or necessary party
in the notice of appeal constitutes grounds for dismissal.
Id.
In the present case, L.K.H. did not name B.J.H. or her guardian
ad litem in either the body or caption of the notice of appeal,
thereby depriving B.J.H. of the ability to protect her
interests.
We have also determined that L.K.H.’s appeal from the
November 22, 2004, order appears to be untimely.
Pursuant to CR
73.02(1)(a), a notice of appeal must be filed within thirty days
after notation by the clerk of service of the judgment.
However, the running of the time to file a notice of appeal is
terminated by the filing of a timely motion under CR 59, among
others, and the running of time for the appeal begins again upon
a ruling on such a motion.
In this case, L.K.H. filed a CR
59.05 motion to alter, amend or vacate, which must be served by
ten days after the entry of the final judgment.
While L.K.H.
filed a CR 59.05 motion within ten days of the entry of the
November 22 order, she did not reference that order in her
motion.
Rather, she referenced the November 30, 2004, order
denying her motion to intervene in the termination proceedings.
Because she did not technically move to alter, amend, or vacate
the November 22 order, the time for the filing of a notice of
-6-
appeal was not terminated, and the thirty-day period would have
elapsed on December 22, 2004.
L.K.H. did not file her notice of
appeal until January 17, 2006, over one year later.
While this
mistake might not have been fatal, as L.K.H. did reference the
dismissal of her Petition for Custody (the subject of the
November 22 order) in the memorandum supporting her CR 59.05
motion, when coupled with her failure to name B.J.H. as a party,
we have no choice but to dismiss her appeal.
For the foregoing reasons, the above-styled appeal is
ORDERED DISMISSED.
ALL CONCUR.
ENTERED:
_January 5, 2007_
BRIEFS FOR APPELLANT:
Elmer J. George
Lebanon, Kentucky
_/s/ Wil Schroder__________
JUDGE, COURT OF APPEALS
BRIEF FOR APPELLEE, CABINET
FOR HEALTH AND FAMILY
SERVICES:
Richard G. Sloan
Elizabethtown, Kentucky
-7-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
