Officers admit not reading judge's order in murdered toddler case

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Father told dispatcher he didn't have custody

By Ben Carlson

The Lawrenceburg police officers who took a 21-month-old child away from its mother and gave it to its father last year have admitted under oath that they didn’t read in its entirety a document they thought gave them to authority to do so.

The child, Cole Frazier, was later shot to death by his father in a murder-suicide, touching off a firestorm of criticism against Lawrenceburg police and a resulting federal lawsuit.

Compounding the department’s problems is the recent release of an audio recording that includes the boy’s father, Timothy Frazier, telling a Lawrenceburg police dispatcher at least three times that he did not have custody of the child the day before police handed the boy to him.

Frazier can be heard on the recording telling police that Candice Dempsey, the child’s mother, was threatening to wreck her car with the child in it, and that he was worried about the child’s safety.

After telling the dispatcher that he didn’t have custody, Frazier said, “Until the hearing, have him put in a, what do they call it? I hate to do it. A shelter, I hate to do it.”

“The father, a layman, got the judge’s motion, read it and clearly knew that the order did not give him temporary custody,” said Ron Hillerich, an attorney representing Dempsey in the lawsuit. “When he called the Lawrenceburg Police Department, one of the first things he was asked was if the EPO [emergency protection order] gave him custody. He said no, it didn’t.

“That conversation clearly shows that a layperson knew he was not supposed to have custody, but the Lawrenceburg Police Department had trouble interpreting the order. I find that shocking.”

Lt. Chris Atkins, the officer who removed the child, apparently did so based on an emergency protection order issued last May 13 by a Nelson County judge.

Atkins apparently used that order when removing the child from his mother.

However, the judge did not check off the section of the order that awards temporary custody.

What might have confused him, though, was that the order was issued in the name of the father and the child, and the judge did check off a spot on the order that forbid the mother from having any contact with the father or the child.

The protection order was issued based on a motion for relief filed May 13 by the father. In it, he requested custody of the child because he was worried about its safety.

A judge also signed that document, but in the comments section the judge referred the father to the Cabinet for Health and Family Services or law enforcement if he was worried about the child’s safety.

Testimony taken last November from Atkins and officer Nathan Doty reveals that neither read the entire document and that both sought clarification about the document before the child was removed.

Atkins testified that he received the document from Doty, who was originally supposed to serve it but couldn’t because he had to assist with after-school traffic.

Atkins said he met Doty and asked him if he verified the order. Doty said yes, and testified that he did so by speaking with a person in the Nelson County Circuit Clerk’s office who was in charge of EPOs.

After receiving the order, Atkins testified that he “glanced over it” before going to Dempsey’s home. Once there, he testified that he called Tiffany Azzinaro with the Anderson County Attorney’s office and also spoke by phone with Dempsey’s attorney, Marie Hellard.

That set off a griping exchange between them, including Atkins admitting that the box that was supposed to be checked off by the judge to order a change in custody was not checked.

“Do you remember Ms. Hellard asking you ‘is the box for change of custody checked?’” Hillerich asked Atkins during his deposition.

Atkins: “I don’t remember that.”

Hillerich: “You know there is a specific box on here for change of custody.”

Atkins: “Yes.”

Hillerich: “There’s a specific statute that provides for that, don’t you?”

Atkins: “Yes.”

Hillerich: “That box was not checked, was it?”

Atkins: “No, it was not.”

That exchange was followed by Hillerich questioning Atkins why he handed the child over to its father, and Atkins admitting that the order did not require him to do so.

Hillerich: “Well, this order did not say to give custody to Tim Frazier, did it?

Atkins: “The actual order?”

Hillerich: “The order, yes.”

Atkins: “It does not say to give the order to anybody.”

Hillerich: “But you elected on your own to give the custody to Tim Frazier, didn’t you?”

Atkins: “Tim was represented on here as the father of the child.”

Hillerich: “But that’s not what the judge said.”

Atkins: “He said the child had to be outside five hundred feet from the [mother] and that they were allowed no contact [or] communication.”

Hillerich: “But the judge, assuming that’s correct, didn’t say to give the child to his father, did he?”

Atkins: “He didn’t say to give the child to anybody.”

Hillerich: “You took that on your own, didn’t you?”

Atkins: “Made sense.”

The trial is scheduled to begin in October in Frankfort.

Hillerich said he is seeking damages for the destruction of earning capacity for the child’s estate, the mother’s loss of love and affection along with punitive damages.

E-mail Ben Carlson at bcarlson@theandersonnews.com.

Click here to listen to the audio of a phone call between Timothy Frazier, the child's father, and a 911 dispatcher on the day before officers took the boy away from his mother.