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W.L.F. v. Commonwealth

Court of Appeals of Kentucky

December 21, 2018

W.L.F. APPELLANT
v.
COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH & FAMILY SERVICES; W.C.F., A MINOR CHILD; A.N.F.; AND J.B. AND P.B., CUSTODIANS OF W.C.F. APPELLEES

          APPEAL FROM SPENCER FAMILY COURT HONORABLE S. MARIE HELLARD, JUDGE ACTION NOS. 15-J-00052-001 AND 15-J-00052-002

          BRIEFS FOR APPELLANT: E. Gregory Goatley Springfield, Kentucky

          BRIEF FOR APPELLEES, J.B. AND P.B.: Erin R. Ratliff Shelbyville, Kentucky

          BEFORE: J. LAMBERT, MAZE, AND SMALLWOOD, [1] JUDGES.

          OPINION AND ORDER DISMISSING

          JAMES H. LAMBERT, JUDGE

         W.L.F. (the father) has appealed from the June 6, 2017, findings of fact, conclusions of law, and order of the Spencer Family Court denying his motion to have W.C.F. (the child) placed with him or to schedule timesharing with him. Because we hold that the father has appealed from an interlocutory order, we must dismiss the above-styled appeal.

         The father and A.N.F. (the mother) are the biological parents of the child, who was born in May 2010. The parents were never married. In September 2015, the Cabinet for Health and Family Services (the Cabinet) filed a Juvenile Dependency, Neglect and Abuse (DNA) Petition (15-J-00052-001) alleging that the father had neglected the child. As grounds, the Cabinet stated:

[O]n September 2, 2015, in Spencer County, Kentucky, . . . [the child] was exposed to a domestic violence altercation between his father . . . and great uncle . . . and PGF [paternal grandfather]. . . . PGF filed an EPO and the police were contacted and [the father] was arrested for assault 4th degree. PGF reports in the EPO and the police report in the JC-3 that [the father] was under the influence of drugs at the time of the altercation. PGF requested that the EPO be dismissed but [the father] was found guilty of the assault charge. [The father] admitted there was an altercation but minimized the incident. [The child] shared with DCBS that the altercation scared him and that his father scared him with what he had done to PGF and great uncle. [The father] was in a caretaker role of [the child] at the time of the altercation.

         The family court held a temporary removal hearing on September 15, 2015, during which the father stipulated to reasonable grounds for the child's removal, and the court placed the child with the mother. The court ordered both parents to comply with several terms. The mother was to obtain counseling for the child, cooperate with the Department of Community Based Services (DCBS) and case planning, send the child to school, and have the child present for all supervised visitations. The father's terms were more extensive. He was to undergo drug testing as requested, obtain a drug assessment and follow all recommendations, attend drug/chemical dependency counseling, obtain a perpetrator anger management assessment and follow all recommendations, cooperate with DCBS and case planning, and have supervised visitation with an adult approved by DCBS. The court continued the matter for further proceedings.

         On October 19, 2015, the father entered a stipulation of neglect and waived a formal adjudication hearing, and the following day, the family court entered an adjudication order finding the child to be neglected pursuant to Kentucky Revised Statutes (KRS) 600.020(1), continuing to place the child with the mother, and permitting the father to have supervised visitation at the Butterfly House. The court found that the father had been charged with fourth-degree assault that had been committed in the child's presence.

         In a disposition report filed in November 2015, the Cabinet stated that the child remained in the temporary custody of the mother, who was ensuring his needs were met, and was attending kindergarten. He was in counseling for behavioral issues. The father was incarcerated in the Nelson County jail for probation violations and would not be eligible for parole until April 2016. He had admitted to being under the influence of drugs during the 2015 incident. The Cabinet recommended that the mother be granted sole custody of the child and noted that the father could not complete any services or work on his case plan because he was incarcerated. The Cabinet recommended that the court put orders in place for the father once he was released and included a list of such recommendations.

         The family court entered a disposition order on November 16, 2015, in which it ordered the child to remain in the custody of the mother. The father was present at the hearing. The court ultimately adopted the Cabinet's recommendations for the father, which included that he complete substance abuse and domestic violence assessments and follow all recommendations once released from jail. Prior to seeking custody or unsupervised visitation, the father was required to: 1) complete substance abuse treatment and remain drug-free for at least six months; 2) have a stable income and housing for at least six months; 3) complete domestic violence and anger management services; 4) consistently attend supervised visitations at the Butterfly House that he would arrange and pay for; and 5) complete parenting classes "to assist him with being an appropriate and positive influence" for the child. The court removed the case from the active docket because the child had been placed with the mother.

         On April 21, 2016, J.B. and P.B., the maternal grandparents, filed a second DNA petition, this time against the mother, who had custody. The father remained incarcerated at that time. They alleged that the mother had neglected the child on April 16, 2016, stating:

Mother . . . not home when [the child] was to be let off school bus due to drug relapse (heroin). [The grandmother (P.B.)] had to pick him up at Bear Care. [The mother] has not seen [the child] since Monday, ...

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