Opinion
NO. 2017-CA-000971-ME NO. 2017-CA-000972-ME
01-11-2019
C.R.K. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; and C.T.C., a minor child APPELLEES AND C.R.K. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; and C.A.F.C, a minor child APPELLEES
NOT TO BE PUBLISHED APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE TRACI H. BRISLIN, JUDGE
ACTION NO. 16-AD-00338 APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE TRACI H. BRISLIN, JUDGE
ACTION NO. 16-AD-00339 OPINION AND ORDER
DISMISSING
* * * * * *
BEFORE: COMBS, J. LAMBERT AND K. THOMPSON, JUDGES. COMBS, JUDGE: This case involves an involuntary termination of the parental rights of the mother, C.R.K, of two minor children.
On March 20, 2018, this Court entered Show Cause Orders in each of the appeals in relevant part as follows:
On May 26, 2017, appellant tendered a Notice of Appeal and Motion to proceed In Forma Pauperis from an April 4, 2017 judgment of the Fayette Circuit Court terminating appellant's parental rights and a May 12, 2017 order denying a Motion to Alter, Amend or Vacate the judgment. The Motion to Alter, Amend or Vacate made pursuant to CR 59.05 was filed with the circuit court on April 19, 2017 and does not state a date of service. Because the Notice of Appeal was tendered more than 30 days from the date of entry of the judgment and the Motion to Alter, Amend or Vacate does [not] indicate it was served within 10 days of entry of the judgment, it appears that the Notice of Appeal was untimely filed.
Kentucky Rules of Civil Procedure.
On March 26, 2018, Appellant, C.R.K. (Mother), by counsel, filed a Response to Show Cause Order and Agreed Order in relevant part:
1. On May 12, 2017, while hearing the Motion to Alter, Amend or Vacate, the Fayette Circuit Court, on the outset, addressed the time filing issue [ ] (Video Log DVD at 10:14:59).
2. In response to the time filing issue, Cabinet's Counsel, in favor of Appellant Mother, argued the merits of CR 60.02.
3. Also, in response, Cabinet's Counsel, in favor of Appellant Mother, argued that this Appeal was already ongoing due to the filings of Appellant Father.(Emphasis original.) The Response is signed as "Having Seen and Agreed to" by Assistant Counsel for the Cabinet and Mother's counsel.
4. Upon hearing argument of counsel, the Fayette Circuit Court ruled that Appellant Mother could proceed with subsequent filings regarding Appellant Mother's Appeal.
FURTHERMORE
5. In regard to the foregoing, Cabinet's Counsel HEREBY AGREES to procedurally allow Appellant Mother's Appeal to not be dismissed.
The children's father's parental rights were also terminated and he appealed in Appeal Nos. 2017-CA-000763-ME and 2017-CA-000764-ME. His appeals are also assigned to this panel.
By Order of May 18, 2018, this Court treated Mother's Response as a joint response and passed the issue of whether the appeal was untimely to this panel. The Order also reflects that Mother's counsel moved to withdraw as appointed counsel and for leave to file a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and A.C. v. Cabinet for Health & Family Servs., 362 S.W.3d 361 (Ky. App. 2012). The motion to withdraw was also passed to this panel, the Anders brief was ordered filed, and Mother was permitted to proceed pro se and file a supplemental brief within 30 days. Furthermore, "[o]nce all permitted briefs have been filed, the case shall stand submitted for consideration of the show cause and, if warranted, the merits." Mother has not filed a supplemental brief.
We now consider the show cause order. Mother's Response fails to resolve the issue. CR 59.05 provides that "[a] motion to alter or amend a judgment, or to vacate a judgment and enter a new one, shall be served not later than 10 days after entry of the final judgment." We cannot determine when Mother served the CR 59.05 motions because the certificates of service are undated. They only state "[t]his is to certify that a true copy of the foregoing Motion was hand delivered or mailed postage prepaid to the following" -- followed by the distribution list.
The motions were heard on May 12, 2017. We have reviewed the video record of that proceeding. The court recognized that there was an issue with timeliness -- although it was under the impression that a CR 59.05 motion had to be filed within ten days of the date of entry of the judgment rather than served within ten days. The court indicated that it would allow the motions to be orally amended to be heard under CR 60.02, but the orders which it entered at the close of the hearing reflect otherwise:
Regardless, "a party cannot use a CR 60.02 motion to circumvent an untimely CR 59.05 motion." McWhorter v. Handy, 2014-CA-001238-MR, 2016 WL 4410095, at *2 (Ky. App. Aug. 19, 2016).
This matter having come before the Court upon Respondent's Re-Noticed Motion to Alter, Amend or Vacate and the Court having reviewed the record and being otherwise sufficiently advised, IT IS HEREBY ORDERED that Respondent's Motion to Alter, Amend or Vacate is OVERRULED.
Courts speak through their written orders. Oakley v. Oakley, 391 S.W.3d 377 (Ky. App. 2012). "When there is a conflict between a court's oral statements and the written judgment, the written judgment controls." Machniak v. Commonwealth, 351 S.W.3d 648, 652 (Ky. 2011). Mother's Notices of Appeal also state that she appealed from the judgment entered April 4, 2017, and the "Order overruling her Motion to Alter, Amend or Vacate entered May 12, 2017."
Mother's CR 59.05 motions were untimely. She failed to prove that they were served within 10 days of the date of entry of the judgments terminating her parental rights. Commonwealth v. Steadman, 411 S.W.3d 717 (Ky. 2013). The effect of the failure to timely file a CR 59.05 motion is that the 30-day time period during which an appeal could have been taken is not tolled. Marrs Elec. Co., Inc. v. Rubloff Bashford, LLC, 190 S.W.3d 363, 367 (Ky. App. 2006).
"[A] notice of appeal must be filed within thirty days after notation of service of the judgment or order. CR 73.02(1)(a). Compliance with the time requirements of CR 73.02 is mandatory[.]" Stinson v. Stinson, 381 S.W.3d 333, 336 (Ky. App. 2012) (citation and internal quotation marks omitted).
Mother's Notices of Appeal were untimely filed. Despite the Cabinet's apparent agreement to allow these appeals to proceed, they must be dismissed. See Breathitt County Bd. of Educ. v. Prater, 292 S.W.3d 883, 886 (Ky. 2009) ("[A]ppellate jurisdiction cannot be conferred by consent of the parties[.]").
We note that the court did enter an Amended Order Terminating Parental Rights and Order of Judgment in Case No. 16-AD-00338 on May 3, 2017, to correct spelling of the child C.T.C.'s name. No other changes were made. The Order granting the Cabinet's motion to amend states that "[t]he Amended Findings of Facts and Judgment shall be entered for the purposes of correcting the typographical error." That order cannot extend the time to appeal because no substantive changes were made. United Tobacco Warehouse, Inc. v. Southern States Frankfort Co-op., Inc., 737 S.W.2d 708 (Ky. App. 1987) (motion to correct clerical error does not toll 30 days for filing notice of appeal); Brennan v. East Kentucky Power Co-op., Inc., 2011-CA-001115-MR, 2013 WL 5592375, at *2 (Ky. App. Oct. 11, 2013) (where amended judgment did not alter substance of original judgment, the time for perfecting the appeal dates from entry of the original judgment). --------
IT IS HEREBY ORDERED that the above-styled appeals are DISMISSED.
ALL CONCUR. ENTERED: January 11, 2019
/s/ Sara Combs
JUDGE, COURT OF APPEALS