Kenneth Rosa v. State of Missouri Dept. of Social Services Children's Div.

• Court: Missouri Court of Appeals
• Decided: October 15, 2024
• Docket: ED112003
• Status: Published

Opinion

In the Missouri Court of Appeals Eastern District DIVISION ONE

KENNETH ROSA, ) No. ED112003 ) Appellant, ) Appeal from the Circuit Court ) of St. Louis County v. ) ) Honorable Amanda B. NcNelley STATE OF MISSOURI DEPT. ) OF SOCIAL SERIVES ) CHILDREN’S DIV., ) ) Respondent. ) Filed: October 15, 2024

This appeal stems from the placement of Kenneth Rosa’s name on the Central Registry as

a perpetrator of child abuse and/or neglect. The circuit court denied Mr. Rosa’s petition for judicial

review, finding the preponderance of the evidence showed that Mr. Rosa had perpetrated child

abuse and/or neglect and thus Mr. Rosa’s name should remain on the Central Registry as a

perpetrator of child abuse and/or neglect. Mr. Rosa now appeals the circuit court’s judgment. We

dismiss the appeal, however, due to Mr. Rosa’s failure to comply with Supreme Court Rule 84.04

regarding appellants’ briefs.

Factual and Procedural Background

The following facts are gleaned from our search of the record. On January 6, 2018, a

hotline call was initiated to the Franklin County Children’s Division (“Children’s Division”)

alleging that Mr. Rosa perpetrated physical abuse upon his daughter, a minor, who was fifteen years old at the time. The Children’s Division substantiated the allegations of physical abuse by a

preponderance of evidence. The Child Abuse and Neglect Review Board reviewed the

substantiated findings of the Children’s Division and on July 23, 2020, notified Mr. Rosa that it

upheld the Children’s Division decision to substantiate the claim of physical abuse. Mr. Rosa filed

a petition for de novo judicial review.

The circuit court’s review was limited to a determination, by a preponderance of the

evidence standard, as to whether Mr. Rosa perpetrated child abuse and/or neglect and thus whether

his name should remain on the Central Registry as a perpetrator of child abuse and/or neglect. The

circuit court, upon reviewing the evidence and testimony, found based upon the competent

evidence that Mr. Rosa perpetrated child abuse and/or neglect and thus his name would remain on

the Central Registry as a perpetrator of child abuse and/or neglect.

Mr. Rosa appealed, and filed his appellant’s brief in this Court on March 18, 2024. That

brief failed to comply with Supreme Court Rule 84.04 regarding appellants’ briefs in multiple

ways. Mr. Rosa’s jurisdictional statement, statement of facts, points relied on, and arguments all

failed to comply with Rule 84.04. Mr. Rosa also did not file an appendix. This Court issued an

order that outlined the deficiencies and directed Mr. Rosa to file an amended brief that complied

with Rule 84.04. The order stated that Mr. Rosa’s failure to do so would result in his appeal being

dismissed. Following two extensions of time, Mr. Rosa filed an amended brief that still failed to

comply with Rule 84.04. Among other deficiencies, Mr. Rosa’s brief failed to include a fair and

concise statement of facts relevant to the question presented in the appeal with citation to specific

pages in the record on appeal and without including impermissible argument as required by Rule

84.04(c). Next, Mr. Rosa did not present points relied on that complied with Rule 84.04(d), in that

the points did not specifically identify the action of the trial court being challenged, the legal

2 reasons for his claims of reversible error, and why, in the context of the case, those legal reasons

support the claims of reversible error. Further, Mr. Rosa did not present argument corresponding

to his points relied upon with reference to supporting legal authority as required by Rule 84.04(e).

Finally, Mr. Rosa again failed to include an appendix as required by Rule 84.04(h). This Court,

on its own motion, dismissed Mr. Rosa’s appeal for failure to file a brief conforming to the

Supreme Court Rules. The Court subsequently granted Mr. Rosa’s motion to reinstate the appeal

and again notified Mr. Rosa that his brief failed to comply with Rule 84.04(h) and Eastern District

Rule 365 as it did not contain an appendix. We informed Mr. Rosa that his failure to correct the

deficiency within ten days would result in an order being entered striking the brief. To date, Mr.

Rosa has yet to file an appendix or a new brief. Respondent, the Missouri Department of Social

Services, Children’s Division, (“Department”) has filed a motion to strike Mr. Rosa’s brief based

on Mr. Rosa’s failure to comply with this Court’s order and file an appendix. The Department has

also noted the presence of multiple briefing deficiencies in Mr. Rosa’s brief. This Court ordered

the Department’s motion taken with the case. 1

Discussion

Mr. Rosa represented himself without the assistance of an attorney. He has the right to do

so. Pearson v. Keystone Temporary Assignment Group, Inc., 588 S.W.3d 546, 549 (Mo. App.

E.D. 2010). “We cannot and will not penalize [Mr. Rosa] for not utilizing the assistance of an

attorney; but likewise, we cannot and will not lend [him] any assistance in prosecuting his appeal

because he is not represented by counsel.” Pearson, 588 S.W.3d at 549 (internal quotation

omitted). “This is not a matter of our personal preference, but rather the demands placed upon us

by our oaths of office, our commitment to uphold the rule of law, and the very nature of the

1 Upon Mr. Rosa’s request, this appeal was set for oral argument before this Court on October 2, 2024. Mr. Rosa, however, did not appear for that argument.

3 adversarial process, which requires fair, impartial and disinterested decision makers.” Pearson,

588 S.W.3d at 549 (internal quotation omitted). “We would be true to none of these principles if

we applied the law in one manner to litigants represented by counsel and then in a different manner

to litigants that are not represented by counsel.” Pearson, 588 S.W.3d at 549 (internal quotation

omitted). “We recognize the problems faced by pro se litigants, but we cannot relax our standards

for non-lawyers.” Kruse v. Karlan, 692 S.W.3d 43, 47 (Mo. App. E.D. 2024).

Accordingly, pro se appellants such as Mr. Rosa “are bound by the same rules as a party

represented by an attorney.” Pearson, 588 S.W.3d at 549. Pro se appellants must comply with

the Supreme Court Rules, including Rule 84.04, which sets out the requirements for appellate

briefs. Pearson, 588 S.W.3d at 549. “We do not grant pro se appellants preferential treatment

regarding compliance with those rules.” Pearson, 588 S.W.3d at 550. “This is not from lack of

sympathy, but rather is necessitated by the requirement of judicial impartiality, judicial economy,

and fairness to all parties.” Pearson, 588 S.W.3d at 550.

Compliance with the requirements of Rule 84.04 is mandatory. Pearson, 588 S.W.3d at

550. In addition to the other Rule 84.04 deficiencies in Mr. Rosa’s brief, Mr. Rosa failed to comply

with Rule 84.04(h), which requires that a party’s brief shall be accompanied by a separate appendix

containing the judgment from which the party appeals, including the relevant findings of fact and

conclusions of law filed in a judge-tried case or by an administrative agency. The appendix shall

also contain the “complete text of all statutes, ordinances, rules of court, or agency rules claimed

to be controlling as to a point on appeal.” 2 Rule 84.04(h). “An appendix also may set forth matters

pertinent to the issues discussed in the brief such as copies of exhibits, excerpts from the written

record, and copies of new cases or other pertinent authorities.” Rule 84.04(h).

2 The appendix must also include the “complete text of any instruction to which a point relied on relates.” There are no instructions at issue in this appeal.

4 This Court has informed Mr. Rosa of his briefing failures, including his failure to file an

appendix on three separate occasions and has repeatedly directed him to file an appendix. Mr.

Rosa filed his initial non-compliant brief on March 18, 2024, but failed to file an appendix. This

Court informed Mr. Rosa of the numerous briefing deficiencies, including his failure to include an

appendix. By order, this Court granted Mr. Rosa additional time in which to file a brief that

complied with Rule 84.04, and expressly noted that his failure to do so would result in his appeal

being dismissed. Mr. Rosa filed an amended brief, but again failed to file an appendix, and his

amended brief still failed to comply with Rule 84.04 in numerous respects. Due to the numerous

deficiencies in Mr. Rosa’s brief, this Court dismissed Mr. Rosa’s appeal. In our order dismissing

the appeal, this Court again set out the briefing deficiencies, including Mr. Rosa’s failure to file an

appendix as required by Rule 84.04(h). Mr. Rosa filed a motion requesting the Court to reinstate

his appeal. After this Court reinstated Mr. Rosa’s appeal, we again notified Mr. Rosa of his failure

to comply with the Rules and his failure to include an appendix with his brief. We directed him

to file an appendix within ten days, expressly noting that his failure to do so would result in his

brief being stricken. To date, Mr. Rosa has yet to file an appendix.

Failure to file an appendix is sufficient grounds for dismissal of the appeal. See, Kruse,

692 S.W.3d at 47. Due to Mr. Rosa’s failure to comply with Rule 84.04, and pursuant to the

Court’s order of June 25, 2024, Mr. Rosa’s appellant’s brief is stricken. Consequently, this appeal

is dismissed. The Department’s motion to strike Mr. Rosa’s brief based on Mr. Rosa’s failure to

include an appendix is denied as moot. “We do not take lightly the decision to dismiss an appeal

without reaching its merits; but we also do not take lightly the mandatory briefing requirements

set forth by the Supreme Court of Missouri.” Parkside Financial Bank & Trust v. Allen, 688

S.W.3d 83, 90 (Mo. App. E.D. 2024); see Brown v. Brown, 645 S.W.3d 75, 81 (Mo. App. W.D.

5 2022) (noting dismissal is particularly appropriate where an appellant, after being put on notice,

makes no effort to correct deficiencies in their brief); see also Lexow v. Boeing, Co., 643 S.W.3d

501, 509 (Mo. banc 2022) (finding significant to its dismissal the appellant’s failure to correct

briefing deficiencies cited by the Court of Appeals).

This Court has discretion to conduct ex gratia review of a non-compliant brief. Parkside

Financial Bank & Trust, 688 S.W.3d at 89. We only do so, however, “where we can ascertain the

gist of an appellant’s arguments, notwithstanding minor shortcomings in briefing.” Parkside

Financial Bank & Trust, 688 S.W.3d at 89 (emphasis in original; internal quotation omitted). In

some cases, however, a brief may be so deficient that it precludes appellate review. And such is

the case here. The shortcomings in Mr. Rosa’s briefing are not minor, but rather are numerous

and pervasive. An appendix could have aided this Court in an ex gratia review, but none was filed

here. To conduct any meaningful review, this Court would be forced to speculate, make

assumptions, and shoulder the inappropriate burden of not only ferreting out and reconstructing

the facts of the case, but also crafting Mr. Rosa’s argument on appeal. In short, we are not able to

conduct a review of this case without becoming Mr. Rosa’s advocate. This we cannot do.

Thummel v. King, 570 S.W.2d 679, 686 (Mo. banc 1978); Pearson, 588 S.W.3d at 552.

Appeal dismissed.

_______________________________ Angela T. Quigless, J. James M. Dowd, P.J., and Cristian M. Stevens, J., concur.