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C.B. v. Cabinet For Health and Family Services

Court of Appeals of Kentucky

January 26, 2018

C.B. APPELLANT
v.
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

         APPEAL FROM CLARK CIRCUIT COURT HONORABLE NORA J. SHEPHERD, JUDGE ACTION NO. 16-J-00350-001

          BRIEFS FOR APPELLANT: Dodd D. Dixon Winchester, Kentucky.

          BRIEF FOR APPELLEE COMMONWEALTH OF KENTUCKY: Erica Rompf Brian Thomas Winchester, Kentucky.

          BEFORE: ACREE, D. LAMBERT, AND J. LAMBERT, JUDGES.

          LAMBERT, J., JUDGE

         C.B. (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.

         The 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.

         The 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.

         Meanwhile 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.

         Prior 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.

         The 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.

         At the 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."

         At the 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.

         The Father first argues that the evidence against him was insufficient to demonstrate risk of harm of neglect by the statutory threshold, enunciated ...


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