CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; C.R., A MINOR CHILD; C.R., MOTHER OF MINOR CHILD; AND C.R., CUSTODIAL PARTY APPELLEES
FROM CLARK CIRCUIT COURT HONORABLE NORA J. SHEPHERD, JUDGE
ACTION NO. 16-J-00350-001
FOR APPELLANT: Dodd D. Dixon Winchester, Kentucky.
FOR APPELLEE COMMONWEALTH OF KENTUCKY: Erica Rompf Brian
Thomas Winchester, Kentucky.
BEFORE: ACREE, D. LAMBERT, AND J. LAMBERT, JUDGES.
LAMBERT, J., JUDGE
(the Father) appeals the Clark Circuit Court's finding
that his minor child C.R. (the Child) was neglected or abused
by the Father. We reverse.
Father and the Mother (also named C.R.) lived together but
never married. In June 2016, during the Mother's
pregnancy with the Child, the Father voluntarily entered a
suboxone clinic (Beall Recovery Center). On his intake forms,
the Father admitted using street drugs as recently as the day
before. The Mother had substance abuse issues as well.
Child was born later that summer. She tested positive for
suboxone and had several other drug-related health issues.
The Cabinet for Health and Family Services (the Cabinet)
placed the Child with the maternal Grandmother (whose
initials are also C.R.). The Parents submitted to a case plan
in which, among other things, they were to complete drug
counseling and submit to random drug screenings. A petition
seeking to adjudge the Child dependent, neglected or abused
was filed by the Cabinet on November 29, 2016.
the Father had continued with his case plan and had secured
employment. He began working two full-time jobs. The Child
remained in the care of her maternal Grandmother. The Father
enjoyed supervised visitation, although it had been ordered
that he was entitled to unsupervised visitation. However, the
Grandmother would not allow him to have unsupervised visits
with the Child. The Father completed parenting classes and an
anger and aggression assessment, all to the Cabinet's
satisfaction. In the Cabinet's dispositional report, upon
which the circuit court relied, there were no further
recommendations of actions for the Father to complete.
to the commencement of the hearing, the Cabinet requested
that its petition against the Mother be continued for two
weeks with the intent that it be dismissed for her. The
circuit court granted this request, and evidence was then
presented against the Father. The Cabinet proffered one
witness, namely, the social worker involved in the
investigation of the allegations pertaining to the Father.
The witness introduced the Father's certified records
from Beall Recovery Center as well as Web-certified records
of the Father's drug screens. The witness testified to
some inconsistencies in the drug screen results, particularly
that the Father tested positive for a non-prescribed
medication on screenings administered by the Cabinet (whereas
the prescription drug in question was not present in the
Father's near-contemporaneous screenings performed by the
Beall Recovery Center). The witness further testified about
the Father's termination of parental rights seven years
prior to children not related to this allegation.
Father testified on his own behalf, chiefly about his
recovery efforts. He admitted that he was a struggling addict
and that he had improperly stretched a prescription for
suboxone, but he explained that, as a recent hire for his two
full-time jobs, he was unable to attend all his appointments
at the clinic. The Father stated that he had gotten back on
track with the schedule and that he had completed all
objectives on his case plan with the Cabinet. The Father
stated that he had not used street drugs since prior to his
treatment at Beall Recovery Center in June 2016.
conclusion of the hearing, the circuit court found that the
Child was neglected by the Father based on the allegations in
the Cabinet's petition. Specifically, the circuit court
held that the Cabinet had sustained its burden of proving its
petition by a preponderance of the evidence. The Court found
that the Father had "significant long-term substance
abuse issues that have been largely unaddressed for a period
of time." The Court stated on the record that it was
"absolutely uncontested" that the Father had recent
use of heroin, Percocet, and suboxone "off the
street." Although the Court commended the Father for
taking some steps to correct the problem, it cautioned the
Father not to "be in denial about this."
disposition hearing held the following month, the
Cabinet's witness repeated its intention to reunite the
Mother with the Child (as well as with the Mother's older
child who was also in the Grandmother's custody). There
was also testimony that the Grandmother was resisting
visitation with the Father, but the circuit court stated
that, "if the Father is appropriate, sober, and working
on his case plan, he is entitled to time-sharing pending the
outcome of this litigation." The Father appeals from the
disposition order as well as the orders following the prior
hearings held in Clark Circuit Court.
Father first argues that the evidence against him was
insufficient to demonstrate risk of harm of neglect by the
statutory threshold, enunciated ...