COMMONWEALTH OF KENTUCKY, CABINET FOR FAMILIES AND CHILDREN v. P.L.O. AND S.C.T. AND THE CHILD, A.B.T.
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RENDERED: JUNE 13, 2003; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2001-CA-002317-MR
COMMONWEALTH OF KENTUCKY,
CABINET FOR FAMILIES AND CHILDREN
APPELLANT
APPEAL FROM LAUREL CIRCUIT COURT
HONORABLE LEWIS B. HOPPER, JUDGE
ACTION NO. 98-AD-00033
v.
P.L.O. AND S.C.T.
AND THE CHILD, A.B.T.
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
JOHNSON, SCHRODER, AND TACKETT, JUDGES.
TACKETT, JUDGE:
The Cabinet for Families and Children (the
Cabinet) appeals from the judgment of the Laurel Circuit Court,
which dismissed an action to terminate the parental rights of
P.L.O., with prejudice.
We affirm.
In December 1998, the Cabinet filed a petition for
termination of P.L.O.’s parental rights to the subject infant,
A.B.T., in Laurel Circuit Court.
The trial court entered an
order on June 8, 2001, granting the motion of the appellee to
dismiss.
Over the next four months, the circuit court entered
four orders, the effect of which were to correct or vacate a
previous order.
The confusion centered on whether the dismissal
would be with or without prejudice.
On July 2, 2001, the circuit court corrected the order
of June 8, 2001, nunc pro tunc, by adding, “It is hereby ORDERED
that this action is dismissed, without prejudice.”
2, 2001 (emphasis added).
2001.
Order, July
A third order was issued on August 8,
This order corrected the June 8, 2001 order to read, in
pertinent part, “It is hereby ORDERED that this action is
dismissed, with prejudice, as to any events up to the date of
this dismissal.”
Order, August 8, 2001 (emphasis added).
On
August 15, 2001, a fourth order was issued, correcting nunc pro
tunc the June 8, 2001 order by adding the following sentence:
“It is hereby ORDERED that this action is dismissed, without
prejudice.”
Order, August 15, 2001 (emphasis added).
Finally,
on October 5, 2001, a fifth order was entered, vacating the
order of August 15, 2001, the effect of which was to dismiss the
action, with prejudice, as to any events up to the date of this
dismissal thereby reinstating the order of August 8, 2001.
It
is from this order that the Cabinet appeals.
The Cabinet argues that the phrase “as to any events
up to the date of this dismissal” attaches an impermissible
condition to the judgment of the circuit court.
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Such
contention, it is argued, is supported in the case of Cabinet
for Human Resources v. J.B.B., Ky. App., 772 S.W.2d 646 (1989).
In that case, our court held that the “circuit court exceeded
the limited authority granted it” by KRS 625.090 (6) [then, KRS
625.090 (4)] when it attached conditions1 on its final judgment
in a termination of parental rights action.
Id. at 647.
No conditions were attached to the order involved in
the case before us.
The fact that the action was dismissed with
prejudice is not tantamount to the conditional nature of a
judgment, hinging on the fulfillment of some proviso.
Instead,
it bears only on the conclusive nature of the adjudication.
Black’s Law Dictionary, 5th ed., p. 1435.
The judgment of the
circuit court did not exceed the “limited authority” granted it
by KRS 625.090 (6) when it dismissed the Cabinet’s petition with
prejudice.
The Cabinet further argues that the inclusion of the
phrase “as to any events up to the date of this dismissal”
conflicts with applicable case law, in that it would
impermissibly preclude from consideration in a second action the
facts extant as of the time of the first judgment.
In support,
the Cabinet cites M.P.S. v. Cabinet for Human Resources, Ky.
1
Here, conditions were imposed in that the court ruled that parental rights
would not be terminated, provided that both parents restrained from engaging
in certain behavior, continued receiving counseling for themselves, and
continued obtaining counseling for the child. Cabinet for Human Resources v.
J.B.B., 772 S.W.2d at 647.
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App., 979 S.W.2d 114 (1998), in which this court held that where
the evidence in a second proceeding is “substantially greater”
than in the first, the former opinion is not controlling.2
While this is an accurate statement of the law, the
circumstances of this case do not permit the application of
M.P.S. v. Cabinet for Human Resources.
The crux of the matter
is that the Cabinet has failed to present an issue that is ripe
for appeal.
A controversy is not justiciable, or ripe, when it
includes questions “which may never arise or which are merely
advisory . . . [or] hypothetical.
S.W.2d 858, 860 (1998).
Curry v. Coyne, Ky. App., 992
The United States Constitution “permits
only adjudication of actual cases and controversies . . .
[, which] requires that a controversy be ripe.”
Associated
Industries of Kentucky v. Commonwealth, Ky., 912 S.W.2d 947, 951
(1995) (citing Flast v. Cohen, 392 U.S. 83 (1968); Pacific Gas &
Elec. V. State Energy Resources Conservation & Dev. Comm’n, 461
U.S. 190 (1983)).
In the case sub judice, no second action has been
commenced, nor has there been a “substantially greater”
2
The former opinion would otherwise control as a result of the operation of
the “law of the case” doctrine.
M.P.S. v. Cabinet for Human Resources, 979
S.W.2d at 116. The “law of the case” doctrine operates by
…requir[ing] a comparison of the evidence presented in the two
cases to determine if the substance and probative effect of the
evidence present in the second case were equal or superior to the
evidence present in the first case. A former opinion becomes the
law of the case only where the facts are substantially identical,
or the same, upon the trial of each case.
Id.
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production of evidence by the Cabinet.
If such had occurred, a
different case would have been presented.
Instead, the circuit
court has merely entered an order dismissing the Cabinet’s
petition for termination of the parental rights of P.L.O, with
prejudice.
A court must refrain from “decid[ing] speculative
rights or duties which may or may not arise in the future.
Veith v. City of Louisville, Ky., 355 S.W.2d 295 (1962).
It may
decide “only rights and duties about which there is a present
actual controversy.”
Id.
Since no second action has been
initiated, M.P.S. v. Cabinet for Human Resources is not
applicable to resolve these issues and indeed would be
speculative.
“It is not incumbent on the courts to decide
questions that may never arise.”
Alexander v. Hicks, Ky., 488
S.W.2d 336, 337 (1972).
The order of August 8, 2001, serves to correct nunc
pro tunc the order of June 8, 2001, by adding the sentence: “It
is hereby ORDERED that this action is dismissed, with prejudice,
as to any events up to the date of this dismissal.”
The effect
of a correction nunc pro tunc is retroactive, “allow[ing] an act
to be done after the time when [it] should [have] be[en] done.”
Black’s Law Dictionary, 5th ed., p. 964.
Thus, only those events
occurring prior to June 8, 2001, the date of the initial
judgment, are covered by the (final) order of October 5, 2001,
-5-
as a result of the retroactive effect of a nunc pro tunc
correction.
No other events have been considered.
By dismissing the petition with prejudice, the circuit
court merely determined that the facts, existing as of the time
of the first judgment and as presented by the Cabinet, were
insufficient to warrant termination of the parental rights of
P.L.O.
The circuit court has not spoken through its order as to
any future proceeding, nor has it attempted to preclude the use
of these facts in such proceeding where “substantially greater”
evidence could be introduced, as it was in M.P.S. v. Cabinet for
Human Resources.
Instead, the phrase “with prejudice, as to any
events up to the date of this dismissal” reflects only the
court’s conclusive adjudication of the evidence existing on or
before June 8, 2001.
Based upon a review of all the evidence, we do not
find that the trial court was clearly erroneous in including the
phrase in its order dismissing the Cabinet’s petition.
For the foregoing reasons, the judgment of the Laurel
Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
NO BRIEF FOR APPELLEES
Terry L. Morrison
Assistant Counsel
Frankfort, Kentucky
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